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IN THE COURT OF APPEAL OF MALAYSIA

(APPELLATE JURISDICTION)

[COURT OF APPEAL CRIMINAL APPEAL NO: S-05(M) 84-

02/2017]

(HIGH COURT IN SANDAKAN CRIMINAL APPEAL NO: SDK-

45B-5/10-2014)

BETWEEN

YASIR BIN ESAH … PERAYU

AND

PENDAKWA RAYA … RESPONDEN

IN THE HIGH COURT IN SABAH AND SARAWAK AT

SANDAKAN

Sandakan Criminal Trial No: S D K-45 B-5/10-2014

CORAM

IDRUS HARUN, JCA

ZALEHA YUSOF, JCA
RHODZARIAH BUJANG, JCA

JUDGMENT

[1] This is an appeal against the decision of the learned Judicial

Commissioner (JC) of the High Court at Sandakan who had on 27
January 2017 found the appellant guilty of a charge under section 302

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of the Penal Code and sentenced him to death by hanging by the neck
till death.

[2] The appellant (the accused) was charged with the murder of his
co-worker, one Bong Bong (the deceased). The charge reads as
follows:

“That you on 22 July 2013 at about 2.00pm at Block 07F,

Peringkat 3, Ladang Amalania, Jalan Jeroco, the district of
Kinabatangan, in the State of Sabah, did commit murder by
causing the death of one, BONG BONG (a female, race Bugis)
and that you have thereby committed an offence punishable
under Section 302 of the Penal Code.”

[3] In her report and evidence, the forensic pathologist, PW9

testified that the cause of death of the deceased was due to head
injury. From the injuries sustained by the deceased, she concluded
that the object used was blunt and heavy like the two bigger rocks
found at the place where the deceased’s body was found.

[4] The prosecution relied on circumstantial evidence as there was

no direct evidence or eye witness that the accused was the one who
inflicted the injuries that caused the death of the deceased. However
there was evidence that the accused was last seen with the deceased
on a motorcycle.

[5] The accused and the deceased were both workers of Ladang
Amalania Koko Bhd (Ladang Amalania) of which phase 3 of the
plantation had an area of about 890 hectares. Two days after the
deceased was found missing, PW1, the auxiliary police working as
security at Ladang Amalania, together with 200 workers proceeded to
search the plantation to look for the deceased but failed to find her.

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[6] The accused was taken to PW3’s office by PW1, upon receiving
information that the accused was last seen with the deceased on the
motorcycle. PW3 was the head of the Auxiliary Police Unit There. In
his evidence, PW3 said that the accused told him that he had killed
the deceased because earlier on the accused was allegedly beaten up
by three men purportedly upon the instruction of the deceased due to
the accused’s failure to pay RM50.00 which the accused owed the
deceased. The accused also informed PW3 that he could show the
place where he killed the deceased. All these evidence can be found in
the notes of the proceedings at pages 51 to 53 Volume 2 of the Record
of Appeal.

[7] Based on this admission of the accused, the police was called by
PW3. When the police team led by PW8, the investigation officer
(I.O) arrived at PW3’s office, the accused was arrested. Later the
accused led the I.O and the police team to the crime scene where the
deceased body was found.

[8] Based on those evidence, and upon its maximum evaluation the
learned JC was satisfied that the prosecution had established a prima
facie case. This can clearly be seen especially in paragraphs 20, 21,
22, 23 and 53 of the learned JC’s grounds of judgment as follows:

“20. I have read and considered the evidence of the

prosecution’s witnesses namely PW1, PW3 and PW8, it is my
view there was strong circumstantial evidence to connect the
accused to the death of the deceased. The accused was seen by
some of the workers to be with the deceased on a motorcycle
before it was reported the deceased went missing. The accused
was therefore the last person seen with the deceased. It was also
based on this information that the accused was traced by mandor
Jiman who had brought him to PW1. The accused had made
statements to PW3 and PW8 that he owed the deceased the sum

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of RM50.00 and that he was allegedly beaten up by 3 persons

for not settling his debt. The accused therefore had the motive to
kill the deceased. The evidence also showed that the accused had
confessed to PW3 on the killing of the deceased. The evidence
also showed that the accused had told PW8 that he could show
where he had left the body of the deceased. It was in pursuance
of this information given by the accused to PW8 that the body of
the deceased was found. The accused had brought the police to
the exact area where he had left the deceased and discovered the
body within 30 minutes also of reaching the place. Whereas 200
workers were unable to locate the deceased despite 4 hours of
search and a second search.

21. The defence did not challenge or submit on the credibility

of any of the prosecution witnesses which would raise or cast
any doubt on their evidence or on the truth or the veracity of
what they had said in court. As expected there are usually
discrepancies found in the testimony of a witness. However, it
would be wrong to say that just because a witness may have
contradictions in his evidence or even told a lie on one or two
points that his evidence should be totally rejected: Lee Ah Seng
& Anor v. Public Prosecutor [2007] 5 CLJ 1.

22. Based on the evidence before the court, I am satisfied that

the combined strength of each strand of evidence when twisted
together to make a rope was sufficient and strong enough to
sustain the finding that the accused had inflicted the injuries on
the deceased which caused her death. The cumulative evidence
irresistibly pointed to the one and only conclusion that it was
the accused who had caused the injuries to the deceased
resulting in her death: Chan Chwen Kong v. Public Prosecutor
[1962] 1 LNS 22, Idris v. Public Prosecutor [1960] 1 LNS 40,
Kow Liang Tiang v. Public Prosecutor [2011] 9 CLJ 172.

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23. But the prosecution had also relied on the confession made
by the accused to PW3 at the latter’s office at Ladang Timora.
There was also the subsequent conduct of the accused in
showing to the police the place where the deceased was found.
The prosecution also submitted the accused had given
information to PW8 where he had brought and left the deceased.
The prosecution had referred to s. 17, s. 8 and s. 27 of the
Evidence Act (EA).

………………………………………………………………………

………………………………………………………………………

………………………………………………………………………

53. Based on circumstantial evidence, the accused’s

confession that he had killed the deceased, the accused’s
information that he could show to the police where he had left
the deceased and the accused subsequent conduct in showing
where the accused had left the deceased and having subjected
the same on a maximum evaluation it is my view the prosecution
had made out a prima facie case against the accused on the
charge of murder, I therefore called upon the accused to enter on
his defence”.

[9] Accordingly the learned JC called for the defence of the

accused. The accused however elected to give an unsworn statement
from the dock. The unsworn statement was reproduced in paragraph
58 of his grounds of judgment as follows:

“58. The unsworn statement of the accused read as follows:

1. Saya bekerja sebagai tukang tambak sawit di

Peringkat 1 Ladang Alamania, Kinabatangan sejak
tahun 2009/2010. Saya bekerja sebagai tukang

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tambak sawit dan tidak mempunyai gaji tetap, lebih

kurang RM500-RM600 sebulan.

2. Saya kenal dengan mangsa yakni Mak Cik Bong

Bong sebab Mak Cik Bong Bong juga tinggal di
Ladang Alamania. Saya selalu ambil barang-barang
dari Mak Cik Bong Bong seperti mi maggi, biskut,
rokok dan saya akan bayar kemudian. Bukan saya
seorang saja yang mengambil barang dari Mak Cik
Bong Bong.

3. Perkara yang saya boleh ingat tarikh 21.7.2013 ialah

saya habis kerja di Peringkat 1 lebih kurang 2 petang.
Saya tunggu lori yang saya biasa naik untuk balik ke
rumah saya di Peringkat 3.

4. Waktu itu, Mak Cik Bong Bong ada di Peringkat 1,

dan bila nampak saya, dia marah-marah saya dan
tagih dari saya hutang saya RM50.00.

5. Saya tunggu lori tidak sampai-sampai. Saya pinjam

motor kawan saya nama Binar. Mak Cik Bong Bong
waktu itu ada di sana dan dia juga mahu tumpang
balik ke Peringkat 1.

6. Sewaktu perjalanan, saya panas hati dan rasa marah

sebab Mak Cik Bong Bong masih lagi marah-marah
saya waktu dia membonceng motor yang saya bawa.
Saya teringat peristiwa Mak Cik Bong Bong marah
saya pada pagi itu dan menagih hutang dia dari saya.
Dia juga ada cakap yang saya ni ‘binatang’ dan
‘suluk’.

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7. Selepas itu, saya masuk satu simpang dan masuk ke

dalam ladang kelapa sawit. Saya berhenti di tepi
sungai. Saya tolak Mak Cik Bong Bong ke tanah.
Saya tidak ingat sama ada saya ada tendang Mak Cik
Bong Bong atau tidak.

8. Dalam kemarahan, saya ingat saya tolak dia dan

mungkin saya ada pukul dia guna tangan. Lepas itu
saya tinggalkan dia di sana dan waktu itu saya masih
dengar suara dia seperti berbisik-bisik.

9. Lepas itu, saya ambil kawan saya Binar di Peringkat

1. Saya pergi ke kedai bersama Binar untuk membeli
tiub motor. Saya hantar Binar pulang dan saya pun
pulang juga ke rumah saya dengan menaiki motor
yang saya pinjam dari Binar.

10. Seingat saya, sudah berlalu satu atau dua hari baru
orang Peringkat 1 kecoh sebab mencari Mak Cik
Bong Bong yang dikatakan hilang.

11. Saya beritahu ayah saya yang saya ada membawa

Mak Cik Bong Bong ke Peringkat 3. Ayah saya
memanggil Mandur Jiman dan Mandur Jiman
menyuruh saya untuk menyerah diri.

12. Selepas itu saya di bawa ke Pejabat Ladang

Alamania. Kemudian sepasukan polis datang ke
pejabat. Saya menceritakan apa yang terjadi kepada
seorang anggota ASP Amir dan saya yang membawa
ASP Amir dan orang-orang beliau ke tempat di mana
saya bawa Mak Cik Bong Bong.

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13. Ketika sampai ke tempat itu, saya lihat kedudukan

Mak Cik Bong Bong sudah berubah.

14. Seingat saya, saya hanya memberitahu perkara

mengenai saya membawa Mak Cik Bong Bong ke
Peringkat 3 kepada 3 orang sahaja iaitu ayah saya,
Mandur Jiman dan ASP Amir.

15. Saya tidak membuat sebarang tindakan yang boleh

menyebabkan kematian Mak Cik Bong Bong. Seingat
saya, saya hanya menolak dia dan mungkin ada
memukul dia menggunakan tangan saya. Dan ketika
saya tinggalkan dia di tempat itu, saya masih boleh
mendengar suara Mak Cik Bong Bong seperti
berbisik-bisik.

16. Saya memohon agar Mahkamah menerima kenyataan

ini dari saya.

Terima kasih.”

[10] The learned JC marked the unsworn statement as exhibit ‘Dl’.

After quoting some authorities on the law relating to the weight to be
attached to the unsworn statement from the dock, the learned JC
reminded himself that “even if I do not believe the statement of the
accused, I should acquit him if his statement raise a doubt on the case
of the prosecution”. Having read Dl, and there was no other witness
called by the defence, the learned JC found that some of the statement
had in fact corroborated the prosecution’s evidence. The following
was the learned JC’s findings:

“70. Having read D1, I find that some of his statement had in
fact corroborated the prosecution’s evidence. The accused’s
statement in paragraph 2 of D1 corroborated the evidence of

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PW8 where the accused said he purchased goods from the

deceased on credit basis. Paragraph 4 D1 also corroborated
PW8’s evidence on the accused owing the deceased RM50 and
the accused was angry with the deceased when asked to pay.

71. Paragraph 5 D1 corroborated PW3 and PW8 evidence in

court that the workers saw the accused together with the
deceased on a motorcycle.

72. Paragraphs 7 and 8 of D1 also corroborated the evidence of

PW3 and PW8 that he had brought the deceased to a place and
after beating her had left her there.

73. Paragraph 11 of D1 also corroborated the evidence of PW1

who was directed by PW3 to inform mandor Jiman to look for
the accused. It was mandor Jiman who subsequently brought the
accused to PW1 and later to PW3.

74. Paragraph 12 of D1 corroborated the evidence of PW8 that

the accused had agreed to bring the police to place where he had
brought the deceased”.

[11] We must note here that “Mandor Jiman” was the appellant’s
immediate superior.

[12] At the end, the learned JC found the appellant had failed to
create any reasonable doubt on the prosecution’s case. Hence, the
appellant was accordingly convicted for murder.

GROUNDS OF APPEAL

[13] Before us, the accused, in his counsel’s written submission, had
relied on the following four grounds for his appeal:

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“(a) the trial judge erred in law and in fact when his Lordship
failed to apply correctly the test for circumstantial
evidence;

(b) the trial judge erred in law and in fact in disregarding the
evidence that there was one unknown person other than the
appellant that was last seen and/or with the deceased,
which evidence was open to reasonable doubt;

(c) the trial judge erred in law and in fact in finding that the
statement made by the appellant to PW3 amounted to a
confession - the trial judge has misdirected himself that
the appellant had made a confession voluntarily when in
fact there was no evidence by the Prosecution that the
appellant had done so to PW3; and

(d) the trial judge erred in law and in fact when his Lordship
failed to apply correctly the ingredients to be fulfilled by
the prosecution for the charge under Section 302 of the
Penal Code as set out under Section 300 of the Penal
Code.”

[14] On the first two grounds, it was submitted by learned counsel

for the accused that there were still gaps in the evidence to prove
beyond reasonable doubt that the accused had indeed committed the
offence charged. There had been no direct evidence such as DNA
evidence, finger prints and weapons that could link the accused to the
death of the deceased. Even though rocks were found at the scene,
there was nothing to connect them to the accused. Furthermore, the
strands of hair found in the deceased’s palm created doubt as to
whether it was the accused who was last seen with the deceased.

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[15] Learned counsel for the accused cited the case of Public
Prosecutor v. Azilah Hadri & Anor [2015] 1 CLJ 579 wherein it was
held by the Federal Court that:-

“[116] The prosecution’s case rests substantially or entirely on

circumstantial evidence. It is trite that direct evidence of the
commission of the offence is not the only source from which a
trial court can draw its conclusion prior to a finding of guilt.
Conviction can be secured based on circumstantial evidence
provided that:

(a) the circumstances from which the conclusion of guilt

is to be drawn has been established;

(b) the facts so established is consistent with the

hypothesis of the guilt; and

(c) circumstances should be of a conclusive nature in

that the chain of evidence is complete so as to
exclude any conclusion consistent with the accused
person’s innocence (See Magendran Mohan v. PP
[2011] 1 CLJ 805; [2011] 6 MLJ 1, Mazlan Othman
v. PP [2013] 1 CLJ 750; [2013] 1 AMR 615; Dato’
Mokhtar Hashim & Anor v. PP [1983] 2 CLJ 10;
[1983] CLJ (Rep) 101; Chan Chwen Kong v. Public
Prosecutor [1962] 1 LNS 22).”

[16] Applying the abovesaid test and bearing in mind other evidence
inter alia, that the deceased also gave out loans to others in Ladang
Amalania as well as the fact that the deceased’s body was found in an
open area, it was learned counsel for the accused’s further submission
that the possibility of a third person from the plantation estate
involved in or linked to the death of the deceased had not been

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eliminated and it is therefore unsafe to convict the appellant based on

the circumstantial evidence test.

[17] On the 3 rd ground of appeal, it was submitted by learned counsel

for the accused that there was no confession at all by the accused as
what was said was not known and not recorded. He further submitted
there was no probative value in the testimony of PW3 bearing in mind
that PW3 had admitted that before he spoke to the appellant, PW3 had
already received hearsay information from PW1 who said that Jiman
told PW1 that the appellant told Jiman he had killed the deceased.
Therefore the situation here was a double hearsay situation rather than
a so-called confession.

[18] Learned counsel for the accused further submitted that even
assuming there was a genuine confession, the learned JC erred as he
had disregarded the fact that Section 17 of the Evidence Act (EA) is
subject to Section 25 which states that no confession made to a police
officer who is below the rank of Inspector shall be proved against the
appellant. Also there was no caution administered by PW3 before the
so- called confession was made which is against Section 113 (1) of
the Criminal Procedure Code 1999 (CPC). He cited this Court’s
decision in Liang Weng Heng v. PP [2014] 5 CLJ 401 and a High
Court case of P.P v. Lee Kim Seng [2015] 1 CLJ 393 to support his
argument.

[19] On the last ground of appeal, it was the accused’s contention

that since there was no direct evidence to show that the accused was
involved, let alone caused the injuries suffered by the deceased, it
therefore cannot be inferred that the ingredients set out in Section 300
of the Penal Code had been established by the prosecution. Just
because the accused was beaten up for owing RM50, hence he would
have motive to kill the deceased, in the appellant’s learned counsel
submission, was too farfetched.

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OUR DECISION

[20] In Azilah’s case, supra, after citing some authorities on

circumstantial evidence, Suriyadi FCJ who wrote for the Federal
Court had at page 615, stated as follows:

“[119] The above case have clearly laid down certain guidelines,
whereupon in the absence of direct evidence, the prosecution
may resort to adducing circumstantial evidence to discharge its
burden. Crimes are usually committed in secret and under
condition where concealment is highly probable. If direct
evidence is insisted under all circumstances, a successful
prosecution of vicious criminals, who have committed heinous
crimes in secret or secluded places, would be near impossible. In
this case not only was the heinous crime committed at a
secluded place but the deceased’s body was blasted beyond
recognition. Only fragments of bones were found.”

[21] It is not disputed that in the instant case, the prosecution relied
heavily on the circumstantial evidence namely:

(i) the accused was the last person seen with the deceased

(ii) It was the accused who led to the discovery of the

deceased body;

(iii) the accused had before his arrest, confessed to PW3 that he
had killed the deceased.

[22] The Federal Court in Sunny Ang v. Public Prosecutor [1966] 2

MLJ 195 had held that one of the points about circumstantial evidence
is its cumulative effect. It is the total effect of them, not merely each
one in itself, but altogether. Learned counsel for the accused in this
instant appeal was harping on the fact that there was no finger prints
and weapons that could link the accused to the death of the deceased

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and that no DNA evidence when there were strands of hair found in
the deceased’s palm. But our view was those were the very reasons
why this case had to rely on circumstantial evidence. The absence of
the accused’s finger prints and the absence of weapon alone do not
make him free of guilt if other evidence points otherwise.

[23] First, there was evidence that the accused was the last person
seen with the deceased. In his unsworn written statement he even
admitted that while taking the deceased as pillion rider on his
motorcycle, he was feeling very angry towards the deceased as the
deceased kept on scolding him for not paying the money he owed her.

[24] There was also evidence that earlier searches done by 100 - 200
workers, to find the deceased was to no avail; but the accused could
straight away show where the deceased body was. This was confirmed
by PW8 the I.O, in his evidence and we found there was no reason for
the 1.0 to tell lies or to implicate the accused. We therefore agree with
the learned JC when he found as follows:

“The defence had not challenged this piece of evidence during

cross examination. The contention that PW3 already knew of the
location where the body of the deceased is without basis because
it was from the information of the accused that the police was
able to reach the location where the accused had left the
deceased and further the police had discovered the body within
30 minutes due to the direction of the accused (QA288 p82
NOP). Unlike the 2 searches done earlier where PW1 and the
estate’s workers had failed to find the deceased despite 4 hours
of search and a second search. It was the accused who had
pointed to the police at the exact place where he had left the
deceased which was discovered, as such the same is admissible
as conduct, as provided for under s. 8 of the EA”.

[25] Section 8 of the EA inter alia reads as follows:

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“8(1)...

(2) The conduct of any party, or of any agent to any party, to

any suit or proceeding in reference to that suit or proceeding, or
in reference to any fact in issue therein or relevant thereto, and
the conduct of any person an offence against whom is the
subject of any proceeding, is relevant if the conduct influences
or is influenced by any fact in issue or relevant fact, and
whether it was previous or subsequent thereto.

Explanation 1 - The word “conduct” in this section does not

include statements unless those statements accompany and
explain acts other than statements; but this explanation is not to
affect the relevancy of statements under any other section of this
Act.

Explanation 2 - When the conduct of any person is relevant any

statement made to him or in his presence and hearing which
affects his conduct is relevant.”

[26] The Federal Court in Pathmanabhan Nalliannen v. P.P & Other

Appeals [2017] 4 CLJ 137, when discussing the issue of conduct
under section 8 of the EA had held as follows:

“[128] That conduct of pointing to the places where the items

were discovered by the second and fourth accused persons,
which was subsequent to an offence, falls squarely within the
ambit of “the conduct of any person an offence against whom is
the subject of any proceeding”

[129] As held by the Court of Appeal, we hold that the conduct

of pointing to the places where the items were found is relevant
and admissible (Prakash Chand v. State AIR [1979] SC 400).
Chinnappa Reddy J said at p. 404:

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The evidence of the circumstances, simpliciter, that an

accused person led a Police Officer and pointed out the
place where stolen articles or weapons which might have
been used in the commission of the offence were found
hidden, would be admissible as conduct, under section 8 of
the Evidence Act, irrespective of whether any statement by
the accused contemporaneously with or antecedent to such
conduct falls within the purview of section 27 of the
Evidence Act

[130] The conduct of the second and fourth accused persons is

consistent with them knowing of the places where the items
connected to the crime of murder were disposed of. This view is
consistent with the view held by the learned trial judge where he
said:

The only inference that I could make on the conduct of the

second and fourth accused in providing the information in
this case was that they were in possession of the items
found and had tried to destroy and conceal these items by
scattering and leaving them at various places.

[131] We are also satisfied that the act of pointing by the second
and fourth accused persons at the spots where items connected
to the murder were found is admissible as conduct, as provided
for under s. 8 of the EA.”

[27] Applying the above to our instant appeal, we were of the view
that the conduct of the accused, in leading the police to where the
deceased body was found was consistent with him knowing the place
where the murder was committed. Like in Pathmanabhan’s case,
supra, this is admissible as conduct under s. 8 of the EA.

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[28] Not only that, we opined, this evidence was also admissible
under section 27 of the EA. Section 27 of the EA read as follows:

“How much information received from accused may be proved.

(1) When any fact is deposed to as discovered in consequence

of information received from a person accused of any
offence in the custody of a police officer, so much
information, whether the information amounts to a
confession or not, as relates distinctly to the fact thereby
discovered may be proved”

[29] It cannot be denied that at that time, the accused was already
accused of committing the murder of the deceased and he was already
in the custody of PW8 (arrested) and the body of the deceased was
discovered in consequence of the information given by the accused.
Hence the ingredients of section 27 of the EA were satisfied.

[30] Even before he was arrested by PW8, the accused had told PW3
that he had killed the deceased. Learned counsel for the accused took
issue on this as PW3 was not a police officer above the rank of
Inspector and it was not recorded. However, the prosecution relied on
section 17 of the EA. Section 17 of the EA provides as follows:

“17(1) An admission is a statement, oral or documentary, which

suggests any inference as to any fact in issue or relevant fact,
and which is made by any of the persons and under the
circumstances hereinafter mentioned.

(2) A confession is an admission made at any time by a person

accused of an offence, stating or suggesting the inference that he
committed that offence.

(3) Subsection (2) shall have no application in Sarawak.”

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[31] Learned counsel for the accused submitted that the learned trial
judge had disregarded the fact that section 17 of the EA is subject to
section 25, which states that no confession made to a police officer
who is below the rank of Inspector by the accused shall be proved
against him. With due respect, we cannot agree with this argument. In
Ho Sek Kong v. Public Prosecutor [2011] 5 MLJ 359, the appellant
had disclosed to his sister’s boyfriend, PW4, that he had committed
the murder of the deceased. During that time, apart from the appellant
and PW4, there was nobody else in the house. The trial judge had
accepted the appellant’s statement to PW4 as a confession under
section 17 (2) of the EA. The appellant was found guilty by the trial
judge and on appeal, this Court had held that the trial judge was
entitled to arrive at this finding that PW4 was a credible witness and
that the appellant’s statement to PW4 that he had committed the
murder was a very important piece of evidence and was pivotal in the
determination of the guilt or innocence of the appellant. This Court
further held that the trial judge was right in admitting this statement
as a confession made voluntarily by the appellant and that the accused
may be convicted solely on the strength of his confession.

[32] Ho Sek Kong’s case, supra, clearly shows that confession under
section 17 of the EA need not be made to a police officer of the rank
of Inspector and above. It can be made to anybody, as long as it is
done voluntarily. In our instant appeal, there was no evidence that the
accused had been forced or induced to make such a confession. He
was not even arrested at that point of time. We found no reason to
disagree with the learned JC’s finding on this. Confession need not be
in written form only. It can be done orally and it can also be by
conduct. See: Adenan bin Haron v. Public Prosecutor [2015] 2 MLJ
281. The instant appeal can also be distinguished from the case of P.P
v. Lee Kim Seng [2013] 1 CLJ 393 referred to by learned counsel in
his written submission because in Lee Kim Seng, supra, the so called

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confession was made to police officers after the accused was arrested,
which was not the case here.

[33] The pathologist, PW9, had identified 18 injuries which were

severe mostly on the head of the deceased. According to her, based on
the multiple lacerations on the head and the face, with underline skull
fractures and facial bone fracture, which were most likely fatal in
nature, the cause of death was due to head injuries. She even said that
due to the severity, even with immediate first aid treatment would
highly unlikely to save the deceased. This can be seen from the
following Question and Answer during cross examination by the
accused’s learned counsel:

“Q429 When the DPP asked you whether the injuries found on
the body is sufficient in the ordinary cause of nature caused the
death of the victim, your answer is most likely. So most likely
these injuries are sufficient to cause death. Would immediate
first aid or emergency treatment be able to save the victim from
a death?

A Highly unlikely. The reason why the head injuries sustained

by the deceased most likely fatal in nature because of the
severity of the skull fracture. The location of the skull fracture
is at the place where the control centre for the heart and
respiration. It is very severe.”

[34] Based on the severity of injuries we were satisfied that the

element of intention was there to be inferred. The motive to kill her
was there. The accused owed the deceased RM50 and he was angry,
he admitted it, as she asked for payment and called him derogating
names. He even admitted of hitting the deceased and left her after
taking the deceased to a secluded area near to a river within the
plantation where the deceased body was found two days later.

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[35] On the strands of hair, E18a, the Chemist Report merely stated
that no DNA profile was developed from it. It never suggested that the
hair belonged to an unknown person. Even PW9 who listed the
specimens which she collected which included the hair, was not cross-
examined on this. We also agreed with the learned JC that the absence
of finger prints could also be due to the fact that since the body had
been left there for two days, rain or moisture could have washed any
such trace.

[36] As alluded earlier, the accused had opted to give unsworn

statement in his defence, which is clearly not subject to examination
and had not called any other witness. Of course this is his substantive
right to make such an option. But he did this at his own peril and what
he said did not entitled him to the same weight as sworn testimony.
(See: Federal Court in Siew Yo Ke Meng v. P.P, RJ 05-135-2011). It is
trite that a trial judge will not give much weight to what an accused
has said in his unsworn statement as he is not subject to cross
examination by the prosecution nor can he be questioned by the trial
judge. See: Dato’ Seri Anwar Ibrahim v. P.P & Another Appeal
[2015] 2 CLJ 145.

[37] We found the learned JC had applied the correct principle in

assessing the accused’s unsworn statement. The following was the
exact words used by His Lordship in his grounds of judgment:

“Bearing in mind that the unsworn statement of an accused

cannot be equated with sworn testimony but must be given such
weight as the court thinks fit, I shall consider whether the
statement of the accused in the instant case raises a reasonable
doubt on the case for the prosecution. I remind myself that even
if I do not believe the statement of the accused, I should acquit
him if the statement raises a doubt on the case of the
prosecution.”

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The learned JC had analysed the unsworn statement of the accused as

stated in paragraph 10 above, before making his decision.

CONCLUSION

[38] We have carefully linked all the evidence on record and we

cannot but agree with the learned JC that the cumulative strength of
the circumstantial evidence points to the accused as the person who
had killed the deceased. To quote Suriyadi FCJ in Azilah’s case,
again, if direct evidence is insisted under all circumstances, a
successful prosecution of vicious criminals, who have committed
heinous crimes in secret or secluded places, would be near impossible.
After all in Sunny Ang’s case, the accused was found guilty even
though the deceased body was never found.

[39] We therefore found no merit in this appeal. The appeal was

therefore dismissed. The High Court decision was affirmed.

Dated: 17 JANUARY 2019

(ZALEHA YUSOF)
Judge
Court of Appeal
Malaysia

COUNSEL:

For the appellant - Ken Yong; M/s Ken Yong & Co

Block B3, Lot 3, 1 st Floor,
Bandar Labuk Jaya, Mile 7
90000 Sandakan
SABAH.

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For the respondent - DPP Ahmad Sazilee Abdul Khairi; Jabatan

Peguam Negara
No. 45, Persiaran Perdana,
Precinct 4,
62100 PUTRAJAYA.

Case(s) referred to:

Public Prosecutor v. Azilah Hadri & Anor [2015] 1 CLJ 579

Liang Weng Heng v. PP [2014] 5 CLJ 401

P.P v. Lee Kim Seng [2013] 1 CLJ 393

Sunny Ang v. Public Prosecutor [1966] 2 MLJ 195

Pathmanabhan Nalliannen v. P.P & Other Appeals [2017] 4 CLJ 137

Ho Sek Kong v. Public Prosecutor [2011] 5 MLJ 359

Adenan bin Haron v. Public Prosecutor [2015] 2 MLJ 281

P.P v. Lee Kim Seng [2013] 1 CLJ 393

Siew Yo Ke Meng v. P.P, RJ 05-135-2011)

Dato’ Seri Anwar Ibrahim v. P.P & Another Appeal [2015] 2 CLJ 145

Legislation referred to:

Penal Code, ss. 300, 302

Evidence Act 1950, ss. 8, 17(2), 25, 27

Criminal Procedure Code 1999, s. 113(1)

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