Ahmad Bohari Bin Mohamad Noor v Pendakwa Raya (W-05(SH)-394-08/2017)

Page 1 of 16 IN THE COURT OF APPEAL AT PUTRAJAYA CRIMINAL APPEAL NO: W-05(SH)-394-08/2017

1. AHMAD BOHARI BIN MOHAMAD NOOR (PASSPORT NO: 651126-04-5423)

2. MUHAMMAD HAIRE BIN AHMAD BOHARI (PASSPORT NO: 931216-14-6267) APPELLANTS RESPONDENT Heard Together With CRIMINAL APPEAL NO: W-05(SH)-382-08/2017 AHMAD SAIPUNIZAM B. MOHD PIRUS APPELLANT RESPONDENT CRIMINAL APPEAL NO: W-05(SH)-383-08/2017 APPELLANT

1. ATAN BIN MD SHAH

2. SUHAIMI BIN ATAN RESPONDENTS Page 2 of 16 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR CRIMINAL TRIAL N0. 45B-48-9/2016

1. AHMAD BOHARI BIN MOHAMAD NOOR (PASSPORT NO: 651126-04-5423)

2. AHMAD SAIPUNIZAM BIN MOHD PIRUS (PASSPORT NO: 811113-11-5491)

3. MUHAMMAD HAIRE BIN AHMAD BOHARI (PASSPORT NO: 931216-14-6267)

4. ATAN BIN MAD SAH (PASSPORT NO: 671229-01-6033)

5. SUHAIMI BIN ATAN (PASSPORT NO: 930313-14-6037) CORAM MOHTARUDIN BIN BAKI, JCA ABDUL KARIM BIN ABDUL JALIL, JCA STEPHEN CHUNG HIAN GUAN, JCA JUDGMENT OF THE COURT The Appeals [1] The five accused were initially charged for an offence for murder under section 302 of the Penal Code. After calling seven witnesses, the prosecution amended to reduce the charge from murder to culpable homicide under section 304(a) of the Penal Code. The amended charge reads as follows: Page 3 of 16 “Bahawa kamu bersama-sama pada 14/4/2016 di antara jam lebih kurang 11.40 malam sehingga 15/4/2016 jam 1.30 pagi bertempat di PPR Kg. Limau, Pantai Dalam dalam Daerah Brickfields, dalam Wilayah Persekutuan Kuala Lumpur telah melakukan perbuatan yang menyebabkan kematian terhadap Liew Han Yuen No. KP : 680418-10- 5865 dengan niat hendak menyebabkan kematian, dan dengan itu kamu telah melakukan kesalahan mematikan orang dengan salah yang tidak terjumlah kepada kesalahan membunuh dan boleh dihukum di bawah Seksyen 304(a) Kanun Keseksaan dibaca bersama Seksyen 34 Kanun yang sama.” [2] After the trial the learned trial judge convicted the 1st, 2nd and 3rd accused for the offence under section 304(a) of the Penal Code read together with section 34 of the Penal Code and sentenced each of them to 22 years imprisonment from the date of arrest namely from 4th May 2016. The learned trial judge acquitted and discharged the 4th and 5th accused under the charge. [3] There were three appeals filed which were heard together before us. In these appeals, for ease of reference, the parties would be referred to as they were referred to in the court below namely, as the prosecution and accused. [4] In Appeal 394, the 1st and 3rd accused appealed against the decision of the learned trial judge. In Appeal 382, the 2nd accused appealed against the decision of the learned trial judge. [5] In Appeal 383, the prosecution appealed against the decision of the learned trial judge in acquitting and discharging the 4th and 5th Page 4 of 16 accused. At the commencement of the appeals the prosecution informed the court that it was withdrawing Appeal 383 against the 4th and 5th accused and Appeal 383 was accordingly struck out. Factual background of case [6] On 14.4.2016, at about 11.40 p.m., the deceased while driving a black Honda Accord motor vehicle along a road in PPR Kpg. Limau, Pantai Dalam nearly ran over some people sitting at food-stalls by the roadside and then collided into a Kancil motor vehicle parked at the roadside. The deceased did not stop and left the scene but subsequently returned to the scene. On seeing the Honda returning to the scene, those present chased after the Honda and the deceased who drove the vehicle to a nearby hardware store where he was assaulted. The area at the hardware store was dark except for a street lamp nearby. At the material time the deceased was intoxicated. [7] On information received of a criminal case, on 15.4.2016 at about 1.30 a.m. a police team arrived at the scene and found the deceased faced down on the back seat of the Honda vehicle with its right passenger door opened and back windscreen smashed. The body of the deceased was sent to a hospital. [8] SP10 carried out an autopsy on the deceased and prepared a post-mortem report which was tendered as exhibit P10. SP10 testified that he found 34 external injuries described as multiple impact abrasions, contusions and bruises on the head, face and neck of the deceased. The skull showed orbital bone fractures and the brain showed diffuse congestion and subarachnoid haemorrhage which was a consequence of injuries to the vertebral arteries associated with blunt Page 5 of 16 trauma to sides of the neck with haemorrhage extending to the base of brain resulting in rapid death. SP10 testified that the death was due to intracranial haemorrhage associated with left vertebral artery injury. The submission of the 1st and 3rd accused [9] Counsel for the accused persons submitted that the 1st accused was not seen in the crowd chasing after the deceased for nearly running over his daughter sitting by the roadside and failing to stop after knocking into the Kancil. It was submitted that when the deceased returned to the scene, the 1st accused never chased after the deceased to the hardware shop but continued working in his stall. It was submitted that there was no evidence that the 1st accused was angry and wanted to attack the deceased. [10] It was submitted that the acts of the 1st accused who was seen to have grabbed the front of the shirt of the deceased, kicked and then slapped the deceased's cheek asking the deceased to pay damages were not done with force or acts of violence against the deceased because the deceased did not scream or complain of pain but as spontaneous acts to alert the deceased who was drunk at the time. It was submitted that they were not intended to attack or cause injuries to the deceased. [11] It was submitted that the learned trial judge had misdirected himself and failed to properly evaluate the evidence of SP5, SP6, SP7, SP8 and SP9 that the 1st accused had 'sepak', 'lempang' and 'tampar' the deceased by failing to take into account the background, age, residence (flat PPR Kg Limau) of these witnesses and that these words used were in layman terms. Page 6 of 16 [12] It was submitted similarly that the 3rd accused had no intention and no reason to attack the deceased. It was submitted that the 3rd accused was not in the stall of his father at that time and never followed the angry crowd after the deceased collided into the Kancil. The 3rd accused also did not chase after the deceased when the deceased returned to the scene nor did he chase the deceased to the hardware shop. [13] It was submitted that the 3rd accused only went to the hardware shop to call the1st accused to go home as instructed by his mother and that when he went to the hardware shop the alleged assault incident against the deceased was already over and he saw that the deceased had fallen onto the ground. [14] It was submitted that the 3rd accused did not punch, hit and or kick the deceased and was not seen holding any weapon that could hurt the deceased. The submission of the 2nd accused [15] It was submitted that the location where the incident happened was dark and the witnesses could not see clearly who and what had happened and there were doubts on the identification of the accused persons. It was submitted that it was not safe to accept their identification of the accused. Counsel cited authorities in support of his submission. [16] Counsel for the 2nd accused submitted that there were material discrepancies in the evidence of the eye-witnesses because they gave different versions of what happened and questioned the credibility of Page 7 of 16 these witnesses. It was submitted that the learned trial judge had misdirected himself on the evidence and had erred in his findings of facts. [17] In respect of common intention, it was submitted that there was no communication between the accused to manifest a common intention to cause the death of the deceased. It was submitted that there was no prior meeting of mind and no pre-concert. It was submitted that although the 3rd accused was in the crowd, he did not take part in the assault. The Prosecution/Respondent’s submission [18] The prosecution submitted that on the evidence of SP5, SP6, SP7, SP8 and SP9, they saw the 2nd accused putting a "solex" key to the neck of the deceased and that SP7 saw him putting a gun-shaped lighter to the head of the deceased. It was submitted that these witnesses also saw the 1st accused punching and slapping the deceased and SP7 testified that he saw the 3rd, 4th and 5th accused were at the scene together with the 1st and 2nd accused. [19] It was submitted that although each of the accused acted separately in attacking the deceased, they were there together and with the intention to attack and taking revenge against the deceased. It was submitted that the five accused were charged jointly under section 34 of the Penal Code. All the prosecution witnesses had testified that they saw the 1st accused slapped the deceased while the 2nd accused put a motorcycle lock on the neck of the deceased which caused injuries resulting in the death of the deceased. Page 8 of 16 [20] It was submitted that although the prosecution witnesses did not see the 'force' used by the accused, the accused knew that their actions would cause death to the deceased and SP10 had testified that the cause of death was due to intracranial haemorrhage associated with left vertebral artery injury. It was submitted that their actions came within section 304(a) of the Penal Code. The decision of the court [21] Under section 299 of the Penal Code, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. In the two remaining appeals, the 1st to the 3rd accused were charged for culpable homicide not amounting to murder under section 304(a) of the Penal Code read together with section 34 of the same Code. The acts complained of under section 304(a) come under the first and second limbs of section 299 of the Code. [22] The two appeals by the 1st to 3rd accused concerned the evidence adduced and the findings of facts in the court below. Counsel for the accused submitted that the learned trial judge had misdirected himself on the evidence and failed to have a proper appreciation of the evidence adduced which resulted in his findings of facts and conclusions to be perverse requiring appellate intervention. We have read the very lengthy submissions by counsel for and on behalf of the accused persons and the unduly lengthy judgment of the learned trial judge citing long passages from his own book on criminal law. Page 9 of 16 [23] Counsel for the 2nd accused had referred to R v Turnbull (1976) 3 All ER 549; Duis Akim & Ors v PP [2013] 9 CLJ 692; Ong Teik Thai v PP [2017] 4 MLJ 421 and other authorities. Reading the record of appeal and the submissions, SP5, SP6, SP7, SP8 and SP9 resided in Kpg. Limau and were customers of the food-stalls in the kampung. At the material time SP5 to SP9 were at a burger stall, near to the stall operated by the 1st accused, when the deceased drove the Honda nearly running over some people seated at the food-stalls and collided into the Kancil and then returning to the scene. They had testified that they knew the accused persons. When someone shouted to chase after the Honda they followed the crowd to the hardware store. At the hardware store they saw the five accused person were present and that the 1st and 2nd accused had assaulted the deceased. SP5 to SP9 had identified the five accused in court. [24] Counsel did not seriously challenge the identification of the accused persons made by these five witnesses. Counsel did not contend that the identification was flawed because no identification parade was conducted. On evidence, there was nothing to suggest that they did not or could not identify the accused persons notwithstanding that the area at the hardware store was dark except for a street lamp and headlights from some motorcycles. SP5 to SP9 were able to and had correctly identified the accused. Counsel also did not seriously challenge the testimony and credibility of SP5, SP6, SP7, SP8 and SP9. [25] It is trite that the credibility of a witness is primarily for the trial judge. An appellate court will be slow to disturb with the findings of facts by the trial judge who had the audio and visual advantage of hearing Page 10 of 16 and watching the witnesses unless there are substantial and compelling reasons for disagreeing with the findings. There will always be discrepancies in the evidence of a witness or between witnesses, whether minor or material, and it is for the trial judge to determine as such and whether to accept or reject which part of the evidence: Lee Ah Seng & Anor v Public Prosecutor [2007] 6 MLJ 1. [26] SP5 to SP9 were onlookers among the crowd present at the hardware store where the deceased was attacked after he came out of the Honda. SP5 was about eight meters from the deceased. SP5 testified that he saw the 1st accused grabbed the shirt and neck of the deceased and heard the 1st accused asking the deceased to pay compensation and if the deceased refused, the 1st accused would bring the deceased to the police station to which the deceased replied ‘kalau you mahu panggil polis, panggil la’. He saw the 4th accused hit the left side of the head of the deceased and the 2nd accused used a chain-lock to wrap around the neck of the deceased asking the deceased to pay compensation. He said the deceased looked weak at that time. [27] When SP6 was at the food-stalls, he heard someone shouted to chase after the Honda. He went to the scene on his motorcycle and he saw the 1st and 2nd accused were at the scene. He saw the 1st accused slapped the right cheek of the deceased three times and the 2nd accused pointed an L-shape instrument at the chin of the accused. When he moved his motorcycle he saw the deceased had fallen onto the ground. [28] On that night SP7 was at the food-stalls together with SP5, SP6, SP8 and SP9 and he saw a black Honda vehicle collided with a Kancil Page 11 of 16 parked at the roadside. He heard someone shouted to chase after the Honda and they went in their motorcycles after the Honda which stopped at the hardware store. He saw the deceased came out and stood at the side of the Honda and the 1st, 2nd, 4th and 5th accused were at the scene. He heard someone asking the deceased to pay compensation and he saw the 1st accused slapped the deceased, the 2nd accused put the lock around the neck of the deceased and then pointed a lighter in the shape of a pistol at the head of the deceased. After that the 4th and 5th accused hit the deceased with their hands. He said the deceased fell on the ground and some people carried the deceased and put him on the backseat of the Honda. It was then he saw the 3rd accused at the scene. He said the 3rd accused did not do anything at the scene. [29] SP8 gave testimony about what happened that night. At the food-stalls he heard someone shouting to chase after the Honda. He said while standing at the side of the road intending to stop the Honda and seeing the Honda swerving as if the driver was drunk and driving in his direction, he took evasive action and used his motorcycle helmet to smash the rear windscreen of the Honda but it continued until it came to a stop at the hardware store. SP8 subsequently went to the hardware store and there was a crowd of noisy people. He saw the 1st accused slapped the cheek of the deceased and two or three others used their hands to hit the deceased and a youth stole something from the Honda. He then saw the 2nd accused drove the Honda to the stalls and then drove it back to the hardware store with the deceased in the backseat of the Honda where he was subsequently found by the police. It should be noted that although SP8 smashed the rear windscreen of the Honda, Page 12 of 16 the police did not charge him for smashing the windscreen nor for being involved in the offence under section 304(a) of the Penal Code. [30] SP9 gave similar testimony of what happened that night. SP9 followed the crowd to the hardware store where he saw the 1st accused hit the deceased and the 2nd accused pointed an instrument at the deceased, below the chin and he was not sure what type of instrument. He said he then received a phone call from his father ordering him to go home and he left. He said he did not see the 3rd, 4th and 5th accused doing anything against the deceased. [31] On the evidence of SP5 to SP9, the deceased drove the Honda which collided into the Kancil parked at the side of the road by the food-stalls. After the Honda returned to the scene, someone shouted to chase after the Honda and a crowd chased after the Honda which came to a stop at the hardware store. The accused persons were among the crowd present at the hardware store where 1st and 2nd accused assaulted the deceased on his head, cheek and neck, together with some unidentified people in the crowd. It was clear the crowd including the 1st and 2nd accused had demanded the deceased to pay compensation and he was attacked when he refused. It was also clear the 1st and 2nd accused were involved in the assault on the deceased, together with others, which resulted in the death of the deceased. [32] We were referred to section 34 of the Penal Code and parties had cited several authorities on common intention under section 34. In this case, although it was not pre-meditated, a pre-concert or a plan was formed during the course of the commission of the offence when someone shouted to chase after the Honda when it returned to the Page 13 of 16 scene, after earlier knocking into the Kancil, and the crowd chased after the Honda to the hardware store where the deceased was attacked for refusing to pay compensation. The crowd was noisy and angry looking for compensation or retribution. It preceded the attacks or the acts constituting the offence. The attacks on the deceased developed on the spot or on the spur when he refused to pay. On the facts and circumstances of the case, a common intention existed between the 1st and 2nd accused and others in the crowd who jointly attacked the deceased resulting in his death. The attacks were in furtherance of such intention: see Wan Yurillhami Wan Yaacob & Anor v PP [2010] 1 CLJ 17. [33] It might be true that it might be difficult to prove or distinguish between the acts of the individuals in the crowd or what part was taken by each of them or whether the blow or blows were fatal, under section 34 of the Penal Code, when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone: see Farose bin Tamure Mohamad Khan v Public Prosecutor and other appeals [2016] 6 MLJ 277. [34] On evidence, it was established that the 1st accused had grabbed the neck of the deceased and hit the cheek of the deceased and the 2nd accused had wound the chain-lock around the neck of the deceased and hit the head of the deceased. On the evidence of SP10, it was not in dispute that the deceased suffered 34 external injuries to his head, face and neck where he sustained a fracture to his head and multiple contusions with injuries to the soft tissue of the neck and vertebral artery which were torn with massive intracranial haemorrhage resulting Page 14 of 16 in rapid death. On evidence, the 1st and 2nd accused had attacked the deceased which resulted in his death. [35] Based on the evidence before us, we were satisfied that the acts committed by the 1st and 2nd accused against the deceased were with the intention of causing such bodily injury as is likely to cause death. These came within section 304(a) of the Penal Code: see Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ 174. We were satisfied that the 1st and 2nd accused had failed to raise any doubt on the prosecution’s case and that the convictions against the 1st and 2nd accused were safe. Therefore there were no merits in the appeals against conviction and the appeals were accordingly dismissed. [36] In respect of the appeal by the 3rd accused, we have scrutinized the record of appeal. SP5 testified that the 3rd accused helped to carry the body of the deceased and put the deceased inside the Honda after the deceased fell onto the ground after he was assaulted by others. SP7 and SP9 testified that the 3rd accused was present but was not involved in the assault on the deceased whereas SP6 and SP8 did not mention of the presence of the 3rd accused or of his involvement in the assault on the deceased. [37] From the evidence of the eye witnesses, it was clear that the 3rd accused was not involved and did not participate in the assault on the deceased and that the prosecution had failed to prove beyond reasonable doubt its case against the 3rd accused. We were therefore of the view that the learned trial judge had failed to appreciate the evidence of these witnesses and had erred in convicting the 3rd accused for the offence under section 304(a) of the Penal Code. We Page 15 of 16 were unanimous in our decision to allow the appeal of the 3rd accused. We set aside the conviction and sentence and acquitted and discharged the 3rd accused. [38] It is trite that an appellate court is slow to disturb a sentence passed by the court below unless it is manifestly excessive or inadequate or wrong or being unsuitable to the proved facts and circumstances of the case. The mere fact that another court may pass a different sentence provides no reason for the appellate court to interfere as such. Under section 304(a) of the Penal Code, the imprisonment term may extend to thirty years. Given the facts and circumstances, there was no reason for us to interfere with the sentence imposed by the learned trial judge against the 1st and 2nd accused. We had accordingly affirmed the sentence imposed. Dated: 21st December 2018 signed STEPHEN CHUNG HIAN GUAN (delivering judgment of the court) Court of Appeal Judge Putrajaya For 1st and 3rd Appellants: Aizul Rohan bin Anuar and Mohamad Saiful Dzulhelmi bin Zulkifli Messr Saiful, Riger & Co For 2nd Appellant: Mohd Faizal bin Abdul Raman and Mior Amirul Rafiq bin Mior Halim Messr Faizal Rahman & Co Page 16 of 16 For Respondent: Ahmad Sazilee bin Abdul Khairi, Nurshafini binti Mustafha, Muhammad Azmi bin Mashud Deputy Public Prosecutor, Attorney General Chambers