PUTRAJAYA: 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 Najib 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 Kamardin Hashim, who sat with Justices Kamaludin Md Said and Mohamad Zabidin Mohd Diah.
Kamardin said the panel found that the appeal by Fahmi had no merit and upheld the conviction and sentence imposed by the High Court which, he said, were supported by the testimony of prosecution witnesses.
“The appellant’s appeal is dismissed and the conviction and sentence imposed by the High Court are upheld,” he said.
Fahmi, 41, was charged with improper use of network facilities by 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 alleged to have been from an address at Seraya Sdn Bhd, Batu 3, Jalan Jelapang here at 2.40pm the same day.
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 Fahmi’s one-month jail sentence and reducing his fine from RM30,000 to RM10,000 after allowing his appeal on the sentence.
Fahmi also filed an appeal to the Court of Appeal to set aside the conviction.
On Jan 15 this year, the prosecution withdrew its appeal for a higher sentence against Fahmi Reza after his appeal to quash the conviction.
On Feb 20 last year, the Ipoh Sessions Court sentenced Fahmi to one month jail and fined him RM30,000 after finding him guilty of the charge.
Earlier, in his submission, counsel Syahredzan Johan who represented Fahmi 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 speech 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, again uploaded on Feb 8, 2016, with a false notice from the Malaysian Communications and Multimedia Commission (MCMC)
Another DPP 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.