Zulkipli Abdullah V Public Prosecutor


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(In the Matter of High Court of Sabah & Sarawak at Kuching Criminal Trial No: KCH-45B-2/9-2014)




Public Prosecutor And


Zulkipli Abdullah CORAM:










[1] This is an appeal against conviction and sentence by Zulkipli Abdullah, the appellant. The appellant was charged with two offences of murder which are punishable under section 302 of the Penal Code. The First Charge was for the murder of Aidan Brunger, a British national. The charge reads as follows:


First Charge


“That you, on 6 August 2014 at about 4.10 am to 4.15 am, at Jalan Abell in the vicinity of City Inn Hotel, Jalan Abell, in the District of Kuching, in the State of Sarawak, committed murder by causing the death of Aidan Brunger (United Kingdom Passport No: 210115321), and thereby committed an offence punishable under section 302 of the Penal Code.”


[2] The Second Charge was for the murder of Neil Gareth Dalton, also a British national. The charge reads as follows:


Second Charge


“That you, on 6 August 2014 at about 4.10 am to 4.15 am, at Jalan Abell in the vicinity of City Inn Hotel, Jalan Abell, in the District of Kuching, in the State of Sarawak, committed murder by causing the death of Neil Gareth Dalton (United Kingdom Passport: 112319583), and thereby committed an offence punishable under section 302 of the Penal Code.”




The Prosecution’s Case


[3] The prosecution’s case unravels as follows. In the wee hours on 6.8.2014, after a bout of drinking session at the 3rd Mile, Golden Valley Pub, the appellant was on prowl in a white Perodua Viva car (Viva car) looking for girls (prostitutes). The Viva car bore the number plate QAW 4913. The Viva car was owned and driven by Yeo Kia Sing (PW11). The appellant was seated in the front passenger seat, whilst Abdul Aziz bin Karim (PW13) and Remy bin Marjuki were seated at the rear passenger seat.


[4] They went to Longhouse Hotel where PW11 saw two foreigners were pushing the table at each other. The appellant could not find the girls there. As he stepped out from the said hotel, the appellant noticed the foreigners. He approached them. But they ran away across the road. The appellant chased after them but he later gave up. The appellant went back to PW11’s car. At the request of the appellant, PW11 drove around Everrise Supermarket and its vicinity but failed to find any girls.


[5] PW11 stopped his car in front of a shop and opposite this shop there was a bus stop. While in the car, the appellant apparently saw the two foreigners. One of them was walking on the road divider (later identified as Aidan Brunger) while the other was on the opposite side of the road (later identified as Neil Gareth Dalton). They were about five metres away from PW11’s Viva car. When the appellant saw them, he suddenly said “Mau test power” (it literally means to test the strength). As the appellant was about to get out of the Viva car, PW11 grabbed the collar of the appellant’s shirt. The appellant managed to break loose




from PW11’s grasp. PW11 told PW13 and Remy to stop the appellant, but they did not manage to do so as thing happened so fast. Both PW13 and Remy came out of the car. They were standing behind the car. As the appellant was approaching the foreigner on the road divider, he again said “Mau test power.” The foreigner was heard to reply “What?”, presumably he did not understand what was uttered by the appellant. The appellant walked up to Aidan and punched his face once. On seeing this, Neil who was on the other side of the road came and pushed appellant. The appellant appeared to have stumbled down, he immediately took out a folding knife, exhibit P41B from the rear pocket of his trousers. The appellant stabbed the chest of Aidan Brunger on the left. Aidan Brunger collapsed. At that time, Neil Gareth Dalton attempted to run away but he was grabbed by the appellant. He was also stabbed by the appellant. Neil managed to run across the road towards the Digi Shop where he too collapsed and ultimately found dead on the five-foot way as seen in the CCTV footages. Aidan who collapsed, suddenly stood up and scurried towards the bus stop but collapsed again. The appellant then walked up to Aidan and kicked his face. Subsequently, Aidan was also found dead.


[6] Another witness was Nesty Anak Jeprin (PW18) who worked as a waitress at AL Baik Bistro, Jalan Abell, Kuching. On 6.8.2014, at about 4.00 am, PW18 was tidying the outside of the Bistro when she saw two foreigners were walking on the road passed her shop, at a distance of about eleven to twelve metres away from her. Suddenly they stopped on the road. At this juncture, a car stopped about ten metres away from PW18. Three persons came out from the car but only one of them went up to the two foreigners. He attacked and stabbed the two foreigners. The other two persons who came out from the car were standing and




waiting at the back of the car. The assailant first attacked and stabbed the deceased, who was wearing a black shirt using a sharp weapon like a folding knife. PW18 was not sure from where the assailant obtained the knife, nor was she certain at which part of the body of the first victim was stabbed. The assailant then turned to second foreigner, who was wearing a grey shirt. He was also attacked twice at his back. When the second foreigner reached in front of the bus stop, he collapsed. Having seen this, the first foreigner ran away but PW18 did not know where he had gone to.


[7] PW18 identified the appellant through his physique at an identification parade held by Insp. Alias bin Nen (PW9) at Tabuan Jaya Police Station, two days later after the murders of Aidan and Neil.


[8] Immediately, PW18 made a frantic call to the Inquiry Office at Kuching Central Police Station where Cpl. Noorazizah bt Bohari (PW4) was on duty. PW18 informed PW4 that a foreigner was stabbed with a knife by three male persons who alighted from a white Perodua Viva car bearing registration number QAW 4913 near the AL Baik Bistro, at Jalan Abell, Kuching. The victim was said to be unconscious.


[9] PW4 then relayed the information she received from PW18, in particular the registration number of the Perodua Viva car, QAW 4913, to the Police Control Centre to alert all patrol cars on duty. Thereafter, PW4 lodged the first information report vide Pandungan Report No. 2160/14 which was produced as exhibit P98. As there was an error of the name of the Bistro where PW18 worked, PW4 lodged a corrective report vide Pandungan Report No. 2249/14 which was tendered as exhibit P98A.




[10] After the stabbing of Aidan and Neil, the appellant then walked back to the car. He entered the car. PW13 and Remy who were standing at the back of the car had earlier entered the car. When all of them were inside the car, PW11 drove off. In the car, the appellant unfolded the knife exhibit P41B and sniffed it and at the same time he said that the smell of the blood was good.


[11] At about 5.00 am, they arrived at the appellant’s house at Lorong Gersik, Kuching. The appellant gave exhibit P41B to one Othman bin Ayoob (PW12) requesting him to clean it. PW12 cleaned it under running tap water and wiped it with a cloth. Exhibit P41B was returned to the appellant and he proudly told PW12 “Pisau ini baru cucuk orang putih” (This knife had just stabbed white foreigners).


[12] Before driving home, PW11 removed both the number plates of his Viva car. PW11 arrived home at Taman Sin Sin, Kuching at about 6.00 am. Almost immediately Insp. Dorairajah a/l Vanaltham (PW7) raided P11’s house and arrested him. The white Perodua Viva car without the number plate was seized. The number plate bearing registration number QAW 4913 was found on the rear seat of the Viva car.


[13] Upon interrogation, PW11 led ASP Unang anak Giang (PW8) to the appellant’s house where he was arrested. The knife exhibit P41B was seized from a small table inside the room where the appellant was sleeping. PW8 also seized a pair of jeans, exhibit P38C stained with blood from the appellant.




[14] The evidence of PW11 was supported by the evidence of PW13 and PW18 in so far as the assault and stabbing of both the deceased was concerned.


[15] Both the deceased, Aidan and Neil were removed to the mortuary at Kuching General Hospital. The post-mortem on Aidan Brunger was conducted at about 11.30 am by a Consultant Forensic Pathologist, Dr. Bhupinder Singh a/l Jaswant Singh (PW14). On external examination, PW14 found that there were five external marks of trauma, including a stab wound on the left side of the chest of the deceased, Aidan. An internal examination showed that the stab wound had penetrated the chest cavity going into the lung, pericardium and into the heart of the deceased, Aidan. This stab wound caused the death of Aidan Brunger. PW14 opined that the injury on the left chest could have been caused by a sharp pointed weapon such as a knife with a blade measuring at least five to six inches in length. It was inflicted with considerable force. PW14 further opined that the stab wound was inflicted by the assailant from a frontal approach to the deceased. The wound was directed medially. PW14 was also of the view that this injury was sufficient in the ordinary course of nature to cause death. PW14 concluded that the cause of death of Aidan Brunger was “Cardiac Temponade due to stab wound on the left side of the chest.” A post-mortem report was prepared and produced as exhibit P131.


[16] The post-mortem on Neil Gareth Dalton at about 11.50 am by the same Consultant Forensic Pathologist, PW14. An external examination of the deceased body disclosed that there were twenty one injuries which consisted of multiple stab wounds and abrasions. The abrasions on the body could be as a result of a fall onto rough surface such as the




road side or a cement covering of the drain. The abrasions on the face and nasal area could have been resulted from a fall with the face smashed on a rough edge, possibly the rough edge of a drain cover. The stab wounds were seen on an anterior and posterior parts of the body and some of them could have been caused after the deceased had fallen. On the internal examination, PW14 confirmed that the stab wound (at left side of the chest) listed at No. 21 in the post-mortem report was caused the death of the deceased, Neil Gareth Dalton. PW14 opined that a sharp pointed weapon such as a knife could have caused this fatal injury. Similar type of weapon with the blade measuring of about five to six inches in length could have caused the said injury. PW14 concluded that the cause of death of the deceased was also “Cardiac Tamponade due to the stabbed wound.” PW14 said that the deceased’s chances of survival was practically nil. A lot of blood was loss. The blood flowed into the chest cavity and also accumulated in the pericardial sac. PW14 was also of the view that the assailant could have attacked the deceased from the front resulting in the deceased falling down. Then there could have been an attack by the assailant from the back. On the multiple abrasions seen at the medial aspect of the right mid thigh region and on the hands, PW14 opined that there was a possibility that the deceased could have been involved in a struggle. A post-mortem report on the deceased, Neil was produced as exhibit P134.


[17] On being shown the knife, exhibit P41B, PW14 was of the view that it was possible for exhibit P41B could have caused the stab wounds on both the deceased.




[18] Further, PW14 also agreed that there would definitely be bloodstains on the assailant’s clothings if exhibit P41B was used to stab both the deceased, Aidan and Neil.


The Findings Of The T rial Judge At The Close Of The Prosecution’s Case


[19] At the close of the prosecution’s case, the findings of the trial judge may be summarised as follows:


1) On the defence contention that there is no reason for the appellant to attack and stab both the deceased, it is trite law that the motive for the murder is not an ingredient of the offence for which the prosecution is required to prove, save where the prosecution is relying on circumstantial evidence: see Sunny Ang v PP [1966] 2 MLJ 195;


2) The trial judge was satisfied that the prosecution has proved the death of both the deceased, Aidan and Neil. This issue was not disputed by the appellant;


3) (i) The key eye witnesses who saw the appellant attacked and stabbed both the deceased were PW11 and PW13. The trial judge found there was no basis in the allegation or contention of conspiracy which was unsubstantiated by evidence and hence baseless;


(ii) PW11 and PW13 cannot be construed as accomplices which required their respective evidence to be corroborated.




PW11 and PW13 are credible witnesses. They had no axe to grind against the appellant. The trial judge found as a fact that both PW11 and PW13 and Remy were not involved the fatal assault on both the deceased, Aidan and Neil. Neither the blood stains of both the deceased were found on the clothings of PW11 and PW13, nor their DNA profiles were detected on the murder weapon, exhibit P41B. It was also unchallenged evidence that PW11 who was the driver of the car had never left the driver’s seat at all material times, until after the said fatal assault;


(iii) The next eye witness was PW18 whose evidence has been vigorously challenged by the defence in cross examination and submission. PW18 conceded that she had made a genuine mistake in the police report, exhibit P98 which she reported that there were three persons came out from the car, attacked and stabbed the deceased. She had nevertheless rectified the inadvertant mistake when she gave the statement under section 112 of the Criminal Procedure Code to the investigating officer, PW23, on the following day on 7.8.2014. This evidence was confirmed by PW23. The trial judge found the evidence of PW18 was consistent with the evidence of PW11 and PW13, that is, the appellant was the sole assailant who stabbed both the deceased. Therefore, the trial judge accepted PW18’s explanation of the errors in her information given to PW4 who lodged the FIR, exhibit P98. The trial judge also accepted PW18’s testimony in court to be credible and admissible. Having considered the evidence in its entirety and having observed the




demeanour of PW18, the trial judge found that PW18 was a credible witness and she had no motive to lie: see PP v Mohd Bandar Shah Nordin & Anor [2008] 4 CLJ 859;


4) The trial judge found that the act of stabbing the deceased with the pointed knife, exhibit P41B with reasonable force, as opined by PW14, and directed at the vital region of the bodies which certainly showed the appellant’s intention to cause bodily injury to the deceased. PW14 also opined that the injury suffered by the deceased was sufficient in the ordinary-course of nature to cause death. The trial judge agreed that the acts of stabbing the deceased by the appellant was committed with the intention of causing such bodily injury to cause within sections 300(b) and 300(c) of the Penal Code;


5) Although both the prosecution and the defence had not submitted on the issue of intoxication, nevertheless the trial judge considered the evidence relating to the appellant having consumed hard liquor and/or beer coupled with ecstasy pills and other drug known as “5”. The trial judge held that the appellants self-induced intoxication and/or consumption of drugs did not negate the appellant’s acts which had caused the death of both the deceased;


6) The trial judge found that the fact or evidence in the instant case did not fall within any of the five exceptions found in section 300 of the Penal Code. According to the trial judge the closest exception perhaps, was unpremeditated sudden




fight. However, there was no sudden fight in the true sense between the appellant and both the deceased, whether singly or severally. That being the case, the First Charge and the Second Charge of murder under section 302 of the Penal Code shall remain the proper charge. There is no valid ground for both the original charges be reduced to lesser charges of culpable homicide not amounting to murder under section 304 of the Penal Code;


7) The trial judge found that, if there were inconsistencies, they were minor and did not demolish the crux of the prosecution’s case. Neither there was any discrepancies in the evidence of PW18 (which was explained and accepted by the trial judge) to affect her credibility: see PP v Datuk Haji Harun Idris & Ors [1977] 1 MLJ 180.


[20] Having undertaken the prosecution case on a maximum evaluation, the trial judge held that the prosecution had proved a prima facie case of murder of Aidan and Neil against the appellant. Hence the appellant’s defence was called on both the First Charge and Second Charge.


Defence Case


[21] The appellant did not testify on oath. He tendered an unsworn statement from the dock. The statement was written in English and translated to him. He understood the contents and confirmed to be his statement representing his defence from the dock. The unsworn




statement was marked as exhibit D150. He did not call any other witness.


[22] In D150, the appellant denied that he stabbed and caused the death of the two deceased. He had no reason to injure the deceased as they were strangers to him. It was impossible for him to fight and stab them since both the deceased were taller, bigger and stronger than him.


[23] The appellant denied that he told PW11 and PW13 that he wanted to test the strength of the foreigners. He denied that he was armed with any weapon to stab the foreigners. However, the appellant admitted that he had punched one of them. While in the car, he denied that he smelt the blood and said that the blood of the foreigners smelt good.


[24] The appellant went on to say that PW11 and PW13 asked him to pass the knife to Othman bin Ayoob (PW12) to clean it, since the appellant was more familiar with PW12. He denied telling PW12 the words “Pisau ini baru cucuk orang putih.” After PW12 had cleaned and returned the knife, the appellant alleged that PW11 and PW13 told him to keep it. Upon arrival home, the appellant left the knife on the side table in his room. He contended that if he had used the knife to kill or stabbed anyone, he would have thrown it away. Further, he would not have gone home to sleep but would have fled from his house.


[25] At the coffee shop near the Longhouse Hotel, the appellant said they met an Englishman. It was PW11 who picked up a quarrel with the Englishman who overturned a table before the Englishman ran away. PW11 was very angry and wanted to go after the Englishman but they all went back to the car. The appellant said he had suggested to PW11




to return home, but PW11 was not satisfied and he drove around the area trying to look for the Englishman. When they saw the Englishman again, PW11 stopped the car and all of them alighted and approached the foreigners. The appellant said that was why PW18 saw three persons coming out from the car to attack one foreigner. These three persons were PW11, PW13 and himself. He said that when they approached the foreigner, he punched him. The foreigner fell. At this time, PW11 and PW13 came to help him. They struggled with the foreigner. The appellant said that he did not notice the second foreigner as he was busy struggling with the first foreigner. PW11 and PW13 also struggled with the first foreigner.


[26] The appellant denied taking the knife from his rear pocket and stabbed the foreigner. He had only punched the foreigner.


[27] The appellant added that after the incident, PW11 drove his car away and PW11 also removed the number plate of his car.


[28] The appellant contended that it was unjust that he alone was charged with killing the two foreigners when in fact, it was three of them who were involved in the struggle and fight with one of the foreigners.


The Findings Of The T rial Judge At The Conclusion Of The T rial


1) The appellant’s defence as disclosed in his unsworn statement, D150 was never laid down during the prosecution case. Neither the defence was raised or challenged in cross examination of PW11, PW13, PW18 or the I.O. A failure to cross-examine a witness on a crucial part of the case will




amount to an acceptance of the witness’s testimony: see Wong Swee Chin v PP [1981] 1 MLJ 212. Hence the unchallenged evidence or the acceptance of the prosecution’s version of the story had discredited the unsworn statement of the appellant. Such defence by the appellant was an afterthought. The appellant’s version of the events as averred in D150 are as follows:


(i) It was PW11 who picked up the trouble with the Englishman because of his quarrel earlier at Tat Soon Cafe near the Longhouse Hotel;


(ii) The appellant denied stating that he wanted to test the strength of the foreigners;


(iii) The appellant denied that he had a knife or he attacked the foreigners with a knife which he took out from the rear of his trousers pocket.


2) The size and strength of the deceased were not an impediment to the appellant to attack and stab the deceased. The trial judge found that the defence proposition that a man of smaller size like him could not have stabbed the deceased who were bigger, taller and stronger was not true. However, the appellant admitted that he did punch the foreigner. Hence, it was untrue that the size of the deceased’s body had hindered the appellant’s attack on them;




3) The appellant’s silence in his defence of the existence and the role played by Remy bin Marjuki gave rise to doubt in the appellant’s credibility and his version of the attack and stabbing of the two foreigners;


4) The appellant’s allegation to implicate PW11 and PW13 with the knife was patently refuted by the DNA test which confirmed the presence of the DNA profiles of both the deceased, Aidan and Neil and the appellant on the folding knife, P41B;


5) The trial judge found that PW12 had no reason whatsoever to lie in order to implicate the appellant. The appellant’s assertion that he did not attack and stab the deceased was a mere bare denial and could not constitute a credible defence. The trial judge did not doubt the evidence of PW12 whom His Lordship found PW12 to be a straight forward witness and he gave cogent account of what transpired between him and the appellant;


6) Having considered the defence of the appellant encapsulated in D150 in the light of the prosecution’s overwhelming evidence, the trial judge found the appellant’s version of the story was riddled with improbabilities, unexplained gaps or bare denial. It could not, therefore, cast a reasonable doubt on the prosecution’s case;


7) Consequently, the trial judge found the prosecution had proved its case beyond reasonable doubt on the First Charge




and Second Charge against the appellant. Therefore, His Lordship found the appellant guilty and accordingly, convicted the appellant on both charges and sentenced the appellant to death.


The Appeal


[29] In his petition of appeal dated 20.11.2015, the appellant listed fifteen grounds of appeal as follows:


1) The learned High Court Judge at the end of the prosecution’s case failed to subject the prosecution evidence to a maximum evaluation as required by the case of Looi Kow Chal & Anor v PP [2003] 2 MLJ 65;


2) The learned High Court Judge failed to critically assess the credibility of the prosecution witness namely, Nesty anak Japrin (PW18) and to draw inferences admitted by the prosecution evidence;


3) The learned High Court Judge failed to critically analyse the evidence of Nesty anak Japrin in that he failed to consider the evidence of PW18 in the light of numerous lies told by PW18 under oath;


4) The learned High Court Judge did not critically analyse and assess the evidence of Nesty anak Japrin (PW18) in the light of the clear evidence of L/Cpl. Noorazizah binti Bohari (PW4) and the police report, exhibit P98;




5) The finding of the learned High Court Judge at p.1053 of the Appeal Record, Vol. 6/8 was wrong in law and in fact in that he did not consider the evidence adduced under crossexamination;


6) The learned High Court Judge failed to consider the evidence of PW4 and exhibit P98 which are clearly inconsistent and contrary to the two murder charges preferred against the appellant;


7) The learned High Court Judge failed to apply his judicial mind to the evidence in favour of the appellant;


8) The learned High Court Judge was wrong to have convicted the appellant on both charges preferred against the appellant in the light of contradicting evidence to show that there were three assailants who had attacked both the deceased;


9) The learned High Court Judge was wrong in law and in fact to have convicted the appellant on the second charge relating to the killing of Neil Gareth Dalton when the forensic evidence adduced through PW1 did not establish a nexus between the alleged act of the appellant to the demise of Neil Gareth Dalton;


10) The learned High Court Judge failed to consider that PW11 and PW13 were accomplices whose evidence were required to be corroborated by independent evidence;




11) The learned High Court Judge failed to exclude in toto the evidence of PW11 and PW13 in the light of the undisputed evidence that both witnesses were arrested during the initial investigation and remanded, but subsequently released and discharged not amounting to an acquittal.


Refer to the cases of:


(i) PP v Ku Hang Chua [1975] 2 MLJ 99


(ii) R v Pipe [1967] 51 CR App Rep 17


(iii) Regina v Turner & 2 Ors reported in Times Law Report of 24 March 1957


12) The learned High Court Judge failed to consider the evidence of Abdul Aziz bin Karim (PW13) that the appellant and the foreigner were fighting and struggling and that they were punching at each other: refer to cross-examination at pp 534 and 535 of the Record of Appeal, Vol. 3;


13) The learned High Court Judge also failed to take into consideration the opinion of the Consultant Forensic Pathologist, PW14 at p 956 of the Appeal Record, Vol. 6/8, when he agreed under cross-examination that there would definitely be bloodstains on the assailant’s clothings if he had stabbed both the deceased;




14) The conviction of the appellant on both charges was wrong and not supported by the evidence adduced in court;


15) The appellant pray that the conviction and sentence imposed by the High Court be set aside.


[30] In his oral submission before us, learned counsel abandoned grounds Nos. 9, 10, 11 and 12 in the petition of appeal. He proposed to proceed with grounds No. 1, 2, 3, 4, 5, 6, 7 and 8 which focus on the evidence of PW18. PW18 described the appellant, to borrow the words of learned counsel as “a lone wolf assailant” who attacked the victims was untrue and perjured. PW18’s evidence flatly contradicted the evidence of PW4 and the FIR which clearly stated that both the deceased, Aidan and Neil were stabbed by three male persons.


[31] According to PW18, she informed PW7 that there was only one assailant, but PW7 said that he was informed by PW18 about the car number only, that is, QAW 4913. Thus the trial judge finding that PW18 was a credible witness was flawed as her credibility was not assessed or evaluated on a maximum basis.


[32] PW8’s evidence that the appellant was a lone wolf assailant was a blatant lie and therefore she had given false evidence under oath which she was duty bound to state the truth. As such she is liable for an offence punishable under section 193 of the Penal Code.


[33] As a result of the conflict in the evidence of the prosecution witnesses, there is no reliable evidence to establish a prima facie case against the appellant.




Our Decision


[34] The appellant gave an unsworn statement from the dock. His statement is not subject to cross examination by the prosecution, nor can he be questioned by the trial judge. Its veracity is not tested. The trial judge is free to give the dock statement such weight as he thinks fit and he can take it into consideration in deciding whether the prosecution has proved its case. In Dato’ Seri Anwar Ibrahim v PP & Another Appeal [2015] 2 CLJ 145 the Federal Court observed at p.199 as follows:


“In law, a trial judge will not give much weight to what an accused has said in his unsworn statement as he is not subject to cross examination by the prosecution nor can he be questioned by the trial judge (Lee Boon Gan v Regina [1954] 1 MLJ 103, Udayar Alogan & Ors v PP [1962] 1 MLJ 39, Mohamed Salleh v PP [1969] 1 MLJ 104, Juraimi Husin v PP [1998] 1 MLJ 537.”


The Federal Court went on to say at p.200 as follows:


“While it is true that it is within the appellant’s right to give a statement from the dock, that statement must however amount to a credible defence. A mere denial does not amount to a credible defence.”


[35] Having ascertained the evidential value of the dock statement, it is proposed to deal the grounds of appeal Nos 2, 3, 4, 5 and 6 together. The gist of the complaint was directed against PW18 in that there were discrepancies between her evidence, the evidence of PW4 and the FIR exhibit P98.




[36] It is therefore necessary to examine the testimony of PW18. In brevity, it is as follows. PW18, a waitress employed at A.L. Baik Bistro. She was cleaning the outside of the said Bistro when she saw a man (whom she later identified to be the appellant by his physique) approached and stabbed the first victim (later identified to be Aidan) using a folding knife, exhibit P41B. The second victim (later identified to be Neil) was also stabbed twice at the front of his body before he ran towards the bus stop. When Neil turned towards the bus stop, he was again stabbed twice by the appellant at the back of his body. Neil subsequently collapsed unconscious in front of the bus stop. The appellant then walked towards his car. PW18 described the entire incident happened “so fast”. PW18 testified that there were two other persons waiting at the back of a white Perodua Viva car at the time of the attack. The car was later traced and identified. It was owned by PW11.


[37] As PW11 drove passed PW18, she saw the car’s number plate was QAW 4913. She remembered the number and then she frantically called L/Cpl. Nurazizah (PW4) for police assistance. PW4 was on duty at the inquiry office counter at Balai Polis Sentral, Kuching. In a panicky and nervousness state, PW18 had erroneously informed PW4 that there were three male persons had stabbed a foreigner. Later in her testimony in court, PW18 said that she had corrected the information given to PW4. Unfortunately PW4 only corrected the spelling of “All Bike Bistro” to read A.L. Baik Bistro. PW4 corrected it by making a corrective police report which was tendered as exhibit P99. PW4 said in cross examination at p 172 of the Record of Appeal, Vol. 1 as follows:




Q So the information you received is that three male persons attacking one male foreigner?


A Nesty informed three male persons alighted from the car and attacked the foreigner.


And in re-examination at p.173 of the Record of Appeal, Vol. 1 PW4 said as follows:


Q So Nesty never told you that the three male persons attacked the male foreigner?


A She used the word “tikam” and I asked her how many person and she told me that there were three male persons.


[38] After the police arrived at the scene, PW18 recounted the events to Inspector Dorairajah (PW7). No doubt there were some discrepancies pertaining to the initial information given by PW18 to PW7 and PW4. However, that does not demolish the crux of the prosecution case, nor it is indicative of falsehood on the part of PW18.


[39] The discrepancies relating to what was said immediately after the violent crime in the FIR, exhibit P98, cannot be considered in isolation as a definite sign of falsehood relating to the exact number of the assailants. More so, when the initial information was given to PW4, it was made at the spur of the moment with the sole purpose to save the victims. In Hercun Singh v PP [1969] 2 MLJ 209 where the Federal Court said:


“When a first information report contains an omission as to an important fact relied upon by the prosecution, the omission is important and in the absence of any other evidence, the court may in a given case refuse to




consider the evidence of the informant on that fact because of such omission. For a correct appraisal of the effect of omission as


contradicting the informant it is essential to keep in view the circumstances in which the report was lodged.


For instance, an omission in a report lodged under the press of events should not have the same significance as one in a report lodged after cool calculation.


In short, it is wrong to hold up the first information report as a sure touchstone by which the compainant’s credit may invariably be impeached. It can be used for that purpose with discrimination, in much the same way as previous statements by the witness are used, so that irrelevant errors in detail are not given exaggerated importance, nor omissions, objectively in the light of surrounding circumstances.”


[40] PW18 had explained that the phone call she made to PW4 and the information she gave was made in a panic state wherein her overriding concern at that time was not, about the assailant, but to seek or render immediate medical assistance to be given to the victims: see p.648 of the Record of Appeal, Vol. 4, where PW18 testified as follows:


Q During the conversation, did you tell this policewoman that there was three men stabbing these two male foreigners?


A At first, I informed that there were three persons attacking and stabbing but my conversation during that time was in a chaostic manner and that policewoman told me to stay calm so that I could relate the actual incident because during that time I was nervous and panic.”


She continued at pp.668 and 669 of the Record of Appeal, Vol. 4 as follows:




Q As far as the alleged incident that you saw on the morning of 6.8.2014, three men that you reported seeing coming out from the car stabbing one foreigner, suddenly become one man stabbing two foreigners. Why do you suddenly minus three men become one man?


A In actual fact as I have informed before, there were three persons coming out from the car. One of them went up and attack and stab the two foreigners and the other two were waiting at the rear outside of the car. At my first evidence which I gave to policewoman Norazizah because at that time when I relate this I was panic and my intention was only to save the two victims.”


[38] In her initial information, she said that three male persons were attacking the foreigners because she had seen three persons coming out from PW11’s car. This can be seen at p.657 as follows:


Q How is that the three persons suddenly became one person as your evidence on Friday is that three persons stabbed two foreigners?


A At that time when I called the police, I was nervous and panic. I tried to relate information to the said policewoman and inadvertently, I said three persons because I saw three persons coming out from the car.


[41] This was consistent with the manner the information was obtained by PW4 from PW18. PW4 explained in her evidence as follows:


Q So Nesty never told you that the three male persons attacked the foreigner?


A She used the word “tikam” and I asked her how many person and she told me there were three male persons.




[42] Though, there was some confusion regarding the initial information given by PW18 to PW7, namely, she told PW7 that only one assailant stabbed the victims (which she further explained at p.656 that Inspector Dorairajah was more concern on the registration number of the car). However, PW7 testified that the only information he had received from PW18 was pertaining to the particulars of the car. The fact that she had seen only one assailant stabbing both the victims which was inconsistent with her prior information was explained to ASP Rejali (PW23) when her section 112 statement was recorded on August 7, 2014 – a day after the murder. PW23 requested PW18 to narrate what she had actually saw, without the necessity to lodge another police report to correct the FIR, exhibit P98. Their exchanges were reflected in the cross-examination of PW18 and PW23 below:


The cross examination of PW18 at p.699 of the Record of Appeal, Vol. 4 runs as follows:


Q Did you tell ASP Rejali that you made a mistake in giving information to Norazizah?


A Yes


Q And did you tell ASP Rejali that you want to rectify your mistake with Norazizah?


A Yes


Q And what did ASP Rejali say?


A ASP Rejali asked me to give statement according to what


happened on that day.




The cross examination of PW23 at p.862 and p.863 of the Appeal Record, Vol. 5 reads as follows:


Q We will start with Nesty. According to the evidence of Nesty, she said that she made a mistake about the report and had told you about the mistake on 7.8.2014. Can you confirm that?


A Nesty Anak Jeprin did inform me the information that she gave to the police for the FIR are not accurate at the time when she gave the evidence. At the time when I recorded her statement and she relates the actual incident at that time.


Q Is it true that she told you of her mistake on 7.8.2014?


A Yes, she did tell.


Q Did you make a contemporaneous note to that effect on 7.8.2014 after she informed you about her mistake at that time?


A I only correct in in the statement.


[43] The FIR, exhibit P98 does not contain the entire case for the prosecution. The FIR was merely to put the investigation into motion of an alleged crime. The fact that the FIR contained contradictory statements pertaining to the number of attackers should not be exaggerated in the circumstances of this case. It is not fatal to the prosecution’s case. The shortcomings in the FIR has been explained and corrected in the ensuing investigation by the police. In Timhar Jimdani Ong & Anor v PP [2010] 3 CLJ 938, the Court of Appeal held, inter alia:


“A first information report or any police report need not contain the entire case for the prosecution. Its main purpose is merely to give




information of an offence. The information contained in the police report, thus may only state the brief details of the time, and place of the alleged offence and the particulars of the offenders if available. Further details will surely be recorded later by the investigating officer in any statements recorded from potential witnesses including that of the arresting officer himself. Thus any omission or shortcomings in that police report cannot in our view be fatal to the prosecution’s case or be held to be materially inconsistent with its narration of the facts during the trial.”


[44] The approach and treatment of the FIR by PW23 was entirely consistent with the principles expounded in the case of Timhar Jimdani (supra): see p.889 and 890 of the Record of Appeal, Vol. 5 where PW23 testified as follows:


Q I refer you to Q&A 12 where you were asked (concerning the reason ASP Rejali had not asked Nesty to make a correction report as investigation was ongoing). Can you explain this?


A The police investigation has started after we have received the FIR and from there we will carry out further investigation to gather all the evidence and proof in more detail and clear before we refer this case to Attorney-General’s Chambers for further instruction and I did not instruct PW18 to lodge a report as to her mistake because FIR had been lodged.


Q You also disagree that the failure to advise Nesty. To what extent this FIR is important to your investigation?


A The FIR as for the police to commence investigation where we will conduct further investigation as to the truth of the matter where we will record statements of witnesses and the police will gather the evidence and proof during the process of investigation before this case being referred to the AG Chambers for further instruction.




[45] The contradictions between PW18’s evidence and her initial information reduced to become the FIR, exhibit P98 has been satisfactorily explained. That three men had stabbed one foreigner was simply a piece of information erroneously given under pressing circumstances without ample time to properly reflect on the incident. PW18 had later corrected in her section 112 statement given to PW23. As can be seen, on the totality of the evidence before the court, the other evidence supported the testimony of PW18, that is, the appellant was the solitary assailant who had stabbed both the deceased, Aidan and Neil.


[46] The account and explanation by PW18 had been carefully considered at pp 1014 and 1015 of the Record of Appeal, Vol. 6 by the learned trial judge who ruled as follows:


“A FIR is to trigger the commencement of a police investigation into a crime. Whatever the contents of such a report represents the truth or otherwise will depend on the outcome of the investigation. The truth will be revealed only after final investigation. Hence it cannot be accepted as gospel truth on its face value. The circumstance of the case is that PW18 just happened to be just outside her shop doing the routing cleaning work at about 4.00 am and the incident of stabbing just happened all of the sudden in front of her eyes which I have no doubt that it must indeed have shocked her seeing the Accused stabbing the deceased with a sharp weapon. She could have shut her eyes and went off but she took the step of a good civic minded person by calling the police seeking their urgent presence with the ambulance as PW18’s prime concern at the material time was to save the lives of the two (2) victims. She had in fact nothing to gain for doing so. I find there is absolutely no apparent reasons for PW18 to lie to PW4 when gave the information especially so when the Accused, the victims and all others including PW11, PW13 and Remy were strangers to her. Under such circumstances, I am of the view that her errors as indicated in the FIR are genuine errors caused by inadvertence on account of reflection of being nervous




and panic. In the course of PW18’s oral testimony in Court, I have paid particular attention to her demeanour in view of her admissions in the FIR as she narrated the actual event that she saw that morning. I find PW18 to firm and frank to admit the errors in the report and her explanation as to why she could have made the errors; she was in a true state of nervousness and panic as it was the first time that she saw with her own eyes such a stabbing incident but she was certain in her testimony. I find PW18’s explanation to be cogent and reasonable for a young lady of 27 years age witnessing such a serious crime of violence in the early hour of that morning.”


[47] There is no error in the finding of the learned trial judge who has had the benefit of an audio visual of PW18 while she narrated the story in the witness box and the trial judge paid particular attention to her demeanour as she gave her evidence. Upon careful consideration, the trial judge found PW18 to be “firm and frank to admit the errors in the FIR.” Her explanation was cogent and reasonable. His Lordship accepted PW18’s evidence. The position of PW18’s evidence in law is stand guided by the case of PP v Waly N. Baing [1995] 3 CLJ 415 where the court observed at p.430 as follows:


“Chitaley & Rao on the Code of Criminal Procedure, 1973, also speak of explaining away the contradictions and they went further when they state, to quote again: “A defective first information report cannot destroy the otherwise credible and clear fabric of which the prosecution case is built or shake the foundation provided by veracious testimony bearing out the prosecution story (15).” On the authorities which I have referred to, I am of the view that a first information report cannot prevent the admission of evidence to explain a mistake that resulted in the erroneous particulars in a first information report. A first information report does not prevent other witnesses other than the informant, even if there was no mistake, from adducing evidence which is at variance with what is stated in the first information report since the other witnesses are not “parties to such




instrument” as spelt out in s.92. I am also of the view that, if the contradiction can be accepted as having arisen as a result of the mistake, the defective first information report by itself should not stand in the way of the prosecution establishing a case beyond reasonable doubt if there is other evidence.”


[48] The evidence of PW18 that she saw only one assailant stabbing both the victims and her testimony was corroborated by the evidence of PW11, PW13, the medical, scientific and forensic evidence of the DNA. The murder, seemingly stemmed from a need to satisfy the appellant’s ego, this was evidenced from the words “mau test power” uttered shortly before the attack. The appellant brazenly took out a knife from his rear trousers pocket. On the way home, after the attack, the appellant approached PW12 requesting him to clean the blood-stained folding knife exhibit P41B which PW12 did. PW11 also removed the number plate of his car to avoid being linked to the murder. It was evident that PW11 was frightened. The appellant, on the other hand, was brave enough to request PW12 to clean the folding knife, P41B and even went on to admit that the said knife was used to injure the foreigners. The said knife was detected with the mixed DNA profiles of both the deceased, Aidan, Neil and the appellant. This is consistent with the evidence of PW11, PW13 and PW18 that the appellant, was the lone wolf assailant.


[49] The medical opinion of the Consultant Forensic Pathologist, PW14 too, supported the evidence of PW11 and PW13 and PW18. He opined that the stab wounds seen on both the victims were more likely than not to have been caused by one assailant for otherwise he would have found multiple stab wounds numbered more than 5 on both the deceased. The folding knife, exhibit P41B was shown to PW14 who said




that it was consistent to have been used as a weapon to inflict the injuries on both the victims. In other words, exhibit P41B was the murder weapon. From the nature of the fatal wounds, PW14 opined that the victims’ blood would most likely came into contact with the assailant. In this case, a Levis’s blue jeans exhibit P38C which was recovered from the appellant was stained with three spots of blood which, upon analysis, confirmed to be the DNA profiles of both the deceased, Aidan and Neil. This evidence is supportive of the opinion evidence of PW14.


[50] To recap, assuming the evidence of PW18 is discarded (which is denied), there are other overwhelming evidence in the form of – the ocular evidence of PW11, PW13, PW12, medical, scientific, DNA evidence and circumstantial evidence – to establish both the murder cases beyond reasonable doubt: see Waly N Baing, supra.


[51] As regard the appellant’s defence stated in his statement exhibit D150, we unanimously agreed that the trial judge adopted the correct principle in his assessment of the appellant’s unsworn statement. The trial judge said at p.1071-1072 of the Record of Appeal, Vol. 6 as follows:


“Having considered the defence in the unsworn statement in the light of the prosecution case, I find the accused’s defence to be riddled with improbabilities, unexplained gaps or doubts and bare denial that it cannot be regarded in any way to have raised a reasonable doubt even on the assumption that this Court does not believe the accused. Such defence viewed in its totality is a sham or an afterthought defence inclined to pervert the course of justice. The entire defence is in fact discredited by the undisputed and unchallenged evidence of the prosecution. In the circumstances, I must hold that the defence has failed to raise a reasonable doubt in the prosecution case.”




[52] We hasten to add that the appellant’s defence is also a mere denial which does not dislodge the prosecution’s case. Put simply, the appellant’s bare denial does not amount to a credible defence.




[53] In conclusion, we found there is no appealable error committed by the trial judge. The conviction and sentence was safe. Accordingly, we unanimously affirm the conviction and sentence imposed by the trial judge.




Date: 28 January 2016 (ZAMANI A. RAHIM)




Court of Appeal Malaysia




For the Appellant : Mr. Anthony Tai


Messrs Anthony Tai Advocates Lot 317, 2nd Floor Lorong 12, Jalan Rubber 93400 Kuching, Sarawak


For the Respondent : Puan Norinna Bahadun dan


Tuan Awang Armadajaya bin Awang Mahmud Timbalan Pendakwa Raya Jabatan Peguam Negara Putrajaya



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