Public Prosecutor v Mohd Ezri Azmar Bin Pavel (Q-05(LB)-214-05/2017)

1 IN THE COURT OF APPEAL OF MALAYSIA AT KUCHING (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: Q-05(LB)-214-05/2017 BETWEEN PUBLIC PROSECUTOR … APPELLANT AND

1. MOHD EZRI AZMAR BIN PAVEL … RESPONDENTS

2. MOHD HAZRIL BIN MOHAMED YUSOF [IN THE HIGH COURT OF SABAH AND SARAWAK AT KUCHING, SARAWAK, IN THE MATTER OF CRIMINAL TRIAL NO: KCH-45-302-1/2-2013] BETWEEN PUBLIC PROSECUTOR … APPELLANT AND

1. MOHD EZRI AZMAR BIN PAVEL … RESPONDENTS

2. MOHD HAZRIL BIN MOHAMED YUSOF CORUM: Hamid Sultan Bin Abu Backer, JCA Abang Iskandar bin Abang Hashim, JCA Badariah binti Sahamid, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of the Court) 2 GROUNDS OF JUDGMENT [1] The appellant/Public Prosecutor appeals against the acquittal of the accused for a reduced charge from section 302 of the Penal Code to section 325 read with section 34. Preliminary Observation [2] A charge of murder can be reduced to culpable homicide not amounting to murder under section 304 of the Penal Code or section 304A for causing death by negligence. It is unusual for a charge of murder to be reduced to cause grievous injury if the prosecution case is that injury complained off caused the death. [3] The appellants were charged in the High Court for an offence under section 302 of the Penal Code. The charge read as follows: "That you, on the 4th November 2012 at about 7.00 p.m, at D7 Office, Bangunan Jabatan Siasatan Jenayah, Ibu Pejabat Polis Kontinjen Sarawak, Jalan Nagor, Kuching, in the district of Kuching in the state of Sarawak, in furtherance of common intention of you all committed murder by causing the death of one KAMARUL ZAMRIZAL BIN KAMARUZAMAN (Identity Card No: 831031-13-5715) and that you have thereby committed an offence punishable under Section 302 of the Penal Code and read with Section 34 of the same Code." 3 [4] The learned High Court judge after hearing the prosecution case found that there was no prima facie case against both accused and in consequence both the accused were acquitted. [5] The prosecution then appealed to the Court of Appeal. The Court of Appeal by Order dated 11 December 2015 allowed partly the prosecution’s appeal and directed defence to be called for the reduced charge under section 325 read with section 34. The Order of Court of Appeal dated 11 December 2015 and the reduced charged framed by the Court of Appeal read as follows: “PERINTAH RAYUAN INI ditetapkan untuk pendengaran pada 08 Disember 2015 DAN ditangguhkan ke hari ini untuk keputusan dalam kehadiran Iswa Binti Tonie, Timbalan Pendakwa Raya bagi pihak Perayu dan Shankar R.P. Asnani (Daniel C.L. Ling bersamanya). Peguambela bagi pihak Responden-Responden (Responden-Responden hadir) DAN TELAH MEMBACA Rekod Rayuan yang difailkan disini DAN SETELAH MENDENGAR hujahan pihak-pihak yang hadir. MAKA ADALAH DENGAN SEBULAT SUARA DIPERINTAHKAN bahawa Rayuan Pendakwa Raya terhadap keputusan Mahkamah Tinggi yang melepaskan dan membebaskan Responden dari pertuduhan di bawah Seksyen 302 Kanun Keseksaan di akhir kes Pendakwaan ditolak. SELANJUTNYA ADALAH DIPERINTAHKAN BAHAWA Perayu telah Berjaya membuktikan secara prima facie satu kesalahan di bawah Seksyen 325 Kanun Keseksaan dibaca bersama Seksyen 34 Kanun Keseksaan 4 terhadap Responden-Responden DAN SETERUSNYA DIPERINTAHKAN BAHAWA

(ii) Perayu mengemukakan pertuduhan sewajarnya di bawah Seksyen 325 Kanun Keseksaan dibaca bersama Seksyen 34 Kanun Keseksaan terhadap Responden-Responden.

(iii) Responden-Responden dipanggil untuk membela diri terhadap pertuduhan di bawah Seksyen 325 Kanun Keseksaan dibaca bersama Seksyen 34 Kanun Keseksaan; dan

(iv) Kes ini ditetapkan untuk sebutan di hadapan Mahkamah Tinggi pada 11/12/2015. DIBERI di bawah tandatangan saya dan meterai Mahkamah pada 11 Disember 2015. CHARGE That you, on 4 November 2012 at about 7.00 pm, at Pejabat Cawangan D7, Jabatan Siasatan Jenayah, Ibu Pejabat Kontinjen Sarawak, Jalan Nagor, Kuching, in the district of Kuching, in the state of Sarawak, in furtherance of common intention of you all, did commit grievous bodily harm by inflicting injury on Kamarul Zamrizal bin Kamaruzaman, ic no. 831031- 13-5715 and as such, you have committed an offence that is punishable under section 325 Penal Code and read together with section 34 of the same Code. Sentence: shall be punished with imprisonment for a term which may extend to 7 years and shall also be liable to fine.” 5 [6] What the Order of the Court of Appeal means in law and fact is that the prosecution has established a prima facie case under section 325 to be read together with section 34 of the Penal Code. [7] It is well established that once a prima facie case has been established, it rests upon the defence to narrate the defence version to obtain an acquittal. The threshold to satisfy the burden is not high, generally in the Penal Code offences. However, when there are direct evidence of eye witness of the assault, it may be an uphill task for the defence unless the defendants’ version is accepted by the trial court. This in simple term is referred to as finding of fact and assessment of defence case. As long as the trial court had taken into consideration all the relevant facts and the evidence of the defence and have given the reasons for the decision, the appellate court is required to refrain from intervening in the decision of the High Court. The appellate court must be cautious when the Court of Appeal itself in the first instance had found a prima facie case and what then will be relevant is to see whether the defence version will entitle the accused for an acquittal, taking into consideration the totality of the evidence. [8] The other important jurisprudential point which we will like to highlight which was not taken up by the parties is that a charge of murder in our view cannot be reduced to grievous hurt when the prosecution case is that the injury caused the death. The reduced charge should have been for either sections 304 or 304A offence. 6 [9] In consequence, proceeding under section 325 in our view, is a mistrial and infringement of Articles 5 and 8 of the Federal Constitution and in consequence the accused must be acquitted in limine. [10] In Tong Kam Yew & Anor v Public Prosecutor [2013] 4 MLJ 888, Hamid Sultan bin Abu Backer JCA considered the jurisprudence relating to mistrial and miscarriage of justice and had this to say: “We do not think we can accede to the invitation of the learned deputy public prosecutor as it is a clear case of 'inter alia' statutory as well as constitutional breach which we have adumbrated earlier and a classic case of mistrial and miscarriage of justice. In Crane v Director of Public Prosecutions [1921] 2 AC 299 the House of Lords on the facts of the case asserted that mistrial amounted to no trial. When it is a case of mistrial the court has two options. One to order for retrial and the other to order an acquittal where the contests of justice requires. Support for the proposition is found in the case of R v Gee. R v Dunscombe [1936] 2 All ER 89 where it was stated: … The result is that there has been what is sometimes called a mistrial; in this case it would perhaps be more correct to say that there had been no trial at all. Under the decision in Crane v Director of Public Prosecutions, this court has power to order that a proper trial should take place; as it was put in that case, 'that the proceedings should re-commence from the point where they broke down'. Therefore this court has power to order that these men should be taken back and that the proceedings should be re- 7 commenced de novo, that the depositions be properly taken and the men brought before the court of quarter sessions. But this court has also power, where it thinks the interests of justice require it, to order that a verdict of acquittal should be entered and to allow the prisoners to be discharged. In the circumstances of this case the court thinks that is a proper order to make here, because these men were in custody three months before trial. They were then held to bail with this charge hanging over them for another three months. They were then tried and convicted on 13 March. They have been in custody another two months, and if this court were to order a new trial and the proceedings had to begin again, they would have to wait for trial before quarter sessions, which would probably be in July. It would be oppressive to commit them for retrial. In the circumstances, therefore, the court has come to the conclusion that the conviction should be quashed and that the men should be discharged. We also express the hope that, if this procedure obtains elsewhere, the magistrates will comply strictly with the requirements of the Act. The order of the court is therefore that the conviction be quashed and the prisoners be discharged. The factual matrix of the case does not warrant a re-trial but only an acquittal as miscarriage of justice has set in at the prosecution stage as well as at the end of trial and the integrity of the whole trial process has been compromised for reasons we have stated earlier.” Brief Facts [11] To save judicial time, we reproduce verbatim the facts summarised before us in a rudimentary manner. It reads as follows:- 8 “[1] The deceased, Kamarul Zamrizal bin Kamaruzaman a.k.a Boy was alleged to have died at the hands of two police inspectors whom he had, a few months prior to his death, assaulted and robbed outside a pub in Kuching. The two police inspectors (the two Accused) were therefore charged with his murder. [2] On 1/11/2012 at about 2.30am the two Accused had gone to Duluxe KTV Pub in response to a complaint that there was a fight outside the pub. But when they arrived there they were assaulted and robbed by a group of men, one of whom was identified as Boy. [3] Boy was later arrested together with his friend Syairul Hafiqka (PW43) by a group of police officers in a room at the upper floor of his grandparent’s house. During his arrest, Chief Inspector Ahmad Zamri (PW41) testified that Boy resisted arrest and struggled to free himself but was subdued and arrested. PW41’s evidence was corroborated by Lance Corporal Budin (PW42) who added that it took three of them to subdue Boy and the struggle lasted for ten minutes but after which Boy was still fine. [4] PW43 who was arrested together with Boy testified that he saw three to four police personnel kicked and punched Boy on his face and body. Boy’s uncle Mohamad Ilham (PW21) who was present in the house during the arrest said that he heard from the ground floor that the police shouted “do not run, do not run” and the answer “I will not run” and the words “sakit, sakit”. He added the sound of the struggle and the screams lasted for about five minutes. PW21 evidence was confirmed by Boy’s sister Liyana (PW31) who was also around during the arrest. 9 [5] Boy and Syairul Hafiqka (PW43) were then brought to the D7 office with their head covered with cloth. At the D7 office, ASP Md Nurazam (PW35) testified that he heard some screaming outside his office and when he went out to investigate he saw Boy on the floor and the 2nd Accused standing near him. He then pulled the 2nd Accused as he assumed that he had beaten Boy up. Boy was then bleeding from his mouth and nose. [6] Constable Ray Alvin (PW39) claimed to witness the assault by the 2nd Accused on Boy. While Boy was interrogated the two Accused came. PW39 saw the 2nd Accused gave a jab on Boy’s head with his left knee. Boy fell and the 2nd Accused then stepped on his face a few times whilst the 1st Accused kicked him on his back. [7] Lance Corporal Nicxon (PW40) testified that he was asked by the 1st Accused to take a photograph of him stepping on Boy’s head using the 1st Accused’s handphone [Exhibit P34 (12)]. Later that night he helped to send Boy to the hospital. At that time Boy was unable to walk or talk and they had to carry him to the car. [8] Inspector Ahmad Zamri (PW41) also testified that he saw from the veranda of the office that the 2nd Accused gave a knee jab once to Boy’s head and he quickly went in to take both the Accused out but was overtaken by ASP Md Nurazam (PW35). He helped to prop Boy against the wall. Boy was bleeding from his left eyebrow and was weak. [9] Lance Corporal Budin (PW42) also testified that he saw the 2nd Accused gave a knee jab once to Boy’s head. However, PW42’s blood was found on Boy’s short pants which Boy was wearing when he was arrested [Exhibit P24 (U and R)]. 10 [10] Syairul Hafiqka (PW43) who was arrested together with Boy testified that his head was still covered with the same piece of cloth when he was brought to a room where he heard Boy’s voice saying “sakit”, “mak”, “bapak”, “tolong-tolong”. In cross-examination, he agreed that he heard Boy screaming in pain as though he was beaten up for about one hour after arrival at D7 office and agreed that he saw one of the police officers stepped on Boy when he was on the floor whom he later identified as Lance Corporal Budin (PW42) and repeated that it was this same policeman who stepped on Boy’s hand when he was on the floor. [11] Dr. Tan Yew Chin (PW46) who conducted surgery on Boy testified that he saw that the brain of Boy was swollen and bulging from the skull and testified that the injury was caused by trauma. After the surgery Boy developed a lung infection. He also confirmed that there were over twenty multiple bruises all over Boy’s body caused by blunt object. He further said in cross-examination that Boy survived the head injuries but died from lung infection. [12] Dr. Khoo Giat Seng (PW47) saw Boy after the surgery and agreed that the death of Boy was from lung infection. He also agreed in cross-examination that Boy survived the brain injury, was in stable condition but became infected and died of lung infection. [13] Dr. Hj. Jamil (PW45) was the pathologist who performed the post-mortem on Boy. When asked what the cause of Boy’s death was, he said it is septicaemia secondary to aspiration pneumonia and post severe traumatic head injuries but when asked further if his external and internal examination of the body showed any injury that is fatal in nature, his answer was “none”. 11 [12] The defence case was summarised as follows: “1. Ins. Ezri (1st accused) confirmed on the robbery and assault done by Boy at the KTV Pub. Ezri was then informed that Boy and Syairul Hafiqka (PW43) have been arrested. Ezri went to the office to see Boy. Ezri found that Boy was already leaning against the wall, his eyes cellotaped with both hands handcuffed behind his back. Ins. Thomas said to Ezri that “kami sudah lanyak dia bro”. Sgt. Zainal Abidin (PW36) asked Ezri again whether Boy was the one who robbed Ezri and Ezri said yes. Sgt. Zainal Abidin then kicked Boy with spike-proof boot multiple times without mercy. Ezri then went for dinner. Ezri said neither Ezri nor Ins. Hazril (2nd accused) assaulted Boy.

2. Ins. Hazril (2nd accused) adopted Ezri’s defence. Hazril gave the photographs of Boy to his brother-in-law, Mohd Fadli (DW4) because Hazril suspected the IPK team would blame Hazril for this incident. The photographs show that the evidence of the tendered photographs by the prosecution were modified version of the photographs of Mohd Fadli. Hazril’s foot was not on Boy’s head but at the side of Boy’s head. Hazril denied he gave knee jab at Boy’s face. Hazril was forced to give the cautioned statement before.

3. Navendran (DW2) was an aircraft maintenance engineer. Navendran gave a meteorological report that between 5-10 pm on 5.11.2012, no rain was recorded. But there was rain between 6-8 pm on 7.11.2012. This is important because the photographs taken on 7.11.2012 show traces of rain. Thus, this show that Hazril blood could be used by the Forensic team on 7.11.2012 and the photographs were not taken on 5.11.2012 as per testified.” 12 [13] The grounds of decision was summarised as follows: “1. Whether the prosecution had proven a prima facie case.

2. The digital evidence from the seized handphones:

3. Forensic evidence:

4. Fatality of the injuries caused: 14

5. Conclusion:

6. Whether the defence was able to raise a reasonable doubt.

1. Her Ladyship, the Learned High Court Judge had erred in fact and in law in acquitting and discharging the Respondents at the close of the defence case when there was sufficient evidence to convict them under the said charge.

2. Her Ladyship, the Learned High Court Judge had erred in fact and in law in acquitting and discharging the Respondents at the close of the defence case when her Ladyship had held at the close of the Prosecution case that, "...Although after reaching this conclusion I arn permitted by law to call for defence on a lesser charge, I made a conscious decision not to do this considering that no lesser alternative 17 charge was proffered against the two accused persons and what they did could only amount to, at best, assault or causing hurt under the Penal Code because the medical evidence does not support a graver offence than that..."

3. Her Ladyship, the Learned High Court Judge had erred in fact and in law in acquitting and discharging the Respondents although their defence are mere denials.

4. Her Ladyship, the Learned High Court Judge had erred in fact and in law when her Ladyship ruled that the charge under section 325 of the Penal Code proffered against the Respondents were lacking in the particulars of the acts complained off against the Respondents whereas the charge has complied with the express requirement of section 154 of the Criminal Procedure Code.

5. Her Ladyship, the Learned High Court Judge had erred in fact and in law when her Ladyship ruled that the failure of the prosecution to directly put to the Respondents in cross-examination the exact acts committed by them which constitute the offence under section 325 offends the principle of Wong Swee Chin applied by Court of Appeal in Ayoromi Helen v PP [2005] 1 CLJ 1 whereas subsequently the Federal Court had overruled the Court of Appeal decision in Ayoromi Helen.

6. Her Ladyship, the Learned High Court Judge had erred in fact and in law when her Ladyship ruled that the photograph Exhibit D2(H) has been doctored whereas there was no evidence to support that finding. 18

7. Her Ladyship, the Learned High Court Judge had erred in fact and in law when her Ladyship ruled that, "...I have to say that this alluded to the probability that the blood sample of insp. Mohd Hazril has been used by the Forensic team to implicate him when they went there on the 7.11.2012 - not the 5.11.2012 as per their testimonies..."

8. Her Ladyship, the Learned High Court Judge had erred in fact and in law in acquitting and discharging the Respondents at the close of the defence case against the weight of the evidence. The Appellant prays to the Honourable Court that the decision by Her Ladyship, the Learned High Court Judge in acquitting and discharging the Respondents be set aside and the Respondents be convicted and sentenced under section 325 Penal Code read together with section 34 of the same Code, and/or any other order as justice may demand.” Jurisprudence relating to s.325 read with s.34 [15] After the hearing of the appeal, we decided that there is no merit in the appeal. Our decision inter alia are as follows:

(ii) PW42, Corporal Budin bin Ya who testified that he saw Insp. Mohd Hazril gave a knee jab on Boy's head (page 1009 of the notes of proceedings) qualified this evidence of his when in cross-examination he answered 'I do not know because I did not see when it was put to him that, 20 "PUT: Insp. Mohd Hazril and Insp. Mohd Ezri Azmar, they never raise a hand on Kamarul Zamrizal. Do you agree, disagree or you do not know?" Although I did mention in my earlier judgment on the two accused’s acquittals, at page 14 line 24 to page 15 line 6 thereof that the question was interpreted to him in Bahasa Malaysia as "...tidak menaikkan tangan terhadap Kamarul" and his evidence was that Insp. Mohd Hazril used his leg on Boy, nevertheless as I mentioned in that judgment at page 15 lines 5-6, Lance Corporal Budin was not reexamined on this evidence and therefore I would have to give the benefit of the doubt to the two accused. The aforesaid evidence or agreement of these two witnesses of course contradicted that of Sgt. Zainal and Insp. Ahmad Zamri bin Jai and for Corp. Budin it was also a self-contradiction. In the face of such contradictions on a material aspect of the charge under section 325, there is, in the words of the Court of Appeal in Abdul Rahim a/l Abdul Razak v Public Prosecutor (2015) 2 MLJ 835 as cited by Mr. Shankar Ram, "the court was left with no trustworthy evidence upon which it could base a conviction”. These very same quoted words were earlier cited with approval by the Federal Court in Md Zainuddin B Raujan v Public Prosecutor (2013) 3 MLJ 773 where it held that the proposition of the law is that if in a case the prosecution leads two sets of evidence, each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. 21

(iii) The high probability of the blood sample of the Insp. Mohd Hazril being used to inculpate him as discussed earlier.

(iv) The difference in the photographic evidence of Insp. Mohd Hazril and Boy which I have also mentioned earlier.