Muhammad Zaki Bin Omar (WA-62CY-16-07/2021)

Content

DI DALAM MAHKAMAH SESYEN JENAYAH SIBER DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR KES TANGKAP NO: WA-62CY-16-07/2021

Lampiran

Lampiran A Facebook post by “Muhammad Zaki Omar” on 4 April 2021 at 8:44p.m. Bersatu Dalam Menyebar Fitnah Puak-puak geng lokter maybe buat-buat lupa bagaimana mereka bersatu menyebarkan persepsi dan fitnah terhadap fitnah terhadap Doula Feb 2018. Sanggup kumpul duit untuk support geng mereka yang kena saman fitnah oleh kami. Lepas 2 tahun 8 bulan, terbukti 2 orang lokter menfitnah Doula. Sekor pun takde nak minta maaf. Puak-puak diorg ni siap kumpul duit untuk bayar jumlah saman yang diarahkan oleh Mahkamah. Walaupun bukti jelas geng mereka menfitnah. Ketua diorg dengan jawatan yang ada, buat bodo saja tanpa nak betulkan persepsi jahat yang puak mereka sebarkan. Sebab tu kalau nak tengok kat mana fitnah akhir zaman bercambah, tengoklah pada puak2 ni. Dengan vaksin yang mereka promote siang malam, yang sihat pun boleh jatuh sakit. Itupun tak dapat nak halang virus daripada bertapak dalam hidung mereka yang dah cucuk 2 dos. Korang rasa hidup korang bertambah baik dengan bergantung pada sijil tauliah diorg? Dah setahun lawan kobid.. Dah menang? Atau seorang demi seorang tumbang? Teruskan suntik.. Teruskan.. Saya sesekali takkan halang pun. Nak buat apa halang? Sendiri nak cucuk, sendiri tanggung. Aku nak tolong minta pampasan pun, aku jugak yang kena hentam balik. Sebab itu kalua nak tengok geng lokter paling fanatic di dunia, carilah di Malaysia. Takde logik yang boleh explain bentuk pemikiran mereka ni. Entah apa diorang makan aku pun tak tau.. Maybe asbab apa yang diorg cucuk kut.. Entah ler.. [4] On 6 June 2024, after putting the prosecution’s evidence through a maximum evaluation at the end of the prosecution’s case, I ruled that the prosecution had failed to establish a prima facie case on the preferred charge against the accused. Accordingly, the accused was acquitted and discharged. I now provide the grounds for my decision. PROSECUTION’S CASE [5] On 5 April 2021 at 2:43 p.m., the complainant (SP2) lodged a police report concerning a Facebook post made by a user with the profile of Muhammad Zaki Omar. The Facebook post contained statements, among others, on the implementation of vaccination and included an attachment of a cut-out from the Malaysiakini news article entitled “Kementerian sahkan kematian bayi akibat sesak nafas,” together with a picture of a man in a suit, with his eyes redacted, who is believed to be the Director General of Health at the material time. [6] The prosecution called 8 witnesses to establish its case, namely: a) Mohd Zamiri bin Sanin (“SP1”) b) Ropidah binti Mohammad (“SP2”) c) Azrinizam bin Ibrahim (“SP3”) d) Abdul A’zim bin Dahrin (“SP4”) e) Mohd Azmil bin Mohamed Nazim (“SP5”) f) Inspektor Muhamad Shamin bin Abdul Qasim (“SP6”) g) Inspektor Shahrir bin Mohamad (“SP7”) h) Inspektor Mohd Khabir bin Mohd Afandi (“SP8”) [7] The pertinent evidence of the prosecution witnesses is summarised as follows: a) SP2, the complainant in the case, testified that she had lodged a police report regarding the Facebook post made by one Muhammad Zaki bin Omar on 5 April 2021, upon being instructed by the Head of the Corporate Communication Unit under the Ministry of Health, Malaysia, Encik Azrinizam bin Ibrahim. She also testified that she had looked up the post and saw that it garnered 72 comments, 58 shares, and 481 likes at the material time. She further testified that only an excerpt from the post was cited in the police report. Upon being asked about her understanding of the post that she read, she testified that the post seemed to annoy its readers. b) During cross-examination, she testified that the only 3-line excerpt that she had quoted reflected on the Ministry of Health and seemed to annoy anyone who read it, including herself, since the post had commented on the Ministry of Health. She further testified that the post is offensive against the Ministry of Health, although she admitted that her police report seemed to indicate that the post would cause apprehensiveness rather than being offensive. She opined that the Malaysiakini news article entitled “Kementerian sahkan kematian bayi akibat sesak nafas” seemed to complement the 4th to 7th paragraphs of the post on the Doula’s case, which has been addressed by the Ministry of Health via a poster on their official website, marked as IDD8. Nonetheless, she emphasised that the focus of her report is only on the 8th to 9th paragraphs of the post and that the reason for her lodging the police report was because the said paragraphs were accusations that would undermine the government’s efforts to curb the spread of Covid-19 in our country. c) SP1, the Deputy Director of the Malaysian Communications and Multimedia Commission (“MCMC”) prepared an Analysis Report, dated 6 April 2021. d) Page 1 of the report presents a summary of the analysis, which confirmed that the individual believed to be managing the said Facebook account is Muhammad Zaki bin Omar, with the identity card number 850929-02-5911, the last known address at 394-C, Gong Pak Maseh, 21100 Kuala Terengganu, and the phone number 0137011828. Diagram 2 on page 2 of the report shows the status of the investigated Facebook post from the Facebook account of Muhammad Zaki Omar with the link https://www.facebook.com/story.php?story_fbid=1022262110 8809262&id=10186045, which was still active and accessible at the time the analysis was conducted. Diagram 3 on page 3 and Diagram 4 on page 4 respectively display one Facebook profile page and one Facebook profile photo, which are believed to be relevant to the investigated Facebook account of Muhammad Zaki Omar with the link https://www.facebook.com/abangki. Diagram 5 on page 5 discloses the source from which the contact number, purportedly linked to the accused, was acquired. Diagram 6 on page 6 reveals the registered telecommunication company associated with the said number. Diagram 7 on page 7 presents the personal information retrieved from the National Registration Department, believed to belong to the accused, namely, his full name, identity card number, date of birth, gender, race, religion, number, nationality, and address. Diagram 8 on page 8 shows the results of the comparison between the photograph of the accused from the Facebook account of Muhammad Zaki Omar and that from the National Registry Department, in which both individuals in the photographs are believed to be the same person. Page 9 of the report concludes that the individual believed to be managing the Facebook account of Muhammad Zaki Omar with the address https://www.facebook.com/abangki is Muhammad Zaki bin Omar (850929-02-5911). e) SP3, who was formerly the Head of the Corporate Communication Unit under the Ministry of Health, Malaysia, from 14 October 2020 to 31 December 2021, testified that he had requested SP2 to review the post uploaded by the Facebook account of Muhammad Zaki Omar upon receiving such instructions from the then Minister of Health, YB Dato’ Sri Dr. Adham bin Baba, who believed that the Facebook post would incite fear among the public. He referred to the eighth and ninth paragraphs from the Facebook post and testified that these paragraphs are assumptions that tend to create hesitancy among the public about receiving the Covid-19 vaccination, which would, in turn, undermine the government’s efforts to curb the Covid-19 pandemic, since the National Covid-19 Immunisation Programme was still considered a new initiative for citizens as of 5 April 2021. He also testified that the Facebook post, in its entirety, would exacerbate public fear and anxiety. The Facebook post is targeted against the Ministry of Health and could cause citizens to negatively perceive the credibility of the Ministry of Health and the government’s efforts to combat the Covid-19 disease. f) During cross-examination, he testified that the then Minister of Health had instructed him to lodge a police report against paragraphs 8 to 9 of the Facebook post only, and this instruction was executed by SP2 accordingly as part of her job scope. He also testified that the Covid-19 vaccination gained significant support from the citizens in April and May, although he further clarified that the Facebook post did affect citizens’ acceptance of the Covid-19 vaccine in April. He further testified that, although publications such as a news article entitled “Kajian dapati varian Delta boleh membiak dalam hidung – Dr Noor Hisham” from Astro AWANI on 21 August 2021, marked as IDD 10(a), and the social media post from the then Director General of Health, Tan Sri Dr Noor Hisham bin Abdullah, marked as IDD 10(b), seemed to have justified the accused’s post, the accuracy of the post, however, is still subject to clarification from the clinical officers. g) SP4, who is a technical assistant in the Digital Forensic Department of MCMC, testified that he had received an application from Inspektor Shahrir bin Mohamad on 3 September 2021. He then explained to the court the steps he took to handle and preserve the exhibit. The supporting documents were the Form of Request marked as ID 12, the Form of Evidence Handling marked as ID 13, and the Form of Chain of Custody marked as ID 21. He also identified the handphone and one SIM card as the exhibits received and confirmed that the exhibits were wrapped in a sealed plastic bag at the time he received them. During cross-examination, he explained that his role in the accused's case was to handle the exhibits only. h) SP5, who is the Deputy Director cum Senior Forensic Analyst in the Digital Department of MCMC, testified that he conducted a forensic analysis on the handphone and SIM card of the accused. The objectives of his analysis are (i) to ascertain that the accused had used the Facebook application on his handphone to upload the impugned post and (ii) to ascertain the time and date the accused uploaded the post in dispute. Based on the Digital Forensics Case Report prepared by him on 9 September 2021, the results of his analysis from pages 13 to 24 showed that the handphone was able to access the Facebook account of Muhammad Zaki as an administrator. During cross-examination, SP5 testified that he received the handphone on 3 September 2021, as recorded in the Form of Evidence Handling, and had stored the handphone in the exhibit room while it was with him for analysis. i) SP8, who used to work in the Unit Siasatan Jenayah Terkelas, Bukit Aman, identified the accused’s handphone that was confiscated for another case which was in relation to police report 725/21. He then testified that he had handed over the handphone to the MCMC officer for analysis purposes. Later, he passed the accused’s phone to SP7 for further investigation pursuant to the current case. j) During cross-examination, SP8 testified that the accused was charged with two offences under separate circumstances. He was the Inspector assigned to the case in relation to police report 725/21, while SP7 was tasked with being in charge of this case. He also testified that the investigation papers were sent to the Prosecution Division and instructions were given by the then Attorney General to charge the accused. DUTY OF THE COURT AT THE END OF THE PROSECUTION’S CASE [8] At the end of the prosecution’s case, the duty of the trial court falls under sections 173(f) and 180 of the Criminal Procedure Code, where the former applies to the Subordinate Courts and the latter applies to the High Court. As decided in Loh Kam Foo v Public Prosecutor [1997] 4 MLJ 113, “The procedure laid down in s 173 of the CPC for summary trials by magistrates is equally applicable to summary trials in the sessions court (see Tengku Abdul Aziz v PP [1951] MLJ 185 and Karpal Singh & Anor v PP [1991] 2 MLJ 544). As for trials before the High Court, s 180 is the only provision in the CPC on the duty of the court when the case for the prosecution is concluded.” [9] In a parallel fashion, both sections mandated the Court to consider whether the prosecution has established a prima facie case against the accused at the conclusion of its case. Subsequently, I refer to section 173(h) which states as follows: “(h) (i) If the Court finds that a prima facie case has been made out against the accused on the offence charged, the Court shall call upon the accused to enter on his defence. (ii) If the Court finds that a prima facie case has been made out against the accused on an offence other than the offence charged which the Court is competent to try and which in the opinion of the Court it ought to try, the Court shall amend the charge. (iii) For the purpose for subparagraphs (i) and (ii), a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction” [Emphasis mine] [10] The phrase “prima facie” was discussed extensively in the Federal Court case of Balachandran v PP [2005] 1 CLJ 85 as follows: “[21] …… A prima facie case is therefore one that is sufficient for the accused to be called upon to answer. This in turn means that the evidence adduced must be such that it can be overthrown only by evidence in rebuttal. …… [22] The result is that the force of the evidence adduced must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts exist or did happen. …… In order to make a finding either way the court must, at the close of the case for the prosecution, undertake a positive evaluation of the credibility and reliability of all the evidence adduced so as to determine whether the elements of the offence have been established. …… The test at the close of the case for the prosecution would therefore be: Is the evidence sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative then a prima facie case has been made out. This must, as of necessity, require a consideration of the existence of any reasonable doubt in the case for the prosecution. If there is any such doubt there can be no prima facie case. [23] As the accused can be convicted on the prima facie evidence it must have reached a standard which is capable of supporting a conviction beyond reasonable doubt. However it must be observed that it cannot, at that stage, be properly described as a case that has been proved beyond reasonable doubt. Proof beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt the other is the evidential burden on the accused to raise a reasonable doubt.” [11] To this end, the trial court is required to conduct a maximum evaluation of the evidence provided by the prosecution. It is the duty of the court to ensure that the prosecution has proved every ingredient of the offence with credible and reliable evidence that has been strained and sieved through a positive evaluation process. The evidence must be examined thoroughly. If the evaluation of the evidence casts doubt in the prosecution’s case, then there is no prima facie case. The defence ought not to be called merely to clarify such doubts. (refer Magendran Mohan v PP [2012] 5 MLRA 333) [12] There should not be material gap in the prosecution’s evidence (see Abdullah Zawawi v PP [1985] 2 MLJ 16). If two or more inferences were drawn from the prosecution’s case, the most favourable one should be admitted. (see Abdullah Zawawi bin Yusoff v PP [1993] 3 MLJ 1). FINDINGS AT THE END OF THE PROSECUTION’S CASE [13] Factoring in the duty of the trial court at the end of the prosecution’s case, I now turn to the charge for the accused stood charged. Section 233(1)(a) of the Act states as follows: A person who 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 commits an offence. [14] According to the High Court cases such as Arunakirinathan a/l Thillainathan lwn Pendakwa Raya dan satu lagi rayuan [2024] 9 MLJ 785 and Pendakwa Raya v Sharul Nizam Ab Rahim [2019] 1 LNS 2076, the main elements to be proven for the charge by the prosecution in this case would be: (a) the accused knowingly makes and initiates the transmission of any comment by means of any applications service; (b) the comment is offensive in character; (c) the accused did so with the intention to annoy another person. [15] Having assessed the totality of the evidence, I am fortified in holding that the prosecution has failed to prove a prima facie case against the accused. I will state my reasons as I set out my analysis for each element separately. [16] In respect of the first element, the prosecution needs to prove that the accused knowingly made and initiated the transmission of any comment by means of any applications service; [17] Upon revisiting the prosecution's evidence, particularly the forensic analysis conducted by SP1 on the Facebook account of Muhammad Zaki Omar and the accused’s handphone, two critical points emerge. First, it is evident that the accused's handphone was capable of accessing the Facebook account of Muhammad Zaki Omar in the capacity of an administrator. Second, the Facebook account accessible via the accused's handphone contained the Facebook post marked as Exhibit P6. There is no contestation regarding the ownership of the handphone, as SP8 testified unequivocally that the device was handed over to one of the police officers by the accused himself. Furthermore, the prosecution successfully established and maintained the integrity of the chain of custody in relation to the handphone, as substantiated through the corroborative testimonies of SP4, SP5, and SP8. [18] The presumption afforded under section 114A of the Evidence Act 1950 (EA) serves to further bolster the prosecution’s case. This provision, which is particularly relevant to establishing the authorship of online publications, strengthens the inference of the accused’s responsibility in relation to the Facebook post in question, thereby reinforcing the prosecution’s position. To prove the authorship of online publication, section 114A of the EA reads as follow: Presumption of fact in publication 114A. (1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved. (2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved. (3) Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved. (4) For the purpose of this section: (a) "network service" and "network service provider" have the meaning assigned to them in s. 6 of the Communications and Multimedia Act 1998 [Act 588]; and (b) "publication" means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer. [19] Section 114A of EA is a legal presumption that holds an individual responsible for publication. This provision may be invoked against any individual listed in the publication as the owner, host, administrator, editor or sub-editor. The term "presumption" properly describes the process whereby the existence of the presumed fact may be inferred from the established basic fact. It is an alternative method to prove a fact without the need for direct evidence and to establish a presumption of fact in publication, helping to identify and prove the identity of an anonymous person involved in an online publication. The rationale behind this provision is to address challenges and weaknesses related to cybercrime on the Internet, particularly the issue of anonymity. (Peguam Negara Malaysia v Mkini Dotcom Sdn. Bhd. & Anor [2021] 3 CLJ 603) [20] The testimonies of the prosecution witnesses have conclusively established that the Facebook account of Muhammad Zaki Omar belongs to the accused. Consequently, the prosecution had successfully demonstrated that the accused is the individual who uploaded the Facebook post (P6). This finding is further strengthened by the presumption of publication under section 114A of the Evidence Act. Hence, I am satisfied that the prosecution has successfully proved the first element of the charge. [21] I now proceed to address the second element of the charge, which requires the prosecution to establish that the Facebook post identified as Exhibit P6 is offensive in nature. The essence of the allegation against the accused is that the Facebook post constitutes “komunikasi yang jelik sifatnya” under section 233(1)(a) of the Communications and Multimedia Act 1998. Although the Act translates the term “jelik” as “offensive,” it does not provide a statutory definition of the word. This absence of precise statutory guidance renders the interpretation of the term “offensive” central to the determination of this element of the charge, thereby necessitating a careful and methodical consideration of its meaning. [22] To substantiate their argument, the prosecution had referred to the “Kamus Dewan Edisi Keempat,” which defines “jelik” using descriptors such as “buruk, hodoh, jahat dan tidak baik,” implying connotations of “bad, ugly, evil, and undesirable.” To supplement this interpretation, reliance was also placed on definitions derived from authoritative legal and linguistic sources. The Black’s Law Dictionary (11th Edition), for instance, interprets “offensive,” particularly in the context of language, as that which incites “displeasure, anger, or resentment.” Similarly, the Oxford English Dictionary defines “offensive” as something that may be “displeasing, annoying, or insulting.” These definitions collectively provide a framework for examining the content of the Facebook post in question, enabling a judicious assessment of whether the post meets the requisite threshold of offensiveness under the statute. [23] From these definitions, it may be inferred that a statement can be deemed offensive when it contains malicious language that is likely to cause displeasure or provoke a negative reaction in others. This underscores the inherent complexity in applying an objective standard to define offensiveness, particularly when subjective perceptions and evolving societal norms may vary across different contexts and communities. [24] In advancing their case, the prosecution contends that the second element is established through the testimony of SP2 and SP3. The impugned Facebook post addressed the effectiveness of the Covid-19 vaccine, a highly sensitive and pertinent issue in April 2021, when the Government was actively promoting vaccination efforts. The prosecution submitted that such a post would likely erode public confidence in the Ministry of Health, Malaysia, and undermine its credibility in managing the Covid-19 pandemic. [25] Upon consideration of the prosecution’s submissions and the evidence, I respectfully disagree with the prosecution’s contention for reasons that I will now elaborate. [26] The essence of the prosecution’s case rests upon a three-line excerpt from the impugned post, specifically paragraphs 8 and 9, which reads as follows: “Dengan vaksin yang mereka promote siang malam, yang sihat pun boleh jatuh sakit. Itupun tak dapat nak halang virus daripada bertapak dalam hidung mereka yang dah cucuk 2 dos. Korang rasa hidup korang bertambah baik dengan bergantung pada sijil tauliah diorg?” [27] A literal interpretation of these sentences does not disclose anything inherently offensive. Instead, the statements appear to represent a narrative conveying the accused’s perspective, expressed in a colloquial tone. Upon review, the statements articulate a truth regarding the limited efficacy of Covid-19 vaccines in preventing infection—a matter of general knowledge both at the material time and currently. [28] As a matter of fact, matters within the purview of general knowledge is capable of being judicially noticed by this Court. This principle was expounded in the Federal Court case of Pang Ah Chee v Chong Kwee Sang [1985] 1 MLJ 153, where “judicial notice” was defined by Raja Azlan Shah FCJ (as His Lordship then was) in Johnson Tan Han Seng v PP & Other Appeals [1977] 2 MLJ 66 as “the cognizance taken by the court itself of certain matters which are so notorious or clearly established that evidence of their existence is deemed unnecessary.” [29] A similar approach was further elucidated in Pembangunan Maha Murni Sdn. Bhd. v Jururus Ladang Sdn. Bhd. [1986] 2 MLJ 30, where Syed Agil Barakbah SCJ (as His Lordship then was) held that judicial notice applies to matters of common knowledge universally accepted without dispute. The court retains discretionary power to consult authoritative references, where necessary, to ensure the advancement of judicial knowledge. [30] Further, Sarkar on Evidence underscores that judicial notice encompasses “various facts which are familiar to any judicial tribunal by their universal notoriety or regular recurrence in the ordinary course of nature or business.” Judges are thus entitled to rely on their knowledge of general matters without requiring formal evidentiary proof. [31] The statutory framework for judicial notice is enshrined in sections 56 and 57 of the Evidence Act 1950, as reaffirmed in Tony Pua Kiam Wee v Dato' Sri Mohd Najib Bin Tun Hj Abdul Razak [2018] 4 MLJ 192 by Yaacob Md Sam JCA (as His Lordship then was). Section 56 absolves the need for proof where judicial notice is taken, while section 57 enumerates specific matters subject to judicial notice. These provisions collectively emphasize the practicality of judicial notice in cases where facts are already widely recognized and accepted. [32] Returning to the facts of this case, the Covid-19 pandemic and the development of the National Covid-19 Immunisation Programme are matters of significant public concern. The magnitude of the pandemic’s impact and related governmental measures fall squarely within the ambit of judicially noticeable facts. This was aptly articulated by Zaleha Yusof FCJ (as Her Ladyship then was) in Datuk Seri Anwar Ibrahim v Kerajaan Malaysia & Anor [2021] 6 MLJ 68, where it was observed that the court “cannot turn a blind eye” to the realities of the pandemic and its effects. [33] Based on these principles, this Court takes judicial notice of the surge in Covid-19 cases during mid-2021, notwithstanding the Government’s vaccination efforts initiated in early 2021. It is also a matter of public notoriety that vaccinations were not intended to confer absolute immunity but instead to mitigate severe outcome of the virus. [34] Against this backdrop, the first two sentences of the impugned post reflect a factual observation rather than an offensive statement. Assertions regarding the limitations of vaccine efficacy mirror the public discourse prevalent at the material time and cannot reasonably be deemed offensive. [35] The prosecution's argument that the impugned sentences erode public confidence in the Ministry of Health is, upon close examination, unsubstantiated. The evidence presented by the prosecution fails to demonstrate that the statements rise to the threshold of offensiveness contemplated under section 233(1)(a) of the Communications and Multimedia Act 1998. Accordingly, I find no sufficient basis to classify the challenged statements as offensive within the statutory framework of the charge. [36] The defence has drawn this Court's attention to various media releases pertaining to the Covid-19 vaccination campaign. It is indisputable that the Covid-19 pandemic and the corresponding vaccination developments were widely reported and entrenched in public discussion during the material period in 2021. Such information became omnipresent to the extent that the public was compelled to remain informed through regular updates. By late February 2021, the Malaysian government initiated the National Covid-19 Immunisation Programme. These matters, by their very nature, constitute general knowledge. [37] Consequently, this Court takes judicial notice of the surge in Covid-19 cases throughout mid-2021, a phenomenon that persisted despite the rollout of vaccination efforts earlier that year. It is a well-recognized fact, widely reported in the public domain, that the vaccines provided partial immunity. The increase in cases reported in April 2021, approximately two months after the vaccination campaign commenced, demonstrates the ongoing challenges in curbing the spread of the virus despite widespread immunisation efforts. [38] Therefore, the first two sentences from the accused’s Facebook post, as cited by the prosecution’s witnesses, reflect observations consistent with publicly known facts. These statements align with the prevailing public understanding of the partial efficacy of vaccines during the material time. Such statements, when considered contextually, do not possess the malice or derogatory intent required to be deemed offensive under the statute. Accordingly, the prosecution’s assertion that these sentences undermine public confidence in the Ministry of Health bears no evidentiary merit. The statements, in their essence, cannot reasonably be interpreted as offensive towards any official or entity within the Ministry of Health, Malaysia. [39] It is pertinent to address the third sentence of the impugned Facebook post, which appears to question the effectiveness of the Covid-19 vaccine in improving overall well-being. Government policies, particularly those impacting public health, are integral to the lives of citizens and are naturally subject to public discourse. Malaysia, as a nation that upholds constitutional supremacy, guarantees under Article 10(1)(a) of the Federal Constitution the fundamental right to freedom of speech. This right is central to democratic practices and permits the exchange of ideas, including critical evaluation of governmental actions. [40] The Court of Appeal in Utusan Melayu (M) Bhd v Dato Seri Diraja Hj Adnan bin Hj Yaakob [2016] 5 MLJ 56 affirmed the public's liberty to engage in discussions concerning governmental actions and policies. The Court underscored the importance of constitutional safeguards for such freedoms, stating: “[19] … it is one of the fundamental principles that, in the exercise of the right to such freedom within the ambit of the Federal Constitution and other relevant laws, the public should have the right to discuss their government and public officials conducting public affairs of the government without fear of being called to account in the court for their expressions of opinion (City of Chicago v The Tribune Company). It does indeed go without saying that so far as the freedom of press is concerned, it flows from the right to freedom of speech and expression as guaranteed by art 10(1)(a) of the Federal Constitution, the exercise of which shall at all times be protected and respected but subject to and no more than the permissible restrictions as may be imposed by federal law with clear and unequivocal language pursuant to art 10(2)(a) thereof.” [emphasis added] [41] It follows, therefore, that any commentary on the government's policies, including expressions of dissatisfaction or skepticism, must be analyzed against the parameters established by Article 10(2)(a). This provision prescribes reasonable restrictions on freedom of speech in specific circumstances, such as public order or national security. Unless a statement transgresses these constitutionally permissible limits, no individual should be held accountable for questioning government policies or expressing personal frustration regarding public issues. [42] The third sentence of the accused’s Facebook post, when viewed objectively, communicates an expression of unease or skepticism about the effectiveness of the Covid-19 vaccine and reflects personal dissatisfaction with the prevailing state of Covid- 19 management. It bears no offensive language or malicious intent capable of undermining the legal standards set forth in Section 233 of the Communications and Multimedia Act 1998. Thus, the content of the third sentence does not rise to the requisite level of offensiveness contemplated under the law. This Court, therefore, finds no merit in the prosecution’s reliance on this aspect of the accused’s post to substantiate the charge. [43] Aside from the 3-line passage from paragraph 8 to 9, I now turn to other remarks made by the accused. Upon construing the 1st to 7th paragraphs of the Facebook post, they reveal no connection to the current contention repeatedly raised by the prosecution witnesses, namely that the primary reason they found the Facebook post offensive was because it undermined the government’s efforts to combat the Covid-19 pandemic in our country. [44] Moving on to the 10th to 15th paragraphs of the Facebook post, though they concern the on-going Covid-19 situation, these remarks are merely the accused’s opinion on the vaccination efforts and the matters of public governance in tackling the Covid-19 Pandamic. Furthermore, the attachment of a cut out from the Malaysiakini news article together with a picture of a man who is believed to be the Minister of Health at the material time also did not serve as a personal attack or a content intended to make any person feel undesirable, displeased, angry, resentful, annoyed or insulted. [45] To assess whether the impugned post fulfills the threshold of offensiveness under section 233(1)(a) of the Communications and Multimedia Act 1998, it is essential to consider relevant judicial precedents. The High Court case of Teoh Kah Yong v PP [2022] MLJU 3184 held that the provision seeks to criminalize the misuse of communication platforms for distributing content that is obscene, indecent, false, menacing, or offensive, with the intent to annoy, abuse, threaten, or harass another person. This interpretation emphasises the provision's primary goal of maintaining public and moral order. Importantly, the provision outlines specific categories of offensive conduct, indicating the legislature's intention to limit its application to these defined acts. This specificity prevents broad or arbitrary interpretations that could lead to the misuse of prosecutorial powers. As a result, any alleged offensive conduct must undergo careful judicial examination to determine whether it truly aligns with the particular categories specified in section 233. [46] Another pertinent case would be Jufazli bin Shi Ahmad v Pendakwa Raya [2022] 8 MLJ 684 in which the High Court expounded on the legislative intent behind section 233, emphasizing its purpose as addressing the “improper use of network services or facilities”, which is to prevent the dissemination of explicitly obscene or offensive content, without unjustifiably applying a generalised standard of morality. [47] The High Court further illustrated that an excessively wide interpretation of the provision could lead to absurd results, such as labelling the popular animated series “The Simpsons” offensive simply due to the superficial traits of its characters. Such an outcome would contradict the legislative intent of section 233, which underscores the need for a balanced approach when evaluating potentially offensive content. [48] Additionally, the High Court emphasized the importance of the recipient's perspective when determining whether the material falls under the scope of section 233(1)(a). To satisfy the provision, the material must be evaluated based on the point of view of the individual to whom the message is transmitted. This interpretation highlights that the material must be directed towards a specific individual, rather than a general audience, to qualify under section 233(1)(a). [49] This judicial interpretation of section 233 safeguards against arbitrary or overly broad application of the law, ensuring that only material that clearly meets the specific criteria set out in the provision is subject to condemnation, thus aligning with the fundamental legislative intent. [50] To prove that the Facebook post is offensive, the prosecution had heavily relied on the testimony of SP2 and SP3 to establish its case against the accused. Though SP2 and SP3 testified that the 3-line passage from paragraph 8 to 9 of the Facebook post is offensive and seemed to annoy its reader, the rest of their testimonies did not in any way support such contention. [51] What they have eventually testified was that the Facebook post may create hesitancy among the public about receiving the Covid-19 vaccination and undermine the government’s effort to curb the widespread of Covid-19 disease, thus causing the citizens to negatively perceive the credibility of the Ministry of Health. The testimony of SP2 further undermines the prosecution's case. During cross-examination, SP2 admitted that her police report seemed to indicate that the Facebook post would cause apprehensiveness rather than being offensive. [52] This acknowledgment is especially detrimental to the prosecution's arguments, as it exposes a crucial lack of objective and reliable evidence to back their claims. [53] Thus, I am of the considered view that the subjective interpretation of the Facebook post by the prosecution’s witnesses is entirely inadequate to prove that the post is offensive. The prosecution’s reliance on unsubstantiated opinion is fundamentally flawed as it seems to be an attempt to mislead the court into classifying the post as offensive without presenting credible, objective evidence to substantiate such a serious claim. [54] I further hold that the prosecution had failed to prove exactly which part of the Facebook post is objectively offensive in nature according to legal standards as the evidence adduced by the prosecution falls significantly short of discharging such burden. [55] As Malaysia progresses towards being a more dynamic nation, safeguarding freedom of speech is essential to nurture a vibrant democracy. The case of Utusan Melayu (supra) underscores the right to express opinions, including criticism of government actions, as a core principle of constitutional law. The right allows citizens to hold their government accountable without fear of unjust legal repercussions. By safeguarding this right, it fosters a more informed and engaged citizenry while maintaining transparency and preventing abuses of power. [56] The Facebook post made by the accused, in this case, is merely an opinion and is clearly within the scope of constitutionally protected speech. It does not constitute an offence under the relevant laws and should not be regarded as legally punishable. Therefore, the prosecution’s case seems to lack both evidentiary and substantive legal basis to succeed. [57] Turning to the third element, the relevant particulars of the charge read as follow: “dengan niat untuk menyakitkan hati orang lain, yang telah dibaca pada 05 April 2021 jam lebih kurang 11:30 pagi di Kementerian Kesihatan Malaysia, Putrajaya.” [58] The Communications and Multimedia Act 1998 translates the phrase “dengan niat untuk menyakitkan hati orang lain” as “with intent to annoy another person”. Nonetheless, the phrase was not defined by the Act. [59] A pertinent case that elucidates the phrase “with intent to annoy” would be the Singapore High Court case of Public Prosecutor v Seah Soon Keong [1999] 3 SLR 442 where Yong Pung How CJ when dealing with the charge of criminal trespass held as follow at p 444: “In PP v Ker Ban Siong [1992] 2 SLR 938 I held that the requisite intent to annoy under s 441 of the Penal Code (Cap 224) must usually be inferred from the surrounding circumstances of the alleged offence and need not be the accused’s primary or proximate intent. I would reiterate that now, because it would seem that there continues to be a tendency in some quarters to insist dogmatically that even though there exist circumstances from which the requisite intent can be satisfactorily inferred, nevertheless the prosecution must adduce yet more evidence to prove such intent. Proving criminal intent can never be an easy thing, since people who harbour criminal intentions are hardly likely to publicize these intentions. The court will not lightly attribute criminal intent to an accused person, but when such intent may clearly be inferred from the surrounding circumstances of the alleged offence, there is no reason why the prosecution should be required to produce further evidence. Take, for example, an accused who was banned from a club by its management and who persisted in entering the club in knowing violation of the ban. The circumstances of his entry are such that one can infer an intent to annoy the management who banned him. It is difficult to imagine what further evidence the prosecution might be called on to produce in such a situation.” [Emphasis added] [60] Moving on, Oxford English Dictionary defined the term “annoy” as causing an individual —whether a person or, as noted in later usages, even an animal—to become irritated, exasperated, or mildly angry. This definition introduces an element of subjectivity, as it largely depends on how the recipient interprets the action or communication in question. Consequently, it is the responsibility of the prosecution to demonstrate, with credible evidence, that the accused’s Facebook post was intended to provoke a specific reaction, such as the one outlined in the legal framework, in the mind of the recipient. [61] To discharge the burden of proving the third element that the accused intended to annoy anyone, the prosecution had relied on SP2’s testimonies. However, during cross-examination, SP2 was unable to affirm that the accused’s Facebook post had annoyed anyone. [62] Judging from the testimony and police report by SP2, I infer that SP2 personally was not irritated by the accused’s Facebook post. It is evident from the police report that the SP2’s primary concern was that the content of the Facebook post was untrue, would create hesitancy among the public and would undermine the government’s effort to curb the Covid-19 pandemic in our country. Nowhere was it mention in the police report that SP2 was annoyed by the accused’s Facebook post. The emphasis on SP2’s evidence has clearly misaligned with the requirement to establish the intent to annoy by the accused, as necessitated by the provision at hand. [63] Furthermore, the evidence presented by SP3, had weaken the prosecution’s case. A review of SP6’s testimony revealed no findings indicating that the accused uploaded the Facebook post with an intent to annoy any particular individual. Throughout the examination-in-chief and cross-examination, SP6 did not provide any concrete evidence to substantiate such intent. Instead, what SP6 had testified was that the Facebook post would cause public hesitation and fear regarding the Covid-19 vaccination, thus undermining the government’s effort to combat the Covid-19 pandemic. This omission further damages the prosecution’s argument, as it fails to establish an evidentiary link between the accused’s actions and the necessary intent to annoy, as outlined under section 233(1)(a). [64] SP3’s testimony further suggested that no one was particularly annoyed by the accused’s Facebook post. This is because SP3 had testified that the Covid-19 vaccination had received significant support during April and May 2021. I also took judicial notice that more than 50% of the Malaysians had been inoculated with the second dose of the Covid-19 vaccine as of now. This leads to the finding that the accused’s Facebook post had no significant impact on anyone, let alone causing annoyance due to the remarks being made. [65] The prosecution’s submissions similarly fail to address this fundamental issue. No clear argument has been made as to how the accused’s post could reasonably be interpreted as targeting or affecting a specific individual in a way that satisfies the intent requirement under the law. [66] Section 233(1)(a) of the Communications and Multimedia Act 1998 should not be wielded as a sweeping tool to suppress dissenting opinions, dissatisfaction, or criticism. While the provision aims to regulate harmful communications, its application must not encroach upon the fundamental right to free expression, which is vital for a thriving democracy. Using this section to stifle contrary views or silence individuals creates a chilling effect that undermines the democratic space, fostering a climate of fear where Malaysians are hesitant to speak out. Such a restrictive approach stifles public discourse, discourages constructive debate, and weakens the very principles of transparency and accountability upon which democracy stands. The right to express differing opinions and hold the government accountable is a cornerstone of any democratic society, and this should be protected, not suppressed under the guise of regulation. [67] Upon conducting a maximum evaluation on the evidence adduced, I am fortified to hold that the prosecution has failed to establish a prima facie case against the accused under section 233 (1)(a) of the Act in light of section 173(h)(ii) of the CPC as the last two elements of the offence were not satisfied. I thus acquitted and discharged the accused in accordance with section 173(f) of the CPC. Dated this 12th day of February 2025 tt EDWIN PARAMJOTHY MICHAEL MUNIANDY SESSIONS COURT JUDGE KUALA LUMPUR Deputy Public Prosecutor: Puan Nurilya Ellyna binti Nor Azmal Counsel for the Accused: Puan Asiah binti Abd Jalil