THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 48 ENGLISH

Gobinathan A/L Valaylam v Pendakwa Raya and Another Appeal
Suit Number: Criminal Appeal Nos. K-05(M)-338-12/2015 & K-05(M)-340-12/2015 

Criminal law – Murder with Common Intention – Conviction – Death sentence – Appeal

Criminal law – Issue of common intention – Proof of common intention – Whether there was common intention

Criminal law – Whether the trial court erred when it found accused’s actions within the scope of paragraph 300(c) of the Penal Code – Elements involved in 300(c)

Criminal law – Whether the prosecution proved a prima facie case – Whether the accused failed to raise any reasonable doubt against the prosecution’s case

JUDGMENT

A. INTRODUCTION:

[1] The Appellants were charged with the offence of murder under section 302 read together with section 34 of the Penal Code (PC). The charge reads as follows:

“Bahawa kamu bersama-sama pada 1.11.2012 jam lebih kurang 5.00 pagi, di rumah No. 32-B, Lorong Keriang, Jalan Langgar, Alor Setar, di dalam Daerah Kota Setar, di dalam Negeri Kedah Darul Aman, telah melakukan pembunuhan ke atas Supama a/p Govindasamy, KP: 440929-02-5426, dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan dan dibaca bersama di bawah seksyen 34 Kanun yang sama.”

[2] At the conclusion of the trial, the Appellants were convicted and sentenced to death by the High Court at Alor Setar for the aforesaid offence. Aggrieved by the conviction and sentence, the Appellants appealed to this Court. We had unanimously dismissed the appeal and affirmed the conviction and sentence meted by the High Court Judge. We now give our reasons. We will thenceforth refer the Appellant in Appeal No. K-05(M)338-12/2015 (Appeal 338) as the 1st Accused/ 1st Appellant and the Appellant in Appeal No. K-05(M)340-12/2015 (Appeal 340) as the 2nd Accused/ 2nd Appellant.

B. THE PROSECUTION’S CASE:

[3] On 1.11.2012, at about 4.30 a.m., Thavamani Veloo a/p Kumara Veloo (SP3) together with her daughter, Visalatchi a/p Krishnan (SP12), who were the neighbours of the deceased Supama a/p Govindasamy (the deceased), heard the deceased’s voice which came from deceased’s house and she was crying as if in pain and they heard the deceased said “release me” repeatedly. SP3 and SP12 then heard a male voice speaking in Tamil language saying “close mouth don’t make noise”. Suddenly SP12 and SP3 heard a loud noise from the door of the fence in front of the deceased’s house, but they could not see anybody exiting the deceased’s house. SP3 then telephoned her neighbour by the name of Latchmi a/p Pandurengan (SP2) to go and see the deceased.

[4] According to SP2, on 1.11.2012, at about 5.00 a.m., she received a telephone call from her neighbour known as “Aunty”, informing her that the neighbour had heard the deceased’s voice coming from the deceased’s house and that the deceased was crying. SP2 then woke up her son, Sivalingam a/l Siva Chandran Moorthi (SP9), and asked him to go to the deceased’s house to see what had transpired there. SP2 had also shouted for help to her other neighbours when she saw the deceased’s house’s door was opened a little bit.

[5] SP9 recounted how he was awakened by his mother, SP2, on 1.11.2012 at about 5.00 a.m. and he then went to call on his neighbour, Chua Chong Keong (SP21), and his son, to go to the deceased’s house to see what was happening there. SP9 and SP21’s son had climbed over the deceased’s house’s fence and entered her house. They saw human legs in the front room of the deceased’s house. Later, SP21 had come back to the deceased’s house with a hammer and broke the door at the front of the deceased’s fence. SP21 then entered the deceased’s house and saw the condition the deceased was in, that is, the deceased’s mouth was tied, her sarung material was raised up and her hands were tied at the back of the deceased’s body. SP21 had also called 3 Indian ladies, who were deceased’s neighbours, to help him to open the ties to the deceased and directed that the deceased be lifted and placed on a chair in the lounge.

[6] One of neighbouring ladies who helped SP21 was Balanagamah a/p Velloou (SP10) and who was assisted by 2 of her sisters. SP10 found the deceased lying on the floor with her hands tied with a green cotton sari blouse, her mouth was also tied with a bath towel, and the material worn by the deceased was raised up to her waist. SP10 had untied the bath towel from the deceased’s mouth. She found the knot to be tightly tied. SP10, with the assistance of her 2 sisters and SP21 then moved the deceased to the lounge area and placed her on a chair. One of the deceased’s neighbour then called the police and informed them of the incident.

[7] Kpl Mohd Hassan bin Mohd Taqiyuddin (SP11) went to the deceased’s house and found the deceased in a chair. SP11 then informed the police in the police patrol car to go to the place of incident. At about 6.20 a.m. Sarjan Fazil bin Ismail (SP5), who was instructed to go to the place of incident, went there and found the deceased unmoving and informed the Pusat Kawalan MPV, Police District Headquarters Kota Setar, of the incident and requested for an ambulance be sent to the place of incident.

[8] At 7.20 a.m. the investigating officer DSP Shankar a/l Sanrakasa (SP18/IO) arrived at the place of incident and requested the forensic police to come to the location in order to conduct investigation there. SP18 had also called the forensic expert from the Hospital Sultanah Bahiyah, Dr. Mohd. Suhani bin Mohd Nor (SP8) to go to the place of incident to examine the corpse of the deceased. SP8 arrived at the location at about 9.15 a.m., examined the corpse and requested the corpse be brought to the Hospital for post mortem to be conducted. The corpse was sent to the Hospital and the post mortem on the corpse was conducted by SP8. SP8 found that the cause of death of the deceased was by smothering. According to SP8, SP18 and the deceased’s son, Saravana Kumar a/l Ramasami (SP19), they had identified the deceased as Supama a/p Govindasami, identification card number 440929-02­-5426.

[9] A police forensic team headed by Sarjan Azmi bin Shaari (SP16) arrived at the deceased’s house to carry out investigation and had taken several objects from the crime scene which was suspected to have relevance to the death of the deceased. SP16 was able to obtain fingerprints from objects found at the crime scene. These objects and the fingerprints were then handed over to the I.O./SP18.

[10] SP18 then handed over the objects to the Chemist Department for DNA testing. The chemist, Puan Padillah binti Yahya (SP6), confirmed that there were the DNA of the deceased as well as the two Accused found on the exhibits taken from the crime scene. SP18 had also sent the said fingerprints which were obtained to the Office of the Registrar of Criminals. Encik Puwira Jaya bin Osman (SP20), who was the Assistant Registrar of Criminals Malaysia, had confirmed that one of the fingerprints obtained was the fingerprint of the 1st Accused.

[11] On 1.11.2012, at about 3.30 p.m., the 1st Accused was arrested by Koperal Ramachandran a/l Munusamy (SP15); at about 4.30 p.m. on the same day Inspector Mohd. Amirul Fadly bin Mohamad had arrested the 2nd Accused. Inspector Mohd. Amirul Fadly had also taken several objects, including the clothes of both Accused, at the time he arrested the 2nd Accused. These objects taken were later handed over to SP18 and which were subsequently handed over to the Chemist Department by SP18 for DNA analysis.

[12] The prosecution had also tendered evidence through Lee Gaik Fong (SP13) that the deceased’s jewellery had been pawned at a pawnshop called Buan Lung Tong.

C. FINDINGS OF THE TRIAL JUDGE AT END OF THE PROSECUTION’S CASE

[13] At the end of the prosecution’s case, and upon the maximum evaluation of the prosecution’s evidence, the learned trial judge found the prosecution had successfully proven a prima facie case against both the Accused.

[14] The learned trial judge made the following findings of fact, amongst others:

14.1 that the prosecution had proved that the deceased had died, the identity of the deceased;

14.2 accepted the testimony of the forensic expert, SP8, who conducted the post mortem on the deceased, that the cause of the deceased’s death was by smothering (tekupan);

14.3 there was no direct evidence that the two Accused had cause injuries to and smothered the deceased;

14.4 however, there were circumstantial evidence adduced by the prosecution which gave rise to the inescapable inference that both the Accused were at the crime scene at the material time and that at least one of them had caused the injuries to and smothered the deceased. The circumstantial evidence included the finger prints of the 1st Accused was found at the crime scene; the deceased’s jewellery was pawned by the 1st Accused at a pawnshop which showed that the 1st Accused was at the crime scene. The DNA of both the Accused were found on the exhibits found at the crime scene which showed that both the Accused were at the crime scene at the material time. The deceased’s neighbours’ evidence proved that the injuries to the deceased and the ties to the deceased’s mouth and hands were newly inflicted upon the deceased when they found the deceased;

14.5 the prosecution had proved successfully that there was common intention of both the Accused to commit the offence and therefore there was no need to prove that they together had caused the act which caused the death of the deceased. Therefore, the second ingredient of the offence had been proven;

14.6 the actions of both Accused fell under paragraph 300(c) of the PC, that is, the act-

"if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or”,

seeing that both the Accused had the intention of causing injuries to the deceased’s body, so that the deceased could not make noise and shout.

[15] In view of the above, the learned judge found that the prosecution had proven the ingredients of the offence under section 302 read together with section 34 of the PC and a prima facie case against both the Accused. Both the Accused were ordered to enter their defence.

D. THE ACCUSED’S DEFENCE:

[16] Both the Accused gave sworn testimonies in their respective defence. Both the Accused did not deny that they had entered the deceased’s house at the material time; that they had broken into the deceased’s house to steal. They, however, denied causing the death of the deceased. The 2nd Accused admitted that he had closed the mouth of the deceased with a cloth, whilst the 1st Accused denied touching the deceased.

E. FINDINGS OF THE TRIAL JUDGE AT END OF DEFENCE’S CASE

[17] The learned trial judge found both the Accused’s defence were mere denial and did not raise any reasonable doubt against the prosecution’s prima facie case. The Accused persons were therefore found guilty of the offence as charged and convicted of the same. The learned Judge sentenced them to death and that they be hanged by the neck till they are dead as mandated under section 302 of the PC read together with section 277 of the Criminal Procedure Code (CPC).

[18] Before us, counsel for the 1st Accused/ 1st Appellants raised two issues, that is, whether the prosecution had failed to prove common intention of both the Accused to commit murder; and whether the learned trial judge had erred when he found both the Accused’s actions fell within paragraphs 300(c) of the PC.

[19] In respect of the first issue, evidence showed that the 1st Accused was not involved in the offence. This was because the learned trial judge found that, at paragraph 19 of his Grounds of Judgment-

"Keterangan yang dikemukakan oleh pihak pendakwaan tidak dapat membuktikan secara tepat siapa yang mengenakan kecederaan dan serkupan ke atas simati...”

The 1st Accused, in his sworn testimony at the defence stage, had stated that he did not touch the deceased. What he saw was the 2nd Accused closing the mouth of the deceased, whereupon he took the house keys and opened the main door of the deceased’s house. This evidence was confirmed by the 2nd Accused. This evidence showed that the 1st Accused did not have in his mind that the action of the 2nd Accused closing the deceased’s mouth was an action which could result in the death of the deceased. There was, further, no evidence to show by inference that there was planning or meeting of minds of both the Accused to close the deceased’s mouth until it caused her death. The case of Krishna Rao a/l Gurumurthi v Public Prosecutor & Anor Appeal [2009] 3 MLJ 643 F.C. was referred to for this proposition. It was submitted that the learned trial judge had failed to take into account these events before making his finding on whether or not there was common intention between both Accused.

[20] As for the second issue, it was the 1st Accused’s submission that based on the prosecution’s and defence’s evidence, it was clear that both the Accused had broken into the deceased’s house to rob her. There was no evidence to show that there was a struggle or actions which could have resulted instant death. That when the deceased was found by the witnesses concerned, SP10 in particular, the deceased was still alive. Therefore, the act of closing the deceased’s mouth was not an act intended to be inflicted which was sufficient in the ordinary course of nature to cause death. Intention in this context was to be inferred as held by the Federal Court in Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ 174.

[21] The 2nd Accused had raised the same issue as the 1st Accused on whether common intention had been proven by the prosecution. This was because none of the prosecution’s witnesses had seen what had transpired at the crime scene nor how many persons were present at the material time. There was no evidence to show the role played by the 2nd Accused in order to have the common intention to kill the deceased. Mere presence at the crime scene was insufficient to fasten the liability under section 34 of the PC- see Mohd Shamsul Abdul Aziz v PP & Another Appeal [2016] 1 CLJ 713 C.A.

COMMON INTENTION:

[22] We agreed with the learned trial judge that the prosecution had proven a prima facie case against the Accused for the offence committed based mainly on circumstantial evidence. The evidence before the trial judge had been enumerated by the learned Deputy Public Prosecutor (DPP) as follows:

22.1 SP3 was woken up by what sounded like “kucing menangis atau kanak-kanak menangis” at about 4.30 a.m. The sound had come from her neighbour’s house;

22.2 SP12 also heard voices coming from the deceased’s house at about 5.00 a.m.; in particular the sound of a woman screaming and crying and pleading “lepaskan saya” and the voice of a man speaking in Tamil telling the woman twice to “tutup mulut”;

22.3 SP8 testified that the cause of death of the deceased’s was due to smothering;

22.4 SP8 testified that the 3 items of clothing, namely, P14 (white towel), P16 (pink T-shirt) and P20 (green shirt) could have caused the death of the deceased by smothering;

22.5 through the evidence of SP6, the forensic chemist-

22.5.1 the DNA of the 1st Accused was found on the pliers P18 marked ‘3’ found in the deceased’s house;

22.5.2 a mixed DNA of the deceased, the 1st Accused and the 2nd Accused were found on the green shirt P20;

22.5.3 a mixed DNA of the deceased and the 1st Accused were found on the keys marked ‘5’ (P22)

22.6 SP20 testified that the finger prints lifted at the scene of the crime, namely found on the padlock marked P24-D in the cupboard in the upstairs bedroom, matched those of the 1st Accused;

22.7 the jewellery, namely 3 lockets, belonging to the deceased was pawned by the 1st Accused at the shop where SP13 was working the same morning as the incident took place, that is, on 1.11.2012 at about 11.03 a.m.

[23] From the above evidence tendered, it could be seen that by the presence of both the Accused persons’ DNA on the green shirt P20 and the fingerprint of the 1st Accused found in the deceased’s house, it placed both the Accused at the scene of the crime.

[24] The 1st Accused denied even touching the Deceased, whilst both of the Accused stated that they went to the deceased’s house to only steal from the deceased. Both these assertions belied the fact that both of the Accused’s DNA were found on the green shirt P20 and the deceased had died through smothering by the towel which was used to stuff her mouth and which was tightly knotted.

[25] We agreed with the learned DPP’s submission that all the facts taken together could only point to one thing-that the Accused persons were the persons who had smothered the deceased in order to keep her quiet as the deceased was shouting and making noises and thereby had caused her death. Although it could not be determined which one of the Accused persons who had actually caused the death of the deceased by smothering, but since they were also charged together under section 34 of the PC, both were equally liable for the death of the deceased.

[26] The issue of common intention had been extensively discussed in the Federal Court case of Farose Tamure Mohamad Khan v PP & Other Appeals [2016] 9 CLJ 769, per Raus Sharif PCA (as he then was), paragraphs 65, 66, 70 to 76 as follows:

[65]... we still hold the view which had been widely accepted by our courts that in a criminal prosecution where s. 34 of the Penal Code is invoked, it is not incumbent on the prosecution to prove that there existed between the participants a common intention to commit the crime actually committed. As long as there is a common intention to commit a criminal act, which resulted to the commission of a crime actually committed, s. 34 can operate against all persons involved in the commission of the actual crime.

[66] The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. Direct evidence as proof is difficult to procure because the common intention is essentially a state of mind. Invariably inferences have to rely upon arising from such acts or conduct of the accused, the manner in which the accused arrived at the scene, the nature of injury caused by one or some of them or such other relevant circumstances available. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether there is a common intention to commit the offence for which the accused could be convicted. The facts and circumstances of each case might vary. As such, each case should be decided based on the facts involved.

[70] Simply put, common intention is concerned with the principle of joint liability in penal law. This principle has been set out in numerous judgments in our jurisdiction. In Krishna Rao, the appellants were charged for the murder of four persons in the course of robbery of a jewelry shop. In the High Court, Kang Hwee Gee J (as he then was) in convicting the appellants, quoted the law on common intention expressed by the Singapore Court of Appeal in the case of Shaiful Edham bin Adam & Anor v. PP [1999] 2 SLR 57 in the following words:

1. ...

2. all that was necessary for the prosecution to prove was that there was in existence a common intention between all the persons involved to commit a criminal act and that the act which constituted the offence charged (the ‘criminal act’ referred to in s. 34 of the Penal Code) was committed in furtherance of that criminal act. It was not necessary to prove that there had to be a common intention to commit the crime actually committed;

3. the rider to this proposition was that the participants must have had some knowledge that an act may be committed which would be consistent with or in furtherance of, the common intention;

[71] The decision of the High Court was affirmed by the Court of Appeal and the Federal Court. The Federal Court approved the trial judge’s application of the legal principle relating to s. 34 of the Penal Code. (See [2009] 2 CLJ 603; [2009] 3 MLJ 643). The Federal Court held that having regard to all the circumstances of the case, the theft or burglary or robbery and the murders were an integral part of one and the same transaction. Put differently, the Federal Court held that this was not a case of a mere recovery of recently stolen property from an accused person. There were several other cogent pieces of circumstantial evidence which go to establish beyond a reasonable doubt that the first and second appellants in that case participated in the commission of the murders in the context of s. 302 being read with s.34 of the Penal Code.

[72] In another case of PP v. Teong Lung Chiong & Ors [2010] 4 CLJ 1; [2010] 5 MLJ 193, the respondents were convicted by the High Court of the murder of the deceased who was raped prior to her death. The respondents were acquitted by the Court of Appeal. On appeal to the Federal Court, the Deputy Public Prosecutor categorized the issue on common intention as there was a common intention on both the respondents to rape and murder the deceased, Hew Leh Poh and went on to submit that:

Upon a finding of facts that there was a common intention to rape Hew Leh Poh and in furtherance of that common intention the young girl was murdered in order to prevent her from reporting on them (the respondents), the Court of Appeal clearly erred in not directing its intention to the application of section 34 to uphold the conviction of murder imposed on the respondents.

[73] The Federal Court agreed with the Deputy’s submission and restored the respondents’ convictions for murder. The pertinent issue before the Federal Court was who then amongst the respondents who actually killed the deceased? The Federal Court in addressing this issue held that based on the cumulative effect of the respective cautioned statements of the respondents, even when considered separately and independently in relation to the issue of common intention, and the other evidence adduced, circumstantial or otherwise, the responsibility should rest solely on all the respondents. In this regard, the Federal Court held that the trial judge was therefore, correct when he said in his judgment that although the respondents in their cautioned statements laid the blame for the actual strangling of the deceased on one another, the fact remained that the deceased was strangled to death by the act or acts of one or more or all of the respondents.

[74] The Federal Court further held that the Court of Appeal was wrong in looking for a direct link to who actually amongst the respondents who committed the act or acts in killing the deceased. The Court of Appeal’s approach according to the Federal Court was not quite in tandem with settled law that is when s. 34 of the Code is invoked, there is no requirement for the prosecution to prove who exactly ultimately caused the deceased’s death. The Singapore case of Ong Chee Hoe v PP [1999] 4 SLR 688 was cited with approval.

[75] From the above cases, we are of the view that the law on the operation of s. 34 of the Penal Code is well settled. We have no reason to depart from this established principles on common intention. As stated earlier, the existence of a common intention is a question of fact of each of the case to be proved as a matter of inference from the circumstances of the case.

[76] Reverting back to the specifics in the present case, the question is whether there was participation by the accused persons which culminated in criminal acts that resulted in the death of the deceased. Having considered the material in the record provided to us, we are satisfied that having regard to all the circumstances of the case, the theft or burglary or robbery-call it what you will-and the murder of the deceased were an integral part of one and the same transaction. Put differently, there are several cogent pieces of circumstantial evidence which go to establish beyond a reasonable doubt that the accused persons participated in the commission of the murder in the context of s. 302 being read with s. 34 of the Penal Code.

[Emphasis added]

[27] Following from the Farose Tamure Mohamad Khan’s case, based on the circumstantial evidence alluded to before this, we found that both the Accused had wanted to rob the deceased and had in the process of robbing her wanted to keep her quiet by smothering her which resulted in her death. The common intention of both the Accused was to commit the crime of theft which resulted in the crime actually committed as one of murder. Section 34 of the PC then operated on both the Accused.

PARAGRAPH 300(C) PC

[28] As for the second issue raised by the 1st Accused, on whether the learned trial judge had erred when he found both the Accused’s actions fell within paragraph 300(c) of the PC, we refer to the Indian Supreme Court case of Rajwant Singh v State of Kerala AIR 1966 SC 1874 (which referred to section 300(c) of the Indian Penal Code, which is in pari materia with ours) where it was held at page 1878 as follows:

“(11) The third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In this clause the result of the intentionally caused injury must be viewed objectively. If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequences or not...

[Emphasis added]

[29] This Court had the occasion to explain the meaning of paragraph 300(c) of the PC in the case of Aziz Mat Shah v PP [2010] 4 CLJ 305, per Abdul Malik Ishak JCA (as he then was), at paragraph 40, as follows:

“[40] In regard to the third ingredient concerning the third limb to s. 300 of the Penal Code, we categorically say that the learned High Court judge was correct in her assessment of the available evidence to invoke the third limb-that would be limb (c), to s. 300 of the Penal Code. Towards this end, it is germane to refer to the case of Virsa Singh v. State of Punjab AIR 1958 SC 465 where V Bose J, enumerated the ingredients to be proved under the third limb to s. 300 of the Indian Penal Code which is in pari materia with our third limb to s. 300 of the Penal Code. There, at p. 467, his Lordship had this to say:

To put it shortly, the prosecution must prove the following facts before it can bring a case under s. 300 ‘thirdly’.

First, it must establish, quite objectively, that a bodily injury is present.

Secondly, the nature of the injury must be proved. These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300 ‘thirdly’. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.”

[Emphasis added]

[30] Based on the authorities cited above, we then refer to the testimony of SP8 during examination-in-chief who explained the meaning of smothering and how it could cause the death of the deceased as follows:

“Q: Hasil pemeriksaan Dr. boleh nyatakan sebab atau punca kematian simati?

A: Hasil daripada apa yang saya lihat di tempat kejadian serta pemeriksaan post-mortem yang telah dijalankan, saya berpendapat kematian simati adalah berpunca daripada tekupan (smothering).

Q: Boleh Dr. perjelaskan bagaimana punca tekupan itu boleh berlaku yang menyebabkan kematian simati?

A: Tekupan adalah didefinisikan sebagai suatu keadaan di mana rongga masuk pernafasan iaitu sama ada mulut atau hidung atau biasanya kedua-duanya sekali ditekup ataupun ditutup hingga mengakibatkan keadaan tidak cukup oksigen ataupun espiksia sehingga boleh mengakibatkan kematian.

Q: Boleh Dr. perjelaskan apakah objek atau barang yang boleh digunakan untuk menjadikan seseorang itu mati akibat tekupan?

A: Secara amnya tekupan boleh dilakukan dengan menggunakan objek yang bersifat tumpul yang lembut ataupun tidak keras umpamanya tangan, bantal ataupun kain yang boleh menutup lubang hidung dan mulut.

Q: Boleh Dr. perjelaskan untuk berlaku suatu tekupan sehingga menyebabkan adakah tekupan hanya pada mulut ataupun perlu mulut dan hidung ditutup?

A: Ianya bergantung pada bagaimana tekupan dilakukan. Sekiranya tekupan tersebut dilakukan sebagai gagging ataupun ikatan pada mulut atau sesuatu bahan disumbat ke dalam mulut maka ini juga boleh menyebabkan sekatan atau penyumbatan pada bahagian belakang rongga mulut yang juga secara langsungnya akan menyumbat laluan pernafasan bahagian atas yang dikongsi bersama oleh rongga mulut dan hidung. Ini boleh mengakibatkan kelemasan (espiksia). Satu lagi cara tekupan boleh berlaku sekiranya tangan atau sebarang bahan seperti kain diguna untuk mengikat bahagian bawah muka dan ikatan atau gag ini juga boleh turut menutup rongga hidung sekiranya bahan tersebut bersifat lebar dan ini juga akan menghasilkan kelemasan yang boleh mengakibatkan kematian.

Q: Dalam kes ini Dr. menyatakan punca kematian adalah tekupan. Berdasarkan tekupan, adakah faktor umur memainkan peranan sekiranya seseorang itu ditekup?

A: Secara amnya ia mungkin boleh menjadi faktor iaitu sama ada dari segi keupayaan seseorang untuk melepaskan diri daripada tindakan tekupan tersebut ataupun dari segi kerintangan seseorang terhadap kesan tekupan yang dilakukan.

Rujuk P14, P16 dan P20

Q: Adakah kain-kain ini boleh menyebabkan kematian simati akibat tekupan?

A: Mungkin boleh.”

[Emphasis added]

[31] We therefore were of the view that the learned trial judge was correct in invoking paragraph 300(c) of the PC as having been proven by the prosecution against both the Accused.

F. CONCLUSION:

[32] We found no merits in this appeal. We were in complete agreement with the learned trial judge when he found that the prosecution had proven a prima facie case against the Accused persons and that the Accused had failed to raise any reasonable doubt against the prosecution’s case. That being the case, we found that the prosecution had proven their case beyond a reasonable doubt against both the Accused. We were satisfied that the learned trial judge had not misdirected himself in any way to occasion an error either on the law or the facts to warrant appellate intervention. We accordingly found the conviction of both the Accused/ Appellants and their sentence safe. We therefore unanimously dismissed the appeals and affirmed the conviction and sentence imposed by the learned trial judge.

sgd

UMI KALTHUM BINTI ABDUL MAJID
Judge
Court of Appeal Malaysia
Putrajaya

Dated: 15.2.2018

COUNSEL

For the 1st Appellant: Dato’ Hanif Hassan, Tetuan Hanif Hassan & Co

For the 2nd Appellant: Muhammad Rafique, Tetuan Law Practice of Rafique

For the Respondent: Norinna Bahadun, Deputy Public Prosecutor, Attorney General’s Chambers

Legislation referred to:

Criminal Procedure Code, Section 277

Indian Penal Code (India), Section 300(c)

Penal Code, Sections 34, 300(c), 302

Judgments referred to:

Aziz Mat Shah v PP [2010] 4 CLJ 305

Farose Tamure Mohamad Khan v PP & Other Appeals [2016] 9 CLJ 769

Krishna Rao a/l Gurumurthi v Public Prosecutor & Anor Appeal [2009] 3 MLJ 643

Mohd Shamsul Abdul Aziz v PP & Another Appeal [2016] 1 CLJ 713

Rajwant Singh v State of Kerala AIR 1966 SC 1874

Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ 174

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