AHMAD NAJIB ARIS v. PP
FEDERAL COURT, PUTRAJAYA
ARIFFIN ZAKARIA, CJ (MALAYA); NIK HASHIM, FCJ; AUGUSTINE PAUL, FCJ; HASHIM YUSOFF, FCJ; ZULKEFLI MAKINUDIN, FCJ
CRIMINAL APPEAL NO: 05-25-2007 (B)
27 MARCH 2009
JUDGMENT
Zulkefli Makinudin FCJ:
Introduction
[1] The appellant was charged in the High Court at Shah Alam
on the following two charges:-
First Charge
Bahawa kamu pada
14 Jun 2003, antara jam lebih kurang 1.00 pagi hingga 5.00 pagi, di Batu 7,
Jalan Klang Lama, di dalam daerah Petaling, dalam negeri Selangor Darul Ehsan
telah melakukan bunuh dengan menyebabkan kematian ke atas Ong Lay Kian (P) (KP
No. 740718-08-5204) dan oleh yang demikian kamu telah melakukan suatu kesalahan
yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan.
Second Charge
Bahawa kamu pada
14 Jun 2003, antara jam lebih kurang 1.00 pagi hingga 5.00 pagi, di Batu 7,
Jalan Klang Lama, di dalam daerah Petaling, dalam negeri Selangor Darul Ehsan
telah melakukan rogol ke atas Ong Lay Kian (P) (KP No. 740718-08-5204) dan oleh
yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah
seksyen 376 Kanun Keseksaan.
[2] The learned judge of the High Court found the appellant
guilty and convicted him on both charges. He was sentenced to death for the
offence under s. 302 of the Penal Code and was sentenced to twenty years
imprisonment and ordered to be given 20 strokes of the rottan for the offence
under s. 376 of the Penal Code. He appealed to the Court of Appeal against the
decision of the High Court. The learned judges of the Court of Appeal dismissed
the appeal and affirmed the conviction and sentence in respect of both the
charges. Being dissatisfied with the decision, the appellant now appeals to
this court against the whole decision of the Court of Appeal.
The Case For The Prosecution
[3] The evidence adduced by the prosecution from the
relevant prosecution witnesses may be summarized as follows:
[4] On the night of 13 June 2003, Pearly a/p Visvanathan
(PW3) together with her two daughters, Ong Lee Cheng and Canny Ong Lay Kian
("the deceased") had dinner together with friends of the deceased at
Restoran Monte, Bangsar Shopping Centre (BSC) as a farewell for her before she
returned to the United States on 14 June 2003. They went to BSC in a Proton
Tiara bearing registration number WFN 6871 ("P145"). They arrived at
BSC at about 8.30pm and had dinner there until about 10.30pm. When they were
ready to leave, the deceased went to the basement car park alone to take the
parking ticket which was left behind in the car P145 to make payment at the
autopay station at the lower floor of BSC. PW3 and her other daughter, Ong Lee
Cheng waited for the deceased at the lower floor. PW3 waited for about twenty
minutes but the deceased still did not show up and when Ong Lee Cheng called
the deceased's mobile phone, no answer was received and the call went to
"voice mail". PW3 and Ong Lee Cheng then went down to the basement
but failed to find the deceased. PW3 also discovered that their car P145 was
not there. PW3 then lodged a report with a BSC guard, PW10 and later lodged a
police report P10.
[5] On the same day, at about 11.15pm L/Cpl. Ravichandran
a/l Subramaniam (PW4), a police officer together with a colleague were on crime
prevention patrol duty at the Taman Perindustrian Jaya, Kelana Jaya area near
Subang. There, PW4 noticed that a car had stopped beside the roadside. Half an
hour later, PW4 and his colleague passed the same route again and noticed that
the car P145 was still there. PW4 and his colleague stopped their motorcycle.
PW4 then knocked on the glass window on the driver's side of the car P145. When
the glass window was lowered, PW4 saw that the driver was a male Malay and on
the passenger seat was a female Chinese. PW4 shone his flashlight towards both
of them and introduced himself as a police officer and showed them his
authority card. PW4 then asked for the identity cards of the driver and the
passenger. When the driver gave his identity card (P12), PW4 shone his
flashlight at the identity card and asked the driver for his name. The driver
answered that his name was Ahmad Najib bin Aris. PW4 then looked at the
identity card (P11) given by the passenger and asked "awak Ong Lay
Kian?" ("You are Ong Lay Kian?"). The passenger only nodded. At
that time, the driver was wearing a cap. PW4 asked him to remove his cap. After
the driver had removed his cap, PW4 compared the driver's face with the
photograph in the driver's identity card and found them to be the same. PW4
identified the driver as the appellant and the female Chinese as the deceased.
PW4 then asked the appellant to get out of the car but the appellant refused.
[6] Meanwhile, PW4 saw the deceased gesture to him by
pressing both her palms together to her chest with the palms outwards facing
the appellant and then making a prayer-like gesture. The deceased made this
gesture when the appellant was looking at PW4 but when the appellant turned
towards the deceased, the deceased stopped her gesture. When the appellant
refused to get out of the car, PW4 tried to open the door of the car but at
that time, the appellant sped off. PW4 fired two shots at the tyres of the car.
PW4 and his colleague also attempted to pursue the car with their motorcycles
but failed. The car seen by PW4 was similar to the photographs of the car P145
which are P7A and P7B which were shown to PW4. The appellant's identity card
P12 and the deceased's identity card P11 were still with PW4 when the appellant
sped off in the car. PW4 then lodged a police report (P13) about the incident.
[7] At about 12 midnight, Aminah bt. Ishak (PW5) was on her
way to KLIA to pick up her sister in a Kancil car driven by her brother-in-law.
They stopped their car in front of Bangunan Bali at Jalan Sungai Way. They
stopped there to wait for another van which would also make the trip to KLIA
but had turned back home to get a milk bottle. About twenty feet in front of
the Kancil car PW5 saw a Proton Tiara (P145) car by the roadside. A man whom
PW5 identified as the appellant then came out from the said car towards the
Kancil car and asked whether he could borrow a car jack. PW5 could see the
man's face clearly as the surrounding area was well lit by street lights even
though the appellant was wearing a cap. PW5 also saw a woman in the car P145
but the woman did not get out of the car. PW5 identified the woman as the
deceased. PW5 noticed that the deceased appeared to gesture to her and also
appeared to be frightened. The deceased gestured with her face in the direction
of the appellant but when the appellant turned towards her, the deceased
stopped her gesturing. PW5 then noted down the registration number of the Proton
Tiara WFN 6871 on a piece of paper. When the appellant failed to open the
screws to one of the tyres of the car P145, the appellant went off in the said
car. PW5 then made a police report at the Subang Jaya police station about the
suspicious incident and gave the registration number of the Proton Tiara to a
police officer L/Kpl. Ruslan bin Hamzah (PW11). PW11 then took down the report
and the registration number in his Station Diary (P21).
[8] At about 1am on 14 June 2003, Azizam bin Ismail (PW12),
a technician with Syarikat UTIC (Utility Information Centre) was driving his
company van to his office by way of Jalan Klang Lama. At a road construction
area at Jalan Klang Lama, PW12 stopped the van to relieve himself. PW12 then
scoured the area looking for a piece of wood to support the back seat of the
van which was broken. PW12 then saw a Proton Tiara in the area which was later
identified as P145. Inside the car P145, PW12 saw a woman with fair skin lying
down at the back seat without her clothes and her breasts exposed. PW12 also
saw the driver of the car who was a man with light hair and a wide forehead
hurriedly running away from PW12. PW12 also saw that the front right tyre of
the car had become deflated. The car P145 was then driven away from there. PW12
then went to his company office at Bukit Lanjan, Damansara. When PW12 came back
from his office using the same Jalan Klang Lama route, he saw the same car P145
parked at the same place but a bit forward from before. PW12 then stopped the
van and saw that nobody was in the car P145. PW12 then took a mobile phone
(P129) belonging to the deceased and a sling-on bag with a Maybank Yippie logo
(P23) from the back seat of the car P145. The sling-on bag with a Maybank
Yippie logo (P23) contained: -
(i) 3 condoms;
(ii) A lighter;
(iii) Cigarettes;
(iv) A ball pen;
and
(v) Paper.
[9] PW12 then returned to his house at Jalan Gasing and then
drove to Penang to meet his wife. PW12 also called his wife using the telephone
P129 which he had taken from the car P145. On his way to Penang, PW12 sold the
telephone P129 to a telephone vendor in Ipoh while the sim card P24 in P129 was
sold to PW13.
[10] On 14 June 2003 at about 8pm, the car P145 was found by
Constable Mohd Zulkefli bin Abdul Ghani (PW8) behind shop No. 49, Jalan
Petaling Utama 1. He saw a lot of blood stains at the back seat of the car. The
car P145 was then brought to the Petaling Jaya Police Station for further investigation.
On 17 June 2003 at about noon, a burnt body was found by E. Soon Tai (PW6) in a
manhole at Batu 7, Jalan Klang Lama. PW6 then called the police and informed
them of his finding.
[11] DNA tests with a blood sample from the mother (PW3) and
father (PW36) of the deceased confirmed that the body was that of Ong Lay Kian
(the deceased). Pathology expert Kasinathan Nadeson (PW30) who conducted an
autopsy on the deceased found a piece of cloth tied around the deceased's neck
at least three rounds.
[12] Both the deceased's hands were tied with a cloth folded
two or three times. The cause of death was strangulation by the cloth around
the deceased's neck and PW30 did not dismiss the theory that the deceased died
as a result of bleeding in the abdomen caused by a sharp weapon. On 20 June
2003 Supt. Ahmad Razali bin Yaacob (PW32) inspected the appellant's house at
Lot 122, Jalan Pantai Permai 6, Kg. Kerinci, Pantai Dalam, Kuala Lumpur. In the
appellant's room under a table a pair of Jack Blue Classic jeans (P68A) with a
Calvin Klein belt (P68B) and a blue cap were found. The jeans had blood stains
and DNA tests confirmed that it is the deceased's blood. PW30 who conducted the
autopsy also took a vaginal swab from the deceased and DNA tests by
Primulapathi a/l Jayakrishnan (PW27) showed that it is the appellant's semen.
[13] The blood stains on the back seat (P57A) and driver's
seat (P55A) of the car (P145) were confirmed to belong to the deceased. Six
strands of hair (P56C) found in the car, based on DNA tests were also confirmed
to be the deceased's hair. Besides that, DSP Amidon bin Anan (PW15) also found
an unpaid BSC parking ticket (P20) on the dashboard of the car P145.
[14] A CCTV is installed at the basement of BSC and two CCTV
tapes P19C and P19D were analyzed by forensic experts PW15 and PW16.
(a) On the analysis of the CCTV tape P19C, PW15 found:-
- On 13 June 2003
at 8.24pm until 8.26pm, a Proton Tiara was seen as if searching for a parking
lot (P29A, B & C).
- At 8.39pm an
image of PW3 and the deceased walking near the 9C pillar towards the lift is
seen (P29E).
- On 13 June 2003
at 8.49pm, an image of a man was seen walking at the parking area (P29F).
- On 13 June 2003
between 10.22pm and 10.24pm, the man is seen walking around the 9C pillar area.
- On 13 June 2003
at 10.32pm, an image of a Proton Tiara car is seen moving out of the parking
area (P29K).
PW15 confirmed that the man in the CCTV tape P19C looks like
the appellant. The appellant's image is seen carrying a sling bag with a strap
and wearing a baseball cap.
(b) DSP Mohd Noor bin Ahmad (PW16) also video-captured the
images (still photo) and used a "video investigator system" for
"zooming" and "enhancement" on the images.
[15] The cloth tying the deceased's hand (P62A) was found to
have the same colour, texture and composition with the muslin cloth (P82A) from
the appellant's workplace at MAS which is used to clean airplanes. Sivakumar
a/l Ramiah (PW26), a MAS Storekeeper, said in his evidence that he normally saw
the appellant coming to work carrying a sling bag with a Maybank logo similar
to P29.
Findings Of The High Court
[16] The High Court having considered the oral and documentary
evidence tendered by the prosecution at the close of the prosecution case ruled
that a prima facie case had been made out by the prosecution. The learned judge
of the High Court accepted the evidence of the prosecution witnesses PW4, PW5
and PW12 as to the identification of the appellant at the various scenes or
locations where the appellant was found to have been with the deceased. The
learned judge, after a trial within a trial to determine the admissibility of
the confession (P122) made to the Magistrate by the appellant ruled that the
confession was admissible in evidence. The learned judge also accepted the
evidence of the Chemist (PW27) and the evidence of the DNA analysis and results
(P83) with regard to the relevant exhibits produced by the prosecution. Based
on the circumstantial evidence adduced by the prosecution the learned judge
came to the conclusion that a prima facie case had been made out and called for
the defence of the appellant. The appellant chose to remain silent after the
three alternatives were explained to him. Upon the appellant choosing to remain
silent the learned judge duly convicted the appellant on the two charges framed
against him and passed sentence on him accordingly.
Findings Of The Court of Appeal
[17] The Court of Appeal held, inter alia, that the
confession (P122) given by the appellant to the Magistrate which was held by
the learned trial judge as being admissible was inadmissible. In arriving at
the conclusion the Court of Appeal considered the evidence of what had
transpired between the time when the appellant was given to the charge of ASP
Muniandy a/l Shanmugam (PW44), the investigating officer until the time when he
made the confession. This was to show the existence of circumstances that
raised a strong suspicion that the appellant had been pressured by the police
into making the confession. The appellant did not make the confession in a
state of contrition but in the hope of getting a light sentence. Further, the
Court of Appeal took the view that since the confession was inadmissible, it
became necessary to undertake an examination and evaluation of the rest of the
evidence in order to consider whether it warranted the conviction of the
appellant for the rape and murder of the victim. The Court of Appeal accepted
the evidence on the identification of the appellant by PW4 and PW5. The Court
of Appeal also accepted the evidence of the Chemist (PW27), the DNA (P83)
evidence and its results as being in compliance with the requirement of s. 90A
of the Evidence Act 1950 ("the Act"). Relying on circumstantial
evidence the Court of Appeal found that the evidence in its entirety led only
to one conclusion, that it was the appellant and no one else who was
responsible for what happened to the victim on that night. The Court of Appeal
therefore dismissed the appeal and affirmed the conviction and sentence of the
appellant.
The Appeal
[18] Before this court the appellant in his petition of
appeal had put forward 27 separate grounds of appeal for argument. The grounds
in the petition of appeal were combined under six distinct headings by learned
counsel for the appellant in his submission before us. They are as follows:-
(a) In the light
of the findings of the Court of Appeal that the High Court judgment was of no
assistance to the Court of Appeal, the Court of Appeal thereafter erred, in
undertaking an examination and evaluation on the rest of the evidence, on its
own to consider whether it was safe to maintain the conviction, a process which
is against the principles on appellate powers of the Court of Appeal in hearing
an appeal.
(b) The
dissatisfactory manner in which the Court of Appeal accepted the issue of
identification of the appellant by PW4 and PW5, and the reliance on the CCTV
images (P19A-P19B and P29A-P29K) and the cursory manner in which the Court of
Appeal disregarded the accepted discrepancies with regard to the attire of the
man (purportedly identified as the appellant ).
(c) The acceptance
of the DNA report (P83) in breach of the requirements of s. 90A of the Act and
the acceptance of the Chemist's (PW27) testimony on the issue that the muslin
cloth (P82A) was of the same kind of fabric that was found around the neck or
wrists of the victim (P59A and P61A).
(d) The erroneous
findings that the appellant and no one else was possibly responsible for the
crimes from all available evidence.
(e) Upon rightly
rejecting the admissibility of the confession (P122), the Court of Appeal erred
in its failure to consider setting aside the conviction, or at the very least
to order a retrial after the end of the prosecution's case, and to allow the
appellant to make a fresh decision as to whether to exercise his option to give
sworn evidence or to remain silent.
(f) The need for
this court to revisit the law on the burden of proof vis-a-vis the right to
remain silent.
[19] I shall now deal with the above main grounds of appeal
and other ancillary issues related to them.
Power Of Appellate Court To Review Or To Re-evaluate All
Available Evidence
[20] As regards the first main ground of appeal raised by
the appellant, I am of the view that the Court of Appeal has the power to
review or to re-evaluate all the evidence available as adduced by the
prosecution. The Court of Appeal is in a position to do so in the present case
even though the grounds of decision of the trial judge as appearing in the
appeal records is found lacking in specific findings and with no reasons for the
findings. In a case involving purely a question of fact, the Court of Appeal is
free to determine whether or not the various findings of the trial Court are
correct. (See Mohamed Mokhtar v. PP [1972] 1 MLJ 122). In the present case even
though the Court of Appeal took the view that the High Court judgment was of no
assistance, it nevertheless had considered and subjected all the evidence
adduced by the prosecution to a critical re-examination. The Court of Appeal
had given sound reasons as to why the evidence was admitted and how it had
implicated the appellant. There was no miscarriage of justice against the
appellant as the Court of Appeal's decision was based on evidence adduced from
the witnesses called by the prosecution as appearing in the appeal records. I
am therefore of the view that the Court of Appeal did not err on this issue.
Identification Of The Appellant
[21] On the second ground of appeal in respect of the
contention of the appellant that the Court of Appeal had erred in arriving at
its finding of fact on the identification of the appellant by PW4 and PW5, I
find that the evidence adduced by the prosecution clearly showed that PW4 and
PW5 had positively identified the appellant. The relevant facts from the
evidence of PW4 in relation to the identification of the appellant by PW4 can
be narrated as follows:-
(a) On 13 June
2003, at 11.15pm, PW4 saw a car at Taman Perindustrian Jaya, Kelana Jaya which
was similar to the car P145.
(b) Half an hour
later, after seeing that the car P145 was still there, PW4 inspected the car.
When the car window was lowered, PW4 saw a male Malay and a Chinese woman in
the car. PW4 shone his torchlight at both of them.
(c) PW4 then asked
for both their identity cards. When PW4 received the identity card from the
man, PW4 shone his torchlight at the identity card and asked the man what his
name was. The man answered "Ahmad Najib bin Aris". After seeing the
woman's identity card, PW4 asked "awak Ong Lay Kian" ("you are
Ong Lay Kian") and the woman nodded her head.
(d) PW4 then asked
the man to take off his cap so that he could compare the driver's face with the
photograph in the identity card and found the face to be the same.
(e) When PW4 was
inspecting the car P145, there were street lights and even without the
torchlight, PW4 could identify the person in the car. PW4 questioned the man
for about five minutes before the man sped off in the car P145, leaving behind
his identity card P12 and the deceased's identity card P11 with PW 4.
(f) When PW4
questioned the man, PW4 noticed that the Chinese woman in the car (the
deceased) was nervous and it was as if she was trying to gesture to him for
help and pointing at the appellant but when the appellant turned towards her,
the deceased would stop making any gestures. This incident made it possible for
PW4 to recognize the deceased and the appellant.
(g) In court, PW4
identified the appellant as the man in the car P145.
(h) During the
identification parade, PW4 was also able to identify the appellant.
[22] From the evidence explained above, it is clear that PW4
had positively identified the appellant as the person who was with the deceased
on the night of 13 June 2003.
[23] The relevant facts from the evidence of PW5 in relation
to the identification of the appellant by PW5 can be narrated as follows:-
(a) At about 12 in
the morning of 14 June 2003, PW5 and his family were on their way to KLIA in a
car and a van to pick up his sister who was arriving from Sabah. However, the
car they were travelling in stopped at Bangunan Bali, Sungai Way to wait for
the van which had turned back to get a milk bottle left at home.
(b) While waiting
for the van, PW5 saw a Proton Tiara parked about 25 feet in front of the Kancil
car, PW5 was in. PW5 saw a man coming out from the Proton Tiara to the Kancil
car PW5 was in. The surrounding area was clearly lit by street lamps.
(c) The man came
straight to PW5's brother-in-law and wanted to borrow a car jack. While
speaking to PW5's brother-in-law, the man stood outside the car PW5 was in. PW5
was able to see the man's face clearly.
(d) PW5 also saw a
woman seated at the front passenger seat but she did not come out of the Proton
Tiara car. PW5 saw the woman from a close distance which was immediately in
front of the Proton Tiara car.
(e) When the woman
saw PW5, the woman looked as if she was making a gesture. Her eyes, face and
mouth looked as if she was in fear and she was pointing with her face to the
man who was borrowing the car jack. However, when the man turned towards her,
the woman immediately stopped gesturing. The man however failed to open the
screw to the tyre of the Proton Tiara and the man then hurriedly left the place
in the Proton Tiara car.
(f) PW5 was in
front of the Bangunan Bali for about twenty minutes. During cross-examination,
PW5 maintained that she could identify the man's face. (See p. 97 of the appeal
records).
(g) In court, PW5
identified the appellant as the said man.
(h) PW5 had also
noted down the Proton Tiara registration number as WFN 6871 on a piece of paper
(P145). PW5 then lodged a police report at the Subang Jaya Police Station. PW11
then received PW5's complaint and took it down in PW11's Station Diary.
(i) PW5 also
identified the appellant in an identification parade.
[24] From the detailed evidence of PW5, it is clear that PW5
identified the appellant on that night in front of the Bangunan Bali. The issue
of PW4 and PW5 identifying the appellant was considered by the Court of Appeal
and based on the facts and the evidence, it is my considered view that the
Court of Appeal did not err in deciding that PW4 and PW5 had identified the
appellant.
Discrepancy
[25] On the discrepancy in the evidence of PW4 and PW5 with
regard to the attire of the appellant as alleged by him, I am of the view that
there can be inferences drawn from a set of facts and evidence. The evidence of
PW4 was that the appellant wore a dark blue sweater and a dark coloured cap.
The evidence of PW5 was that the appellant wore a light coloured shirt, a
bright coloured pants and a bright coloured cap. The evidence of PW15 on the
other hand when seeing the CCTV image was that the appellant wore a bright
coloured shirt and a dark coloured pants.
[26] In my view the above discrepancies are not material as
what is important is the positive identification by PW4 and PW5 of the
appellant's face. Regarding the clothes PW4 saw the appellant wearing, which
was a dark blue sweater as compared to the evidence of PW5 who saw the
appellant wearing a light coloured shirt, the logical explanation is that when
PW4 saw the appellant in the car on the night of 13 June 2003, it was a cold
night with the appellant wearing a sweater. However, when PW5 saw the appellant
in front of Bangunan Bali, the appellant could have taken off the sweater as he
wanted to change a flat tyre. The appellant was also proved to have had a sling
bag with a Maybank logo on it and the sweater could have been kept in the bag.
In any event, it is normal for different witnesses to give different
descriptions about what a person was wearing as each witness's observation and
recollection varies from each other. The learned judges of the Court of Appeal
had given a reasonable explanation based on the facts and inferences derived
from the evidence as shown in their grounds of judgment on this point.
The Existence Of The Identity Card Of The Appellant And
Police Report Lodged By The Appellant
[27] For the appellant it was also argued that the learned
judges of the Court of Appeal had erred in arriving at their finding of fact
that with the existence of the identity card and police report lodged by the
appellant, it proved that the appellant was at the said locations as stated in
the evidence. On this issue it is to be noted that on 14 June 2003, at 3.10pm,
the appellant had lodged a police report (P18) about his missing identity card.
This was confirmed by PW9 who took the complaint from the appellant and
identified the appellant. A copy of P18 was found and seized from a table in
the appellant's house. The fact that the appellant had lost his identity card
and had lodged a report clearly showed that the appellant's identity card was
not with him. This is consistent with the evidence of PW4 who said that he held
the appellant's and the deceased's identity card when he asked the appellant
some questions before the appellant sped away in the car P145 when PW4 asked
the appellant to get out of the car.
[28] It is my judgment that the Court of Appeal had arrived
at a correct finding of fact on the issue of the lost identity card and
concluded that the appellant had lodged a false report on its loss. This
finding of fact is based on evidence adduced by the prosecution. PW4 could not
have been in possession of both the identity cards of the appellant and the
deceased if he did not receive it from the appellant and the deceased
themselves.
The Identification Parade
[29] On the issue of the identification parade raised by the
appellant that the police did not comply with accepted procedure in this case,
it is my view that it is not in all cases that the prosecution is required to
conduct an identification parade. I am of the view that it is only where the primary
issue is the identity of the accused or whenever the case against an accused
person depends wholly or substantially on the correctness of one or more
identification of the accused which the defence alleges to be mistaken that the
principles or the guidelines as laid down in the case of Regina v. Turnbull
& Anor. [1977] 1 QB 224 need be followed and the identification parade
conducted. In the present case it is to be noted that the identification of the
appellant by PW4, PW5 and PW12 was not based on a fleeting glimpse as in
Turnbull 's case. Unlike the facts in Turnbull 's case there are also other
forensic and supporting evidence connecting the appellant with the crime in the
present case. It is my considered view that the quality of the identification
evidence of PW4, PW5 and PW12 in the present case is good and remains good
throughout the prosecution's case and that the question of a mistaken identity
cannot arise. Therefore even discounting the identification parade, the
prosecution witnesses PW4, PW5 and PW12 had indeed positively identified the
appellant.
The Admissibility Of The Chemist Report (P83) And The CCTV
Tapes (P19A-D)
(a) Chemist Report (P83)
[30] Learned counsel for the appellant argued that under s.
90A of the Act, the prosecution must produce a certificate under s. 90A(2) of
the Act to confirm that the Chemist Report (P83) was produced by a computer
"in the course of its ordinary use " before P83 can be admitted as
evidence. Section 90A of the Act reads as follows:-
90A. (1) In any
criminal or civil proceeding a document produced by a computer, or a statement
contained in such document, shall be admissible as evidence of any fact stated
therein if the document was produced by the computer in the course of its
ordinary use, whether or not the person tendering the same is the maker of such
document or statement.
(2) For the
purposes of this section it may be proved that a document was produced by a
computer in the course of its ordinary use by tendering to the court a certificate
signed by a person who either before or after the production of the document by
the computer is responsible for the management of the operation of that
computer, or for the conduct of the activities for which the computer was used.
(3) (a) It shall
be sufficient, in a certificate given under subsection (2), for a matter to be
stated to the best of the knowledge and belief of the person stating it.
(b) A certificate
given under subsection (2) shall be admissible in evidence as prima facie proof
of all matters stated in it without proof of signature of the person who gave
the certificate.
(4) Where a
certificate is given under subsection (2), it shall be presumed that the
computer referred to in the certificate was in good working order and was
operating properly in all respects, throughout the material part of the period
during which the document was produced.
(5) A document
shall be deemed to have been produced by a computer whether it was produced by
it directly or by means of any appropriate equipment, and whether or not there
was any direct or indirect human intervention.
(6) A document
produced by a computer, or a statement contained in such document, shall be
admissible in evidence whether or not it was produced by the computer after the
commencement of the criminal or civil proceeding or after the commencement of
any investigation criminal or civil proceeding or such investigation or
inquiry, and any document so produced by a computer shall be deemed to be
produced by the computer in the course of its ordinary use.
(7)
Notwithstanding anything contained in this section, a document produced by a
computer, or a statement contained in such document, shall not be admissible in
evidence in any criminal proceeding, where it is given in evidence by or on
behalf of the person who is charged with an offence in such proceeding the
person so charged with the offence being a person who was:-
(a)
responsible for the management of the operation of that computer or for the
conduct of the activities for which that computer was used; or
(b) in any
manner or to any extent it involved, directly or indirectly, in the production
of the document by the computer.
[31] I am of the view that a certificate under s. 90A(2) of
the Act is not the only method to prove that a document was produced by a
computer "in the course of its ordinary use". On this point I would
first like to cite the case of Gnanasegaran Pararajasingam v. PP [1997] 4 CLJ 6
where Shaik Daud, JCA said at pp. 17-18:-
On reading through
section 90A of the Act, we are unable to agree with the construction placed by
learned counsel. First and foremost, section 90A which had seven subsections
should not be read disjointedly. They should be read together as they form one
whole provision for the admissibility of documents produced by computers. As
stated earlier, section 90A was added to the Act in 1993 in order to provide
for the admission of computer-produced documents and statements as in this
case. On our reading of this section, we find that under subsection (1), the
law allows the production of such computer-generated documents or statements if
there is evidence, firstly, that they were produced by a computer. Secondly, it
is necessary also to prove that the computer is in the course of its ordinary
use. In our view, there are two ways of proving this. One way is that it 'may'
be proved by the production of the certificate as required by subsection (2).
Thus, subsection (2) is permissive and not mandatory. This can also be seen in
subsection (4) which begins with the words 'Where a certificate is given under
sub-section (2).
These words show that a certificate is not required to be
produced in every case. It is our view that once the prosecution adduces
evidence through a bank officer that the document is produced by a computer, it
is not incumbent upon them to also produce a certificate under subsection (2)
as subsection (6) provides that a document produced by a computer shall be
deemed to be produced by the computer in the course of its ordinary use.
[32] In appreciating the above passage it must first be observed
that s. 90A(1) deals with the admissibility of a document which was produced by
a computer in the course of its ordinary use as a matter of fact. It refers to
a document that was produced by a computer in the course of its ordinary use.
It is this requirement that must be proved. On the other hand s. 90A(6) deals
with the admissibility of a document which was not produced by a computer in
the course of its ordinary use and is only deemed to be so. This distinction is
not recognized in the above passage and is addressed by Augustine Paul, JCA (as
he then was) in Hanafi Mat Hassan v. PP [2006] 3 CLJ 269 at pp. 301-305:-
A careful perusal
of section 90A(1) reveals that in order for a document produced by a computer
to be admitted in evidence it must have been produced by the computer in the
course of its ordinary use. It is therefore a condition precedent to be
established before such a document can be admitted in evidence under section
90A(1). The manner of establishing this condition has been prescribed. It can
be proved by tendering in evidence a certificate as stipulated by section
90A(2) read with section 96A(3). Once the certificate is tendered in evidence
the presumption contained in section 90A(4) is activated to establish that the
computer referred to in the certificate was in good working order and was
operating properly in all respects throughout the material part of the period
during which the document was produced. Section 90A(4) must therefore be given
its full effect as it has a significant role to play in the interpretation and
application of section 90A. Ordinarily a certificate under section 90A(2) must
be tendered in evidence in order to rely on the provisions of section 90A(3)
and (4). However, the use of the words 'may be proved' in section 90A(2)
indicates that the tendering of a certificate is not a mandatory requirement in
all cases. In PP v. Chia Leong Foo [2000] 4 CLJ 649, a plethora of authorities
was referred to in ruling that facts to be presumed can, instead, be proved by
other admissible evidence which is available (at pp 722-723). Thus the use of
the certificate can be substituted with oral evidence as demonstrated in R. v.
Shepherd [1993] 1 All ER 225 in dealing with a provision of law similar to
section 90A. Needless to say, such oral evidence must have the same effect as
in the case of the use of a certificate. It follows that where oral evidence is
adduced to establish the requirements of section 90A(1)in lieu of the
certificate the presumptions attached to it, in particular, the matters
presumed under section 90A(4) must also be proved by oral evidence. In
commenting on the nature of the evidence required to discharge the burden in
such an event Lord Griffiths said in R. v. Shepherd (supra) at page 231:-
The nature of
the evidence to discharge the burden of showing that there has been no improper
use of the computer and that it was operating properly will inevitably vary
from case to case. The evidence must be tailored to suit the needs of the case.
I suspect that it will very rarely be necessary to call an expert and that in
the vast majority of cases it will be possible to discharge the burden by
calling a witness who is familiar with the operation of the computer in the
sense of knowing what the computer is required to do and who can say that it is
doing it properly.
It must be added that the condition precedent in section
90A(1) coupled with the stipulation on the manner of its proof makes it clear
in unmistakable terms that a document made admissible by the section is only
one that was produced by a computer in the ordinary course of its use; and
inapplicable to one that was not so produced.
The resultant matter for consideration is the proper meaning
to be ascribed to the deeming provision in section 90A(6) in order to determine
whether it can be a substitute for the certificate. A deeming provision is a
legal fiction and is used to create an artificial construction of a word or
phrase in a statute that would not otherwise prevail. As Viscount Dunedin said
in CIT Bombay v. Bombay Corporation AIR [1930] PC 54 at page 56:-
Now when a person
is "deemed to be" something the only meaning possible is that whereas
he is not in reality that something the Act of Parliament requires him to be
treated as if he were.
In commenting on the words "deemed to be" The Law
Lexicon (7th Reprint Ed) by Ramanatha Aiyar says at page 302:-
No doubt the
phrase "deemed to be" is commonly used in statutes to extend the
application of a provision of law to a class not otherwise amenable to it.
Its primary function is to bring in something which would
otherwise be excluded (see Malaysia Building Society Bhd v. Lim Kheng Kim &
Ors. [1988] 3 MLJ 175). In Ex parte Walton, In re Levy [1988] 17 Ch D 746, it
was held that in interpreting a provision creating a legal fiction the court is
to ascertain for what purpose the function is created, and after ascertaining
this, the court is to assume all those facts and consequences which are
incidental or inevitable corollaries to the giving effect of the fiction. It
would be proper and even necessary to assume all those facts on which alone the
fiction can operate (see Shital Rai v. State of Bihar AIR [1991] Pat 110 (FB)).
In so construing a fiction it is not to be extended beyond the purpose for
which it is created (see In re Coal Economising Gas Company [1875] 1 Ch D 182)
or beyond the language of the section by which it is created (see CIT Bombay
City II v. Shakuntala AIR [1966] SC 719). The fiction in the realm of law has a
defined role to play and it cannot be stretched to a point where it loses the very
purpose for which it is invented and employed (see Bindra's Interpretation of
Statutes, 9th edn, p 72). It is required by its very nature to be construed
strictly and only for the purpose for which it was created; and its application
cannot be extended (see FCT v. Comber [1986] 64 ALR 451). Thus it cannot be
pushed so far as to result in a most anomalous or absurd position (see Ashok
Ambu Parmar v. Commr of Police, Badodara City AIR [1987] Guj 147).
It must be remembered that the purpose of tendering in evidence
a certificate under section 90A(2) is to establish that a document was produced
by a computer in the ordinary course of its use. On the other hand section
90A(6) deems a document produced by a computer to have been produced by the
computer in the course of its ordinary use. They are incompatible and
inconsistent with each other. A fact cannot be deemed to have been proved which
specific provision has been made for the mode of proof of the same fact. If
therefore section 90A(6) is to function as a substitute for the certificate it
will render nugatory section 90A(2). This will not accord with the basic rules
of statutory construction. It is perhaps pertinent to bear in mind Madanlal
Fakirchand Dudhediya v. Shree Changdeo Sugar Mills Ltd AIR [1962] 1543 where
Gajendragadkar J said at page 1551:-
In construing
section 76(1) and (2), it would be necessary to bear in mind the relevant rules
of construction. The first rule of construction which is elementary, is that
the words used in the section must be given their plain grammatical meaning.
Since we are dealing with two sub-sections of section 76, it is necessary that
the said two sub-sections must be construed as a whole "each portion
throwing light, if need be, on the rest". The two sub-sections must be
read as parts of an integral whole and as being inter-dependent; an attempt
should be made in construing them to reconcile them if it is reasonably
possible to do so, and to avoid repugnancy. If repugnancy cannot possibly be
avoided, then a question may arise as to which of the two should prevail. But
that question can arise only if repugnancy cannot be avoided.
Every effort must thus be made to reconcile both the
sub-sections in order to avoid a conflict between them.
Such a reconciliation exercise will be greatly facilitated
by a consideration of the object of section 90A(6). Section 90A(1) provides for
the admissibility of a document produced by a computer in any criminal or civil
proceeding. Such a document is in fact a reference to a document whether or not
it was produced by a computer after the commencement of any criminal or civil
proceeding. Accordingly, the applicability of section 90A(6) to documents
produced by a computer '... whether or not...' They were produced after the
commencement of any criminal or civil proceeding etc. will strike at the very
foundation of section 90A(1) as those documents constitute the very basis of
the section. It will result in section 90A(1) being rendered otiose. Such
documents cannot therefore be within the contemplation of section 90A(6). So
section 90A(6) must have some other purpose to serve. Its true scope and
meaning will become clear if it is read in the light of section 90C. It
provides that the provisions of sections 90A and 90B shall prevail over any other
provision of the Evidence Act 1950 thereby making section 90A the only law
under which all documents produced by a computer are to be admitted in
evidence. There may be instances when a document which is sought to be admitted
in evidence may not have been produced by a computer in the course of its
ordinary use even though it is one that is contemplated by section 90A(1). The
document, even though produced by the computer, may not have anything to do
with the ordinary use of the computer. It may, for example, be a letter
produced by the computer which has no bearing on the ordinary use of the
computer. Yet it is still a document produced by a computer. How is this
document to be admitted in evidence bearing in mind the prevailing effect of
section 90C in making all documents produced by a computer admissible only
under section 90A if the condition precedent to its admissibility under section
90A(1) cannot be fulfilled by virtue of it not having been produced by the
computer in the course of its ordinary use? It is this question that is
answered by section 90A(6). The sub-section does not contain the condition
precedent and, instead, contains a deeming provision to the same effect. As its
purpose is to render a document produced by a computer to be one that is
produced by the computer in the ordinary course of its use it can only apply to
a document which is not produced by the computer in the ordinary course of use.
It is incongruous to deem a document to have been produced by a computer in the
ordinary course of its use when it is such a document already. This will become
clear if it is recalled that the object of a deeming provision is to create an
artificial status for something when in reality it is not. As stated earlier
the function of a fiction is to extend the application of a provision of law to
a class not otherwise amenable to it. Thus section 90A(6) can only apply to a
document which was not produced by a computer in the ordinary course of its
use, or, in other words, to a document which does not come within the scope of
section 90A(1). Thus it cannot apply to a document which is already one that is
produced by a computer in the ordinary course of its use. It cannot therefore
be used as a mode of proof to establish that such a document was so produced.
The document must be proved in the manner authorized by section 90A(2). It can
now be discerned with ease that section 90A(6) has its own purpose to serve and
can never be a substitute for the certificate.
[33] I agree with the views expressed in the above passages
from Hanafi Mat Hassan v. Public Prosecutor in the analysis of s. 90A. In
substance therefore the fact that a document was produced by a computer in the
course of its ordinary use may be proved by the tendering in evidence of a
certificate under s. 90A(2) or by way of oral evidence. Such oral evidence must
consist not only a statement that the document was produced by a computer in
the course of its ordinary use but also the matters presumed under s. 90A(4).
On the other hand the presumption contained in s. 90A(6) can be resorted to
only when the document was not produced by a computer in the course of its
ordinary use.
[34] In this case no certificate was tendered as required by
s. 90A(2) for proof of the chemist report (P83). Neither was any oral evidence
adduced to show that the report was produced by a computer in the course of its
ordinary use. It therefore remains that the only evidence available is that the
report was produced by a computer. It is thus appropriate to resort to s. 90A(6)
to presume that the report was produced by the computer in the course of its
ordinary use. With regard to proof of the matters under s. 90A(4) the oral
evidence of PW27 is relevant when he said: -
Saya tidak setuju
saya tidak boleh sahkan computer, program dan kit DNA itu tidak berfungsi
dengan teratur (proper working order). Saya boleh sahkannya. Sekurang-kurangnya
saya telah buat ujian enam kali dengan genotyper dalam kes ini. Sebelum buat
ujian saya telah periksa samada computer itu dalam keadaan baik atau tidak.
(See page 338 of the Appeal Records).
The chemist report (P83) is therefore admissible in
evidence.
[35] The contents of the chemist report (P83) have the
direct effect of linking the appellant to the commission of the offence of
murder and rape by him of the deceased. Firstly, in the appellant's room at his
house in Kg. Kerinci, Pantai Dalam, Kuala Lumpur a pair of Jack Blue Classic
Jeans was found. It had blood stains and the DNA tests confirmed that it is the
deceased's blood. Secondly, PW30 who conducted the autopsy on the deceased took
a vaginal swab from her. The DNA tests of the swab by PW27 proved that it is
the appellant's semen. Thirdly, the blood stains on the back seat (P57A) and
driver's seat (P55A) of the car (P145) were confirmed to be that of the
deceased. Fourthly, six strands of hair (P56C) found in the car, based on DNA
tests, were also confirmed to be that of the deceased.
(b) The CCTV Tapes (P19A-D)
[36] Learned counsel for the appellant submitted that the
Court of Appeal erred in law in admitting the CCTV tapes (P19A-D) as evidence
against the appellant. In the Court of Appeal the arguments focused by the
appellant and the prosecution principally on the weight to be attached to these
CCTV tapes and the images of the appellant produced from them. The appellant
contended that the CCTV images of the appellant cannot be relied on for his
identification as there were many discrepancies as regards the attire of the
man purportedly identified as him besides the images being unclear. The
prosecution on the other hand contended that the images may be quite unclear
but that did not mean that the CCTV tapes could not be admitted as evidence. It
was further contended by the prosecution that only the "weight to be
attached" needs the court's consideration and the prosecution is relying
on the CCTV tapes merely as corroboration of the evidence given by PW4, PW5 and
PW6.
[37] Notwithstanding the above arguments advanced on behalf
of the appellant and the prosecution, I am of the view that before the CCTV
tapes can be admitted as evidence it must be considered whether they are
documents produced by a computer. A CCTV tape clearly falls within the
definitions of "document" and "computer" under s. 3 of the
Act.
[38] Under s. 3 of the Act "document" is defined
as follows:-
'document' means
any matter expressed, described, or howsoever represented, upon any substance,
material, thing or article, including any matter embodied in a disc, tape,
film, sound track or other device whatsoever, by means of:-
(a) letters,
figures, marks, symbols, signals, signs or other forms of expression,
description, or representation whatsoever;
(b) any visual
recording (whether of still or moving images);
(c) any sound
recording, or any electronic, magnetic, mechanical or other recording
whatsoever and howsoever made, or any sounds, electronic impulses, or other
data whatsoever;
(d) a
recording, or transmission, over a distance of any matter by any, or any
combination, of the means mentioned in paragraph (a), (b) or (c),
or by more than
one of the means mentioned in paragraphs (a), (b), (c) and (d), intended to be
used or which may be used for the purpose of expressing, describing, or
howsoever representing, that matter.
[39] A "computer" is defined in the same section
as follows:-
'computer' means
any device for recording, storing processing, retrieving or producing any
information or other matter, or for performing any one or more of those
functions, by whatever name or description such device is called; and where two
or more computers carry out any one or more of those functions in combination
or in succession or otherwise howsoever conjointly, they shall be treat as a
single computer.
[40] A CCTV tape is therefore a document produced by a
computer. It follows that the CCTV tapes (P19A-D) must satisfy the requirements
of s. 90A of the Act before they can be admitted in evidence. As this had not
been done they are inadmissible.
Whether The "Muslin Cloth" (P82A) Was Of The Same
Kind Of Fabric That Was Found Around The Neck Or Wrists Of The Deceased
[41] The appellant has also alleged that the Court of Appeal
erred in arriving at their finding of fact that the "muslin cloth"
(P82A) which was seized from the appellant's office is the same as the cloth
wrapped around the deceased's neck or tied around the deceased's hands (P59A)
and (P61A). On this issue I am of the view that the Court of Appeal did not err
because it had made a reasonable finding of fact based on the opportunity of
access that the appellant had to the "muslin cloth" (82A) which could
be obtained from the appellant's workplace. The evidence of MAS Storekeeper
PW26 on this issue was accepted by the Court of Appeal in proving this fact.
The Court of Appeal had also discussed this issue in detail regarding the
access to this cloth. The Court of Appeal had also given detailed reasons as to
why PW26's evidence was accepted.
[42] Still on the issue of the "muslin cloth",
there is the evidence of the chemist (PW27) to be considered. He is an expert
based on his academic qualification, the courses he undertook, the training and
his vast experience in fabric analysis. Therefore, PW27 is qualified to give
evidence on the texture and composition of the "muslin cloth" (P82A).
PW27 had conducted several tests such as the microscopic test, sulphuric acid
test, quantitative test, burning test and weave pattern test and arrived at a
finding and conclusion that the "muslin cloth" (P82A) which was
obtained by the investigating officer from the appellant's workplace is of the
same type of cloth as that tied to the deceased's wrist. This evidence is
another link between the appellant and the deceased. It is to be noted that
PW27, during cross-examination, did say that the "dissolvent and burning
test" was not conclusive but the microscopic test was conclusive as based
on such test, the "pattern of weave of the materials" can be
determined. The appellant's counsel did not cross-examine PW27 on the
microscopic test in terms of its "reliability of comparison by pattern of
weave." I am of the view that all the tests conducted by PW27 when
combined lead to the conclusion that the "muslin cloth" (P82A) is of
the same type as the cloth found tied around the deceased's wrists.
Whether There Was Any One Else Involved In The Commission Of
The Crime
[43] On the contention of the appellant that the Court of
Appeal erred in arriving at their finding of fact that there was nobody else
involved in the crime other than the appellant himself, I am of the view that
the Court of Appeal is justified in making such a finding. The appellant
alleged that the heavy concrete tyre covering the deceased's body showed that
many people were involved. On this point I find that the evidence of the
investigating officer (PW44) clearly shows that it is possible that the tyre
was pulled and dragged before it was pushed into the manhole. This can be done
as there is a handle on the tyre which makes it possible for the tyre to be
pulled and dragged. In fact, PW44 even demonstrated in court how it could be
done.
[44] The appellant claimed that it is impossible for him to
lift the concrete tyre to the manhole where the body was found. The appellant
argued that as the concrete tyre was beside the road divider it was impossible
for the appellant to lift it. There is no evidence to show the tyre's exact
origin before it was put on top of the manhole. Therefore, the appellant has no
basis to raise this issue. The Court of Appeal had considered this issue
carefully and had reached a finding which is supported by evidence. It is my view
that undue consideration should not be given to this evidence as the act of
covering the body is an act "after the event" which is after the
deceased died from strangulation and/or massive loss of blood. The concrete
tyre could not have caused any internal bleeding as blood stains were found
even in the car.
Evidence Of Existence Of The Opportunity To Commit The Crime
[45] It must also be noted that the appellant had the
opportunity to have committed the crime. (See s. 7 and illustration (c) of the
Evidence Act 1950). The evidence of opportunity in this case has been
supplemented by proof of circumstances of such a nature as to lead to the
inference that it was probable that advantage would be taken by the appellant
of the opportunity. (See Aziz bin Muhamad Din v. PP [1997] 1 CLJ Supp 523). The
evidence adduced by the prosecution showed that the appellant was seen together
with the deceased by the prosecution witnesses, PW4, PW5 and PW12 through the
sequence of events taking place at the various locations.
Whether There Should Be A Retrial Upon The Rejection Of The
Appellant's Confession
[46] The appellant further contended that the learned judges
of the Court of Appeal erred in their evaluation of the prosecution evidence
after having rejected the appellant's confession (P122) and thereafter
affirming the conviction. It was argued that the Court of Appeal should have
set aside the conviction or alternatively made an order for a retrial after the
end of the prosecution's case and allowing the appellant to make a fresh
decision as to whether to exercise his option to give sworn evidence or to
remain silent. On this issue it is my considered view that the appellant's
contention is without basis as there is no legal principle that a conviction
should be set aside when a confession by the accused is rejected by the Court
of Appeal. The Court of Appeal has the discretion to re-evaluate the remaining
evidence and to scrutinize in totality such other evidence, apart from the
confession to determine whether the evidence is sufficient to satisfy all the
elements of the charges against the appellant. After all such steps have been
taken, the Court of Appeal is obliged to scrutinize whether the evidence is
sufficient to affirm the conviction against the appellant. (See PP v. Abdul
Rahman Akif [2007] 4 CLJ 337). The question of whether an order for a retrial
should be made at the end of the prosecution's case therefore does not arise in
this case since the evidence available before the Court of Appeal is sufficient
to support the finding of guilt made by the trial judge. On the same issue it
is untenable for learned counsel for the appellant to contend that the
appellant should be allowed to make a fresh decision as to whether to exercise
his option to give sworn evidence or to remain silent if this court is to order
a retrial at the end of the prosecution's case. The appellant has been accorded
the advantage of a full trial process under the law before the trial judge.
Whatever rights and option he has as to whether to give sworn evidence or to
remain silent must be exercised in that trial unless an Appellate Court on
appeal had made an order setting aside the conviction and ordering a retrial.
Burden Of Proof Vis-a-Vis Right To Remain Silent
[47] Learned counsel for the appellant had also argued of
the need for this court to revisit the law on the burden of proof Vis-a-Vis
right to remain silent. It is the contention of the appellant that the
insertion of the phrase "prima facie case" in the new s. 180 of the Criminal
Procedure Code ("CPC") (Act 593), upon the deletion of the phrase
"if unrebutted would warrant a conviction" as in the old s. 180 CPC,
had created a further problem in the absence of a clear definition of the
phrase "prima facie case" within the new s. 180 CPC. Learned counsel
for the appellant submitted that problems will arise as to the effect of
applying the test of maximum evaluation of the prosecution evidence, upon an
accused exercising his right to remain silent. Learned counsel for the
appellant also submitted that the position of the law in relation to an accused
person exercising his right to remain silent, as pronounced by the Court of
Appeal in the case of Looi Kow Chai & Anor. v. PP [2003] 1 CLJ 734 would
not only be in defiance of the correct burden of proof under the new s. 180
CPC, but also would reduce the coronated status of the substantive right to
remain silent to a mere illusory right.
[48] With respect to the above argument of learned counsel
for the appellant, I am of the view that when the appellant chooses to remain
silent, the court is put in a situation where it has no other choice but to
convict the appellant on both charges as the appellant had failed to rebut the
evidence adduced by prosecution's witnesses. The High Court in the present case
at the end of the prosecution's case had ruled that a prima facie case has been
made out and in coming to that decision, the court had relied on the maximum
evaluation principle as laid down in the earlier decided cases of the appellate
courts. In the case of Looi Kow Chai & Anor. v. PP (supra) the Court of
Appeal at p. 752 said:-
It therefore
follows that there is only one exercise that a judge sitting alone under
section 180 of the code has to undertake at the close of the prosecution case.
He must subject
the prosecution evidence to maximum evaluation and asks himself the question,
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.
[49] It was also explained in that case that there is no
burden on the prosecution to prove a case beyond reasonable doubt at the end of
the prosecution's case. This was stated at p. 757 as follows:-
If the passage is
meant to suggest that the evidence led by the prosecution must receive maximum
evaluation, then we would agree with it. But if what is meant is that the court
ought to go further and determine whether the prosecution at the end of its
case has proved the case against the accused beyond a reasonable doubt, then we
find ourselves in disagreement with the learned judge in that case. In our
view, subjecting the evidence of the prosecution to maximum evaluation to
determine if the defence is to be called does not mean that the prosecution has
to prove its case beyond a reasonable doubt at this intermediate stage.
[50] It is my view that an accused's right to remain silent
is not at all infringed by the principle of "if unrebutted would warrant a
conviction". It means what it says. The evidence adduced must be such that
it must warrant a conviction if it is unrebutted. Therefore, the appellant's
failure to call other witnesses to rebut the prosecution's case leaves the court
with no other alternative but to convict him.
[51] In dealing with the question as to the position of the
law at the end of the prosecution's case and the steps to be taken by the trial
judge, useful reference may be made to the judgment of this court in
Balachandran v. PP [2005] 1 CLJ 85 where the following pronouncements were
made:-
(a) In deciding
whether a prima facie case has been established under the new s. 180 CPC, a
maximum evaluation of all the evidence adduced by the prosecution must be done
and a prima facie case is one that is sufficient for the accused to answer, and
the evidence adduced must be such that it can only be surmounted by evidence in
rebuttal.
(b) If the
evidence is unrebutted, and the accused remains silent, he must be convicted.
Therefore, the test to be applied at the end of the prosecution's case is
whether there is sufficient evidence to convict the accused if he chooses to
remain silent, which if answered in the affirmative, means that a prima facie
case has been made out.
(c) Whenever the
accused has chosen to remain silent, there is no necessity to re-evaluate the
evidence to determine whether there is a reasonable doubt in the absence of any
further evidence.
Conclusion
[52] It is my judgment that the Court of Appeal had made a
correct finding in relying on the contents of the chemist report (P83), the
circumstantial evidence and the evidence in its entirety to come to the
conclusion that it was the appellant and no one else who was responsible for
what happened to the deceased on that night. For the reasons already stated I
would dismiss the appellant's appeal. The conviction recorded and the sentence
on the two charges passed by the High Court and affirmed by the Court of Appeal
are hereby affirmed.
[53] My learned brothers Arifin bin Zakaria CJ (Malaya), Nik
Hashim bin Nik Ab. Rahman, Augustine Paul and Hashim bin Dato' Hj. Yusoff,
FCJJ, have seen this judgment in draft and have expressed their concurrence.
