Pendakwa Raya v Maidin Bin Ibnuhashim (S-05(SH)-475-10/2022)

The respondent (accused) was initially charged for the offence of murder under s. 302 of the Penal Code. The learned High Court Judge, after having found a prima facie case has been made out at the close of the prosecution case, called upon the respondent to enter his defence. The learned High Court Judge, after having heard the defence case, reduced the charge of murder (s. 302) to culpable homicide not amounting to murder under s. 304(a) of the Penal Code and convicted the respondent on the reduced charge. The respondent was sentenced to 18 years’ imprisonment effective from the date of arrest which was on 16.8.2018.

Dissatisfied with the decision of the learned High Court Judge in reducing the charge from s. 302 to s. 304(a) of the Penal Code and the conviction of the reduced charge, the Public Prosecutor (hereafter “PP”) filed this appeal.

On 14.5.2024, this Court, after having heard the oral submissions and after having read the written submissions of the respective counsels, in a unanimous decision, decided to affirm the learned High Court Judge’s decision. The reasons for the decision are set down below.

The charge (amended charged) dated 24.2.2022 (Exhibit P22) read as follows: S/N xuzfo3Ex80G8PaEtiG2Jzw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 3 of 15 “That you, Maidin Bin Ibnuhashim is charged at the instance of Public Prosecutor, Malaysia and the charge against you is as follows: “That you, between the 10th day of August 2018 to 13th day of August 2018, located at the rented room, House no U1777, Kg Gersik Lama, in the Federal territory of Labuan, did commit murder by causing death to Nurul Shafika binti Maidin (Female / 9 Months old) and that you have thereby committed an offence punishable under Section 302 of the Penal Code (Act 574) of the Laws of Malaysia.”

The learned High Court Judge’s grounds of judgment at paragraphs [4] to [12] have set down the events leading to the death of the victim. One crucial evidence is that Nurul Mazliana (PW9), the respondent’s daughter, gave evidence that she personally witnessed that the respondent had caused the bodily injury to the victim on several occasions. PW9 was the only eye-witness in the case who saw the respondent causing bodily injury to the victim, and she was 9 years of age at that material time. She was 12 years of age when she gave evidence under oath.

PW9 told the court that she saw the following incidents: S/N xuzfo3Ex80G8PaEtiG2Jzw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 4 of 15

The respondent placed (or “dipped” as recorded in the Notes of Proceedings) the victim’s fingers and toes into hot water filled in a rice cooker;

(ii) The respondent slapped the victim’s face several times when the victim cried;

(iii) The respondent slammed the victim onto a mattress, and the victim landed on the mattress on her head;

(iv) The respondent placed the victim on a baby swing and swung the swing hitting a doorless wardrobe’s frame (or “center pole” as recorded in the Notes of Proceedings) (see picture Exhibit P16(8) – Record Appeal Volume 3 (Encl. 8), p. 18/138 (PDF page)) several times;

The respondent held the victim in front of a water tap and allowed running water to run through the victim’s head and face. [7] PW9 told the court that the injury of the fingers and toes came first, then followed with the swing incident, and lastly the water tap incident. Postmortem Report [8] According to the Postmortem Report (Exhibit 43 – Record Appeal Volume 3 (Encl. 8), pp. 86-91/138 (PDF page)) prepared by Dr. Murali Narayanasamy (PW15), a pathologist / forensic medicine specialist, he found five distinct marks and injuries on the victim, and they are as follows: i. Discoid bruising over the left check measuring 1.5 x 1.5 cm; ii. Right periorbital haematoma measuring 2 x 1 cm; iii. Discoid bruising over the left angle of mouth measuring 1.2 x 1 cm; S/N xuzfo3Ex80G8PaEtiG2Jzw Page 5 of 15 iv. Discoid bruising over the right side of forehead measuring 1.5 x 1 cm; v. There are superficial deep dermal burns over the tip of right thumb, right 2nd, 3rd and 4th fingers, left 2nd, 3rd and a small area of involvement of the 4th finger, left big toe and right 1st, 2nd and 3rd toes. Lund and Browder burns charting estimate the total area of burns to 2%. [9] PW15 identified the above marks and injuries by cross-referring the photographs shown in Exhibit P11(1-9) (see Record Appeal Volume 3 (Encl. 8), pp. 44-48/138 (PDF page)) [10] With regard to internal examination, PW15 in his Postmortem Report stated as follows: “On reflection of the scalp, subgaleal haematomas were seen over the right fronto-temporal regions measuring 2 x 1.5 cm. On opening the skull cap, there were no tears of the dura mater. The external periosteum and dura mater were stripped showing no fractures of the calvarium or base of skull. There was no thrombus in the superior sagittal sinus and the pituitary gland was unremarkable. There were no extradural haemorrhages. There was a large right temporo-parieto-occipital and left parieto-occipital subdural haemorrhages measuring 50cc. Foci of subarachnoid haemorrhages were seen over the right temporal, right parietal and left parietal lobes. The brain was soft, grossly oedematous, congested and weighed 763g.” S/N xuzfo3Ex80G8PaEtiG2Jzw Page 6 of 15 [11] PW15 identified the internal injuries stated in the Postmortem Report by cross-referring the photographs shown in Exhibit P5(11,13,14,15,16,) (see Record Appeal Volume 3 (Encl. 8), pp. 38,39,40,41/138 (PDF page)). [12] PW15 concluded that the cause of death as follows: “Severe head injury in a child with soft tissue injuries to the face, mixed superficial and deep dermal burns over the fingers and toes and underlying bronchopneumonia.” [13] PW15 testified that the victim suffered severe head injuries “as evidence by subgalelal haematomas (bruising of the scalp) over the right fronto-temporal regions, extensive subdural haemorrhages, subarachnoid haemorrhages and gross cerebral edema”, and “these injuries are consistent with abusive head trauma and could be caused by direct blunt trauma, shaking, dropping, throwing or a combination of the above.” [14] PW15 also testified that “the immediate or direct cause of death are the severe head injuries sustained by the deceased.” PW15 opined that the head injuries could be caused by “pushing and throwing to hard surface”. However, PW15 did not confirm that the head injuries were caused by swinging the victim in a baby swing to a cupboard. PW15 opined that it “would depend on multiple factors such as height, speed, build of the swing, distance to the cupboard and make of cupboard.” [15] PW15 opined that the head injuries could be caused by throwing the victim on a mattress, and that the head of the victim landed on the mattress. PW15 further opined that slapping alone would not cause the S/N xuzfo3Ex80G8PaEtiG2Jzw Page 7 of 15 injuries. Lastly, PW15 opined that the injuries on the fingers and toes were caused by boiling hot water. The Investigation [16] The Investigating Officer ASP Dorarin Binti Guanoi (PW14) testified that she investigated the case under s. 302 of the Penal Code. She further testified that her finding was “that the accused had injured the victim by dipping her fingers of both hands and the toes of left foot into the rice cooker which contained hot water” (see PW14’s testimony given on 4.3.2022). [17] PW14 also testified that in her investigation she “found that the accused had placed the victim into the baby swing and swung the baby swing until it hit the wooden cupboard a few times.” [18] PW14 also told the court that based on her investigation she found that “the accused opened the water faucet (kepala paip air) at the toilet below the house of the crime scene and the tap water hit the victim’s face.” PW14 stated that “the accused’s conduct seemed like he was trying to drown the victim.” PW14 further told the court that the incidents of the baby swing and water faucet happened on the same day which was on 10.8.2018, and the incident of the baby swing happened on the morning and the water faucet happened on the evening. [19] PW14 further told the court that in her investigation she also found that the accused slammed the victim onto the mattress and slapped the victim’s face several times, and these incidents happened between S/N xuzfo3Ex80G8PaEtiG2Jzw

10.8.2018 and 13.8.2018 before the victim passed away. PW14 told the court that all those incidents she had mentioned were witnessed by PW9. [20] PW14 could not find the baby swing during her investigation. She said the respondent had taken the baby swing away. PW14 also said, based on her investigation, that the victim’s head fell first onto the mattress when the accused slammed the victim on the mattress. The Finding of the High Court Judge [21] The learned High Court Judge was satisfied that the injuries sustained by the victim were the cause of the victim’s death, and that the injuries were caused or inflicted by the respondent, this finding is based substantially on the testimony of PW9, and corroborated by the testimony of Siti Hanina (PW6), a neighbor (see paragraphs 14 to 31 of the learned High Court’s grounds of judgment). [22] The learned High Court Judge also examined and evaluated the evidence given by PW6, PW9, PW14 and PW15, and found that their testimonies were credible and capable of belief. The learned High Court Judge had cautioned and warned himself of the danger of convicting the respondent solely on the testimony of a child. After having considered all these, the learned High Court Judge was satisfied that the respondent was the one who had caused the death of the victim by doing those acts with the intention of causing such bodily injury as was likely to cause death, therefore, the respondent had committed the offence of culpable homicide. S/N xuzfo3Ex80G8PaEtiG2Jzw Page 9 of 15 [23] The learned High Court went on to find, based on his own assumption, that the fact that the injury inflicted particularly on the victim’s head, which is a vital part of the human body, was itself sufficient in the ordinary course of nature to cause death. This, therefore, satisfied the element of s. 300(c) of the Penal Code. The commission of culpable homicide coupled with the element in s. 300(c) of the Penal Code would suffice to establish an offence of murder and be punishable under s. of the Penal Code. The learned High Court Judge, after having carried out a maximum evaluation at the end of the prosecution’s case, found a prima facie case had been made out and the respondent was then called upon to enter defence to the charge of murder. [24] However, the learned High Court Judge, after having heard the respondent’s defence, decided to reduce the charge of murder to culpable homicide not amounting to murder under s. 304(a) of the Penal Code. [25] Two witnesses gave evidence in the defence case, the respondent (DW1) and one Mohammad Adzrul Ahmed Rosman (DW2). The learned High Court Judge examined the defence, i.e., the denial that the injuries were intentionally caused by the respondent, by cross-reference to the evidence of the prosecution’s case, especially the testimony of the PW9 who personally witnessed the incidents. The learned High Court Judge accepted the evidence of PW9 as credible, and found the respondent’s narrative was a bare denial of the offence charged. [26] The learned High Court Judge evaluated the respondent’s version that there was no baby swing in the rented room, and found that this defence was not raised or put to the prosecution’s witnesses, therefore, S/N xuzfo3Ex80G8PaEtiG2Jzw Page 10 of 15 the learned High Court Judge concluded that the defence was suspicious and inherently improbable. [27] However, the learned High Court Judge in the following paragraphs stated as follows: “[74] In the present case, before 13.8.2018, it is not disputed that the accused, DW1 brought the deceased to Balai Polis Labuan to be breastfed by her mother who was arrested and detained for an offence under s. 15(1)(a) Dangerous Drugs Act 1952. [75] As the deceased was left under the care of the accused, he (accused) would have no difficulty to drown the deceased during her bath or suffocate her with a pillow if he really intended to kill or murder the deceased. Further, no deadly or offensive weapon such as a knife or stick was used by the accused to inflict the injuries on the deceased. [76] From the facts, circumstances and manner in which the injuries were inflicted by the accused on the deceased, i.e. releasing flowing water from a tap on the deceased’s face during bath, slapping the deceased’s face whenever she cried, dipping her fingers and toes on hot water in a rice cooker and causing head injuries by pushing the baby swing towards the center pole of the cupboard and causing the deceased’s head to hit the center pole shows that the accused intended to cause injuries to the deceased. S/N xuzfo3Ex80G8PaEtiG2Jzw Page 11 of 15 [77] After the accused returned from work and found the deceased to be unconscious, he sought help from PW6 and PW6’s husband, DW2 and the accused together with DW6 and D2 brought the deceased to the hospital. Looking at the actions of the accused, DW1 leading to the deceased’s death and after considering the evidence of the prosecution and the accused including the s. 112 statement of the accused (Exhibit D 8 (1-6)), this Court finds that there is a lack of cogent evidence to show that DW1 had the intention to murder the deceased and thereby casting a reasonable doubt on the mens rea element of the charge under s. 302 of the Penal Code. [78] From the totality of the evidence adduced by the Prosecution and the Defence and applying the principles enunciated by the appellate courts in the above authorities to this case, this Court finds that the Prosecution had failed to prove the charge of murder under s. 302 of the Penal Code. [79] However, there is sufficient evidence to convict the accused for an offence of culpable homicide not amounting to murder as defined in the 2nd limb of s. 299 of the Penal code which is punishable under s. 304(a) of the Penal Code. [80] The body of evidence before the Court shows that there was intention to cause bodily injury to the deceased as is likely to cause death and he did in fact cause a death. Hence, the accused is convicted for a lesser offence under s. 304(a) of the Penal Code. The accused is called upon to make his plea in mitigation.” S/N xuzfo3Ex80G8PaEtiG2Jzw Page 12 of 15 [28] From the above paragraphs, it could be reasoned that the learned High Court Judge was convinced that the respondent had the intention of causing bodily injury to the victim and that the injury was likely the cause of death, thereby the offence of culpable homicide was made out under 2nd limb of s. 299 of the Penal Code. [29] However, the learned High Court Judge was equally convinced that there was absence of “intention” on the respondent’s part to cause the death of the victim. The respondent had plenty of opportunities to kill the victim if the respondent actually wanted to do so, he could have done so, but the respondent did not do so. Hence, there was lack of “intention of causing death”. Notwithstanding there was clear absent of “intention” to cause death, murder could still be made out if there was intention of causing the bodily injury, and that bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death (i.e., s. 300(c) of the Penal Code). [30] The cause of death is reported as “severe head injury in a child with soft tissue injuries to the face, mixed superficial and deep dermal burns over the fingers and toes and underlying bronchopneumonia”, all these could establish the reasons of the death, but that could not translate in evidence that “in the ordinary course of nature” those injuries could have caused death. [31] It was in evidence that the head injury was the main direct cause of death. With regard to the soft tissue injuries to the face, mixed superficial and deep dermal burns over the fingers and toes and underlying bronchopneumonia all these injuries could not in the ordinary course of S/N xuzfo3Ex80G8PaEtiG2Jzw Page 13 of 15 nature cause death. The prosecution case did not establish that those injuries could in the ordinary course of nature cause death. [32] The head injury was not a single blow of injury that caused the death, but rather multiple injuries which each by itself could not cause death. Based on the Postmortem Report and the evidence, there is nothing that could suggest that anyone of the causes of death could in the ordinary course of nature have caused death. The learned High Court Judge’s finding at the end of the prosecution case was that he had assumed that the injury to the head of the victim would in the ordinary course of nature have caused death. This assumption may not necessarily be correct without proper medical support or expert opinion. [33] Although the learned High Court Judge had called upon the respondent to enter defence on the charge of murder (under s. 300(c) of the Penal Code), the learned High Court Judge could have at that juncture, amended the charge and ordered the respondent to enter defence on a charge of s. 304(a) of the Penal Code. Notwithstanding that, the learned High Court Judge was entitled in law, after hearing the defence case, to amend or substitute the charge from murder to culpable homicide not amounting to murder if the fault element of the offence of murder could not be made out after the defence was called, which in this case, s. 300(c) of the Penal Code was not made out. [34] After having evaluated the evidence at the close of the defence case, the learned High Court Judge found insufficient evidence to establish the offence of murder under s. 300(c) of the Penal Code, therefore, s. 302 could not be made out. Nevertheless, the 2nd limb of s. 299 has been proven beyond reasonable doubt, and thereby the offence S/N xuzfo3Ex80G8PaEtiG2Jzw Page 14 of 15 of culpable homicide has been established, i.e. intention of causing such bodily injury as is likely to cause death. The learned High Court Judge was correct then to convict and sentence the respondent for the offence of culpable homicide not amounting to murder under s. 304(a) of the Penal Code. [35] The learned High Court Judge, after having evaluated the mitigating factors, decided to sentence the respondent to 18 years’ imprisonment effective from the date of arrest. We find no reasons to disturb the conviction and sentence of the learned High Court Judge. Conclusion [36] Based on the above analysis, this Court, in a unanimous decision, finds no appealable error had been committed by the learned High Court Judge that could warrant this Court to disturb his findings of facts and law as the trial court. Hence, this Court affirms the decision of the High Court on the conviction and sentence against the respondent, and consequently, the appeal against conviction and sentence is hereby dismissed. -sgd- (CHOO KAH SING) Judge Court of Appeal Malaysia Date: 22.7.2024 S/N xuzfo3Ex80G8PaEtiG2Jzw Page 15 of 15 Counsel for the Public Prosecutor: Zulkpli Bin Abdullah DPP from the Attorney’s Chambers Counsel for the respondent: Tan Hock Tho Tetuan Kian Ming S/N xuzfo3Ex80G8PaEtiG2Jzw