KUALA LUMPUR, March 1 — Six former Universiti Pertahanan Nasional Malaysia (UPNM) students who were previously convicted for murdering Navy Cadet Officer Zulfarhan Osman Zulkarnain in 2017 will no longer meet the hangman.
Instead, the Federal Court decided to reduce their original death sentences to 18 years in prison.
Before going into the top court’s reasons, here’s a quick refresher of what the case was all about up to yesterday’s decision.
Who are the six who won their appeal against their death sentence?
The six accused persons (OKT, Bahasa Malaysia for Orang Kena Tuduh) were Zulfarhan’s fellow students: Muhammad Akmal Zuhairi Azmal (OKT1), Muhammad Azamuddin Mad Sofi (OKT2), Muhammad Najib Mohd Razi (OKT3), Muhammad Afif Najmudin Azahat (OKT4), Mohamad Shobirin Sabri (OKT5), and Abdoul Hakeem Mohd Ali (OKT6).
Key facts about Zulfarhan’s torture and death in 2017
- Zulfarhan was accused of stealing OKT1’s laptop, but never admitted stealing it despite torture.
- OKT1 admitted having no proof (apart from a student’s bomoh father having said Zulfarhan took it) and that no one showed proof while Zulfarhan was being beaten up.
- Zulfarhan was tortured at UPNM’s Jebat hostel block at the Perdana Sungai Besi camp, Kuala Lumpur on three occasions:
(a) May 21 (between 2.30am to 5.30am), only had pants on while hit by multiple persons in room 3-05;(b) May 22 (between 1.30am to 4.30am), only had boxer shorts on while being hit by multiple persons in room 4-10;(c) May 22 (between 4.45am to 5.45am), while his hands and legs were tied, OKT1 to OKT5 pressed a hot iron on his body after OKT6 gave instructions in room 4-10.
May 27 and May 31 — Accused persons took Zulfarhan to a private clinic in Bangi. On both visits, the doctor treated wounds and twice wrote a referral letter for him to be sent to Hospital Serdang. The accused persons did not take Zulfarhan to the hospital.
June 1 — Zulfarhan was taken to Hospital Serdang where he was pronounced dead. He would have turned 21 later that same year.
Quick facts about the criminal case at the High Court
In 2017, OKT1 to OKT5 were charged with murdering Zulfarhan under Section 302 and under Section 34 of the Penal Code while OKT6 was charged with abetting the murder.
On November 2, 2021, the High Court found the first five OKTs guilty under Section 304(a) of the Penal Code for the lesser crime of culpable homicide not amounting to murder. OKT6 was found guilty of abetting the five.
The High Court sentenced all six to 18 years’ jail from the date of their arrest.
What happened at the Court of Appeal
On July 23, 2024, a three-judge panel unanimously agreed with the High Court that OKT 1 to OKT 5 were guilty of murdering Zulfarhan under Section 302 of the Penal Code, and that OKT6 was guilty of abetment. All six were given the death sentence at this point.
Here’s a summary of the Court of Appeal’s decision.
Now, the Federal Court
On February 28, another three-judge panel at the country’s highest court – comprising Chief Judge of Malaya Datuk Seri Hasnah Mohammed Hashim and Federal Court judges Datuk Nordin Hassan and Datuk Abdul Karim Abdul Jalil – unanimously chose to revert to the original High Court sentence for the six.
Here are their reasons.
The Federal Court decided that the six could not be convicted of murdering and abetting Zulfarhan’s murder as these offences were not proven beyond reasonable doubt.
Instead, the judges said the evidence is sufficient to convict them under the lesser crimes of commiting and abetting in the crime under Section 304(a) of the Penal Code.
The Federal Court’s decision yesterday was mainly related to Section 300(c) of the Penal Code, where culpable homicide is murder “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 cause of nature to cause death”.
Why is Section 300(c) important?
It is used to decide whether the act of causing someone’s death was actually murder or not.
This makes all the difference in the penalty upon conviction, as murder (under Section 302) has heavier penalties (death sentence or the alternative sentence of between 30 to 40 years’ jail and at least 12 strokes of whipping) when compared to the Section 304(a) offence (a maximum 30 years’ jail and fine).
The Federal Court said what the prosecution needs to prove in order to use Section 300(c) in Zulfarhan’s case are three elements: a) there were injuries on his body; b) the accused persons intentionally caused that injury; c) and that injury is ordinarily sufficient to cause death.
The Federal Court said the prosecution succeeded in proving the first two elements of Section 300(c).
Among other things, this was because of two eyewitnesses’ court testimonies as the 24th and 25th prosecution witnesses that the first five OKT had intentionally caused injury by pressing an iron on Zulfarhan’s body.
The Federal Court pointed out that the High Court had these two witnesses to be “credible” witnesses, and that the High Court’s findings were supported by other evidence in court.
The Federal Court also noted that the common intention provision under Section 34 allows all the accused persons to be convicted of the same offence of murder, even if it cannot be determined how many injuries were inflicted by each accused person or if there were any accused person who had only caused one injury or only pressed the iron once on Zulfarhan.
So that was why the Federal Court said the first two elements of Section 300(c) were proven.
The Federal Court said the prosecution did not prove the third and final element of Section 300(c).
During the trial, medical forensic expert Dr Salmah Arshad from Hospital Serdang who had on June 2 conducted the autopsy on Zulfarhan’s body, agreed with the prosecution that the 90 burn wounds covering 80 per cent of his body could ordinarily cause death. Dr Salmah was the sixth prosecution witness.
The Federal Court said it had to look at Dr Salmah’s entire testimony and all other relevant evidence, in order to determine whether it was proven that the injuries on Zulfarhan were ordinarily sufficient to cause death.
During cross-examination by the defence, Dr Salmah agreed that burns covering 30 per cent to 50 per cent of a victim’s body can cause death but also may not necessarily result in death, if sufficient and appropriate treatment is given.
The Federal Court said the prosecution did not ask Dr Salmah again about this point during re-examination.
The Federal Court judges also considered the fact that forensic expert Dr Rohayu Shahar Adnan’s court testimony as the 19th defence witness had disputed Dr Salmah’s findings.
“In line with that, based on the analysis of the evidence as a whole, we find that the element of injury on the victim that ordinarily causes death cannot be proven beyond reasonable doubt. Furthermore, the victim died 10 days after the incident,” the Federal Court said.
The Federal Court concluded that the prosecution could not use Section 300(c) to prove the offence of murder in Zulfarhan’s case, and set aside the Court of Appeal’s convictions for murder and abetting of murder on the six.
But since there was sufficient evidence for the Section 304(a) offence, the Federal Court restored the High Court’s decision as well as the High Court’s sentence of 18 years’ jail from the date of arrest for all six.
What’s next for the six?
All the six former UPNM students were aged 21 the year Zulfarhan died, and are either already or will be turning 29 this year.
As the 18-year jail term runs from the date of their arrest in June 2017, this means that their jail term is until 2035.
But if they display good behaviour as prisoners, the six will be eligible – like all other prisoners under Section 44 of the Prison Act 1995 – for a one-third remission or reduction of their jail time, and would only be jailed for 12 years.
This means the six could be released from prison in 2029, which is four years away, if they show good behaviour. They would be aged 33 in 2029.