CRIMINAL LAW: Penal Code - Section 302 - Murder - Deceased killed due to blast related injuries - Police officers charged with murder - Whether purported confession by accused admissible - Whether information given by accused leading to crime spot admissible - Whether information given by accused leading to recovery of deceased jewellery admissible - Whether prima facie case made out against accused - Defence irreconcilable and ambivalent - Prosecution's case proven beyond reasonable doubt

CRIMINAL LAW: Abetment - Abetting another to commit murder - Abettor asking police officers for protection against blackmail, harassment and threats by deceased - Deceased murdered by police officers - No direct or circumstantial evidence of abettor's participation in offence - No prima facie case against abettor - Abettor acquitted and discharged - Penal Code, ss. 109 & 302

CRIMINAL PROCEDURE: Trial - Confession - Admissibility - Confession made to person in authority - Confession by accused to police officer - Onus on prosecution to prove voluntariness of confession - Confession made as a result of inducement and threat - Confession involuntarily made and inadmissible - Evidence Act 1950, s. 24

EVIDENCE: Confession - Admissibility of confession - Confession made to person in authority - Confession by accused to police officer - Onus on prosecution to prove voluntariness of confession - Confession made as a result of inducement and threat - Confession involuntarily made and inadmissible - Evidence Act 1950, s. 24

EVIDENCE: Information leading to fact discovered - Evidence Act 1950, s. 27 - Admissibility and proof - Statement made by accused to police - Statements leading police to place where murder was committed and recovery of jewellery belonging to deceased - Whether statements admissible - Whether statements voluntarily given - Whether police had prior knowledge of place where murder was committed - Whether jewellery discovered as a consequence of information supplied

PP v. AZILAH HADRI & ORS
HIGH COURT MALAYA, SHAH ALAM
MOHD ZAKI YASIN J
[CRIMINAL TRIALS NOS: 46-3-2006 & 45-120-2006]
9 APRIL 2009

HEADNOTES

The first accused (Azilah bin Hadri, a police inspector) and the second accused (Sirul Azhar bin Hj Umar, a police corporal) were charged for the offence of murder of one Altantuya Shaariibuu, an offence punishable under s. 302 of the Penal Code read together with s. 34 of the same Code. The third accused (Abdul Razak bin Abdullah) was charged for an offence of abetting the two accused persons in the commission of the said murder, an offence punishable under s. 109 of the Penal Code read together with s. 302 of the same Code. The deceased's bone and tissue fragments had been recovered in the forest area in Puncak Alam. The cause of death was said to be "probable blast related injuries". According to the prosecution, the third accused had had an affair with the deceased which ended in August 2005. Thereafter, the deceased came to Kuala Lumpur on 8 October 2006 with a cousin (SP3) and a friend (SP4) and had threatened the life of the third accused's daughter for money. According to the prosecution, the third accused then conspired with the first and second accused to murder the deceased. Balasubramaniam (SP1), a private investigator hired by the third accused, testified that on 19 October 2006 at about 7.20pm, the deceased came to the third accused's house. At that time, the first and second accused arrived in a Proton Wira car together with Lans Corporal Rohaniza bt Roslan (SP7) and detained the deceased. They then took the deceased away. SP7 testified that on that night they took the deceased to Bukit Aman. From there, the first accused claimed that he was going to take the deceased back to her hotel and SP7 did not follow them. The first accused and the deceased then left in a Suzuki Vitara car driven by a man in a green cap. However, in her cross examination, SP7 said that she was confused as there were many statements recorded from her by different recording officers. She further said that while on remand, she was abused and promised to be released if she agreed to say that the first accused did get into the car. The prosecution sought to introduce the "confession" of the second accused on his involvements in the crime purportedly made voluntarily to ACP Mastor bin Mohd. The first accused was said to have told the police about the location where the murder was committed and was said to have then led the police to the said location. According to Chief Inspector Koh Fei Cheow (SP20), the first accused told him "Inilah tempatnya perempuan Mongolia diletupkan" and "Inilah tempat perempuan Mongolia ditembak". These informations according to SP20 were recorded in his Investigation Diary. The prosecution sought to admit these informations under s. 27 of the Evidence Act 1950 ("EA50") Further, according to SP20, the second accused had given him information regarding the whereabouts of the deceased's jewellery and had later led SP20 to his house where the jewellery was recovered. The prosecution sought to admit these informations too under s. 27 of EA50.

Held (convicting the first & second accused for murder; acquitting and discharging the third accused):

(1) The law with regard to confession to a person in authority is governed by s. 24 of EA50. The onus is for the prosecution to prove that the alleged confession was made voluntarily without any threat, promise, inducement and oppression. There was obvious inducement and threat inflicted by ACP Mastor in procuring the confession from the second accused. The confession was actuated by fear in the mind of the second accused exacted by ACP Mastor. Hence, the alleged confession was involuntarily made and inadmissible as evidence. (paras 72, 74 & 85)

(2) While the explanation advanced by SP7 was not absolutely satisfactory but considering her evidence as a whole and the evidence of the rest of the prosecution's witnesses, the court accepted all her explanations. (para 127)

(3) The court had no reasons to doubt the credibility and reliability of SP20's evidence that the first accused who was also a Police Inspector and the investigation officer himself did in fact supply the said information and that SP20 had no prior knowledge of the particular place of the scene. The court thus could not exercise its discretion to exclude them. (para 129)

(4) The said "barang-barang kemas" were discovered in consequence to the said information supplied by the second accused. The court therefore likewise refused to exercise its discretion to exclude them. (para 130)

(5) Having considered the evidence adduced by the prosecution in its totality, the court was satisfied that: (i) the fragment of bones collected at the scene were that of the deceased; (ii) the cause of death of the deceased was probable blast-related injuries; (iii) all the reference of "perempuan Cina" by SP7 was actually the deceased; (iv) all the reference of "Vitara" by SP7 was actually "Suzuki 4WD", ie, the second accused's car and (v) all the reference of "a man in green cap" was actually the second accused. (paras 135 & 136)

(6) The notes written by the third accused that was found from the first accused's bag with the full address of his house in the name of his father Dato' Abdullah Malim Baginda, was wholly consistent with that of an innocent man asking the first accused in a bona fide manner for assistance, ie, for the police to patrol the vicinity of the third accused's house against the deceased's harassment and threats. (para 143)

(7) Even if the third accused can be inferred as having had any "motive" in the light of all the blackmailing letters of the deceased, it cannot be made a basis for his conviction without any direct or circumstantial evidence of his participation in any manner in the commission of the offence. (para 145)

(8) Consequently, there was prima facie case for the first and second accused to answer as charged. In the case of the third accused, there was no prima facie case for him to answer his charge. The third accused was not guilty and was acquitted and discharged. (para 146)

(9) The defence of each of the accused were essentially one of denial, of blaming one another, irreconcilable and ambivalent. They failed to raise any reasonable doubt on the prosecution's case. The prosecution had proved the case against both the first and the second accused beyond reasonable doubt. Accordingly, both of them were found guilty and convicted as charged and sentenced to death. (paras 154 & 155)

Case(s) referred to:
Balachandran v. PP [2005] 1 CLJ 85 FC (refd)
Bala Matik v. PP [2006] 2 CLJ 229 CA (refd)
Chan Chwen Kong v. PP [1962] 1 LNS 22 HC (refd)
Chan Kin Choi v. PP [1991] 1 LNS 80 CA (refd)
Chan Ming Cheng v. PP [2002] 4 CLJ 77 CA (refd)
Director of PP v. Ping Lin [1975] 3 All ER 175 (refd)
Dato' Seri Anwar Ibrahim v. PP & Another Appeal [2004] 3 CLJ 737 FC (refd)
Francis Antonysamy v. PP [2005] 2 CLJ 481 FC (refd)
Goi Ching Ang v. PP [1999] 1 CLJ 829 FC (refd)
Hasibullah Mohd Ghazali v. PP [1993] 4 CLJ 535 SC (refd)
Lim Yow Choon v. PP [1971] 1 LNS 65 FC (refd)
PP v. Adetunji Adeleye Sule [1993] 3 CLJ 113 SC (refd)
PP v. Hashim Hanafi [2003] 8 CLJ 555 HC (refd)
PP v. Law Say Seck & Ors [1970] 1 LNS 114 HC (refd)
PP v. Lin Lian Chen [1992] 4 CLJ 2086; [1992] 1 CLJ (Rep) 285 SC (refd)
PP v. Mohd Farid Mohd Sukis & Anor [2002] 8 CLJ 814 HC (refd)
PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457 FC (refd)
PP v. Naikan [1960] 1 LNS 87 HC (refd)
Prakash Chand v. State (Delhi Admn) [1979] AIR SC 400 (refd)
R v. Bradshaw [1978] 18 SASR 83 (refd)
R v. Dugan [1984] 2 NSWLR 554 (refd)
R v. Richards [1967] 1 All ER 829 (refd)
Sambu v. Rex [1946] 1 LNS 30 HC (refd)
Shaaban & Ors v. Chong Fook Kam & Anor [1969] 1 LNS 170 PC (refd)
Smith v. R [1957] 97 CLR 100 (refd)
Syamo Maha Patro & Anor v. Emperor [1932] AIR Madras 391 (refd)
Varatharajalu v. PP [1960] 1 LNS 159 HC (refd)
Yogi Choudhary v. State of Bihar [2005] Cri LJ 2285 (refd)

Legislation referred to:
Criminal Procedure Code, ss. 26, 112, 113, 117, 162
Dangerous Drugs Act 1952, ss. 37(d), 37(da)
Evidence Act 1950, ss. 8, 24, 26, 27, 114(g)
Penal Code, ss. 34, 109, 302
Oaths and Affirmations Act 1949, s. 13

Other source(s) referred to:
Kerry Stephens, Voir Dire, p. 58

For the prosecution - Tun Abd Majid Tun Hamzah (Manoj Kurup, Noorin Badaruddin & Hanim Rashid with him); DPP
For the 1st accused - Dato' Hazman Ahmad (J Kuldeep Kumar with him); M/s J Kuldeep Kumar & Co
For the 2nd accused - Kamarul Hisham Kamaruddin (Hasnal Rezua Merican & Ahmad Zaidi Zainal with him); The Chambers of Kamarul Hisham & Hasnal Rezua
For the 3rd accused - Wong Kian Kheong (Karen Lee Foong Voon & Alex Tan Chie Sian with him); M/s Wong Kian Kheong

Reported by Amutha Suppayah