Nasir bin Ramli v Public Prosecutor [2021] 6 MLJ 915

 

NASIR BIN RAMLI v PUBLIC PROSECUTOR [2021] 6 MLJ 915

Court of Appeal (Putrajaya)

Intention to Kill (Murder)

Facts 1.  The Appellant was charged under Section 302 of the Penal Code (Act 574) for the murder of the Deceased, Norfisa bt Othman.

2. On 5 June 2016, the elder brother of the Deceased, Sifwandi bt Othman (PW10) testified that the Deceased had asked his permission to meet her friend outside their family house. However, the Deceased did not return home after she went out that night.

3.  On 7 June 2016, two days later, the elder brother lodged a police report marked ‘exh P6’.

4. On 6 June 2016, Corporal Norhayati @ Elsie ak Peter Kiang (PW5) received a phone call from Anslem, the medical assistant, informing her that an unconscious female patient was sent to the hospital in a critical condition with foam and blood coming out from her mouth. PW5 then told Insp Noor Rahimah (PW8) for her to take necessary action about that information.

5.  At about 2.05 am on 6 June 2016, Corporal Henry ak Sandai (PW7) was on duty at CPS Miri and received a phone call from PW8. PW8 informed PW7 that the female patient had already died. Thus, PW7 lodged a police report marked as ‘exh P15’.

6. Then, PW8 testified that she immediately went to Miri Hospital to check on the female patient’s condition upon receiving the information from PW5.

7. PW8 testified that she witnessed the doctors treating and trying to save the Deceased’s life at the emergency unit. At about 2 am, one of the doctors informed PW8 that the female patient had passed away. Thus, PW8 then quickly called CPS Miri and informed PW7 accordingly.

8. Then, Ahmad Fayri bin Suani (PW9), a medical assistant who received the Deceased at the entrance of the emergency unit at Miri Hospital, testified that the Deceased came in a car driven by the Appellant’s father, Ramli bin Yusuf (PW13). At that time, PW13’s wife and daughter accompanied PW13 when he sent the Deceased to Miri Hospital.

9. PW9 then testified that he has been approached by a lady asking for his help when the said car arrived at the emergency unit.

10. PW9 went to the car and found the Deceased lying on another lady’s lap in the back-passenger seat. PW9 then checked the Deceased’s condition and found no pulse in the Deceased’s body.

11. In addition, PW9 also noticed vomit stains on the Deceased’s face, he immediately lifted the Deceased onto the trolley with the help of Anslem, PW9’s colleague. PW9 immediately performed CPR on the Deceased’s body before proceeding to the red zone. PW9 and Anslem handed over the Deceased to Dr. Patrick (PW15), the doctor in charge at that time.

12. PW13, the Appellant’s father testified that the Appellant and the Deceased were lovers and had brought the Deceased to their family house a few times.

13. PW13 also testified that at their house, the Appellant had complained that the Deceased had blocked his mobile phone number. The Appellant then went out using PW13’s car during that night.

14. PW13 noticed the Deceased was sitting on the front passenger car seat parked outside the house in a state of semi-consciousness. PW13 asked the Deceased about the reason; however, the Appellant replied that the Deceased had fallen off the car when the car was still moving.

15. Nevertheless, the Appellant refused to send the Deceased to the hospital. Therefore, PW13 volunteered to send the Deceased to Miri Hospital with his wife and daughter. They met PW9 who took charge of the Deceased.

16.  PW13 told the Court that he had informed PW9 that he had found the Deceased by the roadside because he was scared to inform the truth due to his first time handling this kind of situation.

17.  At 10 am on 9 June 2016, PW19, Dr Nurina bt Ahmad, the forensic medical doctor conducted the autopsy after she discovered that there was a suspicious blood clot (hematoma) under the scalp and a fracture of the skull on the head of the Deceased. PW19 then contacted PW2, a senior pathologist to continue with post-mortem regarding the suspicious blood clot.

18.  At 8.45 am on 12 June 2016, PW2 conducted a further autopsy on the Deceased at Miri Hospital. PW2 stated in her autopsy report (exh P7) that the cause of the Deceased’s death was a head injury due to blunt force trauma.

19. Moreover, ASP Dorairajah, the investigating officer (PW3), had found that the Deceased had previously lodged two police reports dated 6 May 2016 and 12 May 2016, marked as ‘exh P22′.

20. PW3 informed the Court that the Deceased had complained that the Appellant had beaten her based on the first report, and in the second report, the Deceased complained that the Accused had threatened her with the words’ jaga-jaga kitak lepas tok’, which means ‘you watch out after this’. The second report was because the Appellant was not happy with the Deceased for lodging the first police report.

21. On 24 August 2016, DSP Sarifuddin bin Mustapha (PW4) arrested the Appellant hiding underneath the bed inside the bedroom of a house at Lot 197 Kpg Semariang Batu, Kuching.

22. On 31 August 2016, Nasrul Hadi bin Jahat (PW6) recovered the iron rod (besi pemotong kertas) from the Appellant’s family house at Lot 11268 Tudan Desaras. PW6 found the iron rod inside a toolbox at the house’s front area, which was linked to being a weapon used to kill the Deceased.

23. PW13, the Appellant’s father then informed the Court that the iron rod was kept by him in his Proton car for his protection whenever he needed to use it during his employment as a bouncer a few years ago.

24. Hence, the High Court decided that the Appellant is guilty of the murder and sentenced him to death accordingly.

25. The Appellant then appealed against the High Court’s decision.

26. In actuality, the learned trial judge found that the Appellant had failed to raise a reasonable doubt against the prosecution’s case.

27. However, in his defence, the Appellant’s counsel submitted that the Appellant had no intention to murder the Deceased; thus the Appellant’s counsel contended that the charge should be reduced from section 302 of Act 574 to section 304 (a) of Act 574.

28. The Appellant’s counsel then further submitted that the abrasions and bruises of the Deceased had supported the Appellant’s defence that the Deceased had fallen off the bonnet of the car and sustained her injuries. Thus, the Appellant’s actions did not cause and lead to the Deceased’s death.

29. On the other hand, the Appellant’s counsel then argued that PW19 only had requested to perform the autopsy on the Deceased on 8 June 2016.

30. It was further submitted that the injuries sustained by the Deceased could have occurred at any time between 1.36 am when the Deceased was declared dead on 6 June 2016, and 8 June 2016.

31. PW19 had testified that she could not remember whether she had found any injuries on the Deceased body before she performed the post-mortem.

32. The Appellant’s counsel further contended that the search showed that PW5 was the one who had found the iron rod himself, but the Appellant did not give any information leading to the discovery of the iron rod. There was no evidence that PW5 had administered a caution to the Appellant before obtaining the alleged information leading to the said discovery.

33.  The Appellant then made an appeal to the Court of Appeal.

Issue 1.  Whether the Prosecution had proven the charge of murder under Section 302 of Act 574?

2.  Whether the defence had raised a reasonable doubt for the murder case?

3.  Whether the Appellant had the intention to kill the Deceased?

4.  Whether the conviction of murder under Section 302 of the Penal Code (Act 574) should be substituted with culpable homicide not amounting to murder under Section 304 (a) of the same Act?

 

Ratios

1.  Whether the Prosecution had proven the charge of murder under section 302 of Act 574 and whether the defence had raised a reasonable doubt for the murder case

(a)  In the case of murder, the prosecution must establish every element based on Section 300 of Act 571. Section 300 of the Act of Act 571 provides that-

            “Murder

 300. Except in the cases hereinafter excepted, culpable homicide is murder-

(a)  if the act by which the death is caused is done with the intention of causing death

(b)  if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;

(c)  if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

(d)  if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.”

(b)  Therefore, if the prosecution had successfully proved every four elements based on Section 300 of Act 574, the Appellant would be punished under Section 302 regarding the punishment of murder.

              “Punishment for murder

             302. Whoever commits murder shall be punished with death”

(c)  However, if the prosecution failed to discharge or establish every element of murder as stated in Section 300 of Act 574, the Appellant could not be convicted of murder, so the case may probably falls within one of the culpable homicide not amounting to murder in pursuant to Section 299 of Act 574.  Section 299 of Act 574 provides that-

“Culpable homicide

299. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.”

(d)   Therefore, the trial judge must differentiate between the definition of culpable homicide and murder under Section 299 and Section 300 of the Act 574 respectively before deciding which for the Accused to be convicted with appropriate offence.

“Punishment for culpable homicide not amounting to murder

304. Whoever commits culpable homicide not amounting to murder shall be punished—

with imprisonment for a term which may extend to* thirty years, and shall also be liable to fine, if the 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;”

(e)  Thus, Raja Azlan Shah FCJ in the case of Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ 17, held the different application of Section 299 and Section 300 of Act 574. Thus, it is essential to note that culpable homicide may not amount to murder, although the evidence is sufficient to constitute murder in the case where one or more of the exceptions to Section 300 of Act 574 become applicable.  Second, culpable homicide may also not amount to murder even if the degrees of mens rea is present in Section 299 of Act 574; however, it does not refer to the special degrees of mens rea as mentioned in Section 300 of Act 574.

(f)   In the present appeal, the Court of Appeal found that there is no evidence that shows the Appellant intended to murder the Deceased. Nevertheless, the Court agreed that there is evidence that the Appellant intended to cause bodily injury to the Deceased.

(g)  The Court also agreed that the learned trial judge had overlooked to evaluate the evidence adduced at the end of the defence case. The Court referred to the case of Shah Rehan bin Abdul Rahman v Public Prosecutor [2015] 3 MLJ 337, in which Balia Yusof Wahi JCA reminded the judges not to delve into the ‘believing and convincing’ test in applying the ‘reasonable doubt’ test. Thus, an accused person needs to raise a reasonable doubt, which the judges are required to consider whether the defence had raised a reasonable doubt.

(h)  By applying the above principle to the present case, the Court held that the defence had successfully raised a credible and reasonable doubt that the act of the Deceased, who jumped onto the Appellant’s car bonnet while it was moving and then fell off from the car when the car were consistently related to the bruises and abrasions sustained by the Deceased.

(i)   It is because PW2, the senior pathologist, had presented evidence consistent with the deceased falling off the car bonnet when the Appellant stated that he suddenly braked or stopped the car because of a road bump ahead of him. PW2, Dr Norliza binti Ibrahim opined that the injuries sustained by the Deceased could have been caused by something blunt and hard. Thus, the Appellant could be hit by a blunt object such as wood, iron, or any similar object or she fell onto something hard and blunt.

(j)  Hence, the post-mortem by PW2 did not rule out injuries sustained from the falling effect of the Deceased from the car when the car stopped or braked, which injuries resulted in her death. Hence, the Court agreed that the defence had raised a credible and reasonable doubt to the prosecution case.

2.    Whether the Appellant had the intention to kill the Deceased and

(a) The Court of Appeal ruled that it is essential to look at the degree of the Appellant’s mens rea, whether he had the intention to cause death or injuries that he knew were likely to cause death.

(b) The Appellant and the Deceased were having a serious argument about their relationship, thus the Deceased knocked the mirror of the car out of sudden while the Appellant slowly driving his car. Then, the Appellant suddenly stopped the car as there was a road bump ahead of him.  Following that, the Deceased jumped on the bonnet of the car, fell off the bonnet onto the road and suffered injuries. Thus, it could be summarised that the Appellant had no intention to murder the Deceased based on his action towards the Appellant in the incident.

(c) The Court then referred to the case of Sainal Abidin bin Mading v Public Prosecutor [1999] 4 MLJ 497 which clearly emphasizes the intention to kill, that can be inferred from the nature of the injuries sustained by the Deceased. In fact, the intention can be inferred from the act or conduct or other relevant circumstances of the case, as mentioned in the case of Juraimi bin Husin v Public Prosecutor [1998] 1 MLJ 537.

(d) Thus, by applying the above principle to the Appellant’s case, the Court found that the Appellant had no intention to kill based on what could be inferred from the act of the Appellant himself towards the Deceased.

(e) It is because the conduct of the Appellant which brought the Deceased returned to his house after the incident could be an inference that he did not have the intention to murder the Deceased or cause her death.

(f)  Moreover, the Court decided that the prosecution had failed to establish a prima facie case under Section 300 of Act 574 against the Appellant, but the act of the Appellant was based on the intention to cause bodily injury that was likely to cause death under section 299 of Act 574.

3.     Whether the conviction of murder under Section 302 of the Penal Code (Act 574) should be substituted with culpable homicide not amounting to murder under Section 304 (a) of Act 574

(a)  The Court also referred to Mohamad Radhi bin Yaakob v Public Prosecutor [1991] 3 MLJ 169, in which the Supreme Court held that it is proper for the Court to be convinced that the defence version is right to decide whether the accused can be acquitted or not. As such, although the Court does not accept or believe in the defence’s explanation regarding their case, however, the Court must question whether it raises a reasonable doubt or not in deciding the acquittal of the accused,

(b)  In the present case, the Court of Appeal agreed that the general burden of proof lies on the prosecution to prove beyond a reasonable doubt in proving the charge of the Appellant, which the same has never been shifted to the defence.

(c)  However, whether the prosecution has proved its case beyond reasonable doubt will depend on the evidence before the Court.

(d)  Thus, the Court must consider and determine the existence of a reasonable doubt as a matter of fact at the trial’s conclusion after having taken into consideration the entire evidence and the circumstances prevailing in the case.

(e)  Accordingly, the Court agreed to set aside the conviction of murder under Section 300 and substitutes it with culpable homicide not amounting to murder under Section 304(a) of Act 574.

Decision The Court of Appeal allowed the appeals by the Appellant.  The Court sentenced the Appellant to 18 years imprisonment with effect from the date of his arrest.
Key  Take  Away 1. An intention is a matter of inference, therefore it is essential to define the intention of the accused based on the inference of the act or conduct of the accused.

2.  It is also important to distinguish the differences in the murder element based on Section 299 and 300 of Act 574.

 

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