of s.300 of the Penal Code. [117] It is true that the trial judge did not specifically state the act that caused the facial injuries but, in our considered view, by accepting the evidence of PW18 on the cause of death, then by necessary implication the trial judge had also accepted the opinion of PW18 on what had caused the facial injuries. It is therefore not correct to say that the trial judge had failed to consider the issue of actus reus. [118] We find from the report by PW18 that he was certain which injury had caused death and he was also certain what act had caused the injuries. This is what PW18 had stated: Kecederaan muka yang dialaminya adalah berpunca dari hentakan objek tumpul menggunakan kudrat yang kuat. Objek tumpul di sini bermaksud apa-apa objek yang tumpul seperti batu, kayu, besi dan mungkin juga tumbukan tangan dan tendangan kaki. We find that what PW18 had left open was the manner or how the facial injuries were inflicted i.e. it could have been inflicted 46 using “batu, kayu, besi dan mungkin juga tumbukan tangan dan tendangan kaki.”. [119] Learned counsel had suggested that the facial injuries could have been caused by a forceful fall onto a hard surface or a blunt object. We have considered the testimony of PW18. We find that although PW18 had agreed in cross examination that the injuries could have been caused in the manner suggested by the defence counsel, yet PW18 had not made any concession that the facial injuries suffered by the deceased were more likely sustained in the manner suggested by the defence. At the conclusion of his testimony, his finding that the facial injuries were inflicted by a forceful blow with a blunt object remained unchanged. The resultant bone fractures and internal bleeding caused blood to enter the airway. The deceased could not breathe and he died. On the evidence, the facial injuries were caused by a forceful blow or blows to the deceased’s face. We agree with the learned judge that the act that caused the facial injuries came within the provisions of limb (c) of s.300 of the Penal Code. [120] Learned counsel had further suggested that the death of the deceased could have resulted from other diseases like a weak heart, tuberculosis and asthma. Again we considered the evidence of PW18. His report shows that he did not find any indication that the deceased had suffered from any ailments or physical infirmities to suggest that the death of the deceased could have been due to other causes. On the contrary, we find 47 that his report shows that the deceased was a healthy young man. Further, neither PW26 nor PW32, who are the deceased’s close family members, were cross examined on the state of the deceased’s health. No suggestion was put to either PW26 or PW32 that the deceased had suffered from asthma, tuberculosis or a weak heart which could have been the cause of death or which could have contributed to his death. Kidnapping (1st charge) [121] In respect of the first charge, we have considered the evidence adduced by the prosecution through PW26, PW27, PW37 and PW18 respectively and we agree with the trial judge that the prosecution has proved that the deceased had been kidnapped for ransom. [122] The testimony of PW26 regarding the messages that she had received from the deceased’s handphone, the demand for ransom for the release of the deceased, the dire consequences threatened on the deceased if the demand was not complied with and the various instructions that she had received from the kidnapper were corroborated by the data extracted by PW37 from the deceased’s handphone and the contents of the book exhibit P18A. [123] Learned counsel submitted that there was no evidence to show that the deceased was detained against his will or was wrongfully detained. We do not agree. We find that there was ample evidence from the testimony of PW26, PW38 and PW37 48 that the deceased was restrained with his face wrapped with black tape except for his nostrils and the yellow string around his neck. This evidence was not seriously challenged by the defence. [124] The evidence adduced through PW18 and PW27 further confirmed the fact that the deceased was restrained. PW18 had testified that on the deceased’s wrists he found “kesan-kesan calar halus yang selari merangkumi kawasan selebar 1 cm pada kedua-dua pergelangan tangan. Kesan-kesan calar ini menyerupai kesan akibat digari.”. Around the deceased’s ankles PW18 found “kesan-kesan calar yang melintang disertai dengan kesan lebam pada kawasan sekitarnya …. Bersesuaian akibat diikat/gari.”. PW27, who had analysed the exhibits recovered from the Bercham house, found the deceased’s DNA on the knife, handcuffs, yellow rafia strings, cushion covers, towel, human hairs and cotton swab. Thus, there was overwhelming evidence that the deceased was forcefully and wrongfully detained. The presence of his DNA on some of the exhibits recovered from the Bercham house particularly his shorts and the receipt from Tejani Medical Services Sdn Bhd. in his name, fortified the prosecution’s case that the Bercham house was where the offences were committed. [125] The prosecution’s case is that the deceased was kidnapped between 20.4.2007 and 29.4.2007. 49 [126] The evidence of PW26 shows that the deceased had left his house on the night of 20.4.2007 about 10 pm. The prosecution adduced evidence which shows that on 21.4.2007, the following day, transactions were made using the deceased’s credit card. Two transactions were made on that date. The evidence of the first transaction is in the form of the receipt issued by ‘The Store Jalan Kampar’. The time of the transaction was 12.07 pm. The second transaction was made at Jaya Jusco Ipoh at 3.23 pm. The evidence on the second transaction was adduced through PW11, PW12 and PW13 and various documentary evidence in the form of the cash memo (exh. P28B) and credit card slip (exh. P28A). The third transaction took place on 22.4.2007 at 5.30 pm also at Jaya Jusco Ipoh. The evidence that these transactions took place is not in dispute. The prosecution’s case is that it was the 2nd appellant who had used the deceased’s credit card on those two dates which the 2nd appellant denied. Identification evidence [127] The prosecution adduced evidence through PW11 and PW12. Both had identified the 2nd appellant as the man who had used the deceased’s credit card at Jaya Jusco Ipoh. Learned counsel submitted that the trial judge had erred in accepting the identification evidence of PW11 and PW12. It was submitted that their evidence was of little value and ought not to have been given much weight since four years had elapsed between the date of the incident and the trial. 50 [128] We are mindful that in a case where the prosecution relied wholly or substantially on the identification of an accused person, the court ought to have in mind the guidelines set out in R v Turnbull and Others [1976] 3 All ER 549 when assessing the quality of the identification evidence (‘the Turnbull guidelines’). Lord Widgery CJ (as he then was) speaking for the English Court of Appeal said (page 551): First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.... At p. 552 the court said: Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police?... Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. The court said further: All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken 51 identification is lessened; but the poorer the quality, the greater the danger. In our judgment, when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it; provided always, however, that an adequate warning has been given about the special need for caution. Were the courts to adjudge otherwise, affronts to justice would frequently occur.... When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.... A failure to follow these guidelines is likely to result in a conviction being quashed and will do so if in the judgment of this court on all the evidence the verdict is either unsatisfactory or unsafe. [129] In his grounds of judgment, the trial judge said as follows: I am satisfied with the dock identification of the 2nd Accused by SP11 and SP12, the promoter and the cashier of Jaya Jusco Ipoh respectively. According to SP11, she said she could identify the 2nd Accused because he came on two consecutive days that is 21 and 22.4.2007 to make some purchases from her in Jaya Jusco Ipoh. Firstly, she said the 2nd Accused was wearing the same black cap, and a faded blue color jacket. She said she could see the 2nd Accused clearly although the incident happened four years ago. She said she spent time explaining to the 2nd Accused how to operate the handicam which the 2nd Accused purchased. They were at a close distance of 1 to 2 feet. SP11’s evidence was corroborated by SP12’s evidence. According to SP12, she could identify the 2nd Accused as a Chinese teenager with his hair above his neck and without moustache. She said she could identify the 2nd Accused as the 2nd Accused came on two 52 consecutive dates wearing a black cap and a faded blue jacket. I find that the evidence of SP11 and SP12 was never shaken at all. I have no reasons not to believe them as they have no reasons to tell lies in Court. Although SP11 and SP12 only identified the 2nd Accused through dock identification, I find that such a dock identification based on the reasons given by them is proper and can be safely accepted. [130] We have perused the testimony of PW12. In re-examination she was asked whether she was certain on her identification of the 2nd appellant. The notes of evidence show as follows (page 269 appeal record Jld. 2b): Soalan 10 - Kenapa kamu benar-benar boleh cam OKT2 sebagai pelanggan yang telah membuat bayaran di kaunter kamu pada 21 dan 22.4.2007? Jawapan - Saya ada berkomunikasi dengan dia dan saya ada tanya semalam awak sudah datang dan hari ini awak datang lagi. Dia cakap dia nak beli barang lagi oleh sebab itu dia datang lagi. Ini sebab saya boleh mengecam dia. [131] It is trite law that the view of the trial judge as to the credibility of a witness must be given proper weight and consideration. An appellate court should be slow in disturbing such finding of fact arrived at by a trial judge, who had the advantage of seeing and hearing the witness, unless there were substantial and compelling reasons for disagreeing. (per Hasan Lah, FCJ in Amri Ibrahim & Anor v. PP [2017] 1 CLJ 617). Although the trial judge did not mention the Turnbull guidelines 53 in his grounds of judgment, his judgment shows that His Lordship had considered the evidence and the prevailing circumstances when evaluating the evidence on the identification of the 2nd appellant. The trial judge was satisfied that it was safe to accept the identification evidence. We have no reason to disagree with the finding of the trial judge that PW11 and PW12 are credible witnesses and their identification evidence can be safely accepted. PW12 in particular, was attentive and perceptive enough to notice not just the 2nd appellant’s attire but also his general appearance, his hair and face. She formed the opinion that the 2nd appellant was a teenager. [132] On the evidence we find that the prosecution has proved that it was the 2nd appellant who had used the deceased’s credit card on 21.4.2007 and 22.4.2007 at Jaya Jusco Ipoh to buy the Handycam and the teddy bear. Both the Handycam and the teddy were recovered from the 2nd appellant. This finding demolishes the contention of the 2nd appellant that it was Dolphine who had used the deceased’s credit card to purchase the Handycam at Jaya Jusco Ipoh. The defence had also contended that the teddy bear was purchased at The Store Jalan Kampar. We find that the evidence of PW12 on her recollection of the teddy bear shows that it was bought at Jaya Jusco Ipoh. This is what she said: 54 Soalan 16 - Kenapa kamu tidak setuju dengan pandangan peguam bahawa kamu tidak pasti teddy bear ini ID31A adalah teddy bear terlibat dalam transaksi berkenaan? Jawapan - Sebab saya masih ingat lagi teddy bear ini ada pakai ribbon. [133] The evidence which reveals that on 21.4.2007 and 22.4.2007 the 2nd appellant had in his possession the deceased’s credit card establishes a link between the 2nd appellant and the deceased. It shows that from 21.4.2007 he had access to and control over the deceased. The evidence that he had used the deceased’s credit card for his own purpose shows that the 2nd appellant was able to exert his will over the deceased. The irresistible inference that arises from this evidence is that he must have known that the deceased had been abducted and was held captive at the Bercham house. This evidence incriminates him in the kidnapping of the deceased (see Idris v Public Prosecutor [1960] 26 MLJ 296; [1960] 1 LNS 40). [134] The prosecution case that the Bercham house was the place where the offences were committed was not challenged. However, like the 1st appellant, the 2nd appellant contended that he had not gone to the house from 18.4.2007 till 29.4.2007. The appellants said that they did not get any computer to service or repair during that period. The 1st appellant further testified that on 18.4.2007 Dolphine had come from Penang and had wanted to use the house because he did not want to stay in a hotel. The 55 1st appellant had given to Dolphine the only set of keys to the house. [135] The trial judge did not accept the 1st appellant’s evidence that between 18.4.2007 and 29.4.2007 there was no computer to repair or service. His Lordship found the reason strange. We agree with the trial judge. The testimony of the 2nd appellant shows that from the time they had started renting the house (9.4.2007) till 16.4.2007 (the date when he said the last computer was repaired), he had repaired and serviced about 23 computers. If this evidence was true, then the decision of the trial judge not to accept the explanation given by the 1st appellant is not unreasonable. We agree with the trial judge that it did appear strange that suddenly from 18.4.2007 there was no computer to repair or service when, according to the 2nd appellant’s evidence, in the eight days from 9.4.2007 (the date of commencement of the tenancy) to 16.4.2007 they had received 23 computers to service or repair. DNA evidence [136] Learned counsel had referred to a paragraph in the report prepared by the chemist, PW27, wherein she had stated as follows: The DNA profiles were successfully developed from the above samples except from hairs “T26”, “T27” and “T44” and bloodstains on nail clippings “T20” and “T21”, cloths “T22” and “T39”, string “T23” and shorts “T35”. (underline ours) 56 Learned counsel submitted that in cross examination PW27 had agreed that the hair samples from “T26”, “T27” and “T44”, and bloodstains on “T20”, “T21”, “T22”, “T23”, “T35” and “T39” could have originated from an unknown person. It was submitted that Dolphine’s DNA could possibly be on those samples. [137] Learned DPP in reply submitted that this is incorrect. It was submitted that what PW27 had said was that she could not develop DNA profiles on those samples. Therefore it is not correct to say that those samples may contain DNA of an unknown person. [138] The notes of evidence show that in re-examination PW27 was asked to explain what she had meant when she had stated in her report that she could not successfully develop DNA profiles from hair samples “T26, T27 and T44 … and shorts T35”. PW27 explained as follows (page 633 appeal record Jld. 2d): Maksud saya, saya tidak dapat menghasilkan profile DNA daripada rambut T26 hingga shorts T35. [139] We agree with the DPP that learned counsel’s submissions are incorrect. What PW27 had said was that she could not successfully develop DNA profiles on those samples. This meant that no DNA profile was available from those samples for PW27 to analyse. To interpret the statement as meaning that there is a possibility that the DNA of unknown persons or Dolphine could have been on the samples is a 57 misrepresentation of the meaning of the statement. In the circumstances we find that there is no basis to presume, as learned counsel had done, that these samples may contain the DNA of unknown persons or Dolphine. Alibi [140] The complaint raised by learned counsel on the issue of the alibi defence is that the trial judge had confused the 2nd appellant’s alibi witness DW4 with DW2, who was the alibi witness for the 1st appellant. Learned counsel had submitted that this confusion caused the trial judge to misappreciate the 2nd appellant’s defence and led to his finding that the evidence of DW3 had completely destroyed the purported alibi defence raised by DW2. It was submitted that this had occasioned a grave miscarriage of justice which rendered the conviction of the 2nd appellant for both offences unsafe. Learned DPP in reply had submitted that this was a typing error. The trial judge had found DW4 credible even though her mother DW5 had described her as otak lembab. Learned DPP submitted that notwithstanding the apparent error, the trial judge was correct in finding that the evidence of DW4 had completely destroyed the purported defence raised by DW2. [141] We find that it is obvious that the trial judge was referring to DW4 even though in his judgment he referred to her as DW3. This can be seen from his judgment when he stated as follows: 58 I find that SD3 is a witness with a simple mind and is a truthful witness despite the fact that she had some health problems. The sole alibi witness who was described in such terms was DW4, the 2nd appellant’s sister. We are inclined to treat the mistake as a typing error. [142] The trial judge found that the evidence of the 2nd appellant’s sister did not support his alibi defence. DW4 had stated she had stopped work in March. She started working again in April 2007. But on the days when she was not working, she saw the 2nd appellant going to work. She said the 2nd appellant left for work at 8-9 am and he would return home between 7-8 pm. DW5, the 2nd appellant’s mother, on the other hand testified that in April 2007 the 2nd appellant would repair computers at home. The trial judge accepted the testimony of DW4 instead of the testimony of DW5. As we have mentioned earlier the trial judge who has audio-visual advantage is entitled to do so. We find that despite the error on the face of the record in respect of the references to the alibi witnesses, no prejudice was occasioned to the 2nd appellant’s defence. The defence of alibi has failed to raise a reasonable doubt in the prosecution case. Failure of the police to properly investigate [143] In connection with the alibi defence, learned counsel faulted the police for not carrying out investigation on the alibi notice. We find nothing turns on this issue. The alibi witnesses 59 are the 2nd appellant’s close family members. Had investigation been carried out and statements recorded from these witnesses, it is reasonable to expect that whatever statement that they may give would not be different from their testimony in court. We do not find that the failure by the police to investigate the alibi notice has prejudiced the 2nd appellant’s defence. On the contrary, in our view the failure of the police to investigate the alibi notice deprived the prosecution of the opportunity to rebut the alibi evidence. This would be to the 2nd appellant’s advantage. Common intention [144] The prosecution relies on s.34 of the Penal Code. Thus common intention must be established by the prosecution to prove that the kidnapping and murder of the deceased were committed by the appellants in furtherance of the common intention of both of them. [145] Learned counsel submitted that the prosecution failed to prove that: