Yan Naing Soe v Public Prosecutor (J-05(M)-248-04/2018)

1 IN THE COURT OF APPEAL MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: J-05(M)-248-04/2018 BETWEEN YAN NAING SOE (Passport No: MA 842068) ...APPELLANT AND PUBLIC PROSECUTOR ...RESPONDENT [In the High Court of Malaya Criminal Trial MTJB No: 45B-04-03/2016 Between Public Prosecutor And Yan Naing Soe (Passport No: MA 842068)] _________________________________________________________ 2 CORAM BADARIAH SAHAMID, JCA ZABARIAH MOHD YUSOF, JCA LAU BEE LAN, JCA JUDGMENT [1] The appellant, who is of Myanmarese national was charged under section 302 of the Penal Code as follows: “Bahawa kamu pada 29.10.2015 di antara jam lebih kurang 12.00 pagi hingga 3.30 pagi, di kaki lima kedai No: 43-45, Jalan Kenanga 3, Taman Desa Cemerlang, Ulu Tiram, di dalam Daerah Johor Bahru, di dalam Negeri Johor Darul Ta’zim, telah membunuh Mang Suan Lian (No Pasport: M 494688), dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan.” [2] After a full trial, the learned trial Judge found that the prosecution had proven a prima facie case against the appellant and called for defence. After hearing the defence case, the learned trial Judge found that the defence failed to raise a reasonable doubt on the prosecution’s case and made a finding of guilt against the appellant as per charge. The appellant was convicted and sentenced to death by hanging as provided for under section 277 of the Criminal Procedure Code (CPC). [3] Aggrieved, the appellant appealed to the Court of Appeal, which is the appeal before us. After reading the written submissions and hearing 3 the oral submissions from both parties, unanimously, we found that there are no merits in the appeal. The appeal is therefore dismissed and the conviction and sentence imposed by the learned trial Judge is affirmed. [4] Herein below are our reasons for deciding so. BACKGROUND: [5] The factual matrix of the case was narrated by Aung Nay Lin (SP 4), Sa Sein Pan (SP 5) and So Moel Lwin (SP 7). We adopted a major part of the narration from what had been laid out by the learned trial Judge in his grounds. [6] It was on 28.10.2015 at about 7.30 p.m. when there was a birthday celebration for the appellant held at the workers’ hostel situated at No. 45A, Jalan Kenanga 3, Taman Desa Cemerlang, Ulu Tiram, Johor Bahru (the premise). The premise was a double storey shop lot. [7] There were about 10 people who gathered for the birthday celebration including SP 4, SP 5, SP 6, SP 7, Mang Suan Lian (the deceased), the appellant, Boel Lwin, Myong Khaing, Myong Naing and Zaw Win Min. [8] SP 4, SP 5, SP 6, SP 7, the appellant and the deceased were all friends. [9] At the birthday celebration, they all had alcohol until 12.00 a.m. On 29.10.2015 at 12.30 a.m., there was a verbal quarrel between SP 6 and SP 7. SP 6 and SP 7 said in their testimony that they only quarrelled for 4 about 10 minutes and there was no physical fight between them. During the quarrel, SP 4 decided to go to his bed which was located at the corner of the said hostel and slept. [10] When SP 6 and SP 7 were quarrelling, the deceased intervened and tried to stop them. The appellant also shouted at all of them and asked them not to quarrel as it was his birthday. [11] However, the deceased, all of a sudden reacted by punching the appellant on his face. SP 5 came and immediately held the deceased back to prevent any further fight from proceeding between the appellant and the deceased. The appellant did not, however retaliate. [12] SP 7 then suggested that they went home and at about 12.40 a.m., SP 5, SP 6 , SP 7 and the deceased proceeded to leave the premises to go back to their own hostel located at the factory where they worked. SP 5, SP 6 and the deceased lived in another hostel whereas SP 7 lived in the said hostel together with the appellant and several others. SP 7 said he followed SP 5, SP 6 and the deceased to go downstairs because SP 7 intended to sleep over at their place that night. [13] SP 5, SP 6 and SP 7 and the deceased proceeded downstairs. However as the deceased was closing the grill door to the staircase of the said hostel, the appellant ran down from the stairs and stabbed the deceased once on his left chest with a knife. The deceased was seen pressing on his wound with his hand and at the same time stumbled backwards before he collapsed near a pillar on the pavement of the adjacent shop to the said hostel. SP 5, SP 6 and SP 7 were there when 5 the stabbing occurred. However, as to what they saw is the subject of dispute by the defence, which we will address in this judgment. [14] SP 6 then shouted to the rest that the deceased got stabbed and ran to the deceased and held him in his arms. There was blood oozing out of the deceased’s chest and SP 6 removed the deceased’s shirt to cover the wound on his chest. SP 7 also went over to check on the deceased. [15] SP 4 who was sleeping, heard the commotion at about 12.50 a.m. got up and went downstairs and saw the deceased lying in SP 6’s arms. [16] In the mean time, SP 5 tried to apprehend the appellant but failed because the appellant pointed and waved the knife at him. The appellant then ran away while SP 5 immediately ran over to check on the deceased. [17] Subsequently, SP 1, SP 4, SP 5 and the deceased arrived at the emergency department of the Sultan Ismail Hospital at about 1.30 a.m. At about 2.10 a.m. the doctor informed SP 1 that they failed to save the deceased. SP 1 went to the police station to lodge a report on the death of the deceased. [18] Dr. Rohayu (SP 14), the pathologist confirmed that the deceased was brought in dead on 29.10.2019 at 3.30 a.m. to the mortuary. SP 14 had performed a post mortem and confirmed the cause of death was due to a stab wound to the pulmonary artery. 6 The issues raised by the appellant: [19] The petition of appeal raised the following issues and submitted that the learned trial Judge erred in fact and law in:

(ii) an abrasion along the spine in the upper third back of torso measuring 0.5 x 0.3 cm; and

(iii) an abrasion on the right elbow measuring 0.8 x 0.4 cm. [26] SP 14 also testified that the cause of such injury could be inflicted by a sharp object pointed at the end . She said examples of such sharp object would be a knife. When SP 14 was shown a knife as in exhibit P10B, which blade was about 0.1 cm wide, she said that it is possible such a knife to cause such injury to the deceased, as the wound was about 0.1 cm. [27] From the evidence of SP 14, the learned trial Judge found that it is sufficient to conclude that the deceased died due to the bodily injuries suffered and that the weapon that was used was likely exhibit P10B. We do not find any error on the part of the learned trial Judge in this respect. Whether the injuries were caused or was the result of the act of the appellant: [28] This is the gist of the issue which was raised by the defence where it was contended that the learned trial Judge failed to give judicial 10 appreciation to the defence of the appellant that it was not proven that it was the appellant that had caused the injuries to the deceased which led to his demise. [29] It was the appellant’s defence that when he went down the stairs together with SP 5, SP 6 , SP 7, the deceased and a few other friends, they were pushing and shuffling at each other, quarrelling and the situation was “kelam kabut” (chaotic). It was at that time that somebody shouted. When the appellant arrived downstairs, it was only then that the appellant saw the deceased holding his chest which was bloody. The appellant did not see any weapon as the stairs were dark as he claimed that the lights there were not functioning. [30] The defence claimed that from the photographs taken by the investigation officer, SP 16 of the crime scene, it is obvious that the lights at the stairs were not functioning. The photographs became clear due to the flash bulbs of the camera which took pictures of the area. This is the evidence that showed that the place where the stabbing happened was dark and it is difficult to see clearly. [31] The appellant said he saw Myo Naing ran and the appellant followed suit. He ran because the deceased was hurt and he was afraid. This was confirmed by the evidence of SP 4 who said that possibly Myo Naing ran away, but he was unsure. SP 4 said he saw somebody ran but did not know who was this person who ran. [32] The appellant was only caught on the next day at a coffee shop beside the hostel. 11 Whether the learned trial Judge failed to consider the evidence of the witnesses that the lighting at the crime scene was dark: [33] From the grounds of the learned trial Judge, it is his findings that the evidence of SP 5, SP 6 and SP 7 disclosed that on the fateful day at about 12.40 a.m, they and the deceased were going down the stairs about to leave the hostel to go home and they indulged in some conversations amongst themselves for about 10 minutes or so downstairs. SP 5 and SP 6 said in evidence that as the deceased was closing the grill door of the staircase to the said hostel, the appellant ran down from the stairs with a knife and stabbed the deceased on his left chest. SP 5 was about 4 to 5 feet away from the deceased and had witnessed the stabbing (refer to paragraph 48 of the grounds of judgment). [34] The learned trial Judge also accepted the evidence of SP 5 that he could identify the knife that was used for the stabbing because “right after the stabbing, SP 5 attempted to apprehend the appellant but failed as at that point in time the appellant was pointing and waving the knife at him”. This is the point in time when SP 5 could see the type of knife held by the appellant. Another reason why SP 5 could identify the knife was because he was the one who brought the knife to the said hostel because Myong Khaing had requested him to bring a sharp knife to cut chicken for the preparation of the meal for the birthday party as the knife at the hostel was not sharp enough for the purpose of cutting chicken. SP 5 said that at the hostel he had used the knife, P10(b) to cut and prepare the chicken for cooking. [35] From the evidence, the learned trial Judge had made findings that it was the appellant who had stabbed the deceased at the material time 12 and the weapon used was the knife, P10(b). The learned trial Judge had reproduced the relevant evidence of SP 5 to support his findings. He was not plainly wrong in making such conclusions based on the evidence by the witnesses. [36] As far as SP 6 is concerned, although he could not identify P10(b) with certainty as the knife that was used in the stabbing, nevertheless was sure that P10(b) is similar to the knife used by the appellant in stabbing the deceased. SP6 was not challenged in this respect during cross examination by the defence. [37] As far as SP 7 is concerned, he could not describe which part of the body the deceased was stabbed and the instrument that was used. However SP 7 was certain that it was the appellant who had stabbed the deceased. He accorded his reason to being unable to say for certain which part of the body that was stabbed was because the lighting on the stairs was slightly poor and that his view was slightly obstructed by the back of the deceased. However, SP 7 was certain that the appellant and the deceased were facing each other and were close to each other before the stabbing happened. [38] The learned trial Judge had also evaluated on the issue of the lighting at the stairs. It is his findings that although the testimonies of SP 5, SP 6 and SP 7 had agreed that the stairs area was not very well lit, nevertheless it was not in pitch darkness. Visibility was still possible and they could see each other reasonably well. There was also the evidence that there was also a source of light emanating from the stairs and the adjacent shops close by. The evidence of SP 1 was testimony to this (refer to paragraph 56 of the grounds). It was the conclusion of the learned trial 13 Judge that the scene was not pitch darkness and witnesses could see each other well. The identification of the appellant was without doubt as this is not a case of identifying strangers which called into operation the Turnbull principles, but witnesses who recognized each other as they were friends (refer to R v Turnbull [1976] 3 AER 549). Recognition is more reliable than identification. This distinction was set out by the Federal Court in Dato’ Mokhtar bin Hashim & Anor v PP [1983] 2 MLJ 232 when it said: “As regards all three witnesses it is important in my opinion to draw a distinction between recognition and identification. Recognition is more reliable than mere identification. Recognition of a person known to the witness would be more reliable than identification by a witness of a stranger….” [39] It is also the findings of the learned trial Judge that although SP 4, SP 5, SP 6 and SP 7 did consume alcohol on the material date during the birthday celebration, they were, however sober and their consumption of alcohol did not in any way impair their ability to think and act rationally at the time. This is evident when SP 4 saw the deceased lying in SP 6’s arms, SP 4 had called upon SP 1 for help. SP 6 and SP 7 immediately attended to the deceased after he was stabbed and SP 6 had removed the deceased’s shirt to cover the wound to prevent further bleeding from the chest, whilst SP 5 attempted to apprehend the appellant after the stabbing and later sent the deceased to the hospital together with SP 1 and SP 4. Clearly, the learned trial Judge was not wrong when he found from the aforesaid acts of SP 4, SP 5, SP 6 and SP 7 that they were all sober and rational at that point in time. Hence the learned trial Judge found that the evidence of SP 4, SP 5, SP 6 and SP 7 as to the events that transpired 14 before and after the stabbing to be credible (refer to paragraph 60 of the grounds). We do not find any error on the part of the learned trial Judge in arriving at such decision. [40] SP 14 could not ascertain that P10(b) was the knife that was used to cause the injury to the deceased. However from her evidence she said that the knife P10(b) could inflict the nature of the injury suffered by the deceased. Subsequently the knife was sent for analysis to SP 2, Pegawai Sains, Jabatan Kimia Malaysia who found that the bloodstains on the blade of the knife of P10(b) was that of the deceased. Given the aforesaid evidence, it was established that P10(b) was the knife used in causing the injury to the deceased. This corroborates the evidence of SP 5 as to the knife used by the appellant. [41] The learned trial Judge also referred to the evidence of SP 2 whereby SP 2 had analysed the clothes that were worn by the appellant on the night of the stabbing. The analysis revealed that bloodstains on the clothes of the appellant belonged to SP 7 and also to the deceased. The learned trial Judge did consider this piece of evidence and it is his findings that the presence of SP 7’s DNA on the singlet that the appellant wore merely indicated that SP 7 was present at the said place. After all, this fact was admitted by SP 7. [42] There was also the evidence of the presence of the deceased’s blood on the short pants (P10(h)(1)(b)) worn by the appellant which the learned trial Judge found that it lend support to the evidence of SP 5, SP 6 and SP 7 that the appellant had come into close contact with the deceased and had stabbed him. 15 [43] The evidence of the nail finger clippings taken from the deceased and sent to SP 2 for analysis show that the blood stain found on the left finger’s nail clipping of the deceased, to be that of a mixed DNA profile of the deceased and the appellant. The learned trial Judge found that this strengthened the prosecution’s evidence that it was the appellant who had stabbed the deceased, and negated the evidence of the appellant in his defence that he only came downstairs when he heard somebody shouted, and it was only then that the appellant saw the deceased holding his chest which was bloody. The presence of the mixed DNA of the deceased and the appellant on the nail clippings of the deceased indicates that the appellant must have been in close contact with the deceased at the time of the stabbing, or else how would one explain the presence of the appellant’s DNA on the nail clippings of the deceased. [44] The learned trial Judge had also considered the contention of the defence on the failure by the investigation officer to lift the fingerprints on a number of articles such as the handle of the knife, the grill door, the surrounding walls of the said place and the absence of DNA of the appellant on the knife, showed no link between the appellant and the knife. We agreed with the learned trial Judge’s findings that those were irrelevant considerations, given that there were direct evidence to connect the appellant to the commission of the act of stabbing. Forensic evidence are merely corroborative and the absence of it, is not fatal to the prosecution’s case, especially when there are direct evidence available. The prosecution is not relying on circumstantial evidence to prove the charge against the appellant. [45] Therefore, we found that the learned trial Judge did not err when he found that the prosecution had adduced sufficient evidence to prove 16 the third ingredient of the offence which warrants our appellant intervention. Whether the act by the appellant comes within the ambit of one or a combination of the limbs under section 300 PC: [46] The prosecution submitted that the act of the appellant was committed with the intention to inflict a particular bodily injury, namely the stab to the left chest of the deceased and so fell within the ambit of section 300 (c ) of the Penal Code. [47] The learned trial Judge had gone through Virsa Singh v State of Punjab [1991] SC 467 on the correct application of the law on the subject. (Refer to paragraph 74 of the grounds of the learned trial Judge). In order to bring the case under section 300, the prosecution must establish that:

(ii) nature of the injury purely on objective investigations;

(iii) there was intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended;

(iv) the injury of the type just described made up of three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 17 Once these 4 elements are established by the prosecution, the offence of murder under section 300 (c) is proved. It does not matter that there was no intention even to cause an injury of a kind that is sufficient in the ordinary course of nature. [48] After applying the principles as enunciated in Virsa Singh (supra) the learned trial Judge in paragraphs 75 and 76 had evaluated the evidence from the time the deceased punched the appellant in the said hostel until the appellant ran down the stairs with a knife and stabbed the deceased in his left chest. This followed from the confirmation by the prosecution witnesses SP 5, SP 6, SP 7 of the blood coming out from the stab wound on the deceased’s left chest. This, according to the learned trial Judge was sufficient evidence that the first requirement had been satisfied, that a bodily injury is present . [49] On the second and third requirement the learned trial Judge relied on the evidence of SP 14 as to the nature of the stab wound (refer to paragraph 77- 87 of the grounds). [50] Hence the learned trial Judge found that, given the evidence as aforesaid, the prosecution had proven that the appellant had the intention to inflict the injury and that the injury was sufficient to cause death in the ordinary course of nature under limb (c) to section 300 of the PC. 18 Whether there was error in law and fact when the learned trial Judge failed to consider that there were material factual contradictions in the evidence of SP 5, SP 6 and SP 7: [51] The defence alleged that there were discrepancies in the testimony of SP 5, SP 6 and SP 7. The learned trial Judge had considered their testimonies as to what transpired at the birthday celebration on 28.10.2015 from 7.30 pm to 12.00 am and subsequently during the time when they all went down the stairs 10 minutes just before the stabbing incident. The learned trial Judge found that any inconsistencies are minor and is not fatal to the prosecution’s case. [52] It was raised by the defence on the issue as to who brought the knife and there were discrepancies in evidence amongst the witnesses as to this. For this, the learned trial Judge had correctly pointed out that there was direct evidence from SP 5 who said that he brought the knife and that was the reason why he could identify the knife with certainty. It was also the finding of the learned trial Judge that whatever SP 6 said in his evidence regarding who brought the knife is not detrimental to the prosecution’s case. SP 6 did not see who brought the knife in the first place. [53] Ultimately, these alleged discrepancies did not in any way have any effect on the direct evidence which show that it was the appellant who had stabbed the deceased. (See Bharwada Bhoginbhai Hirjibhai [1983] AIR 753; Deepanraj a/l Subramaniam v PP [2014] MLJU 1755; Thangaraj a/l Manirajee v PP and other appeals [ 2014] 5 MLJ 507) 19 [54] In every case, there is bound to be contradictions between the testimonies of witnesses in any particular case. Being human they are not perfect and memories may lapse or one may view it from another angle. What should be of more concern is whether the contradiction is so material that would affect the basis of the case or in a criminal case, whether it is detrimental to the charge in question. Contradictions do play a role when there is no direct evidence to prove the charge. But in the present appeal before us, the thrust of the prosecution’s case was not constructed premised on circumstantial evidence but direct evidence from witnesses who saw the appellant stabbing the deceased. Whether the investigation of the case was complete: [55] The defence raised the issue that the investigation was incomplete because when SP 16 was re-examined by the learned DPP, SP 16 said that Myo Nino and Myo Sino had absconded. However these 2 names were never raised in the prosecution’s case. SP 4 - SP 7 were all present at the time of the incident, and they never mentioned these names at trial. The reason given by SP 16 that he was confused with the Myanmarese names as their names sounds alike, is not an excuse that should be accepted by the court as we are dealing with a capital offence affecting the appellant. [56] However the learned trial Judge had dealt with this issue at paragraphs 104 -106 in his grounds. As such these 2 individuals are not essential to the case of the prosecution. Hence there is no basis for saying that the investigation by the investigation officer was incomplete. 20 [57] In the present appeal the learned trial Judge had evaluated the testimonies of the relevant witnesses and the alleged contradictions and he had made findings that those contradictions are not material. We found no reason to disturb his findings in this respect. [58] From the grounds of the learned trial Judge, His Lordship had conducted a maximum evaluation of the evidence adduced by the prosecution and that the prosecution had established the elements of the charge for the offence of murder under section 302 of the Penal Code, if unrebutted would warrant a conviction. From the evaluation by the learned trial Judge we do not find any error when he accordingly held that the prosecution had established a prima facie case against the appellant under section 180 of the CPC and ordered the appellant to enter his defence. Whether the learned Judge failed to evaluate the defence of the appellant at the end of the defence case: [59] We found that the learned trial Judge had evaluated at great length the defence of the appellant (refer to pages 43 - 60 of the ROA Vol 1). His Lordship went through the evidence of SP 5 where it was contended by the appellant that SP 5’s view was obstructed by the deceased and hence he could not see that it was the appellant who had stabbed the deceased. The learned trial Judge, after evaluating the evidence, was satisfied that SP 5 had an unobstructed and clear view of the incident. The learned trial Judge also evaluated the evidence of SP 6 and SP 7 including the issue of visibility of the crime scene. 21 [60] The learned trial Judge had also considered the possibility of another person other than the appellant, who had stabbed the deceased, as contended by the appellant in his defence. It was his findings, after evaluation of the prosecution witnesses of SP 5, SP 6 and SP 7 that they had all positively identified the appellant as the assailant who had stabbed the deceased. The learned trial Judge had found that their evidence are credible. [61] The defence also raised the issue of the knife, P10(b) and questioned the origin of the knife. The appellant said he had never seen the knife and that it was not from his kitchen and no knife was required that day as the chicken was already cut when he brought it home to the hostel. Further the defence raised the issue that there was no trace of any DNA of the appellant on the handle of the knife and hence this does not provide a link of the appellant to the knife in question. The learned trial Judge had considered this issue at paragraphs 146 - 151 of his grounds. The learned trial Judge traced the evidence of SP 5 who said that he had brought the knife to the hostel. SP 6 in his testimony said that the knife was from his hostel but he cannot remember who had brought it. The evidence from the investigation officer confirmed this evidence from the investigations conducted by him. It was also in evidence that SP 5 saw the appellant come running down the stairs with the knife and he could identify the said knife as he was the one who had brought the knife to the premise. This was corroborated by the evidence of SP 2 who did the analysis of the bloodstains found on the knife which belonged to the deceased. The absence of fingerprint evidence or DNA of the appellant on the knife, walls and the place of the crime area is not fatal to the prosecution’s case, due to the presence of direct evidence from SP 5, SP 6 and SP 7 (refer to Ibe Godwin Uzochukwu v PP [2017] MLJU 202). 22 [62] The learned trial Judge also considered the submission of the defence on the male DNA profile matching that of blood specimen labelled So Moel Lwin (SP 7) which was found on the singlet of the deceased but not that of the appellant. Due to this the defence submitted that there was a gap in the prosecution’s case as there was a failure by the prosecution to explain why the DNA of SP 7 was found on the singlet of the deceased. It was also submitted that the prosecution failed to prove that the singlet belonged to the appellant and owned by him during the commission of the crime. This had been addressed by the learned trial Judge at paragraph 155, that at most this would indicate that SP 7 was present at the material time when the stabbing occurred. It does not prove that SP 7 was the one who stabbed the deceased. In any event SP 7 admitted that he was present at the time. [63] The defence also contended that the mere fact that a pair of short pants allegedly worn by the appellant during the commission of the crime, was found to contain the blood of the deceased does not necessarily link the appellant to the crime. However the learned trial Judge viewed it differently, namely, combining all the evidence with the evidence of the fingernail clippings taken from the deceased which contained a mixed DNA profile from the deceased and the appellant positively showed that the deceased and the appellant had come into close physical contact with each other. This, according to the learned trial Judge supported the evidence of the prosecution’s witnesses that it pointed to the fact that it was the appellant who stabbed the deceased. [64] It was also the submission by the defence that the appellant’s intervention in the physical fight that ensued between SP 6 and SP 7 and the deceased, accounted for the deceased’s fingernail contained the DNA 23 of the appellant. The appellant gave evidence that when he was trying to stop the fight between SP 6 and SP 7, the deceased had pulled his arm roughly. That was how the appellant’s DNA got into the fingernails of the deceased. [65] The defence also submitted that the abrasions on the deceased could also be attributable to the fact that the deceased had fallen down. This is consistent with evidence that the deceased fell after being stabbed. [66] Further it was submitted by the defence that Dr. Karen (SP 13) only took random nail clippings and not all 10 nail clippings from the 3 suspects for forensic analysis and admitted that this was not in compliance with the Standard Operating Procedure (SOP) that there existed a gap in the prosecution’s case. [67] We found that the learned trial Judge had considered all these issues raised by the defence and held that in light of the direct evidence that the appellant stabbed the deceased, any other evidence or forensic evidence are merely evidence having corroborative value. Given the circumstances of the case, the non-conformity of the so called SOP is not fatal to the case of the prosecution as there is no doubt to the fact as to who stabbed the deceased. [68] The learned trial Judge at the end of the defence case held that what is evident is that it is without doubt that the appellant had stabbed the deceased, from the direct evidence of SP 5, SP 6 and SP 7. The intention to commit murder had been proved as the learned trial Judge had analysed the evidence of the prosecution’s witnesses during the 24 course of the prosecution's case. The learned trial Judge therefore found no merit in the contentions by the defence. [69] It was submitted by the defence that the appellant did not run away but it was Myo Khaing and Myo Naing who had run. The police failed to locate Myo Khaing and Myo Naing and the prosecution did not call Myo Myo Khaing and Myo Naing as its witness. The defence submitted that the failure of the prosecution to call two witnesses, namely Myo Khaing and Myo Naing had resulted in the suppression of evidence by the prosecution which attracts the invocation of section 114 (g) of the Evidence Act 1950. The learned trial Judge had addressed this issue at the prosecution stage at paragraph 104 which reads as follows: “[104] The investigation officer, SP 16 initially said that both these persons had run away from the scene. However, upon re examination, SP 16 clarified that it was not these two persons who had run away but two others named Myo Mino and Myo Sino. SP 16 testified that pursuant to investigation, both Myo Khaing and Myo Naing had already left and returned to Myanmar.” Further it was explained by the Investigation Officer, SP 16 that he was not familiar with Myanmarese names and he was confused at first. However he explained that Myo Khaing and Myo Naing had not run away. They had just returned back to their country of origin. It was the appellant who ran away after the crime was committed. This was confirmed by the evidence of SP 5. The evidence of three prosecution’s witnesses to the crime had testified as to who committed the act of stabbing, hence there is no gap in the prosecution’s evidence. The presence of these 2 witnesses was not essential to the narration of the prosecution’s case to 25 support the charge against the appellant (refer to Abdullah Zawawi v PP [1985] 2 MLJ 16). Hence the suggestion by the defence to invoke section 114 (g) of the Evidence Act 1950 is misconceived. [70] Further these 2 names were never raised in the prosecution’s case. SP 4 - SP 7 were all present at the time of the incident, however they never mentioned these names at trial. CONCLUSION: [71] Having considered the evidence, the learned trial Judge found that the prosecution witnesses, SP 5, SP 6 and SP 7 had positively identified the appellant as the person who had stabbed the deceased. The learned trial Judge had conducted a maximum evaluation of the evidence of the prosecution’s witnesses and believed as to their credibility and subsequently made the order of calling for the defence. After considering the defence evidence, the learned trial Judge found that the defence failed to raise a reasonable doubt on the prosecution’s case. The learned trial Judge therefore found the appellant guilty and convicted him under section 302 of the Penal Code. [72] We found that the learned trial Judge did not err in fact or law in concluding that there is a prima facie case and calling for defence. His Lordship accordingly did not err when he found that the defence failed to raise a reasonable doubt. We do not find any appealable error in fact or law in the learned trial Judge making a finding of guilt against the appellant. 26 The decision of the learned trial Judge is correct. We therefore dismissed the appeal by the appellant and the conviction and sentence of the learned High Court Judge is affirmed. Signed by: Zabariah Mohd Yusof Judge Court of Appeal Putrajaya Date: 9.10.2019 COUNSEL: V. Saravanan for the Appellant [Messrs. Edmund, Saravanan & Babu] TPR Dato’ Mohd Dusuki bin Mokhtar for the Respondent [Attorney General’s Chambers]