DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA ...

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36 [63] The learned JC judicially scrutinised on a maximum evaluation basis the evidence at the close of the prosecution’s case following the rigours as set out in Looi Kow Chai & Anor v Public Prosecutor [2003] 2 MLJ 65, CA; and in Balachandran v. PP [2005] 1 CLJ 85, FC together with the statutory provisions of section 180(1) of the CPC. In regard to the death of the deceased and the marking of the deceased’s 112 statement as exhibit “P5” [64] Sariah binti Ali (SP1) – the sister of the deceased (see the spelling of the name of the deceased as recorded by the learned JC at page 46 of the appeal record at Jilid 1 as Zulkifli bin Ali), testified that her brother was detained at the Sungai Buloh prison and he died on 11.8.2009 and was buried at Kampong Pasir Baru, Semenyih. [65] Learned defence counsel criticised the evidence led in respect of proof of death. He argued that the evidence was seriously lacking in quality and credibility and completely failed to meet the burden of proof required of the prosecution. The prosecution, on the other hand, relied on the evidence of SP1 to prove that the deceased had died on 11.8.2009 and had since been buried and the prosecution then elected to tender the statement of the deceased recorded under section 112 of the CPC as evidence by marking it as exhibit “P5”.
37 [66] Learned defence counsel was unhappy that the prosecution relied on exhibit “P5” and he submitted that usage of exhibit “P5” constituted a serious violation of and contrary to section 30 of the Evidence Act 1950. It was also submitted that the learned JC failed to apply the correct test in evaluating exhibit “P5”. [67] There is a judgment of that brilliant Judge in the person of Edgar Joseph Jr J (later SCJ) in Public Prosecutor v. Leong Heo Cheong [1990] 2 CLJ (Rep) 738, which merits reproduction. At page 742 of the report, his Lordship aptly said: “I must now turn to examine the merits of the case but before I do so, I wish to make it plain that looking back I am satisfied that the prosecution had established the fact of Sidek’s death even without the aid of any death certificate, having regard to the testimony of DPC Mathuveran (PW1), Sgt. Major Majid (PW2), and Woman Constable Aini (PW3), all of whom were colleagues of the accused, and who testified, without challenge, that Sidek had died before the trial commenced. Indeed, Sgt. Major Majid, who was the immediate superior of Sidek, had testified that the latter had died on 14 June 1989. The pre-requisite requirement of proof of death under s. 32 was therefore satisfied by the prosecution.” [68] That puts an end to any criticism as to the manner in which the prosecution sought to prove the death of the deceased. [69] However, Mr Mohamad Abazafree bin Mohd Abbas, the learned deputy public prosecutor, graciously conceded that the learned JC erred in admitting the statement of the deceased recorded under section 112 of the CPC as an exhibit marked as “P5”. He magnanimously submitted that it should not be admitted nor marked as an exhibit. In our judgment, even
Page 1 and 2: 1 DALAM MAHKAMAH RAYUAN MALAYSIA (B
Page 3 and 4: 3 iaitu sepucuk pistol telah menyeb
Page 5 and 6: 5 10.10.2007. Exhibit “P9” was
Page 7 and 8: 7 robbery and he circulated that in
Page 9 and 10: 9 downwards. When the driver of the
Page 11 and 12: 11 pistol which was located underne
Page 13 and 14: 13 (e) one red and blue coloured ba
Page 15 and 16: 15 motorcar was stopped, SP15 told
Page 17 and 18: 17 [32] The appellant testified tha
Page 19 and 20: 19 said, “Haizat, tolong aku ni p
Page 21 and 22: 21 S : Kamu tidak pernah berjumpa O
Page 23 and 24: 23 irresistible inference that the
Page 25 and 26: 25 advice of Suffian LP in Jayarama
Page 27 and 28: 27 driver’s seat of the Proton GE
Page 29 and 30: 29 CPC for the government chemist t
Page 31 and 32: 31 GEN-2 motorcar had just been use
Page 33 and 34: 33 “Finding dalam P6 ini adalah d
Page 35: 35 Pilah-Seremban road some 15 kilo
Page 39 and 40: 39 [74] The strength of the prosecu
Page 41 and 42: 41 these assumptions are mere specu
Page 43 and 44: 43 [86] It was also submitted by le
Page 45 and 46: 45 [91] So, at least ten (10) days
Page 47 and 48: 47 [94] The sum total of it all wou
Page 49 and 50: 49 ini telahpun disangkal seawal ya
Page 51 and 52: 51 findings of fact arrived at by t
Page 53 and 54: Rebuttal evidence 53 [108] The appe
Page 55 and 56: 55 legal basis for the reception of
Page 57 and 58: 57 from the same Styer pistol (exhi
Page 59 and 60: Counsel 59 (1) For the Appellant Ac

DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA ...

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