1

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA

(BIDANGKUASA RAYUAN)
RAYUAN JENAYAH NO. 05-25-2007 (B)
ANTARA

AHMAD NAJIB BIN ARIS … PERAYU

DAN
PENDAKWA RAYA … RESPONDEN

[Dalam Mahkamah Rayuan Malaysia

Rayuan Jenayah Bil. B-05-28-2005
ANTARA

AHMAD NAJIB BIN ARIS … PERAYU

DAN
PENDAKWA RAYA … RESPONDEN]

[Dalam Mahkamah Tinggi Malaya di Shah Alam

Perbicaraan Jenayah Bil. 4-38-2003
Antara

Pendakwa Raya

Dan

Ahmad Najib Bin Aris]

Coram: Arifin bin Zakaria, CJM

Nik Hashim bin Nik Ab. Rahman, FCJ
Augustine Paul, FCJ
Hashim bin Dato’ Hj Yusoff. , FCJ
Zulkefli bin Ahmad Makinudin, FCJ
 2

JUDGMENT OF THE COURT

Introduction

The appellant was charged in the High Court at Shah Alam on

the following two charges:

First Charge

“Bahawa kamu pada 14 Jun 2003, antara jam lebih

kurang 1.00 pagi hingga 5.00 pagi, di Batu 7, Jalan Klang
Lama, di dalam daerah Petaling, dalam negeri Selangor
Darul Ehsan telah melakukan bunuh dengan
menyebabkan kematian ke atas ONG LAY KIAN (P) (KP
NO. 740718-08-5204) dan oleh yang demikian kamu
telah melakukan suatu kesalahan yang boleh dihukum di
bawah seksyen 302 Kanun Keseksaan”.

Second Charge

“Bahawa kamu pada 14 Jun 2003, antara jam lebih

kurang 1.00 pagi hingga 5.00 pagi, di Batu 7, Jalan Klang
Lama, di dalam daerah Petaling, dalam negeri Selangor
Darul Ehsan telah melakukan rogol ke atas ONG LAY
KIAN (P) (KP NO. 740718-08-5204) dan oleh yang
demikian kamu telah melakukan suatu kesalahan yang
boleh dihukum di bawah seksyen 376 Kanun Keseksaan”.
 3

The learned Judge of the High Court found the appellant guilty
and convicted him on both charges. He was sentenced to death for
the offence under section 302 of the Penal Code and was sentenced
to twenty years imprisonment and ordered to be given 20 strokes of
the rottan for the offence under section 376 of the Penal Code. He
appealed to the Court of Appeal against the decision of the High
Court. The learned Judges of the Court of Appeal dismissed the
appeal and affirmed the conviction and sentence in respect of both
the charges. Being dissatisfied with the decision, the appellant now
appeals to this Court against the whole decision of the Court of
Appeal.

The Case For The Prosecution

The evidence adduced by the prosecution from the relevant

prosecution witnesses may be summarized as follows:

On the night of 13 June 2003, Pearly a/p Vismanathan (PW3)

together with her two daughters, Ong Lee Cheng and Canny Ong Lay
Kian [“the deceased”] had dinner together with friends of the
deceased at Restoran Monte, Bangsar Shopping Centre (BSC) as a
farewell for her before she returned to the United States on 14 June
2003. They went to BSC in a Proton Tiara bearing registration
number WFN 6871 [“P145”]. They arrived at BSC at about 8.30 p.m.
and had dinner there until about 10.30 p.m. When they were ready to
leave, the deceased went to the basement car park alone to take the
parking ticket which was left behind in the car P145 to make payment
 4

at the autopay station at the lower floor of BSC. PW3 and her other
daughter, Ong Lee Cheng waited for the deceased at the lower floor.
PW3 waited for about twenty minutes but the deceased still did not
show up and when Ong Lee Cheng called the deceased’s mobile
phone, no answer was received and the call went to “voice mail”.
PW3 and Ong Lee Cheng then went down to the basement but failed
to find the deceased. PW3 also discovered that their car P145 was
not there. PW3 then lodged a report with a BSC guard, PW10 and
later lodged a police report P10.

On the same day, at about 11.15 p.m. L/Cpl. Ravichandran a/l

Subramaniam (PW4), a police officer together with a colleague were
on crime prevention patrol duty at the Taman Perindustrian Jaya,
Kelana Jaya area near Subang. There, PW4 noticed that a car had
stopped beside the roadside. Half an hour later, PW4 and his
colleague passed the same route again and noticed that the car P145
was still there. PW4 and his colleague stopped their motorcycle.
PW4 then knocked on the glass window on the driver’s side of the car
P145. When the glass window was lowered, PW4 saw that the driver
was a male Malay and on the passenger seat was a female Chinese.
PW4 shone his flashlight towards both of them and introduced
himself as a police officer and showed them his authority card. PW4
then asked for the identity cards of the driver and the passenger.
When the driver gave his identity card (P12), PW4 shone his
flashlight at the identity card and asked the driver for his name. The
driver answered that his name was Ahmad Najib bin Aris. PW4 then
looked at the identity card (P11) given by the passenger and asked
 5

“awak Ong Lay Kian?” (“You are Ong Lay Kian?”). The passenger
only nodded. At that time, the driver was wearing a cap. PW4 asked
him to remove his cap. After the driver had removed his cap, PW4
compared the driver’s face with the photograph in the driver’s identity
card and found them to be the same. PW4 identified the driver as the
appellant and the female Chinese as the deceased. PW4 then asked
the appellant to get out of the car but the appellant refused.

Meanwhile, PW4 saw the deceased gesture to him by pressing

both her palms together to her chest with the palms outwards facing
the appellant and then making a prayer-like gesture. The deceased
made this gesture when the appellant was looking at PW4 but when
the appellant turned towards the deceased, the deceased stopped
her gesture. When the appellant refused to get out of the car, PW4
tried to open the door of the car but at that time, the appellant sped
off. PW4 fired two shots at the tyres of the car. PW4 and his
colleague also attempted to pursue the car with their motorcycles but
failed. The car seen by PW4 was similar to the photographs of the
car P145 which are P7A and P7B which were shown to PW4. The
appellant’s identity card P12 and the deceased’s identity card P11
were still with PW4 when the appellant sped off in the car. PW4 then
lodged a police report (P13) about the incident.

At about 12.00 midnight, Aminah bt. Ishak (PW5) was on her

way to KLIA to pick up her sister in a Kancil car driven by her brother-
in-law. They stopped their car in front of Bangunan Bali at Jalan
Sungai Way. They stopped there to wait for another van which would
 6

also make the trip to KLIA but had turned back home to get a milk
bottle. About twenty feet in front of the Kancil car PW5 saw a Proton
Tiara (P145) car by the roadside. A man whom PW5 identified as the
appellant then came out from the said car towards the Kancil car and
asked whether he could borrow a car jack. PW5 could see the man’s
face clearly as the surrounding area was well lit by street lights even
though the appellant was wearing a cap. PW5 also saw a woman in
the car P145 but the woman did not get out of the car. PW5 identified
the woman as the deceased. PW5 noticed that the deceased
appeared to gesture to her and also appeared to be frightened. The
deceased gestured with her face in the direction of the appellant but
when the appellant turned towards her, the deceased stopped her
gesturing. PW5 then noted down the registration number of the
Proton Tiara WFN 6871 on a piece of paper. When the appellant
failed to open the screws to one of the tyres of the car P145, the
appellant went off in the said car. PW5 then made a police report at
the Subang Jaya police station about the suspicious incident and
gave the registration number of the Proton Tiara to a police officer
L/Kpl. Ruslan bin Hamzah (PW11). PW11 then took down the report
and the registration number in his Station Diary (P21).

At about 1.00 a.m. on 14 June 2003, Azizam bin Ismail (PW12),

a technician with Syarikat UTIC (Utility Information Centre) was
driving his company van to his office by way of Jalan Klang Lama. At
a road construction area at Jalan Klang Lama, PW12 stopped the van
to relieve himself. PW12 then scoured the area looking for a piece of
wood to support the back seat of the van which was broken. PW12
 7

then saw a Proton Tiara in the area which was later identified as
P145. Inside the car P145, PW12 saw a woman with fair skin lying
down at the back seat without her clothes and her breasts exposed.
PW12 also saw the driver of the car who was a man with light hair
and a wide forehead hurriedly running away from PW12. PW12 also
saw that the front right tyre of the car had become deflated. The car
P145 was then driven away from there. PW12 then went to his
company office at Bukit Lanjan, Damansara. When PW12 came
back from his office using the same Jalan Klang Lama route, he saw
the same car P145 parked at the same place but a bit forward from
before. PW12 then stopped the van and saw that nobody was in the
car P145. PW12 then took a mobile phone (P129) belonging to the
deceased and a sling-on bag with a Maybank Yippie logo (P23) from
the back seat of the car P145. The sling-on bag with a Maybank
Yippie logo (P23) contained:

(i) 3 condoms;
(ii) A lighter;
(iii) Cigarettes;
(iv) A ball pen; and
(v) Paper.

PW12 then returned to his house at Jalan Gasing and then

drove to Penang to meet his wife. PW12 also called his wife using
the telephone P129 which he had taken from the car P145. On his
way to Penang, PW12 sold the telephone P129 to a telephone
vendor in Ipoh while the sim card P24 in P129 was sold to PW13.
 8

On 14 June 2003 at about 8.00 p.m., the car P145 was found
by Constable Mohd Zulkefli bin Abdul Ghani (PW8) behind shop No.
49, Jalan Petaling Utama 1. He saw a lot of blood stains at the back
seat of the car. The car P145 was then brought to the Petaling Jaya
Police Station for further investigation. On 17 June 2003 at about
noon, a burnt body was found by E. Soon Tai (PW6) in a manhole at
Batu 7, Jalan Klang Lama. PW6 then called the police and informed
them of his finding.

DNA tests with a blood sample from the mother (PW3) and
father (PW36) of the deceased confirmed that the body was that of
Ong Lay Kian (the deceased). Pathology expert Kasinathan
Nadeson (PW30) who conducted an autopsy on the deceased found
a piece of cloth tied around the deceased’s neck at least three
rounds.

Both the deceased’s hands were tied with a cloth folded two or
three times. The cause of death was strangulation by the cloth
around the deceased’s neck and PW30 did not dismiss the theory
that the deceased died as a result of bleeding in the abdomen caused
by a sharp weapon. On 20 June 2003 Supt. Ahmad Razali bin
Yaacob (PW32) inspected the appellant’s house at Lot 122, Jalan
Pantai Permai 6, Kg. Kerinci, Pantai Dalam, Kuala Lumpur. In the
appellant’s room under a table a pair of Jack Blue Classic jeans
(P68A) with a Calvin Klein belt (P68B) and a blue cap were found.
The jeans had blood stains and DNA tests confirmed that it is the
deceased’s blood. PW30 who conducted the autopsy also took a
 9

vaginal swab from the deceased and DNA tests by Primulapathi a/l
Jayakrishnan (PW27) showed that it is the appellant’s semen.

The blood stains on the back seat (P57A) and driver’s seat
(P55A) of the car (P145) were confirmed to belong to the deceased.
Six strands of hair (P56C) found in the car, based on DNA tests were
also confirmed to be the deceased’s hair. Besides that, DSP Amidon
bin Anan (PW15) also found an unpaid BSC parking ticket (P20) on
the dashboard of the car P145.

A CCTV is installed at the basement of BSC and two CCTV

tapes P19C and P19D were analyzed by forensic experts PW15 and
PW16.

(a) On the analysis of the CCTV tape P19C, PW15 found:

- On 13.6.2003 at 8.24 p.m. until 8.26 p.m., a Proton

Tiara was seen as if searching for a parking lot (P29A,
B & C).
- At 8.39 p.m. an image of PW3 and the deceased
walking near the 9C pillar towards the lift is seen
(P29E).
- On 13.6.2003 at 8.49 p.m., an image of a man was
seen walking at the parking area (P29F).
- On 13.6.2003 between 10.22 p.m. and 10.24 p.m., the
man is seen walking around the 9C pillar area.
 10

- On 13.6.2003 at 10.32 p.m., an image of a Proton

Tiara car is seen moving out of the parking area
(P29K).
PW15 confirmed that the man in the CCTV tape P19C
looks like the appellant. The appellant’s image is seen
carrying a sling bag with a strap and wearing a baseball
cap.
(b) DSP Mohd Noor bin Ahmad (PW16) also video-captured
the images (still photo) and used a “video investigator
system” for “zooming” and “enhancement” on the images.

The cloth tying the deceased’s hand (P62A) was found to have
the same colour, texture and composition with the muslin cloth
(P82A) from the appellant’s workplace at MAS which is used to clean
airplanes. Sivakumar a/l Ramiah (PW26), a MAS Storekeeper, said
in his evidence that he normally saw the appellant coming to work
carrying a sling bag with a Maybank logo similar to P29.

Findings Of The High Court

The High Court having considered the oral and documentary

evidence tendered by the prosecution at the close of the prosecution
case ruled that a prima facie case had been made out by the
prosecution. The learned Judge of the High Court accepted the
evidence of the prosecution witnesses PW4, PW5 and PW12 as to
the identification of the appellant at the various scenes or locations
where the appellant was found to have been with the deceased. The
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learned Judge, after a trial within a trial to determine the admissibility

of the confession (P122) made to the Magistrate by the appellant
ruled that the confession was admissible in evidence. The learned
Judge also accepted the evidence of the Chemist (PW27) and the
evidence of the DNA analysis and results (P83) with regard to the
relevant exhibits produced by the prosecution. Based on the
circumstantial evidence adduced by the prosecution the learned
Judge came to the conclusion that a prima facie case had been made
out and called for the defence of the appellant. The appellant chose
to remain silent after the three alternatives were explained to him.
Upon the appellant choosing to remain silent the learned Judge duly
convicted the appellant on the two charges framed against him and
passed sentence on him accordingly.

Findings Of The Court of Appeal

The Court of Appeal held, inter alia, that the confession (P122)
given by the appellant to the Magistrate which was held by the
learned trial Judge as being admissible was inadmissible. In arriving
at the conclusion the Court of Appeal considered the evidence of
what had transpired between the time when the appellant was given
to the charge of ASP Muniandy A/L Shanmugam (PW44), the
investigating officer until the time when he made the confession. This
was to show the existence of circumstances that raised a strong
suspicion that the appellant had been pressured by the police into
making the confession. The appellant did not make the confession in
a state of contrition but in the hope of getting a light sentence.
 12

Further, the Court of Appeal took the view that since the confession
was inadmissible, it became necessary to undertake an examination
and evaluation of the rest of the evidence in order to consider
whether it warranted the conviction of the appellant for the rape and
murder of the victim. The Court of Appeal accepted the evidence on
the identification of the appellant by PW4 and PW5. The Court of
Appeal also accepted the evidence of the Chemist (PW27), the DNA
(P83) evidence and its results as being in compliance with the
requirement of section 90A of the Evidence Act 1950 [“the Act”].
Relying on circumstantial evidence the Court of Appeal found that the
evidence in its entirety led only to one conclusion, that it was the
appellant and no one else who was responsible for what happened to
the victim on that night. The Court of Appeal therefore dismissed the
appeal and affirmed the conviction and sentence of the appellant.

The Appeal

Before this Court the appellant in his Petition of Appeal had put
forward 27 separate grounds of appeal for argument. The grounds in
the Petition of Appeal were combined under six distinct headings by
learned counsel for the appellant in his submission before us. They
are as follows:

(a) In the light of the findings of the Court of Appeal that the
High Court judgment was of no assistance to the Court of
Appeal, the Court of Appeal thereafter erred, in
undertaking an examination and evaluation on the rest of
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the evidence, on its own to consider whether it was safe

to maintain the conviction, a process which is against the
principles on appellate powers of the Court of Appeal in
hearing an appeal.
(b) The dissatisfactory manner in which the Court of Appeal
accepted the issue of identification of the appellant by
PW4 and PW5, and the reliance on the CCTV images
[P19A-P19B and P29A-P29K] and the cursory manner in
which the Court of Appeal disregarded the accepted
discrepancies with regard to the attire of the man
(purportedly identified as the appellant).
(c) The acceptance of the DNA (P83) in breach of the
requirements of section 90A of the Act and the
acceptance of the Chemist (PW27) testimony on the
issue that the muslin cloth (P82A) was of the same kind of
fabric that was found around the neck or wrists of the
victim (P59A and P61A)
(d) The erroneous findings that the appellant and no one else
was possibly responsible for the crimes from all available
evidence.
(e) Upon rightly rejecting the admissibility of the confession
(P122), the Court of Appeal erred in its failure to consider
setting aside the conviction, or at the very least to order a
retrial after the end of the prosecution’s case, and to allow
the appellant to make a fresh decision as to whether to
exercise his option to give sworn evidence or to remain
silent.
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(f) The need for this Court to revisit the law on the burden of
proof vis-à-vis the right to remain silent.

I shall now deal with the above main grounds of appeal and
other ancillary issues related to them.

Power of Appellate Court to review or to re-evaluate all available

evidence

As regards the first main ground of appeal raised by the

appellant, I am of the view that the Court of Appeal has the power to
review or to re-evaluate all the evidence available as adduced by the
prosecution. The Court of Appeal is in a position to do so in the
present case even though the grounds of decision of the trial Judge
as appearing in the Appeal Records is found lacking in specific
findings and with no reasons for the findings. In a case involving
purely a question of fact, the Court of Appeal is free to determine
whether or not the various findings of the trial Court are correct. [See
Mohamed Mokhtar v. P.P. (1972) 1 MLJ 122]. In the present case
even though the Court of Appeal took the view that the High Court
judgment was of no assistance, it nevertheless had considered and
subjected all the evidence adduced by the prosecution to a critical re-
examination. The Court of Appeal had given sound reasons as to
why the evidence was admitted and how it had implicated the
appellant. There was no miscarriage of justice against the appellant
as the Court of Appeal’s decision was based on evidence adduced
from the witnesses called by the prosecution as appearing in the
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Appeal Records. I am therefore of the view that the Court of Appeal

did not err on this issue.

Identification of the Appellant

On the second ground of appeal in respect of the contention of

the appellant that the Court of Appeal had erred in arriving at its
finding of fact on the identification of the appellant by PW4 and PW5,
I find that the evidence adduced by the prosecution clearly showed
that PW4 and PW5 had positively identified the appellant. The
relevant facts from the evidence of PW4 in relation to the
identification of the appellant by PW4 can be narrated as follows:

(a) On 13.6.2003, at 11.15 p.m., PW4 saw a car at Taman

Perindustrian Jaya, Kelana Jaya which was similar to the
car P145.
(b) Half an hour later, after seeing that the car P145 was still
there, PW4 inspected the car. When the car window was
lowered, PW4 saw a male Malay and a Chinese woman
in the car. PW4 shone his torchlight at both of them.
(c) PW4 then asked for both their identity cards. When PW4
received the identity card from the man, PW4 shone his
torchlight at the identity card and asked the man what his
name was. The man answered “Ahmad Najib bin Aris”.
After seeing the woman’s identity card, PW4 asked “awak
Ong Lay Kian” (“you are Ong Lay Kian”) and the woman
nodded her head.
 16

(d) PW4 then asked the man to take off his cap so that he
could compare the driver’s face with the photograph in the
identity card and found the face to be the same.
(e) When PW4 was inspecting the car P145, there were
street lights and even without the torchlight, PW4 could
identify the person in the car. PW4 questioned the man
for about five minutes before the man sped off in the car
P145, leaving behind his identity card P12 and the
deceased’s identity card P11 with PW4.
(f) When PW4 questioned the man, PW4 noticed that the
Chinese woman in the car (the deceased) was nervous
and it was as if she was trying to gesture to him for help
and pointing at the appellant but when the appellant
turned towards her, the deceased would stop making any
gestures. This incident made it possible for PW4 to
recognize the deceased and the appellant.
(g) In Court, PW4 identified the appellant as the man in the
car P145.
(h) During the identification parade, PW4 was also able to
identify the appellant.

From the evidence explained above, it is clear that PW4 had

positively identified the appellant as the person who was with the
deceased on the night of 13 June 2003.

The relevant facts from the evidence of PW5 in relation to the

identification of the appellant by PW5 can be narrated as follows:
 17

(a) At about 12.00 in the morning of 14 June 2003, PW5 and

his family were on their way to KLIA in a car and a van to
pick up his sister who was arriving from Sabah. However,
the car they were travelling in stopped at Bangunan Bali,
Sungai Way to wait for the van which had turned back to
get a milk bottle left at home.
(b) While waiting for the van, PW5 saw a Proton Tiara
parked about 25 feet in front of the Kancil car PW5 was
in. PW5 saw a man coming out from the Proton Tiara to
the Kancil car PW5 was in. The surrounding area was
clearly lit by street lamps.
(c) The man came straight to PW5’s brother-in-law and
wanted to borrow a car jack. While speaking to PW5’s
brother-in-law, the man stood outside the car PW5 was in.
PW5 was able to see the man’s face clearly.
(d) PW5 also saw a woman seated at the front passenger
seat but she did not come out of the Proton Tiara car.
PW5 saw the woman from a close distance which was
immediately in front of the Proton Tiara car.
(e) When the woman saw PW5, the woman looked as if she
was making a gesture. Her eyes, face and mouth looked
as if she was in fear and she was pointing with her face to
the man who was borrowing the car jack. However, when
the man turned towards her, the woman immediately
stopped gesturing. The man however failed to open the
screw to the tyre of the Proton Tiara and the man then
hurriedly left the place in the Proton Tiara car.
 18

(f) PW5 was in front of the Bangunan Bali for about twenty
minutes. During cross-examination, PW5 maintained that
she could identify the man’s face. [See page 97 of the
Appeal Records].
(g) In court, PW5 identified the appellant as the said man.
(h) PW5 had also noted down the Proton Tiara registration
number as WFN 6871 on a piece of paper (P145). PW5
then lodged a police report at the Subang Jaya Police
Station. PW11 then received PW5’s complaint and took it
down in PW11’s Station Diary.
(i) PW5 also identified the appellant in an identification
parade.

From the detailed evidence of PW5, it is clear that PW5

identified the appellant on that night in front of the Bangunan Bali.
The issue of PW4 and PW5 identifying the appellant was considered
by the Court of Appeal and based on the facts and the evidence, it is
my considered view that the Court of Appeal did not err in deciding
that PW4 and PW5 had identified the appellant.

Discrepancy

On the discrepancy in the evidence of PW4 and PW5 with

regard to the attire of the appellant as alleged by him, I am of the
view that there can be inferences drawn from a set of facts and
evidence. The evidence of PW4 was that the appellant wore a dark
blue sweater and a dark coloured cap. The evidence of PW5 was
 19

that the appellant wore a light coloured shirt, a bright coloured pants
and a bright coloured cap. The evidence of PW15 on the other hand
when seeing the CCTV image was that the appellant wore a bright
coloured shirt and a dark coloured pants.

In my view the above discrepancies are not material as what is

important is the positive identification by PW4 and PW5 of the
appellant’s face. Regarding the clothes PW4 saw the appellant
wearing, which was a dark blue sweater as compared to the evidence
of PW5 who saw the appellant wearing a light coloured shirt, the
logical explanation is that when PW4 saw the appellant in the car on
the night of 13 June 2003, it was a cold night with the appellant
wearing a sweater. However, when PW5 saw the appellant in front of
Bangunan Bali, the appellant could have taken off the sweater as he
wanted to change a flat tyre. The appellant was also proved to have
had a sling bag with a Maybank logo on it and the sweater could have
been kept in the bag. In any event, it is normal for different witnesses
to give different descriptions about what a person was wearing as
each witness’s observation and recollection varies from each other.
The learned Judges of the Court of Appeal had given a reasonable
explanation based on the facts and inferences derived from the
evidence as shown in their Grounds of Judgment on this point.
 20

The Existence of the Identity Card of the Appellant and Police Report
lodged by the Appellant

For the appellant it was also argued that the learned Judges of
the Court of Appeal had erred in arriving at their finding of fact that
with the existence of the identity card and police report lodged by the
appellant, it proved that the appellant was at the said locations as
stated in the evidence. On this issue it is to be noted that on
14.6.2003, at 3.10 p.m., the appellant had lodged a police report
(P18) about his missing identity card. This was confirmed by PW9
who took the complaint from the appellant and identified the
appellant. A copy of P18 was found and seized from a table in the
appellant’s house. The fact that the appellant had lost his identity
card and had lodged a report clearly showed that the appellant’s
identity card was not with him. This is consistent with the evidence of
PW4 who said that he held the appellant’s and the deceased’s
identity card when he asked the appellant some questions before the
appellant sped away in the car P145 when PW4 asked the appellant
to get out of the car.

It is my judgment that the Court of Appeal had arrived at a

correct finding of fact on the issue of the lost identity card and
concluded that the appellant had lodged a false report on its loss.
This finding of fact is based on evidence adduced by the prosecution.
PW4 could not have been in possession of both the identity cards of
the appellant and the deceased if he did not receive it from the
appellant and the deceased themselves.
 21

The Identification Parade

On the issue of the identification parade raised by the appellant

that the police did not comply with accepted procedure in this case, it
is my view that it is not in all cases that the prosecution is required to
conduct an identification parade. I am of the view that it is only where
the primary issue is the identity of the accused or whenever the case
against an accused person depends wholly or substantially on the
correctness of one or more identification of the accused which the
defence alleges to be mistaken that the principles or the guidelines as
laid down in the case of Regina v. Turnbull & Anor. [1977] 1 QB
224 need be followed and the identification parade conducted. In the
present case it is to be noted that the identification of the appellant by
PW4, PW5 and PW12 was not based on a fleeting glimpse as in
Turnbull’s case. Unlike the facts in Turnbull’s case there are also
other forensic and supporting evidence connecting the appellant with
the crime in the present case. It is my considered view that the
quality of the identification evidence of PW4, PW5 and PW12 in the
present case is good and remains good throughout the prosecution’s
case and that the question of a mistaken identity cannot arise.
Therefore even discounting the identification parade, the prosecution
witnesses PW4, PW5 and PW12 had indeed positively identified the
appellant.
 22

The admissibility of the Chemist report (P83) and the CCTV tapes
(P19A-D)

(a) Chemist Report (P83)

Learned counsel for the appellant argued that under section

90A of the Act, the prosecution must produce a certificate under
section 90A(2) of the Act to confirm that the Chemist Report (P83)
was produced by a computer “in the course of its ordinary use” before
P83 can be admitted as evidence. Section 90A of the Act reads as
follows:

“90A. (1) In any criminal or civil proceeding a

document produced by a computer, or a
statement contained in such document, shall
be admissible as evidence of any fact stated
therein if the document was produced by the
computer in the course of its ordinary use,
whether or not the person tendering the
same is the maker of such document or
statement.
(2) For the purposes of this section it may be
proved that a document was produced by a
computer in the course of its ordinary use by
tendering to the court a certificate signed by
a person who either before or after the
production of the document by the computer
 23

is responsible for the management of the

operation of that computer, or for the
conduct of the activities for which the
computer was used.
(3) (a) It shall be sufficient, in a certificate given
under subsection (2), for a matter to be
stated to the best of the knowledge and
belief of the person stating it.
(b) A certificate given under subsection (2)
shall be admissible in evidence as prima
facie proof of all matters stated in it without
proof of signature of the person who gave
the certificate.
(4) Where a certificate is given under subsection
(2), it shall be presumed that the computer
referred to in the certificate was in good
working order and was operating properly in
all respects, throughout the material part of
the period during which the document was
produced.
(5) A document shall be deemed to have been
produced by a computer whether it was
produced by it directly or by means of any
appropriate equipment, and whether or not
there was any direct or indirect human
intervention.
 24

(6) A document produced by a computer, or a

statement contained in such document, shall
be admissible in evidence whether or not it
was produced by the computer after the
commencement of the criminal or civil
proceeding or after the commencement of
any investigation criminal or civil proceeding
or such investigation or inquiry, and any
document so produced by a computer shall
be deemed to be produced by the computer
in the course of its ordinary use.
(7) Notwithstanding anything contained in this
section, a document produced by a
computer, or a statement contained in such
document, shall not be admissible in
evidence in any criminal proceeding, where
it is given in evidence by or on behalf of the
person who is charged with an offence in
such proceeding the person so charged with
the offence being a person who was –
(a) responsible for the management of the
operation of that computer or for the
conduct of the activities for which that
computer was used; or
(b) in any manner or to any extent it
involved, directly or indirectly, in the
 25

production of the document by the

computer.”

I am of the view that a certificate under section 90A(2) of the

Act is not the only method to prove that a document was produced by
a computer “in the course of its ordinary use”. On this point I would
first like to cite the case of Gnanasegaran a/l Pararajasingam v.
P.P. [1997] 3 MLJ 1 where Shaik Daud, JCA said at page 11:

“On reading through section 90A of the Act, we are

unable to agree with the construction placed by learned
counsel. First and foremost, section 90A which had
seven subsections should not be read disjointedly. They
should be read together as they form one whole provision
for the admissibility of documents produced by
computers. As stated earlier, section 90A was added to
the Act in 1993 in order to provide for the admission of
computer-produced documents and statements as in this
case. On our reading of this section, we find that under
subsection (1), the law allows the production of such
computer-generated documents or statements if there is
evidence, firstly, that they were produced by a computer.
Secondly, it is necessary also to prove that the computer
is in the course of its ordinary use. In our view, there are
two ways of proving this. One way is that it ‘may’ be
proved by the production of the certificate as required by
subsection (2). Thus, subsection (2) is permissive and
 26

not mandatory. This can also be seen in subsection (4)

which begins with the words ‘Where a certificate is given
under sub-section (2).
These words show that a certificate is not required to be
produced in every case. It is our view that once the
prosecution adduces evidence through a bank officer that
the document is produced by a computer, it is not
incumbent upon them to also produce a certificate under
subsection (2) as subsection (6) provides that a document
produced by a computer shall be deemed to be produced
by the computer in the course of its ordinary use.”

In appreciating the above passage it must first be observed that

section 90A(1) deals with the admissibility of a document which was
produced by a computer in the course of its ordinary use as a matter
of fact. It refers to a document that was produced by a computer in
the course of its ordinary use. It is this requirement that must be
proved. On the other hand section 90A(6) deals with the admissibility
of a document which was not produced by a computer in the course
of its ordinary use and is only deemed to be so. This distinction is not
recognized in the above passage and is addressed by Augustine
Paul, JCA (as he then was) in Hanafi Mat Hassan v. P.P. (2006) 4
MLJ 134 at pages 151-154:

“A careful perusal of section 90A(1) reveals that in order

for a document produced by a computer to be admitted in
evidence it must have been produced by the computer in
 27

the course of its ordinary use. It is therefore a condition

precedent to be established before such a document can
be admitted in evidence under section 90A(1). The
manner of establishing this condition has been
prescribed. It can be proved by tendering in evidence a
certificate as stipulated by section 90A(2) read with
section 96A(3). Once the certificate is tendered in
evidence the presumption contained in section 90A(4) is
activated to establish that the computer referred to in the
certificate was in good working order and was operating
properly in all respects throughout the material part of the
period during which the document was produced. Section
90A(4) must therefore be given its full effect as it has a
significant role to play in the interpretation and application
of section 90A. Ordinarily a certificate under section
90A(2) must be tendered in evidence in order to rely on
the provisions of section 90A(3) and (4). However, the
use of the words ‘may be proved’ in section 90A(2)
indicates that the tendering of a certificate is not a
mandatory requirement in all cases. In P.P. v. Chia
Leong Foo [2000] 6 MLJ 705, a plethora of authorities
was referred to in ruling that facts to be presumed can,
instead, be proved by other admissible evidence which is
available (at pp 722-723). Thus the use of the certificate
can be substituted with oral evidence as demonstrated in
R. v. Shepherd [1993] 1 All ER 225 in dealing with a
provision of law similar to section 90A. Needless to say,
 28

such oral evidence must have the same effect as in the

case of the use of a certificate. It follows that where oral
evidence is adduced to establish the requirements of
section 90A(1) in lieu of the certificate the presumptions
attached to it, in particular, the matters presumed under
section 90A(4) must also be proved by oral evidence. In
commenting on the nature of the evidence required to
discharge the burden in such an event Lord Griffiths
said in R. v. Shepherd [supra] at page 231:

‘The nature of the evidence to discharge the

burden of showing that there has been no
improper use of the computer and that it was
operating properly will inevitably vary from case
to case. The evidence must be tailored to suit
the needs of the case. I suspect that it will very
rarely be necessary to call an expert and that in
the vast majority of cases it will be possible to
discharge the burden by calling a witness who is
familiar with the operation of the computer in the
sense of knowing what the computer is required
to do and who can say that it is doing it properly.’

It must be added that the condition precedent in section

90A(1) coupled with the stipulation on the manner of its
proof makes it clear in unmistakable terms that a
document made admissible by the section is only one that
 29

was produced by a computer in the ordinary course of its

use; and inapplicable to one that was not so produced.
The resultant matter for consideration is the proper
meaning to be ascribed to the deeming provision in
section 90A(6) in order to determine whether it can be a
substitute for the certificate. A deeming provision is a
legal fiction and is used to create an artificial construction
of a word or phrase in a statute that would not otherwise
prevail. As Viscount Dunedin said in CIT Bombay v.
Bombay Corporation AIR [1930] PC 54 at page 56:

‘Now when a person is “deemed to be”

something the only meaning possible is that
whereas he is not in reality that something the
Act of Parliament requires him to be treated as if
he were.’

In commenting on the words “deemed to be” The Law

Lexicon (7th Reprint Ed) by Ramanatha Aiyar says at
page 302:

‘No doubt the phrase “deemed to be” is

commonly used in statutes to extend the
application of a provision of law to a class not
otherwise amenable to it.’
 30

Its primary function is to bring in something which would

otherwise be excluded [see Malaysia Building Society
Bhd v. Lim Kheng Kim & Ors. (1988) 3 MLJ 175]. In Ex
parte Walton, In re Levy [1988] 17 Ch D 746, it was held
that in interpreting a provision creating a legal fiction the
court is to ascertain for what purpose the function is
created, and after ascertaining this, the court is to assume
all those facts and consequences which are incidental or
inevitable corollaries to the giving effect of the fiction. It
would be proper and even necessary to assume all those
facts on which alone the fiction can operate [see Shital
Rai v. State of Bihar AIR (1991) Pat 110 (FB)]. In so
construing a fiction it is not to be extended beyond the
purpose for which it is created [see In re Coal
Economising Gas Company (1875) 1 Ch D 182] or
beyond the language of the section by which it is created
[see CIT Bombay City II v. Shakuntala AIR (1966) SC
719]. The fiction in the realm of law has a defined role to
play and it cannot be stretched to a point where it loses
the very purpose for which it is invented and employed
[see Bindra’s Interpretation of Statutes (9th Ed) page
72]. It is required by its very nature to be construed
strictly and only for the purpose for which it was created;
and its application cannot be extended (see FCT v.
Comber (1986) 64 ALR 451]. Thus it cannot be pushed
so far as to result in a most anomalous or absurd position
 31

[see Ashok Ambu Parmar v. Commr of Police,

Badodara City AIR (1987) Guj 147].
It must be remembered that the purpose of tendering in
evidence a certificate under section 90A(2) is to establish
that a document was produced by a computer in the
ordinary course of its use. On the other hand section
90A(6) deems a document produced by a computer to
have been produced by the computer in the course of its
ordinary use. They are incompatible and inconsistent
with each other. A fact cannot be deemed to have been
proved which specific provision has been made for the
mode of proof of the same fact. If therefore section
90A(6) is to function as a substitute for the certificate it
will render nugatory section 90A(2). This will not accord
with the basic rules of statutory construction. It is perhaps
pertinent to bear in mind Madanlal Fakirchand
Dudhediya v. Shree Changdeo Sugar Mills Ltd AIR
(1962) 1543 where Gajendragadkar J said at page 155:

‘In construing section 76(1) and (2), it would be

necessary to bear in mind the relevant rules of
construction. The first rule of construction which
is elementary, is that the words used in the
section must be given their plain grammatical
meaning. Since we are dealing with two sub-
sections of section 76, it is necessary that the
said two sub-sections must be construed as a
 32

whole “each portion throwing light, if need be, on

the rest”. The two sub-sections must be read as
parts of an integral whole and as being inter-
dependent; an attempt should be made in
construing them to reconcile them if it is
reasonably possible to do so, and to avoid
repugnancy. If repugnancy cannot possibly be
avoided, then a question may arise as to which
of the two should prevail. But that question can
arise only if repugnancy cannot be avoided.’

Every effort must thus be made to reconcile both the sub-

sections in order to avoid a conflict between them.
Such a reconciliation exercise will be greatly facilitated by
a consideration of the object of section 90A(6). Section
90A(1) provides for the admissibility of a document
produced by a computer in any criminal or civil
proceeding. Such a document is in fact a reference to a
document whether or not it was produced by a computer
after the commencement of any criminal or civil
proceeding. Accordingly, the applicability of section
90A(6) to documents produced by a computer
‘…..whether or not….’ They were produced after the
commencement of any criminal or civil proceeding etc.
will strike at the very foundation of section 90A(1) as
those documents constitute the very basis of the section.
It will result in section 90A(1) being rendered otiose.
 33

Such documents cannot therefore be within the

contemplation of section 90A(6). So section 90A(6) must
have some other purpose to serve. Its true scope and
meaning will become clear if it is read in the light of
section 90C. It provides that the provisions of sections
90A and 90B shall prevail over any other provision of the
Evidence Act 1950 thereby making section 90A the only
law under which all documents produced by a computer
are to be admitted in evidence. There may be instances
when a document which is sought to be admitted in
evidence may not have been produced by a computer in
the course of its ordinary use even though it is one that is
contemplated by section 90A(1). The document, even
though produced by the computer, may not have anything
to do with the ordinary use of the computer. It may, for
example, be a letter produced by the computer which has
no bearing on the ordinary use of the computer. Yet it is
still a document produced by a computer. How is this
document to be admitted in evidence bearing in mind the
prevailing effect of section 90C in making all documents
produced by a computer admissible only under section
90A if the condition precedent to its admissibility under
section 90A(1) cannot be fulfilled by virtue of it not having
been produced by the computer in the course of its
ordinary use? It is this question that is answered by
section 90A(6). The sub-section does not contain the
condition precedent and, instead, contains a deeming
 34

provision to the same effect. As its purpose is to render a

document produced by a computer to be one that is
produced by the computer in the ordinary course of its
use it can only apply to a document which is not produced
by the computer in the ordinary course of use. It is
incongruous to deem a document to have been produced
by a computer in the ordinary course of its use when it is
such a document already. This will become clear if it is
recalled that the object of a deeming provision is to create
an artificial status for something when in reality it is not.
As stated earlier the function of a fiction is to extend the
application of a provision of law to a class not otherwise
amenable to it. Thus section 90A(6) can only apply to a
document which was not produced by a computer in the
ordinary course of its use, or, in other words, to a
document which does not come within the scope of
section 90A(1). Thus it cannot apply to a document which
is already one that is produced by a computer in the
ordinary course of its use. It cannot therefore be used as
a mode of proof to establish that such a document was so
produced. The document must be proved in the manner
authorized by section 90A(2). It can now be discerned
with ease that section 90A(6) has its own purpose to
serve and can never be a substitute for the certificate.”

I agree with the views expressed in the above passages from

Hanafi Mat Hassan v. Public Prosecutor in the analysis of section
 35

90A. In substance therefore the fact that a document was produced

by a computer in the course of its ordinary use may be proved by the
tendering in evidence of a certificate under section 90A(2) or by way
of oral evidence. Such oral evidence must consist not only a
statement that the document was produced by a computer in the
course of its ordinary use but also the matters presumed under
section 90A(4). On the other hand the presumption contained in
section 90A(6) can be resorted to only when the document was not
produced by a computer in the course of its ordinary use.

In this case no certificate was tendered as required by section

90A(2) for proof of the chemist report (P83). Neither was any oral
evidence adduced to show that the report was produced by a
computer in the course of its ordinary use. It therefore remains that
the only evidence available is that the report was produced by a
computer. It is thus appropriate to resort to section 90A(6) to
presume that the report was produced by the computer in the course
of its ordinary use. With regard to proof of the matters under section
90A(4) the oral evidence of PW27 is relevant when he said:

“Saya tidak setuju saya tidak boleh sahkan computer,

program dan kit DNA itu tidak berfungsi dengan teratur
(proper working order). Saya boleh sahkannya.
Sekurang-kurangnya saya telah buat ujian enam kali
dengan genotyper dalam kes ini. Sebelum buat ujian
saya telah periksa samada computer itu dalam keadaan
 36

baik atau tidak.” [See page 338 of the Appeal

Records].

The chemist report (P83) is therefore admissible in evidence.

The contents of the chemist report (P83) have the direct effect
of linking the appellant to the commission of the offence of murder
and rape by him of the deceased. Firstly, in the appellant’s room at
his house in Kg. Kerinci, Pantai Dalam, Kuala Lumpur a pair of Jack
Blue Classic Jeans was found. It had blood stains and the DNA tests
confirmed that it is the deceased’s blood. Secondly, PW30 who
conducted the autopsy on the deceased took a vaginal swab from
her. The DNA tests of the swab by PW27 proved that it is the
appellant’s semen. Thirdly, the blood stains on the back seat (P57A)
and driver’s seat (P55A) of the car (P145) were confirmed to be that
of the deceased. Fourthly, six strands of hair (P56C) found in the car,
based on DNA tests, were also confirmed to be that of the deceased.

(b) The CCTV tapes (P19A-D)

Learned Counsel for the appellant submitted that the Court of

Appeal erred in law in admitting the CCTV tapes (P19A-D) as
evidence against the appellant. In the Court of Appeal the arguments
focused by the appellant and the prosecution principally on the weight
to be attached to these CCTV tapes and the images of the appellant
produced from them. The appellant contended that the CCTV
images of the appellant cannot be relied on for his identification as
 37

there were many discrepancies as regards the attire of the man

purportedly identified as him besides the images being unclear. The
prosecution on the other hand contended that the images may be
quite unclear but that did not mean that the CCTV tapes could not be
admitted as evidence. It was further contended by the prosecution
that only the “weight to be attached” needs the Court’s consideration
and the prosecution is relying on the CCTV tapes merely as
corroboration of the evidence given by PW4, PW5 and PW6.

Notwithstanding the above arguments advanced on behalf of

the appellant and the prosecution, I am of the view that before the
CCTV tapes can be admitted as evidence it must be considered
whether they are documents produced by a computer. A CCTV tape
clearly falls within the definitions of “document” and “computer” under
section 3 of the Act.

Under section 3 of the Act “document” is defined as follows:

“ ‘document’ means any matter expressed, described, or

howsoever represented, upon any substance, material,
thing or article, including any matter embodied in a disc,
tape, film, sound track or other device whatsoever, by
means of –
(a) letters, figures, marks, symbols, signals, signs or
other forms of expression, description, or
representation whatsoever;
 38

(b) any visual recording (whether of still or moving

images);
(c) any sound recording, or any electronic, magnetic,
mechanical or other recording whatsoever and
howsoever made, or any sounds, electronic
impulses, or other data whatsoever;
(d) a recording, or transmission, over a distance of any
matter by any, or any combination, of the means
mentioned in paragraph (a), (b) or (c),
or by more than one of the means mentioned in
paragraphs (a), (b), (c) and (d), intended to be used or
which may be used for the purpose of expressing,
describing, or howsoever representing, that matter.”

A “computer” is defined in the same section as follows:

“‘computer’ means any device for recording, storing

processing, retrieving or producing any information or
other matter, or for performing any one or more of those
functions, by whatever name or description such device is
called; and where two or more computers carry out any
one or more of those functions in combination or in
succession or otherwise howsoever conjointly, they shall
be treat as a single computer.”

A CCTV tape is therefore a document produced by a computer.

It follows that the CCTV tapes (P19A-D) must satisfy the
 39

requirements of section 90A of the Act before they can be admitted in

evidence. As this had not been done they are inadmissible.

Whether the “muslin cloth” (P82A) was of the same kind of fabric that
was found around the neck or wrists of the deceased

The appellant has also alleged that the Court of Appeal erred in
arriving at their finding of fact that the “muslin cloth” (P82A) which
was seized from the appellant’s office is the same as the cloth
wrapped around the deceased’s neck or tied around the deceased’s
hands (P59A) and (P61A). On this issue I am of the view that the
Court of Appeal did not err because it had made a reasonable finding
of fact based on the opportunity of access that the appellant had to
the “muslin cloth” (82A) which could be obtained from the appellant’s
workplace. The evidence of MAS Storekeeper PW26 on this issue
was accepted by the Court of Appeal in proving this fact. The Court
of Appeal had also discussed this issue in detail regarding the access
to this cloth. The Court of Appeal had also given detailed reasons as
to why PW26’s evidence was accepted.

Still on the issue of the “muslin cloth”, there is the evidence of

the Chemist (PW27) to be considered. He is an expert based on his
academic qualification, the courses he undertook, the training and his
vast experience in fabric analysis. Therefore, PW27 is qualified to
give evidence on the texture and composition of the “muslin cloth”
(P82A). PW27 had conducted several tests such as the microscopic
test, sulphuric acid test, quantitative test, burning test and weave
pattern test and arrived at a finding and conclusion that the “muslin
 40

cloth” (P82A) which was obtained by the investigating officer from the
appellant’s workplace is of the same type of cloth as that tied to the
deceased’s wrist. This evidence is another link between the
appellant and the deceased. It is to be noted that PW27, during
cross-examination, did say that the “dissolvent and burning test” was
not conclusive but the microscopic test was conclusive as based on
such test, the “pattern of weave of the materials” can be determined.
The appellant’s counsel did not cross-examine PW27 on the
microscopic test in terms of its “reliability of comparison by pattern of
weave.” I am of the view that all the tests conducted by PW27 when
combined lead to the conclusion that the “muslin cloth” (P82A) is of
the same type as the cloth found tied around the deceased’s wrists.

Whether there was any one else involved in the commission of the
crime

On the contention of the appellant that the Court of Appeal

erred in arriving at their finding of fact that there was nobody else
involved in the crime other than the appellant himself, I am of the
view that the Court of Appeal is justified in making such a finding.
The appellant alleged that the heavy concrete tyre covering the
deceased’s body showed that many people were involved. On this
point I find that the evidence of the investigating officer (PW44)
clearly shows that it is possible that the tyre was pulled and dragged
before it was pushed into the manhole. This can be done as there is
a handle on the tyre which makes it possible for the tyre to be pulled
 41

and dragged. In fact, PW44 even demonstrated in court how it could

be done.

The appellant claimed that it is impossible for him to lift the

concrete tyre to the manhole where the body was found. The
appellant argued that as the concrete tyre was beside the road
divider it was impossible for the appellant to lift it. There is no
evidence to show the tyre’s exact origin before it was put on top of
the manhole. Therefore, the appellant has no basis to raise this
issue. The Court of Appeal had considered this issue carefully and
had reached a finding which is supported by evidence. It is my view
that undue consideration should not be given to this evidence as the
act of covering the body is an act “after the event” which is after the
deceased died from strangulation and/or massive loss of blood. The
concrete tyre could not have caused any internal bleeding as blood
stains were found even in the car.

Evidence of existence of the opportunity to commit the crime

It must also be noted that the appellant had the opportunity to

have committed the crime. [See section 7 and illustration (c) of
the Evidence Act 1950]. The evidence of opportunity in this case
has been supplemented by proof of circumstances of such a nature
as to lead to the inference that it was probable that advantage would
be taken by the appellant of the opportunity. [See Aziz bin
Muhamad Din v. P.P. (1966) 5 MLJ 473]. The evidence adduced by
the prosecution showed that the appellant was seen together with the
 42

deceased by the prosecution witnesses, PW4, PW5 and PW12

through the sequence of events taking place at the various locations.

Whether there should be a retrial upon the rejection of the appellant’s

confession

The appellant further contended that the learned Judges of the

Court of Appeal erred in their evaluation of the prosecution evidence
after having rejected the appellant’s confession (P122) and thereafter
affirming the conviction. It was argued that the Court of Appeal
should have set aside the conviction or alternatively made an order
for a retrial after the end of the prosecution’s case and allowing the
appellant to make a fresh decision as to whether to exercise his
option to give sworn evidence or to remain silent. On this issue it is
my considered view that the appellant’s contention is without basis as
there is no legal principle that a conviction should be set aside when
a confession by the accused is rejected by the Court of Appeal. The
Court of Appeal has the discretion to re-evaluate the remaining
evidence and to scrutinize in totality such other evidence, apart from
the confession to determine whether the evidence is sufficient to
satisfy all the elements of the charges against the appellant. After all
such steps have been taken, the Court of Appeal is obliged to
scrutinize whether the evidence is sufficient to affirm the conviction
against the appellant. [See P.P. v. Abdul Rahman Akif (2007) 4
CLJ 337]. The question of whether an order for a retrial should be
made at the end of the prosecution’s case therefore does not arise in
this case since the evidence available before the Court of Appeal is
 43

sufficient to support the finding of guilt made by the trial Judge. On

the same issue it is untenable for learned counsel for the appellant to
contend that the appellant should be allowed to make a fresh
decision as to whether to exercise his option to give sworn evidence
or to remain silent if this Court is to order a retrial at the end of the
prosecution’s case. The appellant has been accorded the advantage
of a full trial process under the law before the trial Judge. Whatever
rights and option he has as to whether to give sworn evidence or to
remain silent must be exercised in that trial unless an Appellate Court
on appeal had made an order setting aside the conviction and
ordering a retrial.

Burden of proof vis-à-vis right to remain silent

Learned counsel for the appellant had also argued of the need
for this Court to revisit the law on the burden of proof vis-à-vis right to
remain silent. It is the contention of the appellant that the insertion of
the phrase “prima facie case” in the new section 180 of the Criminal
Procedure Code [“CPC”] (Act 593), upon the deletion of the phrase
“if unrebutted would warrant a conviction” as in the old section 180
CPC, had created a further problem in the absence of a clear
definition of the phrase “prima facie case” within the new section 180
CPC. Learned counsel for the appellant submitted that problems will
arise as to the effect of applying the test of maximum evaluation of
the prosecution evidence, upon an accused exercising his right to
remain silent. Learned counsel for the appellant also submitted that
the position of the law in relation to an accused person exercising his
 44

right to remain silent, as pronounced by the Court of Appeal in the

case of Looi Kow Chai & Anor. v. P.P. (2003) 1 CLJ 734 would not
only be in defiance of the correct burden of proof under the new
section 180 CPC, but also would reduce the coronated status of the
substantive right to remain silent to a mere illusory right.

With respect to the above argument of learned counsel for the

appellant, I am of the view that when the appellant chooses to remain
silent, the Court is put in a situation where it has no other choice but
to convict the appellant on both charges as the appellant had failed to
rebut the evidence adduced by prosecution’s witnesses. The High
Court in the present case at the end of the prosecution’s case had
ruled that a prima facie case has been made out and in coming to
that decision, the Court had relied on the maximum evaluation
principle as laid down in the earlier decided cases of the Appellate
Courts. In the case of Looi Kow Chai & Anor. v. P.P. [supra] the
Court of Appeal at page 752 said:

“It therefore follows that there is only one exercise that a

judge sitting alone under section 180 of the code has to
undertake at the close of the prosecution case.
He must subject the prosecution evidence to maximum
evaluation and asks himself the question, am I prepared
to convict him on the totality of the evidence contained in
the prosecution case? If the answer is in the negative
then, no prima facie case has been made out and the
accused would be entitled to an acquittal.”
 45

It was also explained in that case that there is no burden on the

prosecution to prove a case beyond reasonable doubt at the end of
the prosecution’s case. This was stated at page 757 as follows:

“If the passage is meant to suggest that the evidence led

by the prosecution must receive maximum evaluation,
then we would agree with it. But if what is meant is that
the court ought to go further and determine whether the
prosecution at the end of its case has proved the case
against the accused beyond a reasonable doubt, then we
find ourselves in disagreement with the learned judge in
that case. In our view, subjecting the evidence of the
prosecution to maximum evaluation to determine if the
defence is to be called does not mean that the
prosecution has to prove its case beyond a reasonable
doubt at this intermediate stage.”

It is my view that an accused’s right to remain silent is not at all

infringed by the principle of “if unrebutted would warrant a conviction”.
It means what it says. The evidence adduced must be such that it
must warrant a conviction if it is unrebutted. Therefore, the
appellant’s failure to call other witnesses to rebut the prosecution’s
case leaves the Court with no other alternative but to convict him.

In dealing with the question as to the position of the law at the

end of the prosecution’s case and the steps to be taken by the trial
Judge, useful reference may be made to the judgment of this Court in
 46

Balachandran v. P.P. (2005) 1 AMR 321 where the following

pronouncements were made:

(a) In deciding whether a prima facie case has been

established under the new section 180 CPC, a maximum
evaluation of all the evidence adduced by the prosecution
must be done and a prima facie case is one that is
sufficient for the accused to answer, and the evidence
adduced must be such that it can only be surmounted by
evidence in rebuttal.
(b) If the evidence is unrebutted, and the accused remains
silent, he must be convicted. Therefore, the test to be
applied at the end of the prosecution’s case is whether
there is sufficient evidence to convict the accused if he
chooses to remain silent, which if answered in the
affirmative, means that a prima facie case has been made
out.
(c) Whenever the accused has chosen to remain silent, there
is no necessity to re-evaluate the evidence to determine
whether there is a reasonable doubt in the absence of
any further evidence.

Conclusion

It is my judgment that the Court of Appeal had made a correct

finding in relying on the contents of the chemist report (P83), the
circumstantial evidence and the evidence in its entirety to come to the
 47

conclusion that it was the appellant and no one else who was
responsible for what happened to the deceased on that night. For
the reasons already stated I would dismiss the appellant’s appeal.
The conviction recorded and the sentence on the two charges passed
by the High Court and affirmed by the Court of Appeal are hereby
affirmed.

My learned brothers Arifin bin Zakaria CJ (Malaya), Nik Hashim

bin Nik Ab. Rahman, Augustine Paul and Hashim bin Dato’ Hj.
Yusoff, FCJJ, have seen this judgment in draft and have expressed
their concurrence.

(DATO’ ZULKEFLI BIN AHMAD MAKINUDIN)

Judge
Federal Court

Dated: 27th March 2009.

Counsel for the Appellant

Encik Mohamed Haniff Bin Khatri Abdulla, Encik Mohamad Nadzim Bin
Ibrahim, Rosal Azimin Bin Ahmad and Encik Amir Asree Bin Meor Nordin

Solicitors for the Appellant:

Messrs. Shamsuddin & Co.
Counsel for the Respondent:
Y.Bhg. Dato’ Nordin bin Hassan
Timbalan Pendakwa Raya
Jabatan Peguam Negara