DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA ...

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[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