Roslan Bin Husain V Pendakwa Raya


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(Perbicaraan Jenayah Pulau Pinang No.: 45-7-2009)
















Abu Samah Nordin, JCA Azahar Mohamed, JCA Mohd Zawawi Salleh, JCA






The Antecedents


[1] This is an appeal against the judgment of the High Court Penang dated 19.11.2010, convicting the appellant on one count of the offence of murder under section 302 of the Penal Code, for which he was sentenced to death.


[2] The charge against the appellant reads as follow:


“Bahawa kamu pada 23 Mac 2008 jam lebih kurang 8.45 malam, di Jalan Mini Tar yang berhampiran gudang “Mighty Noble”, di Kampung Air Hitam, Sungai Dua, di dalam Daerah Seberang Perai Utara, di dalam Negeri Pulau Pinang, telah membunuh seorang lelaki Melayu bernama Jasni bin Hamid (No. K/P: 580810-02-5077).


Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan. ”


[3] The appellant appeals against his conviction and sentence. Having considered the evidence and submissions of both parties, we found no merits in this appeal. We dismissed the appeal and affirmed the conviction and sentence imposed by the High Court.




Brief Facts


[4] The facts of the case, as culled from the Appeal Records, may be summarised thus: on 23.3.2008, at around 9.00 p.m., Mohd Soffie bin Mohd Zaki (PW7) heard a screaming sound. He went out of his house and saw a flickering light from a distance of 200 metres from the house, the spot from where the noise apparently came.


[5] PW7 proceeded to a tarred pathway, which cuts across a paddy field. He met Rosman bin Din (PW8) who was walking along the pathway.


[6] Both PW7 and PW8 then found a motorcycle which had fallen on the ground. The flickering light apparently came from the motorcycle’s indicator.


[7] Both men switched on the motorcycle’s headlamp and directed the light towards the paddy field. They saw the deceased in a sitting position, where the lower part of his body was submerged in the water of the paddy field.




[8] They approached the deceased and noticed the latter was grievously hurt. PW7 ran off to a nearby mosque to seek help while PW8 stayed with the deceased.


[9] PW8 asked the deceased who did this to him, in which the deceased answered “Lan Chin Gula”. Lan Chin Gula was the Appellant’s nickname.


[10] PW8 then proceeded to Hassan bin Saad’s (PW9) house and told him that the deceased was in need of help. Both men returned to the scene to tend to the deceased.


[11] At that point of time, the deceased was lying sprawled on the edge of the tarred pathway. The deceased told PW8 that the money kept inside his motorcycle basket was to be given to his wife. PW8 later found that there was no such money in the motorcycle basket.


[12] The villagers who arrived with Mat Sapak bin Adam (PW10) carried the deceased to a car and rushed him to the Seberang Jaya Hospital.


[13] The deceased was pronounced dead upon arrival at the hospital. Autopsy on the deceased’s body was performed by Dr




Bhupinder Singh (PW13). The pathologist confirmed that the deceased’s death was a result of multiple slash wounds.


[14] The appellant was later arrested at his house. A sum of RM9000 was found under the Appellant’s bed. The Appellant then led Superintendent Hj Mohamad Sukri bin Awang (PW16) and a few other policemen to a spot not far from his house where a ‘parang’ was found.


[15] At the close of the prosecution’s case the appellant was called to enter his defence.


[16] During the defence case, the appellant gave a statement from the dock and he did not call other witnesses. The learned trial judge, after an exhaustive review of the evidence, found the appellant guilty beyond reasonable doubt of the offence charged and accordingly, as stated above, sentenced him to death.


Grounds of Appeal


[17] Before us, the appellant raised several grounds to impugn the learned trial judge’s decision. We have taken the liberty to consolidate them under 3 main headings as follows:




(a) The learned trial judge had misdirected himself when his Lordship failed to rule that there was a break in the chain of evidence relating to the blood specimen taken from the appellant and the deceased;


(b) The learned trial judge had misdirected himself when his Lordship failed to consider that there was no connection between the ‘parang’ and the appellant; and


(c) The learned trial judge had misdirected himself when his Lordship admitted the dying declaration in isolation without considering the entire surrounding circumstances under which the deceased made the statement.


[18] We will consider the issues raised by the appellant in turn. Ground (a): The chain of evidence of the blood specimen taken


[19] It is not disputed that the FTA card stained in blood specimen with a label bearing the deceased’s name (exhibit P69A) and a plastic tube containing blood specimen with a label bearing




the appellant’s name (exhibit P67A) were sent to the chemist, Erizasyira binti Basri (PW23), for analysis.


[20] Learned counsel’s main complaint on this issue is that the learned trial judge erred when his Lordship failed to rule that there was a break in the chain of evidence of the blood specimens taken. The case Tay Kok Wah v PP [2012] 3 AMR 347 was cited in support of his contention.


[21] With respect, the facts in Tay Kok Wah (supra) are far cry from the case in hand. In that case, the blood samples were taken by 3 different doctors and they were not identified. Further, there was also no evidence as to the movement of the blood samples from the moment they were taken by the unidentified doctors to the point when they were handed over to the investigation officer.


[22] In the present case, in the report (exhibit P21) prepared by the pathologist, PW13 clearly confirmed that he collected the deceased’s blood specimen in the form of FTA card for DNA profiling and gave it to the police officer. ASP Norhayati binti Ahmad (PW4) also testified that she received the specimen from PW13.




[23] PW4 further testified that the appellant was taken to Hospital Seberang Jaya and Dr Mohd Shahir bin Mohd Hassan attended to the appellant. The appellant’s blood specimen (exhibit P67A) was handed over to PW4. PW4 testified that she sent 30 items (including exhibit P67A and exhibit P69A) to PW23.


[24] The movement of the blood specimens were clearly explained. Dr. Shahir bin Mohd Hassan was also offered to the defence at the close of prosecution’s case.


[25] Therefore, it is our finding that there is no infirmity in the collection of the appellant’s and the deceased’s blood specimens. This ground of appeal is bereft of merit.


Ground (b): Recovery of the parang


[26] The second ground of appeal relates to the recovery of P47A, the ‘parang’, from a spot near the appellant’s house pursuant to the information given by the appellant to PW16 which was recorded by him in Laporan Polis Sg. Dua 662/08 (ID29).


[27] The learned trial judge had concluded that both the oral evidence of the information given by the appellant to PW16 and the record of the information in ID29 were inadmissible under




section 27 of the Evidence Act 1950 as the threshold under that


section is not circumvented.


[28] We are of the opinion that quite distinct and apart from section 27 of the Evidence Act 1950, the appellant’s conduct in leading PW 16 to the discovery of ‘parang’ is relevant under section 8(2) of the Evidence Act 1950.


[29] Authorities on this proposition of law are legion. For the purpose of this judgment, we would like to refer to the case of Amathevelli Ramasamy v PP [2009] 3 CLJ 109, wherein Arifin Zakaria CJ (Malaya) (as His Lordship then was) had this to say:


“As Chinnappa Reddy J said in Prakash Chand v State AIR SC 400 at p.404:


The evidence of the circumstances, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapon which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously will or antecedent to such conduct falls within the purview of section 27 of the Evidence Act (vide




Himachal Pradesh Administration v Om Prakash AIR [1972] SC 975).”


[See also Bala Matik v PP [2006] 3 MLJ 516]]


[30] The learned trial judge had indeed appraised the appellant’s conduct and found them to be relevant and admissible under section 8(2) of the Evidence Act 1950. PW 23 confirmed that the blood stain found on the ‘parang’ contained the deceased’s DNA. The blood specimen found on the handle of the appellant’s motorcycle also contained mixed DNA of both the appellant and the deceased. All the above cumulatively connect the appellant to the murder of the deceased.


[31] The inferences drawn from the evidence of conduct of the appellant remain unrebutted as the appellant has not explained them pursuant to section 9 of the Evidence Act. As Augustine Paul FCJ said in the judgment of Parian bin Dadeh v Public Prosecutor [2009] 1 CLJ 717:


“If the explanation is accepted by the Court then the inference arising from the conduct is rebutted. If it is not accepted or if the accused does not explain his conduct the inference remains unrebutted. ”.




[32] It is clear, therefore, that the act of pointing out the ‘parang’ by the appellant is one of the circumstances which linked him with the offence charged.


Ground (c): The admissibility of the dying declaration


[33] Learned counsel for the appellant challenges the admissibility of the dying declaration made by the deceased to PW8 on the ground that PW8 failed to disclose it to anyone at the earliest available opportunity.


[34] PW8’s testimony of his encounters with the deceased merits reproduction as follows:


“Saya tanya pada Awang, ‘Hang pasai apa? Jatuh motor ka?! Tetapi mangsa menyatakan kepada saya beliau diserang dan ditetak. Saya tanya pada mangsa, ‘siapa yang buat?’ Dia kata ‘Lan Chin Gula, Lan Chin Gula’, sebanyak 2 kali.


Saya tanya kepada mangsa – ‘Hang jangan main-main – ini kes polis’. Mangsa tetap kata yang ‘Lan Chin Gula tetak aku’. Seterusnya saya kata ‘Hang tunggu sat, aku nak pergi panggil orang’. Saya pergi ke rumah Abang Chan, tetapi kepada Abang Chan, saya tak menyatakan bahawa Awang ditetak.” [See Appeal Record, Volume 1, page 78]




“Bila lihat banyak kesan cedera, saya tanya sekali lagi pada mangsa, mangsa masih boleh berkata-kata walaupun dalam keadaan lemah. Saya kata betulkah Lan Chin Gula tetak hang?’ Mangsa jawab, ‘Ya dan hang tolong tengok dalam raga motor aku, ada tak duit -kalau ada tolong bagi kat bini aku.’ Selepas itu saya pergi ke arah mangsa dan pada masa yang sama Abang Chan pun sampai. Saya bagi tahu Abang Chan,


‘saya nak pi tengok duit dalam raga motor’. Saya dapati yang duit yang dimaksudkan itu tak ada. Motor itu masih terbalik. Dalam raga tak ada. Di sekeliling motorsikal juga tak ada.


Seterusnya dari tempat motor itu, saya menjerit kepada Abang Chan, duit tak ada…” [See Appeal Record, Volume 1, page 78]


[35] We are of the opinion that this statement by the deceased attracts the application of section 32(1)(a) of the Evidence Act 1952. Under section 32(1)(a), the maker of a statement who is dead and the statement in the form of a dying declaration as to the cause of his death or circumstances of the transaction which resulted in his death are relevant and admissible. Of course, the circumstances must have some proximate relation to the actual




occurrence [See Pakala Narayana Swami v King-Emperor [1939] MLJ 59]].


[36] The evidence shows that PW8 did relay the dying declaration on the identity of his assailant to Supt. Hj Mohd Shukri bin Hj Awang (PW16). PW8 also explained why he decided against telling the villagers of the dying declaration when he had the opportunity to do so:


“…saya tak beritahu tentang perkara ini sebab pada masa itu, sukar untuk saya terima kenyataan itu sebab saya juga kenal OKT. Pernah sama-sama main bola dan karekter beliau di kampong, beliau dari segi masyarakat – dia amat baik. Atas hal ini, saya perlu masa untuk mengiyakan apa yang dikatakan oleh mangsa.”. [See Appeal Record, Volume 1, page 82]


[37] Based on the above evidence, it does not lie in the mouth of the learned counsel to complain that the dying declaration was doubtful because PW8 did not disclose it to anyone.


[38] Learned counsel further submitted that the learned trial judge failed to address his mind on the accuracy and veracity of the statement. With respect, we cannot subscribe to this aspect of the learned counsel’s submission. We are aware that it is essential




that the court assesses the credibility of the deceased before relying on the statement made by him [See Chan Phuat Khoon v. PP [1962] MLJ 127]. In this regard, we have carefully scrutinized the records and find that the learned trial judge had in his judgment at pages 31 to 32 of the Appeal Record, directed his attention to the deceased’s credibility and held that the voice from beyond the grave speak the truth.


[39] It is important to note that there are also circumstantial evidence linking the appellant with the murder. The circumstantial evidence relied by the prosecution may be summarised as follows:


(a) Traces of the deceased’s blood was found on handle of the appellant’s motorcycle;


(b) The deceased withdrew RM9000 from his bank account prior to the incident;


(c) The recovery of RM9000 under the appellant’s bed;


(d) The appellant led the police to the discovery of the ‘parang’;


(e) Traces of the deceased’s blood was found on the ‘parang’; and




(f) PW 13’s testimony that the ‘parang’ could have caused the slash wounds.


[40] The learned trial judge also considered the appellant’s conduct in disposing the ‘parang’ and soaking the clothes in detergent as a deliberate attempt by the appellant to cover-up his crime.


[41] The composite picture presented, when the circumstantial evidence considered together with the dying declaration, proved the nexus and linked the appellant to the crime charged.


Evaluation of Defence


[42] In the present appeal, the appellant gave unsworn statement from the dock and no other witness was called for the defence. The legal position on unsworn statement from the dock has been explained in the case of Teuku Nawardin Shamsuar v PP [2011] 3 CLJ 353, where the Federal Court held as follows:


“[15] In the present appeal the appellant had chosen to furnish an unsworn statement from the dock and no other witness was called for the defence. The decision in Mohammed Salleh v PP [1968] 1 LNS 80 is useful. In the words of Wee Chong Jin CJ:




In our judgment, the right of an accused at his trial on a Criminal charge to make an unsworn statement from the dock is not a procedural right but a substantive right of an accused and accordingly does not depend on whether or not there is a specific provision for it in the Criminal Procedure Code. It seems to us beyond doubt that under our system of Administration of justice, and it has been so throughout the entire history of our courts, a person accused of a Criminal offence before an established court of justice has at his trial, as part of his defence, the right to make an unsworn statement from the dock if he wishes to do so. In our view this right can be taken away only by an express statutory provision to that effect.


With regard to the question of prejudice arising out of the trial judge’s comment on the probative value of the unsworn statement of the appellant, we are of the opinion that it is proper for a judge in summing up to remind the jury that a statement from the dock is not sworn evidence which can be the subject of crossexamination; that they can attach to it such weight as they think fit and that they should take it into consideration in deciding whether the prosecution have proved their case. ”


[43] In PP v Sharif Kadir [1997] 5 CLJ 463, Mohd Hishamudin


Yunus J (as his Lordship then was) held as follows:




“Since as a matter of law, an accused person cannot be cross-examined on his unsworn statement made from the dock, such a statement cannot carry the same weight as evidence given in the witness-box under oath.


The weight that should be given to such a statement must be such weight as the judge thinks fit. ”


[44] What the appellant had said in his unsworn statement is in essence that he did not commit the alleged crime as he was sleeping at his home at the material time. Notwithstanding the discernible incredulity in the defence versions rendered, the learned trial judge gave the versions its most earnest consideration before coming to a conclusion that the defence of the appellant did not raised a reasonable doubt on the prosecution’s case.


[45] We find the approach of the learned trial judge on this part of the case to be in accordance with the principle laid down by the Federal Court in the case of Ganapathy a/l Rengasamy v PP [1998] 2 MLJ 577 –


“It needs to be remembered that however weak a defence may be, trial judges being judges of both fact and law should not just brush aside the defence on the basis that the prosecution witnesses are to be believed and not the defence. Where the law cast the onus of giving an explanation upon an accused person, and the explanation is given, which if consistent with innocence, the court is duty bound to consider whether it might reasonably be true, although not convinced of its truth.




|On the issue of the court’s duty to consider the defence, the age-old decision in Mat v PP [1963] MLJ 263 is still good law today as it was then. This was followed by the Supreme Court in Mohamad Radhi bin Yaakob v PP [191] 3 MLJ 169.”.




[46] In our opinion, the learned trial judge had given very cogent reasons for convicting the appellant, and we see no reason to disagree with his verdict. Indeed, there is sufficient evidence to show that the appellant committed the offence charged.


[47] For all the reasons given above, we find no merit in this appeal and it is therefore dismissed. The conviction and death sentence imposed on the appellant by the learned trial judge is affirmed.


Dated: 5 July 2013




Court of Appeal Malaysia




Counsel for the Appellant: Simon Murali Tetuan Lio & Partners No. 29, Green Hall 10200 Pulau Pinang.


Counsel for the Respondent: Mangairkarasi a/p Krishnan Bahagian Perbicaraan & Rayuan Jabatan Peguam Negara Presint 4, Putrajaya.



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