Public Prosecutor v Wan Mohamad Nur Firdaus Bin Abd Wahab And Other Appeal [2019] 4 MLJ 692

Court of Appeal (Putrajaya)

Terrorism

2.     Police discovered 23 images or photographs related to the terrorist group Islamic State (‘IS’) after analysing the said phone.

3.     Further investigation by the police revealed that the accused swore an oath of allegiance to IS on 30 March 2016 at 7.32am via the social media chat platform Telegram ‘Gagak Hitam’, under the name ‘Lat Firdaus’ as follows-:

“SAYA FIRDAUS BERSUMPAH DEMI ALLAH TIDAK AKAN BERKHIANAT KEPADA IKHWAH ANSHAR DAULAH ISLAMIYAH DIMANAPUN BERADA, SIAP MENERIMA AZAB DARI ALLAH, & TIDAK DI TERIMA BUMI BILA SAYA BERKHIANAT & SAYA MEMBERIKAN INFORMASI PENTING KEPADA THAGHUT BERUPA IDENTITAS, STRATEGI, MAUPUN PERGERAKAN YANG SEKECIL-KECILNYA DARI PERJUANGAN INI ATAU APAPUN YANG DAPAT MEMBAHAYAKAN KESELAMATAN ANSHAR DAULAH LAINNYA. BILA SAYA TERTANGKAP ATAU TERANCAM DIBUNUH, SAYA TIDAK AKAN MEMBERIKAN INFORMASI APAPUN KEPADA MUSUH-MUSUH ALLAH.

INILAH SUMPAH SAYA ATAS NAMA ALLAH SWT, SEMOGA ALLAH MELINDUNGI SAYA LAHIR & BATIN, DUNIA & AKHIRAT AAAMIIN YA RABBAL ALAMIN …”

4.     According to Ahmad El-Muhammady bin Muhammad Uthman El-Muhammady of International Islamic University’s Pusat Pengajian Asasi, who was asked to analyse the said allegiance, the oath represents these-:

“Bay’ah merupakan sumpah yang dilakukan oleh seseorang untuk memberi kesetiaan dan ketaatan kepada ketua (amir) dan kumpulan. Bay’ah merupakan satu upacara penting bagi seorang pengikut untuk menyertai sesuatu kumpulan. Apabila seseorang itu memberikan bay’ah atau sumpah taat setia kepada seseorang atau kumpulan, maka implikasinya seperti berikut:

(i)Seseorang menjadi ahli bagi kumpulan itu secara rasmi

(ii)Ahli bersedia memberi kesetiaan (wala’) yang mutlak kepada ketua atau kumpulan

(iii)Bila diberi arahan oleh ketua atau kumpulan, ahli wajib taat atau wajib patuh pada arahan tanpa ragu-ragu (al-taáh)

(iv)Sekiranya ahli tidak akur atau melanggar bay’ah, akan gugur keahlian, dianggap durhaka kepada ketua (amir), wajib dihukum. Hukuman ini dilaksanakan oleh kumpulan atau sumpah untuk mendapat hukuman dari Allah di dunia dan akhirat

(v)Sekiranya dia melanggar sumpah (bay’ah), dia akan mendapat balasan di dunia dan di akhirat”.

5.     As a result, the Accused was charged with two offences under Penal Code i.e., Sections 130J(1)(a) and 130JB(1)(a) (Act 574).

6.     The Accused, who was 22 years old at the time, pleaded guilty to both charges when he was arraigned before the High Court to face them, but the case was postponed to allow him to hire a lawyer from the National Legal Aid Foundation.

7.     In his mitigation, his then-counsel informed the court that, aside from his family background, which included three school-aged siblings, elderly parents, and a hypertensive mother, the Accused was influenced to commit the crimes by friends and social media.

8.     He expressed regret and promised not to commit similar offences in the future. The learned deputy public prosecutor (‘DPP’) urged a deterrent sentence in his written submission due to the gravity of the offence and the public interest.

9.     The learned High Court judge was then asked to impose a sentence of eight years for the first charge and five years for the second charge, both of which would begin on the date of his arrest, which was September 25, 2016.

10.  Following that, both the DPP and the Accused filed appeals against the sentences imposed.

(a) The terrorism-related offences are a scourge on all societies, and terrorist acts have caused untold suffering and loss of life around the world. As a result, the Court stated that they have no intention of trivialising the sentences imposed by the learned High Court judge.

(b)  However, while these offences are serious in nature, they should not be treated equally because some acts of terrorism are more heinous than others.

(c) The Sentencing Council of the United Kingdom acknowledged this fact when it issued a Definitive Guideline to Terrorism Offences for the various types of offences under its Terrorism Act 2000. The offences are classified in the guidelines by two factors: culpability and harm.

(d)  The Court held that the guidelines provide a fair and just consideration for these types of offences, and that while they are not binding on the Malaysian Court, they are persuasive enough to determine the appeal.

(e) According to the learned counsel for the Accused, his level of participation in IS must be considered by the Court in which merely passive rather than active.

(f)   Another relevant factor for the Court to consider is the trend of sentencing for the same offences committed.

(g)  In addition, the Court referred to the case of Pendakwa Raya lwn Imam Wahyudin bin Karjono dan satu lagi dan kes-kes lain [2017] 10 MLJ 582 where for an offence under Section 130J(1)(a) of the Penal Code, the Accused was sentenced to ten years imprisonment was not just for making that same oath of allegiance to IS but he was also charged for throwing and detonating a bomb at a club (MOVIDA) in Puchong, Selangor. Clearly, the Accused in this case had taken his oath of allegiance to the next level.

(h)  While the Accused in the case of Pendakwa Raya lwn Bukhori bin Che Noor Perbicaraan Jenayah No 45S0-40-03 Tahun 2017 (unreported) was sentenced to seven years in prison for allowing IS to use his personal account.

(i)  The Court then cited the case of Public Prosecutor v Aszroy bin Achoi [2018] 9 MLJ 702; [2018] 1 LNS 527, in which the Accused used his Facebook account to recruit IS sympathisers, for which he was sentenced to seven years and two years in prison, respectively, for the same two charges as in this case, but after a full trial.

(j)   The Accused pleaded guilty to the charge in the instant case, and it is common law that such a plea allows the court to reduce the sentence, as in the cases of Mohamed Abdullah Ang Swee Kang v Public Prosecutor [1988] 1 MLJ 167 and Sau Soo Kim v Public Prosecutor [1975] 2 MLJ 134.

(k)   Returning to the facts of this case, the Court decided to agree with the learned counsel for the Accused that the Accused’s involvement with the said terrorist group was passive and minimal.

(l)   The Accused did nothing more than swear allegiance and the impugned images in his phone, as rightly submitted by his counsel, were downloaded from the internet via the Telegram application, in which the Accused did nothing more than to keep them there.

(m) Given the Accused’s age, the Court cannot rule out the possibility that the Accused was unduly influenced to join the chat group ‘Gagak Hitam,’ a hipster culture popular among the youngsters.

(n)  Another relevant factor considered by the Court was the fact that the maximum punishment for the second charge was seven years in prison, which is not mandatory.

(o) The Court also affirmed that the learned High Court judge did not explain the reason for imposing five years’ imprisonment on the Accused when it was undisputed that he was a young first offender who had pleaded guilty to the charge at the first opportunity and had done nothing more than to keep the aforementioned images in his phone.

(p) As a result, the Court held that there was simply no justification for imposing such a severe, nearly maximum-sentence sentence on the Accused.

“Whoever has possession, custody or control of; or any item associated with any terrorist group or the commission of a terrorist act shall be punished with imprisonment for a term not exceeding seven years, or with fine, and shall also be liable to forfeiture of any such item.

2.     To conclude, for terrorism-related offences, imprisonment is the maximum penalty, and seven years in prison is not mandatory.