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2024 MarsdenLR 1503
COURT OF APPEAL PUTRAJAYA
PP – Appellant
Versus
MAIDIN IBNUHASHIM – Respondent
[Criminal Appeal No: S-05(SH)-475-10/2022]
The court affirmed the conviction for culpable homicide, establishing that intention to cause bodily injury suffices for conviction under the Penal Code, even without intent to kill.
Headnote:(A) Penal Code - Sections 302 and 304(a) - Murder and culpable homicide - The respondent was initially charged with murder, but the High Court reduced the charge to culpable homicide not amounting to murder, convicting the respondent based on credible eyewitness testimony and the cause of death established through medical evidence. (Paras 1, 21, 34)
(B) Evidence - Credibility of witnesses - The court found the testimony of the child witness credible, despite the inherent risks in relying solely on a child's testimony. (Paras 25, 21)
Facts of the case:
The respondent was charged with murder for causing the death of a 9-month-old child through various abusive acts. The High Court found insufficient evidence to support the murder charge but established culpable homicide due to the intention to cause bodily injury. (Paras 1, 34)
Findings of Court:
The court affirmed the High Court's decision, finding that the prosecution failed to prove murder but established culpable homicide under the Penal Code. (Paras 35, 36)
Issues: The main issues included the intention behind the acts leading to the victim's death and the sufficiency of evidence for murder versus culpable homicide. (Paras 29, 34)
Ratio Decidendi: The court concluded that while the respondent intended to cause bodily injury, there was insufficient evidence of intent to kill, leading to the conviction for culpable homicide. (Paras 34, 36)
Result: The conviction and sentence of 18 years’ imprisonment were upheld. (Paras 35, 36)
JUDGMENT
Introduction
[1] The respondent (accused) was initially charged for the offence of murder under s 302 of the Penal Code . The learned High Court Judge, after having found a prima facie case has been made out at the close of the prosecution case, called upon the respondent to enter his defence. The learned High Court Judge, after having heard the defence case, reduced the charge of murder (s 302) to culpable homicide not amounting to murder under s 304(a) of the and convicted the respondent on the reduced charge. The respondent was sentenced to 18 years' imprisonment effective from the date of arrest which was on 16 August 2018.
[2] Dissatisfied with the decision of the learned High Court Judge in reducing the charge from s 302 to s 304(a) of the Penal Code and the conviction of the reduced charge, the Public Prosecutor (hereafter "PP") filed this appeal.
[3] On 14 May 2024, this Court, after having heard the oral submissions and after having read the written submissions of the respective counsels, in a unanimous decision, decided to affirm the learned High Court Judge's decision. The reasons for the decision are set down below.
The Salient Facts
[4] The charge (amended charged) dated 24 February 2022 (Exhibit P22) read as follows:
"That you, Maidin Bin Ibnuhashim is charged at the instance of Public Prosecutor, Malaysia and the charge against you is as follows:
"That you, between the 10th day of August 2018 to 13th day of August 2018, located at the rented room, House no U1777, Kg Gersik Lama, in the Federal territory of Labuan, did commit murder by causing death to Nurul Shafika binti Maidin (Female / 9 Months old) and that you have thereby committed an offence punishable under s 302 of the Penal Code (Act 574) of the Laws of Malaysia."
SENTENCE
Whoever commits murder shall be punished with death"
Events And Evidence Leading To The Death Of The Victim
[5] The learned High Court Judge's grounds of judgment at paragraphs [4] to [12] have set down the events leading to the death of the victim. One crucial evidence is that Nurul Mazliana (PW9), the respondent's daughter, gave evidence that she personally witnessed that the respondent had caused the bodily injury to the victim on several occasions. PW9 was the only eye-witness in the case who saw the respondent causing bodily injury to the victim, and she was 9 years of age at that material time. She was 12 years of age when she gave evidence under oath.
[6] PW9 told the Court that she saw the following incidents:
(i) The respondent placed (or "dipped" as recorded in the Notes of Proceedings) the victim's fingers and toes into hot water filled in a rice cooker;
(ii) The respondent slapped the victim's face several times when the victim cried;
(iii) The respondent slammed the victim onto a mattress, and the victim landed on the mattress on her head;
(iv) The respondent placed the victim on a baby swing and swung the swing hitting a doorless wardrobe's frame (or "center pole" as recorded in the Notes of Proceedings) (see picture Exhibit P16(8) - Record Appeal Volume 3 (Encl 8), p 18/138 (PDF page)) several times;
(v) The respondent held the victim in front of a water tap and allowed running water to run through the victim's head and face.
[7] PW9 told the Court that the injury of the fingers and toes came first, then followed with the swing incident, and lastly the water tap incident.
Postmortem Report
[8] According to the Postmortem Report (Exhibit 43 - Record Appeal Volume 3 (Encl 8), pp 86-91 /138 (PDF page)) prepared by Dr Murali Narayanasamy (PW15), a pathologist / forensic medicine specialist, he found five distinct marks and injuries on the victim, and they are as follows:
i. Discoid bruising over the left check measuring 1.5 x 1.5 cm;
ii. Right periorbital haematoma measuring 2 x 1 cm;
iii. Discoid bruising over the left angle of mouth measuring 1.2 x 1 cm;
iv. Discoid bruising over the right side of forehead measuring 1.5 x 1 cm;
v. There are superficial deep derm
