IN THE COURT OF APPEAL OF MALAYSIA SITTING AT KUCHING, SARAWAK CRIMINAL APPEAL NO: Q-05 (M) 182-07/2015
RICKY LING BETWEEN APPELLANT AND
PUBLIC PROSECUTOR RESPONDENT
[In the Matter of High Court of Sabah and Sarawak at Sibu Criminal Trial No. 45-3-2010 Between
1. Anvan Anak Lanau And First Accused
2. Ugah Anak Mangie Second Accused
3. Ricky Ling Third Accused]
TENGKU MAIMUN BINTI TUAN MAT, HMR DR. BADARIAH BINTI SAHAMID, HMR KAMARDIN BIN HASHIM, HMR
 The appellant was charged for an offence under section 302 of the Penal Code together with two other accused ( Anvan anak Lanau and Ugah anak Mangie, the 1st and 2nd accused respectively). The charge against them reads:
“Bahawa kamu bersama-sama pada tarikh 19.7.2009 jam lebih kurang 8.30 malam di rumah kongsi, tapak pembinaan hadapan Pusat Memandu, Batu 5, Jalan Oya, di dalam daerah Sibu, di dalam Negeri Sarawak, bagi mencapai niat bersama kamu semua telah melakukan bunuh ke atas ALAMGIR HOSSAIN (Warganegara Bangladesh, No. Passport: B0587429) dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan dan dibaca bersama seksyen 34 Kanun yang sama.”
 At the close of the prosecution case, the learned trial judge held there was a dire lack of evidence against the 1st and the 2nd accused and they were accordingly acquitted and discharged.
 In respect of the appellant, the 3rd accused at the court below, the learned trial judge found the prosecution had adduced sufficient credible evidence to establish all the essential elements of the charge and had made out a prima facie case against the appellant. The appellant was called upon to enter his defence on the said charge.
 The appellant had given evidence on oath. After considering his defence, the learned trial judge had convicted him on the said charge. As the appellant was a minor (17 years and 8 months at the time of the commission of the offence), he
was ordered to be detained in the Sibu prison at the pleasure of the Yang di- Pertua Negeri of the State of Sarawak under section 97(2) of the Child Act.
 The appellant has appealed against his conviction. There is no appeal by the prosecution in respect of the acquittal and discharge of the 1st and 2nd accused persons.
The Prosecution’s Case
 On the night of 19.07.2009, while the deceased was in his room with Shi Zhong Hui (PW14) watching television, two men entered the room and shouted the deceased’s name. The two men hit the deceased with helmets .About ten minutes later another man wearing a mask entered the room and also hit the deceased with a helmet. PW14 just sat on the bed in the room out of fear.
 The deceased then ran out of the room, followed by the three men. PW14 stayed in the room but he could hear the sound of the deceased crying out in pain. The deceased then returned to the room. One of the three men threatened PW14 by grabbing his shirt and uttered something which PW14 did not understand. The same man also put a finger to his lips in a gesture that warned PW14 not to say anything. After that, all three men left on their motorcycles.
 PW14 then called his employer PW10 to report the incident. PW10 came to see the deceased’s condition. PW10 wanted to take the deceased to hospital but the deceased refused. At around 11.00 pm, PW10 received a call from his worker PW11 about the deceased’s worsening condition and PW11 had taken the deceased to the hospital.
 The deceased died on 28.09.2009. The pathologist (PW17) stated the cause of death to be “Intracranial haemorrhage due to blunt head injuries”.
 PW14 had attended an identification parade conducted by PW9. PW14 had identified the appellant as one of the assailants and the man who had threatened him. PW14 had again identified the appellant in court although he said the appellant appeared thinner at the identification parade.
 The prosecution must prove the following essential elements of the offence:
(a) that the victim is dead;
(b) that the victim died as a result of the injuries sustained by him;
(c) that the injuries of the victim were caused or were the result of the act of the appellant;
(d) that in inflicting the injuries upon the victim, the appellant either :
(i) caused them with the intention of causing death; or
(ii) caused them with the intention of causing such bodily injuries as the appellant knew to be likely to cause death;
or (iii) caused them with the intention of causing bodily injuries and such bodily injuries were sufficient in the ordinary course of nature to cause death.
Findings of the Trial Judge
 At the conclusion of the prosecution’s case, the trial judge found there was not an iota of evidence to implicate the 1st and 2nd accused with the murder of the deceased. Accordingly, her ladyship ordered the 1st and 2nd accused to be discharged and acquitted of the charge preferred against them.
 In respect of the appellant, the learned trial judge was satisfied that the prosecution has adduced sufficient credible evidence to make out a prima facie case against the appellant. The learned trial judge ordered the appellant to enter his defence.
The Defence Case
 The defence of the appellant can be summarised as follows:
(1) The appellant admitted that at the material night, he was at the construction site drinking with some friends. A quarrel had broken out which developed into a fight. He said he did not know who were involved in the fight as he was drunk. He denied being involved in the fight and had tried to stop it. When he was attacked, he ran away home.
(2) The appellant denied that he had entered the deceased’s room to assault the deceased .He did not see what happened in the deceased’s room. He did not see the deceased running out of the room. He denied chasing after the deceased.
Findings of the Trial Judge
 At the conclusion of the trial, the trial judge found that the defence of the appellant were bare denials and fell short of raising a reasonable doubt on the prosecution case.
 The trial judge found that PW14 had made a positive identification of the appellant, in the identification parade as well as in the dock. The evidence of PW14 and PW9 pertaining to the identification parade, was not at any time challenged by the appellant.
 The prosecution had adduced sufficient credible evidence to establish all the essential ingredients of the charge. Since the appellant was 17 years and 8 months old at the time of the commission of the offence, he was in law, a child. Accordingly, pursuant to section 97(2) of the Child Act, the appellant was ordered to be detained in the Sibu Prison at the pleasure of the Yang di- Pertua Negeri of the State of Sarawak.
 The appellant has appealed against his conviction by the learned trial judge.
 Although the petition of appeal contains several grounds of appeal, before us, learned counsel for the appellant canvassed the following two primary grounds:
(1) That the prosecution had failed to prove the substantive cause of death or that the injuries sustained by the deceased was sufficient in the ordinary cause of nature to cause the death of the deceased.
(2) There were doubts in respect of the identification of the appellant as the person who had attacked and inflicted the fatal injuries to the deceased.
On the above-mentioned grounds, counsel for the appellant submitted that the conviction of the appellant was unsafe and should be set aside and the appellant be discharged and acquitted of the offence of murder under section 302 of the Penal Code.
First Issue: The Substantive Cause of Death of the Deceased
 The first issue raised by counsel for the appellant is that there is doubt as to the substantive cause of death of the deceased due to the possibility that subsequent to the assault, the deceased had suffered a fall from his bed. It was contended that the fall could have been the fatal injury that caused the death of the deceased. The fatal injuries could also be attributed to other causes.
 The pathologist, PW17 ( Dr. Jamil bin Dolkadir @ Abdul Kadir) could not positively confirm the fatal blow. In cross examination, PW17 had been asked, if there was a fall from the bed with the head down, would the fall have caused injury on the vortex area, and PW17‘s answer was that it was possible. (At p. 191 of the Appeal Record Vol. 1). PW17 had also agreed with counsel for the appellant that the injuries referred to as Injuries No. 1,2 and 5 of “External Examination” in the Autopsy Report, could also have been sustained from a fall from a drain while the deceased was running. The injuries were referred to as hematoma below the skin over the right lower ribs. (At p. 192 of the Appeal Record Vol.1).
 Further, to a question by counsel for the appellant whether the injuries sustained by the deceased were consistent with several impacts to the head, PW17 had replied that the injuries would be consistent with (1) a fall from a drain, (2) attack with a crash helmet and (3) fall from a bed, PW17 had agreed with the suggestion by learned counsel for the appellant that all three abovementioned could have happened.
 In the re-examination of PW17, the Deputy Public Prosecutor (DPP) had asked PW17 for his opinion that from the impact points seen on the deceased, which was likely to be the fatal blow. PW17 had stated that he could not proffer an opinion,
apart from what was said previously. (At p. 195 of the Appeal Record Vol. 1).
Second Issue: Insufficient Identification of the Appellant
 The second issue raised by counsel for the appellant was that the appellant had not been sufficiently identified by PW14 (who had witnessed the incident), as the person who had caused the death of the deceased. An Identification Parade (ID parade) was held about one month after the incident. In re-examination, when it was put to PW14 that he could be mistaken, PW14 had replied that as it had been quite some time since the incident, he could not be sure. (At p. 141 of the Appeal Record Vol. 1).
 PW14 had also testified that before the ID parade, he saw three persons outside the room. However, when asked to identify the appellant from the dock, PW14 testified that he was not sure if the person he had identified in the ID parade was the same one in the dock as the one whom he identified in the ID parade “was a bit skinny”. (At p. 115 – 116 of the Appeal Record of Vol. 1).
Our Findings and Decision
 After careful consideration of parties’ oral and written submissions as well as the Appeal Records, we were unanimous in our view that the conviction against the appellant was safe. In the circumstances, we dismissed the appeal. We affirmed the conviction and sentence by the High Court. We state our reasons below.
Substantive Cause of Death
 The Pathologist, PW17 was asked a direct question as to what was the cause of death of the deceased, PW17’s answer:
“It was intracranial haemorrhage due to blunt head injuries”.
When PW17 was referred to P17 which show photographs of injuries under the heading of the ‘Central Nervous System’, and the question was asked as to what could have caused the abovementioned injuries, PW 17 had answered the following:”
“Blunt objects, for example, round wood or round metal”
To the further question as to whether crash helmet would be considered as a blunt object, PW17 had answered in the affirmative. (Refer to p. 188-189 of the Appeal Record Vol. 1).
 As to the contention that PW17 was uncertain of the cause of death, the testimony of PW17 at cross-examination and reexamination does not lend credible doubt as to the cause of death. The counsel for the appellant had suggested to PW17 that the fatal injury sustained by the deceased could have been caused by other causes, such as a fall from a drain while running or fall from the bed. While P17 had agreed to both possibilities, he had qualified his answer by stating that the multiple impacts on the head were not consistent with just a fall. (Refer to p. 193 of the Appeal Record Vol.1).
 Further, to a direct question as to whether the intracranial haemorrhage is consistent with a fall from a higher ground with the head hitting a hard ground, PW17’s answer was that:
“It is unlikely because there was also hematoma at vertex area i.e. middle of the head.”
To a further question as to whether if there was a fall from the bed with head down, would this cause injury to the vertex area?
PW 17 had testified as follows:
“It is possible but unlikely because if it is a fall just from the bed, normally it does not cause intracranial haemorrhage on vertex area.” (Refer to p. 190-191 of Appeal Relord Vol. 1).
 The contention of counsel for the appellant that the possible cause of death could be a fall on the drain while running or a fall from a bed is at best speculative as neither possibility is supported by evidence of its occurrence. However, there is overwhelming evidence that the deceased was beaten on the head repeatedly by crash helmets by three assailants, including the appellant. PW17 had agreed that the fatal injury could have been caused by a round hard metal object such as a helmet.
 Thus, the learned trial judge was correct in her finding that the substantive cause of death: “intracranial haemorrhage due to blunt head injuries”, was attributable to the deceased being beaten by helmets by three men, including the appellant.
Identification of the Appellant
 We are satisfied that the appellant was sufficiently identified by PW14 who had witnessed the incident and came face to face with the appellant at close quarters during the incident. First, PW 14 had testified that he was able to identify the appellant because during the incident the appellant was holding PW14’s shirt and he was very close to PW14. The appellant had also showed his fist to PW14, uttered some words and put his finger to his lips as a warning gesture to PW14 not to say anything. Second, PW14 had also testified that at the material time the room was lit by a fluorescent tube light.
 While counsel for the appellant has sought to cast doubts on PW14’s positive identification of the appellant at the ID parade as well as when the appellant was in the dock, a perusal
of the Notes of Proceedings as well as the trial judge’s Grounds of Judgment demonstrate that her ladyship had evaluated the evidence before her and was correct to arrive at the finding that PW14 had positively identified the appellant as the perpetrator.
 Inspector Heng Kok How (PW9) was the police officer in charge of the ID parade. PW9 gave evidence on the conduct of the ID parade and identification of the appellant by PW14.PW9 testified that no photograph, picture or any description of the appellant was shown to PW14 before the ID parade was conducted. Neither did PW14 see the appellant before the parade.PW9 was not cross examined by the appellant’s counsel.
 PW14 had identified the appellant at an ID parade about a month after the incident. When PW14 was cross examined whether it was reasonably possible that PW14 could have mistakenly identified the appellant at the ID parade, PW14 had replied “Impossible”.
 The counsel for the appellant had raised the issue that PW14 had expressed doubts that the appellant in the dock is the same person PW14 had identified at the ID parade. In her Grounds of Judgment, the learned trial judge had referred to this as follows: (Refer to para. 61)
“At the trial PW14 identified the 3rd Accused in the dock as the assailant whom he had identified in the identification parade. He added that his appearance seemed to have changed; the one whom he identified in the identification parade was thinner”.
 The learned trial judge did not find the change in the description of the appellant abovementioned by PW14 to be material as to affect the positive identification of the appellant, and rightly so. More than a year had passed between the conduct of the ID parade and the trial. The change in description was not in respect of the identifiable facial features, but a difference in weight as the person identified by PW 14 in the ID
parade “was a bit skinny” when compared to his appearance more than a year later in the dock. The difference in appearance caused by a an increase or a decrease in weight after more than a year in prison is in the circumstances, nothing unusual.
 The learned trial judge was therefore correct to conclude: (at para. 63) that, “the combined evidence of PW9 and PW14 amply show that the person whom PW14 had identified in the identification parade was the third accused”.
 In conclusion, we are of the considered opinion that on the facts and evidence adduced, the conviction of the appellant by the learned trial judge was safe. We therefore affirm the conviction and sentence of the High Court.
DR. BADARIAH BINTI SAHAMID JUDGE OF COURT OF APPEAL
19 JULY 2017
On behalf of Appellant:
On behalf of Respondent:
Timbalan Pendakwa Raya Jabatan Peguam Negara PUTRAJAYA