Nasir Bin Ramli v Public Prosecutor (Q-05(M)-244-04/2018)

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1 IN THE COURT OF APPEAL OF MALAYSIA CRIMINAL APPEAL NO.:Q-05(M)-244-04/2018 BETWEEN NASIR BIN RAMLI … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In The High Court of Sabah and Sarawak at Miri Criminal Trial No. MYY-45B-2/1-2017 Between Public Prosecutor … Prosecutor And Nasir Bin Ramli … Accused] CORAM: ZABARIAH MOHD YUSOF, JCA SURAYA OTHMAN, JCA KAMALUDIN MD SAID, JCA 2 JUDGMENT OF THE COURT INTRODUCTION [1] Nasir bin Ramli (“the appellant”) was charged under section 302 of the Penal Code for the murder of one Norfisa binti Othman (KP: 900913-13- 6062) ("the deceased"). On 29th March 2018, the learned Judge of the High Court in Miri, Sarawak found the appellant guilty of the offence of murder and sentenced him to death accordingly. The appellant now appeals to this Court. [2] The charge against the appellant reads as follows: "That you, on 5th June 2016 at about 11 am until 1 am on 6th June 2016, at Jalan Dato’ Permaisuri 2C, Permyjaya, in the district of Miri, in the State of Sarawak, with the intention of committing murder, did cause the death of Norfisa binti Othman (P) No KP: 900913-13-6062, and you have thereby committed an offence which is punishable under section 302 of the Penal Code." BRIEF FACTS [3] Sifwandi bin Othman (“PW10”) who is the elder brother of the deceased, testified that on the 5.6.2016 at about 10 pm, at their family house 3 at Permyjaya, the deceased asked for his permission to go out to meet her friend. When the deceased did not return home after she went out on the night of 5.6.2016, PW10 then lodged a police report on the 7.6.2016 ("Exhibit P6"). [4] Corporal Norhayati @ Elsie Ak Peter Kiang (“PW5”) was on duty at the Enquiry Counter, Central Police Station (“CPS”), Miri on 6.6.2016 and at about 1.20 am she received a phone call from the medical assistant named Anslem, of Miri Hospital informing her that an unconscious female patient was sent into the hospital in a critical condition with foam and blood coming out from her mouth. PW5 then informed Inspector Noor Rahimah (“PW8”) about the information she had just received for PW8 necessary action. [5] On the same day, at about 2.05 a.m. Corporal Henry anak Sandai (“PW7”), while on duty at the Enquiry Counter, CPS Miri received a phone call from PW8 and was informed that the said female patient had already passed away. He lodged a police report, marked as Exhibit P15. [6] PW8 testified that upon receiving the information from PW5, she immediately went to the Miri Hospital to check on the condition of the said 4 female patient. On arrival, she saw that the doctors were treating and trying to save the female patient's life at the Emergency Unit of Miri Hospital. At about 2.00 am, one of the doctors who treated the victim informed PW8 that the said female patient had passed away. PW8 immediately called CPS Miri and informed PW7 accordingly. This female patient is identified as the deceased in the present case. [7] Ahmad Fayri bin Suani (“PW9”) is a medical assistant who received the deceased at the entrance of the Emergency Unit, Miri Hospital. The deceased came in a car driven by the accused's father by the name of Ramli Bin Yusuf (“PW13”). PW13 was accompanied by his wife and his daughter when he sent the deceased to Miri Hospital. [8] PW9 testified that when the said car arrived at the Emergency Unit, Miri Hospital, he was approached by one lady asking for his help. He went to the said car and found the deceased lying on another lady's lap at the back-passenger seat of the car. He checked on the deceased's condition and found that there was no pulse. He also noticed that there were vomit stains on the deceased's face. With the assistance of his colleague, Anslem, he immediately lifted up the deceased onto the trolley and 5 performed the CPR before proceeding to the red zone. At the red zone they handed over the deceased to Dr. Patrick (“PW15”) who was the doctor in charge at that material time. [9] The evidence of the accused’s father, PW13 was that the deceased and the accused were lovers and the accused had on previous occasions brought the deceased to their family house at Lot 11268, Jalan Perdana 5, Tudan Desaras, Miri. [10] PW13 testified that when the accused was at their house, he complained that the deceased had blocked his handphone number. The accused later went out that night using PW13's car i.e. a Proton lswara Aeroback with registration number QTC 8167 and upon returning home at around 11.00 pm that night, PW13 noticed the deceased was sitting on the front passenger seat of the car parked outside the house in a state of semi-consciousness. When he inquired what happened to the deceased, the accused replied that the deceased had fallen off from the car when the car driven by him was still moving. [11] As the accused refused to send the deceased to the hospital, PW13 volunteered to send the deceased to the Miri Hospital accompanied by his 6 wife and daughter. On arrival at the Miri Hospital, they were met by PW9 who then took charge of the deceased. [12] PW13 in his evidence told the Court that he had informed PW9 that he had found the deceased by the roadside because he was too scared to tell the truth as this was his first experience in handling such a situation. [13] The autopsy of the deceased was conducted by Dr Nurina binti Ahmad (“PW19”), the forensic medical doctor on 9.6.2016 at about 10.00 am at Miri Hospital. However, PW19 ceased performing the autopsy after she discovered hematoma (blood clot) under the scalp and fracture of the skull on the head of the deceased which was suspicious in nature. PW19 then contacted PW2, a senior pathologist to continue with the post mortem. [14] On 12.6.2016 at about 8.45 am, Dr. Norliza binti Ibrahim (“PW2”) conducted a further autopsy on the deceased at Miri Hospital. In her autopsy report (“Exhibit P7”), she stated that the cause of the deceased's death was head injury due to blunt force trauma. [15] The investigating officer of the case is ASP Dorairajah (“PW3”). In his initial investigation, he found that the deceased had previously lodged two 7 police reports, dated 6.5.2016 (“Exhibit P21”) and 12.5.2016 (“Exhibit P22”) respectively. In the first report, the deceased had complained that she was beaten by the accused and in the second report, the deceased complained that she was threatened by the accused with the words “jaga-jaga kitak lepas tok” (which literally means "you watch out after this"). The threat was issued as the accused was not happy with the deceased for lodging the first police report. [16] On 24.8.2016, the accused was arrested by DSP Sarifuddin Bin Mustapha (“PW4”) in a house at Lot 197 Kpg. Semariang Batu, Kuching. The accused was found hiding underneath the bed inside the bedroom of the said house. The accused was later escorted and flown from Kuching to Miri to obtain a remand order at Miri Court. [17] On the 31.8.2016, Nasrul Hadi Bin Jahat (“PW6”) recovered the iron rod i.e. "besi pemotong kertas" (Exhibit “P9”) from the accused family house at Lot 11268 Tudan Desaras. The iron rod was found inside a toolbox at the front area of the said house. The recovery of Exhibit P9 was linked to it being the weapon used by the accused to kill the deceased. 8 [18] According to PW13, Exhibit, P9 was kept by him in his Proton car for his protection whenever needed during his employment as a bouncer a few years back. The case for the Prosecution [19] At the close of the prosecution's case, learned DPP submitted that they had established a prima facie case against the appellant. Having regard to the charge, the burden is on the prosecution to prove the following elements of the offence of murder as provided under sections 299 and 300 of the Penal Code:

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(ii) that the injuries were caused by the appellant;

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(iii) that the act of the appellant in inflicting such injuries on the deceased came within the ambit of any one of the four circumstances listed in section 300(a) to (d) of the Penal Code. [20] The family members of the deceased (“PW10 and PW11”), the pathologist (“PW2”) and the rest of the medical team had identified the body 9 of the deceased. The deceased was confirmed to be Norfisa binti Othman who was pronounced dead upon her admission into Miri Hospital. [21] According to the evidence of the forensic pathologist, PW2, through her examination, she had found that there was blunt force trauma to the deceased's head as evidenced internally by the bruising underneath the scalp and also the fractured skull. She was of the view that the injury to the head had subsequently caused bleeding to the brain which was fatal in nature. She formed the opinion that the fracture of the skull was more consistent with a person who had been hit on the head by a blunt and hard object rather than a person who had fallen to the ground. She further stated that the injury on the head of a person after a fall usually would be seen at the back or at the side of the head. [22] The prosecution argued that the evidence of the appellant's father had linked the murder of the deceased to the appellant. The appellant was last seen with the deceased on that night at around 11.00 pm when he returned to the family house at Tudan Desaras. As the appellant had refused to send the deceased to the hospital and the deceased was left on her own inside the Proton car in a semi-conscious state, PW13 then accompanied by his wife and daughter had to send the deceased to the hospital. 10 [23] PW12 (Nurul Safiqah Binti Roslan) is the cousin of the deceased. She testified in Court that the deceased had told her that she had been beaten by the appellant and that the appellant was having an affair with another woman. The deceased had also told her that she intended to block the appellant from viewing her Facebook. [24] The prosecution submitted that the conduct of the appellant clearly showed that he had intention to kill the deceased. The evidence of PW13 who testified that the appellant was very angry, was in a bad mood before he left the house that night and his complaint of his handphone being blocked by the deceased are relevant to show his intention to kill the deceased. [25] PW13's evidence was corroborated by the evidence of the Investigating Officer, PW3 where according to PW3 the appellant had told him that he was angry with the deceased because the deceased had blocked his handphone number. The appellant sent a WhatsApp message to the deceased asking the deceased to meet up with him. The appellant then went out by using his father's car. 11 Findings of trial Judge at the end of prosecution's case [26] At the end of prosecution’s case, the learned Judge concluded that the prosecution had proved a prima facie case against the appellant and called the appellant to enter his defence. Defence case [27] In defence, the appellant elected to testify on oath. [28] The appellant gave evidence that he had a fight with the deceased when the deceased had discovered that he had checked into a hotel with a Thai woman. On the day of the incident, he testified that he had sent a WhatsApp message to the deceased to request for a meeting with her. When they met at a place at Permyjaya, the deceased suddenly became angry and knocked on the driver side window using her handphone. The appellant did not open the window but drove slowly ahead while the deceased chased after him. Suddenly the deceased jumped onto the front bonnet of the car. As the appellant continued driving and upon seeing a road bump in front, he pressed his brake which caused the deceased to fall off the car. The appellant then came out from the car and saw the deceased lying on the 12 road in a state of semi-consciousness. The deceased's nose was bleeding and there was foam coming out from her mouth. [29] The appellant saw the deceased fell backward and her head hit the road first. He then carried the deceased and seated her on the front passenger seat of the car and drove back home. When they arrived, the appellant carried the deceased out of the car and laid her on the sofa outside the house. Later, his father came and inquired what had happened to the deceased and his reply was that the deceased had fallen off from the car. [30] Norilah Binti Ramli, (“DW2”) is the appellant's younger sister who sent the deceased to Miri Hospital together with her father. She testified that she had little knowledge of what had transpired on that night. She further stated that it was her father who had inquired the accused as to what had happened and the only thing that she knew was that the deceased was injured and needed medical attention. [31] The appellant's elder sister, Norzaharah Binti Ramli (“DW3”) testified that she was not in Miri when the incident happened. She further testified that she knew the deceased as the deceased had stayed with her in Kuching. 13 She stated that the deceased had told her that the deceased was always beaten by the deceased's brother. She also testified that the problems in the relationship between the appellant and the deceased began when the appellant had another relationship with a Thai woman. Findings of the High Court Judge at the end of trial [32] After hearing the evidence of the appellant, the learned Judge made a maximum evaluation of the evidence as a whole and then proceeded to find the appellant guilty as charged. [33] The learned Judge made the following findings: “[68] Having carefully considered the totality of evidence at the conclusion of the case, I find that the strength of each individual strand of the above evidence, when combined or twisted together, is strong enough to lead us to the irresistible inference and conclusion that it was the accused who had intentionally caused the bodily injuries, in particular, the head injuries suffered by the deceased which led to her death. [69] I found that the defence raised by the accused is a mere denial and the accused's version is not reasonable which was created for the sake of avoiding conviction. 14 [70] The head injuries which is fatal to cause the death of the deceased could not have been caused by a fall from the car if the accused claimed to have driven it slowly but the fracture of the middle frontal part of the deceased's head and the fracture of the skull of the deceased was more consistent with the injuries sustained due to being hit on the head by a hard and blunt object such as being hit by Exh. P9. [71] There was no reason for the accused to lock up his car in order to prevent the deceased from entering it as it was him who intended to meet the deceased in the first place as he claimed to have sent the whatsapp messages to the deceased prior to the meeting. It follows that there was no reason why the deceased would have knocked on the windscreen of the driver's seat of the car to gain entry into the car. [72] The accused admitted that he was not afraid of the deceased and alleged that the deceased was angry at that material time which was why he locked up the door of the car. This defence is unacceptable because there was no reason why the deceased should be angry with the accused because the meeting was agreed to discuss and to sort things out between them. Furthermore, the discussion had not even started yet as she could not get into the locked car if the claimed made by the accused is true. [73] The accused should not have been intimidated by the deceased even if she was in the state of anger because it was proven through the previous police reports which showed that the accused was, in fact, the real attacker 15 to the extent of making a threatening remark which compromising (sic) the life of the deceased. [74] If the allegation of the accused and his sister were true that the deceased's brother had beaten the deceased, then why there was no cross-examination on this issue when the deceased's brother PW10 gave evidence in the witness box. [75] The accused had the clear intention to kill the deceased from the conduct of the accused on the said night when he was making noises and very angry because of his handphone had been blocked by the deceased. When he returned back to his house a few hours later, he was seen with the deceased who was in bad condition and left the deceased behind unattended in the said car thereby refusing her of the required medical attention. [76] There was a reason for the accused to be angry which culminates from the breakdown of his relationship with the deceased. The accused was not happy with the deceased when the latter had decided to end their relationship. [34] Ultimately, the learned trial judge found that the accused had failed to raise a reasonable doubt against the prosecution's case and on the contrary, the prosecution had proven its case beyond reasonable doubt. The learned 16 High Court judge found that the appellant is guilty of the offence charged and convicted the appellant under section 302 of the Penal Code. Appellant’s submission [35] Before us, learned counsel for the appellant submitted that the appellant had no intention to murder the deceased. The act of the appellant who brought the deceased to his family house showed that he had no intention to murder her. There was also no evidence to show that the appellant had brought the deceased back to his family house in order to dispose of her body. Counsel for the appellant argued that, if the appellant had intended to murder the deceased, the appellant would have left her to die at the place where she had sustained her injuries. Therefore, the learned counsel submitted that the charge against the appellant should have been reduced to one punishable under Section 304 (a) of the Penal Code. [36] It was further submitted that the abrasions and bruises sustained by the deceased supported the appellant’s defence that the deceased had fallen off the bonnet of the car and sustained her injuries. The evidence of Dr Patrick Tan Hoon Pang (“PW15”), the doctor who had first treated the deceased should have been taken into consideration because during cross- 17 examination, he had stated that when he examined the deceased for injuries, he had found none. Therefore, counsel for the appellant submitted that the actions of the appellant did not cause the death of the deceased. [37] Counsel for the appellant argued that Dr Nurina binti Ahmad (“PW19”) was only requested to do the autopsy on the deceased on 8.6.2016. As such, the injuries sustained by the deceased could have occurred at any time between 1.36 am (when deceased was pronounced dead) on 6.6.2016 and 8.6.2016. Further, PW19 had testified that she could not remember if she had found any injuries on the deceased body before she did the post mortem. [38] Further, the appellant’s counsel contended that the search list (“P14”) showed that PW5 was the one who had found P9 on his own accord and the appellant gave no information leading to discovery of P9. There was no evidence that PW5 had administered a caution to the appellant before obtaining the alleged information leading to discovery. Prosecution's submission [39] In response, the learned DPP submitted that the deceased had died as a result of the bodily injuries suffered by the deceased, particularly the 18 head injury which is fatal in nature and can only be caused by being hit with a hard and blunt object like the iron rod which was seized by the police in this case. The prosecution submitted that the contention by the defence that the deceased had fallen off from a moving car is totally rejected by the findings of PW2. Further, there were no injuries like grazing abrasions which are typical to be found on a person who had fallen off from a moving vehicle. PW2 had testified that the injury to the head which subsequently caused bleeding of the brain were fatal in nature. The fractured skull was more consistent with a situation where a person had been hit on the head by a blunt object rather than a person who had fallen off from a car. [40] The learned DPP further submitted that, circumstantially, the conduct of the appellant in trying to hide the actual incident, refusal to bring the deceased to the hospital and absconding after the incident, showed that the appellant had intention to kill the deceased. [41] Mens rea or intention on the part of the appellant to cause death of the deceased can be inferred from the facts derived from the witnesses’ testimonies especially, the testimonies of PW2, PW19 and PW13 and the post mortem report. The prosecution submitted that most of the injuries were found on the deceased’s head and this showed that it was intended to cause 19 fatal injuries to the vital part of the body which can cause death to the deceased. Thus, the prosecution contended that the element of section 300