Ahmad Rizal Bin Umar v Pendakwa Raya (S-06A(M)-3-06/2020)

This appeal concerned a police investigating officer (IO) who was charged with murdering his lover but he had however alleged that she was killed by a robber who broke into her home.

A draft copy of this judgment (Draft) had been previously forwarded to Supang Lian and Collin Lawrence Sequerah JJCA. Both my learned sister and brother had agreed with the Draft. B. Previous proceedings

The appellant (Appellant) was a police inspector who was charged with the murder of one Cik Kartini bt. Borhan (Deceased) in Lot 7, Phase 5, Taman Andika, Keningau, Sabah (Premises) on 29.9.2011, between 4.00 am and 5.00 am (Amended Charge), an offence punishable under s 302 of the Penal Code (PC).

At the end of the prosecution case, the High Court acquitted and discharged the Appellant of the Amended Charge (High Court's Initial Acquittal and Discharge).

The prosecution's appeal to the Court of Appeal against the High Court's Initial Acquittal and Discharge was dismissed (Court of Appeal's Decision).

Upon further appeal by the prosecution against the Court of Appeal's Decision to the Federal Court, the Federal Court allowed the appeal and ordered the Appellant to enter his defence on the Amended Charge (Federal Court's Decision). C. The prosecution's case

The prosecution had adduced the following evidence:

the Deceased rented a bedroom at the Premises (Bedroom);

before the incident which led to the death of the Deceased (Incident) -

the Deceased was having an affair with one Mr. Lim Guan Heng (PW12). In this judgment, we shall refer to this affair as the "Affair (Deceased-PW12)";

the Appellant was married to another lady but since February 2011, he had an affair with the Deceased [Affair (Deceased-Appellant)];

the Affair (Deceased-Appellant) was subsequent to the Affair (Deceased-SP12) but nonetheless both affairs continued at the same time. There was therefore a love triangle involving the Deceased, Appellant and PW12 (Love Triangle); and

by July, 2011, the Appellant spent most of his nights with the Deceased in the Bedroom;

the Appellant was a police Inspector who had been an experienced IO in the Criminal Investigation Department. With his training and work experience as an IO, the Appellant had murdered the Deceased and made the Deceased's murder appear as if a robber (Assailant) had broken into the Premises and attacked both the Appellant and Deceased;

the Appellant had the following injuries-

a lineal cut on the inner half of the left palm of the Appellant's hand;

a lineal cut on the inner half of the Appellant's right chest above and inner to his right nipple;

an oblique lineal cut on the right shoulder region near the right base of the Appellant's neck;

a lineal cut on the lower half of the right side of the Appellant's chest;

an oblique elliptical cut on the back of the Appellant's left shoulder;

an oblique lineal cut on the left mid-back, below the left shoulder blade of the Appellant;

an oblique lineal cut over the Appellant's thoracic vertebrae;

a curvilinear oblique cut below the right knee cap of the Appellant; and

a cut on the dorsum of the Appellant's right foot (Appellant's Injuries);

a forensic pathologist attached to the Department of Forensic Medicine, Hospital Kuala Lumpur, Dr. Siew Shue Fong (PW23), gave an expert view regarding the Appellant's Injuries (PW23's Expert Opinion). According to PW23's Expert Opinion, among others-

the Appellant's Injuries were non-life threatening; and

the Appellant's Injuries were not consistent with the consequences of a combative encounter. This was because-

the two incised wounds on the back of the Appellant were similar in appearances in the sense that both wounds were almost parallel in orientation and situated at the same level of the Appellant's back;

(ii) wounds caused by an actual fight would have been distributed in a random manner over the Appellant's body; and

(iii) there were no injuries on the Appellant's head, neck and face. In a fight between the Appellant and the Assailant, the Assailant would have focused on causing injuries to the head, neck and face of the Appellant [Reasons (PW23's Expert Opinion)];

at the time of the Incident, the iron grill door to the Premises was locked by way of a padlock (Padlock). There was no sign of a forced entry into the Premises. In fact, police investigation revealed that the Padlock with its key [Key (Padlock)] attached to the Padlock, was hanging on the grill door of the Premises after the Incident;

the Appellant was not a credible witness because he had given contradictory versions as follows-

in the Appellant's police report dated 2.10.2011, exhibit P35 (Appellant's Police Report), he reported that, among others, he only went to the Premises after he received a distress call from the Deceased. Hence, he went to the Premises and found the Deceased in a struggle with the Assailant; and

in the Appellant's two statements under s 112 of the Criminal Procedure Code (CPC) to the police on 5.10.2011 (exhibit D1) and 11.10.2011 (exhibit D2) as well as his sworn testimony in the High Court, he alleged that the Assailant suddenly barged into the Bedroom and attacked both the Appellant and Deceased {Appellant's Material Contradiction [2 Statements (Section 112 CPC)]}; and

in view of the Love Triangle, the Appellant had the motive to murder the Deceased. D. Whether the prosecution had proven a prima facie case of the Amended Charge

Premised on the Federal Court's Decision, the prosecution had proven a prima facie case of the Amended Charge under s 180(3) and (4) CPC. Reproduced below are s 180(3) and (4) CPC: "180(3) If the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter on his defence.

For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction." (emphasis added). E. The case for the defence

The Appellant elected to give sworn evidence. According to the Appellant's testimony, among others:

the Appellant went to the Premises at around 9.00 pm, 28.9.2011 (the night before the Incident). The Appellant then spent time with the Deceased in the Bedroom;

the Appellant invited the Deceased to attend a birthday party of a fellow police officer at Kelab Rekreasi Keningau but she turned down the invitation;

the Appellant left the Premises at about 11.45 pm, 28.9.2011, and the Deceased asked him to take the Key (Padlock) with him;

the Appellant returned to the Premises at about 3.40 am, 29.9.2011. He opened the Padlock with the Key (Padlock) and after his entry into the Premises, he fastened the Padlock;

the Appellant and Deceased were asleep in the Bedroom when the Assailant suddenly barged into the Bedroom;

the Assailant attacked the Appellant with a steel kitchen knife. Consequently, there was a struggle between the Appellant and the Assailant wherein the Assailant had inflicted some of the Appellant's Injuries $ ( 1^{st} $ Struggle);

despite the $ 1^{\mathrm{st}} $ Struggle, the Appellant managed to leave the Bedroom and scurry to the living room in the Premises (Living Room). The Assailant continued to attack the Appellant in the Living Room and their struggle continued therein ( $ 2^{\mathrm{nd}} $ Struggle);

during the $ 2^{\mathrm{nd}} $ Struggle, the Deceased suddenly came to the Living Room from the Bedroom. The sliding door and grill door of the Premises were open but the Deceased did not escape but shouted "sudahlah, sudahlah"! The Assailant immediately stopped attacking the Appellant and went to stab the chest of the Deceased two or three times;

the Assailant grabbed a handbag and some other things before escaping through the open sliding door and grill door of the Premises;

after the Assailant's escape-

due to the Appellant's Injuries, he could not carry the Deceased; and

the Appellant dragged himself from the Premises into his car (Car) and he drove to Keningau Police District Headquarters (Police District HQ);

at the Police District HQ-

the Appellant requested for the assistance of Corporal Jasni bin Jualis (PW1) and Lance Corporal Kristin Anak Tarang (collectively referred to in this judgment as the "2 Police Officers"); and

the Appellant and 2 Police Officers subsequently went to the Premises in the Car (driven by PW1); and

after the Appellant and 2 Police Officers arrived at the Premises-

the Appellant stayed inside the Car and requested the 2 Police Officers to go inside the Premises to save the Deceased;

the 2 Police Officers went inside the Premises, they found the Deceased on the floor of the Living Room in a supine position; and

the 2 Police Officers carried the Deceased into the Car and drove to the hospital.

The Appellant also called a forensic pathologist, Dr. Buhpinder Singh (DW2), to give an expert opinion in support of his sworn evidence that the Appellant's Injuries could not be self-inflicted (DW2's Expert Opinion). F. The recall of PW23

The prosecution had obtained leave of the High Court to recall PW23 to rebut DW2's Expert Opinion (PW23's Rebuttal Evidence). In PW23's Rebuttal Evidence, PW23 gave a detailed explanation on why the Appellant's Injuries were self-inflicted. G. The grounds for the High Court's decision

At the end of the trial of this case, the learned High Court Judge convicted the Appellant of the Amended Charge (High Court's Conviction) and imposed the then applicable mandatory death sentence (High Court's Death Sentence).

The learned High Court Judge's "Grounds of Judgment" (GOJ) gave, among others, the following reasons for the High Court's Conviction:

the High Court preferred PW23's Expert Opinion to DW2's Expert Opinion. According to the learned High Court Judge, PW23's Expert Opinion was supported by the following evidence and reasons-

there was no forced entry into the Premises. As such, the Appellant's averments regarding the Assailant could not be accepted - paragraphs 49, 50 and 54 GOJ;

in view of the Appellant's Material Contradiction [2 Statements (Section 112 CPC)] , the Appellant was not a reliable witness - paragraphs 51 to 53 GOJ;

in paragraph 56 GOJ, the High Court did not believe the Appellant's testimony that in the midst of the $ 2^{\mathrm{nd}} $ Struggle in the Living Room, the Deceased suddenly ran out of the Bedroom but stopped at the Living Room and shouted "sudahlah, sudahlah" (which ended in her being stabbed to death by the Assailant). This was because any reasonable person in the Deceased's circumstances would have escaped through the open sliding door and grill door of the Premises without stopping in the Living Room to be murdered by the Assailant;

the Premises was a unit of terrace link house. If the Appellant and Deceased had been attacked by the Assailant, they could have easily screamed for help and the Assailant would have run away - paragraphs 57, 58 and 59(i) to (vii) GOJ;

save for the Appellant's footprints (which had been identified at the trial), there were other footprints found at the scene of the murder which had not been identified by the prosecution. Hence, the Appellant's learned counsel submitted that the Appellant's evidence (the Assailant had murdered the Deceased) had raised a reasonable doubt. The High Court did not accept this contention because, among others, the Appellant had admitted his presence at the scene of the Incident - sub-paragraph 59(xii) GOJ;

there was one strand of hair found between the fingers on the right hand of the Deceased which was in a clenched position. This strand of hair had the Appellant's DNA. This constituted proof of a struggle between the Appellant and the Deceased before the former murdered the latter. The learned High Court Judge did not accept the two contentions by the Appellant's learned counsel that the strand of hair found between the fingers of the Deceased was due to-

the lovemaking between the Appellant and Deceased wherein the Deceased had pulled the Appellant's hair; or

(ii) the Deceased caressed the Appellant's hair before they fell asleep in the Bedroom - paragraphs 60 and 61 GOJ; and

Cik Aziyanna bt. Sadiken (PW7) was a close friend of the Deceased. PW7 knew about the Love Triangle. The Deceased had confided in PW7 that the Appellant was jealous of the Affair (Deceased-PW12) and in his fits of jealousy, he had the tendency to hit his own head against the wall and beat his chest repeatedly. Accordingly, the Appellant had the motive to murder the Deceased paragraphs 62 and 66 to 76 GOJ; and

the learned High Court Judge was fully aware that the prosecution's case against the Appellant was purely circumstantial but nevertheless the High Court was satisfied that-

the evidence adduced by the prosecution had led to an irresistible conclusion that the Appellant was guilty of the Amended Charge; and/or

there was proof beyond all reasonable doubt that the Appellant had murdered the Deceased - paragraphs 63, 64 and 78 GOJ. H. Contentions of the parties

In support of the appeal against the High Court's Conviction, the Appellant's learned counsel, Mr. Ram Singh, advanced the following submission, among others:

there were many sets of footprints at the scene of the Incident. The prosecution only identified the Appellant's footprints at the scene of the Incident. The existence of the many sets of footprints supported the Appellant's testimony regarding the Assailant and raised a reasonable doubt that the Assailant had killed the Deceased;

there was no direct evidence to prove that the Appellant had caused the death of the Deceased;

the learned High Court Judge was unduly influenced by the Love Triangle so as to find that the circumstantial evidence adduced by the prosecution in this case was sufficient to prove beyond all reasonable doubt that the Appellant had murdered the Deceased. In any event, the circumstantial evidence in this case did not raise an irresistible inference that the Appellant had murdered the Deceased;

DW2's Expert Opinion that the Appellant's Injuries could not be self-inflicted, had raised a reasonable doubt regarding the existence of the Assailant. On this ground alone, the Appellant should have been acquitted of the Amended Charge;

the learned High Court Judge should have rejected PW23's Expert Opinion;

the Appellant had provided a reasonable explanation for the Appellant's Police Report and the Appellant's Material Contradiction [2 Police Statements (Section 112 CPC)] namely, he was trying to keep the Affair (Deceased-Appellant) a secret;

there was a break in the chain of evidence regarding the Appellant's blood sample because there was no evidence as to how the Appellant's blood sample was kept and whether any person had access to the Appellant's blood sample; and

the High Court made a plain error of fact when her Ladyship decided that the Appellant's defence was a mere denial. This was because the Appellant's sworn testimony was corroborated by DW2's Expert Opinion.

The learned Deputy Public Prosecutor (DPP), Encik Mohd. Amril bin Johari, had forwarded the following contentions, among others, so as to persuade us to uphold the High Court's Conviction:

the learned High Court Judge, as the trial judge, had the audiovisual advantage to assess the credibility of the Appellant. The High Court did not find the Appellant to be a credible witness;

the learned trial judge had considered both the expert testimonies of PW23 and SD2. The High Court had provided sufficient reasons in the GOJ on why her Ladyship had accepted PW23's Expert Opinion and rejected SD2's Expert Opinion;

according to the learned High Court Judge, the Love Triangle provided the motive for the Appellant to murder the Deceased;

the High Court correctly decided that the Appellant had the intention of causing bodily injury to the Deceased and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death to the Deceased; and

the learned High Court Judge did not err in deciding that the circumstantial evidence in this case had led to the irresistible conclusion that the Appellant had murdered the Deceased. OUR DECISION I. Elements of the Amended Charge

We reproduce below the relevant parts of ss 299, 300 PC and s 182A CPC: "PC s 299. Culpable homicide Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. s 300 Murder Except in the cases hereinafter excepted, culpable homicide is murder -

if the act by which the death is caused is done with the intention of causing death;

if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;

if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid. CPC Procedure at the conclusion of the trial s 182A(1) At the conclusion of the trial, the Court shall consider the evidence adduced before it and shall decide whether prosecution has proved its case beyond reasonable doubt.

If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it.

If the Court finds that the prosecution has not proved case beyond reasonable doubt, the Court shall record an order of acquittal." (emphasis added).

With regard to the Amended Charge, the prosecution has the legal and evidential burden under s 182A(1) and (2) CPC to prove the following three elements of the Amended Charge beyond all reasonable doubt:

the Appellant had caused the injuries (Deceased's Injuries) to the body of the Deceased $ [ 1^{\mathrm{st}} $ Element (Amended Charge)];

the Deceased's Injuries had caused the death of the Deceased $ [2^{\mathrm{nd}} $ Element (Amended Charge)]; and

the Appellant had the intention to cause the Deceased's Injuries and the the Deceased's Injuries were sufficient in the ordinary course of nature to cause the Deceased's death $ [ 3^{rd} $ Element (Amended Charge)].

Dr. Jessie Hiu @ Jessie Dorey Hiu Chen Chen (PW2), a forensic pathologist attached to Queen Elizabeth Hospital, Kota Kinabalu, had given the following expert opinion, among others, under s 45(1) of the Evidence Act 1950 (EA):

the Deceased's Injuries constituted ten injuries and included two stab wounds;

one stab wound was on the left side of the Deceased's face;

the second stab wound was on the left front side of the chest of the Deceased which was directed downwards cutting the ribs, muscles, left lung, the covering of the heart and penetrated the heart from the top right part of the heart to the bottom part of the heart $ (2^{n d} $ Stab Wound);

the $ 2^{\mathrm{nd}} $ Stab Wound caused the death of the Deceased; and

the $ 2^{\mathrm{n d}} $ Stab Wound was caused by a sharp weapon, eg., a knife (PW2's Expert Opinion).

Premised on PW2's Expert Opinion, whoever had inflicted the $ 2^{\mathrm{nd}} $ Stab Wound, be him the Appellant or Assailant, would have committed an offence of murdering the Deceased under s 302 PC. Our reasons are as follows:

the $ 2^{\mathrm{nd}} $ Element (Amended Charge) was fulfilled because the $ 2^{\mathrm{nd}} $ Stab Wound caused the Deceased's death;

in the Court of Appeal case of Sainal Abidin Mading v Public Prosecutor [1999] 4 CLJ 215, at 224, Haidar Mohd. Nor JCA (as he then was) delivered the following judgment- "The learned judge after considering the nature of the injuries sustained by the deceased, the number of wounds and the weapon used, correctly, in our view, followed what Thomson, CJ took regarding the nature of the injuries sustained by the victim as an indicator of intention in Tan Buck Tee v. Public Prosecutor [1961] 27 MLJ 176, where the learned CJ said at p. 179: There was the body with five appalling wounds on it, wounds penetrating to the heart and liver, which must have been caused by violent blows with a heavy sharp instrument like an axe. In the absence of anything else, whoever inflicted those blows must have intended to kill the person on whom they were inflicted. The learned judge then concluded at p.145 thus: Accordingly, from the evidence adduced and the surrounding circumstances shown, I am satisfied that the prosecution has established beyond reasonable doubt that in inflicting the injuries sustained by the deceased the accused had, in particular, the intention of causing such bodily injuries and such injuries intended were sufficient in the course of nature to cause death. Hence the first line of defence of the learned counsel for the accused fails." (emphasis added); and

as explained in Sainal Abidin Mading, in view of the nature and extent of the $ 2^{n d} $ Stab Wound, the person who caused the $ 2^{n d} $ Stab Wound-

had the "intention of causing such bodily injury as is likely to cause death" to the Deceased within the meaning of the second limb of s 299 PC; and

had the intention of causing bodily injury to the Deceased, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause the Deceased's death as understood in s 300(c) PC. Based on the above reasons, the $ 3^{\mathrm{rd}} $ Element (Amended Charge) was present in this case.

The sole issue in this case concerns the proof of the $ 1^{\mathrm{st}} $ Element (Amended Charge), namely, whether the prosecution had proven beyond all reasonable doubt that the Appellant (not the Assailant) had caused the Deceased's Injuries and in particular, the $ 2^{\mathrm{nd}} $ Stab Wound. J. Did the circumstantial evidence in this case prove beyond all reasonable doubt that the Appellant (not the Assailant) had caused the Deceased's Injuries?

In Jayaraman & Ors v Public Prosecutor [1982] 2 MLJ 306, at 307 and 310, Suffian LP delivered the following judgment of the Federal Court: "Their appeals to the High Court were dismissed and on their application, the learned Judge who heard the appeal (Syed Othman, FJ), acting under section 66(1) of the Courts of Judicature Act, reserved for our decision the following questions of law of public interest which had arisen in the course of the appeal and the determination of which by the learned Judge had affected the event of the appeal:

Whether it is correct law that in dealing with a case which relies on circumstantial evidence it does not make any difference if a court finds that in considering all the evidence it is satisfied beyond reasonable doubt that the accused is guilty of the offence or if the court says that the evidence points only to the irresistible conclusion that the accused is guilty. So in a case tried without a jury and depending on circumstantial evidence, in our judgment, respectfully following McGreevy [1973] 1 WLR 276; [1973] 1 All ER 503, it is enough for the trial judge to remember only that the prosecution need prove its case beyond reasonable doubt, and failure by him to also say that the circumstances are not only consistent with the accused having committed the crime but also such that they are inconsistent with any other reasonable explanation, is not fatal. In other words, we agree with Encik Mokhtar that the answer to question 1 is yes, it is correct - meaning that in a case depending on circumstantial evidence it is enough if the court merely says that it is satisfied of the accused's guilt beyond reasonable doubt, without further saying that the facts proved irresistibly point to one and only one conclusion, namely the accused's guilt." (emphasis added). It is to be noted that when Jayaraman was decided by the Federal Court, our Parliament had abolished appeals to the Privy Council on constitutional and criminal matters. In other words, the Federal Court which decided Jayaraman, was our apex court then.

The judgment in Jayaraman regarding circumstantial evidence has been applied by our Federal Court in the following two cases:

the decision of Eusofee Abdoolcader FJ in Dato' Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 23, at 275; and

the judgment of Richard Malanjum CJ (Sabah and Sarawak) (as he then was) in Public Prosecutor v Megat Shahrizat bin Megat Shahrur [2013] 3 MLJ 227, at 233.

Premised on Jayaraman, the court can only convict an accused person (X) of an offence based solely on circumstantial evidence if -

the circumstantial evidence can prove beyond all reasonable doubt that X is guilty of the offence; and/or

the circumstantial evidence can only prove that there is one irresistible inference or conclusion regarding X's guilt of the offence.

We have -

perused -

the notes of evidence of the trial court; and

the written submissions of the learned defence counsel and DPP; and

listened to the oral submissions of Mr. Ram Singh and the learned DPP.

In this case, we are satisfied that-

the circumstantial evidence in this case proved beyond all reasonable doubt that the Appellant was guilty of the offence of murdering the Deceased; and

from the circumstantial evidence adduced in this case, there was only one irresistible inference or conclusion that the Appellant had murdered the Deceased. The above decision is based on the following circumstantial evidence and reasons:

there was no sign of a forced entry by the Assailant into the Premises. In fact, the police investigation revealed that after the Incident, the Key (Padlock) was hanging on the grill door of the Premises. These undisputed facts demolished the Appellant's testimony regarding the Assailant;

the Premises was a unit of terrace link house. If the Appellant and Deceased had actually been attacked by the Assailant, they could have easily screamed for help from their neighbours and the Assailant would have run away in fear;

if the Appellant's evidence regarding the $ 1^{\mathrm{st}} $ Struggle and $ 2^{\mathrm{nd}} $ Struggle with the Assailant was true, the Appellant would have suffered severe or life-threatening injuries to his head, neck and/or face. In this case, the Deceased suffered ten injuries, including the fatal $ 2^{\mathrm{nd}} $ Stab Wound but according to PW23's Expert Opinion, the Appellant only sustained non-life threatening injuries;

in paragraph 56 GOJ, the learned High Court Judge did not believe the Appellant's testimony that in the midst of the $ 2^{\mathrm{nd}} $ Struggle in the Living Room, the Deceased suddenly ran out of the Bedroom but stopped at the Living Room and shouted "sudahlah, sudahlah" (which ended in her being stabbed to death by the Assailant). This was because any reasonable person in the Deceased's dire circumstances would have escaped through the open sliding door and grill door of the Premises (without stopping in the Living Room to be murdered by the Assailant). It is therefore clear to us that the Appellant's sworn evidence did not raise any reasonable doubt regarding the existence of the Assailant because his testimony was simply not credible;

the Appellant was not a gullible simpleton but at the material time, he was a serving and experienced IO. Yet, the Appellant lied in the following documents made by himself-

the Appellant's Police Report was made at 4 pm, 2.10.2011, about 3 $ \frac{1}{2} $ days, from the time of the Incident. The Appellant's Police Report stated as follows- "Pada 29/9/2011 jam lebih kurang 0450 Hrs, semasa saya berada di rumah saya di Kompleks Polis IPD Keningau, Saya telah menerima panggilan telefon dari kenalan saya penama [Deceased] yang memaklumkan rumahnya di Taman Andika, cuba dipecah masuk oleh orang yang tidak dikenali. [Deceased] yang merasa takut pada ketika itu telah meminta bantuan saya untuk pergi ke rumahnya. Saya terus pergi ke rumah [Deceased] menggunakan kenderaan saya jenis Mitsubishi Airtreck no. Pendaftaran AEU 7116 warna hitam. Apabila sampai di rumah [Deceased], saya telah meletakkan kenderaan saya betul-betul di hadapan rumah [Deceased]. Pada ketika itu, saya nampak pintu grill dan pintu sliding telah terbuka, saya terus masuk dan mendapati pintu bilik hadapan juga terbuka dan saya lihat [Deceased] sedang bergelut dengan seorang lelaki yang saya tidak kenali. Saya terus bertindak menendang ke arah lelaki itu menggunakan kaki sebelah kanan saya. Dalam keadaan yang gelap lelaki itu telah bertindak balas dengan menikam kaki kanan saya menggunakan senjata tajam menyebabkan kaki kanan saya tercedera. Apabila mengetahui lelaki itu menggunakan senjata tajam saya cuba untuk keluar dari bilik itu. Tetapi lelaki itu telah bertindak menarik baju T-Shirt putih yang saya pakai pada pagi itu dari belakang dan saya cuba meloloskan diri dengan melepaskan baju yang saya pakai. Lelaki itu terus menikam saya di Kawasan ruang tamu dan kami bergelut di situ. Dalam pergelutan tersebut lelaki itu telah menikam saya di bahagian bahu sebelah kanan dan bahagian dada. Saya cuba menangkis tikaman di bahagian dada menggunakan tangan sebelah kiri menyebabkan tangan sebelah kiri saya turut cedera. Ketika pergelutan tersebut saya ternampak [Deceased] berada di ruang tamu berhampiran pintu sliding. Saya menjerit supaya [Deceased] keluar menyelamatkan diri tetapi [Deceased] masih berada di situ melihat pergelutan yang berlaku antara saya dengan lelaki itu. Selepas itu, saya nampak lelaki itu bertindak menikam [Deceased] beberapa kali sehingga [Deceased] terjatuh. Saya menjerit nampak lelaki itu bertindak menggelar di bahagian leher [Deceased] dengan kata-kata “kalau kau mahu rompak, kau ambil lah semua barang-barang di sini, jangan kau kasi mati dia”. Lelaki itu kemudiannya bertindak menyerang saya dengan menolak badan saya sehingga saya tertiarap. Pada masa itu saya tidak dapat berbuat apa-apa kerana kaki kanan saya dan bahagian badan mengalami kecederaan teruk dan banyak pendarahan. Lelaki itu kemudiannya sekali lagi bertindak menikam dibelakang badan saya sebanyak 3 kali dan terus mengambil dompet saya yang berisi Kad kuasa saya, duit lebih kurang RM 500, kad Maybank, Public Bank dan CIMB Bank, lesen memandu B2 dan D, mykad (no. 820203-08-6283) di poket seluar di bahagian belakang. Sebelum lelaki itu melarikan diri saya sempat nampak dia memegang beg tangan dipercayai milik [Deceased] menggunakan tangan kanan manakala tangan sebelah kiri memegang sebilah pisau potong sayur bermatakan steel dan terus melarikan diri melalui pintu hadapan. Saya buat laporan polis untu siasatan dan tindakan lanjut dan untuk dirujuk ke Jabatan Pendaftaran Negara, Pihak Maybank, Pihak Public Bank, Pihak CIMB Bank, Jabatan Pengangkutan Jalan untuk mendapat ganti yang baru serta mendapat gantian Kad Kuasa. Sekian laporan saya." (emphasis added). Firstly, the Appellant's Police Report was false. Any person who makes a false police report, commits an offence under s 182 PC. Reproduced below is s 182 PC- "Whoever gives to any public servant any information orally or in writing which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant to use the lawful power of such public servant to the injury or annoyance of any person, or to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to two thousand ringgit or with both." (emphasis added). Secondly, the detailed Appellant's Police Report was tailored to contrive a defence for him in this case. The false Appellant's Police Report could not be explained, let alone be justified, merely on the ground that the Appellant attempted to keep secret the Affair (Deceased-Appellant); and

(ii) as an experienced and serving IO, the Appellant could not feign ignorance of the following contents of s 112 CPC- "Examination of witnesses by police s 112(1) A police officer making a police investigation under this Chapter may examine orally any person supposed to be acquainted with the facts and circumstances of the case and shall reduce into writing any statement made by the person so examined.

Such person shall be bound to answer all questions relating to the case put to him by that officer: Provided that such person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.

A person making a statement under this section shall be legally bound to state the truth, whether or not such statement is made wholly or partly in answer to questions.

A police officer examining a person under subsection (1) shall first inform that person of the provisions of subsections (2) and (3).

A statement made by any person under this section shall, whenever possible, be taken down in writing and signed by the person making it or affixed with his thumbprint as the case may be, after it has been read to him in the language in which he made it and after he has been given an opportunity to make any corrections he may wish." (emphasis added). According to s 112(4) CPC, the Appellant would have been expressly informed of the contents of s 112(2) and (3) CPC before his two police statements were recorded. By virtue of the proviso to s 112(2) CPC, the Appellant had a right not to answer any question by the police if the answer "would have a tendency to expose him to a criminal charge". However, if the Appellant elected to answer any question when he provided his two statements under s 112 CPC, s 112(3) CPC mandatorily provided that the Appellant "shall be legally bound to state the truth, whether or not such statement is made wholly or partly in answer to questions". Yet, the Appellant's Material Contradiction [2 Police Statements (Section 112 CPC)] was made;

in view of the false Appellant's Police Report and the Appellant's Material Contradiction [2 Police Statements (Section 112 CPC)], the learned High Court Judge was fully justified in not giving any credence to the Appellant's sworn defence;

with regard to the conflict between PW23's Expert Opinion and DW2's Expert Opinion, the learned High Court Judge had given adequate, if not sound, reasons in the GOJ for accepting the former and not the latter. It is to be emphasized that PW23 had the opportunity to examine the Appellant's Injuries [PW23's Examination (Appellant)]. In contradistinction to PW23's Examination (Appellant), DW2's Expert Opinion was merely based on his perusal of photographs and medical report regarding the Appellant's Injuries; and

PW7 gave evidence regarding the Appellant's jealousy of the Affair (Deceased-PW12) and in his fits of jealousy, he had the tendency to hit his own head against the wall and beat his chest repeatedly. The Love Triangle clearly provided a motive for the Appellant to murder the Deceased. Motive for the commission of a crime is relevant under s 8(1) EA which states as follows- "Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact." (emphasis added);

We have not overlooked the submission by Mr. Ram Singh that save for the Appellant's footprints at the scene of the Incident (which had been identified at the trial), there were other footprints which had not been identified by the prosecution. Unhesitatingly, we find no merit in this contention because there was undisputed evidence that the 2 Police Officers entered the Premises and carried the Deceased from the scene of the Incident to the Car. In any event, the circumstantial evidence as explained in the above sub-paragraphs 25(a) to (h) constituted proof beyond all reasonable doubt that it was the Appellant and not the Assailant who had inflicted the Deceased's Injuries, in particular the $ 2^{\mathrm{n d}} $ Stab Wound.

We do not accept the defence submission that there was a break in the chain of evidence regarding the Appellant's blood sample. This was because firstly, the Federal Court's Decision had decided to call for the Appellant's defence on the Amended Charge. Accordingly, the Appellant could not now raise a technical defence with regard to his blood sample. Secondly, even without the evidence that the Deceased's strand of hair was found between the clenched fingers of the Deceased's right hand, the circumstantial evidence as stated in the above sub-paragraphs 25(a) to (h), in our view, constituted proof beyond all reasonable doubt of the Appellant's guilt in this case. K. Whether the High Court's Conviction was safe

We have no hesitation to decide that the High Court's Conviction is safe as explained by the Federal Court's judgment delivered by David Wong Dak Wah CJ (Sabah and Sarawak) in Fong Kong Meng & Anor v Public Prosecutor [2019] 12 MLJ 110, at [19]. The following reasons support this decision:

the learned High Court Judge's finding of fact that the Appellant had murdered the Deceased as charged was not against the weight of evidence - please refer to the Federal Court's judgment delivered by Tengku Maimun CJ in Maria Elvira Pinto Exposto v Public Prosecutor [2020] 3 MLJ 21, at [34]. On the contrary, the circumstantial evidence as explained in the above sub-paragraphs 25(a) to (h), constituted proof beyond all reasonable doubt of the Appellant's guilt in this case;

in comparison to the Court of Appeal, the learned High Court Judge as the trial judge, had the audio-visual advantage to assess the testimonies of the Appellant, PW23 (with regard to PW23's Rebuttal Evidence) and DW2 - please refer to the Federal Court's judgment delivered by Gopal Sri Ram JCA (as he then was) in Public Prosecutor v Mohd Radzi Abu Bakar [2005] 6 MLJ 393, at [25]. We are not satisfied that the High Court had misused the above audio-advantage to commit an error of fact in this case as explained by Syed Othman FJ (sitting as a High Court Judge) in Jayaraman & Ors v Public Prosecutor [1982] 2 MLJ 273, at 274;

the High Court did not commit any error of law or misdirection in respect of the legal burden and standard of proof beyond all reasonable doubt (or the irresistible inference test) required of the prosecution to prove the Amended Charge in this case against the Appellant based solely on circumstantial evidence; and

an appeal to the Court of Appeal against the High Court's Conviction is a continuation of the trial by way of rehearing please refer to the Court of Appeal's judgment delivered by Ahmadi Asnawi JCA in Chukwudi Okonkwo v Public Prosecutor [2018] MLJU 93, at [22]. After a rehearing of this case, albeit by way of an appeal, we are satisfied that the prosecution had succeeded to discharge the legal and evidential burden to prove beyond all reasonable doubt that the Appellant had murdered the Deceased as per the Amended Charge within the meaning of s 182A(1) and (2) CPC.

Premised on the evidence and reasons as stated in the above paragraphs 25 and 28-

we dismiss the Appellant's appeal against the High Court's Conviction; and

the High Court's Conviction is affirmed. L. Should the Court of Appeal substitute the High Court's Death Sentence?

Sections 34 and 39 of the Abolition of Mandatory Death Penalty Act 2023 (AMDPA) provide as follows: "s 34. Amendment of section 302 [PC] Section 302 [PC] is amended by inserting after the words "with death" the words "or imprisonment for a term of not less than thirty years but not exceeding forty years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes". s 39. Transitional Upon the coming into operation of [AMDPA], if a person is convicted by any court for the commission of an offence under section 121,121A, 302 or 364 or paragraph 130C(1)(a),130l(a), 130N(a),130O(1)(aa),130QA(a),130ZB(a) or 374A(a) [PC], the person, whether at a trial or on an appeal, shall be sentenced in accordance with the provisions of [PC] as amended by [AMDPA] even though the offence was committed before the date of coming into operation of [AMDPA].” (emphasis added).

It is clear from s 39 AMDPA that s 34 AMDPA applies retrospectively to the High Court's Death Sentence in this case.

As decided by the Court of Appeal in Robin Radjaini Saih @ Amjan Patta v Public Prosecutor [2024] 6 MLJ 773, at [31], we have an unfettered judicial discretion to substitute the High Court's Death Sentence with the following punishment:

imprisonment for a term of not less than 30 years but not exceeding 40 years; and

if the death sentence is not imposed, the Appellant shall also be punished with whipping of not less than 12 strokes.

We invited submission from Mr. Ram Singh and the learned DPP on whether we should exercise our discretion to substitute the High Court's Death Sentence.

Mr. Ram Singh urged us to substitute the High Court's Death Sentence with a minimum sentence of 30 years' imprisonment and 12 strokes of whipping. He had relied on the following mitigating factors:

before this case, the Appellant had a clean record. In other words, the Appellant was a first offender;

the Appellant is married with two young children of six and eight years old respectively;

pending the final disposal of this case, the Appellant was and is still under remand for more than four years; and

the Appellant is now 42 years old (Appellant's Mitigating Circumstances).

The learned DPP attempted to persuade us to maintain the High Court's Death Sentence on the following grounds:

the Deceased had been brutally stabbed by the Appellant;

due to the Love Triangle, the Appellant had the motive to murder the Deceased; and

the Appellant had committed this heinous offence while he was a serving IO.

After considering the submissions by the learned defence counsel and DPP, we exercise our discretion to maintain the High Court's Death Sentence. This exercise of discretion is premised on the following grounds:

it is in the public interest to affirm the High Court's Death Sentence because -

this court must convey a clear message to all police officers to uphold the law and not to breach it. Hence, the need for capital punishment in this case as a public deterrence to all police officers who commit the offence of murder;

the Appellant had murdered the Deceased while he was a serving police officer. All police officers are required by s 13 of the Police Act 1967 (PA) to take an oath prescribed in the Second Schedule to the PA [Declaration of Office (Police Officer)] as follows- "DECLARATION OF OFFICE I, (name), do solemnly, sincerely and truly declare that I will well and faithfully serve as (appointment) of the Royal Malaysia Police and will obey, uphold and maintain the laws of Malaysia, and that I will execute the powers and duties of my office honestly and diligently." (emphasis added). By murdering the Deceased, the Appellant had betrayed his Declaration of Office (Police Officer) to "obey, uphold and maintain" the law;

the offence committed by the Appellant in this case was most severe, ie., the Appellant had intentionally taken another person's life;

the Appellant had used violence and great force to kill the Deceased with a knife. The Deceased had suffered ten injuries and the $ 2^{n d} $ Stab Wound was indeed horrific;

after murdering the Deceased, the Appellant attempted to conceal the offence by alleging that the Deceased had been killed by the Assailant who broke into the Premises to rob the Deceased. Worse still, the Appellant had the temerity to make the false Appellant's Police Report and the Appellant's Material Contradiction [2 Police Statements (Section 112 CPC)]; and

the Appellant had not shown any remorse or repentance. Until the decision of this court, he still maintained his innocence and alleged that the Deceased had been killed by the Assailant (Public Interest Considerations); and

the Public Interest Considerations far out-weigh the Appellant's Mitigating Circumstances in this case.

In view of the reasons stated in the above paragraph 36, we are constrained to maintain the High Court's Death Sentence. DATE: 3 JUNE 2025 WONG KIAN KHEONG Judge Court of Appeal For the Appellant: Mr. Ram Singh & Ms. Chen Wen Jye (Messrs Ram Singh & Co.) For the Respondent: Encik Mohd. Amril bin Johari (Deputy Public Prosecutor) (Attorney General's Chambers)