Jusninawati bt Abdul Ghani v Public Prosecutor [2020] 1 MLJ 1

Federal Court (Putrajaya)

Duty of a police officer to furnish information regarding to terrorism to his/her superiors

1. The prosecution’s case was that the Appellant, a police corporal stationed at the Petaling Jaya District Police Headquarters, had information about plans by two individuals; Nor Azimah Adnan (SP1) and Abdul Ghani Yaacob to travel to Syria and join the Islamic State (IS) to commit terrorist acts. She allegedly knew about these plans as early as August 2015 but failed to report them to her superiors. Evidence later showed that Abdul Ghani did travel to Syria and was killed in a battle in the Al Khair province.
2. The Appellant had been exposed to the Syrian conflict since 2013 through Facebook and had built connections with several IS militants, including Abu Syamil and Fudhail Omar, via social media. She had previously been reprimanded by an officer from Bukit Aman’s Special Branch, warning her against involvement with IS.
3. At trial, it was established that in August 2015, SP1 who was known online as “Umi Diyana”, told the Appellant that she intended to marry Abdul Ghani (also known as “Abu Kedah”) and follow him to Syria to join IS, an offence under section 130JA of the Penal Code. In September 2015, SP1 arranged a meeting between the Appellant and Abdul Ghani, during which Abdul Ghani personally informed the Appellant of his intention to travel to Syria with SP1. SP1 also testified that Abdul Ghani had messaged her saying that the Appellant herself had once intended to go to Syria but could not do so due to financial constraints. SP1 ultimately never left for Syria because her marriage lasted only five days and she was involved in a road accident in November 2015.
4. The Appellant’s cautioned statements (Exhibits P6(a)–P6(e)) were admitted into evidence. In these statements, she acknowledged communicating with IS members through Facebook and Telegram and confirmed that Abdul Ghani had informed her of his plans to take SP1 to Syria. Nonetheless, she did not report this information to her superiors, believing that Abdul Ghani’s statements were merely “empty talk”.
5. After a full trial, the High Court convicted the Appellant and imposed the maximum sentence of seven years’ imprisonment, to take effect from the date of her arrest on 22 March 2016. The conviction and sentence were affirmed by the Court of Appeal on 8 November 2017. Dissatisfied with those decisions, the Appellant has now appealed to the Federal Court.

Whether a statutory duty existed that compelled the Appellant to furnish the information.

1. The central question in the appeal was whether the Appellant, a police corporal, was under a legal duty to disclose information about the planned commission of an offence under section 130JA of the Penal Code. To establish liability under section 130M, the prosecution first had to show that she was “legally bound” to provide such information. Under section 43 of the Penal Code, a person is “legally bound” to act when failure to do so would amount to an illegal omission, that is, an omission that constitutes an offence, is prohibited by law, or gives rise to civil liability. This “negative test” was affirmed in Chiew Poh Kiong v Public Prosecutor [2001] 4 MLJ 280; [2001] 7 CLJ 249, following Dr. Hari Singh Gour’s commentary in Penal Law of India (9th Ed).
2. Applying this test, the Federal Court held that the Appellant was not legally bound under the former paragraph 13(1)(a) of the Criminal Procedure Code (CPC) to report the information she received. The earlier version of paragraph 13(1)(a) only required reporting of specific listed offences, and the offence of travelling abroad to commit terrorist acts under section 130JA was not included. The amended version of paragraph 13(1)(a), which imposes a broader duty to report offences under the Penal Code or any written law, came into force only on 23 December 2016 and could not operate retrospectively, in line with the principle in Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1; [1997] 4 CLJ 645.
3. The Federal Court also relied on persuasive Indian authorities interpreting the parallel provision in section 39 of the Indian Criminal Procedure Code. In Dr Satyasaheel Nandlal Naik v State of Maharashtra [1996] CriLJ 1463 and Akbaruddin Owaisi v The Government of Andhra Pradesh [2014] CriLJ 2199, the Indian courts held that citizens have no statutory obligation to report offences not listed in the relevant provision. The Federal Court held that the same reasoning applies to Malaysia’s former paragraph 13(1)(a) CPC.
4. The Court of Appeal had relied on subsections 3(3) and 20(3) of the Police Act 1967 to impose a statutory duty on the Appellant as a police officer. However, the Federal Court rejected this reasoning, finding no direct evidence that her duties specifically required her to gather or report intelligence on terrorist activities. Without clear statutory language criminalising the omission, her conviction could not stand. The Federal Court emphasised that penal statutes must be strictly construed and cannot be expanded by implication.
5. As the prosecution failed to establish a legal duty to report the information, the Appellant’s conviction under section 130M of the Penal Code was held to be wrongful and legally unsustainable. 

The Federal Court allowed the appeal, quashed the conviction and sentence, and ordered the Appellant  to be acquitted and discharged.

The Federal Court reaffirmed that penal laws must be strictly interpreted. No person can be held criminally liable for failing to act unless the law explicitly makes that omission an offence.