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Essay

Criminal Law (HELP University)

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Key facts of the case

Nazrin Hassan, the chief executive officer of the Cradle Fund CEO was found dead

in a fire at his double-storey house. He was found 30% burns on his body. Due to the

forensic investigation by the Fire and Rescue Department, this case was then

reclassified to murder. Nazrin’s wife Samirah Muzaffar, two teenage boys and Eka

Wahyu Lestari were charged with murdering Nazrin Hassan.

Introduction

The purpose of this paper is to discover and discuss the offences of murder and the

defences that are available for the accused person – in Malaysia. The first part of

this paper will be discussing about the parties which involved in this case. The

second part will introduce the burden of proof. Moreover, this paper will discover the

offences committed by the offenders. The fourth part of this paper will discuss about

whether the offenders could be entitled for a bail and what are the types of bail made

available. Furthermore, this paper also discuss the requirements of the offences that

committed by the accused. Then, it will also determine the consequences that the

offenders would have to bears if they were found guilty and convicted. Lastly, this

paper will be introducing the type of systems of trail and which trail suits with this

case.

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The parties involved in the case of Cradle Fund CEO

Public prosecutor

Section 377 of the Criminal Procedure Code (CrPC)1 stated that in every criminal

prosecution before any court, it must be conducted by the Public Prosecutor, Senior

Deputy Public Prosecutor, Deputy Public Prosecutor or Assistant Public Prosecutor.

In this case, the Deputy Public Prosecutor was Datuk Raja Rozela Raja Toran.

Section 376 (1) of CrPC2 showed that the Public Prosecutor shall have the power to

limit and instruct all criminal prosecutions and proceedings. This emphasises that

Public Prosecutor can control and direct the prosecutions by the facts provided by

them. In other words, it shows that Public Prosecutor may decline to prosecute

further at any stage of the trial but before the judgment.3

Defendant lawyer

In this case, Tan Sri Dr Muhammad Shafee Abdullah, the defendant lawyer of the

Samirah Muzaffar and another defendant lawyer is Hisyam Teh Poh Teik, he will be

representing the two teenage boys. The function of the defendant lawyers is to

protect the accused from being charge of the offences that were prosecuted for.

1
Criminal Procedure Code S,377
2
Criminal Procedure Code S,376 (1)
3
Abdul Razak Bin Haji Mohammad Hassan, The Administration of Criminal Justice In Malaysia: The
role and Function of Prosecution (pg 253)

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Burden of proof

Section 101 (1) of Evidence Act 19504 (EA) stated that whoever desires any court

to give judgment as to any legal right or liability, dependent on the existence of facts

which he asserts, must prove that those facts exist. This implies the idea that the

Public Prosecutor, Datuk Raja Rozela Raja Toran, must prove that the accused had

committed the crime. It can be further explained in the case of Woolmington v DPP5,

it stated that it is the duty of prosecution to prove the prisoner’s guilt. Moreover, in

Section 101 (2) of EA 19506 stated that when a person is bound to prove the

existence of any fact, it is said that the burden of proof lies on that person. To put it

simple, this implies that in order to charge the accused under murdering of the

deceased, the Public Prosecutor must present the proof. The idea behind this

principle is that all accused before the court are presumed innocent until proven

guilty by the court7. Moreover, the proof that was presented by the Public Prosecutor

must beyond the reasonable doubt (BRD) as it was the standard of proof in Malaysia

criminal prosecution.

4
Evidence Act 1950 S,101 (1)
5
Woolmington v DPP [1935] UKHL 1
6
Evidence Act 1950 S,101 (2)
7 rd
Stanley Yeo, Neil Morgan, Chan Wing Cheong, Criminal Law in Malaysia and Singapore, (3 edn,
Lexis Nexis 2018),para 2.22, pg 34

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The offences committed by the offenders

In the forensic reports done by the experts in University Malaya Medical Centre, the

post-mortem of Nazrin shows that the death was due to the multiple blunt forces to

his head and this can generally cause the death of the deceased. Section 300 (a) of

the Penal Code (PC)8 declared that if the act done by someone with the intention of

causing death of the deceased, then that person will be charged under murder. In

this case, as the multiple blunt impacts to Nazrin’s head were severe and it implied

the idea that the accused wanted him to die. Moreover, in this case there were more

than one people involved in murdering of the deceased, they could also be charge

with murder under Section 34 of the PC9. Here, it clearly stated that when a criminal

act is done by several persons with the same intention, each person will be liable for

the act. Hence, it is submitted that all of the four persons have mens rea of

murdering Nazrin, this showed that they could be charge under Section 34 of the

PC10 for murdering.

8
Penal Code S,300 (a)
9
Penal Code S, 34
10
Penal Code S,34

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Bails entitled for criminal proceedings

The types of the bail

In Malaysia, there are three categories of offences, bailable, non-bailable and

unbailable. Under Section 2 (a) of the CrPC11, bailable offence means the offender

can request for a bail upon anything listed in the First Schedule or by any other Law

for the time being in force. In other words, bailable offences are regarded as less

grave and less severe. For non-bailable offence, under Section 2 (a) of the CrPC12

it stated that it means any other offence. Non-bailable offences are those punishable

with three years’ imprisonment or more, or by death. Here, bail may be given at the

discretion of the courts. However, there are exceptions and bail may be offered for

any person under the age of 16 years or any woman or any sick or infirmed person

accused of such offences13. Unbailable offences mean the court simply have no

discretion to grant any bail, regardless of the punishment the offences carry, or the

gender, age or the health condition of the accused. In other words, unbailable

offences state that if the accused was sentenced to death or life imprisonment, that

accused could not entitled to bail.

11
Criminal Procedure Code, S,2 (a)
12
Criminal Procedure Code, S,2 (a)
13
The Malaysian Bar, Bail, https://www.malaysianbar.org.my/bail_.html?date=2018-07-01, accessed
th
8 November

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The bail that entitled for the offenders

In this case, the two young teenagers were entitled to non-bailable offences as they

were charged under murder, which the punishment will be death penalty. However,

because both teenagers were young, the High Court judge then decided to allow the

bail for both of them with the amount of RM50, 000. For Samirah Muzzafar, at first

the High Court judge dismissed her bail but when it reached Federal Court, the judge

then allowed the bail for her. Therefore, she was also entitled to non-bailable

offences. The Federal Court judge allowed the bail as the accused need to take care

of her two young children and the accused had promised to pay RM 500, 000 which

the judge felt that it was reasonable to ensure she did not jump bail. Moreover, for

Eka Wahyu Lestari because she was still at large. As she was still at large, there

was no bail entitled to her.

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The requirements of the offences

Although previous paragraph had discussed about the offences committed by the

four accused, however, in order to prove that they were guilty, there were

requirements that must fulfilled. Actus reus (AR) and mens rea (MR) are the most

important ingredients in dealing with a criminal case.14 Once the AR and MR were

fulfilled, the accused was will be guilty of that crime.

Actus Reus

The definition of AR is the physical element of the case which means the conduct or

act of the accused in the case. Under Section 33 of the PC15, the word “act”

denotes as well a series of acts as a single act. To illustrate, A may have shot D in

the head, killing him instantaneously. The act of shooting will incriminate A of murder.

However, an act is not criminal unless it is the operating and substantial cause of the

death that had occurred. For example in case of R v White16, the accused gave her

mother a drink with poison, however, her mother died because of heart attack. The

court held, because the act of the accused was not the operating and substantial

cause, therefore the accused was found guilty of attempted murder. Moreover, there

are three different aspects of AR which are; proof that victim was died, proof that the

victim died because of the injuries, and lastly proof that the injuries were caused by

the accused person. In this case, according to the report of post-mortem, it can be

14 rd
Stanley Yeo, Neil Morgan, Chan Wing Cheong, Criminal Law in Malaysia and Singapore, (3 edn,
Lexis Nexis 2018),para 3.1, pg 71
15
Penal Code S,33
16
R v White [1908-10] All ER Rep 340 (CA)

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seen that Nazrin had died because of the multiple blunt on his head and a puncture

wound on the deceased’s neck which believed to be caused by an arrow as both of

the teenagers were found that they are the member of their school’s archery club. In

sum, the accused were found guilty in AR.

Mens Rea

The definition of the MR is often described as comprising the mental element of the

crime which is the intention or knowledge. In case of Hearne v Garton17, the

accused sent vitriol without marking the nature of the goods on the package which

then resulted in sending the package under different description. However, the court

held that the accused could not be liable in the absence of MR. Moreover, there are

two aspects that shall be focus to determine the intention of the accused in order to

prove that accused has a guilty MR, which are the weapon used in the case and the

injuries found on deceased. In this case, the weapon used to kill Nazrin was an

arrow which was found in an archery bag in one of the suspects’ home. There were

multiple blunt impacts to Nazrin’s head and puncture wound on Nazrin’s neck. These

injuries were severe enough to prove that the accused had the intention to kill Nazrin.

In sum, the accused were found guilty in MR.

17
Hearne v Garton (1859), 2 EL &EI 66, 28 LMJC 97, 33 LTOS 256, 23 JP 693, 5 Jur NS 648, 7 WR
566, 121 ER 26

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The consequences after the accused found guilty for the offences

Under Section 277 of the PC18, it stated that any person sentenced to death, that

sentence shall direct that person will be hanged by the neck till that person is dead.

In this case, if Samirah Muzaffar and Eka Wahyu Lestari found guilty for causing

death of the Nazrin, they will be punished under death penalty as according to the

offences stated in previous paragraph. Section 302 of the PC19 expressed that

whoever committed murder will be punishable with death penalty. For the two

teenagers who aged 14 and 17, if both of them found guilty, they will not be

sentenced to death but they will be sent to the rehabilitation centre. Section 97 of

Child Act 2001 (CA)20 declared that a child cannot be entitled to death penalty

although the offences were severe. In other words, it showed that both of the

teenagers will not be punished to death penalty when they found guilty.

18
Penal Code S,277
19
Penal Code S,302
20
Child Act 2001 S,97

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The system of trial

The Malaysian legal system is built on the foundations of the common law tradition

and is an adversarial system. Adversarial system means that the judicial proceeding

involves the competing parties submitting their case and presenting their arguments

in the manner that they see fit. The judge does not play an investigative role and, to

the extent, cannot enter the fray but must decide the case based on the evidence

and submissions presented by both sides. In other words, it stated that if Samirah

Muzaffar believes that she has a strong case, the Court cannot make the

determination without first going through the careful and deliberate process of

considering all the evidence. The Courts must hear and consider all the arguments

put forward by both sides, unless the issues are clear-cut. Moreover, Section 158 of

the CrPC21 stated that the court may change or add anything at any time before

giving out the judgement. This means that if the parties discover anything that was

relevant with the case, the parties were able to present to the judge. Section 165 (3)

of the CrPC22 voiced that if there were more than one people constitute an offence,

those people will be charged with and tried at one trial for the offence constituted. In

this case, it means that the four accused will be charged together and tried in one

trial by the judge.

21
Criminal Procedure Code S,158
22
Criminal Procedure Code S,165 (3)

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