Who could have foreseen that a mere design on a pair of socks could precipitate the downfall of a business empire spanning 23 years and extending across much of the nation? Certainly not the directors and staff of KK Super Mart & Superstore Sdn Bhd (“KK Super Mart”), who found themselves embroiled in a nationwide religious controversy stemming from several pairs of socks bearing the word “Allah” sold at a KK Super Mart outlet.
Predictably, this incident has elicited strong disapproval from the Muslim community, with even His Majesty the Yang di-Pertuan Agong, Sultan Ibrahim, Malaysia’s King, reportedly[1] calling for decisive action against those deemed responsible, whether by intent or oversight. This, notably, forms the crux of the present discourse.
It is apt to invoke the Latin maxim “actus reus non facit reum nisi mens sit rea,” meaning “the act is not culpable unless the mind is guilty,” which warrants careful consideration in discussions below.
On March 27, 2024, it was reported that KK Super Mart Group founder and executive chairman Datuk Seri Dr K.K. Chai as well as another director of KK Super Mart were charged at the Shah Alam Sessions Court under Section 298 of the Penal Code. This section stipulates that:
“Whoever, with deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or places any object in the sight of that person, shall be punished with imprisonment for a term which may extend to one year or with fine or with both.”
In a criminal proceeding where the accused denies culpability (as was the case here), the burden falls upon the Prosecution to substantiate all elements of the charge in a full court trial. This encompasses establishing both the actus reus (physical act) and the mens rea (guilty mind), a burden that must be discharged beyond reasonable doubt.
Regarding the actus reus, it appears the Prosecution would encounter little difficulty in proving that the controversial socks indeed bore the word “Allah” and were offered for sale at KK Super Mart, especially in light of the tearful public admission made by Datuk Seri Dr K.K. Chai during a press conference following the eruption of the controversy on social media.
However, in respect of the mens rea, the Prosecution must further demonstrate a specific intention to commit the offense, namely, that the accused deliberately aimed to offend the Muslim community in Malaysia through the sale of the contentious socks. It is crucial to note that the language of Section 298 necessitates more than merely proving an intention to sell a variety of socks at KK Super Mart; this would only partially fulfil the evidentiary burden.
As it stands, public statements from KK Super Mart officials indicate that the company was not even aware of the presence of the controversial socks until the controversy erupted. KK Super Mart asserts that this was a significant operational oversight, as the products were not individually inspected. Furthermore, blame has been attributed to the vendor who supplied socks in bulk to KK Super Mart, some of which included the contentious items.
Should the Prosecution successfully prove both the actus reus and the mens rea, a conviction against the accused may ensue. However, failure to establish any constituent element of the offense, including the mens rea, would necessitate the court’s acquittal of the accused.
Despite KK Super Mart and its directors facing public condemnation and presumptive guilt in the court of social media, the legal proceedings are unlikely to be as straightforward. Astute legal practitioners adept at discerning nuances in legal language and skilfully marshalling facts to advance their client’s case may yield unexpected outcomes in this case. The denouement remains to be seen—peacefully awaited.
[1] https://www.freemalaysiatoday.com/category/nation/2024/03/19/agong-unhappy-about-allah-socks-issue/
About the Author
Xavier is a Founding Partner of XK Law. He graduated with Honours from the University of London, United Kingdom. Xavier is passionate about combating injustice and loves doing so though his legal work.
