[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v MUHAMAD NORULAINI BIN SUPARDI (WA-45SO-23-10/2024)

He understood the charge as read to him, pursuant to section 173 (a) of the CPC;

(ii) It was read and explained to him clearly, by the court via its interpreter in Bahasa Melayu, the language he understands and conversant with. This would be the process of PBTF – pertuduhan dibaca dan diterangkan dan tertuduh faham;

(iii) The accused then pleads guilty. He had the choice to do so by his own mouth. In the present case, he has no legal representation;

(iv) The only satisfactory way of ascertaining what is in the mind of the accused is to make him plead himself and for his words to be recorded;

The plea of guilty is followed by the process wherein this court had ascertained that the accused understood the nature and S/N 6z2DGu1t2UmbDsyiAwEBgg consequence of his plea of guilty to the charge. That entails, as explained to him that there would not be a trial by witnesses for his case and he will not have the opportunity to put forward his defence and once the court records and accepts his plea of guilty, he would be sentenced accordingly under the law after having heard his plea in mitigation. He is also told that he is not allowed to appeal against his conviction, as stated in section 305 of the CPC. The sentence available under the law, was explained to him, so that he knows what would be the punishment against him. In common parlance this process is referred to as the UNCP (accused understands the nature and consequence of his plea of guilty) or FSAP (the Bahasa Melayu equivalent - tertuduh faham sifat dan akibat pengakuan bersalah) and the consequences that await him when making such plea that he would be convicted and sentenced forthwith and if he has to suffer incarceration, he has to succumb to it with immediate effect;

(vi) Before the plea of guilty by the accused was accepted by the court, the accused had agreed to the facts of the case presented by the prosecution in court, vide P9. The facts play an integral part in the plea of guilty proceeding as it will demonstrate the mode and manner by which the accused had S/N 6z2DGu1t2UmbDsyiAwEBgg committed the offence as charged. The facts were read and explained to the accused in Bahasa Melayu;

(vii) He was not confused or derailed, and he knew of his choice not to admit to the facts tendered by the prosecution. Further, no clarification was sought from the prosecution on the facts, as the accused was not confused;

(viii) The facts were not disputed;

(ix) Following to that, exhibits as proof of the charge was tendered which corresponds with the facts of case tendered by the prosecution. The exhibits were shown to the accused and explained to him categorically and he admitted to those exhibits;

It is only after the accused had pleaded guilty to the charge containing the particulars of the offence without any qualification, his plea of guilty was accepted and recorded; the brief facts of case and exhibits tendered by the prosecution are accepted and admitted to the by the accused without any qualification, he was then convicted of the offences charged, pursuant to section 173 (b) of the CPC;

(xi) Before passing an appropriate sentence according to law, the accused was allowed an opportunity to put forward his plea in mitigation, which in actual fact is his plea to the court that he S/N 6z2DGu1t2UmbDsyiAwEBgg wishes to face a lenient sentence by the court. This is followed by the prosecution submitting on the aggravating factors to be considered by the court before it metes out an appropriate sentence according to law;

(xii) Finally, the court passed a sentence according to law, which has to be in accord with the punishment provided for in the law for the offences charged and settled judicial principles of sentencing applicable to the facts and circumstances of the case as well as the offences committed by the accused. [7] As he was not represented by counsel, before the court metes out an appropriate sentence according to law, the accused had advanced his plea in mitigation by himself, followed by submission on the aggravating factors by the Deputy Public Prosecutor (DPP) representing the prosecution. [8] The sentences meted out on the accused are the following:

As for the charge P2 in case no. WA-45SO-24-10/2024, for an offence under section 130JB(1)(a) of the PC, he was sentenced to one (1) year and six (6) months imprisonment. The period of imprisonment is to take effect from the date of his arrest on 23.6.2024. S/N 6z2DGu1t2UmbDsyiAwEBgg

(ii) As for the first charge P4 in case no. WA-45SO-23-10/2024 for an offence under section 130JB(1)(a) of the PC, he was sentenced also to a period of one (1) year and six (6) months imprisonment which is also to take effect from the date of arrest on 23.6.2024.

(iii) For the second charge P6 in case no. WA-45SO-23-10/2024, for an offence under section 130JB(1)(a) of the PC, he was sentenced also to a period of one (1) year and six (6) months imprisonment which is also to take effect from the date of arrest on 23.6.2024.

(iv) For the third charge P8, in case no. WA-45SO-23-10/2024 for an offence under section 130JB (1) (b) of the PC, the accused was also sentenced to a period of one (1) year and six (6) months imprisonment.

The sentences meted out are to run concurrently, thus he has to only serve a period of imprisonment of eighteen (18) months.

(vi) Aside that, all items and publications being subject matter of the charges against the accused, seized from him stands forfeited as they are items and publications connected to the S/N 6z2DGu1t2UmbDsyiAwEBgg terrorist group. The order of forfeiture is made pursuant to section 130JB (1) of the PC. [9] Being dissatisfied with the sentence meted out against the accused, the prosecution has chosen to appeal against it to the Court of Appeal. Hence this judgment. It has to be noted, although there are two (2) notices of appeal filed in respect of the two (2) different case numbers, but the content of the notices referring to the number of charges is not stated correctly. The correct enumeration which was also agreed to by the DPP is as alluded to above, and as per the minutes of this court on 19.12.2024, [10] Facts of the case tendered by the prosecution in support of the charges is only one (1) which is marked as P9 for clarity, particularising the offences committed by the accused, which has revealed that he was involved with the terrorist group IS. It is gazetted as a terrorist group pursuant to section 66B and 66D of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Act 613) vide Federal Government Gazette P.U. (A) 3011/2014 dated 12.11.2014. [11] Pursuant to the facts, the accused was arrested at his house and upon raid at the house, there were many items and publications found, which are all specified in the charges against him. S/N 6z2DGu1t2UmbDsyiAwEBgg [12] The penal provision, as applicable to the accused, which was contravened by him reads as: Section 130JB (1) (a) of the PC provides Whoever has possession of any item associated with the terrorist group shall be punished with imprisonment for a term not exceeding seven years, or with fine, and shall also be liable to forfeiture of any such item. Section 130JB (1) (b) of the PC provides Whoever provides any item associated with any terrorist group shall be punished with imprisonment for a term not exceeding seven years, or with fine, and shall also be liable to forfeiture of any such item. “item” pursuant to section 130JB (2) includes publications, visual recordings, … and any other thing displaying symbols associated with a terrorist group or ideology of a terrorist group. “publications” are to include all written, pictorial or printed matter … (emphasis is mine) [13] The items and publications found in possession of and provided by the accused are all confirmed by the expert criminologist that they are all associated with the terrorist group IS. The report and its S/N 6z2DGu1t2UmbDsyiAwEBgg content are tendered as exhibit P33, which was shown to the accused and the finding and conclusion arrived at by the expert was explained clearly to the accused, and he understood it. [14] Pivotal issue to the appeal lodged by the prosecution is, why did I only impose a sentence of imprisonment for a period of only one year six months (18 months) for all the offences charged. Is that sentence meted out grossly inadequate? I decided so, for the following reasons:

Foremost, the accused had pleaded guilty to the charges preferred for the offences he had committed. That per se reveals an admission of guilt on his part and that he is fully aware of his wrongdoing to be in possession of the items and providing an article associated with the terrorist group Islamic State (IS).

(ii) By the plea of guilty, he is remorseful. He had persistently cried when the video recording, P36 he was in possession with was screened on the epic big screen TV in open court. It could be because he feels for his association with the terrorist group and their intention. But all the same, he is deemed to be fully aware that he has committed a crime, thus facing the wrath of the law, leaving behind his loved ones at home to S/N 6z2DGu1t2UmbDsyiAwEBgg fend for themselves, when he is the sole breadwinner for them.

(iii) It can only be emphasised that the law stipulates if an accused person pleads guilty, he ought to be treated leniently and not harshly as he does not wish to pursue with the rigmarole of a lengthy trial where witnesses would be called to prove the offences he had committed and he has to endure cross-examining them with or without counsel. Therefore, the fact that he pleaded guilty, takes home the point that he does not wish to endure an open court trial, but to suffer the punishment provided for under the law, as he is fully aware he had committed a crime for which he has to be punished appropriately. But of course, if the offences committed are serious in nature, he may have to face the crushing effect of the punishment provided for under the law, albeit him pleading guilty.

(iv) For the record, the offences he had committed carries a maximum punishment not exceeding seven (7) years imprisonment, which according to section 52B of the PC is not a serious offence, as it is not an offence punishable with imprisonment for a term of ten (10) years or more. S/N 6z2DGu1t2UmbDsyiAwEBgg

The accused in the present case, is a first offender without any past or previous convictions or antecedents for the court to contend with when punishing him.

(vi) It is a fact that he was caught to be in possession of the items and publications and also providing them which are altogether associated with the terrorist group IS.

(vii) He has told the court that the items found with him could be obtained or procured via the online sale platform Shoppe. Thus, it is easily available by the public at large.

(viii) But of course, it is a crime for him to have acquired it and kept it in his possession, for which he was arrested and prosecuted as he is deemed inclined towards the ideology propagated by the said terrorist group IS, for which he has to be punished, as the law pursuant to section 130JB of the PC prohibits such possession or providing it.

(ix) The decision-making process by this court when assessing the seriousness of the offences committed by the accused entails firstly to evaluate and determine the culpability of the accused person and the harm caused or intended, by reference only to the facts set out by the prosecution to support the preferred charges against him in this plea of guilty S/N 6z2DGu1t2UmbDsyiAwEBgg proceeding. It has to be iterated that content of the facts of case are accordingly essayed in terms of the principal factual ingredients of the offences charged to elucidate to this court as to the mode and manner by which the offences are committed by the accused.

Perusing the facts of case as provided by the prosecution only goes to show that the accused was merely in passive possession of the contraband items and also having provided it.

(xi) Although, the sentence to be passed against him has to be deterrent by its effect on him and would be offenders who wish to try such crime, but the maximum period of seven (7) years imprisonment ought to be only reserved for the habitual offender and not for a first offender like the accused person.

(xii) The items, publications and materials found with him has been forfeited, so that it shall not be in circulation anymore. But again, detecting and preventing it from circulation, has to be the arduous task of the enforcement agency responsible. For offences of this nature, as committed by the accused person, the primary aim of sentencing has to be rehabilitation. That is key and the mainstay, as if the enforcement is biting vide S/N 6z2DGu1t2UmbDsyiAwEBgg detection and prevention of distribution and circulation of such items before it goes into possession of the Malaysian populace, offences under section 130JB could be prevented. This court is in a position to incarcerate him for a period of time, but there is no guarantee he would not reoffend and be a recidivist. On the other hand, imposing a longer period of imprisonment does not at all deter such activities as the core is still rehabilitating individuals like the accused person from being swayed by the propagation of the terrorist group like the IS. Moreover, crimes of this nature pertain ideology, for which there has to be appropriate works by our correctional system to rehabilitate him and reengineer or refocus his thoughts so that he is not further steered or swayed by the terrorist groups’ propagation. All the same, even a shorter period of imprisonment does not reflect that he has committed a less serious crime, as even a day of imprisonment for the accused strips him off his liberty and freedom, also leaving a void in his family who has to rely on him solely for food, shelter and clothing. As the accused was only in passive possession of the items and publications associated with the IS group, and providing it, apparently, he is inclined towards it, may be S/N 6z2DGu1t2UmbDsyiAwEBgg because he wishes to know more of it, but as it relates to acts of terrorism, it has to be nipped at the bud.

(xiii) Thus, for offences of this kind, I am of the view even if deterrence is a prerequisite, to deter would-be or like-minded offenders to try such crimes, but rehabilitation shall be the resolve, in order to steer him away from such ideology. Therefore, even after he is released from prison the relevant enforcement agency via its methods and means has to monitor him so that he does not reconnect himself to the thoughts of the terrorist group.

(xiv) The rehabilitative aim seeks to encourage the accused to be law abiding and responsible in future and to move away from association with the terrorist group IS.

(xv) The accused has admitted in court that he is given lessons and studies for him to stay clear from such ideology, which this court finds it to be a pathway for him not to reoffend. He has also promised to the court that he would not reoffend and pursue his life thereon in the correct path. His promise to the court, gives hope that he would thereon change his attitude and respect laws and regulations existing in society.

(xvi) While reducing reoffending is a salutary and beneficial aim, an effective sentence meted out by this court must also serve to S/N 6z2DGu1t2UmbDsyiAwEBgg communicate to the society at large, that justice has been done; wrongdoing has been condemned; and ultimately the accused person has been held accountable for the crime he has committed.

(xvii) Thus, the length of imprisonment for a period of 1 year 6 months is not grossly inadequate but proportional to the crime committed by the accused and the circumstance in which he had committed it. [15] On the mode of enforcement of the sentence which is take effect concurrently and with effect from the date of arrest of the accused is justified by section 282 (d) of the CPC, wherein this court passing the sentence may direct so. On the concurrent mode of the sentence, the justification is that although there are multiple offences, but it is of a similar nature, premised on the same provision of the law which is section 130JB (1) of the PC. Therefore, premised on the one-transaction principle, where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive. The rationale behind this principle is that when all the offences taken together constitute a single invasion of the same legally protected interest – the offences are in sync with the S/N 6z2DGu1t2UmbDsyiAwEBgg conditions on proximity of time; unity or proximity of place; continuity of action; and continuity of purpose or design. (See the Privy Council case of Amrita Lal Hazra 42 Cal. 957). The mode of enforcement of the sentence meted out was not alienated from the position to be taken by the prosecution, whom via its DPP has agreed to it. Accused ordered to serve eighteen (18) months imprisonment. Dated 7 April 2025 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur. Parties DPP Nur Ainaa binti Ridzwan appearing for and on behalf of the Public Prosecutor. Accused in person. S/N 6z2DGu1t2UmbDsyiAwEBgg