The Malaysian Bar’s International Malaysia Law Conference (“IMLC”) 2026 takes place from 27 to 30 Oct 2026 at MITEC, Kuala Lumpur.
By Vanessa Yeong Yen Zan, Ng Choo Beng R Naidu & Partners
The afternoon session on 29 Oct 2026 at IMLC 2026 featured a moot court simulation designed to demonstrate best practices in advocacy for junior lawyers and the wider Bar. The simulation was presided over by The Honourable Justice Dato’ Lee Swee Seng, Judge of the Federal Court of Malaysia. Ng Jern-Fei KC and Emily Ho Mei Li from Lim Chee Wee Partnership appeared for the Applicant, while Dato’ Malik Imtiaz Sarwar and Abby Si Xinyi from Malik Imtiaz Sarwar appeared for the Respondent. The session was moderated by Nandhini Devi, Chairperson of the Negeri Sembilan Bar Young Lawyers and Pupils, Continued Legal Education Committee.
The fictional moot problem, Ruby Teng v Public Prosecutor, concerned an environmental activist who was charged under section 233(1)(a) of the Communications and Multimedia Act 1998 (“CMA”) after posting on social media that a private plantation company had unlawfully cleared protected rainforest. The posts were widely shared but had not resulted in any protests or unrest. Following the Federal Court’s decision in Government of Malaysia v Heidy Quah Gaik Li [2026] 3 CLJ 677, which upheld the words “offensive” and “annoy” in section 233(1)(a) were not unconstitutional, two constitutional questions were referred to the Federal Court in this moot:
(a) first, whether the public order restriction in article 10(2)(a) of the Federal Constitution requires the communication to have actually caused public disorder; and
(b) second, whether speech critical of a private company on environmental matters retains the same protection under article 10(1)(a) as speech critical of public authorities.
Opening for the Applicant on the first question, Ng Jern-Fei KC submitted that a person should only be convicted under section 233(1)(a) if the speech in question had actually caused public disorder. He distinguished between laws that stop harm before it occurs, where the risk of harm might suffice, and laws such as section 233(1)(a) that punish a person for speech already made, where actual harm to public order had to be shown. When Justice Dato’ Lee Swee Seng suggested that the exercise of prosecutorial discretion was a separate matter, he maintained that the problem lay in the law itself. He went so far as to submit that section 233(1)(a) was invalid in its entirety, as it made no reference to actual harm, or even to the likelihood of harm, and invited the Court to depart from Heidy Quah.
On the second question, Emily Ho Mei Li submitted that speech critical of a private company was entitled to the same constitutional protection as speech critical of public authorities. She pointed out that both sides agreed that article 10(1)(a) protects the speech of every citizen, and that any restriction must be justified under article 10(2)(a). A distinction based on the target of the speech would be artificial, as public-private partnerships are common and environmental conservation remains a matter of public concern, regardless of who is criticised. It would also run contrary to the generous interpretation to be given to constitutional freedoms.
For the Respondent, Dato’ Malik Imtiaz Sarwar submitted that the Court should be cautious about revisiting Heidy Quah so soon after it was decided. On the first question, he argued that because article 10(2)(a) permits restrictions “in the interest of” public order, Parliament may legislate against speech that could potentially disturb public order, and not only speech that has actually done so. When Justice Dato’ Lee Swee Seng asked whether this was reading too much into the phrase, suggesting that it might simply mean “having regard to” public order, he agreed. He argued that a power to prevent harm that could only be used after the harm had occurred would be no power to prevent harm at all.
On the second question, Abby Si Xinyi accepted that neither article 10(1) nor section 233 distinguishes between speech based on who it targets. She submitted, however, that whether a particular piece of speech should be prosecuted was for the Public Prosecutor and the trial court to assess on the facts, as the line between public authorities and private entities was not always clear-cut. The Court should not, she argued, lay down a universal rule.
In reply, Ng Jern-Fei KC submitted that the words “in the interest of” had to be read together with the words “necessary or expedient” that precede them in article 10(2)(a). While every law had some deterrent effect, what mattered was whether its main aim was to prevent harm or to punish. He warned of the chilling effect of the Respondent’s reading, observing that, on its logic, for example, criticising a neighbouring Government over the haze could result in prosecution. It would be all too easy, he said, if the answer to every constitutional challenge were simply to leave matters to prosecutorial discretion.
Dato’ Malik Imtiaz Sarwar responded that this was a distinction without a difference, remarking that had the Applicant instead argued that the words “offensive” and “annoy” were too vague, he would have crossed the floor to join his learned friend.
Sharing his observations of the moot court simulation, Justice Dato’ Lee Swee Seng stated that there was no substitute for thorough preparation, likening advocacy to swimming, which could not be learned by watching videos but only by getting into the water. He encouraged junior counsel to rise to the occasion, noting that both juniors knew their case as thoroughly as, if not better than, their seniors. Ng Jern-Fei KC added that the lesson for juniors was to know the facts and the law better than the person they were assisting, and to anticipate the other side's arguments.
On artificial intelligence, Justice Dato’ Lee Swee Seng saw nothing wrong with its use as a first port of call, provided it was disclosed and the decision-making remained with counsel. Adapting Stephen King’s advice to writers, he concluded that to be a good advocate, one must read a lot and speak a lot, recalling the golfer Jack Nicklaus, who remarked that the more he practised, the luckier he became.
*This article reports on Breakout Session 6, Stream B: Young Lawyers.