RAMES A/L ARUMUGAM v Pendakwa Raya (B-05(M)-572-12/2019)

Rames a/l Arumugam ("the $ 1^{\mathrm{st}} $ Appellant") and Tew Siew Kem ("the $ 2^{\mathrm{nd}} $ Appellant") were charged under section 302, read together with section 34 of the Penal Code for the murder of Sukumaran a/l Arumugam ("the deceased").

The charge against the $ 1^{\mathrm{s t}} $ Appellant reads: "Bahawa kamu bersama-sama seorang yang masih bebas, bagi mencapai niat bersama pada tarikh antara 3 April 2017 jam lebih kurang 11.30 malam hingga 4 April 2017 jam lebih kurang 7.15 pagi bertempat di Kebun Kelapa Sawit Lot 358, Batu 38, Jalan Rawang Bestari Jaya, di dalam daerah Kuala Selangor, di dalam Negeri Selangor Darul Ehsan, telah melakukan kesalahan membunuh seorang lelaki bernama Sukumaran A/L Arumugam (No. KP: 830920-10-6143). Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan dan dibaca bersama Seksyen 34 Kanun Keseksaan."

The charge against the $ 2^{\mathrm{n d}} $ Appellant reads: "Bahawa kamu bersama dengan Rames A/L Arumugam No. KPT 770628-10-5053 yang telah dituduh di Mahkamah Tinggi Shah Alam No. Kes 45B-9-03/2018 bagi mencapai niat bersama pada tarikh antara 3 April 2017 jam lebih kurang 11.30 malam hingga 4 April 2017 jam lebih kurang 7.15 pagi bertempat di Kebun Kelapa Sawit Lot 358, Batu 38, Jalan Rawang Bestari Jaya, di dalam daerah Kuala Selangor, di dalam Negeri Selangor Darul Ehsan, telah melakukan kesalahan membunuh seorang lelaki bernama Sukumaran A/L Arumugam (No. KP: 830920-10-6143). Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan dan dibaca bersama Seksyen 34 Kanun Keseksaan."

The Appellants did not plead guilty to the charge, and a joint trial was held before the learned Judicial Commissioner ("JC").

The prosecution called a total of 17 witnesses. The learned JC had summarised the pertinent facts of the prosecution's case in his grounds of judgment. We respectfully adopt them with some modifications where necessary.

On 3.4.2017, the night of the incident, SP6 was drinking beer with the deceased in front of the deceased's house. At the time, SP6's brother, SP12, stood at the gate of his relative's house, just next to the deceased's house. According to SP6 and SP12, at about 11.30 p.m., a blue Proton Iswara arrived in front of the house. Two men came out of the car and walked towards the deceased. The two men then attacked the deceased with a parang and knife. The deceased shouted for help as the two men attacked him. The deceased ran to the palm oil plantation in front of the house, and the two men pursued him. After a few minutes, the two men emerged from the plantation and left with their car.

SP6 then went to look for the deceased and shouted his name, but he could not find the deceased. He went to the Batang Berjuntai Police Station, where he informed the police officer of what happened and that the deceased had gone missing. He later led the police to the area where the incident happened.

The police arrived at the scene with their patrol car. SP2, a police officer, stated that he took out a torch light and directed it towards the plantation as guided by SP6. However, he could not see much as the area was dark. The police then left the scene.

On the following morning, i.e. on 4.4.2017 at about 7.30 a.m., the deceased's body was found by SP3, a neighbour. The police were called to the scene. SP17, the investigating officer, carried out an investigation on the deceased's death. SP9, the deceased's brother, later identified the deceased.

At about 3.00 p.m. the same day, a post-mortem was conducted by SP15, a Consultant Pathologist at Sungai Buloh Hospital. SP15 gave evidence that the cause of death of the deceased was a 'stab wound to the heart'. Several samples were taken from the deceased's body for analysis.

SP11, the government chemist who analysed the samples, gave evidence that there were traces of alcohol in the blood and urine of the deceased.

Subsequently, the $ 1^{\mathrm{st}} $ Appellant was arrested. SP6 and SP12 positively identified him during the identification parade. The $ 2^{\mathrm{nd}} $ Appellant was arrested much later, and he was also positively identified by SP6 and SP12 during the identification parade.

At the close of the prosecution's case, the learned JC found that the prosecution had successfully proven a prima facie case against the Appellants as per the charge. As a result, the Appellants were ordered to enter their defence.

The Appellants gave evidence on oath. They did not call any other witnesses to testify.

The $ 1^{\mathrm{st}} $ Appellant gave evidence that he had only met the deceased, whom he knew as 'Kataraja' three times before the day in question. He knew SP6, SP12 and 'Chi Chi' since he was small. He also knew that SP6 and SP12 were siblings and knew them as 'Ammu' and 'Jumbo'.

According to the $ 1^{\mathrm{st}} $ Appellant, on the night in question, he was with the $ 2^{\mathrm{nd}} $ Appellant, SP12, one 'Chi Chi' whom he had known since he was small, and one 'Omar' at SP12's house. At about 11.00 p.m., they decided to go out and eat Bak Kut Teh in Ijok.

The 1 $ ^{st} $ Appellant claimed that as they were about to leave, SP12 received a phone call from SP6. SP12 then informed the 1 $ ^{st} $ Appellant and the others that SP12's brother, SP6, had a quarrel with the deceased, and the deceased had taken SP6's motorcycle away. SP6 had also requested SP12 to come and pick him up. SP12 requested help from the 1 $ ^{st} $ Appellant and the others, and soon after that, they all went to the deceased's house in two separate cars, a Honda and a Proton Iswara.

According to the $ 1^{\mathrm{st}} $ Appellant, when they arrived at the deceased's house, the $ 2^{\mathrm{nd}} $ Appellant came out from the Proton Iswara and slashed the deceased. The $ 1^{\mathrm{st}} $ Appellant claimed not to have a clear view of the incident as he was seated at the back of the other car. However, he claimed to have seen the $ 2^{\mathrm{nd}} $ Appellant chasing the deceased into the oil palm plantation. He followed them to stop the $ 2^{\mathrm{nd}} $ Appellant from fighting with the deceased.

The $ 1^{\mathrm{st}} $ Appellant stated that the plantation area was dark, and they could not find the deceased. After a brief moment, the $ 1^{\mathrm{st}} $ Appellant and the others left the plantation and the area with the same car they had arrived with.

The $ 1^{\mathrm{st}} $ Appellant denied having any knowledge of what happened to the deceased. He also denied having killed, slashed or bashed the deceased. The 1 $ ^{st} $ Appellant denied carrying any weapons at the scene or using any weapon against the deceased.

The $ 2^{\mathrm{n d}} $ Appellant gave evidence that SP6, SP12, the $ 1^{\mathrm{s t}} $ Appellant and the deceased are his friends since they were small. He also knew 'Murugan'/'Omar' for 19 years.

According to the $ 2^{\mathrm{nd}} $ Appellant, on the day in question, he and four others left Murugan's house to have Bak Kut Teh when SP12 received a phone call from his brother, SP6. After the call, SP12 told them they should visit his brother before going for their meal. The $ 2^{\mathrm{nd}} $ Appellant and Murugan went with the Proton Iswara, whereas the $ 1^{\mathrm{st}} $ Appellant, Chi Chi and SP12, went with the Honda.

The $ 2^{\mathrm{nd}} $ Appellant claimed that SP6 and the deceased were seen drinking when they arrived at the scene. He then saw the Honda approaching the said house. According to the $ 2^{\mathrm{nd}} $ Appellant, he could not see clearly what happened, but he saw the deceased running away, and the $ 1^{\mathrm{st}} $ Appellant was chasing the deceased while holding a parang. The $ 2^{\mathrm{nd}} $ Appellant said he quickly went after the $ 1^{\mathrm{st}} $ Appellant to stop him and pulled the $ 1^{\mathrm{st}} $ Appellant away from the area. He did not know which way the deceased ran or whether the deceased was hiding or had run away from the plantation. He then asked the $ 1^{\mathrm{st}} $ Appellant to leave the area, and they left afterward.

The $ 2^{\mathrm{n d}} $ Appellant denied that he was the one who had slashed the deceased. He also denied that the $ 1^{\mathrm{s t}} $ Appellant was the one who tried to stop him and who had pulled him away from the area.

The $ 2^{\mathrm{n d}} $ Appellant also denied bringing with him a parang that night and that he had used that parang to slash the deceased. He denied chasing the deceased with the $ 1^{\mathrm{s t}} $ Appellant into the plantation. He denied knowing what happened to the deceased or that he had killed the deceased that night.

At the conclusion of the trial, the learned JC found that the Appellants had failed to raise any reasonable doubt to the prosecution's case and that the prosecution had successfully proven their case against the Appellants beyond a reasonable doubt. Thus, the Appellants were found guilty and convicted of the charge against them. Consequently, the Appellants were sentenced to death.

Aggrieved with the decision of the learned JC, the Appellants filed their respective appeals, which were set for hearing before us. After carefully perusing the appeal records and hearing all parties to these appeals, we unanimously decided that the Appellants' conviction was safe and affirmed the decision of the learned JC with regard to the Appellants' conviction and sentence. Below are our reasons for holding so.

In this appeal, the issues raised by the Appellants can be summarised as follows, namely whether the learned JC had erred, both in fact and in law, when he failed-a. to consider that there were material discrepancies in the evidence of SP6 and SP12, which undermined their credibility; b. to draw an adverse inference against the prosecution for failing to call Chi Chi and Murugan/Omar to give evidence; c. to consider that the investigation conducted by the investigating officer was shoddy and that the evidence adduced in its totality did not lead to the only irresistible conclusion of the Appellants' guilt; and d. there was no evidence of common intention between the Appellants to murder the deceased.

The Appellants submitted that the learned JC had erred, both in fact and in law, when he failed to consider that there were material discrepancies in the evidence of SP6 and SP12.

The Appellants highlighted the discrepancies in the evidence of SP6 and SP12 as follows.

SP6 testified that he was having several cans of Kingfisher beer with the deceased on the night of the incident. He was sitting on his motorcycle while the deceased stood near him, holding the handle. Suddenly, the blue Proton Iswara arrived. SP6 identified both the Appellants who came out from the car. SP6 claimed to have seen the Appellants carrying sharp objects, which he described as "parang" and "pisau" (knife). Then he saw the 2nd Appellant slashing the deceased on his back while the 1st Appellant stood near the car. The deceased then ran towards the plantation, and both the Appellants gave chase.

On the other hand, SP12 gave evidence that at the material time, he was in front of his relative's house, which was next to the deceased's house. SP12 stated that while he was at the gate, he saw the blue Proton Iswara stop by, and the Appellants, whom he knew, came out from the car. He then saw the $ 1^{\mathrm{st}} $ Appellant slashing the deceased on his back. He did not see the $ 2^{\mathrm{nd}} $ Appellant carrying any weapons on him. SP12 claimed to have seen both the Appellants chasing the deceased into the plantation.

The learned JC was aware of these discrepancies as the Appellants had raised the same issue during the trial below.

In addressing this issue, the learned JC first analysed the demeanour of SP6 and SP12 while giving evidence. This is the audiovisual advantage the learned JC had as the trial judge, which this Court did not have. After carefully analysing their demeanours, the learned JC found that SP6 and SP12 were truthful witnesses, despite the discrepancies in their evidence.

The learned JC recorded the reasons for his findings in the grounds of judgment, which is reproduced below:

This Court carefully examined the demeanour of both witnesses. It is a finding of this Court that both the witnesses were familiar with each other and recognised the accused persons. They grew up in the same neighbourhood and were acquaintances. It is commonly accepted that recognition is more reliable than identification. It was no surprise that both the witnesses could positively identify the accused persons at the Identification Parade.

When SP6 testified, he was a nervous witness. This was to be expected given the solemness of the occasion. Furthermore, the deceased was his friend and the accused persons were also known to him. It was daunting enough an experience for him or for any one in his position. However, he was fluent in his narration of the events especially the sequence of events that transpired that night. He was firm that the two (2) accused persons carried weapons that fateful night. He was not shaken during the challenge by counsel.

After OKT2 was charged, counsel for OKT2 requested SP6 to be recalled for cross examination. This was done on 30.5.2019 after a lapse of almost eight (8) months since he last appeared in Court on 24.9.2018. Despite the long lapse of time, he was consistent with his story. He appeared nervous nevertheless and was unsure why he had to be recalled. This was an acid test of his credibility. He nevertheless, passed it.

SP12 on the other hand, was the elder brother of SP6. He too was a nervous witness and his demeanour in Court was similar to his brother SP6. They were in the same dilemma of knowing both the deceased and the accused persons. SP12 was also firm in his rendition of the events that took place that night. He was firm in testifying that he saw OKT1 attack the deceased before chasing the deceased into the plantation."

The learned JC went on to say:

Discrepancies there will always be, especially when the rendition of evidence is one that involves the recollection of sudden and abrupt events. The considerations that a court must take into account when assessing the testimony of a witness is never finite. Examples include location of the incident, the distance a witness is from the impugned act, the age, the strength and frailty of a witness to name a few, must all be factored in. In cases where events occurred several years before the trial commenced, consideration must be made on the ability of witnesses to recall as some witnesses can recall events better than others. Failure to do so should not automatically render the witness unreliable.

It is trite that discrepancies in a witness testimony does not right away make him an unreliable witness and make the whole of his evidence unacceptable (see Mohamed Alias v. PP [1981] 1 LNS 200; [1983] 2 MLJ 172; Chean Siong Guat v. PP [1969] 1 LNS 23; [1969] 2 MLJ 63; PP v. Dato' Harun Idris [1979] 1 MLJ 15).

From the assessment of this Court, the witnesses were narrating what they saw. This was evident from their steadfastness in narrating the events that transpired that night. This was despite the fact that they were questioned repeatedly by counsel for both accused persons. There was no reason to label them as unreliable. The credibility of the two (2) witnesses were intact. This Court finds no reason to reject their testimony."

The approach taken by the learned JC was consistent with long-established authorities such as PP v. Datuk Harun Haji Idris & Ors [1976] 1 LNS 184 (FC), Puganeswaran Ganesan & Ors v. PP & Other Appeals [2020] 9 CLJ 326 (FC), Chean Siong Guat v. PP [1969] 2 MLJ 63 (HC) and Pie bin Chin v. PP [1985] 1 MLJ 234 (HC).

Secondly, the learned JC had also considered whether the discrepancies in their evidence were material to strike at the very root of the charge. This is also in line with what has been established by the Federal Court through His Lordship Raus Sharif PCA (as he then was) in Ong Teng For & Anor v. PP [2013] 1 CLJ 39, who cited the case of Andy Bagindah v. PP [2000] 3 CLJ 289 with approval as follows:

It is settled law that the credibility of a particular witness and the weight to be given to his other evidence is manifestly within the province of a trial judge. In Andy Bagindah v. PP [2000] 3 CLJ 289, Shaik Daud JCA said that: There is no dearth of authorities to say that in every case, there are bound to be contradictions and discrepancies. The question to be decided by the trial judge is whether those contradictions and/or discrepancies are material ones so as to strike at the very root of the charge. It is for the trial judge to consider this since he was the one who saw and heard the evidence. In the present case the learned judge concluded that there were discrepancies but those discrepancies were not material ones. Since this involved the credibility of witnesses, we held that the learned judge was a better person to decide and an appellate court ought not to interfere with such findings.

Further, in PP v. Datuk Harun Haji Idris & Ors [1976] 1 LNS 184, Raja Azlan Shah FJ (as His Royal Highness then was) said: In my opinion discrepancies there will always be, because in the circumstances in which the events happened, every witness 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 scrutinized each evidence very carefully as this involves the question of weight to be given to certain evidence in a particular circumstances.

In the final determination of issues, it is incumbent on the trial court to decide, having regard to the probabilities of the case and based on contemporaneous facts and documents, whether the witnesses or set of witnesses are speaking the truth on matters of central importance."

In the present case, the learned JC found that the discrepancies in the evidence of SP6 and SP12 were not material. The learned JC stated that regardless of the contradictory narration of events, he had accepted the crucial evidence by SP6 and SP12, which remained consistent, that the deceased was confronted by the Appellants and as a result of their actions, the deceased tried to save himself by running into the plantation while the Appellants gave chase. The following can be seen in the learned JC's grounds of judgment:

It is the finding of this Court that the discrepancy of the evidence between SP6 and SP12 did not affect the prosecution case. The discrepancy relates to the incident which was a precursor to the murder of the deceased. The narration of events albeit contradictory, did point the important fact that the deceased was confronted by the two (2) accused persons. As a result of the acts of the two (2) accused persons, the deceased tried to save himself by running into the plantation.

Even if this Court were to disregard who slashed the deceased, it does not alter the fact that the deceased ran into the plantation with the two (2) accused persons in pursuit of him."

In a nutshell, the learned JC was well aware of the discrepancies in the evidence of SP6 and SP12. Yet, for the above reasons, he found that the discrepancies were not material and that SP6 and SP12 were truthful witnesses. The learned JC had also accepted the crucial part of their evidence which was consistent and remained unchallenged.

This approach is consistent with what has been decided by the Federal Court in Lee Ah Seng & Anor v. PP [2007] 5 CLJ 1, as can be seen in the following words:

The approach to be taken by an appellate court when dealing with a trial court's assessment of credibility of witness is well-established by high authorities. The credibility of a witness is primarily for the trial judge. An appellate court should always be slow in disturbing such finding of fact arrived at by the judge who had audio-visual advantage of the witness, unless there are substantial and compelling reasons for disagreeing with the finding. Discrepancies will always be found in the evidence of a witness but what a judge has to determine is whether they are minor or material discrepancies. It would be wrong to say just because a witness may have contradicted in his evidence or even told lies on one or two points, his evidence should be totally rejected. In the final analysis it is for the trial judge to determine which part of the evidence of a witness he is to accept and which to reject (see Herchun Singh & Ors v. Public Prosecutor [1969] 1 LNS 52; [1969] 2 MLJ 209 FC; Dato' Mokhtar Hashim & Anor v. Public Prosecutor [1983] 2 CLJ 10; [1983] CLJ (Rep) 101 FC; Lai Kim Hon & Ors v. Public Prosecutor [1980] 1 LNS 197; [1981] 1 MLJ 84 FC; Che Omar bin Mohd Akhir v. Public Prosecutor [1999] 2 CLJ 780 CA). It is not the function of an appellate court to make primary findings of facts (see Public Prosecutor v. Mohd Radzi Abu Bakar [2005] 6 MLJ 393; [2005] 6 AMR 203; [2006] 1 CLJ 457 FC).

Thus, applying the above principles to the facts of this case, it is clear that the learned judicial commissioner was alive to the fact that there were contradictions and discrepancies in the evidence of SP7 and nevertheless held that SP7 was a witness of truth. He ruled that the discrepancies were insufficient to destroy SP7's credibility on the issue of identification...”

We, therefore, conclude that the challenge mounted by the Appellants against the credibility of SP6 and SP12 is without merit. In our judgment, the credibility of SP6's and SP12's evidence was decided wholly on the facts and the prevailing circumstances of the case by the learned JC, who had the audio-visual advantage reserved for the trial court. We have no reason to disagree with the learned JC's findings on SP6 and SP12's credibility. We also see no reason to disturb the findings of fact arrived by the learned JC that the discrepancies in their evidence were not material and were insufficient to affect their credibility.

On this issue, the Appellants submitted that the learned JC erred both in fact and in law when he failed to draw an adverse inference against the prosecution for their failure to produce Chi Chi and Omar/Murugan as a witness.

First and foremost, s. 114(g) of the Evidence Act 1950 reads: "Section 114. Court may presume existence of certain fact. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume: ... (g) that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it."

Concerning the application of s. 114(g) of the EA 1950, we are primarily guided by the decision of the Supreme Court in Munusamy Vengadasalam v. PP [1987] 1 CLJ 250; [1987] CLJ (Rep) 221; [1987] 1 MLJ 492, where His Lordship Mohd Azmi SCJ (as he then was) in delivering the judgment of the court held: "It is essential to appreciate the scope of s. 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for nonproduction of not just any witness but an important and material witness to the case."

His Lordship Hasan Lah FCJ (as he then was) in delivering the judgment of the Federal Court in Amri Ibrahim v. PP [2017] 1 CLJ 617 held as follows: "[56] The issue of the non-calling of Phee Chin Guan was argued before the Court of Appeal by the defence. The Court of Appeal held inter alia that Phee Chin Guan was not an essential or material witness to the prosecution in order to establish a prima facie case at the close of its case or to prove its case beyond reasonable doubt at the end of the defence case and the non-calling of Phee Chin Guan did not leave a gap in the prosecution's case. It was also held that on the facts of the case, the learned trial judge did not err in not invoking s. 114(g) of the Evidence Act 1950 against the prosecution.

The power of the court to draw an adverse inference under s. 114(g) of the Evidence Act 1950 is discretionary. It depends on the circumstances of the case and particularly in cases where the material witnesses are not produced (see Lau Song Seng v. PP [1998] 1 SLR 663]. The scope of s. 114(g) has been explained by the Supreme Court in Munusamy Vengadasalam v. PP [1987] 1 CLJ 250; [1987] CLJ (Rep) 221 at p. 223; [1987] 1 MLJ 492 at p. 494: ... It is essential to appreciate the scope of section 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case.

On the facts of the case we agree with the finding of the Court of Appeal that adverse inference under s. 114(g) of the Evidence Act ought not to be drawn against the prosecution for not calling Phee Chin Guan as its witness. We agree with the reasons given by the Court of Appeal."

In the present case, we agree with the learned JC that Chi Chi and Murugan/Omar were not essential or material witnesses for the prosecution to establish their case against the Appellants. The prosecution had already called two eyewitnesses who had testified on what have transpired on the night in question. SP6 was the nearest person to the deceased, and SP12 was standing outside his relative's house next to the deceased's house. Therefore, the non-calling of Chi Chi and Murugan/Omar did not leave any gap in the prosecution's case. There was also no evidence to suggest that the prosecution had suppressed or withheld Chi Chi's and Murugan/Omar's evidence from the defence.

Therefore, we agree with the learned JC that on the facts of this case, adverse inference under s. 114(g) of the Evidence Act 1950 should not be drawn against the prosecution. Hence, we found this issue to be devoid of merits.

At the outset, it is pertinent to note that the prosecution's case against the Appellants is substantially based on circumstantial evidence. No eyewitnesses saw who inflicted the fatal injury to the deceased, leading to his death.

His Lordship Thomson CJ (as he then was) in Chan Chwee Kong v. Public Prosecutor [1962] 1 LNS 22; [1962] MLJ 307 (CA) had succinctly explained the principles applicable in cases where the evidence was entirely circumstantial in the following words: "In the first place we have listened to a careful, accurate and detailed analysis of the evidence against the appellant. That evidence was entirely circumstantial and what the criticism of it amounts to is this, that no single piece of that evidence is strong enough to sustain the convictions. That is very true. It must, however, be borne in mind that in cases like this where the evidence is wholly circumstantial what has to be considered is not only the strength of each individual strand of evidence but also the combined strength of these strands when twisted together to make a rope. The real question is: is that rope strong enough to hang the prisoner?"

The passage was cited with approval by the Federal Court in Krishna Rao Gurumurthi v. PP and Another Appeal [2009] 2 CLJ 603 (FC), Parlan Dadeh v. PP [2009] 1 CLJ 717 (FC), Magendran Mohan v. PP [2011] 1 CLJ 805 (FC), and PP v. Jitweer Singh Ojagar Singh [2014] 1 CLJ 433 (FC).

His Lordship Ong Hock Thye FCJ (as he then was) in Karam Singh v. Public Prosecutor [1967] 1 LNS 65; [1967] 2 MLJ 25 (FC) held as follows: "... In a case where the prosecution relies on circumstantial evidence, such evidence must be inconsistent with any other hypothesis than that of the guilt of the accused... (See also: Muniandy & Anor v. PP [1973] 1 LNS 92; [1973] 1 MLJ 179, Kamis v. PP [1974] 1 LNS 59; [1975] 1 MLJ 461, Lim Foo Yong v. PP [1976] 1 LNS 62; [1976] 2 MLJ 259 and Dato' Mokhtar bin Hashim & Anor v. PP [1983] CLJ 101 (Rep); [1983] 2 CLJ 10; [1983] 2 MLJ 232."

Similarly, in Jayaraman & Ors v. PP [1981] 1 LNS 129; [1982] 2 MLJ 273 (FC), His Lordship Syed Othman FCJ (as he then was) held: "I am well aware that the 'irresistible' formula has been used by the courts here in dealing with circumstantial evidence. But I would like to refer here to Me Greevy v. Director of Public Prosecution where it was argued at page 279, before the House of Lords that in criminal trial in which the prosecution case, or any essential ingredient thereof, depends, as to the commission of the act, entirely on circumstantial evidence, it is the duty of the trial judge, in addition to giving the usual direction that the prosecution must prove the case beyond reasonable doubt, to explain to the jury in terms appropriate to the case being tried that this direction means that they must not convict on circumstantial evidence unless they are satisfied that the facts proved are (a) consistent with the guilt of the accused and (b) exclude every reasonable explanation other than the guilt of the accused."

In the present case, other than the issue of SP6 and SP12's credibility and the non-invocation of an adverse inference against the prosecution, which has already been discussed above, the Appellants submitted that the investigating officer had conducted a shoddy investigation since the blue Proton Iswara and the murder weapon were never recovered by the police. As a result, the Appellants submitted that the circumstantial evidence led by the prosecution was insufficient to sustain their conviction.

However, we disagree with the Appellants for the following reasons.

Firstly, SP6 and SP12 confirmed that the Appellants used sharp weapons, such as parang or knife, when they attacked the deceased from behind. This is consistent with the marks of injury noted by the Consultant Pathologist, SP15, when he conducted the post-mortem on the deceased's body. The Appellants were also seen to have pursued the deceased into the plantation while still holding the weapon.

Therefore, we disagree with the Appellants that the non-recovery of the murder weapon had any effect on the prosecution's case. We agree with His Lordship Abdul Rahman Sebli J (now CJ Sabah & Sarawak) in PP v. Andal Arolla [2012] 7 CLJ 77, who opined as follows: "The murder weapon was never recovered but this should not affect the prosecution's case. The evidence is incontrovertible that a knife was used in the attack and this is amply corroborated by independent forensic evidence. The accused was accordingly called upon to state his defence to the charge."

In the present case, the circumstantial evidence adduced by the prosecution showed that: a. while SP6 was drinking beer with the deceased at his house, a blue Proton Iswara arrived, and both the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Appellants were identified to have come out from the car; b. the $ 1^{\mathrm{s t}} $ and $ 2^{\mathrm{n d}} $ Appellants were seen attacking the deceased from behind by using sharp weapons such as parang or knife; c. this is consistent with the evidence of the Consultant Pathologist, SP15, who confirmed that the deceased sustained injuries to the left shoulder, neck and back predominantly from sharp object or weapon; d. however, the deceased did not die from those injuries; e. according to SP15, the stab wound to the deceased's epigastrium from the front to the back, which penetrated the deceased's heart, was fatal in nature and had caused the deceased's death; f. there was no evidence to suggest that the fatal injury was inflicted before the relevant eyewitnesses; g. after being slashed from behind, the deceased ran towards the plantation. The Appellants were seen pursuing the deceased into the plantation while still holding the weapon; h. after a few minutes, the Appellants came out from the plantation and left in the same car that they arrived with; i. the deceased never came out from the plantation; j. SP6 then went to look for the deceased and shouted his name, but there was no answer, and he could not find the deceased; k. SP6 went to the police station and went back to the scene to look for the deceased, but to no avail since the area was dark; and I. The deceased was found the following morning by SP3 inside the plantation.

In our view, all of the circumstantial evidence adduced by the prosecution above pointed to the irresistible conclusion that the Appellants were the ones who had inflicted the fatal injury to the deceased, causing his death. Based on the evidence, we do not see any other possible explanation other than the Appellants' guilt.

It can also be inferred from the circumstances of the case and the conduct of the Appellants mentioned above that the criminal act of murder was done in furtherance of their common intention, regardless of who amongst the $ 1^{\mathrm{st}} $ or $ 2^{\mathrm{nd}} $ Appellant had delivered the fatal injury to the deceased. Therefore, liability for the crime may be imposed on any one of the Appellants in the same manner as if the act were done by him alone.

We are guided by the Federal Court in Farose Tamure Mohamad Khan v. PP & Other Appeals [2016] 9 CLJ 769 (FC), where the generally accepted principles on the operation of s. 34 of the Penal Code was outlined as follows:

At this juncture, it is convenient first to address the generally accepted principles of the operation of s.34. The position in respect of these elements is fairly uncontroversial, and the relevant principles gleaned from the authorities in Malaysia, Singapore and India can be briefly dealt with.

It is widely acknowledged that s. 34 is a rule of evidence which embodies the common sense principle that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually (Krishna Rao Gurumurthi v. PP & Anor Appeal [2009] 2 CLJ 603; [2009] 3 MLJ 643).

If it is shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all, liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone (Mahbub Shah v. Emperor [1945] 2 MLJ 144).

The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. (Hari Ram v. State of Uttar Pradesh [2004] 8 SCC 146). In those circumstances, the law makes no distinction between them or between the parts played by them in doing the criminal act (Bashir v. State AIR 1953 All 668).

Presence is not necessary to constitute participation in every case. It is sufficient for the accused to have done an act with some nexus to the offence (Sabarudin Non v. PP & Other Appeals [2005] 1 CLJ 466; [2005] 4 MLJ 37 and Manikumar Sinnappan & Ors v. PP [2017] 3 CLJ 505; [2015] 1 LNS 1344; [2016] 2 MLRA 1).

Common intention, distinguished from the same or similar intention, requires proof that the criminal act was done in pursuance of a pre-arranged plan (Mahbub Shah (supra)). Such pre-planning may develop on the spot or in the course of the commission of an offence, the crucial test being the plan must precede the commission of the offence (Namasiyiam Doraisamy v. PP & Other Cases [1987] 1 CLJ 540; [1987] CLJ (Rep) 241; [1987] 2 MLJ 336).

A common intention may often be difficult to prove by way of direct evidence in practice, but it can be inferred from the circumstances of the case and the conduct of the accused (Dato' Mokhtar Hashim & Anor v. PP [1983] 2 CLJ 10; [1983] CLJ (Rep) 101; [1983] 2 MLJ 232).”

For the reasons mentioned above, we conclude that the overall circumstantial evidence adduced by the prosecution points to the only irresistible conclusion that the Appellants had committed the offence as per the charge. We found no merit in the Appellants' submission on this issue.

In conclusion, after carefully perusing the appeal records and hearing all parties' submissions, we have unanimously decided that the learned JC committed no misdirection in his decision. We also found that the learned JC did not err in fact and law in arriving at the said decision, and we see no reason to disturb the same. We are also of the view that the conviction against the Appellants is safe. Accordingly, the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Appellants' appeals are dismissed, and the learned JC's decision is hereby affirmed. Dated: Solicitors For The 1 $ ^{1 \mathrm{st}} $ Appellant: Hafizuddin Salehuddin & Afifuddin bin Ahmad Hafifi Tetuan Salehuddin Saidin 14, Jalan Tengku Ampuan Zabedah A 9/A Seksyen 9 40100 Shah Alam Selangor Solicitors For The 2 $ ^{n d} $ Appellant: Ayasamy a/l Velu & Mohamad Naim bin Kamaruddin V. Samy Renu & Co. No. 22 & 22A, Jalan Bagor Taman Petaling 41200 Klang Selangor Solicitor For The Respondent: Zaki Asyraf bin Zubir Timbalan Pendakwa Raya Jabatan Peguam Negara 45, Persiaran Perdana, Presint 4 62100 Putrajaya Wilayah Persekutuan Putrajaya