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

CRIMINAL LAW: Penal Code - Section 302 - Murder - Common intention - Circumstantial evidence - Appellants alleged to have shot deceased and blown her to pieces by using explosives - Whether evidence did not conclusively and irresistibly point to appellants' guilt - Whether prearranged plan not proved or addressed by trial judge - Whether conviction unsafe - Penal Code, ss. 34 & 302

EVIDENCE: Adverse inference - Murder - Failure to call material police witnesses to testify - Whether a withholding of evidence - Whether presumption arose against prosecution - Evidence Act 1950, s. 114(g)

EVIDENCE: Documentary evidence - Computer printout - Admissibility - Failure by trial judge to determine person responsible for management and operation of computer from which exhibits were printed - Evidentiary requirement - Whether fulfilled - Whether exhibit wrongly admitted - Whether a misdirection - Evidence Act 1950, ss. 83 & 90A(2)

EVIDENCE: Information leading to fact discovered - Admissibility of statement - Murder - Information leading to discovery of crime scene and jewellery belonging to deceased - Whether police had prior knowledge of information - Contradictions in statement - Contradictions not addressed by trial judge - Whether a misdirection by way of non-direction - Evidence Act 1950, s. 27

The 1st and 2nd appellants, together with one Abdul Razak Abdullah ('third accused'), were charged with murder under s. 302 read with s. 34 of the Penal Code, and with abetment to commit murder under s. 109 read with s. 302 of the Penal Code, respectively. The facts as adduced before the High Court showed that the remains of one Altantuya Shaaribuu ('the deceased'), a Mongolian national, was found at a place called Puncak Alam, Selangor after she had been allegedly shot with a firearm and blown to pieces with explosives. This factum aside, the prosecution, in seeking to prove the guilt and culpability of the appellants and the third accused, adduced and relied on the following circumstantial evidence, namely: (i) that the third accused had an affair with the deceased; (ii) that the deceased had come to Malaysia to meet the third accused and stayed at a hotel called Hotel Malaya; (iii) that in his quest to prevent the deceased from harassing him and his family, the third accused sought the assistance of one DSP Musa Safri ('DSP Musa') to arrange for the police to patrol the vicinity of his house at Bukit Damansara; (iv) that DSP Musa had instructed his subordinate, the 1st appellant, to undertake the task, to which the 1st appellant agreed; (v) that the 1st appellant then met the third accused in the latter's office, and telephone conversations and SMSes were thereafter exchanged between the 1st appellant and the third accused; (vi) that the 1st appellant then roped in the 2nd appellant for the patrolling task; (vii) that on 18 October 2006, a day before the alleged murder, both appellants had gone to and were seen at Hotel Malaya; (viii) that 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 1st appellant; (ix) that the 2nd appellant and SP7 were also inside the said car at the material time; (x) that soon thereafter, at the Police Headquarters at Bukit Aman, the deceased was last seen in the 2nd appellant's car; (xi) that a police report was lodged on the next day, 20 October 2006, on the disappearance of the deceased; (xii) that about two weeks later, on 6 November 2006, fragments of the deceased's bone and tissue were discovered in the forest area at Puncak Alam; (xiii) that the call logs or call details record from the 1st appellant's telephone (prepared by SP61, SP62 and SP63 and tendered in computer printout form as exhs. P27, P370 and P372B) showed that the 1st appellant had been or could have been at the scene of the crime at the material time, and not at Bukit Aman and Wangsa Maju as stated in his notice of alibi; (xiv) that both the 1st and 2nd appellants had given a statement under s. 27 of the Evidence Act 1950 leading to the discovery of the crime scene and to the deceased's jewellery, respectively; and (xv) that a pair of slippers smudged with blood stains of someone sharing the same maternal lineage with the deceased, and a spent cartridge discharged from a firearm issued to the 2nd appellant, were found in the 2nd appellant's car.

Upon the evidence thus adduced, the High Court judge acquitted and discharged the third accused on the conspiracy charge. The learned judge however found sufficient evidence to call for the appellants' defence and, having heard the same, ruled their evidence as mere denials and convicted and sentenced them to death. The appellants appealed and the primary issues that arose were: (i) whether the learned judge in coming to the decision he did had failed to properly evaluate the evidence before him and had committed serious misdirections as to vitiate the convictions; (ii) whether the circumstantial evidence as adduced by the prosecution had conclusively and irresistibly pointed to the appellants' guilt; (iii) whether the failure to call DSP Musa as a witness, or to offer him for cross-examination in the trial below had attracted the adverse inference in s. 114(g) of the Evidence Act 1950; and (iv) whether, notwithstanding the misdirections, if any, this was an appropriate case for the Court of Appeal to invoke the proviso to s. 60(1) of the Courts of Judicature Act 1964 ('CJA') and affirm the appellants' convictions.

Held (allowing appeals; acquitting and discharging both appellants)

Per Tengku Maimun JCA delivering the judgment of the court:

(1) 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. (para 104)

(2) The learned judge had failed to consider the defence of alibi of the 1st appellant sufficiently and independently of the 2nd appellant before coming to the conclusion that their defence essentially has been one of denial. There was nothing in the judgment of the learned judge that showed that the learned judge had considered whether the station diary D428 and the evidence that the 1st 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 1st appellant thereat, he cannot be or is unlikely to be at Puncak Alam. The learned judge had thus misdirected himself by way of nondirection in failing to consider the evidence. Further, bearing in mind that the 1st appellant has no legal burden to prove his alibi, the learned judge had also 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 1st appellant was at the scene of the crime. (paras 22 & 23)

(3) The prosecution must not only prove the admissibility of exh. P370 but must ensure that all other established legal and procedural requirements are stringently adhered to. In this case, despite the challenge to the admissibility of exh. P370, the learned judge did not, in satisfaction of the requirement of s. 90A(2) of the Evidence Act 1950, make a finding that SP61 was the person responsible for the management and operation of the relevant computer from which exh. P370 was printed out. It was also clear that in preparing exh. P27, SP61 had omitted some of the data found in P370 including those that relate to information on particular time and date. Any mistake or uncertainty which concerns the date 19 October 2006 and the time 10pm is crucial given that it forms the particulars of the alleged offence. Consequently, it is crucial for the learned 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. (paras 25, 29, 30 & 35)

(4) Notwithstanding the absence of rebuttal evidence, the testimonies of SP61, 62 and 63 had put into issue the reliability and accuracy of the call logs and the coverage prediction. These call logs and coverage prediction are important pieces of evidence to establish the presence of the 1st appellant at the scene of the crime. Consequently, it is essential for the learned judge to address his mind to the challenge raised by the defence on the exhibits and to make a finding whether there was in fact any alteration or tampering of the data and whether the authenticity of the data was questionable or otherwise. Regrettably, the learned judge failed to do so. This was a serious misdirection which rendered the exhibits unsafe to rely upon. (paras 45 & 46)

(5) There was misdirection by the learned judge in failing to evaluate the evidence before admitting the s. 27 statements. There was no evidence from either SP20 or SP21 as to the (actual) words uttered by the 1st appellant at the crime scene. Their account of what was said, apart from being contradictory, also showed that the 1st appellant never mentioned the word “Puncak Alam” and “tidak tahu nama kawasan”. Likewise, there was no conclusive account of what exactly was said by the 2nd appellant as regards the black jacket and jewellery. According to SP23, the 2nd appellant said “saya simpan barang dalam jaket” but SP20's evidence did not disclose any such statement being made. The evidence also showed that three different statements were made by the 2nd appellant in this regard, but that no finding was made by the learned judge as to which of the statements had been admitted into evidence. Further, TWR2, to whom the 2nd appellant was handcuffed throughout the process of discovery, supports the 2nd appellant's version that it was SP23 who had directed him to point to the jewellery on the bed. The true substance of the information given by the 2nd appellant was thus not altogether clear. (paras 54, 62, 63, 73, 74, 79 & 80)

(5a) Given the need to be vigilant, the learned 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 1st appellant) and SP20 and SP23 (in respect of the 2nd appellant); examined whether the appellants had raised a doubt on the accuracy of the 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. If the police had prior knowledge of the information supplied by the accused, obviously the subsequent discovery will be based on such prior knowledge and not on information supplied by the accused and this will render the information supplied inadmissible. The learned judge failed to take this exercise. (paras 77 & 78)

(6) The learned judge had failed to address his mind that there was no evidence that the 1st appellant had custody and control of the C4 explosives any time prior to his arrest. The evidence of SP16 showed that bombs are strictly controlled in the police store, and that the appellants may not have the necessary experience and skill to handle explosives. Further, having made a finding on the connection between the explosives and the death of the deceased, the learned judge should 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 judge had failed to address his mind on this missing link resulting in yet another misdirection. (paras 82 & 83)

(7) DSP Musa is the only witness that can confirm the scope of the request made by the 3rd 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. Considering the role of DSP Musa in bringing the two appellants into the picture of the entire episode, his evidence is thus essential to unfold the narrative upon which the prosecution's case is based. The failure of the prosecution to call or offer for crossexamination DSP Musa, in the circumstances of the evidence as a whole, had triggered the adverse inference under s. 114(g) of the Evidence Act 1950 against the prosecution. (para 89)

(8) 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. Apart from the fact that a pair of slippers smudged with blood stains, which was not conclusive to be that of the deceased, the prosecution led no evidence to establish anything else about the slippers. There is no evidence to show any nexus between the slippers and the 2nd appellant. Also, since DSP Mohd Khairi had taken the key of the 2nd appellant's car from SP24 when the 2nd appellant was away in Pakistan on escort duty, and since the slippers were recovered after the said key was taken by DSP Mohd Khairi, DSP Mohd Khairi therefore ought to be called to testify. The fact that DSP Mohd Khairi was offered to the defence did not excuse the prosecution. The evidence also showed that the 2nd appellant had returned the exact number of bullets with none missing to the armourer. That being so, and since the car at the material time was in the custody of DSP Mohd Khairi, a grave suspicion arose that DSP Mohd Khairi might have something to do with the appearance of the spent cartridge. (paras 92, 93, 96 & 99)

(9) The presence of the appellants at Hotel Malaya did 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 showed opportunity for the commission of crime, but there is a huge gap between opportunity and commission. In the same vein, the smart tag device and the CCTV showing the movement of the 2nd appellant's car entering and exiting the Kota Damansara Plaza Tol cannot cogently establish the 2nd appellant's connection to the crime, since the 2nd appellant lived in Kota Damansara. (para 103)

(10) The learned judge had not addressed the acts or conduct of the appellants or the circumstances that proved a prearranged plan to bring about the murder of the deceased. In the grounds of judgment, no finding was made by the learned judge whether the prosecution had established that there was any prearranged plan by the appellants to commit murder and that murder was committed pursuant to that plan. The absence of such finding on the ingredient of common intention amounted to a misdirection by way of non-direction. (para 106)

(11) This is not a fit and proper case for this court to invoke the proviso to s. 60(1) of the CJA. The circumstances relied upon by the prosecution had not been fully and cogently established and the chain of evidence is not complete. It cannot be said that 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, the cumulative effect of which rendered their convictions unsafe. (para 109)

Case(s) referred to:

Abdullah Zawawi Yusoff v. PP [1993] 4 CLJ 1 SC (refd)
Amathevelli P Ramasamy v. PP [2009] 3 CLJ 109 (refd)
Chan Chwen Kong v. PP [1962] 1 LNS 22 CA (refd)
Francis Antonysamy v. PP [2005] 2 CLJ 481 FC (refd)
Gooi Loo Seng v. PP [1993] 3 CLJ 1 SC (refd)
Illian & Anor v. PP [1988] 1 LNS 139 SC (refd)
Lee Kwai Heong & Anor v. PP [2006] 1 CLJ 1043 CA (refd)
Magendran Mohan v. PP [2011] 1 CLJ 805 FC (refd)
Mahbub Shah v. Emperor AIR [1945] PC 118 (refd)
Md Desa Hashim v. PP [1995] 4 CLJ 677 FC (refd)
Pang Chee Meng v. PP [1992] 1 CLJ 39; [1992] 1 CLJ (Rep) 265 SC (refd)
PP v. Datuk Hj Sahar Arpan [1999] 3 CLJ 427 HC (refd)
PP v. Kanapathy Kupusamy & Anor [2001] 1 CLJ 61 HC (refd)
PP v. Mohd Farid Mohd Sukis & Anor [2002] 8 CLJ 814 HC (refd)
Seneviratne v. R [1936] 3 All ER 36 (refd)
Teoh Hoe Chye v. PP & Another Case [1987] 1 CLJ 471; [1987] CLJ (Rep) 386 SC (refd)
Tunde Apatira & Ors v. PP [2001] 1 CLJ 381 FC (refd)
Yau Heng Fang v. PP [1985] 2 CLJ 22; [1985] CLJ (Rep) 350 SC (refd)

Legislation referred to:

Courts of Judicature Act 1964, s. 60(1)
Evidence Act 1950, ss. 27, 83, 90A(2), 114(g)
Penal Code, ss. 34, 302
Police Act 1967, s. 97

For the 1st appellant - Hazman Ahmad (J Kuldeep Kumar with him); M/s J Kuldeep Kumar & Co

For the 2nd appellant - Kamarul Hisham Kamaruddin (Hasnal Rezua Merican, Ahmad Zaidi Zainal, Lim Kon Keen & Mohd Ruzaini Zulkifli with him); M/s The Chambers of Kamarul Hisham & Hasnal Rezua

For the respondent - Tun Abd Majid Tun Hamzah (Manoj Kurup, Noorin Badaruddin, Tengku Intan Suraya & Chan Lee Lee with him); DPPs

[Editor's note: For the High Court judgment, please see PP v. Azilah Hadri & Ors [2012] 1 CLJ 358]

Reported by Wan Sharif Ahmad


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