"My son was tortured and murdered but no one will have to pay for this."
- Xu Jian Lai, the father of Jian Huang.
"Suffice for me to conclude that with such doubts, it would not only be unfair, but legally wrong, for me to call any of the three accused for their respective defence. There is not much evidence adduced against all three for their defence to be called."
- Justice Datuk Abdul Kadir Musa said in his 49-page judgment.
The accused in the 36-day murder trial of Jian Huang, Datuk Seri Koh Kim Teck, Resty Agpalo and Mohamed Najib Zulkifli walked out of court without their defence being called.
The trial came to a surprise end yesterday when all the three accused for the murder of 14-year-old Xu Jian Huang were set free without the defence being called because there was insufficient prima-facie evidence to indict them.
HYPOTHESIS: JIAN HUANG SUDAH MATI KATAK!
How can this happen?
The Malaysian Penal Code (Act 574) defines murder as culpable homicide, that is, "whoever causes death by doing an act with the intention of causing death or with the intention of causing bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." (Section 299, Penal Code).
Section 300 of Penal Code describe Culpable Homicide is murder if:
- the act by which the death is caused is done with the intention of causing death; or
- if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused; or
- if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or
- if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.
Everyone has to understand that criminal law principles for murder require the prosecution has to prove beyond reasonable doubt that the accused had committed the unlawful killing of a subject of the King’s peace with malice afterthought . The prosecution also had to prove with evidence of the existence of Actus Reus and the presence of Mens Rea.
It is a general principle of criminal law that a person may not be convicted of a crime unless the prosecution have proved beyond reasonable doubt that the accused caused a certtain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbidden by criminal law, and that the accused had a defined state of mind in relation to the causing of the event or the existence of the state of affairs.
The event or the state of affair is called 'Actus Reus' and the state of mind the 'mens rea' of the crime.
In the terminology used by Glanville Williams:
"Actus Reus includes ... the absence of any ground of justification or excuse, whether such justification or excuse be stated in any statute creating the crime or implied by the courts in accordance with general principle ..."
In the view of D.J. Lanham:
"As a matter of analysis we can think of a crime as being made up of 3 ingredients - actus reus, mens rea, and (a negative element)absence of a valid defence."
If the actus reus of a particular crime does not exist or occur, then a crime is not committed. The actus reus required for a murder charge are that the accused had committed an act which was unlawful and was the cause of death; that the act was voluntary; the act was factual and was the legal cause of death; that the act was substantial and operative cause of the death; and the chain of causation was not broken by an intervening event.
The literal meaning of Mens Rea means "a guilty mind". Mens rea mean the state of mind, intention or recklessness, required by the particular crime and 'negligence' to describe failures to comply with a standard of conduct.
It is however difficult to separate the actus reus from mens rea. Without that mental element (mens rea), the actus reus simply cannot exist. Actus reus is not merely an act. it may indeed consist in a 'state of affairs'. Often, the actus reus requires proof of an act or an omission (conduct) of a particular result. In murder, it must be shown that the accused's conduct caused the death.
The prosecution in this case had anchored on the notion of a motive that Jian Huang was tortured and then murdered for stealing $30,000 belonging to Datuk KT Koh. The defence lawyers argued that the boy's death was accidental.
The judge enunciated that it was vital for the prosecution to show there was "common intention" and "joint liability in doing the criminal act" since the three accuse had been jointly charged with murdering Xu Jian Huang. The judge said he had dissected all the relevant evidence and could not find any evidence of a common intention.
According to the judge, the prosecution had failed to call investigating officer, Inspector Moin to give an update on the status of his investigation on the theft of $30,000. "Not doing so has gravely destroyed the prosecution's case." The judge also noted that he could not admit a caution statement by witness Mohd Razbean Md Tab, Koh's driver, who was missing since the trial began. Razbean had said in his caution statement that he saw Agpalo and Najib throw Jian Huang into the swimming pool.
Hafiz Yatim and Fay Angela of NST raised some vexing questions: "Why was police investigation so weak and porous? Are our police incapable and incompetent to meet the exacting standards expected by the courts?"
In the view of Brendan Pereira, "Someone needs to be concerned" over the fact that 3 high profile murder cases have resulted in stunning defeats for the prosecuting team. "It is not about winning or losing, but the fact that the judge had drawn attention to shoddy investigative work and thrown out cases even before the accused is called to make his defence should have sound the alarm bell because it undermines the confidence Malaysians have on the ability of the police to solve crime and of the prosecutors to put the right people behind bars."
Brendan Periera was referring to the case of the murder of Noritta Samsuddin where the accused, Hanif Basree was acquitted after a long-drawn trial, completed with conspiracy theories and salacious details. The high court had ruled that there was no prima facie evidence made out by the prosecution. The Appeal Court had blamed poor police investigations. To establish that a prima facie case had been made out, the prosecution had to prove that death had occurred, that the accused was responsible for the death of the victim, and that the act was done with the intention of causing death. The Court of Appeal had found that the prosecution had only prove that Noritta was dead.
In the case of the murder of Datuk Norjan Khan Bahadar, the prosecution argued that the accused, Azman Bakar, had killed Norjan because he was jealous of seeing her with another man. For that motive to be established, it had to be proved that Azman actually knew Norjan and the prosecution had failed to establish this fact.
The third case is the Koh Kim Teck, Najib and Resty Agpalo for the murder of Xu Jian Huang; the results are as stated aboved.
“We’ve gone through 39 witnesses and have been waiting for 2 ½ months for the evidence to come out to implicate these accused, and there was none,”
- Agpalo’s counsel, Kamarul Hisham Kamaruddin remarked.
“The prosecution cannot keep having cases like this thrown out. It does not look good. The judgment of the judge is inspiring and I hope at the end of the day, it will send a message to the Public Prosecutor that there is a lot to be done in order to change the way things are done in this country.”
- Gobind Singh Deo, the counsel for Najib retorted.
“We will refer the matter to the Attorney-General’s Chambers to determine whether an appeal will be filed.”
- Deputy Public Prosecutor Ishak Yusof said.
It is a general principle of criminal law that a person may not be convicted of a crime unless the prosecution have proved beyond reasonable doubt that the accused caused a certtain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbidden by criminal law, and that the accused had a defined state of mind in relation to the causing of the event or the existence of the state of affairs.
The event or the state of affair is called 'Actus Reus' and the state of mind the 'mens rea' of the crime.
In the terminology used by Glanville Williams:
"Actus Reus includes ... the absence of any ground of justification or excuse, whether such justification or excuse be stated in any statute creating the crime or implied by the courts in accordance with general principle ..."
In the view of D.J. Lanham:
"As a matter of analysis we can think of a crime as being made up of 3 ingredients - actus reus, mens rea, and (a negative element)absence of a valid defence."
If the actus reus of a particular crime does not exist or occur, then a crime is not committed. The actus reus required for a murder charge are that the accused had committed an act which was unlawful and was the cause of death; that the act was voluntary; the act was factual and was the legal cause of death; that the act was substantial and operative cause of the death; and the chain of causation was not broken by an intervening event.
The literal meaning of Mens Rea means "a guilty mind". Mens rea mean the state of mind, intention or recklessness, required by the particular crime and 'negligence' to describe failures to comply with a standard of conduct.
It is however difficult to separate the actus reus from mens rea. Without that mental element (mens rea), the actus reus simply cannot exist. Actus reus is not merely an act. it may indeed consist in a 'state of affairs'. Often, the actus reus requires proof of an act or an omission (conduct) of a particular result. In murder, it must be shown that the accused's conduct caused the death.
The prosecution in this case had anchored on the notion of a motive that Jian Huang was tortured and then murdered for stealing $30,000 belonging to Datuk KT Koh. The defence lawyers argued that the boy's death was accidental.
The judge enunciated that it was vital for the prosecution to show there was "common intention" and "joint liability in doing the criminal act" since the three accuse had been jointly charged with murdering Xu Jian Huang. The judge said he had dissected all the relevant evidence and could not find any evidence of a common intention.
According to the judge, the prosecution had failed to call investigating officer, Inspector Moin to give an update on the status of his investigation on the theft of $30,000. "Not doing so has gravely destroyed the prosecution's case." The judge also noted that he could not admit a caution statement by witness Mohd Razbean Md Tab, Koh's driver, who was missing since the trial began. Razbean had said in his caution statement that he saw Agpalo and Najib throw Jian Huang into the swimming pool.
Hafiz Yatim and Fay Angela of NST raised some vexing questions: "Why was police investigation so weak and porous? Are our police incapable and incompetent to meet the exacting standards expected by the courts?"
In the view of Brendan Pereira, "Someone needs to be concerned" over the fact that 3 high profile murder cases have resulted in stunning defeats for the prosecuting team. "It is not about winning or losing, but the fact that the judge had drawn attention to shoddy investigative work and thrown out cases even before the accused is called to make his defence should have sound the alarm bell because it undermines the confidence Malaysians have on the ability of the police to solve crime and of the prosecutors to put the right people behind bars."
Brendan Periera was referring to the case of the murder of Noritta Samsuddin where the accused, Hanif Basree was acquitted after a long-drawn trial, completed with conspiracy theories and salacious details. The high court had ruled that there was no prima facie evidence made out by the prosecution. The Appeal Court had blamed poor police investigations. To establish that a prima facie case had been made out, the prosecution had to prove that death had occurred, that the accused was responsible for the death of the victim, and that the act was done with the intention of causing death. The Court of Appeal had found that the prosecution had only prove that Noritta was dead.
In the case of the murder of Datuk Norjan Khan Bahadar, the prosecution argued that the accused, Azman Bakar, had killed Norjan because he was jealous of seeing her with another man. For that motive to be established, it had to be proved that Azman actually knew Norjan and the prosecution had failed to establish this fact.
The third case is the Koh Kim Teck, Najib and Resty Agpalo for the murder of Xu Jian Huang; the results are as stated aboved.
“We’ve gone through 39 witnesses and have been waiting for 2 ½ months for the evidence to come out to implicate these accused, and there was none,”
- Agpalo’s counsel, Kamarul Hisham Kamaruddin remarked.
“The prosecution cannot keep having cases like this thrown out. It does not look good. The judgment of the judge is inspiring and I hope at the end of the day, it will send a message to the Public Prosecutor that there is a lot to be done in order to change the way things are done in this country.”
- Gobind Singh Deo, the counsel for Najib retorted.
“We will refer the matter to the Attorney-General’s Chambers to determine whether an appeal will be filed.”
- Deputy Public Prosecutor Ishak Yusof said.
1 comment:
God is watching
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