A three-member panel chaired by Justice Lee Swee Seng said it was reserving judgment in the case after hearing submissions from senior federal counsel Liew Horng Bin, appearing for the government, and Quah’s lawyer, Malik Imtiaz Sarwar.
Also on the panel hearing the appeal were Justices Hashim Hamzah and Azman Abdullah.
Liew contended that speech containing expletives, profanity, crude references, hate speech or incitements to violence are not expressions protected under Article 10(1)(a) of the Federal Constitution.
He said free speech should serve to disseminate truth, uphold the dignity of others, and facilitate informed decision-making.
Liew said Parliament was empowered by law to impose a permissible restriction on grounds of public order or morality as provided under Article 10(2)(a).
He argued Section 233(1)(a) of the CMA does not violate the constitution as it imposes a reasonable restriction.
Section 233(1)(a) of the CMA makes it an offence for a person to make, create, solicit or initiate the transmission of any online comment which is “obscene, indecent, false, menacing or offensive” with “intent to annoy, abuse, threaten or harass another person”.
“’Annoy’ is taken to mean annoyance that would generally and reasonably affect an ordinary person,” Liew said when urging the bench to dismiss Quah’s appeal against a ruling of the Shah Alam High Court handed down in 2023.
The civil action by Quah, the founder of Refuge for Refugees, targeted the validity of the words “offensive” and “annoy” in the provision.
In July 2021, she was charged in the Kuala Lumpur sessions court with posting offensive online comments on Facebook which highlighted the alleged mistreatment of refugees at immigration detention centres.
In April 2022, the sessions court here granted her a discharge not amounting to an acquittal (DNAA) over a charge of improper use of network facilities.
This was after the trial judge accepted a preliminary objection that the charge was defective as it did not comply with the requirements of Section 233 of the CMA.
She then filed a civil action for a declaration that the words “offensive” and “annoy” in the provision were invalid and contravened two fundamental human rights safeguarded by the constitution.
These were the right to equality before the law and freedom of speech, respectively protected under Articles 8 and 10 of the constitution.
Malik submitted that Quah had locus standi to bring the constitutional challenge despite being given the DNAA.
“The appellant’s constitutional right was affected when she was charged. There is a possibility that she could be charged again,” he said.
He said the words “annoy” and “offensive” are unconstitutional as they are not a permissible restriction under public order, as prescribed by the constitution.
Malik also argued that the penalty of imprisonment and the hefty fine which may be imposed for offensive speech was too harsh, especially if it has not caused actual harm to another person.