Selvam A/l Batumalai v Pendakwa Raya (N-05(M)-473-10/2023)

The charge against the accused reads as follows: “ Bahawa kamu pada 2hb Oktober 2018, jam lebih kurang 1.20 petang, di alamat No. 1666, Jalan SJ 10/12, Taman Seremban Jaya, 70450 Seremban, di dalam negeri Negeri Sembilan, telah melakukan bunuh dengan menyebabkan kematian terhadap GUNAVATHY A/P KRESHNASAMY (No. K/P: 790713-14-6018). Oleh yang demikian kamu teleh melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan”

At the conclusion of the trial, the learned HCJ found the accused guilty and upon conviction sentenced him to death. B. THE PROSECUTION CASE [4] The background facts of the case can be gleaned from the learned HCJ’s grounds of judgement which can be summarised as follows:

On 2.10.2018 while on duty at the Operation Room, Seremban Police Headquarters, SP1 received an emergency call from an Indian man stating that his neighbour was found motionless in a pool of blood at a house no. 1666, Jalan SJ 10/12, Taman Seremban Jaya, Seremban (the said house). The Investigating Officer (IO) of the case, SP28 went to the said house and found one Indian lady (later identified as the deceased) lying face down with slash wounds on her face, neck and the body. The deceased was fully dressed in a blouse with a tight pants. The Police Forensic team was called and further examination of the deceased’s body by SP15 revealed slash wounds were found on the deceased’s neck, mouth and upper part of the chest. Cut wounds were found at the deceased’s eye brow and the left hand of the deceased. SP 15 had also taken blood swab and finger prints found at the scene of crime.

The accused was later arrested on 3.10.2018 at about 12.20 am by SP14 in room no 307, Royal Stars Hotel, Jalan Tuanku Antah, Seremban, Negeri Sembilan. From the accused SP 14 had seized a few items and two of them are: i. one receipt dated 2.10.2018 pertaining to the sale of jewelleries amounting to RM950.00 (exhibit P20); and ii. one Xiaomi brand handphone with a Maxis sim card (exhibit P9) and a black handphone cover (exhibit P9A).

Meanwhile, on 3.10.2018 at about 4.30 pm, in the course of police investigation, SP5 has seized one shirt worn by the accused (exhibit P13), one black short pants (exhibit P14) and a pair of slippers (exhibit P15).

On 4.10.2018, after being interviewed by the investigating team, the accused led a police party to SLR Jewellery, No 62, Jalan Dato Bandar Tunggal, 70000 Seremban where the police had seized jewelleries belonged to the deceased (exhibit P19A) which had been sold by the accused. The police also seized the receipt for the sale (exhibit P20) as well as a copy of the accused identity card (exhibit P21).

The post mortem conducted on the deceased revealed that the deceased suffered multiple injuries. According to SP10 the cause of death of the deceased was due to slash wound on the deceased’s neck. C. FINDING OF THE LEARNED HCJ AT THE END OF PROSECUTION’S CASE [10] Based on the case of Balachandran v Public Prosecutor [2005] 1 CLJ 85 and Looi Kow Chai & Anor v Public Prosecutor [2003] 1 CLJ 734, the learned HCJ ruled that a prima facie case had been established by the prosecution as there are credible evidence to establish the essential ingredients of the offence namely: i. that the deceased had died; ii. the death of the deceased was due to the injuries sustained by the deceased; iii. the injuries sustained by the deceased was caused by the act of the accused; and iv. that the accused had intended to cause the injuries and the bodily injury intended to be inflicted is sufficient in the ordinary cause of nature to cause death.

The learned HCJ found that there is no dispute that the deceased had died. The identity of the deceased was confirmed by SP3, SP4, SP9, SP12 and SP18. The evidence of SP10 who conducted the post mortem on the deceased also confirmed that the deceased had died.

In respect of second ingredient, the learned HCJ accepted the evidence of SP10 who had prepared a post mortem report (exhibit P 55) stating that there were 18 external injuries seen on the deceased’s body, particularly at her cheek, forehead, neck, chin, chest, palm, leg and wrist. In respect of the internal injuries, SP10 stated as follows: “19. Pemeriksaan dalaman di leher mengesan luka kelar pada otot sternocleidomastoid kanan. Luka kelar juga didapati telah memotong saraf parasympathetic kanan, salur darah jagular kanan dan salur darah carotid kanan, 8 cm dari cabang salur darah brachiocephalic.

Pemeriksaan lanjut bahagian leher menunjukan terdapat luka kelar pada tulang rawan thyroid dan epiglottis. Luka kelar juga telah mencederakan bahagian ‘Laryngopharynx’. Terdapat luka kelar pada otot paravertebral kanan.” …. [13] SP10 then made the following findings on the death of the deceased: “24. Pemeriksaan bedah siasat mendapati luka kelar di leher yang mencederakan dan memotong salur darah carotid kanan dan salur darah jagular kanan. Luka kelar di leher ini juga telah mencederakan otot leher kanan, epiglottis, rawan thyroid dan laryngopharynx.

Kecederaan luka kelar yang dialami ini adalah akibat daripada kudrat suatu objek tajam seperti pisau, pedang dan seumpamanya.

Luka kelar ini adalah secara lazimnya, membawa kepada kematian kerana saluran darah yang tercedera di leher adalah salur darah vital. Luka kelar di leher ini menyebabkan kematian berlaku secara pantas akibat pendarahan.

Dapat dikesan luka-luka mempertahankan diri pada anggota atas mendiang.” [14] In respect of the cause of death, SP10 concludes as follows: “30. Sebab kematian diberikan adalah akibat luka kelar di leher.” [15] Based on the finding of SP10, the learned HCJ ruled that the prosecution had proven that the injuries sustained by the deceased is sufficient in the ordinary cause of nature to cause death under the ambit of section 300 (c) of the Penal Code. [16] On the issue of whether the accused had inflicted the said injuries on the deceased, the learned HCJ relied on circumstantial evidence adduced during the trial i.e.: i. the evidence of SP7 that on 2.10.2018 the accused sold jewelleries belonged to the deceased for RM950.00. SP7 had issued a receipt for that transaction under the accused name. SP7 had also made copies of the accused’s identity card. ii. the evidence of SP4 who confirmed that the jewelleries seized from the SLR Jewellery which was earlier on sold by the accused belonged to the deceased. iii. the evidence of SP12 that on the date of incident at about 1.00 pm, he saw the accused riding a dark coloured motorcycle in front of his house. He testified that he could clearly see the accused and had identified the accused at the Identification Parade held on 7.10.2018. iv. the evidence of SP13, the deceased next-door neighbour who testified that on 2.10.2018 at about 1.20 pm she saw the accused in front of the deceased’s house. SP13 could see the accused clearly and had identified him during the Identification Parade on 7.10.2018. [17] The learned HCJ acknowledged the fact that the murder weapon was not found. However, based on the circumstantial evidence as referred to in paragraph 16 (i) to (iv) above, the learned HCJ found a prima facie case had been established by the prosecution and called the accused to enter his defence. D. THE DEFENCE CASE [18] The deceased was related to the accused. She was the accused’s sister-in-law. On 2.10.2018, the accused borrowed a motorcycle from his friend named Edwin. After buying food at a shop at Bandar Seremban Selatan, Seremban he went to his aunty’s house. Thereafter, he went to the deceased’s house. Upon arrival at the deceased’s house, the accused rang the doorbell of the house affixed at the gate of the house for about 2 to 3 minutes. However, nobody came out of the house. The accused then parked the motorcycle outside of the house and entered the gate. He then knocked on the door of the house for about 2 to 3 minutes and called for the deceased and her husband. When nobody answered the door, the accused left the house. He said he did not enter the house. [19] Then the accused went to a nearby shop and bought cigarette and liquor. After consuming the liquor, the accused proceeded to the town. He then had dinner at a Chinese stall. He also had consumed liquor at the said stall. Thereafter, he went to a hotel located near to the Chinese stall and checked in into the hotel to sleep. According to the accused, while he was sleeping in the hotel room, the police entered the room and hit him. According to the accused, the police accused him of murdering a woman. However, the accused claimed that the police did not tell him the name of the woman. The accused also claimed that the police had beaten him until be became unconscious. When he regained his consciousness, the accused found himself naked in the police lock up. However, the police did return his clothing later when he was still in the lock up. [20] In essence, the accused denied murdering the deceased. E. FINDING OF THE LEARNED HCJ AT THE END OF DEFENCE CASE [21] Having considered the evidence, the learned HCJ ruled that the accused’s defence consists of bare denial without any supporting evidence. Citing the case of Public Prosecutor v Abdul Rehman Abdul Hameed [2016] MLJU 970, the learned HCJ was of the opinion that the absence of the murder weapon or object in the deceased’s house did not affect the prosecution’s case in the light of sufficient material evidence connecting the accused and the death of the deceased. [22] Based on the evidence adduced by the accused, the learned HCJ ruled that the accused had failed to cast any reasonable doubt on the prosecution’s case. Hence, based on the evidence before Her Ladyship, the learned HCJ found that the prosecution had proved its case beyond reasonable doubt and convicted the accused under section 302 of the Penal Code and sentenced the accused to death. F. GROUNDS OF APPEAL [23] The grounds of appeal are brief. The accused contended that the learned HCJ had erred both in fact and law in calling for his defence as there were gaps and doubts in the prosecution’s case. The accused also contended that the learned HCJ had erred both in law and in fact in ruling that the accused had failed to cast any reasonable doubt in the prosecution’s case. Finally, it was contended that the learned HCJ had erred in law and in fact in sentencing the accused to death. G. OUR ANALSIS AND FINDINGS [24] Having carefully examined the appeal record, we are of the opinion that the crux of the appeal is on the issue of identity of the accused. The question before us would be whether the accused was the person who had caused the injuries that led to the death of the accused. There are no witnesses who saw the accused committed the crime. Instead, the prosecution relied on circumstantial evidence to prove the identity of the accused. Hence, it is pertinent for us to determine whether the prosecution had adduced sufficient circumstantial evidence to prove the identity of the accused. [25] The trial process, both in civil and criminal cases, would require any party who wishes to obtain judgment in their favour to prove the facts in issues of their case. Section 2 of the Evidence Act 1950 (EA) defines “facts in issue” as any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows. In civil cases, the facts in issue are the facts that a party must prove as established by the pleadings (see How Paik Too v Mohideen [1968] 1 MLJ 51), whereas in criminal cases, the facts in issue are the ingredients of the offence that must be proved (see R v Sim [1946] 1 All ER 697). Ideally, the facts in issue should be proved by direct evidence pursuant to section 59 and 60 of the EA i.e. from a witness who himself perceived the fact. However, in situations where direct evidence is unavailable, the EA allows the parties to rely on circumstantial evidence. In Idris v Public Prosecutor [1960] MLJ 296 Hill AG CJ observed as follows: “Circumstantial evidence consists of this: that when you look at al surrounding circumstances, you find such a series of undersigned, unexpected, coincidences that, as a reasonable person, you will find your judgment is compelled to one conclusion. If the circumstantial evidence is such as to fall short of that standard, if it does not satisfy that test, if it leaves gaps than it is of no use at all. As I have stated this case depends entirely upon circumstantial evidence.” [26] The decision of this court in Public Prosecutor v Karim bin AB Jabbar [2008] 3 MLJ 685 further explains the application of circumstantial evidence as follows:

the essence of circumstantial evidence is not the effect of the individual strands of evidence but the combined effect of all the circumstances when taken together; and

(ii) the mental element of a crime must, in the absence of an admission, be established through circumstantial evidence from which admissible inferences may be drawn. [27] It is settled law that where the prosecution is relying on circumstantial evidence, it is enough for the trial court to merely say that it is satisfied with the accused’s guilt beyond reasonable doubt. In the case of Jayaraman & ors v Public Prosecutor [1982] 2 MLJ 306, Suffian LP on behalf of the then Federal Court held: “Held: (1) in a case tried without a jury and depending on circumstantial evidence, it is enough for the trial judge to remember only that the prosecution need prove its case beyond reasonable doubt and failure by him to also say that the circumstances are not only consistent with the accused having committed the crime but also such that they are inconsistent with any other reasonable explanation is not fatal. In other words, in a case depending on circumstantial evidence it is enough if the court merely says that it is satisfied of the accused’s guilt beyond reasonable doubt, without further saying that the facts proved irresistibly point to one and only one conclusion, namely the accused’s guilt.” [28] In this regard, it is pertinent to refer to the observation made by the learned Lord President at page 310 of the report: “In our view the irresistible conclusion test only seems to place on the prosecution a higher burden of proof than in a case where it depends on direct evidence, for in fact to apply the one and only one irresistible conclusion test is another way of saying that the prosecution must prove the guilt of the accused beyond reasonable doubt. As Syed Othman F.J., said in the instant case this is only a “play of words”. If the facts proved point to a reasonable alternative to the guilt of the accused, it is only another way of saying that there is a reasonable doubt in the prosecution’s case and so the prosecution has not proved its case beyond reasonable doubt. Similarly if the facts proved show some reasonably possible explanation, for example an accident, or if there are inconsistent with any other hypothesis than that of the guilt of the accused of if there are capable of an innocent interpretation of if there are ambiguous as being equally consistent with guilt or innocence. In all these cases the facts proved do not point to the guilt of the accused, the trial court is or cannot be sure that the accused is guilty and must acquit-because the prosecution has not proved its case beyond reasonable doubt.” [29] Juraimi bin Husin v. Public Prosecutor [1998] 1 MLJ 537 at page 582 the Court of Appeal states that: “……The proposition that circumstantial evidence must, when taken together, irresistibly lead to the conclusion that the accused committed an offence is merely another way to saying that the prosecution must prove its case beyond reasonable doubt. This is because any gap in the circumstances relied upon or an interpretation of them that reasonably leads to an alternative conclusion in consistent with guilt will result in the prosecution not having proved its case beyond reasonable doubt.” [30] See also the case of Dato’ Mokhtar bin Hashim v Public Prosecutor [1983] 2 MLJ 232, per Eusoffee Abdoolcader FJ at page 275 that: “Where circumstantial evidence is the basis of the prosecution case the evidence proved must irresistible point to me and only conclusion, the guilt of the accused but in a case tried without a jury the failure by the Court to expressly state this is not fatal and it would suffice if it merely says that it is satisfied as to the guilt of the accused beyond reasonable doubt.” [31] In cases where the prosecution relies on circumstantial evidence, the learned HCJ as a trier of fact, must be satisfied that, when considering all the evidence in its totality, the combined strength of these individual evidence will lead to an inference of guilt of the accused for the offence he is charged with. Hence, in Chan Chwen Kong v Public Prosecutor [1962] MLJ 307, Thomson CJ observed: …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 accused. [32] In evaluating the circumstantial evidence adduced by the prosecution, we find guidance from the case of Hanumant Govind Nargundkar and another v State of Madhya Pradesh AIR 1952 SC 343 in the following: It is well to remember that in cases where the evidence is of a circumstantial in nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. [33] Based on the above principle of law, we need to analyse the evidence adduced during the trial as reflected in the record of appeal and to determine whether the finding of the learned HCJ was correct. [34] The prosecution called two witnesses who testified that they saw the accused at the deceased’s house in the afternoon of 2.10.2018. SP12 was the deceased’s neighbour. He is a night market trader. His house was 3 houses away from the deceased’s house. On 2.10.2018 at about 1.10 pm, while unloading goods from his lorry, he saw the accused riding a motorcycle passing by the deceased’s house. He saw the accused at a distance of about 10 to 11 feet. In his words, SP12 said: S: Masa lelaki itu lalu depan rumah En Sanmuga, kamu nampak dia naik motor, macam mana kamu nampak muka dia. J: Saya nampak muka dia, dia nampak muka saya’ S: Biasa bila kita naik motor kita pakai helmet, soalan saya macamana kamu nampak muka dia J: Dia tidak pakai helmet. … S: Dan En Sanmuga, masa lihat dia tu ada tak apa-apa objek yang menghalang pandangan En Sanmuga? Boleh nampak jelas ke? J: Tak ada objek. Terang, saya nampak dia terang. [35] After seeing the accused passing by, SP 12 went into his house. At about 2.00 pm the deceased’s son came to his house, telling SP12 that his mother (i.e. the deceased) had fallen down and were bleeding. SP12 then rushed to the deceased house and saw the deceased lying down motionless on the floor near the staircase. [36] It must be noted that on 7.10.2018, SP12 attended an Identification Parade and managed to identify the accused. [37] Another witness, SP13 was the deceased’s next-door neighbour. According to SP13, on 2.10.2018 between 1.15 pm and 2.00 pm, she saw the accused riding a motorcycle slowly. The accused look in the direction of her house. A few moments later, SP13 heard the sound of the doorbell of the deceased’s house and the accused called “Achi”. At this point of time SP13 saw the upper part of the accused’s head (bahagian atas kepala dia). She heard someone answering the call. After that SP13 returned to her house. On 7.10.2018, SP13 attended an Identification Parade at the police station and managed to identify the accused. In re-examination, the witness gave a description of the accused as follows: S: Dan puan setuju yang pengecaman hari ini puan camkan OKT tadi tu dan pengecaman di Balai Polis Sikamat adalah berdasarkan puan lihat OKT menunggang motorsikal sahaja. Boleh puan jelaskan? J: Dia naik motor, berbangsa India, rambut kerinting-kerinting sikit, berpakaian agak kemas, seluar paras lutut. [38] The accused was arrested in room 307 at Royal Star Hotel, Seremban on 3.10.2018 at about 12.30 am. The arrest was made by SP14. During the arrest, the police found, among others, the receipt for the sale of jewelleries and one unit of Xiaomi handphone. The deceased’s husband, PW4 identified the Xiaomi handphone belonged to deceased. It must be noted that the accused is PW4’s cousin. [39] The prosecution also called SP7, the owner of a jewelleries shop. He testified that on 2.10.2018 the accused came to his shop to sell some jewelleries. According to SP7 the accused claimed that the jewelleries belonged to his wife and that the wife needed the money for the family. SP7 examined the jewelleries, and paid RM950 to the accused. It must be noted that negotiation for the sale of the jewelleries took about 15 to 20 minutes and during that time SP7 was sitting facing the accused. SP7 then requested for the identity card of the accused and make a copy thereof for his record. He also issued a receipt for the purchase and gave it to the accused. According to SP7, about 4 to 5 days later, the police came to his shop together with the accused. The police then seized the jewelleries that was sold by the accused on 2.10.2018 as well the receipt and the receipt book. SP7 also attended an Identification Parade at Seremban 2 police station where he identified the accused. It must be noted that the PW4 also identified the jewelleries that were seized from SP7’s shop belonged to the deceased. [40] In this respect, we are minded of the discrepancies in the prosecution’s case with regards to the discovery of the copy of the sale receipt of the jewelleries. As stated earlier, SP14 told the court that he found the said receipt in the hotel room where the accused was arrested. This contradicted the evidence of SP6 who had stated that he had seized both the original and the copy of the said receipt from SP 7. It was submitted by learned counsel that the inference that can be made from this discrepancy is that the said copy of the receipt was found at two different date, time and had cast doubt in the prosecution’s case. [41] While we agree that there was discrepancy in the evidence of SP 6 and SP 14 with regards to the discovery of the sale receipt, we are of the view that, in the light of the evidence of SP7, there is no doubt that it was the accused who had sold the jewelleries. SP 7 had spent between 15 to 20 minutes when negotiating with the accused on the selling price of the jewelleries. He had also asked the accused for his identity card and made a copy thereof. We find no reason to doubt the identification of the accused by SP7. Likewise, we could not agree with the submission of learned counsel that the failure of the prosecution to produce the CCTV recording for the purpose of identifying the accused being the person who had sold the jewelleries at SP 7’s shop was fatal. [42] In the course of investigation the police seized the accused’s short pants (exhibit P14). There were blood stains found on the shorts. The said short pants was sent to the Chemistry Department for analysis. In her DNA analysis, the chemist, SP11 found that the deceased’s blood was found on the accused’s short pants. [43] In our view, the above evidence, taken in its totality proves the following facts namely: i. accused was present in front of the house of the deceased; ii. the accused had entered into the said house; iii. the accused had taken the deceased’s jewelleries; iv. the accused had sold the said jewelleries belonging to the deceased to PW7; v. the accused had taken the deceased’s handphone vi. the deceased’s blood stain was found on the shorts worn by the accused. [44] Considering the proximity of time between events shown in paragraph [41] (i) to (vi) above and the time when the deceased was found dead, it is highly probable that the accused was the one who had inflicted the injuries that led to the death of the deceased before taking the jewelleries from her. In particular, the deceased’s blood stain found on the accused’s short pants and the sale of the deceased’s jewelleries by the accused formed the direct nexus between the accused and the murder. It was established through the photographs tendered by the prosecution that there were blood stains found in the house where the deceased was murdered. Hence, it is highly probable that the short pants was spattered with the deceased’s blood when the accused inflicted the injuries on her. As we have mentioned earlier, a single fact may not be sufficient to prove a case against the accused. However, considering all the evidence as stated above in its totality, we are satisfied that the accused was the person who had inflicted the injuries on the deceased which led to her death. [45] Another issue that was raised by learned counsel was pertaining to the admissibility of the evidence of SP6 with regards to the discovery of the jewelleries at SP7’s shop. In his testimony, SP 6 told the court that during the investigation, the accused had voluntarily told him “Tuan, saya boleh tujuk kedai yang saya jual emas yang saya ambil dari Seremban Jaya.” The prosecution relied on section 27 of EA in introducing the evidence of the said discovery. In his submission, learned counsel contended section 27 of EA is not applicable because the jewelleries were not discovered from a hidden place and that the police had prior knowledge of the location of the said jewelleries when SP14 seized the sale receipt from the accused at the hotel room. Learned counsel also submitted that the information given by the accused to SP 6 leading to the discovery of the said jewelleries were not given voluntarily. According to the accused, during the interrogation, his hands were handcuffed, his mouth was covered with cello tapes, his legs were tied/handcuffed, his sole was beaten, he was stripped naked and his private part was injured. [46] It must be emphasized that the admissibility of the evidence leading to discovery was not raised or argued before the learned HCJ. In fact, it was not discussed in the ground of judgment of the learned HCJ. Nevertheless, since this issue was raised in learned counsel’s written submission, we will discuss it here. [47] Section 27 EA provides:

How much of information received from the accused may be proved.

When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not, as relates distinctively to the fact thereby discovered may be proved. [48] The information admissible under section 27 of the EA includes accused’s statement, or his act or conduct such as pointing out which leads distinctly to the discovery of a fact. For such information to be admissible in evidence there is no duty on the prosecution to prove voluntariness of the information. In the Federal Court in Siew Yoke Keong v. Public Prosecutor [2013] 4 CLJ 149 Ahmad Maarop FCJ (as His Lordship then was) held: “(28) In the light of the authorities referred to, we hold that information admissible under s.27 of the Evidence Act includes accused’s statement, or his act or conduct such as pointing out which leads distinctly to the discovery of a fact. For such information to be admissible in evidence, there is no duty on the prosecution to prove the voluntariness of the information. Hence, it is not necessary to conduct a trial within a trial to determine the voluntariness of the information……” [49] On the issue of voluntariness, we disagree with the submission of learned counsel who had cited the case of Md Desa bin Hashim v Public Prosecutor [1995] 3 MLJ 350 which had held, among others that, for the statement under section 27 to be admissible, it must be made voluntarily. We are of the view that the case of Goi Ching Ang v Public Prosecutor [1999] 1 MLJ 507 and Siew Yoke Keong v. Public Prosecutor (supra) which held that the issue of voluntariness is not a prerequisite in determining the admissibility of section 27 statement should be followed. Be that as it may, the court may reject the evidence obtained in an oppressive manner, by force or against the wishes of the accused or by trick or by conduct of which the police ought not to have taken advantage of as it would operate unfairly against the accused (see Goi Ching Ang v Public Prosecutor (supra)). [50] However, it must be borne in mind that the application of the information which is admissible under this section is only limited to the discovery of a fact relevant to the charge against the accused as a consequence to the information given and the knowledge of the accused as to this. It should not be used, for example, to prove the accused’s guilt to the offence charged. In the case of Chong Soon Koy v Public Prosecutor [1977]2 MLJ 78, Suffian LP in discussing the application of section 27 of the EA cited with approval the case of Pulukuri Kotayya v R 74 I.A 65 where it was stated that: “…In their Lordship’s view, it is fallacious to treat the “facts discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” [51] In Sarkar on Evidence, Sixteenth Edition at page 616 it was stated that: ” It would appear from the above statement of law that s 27 comes into operation when some material object is produced from somewhere in consequence of some information given by the accused: but the fact discovered includes not merely the object found but also the place where it lay and the accused’s knowledge as to the place. The knowledge of the accused as to the place indicates that the discovery was due to the information received from him i.e. he is the informant as contemplated in the section. It seems to have no reference to any other mental of psychological fact. In other words, the fact discovered must be such that the proof of its existence does not depend on the credibility of the accused or any other person, but is confirmed by the production of the object itself which can be perceived by the senses. That alone is the reason for the reception of the statement even if it contained in a confession, for the discovery of the material object proves conclusively that that portion of the statement at least cannot be false.” [52] It must be note that learned counsel had taken the view that the police had prior knowledge of SP7’s shop before being informed by the accused. This contention is based on the evidence of SP14 that he had seized the sale receipt from the hotel room where the accused had been arrested. It was impressed upon us that since SP14 had seized the sale receipt on 3.10.2018, by the time the accused gave the information leading to the discovery of the said jewelleries to SP4 on 4.10.2018 the police must already have the information regarding the location of SP7’s shop where the accused had sold them. It was further argued that SP 14 or any other police officer could have easily gone to investigate at SP7’s shop as the address of the said shop appeared on the said receipt. Hence, it was submitted that the evidence is inadmissible under section 27 EA. [53] On this point, the case of Francis Antonysamy v Public Prosecutor [2005] 2 CLJ 481 in citing the case of Public Prosecutor v Hashim bin Hanafi [2002] 4 MLJ 176 stated: It follows that prior knowledge which will make s 27 inapplicable must be such a nature that it must be capable on its own of leading to the discovery of the object. If it does not have that effect then the cause of the discovery will still be the information supplied by the accused and not the prior knowledge of the police. In that event, the information supplied by the accused will be admissible as the information that the police have will not amount to prior knowledge. [54] However, in this case, besides the discrepancy with regards to the seizure of the sale receipt, the is no evidence that the police had the prior knowledge of the whereabout of the jewelleries. Even though SP14 was also involved in escorting the accused to SP7’s shop, there is no evidence that he had informed SP6 about the seizure of the sale receipt from the accused. In fact, all the exhibits found in the hotel room and seized from the accused were handed over to the Investigation Officer of the case, not SP6. Notwithstanding the fact that the address of SP7’s shop appears on the said receipt, there is no evidence that the police team knew the exact where about of the shop. [55] Based on the evidence, we are of the view that the fact that SP14 had seized the receipt from the accused on its own did not lead to the discovery of the jewelleries. The evidence leading to the discovery of the jewelleries were given to SP6. Hence, this admissible under section 27 EA. [56] Back to the present case, and based on the authorities, the information supplied by the accused relating distinctly to the facts thereby discovered is the information with regard to place where he had sold the deceased’s jewelleries. Whereas the facts discovered embraces the place where the jewelleries were found and that the accused knowledge as to this. Standing alone, this fact did not show that the accused was the one who had inflicted the fatal injuries on the deceased. This fact must be considered as part of the circumstantial evidence relied upon by the prosecution. [57] Based on the above reasons, we are of the view that the prosecution had proven the fact that the accused was the person who had inflicted the injuries on the deceased that had caused her death. In his submission, learned counsel suggested that the murder was committed by someone else, including SP9. We have carefully perused the notes of proceeding and find no evidence that supports his theory. The identity of the accused had been established by the circumstantial evidence. We are of the opinion that the learned HCJ had considered all relevant facts before arriving at her finding on the identity of the accused. She was therefore correct in finding the prosecution had proved a prima facie case against the accused. [58] We are also satisfied that the learned HCJ had sufficiently considered the defence case. The learned HCJ had summarised the defence evidence at paragraphs [36] to [38] of the grounds of judgment: [36] Pada 2.10.2018, OKT seorang diri telah menunggang motorsikal yang dipinjam dari kawannya, Edwin untuk ke sebuah kedai di Kawasan Bandar Seremban Selatan, Seremban Jaya bagi membeli makanan. OKT kemudiannya telah ke rumah ibu saudaranya dan selepas itu ingin ke rumah abang dan kakak iparnya (Simati) yang terletak di kawasan perumahan yang sama yang jaraknya dalam 1 minit perjalanan dari rumah ibu saudaranya. Setibanya di rumah Simati, OKT membunyikan loceng rumah yang terletak di pagar besar selama lebih kurang 2-3 minit tetapi tidak menerima apa-apa respons. [37] OKT memakir motorsikal di luar rumah lalu masuk ke dalam kawasan rumah menggunakan satu pagar kecil dan mengetuk pintu rumah tersebut. Setelah lebihkurang 2-3 minit mengetuk pintu dan memanggil abang dan kakak ipar (Simati), tiada respons diterima oleh OKT lalu OKT keluar. Sepanjang berada di kawasan rumah tempat kejadian, OKT sama sekali tidak masuk ke dalam rumah tersebut. [38] Setelah beredar dari rumah tersebut, OKT menuju ke kedai berdekatan untuk membeli rokok dan arak. OKT kemudian bergerak ke bandar dengan menaiki motorsikal setelah minum arak di kedai tersebut. Pada sebelah malam pula, OKT makan dan minum arak di sebuah kedai makan Cina. Kemudian, OKT ke hotel yang berhampiran dengan kedai itu dan tidur di hotel tersebut. Secara tiba-tiba, semasa sedang rtidur di hotel tersebut, OKT diserbu dan dipukul oleh pihak polis. OKT menafikan pernah melihat thali (Ekshibit P19A) atau mengambil dan menjualnya ke kedai emas milik PS7. [59] Based on the facts, the learned HCJ made her finding as follows: [45] Di akhir kes pembelaan, saya berpuashati bahawa pihak pembelaan gagal menimbulkan sebarang keraguan yang munasabah. Versi keterangna yang dikemukakan oleh OKT, pada pendapat saya hanyalah penafian OKT semata-mata tanpa sebarang keterangan atau bukti yang kukuh. Ketiadaan senjata atau objek yang dijumpai di rumah tersebut seperti yang dihujahkan oleh pihak pembelaan, pada pendapat saya tidak langsung menjejaskan kes pihak pendakwaan kerana dalam kes ini terdapat keterangan material yang lain yang cukup untuk mengaitkan OKT dengan kejadian pembunuhan yang berlaku terhadap simati (rujuk: PP v Abdul Rehman Abdul Hameed [2016] MLJU 970) [46] Jesteru itu, berdasarkan penilaian yang menyeluruh (maximum) atas semua keterangan yang diberikan oleh pihak pendakwaan telah berjaya membuktikan kes mereka melampaui keraguan yang munasabah. Oleh yang demikian, OKT didapati bersalah dan disabitakn atas kesalahan di bawah seksyen 302 Kanun Kesiksaan sepertimana yang dipertuduhkan terhadapnya. [60] Based on the evidence, we agree with the finding of the learned HCJ that the accused defence consist of bare denial. The accused could not explain how the deceased’s blood stain were found on his shorts and that how he came into possession of the jewelleries before selling them at SP7’s shop. These two evidences are crucial in linking the accused to the murder of the deceased. Consequently, the accused had failed to cast any reasonable doubt on the prosecution’s case. [61] We find no appealable error on the part of the learned HCJ in her finding that warrants appellate interference. Appeal against conviction is hereby dismissed. [62] With regards to sentence, we acknowledge the fact that with the introduction of the Abolition of Death Penalty Act 2023, the death sentence is no longer mandatory for murder cases. In the case of Khairul Azizi Abdul Jalil v Public Prosecutor [2024] 6 MLRA 82 cited by learned counsel, this court opined that: As regards sentence, in light of the Abolition of Death Penalty Act (Act 846), it is now no longer mandatory on the Court to impose the death penalty to everyone convicted of murder. The death sentence should only be imposed in the most extreme and exceptional murders which are the ‘worst of the worst’ or the ‘rarest of the rare’ and only after determining the question of the accused’s possibility of reform. [63] In this case, we agree with learned counsel that this is not the ‘worst of the worst’ or the ‘rarest of the rare’; hence we find it appropriate to substitute the death sentence imposed by the learned HCJ with an imprisonment sentence of 36 years and 15 stoke of whipping. We order that the imprisonment sentence to take effect from the date of arrest. [64] In conclusion, we order that the appeal conviction is dismissed; the order of the learned HCJ is hereby affirmed. We allow the appeal against sentence, we set aside the death sentence imposed by the learned HCJ and order that the accused be sentenced to imprisonment of 36 years, to take effect from the date of arrest and 15 strokes of whipping. To that extend the appeal is allowed. Dated: 11 APRIL 2025 -t.t-AZHAHARI KAMAL BIN RAMLI JUDGE COURT OF APPEAL, MALAYSIA For the Appellant : 1) ROSELI BIN ABDUL GANI [A G Roseli & Assoc.] For the Respondent : 1) TPR SARULATHA a/p PARAMAVATHAR [Jabatan Peguam Negara AGC]