Did the Court of Appeal ERR when it maintained the conviction of the 12 under Section 330 of the Penal Code, i.e. Voluntarily causing hurt to extort confession or to compel restoration of property? This Section 330 and 332(grievous hurt) is the ODD section, that really ought to be used against the police(and other law enforcement officers) for the use of 'torture' against suspects of crimes - and NEVER for lay persons, who have no rights whatsoever to resort to 'SELF-HELP' against alleged crime suspects.
330 Voluntarily causing hurt to extort confession or to compel restoration of property
Whoever voluntarily causes hurt for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer, or any person interested in the sufferer, to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine.
ILLUSTRATIONS
(a) A, a police officer, tortures Z in order to induce Z to confess that he committed a crime. A is guilty of an offence under this section.
(b) A, a police officer, tortures B to induce him to point out where certain stolen property is deposited. A is guilty of an offence under this section.
(c) A, a revenue officer, tortures Z in order to compel him to confess to a pretended offence against the excise laws. A is guilty of an offence under this section.
in the High Court case, then Judge Amelia Tee Abdullah, said
[28] On this issue as raised by the appellants, the court has carefully scrutinised the provision of s. 330 of the Penal Code. The offence under this section is one of causing hurt in order to obtain information or confession having reference to an offence or misconduct. As is stated in Ratanlal & Dhirajlal's Law of Crimes, 25th edn. at p. 1693:
The principal object of this section is to prevent torture by the police. But this section covers every kind of torture for whatever purpose it may be intended.
[29] The key ingredient of an offence under s. 330 is the causing of hurt. The hurt may be caused for various purposes, for extorting a confession or to obtain information, to restore or cause restoration of any property or valuable security or to satisfy any claim or demand. The court is of the considered view that there is no necessity that a confession should indeed have been successfully extorted nor is it material that the person who had caused the hurt was not a person who was legally capable of extorting a confession in the sense that such a confession, even if extorted, would not have been admissible in court. To decide otherwise would be to go against the very spirit and intention of that section, namely to prevent the torture of detained persons by persons in a position of authority. If it can be argued that persons below the rank of inspector could not commit an offence under s. 330 that might well take away the weight of that section against those below that rank who cause hurt whilst attempting to extort a confession or to gain information which may lead to the detection of an offence. - PP v. ZULKIPPLY TAIB & ORS AND OTHER CASES[2014] 5 CLJ 365
In another case, K C VOHRAH J said,
'Lord Lawton in the Court of Appeal case of R v. Sarjeant [1974] 60 Cr App R 74, in giving the judgment of the court referred to the classical principle of retribution in sentencing (he did also refer to the other principles of deterrence, prevention and rehabilitation). His Lordship said that the old testament concept of an eye for an eye and a tooth for a tooth no longer plays any part in criminal law and continued:
There is, however, another aspect of retribution which is overlooked: it is that society, through the courts, must show its abhorrence of particular types of crime, and the only way in which they the courts can do this is by the sentence they pass. The courts do not have to reflect public opinion. On the other hand, courts must not disregard it. Perhaps the main duty of the court is lead public opinion. (emphasis added). On deterrence Lord Lawton remarked that there are "two aspects of deterrence - deterrence of the offender and deterrence of likely offenders". Deterrence to likely offenders is another aspect of public interest.
What cannot be gainsaid is that an offence under s. 330 is a very serious offence; it is one of the most serious offences known in law and the court must show its abhorrence of it; and the public interest requires the court to pass a deterrent sentence on the offender to deter likely offenders. As was pointed out by Young CJ in a revision case in Lal Muhammad & Anor v. Emperor [1936] 37 Cr LJ 811 the causing of hurt by responsible Police Officers engaged in the investigation of a crime is "one of the most serious offences known to the law" and "deterrent punishment should be inflicted on the offender..." The learned Chief Justice underlined his reason why deterrent punishment should be inflicted:
... The result of third degree methods or of actual torture or beating such as in this case must be that innocent persons might well be convicted, confessions being forced from them which are false. In almost every case in which a confession is recorded, in Criminal Courts, it is alleged by the defence that the Police have resorted to methods such as these. It is seldom, however, that an offence of this nature is or can be proved. It clearly is the duty of the Courts when a case of this kind is proved to pass sentences which may have a deterrent effect. In Lai Kim Hon Suffian LP after affirming the sentences passed by the trial judge but stating this should not be regarded as a precedent in future cases continued:
Members of the Force who do their duty in accordance with the law will receive our and public support and encouragement; but those who treat suspects in a cruel manner can expect to receive only very severe punishments from the courts. Parliament and the public will not allow a Savak to be established here, bringing disrepute to those responsible for the government and for the administration of justice". (emphasis added) It is unfortunate that this serious aspect of the public interest was not drawn to the attention of the learned judge before she imposed the sentences that she did and it is quite clear she also missed the strong call for stiffer sentences in the future and the reasons why they were needed.
There is another compelling consideration to take into account. Police officers are custodians of the law and they have to uphold, not breach, the law. By subjecting members of the public to acts of violence they in fact infract the very law that prohibits the inflicting of violence by any person on another person and they incalculably undermine and subvert the confidence and trust placed by the public in our police force. The judge should have considered the grave injury done to the police force and to the public's trust in it.
The judge of the Sessions Court also erred in principle when she said that the offences were committed by the two respondents while they were performing their official duties and treated that as a mitigating factor. Overzealousness which involves such blatant breaching of the law with the use of violence can never be a mitigating factor.
Clearly the courts are under a duty, and in the larger interest of substantial justice, to show their abhorrence of this type of crime. While the judge of the Sessions Court did state that she took into account public interest, that, unfortunately, was not sufficiently reflected in the sentences which she passed on the two respondents. - PP v. MUHARI MOHD JANI & ANOR [1999] 8 CLJ 430
Sadly, there are not many reported criminal cases on Section 330 and/or 331 - when there are so many allegations about 'torture' in police custody, and/or the custody of law enforcement. It is sad that many a victim are simply 'TOO FEARFUL' about making police reports against police or law enforcement officers ...
THUS, it is SUBMITTED that the High Court, and now the Court of Appeal ERRED in the conviction of the 12 Others, involved in the 'torture' that resulted in the death of of navy cadet Zulfarhan Osman Zulkarnain of Universiti Pertahanan Nasional Malaysia (UPNM) seven years ago.
For, the very first time, section 330 was used against persons, not being POLICE or law enforcement' in this case of the death of Zulfarhan - and it was WRONG.
Whatever reason, it was wrong - they were not POLICE or person in authority who has the right to investigate any alleged crime suspect.
Does using section 330 or 331 - 'legitimize' the investigation or 'torture' of Lay-Persons? Hope would have been that the Court of Appeal would have corrected the ERROR - but sadly, it validated it by increasing the sentence under s.330 from 3 years to 4 years. Maybe, no one, not the accused lawyers or the Public Prosecutor raised this CRUCIAL point...but it cannot remain as it undermine the very purpose for Section 330 and 331 of the Penal Code - and more lay persons(without the authority to investigate suspected criminals) may be charged - as the Court of Appeal decision becomes a 'legal precedent' ????
WHY? The said 12 should never have been charged and/or convicted under section 330 of the Penal Code - as this was meant for police and law enforcement using 'torture' during investigations.
Why were they NOT charged for causing'hurt' and not 'grievous hurt'?
Here was a case, where he was tortured by kickings, beatings, etc by a lot of persons on 21st, and 22nd of May, and died on the 10th day(1/6/2024)
Grievious Hurt include '(h) any hurt which endangers life, or which causes the sufferer to be, during the space of ten days, in severe bodily pain, or unable to follow his ordinary pursuits.'
Yes, it talks about 'severe bodily pain', and also 'unable to follow his ordinary pursuits' - but here he died.
It is almost impossible to determine the EXACT cause of death in such situation - was it the beatings - or was it only the torture using the steam iron? Or was it both?
In terms of crimes - the sentence need not be all the SAME - it may be lesser depending on the 'involvement' of the different criminals, and so, the courts will consider each every persons individual action/omissions and determine an appropriate sentence for each accordingly...
Let's look at the definition of Grievous Hurt in the Penal Code? And the fact that he died reasonably can justify charging them for grievous hurt, does it not
320 Grievous hurt (Penal Code)
The following kinds of hurt only are designated as "grievous":
(a) emasculation;
(b) permanent privation of the sight of either eye;
(c) permanent privation of the hearing of either ear;
(d) privation of any member or joint;
(e) destruction or permanent impairing of the powers of any member or joint;
(f) permanent disfiguration of the head or face;
(g) fracture or dislocation of a bone;
(h) any hurt which endangers life, or which causes the sufferer to be, during the space of ten days, in severe bodily pain, or unable to follow his ordinary pursuits.
Note also, that vide PENAL CODE (AMENDMENT) ACT 2014, section 320(h) was amended - The Code is amended in paragraph 320(h), by substituting for the words “twenty days” the words “ten days”.
In this case, the victim DIED.
Hence, the other 12 could also have been charged for CULPABLE HOMICIDE not amounting to murder.
ONE problem that emerges in the Penal Code for this kind of offences, is the fact that Parliament has bound the hands of the Court - by fixing a rather low maximum sentence for such crimes. And, maybe Prosecution and Court really felt that these criminals deserved to be punished with a HIGHER SENTENCE for the part they played that resulted in the DEATH of a fellow University Students - and that is why they resorted to charging and/or convicting them under s.330 - which provides for a sentence of 'imprisonment for a term which may extend to seven years, and shall also be liable to fine.'vand if charged under section 331, the sentence would have been 'imprisonment for a term which may extend to ten years, and shall also be liable to fine.'
Other than that, for causing just hurt - it is now under s. 323 Punishment for voluntarily causing hurts, it is just 'imprisonment for a term which may extend to one year or with fine which may extend to two thousand ringgit or with both.'
And for causing grievous hurt -325 Punishment for voluntarily causing grievous hurt, it was '...imprisonment for a term which may extend to seven years, and shall also be liable to fine.'
Section 325 may have been used for those involved in torture that happened on 22nd, but maybe not for those who were involved in torture on 21st - as the suffering/death was limited to just 10 days after the action causing hurt happened. But then, the law requires that 'causes the sufferer to be, during the space of ten days, in severe bodily pain, or unable to follow his ordinary pursuits' - and our deceased victim would reasonably be said to be ' in severe bodily pain, or unable to follow his ordinary pursuits' ever since the torture was inflicted.
So rather that convicting under Section 330, the 12 should have been convicted under section 325. But, they could also be charged for CULPABLE Homicide.
Maybe, these laws need to be amended - to increasing the maximum sentence, and not placing any minimum sentence - Thus, allowing the COURT to decided the appropriate sentence - limiting sentence of voluntarily causing HURT to just 1 year may no longer be good enough..
See the following post that also has the HIGH Court Judgment
No to death by hanging for 6 former Malaysian Armed Forces University students - Should the other 12 be charged for culpable homicide?
Extract From Court of Appeal Judgment
Rayuan OKT – OKT 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 dan Rayuan Pendakwaan Terhadap Hukuman.
[214] Hukuman yang boleh dikenakan bagi kesalahan di bawah seksyenb330 Kanun Keseksaan ialah penjara sehingga 7 tahun dan juga denda.
[215] Hakim Bicara telah menjatuhkan hukuman 3 tahun penjara terhadap OKT - OKT 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 dan 19 setelah mengambilkira mitigasi OKT - OKT dan faktor-faktor yang memberatkan hukuman. Hakim Bicara telah merujuk kepada kes Pendakwa Raya v Bukhari Mohd Jani [1999] 8 CL J 430. Dalam kes Bukhari, tertuduh mengaku salah kepada pertuduhan seksyen 330 KK dan Mahkamah Tinggi mengenakan hukuman 3 tahun penjara.
[216] Di hadapan kami, OKT - OKT ini merayu supaya hukuman 3 tahun penjara itu dikurangkan kepada suatu hukuman yang lebih ringan di bawah seksyen 293 atau 294 Kanun Prosedur Jenayah iaitu diberi ikat jamin berkelakuan baik.
[217] Pendakwaan merayu supaya hukuman yang lebih berat dikenakan.
[218] Pada hemat kami, hukuman di bawah seksyen 293 atau 294 Kanun Prosedur Jenayah sama sekali tidak boleh dibenarkan kerana kesalahan jenayah yang dilakukan sangat berat dan serius. Di hadapan mahkamah, selain daripada keterangan SP13, OKT 1 setuju beliau tiada bukti simati mencuri laptop. OKT 1 juga setuju simati tidak melakukan apa-apa kesalahan terhadap OKT 1. Maka, OKT 1 dan OKT 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 dan 19 tidak ada sebab untuk memeras pengakuan bersalah daripada simati dan juga tidak ada sebab untuk memukul simati.
88
Tetapi, seramai 17 orang pelajar telah memukul simati dua hari berturut- turut.[219] Apa-apa kesusahan yang dialami oleh OKT - OKT seperti dibuang dari universiti dan sebagainya bukanlah faktor untuk meringankan hukuman. OKT - OKT harus menanggung akibat daripada perbuatan mereka.
[220] Dari segi undang-undang, hukuman yang dikenakan bukan sahaja bertujuan untuk menghukum pelaku, tetapi juga untuk mencegah pelajar sekolah atau universiti yang mengamalkan budaya buli supaya tidak mengulangi perbuatan yang serupa.
[221] Dalam kes ini, kami sebulat suara mendapati faktor-faktor yang memberatkan hukuman mengatasi faktor-faktor peribadi OKT - OKT.
Pada hemat kami, hukuman yang wajar ialah 4 tahun penjara. Oleh itu, hukuman penjara 3 tahun diketepikan dan diganti dengan hukuman 4 tahun penjara dari tarikh sabitan. {222] Oleh itu, rayuan OKT – OKT 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 dan 19 atas hukuman ditolak danrayuan Pendakwa Raya atas hukuman dibenarkan.
My perusal of the Judgment indicates that the Court of Appeal - FAILED to consider the appropriateness of maintaining the conviction under s. 330 Penal Code. It only focused on the sentence - and this was WRONG.
The effect is a BAD PRECEDENCE
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