USUF MATLI v Pendakwa Raya (B-05(M)-307-08/2023)

There are three (3) appeals by Usuf Matli, a Cambodian citizen ("the Appellant" or "the Accused") against the decision of the High Court in two criminal trial which found that the Appellant was guilty of the four (4) charges and convicted under section 302 of the Penal Code. The Appellant was sentenced to death by hanging.

The Appellant was charged with four (4) counts of capital offences under section 302 of the Penal Code registered under two (2) separate case numbers which are 45B-18-06/2016 and 45B-19-06/2016.

In Criminal Trial No. 45B-18-06/2016, the charges are as follows: First Charge "Bahawa kamu pada 6/9//2015 jam di antara 3.00 pagi hingga 1.30 petang bertempat di kebun kelapa sawit FELCRA Batu 7 Kampung Sijangkang, 42500 Telok Panglima Garang di dalam daerah Kuala Langat, dalam Negeri Selangor Darul Ehsan, telah melakukan pembunuhan ke atas seorang kanak-kanak lelaki nama Rahimi Bin Yusuf No Surat Beranak CA 74510 dan dengan itu kamu telah melakukan satu kesalahan yang boleh di hukum di bawah Seksyen 302 Kanun Keseksaan". Second Charge "Bahawa kamu pada di antara 6/9/15 jam lebih kurang 3.00 pagi hingga 7/9/15 jam lebih kurang 8.10 pagi bertempat di kebun kelapa sawit FELCRA Batu 7 Kampung Sijangkang, 42500 Telok Panglima Garang di dalam daerah Kuala Langat, dalam Negeri Selangor Darul Ehsan, telah melakukan pembunuhan ke atas seorang perempuan Salamah Bt Yusof (KP: 400202-71-5198) dan dengan itu kamu telah melakukan satu kesalahan yang boleh di hukum di bawah Seksyen 302 Kanun Keseksaan."

Meanwhile, in Criminal Trial No. 45B-19-06/2016, the charges are as follows: First Charge "Bahawa kamu pada 6/9/2015 jam di antara 1.00 pagi hingga 7/9/2015 jam lebih kurang 7.20 malam pagi bertempat di kebun kelapa sawit FELCRA Batu 7 Kampung Sijangkang, 42500 Telok Panglima Garang di dalam daerah Kuala Langat Dalam Negeri Selangor Darul Ehsan, telah melakukan pembunuhan ke atas Fatimas Bt Aly ( No Passport N0831584) dan dengan itu kamu telah melakukan satu kesalahan yang boleh di hukum di bawah Seksyen 302 Kanun Keseksaan." Second Charge "Bahawa kamu pada di antara 6/9/15 jam lebih kurang 1.00 pagi hingga 7/9/15 jam lebih kurang 7.25 malam di kebun kelapa sawit FELCRA Batu 7 Kampung Sijangkang, 42500 Telok Panglima Garang di dalam daerah Kuala Langat, dalam Negeri Selangor Darul Ehsan, telah melakukan pembunuhan ke atas seorang kanak-kanak lelaki nama Asnawi Bin Ahmad, No surat beranak 030803-10-1495 dan dengan itu kamu telah melakukan satu kesalahan yang boleh di hukum di bawah Seksyen 302 Kanun Keseksaan."

At first, the Appellant was only found guilty by the first learned High Court Judge in the first charge of Criminal Trial No. 45B-18-06/2016. For the three remaining charges which are the second charge vide Criminal Trial No. 458 18-06/2016 as well as both charges vide Criminal Trial No. 458-19-06/2016, the first learned High Court Judge found that the prosecution has not made out a prima facie case against the Appellant. Accordingly, the Appellant was acquitted and discharged without being called to enter defence.

Being dissatisfied, the prosecution appealed to the Court of Appeal. The appeal was successful and the Court of Appeal (first Court of Appeal) ordered the defence to be called.

As the first learned High Court Judge has since retired, the hearing of the trial at the defence stage in respect of the three (3) charges was then heard before the second learned High Court Judge. At the conclusion of the trial for the three (3) charges, the Appellant was convicted for the offence of murder as framed in respect of the three remaining charges. The second learned High Court Judge did not persuaded to impose the custodial sentence on the Appellant and thus sentenced the Appellant to death by hanging.

Dissatisfied, the Appellant appeals against the decision of the High Court. At the hearing of the appeals before us, we have been informed that the Public Prosecutor that the Appellant's letter of representation to the Attorney General's Chambers requesting for the charges under section 302 of the Penal Code to be reduced to section 304(a) of the Penal Code was accepted. This was confirmed by the Appellant who then plead guilty to the alternative charge under section 304(a) of the Penal Code.

Thereafter, we record the Appellant's conviction under section 304(a) of the Penal Code. The conviction and death sentence by hanging under section 302 of the Penal Code by the High Court is set aside. We then invite the parties to submit on the sentence.

Counsel for the Appellants prayed for the sentence of 12 years imprisonment for each charge and all runs concurrently. Nevertheless, the prosecution applied for 18 years imprisonment for each charge and all to be run consecutively.

After hearing both parties and perusing the records of appeal, we unanimously decided to impose the sentence of imprisonment of 15 years for each charge and all to be run consecutively. Dissatisfied, the Appellant now filed his appeal to the Federal Court on sentence. Thus, these are our grounds which mainly focussing on the sentence.

The learned second High Court Judge had outlined the material facts of prosecution case in her grounds of judgment which we respectfully adopt them with modification whenever necessary.

On 06.09.2015, at about 3.00 a.m., while at her uncle's (Ahmad bin Haji Omar) house at Sijangkang ("the said house"), Nurul Fairoz binti Yusof (PW9) was woken up from sleep by her grandmother Salamah bt Yusof ("Salamah"). Salamah had asked both PW9 and her younger brother Rahimi Bin Yusuf ("Rahimi") to accompany her that morning when the accused arrived at the said house to fetch them on his motorcycle.

According to PW9, Salamah told her that the accused had earlier on fetched her aunt Fatimas St Aly ("Fatimas") and cousin brother Asnawi Bin Ahmad ("Asnawi") from the said house. The accused then fetched PW9, Salamah and Rahimi on his motorcycle to an oil palm estate where Salamah was asked to alight first, followed by Rahimi and PW9 about 100 metres ahead.

PW9 testified that the accused then hit her on her head with a stick where PW9 pretended to fall unconscious onto the ground. Her brother Rahimi who saw what had happened started to scream. The accused then went towards Rahimi and strangled him to death before throwing his body into a watery drain/ditch covered by thick undergrowth and weeds. Upon seeing this, PW9 seized the opportunity to run for her life and away from the accused where she finally reached a road which led to Kampung Rumbia. There, she met a man ("pakcik") where she told him what had happened back in the oil palm estate. This pakcik then sent PW9 back to her home (ie. the said house) on his motorcycle.

At about 10.00 a.m the same morning, next door neighbour Norsyikin Bin Md Arsad (PW5) found PW9 at the said house looking unkempt, dishevelled with scratches on her face. Upon inquiries made by PW5, PW9 told PW5 what had happened hours earlier. PW5 then telephoned the Kuala Langat Police Station to make a report.

Corporal Rosri Bin Shudin (PW2) who received the telephone call from PW5 then lodged a police report vide Telok Panglima Garang Report No. 3835/205 (P14). Thereafter LKpl Zaini Bin Rosmani (PW3) and Constable 183867 Tien Siong Loung arrived at the house of PW5 at Jalan Rumbia, Batu 8, Kampung Sijangkang, Teluk Panglima Garang where police investigations ensued.

At about 1.00 p.m. PW3 together with the police officers from Teluk Panglima Garang Police Station conducted a search operation at an oil palm estate in Ladang Kelapa Sawit Felcra, Batu 7, Sijangkang, Teluk Panglima Garang. PW9 who was accompanied by PWS assisted the police team in the said search operation. During the said search operation, at a small lane in the oil palm estate, PW9 found a pair of her pink slippers which she had left behind in the wee hours of 06.09.2015 when she fled from the accused. Using the slippers as clue, the police soon found the half-submerged body of Rahimi in a watery drain/ditch covered by thick undergrowth and weeds, where only one of his legs was partially visible from the ground.

Investigating officers Inspektor Mohd Anuar (PW11) and DSP Hussin Bin Zamora (PW14) as well as ASP Mohammad Nawawi (PW12) from the Forensics Department were then duly informed of this gruesome discovery. The body of Rahimi was subsequently sent to Hospital Banting for an autopsy.

On 07.09.2015@ 1.40 a.m., pursuant to police investigations, PW11, PW14 and a team of police officers seized a Yamaha 135LC motorcycle bearing registration number BNH3950 ("the said motorcycle") believed to be used by the accused from the accused's house. The police also arrested Mat Warah (the accused's wife), the accused's children as well as his other family members and brought them to the police station.

Subsequent investigations revealed that the said motorcycle belonged to Mohd Ajrulamin bin Mahathir (PW7) who was the former brother-in-law of the accused. However, PW7 allowed the accused to use the said motorcycle to carry out his fruits and drinks peddler business.

On 07.09.2015@ 5.00 a.m, with the assistance of PW7, the police succeeded in arresting the accused at a Petronas Fajar Firasat Ent petrol station situated at KM34.5 Kesas Highway. The accused was then brought to the Telok Panglima Garang police station for interrogation.

At about 8.00 a.m the same morning, guided by the accused, PW11, PW14 and the police team went to a Felcra oil palm estate at Batu 7, Sijangkang Panglima Garang. There, the accused pointed out to the police team a prone position of the body of Salamah in a watery drain/ditch covered by thick undergrowth and weeds. The body of Salamah was later sent to Hospital Banting for an autopsy.

Subsequently, at 5.30 p.m the same day (i.e. 07.09.2015), DSP Arun a/l Doon Tiang (PW6) informed PW14 that a Cambodian Passport No.831548 belonging to Fatimas has been found in an oil palm estate at Jalan Kawasan 12, Felcra Batu 7, Sijangkang Panglima Garang. Upon receipt of the said information, both PW11 and PW14 conducted further interrogations on the accused.

Consequently, the accused led PW11, PW14 and the police team to two (2) other bodies in a watery ditch/drain covered with thick undergrowth and weeds in the said oil palm estate. The bodies found were that of Fatimas and Asnawi which were situated 20 meters apart from each other. Fatimas was found naked from the waist down with a pair of black trousers wrapped around her neck while Asnawi was found in a supine position. Both bodies were also sent to Hospital Banting for post-mortem examinations.

On 08.09.2015, PW9 identified the accused in an identification parade held by DSP Khairul Azizi Bin Ismail (SP10).

Dr Kartini Binti Mohd Arid (PW1), the forensic expert who conducted the autopsies on all the four bodies testified as follows:

that the cause of death of Rahimi was due to drowning;

that the cause of death of Salamah was due to blunt trauma to the chest; and

that the causes of death of both Fatimas and Asnawi were due to compression to the neck. [28] As mentioned earlier in introduction, the first learned High Court Judge and the first Court of Appeal held that there are prima facie cases against the Appellant in all charges. The Appellant then was called for defence. [29] Since at the hearing before us, the Appellant had pleaded guilty to the alternative charge under section 304(a) of the Penal Code, we are not extensively discussing the prima facie of prosecution case. THE DEFENCE CASE [30] When called for defence, the Appellant elected to give sworn testimony. Summarily, the Appellant asserted that he had never met all the victims before and he denied killing all the victims. In his sworn testimony, the Appellant testified that he went back home to bed after the drinking sessions with his friends Boo and Ahmad at the material time. [31] According to the Appellant, he was forced to make a confession. He fell unconscious three times and was sent to a dark room for 46 days. Thereafter, he was brought by the police to an oil palm estate which he has never seen or been to. At the estate, he was threatened by the police that he will be shot dead if he did not or could not find the dead body. [32] The Appellant testified that Boo and Ahmad were responsible for the murders of all the victims, including Ahmad Omar and his wife Fatimas, and he suggested that he was falsely implicated by them. Boo and Ahmad was said to have returned to their home country of Cambodia after the Appellant was arrested. [33] However, at the defence stage, the Appellant agreed with the learned DPP that the location of the bodies would not and could not have been seen by persons who have only gone there for the first time. This was because the bodies were found in a watery drain/ditch covered by thick undergrowth and weeds in the oil palm estate. However, the accused denied that he was the one who pointed out the locations of the three (3) bodies to the police. [34] At the conclusion of the trial, the defence had submitted the following:

There was no evidence of accused's DNA at the scene or on the items or bodies recovered.

The evidence by PW9 was not credible.

There was more than one motorcycle seen passing by the oil palm estate on the night of the murders.

There were others in the oil palm estate on the night in question.

There was/were no eye witness(s) who saw the accused murder the 3 victims. FINDINGS OF THE LEARNED HIGH COURT JUDGES AT THE CONCLUSION OF THE TRIAL [35] At the conclusion of the trial, the second learned High Court Judge found that the defence are nothing more but regurgitation of the same arguments raised by the learned counsel in their submissions at the end of the 10 prosecution case for all four charges on whether a prima facie case had been made out in which the abovesaid issues were accordingly dealt with by the first learned High Court Judge. It was the finding of the High Court that the Appellant's sworn statement from the dock nothing more than a blanket denial of any knowledge of the murders, a mere afterthought and the Appellant himself was an untruthful witness. His evidence was nothing more but a bare denial, doubtful and not credible. [36] The second learned High Court Judge was of the view that the absence of any evidence on both Boo and Ahmad remain nothing more than a mere figments of imagination. The Court was not satisfied that a reasonable doubt has been cast by the defence on the prosecution stage. [37] Consequently, this High Court was satisfied that on the entire evidence adduced, the prosecution has proved its case beyond reasonable doubt against the accused of all charges of murder as framed and punishable under section 302 of the Penal Code. The accused is thus found guilty and convicted on all three charges of murder. THE APPEAL [38] Aggrieved with the decision of the High Court, the Appellant filed the appeals, which were set for hearing before us. In his Petition of Appeal, the accused had raised several grounds of appeals. However, since the Appellant had pleaded guilty to the alternative charge under section 304(a) of the Penal Code at the hearing, both parties had then submitted on the sentence only. The main concern of the parties here is on whether the sentence of imprisonment shall run concurrently of consecutively. [39] The learned counsel for the Appellant, mitigated that the Appellant who is a married 39 years old male with wife and kids, had served imprisonment for 10 years since 2015. In the prison, the Appellant is also struggling with a mental health condition, requiring constant medication as he suffered from delusion. The Appellant wish to go back to his family in Myanmar. The fact that the Appellant pleaded guilty for all the charges stands as a testament to his deep remorse. Thus, according to the learned counsel for the Appellant, he deserves for 1/3 remission of total sentence and the counsel humbly proposed for the imprisonment sentence of 12 years for each charge to run concurrently. [40] The defence counsel referred us to the case of Sinnathurai Subramaniam v Public Prosecutor [2011] MLJU 1582 in which the Court of Appeal upheld the sentence pronounced by the High Court whereby the accused was sentenced to 24 years of imprisonment. In this case, the accused was charged of murdering two victims. [41] On the other hand, the public prosecutor submitted that the offence of murder committed by the Appellant cannot attract leniency thus a severe sentence is called for. According to the public prosecutor, public interest should outweigh the factors in mitigation pleaded by the Appellant, i.e. the Appellant's plea of guilty. Furthermore, the Appellant's remorse could not restore the four victims' life. The trend shared by the public prosecutor suggested the imprisonment of 18 years for every charge to be imposed against the Appellant.

[42] Having considered these appeals and with the strands of evidences led by the prosecution and the plea of guilt by the Appellant to the alternative charge under section 304(a) of the Penal Code, we unanimously impose the sentence of imprisonment of 15 years for each charge and all to be run consecutively. [43] We impose consecutive sentences with the view that we have to consider the seriousness of the offence and the overall circumstances of the case. From the facts, the Appellant had committed murder not to only one but four innocent victims. Adding to that, two of the victims are children. [44] The mitigating factors presented by the Appellant are not sufficient to save him from being punished 'consecutively' as they were not enough to set aside the public interest. We do consider the guilty plea by the Appellant but it should be noted that the interest of the public are the most important considerations and precede other considerations. [45] With regard to sentencing on whether the sentences of imprisonment should run concurrently or consecutively, we are guided by the decision of Nik Hashim JCA in the case of Yit Kean Hong v. PP [2005] 4 CLJ 592 which held as follows: "In deciding whether the sentences of imprisonment should run concurrently or consecutively, first and foremost, the court must look at the facts and circumstances of each case and the background of the accused. Generally, where two or more distinct offences have been committed, all sentences of imprisonment ought to be made consecutive. On the other hand, where the offences are committed in the course of a single transaction i.e. where the second offence is subsidiary to the first offence, the sentences of imprisonment ought to be made concurrent." [46] However, for the offence of murder as in this case, we take the view that the duration of imprisonment which is longer is more effective for the purpose of retribution, deterrence, prevention and rehabilitation. This was also the view of the Court of Appeal in the case of Pendakwa Raya Iwn Mohamad bin Tawakal [2013] 1 MLJ 759 and the case of Pendakwa Raya v Prabu A/L Veeramuthu and Others [2010] MLJU 663 which held the same as follows: "In addition, a consecutive sentence is necessary to discourage others from committing violent crimes affecting the human body resulting in death." [47] Moreover, it is also our view that a concurrent term of imprisonment even though would undeniably result in the Appellant being imprisoned once for all the offences committed but that would not do justice to all the victims. CONCLUSION [48] In the upshot, it is our unanimous decision that the Appellant is guilty for the offence under section 304(a) of the Penal Code as pleaded. Therefore, the conviction and death sentence by hanging under section 302 of the Penal Code by the High Court is set aside. We impose the sentence of imprisonment for a term of 15 years for each charge and all to be run consecutively. Therefore, the total of sentence is 60 years imprisonment from the date of arrest. -sgd- (AZMAN BIN ABDULLAH) Judge Court of Appeal Malaysia Putrajaya Date of Decision :12 March 2024 Grounds Issued : 30 July 2024 Legal Representation For the Appellant : Salim Bashir (together with Nur Aisyah Binti Mohd [Messrs. Salim Bashir, Ruswiza & Co.] For the Respondent : Mohd Fairuz Bin Johari [Attorney General's Chambers]