Jamaluddin Bin Ali v Pendakwa Raya (W-05(M)-53-01/2017)

The appellant and Nurhidayah binti A Ghani (the deceased) were husband and wife. They had 4 children.

Cannot stand her husband’s beatings, the deceased had left the appellant. She stays with her friends and her mother. On the night of 15.5.2013, the appellant managed to find her and had brought the deceased home on the same night. 3

The appellant’s friends ie SP16, SP20, SP21 and SP22 were at the scene on the night of 15.5.2013. These witnesses testified in court that they saw the appellant slapped and kicked the deceased twice.

On 16.5.2013, the appellant again slapped and kicked the deceased.

On 17.5.2013 at about 9.00 p.m, the deceased was unconscious. She was brought to UMMC and pronounced dead at 9.01 p.m.

A phatologist (SP9) who had conducted a biopsy and post mortem on the deceased told the court that the cause of death was multiple blunt force injuries and head injuries.

Satisfied that a prima facie case had been made out, the learned trial judge called the appellant for his defence.

His defence has been summarized by the learned trial judge at pages 102-103 of the Appeal Record Jilid 1 as follows: i) He did not hit the deceased at all whilst in the car on the night of 15.5.2013. He had only held the deceased’s hand or gripped it when he was angry; 4 ii) On the night of 15.5.2013 whilst in his house, he had only slapped the deceased twice, once on each cheek and kicked her twice; iii) On 16.5.2013, he was away at work from 8.30 am until 11.30 -12.00 noon. After work, he was at the garbage disposal store from 1 pm to 3 pm. On that day he had only arrived home at about 4.00 pm. He and his family had dinner at about 8.00 pm before Syaril came and scolded his wife for inviting his wife out the night before. It was the appellant who defended the deceased at this time. At about 11.00 pm, he had entered the bedroom and had a long conversation with the deceased where the deceased had disclosed about her problems; iv) On 17.5.2013, he left his house at 8.30 am and was at work until 12.00 -12.30 pm. After work, he left to perform his Friday prayers, after which he had bought mee soup for his wife. He had then gone to the store penyimpanan sampah where he stayed until 6.00 pm. He arrived home at 6.45 pm. He did not immediately enter his house but sat outside the house. He telephoned Dino (SP22) to come and help him find his wife’s male friend. He also messaged Toyai (SP 21). He went into his kitchen and saw ‘bayang-bayang’ of his wife on the bed. He did not 5 go into the bedroom but watched television in the sitting room whilst waiting for Dino (SP22) to arrive; v) After Dino had arrived, the appellant heard a sound of something falling in the bedroom. He went into the bedroom and saw his wife in a corner. He picked up his wife and asked her what had happened and received no response. He carried her into the living room and it was only then that he saw the injuries on the deceased’s face; vi) He and Dino then brought his wife to the hospital. He stayed there for a long time until he left to bring his children. When he telephoned the hospital for news of his wife, he overheard that they were going to arrest him. He panicked and did not return to the hospital for fear of being arrested. Grounds of appeal This appeal is grounded on the following three grounds: a) The circumstancial evidence relied on by the prosecution and the learned trial judge fell short of a prima facie case. b) The learned trial judge had misdirected herself in law and facts in evaluating and handling the evidence testified by witnesses. 6 c) The learned trial judge had misdirected herself in fact and law in evaluating and handling the defence put forward by the appellant. In our view, ground (a) and (b) can be taken together because in order to decide whether there was or not a prima facie case, of course the trial judge had to evaluate the testimonies of the prosecution’s witnesses. That means there are only ground (a) and

to be considered in this appeal. Ground (a) - no prima facie case In submitting there was no prima facie case made out against the appellant, learned counsel for the appellant had raised the following points: i) The prosecution’s case against the appellant was based extensively on circumstantial evidence in that there was no direct evidence at all to pin point that the appellant had murdered the deceased i.e. had beaten the deceased to death. It was submitted that there was a gap in the chain of evidence of the prosecution’s witnesses as to the assault and time of death and did not satisfy the test of circumstantial evidence as has been aptly described in PP v Hanif Basree bin Abdul Rahman [2007] 2 CL J 33 as follows : “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 7 v PP [1962] ML J 307). There is insufficient evidence to connect the respondent with the killing. Circumstancial evidence should be such that when you look at all the surrounding circumstance, you find such a series of undersigned, 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 PP [1960] ML J 96. ii) Involvement of third party. iii) No motive. iv) Subsequent conduct of the appellant. At para 233 of her grounds of decision, the learned trial judge makes a finding that the prosecution’s case is based on a mixture of direct evidence and circumstantial evidence. She also bear in mind the law on circumstantial evidence. In particular the trial judge is aware that the court must look at the evidences which conclusively show that the multiple injuries inflicted on the deceased which subsequently led to her death must have been done by the appellant. In this regard, the learned trial judge has accepted the testimony of the deceased’s sister, Umi Kalsom binti A. Ghani (SP14), the deceased’s friends, Akmal Hazida binti Hassanudin (SP15) and the deceased’s sister in law, Sarina binti Ali (SP17). SP14 had testified of the two incidents on 17.3.2013 and 21.4.2013 respectively where she had seen with her own eyes the abusive behaviour of the appellant. On 17.3.2013 at Masjid Jamek, SP14 saw the appellant in the middle 8 of choking the deceased with one hand and holding her other hand behind her back. On 21.4.2013, SP14 was sending the deceased’s 3 children back to their father’s house when the appellant repeatedly hit the back windscreen of her car. SP14 also told the court that since February 2013, the deceased refused to stay with the appellant because she could not stand being hit and beaten by the appellant. The deceased has been staying at her mother’s house. There were 11 police reports lodged by the deceased against the appellant. SP15 who worked at the same workplace with the deceased told the court of how the appellant would come to the deceased’s work place every day and slapped and threatened the deceased to come back and live with him. On 15.5.2013 at about 10.00 pm, the deceased, SP15, SP17 and SP17’s auntie were in a car driven by SP17. The four of them intended to go to Jalan Doraisamy to have drinks and food. They did not make it. They were stopped by a motorcycle ridden by SP16 (SP17’s husband) with the appellant as pillion. SP15 had testified that the moment the deceased saw the appellant, the deceased had shouted to SP17 not to stop the car but to drive to the police station. Fearing her husband (SP16), SP17 had stopped the car. When the car stopped,the appellant get into the car and slapped the deceased. Although SP15, SP16 and SP17 did not actually see the appellant slapped the deceased, but they could hear the sound of slapping. The learned trial judge accepted the testimony of SP14, SP15, SP16 and SP17 as to what they had personally witnessed and heard the appellant did to the deceased. To the trial judge, their evidences established that : a. The appellant is a hot tempred man and the couple had marital problems. 9 b. The appellant was very angry at the deceased for leaving their marital home. c. The appellant was unceasing in his efforts to force the deceased to return to him. d. The deceased was scared of the appellant. e. The appellant had slapped the deceased on numerous occasions at public places and in front of the deceased’s friends. After the appellant had succeeded in dragging the deceased back to their matrimonial home, the appellant’s friends (SP16, SP20, SP21 and SP22) could hear the sound of the deceased crying from outside the house and the loud and angry voice of the appellant scolding the deceased. Still on the night of 15.5.2013, after SP16, SP20, SP21 and SP22 were allowed entry into the appellant’s house, they saw the appellant slapping the deceased on her cheeks, kicked the deceased on her thigh and landed a flying kick at her. These appellant’s friends had to hold the appellant from further assaulting the deceased. On 16.5.2013 at 10.00 pm, SP16 went to the appellant’s house to collect a voucher for garbage disposal from the appellant. When SP16 entered the appellant’s house, he saw the deceased’s left cheek was swollen. As to what happen to the deceased on 17.5.2013, the couple’s child (SP23) testified that she saw her father (the appellant) slapped her mother, banging her mother’s head against the wall and beating her mother with a fishing rod in the bedroom. On 17.5.2013 at about 8.00 pm, the appellant had called his friends to come over to his house after his wife had become ‘nazak’. SP22 who arrived at the appellant’s house 10 at 8.15 pm testified that when he entered the appellant’s house, he saw the deceased was lying on the floor, not moving, her eyes closed and her face was swollen. We notice that the learned trial judge had carefully analyse the testimony of the prosecution’s witnesses. We agree with her findings at the end of the prosecution’s case where she said at para 251- 254 in her grounds of decision: “251. The Court is of the considered view that between the time when the accused brought the deceased home on the night of 15.5.2013 and the night of 17.5.2013 when the deceased was brought to the hospital, only to be declared dead soon after her arrival at the hospital, the deceased had been inflicted with a horrifying amount of injuries such that she succumbed to her death. The Court is satisfied that it was the accused who had caused her death by inflicting the multitude of injuries on her. There is evidence that he was attempting to obtain some information or confession from her right up to the night of 17.5.2013. The Court sees no evidence of anyone else who could have caused her injuries.

The DNA evidence points unmistakably to the use of items such as the cable, rubber hose, cell phone chargers, cling wrap roll, boot and segment of a fishing rod to assault the deceased.

….these injuries, taken collectively, would in the normal cause of nature be sufficient to cause death. 11

In light of the Court’s findings as stated above, at the close of the prosecution’s case, the Court had found that the prosecution had made out a prima facie case against the accused on the charge preferred which if unrebutted or unexplained would have warranted his conviction. The Court had thus called on the accused to enter upon his defence.” In answer to learned counsel’s submission that the appellant does not have any motive or reason to murder the deceased who was his beloved wife, we had this to say. It is a proven fact that the appellant was angry at the deceased because the deceased refused to live with him. The appellant was angry at the deceased because he accused the deceased had an affair with a third party. The appellant was not a loving husband. He was a cruel man, who hated his wife. He treated his wife as a punching bag by inflicting repeated blows and kicking. There were 34 injuries found on the deceased’s body. PW9 had stated that the injuries inflicted on the deceased was not self inflicted. By his unmerciful conduct, we can see the hatred the appellant had against his wife that he decided to take away her life. In short, in this case, the evidence pin point only to the appellant as the person who murdered the deceased. In the circumstances, we find there is no error of law or facts committed by the learned trial judge when she held there is a prima facie case made out against the appellant. Ground (c) - defence case On this ground, learned counsel for the appellant submitted that the learned trial judge had erred by failing to consider the appellant’s defence as follows : 12 a) Defective charge; b) Alibi on 16.5.2013 from 8.30 am until 3.30 pm and on 17.5.2013 from 8.30 am until 6.00 pm; c) Murder under section 300 of the Penal Code was not satisfied. On the point of defective charge, learned counsel for the appellant submitted that the appellant was charged to have murdered the deceased at Lot 18, Kg Petaling Bahagia Batu 5 ½ Jalan Puchong, Kuala Lumpur. However, during the trial ,the place where the offence had allegedly taken place was not at Lot 18, but at Lot 17. It was pointed out that Lot 17 was mentioned by PW1 and PW16. As the offence had not taken place at Lot 18, it was submitted that the appellant had been misled to prepare his defence for something that had never taken place at Lot 18 and this has caused a failure of justice. On the issue of wrong address, we noted the learned trial judge had stated at para 282 of her grounds of decision as follows: “282. As regards his address, the accused said that he lived at Lot No.18. He had lived there for 4 years. Lot No.17 is not his house..” Further down, at para 293, the learned trial judge states: “293. ..Based on all the evidence adduced, the Court is satisfied, through the evidence of the accused’s friends and relative of the deceased, that the house that the accused 13 lived in, and where the material events of this case occurred, was not Lot 17 but Lot 18.” Based on the appellant’s own admission that he lived at No.18; the deceased was beaten up in his house and the trial judge’s finding that the material events occurred in the house at Lot No.18, the charge was not defective and there was no miscarriage of justice. We find there is no merit on this issue of wrong address. Moving on to the defence of alibi. The appellant worked as a cook with DW2 at De Chef Cuisine Catering. The appellant claimed that he was at work at least from 8.30 am to 12.00 noon on both 16.5.2013 and 17.5.2013. Therefore, the appellant says he could not have beaten the deceased during the period he was away at work on 16.5.2013 and 17.5.2013. On the issue of alibi, the learned trial judge said at paras 296,297 and 299 as follows : “296…The accused ‘s alibi defence is not a complete alibi covering the period from 9.00 pm on 15.5.2013 to 9.00 pm on 17.5.2013. His alibi only covers certain hours where he claims to be at work at De Chef Cuisine Catering.

However, in light of the fact that the accused’s place of employment does not employ either a punch clock or a register for purposes of recording attendance, there would be no hard evidence to prove the accused ‘s attendance at work..

Thus, on this issue of alibi, the Court is satisfied that the accused’s alibi has not been successfully established. The Court finds from the evidence adduced that neither his presence at De Chef 14 Cuisine Catering or at the setor pelupusan sampah has been established or at all.” In short, the appellant has failed to proof that he was actually at his work place on 15.5.2013 to 17.5.2013. The appellant’s employer, SD2 has testified that not only the appellant would often escape from work, but he also refused to sign an attendance register for work. In the absence of any documentary proof, there is serious doubt that the appellant was working at the material time. Therefore, the learned trial judge was right in rejecting the defence of alibi. On the issue murder under section 300 of the Penal Code is not satisfied, learned counsel for the appellant submitted that: i) the injuries inflicted on the deceased was not sufficient in the ordinary course of nature to cause death; and ii) there is no proof that the appellant had knowledge of imminent danger of causing death when he inflicted the blows on the deceased. Therefore, it was submitted that the conviction against the appellant for murder cannot stand. With respect, we find this issue is a non-starter. The Forensic pathologist (SP9) had told the court that the injuries were inflicted at the same time and repeatedly within a short period of time and that these injuries, taken collectively, would in the normal cause of nature be sufficient to cause death. The trial judge has accepted 15 the testimony of SP9. Who is the appellant to say otherwise. Especially when the appellant denied he inflicted those injuries. Therefore, we find there is no merit on this issue. Our decision The appellant’s conduct is extremely harsh and oppressive. On the facts and the law, his conviction is safe. This appeal has no merit at all. We unanimously dismissed this appeal. Dated 26 Mei 2020. t.t Hadhariah bt Syed Ismail Judge Court of Appeal. For the Appellant : En Mahadi bin Muhamad & En Muhamad Syafiq Amani bin Md Sabri ; Messrs Mahadi Redzuan & Co. For the Prosecution : En Mohd Zain bin Ibrahim; Trial & Appeal Division, Attorney General Chambers Holding watching brief for the victim family : En Arik Zakri bin Abdul Kadir.