Mohd Imran Bin Mohd Ramly & 1 Lagi v Public Prosecutor (J-05(M)-142-04/2017)

(i) bodily injuries present;

(a) the learned trial Judge erred in law and in fact when His Lordship convicted the Appellants of the offence of murder without appreciating the evidence submitted that there was no direct evidence to show that the 1st Appellant and/or the 2nd Appellant had caused the injuries and/or any act which caused injuries to the deceased. The conviction was purely based on circumstantial evidence which was not enough to convict the 1st Appellant and/or the 2nd Appellant; and

(b) the learned trial Judge failed to invoke adverse inference under the provision of section 114 (g) of the Evidence Act 1950 for the failure of investigation of the existence of ‘Kak Maria’, the baby sitter, and for the prosecution to produce her as a witness to give evidence. 10 Our Decision No direct evidence to show that the Appellants had caused the injuries [23] It is trite that intention to kill may be inferred from the surrounding circumstances, including the weapon used, the nature of the injuries inflicted, and the manner in which the injuries were inflicted. The burden of proving this element lies on the prosecution and must be proved beyond reasonable doubt either by direct evidence or may be inferred or concluded from the circumstantial evidence as in the present appeal. It is not in dispute that the evidence in this case is not direct as there were no witnesses who saw any of the Appellants inflicting injury upon the deceased. However, even in the absence of direct evidence, a conviction can be secured through circumstantial evidence (See: Sunny Ang v. Public Prosecutor [1965] 1 LNS 171; Jayaraman & Ors v. Public Prosecutor [1982] 1 LNS 126; [1982] 2 MLJ 306; Public Prosecutor v. Magendran Mohan [2005] 3 CLJ 592. It was undisputed that the prosecution relied on circumstantial evidence and the learned trial Judge had convicted the Appellants based on circumstantial evidence. [24] In Sunny Ang's case (supra) the deceased's body was never found. The Federal Court held: …The second question to which I must draw your attention is that in this case, depending as it does on circumstantial evidence, is whether the cumulative effect of all the evidence leads you to the irresistible conclusion that it was the accused who committed this crime. Or is there some reasonably possible explanation such, for example - was it accident? 11 [25] The mother of the deceased, PW7 had testified that because of a custody tussle between her and the 1st Appellant, the deceased was taken care by the 1st Appellant from September 2013 until the day he died. This was also confirmed by the 2nd Appellant. On the day of the incident it was the 1st Appellant who had brought the lifeless body of the deceased to the clinic. He claimed that he had picked up the deceased from the baby sitter, Kak Maria. However, Kak Maria was not called as a witness to verify that she had indeed taken care of the deceased. [26] PW2, the doctor at the clinic who had examined the deceased when he was brought to the clinic found several bruises on the deceased’s body. So did PW8, the Muezzin/the Imam, who found several bruises on the deceased when he bathed the deceased’s body in preparation for burial. [27] The deceased’s body was taken from the mortuary by the 1st Appellant as he did not want a post mortem to be conducted and wanted the burial of the deceased as soon as possible. The cause of death was not self-inflicted but head injury caused by a blunt object and not due to a fall from a bicycle. The inevitable conclusion therefore is that the death of the deceased was caused by the head injuries sustained by him. [28] The learned trial Judge had correctly applied the principles in Virsa Singh (supra) (Refer to paragraph 62 of the grounds of judgment of the learned trial Judge). To bring the case under section 300 PC the prosecution must establish that:

(i) a bodily injury is present;

(a) the circumstances from which the conclusion of guilt is to be drawn has been established;

(b) the facts so established is consistent with the hypothesis of the guilt; and

(c) circumstances should be of a conclusive nature in that the chain of evidence is complete so as to exclude any conclusion consistent with the accused person's innocence (See Magendran Mohan v. PP [2011] 1 CLJ 805; [2011] 6 MLJ 1, Mazlan Othman v. PP [2013] 1 CLJ 750; [2013] 1 AMR 615; Dato' Mokhtar Hashim & Anor v. PP [1983] 2 CLJ 10; [1983] CLJ (Rep) 101; Chan Chwen Kong v. Public Prosecutor [1962] 1 LNS 22). [31] The trial Judge acknowledged that the evidence is circumstantial as stated in his grounds of judgment: [104] It is not in dispute that the evidence in this case is not direct as there are no witnesses who saw any of the accused inflicting injury upon the deceased. However, even in the absence of direct evidence, a conviction can be secured through circumstantial evidence. [105] Other than the case of Public Prosecutor v. Azilah Hadri & Anor (supra ) already referred to, there is a preponderance of authority that convictions can be obtained by relying upon circumstantial evidence. The Court of Appeal case of Yii Soon Ho v. Public Prosecutor [2014] 1 LNS 386 considered the following main authorities on the subject, namely, Sunny Ang v. Public Prosecutor [1965] 1 LNS 171; Jayaraman & Ors v. Public Prosecutor [1982] 1 LNS 126; [1982] 2 MLJ 306; Public Prosecutor v. Magendran Mohan [2005] 3 CLJ 592; Chan Chwen Kong v. Public Prosecutor [1962] 1 LNS 22; [1962] MLJ 307; Karam Singh v. Public Prosecutor [1967] 1 LNS 65; [1967] 2 MLJ 25; and Chang Kim Siong v. Public Prosecutor [1967] 1 LNS 18; [1968] 1 MLJ 36. 14 [32] The learned trial Judge had taken into consideration the conduct of the 1st Appellant in hastening the burial of the deceased and that the 1st Appellant proceeded with undue haste to lodge a police report (P36) to place on record the fact that the deceased had died of asthma complications in order to obtain the burial permit. He also did not want the deceased to undergo a post-mortem. A conviction based on circumstantial evidence was good in law if the cumulative effect of all evidence lead to an irresistible conclusion that it was the accused who committed the crime. The Supreme Court in Chan Chwen Kong v. PP [1962]1MLJ 307 Thomson CJ observed: That evidence was entirely circumstantial and what the criticism of it amounts to is this, that no single piece of that evidence is strong enough to sustain the convictions. That is very true. It must, however, be borne in mind that in cases like this where the evidence is wholly circumstantial what has to be considered is not only the strength of each individual strand of evidence but also the combined strength of these strands when twisted together to make a rope. The real question is: is that rope strong enough to hang the prisoner? [33] In this instant appeal we can only conclude that the cumulative effect of the evidence led to an irresistible conclusion that the 1st Appellant had without a doubt caused the death of the deceased. [34] As far as the 2nd Appellant was concerned the only evidence that connected her with the deceased is the presence of ‘U’ shaped bite marks on both arms of the deceased. This was the evidence coming from PW10, the orthodontist. According to PW10, the bite marks on the left arm of the deceased corresponded to the crown pattern of the teeth of the 2nd Appellant. It was also PW10's opinion that the force exerted by the bite 15 was with some degree of force which eliminated the possibility that the bite mark was a result of a playful bite or one done out of affection. [35] Although there is evidence from PW10 that the bite marks point to the 2nd Appellant, the cause of death of the deceased was not due to bite marks but the trauma to the head due to a blunt object. We are mindful that the charge against the 2nd Appellant is that of murder. [36] The learned trial Judge acknowledged that the case of the prosecution is based on circumstantial evidence, which the learned trial Judge found that it is sufficiently strong enough to form a conviction against both the appellants for the offence of murder under section 302 of the PC. Although we agree with the findings of the learned trial Judge as far as the 1st Appellant is concerned, however, we disagree with the findings by the learned trial Judge against the 2nd Appellant. [37] We found that there is no evidence, be it direct nor circumstantial, to link the 2nd appellant to the injuries which caused the death of the deceased. It has not been established that the 2nd Appellant stayed/lived with the 1st Appellant or that she was also involved in taking care of the deceased at the material time. [38] It is to be noted that the charge against the 2nd appellant is under section 34, namely common intention to commit murder. The learned trial Judge did not consider this aspect of the charge, and neither was there any findings as to whether the elements of “common intention” was satisfied. 16 [39] As there is no evidence to link the 2nd appellant to the injuries which caused the death of the deceased, and there is no evidence of any common intention of the 2nd Appellant together with the 1st Appellant in committing the act of murder, it is our view that the learned trial Judge had erred in convicting the 2nd Appellant of the charge preferred. The circumstantial evidence relied on by the prosecution in respect of the 2nd Appellant, merely raised suspicion and doubts. It is trite principle of law that suspicion, no matter how grave, is insufficient to form a conviction. Failure to invoke adverse inference under the provision of section 114 (g) of the Evidence Act 1950 for the failure of investigation of the existence of “Kak Maria” [40] Learned counsel for both appellants argued that the learned trial Judge failed to invoke section 114 (g) of the Evidence Act 1950 for the failure by the prosecution to call Kak Maria, the baby sitter. The investigating officer, DSP Mohd Zaki bin Asahar (PW 13) testified that there was no investigation conducted at all on the person named Kak Maria despite the fact that the 1st Appellant had stated in evidence that she was the person who had taken care of the deceased when he was at work. Save and except for the evidence from PW 13 during cross examination when he attempted to explain the reason for not investigating Kak Maria as follows: “ Kak Maria tidak perlu dalam siasatan kerana penjagaan terhadap simati telah terlalu lama.” (See page 342 Rekod Rayuan Jilid 2 (1)). 17 [41] It is the defence contention that the failure of the prosecution in calling Kak Maria justifies the invocation of section 114 (g) of the Evidence Act 1950 against the prosecution’s case. [42] From the grounds of judgment of the trial Judge, His Lordship had considered this issue and found that there is no merit in the contention of the defence that Kak Maria was to be blamed for the injuries that led to the death of the deceased, and that the said Kak Maria was essential to the unfolding of the prosecution’s case. [43] We are of the view that the learned trial Judge did not err in this respect as His Lordship had considered the evidence from the mother of the deceased, PW 7, that the deceased was in the care of the 1st Appellant from September 2013 until the time of his death. Although PW 7 did admit in evidence that the deceased had been initially in the care of Kak Maria when the deceased was under her custody and that Kak Maria babysit the deceased whist she (PW 7) was at work. During the period when the deceased was under the care of Kak Maria, save and except one occasion when the deceased was scratched by a cat, there had never been any incident where the deceased suffered any cuts, injuries or any “lebam2” on his body. PW 7 categorically and firmly stated in evidence that after the 1st Appellant took custody of the deceased in September 2013 onwards, Kak Maria no longer baby sit the deceased (Refer to page 74 of Rekod Rayuan Jilid 1). It was also in evidence by PW 7 that she had difficulty getting the deceased to spend the time with her during those period when the deceased was in the 1st Appellant’s custody. It was then that PW 7 decided to engage a lawyer to get custody of the deceased but she was too late when the deceased died in the care of the 1st Appellant. PW 7 18 was never challenged by the defence on this piece of evidence, namely that the deceased was not in the care of Kak Maria at the material time. [44] In addition, the Appellants had never informed to the police during investigation that the deceased was taken care by Kak Maria at the material time. [45] As it is the case of the defence that Kak Maria was babysitting the deceased at the relevant time, it is for the defence to call Kak Maria to prove their case. [46] The learned trial Judge further considered the possibility of Kak Maria causing the injuries on the deceased in his grounds which we reproduced for clarity: “[111] If the deceased had been in the care of the said Kak Maria, it begs the question of why the First Accused had not enquired from her as to the cause of the multiple bruises on the body of the deceased. There was also no evidence that any police report was lodged by the First Accused regarding the injuries sustained by the deceased attributing the same to the said Kak Maria if indeed he thought that she was responsible for the injuries. [112] There was also no evidence that the deceased was brought to the hospital or clinic in order to treat his multiple injuries. The evidence of these multiple injuries as gathered from the testimonies of SP 2, SP 4 and SP 8 was overwhelming. The evidence of these injuries on the deceased’s body could not have escaped the attention of the First Accused. The inaction on the 19 part of the First Accused speaks volumes as to his complicity in the death of the deceased. [113] From a consideration of the above, I therefore found that there is no merit to the submission attributing the cause of the deceased’s death to the said Kak Maria. I find that the prosecution had sufficiently proven that the deceased was not in fact in the care of the said Kak Maria prior to the death of the deceased but rather in the care of the First and 2nd Accused from September 2013 until the date of his death.” [47] Given the aforesaid, we are of the view that the learned trial Judge did not err when he found that the issue on section 114 (g) of the Evidence Act 1950 on the failure to call Kak Maria, has no leg to stand on. [48] For the reasons we have stated above we find no merits in the appeal of the 1st Appellant. Therefore we dismissed the 1st Appellant’s appeal (J05 (M)-142-04/2017). The learned Judicial Commissioner’s decision is affirmed. [49] However, in the appraisal of the evidence of the prosecution and the defence in respect of the 2nd Appellant, we found that there is appealable error on the part of the learned trial Judge in convicting the 2nd Appellant. The 2nd Appellant has successfully raised reasonable doubt on the prosecution's case. We found that it is unsafe to convict the 2nd Appellant on the charge under section 302 PC read together with section 34 PC. We allowed the appeal (J05 (M)-144-04/2017) of the 2nd Appellant. The 20 conviction and sentence of the 2nd Appellant by the learned High Court Judge is set aside. The 2nd Appellant is discharged and acquitted. sgd (HASNAH MOHAMMED HASHIM) Judge Court of Appeal Malaysia Date: 3 Jun 2020 21 Counsels 1st Appellant Nik Mohamed Ikhwan Nik Mahamud Normah Mohd Desa Messers. Nik Ikhwan & Co.