Yasir bin Esah v Pendakwa Raya (NO: S-05(M) 84-02/2017)

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) COURT OF APPEAL CRIMINAL APPEAL NO: S-05(M) 84-02/2017 (HIGH COURT IN SANDAKAN CRIMINAL APPEAL NO: SDK-45B-5/10-2014) BETWEEN YASIR BIN ESAH … PERAYU AND PENDAKWA RAYA … RESPONDEN …………………………………………………………………………………… IN THE HIGH COURT IN SABAH AND SARAWAK AT SANDAKAN Sandakan Criminal Trial No : SDK-45B-5/10-2014 CORAM Idrus bin Harun, JCA Zaleha binti Yusof, JCA Rhodzariah binti Bujang, JCA 2 JUDGMENT [1] This is an appeal against the decision of the learned Judicial Commissioner (JC) of the High Court at Sandakan who had on 27 January 2017 found the appellant guilty of a charge under section 302 of the Penal Code and sentenced him to death by hanging by the neck till death. [2] The appellant (the accused) was charged with the murder of his co-worker, one Bong Bong (the deceased). The charge reads as follows: “That you on 22 July 2013 at about 2.00pm at Block 07F, Peringkat 3, Ladang Amalania, Jalan Jeroco, the district of Kinabatangan, in the State of Sabah, did commit murder by causing the death of one, BONG BONG (a female, race Bugis) and that you have thereby committed an offence punishable under Section 302 of the Penal Code.” [3] In her report and evidence, the forensic pathologist, PW9 testified that the cause of death of the deceased was due to head injury. From the injuries sustained by the deceased, she concluded that the object used was blunt and heavy like the two bigger rocks found at the place where the deceased’s body was found. 3 [4] The prosecution relied on circumstantial evidence as there was no direct evidence or eye witness that the accused was the one who inflicted the injuries that caused the death of the deceased. However there was evidence that the accused was last seen with the deceased on a motorcycle. [5] The accused and the deceased were both workers of Ladang Amalania Koko Bhd (Ladang Amalania) of which phase 3 of the plantation had an area of about 890 hectares. Two days after the deceased was found missing, PW1, the auxiliary police working as security at Ladang Amalania, together with 200 workers proceeded to search the plantation to look for the deceased but failed to find her. [6] The accused was taken to PW3’s office by PW1, upon receiving information that the accused was last seen with the deceased on the motorcycle. PW3 was the head of the Auxiliary Police Unit There. In his evidence, PW3 said that the accused told him that he had killed the deceased because earlier on the accused was allegedly beaten up by three men purportedly upon the instruction of the deceased due to the accused’s failure to pay RM50.00 which the accused owed the deceased. The accused also informed PW3 that he could show the place where he 4 killed the deceased. All these evidence can be found in the notes of the proceedings at pages 51 to 53 Volume 2 of the Record of Appeal. [7] Based on this admission of the accused, the police was called by PW3. When the police team led by PW8, the investigation officer (I.O) arrived at PW3’s office, the accused was arrested. Later the accused led the I.O and the police team to the crime scene where the deceased body was found. [8] Based on those evidence, and upon its maximum evaluation the learned JC was satisfied that the prosecution had established a prima facie case. This can clearly be seen especially in paragraphs 20, 21, 22, 23 and 53 of the learned JC’s grounds of judgment as follows: “20. I have read and considered the evidence of the prosecution’s witnesses namely PW1, PW3 and PW8, it is my view there was strong circumstantial evidence to connect the accused to the death of the deceased. The accused was seen by some of the workers to be with the deceased on a motorcycle before it was reported the deceased went missing. The accused was therefore the last person seen with the deceased. It was also based on this information that the accused was traced by mandor Jiman who had brought him to PW1. The accused had made statements to PW3 and PW8 that he owed the deceased the sum of RM50.00 and that he was allegedly beaten up 5 by 3 persons for not settling his debt. The accused therefore had the motive to kill the deceased. The evidence also showed that the accused had confessed to PW3 on the killing of the deceased. The evidence also showed that the accused had told PW8 that he could show where he had left the body of the deceased. It was in pursuance of this information given by the accused to PW8 that the body of the deceased was found. The accused had brought the police to the exact area where he had left the deceased and discovered the body within 30 minutes also of reaching the place. Whereas 200 workers were unable to locate the deceased despite 4 hours of search and a second search.

21. The defence did not challenge or submit on the credibility of any of the prosecution witnesses which would raise or cast any doubt on their evidence or on the truth or the veracity of what they had said in court. As expected there are usually discrepancies found in the testimony of a witness. However, it would be wrong to say that just because a witness may have contradictions in his evidence or even told a lie on one or two points that his evidence should be totally rejected: Lee Ah Seng & Anor v Public Prosecutor [2007] 5 CLJ

1.

22. Based on the evidence before the court, I am satisfied that the combined strength of each strand of evidence when twisted together to make a rope was sufficient and strong enough to sustain the finding that the accused had inflicted the injuries on the deceased which caused her death. The cumulative evidence irresistibly pointed to the one and only conclusion that it was the 6 accused who had caused the injuries to the deceased resulting in her death: Chan Chwen Kong v Public Prosecutor [1962] 1 LNS 22, Idris v Public Prosecutor [1960] 1 LNS 40, Kow Liang Tiang v Public Prosecutor [2011] 9 CLJ 172.

23. But the prosecution had also relied on the confession made by the accused to PW3 at the latter’s office at Ladang Timora. There was also the subsequent conduct of the accused in showing to the police the place where the deceased was found. The prosecution also submitted the accused had given information to PW8 where he had brought and left the deceased. The prosecution had referred to s 17, s 8 and s 27 of the Evidence Act (EA). ………………………………………………………………………………………. ………………………………………………………………………………………. ………………………………………………………………………………………..

53. Based on circumstantial evidence, the accused’s confession that he had killed the deceased, the accused’s information that he could show to the police where he had left the deceased and the accused subsequent conduct in showing where the accused had left the deceased and having subjected the same on a maximum evaluation it is my view the prosecution had made out a prima facie case against the accused on the charge of murder, I therefore called upon the accused to enter on his defence”. [9] Accordingly the learned JC called for the defence of the accused. The accused however elected to give an unsworn statement from the 7 dock. The unsworn statement was reproduced in paragraph 58 of his grounds of judgment as follows: “58. The unsworn statement of the accused read as follows:

1. Saya bekerja sebagai tukang tambak sawit di Peringkat 1 Ladang Alamania, Kinabatangan sejak tahun 2009/2010. Saya bekerja sebagai tukang tambak sawit dan tidak mempunyai gaji tetap, lebih kurang RM500-RM600 sebulan.

2. Saya kenal dengan mangsa yakni Mak Cik Bong Bong sebab Mak Cik Bong Bong juga tinggal di Ladang Alamania. Saya selalu ambil barang-barang dari Mak Cik Bong Bong seperti mi maggi, biskut, rokok dan saya akan bayar kemudian. Bukan saya seorang saja yang mengambil barang dari Mak Cik Bong Bong.

3. Perkara yang saya boleh ingat tarikh 21.7.2013 ialah saya habis kerja di Peringkat 1 lebih kurang 2 petang. Saya tunggu lori yang saya biasa naik untuk balik ke rumah saya di Peringkat 3.

4. Waktu itu, Mak Cik Bong Bong ada di Peringkat 1, dan bila nampak saya, dia marah-marah saya dan tagih dari saya hutang saya RM50.00. 8

5. Saya tunggu lori tidak sampai-sampai. Saya pinjam motor kawan saya nama Binar. Mak Cik Bong Bong waktu itu ada di sana dan dia juga mahu tumpang balik ke Peringkat 1.

6. Sewaktu perjalanan, saya panas hati dan rasa marah sebab Mak Cik Bong Bong masih lagi marah-marah saya waktu dia membonceng motor yang saya bawa. Saya teringat peristiwa Mak Cik Bong Bong marah saya pada pagi itu dan menagih hutang dia dari saya. Dia juga ada cakap yang saya ni ‘binatang’ dan ‘suluk’.

7. Selepas itu, saya masuk satu simpang dan masuk ke dalam ladang kelapa sawit. Saya berhenti di tepi sungai. Saya tolak Mak Cik Bong Bong ke tanah. Saya tidak ingat sama ada saya ada tendang Mak Cik Bong Bong atau tidak.

8. Dalam kemarahan, saya ingat saya tolak dia dan mungkin saya ada pukul dia guna tangan. Lepas itu saya tinggalkan dia di sana dan waktu itu saya masih dengar suara dia seperti berbisik-bisik.

9. Lepas itu, saya ambil kawan saya Binar di Peringkat 1. Saya pergi ke kedai bersama Binar untuk membeli tiub motor. Saya hantar Binar pulang dan saya pun pulang juga ke rumah saya dengan menaiki motor yang saya pinjam dari Binar. 9

10. Seingat saya, sudah berlalu satu atau dua hari baru orang Peringkat 1 kecoh sebab mencari Mak Cik Bong Bong yang dikatakan hilang.

11. Saya beritahu ayah saya yang saya ada membawa Mak Cik Bong Bong ke Peringkat 3. Ayah saya memanggil Mandur Jiman dan Mandur Jiman menyuruh saya untuk menyerah diri.

12. Selepas itu saya di bawa ke Pejabat Ladang Alamania. Kemudian sepasukan polis datang ke pejabat. Saya menceritakan apa yang terjadi kepada seorang anggota ASP Amir dan saya yang membawa ASP Amir dan orang-orang beliau ke tempat di mana saya bawa Mak Cik Bong Bong.

13. Ketika sampai ke tempat itu, saya lihat kedudukan Mak Cik Bong Bong sudah berubah.

14. Seingat saya, saya hanya memberitahu perkara mengenai saya membawa Mak Cik Bong Bong ke Peringkat 3 kepada 3 orang sahaja iaitu ayah saya, Mandur Jiman dan ASP Amir.

15. Saya tidak membuat sebarang tindakan yang boleh menyebabkan kematian Mak Cik Bong Bong. Seingat saya, saya hanya menolak dia dan mungkin ada memukul dia menggunakan tangan saya. Dan ketika saya tinggalkan dia di tempat itu, saya masih boleh mendengar suara Mak Cik Bong Bong seperti berbisik-bisik. 10

16. Saya memohon agar Mahkamah menerima kenyataan ini dari saya. Terima kasih.” [10] The learned JC marked the unsworn statement as exhibit ‘DI’. After quoting some authorities on the law relating to the weight to be attached to the unsworn statement from the dock, the learned JC reminded himself that “even if I do not believe the statement of the accused, I should acquit him if his statement raise a doubt on the case of the prosecution”. Having read DI, and there was no other witness called by the defence, the learned JC found that some of the statement had in fact corroborated the prosecution’s evidence. The following was the learned JC’s findings: “70. Having read D1, I find that some of his statement had in fact corroborated the prosecution’s evidence. The accused’s statement in paragraph 2 of D1 corroborated the evidence of PW8 where the accused said he purchased goods from the deceased on credit basis. Paragraph 4 D1 also corroborated PW8’s evidence on the accused owing the deceased RM50 and the accused was angry with the deceased when asked to pay.

71. Paragraph 5 D1 corroborated PW3 and PW8 evidence in court that the workers saw the accused together with the deceased on a motorcycle. 11

72. Paragraphs 7 and 8 of D1 also corroborated the evidence of PW3 and PW8 that he had brought the deceased to a place and after beating her had left her there.

73. Paragraph 11 of D1 also corroborated the evidence of PW1 who was directed by PW3 to inform mandor Jiman to look for the accused. It was mandor Jiman who subsequently brought the accused to PW1 and later to PW3.

74. Paragraph 12 of D1 corroborated the evidence of PW8 that the accused had agreed to bring the police to place where he had brought the deceased”. [11] We must note here that “Mandor Jiman” was the appellant’s immediate superior. [12] At the end, the learned JC found the appellant had failed to create any reasonable doubt on the prosecution’s case. Hence, the appellant was accordingly convicted for murder. GROUNDS OF APPEAL [13] Before us, the accused, in his counsel’s written submission, had relied on the following four grounds for his appeal: 12 “(a) the trial judge erred in law and in fact when his Lordship failed to apply correctly the test for circumstantial evidence;

(ii) It was the accused who led to the discovery of the deceased body;

(iii) the accused had before his arrest, confessed to PW3 that he had killed the deceased. 17 [22] The Federal Court in Sunny Ang v Public Prosecutor [1966] 2 MLJ 195 had held that one of the points about circumstantial evidence is its cumulative effect. It is the total effect of them, not merely each one in itself, but altogether. Learned counsel for the accused in this instant appeal was harping on the fact that there was no finger prints and weapons that could link the accused to the death of the deceased and that no DNA evidence when there were strands of hair found in the deceased’s palm. But our view was those were the very reasons why this case had to rely on circumstantial evidence. The absence of the accused’s finger prints and the absence of weapon alone do not make him free of guilt if other evidence points otherwise. [23] First, there was evidence that the accused was the last person seen with the deceased. In his unsworn written statement he even admitted that while taking the deceased as pillion rider on his motorcycle, he was feeling very angry towards the deceased as the deceased kept on scolding him for not paying the money he owed her. [24] There was also evidence that earlier searches done by 100 – 200 workers, to find the deceased was to no avail; but the accused could straight away show where the deceased body was. This was confirmed by PW8 the I.O, in his evidence and we found there was no reason for the 18 I.O to tell lies or to implicate the accused. We therefore agree with the learned JC when he found as follows: “The defence had not challenged this piece of evidence during cross examination. The contention that PW3 already knew of the location where the body of the deceased is without basis because it was from the information of the accused that the police was able to reach the location where the accused had left the deceased and further the police had discovered the body within 30 minutes due to the direction of the accused (QA288 p82 NOP). Unlike the 2 searches done earlier where PW1 and the estate’s workers had failed to find the deceased despite 4 hours of search and a second search. It was the accused who had pointed to the police at the exact place where he had left the deceased which was discovered, as such the same is admissible as conduct, as provided for under s. 8 of the EA”. [25] Section 8 of the EA inter alia reads as follows: “8(1)…

(2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. 19 Explanation 1 – The word “conduct” in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2 – When the conduct of any person is relevant any statement made to him or in his presence and hearing which affects his conduct is relevant.” [26] The Federal Court in Pathmanabhan Nalliannen v P.P & Other Appeals [2017] 4 CLJ 137, when discussing the issue of conduct under section 8 of the EA had held as follows: “[128] That conduct of pointing to the places where the items were discovered by the second and fourth accused persons, which was subsequent to an offence, falls squarely within the ambit of “the conduct of any person an offence against whom is the subject of any proceeding” [129] As held by the Court of Appeal, we hold that the conduct of pointing to the places where the items were found is relevant and admissible (Prakash Chand v State AIR 1979 SC 400). Chinnappa Reddy J said at p. 404: The evidence of the circumstances, simpliciter, that an accused person led a Police Officer and pointed out the place where stolen 20 articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of section 27 of the Evidence Act … [130] The conduct of the second and fourth accused persons is consistent with them knowing of the places where the items connected to the crime of murder were disposed of. This view is consistent with the view held by the learned trial judge where he said: The only inference that I could make on the conduct of the second and fourth accused in providing the information in this case was that they were in possession of the items found and had tried to destroy and conceal these items by scattering and leaving them at various places. [131] We are also satisfied that the act of pointing by the second and fourth accused persons at the spots where items connected to the murder were found is admissible as conduct, as provided for under s. 8 of the EA.” [27] Applying the above to our instant appeal, we were of the view that the conduct of the accused, in leading the police to where the deceased body was found was consistent with him knowing the place where the 21 murder was committed. Like in Pathmanabhan’s case, supra, this is admissible as conduct under s. 8 of the EA. [28] Not only that, we opined, this evidence was also admissible under section 27 of the EA. Section 27 of the EA read as follows: “How much information received from accused may be proved.

(1) When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved” [29] It cannot be denied that at that time, the accused was already accused of committing the murder of the deceased and he was already in the custody of PW8 (arrested) and the body of the deceased was discovered in consequence of the information given by the accused. Hence the ingredients of section 27 of the EA were satisfied. [30] Even before he was arrested by PW8, the accused had told PW3 that he had killed the deceased. Learned counsel for the accused took issue on this as PW3 was not a police officer above the rank of Inspector 22 and it was not recorded. However, the prosecution relied on section 17 of the EA. Section 17 of the EA provides as follows: “17(1) An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.

(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.

(3) Subsection (2) shall have no application in Sarawak.” [31] Learned counsel for the accused submitted that the learned trial judge had disregarded the fact that section 17 of the EA is subject to section 25, which states that no confession made to a police officer who is below the rank of Inspector by the accused shall be proved against him. With due respect, we cannot agree with this argument. In Ho Sek Kong v Public Prosecutor [2011] 5 MLJ 359, the appellant had disclosed to his sister’s boyfriend, PW4, that he had committed the murder of the deceased. During that time, apart from the appellant and PW4, there was nobody else in the house. The trial judge had accepted the appellant’s statement to PW4 as a confession under section 17 (2) of the EA. The appellant was found guilty by the trial judge and on appeal, this Court had held that the trial judge was entitled to arrive at this finding that PW4 was a credible witness and that the appellant’s statement to PW4 that he had 23 committed the murder was a very important piece of evidence and was pivotal in the determination of the guilt or innocence of the appellant. This Court further held that the trial judge was right in admitting this statement as a confession made voluntarily by the appellant and that the accused may be convicted solely on the strength of his confession. [32] Ho Sek Kong’s case, supra, clearly shows that confession under section 17 of the EA need not be made to a police officer of the rank of Inspector and above. It can be made to anybody, as long as it is done voluntarily. In our instant appeal, there was no evidence that the accused had been forced or induced to make such a confession. He was not even arrested at that point of time. We found no reason to disagree with the learned JC’s finding on this. Confession need not be in written form only. It can be done orally and it can also be by conduct. See: Adenan bin Haron v Public Prosecutor [2015] 2 MLJ 281. The instant appeal can also be distinguished from the case of P.P v Lee Kim Seng [2013] 1 CLJ 393 referred to by learned counsel in his written submission because in Lee Kim Seng, supra, the so called confession was made to police officers after the accused was arrested, which was not the case here. [33] The pathologist, PW9, had identified 18 injuries which were severe mostly on the head of the deceased. According to her, based on the 24 multiple lacerations on the head and the face, with underline skull fractures and facial bone fracture, which were most likely fatal in nature, the cause of death was due to head injuries. She even said that due to the severity, even with immediate first aid treatment would highly unlikely to save the deceased. This can be seen from the following Question and Answer during cross examination by the accused’s learned counsel: “Q429 When the DPP asked you whether the injuries found on the body is sufficient in the ordinary cause of nature caused the death of the victim, your answer is most likely. So most likely these injuries are sufficient to cause death. Would immediate first aid or emergency treatment be able to save the victim from a death? A Highly unlikely. The reason why the head injuries sustained by the deceased most likely fatal in nature because of the severity of the skull fracture. The location of the skull fracture is at the place where the control centre for the heart and respiration. It is very severe.” [34] Based on the severity of injuries we were satisfied that the element of intention was there to be inferred. The motive to kill her was there. The accused owed the deceased RM50 and he was angry, he admitted it, as she asked for payment and called him derogating names. He even admitted of hitting the deceased and left her after taking the deceased to 25 a secluded area near to a river within the plantation where the deceased body was found two days later. [35] On the strands of hair, E18a, the Chemist Report merely stated that no DNA profile was developed from it. It never suggested that the hair belonged to an unknown person. Even PW9 who listed the specimens which she collected which included the hair, was not cross-examined on this. We also agreed with the learned JC that the absence of finger prints could also be due to the fact that since the body had been left there for two days, rain or moisture could have washed any such trace. [36] As alluded earlier, the accused had opted to give unsworn statement in his defence, which is clearly not subject to examination and had not called any other witness. Of course this is his substantive right to make such an option. But he did this at his own peril and what he said did not entitled him to the same weight as sworn testimony. (See: Federal Court in Siew Yo Ke Meng v P.P, RJ 05-135-2011). It is trite that a trial judge will not give much weight to what an accused has said in his unsworn statement as he is not subject to cross examination by the prosecution nor can he be questioned by the trial judge. See: Dato’ Seri Anwar Ibrahim v P.P & Another Appeal [2015] 2 CLJ 145. 26 [37] We found the learned JC had applied the correct principle in assessing the accused’s unsworn statement. The following was the exact words used by His Lordship in his grounds of judgment: “Bearing in mind that the unsworn statement of an accused cannot be equated with sworn testimony but must be given such weight as the court thinks fit, I shall consider whether the statement of the accused in the instant case raises a reasonable doubt on the case for the prosecution. I remind myself that even if I do not believe the statement of the accused, I should acquit him if the statement raises a doubt on the case of the prosecution.” The learned JC had analysed the unsworn statement of the accused as stated in paragraph 10 above, before making his decision. CONCLUSION [38] We have carefully linked all the evidence on record and we cannot but agree with the learned JC that the cumulative strength of the circumstantial evidence points to the accused as the person who had killed the deceased. To quote Suriyadi FCJ in Azilah’s case, again, if direct evidence is insisted under all circumstances, a successful prosecution of vicious criminals, who have committed heinous crimes in secret or secluded places, would be near impossible. After all in Sunny 27 Ang’s case, the accused was found guilty even though the deceased body was never found. [39] We therefore found no merit in this appeal. The appeal was therefore dismissed. The High Court decision was affirmed. Dated: 17 January 2019 (ZALEHA BINTI YUSOF) Judge Court of Appeal Malaysia Counsels/Solicitors: KEN YONG (Tetuan Ken Yong & Co) Block B3, Lot 3, 1st Floor, Bandar Labuk Jaya, Mile 7 90000 Sandakan SABAH. For the Respondent: DPP AHMAD SAZILEE BIN ABDUL KHAIRI Jabatan Peguam Negara, No. 45, Persiaran Perdana, Precinct 4, 62100 PUTRAJAYA.