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DA-45B-6-09/2022 15/06/2026 11:12:40 IN THE HIGH COURT OF MALAYA AT KOTA BHARU IN THE STATE OF KELANTAN DARUL NAIM, MALAYSIA CRIMINAL APPEAL NO: [ ] DA-45B-6-09/2022 & DA-45-12-09/2022 BETWEEN AMIR SHARIF BIN MUHAMAD... APPELLANT IC NO: 911209-03-5739 AND PUBLIC PROSECUTOR... RESPONDENT GROUNDS OF JUDGMENT A. INTRODUCTION [1] This is an appeal by the Appellant, Amir Sharif bin Muhamad, against the sentence imposed upon him in respect of the first charge, namely an offence of murder punishable under section 302 of the Penal Code. [2] The first charge alleged that the Appellant, on 29 October 2021, between approximately 8.00 a.m. and 9.00 a.m., at a house situated at Lot 1101, Kampung Apa-Apa, Bunut Susu, in the district of Pasir Mas, in the State of Kelantan, did commit murder by causing the death of Nurshazreen Balqis binti Albadri, (No. K/P: XXXX-XX-XXXX) and thereby committed an offence punishable under section 302 of the Penal Code. [3] The Appellant was also charged with a second offence under section 376(4) of the Penal Code. However, the present appeal is confined only to the sentence imposed in respect of the first charge. The conviction and sentence in respect of the second charge are not the subject matter of the present appeal save to the extent that they are relevant to the totality principle and the order that the custodial sentences run concurrently. [4] On 14th April 2026, upon the charges being read and explained to the Appellant, he pleaded guilty to both charges. The Court was satisfied that the Appellant understood the nature and consequences of his plea, and that his plea of guilt was made voluntarily, unequivocally and without qualification. The facts of the case were thereafter tendered, read and explained to the Appellant, and he admitted the same as true. [5] Upon considering the admitted facts, the mitigation advanced on behalf of the Appellant and the submissions in aggravation by the learned Deputy Public Prosecutor, the Appellant was sentenced to thirty-two (32) years' imprisonment and twelve (12) strokes of whipping in respect of the first charge. In respect of the second charge, he was sentenced to fifteen (15) years' imprisonment and ten (10) strokes of whipping. Both custodial sentences were ordered to run concurrently from the date of arrest. [6] Being dissatisfied with the sentence of thirty-two (32) years' imprisonment imposed in respect of the first charge, the Appellant lodged the present appeal against sentence. B. FACTS OF THE CASE [7] The facts of the case, as tendered before the Court and admitted by the Appellant, revealed a tragic and deeply disturbing set of circumstances. [8] On 29 October 2021, at approximately 6.30 p.m., the complainant, L/Kpl 205136 Muhamad Nazran bin Mohd Asri, who was then on duty at the complaint counter of Balai Polis Meranti, was approached by Albadri bin Mat, the father of the deceased. The deceased's father informed the police that his daughter had passed away at their residence at Lot 1101, Kampung Apa-Apa, Bunut Susu, Pasir Mas. He had attended at the police station for the purpose of obtaining a burial permit, as it was initially suspected by the family that the deceased had died due to side effects from the second dose of the Covid-19 vaccine. [9] Since the deceased was below the age of eighteen (18) years at the material time, being only sixteen (16) years and ten (10) months old, the police advised the family to refer the deceased to Hospital Pasir Mas for confirmation of death before a burial permit could be issued. A police report was accordingly lodged by the deceased's father. [10] The deceased was subsequently brought to the mortuary at Hospital Pasir Mas. A post-mortem examination was conducted by Dr Siti Zanariah binti Md Naziri, a forensic pathologist from Hospital Raja Perempuan Zainab II, Kota Bharu, on 30 October 2021 at approximately 8.45 a.m. The post-mortem examination confirmed that the cause of death was asphyxia due to smothering. The initial post-mortem findings also revealed injuries on the face and neck of the deceased, as well as fresh tears to her genitalia. [11] Following the forensic examination, the Appellant was arrested on 30 October 2021 at approximately 4.00 p.m. at the security post of Sekolah Kebangsaan Akong, Pasir Mas. The Appellant was the brother-in-law of the deceased. Upon physical examination, injuries in the form of scratches were found on his body, including at the back of his shoulder, which were suspected to have been caused by fingernails. [12] The investigation was conducted by ASP G/17198 Nor Mazura bin Yaacob of the Criminal Investigation Division, Ibu Pejabat Polis Daerah Pasir Mas, under sections 302 and 376(4) of the Penal Code. [13] The investigation revealed that the deceased's parents had left the house on the morning of the incident. At the material time, the Appellant was the only person in the house with the deceased. When the deceased's mother returned home, the Appellant was no longer present at the house. [14] The investigation further revealed that the injuries sustained by the Appellant were caused during a struggle between the deceased and the Appellant. Dr Vedavyasan a/l Devandran, who examined the Appellant, confirmed that the injuries sustained by the Appellant were consistent with injuries caused by a hand. [15] The post-mortem findings by Dr Siti Zanariah binti Md Naziri confirmed that the deceased died from asphyxia due to smothering at the mouth and nose, either by hand or by an object such as a pillow. The forensic pathologist stated that the deceased's mouth and nose had been covered, causing deprivation of oxygen and ultimately resulting in her death. The presence of injuries around the face and chin was consistent with the act of smothering. [16] The forensic pathologist also found petechial haemorrhages around the face, eyelids and conjunctiva of the eyes, as well as bluish discolouration at the tips of the fingers and toes. These findings were consistent with asphyxia. The injuries to the deceased's genitalia were fresh injuries caused by the insertion of a hard and blunt object. The forensic pathologist further opined that the deceased had died between twenty-four (24) to thirty-six (36) hours before her body was examined. [17] The chemical analysis conducted by the Department of Chemistry Malaysia on exhibits recovered by the Forensic Unit of IPD Pasir Mas revealed the presence of blood and suspected semen stains on the mattress where the deceased was found. The DNA analysis showed that multiple biological samples recovered from the deceased's clothing, the bedding, the mattress cover, the comforter, the pillow, the bolster and the fingernail clippings of the deceased matched the DNA profile of the Appellant. [18] In particular, semen stains found on the deceased's T-shirt, underwear, brassiere, comforter and long pants matched the DNA profile of the Appellant. Blood stains found on the deceased's underwear and mattress cover also matched the DNA profiles of the Appellant and the deceased. Blood stains found on the deceased's fingernail clippings matched the DNA profiles of both the Appellant and the deceased. Blood stains found on the pillow and bolster were also matched to the Appellant as the major contributor. [19] The totality of the admitted facts established beyond any doubt that the Appellant was criminally responsible for the death of the deceased and that the offence committed was one of the utmost gravity. C. THE ISSUE BEFORE THE COURT [20] Since the Appellant pleaded guilty and did not challenge the conviction, the single issue before this Court is whether the sentence of thirty-two (32) years' imprisonment and twelve (12) strokes of whipping imposed in respect of the first charge is manifestly excessive, wrong in principle or disproportionate to the gravity of the offence. [21] In considering this issue, the Court must examine the sentence imposed against the applicable statutory framework, the admitted facts, the aggravating and mitigating factors, the totality principle, and the established principles governing appellate intervention in sentencing. D. SENTENCE ACCORDING TO LAW [22] Before passing sentence upon an accused who pleads guilty, the Court is required to ensure that the plea is properly recorded and that sentence is passed according to law. Section 173(b) of the Criminal Procedure Code provides that if the accused pleads guilty to the charge, whether as originally framed or as amended, the plea shall be recorded and he may be convicted on it, and the Court shall pass sentence according to law. [23] The expression "sentence according to law" was considered in Public Prosecutor v Jafa bin Daud [1981] 1 MLJ 315, where Mohd Azmi J observed that a sentence according to law means that the sentence must not only be within the ambit of the punishable section, but must also be assessed and passed in accordance with established judicial principles. [24] The Court therefore does not discharge it's duty merely by imposing a sentence which falls within the statutory range. The Court must go further and ensure that the sentence reflects the nature of the offence, the culpability of the offender, the harm caused, the aggravating and mitigating factors, and the public interest in the administration of criminal justice. [25] In the present case, section 302 of the Penal Code provides for a sentence of death or imprisonment for a term of not less than thirty (30) years but not exceeding forty (40) years, and if the accused is not sentenced to death, he shall also be punished with whipping of not less than twelve (12) strokes. [26] The sentence of thirty-two (32) years' imprisonment and twelve (12) strokes of whipping imposed in respect of the first charge was therefore plainly within the statutory range prescribed by law. The issue is whether it was excessive in the circumstances of the case. For the reasons that follow, this Court is satisfied that it was not. E. PRINCIPLES GOVERNING APPELLATE INTERVENTION IN SENTENCE [27] It is trite that sentencing is pre-eminently a matter of judicial discretion. An appellate court will not interfere with a sentence merely because it may have imposed a different sentence had it been sitting as the court of first instance. [28] The appellate court may only intervene where it is shown that the sentence imposed is manifestly excessive, manifestly inadequate, wrong in principle, illegal, or where the sentencing court had taken into account irrelevant considerations or failed to consider relevant matters. [29] In applying that principle, the appellate court must accord due weight to the fact that the sentencing court had the advantage of considering the plea, the admitted facts, the mitigation and the aggravating circumstances directly at the time of sentence. [30] The burden is therefore on the Appellant to demonstrate that the sentence imposed was outside the range of sentences properly available to the sentencing court. In the present case, the Appellant has failed to discharge that burden. F. MITIGATING FACTORS [31] This Court has considered the mitigating factors available to the Appellant. [32] First, the Appellant pleaded guilty to the charges. A plea of guilt may, in a proper case, be regarded as a mitigating factor as it saves judicial time, spares witnesses from the ordeal of testifying and may indicate a measure of remorse. [33] However, the mitigating value of a plea of guilt is not fixed or automatic. Its weight depends on the circumstances of each case, including the strength of the prosecution evidence, the timing of the plea, the nature of the offence and the extent to which the plea may properly be said to reflect genuine remorse. [34] In the present case, the prosecution evidence was overwhelming. The admitted facts disclosed powerful forensic evidence linking the Appellant to the offence. The DNA evidence recovered from multiple items at the scene and from the deceased's clothing strongly implicated the Appellant. The injuries on the Appellant were also consistent with a struggle between him and the deceased. [35] Secondly, the Prosecution did not produce any evidence of previous convictions against the Appellant. In the absence of any antecedent record, the Appellant was entitled to be treated as a first offender. [36] In PP v Iran Sakdon [1996] 6 CLJ 73, the Court recognised that the absence of previous convictions may constitute a mitigating factor warranting a reduction from the maximum sentence prescribed by law. Similarly, in Zaidon Shariff v PP [1996] 4 CLJ 441, the Court considered the relevance of previous convictions in the sentencing process. [37] This Court has accordingly taken into account that the Appellant was a first offender. This factor justified a sentence below the maximum term of forty (40) years' imprisonment. [38] Thirdly, this Court is mindful of the principle that justice must be tempered with mercy. Sentencing should not be purely punitive. The objectives of sentencing include punishment, deterrence, prevention, rehabilitation and the protection of society. [39] In PP v Rashid Ramli, the Court observed that public interest must reflect society's abhorrence of the crime through the imposition of elements of retribution and deterrence, but should also ensure the promotion of rehabilitation and reformation on the part of the accused. [40] Nevertheless, mercy cannot be applied in isolation. It must be balanced against the gravity of the offence, the suffering of the victim, the manner in which the offence was committed and the need to uphold public confidence in the criminal justice system. [41] In the present case, while the plea of guilt and the absence of previous convictions were duly considered, they were outweighed by the serious aggravating features of the offence. G. AGGRAVATING FACTORS [42] The aggravating features in this case are grave, multiple and compelling. [43] Firstly, the deceased was a young girl aged only sixteen (16) years and ten (10) months at the material time. She was below the age of eighteen. She was plainly a vulnerable victim. The Appellant, on the other hand, was an adult male aged thirty-one (31) years. [44] The disparity in age, maturity, physical strength and position between the Appellant and the deceased was significant. The deceased was in no real position to defend herself against the Appellant. This Court regards the vulnerability of the deceased as a substantial aggravating factor. [45] Secondly, the deceased was the Appellant's sister-in-law. The Appellant was not a stranger. He was a member of the deceased's extended family. He was a person who ought to have been a source of protection, care and safety to the deceased. [46] Instead, the Appellant betrayed that familial trust in the most serious manner. The offence was committed against a young girl within a familial setting, in a place where she ought to have been safe. Such betrayal of trust aggravates the moral culpability of the Appellant. [47] Thirdly, the manner of death was particularly cruel. The post-mortem findings established that the deceased died from asphyxia due to smothering. The act of smothering necessarily involves the obstruction of the mouth and nose, resulting in deprivation of oxygen. [48] This was not a case of instantaneous death. The deceased would have experienced fear, panic, physical distress, difficulty in breathing and suffering before death. The final moments of the deceased must have been terrifying and agonising. [49] The Court is entitled to take into account not only the fact that death occurred, but also the manner in which death was caused. A death by smothering reflects a direct, forceful and sustained act. It is a grave aggravating factor. [50] Fourthly, the admitted facts disclosed fresh injuries to the genitalia of the deceased. The forensic evidence revealed that the injuries were caused by the insertion of a hard and blunt object and that they were fresh injuries. [51] The presence of such injuries, taken together with the biological evidence recovered from the deceased's clothing and surrounding exhibits, disclosed a deeply disturbing course of conduct surrounding the commission of the offence. [52] Fifthly, the DNA evidence was extensive. The Appellant's DNA was found in semen and blood stains on numerous items, including the deceased's clothing, the mattress cover, the comforter, the pillow, the bolster and the deceased's fingernail clippings. The evidence of the deceased's fingernail clippings containing the DNA profiles of both the Appellant and the deceased further supported the finding that there had been a struggle. [53] Sixthly, the offence took place when the deceased's parents were away and when the deceased was alone with the Appellant. The Appellant exploited the situation where the deceased was isolated and vulnerable. [54] Seventhly, the offence resulted in the irreversible loss of a young life. The deceased was only sixteen years and ten months old. She had her future ahead of her. The sanctity of human life is a central consideration in sentencing for an offence under section 302 of the Penal Code. [55] The Court must mark society's condemnation of the unlawful taking of human life. A sentence that fails to reflect the gravity of such an offence would undermine public confidence in the administration of criminal justice. H. SENTENCING UNDER SECTION 302 OF THE PENAL CODE [56] Section 302 of the Penal Code is among the gravest offences known to criminal law. The offence concerns the unlawful taking of human life. The statutory punishment reflects Parliament's recognition of the seriousness of murder. [57] Following the abolition of the mandatory death penalty, the Court is vested with discretion to impose either the death sentence or imprisonment for a term between thirty (30) and forty (40) years, together with whipping of not less than twelve (12) strokes if the death sentence is not imposed. [58] The existence of judicial discretion does not mean that the gravity of murder is diminished. The abolition of the mandatory death penalty does not reduce the seriousness of the offence. It merely permits the Court to calibrate the punishment according to the facts and circumstances of each case. [59] In the present case, the Court did not impose the death sentence. The Appellant was instead sentenced to imprisonment. That in itself demonstrates that the Court had taken into account the mitigating factors, including the plea of guilt and the absence of previous convictions. [60] The sentence of thirty-two (32) years' imprisonment is only two (2) years above the statutory minimum of thirty (30) years and eight (8) years below the statutory maximum of forty (40) years. The sentence cannot, by any fair assessment, be characterised as manifestly excessive. [61] The whipping sentence of twelve (12) strokes was also the statutory minimum prescribed where the death sentence is not imposed. There is therefore no basis to contend that the whipping component was excessive. [62] Having regard to the cruelty of the manner of death, the vulnerability of the victim, the breach of familial trust, the sexual injuries and the extensive forensic evidence, a sentence at the bare statutory minimum would not have adequately reflected the seriousness of the offence. [63] The additional two (2) years above the statutory minimum was fully justified by the aggravating circumstances. Indeed, the sentence remained close to the statutory minimum despite the exceptionally serious facts of the case. I. CONCURRENT SENTENCES AND THE TOTALITY PRINCIPLE [64] The Appellant was sentenced to thirty-two (32) years' imprisonment and twelve (12) strokes of whipping for the first charge, and fifteen (15) years' imprisonment and ten (10) strokes of whipping for the second charge. [65] The custodial sentences were ordered to run concurrently. The practical effect of the order is that the Appellant will serve an effective custodial term of thirty-two (32) years' imprisonment, not forty-seven (47) years' imprisonment. [66] In PP v Shari Mohd Shariff [2005] 5 CLJ 439, the High Court, following Bachik Abdul Rahman v PP [2004] 2 CLJ 572, restated the principles governing concurrent and consecutive sentences. The Court is to be guided by the one transaction rule and the totality principle. [67] Under the one transaction rule, where two or more offences are committed in the course of a single transaction, the sentences should generally run concurrently rather than consecutively. However, the rule is not absolute, and consecutive sentences may be justified where the facts require it. [68] The totality principle requires the Court to look at the aggregate sentence and to ensure that it is just and appropriate. The Court must consider whether the total sentence properly reflects the overall criminality of the offending conduct, without becoming excessive or crushing. [69] In the present case, the order that the custodial sentences run concurrently was favourable to the Appellant. It avoided the imposition of an aggregate custodial sentence of forty-seven (47) years. It demonstrated that the sentencing court had given due consideration to the totality principle. [70] The effective term of thirty-two (32) years' imprisonment was therefore not crushing, excessive or disproportionate. On the contrary, it was a measured sentence that reflected both the gravity of the murder charge and the need to ensure that the total custodial sentence remained within a just and appropriate range. J. WHETHER THE SENTENCE WAS MANIFESTLY EXCESSIVE [71] The Appellant's principal complaint is that the sentence of thirty-two (32) years' imprisonment is excessive. This Court is unable to accept that contention. [72] The sentence imposed was within the statutory range. It was close to the minimum sentence prescribed by law. It did not approach the maximum sentence of forty (40) years. The death penalty was not imposed. The whipping imposed was the statutory minimum. [73] The Court had considered the Appellant's plea of guilt and his status as a first offender. These factors were reflected in the fact that the Court did not impose the death sentence or a sentence near the maximum of forty (40) years. [74] However, the Court was also required to consider the aggravating circumstances. The deceased was a young and vulnerable girl. The Appellant was an adult male and her brother-in-law. The offence involved a serious breach of trust. The manner of death by smothering involved suffering and distress. There were fresh genital injuries. The forensic evidence was overwhelming. [75] In these circumstances, a sentence at the statutory minimum would have failed to sufficiently reflect the gravity of the offence and the culpability of the Appellant. [76] A sentence of thirty-two (32) years' imprisonment, being only two (2) years above the minimum, was proportionate. It was neither harsh nor excessive. It was a sentence properly available to the sentencing court upon the admitted facts. [77] This Court is also mindful that sentencing must serve the public interest. In offences involving murder, particularly where the victim is vulnerable and the offence is committed by a person in a position of familial trust, the sentence must reflect society's denunciation of such conduct. [78] Public confidence in the administration of criminal justice requires that offences involving the unlawful taking of a young life be met with sentences that are sufficiently serious. A sentence that is unduly lenient would fail to give proper recognition to the harm suffered by the deceased and her family. [79] The sentence imposed in the present case struck a proper balance between the mitigating and aggravating factors. It recognised the Appellant's plea of guilt and first offender status, while at the same time giving due weight to the seriousness of the offence. K. FINDINGS OF THE COURT [80] Upon considering the totality of the evidence and the submissions, this Court makes the following findings. [81] First, the Appellant's conviction on the first charge was based on his own unequivocal plea of guilt and his admission of the facts tendered by the Prosecution. [82] Secondly, the sentence of thirty-two (32) years' imprisonment and twelve (12) strokes of whipping was within the statutory framework under section 302 of the Penal Code. [83] Thirdly, the sentence was not imposed arbitrarily. It was imposed after consideration of the admitted facts, the mitigation, the absence of previous convictions, the plea of guilt, the seriousness of the offence and the aggravating circumstances. [84] Fourthly, the aggravating circumstances were substantial. They included the vulnerability of the deceased, the age and gender disparity between the Appellant and the deceased, the relationship of trust, the cruel manner of death, the suffering endured by the deceased, the fresh genital injuries and the extensive forensic evidence linking the Appellant to the offence. [85] Fifthly, the sentence was only two (2) years above the statutory minimum and eight (8) years below the statutory maximum. It was therefore plainly not manifestly excessive. [86] Sixthly, the order that the custodial sentences run concurrently demonstrated that proper regard had been given to the totality principle. [87] Seventhly, there was no error of principle, no illegality, no failure to consider relevant matters and no consideration of irrelevant matters. L. CONCLUSION [88] Murder is an offence of the utmost gravity. The Court must give due weight to the sanctity of human life, the suffering of the victim, the culpability of the offender and the public interest in ensuring that serious offences are met with appropriate punishment. [89] The deceased in this case was a young girl aged only sixteen (16) years and ten (10) months. She died by asphyxia due to smothering. The evidence disclosed that she must have endured distress, fear and suffering before death. The Appellant was her brother-in-law and an adult male who ought to have protected her. Instead, he abused the trust arising from that relationship and brought about her death. [90] The mitigating factors relied upon by the Appellant were properly considered. However, they were outweighed by the grave aggravating features of the case. The sentence imposed was not excessive. It was proportionate, lawful and in accordance with established sentencing principles. [91] For the foregoing reasons, this Court is satisfied that the sentence of thirty-two (32) years' imprisonment and twelve (12) strokes of whipping imposed upon the Appellant in respect of the first charge is neither manifestly excessive nor wrong in principle. [92] Accordingly, the appeal against sentence is dismissed. The sentence imposed in respect of the first charge is affirmed. The order that the custodial sentences run concurrently from the date of arrest is also affirmed. Order accordingly. Date: 15 Jun 2026 (AZHAR BIN MOKHTAR) Pesuruhjaya Kehakiman Mahkamah Tinggi (4) Kota Bharu Kelantan Darul Naim Counsels: En. Ahmad Faiz Fitri bin Mohamad Deputy Public Prosecutor Pejabat Pendakwaan Negeri Kelantan AG-3-03-06, Al-Waqah@Tunjong Tingkat 3, Bangunan H-Elite Design, 16010 Kota Bharu, Kelantan Darul Naim Puan Latifah binti Arifin Tetuan Latifah Arifin & Co Lot 1105, Seksyen 52, Jalan Dato' Lundang, 15200 Kota Bharu, Kelantan Darul Naim Cases and their citations (as they appear in the judgment) - Public Prosecutor v Jafa bin Daud — 1 MLJ 315 - PP v Iran Sakdon — 6 CLJ 73 - Zaidon Shariff v PP — 4 CLJ 441 - PP v Rashid Ramli — not cited with a law report reference in the judgment (no year/volume/page given) - PP v Shari Mohd Shariff — 5 CLJ 439 - Bachik Abdul Rahman v PP — 2 CLJ 572 Statutes (sections) stated in the judgment - Criminal Procedure Code — section 173(b) - Penal Code — section 302 - Penal Code — section 376(4)