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THE FACTS The accused was charged under section 233 of the Communications & Multimedia Act 1998 ("the CMA") for posting an offensive remark regarding the Sultan of Perak. The prosecution adduced circumstantial evidence to show that the Internet Protocol address together with the Internet account and Media Access Control address of the computer used belonged to the accused. The accused was acquitted in the Sessions Court on the ground that there had been a break in the chain of evidence when the computer was transported from the Kota Kinabalu Airport to the Kuala Lumpur International Airport. The prosecution appealed.

THE SECTION Section 233 reads:
A person who –
  1. by means of any network facilities or network service or applications service knowingly 
    • makes, creates or solicits; and
    • initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or
  2. initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address, commits an offence.

HELD In allowing the appeal and ordering for the defence to be called, the court held that the communication was made from the computer and Internet account of the accused. There was no break in the chain of evidence as there was no necessity for the computer seized to remain in sight of the Investigating Officer at all times. Since the posting had the tendency to cause annoyance or abuse to any person, the intention of the accused was, therefore, proved through inferential evidence. There was no necessity to prove that the victim actually felt annoyed or abused.

AN ANALYSIS Unlike defamatory and seditious publications, statements that are obscene, indecent, false, menacing or offensive may encompass a wide scope as such adjectives are not defined. To compound the effect of section 233 of the CMA, it is not necessary to prove that the victim actually felt annoyed or abused. Although most of the cases prosecuted under section 233 involved insults against royalty2, the application of the section is not confined to a specific category of persons. Therefore, those who post their views and opinions, especially on social media platforms must be cautious of the nature of their comments before publishing them on the Internet.

For further insight in this area of law, please contact our Partners:
Darren Kor Yit Meng
Farah Mohamed Said