Deputy Public Prosecutor (DPP) Mohamad Shahrizzat bin Amadan v AHMAD ZUKRI BIN MOHD LAZIM (CA – 83 – 322 – 07 / 2017)

Thus it is not surprising when Women Aid Organization in its 2017 reports “Perspective On Domestic Violence” disclosed an alarming facts on domestic violence cases in Malaysia where it is estimated that over 800,000 women in Malaysia have likely experienced abuse by partner (based on a study conducted by the 5 Women’s Development Research Centre (KANITA) in Universiti Sains Malaysia). [ 20 ] Despite the disturbing figure of violence against women, most society treats domestic violence as a private matter of the family – a highfalutin reason to shun victims of violence away. Ofttimes, 10 victims were told to keep their lips tight and were left in the lurch, wailing in pain silently whilst the culprits roamed free after slipping through the cracks of the system. According to Falvia Agnes

in her article “Victims of Violence Faced Judicial Bias”, deliberate mistreatment towards victims of violence has become 15 recrudescent strain of plague that permeates the mind of society. [ 21 ] At present, ignorance no longer remain to be the main culprit in domestic violence cases. On 31 December 2014, in response to soaring clamors against domestic violence, the Parliament of Malaysia enacted section 326A of the Penal Code. Now, the once 20 reticent evil is considered as an offence under the federal law. [ 22 ] Coming back to the facts of the case before me, Ahmad Zukri has pleaded guilty to an offence of voluntarily hurting Rosni, an offence under section 323 of the penal Code. As Rosni is Ahmad Zukri’s wife, the charge must be read together with section 326A of the 25 Penal Code. [ 23 ] It is rightful to say that behind closed door, every battered victim cried in pain, longing for help from the society. Section 326A of 7 the Penal Code is a new dawn of hope for every battered victim whose suffering was kept mummed all these while. YB Hajah Nancy binti Shukri in her second reading speech on the Penal Code (Amendment) Bill, asserted strongly before the members of the House of the government’s alacrity in reforming the law to fight 5 domestic violence by stating the following: Kerajaan amat memandang serius perbuatan keganasan yang dilakukan oleh pasangan yang berkahwin terhadap pasangannya. Dua seksyen baru telah dimasukkan bagi meningkatkan penalti yang lebih 10 tinggi sekiranya kecederaan dilakukan oleh pasangan atau sekiranya kekerasan jenayah dilakukan oleh pasangan. Seksyen baru 326A berkenaan kecederaan telah menetapkan bahawa pasangan yang disabitkan di bawah seksyen 323, seksyen 324, seksyen 325, 15 seksyen 326, seksyen 334 atau seksyen 335 akan dihukum dengan pemenjaraan selama dua kali ganda tempoh hukuman maksimum yang ditetapkan di bawah seksyen yang mana dia disabitkan. (Note: The speech can be found in Penyata Rasmi 20 Parlimen Dewan Negara, Parlimen Ketiga Belas, Penggal Pertama, Mesyuarat Ketiga, pp. 24 – 25). [ 24 ] For better understanding on the sentence provided under section 326A of the Penal Code, the said sections are produced as follows: Section 323 of the Penal Code 25 Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment for a 8 term which may extend to one year or with fine which may extend to two thousand ringgit or with both. Section 326A of the Penal Code

Whoever causes hurt to his spouse or former spouse, a 5 child, an incapacitated adult or other member of the family and commits an offence under section 323, 324, 325, 326, 334 or 335 shall be punished with imprisonment for a term which may extend to twice of the maximum term for which he would have been liable on conviction for that 10 offence under the relevant section notwithstanding any other punishment provided for that offence.

For the purpose of this section, "spouse", "child", "incapacitated adult" and "other member of the family" have the meanings assigned to them in section 2 of the Domestic 15 Violence Act 1994. [ 25 ] It is to be noted that the word “shall be punished with imprisonment” is the spinal column of section 326A of the Penal Code. The fundamental principle in interpreting the word “shall be punished with” goes back much further to a decision made by KC 20 Vohrah J in Public Prosecutor v. Nordin Yusmadi [1996] 2 CLJ 90 where he quoted Federal Court decision in PP v. Agambaran s/o Kane Appeal No. 73 of 1983 withholding the same wisdom on the interpretation of the word “shall be punished with” under section 376 of the Penal Code. 25 [ 26 ] It follows therefore, the word “shall be punished with imprisonment” under section 326A of the Penal Code must be read in the light of 9 the case of PP v. Hassan Ali Abdul Razak [2016] 9 CLJ 584. In the said case, Zulkifli Bakar J has held that the word “shall be punished with” gives no discretion to the Court as it carries mandatory connotation. [ 27 ] The judgment in Mani Maran Athigharee v. PP [2017] 9 CLJ 232 5 soup up my finding for mandatory custodial sentence under section 326A of the Penal. In the said case, the judge states the following: It is clear that the maximum term of imprisonment which may be imposed on the appellant if he is convicted 10 under s. 323 of the Penal Code is one year. It follows therefore by simple mathematical formula that the mandatory term of imprisonment under s. 326A of the Penal Code in respect of offences under s. 323 shall be two years. 15 [ 28 ] In his plea, Ahmad Zukri requested his sentence be marked down as he has to care for his children, mother and 3 foster children. There was no mentioning about him regretting what he has done to Rosni before this nor there was any mentioning about taking care of Rosni who has suffered numerous injury due to his doing. 20 In my point of view, Ahmad Zukri was not remorseful at all. To award lenient sentence in my considered opinion would render the intention of the Parliament a complete otiose. That cannot be the result intended by Parliament when it enacted the provision. [ 29 ] There was no justification to account Ahmad Zukri’s truculent 25 actions against Rosni. Ahmad Zukri is Rosni’s husband, it is befitting for him to be the primary income earner in his family. 10 Instead, he has put an arm on Rosni for his own pleasure. She was viciously assaulted over a small amount of money. [ 30 ] As a supplementary facts to the above findings, Rosni, as the result of the assault by Ahmad Zukri, has suffered numerous injuries all over her body as evidenced from exhibit P5 and medical 5 report at exhibit P6. It is clear that Ahmad Zukri, during the assault, was targeting Rosni’s vital parts i.e. the face, neck and pelvis. Having lived together with the assailant, Rosni must have endured depressing mire of misery and extreme trepidation before she managed to get help. Even when she received treatment on 2 of 10 July 2017 i.e. 2 days after the assault took place, the injuries were still very much in evidence on her body. [ 31 ] On illative perspicacity, domestic violence is a serious offence, so serious even bond of good behavior provided under section 294 of the Criminal Procedure Code is ruled out to any offender who is 15 charged with the commission of an act of violence. [ 32 ] What was done to Rosni undoubtedly was a vile and wanton assault on her rights as a human and as a wife. Apart than violating human rights, Islamic scholars censure violence against women for it goes against the teachings of Islam. Azizah Y. al-Hibri (2003) 20 in her journal “An Islamic Perspective on Domestic Violence”, Vol. 27 Fordham International Law Journal, 212 expressed strongly her disapproval against domestic abuse by saying: “Domestic violence will cause more than a simple discord between spouses. It will cause fear, misery, and oppression”. Principally, domestic 25 violence is considered to be unacceptable act in Islam (Nada Ibrahim (June 13, 2017), “What Islam Actually Says About Domestic Violence”, Sydney Morning Herald). 11 [ 33 ] Ann Veilleux, a psychotherapist in her article: “Why Women Stay: Understanding The Battered Wife” engraved her concern over the absent of awareness among the society over domestic violence by stating: “The injustice of abuse is all the more destructive when society punishes through ignorance”. Thus, the sentence to be 5 awarded must proportionate the crime and must serve as a condign punishment for Ahmad Zukri’s use of brute force against Rosni. [ 34 ] Basing on the facts and law discussed in the above and taking into consideration that domestic violence is a serious offence apart 10 than being satisfied that the conviction is safe, I hereby order Ahmad Zukri to serve 24 months of imprisonment with effect from 04 July 2017. 15 NORDIANA BINTI ABD AZIZ Mahkamah Majistret Kuantan 10 November 2017