Siti Syariza Binti Ibrahim v Pendakwa Raya (J-05(M)-445-12/2020)

Abu Bakar bin Mahamed 2. Siti Syariza binti Ibrahim] CORAM: HANIPAH FARIKULLAH, JCA AHMAD NASFY YASIN, JCA NORDIN HASSAN, JCA JUDGMENT OF THE COURT INTRODUCTION [1] Before us, there are two separate appeals. These appeals are in respect of the conviction and sentence. The first appeal was registered as appeal No. J-05(M)-445-12/2020 and the second as appeal No. J-05(M)- 446-12/2020. They arose from a decision of the High Court. [2] In the High Court, the appellant in the second appeal, Abu Bakar bin Mahamed was the 1st accused and Siti Syariza binti Ibrahim, the appellant in the second appeal was the 2nd accused. It is not in dispute at the material time, both of them are husband and wife. For ease of reference, we will refer to the as they were in the High Court. [3] Originally, apart from the two accused, there were 4 other accused namely:

Muhammad Fardli bin Johana;

(ii) Md Ropi bin Puteh;

(iii) Mohd Najib bin Zohari; and

(iv) Mohd Zulheaffes bin Mustaffa. [4] However, before the trial began the 4 other accused were offered an alternative charge by the prosecution. [5] Muhamad Fardli bin Johana and Mohd Zulheaffes bin Mustaffa were offered an alternative charge under section 201 of the Penal Code. Both of them pleaded guilty and were sentenced accordingly. Whilst Md Ropi bin Puteh dan Mohd Najib bin Zohari were each offered an alternative charge under section 324 of the Penal Code and they also pleaded guilty and also were sentenced accordingly. [6] Thereafter, an amended charge was tendered by the prosecution against the 1st and the 2nd accused to include “dengan seorang lagi yang masih bebas”. This suspect who is still at large is known as “Yoi”. The amended charge also amended the place of incident “to pondok tidak bernombor bersebelahan kolam udang di Kampung Muhibah, Gugusan Adela, di dalam daerah Kota Tinggi, di dalam Negeri Johor Darul Ta’zim”. [7] Eventually, the charge proffered against both the accused is as follows: “Bahawa kamu dengan niat bersama dengan seorang lagi yang masih bebas pada 30 November 2016 di antara jam lebih kurang 7.00 pagi hingga jam lebih kurang 11.30 malam, di reban ayam di pondok tidak bernombor bersebelahan kolam udang di Kampung Muhibah, Gugusan Adela, di dalam Daerah Kota Tinggi, di dalam Negeri Johor Darul Ta’zim, telah melakukan kesalahan membunuh dengan menyebabkan kematian ke atas Md. Az’ari bin Saim (No. K/P: 781130-01-6583) dan dengan itu kamu semua telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan yang dibaca dengan Seksyen 34 Kanun Keseksaan.” [8] At the end of the prosecution’s case, the learned trial judge found that a prima facie case has been made out against both accused on the charge as proffered. They were ordered to enter defence. At the end of the case for defence, they were found guilty on the charge and were convicted and sentenced to the mandatory death penalty. [9] Aggrieved, both the accused appealed to this court against their conviction and sentence. We heard the appeal. After due consideration of the issues raised and the submission made in support thereof, we find no error in the decision of the High Court. We thus affirmed the order of conviction and sentence by the High Court. The following is our grounds in arriving at that decision. THE CASE FOR THE PROSECUTION [10] For brevity, below we summarise the narratives offered by the prosecution: -

One Jamian bin Keni (SP14) went to trawl shrimps together with Onn bin Mohamed (SP15) at the sea around Tanjung Buai when something was caught in their fishing net. SP14 and SP15 found a dead body wrapped with green coloured fencing wire entangled in their fishing net. The dead body wore only underpants and a pair of socks.

(ii) At approximately 12 noon, a police report was lodged on the discovery of the dead body. It was received by L/KPL Wan Amirullah bin W. Ahmad (SP4) as per police report TK Sengat/001130/1622.2.2016.

(iii) Investigation was conducted by the police. It revealed the following. On 29.11.2016 at about 11.00 pm, Mohd Asmadi bin Saim, SP10, received a phone call from the deceased. The deceased had requested to borrow a car, a red Perodua Alza bearing number JPX 2169 belonging to Raof bin Madari (SP9) for the purpose of celebrating his birthday. SP10 then drove the car and handed it to the deceased for his use.

(iv) After being invited by Siti Syariza binti Ibrahim (the 2nd accused), the deceased later drove the red Perodua Alza bearing registration number JPX 2169 to a house belonging to Zulkifli bin Atan at Kampung Melayu Majidee. The reason for the meet up between the deceased and the 2nd accused was to celebrate the deceased's birthday. Upon arriving at the roadside, the 2nd accused walked over to the deceased’s car. A silver Perodua Alza and a green Proton Satria then blocked the deceased’s car.

Mohd Zulheaffes (SP20) alighted from the green Proton Satria while Abu Bakar (the 1st accused) alighted from the silver Perodua Alza. The 1st accused proceeded to punch the deceased who was still seated in the driver’s seat of the red Perodua Alza. Subsequently, all three cars left the location and the deceased was taken away by the 1st accused who drove the red Perodua Alza together with the 2nd accused.

(vi) They made their way to Md Ropi bin Putih’s house which was located at Kampung Melayu Pandan at 12.00 midnight. There, the deceased was beaten up by the 1st accused before he was taken to another location.

(vii) At about 1.00 am to 2.00 am on 30.11.2016 the deceased was taken in the red Perodua Alza to Norhisham bin Mohd Ariffin’s (SP7) neighbourhood in Kampung Melayu Pandan. There, the deceased was beaten by the 1st accused, Md Ropi bin Putih and Mohd Najib bin Zohari (SD5). They used their hands, legs and a hammer to hit and kick the deceased. At that time the deceased’s body was covered with blood.

(viii) At around 5.00 am on 30.11.2016 the deceased was taken to Sungai Papan, Kota Tinggi in the silver Perodua Alza which was driven by SP20 together with the 2nd accused. The 1st accused then brought all of them to an unnumbered hut next to a shrimp pond at Kampung Muhibah in Kota Tinggi. Before the deceased was taken into the hut, the deceased was beaten again by the 1st accused. Inside the said hut, the first accused and Mohd Fardli Johana (SP21) had punched the deceased while wearing boxing gloves.

(ix) Subsequently, the deceased was taken to a chicken coop located next to the hut. The deceased’s wrist and legs were tied against the chicken coop’s wall. The deceased was then left in the chicken coop. On 30.11.2016 at approximately 11.00 pm, when SP21 went to check on the deceased, SP21 believed that the deceased had died. SP21 informed the 1st accused about the deceased’s lifeless body. This led to the 1st accused and Mohd Ropi bin Putih checking on the deceased’s condition inside the chicken coop.

The 1st accused ordered the disposal of the deceased’s body. The disposal of the deceased’s body was carried out by the first accused, SP21, Rafi bin Husin (Cik Rat), Abang Pian and Yoi. The body of the deceased was wrapped with green coloured fencing wire with several bricks placed onto the deceased’s body.

(xi) On 1.12.2016 at 3.00 am, the body of the deceased was taken into the red Perodua Alza driven by SP21 and accompanied by Siti Norsiah (SP12). Meanwhile, Abang Pian together with the 1st and 2nd accused used the silver Perodua Alza. Cik Rat and Yoi rode a motorcycle. All of them made their way to the Tanjung Buai Jetty.

(xii) On 1.12.2016 at about 4.00 am, all of them arrived at the Tanjung Buat Jetty. The 1st accused went to look for a boat. Upon securing a boat to be used, the 1st accused, Abang Pian and Yoi carried the body of the deceased into the boat. They subsequently went to the middle of the sea and dumped the deceased’s body near the area where the deceased’s body was discovered.

(xiii) Later, the 1st accused instructed SP21 to dispose of the red Perodua Alza. SP21 then took the red Perodua Alza into an oil palm plantation in Kampung Muhibah and left the car there at about 12.00 am on the same day.

(xiv) The Pathologist Dr. Rohayu binti Shahar Adnan (SP25), who conducted the post-mortem confirmed that the cause of death of the deceased is by “Blunt Force Trauma to the Chest with Ligature Strangulation”. FINDING OF THE LEARNED TRIAL JUDGE AT THE END OF THE PROSECUTION’S CASE [11] The learned trial judge upon a maximum evaluation of the prosecution’s case found that the prosecution had succeeded to establish a prima facie case against both the accused upon the charge levelled against them and ordered them to enter their defence. The learned trial judge at paragraphs 91, 93, 94, 97, 106, 107, 108, 110, 118, 119 and 123 and 124 of the Grounds of the Judgment stated as follows: - At paragraph 91: “[91] The prosecution is required to prove only one of these four limbs for purposes of proving that the accused had committed murder under section 302 of the Panel Code. In this case, the prosecution is relying on section 300 (c) of the Penal Code;” At paragraph 93: “[93] The facts from the case indicate that the three ingredients are satisfied. As the three ingredients are satisfied, the fourth ingredient is subjective and the intention at the accused persons is immaterial. SP25 gave evidence that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death”. At paragraph 94: “[94] Moreover, from the nature of the injuries sustained by the deceased, it can be deduced that both the first and second accused intended to inflict injuries on the deceased, it can also be reasonably concluded that injuries sustained were also deliberately inflicted and not accidental.” At paragraph 97: “[97] Under the circumstances of this case, death was probable Therefore, this court finds that the prosecution had proven the special degree of men’s rea against the first and second accused with respect to the charge of murder. This was not a case of culpable homicide therefore under section 299 of the Penal Code.” At paragraph 106: “[106] The facts of this case disclose that the first accused and directed the second accused to invite the deceased out to celebrate the deceased’s birthday. When the deceased arrived at the place of meeting, the second accused had entered into the deceased’s car while the first accused approached the deceased and hit the deceased.” At paragraph 107: “[107] Subsequently, the first accused drove the deceased’s car to Abang Pi’s house. The second accused contacted SP20 as instructed by the first accused to take the deceased to Kota Tinggi.” At paragraph 108: “[108] The facts further reveal that the second and SP20 took the deceased to Sungai Papan in the silver Perodua Alza. SP12 saw the second accused scolding the deceased for informing the first accused about their relationship.” At paragraph 110: “[110] Hence, based on the evidence before this court, the court finds that there was common intention on the port of the first and second accused.” At paragraph 118: “[118] Another witness, SP20 gave evidence that the first accused and Kentang told him that the reason for the incident was the “scandal” between the deceased and the second accused. “Scandal” here meant that the deceased and the second accused had a relationship. SP21 too stated that the first accused had informed him that the deceased had disturbed his wife, the second accused.” At paragraph 119: “[119] This court finds that there is evidence to support the prosecution’s contention of the motive of the crime, that is the deceased had a sexual relationship with the second accused.” At paragraph 123: “[123] From the available evidence, this court finds that there was a prior preparation and a common intention between the first and second accused to cause injury to the deceased from the time they arranged for the deceased to come to the first location at Kampung Melayu Majidee until the body of the deceased was disposed of at sea.” At paragraph 124: “[124] Such meeting of minds continued throughout until the deceased was taken to the unnumbered hut in Kampung Muhibah, Kota Tinggi where the deceased was found dead. This court therefore finds that the prosecution had proven common intention under section 34 of the Penal Code on the part of the first and second accused to commit murder.” THE DEFENCE [12] The 1st and 2nd accused respectively give evidence on oath and posited that:

the first accused was not the only person to cause injury to the deceased. There were others who had beaten up and punched the deceased, including SP21. According to the first accused, the deceased died due to a lack of oxygen to the brain. This strangulation (jerutan) on its own could have caused the death of the deceased. There was no evidence to prove that the 1st accused had strangulated the deceased. The 1st accused further stated that the items such as the hammer and “buku lima” were not recovered. He had also stated that he and the 2nd accused had left the unnumbered hut at about 12.00 noon. At that time the deceased was still alive. At about 10.00 pm, they returned to the unnumbered hut and at about 11.00 pm the deceased was found dead.

No one saw or witnessed the 2nd accused to cause the “blunt trauma to the chest with ligature strangulation “which is the cause of death of the deceased”. There was no evidence to show that the 2nd accused had caused the strangulation which resulted in bruises on the neck of the deceased. She had merely telephoned the deceased to invite the deceased to celebrate his birthday. Her presence at the unnumbered hut on 30.11.2016 was because she had followed her husband, the 1st accused to the place at the unnumbered hut between 7.00 am and 12.00 noon. She was chatting with SP12. They had lunch together with the food provided by SP4 and one person called Kentang. She did not know what happened to the deceased in the chicken coop. She did not dare to involve herself in the 1st accused and the deceased’s affair. Thus, all in all, her presence at the unnumbered hut did not demonstrate any common intention. More importantly, she did not have any motive to kill the deceased. THE DECISION OF THE LEARNED TRIAL JUDGE AT THE END OF THE CASE [13] The learned trial judge found that the defence by both the accused was, in totality, not credible. In sum, no reasonable doubt was raised. Hence the conviction and sentence. THE APPEAL BEFORE US [14] Learned counsels regaled us with several grounds in support of the appeals. We believe that we are doing no injustice to counsels by summarising their submissions as follows: -

Motive of the 1st accused beating up the deceased that is, the sexual relationship at KSL hotel between the deceased and the 2nd accused, who is the 1st accused’s wife has never been established by the prosecution;

The learned trial judge had misdirected herself in respect of accomplice evidence;

The learned trial judge failed to consider that the circumstantial evidence presented by the prosecution was insufficient to prove the deceased’s death was caused by the 1st accused; and

The learned trial judge erred in the application of section 34 of the Penal Code in the present case. FIRST ISSUE: MOTIVE [15] Learned counsels submitted that SP13 was the only witness who gave evidence of the so-called scandal at the KSL Hotel. The relevant evidence adduced in court can be gleaned at page 366, RR Jilid 2(1) that: “S : Dan dalam pengetahuan memandangkan kamu kata kenal Iza dan Amy, ada tak dalam pengetahuan kamu punca Jerry (simati) dipanggil untuk datang malam itu? : Mungkin sebab Abang Amy dapat tahu cerita yang Iza ada pergi jumpa Jerry dekat hotel KSL tu. Masa tu Abang Amy dekat dalam penjara kan. To another question this witness answered as follows: : Dan peguam juga ada tanya kamu, sebelum ini kamu juga ada bagi tahu Amy nak jumpa Jerry malam itu tapi bila dipanggil Jerry mungkin tak akan datang. Ini kamu yang bagi tahu. Soalan saya, macam mana kamu tahu pasal benda itu, jawapan kamu sebab Jerry tahu sebab masa Abang Amy dekat dalam penjara dia ada rapat dengan Iza, dia tahu Iza ini isteri Amy, kalau dia buat macam itu mesti dia tahu sebab yang Abang Amy tak puas hati. Dan peguam juga cadangkan ini adalah andaian kamu sendiri dan kamu kata tak setuju. Kenapa tak setuju yang benda ini adalah andaian kamu? : Sebab saya pernah teman Iza sekali masa itu dekat KSL, dan dia nak jumpa Jerry masa itu Abang Amy dekat dalam penjara, jadi saya tahu yang mereka memang berkawanlah dekat luar. Dan ini bukan andaian sayalah mereka rapat ke apa. This evidence, it is submitted, is contradictory to the evidence given by SD2 at page 970 Jilid 2 (4) RR which we reproduce as follows: - : Sebelum kejadian ini bulan 11/2016 ini, ini saya nak rujuk kepada satu keterangan saksi pendakwaan sebelum ini, Adliza. Yang kamu panggil sebagai Ija (SP13). Dia kata kamu pernah bawa dia ke sebuah hotel KSL untuk berjumpa dengan Jerry. Apa yang kamu nak jelaskan di Mahkamah pada hari ini? : Ya, saya memang ada datang dengan Ija berjumpa Jerry di KSL tapi hanya di lobby sahaja. : Selain lobby ada jumpa mana-mana? : Tak pernah. : Pada waktu itu Jerry datang seorang diri atau pun? : Jerry dengan kawan perempuan dia bernama Siti Sarah. : Jadi apa kamu tahu tentang Siti Sarah dengan Jerry ini? Hubungan mereka? : Kawan perempuan Jerry. At page 752, Jilid 2(3) RR, SP26, when cross-examined stated the following: : Jadi hasil siasatan ASP, apa punca kepada berlakunya pembunuhan ke atas mangsa? : Hasil siasatan yang dapat saya simpulkan, punca pembunuhan ini adalah mengenai hubungan sulit simati dengan Siti Syariza sewaktu suaminya iaitu Abu Bakar Mohamad berada di lokap polis. And thereafter, at page 883 Jilid 2(4) RR: : Saya nak tanya ASP, aspek hubungan sulit ini ASP, siapa yang boleh sahkan perkara ini benar-benar berlaku ataupun tidak? : Untuk maklumat Yang Arif, hubungan sulit ini memang tak dapat disahkan oleh sesiapa. Namun begitu Yang Arif, ingin saya tambahkan… To a subsequent question at page 884 Jilid 2(4) RR, SP26 stated: : Ya itu kita tahu tentang mesej, dalam telefon bimbit samada ingin menjalinkan hubungan ataupun tidak, itu kita tahu. Soalannya ada tak apa-apa pengesahan dibuat oleh Siti Syariza tentang dakwaan mengenai hubungan sulit ini. Tidak ada kan? : Mohon sebentar Yang Arif. Dengan izin Yang Arif, memang tiada soalan tersebut ditanya kepada tertuduh B2. [16] In light of the above evidence learned counsel for the 1st accused submitted that the prosecution had failed to prove the alleged scandal was the motive behind the murder. This aspect, according to learned counsel, assumes great importance as the prosecution’s case is premised entirely on circumstantial evidence. [17] On this aspect of motive we should like to state that it is pertinent to understand that motives do not form part of an ingredient of an offence of murder under the penal code. Anyway, there is no magic to that concept. There are a plethora of cases which deal with motive in a criminal offence. In the classic case of R v Ball (1911) AC 46 Lord Atkinson stated: “Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to show that he entertained feelings of enmity towards the deceased, and this is evidence not merely of the malicious mind which he killed the deceased, but of the fact he killed him… Evidence of motive necessarily goes to prove the fact of the homicide by the accused as well as his “malice after thought” in as much as it is more probable that men are killed by those that have same motive to killing them by those have not.” [18] The Federal Court in the case of Pathmanabhan a/l Nalliannen v Public Prosecutor and Anor [2017] MLJU 257 made reference to Ratanlal & Dhirajlal’s Law of Crimes, with List of Malaysian Cases (24th Edition) at page 1391 and stated as follows: “[161] Ratanlal & Dhirajlal’s Law of Crimes, With list of Malaysian Cases, (24th edn.) Vol. 2, p. 1391 summarises the law on motive in the following words:

Motive is the ultimate end which a person hopes to achieve where as intention is the immediate effect of his act. Motive is something which prompts a person to form an intention. The motive behind a crime is a relevant fact on which evidence can be given. Absence of motive is also a circumstance which is relevant for assessing the evidence. Proof of motive satisfies the judicial mind about the authorship of the crime but the absence does not ipso facto result in the acquittal of the accused. Motive is not a sine qua non to prove the case of the prosecution. Absence of proof only demands deeper forensic search and cannot undo the effect of evidence if otherwise is reliable and sufficient. [162] In Molu v. State of Haryana AIR [1976] SC 2499, the Indian Supreme Court aptly observed: It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes, the motive is clear and can be proved and sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of eye witnesses is creditworthy and is believed by the court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant. [163] The Court of Appeal in Abdul Samad Edward v PP [2015] 4 CLJ 149 made similar remarks which read: Although motive was an important element to look out for when relying on circumstantial evidence to convict an accused. It was not in our view, and absolute must, in the sense that, an absence of an established “motive” would exculpate the accused from the charge proffered against him, notwithstanding all other evidence which points to the accused being guilty of the crime charged. [164] Similarly, Sinha J in Atley v. State of Uttar Pradesh AIR [1995] SC 807, 810 stated: Where there is clear proof of motive for the crime that lends additional support to the finding of the court the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. If the prosecution has proved by clear evidence that the appellant had reasons of his own for getting his first wife out of the way, that would have lent additional assurance to the circumstantial evidence pointing to his guilt. But he fact that the prosecution has failed to lead such evidence had this effect only that, the other evidence bearing on the guilt of the accused has to be very closely examined. [165] We wholly endorse the observations made above in that motive is an important factor but not an ingredient of an offence to be proved in cases which turn on circumstantial evidence as in the present case. That said, it does not mean that where evidence of motives is vague, non-existent or not clear, an accused is exculpated provide there is sufficient evidence pointing to his guilt. [166] Having considered the matter, we agree with the defence that evidence of motive as adduced by the prosecution is far from being satisfactory. At one stage, the prosecution contended that the unavailability of sufficient funds in the bank account of the first accused was the motive for the murder of Sosilawati and the three others. Later, the prosecution referred to the Penang land transaction as the motive behind the murder. In the circumstances, we hold that the evidence as regards motive is far too equivocal to be of any value. [167] However, as said earlier, motive may be helpful in assisting the court in coming to its decision but the absence of such evidence is not fatal to the prosecution case. (See: Bhikari Behera v. State of Orissa [1995] Cri LJ 2998, 3000 (Ori); and Rangi Lal v. State of Uttar Pradesh [1991] Cri. LJ 916,921 (All)).” [Emphasis added] [19] Reverting to the present case, the motive for the crime against the deceased as put forward by the prosecution is that the 2nd accused, who is the 1st accused’s wife had an affair with the deceased. [20] As alluded to earlier, the evidence showed that SP13 had gone with the second accused to KSL Hotel to meet the deceased. She also gave evidence that she heard a conversation between the two accused where the 1st accused instructed the 2nd accused to telephone the deceased on the night of 29.11.2016 requesting the deceased to pick up the 2nd accused for a meeting at the place where they eventually met. According to SP13, it seemed as though she intended to “bait” the deceased to come to the place. [21] We have carefully gone through the notes of the proceeding and we find that the learned trial judge has considered the entirety of the evidence presented by the prosecution as well as by the defence. It is not out of place for us to state that the narrative as regards the motive offered by the prosecution is not inherently incredible so much so that no person would entertain the thought of it being true. It is not in dispute that the 2nd accused met the deceased in a hotel and that incident occurred when the 1st accused was away, being detained by the authorities. From the evidence it is not inherently incredible that this is a crime of passion; where jealousy and fear of losing one’s, wife combined provided the much needed spark to combust the rage that the 1st accused had exhibited through the physical action against the deceased. It is not in dispute that the 1st accused has physically assaulted the deceased. In addition, a proper evaluation of the evidence, especially that of SP12, SP17, SP20 and SP21 clearly established that the 1st accused was the person in command. His every instruction was adhered to by the others present at relevant places. In our judgment, there is no merit in this argument on the absence of motive and proof thereof. Issue II: The Accomplice Evidence [22] Counsels for both the accused submitted that the evidence of SP20 and SP21 (who were initially charged with both the accused but have since pleaded guilty and have been sentenced for an offence under section 201 of the Penal Code) have been improperly assessed and relied upon to secure the conviction. Learned counsels submitted that these witnesses were, in law, the accomplices. They must be treated as such. [23] On this issue, we find that the relevant provision to be considered is section 133 of the Evidence Act which states: “133. An accomplice shall be a competent witness against an accused person; and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.” [24] It is evident before the court that SP20 and SP21 had admitted in their evidence that they too had beaten up and punched the deceased. However, they have done that on the instructions of the first accused. [25] It is our considered view that the law on accomplices is well settled. In the case of Harchan Singh & Anor v PP [2005] 1 CLJ 11 Augustine Paul JCA stated the following: “In commenting on the significance of the need for corroboration with regard to the identity of the accused Sarkar on Evidence, 15th edn. Vol. 2 says at p.2105: “It is an established rule of practice that an accomplice must be corroborated by independent evidence as to the identity of every person whom he impeaches. The accomplice may know every circumstances of the crim, and while relating all the other facts truly, may in order to save a friend, or gratify an animosity, name some person as one of the criminals who was innocent of the crime (Rv. Krishna Bhat, 10 B 319; see also R v. Malapa, 11 BHC 196; R v. BudhduNanku, 1 B 475).” [26] In brief, the evidence of an accomplice must be corroborated. In Bhuboni Sahu v The King AIR 1949 PC 257, the classic case, Sir John Beaumont speaking for the Board described that requirement as a rule of prudence. [27] The learned trial judge, in this case had ruled that SP20 and SP21 were accomplices. We find no fault with that. SP20 and SP21 witnessed the 1st accused beat up, punched and hit the deceased and both knew the reason why the deceased was beaten up by the 1st accused. SP20 and SP21 too were involved in the act of beating up the deceased. [28] Upon perusal of the evidence of SP20 and SP21, we agree with the learned trial judge finding that there is no evidence that SP20 and SP21 were concocting stories about the events that transpired leading to the death of the deceased. It is also to be noted the evidence of SP20 and SP21 were corroborated by SP12, SP13 and SP17. [29] We also noted that the learned trial judge had traversed the issue of an accomplice in her grounds of judgment. Among others, the learned judge ruled that SP12 gave independent corroboration of the evidence of SP20 and SP21. SP12 was at the unnumbered hut with SP21 and the 1st and the 2nd accused. She knew that the body of the deceased was thrown into the sea. SP12 also together with SP2 went to Tanjung Buai Jetty to dispose of the body of the deceased and she also knows that the body of the deceased was rolled up in a green coloured fencing wire. [30] Then there is also the evidence of SP13, who heard the 2nd accused making a telephone call to the deceased and witnessed the argument between the deceased and the 1st accused. SP17 too provides crucial evidence where there is the ocular evidence of the first accused instructing the deceased to take off his clothes until the deceased was left in his underpants and his socks. SP17 saw the deceased covered in blood when he asked the 1st accused and the others to move away from his house. [31] In gist, we find that the learned trial judge is correct in holding that the evidence of SP20 and SP21 is corroborated in material particulars. [32] We have also given careful attention to the assessment of the evidence, in terms of credibility and weight to the given to the evidence of SP20 and SP21. Whilst we noted the learned trial judge had the audio-video advantage of assessing the witness in terms of their credibility we find that the learned trial judge had not made any adverse remarks so as to shake the credit of the witnesses. Before us too learned counsels have not pointed to us with some degree of conviction as to why the credit of the witnesses should be seriously cast and/or that no weight should be given to their evidence. [33] In the upshot, we find that the issue of accomplice raised by the learned counsel for both the accused is untenable. Issue 3: The Learned Trial Judge Failed to Consider That the Circumstantial Evidence Presented by The Prosecution Was Insufficient to Prove the Deceased’s Death Was Caused by The First Accused [34] We have analysed the totality of the evidence before the court and the grounds of judgment of the learned trial judge. We agree with the trial judge’s finding that there is direct and circumstantial evidence in the present case. [35] In respect of direct evidence. it is without doubt that SP12, SP16, SP17, SP20 and SP21 saw the 1st accused beat up, punched and hit the deceased. It is apparent that the evidence disclosed that the deceased was taken to five locations and beaten up. The first location was at Kampung Melayu Majidee on 29.11.2016 at about 11.00 pm. There the deceased was punched several times by the 1st accused while seated on the driver’s seat of the red Perodua Alza and that witnessed by the 2nd accused, who we noted had not raised any objection, must less resistance against the physical violations committed by the 1st accused on the deceased’s person. At about 1.00 am, 30.11.2016, the deceased was taken to Kampung Melayu Pandan to Md Ropi bin Puteh’s house. Upon arrival at about 2.00 am at Kampung Pandan next to the house of SP16 and SP17, SP16 saw the first accused, Md Ropi bin Puteh hit the deceased with a hammer, whilst Mohd Najib bin Zohari kicked and punched the deceased. Subsequently, SP17 came out of his house and spoke to the 1st accused to take the deceased from the area of his house as SP17 did not want his family to be involved in this incident. The 1st accused then asked SP20 to take the deceased from the area near SP16 and SP17’s house. At that time SP20 saw the deceased’s head covered in blood and the deceased was weak and could not walk on his own. At about 5.00 am, the deceased was put at the back of the silver Perodua Alza and SP20 drove the deceased to the unnumbered hut at Sg. Papan, Kampung Muhibah, Kota Tinggi while the 2nd accused was seated in the front passenger’s seat of the silver Perodua Alza. At about 7.00 am, the same day at an unnumbered hut, the deceased was again beaten up and punched outside the hut using a “buku lima” or brass knuckles by the 1st accused, the suspect named Yoi and SP21. Subsequently, the deceased was taken to a chicken coop located next to the hut. The deceased’s wrist and legs were tied against the chicken coop’s wall. The deceased was left in the chicken coop. At about 11.00 pm SP21 went to check on the deceased. SP21 believed that the deceased had died. SP21 then immediately informed the 1st accused that the deceased had died. The 1st accused ordered the disposal of the deceased’s body. The deceased’s body was wrapped with green coloured fencing wire with several bricks placed on the deceased’s body. On 1.12.2016 at 4.00 am, the 1st accused, SP21, Rafi bin Husin (Cik Rat), Abang Pian and Yoi arrived at Tanjung Buai Jetty. Upon arrival, the 1st accused went to look for a boat and subsequently the 1st accused, Abang Pian and Yoi carried the body of the deceased into the boat and dumped the deceased’s body in the middle of the sea. [36] In respect of the circumstantial evidence, we found that there was unchallenged evidence that the 1st accused had made preparation to commit the offence. The evidence disclosed that the 1st accused had rented a Silver Perodua Alza which was later used. The 1st accused had instructed the 2nd accused to make the telephone call to meet up with the 2nd accused on the pretext of celebrating his birthday. [37] As we have stated earlier the pathologist Dr. Rohayu (SP25) having performed the post-mortem on the deceased on 5.12.2016 revealed that there were 32 marks of injuries on the body of the deceased as stated in the post-mortem report exhibit P72. [38] The evidence that we have summarised above showed clearly that the deceased suffered at the hands of the 1st and the 2nd accused and the other person, who is still at large. The involvement of the 1st and 2nd accused in the physical assault on the deceased’s person is clearly established by the direct evidence. In actuality, the 1st accused merely sought to water down his involvement by raising issues which in our view do not create any doubt on the case for the prosecution. [39] We agree with the learned trial judge that from overwhelming evidence the deceased had died as a result of the injuries sustained by him. The injuries sustained were also deliberately inflicted and not accidental (see Rajwant Singh v State of Kerala AIR [1960] SC 1874, Mohamed Yasin bin Hussin [1976] 1 MLJ 156). We are also satisfied that the learned trial judge is correct in law and in fact in finding that the elements of s.300 (c) have been fulfilled. Issue 4: Common Intention [40] Common intention under section 34 of the Penal Code is one of the ingredients of the charge. [41] It is trite that the burden to prove common intention is placed on the prosecution to show that the crime was in furtherance of the common intention which presupposes permutation or pre-concept of mind. Common intention is to be inferred from the facts and circumstances of each case when there is absence of direct evidence. (see Krishna Rao a/l Gurumurthi v Public Prosecutor & Another Appeal [2009] 3 MLJ 643). [42] Reverting to the present case there is an undisputed fact that the 1st accused had directed the 2nd accused to invite the deceased out to celebrate the deceased’s birthday. When the deceased arrived at the place of the meeting, the 2nd accused had conducted herself in the manner that we have described above. [43] Crucially, the 2nd accused contacted SP20 to take the deceased to Kota Tinggi. SP20 and the 2nd accused took the deceased to Sungai Papan in the silver Perodua Alza. SP12 saw the 2nd accused scolding the deceased for informing the 1st accused about their relationship. [44] We have carefully directed our attention to the 2nd accused’s role in this unfortunate incident. We agree with the learned trial judge’s finding that the 2nd accused had played an active role in the offence. In short, she is not merely a bystander. In actuality, she is an active participant who lured the deceased to the place where the brutal act began. She was present when the deceased was beaten up and during the disposal of the deceased’s body. We are conscious that the 2nd accused did not physically beat, punch or hit the deceased. That, in our judgment, cannot of itself exonerate or provide the 2nd accused with the silver bullet to demolish the aspect of common intention. In our judgment and here too we agree with the finding of the learned trial judge that other evidence as we have alluded above showed that there is a presence of a common intention occurring at the relevant time to commit murder of the deceased. We could sum up to say that without the involvement and active participation of the 2nd accused the crime could not have been committed in the way that it had. [45] As a result, no merit in the learned counsel’s submission on the absence of a common intention. [46] It is trite that at the end of the defence, section 182A of the Criminal Procedure Code imposes a duty on the trial court to consider all the evidence adduced and to decide whether the prosecution has proved its case beyond reasonable doubt. [47] As alluded to earlier that the first accused argued that the deceased died due to a lack of oxygen supply to the brain. The strangulation of the deceased on its own could have caused the death of the deceased and no evidence that the first accused had strangled the deceased. It was also argued that the items such as the hammer and brass knuckles or “buku lima” were never recovered. The 1st accused further said that when he left the hut the deceased was still alive and that we later turned up at the hut he found the deceased had died. This suggests therefore that there is a gap in the persecution’s narrative. [48] As for the 2nd accused, she argued that no one say she caused the blunt trauma to the chest with ligature strangulation which was the deceased’s cause of death. She said that she merely telephoned the deceased to celebrate his birthday. [49] Here we agree with the trial judge’s finding that the defence version of the events is nothing but a mere denial. We are of the view that the cumulative effect of the evidence enumerated above taken together clearly led to the conclusion that the 1st accused was the mastermind in this offence and that the 2nd accused actively participated in the commission of the offence in furtherance of their common intention. Therefore, we find no error in the learned trial judge’s finding that the defence had failed to raise reasonable doubt on the prosecution case upon the evaluation of the evidence in totality. CONCLUSION [50] For all the reasons adumbrated above, we found the conviction is safe. Hence, we unanimously affirmed the conviction and sentence meted out by the High Court and the appeals No. J-05(M)-445-12/2020 and J- 05(M)-446-12/2020 stand dismissed. We so order. Dated: 3 Mei 2023 -Sgd-AHMAD NASFY YASIN Judge Court of Appeal Malaysia Putrajaya COUNSEL/ SOLICITORS Appeal No. J-05(M)-445-12/2020 For the Appellant: Zahar bin Ngah Helmi bin Hassan and Norma Umairah (with him) (Messrs. Zahar & Partners (Johor Bahru)) For the Respondent: Mohd Mukhzany Fariz bin Mohd Mokthar Deputy Public Prosecutor (Attorney General’s Chambers) Appeal No. J-05(M)-446-12/2020 For the Appellant: John Fernandez Maithily Manoher (with him) (Messrs. R Muthu & Co. (Johor Bahru)) For the Respondent: Mohd Mukhzany Fariz bin Mohd Mokthar Deputy Public Prosecutor (Attorney General’s Chambers)