Federal Court explains decision for RM500,000 Malaysiakini fine, cites ‘public interest’ and deterrent effect

Malaysiakini editor-in-chief Steven Gan arrives at the Federal Court in Putrajaya February 19, 2021. ― Picture by Hari Anggara
Malaysiakini editor-in-chief Steven Gan arrives at the Federal Court in Putrajaya February 19, 2021. ― Picture by Hari Anggara

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KUALA LUMPUR, March 3 — The Federal Court has released the full grounds of its majority ruling in Malaysiakini’s contempt of court case over five readers’ comments, explaining in full why six of the seven judges there had found the news portal guilty and decided on a RM500,000 sum as fine.

Court of Appeal president Tan Sri Rohana Yusuf, who had chaired the seven-judge panel and penned the majority ruling, cited “public interest” for the decision in meting out a sentence that was “not too lenient” to discourage others from committing contempt of court.

In Rohana’s full 76-page grounds of majority judgment that was dated February 19 and uploaded yesterday on the judiciary’s website, she noted that Malaysiakini’s lawyer had suggested a fine of RM30,000 in view of Malaysiakini’s apology and cooperation given, while the Attorney General’s Chambers had proposed a fine of RM200,000.

Rohana explained that it is always the prerogative of the court to decide on an appropriate sentence, based on the general principles of the extent and seriousness of the offence committed, the guilty person’s previous conduct and the public interest factor.

Noting that the sentencing for contempt cases depends on the facts and context of each case, Rohana stressed the five readers’ comments — that were previously hosted on Malaysiakini’s website’s comment section — amounted to an unwarranted attack which exposed the judiciary to “embarrassment, public scandal, contempt and to the point of belittling the judiciary”.

She said the readers’ comments had also tarnished the judiciary by accusing it of being guilty of corrupt activity and alleging it to have compromised its integrity in carrying out judicial functions, also saying that such comments if allowed to continue would result in the undermining of public confidence in the judiciary.

The judge went on to say that there is no maximum or minimum sentence to be imposed by the courts on a person who commits contempt of court, adding that “public interest” is the foremost or most important factor when deciding on an appropriate sentence based on the facts in Malaysiakini’s case.

“In our view an appropriate sentence serves public interest in two ways. It may deter others from the temptation to commit such crime where the punishment is negligible, or it may deter that particular criminal from repeating the same crime.

“Not only regarding each crime, but in regard to each criminal the court always has the right and duty to decide whether to be lenient or severe,” Rohana said.

She then went through past Federal Court decisions in various contempt cases, including six months’ imprisonment for lawyer V.K. Lingam and RM100,000 fine each or eight months’ imprisonment if the fine could not be paid for the others in the Attorney General of Malaysia v Dato’ See Teow Chuan & Ors [2018] 3 CLJ 283 case.

Rohana also referred to the Hoslan Hussin v Majlis Agama Islam Wilayah Persekutuan [2012] 4 CLJ 193 case which involved a religious cleric being convicted of contempt of court over the throwing of a pair of shoes towards the Federal Court judges during a hearing to express displeasure at the court’s decision against him, noting that the one year sentence imposed on him for contempt was to preserve the courts’ dignity and as an apology alone would not lessen the seriousness of the offence.

Rohana also noted the PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd [2019] 4 MLJ 747 involving a lawyer who had published two articles on a website which had alleged misconduct, improprieties and corruption by the judiciary in the hearing of a court application to expunge part of a dissenting judgment, noting that this person was sentenced to 30 days’ jail, and a RM40,000 fine or 30 days’ imprisonment in default.

Going back to the Malaysiakini case, Rohana said the contempt committed in this case was “very much more severe” than the above three cases, noting among other things that it had made baseless allegations of corruption, and that the language used and allegations made were beyond any limits of decency.

Saying that the allegations in the readers’ comments had targeted the judiciary as a whole and carried the wild suggestion of the chief justice being corrupt, Rohana said such comments which Malaysiakini was said to have facilitated to publish had “besmirched” the judiciary’s good name and “subverted the course of administration of justice, undermined public confidence, offended the dignity, integrity and impartiality of the judiciary.”

“Having weighed the mitigating factors as submitted by the Respondents against the seriousness of the offence committed, it is only right that the sentence must not be too lenient,” she said, referring to Malaysiakini and its editor-in-chief Steven Gan as the respondents.

“Public interest demands a deterrent sentence be meted out against the First Respondent. We therefore hold, a fine of RM500,000 is appropriate. We accordingly make an order for the fine to be paid within three days from Monday, 22 February 2021,” she said, referring to Malaysiakini as the first respondent.

Rohana’s majority judgment was agreed to by five other Federal Court judges, while Federal Court judge Nallini Pathmanathan was the only one who decided in a minority ruling dated February 19 that Malaysiakini was not in contempt of court. All seven judges had found Malaysiakini’s editor-in-chief Steven Gan of not being guilty of contempt of court.

Malaysiakini managed to raise more than RM500,000 in public donations within hours of the Federal Court’s sentencing on February 19, and had paid the fine on February 23 which was a day before the deadline.

Malaysiakini previously said it had removed the five readers’ comments within 12 minutes of being alerted on June 12, 2020 by the police of investigations into the comments, and that its editor-in-chief had provided a statement to the police on June 16 as requested, while also providing details of the five subscribers to the Malaysian Communications and Multimedia Commission (MCMC) and the police in compliance with a June 24 request by MCMC.

On June 17, 2020, the Federal Court granted leave or allowed the attorney general to start contempt of court proceedings against Malaysiakini’s operator Mkini Dot Com Sdn Bhd and Malaysiakini’s “Ketua Editor” for facilitating the publishing of the five comments. The five comments had been deleted from the news site by then.

The Federal Court had in July 2020 heard the case, before delivering its majority and minority rulings on February 19.

A simplified version of both the Federal Court’s majority and minority rulings in the Malaysiakini case can be read here.

The full grounds of the Federal Court’s majority judgment numbering 76 pages and the full grounds of the minority judgment numbering 67 pages were both made publicly available yesterday on the judiciary’s website.

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