(a) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such a statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. [21] In Toh Lai Heng v Regina [1961] 27 MLJ 53, the Singapore Court of Appeal laid down the principles of law on the admissibility of dying declaration as follows : “A dying declaration need not be proved by writing at all; there are many cases where eye-witnesses at the scene of an attack, or persons arriving shortly thereafter, may hear the last words spoken by a dying man and their recollection of those words will properly be received in evidence. In practice of course, such a witness would be required to give the exact words spoken by the deceased and, in so far as they are relevant,any words spoken to the deceased by the witness himself. If, however, the dying declaration is reduced to writing – and this would invariably be the case in the event of the witness in question being particularly an investigating Police Officer, Magistrate, or someone of that kind, the actual words of the deceased must be recorded.” [22] In the present case, the appellant’s complaint is that the dying declaration was improperly admitted by the learned trial judge without any caution and without any observation of the established law as to its admissibility. Firstly, it was submitted that the trial judge has failed to remind himself that such evidence was not made under 14 oath, nor had it been tested by cross-examination. And that such evidence was prejudicial to the appellant. Learned counsel also submitted that these omissions by the trial judge has caused a miscarriage of justice to the appellant (Mohamed bin Allapitchay & Ors v Reg [1958] 1 ML J 197; Murugan a/l Krishnan lwn Pendakwa Raya dan satu lagi rayuan [2018] ML JU 15 ). Secondly, it was submitted that the statement is not in the exact words spoken by the deceased. It was further submitted that Malay language was not the mother tongue of the deceased and SP10. This fact is supported by SP10’s own evidence when cross-examined by counsel for the appellant as appears at page 62 Appeal Record Jilid 2A as follows : Q : Selepas cecair tuang pada muka awak, awak tutup muka. Selepas awak dan suami pergi ke tandas belakang, masa itu penyerang itu sudah beredar? A : Ya. Selepas mereka lari, saya tak panggil sesiapa. Sebelum kejadian ini, anak bongsu saya tanya ada sesiapa datang ke rumah masa saya cakap OKT sudah naik ke pagar dan sudah panjat ke dalam rumah. Masa anak bongsu saya tanya sesiapa ada datang ke rumah di dalam Bahasa Tamil saya jawab dalam Bahasa Tamil juga. [23] In view of the above evidence, it was submitted that the deceased could not possibly have uttered “Munish yang buat terbakar ini.” Further, it was submitted that if such dying declaration was indeed uttered by the deceased, it must have been uttered in Tamil. Therefore, it was submitted that the words “Munish yang buat terbakar ini” was not the actual words uttered by the deceased and 15 ought not to be admitted under section 32 (1) (a) of the Evidence Act 1950. Thirdly, it was submitted that the trial judge did not apply his mind to the vital issue in this case, which is: did the deceased speak the truth (Chan Phuat Khoon v Public Prosecutor [1962] 1 M LJ 127). Instead of following the principles of law mentioned in the above cited cases, the learned trial judge simply states in one sentence “Setelah meneliti ‘dying declaration’ yang diucapkan oleh simati, saya memutuskan bahawa ‘dying declaration’ tersebut boleh diterima masuk sebagai keterangan di bawah seksyen 32 (1) (a) Akta Keterangan 1950.” Fourthly, in her testimony, SP10 claimed that all her three (3) sons also heard the dying declaration. However, none of them were called to give evidence. In the circumstances, the appellant submitted that adverse inference under section 114 (g) of the Evidence Act 1950 should have been invoked by the learned trial judge at the end of the prosecution’s case, which was not done in this case. It was submitted that the trial judge’s failure to do so amounted to a miscarriage of justice against the appellant. We agree with learned counsel’s submission. It goes without saying that the learned trial judge had taken a simplistic approach in admitting the dying declaration without due regard to the law as well as its prejudicial effect to the appellant outweigh its probative value. In the circumstances, we agree with learned counsel that the dying declaration was wrongly admitted in evidence. The question that we need to ask is : with the exclusion of the dying declaration, can the conviction against the appellant stand? The learned trial judge had this to say at page 18 Appeal Record Jilid 1 and we agree: “Malah tidak keterlaluan jika dikatakan bahawa tanpa keterangan ‘dying declaration’ tersebut sekalipun, keterangan SP10 sudah cukup kuat untuk mampu berdiri sendiri.” 16 Our decision [24] Having perused the notes of proceedings, the grounds of judgment of the learned trial judge and the written submissions of parties, we find the conviction is safe. The background facts revealed prior to this incident, there was a misunderstanding between the appellant and SP10’s sons. It became serious when the house of the appellant’s father was attacked on the same day at around 7.40 pm. In retaliation, the appellant attacked SP10’s house. We therefore dismiss both appeals and affirmed the conviction and sentence. Dated 1st September 2020. sgd Hadhariah binti Syed Ismail Judge Court of Appeal For the Appellant : Dato’ Geethan Ram Vincent (En Aliff bin Bolkin with him); Messrs Geethan Ram For the Respondent: Dhiya Syazwani Izyan, Deputy Public Prosecutor; Attorney General Chambers.