Sulaiman Bin Abdul Kadir v Public Prosecutor (M-05(SH)-505-11/2017 M-05(SH)-506-11/2017 M-05(SH)-507-11/2017)

Kamaruzaman bin Mohamed Shah

Sulaiman bin Abdul Kadir

Farezzuman bin Mohd

Murukesan a/l Sivaperumal

Robin anak Ajing] CORAM: KAMARDIN BIN HASHIM, JCA, MOHAMAD ZABIDIN BIN MOHD DIAH, JCA, YEW JEN KIE, JCA JUDGMENT OF THE COURT [1] The three Appellants together with Murukesan a/l Sivaperumal (4th accused) and Robin anak Ajing (5th accused) were charged and tried in the High Court Malacca for kidnapping a man named Tan Tiang See (PW21) for ransom, an offence punishable under section 3(1) of Kidnapping Act 1961 ("the Act"). [2] The charge against them read as follows: 3 "Bahawa kamu bersama-sama pada 14.2.2011 jam lebih kurang 6.00 petang di hadapan Gudang K&H Trading Sdn. Bhd., No. 1 Jalan TTC 25, Cheng Industrial Estate, di dalam Daerah Melaka Tengah, dalam Negeri Melaka telah dengan niat hendak membuat tebusan mencolek seorang lelaki cina bernama TAN TIANG SEE, K/P: 710314-04-5217 yang berumur 39 tahun serta mengurung lelaki tersebut dengan salah di sebuah rumah beralamat No. 48, Jalan Cengal 1, Taman Merdeka, Batu Berendam, di dalam Daerah Melaka Tengah, di dalam Negeri Melaka sehingga wang tebusan sebanyak RM500,000.00 dibayar oleh abang mangsa iaitu TAN THEAN LEE, K/P: 620807-10-5979. Oleh yang demikian, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 3(1) Akta Colek 1961 (AKTA 365) dan dibaca bersama-sama Seksyen 34 Kanun Keseksaan." [3] At the end of the prosecution's case, the learned trial judge acquitted all of them without calling for their defence. Aggrieved by the said order, the Public Prosecutor appealed to this Court. On 2.2.2017 this Court allowed the prosecution's appeal and ordered defence to be called against all the three Appellants. [4] After hearing the defence, the learned trial judge found all three including the 2nd Appellant guilty of the charge and sentenced them to life imprisonment. All three including the 2nd Appellant filed separate appeals to this Court against their convictions and sentences and their cases were registered with three different case numbers. The appeal by the 1st Appellant was registered as M-05 (SH)-505-11/2017. The appeal by the 2nd Appellant was registered as M-05 (SH)-506-11/2017 and the appeal by the 3rd Appellant M-05(SH)-507-11/2017. All three appeals were scheduled to be heard together. 4 [5] On 23.4.2019, when the appeals were called up for hearing, the 3rd Appellant informed the court that he was withdrawing his appeal. Hence, his appeal was struck out and the conviction and sentence on the 3rd Appellant imposed by the learned trial judge was affirmed. [6] We continued to hear the appeals by the 1st and the 2nd Appellants. After hearing their submissions and that of the learned Deputy Public Prosecutor's (DPP) we dismissed both appeals. [7] Not satisfied with our decision, the 2nd Appellant lodged a notice of appeal to the Federal Court dated 29.4.2019. The 1st Appellant did not file any notice of appeal against our decision. [8] We, now give our reason for dismissing the appeal by both the Appellants. Prosecution's Case [9] The evidence proffered by the prosecution is circumstantial in nature. The relevant part of the evidence may be summarized as follows.

From PW 21 it was established that on 14.2.2011 at about 6 p.m., once PW 21 exited from the main door of K&H Trading Sdn Bhd warehouse (company of PW 21's brother where he was working) located at No. 1 Jalan TTC 25, Cheng Industrial Estate, Melaka ("K&H Warehouse"), he saw a van parked at the left side of the main door of K&H Warehouse. 5

There were signboard of "AWAS" and cones beside the van. PW 21 further saw around 7 to 8 men working to remove or clear away bushy clump of grass in front of the said K&H Warehouse.

PW 21 moved towards the direction where his car was parked. He then realised 4 or 5 peoples approaching him. When he glanced back, he saw an Indian man (whom he identified as 4th Accused) who punched him in the face. Then, the said 4 to 5 peoples grabbed PW 21 from his back and pushed him into the rear of the van. His hands and legs were tied. Meanwhile, his eyes and mouth were covered with cellophane tape.

The van started to move. After the van travelled for about 20 minutes, PW 21 felt the van stopped and he heard the sounds of the van door and gate of a premise opening.

PW 21 was carried by some people (kidnappers) and then left on the floor where he felt there was a hole. After about 1 hour, PW 21 successfully untied his legs. However, the kidnappers realised this and brought him to another spot and spoke to him. PW 21 was told by one of the kidnappers that they did not intend to kill PW 21, as the next day would be Awal Muharam.

One of the kidnappers asked PW 21 for anyone that could be contacted for his release. PW 21 gave his brothers (Tan Tien Lee, PW 22) hand phone number i.e. 019-6677895 to the kidnapper. 6

After giving the hand phone number of PW 22, the kidnappers took PW 21's gold ring and tied PW21's legs again. This time, they tightened the tie. Not only that, the kidnappers also checked PW 21's trousers pocket and took his wallet which contained at least RM1000.00, Nokia hand phone 5800 and a lighter.

Thereafter, PW 21 was brought back and placed at the original spot where there was a hole. PW 21 was instructed to be silent. After ensuring there was no one present in the premise, PW 21 said he screamed for help every 30 minutes. After quite some time, PW 21 heard the sounds of opening gate and he initially thought that the kidnappers had returned. To his surprise, he heard a conversation between two ladies asking to each other whether he was a male or a female.

Immediately, PW 21 took the opportunity to reply that he is a male and asked for their help.

PW 21 then heard the reply by a man (PW 32) that he could not fully open the door of the toilet. PW 32 asked PW 21 to be patient and to wait for the arrival of the police. Shortly, the police arrived at the scene. PW 32 and KPL Kamaruddin bin Baba (PW 8) together carried PW 21 to a chair and untied PW 21.

PW 21 borrowed a cell phone from a chinese police officer that was present to contact his brother and his wife. After about 10 minutes, PW 21's wife arrived at the scene. Later, PW21 was sent to Hospital Besar Melaka accompanied by his wife. At that time, 7 PW 21 realized that he was in fact confined at Taman Merdeka nearby his house.

As a result of the incident, PW 21 was injured on his right hand, mouth and forehead. [10] The evidence of PW 22, the brother of PW 21 was that:

On 14.02.2011 at about 11.30 p.m., he received a phone call from number 013-6842005 made by a male Malay informing him that SP 21 was in their custody and asked for RM500,000.00 ransom. After some negotiation the amount was reduced to RM300,000.00 to be paid the next day.

On 15.2.2011 at about 8.15 a.m., SP 22 received another call from the same person (SP 22 recognised the voice to be the same as the previous caller) but this time using the phone number 017-787839 asking about the ransom money. At about 9.20 a.m., the same caller again called SP 22 using phone number 017-3543499. SP 22 did not answer the call. At about 11 a.m., the same caller again called PW 22 using the same phone number 017-3543499. [11] The other evidence from the other prosecution’s witness is that:

On 14.2.2011, Mohd Azrul bin Abu Hassan (PW 32), son of the owner of a house turned into homestay accommodation service, received a phone call from no. 017-3543499 for accommodation. 8 A Malay man was at the other end. He then gave the man his mother's hand phone number i.e. 013-6910350 for the man to directly deal with his mother. PW 32 informed his mother Sofiah binti Yang Razali (PW 12) about this matter;

PW 12 went to the said house at No. 48, Jalan Chenggal 1, Taman Merdeka, Batu Berendam, Melaka ("homestay") with her friend to clean the place before renting to others;

Two men appeared at the homestay on 14.2.2011 at around 2 p.m. and one of them told PW12 that he had made the call to rent the homestay. He gave photostatted copy of identification card (“IC”) and driving licence (P39A) to PW 12 and asked PW 12 to enter into her record of renting the homestay based on the name as stated on the said IC;

PW 12 was able to identify the 1st Appellant as the man who gave her the copy of P39A. After she received payment of RM140.00 from him, PW 12 passed the key (P43) to the 1st Appellant. On that night, PW 12 received a call from someone using no. 017- 3543499 asking to continue renting the homestay for one more night;

On 15.2.2011, PW 12 answered a call from the neighbour of the homestay and she was told that the neighbour heard voices of someone asking for help coming from the homestay. PW 12 and PW 32 decided to go to their homestay to find out what actually happened; 9

When they reached the homestay at around 8 a.m. that morning, they saw many people were gathering and standing in front of the homestay. They also heard clearly the voices of someone asking for help. PW 32 climbed over the gate and unlocked the padlock. Then, he entered the homestay through unlocked sliding door and looked for the source of the voice. Finally, he found PW 21 inside a toilet. It was PW 32's testimony that he noticed that PW 21's head was bandaged with blue cellophane tape (P29A). Hands were tied with black cable ties (P28A) and legs were tied with orange nylon rope (P27A).

On 15.2.2011 at around 11.30 a.m., Insp. Stephen a/l Ayuk (PW 15) led a team of Special Criminal Investigation Division (D9) to the homestay. Upon arrival at the homestay, he noticed and felt very suspicious of two Malay men who were inside a parked blue Satria car with plate registration no. CBA 848. PW 15 restrained the Satria car and introduced himself as a policeman by showing his authority card. These two suspects who were the 1st and the 2nd Appellants, attempted to flee from the scene. There was a scuffle between the D9 team and the two Appellants. Nevertheless, both the 1st and the 2nd Appellants were successfully arrested. [12] PW15, the investigating officer testified, among others, that:

A phone with dual sim cards were seized from the 2nd Appellant and was sent to Maxis for analysis. It was confirmed by PW 39 10 that the two sim cards are for numbers 017-7878739 and 017-

3543499.

A key and remote alarm belonging to the homestay was recovered from the 2nd Appellant and according to PW 12, he handed this key and remote alarm to the 1st Appellant. It was the 1st Appellant who rented the homestay using an identity card belonging to one Mohd Elias (PW 9) that was reported lost on 22.1.2011. [13] The telecommunication service provider Maxis, through PW 38 confirmed that there were calls from 017-7878739 to PW 12 (the owner of homestay) and PW 22 (the victim's brother). There were calls from 017- 3543499 to PW 12, PW 32 (the son of the owner of the homestay) and PW

Calls were also made to telephone number 012-3107320 which was registered in the 1st Appellant's name and was recovered from him at the time of his arrest. Calls were also made from this number to the 2nd Appellant. [14] It was the 2nd Appellant who rented the motor van WFX 6533 that was used by the kidnappers on the day PW 21 was kidnapped. [15] The DNA evidence showed that the 1st Appellant's and the 2nd Appellant's DNA material were found on the Cone No 13. The 2nd Appellant's fingerprints were also found in the room where the victim was confined. [16] PW 35 testified that the 1st Appellant led PW 35 to a house where a wallet containing personal documents of PW 21 (Exhibits P110-P110H) were 11 recovered. Other documents recovered from the same house were documents belonging to Mohd Elias (PW 9). [17] Above were the circumstantial evidence proffered by the prosecution to establish a prima farcie case against the Appellants. As alluded to earlier, at the end of the prosecution case, the learned trial judge acquitted the Appellants without their defence being called. But on appeal, this Court via an order dated 2.2.2017 ruled that the prosecution had established a prima facie case against the Appellants. The Defence [18] Both Appellants elected to testify under oath. The 1st Appellant alleged that, on 14.2.2011 he was in the house with his mother (deceased) and did not go anywhere. On the next day at around 10 a.m., he went to a restaurant at Taman Merdeka to meet the 2nd Appellant whom he had planned to go fishing with. He claimed that he did not have the 2nd Appellant's hand phone number because they had just knew each other since 10.1.2011. He waited until the arrival of the 2nd Appellant, and they departed to the fishing spot after having some food. [19] The 1st Appellant drove the 2nd Appellant to a spot and asked the 2nd Appellant where he wanted to fish. They then decided to stop at a suitable spot and parked the car under a tree. The 2nd Appellant said, he wanted to go down from the car to look whether the place was suitable or not. After that, the 2nd Appellant brought back one red plastic bag to the car and whilst sitting at the front passenger seat with one leg outside, the 2nd Appellant opened the plastic bag. The 1st Appellant saw the 2nd Appellant took the key 12 and opened his hand phone to insert the sim card found from the plastic bag. Suddenly, there were five to six persons informing them that they were police personnel, apprehended the 2nd Appellant whilst the 1st Appellant claimed he cooperated with the police. [20] The 2nd Appellant testified that on 15.2.2011, he came back from mosque after attending ceremony of "Maulidur Rasul" and after the ceremony, he found there were many people gathered at the premise ("the homestay"). He went into the house to check what had happened but did not remember whether he had touched anything in the said house. [21] The 2nd Appellant later went out from the house and met with the 1st Appellant who had planned to go fishing near the housing area of Taman Merdeka. The 2nd Appellant then decided to join the 1st Appellant and go fishing. [22] The 2nd Appellant said when he went out from the car at a spot for fishing near the homestay, he saw one plastic bag containing 2 sim cards, keys and also identity card. He was attracted to the sim cards. He then tried to insert one of the sim cards into his hand phone and at that time the police came and arrested him and the 1st Appellants. Decision of the learned trial judge [23] After scrutinizing the defence in the light of the circumstantial evidence proffered by the prosecution, the learned trial judge came to the conclusion that the prosecution had proved its case beyond reasonable doubt. The Appellants' defence had failed to cast any reasonable doubt in 13 the prosecution's case. Hence, the Appellants were found guilty, convicted and sentenced to life imprisonment and 10 strokes of whippings. Appeal [24] Before us, the 2nd Appellant who represented himself submitted on his behalf and the 1st Appellant adopted the said submission as his own. Reading from a lengthy written submission (Enclosure 12), the 2nd Appellant submitted that the learned trial judge was wrong in convicting both of them for the following reasons:

PW 21 (the victim) did not identify the 2nd Appellant as the one who kidnapped and confined PW 21;

There was no ransom money recovered;

The homestay where PW 21 was confined was not registered under the 2nd Appellant's name;

The van used to commit the crime was not registered in the 2nd Appellant's name;

The telephone number used to contact the victim’s family was not registered in the 2nd Appellant's name; and

PW 34 was threatened by the DPP and his (PW 34) evidence should be rejected. 14 Our Deliberation and Decision [25] From the petition of appeal and the submissions by both the Appellants, the Appellants’ case is that they have nothing to do with the kidnapping of PW 21 and thus the learned trial judge erred in convicting them for the crime. Both of them submitted that since PW 21 did not identify the 2nd Appellant as the one who kidnapped and confined PW 21; there was no ransom money recovered; the homestay where PW21 was confined was not registered under the 2nd Appellant's name; the van used to commit the crime was not registered in the 2nd Appellant's name; the telephone number used to contact the victim’s family was not registered in the 2nd Appellant's name and PW 34 was threatened by the DPP and his (PW 34) evidence should be rejected; there are no evidence to prove that both the Appellants were involved in kidnapping PW 21. [26] Reading the appeal record, we observed that the same line of arguments were submitted before the trial judge at the end of the prosecution’s case which on appeal the previous panel of this Court found there was no merit in the said submission and thus ordered the Appellants to enter their defence. As such, we inclined to agree with the learned DPP who submitted, based on the authority of PP v Sulaiman Bin Saidin [2010] 3 MLJ 383, there is no necessity for us to reconsider the issues of prima facie case raised at the close of the prosecution’s case and had been considered by the previous panel of this Court, unless there are new evidence raised during the defence which could give rise to reasonable doubt in the prosecution’s case. Therefore, we are of the considered view, the main issue in this appeal is whether the learned trial judge was justified and correct in his findings that the defence put forward by the Appellants had not created 15 any reasonable doubt in the prosecution’s case and the prosecution on the other hand had proven its case beyond reasonable doubt. [27] In assessing the defence by the 1st Appellant, the learned trial judge wrote in his ground at pages 72 and 73 Vol 1 Appeal Record as follows: “16. The Learned Counsel on behalf of the second Accused submitted that PW12 could not identify the second Accused accurately, and on the eventful day the second Accused had stated that he was at a restaurant, Taman Melaka to wait for the first Accused to go fishing.

This Court found that the Counsel for the second Accused had failed to explain the rationale of claiming the identification made by PW12 against the second Accused was inaccurate. Further, upon assessment of the fact of the case, this Court accepted the evidence of PW12 who had met with the second Accused face to face when the second Accused came to submit the photostated copy of IC and driving licence (P39A) to PW12 and asked PW12 to enter into her record of renting the Homestay based on the name as stated on the said IC copy.

This Court considered the evidence by the second Accused and found it was merely a bare denial since his evidence was full of gaps and doubts. Firstly, the second Accused stated that he did not have the phone numbers of the first Accused, but how did they made appointment to go fishing on that day; Secondly, the IC of Elias (PW9) was found in the house of the second Accused but no explanation made; Thirdly, this was the first time the second Accused stated that he was with his mother (deceased) on last 14 February 2011 during the trial but this was not informed to the investigation officer; since the second Accused had the opportunity until the year 2015 to tender this evidence whilst his mother was still alive and he failed to do so which is clearly an afterthought. 16

As such, this Court decided the defence of the second Accused is a bare denial and it is trite that the defence of bare denial is no defence because the second Accused did not provide any explanation to the positive identification against him by PW12, the IC copy found in his house and the alibi statement together with his deceased mother on 14 February 2011 was only first disclosed in the trial but no mention any of it at the prosecution's stage. Reference is made to the case of Mr Losali v PP, Court of Appeal [2011] 4 MLJ 694.” [28] In assessing the defence by the 2nd Appellant, the learned trial judge did not rely on the DNA evidence which showed both the 1st and the 2nd Appellants’ DNA were found at cone No.13 because of possible contamination. Nevertheless, the learned trial judge wrote in his ground at paragraph 9 pages 65 to 71 Volume 1 Appeal Record: “9. Nevertheless, this Court is mindful that whether the deciding factor to determine the link of the first Accused with the kidnapping offence need not rest solely on result of the DNA profiling alone. (Lim Hean Chong @ Teo Hean Chong v Public Prosecutor [2012] 1 MLJ 149). So, it does not affect or weakened the case for prosecution due to absence of any evidence of forensic link in respect of the cone number "13". [29] At paragraph 11, his Lordship wrote: “11. ... the sim card proffers evidence that links the first Accused to the crime. It is in the evidence, there was a phone (P68) with two sim cards which were confiscated from the 1st Accused i.e. no 017- 7878739 and 017-3543499:-

11.1 Considering the available evidences, there were two men appeared at the Homestay on 14.2.2011 at around 2 p.m. and 17 one of them told PW 12 that he had made the call to rent the Homestay. He gave photostatted copy of IC and driving licence (P39A) to PW 12 and asked PW 12 to enter into her record of renting the Homestay based on the name as stated on the said IC. In the circumstances, PW 12 told this Court that she was only able to identify 2nd Accused as the man who gave her the copy of P39A. After she received payment of RM140.00 from him, PW 12 passed the key (P43) of the Homestay to the 2nd Accused and on that night, PW 12 received a call from someone using no. 017- 3543499 asking to continue renting the homestay for one more night.” [30] At paragraph 11.3, his Lordship wrote: “11.3 On 15.2.2011 at around 9.20 a.m., PW 22 (brother of the victim) received calls from no. 017-3543499 whilst he was at Hospital Besar Melaka which he had missed the first call. After being advised by a police officer, PW 22 answered the second call from the said no. 017-3543499 and the caller asked PW 22 whether he was ready to give RM20,000.00. PW 22 requested to talk to his brother for confirmation but the caller hung up; and

11.4. At around 1100 a.m., PW 22 received another call from no. 017- 3543499 again whilst he was at his house and was ordered to prepare the ransom money. In relation to this number, it was registered in the name of one Mohd Elias bin Ahmad, who was called by Prosecution as PW 9; who had clarified that he had lost his IC on 22.1.2011 and he had lodged the necessary police report (P 33).” 18 [31] His Lordship then went on to find: “12. This Court found that the second Accused had rented the homestay from PW 12 and called the PW 12 later with no. 017-3543499 asking for continue renting the place, as the second Accused had been identified by PW 12 as the person who rented the homestay using the name of "Mohd Elias" as stated in the IC photocopy is shows that the second Accused is a culprit involved in this case.

That evidence taken together with the evidence that the first Accused knew the second Accused had used this number to call PW 12 for renting the homestay, and the first Accused was present together with the second Accused when arrested by the police near the Homestay provided the circumstantial evidence they were involved together.

In the circumstances, the statement given by the first Accused that, he suddenly saw a plastic bags containing, amongst others, including sim cards on the ground and then took and inserted one of the sim cards into his hand phone, was clearly an afterthought and his fabrications. This statement was devoid of reasonableness as the sim card number which came from nowhere was in fact had been used by the second Accused; as well the two sim cards numbers were the numbers calling PW 22 for ransom money before the time the first Accused claimed he found the sim cards in the plastic bag on the ground at his fishing spot.

Pursuant to the above, this Court is satisfied with the totality of all the evidence had provided a strong circumstantial evidence that the first Accused was involved in the crime and his defence has not cast any doubt to the circumstantial evidence that points to his guilt.” [32] We had the opportunity to scrutinize the evidence of the witnesses recorded by the learned trial judge and compared them with that of the 19 defence by both the Appellants. With respect, we agree with the learned trial judge that the available evidence as adduced by the prosecution when taken together lead to only one irresistible conclusion that there was common intention amongst the Appellants to commit the offence as charged. They had participated in concert pursuant to a pre-arranged plan in the commission of the intended offence in furtherance of such common intention. When ordered to enter their defences, they merely deny any involvement in the kidnaping of PW 21 and went on to fabricate a story alleging that on that day they went fishing and the 2nd Appellant suddenly saw a plastic bags containing the sim cards on the ground. From the factual matrix of this case, we have no reason to disagree with the learned trial judge who found the defence by the Appellants were devoid of reasonableness as the sim card number which came from nowhere was in fact had been used by the 1st Appellant; as well the two sim cards numbers were the numbers calling PW 22 for ransom money before the time the first Accused claimed he found the sim cards in the plastic bag on the ground at his fishing spot. We agree with the learned trial judge who found both Appellants failed to create any reasonable doubt in the prosecution case and the prosecution on the other hand had proven its case beyond reasonable doubt. Conclusion [33] As a conclusion, we find there was no merit in both the Appellants’ appeal. The conviction was safe and amply supported by strong circumstantial evidence which when taken together lead to only one irresistible conclusion that there was common intention amongst the Appellants to commit the offence as charged. The defence by both the 20 Appellants was mere denial, which does not cast any reasonable doubt in the prosecution’s case. Sentence [34] As for the sentence of life imprisonment instead of death penalty imposed by the learned trial judge, we find there was no necessity to interfere. We find life imprisonment imposed by the learned trial judge is reasonable based on the same reasons given by his Lordship i.e. there was no serious injuries inflicted on the victim, the length of his confinement period was short from the time he was abducted until he was rescued. The ransom money was also not paid out to the kidnappers. Apart from the degree of deliberateness in the commission of this offence, we also considered the mitigating factors and the public interests is best served by turning the Appellants into leading an honest living after serving the sentence passed on them. [35] For the above said reason, the appeals by both Appellants was dismissed. The conviction and sentence imposed by the learned trial judge was affirmed. Dated 18 November 2019 Sgd. MOHAMAD ZABIDIN BIN MOHD DIAH Judge Court of Appeal Malaysia 21 For the Respondent: Faizah binti Mohd Salleh