- v Firdaus (S-05(H)-43-01/2018)

1 IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. S-05(H)-43-01/2018 BETWEEN PUBLIC PROSECUTOR ... APPELLANT AND MOHD FIRDAUS ASREN SAPUTRA BMS ASREN … RESPONDENT [In the matter of the High Court in Sabah and Sarawak at Kota Kinabalu Criminal Trial No. BKI-45SO-6/2-2017 & BKI-45SO-7/2-2017 Between PUBLIC PROSECUTOR ... PROSECUTION And MOHD FIRDAUS ASREN SAPUTRA BMS ASREN ... ACCUSED] CORAM: MARY LIM THIAM SUAN, JCA ZABARIAH MOHD YUSOF, JCA (now FCJ) VAZEER ALAM MYDIN MEERA, JCA 2 JUDGMENT Introduction [1] A total of six charges for offences relating to terrorism under Chapter VIA (Offences relating to Terrorism) of the Penal Code [Chapter VIA] were brought against the respondent in two cases [BKI-45SO-6/2-2017 and BKI- 45SO-7/2-2017]. After 18 witnesses had given evidence and before the close of the prosecution’s case, the respondent, who was represented by counsel, changed his plea and pleaded guilty to all six charges. The learned Judge convicted the respondent and sentenced him to 8 years imprisonment from the date of arrest for each of the charges and, ordered all the sentences to run concurrently. The prosecution being dissatisfied with the sentence, appealed. [2] After having heard learned DPP and learned counsel for the respondent accused, and upon a full and careful consideration of the grounds of decision, the records of appeal and the totality of evidence, we unanimously allowed the appeal after finding the sentence imposed by the learned Judge to be manifestly inadequate. Having regard to the respondent accused’s change of plea, the element of public interest and the fact that these are security offences as well as the principles of sentencing, we were of the unanimous view that a sentence of ten (10) years from the date of arrest for each of the charges on appeal to run concurrently is adequate and we so ordered. 3 The Six Charges [3] The charges against the respondent in case no. BKI-45SO-6/2-2017 are as follows: Charge 1 Bahawa kamu pada 30.04.2016 jam lebih kurang 3.50 p.m. di Maybank Cawangan Karamunsing, No. 1, Lorong Kemajuan, Karamunsing, dalam daerah Kota Kinabalu, dalam negeri Sabah, telah secara tidak langsung memberikan wang sebanyak RM600.00 kepada Bukhori bin Che Noor melalui akaun Maybank bernombor 1571660894675, yang mana kamu mempunyai sebab yang menasabah untuk mempercayai bahawa harta itu akan digunakan, secara keseluruhan atau sebahagian, untuk melakukan perbuatan pengganas, dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 130N(b) Kanun Keseksaan. Charge 2 Bahawa kamu pada 01.04.2016 jam lebih kurang 4.16 p.m. di Maybank Cawangan Putatan, Ground and First Floor, Lot 10 & 11, Putatan Square Phase II, Lorong Putatan 1, Putatan, dalam daerah Kota Kinabalu, dalam negeri Sabah, telah secara tidak langsung memberikan wang sebanyak RM600.00 kepada Bukhori bin Che Noor 4 melalui akaun Maybank bernombor 1571660894675, yang mana kamu mempunyai sebab yang menasabah untuk mempercayai bahawa harta itu akan digunakan, secara keseluruhan atau sebahagian, untuk melakukan perbuatan pengganas, dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 130N(b) Kanun Keseksaan. Charge 3 Bahawa kamu pada 02.06.2016 jam lebih kurang 11.16 p.m. di Maybank Cawangan Lapangan Terbang Antarabangsa Kota Kinabalu, Lot L1 L22, Terminal 1, Lapangan Terbang Antarabangsa Kota Kinabalu, dalam daerah Kota Kinabalu, dalam negeri Sabah, telah secara tidak langsung memberikan wang sebanyak RM600.00 kepada Bukhori bin Che Noor melalui akaun Maybank bernombor 1571660894675, yang mana kamu mempunyai sebab yang menasabah untuk mempercayai bahawa harta itu akan digunakan, secara keseluruhan atau sebahagian, untuk melakukan perbuatan pengganas, dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 130N(b) Kanun Keseksaan. Charge 4 Bahawa kamu pada 30.06.2016 jam lebih kurang 10.18 p.m. di Maybank Cawangan Karamunsing, No. 1, Lorong Kemajuan, 5 Karamunsing, dalam daerah Kota Kinabalu, dalam negeri Sabah, telah secara tidak langsung memberikan wang sebanyak RM600.00 kepada Bukhori bin Che Noor melalui akaun Maybank bernombor 1571660894675, yang mana kamu mempunyai sebab yang menasabah untuk mempercayai bahawa harta itu akan digunakan, secara keseluruhan atau sebahagian, untuk melakukan perbuatan pengganas, dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 130N(b) Kanun Keseksaan. [4] The two charges against the respondent in case no. BKI-45SO-7/2- 2017 are as follows: Charge 1 Bahawa kamu pada 30.03.2016 jam lebih kurang 11.32 pagi di No. 102, Kampung Contoh Petagas, dalam daerah Putatan, dalam negeri Sabah, dengan pengetahuan telah memberi sokongan kepada Kumpulan Pengganas Islamic State dengan cara berbaiah kepada kumpulan pengganas tersebut melalui aplikasi telegram di dalam kumpulan perbualan “gagak hitam” (social group id no. 146761651) dengan menggunakan nama ID “pejuang tauhid”, dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 130J(1)(b) Kanun Keseksaan. 6 Charge 2 Bahawa kamu pada 28.06.2016 jam lebih kurang 3.41 pagi hingga jam lebih kurang 4.27 pagi di No. 102, Kampung Contoh Petagas, dalam daerah Putatan, dalam negeri Sabah, dengan pengetahuan telah memberi sokongan kepada perbuatan pengganas yang melibatkan penggunaan bahan letupan melalui aplikasi telegram di dalam kumpulan perbualan “amanah(phb) vs pas” (social group id no. 143486835) dengan menggunakan nama ID “pejuang tauhid”, dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 130J(1)(a) Kanun Keseksaan. Statement of Facts and Sentence [5] Upon the respondent’s plea of guilty to the six charges, the following statement of facts was admitted by the respondent – see exhibit P72 at pages 999 to 1008 of the record of appeal. Those undisputed facts are summarized as follow. [6] On 25.3.2016, the respondent accused was added to an online chat group called “gagak hitam” by one Muhummad Wandy bin Mohamed Jedi aka “Wanndy” or “Akhi Wandy” (now deceased), using the respondent accused’s mobile phone number. Wanndy was believed to be in Syria at 7 that material time. That chat group had 66 members. Wanndy subsequently added the respondent to another chat group known as “amanah (pbh) v pas”. This second chat group had 44 members. Both chat groups were operated using the “Telegram” application. The user name of the respondent in both chat groups was the same, that is, “pejuang tauhid”. [7] On 30.3.2016 at around 11.32 a.m., the respondent declared allegiance to the terrorist entity known as Islamic State (IS) in the “gagak hitam” chat group, reciting an oath known in Arabic as “Bai’yah”. This “oath of allegiance” is the subject matter of the 1st charge in BKI-45SO-6/2-2017. [8] On 28.6.2016, Wanndy who was then operating somewhere in Syria posted on the “amanah (pbh) v pas” chat group announcing to the members that a pub known as “Movida” in Petaling Jaya had been bombed. The respondent responded to Wanndy’s posting, making three comments on 28.6.2016 at 4.22 a.m., 4.23 a.m. and at 4.26 a.m. The first comment was “alamak.. dah ter like hehe.. Serangan guna apa akhi?”; the second which was a response to Wanndy’s posting of “guna bom tangan je, tp dorg nmpk ada kafir cina yg tumbang ha ha” was “Alhamdulillah..”. The third comment in response to Wanndy’s posting that “msti ada yg tumbang” was “Harap jumlah yg mampos tu ramai…” These three comments are the subject matter of the 2nd charge in BKI-45SO-7/2-2017. [9] Wanndy had also sought for monetary contributions (infaq in Arabic) to assist members of the Islamic State organization in Syria. Monetary contributions were told to be paid into the bank account of one Bukhori bin 8 Che Noor. The respondent responded to these requests, making four separate contributions of RM600.00, on 1.4.2016 at 4.16 p.m., 30.4.2016 at 3.50 p.m., 2.6.2016 at 11.16 p.m. and on 30.6.2016 at 10.18 p.m. These monetary contributions by the respondent are the subject matter of the remaining four charges. [10] All the conversations in the two chat groups were noted down and kept by a member who then reported to the police. The respondent was arrested on 18.7.2016 at around 9.45 p.m. and his mobile phone was seized. A bank slip dated 1.4.2016 for the sum of RM600.00 was also found on the respondent revealing that the respondent had deposited money to Bukhori bin Che Noor. CCTV recordings at the bank were also tendered in evidence. [11] The “bai’yah” taken by the respondent was referred to Ahmad El-Muhammady bin Muhammad Uthman El-Muhammady, an expert in terrorism analysis, from the International Islamic University of Malaysia. In his expert report on the analysis tendered at the trial of the respondent, the expert opined that “Bai’yah” is an oath of allegiance and loyalty to a leader (emir); and in the instant case, the oath of allegiance taken by the respondent amounted to expressing support for the Islamic State. [12] Bukhari bin Che Noor was subsequently charged on 10.4.2017 with the offence of making financial service available for terrorist purposes under section 130O of the Penal Code and was sentenced to 7 years imprisonment from the date of his arrest on 30.6.2016. Vide Gazette Notification dated 12.11.2014 [P.U.(A) 301], “Islamic State” was declared a terrorist 9 organization under section 66B and 66D of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 [AMLATFA 2001]. [13] As mentioned at the outset, the respondent changed his plea more than mid-way through the prosecution’s case. The statement of facts were tendered and marked as exhibit P7 followed by submissions on mitigation. Learned counsel for the respondent focused on the personal circumstances and nature of the offences charged, the personal circumstances being-i. the respondent, married with three children, was 34 years at the time of the commission of the offences in question; ii. despite his humble background, the respondent managed to educate himself and had obtained a degree in architecture; iii. at the time of arrest, the respondent was running a successful car rental business; iv. the respondent was a first offender without any previous criminal record. [14] As for the four charges of transmitting money for the use of Malaysians in Syria who were with the Islamic State organization, the respondent claimed naivety and innocence, that he was not aware of the potential use of the monies for terrorist activities. On the allegiance to the Islamic State, he claimed that he merely cut and pasted the words of the “bai’yah” on the chat group without understanding its significance. As for his expressions of support for the bombing of the Movida pub, the respondent claimed to be a 10 generally inactive member of the group and had never participated in violent acts, and that he had no plans to go to Syria to join the Islamic State terrorists. [15] The learned DPP had prayed for a deterrent sentence, pointing out that the respondent only pleaded guilty after 18 witnesses had been called. The Court was also invited to consider the public interest element. A list of unreported cases concerning similar or same offences was produced to the Court. Those persons had also participated in the same two chat groups as the respondent. [16] After hearing submissions on mitigation, “after taking into account all the personal circumstances of the accused, the nature of the crime, interest of the public and importance of the rehabilitation aim in this type of cases”, the learned Judge sentenced the respondent to eight years imprisonment on each of the six charges in the said two cases and further ordered the sentences to run concurrently from the date of arrest. The reasons for the sentence can be seen at paragraphs 23 to 35 of the grounds of judgment and can be summarized as follows: i. being mindful that the maximum punishment is 30 years and minimum is 7 years for the charges under s 130N(b); that the offences were recently drafted by Parliament to meet the threat posed by international terrorist organizations such as the Islamic State; 11 ii. by comparison, the offence of committing culpable homicide not amounting to murder under section 304(a) of the Penal Code where a human life has been taken, is punishable with the maximum term of imprisonment of 30 years; iii. a lengthy term of imprisonment which has some bearing to the maximum term of imprisonment of 30 years would be more suitable for repeat offenders or those who had given material support to terrorist acts beyond making gleeful comments; iv. while the respondent cannot feign ignorance that the money given would not be potentially used for terrorist acts, the amount given is relatively small; v. in the present case, the expression of support and declaration of allegiance were all made online; vi. although wrong in that it has the potential of influencing others to commit actual terrorist acts, a lengthy period of incarceration was seen to be counterproductive to the rehabilitation process; and vii. while the respondent had pleaded guilty only after many witnesses had testified for the prosecution, the Court was nevertheless of the view that given the fact that the respondent is a first offender and had shown remorse for his crime, some credit still ought to be given for his plea of guilty. 12 The Appeal Before Us [17] The learned prosecution appealed arguing that the learned Judge erred in law and in fact - i. in passing sentences that did not reflect the public interest, the rampancy and high risk and threat to the security of the nation; ii. in failing to find that criminal offences committed by the respondent is prevalent amongst the public in giving support to the Islamic State despite numerous and enhanced measures by authorities to combat the crime; iii. in imposing sentences which were manifestly inadequate when compared to the maximum sentence provided under sections 130N(b) and 130J(a) and (b) of the Penal Code; iv. in giving emphasis to the respondent’s interest instead of the public interest; v. in finding that the role and involvement of the respondent did not qualify him to be imprisoned for a long period; vi. in holding that the amount of money was small and should not be a basis for lengthy imprisonment of the respondent; 13 vii. that the respondent had claimed trial and had only changed his plea to one of guilty after 18 prosecution witnesses had testified. [18] The learned DPP further emphasized the seriousness of the offence, citing several high and relevant authorities in this regard, and that the sentences meted out did not reflect the seriousness of the offences. Comparison with other similar cases were then made. [19] Learned counsel for the respondent contended otherwise, urging this Court to dismiss the appeal for the following reasons: i. that the learned Judge was mindful and had considered the element of public interest; ii. that the complaint of rampancy had not been mounted by the prosecution; iii. that the sentence was adequate having regard to the role played by the respondent; iv. having regard to the reformative and rehabilitative aspects of sentencing and since the respondent did not directly aid in the commission of violent acts, the door should be open for the respondent to return to society as soon as he is rehabilitated; 14 v. that the respondent pleaded guilty after 8 witness had testified. Our Decision [20] It was particularly impressed upon us that the learned Judge had erred in failing to have regard to the gravity of the offence and that public interest ought to have prevailed over the personal mitigating considerations articulated and relied on by the respondent. Those mitigating factors being that he had conceded that the offence committed was of a serious nature; that he was a sole breadwinner for his family and that he was a first offender, and the several other considerations mentioned earlier. [21] Having carefully considered the evidence, the record of appeal, the reasoning of the learned Judge and the submissions of both learned counsel, we agreed with the learned DPP. [22] Section 130N(b) and 130J(1) of Chapter VIA of the Penal Code read as follows: Providing or collecting property for terrorist acts

130N. Whoever, by any means, directly or indirectly, provides or collects or makes available any property intending, knowing or having reasonable grounds to believe that the property will be used, in whole or in part, to commit a terrorist act shall be punished- 15

130J. (1) Whoever knowingly and in any manner solicits support for, or gives support to-

5. Imam Wahyudin Karjono 45SO-35- 12/2016 [High Court] s. 130J(1)(a) [Bai’ah, telegram] 12 years imprisonment from the date of arrest PG at 1st instance 6. Jonius Ondie @ Jahalie [High Court] s. 130J(1)(b) [support, telegram] 10 years imprisonment from the date of arrest PG after 8 witnesses called 7. Mustaza Abdul Rahman [High Court] s. 130J(1)(b) [support, telegram] 12 years imprisonment from the date of arrest Full trial 8. Mustaza Abdul Rahman [High Court] s. 130J(1)(a) [Bai’ah, telegram] 12 years imprisonment from the date of arrest Full trial 9. Azizi bin Abdullah v PP W-05(SH)-218- 05/2017 [Court of Appeal] s. 130J(1)(b) [support, telegram] 13 years imprisonment from the date of arrest PG at 1st instance 10. Mohamad Nasuha bin Abdul Razak v PP W-05(H)-404- 09/2017 [Federal Court] s. 130J(1)(b) [support, telegram] 10 years imprisonment from the date of arrest PG at 1st instance [40] From the list, we noted that Bukhori bin Che Noor, to whose account the respondent had made the four separate monetary contributions was sentenced to 7 years imprisonment from the date of arrest. He had pleaded guilty at first instance. We noted further that as for the other offenders, in PP v Mustaza Abdul Rahman, a term of 12 years imprisonment had been imposed after a full trial; while in the case of Azizi bin Abdullah v PP, a term 26 of 13 years imprisonment was imposed although he had pleaded guilty at first instance. In the Federal Court decision of Mohamad Nasuha bin Abdul Razak v PP [W-05(H)-404-09/2017], a 10 year imprisonment was imposed even though the accused had pleaded guilty at first instance to a charge under section 130J(1)(b). The closest in circumstances would be the case of PP v Jonius Ondie @ Jahalie where a 10 year imprisonment was imposed where the accused changed his plea after 8 witnesses had testified. Conclusion [41] From the submissions of both counsel, the totality of evidence, the change of plea, the public interest and the severity of the offence and for the reasons already discussed, we unanimously thus found that there was appealable error in the exercise of discretion in respect of the punishment that was meted out. We held that a sentence of 10 years imprisonment from the date of arrest for each of the charges to run concurrently is adequate and appropriate, and we so ordered. Dated: 18th December 2019 sgd (MARY LIM THIAM SUAN) Judge Court of Appeal Malaysia 27 Counsel/Solicitors For the Appellant: Nik Syahril bin Nik Ab Rahman Deputy Public Prosecutor Attorney General’s Chambers MALAYSIA For the Respondent: Azhier Farhan Messrs. Azhier Arisin & Co. Suite A3-2, 2nd Floor, Block A, Plaza Utama Jalan Pintas Penampang, 88300 Kota Kinabalu