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MALAYSIA

IN THE HIGH COURT IN SABAH AND SARAWAK AT SIBU

[CRIMINAL TRIAL NO.: SBW-45B-5/6-2018]

BETWEEN

PUBLIC PROSECUTOR … PROSECUTOR

AND

EDDY ANAK GANENG … ACCUSED

GROUNDS OF JUDGMENT

[1] The accused is charged with the murder of his brother-in-law,

one Baring anak Birang, on 11 November 2017 at about 11.00pm
at a hut built on a pepper field in Kapit, Sarawak.

[2] The charge was framed in the following manner: -

“That you, on 11 November 2017, at about 11.00 pm, at a

house near to Rumah Jandah, Nanga Nansang, Sungai
lbau, Kapit, in the District of Kapit, in the State of
Sarawak, did commit murder by causing the death of
BARING ANAK BIRANG (NRIC : 630216-13-5753), and
you thereby committed an offence punishable under section
302 of the Penal Code [Act 574]”

[3] The prosecution called 9 witnesses. There were 2 investigating

officers, namely, Inspector Isan Sari bin Hj Hassang (PW4) and
Inspector Ugendran a/l Nesarathnam (PW11) who testified. 3
chemists, 2 scientific officers, a photographer, a medical officer,

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and a forensic medicine specialist, Dr Norliza Binti Ibrahim

(PW5) also testified, as did a Tuai Rumah, Jandah anak Mengga
(PW7).

[4] There was only 1 eyewitness, Suti anak Ganeng (PW6), the wife
of the deceased and the sister of the accused.

[5] PW6 testified that on 11 November 2017, her husband was shot
at 11.00pm while he was lying down in their hut after they had
been working at their pepper field during the day. In her words:-

“Q Can you tell the court from the beginning about the
incident?

A On that night, Eddy called my name. He asked, are

you there? and I replied, yes. Then I opened the
door. While I still standing at the door, Eddy straight
away entered the hut and shot my husband.

Then he said to me, “I go back now to report myself

to the police station”.

Q When you testified the accused called your name and

then later you opened the door, can you tell the court
further how did the accused call your name?

A He said “oh Suti, diak dek?” (oh Suti, are you

there?) I answered, “auk, ditok aku” (yes, I am
here). He said “bukak pintu.” Then I opened the
door as he always came to visit us and joined us for
meals and he was the one who always being (sic) an
informer for us especially to inform when someone
passed away at the long house.”

See NOP, Q&A 425 – 426.

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[6] PW6 went on to testify: -

“After being shot, my husband got up and walked until the

door and then he fell down face down. After that I went
back to the long house to inform the people in the long
house about the incident. I went there on foot without any
light with me and I was crying at that time.”

See NOP, Q&A 432.

[7] The Tuai Rumah of the nearest longhouse, Rumah Jandah, in

which PW6 resided, testified that on 12 November 2017 at about
1.30 a.m., while he was in Kapit, he received a call from one
Umim ak Tandok that the deceased had been shot. As Umim was
not called as a witness, the fact that the Tuai Rumah (PW7)
received a call at about 1.30 a.m. is established but his
testimony as to what Umim told him will be treated as hearsay
and disregarded.

[8] Shortly thereafter, the accused surrendered himself at the Kapit

Police Station at about 3.00 a.m. The pertinent testimony of the
investigating officer, Isan Sari bin Hj Hassang (PW4) is as
follows: -

“Q220 Briefly, can you tell the court about the arrest
report? A I arrested Eddy anak Ganeng in front of IPD
Kapit together with one shotgun, cartridge, 4 bullets and
one waist bag.

Q221 Can you tell the court why the arrest made on the
accused at IPD Kapit?

A Because the accused surrendered himself.

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Q222 What about the time you conducted the arrest, can
you tell the court?

A at about 3 a.m.”

[9] PW4 then filed an arrest report bearing the reference

Kapit/002548/17 which was marked as exhibit P33.

[10] Although PW6 testified that the shotgun licence was seized from
the accused, it appears from exhibit P36, a contemporaneous
police report lodged by PW4 that the shotgun licence was
surrendered by PW6 the next day at about 10.50 a.m. at the
Kapit Police Station. The relevant examination-in-chief of PW4
reads as follows: -

“Q254 When did you seize the shotgun licence? A On

13.11.2017.

Q255 At what time and where?

A At about 10.50 a.m. located at IPD Kapit compound.

Q256 From whom you seized the shotgun licence?

A It was surrendered by the Suti anak Ganeng, a lady.

DPP: For Court‟s information, parties have no dispute

that Suti anak Ganeng handed over the shotgun licence to
this witness.

Mr. Wee: I confirm.”

[11] PW6’s erroneous recollection of who had surrendered the

shotgun licence at most requires her testimony to be treated with
utmost circumspection, but the issue of who had shot the
deceased does not turn on it. I do not consider it a material

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discrepancy which creates a reasonable doubt as to the

identification evidence of PW6, more so as the accused had
surrendered himself at the Kapit Police Station.

[12] During the trial, various items were tendered and marked as
exhibits, including a shotgun [exhibit P12(A)], an expended
cartridge [exhibit P13(A)] which was found in the barrel of the
shotgun, as well as 4 live cartridges [exhibit P34(1-4)].

[13] A psychiatrist report dated 2 November 2018 states that the

accused does not suffer from any psychotic illness and at the
time of the offence, he knew what he was doing, what is right or
wrong, and that he is fit to plead and stand trial. It was marked
as exhibit P65 without objection from the defence which did not
in any case raise or attempt to adduce any evidence of insanity,
the burden of which lies on the accused.

[14] The defence submitted that “there is negative evidence to show

that the gun Exhibit P12(A) or the expended cartridge Exhibit
P13(A) was used to shoot and kill the deceased Baring Anak
Birang”. See Submission for the accused, enclosure 48,
paragraph 2 (2.1) (f).

[15] The defence professed to be “dumbfounded” by the learned

DPP’s submission after the close of the prosecution’s case that
“it was never the evidence of the prosecution that the shotgun
exhibit P12(A) is the shotgun used by the accused to shoot the
deceased.” See NOP page 196, lines 20 – 24.

[16] Learned counsel for the accused argued that as the expended
cartridge could not have been fired from the shotgun, there was
no evidence of the murder weapon. He also argued that there
was no gunpowder residue and gunshot residue to implicate the
accused, though PW11 was not cross-examined on his testimony

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that the accused’s shirt was wet when he was arrested, and it
was raining on the night that the deceased was shot. See NOP,
Q&A 711.

[17] Reliance was placed on the chemist Mohd Riduan bin Md

Bakhir’s finding in his chemist report exhibit P11, that he
(PW2) did not detect elements of gunpowder residue on exhibits
E1 (the single barrel shotgun), E4 (one Veno Paris brand pouch
bag), E6 (a yellow short sleeve round-neck t-shirt), E7 (a red
torchlight) and E16 (comprising one specimen bag, one plastic
receptacle labelled Baring ak Birang and one stick of cotton
swab).

[18] Reliance was also placed on the chemist Renuka a/p

Vitapamoorthy’s report (exhibit P10) wherein she (PW9) had
noted the absence of gunshot residue: -

“Setelah dianalisis, saya dapati sisa tembakan senjatapi

atau partikel-partikel karektoristik sisa tembakan
senjatapi tidak dikesan pada kesemua stub logam „ E4A‟,
„E4B‟, „E6A‟, „E6B‟, „E17‟, „E18‟, „E19‟ dan „E20‟
tersebut.”

[19] However, the chemist Mohd Riduan bin Md Bakhir’s witness

statement (WSPW-2) would have made it clear that the expended
cartridge was not fired from the shotgun. In WSPW-2, it was
stated: -

“The comparison of the characteristic marks on the

cartridge cases were successfully carried out using a
comparison microscope. On comparison, I found that the
characteristic marks on the expended cartridge case E2
were not matched to those on the test fired cartridge cases
E22a, E22b, E22c, E22d and E22e. Hence, I am of the

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opinion that the expended cartridge case E2 could not be

fired using shotgun E1.”

[20] I am inclined to think that, with the chemist reports written by

PW9 and PW2 (exhibits P10 and P11 respectively) and extended
to the defence prior to the trial, there is no element of surprise.
As is standard practice, the learned DPP tendered the shotgun,
live bullets and the expended cartridge in full disclosure of the
items seized from the accused, as he did with the deceased’s
underwear, yellow t-shirt and other items which were not, and
could not be said to have been used to cause the death of the
deceased.

[21] The essential ingredients which are required to prove a charge of

murder are set out in sections 299 and 300 of the Penal Code.

[22] Section 299 reads: -

“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.”

[23] Section 300 reads: -

“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;

(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;

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(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.”

[24] In the case at hand, it is incumbent upon the prosecution to

prove: -

(i) Baring anak Birang died as a result of the gunshot

wounds inflicted on him;

(ii) by the accused; and

(iii) the accused’s act was carried out with intention

which came within one of the 4 categories listed in
section 300, that is, the accused: -

(a) intended to cause Baring’s death by inflicting

the gunshot wounds, or

(b) intended to inflict the gunshot wounds which he

knew would be likely to cause Baring’s death,
or

(c) intended to inflict the gunshot wounds which

are sufficient in the ordinary course of nature to
cause Baring’s death, or

(d) knew that his act of shooting Baring would in

all probability cause death or such injury as is

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likely to cause death and he carried out the act

without any excuse or justification.

[25] In Public Prosecutor v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ
457, 467, Gopal Sri Ram JCA (as he then was) laid down the
steps to be taken by a trial court at the end of the prosecution’s
case: -

“(i) … subject the evidence led by the prosecution in its

totality to a maximum evaluation. Carefully scrutinise the
credibility of each of the prosecution‟s witnesses. Take
into account all reasonable inferences that may be drawn
from that evidence. If the evidence admits of two or more
inferences, then draw the inference that is most favourable
to the accused;

(ii) ask yourself the question: If I now call upon the

accused to make his defence and he elects to remain silent
am I prepared to convict him on the evidence now before
me? If the answer to that question is „Yes‟, then a prima
facie case has been made out and the defence should be
called. If the answer is „No‟ then, a prima facie case has
not been made out and the accused should be acquitted;

(iii) after the defence is called, (if) the accused elects to

remain silent, then convict;

(iv) after (the) defence is called, (if) the accused elects to

give evidence, then go through the steps set out in Mat v
Public Prosecutor [1963] MLJ 263.”

See also Balachandran v. PP [2005] 1 CLJ 85.

[26] I will now proceed to consider the evidence at the close of the
prosecution’s case, as required by section 180 of the Criminal

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Procedure Code, and subject it to a maximum evaluation, in

line with the apex court cases cited above.

[27] In the Statement of Agreed Facts marked as exhibit D, which

had been signed off by the learned DPP, the learned counsel for
the accused and the accused himself, it was agreed that Baring
anak Birang was the deceased and his body had been identified
by his son, Rentap anak Baring. The identity of the deceased
was confirmed during the course of the trial. See NOP, page 88.

[28] I accept the evidence of Dr Norliza binti Ibrahim (PW5) that the
deceased died from gunshot wounds: -

“Q312 Please refer to your witness statement at pages 14,

15 and 16 under the sub-heading of conclusion. Briefly,
can you explain to the Court about your conclusion at
pages 14, 15 and 16 of your witness statement?

A My conclusion is based on my post mortem examination

findings whereby I concluded that the cause of death of the
deceased is due to chest injury due to gunshot wound. In
the conclusion, I explained which part of the chest that has
injuries that could lead to the death. In the conclusion also
I summarized external injury that the deceased suffered
and possible causation of the injuries. And I also noted
that the deceased is not suffered any other disease or
injury that could cause or contribute to his death. That is
roughly the brief description of my conclusion.”

[29] Although learned counsel for the accused briefly explored

poisoning or relied upon it, to create a reasonable doubt as to
the cause of death, that was not pursued in his written
submission. As was explained by PW5: -

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“For cases like this, whereby the injuries suffered by the

deceased were sufficient to lead to the death of a person,
toxicology analysis is not particularly important. The
deceased in this case indeed has injury that is fatal that
regardless of the toxicology analysis, the injury itself
could lead to the deceased‟s death. Toxicology analysis
will be very important for me to conclude a cause of death
if there is no significant injury seen during the post
mortem examination or there is no significant disease that
could lead to his death.”

See NOP, Q&A 400.

[30] Further, the deceased, after being shot, got up and walked a few
steps to the door and fell face down. See NOP, Q&A 432. There
can hardly be any doubt that the deceased died as a result of the
gunshot wounds received.

[31] I accept the identification evidence of PW6, having had the

opportunity to observe her demeanour and the manner in which
she testified. PW6 testified in a matter-of-factly voice, without
rancour. She did not waver or hesitate when cross-examined in
relation to her narrative of how her brother, the accused, shot
her husband.

[32] She had heard her brother calling out to her before she opened
the door of her hut. Since they are siblings, she can be expected
to recognize his voice, more so as he had “always” visited PW6
and the deceased, and joined them for meals at the hut. The
accused would also drop by to inform them if someone had
passed away at Rumah Jandah. See NOP, Q&A 426.

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[33] She would have seen him when she opened the door of her hut
and “(h)e straight away entered our hut and shot my husband .”
See NOP, Q&A 429.

[34] Referring to Q&A 452 in the notes of proceedings, learned

counsel for the accused contended that the identity of the
gunman is in doubt as there was only a dim light. In this regard,
it is important to refer to the whole of PW6’s testimony: -

Q452 Do you agree that you could not see the face of the
shooter clearly?

A I agree as there is only a dimmed light but I am very

sure it was him.

Q453 Who do you mean by “it was him”?

A Eddy.

[35] The words “but I am very sure it was him” (Eddy) underscore
the certainty with which PW6 testified that it was the accused
who shot the deceased. Apart from the 1 st cross-examination
question and her answer, Q&A 444 (“(y)ou testified that there is
a battery operated light around the area of the hut. Do you
agree that therefore, there is no light in the hut? A: I agree.
There is no electricity there and also at our long house”),
PW6’s testimony on the identification of the person who shot
the deceased was certain and convincing in her examination-in-
chief and cross-examination: -

Examination-in-chief

Q433 The incident, according to you, happened at about 11

p.m. Can you tell the court how did you know it was

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the accused who came to your hut on that day at that

material time and shot at your late husband?

A I can recognize his voice and I myself saw him.

Q434 Can you explain further to the Court when you

testified “I myself saw him”, what do you mean by
that?

A I myself saw that it was him who entered the hut and
shot at my late husband. No one else ever enter into
my hut since I built the hut until the day of the
incident.

Cross-examination

“Q445 Do you agree that there is total darkness in the hut

when your husband was shot?

A It was lighted with the dimmed light.

Q446 The dimmed light that you are talking about is

outside of the hut, do you agree?

A It was inside the hut.

Q447 Earlier on you said that there is no light in the hut in

Q&A 444, do you agree?

A There was a light, the light was operated with the

battery.

Q448 So you are now saying something different, that there

is a light or lamp inside the hut.

A There was a light inside the hut but it was a dim

light.

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Q449 Is this light that you are referring to a battery

operated light?

A Yes, it operated with 3 batteries.”

[36] There is ample evidence that the deceased was shot in his chest,
as may be seen from, among others, exhibit P42(4 and 14) the
photographs taken at the mortuary of the Kapit Hospital and
exhibit P47(9 and 10) the photographs taken at the hut. The light
was not so dim that the accused could not see the deceased lying
down. The accused would have certainly seen that he was
shooting the deceased in the chest.

[37] There is of course also the evidence of the forensic medicine

specialist, PW5, which has already been referred to and
considered.

[38] The accused’s nocturnal visit to the deceased’s hut, calling out
to his sister, PW6, and shooting the deceased, these acts, taken
together, speak of his intention. The location of the bullet
wound on the deceased’s chest leaves no doubt about the
intention of the accused, and, as submitted by the learned DPP,
“the injury (was) caused by the accused with the intention of
causing bodily injury and the bodily injury is sufficient in (the)
ordinary course of nature to cause death .” See NOP, page 191.

[39] In Chan Kwee Fong v. PP [2010] 3 CLJ 671, the Court of

Appeal held that intention may be inferred from the
circumstances of the case, and how the fatal injury was inflicted.
The Court of Appeal applied the test laid down by V. Bose J, in
Virsa Singh v. State of Punjab AIR [1958] SC 465, 467, where
His Lordship said:

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“In considering whether the intention was to inflict the

injury found to have been inflicted, the enquiry necessarily
proceeds on broad lines as, for e.g., whether there was an
intention to strike at a vital or a dangerous spot, and
whether with sufficient force to cause the kind of injury
found to have been inflicted. It is, of course, not necessary
to enquire into every last detail as, for instance, whether
the prisoner intended to have the bowels fall out, or
whether he intended to penetrate the liver or the kidneys
or the heart. Otherwise a man who has no knowledge of
anatomy could never be convicted, for, if he does not know
that there is a heart or kidney or bowels, he cannot be said
to have intended to injure them. Of course, that is not the
kind of enquiry. It is broad-based and simple and based on
common sense: the kind of enquiry that „twelve good men
and true‟ could readily appreciate and understand.
(emphasis added)”

[40] In respect of the submission for the accused that “the

prosecution had failed to lead any evidence about why the
accused shot the deceased,” motive is not an essential element
of the offence of murder, unlike intention as defined under
section 300 of the Penal Code. As explained in Ratanlal &
Dhirajlal’s Law of Crimes, 26 th ed, at page 87: -

“The law takes into account the primary or immediate

intention and not the secondary mediate or remote. As
every man is presumed to intend consequence of his act, it
is from the consequences that the Court has often
presumed the intention of the accused in doing a
particular act. The law does not look for motive: it looks
only to the intention. Motive and intention are two
different things. Motive is directed ultimate and, good or

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bad, which person hopes to secure, his intention is

concerned with the immediate effects of his acts.”

[41] The direct testimony of PW6 on the shooting by the accused,

coupled with the surrender of the accused at the Kapit Police
Station, makes compelling evidence. In PP v. Jufri bin Nanti
[2016] 1 LNS 53, Abang Iskandar Abang Hashim JCA (as he
then was) held: - “43…However, in this case, there could only
be one reasonable inference that can be drawn from the act of
surrendering to the police on his own volition, and to our mind,
that one reasonable inference has been the inference that the
learned trial Judge had made in this case. She had inferred that
from those circumstantial evidence, only guilt on the part of the
Appellant could be reasonably inferred. To our mind, she did
not err there.” In the face of PW6’s eyewitness testimony and
the accused’s act of turning himself in at the Kapit Police
Station (which was unchallenged in cross-examination), it does
not matter whether the accused had switched shotguns or
whether the ballistics test was incorrectly carried out or whether
the shotgun which was used was never recovered.

[42] The case of Nurasmira Mualat Abd Jaffar & Ors v. Ketua Polis
Negara & Ors [2015] 2 CLJ 231 (Court of Appeal), [2018] 1
CLJ 585 (Federal Court, which dealt with the sole issue of
exemplary damages) cited by the defence, can be distinguished.

[43] That was a case where the dependents of the deceased (“Jaafar”)
sued the Inspector General of Police and others for loss of
dependency, as well as exemplary and aggravated damages.
They claimed that Jaafar had been unlawfully killed by a team of
police who had stopped Jaafar’s car, following which all the
people in the car including Jaafar were killed by police gunfire
within 10 seconds. The police claimed that they acted in self-

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defence, and pleaded in their defence that a firearm was

recovered from Jaafar’s car. The serial number of the firearm in
the defence was different from the serial number produced in
Court.

[44] In the case at hand, however, the charge does not refer to a
specific shotgun and it was not the prosecution’s case that the
shotgun seized from the accused when he turned himself in at
the Kapit Police Station was the murder weapon.

[45] Further, it appears that the Court of Appeal in Nurasmira

(supra) at pages 246 – 247 totally disbelieved the police when it
held: -

“What is reprehensible and need to be condemned are fake

encounters as the facts of the instant case prima facie will
show and the failure of the relevant authorities to
discipline such officers and worse still claim self defence
under the Police Act which has no relevancy to the
killing.”

“In the instant case, there was a police team involved in

blocking the two cars at a public place and it is said
within ten seconds all the four persons were shot dead. No
evidence was led to show any grave threat that warrant the
drastic step and why the shooting incident could not have
been avoided, etc. We are of the considered view the whole
exercise was not spontaneous act of self defence and it
only showed that the four persons were executed by the
police officers.”

[46] The Court of Appeal set out its grounds in paragraph 15 of the
judgment, comprising paragraphs (a) – (q). A perusal of its
grounds shows that the evidence put up by the police was wholly

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lacking and unacceptable. That would obviously include the

purported eyewitness testimony that Jaafar shot at the police,
and can be said to be implicit in its finding that there was no
evidence to warrant the drastic step of opening fire on all 4
occupants in the car. In the instant case, by contrast, there is no
good reason to disbelieve PW6’s testimony that her brother shot
her husband, which evidence is supported by the accused’s
surrender at the police station.

[47] After hearing oral submissions and having gone through the
procedure laid down by section 180 of the Criminal Procedure
Code, as explained by the apex court in the cases referred to
above, this Court held that a prima facie case of murder had
been made out against the accused.

[48] It was explained by the Court to the accused that he had 3

options: -

(1) The accused can give evidence on oath from the

witness box and his testimony will be subject to
cross- examination.

(2) The accused’s second option is to give an unsworn

statement from the dock.

(3) The accused’s third option is to remain silent.

Whichever option the accused chooses, he is at liberty to

call witnesses to testify on his behalf.

[49] The accused asked to consult his counsel. After the stand down
in proceedings, learned counsel for the accused informed the
Court that he had conferred with the accused who understood the
options available to him. The accused elected to remain silent
and not to call any witnesses, whereupon the Court adjourned to

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the next morning to enable learned counsel for the accused to

further explain the options open to him and the consequences.

[50] The next morning, the accused informed the Court that he
understood the consequences but chose to remain silent and not
to call any witnesses, following which learned counsel for the
accused closed his case.

[51] Directions were given for the exchange of written submissions.

[52] In PP v. Seow Wei Hoong [2009] 1 LNS 1504, the High Court
held: -

“The effect of the decisions of the Court of Appeal and

Federal Court in ordering the accused to enter his defense
is that the prosecution had, at the end of the prosecution
case, successfully proven a prima facie case and should
the accused remain silent, the court will convict the
accused. In this case the accused chose to give sworn
evidence in the stand. What that means is that the court ‟s
duty is not merely to see whether the accused had raised a
reasonable doubt in the prosecution case. The law also
requires the court to re- evaluate all the evidence of the
prosecution and defense and ask itself whether the
prosecution had proven its case beyond reasonable doubt.
This rationale for the position of the law is that the burden
to prove its case remains throughout the trial on the
prosecution and there is no duty at all on the accused to
prove his or her innocence.”

[53] From that judgment, it is clear that there has to be a re-

evaluation of all the evidence of the prosecution and the defence
to ascertain whether the prosecution had proven its case beyond
reasonable doubt, but if the accused elects not to give evidence

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or call rebuttal evidence after the Court finds that there is a

prima facie case, the Court will have to convict him.

[54] As was held by the Federal Court in Balachandran v. PP (supra)

at page 101, “… where the accused remains silent there will be
no necessity to re-evaluate the evidence in order to determine
whether there is a reasonable doubt in the absence of any
further evidence for such a consideration. The prima facie
evidence which was capable of supporting a conviction beyond
reasonable doubt will constitute proof beyond reasonable
doubt.”

[55] The position was also laid down by the Federal Court in PP v.
Mohd Radzi Abu Bakar (supra) at page 466: -

“If the court, upon a maximum evaluation of the evidence

placed before it at the close of the prosecution case, comes
to the conclusion that a prima facie case has not been
made out, it should acquit the accused. If, on the other
hand, the court after conducting a maximum evaluation of
the evidence comes to the conclusion that a prima facie
case has been made out, it must call for the defence. If the
accused then elects to remain silent, the court must
proceed to convict him. It is not open to the court to then
re-assess the evidence and to determine whether the
prosecution had established its case beyond a reasonable
doubt. The absence of any evidence from the accused that
casts a reasonable doubt on the prosecution‟s case renders
the prima facie case one that is established beyond a
reasonable doubt (emphasis added).”

[56] On 28 May 2019, this Court once again reminded the accused of
the 3 options open to him, and the consequences if he were to
remain silent and not call any witnesses on his behalf, that is, he

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would be convicted and sentenced to death. The accused again

elected to remain silent and declined to call any witnesses to
testify for him and the Court was left with no choice but to
convict him on the charge of murder.

[57] The accused is sentenced to death, as required by section 302 of

the Penal Code.

[58] In accordance with section 277 of the Criminal Procedure

Code, it is hereby ordered that the accused is to hang by the
neck until he is dead.

Dated: 28 MAY 2019

(LIM HOCK LENG)

Judicial Commissioner
High Court Sibu

COUNSEL:

For the prosecution - DPP Muhammad Tajul Aariffin Musa; Jabatan

Peguam Negara Malaysia Sibu

For the accused - Wee Wui Kiat & Christine Lim; Battenberg &
Talma Sibu

Case(s) referred to:

Public Prosecutor v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457

Balachandran v. PP [2005] 1 CLJ 85

Chan Kwee Fong v. PP [2010] 3 CLJ 671

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Virsa Singh v. State of Punjab AIR [1958] SC 465

PP v. Jufri bin Nanti [2016] 1 LNS 53

Nurasmira Mualat Abd Jaffar & Ors v. Ketua Polis Negara & Ors
[2015] 2 CLJ 231 (Court of Appeal), [2018] 1 CLJ 585 (Federal
Court, which dealt with the sole issue of exemplary damages)

PP v. Seow Wei Hoong [2009] 1 LNS 1504

Legislation referred to:

Criminal Procedure Code, ss. 180, 277

Penal Code, ss. 299, 300, 302

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