Mohamad Nasuha bin Abdul Razak v Pendakwa Raya (W-05(H)-404-09/2017)

DALAM MAHKAMAH RAYUAN MALAYSIA [BIDANG KUASA RAYUAN] RAYUAN JENAYAH NO. : W-05(H)-404-09/2017 (Mahkamah Tinggi Malaya di Kuala Lumpur Perbicaraan Jenayah No.45SO-70-04/2017) ANTARA MOHAMAD NASUHA BIN ABDUL RAZAK … PERAYU DAN PENDAKWA RAYA … RESPONDEN CORAM: MOHD ZAWAWI SALLEH, JCA AHMADI HAJI ASNAWI, JCA ABDUL KARIM ABDUL JALIL, JCA JUDGMENT OF THE COURT Introduction [1] The appellant was charged before the Kuala Lumpur High Court for four terrorism related offences. The charges read as follows: First Charge “Bahawa kamu pada 30 Mac 2016 jam lebih kurang 8.37 pagi, di Lot 3030, Kampung Sungai Tembak, Parit Panjang, dalam daerah Baling, dalam negeri Kedah, dengan pengetahuan telah memberi sokongan dengan cara berbai’ah kepada kumpulan pengganas Islamic State menggunakan nama “Abu Nazrin” dalam kumpulan aplikasi Telegram “gagak hitam” dengan menggunakan nombor telefon 011-24335218 seperti di lampiran; dan oleh yang demikian kamu telah melakukan suatu kesalahan di bawah perenggan 130J(1)(a) Kanun Keseksaan [Akta 574] yang boleh dihukum di bawah subseksyen 130J(1) Kanun yang sama.” Second Charge “Bahawa kamu pada 30 Mac 2016 jam lebih kurang 8.37 pagi, di Lot 3030, Kampung Sungai Tembak, Parit Panjang, dalam daerah Baling, dalam negeri Kedah, telah ada dalam milikan kamu empat (4) keping gambar di dalam telefon bimbit jenis IPhone 5s (Nombor IMEI: 013986000816301) yang merupakan item berkaitan dengan kumpulan pengganas Islamic State (IS),dan dengan itu kamu telah melakukan suatu kesalahan di bawah perenggan 130JB(1)(a) Kanun Keseksaan [Akta 574] yang boleh dihukum di bawah subseksyen 130JB(1) Kanun yang sama.” Third Charge “Bahawa kamu pada 4 Mei 2016 jam lebih kurang 5.01 petang, di CDM Maybank Petronas, Kuala Ketil, dalam daerah Baling, dalam negeri Kedah, telah secara tidak langsung memberikan wang sebanyak RM100 kepada Bukhori bin Che Noor melalui akaun Maybank bernombor 157166-894675, yang mana kamu mempunyai sebab yang munasabah untuk mempercayai bahawa harta itu akan digunakan, secara keseluruhan atau sebahagian, untuk melakukan perbuatan pengganas, dan oleh yang demikian kamu telah melakukan satu kesalahan di bawah subseksyen 130N(b) Kanun Keseksaan [Akta 574] dan boleh dihukum di bawah peruntukan yang sama.” Fourth Charge “Bahawa kamu pada 29 Jun 2016 jam lebih kurang 1.02 petang, di CDM Maybank Baling 2, dalam daerah Baling, dalam negeri Kedah, telah secara tidak langsung memberikan wang sebanyak RM100 kepada Bukhori bin Che Noor melalui akaun Maybank bernombor 157166-894675, yang mana kamu mempunyai sebab yang munasabah untuk mempercayai bahawa harta itu akan digunakan, secara keseluruhan atau sebahagian, untuk melakukan perbuatan pengganas, dan oleh yang demikian kamu telah melakukan satu kesalahan di bawah subseksyen 130N(b) Kanun Keseksaan [Akta 574] dan boleh dihukum di bawah peruntukan yang sama.” [2] The appellant pleaded guilty to all the four charges and was duly convicted. After having considered the written and oral submissions by the parties, the learned Judicial Commissioner (“JC”) sentenced the appellant as follows:

(ii) Second charge: four (4) years imprisonment;

(iii) Third charge: ten (10) years imprisonment;

(iv) Fourth charge: ten (10) years imprisonment; and

(2010) ONCA 862 at [231]: “To be sure, terrorism is a crime unto itself. It has no equal. It does not stop at, nor is it limited to, the senseless destruction of people and property. It is far more insidious in that it attacks our very way of life and seeks to destroy the fundamental values to which we ascribe – values that form the essence of our constitutional democracy.” [13] These unique features have been recognised by the Malaysian Courts. The Courts viewed the terrorism-related offences as serious crimes and had imposed deferent sentences on the perpetrators of such crimes. (See PP v. Muhammad Kasyfullah Kassim [2017] 1 CLJ 63, PP v. Muamar Gadaffi bin Mohamad Shafawi [2017] 1 LNS 516, PP v. Rohaimi Abd Rahim & Anor (Criminal Appeal No.: W-05(H)-83-02/2016), PP v. Kadir Uyung & Anor & Other Appeals [2017] 1 LNS 1403, PP v. Mohamed Danny Mohamed Jedi [2018] 5 CLJ 692). [14] Be that as it may, one of the important factors that we must bear in mind is that the sentence must always satisfy the principle of proportionality - that the severity of the penalty should be proportionate to the gravity of the offence committed and the degree of responsibility of the offender. The principle was articulated by the High Court of Australia in Hoare v R [1989] 167 CLR 458 at 354 as follows: “a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances.” [15] Terrorism related offences under Chapter VIA of the Penal Code cover a broad spectrum of offenders. There are instances where people are merely followers, acolytes or assistants, people who have sympathies for the activities of the organisation, or who are willing to have organisation benefit from fundraising efforts. These offences no doubt, are serious in nature. Nonetheless, they should not be treated on equal footing with other heinous acts of terrorism. [16] The Malaysian superior courts have not come up with clear guidelines on sentencing in respect of these types of offences. [17] In the absence of definitive guidelines from our courts, it is perhaps useful to make reference to the “Definitive Guideline to Terrorism Offences” (“Guideline”) published by the British Sentencing Council. They cover a wide range of terrorism offences including the preparation of terrorist attacks, causing or attempting to cause an explosion, collecting or sharing extremist material, raising funds for terrorism, glorifying terrorist attacks, failing to disclose information about terrorist acts and joining or supporting a banned organisation. [18] According to the Guideline, the levels of criminality are differentiated by (a) culpability and (b) harm. Briefly, depending on the level of the role the offender played, for example, whether the offender played a leading role in a group activity, he or she could be classified in the category of “High Culpability”. If the role is lesser, the offender is classified in lower levels of culpability such as “Medium Culpability” and “Lower Culpability” with the sentence range diminishing as the level of culpability is reduced. The courts must also consider the harm associated with the underlying offence to determine whether it warrants heavier sentence in appropriate cases. The detail characteristics are reproduced as follows: Culpability demonstrated by one or more of the following A  Offender in position of trust, authority or influence and abuses their position.  Persistent efforts to gain widespread or significant support for organisation.  Encourages activities intended to cause endangerment to life. B  Arranged or played a significant part in the arrangement of a meeting/ event aimed at gaining significant support for organisation.  Intended to gain widespread or significant support for organisation.  Encourages activities intended to cause widespread serious damage to property, or economic interests or substantial impact upon civic infrastructure. C  Lesser cases where characteristics for categories A and B are not present. Harm The court should consider the factors set out below to determine the level of harm. 1  Evidence that others have acted on or been assisted by the encouragement to carry out activities endangering life.  Significant support for the organisation gained or likely to be gained. 2  Evidence that others have acted on or been assisted by the encouragement to carry out activities not endangering life. 3  All other cases. [19] In our view, the Definitive Guideline, though not binding upon our courts, is very useful because it affords the sentencing judge a greater certainty as to the likely sentence that will be imposed within the defined parameters of the factual and evidential matrix of the case. First Charge [20] Reverting back to the present appeal, the appellant had participated in ba’yah, a ritual in which he swore an oath of allegiance to the IS, promising obedience to the leader of the terrorist group. The oath reflects an agreement and intention to follow directions. The appellant’s action of signing on to the IS roster of loyalists shows his strong commitment to aid the IS – professing radical beliefs or joining the radical organisation. [21] Submissions have been made about the appellant’s personal problems. In our considered view, it carries a little weight. No doubt the appellant is responsible in caring his family, and his absence will be difficult to his family, but we must say that the appellant is the author of his own misfortune. [22] Learned DPP had helpfully brought to our attention the following decisions, in which the accused had been sentenced for the same offences: Cases 1 PR v. Zairosfitri bin Jainudin Azhar [45SO-26-11/2016] The accused pleaded guilty to one count of terrorism related offences i.e. supporting the Islamic State (“IS”) by taking an oath of allegiance or bai’ah. He was sentenced to 5 years imprisonment, with effect from the date of arrest. Cases 2 PR v. Roshelmyzan bin Husain [45SO-33-12/2016] The accused pleaded guilty to two counts of terrorism related offences i.e. supporting the Islamic State (“IS”) by taking an oath of allegiance or bai’ah and having in his possession items related to IS. He was sentenced to 4 years imprisonment for the first charge and 2 years imprisonment for the second charge. 3 PR v. Imam Wahyudin bin Karjono & Jonius Ondie @ Jahali [2017] 1 LNS 691 Both accused pleaded guilty to two counts of terrorism related offences i.e. supporting the Islamic State (“IS”) by taking an oath of allegiance or bai’ah and hurling of a grenade at the Movida club which injured eight people. They were each sentenced to 10 years imprisonment for the first charge and 25 years imprisonment for the second charge. 4 PR v. Bukhori bin Che Noor [45SO-40-12/2016] The accused pleaded guilty to two counts of terrorism related offences i.e. supporting the Islamic State (“IS”) by taking an oath of allegiance or bai’ah and allowing the use of his personal bank account for the benefit of the IS. He was sentenced to 7 years imprisonment for each charge. Cases 5 PR v. Wan Mohamad Nur Firdaus Abd Wahab [45SO- 108-05/2017] The accused pleaded guilty to two counts of terrorism related offences i.e. supporting the Islamic State (“IS”) by taking an oath of allegiance and having in his possession items related to IS. He was sentenced to 8 years imprisonment for the first charge and 5 years imprisonment for the second charge. 6 PR v. Tengku Shukri Che Engku Hashim [2017] 1 LNS 1763 The accused pleaded guilty on two counts of terrorism related offences i.e. supporting the Islamic State (“IS”) by taking an oath of allegiance or bai’ah and supporting the use of explosives. He was sentenced to 8 years imprisonment for the first charge and 3 years imprisonment for the second charge. [23] We have examined the sentences imposed by the courts in the above cases. The sentence in each of those cases is “fact-specific” or “individualisation of punishment”, which requires proper consideration of the individual circumstances of each accused person. [24] In the present appeal, we recognised that the appellant was not involved directly in any particular violent action. However, there is no doubt that the offences committed by the appellant are serious in nature. The action of pledging an oath of allegiance constitutes passive support to the terrorist group. Passive support may be seemingly harmless but it is an intractable problem than open support for terrorism. A terrorist group which has the passive support of many of its followers will be stronger and more determined. Passive support often allows a group to raise funds, acquire arms, plan operations, and enjoy a respite from the counter-attacks of the government it opposes. [25] Therefore, it is our considered view, that the appellant’s action had crossed the line between the legitimate expression of his own views and the criminal act of inviting support for an organisation which was at the material time engaged in appalling acts of terrorism. [26] As we have alluded to earlier, the evidence in this case did not show specific link between the pledge and any acts of violence. Therefore, with respect, we found that the imprisonment term imposed by the High Court is excessive in light of the circumstances of the case. Consequently, we are mindful to allow the appellant’s appeal in respect of the first charge, and substituted it with ten (10) years imprisonment. Second Charge [27] In considering whether the sentence imposed upon the appellant in respect of the second charge is excessive or otherwise, we have examined the following decisions, in which the accused had been sentenced for the same offence: Cases 1 PR v. Muhammad Sani Mahdi Sahar [2016] 1 LNS 1150 The accused pleaded guilty to an offence of having in his possession 39 terrorism video recordings. He was sentenced to 18 months imprisonment, with effect from the date of arrest. 2 PR v. Mohd Haniffa Syedul Abbar [2016] 1 LNS 1654 The accused pleaded guilty to two counts of terrorism related offences i.e. dealing with terrorist properties and having in his possession 17 photographs relateing to the IS. He was sentenced to 10 years imprisonment for the first charge and 2 years imprisonment for the second charge, with effect from the date of arrest. Sentences to run consecutively. Cases 3 PR v. Anuar Ab Rawi [2016] 1 LNS 946 The accused pleaded guilty to an offence of having in his possession 7 photographs and a book relating to the IS. He was sentenced to 2 years imprisonment, with effect from the date of arrest. 4 PR v. Azizi Abdullah [2017] 1 LNS 562 The accused pleaded guilty to three counts of terrorism related offences i.e. (i) supporting the commission of terrorist acts , involving the use of explosive material, (ii) having in his possession an IS flag and (iii) having in his possession IS related photographs and video recordings. He was sentenced to 13 years imprisonment for the first charge and 4 years imprisonment each for the second and third charge, with effect from the date of arrest. Sentences to run concurrently. 5 PR v. Muhammad Hakimin Azman [2017] 1 LNS 1017 The accused pleaded guilty to one count of terrorism related offence i.e. having in his possession seven (7) IS related photographs. He was sentenced to 1 year imprisonment, with effect from the date of arrest. 6 Siti Noor Aishah Atam v. PR [2018] 5 CLJ 44 The accused was tried for having in her possession twelve (12) books related to the movement and acts of the IS. The Court of Appeal allowed her appeal and reduced the sentence from five (5) years imprisonment to 3 years imprisonment, with effect from the date of arrest. [28] In the present appeal, the appellant had downloaded extremist materials and gathered them in his mobile phone. The photographs were a collection of violent images, designed to incite people in pursuit of violent jihad. These items are related to terrorist group which could threaten national security and public order. We accept that there is no evidence to show that these photographs were part of a planned attack. The evidence only shows that the appellant was motivated by their ideology and was preparing to follow them. For the foregoing reasons, we found that the sentence imposed by the High Court was reasonable and appropriate in the circumstances of the case. We, therefore, affirmed the imprisonment term of four (4) years imposed in respect of the second charge. Third & Fourth Charge [29] The appellant had deposited small amount of money at ATMs at different locations over a period of time. It showed that the appellant had followed a systematic plan and executed it meticulously and discreetly, to avoid scrutiny and to prevent potential detection. [30] Although the amount involved is not large, but every penny is a contribution to serious harm. Much havoc can be wreaked with inexpensive items. The cost of a terrorist attack can be modest, but the cost to society is far greater. The fundraising depends on people like the respondent who are prepared to facilitate the transactions to and from his bank account which benefited the Syria-based militants Fudhail Omar and Muhammad Wanndy. The appellant was aware that the money that he wired would go to the terrorist group. This is not a case of a vulnerable young person being lured or beguiled into criminal misconduct in which he was not inclined to participate. The appellant was a willing participant and took steps to provide support to the group. [31] On the foregoing reasons, we found that there is no cogent reason for us to disturb the imprisonment sentence of ten (10) years imposed on the appellant in respect of for the third and fourth charges. Conclusion [32] Whilst we acknowledged that the appellant had no direct involvement with the terrorist group, his actions, however, have a risk of enhancing the abilities of the group. We, therefore, are firmly of the view that the severity of the offences herein outweigh the appellant’s plea of guilty. [33] We found that there are no sufficient justification to disturb the sentences imposed on the appellant for the second, third and fourth charges. However, we found that thirteen (13) years of imprisonment imposed in respect of the first charge was manifestly excessive. We, therefore, allowed the appellant’s appeal only in respect of the first charge. We, accordingly, set aside the sentence imposed by the High Court in respect of the first charge and substituted it with an imprisonment term of ten (10) years with effect from the date of arrest. So ordered. Dated: 15th January 2019 sgd. (MOHD ZAWAWI SALLEH) Judge Court of Appeal Malaysia Counsel for the Appellant: Appears in person. Counsel for the Respondent: Dhiya Syazwani Izyan binti Mohd Akhir Deputy Public Prosecutor Appellate and Trial Division Attorney General’s Chambers Putrajaya.