Jusninawati binti Abdul Ghani v Pendakwa Raya (05-275-11/201(W))

That the appellant had reasons to believe that a terrorist act would be committed;

(ii) That she had omitted to give that information in respect of the section 130JA offence; and

(iii) That she was legally bound to give information in respect of the section 130JA offence. [11] The learned JC held that the prosecution had adduced credible evidence to prove that the appellant had reasons to believe that a terrorist act would be committed. In point of fact, “Abu Kedah” had gone to Syria in December 2015 after divorcing his wife and was killed in battle in April 2016. The learned JC had accepted the evidence of the investigating officer (“SP4”) that the appellant had failed to transmit the information given to her by SP1. As for the third element, the learned JC had referred to section 13(1)(a) of the Criminal Procedure Code (“CPC”), section 3(3) and section 20(3) of the Police Act 1967 (Revised 1988) and held that the appellant, as a trained police personnel, was legally bound to collect information on terrorist group, process it and hand it over to the authorities. [12] When called upon to enter her defence, the appellant elected to give an unsworn statement from the dock and did not call any witness. In a nutshell, the appellant had denied the charge against her and explained that she did not report the information received because she regarded the information as “empty talk” since it was not easy to enter Syria and it would incur substantial costs. [13] Having considered the appellant’s unsworn statement, the learned JC found that her explanation did not raise any reasonable doubt in the prosecution’s case. The appellant’s explanation was rejected by the learned JC and His Lordship was of the view that the appellant, who was a trained police personnel, had no excuse at all not to report the information received. The learned JC was of the opinion that the issue about the difficulty of travelling to Syria did not arise as the appellant was in communication with several “Daesh” militant members who were already there. Findings Of The Court of Appeal [14] Being aggrieved with the decision, the appellant filed an appeal to the Court of Appeal. Eleven (11) grounds of appeal were raised by the appellant in assailing the learned JC’s decision but the focus of counsel’s argument was on the following issues:

That in the circumstances of the case, the appellant could not have had reasons to believe or the knowledge that a terrorist act would be committed;

(ii) That the appellant had no legal obligation to give information under section 13(1)(a) of the CPC, relating to the commission of the offence punishable under section 130JA of the PC because section 13(1)(a) of the CPC makes no reference to section 130JA of the PC; and

(iii) That presumption of adverse inference under section 114(g) of the Evidence Act 1950 should have been invoked against the prosecution for failing to adduce forensic reports and/or digital evidence that points to a possibility of Facebook and/Telegram networking ties that the appellant has with the “Daesh” militant members. [15] The Court of Appeal had unanimously dismissed the appellant’s appeal and affirmed the conviction and sentence. In arriving at its findings, the Court of Appeal held that the learned JC had duly complied with the procedural requirement of subjecting the prosecution’s evidence to a maximum evaluation based largely on the credibility and reliability of witnesses. In the circumstances of the case, the Court of Appeal found that the appellant must have had “reasons to believe” that a terrorist act would be committed. The Court of Appeal went further to hold that the non-production of the forensic reports and / or digital evidence was not by itself fatal for the prosecution case nor had it created any suspicion about the truthfulness of the version given by the prosecution witnesses. [16] In respect of issue (ii), the Court of Appeal found that the learned JC had erred in law in his reliance on section 13(1)(a) of the CPC because the offence of travelling to a foreign country for the commission of terrorist acts under section 130JA of the PC was not one of those listed in subsection 1(a). However, the Court of Appeal held that the said error was not fatal because there are other statutes i.e. section 3(3) and section 20(3) of the Police Act 1967, and section 103 and 104 of the CPC which imposed a legal duty upon the appellant to report the information received. The Appeal [17] The sole issue for determination before this Court was whether the appellant was legally bound to furnish the information concerned? [19] To bring home the charge against the appellant, she must be shown to be legally bound to furnish information. “Legally bound” is defined in section 43 of the PC as follows: “43 ‘Illegal’, ‘unlawful’ and ‘legally bound to do’ The word ‘illegal’ or ‘unlawful’ is applicable to everything which is an offence, or which is prohibited by law, or which furnishes ground for civil action. And in respect of the word ‘illegal’, a person is said to be ‘legally bound to do’ whatever it is illegal in him to omit.” [20] We referred to Dr Hari Singh Gour’s comment in his book Penal Law of India, 9th ed., (1972) at p.231: “The test to see whether a person is “legally bound” to give information to do anything else is not whether he is enjoined by the law to give such information or to do such thing but to see whether the omission to do so would be “illegal” within the meaning of s.43, i.e., is an offence under the Code, or is prohibited by law or is such as to give rise to a cause of action for a civil action. Thus the test is a negative one.” [21] The above proposition was cited with approval by Ian Chin J in Chiew Poh Kiong v Public Prosecutor [2001] 4 CLJ 249. Applying the above test, it was contended by learned counsel for the appellant that it was not illegal for the appellant to omit to report the information received to her superior because section 13(1)(a) of the CPC only requires a person to furnish information in respect of offences specifically mentioned therein. Section 13(1)(a) reads as follows: “13. Public to give information of certain matters.

Every person aware:

of the commission of or the intention of any other person to commit any offence punishable under the following sections of the Penal Code: 121, 121A, 121B, 121C, 122, 123, 124, 125, 126, 130, 143, 144, 145, 147, 148, 302, 304, 307, 308, 363, 364, 365, 366, 367, 368, 369, 372, 372A, 372B, 376, 376B, 377C, 377CA, 377E, 382, 384, 385, 386, 387, 388, 389, 392, 393, 394, 395, 396, 397, 399, 402, 435, 436, 449, 450, 456, 457, 458, 459 and 460; or

… shall in the absence of reasonable excuse, the burden of proving which shall lie upon the person so aware, immediately give information to the officer in charge of the nearest police station or to a police officer or the nearest penghulu of the commission or intention or of the sudden, unnatural or violent death or of the finding of the dead body, as the case may be.” [22] At this juncture, it is pertinent to note that the provision has been amended by the Criminal Procedure Code (Amendment) Act 2016 (Act 1521) which came into force on 23.12.2016. The new section 13(1)(a) reads as follows: “13. Public to give information of certain matters.

Every person aware:

of the commission of or the intention of any other person to commit any offence punishable under the Penal Code or any other written law;

… shall in the absence of reasonable excuse, the burden of proving which shall lie upon the person so aware, immediately give information to the officer in charge of the nearest police station or to a police officer or the nearest penghulu of the commission or intention or of the sudden, unnatural or violent death or of the finding of the dead body, as the case may be.” [23] The appellant was alleged to have committed the offence prior to the effective date of the new provision i.e. on 23.12.2016. It is trite that the new section 13(1)(a), which is in the form of substantive law does not apply retrospectively (see Dalip Bhagwan Singh v. PP [1997] 4 CLJ 645). In our view, the new provision of section 13(1)(a) of the CPC which casts a duty on the public to give information about the commission of an offence punishable under the Penal Code or any other written law, is inapplicable to the case against the appellant. [24] The old section 13(1)(a) of the CPC corresponds with section 39 of the Indian Criminal Procedure Code 1973 (“CrPC”) which reads as follows: “39. Public to give information of certain offences

Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code, (45 of 1860 ), namely:-

sections 121 to 126, both inclusive, and section 130 (that is to say, offences against the State specified in Chapter VI of the said Code);

(ii) sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquillity specified in Chapter VIII of the said Code);

(iii) sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification);

(iv) sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc.);

sections 302, 303 and 304 (that is to say, offences affecting life); (va) section 364A (that is to say, offence relating to kidnapping for ransom, etc.);

(vi) section 382 (that is to say, offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft);

(vii) sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and dacoity);

(viii) section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.);

(ix) sections 431 to 439, both inclusive (that is to say, offences of mischief against property);

sections 449 and 450 (that is to say, office of house-trespass);

(xi) sections 456 to 460, both inclusive (that is to say, offences of lurking house-trespass); and

(xii) sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes) shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.” [25] The Mumbai High Court in the case of Dr Satyasaheel Nandlal Naik v State of Maharashtra [1996] Cr.L.J. 1463, had occasion to consider the issue whether a doctor was obliged to inform the police when he had treated a patient who died in a motor vehicle accident due to rash and negligent driving, which offences were punishable under section 279, 337, 338 or 304A of the Indian Penal Code (“IPC”). The Court held that there was no statutory obligation on a citizen to inform the police about the commissions of other offences that were not mentioned in section 39 of the CrPC. Therefore, the prosecution against the doctor for failure to inform about the accident to the police could not stand. [26] In the same vein, the Andhra Pradesh High Court in the matter of Akhabaruddin Owaisi v The Government of Andhra Pradesh [2014] Cr.l.J. 2199 held as follows: “26. Every citizen who has knowledge of the commission of cognizable offence has the duty to lay the information before the police under Section 39 Cr.P.C, (State of Gujarat v. Anirudhsing [1997] 6 SCC 514), which obligates every person, who is aware of the commission of the offences mentioned in that Section, to give information to the nearest Magistrate or Police Officer. There is no statutory obligation on a citizen to inform the police about offences other than those mentioned in Section 39 Cr.P.C, (Dr. Satyasaheel Nandlal Naik v State of Maharashtra [1996] Cri.l.J. 1463), as it merely casts a duty and an obligation to report offences mentioned therein, omission to discharge which is made penal. The said Section has been designed with the purpose of securing information relating to the commission of an offence with all expedition so that investigation should ensue. Once the information, relating to the commission of the offence has actually reached the Police Station the requirements of Section 39 Cr.P.C. are fully satisfied. Every eye-witness or every person who is in the know of the circumstances relating to an offence is not expected, thereafter, to go to the Police Station to give a report of what he saw. (State of Maharashtra v Dashrath Lahanu Kadu [1972] (45) Bombay Law Reporter 450).” [27] So too here. The old section 13(1)(a) of the CPC imposes a duty on every person, including the appellant, who is aware of the commission of the offence enumerated in that section, to give information to the nearest police station or police officer or penghulu. Once there is an omission, such persons become criminally liable. Certain offences are mentioned in section 13(1)(a) of the CPC, but it does not refer to the offence of travelling to a foreign country to commit terrorist acts under section 130JA of the PC, with which we are concerned here. Thus, the appellant was not obliged to report the information concerned. [28] It is a well-established principle of statutory interpretation that Parliament is not presumed to have intended to limit or interfere with the personal liberty of a citizen, unless it indicates this intention in clear, unmistakable and unambiguous terms. It is trite that criminal and penal statutes must be strictly construed, that is, they cannot be enlarged or extended by intendment, implication, or by any equitable considerations. In other words, the language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose for which the statute was enacted. Therefore, no act or omission is to be deemed criminal unless it is clearly made so by words of the statute concerned (see Maxwell on Interpretation of Statutes, 12th Ed., at pp 239 – 240 and Craies on Statute Law, 7th Ed., at p.529). [29] In our considered view, unless the contrary intention appears, Parliament could not have intended under the old section 13(1)(a) of the CPC to impose a legal obligation on persons to furnish information in respect of the possible commission of section 130JA offence. On that score, we were in agreement with the Court of Appeal that the learned JC had erred in his reliance on the old section 13(1)(a) of the CPC. In the light of above discussion, it was our considered view that the prosecution of the appellant for non-reporting the possible commission of section 130JA offence by SP1 and “Abu Kedah”, under section 130M of the Penal Code was unsustainable in law. [30] Learned DPP vehemently argued that there are other statutes that impose legal obligation on the appellant to furnish information e.g. section 3(3) and section 20(3) of the Police Act 1967 which read: “3. Constitution of the Police Force.

…

…

The Force shall subject to this Act be employed in and throughout Malaysia (including the territorial waters thereof) for the maintenance of law and order, the preservation of the peace and security of Malaysia, the prevention and detection of crime, the apprehension and prosecution of offenders and the collection of security intelligence.” “20. General duties of police officer.

Every police officer shall perform such duties and exercise such powers as are by law imposed or conferred upon a police officer, and shall obey all lawful directions in respect of the execution of his offence which he may from time to time receive from his superior officers in the Force.

…

Without prejudice to the generality of the foregoing provisions or any other law, it shall be the duty of a police officer to carry out the purposes mentioned in subsection 3(3); and he may take such lawful measures and do such lawful acts as may be necessary in connection therewith, including –

apprehending all persons whom he is by law authorised to apprehend;

processing security intelligence;

– (m)” [31] In support of her submission, learned DPP cited the following passage of the Court of Appeal’s grounds of judgment: “[14] Pada pandangan kami perayu telah dengan sengaja tidak memaklumkan pegawai atasannya mengenai maklumat yang diadukan dalam pertuduhan berkenaan. Harus dicatatkan juga bahawa perayu pernah ditegur dan dinasihatkan oleh pegawai atasan polis dahulu supaya tidak melibatkan diri dengan hal-hal yang berkaitan IS. Perayu semesti dan seharusnya menyedari seriusnya perkara yang ditegur itu dan betapa pentingnya maklumat yang diterima dan diketahuinya itu dalam konteks tanggungjawab tersebut. Sebagai anggota polis dan selaras dengan tanggungjawab yang dikenakan kepada semua anggota polis di bawah s. 3(3), s. 20(1) dan (3), Akta Polis 1967 dan s. 103/104 KPJ, perayu dengan jelas terikat dengan perundangan statutori itu untuk memaklumkan maklumat berkenaan yang ternyata terjatuh dalam jaringan s. 130JA kepada pihak atasannya. Kami dengan itu menolak hujahan peguam tentang isu ini.” [32] With the greatest respect, the Court of Appeal was wrong in affirming the decision of the learned JC. It must be borne in mind that the definition of “legally bound”, as we had alluded to earlier in this judgment, is a negative test and the word “illegal” is applicable to everything which is an offence or which is prohibited by law or which furnishes ground for a civil action. In this instant appeal case, the prosecution adduced no evidence concerning the appellant’s scope of work. There was also no evidence on record to show that the appellant was directed to gather intelligence on terrorist related activities and to transmit the same to her superiors. In our considered view, the appellant was charged and convicted of an offence not known to law. Conclusion [33] For the foregoing reasons, we were of the opinion that the Court of Appeal had committed a serious error of law warranting appellate intervention. We were firmly of the view that the conviction against the appellant was wrong and unsustainable in law and must be quashed. We, therefore, allowed the appellant’s appeal and set aside the conviction and sentence imposed. Consequently, the appellant was acquitted and discharged forthwith. So ordered. Dated: 18th October 2019 sgd. (MOHD ZAWAWI SALLEH) Judge Federal Court of Malaysia Counsel for the Appellant: Farida binti Mohammad Messrs. Farida & Company Advocates & Solicitors C06-1, Pusat Perdagangan Taman Dagang Jalan Dagang Besar 68000 Ampang Selangor Darul Ehsan Counsel for the Respondent: Faizah binti Mohd Salleh Deputy Public Prosecutor The Attorney General’s Chambers Appellate and Trial Division 62100 Putrajaya.