SETHUPATHI A/L PATHI v Pendakwa Raya (M-05(M)-384-10/2020)

Logan Raj a/l Letchemanan

Satish a/l Alagapan

Vincent Lawrence a/l Govindaraju

Namasivayam a/l Perumal

Narendranpathy a/l Pathi

Sethupathi a/l Pathi

Aiman Bin Mazlan

Pragash a/l Ismail) CORAM HANIPAH BINTI FARIKULLAH, JCA GUNALAN A/L MUNIANDY, JCA NORDIN BIN HASSAN, JCA JUDGMENT INTRODUCTION [1] These appeals by the Appellants, who were Accused 4,5,6 and 7 in the Court below [A.4, A.5, A.6 & A.7] against their conviction and sentences imposed by the Learned Judicial Commissioner [‘LJC’] under Section 302 of the Penal Code [‘PC’]. On being found guilty and convicted as charged with murder under S.302 PC, the LJC sentenced the Appellants to death by hanging. FACTUAL BACKGROUND [2] The charge against the Appellants read as follows: “Bahawa kamu pada 04.05.2013 jam lebih kurang 10.45 malam, di hadapan rumah No. 91, Jalan BJ 2, Taman Bertam Jaya, di dalam Daerah Melaka Tengah, di dalam Negeri Melaka, bagi mencapai niat bersama kamu telah melakukan bunuh dengan menyebabkan kematian terhadap seorang lelaki R. SIVAN A/L B. RAGAVAN (No. K/P: 810720-05-5267), dan oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan dan dibaca bersama Seksyen 34 Kanun yang sama”. [3] On 4.5.2013 at about 10.45 pm, the deceased arrived at the house bearing address No. 91, Jalan BJ2, Taman Bertam Jaya, together with his two friends, namely, PW28 and PW32 on a motorcycle. [4] Upon arrival, while the deceased was talking on the handphone, two cars and a motorcycle arrived at the said house. A group of eight men in two cars and a motorcycle attacked the deceased using parangs and hockey stick. As a result of the attack, the deceased collapsed in a pool of blood. The attackers fled the scene. [5] The deceased who was in critical condition was brought to Malacca Hospital for treatment and was pronounced dead on 5.5.2013, at 10.40 am. [6] PW.30, the pathologist who did the autopsy on the deceased’s body confirmed that the deceased died due to slash wounds to the head and arm. [7] PW.25, PW.28 and PW.29 in their evidence positively identified the Appellants as the assailants. [8] The Appellants gave their sworn evidence in defence that they were at the place of the incident. However, they denied committing the offence of murder of the deceased. They denied having attacked and stabbed the deceased during the incident. [9] The trial judge found that the Appellants have failed to raise a reasonable doubt on the prosecution case. As such, the Appellants were found guilty as charged and convicted for the offence of murder of the deceased and were sentenced to the mandatory sentence of death. OUR DECISION [10] In support of their appeals seeking that the finding of the LJC is set aside, the Appellants advanced the following grounds as summarised below: 1) Failure of the LJC to comply with the requirements of S.182 A of the Criminal Procedure Code [‘CPC’]; 2) The LJC had failed to consider all the evidence and the case as a whole before making his finding at the conclusion of the defence case against the Appellants; 3) Plain error by the LJC in finding that the Appellants had been positively identified as the assailants; 4) Failure by the LJC to properly analyse the evidence at the close of the defence case and sufficiently address the issue of common intention under S.34, PC – a necessary element of the charge; and 5) Negligence of defence counsel of A.4 resulting in A.4 being found guilty as charged despite presenting the same evidence and defence as the 2nd and 3rd Accused [‘A2’ and ‘A.3’] who were found not guilty and acquitted of the charge. [11] In respect of the Appeals by A.4 – A.7 [‘Appeal 380’] the Respondent / Public Prosecutor [‘PP’] contended that a prima facie case had been made out for the offence of murder as the elements of the offence under S.302, PC had been made out. [12] We note that as regards proof of the vital elements of murder, the dispute revolved around whether the identity of the persons who had inflicted the fatal injuries on the deceased had been established. It was the Prosecution [‘PP’s] contention that the Appellants had been positively identified through the evidence of 3 material witnesses, namely, PW.25, PW.28 and PW.29. [13] In summary, the material evidence of the above witnesses that the PP highlighted to us was as follows. [14] Firstly, the evidence of PW.25, the mother of the deceased that she was at the scene of the crime when the accused, i.e., the Appellants, arrived at the scene and attacked the deceased. [15] Secondly, an eye witness (PW.28) testified that he arrived at the scene with “abang Siva” (‘deceased’) on a motorcycle just before the incident occurred. Upon arrival, the deceased spoke on the handphone with one ‘Naren’ from whose voice PW.28 identified that person as someone known to him i.e. A.5. After being obstructed by Accused 8 and 1 [‘A.8 and A.1’] using a stick, PW.28 then saw Accused 5, 6, 4, 3 & 7 [‘A.5, A.6, A.4, A.3 & A.7’] together with 1 or 2 unknown persons hit the deceased with sticks and stab him with a parang. He was able to positively identify these accused persons who assaulted and stabbed the deceased during the incident. [16] PW.29 was the other purported eye-witness called by the prosecution. He confirmed that the deceased had arrived at the scene with SP.28 and SP.32 on the motorcycle. Suddenly, 2 cars and a motorcycle also arrived at the scene. The 8 persons who had arrived in the car and the motorcycle started attacking the deceased using parangs and a hockey stick. A.5 was the first person who attacked the deceased followed by A.1 – A.4, and A.6 – A.8 using a parang to the head, hands and abdomen. At the time of the attack, PW. 29 was only 6 - 7 feet away. PW. 29 knew A.1 – A.8 at the material time because they had previously come to his house in Batu Cheng, Malacca to meet the deceased. The PP submitted that the defence attempt to challenge the credibility of PW.29’s evidence failed because his evidence was strong and cogent. [17] In contrast to the thrust of the PP’s case on the core issue of positive identification, the Appellants pointed out to us certain salient aspects of the LJC findings on the issue of the identity of the assailants, amongst others that the PP had presented 4 different versions through the evidence of key witnesses, namely PW. 25, PW.28, PW. 29 & PW. 30 (via the Forensic Report). Yet, the LJC had decided to call for the defence of 6 of the accused persons (A.2 – A.7). [18] Despite the above finding, after A.2 and A.3 had given evidence on oath which was consistent with the evidence of PW.25 and PW.32 that 20 persons who had been at the scene at the time of the incident had attacked and injured the deceased, the LJC decided that the testimony of PW.29 had to be reviewed for the reason that from the angle that PW.29 was standing at that time, it was impossible for him to identify the assailants who attacked and injured the deceased. Moreover, at that time at least 20 persons had surrounded the deceased and the LJC had found the credibility of the other prosecution witnesses to be lacking at the end of its case. Importantly, the LJC found PW.29’s evidence to be unreliable upon reviewing his evidence after the close of the defence case and it was on the strength of this evidence that the Appellants had been called upon to enter on their defence to the S.302 charges. [19] It was the defence contention that as the evidence of PW.29 which was the basis for the calling of the defence was found to be incredible and unworthy of credit, there was, thus, no evidence before the Court to establish positive identification of the Appellants as the persons who had caused the fatal injuries to the deceased and ultimately, his death. With respect to the LJC, we are in agreement with the defence contention of the issue of positive identification of the Appellants that the LJC that plainly evidence in failing to give due regard to the material contradictions and unreliability of, the prosecution evidence on this vital issue. [20] Guidance can be rightly sought from the Federal Court [‘FC’] case of Ong Teik Thai v PP [2017] 4 MLJ 421 where it was pronounced that: “(1) As the charge against the appellant was that he together with four other persons at large had committed murder in furtherance of their common intention, the proof of common intention under S.34 of the Penal Code was crucial. Therefore, at the close of the prosecution’s case, there had to be sufficient evidence to prove that the appellant was acting in concert with the other four persons still at large in the commission of the murder of the deceased. If there was reasonable doubt that he was acting as such or if there was reasonable doubt as to the identification of the appellant as one of the persons acting as such, then the prosecution had failed to prove a prima facie case against the appellant entitling him to an acquittal. In the present case, there were contradictions in the evidence given by SP5 and SP6, in that SP5 testified that four men with yellow coloured hair had attacked the deceased, while SP6 claimed there were five assailants. Further, based on SP6’s testimony it was doubtful as to whether SP6 had actually seen the appellant slashing the deceased as he claimed. In fact, SP6 contradicted himself in his own evidence. As such, the credibility and the weight to be attached to SP6’s evidence was questionable (see paras 7 & 12 - 17).” [21] On the failure to consider the discrepancies and contradictions in the evidence of the vital identification witness, the FC remarked that the ultimate vital question is whether in view of the contradictions it was safe to rely on their evidence. That failure was a serious misdirection on the part of the trial judge in his handling of the issue of identification of the appellant, which was so crucial to the question of whether the prosecution had established a prime facie case against the appellant. This misdirection (by way of non-direction) alone was sufficient to warrant appellate intervention (see paras 18-19 & 21). [22] It was rightly highlighted to us that the LJC’s decision to call for the defence of A.2 – A.7 on the murder charge was questionable as the LJC himself had remarked that the PP had presented 4 different versions of the incident. It was indisputable that the versions narrated by PW.25, PW.28, PW.29 and PW.32 differed substantially on material facts, particularly as to the identity of the actual persons who had attacked and caused injuries to the deceased where the prosecution leads 2 or more sets of evidence which contradict each other, the court would be left with no reliable and trustworthy evidence that could safely from the basis of a conviction. [see PP v Lee Eng Kooi [1993] 2 MLJ 322]. [23] It is clear to our minds that the LJC had failed to seriously consider the infirmities and unsatisfactory features in the prosecution evidence itself before reaching his conclusion that the Appellants had failed to cast a reasonable doubt in the PP’s case. [see also PP v Tiong Wee Kiet [2019] 1 MLJ 634, COA]. [24] We agree with Appellants’ propositions that where the PP’s case itself is riddled with contradictions and inconsistencies, which is the case here, conviction hardly stand. [see PP v Arumugam a/l Muniady & Ors [2018] 1 LNS 369 COA - affirmed by the Federal Court]. [25] We must pay particular attention to the LJC finding that the credibility of PW.29, on whose evidence the LJC had found a prima facie case against the Appellant had been negatived upon hearing the defence evidence. In the circumstances, the LJC ought to have accorded the benefit of the doubt to the accused and not rely on the evidence of witnesses who, in the first place, had not been considered reliable. [26] We would next proceed to deliberate on another vital issue raised by Appellants, namely, the absence of proof of the vital element of common intention under Section 34 of the Penal Code [‘PC’]. [27] On the issue of common intention, it is important to bear in mind the pronouncement of the LJC at the close of the prosecution that in relation to this vital element of the charge, his view was that it had been proved simply based on assumption from the presence of A.2 – A.7 at the scene when the incident occurred. [28] Central to the Appellants’ position on this point was that it was erroneous for the LJC to have made the essential finding merely based on assumption as in law he was required to evaluate the entire evidence adduced at that stage to ascertain the role and involvement of each of the accused in the incident that resulted in the death of deceased, particularly as to whether they had acted in furtherance of a pre-arranged plan to cause bodily injuries to him that could result in his death. [29] As impressed upon us by the Appellants, we must heed the settled principle in regard to burden of proof where the prosecution places reliance on S.34 of the Penal Code to implicate several accused persons who participated together in a criminal act in furtherance of a common intention. As emphatically pronounced by the Federal Court in Ong Teik Thai v PP [2017] 4 MLJ 421, as follows: “There was no finding made by the trial judge on the specific act done by the appellant in furtherance of the common intention which was crucial in a case such as this where reliance was placed on S.34 of the Penal Code. This was another serious misdirection that led to the conclusion that the trial judge had not made maximum evaluation of the evidence at the close of the prosecution’s case, which had occasioned a serious and substantial miscarriage of justice warranting appellate interference.” [30] We are convinced that the PP’s contention that based on the totality of its evidence, the presence of the Appellants at the scene and the fact that they had jointly participated in the attack on the deceased and caused fatal injuries to him, the common intention to cause his death had been proved, is wholly misconceived in law and fact. It is wrong in principle as a mere presence at the scene of crime without positive identification of the persons who had actually participated in the criminal act as per the charge will not sustain a charge which relies on the element of common intention to commit the offence charged to the pursuant to S.34 of the PC. [31] We would conclude on this issue that the LJC had plainly erred in his analysis of the evidence and in arriving at the conclusion that common intention as understood in law had been proved against the Appellants on the assumption of their intention based merely on their presence at the scene when the incident occurred. It was a perverse conclusion that had occasioned a miscarriage of justice. [32] We do not propose to deliberate on a couple of the lesser grounds raised by the Appellants except to touch briefly on the serious conflict in the findings of the LJC on the credibility of key witnesses at different stages of the trial. [33] This is a clear case where the important findings by the LJC appeared to us to be mutually exclusive as they conflicted with each other and rendered the evidence relied upon by the LJC far from reliable. It was so for 2 reasons. First, the LJC had found categorically that it was only the evidence of PW.29 that was credible and could be the basis for calling upon the Appellants to enter on their defence. However, at the end of the defence case, the LJC found that as A.5 had not rebutted the version of PW28, who had been found not to be credible, his version (A.5’s) had to be rejected. Second, A.5 had been charged under S.302, PC jointly with 2 other charges under S.326, PC. A.5 was acquitted and discharged of the S.326 charges based on a consideration of his subsequent conduct pursuant to Section 8 of the Evidence Act 1950. It was found that A.5’s subsequent conduct that was exculpatory was unrebutted by the PP. [34] We agree with Appellants’ contention that the LJC had erred in his decision to convict A.5 for the S.302, PC. Charge in view of his contradictory findings wherein he applied A.5’s subsequent conduct to acquit and discharge him for the S.326 charge but he failed to apply the same subsequent conduct to exculpate him of the S.302 charge. His conduct to which the LJC gave credence in arriving at his finding on the S.326 charge showed clearly the non-involvement of A.5 in the attack on the deceased. CONCLUSION [35] For the foregoing reasons, the decision we arrived at the conclusion of Appeal 381 - 384 is as follows: In our judgment, which is unanimous, there are merits in law and fact in the S.302, PC appeals. The decision of the High Court in our considered view is plainly wrong and warrants appellate interference. We are of the view that the LJC (now a High Court Judge) had erred in law and fact to convict the appellants. We find that there are contradictions in the evidence of the material witnesses especially the evidence of PW.28 and PW. 29 on the threshold issue of the identity of the Appellants. Therefore, as the convictions are unsafe, the decision of the High Court is accordingly set aside. We allow the appeal. The appellants are hereby acquitted and discharged. Dated: 7 April 2023 - sgd - GUNALAN A/L MUNIANDY Judge Court of Appeal Putrajaya COUNSEL FOR THE APPELLANT: Paul Krishnaraja (Together with Goh Chee Kian and Amy Chong) [Messrs Paul, Amy Chong & Associates] COUNSEL FOR THE RESPONDET: Leo Anak Saga [Attorney General's Chambers]