Masni Yusoff v.

Public Prosecutor

[2019] MLJU 1729

CHIA ENG YI

A161637

FIRM 9 Waktu tutorial: 12-1pm

1.0 Facts

This is a Court of Appeal case where the Appellant has been charged with committing a terrorism related
offence under s.130G (a) of the Penal Code in which he had been uploading videos and issuing statement
inciting or promoting the commission of terrorist through a Facebook account. The High Court has
convicted the Appellant for seven years of imprisonment after the Appellant pleaded guilty. Now, the
Appellant appealed against the conviction and sentence by the High Court.

2.0 Issue

Whether the sentencing of seven years is too much for the Appellant?

3.0 Appellant’s submission

In current case, the Appellant has not stated any ground to challenge the conviction but just pleaded for
leniency and submitted the same mitigating factor that had been earlier submitted in the High Court to
reduce the seven years imprisonment imposed by the High Court. In the High Court, the Appellant has
submitted that he is married with family, this is his first offence, he is a mechanic in the automotive
industry and therefore a skilled worker and his activities is confined to cyberspace only and never
received any military training overseas. At last, he is remorseful now.

4.0 Prosecutor’s submission

The DPP submitted as s.305 of Criminal Procedure Code applied, the Appellant who has been pleaded
guilty and has been convicted, shall not be given any chance of appeal except as to the extent or legality
of the sentence. Moreover, the DPP submitted that the sentence of seven years imprisonment is not
manifestly excessive in view of the maximum of 30 years imprisonment provided by the law for the said
offence and the recent trend in sentencing in similar cases.
5.0 Judgment and Rationale

The Court upheld the conviction made by the High Court Judge and dismissed the appeal and
below shall be the rationale.

Firstly, the Court stated that the it is trite law that the appellate court should not light 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 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.
The interference only come if the sentence is manifestly excessive or manifestly inadequate or if the said
court has applied the wrong sentencing principles and failed to have regard to the relevant aggravating or
mitigating factors. In the instant case, there is no error in the exercise of the sentencing discretion by the
High Court. The learned High Court Judge gave due consideration to all the mitigating factors submitted
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.

Secondly, the Court cited the case of Murad Halimuddin Bin Hassan dan satu lagi v. Pendakwa
Raya dan satu lagi rayuan1 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. This is why the Parliament had provided a very deterrent maximum
punishment of 30 years imprisonment. 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.2

Thirdly, the sentence imposed by the learned High Court Judge is consistent with the recent trend
of sentencing for the same offence. Although the sentencing trend is not an inflexible standard that must
necessarily be applied to all cases without regard to other factors. However, it provides a general guide to
determine whether a punishment is obviously disproportionate to the offence. As from the three cases
cited by the DPP, all the cases dealt with the same offence as the Appellant and has been sentenced the
learned DPP cited three unreported cases to the learned High Court Judge. These cases dealt with the
same offence and has been sentenced to six years, five years, and seven years, respectively.

1
[2018] 6 MLJ 435.
2
[1988] 1 MLJ 167.