案情

  1. 被告人(丈夫)和受害人(太太)是夫妻。
  2. 太太在马来亚大学医学中心(UMMC)生下了她的女儿。当太太在UMMC的儿童病房时,丈夫来到病房探望女儿。 太太和丈夫发生了口角。
  3. 在争吵期间,丈夫表示他想跟太太离婚,并且会争取孩子的监护权。 太太反对,理由是丈夫是吸毒成瘾者和施虐者。丈夫听了情绪失控,结果挥拳往太太的脸拳击了两次和往脸颊拳击了一次。当太太说要报警时,丈夫继续往太太的鼻子和嘴巴打下去。
  4. 这些袭击,最终导致太太的鼻骨骨折和移位。
  5. 太太对丈夫的行为报警。丈夫后来被捕并被起诉。
  6. 丈夫在刑事法典第325和326A条文下被提控。
  7. 丈夫提出,案发时间,除了在病房接受治疗的儿童外,没有成年人目击证人,因为当事件发生时,窗帘是关闭的。
  8. 丈夫供证,他当时没有拳击太太,但他曾多次掌刮太太的脸。

 

法庭判决

  1. 法律没有强制要求受害人的证据必须有其他证人在场证实,只要本法院接受受害人证据的真实性,就足够了。
  2. 本法院认为必须权衡证据,而不是计算有多少证据。只要证人提供的证据具有真实性,有说服力,可信度和可信度,那就足够了。
  3. 在听取证据后,本法院接受太太证据的真实性有两个原因。首先,太太提交了一份警方报告,太太提供的证据与提交的警方报告一致。其次,主控官呈上太太接受治疗前的的照片。看着这些照片,法庭发现受害者在照片中的面部,脸颊,鼻子和嘴巴受到的伤害与太太在法庭上提供的证据一致。因此,这个法院认定太太是一个真实的证人,检方已经确定丈夫对太太造成了伤害。
  4. 在325条文下,一旦罪成,将被判处不超过7年监禁和罚款。在326A条文下,一旦罪成,将被判处双倍325条文的判决。
  5. 法院判处丈夫3年徒刑, 判刑从判刑日开始。

 

Facts:

  1. The accused (A) and the victim (V) are husband and wife.
  2. V gave birth to her daughter at at University of Malaya Medical Center (UMMC). While V was in the Children’s Ward of UMMC, A came to the ward. A and V had a quarrel.
  3. During the quarrel, A stated that he wanted to divorce V and to get custody of their child. V objected on the basis that A is a drug addict and an abuser. A lost his temper and punched her twice on the face and once on the cheek. Then A continued to punch V on her nose and her mouth when she stated that she wanted to lodge a police report.
  4. The attack eventually caused V to sustain an un-displaced nasal bone fracture.
  5. W lodged her police report against A. A was subsequently arrested and charged in court.
  6. A was charged under section 325 read with section 326A of the Penal for voluntarily causing grievous hurt to his own wife (V).
  7. A argued that there was no adult eye witnesses to what occurred during the material time, except children who were undergoing treatment in the ward, as the curtain was drawn closed when the incident happened。
  8. A testified that he did not punch V, but he had slapped V’s face multiple times.

 

Court held:

  1. There is no mandatory requirement for the victim’s evidence to be corroborated, and as long as this court accepts the truth of the victim’s evidence, it is enough.
  2. This court is of the view that evidence must be weighed and not counted. As long as the evidence given by the witness has a ring of truth, is cogent, credible and trustworthy, then it is sufficient.
  3. After hearing the evidence, this court accepts the truth of V’s evidence for two reasons. First, V had lodged a police report, and the evidence given by V was consistent with the police report lodged. Second, the prosecution had tendered the photos of V taken before she was treated by the medical personnel to support V’s evidence. Looking at the photos, this court finds that the injuries suffered by the victim on the face, cheek, nose and mouth in the photos were consistent with the evidence given by V in court. Thus, this court finds that V is a truthful witness and the prosecution had established that A caused hurt to V.
  4. The Court sentence A to 3 years’ imprisonment commencing from the date of sentence.

 

Additional Facts

  1. To establish the charge under Section 325/326Aof the Penal Code, the prosecution has to prove beyond reasonable doubt these ingredients:

(a) The accused caused hurt to his spouse or former spouse, a child, an incapacitated adult or other member of the family;

(b) The hurt caused was ‘grievous’ as specified in Section 320;

(c) The accused intended to cause or knew that he was likely to cause grievous hurt; and

(d) The accused caused the hurt voluntarily.

Grievous

  1. The prosecution has to prove that the hurt caused was ‘grievous’ as defined Section 320 of the Penal Code. The following kinds of hurt are deemed ‘grievous’ under Section 320 of the Penal Code:

(a)emasculation;

(b)permanent privation of the sight of either eye;

(c)permanent privation of the hearing of either ear;

(d)privation of any member or joint;

(e)destruction or permanent impairing of the powers of any member or joint;

(f)permanent disfiguration of the head or face;

(g)fracture or dislocation of a bone;

(h)any hurt which endangers life, or which causes the sufferer to be, during the space of ten days, in severe bodily pain, or unable to follow his ordinary pursuits.

  1. The prosecution called Dr. Athirah binti Abdul Wahid (PW3), the medical doctor from UMMC who had examined the victim at the hospital to prove that the hurt caused to the victim was ‘grievous’. PW3’s evidence shows that there was a fracture of the nasal bone.
  2. Therefore, this court finds that the injuries suffered by the victim fall under Section 320(g) of the Penal Code. Thus, the prosecution had successfully proved the crucial element of ‘grievous hurt’ under Section 325 of the Penal Code.

 

Length of the Sentence depends on the Seriousness of the Injury

  1. Section 325 of the Penal Code carries a punishment of imprisonment which may extend to 7 years, and the offender shall also be liable to fine. Section 326Aof the same Code provides for an imprisonment for a term which may extend to twice of the maximum term for which he would have been liable on conviction for the offence under Section 323, 324, 325 0r 335 notwithstanding any other punishment provided for that offence.
  2. Section 326 of the Penal Code was introduced to provide adequate protection against domestic violence, and to deter such abusive behaviour by increasing the maximum punishment for domestic violence offences. Reading Section 325 and section 326Aof the Penal Code, the court has a discretion in deciding on the length of the term of imprisonment up to 14 years.
  3. The punishment of offenders in the cases prosecuted under Section 325 should also depend on the seriousness of the injury.
  4. In this case, the victim suffered undisplaced nasal bone fracture. She did not suffer any form of permanent disability or scarring from the attacks. The injuries sustained did not endanger the life of the victim. Hence, this court opines that the imposition of a more lenient term of imprisonment can be considered.

 

Penal Code

325.Punishment for voluntarily causing grievous hurt

Whoever, except in the case provided by Section 335, voluntarily causes grievous hurt, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine.

 

326A.Punishment for causing hurt to spouse, former spouse, etc.

(1) Whoever causes hurt to his spouse or former spouse, a child, an incapacitated adult or other member of the family and commits an offence under section 323, 324, 325, 326, 334 or 335 shall be punished with imprisonment for a term which may extend to twice of the maximum term for which he would have been liable on conviction for that offence under the relevant section notwithstanding any other punishment provided for that offence.

(2) For the purpose of this section, “spouse”, “child”, “incapacitated adult” and “other member of the family” have the meanings assigned to them in section 2 of the Domestic Violence Act 1994 [Act 521]

 

Source: Public Prosecutor v NMF [2018] MLJU 1115

 

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