(ii) The learned trial judge had not adequately considered the defence posited by the appellant. Our Decision Ground (i) – no prima facie case [52] Learned counsel submitted that there were no eye witnesses who saw that it was the appellant who had inflicted the fatal wound/wounds on the deceased and the learned trial judge had hence relied heavily on the deceased‟s dying declaration given to PW-6. [53] Learned counsel further submitted that the evidence of the investigating officer, PW-11, revealed that the deceased‟s dying declaration made to PW-6 was reduced into writing vide PW-6‟s statement under s.112 of the CPC. PW-10‟s testimony that he heard the deceased‟s dying declaration was also reduced into writing under the same law. However, 17 the s.112 statements of both PW-6 and PW-10 were not tendered in evidence in Court. [54] Hence, learned counsel submitted that the dying declaration as narrated orally in court by PW-6 and PW-10 were not admissible in evidence as it violates the legal requirement that the said dying declaration which was reduced into writing must also be produced. In addition, it is the best evidence available. [55] According to learned counsel, such written statement is required in order to ascertain the actual words uttered by the deceased and to corroborate the evidence of PW-6 and PW-10. Also, such written statement would have carried more weight given that it would have been contemporaneous. The failure by the prosecution to produce the s.112 statements of both PW-6 and PW-10 was fatal. Learned counsel relied on Toh Lai Heng v PP [1961] 27 MLJ 53 to support his proposition. [56] In addition, it was submitted that PW-6 was not sure whether the appellant was holding a parang when he saw him near house No. 25 that 18 wee hours of the morning. And, PW-6 also did inform PW-11 that the appellant was there. [57] Learned counsel further submitted that at that time there were 3 other persons named „Yosep or Yusof‟ working in the estate but PW-11 had failed to investigate any of these 3 persons. [58] In regard to the aforesaid submission by learned counsel, the learned trial judge found as follows, at pp. 34, 35 of Jilid 1, RR: “[39] As regards the argument that the failure to tender the s.112 statements of PW6 and PW10 was fatal to the case for the prosecution, with respect, this is misconceived. As I have already stated, the authorities are clear that a dying declaration, especially when spoken to witnesses at the scene of the attack, need not be proved by writing. In the Ray Solis case, supra a witness, PW9, testified that the deceased was a tenant of a room at the ground floor of her house. PW9, who lived on the upper floor, upon hearing a cry for help, went down the stairs and saw the deceased holding his right chest and was covered with blood. At the point the deceased told her that „Ray‟ had stabbed him and needed help to go to the clinic. The Court of Appeal held that it was not shown why or on what reasonable basis PW9‟s testimony on the dying statement that the deceased had made to her ought to have been disregarded by the learned trial judge. The trial judge had held her to be a reliable and consistent witness without any predisposed grudge or ill will against the appellant. Hence, the trial judge had not misdirected himself in law or on the facts in placing reliance on the dying statement made by the deceased to PW9 on the person that had inflicted his injuries. In my view, it was clear that the learned trial judge had relied on the oral evidence of PW9 on the dying 19 declaration to find the accused guilty and the conviction was affirmed by the Court of Appeal. [40] Similarly in our present case. Despite the rigorous cross-examination, PW6 and PW10 maintained that the deceased uttered the name „Yosep‟ upon being asked by PW6, “Siapa potong kamu?” They maintained that the deceased was lucid and spoke clearly at that time. The evidence of PW6 and PW10 on this matter was consistent throughout the trial. Furthermore, it had not been shown that they harboured any grudges against the accused who they said was a fellow worker in the estate and of the same nationality. Hence, I accepted their evidence that the deceased had made the dying declaration to PW6 that it was Yosep that had inflicted his injuries. Not only did his statement identify Yosep as the person that had inflicted the injuries, but also, the „transaction‟ or slashing that led to the injuries that subsequently resulted in the death of the deceased as PW7 had testified.” [59] We were entirely in agreement with the learned trial judge that there is nothing in law to suggest that the dying declaration must to be reduced into writing as a pre-condition of its admissibility. Rose CJ at pp. 53, 54 of Toh Lai Heng (supra) stated in very clear terms: “It is no doubt true that a dying declaration need not be proved by writing at all; and there may be cases where eye witnesses at the scene of an attack, or persons arriving shortly thereafter, may hear the last words spoken by a dying man and their recollection of those words will properly be received in evidence. In practice, of course, such a witness would be required to give the exact words spoken by the deceased and, so far as they are relevant, any words spoken to the deceased by the witness himself”. [60] The Singapore Court of Criminal Appeal also stated as such in Ong Her Hock v PP [1987] 2 MLJ at p.46: 20 “In our opinion, while it is settled law that „if a dying declaration is reduced to writing – and this would invariably be the case in the event of the witness in question being an investigating Police Office, Magistrate or someone of that kind – the actual words of the deceased must be recorded,‟ the recollection of the last words spoken by a dying man by a witness who is at the scene or arrives shortly thereafter and hears a dying declaration may properly be received in evidence (see Toh Lai Heng v Regina (1) page 54). In the present case the witnessed gave evidence of their recollection of the last words spoken by the deceased and their evidence was in our judgment properly admitted”. [61] Hence, what matters were the last words exactly spoken by the deceased to the witness or witnesses. It need not be proved in writing. In the case presently before us, both PW-6 and PW-10 had given clear evidence that the deceased had answered „Yosep‟ when asked by PW-6, „Siapa potong kamu?‟. Apparently they had given evidence of the exact words spoken by the deceased. Although the deceased was walking unsteadily and clasping his bleeding chest, nevertheless both PW-6 and PW-10, who were between 2 to 3 feet away from the deceased were very certain that the deceased had made the statement in answer to PW-6‟s questioning. There was nothing in the evidence that the deceased, as he was, might have been imagining things or was suffering from delusion due to loss of blood. More importantly, it has not been shown to us on what basis the evidence of PW-6 and PW-10 relating to the same ought to have been disregarded by the learned trial judge. The Court had found that PW- 6 and PW-10 were reliable witnesses and there was nothing in the evidence to suggest that the hearing of PW-6 and PW-10 were impaired at 21 the material time. In our judgment, the evidence of PW-6 and PW-10 pertaining to the dying declaration made by the deceased was properly admitted in evidence. [62] On learned counsel‟s contention of want of corroboration on account of the prosecution‟s failure to produce the s.112 statements of both PW-6 and PW-10, we would reiterate that this Court‟s pronouncement in respect of the same in Ray Solis v PP [2015] 3 CLJ 215, represents the correct proposition of the law. At pp. 228 – 230, the Court stated: “[52] It is also the law here that such a dying declaration or statement need not be corroborated by some other evidence. The same learned commentator in Evidence: Practice and Procedure above cited, goes on at p. 335 to state: A dying declaration does not need corroboration. In Nembhard v R [1982] 1 AER 183, the Privy Council rejected an argument that a dying declaration must be corroborated if it is to be relied on. In State Of Uttar Pradesh v. Chet Ram & Ors [1990] 1 CLJ 1079 the Indian Supreme Court said that a dying declaration, needless to say, does not require any corroboration as in the case of the evidence of an accomplice or a confession. However, where the deceased who made the dying declaration is an accomplice then corroboration of his evidence is desirable and necessary. [See Hill JA in Mary Shim v PP [1962] MLJ 132, 134 CA]. [53] ......... [54] This position in law has been reaffirmed by our Court of Appeal in the recent case of Seraman A Adipan v PP [2009] 5 CLJ 123; [2009] 3 MLJ 64, where the deceased had made the „statement‟ to several persons. The Court of Appeal endorsed the learned High Court Judge‟s finding there in that case that so long as it could be determined that the deceased had 22 made it and that he had the „capacity and clarity‟ of mind, it was absolutely safe to accept the oral or written statement of a deceased as to the cause of his death or to any circumstances of the transaction which resulted in his death. (The aforesaid Court of Appeal decision has since been affirmed by the Federal Court)”. [63] Be that as it may, the evidence of PW-10 would offer ample corroborative evidence that the deceased had given the said dying declaration to PW-6. As stated earlier, PW-10 also gave evidence of having heard PW-6 asking the deceased 3 times „siapa potong kamu’ and the deceased had answered once „Yosep’. This evidence is consistent with the evidence given by PW-6 and no doubt is a manifestation of corrobation in its clearest term. [64] In addition, PW-11 had given evidence that PW-10 had informed him that before the deceased collapsed, he had heard the deceased saying ‘Yosep’ after PW-6 had asked him 3 times as to who had slashed him. This information was given to PW-11 when he was investigating at the scene of the crime in the early hours of 5.8.2014. It is clear that PW-10, had at the first opportunity informed PW-11 of the dying declaration made 23 by the deceased to PW-6, hence ruling out that it was a recent fabrication or an afterthought. [65] On the issue of PW-11‟s failure to investigate the 3 other persons also carrying the names „Yosep‟, in our judgment, the evidence of PW-4 relating to the whereabouts or where the 3 other said persons were living, staying or working at the material time as enumerated at paras. 28, 29 and 30 above, is sufficient to exclude the involvement of these 3 persons in the murder of the deceased. In addition, the evidence of PW-6 that the appellant was the only person called „Yosep‟ living in the workers‟ quarters in Phase 1 and he had seen the appellant working and living in Phase 1 and the evidence of PW-10 that all the occupants of house No. 25, called the appellant „Yosep‟ and no one else was known or called as „Yosep‟ in the said house, firmly established the identity of the person involved in the murder of the deceased, to wit, the appellant, of whom the deceased had referred to as „Yosep’ in his dying declaration. 24 [66] Further, the evidence of PW-9 (Yohanes) the estate‟s supervisor, is most telling. The learned trial judge had this to say in respect of PW-9‟s testimony, at p.35, Jilid 1, RR: “[41] I accepted the evidence of PW9 that other than the accused, there was no other worker by the name of Yosep staying in Phase 1. His evidence that the accused had no other nick name and that he had not heard any other worker called the accused by any other name was also credible. To my mind PW9 would have knowledge of these matters as he was the supervisor of all the workers there and checked their attendance every morning. That was how he found out that the accused did not turn up for work on the morning of 4.8.2016. Based on his role as supervisor and his knowledge of the workers in Phase 1, I also accepted his evidence that there was no one else other than the workers from Phase 1 in the group of people that had gathered around the body of the deceased during the incident”. [67] For the reasons given, we found the appellant‟s 1st ground of appeal bareth of any merit. Ground (ii) – the learned trial judge had not adequately considered the defence [68] A rather central feature in the appellant‟s defence was his testimony that one fine day back in Indonesia in the year 2013, his crying wife had told him that she had been raped by the deceased and Stepanus. Yet they were too embarrassed to lodge a police report. 25 [69] In spite of the alleged rape, the appellant was willing to travel together with both the deceased and Stepanus to Sarawak to look for work, where the trio ended up working as grass cutters at the same site at Immence Fleet Sdn. Bhd. Oil Palm Estate. In addition, the appellant also ended up quartered in house No. 25 with the deceased and Stepanus. In fact, the deceased was his roommate in the said house. [70] It is also the defence‟s narrative that from the time they had arrived and settled down at the estate in March 2014 until August 2014, the deceased and Stepanus would randomly kicked and hit the appellant once a week in his room either during the day or at night. They would also taunt him by uttering ‘....not scared of you, who can help you....’. [71] In the early hours of 5.8.2014, while he (the appellant) was sleeping in his room, the deceased kicked his legs and slapped his cheek and uttered: ‘...stupid, why you sleep so early....’. The appellant claimed that he lost control, took out his parang and stabbed the deceased when the deceased continued to kick and hit him. 26 [72] Based on the above testimony, learned counsel submitted that the appellant was exercising his right of private defence when he inflicted the fatal stab wound upon the deceased (under Exception 2 of s.300 of the Penal Code). It was also submitted that the deceased had proved the applicability of the defence of sudden fight in the heat of passion upon a sudden quarrel (under Exception 4 of s.300 of the Penal Code) and the defence of grave and sudden provocation (under Exception 1 of s.300 of the Penal Code). [73] By s.105 of the Evidence Act, 1950, the burden is shifted and is now upon the appellant to prove the applicability of the said Exceptions and the burden is discharged on a balance of probabilities – see Ikau Anak Mail [1973] 2 MLJ 153. [74] We would first express our view that the appellant‟s narrative that his wife was raped by the deceased and Stepanus back in Indonesia makes no complete sense on account that in spite of the said rape, the appellant thereafter willingly embarked on a journey with the deceased and Stepanus to Sarawak to look for employment. Further, they ended up as grass cutters at the same site in the estate and even become housemates and in 27 fact the deceased was his roommate. No reasonable man would have done what the appellant did in the manner above when his wife was allegedly ravished by the same persons, now his co-workers and housemates. In addition, the offence of rape is a very serious offence. Yet, the appellant did not bother to lodge any police report. In such event, we were indeed very skeptical whether the said incident (rape) did in fact occur. [75] On the other hand if the allegation is true, it provides the perfect fodder for the appellant to tailed the deceased all the way to Sarawak and finally ended both the lives of the deceased and Stepanus. [76] In respect of the alleged physical abuse and taunts, under cross-examination the appellant agreed that he had stabbed the deceased that night because the deceased had woke him up by kicking and slapping him on the face. However, he became evasive and gave inconsistent answers when he was asked when the kicking and hitting actually started. 28 [77] Initially he answered that he did not know how to count. When asked if the kicking and hitting started 3 months before the incident, he replied that he was hit once a week. When it was suggested that he did not know when the kicking and hitting started, he answered that he was hit and kicked during the day and at night. [78] When the appellant was again asked when was the first time he was hit by both the deceased and Stepanus, he now answered that he could not remember. When it was next put to him that he could not remember because the kicking and hitting did not happen, he maintained that they did hit him and they had their reason to do so. [79] Further, he answered that he did not know how long the kicking and hitting lasted. [80] When requested to demonstrate how they had kicked and hit him, the appellant said that they kicked his foot and slapped his cheek. Both of them kicked him hard and used their hands to kick him. The appellant then 29 changed his evidence and said that only the deceased had hit and kicked him. [81] When asked what Stepanus did, the appellant said that Stepanus assisted the deceased by standing there and said something. When put that Stepanus did not hit and kick him, he disagreed. [82] In re-examination, when his counsel asked why the deceased and Stepanus hit and kicked him, the appellant merely answered that they hit, slapped and insulted him and raped his wife and the kicking and hitting started from the first month after their arrival at the estate and it happened once a week. [83] The appellant was adamant under repeated probing by his counsel that the reason he stabbed the deceased was because the deceased had repeatedly kicked and hit him and said ‘....not scared....‟ until he could take it no more. 30 [84] However, the investigating officer, PW-11, testified that in the course of his investigations, the appellant did not, at any time, inform him of the weekly beatings inflicted upon him by the deceased and Stepanus. The appellant also did not mention that both the deceased and Stepanus had called him „bodoh‟ or „malas‟. In fact, the appellant had only informed him that his wife was raped by the deceased and Stepanus back home in [85] In addition, PW-10, the housemate of both the deceased and the appellant, testified that he had not heard from anyone working in the estate or at the workers‟ quarters gossiping or talking that the deceased and Stepanus had raped the appellant‟s wife in 2013 in Indonesia. He also had not heard that these two persons had always bullied the appellant by kicking and hitting him and verbally abusing him. [86] Such was the irrefutable evidence stacked against the appellant. His evidence is unbelievably incredible. Coupled with the evidence of PW-10 and PW-11 and having regard to all the circumstances of the case, in our judgment, the appellant had failed to prove the existence of facts or 31 circumstances or occurrences to warrant or justify his reliance upon the said Exceptions embedded in s.300 of the Penal Code. The appellant had failed to discharge the burden that the Exceptions relied by him in his defence did apply to him. Indeed the evidence adduced does not suggest the occurrence of any fight at all between the appellant and the deceased nor the presence of sudden and gave provocation that precipitated the attack upon the deceased nor circumstances warranting the appellant to exercise his right of private defence to the extent of ending the deceased‟s life. PW-11 was very firm in his evidence that the appellant did not suffer from any injury when the appellant was handed to him by the arresting officer. [87] Finally, we were firmly of the view that the appellant had acted in a cruel manner and had taken undue advantage when he attacked and inflicted the fatal stab wound upon the deceased. The deceased apparently was unarmed. No weapons were recovered by the police at the crime scene to indicate that the deceased was armed at the material time. [88] The appellant carried the burden to prove that all possible defence can be applied in this case. The appellant had failed to do so. We opined 32 that the learned trial judge had rightly considered every possible defence that may be applied to the defence‟s case and found none could apply. There is little room for our interference – see Che Omar Mohd. Akhir v PP [2007] 3 CLJ 281; PP v Subir Cole [2015] 3 CLJ 505. Conclusion [89] For all the reasons above, we find that the conviction of the appellant is safe. The learned trial judge had meticulously gone through and correctly appreciated the evidence before her. Her findings were amply supported by the evidence adduced. There were no appealable errors to merit our intervention. Henceforth, we dismissed the appeal before us and affirmed the conviction and sentence handed down by the High Court. DATED: 31st MAY 2018 ( AHMADI HAJI ASNAWI ) Judge Court of Appeal, Malaysia 33 Counsel Solicitor:- For the Appellant: Ranbir Singh Sangha T/N: Ranbir S. Sangha & Co. Peguambela & Peguamcara For the Respondent: Wan Shaharuddin b. Wan Ladin Timbalan Pendakwa raya Jabatan Peguam Negara 62100 Putrajaya