Nurzalyeni Aryssha Binti Razali v Pendakwa Raya (WA-42S-5-06/2023)

(1) any person who, being a person having the care of a child—

abuses, neglects, abandons or exposes the child in a manner likely to cause him physical or emotional injury or causes or permits him to be so abused, neglected, abandoned or exposed; … commits an offence and shall on conviction be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding ten years or to both. …

a parent or guardian or other person legally liable to maintain a child shall be deemed to have neglected him in a manner likely to cause him physical or emotional injury if, being able to so provide from his own resources, he fails to provide adequate food, clothing, medical or dental treatment, lodging or care for the child.

a person may be convicted of an offence against this section notwithstanding that—

…

the child in question has died. (emphasis is mine) Juxtaposing the preferred charge against section 31(1)(a) of Act 611, the ingredients of the offence which has to be made out or proved by the prosecution are: a) The victim is a child; b) The accused has care over the victim during the date and duration of time period specified in the charge; and c) At the material time of care by the accused, the child victim, was neglected until it has caused her death. [21] On a curial scrutiny of the evidence adduced by the PWs, the SCJ was correct in arriving at the finding that a prima facie case has been made out pursuant to proof offered by the prosecution, in respect of the following ingredients:

The victim is a child It is clearly so, as Khalisa Zara binti Abdul Rahim, was a child of three (3) years old, according to P28, her birth certificate. This piece of evidence was not rebutted, thus deemed admitted.

The accused had care over the victim during the date and duration of time specified in the preferred charge against her. This ingredient too has been proven. Perusing the amended charge, on the date 16.4.2022 and duration of time period between 1.00 am to 2.15 am, pursuant to the testimony of SP5, since mid-February 2022, the accused and victim came to the unit where she was living at the condominium, to stay with her and her sons and grandson. It was also confirmed by her that the accused was living in with her son Azlan as his female partner with her child, in the room “I” at the said unit. Further, since March 2020, SP3 the former husband of the accused, had confirmed, it was the accused whom had the care and custody of her child turned victim in the present case. Therefore, it is apparent pursuant to their testimony, the child victim was under the care and custody of the accused at the material time specified in the charge, before the child died.

The accused had neglected the child and the neglect had caused the child physical injury. Easing back into the facts and circumstances of the case, the accused as the mother of the child Khalisa Zara binti Abdul Rahim had custody and care of her. Again, testimony by SP5 has established beyond doubt that the accused left the victim alone in the room, before she went out with her and Azlan to the shop. It is also a fact that the sliding door to the balcony was left opened, and her child was able to go through it before she fell off from the 18th floor of the condominium. Falling of the child and her death was confirmed in the post-mortem report P5, that she died after succumbing to multiple injuries arising out of the fall from height. If only the accused had ensured the sliding door to the balcony was closed and an adult including her to be with the child at the material time, the child would not have fallen and died. Thus, the death of the child was a direct result from her neglect, as a mother. Moreover, as a mother of the child, she is liable in law to maintain and care for her child but instead left her alone at the condominium unit at the wee hours of the morning. The law pursuant to section 31 (4) of Act 611, deems that she had neglected her own child whom had fallen from a height and died. Her neglect is inexcusable in law, as it is within her resources to provide care for her own child, but she had failed to do so, at the material time. Life of the child could have been saved, if she did not leave the unit with Azlan to the shop. Even, if it is true that she wished to acquire “Kool Fever” for her child, she could have gotten Azlan or SP5 to obtain it for the child. If she would have done that, a life could have been saved. But, instead she neglected her role to care for her own child who was of tender years, by leaving her alone at the condominium unit at the material time. A child in that circumstance would be likely to have wandered helplessly to look for her mother, until she walked out of the room “I” to the balcony, and fell off from a great height. In her defence, she had testified under oath that on the night of the incident, she admitted to have left the victim alone sleeping in the room but allegedly ensured the balcony door was locked. She claims not to have left the balcony door open. She had alleged SP5 was not speaking the truth, thus she is not a credible witness and she had a motive to fabricate evidence against her. Further, she had testified, she had always taken good care of her child and loved her very much. She turned out shocked and grieved after the incident. No other witness was called by her to testify on her behalf in order to support or bolster her defence. It is reckoned that her testimony is bizarre, as it is her child who was left all alone, when she ought to have been with her all the time and not left unattended. As to whether the balcony door was left closed or opened, is a risk she had taken, as human mind fails due to forgetfulness wherein, at times even after having locked the door allegedly, it may have been left open. To that extent she cannot blame SP5, who has no blood relationship with her nor the child to have ensured the balcony door was closed. The law pursuant to Act 611 demands for the accused as the mother to take care of her own child, come rain or shine as it is her responsibility. It is for a reason Act 611 was enacted, as prior to the enactment, incidences of this nature go unpunished, when in the past such incidences are not normal. But later due to decadence in values, cases of child abandonment, abuse do occur regularly, hence the promulgation of Act 611. On the above footing and juxtaposing with the evidence adduced by the PWs, the SCJ was correct to find her testimony to be inconsistent and lacking in credibility, as she had failed to provide a reasonable explanation as to how the victim could have access to the balcony, and succumb to a fall from a great height, albeit her claim that the balcony door was locked. Finding by the SCJ was fortified by his decision that the accused did not provide any evidence to support her allegation that SP5 had a motive to fabricate evidence against her. Furthermore, the alleged fabrication of evidence by SP5 is never an ingredient to be proven by the prosecution for an offence under section 31 (1) (a) of Act 611, and the accused is never absolved of her responsibility to take care of her child, with no excuse. Blaming it on SP5, does not bode well as a defence, as she is the mother to the child, whereas SP5 was in fact a total stranger to her child. In terms of the law, finding by the SCJ is congruent with the meaning of the word “neglect” in section 31 (1) (a) of Act 611 which should be given its ordinary meaning, including failure to take reasonable care of a child. Element of likelihood of physical or emotional injury is satisfied if the neglect creates a risk of such injury, like in the present case, for reasons alluded to above. The degree of neglect must be such that it exposes the child to a significant risk of harm, also on all fours with the present case. Flowing from the above findings of fact by the SCJ and the position of law applicable to the proved facts and circumstance of the case, he was obviously correct in arriving at the ultimate decision that the prosecution has proven a case against the accused beyond reasonable doubt, that she had neglected her own child who had succumbed to a fall from a great height and died. Sentence [22] On the issue of meting out an appropriate sentence according to law, Act 611 had neatly stipulated the various sentence to be meted out on the accused on proof of guilt beyond reasonable doubt after having considered her plea in mitigation and submission on aggravating factors advanced by the DPP. In that respect, the SCJ had ably and painstakingly considered with much appropriateness the following valuable factors: • Gravity of the offence; • The loss of a young life; • The need to deter others who are like minded to commit similar offences; • Personal circumstances of the accused and her remorse. The SCJ had also acknowledged the need for rehabilitation and deterrence in sentencing, hence the imposition of 5 years imprisonment, which is proportionate to the offence. Further she was ordered to execute a bond of good behaviour bond for a period of three (3) years with a surety and security of RM3000 and finally a thirty-six (36) hours term of community service to be undertaken by her upon completion of incarceration. The aim of meting out such gamut of sentences, foremost is to ensure the aim of specific and general deterrence in sentencing is fulfilled and also rehabilitation of the accused so that she could reintegrate back into society, swiftly. The sentence meted out, especially the period of imprisonment would also serve as general deterrence to parents and caregivers of their responsibility to protect children. Is the conviction safe? [23] The true test in this appeal before this court, to justify appellate intervention is, if the conviction entered on the accused safe. If it is so, this court in its exercise of appellate jurisdiction, would not interfere with the findings of fact, application of the law and the ultimate decision of guilt, conviction and sentence. A safe conviction would entail the following: • accurate reflection of the factual truth of what had transpired in the case; • the evidence presented by the prosecution is no exaggeration but a genuine proof of the accused’s guilt; • There has been no doubt raised on the accuracy of the forensic evidence, reliability of the testimony of all PWs; • The integrity of the legal process involving the accused is also intact, wherein her rights to a fair trial was protected throughout the investigation, trial and sentencing. Moreover, the accused had legal representation during the trial (and also at hearing of the appeal) throughout, especially so when all PWs were cross-examined. [24] Therefore, the conviction was obtained via adherence to the law and procedure. The other contributing factors to the safe conviction are: • Strong and credible evidence; • Reliable circumstantial evidence; • Sufficient to prove guilt of the accused beyond reasonable doubt. Is the sentence fair, just and appropriate? [25] As for the sentence meted out, it anchors on a sentence according to law pursuant to section 173 (m) (ii) of the CPC, wherein it is in accord with the penal provision and established judicial principles. (See the oft quoted authority of PP v Jafa bin Daud (1981) 1 MLJ 315). The composite sentences meted out are appropriate, fair, just and proportionate to the commission of the offence by the accused. (See by analogy the persuasive decision by the Supreme Court of Canada in R v Ipelee (2012) SCC 13). The accused as the mother of the child victim, is expected under the law not to neglect her at all times, but to take care of her like the proverbial menatang minyak yang penuh. Conclusion [26] It is settled law on criminal appeals, that the test for sustainability of a conviction recorded against the accused by the trial court, is ultimately for the appeal court to determine and decide if the conviction recorded is safe. To reiterate, the finding of guilty and conviction of the accused is safe, as the findings of fact and the law applied to the facts and circumstances of the case is correct and parallel to the evidence adduced in the case. In that respect, the charge against the accused is pivotal and all evidence adduced corresponds with it. [27] Easing back to facts of the case, in a nutshell, the following are apparent: • The case involves a child of the accused who had fallen from a height from the unit she lived in. • It happened past midnight. • The mother of the child, who is the accused was away from home by leaving the child without any adult care. • Her explanation was that she had to go out to acquire some medication for her child who was unwell. • When she had returned she found that the child had walked out of the room in which she was sleeping to the balcony which was widely opened and she fell off from the 18th floor, hence the death falling from a greater height. • The fact remains that the accused as the mother very well chose to leave the child alone with two other children without any adult care but now blamed SP5 for keeping the balcony door open. • She as the mother of the child has a duty and responsibility to ensure safety of the child who was of tender years and helpless, needing care and attention at all times. • This is the rationale of the law under which the accused was charged for an offence under section 31 (1) (a) of the Child Act 2001. • But by leaving the child alone, hoping that all will be safe and sound without her constant care and supervision is a pure neglect on her part. • The law expects her to take care of her child and watch her like a hawk at all times, without any single moment of neglect. [28] Arguments were raised on the preferred charge, stating it was flawed as it does not correspond with the provision of the law. Viewing the charge and juxtaposing it with the legal provision, it is manifestly obvious that the actus reus specified in the charge, “mengabaikan dengan secara cuai” is consistent with section 31 (1)

of the Child Act 2001 which provides for the actus reus of the offence – “mengabaikan atau bertindak secara cuai”. Hence “mengabaikan dengan secara cuai” would expressly envelope itself with the actus reus “mengabaikan”. That renders the charge not being flawed but correct and valid in law as both the actus reus and mens rea of the offence under section 31 (1) (a) is specified clearly. Moreover, as the accused was legally represented during the trial, and the accused was able to advance her defence to the preferred charge, she was not prejudiced. [29] From the evidence adduced; the findings made by the trial judge; the law applied to the facts and circumstances of the case; it is abundantly clear that the SCJ has not misdirected himself necessitating an appellate intervention. Furthermore, the findings made are on facts, which are consistent with the evidence adduced, thus it is not incongruent justifying appellate intervention. The net result is that the offence has been proved beyond reasonable doubt against the accused and the trial judge did not leave room for any error of fact or law, as his judgment is sound, speaking and very well written. [30] On that score, I find that there has not been any error, thus the conviction entered against the accused is safe. On the sentence meted out, it is also according to law, fair, just and appropriate in terms of the facts, circumstances and criminality of the accused. Thus, the sentence of 5 years imprisonment to take effect from the date of conviction; a good behavior bond imposed on the accused for a period of 3 years with a deposit amount of RM3000 and also an order for community service for an aggregate of 36 hours to be completed within a period of 6 months upon expiration of her prison term, is in accordance with law and established judicial principles. In its entirety, the accused has to pay for her negligent misconduct as a life is lost, her own child, because of her criminal behavior pursuant to the Child Act 2001. [31] Therefore, the appeal by the accused is dismissed and she is ordered to serve her sentence accordingly. I have granted a stay of execution of the sentence for the accused to have a final redress at the Court of Appeal, being the ultimate tier of appeal against the finding of guilty, conviction and sentence by the SCJ. Appeal dismissed, conviction affirmed. Dated 17 July 2025 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur Parties DC Sunderasan Krishnan of Messrs. Lakshmi Gandhi Nathan & Partners, counsel for the appellant/accused. DPP Aqilah Ishak for and on behalf of the Public Prosecutor, appearing for the respondent/prosecution.