Soha Beta v Pendakwa Raya (Q-05(M)-124-02/2018, Q-05(LB)-125-02/2018)

the 2nd accused gave birth to the baby at 5.05 p.m. on the 23/11/2013 in Miri Hospital and both the 2nd accused and the baby were discharged the following day from the said Hospital, hale and healthy;

(ii) the 1st accused was the biological father of the baby;

(iii) that the body of the baby was found buried in the place as stated in the charge by one Titus Farneubun (PW13) at 3.30 p.m. on 26/11/2013. PW13 was at that material time, 4 a security guard in the oil palm plantation belonging to Alamwasa Plantation Sdn. Bhd. where the baby was buried;

(iv) the baby was wrapped with two pieces of cloth with the words ‘UNTUK KEGUNAAN HOSPITAL SAHAJA’ on them;

the baby’s cause of death was asphyxia according to the pathologist, Dr. Jamil Bin Dolkadir (PW19) which he said could be caused by burying the baby alive and that such act was sufficient in the ordinary course of nature to cause death to the baby;

(vi) both the accused were arrested at Ladang Sungai Pandan 4, Bintulu on 2/12/2013 at 1.30 p.m. [4] In order to prove that it was the two accused who, acting in furtherance of their common intention, asphyxiated the baby, the prosecution relied purely on circumstantial evidence and that evidence rests largely with PW13 who testified that on 26/11/2013 at about 3.30 p.m. he saw a man entering the bushes at the plantation and whom he identified as the 1st accused at an identification parade held on 25/12/2013, which was just 9 days after that as well as in court on 5/9/2015. The 1st accused, said PW13 was at that material time with a woman whom he could not identify for she was looking down whilst 5 carrying a baby in a “kain sarong batik”. Upon seeing them leaving about 10 minutes later, he said the woman was no longer carrying the baby for the “kain sarong batik” according to PW13 was empty. After they left, PW13 heard the sound of a baby crying and when he went to investigate, he made the gruesome discovery as stated above. PW13 then informed his manager, Li Chee Kiong (PW12) about the discovery who then went to the scene and the latter further informed the manager of Regalot Pelita Plantation Sdn. Bhd., Musa Bin Ismail (PW11) who in turn alerted the police on the discovery. [5] Eventually, with the help of Bukit Aman Police Headquarters, the two accused persons were arrested at the place as stated above. According to the evidence of the arresting officer, Insp. Nasrul Hadi Bin Jahat (PW4), the 1st accused acted aggressively and tried to escape when the arrest was made. Although in cross-examination it was put to PW4 that he never did behave that way, PW4 maintained his evidence that the 1st accused did. [6] Upon their arrests, both the accused’s clothings were seized by the police. That mentioned by PW13 as being worn by the 1st accused, that is a black t-shirt (Exh. P38B) contained not only his DNA but that of the 2nd accused and the baby. Whilst that seized from the 2nd 6 accused, that is a pair of pink short pants (Exh. P36B) and pink blouse (Exh. P37B) contained both her DNA and that of the baby. No Prima Facie Case [7] The learned JC’s reason for finding that there was no prima facie case made out against the two accused was because he could not accept PW13’s evidence that he heard the cries of the baby about 10 minutes after the 1st accused and the 2nd accused left the scene because the baby would have died instantly upon burial. His Lordship referred to the evidence of PW19 who said that the baby could not have cried once buried. Therefore, said His Lordship, the baby must have already been dead when buried so he directed the learned DPP to frame a charge against both of them under section 318 of the Penal Code. That decision was of course reversed by this court on appeal as mentioned earlier. [8] Given that earlier decision by this court, we too are bound to accept and was in no position to resile from that already determined by this court that a prima facie case has been made out against the two accused and our task, like that of the learned JC, is only to determine if the respective defences of the two accused had raised any reasonable doubt on the prosecution’s case. The statement made by 7 this court, which we fully endorsed, in Manimaran a/l Awas v PP [2015] 1 MLJ 18 as highlighted by the learned Deputy Public Prosecutor (DPP) at the hearing of the appeal before us is worth reproducing: “[25] In the instant appeal, since all the appellants were called upon by the Court of Appeal to enter on their defence, it must necessarily mean that the Court of Appeal was satisfied that the prosecution had proved all the ingredients of the charge, including the element of common intention, before concluding that a prima facie case had been made out by the prosecution. There was therefore no necessity for us to revisit the issues on whether a prima facie case had been made out. What we need to consider was whether the evidence from the defence had cast a reasonable doubt on the prosecution’s case.” The Defences [9] Both the accused gave unsworn statements and did not call any witness to testify in their defence. In both their statements, they admitted having an affair with each other which led to the birth of the baby. According to the 1st accused, upon the 2nd accused’s discharge from the said Hospital they took a bus back to the oil palm plantation where they worked. They alighted from the bus at a place called Simpang Ngu, Niah where the 1st accused took the baby from the 2nd accused by force in order to give it up for adoption which move was strongly opposed by the 2nd accused. He left with the baby and when he came back he told her that he had given the baby to an Indonesian 8 couple. They then boarded a bus to go to the place where they were subsequently arrested. [10] The unsworn statement of the 2nd accused corroborates that of the 1st accused and needs no repetition. Both accused also tendered a notice of alibi (Exh. D1 and D2) to say that they were together in a bus from Miri to Bintulu at the time and date of the offence but no witnesses were listed or named in the said notices. The bus company was similarly not identified in the said notices which prompted us to say straightaway that the said omission has of course whittled away the weight to be given to the said defence given the impossibility of the prosecution to verify the accuracy of the fact as stated in the notices. Findings Of The Learned JC [11] In respect of the 1st accused, the learned JC was of the view that his defence that he gave up the baby to an Indonesian couple for adoption in his unsworn statement should not be given much weight as it was not contained in a caution statement made during investigation, citing this Court’s decision in Chukwudi Hassan v PP [2015] 8 CLJ

His Lordship remarked that the 1st accused had also been positively identified by PW13 and was the last person seen with the baby. The alibi notices were rejected as being an afterthought and His 9 Lordship particularly highlighted the fact that he did not even mention the Indonesian couple who allegedly adopted the baby. The learned JC concluded therefore that the 1st accused’s defence failed to raise any reasonable doubt on the prosecution’s case. As for the 2nd accused, the learned JC held that she was not the woman seen by PW13 carrying the baby with the 1st accused because PW13 could not identify her at the identification parade and in court and the prosecution has failed to establish the element of common intention as required in the charge. Thus, His Lordship again discharged and acquitted her of the charge. The Appeal [12] Learned counsel for both the accused raised four common issues respecting them and they are:

existence of a foreign DNA on the cloths found with the baby;

(ii) unsatisfactory evidence on the identification parade;

(iii) the credibility of the alibi defence;

(iv) evaluation of the unsworn statements of the accused. 10 As against the 2nd accused, learned counsel submitted that she had been properly acquitted on account of PW13’s failure to identify her and the absence of evidence on common intention as per the charge. The First And Second Issues [13] The evidence on the existence of a foreign DNA, besides that of the 1st and 2nd accused, found on the green and white cloths [Exh. P31(b) and P32(b)] from Miri Hospital which was used to wrap the baby when it was buried, came from the Scientific Officer, Phoon Voong Keat (PW20) and the Investigation Officer, ASP Soliment Nyian (PW18). This evidence, according to learned counsel corroborates that in the common defence of the two accused that the baby had been given up for adoption by the 1st accused. With respect, we are unable to accede to this argument because as stated above, these two pieces of cloths were from Miri Hospital and it stands to reason and it is pure common sense that they had not only been used but also handled by others before the two accused and the baby. [14] The second issue relates to the defence’s complaint that the identification parade conducted was defective. In Exh. P18, which is the report prepared by PW6 for the identification parade conducted by Insp. Nor Rahimah Binti Hashim (PW5) in respect of that conducted for 11 the 2nd accused that involves three Miri Hospital’s personnels, that is, Rizal Bin Firdaus (PW14), Faridah anak Igok and Marilyn Sahek (PW15), it was recorded that the witnesses were informed that they could identify the suspect by touching the suspect’s shoulder. However, in Exh. P19 which is the identification parade report on both accused by PW13 conducted by Insp. Huzaimi Bin Md Said (PW6), the same recording was absent (see pages 116 and 126 of Volume 3 of the Appeal Record respectively). As noted in the said Exh. P19, PW13 did not however identify the 1st accused by that act but from his position in the line-up. [15] It was also raised by learned defence counsel that there was an earlier notation made by PW6 in handwritten form which was then typed in and printed out from the computer which reads as follows: ‘PEMAKLUMAN KEPUTUSAN PROSEDUR PENGECAMAN

13.1 Samada saspek pertama dimaklumkan tentang keputusan kawat cam (Ya / Tidak)

13.2 Samada saspek kedua (jika ada) dimaklumkan tentang keputusan kawat cam :- (Ya / Tidak)” PW6 admitted that he had in Exh. P19 forgot to remove the highlight from the word ‘Tidak’ under item 13. 12 [16] Four other points of dissatisfaction were raised by him about the said report, to wit, firstly and as alluded to earlier, PW13 identified the 1st accused by pointing to him but yet in Exh. P19 it was stated that he was identified from his position number. Secondly, the 1st accused was not stated in the report to have been informed of his right to have his lawyer present but for the 2nd accused, it was so stated in Exh. P18. Thirdly, the 1st accused did not sign on Exh. P19 to indicate that he did not want a lawyer or friend present. Lastly, the other participants in the identification parade were not of the same race as the 1st accused, only the same nationality, that is Indonesians and in the absence of their contact numbers, the learned JC would not be in position to compare whether these participants were of similar height, complexion and built as the 1st accused. [17] Furthermore, submitted learned counsel, there were also contradictions in the evidence of PW6 and PW13 on, inter alia, when the identification parade was conducted, how many participants were involved (PW13 said more than 20, PW6 said 11) and PW13 saying that 1st accused was standing at position No. 5 whereas the report said he was at position No. 7. Learned counsel cited, inter alia, the Federal Court’s decision in Chang Kim Seong v Public Prosecutor [1968) 1 MLJ 36 which held that where the witness was earlier asked to identify 13 the accused in the police station before the identification parade was conducted, the said evidence was vitiated. [18] The learned DPP in her oral submission said these issues had been raised before the previous panel and yet it still found that a prima facie case has been made out against the 1st accused. Learned counsel for the two accused in his oral reply did not refute that this was what happened at that hearing before this court then. As mentioned earlier, it is her submission that we should not revisit these issues but must just focus on the defences raised by the two accused. We were of the like mind as the learned DPP that it was not open to us to reconsider issues which had been ventilated before the previous panel for obviously we were barred from doing so being courts of co-ordinate jurisdiction. Nevertheless, even if we were to agree that the identification parade conducted in respect of the 1st accused was defective and agree that the said evidence be excluded, it would not impact on the finding of guilt against the 1st accused because the said evidence is merely corroborative of the identification by PW13 in court. This has been stated in ST Shind v State of Maharashtra AIR [1974] SC 791 which was quoted by this court in Pendakwa Raya v Nirmala Subramaniam dan 8 Yang Lain [2017] 1 LNS 537. Furthermore, the dock identification by PW13 is to us reliable evidence because as 14 stated earlier he could even remember the clothes worn by the 1st accused at that material time and was honest enough to admit that he could not identify the 2nd accused. This shows that he had no ulterior motive to implicate the 1st accused of the crime. The Rest Of The Issues [19] Again it is expedient for us to consider not just the third and fourth issues together but also with that against the acquittal of the 2nd accused as all these issues are intertwined. It is of course trite law that although it is the undeniable right of an accused person to give his defence by way of an unsworn evidence which must be considered by the court, the weight to be attached to it is lesser than that of a sworn statement because the accused could not be cross-examined. (See for instance, Dato’ Seri Anwar Ibrahim v Public Prosecutor & Another Appeal [2015] 2 CLJ 145). [20] Given it was a common stand of both accused that the baby was given up for adoption, the fact that the 1st accused did not identify the person(s) whom he gave up the baby to during investigation as confirmed by PW18 in his evidence at page 357 Volume 2(2) of the Appeal Record and even in his defence, defies logic for the baby was his own son after all and not just a worthless object that he could simply 15 not be bothered with the identity of its receiver. We noted too that the alleged adoption was never put to any of the prosecution witnesses, particularly PW18, rendering that common defence of the two accused not just an afterthought but a mere denial which was not worthy of credit and which evidentially has failed to create a reasonable doubt on the prosecution case. This has been held by the Federal Court in Dato’ Seri Anwar Ibrahim’s case (supra). [21] The positive identification of the 1st accused by PW13, even if we were to disregard that it was made in the identification parade, negates the defence that he had anything to do with the murder and as held in Duis Akim & Ors v Public Prosecutor [2014] 1 MLJ 49 an alibi defence could not prevail over the positive identification of an accused person especially in the face of categorical statements coming from credible witnesses who has no ill motives in testifying against the accused. The above consideration bolsters our earlier finding on the worthlessness of the notice of alibi put up by both accused. As for the point raised by learned counsel that PW13 could not have heard the baby’s cries if it had been buried alive as conceded to by the pathologist and that at a distance of 74 meters, PW13 could not have possibly heard such cries, that point cannot be re-ventilated before us after the finding of prima facie case by this court. This we say because from our 16 reading of the first judgment of the learned JC when His Lordship acquitted both of the accused, that was the very reason that was used by him to justify the said acquittals. Equally pertinent to the 1st accused is the fact that he had behaved aggressively and tried to escape as mentioned earlier in our judgment. That evidence is relevant under section 8 of the Evidence Act 1950 which militates against the claim of innocence by the 1st accused. The principle to be applied on this point of law is explained by the Federal Court in Parlan Dadeh v Public Prosecutor [2009] 1 CLJ 717 at page 746 – 747 as follows: “[36] The law relating to evidence of conduct is thus patent. If there is no evidence to show that the conduct is influenced by any fact in issue or relevant fact as required by s. 8 then it is not admissible as it would then be an equivocal act justifying inferences favourable to the accused being drawn. If it satisfies the requirement of s. 8 it is admissible. It must be observed that the degree of proof required to establish evidence of conduct would depend on the nature of the conduct. Conduct like the flight of an accused is a more positive act and is easily established. On the other hand conduct like the accused looking stunned, nervous, scared or frightened is very often a matter of perception and more detailed evidence may be required. Once admitted the court cannot resort to any other explanation for the conduct or draw inferences on its own accord to render it inadmissible. The onus is on the accused to explain his conduct pursuant to s. 9. Such explanation must not be in their barest possible form, but with a reasonable fullness of detail and circumstance (see R v. Stephenson [1904] 68 JP 524). The onus may be discharged even in the course of the case for the prosecution, for example, by way of cross-examination 17 of relevant witnesses. If not so done it can be discharged only at the defence stage.” In his statement, the 1st accused merely said he surrendered voluntarily (see page 416, Volume 2 (3) of the Appeal Record) but we find no reason to find that PW4 had fabricated his evidence against the 1st accused. [22] As for the 2nd accused, although PW13 could not identify her but the sequence of events as per their own defence shows that both the accused were together from the time of the 2nd accused’s discharge with the baby from the Miri Hospital and together they had boarded the bus to go to Simpang Ngu. The Federal Court in Siew Yoke Keong v Public Prosecutor [2013] 3 MLJ 630 at page 656 has held, and this we rephrase, that a piece of circumstantial evidence should not be looked at in isolation by the court but together with the others which had been adduced by the prosecution. A quote from Thomson CJ in Chan Chwen Kong v Public Prosecutor [1962] 1 MLJ 307 was reproduced by the Federal Court and we would do the same below: “In the first place we have listened to a careful, accurate and detailed analysis of the evidence against the appellant. That evidence was entirely circumstantial and what the criticism of it amounts to is this, that no single piece of that evidence is strong enough to sustain the 18 convictions. That is very true. It must, however be borne in mind that in cases like this where the evidence is wholly circumstantial what has to be considered is not only the strength of each individual strand of evidence but also the combined strength of these strands when twisted together to make a rope. The real question is: is that rope strong enough to hang the prisoner?” [23] Thus, from our analysis of the evidence and application of the law above, the only irresistible inference to be made following the positive identification of the 1st accused by PW13 and his evidence that there was a woman with him carrying a baby going into the bushes where the baby was later found buried, that woman could only be the 2nd accused and no other. Circumstantial may that evidence be, but to us, it being incapable of any other inference favourable to the 2nd accused, such evidence was sufficient to establish beyond reasonable doubt that both of the accused had a common intention to cause the death of the baby for their statements from the dock were just a mere denial. Such a denial as we had stated earlier does not amount to a credible defence. [24] Our conclusion above is made after due consideration of the law, firstly on circumstantial evidence, as stated by this Court in Ahmad Najib Aris v Public Prosecutor [2007] 2 CLJ 229 which was quoted with approval by the Federal Court in Pathmanabhan Nalliannen v 19 Public Prosecutor & Other Appeals [2017] 4 CLJ 137 at page 185 and is reproduced below: “[175] In Ahmad Najib Aris v. PP [2007] 2 CLJ 229, Abdul Aziz Mohamad JCA (as he then was), delivering the judgment of the Court of Appeal said: ... As to what circumstantial evidence is, it is needful to quote only that part of the summing up to the jury that is set out in Idris v. Public Prosecutor [1960] 1 LNS 40; [1960] 26 MLJ 296 at p 297: With regard to the definition of circumstantial evidence I can give you no better definition than quote to you the words of Lord Cairns in the case of Belhaven & Stenton Peerage reported in 1875 – 6 Appeal Cases, page 279: My Lords, in dealing with circumstantial evidence we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel. In other words circumstantial evidence consists of this: that when you look at all the surrounding circumstances, you find such a series of undesigned, unexpected coincidences that, as a reasonable person, you find your judgment is compelled to one conclusion. If the 20 circumstantial evidence is such as to fall short of that standard, if it does not satisfy that test, if it leaves gaps then it is of no use at all ...” [25] As was earlier stated by the Federal Court in the same case, citing Abdul Samid Edward v Public Prosecutor [2015] 4 CLJ 149 absence of motive, though an important element to look out for when the prosecution relies on circumstantial evidence to convict an accused, is not an absolute must in the sense that the absence of it would exculpate the accused. It is also worth emphasizing that both accused were the last persons seen alive with the baby and for the 1st accused this is borne out in the evidence of PW13. This must equally be the case for the 2nd accused for if it were not this Court would not have ordered their defences to be called. That being the case, as held by this Court in Public Prosecutor v Wiley Anak Salleh [2017] MLJU 1791 quoting from Ashok v State of Maharashira [2015] 4 Supreme Court 393, viz: “... the burden of proof shifts on the accused “to explain how the incident had occurred” and that failure on the part of the accused to furnish any explanation in this regard would give rise to a very strong presumption against him.” [26] Although the Federal Court in Magendran a/l Mohan v Public Prosecutor [2011] 6 MLJ 1; [2011] 1 CLJ 805 it was held that “... no 21 adverse inference of guilt can be drawn against the appellant from the fact that he was last seen with the deceased, he being no other than her own lover who is naturally expected to be with her.”, nevertheless in this case, even though no such inference can be drawn but the requirement for the explanation as held in Ashok’s case (supra) must still be satisfied. From the statements of both accused, no such acceptable explanation had been proffered by them. [27] Secondly, on the element of common intention, it is, as advised by the Federal Court in Farose Tamure Mohamad Khas v Public Prosecutor & Other Appeals [2016] 6 MLJ 277, a question of fact to be proved mainly as a matter of inference from the circumstances of the case such as the conduct of the accused and the manner in which the accused arrived at the scene because direct evidence as proof is difficult to procure since common intention is essentially a state of mind. In this case before us, the very same circumstances which we alluded to earlier, especially the togetherness of the two accused is satisfaction of the proof of that essential element of the charge against them. [28] Accordingly, based on the factual and legal considerations above, we have decided to dismiss the 1st accused’s appeal and to uphold the High Court’s conviction and sentence against the 1st 22 accused. That of the Public Prosecutor’s against the 2nd accused was allowed and for which she was sentenced by us to the mandatory death penalty, that is, to be hanged by the neck until she is dead under section 302 of the Penal Code. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 28th January 2020 Parties Appearing: For The Appellant in Q-05(M)-124-02/2018: Ranbir Singh Sangha [Messrs Ranbir S. Sangha & Co.) For The Respondent in Q-05(M)-124-02/2018: Tengku Intan Suraya Binti Tengku Ismail [Attorney General’s Chambers] For The Appellant in Q-05(LB)-125-02/2018: Tengku Intan Suraya Binti Tengku Ismail [Attorney General’s Chambers] For The Respondent in Q-05(LB)-125-02/2018: Ranbir Singh Sangha [Messrs Ranbir S. Sangha & Co.) 23

Manimaran a/l Awas v PP [2015] 1 MLJ 18;

Chang Kim Seong v Public Prosecutor [1968) 1 MLJ 36;

ST Shind v State of Maharashtra AIR [1974] SC 791;

Pendakwa Raya v Nirmala Subramaniam dan 8 Yang Lain [2017] 1 LNS 537;

Duis Akim & Ors v Public Prosecutor [2014] 1 MLJ 49;

Siew Yoke Keong v Public Prosecutor [2013] 3 MLJ 630;

Chan Chwen Kong v Public Prosecutor [1962] 1 MLJ 307;

Dato’ Seri Anwar Ibrahim v Public Prosecutor & Another Appeal [2015] 2 CLJ 145;

Parlan Dadeh v Public Prosecutor [2009] 1 CLJ 717 at page 746 – 747;

Ahmad Najib Aris v Public Prosecutor [2007] 2 CLJ 229;

Pathmanabhan Nalliannen v Public Prosecutor & Other Appeals [2017] 4 CLJ 137 at page 185;

Abdul Samid Edward v Public Prosecutor [2015] 4 CLJ 149;

Public Prosecutor v Wiley Anak Salleh [2017] MLJU 1791;

Ashok v State of Maharashira [2015] 4 Supreme Court 393;

Magendran a/l Mohan v Public Prosecutor [2011] 6 MLJ 1; [2011] 1 CLJ 805;

Farose Tamure Mohamad Khas v Public Prosecutor & Other Appeals [2016] 6 MLJ 277.