PUTRAJAYA: The Court of Appeal today upheld the 36 years in jail and 12 strokes of the rotan each meted out to two sets of brothers and an unemployed man for the murder of a man with swords nine years ago.
Justice Azman Abdullah said the lengthy custodial sentences imposed by the High Court on Zahaman Fairol Awang, 39, and his brother Rizalman, 37; Uwais Mat Nawi, 31, and his brother Hafify, 30; and Aizz Amidie Aziz, 30, were appropriate as the offence involved a high degree of violence.
“The appeal against conviction and sentence is dismissed as it lacks merit,” said Azman, who sat with Justices Hayatul Akmal Abdul Aziz and Radzi Abdul Hamid.
The five men were found guilty of murdering Sharulanuar Nek Der in an open space in Kampung Pengkalan Nyireh, Kampung Raja, Besut, Terengganu, on June 21, 2017.
On May 9, 2024, High Court judge Abdul Wahab Mohamed sentenced them after hearing testimony from 23 prosecution witnesses and 11 defence witnesses.
Following amendments to the law in 2023, the court may sentence an accused either to death or to imprisonment of between 30 and 40 years.
It is also mandatory for male offenders below the age of 50 to receive a minimum of 12 strokes of the rotan.
Justice Azman said the bench was of the view that the refusal of a key prosecution witness, identified as UPS1, to answer questions during cross-examination did not affect the prosecution’s case.
“UPS1 has the right to refuse to answer any question that might expose his identity,” he said.
During the trial, an inquiry was held under Section 265A of the Criminal Procedure Code to determine whether the witness’s identity should be protected.
The trial judge ruled that the identities of the witnesses, including UPS1, need not be disclosed.
However, the defence argued that UPS1’s identity was crucial as he was the eyewitness who allegedly saw the five men attacking the victim with swords.
The defence said the 58 questions posed to UPS1 were intended to test his credibility.
Justice Azman said the trial judge, having had the benefit of observing the witnesses through audio and visual means, was in a better position to assess their demeanour and determine credibility.
He added that the defence’s claim that the appellants did not receive a fair trial, allegedly in violation of Articles 5 and 8 of the Federal Constitution, was without merit.
“Justice must be accorded not only to the accused but also to the victim and society,” he said.
Azman said the trial judge had considered the defence put forward by the appellants and found it to be an afterthought and a fabrication.
“They failed to raise a reasonable doubt in the prosecution’s case,” he added.
Lawyer Hisyam Teh Poh Teik, representing the appellants, sought the minimum sentence of 30 years’ imprisonment, arguing that they were young offenders who had been in custody since their arrest in 2017.
However, deputy public prosecutor Zain Ibrahim submitted that the High Court’s decision should be upheld, as the deceased had suffered multiple serious injuries and died shortly after the attack.
“This court must send a strong message to society at large and would-be offenders that violent crime will not be condoned,” said Zain, who was assisted by Soleha Noratikah Ismail.
Hisyam, who was assisted by Kee Wei Lon and Siti Summaiyah Ahmad Jaafar, said he had instructions to file an appeal to the Federal Court.
