provides, displays, distributes or sells, any item asscosiates with any terrorist group or the commission of a terrorist act 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. [35] Meanwhile ‘item’ under sub (2) are as follows; “(2) In this section- “item” includes publications, visual recordings, flags, banners, emblems, insignia and any other thing displaying symbols associated with a terrorist group, terrorist act or ideology of a terrorist group;” [36] Seksyen 130JB (2) provides ‘item’ as: “(2) In this section- ‘Item’ includes publications, visual recordings, flags, banners, emblems, insignia and any other thing displaying symbols associated with a terrorist group, terrorist act or ideology of a terrorist group; ‘publication’ includes all written, pictorial or printed matter, and everthing of a nature similar to written or printed matter, whether or 23 not containing any visible representation, or by its form, shape or in any other manner capable of suggensting words or ideas, or an audio recording and every copy, translation and reproduction or substantial translation or reproduction in part or in whole thereof. [37] As regard to confession, Prosecution put forward a statement from the accused persuant to section 18A [P20] which was given to PW6. This court satisfies on voluntariness of the accused in making written confession was without any promise, threat or deceit. There was deletion on P20 suggesting the accused was not agreeing with the statement, and therefore was deleted by PW6. In other words, any statements which was not deleted were agreed by the accused. The accused was free and not deprived from making corrections on any statement if he was not agreeing to it before he signed P20. [38] The most evident photograph among all showing the accused’s inclination towards IS are in P31 and P31A. Those were found on File Location 144177158382.jpg where accused name “RAZIS” was written from live bullets, 3 firearms, 2 sub machine gun and a semi automatic pistol. Thre were also 8 other photographs except 24 photgoraphs in last 5 pages, of terrorist group of Islamic State holding firearms in an army uniform. Prima facie established [39] Having made these observation this court was satisfied that from expert evidence of PW8 and PW9, that the accused by giving bai’ah in the telegram was in fact giving loyalty oath as member and also from evidence of protected witness PW4 that the accused was a member of the group. This was made clear from the telephone registration under the accused’s name [PW3 and PW4] and the Acer laptop and Oppo handphone seized by PW1 in the accused home. [40] Issues raised by accused in written submission at the end of prosecution stage are as below: i) Possession of the laptop [P5] and Oppo Handphone [P7]. This court answers: Let us have a look at the accused statement under s 18A [P20]. It is clear that the accused not only confessed to it but also the telephone was registed under his name and telegram application using the same number. The accused also failed to challenge in cross examination of the 25 complainant PW1 on the seizure of both items which were found in the accused possession. ii) Accused failed to call his wife The court answers: Accused’s wife was offered to the defence at the close of prosecution case. The Prosecution will not necessarily call all their witnesses. The Prosecution cannot be said to withhold or supress evidence if that witness does not make any effect to the prosecution case if he was not called to give evidence. In fact, there was overwhelming evidence that the lap top [P5] and handphone [P7] were the accused’s. In Jamaludin Md Kassin v PP [2010] 9 CLJ 377, it was in similar fact, where the witness was not material to the prosecution and D/Coperal Ravidass was offered to the defence at the end of prosecution case. iii) Whether accused was the one who uploaded a comment in ‘gagak hitam’ group The court answers: The Protected witness evidence PW4 on the issue of telephone number 017-9833634 and ‘RAZIS AWANG DI’ was supported by the expert evidence PW8 and PW9, and also 26 evidence of celcom officer PW4. These evidence were strong and the cross examination of these witnesses failed to cast doubt on their reliability. iv) Why PW4 was given status of protected witness The court answers: As stated above, this court has conducted an inquiry in ‘camera’ pursuant to s.14 SOSMA and after this court satisfaction on security of this protected witness and his secrecy, the prosecution’s application was granted. In other word this court knew more on his security and secrecy in the inquiry held, before it decides to grant the status of protected witness. This court found no reason to believe that PW4 has created evidence to implicate the accused as he only knew the accused in the website. [see PP v Mohamed Ali [1962] 1 MLJ 257 where the evidence of a police was accepted unless there was obvious contradictions] v) whether ‘means rea’ proven on ‘bai’ah’ as his intention to support terrorist group, as in first charge. The court answers: It was proven that on 30.03.2018 at 8.11 a.m the accused has made loyalty oath supporting “Ikhwah Daulah Islamiah” as this could be seen on P18. Further, the accused name 27 “Razis Awang Di” did refer to Daulah Islamiah. Expert evidence of PW7 and PW9 saying that it is a support for IS in Syria and Iraq when in bai’ah the words of “Abu Bakar al-Baghdadi” who is an IS group leader, was used. PW8 gave evidence on the implication when a person has taken bai’ah as what the accused done, his intention and purpose. He also gave evidence on the implications if someone broke the oath and its punsishment in this world and hereafter. An offence under s.130J (2) of Penal Code the meaning of ‘sokongan’ [support] towards terrorist group was the evidence against the accused. It was by way he took the ‘bai’ah’ as he was not just by saying ‘saya berbai’ah’ or ‘saya menyokong’ but the way of using the words as stated. Moreover, accused name ’Razis’ was inserted and not just a ‘copy paste’. vi] 9 photographs and accused confession in P20 The court answers: Recording officer of the accused statement P20 was PW6. He was not involved in the investigation and he only recorded what the accused said without knowing whether it was true or not. Therefore, any question by defence counsel intended to make PW6 confused, was not to dispute the content of the statement that 28 was given under s 18A to PW6. There was no reason for this court to disbelieve PW6. Since the charge against the accused was tried according to a procedure under SOSMA, and therefore as provided under s.17 and s.18 of SOSMA, written statement from the accused was admitted in evidence. Two cases of Noor Aishah and Jusninawati as refered above has discussed on wording in s.17 and s.18 ‘any statement by the accused’, ‘to any person’ and ‘shall be admissible’. S.17 SOSMA clearly stated this, even though contradicted with Evidence Act, but is valid under s 18A. Accused was called to enter his defence on both charges based on maximum evaluation under s.180 Criminal Procedure Code [41] Based on celebrated decided cases on prima facie, the prosecution burden and maximum evaluation by the court with refence to s.180 CPC, this court decided that the prosecution has successfully proved on prima facie for both charges and by that this court called the accused to enter his defence. Among cases referred on prima facie are Balachandran v PP [2005] 2 MLJ 301 and PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457. 29 ACCUSED DEFENCE Defence on First Charge [42] Accused admitted that he joined Gagak Hitam telegram group to get first hand information on what happened in Syria. According to the accused, there were members of the group stayed in Syria. He also admitted that he got acquainted with Akhi Wandy on facebook. [43] He further admitted giving his telephone number 017-9833634 to Akhi Wandy for him to be added in Gagak Hitam telegram group. However, he admitted taken bai’ah in Gagak Hitam group just for him to be in the group, and if he did not take bai’ah he would be removed from the group. He nevertheless denied giving support to Islamic State Terrorist Group. [44] The Accused could recognise persons in the photographs as his facebook acquaintances. In other words, defence of ‘good faith’ being a member of terrorist group was only a bare denial to the charge of ‘supporting’. The accused himself admitted voluntarily taking oath in order to know the latest information in Syria through the group, and 30 he has to keep himself as a member of the group by taking bai’ah, but without his intention to support it. [45] The Federal Court per Raja Azlan Shah (as HRH then was) in DA Duncan v PP [1980] 2 MLJ 195, comparing prima facie which has been proved by the prosecution and the defence of bare denial observed; “Now this evidence, if accepted and believed, is clearly sufficient to establish a prima facie case against the appellant. The High Court at Alor Star accepted it and called on the defence. The defence was, in effect, a simple denial of the evidence connecting the appellant with the four boxes. We cannot see any plausible ground for saying that the four boxes were not his. In the circumstances of the prosecution evidence, the High Court came, in our view, to the correct conclusion that this denial did not cast a doubt on the prosecution case against the appellant.” Accused defence on second charge [46] In giving his evidence, the accused admitted that he has in possession 9 photographs [P31A-Last 5 Pages] where 6 photographs 31 were in his hand phone [ handphone P7] and 3 other photographs in his laptop [P5]. [47] On top of that the accused also could name persons in the photographs as his facebook acquintaces. He knew persons in Photograps No.2 till No. 6 and identified the person holding firearms sitting at no.4 as Abu Afigan. He also knew persons in photograps no 6 called Ustaz Loffi and he admitted following their facebook and they are Malaysian. [48] As far as Photograph No.1 is concern, which depicted a firearms AK47 and a ‘side arm semi auto’ and an ammunition taking shape of the accused name, below are his defence when asked by his counsel: “Soalan: Gambar No. 1 tahu apa. Jawapan: Saya tahu. Saya dapat gambar No.1 ni ada dalam posting oleh Akhi Wandi yang kata sesiapa yang hendak ukir namanya menggunakan peluru sila komen, dia akan ukir dan hantar. Dia buat dan saya lihat sudah siap gambar ada nama saya , saya simpan secara peribadi, saya download sendiri bukan auto download.” 32 [49] Semasa disoal balas akan gambar No.1 ini tertuduh mengakui mengenali bendera tersebut adalah dari Kumpulan IS: “Soalan; Gambar-gambar dirujuk, P31A(No.1) ada sejarah apa dan dari segi apa gambar ini. Jawapan: Bendera latar belakang pernah berlaku di Syria Kumpulan Penganas di Syaria, logo saya tahu bendera Kumpulan IS. Di bawah ada tulisan nama saya, nama di tulis oleh rakyat Malaysia yang ada dengan Kumpulan IS.” [50] As to Photgraph no. 7 till no, 9 as refered to in the second charge which was kept in his Acer laptop [P5], the accused admitted that the laptop was his and was used in his work as a School Counselor but on the other hand, he said he knew persons in photograph 7, 8 and 9 through their facebook. [51] According to the accused, he kept these three photgraph as in memorizing history of Rashid Myidin of Parti Komunis or Tok Janggut, a Malay Worrior against the English invader. Nothing in his defence about these worriors but he kept the 3 IS fighter photographs 33 anyway. The other photographs were his personal photographs in Malaysia. [52] The accused said he has no wrongful intention in possessing 9 photographs which refered to IS, as there were thousands photgraphs in his laptop. [53] The accused also put forward that these 9 photographs were used to motivate his students as he was a counselling teacher. This reason actually may have feared as teachers would have influenced students with those photgraphs. As for example photgraph P13A where the name RAZIS formed by firearms and ammunition, could it be accepted as an item used by conseling teacher? DW2, witness for the accused was his colleagues in the same school [54] DW2, a counseling teacher Nazirah binti Ali 44, from SMK Kulim, Kedah, has been working with the accused since 2010. She was a senior counseling teacher in the school. The accused was among the three conseling teachers of the school and incharged of form 1 to form 5 students, and students hostel. 34 [55] DW2 in giving evidence said that the accused neither discussed with her about IS group nor on photographs which were said used as items in counseling for students’ motivation programs, talks or workshop. She herself never involve in Gagak Hitam group or any other terrorist groups. [56] DW2 evidence proved that photographs of terrorist were never be used by counseling teacher for their students. DW2 also never know about the accused has joined any group and has taken any oath to any group. The accused never discuss or inform her about it. Accused intention can be proved directly or by operation of law of strict liability [57] This court has admitted the accused statement in P20 under s 18A SOSMA. Accused submission of no ‘voir dire’ conducted was an attempt to ignore s 18A which clearly prevailed over Evidence Act 1950. [58] Provision under SOSMA was not withstanding Evidence Act 1950. It can be seen through the defence where the accused admits almost 35 entire statement in P20 but his counsel still submitted that it was a fabricated evidence by PW6 anyway. [59] For example, it can be seen in page 10 [of P20]: “Pada awal Jun 2016 antara jam 1600 – 1700 semasa berada di rumah sambil menonton tv di alamat No; 159, Lorong Senangin 2/3 Taman Senangin 09000 Kulim, Kedah apabila saya membuka dan melihat telefon jenis OPPO no. telefon 017-9833634, saya dapati Wandy telah add saya dalam group aplikasi group aplikasi Telegram Amanah vs Pas. Tujuan saya menyertai grup tersebut aplikasi Telegram Amanah vs Pas ialah untuk mendapat info-info semasa di Syria secara terus dan menyalurkan infaq kepada Wandy”. [60] This was consistent with the accused defence. If PW6 fabricates P20, he can change it to “untuk menyokong kumpulan pengganas IS di Syria.” yet PW6 maintained the accused statement in P20 as per his defence “Tujuan saya menyertai grup tersebut ….untuk mendapat info-info semasa di Syria”. [61] In cross examination, when refered to him, the accused admitted has 36 taken oath in P18 which was previously refered to in prosecution case. Beside, he also gave reasons why he took the oath [berbai’ah]; “saya rasa saya perlu buat berbai’ah, pertamanya, saya melihat ada orang di ‘remove’ sebab tidak berbai’ah, kesedaran saya untuk berbai’ah jika tidak buat bai’ah, saya akan di ‘remove’ jadi saya jika di remove tidak akan akses.” [62] It is clear that he took bai’ah because he wanted to remain in the “gagak hitam ‘group. He however denies understand the bai’ah and said he only ‘cut and paste’ by changing it to his name. [63] Having heard the accused academic background, his job as a teacher and he is a muslim, it should not have given rise to the reflection that he did not understand the wording in the bai’ah. Moreover, if the accused is a married man and has uttered ‘lafaz taklik’ he should understand the bai’ah wordings. No need to be an ulamak (knowledgable religious muslim) to understand the bai’ah wordings. What was in the bai’ah used by the accused has a strong meaning and terrifying. Not an ordinary member would take the loyalty oath, unless he was obsessed to the group. That was why he 37 stated many of the members were removed because failed to take the pledge. [64] With that strong words using the name of ‘Allah’ and acussed said he was only to know latest information in Syria, definitely accused would not dare to deny his pledge and allow Allah’s curse on him. This court decides that accused defence failed to cast reasonable doubt on prosecution case on both charges [65] A guideline in Mohamad Radhi Yaakob v PP [1991] 1 CLJ Rep 311 Supreme Court at page 315 held; “we are of the view that whanever a criminal case is decided on the basis of the truth of the prosecution case as against the falsity of the defence story, a trial judge must in accordance with principle laid down in Mat v PP[1963] 1 LNs 82 go one step further vefore convicting the accused by giving due consideration as to why the defence story though could not be believed did not raise a reasonable doubt on the prosecution case. Thus, even though a Judge does not accept or believe the accsed explaination, the accused must not be convicted until the Court is satisfied for sufficient reason that such 38 explaination does not cast a reasonable doubt on the prosecution case….” [66] This court did not believe his defence and found that it did not raise a reasonable doubt on the prosecution case that he was aware of the pledge and at the same wave voluntarily took loyalty oath just because to be updated with the news of the IS group in Syria. He actually admitted asking Akhi Wandi to form his name with firearms as shown in one photograph and the rest 8 photograph were of his facebook acquaintences. Hence, these are not only a bare photograph of no relation or connection with the movement which he joined. [67] This court decided on the first charge, since the accused chose to stay as member by way of taking loyalty oath using the strong wording and ready for any risk, for sure he has a clear intention to support towards Islamic State group enthusiasm. [68] The accused defence on the first charge did not cast reasonable doubt that he has no intention to support since the words used in the 39 oath states ‘perjuangan’ and ‘tidak berkhianat kepada Ikhwan Ansar Daulah Islamiah di manapun berada’. [69] His excuse was to get information on terrorist member of IS by itself showing his intention to support IS group. If he did not have any intention to support he actually can follow any website as normal website browser for loads of information. [70] For the second charge, this court decided that the accused failed to cast reasonable doubt on the prosecution case as in his defence he admits that he knew names of persons in photograph no. 2 until no.