Saravanan A/L Rajagopal v Pendakwa Raya (A-05(M)-274-07/2017 & A-05(M)-276-07/2017)

GANESAN A/L KUPUSAMY ...APPELLANTS AND PUBLIC PROSECUTOR ...RESPONDENT (In The Matter Of The High Court Of Malaya At Ipoh Criminal Trial No. 45B-2-03/2016 & 45B-3-03/2016

Saravanan A/L Rajagopal

Ganesan A/L Kupusamy) CORAM: AHMADI HAJI ASNAWI, JCA ABDUL RAHMAN SEBLI, JCA KAMARDIN HASHIM, JCA JUDGMENT [1] The appellants were charged individually on separate dates, with two different case numbers, with the murder of the deceased, one Gobinathan a/l Kumaravellu, under s.302 of the Penal Code ('PC') read with s.34 of the same. The charge against each of them were identical. [2] On the application of the learned Deputy Public Prosecutor ('DPP'), the charges against both the appellants were heard together. The charge (as against the $ 1^{\mathrm{st}} $ appellant) reads: "Bahawa kamu, bersama-sama (1) rakan bernama Ganesan a/l Kupusamy No. K.P 700217-08-5293 pada 5 Julai 2015 jam lebih kurang 12.00 tengah hari hingga 1.00 petang di belakang Restoren Nashmeer, Laluan Klebang Restu 2, Medan Klebang Restu, Chemor, Ipoh, Perak, dalam Daerah Kinta, di dalam Negeri Perak Darul Ridzuan, telah melakukan pembunuhan dengan menyebabkan kematian ke atas Gobinathan a/l Kumaravellu No. K.P 710905-08-6221 dan oleh yang demikian, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan dan dibaca bersama Seksyen 34 Kanun yang sama". [3] At the conclusion of the trial, both the appellants were convicted of the offence and were consequently sentenced to suffer the death penalty in accordance with s.277 of the Criminal Procedure Code ('CPC'). [4] The appeals by both appellants were in respect of their convictions and sentences. [5] We heard their appeals and at the end of the hearing, after due consideration of the issues raised and submissions made by both the parties, we dismissed the $ 1^{\mathrm{st}} $ appellant's appeal and correspondingly though allowed the $ 2^{\mathrm{nd}} $ appellant's appeal. We now offer our grounds. Case For The Prosecution [6] The prosecution relied on the evidence of SP-1 (Kesavan a/l Gurappan) and SP-2 (Anberson a/l Mathiyalagan) to prove its case. [7] SP-1 testified that on the morning of 5.7.2015, he picked up the $ 1^{\mathrm{st}} $ appellant from his house using his motorcycle, number AJE 2672, and took him to Nashmeer Restaurant in Klebang Restu, Ipoh (as indicated in the charges). While there, SP-1 further obliged the $ 2 ^{n d} $ appellant's request through the mobile phone to pick him up and bring him to the restaurant from a petrol station, located about 5 minutes away from the said restaurant. All the three of them allegedly were at the restaurant to meet a scrap metal dealer. [8] Soon after, SP-1's friend, SP-2, joined them at the table. [9] The deceased (Gobinathan a/l Kumaravellu) was SP-1's former employer. [10] SP-1 next saw the deceased circling the area in a white Proton Waja. [11] Still later, the deceased was again seen circling the area, now on a motorcycle. [12] At this juncture the $ 1^{\mathrm{st}} $ appellant then borrowed SP-1's motorcycle and left the restaurant with the $ 2^{\mathrm{nd}} $ appellant. [13] About 10 minutes later both the appellants came back to the restaurant. SP-1 now noticed a badminton bag in the carrier of his motorcycle. [14] Meanwhile the deceased was seen entering a hardware shop, a few shops away from the restaurant. [15] Both the appellants then left the restaurant, again using SP-1's motorcycle and proceeded towards the direction of the hardware shop. [16] Shortly thereafter, SP-1 saw the deceased running into the restaurant shouting for help, being pursued by the $ 1^{\mathrm{st}} $ appellant wielding a parang with a long blade. The deceased exited the restaurant through the back door into the back lane. SP-1 also saw the $ 2^{\mathrm{nd}} $ appellant riding his motorcycle and went past the restaurant towards the back lane. [17] SP-1 further testified that he, SP-2 and others who were in the restaurant rushed to the back lane to see what was happening. He saw the $ 1^{\mathrm{st}} $ appellant strike two blows on the deceased hand with the parang, whilst the $ 2^{\mathrm{nd}} $ appellant sat on the motorcycle and watched the attack. SP- 1 added that he and SP-2 panicked and left the restaurant within 5 minutes of the incident and proceeded to SP-2's house at Sungai Siput. [18] SP-1 admitted in cross-examination that 3 weeks before the deceased's murder, the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ appellant had visited SP-1 at Indah Water Seri Klebang where SP-1 had worked there as a security guard for the deceased. This had angered the deceased who then parked his car in front of the $ 2^{\mathrm{nd}} $ appellant's lorry to prevent him from entering the place. Both the appellants and few others reacted by smashing the deceased's car windscreen. The deceased escaped by running out of his car. [19] The deceased blamed SP-1 for the incident and terminated his employment a few days later. [20] The testimony of SP-2 was on all fours with the testimony of SP-1. He corroborated SP-1's evidence that it was the $ 1^{\mathrm{st}} $ appellant who had slashed the deceased and that the $ 2^{\mathrm{nd}} $ appellant watched the incident, seated on SP-1's motorcycle. It was not put to SP-2 though that it was he and SP-1 who had jointly slashed the deceased as put to SP-1. Instead, it was put to SP-2 that only SP-1 had slain the deceased. [21] The thrust of the1st appellant's defence as put to SP-1 was that the $ ^{1st} $ appellant was not involved in the murder of the deceased and that the deceased was slashed by both SP-1 and SP-2. It was also put to SP-1 that he was at the restaurant on that day to meet the deceased whom he (SP-1) had earlier messaged to meet him there and that his (SP-1) intention was to exact revenge as the deceased had fired him from his job as a security guard. Nevertheless, SP-1 denied all the allegations put to him. [22] At the end of the prosecution's case, the learned judicial commissioner ('JC') found no issue with the identity of the deceased. She also found that the evidence of the pathologist (SP-3, Dr. Siti Zanariah binti Md. Naziri) regarding the nature of the injuries found on the person of the deceased particularly those on his head, showed that the deceased was slashed with the intention of causing his death. [23] The learned JC also found that the evidence of SP-1 and SP-2 was not shaken or broken in any way and going by their evidence it was established that it was the $ 1^{\mathrm{st}} $ appellant who had slashed the deceased to death. [24] The learned JC also found that there was sufficient evidence that the $ 1^{\mathrm{st}} $ appellant had slashed the deceased to death in furtherance of the common intention between him and the $ 2^{\mathrm{nd}} $ appellant to kill the deceased. [25] Finally, the learned JC ruled that on a maximum evaluation of the evidence as adduced, the prosecution had established a prima facie case against both the appellants, which if left unrebutted, would warrant their convictions. The Defence Of The $ 1^{\mathrm{st}} $ Appellant [26] The $ 1^{\mathrm{st}} $ appellant gave evidence on oath. [27] The $ 1^{\mathrm{st}} $ appellant said that at the material time he was working for the $ 2^{\mathrm{nd}} $ appellant, who was in the business of buying and selling scrap metal. [28] He agreed that SP-1 had picked him up that morning from his house and took him to Nashmeer Restaurant and thereafter SP-1 picked up the $ 2^{\mathrm{nd}} $ appellant. [29] The $ 1^{\mathrm{st}} $ appellant said that he and the $ 2^{\mathrm{nd}} $ appellant had come to Klebang Restu to meet a scrap metal supplier. Whilst they were having a meal at the restaurant, he saw the deceased circling around the restaurant on his motorcycle. [30] He then heard the $ 2^{\mathrm{nd}} $ appellant asked SP-1 if he had a parang. SP-1 replied he did. SP-1 then telephoned SP-2 to bring a knife to the restaurant. [31] When SP-2 came to the restaurant, SP-1 asked him if he had brought a knife, to which SP-2 replied affirmatively. [32] Then he heard them plotting to kill the deceased. He panicked and excused himself by going to the toilet. When he came out, he heard the deceased shouting for help and running to the back of the restaurant which opened to the back lane. [33] The $ 1^{\mathrm{st}} $ appellant said he went to the back lane and saw the $ 2^{\mathrm{nd}} $ appellant and SP-1 slashing the deceased. He was shocked and asked SP-2 to send him home. [34] That same night, the $ 2^{\mathrm{nd}} $ appellant came to his house and warned him that if he reported the matter, he would suffer the same fate as the deceased. It was for this reason that he had not put his version to SP-1 and SP-2 during cross-examination. [35] The other reason for not doing so was because of one Moses, a fellow inmate in Taiping prison, who had assaulted him at the behest of the $ 2^{n d} $ appellant and warned him not to implicate the $ 2^{n d} $ appellant during the trial. One Sjn. Mazlan from Taiping prison was aware of the same and would be able to confirm it. [36] The $ 1^{\mathrm{st}} $ appellant further alleged that he has been falsely implicated by the investigating officer (SP-7, ASP Nirmala a/p Arumugam) because of an incident involving her husband and himself. SP-7's husband had on one occasion came over to his house and shouted abuses at his father over a pawn ticket. PW-7's husband left his house when he approached him to beat him. [37] The $ 1^{\mathrm{st}} $ appellant agreed with the narrative of the incident involving the smashing of the deceased's car windscreen as alluded by SP-1. However, he said that it was the $ 2^{\mathrm{nd}} $ appellant and SP-1 who had shattered the said windscreen. He himself never did. [38] The $ 1^{\mathrm{st}} $ appellant's father, SD-2 (Rajagopal a/l Munisamy) testified that he and SP-7's husband had a misunderstanding over some pawn ticket a few years ago and SP-7 had falsely implicated his son with the murder of the deceased. [39] Meanwhile, SD-3 (Moses a/l Paramasivam) admitted that he had assaulted the $ 1^{\mathrm{st}} $ appellant at Taiping prison because the $ 1^{\mathrm{st}} $ appellant had uttered vulgarities at him. The assault has nothing to do with this case or that he was doing it upon the behest of the $ 2^{\mathrm{nd}} $ appellant. [40] Sergeant Mazlan bin Zakaria was subpoenaed but was not called to testify. The Defence Of The $ 2^{\mathrm{nd}} $ Appellant [41] The $ 2^{\mathrm{nd}} $ appellant testified that he was a scrap metal dealer. [42] He denied that he had slashed the deceased as alleged by the $ 1^{\mathrm{st}} $ appellant. [43] He agreed that he was at the said restaurant with the $ 1^{\mathrm{st}} $ appellant, SP-1 and SP-2 after being picked up and brought to the restaurant by SP-1 from the Mobil petrol station where he had earlier parked his lorry. [44] He said he came to the restaurant to meet a scrap metal dealer that SP-1 had arranged for him to meet. However, the scrap metal dealer did not show up. [45] About half an hour later, he received a call from his customer, an Indonesian called Man. At about the same time he saw the deceased riding a motorcycle in front of the restaurant. [46] Then he left the restaurant together with the $ 1^{\mathrm{st}} $ appellant on SP-1's motorcycle to meet his customer at a shop nearby. He bought copper wires from his customer and put it in a bag. [47] Then he realised that he had left his pouch containing his wallet at the restaurant. He went back to the restaurant to retrieve the pouch with the $ 1^{\mathrm{st}} $ appellant. [48] On the way back to make payment to his customer, the $ 1^{\mathrm{st}} $ appellant asked to be dropped off near the Maybank premises in the vicinity. [49] The $ 2^{\mathrm{nd}} $ appellant further testified that after paying his customer, he went back to his lorry and left the bag containing copper wires therein. He came back about 10 minutes later but did not see the $ 1^{\mathrm{st}} $ appellant near the Maybank premises or at the restaurant. [50] Instead he heard a commotion coming from behind the restaurant. He went to the back lane on SP-1's motorcycle and saw several people including SP-1, SP-2 and the $ 1^{\mathrm{st}} $ appellant there. [51] He called out to the $ 1^{\mathrm{st}} $ appellant, who then came to him. He proceeded to the Mobil petrol station where his lorry was parked together with the $ 1^{\mathrm{st}} $ appellant. He took his lorry and went home and asked the $ 1^{\mathrm{st}} $ appellant to return the motorcycle to SP-1. [52] The $ 2^{\mathrm{nd}} $ appellant admitted that 3 weeks prior to the deceased's murder, he had smashed the wind screen of the deceased's car. He also testified that in the same incident, the $ 1^{\mathrm{st}} $ appellant had used a knife to damage the same. He further denied that he had requested Mosses to assault and threaten the $ 1^{\mathrm{st}} $ appellant. [53] Put shortly, at the end of the hearing, the learned JC found that the defence of both the appellants had failed to raise a reasonable doubt upon the prosecution's case and correspondingly found that the prosecution had proven its case beyond a reasonable doubt against both the appellants. [54] Hence, both the appellants were found guilty of committing the offence and were convicted of the same thereof and consequently both were sentenced to suffer the death penalty. The 1 $ ^{st} $ Appellant's Appeal [55] The $ 1^{\mathrm{s t}} $ appellant raised the following grounds:

the learned JC erred in declining to allow learned counsel's application to recall SP-1 and SP-2 under s.425 of the CPC; and upon such refusal further declined learned counsel's application to discharge himself from representing the $ 1^{\mathrm{st}} $ appellant;

(ii) the learned JC erred when she found that the badminton bag which was brought to the restaurant when both the appellants returned to the restaurant on SP-1's motorcycle, contained the parang that was used to slash the deceased when in fact no evidence was adduced to indicate what was inside the said bag; and

(iii) SP-1 was an interested witness and therefore unworthy of credit. Our Decision First Ground - the learned JC's refusal to allow the recalling of witnesses under s.425 of the CPC [56] Learned counsel for the $ 1^{\mathrm{st}} $ appellant submitted that one Ranjit Singh was earlier the counsel representing the $ 1^{\mathrm{st}} $ appellant until the conclusion of the testimonies of SP-1 and SP-2. The said Ranjit Singh then had applied to discharge himself for no apparent purpose and was allowed by the learned JC. Thereafter, Mr. M. Saravanan was appointed by the court to act for the $ 1^{\mathrm{st}} $ appellant. Mr. M. Saravanan then applied to recall SP-1 and SP-2 under s.425 of the CPC, but was refused by the learned JC. Upon this refusal, the said Mr. M. Saravanan then applied to discharge himself. This application was also refused by the learned JC. Mr. M Saravanan went on to represent the $ 1^{\mathrm{st}} $ appellant until the conclusion of the trial. Learned counsel thus submitted that this had occasioned a great prejudice to no end to the $ 1^{\mathrm{st}} $ appellant. [57] The event was captured in the notes of evidence at pp. 102, 103, Jilid 2, Rekod Rayuan ('RR'). It shows, reproduced in extenso: "7 September 2016, 10.00 pagi Harris Ong, Timbalan Pendakwa Raya (TPR) bagi pihak pendakwaan. M. Saravanan untuk OKT-1 Charan Singh untuk OKT-2 Tertuduh-tertuduh hadir. Perbicaraan bersambung. Peguam OKT-1: Memohon untuk memanggil balik SP1 dan SP2 bagi pemeriksaan semula. Mahkamah: Apa soalan? Peguam: Saya tidak boleh beritahu mahkamah kerana nanti tiada elemen surprise. Mahkamah: Permohonan ditolak. Peguam: Memandangkan permohonan saya telah ditolak, saya mohon untuk discharge myself. Mahkamah: Circular: Apabila seseorang peguam bela dan peguam cara telah menerima lantikan mahkamah, peguam bela dan peguam cara tersebut tidak boleh menarik diri dengan sewenang-wenangnya dari perlantikan tersebut. Sebarang permohonan untuk penarikan diri hendaklah dibuat di mahkamah terbuka. Mahkamah: Application is not allowed." [58] It is apparent from the transcript that Mr. M. Saravanan had refused to disclose the purported questions to be ask to warrant the recalling of SP-1 and SP-2 even though he was probed by the learned JC. Mr. M. Saravanan also did not advance any reason why he would want to recall SP-1 and SP-2. [59] Section 425 of the CPC provides as follows: "Any court may at any stage of any enquiry, trial or other proceeding under this code summon any person as witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case." [60] Learned counsel frankly agreed that the powers conferred to the court under s.425 of the CPC, in particular, to recall and re-examine a witness already examined is discretionary in nature. As such there must be some basis for the court to exercise its discretion, the main consideration being the essentiality of the additional evidence of the recalled witness to the just decision of the case. This must be so as the underlying jurisprudence of calling or summoning any person as a witness or the recalling and re-examining of any witness already examined under s.425, CPC, must necessarily be anchored upon whether his evidence or additional evidence upon recall appears to be essential to the just decision of the case. Anything less will not be sufficient to meet the requirement under the said section. [61] Hence, the section calls for grounds or reasons for the proper exercise of the said discretion to indicate that the recall and reexamination of the witness already examined appears to be essential to the just decision of the case. [62] Now, the evidence showed that Mr. M. Saravanan did not proffer any grounds upon the need to recall SP-1 and SP-2, nor indicate the essentiality of the additional evidence of SP-1 and SP-2 upon recall to the just decision of the case. [63] Mr. M. Saravanan, when asked by the Court, even declined to reveal the purported questions he intended to ask SP-1 and SP-2 upon grounds of secrecy. He wanted to spring a surprise or two upon all the parties including the Court by keeping the questions up his sleeve. He told the Court "...saya tidak boleh beritahu Mahkamah nanti tiada elemen surprise...". In our view, this is an outmoded strategy, totally out of sync with the law and practise. [64] It is our judgment that in such event, the learned JC did not err when she refused Mr. M. Saravanan's application to recall SP-1 and SP-2. Clearly, on the facts, she was devoid of any basis to exercise her discretion in favour of the $ 1^{\mathrm{st}} $ appellant. We have equally examined the notes of evidence pertaining to the testimonies given by SP-1 and SP-2 and found that the examination of both the said witnesses were sufficiently comprehensive and competently executed by both the prosecution and the defence. Both SP-1 and SP-2 were also thoroughly cross-examined by the defence to the hilt, leaving no stones unturned. The correct questions were in place and both the appellants had in fact laid down their defence bare through the cross-examination of SP-1 and SP-2. The prosecution had also satisfactorily re-examined both SP-1 and SP-2 arising out of the cross-examination of both the witnesses. Hence, it is incumbent upon the learned counsel (Mr. M Saravanan) to indicate the essentiality of the need to recall and re-examine both SP-1 and SP-2 to the just decision of the case. Verily, Mr. M. Saravanan had failed to get the job done. [65] We found support in the following passage in PP v Abdul Hamid [1969] 1 MLJ 53 at p.54, as indicated to us by the learned DPP: "No doubt section 425 of the Criminal Procedure Code gives a wide discretion to the Court to summon and examine any person to give evidence but this power, as has been reiterated by many authorities which I need not cite here, must he exercised with the outmost caution and only where as set out in the provisions, the evidence of that person appears to the Court essential to the just decision of the case." [66] Meanwhile, the Supreme Court in PP v Phon Nam [1989] 1 CLJ Rep 142, at p. 145, states the following as the governing provision: "Section 425 Criminal Procedure Code is clearly divided into two limbs, first: a discretionary provision which provided that the Court may, on an application, summon any person as a witness or recall and re-examine any person already examined at any stage of any inquiry, trial or other proceeding under the Code. In exercising the discretion under the first limb, the Court clearly must proceed with utmost circumspection especially when there was likelihood of the fresh evidence proving to be prejudicial to the accused. Second: an imperative provision which requires the Court to do so where the Court is satisfied that the evidence to be summoned would appear to the Court to be essential to a just decision of the case. (See Mohd. Azam v. Mohd. Iqbal PLD 1984 Supreme Court 95 with the corresponding section in the Pakistan Criminal Procedure Code)” [67] On account of the non-availability of any grounds or basis for the learned JC to exercise her discretion in favour of the $ 1^{\mathrm{st}} $ appellant, and in the absence of any indication of the essentiality to recall and re-examine both SP-1 and SP-2 to the just decision of the case, we opined that the learned JC had not committed any error of law when she refused Mr. M. Saravanan's application to recall and re-examine both SP-1 and SP-2. [68] We also opined that the learned JC did not commit any error of law when she refused to entertain Mr. M. Saravanan's application to discharge himself from representing the $ 1^{\mathrm{st}} $ appellant pursuant thereto. [69] Her Ladyship's refusal to allow Mr. M. Saravanan's application to recall and re-examine both SP-1 and SP-2 is no ground for Mr. M. Saravanan to discharge himself of his duties upon his appointment by the Court to act as counsel for the $ 1^{\mathrm{st}} $ appellant, facing a capital offence. Her Ladyship had aptly applied the terms of the Circular regulating the appointment and conduct of counsel appointed by Court in a criminal trial involving a capital offence. Second Ground - wrong finding by the learned JC that the badminton bag contained the parang used to slash the deceased. [70] Learned counsel for the $ 1^{\mathrm{st}} $ appellant adopted the submission of learned counsel for the $ 2^{\mathrm{nd}} $ appellant pertaining to the issue of what was inside the badminton bag. [71] In respect of the same, the learned JC, after alluding to the rules governing the application of s.34 of the Penal Code ('PC') as postulated in Adiswaran Tharumaputrintar v PP & Other Appeals [2014] 3 CLJ 813, found, as indicated in her ground of judgment (at p.23, Jilid 1, RR), the following: "Applying the principles here, the evidence of Kesavan and Anberson showed that though the first accused was the actual doer of the criminal act in the present case, the second accused was also present and participated by assisting him in two ways. First, there was unchallenged evidence that prior to the murder, the first and second accused had left the restaurant for a short while and when they returned, they had a badminton bag with them. It was true that there was no direct evidence as to what was in the said bag, but the fact the murder took place soon after they had returned, indicated it must have been the parang that was used to slash the deceased." [72] In assessing the evidence of the $ 2^{\mathrm{n d}} $ appellant, the learned JC had again alluded that the parang used to slash the deceased was brought to the restaurant in the badminton bag by both the appellants. Thus, at para 54, of her grounds of judgment (at p. 32, Jilid 1, RR) she found: "...As in the case of the first accused, having accepted, as I did, the testimony of Kesavan and Anberson, which affords proof that the second accused was at the back lane when the deceased was slashed, and the parang used to slash the deceased was brought to the restaurant in a badminton bag by the first and second accused. His defence must also fail." [73] The said findings by the learned JC, nevertheless, came under heavy criticism by learned counsels. They contended that the finding that the parang used to slash the deceased was brought to the restaurant by both the appellants in a badminton bag was not supported by the evidence adduced. No witness testified that the badminton bag contained the parang. There was also no evidence that the said parang was ever inside the badminton bag. Both SP-1 and SP-2 also did not say that the parang was concealed inside the badminton bag that was taken to the restaurant by both the appellants. It was further contended that even if the learned JC had inferred that the parang was inside the badminton bag brought by both appellants, the inference was made without basis with no supporting evidence and therefore has no leg to stand on. [74] It was also contended that the learned JC's reliance upon the deceased's son testimony (SP-6, Sathivel a/l Gobinathan) that during the incident at Indah Water Seri Klebang, the $ 1^{\mathrm{st}} $ appellant was armed with a parang demonstrated that the appellants kept a parang in their lorry and had left the restaurant to bring it to attack the deceased, cannot be a safe inference in the absence of evidence that the badminton bag they brought to the restaurant contained the said parang. [75] We were in agreement that no evidence was adduced that the said badminton bag brought by both the appellants to the said restaurant contained the parang that was used to slash the deceased. We also agreed that the evidence is insufficient to safely make an inference that the said badminton bag contained the parang used to slash the deceased. Hence, we were in agreement with counsels' submission that the finding by the learned JC that the parang used to slash the deceased was brought by both the appellants to the restaurant was erroneous as it was not supported by the evidence adduced. Therefore, the said finding cannot be sustained. [76] However, notwithstanding that the finding by the learned JC that the parang used to slash the deceased was inside the badminton bag was erroneous and cannot be sustained, it does not detract the fact that the deceased was slashed to death by the $ 1^{\mathrm{st}} $ appellant using a parang. He was seen slashing the deceased with a parang by both SP-1 and SP-2. In fact the SP-1 saw the deceased running into the restaurant shouting "tolong! tolong!" and was pursued by the $ 1^{\mathrm{st}} $ appellant wielding a parang. SP-1 saw the deceased exited the restaurant through the back door into the back lane. At the back lane SP-1 saw the $ 1^{\mathrm{st}} $ appellant strike two blows on the deceased's hand with the parang, whilst the $ 2^{\mathrm{nd}} $ appellant sat on the motorcycle and watched the attack. Earlier SP-1 had seen the $ 2^{\mathrm{nd}} $ appellant riding his (SP-1's) motorcycle and went past the restaurant towards the back lane. [77] SP-2 corroborated SP-1's evidence in material particulars. [78] There is no reason to treat the testimonies of SP-1 and SP-2 with suspect. Equally there is no reason to reject their testimonies. The learned JC who had seen and heard the two witnesses testifying before her, found no merit in the contention of the $ 1^{\mathrm{st}} $ appellant that SP-1 and SP-2 were unreliable witnesses whose evidence ought to be rejected. Equally, she found no merit in the contention that they had a motive to falsely implicate the $ 1^{\mathrm{st}} $ appellant to exonerate themselves. The learned JC also found that the evidence of SP-1 and SP-2 was not shaken or broken in anyway during their cross-examination. These were the factual findings of the learned trial judge on the credit worthiness of the witnesses (SP-1 and SP-2) testifying before her. It is absolutely within her domain and we have no business to find otherwise unless it is shown that such findings is plainly perversed, unsustainable and not supported by the evidence adduced. [79] In addition, the evidence of SP-1 and SP-2 that the $ 1^{\mathrm{st}} $ appellant had slashed the deceased using a parang was amply supported by the medical evidence. [80] The pathologist (SP-3) performed the autopsy on the deceased. She found 19 injuries on the deceased's person consisting of four deep slash or chop wounds and the rest were superficial incisive wounds. The four chop wounds were on the deceased's head, two of which were deep and penetrating. The defensive injuries to both the deceased arms were deep and had severed his arteries and fractured the bones in both his hands. SP-3 opined that the deceased had died from excessive bleeding from these slash wounds which could have been caused by a sharp object, the like of a parang. [81] From the narrative of the investigation conducted by SP-3, clearly there can be no doubt that a parang was used to slash the deceased to his death. [82] On the facts we opined that the failure to adduce evidence regarding the contents of the said badminton bag, in particular whether the parang that was used to slash the deceased was inside the said bag, has not created any material gap upon the prosecution's case. [83] Hence, we found that the erroneous finding by the learned JC that the parang that was used to slash the deceased was brought to the restaurant in a badminton bag by the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ appellant appeared to be of no consequence in so far as the conviction against the $ 1^{\mathrm{st}} $ appellant is concerned. Third Ground - SP-1 was an interested witness [84] Learned counsel for the $ 1^{\mathrm{st}} $ appellant submitted that SP-1 is an interested witness. He had all the motive to end the deceased's life in revenge of the deceased's temerity in blaming him (SP-1) for the incident involving the shattering of the windscreen of the car belonging to the deceased which occurred about 3 weeks earlier and the consequential termination of his employment as security guard with the deceased company. All the more so when the deceased disappeared from the scene and fled his home immediately after the murder incident to Rawang and was arrested only weeks later. It was squarely put to SP-1 that he had slashed the deceased to death. [85] In all the circumstances of the case, in our judgment, SP-1 is not an interested witness. He was a mere bystander who witnessed the commission of the offence (slashing of the deceased) perpetrated by the $ ^{1} \mathrm{st} $ appellant, and who happened to be in the company of both the appellants and SP-2 before the offence was committed. [86] It is true that it was put to SP-1 by the $ 1^{\mathrm{st}} $ appellant's learned counsel that he and the SP-2 were the real culprits who had slashed the deceased. However, the allegation was denied by SP-1. In our view, the denial is no mere rhetoric. It does carry a ring of truth as there is no evidence to connect him with the slashing of the deceased to death. Even the $ 2^{\mathrm{nd}} $ appellant did not say that it was SP-1 who had slashed the deceased. [87] It is also true that SP-1 had agreed that 3 weeks before the murder of the deceased, there had been an incident involving the smashing of the windscreen of the deceased's car by both the appellants and others aligned to the appellants. SP-6 (the deceased's son) had corroborated SP-1's evidence that he did not participate in the smashing of the windscreen of the deceased's car. However, the deceased squarely blamed SP-1 for the incident, resulting in the termination of his employment with the deceased. Nevertheless, SP-1 testified that he was not perturbed by the said accusation and termination of his employment. He had no ill feeling towards the deceased. [88] We shared our empathy with him. The blame game and the termination of his employment thereafter appeared too trivial and remote a matter to propel him to undertake such a horrifying revenge against the deceased. [89] Even if SP-1 is an interested witness, he is still entitled to credence until cogent reason for disbelief can be advanced and admitted to prove otherwise. There is no legal presumption that an interested witness should not be believed - see Balasingham v Public Prosecutor [1959] 1 MLJ 193. Though the authorities also suggested that the evidence of an interested witness must be treated with caution, there is no rule of law requiring the trial judge to caution himself and make a specific ruling on the credibility of such witness - see Ramli bin Yusof v Public Prosecutor [2013] 5 MLJ 66; Magendran a/l Mohan v Public Prosecutor [2011] 6 MLJ1; [2011] 1 CLJ 805; Lim Boon San v PP [1968] 2 MLJ 45; Kumaran a/l Sappani v Public Prosecutor [2012] 6 MLJ 153. [90] Thus, the evidence of an interested witness will be assessed and weighed in the like manner as that of any other witness and will similarly be subjected to the vagaries of cross-examination. It is then the ensuing business of the trial judge to make a ruling at the end of the trial on the veracity of such witness and decide whether to reject or admit his evidence in whole or in part. [91] The learned JC, having seen and heard SP-1 and SP-2 giving evidence, ruled at the end of the trial (at p. 30, Jilid 1, RR) that: [92] Again, sitting in an appellate capacity, we were in no position to disagree or dispute the learned JC's assessment of the credit worthiness of both SP-1 and SP-2. As such there is no reason to reject their evidence or to treat their evidence with suspicion. Conclusion [93] For all the reasons given, we dismissed the $ 1^{\mathrm{st}} $ appellant's appeal and affirmed the conviction and sentence handed down upon him by the High Court. The $ 2^{\mathrm{n d}} $ Appellant's Appeal [94] Learned counsel for the $ 2^{n d} $ appellant premised his client's appeal principally upon the want of evidence that the $ 1^{s t} $ appellant had slashed the deceased in furtherance of the common intention between him and the $ 2^{n d} $ appellant under s.34 of the Penal Code ('PC') to murder the deceased. [95] At the end of the prosecution's case, the learned JC, after applying the principles of the law on common intention as alluded by the Federal Court in Adiswaran Tharumaputrintar v PP & Other Appeals (supra) stated that the evidence of SP-1 and SP-2 showed that although the $ 1^{\mathrm{st}} $ appellant was the actual doer of the criminal act, the $ 2^{\mathrm{nd}} $ appellant was also present and participated by assisting him in two ways:

there was the unchallenged evidence that prior to the murder, both appellants had left the restaurant for a short while and when they returned, there had a badminton bag with them. Although there was no direct evidence as to what was in the said bag, but the fact that the murder took place soon after they had returned, indicated it must have been the parang that was used to slash the deceased; and

(ii) the $ 2^{\mathrm{nd}} $ appellant also assisted the $ 1^{\mathrm{st}} $ appellant to flee the crime scene on SP-1's motorcycle. The parang that was used in the commission of the offence was not found at the crime scene. This indicated that it was taken away by the $ 1^{\mathrm{st}} $ appellant. [96] We have intimated earlier that the finding of the learned JC that the parang used to slash the deceased was in the badminton bag was not supported by the evidence adduced and hence, cannot be sustained. In such event there is no longer any link between the said parang used by the $ 1^{\mathrm{st}} $ appellant in the commission of the offence with the act or conduct of the $ 2^{\mathrm{n d}} $ appellant anymore to indicate the $ 2^{\mathrm{n d}} $ appellant's participation in the crime. [97] There is equally no evidence that the $ 2^{\mathrm{nd}} $ appellant had assisted the $ 1^{\mathrm{st}} $ appellant to flee the scene. No witness had testified that the $ 2^{\mathrm{nd}} $ appellant had assisted the $ 1^{\mathrm{st}} $ appellant to flee the scene. Even the learned DPP agreed that there is no evidence as to how the $ 1^{\mathrm{st}} $ appellant had fled the scene of crime. As such, there is again no evidence to suggest that $ 2^{\mathrm{nd}} $ appellant had acted in concert with the $ 1^{\mathrm{st}} $ appellant in furtherance of their common intention to murder the deceased by assisting the $ 1^{\mathrm{st}} $ appellant to flee the scene. [98] On these grounds alone, we had allowed the $ 2^{\mathrm{nd}} $ appellant's appeal. Thus his conviction and sentence as handed down by the learned JC is set aside and substituted with an order of acquittal and discharged. Dated: 10 January 2019 (AHMADI HAJI ASNAWI) Judge Court of Appeal, Malaysia Counsel Solicitors:- For the $ 1^{\mathrm{st}} $ Appellant: Hisham Nazir Tetuan Hisham Nazir & Co. Peguambela & Peguamcara For the $ 2^{\mathrm{n d}} $ Appellant: Geetham Ram, Lavanyia Raja & Charan Singh a/l Kartar Singh Tetuan Geethan Ram Peguambela & Peguamcara For the Respondent: Puan Norinna Bahadun Timbalan Pendakwa Raya Jabatan Peguam Negara 62100 Putrajaya