Khiew Bu Poh v Pendakwa Raya (W-05(M)-106-02/2019)

(a) About 10 minutes after the shooting stopped, the appellant was seen wearing white hand gloves and started cleaning up the living area.

(b) At about 10.00 am, the appellant brought a yellow cloth which was later identified as moveable sauna to the kitchen.

(c) At 11.25 am, the appellant drove a pick up truck, Toyota Hilux bearing registration number BLU 6698 to the compound of the house.

(d) At 4.09 pm, the appellant together with two unknown men dragged a yellow package from the kitchen to the front portion of the house. The yellow package was wrapped again with a dark cloth before it was lifted onto the back of the Toyota Hilux using an aluminium ladder. [15] At the trial, Yap's sister known as Yap Lay Hoon (SP17) who lived not far from the place of the incident told the court that at about 10.00 am on the day of the incident, she received a phone call from her maid telling SP17 that her maid's friend who works at house No.3, Jalan Pelaga had heard a loud noise like shooting or fire crackers. This conversation prompted SP17 to check her mobile phone which allow her to watch the CCTV camera installed at house No.5 Jalan Pelaga. Upon checking, SP17 found a shooting incident has happened. Two days later at about 10.00 pm, SP17 lodged a police report. Consequent to this police report, the police carried out an investigation. [16] The police team, led by ASP Mohamad Hafiza bin Mohamad Razali (SP7) arrived at the place of the incident in the evening of 21.8.2016 and they have arrested 4 individuals including Yap and Lim Kee Keong (SP11). [17] At the place of the incident, the police found metal fragments believed to be from the bullets in the room where the shootings had taken place. [18] The deceased's body was found underneath a pile of goods at the back of Toyota Hilux. The body was wrapped in a zipped yellow cloth, covered with another layer of brown curtain and tied with a nylon and wire. Inside the package, the deceased's body was wrapped in a black plastic bag, blue blanket and chequered yellow cloth. [19] The appellant surrendered himself at Dengkil Police Station on 23.8.2016. On the same day, a urine sample was taken from the appellant. The appellant's urine sample was examined and analysed by the Science Officer (SP22) on 24.8.2016. In his report marked as exhibit P181, SP22 found the appellant's urine did not contain any drugs. Likewise, the Chemist (SP27) found there is no trace of drugs in the deceased's kidney and liver. [20] At the end of the prosecution's case, the learned trial judge ruled that a prima facie case as per the charge has been made out against the appellant. The prima facie case is based on the undisputed facts that it was the appellant who shot the deceased. The learned trial judge was satisfied that the appellant had an intention to kill the deceased after taking into account the following facts:-

(i) The appellant had fired incessant shots towards the deceased. Out of the 5 shots aimed at the deceased,2 shots were fatal.

(1) When a Judge or a Magistrate holding a trial has reason to suspect that the accused person is of unsound mind and consequently incapable of making his defence, he shall in the first instance investigate the fact of such unsoundness. [29] The learned trial judge did not forthwith make any decision with regards to the application. He reserved the decision to another date and proceeded with the trial. Only on the third day of the trial that is on the 4.1.2018 and after 11 witnesses have given evidence, that the learned trial judge made an order to allow the application under section 342 of the CPC. On 5.2.2018, the court's notes of proceeding at page 79 Appeal Record Jilid 2 (a) states: "Mahkamah mendapat surat daripada hospital psikiatri yang menyatakan bahawa OKT mampu dibicarakan di hadapan Mahkamah." Section 343 (3) of the CPC provides as follows:

(3) The certificate of the Medical Director shall be receivable as evidence under this section. [30] What happened in this case was neither the said "surat daripada hospital psikiatri" was tendered in court as an exhibit nor was there a record that parties were supplied with a copy of the said letter. The said letter also was not exhibited in the Appeal Records for this appeal. For these reasons, the appellant submit that there was a non-compliance of sections 342 and 343 (3) of the CPC and rendered the trial a nullity. The appellant relied on two cases. The first case was Hamzah Osman v PP [2017] 7 CLJ 273. Briefly, the facts in Hamzah's case is as follows. The appellant was charged at the High Court under section 302 of the Penal Code. Before the trial commenced, counsel for the appellant raised the issue of the appellant's unsoundness of mind. Exercising his power under section 342 (1) of the CPC, the learned trial judge ordered the appellant to be remanded for observation at Hospital Bahagia, Tanjung Rambutan under section 342 (3) of the CPC. The respondent informed the court that the medical report had been received confirming that the appellant was fit to stand trial. However, the medical report was never tendered and marked in the court as an exhibit. There was also no certificate by the Medical Director and that the respondent relied on an oral assertion in the court that the appellant was of sound mind and capable of making his defence based on the medical report that the respondent had sight. After the trial, the appellant was convicted and sentenced to death. The Federal Court held that section 343 (3) of the CPC is a mandatory provision and its non-compliance rendered the trial a nullity. Accordingly, the court allowed the appellant's appeal and ordered the case to be remitted back to the High Court for a retrial. The second case is the recent Court of Appeal's decision in the case of Muhd Haslam Abdullah v PP [2020] 4 CLJ 328. In that case, the appellant was charged under section 39B (1) (a) of the Dangerous Drugs Act 1952. Before the trial commenced, it was obvious to all parties that the appellant had a disability of the mind. The appellant held an OKU (Orang Kurang Upaya) card. The court then sent him to Hospital Bahagia Ulu Kinta for observation to ascertain if he was fit to stand trial for the offence. The medical report came back from Hospital Bahagia Ulu Kinta confirming that the appellant was of sound mind, fit to stand trial and able to defend himself. Unfortunately, neither the medical report was tendered as an exhibit nor was a copy given to the appellant. After the trial, the appellant was convicted and sentenced to death. Bearing in mind that the appellant is a mentally disable person and the trial judge's failure to address his mind with regard to the ability of the appellant to stand trial and to effectively put forward his defence, the Court of Appeal decided that the appellant's conviction and sentence is not safe and set it aside. [31] Coming back to this case. In response, the learned DPP submits that at the time when the charge was read to the appellant and he pleads not guilty, no issue was raised that the appellant was of unsound mind and not fit to stand trial. Therefore, it was submitted that his non-guilty plea was lawful in law and there was no requirement for the trial judge to investigate whether the appellant was of unsound mind or not. [32] We find the only similarity between the two cases cited by the appellant and the case before us is the non-production of the medical report stating that the appellant was fit to stand trial (in our case, the word 'letter' is used) as a court exhibit. Based on the Federal Court's decision in Hamzah Osman v PP, we agree that section 343 (3) of the CPC has not been complied with. But, we disagree with learned counsel that the trial is rendered a nullity. Our reasons are as follows. The facts in our case is totally different from Hamzah's case. In Hamzah's case, the appellant's mother has informed the court that the appellant suffered from mental depression and that he had tried to commit suicide a few times whilst he was in remand prison. Therefore, there was a reason to suspect that the accused was of unsound mind. Accordingly, the trial judge in Hamzah's case has a duty to investigate whether the accused was fit to stand trial and capable of making his defence by strictly following the procedure laid down under section 342 and 343 of the CPC to ensure the accused was accorded a fair trial. As this was not done by the trial judge in that case, the trial was rendered a nullity. Whereas, in our case, there was no evidence whatsoever of the appellant's unsoundness of mind except the appellant's oral testimony that he had taken drugs from 15.8.2016 to 18.8.2016; that he acted under the influence of drugs; that his actions were carried out by the muscles without any control by the mind and that he cannot remember anything at all what happened on 19.8.2016. But, during the prosecution's case, SP22 has testified that there was no trace of drugs in the appellant's body. Therefore, his defence that he was under the influence of drugs to the extent he lost his memory of the shooting incident cannot be true. Added to this, the appellant's conduct on the day of the incident shows he was rational and sane. He can used a pistol to fire 5 shots at the deceased, he chased the deceased, he hit the deceased's head, he packed up the deceased's body, he carried the deceased's body downstairs, he brought the deceased's body to Toyota Hilux and he hide the pistol inside a shoe rack. We agree with the learned DPP that this chronology of event shows the appellant was perfectly normal. In our view, his defence did not succeed to explain his conducts on the day of the incident. Based on the prosecution's evidence, we find that the learned trial judge had rightly held that the appellant's defence is a bare denial and that this denial had failed to raise a reasonable doubt to the prosecution's case. In PP v Ling Tee Huah [1982] 2 MLJ 324 at p.326, the court states: "A mere denial without other proof to reasonably dislodge the prosecution's evidence is not sufficient." [33] In Losali v Pendakwa Raya [2012] 2 CLJ 178, the court states: "The learned trial judge rightly held that the defence of the appellant was a bare denial. It is trite law that the defence of bare denial is no defence. What this amount to is this. That the appellant did not offer any explanation to the two charges and merely denied the evidence advanced by the prosecution. That was indeed a perilous course to undertake." Our decision In our view, the non-compliance with section 343(3) of the CPC had not occasioned a miscarriage of justice. We found the conviction and sentence against the appellant is safe. We, therefore dismissed his appeal. Dated 16th October 2020.

Hadhariah binti Syed Ismail Judge Court of Appeal For the Appellant: Nik Mohamed Ikhwan bin Nik Mahamud; Messrs Nik Ikhwan & Co. For the Respondent: Puan Hanim binti Mohd Rashid Deputy Public Prosecutor; Attorney General Chambers.