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

1 DALAM MAHKAMAH TINGGI MALAYA DI TAIPING DALAM NEGERI PERAK DARUL RIDZWAN PERBICARAAN JENAYAH NO: AB-45B-1-01/2020 PENDAKWA RAYA 5 LAWAN [NO. K.P.: 04XXXX-08-XXXX] 10 [NO. K.P.: 05XXXX-08-XXXX] GROUNDS OF JUDGMENT 15 INTRODUCTION [1] The Court has used initials only for the names of the offenders in this case because they were both children under 18 years of age at the time of the commission of the offence. Both of them were a boy 20 aged 15 and a girl aged 14, respectively. They will be referred to as “the child offenders” collectively, and singularly as CO1 (the first child offender) and CO2 (the second child offender). They were charged with the murder of CO2’s elder brother. The charge (with some details witheld by this Court) read as follows: 25 “Bahawa kamu dengan niat bersama pada 5 Julai 2019 jam lebih kurang di antara 3.00 petang hingga 6.00 petang bertempat di rumah No. XX, Lorong X, Taman Gleenview, Kamunting, dalam Daerah Taiping di dalam Negeri Perak Darul Ridzwan telah membunuh S A/L S (NO. KP: 021209-08-XXXX) dan 30 dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan dan dibaca bersama seksyen 34 Akta yang sama.”. 17/04/2026 04:27:40 AB-45B-1-01/2020 Kand. 312 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 [2] 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 [3] 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). [4] 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 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). [5] 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. [6] 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 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 [8] 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 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. [9] 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 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). [10] 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”. **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 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. **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 [14] 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:

15. 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. **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 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. **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 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. **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 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. **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 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. **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 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. **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 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. **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 [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. **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 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). **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 [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:

whereas CO2 was chatting with SP10 and SP8 was playing with the dog. [75] About 30 minutes later, he heard the sound of a motorcycle and he went to peek at the curtain. He saw the deceased opening the front gate (whom he said everyone at school knew him as “SM”). He said 10 to them “abang SM dah datang”. Then CO2 shouted at them all to run. So the 3 of them ran off through the backdoor. They ran because if SM knew they were there, all of them would get into trouble with their parents. They ran to hide at a small forested area near the house whereas SP8 went to the opposite direction and he 15 did not know what happened to her. They then checked their belongings to ensure nothing had been left behind in their haste to get out of the house. That was when SP9 realised that his Vivo mobile telephone was missing. The telephone was bought for him by his father, and so SP9 became afraid that SM would find his 20 telephone that was inadvertently left behind. [76] SP9 told the boys that he would go back to the house to retrieve his telephone with SP10. When he heard that, CO1 immediately dialled SP9’s number. The deceased picked up the call. He was standing next to CO1 and therefore, he could hear the deceased’s voice 25 answering the call. After CO1 ended the call, he told them the deceased wanted to meet them at his house “untuk nak cakap benda ini”. SP9 narrated to the Court that CO1 said to him “kalau pergi **Note : Serial number will be used to verify the originality of this document via eFILING portal 55 depan rumah dia, kalau tengok apa-apa benda tajam atau apa-apa selain itu ambil dan pukul sahaja abang SM” (page 261). SP9 did not agree and he replied “jangan buat apa-apa hal, saya hendak ambil telefon saya”. He said CO1 agreed not to do it. Thereafter, SP9 and CO1 went over to the house whereas SP10 waited at a 5 nearby cake shop. When they arrived at the house, the deceased came out to the front gate and they talked there. [77] The deceased scolded them and said how dare they came to his house without permission. SP9 apologised to him while CO1 just kept quiet. The deceased said he was going to tell their parents 10 about this. Then CO1 also apologised to the deceased. SP9 asked for his telephone back but SP9 refused. He told SP9 to come and collect the thing but SP9 refused and said he would ask his elder brother to come as his brother knew the deceased; the deceased agreed. CO2 was not with them as she was in the house. 15 [78] CO1 ordered a Grab car and they went off to pick up SP10 at the cake shop. SP9 thought they were going back to school to wait for their fathers to pick them up but CO1 did not say anything. After a while, the driver sent them to Burmese Pool and he asked CO1 why they were going there. CO1 just told them to keep quiet and they 20 went to a small hut at Burmese Pool, a popular recreation spot in Taiping. CO1 bought them a couple of bottled water. There were not many people bathing in the river at that time. [79] SP9 then told the Court that CO1 said he wanted to only say one thing and that was, “nak call abang SM dan bawa dia ke atas dan 25 bunuh dia” (page 265 of the Notes of Evidence). According to SP9, he looked a bit angry when he said that. “Bawa dia ke atas” meant **Note : Serial number will be used to verify the originality of this document via eFILING portal 56 to bring SM to CO1’s grandfather’s orchard that was located up river. Upon hearing him say that, SP9 and SP10 told him they did not want to do as he suggested and that they wanted to go home. [80] CO1 then ordered a Grab car to go back because SP9 and SP10 did not have any money to order one themselves. They were at 5 Burmese Pool for about 35 minutes, just hanging around and looking at the scenery. He could not remember what time did the car arrived but they were sent back to their school about 1 km away from Burmese Pool. They waited for their rides to go home while CO1 went to the side and made a telephone call to someone (SP9 said 10 he did not know who it was). Subsequently SP10’s uncle arrived to pick him up. After about 2 minutes, SP9’s father arrived at the school gate. CO1 was still there when SP9 left in his father’s car. He arrived home at 1.00 pm, had a shower and rested as he had an IT tuition class at 4.30 pm somewhere near Hotel Legend Inn. 15 [81] SP9 did not inform his father about his telephone because the latter did not know what had happened that day. SP9 said if his father knew about it, he was afraid he would be scolded by his father. However, when his father came to pick him up after tuition class at 7.00 pm, SP9 was asked why did CO1 telephone his (SP9) father 20 and tell him that SP’s telephone was with CO1. SP9 decided to come clean and told his father about everything that had happened on that day. True enough, his father scolded SP9 and asked why he did not inform about this earlier. His father immediately changed direction to go to CO1’s house. Upon reaching the house at 7.15 pm, his father 25 waited in the car while SP9 talked to CO1 outside the house, asking about his telephone. He said what happened next confused him (I would term it “mind-boggling”). SP9 told the Court when he asked **Note : Serial number will be used to verify the originality of this document via eFILING portal 57 CO1 how did he manage to get the telephone back, the latter replied while laughing “saya sudah habiskan SM”. This was SP9’s evidence (at page 270, and again I have changed their names accordingly): Apa reaksi kamu? Saya tidak percaya dia, saya confused nak buat apa tidak tahu. 5 Saya ingat dia tipu ke macam itu. Kamu faham ke apa yang CO1 bagitahu kamu, saya sudah habiskan SM? Saya faham maksudnya. Dia cakap bukan marah tapi ketawa, saya 10 sudah confused. Lepas itu kamu masuk kereta semula? 15 Selepas itu apa berlaku? Saya balik ke rumah. … Perkara bahawa CO1 bagitahu, saya sudah habiskan SM, ada kamu 20 beritahu pada sesiapa? Kamu bagitahu siapa? SP10. 25 Bila kamu bagitahu? Masa saya sudah balik ke rumah, saya call SP10, SP10 tanya macam mana saya dapat phone saya balik, saya pun cakap CO1 yang bagi. Saya pun cakap pada SP10 yang CO1 bagitahu dia sudah habiskan SM, 30 SP10 pun tidak percaya dan dia tanya betul ke CO1 dah habiskan SM? Apa yang kamu faham, perkataan yang digunakan habiskan SM? Saya pun tidak paham. Kita 2 orang tidak faham apa berlaku dan sudah confused. 35 Adakah kamu ada berjumpa dengan SP10 selepas itu dan bagitahu SP10 selain kamu call hubungi guna telefon, ada tak kamu berjumpa dengan SP10 selepas itu dan cakap perkara ini? Tidak. 40 **Note : Serial number will be used to verify the originality of this document via eFILING portal 58 Jadi kamu beritahu SP10 melalui phone sahaja? Apa berlaku selepas itu? Saya dan SP10 hendak call CO1, saya buat conference call dekat 5 SP10? Apa maksudnya? Conference call itu macam mana? Saya buat conference call 3 orang bercakap selepas saya call SP10. Bila masa kamu buat conference call ini? 10 Masa saya balik ke rumah. Pukul berapa? Pukul 7.15 malam. Mula-mula saya call SP10 dan lepas itu buat conference call dengan CO1. 15 Conference call dengan siapa? CO1, saya dan SP10. … 20 Kenapa kamu buat conference call kepada CO1 dan SP10? Sebab kita confused tidak tahu apa berlaku dan kita 2 orang call nak tanya pasal apa yang telah berlaku. Nak tanya pasal apa yang telah berlaku. SP10 tanya dekat CO1, 25 sudah habiskan SM betul ke? CO1 cakap “apa awak merepek ni”. Dia pun cakap jangan cakap benda ini dalam phone nanti polis dapat trace phone itu dan CO1 matikan call. [82] After the conference call ended, SP9 went to bed. On Saturday, at 30 11.00 am he received a WhatsApp message from SP8 asking if he knew how to drive a car. He replied that he did not and asked her why she was asking him that question. She replied that CO1 told her to ask that question. He continued: Apabila SP8 WhatsApp begitu, apa kamu fikir ketika itu? 35 Saya pun fikir kenapa dia tanya macam itu. Tapi saya sudah tanya kenapa tanya macam ini. Dia pun cakap CO1 yang suruh tanya dekat saya. **Note : Serial number will be used to verify the originality of this document via eFILING portal 59 Ada bertanya balik untuk apa dia bertanya kamu boleh memandu kereta atau tidak? Dia cakap untuk ambil mayat SM. Siapa yang cakap? 5 CO1 cakap pada SP8 dan SP8 cakap dekat saya. … Whatsapp. Saya tanya dia kenapa. SP8 cakap CO1 nak kereta sebab 10 nak ambil mayat SM letak dalam kereta dan pergi tempat lain dan bakar. Saya tanya betul ke. SP8 pun cakap “saya pun tidak tahu betul ke bohong”. Ada kamu ambil kereta dan berjumpa dengan CO1 selepas itu? 15 Tidak. … Adakah kamu ada menelefon CO1 dan tanya kepada CO1 untuk 20 pengesahan tentang perkara ini? Tidak. Kamu tidak call CO1 tanya? Tidak. Saya pun tidak tahu apa yang jadi masa itu dan saya pun tidak 25 percaya apa yang mereka cakap. Selepas itu apa yang berlaku? SP8 offline dan tidak mesej lagi. Itu sahaja. ... 30 Selepas itu apa berlaku? Apa tindakan kamu lepas itu? Saya confused dan tidak ambil serius, saya ambil phone, main game dan kemas rumah, rehat dan tidur. ... Ada tak pihak kamu dipanggil oleh pihak polis untuk datang ke balai polis 35 selepas itu? Polis ada panggil saya ke balai Bila? **Note : Serial number will be used to verify the originality of this document via eFILING portal 60 Hari Ahad saya pergi tuisyen pagi pukul 8 pagi tuisyen Maths. Saya pergi pukul 10 pagi dan bapa panggil saya. Saya tanya kenapa? Bapa tanya “you tahu abang SM sudah meninggal dunia”? Apa reaksi kamu apabila bapa kamu bagi tahu abang SM sudah 5 meninggal dunia? Saya rasa terkejut bila dapat tahu. Saya tidak faham apa yang terjadi. Saya tanya bapa dan bapa pun tidak tahu. [83] SP9’s cross-examination was pretty much similar to the previous 10 witness. The defence challenged the veracity of his evidence and his credibility. I noted that by the time he gave evidence in 2022, he was already 18 years old. Because of his bigger body size, the defence suggested that it was SP9 who had killed the deceased out of revenge and had lied to the Court about it. SP9 was asked and he 15 replied that they were good friends but not that close. He admitted that CO1 had uploaded photos of them during their outings. SP9 told the Court that he left the house when the deceased came home because “SM kaki pukul di sekolah”, but SM never beat him. He did not have any problem with SM in school and neither was SP10 nor 20 SP8. He denied that SP8 was once slapped by SM in school. [84] SP9 admitted that he had lied to his father that he was in school when in fact he had gone to CO2’s house without telling his father. He agreed that he was scared and so he lied. Therefore, he was portrayed as someone who was prone to lying when he was scared 25 of his father. He disagreed. SP9 was asked how he recognised SM’s voice on the phone. He replied that he could recognise SM’s voice because “Hari-hari jumpa dekat sekolah di kantin. Kita duduk tempat yang sama di kantin”. The defence also suggested that there was no evidence that he went to tuition that afternoon of 5.7.2019 to which 30 **Note : Serial number will be used to verify the originality of this document via eFILING portal 61 he disagreed. That night he got back his telephone, CO1 called his father but he did not know when. It was past 7.00 pm after he finished tuition. He told the Court that when CO1 said “sudah habiskan SM” in Tamil, the word was “mudchite”. [85] SP9 admitted that he did not inform his father or the police at first 5 about SP8’s WhatsApp message on the Saturday morning of 6.7.2019. He only told them later. His father told SP9 to co-operate with the police and share the message. However, he cleared all his WhatsApp chat because he said he always cleared his telephone chats. On the issue whether he knew “SP8 pada hari itu marah 10 sebab dia tahu CO2 dan CO1 mempunyai hubungan”, SP9 replied that he did not know about their “fight”. I noted that SP8 herself was never asked about this when she was cross-examined. [86] SP9 was asked and he replied that SP8 never told him she had seen in the video call that CO1 and CO2 killed the deceased. But it must 15 be remembered that on the evening of 5.7.2019 CO1 had admitted to SP9 that “saya sudah habiskan SM”. The defence suggested that SP9 and SP10 went to Burmese Pool to make a plan to kill the deceased and he was the person who threw the bloodstained cloths at the drain beside the small hill (Lorong Saujana 1). It was also 20 suggested that SP9 placed the body of the deceased behind house No. 11 and later made a plan to get a car to dispose the body and burn it. SP9 denied all these suggestions. Therefore, the defence applied to have a copy of his statement taken under s.112 of the CPC because they alleged he was lying. 25 [87] The DPP objected as it was a privileged document and I dismissed the application as there was simply no basis for it and could be “a **Note : Serial number will be used to verify the originality of this document via eFILING portal 62 fishing expedition”. Cross-examination is a process to test the witness’s veracity and truthfulness. Then it is for the Court to decide whether a witness is lying. We do not simply order the prosecution to give a witness’s s.112 CPC statement to the defence as it would set a dangerous precedent in future criminal trials. It is only if the 5 prosecution wants to impeach the credibility of a witness that the s.112 statement would be produced in Court. [88] In SP9’s cross-examination it was further suggested that he did not want his father to see his telephone (if the deceased returned it to his father instead) because there were videos of SP9 having sex 10 with underage girls or that SM would make a police report of him committing statutory rape. SP9 denied all these suggestions. There was no basis at all for these questions and I found that his credibility was not destroyed in his cross-examination (page 303). [89] Despite SP9 denying the telephone was important to him, the Court 15 found that it was and that was why they wanted to get it back. So he may have lied on its importance, but that did not mean he killed the deceased for it. I noted he was bigger in size than the rest of them in 2022, but he also admitted he was bigger than them in 2019. However, SP9 denied that he had fought with the deceased and 20 killed him that afternoon. At 4.00 pm he was getting ready to attend a tuition class and his father did send him there at 4.30 pm. He was nowhere near the deceased’s house at that time. In re-examiantion, SP9 explained to the Court that he lied to his father as he was afraid of him but he did not lie on anything when he gave evidence. In 25 regard to his demeanour, I had observed him as he gave evidence in Court. He was physically a big person in size but timid in nature. I found that he was a truthful and credible witness. **Note : Serial number will be used to verify the originality of this document via eFILING portal 63 [90] I now come to SP10’s evidence. He testified that he had been friends with CO1 and SP9 since they were in primary school. In January he befriended CO2 through Instagram and a month later, they became a couple. He introduced her to his friends. The Court heard his evidence about what transpired on the morning of 5.7.2019. He said 5 CO2 called CO1 on his telephone at 10.00 am to come to her house. SP10 did not agree to go there as he was afraid that her parents might tell his own parentCO1 had already booked a Grab car. They arrived at 10.45 am and he said that was the first time he had been to her house. 10 [91] I noted his evidence was similar to SP9’s except there were some slight variations on time (refer to pages 326 – 336 for his examination-in-chief). He also told the Court that while they were at Burmese Pool, CO1 had made a telephone call to the deceased and asked the latter to go there but the deceased declined as he had 15 some work to do. On Saturday he said he called CO2 and asked about her brother but she replied that he had gone out with his friends. He said he found out about the death of the deceased after the news broke out on Sunday 7.7.2019. But it must be borne in mind that on 5.7.2019 evening, the 3 of them had a conference call after 20 CO1 told SP9 that he had “finished off” the deceased. Therefore, I found that he already knew about it on 5.7.2019. [92] SP10 confirmed that CO1 had planned “untuk cederakan” the deceased while they were at Burmese Pool and it was not a concoction. He denied that he had sexual relations with CO2. He 25 said CO2 told him she was CO1’s “adik angkat” in March 2019. Then the deceased and his friends summoned SP10 to a room in their school as the deceased was unhappy when he came to know about **Note : Serial number will be used to verify the originality of this document via eFILING portal 64 this from her Instagram. SP10 was beaten up by the deceased and later his friend “rescued” him from there. His uncle came too. Therefore, when the deceased came home on 5.7.2019, SP10 was afraid he might see him at the house. However, he denied that he was angry, he was just scared of the deceased. The deceased 5 apparently had scolded and used vulgar words against SP9 on the phone after CO1 called him that morning after they left the house. He said SP9 did not reciprocate but he knew his friend was a bit angry when he was scolded by the deceased. He disagreed that SP9 had a problem with the deceased in school. He also disagreed that 10 he had made plans with SP9 and SP8 to take action against the deceased. [93] On the issue of the witnesses discussing with each other the DPP submitted that she had advised the witnesses not to discuss the case. She said there was no specific witness’ room at the Court 15 premises and there was no law that prohibited witnesses to sit together, it was merely a practice. I agreed with the DPP and noted the witnesses had been friends for some time and they all lived in Taiping all along. There was nothing to stop them for the past 3 years since the incident happened, to discuss about the case and “sync” 20 their answers. I asked SP9 whether they had discussed the case during lunch time on 25.5.2022. SP9 explained that they ate at McDonald’s but all of them were seated at separate tables and they were with their own fathers. They then gathered at the district library (near the Court complex) and walked back together to the Court. I 25 accepted his explanation that was given under oath. [94] The question is, does the Court believe they would concoct such a serious allegation against their good friends i.e the child offenders? **Note : Serial number will be used to verify the originality of this document via eFILING portal 65 What benefit would they receive by doing that? There was evidence that the 5 of them were actually good friends and they even had a dedicated WhatsApp group, despite the witnesses attempt to ‘downplay’ the fact that they were close friends (before the tragedy). The Court knew SP8 and SP9 tried to downplay this fact but that did 5 not mean they had lied throughout their evidence. It is the duty of the Court to sift through their testimony and decide which evidence is credible and which evidence is not: Dato’ Mokhtar Bin Hashim v PP [1983] 2 MLJ 232. The judge must assess the credibility of a witness by taking into account their motives, demeanour and 10 consistency under cross-examination. [95] In the end, I found that the allegations that the 3 witnesses had conspired against their clients were baseless having assessed their demeanour and evidence in Court. There were some inconsistencies in their testimonies which to my mind was normal 15 because different people have different capabilities; the inconsistencies proved that they were not conspiring nor concocting the evidence given by each of them. The inconsistencies were also not fatal to the prosecution case. I noted also that SP8’s evidence was not exactly the same as what SP9 told the Court later in his 20 evidence although some were similar. She was not asked by the DPP and the defence counsels about the WhatsApp conversation between her and SP9 on the morning of 6.7.2019. Nevertheless, having assessed the credibility of SP9 and found him to be a credible witness, there was no reason why the Court should not accept this 25 evidence just because SP8 was never asked about it. This showed that they had not conspired to give the same evidence in Court. **Note : Serial number will be used to verify the originality of this document via eFILING portal 66 There was nothing to stop the defence to re-call SP8 after SP9 had given this evidence but they never applied to re-call her. [96] It is necessary for me to go into SP12’s evidence at this stage because the defence disputed the fact of the discovery of the deceased’s remains on the morning of 7.7.2019. She was the eldest 5 sibling in the deceased’s family. Her brother went to school at SMK King Edward II. She knew that her brother and CO1 previously had fought a few times. She met CO1 on 3-4 occasions. On 7.7.2019 2 days after the disappearance of her brother, SP12 and her relatives were gathered at her house and they were talking about her missing 10 sibling. CO2 was not at home then as she was at her uncle’s house. [97] At about 11.00 am, her mother received a telephone call from a relative of CO1, whom she knew. They were told that her brother’s body was at the back of their house. Immediately SP12 went to search the area behind her neighbour’s house and saw a 15 “bungkusan plastik”. Inside was a grey-colored comforter which she recognised came from her house and the plastic wrapper was tied with a string. She cried upon seeing the plastic wrapper because she could see there was a body inside it. Her parents were also there. Her evidence was as follows (page 419 of the Notes of evidence): 20 Bagaimana kamu tahu orang yang berada dalam bungkusan plastik itu adalah adik kamu? Sebab saya received called daripada saudara Sharviin. Mereka bagi tahu adik lelaki saya di belakang rumah. Masa saya pergi tengok memang saiz bungkusan itu dalam saiz human being. Saya sudah tahu 25 itu adalah adik saya dan saya punya ibu pun ada buka plastik itu. Jadi, lepas kamu nampak, jerit, ibu bapa kamu datang, kamu ada pergi ke bungkusan atau bagaimana? Saya berdiri dekat dengan bungkusan itu. Yang buka itu adalah saya 30 punya mak. Masa mak saya buka, saya ada nampak muka adik saya. **Note : Serial number will be used to verify the originality of this document via eFILING portal 67 Buka bungkusan itu bagaimana? Bagaimana ibu buka bungkusan itu? On the bucu bungkusan itu ada ikatan tali. Jadi, mak saya buka ikatan tali itu. ... Tadi kamu ada sebut blanket kelabu dari rumah saya. 5 Bagaimana kamu dapat cam blanket yang membaluti adik adalah blanket daripada rumah kamu? Saya rasa saya pernah nampak blanket itu di rumah saya sebelum ini. 10 [98] The police had arrived by then and SP12 fainted upon seeing the deceased’s condition. When she came to about half an hour later, she saw the police was there and they had already sealed the place 15 where the deceased was found. SP12 told the Court that when her brother went missing, and his telephone had been switched off, she had contacted his friends and they had helped to look for the deceased in Taiping area. She said it was unlike her brother to switch off his telephone for such a long time and she became 20 worried. She went to the police station with her mother to lodge a police report on 6.7.2019 (P23). SP12 continued (at page 427): Kemudian? Kemudian, saya ada tanya saya punya adik perempuan saya CO2 tentang dia tahu apa-apa tentang adik saya. Lepas itu, sudah lama 25 kelamaan kita sudah rasa lagi takut. Lepas itu, kita terus sudah pergi ke IPD Taiping. Kenapa lama kelamaan kamu takut apa? Sebab adik lelaki saya sebelum kejadian ini 05.07.2019 itu, dia ada 30 called saya. Dia ada bagi tahu SP8, CO1 semua ada datang rumah saya. Itu adalah last called adik saya untuk saya. So, selepas kita sudah tahu dia sudah missing, saya sudah rasa takut yang SP8 dan CO1 ada buat sesuatu kepada adik lelaki saya. 35 **Note : Serial number will be used to verify the originality of this document via eFILING portal 68 [99] I admitted this evidence about what the deceased had told her as a relevant fact under s. 9 of the Evidence Act 1950. Then SP12 was asked the name of CO1’s relative who called to inform about the location of her brother. She said the person’s name was “Kanni”. In regard to the room in P13(11), she said it was the bedroom upstairs 5 which they shared and did not belong to anyone specifically. The room in the photograph P13(16) where the bloodstains were found, according to SP12, was a store room which was used to keep items used in her father’s wedding dais business. They usually used white, gold and red cloths and the cloths were kept in that room. SP12 said 10 she did not go into that room after her brother went missing. She was shown the photographs of the bloodstained cloths P13(21 -26) but she did not know what they were. But, SP12 confirmed that the stains on the wall in P13(17-18) did not exist prior to 5.7.2019. [100] SP12 was cross-examined about the presence of an elderly woman 15 in their household by the name of Govinthamal for the past 10 years. She told the Court that the woman was their domestic help who was present at home on the day that the deceased went missing. The woman did not inform her parents about what happened that day. In cross-examination by CO1’s counsel, she was challenged that Kanni 20 never made the call to her mother on 7.7.2019. SP12 disagreed. She said she had already known Kanni before the latter became a customer of her father’s business. [101] In regard to Govinthamal, SP12 stated that she was not sure if the woman was at home on 5.7.2019 when CO1 and his friends came 25 over. The helper’s duty were to clean the house and doing light chores, and she did not do their laundry or clean their bedrooms. According to her, Govinthamal had some mental problem and would **Note : Serial number will be used to verify the originality of this document via eFILING portal 69 always stay at their house as she did not have any family or friends. The woman was also a bit “senile”. Sometimes she would talk to herself as if some one else was there. At the time SP12 gave evidence in Court, the woman was still staying with them. Oddly, the cross-examination on this issue was mainly centered on the helper’s 5 mental state and that she would carry out whatever instructions given to her. Nevertheless, the Court accepted SP12’s evidence on this issue purely that the woman was at home when the youths came to the house on 5.7.2019. I noted further that they did not converse with her because she was in the kitchen doing some cooking or 10 housework. There was also evidence from SP14 (page 679) that: “Kita cuba untuk soal siasat dia tetapi dia macam tidak boleh bercakap dan tidak boleh bercerita. Kita tanya pun dia diam sahaja. Sebab itu saya cakap dia tidak dapat membantu pada siasatan kita. Usia pun sudah uzur. [102] SP12 told the Court that as far as she knew her brother did not have 15 any problem with SP9 and SP10. But she knew about his fight with CO1 because her brother shared it with her. She knew that her brother did not approve of their sister’s friendship with SP8. She thought the cause of the incident on 5.7.2019 was “revenge” on him and she did not know that SP9 came back to her house to retrieve 20 his telephone, but she knew someone had left a telephone there. She did not know if SP9 was angry because the deceased did not return his telephone. [103] During the continued trial on 24.2.2023, in cross-examination suddenly the defence produced a police report made by 25 Kanelakshumi A/P Asogan (SD3) dated 16.2.2023, the contents of which denied the version given by SP12 on the trial date 30.1.2023. SD3 had made the report pursuant to SP12’s earlier testimony **Note : Serial number will be used to verify the originality of this document via eFILING portal 70 where she had told the Court that “Kanni” who was CO1’s aunt had informed them in that telephone call on 7.7.2019 that “CO1 sudah bunuh adik saya”. The DPP objected to this document to be tendered as an exhibit because it was made only after SP12 had testified in Court. However, I allowed the report to be marked through 5 SD3 as D4; the report was allowed to be marked only because it was made but the Court did not at that time decide on the truth of its content. I will discuss this later under the defence case analysis. [104] On another matter, the evidence from SP2 was that he could only retrieve data from the telephones marked as K8, K9 and K11 10

whereas the other were unstable and he could not retrieve any data from these. He told the Court that there were 3 missed calls to the telephone K8 (Asus brand seized from CO1) on 10.7.2019 at 14.58 pm (after CO1 had been arrested by the police), on 12.7.2019 at 10.16 am and on 13.7.2019 at 11.07 am (refer to page 86 of the 15 Notes of Evidence). In my opinion, it did not matter that these calls were made to CO1’s telephone because it was already in the custody of the police. SP14 also testified that he had checked the telephone for further information such as contact list and if there were anyone else involved in the case. SP14 was handed a Vivo 20 telephone belonging to SP9 by his father on 8.7.2019 at 5.00 pm (marked as K2) but he could not retrieve any information from it. [105] Another important evidence was the deceased’s mobile telephone Xioami Redmi (identified by SP12, marked as K10 by SP14) was in fact seized on 10.7.2019 from the dresser in the house where CO1 25 lived with his grandmother. They tried to impute that SP9 had placed the telephone there after CO1 was arrested on 7.7.2019, but I found no basis to support this allegation by the defence. Santhi A/P Balan **Note : Serial number will be used to verify the originality of this document via eFILING portal 71 was not called to testify on this allegation; but the defence alleged she had knowledge about this when SP9 purportedly came to their house. SP14 had also denied this suggestion by the defence because it simply was not true and it never happened. Since this allegation was a fact especially within the knowledge of the defence, 5 the onus lies on the defence to prove his assertion: s.106 of the Evidence Act 1950. More importantly, SP9 was never cross-examined about this issue when he testified in Court! Although CO1 denied that he had led the police to recover the telephone, I found that his conduct of showing the deceased’s telephone that was kept 10 at his house was relevant under s.8 of the Evidence Act 1950. Therefore, this was also another strand in the evidence of the case which pointed towards CO1’s guilt in the commission of the murder against the deceased. [106] It is pertinent for me to touch on the admission by CO1 to SP9 that 15 he had finished off the deceased, and also that by CO2 to SP8 in the video call. In Abdul Azhim Mohammad v. PP [2023] 1 LNS 985, the Court of Appeal stated: “[26] The law on admission and confession are settled. Reference is made to section 17 of the Evidence Act 1950 that provides as follows: 20 “17. Admission and confession defined:

(1) 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

(2) 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 72 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 73 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:

34. 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 74 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 75 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 76 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; **Note : Serial number will be used to verify the originality of this document via eFILING portal 77 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 78 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 79 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; **Note : Serial number will be used to verify the originality of this document via eFILING portal 80 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; **Note : Serial number will be used to verify the originality of this document via eFILING portal 81 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 82 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 83 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. **Note : Serial number will be used to verify the originality of this document via eFILING portal 84 [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. **Note : Serial number will be used to verify the originality of this document via eFILING portal 85 [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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 86 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 87 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 88 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 89 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 90 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. **Note : Serial number will be used to verify the originality of this document via eFILING portal 91 [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 **Note : Serial number will be used to verify the originality of this document via eFILING portal 92 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 **Note : Serial number will be used to verify the originality of this document via eFILING portal