ZULFALDY SHAFIEQ BIN ALI v Pendakwa Raya (Q-05(M)-302-07/2022)

The Appellant was charged with the murder of Tang Kee Luang under s.302 of the Penal Code. The murder was allegedly planned as the deceased was lured away from his home and work place to a secluded and isolated area where the murder was committed.

The prosecution has led evidence that the deceased was struck with an iron bar before being repeatedly stabbed in the neck to death inside the lorry. Subsequently, the deceased's body was wrapped in an orange-coloured canvas, tied with a rope and, later thrown into the Suai River. When recovered, the body had been partially eaten by what is believed to be a crocodile, with only the lower extremities remaining. There were bite marks on the remaining parts, and the body was swollen due to decomposition.

After a full trial, the Bintulu High Court found the appellant guilty, convicted him and sentenced him to death by hanging. He appealed to this Court against his conviction and sentence.

The charge against the appellant reads: "That you on 29th June 2019, at about 1425 hours to 1454 hours, located at unnamed road leading to Maritime Training Centre Sdn. Bhd. (SMTC) near Pantai Batu 1, Kuala Baram, in the district of Miri, in the State of Sarawak, did commit murder by causing the death of Tang Kee Luang (NRIC: 591207-13-5189), and you thereby committed an offence punishable under section 302 of the Penal Code".

On 25.6.2024, this Court, in a unanimous decision, dismissed the appellant's appeal against conviction but allowed his appeal on sentence by commuting his death penalty and substituting it with a sentence of imprisonment for 33 years with effect from 15.8.2019 and 12 strokes of whipping.

Dissatisfied with our decision, the appellant appeals to the Federal Court against both the orders of conviction and sentence.

The reasons for our decision are set out below.

The brief facts of the case as found by the learned trial judge are as follows. The deceased's son by the name of Tang Tung Yeong (PW3) had lodged a police report on 29.6.2019 that his father i.e. Tang Kee Luang was missing when he did not return home after going to work at GT Rental & Supply owned by PW3's father and having its address at Lot 3425, Jalan Pasar Lutong, 98100, Lutong, Miri, Sarawak.

On 1.7.2019, at around 12.30pm, PW1 and her husband had gone to Sungai Suai to check on their fish trap commonly known as bubu which was located at the tail end of the river. Whilst cruising along the river, they noticed an orange canvas which was shaped like a human body (pocong) floating and PW1 had recorded a video of the canvas with her mobile phone.

The next day, 2.7.2019, at around 2.00pm, PW2 was approached by two individuals, Eli and Andrew, who claimed to have seen a human body being eaten by a crocodile at Sungai Pabong. PW2, his father, Eli, and Andrew rushed to Sungai Pabong while bringing together with them tools for safety purposes. Upon reaching Sungai Pabong, they found that the body was no longer there. They went further to search the area towards Suai River and eventually saw a human body which was already half-eaten by a crocodile.

The police were immediately alerted and while waiting for the police to arrive, they caused the already half-eaten human body to be brought towards the riverbank.

At about 10.20pm the same day, the body of the deceased was sent to the Miri Hospital by the investigating officer, ASP Joyce (PW21) and Insp Nashriq after a file concerning the sudden death report was opened. At the Miri Hospital, the deceased's body was examined by one Dr Vomanasri who declared that the deceased's body had a lot of bite marks which was consistent with crocodile bite marks. The body of the deceased was then registered as Mr. X 1198 as the identity was yet to be identified.

The family members of the missing person in connection with the missing person report Lutong/003562/19 (P6) were thereupon asked by PW21 to identify the deceased's body at the Miri Hospital's morgue. However, when the missing person's family were shown the photographs of the deceased's pants and belt buckle, they could not identify the said items on the deceased's body and had also refused to see the body when asked by PW21.

On 4.7.2019 around 7.30am, Dr Kunasilan a/l Subramaniam (PW17) conducted a post-mortem examination on the deceased's body and extracted 2 samples from the right femur and muscle tissue of the deceased's body for the purpose of DNA analysis.

Separately, the DNA blood samples from the missing person's family members (Tang Huey Jiuan and Tony Tang Tung Yi) were extracted on 5.7.2019 by Dr Vomanasri.

The said 4 samples comprising the samples extracted from the deceased's body and missing person's family members were subsequently handed over to Jabatan Kimia Malaysia on 9.7.2019 by PW12 with the official receipt no. 19-FR-Q-01099 (P20). On 1.8.2019, the DNA result based on the chemist report no. 19-FR-Q 01099 (P21) established that Mr X 1198 were compatible with the DNA samples of Tang Huey Jiuan and Tony Tang Tung Yih (the missing person's family members) as biological children and this also showed that Mr X 1198 is their biological father. It was then discovered that Mr X 1198 was found to be Mr Tang Kee Luang ("the deceased").

As for the estimated time of death, based on the post-mortem report (P133) prepared by PW17, the estimated time of death was 48 to 72 hours from the time PW17 received the body, i.e. on 2.7.2019. According to PW17, the estimated time of death is not absolute and could be influenced by multiple factors such as environmental temperature, humidity, animal predation, presence of clothing, body mass, among others.

In relation to the cause of death, the post-mortem report revealed no cause of death. However, it confirmed that the bite marks on the deceased's body were consistent with that of crocodile bite marks.

In connection to the investigation into the death of the deceased, on 15.8.2019, the police arrested the appellant and four other suspects namely Wan Asin Bin Wan Sri (PW5), Rosman Bin Salam (PW7), Muhd Khairulnizam Bin Musa (PW8) and PW20 as per the arrest reports P13, P40, P9, and P46, respectively.

At the end of the investigation, PW5, PW7, PW8 and PW20 were made prosecution witnesses and only the appellant was charged.

The prosecution relied on both direct and circumstantial evidence. PW20 (who is under the Witness Protection Program) gave an eyewitness account of him having witnessed the inflicting of injuries on the deceased, which resulted in his death.

The learned trial judge had narrated the events leading to the death of the deceased based on the account of an eye-witness PW20 who was with the appellant before, at the time of, as well as after the commission of the offence which are as follows.

The evidence before the Court reveals that prior to 2019, PW20 and the appellant who was then a contractor were merely casual friends. They first got acquainted with each other sometime in 2017 during an illegal motor racing event. They only became close in 2019 when the appellant hired PW20 to do repair works at the appellant's family house. As a contractor, the appellant always gave PW20 jobs to the point that PW20 felt very indebted to the appellant. Sometimes, the appellant will ask PW20 to accompany him whenever he goes out to gamble. The appellant is also known to be generous to PW20's family and always gives money to PW20. Before Hari Raya in the year 2019, PW20 had in addition borrowed RM500.00 from the appellant.

About a week before the deceased was killed, PW20 testified that the appellant had asked him and one Mamat to come with the appellant to the Luak area in his silver Myvi where the appellant played online gambling. It was at this place in Luak that PW20 saw that the appellant had lost RM40,000.00. According to PW20, he said he knew the amount because he was asked by the appellant to buy the reload for the appellant's online gambling in cash.

PW20 went on to testify that on the evening of 26.6.2019, the appellant had asked him to come over to his house in Desa Viana, Bakam. When they were in the house, the appellant told PW20 of his plan to rob a Chinese man, being the deceased, whom the appellant should have paid using the money that he had lost in online gambling. The appellant also told PW20 that the said Chinese man is a supplier of "Open Tray" kontena and that he had ordered the same from him. PW20 also said that the appellant also wanted the victim "to padam", which means to die. PW20 claimed that the appellant had coerced him into following his plan and had threatened him to pay back his debt of RM500, or to physically harm and/or assault him, his family and to burn PW20's house if PW20 refused to go along with his plan.

Later in the night, PW20 said the appellant called PW20 to go to his house sometime before 12.00 am the next day, 28.6.2019 (Friday). PW20 arrived at about 10.45 am and together with the appellant drove to the deceased's workshop. At the workshop, PW20 stated that the appellant came down to meet the deceased while he remained in the car. According to PW20, the appellant simultaneously told him that the deceased is the person that he planned to rob.

On the night of 28.6.2019, PW20 said that the appellant again called him and asked PW20 to come to the house before noon the next day, 29.6.2019 (Saturday).

On 29.6.2019, when he arrived at the appellant's house sometime around 10.00 am, PW20 stated that the appellant and himself drove to the Marina in the appellant's silver Myvi. During the drive, the appellant according to PW20 kept on insisting that PW20 joins his plan to rob the deceased. When PW20 maintained his refusal, the appellant kept on guilt-tripping him by saying that he had been helping PW20 and his family and it was time for PW20 to return his good deeds.

At the Marina, PW20 said that they had lunch. During the said lunch, PW20 said that the appellant called the deceased asking him when he will arrive at Batu 1. After lunch, the appellant then drove the car with PW20 and stopped in a Lorong with a STMC signboard. While waiting for the deceased to arrive, PW20 said that he and the appellant waited in the car. PW20 testified that while waiting, the appellant opened the car dash board and pulled out a pen knife (P38) and handed it over to him. The appellant also pulled out one iron bar which according to PW20 was about 1 foot long from the driver's door which the appellant handed to him. The appellant then went towards the Myvi's boot and pulled out a black plastic bag and covered the back seat using the same.

PW20 went on to testify in his witness statement that a few minutes later, a white Daihatsu lorry driven by the deceased arrived. The deceased came alone and the appellant then approached the deceased by getting into the lorry through the front passenger's door while PW20 waited inside the Myvi. PW20 further said that the deceased turned off the lorry's engine and scrolled down the window when the appellant approached him.

Not long after, PW20 stated that the appellant came back to the Myvi and asked PW20 why he has yet to beat the deceased. The appellant then told PW20 to come out of the car and head over to the lorry with him. PW20 did as he was instructed but purposely left the pen knife and the iron bar inside the Myvi. The appellant thereafter gave him a signal to strike the deceased but when PW20 did not do anything, they then went back to the Myvi again.

According to PW20, the appellant was furious and scolded him for leaving the pen knife and iron bar in the car. They then went back to the lorry and this time he reluctantly took the pen knife and put it inside his trouser's pocket while the appellant hid the iron bar in his shirt behind his back.

PW20 went on to testify further that the appellant then went inside the lorry once more through the front passenger's door while he waited at the back of the lorry. PW20 said that while waiting, he heard the deceased and the appellant arguing. During the argument, PW20 said that he overheard the deceased complaining to the appellant that the appellant had yet to pay him the remaining balance of the Open Tray. PW20 subsequently saw through the glass partitioning part between the cabin and the bucket of the lorry that the appellant was struggling with the deceased and during the struggle, the appellant hit the deceased with the iron bar which he took from the Myvi earlier. PW20 however said that he was not sure how many times the appellant had hit the deceased with the said iron bar.

PW20 also testified that he then ran over to the front of the lorry at the driver's side when he heard the appellant calling him. Through the window which was rolled down, PW20 saw the appellant and the deceased still struggling. It was also apparent that the deceased's clothes was covered with blood. At that point, the appellant according to PW20 shouted at him to unfold the pen knife and hand it over to him.

PW20 mentioned that when he opened the driver's door to hand over the pen knife, the deceased's upper body was already leaning towards the appellant's lap but that he was still sitting on the driver's side. He then handed over the unfolded pen knife to the appellant. However, instead of taking the pen knife, PW20 said the appellant with both his hands, grabbed PW20's own hands and pulled him up from the ground. While still holding PW20's hand, the appellant proceeded to stab the deceased's neck with the pen knife once. After that, the appellant released PW20's hands and went down from the lorry. As he was going down, PW20 saw the appellant pulling out the pen knife from the deceased's neck and stabbed him again a few more times. An extract of what PW20 said when he handed over the pen knife to the appellant is hereby reproduced. He also gave a demonstration in court on how the alleged stabbing of the deceased took place which was recorded in the Notes of Proceedings at page 391 line 6427 to 6243. "Semasa saya menghulurkan pisau lipat kepada Shafieq, Shafieq terus menggengam tangan saya yang memegang pisau lipat tersebut menggunakan kedua-dua tangan beliau. Kemudian dia menarik tangan saya bersama pisau dan mencucukan pisau it [sic] ke leher cina itu. Darah pun memercik dari leher cina itu. Selepas itu, baru lah Shafieq mencabut semula pisau lipat tersebut dan mencucuk beberapa kali lagi pisau lipat ke leher cina. Saya tidak tahu berapa kali dia cucuk.

When cross-examined by the learned counsel for the appellant, PW20 disagreed that when he handed the knife to the appellant, his feet were still firmly on the ground. He then went on to clarify in reexamination as to the position of his feet at the material time as follows:- "Q21. Based on Q235, 236 and 257, can you clarify to the court the actual situation regarding the placement of your feet when your hand was held by the accused inside the lorry and he bring your hand to stab the Chinese man? A. "Mula mula kaki saya memang berdiri di bawah tanah semasa saya bagi pisau. Shafieq menggengam tangan saya. Dia Tarik saya ke atas terus dia cucuk. Saya tertarik ke atas. Kaki saya tergantung dan berpijak di bahagian tepi tempat berpijak lori. Badan saya kecil, jadi kekuatan tidak sama, dia Tarik saya".

Subsequent to the incident, PW20 said that the appellant then asked him to drive the Myvi to the right side of the lorry and together, they brought the deceased's body into the backseat of the Myvi. The appellant then instructed him to drive the Myvi whilst the appellant drove the lorry to some place unknown to him. While they were on their way, PW20 said the lorry got stuck on PW7's land and was left there. He and the appellant then proceeded to the appellant's house and wrapped the deceased's body using an orange-coloured canvas and tied the same with a rope. At around 10.00pm at night, PW20 and the appellant went to Sungai Suai to dispose of the deceased's body. According to PW20, the appellant also paid him RM 100.00 after they cleaned up the car and its floor.

On 30.6.2019, before PW7 and PW8 arrived to help out with the lorry, the appellant and PW20 cleaned up the bloodstains in the lorry. On 1.7.2019, the appellant asked PW20 to remove and/or detach the passenger seat of the lorry and subsequently on 2.7.2019 had also asked for PW7's and PW8's help to dismantle and/or disassemble the lorry into parts using a grinder supplied by the appellant.

PW20 said the appellant also instructed him to dispose of the evidence related to the incident, which he did. The evidence were as follows:-

The handphone belonging to the deceased was thrown away at Jalan Lusut's drainage;

(ii) The keys belonging to the deceased and the folded pen knife were buried in the ground;

(iii) The appellant's and PW20's clothes, the deceased's paperwork, and books were burnt at Esplanade;

(iv) The deceased's shoes were thrown away at the beach area; and

The iron bar was thrown away. Whether PW20 is an Accomplice [40] In the light of PW20's role and involvement in the death of the deceased, the learned trial judge thought it necessary to carefully scrutinise PW20's evidence to determine whether he can be regarded as an accomplice and if so, how his evidence is to be treated. [41] The learned trial judge says that PW20 was an accomplice based on his role during and after the murder of the deceased. This is despite PW20's reluctance to go along with the appellant's plan and despite the pressure and threats that the appellant had exerted on him and the attempts by PW20 to resist the appellant's persistent threats. [42] Although PW20 was an accomplice, the learned trial judge says that reliance could be placed on the uncorroborated evidence of PW20 due to the threats exerted on him by the appellant. High Court's decision at the end of the prosecution's case [43] At the end of the prosecution's case, the learned trial judge found that the prosecution had established a prima facie case against the appellant under s. 302 of the Penal Code by proving the following elements that:

Tang Kee Luang is dead;

(ii) Tang Kee Luang died as a result of injuries sustained by him;

(iii) the injuries of Tang Kee Luang were caused by or as the result of the act of the appellant;

(iv) in inflicting the injuries upon Tang Kee Luang, the appellant either:

Caused them with the intention of causing death; or

intended to inflict the said wounds on Tang Kee Luang which he knew would be likely to cause death; or

intended to inflict the said wounds on Tang Kee Luang which is sufficient in the ordinary course of nature to cause his death; or

knew that his act in inflicting the wounds would in all probability cause death or is likely to cause death and he had no justification for his act. Tang Kee Luang is dead [44] On the first element regarding the identity of the deceased, the learned trial judge relied on the scientific evidence of the DNA test from the deceased's specimen and also from the specimen of the deceased's children, Tang Huey Jiuan and Tony Tang Tung Yih as shown in the chemist report (P21). [45] The learned trial judge was satisfied that the half-eaten human body found at the Suai River was that of the deceased, Tang Kee Luang, who was reported missing by his family members. Tang Kee Luang died as a result of injuries sustained by him [46] From the evidence of the deceased's son i.e. PW3, the Chemist (PW19), the medical examiner (PW17) as well as the medical certificate (P134) pertaining to the cause of the deceased's death and taken all these evidence as a whole, the learned trial judge was satisfied that the deceased had died as a result of the injuries sustained by him. The injuries of Tang Kee Luang were caused by or as the result of the act of the Appellant [47] From the evidence of PW20, the appellant hit the deceased first on the head with an iron bar and then stabbed him in the neck several times using a pen knife. Thereafter, the body of the victim was wrapped with a yellow canvas before it was thrown into the Suai River. At that time, PW20 noted that the deceased was no longer moving. [48] Despite PW17 being unable to confirm the cause of the deceased's death due to the condition of the deceased's body when it was brought for post mortem, the learned trial judge accepted the evidence of PW20 as sufficiently proving that the deceased had died as a result of the repeated stabbings in the neck by the appellant. That the appellant's acts in inflicting the injuries upon Tang Kee Luang which had caused the death of the said Tang Kee Luang amounted to murder under all the four limbs of s. 302 of the Penal Code. [49] The learned trial judge has made a finding of fact that the act of the appellant amounted to murder. The learned trial judge said at paragraph 82 of his judgment as follows: "[82] Based on the authorities above, there is no doubt that the repeated act of stabbing by the Accused in the neck and subsequently throw the deceased body in Suai river which is known to have crocodiles was done with the intention of causing bodily injury. The circumstances also indicated that the action of the Accused was premeditated in that prior to killing the deceased, he mentioned to PW20 that he wanted to rob the deceased and to "padam" him because the money which was supposed to be paid to the deceased was lost by the Accused in gambling. He even showed PW20 the deceased whom he meant to rob and "padam". Apart from that, the Accused also kept a pen knife, an iron bar and a plastic bag in his car. The fact that he had kept those items in the car and asked the deceased to meet him in a quiet place on a Saturday clearly reflected the intention of the Accused. Based on the circumstances of the case and the direct evidence of PW20, it can be inferred that there is beyond reasonable doubt that the act of killing the deceased by the Accused fell under all 4 limbs of section 300 of the Penal Code." [50] Having found that the prosecution has established a prima facie case against the appellant, the learned trial judge called the appellant to enter into his defence. The Defence [51] The appellant called 3 witnesses including himself to testify on his behalf. His other witnesses were Mohamad Bin Salam (DW2) and the appellant's brother Mohammad Naqiuddin bin Ali (DW3). [52] DW2's evidence was that he knows PW20. He knew him way back in 2018/2019. He also said that he also knows the appellant and knew him around the same time as PW20. In his witness statement WS-DW2, DW2 testified that he had no knowledge about the appellant ever being involved in online gambling or that the appellant ever lost in online gambling. He also testified that the appellant had never asked him to pay any debts associated with online gambling. However, in cross-examination, when it was put to him by the learned Deputy Public Prosecutor that he had spent quite a lot of time with the appellant and PW20 and that the times spent with the appellant and PW20 were mainly because PW20 and DW2 accompanied the appellant to play online gambling, DW2 answered "yes". In re-examination, when the court asked him to clarify whether the appellant was ever involved in online gambling, his answer was also in the affirmative. [53] DW3, on the other hand, was merely called to confirm that he did give a loan to PW10. As PW10 was unable to repay the loan on time, the Myvi was given to DW3 as a security. However, as DW3 was in Bintulu, he authorised the appellant to use the Myvi as he trusted the appellant. His evidence was never disputed by the prosecution. [54] As for the appellant's evidence, he denied that he intended to rob and kill the deceased person. His version was that it was PW20 who planned to rob and kill the deceased. On the events that transpired at STMC, Batu 1, which culminated in the death of the deceased, the appellant testified that he and PW20 waited at the crime scene for about 15-30 minutes before the deceased arrived in a white lorry and parked it behind the appellant's Myvi. The appellant then got out of the car and walked towards the lorry and opened the front passenger's door and entered the lorry to hand over the RM1000.00 to the deceased. As he was getting out of the lorry from the front passenger's seat, he suddenly saw PW20 open the driver's door of the lorry. [55] The appellant immediately got out of the lorry as he was under the impression that PW20 was actually carrying out his plan to rob the deceased. As the appellant did not want to take part in PW20's plan, he went to the back of the lorry and by the time he decided to try and stop PW20, he saw through the glass partitioning between the cabin of the lorry where the deceased was and the bucket of the lorry that PW20 had struck his hands several times at the deceased but he could not see what weapon was being used by PW20. [56] When he went to the driver's side of the door to the lorry, PW20 had stopped hitting the deceased. The appellant then ran towards the Myvi as he was afraid. PW20 also quickly came towards the Myvi and at that time he saw PW20 holding a silver knife and PW20 had blood stains on his trousers and shirt. [57] When he asked PW20 why he did it and that he was going to report him to the police, PW20 instead asked him to help him dispose of the deceased's body, otherwise, PW20 said that he would tell the police that it was him, the appellant, who killed the deceased and that he got PW20 involved in the killing as well. The appellant then got scared and followed PW20's instruction to help PW20 carry the body of the deceased into the rear seat of the Myvi. When he saw the body of the deceased, he felt squeamish and refused to drive the Myvi when PW20 instructed him to do so. The High Court's evaluation of the evidence at the end of Defence case [58] Having evaluated the evidence in the defence case, the learned trial judge found that the version put forth by the appellant is not convincing and is a bare denial. The learned trial judge stated (at paragraphs 124-128 of the learned trial judge's judgment): "124. In considering the Accused's defence, the court finds that his version of events leading to the murder of the deceased by placing himself in the role of PW20 in PW20's version of events is hardly convincing as it contradicted with the evidences before me. The unmistakable impression I get from the defence of the Accused is that having murdered the deceased, he has to deny and try to create a story by shifting the blame on PW20 in the hope that the court will believe it. However, I maintain that the findings by this court that PW20 is a reliable witness is not diminished by the evidence of the Accused in his defence.

Having observed the Accused giving evidence, I must place on record that I do not find him convincing. In an attempt to push the blame on PW20, he contradicted himself. The Accused's claim that he was scared of PW20 to the extent of having been dictated by PW20 on what to do is not only unbelievable but also improbable as it contradicted his own evidence where he said that he had refused to drive the Myvi when PW20 asked him to do so as the body of the deceased was in it. If it truly was the case that the Accused was scared of PW20, he would not have dared to go against PW20's alleged instructions. From the facts, it is more probable that the Accused assumes more control over PW20 due to his economic status and background as mentioned earlier.

In an attempt to further portray his innocence, the Accused mentioned that he did not want to be involved in PW20's plan to rob the deceased and that he thought PW20 was joking when he told him about it. However, when the Accused saw PW20 at the lorry's door wearing a head cover as alleged, he simply went to the back of the lorry without saying or doing anything that would indicate that he did not want to be involved in PW20's plan.

In addition, the fact that the Accused felt squeamish for having to drive the Myvi with the deceased's body in it but was however fine with driving the lorry, which according to him was covered in blood, is equally hard to believe.

Further, when his witness DW2 was called to testify, to prove that he has never been involved in any gambling activities, including online gambling, DW2 gave a different answer in cross examination and confirmed that the Accused gambled, contrary to what the Accused said in his testimony on oath that he never gamble. Even when DW2 was asked by the learned Deputy Public Prosecutor during re-examination, DW2 did not deny the fact that the Accused was involved in gambling but rather just mention "kemungkinan ada". This clearly shows that the Accused's credibility has been vitiated." [59] The learned trial judge made a finding of guilt against the appellant after making a finding that the defence is a bare denial without evidence to justify the denial. He was satisfied that the appellant had failed to cast any reasonable doubt as to the truth of the prosecution's case. This is what the learned trial judge said (at paragraphs 130 and 131 of the learned trial judge's judgment): "130. In the light of the evidence that had been given by the Accused, it leaves me with the duty and this time to weigh and evaluate the entire evidence both of the Prosecution and the defence. After doing so, I am unable to accept or believe the explanation given by the Accused. I find that his defence was one of denial, a denial that it was him who wanted the deceased dead, a denial that he ever threatened to harm PW20 and his family if PW20 refused to help him in his plan to "padam" the deceased and a denial that it was him who stabbed the deceased that resulted in the deceased's death all of which he never substantiate. It is trite law that the defence of bare denial is no defence. Similarly, denials without evidence to justify the denial likewise can carry no weight. Therefore I find that his denial did not raise a reasonable doubt as to his guilt.

Having therefore considered all the evidence adduced in this case as a whole including that of the defence, I am satisfied that the Prosecution has proven all the elements of the charge preferred against the Accused beyond all reasonable doubt. I am also satisfied that the evidence of the Accused has not raised any reasonable doubt as to the truth of the Prosecution's case. Hence, I therefore find the Accused guilty as charged and convict him accordingly. The Accused is sentence to death by hanging to the neck until death in accordance with Section 277 of the Criminal Procedure Code." The identity of the deceased [60] The learned counsel for the appellant contended that there is no evidence before this Court to show that the Chinese man allegedly killed by the appellant was the same person as Tang Kee Luang whose body was recovered from the Suai River. PW20 was never asked to identify the deceased by way of any photograph or by any other means. [61] It was further contended that even if the body recovered from the Suai River was proven to be the same person as was allegedly assaulted by the appellant (which is denied), the cause of death was stated as unascertainable by the pathologist (PW17) and as such the cause of death has not been proven. [62] The learned Deputy Public Prosecutor submitted that the learned trial judge did not make any appealable error with regard to the fact that the deceased person is Tang Kee Luang. Evidence has been adduced and accepted by the learned trial judge that:

The half-eaten human body found at Suai River was that of the deceased, Tang Kee Luang, who was reported missing by his family and that he had died as a result of the injuries sustained by him.

(ii) Such finding was based on the DNA comparison between the deceased's specimen and also the specimen of the deceased's children, Tang Huey Jiuan and Tony Tang Tung Yih, the DNA result as per the chemist report (P21), the evidence of the deceased's son, Tang Tung Yeong (PW3), the evidence of the Chemist (PW19), the Medical Examiner (PW17) as well as the medical certificate (P134) pertaining to the cause of death.

(iii) The appellant knows the deceased person named George Tang and based on the witness statement of the appellant (WS-DW1) it was not disputed the deceased was Tang Kee Luang and he had dealt with the deceased prior to and during the commission of the murder [See: Appeal Record Volume 2D, page 656-671, Q18-Q47].

(iv) The learned trial judge has also made finding of fact as to the cause of death of the deceased which was the result of the repeated stabbing in the neck by the appellant based on the evidence of PW20, an eye-witness who gave direct account of the act of stabbing by the appellant on the deceased's neck inside the lorry at the place stated in the charge [See: Appeal Record Volume 1, page 29-30, para [44]-[46]. [63] We see no reasons to depart from the findings of fact by the learned trial judge that the deceased in the instant appeal is Tang Kee Luang based on the scientific evidence in the form of DNA analysis of the specimens extracted from the deceased and his children as per the chemist report (P21). We agree that there was no necessity for the photographs of the half-eaten body of the deceased and his trousers and belt that was removed from the body recovered from the Suai River to be identified by PW20 since none of the family members of the deceased could even identify that body was that of Tang Kee Luang. We are further of the view that from the evidence of PW20, it is clear that the missing person was Tang Kee Luang who suffered the injuries caused by the appellant and his body was dumped into the Suai River which is also the place where the half-eaten body of the deceased was recovered. [64] Even though the Medical Examiner (PW17) testified that the cause of death cannot be determined due to the condition of the body when it was brought to him for examination, the learned trial judge had accepted the direct evidence of PW20, who gave evidence that he saw the appellant causing bodily injuries to the deceased by repeatedly stabbing at the neck of the deceased. What is certain according to PW17 is that the crocodile bite marks only occurred after the death of the victim which is consistent with the evidence of PW20 that the deceased's body was no longer moving when they wrapped it with a yellow canvas before it was thrown into the Suai River. [65] The learned trial judge made a remark that it would be absurd to suggest that PW20 did not know that the deceased had died after the repeated stabbings in the neck by the appellant or the difference between a dead person and a person who is still alive and kicking when he and the appellant threw the body of the deceased into the Suai River. No motive on the part of the Appellant to kill the Deceased [66] The learned counsel for the appellant also submitted that the appellant had no motive to kill the deceased. In fact, the evidence shows that the motive of the appellant was to pay the deceased the balance of the amount owed and then get paid by PW5 (Said Asin) so that he would collect his profit for the items manufactured. [67] Whilst motive is not the necessary ingredient to be established in proving the offence of murder, the learned Deputy Public Prosecutor submitted that the appellant in this appeal had every reason to kill the deceased which evidence is relevant to support the prosecution's case. The appellant had lost his money in online gambling and decided to rob and kill the deceased at the place as stated in the charge. The deceased was murdered inside his lorry and subsequently the deceased lorry was dismantled into small parts. The appellant did not deliver the remaining 1 wire sling on Monday, 1.7.2019, as promised to PW5 undoubtedly shows the appellant's motive to rob and kill the deceased person (see: Appeal Record Volume 2A, page 73, Q14). [68] The learned Deputy Public Prosecutor further submitted that the learned trial judge was correct to hold that PW20 could not have had any motive to kill or rob the deceased person. If anything, PW20 would have been better off robbing the appellant as he was the one in possession of the money which was supposed to be paid to the deceased. The learned trial judge found it was the appellant who knew the deceased well, and anyone that would have the motive against him would be the appellant, who at that time was under pressure from PW5 to deliver the trays and the Load Test Certificate for the said trays. [69] The motive behind the commission of the crime is a relevant fact on which evidence can be given on that effect although the absence of such evidence is not fatal to the prosecution's case. In the instant appeal, we find that the learned trial judge had properly considered the evidence and circumstances of the case to support his findings of fact that it was the appellant who had the motive to rob and kill the deceased rather than PW20. We find there was no plain error in the learned trial judge's findings that the appellant had the motive to kill the deceased for the reasons as stated above. [70] If we may add on to say that if what was alleged by the appellant that his motive was to pay the deceased the balance of the amount owed to the appellant is to be believed, why is there a need for such payment to be made at the secluded and quiet place instead of the deceased's workshop which is more convenient for everyone. [71] The learned counsel for the appellant submitted that PW20's version of events where he followed the appellant to the road leading to SMTC and even took out the folded knife to hand it over allegedly to the appellant so that the appellant could stab the deceased shows that he was an accomplice. It was further submitted that even if PW20's evidence is to be believed, the learned trial judge should warn himself of the danger of convicting the appellant based on the uncorroborated testimony of PW20. [72] On this ground, we agree with the learned Deputy Public Prosecutor that the learned trial judge had warned himself of the danger of convicting the appellant on uncorroborated evidence of an accomplice. The learned trial judge was of the view that it is safe to rely on PW20's testimony even if there is no corroboration. Nevertheless, in the instant appeal, the learned trial judge finds that the evidence of PW20 was sufficiently corroborated that would link the death of the deceased with the injuries caused by the appellant based on the following evidence:

The evidence of PW7 who confirmed the version of PW20 regarding the disposal of the lorry and also the payment of RM50.00 daily to PW20, PW7 and PW8;

(ii) The evidence of PW7 who confirmed that it was the appellant who told him to cut up the lorry to be sold. According to PW7, it was the appellant who instructed them to dispose of the lorry and that PW20 was only acting on the instruction of the appellant;

(iii) PW18 and PW15 who managed to retrieve the items that had been disposed of by PW7, PW8 and PW20;

(iv) PW5 testified that prior to the disappearance of the victim, he was supposed to meet the deceased and the appellant regarding the payment for their transaction, which goes to show that the deceased and the appellant knew each other rather than PW20 who only came to know the deceased from the appellant;

The testimony from PW1, PW2 and PW17 regarding the condition of the deceased's remains were consistent with PW20's testimony that he and the appellant dumped the deceased's body into the Suai River to be eaten by crocodiles; and

(vi) The recovery of the incriminating items by the police as a result of the information obtained from the appellant as well as PW20 while they were detained by the police. [73] In attacking the credibility of PW20, the learned counsel for the appellant had referred this court to the various contradictions in his evidence. On the one hand, PW20 had testified that the appellant had threatened him by demanding the money that the appellant had loaned to him be paid immediately if PW20 did not want to follow the appellant's plan to have the deceased killed. PW20 further testified that the appellant had threatened him by saying that the appellant would knock him and his wife down. The appellant also threatened him by saying he could pay someone to stab and kill him when PW20 was alone, and if the appellant could not do that, he would burn PW20's house so that his whole family would be wiped out. On the other hand, PW20 also alleged that the appellant had lost his money in an online gambling and would not have the money to pay the deceased. [74] The learned counsel for the appellant submitted that PW20 was lying about how he felt threatened by the appellant to kill the deceased when in actual fact, PW20 knew that the appellant did not have the means to execute his threat. Further, it was also the defence's submission that despite being threatened, PW20 never lodged any police reports to that effect. [75] Another contradiction which the learned counsel for the appellant highlighted to this court is the evidence of PW20 and PW5 wherein PW20 stated that he and the appellant had gone to the deceased's house on 27.6.2019 to see the trays which were supposed to be delivered by the deceased to the appellant on 28.6.2019. On the other hand, PW5 testified he only met the deceased on 28.6.2019 and was informed that the deceased had not received the payment. Subsequent arrangements were then made for the payment to be paid by the appellant to the deceased and for the delivery of the items to be made on 28.6.2019. [76] The learned counsel for the appellant submitted that PW20's evidence that the appellant met the deceased on 27.6.2019 could not be believed because if the appellant had met with the deceased on 27.6.2019 and arranged for delivery of the trays to be made on 28.6.2019, then the appellant would not have been called up by PW5 on 28.6.2019 and was asked by PW5 to go to the deceased's house to arrange for payment to be made and for delivery of the said items. [77] Besides the above there are other inconsistencies pointed out by the learned counsel for the appellant in his submission, inter alia: on the position of the deceased's head when PW20 handed over the pen knife to the appellant, whether it was leaning on the shoulder of the appellant or on his lap when the incident took place; PW20's inability to estimate the distance between the door next to the passenger's seat and the door next to driver's seat when PW20 testified that he was a "tukang rumah" and ought to know about the measurements; and PW20 was not consistent in explaining the gambling transaction of the appellant when PW20 said that he was asked by the appellant to go to the counter to pay for the appellant's online gambling when in fact the appellant was able to effect the transaction via his handphone without the need to go to the counter. [78] On the credibility of PW20, the learned trial judge acknowledged there are inconsistencies in some of the evidence given by PW20. Nevertheless, the learned trial judge found that they are all immaterial and have no adverse effect on PW20's credibility. According to the learned trial judge, these inconsistencies are all pure assumptions and allegations which cannot be relied on to attack the credibility of PW20. The learned trial judge ultimately accepted PW20's evidence and ruled that he is a credible witness, thus making a finding of fact to this effect. [79] There was nothing to show that the learned trial judge had wrongly assessed the evidence and came to a wrong conclusion which otherwise would warrant our interference in so far as the credibility of PW20 is concerned. The learned trial judge gave his reasons as to why PW20 is a credible witness which can be seen at para [70] to [72] of his judgment as follows: "70. In the course of giving evidence, I have also had the opportunity of observing PW20's demeanor and assessed his evidence carefully and after seeing him in the witness box, I was left with the impression that he is a credible witness. If what he told the court is a lie, he would not have made it complicated by relating in detail about how the Accused took the knife from him, held his hand and even demonstrating before the court how the alleged stabbing of the deceased took place. Instead, he could have just said that the Accused took the knife from him and stabbed the deceased. From this, it is my view that PW20 is a truthful witness and that what he has related in court was what actually happened and what led to the death of the deceased. There is no good reason for me to doubt his evidence at this stage of the trial as the evidence shows that PW20 had no motive to kill the deceased since PW20 did not even know him in the first place. PW20's reason that he was pressured by the Accused to go along with his plan, the threats made by the Accused towards him and his family and his indebtedness to the Accused could well be true taking into account the fact that he is not well educated and is dependent on the Accused for jobs as his source of income, thereby making him susceptible target to manipulation.

During the trial, PW20 was subjected to 2 days of vigorous cross examination. From his answers to the questions and the manner in which he had answered them, I am fortified in my belief that he has been telling the truth on all material matters. During cross examination, he consistently denied that he was the one who stabbed the deceased with the pen knife. From the demonstration given by PW20 in court coupled with his story line which led to the death of the deceased, there is nothing in his evidence that contradicts his story that it was the Accused who had stabbed the deceased, thereby causing his death. There is also nothing incredulous about PW20 being lifted from the driver's door by the Accused using both hands while PW20 was holding the pen knife as PW20 is small in size compared to the Accused.

I am of course fully aware that demeanor is not always a touch stone of truth. It is only an ingredient in arriving at a finding of credibility. See Tengku Mahmood v PP [19741 1 MLJ 110. His evidence must therefore be tested against the totality of the evidence in entirety. Having done so, I maintain that I have no reason to hold that PW20 is not a credible witness". [80] The learned trial judge pointed out that how the appellant lost the money or how the transaction was made during the course of the online gambling was not a relevant fact. It did not distract from the evidence of PW20 that it was the appellant who killed the deceased. On whether the threat against PW20 was real and if so, why PW20 did not lodge a police report, the learned trial judge has considered this issue through the appellant's own evidence that he brought RM29,600.00 with him on 28.6.2019 which proved the point made by PW20 that the appellant wouldn't have held threats against PW20 and his families if he had no financial means to do so. [81] The learned trial judge also found the reason why PW20 did not report to the police on the threats made by the appellant illustrates the predicament that he was in at that time as follows: "63. The fact that he did not report to the police on the threats made by the Accused illustrates the predicament that he was in when he said in re-examination at Q&A7, (in refuting the allegation by the learned counsel that he did not make a police report because he did not feel threatened), as follows: "Saya takut dia ugut saya sebab saya tidak buat repot. Dia ancam. Shafieq cakap kamu buat repot, belum tentu saya selamat. Dia ancam kalau saya tidak ikut rancangan dia, dia akan langgar saya bila-bila masa di mana-mana saya jalan. Kalau dia tidak dapat saya dia boleh langgar isteri saya atau bakar rumah saya. Itu lah saya tidak buat report." [82] On the alleged contradiction between the evidence of PW20 and PW5, the learned trial judge found that there was no contradiction at all, as the purpose of the meeting on the evening of 27.6.2019 was for the appellant to point out the house of the deceased to PW20 and it was during that meeting, the appellant informed PW20 about the transaction to be executed by the appellant and the deceased which was to be held on Saturday, 28.6.2019. The meeting on the evening of 27.6.2019 was between the appellant and PW20 and not PW5. [83] PW5 in his evidence clearly stated he went to the deceased's house on the morning of 28.6.2019 and found out the deceased did not receive any payment from the appellant for the open trays. PW5 called up the appellant and asked him to come to the deceased's house. By the time, the appellant came, the deceased had already left. PW5 and the appellant went to see the deceased's worker (PW4) asking the worker to amend the size of the open trays. In the evening, the open trays and 1 wire slings were sent to MATCO office and was confirmed by PW4. PW20 was clear in his evidence that he had followed the lorry carrying the open trays to MATCO office from behind in the Myvi's car together with the appellant. We see no merit on this issue raised by the learned counsel for the appellant. [84] On the point raised by the learned counsel for the appellant that the deceased was not killed in the manner described by PW20 due to the contradiction in his evidence on the position of the deceased at the time of the alleged stabs by the appellant, the learned trial judge had directed his mind on the evidence of PW20 regarding how the stabbing was carried out by the appellant inside the lorry and how PW20 was pulled up by the appellant while the appellant stabbed the neck of the deceased. The relevant paragraphs of the judgment of the learned trial judge are reproduced as follows: "38. PW20 also testified that he then ran over to the front of the lorry at the driver's side when he heard the Accused calling him. Through the window which was rolled down, PW20 saw the Accused and the deceased still struggling. It was also apparent that the deceased's clothes was covered with blood. At that point, the Accused according to PW20 shouted at him to unfold the pen knife and hand it over to him.

PW20 mentioned that when he opened the driver's door to hand over the pen knife, the deceased's upper body was already leaning towards the Accused's lap but that he was still sitting on the driver's side. He then handed over the unfolded pen knife to the Accused. However, instead of taking the pen knife, PW20 said the Accused with both his hands, grabbed PW20's own hands and pulled him up from the ground. While still holding PW20's hand, the Accused proceeded to stab the deceased's neck with the pen knife once. After that, the Accused released PW20's hands and went down from the lorry. As he was going down, PW20 saw the Accused pulling out the pen knife from the deceased's neck and stabbed him again a few more times. An extract of what PW20 said when he handed over the pen knife to the Accused is hereby reproduced...: "Semasa saya menghulurkan pisau lipat kepada Shafieq, Shafieq terus menggengam tangan saya yang memegang pisau lipat tersebut menggunakan keduadua tangan beliau. Kemudian dia menarik tangan saya bersama pisau dan mencucukan pisau it ke leher cina itu. Darah pun memercik dari leher cina itu. Selepas itu, baru lah Shafieq mencabut semula pisau lipat tersebut dan mencucuk beberapa kali lagi pisau lipat ke leher cina. Saya tidak tahu berapa kali dia cucuk." [85] We are of the view and agree with the submission of the learned Deputy Public Prosecutor that whether the position of the deceased's head was leaning on the right shoulder of the appellant or on the laps of the appellant when PW20 handed over the pen knife to the appellant and further whether PW20 was able to estimate the distance between the door next to the passenger's seat and the door next to the driver's seat are immaterial and it did not alter the material evidence of PW20 that PW20 has witnessed how the appellant had attacked the deceased using an iron bar while both the appellant and the deceased were inside the lorry and the appellant had used a pen knife held by him and stabbed the deceased's neck repeatedly. [86] The appellant also contended that PW20 had confessed to PW8 that he had killed the deceased. On this point, the learned trial judge has also considered this issue in deciding that no weight is to be given to such evidence. The learned trial gave his reasoning at para [65] to [69] of his judgment. "65. On the evidence by PW8 when recalled on 26th November 2021 to the father of the Accused that PW20 had admitted to him that he was the one who killed the deceased, I find it to be nothing more than an afterthought and wholly unsafe to accord any weight as it was only presented 3 days after he had given his evidence where in his earlier evidence, he denied that PW20 ever confessed to him and to PW7 eventhough he was subjected to vigorous cross examination by the Defence. Why did PW8 not mention about PW20's confession to him when he gave his evidence on $ 2 3 ^{rd} $ November 2021 having had the opportunity to do so. Further, why did PW8 not mention the same to the police when he was remanded together with PW7 and PW20. What made him suddenly change his mind when in his earlier evidence he confirmed that he knew only about the disposal of the lorry and nothing else. He also confirmed the version of PW7 and PW20 that it was the Accused who had instructed them to dispose the lorry and also the payment they received for towing the said lorry. There was no evidence of any threat on his life by PW20. Therefore, based on the discrepancy in the evidence of PW8 adduced before me and the surrounding circumstances of the case, I can only infer from his change of heart that it is more probable than not that something could have happened between the $ 2 3 ^{rd} $ and $ 2 6 ^{th} $ of November 2021 that made PW8 suddenly remember what PW20 had allegedly admitted to him. The fact that PW8 suddenly became so knowledgeable creates a strong suspicion in my mind that his evidence on $ 2 6 ^{th} $ November 2021 may not be true as it is totally inconsistent with his own evidence on the $ 2 3 ^{rd} $ November 2021, the evidence of PW7 and also the circumstances of the case. If it is true that PW20 admitted to PW8 that he was the one who killed the deceased, PW8, as pointed out earlier, ought to have told the police when his statement was taken while under remand or at least when he testified in court earlier. Unfortunately, no reason was given for the inaction.

When PW8 was recalled on 26th November 2021, I also had the opportunity of observing his demeanor when giving evidence in court and from my observation, he looked very depressed and even had teary eyes while narrating about PW20's alleged confession as compared to when he was giving evidence on 23rd November 2021. Although his conduct could be interpreted either way, I can only take it to mean that he was depressed for reasons best known to him. Be as it may, as there was no impeachment done to expunge the evidence, I accept the evidence of PW8.

However, eventhough I accept the evidence of PW8 in respect of the alleged confession by PW20, I attach no weight to it for the reasons that I have adumbrated above and the fact that PW8 and PW7 in cross examination had earlier denied that PW20 had allegedly told them that he killed the deceased.

Notwitstanding that, I find no sufficient reason to reject the whole of his evidence eventhough he was hostile to the prosecution. The court can still rely on parts of his evidence if the court is satisfied that they are the truth. See Sarasdawathaamma v bhad Pamma AIR (1970) Mys. 157, Bhagwan singh v State of Haryana AIR (1976) SC 202. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other. See PP v Mikhail Tan Abdullah [2019] 9 MLJ 530. The court must therefore carefully scrutinize the evidence of PW8 in its entirety and consider which part of his evidence the court should accept.

After considering the evidence of PW8 in its entirety, I accept his earlier version given on the 23 $ ^{rd} $ November 2021 as I find it to be consistent with the credible evidence of the other prosecution witnesses." [87] In an attempt to shy away from liability against the charge, the learned counsel for the appellant also took issue on the presence of PW20's blood on the headscarf or head cover (P147) alleging that PW20 had a cut in his finger when he stabbed the deceased. [88] On this issue, the learned trial judge found that PW20 had explained the reason why his blood was present on P147 and he had accepted such explanation by saying that the blood on the headscarf was not what the appellant had claimed. The relevant parts of the learned trial judge's judgment are reproduced below: "83. Apart from the issues raised by the Defence in his submission of no case to answer, the Defence had also raised the issue of the presence of PW20's blood on the headscarf (P147). The Defence alleged that the blood on the headscarf is as a result of a cut in his finger when he allegedly stabbed the deceased. This was denied by PW20 and in reply clarified the presence of his blood on the headscarf as follows: "Q: In Q 225, Q 226 and Q 227 the lawyer said you had accidentally cut the tip of your right-hand ring finger because you stabbed the Chinese man. That's why there was blood in the headcover. You disagree that's the reason why your blood is in the headcover. Can you clarify how your blood is in the headcover? A: Semasa mahu keluarkan lori daripada terkandas, Shafieq (the Accused) suruh saya tarik lori itu dan ikat tali daripada lori pergi ke Myvi, sebab itulah tangan saya luka. Sebab kain yang Shafieq pakai tutup muka, dia bagi saya sebab tangan saya luka, dia suruh lap."

Having considered the explanation by PW20, in light of the totality of the evidence adduced by the Prosecution, I accept his evidence that the blood on the headscarf was not what the Accused had claimed." [89] The next issue is with regard to the appellant's contention that it was PW20 directions that the clothes belonging to PW20 and the appellant to be burnt at the Esplanade and not the appellant. This contention is misconceived according to the learned Deputy Public Prosecutor because it is contrary to the evidence before the Court. According to PW20, he saw the blood on the appellant's shirt and pants and it was the appellant who instructed PW20 to give all their shirts and pants to be placed in a plastic trash and be burnt. PW20 stated that the deceased's blood was on their clothes and was burned by the appellant at the Esplanade. He witnessed the appellant burning all the clothes at the Esplanade. The learned Deputy Public Prosecutor further submitted that it was also misconceived on the appellant's contention that it was PW20 who instructed PW7 and PW8 to dispose of all the items. On the role of PW7, it was the appellant who called PW7 on 29.6.2019 to help him to remove the lorry that was stuck on PW7's land and it wasn't PW20 who made the call. PW7 had been instructed by the appellant to bring the lorry to his house and PW7 and PW20 were further instructed to disassemble the lorry into small parts and the small parts were to be sold. PW7 received money from the appellant for doing the job. On the role of PW8, he came to assist PW7 to remove the lorry that was stuck on PW7's land and was paid money by the appellant too. There was no evidence from PW8 that he received instruction from PW20 regarding the removal of the lorry that was stuck on PW7's land. [90] Based on the overwhelming evidence as submitted by the learned Deputy Public Prosecutor to point that it was the appellant who burnt the clothes belonging to PW20 and the appellant, we find that the appellant's contention on this issue has no merit. [91] On the contention by the appellant that the iron bar which was used to hit the deceased never existed due to the inconsistencies of PW20's evidence on the exact location where the iron bar was thrown by him. The learned Deputy Public Prosecutor submitted that the fact that the iron bar could not be found either on the dry ground or in the river does not mean that the appellant did not use the iron bar to hit the deceased person. Based on the evidence given by PW15, PW20 only informed him the place where he threw the iron bar was at the bushes near the residential estate at Tukau and when he led the police to the area, he only pointed to the place as shown in the photographs in Exhibit P8 which point to the area in general which could be at the bushes, in the river or on the ground across the river. In any event, the learned trial judge had made a finding of fact and came to the right conclusion that PW20 saw the appellant hit the deceased's head with an iron bar. The same iron bar was kept by the appellant inside a plastic bag after the murder and was later thrown out by PW20 as instructed by the appellant to PW20. [92] In the appellant's final attempt to discredit PW20, it was argued that PW20 had misled PW15 into believing that the trousers and t-shirt (P66 and P67) found in the bedroom of PW20's house were the clothes he had worn on that day of murder which had no bloodstains, to distance himself from the murder. However, the learned Deputy Public Prosecutor refuted this contention, clarifying that the evidence established P66 and P67 were new clothes given by the appellant to PW20 immediately after the murder. It was further established that the clothes that both PW20 and the appellant had worn, which had the deceased's blood on them, were burned by the appellant at the Esplanade. PW20 testified during cross-examination that he received P66 and P67 after the murder took place at the appellant's house and never told PW15 that he wore P66 and P67 when the deceased was killed. Therefore, PW20 did not mislead PW15 if he ever informed him that he wore P66 and P67 on the day of the incident. Based on the Deputy Public Prosecutor's submission, we find no basis for the appellant's contention on this issue. [93] In the light of the reasonings given by the learned trial judge in his grounds of judgment who have had the audio visual of the testimony of PW20, we also find no basis to depart from the learned trial judge in accepting the credibility of PW20's evidence. Appeal against conviction [94] We find that the learned trial judge has carefully considered all evidence adduced both at the prosecution's stage as well as at the defence stage including the appellant's evidence and the evidence of his witnesses i.e. DW2 and DW3 as required by s.182A(1) of the Criminal Procedure Code. [95] We also find that learned trial judge did not err in law and facts when he decided that he does not believe the explanation or version of events given by the appellant. Having found the defence put forth by the appellant was one of denial which was not substantiated, the learned trial judge concluded that the defence had not raised any reasonable doubt on the case for the prosecution, thereafter sentenced the appellant to death by hanging to the neck until death in accordance with s.277 of the Criminal Procedure Code. [96] We therefore find that the conviction is safe and that the appellant's appeal against his conviction is without merit. Appeal against sentence [97] The learned Deputy Public Prosecutor urged for the death sentence imposed by the learned trial judge to be maintained as the murder committed by the appellant was well planned and organised. The manner in which the murder was committed was extremely savage, heinous, gruesome, cruel and brutal which shocks the collective conscience of the society, particularly in the Miri town. [98] On the other hand, the learned counsel for the appellant prayed for a custodial sentence instead of a death sentence with the following mitigations for this Court's consideration. [99] The appellant has reformed. The appellant is not a hardened criminal, in fact the appellant is a first offender. The appellant is now 32 years old. At the time of the offence the appellant was 27 years old. The appellant was arrested on 15.8.2019. [100] It was further submitted that the appellant has spent almost 5 years in prison. The appellant has been a model prisoner. His time in prison has not only reformed him in the sense that he has learnt that crime doesn't pay but it also has the desired deterrent effect. If the appellant is sentenced to imprisonment, he still has a chance to become a productive member of society. [101] The appellant is also not a hardcore criminal and as such he is not a continuing threat to society. The appellant was not a hired or serial killer and he did not dismember the body of the deceased. The crocodile did that after the body of the deceased was thrown into the river. A knife was used and not a firearm. [102] After the coming into force of the Abolition of Mandatory Death Penalty Act 2023 (Act 846), the Court now has the discretion whether to impose the death penalty on any person convicted of murder. While the taking of a human life by the act of killing is by all means equally heinous, we are of the view that the death penalty should only be reserved for the most exceptionally serious, foul, shocking murders that are callous to an almost unbelievable degree. In other words, with the change of law, the sentence of death should only be imposed in the rarest of rare cases where reform is not possible (see Bachan Singh v. The States of Punjab [1980] 2 SCC 684; [1980] Cri U 636, Machi Singh And Others v. State of Punjab [1983] AIR 957 and Deepak Rai v. State of Bihar [2013] 10 SCC 421). [103] We are of the view that the factual circumstances surrounding the murder of the deceased in the present case do not fall under the above category. [104] The appellant was a first-time offender. He was neither a hired nor a serial killer and he did not dismember the deceased's body. The dismemberment occurred as a result of being bitten by a crocodile. The prosecution did not produce any evidence to show that the appellant was a hardcore criminal incapable of reform and rehabilitation or an ongoing threat to society. Taking all these into account, it was our view, that a sentence of imprisonment of 33 years along with 12 strokes of whipping would be reasonable and appropriate. Conclusion [105] In the circumstances of this case, we find no appealable error had been committed by the learned trial judge either on the law or the facts, which would otherwise warrant appellate intervention. Accordingly, we affirm the decision of the learned trial judge on the appellant's conviction. [106] With regard to the sentence, based on our reasons above, we are minded to substitute the death sentence with imprisonment sentence of 33 years to take effect from 15.8.2019 and 12 strokes of whipping. The death sentence imposed by the learned trial judge is hereby set aside. [107] Our decision is unanimous that the appeal against conviction is dismissed and the appeal against the sentence is partly allowed and varied as detailed above. Dated: 6th January, 2025 (ALWI ABDUL WAHAB) JUDGE COURT OF APPEAL, MALAYSIA For the Appellant/Accused: Encik Ranbir Singh For the Respondent/Prosecution: [Messrs Ranbir S. Sangha & Co., Advocates] Tuan Afzainizam Abdul Aziz [Deputy Public Prosecutor, Attorney General's Chambers]