The act by the Appellant came within the ambit of one or a combination of the limbs under section 300 PC. [7] The prosecution called 16 witnesses to prove the charge. There were no eye-witnesses and the prosecution’s case was essentially based on the S/N kvdyueg460i6WlHFLKvVMg evidence of PW4 and PW6 and the discovery information under section 27 of the Evidence Act 1950. [8] PW12 and PW13 testified that they made police reports about the eight discovery statements made to them by the Appellant which led to the recovery of the exhibits in this case. In this regard, PW13 testified that the Appellant had led the police to two different spots where the T-shirt and the body of Yugen were, respectively, recovered from. According to him, the information given by the Appellant was, “Inilah baju Yugen yang saya buang tempoh hari” and “saya buang mayat Yugen dalam Sg. Klau, Raub Pahang”. [9] PW12’s evidence was that on information given by the Appellant and the other accused persons, he recovered Yugen’s motorcycle and the weapons used to attack him, namely a palm frond (“pelepah kelapa sawit”) and a sugarcane stalk that had broken into two pieces. PW12 said that these items were recovered from different locations close to a Chinese cemetery. PW12 stated that the Appellant also gave information in relation to a car bearing registration number PJY 5957. The Appellant told him that, “Inilah kereta yang saya, Sarin, Magen and Shankar guna semasa buang mayat Yugen tempoh hari.” The car belonged to the Appellant’s mother. S/N kvdyueg460i6WlHFLKvVMg [10] Police found a blood stain in the car cushion but the forensic unit was unable to extract any DNA from it to link it to the deceased. Likewise, blood stains found on the shoe of the Appellant had yielded no DNA. [11] The body found recovered from Sg. Klau was identified to be that of Yugen by the investigating officer and his adoptive mother. [12] PW14 conducted an autopsy on the body. The injuries on the body included multiple lacerations and bruises and a 2.5 cm skull fracture. A diatom test was done on the rib bones as it was the only organ that remained in the body and it did not indicate the cause of death as drowning. In view of the state of advanced putrefaction of the body, PW14 was unable to ascertain the exact cause of Yugen’s death but stated it was undetermined and probably caused by blunt force to the head. He also opined that the palm frond and the sugarcane stalk could have caused the injuries on the body and that these injuries would have been sufficient in the ordinary course of nature to result in death. [13] At the close of the prosecution's case, the trial judge held that the prosecution had established a prima facie case against the Appellant and the other accused persons and that they were the ones who had inflicted the injuries on Yugen, and accordingly called upon them to make their defence. S/N kvdyueg460i6WlHFLKvVMg Defence case [14] The Appellant gave his evidence on oath. He denied any involvement in the murder of Yugen. According to him, on the evening of 8 September 2017 he had gone to Taman Emas to drink with his friends, the three accused. Whilst there, he saw Yugen fishing at a pond close to where they were. Yugen was with PW6 and one Surin. According to the Appellant, this was around 6.30 pm. The Appellant then left for home to take a shower and when he came back to join his friends, the deceased and his friends had already left the place. [15] The Appellant maintained that he and his friends went home around 10.30 pm, and never saw Yugen thereafter. He denied having made the discovery statements or having led the police to the discovery of the offending exhibits. He said that it was the police who had taken him to the jambatan in Sg. Klau and the other places. [16] The Appellant was cross examined by counsel for the third accused, who put to him that he had struck Yugen but panicked when the latter passed out. It was further put to him that he had asked the accused persons to help him throw the body into the river. It was further put to the Appellant that his intention in hitting Yugen was only to teach him a lesson and not to kill him. The Appellant denied all the suggestions put to him. The Appellant also S/N kvdyueg460i6WlHFLKvVMg denied a suggestion by the deputy public prosecutor that he had used the sugarcane stalk and the palm frond to attack Yugen and the sugarcane had snapped into two during the attack. [17] The learned trial judge then heard submissions at the close of the whole case and came to the conclusion that only the Appellant was guilty of the murder of the deceased and sentenced him according to law. The others on the other hand, were convicted and sentenced for an offence under section 201 Penal Code. The trial judge’s decision [18] The trial judge convicted the Appellant as he found his defence a bare denial and one of alibi. The trial judge held that the Appellant’s conduct in not giving any explanation as to his knowledge of the places where the body of Yugen and the other incriminating exhibits were found pointed to his involvement in the murder. The trial judge was satisfied that PW4 was a truthful witness and did not believe the Appellant’s evidence that he had not called her to tell her that he intended to kidnap Yugen. [19] The trial judge concluded that the Appellant’s denial of involvement in the murder of Yugen failed to raise any reasonable doubt in the prosecution case. S/N kvdyueg460i6WlHFLKvVMg Grounds of appeal [20] In challenging the decision of the trial judge, counsel for the Appellant in his written and oral submissions identified 7 grounds of appeal which can be grouped into four headings. They are as follows: a. The learned trial judge erred in coming to the conclusion that there was sufficient credible evidence to show that the body recovered from the river was that of Yugen; b. That the learned trial judge erred in permitting the discovery statements to be admitted in evidence; c. That the learned trial judge erred in accepting the testimony of PW4 as it was not corroborated; and d. That the Appellant was denied a fair trial because of the incompetence of his trial counsel. [21] We will now consider the complaints raised by learned counsel. S/N kvdyueg460i6WlHFLKvVMg Identification of body [22] The Appellant raised 3 complaints under the first heading. First, that there was no credible evidence that the body recovered was that of Yugen. It is contended that there was no basis for the trial judge to conclude that the body was that of Yugen as there was no DNA evidence to establish this fact. This issue requires a narrative. The body that was recovered from the river was badly decomposed and the face could not be seen or recognised. That being so, it was the investigating officer who had identified it as Yugen to the pathologist. Yugen’s mother was not shown his body. She was only shown photographs of the blue jeans and the T shirt recovered by the police. She identified the body as Yugen by the Uniglo blue jeans and the T-shirt that he wore on the day he was last seen. DNA was taken from Yugen’s biological parents for a comparison, but the DNA test did not yield any results because the body was in an advanced stage of decomposition [23] We are unable to accept the submission that the absence of DNA evidence is fatal. We share the judge’s view that the evidence of the mother and the circumstantial evidence was sufficient to prove that the body recovered from the river was that of Yugen. [24] The Appellant also took issue that the investigating officer had identified the body as Yugen when he was not in a position to do so as Yugen S/N kvdyueg460i6WlHFLKvVMg was not known to him. It is evident that the investigating officer came to the conclusion that the body was that of Yugen based on the identification by the mother and the fact there was no other person reported as missing in the district and the discovery information provided by the Appellant. We therefore find no merit in the complaint that the investigating officer ought not to have identified the body. [25] We turn now to the second complaint on cause of death. It will be recalled that the pathologist who performed the post mortem was unable to express a conclusive opinion on the cause of death because the body was very badly decomposed. The post mortem report stated that the cause of death was undetermined (decomposed body) or probable blunt force trauma to the head. [26] It is the Appellant’s contention that based on the post-mortem report Yugen might have died from drowning and not the injuries inflicted on him. We reject this argument. In our view, although it was not possible for the pathologist to pinpoint precisely the medical cause of Yugen’s death, it was open to the court to look beyond the autopsy findings, and on the totality of the evidence, to determine the cause of death. The diatcom test conducted by the pathologist established that in all probability Yugen was already dead and not merely unconscious at the time his body was thrown into the river. S/N kvdyueg460i6WlHFLKvVMg As such, we agree with the trial judge’s finding that Yugen did not die from drowning but from the injuries intentionally inflicted on him. [27] This is not a case where the Appellant simply fled from the scene without giving any aid to Yugen. The Appellant did not want Yugen ‘s body to be discovered by a third party, and threw him into the river without taking any further interest in him. On the facts, we find that the evidence supported the trial judge’s finding that death was caused by the injuries inflicted on Yugen and that he had died before his body was thrown into the river. [28] That bring us to the third complaint which is whether the palm frond and sugarcane stalk were the weapons used to inflict the injuries on Yugen as there was no DNA evidence to this effect. The Judge concluded that they were the weapons used to kill Yugen, notwithstanding the absence of DNA on the items. The palm frond and sugarcane stalk had been concealed under some bushes and were pointed out to the police by the Appellant. It is difficult to imagine why anyone would take the trouble to conceal the two items unless the same could expose them to some offence. The pathologist opined that the injuries to Yugen’s head could have been caused by the palm frond and sugarcane stalk. We therefore see no reason to disturb the trial judge’s finding on this issue. S/N kvdyueg460i6WlHFLKvVMg s.27 Evidence Act [29] The second ground of appeal relates to the discovery statements made by the Appellant under section 27 Evidence Act. It is beyond question that these statements form the basis upon which the whole case against the Appellant turns. If it is found that these discovery statements were wrongly admitted and relied upon, then the case for the prosecution would fall as there would be no cogent material upon which a conviction on murder could be properly founded. [30] Section 27 which deals with discovery statements provides as follows: “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.” [31] It is the Appellant’s contention that the trial judge erred in permitting the eight discovery statements to be admitted in evidence relying on section 27 of the Evidence Act. The argument here is two pronged. First, that the Appellant did not make the discovery statements attributed to him, nor did he take the police to the places from where the exhibits were recovered. S/N kvdyueg460i6WlHFLKvVMg Second, that the discovery statements were not admissible as no trial within trial was held to determine the voluntariness of the discovery statements. [32] With respect to the issue that the Appellant did not make the discovery statements, we find no merit. The Appellant’s allegation is refuted by the sworn testimony of PW 12 and PW 13 which is categorical and we see no reason to disbelieve them. We are satisfied that the Appellant had given the information and had led the police to the areas where the incriminating items connected to the murder were discovered subsequently. [33] As for the complaint that no trial within trial was held to determine the voluntariness of the discovery statements, we also find it to be without merit. In our view, this submission is contrary to the decision of the Federal Court in Siew Yoke Keong v. PP [2013] 4 CLJ 149. The Federal Court held: “In the light of the authorities referred to, we hold that information admissible under s.27 of the Evidence Act includes accused’s statement, or his act or conduct such as pointing out which leads distinctly to the discovery of a fact. For such information to be admissible in evidence, there is no duty on the prosecution to prove the voluntariness of the information. Hence it is not necessary to conduct a trial within a trial to determine the voluntariness of the information.” S/N kvdyueg460i6WlHFLKvVMg [34] It is clear from the foregoing case that to rely on discovery statements, the prosecution is only required to show that information was given by the accused and that the discovery was made in consequence of the information. So also, it must be shown that the information conveyed by the accused was not previously known to the police. There is no further requirement on the prosecution to prove the voluntariness of the information. [35] There is evidence in the present case that the police officers did not have the information before the statements of the Appellant was recorded. Therefore, the statements would amount to information under section 27 of the Evidence Act. We therefore find no reason to interfere with the trial judge’s decision to admit the eight statements. [36] The Privy Council in Pulukuri Kotayya v King Emperor 74 IA 65 considered the question of how much of the information which led to discovery of a fact can be admitted under section 27: “Information supplied by a person in custody that, “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A.’ these words are inadmissible S/N kvdyueg460i6WlHFLKvVMg since they do not relate to the discovery of the knife in the house of the informant”. [37] The Privy Council went on to explain that when admitted, the discovery statements can be used to prove such facts as are relevant to bring home the charge. These include, but are not confined to, knowledge on the part of an accused of certain relevant matters, the fact that the accused had possession of the article found or that the article in question was under his control. Information regarding the whereabouts of a dead body and the consequent discovery may, in the absence of cogent exculpatory explanation, lead to inference of concealment by the maker and his involvement in the crime. Credibility of PW4 [38] That brings us to the next ground of appeal which involves the credibility of PW4, the Appellant criticised the trial judge’s finding that PW4 was a witness of truth and in accepting her evidence that the Appellant had called her the night Yugen went missing to tell her that he intended to kidnap the deceased. Counsel’s complaint is that the trial judge had taken over the case after 8 witnesses, including PW4 had testified before the previous judge. That being so, he submitted the trial judge would not have been in a position to evaluate her credibility as he did not have the opportunity to S/N kvdyueg460i6WlHFLKvVMg observe PW4’s demeanour and did not caution himself of the danger of doing so. [39] Counsel also pointed out that nowhere in the grounds of judgment has the trial judge stated expressly that he had viewed the CRT recording of PW4 giving evidence in court before accepting her as a credible and truthful witness. [40] We find no substance in the submission as section 114(e) of the Evidence Act 1950 allows the court to presume that judicial and official acts have been regularly performed. In this case the trial judge performed a judicial function when he evaluated the credibility of PW4. Moreover, there is nothing in the judgment to indicate the trial judge accepted her as a credible witness based merely on demeanour alone. The fact is Yugen did go missing after the Appellant’s intimation to her that he was going to kidnap Yugen. This corroborates her version of the facts. She had no motive to falsely implicate the Appellant, especially since they were both close friends at the time. It is instructive in this regard to refer to the decision of the Federal Court in Tengku Mahmood V Public Prosecutor [1974] 1 MLJ 110 where it was held that “demeanour is not always the touch-stone of truth. It is only one ingredient in arriving at a finding of credibility. But so also is motive.’’ S/N kvdyueg460i6WlHFLKvVMg [41] In any event, it is trite law that an appellate court should be slow to overturn the trial judge’s findings of fact, especially where they hinge on the trial judge’s assessment of the credibility and veracity of witnesses, unless they can be shown to be plainly wrong or against the weight of the evidence. In accordance with settled principles, we decline to interfere with the learned judge's finding upon this issue. Incompetency of trial counsel [42] Lastly, it is contended that the Appellant’s conviction cannot stand as his trial counsel had conducted the trial with flagrant incompetence and that counsel’s conduct had deprived the Appellant of a fair trial which occasioned a miscarriage of justice. Counsel submitted that the trial counsel was flagrantly incompetent on two grounds, first, he failed to give notice of alibi under section 402A CPC which resulted in the trial judge giving little weight to the Appellant’s alibi evidence; and failed to object and ask for a voir dire when the impugned pieces of discovery statements were adduced in evidence. [43] On the subject of incompetence of counsel, the Federal Court in Shamin Reza Abdul Samad v PP [2011] 1 MLJ 471 and Yahya Hussein Mohsen Abdulrab V. PP [2021] 1 LNS 1246 after reviewing several cases from other jurisdictions on the subject accepted incompetence of counsel in S/N kvdyueg460i6WlHFLKvVMg the conduct of a defence in a criminal trial is a ground on which a conviction may be quashed provided that (i) such incompetence must be flagrant in the circumstances of the given case; and (ii) it must have deprived the accused of a fair trial thereby occasioning a miscarriage of justice. The two decisions illustrate that incompetence of counsel alone is not a sufficient basis to allow an appeal and that the focus of the appellate court is on the consequences of the alleged incompetence. It is a heavy burden which is not easily discharged. In Shamin Reza, this defence of flagrant incompetence on the part of trial counsel failed but was accepted in Yahya Hussein and the conviction was set aside. [44] The brief facts in Shamin Reza’s case were these. The accused was charged for murder. He sought an acquittal on the ground that his trial counsel conducted the case with flagrant incompetence because he failed to put to the witnesses for the prosecution that the deceased was killed by some person other than the Appellant. It was argued that because of this failure, the trial judge had declined to consider that line of defence altogether. [45] The Federal Court rejected this submission on the basis that there was clear evidence that no person other than the Appellant was in the room with the deceased at the material time and the room was locked from within. It was said that the possibility of a third person having entered the room was, on the facts, so far-fetched that a reasonable tribunal of fact would have S/N kvdyueg460i6WlHFLKvVMg rejected it as creating no reasonable doubt in its mind. Accordingly, the fact that the trial judge excluded that line of defence did not occasion a miscarriage of justice on the facts of this case. It was held that this was not an extreme case of incompetence on the part of counsel. [46] In Yahya Hussein Mohsen’s case, the facts were that the accused was charged with drug trafficking. Customs officers found drugs when they scanned and searched a bag that was in the Appellant’s possession shortly after he arrived at the Airport. His defence at the trial was that he had no knowledge about the drugs in the bag as it was handed to him in a packed state by his wife’s brother-in-law to deliver to a friend in Tawau. The Court identified four failures on the part of the trial counsel for concluding the Appellant had been deprived of a fair trial because of the flagrant incompetence of his trial counsel; “Firstly, the Appellant would only be addressing the court as to his defence during the defence’s case. During the defence’s case, the Appellant revealed for the first time the fact of Mickey and the entire transaction involving him. The JC found that the Appellant’s narrative was an afterthought invented to support his testimony during the defence’s case as this was never put in cross-examination during the prosecution’s case. … Secondly, and following from the first, the Appellant’s counsel refused generally to consider the Appellant’s narrative and instead chose to mount S/N kvdyueg460i6WlHFLKvVMg another defence for him, namely, the discrepancy in the weight of the drugs. The learned JC correctly found that the discrepancy in itself is not a sufficient ground to cast reasonable doubt on the prosecution’s case. The Appellant’s counsel avoided advancing the Appellant’s actual narrative which would have stood a better chance of exonerating him. Thirdly, in the Appellant’s evidence, he denied having knowledge of the dangerous drugs and to support that assertion, he further posited the defence that Mickey packed his bag for him. The JC disbelieved this for the questionable reason that the Appellant’s wife should have logically packed the bag for him. … DW2 made her way to the court in Tawau to testify but the Appellant’s counsel refused to put her on the stand. Fourthly, taking DW1’s additional evidence at face value the trial counsel barely met with the Appellant (only once in prison and once more briefly in court). The Appellant’s counsel made no submissions at the close of the prosecution’s case and unfortunately, had passed away such that he could not be present for the decision at the end of defence’s case.” [47] Having dealt with the applicable legal test, we now turn to address the two submissions of the Appellant on the incompetence of the trial counsel. The first is premised on his trial counsel’s omission to serve the alibi notice. The Appellant’s knowledge as to where the body of Yugen and the incriminating items could be found and the fact they had been concealed, were powerful circumstantial evidence that placed him at the crime scene. It S/N kvdyueg460i6WlHFLKvVMg is inconceivable that a person not implicated with the murder of the deceased would know where the body of the deceased had been disposed of and the murder weapons and exhibits were concealed. That being so, it is understandable perhaps why no alibi notice was given by the trial counsel. [48] We therefore fail to see how this has deprived the Appellant of a fair trial and of a real chance of an acquittal. The trial counsel’s conduct was capable of explanation. It was not unreasonable, or inexplicable. Interestingly, none of the other three accused persons had pleaded alibi as a defence though they had accepted that they were together with the Appellant at Taman Emas where Yugen was fishing with his friends. [49] The second submission is premised on the trial counsel’s failure to object and ask for a voir dire when the impugned pieces of discovery statements were adduced in evidence. It is apposite to point out that the notes of evidence indeed show there was challenge taken by the trial counsel when the prosecution sought to admit the eight discovery statements. Therefore, this allegation is entirely untrue. [50] Having found so, we now go on to consider whether the trial counsel ought to have asked for a voir dire. It is true that he did not. We fail to see why he ought to have sought one, when the law does not require for a trial within a trial to be conducted to determine the voluntariness of the S/N kvdyueg460i6WlHFLKvVMg information. We have already in an earlier part of this judgment dealt with this issue. [51] We therefore conclude that the Appellant has not made out this ground of appeal. Conclusion [52] After considering all the submissions advanced on behalf of the Appellant, it is our judgment that no reasonable doubt exists as to his guilt of the crime with which he was charged. The evidence of all the circumstances of the case, including the discovery statements of the Appellant leaves no doubt that the Appellant was responsible for the death of Yugen. The Appellant had knowledge of where the body was and the incriminating exhibits were found but gave no explanation. His failure to explain the very suspicious circumstances against him is certainly circumstantial evidence which may be taken into consideration against him. There was a cogent body of admissible evidence against him. For the foregoing reasons, we affirm the Judge’s decision on conviction. [53] As regards sentence, in light of the Abolition of Death Penalty Act (Act 846), it is now no longer incumbent on the Court to impose the death penalty to everyone convicted for murder. The death penalty is intended for the S/N kvdyueg460i6WlHFLKvVMg most horrific and most exceptional cases. We invited counsel for the Appellant to address us on sentence, but he declined to do so on the ground he had instructions not to. [54] Notwithstanding the above, given the facts of this case, we are of the view that it does not warrant the imposition of the death penalty. The Appellant was 23 years of age at the time of committing the murder, and further the prosecution did not produce any evidence to show that he was a hardcore criminal incapable of reform and rehabilitation. We therefore commuted the Appellant’s death sentence to a sentence of imprisonment of 30 years together with 12 strokes of the cane. Dated: 26 April 2024 -Sgd- (S M KOMATHY SUPPIAH) Judge Court of Appeal Malaysia Putrajaya S/N kvdyueg460i6WlHFLKvVMg Counsel/ Solicitors For the Appellant: Dev Kumaraendran Sagana Kaliyapan [Messrs Kumar & Co.] For the Respondent: Dhiya Syazwani Izyan binti Mohd Akhir Aida Khairuleen Deputy Public Prosecutor (Attorney General’s Chambers) S/N kvdyueg460i6WlHFLKvVMg