Media Statement – 11/11/2021
AGC should NOT appeal conviction of Muhammad Akmal and 5 students to seek a murder conviction and the death penalty
18 years imprisonment for killing cadet Zulfarhan is just
MADPET(Malaysians Against Death Penalty and Torture) is appalled by the fact that the Malaysian Public Prosecutor (also the Attorney General) will appeal against the High Court’s ruling to convict six students of Universiti Pertahanan Nasional Malaysia (UPNM) who were initially charged with murdering UPNM cadet officer Zulfarhan Osman Zulkarnain to culpable homicide not amounting to murder (Borneo Post, 3/11/2021). The 6 young persons were found guilty of culpable homicide not amounting to murder, were sentenced to 18 years imprisonment.
It is disturbing that the Attorney General’s Chambers(AGC) was reported wanting to appeal, possibly with the hope or intention that the appellate court will find them guilty of MURDER(section 302 Penal Code) which would result on the 6 young persons being mandatorily sentenced to death by hanging.
It must be noted that there are several killing offences in the Malaysian Penal Code. MURDER is the most serious (mandatory death penalty), and Culpable Homicide not amounting to murder under section 304(a) is 2nd most serious (maximum 30 years imprisonment).
Muhammad Akmal Zuhairi Azmal, Muhammad Azamuddin Mad Sofi, Muhammad Najib Mohd Razi, Muhammad Afif Najmudin Azahat, Mohamad Shobirin Sabri and Abdoul Hakeem Mohd Ali were found guilty of KILLING with the intention of causing death, or of causing such bodily injury as is likely to cause death, and as such was convicted for culpable homicide not amounting to murder under Section 304 (a) of the Penal Code, and were then sentenced to 18 years imprisonment, an offence that carries a maximum penalty of 30 years imprisonment.
A 18 year sentence is more than just for these first time young offenders, noting that they were 21-22 years old when the offence was committed.
Murder or Culpable Homicide have several different types
Murder is worst kind of culpable homicide. The 2 lesser forms of culpable homicide whose punishment are provided for in section 304 Penal Code, and the heading ‘culpable homicide not amounting to murder’ must not confuse us.
In some countries, like US, there are several types of MURDER, like first degree murder, 2nd degree murder, 3rd degree murder, … whereby the different types of murder attracts different sentences, with 1st degree murder having the highest sentence.
However, in Malaysia, like in most Commonwealth countries, we do not divide murder into different degrees, but we define killing offences into Murder OR Culpable homicide not amounting to murder( 2 types), and some other lesser offences. For Malaysia, the offence generally is culpable homicide
Members of the public may be confused about the law, but the Public Prosecutor should not for after all the current conviction of culpable homicide not amounting to murder is under section 304(a), which means that the courts found that their ‘.. act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death…’, and the maximum sentence for this offence ‘…imprisonment for a term which may extend to thirty years, and shall also be liable to fine..’.
However, if ‘…the act is done with the knowledge it is likely to cause death but really no intention of killing the victim…’(304(b), then the sentence for this second type culpable homicide not amounting to murder is lesser –
Court should be careful about convicting for murder, and has power to reduce charges
The Federal Court on 10/11/2021 advised High Court judges hearing murder cases to see if the accused really deserve the death sentence. The court has the discretion to reduce the murder charge to culpable homicide not amounting to murder and the accused could instead face a jail term of up to 30 years. (FMT, 10/11/2021). For murder, normally evidence of premeditation or pre-existing malice or ‘malice aforethought’ is required.
The Federal Court made these remarks in a 60-page judgment on why the Federal Court had in July reduced the murder charge faced by an American, Gerald Wayne Mickelson, over the death of his former wife at a hotel room in Kuala Lumpur five years ago, to culpable homicide not amounting to murder. The Federal Court panel of Chief Justice Tengku Maimun Tuan Mat, Mohd Zawawi Salleh and Harmindar substituted the capital punishment (death penalty) with a seven-year jail sentence.
It must be pointed out that Malaysia today in adherence to the United Nations General Assembly, which Malaysia voted in favour again in 2020, is imposing a moratorium on execution pending abolition of the death penalty. Malaysia is already taking steps towards abolition, possibly first abolishing mandatory death penalty for offences including murder thus restoring discretion to judges when it comes to sentencing.
The family and friends of the deceased Zulfarhan, whose body had burn marks and bruises, hopefully would understand that our values and principles call for forgiveness, not death by hanging for these young killers.
As such, MADPET
- Calls on the Malaysian Attorney General (Public Prosecutor) not to appeal or continue with the appeal of the conviction and the 18 year prison sentence of Muhammad Akmal Zuhairi Azmal and the 5 young people seeking a murder conviction which will lead to the imposition of the mandatory death penalty.
- Reiterate the words of the Federal Court that Judges must be cautious of convicting persons for murder, and consider other killing offences that does not result in capital punishment;
- Urges Malaysia to expedite the abolition of the death penalty, maybe starting with the abolition of the mandatory death penalty. The moratorium on execution pending abolition ought to be maintained, and
- Urge on state governments to move State Rulers to exercise their pardon powers to commute death sentence into imprisonment of the more than thousand than are on death row in Malaysia. The current government and the past governments, after all, have said that they will be abolishing the death penalty.
Charles Hector
For and on behalf of MADPET
Prosecution to appeal against Court’s ruling on Zulfarhan’s case
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Parents of UPNM cadet officer Zulfarhan Osman Zulkarnain arrive at the Kuala Lumpur High Court November 2, 2021. – Malay Mail photo
KUALA LUMPUR (Nov 3): The Attorney-General’s Chambers (AGC) will appeal against the High Court’s ruling to convict six students of Universiti Pertahanan Nasional Malaysia (UPNM) who were initially charged with murdering UPNM cadet officer Zulfarhan Osman Zulkarnain to culpable homicide not amounting to murder.
Attorney-General Tan Sri Idrus Harun when asked whether the AGC would file an appeal to restore Section 302 of the Penal Code against the accused, said: “Yes, we will file an appeal.”
The six accused escaped the gallows but were sentenced to 18 years’ jail yesterday by High Court judge Datuk Azman Abdullah after they were found guilty of culpable homicide not amounting to the murder of Zulfarhan Osman four years ago.
They are Muhammad Akmal Zuhairi Azmal, Muhammad Azamuddin Mad Sofi, Muhammad Najib Mohd Razi, Muhammad Afif Najmudin Azahat, Mohamad Shobirin Sabri and Abdoul Hakeem Mohd Ali.
Of the six accused, five were charged with the murder of Zulfarhan Osman under Section 302 of the Penal Code which carries the mandatory death penalty upon conviction, while Abdoul Hakeem was charged with abetting the murder under Section 109 of the same act, which carries a similar sentence.
The judge, in his decision, however, said that the court found all the accused guilty under Section 304 (a) of the Penal Code for causing injuries to the deceased (Zulfarhan Osman) with no intent to murder, which carries a jail term of up to 30 years and shall also be liable to a fine, upon conviction.
The court also sentenced five of the accused, except Mohamad Shobirin, and their 12 friends after finding them guilty of injuring Zulfarhan Osman. Mohamad Shobirin was previously charged with the same offence but was acquitted of the charge at the end of the prosecution’s case.
They are Mohd Hafiz Fauzan Ismail, Mohamad Lukhmanul Hakim Mohd Zain, Ahmad Shafwan Berdal, Muhammad Amirul Asraff Mala, Luqman Hakim Shamsuri Agus, Muhammad Sufi Mohd Mustapha, Noriznan Izzairi Noor Azhar, Muhamad Ashraf Abdullah, Muhammad Danial Firdaus Azmir, Muhammad Hasif Ismail, Muhammad Adib Iman Fuad Ady Sani and Mohamad Syazwan Musa.
All of them, now aged 25, committed the offence in two rooms at the Jebat dormitory block, UPNM, on May 21 and 22, 2017
Zulfarhan Osman succumbed to his injuries at Serdang Hospital on June 1, 2017.
Justice Azman in his judgment said he was satisfied that the 90 burn wounds inflicted on Zulfarhan Osman by five of the accused using a hot steam iron had caused his death, but ruled that it was not a premeditated murder.
He said after considering the testimonies of two medical experts who were a prosecution and a defence witness respecively, the court found that Zulfarhan Osman’s death was not a sudden death after being injured. – Bernama - Borneo Post, 3/11/2021
Not all murder accused deserve to be hanged, Federal Court tells trial judges
PUTRAJAYA: The Federal Court has advised High Court judges hearing murder cases to see if the accused really deserve the death sentence.
Justice Harmindar Singh Dhaliwal said since there is a myriad of factors that can lead a person to commit murder, it is good practice for a judge to satisfy himself if the facts and evidence adduced fall within any of the exceptions listed in Section 300 of the Penal Code.
The five exceptions are provocation, exceeding the right of private defence, public servant exceeding his powers, a sudden fight and consent.
The court has the discretion to reduce the murder charge to culpable homicide not amounting to murder and the accused could instead face a jail term of up to 30 years.
Harmindar said Malaysia practises the adversarial system where two parties in a criminal case would represent their clients.
“Even if there is no submission by the accused on this issue (exceptions to murder), it remains the duty of the court to ensure its decision is correct on the facts and the evidence is sustainable in law,” he said.
If it is deemed necessary and appropriate, he said, the court can insist on further submissions on any troubling issue.
“It will be salutary to remember, and we remind ourselves as well, that the twin principles of presumption of innocence and the right to a fair trial are part of our criminal justice system,” he said.
Harmindar made these remarks in a 60-page judgment on why the Federal Court had in July reduced the murder charge faced by an American, Gerald Wayne Mickelson, over the death of his former wife at a hotel room in Kuala Lumpur five years ago.
Chief Justice Tengku Maimun Tuan Mat, Mohd Zawawi Salleh and Harmindar substituted the capital punishment with a seven-year jail sentence.
Mickelson, 66, was convicted by the High Court in September 2018 in the murder of Guilda Mickelson, 61. The Court of Appeal affirmed the conviction.
Harmindar said that in this case, there was more than sufficient evidence of a sudden fight between Mickelson and Guilda.
He said there was no evidence of premeditation or pre-existing malice by Mickelson against his former wife.
“The death of the deceased was caused by the appellant (Mickelson) in the heat of passion,” he said.
He said although it was determined that Mickelson had applied excessive force leading to the death, it could not be said that he had acted in a cruel or unusual manner.
“The fight was started by the deceased and during the sudden fight, no weapons were used,” he said, adding that Mickelson was entitled to the benefit of exception 4 (sudden fight) under Section 300.
Medical evidence revealed Guilda had died of “fatal compression of the neck”, he said.
The facts of the case also revealed that the couple were married in 1982 until their divorce in 2011. However, she remained with Mickelson as she was dependent on him for her needs.
She had even followed him to Malaysia in 2013. - FMT, 10/11/2021
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