I REFER to Charles Hector’s “18 years’ jail for Zulfarhan’s killers is just punishment”.

Hector speaks for Malaysians Against Death Penalty and Torture (Madpet).

It is understandable that Madpet is appalled that the public prosecutor will appeal against the High Court ruling that convicted six Universiti Pertahanan Nasional Malaysia (UPNM) students of culpable homicide not amounting to the murder of UPNM marine cadet officer Zulfarhan Osman Zulkarnain.

The appeal will mean that the public prosecutor will seek the appellate court to find the six guilty of murder (section 302 of the penal code), which will result in them mandatorily sentenced to death by hanging.

But as a lawyer, Hector should know better that the justice of the case is whether the conviction for culpable homicide not amounting to murder is good in law or can be sustained in law and on the facts. It is not whether the 18 years’ imprisonment is just, or as Hector puts it, “is more than just for these first-time young offenders”.

In the case that was referred to by Hector, that is, the murder charge faced by American Gerald Wayne Mickelson, over the death of his former wife at a hotel room in Kuala Lumpur five years ago, the Federal Court rightly reduced the charge to culpable homicide not amounting to murder.

It was because the accused person’s conviction for murder in the High Court and upheld by the Court of Appeal was unsafe for reason that the much-vexed element of mens rea (intention) in the commission of the offence was missing.

In that case, it was contended by the counsel for the accused person that he did not have the requisite mens rea to have been found guilty and convicted of murder under section 302 of the penal code (PC). In particular, it was argued that the offence could not amount to murder under the section as the mens rea element in the case could not come within section 330(c) PC.

It was further argued that, in any event, exception 4 to section 300 PC also applied such that the offence committed could not amount to murder. (See the judgment here.)

On the facts, it was argued that the accused person had absolutely no intention to inflict the fatal injury on the deceased, his former wife.

He was mere hours away from departing for Manila and only came back to the hotel suite where his former wife was out of concern for the distress that she was in.

This concern negated any presumption or inference that he had intended to inflict such bodily injury that was sufficient in the ordinary course of nature to cause death or outrightly kill her.

According to the Federal Court, there was much force in the arguments. Having considered the totality of evidence, the court was of the view that the courts below (High Court and Court of Appeal) were wrong in convicting the accused person of murder under section 300(c) PC. The conviction was against the weight of evidence.

The court was, therefore, persuaded that the conviction for murder could not be sustained in law and on the facts.

On the facts and evidence adduced, a conviction for a lesser offence of culpable homicide not amounting to murder under section 304(b) PC was justified.

Clearly, the justice of the case lies in whether the conviction can be sustained in law and on the facts.

Hector, too, should know better that it is through an appeal process that the decision in the court or courts below may be reviewed for errors in law.

In any case, a notice of appeal can be withdrawn after the full written grounds of judgment are made available to the parties as part of the appeal process.

So, Madpet may stand against the death sentence. But it cannot be appalled at the public prosecutor’s appeal when appeal may correct errors of law and, therefore, uphold the rule of law as the case is in the case of Gerald Wayne Mickelson.

Justice is when the conviction can be sustained in law and on the facts. – November 12, 2021.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.