JUDGMENT
Introduction
[1] This is an appeal by the Government of Malaysia ('the Appellant') against the decision of the Court of Appeal, which held that the words 'offensive' and 'annoy' ('the impugned words') within s 233(1)(a) of the Communications and Multimedia Act 1998 ('CMA') are unconstitutional and struck them down.
[2] Section 233(1)(a) CMA, as it was then worded, read as follows:
"233. Improper use of network facilities or network service, etc.
(1) A person who-
(a) by means of any network facilities or network service or applications service knowingly-
(i) makes, creates or solicits; and
(ii) 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."
[Emphasis Added]
[3] The effect of contravening the provision includes a penal consequence.
[4] The Respondent in this appeal, Heidy Quah, was charged under s 233(1)(a) CMA in July 2021 in the Sessions Court at Kuala Lumpur. A month later, in August 2021, during the pendency of the proceedings in the Sessions Court, the Respondent initiated a separate originating summons in the High Court, seeking an order that the impugned words in s 233(1)(a) CMA be struck out under art 4(1) of the Federal Constitution ('FC'), as those words were null and void for inconsistency with the FC.
[5] This issue of unconstitutionality, warranting the impugned words being struck down was not raised in the Sessions Court, although such an avenue was open to the Respondent (see: Ah Thian v. Government of Malaysia [1976] 1 MLRA 410; [1976] 2 MLJ 112). It begs the question why the originating summons was initiated separately in the High Court under art 4(1) FC when the issue could have been dealt with in the course of the proceedings in the Sessions Court. A further application was also made in the High Court to refer the same issue to the Federal Court for interpretation under s 84 of the Courts of Judicature Act 1964 ('CJA 1964').