PP v. IRAWADI MOHAMMAD
HIGH COURT, SHAH ALAM
MOHD YAZID HAJI MUSTAFA JC
[CRIMINAL CASE NO. 45-80-2004]
26 JANUARY 2010
IN THE HIGH COURT OF MALAYA IN SHAH ALAM
[CRIMINAL CASE NO. 45-80-2004]
BETWEEN
PUBLIC PROSECUTOR
AND
IRAWADI MOHAMMAD
GROUNDS OF JUDGMENT
On 11th of November 2009, I had convicted the accused on the charge of murder under Section 300 of the Penal Code and sentenced the accused to be hanged by the neck until death under Section 302 of the Penal Code. The original charge against the accused reads as follows:
"That you, on 26 July 2004, between 3.30 pm and 5.00 pm at No, 2-1-6, Block ST2, Apartment Sri Tanjung, Jalan 7/1D, in the state of Selangor Darul Ehsan did commit murder, namely by causing the death of Norzi Ayu binti Mohd Noor and as such you have committed an offence that is punishable under S. 302 of the Penal Code."
The prosecution has called 20 witnesses to testify on behalf of the prosecution. Before proceeding further, it is pertinent to note that I have not had the pleasure of hearing the testimony of any of the 20 prosecution witnesses and neither did I have the opportunity of hearing the submissions at the end of the prosecution case. In fact, I was not the presiding judge having the hearing of these matters. From the record of the file minutes, on the 16th of July 2007, the first presiding judge had transferred the case to the second presiding judge with the agreement of the deputy public prosecutor, the former defence counsel and the accused himself. The second presiding judge then proceeded to hear submissions of the deputy public prosecutor and the former defence counsel and had delivered her decision on the 19th of June 2008 that the prosecution has established a prima facie case on the charge against the accused. As such, the findings at the end of the prosecution case in this judgment are based solely on a reading of the notes of evidence and evaluation of the relevant exhibits from the record. The second presiding judge had called the accused to enter his defence and the hearing date was fixed to be continued on the 3rd and 4th of November 2008. On the 3rd of November 2008, the court was informed by the deputy public prosecutor that the former defence counsel's practicing certificate had been cancelled thus the latter is barred from practising as an advocate and solicitor.
When I took over conduct of this matter upon my transfer to this court, the accused had conveyed his wish to have the trial heard before the first presiding judge. This court had also instructed the accused to appoint a counsel of his choice. Alternatively, the accused was asked whether he would wish to have a court appointed counsel. Upon being informed by the accused as to his wish to have a court appointed counsel, a new defence counsel was appointed by the court sometime in May 2009. Before the continued hearing of the defence case could begin, the defence counsel had requested that the accused be sent for psychiatric observation. This court had received the medical report regarding the psychiatric observation of the accused from Hospital Bahagia on 24th of July 2009 that confirmed that the accused was not suffering from any mental disorder especially on the day of the incident on 26th July 2004 and was fit to stand trial. As to the request of the accused to have the matter heard before the first presiding judge, it is suffice to state that the newly appointed counsel did not apply for such directions from the Chief Judge of Malaya thus the case was continued before this court.
The facts as derived from the prosecution evidence
On 26th July 2004, about 3 in the afternoon, Siti Suhana binti Hamdan (SP6) was locking her motorcycle at the parking lot beneath Block ST1 when she saw the victim at Level 1 of Block ST2 which was opposite Block ST1, waving her hands at the former. At that particular time, SP6 did not know the victim. The victim was in red clothing and wearing a blue scarf. SP6 then asked the victim whether there was anything the matter. The victim had thrown a piece of paper towards SP6. SP6 went over to the thrown piece of paper and discovered it was a note (Exhibit P13) which reads "Tolong call nombor ni 016-3618144 (Azman) " [translated as "please call this number 016-3618144 (Azman")] followed by the words "emergency!!! suruh datang sekarang ... Ayu" (translated as "emergency!!! ask to come now ... Ayu").
After throwing out the note, the victim then hurriedly closed the window of her flat. SP6 then drove her motorcycle in search of police personnel which she found at a nearby restaurant. SP6 met with Corporal Hajaizi bin Jaafar (SP9) at the restaurant and informed the latter what she had seen and showed the contents of the note. SP9 then dialed the telephone number on the note and Instructed SP6 to speak with the person whose number was stated on the note viz Azman bin Mat Zain (SP4). The note was kept by SP9 who later passed the note to the investigating officer (SP20) for the present case.
SP4 was told by SP6 to go over to the victim's flat because of an urgent matter. At that particular time, SP4 was working at the security office of 
SP4 testified that he had the suspicion that the accused was inside the flat with the victim, therefore he had called out to the accused to open the door. After almost half an hour attempting to persuade the accused to open the door, SP4 had walked down to the ground floor where he had taken a stepladder from a lorry that was parked nearby. SP4 had then climbed up to the victim's flat and upon discovering that the door at the rear balcony was similarly locked, SP4 had opened the rear balcony window and opened the backdoor from the inside. SP4 then entered the flat into the kitchen. SP4 had opened the kitchen door and walked into the living room. As he had entered the living room, SP4 saw the victim and the accused heading towards the front entrance of the flat. According to SP4's testimony, the accused, upon seeing SP4 in the flat, had grabbed the victim by her neck while holding a knife in his left hand. The accused was holding the knife and pointing it towards the victim's abdomen. SP4 then attempted to pacify and persuade the accused to release the victim. SP4 spoke to the accused and reminded the accused to be patient, to think; of God, that the accused was still a young man and could meet with other women, to leave the victim and SP4 would not report the matter to the police. According to the testimony of SP4, the accused uttered the following words upon hearing SP4 speak "Biar orang lain tak dapat Norzi Ayu" [translated as "Let others are unable to be with Norzi Ayu"].
SP4 had tentatively walked towards the main door and closed the main door whilst the accused and the victim moved away from SP4. SP4 tried to talk to the accused into releasing the victim for about half an hour. It was then that the victim's car alarm had gone off. The keys of the victim's car were being held by the accused and the latter had tried to shut off the alarm. The victim had taken the keys from the accused and went into her bedroom where she managed to shut off the alarm. The accused followed the victim into her bedroom, shut and locked the bedroom door. SP4 had knocked on the bedroom door and called out to the victim several times but was unanswered. The victim and the accused remained in the bedroom for about 5 to 10 minutes. SP4 took a bunch of keys on a nearby table and attempted to open the bedroom door. On the second attempt, the bedroom was opened.
Upon opening the bedroom door, SP4 saw the accused lying on his back at the head of the bed while holding the knife in the latter's left hand. The victim was lying on her stomach at the end of the bed. SP4 then jumped onto the accused and attempted to wrestle the knife from the accused while the latter attempted to stab SP4 in his stomach. SP4 then told the victim to leave the room and the victim complied with the direction. SP4 managed to escape from the accused, left the bedroom and tried to shut the bedroom door but was hindered by a piece of cloth underneath the door. It was then that SP4 saw Amri Sardi bin Yusof (SP5) in the flat. SP4 then asked SP5 to hold the door shut to prevent the accused from escaping from the bedroom.
SP5 had gone to the victim's flat on the fateful day upon the request of the victim's boyfriend, Mohd Izral bin Yahya Umpong (SP10). SP10 was in contact with the victim during the morning of the fateful day when SP10 discovered that the victim was unwell and was not coming in to work. Later in the afternoon SP10 tried to contact the victim on her hand-phone but failed. Since SP10 did not possess a vehicle, he had called SP5 and requested the latter to go over to the victim's flat to check out her condition.
SP10 and the victim had met at work where the victim was working as a research officer and SP10 was an IT technician at IMR. SP10 testified that he had knowledge that the victim and the accused were lovers since university days but that in 2004, the relationship had ended. SP10 and the victim had even met up with the accused to discuss regarding the blossoming relationship between the victim and SP10 with the accused about 1 month prior to the incident on 26th July 2004.
The second time SP10 met with the accused was at the Billion Shopping Centre in Bangi where the accused and SP10 had verbally argued regarding the relationship between SP10 and the victim. The third meeting was 1 day prior to the incident on 26th July 2004 at the Silat Competition held in
When SP5 arrived at the victim's flat, SP5 attempted to contact the victim on her hand-phone but failed. SP5 then went up to the first floor where the victim's flat was located and saw that the grill door was opened but the main door was closed and locked. SP5 testified that he saw that the lock for the grill door was lying on the floor outside the flat. SP5 took the lock in order to make a police report. It was then that he heard loud voices from inside the flat. SP5 proceeded to the ground floor and called the victim's hand-phone. After the second call, a man's voice answered the call with "Apa hello-hello" upon SP5 speaking "hello" into the phone. Then the call was disconnected. SP5 had sent a text message to the victim's phone stating that he is calling the police before he went up to the flat again. Upon walking towards the victim's flat, SP5 saw the victim lying on her back at the front entrance of the flat. The grill door and the front door were both opened. The victim was lying on her back with the upper part of her body positioned outside the front entrance and the lower part of her body sprawled inside the flat. SP5 went over to the victim and asked the latter where her car keys were placed. The victim replied that her car keys were with 'him' whom SP5 believed to be the accused.
At the same time, SP5 heard loud shouting voices from the inside of the flat. SP5 went into the flat and saw the victim's car keys placed on top of a washing machine and SP4 was holding onto the door knob of the victim's bedroom door. SP5 was asked by SP4 to assist in ensuring the bedroom door was closed and was told by the former to prevent the accused from leaving the bedroom. SP5 complied with the instruction and held onto the doorknob of the bedroom. According to SP5, the door of the bedroom was not fully shut therefore SP5 was able to see into the bedroom where the accused was walking restlessly whilst holding onto a bloodstained knife. The accused then had forcefully grabbed the door knob from inside the bedroom and escaped. SP5 had run away towards the outer part of the flat while being chased by the accused while still holding onto the bloodstained knife. According to SP5, the accused had attempted to attack SP5 and SP4 with the bloodstained knife. At that precise moment, SP4 had pulled the victim away from the flat. SP4 had shouted several times to the accused to leave the premises. After the third directive, the accused had left the premises. The victim was assisted by SP4 and SP5 towards a car and the victim was driven by SP4 to the Kajang Hospital. After assisting the victim into the car, SP5 had turned back towards the flat where he had observed the accused standing near Siti Noor Aida bind Hassim (SP7). According to the testimony of SP7, she did not speak to the accused nor had the accused approached near to where she was standing in the parking lot.
The accused had run away when SP5 shouted towards the former. SP5 ran after the accused and chased the latter on his motorcycle until SP5 arrived at a nearby river. SP5 then left his motorcycle and continued to chase after the accused on foot until he arrived at a vegetable farm. Upon arriving at the vegetable farm, SP5 saw one Rajalingam a/l Perumal (SP8) who was minding goats nearby the river. SP5 yelled at SP8 to stop the accused. According to the testimony of SP8, the accused was carrying a bloodstained knife while he was running away. The accused managed to escape into some bushes on an islet at the river edge. SP5 then informed SP8 to keep watch while the former went to lodge a police report and bring the police to the place where the accused was hiding. SP5 did not return with the police to where SP8 was keeping vigil. SP8 waited for about an hour after which he left the place.
From the testimony of Chief Inspector Redzuan bin Mat Salleh (SP19), he had received information that the accused was at the Kajang Hospital on 26th July 2004. Thereafter, SP19 proceeded to the Kajang Hospital and arrested the accused at the parking lot of the said hospital. SP19 and Assistant Superintendent Wong Yuen Chuan (SP20) had brought the accused back to the scene of the crime at the victim's flat on the same day. The same parties then proceeded to the river to which the accused had earlier escaped to in order to recover the knife but to no avail. Early the next morning, SP19 and his team of police personnel once again brought the accused to the river for the same purpose but the result was the same viz that the knife was; not discovered. In fact, until the end of the present trial the knife was never discovered.
The victim was brought to the Emergency Unit at the Kajang Hospital upon being brought to the hospital by SP4. The victim was attended by Dr Azahzuddin Hamzah (SP13) who testified that he had observed that the victim was injured. In the middle of the victim's abdomen, SP13 had observed 2 stab wounds that were very deep and closely positioned. SP13 had attended to the victim for about 2-3 hours before the victim was sent to the operating theatre. Dr Ajitha Krishnan a/p Dr MP Krishnan (SP14) was the medical officer who had prepared the victim for surgery before the latter was sent to the operating theatre. While attending and preparing the victim for surgery, SP14 had occasion to ask the victim as to the cause of her injuries to which the victim replied that she was stabbed by the accused. SP14 was the medical officer who had assisted Dr Lo Hwa Loon (SP18) during the surgery on the victim. According to the testimony of SP14, the victim died on the operating table due to severe bleeding at 8.15 pm on 26thJuly 2004.
The internal examination of the victim's abdomen from the post mortem report (Exhibit P42) states inter alia that "The right renal artery was also severed. The wall of the inferior vena cava showed a large punctured wound with smooth margin 1.5 cm in diameter involving the right antero-lateral wall". The cause of death of the victim was therefore massive blood loss due to injury to the main blood vessels (inferior vena cava) caused by stab injury to the abdomen. The forensic pathologist who had conducted the post mortem on the victim, Dr Khairul Azman bin Ibrahim (SP16) testified that there were blurred signs of bruising on the victim's right cheek, right breast, behind the left chest and behind the right thigh. The bruises could not have been self inflicted by the victim and were probably caused either by a blunt object or as a result of being punched. There was also a suture on the victim's abdomen that was caused by the operation conducted on the victim. SP16 testified that the cause of death was probably caused by an external stabbing by a sharp weapon such as a knife. SP16 came to this opinion based on the information that he had received from a medical officer and the nature of the injury on the abdominal wall tissue that showed a deep wound. The injury on the main blood vessel (inferior vena cava) was a punctured wound and round in shape measuring 1.5 cm that was commensurate with a stab wound caused by a long weapon. The injury to the main blood vessel could not have been caused during the operation on the victim because the main blood vessel (inferior vena cava) is positioned behind the abdomen. The injury to the main blood vessel (inferior vena cava) is a serious injury that causes massive bleeding and could be considered as a fatal injury because the injury is difficult to stem.
Dr Seah Lay Hong, SP15 is the Head of DNA Data Bank Unit, Serology and DNA Section at the Malaysian Chemistry Department. SP15 has confirmed through his testimony that there were traces of the victim's blood on the T-shirt of the accused.
The argument of the former defence counsel
The former defence counsel had argued that SP4 and SP5 were not credible witnesses because it was not stated in their police reports (Exhibits P8 and P12) that the accused had attempted to attack them with the knife. If it were true that the witnesses were so attacked by the accused, this fact should have been stated in their police reports. As for the alleged knife, the former defence counsel argued that it was never discovered and tendered into court as an exhibit. The witnesses who had testified that the accused was holding a knife could also not give an accurate description about the knife. Thus, it could not reasonably be established whether the knife was belonging to the accused or to the victim. The former defence counsel also raised in argument that it is in issue whether the accused had actually uttered the words "Biar orang lain tak dapat Norzi Ayu". There was also no evidence that the accused was jealous of the relationship between the victim and SP5. There can also be no presumption that it was the accused who had replaced the lock on the front entrance of the victim's flat with a new lock because there were no fingerprints recovered to connect the accused with such hypothesis or presumption. SP5's testimony also consist of a contradiction with his police report because in the latter, SP5 had stated that one Ibrahim and himself had chased after the accused but later in his testimony, SP5 stated that he had chased the accused until a nearby vegetable farm where he was assisted by an Indian man.
Argument of the deputy public prosecutor
The testimony of the eye-witnesses that placed the accused inside the victim's flat and nearby the vicinity of the victim's flat is circumstantial evidence to prove that the accused had stabbed the victim. The fact that SP4 and SP5 did not state in their police reports that the accused had attempted to attack them with the knife is not a fundamental omission as this fact is not in relation to the victim. The omission is not material. There is also no contradiction in the testimony of SP4 regarding the words alleged uttered by the accused "Biar orang lain tak dapat Norzi Ayu". Even there is any discrepancy the deputy public prosecutor argued that SP4's credibility is not affected. The description of the knife could also be obtained from the testimony of SP8 that the knife is about 8 inches in length including the testimony of SP13 and SP16 who had testified that the depth of the wound was about 4-6 cm. Taken as a whole, the evidence all point to the conclusion that the accused had stabbed the victim with the intention to kill her.
Findings at the end of the prosecution case
This court has to determine whether the prosecution has established a prima facie case that the victim was dead; that the victim's death was caused by injury or injuries inflicted on the victim; that the accused had caused the injury or injuries inflicted upon the victim that led to the latter's death; and that the act of causing death was committed with the mens rea under Section 300(a), (b), (c) or (d) of the Penal Code. The learned judge in PP v. Nomezam Apandy bin Abu Hassan (No. 2) [2008] 7 CLJ 168; [2008] 1 MLJ 681 at 691 held that:-
"The duty of a judge at the close of prosecution's case in a criminal trial has been set out by Gopal Sri Ram JCA at p 104 lines 36-41; p 107 line 16 to p 109 in Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734; [2003] 2 AMR 89; [2003] 2 MLJ 65 (CA). A trial judge sitting alone must determine as a trier of fact, whether the prosecution had made out a prima facie case. He must subject the prosecution evidence to maximum evaluation. There is no burden on the prosecution to prove its case beyond a reasonable doubt at the close of the prosecution's case. This is in line with s. 180(1) of the Criminal Procedure Code. This proposition has been affirmed by the Federal Court in two weighty judgments viz Balachandran v. PP [2005] 1 CLJ 85; [2005] 2 MLJ 301 per Augustine Paul JCA (now FCJ); and PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457; [2005] 6 MLJ 393 per Gopal Sri Ram JCA. "
Death of the victim and injury or injuries had been inflicted on victim
In this judgment, the prosecution has established a prima facie case on the first two ingredients for Section 300 of the Penal Code. The death of the victim identified as Norzi Ayu binti Mohd Noor at 8.15 pm on 26th July 2004 was confirmed by the testimony of the attending medical officer (SP14) and the investigating officer (SP19). The post mortem report (Exhibit P42) and the testimony of the forensic pathologist SP16 have confirmed that the victim had died because of massive blood loss due to injury to the main blood vessel (inferior vena cava) in the abdomen caused by stabbing with a sharp weapon.
Whether the accused had the actus reus
The next issue for determination is whether the accused was the person who had stabbed the victim in the abdomen and caused the fatal injury on the latter. In arriving at the finding that it was the accused that had inflicted the injury on the victim that led to her death, this court is relying on the circumstantial evidence as testified by the prosecution witnesses and the victim's own dying declaration. In Yeap Boon Hai v. PP [2010] 2 CLJ 338; [2009] 1 LNS 230; [2009] 5 MLJ 406 at 414, the Court of Appeal held that:-
"We note that the principles governing circumstantial evidence have been authoritatively considered in Jayaraman & Ors v. PP [1982] CLJ 130 (Rep); [1982] CLJ 464; [1982] 2 MLJ 306, where the Federal Court was requested to answer the following question: Whether it is correct law in dealing with a case which relies on circumstantial evidence it does not make any difference if a court finds that in considering all the evidence it is satisfied beyond reasonable doubt that the accused is guilty of the offence or if the court says that the evidence points only to the irresistible conclusion that the accused is guilty. In delivering the judgment for the Federal Court, Suffian LP (as he then was) referred to Mcgreevy v. DPP [1973] 1 WLR 276; [1973] 1 ALL ER 503 (HL) and admirably analysed several local cases viz. ... The learned Lord President: (4) In other words, in a case depending on circumstantial evidence, it is enough if the court merely says that it is satisfied of the accused's guilt beyond reasonable doubt, without further saying that the facts proved irresistibly point to one and only one conclusion, namely the accused's guilt."
a. The testimony of SP4 and SP5
The testimony of SP4 evidences that the accused was the person who had held the knife and inflicted the injury on the victim. There are two facts which established that the accused had stabbed the victim with a knife and inflicted the injury that led to her death. Firstly, the testimony of the star eye-witnesses viz SP4 and SP5 that the accused was in the victim's flat on 26th July 2004. Secondly, the dying declaration of the victim that implicated the accused as her attacker that was made to the medical officer viz SP14.
I find that SP4 and SP5 are both credible witnesses as to sequence of events that transpired on that fateful day on 26th July 2004. In Yeap Boon Hai v. PP [2010] 2 CLJ 338; [2009] 1 LNS 230; [2009] 5 MLJ 406 at 417 the Court of Appeal held that:-
"We are of the view that no hard and fast rule can be laid down for determining the credibility or otherwise of a witness. It is only when a witness gives or makes two statements which differ in material particulars that there is ground for believing that he is not a truthful witness: per Ali J (as he then was) in Mohamed Kasdi. Hence, if in a case the prosecution leads two sets of evidence, each one of which contradicts and strikes at the other and shows it to be unreliable, then the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based, as inevitably the accused would have the benefit of such a situation: per Vincent Ng JC (now JCA) in Lee Eng Kooi."
From a minute reading of the notes of evidence, I could not discover any discrepancy, contradiction or bad faith in the testimony of SP4. In fact, SP4 was forthright about his relationship with the victim and the accused. SP4 did not attempt to shield the court from knowing the fact that he had had a romantic relationship with the victim that resulted in a confrontation with the accused at his house and in the presence of his wife and the victim. SP4's presence at the victim's flat was at the request of the victim. This fact is corroborated by the testimony of SP6 who had taken the thrown note (Exhibit P13), called SP4 and informed the latter that he had to urgently go over to the victim's flat. SP4's testimony as to the events from the time that he had arrived at the victim's flat until he had opened the bedroom door and saw the accused and the victim lying on the bed was consistent both in his examination in chief and the cross examination.
SP5's presence at the victim's flat on 26th July 2004 was at the request of his best friend who was the victim's lover, SP10. SP5 was not acquainted with the accused at any time prior to the said incident on 26th of July 2004. SP5 had indeed stated in his police report (Exhibit P12) that after the accused had escaped from the bedroom, SP5 had run towards the outside of the flat and held closed the grille door to prevent the accused from escaping. Whilst the grille door was being held closed by SP5, the accused had swung the knife towards SP5 ("acah-acah pisau ke arah saya"). SP5 had explained that the person named Ibrahim stated in his police report had indeed chased after the accused with SP5 on their respective motorcycles but that the said Ibrahim had ceased from the chase when SP5 continued on foot. The omission of the Indian man from SP5's police report is not a material or fundamental omission because the said Indian man has been identified and called to testify in court as SP8. In Herchun Singh & Ors v. PP [1969] 1 LNS 52; [1969] 209 at 211, His Lordship Ong Hock Thye as he then was) in delivering the judgment of the Federal Court held that:-
"In short, it is wrong to hold up the first information report as a sure touchstone by which the complainant's credit may invariably be impeached. It can only 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 considered in the light of surrounding circumstances."
The fact that the accused had attempted to attack SP4 was not stated in his police report is not a material omission because this fact is not relevant to establish whether it was the accused that had stabbed the victim. In the preceding passage of this judgment, I have accepted SP5's explanation regarding the mention of the said Ibrahim and not the Indian man in his police report. The testimony of SP4 and SP5 are credible as the facts which are relevant and material regarding the death of the victim had been succinctly stated in their police reports. Their testimony also finds corroboration to place the accused in the vicinity of the victim's flat from the testimony of the victim's housemate, SP7. The fact regarding the accused running away while holding a bloodstained knife was also corroborated from the testimony of the Indian man, SP8. Although the stabbing of the victim occurred unobserved by any other persons because the victim was locked in her bedroom with the accused, I am able to accept the testimony of SP4 which is corroborated by the testimony of SP5 and arrive at a reasonable conclusion that it was the accused that had stabbed the victim with the knife. Although the knife in question was never discovered and tendered into court as an exhibit, I am accepting the testimony of both SP4 and SP5 which is corroborated by the testimony of SP8 that the knife did exist and was being held by the accused on 26th of July 2004.
b. The dying declaration
The principle of law regarding the admissibility and assessment of a victim's dying declaration to which I am adhering by could be obtained from the following judgments. In PP v. Nomezam Apandy bin Abu Hassan (No. 2) [2008] 7 CLJ 168; [2008] 1 MLJ 681 at 702, the learned High Court judge held that:-
"As a general rule, the law of evidence requires the best evidence to be adduced. Exceptions do arise in order to allow the admissibility of hearsay evidence: see eg PP v. Mohamad Fairus bin Omar [1997] 3 CLJ SUPP 260; [1997] 5 MLJ 57 (HC) (p. 303, Evidence, Practice and Procedure, 2000 by Augustine Paul (now FCJ). The rationale for admitting a dying declaration is that 'where a witness is dead, it may be better to admit evidence of what he said that to deprive the court of all proof. Section 32(1) (a) allows the admissibility of a dying declaration in criminal as well as civil cases, as expressly stated under the terms 'whatever may be the nature of the proceeding in which the cause of death comes into question. A dying declaration under S. 32(1) (a) is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death. Under S. 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. The circumstances must have some proximate relation to the actual occurrence. The transaction must relate to a set of facts pertaining to the death of the victim such as the time or place of his death or about meeting someone who may be the accused."
In Seraman @ Jayaraman a/l A Adipan v. PP [2009] 5 CLJ 123; [2009] 1 LNS 177; [2009] 3 MLJ 64 at 77 the Court of Appeal held that:-
"We are of the view that the oral and written statements of the deceased have been properly admitted by the learned trial judge. We are unable to accept the appellant's contention that at the time of making the dying declarations the deceased was heavily sedated with painkillers which could impair his thinking process and he could also suffer from "Korsakoff Syndrome". It is to be noted that when the deceased made his statement to PW10 he was not referred to PW16 yet and the time there was no evidence to suggest that he had been given morphine-based painkillers. Yet his statement to PW10 and the statements he gave later to the other witnesses are consistent. As such how could it be said that the deceased's thinking process was impaired because of the morphine-based painkillers. The learned trial judge has made a finding of fact that the deceased had the capacity and clarity of mind to remember facts and details. With regard to 'Korsakoff Syndrome' the defence's own witness, DW4, stated that a person could not suffer 'Korsakoff Syndrome' from burns. No question was asked by the defence to PW16 on this during cross-examination."
SP14 was the attending medical officer who had prepared the victim in the emergency unit before the latter was sent to the operating theatre. SP14 had attempted to sooth the victim. From the testimony of SP14, the victim was conscious when she was at the emergency unit until she was delivered to the operating theatre. While at the emergency unit, the victim had informed SP14 upon being inquired that it was the accused that had stabbed her. SP14 is an independent witness and an experienced medical practitioner. SP14's testimony that the victim was conscious during the conversation in which the accused was identified as her attacker is accepted by this court. Based on the testimony of SP14 and applying the principles as enunciated in these two judgments, I am allowing into evidence the victim's dying declaration to prima facie establish that the accused had inflicted the injury that eventually led to her death.
Whether the accused had the mens rea to murder the victim
The principles in which this court is to abide in assessing the facts and making a finding that the accused had the intention to murder could be obtained from the following judgments. In PP v. Chong Chai [2006] 6 CLJ 39; [2006] 3 MLJ 612 at page 621, the High Court held that "In my judgment, mens rea in the sense of intention or knowledge being a mental element and a question of fact is not capable of being established by way of direct evidence: Wing Commander Briggs in Re Eric Woodford [1946] 2 MLJ 19 at p 21. It has to be gathered from indirect evidence by reference to all the facts and circumstances prevailing in each particular case. In this regard, the accused's intention of causing bodily injury to the deceased may be gathered from the accused's act in particular and the entire evidence adduced for the prosecution in general."
In PP v. Nomezam Apandy bin Abu Hassan (No. 2) [2008] 7 CLJ 168; [2008] 1 MLJ 681 at 695, the High Court held thats - "Mens rea in the sense of intention or knowledge being a mental element is not capable of being established by way of direct evidence. It has to be gathered by way of indirect evidence, taking into consideration all the facts and circumstances prevailing in each particular case. In this regard, the accused's intention of causing bodily injury to the deceased may be gathered from the accused's act or acts."
One of the factors that could assist the court in making an inference as to the intention to murder is the nature and extent of the injury inflicted on the victim. In the Federal Court case of Tham Kai Yau & Ors v. PP [1976] 1 LNS 159; [1977] 1 MLJ 174 at page 176, it was held that - "Whether the offence is culpable homicide or murder depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide, if it is the most probable result, it is murder. It is culpable homicide if the bodily injury intended to be inflicted is likely to cause death; it is murder if such injury is sufficient in the ordinary course of nature to cause death."
In Nor Hasnizam bin Ab Latif v. PP [2002] 1 CLJ 49; [2002] 1 MLJ 154 at 158 the Court of Appeal held that - "On the question of intention to kill, it is a matter of inference from the nature of the wounds and it is pertinent to refer to the case of Tan Buck Tee v. PP [1961] 1 LNS 130; [1961] MLJ 176 at p 179 where Thomson CJ (as he then was) observed: There was the body with five appalling wounds on it, wounds penetrating to the heart and liver, which must have been caused by violent blows with a heavy sharp instrument like an axe. In the absence of anything else, whoever inflicted those blows must have intended to kill the person on whom they were inflicted."
Upon being brought to the Kajang Hospital, the victim was firstly treated by SP13. SP13 was the medical officer that had the initial observation as to the nature of the wound to the victim's abdomen. SP13 had testified that based on his observation, the wound to the victim's abdomen consists of 2 stab wounds that were closely positioned and deep. The post mortem report (Exhibit P42) an4 the testimony of the forensic pathologist, SP16 have established that the fatal injury inflicted on the victim was to her abdomen wherein the inferior vena cava/the main blood vessel was punctured. From the testimony of SP16, it is further established that the puncture to the inferior vena cava is 1.5 cm in diameter which is testament to the fact that the weapon that was probably used was a sharp and long knife. It is also established that the injury to the inferior vena cava at the victim's abdomen had resulted in massive blood loss. SP16 had testified that the wound was difficult to stem and the massive bleeding would ordinarily have caused death by virtue of the seriousness of the wound. In fact, the victim had died on the operating table a few hours after being brought to the hospital on 26th of July 2004.
In my judgment, I find no fault regarding the testimony of both the forensic pathologist, SP16 and the medical officer, SP13. SP16 is a forensic expert with the relevant experience in conducting post mortems in 3000 cases as at the date of his testimony in court. I find that SP16 has the requisite expertise arid knowledge to determine that the victim's death was directly resulted from the injury to the abdomen. As for SP13, he is a medical practitioner of 20 years. I find that SP13 is competent to testify as to what was observed regarding the nature of the injury to the victim's abdomen. InPP v. Muhamed bin Sulaiman [1982]CLJ 292 (Rep); [1982] CLJ 540; [1982] 2 MLJ 320 at 322 His Lordship Suffian LP (as he then was) in delivering the judgment of the Federal Court held that - "As to the question whether or not Mr Lum is an expert, it is true that this is a preliminary question to be determined, but it is & question upon which, in practice, considerable laxity prevails. This is because while the expert must be "skilled", he need not be so by special study, he may be so by experience; and the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility."
Recently, the Court of Appeal had occasioned to deliver a judgment regarding inter alia expert evidence in Chan Kwee Fong v. PP [2010] 3 CLJ 671; [2009] 1 LNS 1147; [2010] 1 MLJ 441 at 460 where it was held that - "The reception of expert evidence is governed by s. 45 of the Evidence Act 1950. It sets out the situations in which expert opinion evidence is admissible. An expert evidence is based on his training and experience. Expert witnesses have the advantage over lay witnesses by virtue of their particular skill or training. This enables the experts to form opinions and to draw inferences from observed facts and it would also enable them to identify facts which may be obscure or invisible to a lay witness. An expert witness just like a witness of fact has to give evidence on oath and he may be cross-examined on it. However, the expert must give evidence of his qualifications so that the court will be able to consider his opinion evidence."
In relying on the post mortem report and the testimony of SP16, I am satisfied that the death of the victim was directly caused by the injury to the inferior vena cava in her abdomen that was inflicted by the accused. I find that the injury inflicted on the inferior vena cava is serious and only possible if inflicted with a greater force than if the victim had been accidentally injured. The depth and nature of the injury as testified by the forensic pathologist and the medical examiner is evidence that the injury was intentionally inflicted on the victim by the accused and not as a result of an accident. The death of the victim was therefore not resulted by any other reasons such as negligence of the doctors during the operation.
The corroborating evidence as to the intention of the accused to commit murder is inferred from the acts of the accused as testified by SP4. As I have reiterated in the above passages, SP4 is a credible witness regarding the events that occurred inside the victim's flat on 26th of July 2004. The accused had locked the victim and himself in the room while he had held a knife for about 5-10 minutes. This is the most incriminating fact, apart from the post mortem report and the testimony of the forensic pathologist, against the accused in establishing that his intention was to murder the victim. Even during the confrontation with SP4 in the hallway, the accused had held the knife in his hand. The investigating officer had confirmed that there was a broken chainsaw piece at the front entrance of the flat to prove that the accused had broken into the victim's flat on 26th of July 2004. Furthermore, SP5 had testified that the accused had run away from the scene of the crime and hid in some bushes at a nearby river when SP5 with the assistance of SP8 had chased after the accused. Based on the above reasons, I am satisfied that the prosecution has proven a prima facie case against the accused on the charge of murder.
The defence case
The accused has chosen to give evidence from the witness stand. The version of facts as testified by the accused correlate to the facts as testified by SP4 and SP5 but for a few differences. According to the accused, the victim and he were still lovers and planning to get married in 2004. SP10 was merely the victim's colleague and not her current lover. A day prior to the fateful day on 25th of July 2004, the accused was at the Silat Tournamentin
On 26th of July 2004, the accused had tried to call the victim on her cell phone but his attempts went unanswered. It was due to worry over the victim's health that prompted the accused to drive over in his motorcycle to her flat. The first attempt to enter the victim's flat was done by using a duplicate key that the victim had given the accused. The accused discovered the grille door lock had been changed thus he decided to cut the lock using a chainsaw that he had brought with him. Once inside the flat, the accused had found the victim resting in her bedroom. After prodding the victim to go to the hospital, the victim had arisen to get ready. The accused had closed and locked the front door and had waited for the victim to get dressed to go to the hospital. After almost 1 hour, the victim was ready and the accused was assisting her out the front door when he had heard noises from the kitchen area.
The accused had walked into the kitchen and he had seen a hand from outside the window. The accused had grabbed a knife from the kitchen and walked back to the front hall to where the victim was waiting. It was then that SP4 had appeared from the kitchen area and prevented the accused and the victim from leaving the flat. All three had remained in the hall for almost half an hour discussing about the incident whereby the accused had confronted the former at his house and in the presence of his wife regarding the relationship between the victim and SP4. The accused and SP4 had quarrelled. The victim was holding onto the arm of the accused throughout the quarrel with SP4. The accused and the victim could not leave the flat because SP4 had re-locked front door. After seeing that SP4 still refused to allow the victim and the accused to leave the flat, the accused coaxed the victim to go into her bedroom in order for the accused to settle the matter with SP4.
The victim had refused and the accused then brought her into the room and locked the door. The accused had locked the bedroom door to ensure that the victim did not get upset with the quarrel between the accused and SP4. The accused had carried the knife into the bedroom with the victim and had placed the knife on his side on the bed. The accused had wanted to leave the bedroom to speak with SP4 but the victim prevented him from doing so. There was a tussle with the accused trying to leave the bedroom and the victim attempting to stop him. The accused had taken the knife from the bed and tried to walk out of the room. On his way out of the room, the victim had grabbed his left arm from behind. The accused had slipped and they had both fallen to the floor with the accused lying on top of the victim. The knife which the accused had held in his hand had accidentally stabbed the victim in her stomach.
During re-examination, the accused had testified that the victim had grabbed his arm with such force (despite her being ill on that day as testified by the accused) that resulted in the victim slipping to the floor and dragging the accused to fall on top of her. The accused had taken the knife when he had tried to leave the room because he had feared certain harm from SP4 and the knife was for protection. The accused had carried the victim and placed her on the bed. The accused had pulled the knife out of her stomach and had attempted to stem the blood flow by tying a yellow sash around the victim's stomach. During that time, the victim's telephone had begun to ring and the accused had answered the call. He heard a man's voice asking saying 'hello' but he had replied with 'apayang hello' before switching off the telephone.
During cross examination, the accused stated that the victim had been crying since the quarrel between the accused and SP4 in the hallway. The accused had attempted to calm the victim down while they were in the room. The victim was sitting on the bed while the accused was standing beside her. The accused was still holding the knife in his hand. It was then that the victim's telephone had begun to ring and the accused had angrily answered the call. SP4 had entered the room and attacked the accused. The accused had fallen onto the bed and SP4 had held both his arms. During the struggle between the accused and SP4, the victim had gotten off the bed and walked towards the hall. SP4 had punched the accused and left the accused locked inside the room. SP5 had appeared and was asked by SP4 to keep the accused locked inside the room. The accused finally managed to escape from the bedroom and he had run towards the outer part of the flat where he had seen the victim being dragged from the flat by SP4. The accused had become angry with the rough treatment of the victim by SP4 and had run towards them but was prevented by SP5 who had held the grille door in closed. The accused attempted to approach the victim to see her condition but SP4 had yelled for him to leave the premises. The accused left after the third directive from SP4. On the way down to his parked motorcycle, the accused had met with the victim's roommate, SP7 whom he had exchanged a few words with ('kami cuma bertukar pandangan'). The accused did not tell SP7 about me stabbing.
The accused had wanted to follow SP4's car to the hospital but he had run away when he was chased by some men. The accused had run away because he had panicked about the incident. He was worried about the victim. He did not know what to do. He had run towards a nearby river where he had hid in some bushes for half an hour. The accused had left the bushes after he was certain that he was no longer being chased. After leaving the river, the accused had contacted his brother that had brought him to the hospital. The brother of the accused had told him to remain in the car at the hospital parking lot. The accused acquiesced until his brother had brought the police to arrest him.
The argument of the defence counsel
The defence counsel had argued essentially that the accused did not have the intention to murder the victim. In arriving at this line of argument, the defence counsel relied on several contentions. It was SP4 and not the accused that had initially acted in an aggressive manner. The quarrel between the accused and SP4 was at the instance of the latter. The actual events that transpired in the victim's room were unobserved by any other persons. It was only the Accused and the victim who were in the bedroom. The stabbing of the victim occurred in the spur of the moment. There wasn't any preparatory step or premeditation to commit murder. Even the knife that was used was taken from the victim's kitchen.
The argument of the deputy public prosecutor
In brief, that the entire defence case of the accused is an afterthought and a bare denial. The facts relied on by the prosecution in countering the defence case inter alia are as follows. The accused had held the knife and run away from the scene of the crime upon being chased. The accused had not accompanied the victim to the hospital. The inconsistency in stating that there was no problem between the accused and the victim then changing the fact that there was a problem due to third party interference. The fact that the accused had parked his motorcycle at the flat opposite the victim's flat in order to avoid detection. The fact that the accused had gone to the victim's flat carrying a chainsaw and a knife. The fact that the victim had sustained two stab wounds to the abdomen is against the accused version that the accused had accidentally stabbed the victim when he fell on top of the victim. The victim's roommate, SP7 testified that she did not speak to the accused when the accused was running away from the flat. The unreasonable explanation that despite being well versed in the martial art of silat, the accused still required a knife to protect himself from the alleged harm posed by SP4.
Findings of the court at the end of the defence case
The question that the court has to ask itself is whether the defence has raised a reasonable doubt against the prosecution case for the charge of murder on the accused. The accused has rendered a testimony that is aimed alt convincing the court that although he had stabbed the victim, there was not any intention to murder.
The accused has admitted that his entry into the victim's flat on 6th of July 2004 was uninvited and initiated by breaking an entry by cutting on the grille door lock with a chainsaw. The said chainsaw had belonged to the accused which he had brought with him on his motorcycle. It is incredible that he should have ordinarily brought the chainsaw on his motorcycle if his intention in going over to the victim's flat was merely to check up on the victim and to make sure that she was all right. If the contention that the victim and the accused were still lovers in 2004 was to be accepted, it is improbable that during the silat tournament on 25th of July 2004, the victim would have avoided and ignored the accused. It is also improbable that the accused could not have personally approached the victim and inquired about her health on 25th of July 2004 rather than make inquiries through her friends if the contention that they were still lovers is to be accepted as true. This is further culminated by the testimony of the accused that the victim was of a personality that any inquiries regarding her person should be made directly to her. As such, the inference is that the relationship between the accused and the victim had already soured by 2004 and culminated further by the fact that the victim had started a new relationship with SP10.
The accused had parked his motorcycle at the parking lot at the opposite flat to that of the victim's flat. The only inference from this fact that the court is able to make is that the accused did not want to be detected by any potential witness. The accused stated that he had taken a knife from the kitchen of the flat when he had seen a hand trying to open the rear door from outside of the kitchen window. It may be accepted as reasonable that the knife was for protection against unknown intruders at the time that the hand was seen from outside the kitchen window. However, there is no reasonable explanation to justify the fact that the accused still held onto the knife when he had discovered that the intruder was SP4 whom he had known for some years. The accused stated that SP4 had prevented the victim and him from leaving the flat by locking the front door and forcing them to relieve old history between them for almost 1 hour in the hallway. In cross examination, the accused had given a different version allegedly that he had feared physical threat from SP4 therefore he had continued to hold the knife for protection. The court is unable to accept this testimony of the accused. There was no physical threat from SP4. SP4 was unarmed. The accused had testified that he had a high level of expertise in the martial art of silat. The accused could have easily overpowered SP4 and left the flat with the victim.
The accused stated that he had coaxed the victim to enter her bedroom in order for the argument to be settled between SP4 and the accused out in the hallway. The accused had followed the victim into her bedroom only when the victim showed reluctance to comply with his request. The accused stated that he had brought the knife when he had followed the victim into the bedroom for the purpose of protecting against the alleged harm posed by SP4. I have stated my reasons in finding that SP4 did not pose any physical threat to either the accused or the victim on 26th of July 2004. The accused did not have any reasonable excuse to have brought the knife into the bedroom. If it is to be accepted that his intention in following the victim into the bedroom was merely to assuage her crying, the accused did not require a knife for such a purpose. Furthermore, the bedroom door was locked with only the accused and the victim occupying the bedroom. The victim did not make any loud noises from inside the bedroom (this is testified by SP4 that he did not hear any noises from inside for the span of 5 - 10 minutes before he entered the bedroom) as she was most likely terrified for her life. The accused had broken into her flat. The accused was holding a knife throughout the ordeal. The accused had locked her in the bedroom with him and the knife. She was most probably crying but not for the reason as stated by the accused but because she was afraid of being hurt. The accused did run away from the scene of the crime despite his contentions of loving and deeply caring for the victim. After he had stabbed the victim, the victim's phone had begun to ring. (The accused had answered the call but rather than informing the caller (who was SP5) to call for an ambulance, the accused had rudely shut off the phone. It is pertinent to note that despite his allegation that SP4 had posed a threat to him and the victim on the fateful day, the accused had readily allowed the victim to be sent to the hospital by SP4. The accused had even acquiesced with the order of SP4 and left the vicinity of the flat. This is incredible in light of the allegation that SP4 was a threat to the safety of the accused on that day. If he did not intend to murder the victim, there was no fear of being caught by SP5 and SP8 who were chasing the accused. The accused could have handed the knife over to either SP4 or SP5 and accompanied SP4 in bringing the victim to the hospital.
As for the stabbing of the victim being an accident, the court finds the entire version narrated by the accused as a fictional story. This fictional story is easily countered by the post mortem report including the testimony of the forensic pathologist and the medical officer that the nature of the injury was fatal and was intentionally inflicted using a sharp and long knife. It is incredible that the victim who was supposedly unwell on 26th of July 2004 could have the strength to grab the arm of the accused, caused both of them to fall to the floor and resulted in the accidental stabbing of the victim. The medical officer, who had first attended to the victim (SP13), has confirmed that there were 2 stab wounds. An accidental fall and accidental stabbing could not have possibly resulted in 2 stab wounds on the victim's abdomen. As I have stated in my analysis at the end of the prosecution case, the injury inflicted on the victim was by using a great force that had punctured deeply into her abdomen until it had caused injury to the main blood stream. The fatal injury was not due to any accident. In Mohamed Yasin bin Hussin v. PP [1976] 1 LNS 75; [1976] 1 MLJ 156 at 157, Lord Diplock in delivering the judgment of the Privy Council held that - "The lacuna in the prosecution's case which the trial judges overlooked was the need to show that, when the accused sat forcibly on the victim's chest in order to subdue her struggles, he intended to inflict upon her the kind of bodily injury which, as a matter of scientific fact, was sufficiently grave to cause the death of a normal human being of the victim's apparent age and build even though he himself may not have had sufficient medical knowledge to be aware that its gravity was such as to make it likely to prove fatal."
I am in agreement with the argument of the deputy public prosecutor that the testimony of the accused in his defence is an afterthought and a bare denial. I find, after considering the testimony of the accused and balancing it with the evidence of the prosecution, that the accused had the intention to murder the victim within the provision of Section 300(a) of the Penal Code.
Conclusion
Based on the above reasons, the court finds that the accused has not raised any reasonable doubt on the prosecution case against him. The prosecution has therefore established the case on the charge of murder against the accused beyond any reasonable doubt. The accused is therefore convicted on this charge proffered against him and is sentenced with hanging by the neck until death.
Dated: 26 JANUARY 2010
YA TUAN HAJI MOHD YAZID HAJI MUSTAFA
Pesuruhjaya Kehakiman
Mahkamah Tinggi Shah Alam (Jenayah 4)
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