Mohd Firdaus Bin Mokhtar V Pendakwa Raya


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(Dalam Perkara Mahkamah Tinggi Malaya di Pulau Pinang Perbicaraan Jenayah No: 45-29-08/2012)


Di antara Pendakwa Raya lawan


Mohd Firdaus bin Mokhtar KORAM:








[1] The appellant was charged with murder under s.302 of the Penal Code and after a trial, was found guilty, convicted and sentenced to death by the learned judge of the High Court. Dissatisfied with the decision, the appellant appealed to this court against the conviction and sentence.


The charge


“Bahawa kamu, pada 3hb Mei 2010 jam lebih kurang 3.00 petang, di alamat No. 1089, Jalan Selamat, Sungai Bakap di dalam Daerah Seberang Perai Selatan, di dalam Negeri Pulau Pinang, telah menyebabkan kematian seorang bernama Mohd Faizal bin Mohd Zain (No. KP: 830718-08-5035) dan dengan itu kamu membunuh yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan. ”


Prosecution case


[2] On 3.5.2010, at about 5.00 pm, a male Malay came to inform Kpl. Siti Nora (SP3) who was on duty at the Enquiry Office at Sungai Bakap Police Station that his neighbour was assaulted at a kampung house at Jalan Selamat, Sungai Bakap. SP3 reduced the said information into Sungai Bakap Report No. 896/2010 (P7).


[3] On being informed, the investigating officer ASP Safuan (SP17) proceeded to the scene of crime. The scene was at a single storey wooden kampung house. At the said house, SP17 found the deceased body near the bedroom door close to the kitchen. The deceased body was covered in blood.




[4] The police Forensic Unit from the Ibu Pejabat Kontinjen (IPK), Penang collected several samples from the crime scene for analysis. The samples which were kept in the refrigerator, were however destroyed as the refrigerator was out of order. Thus the samples were not sent to the Chemistry Department for analysis.


[5] At the scene of crime, SP17 had met Husin bin Abdul Rahman, aged 83 years (Pak Husin). He was injured, being the victim of a robbery by a male Malay.


[6] The investigation by SP17 disclosed that the deceased was a mentally retarded person since childhood and also suffered from Parkinson disease. SP17 noticed there were slashed wounds on the deceased neck and also injuries on his leg, arm and chest. The deceased body was sent to Penang Hospital for postmortem.


[7] On 4.5.2010, at about 9.00 am, the postmortem of the deceased was conducted by the Consultant Pathologist, Dr. Bhupinder Singh, (SP6). The postmortem report (P9) was prepared and duly tendered in Court. SP6 was of the opinion that the cause of death of the deceased was ‘multiple slash and stab wounds to the neck and chest’.


[8] At the trial, the prosecution had tendered the s.112 statement recorded from Pak Husin by ASP Govindarajan (SP16) under s.32 (1)(i) of the Evidence Act, 1950 (P15) on the ground that Pak Husin was in poor health and he was suffering from cancer.




[9] Pak Husin’s version in the statement was that he was robbed by a male Malay on that fateful day and he was locked in a room in his house.


[10] SP11 was the sole eye witness who implicated the appellant in the murder of the deceased. The deceased was her brother, whilst the appellant was her boyfriend.


[11] On 3.5.2010 at about 3.00 pm, the appellant came to SP11’s house with the purpose of going to Pak Husin’s house to commit robbery. Pak Husin’s house was about 50 meters from SP11’s house.


[12] The appellant invited SP11 to accompany him to commit the robbery. He threatened to kill her if she refused. The appellant informed SP11 that he had brought along the necessary equipment to carry out the robbery. Both SP11 and the appellant walked to Pak Husin’s house.


[13] On arrival at Pak Husin’s house, the front and rear door of the house were closed. The appellant gained entry into the house by pushing the rear door. SP11 followed him inside. The appellant requested SP11 to ransack the bedroom near the kitchen but she did not carry it out as she was scared. The appellant proceeded towards Pak Husin who was at the front portion of the house. SP11 did not know what happened between the appellant and Pak Husin but she heard Pak Husin cried for help. She saw Pak Husin was herded by the appellant into the front bedroom and followed by sound of commotion coming from the said bedroom.




[14] At that time, SP11 noticed the deceased came to Pak Husin’s house and the deceased questioned why the appellant and SP11 were there, and also asked where was Pak Husin. The appellant requested the deceased to go home but he was adamant to know the whereabout of Pak Husin. The deceased was then standing on the five foot way of the kitchen door. He did not enter the house. It would appear according to SP11 that the deceased had intended to leave the house, but the appellant managed to grab the deceased and dragged the deceased by the collar of his shirt into the house. At the same time, the appellant instructed SP11 to run away to safety. But she did not. SP11 saw the appellant took out a knife measuring about 10 inches, from the back of his waist band and slashed the deceased’s neck with the said knife. As a result, the deceased suffered loss of blood. SP11 then rushed home.


[15] On arrival at her house, SP11 hid herself in her bedroom. She was scared, thinking of what had happened in Pak Husin’s house. Not long thereafter, SP11 received a call from the appellant requesting her to open the rear door of her house. SP11 obliged and the appellant entered the house where SP11 saw the appellant washed his hands. The appellant’s shirt and trousers were soaked in blood. The appellant took off and rolled his sweater which he wore. The appellant then entered the bathroom and he requested for a replacement shirt and trousers. SP11 gave him a white shirt but not the trousers. The appellant hid his shirt soaked in blood in the rolled up sweater. Before the appellant left SP11, he asked for her forgiveness.


[16] In the evening, together with her cousin, SP11 went to see the deceased. She entered Pak Husin’s house and noticed a lifeless body of his brother. SP11 then notified his father (SP5) that the deceased was




murdered. SP11 also contacted the appellant and informed him of the deceased death. The appellant replied that ‘he knew it’. SP11 kept asking why he murdered her brother and the appellant replied that he had no alternative.


[17] Despite of the incident, SP11 continued her intimate relationship with the accused. The accused treated SP11 well and her pregnancy from their intimacy was not aborted. SP11 did not inform the incident to anyone as she was afraid that both of them (the appellant and her) would go to prison as propagated by the appellant.


[18] About a year later, only then SP11 decided to inform the police that the deceased was murdered by the accused.


Decision at the close of the prosecution’s case


[19] At the end of prosecution’s case, the learned trial judge was satisfied that the prosecution had successfully made out a prima facie case of murder under s.302 against the accused. Accordingly, the accused was called upon to enter his defence.


Defence case


[20] The appellant (SD1) opted to give evidence on oath. He also had put up a defence of alibi under s.402 A of the Criminal Procedure Code (but not pursued in this appeal).


[21] The appellant lived at No.95, Tingkat Serindit 3, Taman Desa Jawi, Sungai Bakap, Pulau Pinang. Since 2009, he operated a burger




stall near his house. He was assisted by his brother (SD2). And since June 2010 until his arrest, he was employed at a factory called Biosis Valdor, Jawi. SP11 also worked at the same factory.


[22] SP11 was his intimate friend. He knew and familiar with SP11’s family – her father, mother, her brother Firdaus and the deceased. The deceased was SP11’s brother. SP11’s family knew that the appellant was SP11’s friend, but they did not know that SP11 had conceived the appellant’s baby. According to the appellant, SP11 wished to abort the baby but he did not mind to have the baby as he wanted to marry SP11. The baby was not aborted.


[23] On his defence, according to him, he finished his burger business at 1.00 am on 3.5.2010. He then retired to bed at 2.00 am until 3.00 pm in the evening of the same day.


[24] At about 4.00 pm, he left the house to a shop called MS Frozen Food, Taman Cendrawasih, Nibong Tebal to purchase burger and associated things. When he left the house, he noticed SD2 and his friends, SD3 and Wan Munshikin bin Wan Omar were at the burger stall.


[25] After making the purchase, he returned home. He did not go anywhere until he received the call from SP11 at about 5.40 pm on 3.5.2010 informing him the deceased death on that day (i.e 3.5.2010).


[26] On being informed of the deceased death, he rushed to SP11’s house. Several policeman and SP11’s neighbours were gathering near Pak Said’s house. He met SP11 there for a while and briefly talked to her. He said SP11 informed him that ‘abang dia mati dibunuh’. He did




not go to see the deceased’s body. At about 7.10 pm, he went back to his house.


[27] At about 8.00 pm, he started his burger business and closed the burger stall at about 1.00 am on 4.5.2010. That morning, he slept at SP11’s house at the request of SP11’s brother named Firdaus.


[28] In the morning, he accompanied Firdaus, SP11’s father, and a neighbor to the General Hospital, Pulau Pinang to claim the deceased’s body. After the deceased’s death, his relationship with SP11 and her family was normal.


[29] About 1 ^ years later, on 9.11.2011 at about 8.35 pm, he was arrested by the police on the ground of murdering the deceased. According to him, on the afternoon of his arrest at about 12.00 noon, he met SP11 at a nasi kandar shop, next to the Biosis Valdor’s factory. SP11 was having lunch together with another man. He quarreled with SP11 as he had previously seen SP11 with the same man. He told SP11 that he wished to break their relationship and requested SP11 to return all the presents given to her i.e, the shirt, trousers, handphone and sweater in SP11’s possession in her house.


[30] SP11 asked him to come to her house at 8.00 pm that night to get his things. At about 7.55 pm, he went to SP11’s house but she was not at home. He waited for SP11 at the latter’s house. At about 8.30 pm, a group of policeman came and arrested him. He was brought by the police to Sungai Bakap Police Station. Subsequently, he was charged in court and he denied killing the deceased.




Decision at the end of defence case


[31] Having reviewed both the evidence for the defence and the prosecution, in particular the evidence of SP11, the trial judge was of the view that the defence has failed to cast any reasonable doubt on the truth of the prosecution’s case, and concluded that the prosecution has proved its case beyond reasonable doubt.


The appeal


[32] Before us the appellant raised 3 issues:


i. Credibility of SP11, the sole eyewitness;


ii. The admission of the statement of Pak Husin under s.112 of the Evidence Act, as evidence (Exh. P15); and


iii. The learned judge failed to draw adverse inference on the prosecution’s failure to produce the shirt with blood stain found at the scene and blood sample not sent to chemist.


Our decision


[33] It is the submission of the learned counsel that the evidence of the sole eyewitness (SP11), the sister of the deceased is inherently incredible. SP11 who claims to be the eyewitness to the murder of her own brother had only reported the alleged incident to the police after 1 ^ years later. Her explanation for doing so was that she was threatened by the appellant. It is so unbelievable for a person like SP11 to help the appellant from the murder of her own brother by keeping quiet for a such a long period. It is unbelievable for SP11 to be in fear for 1 ^ years. She




could have sought help from her members of the family and even police for her safety.


[34] This issue had been adequately answered by the trial judge in his judgment (at pages 11 and 12 of AR 1):


‘It would appear that the prosecution’s case hinges on SP11. She was a related and interested witness. The deceased was her brother, whilst the accused was her lover or intimate friend. SP11 was placed between the devils and the deep blue sea. Why it took her over a year to disclose the murder? SP11 who was 19 years old at that time was a confused teenager. Her mind was muddled with many things, namely, her intimate affairs with the accused which led to her pregnancy might got exposed, her life and the life of her family members were threatened by the accused if she disclosed the murder episode, the loss of the accused being the father of the baby whom she conceived. Further, the bond of love was strong between her and the accused despite what had happened to the deceased, her brother.


In cross-examination and re-examination, SP11 had demonstrated her fear towards the accused who continuously threatened her life and the life of her family members. The accused was also aggressive, often beat and hit her and extorted money from her. Learned counsel argued that SP11 informed the police about the deceased’s murder as she had quarreled with the accused. She had an axe to grind. However in her evidence, SP11 said that she would still revealed to the police, even though there was no tiff between the accused and her: see Ismail bin KK Abdul Rahman v PP [1974] 2 MLJ 180.


Having regard to the above, notwithstanding that she was a related and interest witness, the delay in exposing the murder of her brother was satisfactorily explained by her. This court accepted her evidence.


As a rule of law, her evidence requires no corroboration. In a murder




case conviction on a solitary eye witness is legal provided the witness is wholly reliable. It is the quality and not quantity of evidence that material. This is consistent with the maxim enshrines in s.134 of the Evidence Act that “Evidence has to be weighed and not counted”. The matter thus depends upon quality of evidence and the circumstances of the case. If such a testimony is found to be entirely reliable, there is no legal impediment to the conviction of the accused on such evidence. ’


[35] This is finding of fact by the trial judge who had the visual advantage of seeing and hearing the witness, which we do not have. The finding of the trial judge should be respected.


[36] As to the submission of the learned counsel that SP11 was a participant to the crime and therefore an interested witness, the learned trial judge had explained as follows (at pages 21 and 22 of AR 1).


‘Guided by the principles in Mohd Jamil Yahya & Anor, supra and Harcharan Singh & Anor, supra to the facts of the instant case, it is my considered judgment that SP11 was not an accomplice of the accused or accessory after the fact because SP11 accompanied the accused not to commit murder, the offence charged, but to commit robbery.


SP11 did not share the common intention to kill the deceased as the offence was committed without premeditation. SP11 did not play any role in the killing of the deceased either before or after the incident and SP11 was continuously placed under threat by the accused.’


[37] The second issue, that Pak Husin was not called to testify. In his statement under s.112 Pak Husin said that he talked to the intruder and he could identify that person. He also said beside this person he saw two other figures (lembaga) at the back of his house. This the counsel




submitted had contradicted the evidence of SP11 who said only she and the appellant went to the home.


[38] In reply the learned Deputy Public Prosecutor said Pak Husin’s statement under s.112 was brought in to prevent the invocation of s114(g) against prosecution.


[39] There was evidence before this court that Pak Husin was suffering from dementia, bad failure of eye sight and hearing.


[40] The incident took place on 3.5.2010, his statement was taken on 5.5.2010. The trial only started on 14.1.2013, about three years later.


[41] Dr. Hajah Rabaeah bt. Mohd Sulaiman, Pengarah dan Pakar Perunding Bahagian Forensik, Hospital Bahagia, Ulu Kinta, Perak (SP15) gave evidence that Pak Husin was referred to her under s.342 CPC on 29.6.2010, where he was alleged to have attacked and injured his wife. She observed him for 3 or 4 month. Her observation about him was that he was suffering from ‘penyakit dementia dengan gejala psikosis (nyanyuk), sejenis penyakit kronik yang menyebabkan


kemerosotan ……. serta kecelaruan fikiran dari segi daya ingatan,


konsentrasi, intelek dan persepsi. Beliau juga mengalami masalah deria pendengaran dan penglihatan’ (see Exh. P10 at page 346 AR2). According to SP15, she was told by Pak Husin’s wife that he was nyanyuk since 2005 (see evidence of SP15 at pg 138 AR1).


[42] Based on the above report (dated 21.9.2010) and SP15’s evidence given on 12.7.2013, we agree with the learned DPP that Pak Husin is not a fit person to give evidence. We also mindful of the fact




that the trial of this case only begin in 14.1.2013, his condition would have been worse by then.


[43] As to the contradiction between the evidence of SP11 and the statement of Pak Husin, the trial judge in his judgment had accepted the evidence of SP11.


[44] We conclude that this issue has no merit.


[45] The third issue, that the learned judge should have drawn adverse inference on the prosecution’s failure to provide the results of the blood sample taken from the scene. The learned counsel submitted that the result of the blood sample would have clearly shown whether the accused was rightly implicated in the murder. The prosecution’s explanation that the refrigerator where the blood samples were kept was not in working order is hearsay. It is a lame excuse without any proof or evidence that the refrigerator was spoiled. If the result of the blood sample taken was produced in court it may reveal the truth. The person competent to say that the blood sample was spoilt would be the chemist and not the police.


[46] We took judicial notice that blood samples could easily be contaminated or spoilt if not properly kept save, for example if the refrigerator was not working. Furthermore the evidence before the court was that only the deceased and Pak Husin were injured. There was no evidence that the appellant was injured in the incident. To say that the blood sample could be of another assailant, the evidence is clear that only SP11, the deceased, Pak Husin and the appellant were there at the time of the brutal attack. This is a non issue.




Intention to cause death


[47] Intention to cause death is a matter of inference as enunciated in Tham Kai Yau & Ors v. PP[1976], thus:


‘It cannot be disputed that intention is a matter of inference. The deliberate use by some men of dangerous weapons at another leads to the irresistible inference that their intention is to cause death. This inference should therefore make it a simple matter to come to a decision as to intention, in any case, such as the present, where the weapons used by the appellants were deadly weapons and where the person killed was, struck more than one blown. ’


[48] In Mohd Asmadi b. Yusof v. PP [2011] 2 MLJ 302, the Federal Court held that:


‘[20] The facts showed that the appellant was conscious of what he was doing when he used the brick to hit the head of the deceased. His conduct showed that it was done with absolute callousness towards the result. We are of the view that when a brick or any hard object is used to hit the head of a person, there is a strong probability that it will cause death or such bodily injury as is likely to cause death. It is an evident risk to human life. It amounts to an act which is so imminently dangerous that it must, in all probability cause death or such bodily injury as is likely to cause death. The evidence also showed that after the deceased fell to the ground upon being hit on the head by the brick, the appellant assaulted him by using his hands and leg. We would think that the whole act was wholly inexcusable. ’


[49] The multiple slash wounds found on the neck of the deceased and the injuries on the leg were consistent with the evidence of SP11 who




testified that the appellant took out a knife from the back of his waist band and slashed the deceased’s neck. The deceased’s body was covered with blood and the deceased was dragged by the collar of his shirt by the appellant.


[50] An intention to kill may be inferred from the nature and number of wounds caused on the deceased and the weapon used to inflict the injuries.


[51] There were several fatal injuries on the deceased body, that is, injuries No. 16, 26 and 27 as listed in the postmortem report (P9). Fatal injury No. 16 was multiple slash and stab wounds over the neck region. Also multiple slash and stab wounds over the chest region. The injuries as noted in photographs P3 (18, 19, 20, 21, 22 and 23) were defensive injuries. The Consultant Pathologist (SP6) was of the opinion that the cause of death of the deceased was ‘multiple slash, and stab wounds to the neck and chest’. SP6 was of the opinion that the weapon used for inflicting the fatal injuries on the deceased was definitely a sharp and pointed weapon. Certainly a 10 inch knife was such a weapon. Failure of SP11 to give the description of the knife do not detract from the fact that the accused was armed with the knife and slashed the deceased’s neck with it. The injuries in photographs P3 (2, 3, 4, 5, 6 and 7) are obviously consistent with the evidence of SP11 that the deceased fell down on being chased by the appellant. Thereafter the deceased was struggling when he was dragged by the accused into Pak Husin’s house.


[52] The photographs of deceased at P3 no. 6 to 12 shows how bad were the injuries, the clear intention of the appellant to cause the deceased is death.






[53] Based on the above reason, we found there is no merit in the appeal. The conviction was safe. Therefore we dismissed the appeal and affirmed the conviction and sentence by the trial judge.








Court of Appeal Malaysia Date: 2nd March 2016


Counsel for the appellant:


Mr. C. Shanmugaiah (Mr. M. Chandran with him) [Messrs. Thiruchandran & Partners]


Counsel for the respondent:


Tengku Intan Suraya bt. Tengku Ismail Deputy Public Prosecutor Attorney General’s Chamber



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