PP v Sauib Thandi & Anor [2020] MLRHU 1159

PP
v.
SUAIB THANDI & ANOR
High Court Malaya, Johor Bahru
Collin Lawrence Sequerah J
[Criminal Trial No: 45B-04-03/2017]
7 September 2020
Case(s) referred to:
Amathevelli P Ramasamy v. PP [2009] 1 MLRA 153; [2009] 2 MLJ 367; [2009] 3
CLJ 109 (refd)
Balachandran v. PP [2004] 2 MLRA 547; [2005] 2 MLJ 301; [2005] 1 CLJ 85;
[2005] 1 AMR 321 (refd)
Chan Chwen Kong v. PP [1962] 1 MLRA 32; [1962] MLJ 307 (refd)
Chang Kim Siong v. PP [1967] 1 MLRA 123; [1968] 1 MLJ 36 (refd)
Jayaraman & Ors v. PP [1982] 1 MLRA 20; [1982] 2 MLJ 306; [1982] CLJ 130
(refd)
Karam Singh v. PP [1967] 1 MLRA 416; [1967] 2 MLJ 25 (refd)
Khee Thuan Giap v. PP [2019] MLRAU 152 (refd)
Liza Ismail v. PP [1997] 2 SLR 454 (refd)
Looi Kow Chai & Anor v. PP [2002] 2 MLRA 383; [2003] 2 MLJ 65 ; [2003] 1
CLJ 734; [2003] 2 AMR 89 (refd)
Mat v. PP [1963] 1 MLRH 400; [1963] 1 MLJ 263 (refd)
Md Zainudin Raujan v. PP [2013] 3 MLRA 351; [2013] 3 MLJ 773; [2013] 4 CLJ
21; [2013] 3 AMR 480 (refd)
Mohd Fazli Azri Jamil v. PP [2014] 3 MLRA 108 (refd)
Parlan Dadeh v. PP [2008] 2 MLRA 763; [2008] 6 MLJ 19 ; [2009] 1 CLJ 717
(refd)
Prasit Punyang v. PP [2014] 1 MLRA 387; [2014] 4 MLJ 282; [2014] 7 CLJ 392
(refd)
Poh Weng Nam v. PP [2013] 5 MLRA 75; [2013] 4 CLJ 1096 (refd)
PP v. Azilah Hadri & Anor [2015] 1 MLRA 431; [2015] 1 MLJ 617; [2015] 1 CLJ
579; [2015] 1 AMR 641 (refd)
PP v. Dato' Seri Anwar Bin Ibrahim [1999] 1 MLRH 59; [1999] 2 MLJ 1; [1999] 2
CLJ 215; [1999] 2 AMR 2017 (refd)
PP v. Er Ah Kiat [1965] 1 MLRH 108; [1966] 1 MLJ 9 (refd)
PP v. Hashim Hanafi [2002] 4 MLRH 307; [2002] 4 MLJ 176; [2002] 4 MLJ 176;
[2003] 8 CLJ 555 (refd)
PP v. Magendran Mohan [2005] 1 MLRH 567; [2005] 6 MLJ 6; [2005] 3 CLJ 592
(refd)
PP v. Megat Sharizat Megat Shahrur [2012] 2 MLRA 710; [2011] 8 CLJ 893 (refd)
PP v. Mohd Radzi Abu Bakar [2005] 2 MLRA 590; [2005] 6 MLJ 393; [2006] 1
CLJ 457; [2005] 6 AMR 203 (refd)
PP v. Thenagaran Murugan And Another Appeal [2013] 3 MLRA 664; [2013] 3
MLJ 328; [2013] 4 CLJ 364; [2013] 3 AMR 105 (refd)
[2020] MLRHU 1159
PP
v. Suaib Thandi & Anor pg 1

PP v. Toh Ah Keat [1976] 1 MLRH 87; [1977] 2 MLJ 87 (refd)
Pulukuri Kottaya & Others v. Emperor AIR 1947 PC (refd)
Sabarudin Non & Ors v. PP [2004] 2 MLRA 441; [2005] 4 MLJ 37; [2005] 1 CLJ
466; [2005] 1 AMR 4 (refd)
Sainal Abidin Mading v. PP [1999] 1 MLRA 459; [1999] 4 MLJ 497; [1999] 4 CLJ
215; [1999] 4 AMR 4277 (refd)
Siew Yoke Keong v. PP [2013] 4 MLRA 99; [2013] 3 MLJ 630; [2013] 4 CLJ 149;
[2013] 3 AMR 202 (refd)
Sunny Ang v. PP [1965] 1 MLRA 38; [1966] 2 MLJ 195 (refd)
Suresh v. State of Uttar Pradesh AIR [2001] SC 1344 (refd)
Tham Kai Yau v. PP [1976] 1 MLRA 279; [1977] 1 MLJ 174 (refd)
Yii Soon Ho v. PP [2014] 5 MLRA 249; [2014] 5 MLJ 547 (refd)
Virsa Singh v. State of Punjab AIR [1991] SC 467 (refd)
Legislation referred to:
Criminal Procedure Code, ss 180(1), (3), 182A (2)
Evidence Act 1950, ss 8, 24, 27
Penal Code, ss 34, 299, 300(a), (b), (c), (d), 302
Other(s) referred to:
Augustine Paul in his seminal work, Evidence Practice and Procedure (Fourth
Edition 2010) at p 311
Counsel:
For the prosecution: Faizal @ Amrin Noor Hadi (together with Nor Iffa Zarillah
Abd Rahman and Noor Farhana Adham); Attorney General's Chambers
For the 1st respondent: Anita Vijaya Rajah; M/s Gan & Zul
For the 2nd respondent: CS Lim; M/s Lim Wong & Partners
[Order accordingly.]
JUDGMENT
Collin Lawrence Sequerah J:
A) Introduction
[1] Both the accused above named were charged with the following:
"Bahawa kamu bersama-sama diantara jam lebih kurang 11.30 malam
pada 29 September 2016 hingga jam lebih kurang 4.00 pagi pada 30
September 2016, bertempat di padang bola, blok 2, Jalan Mawar,
Pasir Gudang di dalam daerah Johor Bahru, dalam negeri Johor
Darul Takzim, telah melakukan bunuh dengan menyebabkan
kematian terhadap XXXX XXX XXXXXXX (No. Sijil Kelahiran:
XXXXXXX/XX), dan dengan itu kamu telah melakukan suatu
kesalahan yang boleh dihukum dibawah s 302 Kanun Keseksaan
dibaca bersama dengan s 34 Kanun yang sama."
pg 2
PP
v. Suaib Thandi & Anor [2020] MLRHU 1159

B) Pertinent Facts
[2] The facts as presented by the prosecution, disclose that SP9 on 29
September 2016 at about 11.00pm arrived at a park at Block 2, Taman Mawar
alone in a Perodua Kancil to met up with a friend.
[3] At the same time, the deceased made a telephone call to SP9 to ask where
the latter was and not long after, the deceased arrived at the park where SP9
was waiting for his friend.
[4] While the deceased was looking at his hand phone, the first accused, who
was also known as 'Fogi' and the second accused, known as 'Buhak' who were
both clad in sarongs, walked slowly while approaching them.
[5] SP9 identified the first accused based upon his taller frame as compared to
the second accused. All of a sudden the deceased cried out "Pak lari". At that
time SP9 saw the second accused take out a "parang" from his sarong although
he later said he was not quite sure where the second accused took out the
parang from.
[6] SP9 said that he saw the first accused also take out a parang. At that time
SP9 told the deceased to run. SP9 ran toward the right direction toward some
nearby shops while the deceased ran towards the left in the direction of a
football field.
[7] As soon as SP9 reached the shops, he pleaded for his friends help to call the
police. Not long after, SP9 said that a man on a motorbike asked him "bukan
kau punya kawan tu yang gaduh sana?" translated as "is that not your friend
who is fighting there?".
[8] Upon hearing this SP9 proceeded accordingly and within 10 minutes
reached the area near the football field where he found many people there
including the police.
[9] After he was allowed access into the football field, SP9 saw a body in a
supine position in an unconscious state and with wounds to the face and hands
which he identified to be the deceased.
[10] The deceased was taken in an ambulance to the Sultan Ismail Hospital
("HSI"). SP9 then fainted and regained consciousness at around midnight on
30 September 2016. SP9 said that he did not go to the HSI because he could
not bear to see the injuries and the condition of the deceased. SP9 also did not
attend the post mortem for the same reason.
[11] SP9 said that he knew the two accused because he lived near to the area
where both accused lived.
[12] SP16 said that on 30 September 2016 at around 1.00am., he received
instructions from the investigating officer (SP17) to go to the scene of the
[2020] MLRHU 1159
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incident. While there, SP16 saw a body covered with cloth. He also saw
members of the public and a team from the Police Forensics Unit there on
duty.
[13] At around 6.30am. that day, SP15 and SP16 together with a team from
the Criminal Investigation Division (JSJ) Seri Alam went to the address at 02-
03, Block 5, Taman Mawar, Pasir Gudang and knocked on the door of the
house.
[14] After about 10 minutes, a female with Philippines citizenship opened the
door. SP16 introduced himself as a police officer and entered the house
together with his team.
[15] SP15 and SP16 saw a Filipino man saying his prayers in the living room.
SP15 and SP16 and his team continued to search the whole house. While
conducting an inspection of the toilets, SP15 and SP16 saw a pair of legs
dangling down from behind the water tank in the toilet located on top near the
ceiling.
[16] SP15 and SP16 instructed the person hiding at the back of the water tank
to come down. When the person refused to do so, SP15 and SP16 and the
police team pulled the legs of the person. A struggle ensued in the process.
[17] When the police team managed to bring the person down from the water
tank, they discovered there were in fact two persons hiding there. Both SP15
and SP16 identified the two men as the first and second accused respectively in
court.
[18] The police proceeded to arrest all the occupants of the said house and
brought all of them to the IPD Seri Alam for further investigation. SP15
lodged a police report Pasir Gudang no: 8532-8533/16 (P35).
[19] All the occupants of the said house as well as both accused were later
found to not have any valid travel documents to reside in Malaysia and
believed to be citizens of the Philippines.
[20] According to SP15 and SP16, as a result of interrogation carried out
separately, the first and second accused gave information of where some
clothing's and weapons were kept.
[21] At around 8.45am., based on the information given by the accused
persons, SP15 and SP16 together with a team of police and guided by the first
and second accused went again to the premises at 02-03, Block 5, Taman
Mawar, Pasir Gudang where they were shown the clothing's used by the first
and second accused during the incident.
[22] Several clothing's and other personal items belonging to both accused
were seized from the said premises by SP15 and SP16 and the police team as
listed in Pasir Gudang Report No: 8535/16 (P36).
pg 4
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[23] At around 9.30am., a police team guided by the first and second accused
went to a football field located nearby the house at 02-03, Block 5, Taman
Mawar and proceeded to show the place where two parangs were hidden
under some dried leaves under a tree located there.
[24] The weapons seized were brought back to the IPD Seri Alam for further
investigation. A police report Pasir Gudang Report No: 8536/16 (P45) was
lodged by SP16 in connection with the discovery of the weapons.
[25] SP15 and SP16 also lodged police reports, namely, P37 and P44 in
connection with the information received from the first and second accused
which lead to the discovery of the clothing's and the weapons.
[26] SP17, the investigating officer of the case (IO), said that on 30 September
2016 at around 12.51 hours, he received information from the staff at the
inquiry office of the Pasir Gudang police station regarding a murder which
occurred at the football field at Block 2, Taman Mawar.
[27] When SP17 visited the scene, he saw several MPV vehicles, members of
the public and police personnel there. SP17 said that the scene was cordoned
off by the police. SP17 said that he saw on the field a fully clothed body
covered in blood with several slash wounds on the hands and head.
[28] A sling bag believed to belong to the deceased containing his Birth
Certificate (P26) was found inside. SP17 then contacted the Forensics Unit of
the PDRM and instructed his police team to obtain information at the scene
until the Forensic Unit arrived which was around 30 minutes later.
[29] SP17 said that he received the case exhibits from the officers from the
Forensics Unit and from SP6, SP15, SP16 and SP10. All the exhibits were
later sent to the Chemistry Department for analysis.
[30] A post mortem was carried out by SP14 with SP10 in attendance on the
30 September 2017 at around 3.35 pm. The results of the post mortem revealed
the cause of death to be due to "slash wound to the head". These results were
also contained in a Post Mortem Report (P34).
C) Duty Of Court At The End Of The Prosecution Case
[31] The duty of the court at the end of the prosecution case is set out in s
180(1) of the Criminal Procedure Code (CPC) which stipulates that when the
case for the prosecution is concluded the Court shall consider whether the
prosecution has made out a prima facie case against the accused.
[32] The cases of Public Prosecutor v. Dato' Seri Anwar Bin Ibrahim [1999] 1
MLRH 59; [1999] 2 MLJ 1; [1999] 2 CLJ 215; [1999] 2 AMR 2017, Looi Kow
Chai & Anor v. PP [2002] 2 MLRA 383; [2003] 2 MLJ 65 ; [2003] 1 CLJ 734;
[2003] 2 AMR 89, Balachandran v. PP [2004] 2 MLRA 547; [2005] 2 MLJ 301;
[2005] 1 CLJ 85; [2005] 1 AMR 321 and PP v. Mohd Radzi Abu Bakar [2005] 2
MLRA 590; [2005] 6 MLJ 393; [2006] 1 CLJ 457; [2005] 6 AMR 203
[2020] MLRHU 1159
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respectively lay down the proposition that at the end of the case for the
prosecution, their evidence must be subject to maximum evaluation in order to
determine whether a prima facie case is made out.
[33] In Looi Kow Chai v. Public Prosecutor (supra), the Court of Appeal held:
"It therefore follows that there is only one exercise that a judge sitting
alone under s 180 of the CPC has to undertake at the close of the
prosecution case. He must subject the prosecution evidence to
maximum evaluation and to ask himself the question: if I decide to
call upon the accused to enter his defence and he elects to remain
silent, am I prepared to convict him on the totality of the evidence
contained in the prosecution case? If the answer is in the negative then
no prima facie case has been made out and the accused would be
entitled to an acquittal".
C) Analysis Of The Prosecution Case
[34] Section 302 prescribes the punishment for whoever commits murder.
Murder itself is defined in s 300 of the Penal Code.
The Difference Between Culpable Homicide And Murder
[35] In evaluating whether the prosecution has successfully made out a prima
facie case against the accused for murder under s 302, it is important to first
distinguish between the offence of culpable homicide under s 299 and murder
under s 300.
[36] This is because all murder is culpable homicide but not all culpable
homicide is necessarily murder. It is therefore imperative for the court to
appreciate the fine but discernible difference between the two in order to make
the correct finding as to whether or not the evidence disclosed reflects the
offence of culpable homicide not amounting to murder or culpable homicide
amounting to murder.
[37] Section 299 of the Penal Code defines the offence of culpable homicide as
follows:
"Whoever causes death by doing an act with the intention of causing
death, or with the intention of causing such bodily injury as is likely to
cause death, or with the knowledge that he is likely by such act to
cause death, commits the offence of culpable homicide."
[38] Section 300 of the Penal Code describes murder in the following terms:
"Except in the cases hereinafter excepted culpable homicide is murder-
a) If the act by which the death is caused is done with the
intention of causing death;
pg 6
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b) If it is done with the intention of causing such bodily injury
as the offender knows to be likely to cause the death of the
person to whom the harm is caused;
c) If it is done with the intention of causing bodily injury to
any person, and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death; or
d) If the person committing the act knows that it is so
imminently dangerous that it must in all probability cause
death, or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
causing death, or such injury as aforesaid."
[39] Section 300 goes on to set out a number of exceptions which operate to
reduce murder to culpable homicide not amounting to murder. These
exceptions are provocation, exceeding private defence, exceeding the powers
of a public servant, sudden fight and consent.
[40] From a perusal of both ss 299 and 300, it is clear that some cases of
culpable homicide will amount to murder while some will be classified as
culpable homicide not amounting to murder.
[41] Because of the similarity in wording, the distinction between the two is so
fine as to be almost indiscernible. This court is therefore grateful for the
assistance of high authority that has emanated from one of the most
distinguished legal minds in this country.
[42] In the case of Tham Kai Yau v. Public Prosecutor [1976] 1 MLRA 279;
[1977] 1 MLJ 174, Raja Azlan Shah J (as His Royal Highness was then) held
as follows:
"....A comparison that frequently arises in the application of ss 299
and 300 is the tenuous contention that s 299 is not a substantive
offence and therefore is either murder or culpable homicide according
to whether or not one of the exceptions to s 300 apply, and if by
reason of the absence of the necessary degree of mens rea an offence
does not fall within s 300, it cannot be one of culpable homicide not
amounting to murder.....but would amount to causing grievous hurt.
In our view, the correct approach to the application of the two sections
is this. Section 299 clearly defines the offence of culpable homicide.
Culpable homicide may not amount to murder (a) where the evidence
is sufficient to constitute murder, but one or more of the exceptions to
s 300, Penal Code apply, and (b) where the necessary degree of mens
rea specified in s 299 is present, but not the special degrees of mens rea
referred to in s 300, Penal Code. We would like in this connection to
express the need to bear in mind that all cases falling under s 300
Penal Code must necessarily fall within s 299, but all cases falling
within s 299 do not necessarily fall under s 300...."
[2020] MLRHU 1159
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[Emphasis Added]
[43] The case of Public Prosecutor v. Megat Sharizat Megat Shahrur [2012] 2
MLRA 710; [2011] 8 CLJ 893 echoed and quoted verbatim the relevant
excerpts in Tham Kai Yau (supra) and added:
"The first part of s 304, Penal Code covers cases which by reason of
the exceptions are taken out of the purview of s 300, clauses (1), (2)
and (3) but otherwise would fall within it and also cases which fall
within the second part of s 299, but not within s 300, clauses (2) and
(3). The second part of s 304, Penal Code covers cases falling within
the third part of s 299 not falling within s 300, clause (4).
Thus, if death is an imminent result, it falls under s 300. If on the other
hand, that death is a likely result, it falls under s 299. It would be safe
to conclude that all cases under s 300 would fall under s 299 as well,
but this is not necessarily so vice versa. "
[Emphasis Added]
[44] See also Poh Weng Nam v. Public Prosecutor [2013] 5 MLRA 75; [2013] 4
CLJ 1096, Public Prosecutor v. Thenagaran Murugan And Another Appeal
[2013] 3 MLRA 664; [2013] 3 MLJ 328; [2013] 4 CLJ 364; [2013] 3 AMR 105
and Mohd Fazli Azri Jamil v. Public Prosecutor [2014] 3 MLRA 108 which
espouses the same principles.
[45] Having said all of this, the distinction between s 299 and that under s 300
of the Penal Code are defined in very similar terms so as to render it fraught
with practical difficulties in deciding whether a case falls under s 299 or s 300
including which of the limbs are applicable.
[46] From a distillation of the abovementioned authorities however, the
position appears to be as follows. The difference between s 299 and s 300 lies
in the degree of probability or likelihood that death would result from a
particular act ie the degree of risk to human life. If death is a likely result of the
act, it is culpable homicide, if it is the most probable result, it is murder. If
death is imminent, it is also murder.
[47] Culpable homicide may not amount to murder where the evidence is
sufficient to constitute murder, but one or more of the exceptions to s 300
apply, for example provocation, right of private defence and sudden fight and
where the necessary degree of mens rea in s 299 is present but not the special
degrees of mens rea referred to in s 300 of the Penal Code.
[48] Bearing the above in mind, it is now necessary to consider the ingredients
of the offence of murder which the prosecution must establish in order to make
out a prima facie case.
[49] The necessary ingredients to be proven in a charge of murder under s 302
pg 8
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Penal Code.
[50] The necessary ingredients that must be proven by the prosecution in a
charge of murder was set out in the Court of Appeal case of Sainal Abidin
Mading v. PP [1999] 1 MLRA 459; [1999] 4 MLJ 497; [1999] 4 CLJ 215;
[1999] 4 AMR 4277, and in the context of that case were expressed to be as
follows:
"The ingredients are:
[1] That Isnidil bin Rasin is dead;
[2] That Isnidil bin Rasin died as a result of injuries sustained
by him;
[3] That the injuries of Isnidil bin Rasin were caused or the
result of the act of the appellant;
[4] That in inflicting the injuries upon Isnidil bin Rasin, the
appellant either:
(a) caused them with the intention of causing death;
or
b) caused them with the intention of causing such
bodily injuries as the appellant knew to be likely to
cause the death; or
c) caused them with the intention of causing bodily
injuries and such bodily injuries were sufficient in the
ordinary course of nature to cause death."
i) The Deceased Amar Bin Miralde Is Dead
[51] SP14 who performed the post mortem confirmed the death of the
deceased. SP9 also identified the deceased albeit from photographs shown to
him in court. This was sufficient to prove the first ingredient of the offence.
ii) The Deceased, Amar Bin Miralde Died As A Result Of Injuries Sustained
By Him
[52] SP14 testified that there were 2 wounds to the head region of the deceased
that caused his death. This was sufficient for the prosecution to prove this
ingredient of the offence.
iii) The First And Second Accused Caused The Injuries That Led To The
Death Of The Deceased
[53] It is evident from the prosecution narrative of the case that there were no
eye witnesses to the killing of the deceased. The evidence against the accused
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persons are therefore circumstantial in nature.
Circumstantial Evidence
[54] Where the evidence is circumstantial, certain principles of law are called
into operation. The following cases afford useful guidelines as to what they
are.
[55] In the case of Public Prosecutor v. Azilah Hadri & Anor [2015] 1 MLRA
431; [2015] 1 MLJ 617; [2015] 1 CLJ 579; [2015] 1 AMR 641, it was held:
"The prosecution's case rests substantially or entirely on circumstantial
evidence. It is trite that direct evidence of the commission of the
offence is not the only source from which a trial court can draw its
conclusion prior to a finding of guilt. Conviction can be secured based
on circumstantial evidence provided that:
(a) the circumstances from which the conclusion of guilt is to
be drawn has been established;
(b) the facts so established is consistent with the hypothesis of
the guilt; and
(c) circumstances should be of a conclusive nature in that the
chain of evidence is complete so as to exclude any conclusion
consistent with the accused person's innocence (See
Magendran Mohan v. PP [2012] 5 MLRA 333; [2011] 6 MLJ
1; [2011] 1 CLJ 805;[2011] 2 AMR 680, Mazlan Othman v. PP
[2013] 1 MLRA 568; [2013] 1 CLJ 750; [2013] 1 AMR 615;
Dato' Mokhtar Hashim & Anor v. PP [1983] 1 MLRA 7; [1983]
2 MLJ 232 ; [1983] CLJ (Rep) 101; Chan Chwen Kong v.
Public Prosecutor [1962] 1 MLRA 32; [1962] 1 MLJ 307).
It is worth noting that the court had this to say in PP v. Letchumanan
Krishnan [2007] 5 MLRH 611; [2008] 3 MLJ 290:
It is axiomatic under our case-law, and we cite the principle
repeatedly, that circumstantial evidence alone may be
sufficient to support a conviction for murder since the law
makes no distinction between circumstantial evidence and
direct evidence and, if circumstantial evidence is used to
provide for a conviction; it must be inconsistent with any
other hypothesis than that of guilt of the accused. (See eg,
Kartar Singh & Anor v. Rex [1952] 1 MLRA 340 [1952] 2 MLJ
85; Idris v. PP [1960] 1 MLRA 265; [1960] MLJ 296, Sunny
Ang v. PP [1965] 1 MLRA 38; [1966] 2 MLJ 195; Karam Singh
v. PP [1967] 1 MLRA 416; [1967] 2 MLJ 25; Chang Kim Siong
v. PP [1967] 1 MLRA 123; [1968] 1 MLJ 36; PP v. Hanif
Basree Abdul Rahman [2006] 2 MLRA 641; [2007] 2 MLJ 320;
[2007] 2 CLJ 33; and Juraimi Jussin v. PP [1997] 2 MLRA
pg 10
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342; [1998] 1 MLJ 537; [1998] 2 CLJ 383).
Faizal Ali J when delivering the judgment of the Supreme Court in
Ram Avtar v. The State (Delhi Administration) AIR [1985] SC 1692,
had occasion to state:
At the very outset we might mention that circumstantial
evidence must be complete and conclusive before an accused
can be convicted thereon. This, however, does not mean that
there is any particular or special method of proof of
circumstantial evidence. We must, however, guard against the
danger of not considering circumstantial evidence in its proper
perspective, eg, where there is a chain of circumstances linked
up with one another, it is not possible for the court to truncate
and break the chain of circumstances. In other words where a
series of circumstances are dependent on one another they
should be read as one integrated whole and not considered
separately, otherwise the very concept of proof of
circumstantial evidence would be defeated.
The above cases have clearly laid down certain guidelines, whereupon
in the absence of direct evidence, the prosecution may resort to
adducing circumstantial evidence to discharge its burden. Crimes are
usually committed in secret and under condition where concealment is
highly probable. 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.
In this case not only was the heinous crime committed at a secluded
place but the deceased's body was blasted beyond recognition. Only
fragments of bones were found."
[Emphasis Added]
[56] The Court of Appeal case of Yii Soon Ho v. Public Prosecutor [2014] 5
MLRA 249; [2014] 5 MLJ 547 considered the following leading authorities on
the subject of circumstantial evidence, namely, Sunny Ang v. Public Prosecutor
[1965] 1 MLRA 38; [1966] 2 MLJ 195; Jayaraman & Ors v. Public Prosecutor
[1982] 1 MLRA 20; [1982] 2 MLJ 306; [1982] CLJ 130; Public Prosecutor v.
Magendran Mohan [2005] 1 MLRH 567; [2005] 6 MLJ 6; [2005] 3 CLJ 592;
Chan Chwen Kong v. Public Prosecutor [1962] 1 MLRA 32; [1962] MLJ 307;
Karam Singh v. Public Prosecutor [1967] 1 MLRA 416; [1967] 2 MLJ 25; and
Chang Kim Siong v. Public Prosecutor [1967] 1 MLRA 123; [1968] 1 MLJ 36.
[57] The illuminating judgment of Varghese George JCA in Yii Soon Ho v.
Public Prosecutor (supra), opined that the combined effect of all these cases was
that a conviction based on circumstantial evidence was good in law if the
cumulative effect of all evidence lead to an irresistible conclusion that it was
the accused who committed the crime. This is what His Lordship said:
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"Suffice it here to reproduce some guiding excerpts from the aforecited
authorities, to support that position.
In Sunny Ang's case (where the deceased's body was never found) the
Federal Court noted:
"...The second question to which I must draw your attention is
that in this case, depending as it does on circumstantial
evidence, is whether the cumulative effect of all the evidence
leads you to the irresistible conclusion that it was the accused
who committed this crime. Or is there some reasonably
possible explanation such, for example - was it accident? "
Thomson CJ's comments in Chan Chwen Kong were in the following
terms:
"...where the evidence is wholly circumstantial what has to be
considered is not only the strength of each individual strand of
evidence but also the combined strength of these strands when
twisted together to make a rope. The real question is: is that
rope strong enough to hang the prisoner?"
In Karam Singh, HT Ong FJ stated:
"...In a case where the prosecution relies on circumstantial
evidence, such evidence must be inconsistent with any other
hypothesis than that of the guilt of the accused..."
And in Chang Kim Siong, the Federal Court emphasised that:-
"The onus on the prosecution where the evidence is of a
circumstantial nature is a very heavy one and that evidence
must point irresistibly to the conclusion of the guilt of the
accused. If there are gaps in it, then it is not sufficient."
[Emphasis Added]
[58] It is thus clear that although a conviction can be sustained by reliance on
circumstantial evidence, it must admit of no other possibility other than that it
was the accused or accused persons who committed the murder.
[59] It is also clear that where the evidence is of a circumstantial nature, the
burden upon the prosecution is a very heavy one and that evidence must point
irresistibly to the conclusion of the guilt of the accused and if there are gaps in
it, then it is not sufficient.
[60] SP9 testified that on 29 September 2016 at around 11pm. or so, he went to
meet a friend Taman Mawar Flat's Block 2. While there SP9 said that his son,
the deceased, also came by. While they were there, the deceased saw the first
pg 12
PP

and second accused walking in their direction and both were holding parangs.
[61] At that juncture, the deceased cried out "Pak lari" indicating to his father
to run. Both SP9 and the deceased were subsequently chased by the accused
persons. SP9 knew the accused persons by their nicknames of "Buhak" and
"Fogi". Buhak was identified by SP9 as the second accused while Fogi was
identified by SP9 as the first accused.
[62] The evidence of SP9 also showed that he and the deceased ran in opposite
directions before the deceased was found lying covered in blood with several
slash wounds inflicted on him. SP9 also said that someone on a motorcycle
passed by and asked him if his friend was fighting over there.
[63] SP9 also admitted that he knew both accused persons. In cross-
examination, SP9 also admitted that he knew someone named Indani who
was the uncle of the first accused and Indani's son named Toto.
[64] SP9 during cross-examination admitted that while there was an earlier
issue concerning Indani and Toto disturbing his daughter, the problem was
resolved already.
[65] SP9 denied going to Block C with the deceased in order to seek revenge
on the first accused as a result of the earlier problem and that he said to the
accused that if he could not "get" Indani and Toto, the accused persons would
suffice.
[66] SP9 denied that because the problem he had with Indani and Toto had
not been settled yet, he went there that night in order to resolve it. Therefore
there was no merit in the submission by learned counsel of the accused that the
IO had carried out no investigations whether the said uncle of the first accused
and his son were involved in the case nor indeed was there any necessity on
the part of the IO to ascertain the residence of PW9 or the deceased for the
reasons stated.
[67] Although the thrust of the defence suggestions during cross examination
was that SP9 and the deceased had planned on going to the block of flats that
night in order to get even with the first accused over the problem regarding
SP9's daughter, SP9 denied this.
[68] The circumstances show that it was ultimately the deceased who finally
ended up dead with several slash wounds. SP9's evidence was that both
accused were armed with parangs.
[69] SP9's evidence also was that when both accused gave chase, he and the
deceased ran in opposite directions. SP9 also testified that a passing motorist
asked him if his friend was fighting.
[70] The circumstances unmistakably show that the accused persons were the
aggressors and this resulted in the death of the deceased.
[2020] MLRHU 1159
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[71] The post mortem conducted by Dr Rohaya Bte Shahar (SP14) showed
that there were more than 10 slash wounds to the deceased including to the
head of the deceased. The cause of death was confirmed by SP14 to be "slash
wound to the head".
[72] This showed that the deceased was the victim and not the aggressor as
suggested by the defence. The nature of the injuries leading to the deceased's
death also puts paid to the submission by learned counsel of the first accused
that the helmets found in the vicinity where the deceased's body lay in the field
was of any significance.
[73] Even if it were true that there were others present at the football field, this
was not however something that affected the quality of the prosecution
evidence, especially that given by PW9 who was categorical that it was the
accused persons who were responsible for the attack on the deceased and in
giving chase to him.
[74] One other factor that enabled the fair inference to be made that the first
and second accused was responsible for inflicting the fatal wounds on the
deceased was their conduct in deciding to seek refuge in the house of the
Filipino couple.
[75] Despite the submission of the defence that this was in order to hide from
PW9 and the deceased, from the circumstances, it was a more reasonable
inference that having inflicted the injuries to the deceased, they decided to hide
from the authorities to evade detection.
[76] The scuffle that ensued just prior to their arrests further served to
underscore this fact. Their conduct aforesaid therefore was also a relevant fact
against the first and second accused under s 8 of the Evidence Act 1950. See
also the case of Parlan Dadeh v. PP [2008] 2 MLRA 763; [2008] 6 MLJ 19 ;
[2009] 1 CLJ 717.
Information Leading To Discovery Under Section 27 Of The Evidence Act
1950
[77] Both SP15 and SP16 testified that after the arrests of the first and second
accused were made, they were interrogated separately. As a result of the
interrogation, both accused gave information that resulted in the discovery of
some of their clothing and also the discovery of weapons.
[78] SP15 also said that he communicated in Bahasa Malaysia with both
accused and with the couple from the house where they arrested the accused
persons and they understood him.
[79] SP16 testified that he together with Sergeant Razman and Corporal
Yuslin Hasrizal interrogated the second accused and the result of the
interrogation was that the second accused gave information regarding the
whereabouts of some clothing's worn by him and some weapons.
pg 14
PP

[80] At the end of the interrogation, SP16 and SP15 brought both accused to a
house at 02-03, Block 5. Both accused showed the team of police the clothing's
used by them during the incident.
[81] The police team discovered the clothing's in the living room of the said
house. SP15 then lodged a police report Pasir Gudang 8535/16 (P36) in
respect of the clothing's discovered. The seizure of the clothing belonging to
the first accused was the subject of a police report Seri Alam Report No:
10103116 (P38).
[82] According to SP15, the two accused then brought them to the middle of a
field at Taman Mawar at around 9.30am on 30 September 2016 where both
accused gestured using their face and hands to a spot.
[83] When the police proceeded to the spot shown by the accused, they
discovered under a pile of dried leaves two parangs, one of which had a sheath
while the other did not.
[84] Photographers were then instructed to take photographs of the place and
the items discovered.
[85] According to SP15, the first accused said "saya boleh tunjukan di mana
saya simpan pakaian dan senjata yang saya gunakan pada hari kejadian" or "I
can show you where I kept the clothing's and weapons I used during the
incident".
[86] I have however only taken into account the above wordings "saya boleh
tunjukan di mana saya simpan pakaian dan senjata" or "I can show you where
I kept the clothing's and weapons" for the purposes of s 27 of the Evidence Act
1950 ("EA") and not the words "yang saya gunakan pada hari kejadian" or "I
used during the incident" because I find that the additional words do not
distinctly relate to the discovery of the items recovered under s 27 EA.
[87] See Pulukuri Kottaya & Others v. Emperor AIR 1947 PC where Sir John
Beaumont said at p 70:
"In their Lordship's view it is fallacious to treat the 'fact discovered'
within the section as equivalent to the object produced; the fact
discovered embraces the place from which the object is produced and
the knowledge of the accused as to this, and the information given
must relate distinctly to this fact. Information as to past user, or the
past history, of the object produced is not related to its discovery in the
setting in which it is discovered. Information supplied by a person in
custody that 'I will produce a knife concealed in the roof of my house'
does not lead to the discovery of a knife; knives were discovered many
years ago. It leads to the discovery of the fact that a knife is concealed
in the house of the informant to his knowledge, and if the knife is
proved to have been used in the commission of the offence, the fact
discovered is very relevant. But if to the statement the words be added
'with which I stabbed A' these words are inadmissible since they do
[2020] MLRHU 1159
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not relate to the discovery of the knife in the house of the informant."
[Emphasis Added]
[88] The issue for consideration is whether such information which led to the
discovery of the weapons and clothings are admissible. Section 27 of the
Evidence Act 1950 ("EA") reads as follows:
Section 27. How much of 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 of that information, whether the
information amounts to a confession or not, as relates distinctly to the
fact thereby discovered may be proved.
[89] According to Augustine Paul in his seminal work, Evidence Practice and
Procedure (Fourth Edition 2010) at p 311, the following ingredients of s 27 of
Evidence Act 1950 needs to be fulfilled before it can be invoked:
a) The information must have been received from a person accused of
an offence.
b) Such person must have been in the custody of a police officer at the
time of giving the information.
c) A fact must be deposed to as having been discovered in
consequence of such information.
[90] Both the first and second accused have been charged with s 302 of the
Penal Code. This means that the first requirement has been fulfilled.
According to SP15 and SP16 both accused were arrested and in the police
custody when they were subjected to interrogation that resulted in them giving
the information. The second requirement was also thus fulfilled. As a result of
the information given, some clothing's and weapons were discovered and so
the third requirement was fulfilled.
[91] In Siew Yoke Keong v. Public Prosecutor [2013] 4 MLRA 99; [2013] 3
MLJ 630; [2013] 4 CLJ 149; [2013] 3 AMR 202, it was held:
"In the light of the authorities referred to, we hold that information
admissible under s 27 of the Evidence Act includes accused's
statement, or his act or conduct such as pointing out which leads
distinctly to the discovery of a fact. For such information to be
admissible in evidence, there is no duty on the prosecution to prove
the voluntariness of the information. Hence it is not necessary to
conduct a trial within a trial to determine the voluntariness of the
information........"
pg 16
PP

[Emphasis Added]
[92] Therefore, the information given by the first and second accused as well as
their conduct in leading the police to the house where the clothing's were
discovered as well as the act of leading the police to the football field and
gesturing with their face and hands to the place where the weapons were
concealed amounted to information leading distinctly to discovery of a fact,
namely, the clothing's and the weapons within the meaning of s 27 of the EA.
Police Reports (P37) And (P44) Were Concoctions
[93] Learned counsel for the first accused submitted that in respect of the
statements made under s 27 EA, the police reports lodged by PW15 (P37) and
by PW16 (P44) cannot be accepted as corroborative evidence of the statements
made leading to discovery.
[94] The reason given was that the police reports (P37) and (P44) respectively
were concocted by SP15 and PW16 because a perusal of these reports will
reveal that although they were made separately by two different police officers
at different times, the wordings in these reports, aside from the time, name of
the police officers and the name of the accused, were identical.
[95] It was also submitted that these reports were not made as soon as the
alleged statements were made but after the alleged weapons were found and
for this reason, it was submitted that exhibit P37 and P44 were therefore
concocted and should not be adduced as corroborative evidence of the oral
testimony of PW15 and PW 16 under s 27 of the EA.
[96] The Federal Court in Amathevelli P Ramasamy v. Public Prosecutor [2009]
1 MLRA 153; [2009] 2 MLJ 367; [2009] 3 CLJ 109 held that the information
received under s 27 EA needs to be proved by way of oral evidence and any
contemporaneous written record of it only amounts to corroboration.
[97] The case of Amathevelli referred to the case of Public Prosecutor v. Hashim
Hanafi [2002] 4 MLRH 307; [2002] 4 MLJ 176; [2002] 4 MLJ 176; [2003] 8
CLJ 555 which held that information under s 27 is not required by law to be in
writing and the absence of it cannot render the oral evidence given in court to
be inadmissible. Augustine Paul J (as he then was) said:
"Information given under s 27 is not a matter that is required by law to
be in writing so as to be governed by ss 91 and 92 of the Act.
Therefore the information must be proved by oral evidence pursuant
to s 60(b) of the Act. Thus a written record of the information given by
the accused will not by itself be substantive evidence of its contents
and it is what the witness deposes in court as having been said by the
accused that will be evidence (see Bhagirath). Where the information
is contained in a police diary it can only be used for the purpose of
refreshing memory (see Public Prosecutor v. Er Ah Kiat [1965] 1
MLRH 108; [1966] 1 MLJ 9). Where it is contained in any other
[2020] MLRHU 1159
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document it can, at the highest, serve only as evidence of
corroboration. It is on this basis that a report prepared by a chemist
pertaining to his analysis of drugs cannot be tendered as substantive
evidence of its contents but only as corroboration of his oral evidence
in court under s 157 of the Act (see Saw Thean Teik v. Regina [1952]
1 MLRH 394; [1953] MLJ 124; Muhammed Hassan v. Public
Prosecutor [1997] 2 MLRA 311; [1998] 2 MLJ 273; [1998] 2 CLJ 170;
[1998] 1 AMR 829). The purpose of corroboration is not to give
validity or credence to evidence which is deficient or suspect or
incredible but only to confirm and support that which as evidence is
sufficient and satisfactory and credible (see DPP v. Hester [1972] 3 All
ER 1056). Its role is to confirm other evidence in the sense that it
renders that other evidence more probable (see Doney v. R [1990] 171
CLR 207; DPP v. Kilbourne [1973] AC 729). It cannot therefore
amount to that other evidence itself. Thus the record of an information
will only enhance the credibility of the witness and the absence of it
cannot render the oral evidence of it inadmissible; nor can it be a
substitute for the evidence that it is meant to corroborate."
[Emphasis Added]
[98] Exhibits P37 and P44 are therefore of mere corroborative value and it is
the oral testimonies of PW15 and PW16 in court that constitutes the
substantive evidence under s 27 EA.
[99] After a consideration of the testimonies of PW15 and PW16 in court, I
find that their evidence is credible and their oral testimony of the information
supplied by both accused leading to the discovery of the clothing's and
weapons were admissible under s 27 EA.
Credibility Of PW15 Suspect
[100] Learned counsel also submitted that the credibility of PW15 was suspect
because although he said that he confiscated the pair of jeans belonging to the
first accused at 7am, the first accused is seen wearing the same pair of jeans
during the discovery of the items at 9.30am., as evident from the photographs
tendered (P16 (10)).
[101] Learned counsel submitted that PW15's explanation for this being that
the first accused was given another pair of jeans which looked similar in the
police station, cannot be accepted because PW15 could not produce the pair of
jeans worn by the first accused during the process of discovery of the items.
[102] Learned counsel submitted further that if the first accused was wearing
the same pair of jeans then it was also probable that the photographs in exhibit
P16 were taken soon after the first accused was arrested and not after the
statements were given to the police at the police station leading to the
discovery of the weapons.
[103] It was finally submitted that it made no sense for the first accused to give
pg 18
PP

a statement leading to discovery of the clothing's he wore during the incident
when in fact the pair of jeans he was wearing had already been confiscated
prior to interrogation.
[104] With the greatest of respect, learned counsel's contention above is merely
speculative. I see no reason why the explanation of PW15 in respect of the fact
that there were two different pairs of jeans could not be accepted as
reasonable.
[105] It must not be lost sight of that the whole rationale for the admissibility
of information given under s 27 EA is that the discovery of the items affords a
guarantee that the information given was true and accurate. See PP v. Er Ah
Kiat [1965] 1 MLRH 108; [1966] 1 MLJ 9 and PP v. Toh Ah Keat [1976] 1
MLRH 87; [1977] 2 MLJ 87 respectively.
[106] It is for this reason also that s 27 constitutes an exception to s 24 relating
to the admissibility of confessions. This court therefore finds that it is safe to
place reliance upon the information given here.
[107] The conduct of the accused persons in leading the police to the house
and the field and pointing out by gesturing and pointing with their hands,
albeit while handcuffed, which led to the items being discovered were also
relevant and therefore admissible under s 8 of the EA.
[108] In Amathevelli P Ramasamy v. Public Prosecutor (supra), although the
evidence under s 27 of Evidence Act 1950 was rejected, the conduct of the
appellant was held relevant under s 8 of Evidence Act 1950 as the court
pointed out as follows:
"The inadmissibility of the information supplied by the appellant does
not affect the admissibility of the evidence of her subsequent conduct
under s 8 of the Evidence Act 1950 irrespective of s 27. As Chinnappa
Reddy J said in Prakash Chand v. State AIR [1979] SC 400 at p 404:
"The evidence of the circumstances, simpliciter, that an
accused person led a police officer and pointed out the place
where stolen articles or weapon which might have been used
in the commission of the offence were found hidden, would be
admissible as conduct, under s 8 of the Evidence Act,
irrespective of whether any statement by the accused
contemporaneously will or antecedent to such conduct falls
within the purview of s 27 of the Evidence Act (vide Himachal
Pradesh Administration v. Om Prakash AIR 1972 SC 975)."
[Emphasis Added]
Weapons Allegedly Discovered In Fact A Recovery And Not A Discovery
[109] Learned counsel for the accused submitted that the location where the
weapons were allegedly discovered was close by to the football field where the
[2020] MLRHU 1159
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crime occurred. It was submitted that PW16 and PW16 were present at the
scene of the crime before the IO arrived and were seen interviewing PW9.
[110] It was therefore contended by counsel for the accused that both PW15
and PW16 had already acquired information regarding the location of the
weapons before the arrest of the accused, although PW15 had denied the
suggestion that he conducted any investigation before the arrests of the
accused.
[111] Learned counsel further submitted that the photographs P16(14) and
P(15) respectively, which showed the accused allegedly pointing at a bush
cannot corroborate the testimony of PW15 and PW16 that it was the accused's
conduct that led to the discovery of the weapons.
[112] It was alleged that the whole scene above as shown in the photographs
were staged by the police to make a recovery appear as a discovery. In
addition, it was alleged still further that PW15 and PW16 had given
contradictory evidence from the IO.
[113] This was because the IO testified that both PW15 and PW16 were seen
interviewing PW9. It was submitted even further that it was in fact PW16 who
brought the accused to the bushes and not the other way around. Defence
counsel also stated that based on the photographs P16 (17), the weapons were
not concealed.
[114] In order to deal with the above, firstly, just because PW15 and PW16
had interviewed PW9 does not mean that they actually knew the location of
the weapons. This would be to presuppose that PW9 had in fact known where
the weapons were disposed of and where they were located.
[115] This also disposes of the argument that the evidence of PW15 and PW16
contradicts with that of the IO. The fact that PW15 and PW16 interviewed
PW9 before the arrests of the accused persons, even if true, would not affect
the admissibility of the information under s 27 EA.
[116] There is no such evidence that PW9 possessed this information. It will be
recollected that PW9 and the deceased ran in opposite directions from one
another.
[117] With regard to the fact that the photographs P16 (14) and P (15)
respectively, which showed the accused allegedly pointing at a bush cannot
corroborate the testimony of PW15 and PW16 that it was the accused's
conduct that led to the discovery of the weapons, as I stated earlier, it is the
oral testimony of PW15 and PW16 that constitutes the information leading to
discovery under s 27 EA and not the police reports lodged subsequently.
[118] In the same vein, the fact that the photographs allegedly showed the
accused persons pointing out the location of the weapons and that the whole
scene was staged, is of no consequence in so far as the admissibility of the
information is concerned.
pg 20
PP

[119] With regard to the fact that it was PW16 who brought the accused to the
bushes and not the other way around, from the circumstances of the case, I
find that the evidence given by PW16 was credible and I accept his evidence
that the accused had given the information.
[120] With regard to the argument that based on the photographs P16 (17), the
weapons were not concealed, even if true, again does not necessarily affect the
admissibility of the information given as the mere fact that weapons are not
concealed does not mean the information cannot be admitted.
[121] The weapons were discovered in a field. The field is a football field and it
spans a wide and considerable area. Unless someone knows exactly where the
weapons were disposed of so that they knew where to look for it, the fact that
they were located in an open field made no difference.
[122] The admissibility of information under s 27 EA does not depend upon
whether the items were disposed in a concealed or an open location. What
matters is that these items would not have been discovered if not for the
information supplied by the accused persons to PW15 and PW16.
Effect Of The Information Supplied Leading To Discovery Under Section 27
EA
[123] The effect of the admissibility of the evidence of the information given by
both the first and second accused leading to the discovery of the clothing's and
weapons respectively is that a reasonable inference can be made that it was
them that inflicted the injuries to the deceased that led to his death.
iv) In Inflicting The Injuries Upon The Deceased, The Accused Persons Were
Possessed With The Requisite Intention Under Section 300(a), (b), (c) Or The
Requisite Knowledge Under (d) Of The Penal Code
[124] The evidence also pointed to the commission of an offence falling within
s 300(c) of the Penal Code which reads:
"Except in the cases hereinafter excepted, culpable homicide is
murder-
(a) ........
(b) .......
(c) if it is done with the intention of causing bodily injury to
any person, and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death;
(d) ......."
[125] With respect to the law on s 300(c), the locus classicus is the Indian
[2020] MLRHU 1159
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decision of Virsa Singh v. State of Punjab AIR [1991] SC 467, where the views
expressed by Vivian Bose J is widely relied upon as stating the correct law on
the subject where he said as follows:
".....To put it shortly, the prosecution must prove the following facts
before it can bring a case under s 300 "thirdly".....;
.....First, it must be established, quite objectively, that a bodily injury is
present...;
Secondly, the nature of the injury must be proved. These are purely
objective investigations....
Thirdly, it must be proved that there was an intention to inflict that
particular bodily injury, that is to say, that it was not accidental or
unintentional, or that some other kind of injury was intended.....
.....Once these three elements are proved to be present, the enquiry
proceeds further and Fourthly, it must be proved that the injury of the
type just described made up of the three elements set out above is
sufficient to cause death in the ordinary course of nature. This part of
the enquiry is purely objective and inferential and has nothing to do
with the intention of the offender.....
.....Once these four elements are established by the prosecution (and,
of course, the burden is on the prosecution throughout) the offence is
murder under s 300 "thirdly". It does not matter that there was no
intention to cause death. It does not matter that was no intention even
to cause an injury of a kind that is sufficient in the ordinary course of
nature (not that there is any real distinction between the two).It does
not even matter that there was no knowledge that an act of that kind
will be likely to cause death. Once the intention to cause bodily injury
actually found to be present is proved, the rest of the enquiry is purely
objective and the only question is whether, as a matter of purely
objective inference, the injury is sufficient in the ordinary course of
nature to cause death....."
[Emphasis Added]
[126] The results of the post mortem conducted by SP14 revealed the cause of
death to be due to "slash wound to the head". There were more than 10 slash
wounds on the deceased. These results were contained in a Post Mortem
Report (P34).
[127] From the nature of the injuries sustained by the deceased including the
weapons used to inflict those injuries, it can be concluded that the first and
second accused caused them with the intention of causing bodily injuries and
such bodily injuries were sufficient in the ordinary course of nature to cause
death in accordance with limb (c) to s 300 Penal Code.
pg 22
PP

[128] The prosecution had thus successfully proven this ingredient of the
charge against the first and second accused.
[129] The evidence as gathered from a combination of the circumstances was
thus inconsistent with any other hypothesis than that of the guilt of the
accused persons. There was therefore sufficient circumstantial evidence to
connect the first and second accused to the death of the deceased.
[130] All of the necessary ingredients to constitute the offence under s 302
were thus successfully proven by the prosecution.
Other Issues
There Is Doubt Whether The Weapons P15(1) And P12(3)(A) Discovered Are
The Murder Weapons
[131] Counsel submitted that there was no trace of the DNA of the accused
found on the said weapons whereas there was DNA of the deceased found on
the handle of the parang. Furthermore, PW9 could not identify the weapons
and the IO had never testified that these were the murder weapons.
[132] Just because there was no trace of the DNA of the accused persons
found on the weapons does not mean that they had never handled the
weapons. There could be a variety of reasons why no DNA trace was found
on the weapons.
[133] The fact of the matter is that the deceased met his death through slash
wounds inflicted on him and the DNA of the deceased was found on the
handle of one of the weapons. The weapons were also concealed to the
knowledge of the accused persons.
[134] Neither does the fact that PW9 was unable to identify the weapons used
lead to the conclusion that the accused persons were not responsible for the
death of the deceased.
[135] From a perusal of the testimony of PW9, he would not have had much
of an opportunity to observe the weapons brandished by the first and second
accused as he and the deceased had taken to their heels in what must have
been a rush of panic upon seeing the two accused approaching them.
[136] It is not in dispute that the evidence in this case is circumstantial in
nature. Notwithstanding the above submission of learned counsel, this does
not diminish the fact that the evidence as a whole leads to the irresistible
conclusion that it was the accused persons acting in unison who had chased
and inflicted the fatal injuries on the deceased.
Identity Of Deceased In Doubt
[137] Learned counsel for the second accused submitted that there was no
direct evidence apart from the testimony of PW9 to establish the identity of the
[2020] MLRHU 1159
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deceased.
[138] It was submitted that PW9 stated that he was aged 36 years and that he
was 34 when the incident took place. As the deceased was aged 22 years old,
this meant that PW9 became a father when he was just 12 years old.
[139] While counsel submitted that this is not altogether inconceivable, there
was no other convincing evidence produced to substantiate this fact.
[140] Learned counsel also submitted that the evidence of PW9 had
contradicted the evidence of the IO that the name of the deceased's father as
stated in the deceased's birth certificate (P26) was not that of PW9 but a person
by the name of Miralde Bin Bayaki.
[141] With regard to this, PW9 had offered a plausible explanation which is
that at the material time when the deceased was born, PW9 did not have any
valid travel documentation with him.
[142] For this reason the said Miralde Bin Bayaki was registered as the
deceased's father in the birth certificate. The fact that the IO had stated another
reason for this, being that PW9 was in prison at the time, even if true, does not
render PW9's explanation untrue or unbelievable.
[143] Evidence of the identity and relationship between PW9 and the deceased
need not only be gathered or inferred from documentation. Such evidence can
also be established by cogent oral testimony.
[144] What is material is that it was obvious from the evidence that PW9 knew
the deceased and vice versa. This fact meant that PW9 was in a position to and
indeed did positively identify the deceased in this case to be the said Amar Bin
Miralde.
[145] The deceased's birth certificate (P26) found in the bag further served to
confirm the identity of the deceased. PW9 had also positively identified the
deceased from the photographs shown to him in court. I also accept the
evidence of PW9 that the deceased was indeed his son.
[146] The fact that PW9 did not attend the post mortem because he said he
was afraid to see the injuries that the deceased sustained is not something
altogether inconceivable.
[147] Learned counsel also submitted that SP17 who was present at the scene
of the crime was not present during the post mortem but SP10 was. Counsel
also pointed out that SP10 who had attended the post mortem had only
identified the deceased through photographs shown to him by SP17.
[148] Notwithstanding, considering the evidence and circumstances as a
whole, there was sufficient evidence adduced by the prosecution that enabled
one to arrive to the conclusion that the deceased was in fact Amar Bin
Miralde. There was therefore no merit to the submissions by learned counsel
pg 24
PP

for the accused for the second accused on this issue.
Helmets Found Near The Body
[149] The defence submitted that the presence of two helmets marked as
exhibit P14(2)(A) as shown in photographs in P5(15) in close proximity to the
body of the deceased indicated that other persons were also present at the
scene.
[150] This is because it was contended that there was no evidence that the two
accused or the deceased and PW9 had worn helmets. The contention by the
defence as to the possibility of others being present however, is merely
speculative in nature.
[151] The mere presence of the two helmets does not, in the absence of
anything more, lead to the conclusion that there were others involved in the
act. To the contrary there was direct and cogent evidence from PW9 that he
and the deceased were chased by the accused persons brandishing parangs.
Paper Folding Found Near The Scene
[152] Learned counsel for the defence also submitted that the presence of a
paper folding or a piece of folded paper marked as exhibit P14(2) found some
50 feet from the body of the deceased's indicated that there were other
weapons used.
[153] In particular, it was contended based on the cross-examination of PW17
that P14(2) fitted the shorter parang but as this parang already had a cover
(exhibit P12 (3)(a)), there must have been another weapon used.
[154] Once again, I find this submission by the defence to be speculative and
based on conjecture. The mere fact that a piece of paper happened to fit the
shorter parang does not necessarily equate to there being another weapon
used.
[155] As stated above, PW9 was categorical that the two accused held a
parang each when they gave chase to PW9 and the deceased. I find no merit
thus in the contention by the defence on this issue.
Common Intention Under Section 34 Penal Code
[156] The essence of the concept of common intention was explained in the
Court of Appeal case of Sabarudin Non & Ors v. Public Prosecutor [2004] 2
MLRA 441; [2005] 4 MLJ 37; [2005] 1 CLJ 466; [2005] 1 AMR 4 by referring
to what was said by Sethi J in the Indian case of Suresh v. State of Uttar
Pradesh AIR [2001] SC 1344 as follows:
"Section 34 of the Indian Penal Code recognises the principle of
vicarious liability in the criminal jurisprudence. It makes a person
liable for action of an offence not committed by him but by another
[2020] MLRHU 1159
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person with whom he shared the common intention. It is a rule of
evidence and does not create a substantive offence. The section gives
statutory recognition to the common sense principle that if more than
two persons intentionally do a thing jointly, it is just the same as if
each of them had done it individually. There is no gain saying that a
common intention pre-supposes prior concert, which requires a pre-
arranged plan of the accused participating in an offence. Such a pre-
concert or pre-planning may develop on the spot or during the course
of commission of the offence but the crucial test is that such plan must
precede the act constituting an offence. Common intention can be
formed previously or in the course of occurrence and on a spur of
moment. The existence of a common intention is a question of fact in
each case to be proved mainly as a matter of inference from the
circumstances of the case."
[Emphasis Added]
[157] The above passage can succinctly be summarised as follows:
i) It is the application of the principle of vicarious liability in criminal
law;
ii) It is a rule of evidence;
iii) It is the recognition of the common sense principle that if more
than two persons intentionally do a thing jointly, it is just the same as
if each of them had done it individually;
iv) It pre-supposes prior concert;
v) This however can not only be formed previously but also during the
course of occurrence and on a spur of moment; and
vi) Whether there is common intention is a question of fact to be
proved mainly by way of inference from circumstances.
[158] The testimony of PW9 was that he saw both accused persons
approaching him and the deceased while they were at the flats. PW9 also said
that he saw the second accused hold a parang. SP9 said that he saw the first
accused also take out a parang. At that time SP9 told the deceased to run.
[159] Common intention as of necessity is a matter of inference from the
prevailing circumstances of a particular case. This must be so as it has been
famously said that "even the devil knows not the intention of man". There is
no direct evidence as to whether it was one or both of the accused who
inflicted the fatal injuries.
[160] However, drawing upon the circumstances as gathered from the
testimony of PW9 as stated above and the incontrovertible fact that the
deceased was found a short while later dead within the vicinity from slash
pg 26
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wounds, it can be reasonably inferred that the first and second accused had
formed a common intention to inflict injuries on both PW9 as well as the
deceased.
[161] The fact that both accused were armed with parang's clearly indicates
that they approached PW9 and the deceased with intent to cause them harm
and to inflict injuries on them.
[162] In the premises, I find that both accused had the requisite common
intention under s 34 of the Penal Code to commit murder under s 302 of the
Penal Code.
Decision At The End Of The Prosecution Case
[163] Upon a maximum evaluation of the evidence, and for the reasons
expressed above, I found that the prosecution had proven a prima facie case
against the first and second accused in respect of the charge as proferred
pursuant to s 180(3) Criminal Procedure Code (CPC) and I called upon them
to enter on their defence.
[164] After the three alternatives consequent upon such finding were explained
to them, both accused elected to give sworn testimony.
D) The Defence Case
[165] The first accused said that he resided in Pasir Gudang at Flat No 3,
Taman Mawar in Johor Bahru (JB) where he lived together with persons
named Indani, Toto and Sachim.
[166] The first accused said that he does not recognize the name of Datu
Karnu (PW9) but if he saw his face he may be able to identify him. The first
accused said that he does know PW9's name but he knew that he had an
argument with his older brother named Indani.
[167] The first accused said that PW9 has a daughter and that Indani's son
named Toto was proposing marriage to her. He said however that PW9 had
requested for a higher dowry and this was the source of the differences
between them. He said that the relationship between PW9 and Indani was
already strained even before the incident which resulted in the death of the
deceased.
[168] The first accused said that he knew PW9 as Samak. He said that 29
September 2016 at around midnight and while he was in his flat, he heard the
sound of car horns coming from below.
[169] When he went to the window to look out, he saw Samak (PW9) calling
for Indani and Toto. He said that since it was already midnight and he did not
want any violence to ensue, he went downstairs with Buhari, the second
accused.
[2020] MLRHU 1159
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[170] The first accused told PW9 and the other person he was with whom he
does not know, that as everyone was already asleep, they should go home. He
said that PW9 ignored the request and continued to ask him where was Indani
and Toto. The first accused replied that they were not in the flat at the time.
The first accused said that PW9 replied that he would then deal with him and
the second accused instead.
[171] PW9 and the person accompanying him then went back into their car
and PW9 took out a weapon, that looked like a big knife and the other person
brought out a belt with a big buckle.
[172] As PW9 was about to approach him and second accused, they ran away
with PW9 giving chase to him and the other person chasing the second
accused.
[173] The first accused said that he ran towards Block 6 which was behind
Block 3 but said that he did not know where the second accused ran they had
already separated during the chase.
[174] He said that he was only clad in a sarong and he was not wearing any
underwear and wore a shirt "baju Melayu". The first accused said that it was
impossible for him to run with the sarong without it falling down unless he
held it up with his hand. He also said that this was why it was not possible for
him to hold a weapon in his hand.
[175] The first accused said that when PW9 chased him toward Block 6, he
stayed for a few minutes at Block 6. He then wondered what had happened to
the second accused and so he went back to Block 3.
[176] When he reached Block 3, he went inside his flat and looked out the
window and he saw some commotion taking place at the badminton court but
he could not see what was happening clearly as it was already dark. He said
that he did not know what the commotion was all about.
[177] The first accused then said that he and the second accused then left
Block 3 and went towards Block 5 where their friends were. This was also
because both the first accused and the second accused were frightened that
PW9 and the other person will come after them with their weapons.
[178] The first accused said that their friends at Block 5 were a couple, namely,
Mat Jini and his wife, Hajjah Amnah. At Block 5, the first and second accused
slept over and in the morning they heard a knock on the door.
[179] The first accused said that because he and the second accused had no
proper identification documents, they decided to hide in the toilet. As they
looked from the toilet, they saw Hajjah Amnah opening the door for the
police.
[180] The first accused said that the police went to the toilet but could not
open the door as they had locked it from the inside. After the police forced
pg 28
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open the door, they took them out of the toilet and proceeded to handcuff
them.
[181] The first accused said that when the police took them to the living room,
they were beaten up by the police. Both Mat Jini and Hajjah Amnah witnessed
them being beaten up.
[182] The first accused said that after the police beat them up, the police
accused them of killing PW9's son. The police then asked the accused where
their shirts and trousers were.
[183] The first accused denied trying to climb and hide up in the water tank as
he said that the water tank is hidden from view by the ceiling. The first
accused said that the police also arrested both Mat Jini and Hajjah Amnah.
[184] The first accused said that the police brought him and the second
accused to a badminton court where they produced a weapon resembling a
knife and placed it on the floor of the badminton court and told both accused
to point towards the knife.
[185] The first accused said that since they were punched and beaten
throughout, they decided to comply with the instructions. As a result both of
them pointed to the knife. The first accused said that the weapons they were
instructed to point to is shown in photographs P16 ("no 14 and no 15").
[186] The first accused also said that the police brought out the knives as
shown in photographs no 16 and no 17 of P16 and he said that he did not
know who the knives belonged to. He said that the knives were just
underneath the leaves shown in photograph no 14 of P16.
[187] The first accused said that after the police took out the knives, he, the
second accused, Mat Jini and Hajjah Amnah were taken to the police station.
When they arrived at the police station, both accused were given orange
clothing to wear as they had to give their clothing's to the police. His statement
was also taken at the police station.
[188] The first accused said that he did not know who the person was who
accompanied PW9 that night until he came to court for his case. The first
accused denied that when he came down from his flat he held a weapon as
alleged by PW9. He also denied that the second accused held a weapon.
[189] The first accused said that the second accused was also wearing a sarong
and a "kopiah" that night. He denied that he killed the person who
accompanied PW9 and said further that he did not know who was involved in
the brawl.
[190] The first accused said that he had never before seen the weapons shown
in photograph P16 no 19 before the police showed it to him.
[191] The defence called Detective Sergeant Razman Bin Nikmat (DW2) as
[2020] MLRHU 1159
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the next witness. DW2 testified that he was on duty on 30 September 2016 at
the "Cawangan Operasi Jenayah", IPD, Seri Alam.
[192] DW2 said that he and his team comprising Inspector Zainuddin and
Inspector Sathya, based upon information received, made two arrests that day
around 1.00 am. ie the first and second accused. He however, was unable to
recollect what clothing's they were wearing.
[193] After the arrests, the accused were brought to the police station and said
that the accused persons were interrogated but he was unable to remember
who he interrogated.
[194] Later on DW2 said only the officers interrogated the accused persons
and while he only stood guard. DW2 was unable to remember which officer
interrogated which accused person.
[195] DW2 could not also remember what time the interrogation took place.
In cross-examination, DW2 agreed that it was only after interrogation of the
accused persons that the clothing's and weapons were found.
[196] The second accused, Buhari Bin Asmawin, testified that on 29
September 2019 while he was at his residence at Level 3, Block 3, Taman
Mawar, Pasir Gudang, he heard the continuous sound of horning from a car
coming from below.
[197] The second accused said that the person who sounded the car horn also
was cursing as if he was not satisfied with something. He went downstairs to
see what was happening and he said that the first accused ""Fogi" also went
downstairs.
[198] The first accused told him that PW9 was looking for his uncle and the
second accused followed him in order to tell PW9 not to make noise and cause
any trouble as people were already sleeping.
[199] The second accused said that the first accused told him that there was
previously a problem between PW9 and his uncle named Imdani and his son
named Toto. The second accused said that he only wore a sarong but with no
underwear and a "baju Melayu" as it was late at night and almost bedtime.
[200] The second accused said that PW9 was with another person. The second
accused said that as soon as they reached downstairs, the first accused told
them not to make noise.
[201] PW9 asked where Imdani and Toto were but the first accused said that
they were not at the flat. The second accused said that PW9 was not satisfied
with this answer and went back to his car and took out a "parang" while the
other person brought a belt with a metal buckle and started to chase them.
PW9 chased the first accused while the other person chased the second
accused.
pg 30
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[202] The second accused said that he managed to escape from the person who
chased him but did not know what happened to the first accused because PW9
chased the first accused in another direction. The second accused said that
after he back tracked to block 3, he reunited with the first accused at the
football field.
[203] The second accused said that he saw people fighting at a field nearby
block 3 and some people running but could not see clearly because it was dark.
The second accused said that he did not know what happened to PW9 and the
other person with him.
[204] Both accused then went to block 5 as they were afraid that PW9 and the
other person would look for them again. Both accused went to their friend's
house at block 5 namely, Mat Jini.
[205] Both accused then slept at Mat Jini's house and were awakened by the
sound of knocking on the door. They were afraid that it was PW9 and the
other person come to look for them.
[206] They were also afraid it might be the immigration authorities conducting
a raid and to arrest them because they had no proper permit. As a result, both
of them hid in the bathroom. The second accused however said that they did
not hide up the water tank as alleged because there was no water tank on top
or any ceiling as alleged where they could hide.
[207] The second accused said that he and the first accused did not engage in a
scuffle with the police as alleged when the police informed that they were
responsible for the murder of a person found in the football field. The police
then arrested both of them as well as Mat Jini and his wife.
[208] After some more policemen arrived at the flat, he and the first accused
were beaten up by the police. The second accused said that the police asked
them to show what clothing's they were wearing at the time and the police also
took photographs. The second accused maintained that he was not wearing
any trousers but only a "sarong" and a "baju Melayu".
[209] The second accused said that he and the first accused were then brought
to a football field in Taman Mawar where he and the first accused while both
were still in handcuffs, were asked to stand in front of some shrubs and asked
to point in the direction of the shrubs and they complied as they were afraid of
being beaten up by the police again. The police then took some photographs.
[210] The second accused said that the police then told them that there were
weapons in the shrubs and the police then recovered the weapons themselves
but the second accused said that the weapons did not belong to him and he
had never before seen them.
[211] To a question posed to him in his Witness Statement ("DWS3") that
PW9 had testified that he had held a knife while he pursued the deceased, the
second accused replied that he had never chased the deceased.
[2020] MLRHU 1159
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[212] He said that he had been clad in a sarong and that it was impossible that
he could run without holding the sarong up with both hands and hence, it was
not possible for him to carry a weapon with one hand while chasing the
deceased. He repeated that he never confronted the deceased or injured him in
any way.
[213] The second accused said that the contents of the police report (P44) that
stated that he had given information about the clothing's used and the
weapons were not true.
[214] He further said that he had not been administered any form of caution by
the police who lodged P44. He said that the clothes he wore and the weapons
that the police instructed them to point towards all occurred before both he
and the first accused were brought to the police station.
[215] The second accused said that he had no enemies and that he only came
to Malaysia to make a living and that he had a family and would not risk
violating the law.
[216] The second accused said that he had never before seen the place shown
to him in P5 (18 and 19). He said that he does not know who stayed there but
it was not him or the first accused.
E) Duty Of The Court At The Conclusion Of The Trial
[217] The duty of a trial court at the conclusion of the defence case is set out in
s 182A of the Criminal Procedure Code (CPC) which imposes an obligation
upon the court to consider all the evidence to decide whether the prosecution
has proved its case beyond reasonable doubt.
[218] See also Prasit Punyang v. Public Prosecutor [2014] 1 MLRA 387; [2014]
4 MLJ 282; [2014] 7 CLJ 392 and also Md Zainudin Raujan v. Public
Prosecutor [2013] 3 MLRA 351; [2013] 3 MLJ 773; [2013] 4 CLJ 21; [2013] 3
AMR 480. In the former case, the Court of Appeal speaking through Azahar
Mohamed JCA ("as His Lordship then was"), held:
"In accordance with the provisions of s 182A(1) of the Criminal
Procedure Code, it is the bounden duty of the learned JC, at the
conclusion of the trial, to consider all the evidence adduced before him
and shall decide whether the prosecution has proved its case beyond
reasonable doubt. The legislature has advisedly used the term all the
evidence. The emphasis must be on the word all."
[219] Aside from the above, the correct thought process and stages that should
be followed by a trial court in the assessment and evaluation of the defence
evidence is that as encapsulated in the time honoured decision of Mat v. Public
Prosecutor [1963] 1 MLRH 400; [1963] 1 MLJ 263, where it was held by
Suffian J (as he then was) as follows:
pg 32
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"The position may be conveniently stated as follows:-
(a) If you are satisfied beyond reasonable doubt as to the accused's
guilt
Convict.
(b) If you accept or believe the accused's explanation
Acquit.
(c) If you do not accept or believe the accused's explanation
Do not convict but consider the next steps below.
(d) If you do not accept or believe the accused's explanation and that
explanation does not raise in your mind a reasonable doubt as to his
guilt
Convict.
(e) If you do not accept or believe the accused's explanation but
nevertheless it raises in your mind a reasonable doubt as to his guilt
Acquit."
[220] The approach in Mat v. Public Prosecutor was endorsed by the Federal
Court as being the correct one to adopt when evaluating the evidence of the
defence case in Public Prosecutor v. Mohd Radzi Abu Bakar [2005] 2 MLRA
590; [2005] 6 MLJ 393; [2006] 1 CLJ 457; [2005] 6 AMR 203.
F) Analysis Of The Defence Case
[221] The version of the defence as to the events on the day in question is
diametrically opposed to the prosecution version. The defence contends that it
was in fact PW9 and the deceased who gave chase to the two accused.
[222] The defence also portrayed the deceased and PW9 as the aggressors and
further said that the accused could not have given chase as they were wearing
sarongs so that it was not possible for them to have chased the deceased and
PW9 while holding parangs without their sarongs falling off. It was also
suggested that this was improbable because the accused person's said that they
were not wearing any underwear.
[223] Having considered both the versions given by the prosecution and the
defence and having juxtaposed both, I find that the defence version cannot be
believed and neither does it raise a reasonable doubt in the prosecution case.
[224] The plain fact of the matter is that the deceased died from slash wounds,
the immediate cause of death being stated as being"slash wound to the head".
[2020] MLRHU 1159
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This was confirmed by the pathologist, SP14.
[225] The relevant question to be answered is how the deceased sustained
these wounds. The defence raised the issue of there being other persons
possibly present that would suggest that the deceased was attacked by others
and not the accused persons.
[226] In support of this, the first accused testified that after being chased by
PW9 and having managed to escape from him, he decided to return back to
his flat to look for the second accused.
[227] It was then that he saw a fight was taking place but he could not see who
was involved as it was dark by then. This evidence was put forth no doubt
with the intention of suggesting that the deceased had met his end at the hands
of persons other than the two accused.
[228] To further bolster the argument that others might have been responsible,
the defence also pointed out the presence of two helmets not far from the
deceased and a folded piece of paper also close by the deceased's body which
they said indicated the presence of others as neither the two accused or PW9
and the deceased wore helmets.
[229] The relevance of the folded piece of paper was that there was another
weapon used because the shorter parang already had a sheath thus making it
improbable that the folded piece of paper was for the shorter parang.
[230] Both the issue regarding the presence of the helmets and the folded piece
of paper have been addressed in this judgment in the course of analysis of the
prosecution case.
[231] Suffice to reiterate however that in the absence of anything more, the
presence of the helmets and the piece of paper do not reasonably give rise to
the inference that others were present.
[232] The cogent testimony of PW9, to the contrary, indicate that it was the
accused persons who gave chase to him and the deceased. There were no other
eye witnesses to the fact that the death of the deceased might have been caused
by persons other than the accused persons.
[233] PW9 was also categorical that it was the accused persons who gave
chase and if there were others involved, no doubt this would not have gone
unnoticed by the residents of the flat who would no doubt have been alerted to
the commotion happening. The incident furthermore took place at a time
when most residents would be in their homes. The investigation conducted
also do not bear out the defence case.
[234] The fact that it was the two accused who in fact chased PW9 and the
deceased is also borne out by the information given by the accused persons
leading to the discovery of the weapons and their clothing's.
pg 34
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[235] This aspect of the case in so far as the defence had challenged the same
has also been dealt with during the course of analysis of the prosecution case
and I do not propose to repeat all of what I have said there.
[236] It however bears repetition that the discovery of the weapons affords a
measure of guarantee that the information given by both accused leading to its
discovery was true.
[237] This fact in turn leads to the irresistible conclusion that the only manner
in which the deceased had met his end cannot be explained in any other way
except that it was the two accused who had brandished weapons and chased
PW9 and the deceased.
[238] If PW9 or the deceased were the aggressors as contended to by the
defence were true, it would stand to reason that they would have ascended the
stairs leading to the flat occupied by the accused persons to confront them.
Instead, the evidence showed that it was both accused who descended the
staircase to confront them.
[239] The circumstances show to the contrary that the two accused persons
were the aggressors. Notwithstanding that the defence version was, as learned
counsel for the first accused submitted, put during the prosecution case, this of
itself does not necessarily mean that their version is true nor does it raise a
reasonable doubt in the prosecution case.
[240] To the contrary the defence version stands to be evaluated together with
all the evidence and the prevailing circumstances in order to determine
whether it rings true or nevertheless raises a reasonable doubt.
[241] If, as the defence version puts it, the accused person's wanted to avoid
confrontation upon witnessing PW9 calling out that night, both accused could
have chosen to stay in the relative security of their flats and call for security or
the police. The fact that they chose to go downstairs showed that they wanted
to confront PW9 and the deceased.
[242] The version that PW9 and the deceased after confronting both accused
then retreated to the car in order to take weapons and give chase also does not
stand to reason.
[243] This was no doubt meant to portray that PW9 and the deceased had pre-
meditation and came armed with weapons in the car. If the narrative of the
defence is true how did the deceased end up in that condition?
[244] There was also no evidence that the belt with the metal buckle allegedly
carried by the deceased was ever found in the vicinity of the flats or at the
scene of the incident. All the circumstances point to the fact that it was the
accused persons and not PW9 or the deceased who possessed the weapons.
[245] The version by the defence under all the circumstances do not therefore
raise a reasonable doubt as to their guilt.
[2020] MLRHU 1159
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[246] The defence also submitted that as the version that the accused persons
would not have been capable of running while holding the parang at the same
time without their sarongs having fallen down was not challenged by the
prosecution, this is tantamount to an acceptance of the defence version.
[247] In this regard however, I tend to agree with the submission of the
prosecution that the failure to cross-examine does not necessarily mean that
the acceptance of the defence version.
[248] Any such failure to cross-examine should be rather tested against the
probabilities of the case and a careful evaluation of the totality of the evidence
adduced in court. See Khee Thuan Giap v. PP [2019] MLRAU 152 and Liza
Ismail v. PP [1997] 2 SLR 454.
[249] In any event, the prosecution did put to the accused that the version that
PW9 and the deceased chased the accused was not true, thus putting in issue
the main plank of the defence case that it was PW9 and the deceased who gave
chase. I do not thus see how it can be said that the prosecution had accepted
the defence version on this point.
[250] Further to this, eventhough the accused persons were clad in sarongs,
this does not necessarily lead to the inference that they were unable to run with
weapons in their hands lest their sarongs fell down as it all depends on how
tightly or securely the sarong is tied.
[251] Similarly, while learned counsel for the first accused submitted that the
learned DPP during cross-examination may have suggested that PW9 and the
deceased had brought weapons with them and that there was a fight earlier in
the day between Imdani and PW9, the evidence overall must be viewed in its
proper perspective.
[252] The overall tenor and line of the cross-examination conducted by the
DPP does not leave one in doubt that the prosecution disagrees with the
version of events as described by both accused. It was also categorically put to
the accused that it was they who carried weapons and gave chase to the
deceased and PW9.
[253] In the premises, there is no merit to the contention by learned counsel for
the first accused that the prosecution had agreed with the defence version.
[254] The defence also raised the issue of the accused persons being beaten by
the police as a result of which they were forced to point out to certain weapons
for the purposes of taking photographs.
[255] There was however no evidence that both accused persons were
previously known to any of the police team who arrested or were involved in
investigation. This being the case, there cannot have been any "axe to grind"
between them so to speak and there is no reason or motive for the police to
frame up the accused persons.
pg 36
PP

[256] I therefore find the allegation that the two accused were forced to point
out the weapons by the police, as baseless and unfounded.
[257] Learned counsel for the second accused submitted that the weapons
were found not after the accused persons were brought back to the police
station where they gave certain information, but immediately after their
arrests.
[258] This is because it was submitted there existed infirmities in the police
report (P35) lodged by SP15 relating to timing which gives rise to a doubt as to
how it was possible to reach the police station from the scene and then return
back to the scene where the accused persons allegedly pointed out the
weapons.
[259] The defence raised a similar argument in respect of the police reports
P37 and P44 lodged by PW15 and PW16 relating to the clothing's discovered.
[260] The matter relating to the admissibility of the information given leading
to the discovery of the weapons has already been addressed earlier in the
judgment and there is no need to repeat the same.
[261] Even though discrepancies may exist in respect of the timing as
submitted, this of itself does not necessarily mean that the items discovered
were not as a result of information given by the accused.
[262] Such discrepancies may have arisen for a variety of reasons not the least
of which is that in the frenzied atmosphere of the arrests and investigation that
day, only approximate times may have been stated in the respective police
reports.
[263] As already alluded to, the fact that items were in fact discovered affords
a guarantee that the information must have emanated from the accused
persons as there is no cogent evidence that the police already knew about the
whereabouts of these items and so disguised what was a recovery into a
discovery.
[264] Once again, it bears repetition that the two accused had no prior
relationship or encounters with the police team and vice-versa, thus excluding
the possibility of a frame up.
[265] I therefore find no merit in the submissions by counsel that the
discrepancies in timing meant that the police actually recovered the items
immediately after the arrests of the accused persons and not as a result of
interrogation while at the police station.
[266] The act of both accused in seeking refuge in the house of Mat Jini and
Hajjah Amnah and in hiding near the water tank located near the ceiling also
indicates subsequent conduct evidencing guilt and this is therefore relevant
under s 8 of the Evidence Act 1950.
[2020] MLRHU 1159
PP

[267] The accused's person's desperate conduct in doing so can only be
reasonably explained by reference to the fact that there were in hiding from the
police after the murder of the deceased to evade detection and not, as they
said, to avoid coming across PW9 because they were afraid of him or because
they had no valid identification documentation.
[268] There was also evidence that both accused did not come away with the
police voluntarily when they were located but a scuffle with the police ensued.
This indicates that they were desperate to escape from the clutches of the law.
Such conduct was also relevant to infer guilt under s 8 of the Evidence Act
1950.
[269] The issues raised regarding the fact that it was not proven that the
weapons recovered were used in the commission of the offence, that the
accused persons had not pointed out any weapons, and that the identity of the
deceased was not proven, have been addressed during the course of analysis of
the prosecution case and I do not propose to repeat these.
[270] The issue with regard to exhibits P37 and P44 as not amounting to
corroborative value has also been addressed earlier.
[271] The evidence as a whole pointed to one conclusion and one irresistible
conclusion alone which is that both accused were possessed with common
intention and proceeded to act accordingly when being armed with weapons
went to confront the deceased and PW9 and subsequently gave chase to them
both resulting in the death of the deceased.
[272] The defence has therefore failed to raise a reasonable doubt in the
prosecution case. I find consequently that the prosecution has succeeded in
proving their case against both accused beyond a reasonable doubt in respect
of the charge as proferred, pursuant to s 182A(2) of the Criminal Procedure
Code and I therefore convict both accused.
[273] The sentence of this court is that both accused are to be hanged by the
neck until they are dead.
pg 38
PP

PP v Sauib Thandi & Anor [2020] MLRHU 1159

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PP v Sauib Thandi & Anor [2020] MLRHU 1159