Subparagraph
(ii) ‘Male 1’. 16 [46] It was further submitted that SP-7 had stated in her oral evidence that for two (2) DNA profiles to be considered as being ‘consistent’ with each other, there must be at least six (6) genetic loci matching each other’s profile. [47] It was then submitted that from SP-7’s report (exhibit P22), it can be shown that the mixed DNA profile may be considered as also being ‘consistent’ with the DNA profile of ‘Individual 1’ with six (6) matching genetic loci located at STR locus CSFIPO, THO1, D16S539, D2S1338, D195433 and vWA. [48] It was also submitted that the said mixed DNA profile may also be ‘consistent’ with the DNA profile of ‘Male 1’ with ten (10) matching genetic loci located at STR locus D21S11, D7S820, CSFIPO, TH01, D16S539, D2S1338, vWA, TPOX and D5S818. [49] Learned counsel further submitted that a mixed DNA profile is less reliable for the purpose of identification of the owner of the DNA profile because of the wide range of possible matches with other DNA profiles having not less than 6 matching genetic loci. However, there is no 17 indication in the judgment of the learned trial judge that he had considered the infirmity inherent in a mixed DNA profile on account of the above (paragraphs 48 and 49) for the purpose of implicating the appellant with the commission of the offence nor proffer any reason for rejecting the consistency of the said mixed DNA profile with the DNA profiles of ‘Individual 1’ and ‘Male 1’. This has verily created a reasonable doubt upon the prosecution’s case. [50] However, we were in disagreement with learned counsel’s submission. The evidence showed that the unknown sources of DNA profiles developed from ‘Individual 1’ and ‘Male 1’ were not recovered from the scene of the crime nor from the inside or outside the deceased’s car and neither from any part of the deceased’s person. [51] Rather, the evidence indicated that the DNA profiles from ‘Individual 1’ and ‘Male 1’ were developed from the bloodstained area found on comforter ‘Z’ which was seized by the police from the house of the appellant’s Indonesian wife. 18 [52] Similarly, the DNA profiles of ‘Individual 1’ and ‘Male 1’ were also developed from the blanket that was seized from the house of the appellant’s Indonesian wife. [53] The purpose of the seizure of these two (2) articles was narrated by SP-17, the investigating officer, in his examination in chief appearing at p. 211, Jilid 2C, RR: “S: Daripada mana selimut dan toto ASP hantar ke Kimia ini dirampas? A: Y.A kedua-dua barang kes yang saya hantar itu diperolehi daripada pegawai serbuan Insp. Dasila binti Hanafi yang telah membuat pemeriksaan ke atas sebuah rumah di alamat B-03-06, Apartment Kenanga, Bandar Putra Perdana, Puchong, Selangor. Pemilik rumah ketika itu adalah seorang perempuan Indonesia bernama Darwit Karda, No. Passport AK680414. S: Berdasarkan siasatan ASP, serbuan ini dibuat di rumah siapa, apa kaitan rumah ini dengan serbuan yang dilakukan ini? A: Berdasarkan siasatan saya YA serbuan dibuat kerana perempuan Indonesia ini adalah isteri kepada OKT yang bernama Tee Yee Sien”. [54] Hence, in such event we were with the learned Deputy Public Prosecutor’s submission that the DNA profiles of ‘Individual 1’ and ‘Male 1’ which were developed from the said comforter and blanket has no relevance and weightage at all upon the culpability or otherwise of the appellant in the commission of the offence preferred against him as the 19 said articles were not seized from the crime scene but from the apartment belonging to the appellant’s wife. Ground (iii) – investigation of the appellant’s alibi [55] At para. 75, p. 53, Jilid 1, RR, the learned trial judge stated in his judgment: “Under the circumstances and despite the omission of the police to conduct any or any reasonable investigation as alleged, cannot assist the accused in endeavouring to establish his presence at those places and his alleged meetings with the persons he mentioned. Further, the police cannot be expected to embark on a ‘wild goose’ chase in checking out all the massage parlours and Thai restaurants in the area and as a result of insufficient information provided by the accused and be faulted for not doing any investigation or for doing shoddy investigation”. [56] Upon such findings, learned counsel submitted that the learned trial judge had misdirected himself because SP-17 (the investigating officer) had testified that he had in fact investigated the appellant’s story/alibi given in his cautioned statement (exhibit D87, p. 209, Jilid 3B, RR) although it was done through another officer whose name he cannot now remember. 20 [57] Learned counsel added that the learned trial judge had further misdirected himself when he failed to invoke section 114(g) of the Evidence Act 1950, against the prosecution on account of its failure to produce the said police officer who had actually conducted the investigation in court. This officer was a material witness who could easily have been subpoenaed to testify and the failure to call this particular officer has left a material gap in the prosecution’s case. [58] It was further submitted that the learned trial judge had misdirected himself when he relied on the evidence of SP-17, which is clearly hearsay, in finding that there was no truth in the appellant’s version when he has not even heard the evidence of the said officer who actually investigated the appellant’s version/alibi. [59] Now, the evidence overwhelmingly revealed that the appellant was at the scene of crime and had engaged or struggled with the deceased inferred through the presence of his fingerprint impression ‘AO’ on the outside of the driver’s side door window of the deceased’s motorcar, the mixed DNA profile found in the deceased’s fingernails showing the presence of the appellant’s DNA profile as the minor contributor, the fact that the appellant had pawned the deceased IPhone 4S hand phone with 21 SP-4 soon after the demise of the deceased and the seizure of the deceased’s LG Chocolate hand phone from the appellant himself. These factual evidence led the learned trial judge to the irresistible conclusion that the murder of the deceased cannot be explained in any other manner than the hypothesis that it was the appellant who had murdered the deceased – (see paras. 107, 108, pp. 68, 69, Jilid 1, RR – grounds of Judgement). [60] Hence, the learned trial judge was satisfied beyond reasonable doubt that the appellant had been positively identified, though not in terms of the Turnbull guidelines but through circumstantial evidence, as the person involved in the murder of the deceased. We were with him. The appellant was at the scene of crime. [61] In such event where the learned trial judge had found as a matter of fact that the appellant had been positively identified as the person involved in the killing of the deceased, his alibi defence as mooted in his cautioned statement collapsed. We were fortified in our finding by the following statement of the law by the Federal Court in Duis Akim & Ors v PP [2013] 9 CLJ 692 at pp. 719, 720: 22 “[82] However, alibi could not prevail over the positive identification of an accused person especially so in the face of categorical statements coming from credible witnesses who had no ill motives in testifying. [83] Thus, in Mutachi Stephen v Uganda ([2003] UGCA 9) the accused said that on the night the offence took place he was already asleep with his wife. However there was a witness who had positively identified him. As such his alibi collapsed. He has been squarely put at the scene of crime. [84] Similarly, in the present case it was the finding of the learned trial judge, which we agree, that the appellants had been positively identified by PW1. As such, the alibi defence of the first and second appellants collapsed….. [85] …….. [86] Accordingly, for the above reasons there is no necessity for us to deal with the alibi defence but merely to consider whether the prosecution had established its case beyond reasonable doubt in order to uphold the convictions of the appellants”. [62] We were of the considered opinion that the aforesaid principles did apply with equal force to the present appeal before us although no formal notice of alibi was tendered in court but mooted through the appellant’s cautioned statement and that the identification of the appellant was made not through the evidence of eye witnesses but through the combined strength of circumstantial evidence upon which the appellant has been squarely put at the scene of crime. [63] Thus, following the above said authority, there is no need for us to consider the appellant’s version/alibi as contained in his cautioned 23 statement that he was not at the scene of crime at the time of the deceased’s murder but elsewhere. What is left to be considered is whether the prosecution had established its case beyond reasonable doubt in order to sustain the conviction of the appellant. [64] Hence, to recapitulate, the appellant testified that soon after his arrest, he had informed the police as to his whereabouts on the day of the incident. He said that on that day (3.2.2012) he was at home from the time he woke up at about 11.30 a.m. After going out to buy vegetables at about 1.00 p.m. he returned home and stayed at home until about 8.30 p.m. At around 8.30 p.m. he left his house to meet a friend, Ah Meng, at a massage parlour in Pinggiran Putra. He arrived at Pinggiran Putra at about 9.00 p.m. and met with Ah Meng for about 15 minutes. Then he went to Jalan Alor in the Bukit Bintang area in Kuala Lumpur to sell alcoholic medicinal drinks to a Thai Lady, one ‘Pi’. After that he had a meal in a Thai restaurant. He said he was there until about 11.30 p.m. after which he went home. [65] However, the learned trial judge rejected the appellant’s version of the event and gave his full grounds for so doing as indicated at paras. to 71 at pp. 50 to 52 of Jilid 1, RR. We did not find it necessary to 24 regurgitate its contents herein but wished to express our full agreement with his grounds, analysis and findings thereof. Finally, in the following paragraphs the learned trial judge stated: “[72] From the above analysis, it appears that the accused was unable to descend into important specifics regarding the version he told the police. The most noticeable of these were that he was unable to provide the full name and other descriptions of Ah Meng whom he had claimed to have met many times before. He also was unable to give the name of the massage parlour. He was also unable to give a description of Pi and the name of the Thai restaurant although he claimed to have eaten there often. [73] …….. [74] I find that the accused had provided insufficient details to the police to expect them to carry out meaningful investigation regarding the version given by him. Notwithstanding the contention of the accused that there were only so many massage parlours and Thai restaurants in the particular areas he mentioned, it defies reason that the accused was unable to furnish what would be considered reasonable details and description of the personalities and the establishments mentioned if indeed he was well acquainted with them”. [66] Again, we were in full agreement with the findings expressed therein which is most instructive rendering it unnecessary for us to add anything more to it. [67] In addition, the appellant had failed to account the presence of his DNA in the mixed DNA profile developed from the bloodstains under the fingernails of the deceased. 25 [68] Equally, the appellant had also failed to explain as to how his fingerprint could be imprinted on the driver’s side window of the deceased’s motorcar. [69] The appellant’s evidence of how he came into possession of the deceased’s IPhone 4S and LG Chocolate hand phones also cannot be supported by any credible evidence. He claimed to have purchased the two hand phones from a male Malay on 5.2.2012 when he was having dinner at Pinggiran Putra for RM700.00 after meeting Ah Meng at a massage parlour which he claimed had gone for many times and yet he was unable to give details of the massage parlour and its whereabouts. [70] In addition this was also not mentioned in his cautioned statement. Further, if he has all the money in the world to purchase the two hand phones, why the need then to pawn one of the hand phones with SP-4? [71] The appellant also failed to provide details of ‘Pi’ whom he also claimed to have met that night or the name of the restaurant that he had his meal after meeting ‘Pi’. 26 [72] At the end of the day, we were with the learned trial judge’s findings that Ah Meng, Pi and the male Malay did not exist and was invented by the appellant to show that he was not at the scene of crime at the material time. [73] The appellant’s defence did not also cast any reasonable doubt upon the prosecution’s case. The pieces of evidence when combined together lead only to the irresistible conclusion that the murder of the deceased was committed by the appellant. The prosecution had indeed proved its case beyond reasonable doubt. Ground (iv) – the oral evidence of SP-18, the fingerprint expert was contradicted by his own written report (exhibit D52) [74] SP-18’s fingerprint report (exhibit D52) dated 16.2.2012 issued pursuant to section 399(1) of the Criminal Procedure Code (‘CPC’), was tendered by the defence during the prosecution’s case when the prosecuting counsel indicated that he did not wish to call SP-18 to testify. 27 [75] Paragraph 2.1 of exhibit D52 states that no fingerprint comparison could be carried out in respect of fingerprint marked as ‘AO’ because it contained insufficient characteristics for such purpose. [76] Now, learned counsel submitted that after it had clearly emerged from the cross-examination of SP-17 on 10.2.2015 that there was no fingerprint evidence against the appellant as shown in D52, the prosecution made a U-turn and called SP-18 to testify on 17.4.2015 for the specific purpose of contradicting the fingerprint report made by SP-18 himself. [77] It was further submitted that it is unfair, prejudicial and out of order for the prosecution to call SP-18 in such circumstances and SP-18’s oral evidence on the said fingerprint ‘AO’ on 17.4.2015 in which he positively stated that the fingerprint ‘AO’ actually contained sufficient characteristics for comparison purposes and that he was able to carry out a comparison exercise over the same and had successfully matched with the right forefinger of the appellant, was a fabrication and an afterthought, created long after the trial had commenced in October 2014 and therefore inadmissible in evidence. 28 [78] In the first place, we opined that there is no rule or regulation to prevent the prosecution to call SP-18 to testify in such circumstances. It is the sole prerogative of the prosecution to present its case and evidence in the manner it considered fit. It is equally the sole discretion of the prosecution on how to arrange the calling of its witnesses and the production of the documents deemed relevant to prove its case. It is also the sole discretion of the prosecution to pick which witness to testify or not to testify so long as it is not motivated by ulterior motive or malice or the involvement of the elements of suppression of evidence. The prosecution is also entitled to ‘repair’ its case as the trial progressed. It is apparent that in the appeal before us, there is no such suppression of evidence. The exhibit D52 was freely made available to the defence and the defence had made full advantage of the same to advance the appellant’s case. [79] Now, let us examine what SP-18 had to say about the anomaly in his report D52. His full explanation is in his written statement at paragraphs 4, 5 and 6 at pp. 191, 192, Jilid 3B, RR: “4. Walaupun begitu terdapat kesilapan menaip (Typo) di mana saya telah mengatakan kesan yang bertanda Seri Kembangan Rpt. 1354/12 (AO) tidak boleh dibuat perbandingan kerana tidak cukup sifat pada surat saya bertarikh 16 Februari 2012. Sebetulnya kesan cap jari yang bertanda Seri Kembangan Rpt. 1354/12 (AO) adalah cukup sifat dan telah dibuat perbandingan dengan rekod jenayah di Pusat ini yang mana keputusannya adalah tidak dikesan dengan rekod jenayah di Pusat ini. 29