Suaib Bin Thandi v Pendakwa Raya (J-05(M)-329-09/2020 & J-05(M)-326-09/2020)

Suaib bin Thandi

Buhari bin Asmawin] 2 CORAM KAMALUDIN MD. SAID, JCA AHMAD NASFY YASIN, JCA HASHIM HAMZAH, JCA GROUNDS OF JUDGMENT Introduction

The Appellants appeal against the decision of the High Court judge (“the HCJ”) who convicted them for committing murder under section 302 of the Penal Code and sentenced to death.

The conviction against the Appellants was based on the circumstantial evidence led by the prosecution. The HCJ found the evidences are sufficient to call the Appellants to enter defence and having considered the defence evidence, the HCJ found the Appellants failed to cast reasonable doubt on the charge made against them.

The 1st Appellant (Suaib bin Thandi) and the 2nd Appellants (Buhari bin Asmawin) are represented by different counsels. The learned Deputy Public Prosecutor (DPP) is for the Respondent. The 1st Appellant is the 1st accused and the 2nd Appellant is the 2nd accused at the High Court proceeding.

In this appeal, the 1st Appellant’s Counsel raised 2 main grounds of appeal i.e. that the circumstantial evidence relied by the prosecution is weak or insufficient to call the 1st Appellant to enter 3 his defence and to find him guilty as such. The finding of prima facie case on the charge is wrong when the statements in the police report purportedly relied by the police as information leading to the discovery of weapons used during the murder of the deceased ought not to have been admitted as evidence under section 27 of the Evidence Act 1950. The 2nd Appellant’s Counsel also made the same complaint and adopted the submission of the 1st Appellant’s counsel and that the prosecution’s main witness SP 9’s evidence is not credible.

We heard the oral submissions and also read the written submissions of counsels for both the Appellants. The learned DPP has also made her submission and relies on her written submission. Having read the records of appeal and considered the grounds raised and the reply by the learned DPP, we find there is no merit in the appeal. There is no appealable error in the HCJ’s decision. We find the conviction against both the Appellants is safe. It is our unanimous decision that the appeal is dismissed and the decision of the HCJ is affirmed.

We give our reasons for dismissing the appeal. The Charge

The charge under section 302 reads together with section 34 of the Penal Code against the Appellants reads as follows- “Bahawa kamu bersama-sama antara jam 11.30 malam 29.9.2016 hingga 12.29 pagi 30.9.2016, bertempat di 4 Padang Bola, Blok 2, Jalan Mawar, taman mawar, 81700 Pasir Gudang di dalam Daerah Johor Bharu, di dalam Negeri Johor Darul Takzim, telah melakukan bunuh dengan menyebabkan kematian terhadap Amar Bin Miralde; No Sijil Kelahiran : SPA 4355/94 dan oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 302 KK dibaca bersama dengan seksyen 34 kanun yang sama.” Facts of the case

On 29.9.2016 at about 11.00 p.m. SP9 arrived at a park at Block 2, Taman Mawar alone in a Perodua Kancil to meet up with a friend. At the same time, the deceased made a telephone call to SP9 to ask where the latter was and not long after, the deceased arrived at the park where SP9 was waiting for his friend. While the deceased was looking at his hand phone, the 1st Appellant, who was also known as ‘Fogi’ and the 2nd Appellant, known as ‘Buhak’ who were both clad in sarongs, walked slowly while approaching them.

SP9 identified the 1st Appellant based upon his taller frame as compared to the 2nd Appellant. All of sudden the deceased cried out “Pak lari”. At that time SP9 saw the 2nd Appellant took out a “parang” from his sarong although he later said he was not quite sure where the 2nd Appellant took out the parang from. SP9 said that he saw the 1st Appellant also took out a parang. At that time SP9 told the deceased to run. SP9 ran toward the right direction 5 toward some nearby shops while the deceased ran towards the left in the direction of a football field.

As soon as SP9 reached the shops, he pleaded for his friends help to call the police. Not long after, SP9 said that a man on a motorbike asked him “bukan kau punya kawan tu yang gaduh sana?”. Upon hearing this, SP9 proceeded accordingly and within 10 minutes reached the area near the football field where he found many people there including the police.

After he was allowed access into the football field, SP9 saw a body in a supine position in an unconscious state and with wounds to the face and hands which he identified to be the deceased.

SP9 said that he knew the two Appellants because he lived near to the area where both the Appellants lived.

SP16 said that on 30.9.2016 at around 1.00a.m., he received instructions from the investigating officer (SP17) to go to the scene of the incident. While there, SP16 saw a body covered with cloth. He also saw members of the public and a team from the Police Forensics Unit there on duty. At around 6.30a.m. that day, SP15 and SP16 together with a team went to the address at 02-03, Block5, Taman Mawar, Pasir Gudang and knocked on the door of the house. After about 10 minutes, a female with Philippines citizenship opened the door.

SP15 and P16 saw a Filipino man saying his prayers in the living room. SP15 and SP16 and his team continued to search the whole 6 house. While conducting an inspection of the toilets, SP15 and SP16 saw a pair of legs dangling down from behind the water tank in the toilet located on top near the ceiling. When the police team managed to bring the person down from the water tank, they discovered there were in fact two persons hiding there. Both SP15 and SP16 identified the two men as the 1st and 2nd Appellants respectively in court. The police proceeded to arrest all the occupants of the said house

According to SP15 and SP16, as a result of interrogation carried out separately, both the Appellants gave information of where some clothing's and weapons were kept. Finding at the end of prosecution’s case

The High Court found both the Appellants had the requisite common intention under section 34 of the Penal Code to commit murder under section 302 of the Penal Code based on the evidence which can be summarised as follows-.

(i) The deceased was dead. This was confirmed by SP14 who performed the post mortem on the deceased. There were 2 wounds to the head region of the deceased that caused his death. The Appellants caused the injuries that led to the death of the deceased. SP9 also identified the deceased albeit from photographs shown to him in court.

(v) From the nature of the injuries sustained by the deceased including the weapons used to inflict those injuries, it can be concluded that the Appellants caused them with the intention of causing bodily injuries and such bodily injuries were sufficient in the ordinary course of nature to cause death in accordance with limb (c) to section 300 Penal Code.

(x) Drawing upon the circumstances as gathered from the testimony of SP9 and the incontrovertible fact that the deceased was found a short while later dead within the vicinity from slash wounds, it can be reasonably inferred that both the Appellants had formed a common intention to inflict injuries on both SP9 as well as the deceased.

The 1st Appellant’s defence is as follows-

(i) He resided in Pasir Gudang at Flat No.3, Taman Mawar in Johor Bahru (JB) where he lived together with persons named lndani, Toto and Sachim, and he does not recognize the name of Datu Karnu (SP9) but if he saw his face he may 10 be able to identify him. He knows SP9's name but he knew that he had an argument with his older brother named lndani. SP9 has a daughter and that lndani's son named Toto was proposing marriage to her. However, SP9 had requested for a higher dowry and this was the source of the differences between them. The relationship between PW9 and lndani was already strained even before the incident which resulted in the death of the deceased.

(v) He was only clad in a sarong and was not wearing any underwear and wore a shirt “baju Melayu”. It was impossible for him to run with the sarong without it falling down unless he held it up with his hand. This was why it was not possible for him to hold a weapon in his hand.

The 2nd Appellant’s defence is as follows-

(i) On 29.9.2019 while he was at his residence at Level 3, Block 3, Taman Mawar, Pasir Gudang, he heard the continuous sound of horning from a car coming from below. The person who sounded the car horn also was cursing as if he was not satisfied with something. He went downstairs to see what was happening and the 1st Appellant “Fogi” also went downstairs. 13

(v) Both he and the 1st Appellant then went to block 5 as they were afraid that SP9 and the other person would look for them again. They went to their friend's house at block 5 namely, Mat Jini. 14 Finding at the end of the defence’s case

The HCJ found the version of the defence as to the events on the day in question is diametrically opposed to the prosecution’s version. The defence contends that it was in fact SP9 and the deceased who gave chase to the two Appellants. The defence also portrayed the deceased and PW9 as the aggressors and further said that the Appellants could not have given chase as they were wearing sarongs so that it was not possible for them to have chased the deceased and PW9 while holding parangs without their sarongs falling off. It was also suggested that this was improbable because the Appellants said that they were not wearing any underwear.

Having considered both the versions given by the prosecution and the defence and having juxtaposed both, the HCJ found the defence version cannot be believed and neither does it raise a reasonable doubt in the prosecution’s case.

The HCJ found the plain fact of the matter is that the deceased died from slash wounds, the immediate cause of death being stated as being “slash wound to the head”. This was confirmed by SP14. The relevant question to be answered is how the deceased sustained these wounds.

The HCJ considered the issue raised by the defence that there being other persons possibly present that would suggest that the deceased was attacked by others and not the Appellants. The defence pointed out the presence of two helmets not far from the 15 deceased and a folded piece of paper also close by the deceased's body which they said indicated the presence of others as neither the two Appellants or SP9 and the deceased wore helmets. The HCJ held that in the absence of anything more, the presence of the helmets and the piece of paper do not reasonably give rise to the inference that others were present.

The cogent testimony of SP9 indicate that it was the Appellants who gave chase to him and the deceased. There were no other eye witnesses to the fact that the death of the deceased might have been caused by persons other than the Appellants.

There was also no evidence that the belt with the metal buckle allegedly carried by the deceased was ever found in the vicinity of the flats or at the scene of the incident. All the circumstances point to the fact that it was the Appellants and not SP9 or the deceased who possessed the weapons.

The version by the defence under all the circumstances do not therefore raise a reasonable doubt as to their guilt. The defence has therefore failed to raise a reasonable doubt in the prosecution’s case. The prosecution has succeeded in proving their case against both Appellants beyond a reasonable doubt in respect of the charge as proffered, and the High Court therefore convicted both Appellants. 16 The appeal

Both counsels for the Appellants argued that the conviction against the Appellants is not safe on grounds that here was no maximum evaluation on the Prosecution’s case and the evidence leading to discovery pursuant to section 27 of the Evidence Act, 1950 is inadmissible.

It was submitted that had the HCJ thoroughly assessed the evidence he would have found that there was break in the chain of circumstantial evidence and that reliability of the important Prosecution’s witnesses was doubtful, hence no prima facie. According to counsel, firstly, there was no eye witness to the incident. At the most the Appellants were allegedly seen chasing the deceased allegedly with a parang. Secondly, no witness was called to testify on the subsequent event. The evidence was therefore circumstantial in nature. It was submitted that the evidence was not sufficiently strong to connect the Appellants to the deceased’s death.

At the trial before the HCJ, an issue was raised on the discovery of two crash helmets and folded newspaper. The two crash helmets marked as P 14(1)(A) and P14(2)(A) and the folded paper marked as 12(2)(A). The HCJ held that mere presence of the two helmets does not, in the absence of anything more, lead to the conclusion that there were others involved in the act. It was argued that the finding could not be sustained. The HCJ should have asked himself what the two helmets were doing in the field rather than dismissing it outright. It was only reasonable to say that the two helmets would 17 not land in the field without somebody bringing and leaving it there. It was submitted that the only reasonable inference was that someone must have been at the scene that night. Further, the folded paper 12(2)(A) was equally important piece of evidence. Unfortunately, it did not impress the HCJ by holding that the defence submission was speculative was untenable. It was submitted that from the photograph (P5(14)) at pg. 748 vol 3 AR it could be said that the paper was folded in such a way that it was to be used to sheath a knife or blade. Again, somebody must have brought it there. And that person must have been present at the field that night. It would be reasonable to infer from these set of fact that there could be more than two weapons used and a number of individuals involved.

It was submitted that the evidence of the DNA chemist that the deceased’s blood stain was found at the handle of the parang (P12(3)(A) (pg. 203 vol 2 AR) cannot be correct. Logically if the parang was used to slash the deceased his bloodstain would have been found on its blade. Therefore, it would be reasonable to say that the deceased, during the incident, was the one holding P12(3)(A). Another parang (P15(1) was found. It didn’t bear the Appellants’ DNA. No stain of the deceased’s blood was found either. Again, it would be reasonable to say that the Appellants had no connection with this parang.

Based on the above submissions, it was submitted that the fact is consistent with other hypothesis other than the Appellants culpability. With these unsatisfactory features it could not be said 18 the strand of circumstantial evidence was strong enough to point to their guilt.

It was also submitted that SP9 was the only witness who last saw the Appellants as well as the deceased. He said that night the deceased met him when suddenly they came and chased him. Both SP9 and the deceased ran a separate direction. He was then told by a person unknown to him that something happened to his friend and later was brought to the scene by that person. What was strange here was how did the person know SP9 was related to the deceased when that person was stranger to SP9? SP9 ran towards a restaurant and stayed there. He came to the scene only after police was there. It was quite unbecoming of a person to leave his close relation unassisted. At least SP9 should have looked for the deceased. He did not visit the deceased at the hospital neither did he lodge a police report He changed his version in regards to whether he saw the incident. In examination in chief SP9 said he did no see what happened at the scene (pg. 233 vol 2 AR). In cross examination he said otherwise (pg. 272 vol 2 AR). SP9 was inconsistent. His evidence was not inspiring confidence. His evidence should have been rejected. If at all SP9 could be believed at the most the Appellants seen chasing the deceased with a parang. There was no evidence on the subsequent event. With the existence of the crash helmets and the folded paper, the evidence that the Appellants were chasing the deceased was insufficient to relate him to the deceased’s injuries. 19

The other point is that the Appellants were found hiding inside the bathroom when the arresting team came. It was submitted that merely because they were trying to avoid arrest does not necessarily mean they had connection with the incident. It could possibly be due to his status as an illegal immigrant.

It was also argued that the statements in the police report purportedly relied by the police as information leading to the discovery of weapons used during the murder of the deceased under section 27 of the Evidence Act 1950 is inadmissible. The HCJ ruled that the information obtained from the accused persons that led to the discovery of some clothing and weapons was admissible. To be specific those items were Paul Smith shirt P12

It was submitted that the HCJ sieved the alleged information and admitted certain portion of it. HCJ’s ruling was at pg. 41 vol 1 AR:- “(86) I have however only taken into account the above wordings “saya boleh tunjukan dimana saya simpan pakaian dan senjata” or “I can show you where I kept the clothing’s and weapons” for the purposes of section 27 of the Evidence Act 1950 (“EA‘) and not the words “yang saya gunakan pada hari hejadian” or “I used during the incident” because I find that the additional words do not distinctly relate to the discovery of the items recovered under section 27EA”

HCJ relied on this section 27 information to infer that the Appellants were responsible for the deceased’s injuries (pg. 55 vol 1 AR). It was submitted that HCJ was wrong in admitting the S 27 information. The reasons being that the propriety of the information was doubtful and the information was a joint statement.

Two police reports were lodged on the 30.9.2016 by both SP15 and SP16 respectively. They were marked as P37 and P44 (pg. 827 and pg. 834 vol 3 AR). Both reports were made almost at the same time. Subsequently on the same date another police report marked as P45 (pg. 835 vol 3 AR) was lodged by SP16. The three reports contained the purported discovery information from the 2nd 21 Appellant and the 1st Appellant. P44 was in relation to the information from the 2nd Appellant while P37 was in respect of the information from the 1st Appellant. The contents of both P37 and P44 were identical. The essential part of both reports read as follows: - “...Tuan saya boleh tunjukkan dimana saya simpan pakaian dan senjata yang saya gunakan pada hari kejadian. Kemudian saya jadikan pengakuan ini sebagai satu laporan.”

The Appellants contended that section 27 Evidence Act 1950 only allows first information that distinctly relates to the discovery. Therefore, an information obtained from a joint statement or same statement from more than one person cannot be admitted. The judicial statement in Govind Krishna Jadhav v State of Maharashtra (1980) 82 BOMLR 173 pronounced that: - “The joint statement is a statement made by two persons simultaneously. Such a situation is practically inconceivable especially with reference to section 27 of the Evidence Act. Two or more persons cannot in chorus make a statement contemplated by section 27. A joint statement must in practice mean the same statement or similar statements made by two or more persons. In such a case only, the statement which is made earlier and which leads to the discovery will be admissible under section 27 of the Evidence Act and the subsequent statement or statements will not be” 22

lt is only the first statement that is admissible. The Federal Court in Md Desa Bin Hashim v PP (1995) 3 MLJ 350 is categorical on this:- “Therefore, in a case where the accused makes more than one statement in relation to the whereabouts of a particular thing, it is only the first statement that is admissible, the second is not”

It was submitted that in this case, two identical statement were made by both the 2nd Appellants and the 1st Appellants. If the time the statement was given is considered, their statement would be inadmissible.

Further, the police report P45 was in relation to the discovery of the two parangs. Both the 2nd Appellants and the 1st Appellants allegedly gave the information leading to its whereabout. It was made jointly. The relevant statement in P45 is reproduced as follows: - “kedua-dua OKT penama Suaib dan tangkapan penama Bukhari telah menunjukkan kepada saya - tuan itu parang - lalu saya bertindak membuat pemeriksaan dapati terdapat dua bilah parang.”

Based on Govind Krishna (supra) and Md Desa (supra), the Appellants submitted that the information was inadmissible as it could not be identified who gave the first information. Apart from the fact that they were both identical the same officer (D/SJN 23 127297) was present at both interrogation places at the same time which did not sound logical and there were contradictions in the discovery statement. It was further submitted that both SP15 and SP16 gave differing version in regard to the manner the 2nd Appellants and the 1st Appellants pointed out the place. It is the requirement of the law that the statement must be exact (Hasamuddin Talena v PP (2002) 2 CLJ 504). The evidence given by SP15 and SP16 are shown to us as follows: - At pg. 365 vol 2(1) AR SP15 said: - “S: Pada waktu tersebut, bagaimana keadaan kedua-dua tangkapan ini? Kedua-dua tangkapan ini bergari. Inspektor nyatakan ya, kedua-dua tangkapan ini telah bawa ke tempat tersebut ya kemudian menunjukkan ya tempat itu. Macam mana mereka tunjuk? Gesture. Melalui muka dan tangan” At pg. 450 vol 2(1) AR, SP16 said: - “S: Apa yang kamu nampak. Satu kawasan semak, ditumbuhi pokok Tuan. Apa berlaku disitu? 24 Sampai disana, kedua-dua suspek ini beritahu kepada saya bahawa “itu parang” sambil ditunjukkan kepada saya ke arah semak dibawah pokok tersebut.”

In view of these unsatisfactory features the HCJ ought to exercise his discretion to exclude the statement (Goi Chine Aug v PP

There was no evidence given on the information that caused the discovery of the clothes and the parangs. What appeared to be the evidence, as admitted by the HCJ was “saya boleh tunjukkan dimana saya simpan pakaian dan senjata” without more. It was submitted that such evidence had only little value and of no effect unless the discovery was accompanied with such evidence. (Tai Chai Keh v PP (1948-49) MLJ Supp 105; PP v Khoo Boo Hock & Anor (1990) 2 CLJ (rep) 716).

In conclusion, both the Appellants submitted that the conviction was unsafe. The Appellants pray that the conviction and sentence be set aside.

In reply, the DPP submitted that the HCJ has made a correct finding of prima facie case on the charge of murder under section 302 of the Penal Code against the Appellants. The evidence tendered by the prosecution is circumstantial in nature however, the narrative of the prosecution and the evidence by witnesses showed sufficient link to the Appellants with the death of the deceased. 25

It was also submitted that the HCJ has carefully considered the Appellants’ defence in compliance with section 182 of the Criminal Procedure Code. The whole defence evidence given during the full trial was produced and duly considered. This can be seen from paragraphs 165 to 216 in the grounds of judgment of the High Court (at pg. 72-85 of RR (Vol1). The entire defence evidence has been analysed by the HCJ. This is found at paragraphs 221 to 272 in the grounds of judgment of the High Court (at pg. 87-101 of RR (Vol1).

It is not disputed that the evidence by the prosecution main witness in SP9 has been carefully scrutinized by the HCJ and SP9’s evidence is accepted as credible evidence. SP9’s evidence has been evaluated in great length and considered by the HCJ. The Appellants’ counsels attempted to challenge the credibility of SP’s evidence in this appeal. The DPP submitted that since the HCJ is the trial judge who have the audio & visual advantage to see the demeanour of the witnesses, and made a finding that SP9 is a credible witness, an appellate court should be slow to interfere or disturb such finding. SP9’s evidence must be accepted as conclusive of the narrative given leading to the death of the deceased.

The HCJ has considered the Appellants’ defence and made a finding that the defence by the Appellants that the deceased was the “aggressor” contradicts SP9’s evidence that the Appellants chased after him and the deceased with “parangs”. Thereafter, the deceased was found dead with several wounds inflicted on his body. This is confirmed by SP14 that the deceased cause of death 26 is “slash wound to the head”. The evidence is very clear showing the deceased was not the person who has attacked the Appellants as portrayed in the Appellants’ defence.

The DPP also submitted that the Appellants’ defence in the trial is not “self-defence”) though they contended that the deceased was the one who attacked them. The injuries on the deceased which caused his death does not show that the injuries suffered were due to an act of attacking the Appellants. The evidence by SP14 who is as an expert witness, her evidence has not been rebutted or cast any doubt by the Appellants.

On the issue of evidence under section 27 of the Evidence Act 1950, the DPP submitted that the evidence is relevant which was correctly admitted and accepted by the HCJ. It was also submitted that the same issue has been raised before the HCJ and was considered. This can be found at paragraph 77 to 99 in the grounds of judgment of the HCJ. The HCJ has applied the correct principles of law pronounced in the case laws cited in the judgment. The HCJ has made a correct finding on the admission of the statements under section 27 of the Act and there is no reason to disturb his finding.

The Appellants argued that there is no clear information or specific given by the Appellants in exhibits P37 & P34 to be classified as information under section 27 of the Act. There is another issue raised by the Appellants, that there are 2 information in 2 police reports which resulted in “joint statement” and this does not comply with section 27 of the Act. 27

The DPP submitted that the Appellants’ submission is untenable and without merit. It is very clear that exhibits P37 & P44 though the exhibits did not specifically state or mention what were the words told by the Appellants to SP15 and SP16, it does not prejudice the evidence on the discovery of the clothes and the weapon ‘parang’ which are relevant evidence under section 27 of the Act relying on the Federal Court’s case of Amathevelli P Ramasamy v PP [2009] 3 CLJ 109.

In conclusion, it was submitted that there is no appealable error in the judgment of the HCJ. The conviction against the Appellants is safe. The DPP prays that the Appellants’ appeal is dismissed and the decision by the High Court is affirmed. Our decision

We have considered the submissions of the Appellants and the Respondent oral and written and read the grounds of judgment of the HCJ. The facts of the case as stated in the grounds of judgment at paragraphs 1 to 30 are not disputed. The narrative of the prosecution case that there were no eye witnesses to the killing of the deceased, the evidence against the Appellants are circumstantial in nature.

In the grounds of judgment, the HCJ has applied the correct principle of law relating to circumstantial evidence. It is correctly stated that the law is such that although a conviction can be sustained by reliance on circumstantial evidence, it must admit of 28 no other possibility other than that it was the accused or accused persons who committed the murder. Where the evidence is of a circumstantial nature, the burden upon the prosecution is a very heavy one and that evidence must point irresistibly to the conclusion of the guilt of the accused and if there are gaps in it, then it is not sufficient [Public Prosecutor v Azilah Hadri & Anor [2015] 1 CLJ 579; Yii Soon Ho v Public Prosecutor [2014] 1 LNS 386; Sunny Ang v Public Prosecutor [1965] 1 LNS 171; Public Prosecutor v Magendran Mohan [2005] 3 CLJ 592; Chang Kim Siong v Public Prosecutor [1968] 1 MLJ 36 ].

The HCJ has made a finding that the narrative of prosecution case pointed towards the 1st and 2nd Appellants who committed the murder. The finding is based on the evidence of SP9 which has been carefully analysed by the HCJ at paragraphs 60 until 69 and other witnesses at paragraphs 70 until 76 in the grounds of judgment. It cannot be denied that SP9 was the last person who saw the deceased. The Appellants was seen taking out ‘parang’ and charging towards the deceased. The Appellants contended that in examination in chief SP9 said he did no see what happened at the scene and in cross examination he said otherwise. SP9 was inconsistent and further, there was no evidence on the subsequent event.

In our view, even though, SP9 did not really see the Appellants had caused injuries to the deceased with the ‘parang’, what is very clear is that there were no other persons around that area where SP9 and the deceased met. The Appellants came towards SP9 and the deceased and both SP9 and the deceased ran away in opposite 29 directions before the deceased was found lying covered in blood with several slash wounds inflicted on him. The evidence by SP9 is admissible as it is so closely connected with the fact in issue (the murder of the deceased) as provided under section 7 of the Evidence Act 1950 i.e. facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity of their occurrence or transaction, are relevant.

The Appellants also contended that with the existence of the crash helmets and the folded paper (Exhibits P14(1)(A) and P14(2)(A)), in the field approximate to the place of incident, the evidence that the Appellants were chasing the deceased was insufficient to relate him to the deceased’s injuries. The HCJ has made his finding on this issue and held that the mere presence of the two helmets does not, in the absence of anything more, lead to the conclusion that there were others involved in the act. To the contrary there was direct and cogent evidence from SP9 that he and the deceased were chased by the Appellants brandishing parangs. (See: paragraph 151 in the grounds of judgment). In fact, the HCJ has considered the issue of the presence of helmets and the folded paper at paragraphs 149 to 155 in the grounds of judgment. The HCJ concluded that the submission by the defence to be speculative and based on conjecture. The mere fact that a piece of paper happened to fit the shorter parang does not necessarily equate to there being another weapon used (at paragraph 154). 30

It is also noted that the HCJ has considered the post mortem report conducted by SP14 i.e. that there were more than 10 slash wounds to the deceased including to the head of the deceased. The cause of death was confirmed by SP14 to be “slash wound to the head which injuries are consistent with SP9’ evidence that the Appellants who had attacked the deceased with the ‘parang’ contrary to the defence story that the deceased was the aggressor which SP9 denied. The HCJ has considered this fact and made his finding at paragraph 70 to 73 in the grounds of judgment inter alia that the circumstances unmistakably show that the accused person were the aggressors and this resulted in the death of the deceased. He found the deceased was the victim and not the aggressor as suggested by the defence. The nature of the injuries leading to the deceased’s death also puts paid to the submission by learned counsel of the 1st Appellant that the helmets found in the vicinity where the deceased’s body lay in the field was of any significance.

The evidence is also clear that the Appellants were hiding behind a water tank in the toilet of house No. 02-03, Block 5, Taman Mawar, Pasir Gudang when they were arrested by SP15 dan SP16. The Appellants refused to surrender themselves until some force were used to affect the arrest. We agree with the HCJ that such act falls under section 8 of the Evidence Act 1950. The HCJ has considered that Section 8 of the Evidence Act 1950 applies.

The Federal Court in the case of Parlan Dadeh v PP [2009] 1 CLJ 717 held as follows- 31 “[28] Evidence of conduct is admissible under s. 8 of the Evidence Act 1950 (“s. 8”), which reads as follows.

The crux of the Appellants argument cantered around the statements in the police report as information leading to the discovery of weapons used during the murder of the deceased under section 27 of the Evidence Act 1950 is inadmissible. The Appellants contended that section 27 Evidence Act 1950 only allows first information that distinctly relates to the discovery. Therefore, an information obtained from a joint statement or same statement from more than one person cannot be admitted. The contents of both P37 and P44 were identical stating.

The HCJ has considered the argument however, ruled that the information obtained from the Appellants that led to the discovery of some clothing and weapons was admissible. In our considered view, the decision by the HCJ is correct. The Federal Court in Amathevelli a/p P Ramasamy v Public Prosecutor [2009] 2 MLJ 367 held that the information received under section 27 EA needs to be proved by way of oral evidence and any contemporaneous written record of it only amounts to corroboration. The information under section 27 is not required by law to be in writing and the absence of it cannot render the oral evidence given in court to be inadmissible. Thus, a written record of the information given by the accused will not by itself be substantive evidence of its contents and it is what the witness deposes in court as having been said by the accused that will be evidence.

We examined SP16’s evidence below and we find the oral testimony relating to the investigation carried out and the 35 information given by the Appellants is very clear and beyond any doubt. At pg. 149, RR Jilid 2(1), SP16’s evidence is as follows-Untuk kamu, apa yang kamu buat pada tarikh tu? J: Pada 30 September 2016, pada jam lebih kurang 8.45 pagi, saya bersama dengan Sarjan Razman dan juga Kpt Yuslin Hasrizal, telah soal siasat awal terhadap suspek bernama Bhari bin Asmawin. Daripada soal siasat, hasilnya apa yang kamu perolehi? Hasil soal siasat tersebut, suspek ni memberitahu kepada saya, bahawa dia boleh tunjukkan kepada saya dimana dia simpan pakaian dan juga senjata yang digunakan semasa kejadian tersebut.” At pg. 153, RR Jilid 2(1), Dengan apa? Bersama lnspektor Sathya dan dengan berjalan kaki dari Blok 5 ke tnmpat kejadian. Kamu kata tadi ada padang? Ya. Selepas sampai disitu, kamu buat apa? Selepas sampai disitu, kedua-dua suspek ini Buhari dan Asmawin telah tunjukkan kepada saya di satu kawasan semak tuan. Semak dimana ni? 36 Berhampiran dengan padang bola. Apa yang kamu nampak? Satu kawasan semak, ditumbuhi pokok tuan. Apa berlaku disitu? Sampai disana, kedua-dua suspek ni beritahu kepada saya bahawa “itu parang” sambil ditunjukkan kepada saya kearah semak dibawah pokok tersebut. Pokok apa? Pokok apa tidak tahu. Selepas itu apa yang kamu lakukan? Selepas itu, saya bersama dengan pasukan saya dan Inspektor Sathya sekali membuat pencarian dikawasan semak tersebut dan telah menjumpai dua bilah parang.”

During cross-examination by the defence counsel, SP16 gave evidence relating to the location where the weapon ‘parang’ was found. At pg. 185 RR Jilid 2(1), the evidence is as follows- “S: Berapakah, berapa jauh semak tersebut dari tempat kejadian? Lebih kurang 150 ke 200-meter Puan, kalau tak silap saya. 200-meter? Ya. Berapa jauh tempat tersebut dari flat di mana OKT ditahan? 37 Lebih kurang 200-meter, Puan. 200-meter juga lnspektor saya nyatakan pada Inspektor yang parang tersebut telah pun dijumpai oleh Inspektor Sathya sebelum OKT dibawa ke semak tersebut, setuju atau tidak. Tidak setuju, Puan Saya cadangkan kepada Inspektor yang pakaian OKT juga telah dijumpai semasa tangkapan dibuat. Tidak setuju, Puan.” At pg. 195, RR Jilid 2(1), “S: Inspektor, melihat pada laporan yang dibuat oleh lnspektor sendiri siapa yang orang yang menanda report di sini. Yang menaip report? Menerima report? Ea, ea Sarjan Fadzir Mohd Fadzir B Roslan Ketika report ini dibuat inspektor, Inspektor sendiri yang taip sendiri laporan ini ataupun Inspektor sebut kepada penerima report Penerima report yang taip sendiri So Inspektor sebut dan J: Ye” Further at pg. 197, RR Jilid 2(1), 38 “S: Melihat pada gambar P16 gambar yang ke 16 dan ke 17 di sini, lnspektor siapa yang sebenarnya yang telah keluarkan senjata itu. Saya sendiri yang keluarkan. S: Inspektor yang sendiri keluarkan. So, yang 16 itu adalah gambar yang asalnya so bila keluarkan gambar 17. Ok maksudnya gambar yang ke 17 adalah gambar selepas dikeluarkan. Betul. S: lnspektor sendiri yang keluarkan? Betul. S: Saya rujuk pada, pada P16 gambar yang ke 16 setuju kalau saya katakan kedua-dua senjata ni kedua-dua parang ni sini tidak disimpan ataupun disorok, melihat pada gambar di sini. Tidak setuju. S: Boleh nampak dengan jelas. Tidak setuju”

SP15 evidence in Court during cross-examination by defence counsel is at pg. 110 RR Jilid 2(1) as follows- “S: Setuju dengan saya, berdasarkan keterangan inspektor sendiri, Suaib atau Buhari tidak masuk ke semak tersebut? Setuju. lnspektor ya, siapa yang masuk ke dalam semak tersebut? Inspektor ke? Bukan saya. 39 Siapa yang masuk ke semak tersebut? J: Satu pegawai. S: Satu pegawai ke lebih dari satu pegawai? J: Di tempat tersebut ada 2 pegawai [tidak jelas]. S: Yang masuk ke dalam semak tersebut? J: [Jawapan saksi tidak jelas gangguan mikrofon]. S: Dimana inspektor berada ketika gambar 14 dan 15 diambil? J: Jauh dari kawasan.”

The HCJ in his grounds has stated as follows “[86] I have however only taken into account the above wordings “saya boleh tunjukkan di mana saya simpan pakaian dan senjata” or “I can show you where I kept the clothing’s and weapons” for the purposes of section 27 of the Evidence Act 1950 (“EA”) and not the words “yang saya gunakan pada hari kejadian” or “I used during the incident” because I find that the additional words do not distinctly relate to the discovery of the items recovered under section 27 EA. [87] See Pulukuri Kottaya & Others v Emperor AIR 1947 PC where Sir John Beaumont said at page 70: “In their Lordship’s view it is fallacious to treat the ‘fact 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 40 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 of the fact 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.” (Emphasis added) [88] The issue for consideration is whether such information which led to the discovery of the weapons and clothing are admissible. section 27 of the Evidence Act 1950 reads as follows: Section 27. How much of information received from accused may be proved.

The HCJ further explained in his grounds as follows-- “[117] With regard to the fact that the photographs P16 (14) and P (15) respectively, which showed the accused allegedly pointing at a bush cannot corroborate the testimony of PW15 and PW16 that it was the accused’s conduct that led to the discovery of the weapons, as I stated earlier, it is the oral testimony of PW15 and PW16 that constitutes the information leading to discovery undersection 27 EA and not the police reports lodged subsequently. [118] In the same vein, the fact that the photographs allegedly showed the accused persons pointing out the location of the weapons and that the whole scene was staged, is of no consequence in so far as the admissibility of the information is concerned. [119] With regard to the fact that it was PW16 who brought the accused to the bushes and not the other way around, from the circumstances of the case, I find that the evidence given by PW16 was credible and I accept his evidence that the accused had given the information. 46 [120] With regard to the argument that based on the photographs P16 (17), the weapons were not concealed, even if true, again does not necessarily affect the admissibility of the information given as the mere fact that weapons are not concealed does not mean the information cannot be admitted. [121] The weapons were discovered in a field. The field is a football field and it spans a wide and considerable area. Unless someone knows exactly where the weapons were disposed of so that they knew where to look for it, the fact that they were located in an open field made no difference. [122] The admissibility of information under section 27EA does not depend upon whether the items were disposed in a concealed or an open location. What matters is that these items would not have been discovered if not for the information supplied by the accused persons to PW15 and PW16. Effect of the information supplied leading to discovery under section 27 EA [123] The effect of the admissibility of the evidence of the information given by both the first and second accused leading to the discovery of the clothing’s and weapons respectively is that a reasonable inference can be made that it was them that inflicted the injuries to the deceased that led to his death”.

We agree with the finding of the HJC regarding the police reports P37 and P44 are mere corroborative value and it is the oral 47 testimonies of PW15 and PW16 in court that constitutes the substantive evidence under section 27 EA. In fact, the HCJ made a finding that the testimonies of PW15 and PW16 in court, their evidence are credible and their oral testimony of the information supplied by the Appellants leading to the discovery of the clothing’s and weapons were admissible under Section 27 EA. At this juncture we are minded that this view of the trial judge as to the credibility of a witnesses must be given proper weight and consideration. An appellate court should be slow in disturbing such finding of fact arrived at by the judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding (Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209).

Thompson CJ’s comments in Chang Kim Siong v Public Prosecutor (supra) were in the following term: - “where the evidence is wholly circumstantial what has to be considered is not only the strength of each individual strands of evidence but also the combined strength of these strands when twisted together to make a rope. The real question is; is that rope strong enough to hang the prisoner?”

Considering SP9’s evidence read together with the Appellants’ arrest within few hours after the deceased’s body was found; the Appellants were hiding behind the water tank in the toilet of the said house; there was scuffle before the arrest was affected; Evidence given under section 27 of EA led to the discovery of clothes and 48 weapons and the evidence of SP14 which confirmed that there were more than 10 slash wounds to the deceased including to the head of the deceased; The deceased’s cause of death is slash wound to the head, the HCJ cannot in our view be said to have arrived into a wrong conclusion. The HCJ held correctly that- “[129] The evidence as gathered from a combination of the circumstances was thus inconsistent with any other hypothesis than that of the guilt of the accused persons. There was therefore sufficient circumstantial evidence to connect the first and second accused to the death of the deceased”.

The HCJ has made a finding that the Appellants committed the murder of the deceased. Though there was no eye-witness who saw the murder and the evidence is circumstantial in nature, we are satisfied that the evidence tendered in court provided sufficient connection to the Appellants with the murder.

The HCJ found SP9’ evidence is credible and SP15 and SP16 are credible witnesses. The principle of law governing appeals in criminal cases on questions of fact is well established, in that the Appeal Court will not interfere unless the balance of evidence is grossly against the conviction especially upon a finding of a specific fact involving the evaluation of the evidence of a witness founded on the credibility of such witness (Lai Kim Hon & Ors v PP [1981] 1 MLJ 84). An appellate court should be slow to interfere with the finding of fact by a lower court as an appellate court does not have the advantage of seeing and hearing the witnesses and therefore 49 of assessing their credibility (Public Prosecutor v Wan Razali Kassim [1970] 2 MLJ 79).

In the instant case the HCJ very carefully analysed all the available evidence before him and made specific findings of fact founded upon that which he believed to be the truth. He also drew certain inferences from facts specifically found. In this respect we may form our independent view but we should only do so where the fact upon which the inference was drawn was either unwarranted or manifestly against the weight of evidence. That was not the case here. Conclusion

We find there is no appealable error in the decision by the HCJ. The appeal has no merit. We are satisfied that the conviction against the Appellants is safe. It is our unanimous decision that the appeal is dismissed and the conviction and sentence meted against the Appellants is affirmed. Dated this 29 December 2021 sgd KAMALUDIN MD. SAID JUDGE COURT OF APPEAL MALAYSIA PUTRAJAYA 50 Parties :

Muhammad bin Abd Kadir for the 1st Appellant. (Tetuan Muhammad Abd Kadir & Co.)

Sukhaimi bin Mashud for the 2nd Appellant. (Tetuan Teh Poh Teik & Co.)

Dhiya Syazwani Izyan bte Mohd Akhir, Deputy Public Prosecutor for the Respondent (Attorney General Chambers)