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Page 1 of 19 IN THE COURT OF APPEAL AT PUTRAJAYA CRIMINAL APPEAL NO: J-05(SH)-323-08/2017 … APPELLANT … RESPONDENT (Heard together with) CRIMINAL APPEAL NO: J-05(SH)-325-08/2017 … APPELLANT … RESPONDENT IN THE MATTER OF THE HIGH COURT OF MALAYA AT JOHOR BAHRU CRIMINAL TRIAL N0. 45B-08-08/2015 CORAM MOHTARUDIN BIN BAKI, JCA KAMARDIN BIN HASHIM, JCA STEPHEN CHUNG HIAN GUAN, JCA Page 2 of 19 JUDGMENT OF THE COURT The Appeals [1] The accused was charged as follows: “Bahawa kamu pada 19 Februari 2015, di antara jam lebih kurang 12.00 tengah hari hingga 3.05 petang, di Asrama Pekerja No. F3, Kilang AB Technology (M) Sdn Bhd, Kawasan Perindustrian Lukut, di dalam Daerah Kota Tinggi di dalam Negeri Johor Darul Ta’zim, telah melakukan kesalahan membunuh dengan menyebabkan kematian ke atas Do Quang Tuyen (No. Passport: B4721157), dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan.” [2] After a trial, the accused was found guilty and was convicted for the offence of murder under s.302 of the Penal Code. The learned High Court Judge however made a finding that the accused was below the age of 18 years at the time of the offence and therefore made an order pursuant to section 97 of the Child Act 2001 that the accused be detained in a prison during the pleasure of the Sultan of Johor Darul Takzim. [3] There are two appeals heard together. In Criminal Appeal No. J-05(SH)-323-08/2017, the accused appealed against the conviction under s.302 of the Penal Code. In Criminal Appeal No. J-05(SH)-325- 08/2017, the prosecution appealed against the order of sentence made under s.97 of the Child Act by the trial judge. The grounds of the appeals are set out in the respective petition of appeal. Page 3 of 19 The background facts of the case [4] On 19.2.2015, it was the Chinese New Year in Malaysia which was a public holiday. It is also celebrated as the Tet Lunar New Year in Vietnam. On that day the Vietnamese workers of AB Technology staying in the factory hostel were celebrating the festival with food and drinks in room F3 which ended at about 12.00 noon. Those present were fellow workers including the accused and deceased and after the lunch they went to the next room except for SP3 and SP4 who remained to clean and tidy the room [5] SP3 testified that the deceased then entered room F3 and the accused was seen in an opposite room. He said he saw the deceased walking out from room F3 and entered the room where the accused was. He did not know what happened in that room but then saw the deceased came out of that room and the accused went behind and stabbed the chest of the deceased several times with a knife who turned around to face the accused who then stabbed the deceased’s stomach. After the accused had stabbed the deceased in the stomach, the accused ran away holding the knife. SP3 said that he was about six to seven feet from where the accused had stabbed the deceased. SP3 was shown a knife (exhibit P4A(1)(i) and he said he had seen it before but not in the kitchen. He said the knife was not kept in room F3 nor was it on the table during the celebration. He said it looked like the one used to stab the deceased but was not sure because he could not see it clearly as it was then held by the accused. [6] SP4 testified that he saw the deceased with bloodstains, groaning in pain. He said the deceased whispered in Vietnamese which translated to ‘Nham stab me’. SP5, another colleague, helped to carry the deceased to the road to get a taxi to bring the deceased Page 4 of 19 to the Kota Tinggi District Hospital. SP5 said that the deceased was in severe pain but died while being treated at the hospital. [7] SP6, a pathologist, performed an autopsy on the deceased. He prepared a post mortem report which was tendered as exhibit P10. SP6 testified that there were three stab wounds and one superficial incision wound to the chest, one stab wound to the abdomen and one superficial incision wound to the elbow of the deceased. He said the stab wounds were fatal in nature because they severed the internal structures (liver, left lung, mesentery) which caused extensive bleeding and generalised hypotensive. The accumulation of blood in the left chest cavity caused collapsed left lung which was directly fatal or indirectly fastened the fatality. He said the stab wounds to the chest severed the left diaphragm which could cause a failure in the respiration system. SP6 testified that the cause of death was due to stab wounds to the chest and abdomen of the deceased which were fatal in nature. Appeal against conviction [8] The accused set out five grounds of appeal in his petition of appeal. However, in his written and oral submissions, counsel only raised two issues in this appeal. The first issue was that the learned High Court Judge had erred in fact and in law when he ruled that the accused had the intention to kill the deceased because the accused had brought the knife (exhibit P4A(1) to the place of the incident. This issue was raised in ground 2 of the petition of appeal. [9] The second issue that the learned High Court Judge had erred in fact and in law when he failed to make a finding whether the Page 5 of 19 prosecution’s case came within s.300 or s.299 of the Penal Code was not raised in the petition of appeal. We will deal with these two issues in the latter part of our decision in these appeals. [10] Firstly, we shall deal with ground 4 in the petition of appeal which states that the learned High Court Judge had erred in law and in fact when he failed to consider that the delay in bringing the deceased to the hospital for treatment had caused or contributed to the death of the deceased. As stated above, counsel for the accused did not submit in his written submission or orally on this ground of appeal and we took that this ground of appeal had been abandoned. [11] In any event there were no merits on this ground because SP6 had testified, and in his post mortem report, that the stab wound to the lower left aspect of the front chest of the deceased had severed the left intercostal muscle T6, cut fracture left ribcage T7, left intercostal muscle T7, left diaphragmatic dome, liver and part of the stomach wall, that the two stab wounds to the upper left front chest wall had severed the intercostal muscle T1, cut fracture ribcage T2 and severed the upper left lung and that the deep stab wound to the lower right aspect of the abdomen which caused a protrusion part of the bowel with a few severed areas of bowel tissues and mesentery tissues. SP6 testified that these stab wounds were fatal in nature. [12] Based on the four deep stab wounds inflicted by the accused and the resulting serious injuries sustained by the deceased, which were fatal in nature as SP6 had testified, and his testimony was not seriously challenged, any delay in bringing the deceased to the hospital for treatment would not have made any difference or a Page 6 of 19 contributing factor in breaking the causation. The causal connection between the acts of the accused and the death of the deceased was direct and distinct and not due to any intervening or subsequent cause and the learned High Court Judge had not erred in finding that the acts of the accused had caused the death of the deceased: see Loh Yoon Fatt v Public Prosecutor [2014] 6 MLJ 547. [13] In respect of the first issue as submitted by counsel for the accused, this is in ground 2 of the appeal. It was submitted that the learned High Court Judge had erred in law and in fact when he found that the accused had brought the knife (exhibit P4A(1)(i) to stab the deceased with the intention to kill the deceased whereas the evidence otherwise showed that the knife was already at the scene before the incident. [14] It was submitted that the learned Judge had failed to appreciate the evidence of SP4 regarding the knife which led the learned Judge to err when he said the ‘Rambo’ knife was not used as a kitchen knife by any of the occupants of the workers’ hostel and that looking at the knife itself, it was not suitable to be used as a kitchen knife. It was submitted that the learned Judge had erred in drawing the irresistible inference that it was brought by the accused with the intention to kill the deceased. [15] Reading the record of appeal in respect of the evidence given by SP2, SP3, SP4 and SP5, in particular that of SP4 regarding the knife, they did not describe or referred to it as a kitchen knife or ‘Rambo’ knife. Based on the knife and photographs (exhibits 8A & 8B) of the knife, shown in court, it was the learned High Court Judge who had Page 7 of 19 described it as a ‘Rambo’ knife. The question is did the accused bring this knife to stab the deceased? [16] SP3 had seen the accused stabbing the deceased with a knife and saw the accused running away holding the knife. A knife was recovered from the bush near to a road in an oil palm garden which was produced in court as exhibit P4A(1)(i) (also see exhibits P15 and P16). SP4 had identified this knife as the knife that the accused was seen holding and running away from the scene after the accused had stabbed the deceased with it. At that time when he saw the accused running away from the scene holding the knife, he was about 15 feet from the accused. He testified that he had seen this knife many times before in room F4 which his colleagues in room F4 had used this knife ‘to cut fruits’ and he had seen them doing it a few months ago. [17] We had scrutinized the record of appeal and the testimony of SP4. Counsel for the accused did not cross-examine or challenge SP4 on his identification of the knife as the knife used by the accused to stab the deceased as contended by the prosecution nor that it was not the knife the accused was seen holding in his hand as he ran away from the scene after he had stabbed the deceased with it (see page 0045 Jilid 2). Therefore learned High Court Judge, who had the audio and visual advantage of watching and listening the witnesses, was not plainly wrong in accepting the evidence of SP3 and SP4, and based on the record of appeal, there was no reason for us to intervene with his findings as such. [18] Based on the testimony of SP4, which was not seriously challenged, the knife was used for cutting fruits in room F4. SP3 said Page 8 of 19 the knife was not kept in room F3. At the material time of the celebration and or incident, the knife was not in room F3 or placed on a table in room F3, for cutting fruits or other purposes. It was not openly on display or in full view of everyone who were present in room F3 during the celebration. The accused could not have just grabbed it from the table or on a spur or upon a sudden and grave provocation or in self-defence to stab the deceased. It was not put to the prosecution’s witnesses that there was a sudden and grave provocation or threat to his life that the accused was forced to grab the knife on the table in self-defence. Therefore there was no evidence and no merits in the contention by the accused that the knife was available or already there before the incident: see Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212. [19] Based on the record of appeal, and on the facts and circumstances of the case, the learned High Court Judge had not erred in drawing the irresistible inference nor did he err in making the ruling which he did that the accused had brought the knife to room F3 with the intention to stab the deceased: see Pathmanabhan a/l Nalliannen v Public Prosecutor and another appeal [2017] MLJU 257; Chew Wai Keong & Anor v Public Prosecutor [2018] 3 MLJ 549. [20] We will deal with the other grounds of appeal together including the second issue as submitted by counsel although it was not specifically raised in the petition of appeal. We were of the view that it was not prejudicial to the prosecution because the accused was charged for doing an act with the intention of causing death of the deceased under s.302 of the Penal Code. Page 9 of 19 [21] Counsel for the accused cited the case of Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ 174 and submitted that the learned High Court Judge had failed to appreciate the fine distinction between ss.299 and 300 and in doing so had erred in convicting the accused for the offence under s.302 whereas based on the facts and circumstances of the case, the most the accused should only be convicted under s.304(a) of the Penal Code. It was submitted that this required appellate intervention to set aside the conviction under s.302 of the Penal Code. [22] Speaking generally, if the act must in all probability cause death, the offence is within s.300, Penal Code, and if the act is only likely to cause death, the offence falls within s.299, Penal Code: Tham Kai Yau’ case (supra). On evidence adduced, it was not in dispute that the accused had inflicted three deep stab wounds to the chest and one deep stab wound to the abdomen of the deceased which cut the ribs and vital internal organs of the deceased which caused extensive internal bleeding which caused the death of the deceased. These were not slash wounds or cut wounds. These were deep stab wounds and SP6 had testified that they were fatal in nature. [23] The accused had also inflicted two superficial wounds to the deceased, one to the chest and one to the elbow of the deceased. The wound to the elbow was a defensive wound, meaning the deceased tried to defend himself to ward off the attacks of the accused. [24] It was not a case of the accused inflicting only one slash or cut wound on the deceased. Instead the accused had repeatedly attacked the deceased by inflicting four deep stab wounds to different parts of Page 10 of 19 the body where the vital internal organs of the deceased were located and the evidence showed that these stab wounds had cut and severely damaged these organs which caused the death of the deceased. [25] Based on the findings of facts by the learned High Court Judge that the accused had brought the knife to the scene, based on the length and the serrated sharp edge of the knife used to stab the deceased, based on the positions of the deep stab wounds inflicted to the chest and abdomen of the deceased, and based on the severe injuries sustained by the deceased which caused the death of the deceased, these acts in all probability were intended to cause and had caused the death of the deceased. These acts were intended to kill and manifested an intention by the accused to kill the deceased. SP6 said that they were fatal in nature. There was no evidence to the contrary. The evidence established that the accused had killed the deceased. These acts came within s.300 of the Penal Code. [26] Referring to the record of appeal, although counsel had cross-examined the prosecution’s witnesses on alcohol consumed during the celebration, no evidence was led how much alcohol was consumed by the accused at the material times. It was not put that the accused was intoxicated or so intoxicated that he did not know what happened or that he did not know what he did was wrong. As stated above, there was no evidence of any sudden and grave provocation or of self-defence or that it was on a spur of the moment. It pointed to it being premeditated. [27] The defence of the accused was that the deceased had uttered or used offensive words towards the accused that he was a son of a Page 11 of 19 dog and had also insulted his parents. The record showed that during cross-examination of SP4, the accused wrote some Vietnamese words on a piece of paper which was given to the Vietnamese interpreter to be shown to SP4 and both of them confirmed that they were intended to insult the accused and he said that if these words were directed at him that he would feel angry. He said he did not hear these words uttered by the deceased directed at the accused. This piece of paper was not tendered as exhibit nor was it translated into Bahasa Malaysia or English or certified as correct and little weight should be put on it. [28] The evidence showed that after the celebration in room F3, everyone including the accused and the deceased left the room except for SP3 and SP4 who stayed back to clean the room. If the words were uttered during the celebration or when they were leaving the room so that they were intended to provoke the accused so that he lost control or unable to control himself, the accused did not then attack the deceased. Instead, when SP3 and SP4 were cleaning in room F3, the deceased subsequently came back into the room and the accused was in an opposite room. SP3 then saw the accused stabbed the deceased and ran away holding the knife. On evidence, the alleged words did not immediately provoke the accused which made him lost control or which made him on a spur of the moment to grab a knife to stab the deceased. There was no evidence of any act or sudden and grave provocation by the deceased which reasonably caused the apprehension of death or of grievous hurt to the accused which entitled him to the right of private defence. The evidence showed that he brought the knife to stab the deceased. In the light of the evidence, the defence failed to raise any doubt in the prosecution’s case. Page 12 of 19 [29] On the submissions made, and on the totality of the evidence before us, we are of the view that the learned High Court Judge was not plainly wrong and had not erred in convicting the accused for the offence under s.302 of the Penal Code. We are also of the view that based on the evidence adduced that the conviction was safe and there was no reason for us to intervene or to reduce the charge and the conviction to be under s.304(a) of the Penal Code as counsel for the accused had urged us to do. Therefore the appeal against conviction is dismissed and the order of conviction is affirmed. Appeal against sentence [30] The prosecution submitted that the learned High Court Judge after having convicted the accused under s.302 of the Penal Code had erred in making the order under s.97(2) of the Child Act 2001 for the accused to be detained at the pleasure of the Ruler of the State where the offence was committed, in this case in the State of Johor. [31] The prosecution submitted that the learned Judge had erred when making the said order under s.97(2) of the Child Act in admitting and relying on a public document from a foreign country namely, a certified Vietnamese birth certificate of the accused (exhibit D33A) and the translation thereof (exhibit D33B) which did not comply with the provision of subsection 78(1)(f) of the Evidence Act which requires that it be proved by the original or by a copy certified by the lawful keeper thereof, with a certificate under the seal of a notary public or of a consular officer of Malaysia that the copy is duly certified by the officer having the lawful custody of the original and upon proof of the character of the document according to the law of the foreign country. It was submitted that in this case it was certified by a Vietnamese Page 13 of 19 official on behalf of the Ambassador Minister-Counsellor and not by a notary public or a consular officer of Malaysia as required under the law. It was submitted that these two documents could not and should not be admissible in evidence and that the learned Judge had erred. [32] The prosecution also complained that the certified copy of the birth certificate of the accused was only produced at the last minute during the defence case and that a copy of exhibits D33A and D33B were not served on the prosecution prior to their production. [33] The prosecution also complained that although it was allowed to call rebuttal evidence by calling SP14, the Human Resource Manager of AB Technology, to produce a copy of the passport of the accused (exhibit P34) and his application for employment (exhibit P35) to establish that at the material time of the offence that the accused was over the age of 18 year but the learned High Court Judge failed to direct his mind and failed to appreciate the significance of these two documents. It was submitted that the learned High Court Judge had erred in rejecting these two documents and erred in relying on D33A and D33B to make the order under s.97(2) of the Child Act. [34] It was submitted that based on exhibits P34 and P35, at all times the accused was above the age of 18 years and that the provisions of the Child Act do not apply in this case. It was submitted that the learned High Court Judge in convicting the accused under s.302 of the Penal Code had failed to impose the mandatory statutory penalty as prescribed under that section and had erred. It was submitted that the order therefore should be set aside and for an order to be substituted to impose the statutory death penalty on the accused. Page 14 of 19 [35] Based on the record of appeal, the prosecution had put the age of the accused as 20 years in the charge sheet as per the passport of the accused which states his date of birth as 1.1.1995. In his employment application the accused similarly stated his date of birth as 1.1.1995 as per in his passport. During the trial the prosecution did not produce nor tendered the passport nor called any witness to establish his age at the time when the offence was committed. It was only during the defence case, after the defence introduced exhibits D33A and D33B, that the prosecution called SP14 as a rebuttal witness to produce a copy of the passport (exhibit P34) and a copy of his employment application with the company (exhibit P35). [36] Section 74(a)(iii) of the Evidence Act states that the following documents forming the acts or records of the acts of public officers, legislative, judicial and executive, whether Federal or State or any part of the Commonwealth or of a foreign country are public documents. Under s.78(1)(f) of the same Act, public documents of any other class in a foreign country may be proved by the original or by a copy certified by the lawful keeper thereof, with a certificate under the seal of a notary public or of a consular officer of Malaysia that the copy is duly certified by the officer having the lawful custody of the original and upon proof of the character of the document according to the law of the foreign country. [37] It would appear that both the prosecution and defence had failed to comply with the requirements of s.78(1)(f) of the Evidence Act. In this case the original birth certificate was not produced but a certified copy thereof. It was certified by a Vietnamese public officer but without a certificate under the seal of a notary public or of a consular officer of Page 15 of 19 Malaysia that the copy was duly certified by the officer having the lawful authority of the original. Similarly the original passport was not produced but a certified copy therefore and without the certificate of a notary public or a consular officer of Malaysia as such. The date of birth stated in exhibit P35 was based on the date stated in P34 and hearsay. Strictly speaking these documents should not be admissible for non-compliance with s.78(1)(f) of Evidence Act. In that event, either way, there was no proof or certainty as to the age of the accused at the time when the offence was committed. In any event the learned High Court Judge, to be fair to both, had admitted these documents as exhibits D33A, D33B, P34 and P35. We are of the view that there was no prejudice as such because there were still doubts as to the actual age of the accused for the reasons we have given in our decision. [38] Section 97(1) of the Child Act states that a sentence of death shall not be pronounced or recorded against a person of an offence if it appears to the Court that at the time when the offence was committed he was a child: see Duruvendran a/l Sakajaven v Pendakwa Raya [2016] MLJU 381; Ricky Ling v Public Prosecutor [2017] MLJU 1249. [39] The question is, at the time of the offence on 19.2.2015, was the accused a child as defined in s.2 of the Child Act which defines a “child” to mean (a) a person under the age of eighteen years; and (b) in relation to criminal proceedings, means a person who has attained the age of criminal responsibility as prescribed in section 82 of the Penal Code. This definition consists of two limbs which requires a two Page 16 of 19 stage investigation when a child accused is produced and charged in court for an offence. [40] The first stage requires the court to determine whether this person has attained the age of criminal responsibility under s.82 of the Penal Code. Section 82 states nothing is an offence which is done by a child under ten years of age. If this person has not attained the age of criminal responsibility as defined, he or she should not be charged for a criminal offence. [41] If this person has attained ten years of age, the second stage requires the court to determine whether he or she is under the age of 18 years. Section 16(1) of the Child Act states that if in a charge for an offence triable under this Act- (a) it is alleged that the person who committed the offence was under or had attained any specified age; and (b) that person appears to the Court For Children to have been at the date of the commission of the alleged offence under or to have attained the specified age, as the case may be, he or she shall, for the purposes of this Act, be presumed at that date to have been under or to have attained that age, as the case may be. Under subsection (2), if there is any doubt as to the exact age, the court shall declare that person’s age for the purposes of this Act relying on a certificate of a Government medical officer to that effect. [42] A person, who is proved or presumed to be under the age of 18 years, shall only be tried for an offence in a Court For Children except offences punishable with death. Even if this person is charged with an offence punishable with death, he or she is also entitled to the special Page 17 of 19 care, protection, rehabilitation and safeguards provided for in the Child Act. [43] Therefore the two stage investigation should be carried out at the earliest in the criminal proceedings to determine whether he or she is a child as defined to ensure that this child shall be provided with the special care, protection, rehabilitation and safeguards throughout the criminal proceedings notwithstanding that this person has been charged for an offence punishable with death. [44] Clearly in this case there were doubts as to the exact age of the accused at the time when the offence was committed namely, whether at that time he was under 18 years old or otherwise. If there was any doubt, pursuant to s.16(2) of the Child Act, the prosecution should have called a Government medical officer to examine the accused to certify his age at the time the offence was committed to clear any such doubt. In this case it was not done. It is trite that in a criminal trial the burden is on the prosecution to prove its case beyond reasonable doubt and that burden does not shift to the defence. In this case there were doubts as to the exact age of the accused and any benefit of doubt must be given to the accused: see Miss Rossarin Nuekaew v Public Prosecutor [2017] 5 MLJ 1. On the facts and circumstances of the case, the learned High Court Judge was not plainly wrong in making the ruling that at the time when the offence was committed that the accused was under the age of 18 years. [45] The Child Act provides for Courts For Children to be set up and constituted under s.11 thereof. Subsection (5) states that such a Court shall have jurisdiction to try all offences except offences punishable Page 18 of 19 with death. In this case the accused was charged under s.302 of the Penal Code which is an offence punishable with death which was tried in the High Court at Johor Bahru and not in a Court For Children. Notwithstanding, s.117 provides that nothing in this Act other than sections 96 and 97 shall affect the powers of the High Court and all powers which may be exercised under this Act namely the Child Act by a Court for Children in respect of a child may in like manner be exercised by the High Court: see PP lwn KK [2007] 6 CLJ 367. [46] For the reasons we have given, the learned High Court Judge has not erred in making the order under s.97 of the Child Act for the accused to be detained at the pleasure of the Ruler of the State of Johor notwithstanding that the accused was convicted for the offence under s.302 of the Penal Code. Therefore there were no merits in the appeal against the sentence. The appeal was dismissed and the order of the High Court Judge was affirmed. Dated: 25th October 2018 signed STEPHEN CHUNG HIAN GUAN (delivering judgment of the court) Court of Appeal Judge Putrajaya Appeal J-05 (SH)-323-08/2017 For Appellant : Alfred Egin Messrs. Alfred Egin & Co For Respondent : DPP Muhammad Azmi bin Mashud Attorney General Chambers Page 19 of 19 Appeal J-05 (SH)-325-08/2017 For Appellant : DPP Muhammad Azmi bin Mashud Attorney General Chambers For Respondent : Alfred Egin Messrs. Alfred Egin & Co