XXXX (AB-45B-1-01/2020)

Both were found guilty of the charge and convicted under s. read with s.34 of the Penal Code on 13.1.2026. However, as they were children at the time of the offence, the Court ordered them to be detained during the pleasure of His Majesty the Ruler of Perak Darul Ridzwan as provided for under s. 97(2) of the Child Act 2001. 5 Both child offenders have filed their respective Notices of Appeal to the Court of Appeal against the whole of this Court’s decision on 14.1.2026 and 16.1.2026. This Grounds of Judgment contain my reasons for ordering the same upon both child offenders. 10 FACTS OF THE CASE

On 7.7.2019 at 12.18 pm, whilst on duty at the Bilik Gerakan Ibu Pejabat Daerah Polis Taiping, Kpl Mohd Zul Fadil Bin Md Zin (SP6) received an emergency call informing of a death at the address 15 above (which was later known as the family home of CO2 and the deceased) and he made the First Information Report as per P20. Based on the FIR, at 1.05 pm the Investigating Officer on duty, ASP Khairol Bin Haron (SP14) commenced investigations into the case which was classified as murder. SP14 and his assistant, L/Kpl 20 Muhammad Arief Bin Marhalim (SP4) went to the said address to conduct intital interviews with the family members of the deceased and take photographs. When they arrived there, they found the body of the deceased at the back of an unoccupied house belonging to one Ng Bun Peng (SP15). The said house No. 11 was situated next 25 to the deceased’s family home (on the left side).

SP14 saw that the body had started to decompose and there were injuries on the deceased’s neck, both hands were tied at the back 3 and the body was wrapped in a grey-colored comforter and large clear plastic bag (partly opened). Then Forensics Team led by Insp Anbarasu A/L Gobi (SP5) conducted investigations there and at the deceased’s house where they collected samples for DNA analysis and numerous items suspected to have been used in the 5 commission of the offence. The deceased’s remains was sent to the Jabatan Perubatan Forensik at Hospital Raja Permaisuri Bainun in Ipoh on the same day. At 6.45 pm that day, Dr. Mohammad Shafie Bin Othman @ Osman (SP11) conducted a postmortem upon the deceased’s body where the cause of death was stated as 10 “Pendarahan Berlebihan Akibat Luka Tikaman di Leher” (Excessive Bleeding Due to Stab Wound on the Neck).

Based on his interview with the family members, SP14 found that the deceased had been reported missing about 2 days prior to the 15 discovery of his remains. His sister, SP12, had made a police report (P23) that the deceased left his house on 5.7.2019 at 7.30 am on his motorcycle to go to school. When she arrived home from work that night, his motorcycle was there but he was not. She tried contacting him on his mobile telephone but could not get through. 20 The police was able to gather initial information that CO2 was at home on 5.7.2019 when CO1 and a few of his friends came to visit her on that Friday morning.

Insp La Paula Bin Abd. Muis (SP13) was the officer tasked to arrest 25 suspects and anyone with relevant information in this case to assist in the investigation. Initial investigations by the police led to the arrest of CO1 and CO2 on 7.7.2019 at 1.00 pm and 2.00 pm, respectively, by SP13. CO2 led the police to her house where they 4 seized, amongst others, an unbranded black-hilted knife (marked as KH8 by SP14 and P5(I1) by the Court) and some other items from the kitchen namely a plastic jar containing some chilli powder (P5(L1)), a roll of raffia string (P5(M1)) and a mop (P7(A)). SP1 also seized her Samsung mobile telephone (marked as K9 by SP13 and 5 by the Court as P4(E1). Then they went to an area in Taman Saujana not far from the house where a Kiwi brand black-hilted knife (marked as KH9 by SP14 and P5(J1) by the Court) was recovered from a drain at Lorong Saujana 1 together with some blood-stained cloths. Meanwhile, on the same day, SP13 had seized CO1’s 10 mobile telephone (marked as K8 by SP13 and P4(I1) by the Court). Subsequently, through a series of arrests, the police also seized a number of mobile telephones and detained CO1’s girlfriend (SP8) and his friends (SP9 and SP10) to assist in the investigations. 15 [7] Through police investigations, it was revealed that in the morning of 5.7.2019, SP8 had gone to CO2’s house at 9.00 am upon her invitation. Then CO1 arrived with his friends SP9 and SP10 where they just hung out and played games on their mobile telephones. At around 12.15 pm, the deceased arrived home and saw them there. 20 CO1 and his friends as well as SP8 left the house through the kitchen door and hid a short distance away from the house at a forested area. However, in their haste to leave the house, SP9 inadvertently left his mobile telephone (marked as K1 by SP14 and P4(D1) by the Court) on the table at the lounge. 25

CO1 then made a call to SP9’s telephone which was answered by the deceased. The deceased ordered CO1 and his friend to come to his house if they wanted the telephone back. Not long after, CO1 5 and SP9 returned to the house but the deceased refused to give his telephone back and said he would only give it to SP9’s father. Then he agreed to return it to SP9’s elder brother whom he knew and told the 2 boys to go home. They then took a Grab ride and picked up SP10 who was waiting at a cake shop nearby. The 3 boys went to 5 Burmese Pool and hung out at a small hut there. CO1 appeared to be angry and told his friends that he wanted to bring the deceased to his grandfather’s orchard nearby and kill him. SP9 and SP10 did not agree with CO1 and wanted to go home. Thereafter, they all went back to their school and waited for their rides to go home. SP9 10 then attended tuition from 4.30 pm until 7.00 pm. After SP9 finished tuition, his father picked him up and asked him why his telephone was with CO1. SP9 related about what had happened that day to his father. SP9’s father drove him to CO1’s house whereupon SP9 met CO1 who returned his telephone and said while laughing, “saya 15 sudah habiskan SM”. SP9 was confused by CO1’s reaction but he just went home with his father.

Meanwhile SP8, after “escaping” from CO2’s house, stopped at Taiping Sentral to pick up her bicycle and returned home around 20 12.30 pm. At 1.45 pm, she received a call from CO1 that he was in front of CO2’s house where he allegedly told her that “sekarang kamu akan tahu siapa saya”. Then around 4.00 pm she received a voice message from CO2 stating that CO1 had killed her brother. She left a message for CO2 to make a video call as she was 25 shocked to hear the latter’s message. CO2 made a video call to her telephone and SP8 saw the deceased lying motionless on a bed with CO1 sitting on his body. There was a white cloth stained with blood around the deceased’s neck and CO1’s clothes too appeared 6 to be covered with blood. When SP8 asked him why he did that, CO1 allegedly threatened her that “kalau kamu tinggalkan saya, kamu akan menerima nasib yang sama.”. She was frightened by the whole thing and switched off her telephone. She threw it into a sewage pond the next day after deleting all the messages. It was 5 recovered by the police 1 – 2 days later (exhibit KA1 was marked as P4(C1) by the Court).

The prosecution contended that the deceased was murdered by both child offenders when CO1 later turned up alone at the house 10 that afternoon to reclaim SP9’s telephone. Both child offenders had overpowered the deceased and slit his neck and hands during the attack. They tied his hands at the back as seen in the photographs. The incident happened at the room on the groundfloor of the house and later they had dragged the deceased’s body (which was placed 15 in the grey comforter and large clear plastic bag) to the back of the next door neighbour’s house. Therefore, upon the Deputy Public Prosecutor’s (DPP) instructions, the child offenders were charged for the murder of the deceased. SP8, SP9 and SP10 were the prosecution witnesses but their credibility were attacked by 20 counsels for the child offenders. It was contended that the prosecution did not produce any credible evidence to back up its story and that SP9 was the only one who murdered the deceased because he was bigger in size than the rest of them. 25 [11] The prosecution relied on direct and circumstantial evidence to prove its case that the offenders had murdered the deceased. It was an undisputed fact that SP9’s telephone triggered the whole “incident”. THE PROSECUTION CASE [12] The prosecution called 15 witnesses to prove its case. The order of the prosecution witnesses at the trial was as follows: i. Haznan Bin Hashim, Chemist (SP1) ii. Insp. Muhammad Adib Bin Rasol, Forensics Laboratory (SP2) 5 iii. L/Kpl Mohd Zulkifli Bin Kadir, Photographer (SP3) iv. L/Kpl Muhammad Arief Bin Marhalim, Photographer (SP4) v. Insp Anbarasu A/L Gobi, Forensics Department (SP5) vi. Kpl Mohd Zul Fadil Bin Md Zin, Complainant (SP6) vii. Harbaran Singh A/L Harcharan Singh, Neighbour (SP7) 10 viii. S A/P S, CO1’s girlfriend (SP8) ix. V A/L K, CO1’s friend (SP9) x. J A/L S, CO1’s friend (P10) xi. Dr. Mohammad Shafie Bin Othman @ Osman, Pathologist (SP11) 15 xii. S A/P S, deceased’s elder sister (SP12) xiii. Insp La Paula Bin Abd. Muis, Arresting Officer (SP13) xiv. ASP Khairol Bin Haron, Investigating Officer (SP14) xv. Ng Bun Peng, House owner (SP15). 20 [13] The main facts of the case are as set out above. From the facts above, none of the prosecution witnesses saw the child offenders killing the deceased. However, upon a maximum evaluation of all the evidence before it, as will be discussed below, the Court was satisfied that the prosecution had proved a prima facie case and all 25 the ingredients of the offence. The Court was satisfied that the evidence pointed irresistibly to the conclusion of guilt of both child offenders and no one else, despite the assertions of their counsels.

SP1, SP2, SP3, SP4, SP5, SP6, SP11, SP13, and SP14 all gave formal evidence of their roles in the case. SP14 as the Investigation Officer of the case had received the suspects (SP8, SP9 and SP10 were also arrested to assist in the investigation but later released by the police) and exhibits gathered by SP13 and SP5 (forensic 5 department), recorded statements from witnesses whom were acquainted with the case, and received the post-mortem report from SP11 as well as the results of the DNA analysis from SP1 and PDRM Forensic Laboratory officer i.e. SP2’s analysis of the images from the various telephones seized in the investigation. 10 ISSUES FOR CONSIDERATION OF THE COURT [15] The prosecution must prove these 4 ingredients of the offence of murder in order for the defence to be called on that charge, as follows:

the deceased was S A/L S (IC No.: 021209-08-XXXX);

the death of the deceased was due to the injuries sustained;

the injuries sustained by the deceased were inflicted upon him by the child offenders; and

the act(s) of the child offenders were committed with common 20 intention to cause injuries to the deceased, which were sufficient in the ordinary course of nature to cause death. [16] There was no doubt in regard to the identity of the deceased; the first ingredient of the offence has been proved. The Court concluded also that the deceased died from the fatal injuries sustained to his 25 neck; the second ingredient has been proved. The more contentious issues were whether the actus reus was coupled with mens rea to murder, and the identity(s) of the perpetrators of the crime. EVALUATION AND FINDINGS OF THE COURT [17] The burden of proof on the prosecution is to prove the charge beyond a reasonable doubt. The duty of the Court at the end of the prosecution stage is to conduct a maximum evaluation of the evidence adduced by the prosecution to determine whether a prima 5 facie case have been made out against the child offenders, which if unrebutted would warrant his conviction. Section 180(4) provides that a prima facie case is where the prosecution has adduced credible evidence proving each ingredient of the offence, which if unrebutted or unexplained would warrant a conviction. 10 [18] In Balachandran v PP [2005] 1 AMR 321, Augustine Paul FCJ succinctly stated: “A prima facie case is one that is sufficient for the accused to answer, and the evidence adduced must be such that it can only be surmounted by evidence in 15 rebuttal. The force of that evidence must, if unrebutted, be sufficient to induce a state of belief that the facts as they stand are a stated in the charge. In order to make a finding the court must, at the close of the prosecution’s case, undertake a positive evaluation of the credibility and reliability of all the evidence adduced to determine whether all the elements of the offence have been established. If 20 the evidence is unrebutted, and the accused remain silent, he must be convicted. Therefore, the test to be applied at the end of the prosecution’s case is whether there is sufficient evidence to convict the accused if he chooses to remain silent, which if answered in the affirmative means that a prima facie case has been made out. This requires a consideration of 25 the existence of any reasonable doubt in the prosecution’s case, which if it exists, cannot lead to the finding of guilt of a prima facie case having been made out. [Emphasis added] 30 [19] In regard to the second and fourth ingredients of the offence, the Court heard the evidence of the pathologist, SP11. He stated in the post-mortem report marked as P22 (at page 2) the following: PEMERIKSAAN LUARAN Jasad merupakan seorang lelaki yang telah dikenalpastikan identitinya sebagai penama di atas oleh pegawai penyiasat polis ASP Khairol Bin Haron. Mayat telah dibawa di dalam plastik mayat warna putih. Di dalamnya, mayat lengkap berpakaian, dalam keadaan berikat dan dibungkus dengan selembar 5 plastik lutcahaya putih yang besar. Item-item pada mayat adalah seperti berikut: dicemari darah. dalam keadaan songsang (inside out) saiz 25. 20 25 Panjang mayat 169 sm dan berat 53.6 kg. ... 30 PEMERIKSAAN DALAMAN Kecederaan No 3 terdiri dari satu luka tikaman yang menghala dari kanan ke kiri, ke bawah ~20* dan ke sedikit ke belakang secara relatif dengan tubuh, sedalam 5 sm dan didapati telah mencederakan struktur otot-otot hadapan leher, kelenjar tairoid serta salur pernafasan (trakea). 35 Kecederaan No 4 merupakan satu luka hirisan yang disertai dengan luka tikaman ditengahnya sedalam 3 sm, menghala dari kanan ke kiri dan sedikit ke bawah secara relatif dengan tubuh, menembusi tisu lembut serta otot-otot di hadapan leher. Kecederaan No 5 merupakan satu luka tikaman sedalam 3 sm, menghala dari kanan ke kiri, sedikit ke bawah ~15* dan sedikit ke hadapan secara relatif dengan tubuh, hanya menembusi kulit lemak leher sahaja. 5 ... Mulut dan leher Bibir tidak pecah. Lidah tidak tergigit. Tonsil tidak membesar. Tulang tekak tidak patah. Kelenjar tairoid ditembusi di sebelah kanan. Otot-otot di hadapan leher terpotong. Salur darah utama leher utuh. Salur pernafasan (trakea) terpotong di 10 bawah halkum. Tulang tengkuk tidak patah. RUMUSAN Pemeriksaan menunjukan si mati yang pucat, telah membusuk dan mula berulat. Pemeriksaan mendapati terdapat kelompok luka-luka tikaman dan hirisan pada hadapan leher. Hampir semua luka-luka tersebut adalah cetek 15 kecuali satu luka tikaman (kecederaan No 3) yang didapati telah menembusi kelenjar tairoid selain dari memotong trakeanya. Luka tikaman ini telah mengakibatkan perdarahan berlaku untuk suatu tempoh masa yang akhimya membawa kepada kematiannya. Selain dari pendarahan yang keluar dan tubuh, terdapat tanda yang menunjukan sebahagian dari pendarahan yang 20 berlaku didapati telah disedut ke dalam paruparu yang dilihat boleh mempercepatkan kematiannya. Sebahagian lagi pendarahan telah ditelan masuk ke dalam perut. Kecederaan tikaman yang dialaminya adalah berpunca dari tikaman suatu objek yang tajam, pipih dan meruncing. Panjang objek tersebut lebih 25 kurang 5 sm. Objek yang sama boleh juga menyebabkan luka-luka hirisan yang ada pada tubuh. Luka-luka pada kedua-dua tangan adalah bersesuaian dengan tindakan cubaan mempertahankan dir/pergelutan. Tidak terdapat sebarang tanda penyakit biasa yang dikesan yang boleh 30 menyebabkan atau menyumbang kepada kematiannya pada masa itu. Berdasarkan kepada keadaan mayat, saya berpendapat si mati telah mati dalam tempoh beberapa hari dari waktu mayat diterima di Jabatan Forensik Hospital Raja Permaisuri Bainun. [20] In regard to the third and fourth ingredients of the offence, the prosecution relied on direct and circumstantial evidence to prove that the injuries sustained by the deceased were inflicted upon him by the child offenders and that the act(s) of the child offenders were committed with common intention to cause injuries to the deceased, 5 which were sufficient in the ordinary course of nature to cause death. In the case of PP v. Magendran Mohan [2005] 3 CLJ 592, Balia Yusof J had deliberated upon the issue of circumstantial evidence as follows: 10 “…It has always been emphasised that wherever circumstantial evidence is relied on by the prosecution in building up its case against an accused person, any such piece of evidence must tend only in one direction, that is to say, suggest or lend support to an inference of guilt. (see Muniandy and Anor v. PP [1973] 1 MLJ 179). In Kamis v. PP [1974] 1 LNS 59; [1975] 1 MLJ 46, the 15 appellant was convicted on a charge of murder and was sentenced to death. The evidence against him were entirely circumstantial and on an appeal to the Federal Court, his conviction was affirmed. The learned trial judge had in his summing up to the jury stated that “for a court to rely on circumstantial evidence, the evidence when considered must point only to the guilt of the accused; it 20 must not be capable of any other interpretation of any other meaning”. The Federal Court in considering the summing up by the trial judge said that it was impossible to say that there was a miscarriage of justice. Blackstone’s Criminal Practice 1991 at pp. 1674-1675 stated the following on circumstantial 25 evidence: Circumstantial evidence is to be contrasted with direct evidence. Direct evidence is evidence of facts in issue. In the case of testimonial evidence, it is evidence about facts in issue of which the witness claims to have 30 personal knowledge, for example, 'I saw the accused strike the victim'. Circumstantial evidence is evidence of relevant fact, i.e. facts from which the existence or non existence of facts in issue may be inferred. For example, the tribunal of fact is likely to attach more weight to a variety of individual items of circumstantial evidence, all of which lead to the same 35 conclusion, than to direct evidence to the contrary coming from witnesses lacking in credibility. (emphasis ours) Pollock CB likening circumstantial evidence to a rope comprised of several cords, said: “...One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength....” 5 ... The Federal Court, in Chang Kim Siong v. PP [1968] 1 MLJ 36 stated: “…The onus on the prosecution where the evidence is of a circumstantial nature is a very heavy one and that evidence must 10 point irresistibly to the conclusion of the guilt of the accused. If there are gaps in it, then it is not sufficient. Further deliberation on the issue of dealing with circumstantial evidence, the courts of this country has always been guided by the three tests formulated by 15 the Indian Supreme Court in Chandmal & Anor v. State of Rajasthan (AIR) [1970] SC 917 where Sarkaria J said: It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the 20 circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that 25 within all human probability the crime was committed by the accused and no one else. That is to say the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused’s guilt. (See also: Ghambir v. State of Maharashtra AIR [1982] SC 1157). 30 [Emphasis added] The facts relevant to the deceased’s death i. The fatal injury to the deceased [21] SP11’s evidence in the postmortem report P22 stated his finding 35 that “Hampir semua luka-luka tersebut adalah cetek kecuali satu luka tikaman (kecederaan No 3) yang didapati telah menembusi kelenjar tairoid selain dari memotong trakeanya. Luka tikaman ini telah mengakibatkan perdarahan berlaku untuk suatu tempoh masa yang akhimya membawa kepada kematiannya. Selain dari pendarahan yang keluar dan tubuh, terdapat tanda yang menunjukkan sebahagian dari pendarahan yang berlaku didapati telah disedut ke dalam paru-paru yang dilihat boleh mempercepatkan kematiannya.”. The deceased died a slow but 5 sure death due to injury No. 3 i.e. “Satu luka tikaman pada tepian hadapan leher sebelah kanan berukuran 4.5 x 2 sm dan sedalam 5 sm.”. Some of the blood had accumulated in his lung, and which had accelerated his death. 10 ii. Weapon of offence [22] From the expert opinion of SP11 that “Kecederaan tikaman yang dialaminya adalah berpunca dari tikaman suatu objek yang tajam, pipih dan meruncing. Panjang objek tersebut lebih kurang 5 sm.” I found that the exhibits P5(I1) and P5(J1) which were most likely the 15 weapons used to cause the fatal injuries to the deceased’s neck as well as the wounds on the other parts of his body. P5(I1) was the unbranded knife shown by CO2 to SP13 at the kitchen of her house on 7.7.2019. The Court was mindful not to admit any admission by any of the child offenders when the prosecution sought to adduce 20 evidence under s. 27 of the Evidence Act 1950. However, I admitted this piece of evidence as conduct under s.8 of the Act. [23] I refer to Evidence Practice and Procedure, 4th Edition by Augustine Paul (Lexis Nexis) at page 66 where the author explained: 25 “Evidence of conduct may be proved by various ways.

Incriminating behaviour of the accused.

The act of pointing out. The act of pointing out is admissible, irrespective of section 27 of the Act, as evidence relating to the conduct of an accused person when 30 confronted or questioned by a police officer during the course of an investigation. Per Arifin Zakaria CJ (Malaya) in Amethevelli Ramasamy v Public Prosecutor [2009] 3 CLJ 109, 122 (FC) at para [31]: The inadmissibility of the information supplied by the appellant does not 5 affect the admissibility of the evidence of her subsequent conduct under s 8 of the Evidence Act irrespective of s 27. As Chinnappa Reddy J. Said in Prakash Chand v State AIR SC 400 at p 404: The evidence of the circumstances, simpliciter, that an accused person led a police officer and pointed out to the place where stolen articles or 10 weapon which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously will or antecedent to such conduct fall within the purview of section 27 of the Evidence Act (vide Himachal Pradesh 15 Administration v Om Prakash AIR [1972] SC 975).”. [Emphasis added] [24] The Court also admitted the Kiwi brand knife (P5(J1) that was pointed out by CO2 in the drain by the side of Lorong Saujana 1 as 20 evidence admissible under s. 8 of the Evidence Act 1950 which showed that she had knowledge of and was connected with the commission of the offence. The place was about 50 meters from her house as can be seen in the evidence of SP5 who went there to collect evidence. 25 iii. DNA analysis [25] SP1 in his Chemist Report marked as P8 at page 3 stated: “Keputusan analisis DNA menunjukkan bahawa: "KH 8"; serta kesan darah pada putik kapas "KH 18" hingga "KH 21", gebar selesa "KH 27", baju "KH 28", seluar pendek "KH 30" dan kain "KH 40" yang berpadanan antara satu sama lain dan dengan profil DNA yang diperolehi daripada spesimen tulang "KH 1" (I have intentionally left out the name of the deceased). Ini menunjukkan bahawa, DNA yang dikenal pasti 35 tersebut berasal daripada individu yang sama. Kebarangkalian seorang individu lain yang dipilih secara rawak dan tidak terdapat kaitan kekeluargaan mempunyai profil DNA yang berpadanan dengan profil DNA sampel tersebut di lima belas lokus genetik ini adalah lebih kurang 1 dalam 4.1 quintillion (4.1 x 1018) yang dikira berdasarkan pangkalan data STR 5 penduduk Malaysia berketurunan Melayu, 1 dalam 29 quintillion (29 x 1018) yang dikira berdasarkan pangkalan data STR penduduk Malaysia berketurunan Cina dan 1 dalam 4.3 quintillion (4.3 x 1018) yang dikira berdasarkan pangkalan data STR penduduk Malaysia berketurunan India. 10 15 Kebarangkalian seorang individu lain yang dipilih secara rawak dan tidak terdapat kaitan kekeluargaan mempunyai profil DNA yang berpadanan dengan profil DNA sampel tersebut di lima belas lokus genetik ini adalah lebih kurang 1 dalam 5.1 quintillion (5.1 x 101) yang dikira berdasarkan pangkalan data STR penduduk Malaysia berketurunan Melayu, 1 dalam 29 20 quintillion (29 x 1018) yang dikira berdasarkan pangkalan data STR penduduk Malaysia berketurunan Cina dan 1 dalam 700 quadrillion (700 x 1019) yang dikira berdasarkan pangkalan data STR penduduk Malaysia berketurunan India. pada hulu pisau "KH 9"; kesan darah pada keratan kuku "KH 3" dan kain "KH 34"; serta kesan menunjukkan kehadiran darah pada pisau "KH 9", tali "KH 14", putik kapas "KH 25", seluar panjang "KH 29", beg "KH 31" dan kain "KH 41" yang tidak sesuai untuk perbandingan. pada pisau "KH 8"; tali "KH 15" dan "KH 17"; kad dan sampul "KH 16"; putik kapas "KH 22"; tuala "KH 26"; beg "KH 38" dan "KH 39"; kain "KH 32", "KH 33", "KH 35", "KH 36" dan "KH 37"; seluar pendek "KH 42"; seluar dalam "KH 43"; serta beg plastik "KH 44". Oleh itu, tiada perbandingan DNA dapat dibuat.” [26] For a full list of the 44 items SP1 received for analysis, refer to his witness statement and Chemist Report No. 19-FR-P-05904 dated 5 12.12.2019 (P8). Many of the exhibits SP1 received from SP14 had bloodstains on them as stated in P8. However, only the results in paragraphs 1 and 3 of P8 were of some significance as can be seen above. The Court noted that KH18 – KH21 were samples of bloodstains that SP5 had swabbed from one of the bedrooms on the 10 first floor and KH22 – KH25 were swabbings taken from the wall of a room on the groundfloor of CO2’s house. SP14 gave evidence that the swabs in KH18 – KH21 were taken from the room downstairs whereas swabs KH22 – KH25 were from the bedroom upstairs. Although his evidence contradicted that of SP5, I found that the 15 version by SP5 was the correct one and the markings were done as how he had collected the samples i.e. he started with the bedroom upstairs and then went to the room on the groundfloor. In the room downstairs, he had taken the swabbings of 4 bloodstains that he found on the wall of the room (refer to pages 114 and 119 of the 20 Notes of evidence) and this was supported by the photographs marked P13(13 – 20). [27] SP1 was able to identify a male DNA profile from the “kesan DNA surih” (trace DNA) of the hilt of the unbranded knife P5(I1) 25 and the bloodstains from the bedroom floor and mattress (P5(R2), P5(S2), P5(T2) and P5(U2)), the comforter (P6(A1)), orange T-shirt (P6(C1), black shorts with yellow line (P6(E1)) and a piece of cloth (P3(K1)). The shirt and shorts stated above were the items of clothing worn by the deceased when his body was discovered wrapped in the said comforter. The report P8 stated that the DNA profile on these items matched the deceased’s profile from his bone sample KH1 (extracted by SP11 during the postmortem). There was also the deceased’s DNA profile found on 5 the white cloth marked as P3(K1) ie from KH40. From the list of exhibits marked and bagged by SP14, this white cloth was one of the two white cloths with bloodstains that were found with the deceased’s body as can be seen in the postmortem report marked as P8. Although the report in paragraph 5 stated that there was 10 no DNA profile discovered from the bloodstain on the unbranded knife P5(I1), the Court found that the hilt of the same knife did have traces of the deceased’s blood on it as stated in the results in paragraph 1 of P8. Hence, there was no doubt at all that the said knife had been used in the attack on the deceased. 15 [28] The Court noted further that there were traces of blood on the other knife i.e. the Kiwi brand black-hilted knife marked as P5(J1) but as stated in the results in paragraph 4 of P8, the DNA profile was inconclusive. The bloodstained cloths found beside the drain did not 20 have any DNA profile for comparison as stated in the result in paragraph 5 of P8. The 6 pieces of cloths were collected and bagged by SP5 who later identified them in Court and marked as P3(C1), P3(D1), P3(E1), P3(F1), P3(G1) and P3(H1). I did not find it a material error on the prosecution part when SP5 could not find 25 his markings on the bloodstained cloths themselves because the markings had disappeared or faded due to the passage of time. It was also in his evidence that it was raining when he was there at the crime scene to gather and bag the cloths and other exhibits found such as the knife P5(I1) and 3 bags containing the said cloths. At page 206 of the Notes of Evidence, SP5 stated during re-examination: : Kain-kain yang dirampas dari longkang tiada analisa untuk kenal pasti 5 cap jari? : Kami tidak buat sebab masa itu hujan, basah. Saya cadangkan kepada IO untuk hantar ke Jabatan Kimia. ... 10 : Inspektor kata ada rampas kain-kain dalam keterangan diberikan, ada rampas kain-kain ada kesan darah, di manakah rampasan kain-kain itu dibuat? : Kain-kain yang ada kesan darah dirampas di dalam longkang. 15 : Inspektor juga ada kata buat tandaan pada kain-kain yang telah dirampas tapi peguam kata keterangan lepas tidak nampak, ada yang tidak jelas dan tiada tandaan. Boleh Inspektor jelaskan bagaimana tandaan-tandaan ini dibuat pada kain-kain di dalam itu? : Saya buat tandaan pada kain pada kain-kain dengan menggunakan pen 20 maker dan untuk makluman Yang Arif masa itu barang eksibit basah. : Barang eksibit? Maksudnya? : Eksibit kain. Masa itu masih hujan lagi. Masa itu saya tanda dan lihat dia kembang macam disappear. 25 [29] SP5 told the Court further at page 213 of the Notes of Evidence that he did not dust the exhibits for fingerprints: : Seterusnya tidak ada finger print dusting dibuat samada pada plastik atau pun pada toto, boleh jelaskan ini? 30 : Tiada finger print dusting sebab plastik dalam keadaan berminyak dan basah. Sama juga kain dalam keadaan basah. Masa itu memang tengah hujan. : Kenapa Inspektor tidak rampas plastik dan juga toto yang membaluti 35 jasad? Jelaskan Inspektor kenapa? : Saya tidak rampas plastik dan toto yang balut jasad sebab selalunya bila kami buat pemeriksaan pada mayat apa barang-barang atau benda pada jasad contoh plastik, kain dan tali kami akan serah kepada IO dan hantar ke hospital untuk postmortem. Takut kami menggangu DNA pada jasad. [30] SP1 had processed the cloths at the lab by making small cuts on them to obtain samples of the bloodstains for analysis. SP1 told the 5 Court that the outcome of the DNA analysis depended on the quantity as well as quality of the specimens obtained. They were found outside in the elements (weather and temperature) and therefore, there was no doubt that the quality had degraded as what he testified. He said use of clorox may also degrade the specimen. 10 [31] The Court found that SP1 was able to identify a female DNA profile from the bloodstains swabbings taken by SP5 marked as KH23 and KH24 (P5(W2) and P5(X2) respectively) from the wall of the room on the groundfloor of the said house. The DNA profile on these 2 15 exhibits matched that of CO2. The 2 swabbings were taken from the bloodstains on the wall at No. 6 in photograph P13(18) and at No. 7 in photograph P13(19). I found that this evidence pointed to the fact that CO2 was present at the crime scene during the material time. Although the evidence of the prosecution witness under cross- 20 examination was that CO2 did not appear to be injured when she was arrested to assist in the investigation, it must be borne in mind that CO2 was only detained 2 days after the murder of her brother. Many things could have happened within the span of 2 days. It was in SP5’s evidence in cross-examination that the floor of the room on 25 the groundfloor where the murder was suspected to have been committed appeared to have been cleaned up. The relevant excerpts of his evidence in cross-examination are as follows (from page 202 onwards of the Notes of Evidence): : Dari pengalaman kamu di bahagian forensik dalam keadaan leher dikerat semestinya ada banyak darah? : Betul. : Tapi dalam kes ini tidak banyak darah dalam bilik bawah? 5 : Betul. : Maka boleh saya sahkan bahawa kedua-dua bilik ini tidak memberikan sebarang gambaran yang boleh kita mengesahkan sebagai tempat kejadian pembunuhan tersebut? Maksudnya disebabkan patutnya 10 banyak darah, kedua-dua bilik ini tidak banyak darah, kita tidak pasti samada bilik-bilik ini merupakan tempat kejadian pembunuhan? : Dalam bilik ini terdapat banyak kain. Saya difahamkan bahawa bapa kepada mangsa buat catering servis. Jadi bilik ini digunakan untuk simpan kain-kain beg catering servis. Masa saya sampai di bilik bawah 15 banyak kain. Tiles nampak kemungkinan darah yang di bawah telah kena pada kain dan kain telah dibuang. Saya tidak setuju dengan soalan. : Setuju kamu guna “kemungkinan” bermaksud kita tidak pasti sebab 20 tiada sebarang bukti? : Saya hanya collect barang kes. Setuju. : Setuju kalau kain meresap darah masih boleh terlihat atas lantai oleh pihak forensik? 25 : Kemungkinan bergantung kepada jumlah darah yang keluar. : Setuju kain di atas lantai itu meresap darah, darah akan tembus kain dan terkena lantai? : Betul. 30 : Jika kena pada lantai semestinya pihak forensik akan mengesan darah pada lantai? : Yang itu saya tidak periksa. Saya tidak tengok dengan mata kasar saya. 35 : Adakah siasatan kamu tidak lengkap? : Tidak setuju, saya ambil barang yang saya nampak pada mata kasar. : Kalau ada darah di atas lantai, semestinya dapat dilihat diantara celah-celah tiles? 40 : Setuju. : Dalam kes ini kamu tidak lihat darah pada celah tiles? : Betul. : Kita tidak dapat kenalpasti di manakah pembunuhan tersebut telah dilakukan? : Ini bergantung kepada IO brief saya. Tidak setuju. : Bagi seorang yang dikerat lehernya jumlah darah ini terlalu kecil, tidak 5 menggambarkan dia dikerat di tingkat atas? : Setuju. : Bagi tingkat bawah kamu setuju tidak dapat kesan darah di lantai. Bagi seorang yang telah dikerat lehernya jumlah darah ini terlalu kecil. Ini 10 tidak menggambarkan dia dikerat di tingkat bawah? : Tidak setuju. … 15 : Kerana? : Masa kejadian ikut IO ada banyak kain dalam bilik. IO kata bilik bawah adalah tempat kejadian. Jadi saya proses bilik. Kain ada dalam longkang. Ikut IO, lantai telah dilap dan kain dibuang di longkang. Kain telah telah dirampas. Dalam bilik memang ada kain tapi yang dibuang 20 ada di dalam longkang. : Rujuk 16, banyak kain putih? : 25 : Ada darah? : Tiada. : Yang kamu cerita adalah cerita IO kepada kamu? : Betul. 30 : Kamu CSI yang proses tempat kejadian patutnya kamu tahu? : Betul. : Disebabkan lantai tidak beri petunjuk tentang kesan darah, Peguam dan 35 Mahkamah tidak dapat katakan dengan pastinya bilik itu adalah tempat kejadian? : Saya keliru dengan soalan. : Oleh sebab tiada darah di atas lantai, kita tidak pasti ini adalah tempat 40 kejadian pembunuhan? : Tidak setuju. : Saya cadangkan bahawa daripada keterangan yang kamu kemukakan, kita tidak dapat dengan pastinya mengatakan di manakah tempat kejadian pembunuhan dilakukan? : Tidak setuju. 5 [32] The Court did ask SP5 about his view as to how the bloodstains landed on the wall of the room on the groundfloor of the house (refer to page 214). It was noted that the bloodstains in photographs P13(17 & 18) had been wiped off. He stated: 10 “Mahkamah Kesan darah di dinding pada 17,18,19 dan 20, sila jelaskan. 17 di paras pinggang, 18 di paras bahu, 19 di paras lutut dan 20 di paras perut saya. Ketinggian saya 172cm. Gambar 16 dinding di sebelah 15 kanan ialah di mana kesan darah. Mahkamah Saya nak tanya, Inspektor dah lama jadi IO, dah 3 tahun jadi Pegawai Forensik. Lupakan yang IO cakap, berdasarkan kesan darah di dinding masa kejadian 20 itu, mangsa posisi dia macam mana, kamu rasa. Ini opinion, kedudukan ke, sebab kamu tengok darah dekat dinding. Boleh bagi saya gambaran tak? Pada pandangan saya pada masa itu mungkin simati dan suspek bergelut dan ditolak ke dinding dan selepas itu dia dikelar. 25 Mahkamah Ok itu sahaja. Terima kasih. Ada soalan lagi? Peguambela Tertuduh 2 30 Mohon tanya soalan berdasarkan kepada soalan Yang Arif. Pemeriksaan Balas Lanjutan oleh Peguambela Tertuduh 2 Semasa siasatan dibuat D10 tiada sebarang ukuran dibuat berkenaan paras darah? 35 Betul. Kamu kata kemungkinan mereka bergelut, satu kebarangkalian apa yang IO kata dan satu apa yang kamu jangka. Berdasarkan keadaan kesan darah adalah sukar untuk menggambarkan bagaimanakah 40 insiden tersebut berlaku? Betul. Masalah yang kita hadapi untuk beri gambaran bagaimana insiden berlaku ialah sebab jika kesan kelar dileher mesti darah ada percikan dengan banyak. Tapi dalam kes ini, sukar untuk kata bagaimana 5 percikan itu berlaku? Bergantung pada simati jatuh bagaimana. Tidak setuju. Pemeriksaan Balas Lanjutan oleh Peguambela Tertuduh 1 10 Ini kali pertama kamu bagi keterangan sebagai Pegawai Forensik? Betul. Forensik kali pertama. Gambar ini tadi Yang Arif ada rujuk, gambar 17,18,19 dan 20. Tadi ada 15 memberi keterangan mengenai ketinggian pada dinding itu, ini merupakan andaian kamu sahaja tanpa mengambil ketinggian itu, setuju? Setuju. 20 Pemeriksaan Semula Lanjutan TPR Soalan saya berkaitan andaian paras tompokan darah. 25 Mahkamah Dia pun cakap dia tidak sukat, saya tanya anggaran sahaja. Bagaimana boleh buat dapatan anggaran andaian ketinggian tompokan darah? 30 Kes itu saya masih ingat dan saya masih dapat bayangkan tempat kejadian itu. Saya beri jawapan berdasarkan ingatan saya.”. [33] There was nothing inherently incredible in SP5’s evidence above that the Court should not accept his evidence as a Forensic Department 35 officer with 3 years of experience there. Moreover, it was safe for me to conclude that some of the cloths used to wipe the tiles of the room floor had been discarded by the side of the drain at Lorong Saujana 1, although no DNA profile could be obtained from them upon SP1’s analysis. They were discovered there after CO2 was questioned by 40 SP13. The Court relied on evidence of her conduct and not s.27 of the Evidence Act. SP5 was briefed by SP14 before he carried out his task of processing the crime scene but this was not hearsay because SP14 also testified in Court as a witness. Although it was suggested to SP5 that the place was accessible by the public, and he agreed, it 5 remained as just a suggestion. The Court was told that the place was near a small hill and the police had cordoned it off to the public. In the photograph P15(3-4), the knife P5(I1) was seen by the side of the drain. But according to SP13, it was actually found inside the drain and could not really be seen from the roadside. Hence, upon a 10 maximum evaluation of all the evidence available, I concluded that the knife P5(I1) was a weapon used in the commission of the offence against the deceased although there was none of the child offenders’ DNA profile found on the knife. 15 iv. Pathologist’s evidence [34] I had touched on the pathologist’s evidence earlier only in regard to the second ingredient of the offence. I will now analyse the evidence in regard to the third and fourth ingredients of the offence. 20 [35] SP11 was asked by the DPP whether the injuries in paragraphs 15.3 and 15.4 of his witness statement (PSP11) were sufficient in the ordinary course of nature to cause death, and he answered in the affirmative. The witness agreed that the knives P5(I1) and P5(J1) could have caused injuries such as the ones he had listed in 25 paragraphs 15.3 and 15.4 as well as the lesser injuries in paragraphs 15.2, 15.5, 15.11, 15.12, 15.13, 15.14 and 15.15. He was cross-examined that his opinion on the length of weapon suspected to have been used to cause the injuries may not have been correct or accurate, but SP11 disagreed. He had conducted about 6,500 postmortems throughout his entire career and I could not find anything in SP11’s evidence in cross-examination that have destroyed his credibility (refer to pages 378 – 379 of the Notes of Evidence) on this particular issue. 5 [36] With respect, what was more important in SP11’s evidence was in respect of the dynamics of the attacker(s) and the deceased. The defence had tried to raise doubt on the prosecution case that the deceased was much bigger than both the child offenders, hence, it 10 was impossible that they could have murdered him. However, the Court accepted the pathologist’s opinion that the event was not an impossibility. The defence contended that the deceased was big in size but I found it was not true. The deceased’s body length was 169 cms and weight was merely 53.6 kgs. He appeared to be big in 15 size but only because the body had started to decompose (bloated) and parts of the skin had “marbled”. This can clearly be seen in the postmortem photographs (P14(1 - 40)) and also recorded in the postmortem report P22 at paragraph 14.2 of PSP11. The relevant excerpts of SO11’s evidence are reproduced below (page 380): 20 : Rujuk para 14.2, 15.1, 15.7, 15.8, 15.9, 15.17, 15.18, 15.19 dan 15.20. Lebam ini mungkin dari pergelutan? : Ya kemungkinan itu ada. 25 : Dan bila kita kata pergelutan dan juga boleh bermaksud pergaduhan, betul? : Ya, mungkin bermaksud pergaduhan juga. : Dan doktor telah mengesahkan bahawa mayat simati ini terdapat ikatan 30 dibahagian pergelangan tangan dan juga di bahagian buku lali, betul doktor? : : Kemungkinan simati telah dipukul yang menyebabkan kelebaman tersebut semasa beliau diikat, betul doktor? Doktor berpendapat sedemikian kerana? : Saya berpendapat ia tidak berlaku sedemikian. Kerana ikatan 5 dibuat selepas kematian. Saya berpendapat ikatan sukar dibuat jika seorang berlawan atau pergelutan, sukar untuk mengikat mangsa dalam keadaan yang dinamik. : Sukar tapi bukan mustahil? Mungkin sukar tapi tidak mustahil untuk 10 diikat di gelang tangan dan gelang kaki betul? : Ia mungkin tapi kebarangkaliannya tiada. Possibble but not probable. : Jika lima lelaki berbadan besar memegang simati, pergelangan kaki dan tangannya boleh diikat? 15 : Kemungkinan ada tetapi kebarangkalian itu tiada sebab sebelum ikatan dibuat di bahagian kakinya, sebelum dibuat terdapat comforter warna kelabu yang menyelubungi tubuh mayat. : Maka kemungkinannya tiada walau kebarangkaliannya tiada 20 disebabkan ikatan tersebut antara ikatan tersebut antara tangan dan kaki terdapat comforter? : Benar. Mahkamah 25 Maknanya dia tidak boleh melawan? : Samada dia tidak boleh melawan atau dia telah meninggal dunia. [37] Looking at the photograph P16(4) which was taken at CO1’s house, 30 I noted that at the material time he looked to be of “normal” teenager height, if not taller, as he stood next to a standard wooden dresser. And this also appeared to be the same for CO2 as I looked at photograph P15(11) where she stood next to a kitchen counter and cooking hob with standard hood. The issue was whether their (body) 35 sizes were big enough to be able to overpower the deceased at that time and carry out the attack on him. But as SP11 had explained, the attacker’s size did not matter. [38] SP11 was asked further (at page 383 of the Notes of Evidence): Maka doktor terdapat kemungkinan dan kebarangkalian bahawa mangsa ini sebenarnya telah diikat sebelum lebaman-lebaman tersebut wujud di atas badan mangsa tersebut. Dalam erti kata lain mangsa tersebut mungkin telah dipukul dan menyebabkan lebaman-lebaman 5 tersebut selepas beliau telah diikat, betul doktor? Saya tidak boleh mengatakan secara pasif dan saya berpendapat pukulan adalah untuk melemahkan atau mematikan mangsa terlebih dahulu sebelum ikatan dibuat. 10 Tapi terdapat kemungkinan ataupun sebahagian pukulan tersebut dikenakan ke atas mangsa dan beliau telah diikat dan sebahagian pukulan dikenakan ke atas mangsa selepas diikat, betul doktor? Kemungkinan itu ada. 15 Maka dalam erti kata lain terdapat kemungkinan bahawa mangsa tersebut sebenarnya telah diikat sebelum dipukul ataupun sebahagian pukulan telah diberikan kepada mangsa setelah beliau telah diikat? Kemungkinan itu ada. 20

Doktor, berdasarkan penyataan doktor di perenggan 15.1, 15.7, 15.8, 17 sehingga 15.21 juga terdapat kebarangkalian bahawa terdapat beberapa orang yang mungkin telah menyebabkan kelebaman tersebut di atas mangsa? Ya saya setuju kemungkinan terdapat beberapa orang. 25 [39] Then in re-examination, SP11 explained his answer: Merujuk P22 awak, kelebaman mayat ada di belakang badan dan di PSP 11 di para 15.1, 15.7. 15.8, 15.9, 15.16, 15.17, 15.18, 15.19 dan 15.20. Kematian simati dipukul selepas ia diikat, awak tidak setuju. Boleh 30 terangkan jawapan ini? Tanda-tanda kecederaan lebam pada tubuh badan adalah berlaku sebelum kematiannya dan untuk mengikat seseorang yang masih boleh mempertahankan dirinya adalah suatu yang tidak dapat dibayangkan pengecualian sekiranya simati telah mengalami incapacitation sehingga 35 membolehkan ikatan dibuat atau pun kemudian mangsa telah pun meninggal dunia. Dalam kes ini bagaimana? Saya berpendapat mangsa telah pun mengalami incapacitation tanpa 40 boleh mempertahankan diri atau pun telah meninggal dunia sebelum ikatan dibuat. Isu overpower terhadap mangsa, awak menjawab tidak setuju. Boleh jelaskan perkara itu? Persoalan tersebut merujuk kepada perseorangan lain yang tubuh badannya lebih besar daripada mangsa, saya tidak setuju kerana ianya bukan merujuk kepada tubuh pelaku tetapi peluang dan 5 ruang yang ada. Maksudnya, walaupun orang itu lebih kecil ia boleh mendatangkan kecederaan sepertimana yang dialami oleh simati selepas mangsa mengalami incapaciataion. Sebagai contohnya, orang yang kecil menendang kepada bahagian kelengkang saya akan melumpuhkan separa saya mangsa yang lebih besar dan 10 pada masa itu juga objek yang digunakan tajam, pipih dan meruncing boleh digunakan terhadap mangsa. Berapakah kebarangkalian jumlah pelaku yang boleh menyebabkan kecederaan kepada simati sebagaimana kecederaan 15 yang kita dapati sehingga menyebabkan kematian simati? Seorang atau lebih boleh menyebabkan kecederaan dan seterusnya kematian terhadap simati. Nyatakan perbezaan kecederaan akibat pukulan sebelum dan selepas 20 simati diikat? Tidak, saya tidak boleh tentukan pukulan dibuat sebelum diikat atau selepas diikat. [40] The Court accepted SP11’s explanation as highlighted above that 25 as long as there was opportunity, the size of the attacker(s) in relation to the deceased did not matter so much. Additionally, there were defensive wounds found on the deceased’s hands, therefore, it was unlikely that the deceased did not fight back when he was attacked. SP11 was of the view that the deceased would have 30 fought back to save his own life and it would have been difficult to tie him up while he was still alive. There was a plastic jar containing some chilli powder which the police suspected had been used to incapacitate the deceased; otherwise why would SP13 have seized such an item from the house? This was as a result of CO2’s conduct 35 in pointing the police towards the items used in the commission of the crime. It was not for the Court to say for sure that the chilli powder was used on the deceased because there was no analysis done to confirm this; I suspected it was not done because the body had started decomposing. Also, from the photographs P13(6) and P13( 8), it appeared that the deceased’s hands were tied at the back. In my opinion, tying someone’s hands at the back is an 5 effective measure to ensure he would not be able to defend himself from the attacker(s). This is an important fact which went towards proving that the crime was pre-meditated and preparations had been made to incapacitate the deceased by the perpetrators. 10 [41] The charge was that both children had committed the act of murdering the deceased in furthering their common intention under s.34 of the Penal Code. This was where the prosecution had to rely on circumstantial evidence to prove this ingredient of the offence. I found that the acts of the child offenders had enabled an object such 15 as P5(I1) to cause injury No. 3 that was sufficient in the ordinary course of nature to cause death. The weapon was sharp, flat and tapered (tajam, pipih dan meruncing) and was used against the neck of the deceased. It is common knowledge that the neck area on a human is one of the most fatal parts of the body to be attacked. It is 20 where the major arteries are located. SP11 had explained in re-examination that: Sila jelaskan tikaman di leher kenapa tidak keluarkan darah yang banyak? 25 Luka yang dialaminya sekiranya ia kena pada salur darah utama yang menyebabkan pendarahan yang banyak berlaku dalam tempoh masa yang singkat tetapi dalam kes ini tiada salur darah utama yang tercedera dan kehilangan darah berlaku untuk satu tempoh yang lebih lama. Kehilangan darah ini bukan sahaja keluar daripada tubuh badan tetapi 30 juga telah masuk ke dalam paru-paru dan perutnya iaitu luka yang di trakea iaitu salur pernafasan. Mahkamah This was a slow death? Ya, selepas satu tempoh. 5 Jawapan awak sebelum ini pacutan darah akan berlaku jika ia menyebabkan pemotongan arteri. Apa perbezaan salur darah utama dengan arteri? Salur utama ialah carotid artery. 10 [42] It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, those 15 circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. That is to say 20 the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused’s guilt: Magendran Mohan (supra). Well, this case did not rest entirely on circumstantial evidence. Despite the challenge to SP11 that such injuries to the deceased could not have been done by 2 children, SP11 stood by 25 his answer that it was not an impossibility if the deceased had been restrained by the perpetrators and incapacitated to an extent such that he would not have been able to fight back. The Court accepted SP11’s evidence because his opinion was relevant to determine how the murder may have most likely been committed upon the 30 deceased. At the prosecution stage, there was only the evidence of SP11 in regard to the cause of death. His expert evidence showed there was no other intervening factor(s) that had caused the deceased’s death other than that the injuries suffered were caused by the acts of both child offenders. SP11 gave expert evidence under s. 45 of the Evidence Act 1950 on the multiple injuries sustained by the deceased, the cause of death and how the injuries could have been sustained by him. The defence had not rebutted 5 SP11’s evidence at that stage and that could only be done through the evidence of another expert witness. [43] The Court found there were pre-meditated acts and preparations had been made by the perpetrators to attack the deceased and 10 incapacitate him before striking him with the fatal blow. It was submitted for the defence that they, particularly the girl child offender (CO2), was small-built and could not have the capability or might to attack and kill the deceased. However, from the pathologist’s explanation, he said even an adult like himself could be 15 incapacitated for example, if he was kicked in the groin by the attacker. The attacker(s) would have incapacitated him such that he would not be able to defend himself in the subsequent attack. The Court opined that the chilli powder seized could have been used to temporarily blind the deceased. But as I stated earlier from the 20 condition of the body when it was found, it was decomposing and bodily fluids had oozed out from the body according to the pathologist. I deduced that no specimen from the bulging eyes of the deceased had been taken to confirm that possibility. The deceased’s body was also tightly bound by the yellow raffia strings, 25 the pathologist could not confirm whether the deceased was bound before or after his death. However, he told the Court that a person being attacked would most likely try to ward off the blows. He believed that the condition of the body suggested it could have been bound after death. [44] The body was disposed of “unprofessionally” just by leaving it at the backdoor of the neighbour’s unoccupied house. The cloths used to 5 wipe away the bloodstains and a knife were thrown away at a drain near the house. There was an attempt to wipe off some of the bloodstains on the wall of the groundfloor room. It was not fresh blood but the murder was allegedly committed 2 days before the deceased’s body was discovered. The fact that the deceased had 10 died from the attack(s) and the evidence of the items used in the commission of the offence “preserved” for the whole world to see, therefore, the Court concluded that the evidence pointed squarely to the fact that the child offenders had intended to cause the maximum damage to the deceased by their acts from the parts of 15 the deceased’s body that they attacked and from the multiple injuries found on his body. They wanted him to die. They may not know which blow exactly on the neck that would cause his death but there were 4 injuries (paragraphs 15.2 until 15.5 in PSP11) that were targeted at the neck area alone. In paragraph 20 15.5 there were actually more that one injury noted with various lengths from 3 cms to 9.5 cms. This was murder and definitely not an offence suitable to be charged under s.304(a) or (b) of the Penal Code. 25 [45] On another matter, from the photographs in P13(6), P13(8) and P13(10), it could be seen that the raffia strings were on the deceased’s skin and the body was wrapped in the grey comforter (P6(A1) and lastly, the outer layer was the big clear plastic bag. Although this bag was not tendered as evidence, I did not find it to be fatal to the prosecution case because the photographs showed that it existed at the material time. In fact, the postmortem report had listed it and it was again stated in P21 i.e. Borang Penyerahan Spesimen signed by SP11 himself. The plastic bag could also be 5 seen in the said photographs. I have no doubt at all the big plastic bag containing the body of the deceased was used to drag his body out from the room on the groundfloor and then to the backyard of the next door neighbour’s house that was unoccupied. It was not a big distance to cover because these 10 were standard terrace houses as can be seen from the photographs tendered by the prosecution. [46] On the issue of SP11’s decision that a toxicology analysis need not be done upon the deceased’s bodily fluids, the Court accepted his 15 explanation that it was unnecessary because the deceased’s remains had started to decompose. His explanation was as follows: Kamu tak setuju dengan cadangan saya bahawa ujian toxicology terhadap darah simati itu adalah penting? Dalam kes tidak penting. 20 Kenapa awak kata begitu? Memandangkan mayat telah membusuk spesimen darah tidak dapat diperolehi daripada tubuh badannya ditambah juga dengan banyak darah telah keluar akibat daripada kecedearaan yang dialaminya. 25 Sekiranya yang dikatakan darah itu bukan sebenarnya darah tetapi lebih kepada cecair badan. v. Identity of the crime perpetrators [47] The were also other evidence from the prosecution witnesses that 30 the Court could rely on in making a finding of fact that it was both child offenders who had caused the fatal injuries to the deceased, i.e. the third ingredient of the offence. The relevant prosecution witnesses in this regard were SP8, SP9 and SP10. The important facts in their evidence have been gathered below. [48] I will start with the analysis of SP8’s evidence. SP8 was said to be 5 CO1’s girlfriend in the year 2019 and she was 15 years old during the material time. She was also close friends with CO2 prior to the tragedy of the deceased’s death. SP8 gave evidence under oath after the then learned Judicial Commissioner was satisfied that she understood the duty to tell the truth and nature of an oath. By the 10 time she gave evidence in Court in 2021, she was already 17 years old. At first she testified in Tamil language and later gave evidence in the national language after she re-took the oath in Bahasa Malaysia. SP8 had been schooling at SMK Convent from Form 1 until Form 3 and then continued her schooling at SMK Taman 15 Panglima thereafter. Then CO2 also went to the same school. CO2 was a year younger than SP8. She said CO2 was her “adik angkat”. [49] During the material time, SP8 was also friends with SP9 and SP10 whom were close friends of CO1 and they all had a dedicated WhatsApp group for them. On 4.7.2019, SP8 received a telephone 20 call from CO2 asking her to meet the next day at the latter’s house in Taman Gleenview. Friday 5.7.2019 was a school day but SP8 chose to skip school to meet up with CO2 at Taman Gleenview. So on the morning of the 5th, SP8 went out at 7.00 am on her bicycle as if she was going to school but waited somewhere until the school 25 gate closed at 7.20 am. Then she returned home as she could only go to CO2’s house after 9.00 am when the latter’s father left for work. At 9.00 am she went out on her bicycle to Taiping Sentral Mall and left it there. Then she took a Grab ride to CO2’s house. [50] At CO2’s house, SP8 played with the house pet and her phone while chatting with CO2. Then CO1 and his 2 friends arrived at the house upon CO2’s invitation. CO1 and SP9 played games on their 5 telephones at the lounge while CO2 chatted with SP10, until suddenly the deceased (whose nickname was SM) came home around 12.15 pm. CO2 told them to leave the house through the back door upon seeing her brother’s motorcycle entering the gate. SP8 waited at a TNB substation because according to her if SM saw 10 her at his house, he would complain to her parents and she would be getting an earful from them. She said CO1, SP9 and SP10 ran off in the opposite direction but she did not know where they went. SP8 booked a Grab ride while waiting there and it arrived a few minutes later. 15 [51] Suddenly while still at the TNB substation, CO1 called her on his telephone and and told her that he had spoken to SM via telephone. CO1 said to SP8 “Saya rasa nak bunuh SM kerana dia kacau kita banyak”. I have substituted SM for the deceased’s name that CO1 mentioned to SP8. Just then her Grab ride arrived and she ended 20 the call. She wanted to go home as her younger sister would be coming back from nursery at 12.30 pm but she would have to stop at Taiping Sentral to collect her bicycle. She arrived home at 12.30 pm just before her little sister came back. SP8 had lunch and afterwards went to bed for a nap. 25 [52] At 1.45 pm, CO1 again called her and said he was already in front of CO2’s house. When SP8 asked him why, he replied “sekarang kamu akan tahu siapa saya”. She was shocked because CO1 was in front of CO2’s house for no reason and she did not know why he was there. Therefore, she went back to nap at 2.00 pm and soome time around 3.40 or 4.00 pm she woke up and received a Whatsapp voice message from CO2 stating “...., tambi sudah bunuh abang 5 saya” in Tamil. For ease of reference, I have reproduced the disputed evidence by SP8 below (at page 177 of the Notes of Evidence) but with the names of the parties and deceased edited for privacy (according to my reference herein) as follows: : Apa berlaku seterusnya? 10 J : Lepas itu, saya rasa terkejut. Lepas itu, saya tak tahu nak percaya atau tak nak percaya. Saya tak tahu. Sebab itu saya buat video call untuk CO2 tetapi dia tak ambil video call. Lepas itu, saya mesej untuk CO2 suruh buat video call sebab saya dah rasa takut. Saya bagi tahu untuk buat video call. Lepas lebih kurang 2 15 minit, CO2 buat video call. Saya nampak yang Simati itu terbaring dalam katil dan pakai baju oren, seluar warna hitam. CO1 duduk atas Simati. Baju CO1 semua ada kesan darah. Leher Simati itu telah digulung dengan kain warna putih dan ada kesan darah. Simati itu terbaring macam ini. Saya nampak kepala Simati dan 20 sebahagian badan Simati sahaja dan muka CO1. Di situ ada meja solek dan ada satu box yang penutupnya berwarna merah atau pink lebih kurang macam itu dan ada dalam itu ada serbuk warna merah. 25 [Note: CO1 = 1st Child Offender, CO2= 2nd Child Offender, Simati = Deceased] [53] At this point of her testimony, naturally CO1’s counsel objected to this evidence as hearsay and the learned Judicial Commissioner (as His Lordship then was) ruled that SP8 may continue with the 30 evidence but it must be confirmed with the video call, as otherwise it would be hearsay. There was also an objection that the prosecution had not proved it was CO1’s voice that she heard on that day. His Lordship agreed with the defence that what was seen and what was heard were two different things altogether. When I took over the conduct of the trial after the transfer of the learned Judicial Commissioner, there was an application via letter to the then Chief Judge of Malaya by the counsels for the previous Judicial Commissioner to continue the trial until the end. However, this 5 application was not allowed. [54] Upon perusing the Notes of Evidence then, I had a different view in regard to the issues above; this will be elaborated further below. Obviously the counsels for the child offenders were unhappy with my ruling to allow SP8’s evidence about what she had seen in the 10 video call and I will explain on this later. SP8 did not finish her evidence before the learned Judicial Commissioner. Hence, SP8 continued her evidence before me at the stage of cross-examination. I will continue with SP8’s evidence (given before the learned Judicial Commissoner) as follows (page 181 onwards): 15 Mahkamah Kalau ada bukti lain akan diberikan kemudian. Itu adalah bantahan yang dikemukaan oleh Peguam setakat ini mengenai keterangan saksi ini. Kamu kata tadi kamu terima video call? 20 Macam mana itu? Boleh terangkan sedikit? Dalam video call itu, Simati itu terbaring di atas katil. 25 Macam mana kamu boleh nampak? Sebab dalam video call itu saya boleh tengok apa yang dalam video call itu. Apa yang kamu tengok? 30 Simati itu berbaring di atas katil. CO1 duduk di atas Simati. Leher Simati itu digulung dengan kain warna putih yang ada kesan darah. Baju CO1 pun ada kesan darah. Kamu nampak? Saya nampak Simati itu terbaring di atas katil. Apa berlaku seterusnya? Apa perasaan kamu? Selepas tengok video call itu saya rasa terkejut dan rasa macam takut. 5 Rasa bergetar masa itu. Selepas itu, saya tanya 2 orang itu “apa kamu buat” macam itu saya tanya seperti terkejut. Apa yang kamu buat. Lepas itu, CO1 kata “kalau you tinggalkan saya, kamu akan menerima nasib yang sama”. Dia beritahu macam itu. 10 Peguambela Tertuduh 1 Yang Arif can this evidence can be recorded? Mahkamah We satisfy what she saw and what she heard. That’s a law under Section 60. 15 The prosecution must prove further. Apa berlaku seterusnya? Selepas itu, saya tanya CO1 dengan CO2 “apa kamu buat”. Macam perasaan terkejut. Lepas itu, CO1 bagi tahu “kalau kamu tinggalkan 20 saya, kamu akan menerima nasib yang sama”. Saya rasa takut sangat. Selepas dia beritahu macam itu, CO1 ada pegang pisau dan buat macam ini (aksi menikam). Bila saya tengok dia buat macam ini, saya rasa owh macam itu. Dia bubuh macam ini 2 kali di leher Simati dalam video call itu. 25 Kamu ada nampak? Ya, nampak. Lepas itu, apa yang berlaku? 30 Bila dia buat macam ini, saya rasa takut. Tak nak tengok macam itu. Dia bubuh macam ini, lepas itu saya rasa takut sangat. CO2 pun sudah putuskan video call itu. Apakah yang kamu lakukan selepas itu? 35 Sebelum CO1 buat macam ini, saya berasa takut buat macam ini. CO1 buat 2 kali macam ini, cucuk di belakang Simati saya rasa takut. Lepas itu, saya bagi tahu CO2 suruh check nadi Simati. CO2 pun check nadi Simati dan bagi tahu tidak ada nadi. 40 Bagaimana CO2 check nadi? Dia ambil tangan Simati dan pegang di tangan nadi. Adakah pada masa itu kamu masih dalam video call? Ada. Ada kamu nampak perbuatan CO2 periksa nadi? Ada. 5 Apa berlaku seterusnya? J : Selepas CO2 beritahu tidak ada nadi, saya menangis dan rasa tak tahu apa nak buat. Saya sudah panic. Saya menangis. CO2 pun sudah letak telefon video call itu. 10 Mahkamah Letak telefon? Video call itu sudah off. 15 Selepas itu, apa yang berlaku? Saya cuba call balik. CO2 tak ambil telefon saya. Call CO1 pun dia tak ambil telefon. Saya pun rasa takut dan menangis. Saya pun tutup saya punya telefon sebab tak tahu nak buat apa. Rasa panik. 20 Berapa lama kamu switch off telefon kamu? Saya off telefon selepas video call dan sampai hari Sabtu sehingga 11.00 pagi. Pukul 11.00 pagi, saya buka telefon saya balik.

11.00 pagi bila? 25 6 haribulan 7. Lepas itu, apa yang berlaku? Lepas itu, lebih kurang 11.00 pagi, saya buka phone saya. 30

11.00 pagi bila? 6 haribulan 7. Apa berlaku? Saya dapat 2 mesej daripada whatsapp group kawan kami. Yang 5 35 orang ini. Whatsapp group apa? Whatsapp group bestfriends forever. 40 Siapa dalam group whatsapp itu? CO2, CO1, SP10, SP9 dan saya. [55] Now, I believed that the 2 pieces of white cloths that SP11 removed from the body just before he conducted the postmortem on the deceased were the same cloths that SP8 saw around the deceased’s neck when she was on the video call with CO2. During the video call, CO1 was sitting on the body of the deceased and had 5 shown SP8 a knife which he had made a stabbing-like action twice at the deceased’s neck and he threatened that she would receive the same fate if she left him. This caused such fear to SP8 that she panicked and cried. She told CO2 to check his pulse, which CO2 did. CO2 then told her there was no pulse. Then CO2 ended the 10 video call. [56] SP8 also told the Court that she had thrown away her mobile telephone marked as P4(C1) and before that she had deleted all the messages from the WhatsApp group. I refer to page 188 of the Notes of Evidence: 15 Pihak polis ada tanya kamu tentang perkara whatsapp ini? Polis ada tanya. Ada bagi tahu kepada pihak polis? Ada. 20 Ada tunjukkan whatsapp kepada pihak polis? Tak ada sebab sebelum saya buang telefon saya itu, saya sudah delete semua dalam phone itu. 25 Kamu delete apa? Saya sudah delete. Kamu delete apa? Saya sudah delete semua dalam phone itu. 30 Delete apa? Delete whatsapp message semua. Dalam contact saya semua. Tadi kamu kata kamu telah buang telefon kamu. Kenapa buang? Sebab saya rasa dah takut sangat. Saya rasa takut sebab saya pun akan kena apa-apa. Saya tak buat apa-apa. So, saya rasa takut sebab tak tahu nak beritahu kepada siapa. Saya rasa takut tak tahu nak buat apa. 5 Kamu buang telefon kamu di mana? Di perkumbuhan dalam taman saya. Bila polis rampas telefon kamu? Lebih kurang 8 haribulan atau 9 haribulan. 10 Bulan apa? Bulan 7. Bagaimana polis dapat menjumpai handphone kamu? 15 Saya yang bagi tahu bahawa saya yang buang telefon dekat situ. [57] She also told the Court that when she was at the police station on 8.7.2019, CO2 had threatened her, “Jangan bagi tahu apa-apa. Nanti you kena nasib yang sama.” Therefore, she did not at first tell the police about what she had seen in the video call on that 20 afternoon of 5.7.2019. She told the police the truth only after she was detained the second time. [58] The prosecution claimed that there was direct evidence in the form of SP8’s testimony when the video call was made to her by the second offender, in which the deceased could be seen lying 25 motionless on the floor. The Court agreed with the submissions of the learned DPP on this issue and opined that the prosecution also had to rely on circumstantial evidence to prove its case. 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 30 conclusion of the guilt of the accused. If there are gaps in it, then it is not sufficient: Chang Kim Siong v. PP [1968] 1 MLJ 36 (FC). [59] On the issue of the video call which I had admitted as evidence, despite the ruling by the previous Judicial Commissioner, I agreed with the DPP’s submissions that it fell under ss.59 and 60 of the Evidence Act 1950. All facts, except the contents of documents, may be proved by oral evidence: s.59. And all oral evidence must be 5 direct. The law provides that:

if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; … [60] I refer to the case of PP v Jowy Manjoro [2004] CLJU 724 (HC) which discussed evidence obtained by the use of recording 15 technology. The learned High Court Judge referred to an English case in the following paragraph for the principle as follows: “Reference must also be made to TAYLOR v. CHIEF CONSTALBE OF CHESHIRE [1987] 1 AER 225. In that case the appellant was charged with theft of a packet of batteries from a shop. The prosecution evidence rested 20 partly on what three police officers had seen in a video recording which allegedly showed the appellant committing the offence. The video recording was mistakenly erased before the trial and was therefore not available to be viewed by the justices, who nevertheless regarded the officers' evidence of what they had seen on the video recording as admissible and convicted the 25 appellant. The appellant appealed, contending that the officers' evidence should have been excluded as hearsay. The appeal was dismissed. In his judgment Ralph Gibson LJ. Said at page 230: "As to the submission for the prosecutor, counsel submitted that once it is proved that a video recording was a recording of what a machine 30 detected and reproduced at the time and place in question, evidence of witnesses of what they say they saw on the recording is not different in law in point of principle from evidence of witnesses who claim to have seen the events by direct vision. She contended that all the arguments advanced on behalf of this appellant are in truth arguments properly 35 directed at weight and not at admissibility. I think she adds that they were present to the mind of the justices, and that they were fully taken into account. She has referred the court to no further authority. In substance I accept the contention made for the prosecutor. For my part I can see no effective distinction so far as concerns admissibility between a direct view of the action of an alleged shoplifter by a security officer and a 5 view of those activities by the officer on the video display unit of a camera, or a view of these activities on a recording of what the camera recorded. He who saw may describe what he saw because, as Ackner LJ said in R v. Kajala, to which I have referred, it is relevant evidence provided that that which is seen on the camera or recording is connected by sufficient evidence 10 to the alleged actions of the accused at the time and place in question. As with the witness who saw directly, so with him who viewed a display or recording, the weight and reliability of his evidence will depend on assessment of all relevant considerations, including the clarity of the recording, its length and, where identification is in issue, the witness's 15 prior knowledge of the person said to be identified, in accordance with well-established principles. Where there is a recording, a witness has the opportunity to study again and again what may be a fleeting glimpse of a short incident, and that study may affect greatly both his ability to describe what he saw and his confidence in 20 an identification. When the film or recording is shown to the court, his evidence and the validity of his increased confidence, if he has any, can be assessed in the light of what the court itself can see. When the film or recording is not available, or is not produced, the court will, and in my view must, hesitate and consider very carefully indeed before finding 25 themselves made sure of guilt on such evidence. But if they are made sure of guilt by such evidence, having correctly directed themselves with reference to it, there is no reason in law why they should not convict. Such evidence is not, in my view, inadmissible because of the hearsay principle. It is direct evidence of what was seen to be 30 happening in a particular place at a particular time and, like all direct evidence, may vary greatly in its weight, credibility and reliability." [Emphasis added] [61] In another High Court case of PP v Mohd Azmi Bin Ibrahim & 35 Satu Lagi [2012] CLJU 1284, the court also referred to the same English case (supra) where it was held: “Held - There was no effective distinction, for the purpose of admissibility, between a direct view of the actions of an alleged offender by a witness and a view of those actions on a visual display unit of a camera or on a video recording of what the camera recorded, provided that what was seen on the visual display unit or video recording was connected by sufficient evidence to the alleged actions of the accused at the time and place in question. Evidence as to the contents of a film or video recording was not inadmissible 5 because of the hearsay principle, but was direct evidence of what was seen to be happening in a particular place at a particular time. The fact that the video recording was not available at the trial did not of itself render the evidence of the police officers inadmissible, although the court had carefully to assess the weight and reliability of that evidence. Since the evidence of 10 the police officers had been rightly admitted and since the justices had correctly directed themselves as to its weight and reliability, the appeal would be dismissed (see p 227 e f, p 228 h, p 230 b to g, p 231 e and p 232 a e to g, post).” 15 [62] It is necessary for this Court to delve further into Taylor’s Case (supra) to understand the context in which the principle was based and how it is to be applied to the present case. The relevant parts of the judgment are as follows: “The submissions made by counsel for the appellant have been in summary as 20 follows. Without production of the original recording, or of a proven copy, no evidence, he said, could be given of what any witness says he saw on the recording. Where evidence is given by production of a recording for viewing by the court, a witness, it was conceded, may give evidence to supplement it by giving evidence of identification, but such evidence of identification is 25 inadmissible if the recording is not produced and viewed by the court. Finally, it was submitted that, even if there is no demonstrably applicable principle of law by reference to which evidence of what is seen on a recording can be treated as inadmissible if the recording is not produced, this court should nevertheless as a matter of policy pronounce such a principle because, if the recording is not 30 produced, there is no possibility of the court assessing what counsel referred to as the only real evidence, which was the recording itself. I for my part am unable to accept those submissions. In my judgment the evidence tendered was not inadmissible in law, whether by reference to 35 the hearsay rule or any other principle in law. I would start with R v Kajala (1982) 75 Cr App R 149. The nature of that case was that there had been a public disturbance in Southall. Parts of what occurred were filmed by BBC cameras. A prosecution witness saw the BBC broadcast and recognised the appellant as one taking part in the disturbance. That witness gave 40 evidence of what he saw on the recording and said that he confidently recognised the appellant. There was evidence to prove that the film depicted some of the events of the disturbance at the time and place at which it had occurred. In that case a copy of the original recording which had been seen by the witness was shown to the court. Because what was tendered was not the 5 original, objection was taken to it, and to evidence given by reference to it. In rejection the submission that the evidence was inadmissible, Ackner LJ, giving the judgment of the court, said (at 152): 'The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to 10 be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available on one's hands, one must produce it; that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The 15 goodness or badness of it goes only to weight, and not to admissibility. Garton v. Hunter ([1969] 1 All ER 451, [1969] 2 QB 37), per Lord Denning. See also Archbold, Criminal Pleading, Evidence and Practice ((40th edn, 1979) para 1001).' 20 [Emphasis added] [63] His Lordship Ralph Gibson LJ continued at page 227: “That is sufficient to dispose of the point raised in the case. I would answer the question by saying that the evidence was admissible, and the justices were right so to treat it. 25 It is necessary to mention some other aspects of this case. The objection to the admission of the evidence included, as I have already read out, reference to a contention that the witnesses, if called, would say that the appellant had committed an offence, whereas it was contended that it should be the court, 30 after viewing the video recording, who should determine whether or not an offence had been committed. There can be no doubt that a witness cannot be called to give his view, on what he has seen in a recording, or indeed on what he saw direct, that in his opinion an offence of any sort has been committed. All he can do is to describe what he saw, and matters of 35 inference from the primary facts are for the court. [Emphasis added] [64] At page 230, His Lordship stated: 40 “As to the submission for the prosecutor, counsel submitted that once it is proved that a video recording was a recording of what a machine detected and reproduced at the time and place in question, evidence of witnesses of what they say they saw on the recording is not different in law in point of principle from evidence of witnesses who claim to have seen the events by direct vision. 5 She contended that all the arguments advanced on behalf of this appellant are in truth arguments properly directed at weight and not at admissibility. I think she adds that they were present to the mind of the justices, and that they were fully taken into account. She has referred the court to no further authority. 10 In substance I accept the contention made for the prosecutor. For my part I can see no effective distinction so far as concerns admissibility between a direct view of the action of an alleged shoplifter by a security officer and a view of those activities by the officer on the video display unit of a camera, or a view of these activities on a recording of what the camera 15 recorded. He who saw may describe what he saw because, as Ackner LJ said in R v Kajala, to which I have referred, it is relevant evidence provided that that which is seen on the camera or recording is connected by sufficient evidence to the alleged actions of the accused at the time and place in question. As with the witness who saw directly, so with him who 20 viewed a display or recording, the weight and reliability of his evidence will depend on assessment of all relevant considerations, including the clarity of the recording, its length and, where identification is in issue, the witness's prior knowledge of the person said to be identified, in accordance with well-established principles.”. 25 [Emphasis added] [65] At the risk of repeating itself, this Court opined that the principle in Taylor’s Case (supra) was applicable to this case and therefore what SP8 saw on the video call was admissible and relevant 30 evidence provided that that which was seen on the video call was connected by sufficient evidence to the alleged actions of the child offenders at the time and place in question. The weight and reliability of SP8’s evidence will depend on “assessment of all relevant considerations, including the clarity of the video call, its 35 length and, where identification is in issue, the witness's prior knowledge of the person said to be identified, in accordance with well-established principles.”. In her re-examination at page 240 onwards of the Notes of Evidence, SP8 told the Court: Seterusnya tentang video yang kamu lihat dan kamu telah padam, kenapa kamu padam video tersebut? 5 Saya dapat video call, saya tidak ada bukti video call itu sebab tidak boleh merekod. Soalan saya, kenapa kamu pada video call tersebut? Sebab saya berasa takut. 10 Tadi kamu kata ada lihat, sekarang kamu kata tidak boleh rekod, apa maksud kamu ini? Video call lihat apa yang berlaku pada masa itu dan tidak ada fasiliti dalam telefon saya untuk rekod. 15 Kenapa kamu tidak menghalang bila CO1 beritahu untuk bunuh Simati? Saya tidak menghalang bila CO1 beritahu hendak bunuh simati sebab saya ingat dia dalam keadaan marah dan saya tidak ambil perkara itu sebagai serius. 20 Kenapa kamu tidak beritahu kepada CO2 tentang perkara yang telah CO1 beritahu kepada kamu tentang hendak bunuh simati? Saya tidak beritahu CO2 yang CO1 hendak bunuh abangnya. Sebab saya anggap tidak serius kerana dia marah dan perkara ini akan berlalu. 25 Video call yang kamu kata CO1 ada pegang pisau, ada kelar yang ditunjukkan kepada kamu itu wujud atau tidak wujud? Video call yang kamu cerita pada Mahkamah wujud atau tidak wujud? Wujud video call. 30 Kamu tidak setuju bila peguam kata kamu rasa SP10 yang merancang untuk membunuh simati, kenapa? Sebab kami tidak ada perasaan apa-apa terhadap Simati dan tidak ada sebab untuk merancang perkara itu. 35 Berkaitan dengan perjumpaan di Burmese Pool ada kamu tahu? Adakah terlibat? Perjumpaan di Burmese Pool saya tidak tahu dan tidak terlibat. 40 Apa tujuan kamu padamkan video call daripada yang kamu terima daripada CO2 dan CO1? Saya padam perasaan takut. Takut apa? Sebab dia akan menyalahkan saya, sebab itu saya berasa takut. 5 Mahkamah Dia itu siapa? CO2. [Note: I have substituted the names of the child offenders with CO1 and 10 CO2, respectively.] [66] I asked SP8 why she could not record the video call and it was established that her telephone could not record it as it did not have the facility/function to record a video call on that was made via 15 WhatsApp. The video call was made from CO2’s telephone. It must be remembered that this happened in 2019 and the WhatsApp technology then would not have been as advanced as it is now. This Court opined further that SP8’s description of what she saw in the video call and her reaction to it was for the Court to 20 decide on the weight of that evidence, it was not for her to give her opinion on what sort of offence had been committed. SP8 saw the clothes that the deceased was wearing at that time and she desribed them “baju oren, seluar warna hitam” and these items were the same as the clothes that could be seen in the photographs 25 of the deceased. She told the Court that she was very scared with what she had seen and later deleted their WhatsApp group conversation because she had been threatened by CO1 that “kalau you tinggalkan saya you akan dapat nasib yang sama”. On 6.7.2019, SP8 threw away her perfectly working mobile telephone 30 into a sewage pond near her neighbourhood. But the police managed to retrieve it after she told them where she had thrown away the telephone (P4(C1)). Refer to her evidence at page 189. [67] The weight of this piece of evidence must be assessed together with all the other evidence available before the Court, including her 5 demeanour and credibility as a witness. SP8 was cross-examined extensively by both counsels. They imputed her as a person of loose morale and bad character as she was prone to lying (refer to pages 217 – 238 of the Notes of Evidence). It was suggested to SP8 that she had a motive to kill the deceased because he 10 objected to her close relationship with CO2. It was put to this witness that she hated him and threw away her telephone to avoid any connection with the death of the deceased. It was also suggested that she, SP9 and SP10 had planned to kill the deceased at Burmese Pool that day because all of them did not 15 like the deceased due to his strict ways with CO2. It was further suggested that she had lied because she had given two different versions to the police during the first and second time that she was detained. Therefore, she had also lied to the Court and her evidence could not be believed. They contended that the video call 20 never happened and that was why she did not have any evidence of the video call in her telephone. SP8 disagreed with all these suggestions and had explained to the Court her answers. [68] I refer to P11(19) which was a photograph of the telephone that 25 listed the calls made in and out of SP8’s telephone. It can be clearly seen that a number of calls had been made from CO2’s number (see her profile photo on the left-hand side) and there was one video call made on 5.7.2019 at 4.05 pm for about 1 minute or so. I found that this record corroborated SP8’s evidence that a video call was made by CO2 to her telephone around 4.00 pm after the initial WhatsApp message to SP8 that CO1 had killed her brother. [69] There was also a telephone seized from a person named Karthik 5 A/L Krishnan i.e Samsung Galaxy Note in blue color on 10.7.2019 at 3.30 pm (marked by SP13 as LL1, exhibit P4(F1)). This person came to Court for identification and was offered to the defence. SP14 told the Court it was believed he was a relative of CO1. SP14 at page 546 of the Notes of Evidence mentioned something about 10 what CO1 had told Karthik regarding the incident but I did not admit any confession because Karthik did not testify in Court. However, I admitted SP14’s evidence which he said in the course of his investigation on CO1’s telephone (K8) and by SP2, there was a photograph in K8 which captured their attention. The photograph 15 was printed from the thumbdrive that SP2 created (P4(A1)) and marked as P43. The file name was 1562314397296.jpg and the time stamp was 5/7/2019 8:13:17 UTC (Device) that was stored in the device. 20 [70] Earlier, SP2 had explained about the time stamp and in this case, 8+ denoted the Universal Time Greenwich. I believed what he meant was UTC referred to Coordinated Universal Time which replaced the old reference to Greenwich Mean Time (GMT). In any event, by adding +8, the time of 8:13:17 meant it was 16:13:17, i.e. 4.13:17 25 pm. This photograph was taken on 5.7.2019 at around 4.13 pm, which was just minutes after the video call made to SP8 by CO2. P43 was disputed by the defence, unsurprisingly. The Court considered the probative value of this evidence as a photograph that was stored on the device K8 i.e. CO1’s telephone. But the Court did not make any conclusion that he was the person who snapped the picture. The significance of P43 was it showed a figure of a person clad in orange-coloured shirt and black pants, face-down and there was a white cloth around it which looked like it 5 had some bloodstains. The figure was on the floor of the room, and at the fore of P43, there could be seen parts of two pairs of feet with dark-colored skin. The figure in the photograph P43 appeared to be similar to the figure in the photograph tendered by the prosecution in P13(6). SP8 had testified that she saw the deceased lying on the 10 bed in the video call, but in P43, it was already on the floor. There appeared to be some white-colored items at the background which could be white cloths. The tiles on the floor of the room appeared to be similar to the tiles on the floor of the room in photograph P13(16). I was of the view that the photograph P43 could well have been 15 taken in the room on the groundfloor of the deceased's house where the murder was carried out. However, if this exhibit had been wrongly admitted, this Court opined there were many other evidence which pointed to the child offenders as the perpetrators of the crime against the deceased. 20 [71] From my observation of SP8, I found that she was a truthful witness despite her admission that she had lied to the police on one occassion. She admitted that she had lied to the police when first arrested because she was afraid of CO2’s threat. I found her explanation that she did not have any ill feelings towards the 25 deceased was honest and credible. She told the Court that she was not angry with the deceased since he was merely carrying out his duties as an elder brother of CO2. She did not tell CO2 about what CO1 had wanted to do to the deceased because she thought he was just being upset at that time and so she did not take his words seriously. She deleted the messages because she was afraid that CO2 would be angry at her after she found out about the death of her brother. 5 [72] The defence also claimed that SP8, SP9 and SP10 had concocted the stories against CO1 and CO2. They took objection to the fact that the 3 youths were sitting together outside the Court while waiting for their turn to testify because SP8 could brief the 2 boys about her testimony under cross-examination. The defence claimed that the 3 10 witnesses had gone for a meal together during one of the trial days and tendered some photographs taken from counsels’ mobile telephone. The DPP explained to the Court (see page 281) that SP8 was only called for identification that afternoon and was not present [73] I will now deal with the evidence of SP9. This witness went to the 15 same school as CO1, SP10 and the deceased at SMK King Edward in Taiping. CO1, SP10 and himself had been friends since they were in primary school. He had also been friends with CO2 and SP8. He explained about his relationship with the child offenders that CO1 was a good friend but they were not that close although he admitted 20 they ewould always meet up. CO2 was introduced to him by CO1. On 5.7.2019, for the first time he had gone to CO2’s house. He went with CO1 and SP10 from their school by Grab ride. Earlier at the school canteen, CO1 told him that CO2 invited them to go to Aeon Mall. He said it was Hari Berkomunikasi where parents would come 25 to meet the teachers and get their children’s report cards. Their parents did not come to the event. [74] CO1 said they would be going to the house at 11.00 am and then he ordered a Grab car. By 11.30 am they had arrived at her house. SP9 told them to enter through the backdoor. Upon entering the house, he saw SP8 there and an elderly woman. He then sat at the lounge and played a game on his telephone. CO1 was sitting in front of him 5

An admission is a statement oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which’s made by any of the persons and under the circumstances hereinafter mentioned, 25

A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence. … 30 [29] In sum and in the context of the present case, the appellant’s admission to his friend/colleague SP18 that he killed the deceased, in our judgment, is relevant evidence. It must be mentioned too that SP18 was not a person in authority in relation to the appellant. We find no evidence of that. We also find that there is no evidence of any inducement, threat or promise or any oppression against the accused, appellant. It is evident therefore that the admission was voluntarily made. It bears mentioning that at that point of time, the appellant was not even arrested. Thus, the 5 statements were clearly a full admission of guilt (see Ho Sek Kong v. PP [2011] 6 CLJ 522)…” [Emphasis added] [107] This Court opined that the admissions by CO1 and CO2 to SP9 and SP8, respectively, were relevant evidence and admissible in this 10 case. They were not under arrest then and neither were their friends persons of authority. The admissions were voluntarily made by CO1 and CO2. In fact, CO1 was gloating when he told SP9 that he had finished off the deceased. This was why SP9 became confused, he said he did not understand how CO1 could say such thing and yet 15 he laughed at the same time. As for CO2, upon sending her message to SP8 she was asked to make a video call to the latter. SP8 had described in detail what she had seen in the video call and she also told CO2 to take his pulse reading. However, CO2 said there was none. At that point of time, it was safe to conclude that the 20 deceased had died. CO2’s behaviour in the video call proved that she knew and was involved in the commission of the offence against the deceased. Therefore, in the same breath, the Court found that the element of in furtherance of their common intention under s.34 of the Penal Code had been proved. 25 [108] In PP v. Sanin Othman [2011] 1 CLJ 626 (CoA), the court held: “…[19] Since it is no easy task to establish the ingredient of intention it thus has to be established by inferences arrived at from the evidence made available. The evidence before the court was more than ample to establish that ingredient. To reiterate, the two injuries were caused by a dangerous instrument 30 ie, a knife. The injuries were deep and never mere slash wounds. With such wounds, which must have required great force, it would defy logic that the respondent did not intend to kill or cause serious injury on the deceased (Tan Buck Tee v. Public Prosecutor (supra). [20] It could never be overly emphasized that intention can be formulated on the spot. The time span spent in the shop, from the time he placed the knife 5 next to the neck of PW14, to the moment when the deceased appeared on the scene were not mere seconds. There was more than ample time for the respondent to formulate his intention to kill, or cause injury to someone, and that injury was sufficient in the ordinary course of nature to cause death in the event anyone gets in his way. 10 [21 Ratanlal & Dhirajlal's Law of Crimes, 24th edn., vol 11, Bharat Law House, New Delhi had authored: ... If from the intentional act of injury committed the probability of death resulting is high, the findings should be that the accused intended to cause death or injury sufficient in the ordinary course of nature to cause death and the conviction 15 should be murder. [109] Lastly, I refer to the case of Khoo Hi Chiang v. PP and Another Case [1994] 2 CLJ 151, the Federal Court stated, inter alia: “it was further argued on behalf of both the appellants that the prosecution had failed to establish beyond reasonable doubt a common intention between the 20 two appellants as laid down in s. 34 of the Penal Code which reads:

When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone. The effect of s. 34 of the Penal Code has been discussed in the Indian Privy 25 Council case of Mahbub Shah v. King-Emperor 72 IA 148 at 153 in these terms: To invoke the aid of s. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same 30 manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a prearranged plan; and to convict the accused of an offence applying the section, it should be proved that the criminal act was done in concert pursuant to the pre- 35 arranged plan. As has been often observed, it is difficult, if not impossible, to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case. [Emphasis added] [110] Pursuant to all of the above, upon a maximum evaluation of the 5 evidence before it, the Court found that the prosecution has proved all 4 ingredients of the offence and a prima facie case has been made out under s.302 of the Penal Code read with s.34 of the same against the offenders. Such a case, if unrebutted or unexplained would warrant a conviction on the offence charged. 10 THE DEFENCE CASE [111] In the case of Junaidi bin Abdullah v PP (1993) 3 MLJ 217, the Supreme Court held that: “By calling an accused to enter his defence, the trial judge must on evaluation of the evidence, have been satisfied that the prosecution had, at the close of the 15 prosecution’s case, established a prima facie case which, if unrebutted, would warrant a conviction of the accused. To arrive at such conclusion, the judge must consider all the evidence adduced by the prosecution as tested in the cross examination, on a prima facie basis”. 20 [112] Reverting to Balachandran’s Case (supra), His Lordship Augustine Paul continued with his explanation of the court’s duty at the end of the defence case as follows: “...As the accused can be convicted on the prima facie evidence it must have reached a standard which is capable of supporting a conviction beyond 25 reasonable doubt. However it must be observed that it cannot, at that stage, be properly described as a case that has been proved beyond reasonable doubt. Proof beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt the other is the evidential burden on the accused to raise a reasonable doubt. Both these 30 burdens can only be fully discharged at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by s. 182A(1) of the Criminal Procedure Code. That would normally be the position where the accused has given evidence. However, where the accused remains silent there will be no necessity to re-evaluate the evidence in order to determine whether there is a reasonable doubt in the absence of any further evidence for such a consideration. The 5 prima facie evidence which was capable of supporting a conviction beyond reasonable doubt will constitute proof beyond reasonable doubt ...”. [113] At this stage, has the prosecution proved its case beyond a reasonable doubt to enable the Court to safely convict the child 10 offenders? The duty of the Court at the end of the defence case is provided under s.182A of the CPC. The Court will now consider the defence version in light of the prosecution evidence, whether it has raised a doubt on the prosecution case. The child offenders and CO1’s aunt, Kanelakshumi A/P Asogan (SD3) were the witnesses 15 for the defence case, where CO2 had testified first followed by CO1, as the parties have agreed on the order of witnesses among themselves. [114] CO2 testified first and her evidence were as follows: 20 i. that the police did not have any reason to charge her because she was not involved in the murder of her brother, the deceased; ii. she was 14 years old when she was charged and she was thin, small built and weighing only about 35 – 40 kg then; 25 iii. it was impossible for her to sever his neck a few times at her house because the deceased was 17 years old and a strong sportsman whereas she could not match his strength; iv. further she could not have done that because she loved her brother very much; 30 v. on that fateful day, she and her friends had made plans to skip school and instead spend their time at Aeon shopping mall that had just opened; vi. while they were at her house, the deceased came home and her friends left quickly from the back door because they were 5 scared for 2 reasons: a. they were planning to skip school to go to Aeon; and b. all her friends knew that her brother was very disciplined and as it was the custom of Indian families, young girls were discouraged from befriending and spending time with 10 members of the opposite sex; vii. when the deceased entered the house he noticed SP9’s telephone had been left behind, she told him that her friends had been at their house and it belonged to SP9; viii. that her brother knew SP9 as they went to the same school; 15 ix. the deceased told her he would return the phone to SP9 and she need not do so, and she was also reprimanded her for befriending the boys; x. as it was their custom not to talk back to the elders, she just went upstairs to her room and did not come down; 20 xi. she slept thereafter and only woke up when her mother returned home from work that evening; xii. there was nothing unusual about the disappearance of her brother as he used to go out with his friends and would call their mother if he would be back late; 25 xiii. however, as it was late and her brother had not returned the next day, she accompanied her mother to lodge a police report; xiv. suddenly she was charged for murder and being involved in his death which she claimed did not make sense, especially since she was just 14 years old; xv. it did not make sense that the murder happened in the room on the groundfloor because she was upstairs and would have 5 known or heard about it (the attack); xvi. there was an elderly lady (house help) who lived with them for a long time and being an asult, she would know if anything happened at the house; xii. if there was a murder at her house, her neighbours would have 10 heard screams because their neighborhood was a quiet place; xiii. there were no bloodstains on the floor of the said room that even she being a child knew it was an impossibility; xiv. there were no bloodstains on the mop seized by the police whereas there was only one mop in the house; 15 xv. the yellow raffia strings seized by the police did not have any bloodstains; xvi. her clothings seized by the police also did not have any bloodstains on them; xvii. it was impossible that someone her size and height would 20 have been able to hit the deceased’s head a few times; xviii. there was no evidence adduced as to what she had allegedly used to hit the deceased and how many perpetrators; xix. most importantly, how could someone her age be able to lift (mengangkat) the deceased’s body from the room downstairs 25 and place it at the next door neighbour’s house as the distance from the said room to the back of the said house was “very far” (sangat jauh) and someone i.e. their neighbours would have seen the body being carried outside before her mother returned home from work at 6.00 pm; and xx. being only 14 years old, she would not have been able to tie up and wrap a dead body. 5 [115] CO2 also claimed that she was not involved with the murder of her brother as charged because her DNA profile could not be traced on the deceased and neither was his blood found on her or under her nails. She alleged that the police had brought her to the location by the side of the drain at Lorong Saujana 1 and told her to point out to 10 the cloths and bags. She cried because she had found out about her brother’s murder and saw her parents were also crying. She disputed the prosecution evidence regarding the cloths and asked which of them could prove the offence was carried out in the room on the groundfloor when SP5 could not even identify the exhibits 15 and no police markings were made on them. [116] CO2 believed that her brother was killed outside the house after he was beaten by some people as what SP11 had told the Court and that he would have been tied up first before beaten up. In paragraph 20 23 of her witness statement marked as PSD1, she stated: “Saya juga percaya bahawa ini mungkin merupakan satu pergaduhan yang telah menyebabkan beberapa orang memukul abang saya, dan kemudian mengerat lehernya dan telah membuang mayatnya pada waktu malam 25 dibelakang rumah saya kerana mustahil untuk melakukan pada siang hari.” [117] The evidence of CO1 can be summarised as below: i. he was 15 years old at that time and weighing only about 50 – 55 kg then; 30 ii. it was impossible for him to commit the murder because the deceased was 17 years old and a strong sportsman whereas he could not match his strength; iii. the distance from the said room to the back of the next door neighbour’s house was “very far” (sangat jauh) and he did not 5 have the strength to lift and transfer the dead body to the location where it was found; iv. on 5.7.2019, he went to school in the morning but later he and his friends SP9 and SP10 planned to go to Aeon to spend time there; 10 v. on the way there, he received a call from SP8 who asked them to drop by CO2’s house so that they all could go to Aeon mall together from the latter’s house; vi. the three of them went to CO2’s house and saw SP8 there; vii. he saw the house help at CO2’s house; 15 viii. he knew the Indian lady because she was always helping CO2’s family at the house; ix. she appeared to be healthy and active and he had chatted with her that morning where there was nothing unusual happening at that time; 20 x. while they were getting ready to go out, the deceased came back and CO2 panicked and told them to leave through the back door as her brother would be angry and create problems if he knew they were there; xi. they left through the back door and hid in some bushes near 25 the house; xii. on 6.7.2019, his aunt (SD3) told his mother that the police wanted to investigate him; xiii. his mother went to his aunt’s house and brought him to the police station that night where 2 Indian policeman interviewed him about the deceased’s disappearance; xiv. he was shocked to hear the name because he did not know anything about thefully disappearance but he co-operated 5 with the police and was later released; xv. on 7.7.2019, he was told to go to the police station again for further investigation; xvi. he had denied any knowledge about the incident but he was beaten and forced by the police to admit to something which 10 he did not do; xvii. he was beaten for 7 straight days but he never admitted to anything as he was innocent; xviii. he lodged a police report that he was abused while in police custody; 15 xix. in the police report dated 10.7.2019, he claimed that he was tortured and hit by the policemen. As a result, he sustained injuries to his ear and nose; xx. on 10.7.2019, he was brought to his house and the police showed him a telephone on the dresser which he claimed he 20 was shocked as he had never seen it before; xxi. he was told to point to the telephone and the police took some photographs there; xxii. his aunt by the name of Santhi A/P Balan informed the police that a few days before, after he was arrested, SP9 came by 25 the house and went into his room. He did not know about the incident until she told him about it; xxiii. while in police custody, he was brought to a mining pool and asked if he had thrown anything in the pool, but nothing was recovered there; xxiv. he claimed that his telephone was used on 7.7.2019 where the police showed him Exhibit 43 i.e. a picture which he said 5 he did not know how it happened to be in his telephone; [118] CO1 also claimed that he was not involved with the murder because his DNA profile could not be traced on the deceased and neither was the latter’s blood found on him or under his nails. He disputed 10 how could someone his age be able to murder the deceased, wrap it, lift (mengangkat) the deceased’s body from the room downstairs to the next door neighbour’s house and clean up the crime scene without leaving any traces of blood or DNA. He also repeated the same statement as CO2 i.e. his theory as to how the deceased was 15 killed. [119] SD3 gave evidence in her witness statement as follows: i. denied SP12’s testimony in Court on 30.1.2023 which she found out about when she came to see CO1 on 16.2.2023; 20 ii. denied her involvement in the case; iii. lodged a police report on 16.2.2023 (D4) to refute SP12’s allegation that she was the person who called SP12’s mother on 7.7.2019 to inform her about the location of the deceased and CO1’s confession that he had killed the deceased; 25 iv. that SP12’s evidence was a concoction and falsely made. [120] Before I comment on the child offenders’ defence, I would only state here that I found SD3’s evidence to be untrue. She was definitely an interested witness and her name had been mentioned as the person who had given SP12’s family the tip-off regarding the location of the deceased on 7.7.2019 after he had been missing for 2 days. She had also inadvertently let them know that her nephew, CO1, had killed the deceased when she called SP12’s mother. The remains 5 of the deceased was only discovered after they received the phone call from her. The body was wrapped tightly in the grey-colored comforter and large plastic bag and therefore, at first there was no odour to indicate his body was behind their neighbour’s house all along. If his family had not been informed about the location of his 10 body, they would not have been able to find it within only 2 days of him gone missing; they would not have known it was just there because the house No. 11 was unoccupied. [121] The learned DPP submitted that both the child offenders defence 15 were bare denials and an afterthought. CO1 stated in his witness statement that: “Ketika kejadian tersebut berlaku di rumah, makcik saya iaitu Santhi A/P Balan juga berada di situ. Selepas pihak polis menunjukkan telefon tersebut kepada 20 saya, makcik saya telah memaklumkan kepada polis bahawa beberapa hari sebelum itu selepas saya ditangkap oleh polis, rakan saya iaitu SP9 pernah datang ke rumah dan masuk ke dalam bilik saya. Saya sendiri tidak tahu tentang perkara itu sebelum makcik saya memberitahu saya pada hari kejadian tersebut.” 25 [122] The Court found that this was indeed an afterthought because it was never suggested to SP9 when he gave evidence at the prosecution stage. How could SP9 then “defend” himself against this sudden attack to imply that SP9 was the person who “planted” the 30 deceased’s mobile telephone at CO1’s home? It was the defence suggestion that SP9 was the perpetrator of the crime against the deceased because he was bigger in size than CO1. But at the defence stage only was this allegation against SP9 raised that he had gone to CO1’s house when he was in police custody, allegedly to place the deceased’s mobile telephone on the dresser. This new allegation was preposterous to say the least and totally false! The 5 Court could not accept and did not believe CO1’s defence in this regard. [123] CO1 also alleged that on 6.7.2019, his aunt (SD3) told his mother that the police wanted to investigate him and she brought him to the 10 police station where he had answered some questions. However, I found that this too was never raised at the prosecution stage. The prosecution evidence was CO1 was arrested and brought in for questioning only after the deceased’s body was discovered by his family members behind house No. 11 later in the morning of 15 7.7.2019. [124] In the case of Megat Halim Megat Omar v. PP [2009] 1 b 5], Abdull Hamid Embong JCA held that: 20 “… [63] Although in our criminal jurisprudence, there is no burden on an accused person to prove his innocence but merely for him to raise a reasonable doubt as to his guilt, it is trite that his defence should be put to the prosecution at an early stage during the prosecution case. Failure to do so may move the trial court to dismiss a particular line of defence 25 as an afterthought, or a recent invention as happened in this case. [64] Raja Azlan Shah CJ (Malaya) (as His Highness then was) in Wong Swee Chin v. PP [1980] 1 LNS 138; [1981] 1 MLJ 212 puts this principle in these now famous words: 30 ... there is a general rule that a failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of a witness's testimony. [65] In our adversarial system, that principle is applicable in both civil and criminal trials. [66] The appellant's defence can be ascertained not merely from his own evidence but also the line of cross-examination of the prosecution's 5 witnesses (see Kuli & Ors v. Emperor AIR [1930] Cal 442, cited in PP v. Dato Seri Anwar bin Ibrahim (No. 3) [1999] 2 CLJ 215). This has been termed as a rule of essential justice. [Emphasis added] 10 [125] In regard to CO1’s allegation that he was beaten and tortured by the police to confess to the crime, the Court noted that he lodged the report more than a month after he was released from custody. He had contradicted himself when he stated in the witness statement 15 the date was 10.7.2019 when in effect, he lodged the report on 28.8.2019. In fact, the story about him being beaten and tortured by the police was created to deflect the real issue of his guilt. It also did not make sense for the police to not bring him immediately to the hospital while he was in remand to seek treatment if his allegation 20 was true. This was because he said he had made a complaint to the Magistrate on duty that he was beaten while in custody. [126] I noted further that CO1 merely denied the prosecution version when so many allegations had been made against him by his own good 25 friends. He simply denied going to the deceased’s home and that he had gone straight back to his own house. How was it then that the deceased’s handphone was found on the dresser in his room at the grandmother’s house? Although he claimed that the police had framed him and he did not volunteer any information, the Court did 30 not rely on s.27 of the Evidence Act 1950 but considered his conduct under s. 8 of the same as relevant evidence against him. [127] CO1 also in his witness statement never mentioned about SP9’s telephone which was left behind at the deceased’s house. However, even CO2 acknowledged this fact. Therefore, this material contradiction in the defence case went to the issue of his credibility before the Court. He also denied any knowledge how P43 was found 5 in his telephone. The Court did not accept his denial because there was evidence from SP14 that Karthik came to surrender his telephone to the police after the picture (P43) was received from CO1. As I had stated earlier, even if P43 had been wrongly admitted, the Court found ample evidence in the prosecution case to call for 10 his defence. [128] I found that since CO1’s evidence had not touched on the “mini-gathering session” at Burmese Pool, he did not admit the prosecution version that the 3 of them had spent some time there 15 after they left CO2’s house. SP8 gave evidence before the 2 boys. However, it was suggested to SP8 that she was also present at Burmese Pool and had taken part in the discussion with SP9 and SP10. There was evidence from SP9 and SP10 that only they and CO1 was at Burmese Pool that day. If CO1 was never present at 20 Burmese Pool that day, how did he know that there was such a gathering at that place? Therefore, I found this was another bare denial by CO1 when he should have offered an explanation to the Court regarding this allegation against him. 25 [129] In Ali Tan Bin Abdullah v PP [2013] 2 MLJ 676, the appellate court held: “[25] Indeed, mere denial or presenting a bare story of innocence, such as in the circumstances of the present case, cannot amount to reasonable doubt. The court's acceptance of the explanation offered by an accused person 30 must be based upon reason and common sense, and cannot be illogical or irrational. The existence of reasonable doubt is dependent upon the totality of the evidence and on an examination of all the evidence in a fair and reasonable manner and not in isolation. [Emphasis added] 5 [130] I refer to the case of often-cited case of Ganapathy a/l Rengasamy v PP [1998] 2 MLJ 577 which states: “It needs to be remembered that however weak a defence may be, trial judges being judges of both fact and law should not just brush aside the 10 defence on the basis that the prosecution witnesses are to be believed and not the defence. Where the law casts the onus of giving an explanation upon an accused person, and the explanation is given, which is consistent with innocence, the court is duty bound to consider whether it might reasonably be true, although not convinced of its truth. 15 On the issue of the court’s duty to consider the defence, the age-old decision in Mat v. PP [1963] MLJ 263 is still good law as it was then. This is followed by the Supreme Court in Mohamad Radhi bin Yaakob v. PP [1991] 3 MLJ 169”. [Emphasis added] 20 [131] One of the defences of CO1 and the main defence of CO2 was that they could not have committed the offence due to their smaller size as compared to the deceased. I have discussed this issue during the prosecution stage and I agreed with the expert opinion that given the right opportunity (and may I add, “brains”), even a smaller built 25 person could overpower a bigger opponent and incapacitate him, and then deliver the fatal blow. More importantly was the fact that the black-hilted knife with the deceased’s DNA profile was found pursuant to CO2’s conduct. And CO2’s DNA profile was found on two of the swabbings taken from the wall of the room on the 30 groundfloor. The attack may have started on the bedroom upstairs but they ended up killing him in the room downstairs (P13(16)). Their denial of being present at the crime scene had not raised any doubt in light of the prosecution evidence against both child offenders. [132] I have considered the issue of no bloodstains in the room on the groundfloor that the child offenders raised in their defence. 5 However, as I have stated above (during the analysis of the prosecution case), SP5 and SP14 gave evidence that most of the bloodstains in the said room had been cleaned; many cloths found beside the drain had been used to wipe off the bloodstains. From my assessment of the child offenders, I found that they were “smart” 10 children who knew what they were doing then. CO1 could not get anyone to drive a car to dispose the body elsewhere and therefore they just left it very near the crime scene after making some effort to “cover” the body so it would not be discovered immediately. 15 [133] I had no doubt at all that the child offenders had disposed the body by using the grey-colored comforter to cover it and placed the body inside the large plastic. They tied the yellow raffia string around the “package” and then dragged it out of the room, through the kitchen door and left it at the backyard of house No. 11 which was just next 20 door. These were terrace houses and not some bungalow with a big compound. I found it odd that the cross-examination on SP12 featured some questions about Govinthamal; that as a domestic helper she would carry out whatever instructions given to her. Including maybe helping to dispose the body? However, they 25 stopped short of making that suggestion because it would definitely implicate the child offenders if that question was asked. They also seemed very interested in the large plastic bag that was not tendered (but seen in the photographs covering the deceased and stated in the postmortem report P22). My conclusions above have been made based on the strength of the direct and circumstantial evidence before the Court. [134] I had applied the principle in Mat v PP (supra) and took into 5 consideration the limb that even if the Court does not believe the explanation of the child offenders, the Court must still go on step further that the version though not believable, is nevertheless possible because it has raised a doubt on the prosecution case, they must be acquitted. After listening to their evidence, scrutinising them 10 and testing against the prosecution version, the Court found that the child offenders had not raised any doubt on the prosecution case. [135] It is trite law that the circumstantial evidence must not be capable of any other interpretation of any other meaning other than to point to 15 the irresistible conclusion that the child offenders had perpetrated the crime against the deceased. From the totality of the evidence adduced by the prosecution, the Court found that the pieces of evidence when taken together do point to the child offenders as the perpetrators of the crime. Therefore, the prosecution had proved 20 beyond reasonable doubt that the child offenders with common intention had committed the crime and caused the death of the deceased on 5.7.2019 at the place and time as stated in the charge, read together with s. 34 of the Penal Code. I found both child offenders guilty of the charge and convicted them accordingly. 25 [136] The case had gone on for so long due to the COVID19 pandemic and other reasons or circumstances that affected the parties; it would be an injustice to everyone involved if the case had been postponed without any good reason. Even the defence case had been postponed several times upon their request, but the Court had to proceed with the defence case in the interests of justice. I thank the parties for the written submissions and complying with the Court’s instructions in their filing of the documents. I have 5 considered the submissions and case laws cited by the parties. However, I was not persuaded by their submissions. [137] Looking at the extent of the injuries sustained by the deceased, one would think that the perpetrator had the necessary mens rea to 10 commit the crime of murder. As stated by SP11, the fatal injuries to the neck were sufficient in the ordinary course of nature to cause his death, hence the prosecution relied on the third limb of the offence in s.300 of the Penal Code. He bled to a slow death, because the fatal injuries did not cut the main artery. I cannot imagine the pain, 15 despair, the helplessness that the deceased must have felt as he slowly bled to death. The tragedy of it all was that CO2 and the deceased were siblings who grew up together and were close to each other according to the eldest sibling. 20 SENTENCE [138] As they were under the age of 18 years when the crime was committed, the Court was presented with the welfare report of both child offender during the sentencing process. The reports are available in the records of appeal. According to the Pegawai 25 Pembangunan Masyarakat in his reports, based on the interviews with both child offenders, they have not repented and for their own best interests, a custodial sentence should be considered by the Court. [139] The learned DPP pressed for the death penalty (and substituted with an order under s.97(2) of the Child Act 2001) as a deterrent to the 5 public at large and it was an apt punishment for the child offenders, taking into consideration the facts of the case, the seriousness of the offence and that they have not shown any remorse. [140] In his mitigation, the first child offender pleaded for leniency on the 10 ground that he had repented and that he wished to pursue his studies. Growing up and being raised by his grandparents, he lacked the love of his parents and was envious of his friends who had parental love. 15 [141] In her mitigation, the second child offender pleaded for leniency on the ground that she has been married and has a young toddler. Unfortunately, from my assessment of CO2, I found that she did not show any remorse for her part in the murder of her own brother, whom she said was close to her. 20 [142] Both child offenders had been on bail all along until the judgment day. Given their circumstances, both counsels prayed for them to be released on bond of good behaviour under s.294 of the CPC. However, I did not find any special circumstances that warranted 25 their release. The Court must show its abhorrence at such a grave and vicious crime committed upon her own brother, and a life has been lost tragically and unnecessarily. The child offenders must now pay for their crime. [143] The Court found that their murderous acts were very serious and would not have hesitated to pass the death sentence upon them if they had been adults when the crime was committed in 2019. Given their age at the time of commission of the offence, the Court ordered them to be detained as provided for under s. 97(2) of the Child Act 5 2001 during the pleasure of His Majesty the Ruler of Perak Darul Ridzwan. It was also ordered that they be given access to education so that they may complete their life experience. CONCLUSION 10 [144] After considering all the evidence before it, this Court found that the prosecution had proved its case beyond a reasonable doubt and ordered both child offenders to be detained in custody during the pleasure of His Majesty the Ruler of Perak Darul Ridzwan as 15 provided for under s. 97(2) of the Child Act 2001. Order accordingly. 20 Dated 16 April 2026 Sgd. 25 NOOR RUWENA BINTI MD. NURDIN Judge High Court of Malaya, Taiping Perak Darul Ridzwan 30 For the Public Prosecutor: DPP Sally Chay Mei Ling Pejabat Timbalan Pendakwa Raya Negeri Perak, Taiping 5 For the Child Offenders: Mr. Ranjit Singh Sandhu A/L Shingara Singh 10 with Mr. Faazil Rahman Messrs. Ranjit Singh Sandhu & Co., Ipoh Dato Kevin Joshua with Ms. Leong Xin Wen Messrs. Kevin & Co., Kuala Lumpur 15 20 25 30 35 40 45