You are on page 1of 21

[2016] 1 LNS 310

Legal Network Series

IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) [CRIMINAL APPEAL NO: S-05-22-01/2013]

BETWEEN

BASAH BAKHTIAR @ JOHAN

APPELLANT

AND

PUBLIC PROSECUTOR

RESPONDENT

(In the Matter of High Court of Sabah & Sarawak at Sandakan Criminal Trial No: SDK-45-07-2010)

Between

Public Prosecutor

And

Basah Bakhtiar @ Johan

CORAM:

ROHANA YUSUF, JCA

IDRUS HARUN, JCA ZAMANI A RAHIM, JCA

1

[2016] 1 LNS 310

Legal Network Series

Introduction

JUDGMENT

[1] Basah bin Bakhtiar @ Johan, the appellant, was charged in the High Court at Sandakan, Sabah with the murder of one Hung Wai Tong, (the deceased) on 30.9.2009, at about 12.10 am at a roadside at Kampung Pukat, Bandar Nam Tung, Sandakan, an offence under section 302 of the Penal Code. The charge reads as follows:

The Charge

“That you, 30 th day of September 2009, at about 12.10 am, at a roadside, Kampung Pukat, Bandar Nam Tung, in the District of Sandakan, in the State of Sabah did commit murder by causing the death of one Hung Wai Tong, I/C No. 580714-12-5619 and that you have thereby committed an offence punishable under section 302 of the Penal Code.”

The Prosecution’s Case

[2] On 30.9.2009 at about midnight, Roslinda binti Tahir (PW5) and the deceased closed the Hsiang Garden coffee shop where both of them were working. When PW5 was about to leave the coffee shop, the appellant approached her. The appellant requested for a lift to a place called Tanah Merah. PW5 and the appellant entered the car. PW5 took the front passenger seat, next to the deceased. The deceased was the driver of the car. The appellant took the back seat, behind the deceased. The deceased drove the car towards Tanah Merah.

2

[2016] 1 LNS 310

Legal Network Series

[3] While in the car, the appellant changed his mind twice. He did not wish to get down from the car at a place called Pappillion and also at the first roundabout. At the request of the appellant, the car was driven to the second roundabout. Before reaching it, the appellant informed the deceased and PW5 that he wanted to get down the car. The deceased then slowed down the car to stop. At this juncture, the appellant suddenly grabbed the deceased’s face with his left hand from behind the driver’s seat. The deceased was struggling to liberate himself. The deceased used both of his hands to free himself, so much so that he had to release his grip on the steering wheel of the car.

[4]

On seeing this, PW5 had repeatedly hit the appellant’s hand

angrily so that he would release his grip on the deceased’s face. At the

same time, she yelled

and

cursed

the

appellant.

In

response, the

deceased asked PW5 to run away from the car.

[5] The car finally crashed into the bushes at the left side of the road. The appellant released his grip on the deceased’s face. The appellant threatened PW5 not to tell anyone of the incident, otherwise her family could suffer the same fate as the deceased. PW5 then asked the appellant “Kenapa kau buat kami begini, apa salah kami?” The appellant did not reply. He remained silence. PW5 cried for help. The deceased had leaned towards her. She noticed the deceased’s neck was bleeding. PW5 hugged the deceased and pleaded him to wake up, but no response.

[6] The appellant alighted from the car. He rushed towards PW5’s door via the rear of the car. He attempted to open the door of the car.

3

[2016] 1 LNS 310

Legal Network Series

She locked the doors of the car from inside. The appellant could not open the door. She screamed for help. The appellant fled from the car.

[7] PW5 came out of the car and cried for help. A motorcyclist and his pillion rider, Constable Mohammad Firdaus bin Usop (PW6) passed by. PW6 noticed the crashed car and a man was running away from the said car. PW6 identified the appellant as the escapee at an identification parade. PW6 met PW5 who informed him that the man (appellant) who ran away had stabbed her boyfriend (the deceased). PW6 then informed the police station of the accident (car crashed). In the meantime, PW5 received the call from the appellant who warned her not to tell anyone, otherwise her child would be killed. She was scared.

[8] The investigating officer (I.O), ASP Mohd Naeem (PW8) was notified of the case. He visited the scene where preliminary investigation was conducted. The deceased body was removed to the Duchess of Kent Hospital, Sandakan. PW5 was also taken to the police station where a police report was lodged vide Sandakan Report No. 12330/09, exhibit P8.

[9] On 2.10.2009, a post-mortem was conducted on the deceased body by Dr. Jessie Hin @ Jessie Dorey Hin Chen Chen, (PW7). A post- mortem report was issued as exhibit P10. On external examination of the deceased’s body, PW7 found the following injuries:

(1)

A very superficial incised wound measuring about 1.4 cm orientated transversely on the right side of the neck;

4

[2016] 1 LNS 310

Legal Network Series

(2)

A very superficial incised wound measuring about 1 cm orientated transversely on the lower right side of the neck;

(3)

A stab wound measuring about 11 x 2.5 cm orientated sagittally on the medial aspect of the right shoulder (near the right side of the neck). The margins were irregular. The posterior end of the wound was sharply cut. The anterior half of the wound was directed to the left and upward cutting the underlying neck muscles. The right carotid artery and the right jugular vein were completely cut. The posterior part of the wound was directed to the back cutting muscle. The average depth of the wound was 6 cm. The wound was associated with soft tissue haematoma.

(4)

An ‘L-shaped’ superficial incised wound on the

right

shoulder. The long limb measured about 1 cm and the short

limb measured 0.5 cm;

(5)

Multiple abrasions and bruise measuring an area of about 2 x 1 cm on the lateral aspect of the right shoulder.

[10] PW7 had confirmed that the cause of death was due to excessive loss of blood due to the cut on the right carotid artery and the right jugular vein caused by the stab wound on the medial aspect of the right shoulder. PW7 also concluded that the stab wound was the only fatal injury. The conjunctivae of the deceased eyes and the internal organs were pale indicating loss of blood.

5

[2016] 1 LNS 310

Legal Network Series

[11] PW7 further explained that the stab wound was fatal and there was no chance of survival. PW7 opined that the injuries suffered by the deceased was sufficient in the ordinary course of nature to cause death.

[12]

As

part

of

police

investigation,

an

identification

parade

was

conducted by Insp. Yau Wai Peng, PW4. PW5 had identified the appellant as the person who had murdered the deceased, whilst PW6 had identified the appellant as the person who had run away from the the scene of crime. At any rate, PW5 and PW6 had identified the appellant in court in the course of giving evidence in the trial. This is known as dock identification.

Findings Of The Trial Judge At The Close Of The Prosecution’s Case

(1)

The deceased was one Basah bin Bakhtiar @ Johan. The deceased body was identified by PW5 and PW8 before the post-mortem was conducted by PW7. The cause of death was due to loss of excessive blood from the stab wound inflicted by the appellant;

(2)

The death of the deceased was caused by the appellant. This was narrated by PW5 who witnessed the incident in the car. When the car crashed into the bushes, the appellant ran away from the car. The appellant was accosted by PW6 who talked to him. PW6 too could identify the appellant in the identification parade conducted by PW4;

6

[2016] 1 LNS 310

Legal Network Series

(3)

PW5 had known the appellant as “Johan” about 3 months before the incident. And PW6 could identify the appellant as he was talking to him and he could see his face clearly;

(4)

Initially PW5 said that certain parts of his police report, in

exhibit P8 was not true because she was scared

of the

appellant who threatened to murder her and her family, if she

disclosed the incident to anyone. The appellant was at large then. When the appellant was arrested, on her own volition,

PW5

told the true story

to the police. The trial court found

her explanation was reasonable and accepted her explanation;

(5) Hence on a maximum evaluation of the evidence adduced by the prosecution at the close of its case, the trial judge found that the prosecution had succeeded in establishing a prima facie case against the appellant as charged. His defence was called.

Defence Case

[13] The appellant testified on oath. He came from Zamboanga, the Phillipines. He was a married man with 3 children - a daughter aged 18 years, two sons aged 12 years and 6 years respectively. He came from a poor family. He was a farmer.

[14]

The appellant and his family moved to Sandakan illegally. At first

they lived at Batu 16 and a year later they moved to Bandar Leila. This

was in 1997. He was a fishmonger in Sandakan market. He obtained

7

[2016] 1 LNS 310

Legal Network Series

the fish supply from the boat daily at about 2.00 am and sold the fish at Sandakan market until 4.00 pm.

[15]

He went to

bed

at about 10.00

pm daily

as

he

had

to

wake up

at

about 2.00 am to go and buy the fish.

[16]

The appellant did not know PW5. He had only seen PW5 once.

He had no intimate relationship with PW5.

[17] The appellant could not remember his whereabouts on 30.9.2009 at about 12.10 am (the time stated in the charge). Normally he was asleep at about 12.10 am. At about 2.00 am, he woke up and went to buy fish.

[18] He denied that he was at the scene of the crime on 30.9.2009.

[19] The appellant’s second witness was his wife, Nasira Abdullah Sakilan, DW2. She worked as an operator at a factory, Inovwood Sdn Bhd. She could not remember her whereabouts on 30.9.2009 between 12.00 midnight to 2.00 am.

[20] DW2 was a hopeless witness for the defence. In examination-in- chief, DW2 was asked and she answered as follows:

Q1258

:

I put to you that you are lying in court today. agree?

Do you

A

:

Setuju

8

[2016] 1 LNS 310

Legal Network Series

Q1259

:

I put to you that you are protecting your husband today. Do you agree?

A

:

Setuju

[21]

In re-examination, DW2 answered as follows:

Q126

: Kamu tadi dicadangkan kamu berbohong di Mahkamah.

:

A

Kamu setuju kamu berbohong di Mahkamah. Boleh kamu tolong jelaskan? Saya tidak boleh jelaskan. Saya tidak faham masalah ini.

Q1261

:

Kamu kata kamu setuju melindungi suami kamu dan boleh kamu jelaskan kenapa kamu kata kamu melindungi suami kamu?

A

:

Kan dia suami saya.

Q1262

:

Kamu fahamkah apa itu melindungi dalam kontek ini?

A

:

Saya faham, saya melindungi dia.

[22] The third witness called by the defence was Zaidi bin Sudin, DW3. On the night of the murder, DW3 was riding a motorcycle with Firdaus. At Karamunting petrol station, DW3 took over from Firdaus as the rider of the motorcycle. DW3 noticed a male was running. He then lost sight of him. He could not identify him.

Findings Of The Trial Judge At The Conclusion Of The Trial

(1)

It would appear that the appellant had put up a defence of alibi. The appellant had not filed the notice of alibi under

9

[2016] 1 LNS 310

Legal Network Series

section 402A of the Criminal Procedure Code (CPC) within the stipulated time;

(2)

The evidence of the appellant that he could not remember his whereabouts at the time of the murder and that he could not be outside his house was not supported by the evidence of DW2 and DW3. The appellant assertion was a mere denial and an afterthought;

(3)

Though DW3 could not identify the appellant, the appellant was however positively identified by PW5 and PW6. At all material times, the appellant was proved to be present at the scene of crime;

(4)

The trial judge found the evidence of the appellant, DW2 and DW3 had not cast any reasonable doubt on the prosecution’s case. The prosecution, therefore, had proved its case against the appellant beyond reasonable doubt. He was found guilty, convicted and sentenced to death by hanging.

The Appeal

[23] Learned counsel for the appellant had advanced two issues before us. Firstly, the credibility of PW5 was questionable as there was a serious discrepancy between her evidence in court and her police report ie, Sandakan Report No. 12330/09, exhibit P8.

[24] Secondly, the identity of the appellant as the murderer of the deceased was not satisfactory. The identification evidence by PW6 that

10

[2016] 1 LNS 310

Legal Network Series

the appellant was the person absconding from the scene of the murder was doubtful. Thus, learned counsel invited us to discharge and acquit the appellant of the charge.

Our Decision

[25]

The prosecution’s case is solely dependent on one eye witness,

PW5 who witnessed the murder of the deceased by the appellant. PW5 was said to be unreliable witness. This was untrue. PW5 had extensively narrated the events on the night in question which was reproduced by the trial judge in his judgment at paragraphs 6 to 10 at pp 221-224 of the Appeal Record, Vol. 1.

[26] However, PW5 readily admitted that there was a discrepancy between her evidence in court and the contents in her police report,

exhibit P8. In court, PW5 said that the appellant was all the time with her and the deceased, when they left the Hsiang Garden coffee shop. However, in exhibit P8, PW5 reported that “Apabila kereta kami sampai di kawasan depan UMW Toyota, seorang lelaki Melayu umur dalam lingkungan 40an telah menahan kereta kami.”

[27] In his examination-in-chief at p.68 of Appeal Record, Vol. 1, PW5 conceded that she lied when she lodged exhibit P8. The reason being that she was in fear when the appellant threatened to harm her and her child. PW5 said “saya takut Johan ataupun Basah bin Bakhtiar membunuh anak saya.”

[28] It was in evidence that the appellant had threatened her twice. The first time he threatened her in the car, right after the murder when

11

[2016] 1 LNS 310

Legal Network Series

the appellant uttered the words “Kalau kau tunjuk aku, aku bunuh juga keluarga kau macam ini.” PW5 was threatened by the appellant

the second time when the latter called on her handphone and said

“Jangan kau cakap saya yang buat, jangan kau tunjuk aku, kalau tidak anak mu aku bunuh.”

[29] Because of the threats alluded above, PW5 was too scared to tell that the appellant was in her company in the car from the Hsiang Garden coffee shop. That was why PW5 stated in her police report, in exhibit P8 that they gave a lift to a Malay man who stopped their car in front of UMW Toyota.

[30] Be that as it may, the rest of her report was true. PW5’s fear, however, had disappeared when the appellant was arrested. Having learned that the appellant was captured, PW5 informed PW8 that part of her police report, exhibit P8 as alluded in paragraph 26 above was a lie. PW5 voluntarily informed PW8 without any prompting. She had succintly explained to the court the discrepancy between her testimony in court and her police report, exhibit P8. The explanation was accepted by the trial judge.

[31] As regards the blood stain of the deceased which was not found on PW5’s clothing, the evidence disclosed as follows. She sat on the front passenger seat on the left of the deceased (driver). The appellant was grabbing the deceased’s face. The deceased struggled. Then the deceased’s tilted onto her right shoulder. The deceased was injured and bleeding on the right side of his neck. She hugged the deceased. Her clothing was stained with the blood. While on the way to the police

12

[2016] 1 LNS 310

Legal Network Series

station, PW5 stopped at her house. She changed to a new clothing. The blood stained clothing was surrendered to the police.

[32] In cross examination, learned counsel attempted to impeach the credibility of PW5 but failed. She was found to be a credible witness by the trial judge. In paragraph 30 of his judgment at p 232 of the Appeal Record, Vol. 1, the trial judge found as follows:

“[30]

The evidence given by PW5 and her demeanour when she gave

her evidence showed that she is a truthful in her evidence. Hence, I find

that that PW5 is a credible witness and I accept her testimony.”

[33]

It is trite law that the appellate court is slow to disturb the finding of

credibility of a witness, as the trial judge in this case, because His

Lordship had an audio visual advantage of seeing and hearing the witness, that is, PW5.

[34]

The

next

issue

advanced

by

the

defence

was

the

evidence

of

identification of the appellant. PW5 testified that it was the appellant who killed the deceased in the car. The identification of the appellant in the identification parade as the killer was satisfactory. Again PW5 identified the appellant in the course of the trial by way of a dock

identification. It would appear that the identification of the appellant in the identification parade was superfluous as the appellant was familiar and recognised by PW5. PW5 had known the appellant for 3 months prior to the murder of the deceased. PW5 knew the appellant as “Johan.”

13

[2016] 1 LNS 310

Legal Network Series

[35] As regards PW6, he was a police constable attached at Balai Polis Sandakan. PW6 had identified the appellant in the identification parade as the man whom he had met and subsequently fled from the scene of the murder. PW6 also identified the appellant in the dock when he testified in court. The trial judge at paragraph 25 p.230 of the Appeal Record, Vol. 1 had evaluated the evidence of PW6 and found as follows:

“PW6 testified that he can identify the accused as he had the opportunity to look at his face while he asked him about the accident that he thought, had occurred. PW6 had seen the accused’s face clearly at the night of the incident, he identified the accused at the said identification parade and had also identified the accused in the court. Hence, there is strong evidence that the accused was the assailant that had caused the injury to the deceased which had caused his death.”

[36] However, learned counsel had submitted that the trial judge ought to be prudent with the identification evidence of PW6. His Lordship ought to test PW6’s identification evidence with prudence and accepted it only when it was so highly probable that its truth can safely be accepted. “The test excludes from its orbit blind faith of a true believer, because prudence and credulity do not go together”: per Raja Azlan Shah J (as his Majesty then was) in K.S. Roberts v. PP [1970] 2 MLJ 137. Moreover an honest witness may make mistake on identity.

[37] On the issue of identification, it is pertinent at this stage to refer to the case of Arumugam Muthusamy v. PP [1998] 3 CLJ 592 where two questions of identification evidence were brought to the Federal Court under reference. The facts are these. The applicant was convicted for theft of a motorcar and was sentenced to 14 months imprisonment. In convicting the applicant, the trial Magistrate had relied, inter alia, on the

14

[2016] 1 LNS 310

Legal Network Series

evidence of PW1 and PW2 who identified the applicant from the dock. The trial Magistrate was of the view that the dock identification evidence was sufficient. The trial Magistrate did not warn herself of an uncorroborated evidence of identity as postulated in R v. Turnbull guidelines, thus occasioned a clear miscarriage of justice. The trial Magistrate’s finding and conviction was affirmed by the High Court. Following this, two questions of identification evidence were raised in the reference to the Federal Court as follows:

(1)

Whether dock identification in court after a long lapse of time without holding an identification parade can be a sufficient basis for a conviction (Question 1); and

(2)

Whether in a case dependent solely on dock identification the failure by a magistrate to direct himself with regard to the visual evidence of identification in accordance with the established guidelines in R v. Turnbull [1976] 3 All ER 549 resulting in a conviction based on uncorroborated evidence of identity being quashed would constitute a substantial miscarriage of justice (Question 2).

[38] The question, as framed in Question 1 was lacking in precision or essential facts for a definite answer. The facts such as the length of time lapse before identification, the circumstances under which the witness has seen the accused, the distance between him and the accused, the quality of lighting, how long the witness sees the accused, any conversation between them and whether the witness has known or seen the accused before the incident etc.

15

[2016] 1 LNS 310

Legal Network Series

[39]

A dock identification of the accused for the first time in court at the

trial is undesirable. It is a good practice to hold an identification parade.

To require identification parade in all circumstances is too stringent.

[40] Therefore, the answer to Question 1 depends on the particular facts and circumstances of each case.

[41] As regard Question 2, the presence of the words “whether”, “resulting in a conviction”, “being quashed”, “would constitute a substantial miscarriage of justice”, the answer is clearly that such a conviction would not constitute a substantial miscarriage of justice.

[42]

In this case, as found by the trial judge, PW6 had seen the

appellant’s face clearly on the night of the incident. He identified the appellant at the identification parade and at the trial in court. The crime was perpetrated by the road side in the midnight on 30.9.2009 at Kampung Pukat, Jalan Pasir Puteh. The scene of crime was bright from street light. PW6 had accosted the appellant. Both of them stopped. He talked with the appellant for about one minute. He asked the appellant what had happened. However, the appellant did not reply. He remained silent. PW6 did not see the appellant in a splitting glance under pressing circumstances or his view of the appellant was blocked. This is not the evidence of visual identification as envisaged in the R v. Turnbull. Therefore, the R v. Turnbull guidelines do not apply.

[43]

The appellant

was arrested a

mere two days

after the

murder

which occurred on 2.10.2009. Then he was detained in the lockup at Balai Polis Sandakan. Before PW6 identified the appellant in identification parade, he was on duty as a lockup sentry at all material

16

[2016] 1 LNS 310

Legal Network Series

times. The lockup sentry was stationed in the “charge room” where a list was posted in the said room. The list contained among others, the name of the detainees, the sections of the law under which the detainees were detained, their police report numbers and the names of the investigating officer (I.O). PW6 knew that the appellant was arrested and detained in the said lockup. PW6, too, knew that ASP Naaem was the I.O of the appellant’s case.

[44]

The identification parade was held on 7.10.2009, that is, 5 days

after the appellant’s arrest. At the risk of repetition, PW6 identified the appellant. It was not a long lapse of time after the murder. The appellant’s face was still fresh in PW6’s mind. It is pertinent to reproduce the relevant questions and answers relating to this issue during an examination-in-chief of PW6. This is found in p.115 of the Appeal Record, Vol. 1 as follows:

Q686

:

Adakah kamu berpeluang melihat tertuduh sebelum kamu

A

:

melakukan kawad cam pada hari pengecaman? Ya

Q687

:

Dimana kamu lihat dia?

A

:

Semasa di tahan di lock up

Q688

:

Bagaimana kamu boleh melihat beliau di lock up?

A

:

Saya melihat semasa saya masuk kerja (on duty) sebagai pengawal lock up.

Q689

:

Pengecaman yang kamu lakukan sewaktu kawad cam terhadap tertuduh, adakah ianya kerana kamu

17

[2016] 1 LNS 310

Legal Network Series

berpeluang melihat beliau sewaktu di lock up ataupun sewaktu kamu melihat di Jalan Pasir Puteh?

A

:

Kedua-dua, semasa di Pasir Puteh dan sewaktu bertugas di lock up.

[45]

As can be seen from the answer to Q689 in bold above, PW6 was

able to identify the appellant on both occasions – firstly, at the scene of the crime at Jalan Pasir Puteh and secondly, while on duty at the lockup where the appellant was detained. The identification of the appellant by PW6 in the identity parade was good, satisfactory and safe to rely upon. Having sight of the appellant in the lockup by PW6, it was not a pre-plan, a collusion or deliberate. PW6 saw him in the lockup due to the exigencies of his duty as a lockup sentry. He further identified the appellant in court which corroborated his identification of the appellant in the identification parade.

[46] The ability of PW6 to identify the appellant as the man who ran away from the scene of the murder soon after the murder, coupled with the evidence of PW5 who positively identified the appellant as the man who stabbed the deceased, had satisfactorily proved the identity of the appellant as the murderer beyond any reasonable doubt. We see no cogent reasons to interfere with the decision of the trial judge on this issue.

[47] Further, PW5’s evidence that the appellant was the assailant was supported by the evidence of PW6. When PW6 met PW5 at the scene of crime, PW5 straight away told PW6 that the person who ran away was the man who stabbed her boyfriend (the deceased). In this respect, the supportive evidence of PW6 lend credence to PW5’s evidence. PW6

18

[2016] 1 LNS 310

Legal Network Series

firmly disagreed with

learned

counsel

who

put

to

him

in

cross

examination that PW5 did not inform him that the escapee was the man

who

stabbed

her

boyfriend

(the

deceased).

The

relevant

cross

examination of PW6 follows:

at

p.121

of the

Appeal

Record, Vol.

1

runs

as

Q736

:

Setujukah saya katakan kepada kamu bahawa wanita di tempat kejadian (ie, PW5) tidak ada bagi tahu kamu yang lelaki berlari dari tempat kejadian yang menikam teman lelaki dia. Setuju?

A

:

Saya tidak setuju.

[48] To put the other way, PW6 agreed that PW5 had informed him at the scene of crime that the man who ran away from the scene had stabbed her boyfriend (the deceased). Thus, the credibility of PW5 implicating the appellant was fortified by the evidence of PW6.

[49] The contemporaneous conduct of the appellant who ran away after stabbing the deceased was relevant and admissible by virtue of section 8 of the Evidence Act 1950. We are aware that in a number of cases it has been said that absconding from the scene is not in itself evidence of guilt. The editors of Sarkar’s Law of Evidence (15 th Ed) have this to say:

“Mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. The act is a relevant piece of evidence to be considered along with other evidence but its value would depend upon the circumstances of each case.”

[50]

was

In this case, the appellant’s conduct of absconding from the scene

not

the

sole

evidence

indicating

his guilt.

There

are

other

19

[2016] 1 LNS 310

Legal Network Series

admissible evidence against the appellant as discussed above. Even the distressed condition of PW5 amounted to corroboration: see R v. Redpath [1962] 46 Cr. App. R 319. PW5 had cried for help after the appellant stabbed the deceased and he ran away.

[51] The appellant had advanced an alibi defence. But no alibi notice under section 402A of CPC was given: see Vasan Singh v. PP [1979] 2 CLJ 402. The appellant had called his wife, DW2 in support of his alibi but it must be excluded for non-compliance of section 402A of CPC. At any rate, she was a most unreliable witness. DW3 was also unhelpful to the appellant. The appellant’s evidence would therefore be evidence of a bare denial. The defence had failed to cast any reasonable doubt on the prosecution’s case. The prosecution had, therefore, proved its case beyond reasonable doubt.

Conclusion

[52] In conclusion, having regard to the totality of the evidence, we were of the unanimous view that the trial judge had not erred in law and fact warranting our intervention. The appellant’s conviction is safe. The trial judge decision is affirmed.

Dated: 12 MAY 2016

(ZAMANI A RAHIM)

Judge Court of Appeal Malaysia

20

[2016] 1 LNS 310

Legal Network Series

Counsel:

For the appellant - Sharatha Masyaroh John Ridwan Lincon; M/s Lincon & Co

Advocates & Solicitors,

Lot 83A, 1 st Floor, Block D1, Lorong BU 8/1, Utama Place, Bandar Utama, Mile 6, Jalan Utara,

  • 90000 Sandakan,

Sabah.

For the respondent - Norinna Bahadun, Deputy Public Prosecutor, The Attorney General’s Chambers

No. 45 Persiaran Perdana,

  • 62100 Putrajaya.

Case(s) referred to:

Vasan Singh v. PP [1979] 2 CLJ 402 KS Roberts v. PP [1970] 2 MLJ 137 Arumugam Muthusamy v. PP [1998] 3 CLJ 592 R v. Redpath [1962] 46 Cr App R 319

Legislation referred to:

Criminal Procedure Code, s. 402A

Evidence Act 1950, s. 8 Penal Code, s. 302

21