Justice Lee Swee Seng said the words violated Article 10(2)(a) of the Federal Constitution, read together with Article 8.

He also said that a charge of offending and annoying a third party could not be construed as going against public order.

“We find that the impugned words of ‘offensive’ and ‘annoy’ are not a permissible restriction to the freedom of expression under our Federal Constitution.

“We therefore strike down that particular provision as constituting an offence (against the constitution),” he said in partly allowing the appeal by activist Heidy Quah to nullify the previous version of Section 233.

Also on the panel hearing the appeal were Justices Hashim Hamzah and Azman Abdullah.

The bench made no order as to costs as the issue at hand was a constitutional matter.

Lee, who is now a Federal Court judge, said today’s decision would have a prospective effect, meaning that parties in ongoing criminal proceedings under the old law could leave it to the trial judge to decide.

The government passed an amendment to the CMA last year, adding the words “grossly offensive” in constituting an offence. The amendment came into effect this February.

Senior federal counsel Liew Horng Bin appeared for the government, while lawyers Malik Imtiaz Sarwar, A Surendra and New Sin Yew represented Quah.

Counsel Lim Wei Jiet held a watching brief for the Clooney Foundation for Justice and Suaram.

The bench also directed Liew to file a formal application to stay the decision pending the government’s filing of an appeal to the Federal Court.

Lee said that in a society like Malaysia’s, citizens are supposed to “give space to one another” by appreciating and accommodating their views, thoughts and ideas on a range of topics.

The judge said some might use loud and lambastic language to express their views, while others might take a more scholarly and subdued tone in agreeing to disagree.

“The virtual community has a way of restoring equilibrium and even equanimity when the line has been crossed.

“To create more offences in the virtual space would be a retrogressive step bordering on needless censorship just because some people’s ideas may not be so palatable,” he said.

He also said that Section 233 of the CMA provided no standards as to what amounted to offensive or what would amount to an intent to annoy.

“When all types of speech could potentially be offensive if a single person finds it so, then freedom of speech has become illusory and enforcement becomes arbitrary.”

Lee added that free speech would be deterred as the offence under Section 233 carried a fine of up to RM50,000, a maximum one-year jail term, or both, upon conviction.

He said that would be disproportionate to the legislative aim of the CMA.

“To silence speech that is true just because some may find it offensive and annoying would be akin to using a sledgehammer to kill a fly.”

Section 233(1)(a) of the CMA had made it an offence for a person to make, create, solicit or initiate the transmission of any online comment which was “obscene, indecent, false, menacing or offensive” with the “intent to annoy, abuse, threaten or harass another person”.

The civil action by Quah, the founder of Refuge for Refugees, challenged the validity of the words “offensive” and “annoy” in the provision.

In July 2021, Quah was charged in the Kuala Lumpur sessions court with posting offensive online comments on Facebook highlighting the alleged mistreatment of refugees at immigration detention centres.

In April 2022, the sessions court granted her a discharge not amounting to an acquittal from 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.

Her suit was, however, dismissed by the High Court.