1. ) SUHAILI BIN HARON v Pendakwa Raya (PA-42S-8-07/2025)

SUHAILI BIN HARON PERAYU-PERAYU DAN PENDAKWA RAYA RESPONDEN

Section 29(1) of the Animal Welfare Act 2015 addresses offences of cruelty to animals, enumerating a range of acts and omissions under paragraphs (a) to (u) which are deemed to constitute such cruelty. The provision lies at the heart of the statutory scheme enacted to promote animal welfare and prevent cruelty towards animals.

The present appeal concerns the proper application of section 29(1)(a) of the Act. Whilst the legislation embodies important public policy objectives relating to animal welfare, the issues arising in this appeal ultimately engage established principles of criminal liability, sentencing, and appellate intervention.

Following a full trial concluded on 31 July 2025, the Appellants were convicted of an offence under section 29(1)(a) of the Animal Welfare Act 2015. Each of the Appellants was sentenced to a fine of RM50,000.00, in default of which 12 months' imprisonment was imposed.

Aggrieved by both conviction and sentence, the Appellants have lodged the present appeal against the decision of the Sessions Court at Balik Pulau, Pulau Pinang.

The Charge against the Appellants read as follows: Pertuduhan: "Bahawa kamu bersama-sama pada 08/07/2023 jam lebih kurang 08.30 malam di alamat Kampung Teluk Tempoyak, Batu Maung, didalam Daerah Barat Daya, di dalam negeri Pulau Pinang, telah memukul (1) ekor anjing yang berada di dalam longkang. Oleh yang demikian kamu telah melakukan suatu kesalahan di bawah seksyen 29 (1) (a) Akta Kebajikan Haiwan 2015 yang boleh dihukum dibawah seksyen 29 (1) Akta Kebajikan Haiwan 2015 dan dibaca bersama seksyen 34 Kanun Keseksaan." Hukuman: "Denda tidak kurang daripada dua puluh ribu ringgit dan tidak lebih daripada satu ratus ribu ringgit atau dipenjarakan selama tempoh tidak lebih daripada tiga tahun atau kedua-duanya."

The Appellants have advanced eight grounds in support of their appeal against both conviction and sentence and the grounds are as follows: a) Tuan Hakim tersilap dari segi undang-undang dan fakta apabila memutuskan bahawa pihak Pendakwaan telah membuktikan intipati ataupun elemen-elemen pertuduhan di bawah seksyen 29(1), Akta Kebajikan Haiwan 2015 cuma dengan membuktikan terdapatnya perbuatan memukul anjing sedangkan menurut seksyen 29(1) tersebut elemen yang perlu dibuktikan adalah samada tertuduh-tertuduh telah “dengan kejamnya” memukul anjing tersebut. Elemen “dengan kejamnya” telah tidak diambil kira langsung oleh Tuan Hakim yang bijaksana. b) Tuan Hakim tersilap dari segi undang-undang dan fakta apabila memutuskan pengecaman identiti telah dibuktikan sedangkan saksi utama (SP6) telah gagal untuk mengecam wajah pelaku-pelaku kesalahan semasa proses kawad cam. c) Tuan Hakim tersilap dari segi undang-undang dan fakta apabila memutuskan kegagalan pihak Pendakwaan untuk memanggil saksi iaitu individu yang memuat naik video kejadian dilaman sosial Twitter tidak menimbulkan anggapan bertentangan (adverse inference) di bawah seksyen 114(g) Akta Keterangan. d) Tuan Hakim tersilap dari segi undang-undang dan fakta apabila gagal menimbangkan bahawa semua keterangan-keterangan tentang individu yang memuat naik video tersebut hanyalah keterangan-keterangan dengar cakap sahaja. e) Tuan Hakim tersilap dari segi undang-undang dan fakta apabila menerima pakai ekshibit-ekshibit P18 (Video dalam CD Rom) dan P19 (video kejadian) walaupun tiada Sijil Perakuan dibawah seksyen 90(A) Akta Keterangan 1950 yang dikemukakan oleh pihak Pendakwaan. f) Tuan Hakim tersilap dari segi undang-undang dan fakta apabila gagal menimbangkan bahawa siasatan pihak polis di dalam kes ini adalah bercanggah dengan peruntukan-peruntukan prosedur-prosedur undangundang di bawah Akta Kebajikan Haiwan 2015. g) Tuan Hakim tersilap dari segi undang-undang dan fakta apabila memutuskan bahawa pembelaan Perayu-Perayu tidak pernah dibangkitkan semasa kes pendakwaan sedangkan versi pendakwaan telahpun dicabar dengan tegas oleh pembelaan semasa kes pendakwaan. h) Tuan Hakim tersilap dari segi undang-undang dan fakta apabila menjatuhkan hukuman denda yang terlalu tinggi dan melampau sebanyak RM50,000.00 setiap seorang, jika gagal 12 bulan penjara.

The Respondent, in resisting the present appeal, has relied on well-established principles governing appellate intervention in criminal matters.

It is trite that in a criminal appeal against conviction, the duty of the appellate court is to consider whether the conviction is safe. In this regard, reliance is placed on Mohd Johi bin Said & Anor v Public Prosecutor [2005] 5 MLJ 409; [2005] 1 CLJ 389; [2004] 6 AMR 825; [2004] 2 MLRA 425, where Gopal Sri Ram JCA held as follows: "Unlike civil appeals, where the appellant carries the burden of showing that the judge at first instance went wrong, in a criminal case the duty of the court is to consider whether the conviction is right. The correct approach is therefore not whether the decision is wrong but whether the conviction is safe. See Mohammad Husain v Emperor AIR 1945 Nag 441; Zahari bin Yeop Baai v Public Prosecutor [1980] 1 MLJ 160; [1997] 1 MLRH 185; [1997] 1 LNS 162. That question, on the present facts, must receive a negative response."

This principle was reaffirmed in Mohamad bin Deraman v Public Prosecutor [2011] 3 MLJ 289; [2011] 3 CLJ 601 (MR); [2010] 3 MLRA 602; [2011] 3 AMR 513, where the Court held: "In a criminal case the duty of the appellate court is to ascertain if the conviction is safe and not whether the decision is wrong."

Further, in Tan Kim Ho & Anor v Public Prosecutor [2009] 3 MLJ 151; [2009] 3 CLJ 236; [2009] 1 MLRA 200, Zaki Tun Azmi CJ emphasised the deference to be accorded to findings of fact by theTrial Court in the following terms: "It is an established principle of law that when dealing with finding of facts, the trial judge is more often than not, in a better position to decide. The Appellate Court must be reluctant to interfere with such findings, unless the facts obviously disclose the Courts below had clearly and wrongly evaluated the facts."

It is also settled that an Appellate Court retains the power to review and re-evaluate the entirety of the evidence adduced before the trial court, particularly where there are omissions or deficiencies in the Trial Judge's grounds of judgment.

This Court agrees with the aforesaid authorities and the principles of law enunciated therein.

In the present appeal, the grounds advanced traverse issues of fact, evidence, and law. It is therefore incumbent upon this Court to consider each ground and determine whether the impugned findings disclose any error warranting appellate intervention.

The Appellants have advanced eight grounds of appeal.

Upon careful consideration, these grounds may be broadly categorised into three principal clusters.

First, Grounds (a), (c), (d), (e), and (f) raise questions of law. These include, inter alia, the proper interpretation of the essential elements of the offence under section 29(1) of the Animal Welfare Act 2015, the application of section 114(g) of the Evidence Act 1950, the admissibility of evidence (in particular the video exhibits in the absence of a certificate under section 90A of the Evidence Act 1950), as well as issues relating to alleged non-compliance with statutory procedures governing investigation.

Second, Grounds (b) and (g) concern issues of fact and the evaluation of evidence, in particular the question of identification and whether the learned Trial Judge had properly appreciated the defence case in light of the evidence adduced.

Finally, Ground (h) relates to the issue of sentence, namely whether the fine imposed by the learned Trial Judge was excessive and warrants appellate intervention.

This categorisation is not merely academic. It serves to guide the scope and intensity of appellate scrutiny. Questions of law are subject to full review, whereas findings of fact and the evaluation of evidence will only be interfered with if it is shown that the findings are unsafe or against the weight of the evidence.

It is against this framework that this Court will now consider each of the Appellants' grounds of appeal.

This Court will now consider the Appellants' grounds of appeal in accordance with the categorisation set out above. For clarity and analytical coherence, the grounds will be addressed under three broad heads, namely: (i) questions of law; (ii) issues of fact and the evaluation of evidence; and (iii) sentence.

Notwithstanding its framing, Ground (a) is in substance a challenge to the Trial Judge's evaluation of the evidence.

The Appellants' principal complaint under Ground (a) is that the learned Trial Judge allegedly erred in law and fact in finding that the Prosecution had proved the ingredients of the charge under section 29(1)(a) of the Animal Welfare Act 2015 merely upon proof of the act of hitting the dog, without expressly addressing the statutory element of "with cruelty" ("dengan kejamnya").

It was submitted that the element of cruelty is an essential ingredient of the offence, and that in the absence of express judicial consideration of this element, the conviction is rendered unsafe. Reliance was placed on the ordinary dictionary meaning of "cruelty" to argue that not every act of physical force would amount to cruelty, and that contextual assessment, such as intent, nature of force, and resulting injury, must be established.

The Appellants further contended that in the present case there was no conclusive evidence of injury or death caused by the alleged act of hitting, and that the Prosecution's case was largely inferential and based on hearsay. It was also argued that the evidence suggested an alternative explanation, namely that the animal may have been injured as a result of a prior collision with a motorcycle, and not as a result of any deliberate act of cruelty by the Appellants.

Having considered the submissions, this Court finds Ground (a) to be without merit.

The Trial Court did not adopt a narrow or mechanistic approach. A reading of the grounds of judgment as a whole shows that the Court evaluated the entirety of the circumstances, including the conduct depicted in the video evidence (Exhibit P19).

The learned Judge expressly characterised the conduct as "zalim" and "kejam", reflecting a clear finding that the act was unjustified and harmful.

This Court does not accept that the element of "cruelty" was ignored. It is well established that a judgment need not dissect each statutory element in isolation, so long as the substance of the requirement has been addressed.

The Appellants' complaint is, in reality, an attempt to re-argue the factual evaluation of the evidence, which is impermissible.

The finding that the act was "zalim dan kejam" is supported by the evidence and falls within the range of findings open to the trial court.

Accordingly, Ground (a) is dismissed.

Grounds (c) and (d) concern the failure to call "Shymiee" and the alleged hearsay nature of the evidence.

The Appellants' principal submission is that "Shymiee", alleged to be the individual who uploaded the video and accompanying caption on the social media platform Twitter, was a material witness who ought to have been called by the Prosecution. It was contended that the failure to call him warranted the drawing of an adverse inference under section 114(g) of the Evidence Act 1950. It was further argued that, in the absence of his testimony, the evidence relating to the social media publication amounted to hearsay.

An adverse inference under section 114(g) is not automatic; it arises only where the missing witness is material and his absence creates an evidential gap.

This Court agrees that no such inference arises. The learned Trial Judge found that the individual was not present at the scene and was not a witness to the incident. The Prosecution's case rested on SP6, an eyewitness who recorded the video (Exhibit P19).

SP6's evidence was direct, material, and tested under cross-examination. No evidential gap arises from the absence of "Shymiee".

The role attributed to "Shymiee" relates only to the subsequent dissemination of the video, which is collateral to the commission of the offence.

The hearsay argument is likewise without merit. The conviction was grounded on admissible direct evidence and properly admitted video evidence.

Accordingly, Grounds (c) and (d) are dismissed.

Grounds (c) and (d) having been disposed of, this Court proceeds to consider Ground (e), which likewise raises a question of law relating to the admissibility of electronic evidence under section 90A of the Evidence Act 1950. However, this ground was withdrawn by the Appellants during the hearing and therefore calls for no adjudication by this Court.

This Court now turns to consider Ground (f), wherein the Appellants contended that the learned Trial Judge erred in law and in fact in failing to appreciate that the investigation conducted by the police was contrary to the provisions and procedures prescribed under the Animal Welfare Act 2015.

The gravamen of the Appellants' complaint is that, pursuant to sections 36 and 39 of the Animal Welfare Act 2015, only duly appointed animal welfare officers have the statutory authority to investigate offences under the Act. It was submitted that in the absence of evidence showing that the investigating officers were so appointed, or that there was any written authorisation or delegation from the Animal Welfare Board, the investigation, arrest, and seizure carried out by the police were unlawful and rendered the prosecution fatally defective.

The Respondent, on the other hand, submitted that the Animal Welfare Act 2015 does not exclude or prohibit the police from investigating offences under the Act. It was further contended that the police, in any event, possess general investigative powers under the Criminal Procedure Code and the Police Act 1967, and that there was no prejudice occasioned to the Appellants by the manner in which the investigation was conducted.

Having considered the respective submissions, this Court finds no merit in Ground (f).

While sections 36 and 39 provide for animal welfare officers, they do not exclude the general investigative powers of the police.

The police derive their powers from the Criminal Procedure Code and section 20(3) of the Police Act 1967. These are general powers applicable unless expressly restricted.

No such restriction exists in the Animal Welfare Act 2015. A contrary interpretation would lead to impractical consequences.

Ground (f) is therefore without merit and is dismissed.

Having disposed of Grounds (a), (c), (d) and (f), and nothing that Ground (e) has been withdrawn by the Appellants, this Court now turns to consider the remaining grounds of appeal which concern issues of fact and the evaluation of evidence.

These grounds, namely Ground (b) and Ground (g) relate principally to the learned Trial Judge's findings on identification, the assessment of witness testimony, and the weight accorded to the evidence adduced at trial. It is well established that appellate intervention in such matters is limited, and a trial court's findings of fact will not be lightly disturbed unless shown to be plainly wrong or against the weight of the evidence.

Ground (b) concerns the Appellants' complaint that the learned Trial Judge erred in law and fact in finding that the issue of identification had been proved, notwithstanding the alleged failure of the key witness (SP6) to properly identify the Appellants during the identification parade.

It was submitted on behalf of the Appellants that there was no clear, cogent or credible evidence linking the Appellants to the persons seen in the video footage. Reliance was placed, inter alia, on the evidence of SP3, who stated that he was unable to recognise the individuals in the video due to its unclear quality and could not ascertain their ethnicity. It was further contended that SP6 did not in fact visually recognise the Appellants at the time of the incident, and that his subsequent identification was based primarily on body build rather than facial recognition. It was also highlighted that SP6 had acknowledged discrepancies in clothing colours between the Appellants and the persons seen in the video, and that such discrepancies had not been properly resolved by expert evidence. The Appellants further challenged the propriety of the identification parade, contending that it was irregular and unreliable, and that no independent corroborative evidence had been adduced to firmly establish identity.

The Respondent, on the other hand, submitted that the learned Trial Judge had correctly accepted the identification evidence of SP6, who had consistently identified the Appellants during the identification parade and in court. It was emphasised that SP6 had given detailed testimony as to the physical characteristics of the Appellants and had positively identified them in the course of the proceedings. The Respondent further submitted that the identification parade was properly conducted and duly recorded (Exhibit P21), and that the totality of the evidence, including SP6's testimony and the video evidence (P19), sufficiently established the identity of the Appellants as the perpetrators. It was further contended that, in any event, the Appellants themselves had placed themselves at the scene of the incident.

Having considered the competing submissions, this Court is of the view that Ground (b) is devoid of merit.

First, the issue of identification is quintessentially a question of fact, the assessment of which lies primarily within the province of the Trial Judge who had the advantage of seeing and hearing the witnesses testify. It is trite that an Appellate Court will be slow to interfere with such findings unless it is shown that the evaluation was plainly wrong or unsupported by the evidence.

Second, upon a careful perusal of the grounds of judgment, it is clear that the learned Trial Judge had expressly evaluated the evidence of SP6, including his identification of the Appellants during the identification parade and his in-court testimony. The learned Judge accepted SP6 as a credible witness and found his identification of the Appellants to be reliable and consistent with the surrounding evidence, including the video footage (Exhibit P19).

Third, the alleged inconsistencies raised by the Appellants, particularly in relation to facial recognition versus body build and differences in clothing colours, were matters which were fully canvassed at trial and considered by the learned Judge. These do not, in themselves, displace the overall reliability of SP6's identification, particularly where the identification was not based on a single factor but on a combination of observations and subsequent confirmation during the identification procedure.

Fourth, the identification parade (Exhibit P21) was conducted under the supervision of the investigating officer and duly recorded. There is no evidence before this Court to suggest that the procedure was so fundamentally flawed as to render the identification unsafe. The mere fact that witnesses may have prior familiarity with the Appellants goes to weight rather than admissibility.

Finally, this Court is satisfied that the learned Trial Judge had properly considered the totality of the evidence before concluding that the Appellants had been correctly identified as the persons involved in the incident. There is no demonstrable misdirection in law or fact that would justify appellate intervention.

In the premises, Ground (b) is dismissed.

Ground (g) concerns the Appellants' complaint that the learned Trial Judge erred in law and fact in finding that the Appellants' defence had not been raised during the prosecution stage, notwithstanding that, according to the Appellants, the defence version had in fact been clearly put forward and challenged during the prosecution case.

The Appellants submitted that throughout the prosecution case, all incriminating evidence was consistently challenged and denied. It was further contended that there was no credible evidence establishing that the Appellants had beaten the dog, and that the prosecution's case failed to establish either (i) the existence of a dog being beaten to death or (ii) the identification of the Appellants as the perpetrators. The Appellants maintained that their defence was consistently that they were merely present at the scene as bystanders following a road accident involving a dog and a motorcycle, and that they did not participate in any act of cruelty. It was emphasised that this version was maintained under cross-examination and was not shaken by the prosecution.

The Respondent, on the other hand, submitted that the learned Trial Judge was correct in finding that the Appellants' version amounted to a defence raised for the first time during the defence case, and therefore constituted an afterthought or "recent invention". It was argued that the Appellants' defence was not suggested to prosecution witnesses at the material time, and that no supporting contemporaneous report or evidence was produced to substantiate the defence version. Reliance was placed on the principle that failure to put forward the defence at the earliest opportunity may render it vulnerable to being treated as an afterthought, as well as authorities to the effect that a bare denial does not amount to a defence in law.

Having considered the rival submissions, this Court is of the view that Ground (g) is without merit.

First, it is settled law that while an accused is not required to prove his innocence, the defence case, where it contradicts the prosecution version, ought to be properly put to relevant prosecution witnesses to afford the prosecution an opportunity to test and respond to it. A failure to do so may, in appropriate circumstances, affect the weight to be accorded to such defence evidence.

In the present case, the learned Trial Judge expressly found that certain aspects of the defence version were not raised during the prosecution case and only emerged at the defence stage. Upon examination of the record, this finding cannot be said to be plainly wrong. The defence version, particularly that the Appellants were merely present as observers and not participants in the alleged act, was not squarely put to the relevant prosecution witnesses in the manner suggested in the defence case.

Second, even assuming that aspects of the defence were raised in a general sense during cross-examination, the critical issue is not whether the Appellants denied the prosecution case, but whether their version was supported by credible and independent evidence sufficient to displace the prosecution's case. A mere denial, without more, does not, in law, automatically raise a reasonable doubt.

Third, the learned Trial Judge was entitled to evaluate the defence evidence in light of the prosecution case as a whole. The conclusion that certain elements of the defence amounted to a version emerging at the defence stage is a finding of fact, grounded in the Trial Judge's assessment of the manner in which the evidence unfolded during trial. There is no demonstrated misdirection warranting appellate interference.

Fourth, the authorities cited by the Respondent correctly reflect the legal position that a defence which is not properly suggested during the prosecution case may, depending on the circumstances, be treated as an afterthought. Equally, a bare denial, without evidential support, is insufficient to cast a reasonable doubt on the prosecution case. (see Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 MLJ 209; [1996] 1 MLRA 47; [1996] 1 AMR 817; [1996] 1 CLJ 705, Megat Halim bin Megat Omar v Public Prosecutor [2008] MLJU 647; [2009] 1 CLJ 154; [2008] 2 MLRA 489, Lim Zhen Qiang v Public Prosecutor [2025] MLJU 1383; [2025] MLRAU 127; [2025] AMEJ 1063, Public Prosecutor v Lim Chooi Huat & Anor [2011] MLJU 852; [2011] 13 MLRH 791; [2011] CLJU 1202, Thiagarajan Selvam v Public Prosecutor [2014] 1 LNS 1796); [2014] MLJU 1951; [2015] 6 MLRA 753; [2015] AMEJ 510.

In the present case, the learned Trial Judge did not reject the defence on a mere technicality but evaluated it against the entirety of the evidence, including the video evidence (Exhibit P19), witness testimony, and identification evidence which had already been accepted. The conclusion reached was one open to the learned Judge on the evidence.

This Court therefore finds no error of law or fact in the treatment of the defence case by the learned Trial Judge. The Appellants' complaint under Ground (g) essentially invites this Court to reevaluate the evidence and substitute its own view for that of the Trial Court, which is impermissible in the absence of any clear perversity or misdirection.

Accordingly, Ground (g) is dismissed. C. The Ground Relating to Sentence

Having dismissed the appeal and affirmed the conviction, the Appellants' liability under section 29(1) of the Animal Welfare Act 2015 stands established. The Court therefore proceeds to consider the appropriate sentence.

The Appellants submitted, in the alternative, that should they be found guilty, the sentence imposed was excessive and harsh in the circumstances of the case. It was contended that both Appellants were first-time offenders, and that the learned Trial Judge ought to have imposed a lower fine at the minimum level, namely RM20,000.00, rather than the maximum or near maximum range. According to the Appellants, the sentence of RM50,000.00 was disproportionate to their status as first offenders and therefore warranted appellate intervention.

The Respondent, in reply, submitted that the sentence imposed by the learned Trial Judge was proper, lawful, and well within the statutory framework under section 29(1) of the Animal Welfare Act 2015, which prescribes a fine ranging from RM20,000.00 to RM100,000.00 and/or imprisonment of up to three years. It was emphasised that the sentence of RM50,000.00 was neither excessive nor disproportionate, falling comfortably within the statutory range.

The Respondent further relied on the principle that sentencing is a matter within the discretion of the Trial Court, to be exercised in accordance with established judicial principles, having regard to all relevant circumstances including the nature and seriousness of the offence, public interest, and deterrence. Authorities were cited to the effect that there is no rigid tariff in sentencing and that variations in sentence are permissible provided they remain within legal limits and judicially recognised principles.

It was therefore submitted that the learned Trial Judge had properly considered the relevant factors in sentencing, including the seriousness of the offence and the need for deterrence, and that the sentence imposed was fair, proportionate, and justified. Accordingly, Ground (h) was said to be without merit.

Section 29(1) of the Animal Welfare Act 2015 provides that upon conviction, the offence is punishable with a fine of not less than RM20,000 and not more than RM100,000, or imprisonment for a term not exceeding three years, or to both. The statutory sentencing framework thus clearly reflects Parliament's intention that offences under this provision are to be treated with seriousness and attract meaningful penal consequences.

This legislative intent is further reinforced by the Parliamentary Hansard, which records that the Animal Welfare Bill was enacted inter alia to empower the Board to promote humane treatment of animals and to encourage the formation of public opinion against acts causing trauma, pain, or suffering to animals. The provision therefore serves not only a punitive function, but also an important deterrent and educative purpose in the public interest.

In that context, it is imperative that a clear and unequivocal message be conveyed to the public at large that section 29 of the Act is to be taken seriously, lest the provision and its underlying objectives be rendered a dead letter.

This Court accepts that, depending on the circumstances of the case, a custodial sentence may be warranted in appropriate cases, having regard to the gravity of the offence.

However, having considered the overall facts and circumstances, including the mitigation advanced, this Court is of the view that the appropriate sentence in the present case is a fine. Accordingly, a fine of RM30,000.00 is imposed on each Appellant, and in default of payment, six (6) months' imprisonment.

This sentence is, in the view of this Court, fair, proportionate, and warranted in all the circumstances of the case.

In the result, the appeal against conviction is dismissed.

The appeal against sentence is allowed to the limited extent that the sentence imposed by the learned Trial Judge is varied to a fine of RM30,000.00 for each Appellant, in default six (6) months' imprisonment. Save for this variation, the decision of the learned Trial Judge is affirmed. 6 June 2026 (CHOONG YEOW CHOY) JUDGE HIGH COURT OF MALAYA GEORGETOWN, PULAU PINANG Counsel: Appellants Mohd Azman bin Harun (Tetuan Azman & Co)