LETTER | AGC should not seek death penalty for six UPNM students

LETTER | Madpet (Malaysians Against Death Penalty and Torture) is appalled by the fact that the public prosecutor (also the attorney-general) will appeal against the High Court’s ruling to convict six students of Universiti Pertahanan Nasional Malaysia (UPNM) who were initially charged with murdering UPNM cadet officer Zulfarhan Osman Zulkarnain to culpable homicide not amounting to murder.

The six young persons, who were found guilty of culpable homicide not amounting to murder, were sentenced to 18 years imprisonment.

It is disturbing that the Attorney General’s Chambers(AGC) was reported wanting to appeal, possibly with the hope or intention that the appellate court will find them guilty of murder (Section 302 of the Penal Code), which would result on the six young persons being mandatorily sentenced to death by hanging.

It must be noted that there are several killing offences in the Malaysian Penal Code. Murder is the most serious (mandatory death penalty), and culpable homicide not amounting to murder under Section 304(a) is the second most serious (maximum 30 years imprisonment).

Muhammad Akmal Zuhairi Azmal, Muhammad Azamuddin Mad Sofi, Muhammad Najib Mohd Razi, Muhammad Afif Najmudin Azahat, Mohamad Shobirin Sabri and Abdoul Hakeem Mohd Ali were found guilty of killing with the intention of causing death, or of causing such bodily injury as is likely to cause death, and as such was convicted for culpable homicide not amounting to murder under Section 304 (a) of the Penal Code, and were then sentenced to 18 years imprisonment, an offence that carries a maximum penalty of 30 years imprisonment.

An 18-year sentence is more than just for these first-time young offenders, noting that they were 21-22 years old when the offence was committed.

Several different types of murder or culpable homicide

Murder is the worst kind of culpable homicide. The second lesser forms of culpable homicide whose punishment is provided for in Section 304 Penal Code, and the heading ‘culpable homicide not amounting to murder’, must not confuse us.

In some countries, like the US, there are several types of murder, like first-degree murder, second-degree murder, third-degree murder… whereby the different types of murder attract different sentences, with first-degree murder having the highest sentence.

However, in Malaysia, like in most Commonwealth countries, we do not divide murder into different degrees, but we define killing offences into murder or culpable homicide not amounting to murder( two types), and some other lesser offences. For Malaysia, the offence generally is culpable homicide

Members of the public may be confused about the law, but the public prosecutor should not, for, after all, the current conviction of culpable homicide not amounting to murder is under Section 304(a), which means that the courts found that their "...act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death…", and the maximum sentence for this offence "…imprisonment for a term which may extend to 30 years, and shall also be liable to fine..."

However, if "…the act is done with the knowledge it is likely to cause death but really no intention of killing the victim…"(304(b), then the sentence for this second type - culpable homicide not amounting to murder - is lesser.

Court has power to reduce charges

The Federal Court on Nov 10, 2021 advised High Court judges hearing murder cases to see if the accused really deserve the death sentence. The court has the discretion to reduce the murder charge to culpable homicide not amounting to murder and the accused could instead face a jail term of up to 30 years.

For murder, normally evidence of premeditation or pre-existing malice or ‘malice aforethought’ is required.

The Federal Court made these remarks in a 60-page judgment on why the Federal Court had in July reduced the murder charge faced by an American, Gerald Wayne Mickelson, over the death of his former wife at a hotel room in Kuala Lumpur five years ago, to culpable homicide not amounting to murder.

The Federal Court panel of Chief Justice Tengku Maimun Tuan Mat, Mohd Zawawi Salleh and Harmindar Singh Dhaliwal substituted the capital punishment (death penalty) with a seven-year jail sentence.

It must be pointed out that Malaysia today in adherence to the United Nations General Assembly, which Malaysia voted in favour again in 2020, is imposing a moratorium on execution pending abolition of the death penalty.

Malaysia is already taking steps towards abolition, possibly first abolishing mandatory death penalty for offences including murder thus restoring discretion to judges when it comes to sentencing.

The family and friends of the deceased Zulfarhan, whose body had burn marks and bruises, hopefully would understand that our values and principles call for forgiveness, not death by hanging for these young killers.

As such, Madpet:

• Calls on the attorney-general (public prosecutor) not to appeal or continue with the appeal of the conviction and the 18-year prison sentence of Muhammad Akmal Zuhairi Azmal and the five young people seeking a murder conviction which will lead to the imposition of the mandatory death penalty.
• Reiterates the words of the Federal Court that judges must be cautious of convicting persons for murder, and consider other killing offence that does not result in capital punishment;
• Urges Malaysia to expedite the abolition of the death penalty, maybe starting with the abolition of the mandatory death penalty. The moratorium on execution pending abolition ought to be maintained; and
• Urges state governments to move state rulers to exercise their pardon powers to commute death sentence into imprisonment of the more than thousand who are on death row in Malaysia. The current government and the past governments, after all, have said that they will be abolishing the death penalty.

CHARLES HECTOR is a spokesperson for the group Malaysians Against Death Penalty and Torture (Madpet).

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.