Mohd Aminuddin bin Mohd Yasin, Zuhairul Effendy bin Zualkafli v Pendakwa Raya (R.06A(M)-4-03/2017 dan R-06A(M)-6-03/2017)

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1 DALAM MAHKAMAH RAYUAN MALAYSIA PUTRAJAYA [BIDANG KUASA RAYUAN] MAHKAMAH RAYUAN JENAYAH NO. R-06A(M)-4-03/2017 DAN NO. R-06A(M)-6-03/2017 [RAYUAN JENAYAH PERLIS NO. 46B-01-11/2014]

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(1) the trial Judge’s failure to properly consider the Defence evidence; and

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(2) the Prosecution’s failure to prove their case beyond reasonable doubt. Regarding (1): the trial Judge’s failure to properly consider the defence evidence [28] The Appellants relied on the Court of Appeal decision in Jitweer Singh a/l Ojagar Singh v Public Prosecutor [2016] 4 MLJ 525 where similar to the present case, the High Court in Jitweer had initially ruled that the prosecution had failed to prove a prima facie case. Upon appeal to the Federal Court, an order was made for the defence to be called. Subsequently, the judge, after hearing the defence, found the accused guilty and sentenced him to death. The accused appealed to the Court of Appeal. [29] In Jitweer, the Court of Appeal, inter alia, stated: “…At the outset, it was asserted by learned counsel that the learned judge erred in relying on the specific conclusions of the Federal Court to conclude that the cause of death of the deceased was homicidal without considering the defence case on its merits. The learned judge appeared to take the position that the evidence of PW5 cannot be reconsidered as the Federal Court was satisfied beyond all reasonable doubt that the cause of death was not accidental, not suicidal but homicidal. [30] In this connection, we find the criticism to be legitimate as the learned judge appeared to have unnecessarily constrained herself to the findings of the Federal Court and in fact may not have had a proper appreciation of such findings… 8 [31] We should also add that the Federal court was only tasked with determining whether a prima facie case had been established against the accused on the charge of murder. In this regard, the Federal Court was satisfied that the ingredients of the charge had been made out beyond all reasonable doubt. This was a purely prima facie finding at the end of the prosecution case and as the Federal Court had also pointed out, such a prima facie case would warrant conviction if the accused elected to remain silent.” (emphasis added) (per Harminder Singh JCA, at pages 538 – 539). [30] We are in total agreement with the principle stated in Jitweer (supra), that where an appellate court has ordered the trial judge to call for the defence, the trial judge ought to proceed to hear the defence and make his/her findings, and not be unnecessarily constrained by the findings of the appellate court. [31] At this juncture, it is appropriate that we set out the following s.180, 181 and 182A of the Criminal Procedure Code (“CPC”) which are the governing provisions in this case: “180 Procedure after conclusion of case for prosecution

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(1) When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused.

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(2) It the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal.

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(3) If the Court finds that a prima facie case has been out against the accused on the offence charged the Court shall call upon the accused to enter on his defence.

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(4) For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence 9 proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction. 181 Defence

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(1) When the accused is called upon to enter on his defence he or his advocate may then open his case, stating the facts or law on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution. He may then examine his witnesses, if any, and after their cross-examination and re-examination, if any, may sum up his case: Provided always that if any accused person elects to be called as a witness, his evidence shall be taken before that of other witnesses for the defence. Provided also that any accused person who elects to be called as a witness may be cross-examined on behalf of any other accused person.

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(2) The accused shall be allowed to examine any witness not previously named by him under the provisions of this Code if that witness is in attendance.”; “182A Procedure at the conclusion of the trial

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(1) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.

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(2) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find and accused guilty and he may be convicted on it.

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(3) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall record an order of acquittal”. [32] As submitted by the learned DPP, when the Court of Appeal remitted the present case to the High Court for the defence to be called, the guiding principle to be followed is the one laid down by the Federal Court in Ouseng Sama-Ae v Public Prosecutor [2010] 6 CLJ 416: 10 “[21] …it is elementary that once the Court of Appeal (in the earlier appeal) had overruled the findings and rulings of the learned trial judge made at the close of the case for the prosecution and had instead made a finding of possession of cannabis, had invoked the presumption of trafficking under s.37(da)(vi), and had ordered the learned trial judge to call for the defence on the original charge of trafficking, in such a situation, whatever findings and rulings of the learned trial judge expressed earlier at the close of the prosecution stage, to the extent that they had been expressly or impliedly contradicted or overruled by the Court of Appeal, as a matter of law, are now no longer of any significance when he proceeded to hear the defence; and he must at continued hearing stage discard those findings and rulings that he had earlier made. He (as well as the parties before him) must now have due regard to the findings and rulings of the Court of Appeal as if those findings and rulings of the Court of Appeal had been made by the learned trial judge himself at the close of the case for the prosecution. This being the legal position, it is therefore wrong in law to say that the present grounds of judgment of the learned judge is in conflict with his earlier grounds of judgment”. [33] We observe that in the present case, the learned Judge had adopted the correct approach. When the case was remitted to his Court, the learned Judge, on the basis that the Prosecution had established a prima facie case, had proceeded to hear the defence and to determine whether the defence has raised any reasonable doubt on the Prosecution case. [see paragraphs 4, 5, 7, 31, 32, 33 and 36 of the Judgment of the High Court (“Judgment”)]. 11 [34] The Appellants submitted that the learned Judge ought to apply the maximum evaluation test. The test for whether the Prosecution has established a prima facie case is whether the Court can be satisfied that the Prosecution has proved its case beyond reasonable doubt. In this case, where the Accused has elected to call for their defence, the Court is required to re-assess all of the evidence again when determining the guilt of the Accused. [35] After a careful scrutiny of the Judgment, we are satisfied that the learned Judge in the present case did apply the maximum evaluation test as propounded by the Federal Court in Balachandran v Public Prosecutor [2005] 2 MLJ 301 where Augustine Paul JCA (as he then was), in delivering the judgment of the Court, at page 316 stated: “[23] As the accused can be convicted on the prima facie evidence it must have reached a standard which is capable of supporting a conviction beyond reasonable doubt. However it must be observed that it cannot, at that stage, be properly described as a case that has been proved beyond reasonable doubt. Proof beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt the other is the evidential burden on the accused to raise a reasonable doubt. Both these burdens can only be fully discharged at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by s 182A(1) of the Criminal Procedure Code. That would normally be the position where the accused has given evidence. However, where the accused remains silent there will be no necessity to re-evaluate the evidence in order to determine whether there is a reasonable doubt in the absence of any further evidence for such a consideration. The prima facie evidence which was capable of supporting 12 a conviction beyond reasonable doubt will constitute proof beyond reasonable doubt.” (see paragraph 25 of the High Court Judgment). Regarding (2): the Prosecution’s failure to prove their case beyond reasonable doubt [36] From his Judgment, we note that the learned Judge had carefully considered fully the following defence of each Appellant (see paragraphs 8 to 24 and paragraphs 29 of the Judgment): The defence of the 1st Appellant [37] On 29.10.2014, the 1st Appellant was on duty as the controller for the lock-up. At about 9.30 pm on the same day, he was told by one of the detainees at the lock-up that the deceased was sick and could not walk (“sakit dan kaki tidak boleh berjalan”). [38] The 1st Appellant went back to the office outside the lock-up at about 9.45 pm. The 2nd Appellant from the operations division came to have a chat with the 1st Appellant. The 1st Appellant informed the 2nd Appellant that a detainee, i.e. the deceased, complained of being sick. The 2nd Appellant told the 1st Appellant to take the deceased out from the lock-up to go to the pantry to bathe him. Since the deceased could not walk, the 1st Appellant asked two of the detainees to assist the deceased to go out of the lock-up. The 1st Appellant then accompanied the two detainees, the deceased, together with Megat (SP25) to the pantry. [39] At that time, the 2nd Appellant took a broomstick out of the lock-up to go to the pantry. Both the detainees were not handcuffed. When they arrived at the pantry, the 2nd Appellant went into the pantry, followed by the two detainees and the deceased. The 1st Appellant and Megat waited 13 outside the pantry. The pantry door was not closed. The 1st Appellant then called the two detainees to come out and said “Mai keluar sat lagi dengan hangpa-hangpa basah”. The 1st Appellant and Megat accompanied the two detainees back to the lock-up leaving the 2nd Appellant with the deceased in the pantry. [40] While half way to the lock-up, the 1st Appellant decided to go back to the pantry, and he told Megat to take the two detainees to the lock-up. When he arrived at the pantry again, the 1st Appellant saw the deceased shivering with cold after being bathed with his clothes on. The 2nd Appellant just looked at the deceased in that situation. Later Megat came back to the pantry. At that time, the 1st Appellant and Megat were at the front door of the pantry. [41] After that, the 2nd Appellant left the pantry. He requested Jamilah (SP14), who was close by, to give the deceased some clothes for him to change into. Jamilah gave the clothes to the 1st Appellant who passed the clothes to the 2nd Appellant. The 2nd Appellant gave the clothes to the deceased and asked the deceased to change into those clothes. After the deceased had done so, the 1st Appellant, together with the 2nd Appellant and Megat, accompanied the deceased to the lock-up. The deceased was told to enter the computer room. After that, the 1st Appellant saw the 2nd Appellant taking a drink and giving it to the deceased. The 1st Appellant saw that the deceased was shivering with cold. [42] After that, the 1st Appellant accompanied the 2nd Appellant and Megat and took the deceased back to the lock-up. When the 1st Appellant was locking the lock-up, the 2nd Appellant asked the other detainees “Ada 14 siapa-siapa lagi sakit tak?”. Most of the detainees replied “Tak ada, tak ada”. Some of the detainees replied “Ok tuan”. After locking the lock-up, the 1st Appellant, the 2nd Appellant and Megat left the lock-up. [43] The 1st Appellant stated that on that night, he did not at any time punch the left shoulder and kick the left leg of the deceased. The evidence of the Prosecution to that effect is not true at all. The defence of the 2nd Appellant [44] On 29.10.2014 at about 9.00 pm, the 2nd Appellant was directed by the Head of Intelligence and Operations Division to arrange for an operation at 10.00 pm. [45] Since he had time, about 9.30 pm, the 2nd Appellant went to the lock-up unit just to have a chat. There were about seven people there namely, the 1st Appellant, Megat (SP25), Abang Relee, Jamilah (SP14) and three male Immigration officers whose names the 2nd Appellant did not know. They all chatted while watching the television. [46] During the conversation, the 1st Appellant informed the 2nd Appellant that there was a detainee (the deceased) who was not well and the 1st Appellant would take the deceased to hospital. The 2nd Appellant told the 1st Appellant to take the deceased out to go to the pantry in order to bathe the deceased first. After that, the 1st Appellant took the key to the lock-up to first open the main door. Then the 1st Appellant went into the lock-up at the end. The 1st Appellant opened the lock-up door to take the deceased out. The 1st Appellant told the deceased “mai keluar”. The 2nd Appellant and Megat were behind the 1st Appellant. 15 [47] The deceased could not walk. The 1st Appellant told two detainees to assist (“menolong memapah”) the deceased to come out of the lock-up. The 2nd Appellant was aware that he had to be careful. So he took a broomstick which was in the lock-up in preparation in case the deceased, who was not handcuffed, did anything. [48] The 1st Appellant locked the lock-up door and walked towards the pantry since there was a sink and water there and it would be easy to bathe the deceased. While accompanying the deceased, who was assisted by two detainees, the 2nd Appellant walked infront of them all, carrying the broomstick, whilst the 1st Appellant and Megat walked at the back. [49] When they arrived at the pantry room, the 2nd Appellant opened the pantry door, entered the pantry and placed the broomstick next to the sink. The 2nd Appellant opened the pipe water and filled the pail with water. The 2nd Appellant told all of them to go inside. The 1st Appellant called the two detainees to bring the deceased into the pantry and directed the deceased to be placed at the end corner of the pantry. The 2nd Appellant then told the two detainees to go out from the pantry room. The first Appellant and Megat took the two detainees to go back to the lock-up. [50] The 2nd Appellant did not close the door of the pantry room and this means that the situation inside could be seen. The deceased at that time was conscious and leaning against the wall. The 2nd Appellant proceeded to take the water and bathe the deceased with his clothes on. The 2nd Appellant’s clothes got wet and he went out to take off his jacket. Then the 2nd Appellant went back to continue bathing the deceased. Suddenly, 16 the deceased made a lot of noise (“membuat bising”) and the 2nd Appellant told him to keep quiet. [51] The 2nd Appellant saw the deceased trying to get up. The 2nd Appellant also told the deceased to get up, and the deceased slowly got up and leaned against the wall. After that, the 2nd Appellant told the deceased to walk front and back for the purpose of confirming whether the deceased could walk or not. Since the deceased’s clothes were wet, the 2nd Appellant went to the door and asked Jamilah (SP14), who was close by, to give him some clothes for the deceased to change into. Jamilah came with the clothes and gave them to the 1st Appellant who passed them to the 2nd Appellant. The 2nd Appellant gave the clothes to the deceased. The deceased put on those clothes by himself while the 2nd Appellant stood infront of the door to the pantry and chatted with the 1st Appellant and Megat, who had come back to the pantry after taking the two detainees back to the lock-up. [52] After the deceased had changed his clothes, the 2nd Appellant, together with the 1st Appellant and Megat, accompanied the deceased to the lock-up unit, and told the deceased to go into the computer room. After that, the 2nd Appellant stood infront of the deceased, gave him some water to drink and asked him if he was still sick/had pain or not (“ada sakit atau tidak”). The deceased replied “sudah ok”. After that, the 2nd Appellant accompanied the 1st Appellant and Megat to take the deceased back to the lock-up. When the 1st Appellant was locking the lock-up, the 2nd Appellant asked the other detainees “ada siapa-siapa lagi sakit tak?”. Most of them replied “tak ada, tak ada”. Some of the detainees replied “ok tuan”. 17 [53] After locking the lock-up, the three of them left the lock-up. The 2nd Appellant was not sure who closed the main door of the lock-up unit. He then went back to the office to continue with his operation duty that night. The 2nd Appellant stated that that night he only bathed the deceased at the pantry. He did not punch the stomach of the deceased several times. The Prosecution’s evidence to that effect is not true at all. [54] After considering the defence of the respective Appellants, the learned Judge found that the defence is one of bare denial. Both Appellants denied beating or injuring the deceased. In view of the defence of bare denial, and going on the basis that a prima facie case has already been proved by the Prosecution against the Appellants, we are of the opinion that the learned Judge was not plainly wrong when he found that the defence of the Appellants did not raise any reasonable doubt on the Prosecution case. [55] Learned counsel for the Appellants submitted that based on Jitweer’s case (supra) the learned Judge erred by not re-evaluating the evidence of the Prosecution in regard to the following: The medical evidence of SP33 and SP39 [56] SP33: The alleged incident took place on 29.10.2014 at around 10.00 pm. SP33 was the doctor who examined the deceased at 2.45 pm on the day after the alleged incident on 31.10.2014. SP33, in his cross-examination, stated that he examined the deceased by touching him. He held the left shoulder of the deceased but he did not find any injury that was doubtful (“kecederaan yang meragukan”), or any swelling. He also did not find any 18 swelling on the deceased’s private part but he could feel that it was hot (“panas”). [57] SP39: SP39 was the doctor who conducted the postmortem on the deceased. In his report (P63), he stated that the deceased’s “soft tissue injuries were probably 1-3 days old at the time of his death”. Upon cross-examination, he stated that from the point of probability (“kemungkinan”), based on evidence, he could not exclude the possibility of the injury having occurred in 4 days, but probably not in 7 days. He said that 7 days is an extreme example, and 4 days can still be possible but if it is 5 days, it is already difficult (“sudah susah”)(to have been suffered). [58] The deceased died on 4.11.2014 at 2.20 am. Considering that the alleged incident took place on 29.10.2014 at around 10.00 pm, learned counsel for the Appellants submitted that the alleged incident being the cause of the deceased death is not consistent with the expert opinion. Even though this issue was not reconsidered by the learned Judge, we are of the view that from 29.10.2014, 10.00 pm to 4.11.2014, 2.20am, it was only 5 days, 4 hours and 20 minutes, which though 5 days according to SP39 is “sudah susah”, is however not extreme as in the case of 7 days, and therefore cannot be ruled out in this case. SP39’s measure of probability or possibility is based on his own estimate or judgment which cannot be an exact science. The overall consideration should be that, after the alleged incident on 29.10.2014, there was no evidence that any other person or a third party had injured the deceased. What is left is therefore SP39’s postmortem findings that the deceased died of “multiple blunt force trauma due to soft injuries” which, in the circumstances of the 19 case, irresistibly give rise to the strong inference that the injuries would have been caused by the Appellants. [59] In our considered opinion, the prima facie case which had been established by the Prosecution was not rebutted in any way by the defence of bare denial by the Appellants. In fact, contrary to what the Appellants contended that the 2nd Appellant only took a broomstick out from the lock-up to protect himself since the deceased was not handcuffed, we find that the CCTV recordings showed not a broomstick, but a long solid-looking wooden baton (see the pictures in Record of Appeal Jld 3 pages 645 and 646). This shows the lack of credibility of the two Appellants. The deceased’s two dying declarations [60] We note that the learned Judge did not consider the law against hearsay in respect of a dying declaration. Nevertheless, s.32(1)(a) of the Evidence Act 1950 as stated below, is an exception to the law against hearsay where the former statement of a person, who is dead, as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, is relevant: “Statements by persons who cannot be called as witnesses Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

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(1) under the 2nd limb of s.304(a), i.e. where “the act by which the death is caused is done with the intention” “of causing such bodily injury as is likely to cause death”, in which case the 24 punishment would be imprisonment which may extend to thirty years, and to fine; or

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(2) under s.304(b), i.e. where “the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death”, in which case the punishment would be imprisonment which may extend to ten years, or fine or both. [71] Going by the totality of the evidence adduced, we find that there is sufficient evidence to prove that both Appellants did commit the act of hitting or assaulting the deceased with the knowledge that it is likely to cause death, or to cause such bodily injury as is likely to cause death. However, it is clear that there was no intention to cause death. It is obvious that the Appellants hit the deceased to discipline him for complaining of being in pain. The acts committed by the Appellants would constitute and tantamount to an offence which falls under s.304(b) of the Penal Code, and not one under s.302 of the Penal Code. Mitigation [72] We have considered the following mitigating factors for the Appellants: 1st Appellant: From Johor; 36 years old; in the Immigration service from 2009, now an Immigration officer of grade KP19; no problem with the law or discipline in work; married with two children, both girls ages 12 and 18 years old; arrested on 7.11.2014; acquitted and discharged by the High Court on 1.10.2015, and arrested again from 20.10.2016 till now; with this conviction he would lose his source of income as an Immigration officer. 25 2nd Appellant: 36 years old; in the Immigration service from 2009; now an Immigration officer of grade KP19; previously married, but because of this case and the stress on the marriage, he is now divorced; has two children, a boy and a girl ages 12 and years old; both children are now with his ex-wife; the rest of his mitigating factors are the same as the ones for the 1st Appellant. [73] We do not think that the mitigating factors regarding the personal lives of the two Appellants can in any way detract from the gravity and seriousness of the offence committed. The fact remains that a Bangladeshi detainee, the deceased, has now died as a result of the heinous crime of these two Appellants who are Immigration officers. [74] We are mindful of the fact that the maximum punishment under s.304(b) is imprisonment of ten years. We also bear in mind other cases where for a similar offence the sentence could be lower. However, we also considered the recent case of Soh Chew Tong v Public Prosecutor, Case No. 05-261-11/2015(P) where the Federal Court on 25.1.2018 had imposed the maximum sentence of ten years imprisonment, and taking into account the period of detention and imprisonment before that, when the charge under s.302 of the Penal Code was reduced from murder to culpable homicide not amounting to murder under section 304(b) of the Penal Code. Considering that the evidence in the present case can justify even a conviction for a charge under s.304(a) where the maximum punishment is 30 years, we are of the firm and grave opinion that the offence of the two Appellants deserves, and in fact justice demands that the maximum sentence of ten years imprisonment under s.304(b) of the Penal Code should be meted out, and nothing less than that. We, 26 however, took into consideration the period of arrest and excluded the period when both Appellants were released after the acquittal and discharge granted by the High Court. [75] Based on the above considerations, we therefore ordered accordingly. Dated : 14 December 2018 YEOH WEE SIAM Judge Court Of Appeal, Malaysia Putrajaya Deputy Public Prosecutor Mohd Dusuki Bin Moktar Dhiya Syazwani Izyan Binti Mohd Akhir Attorney-General’s Chambers, Malaysia Counsel for the 1st and 2nd Appellants Muhammad Shafee Abdullah Rahamathullah Baharudeen Rahmat Hazlan Messrs Shafee & Co