DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO: P-05-419-2010
OMAR BIN SHAARI … PERAYU
PENDAKWA RAYA … RESPONDEN
(Dalam Mahkamah Tinggi Pulau Pinang Perbicaraan Jenayah No: 45-23-2007
Pendakwa Raya dan
Omar bin Shaari
Koram : Abdul Malik bin Ishak, HMR Azahar bin Mohamed, HMR Mohd Zawawi bin Salleh, HMR
JUDGMENT OF THE COURT
 The appellant Omar bin Shaari was charged and tried in the High Court at George Town for committing murder of Faridah bt Mohd Sharif (“the deceased”), punishable under 302 of the Penal Code (“the Code”). The offence was said to have been committed on 12.9.2006 between the hour of 11.00 am to 2.00 pm at the appellant’s house with an address known as No. 307-1, Jalan Dato Keramat, Daerah Timur Laut, Pulau Pinang. It was the prosecution’s case that the appellant was the person who murdered the deceased and then transported the deceased body by car and left it at a hill slope at Minden Height.
 At the conclusion of the trial, the learned trial judge convicted the appellant and sentenced him to the mandatory death penalty prescribed by the Code. The appellant then appealed to this court. We heard his appeal, wherein at its conclusion we unanimously allowed it. As a result, the conviction was quashed and the sentence set aside. We now give our reasons.
 The relevant facts giving rise to the charge of murder against the appellant are as follows. There is no eye witness to this crime. Zaharah bt Mohd Sharif (“PW11”), the sister of the deceased said
that every Tuesday at about 11.40 am, she would bring the deceased to work at the Penang Club. PW11 last saw the deceased on 12.9.2006 at PW11‘s home at about 11.30 am. At about 2.00 pm, PW11 looked for the deceased at the Club but did not find her. She then made a call to Roslan (“PW15”), the deceased’s husband. PW11 tried to call the deceased’s handphone but failed. PW15 tried to look for the deceased but to no avail. Sharidah bt Mohd Shariff (“PW3”), the elder sister of the deceased last saw her on 11.9.2006 at night. When she was informed by PW11 on 12.9.2006 that the deceased failed to appear by night time, PW3 went to the police station with PW15 to lodge a police report.
 ASP Sidambaram a/l Arunasalam (“PW17”), the Investigating Officer received information on 23.9.2006 at about 3.45 pm of a discovery of a body (later identified as the body of the deceased) at Jalan Minden. On arrival at the scene, PW17 noticed that it was a hill slope at Minden Height. PW17 conducted a preliminary inspection of the body and saw that the body of the deceased was in a green and white shirt with a black pant. The hands were bound with a nylon string to the back. There was no jewellery on her body.
 The post-mortem on the deceased carried out by the pathologist, Dato’ Dr Bhupinder Singh a/l Jeswant Singh (“PW21”) on 24.9.2006 found that the body was in a state of decomposition with hands tied at the wrist joints with a piece of green nylon string. PW21 certified the cause of death of the deceased as manual strangulation. PW21 found that the upper part of the neck of the deceased being strangled. He said that it was possible that such injury could have been caused by plastic bag been applied and was pulled back causing the fracture of the higher bone.
 Subsequently, the appellant and his wife were arrested by C/lnspector Mohd Ismail bin Syed Meerah (“PW18”) at a house No. 142-B, Jalan Md Taib, Jelutong on 26.9.2006. Four handphones were seized from the house. One of it Nokia model N1100 was identified by PW15 to belong to the deceased.
 In the course of police investigation, on 26.9.2006 at about 3.30 pm, the appellant had led ASP Shamsudin bin Mamat (“PW14”) to two gold shops which the appellant had sold some items there. The first shop was Gotama Enterprise at Hutton Lane and the second was Putaran Maju Enterprise, Jalan Dato Keramat. Search list (exhibit “P9”) was issued for exhibits P20-P23 seized at Gotama Enterprise and search list (exhibit “P11”) for exhibits P24-
P30 seized at Putaran Maju Enterprise. Goh Soo Beow (“PW6”), the owner of Gotama Enterprise testified that he ran a money lending business. On 12.9.2006, the appellant came to his shop to borrow some money and gave 2 chains and 2 rings (exhibits P20-P23) as collateral. The sum borrowed was RM2,700.00. A receipt was issued for the said transaction (exhibit “P8”). Wong Kim Lye (“PW7”), the owner of Putaran Maju Enterprise also ran a money lending business. He testified that on 14.9.2006 at about 10.45 am, the appellant came to borrow some money and gave 1 chain, 1 pendant and 4 earrings as collateral for the sum of RM1,200.00 borrowed.
 At the trial, the prosecution tendered a statement of Bakar bin Arabee (exhibit “P16”), the owner of house number 307-1, Jalan Dato Keramat, Pulau Pinang who has passed away, recorded under section 112 of the Criminal Procedure Code (“CPC”) on 29.9.2006. The statement shows that the appellant was renting the said house on 1.9.2006 for a rental of RM400.00. When the appellant failed to pay the sum, Bakar asked the appellant to vacate the house on 10.9.2006. The appellant asked for time until 13.9.2006. When Bakar returned on 13.9.2006, he discovered that the appellant had vacated the house.
 Also at the trial, on the application made by the prosecution and after hearing submissions, a statement of one Farok recorded under section 112 of the CPC was admitted under section 32 of the Evidence Act as exhibit P39. The statement of Farok was recorded on 2.10.2006 by PW17. Farok, a Burmese national, however was deported back to his country after serving his sentence for immigration and drug offences. According to P39, the appellant was in need of money and that the appellant had told Farok that he wanted to get cash from the deceased. The appellant called the deceased and when she turned up, the appellant asked her for some cash. The deceased said she had none. When the deceased entered the kitchen, the appellant asked Farok to give him a plastic bag which the appellant then used to cover the deceased’s head. The appellant asked Farok to tie the deceased’s hands with a nylon string. After half an hour, the appellant asked Farok to check if the deceased had died. When Farok told the appellant that she had died, the appellant took her handphone, some cash and her jewelleries. The appellant left to sell the jewelleries and came back with some cash. Farok was given RM300.00. They then disposed the body near a hill slope in Gelugor. We will say more about Farok’s statement later in this judgment.
 Upon his defence being called, the appellant elected to give sworn evidence. The appellant admitted that he knew the deceased. The appellant said he had to move from Bakar’s house at No 307-1, Jalan Dato Keramat as the appellant had some misunderstanding with him pertaining to the rental. This caused the appellant to move out from the said house on 13.9.2006.
 According to the appellant, Farok had previously borrowed money from him and had given him some jewelleries to be pawned as Farok had no documents. The appellant admitted pawning the jewelleries on two occasions but said that the first time Farok was waiting outside the shop. After receiving RM2,000.00, the appellant handed the money to Farok. Farok then paid the appellant the money he owed. The second time Farok was with him in the shop. Farok also gave him a handphone and asked the appellant to register it as Farok had no valid documents. The appellant also bought a sim-card for the handphone but Farok failed to collect the handphone so the appellant kept and used it. The appellant denied killing the deceased or instructing Farok to do so.
 Before us, learned counsel for the appellant argued that the learned trial judge erred in law and in fact when he decided that the prosecution had succeeded in proving a prima facie case against
the appellant at the end of the prosecution’s case. First and foremost, it has to be noted that the learned trial judge never discussed or commented in his judgment the various parts of the evidence adduced by the prosecution which the learned trial judge held made out a prima facie case against the appellant. On the contrary, the learned trial judge in his judgment discussed at some length the defence of the appellant. This is highly unsatisfactory. Reading the judgment of the learned trial judge, it appears to us to be indicative of an erroneous approach in determining the guilt of the appellant. It comes dangerously near to putting the burden on the appellant to establish his innocence. One thing is clear. The cardinal and fundamental principle in the administration of our criminal justice is that it is not for the appellant to prove his innocence, but it is for the prosecution to make out its case beyond all reasonable doubt. By virtue of section 180(1) of the CPC, when the case for the prosecution is concluded, the learned trial judge must consider whether the prosecution has made out a prima facie case against the accused. In accordance with the provisions of section 180(1) and (4) of the CPC, it is the duty of the learned trial judge to undertake a positive or maximum evaluation of the credibility and reliability of all the evidence adduced so as to determine whether each and essential ingredients of the offence
has been established, in order to make a finding whether or not the prosecution has made out a prima facie case against the accused. Whether such an undertaking has been carried out should be reflected in the judgment. Unfortunately, in the present case, the judgment of the learned trial judge did not indicate such an exercise had been carried out. In our view, this is a serious non-direction which amounts to a misdirection by the learned trial judge.
 In the present case, what is glaring is that the prosecution relied heavily on the written statement by Farok to prove that the deceased was killed by the appellant at his house at No 307-1, Jalan Dato Keramat. Needless to say, this statement has a very strong bearing in the way the learned trial judge viewed the prosecution’s case. It is against this backdrop, learned counsel argued that Farok’s statement was inadmissible for the reason that the conditions precedent for the application of section 32 of the Evidence Act 1950 had not been satisfied by the prosecution. Based on the facts of the case, we find there is merit in this argument.
 Under section 32 (i) of the Evidence Act, a statement made by a person who cannot be called as a witness is admissible in evidence, provided that:
the maker is dead;
(ii) the maker cannot be found;
(iii) the maker has become incapable of giving evidence; or
(iv) the attendance of the maker cannot be procured without an amount of delay or expense which is unreasonable in the circumstances of the case.
 It cannot be disputed that Farok is a material witness in the unfolding of the narrative of the prosecution’s case. In the context of the application of section 32, the question then arises whether Farok cannot be found or whether his attendance cannot be procured without an amount of delay or expense which is unreasonable in the circumstances of the case. It is quite important to note that Farok was arrested on 21.9.2006. His statement was recorded on 2.10.2006. He was then released to the relevant immigration authority for the purpose of repatriation to Burma on 3.1.2007. There is no evidence that Farouk is now dead. There is also no evidence that Farok cannot be found after reasonable effort has been made by the police in locating him. On the contrary, the non-production of Farok as a witness was as result of police
negligence as found by the learned trial judge in his judgment as follows:
“Di dalam soal ini, perlulah diakui bahawa ianya sememangnya wujud kecuaian yang amat ketara, baik di pihak Polis mahupun di pihak Imigresen, hatta oleh pihak Penjara sekalipun. Terdapat ‘communication break-down’ di antara satu Jabatan dengan Jabatan yang lain. Tidak terdapat koordinasi yang kukuh di antara sesama Jabatan, sehingga menyebabkan saksi yang amat penting seperti Farok ini ‘terlepas’ begitu sahaja, dan tidak sepatutnya, dengan begitu sahaja. Di sini dapat dilihat yang kurangnya inisiatif serta proaktif dan tiadanya tindakan bersepadu di pihak yang tertentu. ”
 The learned trial judge has made a finding that no reasonable effort has been made by the police in tracing or locating Farok. Yet, the learned trial judge held that Farok’s statement was admissible as can be seen at page 199 of the Appeal Record where the learned trial judge said:
“Keterangan dari Farokh Khan ini boleh diterima dan ditanda sebagai eksibit.
(i) Usaha-usaha tak dilakukan oleh pihak polis melalui I/O dan Inspektor Zulkefli.
(ii) Comment straight down dari Polls kepada Depo Imigresen adalah lebih berbentuk Pentadbiran. ”
 We do not agree. In our judgment, it was wrong and improper for the learned trial judge to admit the statement under section 32 of the Evidence Act. The conditions precedent under section 32 have not been satisfied and strictly proved. Police negligence or inadvertence is not a ground for admission of a statement under section 32 of the Evidence Act. A statement is only admissible under section 32 of the Evidence Act, if and only if, such statement has satisfied the conditions precedent as we have discussed earlier. The fulfilment of the conditions precedent under section 32 must be strictly proved by the prosecution. In the present case, the statement is therefore not admissible in evidence. Where evidence has been wrongly admitted, this will render the conviction unsafe unless we are satisfied that had the error not been made, the only reasonable and proper verdict would nevertheless have been one of guilty (see: Stirland v PP  A.C 315). We are of the view that the conviction was unsafe. We are not prepared to say that based on the facts, had the error not been made by the learned trial judge, the only reasonable and proper verdict would have been one of guilty of the appellant as per the murder charge.
 This leads on to the argument of learned counsel that the defence of the appellant had not received any, or any sufficient attention from the learned trial judge. It will be recalled that in his defence, the appellant said that he obtained the jewelleries and the handphone from Farok for the purposes mentioned by the appellant. In the absence of any denial or rebuttal from Farok, the learned trial judge ought to have considered the explanation given by the appellant as to how he had obtained the articles belonging to the deceased. A perusal of his judgment shows that the learned trial judge did not consider the appellant’s evidence in its proper context. In our judgment, this omission had seriously prejudiced the appellant. This was an error on a very crucial point directly relevant to the defence. It was the duty of the learned trial judge to consider that defence, no matter how weak or unreasonable the defence story may be (see: Ganapathy a/l Rengasamy v PP  2 MLJ 577 and Alcontara a/l Ambrose Anthony v PP  1 MLJ 209). In our view, this is a serious non-direction which amounts to a misdirection by the learned trial judge warranting appellate intervention (see: Gooi Loo Seng v PP  3 CLJ 1).
 Even though the evidence put forward by the prosecution concerning the recovery of the deceased’s belongings could raise a suspicion that the appellant was involved in the murder, benefit of the doubt must and should be given to the appellant based on the circumstances of this case. There may be an element of truth and suspicion in the prosecution case against the appellant. However, a suspicion is not evidence and cannot be made the basis for conviction of the appellant on the charge against him. The fairness of a trial according to law is not all one sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted (see: Ramli Kechik v Public Prosecutor  1 CLJ 308).
 Another point that must be mentioned here is that there is no physical evidence linking the deceased’s death to the appellant, in that there was no finger-print evidence and DNA evidence to link the appellant with the death of the deceased.
 The upshot of all this is that we were of the view that the appellant’s conviction was wholly unsafe. It is always a matter of regret that a cruel murder should go unpunished. Nonetheless, as in any other cases, this case must be judged based upon the weight
of available evidence and proper judicial appreciation of such evidence and that there should not be a miscarriage of justice. This appeal was, therefore, allowed. Accordingly, we quashed and set aside the conviction and sentence against the appellant. The appellant was acquitted and discharged.
Dated this day, 16th August 2013.
( DATO’ AZAHAR BIN MOHAMED )
Court of Appeal
For the Appellant : Chong Joo Tian
Tetuan JT Chong Associates
For the Respondent : Nurulhuda Nur’aini bt Mohd Nor
Deputy Public Prosecutor Attorney General’s Chambers