Former Internal Security Act (ISA) detainee Yazid Sufaat and cafetaria helper Muhammad Hilmi Hasim will have to go back to the High Court to face security charges of respectively promoting and abetting in promoting terrorist activities in Syria.

This is because a three-member panel of the Court of Appeal led by Justice Abu Samah Nordin has allowed the prosecution’s appeal to set aside their acquittal on the charges.

“The charges against the respondents (Yazid and Muhammad Hilmi) are within the scope of Article 149 of the federal constitution,” ruled Justice Abu Samah.

He said the charges preferred against Yazid and Muhammad Hilmi did not refer to acts of terrorism outside of Malaysia.

Justice Abu Samah said their (Yazid and Muhammad Hilmi’s) counsel had conceded that the offence was committed within Malaysia and threats to the country’s security can come within Malaysia or outside Malaysia.

“We are of the view that the High Court judge erred in misconstruing the charges against the respondents,” he said.

The panel which also comprised Justices Azahar Mohamed and Mohd Zawawi Salleh ordered the case to be remitted back to the High Court to be heard before another judge.

The court also directed the case be set for mention at the High Court on Monday (June 24).

Justice Abu Samah also granted deputy public prosecutor Hanafiah Zakaria’s application to remand the duo at the Sungai Buloh prison.

He also gave an order for a stay of the proceedings at the High Court applied for by lawyer Amer Hamzah Arshad representing the men, pending appeal of today’s decision to the Federal Court.

The panel also allowed Amer Hamzah’s application for him and the duo’s families to have a 15 to 20 minutes access to communicate with them with regard to today’s court decision and to seek the next course of action.

He had earlier told the court that he was unable to meet Yazid and Muhammad Hilmi.

Justice Abu Samah also fixed Aug 5 for mention of the case of religious teacher Halimah Hussein who was also acquitted by the High Court on a charge of abetment to promote terrorist activies in Syria.

The Court of Appeal had issued a warrant of arrest on last May 31 against her when she failed to attend court.

On May 20, the High Court in Kuala Lumpur acquitted and discharged Yazid, Muhammad Hilmi and Halimah after allowing their application to have the charges against them struck out.

High Court judge Kamardin Hashim ruled that the Security Offences (Special Measures) Act 2012 (Sosma) could not be used against the three, as it was ultra vires Article 149 of the federal constitution.

‘Charge related to terrorism in Syria’

He had said the charge was related to terrorism occurring in Syria and therefore, it was not under the scope of Article 149 and Sosma could not be used as a procedure to prove the charge against Yazid, 49, Muhammad Hilmi, 33, and Halimah, 52.

Yazid, a cafeteria operator at the Jalan Duta Court Complex, was charged with promoting an ideology intended to incite the people of Syria to commit terrorist acts while his friend Halimah Hussein and Muhammad Hilmi were charged with abetting him.

They were charged with committing the offences at a house in Taman Bukit Ampang between Aug 1 and Oct 20, last year. Yazid was charged under Section 130G(a) of the Penal Code (Act 574) while Halimah and Muhammad Hilmi were charged under Section 109, both of which carry sentences of up to 30 years in prison and fine, upon conviction.

Earlier, Hanafiah had argued that the High Court judge erred in law to acquit and discharge the duo.

He said it was mandatory to adopt the procedure under Sosma which was a specific procedural law enacted with the sole purpose to govern a trial for security offences.

Amer Hamzah, however, said the prosecution must use the Evidence Act and Criminal Procedure Code to prove its case and not rely on the very restrictive Sosma.

- Bernama