Malaysians Against Death Penalty and Torture (Madpet) is appalled by the fact that the Malaysian public prosecutor (also the attorney general) will appeal against the High Court’s ruling to convict six students of the National Defence University of Malaysia (UPNM) – who were initially charged with murdering UPNM cadet officer Zulfarhan Osman Zulkarnain – of culpable homicide not amounting to murder (Borneo Post, 3 November 2021).
The six young persons were found guilty of culpable homicide not amounting to murder and were sentenced to 18 years imprisonment.
It is disturbing that the Attorney General’s Chambers was reported wanting to appeal, possibly with the hope or intention that the appellate court would find them guilty of murder (Section 302 of the Penal Code), which would result in the six young persons being mandatorily sentenced to death by hanging.
It must be noted that there are several killing offences in the Malaysian Penal Code. Murder is the most serious (mandatory death penalty), and culpable homicide not amounting to murder under Section 304(a) is the second most serious (maximum 30 years’ imprisonment).
Muhammad Akmal Zuhairi Azmal, Muhammad Azamuddin Mad Sofi, Muhammad Najib Mohd Razi, Muhammad Afif Najmudin Azahat, Mohamad Shobirin Sabri and Abdoul Hakeem Mohd Ali were found guilty of killing with the intention of causing death or of causing such bodily injury as is likely to cause death. As such, they were convicted of culpable homicide not amounting to murder under Section 304(a) of the Penal Code and were then sentenced to 18 years’ imprisonment – for an offence that carries a maximum penalty of 30 years’ imprisonment.
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An 18-year sentence is more than just for these first-time young offenders, noting that they were 21-22 years old when the offence was committed.
Several types of murder and culpable homicide
Murder is the worst kind of culpable homicide. The two lesser forms of culpable homicide, the punishments for which are provided for in Section 304 of the Penal Code, and the heading “culpable homicide not amounting to murder” must not confuse us.
In some countries, like the US, there are several types of murder like first-degree murder, second-degree murder and third-degree murder, … whereby the different types of murder attract different sentences, with first-degree murder having the highest sentence.
However, in Malaysia, like in most Commonwealth countries, we do not divide murder into different degrees, but we define killing offences as murder or culpable homicide not amounting to murder (two types), and some other lesser offences. For Malaysia, the offence generally is culpable homicide
Members of the public may be confused about the law, but the public prosecutor should not – for after all, the current conviction of culpable homicide not amounting to murder is under Section 304(a), which means that the courts found that their “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”, and the maximum sentence for this offence is “imprisonment for a term which may extend to thirty years, and shall also be liable to fine”.
However, if the act is done with the knowledge it is likely to cause death but really no intention of killing the victim [Section 304(b)], then the sentence for this second type culpable homicide not amounting to murder is lesser.
Court has power to reduce charges
The Federal Court on 10 November 2021 advised High Court judges hearing murder cases to see if the accused really deserve the death sentence.
The court has the discretion to reduce the murder charge to culpable homicide not amounting to murder and the accused could instead face a jail term of up to 30 years. For murder, normally evidence of premeditation or pre-existing malice or “malice aforethought” is required.
The Federal Court made these remarks in a 60-page judgment on why the it had in July reduced the murder charge faced by an American, Gerald Wayne Mickelson, over the death of his former wife at a hotel room in Kuala Lumpur five years ago, to culpable homicide not amounting to murder.
The Federal Court panel of Chief Justice Tengku Maimun Tuan Mat, Mohd Zawawi Salleh and Harmindar substituted the capital punishment (death penalty) with a seven-year jail sentence.
It must be pointed out that Malaysia today, in adherence to the UN General Assembly, which Malaysia voted in favour again in 2020, is imposing a moratorium on executions pending the abolition of the death penalty.
Malaysia is already taking steps towards abolition, possibly first abolishing the mandatory death penalty for offences, including murder, thus restoring discretion to judges in sentencing.
The family and friends of the deceased Zulfarhan, whose body had burn marks and bruises, hopefully would understand that our values and principles call for forgiveness, not death by hanging for these young killers.
As such, Madpet:
- Calls on the Malaysian attorney general (public prosecutor) not to appeal or continue with the appeal of the conviction and the 18-year prison sentence of Muhammad Akmal Zuhairi Azmal and the five young people to seek a murder conviction, which will lead to the imposition of the mandatory death penalty
- Reiterates the words of the Federal Court that judges must be cautious about convicting persons for murder and should consider other killing offences that do not result in capital punishment
- Urges Malaysia to expedite the abolition of the death penalty, maybe starting with the abolition of the mandatory death penalty. The moratorium on executions pending abolition ought to be maintained, and
- Urges state governments to move state Rulers to exercise their pardon powers to commute death sentences to imprisonment for the over a thousand who are on death row in Malaysia. The current government and the past governments, after all, have said that they will be abolishing the death penalty
Charles Hector issued this state on behalf of Malaysians Against Death Penalty and Torture
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