IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA
CRIMINAL APPEAL NO: N-05-155-2010
ROSLI BIN HAMID – APPELLANT
PUBLIC PROSECUTOR – RESPONDENT
HEARD TOGETHER WITH CRIMINAL APPEAL NO: N-05-156-2010
KAMAL ARIFFIN BIN ABDUL HAMID SAMY – APPELLANT
PUBLIC PROSECUTOR – RESPONDENT
In the Matter of High Court at Seremban in the State of Negeri Sembilan Darul Khusus Criminal Trial No: 45-2-2007
Rosli bin Hamid &
Kamal Ariffin bin Abdul Hamid Samy
Sulong Matjeraie, JCA Mohd. Hishamudin Md. Yunus, JCA Abdul Wahab Patail, JCA
Date of Judgment: 19th March 2012 JUDGMENT OF THE COURT
 The appellants ROSLI BIN HAMID (Rosli) and KAMAL ARIFFIN BIN ABDUL HAMID SAMY (Kamal) were both charged with the murder of the victim Mohd Khairul Nizam bin Mohd Yusof (the victim) with joint intention as follows:
“Bahawa kamu bersama-sama pada 5.9.2006 di antara jam lebih kurang 8.30 malam hingga jam 11.40 malam di hadapan Wisma Belia, Taman Sri Serting, Bandar Seri Jempol, di dalam Daerah Jempol, dalam negeri, Negeri Sembilan telah membunuh dengan menyebabkan kematian ke atas MOHD KHAIRUL NIZAM BIN MD. YUSOF, KP: 821120-05-5611, oleh itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan dibaca bersama dengan Seksyen 34 Kanun yang sama. ”
 At the end of the trial, both had been found guilty as charged, and were convicted and sentenced in accordance with section 302 of the Penal Code read with section 34 thereof. Rosli and Kamal appealed to this Court. After hearing the parties, we dismissed their appeals and affirmed the conviction and sentence passed by the High Court.
The Prosecution Case
 The prosecution case was that Kamal had brought the victim to the scene of the crime where Kamal had hit and kicked the victim upon the excuse that the victim had admitted to molesting Kamal’s sister. Then Rosli came and did the same. Rosli was seen to leave the scene and came back with a piece of wood which he used to beat the victim again and again on the head and body, while Kamal beat the victim with his hands. Kamal then took the piece of wood from Rosli and beat the victim with it. This continued for some time.
 It was the prosecution case that after the victim was brought home where he told his brother he was involved in a road accident, his father had sent him to the hospital where he was warded in a comatose state for a number of days before he died. The cause of
death was complications from the head injuries. The prosecution relied upon Explanation 2 of section 299 of the Penal Code:
“s. 299 Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.”
“Explanation 2 – Where death is cause by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.”
 The prosecution relied upon the following provisions of the Penal Code:
a) Section 299: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
b) section 300: Except in the cases hereinafter excepted, culpable homicide is murder-
(c) if it is done with the intention of causing bodily injury to any
person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
 The prosecution conceded there was the element of provocation. However, it was the prosecution case that on the facts PP v Kuppusamy was distinguishable. It was the prosecution’s case that Exception 1 of section 300 of the Penal Code was not applicable:
Exception 1 – Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.
The Prosecution Evidence
 The prosecution called 11 witnesses.
 SP1 Md. Yusof bin Ibrahim, a lorry driver, is the father of the victim Mohd Khairul Nizam. He identified that the person in the photograph at ID4 was Mohd Khairul Nizam.
 SP2 Dr. Hans Alexander Mahendran was the medical doctor who attended to the deceased. SP3 Dr. Sharifah Safoorah bt Syed Alwee Al Aidrus was the forensic pathologist who conducted the post mortem on Mohd Khairul Nizam. She identified the person in the photograph ID4 as that of the person upon whom she conducted the post mortem.
 SP4 Zul’izuan bin Jasmin, a friend of Mohd Khairul Nizam. He identified the person in the photograph as Mohd Khairul Nizam. He was an eyewitness to the events of the incident. SP5 Konst. Hufaizah bin Sharifuddin, then a burger seller, was also an eyewitness. SP10 Alif Akhmar bin Ahmad was another eyewitness.
 SP9 ex-Insp. Norihan binti Yusof was the investigating officer who after questioning Rosli had proceeded to the crime scene and found the piece of wood and blood stains on the floor and wall of the dewan in Kampung Baru Serting. She handed over the piece of wood to SP11. SP11 C/Inspector Labang a/k Manggi was an investigating officer at IPD Jempol who went to the crime scene at Wisma Belia, Taman Seri Serting, Bandar Seri Jempol. He brought SP8. He found bloodstains on the wall, the floor and beside the drain. He arrested both accuseds and SP4. He received the piece of wood which he
marked E1 from SP9. He sent E1 (Ex P11), blood sample from the wall (E4: Ex P19), blood sample from the floor (E3: Ex P17) and blood beside the drain (E2: Ex P15), deceased’s blood sample (E7: Ex P13), and shirt and trousers of Kamal (Ex: P23A-B) and Rosli (Ex: P21A-B) to the Government Chemist Encik Bakhtiar bin Kasim at the Chemistry Department.
 SP7 D/Kpl RF/103506 Suhaimi bin Mohamed, a police photographer, took photographs of the crime scene. SP8 Koperal Mohd Azmi bin Talib, also a police photographer, took photographs at the post mortem. SP8 took the photograph ID4 (Ex P4).
 SP6 Insp. Mohd Azman bin Zaimi was the investigating officer who served a copy of the chemist’s report (PJ) FOR 7757-06-0 and the medical reports by Dr. See Mee Hoong from Kuala Pilah Hospital upon the two accused persons.
The Grounds of Appeal
 Three grounds of appeal were pursued:
a) SP4 is not a credible witness;
b) The trial did not follow procedure; and
c) The defence was not fully considered.
Credibility of SP4
 It was submitted that the testimony of SP4 was not credible because not only was he under arrest as a suspect for 12 days, but he was a participant in the crime, and there were contradictions in his testimony.
 From the evidence of SP4 himself, he was a participant in the crime, albeit according to his version he was a minor participant. We examined this evidence. At RR66 he had said:
“Simati dibelasah oleh OKT1 dan OKT2 lebih kurang 2 jam lebih. Saya tak ingat sama ada orang lain memukul simati. Saya sendiri tidak pukul simati. Saya tidak membantu simati sebab takut kepada OKT1 dan OKT2 pukul saya balik. Saya tak ingat sebab apa saya membuat anggapan begitu………”
 Under cross-examination at RR76, he was asked:
“S: Awak kata OKT1 sampai selepas 45 minit. Sebelum OKT1 datang awak pukul dia dengan tangan.
J: Saya lempang simati sekali.
S: Bila kamu lempang simati.
J: Selepas lebih dari 1 jam sampai baru lempang dia.
S: Tadi awak kata semasa disoal oleh Timbalan Pendakwa
Raya kamu kata kamu tidak pukul dia.
J: Ada lempang.
S: Kenapa awak lempang dia.
J: Sebab simati menuduh saya mencabul adik OKT1 dan
S: Bila dia tuduh kamu.
J: Di rumah saya. Saya dituduh lagi di tempat kejadian.
S: Selepas berapa lama berada di situ la tuduh awak lagi.
J: Tak ingat. Simati lawan biasa sahaja.
S: Kamu melihat tidak semua yang telah berlaku di tempat
 The rule as to accomplice evidence arises out of the fact there are various reasons why an accomplice gives testimony against his partners in crime, some warranting rejection of his testimony, yet
others not necessarily. There are, on the other hand, only too many cases where accomplice evidence may be the only available evidence. Hence, it is a long established rule that it is examined with utmost caution, and material corroboration from independent evidence is sought before reliance can be placed upon it to convict an accused on such accomplice evidence. See Khalid Panjang & Ors v. Public Prosecutor (No 2) [196411 LNS 60 FC.
 In this case, in re-examination, SP4 said “Saya lempang simati tidak kuat sangat”. He maintained his answer during crossexamination that he slapped the deceased. The Record of Proceedings show that the testimony that he slapped the deceased came as an answer to the defence suggestion that he hit the deceased with his hand. We find from the foregoing that although he sought to downplay his involvement as against the prosecution, he was direct and candid in his answer to the defence that he hit the deceased with his hand. To that, he answered he did so with a slap, and gave the reason that he was accused of having molested the accused’s sister. This was not challenged. It is not, therefore, a case of an accomplice passing all the blame to the accuseds for it is not the defence case that SP4 was the perpetrator of the cause of death.
 In addition, there was the testimony of SP5 and SP10. Nowhere was there made at any time the suggestion that SP4 was the sole perpetrator. There was more than sufficient independent material corroboration that supports the conclusion that the testimony of SP4 is credible and reliable and is safe to rely upon it. In the circumstances, we find the learned Judge did not err in placing reliance upon the testimony of SP4 and not rejecting his testimony in toto.
 It was submitted that the learned trial Judge applied wrong procedure when he allowed the prosecution to amend the charge after the prosecution case had closed and did not allow the defence to recall witnesses.
 The original charge upon which Kamal and Rosli were tried appears at RR150. The amended charge appears at RR 179. The difference is with regard to inclusion of language pertaining to section 34 of the Penal Code. The precise difference is that the consideration is no longer of each accused’s intention or knowledge.
 The prosecution had closed its case on 29/12/2009 and offered remaining witnesses to the defence. On 30/12/2009, and before the
defence case commenced, the prosecution applied to amend the charge. The objection then made was:
“Peguam: Walaupun Seksyen 158 CPC memberikan budi bicara kepada Mahkamah namun dalam kes ini pindaan itu memprejudiskan OKT-OKT.”
 The right to recall witnesses is provided under section 162 of the Criminal Procedure Code:
“Whenever a charge is altered or added by the Court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or re-summon and examine, with reference to such alteration or addition, any witness who may have been examined, and may also call any further evidence which may be material.”
 It is observed that section 162 provides that the accused shall be allowed to recall or re-summon and examine with reference to such alteration or addition, any witness who may have been examined and may also call further evidence which may be material. It clearly calls for the defence to make an application and the Court cannot refuse.
Hence, in Hj Maamor Hj Abdul Manap v PP  1 CLJ 370 HC
Augustine Paul J (as he then was) had this to say of section 162:
“This section does not mean that whenever the court alters the charge after the commencement of the trial an accused person has an absolute right to recall and examine a witness. It only applies where the application to recall a witness has reference to the altered charges (see Yeow Fook Yuen & Anor v. R 2 MLJ 81). In that event the examination of the witness must be confined to the alteration in the charge. As Martineau J said in Hazara Singh & Others v. Emperor AIR  Lah 60 at p. 61:
The right is thus not restricted to the re-calling of those witnesses only who have deposed to the subject matter of the alteration or amendment in the charge. The other witnesses also may conceivably be in a position to depose to facts in connection with such alteration or amendment. All that the Court can do is to restrict the examination of the witness to the alteration or amendment in the charge.
When the section applies it is mandatory to allow witnesses to be recalled even if the alteration has not prejudiced the accused. In this regard I refer to Nagendra Nath Sen v. Emperor AIR  Cal 486 where Pearson and Mc Ghose JJ said at p. 487:
It may be that the alteration did not in fact prejudice the accused in any way, but it is to be observed that s. 231 Criminal PC does not
leave any discretion to the trying Magistrate. The section is mandatory. It states that in a case of an alteration after the commencement of the trial the accused shall be allowed to recall or re-summon and examine any witness who may have been examined.”
 Our examination of the Notes of Proceedings does not show any application being made and refused. Instead, after the learned trial Judge dismissed the objection of the amendment being prejudicial to the defence, counsel proceeded after the amendment to make submissions as at the end of the prosecution case, when there is nothing to prevent the defence from making application to recall witnesses.
 We note the learned trial Judge did not advise counsel the defence had the right to recall witnesses or call further witnesses. He did not have any obligation to do so. In Azhar Che Wil v PP  8 CLJ 905 FC the Federal Court had this to say:
“ The only complaint by Mr. Karpal Singh was that had the charge been amended, the accused would have had the opportunity to recall or re-summon and examine any witness and to call further evidence which may be material
to his defence. But we are of the view that even without
the charge being amended, the 1st accused is not precluded from recalling or re-summons any witness or to call for further evidence. Cases have shown that even if a charge is amended, but where an accused person is represented by counsel, the trial judge is not obliged to inform the accused person of his right under s. 162 to recall any of the witnesses for the prosecution. In Moosa Abdul Rahman v. The State of Kerala  Cr LJ 1384, the full bench of the High Court of Kerala held that s. 217 of the Indian Criminal Procedure Code 1974 (which is in pari materia with our s. 162):
… does not cast a duty or obligation on the court to enquire of the prosecution or the accused whether they would like to recall or re-summon the witnesses … or to call any further witnesses. The omission of the court to ‘enquire of the prosecution or the accused whether they would like to exercise the right of re-calling or re-summons the witnesses would not result in any procedural illegality’.
 The above proposition was accepted by the Court of Appeal in Msimanga Lesaly. Gopal Sri Ram JCA (as he
then was) held that where an accused is represented by counsel it is unnecessary for the court to draw counsel’s attention to s. 162 of the Criminal Procedure Code or to inquire whether counsel intends to exercise the right conferred by the section.
 We endorsed the above view…”
 We return to the objection made that the amendment prejudice the accused persons. However, no explanation was given as to what the prejudice was. There was nothing put before the Court, not only for the Judge to consider, but also the prosecution to answer as to whether there was in fact prejudice to the accuseds. We find no error in the learned trial Judge rejecting the objection.
Defence not fully considered
 It was submitted that the learned Judge had placed the wrong burden upon the defence. Counsel referred to RR36 where the learned trial Judge said:
“75……… Jika pembelaan kedua-dua OKT dan juga
keterangan SD4 menyakinkan Mahkamah atas imbangan
kebarangkalian maka Mahkamah tiada pilihan melainkan melepaskan dan membebaskan mereka. “
 Closer examination of the Grounds of Judgment shows that at paragraph 75 the learned trial Judge had first correctly directed himself upon Mohammad Radhi bin Yaakob v PP [19911 3 CLJ 2073 SC: [199113 MLJ 169 SC. In that case, it was held that:
“Whenever a criminal case is decided on the basis of the truth of the prosecution case as against the falsity of the defence story, a trial Judge must in accordance with the principle laid down in Mat v. PP  1 LNS 82 examine whether even though the Court is not satisfied with the defence story, to ask whether in spite of this, the defence story casts a reasonable doubt on the prosecution case.
To satisfy this test, of importance is not the words used by the Judge but rather the actual application of the test to the facts of the case. In this case, the learned Judge offered practically no reason why the defence notwithstanding its falsity and unconvincing nature, had failed to cast a reasonable doubt on the prosecution case, other than to
state by way of lip service the duty placed by the law on the defence to earn an acquittal.”
 Though no reference was made to it, in Mohamed Yatin Bin Abu Bakar v Public Prosecutor [19491 1 LNS 50; F19501 1 MLJ 57
HC, Spenser Wilkinson J had held:
“In this country, at the close of the case for the prosecution the Court will not call upon the accused for his defence unless the evidence of the prosecution witnesses is, in the first instance, believed. If, when called upon for his defence the accused gives evidence, then the question is, not which story is to be believed, but whether, even if the Court is not inclined to accept all that the accused has said, his evidence does not raise a reasonable doubt as to the truth of the prosecution evidence or as to the accused’s guilt.”
 Then the learned trial Judge considered the defence against the totality of the evidence of other witnesses and their credibility before concluding at paragraph 90 of the Grounds of Judgment at RR42 that:
“Di akhir perbicaraan kes, setelah meneliti keseluruhan keterangan yang dikemukakan oleh pihak pendakwaan dan pihak pembelaan, Mahkamah berpuashati bahawa pihak pembelaan telah gagal untuk menimbulkan keraguan yang munasabah terhadap kes pendakwaan.
Oleh itu OKT1 dan OKT2 didapati bersalah dan disabitkan seperti pertuduhan di bawah Seksyen 302 Kanun Keseksaan dibaca bersama Seksyen 34 Kanun yang sama.”
 It was submitted that it was put to SP4 that he took a piece of wood but he denied. The relevant passage is at RR71:
“S: Semasa simati, kamu, OKT2, Hussein, kamu juga ambil kayu memukul simati tapi OKT2 telah menahan kamu.
S: Bila kamu marah sebelum kamu sempat buat apa-apa OKT2 ada tahan kamu.
J: OKT2 tak buat apa-apa.
S: Ada seorang lagi bernama Mohd Zaidi di situ.
S: Motosikal yang kamu naik pergi ke tempat kejadian motosikal siapa.
J: Motosikal Mohd Zaidi.
S: Mohd Zaidi juga sampai sebelum simati sampai ke rumah kamu.
S: Bila sampai di dewan, simati ada kata kepada kamu la lapar.
S: Bila sampai di dewan belia, apa simati buat.
J: la berdiri.
S: Selepas la turun, la ada beritahu la lapar. Kemudian la beri duit untuk beli roti dan soya bean.
J: Saya ikut Hussein pergi kedai beli air soya bean dan air mineral.
S: Itu atas permintaan simati.
J: Ya. “
 We reproduced this at some length since the passage shows the submission is somewhat out of context. Even if it is true SP4 picked up a piece of wood, it was well before the time at the scene of crime. It was the defence case that having arrived, SP4 was asked to buy food and drink which he did. Then he came back. Then as in the passage quoted at paragraph 17 above, he slapped the deceased once. Then the defence case continued to be laid out in the crossexamination of SP4 as follows:
“S: Bila dia tuduh kamu.
J: Di rumah saya. Saya dituduh lagi di tempat kejadian.
S: Selepas berapa lama berada di situ la tuduh awak lagi.
J: Tak ingat. Simati lawan biasa sahaja.
S: Kamu melihat tidak semua yang telah berlaku di tempat kejadian.
S: Kamu ada melihat kayu, kamu tak tahu dari mana datangnya kayu ini.
S: Keadaan tempat kejadian huru hara dan bising.
 Then the cross examination continued:
S: Sebenarnya kamu tak pasti siapa yang memukul simati.
J: Saya pasti dia orang yang pukul…
S: Kamu tidak beritahu keluarga simati ia telah dipukul.
S: Siapa orang terakhir keluar dari tempat kejadian.
J: Tak tahu.
 We found that from paragraph 50 of the Grounds of Judgment, the learned trial Judge recounted the defence case and the evidence of Rosli (SD1), Kamal (SD2), Khatijah binti Abdul Hamid Samy (SD3) and SD4 Hussein bin Abd Hamid (SD4), proceeded to summarise the core of the defence at paragraph 74 and set out the reasoning from paragraph 75 to 89, before arriving at his decision at paragraph 90.
 Considering the grounds from paragraph 50 onwards, we can find not reason to hold that the learned Judge had in fact misdirected himself and, therefore, erred by applying the wrong standard of proof.
We hold, therefore, that the line quoted at paragraph 29 above from the second part of paragraph 75 of the Grounds of Judgment was not an error that, applying Harun bin Abdullah v Public Prosecutor [19981 3 MLJ 1 CA cannot be rectified under section 422 of the Criminal Procedure Code.
 Kamal’s sister Khatijah whom the deceased was alleged to have molested is also the sister of Rosli. Although Rosli was not with Kamal when Kamal was first informed by one Roslan of the alleged molesting Khatijah, and had beaten the deceased, the evidence showed that when he arrived after being called by Hussin, he had immediately proceeded to kick the stomach of the deceased until the deceased fell down. When Rosli arrived, Kamal was still beating the deceased. According to the evidence of SP4, Rosli continued to punch the deceased for about 20 minutes. Then he left but came back three minutes later with a piece of wood. Clearly it must be inferred he was not satisfied with kicking and punching and left only to get a piece of wood. Rosli hit the deceased on the head. He looked angry, asked the deceased to show his hand which Rosli then hit, causing the deceased to cry out in pain. The evidence showed the beating by Rosli and Kamal continued for about two hours.
 In this case, the common intention went beyond the common intention of a “vicarious” nature as explained in Sabarudin Non v. PP [20051 1 CLJ 466: F20041 7 LNS 654 as the evidence shows that though it was Kamal who began with beating, Rosli had come and actively participated together with Kamal to beat the deceased.
 The evidence also showed it was not one of them but both Rosli and Kamal had hit the deceased with the piece of wood, causing the head injuries that led to the death of the deceased.
 In the circumstances, we find that the High Court did not err in law, principle or in any finding of fact in arriving to its decision to find both appellants guilty as charged and to convict and sentence the appellants thereon. We, therefore, dismiss the appeal and affirmed the conviction and sentence passed by the High Court.
(DATUK ABDUL WAHAB PATAIL)
Court of Appeal, Malaysia Putrajaya
Dated: 26th December 2012
for the Appellants: for the Respondent:
Mr. Sukhaimi bin Mashud Messrs Karthig Shan
Mr. Mohamad Abazafree bin Mohd. Abbas, TPR
Jabatan Peguam Negara