Hii Siew Chung v Pendakwa Raya (Q-05(M)-162-03/2019)

The Appellant (Hii Siew Chung) was charged under s.302 of the Penal Code for the murder of one Tiong Kah Hock (“the Deceased”). The charge against the Appellant was as follows: “That you, Hii Siew Chung (NRIC: 830908-13-5021) on 23 January 2017, between 3.00 am and 7.00 am, at an open area, Jalan Ting Sing, Sungai Bidut, in the district of Sibu, in the State of Sarawak, did commit murder by causing death of Tiong Kah Hock (NRIC: 860719-52-5589), and you thereby committed an offence punishable under section 302 of the Penal Code (Act 574).”

At the end of the case for the defence, and upon conclusion of the trial, the learned Judge of the High Court at Sibu, Sarawak (“the learned Judge”) by the Order dated 14 March 2019, found the Appellant guilty of the offence of murder under s.302 of the Penal Code and sentenced him to death. The learned Judge’s Grounds of Judgment are reported in the electronic law journal as PP v. Hii Siew Chung [2019] 1 LNS 2056, [2019] MLJU 2054, [2019] AMEJ

The Appellant lodged an appeal to the Court of Appeal. The appeal came up for hearing on 20 February 2023. At the conclusion of the appeal, we were satisfied that the Appellant’s conviction for the offence of murder was unsafe. We allowed the appeal and set aside the High Court’s decision. The Appellant was then acquitted and discharged. We gave broad reasons for allowing the appeal. This Judgment is an amplification of the broad grounds and contains our detailed reasons for allowing the Appellant’s appeal. 3 | P a g e Circumstantial evidence – The Law

The Prosecution’s case rested entirely on circumstantial evidence. There were no eye-witnesses who saw the Appellant committing the act of murder. The Prosecution’s case hinged principally on the contention that the Deceased was “last seen alive” with the Appellant at about 2.00am on 23 January 2017. The Deceased’s body was discovered on 26 January 2017. The Appellant was arrested on 27 January 2017. On 1 February 2017, whilst in police custody, the Appellant (allegedly) said to a police officer, PW21, that he could show where the iron pipe was thrown and then led the police to the Sungei Maaw river at Jalan Hock Lee, where an iron pipe (3 feet long and 4 ¼’ in diameter) was recovered from the river-bed (Exhibit P41A).

The law on circumstantial evidence is well established. This Court had occasion to deal with the jurisprudence on circumstantial evidence in the case of That Wei v. PP [2021] CLJU 1358, [2021] 1 LNS 1358 (CA) which was also a case under s.302 of the Penal Code where the Prosecution relied entirely on circumstantial evidence. The following paragraphs from the judgment in that case are relevant: [4] The law does not insist that there must be direct evidence such as the evidence of an eyewitness. Thus, the absence of an eyewitness is not of itself indicative of whether the accused was complicit in the crime for which he had been charged. In the absence of direct evidence, the prosecution has to rely on circumstantial evidence. In some situations, circumstantial evidence is the only available evidence. However, the circumstantial evidence must of such a nature and quality that it is compelling and convincing to amount to proof beyond reasonable doubt. In that sense, circumstantial evidence may be as good as direct evidence. In this regard, it is appropriate to refer to the words of Lord Hewart CJ in the case of R v. Taylor, Weaver and Donovan [1928] 21 Cr App R 20, CCA at p 21 where he said: 4 | P a g e 'It has been said that the evidence against applicant is circumstantial: so it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undersigned coincidence is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that it is circumstantial.' [Emphasis added] [5] The challenge for the prosecution in mounting a case which is predicated on circumstantial evidence is that they bear a heavy burden in their endeavour to secure a conviction. In Lim Hean Cheong v. Public Prosecutor [2012] 1 MLJ 149; [2011] MLJU 759; [2012] 2 CLJ 1046; [2011] CLJU 1078; [2011] 1 LNS 1078; [2012] 1 AMR 160 (CA) the Court of Appeal described the prosecution's burden in the following words: [53] In this case the prosecution relied purely on circumstantial evidence to prove its case against the appellant. The onus on the prosecution, where the evidence relied on is circumstantial, is a very heavy one and that the evidence must point irresistibly to the conclusion of the guilt of the accused. If there are gaps in it, then it is not sufficient (Chang Kim Siong v. Public Prosecutor [1968] 1 MLJ 36). Where the evidence is wholly circumstantial what has to be considered is not only the strength of each individual strand of evidence but also the combined strength of these strands when twisted together to make a rope. The real question is: is that rope strong enough to hang the prisoner? (Chan Chwen Kong v. Public Prosecutor [1962] MLJ 307). [54] In Chandmal & Anor v. State of Rajasthan AIR 1970 SC 917, the Supreme Court of India in dealing with circumstantial evidence had this to say: It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. That is to say the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused's guilt. 5 | P a g e

The law on circumstantial evidence was also lucidly explained by the Federal Court by Justice Zaki Bin Tun Azmi (PCA-as he then was), in PP v. Hanif Basree Abdul Rahman [2008] 4 CLJ 1, [2008] 3 MLJ 161 (FC) (which was also a case of murder under s.302 of the Penal Code) where the following legal propositions were stated with remarkable clarity: [27] Circumstantial evidence is defined in no better words than in the remarks in the case of Idris v. PP [1960] CLJU 40; [1960] 1 LNS 40; [1960] MLJ 96, which quoted Lord Cairns' in the House of Lords case of Belhaven & Stenton Peerage [1875-1976] App. Cas. 278 at p 279: My Lords, in dealing with circumstantial evidence we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand you may have a number of rays, each of them insufficient but all converging and brought to bear upon the same point and when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel. [28] The learned trial judge in Idris v. PP said: In other words circumstantial evidence consists of this: that when you look at all the surrounding circumstances, you find such a series of undesigned, unexpected coincidences that, as a reasonable person, you find your judgment is compelled to one conclusion. If the circumstantial evidence is such as to fall short of that standard, if it does not satisfy that test. If it leaves gaps then it is of no use at all. As I have stated this case depends entirely upon circumstantial evidence. [29] The Court of Appeal in the present case said: Where the evidence is wholly circumstantial, what has to be considered is not only the strength of each individual strand of evidence but also the combined strength of these strands when twisted together to make a rope (see Chun Chwen Kong v. Public Prosecutor [1962] CLJU 22; [1962] 1 LNS 22; [1962] MLJ 307). There is insufficient evidence to connect the respondent with the killing. Circumstantial evidence should be such that when you look at all the surrounding circumstances, you find such a series of undesigned, unexpected coincidences that, as a reasonable person you will find your judgment is compelled to one conclusion. If the circumstantial evidence is such as to fall short of that standard, if it does not satisfy that test, if it leaves gaps, then it is of no use at all. (See Idris v. Public Prosecutor [1960] CLJU 40; [1960] 1 LNS 40; [1960] MLJ 96) 6 | P a g e [30] Abdoolcader FJ in Dato Mokhtar bin Hashim v. PP [1983] CLJ 101 (Rep); [1983] 2 CLJ 10; [1983] 2 MLJ 232 at p. 275 said: Where circumstantial evidence is the basis of the prosecution case the evidence proved must irresistibly point to one and only one conclusion, the guilt of the accused, but in a case tried without a jury the failure by the Court to expressly state this is not fatal and it would suffice if it merely says that it is satisfied as to the guilt of the accused beyond reasonable doubt (Jayaraman & Ors. v. PP [1979] CLJU 36; [1979] 1 LNS 36) [31] The trial judge in this case must therefore view all the evidence before him and decide whether all the evidence taken together is sufficient to prove the offence against which the accused is charged.

In the appeal before us, the case presented at the trial by the Prosecution was that the Appellant and the Deceased were seen talking to each other at the Hong Soon Cafe, located at Jalan Maling in Sibu, Sarawak from around 5.00 – 6.00pm 22 January 2017 to around 2.00 am on 23 January 2017. The Hong Soon Cafe is situated next to a wooden building where the Appellant stayed in a room with his wife (PW19) and his children. Another person called Jenny lived in the room which is next to the Appellant’s room. (see: sketch plan – Exhibit P70). PW19 was the key (and only) witness for the Prosecution in terms of purportedly placing the Deceased in the company of the Appellant from around 5.00 – 6.00 pm 22 January 2017 to around 2.00 am on 23 January

However, it is relevant to mention here that Jenny did not testify at the trial. 7 | P a g e

The Prosecution relied solely and entirely on PW19 to establish that the Deceased was “last seen alive” with the Appellant. According to PW19, the Deceased, whom she referred to by his purported nick-name “Tiga Nam Nam” was chatting with the Appellant outside the Hong Soon Cafe from around 5.00 pm on 22 January 2017 until the early hours of the morning (around 2.00am) on 23 January 2017. According to PW19, she was at the verandah of her house chatting with her friend/neighbour, Jenny from the evening of 22 January 2017 around 6.00pm until the next morning (23 January 2017) around 6.00am and it was during this period that she saw the Deceased in the company of the Appellant, outside Hong Soon Cafe. However, as mentioned earlier, Jenny did not testify at the trial. PW19 said that she saw the Appellant riding away on the motorcycle (Registration No. QS7012F) with the Deceased as his pillion. This took place around 2.00am on 23 January 2017. PW19 said that she was the owner of the said motorcycle.

It was part of the Prosecution’s case that the Deceased had parked his BMW X6 motorcar (Registration No. QS7557G) (“the BMW”) next to the Hong Soon Cafe and the said vehicle was left outside the Hong Soon Cafe from the evening of 22 January 2017 until several days later when PW4 (someone who had known the Deceased for only about 3 months prior to the death of the Deceased) had collected the spare-keys from the Deceased’s girlfriend (PW12) and driven the BMW to PW12’s house. There was no explanation by any of the Prosecution’s witnesses as to why the Deceased would have left the BMW behind and taken a ride as a pillion on the Appellant’s motorcycle at 2.00am on 23 January 2017. 8 | P a g e

A point that seems to have escaped the attention of all sides was that there were valuable items that were left in the BMW, namely a Rolex watch, money and gold items. PW12 said, “What I can remember is that inside the box it consists of one Rolex watch, one diamond ring, 2 gold pendants, and one gold bracelet”. There is no suggestion by the Prosecution that anything was stolen from the BMW. Indeed, the keys to the BMW were in fact found on the person of the Deceased when his body was discovered on 26 January 2017. There was no evidence of the Appellant and Deceased having any business or other transactions whatsoever. The only business link may perhaps be gathered from the evidence of PW19 who said that the Appellant dealt with wood and the Deceased transported the wood for the Appellant. But this fact was not even firmly established, nor even put to the Appellant when he testified. However, that is as far as it goes.

There was no suggestion or any evidence led by the Prosecution of the Appellant having any motive whatsoever to kill the Deceased. We accept of course that it is not necessary for the Prosecution to prove any motive for the murder. But in the context of a charge of murder which is predicated on circumstantial evidence and particularly where the case rests on the theory of the Deceased being “last seen alive” with the Appellant, motive is essential. But, we are obliged to make it clear that we are not suggesting that the Prosecution’s case falls because of the absence of evidence of any motive. Rather, in the context of a case such as the present one, we think that motive becomes important. 9 | P a g e

In this regard, we refer to the Court of Appeal’s decision in Lim Hean Cheong v Public Prosecutor [2012] 1 MLJ 149, [2011] MLJU 759, [2012] 2 CLJ 1046; [2011] 1 LNS 1078; [2012] 1 AMR 160 (CA) where it was stated that where the prosecution relied entirely on circumstantial evidence, then “motive” must be established so that it tilts the scale against the accused person. At paragraph [41] the Court of Appeal stated the principle in the following words: [41] Although in general motive of a crime is not an essential factor that ought to be considered, but where the prosecution's case is based solely on circumstantial evidence, motive is important in such cases to tilt the scale against the accused. In Ratanlal and Dhirailal Law of Crimes, (24th Ed), Vol 22 at p 1448, the learned author articulated: … Ordinarily, when there is sufficient, direct and circumstantial, evidence connecting the accused with the commission of the offence the proof of motive become unimportant. But where the entire prosecution case rests on circumstantial evidence, motive undoubtedly plays an important part in such cases to tilt the scale against the accused, and if as in the instant case, the prosecution evidence has failed to prove sufficient motive for the murder of his newly wedded wife on the part of the accused-respondent, and the circumstances relied upon by the prosecution appeared to be equivocal and not conclusive of his guilt, the acquittal of the respondent as ordered by the High Court must be upheld.

But we are equally cognizant of the Federal Court’s contrary opinion which was rendered in the later case of Pathmanabhan a/l Nalliannen v PP and other appeals [2017] 3 MLJ 141; [2017] 4 CLJ 137; [2017] 3 AMR 105; [2017] AMEJ 371 (FC) where it was posited that proof of motive was not a sine qua non for a conviction based on circumstantial evidence. We refer to the following paragraphs from the Federal Court’s judgment; [160] Section 8(1) of the EA stipulates that motive is a relevant fact. It reads: 8 Motive, preparation and previous or subsequent conduct 10 | P a g e

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. [161] Ratanlal & Dhirajlal’s, Law of Crimes, With List of Malaysian Cases, (24th Ed) Vol 2, at p 1391 summarises the law on motive in the following words:

Motive is the ultimate end which a person hopes to achieve whereas intention is the immediate effect of his act. Motive is something which prompts a person to form an intention. The motive behind a crime is a relevant fact on which evidence can be given. Absence of motive is also a circumstance which is relevant for assessing the evidence. Proof of motive satisfies the judicial mind about the authorship of the crime but the absence does not ipso facto result in the acquittal of the accused. Motive is not a sine qua non to prove the case of the prosecution. Absence of proof only demands deeper forensic search and cannot undo the effect of evidence if otherwise is reliable and sufficient. [162] In Molu And Ors v State of Haryana AIR 1976 SC 2499, the Indian Supreme Court aptly observed: It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes, the motive is clear and can be proved and sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of eye witnesses is creditworthy and is believed by the court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant. [163] The Court of Appeal in Abdul Samid bin Edward v Public Prosecutor [2015] 4 MLJ 58; [2015] 4 CLJ 149 made similar remarks which read: Although motive was an important element to look out for when relying on circumstantial evidence to convict an accused, it was not in our view, an absolute must, in the sense that, an absence of an established ‘motive’ would exculpate the accused from the charge proffered against him, notwithstanding all other evidence which points to the accused being guilty of the crime charged. [164] Similarly, Sinha J in Atley v State of Uttar Pradesh AIR 1955 SC 807 at p 810 stated: 11 | P a g e Where there is clear proof of motive for the crime that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. If the prosecution has proved by clear evidence that the appellant had reasons of his own for getting his first wife out of the way, that would have lent additional assurance to the circumstantial evidence pointing to his guilt. But the fact that the prosecution has failed to lead such evidence has this effect only, that the other evidence bearing on the guilt of the accused has to be very closely examined. [Emphasis added]

It is necessary to emphasize that the decision of the Federal Court in Pathmanabhan a/l Nalliannen (supra) establishes that if motive is absent, and the Prosecution’s case is predicated on circumstantial evidence, then, “absence of proof only demands deeper forensic search and cannot undo the effect of evidence if otherwise is reliable and sufficient”. In those circumstances, the learned Judge must keep in mind that “the other evidence bearing on the guilt of the accused has to be very closely examined”.

Next, we turn to the (alleged) discovery of the (alleged) murder weapon (Exhibit P41A). According to the Prosecution, on 1 February 2017, whilst the Appellant was under police custody, he led the police team to a river in Sibu where he had (allegedly) thrown a piece of “wood” (“the so-called murder weapon”). The police team spent hours looking for the piece of wood in a different location along the river (Sg.Maaw), but were unsuccessful. It is alleged that the Appellant was held in the custody of a team of police personnel at the Mee Hock Cafe whilst the other team members were looking for the piece of wood. 12 | P a g e

It is alleged that when the search for the piece of wood was unsuccessful, the Appellant informed PW21 that he would show where he threw the iron pipe. There was no evidence to show what had prompted the Appellant to volunteer the information which would incriminate him and tie him to the murder of the Deceased

Inspector Baharuddin Bin Sabang (PW21) testified as follows: “A: The accused had informed me that the said item he had thrown away at a different place. Then I asked the accused whether he can show it to me where is that place, then he informed me that he can show to me where the iron rod was thrown away. Q: And then what happened after you were informed such by the accused? I recorded the information on one A4 paper and I signed on it and read it back to the accused then the accused put his signature on that paper.”

PW21 further gave evidence that it was the information from the Appellant that led to the finding of the iron rod (P41A): “Q: Can you tell the court what happened from Sg. Maaw to the place that the accused person intended to show to you? I together with L/Cpl Sokongan Khairul, Sjn. Hafizul and Sjn. Bubi together with the accused used one car to go to the location showed by the accused. Later, I found out that that place is known as Jalan Hock Lee. I went out from the car and instructed the accused to alight from the car and the handcuff was opened. I then asked the accused to show the place where the iron rod had thrown away. The accused then walked to one bridge and pointed in the direction of the river. Then the F & R team going down and do the search. Q: Then, anything was found by F & R team who went down to do the search into the river? Yes, the F & R team who found one iron rod and then showed it to the accused and the accused nodded.” 13 | P a g e

According to the Prosecution, the Appellant’s words were reduced into writing by PW21 who was with the Appellant at Mee Hock Cafe and that the Appellant signed on the document which was produced at the trial and marked as Exhibit P69. The document reads, “Saya boleh tunjuk mana tempat itu besi saya buang.” The alleged murder weapon, namely the iron-pipe (Exhibit P41A) which was recovered from the Sungei Maaw river at Jalan Hock Lee, Sibu by itself did not incriminate the Appellant and neither was it proven by way of inter alia finger print, human tissue residue or blood stains etc., to be connected with the death of the Deceased. What was said to be incriminating vis-à-vis Exhibit P41A was the handwritten note P69, which was prepared by PW21. Now, the provenance of Exhibit P69 is itself controversial as it was in the handwriting of PW21 and signed by the Appellant allegedly at the Mee Hock Cafe in Sibu. At the trial the Appellant said that he did not say those words which appeared in P69 and he was just asked to sign a few documents at the police station and was also asked to stand at a bridge on the river and point in the direction of the river.

Exhibit P41A is an important piece of evidence as the iron-pipe was later recovered from the Sg. Maaw river at Jalan Hock Lee by a member of the Fire & Rescue Department. The Prosecution then relied on various photographs [P15 (1-6)], showing the Appellant standing on a bridge across the river at Jalan Hock Lee and pointing in the direction of the river, from which Exhibit P41A was purportedly recovered by the Fire & Rescue Personnel, Edwin AK Jonani (“Edwin”). Edwin was identified at the trial but he did not testify. At the close of the Prosecution’s case, Edwin was offered to the defence (Appellant). 14 | P a g e

The Appellant denied signing on Exhibit P69 at the Mee Hock Cafe. He said that the words appearing in Exhibit P69 were not his and that he was asked to sign several pieces of paper at the police station. He said he never signed anything whilst at the Mee Hock Cafe. As for the photographs, he said that he was asked by the police to stand on the bridge and point in the direction of the river. Thus, the crucial question is – when the Appellant was held in the Mee Hock Cafe on 1 February 2017 (afternoon) in the presence of PW21 and guarded by other police officers (D/Sgn. Pani, D/Sgn. Hafizul and Sgn. Bubi) (when the Fire & Rescue personnel were scouring the Sungei Maaw river to recover the so-called piece of “wood”), did he voluntarily or on his own volition, say to PW21, “Saya boleh tunjuk mana tempat itu besi saya buang.” as appearing in Exhibit P69 and did he then put his signature on the document whilst at the Mee Hock Cafe.

The Appellant’s narration of events is that on 22 January 2017, at around 4.00pm, he went to his mother’s house at Jalan Hock Lee which is about 20 minutes away from where he lived (behind Hong Soon Cafe – Jalan New Maling, Sibu). He met his uncle (DW3). At 5.00pm, he left his mother’s house and went to Hong Soon Cafe with DW3 (as his pillion). At 6.00pm, his friend (DW2) joined them. Hong Soon Cafe closed for business at 7.00pm and so the three of them went to sit on the wooden bench in front of the coffee shop. DW2 left at 8.00pm. Around midnight or 1.00am, the Appellant used his motorcycle and sent DW3 back to the latter’s house. The Appellant stayed in his mother’s house and came back to his own room at 6.00am on 23 January

He was arrested on 27 January 2017 and held in police custody. There is no evidence to suggest that the police had any basis for arresting the Appellant. 15 | P a g e

The Investigating Officer (PW20) made a statement during the evidence in chief that after the Appellant was interrogated, they were satisfied that he was involved in the murder. But PW20 conceded that there was no evidence to connect the Appellant to the murder. This is what PW20 said: I was informed by ASP Irwan that the first arrest made on the accused was based on the investigation and information for the documentation on the accused. The 2nd arrest was made on the accused after the interrogation on the accused and found out that he involved in this murder case. Would you agree with me that after interrogation the accused was suspected to have been involved in this case? Why do you say no? Because as the result from the investigation and information obtained by ASP Irwan showing that the accused was involved in this case but there was still no strong evidence to connect the accused to this case. You were saying that the information was obtained by ASP Irwan and not you, would you agree? Against the accused. Yes. I put it to you that you have no personal knowledge regarding the involvement of the accused, agree? Yes, at that material time. After the accused was arrested, detained and remanded, did you interview and interrogate the accused?

We should add at this stage that during cross examination, the Appellant denied killing the Deceased. He also denied saying to PW21 “Saya boleh tunjuk mana tempat itu besi saya buang.”. He also said that he did not sign anything whilst at Mee Hock Cafe. 16 | P a g e

As stated earlier, the Prosecution relied on two strands of circumstantial evidence, namely, (1) that the Deceased was last seen alive with the Appellant at around 1-2am on 23 January 2017, before his body was discovered on 26 January 2017 at Jalan Ting Sing, Sungei Bidot in Sibu and,

the evidence that it was the Appellant who lead the police to the discovery of the iron pipe (Exhibit P41A) which was recovered by the personnel from the Fire and Rescue Department (F&R) from Sungei Maaw, Jalan Hock Lee, Sibu on 1 February 2017.

The Appellant was arrested on 27 January 2017. The post-mortem on the Deceased was performed by Dr Mohd Shah Bin Mahmood (PW18) who determined that the cause of death was blunt force trauma. When the Deceased’s body was discovered on 26 January 2017, it was in an advanced stage of decomposition and facial recognition was not at all possible. The Deceased’s older sister, Ms. Tiong Hua Hiong (PW11) identified the body of the Deceased. She recognized her younger brother by the clothing which he had worn. PW18 (the pathologist) conducted Deoxy-Ribonucleic Acid (DNA) profiling and was able to match the Deceased’s DNA with that of his mother, Mdm Ling Mee Sieng (PW13).

The witnesses who testified for the Prosecution are as follows: PW1 SI Bhaskaran A/L Andy (RF/101780) PW2 Sjn Remong Ak Kendawang (RF/91656) PW3 L/Cpl Zainuddin Bin Aripin (RF/168393) PW4 Khu Ing Hock (930804-13-5893) 17 | P a g e PW5 Cpl Galvin Anak Edmund (RF/153692) PW6 ASP Mohd Irwan Hafiz Bin Md Radzi (G/16308) PW7 Rina Binti Md. Nawi @ Rizak (860501-29-5012) PW8 L/Cpl Azlan Enriquez Feliciano (RF/l68930) PW9 Cpl Mohamad Aliff Abu Hassan (RF/l56311) PWl0 Insp Mohd Firdaus Safuan Abdul Rasib (G/18583) PW11 Tiong Hua Hiong (820328-13-5106) PW12 Sii Siew Ming (870927-13-51461) PW13 Ling Mee Sieng (560706-13-5130) PW14 Mohd Riduan Bin Md Bakhir (791112-11-5253) PW15 SM Mohd Wahed Bin Hj Apit (RF/121760) PW16 Nurazian Abdul Raof (880813-56-5198) PW17 Sjn Mohammad lskandar Bin SawoniSaili(RF/133964) PW18 Dr Mohd Shah Bin Mahmood (600226-01-5037) PW19 Roseline Ak Tegang (890421-13-69241 PW20 ASP Mohd Fazirul Bin Mohd Fisol (G/18377) PW21 lnsp Baharuddin Bin Sabang (G/17808) Defence (Appellant’s) Witnesses 28. The witnesses who testified for the Appellant are as follows: DW1 Hii Siew Chung (Appellant) DW2 Kerry Ting Siong Hing (Appellant’s friend) DW3 Tiong Sie Ting (Appellant’s maternal uncle) 18 | P a g e

The Prosecution relied entirely on PW19’s evidence to establish the fact that the Deceased was “last seen alive” with the Appellant. The Prosecution could have but did not call the neighbor, Jenny, to back up what PW19 had said – that at about 2.00 am on 23 January 2017 the Appellant was seen riding the motorcycle and the Deceased was riding pillion on the motorcycle. The Prosecution did not offer any explanation as to why Jenny was not called to testify.

Thus, Hong Soon Cafe is a critical location as this is the place where PW19 said that she was seated somewhat outside her room (at the verandah) chatting with Jenny, who was with her the whole time. Indeed, from her evidence, it seems that PW19 and Jenny were both outside the Hong Soon Cafe from 6pm on 22 January 2017 until about 6.00am the next morning (23 January 2017).

The relevant part of PW19’s evidence reads as follows: Where were you on January 22, 2017? At that rented house. Can you recall at what time you saw the accused person on January 22, 2017? At noon. Can you recall roughly at what time? Around 1 to 2 p.m. Can you tell the court what did you observe when you saw your husband around 1 to 2 p.m.? He looked angry. Go on. He got angry because I refused to go home. At that time, I was at my auntie's house. What do you mean at that time? On Friday, I went to my auntie's house and stayed overnight. 19 | P a g e When you said the accused person looked angry, where was he at that point in time? At the coffee shop. Can you recall the name of the said coffee shop? I can't remember. Is that coffee shop near to the rented house of yours and the accused person? Yes. Can you recall at that point of time with whom the accused person was at the coffee shop? With his friends. How many? I am not aware. Can you recognise any of the accused person's friends? No because I just passed by and then straight away entered the room. Did you at any time go out from your rented house afterwards? Yes. Can you recall at what time? Around 5 to 6 p.m. In between 1 to 2 o'clock until 5 to 6 p.m., did you just stay at the rented house of yours? I did sit outside. Can you recall in between 1 to 2 o'clock until 5 to 6 p.m. did the accused person come back from the coffee shop to the house? He did enter the room for a while just to take the cigarette. When you went out at around 5 to 6 p.m., can you tell the court the accused person, where was he at that point of time? At the same coffee shop. Was he alone at that point in time? He was together with his friends. Was it the same friends as you have mentioned earlier? Can you tell the court whether these new friends who were at the coffee shop near to your house, did you recognise them? I recognised one of them. Can you tell the court the name of the person that you recognised? I do not know his real name but his nickname is "tiga nam nam". The coffee shop where your husband was seen with another friends of his, was it near to your rented house? Yes. 20 | P a g e Can you tell the court for how long your husband stayed with his friends at the coffee shop together with "tiga nam nam"? From that evening until around 1 to 2 a.m. 1 to 2 a.m. of the next morning? Yes. That would be on 23.1.2017? Yes. … Earlier you mentioned that you observed your husband were together with his friends including "tiga nam nam" at the coffee shop. Can you tell the court where were you at that material time? I was sitting at the five footway. At that point of time, did you have a clear view of your husband together with his friends including "tiga nam nam"? At that time, there were only two of them and I saw them from a distance. The first time you saw your husband together with his friends according to your testimony this was when you came back and straight away went to your rented room. Yes. And earlier you testified that you did not know your husband's friends, who were they? Yes. The second time was around 5 to 6 p.m. where you observed your husband together with another friends including "tiga nam nam". At that time only two of them. You mentioned you observed your husband and "tiga nam nam". Did you have a clear view of your husband and "tiga nam nam" at the coffee shop at that material time? I only saw their heads because the bodies were blocked by the car parked there. Did you know what type of car that blocked your view from seeing full body of your husband and "tiga nam nam"? The new BMW car, big size. Can you recall the colour of the said BMW? White colour. Did you know the owner of the said BMW with white colour? Initially I do not know but after I asked my husband, he told me that it is "tiga nam nam's" new car. Can you recall when did you ask your husband about "tiga nam nam's" car? When he entered the room to take the cigarette. 21 | P a g e Was this the same time which was between 1 to 2 until 5 to 6 p.m. earlier? Yes. Can you tell the court where were you when your husband entered the room to take the cigarette? Inside the room watching the TV. Can you tell the court what make your husband tell you about "tiga nam nam" was together with him and "tiga nam nam's" new car? He told me that his friend came and hang around together and he wanted to show him his new car. Prior to this date, have you ever met "tiga nam nam"? Once in a while. Can you tell the court the distant from your rented room and the coffee shop? The coffee shop is in front and my rented room is at the back. Is it near? Yes. Can you tell the court once again for how long your husband hanged out with "tiga nam nam" at the coffee shop? From evening until the next morning about 1 to 2 a.m. ...... Can you tell the court once again for how long your husband hang out with "tiga nam nam" at the said coffee shop? From the evening until the next morning. After you observed your husband was at the coffee shop together with "tiga nam nam", anything else happened afterwards? Around 1 to 2 a.m. my husband took the motorcycle. What kind of motorcycle? Honda. What colour? Black colour. Can you recall the registration number?

Is that the full registration number or what? QS7012F. Who is the owner of the said motorcycle? Me. 22 | P a g e From 5 to 6 p.m. of 22.1.2017 until 1 to 2 a.m. of 23.1.2017 did you just stay at the five foot way? Yes, until past 6 a.m. In between that time, did you go in and out from your rented room? Did you stay there alone? With my friend. Can you recall your friend's name? Jenny. Can you recall Jenny's full name? I do not know her full name. Can you recall what was the discussion between you and Jenny when both of your hang out at five foot way? We just chit chat. From the five foot way marked with Z in white colour as at photograph No. 2 of exhibit P.6, can you hear the discussion between your husband and "tiga nam nam" at the marking X? I could not. Can you tell the court further about the motorcycle? Continue from there. When I saw him taking the motorcycle, I asked him where he wanted to go using that motorcycle. He told me that he wanted to send "tiga nam nam" to the ferry because his friend was waiting across the river. Can you recall where was the motorcycle parked when your husband took it? At the place marked with Z in photograph No. 2. Is it correct for me to say that your husband took the motorcycle in front of you when you hang out at the five foot way at the marking Z? Yes. When your husband said that he wanted to send "tiga nam nam" to the ferry, where was "tiga nam nam" at this point in time? Already on the motorcycle. 23 | P a g e The time-lines of the Deceased’s whereabouts

Now, it is absolutely necessary to test PW19’s evidence against the evidence that was adduced by the Prosecution as to the Deceased’s whereabouts on 22 January 2017. Here, it is important to note that the Deceased’s sister (PW11) had testified that the Deceased came to see her at 7.00pm on 22 January

Then, the Deceased’s girlfriend (PW12) testified that the Deceased saw her at her home at 7.30pm. The Deceased told PW12 that he was going to Sibu town to meet a debtor. This statement by the Deceased implies that he may have gone to see a debtor which in all probability, was about a debt. But there was precious little that was unearthed during police investigation about the “debtor” or the “debt”.

We should mention here that the police recovered 2 handphones from the person of the Deceased, namely a Sony handphone (P19A) and Nokia handphone (P18B1) and Simcard (P19B2). It is puzzling that these handphones were not investigated for their contents to determine the calls made or received and any messages which may have been saved which may have shed the much needed light on the parties who may have had dealings with the Deceased, and perhaps, a motive for murder.

The Prosecution’s evidence is that the Deceased had met with PW4 at the Delta Seafood Cafe at 10.30pm, which is said to be on the other side of Sibu in relation to Hong Soon Cafe. There is no evidence as to who exactly the Deceased was referring to when he told PW12 that he was going to meet a debtor. 24 | P a g e

What is clear is that the evidence of PW19 (a key witness for the Prosecution) on the theory that the Deceased was “last seen alive” with the Appellant is patently and glaringly at variance with, and/or contradicted by the evidence of PW11 who saw the Deceased at 7.00pm, PW12 who saw the Deceased at 7.30pm and PW4 who was with the Deceased at 10.30pm on 22 January 2017. All of these meetings with the Deceased took place in different parts of Sibu town and well away from Hong Soon Cafe.

In so far as the quality of PW19’s evidence as to her sighting of the Deceased is concerned, it is necessary to note that she first said that she saw the Appellant with the Deceased, then she said she saw their heads as their bodies were blocked by the cars parked outside Hong Soon Cafe and, finally she said that she saw them only when she went to wash her hands at the sink located outside the Hong Soon Cafe.

In any case, what is significant is that despite the testimony of PW4, PW11 and PW12, there was no attempt whatsoever by the Prosecution to get PW19 to clarify her testimony that she saw the Deceased with the Appellant outside Hong Soon Cafe continuously from 6.00pm on 22 January 2017 until about 2.00am on 23 January 2017. It is significant to note that PW19 was quite unequivocal about her evidence in this regard. In fact, PW19 was asked about the timeline on more than one occasion during the Prosecution’s case and each time she said the same thing – that she saw the Deceased with the Appellant outside the Hong Soon Cafe from 6.00pm on 22 January 2017 until about 2.00am on 23 January 2017. 25 | P a g e

During cross examination it was put to PW19 that the person whom she may have seen riding pillion on the motorcycle was not the Deceased. She denied the suggestion that it was not the Deceased who was seen riding pillion on the motorcycle. Of course, it was not put to her that the person who was riding pillion was DW3 rather than the Deceased. The learned Judge opined that it was fatal for the Appellant not to put to PW19 that the person riding pillion was the Appellant’s uncle, DW3.

We turn next to the evidence as to the so-called discovery of P41A. PW21 is the maker of Exhibit P69. His evidence was as follows: EXAMINATION IN CHIEF OF PW21 - INSP BAHARUDDIN BIN SABANG At Sg. Maaw, can you tell the court what happened? While at Sg. Maaw at Mee Hock Cafe, I was together with Sjn. Pani, Sjn. Hafizul and Sjn. Buby guarded the accused. At that time, we were at one table inside Mee Hock Cafe while waiting for the personnel from F&R Department do the search. Can you recall whether any photographs were taken at Sg. Maaw on that day? Yes. ..... Can you tell the court why the officer and personnel from F&R Department were doing at Sg. Maaw? To search the thing that had been thrown by the accused. Anything found at Sg. Maaw? Mr JW: I object to the answer given. The witness said to search for "barang yang dibuang". Unless there is prior evidence that the accused had thrown something. Judge: Has anyone testified previously on the information given by the accused that led this witness and the police party to this location at Sg. Maaw. 26 | P a g e Deputy Public Prosecutor: At Sg. Maaw, nothing was found. so from there, this witness is the one who received the information. Mr JW: The learned DPP misunderstood. There is nothing to show that why they went to Sg. Maaw whether it was based on information given by the accused, there is none so far. At Sg. Maaw, there was nothing found. So, from Sg. Maaw, this is the witness who received the information that the prosecution is about to go further at Sg. Maaw itself that led to another place. Judge: So going to Sg. Maaw did not lead to any discovery under section 27. I supposed the information is only relevant and admissible if it leads to discovery. Since, there was no discovery at Sg. Maaw whatever the accused had said to any of the officers would have been inadmissible anyway. At Sg. Maaw anything was found? None. Can you tell the court further what happened over there? The accused had informed me that the said item he had thrown away at a different place. Then I asked the accused whether he can show it to me where is that place, then he informed me that he can show to me where the iron rod was thrown away. And then what happened after you were informed such by the accused? I recorded the information on one A4 paper and I signed on it and read it back to the accused then the accused put his signature on that paper. Who were with you when the accused gave you the information earlier? Sjn. Pani, Sjn. Bubi and Sjn. Hafizul. Did you inform ASP Irwan about the information given to you? Yes. Do you receive any instruction from ASP Irwan afterwards? ASP Irwan instructed me to lead the personnel to the location which the accused wanted to show since ASP Irwan had to go back to the CPS Sibu for another case. Who were with you going to the location which the accused wanted to show? I was together with the personnel, the accused, the F&R officers and ASP Fazirul. 27 | P a g e If I were to call Sjn. Pani, Sjn. Bubi and Sjn. Hafizul would you be able to identify them? Yes. Can you tell the court what happened from Sg. Maaw to the place that the accused person intended to show to you? I together with L/Cpl Sokongan Khairul, Sjn. Hafizul and Sjn. Bubi together with the accused used one car to go to the location showed by the accused. Later, I found out that that place is known as Jalan Hock Lee. I went out from the car and instructed the accused to alight from the car and the handcuff was opened. I then asked the accused to show the place where the iron rod had thrown away. The accused then walked to one bridge and pointed in the direction of the river. Then the F&R team going down and do the search. Then, anything was found by F&R team who went down to do the search into the river? Yes, the F& R team found one iron rod and then showed it to the accused and the accused nodded. Can you recall whether any photographs were taken at Jalan Hock Lee? Yes. Can you recall who took the photographs? Cpl Galvin. … Continuation of EIC Is P.69 the information you received from the accused and reduced into writing? Yes, this is the document that I wrote after I received the information from the accused. Then, we went there led by the accused himself where the iron rod was found. What was said by the accused thereby causing you to go to Jalan Hock Lee? He said "I can show the iron rod and where I threw it away". Earlier you mentioned about L/Cpl Khairul, if I were to call him, would you be able to identify him? Yes. DPP Humbly pray to call L/Cpl Khairul to be identified by this witness unless the defence agree the formal identification to be dispensed with? 28 | P a g e Mr JW I accept that this witness can identify L/Cpl Khairul, hence I agree to dispense with formal identification. Judge Noted. Identification to be dispensed with. Earlier you mentioned there were photographs taken at Jalan Hock Lee by Cpl Galvin. If I were to show you the photographs taken at Jalan Hock Lee, would you be able to identify those photographs? Yes. Humbly pray to show to this witness exhibit P.15 (1-6). Are those the photographs taken at Jalan Hock Lee? Yes. Could you please describe those photographs? Photograph No. 1 - shows the lane of the road; No. 2 - shows the accused pointed to the river where he threw the iron road: No. 3 shows the river; No. 4 shows the F&R team do the search; No. 5 & 6 show the F&R team found the iron rod. Please refer to P.15(2). Can you tell the court who is the person appeared in photograph P.15(2)? I together with the accused. the accused is in the orange shirt and I wore the police vast. Cross Examination of PW21 by Mr JW Am I correct to say that they were instructed to assist to search for weapon at Sg. Maaw river? To search something but I do not know what is that something. To search for something in the river? Yes. While the Fire and Rescue Department personnel were conducted the search, you brought the accused to Mee Hock Cafe where the accused was asked to wait inside the vehicle, agree? I disagree. Can you recall how long was the search carried out by Fire and Rescue team at Sg. Maaw river? Approximately how long. The search started at about 10.30 a.m. until the accused gave the information to me at about 2.50 p.m. I put it to you that you and your police personnel had threaten the accused asking him to co-operate with you to tell you the whereabouts of the weapon i.e. the iron rod. I disagree. 29 | P a g e I also put it to you that you promised the accused if he co-operate with you, you will try to help him. I also put it to you that when the Fire and Rescue team personnel could not find anything from the river, you were very angry with the accused. I also put it to you that you told the accused had the weapon been thrown into Sg. Maaw river, the Fire and Rescue team personnel could have found it. I put it to you also that you told the accused the iron rod could have been thrown into the river at Jalan Hock Lee. And I put it to you that you were the one who insisted the accused to bring you to Jalan Hock Lee river. On exhibit P.69 those wordings read as "saya boleh tunjuk mana tempat itu besi saya buang", these wordings actually were your own words. I put it to you that the accused had never said these words. He did. Having recorded those words in P.69, you forced the accused to sign on it, agree? I put it to you that ASP Fazirul was never present at the place where the search of the iron rod was conducted by the Fire and Rescue team personnel. ASP Fazirul was present at Jalan Hock Lee. Refer witness to photograph P.14(4). I put it to you that this photograph was taken after the search by the Fire and Rescue team personnel commenced the search. It was taken before the search. Refer witness to photograph P.15(2). This photograph, I put it to you that it was taken when the Fire and Rescue team commenced the search at Jalan Hock Lee. It was taken before the search. 30 | P a g e Our decision

Before us counsel for the Appellant relied on 2 main grounds. First, the issue of the Deceased being last seen together with the Appellant at around 1-2am on 23 January 2017 and secondly, the discovery of the alleged murder weapon (the iron rod) (Exhibit P41A) at Sg. Maaw, Sibu (s.27 Evidence Act 1950). On the first issue the Prosecution relied on the “last seen alive” with the Appellant theory to tie the Appellant to the offence of murder. At paragraph [50] of the Grounds of Judgment the learned Judge concluded, “Thus, the evidence led by the prosecution had established that the Deceased was last seen alive in the company of the Appellant”. The law on this topic is quite well settled and the relevant principle is as expounded by the Indian Supreme Court in Ashok v. The State of Maharashtra [2015] 4 SCC 393. At paragraph [50] the learned Judge had set out the legal principle as established in Ashok’s case. [50] Thus, the evidence led by the prosecution had established that the deceased was last seen alive in the company of the accused. The Supreme Court of India held in Ashok v. The State of Maharashtra [2015] 4 SCC 393 that last seen together itself is not a conclusive proof of guilt but along with other circumstances surrounding the incident like the recovery of weapon from the accused may lead to a presumption of guilt. The Court stated:- "From the study of above stated judgments and many others delivered by this Court over a period of years, the rule can be summarized as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of Indian Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused etc., non-explanation of death of the deceased, may lead to a presumption of guilt." 31 | P a g e

As stated earlier, the Prosecution relied heavily and exclusively on PW19’s evidence to establish the “last seen alive” theory. She said that the Deceased was at Hong Soon Cafe from around 5 or 6pm on 22 January 2017 until around 1 or 2am 23 January 2017 when she saw the Deceased getting onto the Appellant’s motorcycle. PW19’s evidence was that the Deceased was at the Hong Soon Cafe the entire evening/night. But it is also the Prosecution’s evidence through PW11 (Deceased’s sister) that the Deceased saw her at 7pm. Next is PW12’s evidence. PW12 is the Deceased’s girlfriend. She said that the Deceased saw her at 7.30pm. Then there is PW4’s (Khu Ing Hock’s) evidence that he had a drink with the Deceased at Delta Cafe and he (PW4) left at 10.30pm. PW4 said that Deceased’s car was parked at the Delta Seafood Cafe and he left at 10.30pm. There is no evidence as to where the Deceased went after leaving Delta Seafood Cafe. Indeed, there is no evidence as to what time the Deceased actually left Delta Seafood Cafe.

It is material that PW19’s friend/neighbour, Jenny who was said to be with PW19 throughout the evening/night at the verandah, did not testify. If she had testified, she may have corroborated PW19’s evidence in material respects. In particular Jenny would (or should) have been able perhaps to explain whether PW19’s evidence was credible when she said that the Deceased was with the Appellant from 5pm or 6pm on 22 January 2017 until 2.00am on 23 January 2017. 32 | P a g e

In the circumstances, we think that an adverse inference should be drawn (s.114 (g) Evidence Act 1950) by reason of the non-calling of Jenny as a witness. As such, had Jenny testified, it is very likely that she would have given evidence which contradicted PW19’s evidence. At any rate, even without Jenny’s evidence, PW19’s evidence by itself, was in stark contradiction to the evidence of PW4, PW11 and PW12.

At this juncture, it is also important to highlight that although PW19 referred to the Deceased as “Tiga Nam Nam” there is no evidence to establish that the person whom she described as “Tiga Nam Nam” was in fact the Deceased. Here, we note that the Prosecution did not show any, or any recent photograph of the Deceased (when he was alive) to establish that the person whom she saw sitting outside the Hong Soon Cafe and purportedly speaking to the Appellant and later riding pillion on the motorcycle, was in fact the Deceased. But the learned Judge nevertheless ruled that the person referred to as “Tiga Nam Nam” was indeed the Deceased. In this regard the learned Judge said: [49] The question arising is whether the person that PW19 had recognized as Tiga Nam Nam, was the deceased, Tiong Kah Hock. As stated earlier, PW19 had seen the car parked at Hong Soon Cafe that night she saw Tiga Nam Nam with the accused there. The car was still parked at its place when the accused and Tiga Nam Nam left on the motorcycle. It remained at that place during the disappearance of the deceased and was only removed by PW4 on 25.01.2017. The irresistible inference is that the Tiga Nam Nam seen and recognized by PW19 with the accused on the night of 22.01.2017 until the wee hours of the next day was the person that had driven and parked the BMW X6 car next to Hong Soon Cafe. From the combined evidence of PW4 and PW12, and as stated earlier, their evidence on this was neither challenged nor contradicted, the BMW X6 car was used by the deceased and was driven by him on the night in question. The compelling and irresistible conclusion is that the Tiga Nam Nam seen and described by PW19 was the deceased Tiong Kah Hock as stated in the charge. [50] Thus, the evidence led by the prosecution had established that the deceased was last seen alive in the company of the accused. 33 | P a g e

Having regard to all the circumstances, we fail to see how the learned Judge could have come to such a conclusion, when there was no positive photographic or any other identification whatsoever of the Deceased by PW19. Yet further and critically, the Prosecution did not get PW19 to explain the discrepancy on the time-lines i.e. when she said that the Deceased was with Appellant from 6.00 pm (22 January 2017) until 1 or 2 am (23 January 2017) whereas PW11 said that the Deceased saw her at 7pm, PW12 said he came to her house at 7.30pm and said that he was going to Sibu town to meet a debtor and at 10.30pm, the Deceased was with PW4 at the Delta Seafood Cafe, which is said to be on the other side of Sibu town.

Quite obviously, there is a patent contradiction in terms of the time-lines as narrated by PW19. She testified as part of the Prosecution’s case that the Deceased was at the Hong Soon Cafe from about 5.00 or 6.00pm on 22 January 2017 until 1.00 or 2.00am, 23 January 2017. On the other hand, it was also established, as part of the Prosecution’s case that the Deceased visited his sister, PW11 at 7.00pm on 22 January 2017 (Sunday) at No. 15C, Lorong 21, Jalan Teku, Sibu. The Deceased told her that he would be going to see his girlfriend, PW12. Next, PW12 said that the Deceased visited her at 7.30pm at Jalan Ing Kwong (Sibu).

The Deceased told PW12 that he was going to Sibu town to see an unnamed debtor. Then, PW4, Khu Ing Hock said he met the Deceased at Delta Seafood Cafe at 10.30pm. PW19 was not asked to explain this glaring contradiction. The Prosecution conceded that there was a contradiction in PW19’s evidence. However, the Deputy Public Prosecutor brushed it off and at the end of the Prosecution’s case, submitted to the learned Judge as follows: 34 | P a g e Perhaps it could be seen that a bit of contradiction but the prosecution humbly submit that that contradiction is not that fatal because we cannot assume all the witnesses to remember every detail. And the most important thing is, it is the evidence of PW19 in the morning of Jan 23, 2017 the deceased was seen alighted the motorcycle together with the accused person. This is the most important evidence.

And ultimately, the learned Judge ruled that there was no serious contradiction. This is because, the learned Judge agreed with and virtually adopted the Prosecution’s stance and concluded that there was no serious discrepancy and accepted PW19’s evidence. The learned Judge concluded that PW19 may have been “mistaken” as to the time when she saw the Deceased and that it was not improbable for the Deceased to have gone to PW11’s house, PW12’s house and to the Delta Seafood Cafe (until 10.30pm). Despite the evidence of PW4, PW11 and PW12, which openly contradicted PW19’s evidence, the learned Judge concluded that there no contradiction in the evidence of PW19 with regard to the whereabouts of the Deceased on 22 January 2017.

This is how the learned Judge approached the issue on the issue of discrepancy in PW19’s evidence: [40] Mr. Jacob Wong on behalf of the accused, submitted that there were serious discrepancies in the evidence of PW4, PW11, PW12 and PW19 on the whereabouts of the deceased on 22.01.2017. According to him, this led to two sets of evidence, the testimony of PW19 against the testimony of PW4, PW11 and PW12. [41] Counsel said that based on the evidence of PW19, she saw the deceased with the accused at Hong Soon Cafe from around 5 to 6 p.m. of 22.01.2017 until 1 or 2 a.m. the next morning. According to PW11 the deceased visited her at her house at about 7:00 p.m. and then according to PW12, he was with her at her house thirty minutes later. And going by PW4's evidence, the deceased was with him that evening at the Delta Seafood area until about 10:30 p.m. The deceased's BMW X6 car was at that place as well. Therefore, learned counsel contended, it was not possible for PW19 to have seen the deceased with the accused at Hong Soon Cafe on the night of 22.01.2017. 35 | P a g e [42] I do not agree that there is serious discrepancy or conflict between the evidence of PW19 and that of PW11 and PW12. As will be recalled, PW19 had stated when cross-examined that when she went out of her room after 6 p.m. to talk to her friend, the friends who were with the accused at the coffee shop were persons that she could not recognize. This would mean that the deceased (whom she recognized as Tiga Nam Nam) was not there yet at that time. She then testified of having cooked dinner in her rented room after 6 and having dinner with the children at about 7 p.m. It was only at about 9:00 p.m. that she had come out of her room and continued talking to her friend outside. By that time the accused's friends who were there earlier were no longer around. In the night, it was only Tiga Nam Nam and the accused who were sitting at the coffee shop and by themselves. Hence, there was no discrepancy between her evidence and that of PW11 and PW12 when they stated that the deceased was with them between 7 to 7:30 p.m. [43] As for PW4's evidence, it placed the deceased and his BMW X6 car at about 10:30 p.m. that night at the Delta Food area, which was a different place. I agree that there is a discrepancy here with the evidence of PW19. The deceased and his BMW X6 could not have been at 2 different places at about 10:30 p.m. that night. I accepted that PW19 was therefore mistaken whenever she had mentioned in her evidence that Tiga Nam Nam as well as the BMW X6 car were at Hong Soon Cafe at about 10:30 p.m. It will be noted that PW19 was making a rough estimation of the time. In my view, she had been mistaken about the time she came out of her rented room after dinner with her children and then seeing Tiga Nam Nam with her husband at the coffee shop and also the BMW X6 parked there when she said that it was at about 9:00 p.m. or thereabouts. However, I did not detect any attempt on her part to deliberately lie on this matter as the defence had alleged. It was more of a lapse of memory due to passage of time. [44] That said, her evidence that she had seen Tiga Nam Nam together with the accused at Hong Soon Cafe that night until about 1:00 to 2:00 a.m. the next morning whenever she was at the sink outside the "Kedai Makan" as shown in P70 where she went to wash her hands regularly, remained unshaken. What is more, the crucial part of her evidence that, between 1 to 2 a.m. she had seen the accused starting the motorcycle and Tiga Nam Nam getting on the motorcycle, and that they left the place together was not shaken and remained intact. 36 | P a g e [45] In my view, the evidence of PW4 that he had parted company with the deceased at the Delta Seafood Cafe at about 10:30 p.m. means that it was not improbable or implausible for the deceased to have been seen at Hong Soon Cafe by PW19 after 10:30 p.m. The defence said that there was no evidence adduced as to when the deceased had left Delta Seafood Cafe or where he went afterwards. But the fact of the matter is PW19 had testified to having seen him with the accused that same night well into midnight until 1:00 to 2:00 a.m. the next morning at Hong Soon Cafe. Obviously, for the deceased to have been seen by PW19 at Hong Soon Cafe after 10:30 p.m., he must have gone there after PW4 had left him at Delta Seafood Cafe.

It is clear that PW19’s evidence was contradicted by the evidence of the other Prosecution witnesses, PW4, PW11 and PW12. There was no effort made by the Prosecution to clarify the discrepancy as to the timelines as mentioned above. The learned Judge believed PW19’s evidence as to what she purportedly saw at 1-2am on 23 January 2017 although there were discrepancies in her evidence on the timelines as against the evidence by the other Prosecution witnesses. The learned Judge, on her own volition appears to have provided the requisite explanation – that PW19 had been “mistaken about the time” and that it was “more of a lapse of memory due to passage of time”. Rather unfortunately, the learned Judge did not rely on any proven evidence but merely endorsed the DPP’s theory as to why the time-lines did not match. This is a glaring misdirection which rendered the learned Judge’s analysis and conclusion as to the guilt of the Appellant to be egregiously “unsafe”. 37 | P a g e

P41A – The Iron pipe We turn now to the discovery of the iron pipe (P41) which is said to be the murder weapon. This is the Prosecution’s second strand of circumstantial evidence. The Prosecution’s case was that the Appellant had led them to the alleged murder weapon. Thus, the Prosecution sought to introduce the alleged murder weapon into evidence under s.27 of the Evidence Act 1950. Section 27 reads 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.

In Pang Chee Meng v Public Prosecutor [1992] 1 MLJ 137 (SC) Lord President Abdul Hamid Omar (as he then was) speaking for the Supreme Court said (p.140-141) that the Courts must be vigilant to detect any abuse of s.27 of the Evidence Act 1950. This is how Lord President administered the caution: The rationale behind this section revolves on the basis that if a fact is actually discovered in consequence of information given by the accused in custody some degree of guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence overriding the criminal procedure code and other written laws. The effect of interplay between this section and other provisions of law was clearly enunciated in the Supreme Court decision Wai Chan Leong v PP 1 where it was held that 'The word "information" in s 27, unlike a statement, includes knowledge derived by the person informed by the accused as well as the means taken to impart that knowledge.' While this section, an exception to other laws in the particular respect, is very useful to the detection of crimes, the founding fathers of jurisprudential textbooks on the Indian Evidence Act which is in pari materia with our Ordinance, have emphasized on the question of discovery that 'Section 27' has frequently been misused by the police and the courts should be vigilant about the circumvention of its provisions. 38 | P a g e The protection afforded by the wholesome provisions of ss 25 and 26 may sometimes be whittled down by the police by their ingenuity to get the information given by the accused recorded in the case diary in a way it would appear that it led to the discovery of some facts although the police might have made such discovery from other sources. We are not suggesting that the practice by the local police is the same as in India, nevertheless, we are firmly of the view that in invoking s 27, the courts should be very vigilant to ensure the credibility of evidence by the police personnel in respect of this section, which is so vulnerable to abuse.

The Appellant’s position is that he never said “saya boleh tunjuk mana tempat itu besi saya buang” which appears in Exhibit P69. Exhibit P69 was prepared by PW21. Exhibit P69 is reproduced herein for ease of reference. 39 | P a g e

It was put to PW21 that those were his words and not the Appellant’s words. PW21 denied the suggestion that was made during cross-examination. The other police personnel who were present when Exhibit P69 was prepared and allegedly signed by the Appellant at the Mee Hock Cafe, were D/Sgn. Pani, D/Sgn. Hafizul and Sgn. Bubi. The document (P69) was prepared by PW21. PW21 testified that the Appellant initially said that he would show the police the spot in the river where he had thrown the piece of wood. The Appellant is alleged to have led the police to a spot at the river. The personnel from F&R spent hours looking for the elusive piece of wood, but their search turned up nothing.

It seems that whilst the Appellant was being held at the Mee Hock Cafe, he told PW21 that he would show where he had thrown the iron pipe. That, according to PW21 was the genesis of P69. The Appellant said that the police asked him to sign documents at the police station. Thus, it is obvious that the Appellant had challenged the prosecution’s version that the Appellant had uttered the words “saya boleh tunjuk mana tempat itu besi saya buang” to PW21 at Mee Hock Cafe. Counsel for the Appellant had raised objection to the introduction of evidence relating to discovery of Exhibit P69 and Exhibit P41A. Thus, the Prosecution had adequate notice that this was a problematic issue. It was in the circumstances wholly incumbent upon the Prosecution to eliminate the basis of the objection by calling D/Sgn. Pani, D/Sgn. Hafizul and Sgn. Bubi to corroborate PW21’s testimony that the Appellant uttered the words voluntarily and signed Exhibit P69 in Mee Hock Cafe and then led them to the river where he pointed to where P41A was thrown. 40 | P a g e

The learned Judge dealt with the issue of so-called discovery of Exhibit P41A per the following paragraphs of her judgment: [51] This leads us to the next circumstance or piece of evidence adduced by the prosecution. [52] Insp Baharuddin bin Sabang (PW21) testified that on 01.02.2017 he and a team of police personnel escorted the accused to an area at Sg Maaw to conduct a search of an iron rod thrown away by the accused. Whilst the team from the Fire & Rescue Department were conducting a search in the river, PW21 together with Sgt Pani, Sgt Hafizul and Sgt Buby guarded the accused at a table at a coffee shop called Mee Hock Cafe. He identified the place at Sg Maaw that they had visited that day as shown in the photographs exhibit P. 14 (1-10). Mee Hock Cafe is the building with the blue roof as shown in P.14 (4). He said that the accused then told him that he had thrown the iron rod at a different place and that he could show him that place. PW21 recorded the information on a piece of A4 paper and he read it back to the accused. They both signed on the piece of paper tendered and marked as exhibit P.69. The information given by the accused as recorded by PW21 in P.69 reads: "Saya boleh tunjuk mana tempat itu besi saya buang". Translated it means, "I can show you the place where I had thrown away the iron rod". [53] After the accused had given the information, PW21 and the three police officers together with the accused used one car to go to the location showed by the accused to them at Jalan Hock Lee. ASP Fazirul, the investigating officer and the F & R officers also followed them. Upon arrival at the place at Jalan Hock Lee, PW21 asked the accused to get out of the car and his handcuffs were opened. PW21 then asked the accused to show the place where he had thrown away the iron rod. The accused then walked over to a bridge and pointed in the direction of the river. Thereafter, the Fire & Rescue Department officers went into the river to conduct a search in the presence of the accused and witnessed by PW21. They found one iron rod in the river. The F & R team then showed the iron rod to the accused. The latter nodded his head. [54] PW21 testified further that photographs were taken at Jalan Hock Lee and during the search in the river. The photograph exhibit P 15 (2) shows the accused pointing towards the river to show where he had thrown away the iron rod. The photograph P 15 (4) shows the F & R team conducting the search in the river whereas P 15 (5) and (6) show them finding the iron rod. The officer holding the iron rod in the photographs is Edwin ak Jonani. PW21 seized the iron rod from him. PW21 identified the iron rod which was tendered as exhibit P. 41A as the one that he seized from Edwin. 41 | P a g e [55] Now, Edwin was not called to testify. Learned counsel contended that he was an important witness and should have been called to testify on the purported finding of the iron rod P. 41A, namely, where it was recovered and who actually found it. The failure to call him as a witness to corroborate the evidence of PW21 cast doubt on the actual recovery of P. 41A. Furthermore, merely offering him as a witness to avoid drawing adverse inference under s. 114(g) of the Evidence Act did not negate the doubt that had been created. [56] I do not agree with the defence that the failure to call Edwin had created a doubt in the fact of the recovery or finding of P. 41A in the river at the bridge at Jalan Hock Lee. It is trite that it is only when the failure to call a witness creates a gap or doubt in the narrative of the prosecution's case that the drawing of an adverse inference under section 114 (g) EA would be warranted. PW21's evidence-in-chief that the F & R team went into the river, conducted the search and then found P. 41A in the presence of the accused who nodded his head in acknowledgment was never specifically challenged during cross-examination. Similarly, his evidence that the photograph P 15 (4) shows the F & R team conducting the search in the river whereas P 15 (5) and

show Edwin holding the iron rod P. 41A which they had found in the river was not seriously challenged. That being the case, there was no gap or doubt raised in the prosecution's narrative of the discovery of the iron rod. Moreover, there was no necessity to call Edwin to Court to merely repeat the same evidence as that given by PW21 on the recovery and finding of P. 41A by the F & R team. Thus, the failure to call Edwin to testify was not fatal to the prosecution's case. …. [60] Reverting to the facts of the present case, it was the accused that had given the information "Saya boleh tunjuk mana tempat itu besi saya buang" which PW21 had recorded in P.69. The accused also had led PW21 and his party to the bridge at Jalan Hock Lee where he pointed in the direction of the river to indicate the place where he had thrown away the iron rod. Based on the information from the accused, the F & R team searched the river bed and found the iron rod which is exh. P41A. Obviously, the iron rod was hidden from and its location unknown to PW21 and the police party. In other words, if the accused had not pointed in the direction of the river to PW21, the F & R team would not have been able to find and retrieve the iron rod which was handed over to PW21. [61] Based on the foregoing authorities, to my mind, the accused's statement that he could show the place where he had thrown away the iron rod and his conduct in leading the police party to Jalan Hock Lee, walking to the bridge and pointing in the direction of the river to indicate where he had thrown away the iron rod, amounted to information which related distinctly to the discovery of a fact and was admissible under s. 27 Evidence Act. 42 | P a g e

In our view, in light of the challenge that was raised vis-à-vis the contents of Exhibit P69, it was incumbent upon the Prosecution to have called all those who were present when the document was prepared and allegedly signed at the Mee Hock Cafe so as to neutralise and repudiate the Appellant’s assertion that he did not utter the words “saya boleh tunjuk mana tempat itu besi saya buang” to PW21 at Mee Hock Cafe. We are therefore rather troubled that those who were present at the Mee Hock Cafe and said to be guarding the Appellant i.e. D/Sgn. Pani, D/Sgn. Hafizul and D/Sgn. Bubi were not called to corroborate PW21’s evidence that he wrote the words in Exhibit P69 “saya boleh tunjuk mana tempat itu besi saya buang” which PW21 claimed were uttered by the Appellant. These police personnel could have demolished the Appellant’s denial that he uttered the words which were reproduced in Exhibit

No doubt these personnel were identified at the trial, but that is not enough. At the close of the Prosecution’s case, D/Sgn. Pani was offered to the defence (Appellant). But that too is not sufficient as the Prosecution is at all times under a duty to prove its case by credible and compelling evidence. Thus, it was necessary for the Prosecution to have called D/Sgn. Pani, D/Sgn. Hafizul and D/Sgn. Bubi to testify. But this was not done.

In the circumstances, we are of the view that the learned Judge had misdirected herself in admitting and/or in giving any weight to Exhibit P69 which incriminated the Appellant. In our view, Exhibit P69 ought to have been rejected as it was not been proven that the incriminating words were in fact uttered or voluntarily uttered by the Appellant. We are impelled to the view that Exhibit P69 was created under circumstances which would not vouch for its credibility. 43 | P a g e

In any event, even if Exhibit P69 is to be accepted, the Prosecution still bears the burden that it was the Appellant who committed the act of murder against the Deceased. In this regard, the Appellant had maintained that he did not murder the Deceased by using the iron rod. At most, the Prosecution may have established that the Appellant was at the location of Sg. Maaw and pointed his finger at the river where the iron rod was retrieved. But this of itself does not prove that it was the Appellant who had committed the offence of murder.

Of course, the Prosecution could rely on s.8 Evidence Act 1950 to adduce evidence of the Appellant pointing his finger at the river from where the iron rod was retrieved. But that only proves “conduct” but that is as far as the Prosecution can go. It does not add up to, or ipso facto lead to the conclusion that the Appellant had committed the offence of murder.

We should add that there was also undisputed scientific evidence that the soil samples taken from the Appellant’s motorcycle did not match the soil at the place where the decomposed body of the Deceased was found. This was undoubtedly evidence which was favourable to the Appellant. But the learned Judge did not deal with the absence of soil to connect the Appellant’s motorcycle to the place where the body was found. This is yet another flaw or misdirection on the part of the learned Judge which vitiates the conviction.

In the context of the discovery of the alleged murder weapon (Exhibit P41A), it is of course trite that the Prosecution must strictly prove the information that was given by the Appellant and which then led to the discovery of the thing which was said to be incriminating. Thus, it was submitted for the Appellant (rightly in our view) that discovery has to be proven according to the stringent requirements of the criminal law. 44 | P a g e

In this regard, the point is covered in the following passage from the judgment of Ong Hock Thye CJ in the Federal Court’s decision in Sia Soon Suan v. P.P. [1966], 1 MLJ 116 (at p.118): “…the requirements of strict proof in a criminal case cannot be relaxed to bridge any material gap in the prosecution evidence. Irrespective of whether this court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else. This is axiomatic. The directions that we give a jury are no less to be hearkened to by ourselves”.

Having regard to the matters adumbrated above, we are compelled to state here that the conviction of the Appellant in the appeal before us is plainly and patently unsafe. This is because the conviction was predicated on evidence which was not proven in accordance with law. In Krishnan v Public Prosecutor [1987] 1 MLJ 292 (Supreme Court) at 295-296 Wan Suleiman SCJ explained that the guilt of an accused person must be proved in accordance with or in a manner required by law. It is one of the most basic rules of justice that however heinous a crime a person is accused of, whatever the rank of the person who testifies against him, he can only be convicted on evidence produced according to the stringent requirements of the law. It cannot be questioned that the offence of trafficking is a very serious one, the gravity of which is reflected in the sentence, in this case the sentence of death. But it does not mean that a person accused of one of the most s erious crimes known to our law is not entitled to equal protection before the law and one of those items of protection to which he is entitled is that his guilt must be proved in accordance with or in a manner required by law. Anything less will not be enough. 45 | P a g e

Next, it is necessary to refer to PP v. Mohd Radzi Bin Abu Bakar [2006] 1 CLJ 457, [2005] 6 MLJ 393 (FC), where the Federal Court (per the following paragraphs of the judgment), laid down the approach that must be taken by the trial court in determining whether the prosecution had established a prima facie case: [12] After the amendments to ss. 173(f) and 180 of the CPC, the statutory test has been altered. What is required of a Subordinate Court and the High Court under the amended sections is to call for the defence when it is satisfied that a prima facie case has been made out at the close of the prosecution case. This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call on the accused to enter upon his or her defence. It involves an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution evidence admits of two or more inferences, one of which is in the accused's favour, then it is the duty of the court to draw the inference that is favourable to the accused. See, Tai Chai Keh v. Public Prosecutor [1948] CLJU 122; [1948] 1 LNS 122; [1948-49] MLJ Supp 105; Public Prosecutor v. Kasmin bin Soeb [1974] CLJU 116; [1974] 1 LNS 116; [1974] 1 MLJ 230. If the court, upon a maximum evaluation of the evidence placed before it at the close of the prosecution case, comes to the conclusion that a prima facie case has not been made out, it should acquit the accused. If, on the other hand, the court after conducting a maximum evaluation of the evidence comes to the conclusion that a prima facie case has been made out, it must call for the defence. If the accused then elects to remain silent, the court must proceed to convict him. It is not open to the court to then re-assess the evidence and to determine whether the prosecution had established its case beyond a reasonable doubt. The absence of any evidence from the accused that casts a reasonable doubt on the prosecution's case renders the prima facie case one that is established beyond a reasonable doubt. Put shortly, what the trial court is obliged to do under ss. 173(f) and 180 of the CPC is to ask itself the question: If the accused elects to remain silent, as he is perfectly entitled to do, am I prepared to convict him on the evidence now before me? See, Dato' Mokhtar bin Hashim & Anor v. Public Prosecutor [1983] 2 CLJ 10; [1983] CLJ 101 (Rep); [1983] 2 MLJ 232. If the answer to that question is in the affirmative, then the defence must be called. And if the accused remains silent, he must be convicted. If the answer is in the negative, then the accused must be acquitted. 46 | P a g e

At paragraph [13] of the same judgment the Federal Court referred to Augustine Paul J’s judgment in Public Prosecutor v. Dato' Seri Anwar bin Ibrahim (No 3) [1999] 2 CLJ 215, where a prima facie case was described in the following terms: A prima facie case arises when the evidence in favour of a party is sufficiently strong for the opposing party to be called on to answer. The evidence adduced must be such that it can be overthrown only by rebutting evidence by the other side. Taken in its totality, the force of the evidence must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. As this exercise cannot be postponed to the end of the trial, a maximum evaluation of the credibility of witnesses must be done at the close of the case for the prosecution before the court can rule that a prima facie case has been made out in order to call for the defence.

In PP v Saimin & Ors [1971] 2 MLJ 16 (HC) Sharma J. explained the duty that is cast upon the prosecution in the following words. It is the duty of the prosecution to prove the charge against the accused beyond all reasonable doubt and the court is not entitled merely for the sake of the joy of asking for an explanation or the gratification of knowing what the accused have got to say about the prosecution evidence to rule that there is a case for the accused to answer. The proof of a case against the accused depends for its support not upon the absence or weakness of the explanation on his part but on the positive affirmative evidence of his guilt given by the prosecution. Numerous rules have from time to time been suggested by the courts when dealing with the question of the guilt or innocence of the accused. The following principles are not only sound but well recognised in practice:–

The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecution;

The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused;

In matters of doubt it is safer to acquit than to condemn. 47 | P a g e A conviction cannot be sustained even if the court is satisfied that the prosecution story "may be true" unless and until it is found that the prosecution story "must be true." The burden of proof remains on the prosecution throughout the trial. If the learned magistrate was not satisfied with the case of the prosecution it was his duty to acquit and discharge the accused at the close of the prosecution case. The falsity of the defence does not relieve the prosecution from proving the prosecution case beyond reasonable doubt. The burden of proving guilt in a criminal charge is always on the prosecution except in certain cases with which we are not concerned here.

In the same page Justice Sharma gave a lucid definition of what constitutes “reasonable doubt”. His definition of reasonable doubt is highly instructive, illuminating and has withstood the test of time. This is how the Learned Judge defined reasonable doubt; "It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge." It has again been said that " 'reasonable doubt' is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If under your oaths and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you say to yourself I doubt if he is guilty, then it is a reasonable doubt. It is a doubt which settles in your judgment and finds a resting place there." Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence.

Clearly, in the present case, the Prosecution’s case was shaky at its very foundation. We find that the circumstantial evidence here was not sufficient to convict the Appellant. It was inherently unsafe to convict the Appellant on the charge of murder. In reaching our conclusion as to the points in contention, we are reminded of the salutary advice by Chief Justice Pike (CJ-Borneo) in Chang Kim Siong v. Public Prosecutor [1968] 1 MLJ 36 (FC) (a murder case), where he said (p.36 MLJ): 48 | P a g e “The onus on the prosecution, where the evidence relied on is circumstantial, is a very heavy one and that the evidence must point irresistibly to the conclusion of the guilt of the accused. If there are gaps in it, then it is not sufficient.”

In that case the issue was with regard to the evidence of identification which was improperly conducted. What had happened is that the prosecution’s witness had the opportunity to see the accused beforehand and the evidence of subsequent identification at the parade by him was vitiated. The Federal Court went on to hold that the other evidence being of a circumstantial nature, it could not be said that such evidence pointed irresistibly to the guilt of the accused. The Federal Court held that the conviction for murder was unsafe. The Federal Court also directed that suitable action be taken by the Commissioner of Police against the police officer responsible for the scandalous behaviour in taking a witness to the police station so that he could identify an accused person before an identification parade was held. In the present case, there was no evidence of any animosity between the Deceased and the Appellant. There was no motive. It is relevant to ask - Did the police analyze the handphones that were recovered from the Deceased’s body to establish any possible link between the Deceased and the Appellant or to establish the identity of the debtor that the Deceased was going to meet?

It ought to have been clear, as night follows day, that even at the Prosecution stage, the evidence was unsatisfactory in that PW19’s evidence clashed with the evidence of PW4, PW11 and PW12 as regards the whereabouts of the Deceased from around 7.00pm to 10.30pm on 22 January 2017. At 7.00pm, the Deceased told his girlfriend (PW12) that he was going to meet a debtor. 49 | P a g e

The only evidence that was adduced was that the Deceased was with PW4 at Delta Seafood at 10.30pm. What was the nature of their meeting? Here, it is important to note that PW4 was someone who had been acquainted with the Deceased just three months prior to the death of the Deceased. Did the police investigate P4 to see if there was any business or moneylending transaction between the Deceased and P4?

The learned Judge concluded that the person whom PW19 described as “Tiga Nam Nam” was in fact the Deceased. But there is no evidence at all as to identify of the person who was called “Tiga Nam Nam”. As stated earlier, during the trial, PW19 was not shown any photograph of the Deceased (whilst he was alive) to make a positive identification on who exactly she was referring to.

The learned Judge ought to have given room for the possibility that PW19 was mistaken. The other aspect of the evidence which ought to have been considered and which was germane to the quality of PW19’s identification of the individuals whom she said she saw at about 2.00am on 23 January 2017 is whether there was sufficient lighting around Hong Soon Cafe. PW19 said that there was a street light. This was disputed by the Appellant. PW20 said that during the course of his investigations, he had gone to the location at Hong Soon Cafe to check for the lighting. He said that he went there a few days after the Appellant was arrested and that he had entered the visit in his diary. During cross-examination he was asked whether he wished to refer to his investigating diary. He declined to do so. It was put to him that he did not go to the Hong Soon Cafe. He denied it. The learned Judge ruled that PW20 could not be compelled to refer to his investigation diary. PW20’s evidence on this point was as follows: 50 | P a g e Did you go to the location as in exhibit P.6(2)? Yes. Did you go to the Hong Soon Cafe? Yes. Can you tell the court whether Hong Soon Cafe was equipped with lighting or not? I visited again to the location at 12 midnight. I found the surrounding was bright with the street lamps and the lighting of Hong Soon Cafe was on during the night time. .... Go back to the street lighting. Was the street lighting functioning at the time when you said you have visited Hong Soon Cafe at 12 midnight? Yes. I put it to you that actually the street lighting was not functioning at all at the time when the wife of the accused was seated at the five foot way in front of his rented room. Do you have any knowledge of this? I do not know. How many times you visited Hong Soon Cafe? 4 times. Now you mentioned at one time you visited at 12 midnight, can you recall? Yes. Was it recorded in your investigation diary that you have made such a visit at 12 midnight to Hong Soon Cafe? Yes. Can you show the Court the entry of your visit during that time? In my investigation diary. Can you recall the date of your visit? I can't remember. Would you like to refer to your ID? Officer, you are at liberty to refer to your ID. I don't want to refer to my ID. ….. 51 | P a g e Mr JW: I do not know why the officer refused to refer to the ID for confirmation that he had visited the scene at 12 midnight and is reflected in his ID. The question put to this witness is in relation to the date when he visited the scene at 12 midnight. To me, as long as this witness can remember he does visit the scene more or less at the same time when PW19 (the wife) witnessed the accused and the deceased was together that is suffice enough. Judge: Can you address the point raised by the defence as it to compel to refresh his memory by referring to his ID. The witness is allowed to refresh their memory by referring to their ID. Nevertheless, the defence cannot compel the witness to refresh their memory by referring to their ID. Judge: I know of no rule of procedure or evidence for the other party to compel the witness to refresh his memory by reference to a document which the defence has no right of access. Mr JW: Stand guided. Can you recall to the best of your memory when did you make the visit to Hong Soon Cafe at 12 midnight? It was within the first remand period of the accused. I put it to you that you have never visited Hong Soon Cafe at that time i.e. 12 midnight. I disagree.

From the above, it is clear that PW20’s evidence on the lighting issue is far from satisfactory. PW20’s response – refusal to refer to his investigation diary was such that it did not inspire any confidence as to the credibility of his assertion that he had gone to Hong Soon Cafe around midnight and had confirmed that there was a functional street lamp and that there was adequate lighting. The fact that PW20 declined the invitation to refer to his investigation diary to confirm the date and time of his alleged visit to Hong Soon Cafe was a red-flag. Yet the learned Judge brushed it off and ruled that the witness could not be compelled to refer to his investigation diary. The fact that the witness did not want to refer to his investigation diary could mean that he either did not record his visit in the diary, or worse, he did not even visit the place at all. 52 | P a g e

Either way, we think that in the circumstances, PW20’s evidence on the issue of lighting was of no value and should not have been utilized to bolster the credibility of PW19’s so-called identification of the Appellant and the person referred to as “Tiga Nam Nam”.

In our view, the evidence that was adduced by the Prosecution was such that Judge ought to have ruled that a prima facie case had not been established and the Appellant ought not to have been called to enter his defence to the charge of murder under s.302 of the Penal Code. The learned Judge ought to have held that PW19’s evidence was so plainly and patently contradicted by the earlier Prosecution witnesses (PW4, PW11 and PW12) that her evidence in terms of identifying the Deceased (purportedly known by his nickname, Tiga Nam Nam) ought to have been rejected as it openly clashed with the Prosecution’s own evidence.

The learned Judge fell into error in adopting the submissions of the DPP who had through submissions, given the possible reasons and explanation for the contradictions in PW19’s evidence. Essentially, the DPP had attempted to fill the gaps by way of submissions which were nothing more than pure surmise and conjecture in circumstances where there was an abdication of duty on part of the DPP to get PW19 to explain the contradictions. Clearly, the DPP should have informed PW19 that the previous Prosecution witnesses had given evidence as to the whereabouts of the Deceased sometime between 7.00pm and 10.30pm on 22 January 2017 and that her testimony that the Deceased was with the Appellant outside Hong Soon Cafe from 5.00 or 6.00pm 22 January 2017 until 2.00am on 23 January 2017 was inherently impossible, and to give PW19 an opportunity, to perhaps correct herself, if at all that was possible. 53 | P a g e

Instead, the learned Judge took it upon herself to conclude that PW19 was “mistaken” in circumstances where there is no evidence by PW19 herself to say that she was mistaken. Having done that the learned Judge then concluded that PW19’s evidence that she saw the Deceased riding pillion on the motorcycle at 2.00am and that the rider was the Appellant, was credible.

The question that the learned Judge should have, but did not ask herself is – since PW19’s testimony was contradicted by the evidence given earlier by PW4, PW11 and PW12, whether her evidence, sans any clarification or explanation or correction, should have been rejected in toto.

The learned Judge should have also kept at the forefront of her mind that the s.27 Evidence Act 1950 route can at times be the product of abuse by those in charge of law enforcement. We do not say that abuse took place in this case. The risk of abuse is what we are dealing with here.

In view of the importance of the alleged utterance by the Appellant to PW21, the Prosecution ought to have called the other police personnel who were guarding the Appellant in Mee Hock Cafe to corroborate what PW21 had said - that the Appellant had informed him that he could show where the iron pipe was thrown.

In the present case, we find that there were not just gaps in the Prosecution’s case but rather there were gaping holes which were not at all cemented or plugged with any credible evidence. As such, in the circumstances as discussed above, the evidence of PW19 and that of PW21, are such that they could not reasonably inspire any confidence and be received into evidence with which to convict the Appellant. 54 | P a g e

Outcome In the final analysis, there were only two strands of circumstantial evidence which the Prosecution relied upon to connect the Appellant to the murder of the Deceased. The first strand was the “last seen alive theory” based upon evidence of PW19 which, for the several reasons mentioned in the earlier part of this Judgment, cannot withstand curial scrutiny in light of the contradictory evidence of PW4, PW11 and PW12, who are the Prosecution’s own witnesses and coupled with the failure to call Jenny. In the latter circumstances, s.114(g) of the Evidence Act 1950 ought to have been invoked.

The other strand of circumstantial evidence was the discovery of the alleged murder weapon, Exhibit P41A (under s.27 Evidence Act 1950), which also leaves much to be desired especially since what caused the Appellant to purportedly utter the damning words, “Saya boleh tunjuk mana tempat itu besi saya buang”, which appeared in the written document which was prepared by PW21 (Exhibit P69) (assuming he did utter them) were not disclosed and/or recorded. At best it just shows that he knew the location of the object and nothing more.

But as stated earlier, there is reason to doubt whether the Appellant did in fact utter those words. In this regard, the Prosecution ought to have, but failed to call D/Sgn Pani, D/Sgn Hafizul and D/Sgn Bubi (who were all said to be standing guard over the Appellant at Mee Hock Cafe) to corroborate PW21’s testimony – that the Appellant had informed him that he could show where the iron pipe was thrown. 55 | P a g e

The learned Judge ought to have been guided by the principle that the Prosecution bears the burden of proving the existence of credible evidence on each and every essential ingredient of the offence. By definition, credible evidence is evidence which has been filtered and which has gone through the process of evaluation. It follows that any evidence which is not safe to be acted upon should be rejected.

Hence, the learned Judge ought to have rejected the Prosecution’s evidence pertaining to the two strands of circumstantial evidence as being “unsafe”. With all these flaws, the learned Judge ought to have held that the Prosecution’s case which was predicated on circumstantial evidence, did not point irresistibly to the guilt of Appellant. In the result, the learned Judge ought to have acquitted and discharged the Appellant at the end of the Prosecution’s case. For the several reasons alluded to and discussed as above, we are compelled to differ, with the utmost respect to the learned Judge, from her finding that the Prosecution had at the end of its case, established a prima facie case.

At any rate, we are satisfied that given PW19’s incredulous evidence of the presence of the Deceased from 6.00pm to around 2.00am the next morning at the Hong Soon Cafe, the evidence of the Appellant that he was with DW3 all evening and that he had given DW3 a lift back to his home, was not altogether far-fetched and ought to have been, but was not given any consideration by the learned Judge.

In the result, we concluded that the Appellant had raised reasonable a doubt in respect of the case that was presented against him. We were satisfied that there are appealable errors warranting appellate intervention. 56 | P a g e

The Appellant’s conviction for murder was inherently unsafe. The appeal was allowed. The decision of the learned Judge dated 14 March 2019 and consequently the conviction and sentence were set aside. The Appellant was accordingly acquitted and discharged. Order accordingly. S. Nantha Balan, Judge, Court of Appeal, Putrajaya, Malaysia Date of Decision: 20 February 2023 Legal representation For the Appellant: Mr. Augustine Liom Messrs. Tang and Company, Advocates, No. 10A, First Floor, Jalan Kampung Datu, 96000 Sibu, Sarawak. For the Public Prosecutor: En. Muhammad Azmi bin Mashud (Deputy Public Prosecutor) Jabatan Peguam Negara, Bahagian Perbicaraan dan Rayuan, Aras 5, No. 45, Lot 4G7, Presint 4, Persiaran Perdana, 62100 Putrajaya.