Kanasan A/L Kandasamy V Public Prosecutor


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CRIMINAL APPEAL NO. N-05-263-09/2014


























[1] In the court below, the appellant was convicted and sentenced to suffer the death penalty on account of the following charge:


“Bahawa kamu pada 4.1.2013, di antara jam lebih kurang 1.30 petang hingga jam lebih kurang 8.30 malam, di rumah No. 89, Jalan 5, Taman Desa Pelangi, Mantin, di dalam Daerah Nilai, di dalam Negeri Sembilan, dengan niat telah melakukan bunuh dengan menyebabkan kematian Sinthuja a/p Suresh, No. K/P: 941209-56-5724 dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302, Kanun Keseksaan”.


[2] The appeal before us was in respect of the said conviction and sentence.


[3] We dismissed the appeal and we now give our grounds.


The Case For The Prosecution


[4] The deceased (Sinthuja a/p Suresh) was the appellant’s niece. She was the daughter of the appellant’s sister, PW-15 (Kalaivani a/p Kandasamy).




[5] At the material time PW-15 was residing at No. 23, Kampong Belegu Halt, Jalan Industri, Temerloh, Pahang together with her other daughter, PW-13 (Daviga Rani a/p Suresh). Meanwhile, the deceased was studying at Kolej TAFE, Seremban and lived at the hostel provided by the college. On every weekend, beginning Friday, the deceased would fetch her from the said college to spend the weekend at his house and would send her back to her hostel on Sunday evening.


[6] PW-4 (Velmurugan a/l Kanasan) is the appellant’s son. He stayed together with the appellant at house No. 89, Taman Desa Pelangi, Mantin, Negeri Sembilan, the scene where the appellant was alleged to have murdered the deceased as indicated in the charge (crime scene). Only the two of them had apparently lived in the said house at the material time.


[7] PW-9 is the appellant’s nephew and the deceased was his cousin, being the daughter of his mother’s younger sister. He is a married man and resided at Bandar Spring Hill, Port Dickson.




[8] PW-18 (Muniamah a/p Arumugam) was the appellant’s immediate


neighbour, residing at house number 88. The appellant’s house is on her right, number 89. House number 87 on her left, was occupied by a Chinese family.


[9] PW-16 (Pavitra a/p Subramaniam) was the deceased’s college


mate and a close friend at Kolej TAFE.


[10] PW-17 (Sulaiman bin Tiban) was a security guard at the material time whose principal duty was to secure the main entrance at Kolej TAFE.


[11] On 4.1.2013, PW-1 (Lans Koperal Nizar Azizi Alwi) was on duty at the Inquiry Office, Balai Polis Mantin. At about 9.30 p.m., PW-4 lodged a report of the deceased’s demise in a room at the house where he lived with the appellant intimated at para. 7, above (crime scene). His police report is exhibit P-5, evinced at p.126, Jilid 1, Rekod Rayuan (RR). Soon after, the police team arrived at the scene in full force to commence investigation, headed by the investigating officer, PW-22 (ASP Suzlimie Affendy) and assisted by PW-21 (Insp. Tan Cheng Kiat) from Bahagian




Cawangan Forensik, JSJ, IPK, Negeri Sembilan. He was the crime scene investigator (pegawai siasatan tempat kejadian).


[12] The investigation revealed that there were 3 rooms in the said single storey terraced house. The deceased was found in the main room (bilik pertama) dead with multiple wounds on her face and head, the most profound of which was the slash wound on her neck. This wound was the causative factor precipitating the deceased’s death as found by the pathologist, PW-3 (Dr. Sharifah Safoorah binti Syed Alwi), from Hospital Tuanku Jaafar, Seremban, who had conducted a post-mortem upon the person of the deceased at about 9.30 a.m. on 5.1.2013.


[13] The investigation also revealed that on the day of the incident (4.1.2013), the appellant had gone to Kolej TAFE at about 11.35 p.m. and had fetched the deceased to take her to his house to spend the weekend as was his usual weekly routine. The fact that the appellant had taken the deceased from Kolej TAFE was seen and confirmed by PW-16 and PW-17.




[14] At about 3.38 p.m. on the same day (4.1.2013), PW-13 who was then with her mother (PW-15) at their residence in Temerloh, received a telephone call from the appellant who had asked her in an angry tone about the deceased’s photograph appearing on facebook. PW-13 also spoke with the deceased when the appellant called upon the deceased and passed his handphone to the deceased. Apparently the deceased was with the appellant when the said phone conversation took place.


[15] At about 5.30 p.m. on the same day (4.1.2013) PW-18, the appellant’s neighbour, came back from work. She had picked up some flowers elsewhere and was tinkering and tying the flowers outside her house when she heard a woman screaming. She was not sure though whether the scream came from the appellant’s house or from her neighbour’s house on the left of her house. She heard the scream only once and proceeded to do nothing but her own thing.


[16] At about 6.00 p.m., PW-18 who was still outside her house saw the appellant exiting his house. He was alone. She asked the appellant about the scream and was told someone had cried, suffering from stomach ache (sakit perut). PW-18 did not enquire who that ‘someone’ was and neither




did the appellant reveal who the person was. PW-18 then went inside her house and the appellant left for somewhere on his motorcycle.


[17] PW-4 worked at Kilang LB Aluminium, Beranang. His working hours was from 8.00 a.m. to 8.00 p.m. There were only two sets of keys for the gate, grille door and main door of the house. One set was kept by him and the other by the appellant.


[18] On 4.1.2013, PW-4 left for work on a motorcycle at about 7.30 a.m. after switching off the fans, lights and locking the grille door, the main door and the gate. The day’s job was done at 8.00 p.m. He arrived home at about 8.30 p.m. He noticed the gate closed but unlocked and the ceiling fan in the main room (bilik pertama) and the lights were switched on. He thought the deceased was in the house. He knew it was the appellant’s routine to fetch the deceased every Fridays for the deceased to spend her weekends at the appellant’s house. He called out the deceased several times but there was no response. He proceeded to enter the house and found the grille door and main door unlocked.




[19] Next, upon entering the house, PW-4 saw a leg protruding on the floor near the door to the main room. He went further and saw the deceased soaked/covered in blood already dead with her eyes wide opened.


[20] Traumatised by what he saw, PW-4 hurriedly left the house and phoned the appellant who then said that he would come home immediately. He did not touch anything. PW-4 next proceeded to Balai Polis Mantin to lodge the aforesaid report.


[21] PW-21’s team recovered a chopper knife (exhibit P6A) smeared with blood stains on a mattress in the said room close to where the deceased’s body was found. There were traces of finger prints embossed on the dried blood smeared on the blade of the said knife.


[22] PW-12 (Purwira Jaya bin Othman), the Penolong Pendaftar Penjenayah, Pusat Pendaftaran Penjenayah Malaysia dan Singapura, found that there were traces of 4 finger prints on the dried blood smeared on the blade of the said knife but only one was sufficient for purposes of analysis. PW-12 further found that the finger print that was lifted matched




with the finger print of the third finger of the appellant’s right hand that was supplied to him for comparison purposes on 9.1.2013 by the investigating officer (I.O), PW-22.


[23] Additionally, PW-21 ’s team also recovered a pair of slacks carrying the ‘Haggar’ brand name (exhibit P18A) at the crime scene. An analysis of the same by the chemist, PW-14 (Mohd. Izuan bin Othman), confirmed the presence of a mixed DNA profile of both the appellant and the deceased.


[24] The appellant was arrested by PW-2 (Insp. Mohd Supian bin Baharudin) at about 11.30 p.m. on 4.1.2013 under the porch outside his own house.


[25] At the end of the prosecution’s case, the learned trial judge found that the circumstantial evidence relied upon by the prosecution irresistibly fastened the appellant with the commission of the crime. She found that the prosecution had, on a maximum evaluation of the evidence laid before her, established a prima facie case against the appellant on the charge as proffered to viz. the commission of the murder of the deceased under limb




(c) of s.300 of the Penal Code (PC). The appellant was thereupon ordered to enter his defence.


The Defence Case


[26] The appellant gave evidence on oath.


[27] The appellant initially testified that he had gone to fetch the deceased at TAFE College at 11.45 a.m. on 4.1.2013, after which both of them went straight to his house in Mantin.


[28] The appellant subsequently altered his evidence and said that after fetching the deceased, he had sent the deceased to Terminal One Bus Station, Seremban, upon the deceased’s request because she wished to meet up with some friends. He also gave RM20.00 to the deceased.


[29] The appellant testified that he had reached his house at 3.00 p.m. He was alone in the house. His son (PW-4) and daughter were at their respective work place. He had cooked brinjal curry for him and his son and tamarind rice for prayer purposes.




[30] Before he went out for work as a security guard with a company known as Inchico in Nilai at 6.10 p.m., he had received a phone call from the deceased requesting him to pick her up at the bus stop at Mantin. The appellant proceeded to fetch the deceased on a motorcycle and met the deceased at about 5.30 p.m.


[31] At Mantin Bus Stop, the appellant said he saw the deceased crying. Upon his query, the deceased told him that she was suffering from stomach ache. He arrived home together with the deceased at about 5.40 p.m.


[32] The appellant testified that he had given the deceased some fenugreek water to ease her stomach pain. He left for work about 15 minutes later and had informed the deceased to lock the door. However, the appellant later said that the deceased was fast asleep when he left for work.


[33] The appellant said that he met PW-18 outside his house. He told PW-18 that it was him who had screamed when PW-18 asked the




appellant who had screamed. He told PW-18 that he had appendicitis and had taken some medication.


[34] The appellant continued that he arrived at his work place about 20 minutes later and started work at 7.00 p.m. At about 10.00 p.m., he received a phone call from PW-4 requesting him to come home. He sought the permission of his superior to go home.


[35] He arrived at his house at about 10.30 p.m. He saw many policemen around his house. He sought permission to see the deceased and was allowed to do so through the front door. He was not allowed though to enter the house to prevent contamination of the crime scene or compromise the evidence.


[36] The appellant denied that he had made a phone call to PW-13 at 3.30 p.m. on 4.1.2013. He denied knowing anything about any facebook. His relationship with PW-15, the deceased’s mother, was fine and cordial. The deceased had a boyfriend and his boyfriend had come over to his house.




[37] The appellant denied having anything to do with the death of the deceased.


[38] The learned trial judge found that the appellant had failed to raise a reasonable doubt upon the prosecution’s case and proceeded to find that the appellant had committed the murder of the deceased under s.300 (c) of the PC. The appellant was convicted on the charge proffered against him as the prosecution has proven its case beyond a reasonable doubt.


The Appeal Before Us


[39] The appellant posited 2 grounds:


i. No one saw the murder.


ii. The time of death was never established.


[40] Learned counsel submitted that no one witnessed the murder of the deceased and the I.O had agreed with the suggestion that at the time of her death, there was no one inside the house. Hence, as the time of death was never established, there is a possibility of third parties committing the murder. In addition, PW-18 was not sure whether the scream came from




the appellant’s house or from the Chinese neighbour’s house to the left of her house. PW-18 also did not know the person who had screamed.


[41] Learned counsel further submitted that PW-4 used to see the chopper knife (exhibit P6A) in the kitchen. The appellant must have a full grip of the knife to commit the offence. However, no finger prints of the appellant was detected on the holder of the knife. There were traces of 4 finger prints on the blood smeared blade of the knife but only the right third


finger print of the appellant was identified. The appellant could not have used only his third finger to commit the offence.


[42] Learned counsel also submitted that the I.O had agreed that the appellant’s clothings seized by PW-21 from the said house (shown in photographs 46 to 52, exhibit P17) were devoid of blood stains, were all dry and bore no sign of being washed prior to its seizure. The chemist report (exhibit P33) in relation to the said clothings also did not implicate the appellant with the commission of the offence in any way, while the slack (exhibit P18A) confirming the presence of a mixed DNA profile of the appellant and the deceased was collected from a basket shown in photograph 46 of exhibit P17.




[43] The post mortem was done at 9.30 a.m. on 5.1.2013. The pathologist’s (PW-3) evidence stated that the time of death would have been between 8 hours to 36 hours. Learned counsel submitted that it was nearly 15 hours from the time PW-18 heard the scream if PW-18’s evidence were to be accepted. She does not, however, have any idea of where or from where or from which house the scream came from. She never saw the deceased and only saw the appellant coming out of the house. The Chinese neighbour did not testify and the deceased’s alleged boyfriend and the facebook which appeared to be the root of the problem were never investigated.


[44] In a nutshell, learned counsel submitted there was no evidence, either circumstantial or direct, to say that the appellant committed the crime.


Our Decision


[45] In our view, there is no real substance in these two grounds of appeal. Given that the offence was committed away from public view within the secrecy of the four walls of one’s empty own home, it would be near impossible to mount a successful prosecution against the perpetrator




of the crime if direct evidence is insisted upon. It is trite that direct evidence of the commission of the offence is not the only mode available at the disposal of the prosecution to prove the ingredients of the offence. The ends of the law would be defeated if direct evidence is insisted under all circumstances. Hence, it has always been a canon of our criminal law that a conviction can be secured based solely on circumstantial evidence of which it bears no distinction with direct evidence.


[46] The principle and applicability of circumstantial evidence had been decided by high authority in a plethora of cases. Suffice for us to refer to just a few of them.


[47] As to the purport of circumstantial evidence, the Court stated in PP v Letchumanan Krishnan [2007] 5 MLRH 611:


“[22] It is axiomatic under our case-law, and we cite the principle repeatedly, that circumstantial evidence alone may be sufficient to support a conviction for murder since the law makes no distinction between circumstantial evidence and direct evidence and, if circumstantial evidence is used to provide for a conviction, it must be inconsistent with any other hypothesis than that of guilt of the accused. (See eg. Kartar Singh & Anor v Rex [1952] 1 MLRA 340, Idris v Public Prosecutor [1960] 1 MLRA 265, Sunny Ang v Public Prosecutor [1965] 1 MLRA 38, Karam Singh v Public Prosecutor [1967] 1 MLRA 416, Chong Kim Siong v Public Prosecutor [1967] 1 MLRA 123, PP v Hanif Basree Abdul Rahman [2006] 2 MLRA 641 and Juraimi Husin v Public Prosecutor [1997] 2 MLRA 342.”




[48] As to what circumstantial evidence is, the summing up to the jury set out in Idris v Public Prosecutor [1960] 26 MLJ 296 at p.297 is most insightful:


“With regard to the definition of circumstantial evidence I can give you no better definition than quote to you the words of Lord Cairns in the case of Belhaven & Stenton Peerage reported in 1875 – 6 Appeal Cases, page 279:


My Lords, in dealing with circumstantial evidence we have to consider the weight which is to be given to the united force of all the circumstances put together, You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner.


But on the other hand you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and when united, producing a body of illumination which clear away the darkness which you are endeavouring to dispel.


In other words circumstantial evidence consists of this: That when you look at all the surrounding circumstance, you find such a series of undesigned, unexpected coincidences that, as a reasonable person, you find your judgement is compelled to one conclusion. If the circumstantial evidence is such as to fall short of the standard, if it did not satisfy that test, if it leaves gaps, then it is of no use at all.”


[49] In Sunny Ang v Public Prosecutor [1965] MLRA 38, the Federal Court had opined the following summing up to the jury by the learned trial judge as perfectly adequate in a case where the prosecution are relying on circumstantial evidence:


“Now, as I told you earlier on, one of the points about circumstantial evidence is its cumulative effect. Any one of these points taken alone might, you may think, be capable of explaination. The question for you is: where does the totality of them, the total effect of them, all lead you to? Adding them together, considering them, not merely each one in itself, but




altogether, does it or does it not lead you to the irresistible inference and conclusion that the accused committed this crime? Or is there some other reasonably possible explaination of those facts?”


[50] Coming back to the appeal presently before us, the evidence relied by the prosecution was wholly circumstantial. No one witnessed the commission of the crime.


[51] It is thus relevant to set out the more important facts, circumstances and coincidences which were relied upon and consider whether these facts, circumstances and coincidences when considered together in its totality and aggregate and not in isolation, leads only to one irresistible conclusion that it was the appellant who had occasioned the death of the deceased and no one else.


[52] The learned trial judge found and did in fact find the following facts and circumstances to be adequate to link the appellant with the death of the deceased. She found and stated at p.23 to 27:


“From the evidence as follows:


i. PW-18 heard a sound scream/cry from the neighbour’s house although she could not determine from which neighbour. The accused came out of the house and said that it was someone crying due to stomach ache. This means the accused also heard the cry




or scream. It was not something which PW-18 had imagined she had heard.


ii. Evidence of PW-14 shows that the trousers worn by the accused which was seized by forensic at the place of the incident confirmed has traces of mixed DNA of sweat whereby it is consistent with DNA belonging to the deceased and the accused. This supports the evidence of PW-18 that at the time of the incident the accused was with the deceased around the time when the incident happened.


iii. The phone call from deceased to PW-13 and PW-15 supported the evidence that the accused and the deceased were together at around 3.30 p.m. on 4.1.2013. There is also evidence that there was some disagreement between the accused and the deceased at 3.30 p.m. on 4.1.2013 i.e the date of the incident. The deceased was said to be crying over the phone when she spoke to PW-13 on the material date.


iv. The existence of the finger print of the accused on the blood smeared knife P6A, which was the weapon found at the crime scene on the mattress.


v. On the date of the incident at 7.30 a.m, PW-4 said he was the only one at home (the house where the incident happened) at that time and he went out to work in the morning.


vi. It was also in evidence that only him and his father (the accused) have the key to the house. The deceased did not have the key to the house. Before PW-4 went out to work on 4.1.2013 in the morning, he said that he had switched off the lights and the fan in the house. His work place was at LB Aluminium in Branang. On the date he reached his work place at 7.50 a.m. His evidence was that before 8.30 p.m. that day never did he leave his work place to go home. This was supported by the evidence of PW-6 (Encik Mohd. Nasri bin Maarof), the supervisor of the factory at LB Aluminium at Branang which PW4 work in.


vii. When PW-4 finished work in the evening on 4.1.2013 he went home and reached home at 8.30 p.m. When he arrived home he saw that the gate was closed but not locked. He called out to the deceased from out of the gate as he said he saw the lights in the first bedroom and the fan was on. PW-4 had then opened the gate and went into the compound to park his motorcycle at the pavement of the house. Again PW-4 had called out for the deceased but there was no answer. PW-4 then went to the front grill and saw that the grill and the front door was merely closed without being locked. It was then




that PW-4 went into the house and saw the body of the deceased at the door of the first bedroom.


viii. It was in evidence that PW-4 did not touch anything in the house when he went into the house at 8.30 p.m. on 4.1.2013. He said that everything in the house was in order and there was nothing strewn around. After that he went out of the house and made a call to the accused. At that point in time the accused was at his work place.


ix. It was in evidence by PW-4 that he knew that the deceased was in the house when he came back from work because every Friday the accused would fetch the deceased from TAFE College and brought her home. It was also in evidence that whenever the deceased came to stay at the house she would normally stay at the first bedroom.


x. PW-4 also identified the knife P6A as the knife which he had seen in the kitchen of the house, however PW-4 said that he had never seen the accused used the knife for cooking.


xi. The person/persons who went into the house after PW-4 at 8.30 p.m. on 4.1.2013 were the police who did the investigation at the crime scene. The accused did not go into the house after the police came.


[53] Her Ladyship also found that the evidence of PW-4, PW-13, PW-15 and PW-18 established without doubt that the appellant was with the deceased at the time of the incident on the day in question and the evidence of the appellant’s finger print on the knife and the mixed DNA of the deceased and the appellant on the trousers of the appellant nailed the coffin.




[54] We were entirely with Her Ladyship’s factual findings.


[55] The fact that the appellant would fetch the deceased every Fridays from her Kolej TAFE to spend the weekends at the appellant’s house as testified by PW-4, PW-13 and PW-15 was not disputed by the defence.


[56] PW-16’s testimony that the appellant had taken the deceased from Kolej TAFE at about 1.30 p.m. on 4.1.2013 was also not disputed. PW-16 testified that the appellant appeared angry and had shouted at the deceased why she had been late and had ordered the deceased to hurry up was not challenged by the defence. Equally PW-16’s testimony that the deceased was sad and embarrassed at being scolded by the appellant in front of her friends was also not challenged.


[57] PW-17 corroborated PW-16’s testimony that the appellant had taken the deceased from Kolej TAFE on 4.1.2013. He was able to identify the appellant on account of the appellant’s routine of fetching the deceased on every Fridays from the college’s campus. PW-17 also testified that the deceased had followed proper procedure when she left




the college by registering her name in the Buku Keluar Masuk, exhibit P56. The relevant page of the said entry is at p.209, Jilid 1, RR.


[58] The evidence of both PW-16 and PW-17 hence, had established beyond doubt that the appellant had taken the deceased from the said college on 4.1.2013.


[59] PW-13 testified that the last time she saw the deceased was on 28.12.2012 when the deceased came back home in Temerloh for a week. She appeared unhappy.


[60] On 4.1.2013 at about 3.38 p.m., PW-13 testified that she had received a telephone call from the appellant who had asked her about the deceased’s photographs appearing on facebook. The appellant had questioned her in a rough and angry manner who had posted the said photographs on facebook. He also asked whether it was the deceased who had requested her to post the deceased’s photographs on facebook. She told the appellant that she had herself posted the photographs of herself and the deceased on facebook.




[61] PW-13 knew that the deceased was with the appellant at his house in Mantin during the telephone conversation as the appellant had called the deceased by calling “Hei, mari sini” and passed his handphone to the deceased to speak with PW-13. PW-13 added that the deceased was crying when the deceased asked her who had posted her photographs on facebook. PW-13 replied that she did and before she could asked the deceased why she was crying, the handphone was snatched by the appellant.


[62] PW-15 also testified that the last time she saw the deceased was on 28.12.2012 about 6 days before the deceased’s demise, when the deceased came home. She was on leave. The deceased appeared confused and unhappy before departing for Mantin at the end of her leave. PW-15 also said that the appellant had beforehand told her not to ask anything from the deceased. She was confused but did not seek any clarification from the appellant.


[63] PW-15 testified that she heard the telephone conversation between PW-13 and the appellant on 4.1.2013 as PW-13’s handphone was put on loudspeaker. Amongst others, PW-15 testified that she heard the deceased crying over the telephone while asking PW-13 who had posted




her photographs on facebook. She described the appellant’s attitude towards the deceased in the following terms:


“Sebelum kejadian, agak-agak dalam sebulan, abang saya ada telefon saya beritahu yang Sintuja yang telah masukkan gambar-gambar Sintuja bersama kawan dan adik-beradik di dalam facebook. Saya beritahu abang saya ini adalah perkara biasa. Budak-budak masukkan gambar ke dalam facebook tak ada masalah. Kemudian saya telah menanya abang saya, Kanasan, macam mana abang saya tahu yang anak saya masukkan gambar-gambar dia ke dalam facebook. Saya ada menanyakan kepada abang saya, kenapa selama ini tidak ada apa-apa masalah mengenai Sintuja, baru-baru ini abang cerita pelbagai masalah fasal Sintuja. Dan saya juga ada tanya kepada abang saya sama ada anak-anak abang saya tidak suka Sintuja tinggal di rumah ataupun tidak. Dari mula lagi anak-anak abang saya tidak suka Sintuja tinggal di sana dan pergi ke kolej. Dan saya juga telah minta abang saya supaya menghantar anak saya Sintuja balik ke Pahang dan saya juga beritahu kepada beliau yang saya boleh membiayai pelajaran anak saya di Pahang.”


[64] The evidence of PW-13 and PW-15 established that at the material time (3.38 p.m.) the deceased was with the appellant and was crying. It is also apparent that there was a serious discord between the deceased and the appellant.


[65] The appellant’s testimony that he had sent the deceased to Mantin Bus Stop after fetching the deceased from Kolej TAFE on account that the deceased had wanted to meet up with her friends could not hold water in the light of the evidence elicited from the testimonies of PW-13 and PW-15 which was largely unchallenged.




[66] The evidence of PW-18 established that the appellant was in his house on 4.1.2013 before 6.00 p.m. She saw the appellant leaving his house when she was outside her house at about 6.00 p.m., meaning that before 6.00 p.m., the appellant was in his house.


[67] PW-18 heard a woman screaming at about 5.30 p.m. when she was outside her house tinkering with the flowers she had collected elsewhere but was not sure where the scream came from. The I.O had investigated the Chinese neighbour about 2 houses away from the appellant’s house, to the left of PW-18’s house. The family heard no scream. The I.O reasoned that the Chinese family’s house was rather far from the appellant’s house or the family could have been sleeping. The I.O’s reasoning is most probable. It could thus be inferred that the scream did not originate from the Chinese family’s house, otherwise the family would have known and would have affirmed so.


[68] When PW-18 asked the appellant what the scream was all about, the appellant apparently heard the scream too and seemed to know the reason as the appellant responded that someone was crying/screaming because of stomach ache.




[69] This evidence had established that there was indeed a woman screaming as heard by both PW-18 and the appellant.


[70] Hence, of great importance is: where did the scream come from? From the appellant’s response to PW-18’s query, it could be safely inferred that the appellant was referring to someone who was screaming from inside his house. Otherwise, without such knowledge he would not have responded that someone was crying/screaming in pain because of stomach ache. That someone must be someone who was inside his house.


[71] The corresponding issue is: who was that someone who was screaming?


[72] As stated earlier, the evidence of PW-16 and PW-17 established that the appellant had picked up the deceased from Kolej TAFE earlier in the day. The evidence of PW-13 and PW-15 established that the appellant was with the deceased at 3.38 p.m. when both the deceased and the appellant spoke to PW-13 over the appellant’s handphone. PW-4’s uncontroverted evidence was that it was the appellant’s routine to fetch




the deceased from Kolej TAFE every Fridays for the deceased to spend the weekends at the appellant’s house. In fact PW-4 had expected the deceased to be in appellant’s house on the evening of 4.1.2013 and had in fact called her out several times upon reaching the house at about 8.30 p.m. PW-18 heard the scream at about 5.30 p.m. At about 6.00 p.m. she saw the appellant leaving the house and did not see anyone coming to the house after the appellant left. At about 8.30 p.m., PW-4 found the deceased already dead in the main room of the house. PW-21 recovered the chopper knife (exhibit P6A) with blood stains on the mattress nor far from where the deceased body was found. The chemist (PW-14) found the blood stain on the knife was the deceased’s blood. PW-12 found the appellant’s right third finger print on the dried blood smeared blade of the knife. Apparently the deceased was last heard to be alive with the appellant. Correspondingly, the appellant was the last person to be with the deceased before the death of the deceased.


[73] Those were the circumstantial evidence. In our view, it irresistibly points to only one conclusion, i.e that the woman who was heard screaming by PW-18 and acknowledged by the appellant, was none other but the deceased.




[74] PW-4 testified that there were only two sets of keys to the doors, of the house. One set was with him and the other set was kept by the appellant. The deceased had no keys to the house. The I.O testified that there was no sign of force entry into the house. This evidence would negate any suggestion that the deceased had forcibly forced her way into the house.


[75] The evidence also eliminates any suggestion that PW-4 had opened the house and brought the deceased in. The evidence established that PW-4 was away at work from 8.00 a.m. to 8.00 p.m. as supported by the testimony of PW-4’s supervisor, Mohd. Nazri bin Maarof (PW-6).


[76] Hence, taking into account the testimonies of PW-16, PW-17, PW-13, PW-15, PW18 and PW-4 it is apparent that the only person who had taken the deceased into the said house was the appellant, who had the keys to the house. And, he must have taken the deceased home before 5.30 p.m. when PW-18 was outside the house after coming back from work. She did see anyone coming to or leaving the appellant’s house until she saw the appellant leaving the house at about 6.00 p.m. The appellant’s evidence that he had arrived at his house with the deceased at about 5.40 p.m. is clearly an afterthought. It was never suggested to




PW-18 or the I.O of the case. The appellant’s testimony that he told PW-18 that it was he himself who had screamed/cried because he had appendicitis and had taken some medication is clearly an afterthought. It was never suggested or put to PW-18 and the I.O during the crossexamination of these witnesses.


[77] The evidence shows that the deceased was already with the appellant in appellant’s house when the appellant called PW-13 at about 3.38 p.m. because the appellant had called the deceased and passed his handphone to the deceased for the deceased to speak with PW-13.


[78] In our view, the evidence of the presence of the appellant’s finger print on the blood smeared blade of the knife nailed the coffin. There can be no doubt that the appellant had used the said knife to inflict the fatal wound on the deceased’s neck that caused the death of the deceased as testified by PW-3, the pathologist.


[79] The presence of the appellant’s finger print on the blade of the said knife verily eliminates the involvement of third parties in the death of the deceased. The evidence of the I.O that there was no sign of force entry




into the house and the evidence of PW-4 that he found the house not


ransacked and everything in order when he first entered the house fortified our view. Additionally, the evidence of PW-18 that she did not see anyone coming to the said house after the appellant left was also not challenged.


[80] It does not matter that out of the four traces of finger prints on the blade of the said knife, only one was identified as that belonging to the appellant. According to PW-12, the 3 other fingerprints were insufficient for purposes of analysis for want of characteristics. It is equally irrelevant that PW-12 had failed to find traces of fingerprints on the handle of the said knife as it requires a smooth surface for the finger print to be imprinted on the surface of the object in question.


[81] What is important presently is this: the appellant had failed to account for the presence of his finger print on the blade of the said knife, leading to the only inference that he had used the said knife to inflict the fatal wound upon the deceased. All the more so when the appellant was refused entry into the house when he arrived at the scene after the commencement of police investigation, negating contamination of the forensic evidence gathered by the I.O and his team. Equally of relevance




is PW-4’s evidence that he had seen the said knife in the kitchen of the


said house prior to the deceased’s death.


[82] The intention of the appellant can be inferred from what he did in the absence of an express admission. In Tan Buck Tee v PP [1961] MLJ 176 at p.179, Thomson CJ had stated:


“There was the body with five appalling wounds on it, wounds penetrating to the heart and liver, which must have been caused by violent blows with a heavy sharp instrument like an axe. In the absence of anything else, whoever inflicted those blows must have intended to kill the person on whom they were inflicted.”


[83] Likewise, before us, the deceased had suffered multiple injuries on her head and face and the fatal injury was “the slash wound on her left side of the neck, 5.5 c 2.0 cm and 1.5 cm deep, with 7.0 cm tailing towards medial. This wound when explored, showed transacted left carotid artery and left external jugular vein” – see PW-3’s full post mortem report (exhibit P-14) evinced at p.130 to 135 of Jilid 1, RR. PW-3 found that this slash wound to the neck was fatal in nature and was the cause of death of the deceased.




[84] We differed though with the findings of the learned trial judge who found that the act of the appellant fell under limb (c) of s.300 of the PC. In our view, using a lethal weapon to inflict the injuries evinced in the post mortem report shows that the appellant had no other intention but an intention to kill the deceased, an act which is well within the ambit of limb (a) of the s.300 of the PC.




[85] Verily, we found no merit in the appellant’s appeal. Henceforth we dismissed his appeal and affirmed the conviction and sentence of the High Court.


DATED: 1st November, 2016






Court of Appeal, Malaysia




Counsel Solicitors:-


For the Appellant:


K. Vigneswaran Tetuan Viknes Ratna & Co Peguambela & Peguamcara No. 1-5-10th Floor, Block C Jalan 1/50, Diamond Square Off Jalan Gombak 53000 Kuala Lumpur


For the Respondent:


Mohd. Mokhzani Farid bin Mohd. Mokhtar Timbalan Pendakwa Raya Jabatan Peguam Negara 62100 Putrajaya



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