Mohd Shamsul bin Abdul Aziz @ Abdul Azis v Public Prosecutor and another appeal [2016] 3 MLJ 215

Mohd Shamsul bin Abdul Aziz @ Abdul Azis v Public Prosecutor and another appeal [2016] 3 MLJ 215

Court of Appeal (Putrajaya)

Murder  

Facts 1.     According to Siti Aminah bt Lateh (‘PW12’), her husband, Nen bin Ariffin (‘the Deceased’), had just returned home from the’surau’ on 27 February 2010 around 8.15pm when he was approached by a Malay couple later identified as the Appellants.

2.     The Appellants inquired about house rentals. PW12, who had just finished her prayers at the time, went to her house’s living hall to see what was going on at the veranda.

3.     According to PW12, the Deceased informed them that there was an empty house next door that could be rented and gave them the phone number to contact the owner.

4.     The second Appellant then requested a pencil from the Deceased in order to write down the phone number. The Second Appellant then followed him into the house, and later, without being invited, she followed PW12 into her bedroom.

5.     It was then claimed that, while inside the bedroom, the second Appellant took PW12’s jewellery, which she was wearing without her consent, namely two necklaces and two bracelets.

6.     At around the same time, the First Appellant entered the house. PW12 observed the First Appellant standing behind the Deceased with a knife in his hand in the living hall. Not long after that, PW12 noticed blood oozing from the Deceased’s abdomen.

7.     Both Appellants then fled the house in the Proton Saga car that they had driven to PW12’s house earlier.

8.     The Deceased died a day after the incident, on February 28, 2010, from a stab wound to the abdomen. According to the pathologist’s post-mortem report (exh P13), the cause of death was a stab wound to the abdomen.

9.     Following the incident, PW12 discovered in her bedroom a hand phone believed to belong to the Second Appellant. Both Appellants were arrested as a result of the subsequent investigations.

10.  Mohd Shamsul bin Abdul Aziz @ Abdul Azis (‘the first Appellant’) and his sister, Tuti Adayu bt Abdul Aziz @ Abdul Azis (‘the second Appellant’), were later charged under Section 302 of the Penal Code (Act 574) (‘the first charge’) and Sections 395 and 397 of the same Code (‘the second charge’).

11.  The Appellants were found guilty of both charges by the trial judge. Hence, the Appellants were convicted of both offences and were sentenced to death for the charge of murder.

12.  The First and Second Appellants’ appealed against their murder conviction and sentence in which were heard together.

Issue 1.     Whether the trial judge had erred when he came to the conclusion that the charge for murder as preferred against him was made out by relying on cases with a dissimilar factual matrix.

2.     Whether the issue of common intention under Section 34 of the Penal Code was not applicable to the factual circumstances of this case.

Ratios 1.     Whether the trial judge had erred when he came to the conclusion that the charge for murder as preferred against him was made out by relying on cases with a dissimilar factual matrix.

(a)    The defence counsel Mr KA Ramu; during his submissions argued that the case cited and relied on by the learned trial judge, namely Duis Akim & Ors v Public Prosecutor [2014] 1 MLJ 49; [2014] 1 MLRA 92, must be distinguished from this case due to their dissimilar factual matrix.

(b)    The Court was informed that the Deceased in Duis Akim’s case had received a total of 12 stabs to the neck and upper back regions of his body.

(c)    Similarly, in Tan Buck Tee v Public Prosecutor [1961] 27 MLJ 176, five heinous wounds were discovered on the deceased.

(d)    Whereas, according to the defence counsel, the Deceased was only stabbed once in this instant appeal.

(e)    Based on that argument, the counsel then referred the Court to the case of Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ 174 as authority for the proposition that an inference of intent to kill can be drawn when the person killed was struck with multiple blows.

(f)      The passage which the counsel for the First Appellant had sought to rely on in Tham Kai Yau’s case is as follows:

“The deliberate use by some men of dangerous weapons at another leads to the irresistible inference that their intention is to cause death. This inference should therefore make it a simple matter to come to a decision as to intention, in any case, such as the present, where the weapons used by the appellants were deadly weapons and where the person killed was struck more than one blow.”

(g)    According to the Court, that passage does not imply that there must be more than one blow in order to infer an intention to commit murder, whereas that passage conveys that where there is evidence of more than one blow being used on the Victim by an Accused person, the Court will be more willing to reach a conclusion on the Accused’s intention.

(h)    The   further added that the crux of the passage indeed resides in the opening sentence that goes: ‘The deliberate use by some men of dangerous weapons at another leads to the irresistible inference that their intention is to cause death’.

(i)       Reverting back to the current case, the trial judge had said that the injury was inflicted by force and this can be seen in his grounds of judgment which is reproduced below-

“Di dalam kes ini saya tidak meragui dapatan oleh Patologis (SP9) dan laporan beliau Ekshibit P13, seterusnya penemuan beliau mengenai sebab-sebab kematian iaitu ‘Stab wound of the abdomen’.”

(j)       In fact, the trial judge was aware of the defence counsel’s concern that there was only one stab wound inflicted on the Deceased, and he did consider that issue.

(k)     Thus, it was clear to the Court that, while the First Appellant inflicted only one injury on the Deceased, it was inflicted at a critical part of the Deceased’s anatomy, namely at his abdomen area, causing injuries to the Deceased’s internal organs and resulting in significant blood loss, ultimately leading to the Deceased’s death.

(l)       The pathologist also noticed that the stab wound had been inflicted with a lot of force. When all factors were considered, such injury was more likely to result in death. Tham Kai Yau’s case should be viewed and applied in this case in that context.

(m)  In that regard, in most cases, the Court will consider the testimony of the pathologist, an expert as well as an independent witness, who would have material evidence pertaining to the injury inflicted on the Deceased.

(n)    If the factual circumstance has been established that the fatal injury was caused by the Accused, the nature of the fatal injury, as diagnosed by the pathologist, would go a long way toward assisting the Court in determining, to a large extent, the Accused’s factum of intention in the absence of direct evidence admitting guilt.

(o)    Applying the test in Tham Kai Yau’s case to the facts of this case, the Court determined that, despite being only a single stab, the injury inflicted by the First Appellant on the Deceased was the most likely cause of the Deceased’s death, as it had turned out to be.

(p)    As a result, in such a case, the learned trial judge determined that it is murder, an offence under Section 302 of the Penal Code (Act 574), rather than culpable homicide not amounting to murder.

(q)    The Court then found determined that the trial judge did not err in reaching this conclusion and upholding the murder charge against the first Appellant.

(r)      As a result, the Court rejected the argument advanced by the defence counsel for the First Appellant in that regard.

2.     Whether the issue of common intention under Section 34 of Act 574 was not applicable to the factual circumstances of this case.

(a)    The defence counsel raised the issue of common intention under Section 34 of Act 574, which he claimed did not apply to the facts of this case because there was no evidence that the stabbing was pre-planned.

(b)    According to him, the Second Appellant did not witness the First Appellant’s stabbing act. Furthermore, there was no evidence that the Second Appellant was aware that the First Appellant was carrying a knife.

(c)    Section 34 of Act 574 provides as follows:

“Each of several persons liable for an act done by all, in like manner as if done by him alone. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.”

(d)    The concept underlying this provision has been the subject of much deliberation on the subject of common intention and what it entails, both by numerous learned judges in their reported decisions and by learned commentators in their authoritative books.

(e)    In Mahboob Shah v Emperor AIR 1945 PC 118, the court decided that in order to successfully invoke the aid of Section 34 of Act 574, it must be shown that the criminal act complained against what was done by one of the accused persons in furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any of the persons in the same manner as if the act were done by him alone.

(f)      As such, the Court affirmed that once common intention is demonstrated to exist, implying a plan among the accused persons, any act, no matter how minor, done by any of them, as long as it is done in furtherance of a common intention, he is liable for the offence, as if he committed it alone.

(g)    Applying the principle underlying Section 34 of Act 574 to the current case, the Court determined that the prosecution had failed to present direct or circumstantial evidence linking the Second Appellant to the act of murdering the Deceased on that fateful night.

(h)    Although common intention can be formed immediately before the commission of the alleged act, there was no evidence presented by the prosecution from which such an inference could be drawn against the Second Appellant, namely that she and the First Appellant committed murder in pursuance of a common intention of them both.

(i)       As a result, the Court found no evidence of the Second Appellant performing any act in furtherance of their shared intention.

(j)       The Court then concluded that nothing significant could be read in the context of proving Section 34 of Act 574 on the part of the Second Appellant, implying that the requirement to establish common intention was not met.

(k)     Based on the foregoing, the Court concluded that, in the absence of a common intention to commit murder, the Second Appellant was not guilty of murder under Section 302 of the Act 574.

Decision 1.     The Court dismissed the First Appellant’s appeal against his murder conviction and allowed the Second Appellant’s appeal against her murder conviction.
Key Take Away 1.     Section 34 of Act 574 outlined the procedure to determine the liability of individual who commits a criminal act in furtherance of common intention in which each of them is liable for the act in the same way as if the act had been committed by him alone.

2.     Therefore, once common intention was demonstrated to exist, implying a pre-planned plan among the accused persons, any act, no matter how minor, done by any one of them, as long as it was done in furtherance of a common intention, would make the co-accused person liable for the offence, as if he had committed it alone.

3.     The question of whether an accused person is a primary or secondary participant based on his degree of participation in the commission of the offence is not addressed in this determining the degree of intention.

4.     If they are found guilty and convicted by the court, the different degrees of participation among the accused persons may be considered by the court in passing sentence.

5.     In that regard, it must be reiterated that common intention has been established to have existed among them. Once that pre-condition is fulfilled, then any act done by any of them in furtherance of that common intention, is deemed as ‘shared’ among them.

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