Media Statement – 24/7/2024
No to death by hanging for 6 former Malaysian Armed Forces University students – Sentence them instead to 30 – 40 years imprisonment, which is more humane and consistent with Malaysia’s current stance on death penalty and executions
Court should never endorse ‘self-help’ actions against suspected criminals by lay persons, and take action against Clinic for failure to report victim of suspected crime
As human beings and Malaysians, we do not want to anymore kill or murder anyone, even those that commit the most grievous of crimes. It is a folly to believe that we are innocent, because it is our courts that sentenced someone to death by hanging, and the State carried out the execution. As Malaysians, more so in a democracy, we are responsible for the laws of the land, and the acts of intentionally killing of anyone by the State.
MADPET (Malaysians Against Death Penalty and Torture) verily believes that justly, the Court of Appeal should not have, in the case of the killing of navy cadet Zulfarhan Osman Zulkarnain of Universiti Pertahanan Nasional Malaysia (UPNM) seven years ago, sentenced the 6, being Muhammad Akmal Zuhairi Azmal, Muhammad Azamuddin Mad Sofi, Muhammad Najib Mohd Razi, Muhammad Afif Najmudin Azahat, Mohamad Shobirin Sabri, and Abdoul Hakeem Mohd Ali to death. The court in this case, was reported saying, “Therefore, we unanimously decide that a single sentence is appropriate for all six defendants, and they shall be taken to a place of execution where they will be sentenced to death by hanging.”(Malay Mail, 23/7/2024).
For the crime of murder, no more does the Malaysian courts and Judges have no choice but to sentence the convicted to mandatory death penalty as it was in the past. Now, courts have the option to impose the alternative sentence of long-time imprisonment and whipping.
MADPET hopes that Malaysian Courts demonstrate justice and compassion and stop using the death penalty.
After 4/7/2023, There Is an Alternative Sentence, Other Than Death, For Murder
After the Abolition Of Mandatory Death Penalty Act 2023 (AMDP Act 2023) came into force on 4/7/2023, the sentence for murder (Section 302 Penal Code) was no longer the mandatory death penalty, it became it ‘shall be punished with death or imprisonment for a term of not less than thirty years but not exceeding forty years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes.’
Beside sentencing someone to death by hanging, there now is an alternative sentence available that does not involve the deprivation of life.
Alternative Sentence Available For Even MURDER Committed Before Mandatory Death Penalty Abolished.
Section 39 of the AMDP Act 2023 states that ‘Upon the coming into operation of this Act, if a person is convicted by any court for the commission of an offence under section 121, 121A, 302 or 364 or paragraph 130C(1)(a), 130I(a), 130N(a), 130O(1)(aa), 130QA(a), 130ZB(a) or 374A(a) of the Code, the person, whether at a trial or on an appeal, shall be sentenced in accordance with the provisions of the Code as amended by this Act even though the offence was committed before the date of coming into operation of this Act.’
This means that the new sentence applies for all ongoing trials and appeals, and it did not matter when the crime was committed.
This meant that when the Court of Appeal, allowed the Appeal on 23/7/2024 in the case of the killing of navy cadet Zulfarhan Osman, and found the 6 guilty of murder (s. 302), the Court did not have to sentence them to death, but had the option to impose the alternative sentence of ‘imprisonment for a term of not less than thirty years but not exceeding forty years’ plus ‘whipping of not less than twelve strokes’
In this case, the court could have even sentenced the 6 to 40 years imprisonment, and these about 21 year old young adults when they committed the crime, would come out of prison when they are over 60 years old. This would be just.
Even for Murder, Courts Should Justly Avoid Death Sentence
In this case, there were about 18 others, then University Students, who were involved in the torture of the late navy cadet Zulfarhan Osman for over 2 days, and at the end, 5 took turns ‘pressing a steam iron on the entire body of the deceased (Zulfarhan), including his private parts, while one Abdul Hakeem was complicit in inciting and instructing the 5.
After the end of torture on the 22nd, Zulfarhan sadly passed away on 1/6/2017.
Whilst the 6, involved in the torture in the later stage using the steam iron, were sentenced to death, it is ironical that the other 12 only ended up with a sentence of 4 years imprisonment. They ought to have received a higher sentence as it is hard to say that their earlier torture did not contribute to the death.
Why were the other 12 NOT charged for culpable homicide not amounting to murder? SELF-HELP against suspected criminals by lay persons cannot be allowed.
Ironically, the 12 others were convicted Section 330 of the Penal Code -Voluntarily causing hurt to extort confession or to compel restoration of property, which is an offence prescribed usually for law enforcement. The 12 were just fellow students – not police or law enforcement. They have NO RIGHT to to extort confession or to compel restoration of property.
The law prohibits ‘self help’ when a crime is suspected? Reports must be made to the relevant law enforcement authorities when another is suspected of a crime.
Hence, to convict under Section 330 may be seen as an acceptance of ‘self-help’ by lay persons, including the ‘torture’ of persons suspected of a crime by persons, who are not legally empowered to enforce the law.
Should the 12 not have been charged, tried and convicted for the offence of culpable homicide not amounting to murder?
More so, since it would have been most difficult to establish whether it was the earlier torture, that involved kicking and beatings, or the later ‘steam iron’ torture that caused the death?
Section 330 should never be used for anyone other than police or law enforcement officers.
Why has no action been taken yet against the Military Hospital and the Clinic with regard the death?
A perusal of the High Court judgment, revealed that Rumah Sakit Angkatan Tentera (RSAT)/Military Hospital was allegedly informed on 23rd, a day after the 2-day torture ended, but failed to act.
The judgment also revealed that the deceased was allegedly then taken to the As-Salam Clinic for treatment on 27/5/2017, and for another follow-up treatment at the same clinic the following day – but the Clinic failed to inform the authorities of the crime. Surely, the clinic must have suspected that the patient was a victim of a crime, and should have immediately informed the police?
Should not action be taken against the Hospital and the Clinic, for if they had acted, death could have been avoided?
The deceased passed away on 1/6/2017, several days after the torture.
To sentence 6 to death, but the other 12 to just 4 years imprisonment may be a miscarriage of justice, or inadequate administration of justice. The failure of the 12 to immediately inform the authorities should also be a consideration – was it acquiescence to the ongoing torture that ended with death?
All responsible for causing the death should be held accountable.
Malaysia – Moratorium on Executions Pending Abolition of Death Penalty
Malaysia, since 2018 have committed to a moratorium on executions pending the abolition of the death penalty. Malaysia voted in favour in the United Nations General Assembly Resolution 73/175 of 17 December 2018, 75/183 of 16 December 2020 and 77/222 of 15 December 2022. Therefore, these resolutions were supported by the post GE14 Pakatan Harapan Government in 2018, the Perikatan Nasional government in 2020, and Prime Minister Anwar Ibrahim’s Pakatan Harapan led-coalition (also known as ‘Unity Government) in 2022.
Opposition and Government Parties for Abolition Ultimately – So ABOLITION Now
For, as long as Malaysia retains the death penalty in its laws, there is always a risk that persons will continue to be sentenced to death, and as such, MADPET calls for the total abolition of the death penalty.
Thus, in Malaysia, currently both the ruling parties in government, and the Opposition parties are for the ultimate abolition of the death penalty, and so, MADPET calls on Malaysia to take the next step after the abolition of the mandatory death penalty, to now totally abolish the death penalty.
Therefore,
MADPET calls for the Public Prosecutor, and/or the convicted 6, to appeal this decision of the Court of Appeal, with a view of changing the ‘death by hanging’ sentence for murder to the alternative sentence of long-term imprisonment.
MADPET calls for the Public Prosecutor to appeal this decision of the Court of Appeal, with a view of also reviewing the conviction of the 12 under Section 330 Penal Code, and to consider charging them for culpable homicide not amounting to murder. Self-help in punishing criminal suspects cannot be endorsed, and certainly not by a court of law.
MADPET also calls for the Public Prosecutor to consider taking actions against the Rumah Sakit Angkatan Tentera(RSAT)/Military Hospital and the As-Salam Clinic, including also relevant staff in these institutions, for the actions/omissions with regard to this death. Surely, doctors and medical facilities are duty bound to report to relevant law enforcement when they come across a possible victim of crime.
MADPET reiterates its call for the abolition of the death penalty, and for the maintenance of a moratorium on executions pending abolition.
MADPET also reiterates its call for the abolition of the inhumane corporal punishment of whipping, that is now provided for in Malaysia’s criminal laws.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
#####
Note:
Extract from the relevant High Court Judgment [2024] 1 CLJ 795
‘Ringkasan Fakta Kes Pendakwaan
[17] Si mati, ZF, adalah pelajar UPNM, menginap di Asrama Jebat di bilik B-06. ZF telah disyaki mencuri sebuah laptop milik T1 di bilik asrama yang lain. Pada 20 Mei 2017 jam 9.30 malam, SP25 (rakan sebilik ZF), telah diminta oleh T1 untuk mencari laptop T1 di loker ZF dan di sekitar bilik ZF kerana T1 menuduh ZF mencuri laptopnya. SP25 mencari laptop itu tetapi tidak dijumpai. Menurut SP25, rakan sebilik ZF, iaitu T18, menyatakan bahawa bapanya, SP13, berkebolehan mencari barang hilang mengikut perubatan Islam. SP13 selepas dihubungi oleh anaknya T18, telah membuat solat hajat dan mendapat firasat bahawa ZF yang telah mengambil laptop. Ini membuatkan T1 menjadi sangat marah.
[18] Pada jam lebih kurang 1 pagi, masuk ke tarikh 21 Mei 2017, semasa ZF sedang tidur di biliknya, ZF telah dikejutkan oleh T1 dan SP20 dan ZF diarahkan pergi ke bilik 3-05. Di bilik ini, ZF telah disoal siasat oleh T1 dan telah dipukul oleh T1, T7, T9, T11 dan T12. ZF pada masa itu hanya berseluar tanpa baju. Walaupun ZF dipukul beramai-ramai, namun ZF masih tidak mengaku mencuri laptop T1.
[19] Pada sebelah pagi hari tersebut, ZF tidak hadir roll call. ZF kemudian dilihat berada di biliknya pada jam 6.30 petang, berpakaian sukan, berkeadaan lemah dan sakit tangan sehingga memerlukan bantuan SP25 untuk memakai baju.
[20] Selepas dipukul, di bilik yang sama dari jam 4.45 pagi sehingga azan subuh berkumandang jam 5.45 pagi, ZF telah dicucuh atau ditekap dengan seterika wap sambil disoal siasat. Pada masa ini, ramai pelajar telah bersurai dan hanya tinggal T1 hingga T6. Tertuduh-tertuduh, T1 hingga T5, telah mencucuh seterika panas ke badan ZF bergilir-gilir dan T6 yang mengarahkan lima tertuduh ini supaya ZF dicucuh. ZF menjerit dan menggelupur kesakitan setiap kali dicucuh dengan seterika. Pada masa itu, ZF hanya memakai boxer, tertiarap di lantai dengan kedua-dua tangan diikat.
[21] Selepas dicucuh dengan seterika pada 22hb dan beberapa hari ZF tetap berada di bilik 4-10. T1 dan T2 ada bersama mengawal ZF dan tidak meninggalkan ZF tanpa ada salah seorang atau lebih seorang tertuduh mengawalnya. Keadaan kecederaan ZF akibat ditekap seterika wap pada badannya menjadi menggelembung dan ada tompok-tompok kehitaman di badan dan sedikit darah di kulitnya, di seluruh badan. ZF dilihat tidur di atas katil dan berselimut. T1 hingga T4 bercakap mahu merawat sendiri ZF.
[22] Kawan ZF, SP23 bersama T8 merasa kasihan kepada ZF telah menulis surat layang meminta ZF diselamatkan dan pada 23 Mei 2017, SP23 telah menyelitkan surat itu di hadapan Rumah Sakit Angkatan Tentera (RSAT). Malangnya, tiada tindakan diambil untuk memberi bantuan ke atas ZF walaupun surat layang telah dibuat, malah surat layang ini telah tular dan diketahui oleh T1. T1 setelah mengetahui surat layang itu lantas telah membawa ZF ke bilik asrama yang lain. Selepas itu, ZF dibawa keluar dari UPNM dan menginap di hotel di Bangi dan membawa ZF ke Klinik As- Salam pada 27 Mei 2017 dan selepas itu satu lagi rawatan susulan (follow up) pada 31 hb di klinik yang sama. Selepas itu, ZF dibawa tinggal di Apartment De Centerum di Bangi. Di sinilah pada 1 Jun 2017, ZF tidak sedarkan diri dan nazak dibawa dengan ambulans ke Hospital Serdang dan disahkan meninggal dunia….’
Court of Appeal reinstates murder charge, death penalty for six former UPNM students over death of Navy cadet (VIDEO)
PUTRAJAYA, July 23 — The Court of Appeal today imposed the death sentence on six former students of Universiti Pertahanan Nasional Malaysia (UPNM) for the murder of Navy Cadet Officer Zulfarhan Osman Zulkarnain seven years ago.
The sentence was meted out after a three-judge panel led by Judge Datuk Hadhariah Syed Ismail, allowed the prosecution’s cross-appeal to reinstate Section 302 of the Penal Code initially faced by all the accused.
The accused 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.
Delivering the unanimous decision, Judge Hadhariah stated that the High Court judge had erred in amending the original murder charge under Section 302 of the Penal Code to Section 304 (a) of the Penal Code.
“Therefore, the court allows the prosecution’s appeal to set aside the amended charge and reinstate Section 302 of the Penal Code,” she said, sitting alongside Judges Mohamed Zaini Mazlan and Datuk Azmi Ariffin.
In her ruling, Judge Hadhariah stated that the court found the five defendants had taken turns pressing a steam iron on the entire body of the deceased (Zulfarhan), including his private parts, while Abdul Hakeem was complicit in inciting and instructing the five defendants to do so.
“Therefore, we unanimously decide that a single sentence is appropriate for all six defendants, and they shall be taken to a place of execution where they will be sentenced to death by hanging.
“Thus, the court overturns the 18-year prison sentence imposed by the High Court on the six defendants and replaces it with the death sentence,” said the judge.
Initially, Muhammad Akmal, Muhammad Azamuddin, Muhammad Najib, Muhammad Afif, and Mohamad Shobirin faced murder charges under Section 302 of the Penal Code, which provides for a mandatory death penalty upon conviction.
Whereas, Abdoul Hakeem was charged as an accomplice under Section 109 of the same Code, which also carries a mandatory death penalty.
The Kuala Lumpur High Court had then found all six defendants guilty of causing injury to Zulfarhan with intent but without the intention to kill, under Section 304 (a) of the Penal Code, which provides for imprisonment of up to 30 years and a fine if the act was committed with the intent to cause death.
All of them were accused of committing the acts in a room at the Jebat Hostel block, UPNM, between 4.45 am and 5.45 am on May 22, 2017.
Zulfarhan passed away at the Serdang Hospital on June 1, 2017.
Meanwhile, the three-judge panel overturned the three-year prison sentences imposed on 12 other former students of the same university for injuring Zulfarhan to four years of imprisonment.
The 12 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.
They were found guilty of deliberately causing injury to Zulfarhan to obtain a confession that he had stolen a laptop and were charged under Section 330 of the Penal Code, which provides for a maximum penalty of seven years in prison and a fine, upon conviction.
All of them, now aged 28, were accused of committing the acts in two rooms at the Jebat Hostel block, UPNM, between May 21 and 22, 2017. — Bernama, Malay Mail, 23/7/2024
AG to file appeal against court’s ruling in navy cadet’s case
The six accused escaped the gallows but were sentenced to 18 years’ jail yesterday after they were found guilty of culpable homicide not amounting to murder.
They were initially charged with murdering UPNM cadet officer Zulfarhan Osman Zulkarnain.
Attorney-General 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 Azman Abdullah after they were found guilty of culpable homicide not amounting to the murder of Zulfarhan 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 under Section 302 of the Penal Code, which carries the mandatory death penalty upon conviction, while 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) 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 Shobirin, and their 12 friends to three years’ jail after finding them guilty of injuring Zulfarhan.
Shobirin was previously charged with the same offence but was acquitted of the charge at the end of the prosecution’s case.
The 12 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 succumbed to his injuries at Serdang Hospital on June 1, 2017.
Azman, in his judgment, said he was satisfied that the 90 burn wounds inflicted on Zulfarhan 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
respectively, the court found that Zulfarhan’s death was not a sudden
death after being injured. - FMT, 3/11/2021
THE HIGH COURT JUDGMENT
PP lwn. MUHAMMAD AKMAL ZUHAIRI AKMAL & YANG LAIN - see full judgment at
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