09 – 54 –2004 antara khairuddin bin mohd yusuf

DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANGKUASA RAYUAN)
RAYUAN JENAYAH NO. W – 09 – 54 –2004
ANTARA
KHAIRUDDIN BIN MOHD YUSUF … PERAYU
DAN
PUBLIC PROSECUTOR … RESPONDEN
(Di dalam Perkara Mahkamah Tinggi Kuala Lumpur
No. WPRJ 42–8–1997
Di Antara
Khairuddin bin Mohd Yusuf
Dan
Public Prosecutor)
Coram: Gopal Sri Ram, J.C.A.
Tengku Baharudin Shah bin Tengku Mahmud, J.C.A.
James Foong Cheng Yuen, J.C.A.
Introduction
DISSENTING JUDGMENT OF GOPAL SRI RAM, J.C.A.
1. The appellant – I shall refer to him as the accused – was
convicted of the offence of culpable homicide not amounting to
murder under the first limb of section 304 of the Penal Code and
sentenced to 18 years imprisonment. His appeal to the High Court
was dismissed. He appealed to this Court and at the conclusion of
arguments his appeal was dismissed by a majority decision. For
reasons that will become apparent later in this judgment, I consider it
my duty to enter my most vigorous dissent upon the result in this

case.
The case against the accused
2
2. The nub of the prosecution’s case against the accused was that
on 19 April 1995, between 7.45 p.m. and 9.00 p.m. he intentionally
caused the death of one Rabeah bte Abdul Hamid (whom I shall refer
to as “the deceased”) at a room in Wenworth Hotel, at Jalan Yew,
Kuala Lumpur. The charge goes on to specify that the accused
caused the deceased’s death by strangling her with the strap of her
handbag. It was therefore imperative for the prosecution to prove –
at the end of the whole case – that the accused was present in the
room at or about the material time.
3. The evidence of circumstances adduced by the prosecution put
at its highest disclosed the following points against the accused:
(i) At about 9.00 a.m. on 19 April 1995, the
deceased was seen by members of her family,
namely, her husband, PW5, her son PW6 and her
daughter PW12. They testified that she had a
Rolex watch, some jewellery and cash of
RM21,000 on her person. According to them, the
jewellery was of sentimental value to the
deceased. They said that she would therefore not
readily part with them.
(ii) The deceased was seen in the accused’s
company, in the afternoon of the day in question.
This was at about 4.00 p.m. at the Arab Malaysian

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Bank building along Jalan Raja Chulan. That is
the evidence of PW13. The deceased ran a
cafeteria at the building in question which the
accused used to frequent.
(iii) The accused was constantly in a financially
straitened position.
(iv) The accused had pawned the watch and
jewellery in question with PW17 late on the night of
19 April 1995.
(v) The deceased’s body was discovered on the
night of 20 April 1995. An examination of the
room revealed head and pubic hairs. These were
sent to the Chemist (PW22). He compared them
with samples taken from the accused. The
comparison was only visual, under a microscope.
No DNA tests for comparison were done. PW22
concluded from his mere visual examination that
the hairs recovered at the scene were 75%
physically similar to those taken from the person of
the accused.
4. Based on the foregoing circumstantial evidence the prosecution
invited the sessions court to convict the accused. As I have already
said, that invitation was accepted and the verdict at trial was affirmed
as correct by the High Court. In my respectful view there are two
main reasons why the conviction of the accused is unsafe and ought
to be quashed. First, the totality of the evidence led by the

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prosecution, taken together with the evidence in the accused’s favour
do not warrant an inference of guilt. Second, there was such a long
delay in the production of the grounds of judgment by the sessions
judge that resulted in an injustice to the accused. I will deal with
each of these in turn.
The failure to prove guilt
5. I begin this part of the case by reminding myself that there is no
added burden on the prosecution when it seeks to establish its case
based on evidence of circumstances. See, Juraimi bin Husin v
Public Prosecutor [1998] 1 MLJ 537. The position is the same as
when it relies on direct evidence. It must, at the close of the whole
case prove the accused’s guilt beyond a reasonable doubt. The
danger – if it be a danger at all – of circumstantial evidence is that
unlike direct evidence, it turns on the proper interpretation to be given
to facts appearing in a set of circumstances. Where the result of the
interpretation is the conviction of a person of a criminal offence, the
interpretation must be such that it leaves no reasonable doubt in the
mind of the court as to the guilt of an individual. The interpretation
that is to be given to a set of circumstances is what lawyers refer to
as “the drawing of an inference from proved or admitted facts”.
6. In Sundram v Arujunan [1994] 3 MLJ 361, Edgar Joseph SCJ
when delivering the majority judgment of the Supreme Court applied
Lord Wright’s explanation in Caswell v Powell Duffryn Associated
Collieries Ltd [1940] AC 152 of what a reasonable inference is in the
sense used by Lord Macmillan in Jones v Great Western Railway
(1930) 144 LT 194:

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“Inference must be carefully distinguished from
conjecture or speculation. There can be no
inference unless there are objective facts from
which to infer the other facts which it is sought to
establish. In some cases the other facts can be
inferred with as much practical certainty as if they
had actually been observed. In other cases the
inference does not go beyond reasonable
probability. But if there are no positive proved
facts from which the inference can be made, the
method of inference fails and what is left is mere
speculation or conjecture.”
7. In Jones v Dunkel (1959) 101 CLR 298, Kitto J said more or
less the same thing in slightly different words:
“One does not pass from the realm of conjecture
into the realm of inference until some fact is found
which positively suggests, that is to say provides a
reason, special to the particular case under
consideration, for thinking it likely that in that actual
case a specific event happened or a specific state
of affairs existed.”
8. On the evidence adduced by the prosecution, two
circumstances appear most damming of the accused. First, the
finding at the scene of head and pubic hairs allegedly from the
accused. Second, proof of accused’s possession of the deceased’s
watch and jewellery which he pawned to PW17. So far as the first is

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concerned, I have employed the expression “allegedly from the
accused” advisedly because the evidence of the chemist on the point
falls short of establishing beyond a reasonable doubt that the hairs in
question belong to the accused. Such proof would have been
forthcoming is the samples had been subjected to DNA testing. But
that did not happen here. Let me quote from the evidence of the
chemist (PW22) under cross examination:
“I cannot be definite in saying whether by this
examination that a particular hair belonged to that
particular person. I can only say that it is similar
to that person’s hair. Yes, I did laboratory
examination of the hairs which include microscopic
examination.
Put: In laboratory examination which includes
microscopic examination of hair it may be possible
to say that it cannot belong to a particular
individual but it cannot be opined whether that hair
particularly belongs to him/her?
A: In my examination it can rule out persons
who have completely different characteristics. But
on the other hand persons with similar characters
could be included and therefore I said could be
similar. I must clarify that I said ‘similar’ and not
‘same’, which mean one or more persons of the
same group possessing similar characteristics.”
I now quote from his re-examination:

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Q: How probable would it be that the hair found
at the scene of the crime matches with the
accused’s hair?
A: I would say that it would depend on the
characteristics that match and since about 75% of
the characteristics match therefore it is 75% likely
that the sample hair came from the specimen hair.”
9. In my judgment the evidence of the chemist does not meet the
level of proof called for by the law. It does not establish the fact that
the hairs found at the scene of the crime were in fact those of the
accused. In the absence of such a fact, it is mere conjecture that the
accused was in the room in question. And I think it relevant in this
context to quote the following passage from Field on Expert
Evidence (4 th edn) p. 278:
“While conducting the autopsy doctor had found
some hair-sticking to the hand of the deceased
which had been collected by him and kept in two
packets and the same doctor had also collected
hairs from the head of the accused when he
examined him on 6 th January, 1979, and the report
of the Chemical Examiner was that on microscopic
examination where it is noticed that the hairs
sticking to the hand of the deceased and collected
from the head of the accused might be of similar
origin, the report of the Chemical Examiner is not
conclusive. In Modi's Medical Jurisprudence and

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Toxicology, Twentieth Edition, page 107, it has
been stated that by laboratory examination of
hairs, it would be possible to say that it cannot
belong to a particular individual, but it cannot be
opined whether it definitely belong to him.”
10. There is another point about the chemist’s evidence that is in
the accused’s favour. It is this. Nowhere in his evidence did the
chemist allude to the kind of tests he carried out on the hairs before
arriving at his conclusion of similarity. This made it unsafe for the
sessions judge to rely on PW22’s evidence. In Himangshu Pahari v
State (1986) Cri. LJ 622, the accused were charged for robbery and
murder. Part of the evidence against the accused was that hairs
were found at the scene were morphologically to the sample hairs
taken from the person of the accused. The accused was convicted
and appealed. In the course of delivering the judgment of the High
Court of Calcutta Sankar Battacharyya J made the following
observation:
“After the appellant was taken into police custody
the Investigating Officer took samples of his scalp
hairs by combing and sent the hairs to the
Forensic Science Laboratory for comparison with
the hairs found in the deceased’s palm and at
other places inside the flat On examination and
comparison by the Senior Scientific Officer (P.W.
18) the hairs found adhering to the blade- of the
Rampuria knife seized from the deceased’s flat

9
were, found morphologically to be similar to the
sample hairs of the appellant (report – Ext. 15).
Though the learned trial Judge accepted the report
of the Senior Scientific Officer, on scrutiny of his
evidence, we-consider it unsafe to act upon the
report It has been elicited in his cross-
examination that he did not measure the diameters
of the shafts of the hairs or their length did not take
impression of the cuticles of the hairs, did not, note
the shapes, appearance and the colours of the
hairs or the directions of the pointing out of the
hairs. The science of comparison of hairs has
not yet reached perfection like the science of
comparison of finger prints. Where therefore
all the tests were not meticulously carried our,
it would be unsafe to rely upon the report. We
therefore, leave out of our consideration the report
of the Senior Scientific Officer (Ext. 15).”
[Emphasis added].
11. No doubt, in Himangshu Pahari v State, the insufficiency of
proper examination was elicited under cross examination. But that
does not make an iota difference. At the end of the day it is for the
prosecution to prove its case beyond a reasonable doubt. The
prosecution is not entitled to rely on inadequacies in the conduct of
the defence to support a conviction that is patently unsafe. So here
the sessions court ought to have taken into account this important

10
fact operating in the accused’s favour. The failure on its part to do
so has occasioned a miscarriage of justice.
12. Next, there is the pawning of the watch and jewellery. By itself
it is not proof that the accused committed the crime. But that fact
does not stand by itself. There is the accused’s evidence explaining
how he came to be in possession of the items in question. He said
that he had received financial help from the deceased on previous
occasions. That is not an improbable statement given the fact that
members of the deceased’s family who gave evidence confirmed that
the deceased had helped her friends and members of her family.
When the evidence is read in its totality I am unable to avoid the
irresistible conclusion that the deceased had very strong feelings for
the accused. They met frequently. The accused was no stranger to
the deceased’s children. There was therefore no evidential basis to
support the conclusion that the accused committed the crime with
which he was charged.
13. As far as the law is concerned, I need only refer to three
authorities. In Bhikha Gober v Emperor AIR 1943 Bom 458, Sir
John Beaumont CJ said:
“In the present case in the absence of eye
witnesses we have no evidence whatever to
connect the accused with the murder. It is
obvious that somebody else might have committed
the murder, and the accused might .have acquired
the ornaments from that person; or he might have
robbed the deceased, and somebody might have

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subsequently murdered her. The mere fact that
he produced, shortly after the murder,
ornaments which were on the murdered
woman is not enough, in my opinion, to justify
an inference that the accused must have
committed the murder.” [Emphasis added].
14. In In re Thangaswamy AIR 1963 Mad 476, the accused was
charged with the murder of one Nacharammal, the deceased. It was
in evidence that the accused and the deceased were known to each
other and that a few hours after her death the accused had attempted
to sell her jewels. The accused was convicted of murder and
appealed. The High Court quashed the conviction.
Anantanarayanan J delivering the judgment of the court said:
“We are therefore of the opinion that the analysis
of the evidence in this case amounts to this. As a
person who was acquainted with the deceased,
and who had knowledge that she habitually wore
certain jewels, the accused had a possible
opportunity and motive to commit the crimes of
robbery and murder. But there is absolutely
nothing to connect the movements of the accused
with those of the victim, either that morning or after
the crime.”
Here too, there is not a shred of evidence to show that the accused
entered the hotel in the company of the deceased or was seen
entering the room in which her body was discovered. To

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recapitulate, it is the evidence of the prosecution that the deceased
was alone when she checked into the hotel.
15. Lastly, in Sanwat Khan v State of Rajasthan AIR 1956 SC 54,
Mahajan J said:
“Here, there is no evidence, direct or
circumstantial, that the robbery and murder formed
parts of one transaction. It is not even known at
what time of the night these events took place. It
was only late next morning that it was discovered
that the Mahant and Ganpatia had been murdered
and looted. In our judgment, Beaumont, C. J.,
and Sen J. in Bhikha Gober v Emperor, AIR 1943
Bom 458 (B) rightly held that the mere fact that an
accused produced shortly after the murder
ornaments which were on the murdered person is
not enough to justify the inference that the accused
must have committed the murder.
There must be some further material to connect to
accused with the murder in order to hold him guilty
of that offence. Our attention was drawn to a
number of decisions which have been summed up
in a Bench decision of the Allahabad High Court in
State v. Shankar Prasad AIR 1952 All 776(C), in
some of which a presumption was drawn of guilt
from the circumstance of possession of stolen
articles soon after a murder. We have examined

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these cases and it appears to us that each one of
these decisions was given on the evidence and
circumstances established in that particular case
and no general proposition of law can be deduced
from them.
In our judgment no hard and fast rule can be laid
down as to what inference should be drawn from a
certain circumstance. Where, however, the only
evidence against an accused person is the
recovery of stolen property and although the
circumstances may indicate that the theft and
the murder must have been committed at the
same time it is not safe to draw the inference
that the person in possession of the stolen
property was the murderer. Suspicion cannot
take the place of proof. [Emphasis added.]
16. Quite apart from what I have discussed thus far, there are other
facts in the accused’s favour. There is, in the first place, the fact that
there were injuries on the deceased’s arm. The suggestion that was
being made was that an item of jewellery had been forcible removed
from the deceased. But no skin or tissue of the deceased was found
under the nails of the accused’s fingers. In the second place, no
witness gave evidence that he or she had seen the accused at the
hotel or in its vicinity. In the third place, there was some evidence
from within the prosecution case itself that the accused had been with
PW17 at or about the time the deceased was killed. The prosecution

14
tried to explain this away by contending that PW17 did not give
precise evidence establishing an alibi in the accused’s favour. But
the point missed is that this is the very witness whose evidence it was
the prosecution was relying on to establish that the accused had had
in his possession the deceased’s jewellery and watch after the killing
had taken place.
17. Now, you cannot have that. Because it is blowing hot and
cold. It cannot be that PW17 was correct when he gave the
approximate time at which the accused pawned the watch and
jewellery but could not be relied upon at the same time as to the other
fact, namely that the accused was with him during the time frame
when the deceased was killed. He was obviously a witness of truth
and put forward by the prosecution as such. He was a disinterested
witness as a plain reading of his evidence reveals. He made no
attempt to varnish the truth. His evidence shows no leaning or bias
in the accused’s favour. The sessions court ought to have read his
evidence in its proper context and given due consideration to the
doubt reasonably raised by it as to the identity of the accused as the
person who committed the crime. Thus, an inherent weakness in the
prosecution’s case went unnoticed in both courts below thereby
resulting in a miscarriage of justice.
18. It follows that none of the facts bearing heavily in the accused’s
favour were ever considered by the trial court. This is a non-
direction amounting to a serious misdirection. It is clear that in the
present instance there was no proper evaluation of the evidence by
the sessions judge. Evaluation of evidence is not confined to a

15
consideration of the evidence against an accused; it includes
evidence that is favourable to him as well. This was not done. In
my judgment the sessions judge erred in the handling of the facts. It
is a well established principle that an error by the trial court in the
handling of the facts is a ground for appellate intervention. See,
Alcontara v Public Prosecutor [1996] 1 MLJ 209; Chow Kok
Keong v Public Prosecutor [1998] 2 MLJ 337. This aspect of the
case was, with respect, overlooked by the High Court at the
intermediate appeal. This Court cannot let such a state of affairs
pass. It amounts to a failure of justice. And justice is, of course,
justice according to the law.
19. As Hegde J. said in Krishna Murthy v Abdul Subban [1965] 1
Cr LJ 565, 576:
“One of the contents of natural justice, which is so
much valued, is the guarantee of a fair trial to an
accused person. A fair trial is as important as a
just decision. Neither the one nor the other can
be sacrificed. Sacrifice of the one, in the
generality of cases, is bound to lead to the
sacrifice of the other. The two are closely
interlinked.”
20. When this Court hears a criminal appeal, the question that we
have to ask ourselves is this. Has the appellant on the given facts of
a particular case lost a chance fairly open to him to be acquitted
because of a misdirection on the substantive or procedural law or an
error in the handling of the facts by the trial court? If that question

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receives an affirmative answer, then there has been occasioned a
miscarriage of justice. To quote Fullagar J in Mraz v the Queen
(1955) 93 CLR 493, 514:
“[E]very accused person is entitled to a trial in
which the relevant law is correctly explained to the
jury and the rules of procedure and evidence are
strictly followed. If there is any failure in any of
these respects, and the appellant may thereby
have lost a chance which was fairly open to him of
being acquitted, there is, in the eye of the law, a
miscarriage of justice. Justice has miscarried in
such cases, because the appellant has not had
what the law says that he shall have, and justice is
justice according to law. It is for the Crown to
make it clear that there is no real possibility that
justice has miscarried.”
It is to be noted that the above quoted authorities were applied by a
Full Bench of the Federal Court in Tunde Apatira & Ors v Public
Prosecutor [2001] 1 MLJ 259.
21. I now return to consider the totality of the circumstances and
see if they satisfy Lord Wright’s test in Caswell v Powell Duffryn. I
must say after due consideration that they do not. At best they raise
a suspicion against the accused. But suspicion however strong can
never take the place of proof. And as Doraiswamy Raju J said on
behalf of the Supreme Court of India in Ashish Batham v State of
Madhya Pradesh AIR 2002 SC 3206:

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“Realities or truth apart, the fundamental and basic
presumption in the administration of criminal law
and justice delivery system is the innocence of the
alleged accused and till the charges are proved
beyond reasonable doubt on the basis of clear,
cogent, credible or unimpeachable evidence, the
question of indicting or punishing an accused does
not arise, merely carried away by heinous nature
of the crime or the gruesome manner in which it
was found to have been committed. Mere
suspicion, however, strong or probable it may
be is no effective substitute for the legal proof
required to substantiate the charge of
commission of a crime and graver the charge
is greater should be the standard of proof
required. Courts dealing with criminal cases at
least should constantly remember that there is a
long mental distance between may be true and
must be true and this basic and golden rule only
helps to maintain the vital distinction between
conjectures and sure conclusions to be arrived at
one the touch stone of a dispassionate judicial
scrutiny based upon a complete and
comprehensive appreciation of all features of the
case as well as quality and credibility of the
evidence brought on record.” [Emphasis added].

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Reading this passage again, I find its appropriateness to the present
case to be apposite.
22. It is with these matters in mind that I asked the learned Deputy
who appeared before us whether she considered there was sufficient
evidence to support the conviction in this case. She very properly
and entirely in keeping with well established tradition agreed that
there was none. She is to be commended for her forthrightness. It
is a refreshing change from the usual course of things which has
been my experience in this court when counsel, whether they be from
the chambers of the Public Prosecutor or the general Bar seek to
defend the indefensible. In the light of the very important and honest
response from the learned deputy, I find it impossible to support a
decision to dismiss the appeal. Such a course, in my view, strikes at
the very heart of the criminal justice system.
The delay point
23. In order to understand my reasons under this head, a recital of
some of the chronology is called for.
24. The accused was first produced and charged in court as long
ago as 5 June 1995. His trial began very soon thereafter, on 7
December 1995. The trial concluded with the accused being
convicted on 27 February 1997. The sessions court’s grounds of
judgment were made available on 22 January 2002. So, all in all it
took the best part of 6 years for this case to conclude in the sessions
court. I say “conclude” because there is no conclusion of a trial until
a written judgment giving the reasons for the court’s decision is given
in accordance with statute. As Ismail Khan J (later CJ Borneo) said

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in Balasingham v Public Prosecutor [1959] MLJ 193, when
referring to a case tried by the sessions court:
“The trial Court is under a statutory obligation
under section 308 of the Criminal Procedure Code
to transmit to the Appellate Court the grounds of
decision which convey to my mind a reasoned
judgment on the facts and the law not merely the
conclusion arrived at. The advantage of a
“speaking” judgment needs no emphasis.”
25. Now, although our Constitution does not expressly guarantee
the right to a speedy trial, such a right has indeed been read into the
supreme law by our courts. In Ooi Ah Phua v Officer-in-Charge,
Criminal Investigations Kedah/Perlis [1975] 1 MLJ 93, Hashim
Yeop A Sani J, when construing Article 5 of the Constitution read
such a right into that Article. He said:
“A speedy trial is certainly an unwritten right of
every person accused of an offence.”
On appeal, the Federal Court affirmed his decision. See, Ooi Ah
Phua v Officer-in-Charge, Criminal Investigations Kedah/Perlis
[1975] 2 MLJ 198. In particular, Suffian LP who delivered the
judgment of the court expressly approved of the learned judge’s
above quoted view.
26. In my judgment, a failure by our justice system to speedily and
effectively deliver justice to a litigant constitutes an infringement of
the equal protection clause in Article 8(1) of the Constitution. When

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considering the speed of the delivery of justice by the justice system
our focus should be on the quality of the justice provided rather than
the reasonableness of the State’s efforts to provide it. Further, a
distinction must be drawn between cases where there has been a
delay in the delivery of judgment and a delay in affording a hearing.
In the former, the delay must be of such a nature as to render the
conviction unsafe in criminal case.
27. These propositions emerge from two recent decisions of the
Judicial Committee of the Privy Council. The first is Boodhoo v
Attorney General of Trinidad and Tobago [2004] UKPC 17, where
Lord Carswell said:
“Their Lordships would observe, however, that
whereas the question of the resources of the state
may be material when deciding if a delay was
unreasonable, when one is considering the issue
of protection of the law under a provision such as
section 4(b) (see, eg, Mungroo v The Queen
[1991] 1 WLR 1351), the focus of the court
should be on the quality of justice provided
rather than the reasonableness of the state’s
efforts to provide it. [Emphasis added].
28. He then made this observation:
“It is hardly necessary to say that different
considerations apply to cases of delay in giving
judgment from those concerned in cases of delay
in affording a hearing. In the latter type of case

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the evidence which is to be adduced may no
longer be reliable or the testimony of essential
witnesses may not be obtainable. In the former,
of which Goose v Wilson Sandford & Co, (The
Times, 19 February 1998) provides an example,
delay may have so adversely affected the quality
of the decision that it cannot be allowed to stand.
It may be established that the judge's ability to deal
properly with the issues has been compromised by
the passage of time, for example if his recollection
of important matters is no longer sufficiently clear
or notes have been mislaid. These are, however,
extreme cases, ordinarily associated with
inordinately long periods of delay.”
29. In a later passage Lord Carswell added this important rider:
“In their Lordships’ opinion delay in producing a
judgment would be capable of depriving an
individual of his right to the protection of the law,
as provided for in section 4(b) of the Constitution of
Trinidad and Tobago, but only in circumstances
where by reason thereof the judge could no longer
produce a proper judgment or the parties were
unable to obtain from the decision the benefit
which they should. For example, on an
application to prevent the threatened abduction of
a child, any delay in giving judgment might deprive

22
both the applicant and the child of the benefit
which the legal remedy was there to provide.
Their Lordships do not think it profitable to attempt
to define more precisely the circumstances in
which this may occur or to specify periods of delay
which may bring about such a result, since cases
vary infinitely and each has to be considered on its
merits, applying this principle.”
30. You will see the reference in the foregoing passage to section
4(b) of the Constitution of Trinidad and Tobago. For completeness,
the material part of that subsection reads as follows:
“4. It is hereby recognised and declared that in
Trinidad and Tobago there have existed and shall
to continue to exist without discrimination by
reason of race, origin, colour, religion or sex, the
following fundamental human rights and freedoms,
namely:-
(b) the right of the individual to equality
before the law and the protection of the
law.”
The striking similarity between section 4(b) and Article 8(1) of our
Constitution is to be noted. Any dissimilarity in language between
the two provisions is a distinction without a difference. Since the
equal protection clause in the Constitution of Trinidad and Tobago
admits of an implied right to a speedy trial it is difficult to reason why
Article 8(1) of our Constitution should not also do so.

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31. The second case is Campbell v Hamlet [2005] UKPC 19.
That was also an appeal from Trinidad & Tobago. It concerned a
case involving disciplinary proceedings against an Attorney at Law.
The Attorneys at Law Disciplinary Committee had taken 8 years to
deliver its judgment. The Board of the Privy Council described the 8
year delay as “highly reprehensible, indeed unforgivable”. But it
refused to interfere because the delay had had no adverse effect
upon the appellant. Any injustice had been suffered by the
complainant who had died before judgment. Lord Brown of Eaton-
under-Heywood who delivered the Advice of the Board said:
“As for the argument that the Committee's delay
adversely affected their determination, there is
nothing in this point either. There are, of course,
cases where such an argument should properly
succeed. Goose v Wilson, Sandford & Co, The
Times [19 February 1998] (Court of Appeal (Civil
Division) transcript no. 196 of 1998) was one such.
As Lord Carswell explained in giving the Board’s
judgment in Boodhoo v Attorney General of
Trinidad and Tobago [2004] 1 WLR 1689, 1694,
Goose provides an example of where:
‘Delay may have so adversely affected the
quality of the decision that it cannot be
allowed to stand. It may be established
that the judge’s ability to deal properly with
the issues has been compromised by the

24
passage of time, for example if his
recollection of important matters is no
longer sufficiently clear or notes have been
mislaid.’ (para 11).
The present case, however, is very different from
Goose on the facts. The delay here was, of
course, considerably longer. But whereas in
Goose the judge’s ability to decide the case was
clearly compromised, here it was not. Here the
Committee had the full transcripts of all the
evidence and it was well able to provide a
reasoned decision in reliance upon them. What is
striking, indeed, is that only two criticisms are
made of the Committee’s reasoning (or lack of it)
and that each of these turns entirely upon reading
the Committee’s judgment in the light of the
transcript. In other words, even if the criticisms
were soundly based, they would not be explicable
by reference to the delay.”
32. That brings me to the case of Goose v Wilson, Sandford & Co
[1998] EWCA Civ 245. That was a case where the trial judge had
delayed 20 months in giving judgment in a civil matter. The Court of
Appeal held that the delay had prejudiced a fair trial of the case and
therefore ordered a re-trial. Peter Gibson LJ who delivered the
judgment of the court to which the other members of the panel had
contributed said:

25
“A judge’s tardiness in completing his judicial task
after a trial is over denies justice to the winning
party during the period of the delay. It also
undermines the loser’s confidence in the
correctness of the decision when it is eventually
delivered. Litigation causes quite enough stress,
as it is, for people to have to endure while a trial is
going on. Compelling them to await judgment for
an indefinitely extended period after the trial is over
will only serve to prolong their anxiety, and may
well increase it. Conduct like this weakens public
confidence in the whole judicial process. Left
unchecked it would be ultimately subversive of the
rule of law. Delays on this scale cannot and will
not be tolerated. A situation like this must never
occur again.
ll3. Because of the delay in giving judgment, it has
been incumbent on us to look with especial care at
any finding of fact which is now challenged. In
ordinary circumstances where there is a conflict of
evidence a judge who has seen and heard the
witnesses has an advantage, denied to an
appellate court, which is likely to prove decisive on
an appeal unless it can be shown that he failed to
use, or misused, this advantage. We do not lose
sight of the fact that the judge had transcripts of

26
the evidence, as well as very extensive written
submissions from counsel. But the very fact of the
huge delay in itself weakened the judge’s
advantage, and this consideration had to be taken
into account when we reviewed the material which
was before the judge. In a case as complex as
this, it is not uncommon for a judge to form an
initial impression of the likely result at the end of
the evidence, but when he has come to study the
evidence (both oral and written) and the
submissions he has received with greater care, he
will then go back to consider the effect the
witnesses made on him when they gave evidence
about the matters that are now troubling him. At a
distance of 20 months, Harman J. denied himself
the opportunity of making this further check in any
meaningful way.”
33. It is to be noted that in Goose v Wilson a delay of 20 months in
giving judgment was castigated in harsh terms. In Boodhoo v
Attorney General of Trinidad and Tobago, evidence was put in to
show the logistical problems faced by the justice system in that
jurisdiction in delivering speedy justice. Not dissimilar considerations
may obtain in our jurisdiction. But even taking into account the
conditions peculiar to this country, I must say that the delay of 5 years
in the present case; being one that concerns a very serious charge; is
inexcusable. The accused’s constitutional right to a speedy trial has

27
been infringed. The suffering he has had to endure must be
considerable. The present case is not in the nature of the kind of
case the Privy Council had to deal with in either Boodhoo v
Attorney General of Trinidad and Tobago or Campbell v Hamlet
[2005] UKPC 19. Those were not criminal cases of the present type.
They did not concern either the life or liberty of an individual.
34. I think that in a case such as the present, we should continue to
apply the following observation of Spenser Wilkinson J in Voon Chin
Fatt v Public Prosecutor [1948-1949] MLJ Supp 131, 133:
“The interval between notice of appeal and delivery
of grounds of decision should, in such a case, be a
matter of days, not weeks, much less months.
Indeed there is a very good reason from the
Magistrate’s point of view why grounds of decision
should always be written as promptly as possible.
The sooner, after hearing the witnesses the
grounds of decision are written the clearer in the
mind of the Magistrate who writes them will be all
the details of the evidence, the demeanour of the
witnesses and the general atmosphere of the case.
Where delay occurs, not only have important
details faded from the mind of the Magistrate who
tried the case, but also additional work is involved
as the whole case has to be studied afresh in order
to bring the matter back to mind. In my opinion,
the fact that no time limit is laid down by law for

28
giving grounds of decision increases the
responsibility of Judges and Magistrates to see
that no undue delay occurs and that the spirit of
the law rather than its letter is complied with.”
35. I also think it useful to quote the comment by Gunn Chit Tuan J
(later Chief Justice of Malaya) in TN Nathan v Public Prosecutor
[1978] 1 MLJ 134. He is a judge whose views are entitled to great
respect on any subject but particularly so in the area of the criminal
law. This is what he said:
“In the above-quoted case, the learned District
Judge did not acknowledge the difficulty of
remembering the impression which witnesses had
made upon him, but the appellate court
nevertheless held that the long delay of two years
in delivering the grounds of judgment was
unsatisfactory and had prejudiced the appellant in
the appeal because in writing grounds of
judgment so long after the hearing it is
possible that the learned District Judge may
have omitted to state something in those
grounds which might have been favourable to
the appellant. In the present case, I regret to
note that a summary trial under the provisions of
the Criminal Procedure Code had to take so long
to complete and that the judgment was not signed
until eleven months after conclusion of the trial.

29
Moreover, the further delay of another two years
before receiving the grounds of decision was most
unsatisfactory and has prejudiced the appellant.”
[Emphasis added.]
36. So too here. There is every possibility – and I have
demonstrated this earlier in this judgment – that the sessions judge
omitted to consider points in the evidence that were in the accused’s
favour. The delay in this case has therefore prejudiced the accused
and rendered the conviction unsafe.
Conclusion
37. For the reasons already given, I am of the view that the appeal
ought to have been allowed and the conviction quashed. I am aware
that a heinous crime was committed. An innocent life was wantonly
taken. And in a gruesome fashion. But we cannot as a court of law
be swayed by these considerations to affirm a conviction which is
unsafe and dispense with long established principles and rules that
assure the integrity of the criminal justice system.
38. Of course this dissenting judgment does nothing for the
accused in the present case. I am fully conscious of that. But, as
Khanna J said in Additional District Magistrate, Jabalpur v
Shivakant Shukla AIR 1976 SC 1207:
“As observed by Chief Justice Hughes, judges are
not there simply to decide cases, but to decide
them as they think they should be decided, and
while it may be regrettable that they cannot always

30
agree, it is better that their independence should
be maintained and recognized than that unanimity
should be secured through its sacrifice. A dissent
in a court of last resort, to use his words, is an
appeal to the brooding spirit of the law, to the
intelligence of a future day, when a later decision
may possibly correct the error into which the
dissenting judge believes the court to have been
betrayed.”
39. For the reasons given by my learned brothers who form the
majority, this appeal stands dismissed. The conviction and sentence
are affirmed.
Dated: October 6, 2005.
Gopal Sri Ram,
Judge, Court of Appeal,
Malaysia
Putrajaya
Counsel for the appellant: Hazman Ahmad
Solicitors for the appellant: Tetuan Raja Badrol Hazman
Counsel for the respondent: Nurulhuda Nur’aini bt Mohd Noor
Solicitors for the respondent: Peguam Negara Malaysia