Take the circumstances
in the Sunny Ang case in the context of the Malaysian Penal Code and judiciary
system as it is today. Would the decision have been similar?
If we properly
scrutinize the decision of Sunny Ang, it is clear that there is one missing
element of murder i.e., death. There was no prove that the accused’s
girlfriend, Jenny Cheok died. She had merely been missing after the couple’s
scuba diving trip in the straits between Sisters’ Island. Her dead body was
never found.
The unanimous decision
to sentence the accused to death was made in the High Court, by a seven-man jury. It must be noted that juries are laymen, and if not properly guided by the counsels or court, would most likely be guided by emotions of their own. The accused went on to appeal against the decision of the High Court at the
Federal Court and the Privy Council but both applications were rejected.
The Federal Court ruled
that the incident was not a mere accident. This is true, for the circumstances,
when roped together, would clearly show the intention to cause death on the
part of the accused.
One of the contentions
for the appeal was that the trial judge erred in law in failing to direct the
jury on a possible verdict of culpable homicide not amounting to murder. Learned
judge also went on to state that it was not necessary to give that direction to
the jury and that the case was one in which the appellant was either guilty of
murder or not guilty of any offence whatsoever. Question: Could attempt to murder be a more suitable charge? (See S307 Penal Code, particularly illustration b).
Illustrations (a) to
(d) of S300 of the Penal Code contains the element of death of a victim as a consequence of acts
of an accused. The opening words of S299 of the Penal Code reads “whoever causes death”. Death
appears to be a necessary element. Without the death of Jenny Cheok, all the
other evidences could only have proven intention to murder. The acts of
preparing to cause death alone should not have been sufficient to convict the
accused of murder.
In a nutshell, the
decision could have been different if the sentence was not made by a seven-man
jury. They ought to have been informed of the ingredients/elements of murder
before they decided to sentence the accused to death.
