The court affirmed that intention to inflict injury is essential for murder under s 302, and the prosecution established sufficient evidence to prove this in the case of a child's death.

Nordin Hassan FCJ:

Introduction

[1] This case concerns a murder charge under s 302 of the Penal Code (' PC ') against Muhammad Khairuanuar bin Baharuddin ('the respondent') for murdering a child aged 2 years and 2 months old, Hanis Amanda binti Mohd Zafil ('the deceased'). The alleged offence occurred on 6 November 2015 at house No F-03, Lojing Heights 1, Jalan 1/27C, Seksyen 5, Wangsa Maju, in Wilayah Persekutuan Kuala Lumpur.

[2] The respondent was convicted by the High Court of the murder charge and was sentenced to death. However, on appeal to the Court of Appeal, the conviction under s 302 of the PC was substituted with a conviction of culpable homicide not amounting to murder under s 304(b) of the same Code. The respondent was then sentenced to 10 years' imprisonment from the date of arrest on 9 January 2018.

[3] Aggrieved with the decision of the Court of Appeal, the Public Prosecutor ('the appellant') appealed to this Court against the substitution of the conviction from a conviction for an offence under s 302 of the PC to an offence under s 304(b) of the Code. The respondent also appealed against the Court of Appeal's decision for an acquittal and discharge of the said charge against the respondent.

The Case For The Prosecution

[4] The prosecution in this case, like in many other murder cases, relied on circumstantial evidence to establish its case beyond a reasonable doubt. The circumstantial evidence adduced and relied upon by the prosecution can be summarized as follows.

[5] The deceased, Hanis Amanda bin Mohd Zafil, was born on 13 August 2013 and at the age of 2 years and 2 months, at the material time of the unfortunate incident. She was the daughter of Farah Adiba binti Md Othman (PW7) and Mohd Zafil bin Ibrahim (PW1) who were married in 2011 but were divorced in August 2014. They have another daughter named Fatin Hanisa who was born in 2011. On 6 May 2015, PW7 married the respondent. PW1 married Tengku Aishah binti Tengku Nong Idris (PW2) after his divorce from PW7.

[6] The marriage of PW7 and the respondent faced difficulties as PW7 was the respondent's second wife and did not stay together. PW7 also later found out that the respondent has other wives and his first wife, Fatin, stayed with the respondent at his house in Lojing Heights 1, Wangsa Maju, Kuala Lumpur. PW7 on the other hand, stayed at her father's house in Wangsa Melawati, Kuala Lumpur.

[7] Every day before going to work, PW7, who worked as a sales agent with Perodua, sends the deceased and Fatin Hanisa to a babysitter's house near her father's house. However, in October 2015, the respondent insisted that the deceased be sent to him for him to take care of her, to which PW7 acceded. PW7 then noticed that whenever she sent the deceased to the respondent's house, she would scream and cry.

[8] The deceased's father, PW1, once in a while, will look after the deceased, and from 17 until 19 October 2015, the deceased was sent to PW1's house by PW7. Whilst the deceased was in PW1 and PW2's custody, they noticed that there were bruises on the deceased body including on the ribs and the thighs. The deceased also told them that it was painful and the respondent did it to her (akit. akit, Papa Bi buat). When PW2 inquired from PW7 about the bruises on the deceased, PW7 responded that she was not aware of the injury as at that time the deceased was taken care of by the respondent.

[9] On 5 November 2015, the respondent, together with his driver, Muhammad Rizal bin Ghazali (PW8) known as Jan, Roslan bin Idris (PW10), and Mohd Alif Haikal (PW11) went to Terengganu as the respondent wanted to expand his farming business. They went in a car driven by PW8 and the respondent also took the deceased with him.

[10] On 6 November 2015, all of them went back to the respondent's house at No F-03, Lojing Heights 1, Jalan 1/27C, Seksyen 5, Wangsa Maju, Kuala Lumpur, where they reached there at about 6.45 am. Upon the arrival at the house, the respondent carried t