Dumpangol Bin Borongkas v Pendakwa Raya (S-05(H)-102-03/2024)

The appellant (Dumpangol) in Appeal S-05(H)-102-03/2024, the appellant Juanis in Appeal S-05(H)-103-03/2024 were convicted of the offence of committing culpable homicide under section 304(a) of the Penal Code. As we heard their respective appeals together and the said appeals are related, we shall issue only the instant judgment to state the reasons for our decision.

The appellants together with one Joshua Putong were accused of committing murder with common intention under section 302 of the Penal Code. The charge read as follows: That you all on 28th day of March 2020, between 8.00 p.m. to 10.00 p.m. located at Rumah Kongsi in the Ladang Muncul Maju, District of Beluran, in the State of Sabah, did commit murder by causing death of one Mohd Fazle Bin Mide (Male/25 years old) and that thereby committed an offence punishable under section 302 of the Penal Code (Act 574) of S/N 6y2q0bqi00aMzqeNWjdtvg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 the law of Malaysia read together with section 34 the same code.

They claimed trial. At the close of the prosecution’s case, the learned High Court Judge ruled that the prosecution had established a prima facie case against the appellants and Joshua Putong on the charge of murder and called for their defence. Each of them gave sworn evidence. At the end of the case for the defence, the learned High Court Judge convicted the appellants and Joshua Putong of the lesser offence culpable homicide not amounting to murder under section 304(a) of the Penal Code read together with section 34 of the same code.

The appellants were each sentenced to 18 years’ imprisonment from date of arrest. Joshua Putong who was 17 years old at the material time was sentenced to eight years’ imprisonment from the date of arrest. The prosecution did not appeal against the decision of the learned High Court Judge to reduce the charge. The instant appeals were brought by the appellants, Dumpangol and Juanis, to challenge the sentence imposed by the High Court. They did not appeal against the conviction. Joshua Putong did not file any appeal, either against conviction or sentence. In the premises, the learned High Court Judge only gave her reasons for the sentences she imposed on Dumpangol and Juanis. S/N 6y2q0bqi00aMzqeNWjdtvg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

The background facts were carefully summarized by the learned High Court Judge in her judgment on sentence. They are derived from the evidence in the case. We shall likewise refer to the material facts as set out in the judgment and the testimonies of the key witnesses, namely the victim’s wife, the appellants and the pathologist.

The victim in this case was Mohd Fazle bin Mide, aged 25 at the time of his death. He lived with his family in a rumah kongsi provided for plantation workers at Ladang Muncul Maju, in the Beluran District of Sabah. On the night in question, at about 10.00 p.m., two men entered his quarters at the rumah kongsi. PW9, the victim’s wife, who was then heavily pregnant, was present and later gave eyewitness testimony of the traumatic incident that she had to endure.

She testified that of the two men who initially entered her house, one was the Ketua Kampung. She identified Dumpangol as the Ketua Kampung. She further stated that the other man was armed with a bakakuk, a homemade firearm. At that time, her husband was lying down in the living room. According to her, one of the men pointed the bakakuk at the victim. Dumpangol questioned the victim as to whether he said earlier that he was unafraid of the police. The victim responded by asking why they were directing their torchlights on him. S/N 6y2q0bqi00aMzqeNWjdtvg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

Thereafter, Dumpangol and the other man launched a brutal assault upon the victim, who was still lying down in the living room. They repeatedly stomped on his face and continued to kick his body and strike him relentlessly, ignoring the desperate pleas of his pregnant wife who begged them to desist. Her young children were with her that time.

After the initial blows, her husband was left defenceless, unable to protect himself. Her repeated cries for them to stop went unheeded, and she was shoved aside. Not satisfied with the assault, yet another man, who had been waiting in the car, entered the living room to join in the attack. He beat and kicked her husband about four times. When he was done kicking her husband, she ran to cradle her husband in her arms. He appeared very weak to her. By that point, the victim had endured a brutal beating by the three men for a full ten minutes. Unfortunately, according to PW9, the cruel attack did not cease. The man who was holding a bakakuk went out of the living room and returned with a broomstick. He beat the back of the victim with great force. In the course of that attack, she was also injured as her right hand became swollen. The men only left after she begged them again saying she was pregnant and has young children.

The finding of the pathologist was that the victim suffered serious injuries on the head, chest and other parts of the body. The cause of death was multiple blunt force trauma.

The learned High Court Judge observed that the appellants and Joshua, in their sworn evidence, did not dispute that the victim S/N 6y2q0bqi00aMzqeNWjdtvg **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 had been violently attacked in the incident. However, Juanis and Joshua contended that their roles were minimal, asserting that they had merely accompanied Dumpangol to the victim’s house. For the purpose of appreciating the circumstances of the involvement of the appellants, we shall recount their versions. We bear in mind that a criminal sentence is personal to the offender, and that the individual circumstances of the crime may provide some measure of mitigation. However, for purpose of the instant appeal, the fact of the attack on the victim by appellants, the element of joint criminal responsibility and the element of causation cannot be disputed as they did not appeal against the conviction.

Dumpangol who was 45 years old at the material time. He said that he had served the community as Ketua Kampung since 2018. He said that he made a “mistake” of confronting the victim after drinking alcohol. He said that his intention was to give “advice” to the victim for an earlier incident when the victim had ignored instructions from him regarding fishing in an area reserved for villagers. He also said that the victim threw the first punch although his widow said that he was lying down in the living room that night. Dumpangol said that he has nine children and a wife who requires regular medical attention. He said that he did not intend to cause the death of the victim and is remorseful.

As for Juanis, he was thirty years of age at the material time. Being the nephew of Dumpangol, he stated that he had been persuaded by his uncle to accompany him to the Rumah Kongsi. He is married with two young children, and his wife suffers from a kidney ailment requiring S/N 6y2q0bqi00aMzqeNWjdtvg **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 regular medical attention. As the sole breadwinner of the family, he emphasised his personal responsibilities. He further admitted that he had consumed alcohol prior to his uncle’s request that he accompany him to the victim’s quarters. He said that this was the only factor contributing to his involvement, as he otherwise had no reason to cause the victim’s death.

The learned High Court Judge gave due consideration to the mitigating factors advanced on behalf of Dumpangol and Juanis. However, in view of the gravity of their conduct in brutally assaulting the victim to death in the presence of his pregnant wife and children, and within the confines of his own home at night, Her Ladyship concluded that such factors did not warrant serious consideration. In relation to Dumpangol, the learned High Court Judge observed that, as the Ketua Kampung of the area, he ought to have known better than to allow his bruised pride to dictate his actions when the victim failed to heed his advice. As for Juanis, Her Ladyship was of the view that his relationship as nephew to Dumpangol was of little mitigating value, as he had actively participated in the assault and was not a mere passive companion. With regard to intoxication, she found that both appellants remained sufficiently aware of their actions in the circumstances of the case.

The main ground of appeal advanced by both appellants are substantially similar, namely that the sentence of eighteen years’ S/N 6y2q0bqi00aMzqeNWjdtvg **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 imprisonment is manifestly excessive and inconsistent with prevailing sentencing trends.

The argument advanced by counsel for Dumpangol is as follows. Dumpangol was the Ketua Kampung in the area and, in that capacity, sought merely to “talk” to the victim. He had no intention of killing him. No weapon was used in the assault, and he was under the influence of alcohol at the time. The learned High Court Judge considered these factors but concluded that they did not amount to significant mitigation. Given the facts as outlined earlier, we cannot say that Her Ladyship erred in principle. At the material time, Dumpangol was over 45 years of age and, as the Ketua Kampung, he ought to have known better than to beat the victim to death in his own house and in the presence of his family.

Counsel for Dumpangol relied on certain authorities to contend that the sentencing trend was not adhered to. The cases cited were Public Prosecutor v Rajandran Sanashi & Ors [2018] MLJU 1402, Public Prosecutor v Kammoon Wangga & Anor [2009] 8 MLJ 430, and Vinaga Moorthy a/l Gopal v Public Prosecutor [2003] 2 MLJ

We shall consider them below. [18] The decision in Public Prosecutor v Rajandran Sanashi & Ors (supra) affords no assistance in discerning the sentencing trend for an offence under section 304(a) of the Penal Code. The offence S/N 6y2q0bqi00aMzqeNWjdtvg in that case concerned section 43 of the Societies Act 1966, namely the offence of being a member of a gang. [19] In Public Prosecutor v Kammoon Wangga & Anor (supra), the two accused assaulted the victim with their bare hands and a piece of wood, having suspected him of stealing their wallet. They were charged under section 302, and in the alternative section 304(a), of the Penal Code. They pleaded guilty to the alternative charge. The High Court meticulously analysed a lengthy line of precedents, in which sentences ranged between 8 and 14 years. His Lordship imposed terms of 8 years and 8½ years respectively on the accused persons. However, the offence was committed in 2006, prior to the amendment of the law which increased the maximum term of imprisonment from 20 years to 30 years. In the premises, both this case and the precedents discussed therein must be approached with caution when considering the current sentencing trend. [20] In the third case, namely Vinaga Moorthy a/l Gopal v Public Prosecutor (supra), the accused, together with six others, caused the death of the deceased. He pleaded guilty to a charge under section 304(a) of the Penal Code and was sentenced to 12 years’ imprisonment. The appellant challenged the severity of the sentence in the Court of Appeal, but the appeal was dismissed. It must be observed, however, that the sentence of 12 years imprisonment was imposed by the High Court prior to the amendment of the law which increased the maximum punishment for the said offence from 20 years’ imprisonment to 30 years. S/N 6y2q0bqi00aMzqeNWjdtvg [21] On the other hand, learned Deputy Public Prosecutor referred to the case of Pendakwa Raya v Cao Van Luyen [2016] 4 MLJ 161, together with a table listing nine unreported cases involving convictions under section 304(a) of the Penal Code. In the reported case, the Court of Appeal enhanced the sentence of 10 years’ imprisonment to 18 years, where the accused had fatally stabbed the victim. The Court of Appeal observed that Parliament intended to extend the term of incarceration for life imprisonment from 20 years to 30 years, and that previous sentencing precedents should be assessed in this light. In the other unreported cases cited in the table, the sentences for the same offence ranged between 18 and 25 years’ imprisonment. [22] For the foregoing reasons, we are unable to conclude that the High Court imposed a sentence on Dumpangol which was inconsistent with prevailing sentencing trends or disproportionate to the gravity of the offence. Appeal of Juanis [23] We now turn to the submissions of counsel for Juanis. Learned counsel contended that, in cases of group violence, the role of each accused must be individually assessed for the purposes of sentencing, so as to ensure fairness. In the present case, it was submitted that, given that Dumpangol was both his client’s uncle and the Ketua Kampung, Juanis “might have felt a sense of duty or pressure to act when the aggression” initiated by his uncle escalated. Counsel further argued that the assault lasted only some ten minutes S/N 6y2q0bqi00aMzqeNWjdtvg and that no deadly weapons were employed. He candidly conceded that his client struck the victim with a stick and, in the course of doing so, also struck the victim’s pregnant wife. However, he maintained that Juanis acted as part of the overall assault at a stage when the victim was already incapacitated, and that the injury inflicted upon the victim’s wife was unintended. [24] We find no merit in the above grounds canvassed by counsel for Juanis. From the judgment of the High Court, it is clear that the individual circumstances of Juanis were not conflated with those of Dumpangol. The learned High Court Judge was mindful that Juanis was the nephew of Dumpangol and he had been asked to accompany him. Nevertheless, Her Ladyship concluded that Juanis’s active participation merited similar treatment as that of Dumpangol. Juanis drove the vehicle that conveyed the assailants to the Rumah Kongsi and took an active role in the attack. He wielded a stick and even injured the victim’s pregnant wife. The fact that Juanis struck the deceased with a stick when he was already “incapacitated” cannot be regarded as a mitigating factor. It may well have been the final blow that sealed the victim’s fate and shows the degree of callous cruelty inflicted on him. Therefore, we find the High Court did not err in declining to treat these matters as providing significant mitigation for such a senseless and brutal act. [25] Next, we consider the trend of sentencing argument advanced by counsel for Juanis so forcefully. He cited the cases of Ramakrishnan a/l Subramaniam v Public Prosecutor [2013] 2 MLJ 549, Pubalan a/l Peremal v Public Prosecutor [2020] 5 MLJ 442, S/N 6y2q0bqi00aMzqeNWjdtvg Public Prosecutor v Ribin bin Osman [2017] 3 MLJ 532, Neelamegan a/l Kumar v Pendakwa Raya [2024] 2 MLJ 876 and Muhammad Akmal Zuhairi bin Azmal & Ors v Pendakwa Raya [2025] 3 MLJ 464. [26] The argument of counsel for Juanis is that in the cases cited above, the accused person was punished with sentences ranging from 12 years imprisonment to 18 years imprisonment for cases where greater violence, torture or cruelty was involved compared to the instant case. We are not persuaded by this argument for the following reasons. [27] We agree that Ramakrishnan a/l Subramaniam v Public Prosecutor (supra) concerned an exceptionally brutal case involving prolonged suffering and torture inflicted by five accused persons as submitted by counsel for Juanis. The High Court imposed sentences ranging from eleven to thirteen years’ imprisonment. On appeal, the Court of Appeal enhanced the sentences to fifteen years’ imprisonment for four of the accused, and to eighteen years’ imprisonment for the fifth. It must, however, be observed that the offence was committed in 2007, at a time when life imprisonment was statutorily defined as twenty years’ imprisonment unlike now where it is 30 years. The outcome in respect of sentence might well be different under the present law. Thus, this case is not a suitable precedent. [28] Another exceptionally brutal case in which the perpetrators were sentenced to eighteen years’ imprisonment is the recent decision in Muhammad Akmal Zuhairi bin Azmal & Ors v Pendakwa S/N 6y2q0bqi00aMzqeNWjdtvg Raya (supra), which attracted considerable public attention. In that case, a student was accused by his fellow students of stealing a computer. A large group then subdued and tortured him over a period of time, ultimately causing his death. A hot iron was used in the course of the assault. Five students were charged with murder, while a sixth faced a charge of abetment. The High Court convicted them of culpable homicide under section 304(a) of the Penal Code and imposed sentences of eighteen years’ imprisonment. The Court of Appeal substituted those convictions with murder. However, the Federal Court restored the decision of the High Court, thereby affirming the punishment of eighteen years’ imprisonment. Counsel for Juanis argues that in a case of such atrocity, compared to that of his client, the sentence imposed was only eighteen years. [29] We are not persuaded that Juanis deserves a lesser punishment merely because the group of young students in the above case were given the same punishment where greater violence was involved. Juanis is a considerably older man of 30 years. A pregnant wife had pleaded with him not to attack her half dead husband (longlai). Instead, without a dram of mercy, not only he landed a hard blow on the victim with a stick but also injured her in the process. [30] The third exceptionally brutal case cited by counsel for Juanis is Neelamegan a/l Kumar v Pendakwa Raya (supra). In that case, three accused persons attacked and killed the victim by stomping on him and assaulting him with a metal rod and a stick. The accused who stomped on the victim and the one who struck him with a stick were each sentenced to ten years’ imprisonment, while the accused who S/N 6y2q0bqi00aMzqeNWjdtvg used the metal rod received a sentence of twelve years’ imprisonment. [31] The argument advanced by counsel for Juanis in relation to the above case mirrors the submission he had earlier made, namely that the victim in Neelamegan a/l Kumar v Pendakwa Raya (supra) was subjected to greater violence than in his client’s case. However, it is not apparent what factors were taken into account by the Court of Appeal when imposing those sentences, following its decision to overturn the High Court’s convictions for murder and substitute them with convictions under section 304(a) of the Penal Code for all three accused. The other authorities relied upon by counsel for Juanis are as follows. [32] In Pubalan a/l Peremal v Public Prosecutor (supra), the conviction for murder was reduced by the Federal Court to culpable homicide not amounting to murder under section 304(a) of the Penal Code. The brief facts were that the appellant had been embroiled in a quarrel with three of his brothers-in-law, including the victim, which persisted for several hours, culminating in the appellant stabbing the latter to death. The Federal Court substituted the death sentence with fifteen years’ imprisonment. However, the judgment contains no discussion of the relevant sentencing factors. This case is not an appropriate precedent, as the appellant’s conduct arose from a serious family altercation and involved a lone attack, albeit with the use of a weapon. In any event, the difference between fifteen and eighteen years’ imprisonment falls within the discretionary range of the sentencing court. S/N 6y2q0bqi00aMzqeNWjdtvg [33] In Public Prosecutor v Ribin bin Osman (supra), the brief facts were these. The accused killed the victim, who had been conducting an affair with his wife. The killing occurred after the victim was lured into meeting the accused’s wife. The accused was not tried for murder, as he pleaded guilty in the High Court to the alternative charge under section 304(a) of the Penal Code and was sentenced to twelve years’ imprisonment. That sentence was affirmed by the High Court. In our view, this case likewise does not provide a suitable precedent. There were aggravating features present. The accused’s wife had alleged that she was coerced into sexual relations by the victim, as a means of avoiding default on instalment payments for certain electronic goods. Furthermore, although the offence was committed in 2015, that is, after the amendment to the law which increased the definition of life imprisonment from twenty to thirty years, all of the precedents considered in the judgment pre-date that amendment. [34] On the other hand, the learned Deputy Public Prosecutor referred us to the same authorities as in the case of Dumpangol. As we have noted earlier, the sentences in those cases ranged between 18 and 25 years’ imprisonment. [35] For the above reasons, we are not persuaded that the High Court erred in not giving sufficient regard to sentencing trend. S/N 6y2q0bqi00aMzqeNWjdtvg Conclusion [36] In coming to our conclusion with respect to the sentencing trend argument in the appeals Juanis and Dumpangol, we would also make these observations. [37] Due regard to sentencing trends is certainly of great value, for it promotes consistency in punishment and reduces undue disparity. This, in turn, fosters greater public confidence in the sentencing process. Nevertheless, sentencing trends distilled from decided cases ought not to be treated as rigid standards to be applied mechanically. Consideration must also be given to general sentencing principles. Without such consideration, the court’s discretion to impose a sentence tailored to the particular facts of a case would be unduly fettered. Thus a fair balance must therefore be maintained between adherence to sentencing trends and the proper evaluation of all other relevant factors. [38] Furthermore, when an appellate court is invited to vary a sentence imposed by a court of first instance, it should not merely ask itself whether it might have been minded to impose a different sentence. The more pertinent inquiry is whether the sentence imposed was arrived at upon a correct appreciation of the governing sentencing principles, with due regard to all relevant considerations, particularly, whether it is disproportionate. Otherwise, the primary sentencing discretion vested in the court of first instance would be rendered illusory. S/N 6y2q0bqi00aMzqeNWjdtvg [39] For the reasons given earlier in the case of Juanis and Dumpangol, we find that interference with the sentencing discretion of the High Court is not warranted. It was arrived at after due consideration of all factors and is not manifestly excessive or disproportionate to the crime that they committed. [40] For the above reasons, we dismissed their appeals and affirmed the decision of the High Court. Dated: 6th October 2025 SGD (RAVINTHRAN PARAMAGURU) JUDGE COURT OF APPEAL MALAYSIA PUTRAJAYA Parties Appearing: For the Appellant : Lim Chun Yuan Cassandra Ho Yan Yan [Messrs MG’s Legal Chambers] For the Respondent : Mohd Fuad bin Abdul Aziz Deputy Public Prosecutor Attorney General’s Chamber S/N 6y2q0bqi00aMzqeNWjdtvg