The principle of presumption under the newly-inserted Section 114A of the Evidence Act 1950 does not mean an accused is automatically guilty of cyber crime.

This is because the prosecution will still need to prove the primary facts, and cannot press charges on presumption alone, said the head of the property forfeiture unit of the Attorney-General's Chambers (AG's Chambers), Anselm Charles Fernandis.

"We will not charge if we can only rely on presumption. (The people) should have faith in us," he said.

NONEThe prosecution needs to prove its case in court, and the court is the best place to safeguard the rights of the accused where presumption is concerned, Fernandis (left) said.

The new section was necessary to curb cyber crimes in this borderless age, he told a seminar on Section 114A, organised by the prosecution division of the AG Chambers in Putrajaya yesterday to address concerns raised by NGOs, political parties, businesses and members of the public.

However, while Fernandis admitted that the new section may have been established in a drastic manner, he said that "drastic measures need to be taken in drastic circumstances".

"Section 114A is meant to facilitate the identification and prosecution of an anonymous person involved in publication through the Internet," he said.

The new section would be used for various offences, including Sections 298A and 499 of the Penal Code, Sections 211 and 233 of the Communications and Multimedia Act and Section 4 of the Sedition Act.

Section 114A states that any individual or organisation whose name is carried together with any matter published online is the author of that content.
'Hacking, virus attacks, alibi will also be considered'
If they are not, it is up to them to prove their innocence. The same applies to the network owners.

azlanFernandis said the prosecution would consider the elements of hacking, virus attacks, alibi and the defence statement of the suspects before it moves to prosecute.

He also said that the principle of presumption is no stranger to Malaysian law as it is present in the Dangerous Drugs Act and Malaysian Anti-Corruption Commission Act.

Deputy solicitor-general II Tun Majid Tun Hamzah, who also spoke, echoed the statement by Fernandis and said the principle of presumption would be applied after the primary facts requirements were met.

Tun Majid gave his assurance to the people that nobody would be wrongly charged under Section 114A, saying, "if we are not sure, we will not charge them".

It would be "very easy", he added, for the accused to rebut presumption in court, using their legal experts.

Even though Section 114A has been gazetted, Tun Hamzah said, the AG's Chambers had yet to put it to use.

Another speaker, the head of Digital Forensics at CyberSecurity Malaysia, Mohd Zabri Adil Talib, said he considered Section 114A to be "a saviour, a new hope and milestone in helping identify cyber criminals".

NONEZabri (right) said that while "it is tough to prove cyber crime in a trial, one can prove who owns the computer used, but it may be very difficult to identify the publisher".

He said: "We have failed in every five out of seven cases in cyber crime trials. The judge would say, ‘you can't prove the accused was the person who pinned the keyboard'.

"The accused can seek expert help in court," Zabri said, adding that CyberSecurity offers digital forensic service for a civil trial at the rate of RM300 an hour.

Disagreeing with the AG's Chambers, the Bar Council's criminal law committee chairperson Rajpal Singh said Section 114A of the Evidence Act transferred the burden of proof to the accused and therefore it went against Article 5(1) of the federal constitution.

Rajpal argued that this principle of presumption in Section 114A would make website owners, operators and users to prove their innocence in answering to the allegation, besides also causing netizens to shy away from the Internet.