Fairoz Azman bin Amironzuki v Pendakwa Raya [2021] 2 MLJ 771

Court of Appeal, Putrajaya

Criminal Procedure – Appeal on death sentence – Robbery

1.    On 7 August 2018, around 5:30 pm, the victims, Tarikul Islam Tarik (Tarikul) and Abdullah bin Md Khalid (Khalid), both Bangladeshi nationals, were working as cashiers at the Petroniaga Mesra Services petrol station in Jalan Genting Klang, Setapak, Kuala Lumpur.

2.    Suddenly, the Appellant entered the petrol station, pointed a gun at Khalid, and demanded money.  When Khalid refused, the Appellant went behind the counter and took cash from prepaid card and Touch ‘n Go sales.

3.    At that moment, Tarikul tried to stop the Appellant by grabbing him from behind, leading to a violent struggle.  During the fight, the Appellant fired three shots, one of which hit Tarikul’s left waist, causing a 2mm wound in the front and a 5mm wound at the back.

4.    Despite being shot, Tarikul, with the help of Khalid, another colleague, and two members of the public managed to overpower and arrest the Appellant.

5.    The Appellant’s .32 caliber revolver (P14) was seized and handed over to police officer Kpl Zul Azri bin Idris, who arrived at the scene.  The entire incident was captured on CCTV.

6.    After carefully considering the defense and prosecution arguments, the trial judge found that the Appellant failed to raise any reasonable doubt in the case.  The judge noted that the Appellant did not deny the robbery and admitted to carrying a loaded .32 caliber revolver in a ready-to-fire (cocked) position.

7.    Given these facts, the court rejected the Appellant’s claim that the shooting was accidental, ruling that the shots were intentionally fired.

8.    Since all elements of section 3 of the Firearms (Increased Penalties) Act 1971 [Act 37] (FIPA) were proven beyond a reasonable doubt, the High Court convicted the Appellant and sentenced him to death.  The Appellant appealed to the Court of Appeal.

(a) Whether the prosecution failed to prove two elements of the offence?

(b) Whether section 3 of the Firearms (Increase Penalties) Act 1971 [Act 37] (‘the FIPA’) contradicts with the Federal Constitution?

1.   Whether the prosecution failed to prove two elements of the offence?

(a) The Appellant’s lawyer argued that the trial judge made a serious mistake in ruling that the prosecution had proven all elements of the offense.

(b) The lawyer acknowledged that the prosecution had to prove three key elements –

(i)    That a robbery was committed by the Appellant.

(ii)   That the Appellant fired a gun during the robbery.

(iii)  That the Appellant intended to cause death or injury to Tarikul.

(c)  However, the defense lawyer argued that the judge was wrong in assessing the second and third elements.

(d) The lawyer claimed that, the gunshots were fired after the robbery was completed, not during the act of robbery itself.  The shots were accidental and happened during a struggle and not intentional.  The trigger was pulled unintentionally due to the intense fight between the Appellant and Tarikul.  There was no evidence to prove that the Appellant intended to harm anyone.

(e)  After reviewing all arguments and evidence, the Court of Appeal rejected these claims.

(f)   COA emphasized that, under section 3 of Act 37-

“3. Any person who at the time of his committing or attempting to commit or abetting the commission of a scheduled offence discharges a firearm with intent to cause death or hurt to any person, shall, notwithstanding that no hurt is caused thereby, be punished with death.”

(g) This provision clarifies that anyone who discharges a firearm while committing a scheduled offense, such as robbery, is liable for the death penalty, even if no one was harmed.  The law does not require the prosecution to prove actual harm, only that the firearm was fired intentionally during the crime.

(h)  COA noted that the defense did not deny that act of robbery took place and that gunshots were fired, which was a critical admission affecting the appeal.

(i)    The defense argued that the robbery was over, and the Appellant was trying to escape.

(j)    However, the court disagreed with the defense and ruled that, a robbery is not complete until the offender has successfully fled with the stolen items.  If force is used to escape, it is still part of the robbery.  The entire incident, including the shooting, was one continuous event, meaning the gunshots were fired during the robbery, not after.

(k)   COA also rejected comparisons with the other cases. Such as case of Low Soo Song v. Public Prosecutor [2009] 3 MLJ 36 stating that, in particular case, the accused did not personally fire the gun during the robbery.  The accused was found not to have committed the robbery and did not fire the gun at the victim, either inside or outside the house during the robbery, as it was done by his accomplice.

(l)    In Public Prosecutor v. Ong Poh Cheng [1996] 4 MLJ 279, the shots were fired the shots were fired outside the victim’s shop after the robbery had taken place.  The shots were not fired for the purpose of the robbery but were aimed at the police during a confrontation outside the premises while attempting to escape.

(m) The facts of both cases are significantly different from the present appeal case and do not support the argument of the learned counsel.

(n)   Since the Appellant admitted to carrying a cocked revolver, the court ruled that, the shots were not accidental, as a revolver requires deliberate trigger movement to fire.

(o)  The second and third shots were clearly intentional.  Expert evidence confirmed that the gun could not have fired simply due to a fall or impact.

(p) COA concluded that the trial judge had correctly assessed the case and that the Appellant failed to raise any reasonable doubt.  COA upheld the conviction and the death sentence from the High Court.

2.    Whether section 3 of Act 37 (‘the FIPA’) contradicts with the Federal Constitution?

(q) The Appellant’s lawyer argued that the death penalty under section 3 of Act 37 was disproportionate to the crime committed and, therefore, unconstitutional, as it violated Article 8 of the Federal Constitution, which guarantees equality before the law.

(r)   However, COA agreed with the prosecution and ruled that section 3 of FIPA is valid and constitutional.

(s)   COA emphasized that there is a legal presumption that all laws are constitutional unless proven otherwise.  Court referred to case in Lee Keng Guan & Ors v. Public Prosecutor [1977] 2 MLJ 95 and in Che Ani bin Itam v. Public Prosecutor [1984] 1 MLJ 113, a similar constitutional challenge was rejected, affirming that mandatory life sentences do not violate fundamental rights.

(t)   COA ruled that the death penalty under FIPA is not arbitrary, oppressive, or unconstitutional, as it serves the clear purpose of deterring firearm-related crimes.

(u)  COA also clarified that Clause 1 of Article 8 of the Constitution ensures equal punishment for similar legal offenses, not necessarily equal punishment based on moral blameworthiness.

(v)  As a result, the Court of Appeal dismissed the Appellant’s claim and reaffirmed that section 3 of FIPA is constitutional.

1.    “Single Transaction” doctrine in robbery cases, robbery does not necessarily end after the stolen items are taken, it continues until the offender successfully escapes.  If a firearm is discharged during an escape attempt, it is still considered part of the robbery.

2.    Burden of proof in firearm offenses, if the accused carries a firearm in a ready to fire condition and discharges it, claiming it was accidental is difficult.  Forensic evidence is crucial in proving whether shots were fired intentionally.

3.    The use of firearms in robbery is a serious offense, warranting strict penalties.  Act 37 aims to deter criminals from using firearms in crimes.

4.    To challenge the validity of a law, strong evidence must be presented.  In this case, the court ruled that the death penalty for firearm-related robbery is constitutional and justified.