MALAYSIANS Against Death Penalty and Torture (Madpet) is appalled that the public prosecutor and the attorney-general (AG) will appeal against the high court ruling that charged six Universiti Pertahanan Nasional Malaysia (UPNM) students of culpable homicide not amounting to the murder of UPNM marine cadet officer Zulfarhan Osman Zulkarnain.
For that, the six individuals were sentenced to 18 years’ imprisonment.
It is disturbing that the Attorney-General’s Chambers was reported as wanting to appeal, possibly with the intention that the appellate court will find the six guilty of murder (Section 302 of the Penal Code), which would result in them 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, with the mandatory death penalty, and culpable homicide not amounting to murder under Section 304(a) is the second most serious, with a maximum of 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, and as such was convicted for culpable homicide not amounting to murder under Section 304 (a), and were then sentenced to 18 years’ imprisonment.
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.
Murder is the worst kind of culpable homicide. The two lesser forms of culpable homicide, the punishment of 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 United States, there are several types of murder, such as first-degree, second-degree, and third-degree. Different types of murder attract different sentences, with first-degree murder having the most severe sentence.
However, in Malaysia, like in most Commonwealth countries, we do not classify murder into different degrees, but define killing offences as murder or culpable homicide not amounting to murder, and 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 be. 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…”, with the maximum sentence for this offence being “imprisonment for a term which may extend to thirty years, and shall also be liable to a fine”.
However, if the “act is done with the knowledge it is likely to cause death but really no intention of killing the victim” as stated in Section 304(b), then the sentence for this second type of culpable homicide not amounting to murder is not as severe.
The court should be careful about convicting for murder, and has the power to reduce charges.
The Federal Court yesterday advised high court judges hearing murder cases to determine 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, pre-existing malice, or “malice aforethought”, is required.
The Federal Court made these remarks in a 60-page judgment on why it had in July reduced the murder charge faced by 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, Datuk Seri Mohd Zawawi Salleh and Datuk Harmindar Singh Dhaliwal substituted the capital punishment, or death penalty, with a seven-year jail sentence.
It must be said that Malaysia today in adherence to the United Nations General Assembly, which Malaysia voted in favour of again in 2020, is imposing a moratorium on execution pending the abolition of the death penalty.
Malaysia is already taking steps towards abolition, possibly first abolishing mandatory death penalty for offences, including murder, thus restoring discretion to judges when it comes to sentencing.
The family and friends of the deceased Zulfarhan, whose body had burn marks and bruises, hopefully will understand that our values and principles call for forgiveness, not death by hanging for these young killers.
As such, Madpet:
- calls on the AG to not appeal or continue with the appeal of the conviction and the 18-year prison sentence of the six individuals, and to not seek a murder conviction that will lead to the imposition of the mandatory death penalty;
- reiterates the words of the Federal Court that judges must be cautious of convicting for murder, and consider other killing offences that does 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 execution pending abolition ought to be maintained; and
- urges state governments to move state rulers to exercise their pardon powers to commute death sentences into imprisonment of the more than 1,000 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. – The Vibes, November 11, 2021
Charles Hector is spokesman for Malaysians Against Death Penalty and Torture
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