The court held that circumstantial evidence can establish culpability in online offenses, even in the absence of direct evidence, reinforcing the importance of inference regarding intent from the nature of the communication.

[1] This is an appeal by the prosecution against the discharge and acquittal of the accused at the end of the case for the prosecution.

Brief Facts

[2] The accused was charged with committing an offence under >s 233 of the Communications and Multimedia Act 1998 . The charge read as follows:

Bahawa kamu pada 13 Februari 2009 jam lebih kurang 6.33 petang di alamat Blok A, Lot 4 kedai SEDCO 89300 Kundasang di dalam daerah Ranau dalam Negeri Sabah telah menggunakan perkhidmatan aplikasi iaitu Internet Protokol 60..52.46.189 secara sedar membuat dan memulakan penghantaran komen yang jelik sifatnya iaitu "Sultan Perak Sudah gilaaaaaaa!!!!!!" di http://books.dreambook.com/duli/duli.html yang mempunyai pautan laman web pejabat Duli Yang Maha Mulia Sultan Perak iaitu http://sultan.perak.gov.my dengan niat untuk menyakitkan hati orang lain. Oleh itu kamu telah melakukan satu kesalahan di bawah subseksyen 233(1)(a) Akta komunikasi dan Multimedia 1998 [Akta 588] dan boleh dihukum di bawah subseksyen 233(3) Akta yang sama.

(Hukuman: Boleh didenda tidak melebihi lima puluh ribu ringgit atau dipenjarakan selama tempoh tidak melebihi satu tahun atau kedua-dua).

[3] The prosecution called 19 witness to established its case. The essence of the charge is that the accused had posted the remark "Sultan Perak Sudah gilaaaaaa!!!!" on the online visitor book of the homepage of the HRH Sultan of Perak. The online visitor book was hosted on the website address is http://books.dreambook.com/duli/duli.html and it was linked to the homepage of HRH Sultan of Perak which is hosted at http://sultan.perak.gov.my.The case was investigated by the Communications and Multimedia Commission. The investigation commenced after a report was lodged by PW1, who is an Information Officer attached to the Perak State Secretary's office. She testified that it is her duty to check all postings made on the online visitor book of the homepage of the HRH Sultan of Perak's website. She discovered that the offensive posting in question was time stamped 6.33pm and dated 13 February 2009. She found that the posting bore the Internet Protocol (IP) address 60.52.46.189. She said that the IP address is the unique address assigned to anyone using the internet by the internet service provider for a particular session on the internet. The other essential witnesses were from Telekom Malaysia Berhad. They testified that the Internet Protocol (IP) address from which the comment in question was posted belonged to the accused person. They also detected the Media Access Control(MAC) address of the computer that was used for the internet session in question when the offensive remark was posted. MAC address is the unique address that is given to a hardware device by the manufacturer. This address is used to interact with network devices. The accused runs a handphone shop in Ranau. The computer was recovered by the investigating officer from the shop. The computer was sent for forensic analysis to Cybersecurity Malaysia. The forensic expert recovered the MAC address from the said computer. The said MAC address matched the MAC address that was captured by the Telekom Malaysia Berhad servers during the internet session in question when the offensive remark was posted on the online visitor book of the homepage of HRH Sultan of Perak. The forensic expert said that the offensive words "Sultan Perak" and "gilaaaa!" could not be found in one of the two hard disks of the computer. The other hard disk had suffered mechanical failure and could be not powered up. However, he said that this is possible because it was not stored in the browser "cache". Nonetheless he said that the MAC address of the computer could be recovered.

[4] Based on the circumstantial evidence that the computer with the MAC address that was used to make the posting in question was found in