PUTRAJAYA (July 5): Graphic designer Mohd Fahmi Reza Mohd Zarin failed in his bid to set aside his conviction for uploading an offensive caricature image of former Prime Minister Datuk Seri Najib Tun Razak on his Facebook account in 2016.
The appeal was struck off in a unanimous decision by a three-member Court of Appeal bench led by Justice Datuk Kamardin Hashim, who sat with Justices Datuk Wira Kamaludin Md Said and Datuk Mohamad Zabidin Mohd Diah.
Justice Kamardin said the panel found that the appeal by Mohd Fahmi Reza had no merit, thus he upheld the conviction and sentence imposed by the High Court, which was supported with the testimony of prosecution witnesses.
“Therefore, the appellant's appeal is dismissed and the conviction and sentence imposed by the High Court are upheld,” he said.
Mohd Fahmi Reza, 41, was charged with improper use of the network facilities by knowingly creating communication that was offensive with an intention to annoy other people through his Facebook account, "Fahmi Reza" on Feb 8, 2016.
The posting was allegedly read at an address in Seraya Sdn Bhd, Batu 3, Jalan Jelapang here at 2.40pm the same day (Feb 8, 2016).
He was charged under Section 233(1)(a) of the Communications and Multimedia Act 1998 (Act 588), punishable under Section 233(3) of the same Act, which carries a maximum fine of RM50,000, or jail not exceeding one year, or both, on conviction.
The prosecution had filed an appeal against the Nov 12, 2018 decision of the Ipoh High Court in setting aside Mohd Fahmi Reza’s one-month jail sentence and reduced his fine from RM30,000 to RM10,000 after allowing his appeal on the sentence.
Mohd Fahmi Reza too filed an appeal to the Court of Appeal to set aside the conviction.
On Jan 15 this year, the prosecution had withdrawn its appeal for a higher sentence against Mohd Fahmi Reza, his appeal to quash the conviction.
On Feb 20 last year, the Ipoh Sessions Court sentenced Mohd Fahmi Reza to one month jail and fined RM30,000 after finding him guilty of the charge.
Earlier, in his submission, counsel Syahredzan Johan who represented Mohd Fahmi Reza said the caricature image that was uploaded was a form of parody (joke) and was meant at criticising the then authorities for suppressing the freedom of communication in the social media.
He added there was no evidence from the witness's testimony suggesting the post was offensive with an intention to annoy other people and the charge was defective as it did not specify any individuals or parties who were upset by his actions.
Meanwhile, Deputy Public Prosecutor (DPP) Nurshafini Mustafha, when addressing the ‘annoying’ issue argued that the appellant’ had a clear intention to annoy others through this act.
“The posting by the appellant on Facebook was set as ‘public setting’ so that anyone can view the post. If the appellant did not have any intention to hurt others, why was the caricature image which was originally uploaded on Jan 31, 2016, was again uploaded on Feb 8, 2016, with a false notice from the Malaysian Communications and Multimedia Commission (MCMC)
Another DPP Datuk Mohd Dusuki Mokhtar added that the annoyed individual or party was not the element in the charge but what was important, was to prove that the appellant had the intention (to do so) when he committed the offence. — Bernama