IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION)
COURT OF APPEAL CRIMINAL APPEAL NO. Q-05-117-2007
(1) PETER AK MERUPI @ MANSOR BIN ABDULLAH … APPELLANTS
(2) ZEN BIN ALI
(IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING CRIMINAL TRIAL NO. 45-05-2005-II
PUBLIC PROSECUTOR VERSUS
(1) PETER AK MERUPI @ MANSOR BIN ABDULLAH
(2) ZEN BIN ALI)
LOW HOP BING, JCA
SYED AHMAD HELMY BIN SYED AHMAD, JCA MOHAMED APANDI BIN ALI, JCA
GROUNDS OF JUDGMENT
(Judgment of the Court)
The appellants were jointly charged with murder under section 302 of the Penal Code. Both of them were found guilty and convicted and sentenced to death by the learned judge of the High Court. The charge against them reads as follows:-
“That you, jointly, with one other still at large, on the 16th day of November, 2004, at about 7:30 p.m. at a spot on the grass verge near the State Library, Petra Jaya, Kuching, in the state of Sarawak, in furtherance of the common intention of you all, committed murder by causing the death of MAZLAN BIN SAPIEE (M), 22 years old, and you thereby committed an offence punishable under section 302 of the Penal Code read with section 34 of the same code”.
Dissatisfied with the decision of the High Court, the appellants filed their appeal to this Court. The appeal was dismissed on 29/6/2010 whereby the convictions and sentences by the High Court were affirmed. We now give our reasons for our unanimous decision in dismissing the appeal.
The Notice of Appeal
Before proceeding with the merits of the appeal, we have to note our observation that the Notices of Appeal filed by the appellants were actually against sentence only! (refer pages 346 – 347 of the Appeal Records). The forms that were used to file the said Notices of
Appeal are the normal Form 5 in the First Schedule to Rules of the Court of Appeal 1994. We also note that since the two appellants were convicted and sentenced to death, at the material time of filing the Notice of Appeal, both of them were in prison. Under such circumstances, it would be more appropriate to file such notice of appeal, by using Form 6, as provided for under Rule 59(2) Rules of the Court of Appeal 1994. To our mind, the officer in charge of the prison ought to have explained to both appellants of their rights to appeal against conviction and sentence particularly in cases that carried capital punishment. It is beyond comprehension for any convicted person who has been sentenced with a sole mandatory sentence of death for an offence under section 302 of the Penal Code to be appealing against sentence only. This indeed is an absurd situation.
Bearing in mind that absurdity, of which the appellants may be blameless, we feel that there will be a miscarriage of justice, if we were to apply our minds solely on the issue of sentence. We shall not be blinkered by such technicalities. No doubt it would have been easier for us. But common sense prevailed, and we proceeded to hear the appeals on the basis that they were appeals against conviction and sentence.
Facts of the Case
The facts of the case as unfolded from the evidence of prosecution witnesses are as follows:-
On the late evening of 16th November 2004 Mazlan bin Sapiee (the deceased), a young man of 22 years old, went out for on outing with his girlfriend, Dayang Khairulnisa bt Nasron (PW.4). It was the 3rd day of Hari Raya and both of them were dressed for the occasion. Prior to that they visited mutual friends and relatives. They went about on a motorcycle ridden by Mazlan. For their outing on that fateful day and time, they went to the vicinity of the Sarawak State Library, a serene place, favoured by joggers for its green and hilly terrain with shady trees.
At that place, Dayang Khairulnisa (PW.4) suddenly felt that she was assaulted from behind. She fell and lost her consciousness. Moments later, upon regaining consciousness, she found that she was covered under a heap of leaves. She started looking for Mazlan and found him nearby, also covered under a heap of leaves. As Dayang Khairulnisa (PW.4) tried to move Mazlan she was again assaulted. The assailant was a man. The assailant robbed her of her ring and stripped her and carried her on his shoulders to some distance away and upon putting her down on the grass, he tried to rape her. Dayang Kharulnisa resisted the attempts and in the course of the struggle, she tried to wrestle away a stick that was in the hands of the assailant. Due to her persistent resistance, the man then left her and escaped on a motorcycle.
Dayang Khairulnisa then managed to crawl and walk towards the main road, to get help. A woman who saw her walking in an
unsteady manner, stopped to help. This woman, Rosmaizah Bte Roslan (PW.3) turned out to be Dayang Khairulnisa’s friend. Dayang Khairulnisa (PW.4) related to Rosmaizah (PW.3) what happened to her and her boyfriend. Rosmaizah took Dayang Khairulnisa to the Sarawak General Hospital. And before she was wheeled into the Emergency Room Dayang Khairulnisa gave Rosmaizah a telephone number for her to contact to inform of the incident.
Rosmaizah then called the number and informed the person at the end of the line as to what had happened to Dayang Khairulnisa and Mazlan. The person at the end of the line is Mazlan’s father, Sapiee Bin Suip (PW.2). Upon being so informed of the incident, Sapiee (PW.2) quickly lodged a police report vide Gita Report No. 5760/04 (exhibit P7). As a concerned father, Sapiee than went to look for his son at the vicinity of the State Library. This was about 9.45 pm. Upon failing to find him there, he proceeded to the Hospital to see Dayang Khairulnisa. After seeing Dayang Khairulnisa, PW.2 once again went to look for his son. After searching for about hour PW.2 found his son, Mazlan. Mazlan was found dead within the grounds of the Sarawak State Library, lying in a position, with his face facing the ground. Sapiee (PW.2) then lodged another police report, vide Gita Report No. 5761/04 (exhibit P8).
The police arrived at the scene of crime, soon after PW.2 found the body of his son, Mazlan. The police then cordoned the area and police investigations, led by ASP Bond Lian Min (PW.8) commenced.
The body of Mazlan Bin Sapiee was sent to the General Hospital for a post-mortem. Dr. Jamil Bin Kolkadir (PW.10) conducted the postmortem on the 18th November 2004. PW.10 concluded that the
cause of death was bilateral subdural and subarachnoid haemorrhage with fracture of skull due to blunt object.
In the course of police investigations, an identification parade was conducted by Insp. Fauzan Bin Abu Kassim (PW.5). This was conducted on 3/12/2004, about 2 weeks after the murder incident. At the identification parade, Dayang Khairulnisa (PW.4) identified Peter Merupi (the 1st appellant) as the man who assaulted, robbed and tried to rape her on that evening of 16/11/2004 at the vicinity of the Sarawak State Library. In her evidence, PW.4 also identified a stick (exhibit P34A) as the one that she was struggling with, in her attempts to take it away from her assailant, Peter Merupi (the 1st appellant). It was revealed that the stick (P34A) was recovered from the house of Zen Bin Ali (the 2nd appellant) in the course of police investigations, on 10/12/2004. The stick was recovered in the presence of the two appellants, when the house was searched by C/Insp. Solinient Nyian (PW.9).
Findings At the End of Prosecution’s Case
At the end of the case for the prosecution, the learned trial Judge made a ruling that pursuant to the provisions of section 180 of the Criminal Procedure Code a prima facie case has been made out
against both appellants on the charge preferred against them and accordingly they were directed to enter their defence.
Upon perusal of the Appeal Records, including the grounds of Judgment, it is clear that the learned trial judge has religiously followed what was required of her pursuant to section 180 of the Criminal Procedure Code. The trial Judge had laboured over the evidence adduced by the prosecution and had adopted the correct approach when she referred to and relied on the authorities of PP v. Mohd. Radzi bin Abu Bakar  6 AMR 203; Looi Kow Chai & Anor v. PP  2 AMR 89; and Balachandran v. PP  1 CLJ 85.
The learned trial Judge had also correctly identified the essential ingredients of the offence under section 302 of the Penal Code. Having so identified the essential ingredients, the trial Judge had analysed all the evidence of the prosecution witnesses. This can be seen from her Grounds of Judgment (from pages 3 to 23 of the Appeal Record).
On the elements of common intention, under section 34 of the Penal Code, the trial Judge in evaluating the evidence, had correctly relied on the principles as enunciated in the Court of Appeal case of Lee Kwai Heong & Anor v. PP  1 CLJ 1043.
In this case, the 2nd appellant had given a Notice of Alibi under section 402A of the Criminal Procedure Code. It was dated 30/5/2006, well before the commencement of the trial on 16/6/2006. However the prosecution had successfully demolished such defence, by calling Zaiton Bte Bujang (PW.11). PW.11 is the second wife of the 2nd appellant. The trial Judge had evaluated the evidence of PW.11 and from evidence adduced had rightly dismissed the defence of alibi.
Findings At the End of the Trial
Both appellants elected to give evidence on oath. The 1st appellant came up with a bizarre story. He testified that on that day, there were three of them who went to the vicinity of the State Library. He was accompanied by one Edwin and the 2nd appellant. He told the court that while on a hill within the vicinity of the State Library, the 2nd appellant had administered drugs upon himself. After about half hour, the 2nd appellant took out a stick (identified by the 1st appellant as exhibit P34A) from his motorcycle and went down the hill. The 1st appellant and Edwin was then, still on the hill. Both of them then heard a lady’s voice calling for help. Both of them went down the hill and saw the 2nd appellant in the act of hitting (assaulting) a man with the stick (exhibit P34A). The 2nd appellant then ran away and rode on his motorcycle. Both of them, the 1 appellant and Edwin then followed suit.
The 2nd appellant, in his evidence, denied the story as narrated by the 1st appellant. He denied being together with the 1st appellant on the day and time and place of the incident. He could not give any reason as to why the 1st appellant was accusing him of assaulting the deceased. He admitted that the stick (exhibit P34A) was his, and that it was recovered from his house.
At the end of the trial, the learned trial Judge had followed what was required of her, pursuant to section 182A of the Criminal Procedure Code. She wrote, in her grounds as follows:-
“At the close of the defence case, on the totality of the evidence, I find that the 1st Accused and the 2nd Accused have failed to raise a reasonable doubt on the Prosecution’s case and that the Prosecution has proved its case against both the Accused beyond reasonable doubt. In the circumstances, I find the 1s Accused and the 2nd Accused guilty and convict them as charged. I hereby impose the only sentence provided by the law i.e. sentence the 1st Accused and the 2nd Accused to death and they are to be hung by the neck till they are dead.”
Upon perusal of the Appeal Records and upon hearing submissions by both parties, we find that this case evolved over factual matters. It is also clear that the finding of fact made by the trial judge turned solely on the credibility of witnesses. There is not much of legal issues involved in this appeal. It is trite law that an appellate court should be very slow in disturbing the findings of the
trial judge. On this well established principle, it is suffice to cite a few cases such as:-
Lai Kim Hon & Ors v. PP  1 MLJ 84;
Lee Ah Seng & Anor v. PP  6 MLJ 1.
However for completeness, we have to state that upon evaluation of the evidence, we also conclude that the appellants had jointly committed the offence of murder. We use the very same words used by Lord Chief Justice (Malaya) Raja Azlan Shah (as he then was) in Tham Kai Yau & Ors v. PP  1 MLJ 174:-
“In the present appeal we think that in view of the nature of the injuries sustained by the deceased and the time and place of the incident, there was evidence of intention on the part of the appellants to cause bodily injury to the deceased”.
The cause of death in this appeal, as explained by the pathologist is:-
“Bilateral subdural and subarachnoid haemorrhage with fracture of skull due to blunt object.”
Any assailant, who assaulted the victim with a blunt object (like exhibit P34A) at the back of the head, must have had the intention to cause bodily injury to that victim. And when the assault was done with such a great force that caused fracture of the skull, surely it was done with the knowledge and intention to cause such a bodily injury that is sufficient in the ordinary course of nature to cause death. Alternatively the assailant knew that such an act (of hitting at the back
of the head) is imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and it was done without any excuse.
Any human being is aware that the neck and head area is a vulnerable part of the body and that any injury to that part of the body would have been fatal.
The injuries suffered by the deceased and the manner the injuries were caused in this case, fall within the 3rd and 4th limbs of section 300 of the Penal Code.
Last, but not least, common intention has been proved by the fact that the weapon used in the commission of the murder (the stick, exhibit P34A) was the very one identified by PW.4 and subsequently by the 1st appellant; and it was recovered from the house of the 2nd appellant.
The defence by both appellants has been bare denials. Such denials when tested with the evidence as a whole and without any other proof are insufficient to raise any reasonable doubt upon the prosecution’s case. Instead of casting any reasonable doubt, the 1st appellant’s story of blaming the 2nd appellant for the crime, further cemented the prosecution’s case.
From the totality of the evidence, we are satisfied that at the end of the trial, the prosecution had proven it’s case beyond reasonable doubt. As the finding of the trial court depended on an assessment of the credibility and reliability of the victim witness, it is not the practice of the Appeal Court to refuse to accept it.
There is therefore no reason for us to disturb the High Court’s finding. We have no difficulty in dismissing the appeals by the appellants. The convictions and sentences by the High Court are affirmed.
DATO’ HAJI MOHAMED APANDI BIN HAJI ALI
Court of Appeal Malaysia
Dated this 6th day of October 2010
Counsel for the Appellant:-
Mr Wit Malang for the 1st Appellant Mr Ignatius Melaka Nisau for the 2nd Appellant .. M/s Wit & Co Advocates Lot 6678, No. 13th Floor Bangunan Dirgahayu Jalan Batu Lintang 93200 Kuching, Sarawak
Counsel for the Respondent:-
DPP Awang Armadajaya bin Awang Mahmud … Jabatan Peguam Negara
Bahagian Perbicaraan & Rayuan Aras 5, No. 45, Lot 4G7 Presint 4, Persiaran Perdana 62100 Putrajaya
Cases referred to:-
1. PP v. Mohd. Radzi bin Abu Bakar  6 AMR 203
2. Looi Kow Chai & Anor v. PP  2 AMR 89
3. Balachandran v. PP  1 CLJ 85
4. Lee Kwai Heong & Anor v. PP  1 CLJ 1043
5. Lai Kim Hon & Ors v. PP  1 MLJ 84
6. Lee Ah Seng & Anor v. PP  6 MLJ 1
7. Tham Kai Yau & Ors v. PP  1 MLJ 174
Legislation referred to:-
1. Penal Code
2. Rules of the Court of Appeal 1994
3. Criminal Procedure Code