DALAM MAHKAMAH RAYUAN MALAYSIA RAYUAN JENAYAH NO: N-05-141-06/2012 & N-05-170-06/2012
MAHKAMAH TINGGI SEREMBAN PERBICARAAN JENAYAH NO: 45-9-2011
1. MOHD AZMI BIN IBRAHIM
2. MUHAMAD HAFIZUL HAFIQ BIN MASRI … PERAYU-PERAYU
LINTON ALBERT, JCA MAH WENG KWAI, JCA ROHANA YUSUF, JCA
MAH WENG KWAI, JCA DELIVERING THE JUDGMENT OF THE COURT
1. The Charges
Both Appellants were charged with two offences. The first was that on 12/5/11 between 2.00 pm to 5.00 pm at No. 13, Taman Desa Permai, Simpang Durian, Jelebu, Negeri Sembilan, the Appellants, acting with common intention, caused the death of one Christy Erny (the deceased) an offence punishable under Section 302 of the Penal Code. The second charge was that both the Appellants on the same date, time and place, acting with common intention, attempted to cause the death of one Sumirnah (SP13) an offence punishable under Section 307 of the Penal Code
2. At Close of Prosecution’s Case
At the close of the Prosecution’s Case, the learned trial Judge called on both Appellants to enter into their defence on both the charges, on being satisfied that the Prosecutor had established a prima facie case against them.
3. At Close of Defence Case
At the close of the Defence case and upon hearing the submissions of the learned Deputy Public Prosecutor and the learned counsel, the learned trial Judge came to the conclusion that the Prosecution had proved a case beyond reasonable doubt against the 1st Appellant on both charges and a case beyond reasonable doubt against the 2nd Appellant on the 1st charge only.
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4. The Convictions/Findinq of Guilt and Sentences/Order
4.1. Accordingly, the 1st Appellant was convicted and sentenced to death on the 1st charge under Section 302 Penal Code and was convicted and sentenced to 18 years imprisonment on the 2nd charge of attempted murder under Section 307 Penal Code.
4.2. The 2nd Appellant who was a juvenile, was found guilty on the 1st charge and ordered to be remanded in prison at the Ruler’s pleasure. He was acquitted and discharged of the 2nd offence under Section 307 Penal Code.
5. Notice of Appeal
Being dissatisfied with the orders of the learned trial Judge both Appellants filed their Notices of Appeal to the Court of Appeal.
6. Hearing of the Appeals
6.1. The appeals in Rayuan Jenayah No. N-05-141-06/2012 and No. N-05-170-06/2012 were heard together.
6.2. Upon reading the Rekod Rayuan and the written submissions of the learned Deputy Public Prosecutor and the learned counsel and upon hearing the oral submissions of counsel aforesaid, the Court unanimously decided to
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dismiss both appeals on the ground that there was no merit to warrant appellate intervention.
7. Grounds of Decision
7.1. Brief Facts of the Case
(i) On 12/5/11 at about 1.00 pm, the Appellants went to a cyber cafe where SP13 and the deceased worked. The Appellants went to play computer games and to gamble on the computers.
(ii) The 1st Appellant went to room no. 1 where SP13 was playing on the computer while the 2nd Appellant went to the ‘ruang utama’ where the deceased was. The 1st Appellant stood behind SP13 while the 2nd Appellant stood behind the deceased.
(iii) Suddenly the 1st and 2nd Appellants assaulted SP13 and the deceased. They were ‘dipukul, dipijak, disepak dan dihentak bertubi-tubi’ by both the Appellants.
(iv) As a result of the grievous assault, SP13 was seriously injured ‘di bahagian paru-parunya’ while the deceased succumbed to her injuries.
(v) The Appellants were regular visitors to the cyber cafe having gone there on about 10 previous occasions to
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play and gamble on the computers. Both Appellants were known to SP13 and the deceased.
(vi) The cyber cafe premises were installed with a CCTV system. After the incident the Investigation Officer ASP Noorazman bin Bain (SP19) viewed the recordings of the CCTV and saw two male persons attacking both SP13 and the deceased. SP19 then requested Ang Boon Ley (SP9) to burn a DVD of the CCTV recording. The DVD (Exhibit P21) was produced in Court.
(vii) SP13 identified both the Appellants as the assailants of SP13 herself and of the deceased.
(viii) The deceased suffered 39 ‘marks of trauma’ at the back of her head, neck, stomach and other parts of the body. The cause of death as stated in the Post Mortem Report was “Compression on the neck”.
(ix) Cigarette butts and the 2nd Appellant’s slipper were recovered from the scene. Nurhaliza binti Hassan (SP6) in her evidence confirmed that the DNA of the Appellants were found on the cigarette butts while traces of the deceased’s blood were found on the 2nd Appellant’s slipper.
(x) The CCTV recording showed the 1st Appellant ‘hantuk-hantuk kepala simati ke lantai’ and that the 1st Appellant ‘menekan lama leher simati dengan lutut’.
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The 2nd Appellant was also shown to ‘tumbuk simati beberapa kali di muka dan sepak muka simati dan pijak simati’.
(xi) In their defence, both Appellants testified that they had visited the cyber cafe at the material time to gamble on the computers. Having lost his bets and when left with RM2.00 credit only, the 1st Appellant requested SP13 for a loan. Initially SP13 ignored the 1st Appellant but on the repeated requests of the 1st Appellant, SP13 was said to have scolded the 1st Appellant ‘babi’ and ‘kalau tak ada wang, jangan main di sini anjing!’. SP13 was also said to have sworn ‘niamahai lu!’ at the 1st Appellant.
(xii) The 1st Appellant testified that he got angry and pulled SP13 causing her to fall off the chair. Fearing that the commotion may be heard by ‘orang di ruang tamu computer’, the 2nd Appellant then pulled the deceased away till she fell onto the floor. When the deceased screamed, the 1st Appellant panicked and started to punch the deceased on her face and head to keep her quiet.
Both Appellants testified that they did not have the intention to cause the death of the deceased. They admitted assaulting the deceased so as to stop her from screaming and attracting the attention of others.
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7.2. Submission of Counsel for the Appellants
At the hearing of the appeal, learned counsel confined his submissions to two issues only, namely:-
(a) that the learned trial Judge erred in law when he wrongly admitted the DVD (Exhibit P21) into evidence; and
(b) that the learned trial Judge failed to consider the provisions of Section 300(c) of the Penal Code.
7.2.1. The DVD Point
Counsel submitted that the DVD was ‘burnt’ from the hard disc of the CCTV, a computer, which was a document within the definition of Section 3 of the Evidence Act 1950. And for a computer generated document to be admissible in evidence, the prosecution had to comply with the provisions of Section 90A(2) of the Evidence Act 1950 (see Ahmad Najib Aris v PP  2 CLJ 800 FC) that is, to produce a certificate issued by a person in charge of the computer stating that the computer was in good working order (see Hanafi bin Mat Hassan v PP  3 CLJ 369 CA). However, in the present case it was submitted by counsel for the Appellants that the prosecution had failed to produce a certificate in respect of the downloading of the images from the
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CCTV into a hard disc and the downloading from the hard disc into the DVD. This failure to produce a certificate, it was submitted, was fatal to the prosecution’s case.
We are of the view that the contention by the counsel is without merit in light of the following:-
i. although, the prosecution did not tender any certificate under Section 90A(2) of the Evidence Act, the Prosecution had called Yap Chun Tek (SP8) and Ang Boon Lay (SP9) to testify orally in Court.
ii. SP8 was the person who had installed the CCTV at the cyber cafe and SP9 was the person who had ‘burnt’ the DVD.
iii. SP8 had testified that the CCTV was last inspected in March/April 2011 that is, about one to two months before the incident in May.
Counsel for the Appellants had submitted that SP9 had failed to state in his evidence that the computer (ie. CCTV and the hard disc) were in good working order.
However, a perusal of the Notes of Proceedings in Rekod Rayuan Jilid 3 at page 110 (QA2) and at
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page 116, will show that SP9 did in fact testify that the CCTV was in good working order and that the hard disc from which the DVD was ‘burnt’ was also in good working order.
The Court takes the view that as SP8 and SP9 were called as witnesses to testify on Exhibit P21, the Prosecution had complied with the deeming provision of Section 90A(6) of the Evidence Act which provides as follows:-
“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 or inquiry in relation to the 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.”
In the case of R v Shepherd  1 AER 225
HL it was held that:-
“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
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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.”
In the cross examination of SP8 and SP9, counsel for the Appellants had failed to establish that the CCTV and the hard disc were not in good working order.
Further, it was in evidence that Kpl. Mohd Nizam bin Jaafar (SP3), SP9 and SP19 had watched the images on the CCTV at the cyber cafe itself soon after the incident and there was nothing to suggest that the CCTV was not in good working order. SP3, SP9 and SP19 were able to watch the images on Channel 1 of the CCTV showing the Appellants going up the staircase to the cyber cafe; on Channel 2 showing the 1st Appellant assaulting the deceased and holding her by the neck; on Channel 3 showing the 2nd Appellant standing behind the deceased who was seated at the computer and suddenly assaulting the deceased and then showing the 1st Appellant also assaulting the deceased before showing both Appellants leaving through the front glass door and on Channel 4 showing the 1st Appellant standing behind SP13 and suddenly
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assaulting SP13 till she fell off the chair and hitting her head against the floor.
The learned trial Judge correctly accepted the evidence of SP3, SP9 and SP19 as being ‘direct evidence’ when they testified as to what they said about the CCTV.
In Taylor v Chief Constable Cheshire  1 AER 225, it was held at page 230 that:. He who saw may describe what he saw because, as Ackner LJ said in R v Kejala, to which I have referred, it is relevant evidence provided that which is seen on the camera or recording is connected by sufficient evidence to the alleged actions of the accused at the time and place in question. As with the witness who saw directly, so with him who viewed a display or recording, the weight and reliability of his evidence will depend on assessment of all relevant considerations, including the clarity of the recording, its length and, where identification is in issue, the witness prior knowledge of the person said to be identified in accordance with well-established principles .
Such evidence is not in my view, inadmissible because of the hearsay principle. It is direct evidence of what was seen to be happening in a particular place at a particular time and, like all direct evidence, may greatly in its weight, credibility and reliability.”
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It is only when the person in charge of a computer is not called as a witness to testify on the good working order of a computer that it is necessary for a certificate under Section 90A(2) to be tendered in evidence. It will be superfluous for the prosecution to have called SP8 and SP9 as witnesses and yet at the same time be required to tender the certificate under Section 90A(2) (see Gnanasegaran Pararajasingam v PP  4 CLJ 6 at page 18).
Where a witness has been called to testify on the good working order of a computer, a certificate is not absolutely essential, ie, it is not a sine qua non for its admissibility. In Gnanasegaran Pararajasingam the production of a certificate was held by the Court to be permissive and not mandatory and that such a certificate need only be tendered if an officer is not called to testify that the statement is produced by a computer. The Court on this issue stated:-
“On reading through s 90A of the Act, we are unable to agree with the construction placed by learned counsel. First and foremost, s 90A which has 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, s 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
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that under sub-s (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 sub-s (2). Thus, sub-s (2) is permissive and not mandatory. This can also be seen in sub-s (4) which begins with the words ‘Where a certificate is given under subsection (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 sub-s (2) as sub-s (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. It is also our view that the prosecution can tender the computer printout through the investigating officer without calling any bank officer. Therefore, when they adopt this way of proof, then it would be incumbent upon them to establish that the document is produced by a computer in the course of its ordinary use by producing the certificate under sub-s (2). The reason seems to me to be obvious as the investigating officer will be in no position to say that the printout is produced by a computer in the course of its ordinary use, as he is not an officer of the bank.
In the present case, Zainal – the person in charge of the operations of current accounts – testified that the statement of accounts was a computer printout.
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Therefore, in our view, the first part of sub-s (1) has been proved, ie that the document is a computer printout. It would be superfluous for him to issue a certificate under sub-s (2) when firsthand evidence that ‘the document so were produced by a computer ‘ was given by Zainal. It would be superfluous to have a provision such as in sub-s (6) if in every case a certificate must be produced. It follows, therefore, that such a certificate need only be tendered if an officer like Zainal is not called to testify that the statement is produced by a computer. Then the certificate becomes relevant to establish that the document is produced by a computer in the course of its ordinary use. It is our view that when such an officer is not called, the court cannot rely on the deeming provision of sub-s (6). Once the court accepts the evidence of Zainal – and in this case we cannot see any reason whatsoever for the court not to as there was no challenge by cross-examination – the prosecution has succeeded in proving what s 90A(1) requires them to prove: that such document was produced by the computer and in view of the deeming provision of subs (6), the second part is also proved.” (emphasis added).
The decision in Gnanasegaran Pararaja-singam was approved by the Federal Court in Ahmad Najib bin Aris v PP (supra).
To illustrate the point above, we refer by analogy to the situation where a photographer is called as a witness to produce his photographs as exhibits in
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Court. The photographer is the maker of the photographs and he produces the negatives thereof as primary evidence. To our minds, it would be superfluous if not ridiculous to require the photographer using a high-technology camera which is classified as a computer, to also tender a certificate under Section 90A(2) before the photographs and negatives can be admitted in evidence.
SP8 had confirmed that he was the one who had installed the CCTV and that it was last serviced in March/April 2011. Besides stating that the CCTV was in good working order, SP8 explained that (the images) in the CCTV recording could not be altered or edited at all.
For the above reasons, in our judgment, we are of the view that the learned trial Judge did not err in law when he admitted Exhibit P21 into evidence without a certificate issued under Section 90A(2) of the Evidence Act.
In any event, Exhibit P21 will only be strong supporting evidence of the oral evidence of SP13 as to what actually happened at the cyber cafe on that fateful day.
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7.2.2. The Section 300(c) Penal Code Point
The second bone of contention by counsel for the Appellants was that the learned trial Judge failed to consider the provisions of Section 300(c) of the Penal Code correctly, in that the learned trial Judge failed to consider that the only injury of a compression on the neck, said to be the cause of death, was only likely to cause death. And as the words ‘likely’ or ‘more likely’ are not mentioned in Section 300(c) but in Section 299 Penal Code, the charge ought to have been reduced to a lesser offence of culpable homicide not amounting to murder under Section 304A of the Penal Code. Contrary to what was submitted by counsel, it will be noted that the learned trial Judge did consider the provisions of Section 300(c) Penal Code very carefully in his grounds of judgment.
At this juncture it will be useful to consider the exact wording of Section 300(c) Penal Code which reads as follows:-
“Except in the case hereinafter excepted, culpable
homicide is murder –
c) if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in
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the ordinary course of nature to cause death”.
The learned trial Judge at page 12 of the Rekod Rayuan Jilid 2 did correctly set out the facts in compliance with the requirements of Section 300(c) to wit:-
“i) Christy Erny telah mati;
ii) Christy Erni telah mati akibat kecederaan yang beliau alami;
iii) Kecederaan tersebut telah dilakukan oleh mana-mana satu OKT;
iv) Serangan/Perbuatan mencedera tersebut
telah dilakukan dengan niat untuk
melakukan kecederaan tersebut;
v) Kecederaan tersebut adalah cukup cukup
pada lazimnya untuk menyebabkan
kematian Christy Erny (simati).”
and correctly applied the principles as enunciated in Sainal Abidin bin Mading v PP  4 MLJ 497 at
501 to 504.
By all accounts, the evidence showed that both the Appellants had brutally and cruelly assaulted the deceased. Both Appellants were physically bigger and stronger than the deceased. The unfortunate deceased did not stand a ghost of a chance to survive the severe beating and attack by the Appellants. The Appellants had inflicted the severe injuries on the deceased that
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were sufficient to cause death in the ordinary course of nature. Once the intention to cause the bodily injuries actually found to be present was proved by the Prosecution, the only question that remained to be answered was whether the injuries were sufficient in the ordinary course of nature to cause death. It did not matter that the Appellants had no intention to cause death or that there was no intention even to cause an injury of a kind that was sufficient to cause death in the ordinary course of nature or that the Appellants had no knowledge that an act of that kind would be likely to cause death. The learned trial Judge had correctly found that the Appellants had the intention to cause the bodily injuries and that the injuries were sufficient in the ordinary course of nature to cause death.
According to the evidence of Dr. Syarifah Safoorah binti Syed Alwee Al’Idrus (SP5), the deceased suffered trauma to over 70% of her body. In Exhibit P8 under the heading “Marks of Trauma” at item 22, the fatal injury was described as “the surrounding neck muscles showed several localised bruises” and the cause of death was described as “Compression of the neck”. This was caused by sustained pressure being applied until florid petechiae oozed from the deceased’s mouth. The fatal injury was caused by the Appellants intentionally and not accidentally. (Mohd Asmadi bin Yusof v PP  2 MLJ 302).
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SP5 in her evidence had stated that there was no other cause that had led to the death of the deceased other than the injury to her neck. This evidence clearly negated the contention of counsel for the Appellants that as SP5 had mentioned the words ‘likely’ or ‘most likely’ to have caused the death in her cross examination, the provisions of Section 300(c) Penal Code therefore did not apply. Counsel had submitted that the offence was one under Section 299 and not Section 300(c) Penal Code. However, we are of the view the fact the word ‘likely’ is mentioned in Section 299 Penal Code does not mean that the learned trial Judge ought to have reduced the charge to an offence under Section 304A Penal Code given the
circumstances of the case. It is abundantly clear that the intention of the Appellants clearly fell within the ambit and scope of Section 300(c) Penal Code. (Case of Tham Kai Yau & Ors v PP  1 LNS 159 FC distinguished).
In the result, the appeals of the Appellants were dismissed and the orders of the learned trial Judge affirmed.
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Date of decision : 19th day of February 2014
Dated this : 20th day of May 2014
sgd ( MAH WENG KWAI ) Judge Court of Appeal Malaysia
For the 1st and 2nd Appellants : Hanif bin Hassan; Messrs Hanif Hassan & Co
For the Respondent : Wan Shaharuddin bin Wan Ladin (Nadia Hanim Mohd Tajuddin with him) Timbalan Pendakwa Raya Jabatan Peguam Negara, Malaysia
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