Sex bloggers Alvin Tan and his former partner Vivian Lee have been freed over the charge of insulting Muslims with a Facebook posting showing the pair eating pork soup (bah kut teh) with the words "Selamat Berbuka Puasa" during the fasting month.

The Federal Court unanimously dismissed the prosecution's appeal over the Court of Appeal's decision in freeing the two of the charge under Section 298 A of the Penal Code.

"This follows the apex court allowing our preliminary objection that the Federal Court does not have the jurisdiction to hear the prosecution's appeal.

"This is because the case originated at the Kuala Lumpur Sessions Court and hence, whatever decision and appeal should end at the Court of Appeal," their lawyer Chong Joo Tian told Malaysiakini .

The five-member bench was headed by Federal Court judge Justice Abdull Hamid Embong.

The other judges sitting in  today unanimous decision today were Justices Zainun Ali, Hasan Lah, Ahmad Ma'arop and Ramly Ali.

Tan and Lee were charged with uploading a picture of them, accompanied with the caption, ‘Selamat Berbuka Puasa (with Bak Kut The... fragrant, delicious and appetising)’ on their Facebook account, which was likely to stir interfaith conflict, at a restaurant in Dang Wangi on July 11 and 12, in 2013.

Tan and Lee, however, are facing two other charges under the Sedition Act and Film Censorship Act respectively.

Under the Sedition Act 1948, they are charged with publishing inciting content, namely the same picture and caption on their Facebook link, https://www.facebook.com/alvivi.swingers, at 568-14-18, Kompleks Mutiara Jalan Ipoh, Batu 3 ½ in Kuala Lumpur.

The Film Censorship Act 2002 charge involves the posting of pornographic pictures on http:// alviviswingers.tumblr.com/, between July 6 and 7, last year, at the same place.

The two on-going charges have been fixed for case management at a sessions court in Kuala Lumpur on March 6. However, Tan is seeking asylum in the United States, after having skipped bail. His passport has since been revoked.

The Court of Appeal in April last year dropped the charge under Section 298A (1) (a), ruling that it was not applicable to non-Muslims.

The three-member Court of Appeal bench led by Justice Mohtarudin, who sat with Justices Rohana Yusof and Tengku Maimun Tuan Mat, said the panel allowed the appeal brought by the duo to strike the charge as it was bound by a 1988 Supreme Court ruling in a case of Mamat Daud and Others vs the Goverment.