Muhammad Khairuanuar bin Baharuddin v Public Prosecutor [2023] 4 MLJ 518

Court of Appeal, Putrajaya

Criminal Procedure – Appeal against conviction and sentence – Accused convicted under s 302 of Penal Code for offence of murder  

1.    Muhammad Khairuanuar, (the Accused) was convicted by the High Court under section 302 of the Penal Code (murder) for killing his 2 years old stepdaughter, HA (the Deceased).

2.    The incident took place on 6 November 2015 at a house in Wangsa Maju, Kuala Lumpur.

3.    The Deceased was in the custody of the Accused while the mother (PW7) was at work. The Accused was married to PW7 (the Deceased’s mother) after her divorce from PW1, the biological father.

4.    On two separate days, 17 and 19 October 2015, PW1 and PW2 (stepmother) noticed bruises on the Deceased and heard the Deceased refer to “Papa Bi buat” (Papa Bi did it) when in pain “Papa Bi” referring to the Accused.

5.    On 5 and 6 November 2015, the Deceased travelled to Terengganu and back with the Accused, his driver (PW8), and others. She sat on the Accused’s lap throughout.

6.    On 6 November, after returning home, she was last seen alive with the Accused in the master bedroom. Later that day, she was found unresponsive, with bluish lips and a choking sound.

7.    The Accused attempted to get a death certificate at a private clinic (Klinik Idzham) without a post-mortem but was refused by PW3 (the doctor), who suspected child abuse.

8.    A post-mortem conducted by Dr Mohd Hafizam (PW12) revealed the cause of death was severe head injury from blunt force trauma. The report also noted a scar in the Deceased’s anus, suggesting possible past abuse.

9.    The prosecution relied on circumstantial evidence, including the last seen doctrine, to establish that the Deceased died while in the exclusive care of the Accused.

10.  The High Court convicted the Accused and sentenced him to death. However, the conviction was later appealed.

1.    Whether the High Court was correct in convicting the Accused under s 302 Penal Code for murder?

2.    Whether there was sufficient and reliable evidence to link the Accused to the Deceased’s death beyond reasonable doubt?

1.    Whether the High Court was correct in convicting the Accused under s 302 Penal Code for murder?

(a)      The Court of Appeal (“COA”) found no sufficient evidence that the Accused possessed the intent to cause death or bodily injury sufficient in the ordinary course of nature to cause death, as required under section 300(a)–(c) of the Penal Code.

(b)      The Accused’s conduct, such as seeking urgent medical help and expressing distress at the clinic, was inconsistent with deliberate murderous intent.

(c)      There was no evidence that the Accused knew his act was so imminently dangerous that it would in all probability cause death which High Court (“HC”) fail to prove knowledge under section 300 (d).

(d)      COA found that the Deceased was seen alive after the alleged injury timeframe (around 5.20 pm) and even drinking milk undermining the prosecution’s claim that the Accused knew the act was imminently fatal.

(e)      The evidence established culpable homicide not amounting to murder, particularly due to the absence of premeditation or malice.

(f)        The injuries inflicted may have been reckless or unintentional, but not with the mental element required for murder.

(g)      COA have referred to the case of Mickelson Gerald Wayne v PP [2022] 6 MLJ 118 and Tham Kai Yau v PP [1977] 1 MLJ 174, the Court clarified the fine but important distinction between murder under section 300 and culpable homicide under section 299.

(h)      COA stated that the High Court erred in law and in fact convicting the Accused for murder under section 302 Penal Code, as the necessary degree of intention or knowledge was not proven.

(i)        The correct conviction should have been under subsection 304(b) Penal Code for culpable homicide not amounting to murder.

2.    Whether there was sufficient and reliable evidence to link the Accused to the Deceased’s death beyond reasonable doubt?

(a)   COA ruled that case is based entirely on Circumstantial Evidence. There were no eyewitnesses, confessions, or forensic evidence directly implicating the Accused.

(b)   The entire case hinged on circumstantial factors, such as the last seen principle, bruising observed by other witnesses, and the Accused’s conduct after the Deceased’s death.

(c)   The prosecution did not exclude the possibility that another person, namely PW8, who was also present in the house, could have inflicted the injuries.

(d)   The COA relied on case of R v Abbot [1955] 2 All ER 899 and PP v Muhamad Nasir [1994] 2 MLJ 576, the Court of Appeal emphasized that when two people are at the scene and it cannot be shown who caused the fatal act, the benefit of the doubt must go to the Accused.

(e)   The Court of Appeal stating that timing and nature of injury in this case unclear where PW12, the pathologist, opined that the injuries occurred within 72 hours of death, not necessarily on the same day. This opened up a window of alternative possibilities regarding who caused the injuries.

(f)     The Deceased was seen alive and responsive even at 5.20 p.m., indicating the fatal injury might not have been obvious or immediate.

(g)   While the Accused’s insistence on avoiding a post-mortem and entering the clinic through the back door were suspicious, they do not establish guilt beyond reasonable doubt.

(h)   Conversely, the Accused drove the Deceased to the clinic, pleaded for help, and later brought her to the hospital which all of it could indicate innocence or panic, rather than guilt.

(i)     The prosecution could not explain how the injuries were inflicted or with what object.

(j)     COA found that alleged murder weapon (a mop) was not proven to be involved and no physical evidence directly tied the Accused to the injuries.

(k)    The Court of Appeal ruled that the circumstantial evidence, while raising suspicion, failed to exclude other reasonable hypotheses or identify the Accused as the only possible perpetrator. Therefore, the standard of proof beyond reasonable doubt was not met, and a conviction for murder under section 302 was unsafe.

(l)     However, the Court of Appeal held that the evidence was sufficient to support culpable homicide not amounting to murder under subsection 304(b) Penal Code, given the Accused’s exclusive custody of the Deceased and her death occurring under his care.

The Court of Appeal allowed the appeal and set aside the conviction and sentence of death substituted it with the sentence to 10 years’ imprisonment under s 304(b), starting from the date of remand (9 January 2018.)

1.    The Court of Appeal distinguished between murder (section 302) and culpable homicide not amounting to murder (subsection 304(b)), emphasizing that intent (mens rea) or knowledge of imminent danger must be proven for a murder conviction under s 300 Penal Code.

2.     This principle of “last seen together” can create a presumption of guilt, but cannot stand alone to sustain a murder conviction. Here, it supported culpable homicide, not murder.

3.    The Appellate Court has power to substitute a conviction for a lesser charge if the evidence does not support the original charge.