Pendakwa Raya v Chou Mau (B-05(LB)-276-05/2018)

(a) SP7 and SP8 were not credible witnesses as they were drug addicts;

(b) The incident happened in the forest and it was dark; 8

(c) The Investigation Officer (SP11) confirmed that the witnesses in their statements to the police were not sure who caused the deceased’s death. [23] It is to be immediately noted that these are matters that needed to be taken into consideration by the court in deciding whether a prima facie case had been established at the close of the prosecution case and not in determining whether the case for the prosecution had been proved beyond any reasonable doubt at the conclusion of the trial. [24] The question that arose for our consideration was whether the learned trial judge adopted the correct approach in determining whether the respondents’ defence had succeeded in casting a reasonable doubt in the prosecution’s case. [25] What is clear is that the learned judge disbelieved SP7’s and SP8’s evidence and the reason why he disbelieved them was because SP7 and SP8 were drug addicts. This must also have been the reason why the learned trial judge acquitted the respondents at the close of the prosecution case. [26] With due respect to the learned judge, it was not open to him to question the credibility of SP7 and SP8 after this court had ruled, in the exercise of its appellate criminal jurisdiction, that a prima facie case had been established against the respondents. [27] By allowing the prosecution’s appeal, the panel of this court that heard the appeal must have found SP7 and SP8 to be credible witnesses, given the fact that SP7 and SP8 were the lynchpin of the prosecution’s 9 case against the respondents. The learned trial judge must therefore accept all material parts of their evidence to be true, irrespective of what his own view was on their credibility. [28] The finding by this court that a prima facie case had been established by the prosecution must be taken as if it was a finding by the trial court itself. This has to be so, for otherwise the successful appeal by the prosecution would be rendered nugatory if the trial court was free to revisit the issue of whether the prosecution had adduced sufficient credible evidence to establish a prima facie case against the respondents. [29] The trial court can of course express its own views on the decision but it must obey the decision. The doctrine of stare decisis prohibits the trial court from defying it. In any event, it was not argued before us that the decision by this court to order for the defence to be called was wrong. [30] The learned trial judge’s duty at the conclusion of the trial was merely to determine whether the respondents’ explanation had cast a real and reasonable doubt in the prosecution’s case and not to determine whether the prosecution witnesses were credible or otherwise. For this proposition, we took guidance from the decision of the Federal Court in Duis Akim & Ors v PP [2013] where it was held as follows: “[38] We note that when assessing the defence the learned trial judge surprisingly revisited his earlier findings upon which he called for his defence. Such approach is quite contrary to the principle of maximum evaluation of the evidence adduced at the close of the prosecution’s case. Indeed in his judgment the learned trial judge made it very clear that he had conducted a maximum evaluation of the evidence adduced by the prosecution before calling for the defence. 10 [39] In PP v Khong Soh [1966] 1 LNS 141; [1966] 2 MLJ 137 MacIntyre J said this at p. 139: Having held that a prima facie case had been made out against the respondent, the learned president should have given his reasons for holding why the respondent’s evidence had created a reasonable doubt in his mind. [40] Thus, in the present case the learned trial judge, having given the evidence before him the maximum evaluation before calling for the defence, should have therefore focused on whether the defence had cast a reasonable doubt in the prosecution’s case and even if it did not, whether as a whole the prosecution had proved its case beyond reasonable doubt before finding the appellants or guilty of the offence charged.” [31] We were mindful of the fact that in Duis Akim (supra) it was the trial court and not the Court of Appeal which decided to call for the defence, but in our view this makes no difference as the issue remains the same, i.e. when a prima facie case had been established, the trial court’s focus must be on the question whether the defence had cast a reasonable doubt in the prosecution’s case, and even if it did not, whether the case had been proved beyond a reasonable doubt. [32] As we mentioned, the reason why the learned trial judge rejected the testimonies of SP7 and SP8 was because they were drug addicts. What the learned judge was saying in effect was that because SP7 and SP8 were drug addicts, they were not competent to give evidence in court. Section 118 of the Evidence Act 1950 (“the Evidence Act”) is relevant and provides as follows: “All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.” 11 [33] It is unfortunate that the learned judge did not direct his mind to this provision when dealing with the testimonies of SP7 and SP8. If he had, he would have reminded himself that drug addiction per se is not a ground for rejecting their testimonies. We had no doubt that this factor weighed heavily in the learned judge’s mind when rejecting the evidence of SP7 and SP8. [34] With due respect to the learned judge, there is no law to say that a drug addict is not a competent witness. A drug addict who has taken his oath to tell the truth, the whole truth and nothing but the truth is entitled to credence like any other witness, unless proven otherwise. In any event, there is no evidence that SP7 and SP8 were high on drug at the time of the attack or at the time they gave evidence in court. [35] The law is settled that the prosecution is only required to prove its case beyond any reasonable doubt and not beyond the shadow of a doubt. On the degree of proof required, we reproduce below the oft-quoted pronouncement by Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372 at page 373: “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt.” [36] Sharma J spoke in the same vein when he said in Public Prosecutor v Saimin & Ors [1971] 1 LNS 115; [1971] 2 MLJ 16: 12 “The following definition of ‘reasonable doubt’ is often quoted: “It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.” “It has again been said that “reasonable doubt” is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If under your oaths and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you say to yourself I doubt if he is guilty, then it is a reasonable doubt. It is a doubt which settles in your judgment and finds a resting place there. Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence.” (emphasis added) [37] What the prosecution had established at the close of its case (as found by this court) was that the respondents had a common intention to murder the deceased although it was only the 2nd respondent who inflicted the fatal injury. [38] By virtue of section 180(4) of the Criminal Procedure Code (“the CPC”), the respondents must rebut or explain the case that had been made out against them, or else their convictions would be warranted. We reproduce below section 180(4) of the CPC for ease of reference: “(4) For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.” 13 [39] We had given careful consideration to the explanation given by the respondents in their defence and we were unable to find any part of their defence which could reasonably be considered as a valid defence to the charge or which could cast a real and reasonable doubt in the prosecution’s case. [40] Neither of them raised any of the defences available to them under the Penal Code, nor did they explain why it was necessary to inflict such serious injury on such vital part of the deceased’s body with such dangerous weapon when the deceased was only armed with a knuckle duster. There was complete and callous disregard for human life. [41] As for the 1st respondent, it is true that he did not inflict the fatal injury on the deceased but having regard to all the surrounding circumstances of the case, including the fact that he was armed with a parang and had actively participated in the attack which culminated in the death of the deceased, the only reasonable inference to be drawn is that he shared a common intention with the 2nd respondent to cause the deceased’s death. [42] It is trite law that common intention can be formed on the spur of the moment. In the present case, the common intention (as distinct from same intention) was formed when the 1st respondent actively participated in the criminal act of attacking the deceased while he and the 2nd respondent were armed with dangerous weapons. It was a concerted attack by the respondents on the defenceless deceased. 14 [43] Therefore, although the 1st respondent did not inflict the fatal injury on the deceased, he was equally liable for the act of the 2nd respondent by operation of section 34 of the Penal Code: Farose Tamure Mohamad Khan (supra). [44] In the face of SP7’s and SP8’s eye witness accounts which directly implicated the respondents in the death of the deceased, no reasonable doubt could have been cast by the respondents in the prosecution’s case by merely saying that they were not involved at all in the attack. As Lord Denning said in Millier v Minister of Pensions (supra), the law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. [45] It was for all the reasons aforesaid that we allowed the prosecution’s appeal and convicted the respondents of the offence charged and sentenced them to death. Signed ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 4th July 2019 For the Public Prosecutor: Tetralina Ahmed Fauzi, Deputy Public Prosecutor, of the Attorney General’s Chambers. 15 For the 1st Respondent: Muhammad Rafique bin Rashid Ali of Messrs Law Practice of Rafique. For the 2nd Respondent: Halim Ashgar Mohd Hilmi of Messrs Halim Ashgar.