JUDGMENT

Muniandy Kannyappan J:

Preface

[1] The appellant to this appeal is Nurzalyeni Aryssha binti Razali who was the accused at the trial before the sessions court. She had faced an amended charge which reads as the following:

"Bahawa kamu pada 16 April 2022 antara jam lebih kurang 1.00 pagi hingga 2.15 pagi, di Blok B-18-12, PV 10, Platinum Lake Condominium, No 2, Jalan Danau Saujana 2, Taman Danau Kota, 53300 Setapak, Kuala Lumpur dalam Daerah Wangsa Maju, di dalam Wilayah Persekutuan Kuala Lumpur sebagai orang yang mempunyai hak pemeliharaan terhadap seorang kanak-kanak perempuan yang bernama Khalisa Zara binti Abdul Rahim, No Mykid:180917-13-0378 berusia 3 tahun didapati telah mengabaikan dengan secara cuai kanak-kanak tersebut sehingga menyebabkan kematiannya. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah s 31(1)(a) Akta Kanak-Kanak 2001 dan boleh dihukum di bawah peruntukan yang sama. "

[2] She had claimed trial to the above amended charge. At end of the case for prosecution, the sessions court judge (SCJ) had decided that the prosecution succeeded in proving a prima facie case for the preferred charge against the accused and ordered her to enter on defence. Consequently, she testified on oath as a witness. No other witness was called testify on her behalf.

[3] At conclusion of the trial, it was decided that the accused had failed to raise a reasonable doubt on case of the prosecution, which was water tight. Following to that, it was decided by the SCJ that the prosecution has proven a case against the accused premised on the amended charge beyond reasonable doubt. Hence, she was found guilty and convicted on the charge for an offence under s 31(1)(a) of the Child Act 2001 (Act 611).

[4] Upon hearing submission made by counsel for the accused as plea in mitigation and by the deputy public prosecutor (DPP) on the aggravating factors applicable to the facts and circumstances of the case, the accused was sentenced to a period of five (5) years imprisonment, which is to take effect from the date of conviction. In addition to that, pursuant to s 31(2)(a) of Act 611, she was also ordered to execute a bond of good behaviour for a period of three (3) years with one surety, who is a citizen of Malaysia with an amount of RM3,000.00 as security. Further, the SCJ had also ordered for the accused to undertake community service for thirty-six (36) hours in aggregate within the period of six (6) months after having served her sentence of imprisonment. However, this court was informed on the date of decision of this appeal by counsel for the appellant/accused that she had already undertaken the community service ordered by the sessions court.

[5] Being dissatisfied with the decision of the SCJ, on the finding of guilty, conviction and sentence, the accused had appealed to this court against it.

Prosecution Narrative

[6] A total of eleven (11) witnesses were called by the prosecution to prove its case against the accused. The accused is mother to the victim Khalisa Zara binti Abdul Rahim, as named in the amended charge. The accused and her husband Mohd Muzammil bin Mustaqim (SP3) were lawfully married on 27 December 2018. But the victim was born on 17 September 2018, before their wedlock. After marriage, SP3 lived together with the accused and the victim in Johor and Selangor. He ceased living with the accused and the victim since March 2020. He had explained, since March 2020 the victim was under the care of the accused. It was confirmed by SP3 that the child victim is as in the photos exhibited as evidence P4(1) to (79), who had since deceased. He too had identified the accused during the trial.

[7] SP3 knew that the child had passed away on 16 April 2022 and he was informed she fell from the 18th floor at PV10, Platinum Lake Condominium, Taman Danau Kota, Setapak, Kuala Lumpur. He had further confirmed, the victim was in the custody and care of the accused, and not living with them at that material time.

[8] The unit at the