Fong Kim Ho v Pendakwa Raya (C-05(M)-569-12/2017)

The appellant was charged with, convicted and sentenced to death for the murder of one Thong Kong Wai by the High Court in Kuantan, Pahang. The charge reads as follows: “BAHAWA KAMU PADA 08.10.2014 JAM LEBIH KURANG 12.35 TENGAH MALAM, DI HADAPAN RESTORAN SABAI, JALAN HJ AHMAD, DI DAERAH KUANTAN, DI NEGERI PAHANG, TELAH MELAKUKAN PEMBUNUHAN DENGAN MENYEBABKAN KEMATIAN KE ATAS THONG KONG WAI, NO. KPT: 750612-08-

DENGAN ITU, KAMU TELAH MELAKUKAN SATU KESALAHAN YANG BOLEH DIHUKUM DI BAWAH SEKSYEN 302 KANUN KESEKSAAN.”

It was based on eye-witnesses’ account of the murder and the event which led to the commission of the crime. There was an alleged prior incident of the deceased assaulting the appellant’s father-in-law. Thus, on that fateful night, a meeting at Paragon Restaurant (“the Restaurant”) was arranged for the deceased 3 and the appellant’s father-in-law to meet to settle the grievance over the said incident. The deceased was accompanied by his employer, Ng Wei Seng (PW17) and Lee Yee Zhen (PW26) to that rendezvous whilst the appellant came with his own employer Ng Chong Aik (PW22) although they arrived separately. PW22 was the one who informed the appellant about that rendezvous after receiving a call from one Lorry Ti who gave him PW17’s handphone number to contact. However, at the Restaurant, instead of a settlement the appellant and the deceased engaged in an altercation which prompted both PW17 and PW22 to ask everyone to leave. As they were approaching PW17’s car, PW17 said he saw the appellant stabbed the deceased from behind. He saw the knife in the appellant’s hand and the deceased collapsing whilst clutching his bleeding chest. However, the deceased managed to get up and ran towards another restaurant, Restoran Sawadee, which was also in the same vicinity but was chased by the appellant and when the deceased fell again, the appellant stabbed him repeatedly again on the chest.

PW22 testified that as he was leaving, he heard the sound of something falling and when he turned back he saw the 4 deceased bleeding on his chest. He also witnessed the subsequent stabbings of the deceased by the appellant when the appellant gave chase to the deceased before the latter’s final collapse. PW26 called the police’s emergency line 999 and when PW25 (ASP Mohd Padhillah) arrived at the scene, the deceased was still lying motionless at the same spot where he had collapsed earlier after the repeated stabbings. The pathologist (PW18) confirmed the cause of death as multiple stab wounds to the chest. Other than the above mentioned persons, three other members of the public present at the scene also testified about the incident.

PW5 (Loo Kim Thong) the owner of the Restaurant heard the altercation, saw the appellant chasing the deceased and later saw the subsequent stabbings by the appellant before the appellant fled from the scene. He identified the appellant at both the identification parade and in court as the assailant. PW3 (Calvin Chee Kah Hoe) the owner of Restoran Sawadee, was outside his restaurant at that material time and also witnessed the appellant chasing the deceased. He saw the appellant punching the deceased repeatedly whilst the deceased was lying face up whilst PW2 (Lee Wee Hon) who was a patron of 5 Restoran Sawadee and an employee of a computer shop near the said restaurant also saw the chase and subsequent stabbings. He identified the appellant from the CCTV recording of the scene [ExhP31A(1)]. Likewise, PW17 identified the appellant as the aggressor in the said recording. The learned Judicial Commissioner also considered the evidence of PW3 who could identify the slippers left at the scene (ExP41B and P42B) as the ones used by the appellant that night which came off (“tercampak”) when the appellant was chasing the deceased. This was also captured in the CCTV recording of the incident. The slippers, said the learned Judicial Commissioner was corroborative evidence of the appellant’s presence at the scene and that he was the one who chased the deceased until his own slippers slipped off from his feet.

Based on the aforesaid evidence, the learned Judicial Commissioner found a prima facie case for murder had been made out against the appellant and he was called to give his defence to the charge because according to His Lordship, the elements of the charge for murder had been successfully proven by the prosecution through not just the direct evidence of the witnesses and CCTV recordings as alluded to above but the 6 circumstantial one, which is, that the accused fled the scene and was missing for almost 5 months before the police managed to arrest him. That place of arrest was at ‘sangkar ikan’ Pulau Ketam, Klang, Selangor, a remote place which was so far away from the scene of crime, that is Kuantan, Pahang. The learned Judicial Commissioner referred to this court’s decision in Mohd Bakri Belaho v Public Prosecutor [2008] 2 CLJ 240 which held as follows: “[4] The subsequent conduct of the appellant of absconding to the south, hundreds of miles away from the scene of the crime, unfortunately to be arrested at Kota Tinggi, Johor Bharu merely strengthened the prosecution’s case. By so absconding, it was obvious that the appellant had attempted to distance himself from the scene of the crime. Although the act would not suffice to convict him, it would be relevant since it was indicative of a guilty mind.” The Defence

The appellant denied committing the act as alleged although he admitted he was present at the Restaurant on account of 7 PW22’s request for him to drive PW22 there but which he didn’t because when he went to PW22’s house to pick him up, PW22 had already left on his own. When he arrived at the Restaurant, the deceased, PW22 and PW17 were already there and the discussion between PW22, the deceased (whom he has never met before) and PW17 was about “kontrak lori”. About 10 minutes after his arrival, PW22 gave him RM10 to make payment at the cashier which he did before leaving the Restaurant for home through its back door. Upon reaching home, the appellant said he saw a missed call from PW22 and when he called him back, PW22 told him that there was some problem and one Ah Kent will fetch him. PW22 said to him that he had to go to Kuala Lumpur and needed to stay there because one of them was alleged to be involved in a murder committed during the meeting. So he did stay for 2 to 3 days in a hostel near a port where Ah Kent worked. The appellant denied knowing Lorry Ti or committing the murder.

Four witnesses were called by the appellant, two of them are his family members, that is, his father (DW2) and brother (DW3) whose collective evidence merely confirmed that they had dinner together on the night in question before the appellant left, 8 that the appellant came back at 1 or 2 a.m. the next morning and that later the appellant went to Kuala Lumpur. The other two witnesses are PW22 who was recalled and recorded in the notes of proceedings as DW4 (which technically should not have been) and Gan Yew Teong (DW5), also known as Lorry Ti or Lorry Tee, who admitted arranging the meeting between PW22 and PW17 but was not present at the meeting. DW5 said he was informed by PW22 about the incident by telephone and said he never asked PW22 to send the appellant to Kuala Lumpur.

The learned Judicial Commissioner said the defence of the appellant is in the nature of an alibi but the appellant had failed to give the requisite notice under section 402A of the Criminal Procedure Code. Therefore the court could not, based on Ku Lip See v Public Prosecutor [1982] 1 MLJ 194 consider it. Further, following the Federal Court case of Duis Akim v Public Prosecutor [2013] 9 CLJ 692, identification of an accused by the victim would destroy such a defence and here the appellant was identified by PW2, PW3, PW5, PW17, PW22 and PW26. Therefore, His Lordship held that his identity as the perpetrator of the crime had been proven beyond reasonable doubt. The defence of the appellant, held His Lordship further, was a mere 9 denial and an afterthought. It was an afterthought because the defence has failed to cross-examine the relevant prosecution witnesses on Ah Kent’s role as testified by the appellant and neither was PW22 confronted with the contention of the appellant that it was he (PW22) who directed that the appellant be sent to Kuala Lumpur.

The learned Judicial Commissioner concluded his judgment by considering the issue raised by the defence on the CCTV recordings which were tendered through PW2 and PW23 being the persons manning the CCTV. His Lordship, found that a certificate under section 90A of Evidence Act 1950 was not required as held in Gnasegaran Parajasingam v Public Prosecutor [1997] 4 CLJ 5. Furthermore, PW9 (ASP Fauziah binti Che Mat) who analysed the recording confirmed the said witnesses’ evidence that there was no editing of the recording. In any event, His Lordship was of the view that even without the said evidence, there were sufficient eye witnesses’ account who saw the murder committed by the appellant that night. 10 The Appeal

4 issues were raised before us by learned counsel for the appellant which he had summarised in his written submission read as follows:- “(a) Bahawa Pesuruhjaya Kehakiman yang terpelajar telah terkilaf apabila menerima keterangan saksi-saksi pendakwaan terutama saksi utama SP17 Ng Wei Sing dengan tidak mengikut aturan yang ditetapkan mengikut s 135, 137, 138, 141, 142 dan 143 dan 143 Akta Keterangan 1950 (Akta 56).

Bahawa Pesuruhjaya Kehakiman yang terpelajar telah terkilaf apabila hanya menerima keterangan saksi-saksi pendakwaan SP17, SP22, SP26, SP5, SP3 dan SP2 pada tahap semasa Pemeriksaan Utama dan tidak meneliti keterangan saksi-saksi berkenaan telah dipatahkan semasa Pemeriksaan Balas oleh pembelaan. YA PK yang terpelajar gagal memberi pertimbangan yang 11 sewajarnya ke atas keterangan pada keseluruhannya.

Bahawa Pesuruhjaya Kehakiman yang terpelajar telah terkilaf dengan keputusan dan kedapatan bahawa pembelaan pihak Perayu adalah bersifat alibi di bawah s 402A KTJ dan kegagalan Perayu memberi notis pembelaan kepada Pendakwa Raya.

Bahawa Pesuruhjaya Kehakiman yang terpelajar telah terkilaf dengan menerima keterangan identiti Tertuduh dan kawad cam yang dijalankan tidak sempurna.” 1st Issue

Chapter X of the Evidence Act 1950 which contains the sections raised in this issue is on the examination of witnesses and regulates the same. For ease of understanding the quoted sections/sub-sections are reproduced below. 12

“Order of production and examination of witnesses The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law by the discretion of the court.

Examination-in-chief, cross-examination and re-examination

The examination of a witness by the party who calls him shall be called his examination-in-chief.

The examination of a witness by the adverse party shall be called his cross-examination.

Where a witness has been cross-examined and is then examined by the party who called him, such examination shall be called his re-examination.

Order of examinations and direction of re-examination

Witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross- 13 examined then, if the party calling them so desires, re-examined.

Leading questions Any question suggesting the answer which the person putting it wishes or expects to receive or suggesting disputed facts as to which the witness is to testify, is called a leading question.

When leading questions may not be asked

Leading questions may not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination, except with the permission of the court.

The court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion been already sufficiently proved.”

Learned counsel for the appellant submitted that these provisions have been violated by the then learned Deputy Public 14 Prosecutor having conduct of the trial in respect of PW17’s evidence (at Appeal Record Volume 2D pages 776 to 822 and Volume 2F pages 1236 to 1276) because the learned Deputy Public Prosecutor had asked leading questions and had put questions to the said witness as though he was cross-examining his own witness. This was during evidence-in-chief and this should not had been but the impugned evidence was still admitted by the learned Judicial Commissioner despite objections by learned counsel. Examples of the leading and questions posed to the said witness which had also been reproduced in learned counsel’s written submission are as follows: Kamu cuba ingat apa yang berlaku pada 7.10.2014 kalau ikut rakaman percakapan kamu. Apa yang kamu cakap kepada Polis kamu dan Ah Wai telah pergi ke Restoran Paragon. Kemudian kamu berjumpa dengan Alex? J: Betul.” (See paragraph 112 pages 795 of Volume 2D of the Appeal Record.) 15

Learned counsel submitted that prior to the above question, this Alex was never mentioned by PW17 in his evidence. Semasa di Restoran Paragon Ah Wah dengan simati Ah Wai datang ke kedai tersebut? Betul.” (See paragraph 113 of the same page and volume of Appeal Record as above.)

Further reference was made by learned counsel to the evidence of PW17 at paragraph 54 at page 1246 until paragraph 179 at page 1270 of Volume 2F of the Appeal Record to strengthen the examples given above but which paragraphs we will not reproduce in this judgment.

As for the questions put to the said witness, the examples given are as follows: Saya katakan kepada kamu itu adalah kenderaan kamu, kereta Vios, betul atau tidak? Tak setuju. 16 Saya katakan kepada kamu, kamu telah letakkan kenderaan tersebut di hadapan Restoran Paragon ini, di kedudukan seperti mana jam 12.07.26? Saya tidak pasti itu kenderaan saya tau tidak. Selepas kamu meletakkan kenderaan tersebut, terdapat 3 orang yang telah keluar daripada kenderaan tersebut? Di bahagian kiri kereta dua orang, dan di sebelah kanan seorang, setuju atau tidak? Setuju. Ketiga-tiga mereka tersebut adalah kamu, pekerja kamu, Ah Wai dan kawan kamu Lee setuju atau tidak? Tak setuju.” (See paragraphs 58-61 at page 1247 Volume 2F of the Appeal Record.) Jadi saya katakan kepada kamu tiga orang yang ada dalam kereta ini dan keluar pada waktu tersebut 17 adalah Ah Wai, kamu dan juga Lee, setuju atau tidak? Tak setuju. Ketiga-tiga mereka ini, kamu masuk ke dalam Restoran Paragon berhadapan dengan tempat kenderaan tersebut diletakkan? Tak setuju. Tujuan kamu pergi ke Restoran Paragon bersama dengan pekerja kamu Ah Wai adalah bagi menemani Ah Wai untuk berjumpa dengan seseorang bagi menyelesaikan hal peribadi mereka berdua, setuju atau tidak? Tak setuju. Semasa kamu berada di meja tersebut bersama dengan dua orang yang saya nyatakan tadi, Alex telah datang ke meja tersebut setelah kamu mengangkat tangan? Tak setuju.” (See paragraphs 63 to 67 at page 1248 Volume 2F of the Appeal Record.) 18

Whilst it is glaringly obvious that the questionings by the said learned Deputy Public Prosecutor were more in the nature of a cross-examination of his own witness, but as submitted before us by the learned Deputy Public Prosecutor in his reply to this issue, PW17 was a reluctant witness because his answers to the earlier questions posed by the learned Deputy Public Prosecutor was that he could not remember. As rightly pointed out by him, the learned Judicial Commissioner had considered this difficulty faced by the then learned Deputy Public Prosecutor and had permitted the impugned questions posed under section 154 of the Evidence Act 1950 which provides as follows:

“Question by party to his own witness The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.”

For clarity, His Lordship’s considerations on this issue at paragraphs 30 and 31 not just on PW17’s evidence but PW22’s and PW26’s as well are reproduced below: 19 “[30] Dalam kes ini TPR telah menghadapi masalah untuk mendapatkan keterangan dari saksi-saksi khususnya SP17, SP22 dan SP26 berkaitan dengan kejadian sebenar yang berlaku di tempat kejadian, walaupun mereka merupakan saksi-saksi mata yang berada di tempat kejadian. Keadaan ini telah boleh dijangka kerana mereka adalah rakan simati dan ada di antaranya majikan simati. Oleh kerana saksi-saksi ini telah memberikan keterangan yang berbeza di Mahkamah berbanding dengan rakaman percakapan yang diberikan kepada pihak polis, TPR telah memohon kepada Mahkamah untuk menyoal balas SP17, SP22 dan SP26 mengikut peruntukan seksyen 154 AK. TPR telah menyoal balas saksi-saksi ini berdasarkan kepada rakaman percakapan yang dirakamkan oleh polis satu persatu. Sewaktu disoal balas oleh TPR, saksi-saksi ini mengesahkan mengikut rakaman percakapan, mereka berada bersama simati dan Tertuduh di Restoran Paragon pada malam kejadian. SP17, SP22 dan SP26 juga telah menceritakan dengan terperinci bagaimana kejadian berlaku. Saksi-saksi ini mengatakan jika pernyataan yang 20 dikatakan dalam rakaman percakapan apa yang sebenarnya berlaku maka itu adalah kejadian yang sebenarnya berlaku. [31] Mahkamah tidak menafikan dalam kes ini memang terdapat percanggahan di antara keterangan yang diberikan di Mahkamah dengan rakaman percakapan yang diberikan kepada pihak polis. Walaupun begitu Mahkamah berpendapat oleh kerana pihak pendakwaan tidak meneruskan dengan ‘impeachment proceeding’ Mahkamah tidak menolak keseluruhan keterangan saksi-saksi ini. Setelah menilai keterangan saksi-saksi ini dengan keterangan SP2, SP3 dan SP5 dan keterangan yang dikemukakan oleh pihak pendakwaan, Mahkamah tidak menolak keseluruhan keterangan SP17, SP22 dan SP26 yang bercanggah dan menerima sebahagian keterangan mereka seperti yang telah Mahkamah kemukakan di bahagian penghakiman saksi-saksi pendakwaan. Keterangan-keterangan merangkumi pemeriksaan balas TPR terhadap SP17, SP22 dan SP 26 dan keterangan yang diberikan oleh mereka semasa pemeriksaan utama. Pendirian Mahkamah ini adalah 21 berasaskan kepada keputusan Mahkamah Persekutuan dalam kes Murugan Arumugam lwn PP [2017] 3 CLJ 377 yang bersetuju dengan keputusan Mahkamah Rayuan yang memutuskan seperti yang berikut: “[35] … Having said so, although there are some discrepancies in PW21’s evidence, in the light of the prosecution not pursuing further with any impeachment, it is our judgment that it is within the learned trial’s judge discretion to evaluate PW21’s evidence. There is no reason to reject her evidence in toto. The learned trial judge is entitled to reject part of PW21’s evidence and accept the others upon careful consideration and after testing with all other available evidence adduced at the trial.”

We have decided to reproduce all 3 paragraphs of the said judgment, not only to show that this issue taken by learned counsel had been answered by the said section 154 but also to show that the learned Judicial Commissioner was alive to the contradictions in the said evidence in that he did consider and evaluate the evidence of the said witnesses based on the right 22 judicial approach and legal principles. What must also be remembered is that learned counsel for the appellant at the trial had all the opportunity to cross-examine the said witnesses and was not deprived of the chance to undo whatever damage that had been caused by the said questionings. So, in our view there was no procedural unfairness which would vitiate the trial and earned the appellant an acquittal. 2nd Issue

Learned counsel also laid out the evidence of the respective witnesses named in this issue during cross-examination which we would summarised as follows:

PW17 said he could not identify the appellant in the accused’s dock, could not remember if he identified the appellant during the identification (“ID”) parade but we noted that he did admit attending the ID parade (see paragraph 14, page 1272, Volume 2F of the Appeal Record) and the evidence of the officer conducting the ID parade PW21 (Inspector Gray bin Samuil) as well as the Investigating Officer PW24 (ASP Saudi bin Abdul Rahman) who took over the investigation of the case from 23 ASP Mohd Padhillah bin Che Harun (PW25) showed that PW17, PW2 and PW3 had positively identified the appellant as the assailant. PW21’s report was marked as ExP79 at the trial.

(ii) PW22 said, inter alia, that he went to the Restaurant after being called by Lorry Ti to discuss business, not about the alleged assault (see paragraph 15 of page 1094 and paragraph 26, page 1096 respectively) and had asked the appellant to go there because he was not working on that day (see paragraph 49, page 1099, Volume 2F of the Appeal Record) and never saw the appellant stabbing the deceased (see paragraph 134, page 1114, Volume 2G to paragraph 137, page 1115 of the Appeal Record).

(iii) PW26 said inter alia, that he did not see the appellant chasing the deceased (paragraph 63, page 1405, Volume 2G of the Appeal Record) or saw the stabbing (paragraph 159, page 1435, Volume 2(G) of the Appeal Record) and only identified him as a person entering the Restaurant (see paragraph 166, page 1436, Volume 2G of the Appeal Record). 24

(iv) PW5 said, inter alia, that he did not see the fight (paragraph 19, page 627, Volume C of the Appeal Record) and who the aggressor and the victim were (paragraph 34, page 629, Volume 2C of the Appeal Record).

PW3 said, inter alia, that he did not see clearly the faces of those who fought, not sure of their appearances (paragraph 149, page 256, Volume 2A and paragraphs 22 to 24 of page 340 Volume 2B of the Appeal Record) and could not remember the face of the man identified by him during the ID parade (paragraph 48, page 309, of Volume 2B of the Appeal Record).

(vi) PW2 said he did not see clearly who was involved in the fight and at any given time he could not see the appellant’s face clearly (see paragraphs 172 to 174, pages 143 to 144 of Volume 2A and paragraphs 193 to 194, page 146, Volume 2A of the Appeal Record.

With respect to learned counsel, the learned Judicial Commissioner was fully conscious of the contradictions 25 complained of and this is elucidated in paragraphs 32 to 33 of His Lordship’s judgment as follows: “[32] Memandangkan kepada hubungan di antara SP17, SP22 dan SP26 dengan Tertuduh Mahkamah harus berhati-hati apabila menilai keterangan mereka berbanding dengan keterangan SP2, SP3 dan SP5 yang merupakan saksi-saksi awam dan mereka tidak mempunyai kepentingan dalam kes ini. Mahkamah mendapati adalah tidak munasabah SP17, SP22 dan SP26 tidak tahu apakah kejadian sebenar yang berlaku pada malam tersebut, tidak mengenali dan mengecam siapakah yang terlibat dalam pergaduhan itu sedangkan mereka ada bersama dengan Tertuduh dan simati pada malam tersebut dan mereka juga mengenali simati dan Tertuduh. Oleh itu Mahkamah berpendapat TPR telah mengambil tindakan yang wajar dan tepat apabila menyoal balas berasaskan kepada rakaman percakapan yang diberikan oleh mereka kepada pihak polis. [33] Mahkamah dapati SP2, SP3 dan SP5 telah memberikan keterangan yang kukuh berkait dengan 26 penglibatan Tertuduh dalam pembunuhan ini ke atas simati dan mereka juga pasti dengan identiti Tertuduh yang dicamkan dalam Mahkamah dan semasa kawad cam.”

Furthermore, His Lordship actually addressed his mind to the issue of identification at paragraphs 34 to 37 of his judgment and was perfectly entitled to rely on the dock identification of the appellant by the said witnesses which was not thrown into doubt by the defence. This was how the learned Judicial Commissioner phrased his thoughts on this issue in that last mentioned paragraph: “[37] Tambahan pula semasa saksi-saksi ini memberikan keterangan mengatakan mereka mengecam Tertuduh di dalam kandang Tertuduh, keterangnnya berkait dengan pengecaman tersebut tidak dicabar oleh pihak pembelaan. Mahkamah berpendapat pengecaman terhadap Tertuduh di kandang Tertuduh adalah positif dan tidak ada kekeliruan terhadap identiti Tertuduh. Justeru itu, pihak pendakwaan telah membuktikan Tertuduh 27 adalah orang yang mengejar dan menikam simati pada malam tersebut.”

We fully endorsed His Lordship’s above-mentioned evaluation and findings of the evidence on the identification of the appellant as the assailant who brutally stabbed the deceased that night. Thus, an essential element of the charge had been proven beyond reasonable doubt. 3rd Issue

As can be seen from the narration of the defence earlier, it is the appellant’s contention that he was not present at the time and place when the attack on the deceased was perpetrated. Therefore we have to disagree with his learned counsel that his defence was not one of alibi but a denial that he stabbed the deceased. In this regard, it is instructive to refer to the Federal Court decision of Ku Lip See (supra) which held as follows: “We have noted what Azmi J said in Public Prosecutor v. Lim Chen Len [1981] 1 LNS 11; [1981] 2 MLJ 41 concerning the admissibility of evidence in support of defence of alibi and we are of the view that he decided 28 correctly. If the trial court having considered the evidence put forward by the defence holds that such evidence amounts to evidence in support of an alibi for which no notice under s. 402A Criminal Procedure Code has been given, then he has no discretion in the matter but to exclude such evidence. …… A determination whether a particular evidence is evidence in support of alibi entails a consideration whether the evidence shows or tends to show that by reason of the presence of the accused at some particular place or area at a particular time he cannot be or is unlikely to be at the place where the offence is committed. It is difficult if not impossible to envisage with reference to a particular charge what evidence amounts or does not amount to evidence in support of a defence of alibi. It depends very much on the facts of each particular case. It has been described that “What is ordinarily meant by an alibi is that the accused’s presence elsewhere is essentially inconsistent with his presence at the time and place alleged, and therefore with participation in the crime. An 29 alibi may absolutely preclude the possibility of presence at the alleged time and place of the act; or the alibi may not involve absolute impossibility, but only high improbability and yet be convincing.” (see Criminal Law Review 1978 pp 277-8 and also on p 278 where it is further stated that “a true alibi defence consists of a affirmative proof of the defendant’s presence somewhere other than at the time and place alleged.”).”

Guided by the above reasonings, we agreed with the learned Judicial Commissioner that the defence was indeed one of alibi as the appellant said he was not at the place and time when the murder was committed but had left the Restaurant when it happened. However, even if the learned Judicial Commissioner (and us included) have wrongly labelled the defence as one of alibi, that error still could not exculpate the appellant because the learned Judicial Commissioner had gone on to consider his denial of committing the offence at paragraphs 73 to 79 of the judgment and had labelled the defence the appellant raised as an afterthought. His Lordship’s reason for saying so is at paragraph 80 of the judgment which we could not find any fault with: 30 “[80] Mahkamah juga berpendapat pembelaan Tertuduh juga adalah pembelaan yang áfterthought’. Nama Ah Kent dan peranan Ah Kent tidak pernah dicabar kepada saksi-sakti pendakwa semasa mereka memberikan keterangan khususnya SP22[SD4]. Berasaskan kepada keterangan Tertuduh dan SD4, Ah Kent merupakan satu watak yang penting untuk menghilangkan kemusykilan atau menjelaskan kenpa Tertuduh meninggalkan Kuantan dan pergi ke Kuala Lumpur selepas kejadian. Kegagalan pihak pembelaan untuk menyoal balas saksi pendakwaan berhubung dengan Ah Kent menunjukkan pembelaan Tertuduh hanyalah satu rekaan dan ‘afterthought’, justeru itu membolehkan Mahkamah untuk tidak memberikan penekanan kepada pembelaan Tertuduh kerana kredibiliti Tertuduh telah terjejas, Tan Kim Ho & Anor v PP [2009] 3 CLJ 236, Teng Howe Sing v PP [2009] 3 MLJ 46.” 31

The appellant’s counsel raised another point as regards this issue and it is the amendment of the time of the offence by the learned Judicial Commissioner at the close of prosecution’s case, from 12 midnight in the original charge to 12.35 a.m. in the amended charge (ExP94). The appellant, submitted his counsel was never given the chance to recall the prosecution witnesses following the amendment.

When we examined the relevant notes of proceeding on this, at pages 1728 to 1729 of Volume 2 of the Appeal Record, it was obvious that the appellant’s counsel never informed the court that he wished to recall any of the prosecution witnesses following the amendment. With respect, since the appellant had the services of a counsel, he must be deemed to know his right to recall the witnesses following the amendment and this complaint by his present counsel is only valid if an application to recall the witnesses had been made but was rejected. Furthermore, as alluded to earlier, the appellant did apply to recall PW22 as a witness and he was identified in the notes of proceeding by the court as DW4 which technically should not be so because a witness cannot be both for the prosecution and defence. It is either one or the other and when recalled by the 32 opposing party calling him, such a recall should only be for the purpose of cross-examination. Unfortunately, in this case PW22 cum DW4 gave evidence in-chief for the defence, was then cross-examined and then re-examined by the appellant’s counsel. Regrettable this course of action may be and although the right procedure was not adopted, on the facts of this case it did not prejudice the parties in any way, especially the prosecution. 4th Issue

This issue on the identity of the appellant, from the evidence of PW2, PW3, PW5, PW17, PW 22 and PW26 is somewhat duplicated with the 2nd issue discussed earlier for it revolves around the identification, or rather non-identification of the appellant by these witnesses as contended by the appellant’s counsel. We therefore need not have to repeat our consideration of the same except to say that the learned Judicial Commissioner had devoted part of his judgment to consider the issue of the appellant’s identity starting with paragraphs 34 until 42 of his judgment. Part of that consideration had been produced earlier in this judgment of ours. Suffice for us to reiterate that His Lordship had given due weight to the dock 33 identification of the accused by the said witnesses, to the fact that PW17, PW22 and PW26 were acquaintances of the appellant and seated at the same table with him on the night of the incident and that the evidence of these witnesses including PW2, PW3 and PW5 were corroborated by the CCTV recordings. The learned Judicial Commissioner then made this finding at paragraph 36 of the judgment. “[36] Mahkamah berpendapat tidak ada keraguan apabila saksi-saksi ini mengatakan mereka mengecam Tertuduh dan simati pada malam kejadian kerana kawasan tempat kejadian adalah terang, diterangi oleh cahaya lampu jalan dan lampu-lampu kedai yang masih beroperasi. Kawasan itu pula adalah kawasan lapang di atas jalanraya yang membolehkan saksi-saksi melihat secara terus ke arah tempat kejadian tersebut. Jarak saksi-saksi ini juga berdekatan dengan tempat kejadian. Peguambela juga tidak mencabar keadaan cahaya di tempat kejadian.”

As rightly raised by the learned Deputy Public Prosecutor in his written submission, it is trite law that an appellate court should be slow to interfere with a finding of credibility of a witness by a 34 trial judge and this court in Ahmadi Moharam Lotfollah v Public Prosecutor [2014] 1 LNS 334 said this: “[34] It is trite that the issue on the credibility of a witness is a finding made by a trial judge which we will always be slow to interfere. The court must always take cognizance about human fallibility and the different mental faculties of witnesses. Minor discrepancies is excusable and no two witnesses can be expected to give the exact details of each occurrence of events especially after a lapse of some time. Ordinarily witnesses cannot be expected to recall accurately the sequence of events which had taken place. No two persons would possess the same power of observation, retention, recollection and of course, memory.. (Bharwada Bhoginbal Hirjibhai AIR 1983 SC 753).” (emphasis added)

The Federal Court in Duis Akim’s case (supra) at page 712 had also laid down the factors which constitute good quality identification of the appellants in that case which included the fact that the sole eye-witness (PW1) to the murder in the cited case did not just have a fleeting glance of the appellants and 35 that as an appellate court it should not interfere with the assessment by the learned trial judge of PW1 as a witness on the issue of identification of the appellants. We are confident that the above principle should apply here since PW17 and PW22 had a full view of the appellant at the Restaurant and it was not just a fleeting glance too. Thus, we reiterate our view expressed earlier that the identity of the appellant as the assailant had been proven beyond reasonable doubt. Conclusion

Based on the above considerations of the issues raised, we dismissed the appeal and affirmed both the conviction and sentence passed by the learned Judicial Commissioner. Signed. RHODZARIAH BINTI BUJANG Judge Court of Appeal Malaysia Putrajaya Date: 13th May 2019 Note : This copy of the Court’s Grounds of Judgment is subject to editorial revision. 36 Parties Appearing: For the Appellant: Mr. Liow Boon Lee Messrs Norma Goh & Co For the Respondent: DPP Tuan Muhammad Azmi bin Mashud DPP Tuan Mohd Zain bin Ibrahim Attorney General Chambers Cases Referred to:

Mohd Bakri Belaho v Public Prosecutor [2008] 2 CLJ 240;

Ku Lip See v Public Prosecutor [1982] 1 MLJ 194;

Duis Akim & Ors v Public Prosecutor [2013] 9 CLJ 692;

Gnasegaran Parajasingam v Public Prosecutor [1997] 4 CLJ 5;

Ahmadi Moharam Lotfollah v Public Prosecutor [2014] 1