Lim San Muk v Pendakwa Raya (J-05(M)-35-01-2017)

The appellant was charged with and convicted of two charges, the first under section 302 of the Penal Code for murder and the 2 second under section 324 of the same Code (‘PC’) for causing hurt to two different persons. That second charge was an amended one, which amendment was done by the Court at the close of the prosecution’s case, the original being under section 326 of the PC. The reason for the amendment was the prosecution’s failure to prove that the injuries suffered by the victim were grievous in nature. Although initially the Public Prosecutor was dissatisfied with that amendment and filed an appeal against it but subsequently a notice of discontinuance was filed against the said appeal. The appellant was sentenced to the mandatory death penalty for the first charge and to five years imprisonment for the second amended charge. The details of the charges are reproduced below: First Charge: “Bahawa kamu pada 15.06.2013 jam lebih kurang 1.50 tengah malam, di hadapan Kuwait Finance House, Jalan Flora Utama 3, Taman Flora Utama, Batu Pahat, di dalam Daerah Batu Pahat, di dalam negeri Johor dengan niat telah melakukan kesalahan bunuh sehingga menyebabkan kematian kepada En. Rooneskumar a/l Poobalasingam KP No: 830918-01-6181 menggunakan senjata sepucuk pistol melepaskan tembakan badannya dan akibat tembakan tersebut menyebabkan 3 kematiannya. Oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh di hukum di bawah seksyen 302 Kanun Kesiksaan.” Second Amended Charge: “Bahawa kamu pada 15.6.2013 jam lebih kurang 1.50 pagi di hadapan Kuwait Finance House, Jalan Flora Utama 3, Taman Flora Utama, di dalam Daerah Batu Pahat, di dalam negeri Johor Darul Ta’zim telah dengan sengaja menyebabkan kecederaan kepada Teo Kok Ann (No. KP: 921008-01-6151) dengan menggunakan sepucuk pistol di mana ianya adalah alat untuk menembak. Oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 324 Kanun

We heard the said appeal on 14/8/2019 and dismissed the same by a unanimous decision. Before delving into the details of the appeal we need to mention that the notice of appeal filed by the Public Prosecutor at pages 9 – 10 of Volume 1 of the Appeal Record dated 21/12/2016 states that it was against sentence for the conviction under section 324, not the amendment per se. Nonetheless, at the hearing of the appeal before us, no submission was made by the learned Deputy Public Prosecutor 4 (“DPP”) on the said sentence. Since there was only this one notice of appeal filed by the PP in our record we assumed that this was the appeal that was withdrawn as alluded to earlier. The Prosecution Case 3. The two victims in this case were at the material time as stated in the charge working as bouncers in the Pub as named in the charge and the appellant was there in its VIP room together with four of his friends before being joined in the later part of the night before the incident by one Teo Siew Swan (PW9). The incident that prompted the appellant to act in the manner as alleged in the charge was innocuous enough. It was the act of the appellant, who in his drunken state caused a glass to fall from the table and which broke upon impact. Upon being informed of the incident, the deceased and the other victim, Teo Kok Am (PW10) went to confront the appellant in the VIP room and the deceased asked the appellant and his friends to leave. According to PW10, they all did but about 15 minutes later the appellant returned. PW10 who was by the roadside of the pub heard the sound of gunshot and when he went in the direction of the sound of the gunshot, he saw the appellant in front of Kuwait Finance House holding a pistol. PW10 witnessed the appellant 5 shooting at a friend of the deceased, one Ah Chian whose full name is Ching Tong Chian, when the latter threw a chair at him. PW10 was also shot at his thigh when he tried to detain the appellant. The deceased also attempted to do the same but the appellant turned and shot him on his chest. Both the deceased and PW10 fled the scene but the deceased collapsed in front of the said Kuwait Finance House. He was later brought to Hospital Sultanah Nora Ismail, Batu Pahat and was pronounced dead on arrival. A post-mortem was conducted by Dr. Mohamad Aznool Haidy Bin Haji Ahsorori (PW12) and he certified the cause of death as a gunshot wound to the heart.

The appellant was subsequently arrested almost a year later in Kuala Krai, Kelantan on 3/4/2014 and at an identification parade conducted on 12/4/2014 by PW15 (Inspector Sugendharan Nail a/l Karunagaran), PW10 identified the appellant as the shooter, which fact he later confirmed in court at the trial. Besides PW10, Ah Chian also identified the appellant at the identification parade. He was however not called as a witness by the prosecution, (though present at the trial) and nor by the defence. PW9 similarly was called to attend the identification parade but was unable to identify the appellant. 6

Based on the aforesaid evidence, the learned Judicial Commissioner was satisfied that a prima facie case has been made out against the appellant for the charge of murder and causing hurt and called the appellant to give his defence to the two charges. The Defence 6. The appellant gave sworn evidence and called two witnesses in his defence. One was a formal one, that is, an officer from Road Transport Department, Ainon Binti Ngadungon (DW2) who tendered the official document (Exh. D37) which confirmed that the registered owner of a Proton Iswara car with registration number WJY 782 was one Kang Kian Meng. This was the car allegedly driven by the appellant to the said Pub. The other was one of his friend’s present at the Pub and at the scene that night, Kang Choo Heng (DW3) who corroborated the appellant’s evidence that he was with him and waiting for their friend Tan Keng Chai alias Ah Chai by the side of Kuwait Finance House after leaving the VIP lounge. He also testified that their drinking session there had ended when they heard the sound of the gunshots whereupon both fled and he to the main road where he took a taxi to go home. The appellant, said DW3, was not 7 seen by him carrying any arms when they were at the VIP room that night.

As for the appellant, he totally denied firing the shots as alleged. He said, as per the evidence of DW3 as well, that after he broke the glass in the VIP room the deceased came and then left without any fuss after one of the appellant’s friends explained to the deceased that he broke the glass because of his intoxication and they apologised to the deceased. Thereafter they all continued with their drinking session and he was so intoxicated that DW3 had to help him (“memapah”) out of the Pub. They both then waited outside for another friend of his, the said Ah Chai, to fetch him from the Pub because the appellant said he was too intoxicated to drive himself back home. It was whilst they were there that they heard the sounds of the gunshots being fired and they both fled in different directions. He took a taxi home after failing to call and get Ah Chai on his handphone. Upon reaching home, the appellant said he slept. The following day he left for Kelantan for business purpose and not to run away from the crime alleged against him. 8

Other than these 3 witnesses, the defence also recalled PW3, PW9 and PW16 for further cross-examination. This was done in consonant with the appellant’s right following the amendment of the second charge since the amendment was not only in respect of the section of the PC but also the place where PW10 was shot, that is, instead of the Pub as in the original charge, it was changed to the same place as that of the scene of the murder, that is, in front of Kuwait Finance House. When recalled PW3 and PW16 both gave different places where the shooting happened, that is, at the pub and in front of the pub, respectively whilst the evidence of PW10 was it was in front of the said Kuwait Finance House.

The learned Judicial Commissioner considered in paragraph 43 of his judgment that this contradiction was not a material one which affected the prosecution’s case or the evidence of PW10 that it was the appellant who shot him and the deceased in front of the said Kuwait Finance House as he was the best person to give evidence as to the place where he had been shot.

In respect of the ownership of the car, the learned Judicial Commissioner found that it was totally irrelevant to the charge 9 against the appellant. The learned Judicial Commissioner concluded that the defence of the appellant failed to raise any reasonable doubt on the prosecution’s case as it was a mere denial and commented that his act of leaving for Kelantan the following day raised an inference that he was running away from the crime he had committed. His Lordship acknowledged that the whole case of the prosecution rested on the evidence of PW10 and which he had no reason to reject. Thus, the appellant was convicted of the aforesaid two charges and sentenced accordingly by His Lordship as stated earlier. The Appeal 11. The learned Judicial Commissioner’s pronouncement that the prosecution’s case rested wholly on the evidence of PW10 was equally prophetic at the hearing of the appeal before us for the petition of appeal and the written submission of learned counsel for the appellant were both focused on that issue of identification of the appellant as the assailant or shooter of the two victims that night.

Learned counsel in his written submission first pointed out the slight error in the date of the two charges which we totally agree 10 with and commended him for it. It is that since the time of the commission of the offence was at 1.50 a.m., the date should be 16/6/2013 and no longer 15/6/2013. It is to be noted that the arrival of the appellant and his friends at the Pub was between 9.00 p.m. to 10.00 p.m. that night of the 15/6/2013. That slight error is of no consequence to the decision of the learned Judicial Commissioner and the appeal before us.

On the merits of the appeal, learned counsel submitted that the identification by PW10 of the appellant being the assailant was highly suspicious and of extremely poor quality. He also said the analysis of the learned Judicial Commissioner on the said evidence of PW10 was seriously flawed and unfair to the appellant. Given it being the sole ground of appeal before us and thus its importance to our decision, we would now pause to quote in extenso His Lordship’s reasonings and finding on this evidence of PW10 which are in paragraphs 17 to 20 of his judgment. “17. SP10 telah mengecam secara positif orang yang menembak simati dan beliau adalah tertuduh. Tertuduh telah dicamkan secara positif oleh SP10 di dalam 11 perbarisan pengecaman yang dikendalikan oleh SP15. Percanggahan antara keterangan SP10 dengan keterangan SP15 tentang sama ada tertuduh memakai cermin mata ataupun tidak semasa sesi perbarisan pengecaman pada pendapat saya sama sekali tidak menjejaskan pengecaman SP10 ke atas tertuduh. Terdapat faktor-faktor lain semasa kejadian yang menjadi penyumbang kepada kualiti baik pengecaman tertuduh dan pengecaman positif SP10 tidak goyah dalam pemeriksaan balas. Perbarisan pengecaman yang dikendalikan SP15 adalah teratur, tidak cacat, mengikut prosedur dan tidak menimbulkan kekeliruan kepada SP10 yang membuat pengecaman walaupun umur peserta bukan dalam kelompok umur yang sama dengan tertuduh. SP15 telah menjelaskan kesukaran untuk mencari peserta yang seusia dengan tertuduh. Namun kriteria lain diambil kira iaitu mengikut bentuk fizikal tertuduh dan ketinggian peserta adalah lebih kurang sama. Mahkamah menerima pengecaman tertuduh oleh SP10 di dalam perbarisan pengecaman.

Secara alternatif jika pun perbarisan pengecaman adalah cacat dan pengecaman SP10 ke atas tertuduh di dalam perbarisan pengecaman tidak mempunyai apa-apa nilai keterangan, mahkamah boleh bergantung kepada 12 pengecaman dalam kandang salah (dock identification) sahaja (Ong Poh Cheng v PP [1998] 4 CLJ 1). SP10 telah mengecam secara positif di dalam kandang salah pada 13 April 2016 orang yang menembak simati dan menembak beliau iaitu Ah Lim adalah tertuduh. Mahkamah menerima pengecaman tertuduh dalam kandang salah oleh SP10 kerana berpuas hati terdapatnya beberapa faktor penting yang membolehkan SP10 mengecam tertuduh (Arumugam Muthusamy v PP [1998] 3 CLJ 597). SP10 telah menyatakan deskripsi tertuduh semasa memberi keterangan di mahkamah. Tertuduh memakai cermin mata, badan sedikit gemuk, warna kulit seperti beliau. SP10 juga menyatakan pakaian yang dipakai tertuduh pada hari kejadian. Dan SP10 masih mengingati muka tertuduh.

Kualiti pengecaman tertuduh oleh SP10 pada masa kejadian adalah baik, maka ianya tidak memerlukan keterangan sokongan seperti deskripsi/ciri-ciri khusus tertuduh yang diberi oleh SP10 kepada polis sejurus selepas kejadian (Jaafar bin Ali v PP [1998] 4 MLJ 406).

SP10 nampak tertuduh di hadapan pintu besar pub tersebut semasa keluar. Keadaan cahaya boleh nampak. Tertuduh ada bercakap dengan simati. Simati menyuruh 13 tertuduh balik dan tertuduh pun balik. SP10 nampak tertuduh dalam masa 2 hingga 3 minit ketika di hadapan pintu besar pub tersebut. Tertuduh datang kembali lebih kurang 15 minit kemudian. SP10 berada di atas jalanraya di hadapan pub tersebut. Selepas mendengar bunyi tembakan SP10 berlari ke tempat bunyi tembakan tersebut iaitu di hadapan Bank. SP10 nampak tertuduh memegang pistol. Cahaya ketika itu boleh nampak. Tertuduh menembak ke arah Ah Chian apabila Ah Chian membaling kerusi ke arah tertuduh. Tertuduh menembak SP10 apabila SP10 hendak menangkap tertuduh. Tertuduh menembak simati apabila simati berlari hendak menangkap tertuduh. Tertuduh berada dekat dengan SP10. Tertuduh menembak SP10 dalam jarak yang dekat. Jarak tertuduh dengan SP10 semasa tertuduh menembak simati adalah dekat lebih kurang 3 kaki. SP10 bukannya melihat tertuduh sepintas lalu atau pun dalam masa yang singkat. SP10 bukannya melihat tertuduh sekali sahaja. Sepanjang kejadian ini, SP10 dapat melihat tertuduh lebih daripada sekali. SP10 dapat melihat tertuduh sekurang-kurangnya 5 kali. Kali pertama SP10 nampak tertuduh ketika di hadapan pintu besar pub. Kali kedua SP10 nampak tertuduh di hadapan Bank, memegang pistol. Kali ketiga SP10 nampak tertuduh menembak ke arah Ah Chian. Kali keempat ketika 14 tertuduh menembak beliau dan kali kelima ketika tertuduh menembak simati. Begitu juga keadaan cahaya pada masa-masa tersebut adalah boleh nampak dan jarak tertuduh dengan SP10 adalah dekat ketika tertuduh menembak SP10 dan simati. (emphasis added.)

Learned counsel for the appellant’s negative comment on the above analysis by the learned Judicial Commissioner as stated earlier was because of the following reasons:

PW10 only had a brief observation of the appellant of only 2-3 minutes at the main door of the Pub when the appellant was leaving whilst the other “so-called observations” was when the shootings occurred which was a chaotic moment of life and death when the gunshot was fired at him. Further, he submitted that the shootings were in succession and they were all over in seconds. He cited the case of Arumugam & 2 Ors v PP [1994] 4 CLJ 519 where the identification of the second and third appellants by the complainant was declared unreliable because they were strangers and arrested 10 months after the incident which was when the identification parade was held. 15

(ii) The brief observation at the main door was bad, said learned counsel, because of the discrepancy in the evidence of PW10 and PW9 in that PW10 said after the glass was broken, the deceased threw the appellant and his friends out of the Pub. However, PW9 as well as the appellant and DW3 said they did not leave immediately after the confrontation which was amicable with the apologies tendered by them but only after resuming their drinking session and the appellant and DW3 left first whilst the rest later. PW10 in his cross-examination said these at page 154 of Volume 2A of the Appeal Record: “S252: Tapi Encik Teo tahu atau tidak bahawa ada saksi yang tidak dicabar yang menyatakan bahawa ada dua kali satu kumpulan balik dahulu kemudian satu kumpulan balik kemudian dari insiden bilik itu? J252: Saya tidak tahu samada mereka semua balik sekali atau tidak. S253: Jadi Encik Teo juga tidak pasti sama ada Ah Lim ini balik kali pertama atau kali kedua? J253: Saya tidak tahu. 16 S254: Saya cadangkan kepada Encik Teo daripada keterangan saksi sebelum ini kumpulan kedua yang balik daripada pub ini mencadangkan bahawa mereka balik sekitar pukul 12.00 malam? J254: Saya tidak tahu.” This evidence shows, said learned counsel, that PW10 was not at the main door of the Pub when the appellant and his friends left the place for if he were he would have seen them leaving once all together or in two batches.

(iii) The quality of identification at the ID parade conducted on 12/4/2014 was bad because of the following reasons:

Out of 10 participants, only one was of the same age group of the appellant. The others were much older or younger.

Ching Tong Chian who also identified the appellant at the identification parade was not called and an ‘adverse presumption’, to use counsel’s own words, should be invoked against the prosecution for not calling him as a witness, 17

(iv) The dock identification by PW10 carries little weight as it had been influenced by the earlier identification parade.

There was no corroborative evidence of PW10’s identification of the appellant as the assailant in this case as the car allegedly driven by the appellant was not his. There was also no forensic evidence to link him to the crime and of course the non-recovery of the pistol stood against the prosecution.

With respect to learned counsel, we find no merits in the issues raised by him. In deciding so we are firstly guided by the trite law that as an appellate court we should be slow in disturbing the finding of facts and credibility of a witness by the trial judge. In this regard, the decision of the Federal Court in Low Kian Boon & Anor v Public Prosecutor [2010] 4 MLJ 425 affords a good reminder for us on our duty as one and the relevant paragraphs 17 – 21 on this are reproduced below: “[17] At this stage it is also opportune to mention the principles governing appellate intervention, particularly, where in this appeal before us there are concurrent findings on facts bearing 18 in mind that the conviction has been sustained on circumstantial evidence. [18] In the Malaysian context the much publicised case of Dato Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232, affords a reminder that has been extolled in the judicial statements of the Federal Court, namely, when the credibility of witnesses are being evaluated the functions of an appellate court, in dealing with a question of fact in which questions of credibility are involved, are limited in their character and scope. In this instant appeal, there are found expressions by the HC judge of his opinion of witnesses whom he has seen and as an appellate court in order to reverse that, this court must be convinced that the trial judge is wrong. [19] The following are some of the judicial decision that reflect the ambit of the powers of an appellate court to interfere with the findings of a trial court. The case of Antonio Dias Caldeira v Frederick Augustus Gray [1936] MLJ 110 at p 110, could first be mentioned. The Privy Council held: ... that the functions of an appellate court, when dealing with a question of fact, and a question of fact in which questions of credibility are involved, are limited in their character and scope. 19 In an appeal from a decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, an appellate court must in order to reverse, not merely entertain doubts whether the decision below is right but must be convinced that it is wrong. [20] The Federal Court cited this passage in Dato Mokhtar bin Hashim v Public Prosecutor. It is also not part of the function of an appellate court to make its own finding of fact. In Public Prosecutor v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393; [2006] 1 CLJ 457, The Federal Court held, (per Gopal Sri Ram, then JCA): Now, it settled law that it is no part of the function of an appellate court in a criminal case or indeed any case to make its own findings of fact. That is a function exclusively reserved by the law to the trial court. The reason is obvious. An appellate court is necessarily fettered because it lacks the audio visual advantage enjoyed by the trial court. [21] There must be overriding error in the assessment of the facts or there are blatant errors committed in coming to such 20 findings. In Bear Island Foundation v AG for Ontario [1991] 83 DLR (4th) 381, the Supreme Court of Canada held: This case, it must be underlined, raises for the most part essentially factual issues on which the courts below were in agreement. On such issues, the rule is that an appellate court should not reverse the trial judge in the absence of palpable and overriding error which affected his or her assessment of the facts.”

We had earlier reproduced in extenso the learned Judicial Commissioner’s assessment of the evidence of PW10 in respect of his identification of the appellant as the assailant in this case for the reason, as stated earlier, that the said issue was the crux of the appeal before us. This is notwithstanding the fact that the appellant was earlier seen with a group of people at the Pub. When we examined the evidence, we simply have no cause to impugn the said assessment and his finding that PW10 was a credible witness. In this regard it must be remembered that the deceased and PW10 had earlier confronted the appellant and his group over the broken glass incident and did see them leave the Pub. Thus, the identification of the appellant by PW10 was not solely based on the shooting incident which we agree was 21 not only fast and swift but must also surely be traumatic for PW10. Further as noted by His Lordship the area where the shooting took place was lit up.

As for the complaints levelled at the conduct of the identification parade, as rightly pointed out by the learned DPP in her written submission, based on Adiswaran a/l Tharumaputrintar v Public Prosecutor and other appeals [2014] 3 MLJ 228, for so long as the guidelines in R v Turnbull [1976] 3 ALL ER 549 had been complied with, the disparity in the age of the participants with that of the accused was not material. The identification parade was held in the cited case to be properly conducted despite such disparity in the ages of the participants and the same goes for this case before us. In this regard we noted that PW15 has explained that the participants, though gathered in just about two hours before the parade, were of similar physical size with the appellant. Further, what is important, as held by the Federal Court in the cited case were the circumstances in which the witness had seen the accused such as the distance, the length of time and the lighting. Here, as we noted earlier PW10 did not just have a fleeting glance of the appellant but more than that he, together with the deceased had confronted 22 the appellant and his group of friends over the broken glass incident and he could even recalled the appellant’s dressing that night. What was also established from his evidence was that, at that material time, the place was illuminated by street light from near the five foot way and also from a restaurant that was still operating then.

Furthermore, what is clear in Arumugam’s case (supra), the dock identification of an accused was the substantive evidence – not that made at the identification parade for that evidence was merely corroborative evidence dictated by the rule of prudence and whose weight must be assessed by the court. This answers the complaint about the dock identification raised by learned counsel as framed by us earlier.

As for the lack of corroborative evidence to support PW10’s evidence against the appellant which issue was also raised before us, firstly, we say that there is no legal requirement for his evidence to be corroborated. On the other hand there is a clear statutory provision, that is, section 134 of the Evidence Act 1950 that no particular number of witness is required to prove any fact. The case of Balachandran v Public Prosecutor [2005] 1 CLJ 23 85 is also instructive on this legal point. Last but not least, it has not been shown in the evidence adduced at the trial that PW10 had any axe to grind or an ulterior motive to frame the appellant and the presence or absence of such motive is one of the factors that a trier of fact should apply when evaluating oral evidence. (See Public Prosecutor v Mohd Bandar Shah Nordin [2008]

In respect of the non-calling of Ching Tong Chian alias Ah Chian, he has, as rightly submitted by the learned DPP, been offered to the defence, and what was more, interviewed by the appellant’s counsel at the trial but the defence chose not to call him. There was, in other words, no suppression or withholding of his evidence which justifies the invocation of an adverse inference against the prosecution (see Munusamy Vengadasani v PP [1987] CLJ (Rep) 211). Just for completeness and before we conclude, we would briefly say that the absence of the assault weapon, that is the pistol does not impact negatively on the prosecution’s case given the strong evidence on the appellant’s culpability from the evidence of PW10 and the law, from the decision of the Supreme Court in Sunny Ang v PP [1966] 2 MLJ 195 that even without the recovery of the corpse, a man can still 24 be convicted of murder, what more to say the absence of a murder weapon.

For all the above reasons, the appeal of the appellant was dismissed and the decision of the learned Judicial Commissioner was affirmed by us. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 11 October 2019 Note: This copy of the Court’s Grounds of Judgment is subject to editorial revision. Parties Appearing: For The Appellant: Yoong How Kiat (Messrs HK Yoong) For The Respondent: Roslan Bin Mat Nor Deputy Public Prosecutor Attorney General’s Chambers 25

Arumugam & 2 Ors v PP [1994] 4 CLJ 519;

Low Kian Boon & Anor v Public Prosecutor [2010] 4 MLJ 425;

Adiswaran a/l Tharumaputrintar v Public Prosecutor and other appeals [2014] 3 MLJ 228;

R v Turnbull [1976] 3 ALL ER 549;

Balachandran v Public Prosecutor [2005] 1 CLJ 85;

Public Prosecutor v Mohd Bandar Shah Nordin [2008] 4 CLJ 859;

Munusamy Vengadasani v PP [1987] CLJ (Rep) 211;

Sunny Ang v PP [1966] 2 MLJ 195.