Court DecisionMY-COA

Q-05(LB)-352-08/2019

Pendakwa Raya v Amin bin Abdullah (Q-05(LB)-352-08/2019)

Court of Appeal of Malaysia7 Feb 2024

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In the light of this Court's above findings, this Court finds inter alia that the Accused have proven that the prosecution witness’s identification of him as the person who murdered the Deceased and caused grievous hurt to PW14 and PW15 is flawed and erroneous and that the defence has created a reasonable doubt in the Prosecution's case. Thus, this Court finds that the Prosecution has failed to prove an essential ingredient of the charges preferred against the Accused beyond all reasonable doubt. In the premises, this Court discharges and acquits the Accused, of the 3 charges preferred against him. The Grounds of Appeal [34] Before us, the learned Deputy Public Prosecutor raised seven (7) grounds of appeal.
The learned Judge had erred in law and in fact for failing to appreciate that the prosecution has succeeded in proving all the ingredients under section 302 and section 326 of the Penal Code against the respondent;
The learned Judge had erred in law and in fact when made a finding that the second identification parade was flawed and not conducted properly;
The learned Judge had erred in law and in fact when made a finding that from the evidence adduced, the court finds that it would totally discredit or destroy any reliability of the identification parade purportedly identifying the respondent as the person who killed the deceased and caused grievous bodily hurt to PW14 and PW15;
The learned Judge had erred in law and in fact when made a finding that there are inconsistencies and seeming contradictions in the testimonies of PW15 with PW12, PW13 and PW14;
The learned Judge had erred in law and in fact when made a finding that the appellant has failed to adduce evidence motive for the respondent to have wanted to kill the deceased and cause grievous bodily hurt to PW14 and PW15;
The learned Judge had erred in law and in fact when made a finding that the identification of the accused as the assailant who murdered the deceased and inflicted grievous bodily hurt to PW14 and PW15 to be erroneous and not credible and the testimony of the accused have raised doubt on his guilt; and
The learned Judge had erred in law and in fact for failing to make a finding that the prosecution had indeed proven a prima facie case in its entirety. [35] Although the petition of appeal contained several grounds, however learned counsels for the respondent submitted that he will mostly confined his submission on the issue of whether the respondent was the actual person who had caused death to the deceased and injuries to PW14 and PW15. Our Decision [36] It was strenuously contended for the respondent that the learned trial judge has not misdirected himself when he held that the second Identification parade was flawed and not conducted properly for the reasons that PW13, PW14 and PW15 have already seen the respondent before the identification parade was held. [37] Now, we shall deal with the main thrust of the submission by the learned counsel for the respondent which revolved around the actual person responsible for the death of the deceased and for causing grievous bodily hurt to PW14 and PW15. Summary of evidence given by the main prosecution witnesses are as follows: PW 12 - Jati Anak Tagek
Prior to the said incident on 18/1/2015, PW12 knew the respondent because the respondent used to visit his mother and the respondent’s mother is PW12's friend whom she knew about more than a year. PW12 called the respondent mother by her nickname “Ibuk”.
PW12 had seen the respondent few times when the respondent returned home to visit her mother twice a week.
PW12 saw the respondent passing by her a in hurry and was holding the long parang covered with blood.
PW12 identified the respondent in the dock. PW 13 - Susia Anak Ranggau
PW13 knew the respondent before the incident because they lived in the same long house.
Prior to the incident there was an argument between the respondent and her late husband (deceased), but PW13 did not know what was the argument all about.
PW13 saw the respondent holding the parang and slashed the deceased's neck, PW14's head and attack PW15's hand.
PW13 saw the respondent left the scene with the parang.
PW13 identified the respondent during identification parade. PW12 can still identify the respondent even though the identification parade was conducted two (2) years after the incident.
PW13 identified the respondent in the dock. PW 14 - Emelda Anak Geluma
PW14 knew the respondent before the incident because they lived in the same long house. PW14 used to talk and sat down for coffee with the respondent.
PW14 saw the respondent holding the parang and slashed the deceased's neck and subsequently slashed PW14's head. After that the respondent slashed PW15 hand.
PW14 identified the respondent during the identification parade.
PW14 identified the respondent in the dock. PW 15 - Higo Liwan
PW15 saw the respondent holding the parang and slashed PW15 hand. After that the respondent pensive for a while before leaving the house.
PW15 identified the respondent in the dock. [38] When the above evidence is considered, perused and analysed, there can be no doubt that it was the respondent who had murdered the deceased and caused grievous hurt to PW14 and PW15 using a long parang. Their evidence remains intact, credible and corroborate each other. It is crystal clear that is a case of recognition rather than identification because the witnesses knew the respondent prior to the incident. They had no reason to lie or made up stories regarding the respondent’s involvement in this act. The Second Identification Parade [39] The learned defence counsel contended that the second identification parade of the respondent conducted on 27/3/2017 is flawed and hence has no corroborative or evidential value. Reasons given are as follows:
Exhibit P45 (Refer to items 5.1.4, 5.2.4 and the appending 5.1.4.) clearly stated that the witnesses has seen the respondent before the identification parade was held whereby all 3 of them answered as follows: Question : Samada saksi telah melihat saspek sebelum kawat cam dijalankan? Answer : Ya PW17 Inspector Luqman explained that in re-examination as follows: My answer "I disagree" means that all the witnesses had seen the suspect and knew the suspect prior to the incident. All the witnesses did not see the suspect at all prior to the Identification Parade. PW 17’s explanation was in fact contradicted by the prosecution's own witness PW18 where PW18 clearly answered as follows: Question: I refer you now to P45 (ID Parade Report dated 27.3.2017). Refer to page 18 item 5.1.4. I put it to you that this means that the witness did in this Identification parade see the suspect prior to the ID parade Answer: I agree. Question: I refer you now to P45 (ID Parade Report dated 27.3.2017). I put it to you that this means that the witness did in this ID parade see the suspect prior to the ID parade. Answer: I agree. Question: I refer you now to P45 (ID Parade Report dated 27.3.2017). I put it to you that this means that the witness did in this identification parade see the suspect prior to ID parade. Answer: I agree [40] Hence, the learned counsel contended that the identification parade conducted for PW13, PW14 and PW15 have absolutely no weight and has no value because PW13, PW14 and PW15 had seen the accused at an earlier occasion. [41] From a close scrutiny of the record and in particular, the judgment of the trial judge, we find ourselves in agreement with the learned counsel submission and learned trial judge finding when he held that the quality of second identification parade conducted on 22/3/2017 on the respondent (some 2 years after the first identification parade held on 26/1/2015 in respect of Jenat Anak Liom @ Petrus) was bad, flawed and not conducted properly. Hence, the identification parade was not admitted in evidence as it contravenes the mandated guidelines for such procedures. [42] Be that as it may, even though the learned trial judge finds that second identification parade was flawed, but to us the identity of the respondent still remains unaffected because the main eye witnesses recognized the respondent and had ample time to look at the respondent’s face before the respondent left the house. Their evidences are credible and corroborate each other. Recognition may be more reliable than identification because the witnesses knew the respondent prior to the incident. The positively dock identification does not lose its probative value merely because of the absence of successful attempt in a prior identification parade. [43] In Ong Poh Cheng v. PP [1998] 4 CLJ 1, the Court of Appeal speaking through Shaik Daud Ismail JCA (as he then was) held as follows: “Generally speaking, an identification at an identification parade, held usually a short time after the incident, would tend to strengthen the prosecution's case but it does not follow that the lack of it would be fatal, or would destroy a court or dock identification. It must necessarily depend on the facts and circumstances of each particular case. Unlike in the case of Arumugam s/o Muthusamy v. PP [1998] 3 CLJ 597; [1998] 3 MLJ 73 where the court relied solely on the dock identification, the present case there are other cogent evidence to put the appellant at the scene of the robbery. The court's identification was merely to confirm this. On the facts and circumstances of this case, the court or dock identification of the appellant was rightly accepted. Mistaken Identity? [44] The critical issue here is whether or not Jenat Anak Liom was the person who had killed the deceased and injured the others. [45] This issue has been well explained by PW18 in his witness statement (see Notes of Proceedings pages 164-171 Volume 2(1) Enclosure 51) which are reproduced herein: “Pada 19/1/2015 jam 1700hrs, saya telah dimaklumkan oleh lnsp Luqman 5367 yang mana hasil maklumat daripada detektif menyatakan bahawa saspek 5368 bernama 'Petrus' adalah lelaki bernama Jenat Anak Liom, KPT: 810527- 5369 13-6065. Saya arahkan lnsp Luqman agar mengesan saspek di samping mencari saksi yang dapat mengesahkan bahawa saspek bernama 'Petrus' adalah lelaki bernama Jenat Anak Liom, KPT:810527-13-6065. Pada 23/1/2015, saya menerima panggilan daripada IPD Manjung, Perak 5445 yang menyatakan bahawa seorang lelaki yang bernama Jenat Anak Liom 5446 telah buat satu laporan polis menafikan dia terlibat dalam kes ini dan tidak 5447 berada di Sarawak ketika kejadian. Lelaki tersebut juga menyatakan bahawa beliau sudah setahun tidak pulang ke Sarawak. Beliau bekerja di Syarikat Boustead Naval Ship Yard Sdn Bhd Lumut, Perak. Laporan polis yang dibuat oleh lelaki tersebut adalah Setiawan rpt 1043/15. Pada 26/1/2015, saya arahkan Kpl 143901 Merco Ak Majing untuk hantar 5466 surat permohonan ke Jabatan Pendaftaran Negara Cawangan Bintulu 5467 untuk mendapatkan 'family tree' dan pengesahan kad pengenalan Jenat 5468 Anak Liom. Pada 26/1/2015, saya terima 'family tree' Jabatan Pendaftaran Negara 5471 Cawangan Bintulu saspek Jenat Anak Liom daripada Kpl/D Merco. 5472 daripada 'family tree' yang dibekalkan oleh jabatan Pendaftaran Negara Cawangan Bintulu, Jenat Anak Liom mempunyai 8 orang adik beradik termasuk Amin bin Abdullah @ Petrus Anak Liom. Hasil siasatan ke atas tangkapan saspek Jenat Anak Liom mendapati saspek Jenat Anak Liom tidak terlibat dalam kes ini berdasarkan keterangan saksi-saksi yang mengesahkan saspek Jenat Ak Liom berada di Perak ketika kejadian dan laporan kawad cam terhadap saspek Jenat Ak Liom adalah negatif. Setelah siasatan dilakukan, saspek sebenar dalam kes ini merupakan abang kepada Jenat Ak Liom iaitu Petrus Anak Liom atau dalam nama islamnya Amin Bin Abdullah nombor kad pengenalan 751027-13- 5739 di mana saya telah mendapat pengesahan tersebut daripada Jabatan Agama Islam Sarawak bertarikh 3.2.2015 dimana tarikh pengislaman Petrus Anak Liom adalah 12 November 2004 dan tempat pengislamannya adalah di Jabatan Agama Islam Sarawak (Sri Aman). No daftar pengislamannya adalah 03-2004-0037. [46] On the overall testimony given by PW18 and the abundance evidence confirming the testimonies of PW12, PW13, PW14 and PW15 as demonstrated by the prosecution, we unanimously ruled out the involvement of one Jenat Anak Liom in this crime. Discrepancies of Prosecution Witnesses Testimony. [47] The prosecution admitted that there are certain discrepancies in the testimony of the prosecution witnesses which we will not elaborate and discuss in detail. Suffice for us to conclude that the discrepancies in the testimonies of PW12, PW13 and PW14, and PW15 were not a material one that strike at the very root of the charge. Hence, their evidence remains intact. Thus, we accepted their evidence as they are credible and reliable. Consequently, we find that the finding made by learned trial judge on the credibility issue of witnesses to be perverse. In this regard, we are reminded of the dicta in the case of Dato’ Mokhtar Hashim & Anor v. PP [1983] 2 CLJ 10; [1983] CLJ (Rep) 101 [1983] 2 MLJ 232, where the court held: “(7) the credibility of a witness is primarily a matter for the trial judge. The functions of an Appellate Court, when dealing with a question of fact in which questions of credibility are involved are limited in their character and scope and in an appeal from a decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, an appellate court must in order to reverse not merely entertain doubts whether the decision below is right but be convinced that it is wrong.” [48] In Public Prosecutor v. Datuk Haji Harun bin Haji Idris (No.2) [1977] 1 MLJ 16 at p.19 the court held as follows: “[ ] In this case different witnesses have testified to different parts of what had happened or what had been said and also there are, in the evidence of the witnesses for the prosecution, some discrepancies, as would be expected of witnesses giving their recollections of a series of events that took place in 1971-1973. In my opinion discrepancies there will always be, because in the circumstances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened. It may be open to criticism, or it might be better if they took down a notebook and wrote down every single thing that happened and every single thing that was said. But they did not know that they are going to be witnesses at this trial. I shall be almost inclined to think that if there are no discrepancies, it might be suggested that they have concocted their accounts of what had happened or what had been said because their versions are too consistent. The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other. It is, therefore, necessary to scrutinize each evidence very carefully as this involves the question of weight to be given to certain evidence in particular circumstances." [49] Reference may also be made to the observation of Wan Yahya J (as His Lordship then was) held in Pie bin Chin v. Public Prosecutor [1985] 1 MLJ 234: Discrepancies are no doubt present in this case, as they do ostensibly appear in most cases in evidence of witnesses for the prosecution as well as the defence. The transcripts of most evidence, when thoroughly tooth combed by any able lawyer, never failed to yield some form of inconsistencies, discrepancies or contradictions but these do not necessarily render the witness' entire evidence incredible. It is only when a witness's evidence on material and obvious matters in the case is so irreconcilable, ambivalent or negational that his whole evidence is to be disregarded. Forgetfulness and failure to recall exactly certain events, which did not seem to be important to the witness, do not necessarily shake his credibility or render other parts of his story unworthy of belief. Various persons are endowed with varying powers of cognition, attentiveness and perception, so that it is not uncommon for two witnesses to a common event to describe it in slightly differing versions. Whether Earlier Findings Can Be Revisited? [50] With greatest respect, the learned trial judge erred in revisiting the evidence of identification of the respondent as the person who caused the death of the deceased and injuring PW14 and PW15 after he had accepted during the prima facie case stage upon which he called for the defence founded on the credibility of the prosecution witnesses. [51] In Duis Akim v. PP [2013] 9 CLJ 692, the Federal Court speaking through Richard Malanjum, CJSS (as he then 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 the 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.” [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 innocent or guilty for the offence as charged." [53] In PP v. Ebrahim Merzaie Hj. Ebrahim Deh Mokhtar [2017]1 CLJ 575; [2017] 3 MLJ 827, Ahmadi Asnawi, JCA (as he then was) held that: [36] Since the previous panel of the Court of Appeal had ordered the respondent to enter his defence, the learned trial judge should hence direct his mind on whether the evidence posited by the respondent has created a reasonable doubt to warrant his acquittal - see Duis Akim & Ors v. PP (supra). In PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457; [2005] 6 MLJ 393, the Federal Court put it succinctly: [25] In the instant appeal, since all the appellants were called upon by the Court of Appeal to enter on their defence, it must necessarily mean that the Court of Appeal was satisfied that the prosecution had proved all the ingredients of the charge, including the element of common intention, before concluding that a prima facie case had been made out by the prosecution. There was therefore no necessity for us to revisit the issues on whether a prima facie case had been made out. What we need to consider was whether the evidence from the defence had cast a reasonable doubt on the prosecution's case. [37] The learned trial judge has clearly misdirected himself when he took a different approach altogether as reiterated in the earlier paragraphs - see also PP v. Sulaiman Saidin [2010] 1 CLJ 184; [2010] 3 MLJ 383. [54] In PP v. Prabu a/l Nadaraja [2020] 4 CLJ 871; [2019] MLJU 1125; [2019] MLRAU 324 the Court of Appeal speaking through Abdul Rahman Sebli, JCA (as he then was) delivering the judgment of the court held as follows: [15] In the light of this court's finding that a prima facie case had been established against the respondent, the duty of the learned Magistrate at the conclusion of the trial was only to determine whether the respondent's explanation had rebutted or explained away the complainant's evidence that he touched her breast at the place and time specified in the charge. [16] In so deciding, the learned Magistrate was not supposed to revisit, let alone to reaffirm his earlier finding that the complainant was not a credible witness. The following observations by the Federal Court in Duis Akim & Ors v. PP [2013] 9 CLJ 692 are relevant:- [38] We note that when assessing the defence, the learned trial judge surprisingly revisited his earlier findings upon which he called for the 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. [17] The difference in the facts of the case from the facts of the present case is of no significance as the principle laid down is applicable to the situation obtained in the present appeal, albeit in a different way. As we mentioned, the reason why the learned Magistrate acquitted the respondent at the close of the prosecution's case was because he found the complainant to be an unreliable witness. [18] But the fact is, this finding had been found to be wrong by this court. Therefore, it was not open to the learned Magistrate to again, for the second time, question the credibility of the complainant when deciding whether the case against the respondent had been proved beyond reasonable doubt. Whether Defence Has Raised A Reasonable Doubt [55] In essence, the respondent denied committing the crimes. He merely denied going to the house on the date of the incident as he was working at that particular time. However, the learned trial judge finds that the respondent did not succeed on the balance of probabilities in showing in proving the defence of alibi, which we agree. [56] In Abdullah Jacomah v. PP [2002] 8 CLJ 1; [2002] 6 MLJ 324 the court held: “The defence advanced cannot therefore be dismissed outright. It must still be considered. This is because the prosecution carries the burden of proof right till the end of the case. A defence raised, even though not put to the appropriate prosecution witnesses, may still be capable of raising a reasonable doubt by virtue of its strength. It is the responsibility of the prosecution to negate any doubt that has been raised by the defence. The prosecution may do this in the course of its case if the doubt had been raised at that stage, or, if raised at the defence stage by splitting its case by calling evidence in rebuttal. However, the circumstances in which the prosecution may call evidence in rebuttal are limited. One instance when it may do so is to challenge a defence that has been mounted for the first time in the course of the defence case without it having been suggested in the course of its case. [57] Having evaluated and considered the totality of the facts and evidence before us, we find that the evidence of the respondent was nothing more than an afterthought to extricate himself from the strong case that had been made out against him by the prosecution and also a bare denial of his involvement in the commission of the offence. Thus, we see no valid justification or basis for the learned trial judge to say that the respondent had raised reasonable doubt in the prosecution's case. Conclusion [58] In the premises, we unanimously find that there was overwhelming evidence of identification of the respondent, the learned trial judge erred in finding that a reasonable doubt had been raised. We allow the appeal, quashed the acquittal order and convict the respondent of murder under section 302 and the two charges under section 326 of the Penal Code. [59] We impose the following sentence after considering his remand period before the respondent was set free after acquittal by the High Court. [60] For the 1st charge under section 302 of the Penal Code, we impose a term of 32 years imprisonment with effect from today and whipping of 12 strokes of the rotan. [61] For the 2nd charge under section 326 of the Penal Code, we impose a term of ten (10) years imprisonment with effect from today. [62] For the 3rd charge under section 326 of the Penal Code, we impose a term of ten (10) years imprisonment with effect from today. [63] All imprisonment term to run concurrently. Date: 4 April 2024 - sgd - Azmi bin Ariffin Judge Court of Appeal Malaysia Counsel For the Appellant : 1. Simon Siah Sy Jen
Moh Ung Kieng 013-8111555 [Simon Siah, Chua and Chow Adv.] For the Respondents : Mohd Amril Johari [Deputy Public Prosecutor]

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Refers toOffensive Weapons ActExternal
“ia eFILING portal 11 or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or any scheduled weapon as specified under the Corrosive and Explosive Substances and Offensive Weapons Act 1958, or by means of fire or any heated substance, or by means of any poison or any corrosive subst”
Refers toPENAL CODELegislation
“GHAZALI, JCA DATO’ AZMI BIN ARIFFIN, JCA JUDGMENT Introduction [1] The respondent was tried in the High Court at Bintulu, Sarawak with three (3) counts, one for an offence under section 302 of the Penal Code and two counts for an offence under section 326 of the same Code. [2] Particulars of the three charges were as f”
Cites[2019] MLJU 1125External
“e took a different approach altogether as reiterated in the earlier paragraphs - see also PP v. Sulaiman Saidin [2010] 1 CLJ 184; [2010] 3 MLJ 383. [54] In PP v. Prabu a/l Nadaraja [2020] 4 CLJ 871; [2019] MLJU 1125; [2019] MLRAU 324 the Court of Appeal speaking through Abdul Rahman Sebli, JCA (as he then was) deliveri”
Cites[2019] MLRAU 324External
“approach altogether as reiterated in the earlier paragraphs - see also PP v. Sulaiman Saidin [2010] 1 CLJ 184; [2010] 3 MLJ 383. [54] In PP v. Prabu a/l Nadaraja [2020] 4 CLJ 871; [2019] MLJU 1125; [2019] MLRAU 324 the Court of Appeal speaking through Abdul Rahman Sebli, JCA (as he then was) delivering the judgment of”
Follows[1969] MLRA 382External
“by the trial court who had the advantage of seeing and hearing the witnesses, unless there are substantial and compelling reasons for disagreeing with the finding. [28] In Herchun Singh & Ors v. PP [1969] MLRA 382, Ong Hock Thye CJ (as he then was) said as follows: "An appellate Court should be slow in disturbing such”

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Content

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: Q-05(LB)-352-08/2019 BETWEEN PUBLIC PROSECUTOR - APPELLANT AND AMIN BIN ABDULLAH - RESPONDENT [In The Matter of High Court of Sabah and Sarawak at Bintulu Criminal Trial No: BTU-45B-2/7-2017 Between Public Prosecutor - Appellant And Amin bin Abdullah - Respondent]

Coram: Ravinthran N Paramaguru, Jca Che Mohd Ruzima Bin Ghazali, Jca Dato’ Azmi Bin Ariffin, Jca

Judgment

Introduction

The respondent was tried in the High Court at Bintulu, Sarawak with three (3) counts, one for an offence under section 302 of the Penal Code and two counts for an offence under section 326 of the same Code.

Particulars of the three charges were as follows: First Charge “That you, Amin Bin Abdullah (NRIC: 751027-13-5739) on 18 January 2015, at about 5.30 pm, at a squatter house near Chinese cemetery, Batu 2, in the district of Bintulu, in the State of Sarawak, did commit murder by causing the death of Supi Balan (NRIC: 770430-13-5185), and you thereby committed an offence punishable under section 302 of the Penal Code.” Second Charge “That you, Amin Bin Abdullah (NRIC: 751027-13-5739) on 18 January 2015, at about 5.30 pm, at a squatter house at a Chinese graveyard, Batu 2, in the district of Bintulu, in the State of Sarawak, voluntarily caused 3 grievous hurt on one Higo Liwan (NRIC:760103-13- 6065), by means of a weapon of offence which is likely to cause death to wit a long parang and you thereby committed an offence punishable under section 326 of the Penal Code." Third Charge "That you, Amin Bin Abdullah (NRIC: 751027-13-5739) on 18 January 2015, at about 5.30 pm, at a squatter house at a Chinese graveyard, Batu 2, in the district of Bintulu, in the State of Sarawak, voluntarily caused grievous hurt on one Emelda Anak Geluma (NRIC:930303-13-7006), by means of a weapon of offence which is likely to cause death to wit a long parang and you thereby committed an offence punishable under section 326 of the Penal Code."

The respondents pleaded not guilty and claimed trial to all the charges.

In support of its case, the prosecution called fifteen (15) witnesses

At the close of the prosecution case, the learned Judicial Commissioner ordered the respondent to enter his defence.

The respondent elected to give evidence on oath and called his wife (DW2) as his witness.

At the end of the trial, the learned Judicial Commissioner ordered the acquittal and discharged of the respondent of all the three charges after having successfully raised a reasonable doubt in the prosecution case.

Dissatisfied by the decision of the learned Judicial Commissioner, on 5/8/2019, the appellant appealed to the Court of Appeal against the said acquittal.

The Prosecution’s Case

We shall now lay out the background facts leading to the charges.

On the said fateful night, the deceased, Supi Anak Balan was sitting with his grandchild at the living area of the house. Suddenly, a male person identified as the respondent entered the deceased’s house through the front door, in a rushed manner, holding a long parang and moving towards the deceased before slashing the deceased’s neck with the said parang until the deceased fell down to the floor.

After that, the respondent moved towards another family member of the deceased namely Emelda Anak Geluma (PW14) who was also at the said living area before slashing her head with the same parang until she fell down.

Then, he moved toward the kitchen area and faced another family member of the deceased, namely Higo Anak Liwan (PW15) and tried to attack him with the same parang but PW15 managed to avoid. However, the respondent had injured his left wrist due to the attack using the said parang and he also fell down. Subsequently, the respondent was seen leaving the house while still holding the parang.

After the accused left the house, the deceased’s wife, Susia Anak Ranggau (PW13) came out from hiding in a locked room as she had to make sure that her grandchildren are safe from being harmed by the accused after she saw the accused attack her husband, the deceased in front of her eyes. After PW13 had observed the condition of her family members including the deceased who is already breathless due to the said attack, she immediately went outside of her house and screamed for help from her neighbour.

One of her neighbours, Rahman bin Ibrahim (PW4) immediately came to her house and observed the scene before proceeding to call the police for further action. After the said attack, another neighbour, Jati Anak Tagek (PW12) saw the respondent walking in rushed manner and crossing in front of her house while holding a parang before he left the said place in a car.

The autopsy of the deceased was carried out two days after the incident by the pathologist, Dr Norliza (PW6) in the presence of the Investigating officer, Asp Nurazam bin Md Ghazali (PW18).

During the post mortem examination conducted by PW6 at the Mortuary, Bintulu Hospital, Sarawak on 21/1/2015 at 1.25 pm on the deceased, PW6 observed a gaping slash wound at the right side of the neck of the deceased extending to the nape, from right ear 5cm, from midline 4cm; chin 6cm, from left ear 8cm, measuring 28 x 13cm. It exposed cut neck muscle, 4th cervical bone (G4), right common carotid artery, right internal jugular vein, right vagus nerve, spinal cord and trachea. PW6 also found that, as the result of slash wound (injury no. 1) to the right side of the neck, the right sternocleidomastoid (neck muscles), 6 the fourth cervical bone (neck bone, C4), the right common carotid artery, right internal jugular vein and right vagus nerve were cut. The upper part of oesophagus just below hyoid bone was cut and also the trachea. The superior horn of the hyoid bone was also cut.

PW6 further said that the external examination revealed that the deceased suffered a slash wound to the neck. This wound was consistent with a wound that could have been caused by sharp and heavy object/weapon such as a cleaver, parang, axe, sword or any similar object. As the result of the injury, the structures of the right side of the neck including the major blood vessels of the neck and the hyoid bone were cut resulting in the death of the deceased. PW6 also confirmed that the deceased did not suffer any disease that could cause or contributed to the death of the deceased and deceased did not have any defensive wounds.

PW6, in her opinion stated that the manner how the neck injury had caused the Accused’s death is when the blood vessels at the neck were cut, leading to excessive bleeding that resulted in not enough blood circulating throughout the body. This eventually will cause organ failure and ultimately the death of the deceased. There are few exhibits and samples were taken from the deceased for the purpose of further analysis.

In respect of the injury suffered by Emelda Anak Geluma (PW14), it was confirmed by Dr. Nurul Hasanah (PW9) that there was deep laceration wound over the scalp at right temporal region with active bleed approximately 15cm length. Compression and suturing done to secure the bleeding site. She was then sent for CT Brain X-Ray and it was found that intracranial haemorrhage (subdural, extradural and intraparenchymal 7 bleed) with significant mass effect, cerebral edema and midline shift and right temporo parietal-occipital bone fractures with internally displace fracture portal fragment. PW9 also confirmed that the said injury can be caused by sharp object such as knife and considered the said injury as grievous hurt injury as it involved fracture of bone. This kind of injury also can endanger her life because there is active bleeding after the slash and if the bleeding did not stop. It can cause hypovolemic shock and can cause death to her.

In respect of the injury suffered by Higo Anak Liwan (PW15), it was confirmed by Dr. Phang (PW8) that there was slash wound over the left forearm exposing his muscle and tendon. Operative findings are left ulnar nerve, ulnar artery and flexor tendon cut. X-Ray showed fracture left ulnar bone. As a result of the injury, he suffered permanent impairment which are limited range of motion of left wrist and finger and numbness of left ring and little finger due to left ulnar nerve injury. Permanent impairment means handicapped as he had suffered stiffness of his left wrist and unable to straighten his fingers and also unable to feel, touch and pain sensation compare to his right hand. PW8 also confirmed that the said injury can be caused by sharp object such as knife and considered the said injury as grievous hurt injury as it involved permanent loss of his body part. This kind of injury also can endanger his life since there was massive blood loss leading to the drop of his blood pressure causing him to be resuscitated with fluid replacement and emergency surgery.

In an earlier investigation conducted by PW18, it was learned that the respondent who killed the deceased and injured the others was identified as Jenat Anak Liom. As there is not much information on his current location, the police had called a media conference to spread the 8 photograph of Jenat Anak Liom to the public at large across the country in order to locate him and it was also published in the New Sarawak Tribune newspaper dated 23/1/2015 (P57). Finally, Jenat Liom's location had been traced after a police report, Sitiawan Report 1043/15 (P52) lodged by Jenat Anak Liom himself to deny his involvement of the said murder. This information has brought to his arrest and he was brought from Perak to Bintulu by the police to assist the police investigation.

Subsequently an identification parade had been carried out by lnsp Peterson Ray where PW13 and PW14 were called to identify him but the result is in the negative. Then, Jenat Anak Liom was released after it was found that there was no evidence to implicate him for the said murder.

The police investigation also revealed that Jenat Anak Liom is actually not Petrus, who is the real person who was involved in the said murder. Petrus is another sibling of Jenat Anak Liom and it was confirmed by a few documents relating to Petrus’s family tree that was issued by National Registration Department (P55 and P56). It was also learned that Petrus Anak Liom had converted to Islam using the name of Amin bin Abdullah and this was confirmed by a document issued by Jabatan Agama Islam Sarawak (P61).

Hence, the focus of the investigation of PW18 was to locate Petrus Anak Liom @ Amin bin Abdullah/respondent as the person involved in the murder. Then, PW18 was transferred to IPK Negeri Sembilan before the further investigation was handed over to Inspector Suhana (PW20).

The location of the respondent had finally been traced in Belaga by a raiding team led by Inspector Amin (PW7) who had arrested the 9 respondent as stated in Belaga Police Report 241/17 (P22) after about two (2) years of intense searching. A second identification parade was conducted by Inspector Luqman (PW17) on 22/3/2017 after the first identification parade by Inspector Luqman (PW17) on 26/1/2015 where Susia Anak Ranggau (PW13), Emelda Anak Geluma (PW14) and Higo Anak Liwan (PW15) were called to identify the assailant and all of them positively identified the respondent as the person who had caused the death of the deceased and for inflicting grievous hurt to PW14 and PW15 by using a parang. The second identification parade report (exhibit P45) was prepared by PW17.

The Defence’s Case

The only defence of the respondent is that of an alibi which is evidenced by the Notice of Alibi (Enclosure 18) dated 12th March 2018 which we now reproduce: We wish to bring to your attention that our client during the alleged incident, on the 18th January 2015 and that our client wishes to put forward his defence of alibi that on the alleged date and time, i.e. 18th January 2015 he was together with his wife Siti Khadijah Bt Derham at Kem KTS Kastima Tubau area. Particulars of our client's witnesses:

Siti Khadijah Bt Derham [WN.Kp.No. 870630-52-6058] Address: No.6B, Kampung Tengah Tambak, 94950 Pusar, Sarawak

H/P: 0138432082

The Relevant Provisions of Law

Section 300 of the Penal Code reads as follows: “Except in the cases hereinafter excepted culpable homicide is murder-

If the act by which the death is caused is done with the intention of causing death;

(ii) If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;

III

(iii) If it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

(iv) If the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid."

Section 326 of the Penal Code reads as follows: Voluntarily causing grievous hurt by dangerous weapons or means

326

Whoever, except in the case provided by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or any scheduled weapon as specified under the Corrosive and Explosive Substances and Offensive Weapons Act 1958, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine or to whipping. The Law on Appellate Intervention [27] The law on the appellate intervention is quite settled. An appellate court should be slow in disturbing the findings of facts arrived by the trial court who had the advantage of seeing and hearing the witnesses, unless there are substantial and compelling reasons for disagreeing with the finding. [28] In Herchun Singh & Ors v. PP [1969] MLRA 382, Ong Hock Thye CJ (as he then was) said as follows: "An appellate Court should be slow in disturbing such finding of fact arrived at by the Judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding.” [29] In Yahaya bin Mohamad v. Chin Tuan Nam [1975] 1 LNS 195; [1975] 1 MLRA 322, the Privy Council held:

As in this case the learned trial judge had based his finding on the evidence of the plaintiff and his witness, his finding should not have been disturbed;

This was not one of those rare cases where an Appellate Court, lacking the advantage of seeing and hearing the witnesses, was justified in coming to a different conclusion from the trial judge on the question of credibility. There was no reason to think that the trial judge had not taken proper advantage of his having seen and heard the witnesses. [30] In Ye Wei Gen v. Public Prosecutor [1999] 4 SLR 101, Yong Pung How CJ (as he then was) said: “It is trite law that an appellate court will be slow to overturn the trial judge's finding of fact unless it can be shown that his decision was plainly wrong or against the weight of the evidence before him... These cases thus stand for the principle that findings of fact by the trial judge are prima facie correct unless there are very good grounds for disturbing them. [31] In Dato' Seri Anwar bin Ibrahim v. Public Prosecutor & Another Appeal [2004] 3 CLJ 737 the Federal Court held as follows: “Clearly, an appellate court does not and should not put a brake and not goinq any further the moment it sees that the trial judge says that is his finding of facts. It should go further and examine the evidence and the circumstances. under which that finding is made to see whether, to borrow the words of HT Ong (CJ Malaya) in Herchun Singh's case (supra) "there are substantial and compelling reasons for disagreeing with the finding". Otherwise, no judgment would ever be reversed on question of fact and the provision of s. 87 CJA 1964 that an appeal may lie not only on a question of law but also on a question of fact or on a question of mixed fact and law would be meaningless." [32] In PP v. Mohd Radzi bin Abu Bakar [2005] 2 MLRA 590, the Federal Court held as follows: “Now, it settled law that it is no part of the function of an appellate Court in a criminal case-or indeed any case-to make its awn findings of fact. That is a function exclusively reserved by the law to the trial Court. The reason is obvious an appellate Court is necessarily fettered because it lacks the audio-visual advantage enjoyed by the trial Court." Findings of The Learned Trial Judge [33] The learned trial judge had analysed the evidence at length and concluded inter alia as follows: “As stated earlier, the First Identification Parade was held on 26/1/2015 and the result of the First Identification Parade was that PW13 and PW14 cannot identify the Jenat Anak Liom @ Petrus as the person who killed the Deceased and cause grievous bodily hurt to PW 14 and PW15. The Second Identification Parade was held on 27/3/2017, some 2 years after the First Identification Parade and conducted by PW17 and attended by PW13, PW14 and PW15 who identified the Accused as the person who killed the Deceased and cause grievous bodily hurt to PW14 and PW15. This Court finds that the Second Identification Parade was flawed and not conducted properly for the following reasons:

(i) Exhibit P45 is the Second Identification Parade Report (Refer to items 5.1.4, 5.2.4 and the appending 5.1.4. therein) which clearly stated that the witnesses have seen the Accused before the Second Identification Parade was held and this is stated as follows in Exhibit P4 as follows: “Samada saksi telah melihat saspek sebelum kawat cam dijalankan:

Ya"

(ii) Although PW17, Inspector Luqman, sought to explain that the above question and answer statement was whether the witnesses knew the Accused and not whether the witnesses have seen the Accused before the Second Identification Parade commenced. This Court is in agreement with the Defence's contention that this purported explanation is an afterthought. The literal translation of "melihat' to English is none other than "seen".

III

(iii) This same issue was again brought to light and explained further by PW18, the initial Investigating Officer for this murder case prior to his transfer. On cross-examination regarding Exhibit P54 - the First Identification Parade Report (items 6.1.4 and the appending 6.2.4.), PW18 answered in the positive that the said question and answer related to whether the witness had or had not seen the suspect/accused prior to the identity parade. This is what he said: "Q: Refer you to Exhibit P54 (ID Parade Report dated 26.1.2015). Refer you to page 3 item 6.1.4. (Counsel reads out). Do you agree that this means that the witness did not in this ID parade see the suspect prior to the ID parade? A: I agree. Q: Refer you to Exhibit P54 (ID Parade Report dated 26.1.2015). Refer you to page 4 item 6.2.4. (Counsel reads out). Do you agree that this means that the witness did not in this ID parade see the suspect prior to the ID parade? A: I agree. Q: I refer you now to P45 (ID Parade Report dated 27.3.2017). Refer you to page 18 item 5.1.4. (Counsel reads out). I put it to you that this means that the witness did in this ID parade see the suspect prior to the ID parade. A: I agree. Q: I refer you now to P45 (ID Parade Report dated 27.3.2017). Refer you to page 18 item 5.2.4. (Counsel reads out). I put it to you that this means that the witness did in this ID parade see the suspect prior to the ID parade. A: I agree. Q: I refer you now to P45 (ID Parade Report dated 27.3.2017). Refer you to 2nd page 18 item 5.1.4. (Counsel reads out). I put it to you that this means that the witness did in this ID parade see the suspect prior to the ID parade. A: I agree." [Refer pages 197 & 198 of NOP]; and

(iv) That there was no proper description of the clothing worn by the Accused during the parade, except that PW17 testified that civilian clothing was worn by the Accused. However, no explanation was made as to where or how these were obtained from. In any event, given that the Accused was already seen by the witnesses prior to the Identification Parade and given the manner of escorting the Accused as described by PW17, these would clearly show who the suspect was for that particular identity parade. Given the above, and the evidence adduced, this Court finds that it would totally discredit or destroy any reliability of the identification parade purportedly identifying the Accused as the person who killed the Deceased and caused grievous bodily hurt to PW14 and PW15. In the light of the above, this Court holds that the Accused was never properly and conclusively identified as the culprit responsible for the death of the Deceased and for causing grievous bodily hurt to PW14 and PW15. Whether the testimonies of PW12, PW13, PW14 and PW15 are credible. The testimonies of the following material and eye-witnesses namely PW12-Jati Ak Tugek, PW13-Susia Ak Ranggau and of PW14- Emelda Geluma have to be re-evaluated together with the testimony of PW15-Higo Liwan.

PW12 - Jati Ak Tugek

PW12 testified that at 6.30pm on that day in question, she was standing at her window looking outside with a clear view and clear sight when she had purportedly identified the Accused (refer to her witness statement, "WS-PW12"). However, upon cross-examination, she adjusted the time of the identification to 6.15 pm. It is noted that in fact, PW12 admitted that at the time, it was already dark, and she was in fact using a "kerosenelight" as her generator was then not working.

PW13 - Susia Ak Ranggau however testified that the weather was in fact raining heavily at the time of the incident, which is contrary to PW12's above assertion.

In the light of such contradiction, this Court finds that PW12's identification of the Accused as the person who killed the Deceased and caused grievous bodily hurt to PW14 and PW15, to be suspicious and not credible as PW12 cannot identify the "parang" used or described the parang, and then suddenly was able to identify, at a distance, that the culprit is the Accused. Further at 6.30 p.m., it would already have been twilight and the natural lighting conditions would have been poor at best. This clearly shows that the veracity of the purported identification by PW12 is, at the most, suspicious, and at worst, an outright mis-identification of the Accused as the culprit.

(ii) PW13 - Susia Ak Ranggau and PW14 - Emelda Geluma

PW13 is the wife of the Deceased, and PW14, is her daughter. Both had again purportedly identified the Accused as the culprit vide the Second Identification Parade.

However, it must be noted that the purported identification of the Accused by PW13 and PW14 were not only momentary, but under conditions which would be unreliable. The prevailing lighting conditions are poor, natural light at 6.30p.m. would be poor, and the speed of events would have made any such identification, very unreliable.

And most importantly, when Exhibit D1, a photograph of one "Jenat Ak Liom" was shown to PW13 and PW14, and both PW13 and PW14 had positively identified the person shown in Exhibit 01 as the culprit. In fact, it is noted that both PW13 and PW14 even went to the extent of saying that the person in Exhibit D1 was in fact the same person sitting in the dock in court, meaning the Accused. Thus, it is clear that PW13 and PW14 have erroneously identified the Accused as the person in Exhibit D1 as the person who killed the Deceased and caused grievous bodily hurt to PW14 and PW15.

From the evidence adduced by the Prosecution, it showed that before the incident, PW13 and PW14 knew the Accused well as the Accused used to stay in the same longhouse situated in Sebauh when both PW13 and PW14 previously lived in before they moved out to Bintulu. Besides that, they also confirmed that they previously had seen the Accused in the squatters' area near their house as the mother of the Accused also lived there. This fact also confirmed by PW12 who had seen the Accused few times when the Accused returned home to visit her mother. She also said that the Accused's mother is her friend whom she used to call "lbuk" as she lived at the same area as her house and used to visit her twice a week.

It is also pertinent to note that PW14 alleged that she had coffee with the Accused many years back.

If indeed that is the case, one would expect PW14 to file a First Information Report (FIR)/police report, to put on record that the culprit was none other than the Accused and it would be not necessary to conduct any Identification Parade. One would also expect PW12, PW13 and PW14 to immediately after the incident to inform the police that it was the Accused who was the person who killed the Deceased and caused grievous bodily hurt to PW14 and PW15 but neither PW12, PW13 or PW14 did that.

The above showed that the purported identification of the Accused by PW13 and PW14 is suspect, unreliable and suspicious.

III

(iii) PW15 - Higo Liwan

From a perusal of PW15's witness statement (WS PW15), PW15 stated that the "pengcahayaan" (i.e. lighting) in the house at that time was bright/"terang". However, this contradicted the fact that at the time of the incident, the natural lighting was poor, and the police even had to set-up extra lighting to light up the crime scene during the subsequent investigation of the incident.

And PW15's First Information Report (FlR)/police report (Exhibit D2) stated as follows: “Tiba-tiba seorang lelaki yang tidak dikenali oleh saya terus menetak lengan tangan sebelah kiri saya dengan".

It is noted that PW15's clear statement is that he can identify the culprit, but in his own police report (Exhibit D2), he clearly stated to the contrary. Even though PW15 sought to explain that the reason why the content of his police report that is different from his testimony in Court is due to the reason that he had to frame his police report in line with his claims to SOCSO, CIDB and NIOSH because after the incident, he cannot work as usual and therefore he needed financial aid from the said agencies in order to support his family at that time. That is why he stated in his police report that the said incident was happened after he came back from work even though the actual fact is that he is on leave on the said day. He also said that he had to frame his police report in that way as he had been pushed by his employer which showed that he is under pressure when framing the said report.

This Court however finds that PW1S's poor explanation that he wanted to claim from SOCSO, CIDB and NIOSH, showed that PW15 was not only an outright fraud but also not an untrustworthy or credible witness. Further there Is no evidence whatsoever adduced, to substantiate that any such claims were ever made to SOCSO, CIDB and NIOSH.

(iv) Analysis of the testimony of PW15 with the testimonies of PW 12, PW13 and PW 14

This Court finds that there are inconsistencies and seeming contradictions in the testimonies of PW15 with PW12, PW13 and PW14, a further look into the purported events enumerated by PW12, PW13, PW14 and PW15 is required.

The First Identification Parade resulted in a failure to identify the culprit, even though the witnesses had identified the person seen in Exhibit D1 as the culprit.

And if indeed, as was alleged by PW14 (i.e. Higo's wife) that PW15 and the Accused had a fight, there is no reason for PW15 to have made a statement that an unknown man had killed the Deceased. If indeed PW15 had actually fought with the Accused, he should be in a position to recognize him.

Since PW13, PW14 and PW15 are one family, whereas PW12 is a close relative of their family (i.e. a daughter in law) and since the evidence shows that the charges against the Accused stands based on the identification by these four witnesses, PW12 , PW13, PW14 and PW15, all of whom have been shown to be related to each other and to the Deceased, they would have common interest to see that the Accused is convicted and would tailor their identifications of the Accused accordingly.

This Court finds that their identifications of the Accused as the assailant of the Deceased, PW14 and PW15 to be contradictory, inconsistent, not credible and erroneous. Motive and conduct of the accused The prosecution has failed to adduce evidence motive whatsoever for the Accused herein to have wanted to kill the Deceased and caused grievous bodily hurt to PW14 and PW15. There was also no evidence adduced that there was any grudge between the Deceased, PW14 and PW15 and the Accused. Further even though the Accused knew that the police was looking for him as the police raided his house in Saratok, 1 day before going to Bakun to arrest him, the Accused did not run away from Bakun. The defence of alibi The Prosecution contended that the Accused's defence of Alibi is merely to deny that he was present inside the Deceased's house and caused death to the Deceased by slashing using a long parang and also injured 2 others victims. All the evidence put forward by Accused at the defence stage are afterthought evidence which were never put or suggested to any prosecution's witnesses during prosecution's stage. The Prosecution further contended that the Accused and DWI were trying to tally their evidence in court, they have given a contradictory evidence in material particulars of the alleged important facts relied in the Accused's defence. The Accused allegedly said that he was working at the Bakun Camp at that particular time. None of the other worker or even the manager of the Bakun Camp been called to support the Accused's alibi. The Accused also not called his daughter or his mother in law to support his evidence to show that his wife was with him and not at the deceased's house at that particular time. This Court finds that the Accused person did not succeed on the balance of probabilities in showing in proving the defence of Alibi. Credibility of the witnesses This Court having the benefit of observing the demeanour of the Accused when giving evidence and finds that the Accused is a reliable witness and that his evidence is unshaken. The Accused testified in a straightforward manner and this Court finds that his testimonies were credible and capable of belief. This Court gets the clear impression that the Accused came across as a truthful witness. As a witness it is clear that the Accused have no inclination to embellish evidence, a common characteristic among dishonest witnesses. This Court prefers the evidence of the Accused over that of the prosecution's witnesses, in particular PW12, PW13, PW14 and PW15 for reasons which were given earlier. The testimony of the Accused should be accepted as truth and the benefit of the doubt should be given to him. Legal burden on the accused at the end of the defence’s case In the present case, this Court finds that having heard the defences of the Accused and having re-evaluated the prosecution evidences especially on the identification of the Accused as the assailant who murdered the Deceased and caused grievous bodily hurt to PW14 and PW15, this Court finds that the identification of the Accused as the assailant who murdered the Deceased and inflicted grievous bodily to PW14 and PW15 to be erroneous and not credibility and the testimony of the Accused have raised doubts on his guilt.

Order

para

In the light of this Court's above findings, this Court finds inter alia that the Accused have proven that the prosecution witness’s identification of him as the person who murdered the Deceased and caused grievous hurt to PW14 and PW15 is flawed and erroneous and that the defence has created a reasonable doubt in the Prosecution's case. Thus, this Court finds that the Prosecution has failed to prove an essential ingredient of the charges preferred against the Accused beyond all reasonable doubt. In the premises, this Court discharges and acquits the Accused, of the 3 charges preferred against him. The Grounds of Appeal [34] Before us, the learned Deputy Public Prosecutor raised seven (7) grounds of appeal.

The learned Judge had erred in law and in fact for failing to appreciate that the prosecution has succeeded in proving all the ingredients under section 302 and section 326 of the Penal Code against the respondent;

The learned Judge had erred in law and in fact when made a finding that the second identification parade was flawed and not conducted properly;

The learned Judge had erred in law and in fact when made a finding that from the evidence adduced, the court finds that it would totally discredit or destroy any reliability of the identification parade purportedly identifying the respondent as the person who killed the deceased and caused grievous bodily hurt to PW14 and PW15;

The learned Judge had erred in law and in fact when made a finding that there are inconsistencies and seeming contradictions in the testimonies of PW15 with PW12, PW13 and PW14;

The learned Judge had erred in law and in fact when made a finding that the appellant has failed to adduce evidence motive for the respondent to have wanted to kill the deceased and cause grievous bodily hurt to PW14 and PW15;

The learned Judge had erred in law and in fact when made a finding that the identification of the accused as the assailant who murdered the deceased and inflicted grievous bodily hurt to PW14 and PW15 to be erroneous and not credible and the testimony of the accused have raised doubt on his guilt; and

The learned Judge had erred in law and in fact for failing to make a finding that the prosecution had indeed proven a prima facie case in its entirety. [35] Although the petition of appeal contained several grounds, however learned counsels for the respondent submitted that he will mostly confined his submission on the issue of whether the respondent was the actual person who had caused death to the deceased and injuries to PW14 and PW15. Our Decision [36] It was strenuously contended for the respondent that the learned trial judge has not misdirected himself when he held that the second Identification parade was flawed and not conducted properly for the reasons that PW13, PW14 and PW15 have already seen the respondent before the identification parade was held. [37] Now, we shall deal with the main thrust of the submission by the learned counsel for the respondent which revolved around the actual person responsible for the death of the deceased and for causing grievous bodily hurt to PW14 and PW15. Summary of evidence given by the main prosecution witnesses are as follows: PW 12 - Jati Anak Tagek

Prior to the said incident on 18/1/2015, PW12 knew the respondent because the respondent used to visit his mother and the respondent’s mother is PW12's friend whom she knew about more than a year. PW12 called the respondent mother by her nickname “Ibuk”.

(ii) PW12 had seen the respondent few times when the respondent returned home to visit her mother twice a week.

III

(iii) PW12 saw the respondent passing by her a in hurry and was holding the long parang covered with blood.

(iv) PW12 identified the respondent in the dock. PW 13 - Susia Anak Ranggau

PW13 knew the respondent before the incident because they lived in the same long house.

(ii) Prior to the incident there was an argument between the respondent and her late husband (deceased), but PW13 did not know what was the argument all about.

III

(iii) PW13 saw the respondent holding the parang and slashed the deceased's neck, PW14's head and attack PW15's hand.

(iv) PW13 saw the respondent left the scene with the parang.

PW13 identified the respondent during identification parade. PW12 can still identify the respondent even though the identification parade was conducted two (2) years after the incident.

(iv) PW13 identified the respondent in the dock. PW 14 - Emelda Anak Geluma

PW14 knew the respondent before the incident because they lived in the same long house. PW14 used to talk and sat down for coffee with the respondent.

(ii) PW14 saw the respondent holding the parang and slashed the deceased's neck and subsequently slashed PW14's head. After that the respondent slashed PW15 hand.

III

(iii) PW14 identified the respondent during the identification parade.

(iv) PW14 identified the respondent in the dock. PW 15 - Higo Liwan

PW15 saw the respondent holding the parang and slashed PW15 hand. After that the respondent pensive for a while before leaving the house.

(ii) PW15 identified the respondent in the dock. [38] When the above evidence is considered, perused and analysed, there can be no doubt that it was the respondent who had murdered the deceased and caused grievous hurt to PW14 and PW15 using a long parang. Their evidence remains intact, credible and corroborate each other. It is crystal clear that is a case of recognition rather than identification because the witnesses knew the respondent prior to the incident. They had no reason to lie or made up stories regarding the respondent’s involvement in this act. The Second Identification Parade [39] The learned defence counsel contended that the second identification parade of the respondent conducted on 27/3/2017 is flawed and hence has no corroborative or evidential value. Reasons given are as follows:

Exhibit P45 (Refer to items 5.1.4, 5.2.4 and the appending 5.1.4.) clearly stated that the witnesses has seen the respondent before the identification parade was held whereby all 3 of them answered as follows: Question : Samada saksi telah melihat saspek sebelum kawat cam dijalankan? Answer : Ya PW17 Inspector Luqman explained that in re-examination as follows: My answer "I disagree" means that all the witnesses had seen the suspect and knew the suspect prior to the incident. All the witnesses did not see the suspect at all prior to the Identification Parade. PW 17’s explanation was in fact contradicted by the prosecution's own witness PW18 where PW18 clearly answered as follows: Question: I refer you now to P45 (ID Parade Report dated 27.3.2017). Refer to page 18 item 5.1.4. I put it to you that this means that the witness did in this Identification parade see the suspect prior to the ID parade Answer: I agree. Question: I refer you now to P45 (ID Parade Report dated 27.3.2017). I put it to you that this means that the witness did in this ID parade see the suspect prior to the ID parade. Answer: I agree. Question: I refer you now to P45 (ID Parade Report dated 27.3.2017). I put it to you that this means that the witness did in this identification parade see the suspect prior to ID parade. Answer: I agree [40] Hence, the learned counsel contended that the identification parade conducted for PW13, PW14 and PW15 have absolutely no weight and has no value because PW13, PW14 and PW15 had seen the accused at an earlier occasion. [41] From a close scrutiny of the record and in particular, the judgment of the trial judge, we find ourselves in agreement with the learned counsel submission and learned trial judge finding when he held that the quality of second identification parade conducted on 22/3/2017 on the respondent (some 2 years after the first identification parade held on 26/1/2015 in respect of Jenat Anak Liom @ Petrus) was bad, flawed and not conducted properly. Hence, the identification parade was not admitted in evidence as it contravenes the mandated guidelines for such procedures. [42] Be that as it may, even though the learned trial judge finds that second identification parade was flawed, but to us the identity of the respondent still remains unaffected because the main eye witnesses recognized the respondent and had ample time to look at the respondent’s face before the respondent left the house. Their evidences are credible and corroborate each other. Recognition may be more reliable than identification because the witnesses knew the respondent prior to the incident. The positively dock identification does not lose its probative value merely because of the absence of successful attempt in a prior identification parade. [43] In Ong Poh Cheng v. PP [1998] 4 CLJ 1, the Court of Appeal speaking through Shaik Daud Ismail JCA (as he then was) held as follows: “Generally speaking, an identification at an identification parade, held usually a short time after the incident, would tend to strengthen the prosecution's case but it does not follow that the lack of it would be fatal, or would destroy a court or dock identification. It must necessarily depend on the facts and circumstances of each particular case. Unlike in the case of Arumugam s/o Muthusamy v. PP [1998] 3 CLJ 597; [1998] 3 MLJ 73 where the court relied solely on the dock identification, the present case there are other cogent evidence to put the appellant at the scene of the robbery. The court's identification was merely to confirm this. On the facts and circumstances of this case, the court or dock identification of the appellant was rightly accepted. Mistaken Identity? [44] The critical issue here is whether or not Jenat Anak Liom was the person who had killed the deceased and injured the others. [45] This issue has been well explained by PW18 in his witness statement (see Notes of Proceedings pages 164-171 Volume 2(1) Enclosure 51) which are reproduced herein: “Pada 19/1/2015 jam 1700hrs, saya telah dimaklumkan oleh lnsp Luqman 5367 yang mana hasil maklumat daripada detektif menyatakan bahawa saspek 5368 bernama 'Petrus' adalah lelaki bernama Jenat Anak Liom, KPT: 810527- 5369 13-6065. Saya arahkan lnsp Luqman agar mengesan saspek di samping mencari saksi yang dapat mengesahkan bahawa saspek bernama 'Petrus' adalah lelaki bernama Jenat Anak Liom, KPT:810527-13-6065. Pada 23/1/2015, saya menerima panggilan daripada IPD Manjung, Perak 5445 yang menyatakan bahawa seorang lelaki yang bernama Jenat Anak Liom 5446 telah buat satu laporan polis menafikan dia terlibat dalam kes ini dan tidak 5447 berada di Sarawak ketika kejadian. Lelaki tersebut juga menyatakan bahawa beliau sudah setahun tidak pulang ke Sarawak. Beliau bekerja di Syarikat Boustead Naval Ship Yard Sdn Bhd Lumut, Perak. Laporan polis yang dibuat oleh lelaki tersebut adalah Setiawan rpt 1043/15. Pada 26/1/2015, saya arahkan Kpl 143901 Merco Ak Majing untuk hantar 5466 surat permohonan ke Jabatan Pendaftaran Negara Cawangan Bintulu 5467 untuk mendapatkan 'family tree' dan pengesahan kad pengenalan Jenat 5468 Anak Liom. Pada 26/1/2015, saya terima 'family tree' Jabatan Pendaftaran Negara 5471 Cawangan Bintulu saspek Jenat Anak Liom daripada Kpl/D Merco. 5472 daripada 'family tree' yang dibekalkan oleh jabatan Pendaftaran Negara Cawangan Bintulu, Jenat Anak Liom mempunyai 8 orang adik beradik termasuk Amin bin Abdullah @ Petrus Anak Liom. Hasil siasatan ke atas tangkapan saspek Jenat Anak Liom mendapati saspek Jenat Anak Liom tidak terlibat dalam kes ini berdasarkan keterangan saksi-saksi yang mengesahkan saspek Jenat Ak Liom berada di Perak ketika kejadian dan laporan kawad cam terhadap saspek Jenat Ak Liom adalah negatif. Setelah siasatan dilakukan, saspek sebenar dalam kes ini merupakan abang kepada Jenat Ak Liom iaitu Petrus Anak Liom atau dalam nama islamnya Amin Bin Abdullah nombor kad pengenalan 751027-13- 5739 di mana saya telah mendapat pengesahan tersebut daripada Jabatan Agama Islam Sarawak bertarikh 3.2.2015 dimana tarikh pengislaman Petrus Anak Liom adalah 12 November 2004 dan tempat pengislamannya adalah di Jabatan Agama Islam Sarawak (Sri Aman). No daftar pengislamannya adalah 03-2004-0037. [46] On the overall testimony given by PW18 and the abundance evidence confirming the testimonies of PW12, PW13, PW14 and PW15 as demonstrated by the prosecution, we unanimously ruled out the involvement of one Jenat Anak Liom in this crime. Discrepancies of Prosecution Witnesses Testimony. [47] The prosecution admitted that there are certain discrepancies in the testimony of the prosecution witnesses which we will not elaborate and discuss in detail. Suffice for us to conclude that the discrepancies in the testimonies of PW12, PW13 and PW14, and PW15 were not a material one that strike at the very root of the charge. Hence, their evidence remains intact. Thus, we accepted their evidence as they are credible and reliable. Consequently, we find that the finding made by learned trial judge on the credibility issue of witnesses to be perverse. In this regard, we are reminded of the dicta in the case of Dato’ Mokhtar Hashim & Anor v. PP [1983] 2 CLJ 10; [1983] CLJ (Rep) 101 [1983] 2 MLJ 232, where the court held: “(7) the credibility of a witness is primarily a matter for the trial judge. The functions of an Appellate Court, when dealing with a question of fact in which questions of credibility are involved are limited in their character and scope and in an appeal from a decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, an appellate court must in order to reverse not merely entertain doubts whether the decision below is right but be convinced that it is wrong.” [48] In Public Prosecutor v. Datuk Haji Harun bin Haji Idris (No.2) [1977] 1 MLJ 16 at p.19 the court held as follows: “[ ] In this case different witnesses have testified to different parts of what had happened or what had been said and also there are, in the evidence of the witnesses for the prosecution, some discrepancies, as would be expected of witnesses giving their recollections of a series of events that took place in 1971-1973. In my opinion discrepancies there will always be, because in the circumstances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened. It may be open to criticism, or it might be better if they took down a notebook and wrote down every single thing that happened and every single thing that was said. But they did not know that they are going to be witnesses at this trial. I shall be almost inclined to think that if there are no discrepancies, it might be suggested that they have concocted their accounts of what had happened or what had been said because their versions are too consistent. The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other. It is, therefore, necessary to scrutinize each evidence very carefully as this involves the question of weight to be given to certain evidence in particular circumstances." [49] Reference may also be made to the observation of Wan Yahya J (as His Lordship then was) held in Pie bin Chin v. Public Prosecutor [1985] 1 MLJ 234: Discrepancies are no doubt present in this case, as they do ostensibly appear in most cases in evidence of witnesses for the prosecution as well as the defence. The transcripts of most evidence, when thoroughly tooth combed by any able lawyer, never failed to yield some form of inconsistencies, discrepancies or contradictions but these do not necessarily render the witness' entire evidence incredible. It is only when a witness's evidence on material and obvious matters in the case is so irreconcilable, ambivalent or negational that his whole evidence is to be disregarded. Forgetfulness and failure to recall exactly certain events, which did not seem to be important to the witness, do not necessarily shake his credibility or render other parts of his story unworthy of belief. Various persons are endowed with varying powers of cognition, attentiveness and perception, so that it is not uncommon for two witnesses to a common event to describe it in slightly differing versions. Whether Earlier Findings Can Be Revisited? [50] With greatest respect, the learned trial judge erred in revisiting the evidence of identification of the respondent as the person who caused the death of the deceased and injuring PW14 and PW15 after he had accepted during the prima facie case stage upon which he called for the defence founded on the credibility of the prosecution witnesses. [51] In Duis Akim v. PP [2013] 9 CLJ 692, the Federal Court speaking through Richard Malanjum, CJSS (as he then 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 the 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.” [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 innocent or guilty for the offence as charged." [53] In PP v. Ebrahim Merzaie Hj. Ebrahim Deh Mokhtar [2017]1 CLJ 575; [2017] 3 MLJ 827, Ahmadi Asnawi, JCA (as he then was) held that: [36] Since the previous panel of the Court of Appeal had ordered the respondent to enter his defence, the learned trial judge should hence direct his mind on whether the evidence posited by the respondent has created a reasonable doubt to warrant his acquittal - see Duis Akim & Ors v. PP (supra). In PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457; [2005] 6 MLJ 393, the Federal Court put it succinctly: [25] In the instant appeal, since all the appellants were called upon by the Court of Appeal to enter on their defence, it must necessarily mean that the Court of Appeal was satisfied that the prosecution had proved all the ingredients of the charge, including the element of common intention, before concluding that a prima facie case had been made out by the prosecution. There was therefore no necessity for us to revisit the issues on whether a prima facie case had been made out. What we need to consider was whether the evidence from the defence had cast a reasonable doubt on the prosecution's case. [37] The learned trial judge has clearly misdirected himself when he took a different approach altogether as reiterated in the earlier paragraphs - see also PP v. Sulaiman Saidin [2010] 1 CLJ 184; [2010] 3 MLJ 383. [54] In PP v. Prabu a/l Nadaraja [2020] 4 CLJ 871; [2019] MLJU 1125; [2019] MLRAU 324 the Court of Appeal speaking through Abdul Rahman Sebli, JCA (as he then was) delivering the judgment of the court held as follows: [15] In the light of this court's finding that a prima facie case had been established against the respondent, the duty of the learned Magistrate at the conclusion of the trial was only to determine whether the respondent's explanation had rebutted or explained away the complainant's evidence that he touched her breast at the place and time specified in the charge. [16] In so deciding, the learned Magistrate was not supposed to revisit, let alone to reaffirm his earlier finding that the complainant was not a credible witness. The following observations by the Federal Court in Duis Akim & Ors v. PP [2013] 9 CLJ 692 are relevant:- [38] We note that when assessing the defence, the learned trial judge surprisingly revisited his earlier findings upon which he called for the 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. [17] The difference in the facts of the case from the facts of the present case is of no significance as the principle laid down is applicable to the situation obtained in the present appeal, albeit in a different way. As we mentioned, the reason why the learned Magistrate acquitted the respondent at the close of the prosecution's case was because he found the complainant to be an unreliable witness. [18] But the fact is, this finding had been found to be wrong by this court. Therefore, it was not open to the learned Magistrate to again, for the second time, question the credibility of the complainant when deciding whether the case against the respondent had been proved beyond reasonable doubt. Whether Defence Has Raised A Reasonable Doubt [55] In essence, the respondent denied committing the crimes. He merely denied going to the house on the date of the incident as he was working at that particular time. However, the learned trial judge finds that the respondent did not succeed on the balance of probabilities in showing in proving the defence of alibi, which we agree. [56] In Abdullah Jacomah v. PP [2002] 8 CLJ 1; [2002] 6 MLJ 324 the court held: “The defence advanced cannot therefore be dismissed outright. It must still be considered. This is because the prosecution carries the burden of proof right till the end of the case. A defence raised, even though not put to the appropriate prosecution witnesses, may still be capable of raising a reasonable doubt by virtue of its strength. It is the responsibility of the prosecution to negate any doubt that has been raised by the defence. The prosecution may do this in the course of its case if the doubt had been raised at that stage, or, if raised at the defence stage by splitting its case by calling evidence in rebuttal. However, the circumstances in which the prosecution may call evidence in rebuttal are limited. One instance when it may do so is to challenge a defence that has been mounted for the first time in the course of the defence case without it having been suggested in the course of its case. [57] Having evaluated and considered the totality of the facts and evidence before us, we find that the evidence of the respondent was nothing more than an afterthought to extricate himself from the strong case that had been made out against him by the prosecution and also a bare denial of his involvement in the commission of the offence. Thus, we see no valid justification or basis for the learned trial judge to say that the respondent had raised reasonable doubt in the prosecution's case. Conclusion [58] In the premises, we unanimously find that there was overwhelming evidence of identification of the respondent, the learned trial judge erred in finding that a reasonable doubt had been raised. We allow the appeal, quashed the acquittal order and convict the respondent of murder under section 302 and the two charges under section 326 of the Penal Code. [59] We impose the following sentence after considering his remand period before the respondent was set free after acquittal by the High Court. [60] For the 1st charge under section 302 of the Penal Code, we impose a term of 32 years imprisonment with effect from today and whipping of 12 strokes of the rotan. [61] For the 2nd charge under section 326 of the Penal Code, we impose a term of ten (10) years imprisonment with effect from today. [62] For the 3rd charge under section 326 of the Penal Code, we impose a term of ten (10) years imprisonment with effect from today. [63] All imprisonment term to run concurrently. Date: 4 April 2024 - sgd - Azmi bin Ariffin Judge Court of Appeal Malaysia Counsel For the Appellant : 1. Simon Siah Sy Jen

Moh Ung Kieng 013-8111555 [Simon Siah, Chua and Chow Adv.] For the Respondents : Mohd Amril Johari [Deputy Public Prosecutor]

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Malaysian judgment

Case metadata

Court: Court of Appeal of Malaysia
Decision date: 7 Feb 2024
Case number: Q-05(LB)-352-08/2019
Coram: YA Datuk Ravinthran a/l Paramaguru; YA Dato' Che Mohd Ruzima Bin Ghazali; YA Dato' Azmi Bin Ariffin
Practice area: Section 300 of the Penal Code - Excepted culpable homicide is murder - Section 326 of the Penal Code - Voluntarily causing grievous hurt by dangerous weapons or means - Issue of whether the respondent was the actual person who had caused death to the deceased and injuries to PW14 and PW15 - The trial judge has not misdirected himself when he held that the second Identification parade was flawed and not conducted properly for the reasons that PW13, PW14 and PW15 have already seen the respondent before the identification parade was held – Issue of who’s the actual person responsible for the death of the deceased and for causing grievous bodily hurt to PW14 and PW15 - The second identification parade is flawed and hence has no corroborative or evidential value - The identification parade conducted for PW13, PW14 and PW15 have absolutely no weight and has no value - Had seen the accused at an earlier occasion - The quality of second identification parade was bad, flawed and not conducted properly - The identification parade was not admitted in evidence as it contravenes the mandated guidelines for such procedures - The identity of the respondent still remains unaffected because the main eye witnesses recognized the respondent and had ample time to look at the respondent’s face before the respondent left the house - Their evidences are credible and corroborate each other - Recognition may be more reliable than identification because the witnesses knew the respondent prior to the incident - The positively dock identification does not lose its probative value merely because of the absence of successful attempt in a prior identification parade - Finding made by learned trial judge on the credibility issue of witnesses to be perverse - The learned trial judge erred in revisiting the evidence of identification of the respondent as the person who caused the death of the deceased and injuring PW14 and PW15 after he had accepted during the prima facie case stage upon which he called for the defence founded on the credibility of the prosecution witnesses - Overwhelming evidence of identification of the respondent - The learned trial judge erred in finding that a reasonable doubt had been raised
Version: Alasan Penghakiman 1
Published: 4 Apr 2024
Source ID: c4392dc2-f617-434f-b8a0-56ceac4d4bec

Catchwords

Section 300 of the Penal Code - Excepted culpable homicide is murder - Section 326 of the Penal Code - Voluntarily causing grievous hurt by dangerous weapons or means - Issue of whether the respondent was the actual person who had caused death to the deceased and injuries to PW14 and PW15 - The trial judge has not misdirected himself when he held that the second Identification parade was flawed and not conducted properly for the reasons that PW13, PW14 and PW15 have already seen the respondent before the identification parade was held – Issue of who’s the actual person responsible for the death of the deceased and for causing grievous bodily hurt to PW14 and PW15 - The second identification parade is flawed and hence has no corroborative or evidential value - The identification parade conducted for PW13, PW14 and PW15 have absolutely no weight and has no value - Had seen the accused at an earlier occasion - The quality of second identification parade was bad, flawed and not conducted properly - The identification parade was not admitted in evidence as it contravenes the mandated guidelines for such procedures - The identity of the respondent still remains unaffected because the main eye witnesses recognized the respondent and had ample time to look at the respondent’s face before the respondent left the house - Their evidences are credible and corroborate each other - Recognition may be more reliable than identification because the witnesses knew the respondent prior to the incident - The positively dock identification does not lose its probative value merely because of the absence of successful attempt in a prior identification parade - Finding made by learned trial judge on the credibility issue of witnesses to be perverse - The learned trial judge erred in revisiting the evidence of identification of the respondent as the person who caused the death of the deceased and injuring PW14 and PW15 after he had accepted during the prima facie case stage upon which he called for the defence founded on the credibility of the prosecution witnesses - Overwhelming evidence of identification of the respondent - The learned trial judge erred in finding that a reasonable doubt had been raised

Parties

Pendakwa Raya - appellant - ejudgment_parties
[Pendakwa Raya] - appellant - ejudgment_parties
Amin bin Abdullah - respondent - ejudgment_parties

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