Court finds no prima facie of murder against former cop who shot dead colleague

The High Court here Tuesday ordered a lighter sentence for the former policemen who shot dead his colleague in 2021 because the prosecution did not establish a prima facie case of murder under Section 302 of the Penal Code.

Judge Datuk Christopher Chin said the testimony of witnesses, especially the investigating officer, was unequivocal in that Mohamad Nur Alif Mazlan, 30, had no intention or motive to kill Norhalim Tumiran.

Based on the given facts and the law enlightened by the illustration given in Section 300(d) of the Penal Code, Chin said he was satisfied that Mohamad Nur Alif had no knowledge that the gun would fire if the trigger was pulled.

The facts Chin found include Mohamad Nur Alif had no prior training on the use of the particular semiautomatic Walther P99 handgun while being trained to be a policeman; he was on his first posting after just completing police training as a fresh police recruit and was trained to use the older .38 Smith and Wesson handgun; he had requested for a .38 Smith and Wesson from the armoury but as none was available was issued the Walther P99 semiautomatic handgun instead; he had inadequate or no practical training on the handgun at the time he was issued with it; he was unaware that even with the magazine for the Walther P99 handgun removed, there was still the possibility of a live round present in the firing chamber of the gun; Norhalim had requested to see the gun, as understandably all of them staying in that fateful house were freshly minted police officers who had never handled such a handgun; and critically, owing to lack of training, Mohamad Nur Alif did not know that even after he had removed the magazine from the gun, there was still a bullet in the firing chamber.

“Based on the above, I am satisfied that the accused had no knowledge that the handgun in his hand, on that fateful evening, would fire if the trigger was pulled.

“I make this decision based on the facts as well as the law, enlightened by the illustration given in the Penal Code in relation to Section 300(d),” Chin said in his grounds for sentencing.

Under such sub-section, while intention or motive need not be present, it must be proven that the accused had knowledge, knowledge of the imminent danger and, in this case, he said Section 300(d) had not proven beyond reasonable doubt.

“In conclusion, and after a maximum evaluation of the facts of this case, I find that prima facie case of murder punishable under Section 302 of the Penal Code has not been made out against the accused, and he is accordingly discharged and acquitted on the charge against him.

“However, I find that no one should ever point a pistol at another person, regardless of whether the gun was loaded or not.

“The actions of the accused were negligent, and uncalled for and extremely reckless, especially since he had some training in handling of guns.

“I therefore find that a prima facie case has been made out against the accused under Section 304A of the Penal Code for causing death through negligence and call for him to enter upon his defence on this reduced charge which I now amend to,” Chin said.

Mohamad Nur Alif then pleaded guilty to the reduced charge and was sentenced to two years’ imprisonment term and fined RM10,000 in default six months in prison.

Chin passed the sentence after taking the usual considerations for sentencing such as public interest, a deterrent sentence, and that a life was taken, as well as the mitigation by the accused and observations of the deputy public prosecutor.

Additionally, the judge urged the police to seriously and urgently reconsider protocols and standard operating procedures in the issuance of weapons to personnel.

“The accused was trained as a fresh police recruit, barely weeks before the incident in the use of the police’s standard .38 Smith and Wesson handgun, but was instead issued in Sibu with the modern Walther P99 semiautomatic pistol.

“In so doing, I find that the police were, in this case, equally if not more negligent in issuing to the accused a handgun which the accused was not trained to handle,” he said.

Furthermore, Chin said the handgun was issued to the accused by the armoury in Sibu without adequate or no practical instructions.

He said there was evidence that this was not the first such accident in Malaysia, which by itself is alarming.

Mohamad Nur Alif caused the death of Norhalim, 25, on May 6, 2021 between 5.45pm and 6.30pm at a house at Lorong Permai Timur 9.

Mohamad Nur Alif was represented by defence counsel Ranbir S Sangha, while deputy public prosecutor Mark Kenneth Netto prosecuted the case.

Throughout the trial, 17 prosecuting witnesses were called.