The Government of Malaysia v Heidy Quah Gaik Li [2026] 2 MLJ 397

1. INTRODUCTION

Social media has made it much easier to speak up about public issues. But it can also be used to threaten, harass or deliberately harm others. The difficult part is deciding where the law should draw the line, especially when it relies on broad words such as “offensive” and “annoy”.

That question came before the court in The Government of Malaysia v Heidy Quah Gaik Li [2026] 2 MLJ 397. Quah, a human-rights activist, was prosecuted under section 233(1)(a) of the Communications and Multimedia Act 1998 after posting about conditions in immigration detention centres during the COVID-19 pandemic. The Court of Appeal found the words “offensive” and “annoy” unconstitutional. The Federal Court later restored them, but agreed that Quah’s post was protected speech and should not have resulted in prosecution.^[1]

The case matters because it deals with the limits of freedom of expression under Article 10, the courts’ powers under Article 4, and whether judges can save a broadly worded criminal law by reading it narrowly. This analysis argues that the Federal Court reached the right result for Quah, but its reasoning still leaves the public without a clear answer on when offensive online speech becomes a criminal offence.

2. FACTS OF THE CASE

On 5 June 2020, Heidy Quah published a Facebook post about the spread of COVID-19 in Malaysian immigration detention centres. She linked the situation to overcrowding and inadequate health and safety measures, and criticised the authorities’ treatment of detainees during the pandemic.^[2]

On 27 July 2021, Quah was charged in the Kuala Lumpur Sessions Court under section 233(1)(a) of the Communications and Multimedia Act 1998. The prosecution alleged that she had knowingly transmitted an “offensive” communication with the intention to “annoy” another person.^[3]

While the criminal case was still pending, Quah filed a constitutional challenge in the Shah Alam High Court on 30 August 2021. She argued that the words “offensive” and “annoy” were inconsistent with Articles 8 and 10 of the Federal Constitution and should be declared invalid under Article 4(1).^[4]

In April 2022, the Sessions Court accepted Quah’s objection that the charge was defective and granted her a discharge not amounting to an acquittal. The investigation was later closed with “No Further Action”.^[5] Quah nevertheless continued with her constitutional challenge. The Court of Appeal later accepted that a DNAA did not prevent a future charge, although the Federal Court ultimately considered any future prosecution too remote following the NFA decision.^[6]

The High Court dismissed her challenge on 12 September 2023. It held that section 233 should be read purposively and within the wider framework of the CMA.^[7] Quah then appealed.

While the appeal was pending, Parliament amended section 233(1)(a). From 11 February 2025, “offensive” was replaced with “grossly offensive”.^[8] Quah’s case, however, still concerned the earlier wording because that was the version in force when she was charged.

On 19 August 2025, the Court of Appeal allowed Quah’s appeal and held that the words “offensive” and “annoy” were inconsistent with the constitutional protection of freedom of speech. The Government of Malaysia then appealed to the Federal Court.^[9]

3. LEGAL ISSUES AND ARGUMENTS

3.1 Whether “offensive” and “annoy” infringed Article 10(1)(a)

Quah argued that the words “offensive” and “annoy” were too vague and subjective to support a criminal charge. A statement might be called offensive simply because it criticises the government, challenges a popular view or makes people uncomfortable. What annoys one person may not annoy another. Because the provision gave no clear standard, people could not easily tell when an online post might cross into criminal conduct. Quah argued that this uncertainty could also discourage people from speaking openly about sensitive or controversial matters.

The Government argued that the words should not be read on their own. Section 233(1)(a) had to be considered as a whole and in light of the CMA’s purpose. It was not enough for a communication to be offensive. The prosecution also had to prove that it was made with the intention to annoy, abuse, threaten or harass another person. On this reading, the provision was aimed at deliberate online misconduct, not every statement that caused offence.^[10]

3.2 Whether the restriction concerned public order or morality

Quah argued that personal offence or irritation did not automatically amount to a public-order issue. She also pointed out that section 233 did not require proof that the communication caused, or was likely to cause, a wider disturbance.

The Government replied that online communication could not be treated in the same way as a private exchange. A post can be shared quickly, reach a large audience and cause harm beyond the original recipient. Harassment, doxxing, false information and inflammatory content involving race or religion may therefore affect public safety and social order. The Government argued that this brought section 233 within the public-order ground under Article 10(2)(a).^[11]

3.3 Whether the words should be struck down or read narrowly

Quah’s position was that the uncertainty in the words “offensive” and “annoy” could not be fixed through interpretation. They should therefore be declared invalid under Article 4(1).

The Government disagreed. It argued that striking down legislation should be a last resort. The Court could preserve the provision by reading it narrowly, with proper attention to the accused person’s intention and the context of the communication. A wrongful prosecution, it submitted, did not necessarily mean that the law itself was unconstitutional.^[12]

3.4 Whether proportionality applied

Quah also argued that section 233 went further than necessary and placed an excessive restriction on freedom of expression.

The Government and the Malaysian Communications and Multimedia Commission rejected that argument. They relied on Article 4(2), which limits the courts from questioning Parliament’s view that a restriction under Article 10(2) was necessary or expedient.^[13]

4. COURT’S DECISION AND REASONING

The Federal Court unanimously allowed the Government’s appeal in part. It restored the words “offensive” and “annoy” in section 233(1)(a) of the Communications and Multimedia Act 1998 and held that they were not unconstitutional. Still, the Court agreed that Heidy Quah should never have been prosecuted. Her Facebook post was protected expression, and there was no proper evidence that she had made it with the intention required under the provision.^[14]

4.1 Articles 4 and 10

The Court said that Article 4(2) limits judicial review, but does not remove it completely. Judges could not question Parliament’s view that a restriction was “necessary or expedient”. They could still ask whether the restriction actually fell within one of the grounds allowed under Article 10(2)(a), such as public order or morality. ^[15]

4.2 What Article 10(1)(a) protects

According to the Court, Article 10(1)(a) covers information, opinions, political criticism and other forms of speech that contribute to public discussion. But speech mainly intended to injure or harm another person may not receive the same protection. The Court also noted that although section 3(3) of the CMA rejects internet censorship, section 233 was meant to deal with the deliberate misuse of communication networks. ^{[16] [17]}

4.3 Reading the provision narrowly

The Court read “offensive with intent to annoy” as one phrase rather than treating “offensive” on its own as enough to create liability. The prosecution therefore had to prove a specific and vexatious intention to cause annoyance, distress, insult or injury. That intention had to be shown from the surrounding circumstances and could not simply be assumed because the statement was harsh or unpopular.^[18]

On this reading, ordinary criticism, political discussion, satire and opinions that merely offended others would not fall within the offence.^[19]

4.4 Public order and proportionality

The Court also found that the restriction could fall within the public-order ground under Article 10(2)(a). It rejected the idea that public order only concerned physical disturbances. Online content can spread quickly, reach a large audience and contribute to panic, communal tension or violence, particularly where race or religion is involved.^[20]

The Court did not apply proportionality. It held that Articles 4 and 10 already provided the constitutional framework needed to decide whether section 233 was valid.^[21]

4.5 Application to Quah

When the Court applied this interpretation to Quah’s case, it found no proper basis for the prosecution. Her post dealt with a matter of public concern, and there was no evidence of the required mens rea. The post therefore remained protected under Article 10(1)(a). The disputed words in section 233 were restored, although the Government only succeeded in part in its appeal.^[22]

5. CRITICAL ANALYSIS AND CONCLUSION

The Federal Court reached a workable result: section 233 remained in force, while Quah’s post was protected. The real issue is whether the reasoning gives enough guidance for future cases.

5.1 A wrongful prosecution does not automatically make the law invalid

The Federal Court was right not to treat Quah’s prosecution as proof that section 233(1)(a) was unconstitutional. A law can still have a legitimate purpose even if it is wrongly used in one case. Section 233 may still be needed to deal with genuine harassment, threats or deliberate online abuse.

But Quah’s post was far removed from that kind of conduct.^[23] It concerned a public issue, yet she was still charged. That shows the risk of giving the provision too wide a reach. In practice, much still depends on how investigators and prosecutors understand the law. A charge should only be brought where there is clear evidence of harmful intention. Otherwise, criticism may still be treated as criminal simply because someone finds it offensive or uncomfortable.

5.2 Reading down or rewriting section 233?

The Court read “offensive with intent to annoy” as one complete phrase. So, it was not enough for a communication to be offensive. The prosecution also had to prove a specific and vexatious intention to cause annoyance, distress, insult or injury.^[24]

That reading helps narrow the offence. It draws a line between speech that happens to offend and conduct that is deliberately meant to cause harm.

The problem is that this line is not obvious from the wording of section 233 itself. The judgment had to explain concepts such as “vexatious intent”, “dominant purpose” and the importance of surrounding circumstances.^[25] This makes it fair to ask whether the Court was simply interpreting the provision or adding limits that were not clearly there in the first place.

That matters because section 233 is a criminal provision. People should have a fair idea of what conduct may lead to punishment by reading the law itself. Under the old wording, an ordinary person would not necessarily know that offensive speech only becomes criminal when causing harm is the main purpose.

If the limits of an offence only become clear after detailed judicial explanation, then the wording itself may not be clear enough.

The later amendment changing “offensive” to “grossly offensive” also suggests that the level of offensiveness matters, although this does not by itself make the earlier wording unconstitutional. DPP v Collins makes a similar point: context and seriousness matter more than the fact that one person was offended.^[26]

The Court’s reading makes section 233 easier to apply. Even so, many of its safeguards now come from the judgment rather than from the words of the provision.

5.3 Article 10, public order and proportionality

The Court’s approach to Article 10 is less convincing. It suggested that Article 10(1)(a) has its own limits, so speech mainly intended to harm, insult or annoy may fall outside constitutional protection before Article 10(2)(a) is considered.^[27]

There is some logic to that. Threats and targeted harassment are clearly different from political criticism or public debate. But treating certain speech as outside Article 10(1)(a) from the beginning may avoid the structure already set out in the Constitution.

Article 10(1)(a) protects freedom of speech and expression. Article 10(2)(a) then allows Parliament to restrict that freedom on specific grounds, including public order and morality.^[28] It would make more sense to first treat the communication as expression, then ask whether restricting it can be justified under Article 10(2)(a).

The Court was right, though, to recognise that public order is no longer only about riots or physical disorder. Online content can spread quickly and affect far more people than the original recipient. Doxxing, repeated harassment and messages meant to stir racial or religious hostility can create wider harm.^[29]

Still, offence or anger on its own should not be enough. Political criticism often makes people angry or uncomfortable. If that is enough to turn speech into a public-order issue, Article 10 would give very little protection to controversial views.

Proportionality is important for the same reason. Even if a law serves a legitimate aim such as public order, the court should still ask whether criminal punishment goes further than needed. Sivarasa Rasiah v Badan Peguam Malaysia shows that proportionality is already part of Malaysian constitutional reasoning.^[30]

Shreya Singhal v Union of India also shows the problem with vague online-speech offences built around terms such as “annoyance” and “grossly offensive”. Malaysia’s constitutional framework is different, but the same concern remains: if people cannot tell where lawful speech ends and criminal speech begins, some may choose not to speak at all.^[31]

Conclusion

To conclude, the Federal Court reached a reasonable outcome, but section 233 is still not entirely clear. Much of the protection for lawful speech now comes from how the Court interpreted the provision, rather than from the wording of the law itself. There is also still some concern about how Article 10 and public order may be used to justify limits on speech.

Section 233 should be kept for genuinely serious online conduct where harmful intent can be clearly shown. It should not be used just because a statement is harsh, unpopular or makes people uncomfortable.

6. REFERENCES

Cases

• The Government of Malaysia v Heidy Quah Gaik Li [2026] 2 MLJ 397; [2026] MLJU 384 (Federal Court).
• DPP v Collins [2006] UKHL 40; [2006] 1 WLR 2223 (House of Lords).
• Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333; [2009] MLJU 1113 (Federal Court).
• Shreya Singhal v Union of India [2015] 3 MLJ 162 (Supreme Court of India).

Legislation

• Federal Constitution, arts 4 and 10.
• Communications and Multimedia Act 1998, ss 3(3), 233(1)(a).
• Communications and Multimedia (Amendment) Act 2025.

^[1] The Government of Malaysia v Heidy Quah Gaik Li [2026] 2 MLJ 397, [2026] MLJU 384 (Federal Court), paras [1], [309]–[312].

^[2] Ibid, para [35].

^[3] Ibid, para [36].

^[4] Ibid, paras [38]–[40].

^[5] Ibid, paras [37], [41].

^[6] Ibid, paras [49], [305]–[307].

^[7] Ibid, paras [42]–[44].

^[8] Ibid, paras [46], [48].

^[9] Ibid, paras [47], [51], [53]–[54].

^[10] Ibid, paras [21]–[30], [52], [54]–[55].

^[11] Ibid, para [52](a)–(k), paras [261]–[272].

^[12] Ibid, paras [184]–[203].

^[13] Ibid, paras [273]–[281].

^[14] Ibid, paras [309]–[312].

^[15] Ibid, paras [57]–[80], [91]–[103], [308].

^[16] Communications and Multimedia Act 1998, s 3(3)

^[17] The Government of Malaysia v Heidy Quah Gaik Li [2026] 2 MLJ 397, [2026] MLJU 384 (Federal Court), paras [116]–[122], [125]–[130].

^[18] Ibid, paras [199]–[218].

^[19] Ibid, paras [214]–[217].

^[20] Ibid, paras [262]–[271].

^[21] Ibid, paras [273]–[281].

^[22] Ibid, paras [309]–[313].

^[23] Ibid, paras [178]–[181], [217]–[221].

^[24] Ibid, paras [212]–[218].

^[25] Ibid, paras [214]–[217].

^[26] DPP v Collins [2006] UKHL 40, [2006] 1 WLR 2223 (House of Lords).

^[27] The Government of Malaysia v Heidy Quah Gaik Li [2026] 2 MLJ 397, [2026] MLJU 384 (Federal Court), paras [128]–[130].

^[28] Federal Constitution, art 10(1)(a)–(2)(a).

^[29] The Government of Malaysia v Heidy Quah Gaik Li [2026] 2 MLJ 397, [2026] MLJU 384, paras [265]–[271].

^[30] Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333, [2009] MLJU 1113 (Federal Court).

^[31] Shreya Singhal v Union of India [2015] 3 MLJ 162 (Supreme Court of India), paras 20, 35, 69, 82–83, 90.