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(a) incites or promotes the commission of a terrorist act; 7
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Court of Appeal of Malaysia22 Aug 2019W-05(SH)-140-03/2019
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“a of guilty to the charge after having understood the nature of the charge and the consequences of the said plea. [12] In the premises, as correctly submitted by the learned DPP, section 305 of the Criminal Procedure Code applies. The section provides that where accused person has pleaded guilty and has been convicted,”
“USOF, JCA MOHAMAD ZABIDIN MOHD DIAH, JCA RAVINTHRAN PARAMAGURU, JCA 2 Judgment of the Court [1] The appellant was charged with committing a terrorism related offence under section 130G (a) of the Penal Code in the High Court. He pleaded guilty and was sentenced to seven years imprisonment from date of arrest. He has ap”
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1 IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. W-05(SH)-140-03/2019 BETWEEN MASNI BIN YUSOFF … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT (In the High Court of Kuala Lumpur Criminal Trial No: WA-45SO-26-11/2018 Between Masni bin Yusoff And Public Prosecutor) CORAM: ZABARIAH MOHD YUSOF, JCA MOHAMAD ZABIDIN MOHD DIAH, JCA RAVINTHRAN PARAMAGURU, JCA 2 Judgment of the Court [1] The appellant was charged with committing a terrorism related offence under section 130G (a) of the Penal Code in the High Court. He pleaded guilty and was sentenced to seven years imprisonment from date of arrest. He has appealed against the conviction and sentence to this court. Background facts [2] The charge preferred against the appellant in the High Court read as follows: Bahawa kamu di antara 1 April 2018 sehingga 16 Jun 2018 di No. 340-1, Kg Pari Bakar Tengah, Jalan Temenggong Ahmad, dalam Daerah Muar, dalam Negeri Johor Darul Ta’zim, dengan pengetahuan telah menggalakkan perbuatan keganasan melalui aplikasi Facebook menggunakan nama akaun “Ah Cong (https://www.facebook.com/ yusoff.almalayzie) yang merupakan satu kesalahan di bawah Seksyen 130G(a) Kanun Keseksaan dan boleh dihukum di bawah peruntukan yang sama. [3] The salient points of the brief facts tendered by the prosecution that was admitted by the appellant without reservation were as follows. The appellant was arrested on 16.7.2018 by police team headed by Insp. Mohd Fahmi at Tan Chong Express Auto Servis, No. 69-9, Ground Floor, Jalan Sulaiman, Muar, Johore. Police seized an “OPPO” hand phone from him. Later, a “Samsung” hand phone was recovered when police raided 3 his residence. On 1.8.2018, after questioning by the police, he revealed that he owned three Facebook accounts under the name of Mas Yusof, Mas Selamat and Ah Cong. He also disclosed the password for his “OPPO” hand phone and the password for the “Ah Cong” Facebook account. The username for the account was 0129185184. Police investigations revealed that the said phone number was registered under the name of the appellant. [4] Further investigations by the police revealed that the appellant had been uploading videos and issuing statements inciting or promoting the commission of terrorist acts on the “Ah Cong” Facebook account. This is the subject matter of the charge against him. He had been in communication with local and foreign individuals who were suspected to be involved terrorist activities. He even became acquainted with a known Islamic State (IS) militant by the name of Zilkifli Khir @ Marwan. The said militant was later killed in the Philippines in 2015. Proceedings in the High Court [5] After the accused pleaded guilty, the brief facts were read to him. He admitted the facts and was convicted. Before sentence was passed, his counsel submitted a plea in mitigation. The mitigating factors canvassed by counsel for appellant are as follows. The appellant has a wife and three children. He is 42 years old. Prior to his arrest, he worked as a mechanic and was the sole breadwinner. His wife is now working as a cashier to support the family. He is remorseful and pleaded guilty at the earliest opportunity to save the court a lot of time and money. This is his first offence. For good measure, counsel for appellant also submitted that 4 the acts of his client which attracted penal consequence were all committed in cyberspace and not in the real world. [6] The learned Deputy Public Prosecutor (DPP) urged the court to impose an appropriate sentence. She drew the attention of the court to three unreported recent cases where sentences ranging from five years imprisonment to seven years imprisonment were imposed for the same offence. [7] The learned High Court Judge considered the mitigating factors canvassed by counsel for appellant. However, she also weighed the public interest in the balance as the appellant had committed the serious offence of inciting or promoting commission of terrorist acts. In respect of the argument of counsel for appellant that his client did not commit any violent act in the real world, the learned High Court Judge referred to the Court of Appeal case of Mohamad Nasuha Abdul Razak v. Public Prosecutor [2019] 3 CLJ 612. In that case, the appellant committed several terrorism related offences including swearing an oath of allegiance to a terrorist group but otherwise did not commit any violent crime. Mohd Zawawi Salleh JCA (now FCJ) held that the crimes were serious because passive support may appear harmless but can create an intractable problem. Nonetheless, the Court of Appeal also gave due consideration to the fact that the appellant had not planned any actual terrorist attack. [8] Another case that the learned High Court Judge considered was the case of Murad Halimuddin Bin Hassan dan satu lagi v. Pendakwa Raya dan satu lagi rayuan [2018] 6 MLJ 435. The first appellant was charged with the same type of offence as in this case, i.e. section 130G(a) and 5 another offence under section 130J(1)(b). But the degree of criminality involved in that case was considerably more serious. The appellant and 20 others had proposed and discussed the launching of a jihad which involved kidnapping national leaders and stealing arms from the military forces. For the section 130G(a) offence, the first appellant was sentenced to imprisonment of 18 years which was affirmed by the Court of Appeal. [9] Finally, after citing Mohamed Abdullah Ang Swee Kang v. Public Prosecutor [1987] 2 CLJ 405 in which Mohd Azmi SCJ discussed the factors that should be considered in assessing the length of custodial sentence, the learned High Court Judge opined that seven years imprisonment from date of arrest was appropriate in all the circumstances of the case. Appeal against conviction [10] The appellant was represented by counsel at the High Court proceedings. However, he was not represented at the appeal hearing before us at the Court of Appeal. In the Notice of Appeal against the High Court decision that was filed by the appellant through the Prisons Department, he stated that the appeal is against the conviction and sentence. However, in the petition of appeal, the appellant did not state any ground to challenge the conviction. Before us, he only pleaded for leniency. He did not contest the conviction that was recorded upon his own plea of guilty. [11] Be that as it may, we are of the opinion that there is absolutely no merit in the appeal against conviction as the plea of guilty was correctly entered in accordance with the law. We have carefully perused the notes 6 of proceedings from the High Court. The appellant was represented by counsel. The charge which is drafted in the Malay Language was read to him. The notes of proceedings recorded that he understood the charge as well as the consequences of his plea. The maximum punishment for the offence is also stated at the bottom of the charge sheet. The appellant also admitted the brief facts of the case that was prepared in the Malay Language. In the premises, we are of the view that the appellant had entered an unqualified and unequivocal plea of guilty to the charge after having understood the nature of the charge and the consequences of the said plea. [12] In the premises, as correctly submitted by the learned DPP, section 305 of the Criminal Procedure Code applies. The section provides that where accused person has pleaded guilty and has been convicted, there shall be no appeal except as to the extent or legality of the sentence (see also the cases of Munawar Ahmad Anees v. Public Prosecutor [2009] 2 MLJ 1 and Lee Weng Tuck & Anor v Public Prosecutor [1989] 1 CLJ (Rep)
section
75. We shall now proceed to consider whether there is any merit in the sentence imposed by the learned High Court Judge. Sentence [13] Section 130G reads as follows:
section
130G. Inciting, promoting or soliciting property for the commission of terrorist acts Whoever knowingly--
a
(a) incites or promotes the commission of a terrorist act; 7
b
(b) incites or promotes membership in a terrorist group; or
c
(c) solicits property for the benefit of a terrorist group or for the commission of a terrorist act, shall be punished with imprisonment for a term which may extend to thirty years, and shall also be liable to fine. The appellant was charged under limb (a) of the above-mentioned provision. The maximum punishment is 30 years imprisonment. [14] The appellant who appeared in person pleaded for reduction of the seven years imprisonment imposed by the High Court. He submitted the same mitigating factors that had been earlier canvassed in the court below by his former counsel. He is currently undergoing rehabilitation in the prison. He is married with family. This is his first offence. He is a mechanic in the automotive industry and therefore a skilled worker. And presumably of use to society. His activities were confined to cyberspace only. He never received any military training overseas. He is remorseful now. [15] On the other hand, the learned DPP submitted that the sentence of seven years imprisonment is not manifestly excessive in view of the maximum punishment of 30 years imprisonment provided by the law for the said offence and the recent trend in sentencing in similar cases. [16] At the outset, we remind ourselves that the primary sentencing discretion vests with the court that has original criminal jurisdiction which in this case is the High Court. It is trite law that the appellate court should not lightly interfere with the punishment imposed by the trial court merely because it would have imposed a different sentence. The trial court is allowed to impose a legal sentence within permissible limits in the 8 exercise of its sentencing discretion although another trial court or the appellate court may not have necessarily imposed the same sentence. Otherwise, the “discretion” in “sentencing discretion” would be meaningless. [17] Interference with the punishment imposed by the trial court is only justified if the sentence is manifestly excessive or manifestly inadequate or if the said court omitted to apply the correct sentencing principles and failed to have regard to the relevant aggravating or mitigating factors. [18] In the instant case, we find no error in the exercise of the sentencing discretion by the High Court. Having perused the grounds of judgment, we note that the learned High Court Judge gave due consideration to all the mitigating factors canvassed by counsel for appellant. However, having regard to the gravity of the offence committed by the appellant, she was constrained to strike a fair balance between the interest of the appellant and the public. [19] We agree with the opinion expressed in Murad Halimuddin Bin Hassan dan satu lagi v. Pendakwa Raya dan satu lagi rayuan (supra) that a terrorism related offence in the nature of expressing only passive support on an online portal should be viewed seriously although the offender may not have made any actual preparation for a violent act. The seemingly non-violent act of inciting or promoting commission of a terrorist act to a potentially vast audience in cyberspace may have far reaching tragic consequences if the pernicious seed planted through such online activities bear fruit in the future. This may well be the reason that Parliament had provided a very deterrent maximum punishment of 30 years imprisonment. 9 [20] Nonetheless, the learned High Court was particularly mindful that the appellant did not do any violent act and that he was a so-called “keyboard warrior”. She applied the correct sentencing principles after referring to several well-known cases including the case of Mohd Abdullah Ang Swee Kang v. Public Prosecutor (supra). Thus, no complaint can be levelled at the learned High Court Judge about the manner that she considered the circumstances in which the offence was committed or about the manner that she applied trite sentencing principles. [21] We are also of the view that the sentence imposed by the learned High Court Judge is consistent with the recent trend of sentencing for the same offence. We hasten to add that sentencing trend is not an inflexible standard that must necessarily be applied to all cases without regard to other factors. Nonetheless, the sentencing trend provides a general guide to determine whether a punishment is obviously disproportionate to the offence. [22] The learned DPP cited three unreported cases to the learned High Court Judge. These cases dealt with the same offence, i.e. the offence of inciting or promoting terrorism under section 130G(a) of the Penal Code. In Public Prosecutor v Mohd Khairil bin Mi (Kuala Lumpur High Court WA-45SO-44-06/2014), the accused was sentenced to six years imprisonment from the date of arrest. In Public Prosecutor v Ahmad Faris bin Zulkefli (Kuala Lumpur High Court WA-45SO-35-03/2017), the accused was sentenced to five years imprisonment from date of arrest. And in Public Prosecutor v Zilah binti Tajuddin (Kuala Lumpur High Court WA-45SO-65-03/2017), the accused was sentenced to seven years imprisonment from date of arrest. 10 [23] In the instant case, the punishment imposed by learned High Court Judge was seven years imprisonment which in our view is not manifestly excessive having regard to the maximum punishment and all the relevant circumstances of this case. In the premises, we see no reason to disturb the said sentence. For reasons given earlier, we are also not minded to set aside the conviction. Hence, the appeal of the appellant is wholly dismissed. The conviction recorded by the High Court and the sentence imposed is hereby affirmed. SGD (RAVINTHRAN PARAMAGURU) Judge Court of Appeal Malaysia Putrajaya Dated: 16th day of December, 2019. Parties Appearing: For The Appellant: Masni bin Yusoff Self-represented For The Respondent: Mohd Zain Bin Ibrahim Deputy Public Prosecutor Attorney General’s Chambers
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