Syed Fakrulrazi Bin Syed Abdul Rahman v Pendakwa Raya (MA-42S-3-08/2025)

The Accused/Appellant was charged in the Sessions Court with causing grievous hurt to his wife, an offence punishable under Section 325 Penal Code (PC), read together with Section 326A PC.

He was found guilty at the end of the case, convicted and sentenced to 8 years' imprisonment from the date of the decision.

Dissatisfied with the decision, the Accused appealed to the High Court against his conviction and sentence.

After hearing submissions from both parties, this Court dismissed the Accused's appeal on conviction and allowed his appeal on sentence.

His sentence was reduced from 8 years imprisonment to 6 years imprisonment from the date of the decision in the Sessions Court.

The Accused now appeals against the decision of this Court dismissing his appeal on conviction.

The Accused will be referred to as the Appellant in this judgement. Background facts

The brief facts are that the Appellant had caused grievous hurt to his wife.

The grievous hurt was a fracture to her nasal bone as a result of his head butting into his wife's nose.

This happened during a domestic quarrel between the Appellant and his wife.

The Appellant's wife also suffered soft tissue injury over right foot and left shoulder during the domestic violence incident.

In Mohd Johi Said & Anor v. PP [2005] 1 CLJ 389, as to the approach to be adopted in criminal appeals, the Court of Appeal held as follows: "Unlike civil appeals, where the appellant carries the burden of showing that the judge at first instance went wrong, in a criminal case the duty of the court is to consider whether the conviction is right. The correct approach is therefore not whether the decision is wrong but whether the conviction is safe. See, Mohammad Husain v. Emperor AIR [1945] Nag 441; Zahari bin Yeop Baai v. PP [1977] CLJU 162; [1977] 1 LNS 162; [1980] 1 MLJ 160. That question, on the present facts, must receive a negative response. [emphasis added]”

The approach in Mohd Johi (supra) was followed and cited with approval by the Court of Appeal in Jaferi Ipee v PP [2013] 3 CLJ 381, Mohd Za'ba Abdul Talib & Anor v PP [2013] 4CLJ 1081 and Boy Dicor Estanda v PP [2013] 6 CLJ 724 Analysis and finding

Section 325 PC reads: - "Punishment for voluntarily causing grievous hurt

Whoever, except in the case provided by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine."

Whereas section 326A PC reads:- "Punishment for causing hurt by spouse

Whoever, during the subsistence of a valid marriage, causes hurt to his spouse and commits an offence under section 323, 324, 325, 326, 334 or 335 shall be punished with imprisonment for a term of twice as long as the maximum term for which he would have been liable on conviction for that offence under the relevant section."

The elements to be proven by the Prosecution for an offence under section 325 PC read together with section 326A PC are as follows: -

that the accused caused hurt of any of the kinds described in section 320;

(ii) that the accused intended, or knew that he was likely, to cause grievous hurt of any kind so described;

(iii) that the accused did so voluntarily;

(iv) that the accused and the victim were husband and wife at the time of the incident.

At the end of the Prosecution's case, the LSJ ruled that the Prosecution had successfully established a prima facie case against the Appellant and called upon the Appellant to enter his defence.

Upon conclusion of the case, the LSJ found the Appellant guilty and convicted him. The LSJ sentenced the Appellant to eight (8) years' imprisonment from the date of the decision.

Before me, the sole ground relied on by the Appellant to set aside the conviction is that the LSJ had relied on inadmissible evidence in finding him guilty.

This inadmissible evidence is the testimony of the medical officer (PW5) who treated the victim (PW2), the Appellant's wife, at the Accident and Emergency Department of the Government Hospital.

PW5 testified that based on the X-ray, the victim (PW2) sustained a nasal bone fracture, and he had stated this in his medical report (P7).

PW5's medical report was duly admitted into evidence without any objections from the defence in the Court below.

Learned counsel for the Appellant submits that this amounts to hearsay evidence and is inadmissible. According to him, the radiologist who had taken the X-ray of the victim's nasal bone fracture or prepared the radiologist report ought to have been called to give evidence. But no Radiologist was called to give evidence by the Prosecution.

In support of his argument on hearsay evidence, he cites the following authorities: Subramaniam v PP (1956) 1 MLJ 220, Leong Hong Khie v PP (1986) 206 and Sim Tiew Bee v Public Prosecutor (1975) 2 MLJ 200.

Hence, learned counsel for the Appellant submits that the ingredients of the offence that the victim suffered a fracture of the nasal bone as provided under section 320 PC were not proven against the Appellant.

On the other hand, according to the learned DPP, the medical officer (PW5) is qualified to testify based on his qualifications and he was the one who had summoned the victim's X-ray and analysed the X-ray. Therefore, the issue of calling the radiographer or radiologist does not arise.

The learned DPP referred to PW5's evidence in examination in chief as follows:- "S: So, apa yang berlaku berkaitan kes ini Doktor? J: Okay. So, apabila pesakit datang, so dia ada ceritalah. Tak silap saya, benda itu bukan berlaku hari yang sama. Lebih kurang empat ke lima hari sebelum kejadianlah. So, ada berlaku perselisihan faham dengan suami. Saya tanya suami and then, memang duduk sekali satu rumahlah. So, yang saya difahamkan pesakit, ada berlaku silap faham and then, ada berlaku pergelutanlah. Ada pegang tangan and then, masa berlaku pergelutan itu ada berlaku kecederaanlah. Yang pertama, dia kata sakit bahagian hidung dan hidung ada berdarah pada hari tersebutlah. And then, kemudian dia ada sakit tangan belah kiri. Kemudian, masa saya memeriksa pesakit, pada waktu yang saya periksa itu, dah tak ada apa-apa berlaku. Sudah tak ada berlaku pendarahan hidunglah. Tapi, bila saya tekan bahagian tulang hidung dia itu, dia ada rasa sakit. Kemudian, saya tengok bahagian lain just ada kesan, kesan lebam sikitlah dekat tangan belah kiri dia. And then, saya meminta pesakit untuk buat X-Tray bahagian hidung and then, saya dapati ada kesan patahlah dekat bahagian hidung. S: ... J: ... And then, bila pesakit tiba, so seperti pesakit-pesakit lain yang contohnya di Zon Hijau, so zon yang paling tak kritikal, so, kita akan check secara luaran so apabila kita rasa yang kecederaan yang pesakit alami itu, ada patah dan sebagainya, so kita akan order X-Tray dan sebagainyalah... S: So, kalau macam dalam kes ini, Doktor cakap tadi, patah hidung, kemudian XTray dilakukan oleh Doktor ke atau dilakukan oleh Doktor lain? J: X-Tray, kita akan order. Doktor, sayalah, saya yang akan order. So, X-Tray itu akan dibuat di Jabatan Radiologilah. S: Radiologilah. J: Kemudian, dia akan bawa filem X-Tray itu ke saya, saya akan tengok. And then, saya akan, seterusnya saya akan... S: (mencelah) Analysis? J: Betul." (emphasis added)

The learned DPP submitted that, based on his qualifications and work experience, PW5 was qualified to diagnose that the victim (PW2) had sustained a fracture of the nasal bone as a medical officer in the Hospital's Accident and Emergency Department

The learned DPP then referred to PW5's evidence in examination in chief as to his qualifications and work experience as follows:- "S: Doktor boleh tak beritahu kepada Mahkamah education background Doktor? J: Saya bersekolah menengah di SBP Sains Muar. And then, saya melanjutkan pelajaran di asasi Universiti Islam Antarabangsa. And then, sambung di Universiti Islam Antarabangsa Malaysia. S: Di dalam bidang apa, Doktor? J: Bidang perubatan. S: Boleh beritahu nama penuh kelayakan degree? J: MBBS. S: Dan Doktor ada atau tidak mengikuti mana-mana kursus professional berkaitan dengan bidang tugas yang Doktor ada sekarang ini? J: Ada. S: Boleh nyatakan beberapa kursus professional yang Doktor ikuti? J: Okay, so yang berkaitan dengan bidang perubatan adalah Basic Life Support, Advanced Life Support dan Advanced Trauma Life Support dan ada beberapa lagi. S: Dan sekarang ini, ada atau tidak Doktor mengikuti mana-mana badan professional yang berkaitan dengan bidang tugas Doktor? J: Saya sebagai ahli kepada inilah, Medical Association Malaysia, MMA. S: Doktor, sebelum bekerja di Hospital Melaka, Doktor ada bekerja di manamana? J: Okay, saya ada mulakan latihanlah sebagai houseman di Hospital Tengku Ampuan Rahimah, Klang. S: Selepas houseman itu, terus masuk kerja di Hospital Melakalah?

In my judgement, upon considering the medical report (P7) and PW5's evidence, it can be discerned that PW5 had sent the victim (PW2) for an X-ray and, based on the X-ray, PW5 had diagnosed that the victim (PW2) had sustained a nasal bone fracture.

PW5's evidence was that he had requested or ordered an X-ray of the victim's nose upon examining her and sensing that she might have sustained a fracture.

Further, from the report, it can also be seen that a specialist did not see the victim until PW5 had treated the victim. Only thereafter PW5 had referred the victim to the Ear, Nose and Throat (ENT) team, which gave follow up to the victim the next morning.

According to the PW5, the X-ray was done at the Radiology Department of the hospital and after the X-ray was taken, it was sent to him for his examination.

In my view, Judicial Notice can also be taken that this sort of practice is common in the Government Hospitals when a patient comes to the Accident and Emergency Department for treatment.

Next, when PW5 was challenged by learned counsel for the Appellant during cross-examination that he has no personal knowledge of the fractured bone suffered by PW2 as he was not the one who took the X-ray, PW5 answered as follows: - "S: Saya cadang kepada kamu, kamu tidak ada pengetahuan peribadi mengenai kecederaan patah hidung pada pesakit tersebut kerana bukan kamu yang ambil X-Tray tetapi radiologi di hospital tersebut. Setuju atau tidak kamu tidak mempunyai pengetahuan peribadi berkenaan dengan kecederaan hidung telah dipatahkan. J: Okay. So, kalau daripada saya, daripada sudut pegawai perubatan di Jabatan Kecemasan. So, kita akan tengok X-Tray filem dan kita akan kaitkan dengan pesakit. So, kalau patah, kalau kita boleh nampak patah kepada bahagian tertentu dan kita kaitkan dengan kecederaan yang dialami, setelah diperiksa, so doktor bahagian perubatan layak, di bahagian kecemasan layak untuk mengeluarkan diagnosis tersebut.” (emphasis added)

In my judgement, based on PW5's evidence, the victim's X-ray was taken by a Radiographer at the Radiology Department, and her X-ray was thereafter sent to PW5.

Therefore, there was no evidence of any Radiologist who had prepared a report on the victim's (PW2) fracture of the nasal bone based on her X-ray.

It was PW5 who had examined the X-ray and based on his testimony, he was qualified and experienced to diagnose if the victim (PW2) had suffered any fracture.

PW5's medical report (P7) was admitted into evidence through PW5 as the maker.

Hence, in my judgement, PW5's medical report (P7) is sufficient to prove that the victim (PW2) had sustained a nasal bone fracture.

In support of my conclusion, a case on point in which a similar issue arose is PP v Subramaniam [1968] CLJU 112, [1968] 1 LNS 112; [1969] 1 MLJ 145, wherein Abdul Aziz, J decided as follows: "The respondent was charged in the sessions Court as follows: "That you on 27 June 1967 at about 6.45 p.m. at Kampong Bukit Jeti, Kampong Jawa Road, Klang, in the State of Selangor, voluntarily caused grievous hurt to Loganathan s/o Packirisamy and that you have thereby committed an offence punishable under s. 325 of the Penal Code." The complainant's wife, his eldest and younger sons gave evidence that the accused hit the complainant with a stick. The medical report shows that the complainant suffered a fracture of the skull. At the close of the prosecution, the learned president discharged the accused on the sole ground that since the radiographer was not called there was no evidence that the fracture shown on the X-ray film was that of the complainant. Consequently he held that there was no prima facie case of grievous hurt. In passing he remarked that the case was poorly investigated. No statements were taken from independent witnesses. Since these independent witnesses were not called to give evidence, it was right he should also invoke s. 144(g) of the Evidence Ordinance. In my view the learned president erred in dischaging the respondent on the ground that the radiographer was not called. He seemed to have lost sight of the fact that the medical report was properly admitted as evidence under s. 399 of the Criminal Procedure Code and that report clearly showed that the complainant suffered a fracture of the skull. The fact that the contents of the report have not been proved to the hilt matters little. In any event under s. 399 it is a duty of the respondent to give notice if it requires such strict proof." (emphasis added)

On the foregoing, based on the authority in Subramaniam (supra), the Accused's submission has no merit because the medical report (P7) was properly admitted into evidence under section 399 of the CPC and the report clearly showed that the victim sustained a fracture of the skull.

Neither did the Accused give notice under section 399 of the CPC to the Prosecution if such strict proof is required.

On the other hand, with due respect to learned counsel for the Appellant, I am unable to comprehend how a qualified doctor who is medically trained, working as a medical officer, is unable to diagnose that the victim (PW2) had suffered a nasal bone fracture by looking at her X-ray.

In my opinion, the diagnosis in the medical report (P7) of the victim (PW2) that she suffered a nasal bone fracture cannot constitute hearsay evidence because it was PW5 who arrived at the diagnosis after examining her X-ray. Failure to call the radiographer or radiologist and to produce the X-ray does not render the medical report (P7) inadmissible.

In these circumstances, the decisions in Subramaniam (supra), Leong Hong Khie (supra) and Sim Tiew Bee (supra), cited by learned counsel for the Appellant on the general principles governing the inadmissibility of hearsay evidence, are distinguishable, as those cases concern statements made by third persons to a witness and do not apply to the present case.

I therefore find the issue on hearsay evidence raised by learned counsel for the Appellant has no merit.

Henceforth, in my judgement, the conviction of the accused by the LSJ is safe. The Accused's appeal on conviction is hereby dismissed. Dated: 25 May 2026 YA TUAN SURIA KUMAR DJ PAUL JUDGE HIGH COURT MELAKA MELAKA For the Appellant : Mr. Muhammad Azfar bin Mahmod with Mr. Muhamad Eshan bin Nasarudin. Pejabat Penasihat Undang-undang Negeri Melaka