Arshad Bin Masdin v Pendakwa Raya (S-09-49-02/2023)

The appellant was charged and tried in the Session Court at Kota Kinabalu under section 376(2)(a) of the Penal Code [Act 574] read together with section 511 of the same for the offence of attempted rape. The charge read as follows: "Bahawa kamu pada 15hb Julai 2018 jam lebih kurang 0030 pagi, bertempat di dalam Bilik No B06 Kolej Kediaman Tun Mustafa Universiti Malaysia Sabah, di dalam Kota Kinabalu, di dalam negeri Sabah, telah cuba melakukan rogol keatas penama Anis Ayunie S/N hn59L5pAUWk4sb1fw92gA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Binti Mat Amran (No. KP: 000707-03-0300) dan dalam percubaan itu telah melakukan perbuatan bagi melakukan kesalahan tersebut iaitu menanggalkan baju secara paksa dan mengoyakkan baju dalam mangsa dan dengan itu kamu telah melakukan suatu kesalahan di bawah seskyen 376(2)(a) Kanun Keseksan dan boleh dihukum di bawah seksyen 376(2) Kanun Keseksaan yang sama dibaca bersama seksyen 511 Kanun yang sama.

On 30 September 2019, the learned Session Court Judge ruled that the prosecution had established a prima facie case against the appellant and ordered him to enter his defence.

The appellant chose to give evidence on oath and called three witnesses including himself.

On 30 June 2020, the learned Session Court Judge held that the charge had been proven beyond reasonable doubts. The appellant was convicted and sentenced to thirteen (13) years imprisonment from the date of conviction with six (6) stokes of whipping and also with three (3) years of police supervision after serving the sentence under section 376(2)(a) read together with section 511 of the Penal Code.

Dissatisfied, the appellant appealed to the High Court.

On 9 February 2023, the High Court dismissed the appeal and affirmed the conviction and sentence imposed by the Session Court. S/N hn59L5pAUWk4sb1fw92gA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

On 15 February 2023, the appellant filed notice of appeal to the Court of Appeal against the conviction and sentence.

On 15 July 2010, at about 0030 am, PW5 (the victim) who was staying at room No. B06, Kolej Kediaman Tun Mustafa, Universiti Malaysia Sabah (UMS) went to the toilet without locking her room door because the toilet was near to her room.

When the victim was inside the toilet, she saw someone's shadow entering her room where she thought it was her friend, Odi.

The victim then went back to her room, but as she entered the room, there was no one on the bed. She went to her study table.

Suddenly, she saw someone's shadow moved towards her from the back. That person went on to cover her mouth using that person's hand. She tried to call for help and resisted but wasn't able to do so. The victim fell to the ground after she was punched by the assailant. When she was on the floor, the assailant tried to tie her hands but she fought against the assailant while facing down. The assailant was pinning her from her back when she notices the assailant was wearing a face mask. She felt scared and there was a struggle between her and the assailant. The assailant then slapped her face and punched her right eye.

When the victim was in pain and became weak, the assailant then strangled her and lifted her on the bed. The assailant then tied both the victim's hands and legs on the bed before switching off the room light. S/N hn59L5pAUWk4sb1fw92gA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 There was light entering the room from outside the room door. The assailant then took off his mask. Then she saw the assailant’s face.

The victim's shirt and bra were ripped / taken off by the appellant. He then licked her breasts. When the appellant wanted to rape the victim, the appellant told the victim to “main di bawah awak" (to commit sexual intercourse). The victim refused and told the appellant that she was having her menses. The appellant touched the victim's private part and realised that the victim was wearing a pad.

When the appellant failed to rape the victim, the appellant then forced the victim to perform oral sex. After the appellant ejaculated, the appellant then left through the window of the victim's room.

When these incidents happened, it was raining heavily and nobody could hear what happened in the victim's room.

Before the appellant left the room, the appellant took the victim’s ATM card and mobile phone.

The victim was rescued by her friends after they heard the victim was crying for help when they were going to the toilet for the morning prayer.

The victim then lodged a police report on 15 July 2018 at about 10.50 am. S/N hn59L5pAUWk4sb1fw92gA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

Soon after the incident, the victim was admitted to Hospital Likas and subsequently the victim been examined by Dr. Noor Hasliza binti Zakaria (PW1).

While the victim was admitted to the hospital, the police had called the victim for an identification parade during which she managed to identify the accused as the appellant who had entered her room, attempted to rape her, sexually abused her, assaulted her and caused her injuries.

On 17 July 2018, at about 2.00 am, the appellant was arrested by the police (exhibit P2).

On 18 July 2018 at about 6.18 pm, the appellant had given a piece of written information to the police of the location where the appellant had thrown the victim's ATM card and mobile phone (exhibit P5).

The appellant worked as a security guard at UMS. He arrived at UMS at around 10.30 pm. He reported for duty at Pejabat Bahagian Keselamatan UMS around 11.45 pm. He started duty from 12.00 am on the 15th July 2018. He then watched the World Cup matched between England and Belgium.

After the matched, the appellant was called for a roll-call in order to make sure the attendance of the pegawal keselamatan UMS. The roll-call was supervised by SM Yuzri Janin. According to the appellant, apart from S/N hn59L5pAUWk4sb1fw92gA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 himself, Mohd Fazil Bin Ebeh (PW12), Norhafizan Bin Norjaip (PW13) and PW15 were also presence during the roll-call.

After the roll-call, the appellant went to Dewan Canselor and then to the operation room to report that the appellant, PW15 and Afhriaem Selmond Suntang (PW11) had arrived at the said Dewan. The appellant had written that he was on duty and had arrived at Dewan Canselor at 0001 on the 15 July 2018 (exhibit P33).

The appellant left the said building with his car Perodua Alza QCF6439 to buy dinner at Kingfisher. He then returned to Dewan Canselor. The appellant stayed at the operation room and watched a movie CZ12 from his laptop while having his dinner.

At about 1.20 am, his supervisor (duty officer) accompanied by security officer Kersey arrived at Dewan Canselor Pos A7 by using Pajero car. The appellant was aware of the presence of the supervisor when he heard honking from the said car.

SM Yuzri and Kersey arrived at Dewan Canselor by driving a Pajero. Kersey then makes some long horn in order to let the appellant know that they had arrived at the said place. The appellant then went out from the operation room and brought the attendance book to get the signature of his supervisor but failed as his supervisor left the said Dewan Canselor Pos A7 due to bad weather.

After they left, the appellant went back to the operation room and continued to watch movie until he fell asleep. S/N hn59L5pAUWk4sb1fw92gA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8

The next day, at about 6.00 am, PW15 went to the operation room and he knocked the door until the appellant woke up and opened up the door. The appellant told PW15 to close the report book before leaving the operation room.

The appellant on 15 July 2018 from 12.00 am until 6.00 am was not at the crime scene. The appellant’s defence was alibi.

During the prosecution case, the defence had served a notice of alibi to the prosecution for the witnesses namely Yuzri Janin, Misum Lanuis and Kersey Jack. Summary of The Session Court Decision

Defence failed to call his alibi witnesses. Section 114 (g) of the Evidence Act 1950 be invoked against the defence.

PW11 and PW15 denied that they have met the appellant in the Dewan Canselor on 15 July 2018. Hence, the appellant evidence turned to be a mere denial.

Failure by the defence to update the Court as to the status of exhibit P36 that was supposed to be referred to the Chemistry Department rendered section 114 (g) of the Evidence Act 1950 to be invoked against the defence’s case.

The evidence of appellant’s sister, Mahirah binti Masdin (DW2) and Massalinri bin Mohd Tahir (DW3) that they met PW15 after the incident is merely an afterthought as it was never raised or put to PW15 during the S/N hn59L5pAUWk4sb1fw92gA prosecution’s case. Given the relationship between DW2 and DW3 to the appellant, their evidence in court need to be treated with great caution.

As there was no report of patrolling on the part of the appellant as on exhibit P30 and exhibit P33, it can be inferred that the appellant was not at the Dewan Canselor but was at the Kolej Kediaman Tun Mustafa UMS. Therefore, the appellant’s evidence that he was at Dewan Canselor at that particular date and time is not credible.

Even if the result of the DNA was negative (exhibit P41), it does not mean that the attempted rape has never been committed by the appellant. The prosecution has led credible evidence that the appellant had attempted to rape the victim.

The victim has identified the appellant as the person who forced himself on her and then fled the scene not from the main door and to the car parking area but through the window of the victim's room.

Aside from the identification of the appellant by the victim, the appellant’s knowledge of the victim's ATM card and mobile phone when giving information to the police through exhibit P36 positively links him to the incident in the victim's room and corroborates the victim's version of the event on that night.

The appellant’s failed to call his three (3) alibi witnesses and the remaining two (2) defence witnesses (DW2 and DW3) being family members, were interest parties. S/N hn59L5pAUWk4sb1fw92gA

The learned Session Court Judge was best placed to assess the veracity of witness’s testimony and thus her finding should not be disturbed.

The sentence meted out was not manifestly excessive.

Insufficient evidence to prove the elements of attempted rape;

Identification evidence of the appellant was not of good quality;

The appellant DNA was not found in the items seized from the crime scene and from the victim’s nail clippings (exhibit P58(A));

The presence of DNA profile of unknown male person found on the victim's brassiere (exhibit P61) and fingernails (exhibit P58(A)) and on the window grill of the crime scene (exhibit P45);

The absence of the victim's blood on the appellant’s items (exhibits P47, P48, P49, P50, P51, P52, P53, P54, P55(A&B) and P56) which were seized by the police;

Information given by the appellant under section 27 of the Evidence Act 1950 is inadmissible;

The appellant’s defence was not a mere bare denial as he served notice of alibi to the prosecution prior to the commencement of trial; S/N hn59L5pAUWk4sb1fw92gA

Adverse inference cannot be invoked against the appellant for non-calling of certain witnesses during the trial;

The evidence of DW2 and DW3 corroborated the appellant’s evidence and rebutted the prosecution's evidence;

The prosecution’s evidence corroborated the appellant’s defence of alibi; and

Alternatively, the sentence imposed on the appellant’s is manifestly excessive. The Law on Appellate Intervention [33] An appellate court should be slow in disturbing the findings of facts arrived by the trial court who had the advantage of seeing and hearing the witnesses, unless there are substantial and compelling reasons for disagreeing with the finding. [34] In Che Omar Mohd Akhir v. Public Prosecutor [2007] 3 CLJ 281, the Federal Court speaking through Nik Hashim FCJ (as he then was) held as follows: “It is trite law that an appellate court should be slow in disturbing a finding of facts by the trial judge unless such finding is clearly against the weight of evidence which is not the case here". [35] We shall only refer to another Federal Court judgment in Lai Kim Hon & Ors v. Public Prosecutor [1981] 1 MLJ 84. In that case, in a S/N hn59L5pAUWk4sb1fw92gA passage quoted by the Court of Appeal in the instant appeal, Abdul Hamid FJ (as he then was) said: Viewed as a whole it seems clear that the finding of fact made by the trial judge turned solely on the credibility of the witnesses. The trial judge heard the testimony of each witness and had seen him. He also had the opportunity to observe the demeanour of the witnesses. Discrepancies will always be found in the evidence of a witness but what a judge has to determine is whether they are minor or material discrepancies. And which evidence is to be believed or disbelieved is again a matter to be determined by the trial judge based on the credibility of each witness. In the final analysis it is for the trial judge to determine which part of the evidence of a witness he is to accept and which to reject. Viewed in that light we did not consider it proper for this court to substitute its findings for that of the learned trial judge. The principle of law governing appeals in criminal cases on questions of fact is well established, in that the Appeal Court will not interfere unless the balance of evidence is grossly against the conviction especially upon a finding of a specific fact involving the evaluation of the evidence of a witness founded on the credibility of such witness. [36] In Ng Hoo Kui & Anor v. Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 12 MLJ 67 the Federal Court held that: S/N hn59L5pAUWk4sb1fw92gA “[33] It was a long-settled principle, stated and restated in domestic and wider common law jurisprudence, that an appellate court should not interfere with the trial judge's conclusions on primary facts unless satisfied that he was plainly wrong' (the Supreme Court of United Kingdom in McGraddie v. McGraddie and another [2013] 1 WLR 2477)”. “(5) The 'plainly wrong' test operated on the principle that the trial court had had the advantage of seeing and hearing the witnesses on their evidence as opposed to the appellate court that acted on the printed records. The 'plainly wrong' test was not intended to be used by an appellate court as a means to substitute its own decision for that of the trial court on the facts. As long as the trial court's conclusion could be supported on a rational basis in view of the material evidence, the fact that the appellate court felt like it might have decided differently was irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence was examined by the appellate courts (see paras 34, 76 & 148)".

(A) Whether the appellant was the person who sexually assaulted the victim. [37] The DNA analysis (exhibit P41) dated 9 November 2018 carried out by the Chemistry Department showed that DNA of an unknown male was found on the following places: S/N hn59L5pAUWk4sb1fw92gA

the victim's fingernails (exhibit P58(A));

(ii) the victim's brassiere (exhibit P61) worn during the assault; and

(iii) the window grill of the crime scene (exhibit P45) which was used by the assailant to exit the victim's room. [38] The evidence to show that the appellant had made physical contact with the places mentioned above are as follows: Physical contact between the appellant and the victim's body [39] PW5 testified (see Enclosure 8 pages 115-195 Record of Appeal Vol. 3) and we now reproduced: Jadi boleh kamu beritahu kepada Mahkamah ketika lelaki itu menutup mulut kamu, melawan yang macamana itu? Saya ada gigit tangannya lepas itu saya ada meminta tolong tapi dia still lagi tutup mulut saya dengan kuat lepas itu saya ada beberapa kali hendak melawan lepaskan diri, saya pasti dia ada tumbuk muka saya pada masa itu, tumbuk mata. Jadi selepas kamu mendapati kamu terjatuh di atas lantai kemudian apa? Masa berlaku pergelutan dia cuba unruk ikat tangan saya lepas itu masa itu saya cuba hendak melawan lepas itu dia dah ambil bantal dan tekupkan di atas muka saya. S/N hn59L5pAUWk4sb1fw92gA Tadi kamu memberitahu juga terdapat pergelutan ketika berada di atas lantai. Kamu masih ingat berapa lama pergelutan itu terjadi? Dalam 5 minit. Selain daripada itu, apa lagi lelaki itu telah buat kepada kamu? Lelaki itu suruh saya pegang kemaluannya. Memegang kemaluan lelaki itu, adakah kamu maksudkan kemaluan lelaki itu selain dipegang oleh kamu kamu juga menggosok-gosokkan kemaluan itu dengan menggunakan tangan? Ya. Physical contact between the appellant and the victim's brassiere [40] PW5 testified and following question and answers read: Selepas daripada itu, apa yang berlaku? Dia buka baju lepas itu dia buka saya punya baju dalam. Jadi bermakna lelaki itu membuka t-shirt lengan pendek kamu kemudian dia buka baju dalam kamu? Ya S/N hn59L5pAUWk4sb1fw92gA Tadi kamu ada memberitahu lelaki itu telah sentap baju dalam kamu. Sentap itu kamu maksudkan apa? Dia tarik. Lelaki itu tarik baju dalam kamu daripada arah mana? Depan. Setelah lelaki itu menarik baju dalam kamu kemudian apa yang berlaku? Setelah tarik baju dalam lelaki itu pegang body saya. Physical contact between the appellant and the victim's room window grill Selepas itu apa yang terjadi? Macam dia keluar dari tingkap bilik saya itu, saya rasa sebab bunyi air hujan sebab masa itu hujan. Saya memang pasti dia memang keluar ikut tingkap. Lelaki itu keluar melalui tingkap bilik kamu, betul? Betul. S/N hn59L5pAUWk4sb1fw92gA Saya cadangkan kepada kamu semasa lelaki tersebut keluar melalui tingkap bilik kamu, cap jari boleh didapati di grill dan juga tingkap bilik kamu, setuju? Setuju. Boleh kamu jelaskan kepada Mahkamah kenapakah kamu setuju cap jari boleh didapati di grill dan juga tingkap bilik kamu semasa lelaki itu keluar melalui tingkap bilik kamu? Sebab malam itu saya memang tutup tingkap dan grill tingkap bilik saya juga bertutup dan bila dia keluar daripada bilik saya melalui tingkap semestinya dia kena buka grill dan tingkap itu kan jadi memang saya pasti terdapat cap jari suspek di tingkap dan grill bilik saya. [41] The result of exhibit P41 can be summarized as follows:

The DNA found on the window grill did not match with the appellant's DNA.

(ii) The appellant was excluded from being the male-origin DNA found on the nail clipping and brassiere. Instead, DNA of an unknown male was found on those two items. S/N hn59L5pAUWk4sb1fw92gA Failure to consider the absence of victim blood on the appellant’s clothing. [42] The following matter is also connected with the DNA evidence. The learned Sessions Court Judge also failed to consider the absence of the victim's blood on the appellant’s clothing (jackets, a pair long pants and t-shirt, under wear, a belt, uniform and a pair of boots) which were seized by the police. [43] The victim's nose was bleeding when she was forced to kiss the appellant's body and the appellant then forced victim to perform oral sex. victim testified (see Enclosure 8 pages 188-Record of Appeal Vol. 3) and we now reproduced: Saya cadangkan kepada kamu incident oral sex tersebut kejadiannya lama, setuju? Betul Masa kejadian oral sex tersebut keadaannya gelap, setuju? Betul Saya cadangkan kepada kamu semasa kamu mencium tubuh badan lelaki tersebut, darah boleh terdapat di tubuh badan lelaki tersebut, setuju? Setuju. S/N hn59L5pAUWk4sb1fw92gA Saya cadangkan kepada kamu darah kamu juga boleh terdapat di baju lelaki tersebut yang dipakainya pada malam tersebut, setuju? Setuju [44] The appellant’s clothing which were seized, analysed and tendered in court were the one which he wore on duty on 15 July 2018 (the night of the incident) as admitted by PW22 (see Enclosure 11 pages 718-719): Saya rujuk kamu kepada P11(9) dan (10). Berdasarkan gambar tersebut pakaian yang dirampas oleh pasukan kamu adalah daripada bakul-bakul yang terdapat di gambar tersebut, setuju? Setuju. Dan pakaian-pakaian tersebut adalah pakaian kotor OKT yang belum dibasuh, setuju? Setuju. Saya rujuk kamu kepada P11(13). Berdasarkan gambar tersebut, kasut OKT bersih, setuju? Saya cadangkan kepada kamu bahawa pakaian yang ditunjukkan oleh OKT dan dirampas oleh pasukan siasatan kamu adalah pakaian-pakaian yang dipakai semasa OKT bertugas pada 15.07.2018, setuju? Setuju. S/N hn59L5pAUWk4sb1fw92gA Saya cadangkan kepada kamu bahawa pakaian yang ditunjukkan oleh OKT dan dirampas oleh pasukan siasatan kamu adalah pakaian-pakaian yang dipakai semasa OKT bertugas pada 15.07.2018, setuju? Setuju. [45] Unfortunately, the learned Sessions Court Judge did not deliberate extensively the DNA evidence (exhibit P41) linking the appellant to the crime scene. Furthermore, the Learned Sessions Court Judge also did not consider the absence of the victim's blood on the appellant’s clothing which he wore that night. Exhibit P41 showed that those clothing, which was unwashed when they were seized by the police, did not have the victim's blood (the victim's nose was bleeding due to the physical assault by the appellant). [46] In concluding her judgment on the of DNA evidence, the learned Sessions Court Judge at the end of trial only had this to say: “In light of the above authority, even if there was no DNA found, it does not mean that the attempted rape has never been committed by the Accused. The Prosecution has led credible evidence that the Accused had attempted to rape the victim”. [47] We are satisfied that the above statement makes it patent that the learned Sessions Court Judge's finding cannot be justified or accepted in the light of the DNA evidence. S/N hn59L5pAUWk4sb1fw92gA [48] In the present appeal, DNA evidence excluded the appellant as the owner of the DNA found on the victim's finger nail, her bra and the window grill of her room. The said DNA evidence belonged to an unknown male. It is thus against the available evidence to rule that the appellant was the assailant. The DNA evidence prevails over the evidence of the victim. [49] If the learned Sessions Court Judge had properly considered the DNA evidence, she would definitely arrived to a different conclusion and found that the identification of the appellant by victim was not credible and unsafe to rely on. Hence in the absence of any DNA evidence of the appellant, in our view it can give rise to a reasonable inference that the appellant may not be the culprit at the crime scene. This could be a case of mistaken identity. However, the learned Sessions Court Judge had ignored the DNA evidence which totally excluded the appellant as the perpetrator. Hence, failure to consider such material evidence is a miscarriage of justice. [50] Of course, the learned Sessions Court Judge had the advantage of seeing and hearing the victim evidence. But, we do not think that it is just a matter of seeing and hearing the witness. What is more important, in the circumstances of this case, is to look at the broader picture, including all the surrounding circumstances enumerated above. [51] This, with respect, the learned Sessions Court Judge had failed to do. We are unable to agree with the firm finding of the Sessions Court and the High Court that the victim’s evidence is credible and truthful witness. Evidence does not support such a finding. As such, we are really in no position to say that her story is unusually convincing nor can we find any reason to give it special weight that warrants a conviction to be recorded S/N hn59L5pAUWk4sb1fw92gA on her evidence alone. In our view, there is a serious misdirection that warrants this court to intervene, interfere and reverse the concurrent finding of fact made by the two courts on the identification issue. [52] In this respect, the dicta of Abdul Hamid CJ (Malaya) (as he then was) in Teoh Hoe Chye v. Public Prosecutor [1987] 1 CLJ 471; [1987] CLJ (Rep) 386 quoting Ong Hock Thye Ag. CJ (Malaya) in Sia Soon Son v. Public Prosecutor [1966] 1 MLJ 116 (FC) is worth quoting: “In this regard, it behoves us to reiterate that "the requirement of strict proof in a criminal case cannot be relaxed to bridge any material gap in the prosecution evidence. Irrespective of whether the court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else..." (Sia Soon Son v. Public Prosecutor [1966] 1 MLJ 116). [53] In the instant case, there can be no doubt that when the identity of a culprit is in question, forensic evidence plays an important role in determining the identity of the culprit as decided by the Federal Court in PP v. Mansor Md. Rashid & Anor [1997]1 CLJ 233 at page 250: “Where the identity of a culprit is in question or required to be proved, fingerprint evidence would be of great significance and immense value. In the present case under appeal, however, the charge alleged trafficking in the form of sale and there is evidence indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence on the newspaper wrapping, white S/N hn59L5pAUWk4sb1fw92gA plastic and the loytape, therefore, assumes little value or significance". [54] Similar sentiment was held taken by the Court of Appeal in Cheu Kok Choon v. PP [2017] 1 LNS 1477 that: “[12] It is only in a situation where the identity of the culprit is in question or required to be proved, fingerprint or DNA evidence will greatly help the prosecution in proving the identity of the offender...". [55] Scientific and forensic evidence is a relevant evidence which can greatly assist the court in arriving at a just decision either for the prosecution or the defence. This is acknowledged by the Court of Appeal in Edy S v. PP [2013] 9 CLJ 48 where David Wong Dak Wah J (as he then was) held as follows: “[28] The use of DNA evidence in criminal trial is most prevalent in recent times and this is understandable as it is such a powerful tool that it can obtain a conviction as well as gaining an acquittal for those wrongly accused. With the exception of identical twins, no two people have the same DNA. Hence in a sexual offence cases, the presence of biological evidence such as hair and semen or blood of a suspect on the victim or at the place of incident can place that suspect at the scene of the crime. This evidence when properly collected and analysed is enough to convict a person of a crime as that proof amount to proof beyond reasonable doubt. As such, the law demands that the court must ensure that when dealing with DNA evidence that all the strictest guidelines are complied with”. S/N hn59L5pAUWk4sb1fw92gA [56] In PP v. Hanif Basree Abdul Rahman [2008] 4 CLJ 1, the Federal Court through the judgment delivered by Zaki Tun Azmi PCA (as he then was) held as follows: “[21] The discovery of the use of DNA (deoxyribonucleic acid) has really revolutionized criminal investigations. Its use has assisted in getting convictions of the guilty and release of the innocent. [25] In this case, the prosecution's case becomes hampered with the existence of the DNA belonging to the "Unknown Male 1". Several inferences could be made from the findings of such evidence on the body of the deceased. The discovery of the accused's DNA profile on the body of the deceased per se cannot be sufficient to conclude that he caused her death. There could be so many explanations why his DNA was found on her body. Bearing in mind the accused's intimate relationship with the deceased, innocent explanations could be given of such findings”. [57] For all the above reasons, we are not prepared to uphold the conviction. The defence of the appellant should not have been called at the first place; let alone convicted him even after the defence was called.

(B) Alibi Defence [58] The learned Sessions Court Judge rejected the appellant alibi defence as a mere bare denial because the appellant did not call his witnesses namely Yuzri Janin, Misum Lanuis and Kersey Jack and she found it uncorroborated. In her judgment she went on to say: S/N hn59L5pAUWk4sb1fw92gA “[81] When the Defence was called, the Defence has every opportunity to call these alibi witnesses. However, none of them were called to support the Accused's version that he was indeed in the Dewan Canselor on the particularly day and time. The Accused's failure to call these alibi witnesses rendered section 114(g) of the Evidence Act to be invoked against him that if these witnesses are called to give evidence, their evidence would be unfavourable to the Accused. [85] Therefore, as the evidence of the Accused is not corroborated by PW11 and PW15, I find that his evidence is mere denial”. [59] With respect, this is not the position in law. There is no duty on the appellant to call any evidence at all. The appellant is at liberty to adopt one course of action and not the other. Indeed, it is the appellant’s choice and whatever choice he makes, no unfavourable inference should be drawn against him. In any case his alibi evidence need not be corroborated. We agree with learned counsel for the appellant that the Learned Sessions Court Judge misdirected herself when she invoked section 114(g) of the Evidence Act 1950 against the appellant for failing to call his witnesses. [60] It is trite that once an appellant person pleads an alibi, he does not assume the burden to prove it is true. The onus is on the prosecution to prove by evidence that the alibi is false and to place the appellant squarely at the scene of crime. The evidence of his alibi need only raise a reasonable doubt that he committed the crime. The alibi of the appellant does not have to be corroborated by independent evidence in order to raise a defence. (see the Federal Court decision in Duis Akim & Ors v. PP [2013] 9 CLJ 692). S/N hn59L5pAUWk4sb1fw92gA [61] In Illian & Anor v. PP [1988] 1 LNS 139, the then Supreme Court, in dealing with the issue of alibi held that as regards the defence of alibi, all that an appellant person had to do is to raise a reasonable doubt that he was the person at the scene of the crime. The proper approach is for the learned Sessions Court Judge to consider at the close of the defence case whether he had indeed succeeded in doing so. It was also held that section 114(g) of the Evidence Act 1950 cannot be invoked against an appellant person nor can the failure of the appellant to call any witness be made the subject of comment at a criminal trial. [62] In Goh Ah Yew v. PP [1948] CLJU 13, the Court of Appeal held: "No inference can be drawn against an accused person in a criminal trial. There is no duty upon an accused person to call any evidence. He is at liberty to offer evidence or not as he thinks proper and no inference unfavourable to him can be drawn if he adopts one course rather than the other". [63] In Tay Kok Wah v. Public Prosecutor [2012] 4 CL.J 337 the Court of Appeal held that it is settled law that no adverse inference can be drawn against an accused person if he offers no evidence, an accused person is under no duty to call any evidence. The burden of proof may shift to an accused person if presumption of law operates to presume certain facts as proved until evidence to the contrary is proved. [64] The Court of Appeal held in Sepideh Golrokhfar Abdollah v. PP [2016] 3 CLJ 895, that no burden is placed on the accused to call witnesses to corroborate her defence in court. Zamani A Rahim JCA (as he then was) delivering the judgment of the court held as follows: S/N hn59L5pAUWk4sb1fw92gA “[33] The trial judge also seemed to have placed a burden on the defence to call Abbas to testify in court. According to the trial judge, there was no attempt by the defence to call Abbas as witness and as such, the appellant's defence cannot be believed. It is trite law that there is burden placed on the appellant to call witnesses to corroborate her defence in court. By disbelieving the appellant's version of the story for failure to call Abbas as a witness, the trial judge had clearly placed a duty on the defence which is clearly erroneous and a misdirection”. [65] In Mahmud Famili Zaudin @ Faudin & Anor v. PP [1995] 1 LNS 126 it was held as follows: “As regards to the defence of alibi, all that the accused needed to do was to raise a reasonable doubt that he was the person at the scene of crime”. [66] The court in Shanmugam v. PP [1962] 1 LNS 186 also held that: “Where the defence to a criminal charge is an alibi it was not necessary that the accused prove his alibi beyond reasonable doubt. All that he has to do is to cast a doubt upon the prosecution story. It is not necessary for this to be achieved that the evidence of the accused should be corroborated.” [67] In short, the learned Sessions Court Judge had treated the defence improperly and this had prejudiced the appellant. Hence, this is a proper case which warrant appellate intervention. S/N hn59L5pAUWk4sb1fw92gA Identification Parade [68] The identification parade was also conducted unfairly towards the appellant and therefore should be disregarded. The unfairness started when the victim had seen the appellant's face when she was shown photograph of the appellant while she was at the hospital and subsequently she identified the appellant from the photograph. [69] Evidence from PW20 (Insp James Paran): Bagaimana keadaan emosi mangsa ketika kamu berjumpa dengannya di hospital? Dia dalam keadaan trauma, menangis dan terlalu takut untuk melihat suspek maksudnya bila saya tunjukkan gambar suspek mangsa takut dan menangis. Boleh kamu sahkan kepada Mahkamah siapa suspek yang dimaksudkan? Gambar Arshad [70] Later, on 18 July 2019, identification parade was conducted by PW18 (Insp Mustapha Rambli) and the victim identified the appellant in this parade as the perpetrator of the said offence. [71] On the issue of identification parade, the learned deputy public prosecutor had rightly conceded that several parts of the identification S/N hn59L5pAUWk4sb1fw92gA parade were not made by PW18 in accordance with Perintah Tetap Ketua Polis Negara and also the guideline set forth by legal authority. [72] In the instant case, having considered the factual matrix of the matter on the aspect of identification, we find that the court identification was defective, irregular and improperly held. It was a bad identification. Hence, we find that the subsequent court identification by victim is of little value or significance. Whether information leading to discovery (section 27 of the Evidence Act 1950) is inadmissible. [73] The learned Session Court Judge has inferred that the appellant was present at the victim's room based on his oral statement to PW20 and in writing (enclosure 7 page 72-75 ROA Vol 2) when she stated in her judgment as follows: “[57] In the present case, the Prosecution had led evidence that the accused had uttered the following words to PW20: "itu hp dan kad atm perempuan itu saya telah buang di lereng bukit dekat belakang asrama KKTM" [58] The above information from the accused had been recorded in Exhibit P5 and P36. [59] The learned counsel for the accused submitted that the said information cannot be admitted under Section 27 of the Evidence S/N hn59L5pAUWk4sb1fw92gA Act 1950 as the strict requirements under Section 27 have not been fulfilled by the Prosecution. [60] Section 27 of the Evidence Act 1950 provides as follows: - How much of information received from accused may be proved.

(1) When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. [66] The fact that the Accused told the police officer, PW20 and made a written statement (Exhibit P36) that he threw the victim's mobile phone and ATM Card at the hillside behind the victim's hostel is sufficient to establish the fact that he was there at the material time and his mental state of mind to conceal evidence after causing serious injury to the victim, sexually assaulted her, and attempted to rape her. [67] I find that P36 is a piece of admissible evidence that would also infer the presence of the Accused at the crime scene at the material time." [74] On the issue of improper admission of exhibit P36 by the learned Session Court Judge, we find that she was in error in allowing or admitting S/N hn59L5pAUWk4sb1fw92gA such inadmissible evidence when there was no evidence of the discovery of the items mentioned in the oral and written statements. [75] Thus, when such items were not discovered, the oral and written statements cannot be admitted as evidence under the said section. The learned deputy public prosecutor had rightly conceded that exhibit P36 cannot be considered as evidence under section 27 of the Evidence Act 1950 because the victim’s handphone and her ATM card were not found or recovered by the police. [76] The cases which decided on this principle is, first, the Supreme Court in Wai Chan Leong v. PP [1989] 1 CL.J Rep 171 where Gunn Chit Tuan SCJ (as he then was) delivering the judgement of the court held as follows: Secondly it must be borne in mind that for s. 27 of the Evidence Act to apply, the information must be such as has caused discovery of a fact. In other words, the fact must be the consequence and the information the cause of its discovery. Moreover, the information must relate distinctly to the fact discovered. (Chong Soon Koy v. Public Prosecutor [1977] 2 MLJ 78, 79; Pulukuri Kotayya v. King Emperor 74 I.A 65 at p. 77). [77] The next case is Hamiron bin Mat Udin & Ors v. PP [1947] CLJU 32, where the Court of Appeal through the judgment delivered by Murray-Aynsley CJ (as he then was) held as follows: It was claimed by the prosecution that it was as a result of the statements made by accused that the body was found; and also that S/N hn59L5pAUWk4sb1fw92gA it was because of accused's statement that the Police Inspector was able to identify the body by the rope round the neck. It is to be observed, however, that there is no evidence on the record to suggest that the body was found at the place which was pointed out by the second accused-indeed there was no evidence at all as to where the body was found or by whom. Moreover, the body was identified by both the second and fourth prosecution witnesses without reference to the rope round the neck. In view of the definition of "confession" contained in sub-section (2) of s. 17 of the Evidence Enactment there can be no doubt in our view that all the statements of accused No. 2 above referred to come under the ban imposed by s. 26 of the same Enactment, and are excluded by s.113 of the Criminal Procedure Code unless they can be brought within the scope of s. 27 of the Evidence Enactment. But in our view nothing was deposed to as having been discovered as a - result of what the second accused said so that s.27 has no application to the matter before us. We think it desirable to emphasise that the first step which must be taken before s. 27 can be invoked at all must be proof of some fact discovered as a result of the information given by the accused. It is clear, therefore, that in this case evidence has been admitted which should not have been admitted. Moreover, this inadmissible evidence was specifically referred to in the summing-up of the learned Judge as evidence of importance. We find it impossible to suppose that the Assessors may not have been influenced in their decision in respect of all the accused by these wrongly admitted S/N hn59L5pAUWk4sb1fw92gA statements, and we are therefore of opinion that the convictions cannot stand. All the convictions are accordingly quashed and the appeal of each of the appellants is allowed. [78] In view thereof, it is obvious to us that the learned Sessions Court Judge had erred when she relied on inadmissible evidence to infer that the appellant was the assailant who entered the victim's room and assaulted her. Conclusion [79] Hence, we cannot agree with the learned Sessions Court Judge that the defence is a bare denial and neither can we agree that the defence story is not probable. The existence of the DNA belonged to an unknown male found in the victim's fingernail, on the victim's bra and the window grill room which excluded the appellant as the owner of the said DNA could not be said to be a bare denial. [80] We found there are merits in the appeal by the appellant. Given the errors committed by the learned Session Court Judge and the infirmities in the prosecution’s case, we find the conviction of the appellant to be unsafe. In a criminal case, our duty is to consider whether the conviction of the appellant is right. It is not whether the decision of the learned Session Court Judge is wrong but whether the conviction is safe. (Mohd Johi Said & Anor v. PP [2005] 1 CLJ 389). S/N hn59L5pAUWk4sb1fw92gA [81] For the aforesaid reasons, we unanimously allow the appeals and set aside the conviction and sentence imposed by the courts below. Date: 5 Mac 2025 - sgd - Azmi bin Ariffin Judge Court of Appeal Malaysia Counsel For the Appellant :

Hamid Ismail

Shahlan Bin Zufri [Hamid & Co] For the Respondents : Mohamad Arif Aizuddin Masrom [Deputy Public Prosecutor] S/N hn59L5pAUWk4sb1fw92gA