Whenever a case receives a lot of publicity, there is a lot of pressure placed on the police and the prosecution, and the government of the day to SPEEDILY catch, charge and convict perpetrators for these crimes. And, when there is allegations that certain people in government may be involved, directly or indirectly, it may be even worse... In such situations, justice may not be done and the possibility of innocent persons being convicted and even send to the death row is very real.
The case of the killing of Altantuya Shaariibuu is one such case. 3 persons were initially charged - Abdul Razak bin Abdullah, Azilah bin Hadri and Sirul Azhar bin Umar. At the High Court, at the end of the prosecution's case, Abdul Razak bin Abdullah was acquited and
discharged, and prosecution did not file any appeal. The High Court found Azilah and Sirul Azhar guilty of murder and sentenced them to death.. For murder, there is the mandatory penalty of death - courts have no other choices when it comes to sentencing.
Both Azilah and Sirul Azhar appealed, and the Court of Appeal unanimously allowed the appeal and both of them were free. Thereafter, the Federal Court allowed the prosecutions appeal, and they both are now once again faciung the death penalty.
I thought that it would be interesting to see why the 3 judges of the Court of Appeal felt that both Azilah and Sirul Azhar's convition should be set aside. I have yet to read the Federal Court judgment - but I would like to iuvite all of you to have a look at the Court of Appeal judgment of this case.
Looking at the whole evidence and
circumstances of this case, we are of the view that this is not a fit
and proper case for us to invoke the proviso. The circumstances relied
upon by the prosecution had not been fully and cogently established and
the chain of evidence is not complete. We cannot say if a reasonable
tribunal properly directed would have convicted the appellants on
available evidence. The court below had ignored and overlooked salient
facts and evidence favourable to the appellants which resulted in
serious and substantial miscarriage of justice to the appellants. In our
judgment, the cumulative effect of these non-directions rendered the
convictions of the appellants unsafe. Furthermore since the
prosecution's case relied on circumstantial evidence, we have to
adequately caution ourselves, in line with what has been said to be "the
combined strength of strands to make a rope strong enough to hang" in Chan Chwen Kong v. PP [1962] 1 LNS 22;
[1962] MLJ 307. It is our judgment that the circumstantial evidence are
insufficient and not strong enough to sustain the finding of guilt of
the appellants. We are conscious that a heinous crime has been committed
but where the guilt of the appellants had not been satisfactorily
proved, we are constrained to give the benefit of doubt to the
appellants. We, unanimously, allow both appeals. Conviction and sentence
by the High Court is set aside. The appellants are accordingly
acquitted and discharged.
We have to very concerned about such cases like this as it can have a tendency to set precedence that will impact all future cases in Malaysia - usually, in my opinion, to the detriment of the accused and to the advantage of the prosecution.
AZILAH HADRI & ANOR v. PP
COURT OF APPEAL, PUTRAJAYA
MOHAMED APANDI ALI JCA; LINTON ALBERT JCA; TENGKU MAIMUN JCA
[CRIMINAL APPEALS NO: B-06A-19-2009 & B-06A-19A-2009]
23 AUGUST 2013
JUDGMENT
Tengku Maimun JCA:
[1]
There are two appeals before us, both against conviction and sentence
passed by the High Court at Shah Alam. The first appeal B-06A-19-2009
was filed by Azilah bin Hadri (the first appellant) while the second
appeal B-06A-19A-2009 was filed by
Sirul Azhar bin
Umar
(the second appellant). My learned brothers, Apandi Ali JCA and Linton
Albert JCA have read and contributed valuable input and approved this
judgment. This is our judgment.
[2] The appellants were
members of the Unit Tindakan Khas (UTK) or the Special Action Unit of
Polis Diraja at Bukit Aman, Kuala Lumpur with the rank of Inspector and
Corporal respectively. They were charged with an offence under
s. 302 read together with
s. 34 of the Penal Code
ie, that in furtherance of their common intention, they had committed
the murder of one Altantuya Shaaribuu, a Mongolian citizen. The offence
was allegedly committed between 10pm on 19 October 2006 until 1am on 20
October 2006 at a place between Lot 12843 and Lot 16735, Mukim Bukit
Raja in the district of Petaling in the State of Selangor Darul Ehsan.
One Abdul Razak bin Abdullah (hereinafter referred to as the third
accused) was charged for abetting the appellants in the commission of
the murder. The cases of murder and abetment were heard together.
[3]
We do not wish to set out the facts in full. Suffice to state that the
deceased had an affair with the third accused. After the affair ended,
the deceased came to Kuala Lumpur on 8 October 2006 accompanied by her
maternal cousin and a friend to see the third accused but the third
accused refused to see her. The deceased had apparently blackmailed the
third accused and had threatened the life of his daughter.
[4]
To protect his family from the deceased's harassment and threat, the
third accused, apart from hiring a private investigator, had sought
assistance from one DSP Musa bin Safri to arrange for the police to
patrol the vicinity of his house at Damansara Heights. At this juncture
it is relevant to state that DSP Musa was not called as a prosecution
witness.
[5] The appellants (who do not personally know the
third accused) were the police officers who had agreed to undertake the
task of patrolling the house. The task was undertaken at the request of
DSP Musa initially to the first appellant which led to the first
appellant meeting up with the third accused at his office and thereafter
several telephone conversations and SMSes were exchanged between the
first appellant and the third accused. The first appellant then roped in
the second appellant to assist him in the said task. On the night of 19
October 2006 when the deceased came to the house of the third accused,
she was taken away in a car driven by the first appellant together with
the second appellant and SP7 in the said car. Later, at Bukit Aman, the
deceased was last seen in the car of the second appellant.
[6]
A police report lodged on 20 October 2006 on the disappearance of the
deceased triggered police investigation. On 6 November 2006, fragments
of human bone and tissue were discovered in the forest area in Puncak
Alam, Selangor (within Lot No. 12843 and 16735, Mukim Bukit Raja,
Petaling). The DNA analysis proved to be one of Altantuya Shaaribuu.
Having examined the remains, the forensic pathologist (SP70) certified
that the cause of death was 'probable blast related injuries'.
[7]
The prosecution's case rests on circumstantial evidence. Apart from the
evidence showing the deceased to be last seen with the appellants, the
prosecution relied on the following evidence to connect the appellants
to the murder:
(i) the call logs from the handphone of the 1st appellant;
(ii)
the statements of the 1st appellant leading to the discovery of the
crime scene and of the 2nd appellant leading to the discovery of the
jewellery belonging to the deceased;
(iii) the CCTV of Hotel Malaya where the deceased stayed, showing the presence of the appellants on 18.10.2006;
(iv) the discovery of a pair of slippers smudged with blood in the 2nd appellant's car;
(v)
the smart tag device slot recovered from the 2nd appellant's car
showing the movement of the 2nd appellant's car on 19.10.2006 and
20.10.2006 entering/exiting through Kota Damansara/Jalan Duta;
(vi) the discovery of a spent cartridge (exhibit P185B) from inside the 2nd appellant's car;
(vii)
the Forensic Video Analysis photograph taken from CCTV at Plaza Tol
Kota Damansara showing the 2nd appellant's car passing through the said
Plaza Tol on 19.10.2006;
(viii) the discovery of the notes consistent with the handwriting of the 3rd accused from inside the bag of the 1st appellant.
[8]
In the course of the trial, the third accused had filed an application
for bail. The application was supported by an affidavit exculpating him
from the crime. Except for certain paragraphs which were expunged, the
learned trial judge accepted the affidavit of the third accused as
forming part of the evidence for the prosecution. His Lordship found
that the affidavit which was corroborated in material particulars by the
evidence of SP1, SP6, SP9 and the other surrounding circumstances have
negated and nullified the act of abetment as alleged against the third
accused.
[9] At the end of the prosecution's case, the learned trial judge found that the prosecution had made out a
prima facie
case against the first and second appellants. The appellants were
called to enter defence while the third accused was acquitted and
discharged. No appeal was filed by the public prosecutor against the
acquittal and discharge of the third accused.
[10] The
first appellant gave evidence under oath. His evidence is that at the
material date and time, he was not at the scene of the crime but at
Wangsa Maju as per his notice of alibi (exh. D430). He denied uttering
those statements relating to the scene which was admitted by the court
as evidence leading to discovery of facts under
s. 27 of the Evidence Act 1950.
It was also the evidence of the first appellant that he was not the
last person to be with the deceased. According to the first appellant,
he had handed over the deceased to the second appellant for the second
appellant to send back the deceased to the hotel.
[11] The
second appellant gave an unsworn statement from the dock. The statement
sets out the events from the time the first appellant called him on 18
October 2006. The statement explains his presence with the first
appellant at Hotel Malaya on 18 October 2006 and at the third accused's
house on 19 October 2006. He also sets out the events after 20 October
2006 ie, between 31 October 2006 until 5 November 2006 when he was on
duty escorting the Prime Minister to Pakistan; the events that took
place after he was brought back to Kuala Lumpur from Pakistan on 6
November 2006 and the events which took place on 7 November 2006 where
he was said to make the statements leading to the discovery of the
jewellery belonging to the deceased. In essence his defence was that he
has been made a 'scapegoat'.
[12] The learned trial judge dealt with the defence in the following manner:
150.
Having heard the defence of the First and the Second Accused, what is
required of the court to decide at this stage, is whether the
prosecution in the light of the defence's case has proved its case
beyond reasonable doubt for the accused to be found guilty and convicted
as charged or whether the defence have cast reasonable doubt which
warrant their acquittal.
151. The First Accused did not call any
of his witness to support his defence and his alibi. The station diary
(D428) was likewise not formally proven. The law relating to the
non-calling of a witness by the defence is well settled ie,
notwithstanding that, it should not be made subject of adverse comment
by the court and that s. 114(g) of Evidence Act
should not be invoked against the accused person. The court must still
consider whether he has nevertheless succeeded in casting a reasonable
doubt on the prosecution's case.
152. The law relating to the
weight to be attached to the unsworn statement from the dock which is
not subjected to cross examination by the prosecution, is likewise
settled ie, notwithstanding that the weight to be attached to this
category of defence may not be the same as one attached to the defence
upon evidence on oath, but the court must no (sic) reject it ipso facto, instead must consider it for whatever it worth (sic)
having regard to the other evidence available and to see whether the
defence has succeeded in casting a reasonable doubt on the prosecution's
case.
153. I have kept at the forefront of my mind of the two
aforesaid principles in considering the respective defence of these two
accused persons.
154. Having heard the submission of both the
defence and the prosecution and having considered and tested the defence
put up by both the First and Second Accused person, individually and
jointly against the totality of the evidence for the prosecution, I find
that the defence of each of the accused have essentially been one of
denial, of blaming one another, irreconcilable and ambivalent.
Consequently they have failed to raise any reasonable doubt on the
prosecution's case. To respectfully paraphrase the famous words of
Thomson CJ in Chan Chwen Kong v. PP [1962] 1 LNS 22;
[1962] MLJ 307 ie, the several strands of physical and circumstantial
evidence of the prosecution have remained unrebutted, unexplained and
unanswered by both accused persons. The combined strength of those
strands of evidence when twisted together has formed two ropes, strong
enough to hang each accused person.
[13] In
the final paragraph of the judgment, the learned trial judge states that
he was satisfied that the prosecution had proved the case against both
the appellants beyond reasonable doubt and accordingly found both
appellants guilty and convicted as charged whereby both the appellants
were sentenced to death.
The Appeal
[14] Before us, learned counsel for the first appellant advanced the following grounds of appeal:
(i)
the learned trial judge did not direct his mind, did not consider and
did not evaluate exh. D428 (the station diary) as to whether it had
casted a reasonable doubt on the prosecution's case.
(ii) The
learned trial judge failed to address his mind that the data in the call
logs P27, P370 and P372B were tampered with and that there were
alterations, not authentic and were inaccurate.
(iii) The learned trial judge erred in law and in fact in admitting the information under s. 27 of the Evidence Act 1950 allegedly given by the first appellant.
(iv)
The learned trial judge did not consider the fact that the first
appellant could not have the possession and control of C4 explosives.
(v)
The learned trial judge erred in law and in fact in failing to consider
the first appellant's defence independently as to whether it casted a
reasonable doubt and that the learned trial judge erred in considering
the second appellant's unsworn statement that both appellants were
"blaming each other" in convicting the first appellants.
[15]
The second appellant had also put forth five main grounds for the
appeal. However, in the course of the submission, learned counsel
decided not to pursue the first ground ie, that the second appellant in
the trial in the High Court had been exposed and had received adverse
publicity that had resulted in a mistrial. That leaves four main grounds
of appeal which are:
(i) That the failure to call DSP
Musa and to tender crucial evidence in the form of SMS communication
between DSP Musa and the third accused amounted to a serious suppression
of evidence resulting in an abuse of the process of the court and
thereby a mistrial.
(ii) That the trial judge had wrongly admitted s. 27
statement purportedly made by the second appellant purportedly leading
to the discovery of certain "barang-barang kemas" in a black jacket in
the second appellant's room of his house.
(iii) That the trial
judge had wrongly relied on the evidence of blood stain purportedly
found on a pair of slippers alleged to be in the second appellant's car
which was held to be proof of his guilt.
(iv) That the trial judge
had wrongly relied on mtDNA evidence of the blood stain found on the
slippers which was held to prove the guilt of the second appellant.
[16] We shall now consider the grounds raised by the appellants.
Defence Of Alibi Of The First Appellant
[17]
The issue of alibi forms the subject of the first appellant's first and
fifth grounds of appeal. The first appellant contended that he was not
at the scene of the crime at the particular time stated in the charge
which is between 10pm on 19 October 2006 until 1am on 20 October 2006. A
notice of alibi was served on the prosecution on 24 May 2007. The
notice (exh. D430) states that:
(i) Dari jam lebih kurang 10.00 malam hingga jam lebih kurang 10.25 malam 19/10/2006 tertuduh berada di kawasan Bukit Aman.
(ii)
Dari jam lebih kurang 10.25 malam sehingga jam lebih kurang 11.45
malam, pergi, balik dan berada di Seksyen 4 Wangsa Maju di gerai makan
dekat Carrefour Kuala Lumpur;
(viii) Dari jam lebih kurang 11.45 malam 19/10/2006 hingga jam lebih kurang 12.20 pagi 20/10/2006 berada di kawasan Bukit Aman.
(ix)
Dari jam lebih kurang 12.20 pagi 20/10/2006 beredar dari Bukit Aman dan
sampai di Putrajaya lebih kurang 1.00 pagi 20/10/2006.
[18]
In support of the defence of alibi, the first appellant tendered a copy
of the station diary (exh. D428) which was confirmed by the prosecution
to be an authentic copy. The station diary states:
19/10/06 2218 - C/Insp Azilah ambil senjata Glock EAH 387 dan 2 magazine Glock, keadaan baik.
19/10/06 2210 - C/Insp Azilah berlepas ke Putrajaya untuk tugas eskot Timbalan Perdana Menteri.
[19]
The call detail record of the first appellant's handphone No.
0193636153 (exh. P27) produced by the prosecution shows the following:
10/19/2006 - 22:15:51 - CPEKANSUBANG
10/19/2006 - 22:19:33 - CKGMELAYUSBG
10/19/2006 - 22:43:06 - PUNCAKALAMHWY4
10/19/2006 - 23:16:46 - PUNCAKALAMHWY4
[20]
Thus, based on the call log, the first appellant was at Pekan Subang
area at 10.15pm on 19 October 2006 and was at Kg Melayu Subang at
10.19pm. On the other hand, the station diary shows that the first
appellant was at Bukit Aman at 10.18pm collecting a Glock. The entries
in the station diary, as confirmed by ASP Tony Anak Lunggan, the
investigating officer (SP75) is a true and accurate record as provided
for under
s. 97 of the Police Act 1967.
[21]
It was contended by learned counsel for the first appellant that the
evidence of D428 had casted a reasonable doubt on those entries in the
call logs and that the learned trial judge should have directed his mind
to the two contradicting sets of evidence and in failing to do so, had
seriously misdirected himself.
[22] Having perused the
grounds of judgment, we do not find anywhere in the said judgment that
the learned trial judge had considered whether the station diary and the
evidence that the first appellant was at Wangsa Maju and at Bukit Aman
at the material time shows or tends to show that by reason of the
presence of the first appellant thereat, he cannot be or is unlikely to
be at Puncak Alam. In the circumstances, we agree with learned counsel
that the learned trial judge had misdirected himself by way of
non-direction in failing to consider the evidence.
[23] It is trite law that an accused person putting forward a defence of alibi bears no legal burden to establish it (
Yau Heng Fang v. PP [1985] 2 CLJ 22; [1985] CLJ (Rep) 350; [1985] 2 MLJ 335;
Illian & Anor v. PP [1988] 1 LNS 139;
[1988] 1 MLJ 421). In this regard, the learned trial judge had further
misdirected himself in making a finding that D428 was not formally
proven when the finding that ought to have been made was whether the
defence had casted a reasonable doubt on the prosecution's case that the
first appellant was at the scene of the crime, which the learned trial
judge had failed to do. The learned trial judge had indeed failed to
consider the defence of alibi of the first appellant sufficiently and
independently of the second appellant in coming to the conclusion that
"... the defence of each of the accused have been essentially one of
denial...".
The Call Logs And Coverage Predictions
[24]
For purposes of proving that the first appellant was at the crime
scene, the prosecution relied on exhs. P27, P370 and P372B. The exhibits
are computer print-outs which were obtained pursuant to the request
made by the police on 30 May 2007 after the notice of alibi was served
on the prosecution on 24 May 2007.
[25] In respect of P27,
it was produced by the prosecution to show the movement of the first
appellant when he was using his handphone. There is no dispute that P27
is not the original document. The original document is exh. P370. P370
went through a series of alteration before it became P372B and then P27.
P370 and P372B are therefore the source documents for exh. P27.
[26]
Exhibit P27 was prepared by SP61, the executive at the Special Project
and Investigation Division, CELCOM. He 'scripted' the document to show
the 'site name' and 'region'. There were no 'site name' and 'region' in
the source documents and the columns in P370 and P372B were arranged
differently ie, 'Cell ID' and 'LAC' inversed and 1,800 calls from P372B
were removed before it was reduced into exh. P27.
[27] Exhibit P370, the location mapping dated 13 June 2007 was prepared by Syed Mustaqim (SP62). SP62 is the IT Analyst.
Vide
his covering letter (exh. P369) SP62 emailed exh. P370 to SP61. Upon
receipt of the email, SP61 printed out exh. P370 (which SP61 refers to
as 'raw data') from his computer and using the 'raw data', prepared exh.
P27. The issue raised by learned counsel for the first appellant is
that exh. P370 was wrongly admitted as it does not satisfy the condition
of
s. 90A(2) of the Evidence Act, 1950 which provides:
For
the purpose 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 is responsible for the
management and operation of that computer or for the conduct of the
activities for which that computer was used.
[28]
We noted that it was not the evidence of SP61 that he was the person
responsible for the management and operation of that computer. What he
said was:
Pada masa saya mencetak dokumen ini daripada
computer saya, computer saya tersebut adalah di dalam berkeadaan baik
dan di dalam perjalanan fungsinya yang biasa begitu juga printer
untuknya.
[29] Despite the challenge, the
learned trial judge did not make a finding that SP61 was the person
responsible for the management and operation of that computer and hence
the legal and procedural requirement of
s. 90A(2) of the Evidence Act 1950
has been satisfied. In this regard, we find that there is merit in the
complaint raised by learned counsel for the first appellant as in
relation to such piece of evidence, the prosecution must not only prove
its admissibility, but must ensure that all other established legal and
procedural requirements are stringently adhered to (see
PP v. Datuk Hj Sahar Arpan [1999] 3 CLJ 427).
[30]
Further, in preparing exh. P27, SP61 admitted to omitting some of the
data found in P370, example data marked "TRC". According to SP61, he did
not know or understand what "TRC" means but that he was told by SP62
that "TRC" is not relevant. SP62 in his evidence was not able to explain
what "TRC" meant as "ianya di luar tugas saya." The other information
which was found in exh. P370 which SP61 omitted to produce in exh. P27
relates to information on particular time and date. In this regards SP61
said "Saya mengakui P27 ini terdapat 117 transaksi yang diragui
ketepatan datanya yang saya hanya menyedari setelah saya menyemak P344."
[31] As to the source of the data in exh. P370, the evidence of SP62 states:
Data-data
dalam P370 adalah dari switch.... Data-data yang ditunjukkan dalam P370
adalah lengkap untuk setiap transaksi berkaitan talian 019 3636153.
Sepanjang pengetahuan saya, ada berlaku ketinggalan data yang diambil
dari switch. Oleh itu P370 ini mungkin juga berlaku ketinggalan data
atau data yang tidak diperolehi.
[32] There is also this part of the evidence by SP62 in examination-in-chief:
Pada
kali pertama saya 'retrieved' data dalan P370, saya ada menyemaknya dan
dapati terdapat kesilapan dan ketidaktepatan. Kesilapan yang berlaku
bukan pada sumber data tetapi kesilapan teknikal ketika membuat
'scripting' iaitu berkaitan kesilapan kedudukan LAC dan Cell ID untuk
call type mobile terminating. Maksud mobile terminating ialah panggilan
yang diterima dan termasuk juga text message yang diterima.
Berdasarkan
P370, kesilapan kedudukan LAC dan Cell ID tersebut iaitu untuk call
type untuk Voice MOT dan juga Voice MTC. Kesilapannya bukan untuk
kesemua transaksi tetapi hanya untuk transaksi pada 17.10.2006 sehingga
19.10.2006.... Kesilapan di muka surat 9 pula ialah pada transaksi
19.10.2006 jam 22.43.06; 23:16:46; 23:26:53 dan 23:48:39.
[33] In cross-examination of SP62 the following questions were asked:
S:
Setuju, jika nombor Cell ID diterbalikkan atau disalahletakkan di dalam
column LAC, interpretasi berkaitan lokasi atau site name berubah.
J: Setuju.
S:
Begitu juga jika nombor LAC disalahletakkan di dalam column Cell ID,
keadaan yang serupa berlaku iaitu 'site name'nya akan berubah.
J: Setuju.
S:
Kamu setuju, jika nombor Cell ID tidak diletakkan di tempat yang ianya
sepatutnya diletakkan, setuju yang 'site name' yang tertera juga tidak
akan tepat.
J: Setuju.
...
Put: Data sebenar dalam
data base Celcom berkenaan maklumat call detail records bagi 019 3636153
adalah sebenarnya berbeza dari P370 ini.
J: Setuju.
[34] In re-examination, this was the evidence of SP62:
Saya
bersetuju dengan peguam jika code Cell ID diletakkan di dalam column
LAC, ianya akan memberi interpretasi yang lain kerana secara umumnya,
jika Cell ID dimasukkan ke dalam code untuk LAC, lokasi site name akan
berbeza, tetapi group network mesti ada 'rules' yang mereka gunakan
untuk menentukan lokasi atau site name ini. Group Network Unit adalah
lebih arif di dalam penentuan lokasi ini. Saya tidak arif dalam perkara
ini.
[35] Obviously any mistake or uncertainty
which concerns the date 19 October 2006 and the time after 10pm is
crucial given that it forms the particulars of the alleged offence.
Consequently it is crucial for the learned trial judge to make a finding
on the reliability of exh. P370 in particular, whether mistake or
uncertainty if any, is material and whether it affects the site name as
stated in P27.
[36] As for exh. P372B, it was prepared by
SP63, an engineer at CELCOM's Mobile Planning Division. Upon receipt of
exh. P370 from SP62, SP63 prepared P372B wherein he too added a new
column 'site name' and 'region' using the programme/system in the
computer. The system is maintained by another division ie, the 'Regional
Network Operation'. SP63 was also responsible for the preparation of
the chart called 'coverage prediction' (exh. P374) which was also relied
upon by the prosecution to show the movement of the first appellant.
[37]
It was the submission of learned counsel for the first appellant that
the chart does not show the scene of the crime and it is inaccurate as
to the actual geographical location of its coverage. In this respect,
learned counsel for the first appellant submitted that the coverage
prediction is inadmissible as its accuracy has not been proved and it
contravenes
s. 83 of the Evidence Act 1950.
Section 83
provides that the court shall presume that maps or plans purporting to
be made by the authority or the Government of Malaysia or the Government
of any State were so made and are accurate.
[38] For ease of reference, the evidence in examination-in-chief of SP63 on how he came about doing the chart is reproduced below:
Pada
16.6.2007 saya ada bersama-sama ASP Tonny dan DSP Gan dan seorang
anggota polis bernama Chiam pergi ke beberapa tempat... Saya dibawa ke
Bukit Damansara terus ke Bangsar, kemudian ke Bukit Aman. Selepas itu
saya di bawa ke Kota Damansara melalui TOL Jalan Duta melalui Lebuhraya
Utara-Selatan, kemudian Lebuhraya NKVE dan keluar TOL Kota Damansara
menghala ke Puncak Alam melalui Jalan Lama Sg. Buloh dan masuk ke laluan
dari Subang ke Puncak Alam dan terus ke satu tempat yang dikatakan
tempat kejadian di satu kawasan Bukit di Puncak Alam sebelum balik
semula ke Kuala Lumpur.
... Tujuan saya dibawa ke tempat-tempat
tersebut untuk saya menunjukkan kedudukan Stesyen Pemancar Celcom di
sepanjang jalan ke tempat-tempat tersebut kepada pihak polis.... Saya
bawa bersama ketika itu suatu alat yang dipanggil "drive measurement
tools" iaitu untuk merekodkan panggilan yang saya sendiri buat di
sepanjang jalan yang kami lalui... alat ini dapat mengenalpasti lokasi
Stesyen Pemancar yang 'capture' setiap panggilan saya di laluan
tertentu....
... Selepas balik ke Kuala Lumpur dari tempat
kejadian, saya telah menghasilkan satu carta yang dipanggil 'coverage
prediction' untuk Stesyen Pemancar. Saya siapkan pada 18.6.2007 dengan
menggunakan komputer saya. Komputer saya ketika itu dalam keadaan baik
di dalam perjalanannya yang biasa. Saya bertanggungjawab dalam aktiviti
dan operasi komputer saya tersebut. Saya cetak senarai tersebut pada
hari yang sama saya menyediakannya...
[39] The following is the cross-examination of SP63:
S: Apakah stesyen pemancar dalam Bahasa Inggeris.
J: Base Station (BS).
S: Base station dapat dikenalpasti berdasarkan 4 digit pertama dalam satu Cell ID
J: Ya.
S: Cell ID yang akan menentukan di mana base station dalam site name atau berada di lokasi mana.
J: Setuju.
S: Di dalam Call Details Record, Cell ID juga menentukan base station mana yang digunakan untuk sesuatu transaksi.
J: Ya.
...
S: Setuju 'the exact location' pengguna sesuatu handphone semasa transaksi dilakukan tidak dapat ditentukan.
J: Setuju.
S: Cell ID hanya menunjukkan sesuatu transaksi panggilan telah mengguna khidmat BS tersebut.
J: Ya.
S:
Apabila sesuatu transaksi berlaku kemungkinan pemanggil berada di
radius BS atau berada di sesuatu BS yang lebih kuat yang telah
memberikan perkhidmatan transaksi pemanggil tersebut.
J: Ya, setuju.
S: Jika 'line congested' transaksi panggilan tersebut boleh pergi ke BS yang lain untuk menyempurnakan panggilan tersebut.
J: Ya, boleh dengan syarat BS lain tersebut mempunyai liputan di kawasan pemanggil tersebut.
...
S: Kekuatan sesuatu BS, biasanya radiusnya berapa jauh untuk memberi sesuatu khidmatnya.
J: Tidak ada sesuatu radius yang tepat dan tetap.
S: Setuju, liputan di dalam sesuatu kawasan oleh sesuatu BS adalah 'overlapping' dengan beberapa BS lain.
J: Ya, setuju.
[40]
SP63 also said "Dalam keadaan 'down' ianya (BS) tidak berfungsi" and
that he does not know if there is any BS which was 'down' in P27 and
P372B on the relevant dates. SP63 was also asked in cross-examination
"Sekiranya terdapat kemungkinan bahawa maklumat mengenai site name di
dalam P372B, P27 dan P370 telah diubahsuai dan tidak tepat, ianya sukar
ditentukan" to which he answered "Ya, setuju."
[41] SP63 was further asked:
S: Merujuk kepada P374, coverage prediction is sebenarnya telah sedia ada di dalam sistem komputer kamu.
J:
Saya tak faham soalan, tetapi maklumat mengenai kedudukan stesyen
pemancar sebagaimana P374 memang telah sedia ada di dalam sistem
komputer saya.
S: Siapakah yang memasukkan data mengenai kedudukan stesyen pemancar tersebut di dalam sistem komputer kamu.
J: Mengenai kedudukan stesyen-stesyen sebagaimana P374, ianya di masukkan oleh kakitangan jabatan saya.
S: Adakah pemetaan di dalam P374 ini mengikut maklumat pemetaan sebagaimana Jabatan Pemetaan.
J: Saya tak pasti.
S:
Adakah maklumat di dalam P374 ini ada dihantar ke Jabatan Pemetaan
untuk mengesahkan kawasan-kawasan sebenar pemetaan P374 tersebut.
J: Tidak.
[42]
If the information on the base station is already available as
testified by SP63, one wonders why the need for SP63 to be taken by the
police to the specific routes before he undertook the task of preparing
the coverage prediction anew in P372B.
[43] Be that as it
may, SP63 agreed that if there are any physical changes to the base
station, the best serving site can be altered but he does not know when
was the coverage prediction updated; he admitted that in P27 there were
about 400 transactions whereas in P327B, there were about 1,800
transactions.
[44] The learned trial judge found the
evidence to be highly technical and as there was no rebuttal evidence
from any other witness, he accepted the evidence on the call logs and
coverage prediction.
[45] Looking at the evidence set out
above, it is our view that notwithstanding the absence of any rebuttal
evidence from any other witness, the testimonies of SP61, 62 and 63 had
inevitably put into issue the reliability and accuracy of the call logs
and the coverage prediction.
[46] These call logs and
coverage prediction are important pieces of evidence to establish the
presence of the first appellant at the scene of the crime. In our
judgment it is essential for the learned trial to address his mind to
the challenge raised by the defence on the exhibits and to make a
finding whether there was in fact an alteration or tampering of the data
and whether the authenticity of the data was questionable or otherwise.
Regrettably, this His Lordship failed to do, which in our judgment
amounts to serious misdirection rendering the said exhibits unsafe to be
relied upon.
Information Leading To Discovery Of Fact Under s. 27 Of The Evidence Act 1950
[47] After a trial within a trial, the learned trial judge admitted the statements made by the appellants under
s. 27 of the Evidence Act 1950.
The statement said to be given by the first appellant relates to the
discovery of the scene of the crime and in respect of the second
appellant, the discovery of the jewellery belonging to the deceased.
[48] In particular, the statements attributed to the first appellant were:
(i)
in an interview where the first appellant was said to have informed Ch
Insp Koh Fei Cheow (SP20) "dia boleh membawa saya untuk cuba mencari
tempat kejadian perempuan Mongolia dibunuh tetapi OKT tidak tahu tentang
nama kawasan dan kurang pasti lokasi kawasan"; and
(ii) at the
scene where the first appellant said "Inilah tempatnya perempuan
Mongolia diletupkan" and "Inilah tempat perempuan Mongolia ditembak."
[49]
The statement said to have been made by the second appellant was "Saya
boleh tunjukkan barang kemas bilik perempuan... (excluded by the court)
ada saya simpan di dalam rumah saya di Kota Damansara.". The statement
was said to be made to ASP Zulkarnain bin Samsudin (SP23).
[50] In challenging the admission of
s. 27
information, learned counsel for both the appellants had raised several
grounds. Looking at the grounds and the submissions, we find that in
essence the complaints relate to the non-direction by the learned trial
judge of the issues raised in respect of the contradictions in the
evidence for the prosecution and on the failure of the learned trial
judge to address his mind whether the information leading to the
discovery was in fact given by the appellants.
[51] Before we proceed, we pause to remind ourselves of the approach to be taken as regards
s. 27 information as stated by Abdul Hamid Omar LP in
Pang Chee Meng v. PP [1992] 1 CLJ 39; [1992] 1 CLJ (Rep) 265; [1992] 1 MLJ 137:
... we are firmly of the view that in invoking section 27 of the Evidence Act 1950
the courts should be very vigilant to ensure the credibility of the
evidence by the police personnel in respect of the section, which is so
vulnerable to abuse.
[52] We shall now deal
with the statement of the first appellant. Making reference to his ID,
the evidence of SP20 is that while interviewing the first appellant on 6
November 2006 "pada jam 5.23 petang - semasa membuat temubual dengan
OKT, OKT telah dengan kerelaan memberitahu saya bahawa dia boleh membawa
saya untuk cuba mencari tempat kejadian perempuan Mongolia dibunuh,
tetapi OKT tidak tahu tentang nama kawasan dan kurang pasti lokasi
tempat kejadian. OKT dengan kerelaan untuk menunjukkan jalan-jalan ke
tempat tersebut.
[53] The interrogating officer, DSP
Zainuddin bin Abdul Samad (SP21) testified "pada jam 4 lebih petang 6
November 2006 tertuduh pertama ada memberitahu saya yang beliau ingin
menunjukkan tempat kejadian secara agak-agak kepada pegawai penyiasat...
Saya terus menghubungi IO iaitu ASP Tonny mengenai hasrat tertuduh
pertama... Apa yang saya maksudkan dengan tertuduh pertama berhasrat
menunjukkan tempat kejadian secara agak-agak kepada pegawai penyiasat
maksud saya beliau berkata begitu kepada saya". SP21 had followed SP20
to the scene in the same Pajero and when they reached the scene, SP21
said he does not know the name of the area.
[54] Worthy to
note is the following two points. The first point is that there is no
evidence from either SP20 or SP21 as to the words uttered by the first
appellant. What was said in their evidence was their narration of what
was allegedly said to them by the first appellant. Secondly, nowhere in
the evidence of SP20 and SP21 did the appellant ever mention the word
"Puncak Alam". The evidence of SP20 shows that at about 5.20pm "OKT
tidak tahu nama kawasan". However, we noted the following evidence from
the prosecution witnesses.
[55] Pegawai Turus Siasatan Khas
IPK Kuala Lumpur, Supt Zainol bin Samah (SP19) states in his evidence
that "selepas tertuduh kedua ditangkap pada jam lebih kurang 4.15
petang..., saya telah dimaklumkan oleh ASP Tony ak Lunggan mengatakan
bahawa kedua-dua tertuduh pertama dan tertuduh kedua telah pun membuat
pendedahan. Pendedahan yang dibuat ialah mereka bersetuju untuk
menunjukkan tempat kejadian di kawasan Puncak Alam."
[56]
The evidence of SP75 "Pada 6 November 2006 di sebelah petang saya
berjumpa DSP Zainuddin. DSP Zainuddin memaklumkan saya yang tertuduh
pertama dan tertuduh kedua telah ingin membawa dan menunjukkan tempat
kejadian di kawasan Puncak Alam. Saya sampaikan maklumat ini kepada DSP
Gan dan Supt Zainol. Tetapi saya tidak maklumkan maklumat ini kepada Ch
Insp Koh Fei Cheow, tetapi saya meminta Ch Insp Koh Fei Cheow membawa
tertuduh pertama menunjukkan tempat kejadian. Ketika itu selain dari
kawasan tempat kejadian dikatakan Puncak Alam, saya tidak mengetahui di
mana lokasi khususnya."
[57] Supt Amidon Anan, the Head of
the Forensic team (SP58) testified that at about 11am on 6 November 2006
he received the first phone call from SP19 followed by another phone
call at 3.15pm asking him to standby to go to the crime scene and at 5pm
he was asked to go to UiTM Puncak Alam.
[58] The first appellant's version is that he never gave the
s. 27
information. It was his case that in fact the police had prior
knowledge of the location and that he was led to the scene by SP20 and
SP21 whom according to the first appellant staged a show as though the
first appellant had led to the discovery when the actual fact was that
this was the case of the police leading the accused to a recovery of the
deceased's remains.
[59] Now, if SP58 had been asked at
about 5pm to gather at UiTM Puncak Alam before the first appellant was
interviewed by SP20 to whom the information was allegedly given at about
5.20pm; if the first appellant, as the evidence of SP20 disclosed, did
not know the name of the place and if, as per the evidence of SP21 that
even at the time when the scene was discovered, SP21 does not know the
name of the place, from where did the police obtain the information on
Puncak Alam?
[60] Further, SP20 testified as follows:
S: Sila beritahu mahkamah apakah perkataan yang sebenar dikatakan oleh Tertuduh Pertama apabila menunjukkan tempat kejadian.
J: Tertuduh Pertama memberitahu saya "Inilah tempat perempuan Mongolia diletupkan."
S: Kemudiannya adakah Tertuduh Pertama menunjukkan kamu tempat lain selepas itu.
J: Ya, ada.
Selepas
itu Tertuduh Pertama telah membawa saya pergi ke satu tempat lapang di
mana dalam jarak lebih kurang 30 kaki dari tempat letupan dan
memberitahu saya "inilah tempat perempuan Mongolia ditembak." Maklumat
ini juga dicatatkan... dalam I.D. saya.
Selepas itu, saya telah
mengawal tempat kejadian tersebut dan kemudiannya memaklumkan kepada
Supt. Zainol Samah (SP19) dan DSP Gan serta ASP Tonny berkenaan
kejumpaan tempat kejadian tersebut. Saya maklumkan ketiga-tiga pegawai
tersebut melalui handphone. Saya tidak tahu di mana mereka berada ketika
itu.
Semasa saya nampak rangka dan serpihan tulang-tulang yang
kami percaya tulang manusia, saya nampak jelas tanpa bantuan cahaya
lampu. Ketika itu 'visibility' masih terang. DSP Zainudin (SP21) ada
juga bersama saya ketika itu. Beliau datang bersama saya, tetapi beliau
tidak terlibat di dalam peranan mencari tempat kejadian ini...
[61] SP21 states:
Selepas
berhenti Ch. Insp Koh bawa Tertuduh keluar dan saya mengikut di
belakang mereka dan tindakan seterusnya Ch. Insp Koh yang lakukan dan
arahkan. Apa yang saya nampak, mula-mula Ch. Insp Koh telah bersama
Tertuduh Pertama dan anggota escort telah pergi ke tempat yang dikatakan
tembakan dilakukan ke atas wanita Mongolia dan selepas itu saya lihat
mereka pergi ke dalam belukar iaitu tempat yang dikatakan wanita
Mongolia tersebut diletupkan. Saya hanya ikut Ch. Insp. Koh dan Tertuduh
Pertama serta escort ke tempat yang wanita Mongolia ditembak, tetapi
saya tidak ikut mereka pergi ke tempat yang dikatakan beliau diletupkan.
Saya tidak ikut ke tempat tersebut kerana ianya tidak membantu saya
untuk maksud mengetahui tempat kejadian.
[62]
There is thus a contradictory account of what the first appellant said
and pointed out during their visit to the crime scene. According to
SP20, the first appellant led them and pointed first to the place where
the deceased was blown up and later to the place where the deceased was
shot. The evidence of SP21 on the other hand shows that the first
appellant had first led the police and pointed to the area where the
deceased was shot.
[63] SP20 had also testified in
examination-in-chief that upon discovery of the scene, he informed SP75
of the discovery through the handphone. This piece of evidence was
denied by SP75. According to SP75, there was no phone call from SP20
regarding the discovery of the crime scene. SP21 who was together with
SP20 did not see SP20 making any phone calls at the scene.
[64] During cross-examination of SP20, the following evidence was adduced:
S:
Semasa temubual, Tertuduh Pertama tidak memberitahu kamu nama kawasan
di mana beliau sendiri kata yang beliau kurang pasti lokasi tempat
kejadian tersebut.
J: Setuju.
S: Oleh itu pada masa itu tiada maklumat mengenai tempat kejadian.
J: Tak setuju kerana terdapat maklumat mengenai tempat kejadian tetapi secara umum.
S: Apakah maklumat umum yang kamu maksudkan.
J: Tertuduh Pertama boleh cuba mencari jalan-jalan yang menunjukkan jalan-jalan ke tempat tersebut.
...
S: Tidak pernahkah terlintas kepada kamu ketika itu, yang Tertuduh Pertama tidak tahu tentang tempat kejadian tersebut.
J: Ya, mungkin.
...
S:
Bila kamu kata di dalam pemeriksaan utama bahawa kamu berhenti beberapa
kali kerana silap jalan, ianya adalah disebabkan Tertuduh Pertama tidak
pasti jalan-jalannya.
J: Ya.
S: Adakah terlintas di fikiran kamu, pada masa itu yang Tertuduh Pertama sebenarnya tidak tahu tempat kejadian tersebut.
J: Ya, mungkin.
[65]
In re-examination, SP20 said "saya telah bersetuju dengan peguam ada
kemungkinan tertuduh pertama tidak mengetahui tempat kejadian kerana
tertuduh pertama tidak mengetahui lokasi tepat tempat kejadian dan sebab
kami telah beberapa kali sesat jalan."
[66] As regards the
second appellant, SP20 was also the officer involved in interviewing
the second appellant on 6 November 2006 at 2pm, together with ASP
Zulkarnain bin Samsudin (SP23). The relevant evidence of SP20 is
reproduced:
S: Apakah maklumat yang Tertuduh Kedua dedahkan.
J: Ianya berkaitan dengan barang-barang kemas yang dimiliki oleh perempuan Mongolia tersebut.
Saya sendiri dengar maklumat yang dinyatakan Tertuduh Kedua tersebut. Maklumat ini didedahkan kepada ASP Zulkarnain.
S: Apakah maklumatnya secara tepat atau sebenar.
J: Saya tidak ingat perkataan sebenar. Saya hanya ingat ianya berkaitan dengan barang-barang milik perempuan Mongolia tersebut.
Berdasarkan
maklumat Tertuduh Kedua tersebut, saya nampak ASP Zulkarnain membuat
repot polis mengenai pendedahan Tertuduh Kedua tersebut iaitu pada hari
yang sama.
Selepas ASP Zulkarnain membuat laporan polis, ASP
Zulkarnain mengetuai satu pasukan polis... dan bersama Tertuduh Kedua
telah bertolak ke rumah Tertuduh Kedua dengan dipandu (guided) oleh
Tertuduh Kedua...
...
Bilik tidur Tertuduh Kedua tidak
berkunci. Yang saya ingat, ASP Zulkarnain, saya, DPCorp Chiam dan
Tertuduh Kedua yang masuk ke dalam bilik tidur tersebut. Di dalam bilik
tersebut, Tertuduh Kedua telah membuka almari baju dan menunjukkan
sehelai jaket hitam. Saya nampak ASP Zulkarnain mengeluarkan jacket
hitam tersebut dan meletakkan di atas katil. Saya juga nampak ASP
Zulkarnain mengeluarkan barang-barang kemas dan jam dari poket bahagian
dalam jacket tersebut.
Merujuk kepada gambar ID60H... saya hadir semasa gambar-gambar ini diambil.
Sebelum
Tertuduh Kedua menunjukkan jacket tersebut, Tertuduh Kedua ada
memberitahu ASP Zulkarnain sesuatu tetapi saya telah lupa apa yang
beliau katakan. Saya juga tidak ingat lagi apa-apa perbualan di antara
Tertuduh Kedua dan ASP Zulkarnain selepas Tertuduh Kedua menunjukkan
jacketnya...
[67] The evidence of SP23 is that
in the course of interviewing the second appellant, the second
appellant said "Saya boleh tunjukkan barang kemas milik perempuan... ada
saya simpan di dalam rumah di Kota Damansara." At the house, the second
appellant was alleged to have said "Saya simpan barang kemas dalam
jaket." After the jewellery was taken out and put on the bed, SP23 asked
the second appellant "adakah ini barang-barang kemas yang dimaksudkan",
the second appellant nodded his head and pointed his finger to the
jewellery saying "inilah barang dia."
[68] It was further
the evidence of SP23 that "Tertuduh kedua sendiri keluarkan jaket
tersebut dan memberitahu sesuatu kepada saya. Akibat dari apa yang
beliau beritahu saya telah membuat pemeriksaan di dalam jaket tersebut
dan menjumpai tiga jenis barang... Semasa dalam bilik di rumah tertuduh
kedua, apabila tertuduh kedua mengeluarkan jaket dari dalam almari,
tertuduh kedua ada berkata sesuatu iaitu "saya simpan barang kemas di
dalam jaket".
[69] The second appellant similarly denied
giving such information relating to the jewellery of the deceased. His
version is that it was SP23 who had said the following words to him
"Macam inilah
Sirul, kalau engkau
setuju, engkau ikut aku, kau camkan barang-barang itu, kau pegang dan
tunjuk ke arah barang itu sambil cameraman ambil gambar."
[70]
Inside his room, the second appellant contended that SP23 had forced
him to hold one black jacket for the purpose of him being photographed
twice. SP23 then took out some items from inside the same jacket and
placed them on the bed before forcing him to point by his finger at all
those items again for his pictures to be taken. The second appellant is
thus saying that the police had planted the jewellery in his house.
Relevant to this issue is the fact that the keys to the house was in the
possession of the police prior to the search of a black jacket from
inside the unlocked cupboard in the second appellant's unlocked room.
[71] The evidence of SP20 and SP23 will now be examined against the second appellant's version.
[72]
According to SP20 who was together with SP23 and had witnessed the said
discovery, the jacket was not taken out by the second appellant but was
taken out by SP23. The jewellery was also put on the bed by SP23 where
SP23 then said "adakah ini barang-barang kemas yang dimaksudkan" after
which the second accused was said to nod his head and replied "inilah
barang dia." SP23 on the other hand said that it was the second
appellant who took a black jacket. While taking out the said jacket the
second appellant told SP23 "saya simpan barang kemas di dalam jacket."
[73] The testimony of Corp Chiam Swee Guan (TWR2 in
voir dire
) to whom the second appellant was handcuffed throughout the process of
discovery shows the following. At one point in his evidence, he said
"ASP Zulkarnain tanya tertuduh kedua berkenaan dengan barang kemas yang
berada di atas katil, lalu tertuduh kedua beritahu inilah barang dia."
At another point when he was asked "Apa yang ASP Zulkarnain tanya
tertuduh kedua berkenaan barang-barang kemas tersebut sebelum tertuduh
kedua berkata inilah barang-barang dia", TWR2 answered "Saya tidak pasti
apakah soalan ASP Zulkarnain kepada tertuduh kedua tersebut." And
finally when asked "Adakah kamu dengar apa-apa arahan daripada ASP
Zulkarnain kepada tertuduh kedua berkenaan barang kemas tersebut" TWR2
said, "Ya, ada. ASP Zulkarnain ada arahkan tertuduh kedua tunjukkan
jarinya kepada barang-barang kemas tersebut sebelum jurugambar mengambil
gambar beliau menunjukkan jarinya kepada barang-barang kemas tersebut."
[74]
There is thus a conflicting and inconclusive account of events as
regards the discovery of the black jacket and the jewellery. There is
also no conclusive account of what exactly was said by the second
appellant as regards the jacket. According to SP23, the second appellant
said "saya simpan barang dalam jacket" whereas the evidence of SP20
does not disclose any such statement being made. What SP20 said was
"Sebelum tertuduh kedua menunjukkan jacket, tertuduh kedua ada
memberitahu ASP Zulkarnain sesuatu tetapi saya telah lupa apa yang
beliau katakan...". TWR2 supports the second appellant's version that it
was SP23 who had directed the second appellant to point to the
jewellery on the bed. The true substance of the information given by the
second appellant is thus not altogether clear.
[75]
Further, SP20 said that after the information was received from the
second appellant during the interview, SP23 made a police report. This
is confirmed by SP23 where he said "... saya membuat laporan polis
berhubung dengan maklumat tersebut. Saya membuat laporan polis tersebut
di pejabat saya sendiri...". The prosecution produced the report marked
P76. There was however another report tendered by the defence, marked
D91. In D91, the rank of SP23 was stated as Ch Inspector although at the
material time he was an ASP; his name was wrongly spelt and his date of
birth was wrongly stated. P76 was the amended version of D91. The
"pembetulan" (the word used by SP23) was done by SP23 after the
discovery at the second appellant's house and the correction among
others, was to change the word "penama" in D91 to "suspek" as appeared
in P76 and to change the word "yang saya simpan" in D91 to the words
"ada saya simpan" as appeared in P76 and also to add in the word
"sesuatu" in P76 which word was not originally found in D91.
[76]
If as testified by SP20 and SP23 that the second appellant had given
the information during the interview and that after the second appellant
gave the information, SP23 did make a police report before going to the
house, it begs the question, why has SP23 got his own personal
particulars wrong in the police report and why the need for SP23 to make
corrections to the words relating to the information or statement
allegedly given by the second appellants (putting aside the question
whether the correction leaves a doubt as to the accuracy of the
statement allegedly given by the second appellant). SP23 gave an
explanation though as regards the discrepancies between D91 and P76. He
said that it was typed by SP20.
[77] Given the need to be
vigilant, the learned trial judge ought to have directed his mind and
examined whether the contradictions or inconsistencies in the evidence
of the prosecution witnesses are material; examined the credibility of
SP20, SP21 and SP75 (in respect of the first appellant) and SP20 and
SP23 (in respect of the second appellant); examined whether the
appellants had raised a doubt on the accuracy of
s. 27
statement and examined whether the discovery was made by virtue of and
exclusively as a result of the information supplied by the appellants
and not from other sources (
Francis Antonysamy v. PP [2005] 2 CLJ 481;
[2005] 3 MLJ 389). If the police have prior knowledge of the
information supplied by the accused, obviously the subsequent discovery
will be based on such prior knowledge and not based on the information
of the accused and this will render the information supplied by the
accused inadmissible as it will not be the cause of the discovery (
PP v. Kanapathy Kupusamy & Anor [2001] 1 CLJ 61; [2001] 5 MLJ 20;
Md Desa Hashim v. PP [1995] 4 CLJ 677; [1995] 3 MLJ 350).
Afortiori, as has been held by the Federal Court in
Amathevelli P Ramasamy v. PP [2009] 3 CLJ 109;
[2009] 2 AMR 281, that the actual words used in the information leading
to discovery must be stated orally. This is not the position in the
case before us.
[78] The learned trial judge however failed to undertake the above exercise. His Lordship's finding on the statements made under
s. 27 merely states:
129.
Having considered all the issues raised by the First Accused, I have no
reasons to doubt the credibility and reliability of Ch. Insp Koh Fei
Choew's evidence that the First Accused who is also a Police Officer and
the Investigation Officer himself did in fact supply the information as
aforesaid and that Ch. Insp Koh Fei Choew had no prior knowledge of the
particular place of the scene. I therefore find it difficult to
exercise my discretion to exclude them.
130. Having considered all
the issues raised by the Second Accused, I find that that the Second
Accused has succeeded in showing the shoddy and slip shod manner in the
investigation of some officers and the inconsistencies in the evidence
of the prosecution's witnesses. To my mind, while inconsistencies in the
testimony of the witnesses is expected, the fact remains that the said
"barang-barang kemas" were discovered consequence to the said
informations supplied by him. I therefore likewise refuse to exercise my
discretion to exclude them.
[79] Insofar as
the second appellant is concerned, there were in fact three statements
made ie, (i) "saya boleh tunjukkan barang kemas milik perempuan... ada
saya simpan di dalam rumah saya di Kota Damansara" (ii) "saya simpan
barang kemas di dalam jacket" and (iii) "inilah barang dia." There was
no finding by the learned trial judge as to which statement was
admitted. To recap, the first statement had been the subject of
correction by SP23; the second statement raises a doubt as to whether
such an occasion exists (in the light of the testimony of SP20 and
TRW2); and the third statement was made after the jewellery had been
discovered.
[80] We find that there is a non-direction by
the learned trial judge in failing to evaluate the evidence before
admitting the statements under
s. 27.
Possession And Control Of The Explosives
[81] The learned trial judge in his grounds of judgment states:
137.
The way the deceased came about her death is very tragic indeed. It can
be no doubt that whoever perpetrated this despicable and unthinkable
act of blasting on the deceased must have intended to completely vanish
the related evidence into the thin air. Whatever his motive was, it is a
matter of law that the 'motive' although relevant has never been the
essential to constitute murder. The question for which I am to determine
at this stage is who could have possibly connected with the death of
the deceased.
[82] It was the contention of
learned counsel for the first appellant that although motive is not
essential to be proved by the prosecution, the learned trial judge had
failed to correctly address his mind that there was no evidence to show
the first appellant had the custody and control of C4 explosives any
time prior to his arrest.
[83] We agree with learned
counsel. And although this ground was raised by the first appellant, we
think it applies to the second appellant as well. DSP MV Sri Kumar a/l
Madhavan Nair (SP16) was the pegawai latihan in UTK. He testified on the
explosives available and the procedure that need to be followed when
taking the explosives from the store. His evidence shows that bombs are
strictly controlled in the police store; that apart from 'latihan asas',
the appellants had not undergone any other training relating to
explosives and that the appellants may not have the necessary experience
and skill to handle explosives. Having made a finding on the connection
between the explosives and the death of the deceased, the learned judge
should, in our judgment address his mind and to make a further finding
to connect the explosives and the appellants. By not making sufficient
appraisal of such evidence in order to make any finding on possession by
the appellants of the explosives used in the commission of the murder,
the learned trial judge had failed to address his mind on this missing
link resulting in yet, another misdirection.
The Non-Calling Of DSP Musa
[84]
This ground raised by the second appellant finds its root in the
affidavit of the third accused. As stated earlier, the affidavit of the
third accused formed part of the evidence of the prosecution. On account
that there was no rebuttal against the evidence of the third accused,
the learned trial judge had acquitted and discharged him.
[85]
Learned counsel for the second appellant had highlighted several
discrepancies in the affidavit of the third accused when compared with
the other evidence tendered by the prosecution, in particular as regards
the averment on the timing of the request for assistance from the
police and the averment that the third accused was not able to get in
touch with DSP Musa on 17 October 2006. The argument of learned counsel
for the second appellant is that not only is DSP Musa a relevant witness
in unfolding the events but DSP Musa is the only witness who could
contradict the statements made by the third accused in his affidavit.
The prosecution's failure to produce the evidence of DSP Musa and to
produce certain messages between DSP Musa and the third accused, argued
learned counsel, amounts to a suppression of evidence resulting in an
abuse of the process of the court which ought to result in a mistrial.
[86]
The response from the learned DPP is that the prosecution has led
evidence showing the frequency of calls between DSP Musa, the first
appellant and the third accused; that the third accused sought the
assistance of DSP Musa to introduce him to someone and DSP Musa
eventually introduced the third accused to the first appellant; that
there was a meeting between the the first appellant and third accused
and that there was no cross-examination on the IO whether DSP Musa knew
of what transpired during the meeting between the first appellant and
the third accused on 18 October 2006. The prosecution's stand therefore
is that there was no need for DSP Musa to be called as a witness and
that the non-calling of DSP Musa creates no gap in the prosecution's
case. The court, contended learned DPP, should only be concerned with
whether the prosecution had proved that the appellants had committed the
murder.
[87] With respect, we are not able to agree with
the learned DPP for the following reasons. The third accused was tried
jointly with the appellants where at the outset it was the prosecution's
case that the third accused had conspired with the appellants to murder
the deceased. It is incumbent upon the prosecution to adduce all
available relevant evidence against the third accused. The affidavit
which has been taken by the learned trial judge to be part of the
prosecution's evidence contains prejudicial matters against the
appellants and it tends to suggest the guilt of the appellants. In fact,
since the third accused was acquitted and discharged with no appeal
lodged by the prosecution, it appears that whatever that the appellants
did in committing the crime was entirely on their own accord.
[88]
However, it must not be overlooked that this ugly and horrendous
episode started with the request by the third accused to DSP Musa before
the appellants came into the picture. The evidence established that the
appellants' task was to patrol the vicinity of the third accused's
house and that the presence of the appellants at the third accused's
house on the night of 19 October 2006 was upon the request for such
assistance from the third accused to the first appellant.
[89]
The learned trial judge is bound to view the whole of the evidence
objectively and from all angles in finding whether the evidence or the
facts point to the irresistible inference and conclusion that both the
appellants committed this crime or whether there are some other
reasonably possible explanation of those facts (see
Gooi Loo Seng v. PP [1993] 3 CLJ 1;
[1993] 2 MLJ 137). Now that the task of patrolling the house had ended
with murder, we agree with learned counsel for the second appellant that
only DSP Musa can confirm the scope of the request made by the third
accused to him. DSP Musa is therefore an important witness to unfold the
event, to offer explanation of the facts and to close the gap in the
narrative of the prosecution's case. It is our judgment that from the
facts of this case, namely the role of DSP Musa in bringing the two
appellants into the picture of the entire episode, his evidence is
essential to unfold the narrative upon which the prosecution's case is
based on (see
Seneviratne v. R [1936] 3 All ER 36 and
Teoh Hoe Chye v. PP & Another Case [1987] 1 CLJ 471; [1987] CLJ (Rep) 386;
[1987] 1 MLJ 220). The failure of the prosecution to call or offer for
cross-examination DSP Musa, in the circumstances of the evidence as a
whole, would have triggered the adverse inference under
s. 114(g) of the Evidence Act 1950, against the prosecution.
The Pair Of Slippers
[90]
A pair of slippers with traces of blood stains on it (exh. P153C) was
recovered on 9 November 2006 by Sup Soo Me Tong (SP42) from the second
appellant's car. Upon mtDNA analysis by the chemist Mr Primulpathi
(SP39), the said traces of blood stain were confirmed as one from the
same maternal lineage as that of the deceased.
[91] The learned trial judge made the following finding on the slippers:
136.
I agree with the submission of the learned DPP that the traces of blood
stain found the slippers from inside the Second Accused's car could not
possibly be planted there for its recovery was on the 9.11.2006 whereas
the remains of the deceased was found on the 6.11.2006 without any
traces of fresh or dried blood and that the blood specimen of the
deceased's father, Shaaribuu Setev (SP2) was taken only on the
10.11.2006. With respect, I also see the logic in the learned DPP's
remark that the police could have easily put the soil taken from the
scene on the said Suzuki CAC 1883 had they really wanted to frame the
Second Accused.
[92] In essence, the argument
advanced by learned counsel for the second appellant was that the
identity of the user of the slippers at the material time the blood
stain came to be on the slippers is a matter gravely in doubt.
[93]
We agree with learned counsel for the second appellant. Apart from the
fact that a pair of slippers smudged with blood stains (which was not
conclusive to be that of the deceased but of someone sharing the same
maternal lineage with the deceased), the prosecution led no evidence to
establish anything else about the slippers. No DNA specimen was taken
from the slippers to ascertain the identity of the user at the time the
blood stain came to be on the slippers or that the slippers matches the
size of the second appellant. We find no evidence to show any nexus
between the slippers and the second appellant.
[94] The
second appellant, in his statement said that he had left his car at
Bukit Aman on 31 October 2006 before he left for Pakistan for his escort
duty; that the car key was kept in a tray at his office; that he had
asked Sarjan Rosli (SP24) to start the car once in awhile; that he had
nicely arranged his belongings in the boot of the car which includes a
size 8 pair of slippers.
[95] According to SP24, he did not
see the slippers, exh. P153C in the second appellant's car when he
warmed up the engine twice. He was certain about it. But more important
is the following evidence of SP24:
Pada 3hb saya tidak
ingat bulan berapa, saya serahkan kunci kereta Tertuduh Kedua ini
kepada DSP Mohd Khairi bin Khairuddin. DSP Mohd Khairi serahkan semula
kunci kereta Tertuduh Kedua ini kepada saya pada 6hb bulan yang sama.
Saya serahkan anak kunci Tertuduh Kedua kepada DSP Khairi kerana beliau
memintanya. Saya tak tahu sebabnya. Selepas beliau serahkan kuncinya,
saya letak semula anak kunci kereta Tertuduh Kedua tersebut ke dalam
tray yang sama. DSP Khairi berpesan jika I.O iaitu ASP Tonny datang
meminta kunci yang sama pada malam nanti supaya menyerahkan kunci yang
sama pada I.O.
[96] DSP Mohd Khairi was not
called to testify. Hence there was no evidence as to what happened to
the said car whilst it was in DSP Mohd Khairi's custody. The learned DPP
submitted that what matters is that the slippers with the blood stain
were found in the car. Of course it matters that the slippers were found
in the second appellant's car but it matters too that the prosecution
should exclude any possibility of the car being tampered with. It
matters that the prosecution must close the gap especially when the
slippers were recovered after the key to the second appellant's car was
taken by DSP Mohd Khairi and it matters when learned DPP conceded that
the mtDNA analysis on the blood on the slippers is not conclusive as it
is only based on maternal lineage. The fact that DSP Mohd Khairi was
offered to the defence does not excuse the prosecution (see
Abdullah Zawawi Yusoff v. PP [1993] 4 CLJ 1;
[1993] 3 MLJ 1). The learned judge failed to consider all the above
which failure had resulted in an injustice to the second appellant.
The Spent Cartridge
[97]
The other evidence found by the learned trial judge to be incriminating
of the second appellant was the spent cartridge (exh. P185B) recovered
from inside the second appellant's car (on the floor between the driver
seat and the door) on 9 November 2006. The chemist, Shaari Desa (SP40)
examined the cartridge found by SP42 and upon conducting a ballistic
test on the cartridge, concluded that the spent cartridge had been
discharged from a firearm type HK-MP55D (exh. 263A).
[98]
The prosecution led evidence through WPC Fatimah bt Abdul Wahab (SP15)
of Armoury of UTK Bukit Aman that the said firearm was issued to the
second appellant on 4 October 2006 and was returned on 30 October 2006.
She testified that all bullets supplied to the second appellant had been
returned by the second appellant to her.
[99] In the light
of the evidence of SP15 that the second appellant took and delivered
the exact number of bullets with none missing and in view of the fact
that:
(i) the car at the material time was in the custody of DSP Mohd Khairi;
(ii) DSP Mohd Khairi had asked SP24 to hand over the keys to the IO; and
(iii)
DSP Mohd Khairi was the Senior Officer, Logistics and Armoury Bukit
Aman in charge of the bullets and firearms, learned counsel for the
second appellant submitted that there is grave suspicion that DSP Khairi
may have had something to do with the appearance of the spent
cartridge.
[100] We find merits in the
submission of learned counsel. PW42, the forensic investigator who went
to inspect the car on 9 November 2006 upon the request by the IO on the
night of 8 November 2006 agreed with learned counsel's proposition that
"Adalah munasabah oleh itu bahawa sebelum kamu periksa kereta tersebut,
beberapa orang telah masuk dan keluar dalam kereta tersebut dan kamu
tidak tahu sama ada barang-barang yang dijumpai di dalam keadaan
asal...". As with the slippers, we find that there is a gap in the
prosecution's case insofar as the cartridge is concerned which the
learned trial judge failed to direct his mind to.
[101] The
other evidence adduced by the prosecution to link the first appellant
to the murder is the recovery of the notes (exh. P80A) from inside the
bag of the first appellant. The notes bear the name of the third
accused's father, the house address, the telephone number, room number
of Hotel Malaya and the name "Aminah". As regards the second appellant, a
smart tag device and the T&G card showing the movement of the
second appellant's car on 19 October 2006 and 20 October 2006
entering/exiting through Kota Damansara/Jalan Duta was adduced. The
prosecution also adduced the evidence of forensic video analysis
photograph obtained from CCTV at Plaza Tol Kota Damansara to show the
passing of the second appellant's car through the Plaza Tol Kota
Damansara on 19 October 2006 at 7:14:40am; 8:48:55pm; 10:03:53pm and
11:55:36pm.
[102] It is our judgment that the handwritten
notes of the third accused found in the first appellant's bag has no
bearing to connect the first appellant to the crime. The notes merely
confirmed that he had met the third accused where according to the
affidavit of the third accused, for purposes of asking the first
appellant to patrol the vicinity of his house, he had given the first
appellant "maklumat mengenai alamat rumah saya, nama bapa saya, nama si
mati, "Hotel Malaya" di mana si mati tinggal (mengikut maklumat yang
diberi PB kepada saya)."
[103] The prosecution had
suggested that the presence of the appellants at Hotel Malaya on 18
October 2006 was evidence of the appellants' intention to commit the
crime. However, an inference favourable to the appellants may also be
drawn ie, that their presence was merely to confirm that the deceased
was indeed staying at the hotel as per the information given by the
private investigator to the third accused and by the third accused to
the first appellant. As such, the presence of the appellants at Hotel
Malaya does not establish a complete chain of evidence against the
appellants to bring home their guilt. The fact that the appellants were
last seen with the deceased shows opportunity for the commission of
crime but there is a huge gap between opportunity and commission. The
smart tag device and the CCTV showing the movement of the second
appellant's car entering and exiting the Plaza Tol cannot cogently
establish the second appellant's connection to the crime in light of the
fact that the second appellant lives at Kota Damansara.
[104]
The onus on the prosecution where the evidence is of a circumstantial
nature is indeed a very heavy one. The circumstances must be fully and
cogently established, the chain of evidence must be complete, the
evidence must point irresistibly to the conclusion of the guilt of the
accused and there must not be any gaps in the prosecution's case. If
there are gaps in it, then it is not sufficient. Unless the court is
satisfied that the facts proved are consistent with the guilt of the
accused and the accused alone and every possible explanation other than
the guilt of the accused has been excluded, the accused cannot be
convicted based solely on circumstantial evidence (see
Magendran Mohan v. PP [2011] 1 CLJ 805).
[105] There is one other aspect of this appeal. The charge against the appellants was under
s. 302 read together with
s. 34 of the Penal Code
ie, that pursuant to the common intention of both of them, they had
committed the murder of Altantuya. Common intention within the meaning
of
s. 34
implies a prearranged plan and to convict the accused of an offence by
invoking the section it should be proved that the criminal act was done
in concert pursuant to the prearranged plan. As has been often observed
it is difficult if not impossible to procure direct evidence to prove
the intention of an individual; in most cases it has to be inferred from
his act or conduct or other relevant circumstances of the case (see
Mahbub Shah v. Emperor AIR [1945] PC 118;
PP v. Mohd Farid Mohd Sukis & Anor [2002] 8 CLJ 814; [2002] 3 MLJ 401).
[106]
Except for the words "individually and jointly" mentioned by the
learned trial judge in para. 154 of the grounds of judgment, nowhere
else did the learned trial judge address the acts or conduct of the
appellants or the circumstances that give rise to or prove the
prearranged plan to bring about the murder of the deceased. In the
grounds of judgment, the learned trial judge made no finding on whether
the prosecution has established that there was any prearranged plan by
the appellants to commit murder and that murder was committed pursuant
to that plan. In our judgment, the absence of such finding by the
learned trial judge on the ingredient of common intention amounted to a
misdirection by way of non-direction (
Mahbub Shah,
supra ). In fact, there was no evaluation of the evidence on the ingredient of common intention based on the principles as stated in
Lee Kwai Heong & Anor v. PP [2006] 1 CLJ 1043.
[107] Learned DPP who conceded that there are various non-directions by the learned trial judge invited us to invoke the proviso to
s. 60(1) of the Courts of Judicature Act 1964 which reads:
Provided
that the Court of Appeal may, notwithstanding that it is of opinion
that the point raised in the appeal might be decided in the favour of
the appellant, dismiss the appeal if it considers that no substantial
miscarriage of justice has occurred.
[108] It has been set out in
Tunde Apatira & Ors v. PP [2001] 1 CLJ 381
that as a general rule, the court will, in the normal course of events,
quash a conviction where there has been a misdirection. Exceptionally, a
conviction will be upheld despite misdirection where the court is
satisfied that a reasonable tribunal would have convicted the accused on
the available evidence on a proper direction.
[109]
Looking at the whole evidence and circumstances of this case, we are of
the view that this is not a fit and proper case for us to invoke the
proviso. The circumstances relied upon by the prosecution had not been
fully and cogently established and the chain of evidence is not
complete. We cannot say if a reasonable tribunal properly directed would
have convicted the appellants on available evidence. The court below
had ignored and overlooked salient facts and evidence favourable to the
appellants which resulted in serious and substantial miscarriage of
justice to the appellants. In our judgment, the cumulative effect of
these non-directions rendered the convictions of the appellants unsafe.
Furthermore since the prosecution's case relied on circumstantial
evidence, we have to adequately caution ourselves, in line with what has
been said to be "the combined strength of strands to make a rope strong
enough to hang" in
Chan Chwen Kong v. PP [1962] 1 LNS 22;
[1962] MLJ 307. It is our judgment that the circumstantial evidence are
insufficient and not strong enough to sustain the finding of guilt of
the appellants. We are conscious that a heinous crime has been committed
but where the guilt of the appellants had not been satisfactorily
proved, we are constrained to give the benefit of doubt to the
appellants. We, unanimously, allow both appeals. Conviction and sentence
by the High Court is set aside. The appellants are accordingly
acquitted and discharged.