DALAM MAHKAMAH RAYUAN, MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: Q-05-13-01/2015
NGUYEN HONG QUANG………….APPELLANT
(IN THE MATTER OF CRIMINAL TRIAL NO. SBW-45-6/3-2014 BEFORE THE HIGH COURT OF SABAH AND SARAWAK SITTING
NGUYEN HONG QUANG (ACCUSED)
BEFORE THE HONOURABLE
DAVID WONG DAK WAH, JCA DR. PRASAD SANDOSHAM ABRAHAM, JCA MARY LIM THIAM SUAN, JCA
JUDGMENT OF THE COURT
1. This is an appeal against the decision of the High Court Judge in which the learned Judge convicted and sentenced the Appellant on the ground that the Appellant/accused had failed to raise a reasonable doubt in the prosecution case for murder under section 302 of the Penal Code.
2. The charge against the Appellant reads as follows:
“That you, NGUYEN HONG QUANG (M) (VIETNAM) (PASSPORT NO. B 684829) on the 22nd March 2013, at about 12.30am inside the Vessel M.V. Brave Ocean, at Tanjung Manis Anchorage, Sungai Rajang, in the District of Sarikei, in the State of Sarawak, did commit murder by causing the death of one, Ngo Trong Cuong (M) (VIETNAM) (PASSPORT NO. B 18212593) and you thereby committed an offence punishable under section 302 of the Penal Code.”
3. We heard the appeal and after due consideration to respective submissions of counsel, we unanimously allowed the appeal and set aside the order of the High Court and our reasons are these.
4. The facts of the case have been set out by the learned DPP in his submission and we adopt it with some appropriate amendments. On 22.3.2013, PW14 Lim Kie Jeong, who was the local shipping agent, was on board on a vessel named Brave Ocean [the vessel] when he was informed by the crew that something happened in the Captain’s Cabin of the vessel while he was on board. PW14 then went to the Captain’s Cabin and he saw that Captain Ngo Trong Cuong [the Deceased] was lying on the floor, with blood all over parts of the cabin. The Deceased was then taken to Sarikei Hospital where PW10 Michael Anak Tandang, the Assistant Medical Officer of Sarikei Hospital confirmed the death of the Deceased.
5. Subsequently, on being informed of a possible crime being committed, PW13 ASP Abdul Samat bin Amit on the same day together with his police team boarded the vessel. PW13 was then informed by PW14 that the place of the incident of the possible crime was inside the Captain’s Cabin at the upper deck of the vessel. PW13 was also informed by the crew of the vessel that the suspect is named Nguyen Hong Quang [the Appellant], and premised on that information, PW 13 arrested the the Appellant.
6. PW13 then went to the Captain’s Cabin and found that there were a lot of blood stains on the floor and on the sofa. There were also some blood stains on the walls.
7. The chief officer of the vessel one Ta Trung Minh then informed PW13 that the knife used by the Appellant was in his possession and had been seized from the Appellant’s hand. The said Ta Trung Minh then took PW13 and his police team to his room where he showed PW13, the knife which was subsequently seized as an exhibit.
8. Samples of blood stains were taken from the ears of the Appellant and it is undisputed that the DNA analysis from the aforesaid samples revealed a mixed profile that was contributed by at least two sources, one of which was that of the Deceased. DNA analysis on the bloodstains found on the seized knife revealed the presence of the DNA of the Appellant on the handle of the knife.
9. The Post Mortem Report (exhibit P35) on the Deceased prepared by PW12 the Pathologist who revealed that the cause of death was chest injuries caused by stab wounds.
11. In our view, the High Court Judge had correctly set out the elements required to be proved by the prosecution for a prima facie case to be established at the end of the prosecution case. Briefly these elements are these:
1. That the Deceased is Ngo Trong Cuong (M) (VIETNAM) (PASSPORT NO. B 18212593)
2. That the Deceased died as a result of the injuries sustained by him?
3. That it was the Appellant who had caused those injuries which led to the death of the Deceased
12. In view of the undisputed evidence concerning the identification of the Deceased and the cause of death (pathologist report), elements 1 and 2 were easily proven by the prosecution.
13. In respect of the third element as whether it was the Appellant who had caused the injuries, the learned Judge acknowledged that the prosecution’s case was premised on circumstantial evidence as there was no eye witness to the crime so to speak. Premised on that the learned Judge concluded that in his view the totality of the prosecution’s evidence is such that it could only be the Appellant
who had killed the Deceased, relying mainly on the Appellant’s DNA profile found on the knife handle. This is what the learned Judge said :
“Taking all the above in totality, and considering all the circumstances of the case, the irresistible conclusion points towards no one other than the Accused who had inflicted the fatal stab wounds upon the Deceased which caused the death of the Deceased on the day and time in question.
This Court was therefore satisfied that the prosecution had proven the ingredients of the offence of murder under section 300 of the Penal Code and punishable under section 302 of the same Code”
Hence defence was called by the learned judge.
14. The Appellant opted to give a statement from the dock which the learned Judge found that it did not raise a reasonable doubt in the prosecution’s case and hence convicted the Appellant and sentenced him to death by hanging.
Our grounds of decision:
15. The main complaint of the learned counsel for the Appellant was mainly that the learned High Court judge had handed down a “non-
speaking” judgment” in that the learned Judge had failed to give maximum evaluation of the totality of evidence before him.
16. According to the learned counsel for the Appellant, the learned Judge’s first failure of maximum evaluation was the failure to realize much of the evidence relied on by the learned Judge was in fact hearsay and inadmissible. These evidence were that of the two crew members of vessel, namely Nguyen Van Khiet and Ta Trung Minh. It was submitted that these two crew members were never called as witnesses nor were they offered to the defence of the prosecution case. Hence the learned Judge should not have referred to what they have said to PW13 and in the police report (P37).
17. The aforesaid mentioned Nguyen Van Khiet was featured in the learned Judge’s grounds as follows:
“PW13 was also being informed by the crew of the said vessel that the suspect is named Nguyen Hong Quang, the Accused and he was inside his room ie in the Engineer’s room which was located beside the Captain’s cabin”
18. As for exhibit P37, the learned Judge allowed the full police report to be admitted despite the fact that there was incriminatory evidence contained therein. Those evidence were these. When PW13 went to the crime scene on the vessel, he was informed by Ta Trung Minh, the chief officer of the vessel, that the knife (P26(A) was used by the Appellant to harm the deceased and it was seized from the Appellant’s hand.
19. Learned counsel also submitted that adverse inference should be drawn against the prosecution for not calling those two witnesses as they would be material witnesses to the prosecution case. Further learned counsel relied on the fact that the maximum width of the knife was up to 5.5 cm while the wounds were from 6cm to 10 cm to submit that the P26(A) could not be the knife used in the stabbing.
20. In rebuttal, learned DPP submitted that there was no allegation by the Appellant that the two aforesaid witnesses had reasons to frame the Appellant of the crime. Further it was submitted that in view of the presence of blood stains of the Deceased found on the Appellant’s body and the Appellant’s DNA found on the knife’s handle, hence the non-calling of the two aforesaid witnesses were non-consequential.
21. In our considered view, there was little doubt whatever was said to PW13 by two aforesaid witnesses were hearsay and inadmissible. This was not disputed by the learned DPP as we did not find anything in his submission to rebut it. That being the case, the learned Judge should have expunged those evidence. But that was not what happened here. In fact the learned Judge had relied on those hearsay evidence and in our view could have been prejudiced by it. Be that as it may, we went on to examine the remaining evidence in the form of DNA evidence linking to the killing of Deceased and we had asked ourselves the pivotal question of whether it was the Appellant who had inflicted the fatal stab wounds to the chest of the Deceased.
22. In answering that question, we were fully aware that at the end of the prosecution case, the prosecution’s evidence must be such that if the Appellant had remained silent, the Court must be willing to convict. What that meant, in our considered view, was simply that the prosecution had proven its case beyond reasonable doubt.
23. Having evaluated the evidence in its totality in the context of a murder charge, we had found that the prosecution had not proven a
prima facie case to warrant for the Appellant to make his defence and our reasons are these. Firstly, without the two vital witnesses mentioned earlier, we found that the prosecution had left a gaping hole in its case. These two witnesses were material witnesses to the crime and would have provided vital evidence as to why one of them had concluded that it was the Appellant who had killed the Deceased. As to why they were not called, the notes of proceedings did not provide any insight at all. As pointed out by learned counsel for the Appellant, it was intimated by the prosecution in its opening statement (page 5 Jilid 1) that these two witnesses would be called but at the end of prosecution case, not only were they not called they were not even offered to the defence. In our view, mindful that the prosecution is fully entitled to call whoever it so wishes but when material witnesses were not called, the Court is entitled to draw inference as it deems fit. In this case, though we draw no section 114(g) inference, we however found that the calling of these two witnesses could have help filled in the deficiencies in the remaining evidence which we now deal with.
24. As pointed out earlier, the learned Judge relied on the presence of the Appellant’s DNA on the knife handle and Deceased’s blood stains on the Appellant in his findings. With respect, the learned
Judge failed to give due consideration to the evidence elicited from cross examination of PW11, the scientific officer, relating to the possibility of a third person’s DNA on the handle of the knife. For clarity, we set out the relevant part of the note of proceeding (see Q282 – page 64 Jilid 1).
“Q281 Referring to page 3 at paragraph (b) of P9. You
said in your report “the DNA profile developed of swab of handle of knife E11 and blood stains indicated on cotton swab E12 revealed that it was a mix profile consistence that a being contributors by at least by two sources”. In other words, that could have been more than two sources?
A It depends because after the sentence that I said at least two sources, I stated that the sources represented by blood specimen 1 and blood specimen E13 were consistence as being the two contributors which means that only these two person were the two contributors of this mix profile.
Q282 Refering to paragraph (d) of the same page at P9.
It could be i.e. the blood stains belong to an unknown third party not named by you in this entire report?
It could be.
This point was not alluded to by the learned Judge nor was it explained in re-examination of PW11 as to who that person was or could be. In view of the fact that the prosecution’s case was premised on circumstantial evidence, this unexplained third person left a gap in the prosecution case. Had the two witnesses testified in Court, they could have found the missing link to the prosecution case.
25. Another piece of evidence which we found troubling was the testimony of PW12 (the forensic witness) that the stab wounds on the Deceased could be caused by another weapon as the width of the wounds were from 6cm to 10 cm while the maximum width of the knife was only 5.5 cm. This again was not satisfactorily explained.
26. Premised on the above analysis of the evidence, we were of the view that there were merits in the Appellant’s appeal and hence found that the learned Judge should not have called the Appellant to enter his defence at the end of the prosecution case as a prima facie case had not been proven. In view of our findings, we did not
find it necessary to comment on the unsworn statement of the Appellant.
26. For reasons stated above, we find that the conviction unsafe. Accordingly, we allowed the appeal and set aside the High Court order. The Appellant is acquitted and discharged.
Dated :21 October 2016
(DAVID WONG DAK WAH)
Judge Court of Appeal Malaysia
For the Appellant : Mr Orlando Chua
Wong Orlando Chua & Kuok Advocates
For the Respondent : Tn. Awang Armadajaya bin Awang Mahmud, DPP
Jabatan Peguam Negara, W. P. Putrajaya
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision.