Lawyer Datuk Seri Gopal Sri Ram submitted before the Federal Court five-man bench that the wrong provision was applied by the Federal Court earlier bench to convict and sentence Fong Kong Meng and his wife Teoh Ching Yen for culpable homicide not amounting to murder.
He said the appropriate sentence would be under section 304 (b) of the Penal Code which provided a maximum 10 years jail term and not under section 304 (a) of the Penal Code which was punishable to 30 years jail.
“The jail sentence is illegal and contrary to the law,” said Sri Ram, adding that the jail term had caused injustice to the couple.
Sri Ram who was assisted by counsel Hisyam Teh Poh Teik said his clients' case fell under section 304 (b) as their action in committing the offence was done without any intention to cause death.
He said the prosecution had relied on section 300 (d) of the Penal Code to prove their case for murder and the High Court had also relied on the same section when sentencing the couple to death for murder.
Section 300 (d) applies to cases where the accused persons were shown not to possess the intention to cause specific bodily injury leading to death.
The couple filed an application to review the decision of the Federal Court on April 4 last year, and for an order that their conviction and sentence under section 304 (a) be set aside and substituted with a sentence under section 304 (b) of the Penal Code.
Fong, 63, a former wiring consultant and Teoh, 61, a housewife were initially convicted and sentenced to death by the High Court for the murder of Isti Komariah, 26, at a house in Jalan SS 2/6, Sea Park in Petaling Jaya, Selangor between May 14, 2010, and June 5, 2011.
The Court of Appeal had upheld the High Court decision.
Last year, the Federal Court five-man bench amended their charge to culpable homicide not amounting to murder under section 304 (a) and sentenced them to 20 years jail, to run from the date they were remanded on June 5, 2011.
In today's proceedings, deputy public prosecutor Tetralina Ahmed Fauzi argued that application for review under Rule 137 of the Rules of the Federal Court 1995 is only applicable in rare and special circumstances and the applicants did not meet the threshold requirement.
She said the sentence meted out on Fong and Teoh were according to the law.
Chief Judge of Sabah and Sarawak Datuk Seri David Wong Dak Wah who chaired the bench deferred the court's decision to a date yet to be fixed.