The Kuala Lumpur High Court today quashed the conviction of a marketing director of defunct political tabloid Haraki for breaching the Printing Presses and Publications Act (PPPA) 1984 and set aside the RM5,000 imposed for the offence.

Justice Heliliah Mohd Yusof made the decision after ruling that the trial against publisher Penerbitan Pemuda marketing director, Zabidi Morad, was "illegal and a nullity" as the charge instituted against him was defective.

She said the decision had to be made due to the fatal misdirections on the part of the magistrate when convicting Zabidi for possession of 545 copies of the unlicensed publication Haraki at the publisher's office in Shah Alam on May 5, 2001.

"The combined effects of a defective charge and the various misdirections entail the trial against the appellant illegal and a nullity. The court therefore quashes the conviction and sentence, and the appellant is to be refunded the fine," she said.

In July last year, Magistrate Habibah Harun ruled that the defence had failed to establish any reasonable doubt in the prosecution's case that Zabidi had committed an offence, when found in possession of the publications which had no permit from the home ministry.

Zabidi then filed an appeal stating that the magistrate had erred in law in her failure to find that the charge instituted against him was flawed.

He was represented by lawyer Mohd Hanipa Maidin, while deputy public prosecutor Che Abdul Rani Megat Kasim appeared for the prosecution.

"We are happy with the judge's ruling. It proves that our fight for democracy is recognised," said Hanipa who, however, was informed that the prosecution may be appealing the decision.

'Wrong interpretation'

Penerbitan Pemuda was owned by controversial political writer Ahmad Lutfi Othman, (photo), who also had other publications - Detik, Wasilah, Tamadun and Al-Islah - banned by the government.

The PPPA compels publishers to obtain and annually renew a permit from the ministry. The law has been under fire from civil-society groups and journalists, who say that it curbs freedom of expression and press freedom.

In her lengthy oral judgment, Heliliah said she agreed with the appellant that the charge instituted against him was flawed because it did not specify the offence under section 5(2)(b) of the Act.

She said the prosecution had not only failed to submit convincingly on interpretation of the section, but had also erroneously interpreted the provision to give the meaning that "mere possession" is an offence under the Act.

She believed that such skewed interpretation had led to the drafting of the flawed charge which had in turn, led the magistrate into a "bottomless pit" in making her decision.

After scrutinising the provision in its legal and lingual context, Heliliah found that "mere possession or possession per se" is not a criminal offence under the Act.

Possession of an unlicensed publication is an offence only when the act is committed with the intention to import, publish, sell, circulate or distribute them, she added.

Heliliah criticised the conduct of both the prosecution and the magistrate's court for putting the burden of proof on the appellant. This had breached the Criminal Procedure Code which states that the burden is on the prosecution.

On the appellant's argument that the Act is "unconstitutional", the judge said that the issue was irrelevant to the merits of the appeal and declined to make any ruling on the matter.

"However I wish to remind the appellant's counsel that Article 10 of the Federal Constitution (on freedom of speech) is not to be read in isolation of the other provisions," she added.

"Under clause 2 of the article states that the parliament may impose restriction of such basic freedoms in the interest of the nation's security, public order and morality."