[13] Starting his submission, learned counsel for the respondent contended that the validity of Act 15
was not in issue before the Court of Appeal, in so far as the criminal case was concerned. Any
comment by the Court of Appeal as to the constitutionality of Act 15 as a whole was entirely obiter
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
dicta. Learned counsel referred to section 3(3) of the Sedition Act which provides that:
“(3) For the purpose of proving the commission of any offence against this Act the intention of
the person charged at the time he did or attempted to do or made any preparation to do or
conspired with any person to do any act or uttered any seditious words or printed, published,
sold, offered for sale, distributed, reproduced or imported any publication or did any other thing
shall be deemed to be Irrelevant if in fact the act had, or would, if done, have had, or the words,
publication or thing had a seditious tendency.”
Learned counsel then submitted that provision was never the subject of any argument in Shuhaimi I,
or under consideration by the Court.
[14] Learned counsel next submitted that the doctrine of constructive res judicata had no application
to a challenge upon the constitutionality of a statute. In support of his argument he referred to the
judgment of the Indian Supreme Court in Nand Kishore v State of Punjab [1995] 6 SCC 614.
[15] On the requirement for res judicata, learned counsel submitted that to constitute a res judicata,
the earlier judgment must “necessarily and with precision” determine the point in issue. In support, he
referred to the following passage in the judgment of Chang Min Tat, FJ in Tong Lee Hwa & Anor. v
Lee Yoke San [1979] 1 MLJ 24:
“At the hearing of the appeal, it was put to counsel for the appellants that to constitute a res
judicata, the earlier judgment must, in terms of the Privy Council decision in Kok Hoong v.
Leong Cheong Kweng Mines Ltd. Kok Hoong v. Leong Cheong Kweng Mines Ltd. [1964] A.C.
993; [1964] M.L.J. 49, “necessarily and with precision” determine the point in issue, and he was
asked to indicate to the court how the earlier judgment did necessarily and with precision
determine the liability of the appellants to pay the respondent for work done for them at their
request. He did not do so. We do not, with respect, see how he could succeed.”
[16] Referring to paragraph 3 in the Court of Appeal’s judgment in Shuhaimi I, learned counsel
submitted that what was directly challenged was section 4 of the Sedition Act. The constitutionality
of section 3(3) of the Sedition Act was not challenged. He contended that the Court of Appeal in
Shuhaimi I did not “necessarily and with precision” determine the issue on the constitutionality of
section 3(3) of the Sedition Act. He pointed out that in Shuhaimi I, the Court of Appeal declared
section 4(1) of (c) of the Sedition Act to be constitutional. Referring to paragraphs 18 to 21 in the
judgment of the Court of Appeal, learned counsel submitted that whilst sections 4(1), 3(1), and 3(2)
of the Sedition Act were referred to, section 3(3) of the same Act was never referred to by the Court.
Nowhere in the judgment of the Court of Appeal was the issue of intention being irrelevant as
provided under section 3(3) was mentioned. He submitted that it is a constitutional requirement that
mens rea (intention) shall be an element of every offence created by law. Contrary to this
requirement, section 3(3) of the Sedition Act deems intention to be irrelevant. According to learned
counsel it is on this basis that the respondent contends that section 3(3) of the Sedition Act is
unconstitutional.
[17] Hence, learned counsel submitted that the Originating Summons is not vexatious or an abuse of
the court process, nor is it governed by res judicata. On the elements of res judicata, learned counsel
relied on Chua Wee Seng v Fazal Mohamed [1971] 1 MLJ 106, where Sharma J held:
“To constitute a matter res judicata the following conditions must be fulfilled:
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1. The matter directly and substantially in issue in the subsequent suit or issue must be the
same matter which was directly and substantially in issue either actually or constructively in
the former suit.