The intent of participants in a mass march may co-exist with the intent to engage in a street protest, which must be evaluated based on credible evidence of conduct.

[1] The respondents were charged in the Sessions Court with the offence of participating in a "street protest". It is an offence under s 4(2)(c) of the Peaceful Assembly Act 2012 (the PAA 2012) and it is punishable under s 4(3) of the same Act. The prosecution called a total of seven witnesses. At the conclusion of the case for the prosecution, the learned Sessions Court Judge acquitted the respondents without calling for their defence. The prosecution has appealed this decision before this Court.

[2] For ease of reference, before proceeding further, I shall set out the charge below:

"Bahawa kamu bersama beberapa orang yang masih bebas, pada 29 Ogos 2015 di antara lebih kurang jam 2.00 petang hingga 3.00 petang bermula dari hadapan Hotel Hilton Kuching, Jalan Borneo melalui Jalan Tunku Abdul Rahman, Jalan Tabuan, Jalam Ban Hock sehingga ke padang Song Kheng Hai, di dalam Bandaraya Kuching, di dalam Negeri Sarawak, telah menyertai suatu protes jalanan bagi maksud memajukan suatu tujuan berkaitan Perhimpunan Bersih 4 anjuran gabungan Pilihanraya Bersih dan Adil (BERSIH) dan oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah s 4(2) (c) Akta Perhimpunan Aman 2012 yang boleh dihukum di bawah s 4(3) Akta yang sama"

Background Facts

[3] The PAA 2012 legalizes a peaceful assembly of citizens in public and makes various provision to facilitate it. However, it criminalizes a "street protest". On 29th August 2015, a non-governmental organization called the Coalition for Clean and Fair Elections was allowed to hold an assembly at the Padang Song Kheng Hai in Kuching. The said NGO is also known as BERSIH.

[4] The assembly at Padang Song Kheng Hai proceeded as planned. The police did not object to the assembly at Padang Song Kheng Hai. No one was charged with any offence of participating in the assembly at the said venue. However, the organizers of the assembly had asked the public to gather at four points around the city by 2 p.m. before proceeding to the venue at Padang Song Kheng Hai. One of the four points was the Hilton Hotel.

[5] The case for the prosecution was that a large crowd gathered at the Hilton Hotel on the day in question from 1 p.m. onwards. The respondents were among them. The 1st respondent is the Member of Parliament for Kuching whereas the 2nd respondent is the member of Parliament for Stampin. The 1st respondent allegedly told PW5 (the Kuching OCPD) outside the Hilton Hotel that he intended to wait for more participants before making his way to Padang Song Kheng Hai.

[6] The police advised the respondents and others to move to Padang Song Kheng Hai. When the number of people had increased, all those gathered outside Hilton Hotel walked to Padang Song Kheng Hai. The respondents were in this group. The police were stationed all along the route to the Padang Song Kheng Hai. They took photographs and video clips. The police witnesses testified that at times the group had encroached on to the road instead of keeping themselves on the sidewalk. Some in the group were seen displaying BERSIH banners prominently. Some were even heard shouting political slogans. They reached Padang Song Kheng Hai around 3 p.m.

[7] The case of the prosecution that was unfolded by the police witnesses on the ground is that the movement of the people from Hilton Hotel to Padang Song Kheng Hai constituted a "street protest" within the meaning of the PAA 2012 notwithstanding the fact that they wanted to participate in the approved BERSIH assembly at the latter venue.

Offence Of Street Protest Under PAA 2012

[8] Before proceeding to discuss the decision of the Sessions Court and the grounds of appeal, for ease of reference, I shall set out the offence creating provision in question and the related definitions under the PAA 2012. Parliament has prohibited a "str