Mechanisms and suggestions for Section 114A of Evidence Act 1950

Now that you are aware of the problems of section 114A of Evidence Act 1950, especially the fact that it can unjustly inflicting hardship and constraint on innocent people.

The provision of presumption of fact in publication is devastating towards justice, as it assumes the person has committed the crime unless proven otherwise. The accused may not have sufficient knowledge to even defend himself.

This will open up further loophole for people with ill intent to make up evidence or contrive events so as to incriminate a person falsely.

Let us have a look at the mechanisms on the Internet where this could happen:

Mechanisms
1) Spoofing Attack
A spoofing attack is a situation where one person or program successfully masquerades as another by falsifying data and thereby gaining an illegitimate advantage. It is also known as man in the middle attack.

Technical Verdict: The weaknesses of the server in Company B is opening up possibility for C to pretend to be B and inflicting damage on A and B. Both A and B may or may not be able to know the existence of C (man in the middle) unless a robust network security is implemented.

Legal Verdict (sec 114A): B is guilty despite being the victim of attack by C. As B is not able to prove the existence of C, B assumes all liability.

Steve's comment: Technical vulnerability = liability? I am speechless.

My suggestion will be to set up an independent commission to review the incident. If the independent commission affirms that it is the system's vulnerability that allows crime to be committed, then B should be given waiver without being called for defence.

2) Identity Theft

Another possible problem is that a person who has knowledge of identity of a person uses legitimate information from that person to register for a network service for malicious purposes.

Technical Verdict: Unless a reliable security token (biometric, thumbprint) is used to authenticate the person, there is no way we can be sure whether the person is whom he claimed to be over the Internet.

Legal Verdict (sec 114A): The person is found guilty as all evidence points to the person. The person has no way to refute the claim of prosection if he has insufficient technical knowledge.

Steve's comment: Technically we may not be able to pinpoint the culprit without authentication, but since the burden of proof is on the victim, the victim will lose most of the time. This is not an exam for technical knowledge.

Many Internet content and service providers such as facebook, yahoo etc in fact does not perform identity authentication on the subscribers. The subscribers in fact can use photos or data belonging to any person to register for an account. This will create more problems and to identify the curlprit beyond reasonable doubt will be difficult unless we do a network tracing. The person needs to be caught red-handed, similar to the handling of such cases of Internet pedophile in overseas.

As a conclusion, clause (2) and (3) of section 114A, Evidence Act 1950 involves computers and network and hence it requires experts to determine whether there is any prima facie in the case. This cannot be left alone to the judiaciary as they do not have sufficient domain knowledge to make a judgement. An independent commission (with experts in computer and network security) should be formed to review every case and refer to the judiaciary only for those cases that are substantiated.

Context

The context using presumption was wrong in the first place. It should be substituted with more suitable words such as "suspected" because the person may be innocent.

If that is the case, the whole clause will become:

114A. Examination of fact in publication

(1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is suspected to have published or re-published the contents of the publication upon examination and determination by an independent commission, are required to enter defence.

(2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is suspected to be the person who published or re-published the publication, upon examination and determination by an independent commission, are required to enter defence.

(3) Any person who has in his custody or control any computer on which any publication originates

from is suspected to have published or re-published the content of the publication, upon examination and determination by an independent commission, are required to enter defence.

The problem of Evidence Act 1950 section 114A

Criminal Laws and trials carries very serious consequences and hence should always be carefully and justly carried out.

Most nations apply the principle of Ei incumbit probatio qui dicit, non qui negat (the burden of proof lies with who declares, not who denies), whereby one is considered innocent until proven guilty. The burden of proof always lies on the prosecution to prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, then the accused is to be acquitted.

The opposite principle is called Presumptions of guilt. An example is Order to Show Cause as in the Anglo-Saxon law systems. Court orders are issued to one or more of the parties requiring him/them to a case to justify, explain, or prove something to the court.

As you can see below, The Evidence Act section 114A uses a different principle of jurisprudence, i.e. presumption of guilt unless the contrary is proven.

Anyway, for those who are interested, Presumption of Innocence and the right to defence has been affirmed by Article 48 of the Charter of Fundamental Rights of the European Union. What I can say is our MPs really lack the substance and depth when it comes to Law making. We seemed to be heading backward to the Old Age where basic human right is lacking. 

I will write out my suggestions for improvement on the next episode, touching on technicalities of network security. Stay tuned.

Written by: Steve Teoh Chee Hooi

_______________________________________________________________

Evidence (Amendment) (No. 2)

New section 114A

3. The principal Act is amended by inserting after section 114 the following section:

114A. “Presumption of fact in publication

(1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

(2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

(3) Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.

(4) For the purpose of this section—

(a) “network service”and “network service provider” have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998 [Act 588]; and

(b) “publication” means a statement or a representation, whether in written, printed, pictorial, film, graphical,acoustic or other form displayed on the screen of a computer.”

EXPLANATORY STATEMENT

This Bill seeks to amend the Evidence Act 1950 (“Act 56”).

2.  Clause 1 contains the short title and the power of the Minister to appoint the commencement date of the proposed Act.

3. Clause 2 seeks to amend section 3 of Act 56 to streamline the definition of “computer” with the definition of “computer” in the Computer Crimes Act 1997.

4.  Clause 3 seeks to introduce a new section 114A into Act 56 to provide for the presumption of fact in publication in order to facilitate the identification and proving of the identity of an anonymous person involved in publication through the internet.

正義：一場思辨之旅 JUSTICE: What’s the Right Thing to Do

JUSTICE: What’s the Right Thing to Do  
by Michael Sandel (Harvard University)
 
正義：一場思辨之旅                                               作者：邁可．桑德爾


如果您想知道更多关于正义的概念以及如何将它应用在我们的社会，请观看以下：
http://www.youtube.com/embed/k43m1GcSyNA  （中文字幕）

For those who would want to know more about the concepts of justice and how it is applied to our society, please watch the episodes in http://www.justiceharvard.org/ （English）

媒体不是党报！

之前看到邱光耀博士又大言不惭的发表其“援交”论，矛头针对某些无辜的媒体从业员，只因为他们为国阵报道了一方面的新闻。这对他们极为不公平。这些人根本没有犯任何错，而是在履行的就是媒体的中立性-让观点自由发表（freedom of expression）。

媒体报告本来就应该是应该是公正无私(fair)，不分党派(non partisan)，根据各方的意见(impartial)，不加修饰的如实报道各项新闻（unmodified）。如果媒体都只是一味为邱光耀的论调报道，那它就失去媒体自由的意义，而沦为行动党的党报了。

邱光耀此举与德国在1933年因纳粹主义抬头，由约瑟夫·戈培尔（Joseph Goebbels）领导的公共启蒙和宣传部（Ministry of Public Enlightenment and Propaganda）压制新闻自由的方法一模一样，所有报章及影视媒体都要签署效忠于纳粹党的宣誓书（oath of loyalty ），违例者将被监禁或枪毙，许多无辜的人就这样成了牺牲品。

邱光耀的言论不仅羞辱媒体从业员，还带有“顺我者昌、逆我者亡”的意思。凡是支持己方的就是正义之师，反对的就是邪魔外道，把国阵所有人都妖魔化（demonize），甚至是采访国阵的媒体从业员也难幸免，借此贬低对方而提高己方的价值。这是非常荒谬绝伦的逻辑，殊不知纣王身边也有比干、微子、箕子等贤臣，国阵即使有美中不足，也不乏能人贤士，如果把全部人都妖魔化，那就是自欺欺人了。

深一层的想， 许多极端狂热主义（fanatism）如纳粹主义，甚至是种族清洗（genocide）都是通过意识灌输来合理化自己的道德价值（moral values），标榜着自己是正义、独一无二的，再散播一些危机意识，引起民愤，借此获得民众的支持。这种手法已经拐离了原本正义的普世意义。

这也让我想起之前因为为国阵站台而被杯葛的艺人，这些人的思维模式就是建立在愤怒（rage）的基础上，根本不能理性思考。试想想艺员难道就肯定有支持国阵的决定权吗？这倒不一定。许多签约艺员是要根据合约行事，毁约是要承担后果的，结果这些艺人就这样被一班无知的网民口诛笔伐，被枉套上走狗、汉奸等尖酸刻薄的字眼，这就是正义了吗？不！

正义是不随便伤害（包括语言中伤）、不侵犯他人基本人权的。除非那个人犯了法（breach of law），我们才会以應報正義（Retributive justice）对付其恶行。以上媒体从业员以及艺人难道因为履行责任就犯了法吗？邱光耀以及一些网民的行为根本就没有体现正义的基础，而是体现了狂热主义排除异己的极端手法！

如果邱光耀还是不懂得何谓正义是相对的不是简单的正邪二分法的话，我建议他去看看哈佛大学桑德爾（Michael Sandel ）教授的文章 - 正義：一場思辨之旅 （Justice: What’s the Right Thing to Do ）。

美国士兵守则

美国士兵守则（网络转载）

by：不语随光

美国士兵守则 1、 You are not a superman. 你不是超人。（不要无谓的冒险、不要做傻事）

2. If it's stupid but works，it isn't stupid. 如果一个蠢方法有效，那它就不是一个蠢方法。

3.Don't look conspicuous - it draws fire. (This is why aircraft carriers are called "Bomb Magnets".) 不要太显眼，因为那会引来对方火力攻击。（这就是航母被称为"炸弹磁铁"的原因。）

4. Never share a foxhole with anyone braver than you are. 别和比你勇敢的战友躲在同一个散兵坑里。

5. Never forget that the lowest bidder made your weapon. 别忘了你手上的武器是由最低价的承包商得标制造的。

6. If your attack is going really well，it's an ambush. 如果你的攻击进行得很顺利，那一定是你中了圈套。

7. All five-second grenade fuses will burn down in three seconds. 所有五秒的手榴弹引线都会在三秒内烧完。

8. Try to look unimportant because bad guys may be low on ammo. 尽量显得是一个无关紧要的人，因为敌人可能弹药不够了。（他会先打最重要的人）

9. If you are forward of your position，the artillary will fall short. 每当你要攻击前进时，炮兵往往也快要用完了炮弹。

10. The enemy diversion you are ignoring is the main attack. 那支你以为是敌军疑兵而不加注意的部队恰恰就是敌人的攻击主力。

11. The important things are always simple. 重要的事总是简单的。

12. The simple things are always hard. 简单的事总是难作到。

13. The easy way is always mined. 好走的路总是已被敌军布上了地雷。

14. If you are short of everything except enemy. You are in combat. 如果你除了敌人不缺，其它什么都缺，那你往往就要面临作战了。

15. Incoming fire has the right of way. 飞来的子弹有优先通行权。

16. If the enemy is in range， SO ARE YOU!!! 如果敌人正在你的射程内，别忘了你也在他的射程内。

17. No combat ready unit has ever passed inspections. 从没有一支完成战备的单位能通过校阅。

18. Things that must be together to work usually can't be shipped together. 必须要装配在一起才能发挥效力的武器装备通常不会一起运来。

19. Radio's will fail as soon as you need fire support desperately. 无线电通讯会有可能在你急需火力支援时失灵。

20. Anything you do can get you shot - including doing nothing. 你作的任何事都可能挨枪子儿 -- 包括你什么都不做。

21. Tracers work both ways. 曳光弹可以帮你找到敌踪；但也会让敌人找到你。

22. The only thing more accurate than incoming enemy fire is incoming friendly fire. 唯一比敌人火力还精确的是友军打过来的炮火。（误射）

23. Make it tough for the enemy to get in and you can't get out. 当你防守严密到敌人攻不进来时，那往往你自己也打出不去。

24. If you take more than your fair share of objectives， you will have more than your fair share of objectives to take. 如果你多报战功，那下次你会被给予超过你能力的目标让你去打。（自讨苦吃）

25. When both sides are convinced that they are about to lose， they are both  right. 当两军都觉得自己快输时，那他们可能都是对的。

26. Professional soldiers are predictable but the world is full of amateurs. 专业士兵的行为是你能预测的，可惜战场上业余的士兵占多数，因此敌人的行为大部分是你所无法预测的。