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

This Grounds of Judgment has been prepared in respect of the Notices of Appeal filed on 28.2.2026 by both accused persons, Mohd. Hafidz Bin Ibrahim (hereinafter referred to as “OKT1”) and 20 Muhammad Ahmad Bin Md. Yusoff (hereinafter referred to as “OKT2”) against this Court’s decision on 27.2.2026. Both of them were found guilty and convicted on the charge of murder and sentenced to death. The charge reads as follows: 25 “Bahawa kamu bersama-sama pada 10 Oktober 2021 di antara jam 5.00 petang hingga 10.50 malam bertempat di kawasan hutan di Jalan Kubu Gajah – Lenggong, Mukim Hulu Ijok, di dalam Daerah Selama, di dalam Negeri Perak telah membunuh Mohd. Zaki bin Md. Aluwee (No. KP:790722-03-5053), dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di 30 bawah seksyen 302 Kanun Keseksaan [Akta 574] dibaca bersama seksyen 34 Kanun yang sama.”.

OKT1 was an army officer whereas OKT2 was a carwash owner and friend of OKT1. On 10.10.2021 at around 3.00 pm, OKT1 and OKT2 arrived at a house in Taman Ngah Ibrahim, Matang, Perak 5 belonging to his friend, Mohd. Zaki Bin Aluwee (hereinafter referred to as “the deceased”). They were in OKT1’s blue-colored Nissan Almera bearing registration number WC9494K driven by OKT2. The deceased was not at home and so, they left the place and drove around the area for a short while until the deceased returned home 10 driving a blue car. They parked in front of the house next to the deceased’s house, came out of the Nissan Almera and waited for him to come out. The scene was captured by a CCTV recording that was affixed at the front of the next house to the left of the deceased’s, which happened to belong to SP11, the deceased’s 15 nephew.

As soon as the deceased had parked his car, OKT1 who was wearing a red-colored T-shirt walked towards the gate of the former’s house with a metal-like object behind him. The 2 men could 20 be heard arguing as their raised voices were captured by the CCTV recording (“the video”). OKT2 was seen standing behind the Nissan Almera. Then OKT2 walked towards them and appeared to have broken up their fight. The deceased was directed to get into the front passenger seat of the Nissan Almera while OKT1 sat at the back. 25 OKT2 drove the car away from the deceased’s car.

At around 5.30 pm, they arrived at the house of OKT1’s friend SP13 in Kg. Anak, Kurau. SP13 was working at his durian orchard about 30 minutes away when he received a telephone call from OKT1 informing that he was waiting at the former’s house. SP13 told him to wait as he would be back in 25-30 minutes time. Then SP13 arrived home at around 6.00 pm riding his motorcycle. He saw both OKT1 and OKT2 standing outside the blue Nissan Almera. OKT1 5 told SP13 he had caught the man who allegedly had an affair with his ex-wife. Then OKT1 opened the door of the driver’s side and showed him the deceased who was seated at the front passenger seat. The deceased’s hands were handcuffed at the back and there was some dried blood on the right cheek and eyebrow. The 10 deceased glared at SP13 and uttered “Encik!”. SP13 was afraid and immediately shut the car door. SP13 advised OKT1 not to do anything against the law and asked him to leave. OKT1 wanted to borrow from SP13 his 2 motorcycles but the latter refused. Thereafter, they left in the Nissan Almera and SP13 never saw the 15 deceased again. SP13 had never met the deceased and OKT2 prior to the incident.

The deceased did not return home that night and his family members were getting worried. His wife, SP10, who worked in Negri 20 Sembilan at that time alerted SP11 about her missing husband. After SP11 returned home, he replayed the CCTV video. SP11 sent a copy of the video to SP10 (P83C). Upon seeing the content of the video, SP10 forwarded it to SP14, the ex-wife of OKT1. SP14 confirmed that it was her ex-husband who was seen wearing the red 25 T-shirt in the video. SP14 then messaged OKT1 asking him about the video and why he did that. He replied to the message only to say he was sorry, “halalkan makan minum” and asked her to take care of their children.

SP11 lodged a police report the following morning on 11.10.2021 (P82) regarding the kidnapping incident. His father handed over a Sandisk Ultra card containing the video recording to SP12 on 13.10.2021. The police tracked down OKT2 on 12.10.2021 at 6.30 pm and he was arrested to assist in the investigations into the 5 kidnapping of the deceased.

On 12.10.2021 at about 10.30 pm, pursuant to interrogations by the police, OKT2 led them to where the deceased’s body was left which was at a clearing in the woods at Jalan Kubu Gajah – Lenggong, 10 Hulu Ijok, Perak (refer to the map in Exhibit P131). The deceased’s hands were handcuffed at the back and he appeared to have multiple stab wounds on his decomposing body. OKT2 on the afternoon of 14.10.2021 led the police to the places where he had thrown away his clothes, part of a broken key-flag (from the handcuff 15 on the deceased’s hands), a long parang and the left pair of the deceased’s slipper.

A postmortem was done by the pathologist SP21 on 14.10.2021, where the cause of death was stated to “Multiple Stab Wounds to 20 the Chest and Abdomen”. Samples of maggots and fly eggs found on the deceased’s remains were sent for analysis. It was estimated that from the age of the maggots that the time of death was four (4) days earlier i.e. some time on 10.10.2021. 25 [9] On 13.10.2021 at 6.45 pm, the police arrested OKT1 at a hotel in Kaki Bukit, Perlis while his car was seized from a relative’s house in Yan, Kedah on the same night. OKT1 then led the police back to his 5 room at Kem Kamunting to retrieve the items of clothing that he wore on the day that he was last seen with the deceased.

Investigations revealed that in September 2021, after their divorce, OKT1 had confronted his ex-wife about her purported affair with his 5 friend the deceased which she vehemently denied. The motive for the killing was the purported affair between the deceased and OKT1’s ex-wife.

The prosecution relied on circumstantial evidence to prove its case 10 that the accused persons had murdered the deceased. However, the accused persons denied any involvement in the murder of the deceased and alleged that as he (the deceased) was involved in a drugs offence and the case was on-going in court, there were people who wanted him dead. 15 THE PROSECUTION CASE [12] The prosecution called 23 witnesses to prove its case. The order of the prosecution witnesses at the trial was as follows: i. Konst. Mohammad Nazri Bin Abdul Rahman, Photographer (SP1); 20 ii. Kpl Mohd Suzairi Bin Aluwi, Storekeeper (SP2); iii. Abdul Hadi Bin Abdul Rahim, Science Officer (SP3); iv. Sjn (B) Hashim Bin Ibrahim, Storekeeper (SP4); v. Sjn Mohd. Nor Khairol Fazli Bin Nordin, Photographer (SP5); vi. Chan Xin Yi, Chemist (SP6); 25 vii. L/Kpl Muhammad Arief Bin Marhalim, Photographer (SP7); viii. I207068 Muhammad Fahmi Bin Mohd Asri (SP8); ix. I128137 Pegawai Waran II Zamri Bin Abdullah (SP9); x. Norfadzlina Binti Abd Talib, Deceased’s wife (SP10); 6 xi. Amirul Afiq Bin Zainuddin, Deceased’s nephew (SP11); xii. Insp. Muhamad Rizal Bin Nari, Officer in Charge of Station (SP12); xiii. Amran Bin Sarit, OKT1’s friend (SP13); xiv. Hairiah Binti Saarani, OKT1’s ex-wife (SP14); 5 xv. Hasmidah Binti Aluwee, Deceased’s sister (SP15); xvi. Hazwani Binti Md. Aluwee, Deceased’s sister (SP16); xvii. ASP Nur Farah Hanim Binti Damin, Forensic Officer (SP17); xviii. Insp. Thanabalan A/L Krishnan, Arresting Officer (SP18); xix. ASP Mohd Zaid Bin Mohd Salleh, Arresting Officer (SP19); 10 xx. ASP Jalizulham Bin Abdullah, Arresting Officer (SP20); xxi. Dr. Murali Narayasamy, Pathologist (SP21); xxii. Insp. Muhammad Isminhaziq Bin Ismail, Investigating Officer (SP22); and xxiii. ASP Nurul Hadi Bin Che Das, Investigating Officer (SP23). 15 [13] Except for SP10, SP11, SP13 and SP14, all the other prosecution witnesses gave formal evidence of their roles in the case. ISSUES FOR CONSIDERATION OF THE COURT [14] The prosecution must prove these 4 ingredients of the offence of 20 murder in order for the defence to be called on that charge, as follows:

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

the death of the deceased was due to the injuries sustained;

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

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

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.

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.

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.

Incriminating behaviour of the accused.

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:

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

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

An admission is a statement oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which’s made by any of the persons and under the circumstances hereinafter 20 mentioned,

A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence. … 25 [29] In sum and in the context of the present case, the appellant’s admission to his friend/colleague SP18 that he killed the deceased, in our judgment, is relevant evidence. It must be mentioned too that SP18 was not a person in authority in relation to the appellant. We find no evidence 30 of that. We also find that there is no evidence of any inducement, threat or promise or any oppression against the accused, appellant. It is evident therefore that the admission was voluntarily made. It bears mentioning that at that point of time, the appellant was not even arrested. Thus, the statements were clearly a full admission of guilt (see Ho Sek Kong v. PP [2011] 35 6 CLJ 522)…” [Emphasis added] [48] 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: Chang Kim Siong v. PP [1968] 1 MLJ 36 (FC). The prosecution relied on the admission by OKT1 to 5 his ex-wife when he asked her apologised and asked her to take care of their children to show his involvement in the crime and his guilt. This was not the only evidence against OKT1 as I have discussed above, and will also touch upon s.34 of the Penal Code in regard to OKT2’s involvement in the crime. 10 [49] On the issue of credibility of the prosecution witnesses, from my observation of SP13, I found that he was a truthful witness and there was nothing inherently incredible about his evidence that the Court should not accept his evidence in toto. His evidence was the most important link in the prosecution case to tie him with the murder of 15 the deceased. There were also nothing in the testimonies of SP10, SP11 and SP14 that the Court should not accept, although they could be said to be interested persons. I found that their evidence were factual and neutral and no biasness at all. Their evidence corroborated each other’s. At this stage, it is the duty of the Court to 20 sift through the testimonies of the prosecution witnesses and decide which evidence is credible and which evidence is not: Dato’ Mokhtar Bin Hashim v PP [1983] 2 MLJ 232. The judge must assess the credibility of a witness by taking into account their motives, demeanour and consistency under cross-examination. 25 Additionally, I have scrutinised the evidence of the formal prosecution witnesses and found that they were credible evidence which the Court accepted. Even the cross-examination of the formal prosecution witnesses were quite smooth because the defence seemed to accept their evidence, from my observation of the line of questioning. The defence put to the prosecution witnesses were that the accused persons were not involved in the crime because the deceased was a wanted man by some people since he was involved 5 in some drugs activities. It was the defence contention that the deceased was left by the roadside to go back on his own after they left the house of SP13 that evening. I will discuss this further under the topic of Defence Case. 10 v. The “last seen” principle [50] This principle simply means that should a person who is found dead after being last seen alive with an accused person, the accused is presumed to be responsible for the death of the deceased. Therefore, the accused bears the evidentiary burden to explain the 15 circumstances of the disappearance of the deceased. It is a rebuttable presumption which may be displaced if the accused could offer a credible explanation in regard to the disappearance. However, if a significant time gap exists between the time of death and the time when they were last seen together, or if there are other 20 evidence to suggest that another person could have caused the death, the presumption would fail. This principle, however, could not be the only consideration by the Court to convict a person. There must be some corroboration of the prosecution evidence in order to successfully invoke the last seen principle. 25 [51] In the case of PP v Muhammad Khairunanuar Baharuddin & Another Appeal [2025] 1 MLRA 65, where the Federal Court speaking through Nordin Bin Hassan FCJ, had considered the “last seen” principle. The case summary which contained the facts of the case, inter alia, was as follows: “(1) The facts of this case showed that the respondent had the opportunity to inflict injuries on the deceased. The respondent was the last person seen with the deceased while the deceased was still alive 5 and, more importantly, the respondent's conduct after the deceased's death showed the act of covering the offence committed, which included: bringing the deceased to Idzham Clinic through the back door, requesting Dr Mohd Idzham ('PW3') to issue a death certificate so he could bury the deceased and introduced himself as a policeman when PW3 refused to 10 accede to his demand; requesting the post-mortem to be carried out only on the chest of the deceased; and asking PW7, the mother of the deceased, to request her doctor friend to change the post-mortem result and the 29 injuries, particularly on the deceased's head which was not accidental. All of these clearly showed that the respondent had the 15 intention to inflict the injuries on the deceased. The inference from the surrounding circumstances, including the fact that the deceased had informed her father and stepmother, when she was in their custody that it was the respondent who caused the bruises on her legs and thighs, showed that the respondent had the intention to inflict the injuries on the 20 deceased. (paras 14 & 35) [52] In the present case, there were independent evidence that were adduced by the prosecution which the Court could rely on in determining whether a prima facie case has been proved. SP13 had seen the deceased together with both accused persons at 6.30 pm 25 on 10.10.2021. The Court found that the larva was collected by the Forensic Department of Hospital Raja Permaisuri Bainun on 14.10.2021 as shown in P124 for estimation of time of death. Based on the age of the larva, the time of death was estimated by SP21 to be at least 4 days prior to the collection of the larva from the cadaver, 30 i.e. some time on 10.10.2021. The deceased was last seen alive on 10.10.2021 at 6.30 pm and he died also on the same day, after 6.30 pm. I concluded that it was not a significant time gap between the time of last seen alive and the time of death. Hence, the last seen principle was applicable in this case. vi. Motive [53] Although it is unnecessary to prove motive in a murder case, this Court will lay out these facts as they are relevant to the findings 5 therein. OKT1 and SP14 were married for 9 years before their divorce in 2021. They had 3 children from the marriage. Prior to the divorce, there were 2 police reports lodged against him that were tendered by the defence as D1 and D2. A third police report was lodged by her the night before their divorce in May 2021 (D3). They 10 were allegations of domestic violence against her ex-husband. He too had lodged a police report against her upon their divorce, alleging that he had proof that she had been unfaithful and had extra-marital affairs with other men (D4). OKT1 was a loving father and at the same time he was a hot-tempered husband to her. SP14 15 denied that she had ever been unfaithful and had been to those places he alleged in D4. She only knew the deceased by name and had been shown his photos by her husband. [54] SP14 explained that she could not produce the messages in her 20 telephone because it was stolen from her home after she was divorced; it did not appear as if her house had been broken into according to SP14, but it happened when her children were at OKT1’s house and she had been sleeping alone at that time. A police report was lodged after she got her sister to help her. SP14 25 told the Court that in regard to his allegation that she had been to Pangkor, her explanation that she was with her husband at that time on the island. On the allegation that she was with a man at a hotel in Taiping, SP14 denied it and said she did not know why he accused her because he knew she was unfamiliar with Taiping. She was from Kajang and when she lived in Taiping for a while in 2019, SP14 said she had used Google map and Waze to find some nearest landmarks if she needed to go to an unfamiliar place there. 5 [55] SP10 in her evidence told the Court that in September 2021, she was working in Hospital Tuanku Jaafar, Negeri Sembilan. She would meet her husband about once a month as he lived in Taiping after retiring from the army and took care of their only child. She said 10 he would go out in the mornings to work on his orchard in Bukit Gantang. She last met him in late September 2021. They would make it a point to have dinner together with their daughter by making video calls while eating. They did not have any marital problem and she did not believe her husband had any enemies either. 15 [56] However, towards the end of September, she received a call and WhatsApp message from OKT1, whom she knew as her husband’s friend. But she had never met him. OKT1 alleged that her husband was having an affair with his ex-wife. OKT1 gave SP10 his ex-wife’s 20 number and name and told her to call SP14 if she did not believe him. He also told her that his ex-wife worked at the X-Ray department of Hospital Tuanku Jaafar. She said she did not believe him unless he had proof. Then OKT1 deleted the messages but SP10 had made a screenshot of the WhatsApp message purporting 25 to be evidence of his ex-wife’s affair with her husband. SP10 then called SP14 and told her about OKT1’s allegations. SP14 told SP10 about her marital problems and pleaded her not to tell him of her whereabouts because OKT1 was trying to find her. She said she was not working at the hospital but at a clinic in Jelebu. SP14 swore that she did not know the deceased and only knew his name from her ex-husband. SP10 then asked the deceased about OKT1’s allegations but he denied that he had any affair with his ex-wife and neither did he knew her. Thereafter, SP10 did not think anything 5 more about it since her husband had denied the allegations. [57] On 10.10.2021, at 6.00 pm she received a call from her daughter informing that the deceased was not at home but the cars, motorcycle and car keys were outside near the car. The windscreen 10 of the white car was shattered. SP10 told her daughter to wait as he might have gone out. Then that night as her husband still had not come home, she called her nephew SP11 who lived next door to their house in Taiping that the deceased was missing. The evidence from SP11 was that he first checked the CCTV at his house via 15 telephone and saw the 2 men coming to their house at 3.00 pm since he was working. SP11 then forwarded a copy of the video showing the 2 men taking the deceased away from his house that afternoon. He arrived home around 8.00 pm and checked the CCTV recording again, he then made a copy of the videos and saved it 20 onto a SanDisk card and asked his father to hand it over to the police the next day as he would be working on that day. [58] SP10 was working until 13.10.2021 as she had already planned to return to Taiping since her husband was required to attend court on 25 that day. SP11 advised her to continue working as they had not received any news yet about her missing husband. However, while she was travelling to Taiping on 13.10.2021 at around 8.30 pm, she was informed that the police had found her husband’s remains. In regard to the drugs case against her husband, SP10 informed the Court that he had told her he was “framed”. SP10 identified her husband’s voice saying “saya tiada masalah dengan kamu” when the video was played in Court. SP10 also stated that it appeared her husband went into the Nissan Almera unvoluntarily because OKT1 5 seemed to be holding a weapon which looked like an iron rod. [59] From the totality of the evidence given above, the Court concluded that OKT1 had a motive to kill the deceased as he was under the impression that the latter had an affair with his ex-wife. Despite their 10 already being divorced, he could not “move on”. vii. Common intention to commit murder [60] In Muhammad Khairunanuar’s Case (supra), the Federal Court referred to Ratanlal & Dhirajlal, The Indian Penal Code, 32nd 15 Edition, on p 1274, where the issue of intention in a murder case was discussed and explained as follows: "Intention how to be deduced − The intention is a question of fact which is to be gathered from the acts of the parties. The Law books as regards intention to the natural result of a man's act, and not to the condition of his mind. 20 So, when a normal man does an act, he should be credited with the intention of doing that which is inevitable consequence of his act. Further, the nature of intention has to be gathered from various circumstances, for instance, the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attending upon death. In the absence of 25 any indication or circumstances to show that the particular injury inflicted by the accused was accidental or unintentional or that some other kind of injury was intended to be inflicted, the presumption would be that the very injury suffered by the deceased was intended. Mere absence of pre-meditation will not be enough to displace this presumption. The question 30 whether the offender entertained a particular type of intention or not is the question which is to be answered not from any direct evidence but from the proved facts and circumstances of the case. However, it should be borne in mind that intention with which an act should be found to have been committed is neither constructive nor presumptive in its character. Though it is true that the Court should not expect direct evidence of intention in every case and that a proper inference about existence of a particular intention can be made from the circumstances of the case, such circumstances should be such as would enable the Court to arrive at a conclusion beyond reasonable doubt that the 5 intention in question did exist. Evidence of motive is generally found to be capable of supplying good evidence about the nature of the intention to commit the particular act. The facts collateral to the main incident such as the manner and the method by which the offence was executed, possibility of the successful execution of the intended act, care taken by the accused 10 to eliminate the possible mistakes in carrying out the successful execution of the intended act are some of the facts which are likely to throw good light upon the actual intention with which the act was done." [Emphasis Added] [61] In PP v. Sanin Othman [2011] 1 CLJ 626 (CoA), the court held: 15 “[19] Since it is no easy task to establish the ingredient of intention it thus has to be established by inferences arrived at from the evidence made available. The evidence before the court was more than ample to establish that ingredient. To reiterate, the two injuries were caused by a dangerous instrument ie, a knife. The injuries were deep and never mere slash 20 wounds. With such wounds, which must have required great force, it would defy logic that the respondent did not intend to kill or cause serious injury on the deceased (Tan Buck Tee v. Public Prosecutor (supra). [20] It could never be overly emphasized that intention can be formulated on the spot. The time span spent in the shop, from the time he placed the knife 25 next to the neck of PW14, to the moment when the deceased appeared on the scene were not mere seconds. There was more than ample time for the respondent to formulate his intention to kill, or cause injury to someone, and that injury was sufficient in the ordinary course of nature to cause death in the event anyone gets in his way. 30 [21 Ratanlal & Dhirajlal's Law of Crimes, 24th edn., vol 11, Bharat Law House, New Delhi had authored: ... If from the intentional act of injury committed the probability of death resulting is high, the findings should be that the accused intended to cause death or injury sufficient in the ordinary course of nature to cause 35 death and the conviction should be murder.”. [Emphasis added] [62] In regard to the issue of common intention, I refer to the case of PP v Azilah Hadri & Anor [2015] 1 MLJ 617 (FC), there the Federal Court had discussed the same as follows: Common intention under s 34 of the Penal Code [98] Section 34 of the Penal Code provides that when a criminal act is 5 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 was done by him alone. The Supreme Court in (1) Namasiyiam (2) Rajindran

Goh Chin Peng, and (4) Ng Ah Kiat v Public Prosecutor [1987] 2 MLJ 336 at p 344 observed that: 10 In law, common intention requires a prior meeting of the minds and presupposes some prior concert. Proof of holding the same intention or of sharing some other intention, is not enough. There must be proved either by direct or by circumstantial evidence that there was (a) a common intention to commit the very offence of which the accused 15 persons are sought to be convicted and (b) participation in the commission of the intended offence in furtherance of that common intention. Where the prosecution case rests on circumstantial evidence, the circumstances which are proved must be such as necessarily lead only 20 to that inference. Direct evidence of a prior plan to commit an offence is not necessary in every case because common intention may develop on the spot and without any long interval of time between it and the doing of the act commonly intended. In such a case, common intention may be inferred from the facts and circumstances of the case and the conduct 25 of the accused (The Supreme Court (of India) on Criminal Law 1950– 1960 by JK Soonavala at pp 188–193). [99] It is trite that when s 34 of the Penal Code is alluded to in a charge for murder, there is no requirement to prove who actually or ultimately 30 caused the death of the deceased (Ong Chee Hoe & Anor v Public Prosecutor [1999] 4 SLR 688). In that case the court opined: In any case, the effect of invoking s 34 made it unnecessary to determine who exactly the actual doer of the offence in question was. In the Privy 35 Council decision of Barenda Kumar Ghosh v Emperor AIR 1925 PC 1, the court stated: Section 34 deals with the doing of separate acts, similar or diverse, by several persons; but if all are done in furtherance of a common intention, 40 each person is liable for the result of them all, as if he had done them himself. [100] The Court of Appeal in its judgment here when addressing the issue of s 34 had remarked the following: 5 Except for the words ‘individually and jointly’ mentioned by the learned trial judge in para 154 of the grounds of judgment, nowhere else did the learned trial judge address the acts or conduct of the appellants or the circumstances that give rise to or prove the prearranged plan to bring about the murder of the deceased … the absence of such finding by the 10 learned trial judge on the ingredient of common intention amounted to a misdirection by way of non-direction (Mahbub Shah). In fact, there was no evaluation of the evidence on the ingredient of common intention based on [2015] 1 MLJ 617 at 33the principles as stated in Lee Kwai Heong & Anor v Public Prosecutor [2006] 1 CLJ 1043. 15 … [103] Let us look at the evidence before us that may show the existence of a common intention, if any, as envisaged under s 34 of the Penal Code between the respondents to commit murder, with particular emphasis on the respondents being together at a few places and at certain material time. 20 [104] We start with the presence of both the respondents at Hotel Malaya on 18 October 2006, a fact caught on the hotel’s CCTV security system as fortified by PW58 who forensically identified the two images as those of the two respondents. Next was the evidence of PW1, confirming the respondents’ 25 presence at Baginda’s house on 19 October 2006, when the deceased was picked up in PW7’s car. These pieces of evidence were never denied by both of them except that the first respondent testified that he handed the deceased over to the second respondent at Bukit Aman whilst the second respondent said he last saw the deceased with the first respondent outside Baginda’s 30 house. [111] The second respondent’s car has to be the very vehicle that was used to transport the respondents and the deceased to Puncak Alam. 35 [112] The final piece of evidence, like a jigsaw puzzle, is the information received by the police from the respondents, strengthened by them leading the police independently and separately to the scene of crime. By logical deduction they must have been there earlier in order to successfully and unerringly pin-point the location of the scene of crime; 40 with the second respondent’s car as the mode of transport. And all the evidence point to the respondents, not only having gone up the hills of Puncak Alam at one point of time, but had gone up with the second respondent’s car. [Emphasis added] [63] Lastly, I refer to the case of Khoo Hi Chiang v. PP and Another Case [1994] 2 CLJ 151, the Federal Court stated, inter alia: 5 “it was further argued on behalf of both the appellants that the prosecution had failed to establish beyond reasonable doubt a common intention between the two appellants as laid down in s. 34 of the Penal Code which reads:

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