Mohd Zulhialmi Bin MD Darus v Pendakwa Raya (B-05(M)-521-11/2019)

Content

1 IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL: NO. B-05(M)-521-11/2019 MOHD ZULHIALMI BIN MD DARUS … APPELLANT HEARD TOGETHER WITH CRIMINAL APPEAL: NO. B-05(M)-522-11/2019 MUHAMMAD RAHMAT BIN NAZARUDIN … APPELANT HEARD TOGETHER WITH CRIMINAL APPEAL: NO. B-05(M)-523-11/2019 21/09/2022 09:33:03 B-05(M)-521-11/2019 Kand. 101 SITI NOR ASIAH BINTI ABDUL WAHAB … APPELANT [In The Matter Of High Court Of Malaya At Shah Alam Criminal Trial No: 45B-32-04/2017 & 45B-33-05/2017] Public Prosecutor V 1) Mohd Zulhialmi bin Md Darus 2) Siti Nor Asiah binti Abdul Wahab 3) Muhammad Rahmat bin Nazarudin CORAM: HANIPAH BINTI FARIKULLAH, JCA AHMAD NASFY BIN HJ YASIN, JCA NORDIN BIN HASSAN, JCA JUDGMENT OF THE COURT [1] In the present case, there are three separate appeals before us by the appellants against their convictions and sentence by the High Court Shah Alam Selangor. The 1st appellant, Mohd Zulhiami bin Md Darus and the 3rd appellant, Siti Nor Asiah binti Abdul Wahab were charged with abetting the 2nd appellant in an offence of murder whilst the 2nd appellant, Muhammad Rahmat bin Nazarudin was charged for an offence of murder of one Mohammad Fairul Haqimmie bin Mokhter (“the victim”). All the appellants were convicted by the trial judge and sentenced to death. [2] The 1st appellant’s appeal was registered as appeal No. B-05(M)- 521-11/2019, the 2nd appellant as appeal No. B-05(M)-522-11/2019 and the 3rd appellant with appeal No. B-05(M)-523-11/2019. [3] In the High Court, Mohd Zulhiami bin Md Darus was the 1st accused, Siti Nor Aishah Binti Abdul Wahab the 2nd accused and Muhammad Rahmat bin Nazarudin was the 3rd accused. For ease of reference, we will refer them as they were in the High Court. [4] The charge for abetment of murder against the 1st and 2nd accused are as follows: “Bahawa kamu pada 30 Ogos 2016 jam lebih kurang 4 pagi bertempat di No.5- 15B Apartment Villa Sentosa, Jalan Dato’ Yusof Shahbudin 3, Taman Sentosa, di dalam daerah Klang, di dalam Negeri Selangor, telah bersubahat bersama Muhammad Rahmat bin Nazarudin (KPT: 940312-10-5451) untuk membunuh seorang lelaki bernama Mohammad Fairul Haqimmie bin Mokhter (KPT: 950204- 06-5615) dan telah membunuh lelaki tersebut, di mana kesalahan tersebut telah dilakukan akibat persubahatan kamu. Oleh itu, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 109 Kanun Keseksaan yang dibaca bersama seksyen 302 Kanun Keseksaan.” [5] Meanwhile, the charge for the offence of murder against the 3rd accused is as follows: “Bahawa kamu pada 30 Ogos 2016 antara jam lebih kurang 4 pagi, bertempat di No. 5-15B, Apartment Villa Sentosa, Jalan Dato’ Yusof Shahbudin 3, Taman Sentosa, di dalam daerah Klang, di dalam Negeri Selangor telah membunuh seorang lelaki bernama Mohammad Fairul Haqimmie bin Mokhter (KPT: 950204- 6-5615) iaitu satu kesalahan di bawah seksyen 302 Kanun Keseksaan.” [6] We have heard the oral submission and read the written submissions by all parties as well as the records of appeal filed in this case. Having considered the evidence and the relevant laws, it is our unanimous decision that the appellants’ appeals are without merit, and as such, all the appeals are dismissed. Our analysis and decision are as follows. The Prosecution’s case. [7] On 29.8.2016 at about 9.00 am, Mohammad Fairul Haqimmie bin Mokhter (“the deceased”) left his family’s house at Felda Tersang 2, Raub Pahang to meet his girlfriend. On the same day at 6.10 pm, the deceased informed his elder brother via SMS that he had reached Klang, Selangor. After this date, the deceased father’s (SP4) attempts to contact the deceased were unsuccessful. This resulted in SP4 lodging a police report, Cheroh Report 646/16 (P15) on 2.9.2016 regarding his missing son. [8] Zairul Noraidi bin Shahidin (PW7), the eyewitness and also a key witness for the prosecution testified as follows. PW7 rented a three rooms apartment on the 5th floor, the detail of which is mentioned in the charge. One of the rooms he rents out to his friends Fairuz and Nurul Balqis binti Ali Ezudin (PW10), one room for his use, and another room for his ex-girlfriend, Siti Nor Asiah binti Abdul Wahab also known as Kira, the 2nd accused, who stayed there with her 5 years old son and a niece. PW7 visited the house once in a while as he stays with his mother at Sungai Udang, Klang, Selangor. [9] On 28.8.2016 at about 7.00 pm, PW7 met with the deceased at the apartment and was told by the deceased that the deceased was the new boyfriend of the 2nd accused. At the material time, PW7 was in the apartment with the 2nd accused and PW10. Then at about 7.30 pm, PW10 left the apartment to go to her mother’s house. Next at about 8.15, the 2nd accused went out to buy something using PW7’s motorcycle. After passed midnight, on 29.8.2016, a friend of PW7, Muhammad Rahmat bin Nazaruddin, the 3rd accused came to the apartment. PW7 then called the 2nd accused handphone but was unanswered. The 2nd accused also did not reply to the messages sent by PW7. [10] Next at about 3.00 am the same day, PW7 went out to buy some food and came back to the apartment at about 4.00 am. PW7 saw the 2nd accused in the living hall and when asked, she said she placed her son and niece at Euro Hotel, Klang. When asked why he placed them at the hotel, the 2nd accused said that she will inform him later. [11] The 2nd accused then asked PW7 to enter the 2nd room or the middle room of the apartment and told him to see in the room. (“cuba lah tengok dekat bilik tengah tu”). Thereafter, PW7 opened the door of the 2nd room and saw the 3rd accused strike the deceased 3 times with a stick on the deceased’s head until the stick broke resulting in the deceased falling on the floor. PW7 also saw blood on the floor and the wall in the room where the deceased was struck by the 3rd accused. [12] PW7 then asked the 3rd accused why he hit the deceased and he said that the 2nd accused paid him money to do it. [13] Thereafter, the 2nd accused then entered the room and met with the 3rd accused and PW7. She then asked the 3rd accused whether it was over (“dah selesai ke?”). At the same time, PW7 asked the 2nd accused why did she do it. (“Kenapa buat macam ni?”) and she answered that she was instructed by the 1st accused. The 3rd appellant also told PW7 that if he ran away, he will implicate PW7 with the incident. [14] Next, the 2nd accused discussed with the 3rd accused what they should do, and thereafter the 2nd accused suggested wrapping the deceased body. The 2nd accused then asked the 3rd accused and PW7 to wrap the deceased body. The 2nd accused also warned PW7 that if he refused to follow the instruction and if the incident is known by others, she will implicate PW7 with the incident. [15] PW7 had no choice but to adhere to the instruction and they wrapped the deceased body with a thin mattress in the 3rd room. The mattress was then tied with rope and cloth. Having wrapped the deceased body, the 2nd accused asked them to wait for the 1st accused. [16] Thereafter, at about 9.00 am, the 1st accused came to the apartment, and the 2nd accused asked PW7 and the 3rd accused to carry the deceased’s body down to the 1st accused’s Isuzu Dmax car that was waiting downstairs. This was done by them where the body was placed in the said car. The 2nd accused also accompanied them downstairs and met with the 1st accused who was in the car. The car was driven by the 1st accused’s niece, Apit, and the 1st accused also asked the 3rd accused to follow him in the car. Next, the 2nd accused asked PW7 to wait at the apartment with her for the 1st and 3rd accused to return to the apartment. [17] After both the 1st and 3rd accused had returned to the apartment, the 2nd accused asked PW7 to clean the house, in particular the blood stain on the wall and floor. PW7 acceded to this request and cleaned the house together with the 3rd accused whilst the 2nd accused sat in the living room. The pillow and blanket with blood stains were then put in a bag and were later burned by the 2nd accused. [18] Next, the 1st accused asked the 2nd accused and PW7 to follow him to Langkawi in his car. He also threatened PW7 that if he refused to follow, the 1st accused will blame him for the incident that happened. Thus, out of fear, PW7 complied with the request and he together with the 2nd accused followed the 1st accused to Langkawi. The 3rd accused did not follow them as he was asked by the 1st accused to go home and told that he will bank in all transactions. (segala transaksi akan dilakukan secara bank in). [19] On the way to Langkawi, Kedah, PW7 heard the 2nd accused asked the 1st accused, as to where to burn the deceased bag and clothes to which the 1st accused answered to burn it in the jungle. Thereafter they stopped the car near a jungle at Sungai Buaya, Teluk Intan, Perak, and the 1st accused burned the deceased’s bag and clothes. The bag was brought by the deceased when the deceased came to the apartment to meet the 2nd accused. [20] In Langkawi, PW7 and the 2nd accused stayed at a rented house of the 1st accused’s friend but not even a day, PW7 ran away and boarded a bus to Larkin, Johor as he overheard the conversation between the 1st accused and the 2nd accused over the phone, where 1st accused wanted to kill PW7. [21] Another witness called by the prosecution, Rizaka bin Jamaluddin (PW9) testified that he worked with the 1st accused and on 30.8.2016 the 1st accused invited him and his wife to go to Kuala Lumpur to celebrate Merdeka Day. They went to Kuala Lumpur with the 1st accused’s Isuzu Dmax car driven by the 1st accused’s niece, known as Apit. Upon reaching an apartment in Kuala Lumpur, PW9 saw 2 men from upstairs carrying a wrapped mattress which he does not know its content. The mattress was put at the back of the Isuzu Dmax and the 3rd accused asked the mattress to be brought to a river. The 3rd accused accompanied them and showed the way to the river. In the car were, the 1st accused, the 3rd accused, Apit, PW9, and his wife. Having reached the river, the 1st and 3rd accused carried the mattress to the river bank and PW9 was also asked to carry the same. Then the mattress was thrown by them in the river. [22] They all then went back to the apartment, where PW7 and the 2nd accused followed them into the car and went to Langkawi. On the way, PW9 saw the 1st accused burned a bag but PW9 was not sure of its content. Later, PW9 and his wife went back to his house in Pekan, Pahang. [23] The next important prosecution witness was PW10. She testified that on 29.8.2016 at about the time for maghrib prayer, PW10 rode a motorcycle with her sister to the apartment to collect her belongings as she was no longer staying in the apartment. On the way there, she was stopped by the 2nd accused at the garden below the apartment. The 2nd accused was with her son and niece. Having been informed by PW10 that she was on the way to their apartment, the 2nd accused told her to collect her belongings some other day. The 2nd accused then shouted PW7’s name from downstairs and thereafter PW10 saw the deceased standing near the corridor of their unit apartment. PW10 recognized the deceased as the 2nd accused had shown the deceased picture to her before this and told her that the 1st accused had promised to pay her RM2500 to trap the deceased and pretend to be the deceased’s girlfriend. She also told her that the 1st accused wanted to hit the deceased as the deceased had implicated the 1st accused. [24] On the 30.8.2016 and 3.9.2016, amounts of RM500 and RM1000 respectively were banked in the 3rd accused’s bank account in CIMB bank. [25] The deceased body has never been found to date. The decision of the trial judge at the end of the prosecution case. [26] Having considered all the evidence presented by the prosecution on a maximum evaluation, the trial judge found that the prosecution had proved a prima facie case against all the accused on the charge proffered against them. In coming to this decision, the trial judge found that all the elements to establish the charges had been proven, and the offence of murder was established by the application of clause (c) of section 300 of the Penal Code. Thus, all the accused were called to enter their defence. The Defence. The 1st accused [27] The 1st accused gave evidence on oath and he testified that on 30.8.2016 he went to Kuala Lumpur with PW9, PW9‘s wife, and his niece Apit to celebrate Merdeka Day. They went there in the 1st accused’s Isuzu Dmax car. As they were about to reach Kuala Lumpur, the 1st accused received a call from the 2nd accused asking him to fetch her at her apartment as she also wishes to celebrate Merdeka Day. Upon reaching the said apartment, the 1st accused met with PW7 and another man. They waited for the 2nd accused for about 10 to 15 minutes but she did not turn up. Thereafter PW7 approached them and asked whether they can help him to throw some rubbish as he wanted to move house. When the 1st accused agreed to help, PW7 and the other man went upstairs and brought down the rubbish that was wrapped with something like a carpet. The rubbish was then put at the back of his car and PW7 said that the rubbish was to be thrown in the Klang River. PW7 then showed the way to a river and then the rubbish was thrown in the river by PW7 and the man that the 1st accused saw earlier also follow them in the car. After that, they went back to the apartment and thereafter, the 1st accused, PW9 and his wife, Apit went to Ipoh and later returned to Pekan, Pahang. Then only they went to Langkawi, Kedah. [28] Essentially, the 1st accused denied any involvement with the murder of the deceased and did not know that the rubbish that was wrapped with a carpet was the deceased body. The 2nd accused [29] The 2nd accused also gave evidence under oath and her evidence was that she never met with the deceased at all. Her relationship with the deceased was only on social media and through the telephone. She also denied asking the deceased to come to the said apartment in Klang. She further testified that on the material time and date, she had not communicated with the deceased and had no knowledge that the deceased will come to the apartment. The 2nd accused also said that she does not know the 3rd accused or met him at any time. Next, she denied having been involved in abetting the murder of the deceased. The 3rd accused [30] The 3rd accused in his sworn statement also denied any involvement in the murder of the deceased. He testified that he went to the apartment only 3 times and the last time was on 28.6.2016. He did not know the 1st and 2nd accused and never met or heard the deceased name. On 30.8.2016, he initially said that he was under detention for another offence but later clarified that he was at work on that date based on his punch card at his office. The decision of the trial judge at the end of the case. [31] Having analyzed and considered the evidence presented by the defence and other evidence in totality, it was the finding of the trial judge that the defence by all the accused was unreasonable and not credible or raised any reasonable doubt on the prosecution case. Thus, the prosecution had proved its case against all the accused beyond any reasonable doubt and convicted them on the charges as proffered against them. They were all sentenced to death as provided under the law. [32] In the grounds of judgment, the trial judge concluded at the end of the case as follows: “Setelah saya meneliti serta menghalusi akan keterangan dari saksi-saksi pendakwaan yang seramai 12 orang kesemuanya, serta mendengar dan menghalusi akan keterangan dari tertuduh-tertuduh sendiri, setelah meneliti serta menimbangkan akan penghujahan di setiap peringkat, meneliti kepada kedudukan undang-undang yang berkaitan dengannya, mengkaji otoriti-otoriti kes yang dikemukakan, menilai serta menimbang kepada keterangan secara keseluruhannya, dengan ini mencapai suatu keputusan iaitu pihak pembelaan di peringkat akhir kes pembelaan ini telah gagal menimbulkan sebarang keraguan yang munasabah terhadap kes pihak pendakwaan. Tiada keterangan berjaya dikemukakan bagi tujuan menimbulkan keraguan yang mnasabah. Sehingga ke akhir kes pembelaan ini, jelas bahawa pihak pendakwaan telah berjaya membuktikan kes mereka melampaui keraguan yang munasabah. Meneliti kepada scenario kes ini secara keseluruhannya, didapati yang keterangan yang ditampilkan melalui saksi-saksi pendakwaan adalah begitu “overwhelming” yang menunjukkan akan peranan yang dimainkan oleh ketiga-tiga tertuduh sehingga membawa kepada pembunuhan tragik ke atas Muhamad Fairul Haqimmie di masa dan di tempat kejadian seperti pertuduhan. (emphasis added) The appeal and issues raised by counsels for the accused before this court. [33] The issues submitted by counsels for all the accused in their oral and written submissions cumulatively are as follows:

Subparagraph

(ii) The trial judge had misdirected himself in the application of accomplice evidence;

Subparagraph

(iii) The trial judge failed to consider that the circumstantial evidence presented by the prosecution was insufficient to prove the amended charges against all the accused;

Subparagraph

(iv) The trial judge failed to make a finding that the element of abetment has been proven against the 1st and 2nd accused;

Subparagraph

(vi) The trial judge erred in applying an adverse inference against the defence for non-calling of witnesses mentioned in the defence case.

Subparagraph

(vii) The trial judge erred in applying section 34 of the Penal Code in the present case; The analysis and decision of this court. [34] It is settled law that for the prosecution to establish an offence of murder punishable under section 302 of the Penal Code, the ingredients to be proved by the prosecution are the death of the deceased, the deceased died as a result of the injuries suffered, the injuries were caused by the accused and the accused’s act comes within one or a combination of the limbs under section 300 of the Penal Code. [35] Section 300 of the Penal Code provides as follows: “Except in the cases hereinafter excepted, culpable homicide is murder—

Subparagraph

(ii) the nature of the injury must be proved;

Subparagraph

(iii) it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended; and

Subparagraph

(iv) it must be proved that the injury of the type described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature.” (emphasis added) [39] The Federal Court in the same case, further explained the interpretation of the burden to prove intention under clause (c) of section 300 and its application in the following manner: “[50] It follows that where the case falls under cl. (c) of s. 300 of the Penal Code, there is no requirement for the prosecution to prove intention to cause death under cl. (a), or knowledge of the likelihood of death under cl. (b) or knowledge of the imminent danger of the act under cl. (d). What the prosecution needs to prove in order to bring the case under cl. (c) of s. 300 is to show that the injury proved to be present was caused intentionally and not accidentally and that the injury was sufficient in the ordinary course of nature to cause death. [51] We need to come back to Virsa Singh to hopefully clear the point beyond controversy. In that case, counsel for the appellant had in fact argued that the ‘intention’ that cl. (c) of the Indian Penal Code requires must be related not only to the bodily injury inflicted but also to the clause “and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death”. The Supreme Court disagreed and the reason for its disagreement was this: This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and, in that event, the thirdly would be unnecessary because the act would fall under the first part of the section, namely: If the act by which the death is caused is done with the intention of causing death. [52] This exposition by the Supreme Court dispels any notion that under cl. (c) of s. 300 of the Penal Code, the prosecution is required to prove that the bodily injury intended to be inflicted was intended to cause death in the ordinary course of nature. The only requirement under cl. (c) is for the prosecution to prove that the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. [53] The ‘intention’ or the mens rea element of murder under cl. (c) of s. of the Penal Code must not be coalesced with the ‘intention’ or the mens rea element of murder under cl. (a). Under cl. (a), death is the intended consequence and death results as intended, whereas under cl. (c), death is not the intended consequence but death results, not because death is intended but because the bodily injury intended to be inflicted is of a kind that is sufficient in the ordinary course of nature to cause death.” (emphasis added) [40] In addition, it is also trite that intention cannot be proved by direct evidence but could be inferred from the accused act and the surrounding circumstances. (see Tham Kai Yau & Ors v PP [1977] MLJ 174 (FC); Dato Mokhtar Hashim & Anor v PP [1983] 2 CLJ 10 (FC); Khoo Hi Chiang v PP & Another case [1994] 2 CLJ 151 (SC); Mohd Shawal bin Abdullah v Pendakwa raya (Rayuan Jenayah K-05(M)-160- 04-2016) (CA)) [41] Reverting to the present case, the evidence established in court through direct evidence of PW7 was that the 3rd accused struck the deceased on the head three times with a stick resulting in the deceased falling on the floor. The strike was so hard that the stick broke. PW7 also saw blood on the wall and floor in the said room. Evidence also revealed that the 3rd accused hit the deceased as he was paid to do so. As such, we find beyond doubt that the 3rd accused intended to cause injury to the deceased. [42] Further, based on the evidence before the court, we also agree with the trial judge that the injury caused to the deceased in the ordinary course of nature caused death. This involved a finding of facts and the determination by the trial judge. We do not see any error in this finding. Although the deceased body was never found and as such no post-mortem was conducted, this does not hinder the trial judge to make such a finding based on the available evidence before the court as alluded to earlier. In the circumstances, clause (c) of section 300 had been proven by the prosecution. (see Sunny Ang v Public Prosecutor [1966] 2 MLJ 1965) [43] Now we shall deal with the issues raised by counsels for the appellants. The issue of whether the failure of the trial judge to order the amended charge to be read and explained to all the accused had resulted in a miscarriage of justice. [44] In this case, at the end of the prosecution case, the prosecution had made an application to amend the charges against the appellants. The amendment was as regard to the date of the offence which was 30.8.2016 from the earlier date in the charges which was 29.8.2016. These amended charges were not read and explained to all the accused. [45] Counsels for the accused contended that the omission for the charges to be read and explained to the appellants was in contravention with section 158(2) of the Criminal Procedure Code (“the CPC”) which provides: “158. (1) Any Court may alter or add to any charge at any time before judgment is pronounced.

Subsection

(2) Every such alteration or addition shall be read and explained to the accused.” (emphasis added) [46] Further, it was submitted that all the accused were deprived of their rights to recall any witnesses as allowed under section 162 of the CPC which provides: “162. Whenever a charge is altered or added by the Court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or re-summon and examine, with reference to the alteration or addition, any witness who may have been examined, and may also call any further evidence which may be material.” (emphasis added) [47] Therefore, it was contended that the omission to read and explain the amended charges and the deprivation of the accused’s rights to recall any witnesses had caused a miscarriage of justice. [48] On this issue, it is an undisputed fact that the amended charges were not read nor explained to the appellants. The issue here is whether this omission had caused a miscarriage of justice and was fatal to the prosecution case. [49] In deciding on this issue, firstly, the word “shall” under section 158(2) of the CPC is not necessarily mandatory but only a directory, especially when no miscarriage of justice occurs. We find support in the Supreme Court case of Hee Nyuk Fook v Public Prosecutor [1988] 2 MLJ 360 where the same issue was raised for the court determination. In that case, the questions of law that were referred to the Supreme Court were as follows:

Subparagraph

(ii) If the answer to (a) is in the affirmative, then is the omission to read and explain the amended charge to an accused person a mere irregularity which can be cured by recourse to section 422 of the Criminal Procedure Code” Section 158(ii) is the present section 158(2) of the CPC. [50] Question (i) was answered by the Supreme Court in the negative and question (ii) was answered in the affirmative. [51] Syed Agil Barakhbah SCJ delivering the judgment of the Court said this: “It was submitted that non-compliance with the provision of section 158(ii) of the Criminal Procedure Code is an irregularity which is not curable under section 422 of the Code. Section 158 states: "(i) Any court may alter or add to any charge at any time before judgment is pronounced or in the case of trials by jury or trials with the aid of assessors before the verdict of the jury is returned or the opinions of the assessors are expressed.

Subparagraph

(ii) Every such alteration or addition shall be read and explained to the accused." Section 422 of the Code says: "Subject to the provisions contained in this Chapter no finding, sentence or order passed or made by a court of competent jurisdiction shall be reversed or altered on account – of any error, omission, or irregularity in the complaint, summons, warrant, charge, judgment or other proceedings before or during trial, or in any inquiry or other proceeding under this Code; or … unless such error, omission, improper admission or rejection of evidence, irregularity, want or misdirection has occasioned a failure of justice."[1988] 2 MLJ 360 at 362 The question that arises is whether section 158(ii) is mandatory or directory. In our view, the word "shall" appearing therein, though generally taken as mandatory, does not mean to be so in every case. No hard and fast rule can be laid down because it depends on the facts and circumstances of a particular case, the purpose and object for which such provision is made, the intention of the legislature in making the provision and the serious inconvenience or injustice which may result in treating the provision one way or the other (see Interpretation of Statutes by Bindra, 7th Ed., p. 662). We are of the view that the safest way is to look into the subject-matter of the case, consider the importance of the provision that has been disregarded, the relation of the provision to the object of the Code, and decide in that order whether the matter is imperative or only directory (see Howard v Bodington (1877) 2 PD 203 at p 211). Applying the test to the facts and surrounding circumstances of the case, we hold that in so far as this case is concerned, the provision of section 158(ii) is not imperative but directory. The provisions contained therein only lay down a rule of procedure and do not relate to the mode of trial. A fortiori in the light of the provision of section 422 of the Code. The nature of the amendment being purely technical and in no way substantial has not rendered the omission to read over and explain the amended charge to the applicant at the close of the defence a serious irregularity as to vitiate the proceeding or has occasioned a failure of justice” ……. “... There was therefore no necessity at all for the President of the Sessions Court to read over and explain the amended charge to the applicant before proceeding to convict the applicant. If at all there was any necessity, the occasion to do so does not amount to an irregularity which has occasioned a failure of justice and in any way prejudiced the trial by virtue of section 422 of the Code.” (emphasis added) [52] Reverting to the present case, the pertinent thing here, based on proven facts, we do not find any miscarriage of justice suffered by the appellants or any prejudicial effect on all the accused on this issue. Our reasons are as follows. The amendment only as to the date of the offence which is from 29.8.2016 to 30.8.2016. The rest of the particulars of the charges remained the same and certainly does not change the nature of the charges. More importantly, the defence presented by all the accused shows that they appreciated the charges and does not in any way shows that they were confused or misled by the amended charges. In their defence, they also made references to the amended date in the charges which was 30.8.2016. Their defence covers the date in the amended charges. This includes the alibi defence by the 3rd accused on both the dates of 29.8.2016 and 30.8.2018. Thus, we do not find any miscarriage of justice against the appellants regarding this issue. [53] In addition, all the accused were represented by counsels during the trial, the counsels may apply to the court, if need be, to recall any witness, and the omission of the trial judge to inform the accused’s rights to recall any witnesses does not affect the decision of the case. In Azhar Che Wil v PP [2010] 8 CLJ 905, Raus FCJ explained the issue in the following manner: “[30] The only complaint by Mr. Karpal Singh was that had the charge been amended, the accused would have had the opportunity to recall or re-summon and examine any witness and to call further evidence which may be material to his defence. But we are of the view that even without the charge being amended, the 1st accused is not precluded from recalling or re-summons any witness or to call for further evidence. Cases have shown that even if a charge is amended, but where an accused person is represented by counsel, the trial judge is not obliged to inform the accused person of his right under s. 162 to recall any of the witnesses for the prosecution. In Moosa Abdul Rahman v. The State of Kerala [1982] Cr LJ 1384, the full bench of the High Court of Kerala held that s. 217 of the Indian Criminal Procedure Code 1974 (which is in pari materia with our s. 162 ): ... does not cast a duty or obligation on the court to enquire of the prosecution or the accused whether they would like to recall or re-summon the witnesses... or to call any further witnesses. The omission of the court to 'enquire of the prosecution or the accused whether they would like to exercise the right of re-calling or re-summons the witnesses would not result in any procedural illegality'. [31] The above proposition was accepted by the Court of Appeal in Msimanga Lesaly. Gopal Sri Ram JCA (as he then was) held that where an accused is represented by counsel it is unnecessary for the court to draw counsel's attention to s. 162 of the Criminal Procedure Code or to inquire whether counsel intends to exercise the right conferred by the section. [32] We endorsed the above view. In the present case, the 1st accused was represented by counsel. Even though the charge was not amended, there is nothing to prevent the defence from recalling or re-summoning any witness or to call further evidence. This was not done. Thus, the question of miscarriage of justice, as advanced by Mr. Karpal Singh does not arise at all.” (emphasis added) [54] In the circumstances, it is our considered view that the issue related to the amendment of charges raised by the counsels is bereft of any merit. The issue of accomplice evidence. [55] Counsel for the accused submitted, in essence, that PW7 was an accomplice, his evidence was uncorroborated and the trial judge had failed to warn himself of the danger in accepting uncorroborated of an accomplice. On this issue, the relevant provision to be considered is section 133 of the Evidence Act which states: “133. An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.” (emphasis added) [56] Here, the first question that needs determination of this court is whether PW7 was an accomplice based on his act and involvement in the commission of the offence as stated in the charges. [57] The law on accomplices is well settled. There is a plethora of cases by the apex court that laid down the principle of law on accomplice evidence. Essentially, accomplices are persons who are participes criminis in respect of the actual crime charged. This court in Pasupathy a/l Kanagasaby v Public Prosecutor [2005] 1 MLJ 493 mentioned this about persons who are accomplices: “[33] The word ‘accomplice’ is defined in the Oxford Dictionary of Law (5th Ed) as ‘One who is a party to a crime, either as a principal or as an accessory. The Cambridge Advanced Learner’s Dictionary (2003) describes him as ‘A person who helps someone else to commit a crime or to do something normally wrong’. Lord Simonds LC in Davies v DPP [1954] 1 All ER 507; [1954] 2 WLR 343 states the question to ask in determining whether a person is an accomplice as: ‘Is there any evidence upon which the trial judge could properly rule that X was a participant in the offence?” (emphasis added) [58] In a Federal Court case of Francis Anthonysamy v Public Prosecutor [2005] 3 MLJ 389 the issue of who is an accomplice was explained further as follows: “...The question that arises is whether on these facts he can be termed as an accomplice. In Davies v Director of Public Prosecutions [1954] 1 All ER 507 it was held that persons who are particeps criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact, are accomplices. In explaining the role played by these categories of persons the Law of Evidence by Woodroffe and Amir Ali (16th Ed) (Vol 4) says at p 3434-5: A principal of the first degree is one who actually commits the crime; a principal of the second degree is a person who is present and assists in the perpetration of the crime; an accessory before the fact is one who counsels, incites, connives at, encourages or procures the commission of a crime; everyone is an accessory after the fact to a felony who, knowing a felony to have been committed by another, receives, comforts or assists him in order to enable him to escape from punishment; or rescues him from arrest for the felony; or having in custody for the felony, intentionally and voluntarily suffers him to escape; or apposes his apprehension.” (emphasis added) [59] Reverting to the facts in the present case, PW7 had no prior knowledge of the offence to be committed by all the accused. He was merely present at the crime scene and saw the 3rd accused strike the deceased on the head as he entered the room when asked by the 2nd accused. Thereafter PW7 was threatened by the 2nd accused to wrap the deceased’s body with a mattress and later to carry the body into the 1st accused’s car. PW7 was then threatened by the 1st accused to follow them to Langkawi but later ran away from the house in Langkawi when he overheard the conversation that the 3rd accused intended to kill him. PW7 had not played an active role in the commission of the offence charged. In the circumstances, we find PW7 was not an accomplice and the trial judge was correct in treating him as an ordinary prosecution’s witness. [60] On the same issue, the Federal Court in Kuan Ted Fatt v Public Prosecutor [1985] 1 MLJ 211 affirmed the decision of the Court of Appeal and the trial judge in deciding that a witness, PW14, was not an accomplice as he did not participate in the commission of the offence or had no prior knowledge that the accused intended to commit the offence. Seah FJ in that case explained the issue as follows: “For the Public Prosecutor, the learned Senior Federal Counsel had submitted that there was no evidence at the trial that PW14 Fam had taken part in the offence of murder. On the other hand PW14 was not aware that the appellant was carrying a knife hidden at the back of his trousers pocket and that PW14 did not know that the appellant had intended to use a knife to kill the deceased. In other words, PW14 had no prior knowledge that the appellant had intended to commit the offence charged. In our judgment, and having regard to the principle enunciated in Davies v Director of Public Prosecutions [1954]] AC 378 the learned counsel for appellant failed to establish that PW14 Fam participated in the offence of murder and on the evidence produced before the trial Court, the learned judge was right in not regarding PW14 as an accomplice.” (emphasis added) [61] In any event, besides the provision of section 133 of the Evidence act 1950 with regard to the competency of an accomplice as a witness, the evidence of PW7 was corroborated, in particular, by PW9 and PW10. These witnesses were found as credible witnesses by the trial judge. In the grounds of judgment, the trial judge said this: “Keterangan saksi-saksi pendakwaan sebelum ini iaitu SP7, SP9 dan SP10 adalah kredibel dan boleh dipercayai.” [62] It is also trite that the credibility of a witness is best determined by the trial judge who has the audio-video advantage of assessing the witness. (see Lee Ah Seng v PP [2007] 5 CLJ 1(FC); PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 (FC); Md Zainuddin bin Raujan v Public Prosecutor [2013] 4 MLJ 596(CA)) [63] We also noted that the trial judge did not canvass the issue of an accomplice in his grounds of judgment. Be that as it may, we had reviewed the evidence before us and found that PW7 was not an accomplice. In the Federal Court case of Ahmad Najib Aris v PP [2009] 2 CLJ 800, it was explained as follows: “I am of the view that the Court of Appeal has the power to review or to re-evaluate all the evidence available as adduced by the prosecution. The Court of Appeal is in the position to do so in the present case even though the grounds of decision of the trial judge as appearing in the appeal records is found lacking in specific findings and with no reasons for the findings. In a case involving purely question of fact, the Court of Appeal is free to determine whether or not the various findings of the trial judge are correct (see Mohamed Mokhtar v PP [1972] 1 MLJ 122.)” (see also PP v Azilah Hadri & Anor [2015] 1 CLJ 579) [64] As such, it is our view that the issue of accomplice raised by counsel for the appellants is untenable. The issue whether the trial judge failed to consider that the circumstantial evidence presented by the prosecution was insufficient to prove the amended charges against all the accused and whether without the deceased body, the death and the cause of death cannot be determined. [65] On this issue, counsel for the 3rd accused submitted that the circumstantial evidence before the court failed to prove the offence of murder against the 3rd accused. [66] It is trite law that where the prosecution is relying on circumstantial evidence to prove its case, the circumstantial evidence must irresistibly point to one and only one conclusion which is the guilt of the accused and in this case all the accused. (see Dato Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232 (FC)) [67] However, in the present case, the prosecution was not only relying on circumstantial evidence, in particular, the evidence of PW9 and PW10 but also the direct evidence of PW7 who was at the scene and saw the 3rd accused strike the deceased on the head three times with the stick until the stick broke. [68] Here, we have analyzed the totality of the evidence before the court and agree with the trial judge that the prosecution had proved all the elements of the amended charges against all the accused. The deceased death was established by the evidence of PW4, PW5, and PW6 who testified that the deceased did not return home after he left home on 29.8.2016. PW10 then confirmed that the deceased picture (P36) was the person that she saw at the apartment on the material date. The evidence of PW7 then established the fact that the 3rd accused intentionally inflicted the injury on the deceased which was found in the ordinary course of nature caused death. Hence, clause (c) of section 300 had been proven as discussed earlier in this judgment. [69] Failure to find the deceased body as mentioned earlier, does not prevent a conviction of the offence of murder if the evidence is sufficient to prove the offence beyond a reasonable doubt. The classic case of Sunny Ang (supra) is an example to support this contention. The evidence in this case is much stronger in comparison with the prosecution’s evidence in Sunny Ang. In the present case, there is an eye witness that saw the commission of the offence of murder at the apartment whilst in Sunny Ang’s case, there was no eye witness, the prosecution was relying purely on circumstantial evidence. Yet, in Sunny Ang’s case, the conviction for the offence of murder was affirmed by the Federal Court. [70] As such, we also find that the issue of insufficient circumstantial evidence raised by the counsel for the 3rd accused is without merit. The issue that the trial judge failed to make a finding that the element of abetment has been proven against the 1st and 2nd accused and the error by the trial judge in invoking section 34 of the Penal Code. [71] On this issue, it was submitted that the trial judge had failed to make a finding of the offence of abetment of murder against the 1st and the 2nd accused. Further, it was contended that the judge had wrongly applied common intention under section 34 of the Penal Code in the present case. [72] As regards the offence of abetment of murder against the 1st and 2nd accused, it is instructive to refresh our memory of the law about abetment. Under section 107 of the Penal Code, abetment is proven by instigation to commit the offence, or commands any person to do it, or by engaging in a conspiracy to commit it, or intentionally aiding a person to commit it. [73] Section 107 provides: “107. A person abets the doing of a thing who—