Poon Wai Hong v Public Prosecutor (B-05(M)-201-04/2018)

The appellant, a young man of about 23 years old, was charged and convicted of the murder of his teenage lover, who was barely 15 years of age at the time of the commission of the offence, by the High Court of Shah Alam on 3/4/2018 and sentenced to death under section 302 of the Penal Code (PC). The charge against him reads as follows: “PERTUDUHAN Bahawa kamu pada 21/10/13 antara jam lebih kurang 3.00 petang hingga jam lebih kurang 4.00 petang di rumah bernombor 665 Jalan PJU 1/4F, Kg Cempaka Kelana Jaya dalam Daerah Petaling, dalam Negeri Selangor Darul Ehsan, telah membunuh Ng Yuk Tim, No. KPT: 981007-14-5220, dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan.”

We heard his appeal against the said conviction and sentence on the 12/9/2019 and allowed the same. In place of the conviction under section 302, we entered a conviction for culpable homicide not amounting to murder under section 304

of the PC and after hearing the mitigation from his counsel and the submission from the learned Deputy Public Prosecutor (DPP), we sentenced him to an imprisonment term of 22 years. 3 Aggrieved by the said decision, the Public Prosecutor has filed an appeal against our decision. The reasons for our decision are adumbrated below but first we would lay out a summary of the evidence relied by both the prosecution and the defence at the trial. The Prosecution Case 3. The events which lead to the discovery of the deceased’s body in a green coloured suitcase in a place called Kawasan Perindustrian Kecil at Jalan Kebun Nanas 1A/KS7 Shah Alam are not disputed. On the night of the incident at about 7.30 p.m., the deceased’s mother, Sim Yee Ling (PW4) came back from work and found that the deceased was not home yet and her calls and messages to the deceased’s handphone went unanswered. Upon reaching home at 11.00 p.m. after fetching her sister, Sim Yee Lian (PW7), from KLIA and discovering that the deceased was still not home, PW4 intensified her efforts to look for the deceased and this culminated in PW4 contacting the appellant after discovering the appellant’s message to the deceased via Facebook. The appellant replied the message sent to him by PW4 telling her that he did meet the deceased earlier that day but had sent her home. The appellant later 4 joined PW4, PW7 as well as one Kuan Chee Heng (PW5) an activist at Kelana Jaya LRT Station to search for the deceased. It was through the effort of the latter that the mystery of the deceased’s disappearance was solved for after noticing scratch marks on the appellant’s hand, PW5 managed to persuade the appellant to reveal, whilst they were alone in an Indian restaurant, the fate of the deceased. These marks were subsequently found to be teeth marks which matches that of the deceased.

According to PW5, the appellant told her that the deceased hit her head on a dumbbell whilst playing with it in his house and died. He then placed her body in a suitcase and dumped it in the said area in Shah Alam. After that confession, PW5 brought the appellant to the police station where the appellant was interrogated by the Investigating Officer, ASP Supari Bin Muhammad (PW12). The appellant allegedly confessed to PW12 that he bashed up the deceased and this confession was reduced into writing by PW12 who also lodged 3 police reports following it, that is Exhs. P43, P45 and P46. That confession was produced in court and marked as ID44. A trial within trial was ordered by the learned High Court Judge in order to 5 determine its admissibility but the prosecution had a change of heart and withdrew their application to tender the said ID as an exhibit. We pause to note, however that the learned High Court Judge at paragraph 35 of his judgment said that he held a trial within trial and rejected the confession. Following that interrogation, the appellant led the police to the discovery of the body of the deceased as well as the dumbbell in his house. The post-mortem on the deceased was conducted by Dr. Prashant Naresh Samberkar (PW3) who in his report (Exh. P13) certified that the cause of death was multiple blunt trauma to the head and listed 10 injuries on her body with the fatal ones being the first and second ones on the list, that is, the lacerated wounds on the left parietal area of the head.

The learned High Court Judge in his, with respect, rather brief judgment and after outlining the evidence of the prosecution witnesses and the elements of charge, concluded that there was a prima facie case against the appellant as follows: “G. Dapatan Mahkamah di Akhir Kes Pendakwaan [51] Mengenai elemen 1 dan 2 disahkan Ng Yuk Tim telah meninggal dunia. SP3 yang menjalankan bedah siasat 6 mengesahkan mangsa meninggal dunia akibat “multiple blunt trauma to the head”. [52] Mengenai elemen 3, dari keterangan ikut keadaan dan soal siasat menunjukkan bahawa Tertuduh yang melakukan kecederaan tersebut dengan niat yang dia tahu boleh menyebabkan kematian. (PP v Lin Lian Chen [1992] 4 CLJ 2086). Ini disokong oleh fakta bahawa dia telah memasukkan mayat mangsa ke dalam beg dan membuangkannya ke dalam longkang. Tindakan sebegini menunjukkan dia mempunyai niat jahat terhadap mangsa. [53] Atas alasan-alasan di atas Mahkamah berpandangan, pihak pendakwaan telah membuktikan satu kes prima facie terhadap Tertuduh. (s. 180 (4) KTJ). Oleh itu Mahkamah mengarahkan Tertuduh membela diri. (s. 180(1)(3) KTJ).” The Defence 6. In his sworn evidence, the appellant told the court that on the day of the incident the deceased, whom he had befriended for 3 years, came to his house to help him with a preparation for cosplay competition which he was taking part in. Whilst there they were about to have sex when a customer of the appellant came, resulting in the act being abandoned. Whilst the appellant entertained his customer, the deceased played computer games and after that customer left the appellant wanted to resume their love making but the deceased refused. This led to a quarrel 7 between them. The deceased, according to the appellant, first bit his hand and then took a stun gun (Exh. P31A) and hit the appellant with it which caused the appellant’s spectacles to fall. Whilst deprived on his clear vision, he pushed her and the deceased fell on the dumbbell. In his moment of panic after failing to revive her motionless body, the appellant put her body in the suitcase and disposed it at the said area in Shah Alam.

The learned High Court Judge, after outlining the evidence of the appellant came to this finding which, in view of its brevity, we would reproduce in full below until its conclusion: “I. Penilaian ke Atas Pembelaan Tertuduh [64] Pembelaan Tertuduh bahawa dia tertolak mangsa (simati) dan terkena dumbbell tidak selari dengan laporan bedah siasat P13 dan keterangan SP3. Menurut SP3, 10 kecederaan yang dialami oleh mangsa di muka, kepala, bibir, telinga, siku dan lutut adalah kecederaan yang dialami mangsa semasa masih hidup (ante mortem). [65] Kecederaan tersebut tidak mungkin berlaku dalam pergelutan yang begitu singkat. [66] SP15 pula mengesahkan kerana gigitan di tangan Tertuduh berpadanan gigi mangsa. Ini bererti pergelutan di antara simati dengan Tertuduh berlaku untuk suatu tempoh yang tidak begitu singkat. 8 [67] Oleh itu, Mahkamah berpandangan pembelaan Tertuduh tidak bermerit dan tidak menimbulkan sebarang keraguan yang munasabah ke atas kes pendakwaan. Pembelaannya ada suatu penafian. [68] Keterangan mengikut keadaan menjuruskan Tertuduh yang melakukan kecederaan tersebut terhadap mangsa. Tertuduh tahu ia boleh menyebabkan kematian. J. Isu-isu yang Perlu Diputuskan di Akhir Kes [69] Di akhir kes, dua isu perlu diputuskan iaitu:

69.1 samaada pembelaan dapat menimbulkan keraguan yang munasabah ke atas kes pendakwaan?

69.2 samaada pendakwaan telah membuktikan kesnya melampaui keraguan yang munasabah. K. Dapatan Mahkamah Di Akhir Kes s. 182A KTJ [70] Selepas meneliti keterangan pendakwaan dan pembelaan keseluruhannya, untuk isu nombor 1, Mahkamah berpandangan pembelaan gagal menimbulkan keraguan yang munasabah. Rujuk perkara 64-68. [71] Mengenai isu nombor 2, Mahkamah berpandangan pendakwaan telah membuktikan kesnya melampaui keraguan yang munasabah. [72] Berdasarkan alasan-alasan di atas, Mahkamah memutuskan Tertuduh bersalah dan Tertuduh disabitkan. L. Hukuman 9 [73] Selepas mendengar mitigasi dan jawapan Tertuduh, Mahkamah mengenakan hukuman mati ke atas Tertuduh seperti yang diperuntukkan oleh seksyen 302 Kanun Keseksaan. The Appeal 8. Learned counsel for the appellant raised 4 issues before us and as laid out at page 2 of his written submissions, they are: “(i) the learned trial Judge erred when his Lordship failed to direct his mind that both PW4 and PW7 were the interested witnesses;

(ii) the learned trial Judge misdirected and failed to make a proper finding that the Appellant had caused the death of the deceased (third element);

(iii) the learned trial Judge failed to consider the evidence of PW3 and failed to make an affirmative finding as to which limb of Section 300 was proven by the Prosecution; and

(iv) the learned trial Judge erred when his Lordship decided that the Appellant failed to raise a reasonable doubt at the end of Defence stage.” Interested Witnesses 9. Learned counsel for the appellant submitted that both PW4 and PW7 were not impartial witnesses as they have the intention to see the appellant punished for causing the death of their loved one. He highlighted their respective evidence as adduced in cross-examination as follows: 10 “Cross-examination of PW4 Setuju Puan Sim memang amat marah dengan OKT atas apa yang telah berlaku kepada anak kamu? Setuju. Setuju dari awal kes ini, dari masa anak kamu hilang sehingga sekarang, semua perkara dikeluarkan dalam surat khabar-surat khabar Cina apa yang sedang berlaku? There is a lot of press coverage in the Chinese papers, setuju? Setuju. [RA, Volume 2(1), pg 76] Ya la, but ex husband bekas suami kamu ada bagi press statement? Selalunya adik saya yang cerita. Nama Sim Yee Lian. Segala keluarga kamu pun amat marah dengan OKT atas apa yang telah berlaku? Setuju. [RA, Volume 2(1), pg 77] Cross-examination of PW7 Cik Sim, setuju dengan saya bahawa Cik Sim amat marah kepada OKT tentang apa yang telah berlaku? Saya setuju. [RA, Volume 2(2), pg 196]”

Learned counsel then quoted an excerpt from the decision of the Federal Court in Magendran a/l Mohan v PP [2011] 6 MLJ 1 where at paragraph 20 thereof an almost identical expression of hatred towards the appellant in the cited case was voiced out by 11 the sister of the deceased and the Federal Court held that from that testimony of hers, she was an interested witness with a grudge against the appellant and her own purpose to serve. Therefore, held the Federal Court further, her evidence must be treated with caution and requires corroboration.

On the contrary, the learned DPP in her written submission to us submitted that the evidence of PW4 and PW7, though interested witnesses, were still entitled to be believed since there was no cogent reasons advanced to show otherwise as held in Balasingham v Public Prosecutor [1959] 2 MLJ 173. This is in line with what was said by the Supreme Court of India in Raju @ Balachandran & Ors v State of Tamil Nadu AIR 2013 SC 983 which was quoted by this court in Rikky Purba v PP [2014] 3 CLJ 607 at page 626 as follows: “... A Court should examine the evidence of a related and interested witness having an interest in seeing the Accused punished and also having some enmity with the Accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required. (emphasis added).” 12 In other words, from the case authorities above, the law does not impose an outright rejection of the evidence of these witnesses but only that their evidence be treated with caution and required corroboration.

Now, when we examined the evidence of both PW4 and PW7, there was nothing particularly incriminating about their evidence because the material part of it was the search effort for the deceased and the appellant’s participation in it which was admitted by him as well as the presence of the deceased’s teeth marks on his hands which he also admitted was caused by the deceased. There was, in other words, no reason to reject their said evidence and what is more, the material part of the said evidence was corroborated by PW5, who is a totally disinterested and a very impartial witness. In addition to what we had alluded to briefly earlier, we must also mention that PW5 was, at that material time the President of this non-governmental organization called Persatuan Kepolisan Komuniti which was active in helping the police in crime prevention, enforcing security for the community and rendering assistance to the public in these areas. It was through his persuasion that the appellant led the police to the recovery of the deceased’s body. 13 Therefore the acceptance of PW4 and PW7’s evidence should not be an issue to impugn the decision of the learned High Court Judge. Non Speaking Judgment 13. With regards to this issue, learned counsel for the appellant’s chief grouse against the judgment of the learned High Court Judge was the fact that he did not make an affirmative finding that it was the appellant who caused the death of the deceased and that it was ‘far from being a speaking judgment’ for His Lordship merely held in paragraph 52 of his judgment that the circumstantial evidence and the interrogation show that it was the appellant who intentionally caused the injuries to the deceased which he knew would cause her death. This paragraph 52 had been reproduced together with paragraphs 51 and 53 earlier in our judgment. However, the learned High Court Judge did not, submitted counsel explain what was the circumstantial evidence relied upon by him to come to that finding.

As for the interrogation, it would be wrong, said learned counsel further for the learned High Court Judge to rely on ID44 (which 14 was the outcome of it, that is the confession of the appellant that was reduced in writing) because the trial within trial to determine its admissibility did not proceed. Thus that ID44 was not evidence before the court and reliance on it amounted to a serious misdirection by His Lordship. Of course it is beyond dispute that when a document tendered in court by a party is not admitted as formal evidence but merely marked for identification purpose, it is not evidence before the court. However, in fairness to the learned High Court Judge he did not exactly said that he was relying on the said ID44. What His Lordship did, in paragraphs 15, 35 – 37 of the judgment, was to mention the interrogation and said, though wrongly, that he rejected that ID44 after a trial within trial. This rejection was mentioned in both paragraph 15 and paragraph 35 of the judgment. This statement is plainly wrong because as shown in the notes of proceeding at page 364 Volume 2 of the Appeal Record, the learned DPP conducting the trial was clearly recorded to have said she was no longer interested to tender ID44 as an exhibit. In other words, there was no trial within trial held to its conclusion where the admissibility of ID44 was determined. 15

We are equally hard-pressed to defend the accusation that it was not a speaking judgment because, again with respect, there was not much analysis of the evidence adduced other than the laying out in summary of what was said by the witnesses for the prosecution.

There is also another facet to this issue and it is that after the interrogation by PW12 and the recording of ID44, PW12 made seven police reports, the relevant ones being Exhs. P43, P45, P46, P48 and P49. Exh. P43 was the report made on the confession of the appellant that he killed the deceased with the dumbbell. Exh. P45 was the report on the discovery of the deceased’s body led by the appellant, Exh. P46 was on the seizure of the dumbbell in the appellant’s house upon being led there by the appellant, Exh. P48 was the confession of the appellant that he threw the deceased’s personal belonging such as handphone and the hammer allegedly used by the appellant to hit the deceased as stated in the report by the appellant and whereas Exh. P49 was in respect of the discovery and seizure of the said items. The pertinent confession of the appellant was reproduced by PW12 in the police reports he made on the 16 discovery and seizure of the exhibits as stated above. This was admitted by him in cross-examination as follows: ‘Cross-examination of PW12 Kamu siapkan pengakuan Tertuduh dengan tulisan kamu, kemudian kamu buat repot polis dalam kes ini? Setuju. Cadangkan pengakuan yang ada dalam repot polis berdasarkan kenyataan tulisan tangan? Setuju. [RA, Volume 2(4), pg 386] Lihat P43 selepas kamu buat P77. Isi kandungan P43 laporan tentang Tertuduh membuat satu pengakuan seperti dalam kenyataan yang kamu ambil dan tulis tangan? Setuju. Apa yang tertera dalam P43, kamu berdasarkan kenyataan bertulis kamu? Setuju. [RA, Volume 2(4), pg 387]’

Based on this unchallenged evidence, learned counsel for the appellant submitted that the said police reports should not have been admitted as evidence by the learned High Court Judge. In his submission, learned counsel also included another police report of PW12, that is Exh. P16 but that report was only on the 17 discovery and seizure of the van which the appellant used to transport the deceased body upon being led by the appellant and did not contain any admission of facts or confession by the appellant so could not be detrimental to the appellant.

When we examined the contents of the first five reports mentioned earlier, it cannot be denied that PW12 had reproduced the said confession of the appellant in the said reports and that confession was not evidence before the court. However, the law on section 27 is well settled in that voluntariness is not an issue for the admission of evidence pertaining to information leading to the discovery of a fact. For instance the Federal Court in Francis Antonysamy v Public Prosecutor [2005] 2 CLJ 481 have said this: “Since voluntariness is not a condition of admissibility of information supplied under s. 27 the privilege against self-incrimination which is manifested in an involuntary statement or in a statement made in breach of the requirements of s. 112 must be deemed to have impliedly abrogated insofar as s. 27 is concerned. It follows that the argument of learned counsel that s. 27 is subject to the voluntariness rule in s. 24 and the privilege against self-incrimination in s. 112 cannot be sustained.” 18

Nevertheless, the incorporation of the appellant’s confession which were not established to be voluntary into these police reports have indeed rendered the said reports inadmissible for their prejudicial effect far outweighed the relevancy of the said evidence. Furthermore, we noted that PW3 also said at page 27 Volume 2(1) of the Appeal Record that there was no strangulation marks on the deceased but in PW12’s police report Exh. P43 (page 112 of Volume 3(2) of the Appeal Record), PW12 stated that the appellant told him that he strangled the victim after hitting her three times with the dumbbell. Obviously, the reliability of the confession has been thrown into doubt by the said contradiction. What is also relevant to this issue which we would consider subsequently with the other issues is the fact, as stated earlier, that the learned High Court Judge erroneously said that he rejected ID44 after a trial within trial when in fact no such trial proceeded before His Lordship, which obvious error is of course much regretted.

Nonetheless and in spite of this rejection of the documentary evidence, the salutary fact which remains is that the deceased’s body and the relevant exhibits were discovered and the oral evidence of PW12 was that the appellant led them to the 19 discovery and eventual seizure of the said exhibits. The appellant in his witness statement never denied that he was present when the said discoveries and seizures were made but however denied his role in helping PW12 and his team to do these acts. In view of unsatisfactory state of the evidence above, it was not safe for the High Court Judge to rely on this evidence to support the conviction of the appellant. Non-Affirmative Finding Of Murder 21. The Penal Code, in section 299 and section 300, respectively, have laid out what constitute culpable homicide and the four instances when culpable homicide is murder, which reads as follows and are reproduced below without their illustrations:

“Culpable homicide Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Murder 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; 20

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;

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

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.”

The complaint of learned counsel for the appellant was that the learned High Court Judge did not make an affirmative finding as to which limb of section 300 was proven by the prosecution, which complaint was, with respect to the learned High Court Judge was also justified as no such finding was made by him although His Lordship did lay down the ingredients of section 302 in paragraph 50 of his judgment as follows:- “[50] Menurut s. 302 KK, pendakwaan perlu membuktikan 3 elemen iaitu:

50.1 Seorang manusia telah meninggal dunia;

50.2 Kematian itu disebabkan oleh kecederaan yang dialami; 21

50.3 Kecederaan itu dilakukan oleh Tertuduh dengan niat untuk mendatangkan kecederaan badan yang:

50.3.1 Tertuduh tahu ia boleh menyebabkan kematian; atau 50.3.2 cukup dalam keadaan biasa menyebabkan kematian.”

Thereafter His Lordship did consider and made his finding as whether there was a prima facie case made out against the appellant in paragraphs 51 to 53 which we had reproduced earlier, followed by his summary of the defence of the appellant in paragraphs 55 – 63, identification of the issues to be decided by him at the close of the defence case (paragraph 69) and then his findings at paragraphs 70 – 72, all of which have been reproduced earlier in our judgment. Learned counsel for the appellant submitted that there was therefore a serious misdirection on the part of the learned High Court Judge which had caused a miscarriage of justice to the appellant.

In addition, learned counsel referred us to the evidence of the PW3 which he submitted was inadequate and failed to support the charge of murder against the appellant because in his oral 22 evidence as well as in his witness statement (Exh. P10) and post-mortem report (Exh. P13), PW3 never at all said whether the injuries suffered by the victim were sufficient in the ordinary cause of nature to cause her death or that the alleged murder weapon, that is the dumbbell (Exh. P30A) actually fitted the profile of the injuries suffered by the deceased. Before going in depth into the issue raised, it is incumbent upon us to examine the said evidence of PW3 and the starting point of that is to reproduce page 8 of his report where the injuries were listed and his observation on them: “A. A lacerated wound measuring 1.5 x 0.5 cm placed more or less vertically over the front aspect of the left parietal area of the head. B. A lacerated wound measuring 2 x 0.5 cm placed obliquely over the left side of the top aspect of the head behind injury no. 1. C. Both cheeks showed diffuse contusions and were swollen partly due to hematoma and partly due to decomposition changes. The overlying skin was discoloured but, intact. D. A laceration measuring 1 cm in diameter, on the inner mucosal aspect of the upper lip involving the frenulum along the gum margin. E. An abrasion measuring approximately 1 x 0.5 cm over the triangular fossa of the upper 1/3rd of the left external ear. F. An abrasion measuring 1 x 1 cm over the outer middle 1/3rd of the left external ear. G. Both external ears in addition showed diffuse contusions. 23 H. Grazed abrasions measuring approximately 1.5 x 1 cm over the outer back aspects of back the right elbow. I. Grazed abrasions measuring approximately 1.5 x 1 cm over the outer back aspects of back the left elbow. J. A laceration measuring 3.5 x 2 cm and more or less triangular in shape, with surrounding abrasion and marginal contusion on the front aspect of the right knee.

It is evident that there were multiple blunt impacts predominantly to head and face. The face was swollen due to contusions and decomposition. Two lacerations were noted over the left parietal and top aspect of the head with corresponding widespread subgaleal haematoma over the left side of the scalp. Both external ears showed contusions and abrasions. Mucosal surface of the upper lip along the mid-line (frenulum) showed a laceration.

Grazed abrasions were noted over the back aspect of both elbows consistent with a fall or a scuffle. A triangular shaped laceration was noted on the front aspect of the right knee.

Brain showed subarachnoid haemorrhage on the outer aspect of the left cerebrum. Brain had undergone mild to moderate decomposition changes and thus it was not possible to recognize subtle injuries or changes.”

PW3 explained in his examination-in-chief that the injuries listed in item (h) to (i) above were ante-mortem injuries, in that they occurred when the deceased was still alive and in cross-examination agreed that it was injuries listed in item (a) and (b) that caused the death of the deceased. 24

Learned counsel for the appellant has referred us to the Federal Court’s decision in Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ 174 where the distinction between the two aforesaid sections was explained as follows at page 176: “In our view, the correct approach to the application of the two sections is this. Section 299 clearly defines the offence of culpable homicide. Culpable homicide may not amount to murder (a) where the evidence is sufficient to constitute murder, but one or more of the exceptions to section 300, Penal Code apply, and (b) where the necessary degree of mens rea specified in section 299 is present, but not the special degrees of mens rea referred to in section 300, Penal Code. We would like in this connection to express the need to bear in mind that all cases falling within section 300, Penal Code must necessarily fall within section 299, but all cases falling within section 299 do not necessarily fall within section 300. The first part of section 304, Penal Code covers cases which by reason of the exceptions are taken out of the purview of section 300, clauses (1), (2) and (3) but otherwise would fall within it and also cases which fall within the second part of section 299, but not within section 300, clauses (2) and (3). The second part of section 304, Penal Code covers cases falling within the third part of section 299 not falling within section 300, clause (4).”

Like in our case and in another Federal Court decision cited to us by learned counsel, that is, Cheong Kam Kuen v Public Prosecutor [2013] 1 MLJ 15 there was no definitive evidence from the pathologist that the injuries said to be fatal were 25 sufficient in the ordinary course of nature to cause death to the victim. The Federal Court in Tham’s case (supra) said the pathologist “should have been asked to give his opinion on the nature of the injuries and its likely and natural effects” but was not. In our case now, there was an attempt to do so as seen from the notes of proceeding at page 23 of Volume 2(1) which we would reproduce verbatim below but somehow, that attempt did not bear fruit and we have no inkling why it was so because the subsequent questions did not clarify the matter further. Since the next question and answer by PW3 is also relevant to this appeal, that evidence is also reproduced together with the earlier one: “Q: Doctor, you concluded cause of death as multiple blunt trauma, can this kind of injury ... in this particular case cause the death. Boleh saya tanya dalam Bahasa Melayu? Dalam keadaan biasa, kecederaan... M: Dia tidak faham. Normally for this kind of injury can cause blunt object? Yes. Doctor, did you conduct any examination as to the force needed to cause this injury and subsequently cause the death of the victim? No.” 26

Given this unsatisfactory state of the evidence on the proof of the offence of murder and with respect, the shortcomings in the judgment as stated earlier, we would follow the precedent set by the aforesaid decisions of the apex court and set aside the conviction for murder and in place, enter a conviction for culpable homicide not amounting to murder under section 304

of the PC.

Our decision to do so is reinforced by our resolution of the last issue raised by the appellant. Last Issue: Reasonable Doubt Raised By The Defence 30. We have earlier outlined the defence of the appellant and suffice for us to now highlight that the stun gun said by appellant to have been used by the deceased to hit him contained both his and the deceased’s DNA which corroborates his evidence that it was used by deceased as alleged. There is equally no dispute that the alleged murder weapon as per the alleged confession of the appellant that is the dumbbell only had the deceased’s DNA and not the appellant’s, unlike the hammer. The absence of the appellant’s DNA on the dumbbell is of some significance because PW3 in his evidence agreed that the fatal wounds on 27 the left side of the deceased’s head could have occurred simultaneously. This was what he said in cross-examination at page 25 of Volume 2(1) of the Appeal Record: “Q: Do you agree that these 2 wounds could have occurred simultaneously? Possible. With one blunt impact, possible.”

This evidence is significant and important because the defence was that the deceased fell and hit her head on the dumbbell whereas according to the alleged confession of the appellant and as stated in police report Exh. P43, he hit her with the dumbbell three times. That possibility alluded to by PW3 supports the defence version that the two fatal injuries were inflicted when she fell and hit the dumbbell, though not from hitting the edge of the bed as confirmed by PW3 in his evidence at page 28 of Appeal Record Volume 2(1). Granted that there are other injuries to the body of the deceased as outlined earlier, the defence, it must be remembered was that there was a fight and a tussle between the two of them and none of the injuries suffered by the deceased were said by PW3 to be defensive or serious in nature. 28

As raised by the learned DPP in her submission in reply before us, the weight of the dumbbell was established in evidence to be 10 kilograms and we find it quite illogical that with that weight and multiple blows allegedly used by the appellant to strike the deceased’s head, that it would produce only the 2 fatal wounds as stated above.

The learned DPP did also raise before us, in order to show the falsity of the defence, the contradiction in the evidence of PW5 and that of the appellant in that PW5 said the appellant told him that the deceased was playing with the dumbbell when she fell and hit her head on it, whereas in his defence he said they fought and she fell as a result of being pushed by him. Though there is that apparent contradiction in the version proffered, nevertheless the consistent trait is she fell on the dumbbell and in accepting the fact that there was a fight and following which death resulted, the appellant’s culpability was established with the substituted conviction which we had entered. As for his aftermath conduct in disposing the deceased body which the learned DPP submitted was not consistent with innocence, we would say that deplorable and reprehensible cannot even begin to describe that action of his. But we could not in all fairness, without other 29 evidence to say otherwise (and there was none in this case which relied solely on circumstantial evidence) that the said fact alone justifies the conviction for murder. In addition, the justified complaints levelled by the appellant against the decision of the learned High Court Judge as discussed earlier had rendered the conviction anything but safe.

We had confidently embarked on the assessment of the evidence above based on the Federal Court’s decision in Ahmad Najib Bin Aris v PP [2009] 2 CLJ 800 where at paragraph 20, the Federal Court held that we could do just that and that paragraph reads as follows: “Power Of Appellate Court To Review Or To Re-evaluate All Available Evidence [20] As regards the first main ground of appeal raised by the appellant, I am of the view that the Court of Appeal has the power to review or to re-evaluate all the evidence available as adduced by the prosecution. The Court of Appeal is in a position to do so in the present case even though the grounds of decision of the trial judge as appearing in the appeal records is found lacking in specific findings and with no reasons for the findings. In a case involving purely a question of fact, the Court of Appeal is free to determine whether or not the various findings of the trial Court are correct. (See Mohamed Mokhtar v PP [1972] 1 MLJ 122).” 30

Thus, for all the reasons as per the second until the fourth issues raised in this appeal before us, we have decided that the conviction for murder entered by the learned High Court Judge was against the weight of the evidence which as per the decision of the Federal Court in Parlan Dadeh v. Public Prosecutor [2008] 6 MLJ 19 entitles us to reverse the decision of the learned trial judge.

As for the sentence, considering primarily the mitigation raised by the appellant and the tragic loss of a young girl’s life, we have decided to impose an imprisonment term of 22 years on the appellant and to take effect from the date of his arrest. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 21st November 2019 Note: This copy of the Court’s Grounds of Judgment is subject to editorial revision. 31 Parties Appearing: For The Appellant: Dato’ Rajpal Singh Tiew Poh Nee (Messrs Rajpal, Firah & Wishnu) For The Respondent: Nurshafini Binti Mustafha Deputy Public Prosecutor Attorney General’s Chambers Watching Brief: Sim Yee Ling (Messrs Fyiona, Lai & Dennis Thong) Chan Yen Hui (Messrs Chan Yen Hui)

Magendran a/l Mohan v PP [2011] 6 MLJ 1;

Balasingham v Public Prosecutor [1959] 2 MLJ 173;

Raju @ Balachandran & Ors v State of Tamil Nadu AIR 2013 SC 983;

Rikky Purba v PP [2014] 3 CLJ 601;

Francis Antonysamy v Public Prosecutor [2005] 2 CLJ 481;

Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ 174;

Cheong Kam Kuen v Public Prosecutor [2013] 1 MLJ 15;

Parlan Dadeh v Public Prosecutor [2008] 6 MLJ 19;

Ahmad Najib Bin Aris v PP [2009] 2 CLJ 800.