The prosecution must prove mens rea beyond reasonable doubt for conviction; absence of intent to annoy results in acquittal, supported by the accused's legal insanity defense.

Muniandy Kannayappan J:

[1] The appeal in the present case is by the prosecution against the order of acquittal and discharge of the accused by the sessions court judge (SCJ).

[2] The accused was charged for an offence of posting on his tweeter application an offensive comment directed at individuals which had the effect of annoyance and insult. The content of the charge is not reproduced, as the comments made are as stated by the SCJ "dipadam kerana perkataan lucah dan menghina Raja dan agama".

However, it could be found in the record of appeal. It is an offence pursuant to s 233(1)(a) of the Multimedia and Communication Act 1998 (Act 588). The provision (as applicable in the official text language) renders the following:

(1) Seseorang yang:

(a) Dengan menggunakan perkhidmatan aplikasi secara sedar:

(i) Membuat dan

(ii) Memulakan penghantaran, komunikasi yang jelik sifatnya dengan niat untuk menyakitkan hati orang lain;

The ingredients of the offence which has to be proved by the prosecution beyond reasonable doubt are:

1) The accused had used his Twitter application to upload a communication;

2) The said communication is offensive;

3) The communication was uploaded with an intent to injure the feelings of others.

The pivotal issue, therefore is not whether the communication made by the accused has caused annoyance but whether he intended to annoy the feeling of others. (See Ong Eng Guan v. Public Prosecutor; [1956] 1 MLJ 44). But of course, evidence as to intention of the accused by posting such comments on his twitter application need not be direct but could be contained by way of inferential evidence pointing to the fact that the accused was not only aware of the communication uplifted on to his twitter application, but that by doing so, he at the material time had the intention to annoy others. The SCJ had correctly in law directed her mind to this salient fact in issue, which are material ingredients to be proven by the prosecution vide credible evidence.

[3] At the outset, in the present case the accused had pleaded guilty, but he qualified it by saying that he was unwell and mentally unstable when he posted the comments. As such, and rightly the SCJ had ordered for the accused to be placed under observation at the psychiatric hospital for diagnosis pursuant to s 342(3) of the Criminal Procedure Code ( CPC /Act 593). Subsequent to that, after observation and treatment afforded by SP3, he had issued his report P4B, pursuant to s 343(1) of the certifying that the accused person is of sound mind and capable of making his defence, and the SCJ shall proceed with the trial of the case of the accused.

[4] The trial then progressed and the case of prosecution had commenced and completed. The accused was without legal representation and after having heard the testimony of all the prosecution witnesses who had testified against him, had chosen not to cross-examine them. But in his submission at the close of the case of prosecution, he had informed the court without any reservation, that at the material time when he posted the alleged communication on to his twitter application, he was mentally unstable and not aware at all that what he did was contrary to the law. In law, it is not an afterthought explanation or a recent invention by him to exonerate himself from criminal liability but a defence available to him pursuant to s 84 of the Penal Code ( PC /Act 574) which renders legal insanity as a total defence for criminal liability in the following terms:

84. Act of a person of unsound mind

Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

I say it is a legitimate defence available to him, and not plucked from thin air, but also supported by the evaluation on him made by SP3 of his mental condition at the material time when the posting was made on the twitter appl