Tn. Mohd. Radzi bin Abdul Razak v For the 1st Respondent … (45B-30-07/2018 & 45B-51-11/2017)

MARVINRAJ A/L BADUEL GROUNDS A) INTRODUCTION [1] The accused persons above named were charged for the following: “Bahawa kamu bersama-sama dengan Marvinraj a/l Baduel (No. K/P: 990812-14-6407) pada 20.2.2017 di antara jam 3.00 pagi hingga jam 5.00 pagi di tempat tepi jalan hadapan stesyen minyak Petronas, Lot 17292, Jalan MRR2, dalam daerah Sentul, Wilayah Persekutuan Kuala Lumpur telah didapati membunuh Nantha Kumar a/l Kaniapan 2 (No K/P: 770407-14-5633). Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan dibaca bersama seksyen 34 Kanun yang sama.” [2] This case was previously part heard by Justice Azman Abdullah before I took over midstream during the course of the prosecution case. [3] I proceeded to hear the rest of the prosecution case to its conclusion as provided for by section 18 of the Courts of Judicature Act 1964 (CJA) which reads as follows:

Proceedings in High Court to be disposed of by single Judge

Whenever any Judge, after having heard and recorded the whole or any part of the evidence in a proceeding, is unable through death, illness or other cause to conclude the proceeding, another Judge may—

continue with the proceeding from the stage at which the previous Judge left it and— 3

act on the evidence already recorded by the previous Judge; or

(ii) act on the evidence partly recorded by the previous Judge and partly by himself; or

resummon the witnesses and recommence the proceeding.

Where the Judge acts under subparagraph 2(a)(i) he may, either on his volition or at the request of any party to the proceeding, recall any of the witnesses as in respect of any part of the evidence already recorded, or he may take their evidence afresh (emphasis mine) B) PROSECUTION CASE [4] The pertinent facts as adduced by the prosecution emanated mainly from SP1, Sugumaran Balakrishnan, which in essence stated that on 19.2.2017 he requested the deceased to join him for a drink. Later at 1.30a.m. on 20.2.2017, SP1 persuaded the deceased to continue the drinking spree at the PPR Flats, Intan Baiduri. [5] SP1 drove the deceased’s car there because the deceased was by then intoxicated. According to SP1, while there, the first and third accused invited SP1 and the deceased to go to the Petronas Petrol 4 Station located along the Middle Ring Road (MRR2) in the direction from Kepong to Batu Caves. [6] Upon reaching the said Petrol Station, SP1 said that there were others there also including the second and the fourth accused. While SP1 sat in the car, he said that he witnessed a scuffle take place involving the accused persons and the deceased, but he said that as it was dark, he could not really see what happened. [7] At around 5.00 a.m., on 20.2.2017, SP1 sent the deceased back home apparently in an injured condition. The deceased was then taken to the hospital in the deceased’s own car driven by a neighbor where the deceased was shortly pronounced dead, the reason being stated as due to multiple blunt trauma to the face. [8] SP6, Semala a/p Nagalingam, is the wife of the deceased and testified that on 20.2.2017, the deceased said that he was going out to meet a friend at around 1.15a.m. SP6 said that she did not know what happened after that. She said she tried to call the deceased on his phone several times but there was no answer. 5 [9] SP6 said that at around 4.00 or 5.00a.m., the deceased returned with SP1 who told her that the deceased was beaten up. SP6 then said that with the help of a neighbor, the deceased was taken to the hospital. SP6 said she was informed at around 8.00 a.m. or so on 20.2.2017 that the deceased passed away. [10] During the course of the prosecution case, impeachment proceedings were commenced against SP1 which resulted in a ruling that his evidence was impeached. C) ANALYSIS OF THE PROSECUTION CASE [11] Section 302 prescribes the punishment for whoever commits murder. Murder itself is defined in section 300 of the Penal Code. The difference between culpable homicide and murder [12] In evaluating whether the prosecution has successfully made out a prima facie case against the accused persons for murder under section 302, it is important to first distinguish between the offence of culpable homicide under section 299 and murder under section 300. 6 [13] This is because all murder is culpable homicide but not all culpable homicide is necessarily murder. It is therefore imperative for the court to appreciate the fine but discernible difference between the two in order to make the correct finding as to whether or not the evidence disclosed reflects the offence of culpable homicide not amounting to murder or culpable homicide amounting to murder. [14] Section 299 of the Penal Code defines the offence of culpable homicide as follows: "Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." [15] Section 300 of the Penal Code describes murder in the following terms: "Except in the cases hereinafter excepted culpable homicide is murder- 7 a) If the act by which the death is caused is done with the intention of causing death; b) If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; c) If it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or d) If the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid." [16] Section 300 goes on to set out a number of exceptions which operate to reduce murder to culpable homicide not amounting to murder. These exceptions are provocation, exceeding private defence, exceeding the powers of a public servant, sudden fight and consent. [17] From a perusal of both sections 299 and 300, it is clear that some 8 cases of culpable homicide will amount to murder while some will be classified as culpable homicide not amounting to murder. [18] Because of the similarity in wording, the distinction between the two is so fine as to be almost indiscernible. This court is therefore grateful for the assistance of high authority that has emanated from one of the most distinguished legal minds in this country. [19] In the case of Tham Kai Yau v. Public Prosecutor [1976] 1 LNS 159; [1977] 1 MLJ 174, Raja Azlan Shah J (as His Highness was then) held as follows: "....A comparison that frequently arises in the application of sections 299 and 300 is the tenuous contention that section 299 is not a substantive offence and therefore is either murder or culpable homicide according to whether or not one of the exceptions to section 300 apply, and if by reason of the absence of the necessary degree of mens rea an offence does not fall within section 300, it cannot be one of culpable homicide not amounting to murder.....but would amount to causing grievous hurt. In our view, the correct approach 9 to the application of the two sections is this. Section 299 clearly defines the offence of culpable homicide. Culpable homicide may not amount to murder (a) where the evidence is sufficient to constitute murder, but one or more of the exceptions to section 300, Penal Code apply, and (b) where the necessary degree of mens rea specified in section 299 is present, but not the special degrees of mens rea referred to in section 300, Penal Code. We would like in this connection to express the need to bear in mind that all cases falling under section 300 Penal Code must necessarily fall within section 299, but all cases falling within section 299 do not necessarily fall under section 300...." (Emphasis added) [20] The case of Public Prosecutor v. Megat Sharizat Megat Shahrur [2011] 8 CLJ 893 echoed and quoted verbatim the relevant excerpts in Tham Kai Yau (supra) and added: "The first part of section 304, Penal Code covers cases which by reason of the exceptions are taken out of the purview of section 300, clauses (1), (2) and (3) but otherwise would fall within it and also cases which fall within the second part of section 299, but not within 10 section 300, clauses (2) and (3). The second part of section 304, Penal Code covers cases falling within the third part of section 299 not falling within section 300, clause (4). Thus, if death is an imminent result, it falls under s. 300. If on the other hand, that death is a likely result, it falls under s. 299. It would be safe to conclude that all cases under s. 300 would fall under s. 299 as well, but this is not necessarily so vice versa." (emphasis added) [21] See also Poh Weng Nam v. Public Prosecutor [2013] 4 CLJ 1096, Public Prosecutor v. Thenagaran Murugan And Another Appeal [2013] 4 CLJ 364 and Mohd Fazli Azri Jamil v. Public Prosecutor [2013] 1 LNS 1237 which espouses the same principles. [22] Having said all of this, the distinction between section 299 and section 300 of the Penal Code are defined in very similar terms so as to render it fraught with difficulties in deciding whether a case falls under section 299 or 300 including which of the limbs are applicable. [23] From a distillation of the abovementioned authorities however, the 11 position appears to be as follows. The difference between section 299 and section 300 lies in the degree of probability or likelihood that death would result from a particular act i.e. the degree of risk to human life. If death is a likely result of the act, it is culpable homicide, if it is the most probable result, it is murder. If death is imminent, it is also murder. [24] Culpable homicide may not amount to murder where the evidence is sufficient to constitute murder, but one or more of the exceptions to section 300 apply, for example provocation, right of private defence and sudden fight and where the necessary degree of mens rea in section 299 is present but not the special degrees of mens rea referred to in section 300 of the Penal Code. [25] Bearing the above in mind, it is now necessary to consider the ingredients of the offence of murder which the prosecution must establish in order to make out a prima facie case. The necessary ingredients to be proven in a charge of murder under section 302 Penal Code 12 [26] The necessary ingredients that must be proven by the prosecution in a charge of murder was set out in the Court of Appeal case of Sainal Abidin bin Mading v. PP [1999] 4 CLJ 215; [1999] 4 MLJ 497, and in the context of that case were expressed to be as follows: "The ingredients are: [1] That Isnidil bin Rasin is dead; [2] That Isnidil bin Rasin died as a result of injuries sustained by him; [3] That the injuries of Isnidil bin Rasin were caused or the result of the act of the appellant; [4] That in inflicting the injuries upon Isnidil bin Rasin, the appellant either:

caused them with the intention of causing death; or b) caused them with the intention of causing such bodily injuries as the appellant knew to be likely to cause the death; or c) caused them with the intention of causing bodily injuries and such bodily injuries were sufficient in the ordinary course of nature to cause death." i) The said Nantha Kumar a/l Kaniapan is dead 13 [27] The said Nantha Kumar a/l Kaniapan was identified as the deceased by his wife, SP6, albeit through photographs. The deceased was also identified by the Investigation Officer, ASP Tan Loon Chuan (SP10) at the post mortem carried out on the deceased on 21.2.2017. ii) The said Nantha Kumar a/l Kaniapan died as a result of injuries sustained by him [28] SP8 who was the Pathologist who conducted the post mortem on the deceased confirmed that the deceased died from “multiple blunt force trauma to the face”. [29] According to SP8 also the deceased could have died as a result of entry of blood in large amounts into the respiratory tract and lungs which could in turn have caused the deceased to choke and result in his death. [30] The entry of blood was as a result of a crack to the jaw of the deceased as shown in photograph P43(55). SP8 also confirmed that the injuries sustained by the deceased was sufficient in the ordinary course of nature to cause death. 14 [31] On the evidence as a whole, even though it was submitted that there might have been an intervening cause of death caused by delayed treatment and other possible causes, I was satisfied that the prosecution had successfully proven this ingredient. iii) The injuries to the said Nantha Kumar a/l Kaniapan were caused or the result of the act of the accused persons [32] As alluded to above, the main plank of the prosecution case rested upon the testimony of SP1 whose evidence in summary has been outlined above and need not be repeated. Suffice to say that his is the only form of direct evidence linking the death of the deceased to the accused persons. Impeachment of SP1 [33] It transpired however, that the learned judge who heard the case earlier had allowed commencement of impeachment proceedings by the prosecution against SP1 based upon a material contradiction between his verbal testimony in court as compared to his statement given by him to the police on 20.02.2017. 15 [34] As gathered from the submissions advanced by parties, the material contradiction was with respect to the fact that while giving oral testimony in court, SP1 said that as the scene was dark, he could not see the scuffle he said took place while in his written statement given to the police earlier, he said he saw some of the accused hit the deceased. [35] When asked why the versions differed, SP1 said that one of the accused, namely, Marvin, the fourth accused, told him all of this. In answer to a question from the court, SP1 agreed that his written statement was based upon what he was told by Marvin. [36] When asked by the court again whether he had told the truth, SP1 merely responded by saying that he did not know what to tell the investigating officer who had recorded the statement. [37] Thereafter, the recording from the judge’s notes appear to be, “SP1 mengakui contradiction to recording officer, SP1 failed to give explanation as to why there was a contradiction. (sic)Allowed the impeachment proceeding.” 16 [38] Although it is not readily apparent, taking this in its overall context, this can only mean that the learned judge at that juncture had made a ruling that as SP1 could not furnish a reasonable explanation for the contradiction, that his evidence was treated as being impeached. [39] The fact that the previous judge had made an immediate ruling in respect of impeachment was confirmed by both the learned Deputy and learned defence counsels save for learned counsel for the 4th accused who was not on record at the time. My own perusal of the handwritten notes of the previous judge left me with the same impression. [40] The learned judge, based on the decision in the case of Public Prosecutor v Vellertore a/l Ponnusamy [2011] 8 MLJ 94 which also cited several other cases, and the submissions by learned defence counsel, was well within his rights to make an immediate ruling that SP1’s evidence was impeached. [41] The proposition contended for in Vellertore’s case is supported by the following passage in that case as follows: 17 “But a court is not obliged, at the close of an impeachment exercise, to make an immediate ruling on the matter (see Somwang Phattanasaeang v Public Prosecutor [1992] 1 SLR 850; Kwang Boon Keong Peter v Public Prosecutor [1998] 2 SLR 592). Indeed, it was held by the Federal Court per Eusoffe Abdoolcader FJ, in Dato Mokhtar Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232, that a witness’s credit ‘stands to be assessed as a whole together with the rest of the evidence at the appropriate stage, that is to say, at the close for the case for the prosecution or for the defence, as the case may be. No immediate order of a summary nature can or should be made … and the right of cross-examination or re-examination according to the circumstances should not be denied as it might well be that in the exercise of such right his credit might be repaired, restored or re-established’, and it was held by the Singapore Court of Appeal, in Syed Abdul Aziz & Anor v Public Prosecutor [1993] 3 SLR 534, that Muthusamy v Public Prosecutor does not support any proposition that the court is obliged, at the end of the impeachment exercise, to make an immediate ruling on the credit of the witness. Nonetheless, in Syed Abdul Aziz & Anor v Public Prosecutor, the Singapore Court of Appeal accepted that 18 ‘there can of course be cases where a court confronted with a materially inconsistent previous statement made by a witness is prepared at that stage to indicate that the witness is not worthy of credit’, and also more or less agreed that in such cases the court is obliged to make an immediate ruling. The case of Yusof bin A Samad v Public Prosecutor [2000] 4 SLR 58 is further, albeit persuasive, authority that the court may make an immediate ruling. And it would appear that an immediate ruling serves better the ends of justice. In the first place, without an immediate ruling, both prosecution and defence would be only left in a cleft stick. And in the second place, if the ruling is made at the close of the case for the prosecution or defence, as the case may be, it would be too late for the prosecution or defence, as the case may be, to repair, restore or re-establish, even if it could, the credit of the witness at the close of the case ‘for the prosecution or defence, when the case at that stage would have closed. On the other hand, an immediate ruling, even if impeaching the credit of the witness, would still leave a window to the prosecution or defence, as the case may be, to repair, restore or re-establish the credit of the witness. In any event, an 19 immediate ruling on the credit of the accused would not impair the conduct of the defence, and the court in the making of an immediate ruling could only err, only on the side of the defence’. An immediate ruling would not impair the conduct of the defence.” (emphasis added) [42] Therefore, although a court is not obliged, at the close of impeachment proceedings, to make an immediate ruling on the matter, it was not wrong to do so for the reasons advanced above. Effect of impeachment [43] The next issue that arises for consideration is what is the effect of that ruling? [44] In the case of Matthew Lim v Game Warden, Pahang [1960] 1 MLJ 89 it was held: “Once this has been done and it is proved that the previous statement when compared with the evidence given in Court contains material inconsistencies the witness's credit is impeached and his evidence 20 becomes worthless because the witness himself has been shown to be unworthy of credit.” [45] In Koay Chooi v Regina [1955] 1 MLJ 209, it was held: “What is perhaps more important is that this witness having been discredited by proof of an entirely inconsistent statement to the Police the learned Magistrate appears to have given some weight to his evidence, which in my opinion he should not have done.” [46] See also Public Prosecutor v Munusamy [1980] 2 MLJ 133. [47] Notwithstanding the ruling made by the previous learned judge in respect of impeachment, learned counsel for the defence proceeded with cross-examination of SP1, as did the learned Deputy with re-examination. A perusal and examination of the evidence extracted from SP1 by this exercise does nothing however to ameliorate the prosecution case. [48] In accordance with the above authorities that the evidence of a 21 successfully impeached witness becomes worthless, I find that the whole of the evidence of SP1 had been rendered worthless and therefore is not to be taken into consideration in the evaluation of the prosecution case. [49] Neither party made an application before me to recall SP1 to give testimony under section 18(3) of the CJA or its equivalent under section 261 of the Criminal Procedure Code after I took over the conduct of the trial. [50] As the testimony of SP1 has been rendered worthless and therefore omitted altogether from consideration, this of course leaves the prosecution case without the benefit of any direct evidence. [51] The question to be addressed now is whether or not there exists any circumstantial evidence to connect the accused persons to the offence? Circumstantial evidence [52] Where the evidence is circumstantial, certain principles of law are 22 called into operation. The following cases afford useful guidelines as to what they are. [53] In the case of Public Prosecutor v. Azilah Hadri & Anor [2015] 1 CLJ 579, it was held: "The prosecution's case rests substantially or entirely on circumstantial evidence. It is trite that direct evidence of the commission of the offence is not the only source from which a trial court can draw its conclusion prior to a finding of guilt. Conviction can be secured based on circumstantial evidence provided that:

the circumstances from which the conclusion of guilt is to be drawn has been established;

the facts so established is consistent with the hypothesis of the guilt; and

circumstances should be of a conclusive nature in that the chain of evidence is complete so as to exclude any conclusion consistent with the accused person's innocence (See Magendran Mohan v. PP [2011] 1 CLJ 805; [2011] 6 MLJ 1, Mazlan Othman v. 23 PP [2013] 1 CLJ 750; [2013] 1 AMR 615; Dato' Mokhtar Hashim & Anor v. PP [1983] 2 CLJ 10; [1983] CLJ (Rep) 101; Chan Chwen Kong v. Public Prosecutor [1962] 1 LNS 22). It is worth noting that the court had this to say in PP v. Letchumanan Krishnan [2007] 1 LNS 409; [2008] 3 MLJ 290: It is axiomatic under our case-law, and we cite the principle repeatedly, that circumstantial evidence alone may be sufficient to support a conviction for murder since the law makes no distinction between circumstantial evidence and direct evidence and, if circumstantial evidence is used to provide for a conviction; it must be inconsistent with any other hypothesis than that of guilt of the accused. (See e.g., Kartar Singh & Anor v. R [1952] 1 LNS 43; [1952] 2 MLJ 85; Idris v. PP [1960] MLJ 296, Sunny Ang v. PP [1965] 1 LNS 171; [1966] 2 MLJ; Karam Singh v. PP [1967] 1 LNS 65; [1967] 2 MLJ 25; Chong Kim Siong v. PP [1967] 1 LNS 18; 1 MLJ 36; PP v. Hanif Basree Abdul Rahman [2007] 2 CLJ 33; [2007] 2 MLJ 320 and Juraimi bin Jussin v. PP [1998] 2 CLJ 383; [1998] 1 MLJ 537). Faizal Ali J when delivering the judgment of the Supreme Court in 24 Ram Avtar v. The State (Delhi Administration) AIR [1985] SC 1692, had occasion to state: At the very outset we might mention that circumstantial evidence must be complete and conclusive before an accused can be convicted thereon. This, however, does not mean that there is any particular or special method of proof of circumstantial evidence. We must, however, guard against the danger of not considering circumstantial evidence in its proper perspective, e.g., where there is a chain of circumstances linked up with one another, it is not possible for the court to truncate and break the chain of circumstances. In other words where a series of circumstances are dependent on one another they should be read as one integrated whole and not considered separately, otherwise the very concept of proof of circumstantial evidence would be defeated. The above cases have clearly laid down certain guidelines, whereupon in the absence of direct evidence, the prosecution may resort to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under condition where concealment is highly probable. If direct evidence is insisted under all circumstances, a successful prosecution of vicious 25 criminals, who have committed heinous crimes in secret or secluded places, would be near impossible. In this case not only was the heinous crime committed at a secluded place but the deceased's body was blasted beyond recognition. Only fragments of bones were found." (emphasis added) [54] The Court of Appeal case of Yii Soon Ho v. Public Prosecutor [2014] 1 LNS 386 considered the following leading authorities on the subject of circumstantial evidence, namely, Sunny Ang v. Public Prosecutor [1965] 1 LNS 171; Jayaraman & Ors v. Public Prosecutor [1982] 1 LNS 126; [1982] 2 MLJ 306; Public Prosecutor v. Magendran Mohan [2005] 3 CLJ 592; Chan Chwen Kong v. Public Prosecutor [1962] 1 LNS 22; [1962] MLJ 307; Karam Singh v. Public Prosecutor [1967] 1 LNS 65; [1967] 2 MLJ 25; and Chang Kim Siong v. Public Prosecutor [1967] 1 LNS 18; [1968] 1 MLJ 36. [55] The illuminating judgement of Varghese George JCA in Yii Soon Ho v. Public Prosecutor (supra), opined that the combined effect of all these cases was that a conviction based on circumstantial evidence 26 was good in law if the cumulative effect of all evidence lead to an irresistible conclusion that it was the accused who committed the crime. This is what His Lordship said: "Suffice it here to reproduce some guiding excerpts from the aforecited authorities, to support that position. In Sunny Ang's case (where the deceased's body was never found) the Federal Court noted: "...The second question to which I must draw your attention is that in this case, depending as it does on circumstantial evidence, is whether the cumulative effect of all the evidence leads you to the irresistible conclusion that it was the accused who committed this crime. Or is there some reasonably possible explanation such, for example - was it accident? " Thomson CJ's comments in Chan Chwen Kong were in the following terms: "...where the evidence is wholly circumstantial what has to be 27 considered is not only the strength of each individual strand 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? " In Karam Singh, HT Ong FJ stated: "...In a case where the prosecution relies on circumstantial evidence, such evidence must be inconsistent with any other hypothesis than that of the guilt of the accused..." And in Chang Kim Siong, the Federal Court emphasised that: - "The onus on the prosecution where the evidence is of a circumstantial nature is a very heavy one and that evidence must point irresistibly to the conclusion of the guilt of the accused. If there are gaps in it, then it is not sufficient." (emphasis added) [56] It is thus clear that although a conviction can be sustained by reliance on circumstantial evidence, it must admit of no other possibility other than that it was the accused or accused persons who committed the murder. 28 [57] It is also clear that 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. [58] The prosecution called the wife of the deceased, Semala a/p Nagalingam (SP6) whose testimony did not in any manner assist the prosecution case as she only witnessed the deceased leave the house and return later with SP1 in an injured condition. [59] Her testimony does not in any event establish or provide a link to the accused person’s with regard to the charge. The rest of the prosecution witnesses were merely formal and similarly does not establish any link between the offence committed and the accused persons. [60] The testimony of the remaining witnesses including the investigation officer (SP8) based upon his investigations at the most suggests that the third and the fourth accused were present at the scene viz. at the 29 side of the road near the Petronas Station and had assisted in placing the deceased in a car after he was assaulted. [61] The witness statement of SP8 however, tendered and admitted as “WSSP10”, contained numerous portions that were objected to by the defence on account of these emanating from the statements given by the accused persons under section 112 of the Criminal Procedure Code (CPC). [62] These were clearly inadmissible by reason of the provisions of section 113 (2) CPC which prohibit the statement given by the accused to be used against him even for purposes of impeachment. I therefore allowed the defence application to expunge or delete the offending portions in “WSSP10”. These were therefore excluded from consideration. [63] The forensic evidence relating to the blood stains found on the shirt belonging to the fourth accused were of no assistance to the prosecution as they were found to be his own blood stains and so 30 could have been as a result of an injury he sustained of his own accord. [64] Exhibit P50 which is the Identification Parade Report P50 (A-D) of SP1 was of no assistance to the prosecution either in light of his impeachment and also therefore excluded from consideration. [65] During the re-examination of SP8, he said that the third and fourth accused were both present at the scene and that they had placed the deceased in the car after he was assaulted at which time the deceased was still very much alive. Then there is the sim card analysis that places the first accused at the scene. [66] The evidence of the I.O (SP8) in respect of the presence of the third and fourth accused at the scene however, emanates from the witness statement of SP8 (“WSSP 10”) large portions of which were expunged for the reasons expressed above. [67] With regard to the sim card analysis, there is firstly, no search list in respect of the items seized from the first accused and therefore no 31 documentary evidence to prove the presence of the first accused at the scene. [68] Now even assuming for a moment that this was adequately proven, at the most it can be determined that these accused persons were merely present at the scene. This of itself and on its own does not mean that any of them had anything to do with the assault of the deceased which led to his death. [69] There are several inferences that can be drawn from the factual matrix and none of these conclusively point to the guilt of the accused persons. The evidence does not also lead to the irresistible inference that it was the accused persons and them alone who were responsible for the death of the deceased. [70] The available strands of evidence do not therefore converge sufficiently to form a rope strong enough to hang the accused persons. [71] The evidence also does not in any way show any pre-arranged plan 32 or prior concert between the accused persons such as would be sufficient to conclude or infer any form of common intention under section 34 of the Penal Code between them to commit the crime. [72] Under all the circumstances therefore, I find that the prosecution has failed to prove the third ingredient of the offence, namely that the injuries sustained by the deceased were caused or the result of the act of the accused persons. [73] There was accordingly no need to go further and discuss which of the limbs under s. 300 Penal Code applied in this case and more so, whether the evidence disclosed an offence under section 299 instead. Decision at the end of prosecution case [74] At the end of the prosecution case, a maximum evaluation of the evidence must be carried out in order to determine whether the prosecution has established a prima facie case. See PP v. Dato' Seri Anwar Ibrahim (No. 3) [1999] 2 CLJ 215; [1999] 2 AMR 2017; [1999] 2 MLJ 1, Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734; 33 [2003] 2 AMR 89, Balachandran v. PP [2005] 1 CLJ 85 and PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457; [2005] 6 AMR 203. [75] Having carefully sifted through the evidence on a maximum evaluation basis, I asked myself the all-important question, "were I to call for the defence of the accused persons and they elected to remain silent, would I convict them of the charge?" See Looi Kow Chai & Anor v. PP (supra). The answer was in the negative. [76] I therefore find that the prosecution has failed to make out a prima facie case against all the accused persons in respect of the charge of murder under s. 302 Penal Code. [77] In accordance with s. 180(2) of the Criminal Procedure Code, I acquit and discharge all the accused persons without calling upon them to make their defence. Dated: 04 December 2019 34 sgd. ( COLLIN LAWRENCE SEQUERAH ) Judge High Court of Malaya Kuala Lumpur Counsels: For the Prosecution … Tn. Mohd. Radzi bin Abdul Razak Public Prosecutor [Attorney General’s Chambers] For the 1st Respondent … En. Al Sabri bin Hj Ahmad Kabri [Messrs. Al Sabri & Co.] For the 2nd Respondent … En. K. Annamalai Ramu a/l Kandasamy [Messrs. K.A Ramu Vasanthi & Associates] For the 3rd Respondent … En. K. Ponnusamy [Messrs. R.S Seelan, Parames & Co.] For the 4th Respondent … En. Ravin Jay [Messrs. Haijan Omar & Co.]