IN THE HIGH COURT OF MALAYA IN SHAH ALAM

CRIMINAL CASE NO: 45-80-2004

BETWEEN
PUBLIC PROSECUTOR
AND
IRAWADI BIN MOHAMMAD

GROUNDS OF JUDGMENT
On 11th of November 2009, I had convicted the accused on the charge of murder
under Section 300 of the Penal Code and sentenced the accused to be hanged by
the neck until death under Section 302 of the Penal Code. The original charge
against the accused reads as follows:
That you, on 26 July 2004, between 3.30 pm and 5.00 pm at No. 2-1-6, Block ST2,
Apartment Sri Tanjung, Jalan 7/1D, in the state of Selangor Darul Ehsan did
commit murder, namely by causing the death of Norzi Ayu binti Mohd Noor and as
such you have committed an offence that is punishable under S. 302 of the Penal
Code.

The prosecution has called 20 witnesses to testify on behalf of the prosecution.

Before proceeding further, it is pertinent to note that I have not had the pleasure of
hearing the testimony of any of the 20 prosecution witnesses and neither did I have
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the opportunity of hearing the submissions at the end of the prosecution case. In
fact, I was not the presiding judge having the hearing of these matters. From the
record of the file minutes, on the 16th of July 2007, the first presiding judge had
transferred the case to the second presiding judge with the agreement of the deputy
public prosecutor, the former defence counsel and the accused himself. The second
presiding judge then proceeded to hear submissions of the deputy public prosecutor
and the former defence counsel and had delivered her decision on the 19 th of June
2008 that the prosecution has established a prima facie case on the charge against
the accused. As such, the findings at the end of the prosecution case in this
judgment are based solely on a reading of the notes of evidence and evaluation of
the relevant exhibits from the record. The second presiding judge had called the
accused to enter his defence and the hearing date was fixed to be continued on the
3rd and 4th of November 2008. On the 3rd of November 2008, the court was
informed by the deputy public prosecutor that the former defence counsels
practicing certificate had been cancelled thus the latter is barred from practising as
an advocate and solicitor.

When I took over conduct of this matter upon my transfer to this court, the accused
had conveyed his wish to have the trial heard before the first presiding judge. This
court had also instructed the accused to appoint a counsel of his choice.
Alternatively, the accused was asked whether he would wish to have a court
appointed counsel. Upon being informed by the accused as to his wish to have a
court appointed counsel, a new defence counsel was appointed by the court
sometime in May 2009. Before the continued hearing of the defence case could
begin, the defence counsel had requested that the accused be sent for psychiatric
observation. This court had received the medical report regarding the psychiatric
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observation of the accused from Hospital Bahagia on 24th of July 2009 that
confirmed that the accused was not suffering from any mental disorder especially
on the day of the incident on 26 th July 2004 and was fit to stand trial. As to the
request of the accused to have the matter heard before the first presiding judge, it is
suffice to state that the newly appointed counsel did not apply for such directions
from the Chief Judge of Malaya thus the case was continued before this court.

The facts as derived from the prosecution evidence

On 26th July 2004, about 3 in the afternoon, Siti Suhana binti Hamdan (SP6) was
locking her motorcycle at the parking lot beneath Block ST1 when she saw the
victim at Level 1 of Block ST2 which was opposite Block ST1, waving her hands
at the former. At that particular time, SP6 did not know the victim. The victim was
in red clothing and wearing a blue scarf. SP6 then asked the victim whether there
was anything the matter. The victim had thrown a piece of paper towards SP6. SP6
went over to the thrown piece of paper and discovered it was a note (Exhibit P13)
which reads Tolong call nombor ni 016-3618144 (Azman) [translated as please
call this number 016-3618144 (Azman)] followed by the words emergency!!!
suruh datang sekarang Ayu (translated as emergency!!! ask to come now
Ayu).

After throwing out the note, the victim then hurriedly closed the window of her
flat. SP6 then drove her motorcycle in search of police personnel which she found
at a nearby restaurant. SP6 met with Corporal Hajaizi bin Jaafar (SP9) at the
restaurant and informed the latter what she had seen and showed the contents of
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the note. SP9 then dialed the telephone number on the note and instructed SP6 to
speak with the person whose number was stated on the note viz. Azman bin Mat
Zain (SP4). The note was kept by SP9 who later passed the note to the
investigating officer (SP20) for the present case.

SP4 was told by SP6 to go over to the victims flat because of an urgent matter. At
that particular time, SP4 was working at the security office of UKM in Bangi. SP4
was acquainted with both the victim and the accused through the silat society in
which all three were involved at UKM, Bangi from 2001 until 2004. SP4 was also
romantically involved with the victim. The accused had at one time confronted SP4
in the presence of the latters wife to leave the victim alone. After receiving the
telephone call from SP6, SP4 then proceeded to the victims flat which was about 5
or 10 minutes away from his workplace. SP4 had gone up to the victims flat. The
flat had a lock on its grill door. SP4 had also seen on the floor pieces of a broken
lock and chainsaw. The fact that there was half of a piece of a broken chainsaw
found on the floor outside the door of the victims flat is confirmed by the
testimony of the investigating officer, SP20.

SP4 testified that he had the suspicion that the accused was inside the flat with the
victim, therefore he had called out to the accused to open the door. After almost
half an hour attempting to persuade the accused to open the door, SP4 had walked
down to the ground floor where he had taken a stepladder from a lorry that was
parked nearby. SP4 had then climbed up to the victims flat and upon discovering
that the door at the rear balcony was similarly locked, SP4 had opened the rear
balcony window and opened the backdoor from the inside. SP4 then entered the
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flat into the kitchen. SP4 had opened the kitchen door and walked into the living
room. As he had entered the living room, SP4 saw the victim and the accused
heading towards the front entrance of the flat. According to SP4s testimony, the
accused, upon seeing SP4 in the flat, had grabbed the victim by her neck while
holding a knife in his left hand. The accused was holding the knife and pointing it
towards the victims abdomen. SP4 then attempted to pacify and persuade the
accused to release the victim. SP4 spoke to the accused and reminded the accused
to be patient, to think of God, that the accused was still a young man and could
meet with other women, to leave the victim and SP4 would not report the matter to
the police. According to the testimony of SP4, the accused uttered the following
words upon hearing SP4 speak Biar orang lain tak dapat Norzi Ayu [translated as
Let others are unable to be with Norzi Ayu].

SP4 had tentatively walked towards the main door and closed the main door whilst
the accused and the victim moved away from SP4. SP4 tried to talk to the accused
into releasing the victim for about half an hour. It was then that the victims car
alarm had gone off. The keys of the victims car were being held by the accused
and the latter had tried to shut off the alarm. The victim had taken the keys from
the accused and went into her bedroom where she managed to shut off the alarm.
The accused followed the victim into her bedroom, shut and locked the bedroom
door. SP4 had knocked on the bedroom door and called out to the victim several
times but was unanswered. The victim and the accused remained in the bedroom
for about 5 to 10 minutes. SP4 took a bunch of keys on a nearby table and
attempted to open the bedroom door. On the second attempt, the bedroom was
opened.

Upon opening the bedroom door, SP4 saw the accused lying on his back at the
head of the bed while holding the knife in the latters left hand. The victim was
lying on her stomach at the end of the bed. SP4 then jumped onto the accused and
attempted to wrestle the knife from the accused while the latter attempted to stab
SP4 in his stomach. SP4 then told the victim to leave the room and the victim
complied with the direction. SP4 managed to escape from the accused, left the
bedroom and tried to shut the bedroom door but was hindered by a piece of cloth
underneath the door. It was then that SP4 saw Amri Sardi bin Yusof (SP5) in the
flat. SP4 then asked SP5 to hold the door shut to prevent the accused from
escaping from the bedroom.

SP5 had gone to the victims flat on the fateful day upon the request of the victims
boyfriend, Mohd Izral bin Yahya Umpong (SP10). SP10 was in contact with the
victim during the morning of the fateful day when SP10 discovered that the victim
was unwell and was not coming in to work. Later in the afternoon SP10 tried to
contact the victim on her hand-phone but failed. Since SP10 did not possess a
vehicle, he had called SP5 and requested the latter to go over to the victims flat to
check out her condition.

SP10 and the victim had met at work where the victim was working as a research
officer and SP10 was an IT technician at IMR. SP10 testified that he had
knowledge that the victim and the accused were lovers since university days but
that in 2004, the relationship had ended. SP10 and the victim had even met up with
the accused to discuss regarding the blossoming relationship between the victim
and SP10 with the accused about 1 month prior to the incident on 26 th July 2004.
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The second time SP10 met with the accused was at the Billion Shopping Centre in
Bangi where the accused and SP10 had verbally argued regarding the relationship
between SP10 and the victim. The third meeting was 1 day prior to the incident on
26th July 2004 at the Silat Competition held in UKM. During the third meeting,
SP10 did not speak with the accused but had seen the accused throughout the
competition. In his testimony, SP10 stated that the victim and he had agreed to
marry. SP10 testified that although the victim and the accused had originally
planned to get engaged sometime in May 2004, the plan did not materialize
because the victims family was against the relationship between the accused and
the victim. The fact that the victim and the accused was never engaged prior to the
incident of the fateful date is confirmed from the testimony of the victims father,
MD Noor bin Dahari (SP11). It was after the failed plan to get engaged that the
relationship between the accused and the victim started to sour.

When SP5 arrived at the victims flat, SP5 attempted to contact the victim on her
hand-phone but failed. SP5 then went up to the first floor where the victims flat
was located and saw that the grill door was opened but the main door was closed
and locked. SP5 testified that he saw that the lock for the grill door was lying on
the floor outside the flat. SP5 took the lock in order to make a police report. It was
then that he heard loud voices from inside the flat. SP5 proceeded to the ground
floor and called the victims hand-phone. After the second call, a mans voice
answered the call with Apa hello-hello upon SP5 speaking hello into the
phone. Then the call was disconnected. SP5 had sent a text message to the victims
phone stating that he is calling the police before he went up to the flat again. Upon
walking towards the victims flat, SP5 saw the victim lying on her back at the front
entrance of the flat. The grill door and the front door were both opened. The victim
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was lying on her back with the upper part of her body positioned outside the front
entrance and the lower part of her body sprawled inside the flat. SP5 went over to
the victim and asked the latter where her car keys were placed. The victim replied
that her car keys were with him whom SP5 believed to be the accused.

At the same time, SP5 heard loud shouting voices from the inside of the flat. SP5
went into the flat and saw the victims car keys placed on top of a washing
machine and SP4 was holding onto the door knob of the victims bedroom door.
SP5 was asked by SP4 to assist in ensuring the bedroom door was closed and was
told by the former to prevent the accused from leaving the bedroom. SP5 complied
with the instruction and held onto the doorknob of the bedroom. According to SP5,
the door of the bedroom was not fully shut therefore SP5 was able to see into the
bedroom where the accused was walking restlessly whilst holding onto a
bloodstained knife. The accused then had forcefully grabbed the door knob from
inside the bedroom and escaped. SP5 had run away towards the outer part of the
flat while being chased by the accused while still holding onto the bloodstained
knife. According to SP5, the accused had attempted to attack SP5 and SP4 with the
bloodstained knife. At that precise moment, SP4 had pulled the victim away from
the flat. SP4 had shouted several times to the accused to leave the premises. After
the third directive, the accused had left the premises. The victim was assisted by
SP4 and SP5 towards a car and the victim was driven by SP4 to the Kajang
Hospital. After assisting the victim into the car, SP5 had turned back towards the
flat where he had observed the accused standing near Siti Noor Aida binti Hassim
(SP7). According to the testimony of SP7, she did not speak to the accused nor had
the accused approached near to where she was standing in the parking lot.

The accused had run away when SP5 shouted towards the former. SP5 ran after the
accused and chased the latter on his motorcycle until SP5 arrived at a nearby river.
SP5 then left his motorcycle and continued to chase after the accused on foot until
he arrived at a vegetable farm. Upon arriving at the vegetable farm, SP5 saw one
Rajalingam a/l Perumal (SP8) who was minding goats nearby the river. SP5 yelled
at SP8 to stop the accused. According to the testimony of SP8, the accused was
carrying a bloodstained knife while he was running away. The accused managed to
escape into some bushes on an islet at the river edge. SP5 then informed SP8 to
keep watch while the former went to lodge a police report and bring the police to
the place where the accused was hiding. SP5 did not return with the police to
where SP8 was keeping vigil. SP8 waited for about an hour after which he left the
place.

From the testimony of Chief Inspector Redzuan bin Mat Salleh (SP19), he had
received information that the accused was at the Kajang Hospital on 26 th July 2004.
Thereafter, SP19 proceeded to the Kajang Hospital and arrested the accused at the
parking lot of the said hospital. SP19 and Assistant Superintendant Wong Yuen
Chuan (SP20) had brought the accused back to the scene of the crime at the
victims flat on the same day. The same parties then proceeded to the river to which
the accused had earlier escaped to in order to recover the knife but to no avail.
Early the next morning, SP19 and his team of police personnel once again brought
the accused to the river for the same purpose but the result was the same viz that
the knife was not discovered. In fact, until the end of the present trial the knife was
never discovered.

The victim was brought to the Emergency Unit at the Kajang Hospital upon being
brought to the hospital by SP4. The victim was attended by Dr Azahzuddin
Hamzah (SP13) who testified that he had observed that the victim was injured. In
the middle of the victims abdomen, SP13 had observed 2 stab wounds that were
very deep and closely positioned. SP13 had attended to the victim for about 2-3
hours before the victim was sent to the operating theatre. Dr Ajitha Krishnan a/p Dr
MP Krishnan (SP14) was the medical officer who had prepared the victim for
surgery before the latter was sent to the operating theatre. While attending and
preparing the victim for surgery, SP14 had occasion to ask the victim as to the
cause of her injuries to which the victim replied that she was stabbed by the
accused. SP14 was the medical officer who had assisted Dr Lo Hwa Loon (SP18)
during the surgery on the victim. According to the testimony of SP14, the victim
died on the operating table due to severe bleeding at 8.15 pm on 26th July 2004.

The internal examination of the victims abdomen from the post mortem report
(Exhibit P42) states inter alia that The right renal artery was also severed. The
wall of the inferior vena cava showed a large punctured wound with smooth
margin 1.5 cm in diameter involving the right antero-lateral wall. The cause of
death of the victim was therefore massive blood loss due to injury to the main
blood vessels (inferior vena cava) caused by stab injury to the abdomen. The
forensic pathologist who had conducted the post mortem on the victim, Dr Khairul
Azman bin Ibrahim (SP16) testified that there were blurred signs of bruising on the
victims right cheek, right breast, behind the left chest and behind the right thigh.
The bruises could not have been self inflicted by the victim and were probably
caused either by a blunt object or as a result of being punched. There was also a
suture on the victims abdomen that was caused by the operation conducted on the
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victim. SP16 testified that the cause of death was probably caused by an external
stabbing by a sharp weapon such as a knife. SP16 came to this opinion based on
the information that he had received from a medical officer and the nature of the
injury on the abdominal wall tissue that showed a deep wound. The injury on the
main blood vessel (inferior vena cava) was a punctured wound and round in shape
measuring 1.5 cm that was commensurate with a stab wound caused by a long
weapon. The injury to the main blood vessel could not have been caused during the
operation on the victim because the main blood vessel (inferior vena cava) is
positioned behind the abdomen. The injury to the main blood vessel (inferior vena
cava) is a serious injury that causes massive bleeding and could be considered as a
fatal injury because the injury is difficult to stem.

Dr Seah Lay Hong, SP15 is the Head of DNA Data Bank Unit, Serology and DNA
Section at the Malaysian Chemistry Department. SP15 has confirmed through his
testimony that there were traces of the victims blood on the T-shirt of the accused.

The argument of the former defence counsel

The former defence counsel had argued that SP4 and SP5 were not credible
witnesses because it was not stated in their police reports (Exhibits P8 and P12)
that the accused had attempted to attack them with the knife. If it were true that the
witnesses were so attacked by the accused, this fact should have been stated in
their police reports. As for the alleged knife, the former defence counsel argued
that it was never discovered and tendered into court as an exhibit. The witnesses
who had testified that the accused was holding a knife could also not give an
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accurate description about the knife. Thus, it could not reasonably be established
whether the knife was belonging to the accused or to the victim. The former
defence counsel also raised in argument that it is in issue whether the accused had
actually uttered the words Biar orang lain tak dapat Norzi Ayu. There was also
no evidence that the accused was jealous of the relationship between the victim and
SP5. There can also be no presumption that it was the accused who had replaced
the lock on the front entrance of the victims flat with a new lock because there
were no fingerprints recovered to connect the accused with such hypothesis or
presumption. SP5s testimony also consist of a contradiction with his police report
because in the latter, SP5 had stated that one Ibrahim and himself had chased after
the accused but later in his testimony, SP5 stated that he had chased the accused
until a nearby vegetable farm where he was assisted by an Indian man.

Argument of the deputy public prosecutor

The testimony of the eye-witnesses that placed the accused inside the victims flat
and nearby the vicinity of the victims flat is circumstantial evidence to prove that
the accused had stabbed the victim. The fact that SP4 and SP5 did not state in their
police reports that the accused had attempted to attack them with the knife is not a
fundamental omission as this fact is not in relation to the victim. The omission is
not material. There is also no contradiction in the testimony of SP4 regarding the
words alleged uttered by the accused Biar orang lain tak dapat Norzi Ayu. Even
there is any discrepancy the deputy public prosecutor argued that SP4s credibility
is not affected. The description of the knife could also be obtained from the
testimony of SP8 that the knife is about 8 inches in length including the testimony
of SP13 and SP16 who had testified that the depth of the wound was about 4-6 cm.
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Taken as a whole, the evidence all point to the conclusion that the accused had
stabbed the victim with the intention to kill her.

Findings at the end of the prosecution case

This court has to determine whether the prosecution has established a prima facie
case that the victim was dead; that the victims death was caused by injury or
injuries inflicted on the victim; that the accused had caused the injury or injuries
inflicted upon the victim that led to the latters death; and that the act of causing
death was committed with the mens rea under Section 300(a), (b), (c) or (d) of the
Penal Code. The learned judge in PP v. Nomezam Apandy bin Abu Hassan (No. 2)
[2008] 1 MLJ 681 at 691 held that

The duty of a judge at the close of prosecutions case in a criminal trial has been
set out by Gopal Sri Ram JCA at p 104 lines 36-41; p 107 line 16 to p 109 in Looi
Kow Chai & Anor v PP [2003] 2 AMR 89; [2003] 2 MLJ 65 (CA). A trial judge
sitting alone must determine as a trier of fact, whether the prosecution had made
out a prima facie case. He must subject the prosecution evidence to maximum
evaluation. There is no burden on the prosecution to prove its case beyond a
reasonable doubt at the close of the prosecutions case. This is in line with s 180(1)
of the Criminal Procedure Code. This proposition has been affirmed by the
Federal Court in two weighty judgments viz Balachandran v PP [2005] 2 MLJ 301
per Augustine Paul JCA (now FCJ); and PP v Mohd Radzi Abu Bakar [2005] 6
MLJ 393 per Gopal Sri Ram JCA.

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Death of the victim and injury or injuries had been inflicted on victim
In this judgment, the prosecution has established a prima facie case on the first two
ingredients for Section 300 of the Penal Code. The death of the victim identified as
Norzi Ayu binti Mohd Noor at 8.15 pm on 26 th July 2004 was confirmed by the
testimony of the attending medical officer (SP14) and the investigating officer
(SP19). The post mortem report (Exhibit P42) and the testimony of the forensic
pathologist SP16 have confirmed that the victim had died because of massive
blood loss due to injury to the main blood vessel (inferior vena cava) in the
abdomen caused by stabbing with a sharp weapon.

Whether the accused had the actus reus

The next issue for determination is whether the accused was the person who had
stabbed the victim in the abdomen and caused the fatal injury on the latter. In
arriving at the finding that it was the accused that had inflicted the injury on the
victim that led to her death, this court is relying on the circumstantial evidence as
testified by the prosecution witnesses and the victims own dying declaration. In
Yeap Boon Hai v. PP [2009] 5 MLJ 406 at 414, the Court of Appeal held that
We note that the principles governing circumstantial evidence have been
authoritatively considered in Jayaraman & Ors v PP [1982] 2 MLJ 306, where the
Federal Court was requested to answer the following question: Whether it is
correct law in dealing with a case which relies on circumstantial evidence it does
not make any difference if a court finds that in considering all the evidence it is
satisfied beyond reasonable doubt that the accused is guilty of the offence or if the
court says that the evidence points only to the irresistible conclusion that the
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accused is guilty. In delivering the judgment for the Federal Court, Suffian LP (as
he then was) referred to Mcgreevy v DPP [1973] 1 WLR 276; [1973] 1 ALL ER
503 (HL) and admirably analysed several local cases viz. The learned Lord
President: (4)In other words, in a case depending on circumstantial evidence, it is
enough if the court merely says that it is satisfied of the accuseds guilt beyond
reasonable doubt, without further saying that the facts proved irresistibly point to
one and only one conclusion, namely the accuseds guilt.

a. The testimony of SP4 and SP5

The testimony of SP4 evidences that the accused was the person who had held the
knife and inflicted the injury on the victim. There are two facts which established
that the accused had stabbed the victim with a knife and inflicted the injury that led
to her death. Firstly, the testimony of the star eye-witnesses viz. SP4 and SP5 that
the accused was in the victims flat on 26th July 2004. Secondly, the dying
declaration of the victim that implicated the accused as her attacker that was made
to the medical officer viz. SP14.

I find that SP4 and SP5 are both credible witnesses as to sequence of events that
transpired on that fateful day on 26th July 2004. In Yeap Boon Hai v. PP [2009] 5
MLJ 406 at 417 the Court of Appeal held that
We are of the view that no hard and fast rule can be laid down for determining the
credibility or otherwise of a witness. It is only when a witness gives or makes two
statements which differ in material particulars that there is ground for believing
that he is not a truthful witness: per Ali J (as he then was) in Mohamed Kasdi.
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Hence, if in a case the prosecution leads two sets of evidence, each one of which
contradicts and strikes at the other and shows it to be unreliable, then the court
would be left with no reliable and trustworthy evidence upon which the conviction
of the accused might be based, as inevitably the accused would have the benefit of
such a situation: per Vincent Ng JC (now JCA) in Lee Eng Kooi.

From a minute reading of the notes of evidence, I could not discover any
discrepancy, contradiction or bad faith in the testimony of SP4. In fact, SP4 was
forthright about his relationship with the victim and the accused. SP4 did not
attempt to shield the court from knowing the fact that he had had a romantic
relationship with the victim that resulted in a confrontation with the accused at his
house and in the presence of his wife and the victim. SP4s presence at the victims
flat was at the request of the victim. This fact is corroborated by the testimony of
SP6 who had taken the thrown note (Exhibit P13), called SP4 and informed the
latter that he had to urgently go over to the victims flat. SP4s testimony as to the
events from the time that he had arrived at the victims flat until he had opened the
bedroom door and saw the accused and the victim lying on the bed was consistent
both in his examination in chief and the cross examination.

SP5s presence at the victims flat on 26th July 2004 was at the request of his best
friend who was the victims lover, SP10. SP5 was not acquainted with the accused
at any time prior to the said incident on 26th of July 2004. SP5 had indeed stated in
his police report (Exhibit P12) that after the accused had escaped from the
bedroom, SP5 had run towards the outside of the flat and held closed the grille
door to prevent the accused from escaping. Whilst the grille door was being held
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closed by SP5, the accused had swung the knife towards SP5 (acah-acah pisau ke
arah saya). SP5 had explained that the person named Ibrahim stated in his police
report had indeed chased after the accused with SP5 on their respective
motorcycles but that the said Ibrahim had ceased from the chase when SP5
continued on foot. The omission of the Indian man from SP5s police report is not
a material or fundamental omission because the said Indian man has been
identified and called to testify in court as SP8. In Herchun Singh & Ors v. PP
[1969] 209 at 211, His Lordship Ong Hock Thye (as he then was) in delivering the
judgment of the Federal Court held that

In short, it is wrong to hold up the first information report as a sure touchstone by

which the complainants credit may invariably be impeached. It can only be used
for that purpose with discrimination, in much the same way as previous statements
by the witness are used, so that irrelevant errors in detail are not given
exaggerated importance, nor omissions, objectively considered in the light of
surrounding circumstances.

The fact that the accused had attempted to attack SP4 was not stated in his police
report is not a material omission because this fact is not relevant to establish
whether it was the accused that had stabbed the victim. In the preceding passage of
this judgment, I have accepted SP5s explanation regarding the mention of the said
Ibrahim and not the Indian man in his police report. The testimony of SP4 and SP5
are credible as the facts which are relevant and material regarding the death of the
victim had been succinctly stated in their police reports. Their testimony also finds
corroboration to place the accused in the vicinity of the victims flat from the
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testimony of the victims housemate, SP7. The fact regarding the accused running
away while holding a bloodstained knife was also corroborated from the testimony
of the Indian man, SP8. Although the stabbing of the victim occurred unobserved
by any other persons because the victim was locked in her bedroom with the
accused, I am able to accept the testimony of SP4 which is corroborated by the
testimony of SP5 and arrive at a reasonable conclusion that it was the accused that
had stabbed the victim with the knife. Although the knife in question was never
discovered and tendered into court as an exhibit, I am accepting the testimony of
both SP4 and SP5 which is corroborated by the testimony of SP8 that the knife did
exist and was being held by the accused on 26th of July 2004.

b. The dying declaration

The principle of law regarding the admissibility and assessment of a victims dying
declaration to which I am adhering by could be obtained from the following
judgments. In PP v. Nomezam Apandy bin Abu Hassan (No. 2) [2008] 1 MLJ 681
at 702, the learned High Court judge held thatAs a general rule, the law of evidence requires the best evidence to be adduced.
Exceptions do arise in order to allow the admissibility of hearsay evidence: see eg
PP v. Mohamad Fairus bin Omar [1997] 5 MLJ 57 (HC) (p. 303, Evidence,
Practice and Procedure, 2000 by Augustine Paul (now FCJ). The rationale for
admitting a dying declaration is that where a witness is dead, it may be better to
admit evidence of what he said that to deprive the court of all proof. Section 32(1)
(a) allows the admissibility of a dying declaration in criminal as well as civil
cases, as expressly stated under the terms whatever may be the nature of the
proceeding in which the cause of death comes into question. A dying declaration
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under S 32(1)(a) is relevant whether the person who made it was or was not, at the
time when it was made, under expectation of death. Under S 32(1)(a), the maker of
a statement who is dead and the statement in the form of a dying declaration as to
the cause of his death or circumstances of the transaction which resulted in his
death are relevant and admissible. The circumstances must have some proximate
relation to the actual occurrence. The transaction must relate to a set of facts
pertaining to the death of the victim such as the time or place of his death or about
meeting someone who may be the accused.

In Seraman @ Jayaraman a/l A Adipan v PP [2009] 3 MLJ 64 at 77 the Court of

Appeal held that
We are of the view that the oral and written statements of the deceased have been
properly admitted by the learned trial judge. We are unable to accept the
appellants contention that at the time of making the dying declarations the
deceased was heavily sedated with painkillers which could impair his thinking
process and he could also suffer from Korsakoff Syndrome. It is to be noted that
when the deceased made his statement to PW10 he was not referred to PW16 yet
and the time there was no evidence to suggest that he had been given morphinebased painkillers. Yet his statement to PW10 and the statements he gave later to
the other witnesses are consistent. As such how could it be said that the deceaseds
thinking process was impaired because of the morphine-based painkillers. The
learned trial judge has made a finding of fact that the deceased had the capacity
and clarity of mind to remember facts and details. With regard to Korsakoff
Syndrome the defences own witness, DW4, stated that a person could not suffer

19

Korsakoff Syndrome from burns. No question was asked by the defence to PW16
on this during cross-examination.

SP14 was the attending medical officer who had prepared the victim in the
emergency unit before the latter was sent to the operating theatre. SP14 had
attempted to sooth the victim. From the testimony of SP14, the victim was
conscious when she was at the emergency unit until she was delivered to the
operating theatre. While at the emergency unit, the victim had informed SP14 upon
being inquired that it was the accused that had stabbed her. SP14 is an independent
witness and an experienced medical practitioner. SP14s testimony that the victim
was conscious during the conversation in which the accused was identified as her
attacker is accepted by this court. Based on the testimony of SP14 and applying the
principles as enunciated in these two judgments, I am allowing into evidence the
victims dying declaration to prima facie establish that the accused had inflicted the
injury that eventually led to her death.

Whether the accused had the mens rea to murder the victim
The principles in which this court is to abide in assessing the facts and making a
finding that the accused had the intention to murder could be obtained from the
following judgments. In PP v. Chong Chai [2006] 3 MLJ 612 at page 621, the
High Court held that In my judgment, mens rea in the sense of intention or
knowledge being a mental element and a question of fact is not capable of being
established by way of direct evidence: Wing Commander Briggs in Re Eric
Woodford [1946] 2 MLJ 19 at p 21. It has to be gathered from indirect evidence by
20

reference to all the facts and circumstances prevailing in each particular case. In
this regard, the accuseds intention of causing bodily injury to the deceased may be
gathered from the accuseds act in particular and the entire evidence adduced for
the prosecution in general.

In PP v. Nomezam Apandy bin Abu Hassan (No. 2) [2008] 1 MLJ 681 at 695, the
High Court held that Mens rea in the sense of intention or knowledge being a
mental element is not capable of being established by way of direct evidence. It has
to be gathered by way of indirect evidence, taking into consideration all the facts
and circumstances prevailing in each particular case. In this regard, the accuseds
intention of causing bodily injury to the deceased may be gathered from the
accuseds act or acts.

One of the factors that could assist the court in making an inference as to the
intention to murder is the nature and extent of the injury inflicted on the victim. In
the Federal Court case of Tham Kai Yau & Ors v. PP [1977] 1 MLJ 174 at page
176, it was held that - Whether the offence is culpable homicide or murder
depends upon the degree of risk to human life. If death is a likely result, it is
culpable homicide; if it is the most probable result, it is murder. It is culpable
homicide if the bodily injury intended to be inflicted is likely to cause death; it is
murder if such injury is sufficient in the ordinary course of nature to cause death.

In Nor Hasnizam bin Ab Latif v. PP [2002] 1 MLJ 154 at 158 the Court of Appeal
held that On the question of intention to kill, it is a matter of inference from the
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nature of the wounds and it is pertinent to refer to the case of Tan Buck Tee v. PP
[1961] MLJ 176 at p 179 where Thomson CJ (as he then was) observed: There
was the body with five appalling wounds on it, wounds penetrating to the heart
and liver, which must have been caused by violent blows with a heavy sharp
instrument like an axe. In the absence of anything else, whoever inflicted those
blows must have intended to kill the person on whom they were inflicted.

Upon being brought to the Kajang Hospital, the victim was firstly treated by SP13.
SP13 was the medical officer that had the initial observation as to the nature of the
wound to the victims abdomen. SP13 had testified that based on his observation,
the wound to the victims abdomen consists of 2 stab wounds that were closely
positioned and deep. The post mortem report (Exhibit P42) and the testimony of
the forensic pathologist, SP16 have established that the fatal injury inflicted on the
victim was to her abdomen wherein the inferior vena cava/the main blood vessel
was punctured. From the testimony of SP16, it is further established that the
puncture to the inferior vena cava is 1.5 cm in diameter which is testament to the
fact that the weapon that was probably used was a sharp and long knife. It is also
established that the injury to the inferior vena cava at the victims abdomen had
resulted in massive blood loss. SP16 had testified that the wound was difficult to
stem and the massive bleeding would ordinarily have caused death by virtue of the
seriousness of the wound. In fact, the victim had died on the operating table a few
hours after being brought to the hospital on 26th of July 2004.

In my judgment, I find no fault regarding the testimony of both the forensic

pathologist, SP16 and the medical officer, SP13. SP16 is a forensic expert with the
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relevant experience in conducting post mortems in 3000 cases as at the date of his
testimony in court. I find that SP16 has the requisite expertise and knowledge to
determine that the victims death was directly resulted from the injury to the
abdomen. As for SP13, he is a medical practitioner of 20 years. I find that SP13 is
competent to testify as to what was observed regarding the nature of the injury to
the victims abdomen. In PP v. Muhamed bin Sulaiman [1982] 2 MLJ 320 at 322
His Lordship Suffian LP (as he then was) in delivering the judgment of the Federal
Court held that As to the question whether or not Mr Lum is an expert, it is true
that this is a preliminary question to be determined, but it is a question upon
which, in practice, considerable laxity prevails. This is because while the expert
must be skilled, he need not be so by special study, he may be so by experience;
and the fact that he has not acquired his knowledge professionally goes merely to
weight and not to admissibility.

Recently, the Court of Appeal had occasioned to deliver a judgment regarding inter
alia expert evidence in Chan Kwee Fong v. PP [2010] 1 MLJ 441 at 460 where it
was held that The reception of expert evidence is governed by s 45 of the
Evidence Act 1950. It sets out the situations in which expert opinion evidence is
admissible. An expert evidence is based on his training and experience. Expert
witnesses have the advantage over lay witnesses by virtue of their particular skill
or training. This enables the experts to form opinions and to draw inferences from
observed facts and it would also enable them to identify facts which may be
obscure or invisible to a lay witness. An expert witness just like a witness of fact
has to give evidence on oath and he may be cross-examined on it. However, the
expert must give evidence of his qualifications so that the court will be able to
consider his opinion evidence.
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In relying on the post mortem report and the testimony of SP16, I am satisfied that
the death of the victim was directly caused by the injury to the inferior vena cava
in her abdomen that was inflicted by the accused. I find that the injury inflicted on
the inferior vena cava is serious and only possible if inflicted with a greater force
than if the victim had been accidentally injured. The depth and nature of the injury
as testified by the forensic pathologist and the medical examiner is evidence that
the injury was intentionally inflicted on the victim by the accused and not as a
result of an accident. The death of the victim was therefore not resulted by any
other reasons such as negligence of the doctors during the operation.

The corroborating evidence as to the intention of the accused to commit murder is

inferred from the acts of the accused as testified by SP4. As I have reiterated in the
above passages, SP4 is a credible witness regarding the events that occurred inside
the victims flat on 26th of July 2004. The accused had locked the victim and
himself in the room while he had held a knife for about 5 10 minutes. This is the
most incriminating fact, apart from the post mortem report and the testimony of the
forensic pathologist, against the accused in establishing that his intention was to
murder the victim. Even during the confrontation with SP4 in the hallway, the
accused had held the knife in his hand. The investigating officer had confirmed that
there was a broken chainsaw piece at the front entrance of the flat to prove that the
accused had broken into the victims flat on 26th of July 2004. Furthermore, SP5
had testified that the accused had run away from the scene of the crime and hid in
some bushes at a nearby river when SP5 with the assistance of SP8 had chased
after the accused. Based on the above reasons, I am satisfied that the prosecution
has proven a prima facie case against the accused on the charge of murder.

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The defence case

The accused has chosen to give evidence from the witness stand. The version of
facts as testified by the accused correlate to the facts as testified by SP4 and SP5
but for a few differences. According to the accused, the victim and he were still
lovers and planning to get married in 2004. SP10 was merely the victims
colleague and not her current lover. A day prior to the fateful day on 25 th of July
2004, the accused was at the Silat Tournament in UKM, Bangi and he had noticed
that the victim was unwell. The accused had attempted to speak to the victim to ask
concerning her well-being but his attempts were in vain. The accused and the
victim did have some problems regarding their relationship but the problem had
stemmed from the fact that the victim wanted to expedite their engagement.

On 26th of July 2004, the accused had tried to call the victim on her cell phone but
his attempts went unanswered. It was due to worry over the victims health that
prompted the accused to drive over in his motorcycle to her flat. The first attempt
to enter the victims flat was done by using a duplicate key that the victim had
given the accused. The accused discovered the grille door lock had been changed
thus he decided to cut the lock using a chainsaw that he had brought with him.
Once inside the flat, the accused had found the victim resting in her bedroom. After
prodding the victim to go to the hospital, the victim had arisen to get ready. The
accused had closed and locked the front door and had waited for the victim to get
dressed to go to the hospital. After almost 1 hour, the victim was ready and the
accused was assisting her out the front door when he had heard noises from the
kitchen area.

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The accused had walked into the kitchen and he had seen a hand from outside the
window. The accused had grabbed a knife from the kitchen and walked back to the
front hall to where the victim was waiting. It was then that SP4 had appeared from
the kitchen area and prevented the accused and the victim from leaving the flat. All
three had remained in the hall for almost half an hour discussing about the incident
whereby the accused had confronted the former at his house and in the presence of
his wife regarding the relationship between the victim and SP4. The accused and
SP4 had quarreled. The victim was holding onto the arm of the accused throughout
the quarrel with SP4. The accused and the victim could not leave the flat because
SP4 had re-locked front door. After seeing that SP4 still refused to allow the victim
and the accused to leave the flat, the accused coaxed the victim to go into her
bedroom in order for the accused to settle the matter with SP4.

The victim had refused and the accused then brought her into the room and locked
the door. The accused had locked the bedroom door to ensure that the victim did
not get upset with the quarrel between the accused and SP4. The accused had
carried the knife into the bedroom with the victim and had placed the knife on his
side on the bed. The accused had wanted to leave the bedroom to speak with SP4
but the victim prevented him from doing so. There was a tussle with the accused
trying to leave the bedroom and the victim attempting to stop him. The accused
had taken the knife from the bed and tried to walk out of the room. On his way out
of the room, the victim had grabbed his left arm from behind. The accused had
slipped and they had both fallen to the floor with the accused lying on top of the
victim. The knife which the accused had held in his hand had accidentally stabbed
the victim in her stomach.

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During re-examination, the accused had testified that the victim had grabbed his
arm with such force (despite her being ill on that day as testified by the accused)
that resulted in the victim slipping to the floor and dragging the accused to fall on
top of her. The accused had taken the knife when he had tried to leave the room
because he had feared certain harm from SP4 and the knife was for protection. The
accused had carried the victim and placed her on the bed. The accused had pulled
the knife out of her stomach and had attempted to stem the blood flow by tying a
yellow sash around the victims stomach. During that time, the victims telephone
had begun to ring and the accused had answered the call. He heard a mans voice
asking saying hello but he had replied with apa yang hello before switching off
the telephone.

During cross examination, the accused stated that the victim had been crying since
the quarrel between the accused and SP4 in the hallway. The accused had
attempted to calm the victim down while they were in the room. The victim was
sitting on the bed while the accused was standing beside her. The accused was still
holding the knife in his hand. It was then that the victims telephone had begun to
ring and the accused had angrily answered the call. SP4 had entered the room and
attacked the accused. The accused had fallen onto the bed and SP4 had held both
his arms. During the struggle between the accused and SP4, the victim had gotten
off the bed and walked towards the hall. SP4 had punched the accused and left the
accused locked inside the room. SP5 had appeared and was asked by SP4 to keep
the accused locked inside the room. The accused finally managed to escape from
the bedroom and he had run towards the outer part of the flat where he had seen the
victim being dragged from the flat by SP4. The accused had become angry with the
rough treatment of the victim by SP4 and had run towards them but was prevented
27

by SP5 who had held the grille door in closed. The accused attempted to approach
the victim to see her condition but SP4 had yelled for him to leave the premises.
The accused left after the third directive from SP4. On the way down to his parked
motorcycle, the accused had met with the victims roommate, SP7 whom he had
exchanged a few words with (kami cuma bertukar pandangan). The accused did
not tell SP7 about the stabbing.

The accused had wanted to follow SP4s car to the hospital but he had run away
when he was chased by some men. The accused had run away because he had
panicked about the incident. He was worried about the victim. He did not know
what to do. He had run towards a nearby river where he had hid in some bushes for
half an hour. The accused had left the bushes after he was certain that he was no
longer being chased. After leaving the river, the accused had contacted his brother
that had brought him to the hospital. The brother of the accused had told him to
remain in the car at the hospital parking lot. The accused acquiesced until his
brother had brought the police to arrest him.

The argument of the defence counsel

The defence counsel had argued essentially that the accused did not have the
intention to murder the victim. In arriving at this line of argument, the defence
counsel relied on several contentions. It was SP4 and not the accused that had
initially acted in an aggressive manner. The quarrel between the accused and SP4
was at the instance of the latter. The actual events that transpired in the victims
room were unobserved by any other persons. It was only the accused and the
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victim who were in the bedroom. The stabbing of the victim occurred in the spur of
the moment. There wasnt any preparatory step or premeditation to commit
murder. Even the knife that was used was taken from the victims kitchen.

The argument of the deputy public prosecutor

In brief, that the entire defence case of the accused is an afterthought and a bare
denial. The facts relied on by the prosecution in countering the defence case inter
alia are as follows. The accused had held the knife and run away from the scene of
the crime upon being chased. The accused had not accompanied the victim to the
hospital. The inconsistency in stating that there was no problem between the
accused and the victim then changing the fact that there was a problem due to third
party interference. The fact that the accused had parked his motorcycle at the flat
opposite the victims flat in order to avoid detection. The fact that the accused had
gone to the victims flat carrying a chainsaw and a knife. The fact that the victim
had sustained two stab wounds to the abdomen is against the accused version that
the accused had accidentally stabbed the victim when he fell on top of the victim.
The victims roommate, SP7 testified that she did not speak to the accused when
the accused was running away from the flat. The unreasonable explanation that
despite being well versed in the martial art of silat, the accused still required a
knife to protect himself from the alleged harm posed by SP4.

Findings of the court at the end of the defence case

The question that the court has to ask itself is whether the defence has raised a
reasonable doubt against the prosecution case for the charge of murder on the
29

accused. The accused has rendered a testimony that is aimed at convincing the
court that although he had stabbed the victim, there was not any intention to
murder.

The accused has admitted that his entry into the victims flat on 26 th of July 2004
was uninvited and initiated by breaking an entry by cutting on the grille door lock
with a chainsaw. The said chainsaw had belonged to the accused which he had
brought with him on his motorcycle. It is incredible that he should have ordinarily
brought the chainsaw on his motorcycle if his intention in going over to the
victims flat was merely to check up on the victim and to make sure that she was
all right. If the contention that the victim and the accused were still lovers in 2004
was to be accepted, it is improbable that during the silat tournament on 25th of July
2004, the victim would have avoided and ignored the accused. It is also improbable
that the accused could not have personally approached the victim and inquired
about her health on 25th of July 2004 rather than make inquiries through her friends
if the contention that they were still lovers is to be accepted as true. This is further
culminated by the testimony of the accused that the victim was of a personality that
any inquiries regarding her person should be made directly to her. As such, the
inference is that the relationship between the accused and the victim had already
soured by 2004 and culminated further by the fact that the victim had started a new
relationship with SP10.

The accused had parked his motorcycle at the parking lot at the opposite flat to that
of the victims flat. The only inference from this fact that the court is able to make
is that the accused did not want to be detected by any potential witness. The
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accused stated that he had taken a knife from the kitchen of the flat when he had
seen a hand trying to open the rear door from outside of the kitchen window. It
may be accepted as reasonable that the knife was for protection against unknown
intruders at the time that the hand was seen from outside the kitchen window.
However, there is no reasonable explanation to justify the fact that the accused still
held onto the knife when he had discovered that the intruder was SP4 whom he had
known for some years. The accused stated that SP4 had prevented the victim and
him from leaving the flat by locking the front door and forcing them to relieve old
history between them for almost 1 hour in the hallway. In cross examination, the
accused had given a different version allegedly that he had feared physical threat
from SP4 therefore he had continued to hold the knife for protection. The court is
unable to accept this testimony of the accused. There was no physical threat from
SP4. SP4 was unarmed. The accused had testified that he had a high level of
expertise in the martial art of silat. The accused could have easily overpowered
SP4 and left the flat with the victim.

The accused stated that he had coaxed the victim to enter her bedroom in order for
the argument to be settled between SP4 and the accused out in the hallway. The
accused had followed the victim into her bedroom only when the victim showed
reluctance to comply with his request. The accused stated that he had brought the
knife when he had followed the victim into the bedroom for the purpose of
protecting against the alleged harm posed by SP4. I have stated my reasons in
finding that SP4 did not pose any physical threat to either the accused or the victim
on 26th of July 2004. The accused did not have any reasonable excuse to have
brought the knife into the bedroom. If it is to be accepted that his intention in
following the victim into the bedroom was merely to assuage her crying, the
31

accused did not require a knife for such a purpose. Furthermore, the bedroom door
was locked with only the accused and the victim occupying the bedroom. The
victim did not make any loud noises from inside the bedroom (this is testified by
SP4 that he did not hear any noises from inside for the span of 5 -10 minutes
before he entered the bedroom) as she was most likely terrified for her life. The
accused had broken into her flat. The accused was holding a knife throughout the
ordeal. The accused had locked her in the bedroom with him and the knife. She
was most probably crying but not for the reason as stated by the accused but
because she was afraid of being hurt. The accused did run away from the scene of
the crime despite his contentions of loving and deeply caring for the victim. After
he had stabbed the victim, the victims phone had begun to ring. The accused had
answered the call but rather than informing the caller (who was SP5) to call for an
ambulance, the accused had rudely shut off the phone. It is pertinent to note that
despite his allegation that SP4 had posed a threat to him and the victim on the
fateful day, the accused had readily allowed the victim to be sent to the hospital by
SP4. The accused had even acquiesced with the order of SP4 and left the vicinity
of the flat. This is incredible in light of the allegation that SP4 was a threat to the
safety of the accused on that day. If he did not intend to murder the victim, there
was no fear of being caught by SP5 and SP8 who were chasing the accused. The
accused could have handed the knife over to either SP4 or SP5 and accompanied
SP4 in bringing the victim to the hospital.

As for the stabbing of the victim being an accident, the court finds the entire
version narrated by the accused as a fictional story. This fictional story is easily
countered by the post mortem report including the testimony of the forensic
pathologist and the medical officer that the nature of the injury was fatal and was
32

intentionally inflicted using a sharp and long knife. It is incredible that the victim
who was supposedly unwell on 26th of July 2004 could have the strength to grab
the arm of the accused, caused both of them to fall to the floor and resulted in the
accidental stabbing of the victim. The medical officer, who had first attended to the
victim (SP13), has confirmed that there were 2 stab wounds. An accidental fall and
accidental stabbing could not have possibly resulted in 2 stab wounds on the
victims abdomen. As I have stated in my analysis at the end of the prosecution
case, the injury inflicted on the victim was by using a great force that had
punctured deeply into her abdomen until it had caused injury to the main blood
stream. The fatal injury was not due to any accident. In Mohamed Yasin bin Hussin
v. PP [1976] 1 MLJ 156 at 157, Lord Diplock in delivering the judgment of the
Privy Council held that The lacuna in the prosecutions case which the trial
judges overlooked was the need to show that, when the accused sat forcibly on the
victims chest in order to subdue her struggles, he intended to inflict upon her the
kind of bodily injury which, as a matter of scientific fact, was sufficiently grave to
cause the death of a normal human being of the victims apparent age and build
even though he himself may not have had sufficient medical knowledge to be aware
that its gravity was such as to make it likely to prove fatal.

I am in agreement with the argument of the deputy public prosecutor that the
testimony of the accused in his defence is an afterthought and a bare denial. I find,
after considering the testimony of the accused and balancing it with the evidence of
the prosecution, that the accused had the intention to murder the victim within the
provision of Section 300(a) of the Penal Code.

33

Conclusion
Based on the above reasons, the court finds that the accused has not raised any
reasonable doubt on the prosecution case against him. The prosecution has
therefore established the case on the charge of murder against the accused beyond
any reasonable doubt. The accused is therefore convicted on the charge proffered
against him and is sentenced with hanging by the neck until death.

Dated 26th of January 2010

YA Tuan Haji Mohd Yazid b. Hj.Mustafa

Pesuruhjaya Kehakiman
Mahkamah TInggi Shah Alam (Jenayah 4)

Pendakwa Raya
Kamar Peguam Negara
Aras 5, No. 45 Lot 4G7 Presint 4
Persiaran Perdana, 62100
Putrajaya

Tetuan Elida, Imran & Partners

Peguambela & Peguamcara
No. 39A 1st Floor, Jalan Raja Haroun
43000 Kajang.
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