Sessions Court sets April 14 to decide on Alvivi case

PHOTO: The Star/ANN

KUALA LUMPUR: The Sessions Court here has fixed April 14 for its decision in the case involving sex bloggers Alvin Tan Jye Yee and Vivian Lee May Ling.

Judge Abdul Rashid Daud set the date after hearing submissions from defense counsel Chang Joo Tian and the prosecution, led by deputy public prosecutor Wan Shaharuddin Wan Ladin.

In submissions, Chang had argued that there was no common intention between Lee and Tan regarding the controversial bak kut teh Facebook posting made by Lee and Tan.

"The Samsung laptop was proven by the prosecution to belong to Tan and not Lee, and Tan was proven to be the administrator of the Facebook page. The testimony is insufficient to show a common intention between Lee and Tan," said Chang Monday.

He added that the written submissions of the prosecution do not contain any mentions of the Film Censorship Act.

"Our reply is that the prosecution did not prove the elements of an offence under the Film Censorship Act," said Chang.

Chang had pointed out in his written submissions that there is a large difference between a publication that is insulting and humiliating to a religious community and a publication, which is seditious in nature.

"The court must look at the evidence to determine whether it would in fact have a seditious tendency on people of a different religious background. The prosecution's evidence in this case showed clearly that the Facebook greeting had raised the anger of both Muslims and non-Muslims towards the person behind the greeting but not another religious community," said Chang.

He added that there is also no evidence showing any real likelihood or tendency of any conflict or fighting between Muslims and non-Muslims resulting from the Facebook post.

On July 18, 2013, Tan, 27, and Lee, 26, were jointly charged under Subsection 5(1) of the Film Censorship Act, Section 4(1)(c) of the Sedition Act and Section 298A(1) of the Penal Code.

They were charged with displaying pornographic images on their blog between July 6 and 7 that year.

For the second charge, they were accused of uploading content that could possibly stir hostility among those with different beliefs between July 11 and 12.

They also face a charge of publishing a seditious photograph and inviting Muslims to break fast with bak kut teh together with a halal logo.

Tan and Lee later apologised for the video posting on YouTube, saying it was done in jest.

Their charge under Section 298A(1) was later dropped by the Court of Appeal on grounds that it did not apply to non-Muslims.

Tan has jumped bail and is currently in the United States.

Meanwhile, Wan Shaharuddin argued that the seditious publication was made by both Lee and Tan.

"The publication contains pictures of Lee and Tan, which was not denied by the defence. Through our witnesses, the prosecution has proved the identity of the accused (Lee) in the publication, and we have proved that the accused made the publication together with Tan," said Wan Shaharuddin.

He added that the two affidavits made by Lee shows that both Lee and Tan edited a photo of them eating bak kut teh as it did not contain a caption or the "halal" logo.

Wan Shaharuddin said in his submissions that Section 114A(1) of the Evidence Act states that a person whose photograph appears on any publication depicting them as the owner, host, administrator or sub-editor is presumed to have published or re-published the contents of the publication unless the contrary is proved.

"The fact to be proved in this case is that the accused - Lee - published the seditious publication. We can use the contents of two affidavits to infer that the accused was the one who made the publication. The testimony of the prosecution witnesses shows that the accused made the publication on Facebook as charged," said Wan Shaharuddin.

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