JE13/2021 434 Peguam Negara Malaysia v. MKINI Dotcom Sdn Bhd & Anor [2021] 2 MLRA PEGUAM NEGARA MALAYSIA v. MKINI DOTCOM SDN BHD & ANOR Federal Court, Putrajaya Rohana Yusuf PCA, Azahar Mohamed CJM, Abang Iskandar Abang Hashim CJSS, Mohd Zawawi Salleh, Nallini Pathmanathan, Vernon Ong Lam Kiat, Abdul Rahman Sebli FCJJ [Civil Application No: 08(L)-4-06-2020(W)] 19 February 2021 Civil Procedure: Contempt of court — Scandalising the court — Committal proceedings pursuant to O 52 r 3(1) Rules of Court 2012 (“ROC”) — Application to set aside leave to commence committal proceedings against respondents for publishing five impugned comments originating from third-party commenters which were contemptuous of Judiciary — Whether non-compliance with O 52 r 2(b) ROC fatal — Whether application to set aside ought to be allowed Evidence: Presumption of Publication — s 114A Evidence Act (“EA”) — Whether respondents facilitated publication of impugned comments and presumed to have published the same — Whether respondents had rebutted presumption of publication under s 114A EA — Whether the applicant had made out prima facie case for contempt of court against both respondents Civil Procedure: Contempt of court — Intention to publish — Liability of online intermediary — Whether respondents were liable in contempt for third-party comments — Whether respondents possessed requisite “intention to publish” for purposes of scandalising court contempt Civil Procedure: Contempt of court — Knowledge — Whether ‘publication’ required element of knowledge to be fulfilled — Whether 1st respondent as host of internet portal news knowingly published said third-party comments — Criterion to establish liability for acts of online intermediary — Whether actual knowledge or constructive knowledge The Attorney General of Malaysia (“AG”) initiated a contempt proceeding against an online news portal, Mkini Dotcom Sdn Bhd (“Malaysiakini”) as the 1st respondent and its Editor-in-Chief, Gan Diong Keng (“Steven Gan”) as the 2nd respondent. It all began when Malaysiakini published an article on 9 June 2020 pertaining to the acquittal of the former Sabah Chief Minister Musa Aman of 46 charges of corruption and money laundering. On the same day, the Office of the Chief Registrar issued a press release by the Chief Justice for all Courts to be operational from 1 July 2020, in line with the announcement that the country was moving into the recovery phase of the Movement Control Order. Malaysiakini republished from Bernama that press release as an article entitled “CJ orders all courts to be fully operational from 1 July”. This 26 March 2021

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