Pendakwa Raya v Aldwin Rojas Saz (S-05(SH)-598-12/2017)

Content

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE CRIMINAL JURISDICTION) CRIMINAL APPEAL NO: S-05(SH)-598-12/2017 BETWEEN PUBLIC PROSECUTOR … APPELLANT AND ALDWIN ROJAS SAZ … RESPONDENT [In the matter of the High Court in Sabah and Sarawak at Kota Kinabalu Criminal Trial No: BKI-45B-2/11-2016 Between Public Prosecutor v Aldwin Rojas Saz] CORAM ABDUL RAHMAN SEBLI, JCA MARY LIM THIAM SUAN, JCA HASNAH DATO’ MOHAMMED HASHIM, JCA JUDGMENT OF THE COURT [1] This appeal by the Public Prosecutor was against the decision of the High Court amending the original charge of murder under section 302 of the Penal Code to a less serious charge of culpable homicide not amounting to murder under section 304(b) of the same Code and convicting the appellant of the lesser offence. [2] The appeal concerns the procedure to be followed by the trial court where the defence of insanity by reason of intoxication under section 85(2)(b) of the Penal Code has been established by the prosecution’s own evidence at the close of its case. 2 [3] After hearing arguments by both sides, we reserved judgment to a date to be fixed. We have now reached a unanimous decision and this is our judgment. [4] In the High Court at Kota Kinabalu, the appellant was charged with two offences as specified in the following charges: First charge “That you, on the 18th day of February 2016, at about 2.00 a.m., in an unnumbered house, behind Kilang Papan Wangsa, in the district of Nabawan, in the State of Sabah, did commit murder by causing the death of one ROJAS JONVIN (Male/8 years old, Visaya PI) and that you have thereby committed an offence punishable under section 302 of the Penal Code (Act 574) of the Laws of Malaysia.” Second charge “That you on the 18th day of February 2016, at about 2.00 am, in an unnumbered house, behind Kilang Papan Wangsa, in the district of Nabawan, in the State of Sabah, did voluntarily cause hurt to EDWENA DOCA DAUD (Female/49, PASSPORT NO: VV0546742) by using dangerous weapon to wit a knife and that you have thereby committed an offence punishable under Section 324 of Penal Code (Act 574) of the Laws of Malaysia.” [5] The first charge was for murdering his 8 year old son whilst the second charge was for injuring his wife with a dangerous weapon. The first charge carries the death penalty on conviction whilst the second charge carries the penalty of imprisonment for a term which may extend to three years, or with fine, or with whipping or with any two of such punishments. [6] At the close of the prosecution’s case, the learned trial judge ruled that the prosecution failed to establish a prima facie case of murder as 3 specified in the first charge but only succeeded in establishing a prima facie case of the lesser offence of culpable homicide not amounting to murder under section 304(b) of the Penal Code. [7] Accordingly, the learned judge amended the murder charge under section 302 of the Penal Code to a charge of culpable homicide not amounting to murder under section 304(b) of the Penal Code. The charge as amended by the learned trial judge reads as follows: “Bahawa kamu, pada 18hb February 2016 jam lebih kurang 2.00 pagi di dalam rumah tidak bernombor, di belakang Kilang Papan Wangsa, di dalam daerah Nabawan, di dalam Negeri Sabah telah menyebabkan kematian ke atas penama Rojas Jonvin (lelaki/8 tahun, Visaya PI) dengan mengetahui bahawa perbuatan kamu mungkin menyebabkan kematiannya dan dengan itu kamu telah melakukan kesalahan mematikan orang dengan salah yang tidak terjumlah kepada kesalahan membunuh yang boleh dihukum di bawah Seksyen 304(b) Kanun Kesiksaan.” [8] The offence on conviction carries an imprisonment term of up to 10 years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. [9] The respondent pleaded guilty to the amended charge and was sentenced to 8 years imprisonment backdated to his date of arrest on 18.2.2016. [10] The reason why the learned trial judge amended the murder charge under section 302 of the Penal Code to the charge of culpable homicide not amounting to murder under section 304(b) of the same Code was because she found the respondent to be insane by reason of intoxication 4 from Methamphetamine use at the time he committed the act. This is what Her Ladyship said in her grounds of judgment: “[25] Therefore, the totality of evidence by PW3, PW4, PW6, PW7 and PW8 revealed that the accused did not know what he was doing and he was insane by reason of intoxication from methamphetamine use at the time when he committed the murder and his actions against his own child was unintentional, without knowledge and with no motive.” [11] As for the second charge of causing hurt with a dangerous weapon under section 324 of the Penal Code, the learned trial judge found that the prosecution had succeeded in establishing a prima facie case against the respondent and accordingly called for his defence to the charge. [12] The respondent pleaded guilty to the second charge and was sentenced to 2 years imprisonment with effect from the date of his arrest and 3 strokes of the rotan. The imprisonment sentence was ordered to run concurrently with the 8 year imprisonment sentence for his conviction under section 304(b) of the Penal Code. [13] The background facts are as follows. The respondent, a 40 year old lorry driver for Kilang Papan Wangsa, Nabawan was living with his wife Edwena Doca Daud (“Edwena”) and his son from a previous marriage by the name of Rojas Jonvin (“the deceased”), who was only 8 years old at the time of his tragic death. The respondent and Edwena had been married for 6 years at the material time. [14] Nothing eventful happened on 17.2.2016. During lunch hour, the respondent and the deceased cleaned the “Topikung” located at the backyard of their house and they also planted vegetables. After they were 5 done with their chores, the respondent, Edwena and the deceased went to a nearby river to wash their clothes and took a dip in the river. [15] When they returned home that evening, they took dinner together. Shortly after 8.00 p.m., the respondent went to their neighbour’s house to watch television. The deceased and Edwena stayed in their own house and played hand phone game called “Candy Crush”. Later in the night the respondent returned home and joined the deceased and Edwena playing “Candy Crush”. [16] What happened in the wee hours of the morning that followed turned their world upside down, with the deceased ending up being brutally murdered by his own father. This was Edwena’s account of what happened: “We were using our handphones. My son was also using his handphone. My husband was next to me teaching me how to play Candy Crush with my handphone. After that, he said let us go and sleep. I shared the mosquito net with my husband and my son has his own small mosquito net. I slept with my husband and my son has already gone to sleep. Suddenly my husband woke and stood up and mumbling words and his voice sounds different. I saw he was holding a knife, he was walking to and fro and went straight to my son and my son was screaming “mummy mummy”. I was so scared I closed my face with both hands and I don’t know what happened. After that, I saw he was talking to the wall angrily and the moment I saw the door was ajar and I took the opportunity to run away and I escape to the bush, I fell asleep and the next day I realised I received a stab wound on my stomach.” [17] Apparently the respondent had, in a fit of insanity due to drug use, fatally attacked his son by slashing his neck and stabbing him twice in the chest with a knife. This must have been the moment when Edwena heard 6 the deceased screaming “mummy mummy”. But there was nothing she could do as she was frozen with fear by the respondent’s terrifying act. [18] When the police arrived at the scene at about 5.00 o’clock in the morning, the deceased was already dead. The post mortem that was conducted on his body by forensic pathologist Dr. Jessie Hiu (PW5) determined the cause of his death to be due to incised wound to the neck and two stab wounds to the chest. In her post mortem report (Exhibit P39), PW5 confirmed that the injuries were sufficient in the ordinary course of nature to cause death. [19] These injuries resulted in severe bleeding which led to hypovolemic shock and death. Photo No.12 of exhibit P42 shows the severity of the neck injury sustained by the deceased. It is obvious that his throat had been slit by the respondent. PW5 described the injury as follows: “3. An incised wound measuring 14 x 1.5 cm, oriented obliquely from the inferior surface of the chin at the midline to the lower right side of the neck, about 107 cm above heel. The underlying right sternocleidomastoid muscle and the lateral wall of the right jugular vein were cut.” [20] There were five other injuries inflicted on the deceased but they were not fatal. On the evidence, there can be no doubt that it was the respondent who caused the fatal injuries, even if we were to disregard his guilty plea to the amended charge under section 304(b) of the Penal Code. [21] The contention by the prosecution was that the learned trial judge erred in finding that the prosecution failed to establish a prima facie case of murder against the respondent as charged. It was submitted that on the 7 proved facts, all essential ingredients of the charge had been established, namely:

Subparagraph

(ii) caused them with the intention of causing such bodily injuries as the respondent knew to be likely to cause death; or

Subparagraph

(iii) caused them with the intention of causing bodily injuries and such bodily injuries were sufficient in the ordinary course of nature to cause death. [22] It was submitted that the learned trial judge should have called upon the respondent to enter his defence to the murder charge as required by section 180(3) of the Criminal Procedure Code (“the CPC”) instead of amending the charge to a lesser offence of culpable homicide not amounting to murder under section 304(b) of the Penal Code and to convict him of that offence. Section 180(3) of the CPC provides as follows: “180. (3) If the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter his defence.” [23] As to what constitutes a prima facie case in criminal proceedings, the phrase has been given a statutory meaning by subsection (4) of section 180 of the CPC, in the following terms: 8 “(4) For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.” [24] Thus, a prima facie case is established where the evidence is credible enough to warrant the accused’s conviction if he fails to rebut or explain the evidence already established against him by the prosecution at the close of its case. If the accused chooses to remain silent or offers no evidence when called upon to state his defence, the court must proceed to convict him of the offence charged: PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 F.C. [25] Learned counsel for the respondent however argued that not only had the prosecution failed to establish a prima facie case of murder under section 302 of the Penal Code against the respondent, but had also failed to establish a prima facie case even in respect of the amended charge of culpable homicide not amounting to murder under section 304(b) as well as the charge of causing hurt to Edwena by using a dangerous weapon under section 324 of the Penal Code. [26] This, according to counsel, was because the learned trial judge had made a finding of fact that the respondent did not know what he was doing at the time he killed his son and injuring his wife. In the absence of such knowledge, the respondent could not be guilty of any of the offences charged, i.e. murder under section 302, culpable homicide not amounting to murder under section 304(b) and causing hurt with dangerous weapon under section 324 of the Penal Code. 9 [27] For this reason, it was submitted that the learned trial judge was wrong to proffer the amended charge under section 304(b) of the Penal Code against the respondent and to call upon the respondent to enter his defence to the second charge under section 324 of the same Code. [28] It was contended that the respondent should have been acquitted and discharged of both charges without his defence being called. For reasons that we shall give in a moment, we agree with learned counsel but only up to a point. [29] It was contended that the learned judge’s failure to direct her mind to the issue of knowledge in relation to the amended charge under section 304(b) of the Penal Code and to the charge under section 324 of the Penal Code constitutes a failure of justice warranting intervention by this court. [30] We were invited to exercise our powers under section 60(1) of the Courts of Judicature Act 1964 and/or Rule 105 of the Rules of the Court of Appeal 1994 to set aside the respondent’s convictions under section 304(b) and section 324 of the Penal Code and to acquit him of the charges. In other words, the respondent should be released forthwith. [31] Learned counsel found support for his argument in the medical evidence that was adduced during the trial. The psychiatric report (Exhibit P48) on the respondent which was produced by the prosecution (and not by the defence) under the heading “SUMMARY, OPINION AND RECOMMENDATION” states as follows: “9.1 Mr Aldwin Rojas is a 40 year old Filipino man who was admitted to Hospital Mesra Bukit Padang on 16 February 2017 under Section 342(1) of the Criminal 10 Procedure Code for a psychiatric evaluation and a report. He was charged under Section 302 of the Penal Code for allegedly murdering his 8 year old son named Janvin Rojas at Batu 47, Melampoi Nabawan on 17 February 2016.

Subsection

(2) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

Subsection

(3) For the purpose of this and the preceding section “intoxication” shall be deemed to include a state produced by narcotics or drugs.” [45] By the terms of the provision, section 86(1) of the Penal Code must be read in conjunction with section 84 of the same Code and sections 347 and 348 of the CPC. Section 84 provides: 15 “84. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” [46] Sections 347 and 348 of the CPC on the other hand provide as follows: Section 347 “347. Whenever any person is acquitted upon the ground that at the time at which he is alleged to have committed an offence he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged as constituting the offence or that it was wrong or contrary to law, the finding shall state specifically whether he committed the act or not.” Section 348 “348. (1) Whenever the finding states that the accused person committed the act alleged, the Court before which the trial has been held shall, if that act would, but for incapacity found, have constituted an offence, order that person to be kept in safe custody in such place and manner as the Court thinks fit and shall report the case for the orders of the Ruler of the State in which the trial is held: Provided that if the Court concerned is a Magistrate’s Court, the Magistrate may in his discretion, if he considers the offence charged is not of a serious nature and that the person can safely be released without danger to his doing injury to himself or any other person, caution and discharge him.

Subsection

(2) The Ruler may order that person to be confined in a psychiatric hospital during the pleasure of the Ruler of the State.” [47] In the present case, there was no dispute that the appellant did the acts which he was charged with, i.e. killing his son and injuring his wife with a dangerous weapon as set out in the two charges. 16 [48] Having found that the respondent was insane by reason of intoxication from Methamphetamine use when he committed the acts, what the learned trial judge should have done was to follow the procedure prescribed by section 348(1) of the CPC, which was to acquit the respondent of the two charges and to order that he be kept in safe custody in such place and manner as she thought fit and thereafter to report the case for the orders of the Yang di-Pertua Negeri of Sabah. [49] There was no necessity for the learned judge to call upon the respondent to enter his defence to the two charges as urged upon by the learned DPP in his submissions at the close of the prosecution case, for the simple reason that the defence of insanity by reason of intoxication under section 85(2)(b) of the Penal Code had already been established, and in fact conceded by the prosecution. [50] It is true that under section 105 of the Evidence Act 1950 (“the Evidence Act”), the burden was on the appellant to prove unsoundness of mind; but to call upon him to enter his defence on the murder charge merely to discharge his burden of proof would, in the circumstances, be a total waste of time, not to mention the futility of the exercise as both the prosecution and the defence did not dispute that the respondent was insane by reason of intoxication from Methamphetamine use at the time he committed the offences. That burden had already been discharged at the close of the prosecution case by the prosecution’s own evidence. [51] The order for the respondent to enter his defence to the charges would be justified if there was no evidence of his mental condition at the prosecution stage of the case and the prosecution had proceeded on the basis that he was not insane within the meaning of section 85(2)(b) of the 17 Penal Code at the time he committed the offences. In that event, the respondent would of course be given the liberty to call his own expert witness or witnesses to prove his defence of insanity. But that was not the case in the present appeal. [52] Having said that, we must commend the prosecution for doing the right thing, which was to call expert medical evidence to show the mental state of the respondent at the time he committed the offences, instead of insisting that it was for the respondent to do so if and when his defence was called. This spared the respondent from having to discharge his burden of proof under section 105 of the Evidence Act. [53] With regard to the learned judge’s decision to amend the murder charge under section 302 to a charge under section 304(b) of the Penal Code and then proceeding to convict him of the offence on his plea of guilty, we find it to be an error in the face of her finding that although the respondent did commit the act complained of, but by reason of insanity due to intoxication from Methamphetamine use, his act was covered by the defence under section 85(2)(b) read with section 84 of the Penal Code. [54] No conviction should have been entered against the respondent for this offence and, for that matter, the offence under section 324 of the Penal Code notwithstanding the fact that he pleaded guilty to the charges. He should have been acquitted of both the murder charge and the charge under section 324 of the Penal Code as his case falls under section 85(2)(b) of the Penal Code. The convictions are therefore null and void. 18 [55] In the upshot, we allow the prosecution’s appeal in part. We say in part because for the reasons we have given, we disallow the prosecution’s appeal that the respondent be ordered to enter his defence to the original murder charge under section 302 of the Penal Code. [56] We are only allowing the prosecution’s appeal to set aside the order of the High Court amending the charge under section 302 of the Penal Code to the charge under section 304(b) and convicting the respondent of the offence under that section. [57] As for the respondent’s conviction under section 324 of the Penal Code, neither party appealed against the decision, although learned counsel for the respondent raised it in his submissions before us. In our view, since the conviction is a nullity, the conviction and sentence cannot be allowed to stand. We hope the sentence of 3 strokes of the rotan has not been carried out. [58] For the avoidance of doubt, our decision is as follows:

Subsection

(1) The order of the High Court amending the murder charge to a charge under section 304(b) of the Penal Code and convicting the respondent for an offence under that section upon his plea of guilty is set aside.

Subsection

(2) The order of the High Court calling for the respondent to enter his defence to the second charge under section 324 of the Penal Code and convicting him of the offence upon his plea of guilty is set aside. 19 [59] In substitution thereof, we order that the respondent be acquitted of the two offences he was originally charged with, i.e. the offence of murder under section 302 of the Penal Code and the offence of causing hurt by dangerous weapon under section 324 of the same Code. [60] We however affirm the learned trial judge’s finding that the respondent committed the acts complained of, i.e. causing the death of the deceased and causing hurt to Edwena by dangerous weapon. On the evidence before her, that was the only finding that was open to her to make. [61] As a consequential order and pursuant to section 348(1) of the CPC, we make a further order that the respondent be released from prison forthwith and thenceforth be kept in the safe custody of Hospital Mesra Bukit Padang Kota Kinabalu. [62] Finally, we order that the case be reported to the Yang Di-Pertua Negeri of Sabah under section 348 of the CPC. [63] As a post script, perhaps we could propose that in a situation such as this, where official medical evidence in the prosecution’s possession affirmatively confirms that the accused person was insane and the prosecution accepts the fact that the accused was medically and legally insane at the time he committed the offence, the need to proceed with a full trial be dispensed with. [64] What the prosecution could do perhaps is to apply to the trial court to straight away deal with the case under sections 347 and 348 of the CPC after the accused’s plea has been taken. The facts tendered must of 20 course state that the accused was medically and legally insane at the time he committed the act or acts. Alternatively, the CPC could be amended accordingly to deal with the situation. Signed ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 8 July 2019. For the Public Prosecutor: Muhammad Azmi Bin Mashud, Deputy Public Prosecutor, of the Attorney General’s Chambers. For the Respondent: Hamid Ismail of Messrs Hamid & Co.