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