Tough to prove alleged nudists ran foul of the law, say crime lawyers

The prosecution may have an uphill task proving its case if 15 people who were allegedly involved in nude sport games on a Penang beach are charged, criminal lawyers said.

They said although it was a crime discovered through technological advancement, the laws, including the Penal Code, are ill-equipped to handle this matter.

Lawyer Fahri Azzat said the public came to know of the incident because it was captured on video and uploaded online for everyone to view.

"This could not have happened in the 18th century when the Penal Code was codified," he said.

Police said they were investigating the suspects under Sections 294(a) and 509 of the Penal Code.

Section 294(a) states that whoever, to the annoyance of others, does any obscene act in any public place shall be punished with a maximum three months jail or a fine or both.

Under Section 509, a person guilty of using a word or gesture intended to insult the modesty of another can be jailed up to five years or fined or both.

Fahri said that Section 294a required that the obscene act in a public place must be at the annoyance of others present at the scene.

"The annoyance must arise at the time of the act, not after. It is not enough to be irritated knowing or watching the act later," he added.

He said in that sense the suspects did not run foul of the law.

Word of the nude games spread after a five minutes and 52 seconds video titled “Pesta Bogel di Teluk Bahang, Penang” went viral on social media.

The video showed a group of 15 men and women in the buff participating in various activities at a hut and on the beach.

Police have identified all 15 participants, consisting of seven locals, four Singaporeans, two Myanmar nationals and one each from India and the Philippines.

Police have remanded two men, a Malaysian and a Singaporean, in connection with the alleged nude festival held at Pantai Teluk Kampi in the Teluk Bahang National Park in Penang in May.

Lawyer S.N. Nair said the prosecution has several ingredients to produce, chief among them was to prove its case beyond a reasonable doubt.

"Moreover, the identities of the suspects need to be proven and the video clip is at best secondary evidence and the admissibility of the exhibit depends on several extraneous matters."

He said the authenticity of the video also has to be proven, among others.

Lawyer Datuk Naran Singh said prosecution needs to show that the nudists had intended to insult the modesty of another person in public to prove their case under Section 509.

"One's modesty cannot be violated by watching the footage of a video taken in May," he said, questioning what public interest could be achieved by prosecuting them.

He said the police could call the suspects and reprimand them instead of subjecting them to further humiliation.

But, Datuk Baljit Singh Sidhu said the prosecution could prove its case because annoyance and intention to insult one's modesty could come from a witness who had viewed the video.

"A report was made and police are right to investigate because there is public interest element involved as the incident occurred at a public beach." – August 15, 2014.