Mohd Azmin Bin Lidin v Public Prosecutor (S-05(M)-292-06/2018)

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. S – 05(M) – 292 – 06/2018 BETWEEN MOHD AZMIN BIN LIDIN … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In The Matter of High Court in Sabah and Sarawak at Kota Kinabalu CRIMINAL TRIAL : NO. BKI-45B-1/6-2017 BETWEEN PUBLIC PROSECUTOR AND MOHD AZMIN BIN LIDIN CORAM: VERNON ONG LAM KIAT, JCA YAACOB HAJI MD SAM, JCA YEW JEN KIE, JCA 25/09/2023 16:05:32 S-05(M)-292-06/2018 Kand. 38 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 GROUNDS OF JUDGMENT Introduction [1] This is an appeal against the decision of the High Court at Kota Kinabalu in convicting the appellant for an offence of murder under section 302 of the Penal Code. The appellant was sentenced to death and the appeal before this court is against the conviction and sentence. [2] The charge reads: “That you, on 15th December 2016, at about 3:30 am until 4:30 am, outside Siam Thai Bar, Jalan Asia City, in the District of Kota Kinabalu, in the State of Sabah, did commit murder by causing the death of one Yaacob bin Nasran (Male/18 Years, Eurasian, NRIC No: 980525-12-5487) and that you have thereby committed an offence punishable under section 302 of the Penal Code.” [3] We have heard the appellant’s appeal against the conviction. We dismissed the appeal and affirmed the conviction and sentence. We now proceed to give our reasons for upholding the conviction and the sentence. Prosecution’s case [4] On the 14th December 2016 at about 11.30 pm, the deceased (Yaacob bin Nasran), Nabiel, Nana, Habil, Shira, Cheta and Raymond **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Wong (PW14) went to BED Night Club to have a good time. At about 2.20 am, the group left the night club and proceeded to Siam Thai Bar to continue with their night out activities until wee hours of the morning. [5] Around 3.30 am, while the deceased, PW14 and his friends were drinking in Siam Thai Bar, one Arni binti Bakar (PW13) who worked as a cashier at the bar asked her ex-husband Amiruddin bin Bacho (Amir) and his friends who came to the bar earlier, to leave. A misunderstanding then ensued as her ex-husband and his friends thought that they were being chased out by PW13. This prompted Amirudin’s friend, Andi Surady bin Tatta (Adli) to slap PW13 on her right face in front of Siam Thai Bar. Due to this, there was a big commotion outside the bar and shutter of the front door had to be closed. [6] It was around that time the deceased, PW14 and his friends decided to leave for home. They exited the bar through the back door. On their way to the carpark, they passed through the fighting scene. On of them tried to calm down the men (Amir and Adli) but their intention was misunderstood as trying to meddle with the situation. The group then left the scene. Adli, who was feeling dissatisfied with the group for underestimating his manliness got himself into fight with the deceased and his friends. [7] Omar Khan bin Hussin (PW11) and the accused (Mohd Azmin bin Lidin) were working as bouncers of Siam Thai Bar when the fighting occurred. They were escorting their employer to the carpark at that time. On their way back to the bar, PW11 and the accused tried to dissolve the scuffle between the group and Adli. Out of nowhere, PW11, PW14, Hermanshah bin Marajeh (PW10), Nur Aini binti Abu Bakar (PW12) and **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 PW13 saw the accused slashed the deceased and his two other friends with a samurai sword (Exihibit P9). [8] The deceased being seriously injured, retreated away from the scene to a nearby rectangular plant pot and died at that spot. [9] ASP Khairul Shah bin Peri (PW19) who is the investigating officer in this case went to the crime scene together with Insp Mustapha bin Ramble, Kpl Jimmy bin Sumil and Kpl Robert Jugah Anak Lujing and saw the deceased death body outside Asia City Building, not far from Siam Thai Bar. [10] Nasran (PW9), farther of the deceased came to the mortuary on 16th December 2016 at about 2.15 pm to identify the deceased as his son. [11] Post mortem was conducted on the 16th December 2016 by Dr Jessie Hiu (PW2) the pathologist on the body of the deceased after it was duly identified by the deceased’s father. The cause of death of the deceased as certified by PW2 was hypovolemic shock due to chop wounds on the head and neck as transpired in Exhibit P73. [12] On the 20th December 2016 at about 10.30 am, an identification parade was conducted by Insp. Palaninathan a/l Pathmanathan (PW17). Seven witnesses were called upon and four of them were able to identify the appellant who was at the fighting scene. Only one witness (PW14) who is able to identify the appellant as the assailant who attacked and slashed the deceased. **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Decision of the High Court at the close of prosecution’s case [13] The learned trial judge in her judgment set out the necessary ingredients that the prosecution has to prove against the appellant in order to sustain a charge under section 302 of the Penal Code. [14] The ingredients are :

1. What were the bodily injury/injuries that were present on the deceased’s body;

2. What were the nature of the injury/injuries;

3. Were the injury/injuries sufficient in the course of nature to cause death; and

4. Did the accused intentionally cause the injury/injuries on the deceased. [15] On this issues, the learned trial judge made her conclusion as follows (see pp 17, 18, 19, 20, 21 of the Appeal Record Vol. 1): “Element 1 : What were the bodily injury/injuries that were present on the deceased’s body? Post-mortem on the deceased Exhibit P73 shows that there were 22 injuries identified by PW2 on the deceased of which 4 injuries **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 were identified to be caused by a sharp and heavy object such as parang or sword. [See Exhibit P73, Witness Statement PW2]. Element 2 : What were the nature of the injury/injuries? According to PW2, the chop wounds on the left side of the deceased’s head and another on the left side of the deceased’s neck caused severe bleeding and loss of blood leading to his demise. The chop wounds were fatal in nature and sufficient in the ordinary cause of nature to cause death [see Witness Statement of PW2 para 15-16]. Element 3 : Were the injury/injuries sufficient in the ordinary course of nature to cause death. PW2 explained that there were two chop wounds, one on the left side of the deceased’s head and the other one was on the left side of his neck. The chop wound on the left side of the head measuring 8 x 2.5 cm cut the left temporalis muscle and left temporal bone of the skull while the chop wound on the left side of the neck measuring 9.5 x 4 cm cut the left internal carotid artery completely, submandibular salivary, anterior neck muscle, parasternal muscle and mandible bone. She further explained that with this type of injury will cause loss of blood volume from the body as a result of severe bleeding. This led to reduced blood supply to vital organs and tissue death. The chop wounds were fatal in nature and it is indeed sufficient in the ordinary course of nature to cause death. This was crucial evidence and was not challenged in cross-examination. The effect in law of such failure was that the evidence was deemed to **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 be accepted. [See Exhibit P73 page (5) and Witness Statement PW2 para 14]. Element 4 : Did the Accused intentionally cause the injury/injuries on the deceased? …. In this case, there is no dispute that the deceased, Yaacob Bin Nasran had died. There was a report lodged in respect of his death (Exhibit P99). There is also no dispute that the deceased died as a result of his injuries and the cause of death was due to the chop wouds on the left side of the deceased’s head and on the left the deceased’s neck. [Exhibit P73}. The question here is whether the injuries that caused Yaacob’s death was due to the act by the accused? PW10 – Hermanshah Bin Marajeh According to the defence’s argument, PW10’s evidence is hazy and cannot be relied upon, however if we look through his evidence, it was clear that he saw the accused holdings and swinging the sword towards the group and when he was being crosses by the defence counsel, his answer were persistent. I don’t see any reason why his evidence cannot be relied upon. … PW14 – Raymond Wong The defence contended that this witness, PW14 is not reliable ad he could not identify the assailant and does not know the person who carried the sword which slashed the victim. **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 In my view, this is simply not true as this witness is very sure on the identity of the assailant as he had identified the accused in the identification parade [see Exhibit P106,Page 9 para 7] and he also once again identified the assailant in court. Examination in Chief [page 219-220, para 4739-4758] Q: Then what happened? A : I fell down and when I gained consciousness and then I remembered Nana trying to tell me to wake up and as I stood up I remembered walking to my left towards the road and seeing Yaacob being slashed by this man Q: “By this man” can you identify him A: yes Q: is he in court now? A :yes Q: can you point out where he is A:*witness points to the accused sitting in the dock*. Q: Did you see the accused use anything to slash Yaacob? A: I saw something shining while he was doing the slashing action and the man was heading towards the bush and he was slashing at Yaacob as they reached the bush he started aiming for Yaacob’s legs … From the testimonies by PW10, PW11, PW12, PW13 and PW14, they had all positively testified that it was the accused who had slashed the deceased using a sword (Exhibit P9). PW10 is a regular patron of Siam Thai Bar, who had no interest with the accused or other bouncer by the name of Omar. He had **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 identified the accused as the assailant. PW11, PW12 and PW13 are colleagues of the accused and they had identified the accused as the assailant as well. PW14 on the other hand had identified the accused in an identification parade conducted by PW17 and again he identified the accused in court. All these witnesses came from different groups but yet they are able to corroborate the story with each other. Thus, there is no doubt that the accused is the assailant in this case.” [16] Having considered the evidence, the learned trial judge made the following findings (pp 33 – 34 Appeal Record Vol.1): “The case for the prosecution had been constructed based on various evidences gathered from the relevant prosecution witnesses. The requirement of s. 300(c) of the Penal Code has been successfully fulfilled and proven by the Prosecution that the accused has intended to inflict the fatal injuries with the use of sword on the deceased’s body and this attract an inference that those injuries were indicators of proving the accused’s intention in question inferred from his own actions by using a sword unnecessarily against a group of defenceless teenagers on the pretext of dissolving a fight knowing that it is dangerous weapon and likely to cause death. A prima facie case has been established against the accused under S. 302 of the Penal Code. On account of the above, the court had therefore ordered the accused to enter his defence to the charge preferred against him.” **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [17] At the close of the prosecution’s case the learned trial judge found that the prosecution had made out a prima facie case and called upon the appellant to enter his defence. The appellant’s defence [18] The appellant elected to give evidence on oath. His version of story is that on that on that night, he saw Adi, Amir and the custom officers fighting. He informed this to Omar. He also told him to warn Adi, Amir and the custom officer as they are Omar’s friends. One of the cashier by the name of Manja (PW13) was seen shouting at them “Pulanglah kamu jangan buat kacau di tempat saya bekerja”. Her action angered Adi and Amir and due to this, she was houled up into a fight. When the fight got worse, PW12 and PW11 ran back to Siam Thai Bar. PW12 pulled down the shutter. When Amir and Adi came towards him (the appellant), he went back inside the bar and closed the shutter. His boss, Billy came out and enquired about the commotion outside his bar and he had instructed them to call the police. The remaining customers including the victim and his group proceeded to leave the pub using back door. Omar and the appellant then escorted Billy to his car. On his way back to the pub, he saw Adi, Amir the victim and his friends in a scuffle. Omar then told the appellant that they should be going to the police station and they left. They left using Omar’s car and there was a guy with a long hair, a friend of Omar with them. On their way to the police station. Omar said to his long-haired friend “saya sudah beberapa kali melarang kamu tidak mahu dengar mahu mencabar saya, kena lah kau”. The appellant was also warned by Omar not to open his mouth. While on their way to the police station, Omar was seen wiping his right hands on his pants. It was only in the police station that he saw blood on his hands. It was only the next day **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 he received a call from Omar instructing him to go to the police station to assist with the police investigation as the fighting on that night before had turned into a murder case. He then went to the police station as instructed and was immediately arrested. He denied killing the deceased. He shifted the blame on Omar (PW11). [19] Having considered the defence of the appellant and the evidence in totality, the learned trial judge found that the defence has failed to raise reasonable doubt against the prosecution’s case and she was satisfied that the prosecution had proved the charge against the appellant beyond reasonable doubt and convicting the appellant on the charge under s. of the Penal Code. The Appeal [20] In his petition of appeal, the appellant raised several issues. His petition stated these (verbatim):

1. The learned trial judge erred when her Ladyship convicted the appellant for the offence of murder.

2. The learned trial judge erred when her Ladyship did not conduct a maximum evaluation on the evidence adduced at prosecution stage.

3. The learned trial judge erred when her Ladyship failed to appreciate that there was in fact no offer to the defence in respect of Amirudin Bin Bacho as the prosecution could not secure his presence. The learned judge should have invoked s. 114(g) of the Evidence Act against the prosecution. **Note : Serial number will be used to verify the originality of this document via eFILING portal 12

4. The learned trial judge erred when her Ladyship failed to adequately appreciate the defence case.

5. The learned trial judge erred when her Ladyship failed to consider whether it was a case of culpable homicide not amounting to murder. [21] However, before us the focus of the arguments of the appellant were on these two grounds:

1. The learned trial judge erred when her Ladyship failed at the end of the defence case to ask herself whether this was a case of culpable homicide not amounting to murder; and

2. The learned trial judge erred when her Ladyship failed to criticise the prosecution for not offering Amirudin Bin Bacho to the defence. Appellant’s submission [22] It was contended that the trial judge erred when she failed to ask herself whether it was a case of culpable homicide not amounting to murder. It was argued that despite the rejection of the defence, it was still incumbent that the trial court ought to have addressed its mind on this possible defence available to the appellant based on the following factors:

(ii) the absence of motive and that both the appellant and the deceased did not know each other. [23] Thus, it was contended that the appellant had not received a fair trial. The case of Kenneth Fook Mun Lee V PP [2006] 4 CLJ 359; R v Coutts [2006] UKHL 39; Pemble v The Queen [1971] 124 CLR 107 were cited to support the above proposition. [24] For the second ground, it was contended that the non-offer of Amirudin Bin Bacho to the defence had prejudiced the appellant. Amirudin Bin Bacho’s name was listed in prosecution witnesses’ list as witness number 13. Amiruddin Bin Bacho was offered by the prosecution to the defence but was not present and a warrant of arrest had been issued against him. It was submitted that the prosecution cannot offer someone when that someone is not found or located. It was argued that Amirudin bin Bacho is important the defence in the following ways:

(ii) Amir was also arrested as confirmed by PW19;

(iii) Amir if called could corroborate the appellant’s version that the appellant was not the culprit. [25] The case of PP v A Rashid bin Ismail [2001] 1 AMR 1149; Masoumeh Gholami Khaveh v PP [2013] 5 CLJ 59; Kobra Taba Seidali **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 v PP [2014] 2 CLJ 12; Phang Chee Meng v PP [1992] 1 MLJ 137 were cited to support the above proposition. Our decision [26] It is trite law that being an appellate court it is our task in this case to review and consider the decision of the trial judge. We need to determine whether on evidence adduced by the prosecution the defence was rightly called. If so, whether the appellant in his defence had raised a reasonable doubt in the prosecution’s case. And even if it did not it is still essential that to sustain the conviction it must be determined whether the prosecution had proved its case beyond reasonable doubt. In other words, 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. The falsity of the defence does not relieve the prosecution from proving the prosecution case beyond reasonable doubt. [27] We are guided by the authority of Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16, where Sharma J stated that: “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 the evidence.” [28] Accordingly, we will proceed to consider each of the points relied upon during the arguments before us. It is expedient to first dispose of this **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 first ground raised by counsel. However, we will of course give our consideration of the issues raised in the petition of appeal. [29] With regard the first ground, having perused the records appeal and notes of proceeding, we found that the learned trial judge indeed did not doubt the competency of the pathologist (PW2) who conducted the post mortem on the body of the deceased and prepared the report tendered as Exhibit P73. In the post mortem report, the caused of death of the deceased was certified due to hypovolemic shock due to chop wounds on the head and neck. There were 22 injuries identified by PW2 on the deceased of which 4 injuries were identified to caused by a sharp and heavy object such as parang or sword. The chop on the left side of the deceased’s head measuring 8 x 2.5 cm and another on the left side of the deceased’s neck measuring 9.5 x 4 cm cut had caused severe bleeding and loss of blood leading to his death. The chop wounds were fatal in nature and sufficient in the ordinary course of nature to cause death. This crucial evidence was not challenged in cross-examination. The effect in law of such failure is that the evidence is deemed to be accepted [see Wong Swee Chin v. PP [1980] 1 LNS 138; [1981] 1 MLJ 212]. As the injuries were sufficient in the ordinary course of nature to cause death, the appellant would be caught by cl.(c) of s.300. The findings was made by the learned trial judge after considering the nature of the injuries sustained by the deceased, the number of wounds and the weapon used. We are satisfied that her Ladyship committed no errors. [30] Learned counsel for the appellant contended that the learned trial judge had failed to consider the issue whether the offence should be of one culpable homicide not amounting to murder under section 304 of the Penal Code instead of convicting the appellant for the offence of murder. **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 We observed that her Ladyship did take into consideration and discuss the distinction and the application of section 299 and section 300 of the Penal Code (see p. 16 Appeal Record Vol.1). Beside her omitted to address her mind specifically on section 304 of the Penal Code, we do not think that the findings and conviction of the appellant under s. 302 of the Penal Code was flawed or wrong. We are satisfied that the defence was rightly called by the learned trial judge at the end of the prosecution’s case. The appellant was positively identified by PW14 and corroborated by four other witnesses (PW10, PW11, PW12 and PW13). SP14 said he saw the appellant struck and slashed the deceased using a sword (Exhibit P9). The learned trial judge accepted that the appellant was positively identified by PW14 in the identification parade and during the proceedings in court. PW2 the pathologist confirmed that the deceased suffered fatal injuries at his left side head and another at his left side neck. The caused of death as certified by PW2 was hypovolemic shock due to chop wounds on the head and neck as stated in Exhibit P73. There were 22 injuries identified by PW2 on the deceased of which 4 injuries were identified to be caused by a sharp and heavy object such as parang or sword (P9). PW2 evidence was not challenged by the defence. [31] The learned trial judge also proceeded to consider the appellant’s version that blamed on Omar (PW11). However, the appellant himself never saw Omar that inflicted those injuries on the deceased. Thus, the learned judge found that the appellant’s version of story was a mere concoction. On the other hand, there were four witnesses who had identified the appellant as the assailant and the person who slashed the deceased. **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [32] It is a settled law that for an offence of murder the mens rea element can be imputed from the injuries inflicted upon a deceased. [33] In Mohd Azam Raja Abdullah v PP [2015] 1 CLJ 1080, Abdul Rahman Sebli JCA (his Lordship then was) stated these: “[17] Intention to cause death is irrelevant where the act fall under this clause. What is relevant is the intention to inflict the particular injury that caused death. In Tan Joo Cheng v. PP [1992] 1 SLR 620 the Supreme Court of Singapore held that where the act falls under s. 300 cl.(c) of the Singapore Penal Code which is pari materia with our corresponding provisions, it would still murder even if the intention was to inflict only relatively minor injury. [18] Whether the injury is sufficient in the ordinary course of nature to cause death within the meaning of cl.(c) of s. 300 is a question of fact for the court to decide. Since however this is in the matter that is in the realm of forensic science, expert medical evidence is necessary to assist the court in coming to a finding.” [34] In Tham Kai Yau & Ors v PP [1976] 1 LNS 159; [1977] 1 MLJ 174, the then Federal Court said this at pp. 176, 177: “The deliberate use of by some men of dangerous weapons at another leads to the irresistible inference that their intention is to cause death. This inference should therefore make it a simple matter to come to a decision as to intention, in any case, such as the present case, where the weapons used by the appellants were **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 deadly weapons and where the person killed was struck more than one blow. …. In the present appeal we think that in view of the nature of the injuries sustained by the deceased and the time and place of incident, there was evidence of an intention on the part of the appellants to cause bodily injury to the deceased.” [35] In Loo Ting Meng v Public Prosecutor [2014] 1 CLJ 188, the Federal Court said this : “By testifying in the manner that he did, and denying seeing the deceased there at all when occupying rooms 105 and 103, all the prosecution’s important strands of evidence remained unaffected and unrebutted. In the circumstances of the case, it is our view that the appellant’s bare denial was no a defence sufficient to cast s reasonable doubt over a host of incriminating evidence that unerringly pointed to his guilt (DA Duncan v Public Prosecutor [1980] 2 MLJ 195).” [36] Having considered the evidence and the grounds of judgment, we find no error committed by the learned trial judge to warrant appellate intervention on this first ground. [37] The second ground of appeal is that the learned trial judge erred when her Ladyship did not invoke the presumption under s. 114(g) of the Evidence Act 1950 against the prosecution’s case is respect of the absence of one Amirudin that was offered by the prosecution to the defence. It was submitted that Amirudin was crucial to the appellant’s **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 narrative and by the prosecution unable to produce Amirudin the appellant had been severely prejudiced and disadvantaged. [38] We have perused the records of appeal. The learned trial judge, in our view, had carefully considered this issue when her Ladyship concluded at pp. 32, 37 of the Appeal Record (Vol.1). This is what the learned judge said: “The defence averred that since another witness by the name of Amir was not called, adverse inference should be drawn under s. 114(g) of the Evidence Act 1950. For this purpose, I think it is important to refer to the then Supreme Court decision in Munusamy v PP [1987] 1 MLJ 492 where Mohamed Azmi SCJ (as he then was) delivering the judgment of the court said at p.494:- ‘It is essential to appreciate the scope of section 114(g) lest it be carried too far outside its limits. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document but material document by any party in possession, or for non-production of not just any witness but an important and material witness to the case.’” [39] The learned trial judge then concluded at p. 33 thus: **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 “In this case I do not find any basis for the allegation. In the first place Amir was not an essential witness to the unfolding of the narrative on which the prosecution case was based. PW19, the IO in this case had also testified that Amir did not witness the attack by the accused towards the deceased. Further, even without Amir’s evidence the prosecution already had sufficient evidence to establish a prima facie case against the accused. Thus, failure to call him as prosecution witness is of no consequence as it did not result in a gap in the prosecution case.” [40] Hence, on the facts and evidence adduced in this case we are satisfied that the learned trial had considered this issue. As alluded earlier there are many prosecution witnesses, namely PW10, PW11, PW12, PW13 had identified the appellant as the assailant and PW14 testified that he identified the person carrying the sword (P9) and slashed the deceased was the appellant. Upon being positively identified the appellant’s defence on the important of Amir collapsed as well. [41] It is settled law that an appellate court should be slow to disturb the finding of facts of a trial judge unless such findings are not supported by the evidence or are against the weight of the evidence. Similarly, when it comes to the credibility of witnesses, a trial court is in a better position to assess their credibility as an appellate court is not in a position to do so. [42] We have considered the defence put up by the appellant. We agree with findings of the learned trial judge that the defence of the appellant is just a mere concoction and denial when tested against the totality of the **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 evidence adduced is difficult to be believed. More importantly it failed to raise any reasonable doubt in the prosecution’s case. Conclusion [43] Having carefully perused the judgment of the learned trial judge and her findings of facts and the application of law, we were satisfied that her Ladyship committed no errors. We were not convinced that the learned trial judge was wrong in convicting the appellant on the charge under s. 302 of the Penal Code. The conviction is safe. [44] In the circumstances, the appeal was dismissed and we affirmed the conviction and the sentence. t.t. (YAACOB HAJI MD SAM) Judge Court of Appeal Malaysia Dated : 13 September 2023. **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 Solicitors/Counsels : Counsel for the appellant: P.J. Perira Ariel Dasan (Messrs P.J. Perira & Co. Advocates & Solicitors 171 Lot A16-01 Lorong Taman Telok Villa 2 Taman Telok Villa, Putatan 88200 Kota Kinabalu Sabah) Counsel for the respondent: DPP Mohd Zain bin Ibrahim (Attorney General Chambers Appellate and Trial Division Putrajaya) Jabatan Peguam Negara 45, Persiaran Perdana, Presint 4, 62100 Putrajaya **Note : Serial number will be used to verify the originality of this document via eFILING portal