Mohd Hafidz Bin Ibrahim (AB-46B-1-07/2023)

(a) the deceased was Mohd. Zaki Bin Md. Aluwee (IC No.: 790722-03-5053);

(b) the death of the deceased was due to the injuries sustained;

(c) the injuries sustained by the deceased were inflicted upon him by the accused persons; and

(d) the act(s) of the accused persons were committed with common intention to cause injuries to the deceased, which were sufficient in the ordinary course of nature to cause death. [15] The identity of the deceased was an undisputed fact and the first ingredient of the offence has been proved. The Court concluded 5 also that the deceased died from the fatal injuries sustained to his chect and abdomen; the second ingredient has been proved. The more contentious issues were whether the actus reus was coupled with mens rea to murder, and the identities of the perpetrators of the crime. 10 EVALUATION AND FINDINGS OF THE COURT [16] The burden of proof on the prosecution is to prove the charge beyond a reasonable doubt. The duty of the Court at the end of the prosecution stage is to conduct a maximum evaluation of the 15 evidence adduced by the prosecution to determine whether a prima facie case have been made out against the accused persons, which if unrebutted would warrant his conviction. Section 180(4) provides that a prima facie case is where the prosecution has adduced credible evidence proving each ingredient of the offence, which if 20 unrebutted or unexplained would warrant a conviction. [17] The test to be applied at the end of the prosecution’s case is whether there is sufficient evidence to convict the accused if he chooses to remain silent, which if answered in the affirmative means that a 25 prima facie case has been made out. This requires a consideration of the existence of any reasonable doubt in the prosecution’s case, which if it exists, cannot lead to the finding of guilt of a prima facie case having been made out: Balachandran v PP [2005] 1 AMR

[18] In regard to the second and fourth ingredients of the offence, the Court heard the evidence of the pathologist, SP21. He stated in the post-mortem report marked as P125 (at page 2) the following: 5 Marks and Injuries:

Stab wound over the upper left anterior chest wall measuring 3.2 x 2cm, 8cm below 2. 3. 4. the sternal notch, 11cm above the left nipple and 132cm above the left heel. This injury is penetrating into the left chest cavity, with a depth of approximately 16.5cm. 10 2. Stab wound over the left anterior chest wall measuring 3 x 2cm, 5.5cm below the left nipple and 117cm above the left heel. This injury is penetrating into the left chest cavity, with a depth of approximately 10cm.

Stab wound just below the xiphoid process of the sternum measuring 2.7 x 2cm, 16.4cm above the umbilicus and 115.4cm above the left heel. 15 This injury is penetrating into the abdominal cavity, with a depth of approximately 14.5cm.

Stab wound over the left hypochondrium measuring 2.5 x 1.6cm, 10cm above the umbilicus and 106.7cm above the left heel. This injury is penetrating into the abdominal cavity, with a depth of approximately 20 10.8cm.

5.

Stab wound over the upper back, midline, measuring 3.2 x 1.5cm, 5cm above the left heel and 23.4cm from the left shoulder. This injury is penetrating into the chest cavity, with a depth of approximately 16cm.

Stab wound over the right scapular region of the back measuring 3.1 x 25 1cm, 11cm from the midline and 129cm above the right heel, with a depth of 4.2cm. This wound appears horizontal as compared to the other stab wounds over the back. The wound edges do not show any vital reaction and appear to be post-mortem in nature.

Stab wound over the right mid back measuring 2.7 x 1cm, with a depth 30 of approximately 6cm, 4cm from the midline and 119.5cm above the right heel. This injury is penetrating into the chest cavity.

Stab wound over the mid back, midline, measuring 4.2 x 1.9cm, with a depth of approximately 12cm, 5cm to the left of wound number (7) and 117cm above the right heel. This injury is penetrating into the abdominal 35 cavity.

Stab wound over the left mid back measuring 2.8 x 1.4cm, 7cm from the midline and 102.5cm above the left heel, with a depth of approximately 7.6cm. This injury is penetrating into the chest cavity.

Abrasion over the left wrist measuring 2.5 x 1.5cm with surrounding bruising measuring 21 x 8cm, corresponding to hand-cuff restraints. 5 11. Abrasion over the right wrist measuring 1.7 x 1.2cm with surrounding bruising measuring 8 x 4cm, corresponding to hand-cuff restraints. Stab wounds over the back, number 5,9,8,7, appear to exhibit outward protrusion of tissues with a slight evertion of the margins. They appear to be corresponding exit stab wounds, correlating with stab wounds of the anterior 10 chest and abdomen (number 1,2,3,4). … C.Medical Entomology Unit of Institute of Medical Research (IMR) Laboratory Analysis: Representative specimens of live maggots, dead maggots and dead fly 15 recovered from the remains have been collected and submitted to IMR for further analysis. Based on the entomology report (IPP/EF/086/2021), the minimum post-mortem interval (mPMI), is based on the oldest specimen, which in this case is the 3rd instar larva. The minimum age of the 3rd instar larva is determined to be at least 4 days old, implying that the deceased was dead 20 at least 4 days prior to the collection of the larva from the cadaver. [19] In regard to the third and fourth ingredients of the offence, the prosecution relied on circumstantial evidence to prove that the injuries sustained by the deceased were inflicted upon him by the accused persons and that their act(s) were committed with common 25 intention to cause injuries to the deceased, which were sufficient in the ordinary course of nature to cause death. In the case of PP v. Magendran Mohan [2005] 3 CLJ 592, Balia Yusof J had deliberated upon the issue of circumstantial evidence as follows: 30 “…It has always been emphasised that wherever circumstantial evidence is relied on by the prosecution in building up its case against an accused person, any such piece of evidence must tend only in one direction, that is to say, suggest or lend support to an inference of guilt. (see Muniandy and Anor v. PP [1973] 1 MLJ 179). In Kamis v. PP [1974] 1 LNS 59; [1975] 1 MLJ 46, the 35 appellant was convicted on a charge of murder and was sentenced to death. The evidence against him were entirely circumstantial and on an appeal to the Federal Court, his conviction was affirmed. The learned trial judge had in his summing up to the jury stated that “for a court to rely on circumstantial evidence, the evidence when considered must point only to the guilt of the accused; it 5 must not be capable of any other interpretation of any other meaning”. The Federal Court in considering the summing up by the trial judge said that it was impossible to say that there was a miscarriage of justice. Blackstone’s Criminal Practice 1991 at pp. 1674-1675 stated the following on circumstantial 10 evidence: Circumstantial evidence is to be contrasted with direct evidence. Direct evidence is evidence of facts in issue. In the case of testimonial evidence, it is evidence about facts in issue of which the witness claims to have 15 personal knowledge, for example, 'I saw the accused strike the victim'. Circumstantial evidence is evidence of relevant fact, i.e. facts from which the existence or non existence of facts in issue may be inferred. For example, the tribunal of fact is likely to attach more weight to a variety of individual items of circumstantial evidence, all of which lead to the same 20 conclusion, than to direct evidence to the contrary coming from witnesses lacking in credibility. (emphasis ours) Pollock CB likening circumstantial evidence to a rope comprised of several cords, said: 25 “...One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength....” ... The Federal Court, in Chang Kim Siong v. PP [1968] 1 MLJ 36 stated: 30 “…The onus on the prosecution where the evidence is of a circumstantial nature is a very heavy one and that evidence must point irresistibly to the conclusion of the guilt of the accused. If there are gaps in it, then it is not sufficient. 35 Further deliberation on the issue of dealing with circumstantial evidence, the courts of this country has always been guided by the three tests formulated by the Indian Supreme Court in Chandmal & Anor v. State of Rajasthan (AIR) [1970] SC 917 where Sarkaria J said: 40 It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and 5 no one else. That is to say the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused’s guilt. (See also: Ghambir v. State of Maharashtra AIR [1982] SC 1157). [Emphasis added] 10 [20] Although none of the prosecution witnesses saw either of the accused persons killing the deceased, upon a maximum evaluation of all the evidence before it, as will be discussed below, the Court was satisfied that the prosecution had proved a prima facie case on all the ingredients of the offence. 15 The facts relevant to the deceased’s death i. The fatal injuries to the deceased [21] SP21’s evidence in the postmortem report P125 stated his finding (pages 559 – 565 of the Notes of Evidence), inter alia, that: 20 In referring to page 10 of my witness statement under sub section chest there were extensive subcutaneous contusions and incisions corresponding to the external injuries. There were injuries to the sternum, the left 2nd rib, left 4th rib, left 8th rib, left 10th rib and 300ccs of liquid blood within the right chest cavity. There was also injury to 25 the lung itself which is on page 11 line number 4 Yang Arif. There was an incision over the left upper lobe of lung with surrounding contusions. ... So if Yang Arif were to refer to photographs 25, 26, 27, 28, 29, 30, 30 31, 32 and 33 the numbering seen on the photographs correspond to the numbering of injuries which I have stated in my report Yang Arif. So you see 1, 2, 3, 4 in front and then you have close up pictures of each wounds Yang Arif. And if you refer to photographs 40, 41 they show injuries 5, 6, 7, 8, 9 Yang Arif. As numbered 35 according to my marks of injuries. 41, 42 and 46 Yang Arif show the restraints of the wrists. So those were the external injuries Yang Arif. Then to describe the internal injuries, the internal injuries of the chest are shown starting from photographs 71, 72, 73, 74, 75, 76, 77 and 78 Yang Arif. And this continues on page sorry, photographs number 83, 85, 86 and 5 photographs 87 shows the collection of blood which we put in a separate beaker Yang Arif to show that there’s a cumulation of 300ccs of blood and pungent liquid. Photograph number 87 Yang Arif. So after collecting that blood we put it in a beaker to measure the volume. 10 93 and 94 Yang Arif and 91, 92, 93 showed injuries to the abdomen Yang Arif with the various coloured arrows there Yang Arif. They all different cuts to different parts of the diaphragm and different parts of the abdomen Yang Arif. 15 [22] SP21 found that the injuries to the chest and abdomen contributed to his death. There was no natural condition that could have caused or contributed to his death at that time. He did not find any defensive injury on the deceased but stated that that could have been due to 20 the handcuffs to restrain the victim. [23] From the extent of the injuries seen, he said it was possible that one or more suspects were involved in the attack. He explained that the deceased was a well-built adult male and toxicological result which 25 was on page 12 of his witness statement did not show presence of any drugs or pesticides in his system. To be able to restrain the deceased with handcuffs and result in the injury seen at the front and at the back of the body in his opinion could be due to the acts of one or more assailants. Taking into account the severity of injuries 30 including the internal injuries of the chest and abdomen, the deceased may have succumbed to his injuries after a few minutes. But this was also affected by the sequence of injuries. For example, if the abdominal injuries were sustained first, the deceased would still be able to breath as there were no injuries to the chest and the lungs at that point of time. If for example the stabbing occurred to the area of the chest first, this would result in injuries to the lungs, bleeding within the chest and that would impair breathing and result in death sooner. So, the sequence of injuries mattered. 5 [24] Another point which was important for the court to know was that there was 300 cc of liquid blood mixed with purging fluid in the right pleural cavity. But with all the stab wounds, he stated there would have been a lot of blood at the scene of crime. In cross-examination, 10 SP21 told the Court that the deceased could have succumbed within minutes “Just based on whatever evidence I mentioned but like I said if I have been told that he lost 3 litres at the scene, few seconds to few minutes you know because that amount of catastrophic bleeding would result him losing consciousness much sooner.”. He 15 agreed that injury number 6 was inflicted a few minutes or at any point after death. [25] When the Court asked SP21 what would be the position of the deceased when the injuries were inflicted, he replied: 20 SP21: Speculations. So I would imagine someone who is well built who’s alert, who’s conscious to be able to stab that many times and expecting to stay still without a second person would be difficult. That’s number one. And number two, it would be easier if someone is restraining him because now that hands are restrained. Maybe someone need to restrain the 25 body or the legs for another person or the same person to be able to stab 4 times and then you know so the person so either I would assumed based on the findings maybe in a lying down position because if he were to be seated unless someone is holding him in that position Yang Arif. So he’s going to move. He’s hands are restrained not his legs. So 30 depending on the type of restraints that were used. But we didn’t find other injuries but again he’s wearing clothing so that may masquerade other straps or other form of injury. Or there are enough people holding him down and then it’s easy for the stabber to stab him and then not have been fought back Yang Arif. So again this is just a speculation Yang Arif from my part. [26] From the expert medical evidence, it was safe for the Court to 5 conclude that the deceased died almost immediately because some of the blood had accumulated in his right lung, and which had accelerated his death. The deceased was viciously stabbed from the front with most likely a long sharp object. The handcuffs were deliberately placed on the deceased so he could not fight back and 10 defend himself despite his body size. And most likely he was in a lying down position. The manner of how the deceased was attacked and severity of the injuries showed that the intention of the perpetrators was to cause the immediate death of the deceased. I found that injury No. 6 at the back of his body was done for good 15 measure to ensure that he was dead. The Court found that it was pre-meditated killing i.e. murder and nothing to do with any of the 2 limbs under s. 304 of the Penal Code. ii. DNA analysis 20 [27] SP6 was the Chemist assigned to do the DNA analysis in this case. In his Chemist Report marked as P46 at page 3 he stated: Keputusan analisis DNA menunjukkan bahawa: 25 dan "H2" (berlabel "Hazwani"). Kebarangkalian adik-beradik (probability of sibship) masingmasing adalah 99.9999% yang dikira berdasarkan pangkalan data DNA STR penduduk Malaysia berketurunan Melayu, Cina dan India. 30 Aluwee"). Ini menunjukkan bahawa DNA yang dikenal pasti tersebut adalah berasal daripada individu yang sama. Kebarangkalian seorang individu lain yang dipilih secara rawak dan tidak terdapat kaitan kekeluargaan mempunyai profil DNA yang berpadanan dengan profil DNA sampel tersebut pada 15 lokus genetik adalah lebih kurang 1 dalam 350 5 quadrillion (350 x 1015) yang dikira berdasarkan pangkalan data DNA penduduk Malaysia berketurunan Melayu, 1 dalam 780 quadrillion (780 x 1015) yang dikira berdasarkan pangkalan data DNA penduduk Malaysia berketurunan Cina dan 1 dalam 1.4 quintillion (1.4 x 1018) yang dikira berdasarkan pangkalan data DNA penduduk Malaysia berketurunan India. 10 penyumbang lain tidak dapat dikenal pasti. ... panjang "H12" dan kasut "J4" adalah lemah/tidak konklusif, yang mana tidak sesuai untuk perbandingan. [28] For a full list of the items SP6 received for analysis from SP23, refer to the witness statement and Chemist Report Nos. 22-FR-P-05566 25 and 22-FR-P-06843 dated 12.12.2022 (P46). Many of the exhibits SP6 received had bloodstains on them as stated in P46. However, only the results in paragraphs 1, 2 and 3 of P46 were of some significance as can be seen above. In item 6, the Chemist detected the presence of blood on the pair of jeans and shoes which were 30 seized from OKT1 at his room in the army camp at Kem Kamunting although the DNA profile was too weak for comparison. SP6 was able to identify a male DNA profile as stated in the results in paragraph 2 of P46 which belonged to the deceased on the red T-shirt seized from OKT1 from his room at the army camp. 35 [29] The CCTV video showed OKT1 wearing a red T-shirt when he coerced the deceased to get into the Nisssan Almera on the afternoon of 10.10.2021. Paragraph 2 also stated that the DNA profile of the “akar bulu/rambut "H14(a)" found on the red T-shirt matched the deceased’s. Hence, I found that this evidence 5 placed OKT1 within close range of the deceased when the transfer of the deceased’s blood and hair/follicle to his shirt occurred. [30] The Court noted that P46 also stated: 10 "H12(a)", kesan DNA surih pada hulu parang "JB" serta kesan menunjukkan kehadiran darah pada rumput "1A", beg plastik "Z", baju-T "H11", dan selipar "T1", oleh itu tiada perbandingan DNA dapat dibuat. 15 [31] Nevertheless, the above showed that there were some traces of blood found on the above items although they could not be used to obtain any DNA profile for comparison. The left pair of the slippers T1 belonging to the deceased as was identified by his wife SP10 showed the presence of blood. The cross-examination of SP6 did 20 not destroy his testimony that I should not reject his evidence. [32] The charge was that both accused persons had committed the act of murdering the deceased in furthering their common intention under s.34 of the Penal Code. The prosecution had to rely on 25 circumstantial evidence to prove this ingredient of the offence. iii. Identity of the crime perpetrators [33] Based on his findings, SP21 stated injuries 1 to 9 were consistent with sharp force trauma injuries and could be caused by a sharp 30 weapon or implement such as a knife. SP21 was shown the long parang (P54A) and he stated “The object in front of me appears to be a sharp weapon and appears to be of sufficient length to have resulted in the stab wounds over the front extending to the back of the victim.”. He was of the view that looking at injuries 1, 2, 3 and 4 5 he estimated the depth of the injury ranging between 16.5 cms for injury number 1, 10 cms for injury number 2, 14.5 cms for injury number 3 and 10.8 cms for injury number 4. He said he was unable to tell the exact measurements as he had not personally measured this object but they appeared to be possible to have resulted in the 10 measurements that he had mentioned. [34] From the expert opinion of SP21 in respect of the weapon used in the crime against the deceased, Court found that P54A was most likely the weapon used to cause the fatal injuries to the deceased’s chest and abdomen. The long parang was the item recovered by the 15 police near a reservoir after they were led by OKT2 to its doscovery. The Court was mindful not to admit any admission by any of the accused persons when the prosecution sought to adduce evidence under s. 27 of the Evidence Act 1950. Additionally, I admitted this piece of evidence as evidence of conduct under s.8 of the said Act. 20 [35] I refer to Evidence Practice and Procedure, 4th Edition by Augustine Paul (Lexis Nexis) at page 66 where the author explained: “Evidence of conduct may be proved by various ways.

(a) Incriminating behaviour of the accused.

(i) The act of pointing out. The act of pointing out is admissible, irrespective of section 27 of the Act, as evidence relating to the conduct of an accused person when confronted or questioned by a police officer during the course of an investigation. 30 Per Arifin Zakaria CJ (Malaya) in Amethevelli Ramasamy v Public Prosecutor [2009] 3 CLJ 109, 122 (FC) at para [31]: The inadmissibility of the information supplied by the appellant does not 5 affect the admissibility of the evidence of her subsequent conduct under s 8 of the Evidence Act irrespective of s 27. As Chinnappa Reddy J. Said in Prakash Chand v State AIR SC 400 at p 404: The evidence of the circumstances, simpliciter, that an accused person 10 led a police officer and pointed out to the place where stolen articles or weapon which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously will or antecedent to such conduct fall within the 15 purview of section 27 of the Evidence Act (vide Himachal Pradesh Administration v Om Prakash AIR [1972] SC 975).”. [Emphasis added] [36] The following chronology listed down the events, dates/time and 20 items recovered as a result of police investigations upon OKT1 and OKT2 from 12.10.2021 onwards: Date/Time Event Exhibit

1.

12.10.2021 6.30 pm Jalizulham with Zaid arrested OKT2 at his carwash in Kg. Jana Sambungan in Kamunting and seized phone (J1) P102 Kamunting Report 5755/21 2.

12.10.2021 9.00 pm Jalizulham with Zaid interrogated OKT2 where he led them to where the deceased’s body was allegedly stabbed by OKT1 P105 Taiping 6391/21 3.

12.10.2021 10.30 pm OKT2 led ASP Jalizulham with ASP Zaid to Jalan Kubu Gajah – Lenggong, Hulu Ijok showed where the deceased’s remains was with his hand handcuffed at back P106 Redang Panjang Report 399/21 4.

13.10.2021 6.45 pm ASP Jalizulham went to Happy Motel, Kaki Bukit, Perlis and arrested OKT1 P107 Kaki Bukit Report 497/21 hiding behind door in room 2 but his name was registered under room 8.

5.

13.10.2021 7.45 pm OKT1 gave information to Jalizulham he can show everything used and seizure of his telephone (J) P108 Kaki Bukit Report 498/21 ASP Jali led by OKT1 went to a house in Kg Kuala Ruat in Yan, Kedah and seized OKT1’s Nissan Almera with keys (J1) P110 Yan Report 4226/21 ASP Jalizulham with ASP Zaid led by OKT1 went to 303 DBK Rejimen Ke-3 Artileri Diraja, Kem Kamunting at Bilik Rehat where OKT1 showed red-Tshirt with collar (J2), blue jeans (J3) and brown shoes (J4) worn by him P113 Kamunting Report 5784/21 8.

14.10.2021 11.30 am OKT2 led ASP Jalizulham and gave information where his shirt and pants thrown away at Sg Rantin P99 Taiping Report 6437/21

9.

14.10.2021 1.05 pm OKT2 led to ASP Jalizulham and ASP Zaid to Sg Rantin near his house and showed the green plastic bag containing his clothes P101 Kamunting Report 5792/21 ASP Jali with ASP Zaid interrogated OKT2 – gave information where he threw broken key-flag at his carwash and parang at kawasan hutan Bukit Larut P116 Taiping Report 6447/21 OKT2 led ASP Jalizulham with ASP Zaid to where he threw broken key-flag at his carwash, beside car garage in Kg Jana Sambungan (JA) P117 Kamunting Report 5798/21 OKT2 led ASP Jalizulham with ASP Zaid to forest area near Loji Rawatan Air Taiping Headworks – seized a parang 15cm with wooden hilt (JB) P119 Taiping Report 6447/21 Insp Thanabalan re-arrested OKT2 for murder P95 Taiping 652/21 OKT2 gave information to Insp Thanabalan where he had thrown away slipper of deceased at Bukit P96 Selama Report 1954/21 Sumpitan, Jalan Kubu Gajah – Lenggong OKT2 led Insp Thanabalan to where slipper of deceased was at Bukit Sumpitan, Jalan Kubu Gajah – Lenggong P97 Redang Panjang Report 422/21 [37] The series of discoveries of the items relating to the commission of the murder from the above table pointed only to one thing, and that was the involvement of both accused persons and no one else in 5 this very grave crime. These were evidence of conduct admissible under s.8 of the Evidence Act 1950. In the case of Samuel John Marisinapen v PP [2018] 6 CLJ 526 the Court stated: “Evidence of conduct is relevant under s. 8 of the Evidence Act 1950 if it 10 influences or is influenced by any fact in issue or relevant fact, and whether it was a conduct antecedent or subsequent thereto. (See: Parlan Dadeh v. PP [2009] 1 CLJ 717 FC; [2008] 6 MLJ 19; [2008] MLRA 763). Sarkar on Evidence 15th edn says at p. 175: The conduct of party to a proceeding or his agent in reference to such proceeding at the time when the facts occurred out of which 15 the proceeding arises, or in reference to any fact in issue or relevant fact, or the conduct of the complainant, is relevant; but the condition precedent to its admissibility as ‘conduct’ is that it must directly influence or be influenced by a fact in issue or relevant fact and such conduct does not include action resulting from other causes or circumstances. It must be the essential complement of the 20 act done or refused to be done. Conduct includes antecedent or subsequent conduct involving both actions and statements.” [38] In the case of Said Ghavam v PP [2013] 5 MLJ 510, the Court of Appeal in dismissing the appeal held that: 25 “(1) Perlakuan perayu yang menunjuk ke papan siling dengan muncungnya dan berikutan itu tiga bungkusan plastik dijumpai dalam siling itu adalah relevan dan diterima sebagai keterangan di bawah s 27 Akta tersebut dan sebagai bukti perlakuan di bawah s 8 Akta tersebut. Jika bukan kerana perlakuan perayu, SP3 tidak mungkin mengetahui kewujudan 30 dadah itu. Oleh demikian, perayu hendaklah diberi inferens kerana mempunyai pengetahuan bahawa dadah itu disimpan dalam siling itu. Perlakuan perayu tidak patut dianggap berasingan tetapi bersama dengan semua fakta dan keadaan lain kes itu (lihat perenggan 22 & 32).” iv. The cumulative evidence of the prosecution witnesses 5 [39] The evidence of SP13 were also relevant on the identities of the offenders. I have reproduced relevant excerpts of his evidence here for ease of reference: TPR : Lepas itu, encik bila sampai nampak kereta Nissan Almera, lepas itu Encik Hafidz dengan kawan sebelah dia itu ada di bonet kereta, lepas 10 itu apa yang berlaku? SP13: Lepas itu si Hafidz bagitahu ada seorang lagi dalam kereta, yang skandal yang dia dapat tangkap tu. … TPR : Lepas itu? 15 SP13: Dia tunjuk seorang lagi yang di dalam kereta itu bergari. TPR : Tadi encik kata nampak bergari, maksudnya bergari di bahagian depan ke bergari di belakang? 20 SP13 : Bergari di bahagian belakang. TPR : Lepas itu, apa lagi yang encik nampak selain nampak dia bergari di belakang? SP13: Seingat sayalah, saya perasan ada kesan darah di sebelah leher. Bukan 25 darah basah, darah yang keringlah. TPR : Darah kering sebelah leher, belah mana? Kanan kiri? SP13 : Sebelah kanan pipi berserta di bucu kening. 30 … TPR : Lepas itu, bila buka pintu, Encik Hafidz buka itu, you nampak lelaki Melayu yang bergari itu, lepas itu apa yang berlaku? SP13 Lelaki yang bergari itu dia tegur saya, “Encik!” Tetapi pandangan dia itu, dia tenung saya seolah jegil lah. Saya jadi gemuruh, takut. Saya terus 35 tutup pintu kereta. … TPR : Dengan izin Yang Arif. Mohon ID81. Encik cuba [inaudible]. Encik cuba camkan adakah ini lelaki yang kamu nampak bergari pada masa itu? SP13:Ya, lelaki yang bergari yang berada di dalam kereta di tempat duduk 40 depan. … TPR : Lepas itu apa yang berlaku? SP13: Lepas itu saya beri nasihat dekat Hafidz, tak perlulah buat benda-benda yang tak elok di kawasan saya. Lepas itu saya cakap kalau boleh tolong beredar daripada rumah saya lah. 5 Mahkamah : Tak perlulah buat benda-benda yang tak elok? SP13: Ya. Maksudnya benda-benda yang luar batas. Sebab saya tengok cara bergari ini saya pun dah cuak lah saya pun jadi takut. 10 … SP13 : Saya dah bagi nasihat dekat dia, dia dah berpisah dengan isteri dia kan, lepas itu tak perlu la buat benda-benda yang di luar jangkaan tu. Lepas itu, dia tak boleh terima teguran nasihat saya. Lepas itu, dia beredar daripada rumah saya lah. 15 Mahkamah : Macam jegil tu macam mana? Keadaan orang itu? SP13: Seolah keadaan dia marah sama ada saya ini terlibat dengan dia sekali ke macam mana. Dia tenung. “Encik!”. Dia tengok macam 20 tu. Saya pun jadi gemuruh lah. Saya penat baru balik pada kebun lagi tiba-tiba benda yang tak dijangka. … Mahkamah : Kenapa encik bagi nasihat kat dia jangan buat benda yang encik kata yang di luar batas? 25 SP13 :Sebab macam saya pernah berlaku berpisah dengan isteri saya, saya cakap kalau dah berpisah biarlah berpisah secara elok, baik. Tak perlu lah naik tangan ke apa kah termasuk lah dengan yang bergari ni. Saya kata kalau dia ada buat salah, antara dia dengan Tuhan. Saya nasihat macam tu lah. Dosa antara dia dengan kita tu biar Tuhan yang tentukan, 30 kita bukan ni kata. Jadi dia tak boleh terima nasihat macam itu, itu yang dia beredar daripada rumah saya itu. [40] From the above, I found that the witness was frightened with what he had seen that day when his friend brought the deceased to his 35 house in handcuffs and bloodied. He could feel something sinister about the whole situation and therefore, he advised his friend not to take the law into his own hands! In my opinion, the deceased may have been desperately trying to get SP13’s attention to help him. That was why he uttered “Encik!”. Unfortunately, he did not get the 40 help he wanted and a few days later, his body was found in an isolated place with his hands still cuffed at the back. The maggots on his remains had put the estimated time of death on the day of the fated meeting with SP13 on 10.10.2021. 5 [41] The other thing that struck me as odd was the fact that when SP11 called OKT1 upon being given his number, OKT1 had asked SP11 rather angrily why did he (SP11) think that OKT1 was involved in the abduction of the deceased. The telephone call to OKT1 could have been before or after SP14, his ex-wife, called him to ask about the 10 incident that she had seen on the CCTV video. Nevertheless, it meant that as early as on the night of 10.10.2021, OKT1 had been alerted of the fact that his aggressive acts against the deceased had been captured on camera. I found that he lied to SP11 when he said the deceased was not with him. This was surely the reaction of a 15 guilty man who did not expect that he had been found out. Therefore, when he apologised to SP14 and told her to take care of their children, I was of the view that he was “preparing her for the worst”, that he knew he would be caught soon by the police. 20 [42] That night too, at about 10.45 pm OKT1 had told his subordinate (SP8) at the army camp to lock up his room. SP11 had called him around 10.00 pm to ask about the deceased. Alerted by the fact that he had been caught on the CCTV, OKT1 had made preparations to leave the camp including returning that evening to change his 25 clothings first and hiding the clothes in his room at the camp. The defence version put to the prosecution witnesses was that OKT1 wanted to visit his aunt up north and left his car with his relative in Yan, Kedah whereby they had booked a room for him at the hotel in Perlis. His defence was he had to leave his car to avoid being caught by the police because it was during the Movement Control Order (MCO) period and he should not be seen driving on the highway. [43] However, the defence version did not make sense why his relative 5 would put him up at a hotel in Kaki Bukit, Perlis and not in Yan, Kedah itself; the distance between the two districts is about 120-125 kms or at least 2 hours away. Even SP20 who arrested OKT1 then brought him to retrieve his car in Yan, Kedah took more than 3 hours to get there (refer to P110). Additonally, OKT1 could not challenge 10 SP20’s evidence that when he was arrested in the hotel that evening, OKT1 was seen hiding behind the door in room No. 2

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 10 manner as if the act were done by him alone. The effect of s. 34 of the Penal Code has been discussed in the Indian Privy Council case of Mahbub Shah v. King-Emperor 72 IA 148 at 153 in these terms: To invoke the aid of s. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the 15 furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a prearranged plan; and to convict 20 the accused of an offence applying the section, it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult, if not impossible, to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or 25 conduct or other relevant circumstances of the case. [Emphasis added] [64] I have considered the facts pertaining to OKT2’s involvement in the crime against the deceased. It was undisputed that OKT2 was present all the time when the deceased was taken away from his 30 house at around 3.05 pm on 10.10.2021 until he was last seen with the deceased and OKT1 leaving SP13’s house. After that time, the prosecution had to rely on circumstantial evidence to link OKT2 with the crime. The Court found that through his conduct of leading the police to where the deceased’s remains was found 2 days after he went missing, the broken key (P25A) that came from the handcuffs (P73B) found on the body of the deceased was discovered at his carwash, the long parang (P54A) at the Loji Rawatan Air Headworks 5 and the deceased’s left slipper that OKT2 had thrown away at the remote area of Bukit Sumpitan, Jalan Kubu Gajah – Lenggong, these were all relevant evidence which were credible enough to prove a prima facie case against OKT2 as one of the perpetrators of the crime. He had also thrown away a pair of his clothes at a river 10 nearby his house (P52A and P53A). The Court found that his clothings did not have any traces of blood but the green plastic bag (P51A) that was used to wrap the clothes that he had thrown away at Sg. Rantin did have traces of blood on it although no DNA profile was found. The clothes that he threw away in the green plastic bag 15 matched the ones he wore and seen in the CCTV recording (P83B and P83C). SP3 confirmed that the broken keyflag (P26B) matched the broken key (P25A) of the handcuffs which OKT2 showed the police where he had thrown it. [65] It was the defence contention that the soil samples taken from that 20 found in OKT1’s car (P24A) and from near where the body of the deceased was found (P23A) did not match and therefore his clients could not have been involved in the murder. However, it must be borne in mind that the Nissan Almera was found after 3 days from the last date that OKT1 was seen driving the car and in a place which 25 was in a different state altogether. The soil sample taken from the car could have been contaminated. Thereofe, I was not surprised that the 2 soil samples taken did not match each other. Nevertheless, this Court opined that there were overwhelming evidence adduced by the prosecution against the accused persons that I did not have any doubt both of them were involved in the heinous crime against the deceased. Whatever their roles were in the commission of the offence on 10.10.2021, each of them are 5 liable (guilty) for that act in the same manner as if the act was done by him alone. The Court was satisfied that the evidence pointed irresistibly only to both accused persons as the perpetrators of the crime and no one else. [66] Pursuant to all of the above, upon a maximum evaluation of the 10 evidence before it, the Court found that the prosecution has proved all 4 ingredients of the offence and a prima facie case has been made out under s.302 of the Penal Code read with s.34 of the same against the offenders. Such a case, if unrebutted or unexplained would warrant a conviction on the offence charged. 15 THE DEFENCE CASE [67] In the case of Junaidi bin Abdullah v PP (1993) 3 MLJ 217, the Supreme Court held that: “By calling an accused to enter his defence, the trial judge must on evaluation of the evidence, have been satisfied that the prosecution had, at the close of 20 the prosecution’s case, established a prima facie case which, if unrebutted, would warrant a conviction of the accused. To arrive at such conclusion, the judge must consider all the evidence adduced by the prosecution as tested in the cross examination, on a prima facie basis”. 25 [68] Reverting to Balachandran’s Case (supra), His Lordship Augustine Paul continued with his explanation of the court’s duty at the end of the defence case as follows: “...As the accused can be convicted on the prima facie evidence it must have reached a standard which is capable of supporting a conviction beyond 30 reasonable doubt. However it must be observed that it cannot, at that stage, be properly described as a case that has been proved beyond reasonable doubt. Proof beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt the other is the evidential burden on the accused to raise a reasonable doubt. Both these 5 burdens can only be fully discharged at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by s. 182A(1) of the Criminal Procedure Code. That would normally be the position where the accused has given 10 evidence. However, where the accused remains silent there will be no necessity to re-evaluate the evidence in order to determine whether there is a reasonable doubt in the absence of any further evidence for such a consideration. The prima facie evidence which was capable of supporting a conviction beyond reasonable doubt will constitute proof beyond reasonable doubt ...”. 15 [69] At this stage, has the prosecution proved its case beyond a reasonable doubt to enable the Court to safely convict the child offenders? The duty of the Court at the end of the defence case is provided under s.182A of the CPC. The Court will now consider the 20 defence version in light of the prosecution evidence, whether it has raised a doubt on the prosecution case. The accused persons were the only defence witnesses i.e. SD1 and SD2, respectively, and they gave evidence under oath. 25 [70] OKT1 was a Pegawai Waran II at Kem Rejimen Ke-3 Artileri Diraja (RAD), Kamunting whose designation was Penyelia Woksyop at the material time. OKT1 gave evidence that: i. on 10.10.2021, he had wanted to meet the deceased to discuss about the alleged affair with his ex-wife 30 ii. he saw the deceased’s car on the way there and asked OKT2 who was driving to follow the deceased’s car; iii. they waited for the deceased at his house; iv. when he finally met the deceased at the latter’s house, the deceased attacked him with a broomstick; v. he managed to gain hold of the broomstick and told the deceased to get into the front passenger seat of his car; vi. he carried the broomstick after seizing it from the deceased; 5 vii. he denied that the deceased was handcuffed before they left the house; viii. after driving around for about 1.5 hours, and questioning the deceased in his car, they went to SP13’s house to rest there; ix. he realised that he did not have any evidence to back up his 10 accusation and therefore, they left SP13’s house; x. on the way home, the deceased requested that they leave him by the roadside; xi. that was the last time he saw the deceased and denied he killed the deceased; 15 xii. the following day on 11.10.2021, OKT1 wanted to visit his relatives in Kedah and Perlis as he and his assistant by the name of Ehsan could work on alternate days (bergilir); xiii. on 12.10.2021, he left the Nissan Almera at his relative’s house in Kedah to avoid police roadblocks because of the 20 MCO’s prohibitions; xiv. he was detained by the police on 13.10.2021 and beaten up to make him confess to the crime; xv. the deceased had a police case regarding drugs and some one wanted him dead; 25 xvi. the police had similar gari Siam like the one found on the deceased, and in fact the Investigation Officer (SP23) had a similar key that could unlock the gari Siam; xvii. he was not fleeing from the police after 10.10.2021. [71] OKT2 was the owner of a carwash in Kg. Jana Sambungan, Taiping. He became friends with OKT1 as the latter would often go to OKT2’s carwash to get his car washed. He was used to taking OKT1’s car from the camp as directed by OKT1 and bring it over to his carwash. He gave evidence similar to what OKT1 had stated as outlined 5 above. Additionally, he told the Court that: i. on 10.10.2021, he merely accompanied OKT1 when the latter wanted to follow the deceased’s car; ii. when the deceased and OKT1 had an altercation at the deceased’s compound, he stepped in to pacify them 10 (leraikan); iii. OKT2 got into the driver’s seat but before he left the deceased’s house, he received a call from an unknown number and because of that, they were a bit delayed in leaving the house; 15 iv. they went to SP13’s house where the deceased discussed things with OKT1 but he did not hear them as he was smoking outside the car; v. later, OKT1 wanted to return home and therefore, they left SP13’s house; 20 vi. on the way home, the deceased requested that they leave him by the roadside; vii. after he was arrested by the police, he was beaten up to make him confess; viii. he did not show the police any of the evidence allegedly 25 pointed out by him; ix. the police went to his house and took a pair of his clothes and threw them into Sg. Rantin; x. he did not know the deceased and did not kill him. [72] The learned DPP submitted that both their defences were bare denials and an afterthought. The accused persons had never during the prosecution case suggested that the deceased and OKT1 met to discuss their problem amicably or that the deceased had attacked OKT1 with a broomstick while outside his house. It was also never 5 suggested that the police beaten them while in remand or that their signatures on the various Borang Bongkar were not given voluntarily. Additionally, OKT1 had never produced his aunt or relatives who he alleged had booked the hotel room for him while he visited them during the few days before his arrest. While the 10 Court could not draw any adverse inference from failure to call any witness by the defence, nevertheless the failure to call a particular witness is a matter which the Court may take into account in assessing the weight of evidence (without drawing any adverse inference) especially so when the prosecution had probably no 15 means of knowing that they might have any relevant evidence to give until the accused himself came to give evidence: PP v Tan Gong Wai & Anor [1985] 1 MLJ 355. [73] In the case of Megat Halim Megat Omar v. PP [2009] 1 b 5], Abdull 20 Hamid Embong JCA held that: “… [63] Although in our criminal jurisprudence, there is no burden on an accused person to prove his innocence but merely for him to raise a reasonable doubt as to his guilt, it is trite that his defence should be put 25 to the prosecution at an early stage during the prosecution case. Failure to do so may move the trial court to dismiss a particular line of defence as an afterthought, or a recent invention as happened in this case. [64] Raja Azlan Shah CJ (Malaya) (as His Highness then was) in Wong Swee 30 Chin v. PP [1980] 1 LNS 138; [1981] 1 MLJ 212 puts this principle in these now famous words: ... there is a general rule that a failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of a witness's testimony. [65] In our adversarial system, that principle is applicable in both civil and criminal trials. 5 [66] The appellant's defence can be ascertained not merely from his own evidence but also the line of cross-examination of the prosecution's witnesses (see Kuli & Ors v. Emperor AIR [1930] Cal 442, cited in PP v. Dato Seri Anwar bin Ibrahim (No. 3) [1999] 2 CLJ 215). This has been 10 termed as a rule of essential justice. [Emphasis added] [74] Although they claimed that the police had framed them but they could not give any reasons why the police would do so. And despite 15 them denying ever volunteering any information leading to the recovery of the items, the Court did not rely on s.27 of the Evidence Act 1950 but considered their conduct under s. 8 of the same as relevant evidence against both accused. 20 [75] In Ali Tan Bin Abdullah v PP [2013] 2 MLJ 676, the appellate court held: “[25] Indeed, mere denial or presenting a bare story of innocence, such as in the circumstances of the present case, cannot amount to reasonable doubt. The court's acceptance of the explanation offered by an accused person 25 must be based upon reason and common sense, and cannot be illogical or irrational. The existence of reasonable doubt is dependent upon the totality of the evidence and on an examination of all the evidence in a fair and reasonable manner and not in isolation. [Emphasis added] 30 [76] I refer to the case of often-cited case of Ganapathy a/l Rengasamy v PP [1998] 2 MLJ 577 which states: “It needs to be remembered that however weak a defence may be, trial judges being judges of both fact and law should not just brush aside the defence on 35 the basis that the prosecution witnesses are to be believed and not the defence. Where the law casts the onus of giving an explanation upon an accused person, and the explanation is given, which is consistent with innocence, the court is duty bound to consider whether it might reasonably be true, although not convinced of its truth. On the issue of the court’s duty to consider the defence, the age-old decision in Mat v. PP [1963] MLJ 263 is still good law as it was then. This is followed by the Supreme Court in 5 Mohamad Radhi bin Yaakob v. PP [1991] 3 MLJ 169”. [Emphasis added] [77] I had applied the principle in Mat v PP (supra) and took into consideration the limb that even if the Court did not believe the explanation of the accused persons, the Court must still go one step 10 further that the version though not believable, it was nevertheless possible because it has raised a doubt on the prosecution case, they must be acquitted. The deceased may have asked to be released but it did not make sense because according to OKT1 they had sort of parted on good terms. But SP13 himself saw the deceased was 15 under restraint with the handcuffs and he was frightened by wht he saw. It was as if he had a foreboding feeling that something bad would happen to the deceased. After listening to their evidence, scrutinising them and testing against the prosecution version, the Court found that the accused persons had not raised any doubt on 20 the prosecution case. [78] It is trite law that the circumstantial evidence must not be capable of any other interpretation of any other meaning other than to point to the irresistible conclusion that the child offenders had perpetrated 25 the crime against the deceased. From the totality of the evidence adduced by the prosecution, the Court found that the pieces of evidence when taken together do point to both accused persons as the perpetrators of the crime. Therefore, the prosecution had proved beyond reasonable doubt that OKT1 and OKT2 in furtherance of 30 their common intention had committed the crime of murder and caused the death of the deceased on 10.10.2021 at the place and time as stated in the charge, read together with s. 34 of the Penal Code. I found both OKT1 and OKT2 guilty of the charge and convicted them accordingly. 5 [79] I have considered the submissions and case laws cited by the parties. However, I was not persuaded by the submissions of the counsel for the accused persons. Looking at the extent of the injuries sustained by the deceased, one would think that the 10 perpetrator had the necessary mens rea to commit the crime of murder as the injuries were sufficient in the ordinary course of nature to cause death. SENTENCE 15 [80] The DPP pressed for the death sentence due to the very serious nature of the offence. The public interest factor should be the utmost consideration by the Court. The accused persons had made preparations to kill the deceased and then viciously stabbed him 4 times with the intention that death would be immediate. Moreover, 20 OKT1 was an army officer who should have been protecting the public but he put the law into his own hands and killed his own friend. [81] In his mitigation, the first accused aged 39 years pleaded for an imprisonment sentence on the ground that he was a former public 25 servant with a good standing and did not have any disciplinary problems. He had been separated from his children 3 children and this experience had thought him hard lessons about life. He had no previous conviction record and had been sacked by the army was under a lot of mental pressure due to this case. However, I noted that he had not shown any remorse for his acts against the deceased. [82] In his mitigation, the second accused aged 36 years pleaded for 5 leniency on the ground that he has been married and has a child aged 14 years. Unfortunately, from my assessment of the evidence against OKT2, he should have done his part by preventing OKT1 from committing the crime but instead he admitted he was “merely” there and therefore I rejected his plea that he should not be heavily 10 penalised. As s.34 makes no distinction between any of the perpetrators of the crime, I did not find that OKT2 should be treated any differently from OKT1. [83] SP10 spoke in court about the difficulties she and her daughter 15 faced because she had to raise her child alone after her husband’s death, and her child has been under a lot of stress and trauma. She prayed for the death sentence against both accused persons. [84] Having heard from the parties, and taking into consideration all 20 factors, I found that the only punishment suitable to be meted out to both accused persons was the death penalty. Therefore, I sentenced both accused persons to be hanged by the neck till dead. CONCLUSION 25 [85] After considering all the evidence before it, this Court found that the prosecution had proved its case beyond a reasonable doubt against both accused and convicted them for the offence of murder under s.302 of the Penal Code read with s.34 of the same Code. Due to the grave nature of the offence and on the facts, the Court sentenced both accused to death by hanging. Order accordingly. 5 Dated on 29 April 2026 Sgd. 10 NOOR RUWENA BINTI MD. NURDIN Judge High Court of Malaya, Taiping 15 Perak Darul Ridzwan \ 20 For the Public Prosecutor: DPP Sally Chay Mei Ling 25 Pejabat Timbalan Pendakwa Raya Negeri Perak, Taiping For the Child Offenders: 30 Mr. Muhammad Izwan Bin Ishak Messrs. Amirul Shahidda & Co., Ampang 35