CHUA LI PIN v Pendakwa Raya (JB-42S-4-08/2023)

1.

SONG CHUN RU ... RESPONDEN-RESPONDEN GROUNDS OF JUDGEMENT

There are three (3) appeals before me.

The two (2) accused in these appeals were charged under Section 304(a) of the Penal Code (PC) read together with Section 34 PC.

The charge under s. 304 (a) PC against both accused reads: - “Bahawa kamu bersama-sama seorang suspek yang masih bebas, pada 01/12/2019 hingga 02/12/2019, di antara jam lebih kurang 04.00 petang hingga 10.00 malam, bertempat di hadapan Kebun Babike, Jalan Johor, Kampung Setia Jaya, 86200 Ayer Hitam dalam daerah Batu Pahat, di dalam negeri Johor, telah melakkukan perbuatan yang menyebabkan kematian Lee Meng Hun KP: 790725-01-5437 dengan niat hendak menyebabkan kematian dan dengan itu kamu telah melakukan kesalahan mematikan orang dengan salah yang tidak terjumlah kepada kesalahan membunuh, dan boleh dihukum di bawah seksyen kepada 304(a) Kanun Keseksaan di baca bersama seksyen 34 Kanun yang sama.”

Both accused were convicted by the Learned Sessions Judge (LSJ) on the amended charge under s. 304(b) PC and sentenced to five (5) years imprisonment from the date of conviction.

Both accused have appealed against the conviction and sentence.

Meanwhile, the prosecution has appealed against the LSJ’s decision to amend the original charge under s. 304(a) to s. 304(b) and also the sentence.

The background facts narrated by the LSJ in his ground of judgement are as follows.

On 3.12.2019 at around 9.15 pm, the victim, Lee Meng Hun, was found lying unconscious on the road near Taman Cerah, Ayer Hitam by members of the public who alerted the police.

By the time, the Investigating Officer (PW8) rushed to the scene, the victim was already brought to Hospital Sultanah Nora Ismail (HSNI) Batu Pahat and treated at the ICU.

The medical officer found the victim to have suffered abrasions on his right hand, fractured middle finger bone of his right hand, bleeding in his brain that had caused swelling of the brain and a fracture of his skull. By this time, PW8 had identified the victim as Lee Meng Hun.

The victim went through surgeries at Hospital Sultanah Aminah (HSA) but yet was still in a coma. Subsequently, the victim was transferred to HSNI for continued treatment but he died on 29.1.2020 due to pneumonia infection from the ward.

Post mortem on the victim conducted by the Forensic Pathologist (PW7) found there was a healed abrasion on the victim’s head, both his elbows and both his knees. PW7 also found a fracture at the right back of the skull, possibly inflicted with a blunt rough surface such as wood, rough steel or a similar pattern.

PW7 also found healed burn injury seen on the right arm, left wrist and right foot.

According to PW7, these injuries must have been more than 2 weeks old at the time of the victim’s death. The victim’s lungs revealed that he had contracted pneumonia from the ward which led to breathing failure and sepsis.

PW7 concluded that the death was brought upon by blunt trauma to the head complicated with pneumonia.

Both the accused, together with the victim’s girlfriend, Le Thi Tu (PW1), were arrested in connection with the victim’s death. However, only the two (2) accused were charged.

The incident leading to the victim being found lying unconscious on the road took place over three days.

Evidence adduced by the prosecution through PW1 reveals that both accused had gone to the victim’s house to collect repayment of a debt of RM 650.00 on 1.12.2019. However, the victim told them that he has no money and can only repay them upon selling his motorbike. Both accused then ransacked the victim’s bedroom to look for money but failed to find any. Thereafter, they asked the victim and PW1 to follow them to discuss the debt.

They brought the victim and PW1 to Babike Oil Palm Plantation in a white Myvi motorcar. Upon reaching the destination, both accused took a wooden stick and a metal rod from a grey Vitara jeep motorcar and started to hit the victim on his head and legs but PW1 shielded the victim. The beatings fell on PW1’s hand.

The victim and PW1 was told by both accused that they cannot go back until the debt is settled.

Subsequently, the first accused took PW1 back to the victim’s house to take the victim’s clothes and later to a man named Oman’s house. At Oman’s house, PW1 saw the 1st accused hitting the victim with a wooden stick and the 2nd accused hitting the victim with a metal rod. PW1 also saw another person called Botak kicking and hitting the victim.

The following day (2.12.2019), the victim telephoned his sister to borrow some money to settle the debt. However, his sister did not wish to assist him. Thereafter, PW1 asked her younger sibling to assist by depositing some money into a bank account.

However, when both accused and Botak brought PW1 and the victim to the nearest Bank to check if the monies were deposited, they found no monies had been deposited. Both accused got angry and during their journey back, Botak burned the victim’s right hand using a sprayer and lighter until the victim shouted in pain.

On the evening of the same day, the victim was beaten again on his head using a wooden stick and a metal rod by both accused, causing the victim’s head to bleed. Whereas Botak kicked the victim’s leg and body. After that, both the accused and Botak took drugs and slept at the oil palm plantation.

On the next day (3.12.2019), the 1st accused informed PW1 that he wanted to take PW1 to his house. PW1 was afraid that anything might befall her and just followed. The 1st accused then told the 2nd accused to send the victim back to his house since the victim is still unable to settle the debt after 2 days.

The last time PW1 saw the victim was at around 2 pm on 3.12.2019 before she followed the 1st accused. At that juncture, the victim was still conscious but weak with his head and both legs bleeding and his right hand burned. PW1 stayed at the 1st accused’s house until she was arrested by the police.

In Herchun Singh & Ors v. PP [1969] 1 LNS 52, concerning the credibility of witnesses, when hearing criminal appeals, it was held by the Federal Court as follows: - “…This view of the trial Judge as to the credibility of the witness must be given proper weight and consideration. An appellate Court should be slow in disturbing such finding of fact arrived at by the Judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding...”

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Lastly, in Mohd Johi bin Said & Anor v. PP [2005] 1 CLJ 389, concerning the approach to be adopted in criminal appeals, the Court of Appeal held as follows: - “…Unlike civil appeals, where the appellant carries the burden of showing that the judge at first instance went wrong, in a criminal case the duty of the court is to consider whether the conviction is right. The correct approach is therefore not whether the decision is wrong but whether the conviction is safe. See, Mohammad Husain v. Emperor AIR [1945] Nag 441; Zahari bin Yeop Baai v. PP [1977] 1 LNS 162; [1980] 1 MLJ 160. That question, on the present facts, must receive a negative response... [emphasis added]”

Based on the above established principles, I will now analyse the grounds of appeal raised by both accused.

Learned counsel for both accused raised the following similar common grounds to attack the LSJ’s finding and decision: -

The prosecution has failed to establish a prima facie case;

(ii) There is doubt as to how the victim suffered the injury;

(iii) Failure to consider the defence;

(iv) The sentence is manifestly excessive.

In addition to the above, learned counsel for the 2nd accused also contended that the investigations carried out by the Investigating Officer (PW8) were shoddy. The prosecution has failed to establish a prima facie case

Under this ground, learned counsel for both accused submitted that the LSJ erred in his ruling that the prosecution had established a prima facie case by relying on the evidence of the main witness, PW1 which was inconsistent.

According to learned counsel for both the accused, PW1 had changed her evidence in chief on what happened on 01.12.2019 in her witness statement.

In the beginning, PW1 said in her witness statement: - “Saya lihat OKT1 telah guna kayu untuk pukul kepala dan seluruh badan mangsa berkali-kali manakala OKT2 telah menggunakan besi untuk pukul kepala dan badan mangsa juga berkali-kali.”

Thereafter, she changed her evidence in chief by adding the following sentence: - “OKT1 dan OKT2 pukul mangsa tetapi saya memeluk mangsa dan pukulan tersebut kena tangan saya.”

Next, PW1 also in the beginning said in her witness statement: - “Saya telah lihat OKT 1 pukul mangsa dengan kayu di kepala dan kaki manakala OKT 2 pukul mangsa dengan besi sampai besi bengok.”

Thereafter, she changed her evidence in chief by deleting these words and substituting with the following evidence: - “OKT 1 bukan memukul mangsa begitu juga dengan OKT 2.”

Learned counsel for the 2nd accused further highlighted that PW1 also testified in her examination in chief that on 02.12.2019, the 1st accused hit the victim on his head using a wood, the 2nd accused hit the victim using a metal rod until the metal rod broke into two and Botak kicked the victim’s leg and body but this is inconsistent with her evidence during her cross-examination and re-examination because PW1 gave different timelines on the incidents involving the victim from 1.12.2019 till 3.12.2019 at the Babike Oil Palm Estate.

In other words, learned counsel for both accused submit that PW1’s version about seeing the 1st accused and the 2nd accused hitting the victim is inconsistent and therefore PW1, being the only eyewitness, was not able to testify how the victim sustained the injuries which caused his death.

On this issue, the LSJ’s findings in para 13 of his Grounds of Judgement upon analysing PW1’s evidence can be summarised as follows: -

That PW1 was together with the victim, 1st accused and the 2nd accused for three (3) days from 1.12.2019 until 3.12.2019.

(ii) PW1 only slept at the 1st accused house on 3.12.2019 and 4.12.2019.

(iii) If PW1 only slept at the 1st accused house beginning on 3.12.2019, therefore this is consistent with her evidence that on the night of 1.12.2019, she was together with the victim, the 1st accused, the 2nd accused and Botak at Oman’s house after she went to the victim’s house to get his clothing and she saw the 1st accused, the 2nd accused with Botak hitting the victim there.

(iv) On 2.12.2019, when returning from the town after failing to get the money from PW1’s younger sibling, the 1st accused, the 2nd accused and Botak hit the victim once more at the Babike Oil Palm Estate.

In addition, PW1 testified that she saw an incident where the 1st accused and the 2nd accused hit the victim during the evening, but she could not remember the date. This incident must have happened on 2.12.2019 because the incident where PW1 saw the 1st accused and 2nd accused hitting the victim at Oman’s house during the night happened on 1.12.2019.

(vi) On the evening of 1.12.2019, the 1st accused and the 2nd accused did not succeed in hitting the victim because the victim was shielded by PW1.

(vii) The above facts therefore confirm that on 3.12.2019, PW1 followed the 1st accused to his work place and later to the Senai International Airport to send off his friend and thereafter send food to the victim and this was the last time when PW1 saw the victim as opposed to on 2.12.2019 as stated by PW1 in her cross-examination.

The LSJ then referred to the High Court decision in Pie Bin Chin v PP [1985] 1 MLJ 234 concerning the inconsistencies, discrepancies or contradictions in the testimony of witnesses. In Pie Bin Chin (supra), Wan Yahya J (as he then was) stated as follows: - “Discrepancies are no doubt present in this case, as they do ostensibly appear in most cases in evidence of witnesses for the prosecution as well as the defence. The transcripts of most evidence, when thoroughly tooth-combed by any able lawyer, never failed to yield some form of inconsistencies, discrepancies or contradictions but these do not necessarily render the witness's entire evidence incredible. It is only when a witness's evidence on material and obvious matter sin the case is so irreconcilable, ambivalent or negational that his whole evidence is to be disregarded. Forgetfulness and failure to recall exactly certain events, which did not seem to be important to the witness, do not necessarily shake his credibility or render other parts of his story unworthy of belief. Various persons are endowed with varying powers of cognition, attentiveness and perception, so that it is not uncommon for two witnesses to a common event to describe it in slightly differing versions. Thus, the slight dissimilarity between the evidence of the complainant and his wife is explicable. It was further contended that the inconsistencies in the evidence of the complainant itself should make his story unreliable. It is true that he gave capricious accounts of certain facts but then those matters relate mostly to subsidiary issues. He was understandably vague on details on sequence of events relating to the payments but of the payments themselves and the amount paid on each occasion the witness's evidence was positive and categorical. I agree with the learned President's findings on this not only because he, having seen and heard the witness is in a better position than I am to evaluate the credibility of the witnesses, but also because I accept that no witness of truth can account for the details of events which had transpired some 17 months previously with precision.”

Based on the above findings on PW1’s evidence, the LSJ then found PW1 to be a credible witness and her evidence pertaining to the material facts concerning who injured the victim and where it happened to be consistent. The LSJ then accepted PW1’s evidence to be true, although PW1 at times looks confused about the timeline of the incident.

I have perused PW1’s evidence and with due respect to learned counsel for both accused, I note that their cross-examination of PW1 was not lengthy. Neither was there vigorous cross-examination of PW1 to challenge her credibility.

I find PW1 had testified positively in her evidence that she saw both the accused persons hitting the victim on the night of the first day at Oman’s house and during the evening on the second day at the Babike Oil Palm Estate.

In my judgment, the LSJ’s finding that PW1 is a credible witness and accepting her evidence to be true is based on admitted evidence.

If at all, there was only some confusion on the part of PW1 regarding the timeline of the incident. What is material is that PW1 had identified positively that she saw the 1st accused and the 2nd accused hitting the victim on two occasions. Firstly, on the night of 1.12.2019 at Oman’s house and secondly on the evening of 2.12.2019 at the Babike Oil Palm Plantation.

Furthermore, PW1 also had testified that she saw both the accused hitting the victim using a weapon. Her testimony is as follows: - “OKT 1 gunakan kayu pukul kepala mangsa dan OKT 2 pula pukul kepala mangsa guna besi sampai besi terlerai dua.”

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PW1 had clearly identified in her evidence that the 1st accused had hit the victim using a wooden stick and the 2nd accused had hit the victim using a metal rod. Although PW1 had testified that Botak had burned the victim’s hand using a gas stove lighter and kicked the victim on his leg and body, it was the accused persons who had hit the victim on his head using a wooden stick and a metal rod as a weapon.

In the foregoing, I find learned counsel for both accused’s contention that the LSJ had erred in relying on PW1’s evidence, which is inconsistent when ruling at the end of that the prosecution’s case that the prosecution has established a prima facie case is devoid of any merit.

In my judgement, another important point that must be considered in evaluating whether the prosecution has established a prima facie case is the principle of the last person having been seen together with the victim before he was discovered dead. PW1, the sole eye-witness to the incident, whose evidence was accepted by the LSJ to be a credible and truthful witness, testified that when she last saw the victim on the 3.12.2019, before she had to follow the 1st accused back to his house, both the accused persons were with the victim

In Salem Brayon v PP [2023] 1 CLJ 739, it was held by the Court of Appeal as follows: - “[53] Our attention was drawn to the Indian Supreme Court decision of Ashok v. State of Maharashtra [2015] 4 Supreme Court 393 where the Supreme Court of India held that: “The “last seen together” theory has been elucidated by this Court in Trimukh Marotiu Kirkan v. State of Maharashtra [2006] 10 SCC 106, in the following words: “Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer an explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Thus, the doctrine of last seen together shifts the burden of proof on the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him.” [54] Under the circumstances of this case where, in our view, the ‘last seen together’ theory applies, the burden shifted to the Appellant to proffer a strong and cogent explanation and rebut the presumption that his act or series of acts led to the Deceased’s death and the inference that he committed the acts. The absence of such an explanation would be detrimental to his defence. (See Nika Ram v. State of H.P. [1972] 2 SCC 80; Kanhaiya Lal v. State of Rajasthan [2014] 4 SCC 715).”

Furthermore, PW1’s evidence indicates that the victim was seen with both accused most of the time during the three days before he was found on the night of the 3rd day, lying unconscious on the road with injuries. Hence, it can be concluded that both the accused persons had the opportunity to inflict injuries on the deceased.

In PP v Muhammad Khairuanuar Baharuddin & another appeal [2025] 1 CLJ 517, the Federal Court said as follows: - “[35] In this regard, firstly, the respondent had the opportunity to inflict injuries on the deceased. The respondent was the last person seen with the deceased while the deceased was still alive………………………” Please also see the Court of Appeal’s decision in Nur Fatihah Saqira Mohd Tahir v PP [2022] 1 LNS 1939. There is doubt as to how the victim suffered the injury

PW7, the forensic pathologist, concluded that the victim’s cause of death was due to a blunt trauma to the head complicated with pneumonia.

Learned counsel for both accused submit that the LSJ erred when he failed to consider PW7’s evidence that injuries to the victim’s head could have been caused as a result of the victim falling and knocking onto the road or due to a road accident.

According to PW7, in his post-mortem report (P12), he found healed abrasions on the head, both elbows and both knees. PW7 testified that these were keeping with the injury being inflicted with a blunt, rough surface such as wood, rough steel or whichever similar pattern. PW7 also found burn injury marks on the right arm, left wrist and right foot. On the examination of the head, PW7 found a fracture of the skull at the right back of the skull.

During his evidence, PW7 opined that the fracture of the skull could have been caused by a wood with a blunt, hard, compact and rough surface compared with the two other metal rods produced in evidence.

The LSJ had analysed PW7’s evidence and arrived at the following findings: -

PW1’s evidence that the victim’s right hand was burned using the spray and lighter is consistent with PW7’s evidence of burn injury marks on the right arm of the victim.

(ii) Although PW7 had agreed to the possibility that the injuries to the victim's head could have been caused by the victim knocking his head on the road, what is important is that PW1, as the eyewitness, saw the victim sustaining or suffering injuries to his head and body.

I agree with the LSJ’s finding. In my judgment, PW7’s finding that the fracture to the skull was caused by a blunt object such as the wood that was tendered as P13A is consistent and corroborated by PW1’s evidence that she saw the victim being hit on his head with a wooden stick.

On the other hand, I find that both accused failed to present any rebuttal evidence throughout the case to demonstrate that the fracture of the victim’s skull was caused by his head being knocked on the road when falling from a moving vehicle. This assertion, put to PW7 and PW8 during their cross-examination remains a mere suggestion.

Lastly, concerning the failure by PW1 to identify the weapons used to hit the victim, in my judgement, this does not weaken the prosecution’s case. This is because PW1’s direct evidence of seeing the 1st accused hitting the victim using a wooden stick and the 2nd accused hitting the victim using a metal rod is corroborated by PW7’s evidence that the injury inflicted on the victim was caused by a blunt, rough surface such as wood, rough steel or whichever similar pattern.

In the circumstances, I find no merit in the 2nd ground raised by both the accused.

Learned counsel for the 2nd accused raised the point that the LSJ erred in failing to consider that the investigations carried out by the Investigating Officer (PW8) were shoddy based on the following reasons: -

Failing to investigate whether the victim who was found on the road with blood stains was involved in a road accident that caused injuries to his head.

(ii) The test carried out on the 3 weapons seized (P13A, P14A and P15) to determine whether there were any blood stains returned negative.

(iii) No search list was prepared for the seizure of these 3 weapons.

(iv) The accused's or the victim’s DNA was not found on the weapons.

Failure to investigate who is Botak and Oman as mentioned by PW1 that they also had hit the victim.

(vi) Failure to establish the ownership of the Myvi motorcar registration number WQW 5378 and the motor jeep registration number WEU 1717.

Therefore, according to learned counsel for the 2nd accused, this warrants an adverse inference to be drawn against the prosecution based on section 114 (g) Evidence Act,1950.

Firstly, regarding the failure of the Investigating Officer (PW8) to determine whether it was a road accident, I find no merit in this issue. Police investigations led to the detention of both the accused persons and PW1. Thereafter, both the accused led the police to the discovery of the weapons used to hit the victim from the motorcar. These weapons were then seized by the police. The post-mortem report reveals that the fracture of the victim’s skull at the right back was caused by a blunt object, and PW1 is the eyewitness who saw both the accused persons hitting the victim. Therefore, in my view, there is no necessity to investigate whether it was a road accident.

Secondly, the forensic test on the weapons and DNA evidence is merely corroborative evidence. In Mahendran Arivalan v. PP [2020] CLJU 1278; [2020] 1 LNS 1278; [2020] MLRAU 279, Nordin Hassan JCA (as His Lordship then was) explained: - “...it is trite that forensic evidence including DNA or fingerprints only serves as corroborative evidence. It certainly assist(s) the prosecution to establish its case beyond reasonable doubt as required under the law. However, the absence of forensic evidence does not mean that the prosecution case must collapse if there are other cogent evidence to establish its case in particular direct evidence such as in the present case.”

Therefore, the absence of forensic tests on the weapons and DNA evidence does not weaken the prosecution’s case if there is direct evidence, such as from PW1 who is an eyewitness in the present case.

Thirdly, on there being no search list for the weapons seized, PW8 had already explained that he did not prepare any search list because he did not bring the search list along at the time of the seizure. According to PW8, these weapons were seized after the interrogation of both accused who told him that it was inside the motorcar.

Section 64 of the Criminal Procedure Code governs the requirement for a search list in the course of a search by a police officer. In San Soo Ha v PP [1967] CLJU 153, His Lordship Raja Azlan Shah (as he then was) held as follows: - “The third ground of appeal is that the provisions of s. 64 of the Criminal Procedure Code had not been complied with. In my view, the provisions of the section are to be strictly followed to the extent it is possible to ensure that the incriminating articles obtained as a result of the search were recovered as alleged and leaves no room for doubt and to exclude the possibility of any concoction or malpractice of any kind. This section bears he some resemblance to s. 103 of the Indian Criminal Procedure Code which is more exhaustive than ours. Conviction or acquittal of an accused person invariably depends upon the credibility of witnesses as assessed by the trial Court and never on the question whether a particular legal procedure has been complied with. The most that can be said about the failure to comply with the provision relating to search list is that it may cast doubt upon the bona fides of the parties conducting the search and accordingly afford ground for scrutiny; but if after close scrutiny the Court arrives at the conclusion that the stolen articles were recovered from the possession of the accused person, it is obviously no defence to say that the evidence was obtained in an irregular manner. There is nothing in the law which makes such evidence inadmissible. (See Bashir v. Emperor AIR [1932] All 185. Bhattacharjee v. Emperor AIR [1940] Cal 85). In the present case the learned president had explored the evidence and came to the conclusion that the stolen articles were recovered from the possession of the appellant. I am therefore unable to see how the failure to prepare a search list by itself would entitle the appellant to an acquittal.”

In the present case, according to PW8, these weapons were seized after the interrogation of both accused who told him that it was inside the motorcar. Given that these weapons were recovered from the accused motorcar after being led by the accused, the failure to prepare a search list by itself cannot entitle both accused to an acquittal.

Fourthly, on to the failure to establish ownership of the two vehicles, in my judgement, the ownership of these vehicles is not a subject matter related directly to the charge. In any event, PW8 testified that the Suzuki Vitara motor jeep belongs to the 2nd accused’s father, whereas the Myvi motorcar belongs to the 1st accused.

Fifthly, as for failure to investigate who is Botak and Oman, PW8 testified that they did not hit the victim and he was unable to locate Botak. PW8’s testimony is also corroborated by PW1’s testimony when cross-examined by learned counsel for the 2nd accused that she wishes to retract her evidence in chief that Botak did not kick the victim’s body and leg, but it was both accused persons who hit the victim.

In my judgment, the above facts highlighted by learned counsel for the 2nd accused do not weaken the prosecution’s case in light of the direct evidence from PW1 as an eyewitness who testified positively that she saw both accused persons hitting the victim twice and they had used a wooden stick and a metal rod. Furthermore, PW1’s evidence is corroborated by the findings of PW7 in his post-mortem report that the fracture to the victim’s skull was caused by a blunt object such as a block of wood.

In the foregoing, I find no merit in this ground of appeal. Failure to consider the Defence

The final ground both accused raised to set aside the conviction is that the LSJ failed to consider their defences.

In addition to both accused testifying on their defence, they called their respective fathers as their witnesses.

The 1st accused testified as to what happened from the time taking the victim and PW1 from the victim’s house on 1.12.2019 to Babike Oil Palm Plantation and Oman’s house until 2.12.2019. He denied hitting the victim and said that it was Botak and Kechik who hit the victim at Oman’s house and he stopped them from hitting the victim. Thereafter, he didn’t know what happened to the victim until he was arrested on 5.12.2019.

The 2nd accused testified as to what happened from the time taking the victim and PW1 from the victim’s house on 1.12.2019 to Babike Oil Palm Plantation and Oman’s house until 2.12.2019. He also denied hitting the victim and said that it was Botak and Kechik who hit the victim at Oman’s house and he stopped them from hitting the victim. The 2nd accused also testified that on 3.12.2019, when he was driving his motorcar to send the victim back to his house, the victim fell out of the car onto the road.

The crux of both accused’s defence is that they had confronted the victim to collect a debt for the sum of RM 650.00 due to Botak and for this purpose, they brought the victim and PW1 to the Babike Oil Palm Estate. They further testified on what transpired and what happened to the victim at the estate and Oman’s house. Both accused denied hitting the victim and testified that it was Botak and Kechik who had hit the victim.

I find that the LSJ from paragraphs 21 to 30 of his Grounds of Judgement had considered in detail the defence put forward by both accused.

Upon considering the defence, the LSJ found that the defence version put forward during the prosecution’s case differs from what was put forward during the defence stage.

According to the LSJ, during the prosecution’s case, the learned counsel for both accused put forward that it was Botak together with Oman who had hit the victim and their roles were merely to bring the victim to Botak and Oman only. However, during the defence stage, neither of the accused testified that Oman had hit the victim, but it was Botak together with Kechik who hit the victim.

A perusal of the evidence shows that it was only learned counsel for the 2nd accused who had put to PW1 that Botak and Oman hit the victim and not learned counsel for the 1st accused.

Further, it was never put during the prosecution’s case that the 1st accused stopped Botak and Kechik from hitting the victim and the 2nd accused stopped Botak from hitting the victim at Oman’s house and only mentioned for the first time by both accused during the defence stage.

The LSJ did not believe the 2nd accused’s version that the victim fell onto the road from a moving vehicle.

This is because LSJ also had considered PW7’s evidence that the injuries to the victim were not consistent with the injuries that one would sustain falling from a moving vehicle. According to PW7, if a person fell from a vehicle, he would have rolled on the road and would have sustained abrasions all over his body including the back. However, PW7 did not find any abrasions on the victim’s back except on the elbow. Whereas PW5, the medical officer from HSNI, found abrasions on the right hand only.

In addition, the LSJ also observed that, logically, for the skull at the right back to be fractured, the victim must have fallen onto his back from the moving car driven by the second accused. However, according to the second accused's testimony, when he made a U-turn and approached the victim, he saw the victim lying face down on the road, as seen in the photographs P16A and P16B tendered by the prosecution. Therefore, according to the LSJ, if the second accused's version is true, the victim must have rolled onto the road after falling onto his back or sideways into a face-down position. However, there were no abrasions on the back of his body, right shoulder, or knees, which were exposed since he was wearing shorts, due to rubbing against the road.

Hence, the LSJ found both accused persons’ versions of what really happened not convincing and did not believe them.

In addition to this finding, the LSJ also found DW3, the first accused father, was not able to recall specifically the date when the first accused brought PW1 back to stay at his house. According to the LSJ, in all likelihood, it must have been from 3.12.2019 to 5.12.2019 as testified by PW1.

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Last but not least, the LSJ being trier of fact, had the audiovisual advantage of listening to the testimonies and observing the demeanour of both accused persons and their fathers, DW3 and DW4. It is trite law that an appellate Court will not intervene in the findings made by the trier of fact unless there are compelling reasons for disagreeing with the finding.

In the foregoing, I find the LSJ had duly considered both the accused’s defence and therefore there is no merit in this ground of appeal.

In addition to the LSJ’s above findings, I also find the 2nd accused’s evidence that whilst driving his motorcar, he heard the sound of the back door closing not convincing. In my opinion, if a person is going to jump out of a moving vehicle, it is hard to imagine that he has the time to close the motorcar door.

Lastly, in passing I wish to comment that both the accused disagrees to almost all the questions put to them by the learned Deputy Public Prosecutor throughout their cross-examination.

Lastly, learned counsel for both accused persons submitted that the sentence of 5 years imprisonment imposed is manifestly excessive.

However, I find no grounds pleaded by both accused persons in their Petition of Appeal as to why the 5 years imprisonment is excessive. Neither are there any submissions made by both accused persons on this issue.

On the other hand, the prosecution appealed against the sentence being manifestly inadequate by citing some authorities.

Be that as it may, the LSJ had duly considered the mitigating factors and the fact that both accused persons are first offenders and decided that, in the circumstances, a 5 years term of imprisonment is appropriate.

Bearing in mind, the maximum term of imprisonment under section 304 (b) Penal Code is 10 years, and the facts in the present case, I do not find the sentence imposed by the LSJ to be manifestly excessive or manifestly inadequate. Whether the LSJ erred in finding both the accused guilty of the charge under section 304 (b) Penal Code instead of under section 304 (a) Penal Code

The prosecution had appealed against the decision of the LSJ in finding both accused guilty of the lesser charge under section 304 (b), instead of under section 304 (a).

The prosecution submits that the LSJ erred in doing so after having found a prima facie case proven by the prosecution under section 304 (a) Penal Code and calling for the defence.

According to the LSJ, the evidence adduced by both accused persons shows that they had no intention to cause death to the victim although they knew that if they repeatedly beat the victim using the wooden stick and metal rod, it could cause death to the victim. This, the LSJ found, is evident from both accused’s persons’ admission that they went to see the victim to collect debt from him and the evidence shows that they only hit the victim when he failed to settle the debt.

In Mohd Aminuddin Mohd Yasin and another v Public Prosecutor [2018] 1 LNS 1620, concerning the reduction of the charge from section 302 Penal Code to section 304 (b) Penal Code, the Court of Appeal said as follows: - “Reduction of the charge [67] The learned Judge did consider whether he could convict both Appellants on a lesser charge under s. 304(a) or (b) of the Penal Code. It appears to us that he was constrained by the fact that the Court of Appeal had ordered that both Appellants be called to enter their defence on the charge under s. 302 of the Penal Code (see paragraph 43 of the Judgment). He therefore found no grounds to amend and reduce the charge. [68] Notwithstanding what the learned Judge had decided, based on a maximum evaluation of the evidence, we are of the considered opinion that the charge ought to have been amended and reduced to one under s. 304(a) or (b) of the Penal Code. We do not think that the charge under s. of the Penal Code can stand since we are convinced that whilst the Appellants had the intention of causing bodily injury to the deceased, they did not have the intention to cause death to the deceased. It would therefore be more appropriate to reduce the charge from murder to culpable homicide not amounting to murder. [69] …………………. [70] From the evidence adduced as a whole, we are of the view that the charge can be reduced to either one of the following two offences:

under the 2nd limb of s. 304(a), i.e. where “the act by which the death is caused is done with the intention” “of causing such bodily injury as is likely to cause death”, in which case the punishment would be imprisonment which may extend to thirty years, and to fine; or

under s. 304(b), i.e. where “the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death”, in which case the punishment would be imprisonment which may extend to ten years, or fine or both. [71] Going by the totality of the evidence adduced, we find that there is sufficient evidence to prove that both Appellants did commit the act of hitting or assaulting the deceased with the knowledge that it is likely to cause death, or to cause such bodily injury as is likely to cause death. However, it is clear that there was no intention to cause death. It is obvious that the Appellants hit the deceased to discipline him for complaining of being in pain. The acts committed by the Appellants would constitute and tantamount to an offence which falls under s. 304(b) of the Penal Code, and not one under s. 302 of the Penal Code.”

Therefore, in my judgment, based on the totality of the evidence which shows both accused had no intention to cause death to the victim but only wanted to collect the debt from him and only hit the victim when he was unable to pay the debt, the LSJ did not err to find them guilty on the lesser charge under section 304 (b) Penal Code despite having called them to enter their defence under limb (a) of the said section.

In the foregoing, I find no merit in the prosecution’s appeal.

In the foregoing, it’s my finding that the conviction of both accused persons is safe and the 5 years imprisonment sentence is neither manifestly excessive nor manifestly inadequate.

I therefore dismissed both the accused and the prosecution’s appeal.

The conviction and sentence of the LSJ are upheld. t.t. Dated 3th July 2025 SURIA KUMAR DJ PAUL JUDGE HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Appellant/Respondent : Helmi Bin Hassan Tetuan Sukhdev & Associates Advocates & Solicitors No.116A, Tingkat 1 Jalan Sultanah 83000 Batu Pahat, Johor [Ref.No.: SA/CRI/0002/2020(Appeal).fati n] For the Appellant/Respondent : Sukhdev Singh A/L Bishen Singh Tetuan Naufal, Fahmi & Associates Advocates & Solicitors Suite 3B, Jalan Flora 1/9 Taman Pulai Flora, 81300 Skudai, Johor [Ref. No.:JNFS/HH/45/2024] For the Appellant/Respondent : Nur Sulehan binti Abd Rahman Timbalan Pendakwa Raya Pejabat Timbalan Pendakwa Raya Mezzanine Floor Muar Trade Centre No. 16, Jalan Petri 84000 Muar Johor [Ref. No.: ]