Public Prosecutor … Appellant v Soha Beta (Q-05(LB)-454-12/2016)

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: Q-05(LB)-454-12/2016 BETWEEN PUBLIC PROSECUTOR … APPELLANT AND … RESPONDENTS [In The Matter of Criminal Trial No: MYY-45B-2/7-2014 In the High Court in Sabah and Sarawak At Miri] BETWEEN PUBLIC PROSECUTOR AND CORAM: Hamid Sultan Bin Abu Backer, JCA Umi Kalthum binti Abdul Majid, JCA Abdul Rahman bin Sebli, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court) 2 GROUNDS OF JUDGMENT [1] The appellant/Public Prosecutor appeals against the decision of the learned High Court judge who acquitted and discharged both the respondents of a charge under section 302 of the Penal Code read with section 34 of the said Code. [2] The said charge reads as follows: "Bahawa kamu, bersama-sama, pada 26.11.2013, jam lebih kurang 3.30 petang, bertempat di Lereng Bukit, Jalan Ladang Alamwasa Sdn. Bhd. Suai, Batu Niah, di dalam Daerah Miri, dalam negeri Sarawak, didapati dengan niat bersama melakukan pembunuhan dengan menyebabkan kematian ke atas seorang bayi lelaki (tiada nama) umur lebih kurang 2 hari, oleh yang demikian, kamu telah melakukan satu kesalahan di bawah Seksyen 302 Kanun Keseksaan dan dibaca bersama dengan Seksyen 34 Kanun yang sama." [3] What is important to note in this case is the respondents are biological parents of the deceased/infant. Both were accused of burying the infant alive about 48 hours after the birth of the infant. Both were last seen in the Hospital with the infant. Subsequently, there was one eye witness to say that both brought and buried the infant, in the vicinity of a factory where the eye witness was working in the factory. The dead body of the infant was recovered by the police team. The eye witness evidence in this case is one where the identification of two persons could not be clearly established and in consequence the prosecution relies on 3 the jurisprudence of circumstantial evidence to establish a prima facie case. [4] The petition of appeal reads as follows: “1. The Learned Judicial Commissioner had erred in fact and in law when his Lordship ruled that the prosecution failed to prove a prima facie case under section 302 Penal Code read together with section 34 of the same Code against the weight of the evidence.

2. The Learned Judicial Commissioner had erred in fact and in law when his Lordship ruled that, "...I find that the baby was already dead due to asphyxia before he was buried at Ladang Alamwasa on 26.11.2013. I made my finding after reading all the prosecution's evidence and in particular the evidence of PW13, PW18 and PW19..."

3. The Learned Judicial Commissioner erred in fact and in law when his Lordship failed to consider PW18's evidence that when the deceased baby's body was found buried it was wrapped in 2 (two) layers of green and white clothing and that would explain why the deceased baby's nostrils and mouth had no soil in it.

4. The Learned Judicial Commissioner erred in fact and in law when his Lordship failed to consider these facts that:-

whereas, the Respondents need to explain their conduct under section 9 of the Evidence Act 1950.

5. The Learned Judicial Commissioner erred in fact and in law when his Lordship failed to order the Respondents to enter their defence whereas the totality of the evidence adduced shows that a prima facie case had been made out against the Respondents under the original charge.” [5] The basic ingredients for this offence are quite straight forward and the facts of the case will show nexus to the respondents and death of the infant. The debatable issue will only be related to whether the infant died of asphyxia by burying the infant alive or the death of the infant took place before burial. In jurisprudential term related to culpable homicide, this issue may have little relevance. There was medical evidence as well as circumstantial evidence to support the prosecution’s case that the infant was buried alive. The respondents may have a different version for the cause of death of the infant and the subsequent burial which may lead to an acquittal or reduce charge but that can only be done at the defence stage. As per the charge, the ingredients of the offence the prosecutor have to establish by direct and/or circumstantial evidence are as follows:

(ii) infant had died of asphyxia;

(iii) the respondents with common intention had buried the infant alive. 5 Brief Facts [6] The brief facts of the case have been summarized by the learned Deputy Public Prosecutor and inter alia read as follows:

1. The 2nd appellant had given birth to a baby boy on the 23.11.2013 at Miri Hospital. Both the 2nd appellant and the infant were confirmed fit and healthy. The 2nd appellant and the infant were allowed to be discharged from the Miri Hospital on the 24.11.2013.

2. Merely about 48 hours after the infant was discharged, the infant was found dead, buried underneath the soil.

3. Immediately before the discovery of the infant underneath the soil, PW13 had seen the 1st appellant and a female who carried a baby in a "kain sarong batik" entering the plantation from the main road facing towards PW13's guard house. PW13 could see the 1st appellant's face but could not see the face of the female since she was facing down and carrying the infant.

4. When they reached at the junction near the pond, the 1st appellant and the female together with the infant made a right turn to the bushes (the place where the infant was found buried) and PW13, from his guard house, could not see what was happening inside the bushes. 6

5. After 10 minutes; PW13 saw them coming out from the bushes and walking towards the main road. At this particular time, PW13 saw the 1st appellant washed his hands in the pool of water collected in the tyre track and PW13 saw the female was no longer carrying anything. She was merely carrying an empty sarong and it was the same sarong carried by her earlier.

6. Later, PW13 heard sounds of infant crying. It was two times and came from the direction of bushes. PW13 went to the said direction for checking and further saw a patch of earth that had recently been dug up and covered with white fertilizer plastic bag that had been used. PW13 used his foot to push the soil aside near the white fertilizer plastic bag but he did not manage to see anything. Then PW13 returned to his guard house to take the hoe. By using the hoe, PW13 tried to remove the top soil slowly and suddenly he saw a leg sticking out from the ground. PW13 saw no movement of the infant.

7. The police was called to investigate the matter and the infant was brought to Miri General Hospital for post mortem. Green and White cloths printed with words "UNTUK KEGUNAAN HOSPITAL SAHAJA" were also found wrapping the body of the infant underneath the soil.

8. The Miri police managed to trace the appellants somewhere in Bintulu and they were arrested. 7

9. Based on this arrest; the police had seized several clothings belonging to the 2nd appellant which had been worn by her during her admission to Miri Hospital and during the commission of the offence, the clothes belonging to the 1st appellant which had been worn by him during the commission of the offence.

10. The DNA analysis conducted confirmed that the appellants were the biological parent of the infant. Other than that, the DNA of the infant was also detected on the clothing worn by the appellants during the commission of the offence.

11. The post mortem of the infant confirmed that the cause of death was Asphyxia and the Pathologist was of the opinion that if the infant was buried alive underneath the soil, it can cause Asphyxia. The pathologist further testified that the act of burying the infant underneath the soil was sufficient in the ordinary course of nature to cause death to the infant and the chance of survival of the infant was "NIL". [7] In the instant case, any reasonable tribunal appraised of the fact and law would have to come to the conclusion that the ingredients of the offence had been satisfied principally by PW19 - the pathologist, PW13 - the security guard, the DNA evidence, direct evidence of hospital staff at the time of birth, etc. The nexus of the infant, the respondents and the cause of death per se can be said to establish a prima facie case based on direct and/or circumstantial evidence. Support for the proposition is found in a number of cases. To name a few are as follows: 8

(ii) In the case of Sunny Ang v PP [1967] 2 MLJ 195, the accused was charged with the murder of his lover by allowing her to dive in unsafe waters. The prosecution led evidence to show that the accused was a bankrupt and had taken life insurance policies in which the accused was the beneficiary. The accused made a claim with the insurance company within 24 hours after her disappearance. Basing on the circumstantial evidence the court convicted and sentenced the accused to death. The trial judge in his summing up and as quoted by the Federal Court at page 198 stated: "The second question to which I must draw your attention is that the question in this case, depending as it does on circumstantial evidence, is whether the cumulative effect of all the evidence leads you to the irresistible conclusion that it was the accused who committed this crime. Or is there some reasonably possible explanation such, for example, Was it an accident?, … 9 Now, as I told you earlier on, one of the points about circumstantial evidence is its cumulative effect. Any one of these points taken alone might, you may think, be capable of explanation. The question for you is: where does the totality of them, the total effect of them all, lead you to? Adding them together, considering them not merely each one in itself, but altogether, does it or does it not lead you to the irresistible inference and conclusion that the accused committed this crime? Or is there some other reasonably possible explanation of those facts? The prosecution case is that the effect of all this evidence drives you inevitably and inexorably to the one conclusion and one concluding only: that it was the accused who intentionally caused the death of this young girl".

(iii) The Supreme Court of India, in the case of Chandmal & Anor v State of Rajasthan [1970] SC 917 propounded a three-fold test to convict based on circumstantial evidence. The test suggested was as follows:

(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. 10 [8] It is now well established that when the courts had to decide merely on circumstantial evidence at the prosecution or defence stage it must consider the following, namely:

(ii) the incriminating circumstances must lie incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis other than the guilt of the accused;

(iii) the circumstances from which the conclusion of guilt is to be drawn should be fully established, i.e. there must be a complete chain of evidence that will not leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must show that, within all human probability, the act must have been done by the accused; and

(iv) the circumstances should be of a conclusive nature and tendency. [9] Common intention is a statutory formula and case laws do not require mens rea to be established. The close nexus of the accuseds to the crime and the fact that the crime was committed will prima facie be sufficient for the prosecution to invoke section 34. That does not mean that the defence at the defence stage will not be able to demolish the allegation and proof of common intention. It all depends on the facts as well as the version of the defence story at the defence stage. There are a 11 number of cases which has dealt with the jurisprudence of common intention. In Ravindran a/I Ramasamy v Public Prosecutor [2013] 4 MLJ 665 Hamid Sultan bin Abu Backer JCA on the issue of common intention had this to say: