Former sex bloggers free from one charge, still face two

Former sex bloggers, Alvin Tan and Vivian Lee is free from a charge of creating religious enmity between people of different faiths by uploading pictures on their Facebook page during the month of Ramadan.

However, they still face two more charges.

Federal Court today dismissed an appeal filed by the prosecution against the Court of Appeal decision on April 21, 2014 , which struck out Tan and Lee's charges under section 298A (1) (a) of the Penal Code.

The panel of judges led by Tan Sri Abdull Hamid Embong, Tan Sri Ahmad Maarop, Tan Sri Hasan Lah, Datuk Zainun Ali and Datuk Ramly Ali allowed a preliminary objection raised by Tan and Lee's counsels Chong Joo Tian and K. T. Wong against the appeal.

"We are unanimous in allowing the preliminary objection and dismissing the appeal on jurisdiction (basis)," said Hamid.

Alvin, whose full name is Tan Jye Yee, 27, and Vivian or Lee May Ling, 26, were charged with uploading their picture with the caption, "Selamat Berbuka Puasa" on their Facebook account at a restaurant in Dang Wangi on July 11 and 12, 2013.

The two, who also faces two other charges in the Sessions Court, had filed an application to strike the charge at the High Court.

In the application, Tan and Lee had sought for an order to declare that Section 298A is inconsistent with and contradictory to the Federal Constitution and could not be enforced against them.

They claim that even if it was lawful, it is only applied to Muslims.

On Nov 21, 2013, High Court dismissed their application saying that Section 298A (1)(a) was applicable, valid and enforceable, regardless of race, ethnicity or religion of a person, including the two.

The two then appealed to the Court of Appeal, which ruled that the charge under section 298A could not be enforced on the couple as it is not applicable to the non-Muslims.

The prosecution filed an appeal against the decision at the Federal Court.

Deputy Public Prosecutor Manoj Kurup today submitted that the Federal Court has the jurisdiction to hear the case.

He said the High Court is the first court to hear the matter on Constitutional points.

However, Chong raised the preliminary objection saying the Federal Court has no jurisdiction to hear the matter as the case is from a Sessions Court and only the Court of Appeal could hear the case.

Outside the court, Chong said:"The matter stops at Court of Appeal court."

He said the Sessions Court could refer case to the High Court on constitutional points. High Court must state the questions and transmit the case to the Federal Court for determination on the questions.

The two were also jointly charged under the Incitement Act 1948 with publishing inciting content, namely the same picture and caption on their Facebook link at 568-14-18, Kompleks Mutiara Jalan Ipoh.

They were also charged under the Film Censorship Act 2002 involving the posting of pornographic pictures on the internet between July 6 and 7, last year at the same place.

The cases are fixed for a mention on March 6 at a Sessions Court.

Commenting on the Federal Court ruling on a post on his Facebook page at https://www.facebook.com/alvintan.yolo, Tan said: "Life is good — hell, awesome — in America. If you guys were sincere, you shouldn't have prosecuted us in the first place. How magnanimous, dropping one charge out of three ... after two years and more than RM100,000 in legal fees footed by me!"