The death sentence handed to a Nigerian national, Alowonle Oluwajuwon Gilbert, in Malaysia has been overturned by the Court of Appeal on Wednesday, August 9, 2023.
Gilbert was instead sentenced to 35 years imprisonment and will also receive 12 strokes of the cane for the murder of a chief nurse at Serdang Hospital.
On August 4, 2021, the high court in Shah Alam found Gilbert guilty of murdering Siti Kharina Mohd Kamarudin, at a condominium unit at Third Avenue Condominium in Cyberjaya between 12.41am on May 9 and 2.30pm on May 15, 2019, and sentenced him to death.
A three-member panel of the Court of Appeal in Putrajaya, comprising justices Datuk Vazeer Alam Mydin Meera, Datuk Ahmad Zaidi Ibrahim, and Datuk S.M. Komathy Suppiah, also ordered Alowonle Oluwajuwon Gilbert to be punished with 12 strokes of the cane.
The 40-year-old man was ordered to start his jail sentence from the date of his arrest, which was May 16, 2019.
Justice Vazeer, when delivering the court’s unanimous decision, said the bench dismissed Gilbert’s appeal against the murder conviction on the ground that his conviction for murdering Siti Kharina Mohd Kamarudin was safe to be upheld.
He said there was no need for the court to consider whether other statutory defences applied to Gilbert, as the trial judge had rejected his (Gilbert’s) defence of alibi.
The appellate court also did not find any of the statutory defences applied to Gilbert, he added.
On the sentence, Justice Vazeer said there was also no suppression of evidence by the prosecution in not providing the entire recordings of a closed-circuit television camera (CCTV) at the Third Avenue Condominium in Cyberjaya, for the days after the incident, to the defence.
If the recording was essential for the defence case, Gilbert should have made an application for it to be produced, he added.
However, he said that following an amendment to Section 302 of the Penal Code, the court agreed with Gilbert’s counsel, Afifuddin Ahmad Hafifi, that the death sentence ought to be commuted to imprisonment based on the circumstances and facts of the case.
“We set aside the death sentence and substituted it with 35 years in jail from the date of arrest, and he would also be punished with 12 strokes of the whip,” he said.
Earlier in the proceedings today, Afifuddin said Gilbert and the deceased were lovers and were living together.
He said there was no evidence that the murder was pre-meditated and given that Gilbert’s blood was found on his clothing and at the crime scene, a sudden fight could have taken place between his client and the deceased.
He said the trial judge was empowered to convict Gilbert on a lesser charge, such as committing culpable homicide that did not amount to murder.
Deputy public prosecutor P. Sarulatha submitted that the trial judge did not need to consider other statutory defences as Gilbert had opted for an alibi defence.
There was also no necessity to provide the full CCTV recordings as there was no movement in the condominium area after the incident, she added.
