MOHD SAZLY BIN ZAMRY v Pendakwa Raya (B-05(M)-363-09/2020)

This is an appeal against the trial decision of the High Court that convicted and sentenced the Appellant on the charge of murder of a four-year-old child.

After having heard the appeal on 16th February 2023 and thereafter deliberated on it, we have on 14th April 2023 unanimously dismissed the appeal and affirmed the decision of the High Court.

The Appellant who is the accused in the Shah Alam High Court Criminal Trial no: 45B-32-12/2016 has been charged as follows in the Bahasa Malaysia national language: “Bahawa kamu pada 20/12/2015, jam di antara 2.00 petang hingga 6.15 petang bertempat di Lot 4196, Jalan Sungai Udang, di dalam Daerah Klang, Negeri Selangor Darul Ehsan telah melakukan bunuh dengan menyebabkan kematian ke atas Aidil Adha bin Affendi (No. MyKid: 111106-06-0331). Oleh yang demikian, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan.” (“Charge”)

Based on a police report lodged by the Appellant’s neighbour, Raja Izwan Hairizan bin Raja Omar Din (“PW6”) consequential to a meeting at PW6’s shop between the Appellant and PW6 on a Sunday afternoon of 20th December 2015 wherein PW6 was informed that the Appellant had brought back to his house the dead body of a child who was knocked down by the Appellant’s friend, Inspector Mohd Zuwari bin Mohd Nor (“PW9”) together with his team (“Team”) went to the Appellant’s house at Lot 4196 Jalan Sungai Udang in Klang (“House”).

Upon arrival at the Appellant’s house, PW9 knocked on the front door but no one opened it despite the Appellant and his wife, Normala binti Sambak (“PW7”) were inside the House. She was prohibited by the Appellant from opening the door unless she is satisfied that PW9 has a warrant with him.

As the result, PW9 broke open the door to the House and the Appellant became aggressive and attempted to flee. He was however apprehended by the Team and handcuffed. The Team thereafter searched the House and found the dead body of a male child (“Victim”) in an unused toilet behind the House.

Consequently, PW9 notified the police operation centre and waited for the arrival of its forensic team. Upon arrival, the forensic team led by ASP Nawawi bin Yaakob (“PW10”) after inspecting the body of the Victim, searched and collected several items, to wit, a floor mop, a cane and a PVC pipe. Moreover, PW10 discovered blood splash mark on the wall in room no.1 of the House.

The Appellant was thereafter arrested and brought to the police station whilst the body of the Victim was taken to the Tengku Ampuan hospital in Klang for post mortem. He was subsequently charged for murder after due investigation was carried out by ASP Chua Chong Kheow (“PW15”).

After hearing all the prosecutorial evidence adduced by the Respondent, the learned High Court judge was satisfied on maximum evaluation that the Respondent has made out a prima facie case of murder against the Appellant following the principles laid down in Balanchandran v. Public Prosecutor [2005] 1 AMR 321 (FC).

In this regard, the learned High Court judge firstly, found that the dead Victim is indeed Aidil Adha bin Affendi as examined by Dr. Khairul Azman bin Hj. Ibrahim (“PW11”), the forensic medical consultant of Tengku Ampuan Hospital in Klang who conducted the post mortem. According to PW11, the Victim died within 24 hours from the time of the 5 autopsy that was conducted at 12.30 am on 21st December 2015. Furthermore, the Victim was found already dead by PW9 and PW10 when they searched the House and the Victim was identified by Nor Fadzilah binti Milhuda (“PW2”) who is the Victim’s mother, Siti Norain binti Sambak (“PW4”) who is the Appellant’s sister in law, Normala binti Sambak (“PW7”) who is the Appellant’s wife and Mohd Nor Syazawan bin Mohd Sazly (“PW8”) who is the Appellant’s son.

The learned High Court judge secondly found that the Victim sustained 29 injuries on the external part of the body including his head in the forms of lacerations, bruises, abrasion, swelling as well as tramline bruises based on PW11’s examination. PW11 opined that the multiple tramline bruises could have been caused by a cane. More pertinently, the learned High Court judge found as opined by PW11 that the Victim suffered subdural haemorrhage on his head caused by an impact such as being slapped because there were bruises on the Victim’s mouth, right side of his face and on his head. In the premises, the learned High Court judge is satisfied that the Victim died of injuries suffered by him due to the collection of blood at the right parietal region at the internal part of the Victim’s head, extensive haemorrhage with clots involving left temporal and left parietal region of the Victim’s brain and haemorrhage at the thin subarachnoid that covers the brain.

The learned High Court judge thirdly found that the cumulative effects of prosecutorial evidence adduced led to the irresistible conclusion that the Appellant is the one and only one who caused the injuries suffered 6 by the Victim based on the principles on circumstantial evidence laid down in Sunny Ang v. Public Prosecutor [1966] 2 MLJ 195.

In this respect, the learned High Court judge found that PW4 lived in the House that belonged to her late mother. Sometime in 2015, the Appellant and his wife PW7 came to stay in the House together with their children. PW7 worked in Hong Leong bank and was hence not in the House during office hours whilst the Appellant who used to work in a hotel was then unemployed and mainly stayed home. The Victim’s mother, PW2 was married to the Appellant as his second wife. The Victim was her son from her previous marriage to another man. PW2 never stayed in the House and she left the Victim under the care of the Appellant two weeks before the 20th December 2015 incident.

Moreover, the Victim was kept in room no. 1 adjacent to PW4’s room in the House. The Appellant mainly entered the room and was the only person attending to the Victim. PW4 had heard the Appellant scolding the Victim but she did not react because she was afraid of the Appellant who seemed to have some marital problems with PW7. Aside from the Appellant, it was only PW8 who had contact with the Victim whom he called “Botak” to play with him. PW8 also heard instances of the Victim screaming when caned by the Appellant.

For the entire two weeks before the incident on 20th December 2015, the Victim was confined in room no. 1 of the House locked using a rope which was pulled from the inside and tied at the outside.

The learned High Court judge further found that the occupants of the House other than the Appellant, to wit, PW4, PW7 and PW8 could not be responsible for the injuries inflicted upon the Victim on 20th December 2015 (which is a Sunday) as they did not have the opportunity to be in close contact with the Victim. In fact, PW4 and PW7 could not care less as to what happened to the Victim because they were afraid of the Appellant and they were prohibited by the Appellant from interacting with the Victim when he was kept in room no. 1 of the House. It was PW8 and his younger sister who initially entered room no. 1 of the House and saw the Victim lying on the floor. The body was cold when touched by PW8. He accordingly informed his mother PW7 but she told him off.

The learned High Court judge also found based on the DNA analysis of the chemist, Nor Aidora bin Saedon (“PW12”) that there were mixed DNA profiles belonging to the Appellant and the Victim found on the cane found in room no. 1 of the House. This is consistent and corroborated by the results of the examination conducted by the pathologist PW11 on the body of the Victim, particularly the tramline bruises. In addition, the Victim’s DNA profile was found on the floor mop which was found hanging in the unused toilet where the body of the Victim was eventually discovered by the Team. There was also the blood stain of the Victim on the wall in the room too.

In the premises, the learned High Court judge concluded that since there was no one else who entered the room no. 1 of the House, the Appellant must have been the only one who entered the room and slapped the Victim so hard that caused the haemorrhage to the Victim’s head 8 internally. All the evidence adduced pointed irresistibly in one direction and one direction only and that is the guilt of the Appellant.

The learned High Court judge fourthly and finally found from the totality of the evidence adduced that the Appellant had the intention of causing such bodily injuries to the Victim that such injuries inflicted were sufficient in the ordinary cause of nature to cause death as prescribed in limb (c) of s. 300 of the Penal Code particularly in view that the Victim was only in his tender age of 4 years old.

The learned High Court judge, therefore, held that the Respondent successfully proved a prima facie case and called for the Appellant to enter his defence.

The Appellant elected to give his sole testamentary evidence in defence.

According to the Appellant, he was arrested together with PW4 by the Team at the House and it was a possibility that the death of the Victim was due to PW4’s involvement. He did deny that he had slapped the Victim before the incident on 20th December 2015 because the Victim was naughty. However, he denied beating the Victim with the PVC pipe and 9 floor mop. The floor mop was used by the other occupants of the House according to him.

As to the injuries on the Victim’s body, the Appellant stated that he had seen some injuries on the Victim prior to the incident on 20th December 2015 and he had taken the Victim to the clinic to see a doctor for treatment.

Finally, the Appellant highlighted that he had cooperated with the police in the course of the investigation of the incident.

After hearing the defence evidence adduced by the Appellant, the learned High Court judge on maximum evaluation found that the possibility of PW4’s involvement and the Appellant taking the Victim to the clinic prior to the incident on 20th December 2015 is an afterthought that only surfaced after the Respondent closed its case and must accordingly be rejected.

The learned High Court judge found that the Victim was with the Appellant for two weeks before the Victim was found dead and the Appellant offered no explanation as to how the Victim he kept in room no. 1 of the House had sustained the fatal injuries.

As to the Appellant’s alleged cooperation rendered to the police during the investigation, the learned High Court judge found it perplexing as to how the Appellant’s this line of defence could be gainsaid to raise a reasonable doubt on the prima facie case as found based on the conduct of the Appellant as well as the honest testimonies of the prosecution witnesses. It was beyond doubt to the learned High Court judge that the Victim who was still alive then was under the Appellant’s control and the Appellant, therefore, knew what had happened and what he had done to the Victim. The Appellant lied to the Victim’s mother because he knew all along that the Victim died due to his acts in inflicting the injuries found on the Victim. The Appellant thereafter attempted to conceal the body of the Victim in the toilet and did not inform PW2, PW4 or PW7. He also lied to his neighbours PW3 and PW 6 in his attempt to dispose of the Victim’s body somewhere. The learned High Court judge also noted that the Appellant refused to let the Team into the House and attempted to flee instead when confronted by the Team.

Consequently, the learned High Court judge concluded there is overwhelming evidence that proved the Appellant murdered the Victim beyond reasonable doubt as charged; thus, convicted the Appellant and thereafter sentenced him to death by hanging pursuant s. 302 of the Penal Code.

The Appellant in his appeal before us principally submitted on two issues to convince us that the learned High Court judge erred in her findings and hence the conviction of the Appellant.

We have accordingly reviewed the grounds of judgment of the learned High Court judge after having reminded ourselves of the following dicta of Abdull Hamid Embong FCJ in the case of Isidro Leonardo Quito Cruz v. PP [2013] 2 CLJ 1025 (FC): “[16] The Federal Court too does not make its own findings of fact. (see PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457). The function of this court, at this final stage of appeal in dealing with the findings of fact by the courts below is now limited in its scope, confined to the advice of the Privy Council in this passage from Antonio Dias Caldeira v. Frederick Augustus Gray [1934] 1 LNS 5; [1936] MLJ 137, 138 which says: ... that the functions of an appellate court, when dealing with a question of fact, and a question of fact in which questions of credibility are involved, are limited in their character and scope, and that in an appeal from a decision of a trial judge based on his opinion of the trust-worthiness of witnesses whom he has seen, an appellate court must in order to reverse, not merely entertain doubts whether the decision below is right but must be convinced that it is wrong. Now, it settled law that it is no part of the function of an appellate court in a criminal case or indeed any case to make its own findings of fact. That is a function exclusively reserved by the law to the trial court. The reason is obvious. An appellate court is necessarily fettered because it lacks the audio-visual advantage enjoyed by the trial court. This case, it must be underlined, raises for the most part essentially factual issues on which the courts below were in agreement. On such 12 issues, the rule is that an appellate court should not reverse the trial judge in the absence of palpable and overriding error which affected his or her assessment of the facts. There is also the now trite principle that this court will not interfere with any concurrent findings of fact by both the trial court and the intermediate appellate court. Unless there is a plain and overriding error which affected their assessment of facts. (see Lim Geak Liang v. East West UMI Insurance Bhd [1997] 4 CLJ 405; [1997] 3 MLJ 517. Also, Low Kian Boon & Anor v. PP [2010] 5 CLJ 489).” (emphasis added)

The Appellant firstly submitted that the learned High Court judge made a grave error when she found in her grounds of judgment as follows: “[29] … The entire evidence shows that only the accused had access to the deceased and therefore the injuries suffered by the deceased must have been inflicted on him by none other than the accused.” notwithstanding that PW8 in fact also had access to the Victim and discovered the cold body of the Victim lying on the floor in room no. 1 of the House on 20th December 2015.

We are however of the view that the learned High Court judge’s finding as quoted by the Appellant must be read contextually against the rest of her grounds of judgment. In this regard, we noted she has stated that room no. 1 of the House was locked using a rope which was pulled from the inside and tied at the outside. In other words, it was not locked with a key held by the Appellant. Thus, PW8 also had contact with the Victim whom he called “Botak” to play with him by untying the rope.

The learned High Court judge pertinently held as follows in her grounds of judgment with emphasis added by us: “[34] … The other occupants in the house in the forms of PW4, PW7 and PW8 could never be responsible for the injuries suffered by the deceased as this court finds that they did not have the opportunity to even be in close contact with the deceased. Gathering their evidence as a whole and in entirety, this court finds that unfortunately, PW4 and PW7 either could not care less as to what happened to the deceased or they were afraid of the accused. It must be emphasised again, they were all prohibited by the accused from interacting with the deceased when the deceased was kept in the room.”

It is therefore our understanding that the learned High Court judge did not find that the Appellant solely had physical access to room no. 1 of the House where the Victim stayed. The other occupants of the House also had physical access but they did not enter the room save for PW8 who on one occasion went in to play with the Victim. It is also not the Appellant’s defence that the death of the Victim was possibly due to PW8. He was then 11 years old and is implausible for him to have inflicted the injuries sustained by the Victim.

There is therefore no error here that warrants our appellate intervention.

The Appellant secondly submitted that the learned High Court judge made a fatal error when she found that the DNA profile on the PVC pipe except for that of the Appellant and the Victim which is inconsistent with the testimony of PW12 who discovered that there was DNA profile of another person “Individu 1” too on the PVC pipe. Thus, the Appellant 14 sought to impugn the following ground of judgment of the learned High Court judge by relying on the case of Nobies Weah Ezike v. Public Prosecutor [2009] 3 MLRA 138: “[53] … In addition, no other DNA profile was found on the objects i.e. mop and the pvc pipe except for the accused and the deceased. The irresistible inference leads only to the fact that it was the Accused who had inflicted the fatal injuries on the deceased.”

We are again of the view that the learned High Court judge’s finding as quoted by the Appellant must not be read in isolation but contextually against the rest of her grounds of judgment. In this respect the learned High Court judge pertinently also held as follows with emphasis added by us: “[18] PW11 was of the view that the subdural haemorrhage suffered by the deceased could have been caused by an impact such as being slapped as he found bruises on the deceased’s mouth, right side of his face and on the head. The cause of death is stated to be severe head injury due to blunt force trauma. The post-mortem report was marked as P30.

Based on the maximum evaluation of the evidence tendered through PW11, the court is satisfied that the second element has been proven that the deceased died as the result of the injuries suffered by him … [32] In addition, PW11 had also opined that the haemorrhage in the deceased’s brain which was fatal could have been caused from an impact such as being slapped as he had found bruises on the deceased’s mouth, on his right side of his face and on his head. As there was no one else who had entered the room except for the accused, this court finds that the accused must have slapped the deceased so hard that caused the haemorrhage to the deceased’s head internally.”

In the premises, we are of the view that although the PVC pipe might have been used to beat the Victim that resulted in bodily injuries, the traumatic fatal blow in the incident on 20th December 2015 as found was by way of a slap un-associated with the PVC pipe.

We are mindful that the Appellant in this connection also submitted that the learned High Court judge fell into error too by finding that the Victim’s blood stain on the wall in room no. 1 of the House could possibly be caused by the Victim’s head having been slammed on it. There was however no testamentary evidence to justify the same according to the Appellant. This is in our view immaterial in any event because the causative cause of fatal injury as found is due to slapping.

Consequently, there is also no error here that justified appellate intervention by us.

The Appellant finally submitted that the conviction is unsafe following the case of this Court in Hasan Nawali v. PP [2018] MLRAU 11 because both issues as highlighted in paragraphs [31] and [36] above raised reasonable doubt whether the Appellant had the intention to murder the Victim.

We have already in paragraphs [35] and [40] above found that both issues raised by the Appellant are inconsequential. Nonetheless and since the conviction has been based on circumstantial evidence, we 16 reminded ourselves of the following dicta of Thomson CJ in Chan Chwen Kong v. Public Prosecutor [1961] 1 MLJ 307 (CA): “In the first place we have listened to a careful, accurate and detailed analysis of the evidence against the appellant. 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 conviction. 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?” See also Low Kian Boon v. PP [2010] 5 CLJ 487 (FC).

Based on our review of the findings of the learned High Court judge, we noted that she has taken into consideration the following individual strands of evidence to arrive at the irresistible conclusion to convict the Appellant of the crime committed on 20th December 2015: i. multiple number and nature of the injuries on the Victim’s body as testified by PW11; ii. DNA profiling evidence as testified by PW12; iii. factual evidence as testified by PW2, PW4, PW7 and PW8 particularly on the exclusion of their involvement in hurting the Victim notwithstanding PW4, PW7 and PW8 had access to the room wherein the Victim stayed in the House; 17 iv. Appellant’s lie to PW3 that the Appellant’s friend had knocked down and caused the death of a male child and sought for PW3’s help to settle the problem of disposing of the body; v. Appellant’s subsequent lie to PW3’s father, Ngasri bin Salim (“PW6”) who met the Appellant (after having been informed by PW3 about the body) and was told that the body the child had been taken away by the child’s mother to be brought back to Pahang as well as the Appellant’s refusal to disclose the name and handphone number of the child’s mother; vi. Appellant’s conduct in prohibiting his wife, PW7 from allowing the Team to enter the House without a warrant; vii. Appellant’s attempt to flee when the Team broke open the House; and viii. concealment of the Victim’s body in the toilet of the House.

In such circumstances, we have no qualms that the combination of the abovementioned strands of evidence are adequate to sustain the conviction of the Appellant as found by the learned High Court judge.

Furthermore and albeit the cane that was discovered in the House with mixed DNA of the Appellant and Victim thereon is not the weapon that caused the death of the Victim, we also find it cogent in pinning intention and/or an act done with knowledge on the Appellant in respect of the infliction of bodily injuries on the Victim whether on 20th December 2015 or prior thereto based on ss. 14 and 15 of the Evidence Act 1950 18 and the case of Junaidi bin Abdullah v. Public Prosecutor [1993] 3 MLJ 217 (SC).

We are therefore satisfied that the conviction is safe and the appeal is therefore unmeritorious.

It is for the foregoing reasons that we dismissed the appeal as so ordered. Dated this 2th May, 2023 s.g.d LIM CHONG FONG JUDGE OF THE COURT OF APPEAL LIST OF COUNSELS: Counsels for Appellant Diar Isda Yazmin Ismail Solicitors for Appellant Shamsuddin & Co. Counsels for Respondent DPP Eyu Ghim Siang Solicitors for Respondent Jabatan Peguam Negara Malaysia LEGISLATION REFERRED TO: s. 300, 302 of the Penal Code. ss. 14 and 15 of the Evidence Act 1950. CASES REFERRED TO: Balachandran v. Public Prosecutor [2005] 1 AMR 321; Sunny Ang v. Public Prosecutor [1966] 2 MLJ 195; Isidro Leonardo Quito Cruz v. PP [2013] 2 CLJ 1025; Nobies Weah Ezike v. Public Prosecutor [2009] 3 MLRA 138; Hasan Nawali v. PP [2018] MLRAU 11; Chan Chwen Kong v. Public Prosecutor [1961] 1 MLJ 307; Low Kian Boon v. PP [2010] 5 CLJ 487; and Junaidi bin Abdullah v. Public Prosecutor [1993] 3 MLJ 217.