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1 IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. S-05(H)-438-10/2019 BETWEEN SAJID BAIRULA … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In the High Court in Sabah and Sarawak at Sandakan Criminal Case No. SDK-45B-4/8-2017 Between Public Prosecutor And Sajid Bairula CORAM: NOR BEE BINTI ARIFFIN, JCA RAVINTHRAN PARAMAGURU, JCA HAJI GHAZALI BIN HAJI CHA, JCA 23/08/2022 09:23:47 S-05(H)-438-10/2019 Kand. 39 JUDGMENT Introduction [1] The appellant was charged with the murder of a 14-year old boy. For ease of reference we reproduce the charge below: “That you, on the 30th day of January 2017, at about 2.30 pm, at the Rumah Kongsi pekerja, Ladang Masih Jaya, Sugut, in the District of Beluran, in the State of Sabah, did commit murder by causing death of one Aswar Luwing (Male/14 years old, Indonesian Bugis) and that you have thereby committed an offence punishable under Section 302 of the Penal Code (Act 574) of the Laws of Malaysia.” [2] The learned Judicial Commissioner convicted and sentenced the appellant to death at the conclusion of the trial and hence this appeal. Case for the Prosecution [3] The evidence led by the prosecution may be summarized as follows. The appellant and one Hapsah bin Usman (PW10) were neighbours in the Ladang Masih Jaya plantation quarters (Rumah Kongsi) in Sugut in the District of Beluran. Hapsah lived in Unit 3 with her two sons i.e. Aswar bin Luwing who is the murder victim and Sabri bin Luwing. The appellant lived in Unit 1. [4] Hapsah gave direct eyewitness testimony about the death of Aswar. On the day in question, she went to her quarters at 12.30 p.m. to rest. She cooked lunch around 1.30 p.m. She and her two sons finished eating lunch around 2 p.m. After that, she and Sabri slept inside her bedroom whereas Aswar slept outside. Sometime later, she was roused from sleep by noises that came from outside the bedroom. She went outside the bedroom and saw the appellant stabbing Aswar. She shouted for help but none was forthcoming. She then ran out to a nearby Rumah Kongsi at the bottom of the hill. There, she met two workers; one of whom was called Rusli. She told them about what had happened. After that, on the instruction of one of the mandors (supervisors), a group of workers apprehended the appellant and tied him up. The Human Resource Officer of the plantation by the name of Marratul Binti Pakan who is also known as Puan Mira (PW2) was notified about the incident. She called the police immediately. [5] PW7 (Insp Mohd Izwan bin Kamarudin), the arresting officer, told the court that he arrived at the remote plantation only at midnight. He spoke to the appellant who had been tied up and guarded by the other workers. The appellant told him that the knife used in the attack was left in the living room. The workers at the scene told PW7 that one of the workers by the name of Azhar found a knife in the living room and threw it outside for fear that the appellant may break loose and attempt to use it. The said knife which is known as a Bugis knife was recovered by the police the next day some distance away. No blood stains were found on the knife for forensic analysis to be carried out as it rained the previous night. The prosecution did not manage to call Azhar who is a foreigner as a witness either. Thus, the case for the prosecution largely rested on the eyewitness testimony of Hapsah. The Defence [6] At the conclusion of the prosecution’s case, the learned Judicial Commissioner found that the prosecution had established a prima facie case and called for the defence. The appellant was the only witness for the defence. He gave sworn testimony. The appellant told the court that he was resting in his quarters after lunch on the day in question when one Icak who carried a parang asked for a cigarette. After the appellant gave him a cigarette, Icak punched him. Other workers who entered his quarters joined in the attack until he became unconscious. When the appellant came to, he realized that he had been tied up. He denied killing Aswar on the day in question. He said that he admitted killing Aswar to the police on the day in question because he was afraid of being beaten. That was all he said in his defence. Decision of High Court [7] The learned Judicial Commissioner found that the defence of the appellant was a bare denial which did not raise a reasonable doubt on the case for the prosecution. In coming to this conclusion, His Lordship considered the following evidence. Hapsah said that she was awakened by some noise coming from outside her bedroom. When she stepped outside, she saw the appellant stabbing her son in the back once or twice in the living room. The autopsy report showed eight stab wounds. The fatal wound was inflicted on the back of the neck. The learned Judicial Commissioner noted that Hapsah recognised the appellant because he was a neighbour. His Lordship found Hapsah to be a credible witness and accepted her evidence. Citing the case of DA Duncan v Public Prosecutor [1980] 1 LNS 12, he also found that the defence of the appellant was bare denial without any evidence to support it. Our Decision [8] Counsel for the appellant argued the learned Judicial Commissioner failed to address a number of discrepancies and gaps in the evidence of the prosecution. The main grounds of appeal relate to the time of murder, the murder weapon, the absence of blood stains on the weapon and clothes of the appellant and alleged inconsistencies in the testimony of the sole eyewitness to the murder. We shall consider these and other grounds of appeal below. Time [9] The charge states that the murder occurred at about 2.30 p.m. on the day in question. Counsel for the appellant submitted that there are inconsistencies in respect of the time of the murder and therefore it was not possible for the star witness (Hapsah) to have witnessed it. The Human Resource officer (P.W. 2) said that she received a call from one of her mandors (Muhtar bin Mappiare PW6) at 4 p.m. about the incident. Sakaria Dominkus Samuel (PW 3) said that he heard about the incident from one of the workers by the name of Rusli at about 3 p.m. He told PW6 about it. At one point in her testimony, the star witness, Hapsah, agreed to the suggestion during cross-examination that she woke up at 3.30 p.m. when she heard a scream. Counsel for the appellant submitted that there was a doubt as to the time of the murder and therefore the prosecution had failed to prove its case beyond reasonable doubt. [10] The learned Judicial Commissioner dealt with the time discrepancy issue in the following manner. His Lordship noted that although the charge says that the murder was committed at about 2.30 p.m., Hapsah said that she went to sleep after performing her Zohor prayers which is her reference point as to time. We take judicial notice that Muslim prayer times are not at any precise time but at fixed interval periods. Thus, the learned Judicial Commissioner correctly noted that Hapsah only gave “a rough estimated time” based on the fact that she prayed in the afternoon after eating her lunch. His Lordship said as follows: Scrutinizing her evidence that “after we finished eating and after prayer, I slept with my younger son. After that I heard noises, I came out and saw my son was killed by Sajid.” (NOP, page 101, lines 5 – 6) and “kerana betul saya masuk tidur setelah habis sembahyang zohor” (NOP, page 122, line 17) it can be seen that she would have been only be able to give a rough estimated time, with the zohor prayer time as a reference point. [11] Thus, the argument of counsel for the appellant that Hapsah could not have witnessed the murder at 2.30 p.m. if she heard the sound of screams at 3.30 p.m. is without merit as the witness never said that she looked at the clock to determine the time of any event on that fateful afternoon. What is clear from the evidence led by the witnesses is that the murder occurred between lunch time and about 3.30 p.m. when Hapsah sought help from the workers in a neighbouring Rumah Kongsi. [12] We have taken note that time of murder stated in the charge is “about 2.30 p.m.” and it was not amended. However, we find that it is of no consequence and does not demolish the case of the prosecution against the appellant. In R v Severo Dossi (1918) 12 Cr App R 158 159, Atkin J said as follows: "From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence." [13] Since the case of Law Kiat Lang v PP [1966] 1 MLJ 215 which was decided by the former Federal Court, the above-mentioned principle has been consistently followed in our courts. In the above-mentioned case, the dates in the charges were not amended. Citing the case of R v Severo Dossi (supra), Thomson LP said as follows: With regard to the first of these charges, the dates are wrong and the charge was at no time amended. This in itself, however, is without importance. [14] We caution ourselves that any serious inconsistency as to time which would render implausible the commission of the crime by the appellant, would prevent the application of the principle. However, as we said earlier, given the fact that Hapsah only gave an approximate time of the events that preceded the death of her son, the date in the charge is not material and does not suggest that the appellant could not have committed the crime in question. Murder weapon [15] Counsel for the appellant submitted that there is a doubt as to the murder weapon as the police seized two knives; a dark handled Bugis knife (P8A) and a blue handled knife (P20A). The Bugis knife was recovered by the arresting officer (PW 7) in the vicinity of another Rumah Kongsi at the foothill. One of the workers (Azhar) told him that he threw the knife there. PW7 lodged a police report after recovering the knife. He did not prepare a search list. The blue handled knife (P20A) was handed to him by the Human Resource Officer (P.W. 2) who had come earlier to the crime scene. [16] However, the prosecution tendered evidence through the pathologist and the eyewitness (Hapsah) that a Bugis knife like the one recovered by the arresting officer was the murder weapon. The pathologist said as follows: “This knife has sharp tip, one sharp edge and one blunt edge. These are consistent with what I have stated earlier regarding the profile of the sharp object that would fit with the appearance of the stab wounds on the deceased. The maximum width of this blade is two centimetres, the seven out of the eight stab wounds measured two centimetres long, which are consistent with the maximum width of this knife. One of the stab wounds on the deceased's abdomen is slightly longer, at 2.5 cm long. The size could have been extended when the knife moved while inside the abdomen causing the wound to be bigger than the other seven stab wounds.” [17] As for Hapsah, she confidently said that the Bugis knife was the knife used by the appellant. Counsel for the appellant submitted that the Hapsah was “inconsistent and doubtful” about the weapon that the appellant used to stab the victim. We find that there is no merit in this submission. Contrary to the submission of counsel for the appellant, the learned Judicial Commissioner correctly noted that Hapsah was consistent in her court testimony that the appellant used a Bugis knife. Furthermore, she positively identified a Bugis knife that was recovered by the arresting officer (PW7) from the vicinity of a Rumah Kongsi at the bottom of the hill as the murder weapon. During evidence in chief, she said as follows about the type of murder weapon: Q: What kind of weapon did the accused use to stab Aswar? A: Bugis knife. [18] During cross-examination, Hapsah was challenged several times about the weapon used by the appellant to stab her son. She was firm and consistent in her answer that it was a Bugis knife. The evidence is as follows: Q: Sewaktu kamu katakan kamu nampak Sajid, tiada pisau yang ditunjukkan kepada kamu waktu itu? A: Ada, pisau Bugis…….. Q: Pada waktu itu kamu tidak pasti samada itu adalah pisau Bugis atau tidak kerana kamu hanya dapat memastikan pisau itu adalah pisau Bugis apabila orang estet datang tolong kamu? A: Tidak, sementara saya nampak dia pegang tikam begini (Shown to the Court). …….. Q: Pada waktu tersebut, kamu nampak Sajid macam memegang pisau atau parang? A: Tidak, hanya pisau Bugis. Q: Adakah kamu bersetuju dengan saya kamu pasti pisau itu adalah pisau Bugis lepas polis datang kasi pengesahan? A: Sebelumnya aku kenal, pisau itu dia pakai. (emphasis ours) [19] Counsel for the appellant submitted that no search list was tendered in respect of the Bugis knife. For this reason, she submitted that there is a break in the chain of evidence. We see no merit in this submission for the same reason as that given by the learned Judicial Commissioner. After PW7 recovered the knife the next day some distance outside the Rumah Kongsi, he lodged a police report and the knife was securely kept in his custody until it was sent to the Government Science Officer in a sealed packet. Likewise, it was returned to the police in a sealed packet after analysis at the Chemistry Department. [20] Counsel for the appellant also pointed out that forensic examination on the Bugis knife did not result in the discovery of any blood stains for DNA analysis. However, the arresting officer explained that the knife was discovered only the following morning and that it rained at night. For the above reason, there is no reason to conclude that the Bugis knife was not the weapon that was seen by Hapsah when she witnessed the stabbing of her son. [21] In respect of the discovery of the weapon, the arresting officer told the court that Azhar said that he found the weapon in the living room where the victim was stabbed. We are mindful that the evidence is hearsay as the prosecution did not manage to call Azhar as a witness. We are also mindful that what the appellant told the arresting officer about the knife that he used is not admissible because the appellant was under arrest. Furthermore, section 27 of the Evidence Act 1950 cannot apply as the knife was not discovered pursuant to the information given to PW7 by the appellant. However, the crucial eyewitness evidence of Hapsah about the type of knife used by the appellant was not successfully challenged as found by the learned Judicial Commissioner. In any event, proving the exact weapon is not the essential ingredient that needs to be proved in a murder trial. All that the prosecution needs to prove is whether an accused person caused the death of the victim and whether that act falls within the ambit of section 300 of the Penal Code in order to constitute the offence of murder. For the above reasons, we find no merit in respect of the submissions pertaining to the murder weapon. Whether two versions given by Hapsah? [22] Counsel for the appellant submitted that Hapsah had contradicted herself by giving two versions of the incident that she witnessed. During examination in chief, she said that she ran to the Rumah Kongsi at the bottom of the hill after saw the appellant stab her son. During cross-examination, she said that after witnessed the stabbing, she ran back to her own room in a state of panic and emerged only when the appellant was no longer in the living room. The learned Judicial Commissioner found no material contradiction in Hapsah’s evidence. His Lordship dealt with it in the following passage: PW10 came out of her bedroom twice, not just once. On the first occasion, when she heard noises or “suara teriak” and saw the Accused stabbing her son Aswar. She then went back into her bedroom and asked her other son Sabri not to go out. On the second occasion, she got out of her bedroom to seek help at the rumah kongsi at the foot of the hill, and Aswar was dead by the time the plantation personnel arrived at her home. [23] We do not see any material contradiction either in the evidence of Hapsah. She witnessed a shocking event. She was awakened from her sleep only to see her son being stabbed. She was certain that she took her younger child and ran away to seek help as she thought that her older son had died. Therefore, her precise movements from the moment she woke up and fled the Rumah Kongsi to seek help cannot be material. Hapsah was consistent in her evidence that she saw the appellant stabbing her son once or twice in the back. That is why during cross-examination she maintained that all that she said in court was true: Q: Peguambela cakap kamu hanya keluar setelah keadaan selamat? A: Ya, setelah tiada si Sajid, saya keluar dari bilik dan turun ke bawah minta tolong. Q: Tadi kamu beritahu Mahkamah kamu hanya keluar bilik bila kamu mendengar Aswar kena tikam dan kemudian juga kamu memberitahu Mahkamah kamu hanya keluar dari bilik setelah keadaan selamat, yang mana satu betul? A: Semuanya. [24] The pathologist confirmed that several stab wounds were found on the back of the victim including the fatal wound at the back of the neck. Even the fact that Hapsah did not mention the sleeping position of the victim was raised as an issue by counsel for the appellant. She submitted that if the victim lied on his back, he would have been stabbed in the stomach. But the pathologist found eight stab wounds on the victim. Save for two stab wounds on the front of the abdomen, the rest were inflicted on the back. This is consistent with the evidence of Hapsah that upon waking up she saw the appellant stabbing her son at the back. The Judicial Commissioner noted Hapsah was candid in that she did not embellish any details. She remembered the appellant stabbing the victim once or twice. As for identity of the assailant, the learned Judicial Commissioner found that Hapsah recognised the appellant as he was a neighbour in the Rumah Kongsi and according to the mandors and the Human Resource Officer, he had been working in the plantation for about three months. Furthermore, as found by the learned Judicial Commissioner, Hapsah was a credible witness who was not shaken during the lengthy cross-examination about stabbing of her son by the appellant. In the premises, any issue in respect of the lack of exact details about her movement or her description of the act of stabbing is not material and was correctly discounted by the learned Judicial Commissioner who said as follows: Contrary to the submission that PW10’s testimony was inconsistent or ought to be doubted, PW10 testified in a simple and matter-of-factly manner. She was unshaken when under cross-examination. She did not, to borrow the words of Lee Heng Cheong J in PP v. Joseph Madang [2016] 1 LNS 358 “embellish evidence, a common characteristic among dishonest witnesses”. It is very unlikely that she could be mistaken in her identification evidence of the Accused as the person who stabbed her son. The Accused was not a stranger to her. He was her neighbour in the same workers’ quarters provided by the company. PW10 had known him for about 3 months. She had unwaveringly testified that she had seen the Accused in the act of stabbing her son for about 1 minute. See NOP, page 106, lines 1 – 2. She positively identified the murder weapon, the Bugis knife marked as exhibit ‘P8A’. [25] Counsel for the appellant submitted that Hapsah contradicted herself because during examination in chief she said that the appellant did not see her but that during cross-examination she said that the appellant saw her. This point was not addressed by the learned Judicial Commissioner but we see no material contradiction in the evidence of Hapsah. During examination in chief Hapsah only told the court about what she witnessed. She did not say whether the appellant saw her or not. It was counsel for the appellant who suggested that the appellant had also seen her. Counsel for the appellant also submitted that if the appellant had seen her, he would also have attacked her. We find that submission to be speculative and irrelevant in any event. [26] In any case, it is natural that there would be discrepancies in the evidence of a witness, particularly one who witnessed a traumatic event. So long as the discrepancies are minor and do not render the version of the witness improbable, there is no reason to totally reject the evidence of the said witness. In the well-known case of Public Prosecutor v Datuk Haji Harun bin Idris (No.2) [1977] 1 MLJ 15 which was cited by the learned Deputy Public Prosecutor, Raja Azlan Shah FJ (as HRH then was) said as follows: In my opinion discrepancies there will always be, because in the circumstances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened. …. The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other. It is, therefore, necessary to scrutinize each evidence very carefully as this involves the question of weight to be given to certain evidence in particular circumstances. [27] However, based on the case of Abdul Rahim a/l Abdul Razak v Public Prosecutor [2015] 2 MLJ 835, counsel for the appellant submitted that an eyewitness to a hideous crime must remember the incident and could not be said to have forgotten gruesome facts easily. However, in that case, the court noted that there were “jarring inconsistencies” between the answers of the eyewitness during examination in chief and cross-examination. During the examination in chief, the eyewitness said that he witnessed the murder and helped the accused to dispose of the body of the victim. However, he could not remember the event during cross-examination. [28] In comparison, the inconsistencies in the evidence of Hapsah, if any, as we noted earlier are minor. They are certainly not on the scale of the jarring inconsistencies found in the above-mentioned case. The most crucial and relevant question in this case is whether Hapsah’s testimony that she saw the appellant stabbing her son was consistent and credible. This question was answered in the affirmative by the learned Judicial Commissioner who had audio visual advantage as the trial judge. In the premises, we see no merit in the argument that Hapsah’s evidence must be rejected on the ground that she had given two versions of the incident that she witnessed. Other issues [29] Counsel for the appellant argued that the circumstantial evidence exonerated her client. She said the blood of the victim was not found on the clothes of the appellant. The blood stains found on his clothes were his own as he was beaten by the workers who subdued and arrested him. She said that Hapsah told the court that the blood on the appellant’s shirt was from the victim. We find that this evidence of Hapsah does not affect her credibility. During examination in chief, Hapsah did not say that the blood of her son had spurted onto the clothes of the appellant. It was something suggested to Hapsah. She merely agreed to that suggestion which was made in the course of a lengthy cross-examination. We are also of the view that the fact that the blood stains of the victim were not found on the appellant does not necessarily exonerate him. There is no evidence that the victim put up a struggle that would result in his blood being transferred to the clothes of the assailant. In fact, Hapsah said that her 14-year old son was brutally stabbed when he was sleeping. [30] Counsel for the appellant also argued that it was not clear whether the fatal wound on the neck was inflicted by the appellant as the victim had been stabbed eight times and Hapsah said that saw the appellant stab him “once or twice” only. We find this submission to be completely unmeritorious. Hapsah told the court that she woke up from sleep because of noise. She described the noise as “teriak”. Upon going out of the room, she saw the appellant stabbing the victim “once or twice”. The fact that she was awakened by the “teriak” sound means that, for whatever reason, the appellant had already launched his brutal attack on her sleeping 14-year old son. Hapsah did not see anyone else in her living room that time apart from the appellant whom she recognised. In the premises, the irresistible inference is that all the stab wounds were inflicted by the appellant alone. The learned Judicial Commissioner dealt with this ground of appeal in the following manner and we agree with him: It was also submitted that “since the (sic) are several stab wounds on the deceased’s back, thus there is a doubt whether the Accused had stabbed the deceased on the back of the neck which had caused the death of the Accused”. See enclosure 77, paragraph 3.7 b. Although there were 3 stab wounds on the back of the deceased’s chest, 2 stab wounds on the back and 2 stab wounds on the front of the deceased’s abdomen, and 1 fatal stab wound on the back of the neck (see exhibit ‘P48’, the post mortem report), the defence did not put the case to any of the prosecution witnesses that the fatal stab wound was inflicted by someone other than the Accused. The evidence of PW10 only attributed the stabbing to the Accused and no one else. It should be added that the number and location of the stab wounds are testament to an intention to inflict bodily harm which, as will be clear from the medical evidence, was sufficient in the ordinary course of nature to cause death. [31] Hapsah said that after she sought help from the occupants of the Rumah Kongsi near the bottom of the hill, one Rusli brought the victim to that Rumah Kongsi to help him. But, when the police arrived at the scene, the victim was in Hapsah’s living room. Counsel for the appellant submitted that Rusli should have been called to explain the so-called inconsistency. We see no material gap in the narrative of Hapsah. The attack on the victim took place around 3 p.m. The police arrived only at midnight. Hapsah said that the victim was killed in her living room. Her evidence about the scene of crime was not challenged. Therefore, although Rusli was not called and evidence was not led about the re-transfer of the body of the victim back to Hapsah’s quarters, the gap is neither material nor relevant. [32] Lastly, contrary to the submission of counsel for the appellant, we find no error in the assessment of the defence of the appellant. Hapsah gave credible evidence that the appellant stabbed her son. The pathologist testified that the injuries, particularly the injury on the neck, was sufficient in the ordinary course of nature to cause death. As intention is a matter of inference, given the said injuries, the learned Judicial Commissioner correctly drew the inference that the appellant intended to cause death after citing section 300 of the Penal Code and the case of Sainal Abidin Mading v Public Prosecutor [1999] 4 CLJ 215. We agree with this finding of the learned Judicial Commissioner. The appellant would have known that stabbing the deceased with immense force with a sharp knife on the back of the body, especially the neck, is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. [33] As against the above evidence, the defence of the appellant was one of bare denial as found by the learned Judicial Commissioner. To recapitulate, the appellant only said that he was attacked by a group of men and had no knowledge about the attack on the victim. He denied killing the victim. It was not the case for the defence that Hapsah had reason to unjustly frame the appellant for a crime that he did not commit. The appellant agreed with the learned Deputy Public Prosecutor that Hapsah would have no reason to frame him. There was no suggestion of enmity between the appellant and Hapsah either. In fact, during examination in chief and cross-examination, he said that he had no quarrel with Hapsah or her deceased son. He only said that Hapsah was once possessed without elaborating. The learned Judicial Commissioner correctly directed himself that he must inquire whether the defence of the appellant raised a reasonable doubt on the case for the prosecution. His Lordship answered the question in the negative and having considered all the points raised by counsel for the appellant, we cannot say that we disagree. Conclusion [34] In conclusion, we observe that in the absence of forensic evidence, the case of the prosecution rested on the testimony of Hapsah who is the mother of the victim. Nonetheless, we find no reason to find fault with the assessment of her credibility by the learned Judicial Commissioner. Even upon reading the cold print evidence, we find that Hapsah had given consistent and clear evidence about the identity of the assailant and the stabbing of her son. In the premises, on the totality of the evidence, we find that the conviction recorded by the High Court is safe. We affirm the conviction and sentence pronounced by the High Court. The appeal is dismissed. SGD (RAVINTHRAN PARAMAGURU) Judge Court of Appeal Malaysia Putrajaya Dated: 11th August 2022 Parties Appearing: For The Appellant: Sharatha Masyaroh binti John Ridwan Lincon Ameer Asraaf Kairee bin Amin (Messrs. Lincon & Co) For The Respondent: DPP Samihah binti Rhazali Attorney General’s Chambers