JUDGMENT

Azman Abdullah J:

Case Background

[1] The accused was charged in this court with two counts of offences. The first count relates to an offence in contravention of s 130J(1)(a) of the Penal Code of giving support to a terrorist group of "Islamic State" by making loyalty pledge (Bai'ah). The second count refers to a contravention of s 130JB(1)(a) of the Penal Code for possessing nine photographs relating to the said group.

[2] As these offending sections fall under the First Schedule of the Security Offences (Special Measures) Act 2012 ["SOSMA"] both charges were tried in the High court and the accused was not given bail.

[3] The prosecution has called one protected witness PW4 to establish their case along with 11 other witnesses pursuant to the provisions in SOSMA.

[4] Besides PW1- Inspector Mohd Fahmi bin Mohamad Tarmizi from the Royal Malaysian Police Special Branch Counter Terrorism Division [E8] who was a complainant as their main witness, the prosecution also called expert witnesses on terrorist group of Islamic State [IS], PW8 Ustaz Ahmad El Muhammady bin Uthman El Muhammady and PW9 Dr Ahmad Najaa' bin Mohktar.

[5] At the end of trial, this court found the accused guilty of the above two charges and passed sentence of seven years' imprisonment for the first charge and two years' imprisonment for the second charge. The sentence was ordered to run concurrently from the date of arrest 28 September 2016.

[6] Aggrieved with the conviction and sentence, the accused filed a Notice of Appeal, whereas the prosecution filed an appeal on sentence for both charges. These grounds of judgment are prepared for both appeals by the accused as well as the prosecution.

The Charges

First Charge

"Bahawa kamu pada 30 Mac 2016 jam lebih kurang 8.11 pagi, di No 159, Lorong Senangin 2/3, Taman Senangin, di dalam daerah Kulim, dalam Negeri Kedah telah memberi sokongan dengan cara berbaiah kepada kumpulan pengganas Islamic State menggunakan nama "Razis" di dalam kumpulan aplikasi telegram "Gagak Hitam" dengan menggunakan nombor telefon 0179833634, dan oleh yang demikian kamu telah melakukan suatu kesalahan di bawah s 130J(1)(a) Kanun Keseksaan dan boleh dihukum dibawah peruntukan sama."

Second Charge

"Bahawa kamu pada 28 September 2016 jam lebih kurang 7.20 malam di alamat di No 159, Lorong Senangin 2/3, Taman Senangin, di dalam daerah Kulim, dalam Negeri Kedah telah memiliki 6 keping imej gambar di dalam telefon bimbit jenis OPPO Model 3006 [IMEI 1:865966021504259:IMEI 2; 865966021504242] dan 3 keping imej gambar di dalam computer riba jenis Acer Aspire v. [NXMAVSM00132700D4B7600] yang merupakan item yang berkaitan dengan Kumpulan Pengganas Islamic State [IS] dan dengan itu kamu telah melakukan satu kesalahan di bawah s 130JB(1)(a) Kanun Keseksaan dan boleh dihukum di bawah peruntukan yang sama."

The Information

[7] On 30 March 2016, at about 8.11 am, the Royal Malaysian Police Special Branch Counter-Terrorism Division [E8] received an information in regard to the accused making loyalty pledge [berbai'ah] supporting the terrorist group of Islamic State through protected witness, PW4.

Allowing PW4 As Protected Witness Pursuant To Section 14 SOSMA

[8] PW4 was allowed to give evidence through video link without being physically present in the court room. Whist giving evidence, his appearance could not be seen and only his voice could be heard by the prosecuting deputy prosecutor and both the accused and his counsel whereas the judge could see him and hear his evidence through his computer screen.

[9] As to the application under s 14 Security Offences (Special Measures) Act 2012 [SOSMA], the Deputy Public Prosecutor wrote a piece of letter which was marked as "RAHSIA" and sent it privately to the trial judge on 16 August 2017 notifying their intention to call a protected witness in the trial.

[10] Upon receipt of the letter, this court on 12 October 2017 proceeded to hold an inquiry in camera in accordance with the provision of s 14(2) of SOSMA 2012 by questio