Mohd Nur Hussein Bin Mohd Salleh v Pendakwa Raya (A-05(SH)-382-09/2023)

Mohd Nur Hussein bin Mohd Salleh, the Appellant (in Criminal Appeal No.: A-05(SH)-382-09/2023) (hereinafter referred to as “the accused”), was charged with the murder of one Hamidah 3 binti Haji Abdul Rahman (“the deceased”) on 13 March 2017. The charge against him reads: “Bahawa kamu pada 13 Mac 2017, jam lebih kurang 3.00 pagi hingga jam lebih kurang 5.00 pagi di alamat No 2, Persiaran Wira Jaya Timur 38, Taman Datuk Liew Yan Sip, 31350, Ipoh di dalam Daerah Kinta, di dalam Negeri Perak Darul Ridzuan telah membunuh dengan menyebabkan kematian ke atas Hamidah Binti Haji Abdul Rahman No. KP: 641020-08-5786 dan oleh yang demikian, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan”. Facts of the Prosecution’s Case [3] The prosecution called a total of 30 witnesses to testify in this case and the salient facts of the prosecution’s case as found by the learned High Court Judge are summarised below.

The deceased was employed as a shop assistant together with her younger brother, Mat Razali bin Haji Abdul Rahman (SP9), at Gunung Rapat Market in Ipoh, Perak. The accused also worked at the same market, assisting his father in selling poultry. According to SP9, the deceased had known the accused for several years prior to the incident. They were friends and frequently went out together. The deceased had informed SP9 that the accused had expressed his intention to marry her. However, after discussion, the deceased decided against marrying the accused due to a significant age difference 4 of nearly 20 years between them. Moreover, the accused’s mother was a schoolmate of the deceased.

Corporal Abdul Azehar bin Musa (SP8) had known the deceased for more than two months prior to the incident and was engaged to her on 9 March 2017 at SP9’s residence. They had planned to solemnise their marriage on 14 May 2017. SP8 last met the deceased on 12 March 2017 at approximately 11.00 p.m., near Starbucks Café in Gunung Rapat.

On 13 March 2017 at approximately 5.20 a.m., the deceased’s daughter, Noor Shairah binti Hussin (SP13), woke up from her sleep. After bathing, she attempted to wake the deceased but received no response. Upon touching the deceased’s body, she felt a sticky sensation. SP13 then switched on the lights and saw the deceased lying on the bed covered in blood. Despite SP13 repeatedly calling out loudly, the deceased did not respond.

SP13 attempted to contact her brother and SP8, but her calls went unanswered. She then dialled 999 and was connected to Ipoh General Hospital. She informed them of her mother’s condition and requested immediate assistance. At about 6.16 a.m., Nor Amman bin Norlizan (SP4) received the emergency call and proceeded to the address in an ambulance.

Upon arrival, SP4 found the deceased in a bedroom lying face down on the bed, partially unclothed, and covered in blood. After examination, SP4 confirmed the demise of the deceased and subsequently contacted the hospital to inform the police.

At approximately 6.55 a.m., Lance Corporal Mohamad Zamzuwarimi bin Bahrun (SP7) arrived at the scene. He relayed information regarding the suspected murder of a woman to Constable Kairul Nizam bin Sandi (SP6), who was on duty at the complaint counter of the Kg. Rapat Police Station. SP6 then lodged the First Information Report (Kg. Rapat Report 1055/17, marked as P23) and informed the investigating officer, ASP Yap Siew Cheng (SP28), who arrived at the scene at about 8.25 a.m.

Sergeant Patrick Leong Heng Wah (SP27) conducted forensic investigations at the scene, collecting physical evidence and DNA swabs. His crime scene report was tendered as exhibit P172. Signs of fire damage were observed in the deceased’s room, particularly on a chair and the curtains. SP28 completed the investigation at the scene at approximately 11.00 a.m., and the deceased’s body was subsequently transported to the Forensic Department of Hospital Raja Permaisuri Bainun for post-mortem examination.

At about 11.40 a.m., the post-mortem was conducted by Dr. Mohammad Shafie bin Othman @ Osman (SP26), and the post-mortem report was admitted as exhibit P169. The body was identified by SP9. Based on the evidence of SP26 and the post-mortem report, the deceased sustained multiple stab wounds, 6 including several penetrating injuries to the neck and back region.

SP26 confirmed that out of the eight stab wounds identified, three had severed major blood vessels, resulting in severe haemorrhage. He concluded that the cause of death was “excessive bleeding due to stab wounds to the neck and back.” He further opined that the injuries were inflicted by a sharp, flat, and pointed object capable of causing severe harm even with minimal force.

On 13 March 2017 at approximately 12.00 p.m., DSP Derek Lai Mam Kuen (SP21), together with a team of police officers, arrested the accused at the Kg. Rapat Market area and seized a sling bag and clothing belonging to him. A police report regarding the arrest and seizure (Kg. Rapat Report 1072/17, marked as P75) was lodged. At about 5.30 p.m., SP21 handed over the accused, along with the relevant documents and exhibits, to SP28.

Acting on information obtained, on 15 March 2017 at about 7.00 p.m., SP28 and other officers were led by the accused to a house at No. 44, Lengkok Permai 3, Kg. Tersusun Batu 4, Tambun, Ipoh, belonging to the accused’s father. At the rear of the house, the accused pointed out a purse located beneath an unused refrigerator. The purse and its contents were seized, and a police report (Tambun Report 712/17, marked as P176) was lodged.

Later that evening, at about 8.30 p.m., the accused led the police to a vacant house at No. 18, Jalan Ampang Tambun, Kampung Melayu Rizab Tambun, Ipoh. There, he pointed out a bottle containing petrol (P47) and a black plastic bag in a storage area. These items were seized, and a further police report (Tambun Report 713/17, marked as P178) was made.

On 16 March 2017 at approximately 3.00 p.m., SP28 and a forensic team were led by the accused to Sungai Pinji in an attempt to locate a knife allegedly used in the offence. However, the search could not be conducted due to strong currents and deep water. A subsequent search on 18 March 2017 also failed to recover the knife. Summary of the High Court’s Findings [17] At the close of the prosecution’s case, the learned High Court Judge undertook a careful evaluation of the evidence in accordance with section 180 of the Criminal Procedure Code. The Court correctly directed itself on the meaning of a prima facie case, adopting the principles in Balachandran v PP [2005] 1 CLJ 85, namely whether the evidence, if unrebutted, would warrant a conviction.

Upon a maximum evaluation of the credibility and reliability of the prosecution witnesses, the Court found that the essential elements of the charge under section 302 of the Penal Code had been established. The learned High Court Judge found that the death of the deceased and the cause of death, namely 8 excessive bleeding from multiple stab wounds were clearly proven through medical and supporting evidence.

Although there was no direct evidence implicating the accused, the Court held that the prosecution had successfully relied on strong circumstantial evidence. In particular, the conduct of the accused in leading the police to the discovery of incriminating items especially the deceased’s belongings hidden beneath a refrigerator at his residence was highly material. The Court found such evidence admissible under section 27 and/or section 8 of the Evidence Act 1950, as it demonstrated the accused’s knowledge and possession of items connected to the offence.

The Court further held that this chain of circumstantial evidence, when taken cumulatively, was sufficient to irresistibly point towards the guilt of the accused. Accordingly, the Court was satisfied that a prima facie case had been established, and the accused was called upon to enter his defence.

At the defence stage, the learned High Court Judge considered the evidence adduced by the accused in answer to the prosecution’s case. The Court evaluated whether the defence raised any reasonable doubt against the prosecution’s established case.

The learned High Court Judge found that the accused failed to raise reasonable doubt against the strong circumstantial 9 evidence presented by the prosecution. In particular, the accused’s explanation did not satisfactorily account for his knowledge and possession of the deceased’s belongings, nor did it displace the inference arising from his conduct in leading to their discovery.

The Court held that the accused’s defence was a bare denial and did not raise any reasonable doubt on the prosecution’s case. The prosecution’s case remained intact, cogent, and compelling even after the defence was considered.

In the premises, the learned High Court Judge concluded that the prosecution had proven its case beyond reasonable doubt. The circumstantial evidence formed a complete chain pointing irresistibly to the guilt of the accused, and the defence failed to dislodge that inference. Accordingly, the accused was found guilty and convicted as charged. The Accused’s Contentions [25] It is the accused’s contention that the conviction is unsafe, primarily because it was founded on weak circumstantial evidence, erroneous inferences, unreliable witness testimony, and a failure to properly consider his alibi defence.

First, the accused argues that the High Court placed undue reliance on the discovery of certain items allegedly belonging to the deceased, such as a wallet and a gold chain, found in his residence. It is contended that this evidence is not conclusive, 10 particularly given the admitted close relationship between the accused and the deceased, which reasonably explains the presence of such items. Crucially, there was no forensic evidence such as bloodstains or DNA linking these items to the alleged murder. Furthermore, the alleged murder weapon was never recovered. The accused submits that the High Court erred in drawing adverse inferences from these circumstances and effectively shifted the burden of proof onto him, contrary to established principles of the law. It was emphasised that circumstantial evidence must lead to one irresistible conclusion of guilt, failing which the benefit of the doubt must be given to the accused.

Secondly, the accused challenges the High Court’s inference regarding the nature of the injuries sustained by the deceased. The learned High Court Judge is contended to have concluded that the neck injuries resembled a chicken slaughtering technique and linked this to the accused’s occupation as a chicken slaughterer. It is submitted that this inference is speculative and unsupported by any expert medical or forensic evidence. No witness testified that the injuries bore characteristics unique to such a technique. Instead, the post-mortem findings merely indicated injuries caused by a sharp object, which could have been inflicted by any person. It is argued that the court’s reasoning was therefore based on conjecture rather than proven facts.

Thirdly, the accused contends that the High Court erred in accepting the evidence of SP15 as credible and reliable. He submits that SP15’s testimony contained significant inconsistencies and lacked corroboration. In particular, SP15 was unable to positively identify the alleged perpetrator or confirm the accused’s motorcycle registration number. There were also discrepancies in the timing of events, as SP15’s account did not align with the time frame stated in the charge. Additionally, SP15 is said to have given inconsistent descriptions of the accused’s clothing, and the conditions under which the observation was made were not conducive to accurate identification. The accused further highlights that no independent evidence, such as CCTV footage or forensic support, corroborated SP15’s testimony. In these circumstances, the accused argues that it was unsafe for the High Court to rely heavily on this witness.

Finally, the accused submits that the High Court failed to give proper consideration to his alibi defence. He maintains that at the material time, he was at a cyber café, and this was supported by prosecution witnesses themselves, particularly SP16 and SP17. The evidence included electronic log records showing his presence at the premises during the relevant period. Despite this, the High Court dismissed the alibi without adequate reasoning. It is argued that once a reasonable alibi is raised, especially one supported by objective evidence, the court is obliged to give it proper weight and afford the accused the benefit of the doubt. Summary of the Prosecution’s Submission [30] A central plank of the Prosecution’s case is the evidence obtained pursuant to section 27 of the Evidence Act 1950. The Prosecution contends that the accused had led the police to the discovery of crucial exhibits, including a purse hidden beneath a refrigerator at a house linked to him. This purse contained identification documents and jewellery belonging to the deceased, which were positively identified by witnesses. The Prosecution argues that such discovery could not have been made without the accused’s knowledge, thereby directly implicating him. It further invokes section 114(a) of the Evidence Act 1950 to support the inference that possession of recently stolen property points to the guilt of the accused.

Additionally, the prosecution relies on further discoveries made at another location (a vacant house known to the accused), where items such as clothing, a plastic bag, and other materials were recovered. Forensic analysis revealed the presence of the deceased’s DNA on several of these items, as well as traces of petrol consistent with evidence of burning at the crime scene. The prosecution submits that this forensic linkage strongly connects the accused to both the deceased and the scene of the crime, thereby reinforcing the prosecution’s case.

The prosecution also places significant reliance on the testimony of SP15, a neighbour of the deceased. SP15 testified that he saw the accused riding a motorcycle behind the deceased’s house in the early hours of the morning and later 13 followed him, eventually recognising him clearly under street lighting. The prosecution maintains that this is a case of recognition rather than mere identification, and that SP15 was a credible and independent witness with no motive to falsely implicate the Appellant. The High Court, having observed his demeanour, found him to be truthful and consistent, and the prosecution submits that there is no reason for the appellate court to disturb this finding.

In response to the accused’s alibi, the prosecution argues that the alibi is untenable and should be rejected. It contends that even if the accused claims to have been at a cyber café, the positive recognition by SP15 places him at the scene of the crime. Relying on authority, the prosecution submits that credible recognition evidence is sufficient to displace an alibi. The prosecution further asserts that the learned High Court Judge had properly considered and rejected the alibi defence after evaluating all the evidence.

The prosecution also addresses the issue of the accused’s internet search history, which revealed searches relating to neck wounds and fatal knife injuries shortly before the incident. It submits that this evidence demonstrates the Appellant’s knowledge and intention, and when read together with his occupation involving the slaughtering of chickens, supports the inference that he possessed the necessary skill and intent to inflict the fatal injuries on the deceased. The High Court’s 14 inference that the injuries were consistent with such technique is said to be justified on the totality of the evidence. Our Analysis and Findings [35] The law relating to a prima facie case is settled. The trial court is required to undertake a maximum evaluation of the evidence and determine whether the prosecution has adduced credible evidence on each essential ingredient of the charge which, if unrebutted, would warrant a conviction.

The learned High Court Judge correctly directed himself in accordance with the principles enunciated in Balachandran v PP (supra) and related authorities find that the evaluation undertaken was not merely superficial but involved a careful scrutiny of the credibility and reliability of the prosecution witnesses. We find no misdirection in law nor any misapprehension of the evidence at this stage that would justify appellate intervention. Issues for Determination [37] The central issues arising for determination are:

whether the learned High Court Judge erred in finding that a prima facie case had been established;

whether the circumstantial evidence adduced satisfied the legal threshold for conviction;

whether the evidence admitted pursuant to sections 27 and 8 of the Evidence Act 1950 was properly received and relied upon; and

whether the defence, including the alibi, raised a reasonable doubt. [38] Firstly, in regards to the elements of the offence under section 300(c) of the Penal Code, there is no dispute that the deceased died as a result of the injuries sustained. The post-mortem evidence conclusively established that the injuries inflicted were sufficient in the ordinary course of nature to cause death. Applying the principles laid down in Virsa Singh v State of Punjab [1958] AIR 465, the prosecution was required to establish the existence and nature of the injuries, the intention to inflict those injuries, and that such injuries were sufficient in the ordinary course of nature to cause death. [39] We find that the multiplicity, severity, and anatomical location of the stab wounds particularly those involving major blood vessels amply support the inference that the injuries were intentionally inflicted. The learned High Court Judge was therefore correct in concluding that the requirements i.e. the existence and nature of the injuries, the intention to inflict those injuries, and that such injuries were sufficient in the ordinary course of nature to cause death under section 300(c) of the Penal Code had been satisfied. [40] The law relating to a conviction founded on circumstantial evidence is well established. It is trite that a conviction may be based entirely on circumstantial evidence, provided that the totality of the evidence forms a complete chain leading irresistibly to the guilt of the accused, and excludes any reasonable hypothesis consistent with innocence. In reality, many criminal cases involving murder make it difficult for the prosecution to obtain direct evidence. In a situation where a trial judge is faced with a case in which the prosecution’s case rests entirely on circumstantial evidence, the trial judge must focus on the cumulative effect of the pieces of circumstantial evidence presented by the prosecution and determine whether they are sufficient to lead to the only reasonable conclusion, namely that the accused is the person who committed the offence as charged. [41] The prima facie evidence relied upon by the learned High Court Judge are premised on the cumulative effect of the following evidence: i. the information leading to discovery under section 27 of the Evidence Act 1940 and evidence of conduct under section 8 of the same Act; ii. identification of exhibits seized by witnesses; iii. the connection of the items seized with the deceased; and iv. evidence of SP15 who chased after the accused on the date of incident. [42] A critical feature of the prosecution’s case lies in the discovery of the deceased’s belongings pursuant to information furnished by the accused. The evidence demonstrates that the accused first led the police to a house with the address No. 44, Lengkok Permai 3, Kg Tersusun Batu 4, Tambun, Ipoh (“house No.44”) to a concealed location beneath a refrigerator where a purse containing the deceased’s personal documents and jewellery were recovered. These items were also identified by the relevant witnesses to have belonged to the deceased. Importantly, the fact that the accused was staying in the house No.44 was also not challenged by the defence. [43] We are of the considered view that the learned High Court Judge correctly found that such discovery leading to a finding of fact, was directly attributable to the information supplied by the accused and fell squarely within the ambit of section 27 of the Evidence Act 1950. The items were hidden in a manner that would not have been discovered but for the accused’s knowledge. This is a classic evidence of discovery admissible under section 27 of the Evidence Act 1950. We find no error in the learned High Court Judge’s ruling on admissibility or weight of these evidence. [44] Independent of section 27 of the Evidence Act 1950, the accused’s conduct in leading the police and pointing out locations connected with the offence constitutes relevant conduct admissible under section 8 of the Evidence Act 1950. Such conduct is highly probative, as it demonstrates knowledge of incriminating facts that could only be possessed by a person involved in the commission of the offence. The learned High Court Judge was correct in treating this as corroborative evidence. [45] Further, the recovery of the deceased’s belongings in circumstances indicating recent possession gives rise to the presumption under section 114(a) of the Evidence Act 1950. The same provision also applies in relation to the discovery of the items led by the accused on 15.3.2017 after the items (chain and locket) were reported lost by the deceased’s daughter on 14.3.2017 (see: Amathavelli P Ramasamy v PP [2009] 3 CLJ 109 and Siew Yoke Keong v PP [2013] 4 CLJ 149). The accused failed to provide any credible explanation for such possession. In law, such unexplained possession permits the inference that the accused was not only in possession of stolen property but was also involved in an act connected to a serious offence. [46] On 15 March 2017, at approximately 8.30 p.m., SP28, together with Inspector Dasarthan of D9 IPK, Inspector Nizam, Inspector Zaffrul from the IPK Forensic Unit, and assisted by personnel from D9 IPK Perak and D9 IPD Ipoh, acting on information received and guided by the accused, proceeded to an unoccupied house located at No. 18, Jalan Ampang Tambun, Kampung Melayu Rizab Tambun (“house No.18”). The items recovered at house No.18 comprised, inter alia, a backpack without any brand (Exhibit P128A), a black raincoat without any brand (Exhibit P129A), and a bundle of newspaper stained with blood (Exhibit P133A), which was confirmed to contain the DNA of the deceased. Further, a long-sleeved shirt of the Orlando brand, size XL and dark blue in colour (Exhibit P134A), was also found and similarly confirmed to contain the DNA of the deceased, and was identified by SP15. In addition, a black and red sports shirt of the NIKE brand, size XL, bearing bloodstains (Exhibit P136A), was recovered; this item was confirmed to contain the DNA of the deceased and was identified by both SP15 and SP20. Lastly, a pair of brown denim trousers of the Snail Original brand, size 38, also bearing bloodstains (Exhibit P137A), was recovered and likewise confirmed to contain the DNA of the deceased. [47] The evidence of the witnesses who identified and seized the exhibits must be considered together with the testimony of SP18 (Mohamad Firdaus bin Mohamad Yusof), who is the accused’s cousin. According to this witness, the owner of the house where the exhibits were discovered had passed away more than ten years prior to 2017, namely Putih bt Selmiah, who was his grandmother. The witness further stated that his grandmother’s house had been left abandoned and had not been occupied since her passing more than ten years ago. [48] The place where the exhibits were found was indeed unsecured and without doors; however, the witness testified that no one entered the premises. SP18 also stated that the storeroom contained a large quantity of old and dilapidated items to the extent that it was on the verge of collapsing. Since his grandmother’s death, no one had resided in the house or made use of the storeroom. The witness further testified that the accused was aware of the location of the house and had been there on many occasions. Based on the evidence of SP18, it is clear that the accused was well aware of the abandoned premises at his ancestral home, having visited the place numerous times. [49] At the same house, the accused had pointed out to SP28 a Desa-brand mineral water bottle (1.5 litres) containing a coloured liquid, as well as a black plastic bag, both of which were found in a storage area at the lower section of the house No. 18. The learned High Court Judge correctly stated: “Kaitan barang-barang yang dirampas dari stor rumah No.18 [49] Sekiranya keterangan berkenaan kelakuan tertuduh di stor rumah 18 tidak diterima di bawah s. 8 AK, rampasan botol minuman berisi petrol dan beg plastik hitam di stor rumah No. 18 yang mempunyai kaitan dengan tertuduh juga relevan bagi mengaitkan tertuduh dengan pembunuhan si mati kerana barangan ini didapati di alamat yang mempunyai hubungan dengan tertuduh. [50] Barang-barang yang dirampas oleh SP28 di stor rumah No. 18 telah disenaraikan dalam perenggan [32]. SP27 telah mengambil sampel forensik dari bilik si mati dan menyerahkannya kepada SP28 (lihat: P172 dan P173, terutamanya kesan kebakaran yang bertanda “5S” dan “7”). SP28 telah menghantar sisa kebakaran tersebut (bertanda Y15(5) dan Y15(7)) dan botol minuman (bertanda Y24, P47) untuk dianalisis. Ahli Kimia, Sreetaran a/l Ramankutty (SP11) dalam keterangannya telah mengesahkan bahawa hasil analisisnya menunjukkan kehadiran sisa petrol di dalam kedua-dua sampel sisa kebakaran tersebut (lihat: P44) dan kandungan botol minumantersebut ialah petrol (lihat: P42). Seterusnya, SP11 menyatakan “Kandungan Y15(5), Y15(7) dan Y24 mempunyal persamaan cirl-ciri yang unik untuk petrol.” [51] Kandungan beg plastik hitam seperti di perenggan [32] telah dihantar oleh SP28 untuk analisis DNA. Erizasyira binti Basri (SP22) sesudah menjalankan analisis DNA telah dalam keterangannya dan laporan kimia (P107) membuat keputusan dan interpretasi yang berikut: “1. Satu profil DNA perempuan telah diperolehi daripada kesan darah pada tuala Y5, kain pelikat Y6, putik kapas Y14(9), anak tudung Y16, gumpalan surat khabar Y32, kemeja Y33 dan Y35 dan seluar Y36 yang berpadanan dengan profil DNA kesan spesimen darah Y9 (berlabel Hamidah binti Hj. Abdul Rahman). Ini menunjukkan bahawa DNA yang telah dikenalpasti adalah berasal daripada individu yang sama.” Analisis SP22 dengan jelasnya menunjukkan gumpalan surat Khabar Y32, kemeja Y33 dan Y35 serta seluar Y36 mempunyai kesan darah yang berpadanan dengan DNA si mati. Kesemua barangan ini dijumpai dalam beg plastik hitam yang dirampas di stor rumah No. 18.” [50] The recovery of incriminating items pursuant to the accused’s own conduct, and the supporting forensic evidence together form an unbroken chain of evidence. We find that the circumstantial evidence, when viewed cumulatively, is compelling. The learned High Court Judge correctly applied the established principles governing circumstantial evidence and was entitled to conclude that the chain of evidence was complete and cogent. [51] In regards to the evidence of SP15, the deceased’s neighbour, his evidence reveals that on Monday, 13 March 2017, at approximately 2.00 a.m., he arrived at his house (No. 5, Persiaran Wira Jaya Timur 38) after finishing his business. At that time, SP15 saw the appellant riding a dark blue Honda EX5 motorcycle behind the deceased’s house, at the location marked “X” in P59, as SP15 was on his way to his residence. [52] SP15 then parked his car in front of his house and unloaded his business items to be kept inside. Thereafter, he proceeded to leave again with his wife for the Falim wholesale market. At about 2.30 a.m., as SP15 was about to exit his house, he noticed a dark blue Honda EX5 motorcycle ridden by a man dressed in a black jacket, black trousers, and a black helmet emerging from the location marked “X.” [53] The man (the accused) was also seen wearing the black jacket over the front of his body and carrying a sling bag across his chest. The motorcycle was ridden towards the lane leading to SP15’s house and passed in front of the deceased’s house. At that time, SP15 had lowered his car window and noticed that the sound of the motorcycle engine had ceased. SP15 became concerned and suspected that the rider might be attempting to break into his house, and he therefore turned back to verify the situation. [54] When SP15 passed through the lane again, he observed that the motorcycle had exited via the rear lane, and he immediately pursued it at speed, as the accused had been travelling quickly from the outset. After following the motorcycle for approximately 100 metres, at the location marked with an asterisk in photographs P7(10) and P7(11), SP15 was able to see that the rider was a man he recognised as a chicken seller frequently seen at the Gunung Rapat market (the accused). Upon recognising the rider, SP15 proceeded to the wholesale market without any suspicion, as he had previously seen the accused visited the deceased’s house on several occasions. [55] SP15 further confirmed in his evidence that he was able to see the accused clearly in the early hours of that morning due to the presence of a streetlight at the location where the accused was observed. SP15 also stated that the accused was riding the motorcycle at a high speed at that time. [56] According to SP15, apart from the deceased’s children, the accused was also a frequent visitor to the deceased’s house. SP15 had seen the accused visiting the deceased as often as three times a week, sometimes twice weekly. At that time, the accused was of a stocky build, had a black beard, and was of medium height. SP15 had also seen the accused travelling in the deceased’s car. Although SP15 was unsure of the exact nature of their relationship, he was certain that the deceased and the accused were closely acquainted. The last occasion SP15 saw the accused was in the early hours of Sunday, 12 March 2017. Prior to that, in early 2017, approximately two months before the incident, SP15 had seen the deceased driving her car with the accused seated in the front passenger seat. [57] SP15 also provided a description of the clothing worn by the accused on that early morning and identified the accused’s clothing and sling bag from photographs shown to him. Between approximately 2.00 a.m. and 2.30 a.m. on the morning of 13 March 2017, as testified by SP15, the accused was seen behind the victim’s house at the location marked “X” when SP15 arrived in front of his house via the route marked “Y” (P59). After unloading his goods for about 15 minutes and just as SP15 began to drive away, the accused was seen emerging from that location. Shortly thereafter, the sound of a motorcycle engine being switched off was heard. At that point, when SP15 became suspicious and began to follow the accused’s motorcycle, the accused was seen passing again behind the victim’s house. However, upon being followed by SP15, the accused proceeded to leave the housing area. [58] Having carefully considered the findings of the learned High Court Judge, we find no reason to disturb the conclusions reached in respect of the credibility and evidential value of SP15. The learned High Court Judge undertook a proper evaluation of SP15’s testimony and was entitled to find that SP15 was a credible and independent witness. Particular emphasis was rightly placed on the fact that SP15 gave his evidence in a clear and consistent manner despite being subjected to extensive cross-examination. The learned High Court Judge also had the advantage of observing the demeanour of the witness and was satisfied that his testimony was truthful and untainted by any improper motive. [59] We agree with the finding of the learned High Court Judge that SP15 had no personal interest in the case and was merely a neighbour of the deceased. The alleged discrepancies in his prior statement were adequately explained and did not affect the core of his evidence. In our view, such minor inconsistencies are insufficient to discredit an otherwise reliable witness. [60] The learned High Court Judge further found, correctly in our view, that SP15’s account of chasing the motorcycle and identifying the accused was cogent and credible. The suggestion by the defence that SP15 was a “planted witness” was rightly rejected as being without any evidential foundation. [61] Of particular significance is SP15’s positive identification of the accused, whom he had known for several years, as well as his identification of the items worn and carried by the accused at the material time. These items, including the sling bag, raincoat and other clothing, were subsequently recovered and identified in court. [62] We also agree with the learned High Court Judge’s finding that the recovery of these items, some of which were found to contain DNA matching that of the deceased, constitutes strong circumstantial evidence linking the accused to the offence. This evidence, viewed cumulatively, lends substantial support to the prosecution’s case. [63] In the premises, we are satisfied that the learned High Court Judge did not err in accepting the evidence of SP15 and in placing reliance on it as part of the chain of circumstantial evidence against the accused. [64] Even if an alibi had been raised, in light of the identification and recognition by SP15, the accused’s alibi must be rejected outright In Duis Akim & Ors v PP [2013] 9 CLJ 692, the learned trial judge accepted that the appellants were positively identified by PW1. But despite his factual finding of positive identification of the appellants by PW1, the learned trial judge subsequently reversed himself at the end of the whole case. And he did it even though the defence had not adduced any evidence to rebut the positive finding on their identification. The Federal Court in reviewing this evidence and the relevant legal principles was of the view that the learned trial judge erred in reversing his initial finding on the identification of the appellants by PW1. Speaking through the judgment of Richard Malanjum CJ (Sabah & Sarawak) (as he then was), the Federal Court explained: “[47] To begin it is in the forefront of our minds the Turnbull guidelines (R v. Turnbull & Ors [1976] 3 All ER 549) as succinctly summarised in the case of Heng Aik Ren Thomas v. PP [1998] 3 SLR(R) 142. Delivering judgment for the Singapore Court of Appeal M Karthigesu JA said this at paras. 33-35 of the judgment: Although the Turnbull guidelines were drafted to assist a trial judge in correctly directing the jury, the principles which were enunciated in it are of equal relevance to our criminal trial system. In adapting the Turnbull guidelines for our local system, we have reworked the Turnbull guidelines into the following three-step test. The first question which a judge should ask when encountering a criminal case where there is identification evidence, is whether the case against the accused depends wholly or substantially on the correctness of the identification evidence which is alleged by the Defence to be mistaken. If so, the second question should be this. Is the identification evidence of good quality, taking into account the circumstances in which the identification by the witness was made? A non-exhaustive list of factors which could be considered include the length of time that the witness observed the accused, the distance at which the observation was made, the presence of obstructions in the way of the observation, the number of times the witness had seen the accused, the frequency with which the witness saw the accused, the presence of any special reasons for the witness to remember the accused, the length of time which had elapsed between the original observation and the subsequent identification to the police and the presence of material discrepancies between the description of the accused as given by the witness and the actual appearance of the accused. In considering the circumstances in which the identification was made, the judge should take note of any specific weaknesses in the identification evidence. If after evaluation of the identification evidence, the judge is satisfied that the quality of the identification is good, he may then go on to safely assess the value of the identification evidence. Where the quality of the identification evidence is poor, the judge should go on to ask the third question. Is there in any other evidence which goes to support the correctness of the identification. If the judge is unable to find other supporting evidence for the identification evidence, he should then be mindful that a conviction which relies on such poor identification evidence would be unsafe. The supporting evidence need not be corroboration evidence of the kind required in R v. Baskerville [1916] 2 KB 658. What the supporting evidence has to be is evidence that makes the judge sure that there was no mistake in the identification. (emphasis added). We agree with the summary of the guidelines. (See also: Zulkifli @ Sakun Ahmad Endin Chun lwn. PP [2012] CLJU 435; [2012] 1 LNS 435; [2013] 1 MLJ 733; Dorai Pandian Munian & Anor v. PP [2012] 10 CLJ 22; [2009] 4 MLJ 525). …..

(ii) The Alibi Defence [81] As indicated above only the first and second appellants relied on alibi as their defence. [82] However, alibi could not prevail over the positive identification of an accused person especially so in the face of categorical statements coming from credible witnesses who had no ill motives in testifying. [83] Thus, in Mutachi Stephen v. Uganda ([2003] UGCA 9) the accused said that on the night the offence took place he was already asleep with his wife. However, there was a witness who had positively identified him. As such his alibi collapsed. He has been squarely put at the scene of crime. [84] Similarly in the present case it was the finding of the learned trial judge, which we agree, that the appellants had been positively identified by PW1. As such, the alibi defence of the first and second appellants collapsed.” [Emphasis added] [65] The accused’s alibi defence herein was considered and rejected by the learned High Court Judge. The law is clear that an alibi must be weighed against the totality of the prosecution’s evidence. In the present case, the alibi is inconsistent with the objective evidence and is effectively displaced by the strong circumstantial and forensic evidence linking the accused to the offence. [66] The learned High Court Judge had evaluated the accused’s defence of alibi and found as follows: “Keterangan SP16, SP17 berbanding SP12 dan SP14 [67]

3 SCC 470 provides further guidance by identifying relevant considerations, including the manner of commission of the murder, the motive, the magnitude of the crime, the socially abhorrent nature of the act, and the personality of the victim. The Court must undertake a “balance sheet” analysis of aggravating and mitigating factors before determining whether life imprisonment would be wholly inadequate. [76] These principles have found acceptance within our jurisdiction, where the death penalty is justified in cases involving extreme brutality, calculated execution, and conduct which shocks the collective conscience of society. [77] The evidence demonstrates that the deceased sustained multiple stab wounds, including penetrating injuries which severed major blood vessels and resulted in excessive haemorrhage. The multiplicity, location, and severity of these injuries clearly establish that the attack was sustained, vicious, and intentional. [78] This was not a momentary lapse of self-control. Rather, it was a relentless assault, carried out with determination and force, evidencing a clear intention to ensure the death of the victim. The offence was committed within the sanctity of the victim’s home, at a time when she was most vulnerable, thereby aggravating the seriousness of the crime. [79] A significant and compelling feature of this case is the presence of premeditation. The evidence reveals that the accused had taken deliberate steps prior to the commission of the offence, which unequivocally demonstrate planning and calculated execution. [80] The accused had orchestrated a false alibi by attending a cyber café, a place with which he was familiar, having previously worked there and logging into a computer system. He then left the premises for a period of time, during which the offence was committed, and subsequently returned to log out. This strategy was plainly designed to create the illusion of continuous presence at the cyber café when, in truth, he was elsewhere committing the offence. [81] This conduct is not merely indicative of an attempt at concealment after the fact. It forms part of the pre-arranged plan to commit the murder while simultaneously fabricating a defence. Such behaviour reflects a high degree of calculation, foresight, and deliberate intent. [82] The finding of premeditation is further reinforced by the accused’s internet search history, which revealed searches relating to neck wounds and fatal knife injuries a few days before the incident. This evidence is highly probative of the accused’s knowledge, preparation, and intention to inflict lethal harm. [83] When this is considered alongside the accused’s occupation involving the slaughtering of chickens, it is reasonable to infer that he possessed both the technical familiarity and practical skill in the use of sharp instruments to cause fatal injuries. The convergence of these factors leads inexorably to the conclusion that the killing was methodically planned and executed with precision. [84] Taken cumulatively, the false alibi, the incriminating search history, and the accused’s occupational expertise establish beyond doubt that the offence was premeditated, cold-blooded, and meticulously carried out. [85] The accused’s conduct subsequent to the commission of the offence further aggravates his culpability. His attempts to dispose of incriminating items and to mislead the investigation demonstrate a consciousness of guilt and a continued effort to evade justice. [86] Such conduct negates any suggestion of remorse and reinforces the conclusion that the offence was committed with deliberate and calculated intent. [87] The deceased was a defenceless victim attacked in her own home. The discovery of her body in a blood-soaked condition by her child adds a deeply tragic and disturbing dimension to the offence. This is not merely a crime against an individual. It is one that shocks the collective conscience of society, undermining the sense of security that every person is entitled to enjoy within the privacy of their home. [88] In accordance with the principles laid down in Bachan Singh (supra) and Machhi Singh (supra) we have undertaken a careful balancing of aggravating and mitigating circumstances. The aggravating factors include the extreme brutality and multiplicity of injuries, clear premeditation and deliberate planning, fabrication of a false alibi, incriminating preparatory conduct (internet searches), and execution of the offence within the victim’s home. There were attempts to destroy evidence and evade detection and severe emotional trauma inflicted upon the victim’s family. [89] We find no mitigating factors of sufficient weight to counterbalance the overwhelming aggravating circumstances. Even after giving full consideration to all possible mitigating factors, we are satisfied that the alternative sentence of life imprisonment is wholly inadequate. [90] Applying the established principles, we are satisfied that this case falls squarely within the category of the “rarest of rare”. The murder was executed with meticulous planning and preparation, the attack was exceptionally brutal and sustained, the accused demonstrated a blatant disregard for human life and the circumstances of the offence are such as to outrage the collective conscience of society. [91] We are of the considered view that this is not a case where the Court can conscientiously opt for life imprisonment. We unanimously find that the circumstances of the crime and the conduct of the accused leave no room for any lesser sentence. Conclusion [92] For the reasons set out above, we find the present case demands the imposition of the most severe punishment permitted by law. Accordingly, the appeal by the Public Prosecutor is allowed. The sentence of imprisonment is set aside and substituted with the sentence of death. The conviction is affirmed. The sentence imposed is that the accused be hanged by the neck until dead. Dated: 4 May 2026 Sgd Noorin Binti Badaruddin Judge Court of Appeal Malaysia LIST OF COUNSELS: CRIMINAL APPEAL NO.: A-05(SH)-382-09/2023 Counsels for the Appellant:

Mohamad Hafiz bin Jalaludin;

Aliff Aiman bin Rusli; and [Alif, Hafiz & Partners (Ipoh)]

Mohd Izhar bin Ahmad Azmi; [Izhar & Yusri)] Counsel for the Respondent:

Mohd Amril bin Johari [Attorney General’s Chamber] CRIMINAL APPEAL NO.: A-05(H)-403-09/2023 Counsel for the Appellant:

Mohd Amril bin Johari [Attorney General’s Chamber]

Mohamad Hafiz bin Jalaludin;

Aliff Aiman bin Rusli; and [Alif, Hafiz & Partners (Ipoh)]

Mohd Izhar bin Ahmad Azmi; [Izhar & Yusri)]