Abang Bas' counsel within rights to give 'crush' explanation, says lawyer

The defence counsel of “Abang Bas”, Ahmad Zaharil Muhaiyar, was within his rights when he explained in a TikTok video the circumstances surrounding his client’s charges of sexual assault and uploading offensive posts.

Lawyer Ramesh NP Chandran said that Zaharil did not violate the principle of sub judice when he said that his client didn’t know the meaning of the word “crush” but was merely using the word because it was trendy and wanted the video to get into the For You Page of TikTok.

“The sub judice rule governs what public statements can be made about ongoing legal proceedings before the courts. 

“For the client, it means that the sub judice rule seeks to safeguard the sanctity of court proceedings pending disposal/determination to ensure that an accused gets a fair trial in a court of law.

“However, in my opinion, since it is his defence lawyer commenting and (replying)  to a question… then he is free to answer and should not be curtailed,” Ramesh told Malaysiakini.

“There is no prejudice to his client. Usually, the sub judice rule does not prohibit fair and accurate reporting of factual contents of any ongoing proceedings.

“I am also of the view that if it is a matter of public interest, it can and should be discussed at large without the fear of being in contempt of court,” he added.

Public interest consideration

Lawyer Kee Hui Yee concurred, saying that a balance must be struck between freedom of speech and the right to a fair trial.

“This issue is of public interest and the media has a right to report it. 

“If it is a matter of public interest, it can be discussed at large without fear of thereby being in contempt of court. 

“Criticisms can continue to be made and can be repeated. Fair comment does not prejudice a fair trial,” she said, citing judge Wan Suleiman FJ in Loot Ting Yee v Sheikh Hussain Sheikh Mohamed & Ors [1982] 1 MLJ 124.

“On the other hand, I do not think it is appropriate for the lawyer to discuss his client’s defence in public before the trial starts. 

“His client has the opportunity to put his case before the court,” she said.

Kee added that discussions shouldn’t be made in a way that will prejudice the trial. 

“Whatever has happened in court, the media can report it in a fair manner unless there is a gag order imposed by the court.

“The present case involves children, so the identity of the children must be protected and their wellbeing must be prioritised,” she added.

Another lawyer, Tun Laila Tun Rafaee, however, said in her own TikTok video that it was unethical for Zaharil to comment on an ongoing case.

The case gained notice on Sept 5 when a social media user shared a screenshot of a school bus driver’s TikTok post, where he referred to a pupil as his “crush” and “favourite”.

On Sept 10, the bus driver was charged at the Muar Sessions Court with two counts of physical and non-physical sexual assault against children under Sections 14(a) and 15(a)(iii) of the Sexual Offences Against Children Act 2017.

On Sept 12, he was then charged at the Batu Pahat Sessions Court under Section 233(1)(a) of the Communications and Multimedia Act 1998 (Act 588) for allegedly posting an offensive comment in the TikTok video.

According to the charge, he is accused of knowingly making and initiating the transmission of an offensive comment in a video showing a nine-year-old girl with the caption “Harini crush busy buat homework” (today my crush is busy doing homework) followed by a “love” emoji while observing the child.

He has since been released on bail of RM40,000.

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