By Alyaa Alhadjri | Malaysiakini

The Sessions Court in Kuala Lumpur has ordered a discharge not amounting to an acquittal (DNAA) for activist Heidy Quah on the basis that the charge against her was defective.

Her lawyer New Sin Yew told Malaysiakini that judge Edwin Paramjothy found that the charge was not in compliance with sections 152 to 154 of the Criminal Procedure Code which stipulates that the form of charge, particulars as to time, place and person and manner of committing offence must be stated.

Refuge for Refugees founder Quah (above, left) had been charged under section 233 of the Communications and Multimedia Act that criminalises offensive online comments, concerning a Facebook post in 2020 on alleged mistreatment of refugees at immigration detention centres.

“The judge found that the charge failed to adhere to the strict language of S233 CMA and that the charge lacks the necessary legal ingredients.

“Thus the accused is left in the dark guessing as to the charge made against her.

“Her rights under Article 5 of the Federal Constitution have been infringed by the non-compliance of the provisions in the CPC.

“And that to allow the trial to go on would be an abuse of process, and would diminish or render the accused’s constitutional right to be ineffective or illusory,” explained New.

Claimed trial

In Aug 2021, she had claimed trial before the Sessions Court in Kuala Lumpur on a charge of improper use of network facilities to upload an offensive statement at around 5.30am on June 5, 2020

She then filed a civil lawsuit in the High Court in Shah Alam on Aug 30, 2021, through law firm AmerBON, under which she sought a court order to rule the words “offensive” and “annoy” in section 233 invalidated for being unconstitutional.

Under section 233(1)(a), a person who makes, creates or solicits, and initiates the transmission of any online comment which is “obscene, indecent, false, menacing or offensive” with “intent to annoy, abuse, threaten or harass another person” commits an offence.

In the court filing, Quah argued that the section 233 provisions — namely the words “offensive” and “annoy” — which make it an offence to knowingly make any online comments which are offensive and with the intent to annoy another person, are restrictions on free speech that extend beyond constitutional limits.

Under the Federal Constitution, Article 10(1) guarantees all Malaysian citizens the right to freedom of speech and expression, while Article 10(2)(a) allows Parliament to impose restrictions that it considers necessary or expedient in the interest of national security, public order or morality, to protect parliamentary privileges, or to provide against contempt of court, defamation or incitement to any offence.