al Maunah

PP V. MOHD AMIN MOHD RAZALI & ORS

HIGH COURT MALAYA, KUALA LUMPURZULKEFLI AHMAD MAKINUDIN J[CRIMINAL TRIAL NO: 45-34-2000]18 JANUARY 2002
CRIMINAL LAW:Penal Code - Section 121 - Waging war against the Yang di-Pertuan Agong - Whether charge defective - Whether accused had knowledge of offence - Whether role of each accused relevant - Whether there was duress - Whether accused labouring under mistake of fact or law
CRIMINAL PROCEDURE:Prosecution - Attorney General - Powers of - Discretion to prefer alternative charge against certain accused - Whether abuse of process of court
CRIMINAL PROCEDURE:Sentence - Principles of sentencing - Minimum and maximum sentence prescribed under s. 121 of the Penal Code - Duty of court to act accordingly - Whether public interest outweighs interest of accused

The accused persons were charged under s. 121 of the Penal Code ('the Code') for committing the offence of waging war against the Yang di-Pertuan Agong. They however contended that the charge was defective as: (1) there was no indication by the prosecution which kind of waging of war was intended; (2) the word "jointly" was omitted in the charge; and (3) the alternative charge offered to fourteen of the accused persons and accepted by ten of them amounted to an abuse of the process of court as the Attorney General should have preferred the same alternative charge against the present accused persons. They also averred that: (1) the prosecution failed to show the element of mens rea in the commission of the offence; (2) there was no evidence of the role of each accused; (3) that they were under duress to follow directions; and (4) that they were labouring under a mistake when they committed the offence.

Held:

[1] Based on arts. 39 and 40(1) of the Federal Constitution a reference to the words "wages war against the Yang di-Pertuan Agong" appearing in s. 121 of the Penal Code should be interpreted to mean waging war against the Government of Malaysia in the light of the fact that the executive authority of the Federation is vested in the Yang di-Pertuan Agong who acts on the advice of the Cabinet or of a minister acting under the general authority of the Cabinet. (pp 291 i-292 a)

[1a] The omission to state the word "jointly" as such in the charge by the prosecution would have no effect on the validity of the charge as the offence under s. 121 of the Code does not differentiate between the principal and accessories and their respective roles; everyone is equally culpable. (p 294 b-c)

[1b] Knowledge, like intention, is a question of fact which may be inferred from the surrounding circumstances of the case and looking at the surrounding circumstances of this case, it would be unreasonable and untenable to make a finding that none of the accused persons in this case knew of their intention to stage an insurrection or a struggle to set up an Islamic state. The action of the accused persons in remaining to fight against the members of the security forces showed that they had the mens rea to pursue the struggle along with their leader. (pp 326 g-h & 328 c)

[1c] It does not matter how minor the role of an accused person is for an offence under s. 121 of the Code as the law makes no distinction between the person who was the mastermind or a cook. All are responsible for the treasonable act as long as they formed part of the group and knew the object of the general nature which was to wage war against the government in the name of "jihad". (p 358 e-f)

[1d] There was no such element of threat or duress made against the accused persons that could affect them in deciding their actions. (p 360 h)

[1e] The contention that the accused persons were labouring under a mistake of fact under s. 79 of the Penal Code, or under common law, was unreasonable as the surrounding circumstances of the case would render their belief unjustified. (p 361 f)

[2] The attorney general as the public prosecutor is given a wide discretion over the control and direction of all criminal proceedings and can decide to prefer a charge for a less serious offence when there is evidence of a more serious offence. It would not be an abuse of process for the prosecution to proceed with the principal charge under s. 121 of the Code against all nineteen persons presently on trial if the prosecution finds that there was ample evidence to support such a conviction on that principal charge. (pp 297 i & 298 d)

[3]Section 121 of the Penal Code gives the court the discretion to pass only a sentence of death or life imprisonment on an accused person convicted for such an offence and the court must act in accordance with the relevant sentencing principles and guidelines. (p 363 a-b)

[3a] Public interest should outweigh the interest of the accused persons as the offence committed appears to be amongst the most serious under the Code, and all the accused persons had been involved either directly or indirectly in realising the objectives and the mission of the Al-Ma'unah group in overthrowing the government of the day by force or violence in the name of "jihad". (p 365 f-g)