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IN THE COURT OF APPEAL OF MALAYSIA

(APPELLATE JURISDICTION)
[CRIMINAL APPEAL NO.: M-05(M)-381-10/2020]
BETWEEN

NARENDRANPATHY PATHY … APPELLANT

AND

PUBLIC PROSECUTOR … RESPONDENT

HEARD TOGETHER WITH

IN THE COURT OF APPEAL OF MALAYSIA
(APPELLATE JURISDICTION)
[CRIMINAL APPEAL NO.: M-05(M)-382-10/2020]
BETWEEN

AIMAN MAZLAN … APPELLANT

AND

PUBLIC PROSECUTOR … RESPONDENT

HEARD TOGETHER WITH

IN THE COURT OF APPEAL OF MALAYSIA
(APPELLATE JURISDICTION)
[CRIMINAL APPEAL NO.: M-05(M)-383-10/2020]
BETWEEN

NAMASIVAYAM M. PERUMAL … APPELLANT

AND

PUBLIC PROSECUTOR … RESPONDENT

HEARD TOGETHER WITH

IN THE COURT OF APPEAL OF MALAYSIA
(APPELLATE JURISDICTION)

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[2023] 1 LNS 598 Legal Network Series
[CRIMINAL APPEAL NO.: M-05(M)-384-10/2020]
BETWEEN

SETHUPATHI PATHI … APPELLANT

AND

PUBLIC PROSECUTOR … RESPONDENT

In The Matter of The High Court Of Malaya At Malacca

[Criminal Trial No.: 45(B)-1-3/2014]

Between

And

Public Prosecutor

1. Logan Raj Letchemanan

2. Satish Alagapan

3. Vincent Lawrence Govindaraju

4. Namasivayam Perumal

5. Narendranpathy Pathi

6. Sethupathi Pathi

7. Aiman Mazlan

8. Pragash Ismail

CORAM: HANIPAH FARIKULLAH, JCA

GUNALAN MUNIANDY, JCA
NORDIN HASSAN, JCA

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JUDGMENT

INTRODUCTION

[1] These appeals by the Appellants, who were Accused 4,5,6 and 7 in
the Court below [A.4, A.5, A.6 & A.7] against their conviction and
sentences imposed by the Learned Judicial Commissioner [‘LJC’] under
Section 302 of the Penal Code [‘PC’]. On being found guilty and
convicted as charged with murder under S. 302 PC, the LJC sentenced the
Appellants to death by hanging.

FACTUAL BACKGROUND

[2] The charge against the Appellants read as follows:

“Bahawa kamu pada 04.05.2013 jam lebih kurang 10.45 malam, di

hadapan rumah No. 91, Jalan BJ 2, Taman Bertam Jaya, di dalam
Daerah Melaka Tengah, di dalam Negeri Melaka, bagi mencapai
niat bersama kamu telah melakukan bunuh dengan menyebabkan
kematian terhadap seorang lelaki R. SIVAN A/L B. RAGAVAN
(No. K/P: 810720-05-5267), dan oleh yang demikian kamu telah
melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen
302 Kanun Keseksaan dan dibaca bersama Seksyen 34 Kanun yang
sama”.

[3] On 4.5.2013 at about 10.45 pm, the deceased arrived at the house
bearing address No. 91, Jalan BJ2, Taman Bertam Jaya, together with his
two friends, namely, PW28 and PW32 on a motorcycle.

[4] Upon arrival, while the deceased was talking on the handphone,
two cars and a motorcycle arrived at the said house. A group of eight men
in two cars and a motorcycle attacked the deceased using parangs and
hockey stick. As a result of the attack, the deceased collapsed in a pool of
blood. The attackers fled the scene.

[5] The deceased who was in critical condition was brought to Malacca
Hospital for treatment and was pronounced dead on 5.5.2013, at 10.40

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am.

[6] PW.30, the pathologist who did the autopsy on the deceased’s body
confirmed that the deceased died due to slash wounds to the head and
arm.

[7] PW.25, PW.28 and PW.29 in their evidence positively iden tified
the Appellants as the assailants.

[8] The Appellants gave their sworn evidence in defence that they were
at the place of the incident. However, they denied committing the offence
of murder of the deceased. They denied having attacked and stabbed the
deceased during the incident.

[9] The trial judge found that the Appellants have failed to raise a
reasonable doubt on the prosecution case. As such, the Appellants were
found guilty as charged and convicted for the offence of murder of the
deceased and were sentenced to the mandatory sentence of death.

OUR DECISION

[10] In support of their appeals seeking that the finding of the LJC is set
aside, the Appellants advanced the following grounds as summarised
below:

1) Failure of the LJC to comply with the requirements of S.

182A of the Criminal Procedure Code [‘CPC’];

2) The LJC had failed to consider all the evidence and the case
as a whole before making his finding at the conclusion of the
defence case against the Appellants;

3) Plain error by the LJC in finding that the Appellants had been
positively identified as the assailants;

4) Failure by the LJC to properly analyse the evidence at the

close of the defence case and sufficiently address the issue of

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common intention under S. 34, PC – a necessary element of

the charge; and

5) Negligence of defence counsel of A.4 resulting in A.4 being

found guilty as charged despite presenting the same evidence
and defence as the 2 nd and 3 rd Accused [‘A.2’ and ‘A.3’] who
were found not guilty and acquitted of the charge.

[11] In respect of the Appeals by A.4 – A.7 [‘Appeal 380’] the

Respondent / Public Prosecutor [‘PP’] contended that a prima facie case
had been made out for the offence of murder as the elements of the
offence under S. 302, PC had been made out.

[12] We note that as regards proof of the vital elements of murder, the
dispute revolved around whether the identity of the persons who had
inflicted the fatal injuries on the deceased had been established. It was
the Prosecution [‘PP’s] contention that the Appellants had been positively
identified through the evidence of 3 material witnesses, namely, PW.25,
PW.28 and PW.29.

[13] In summary, the material evidence of the above witnesses that the
PP highlighted to us was as follows.

[14] Firstly, the evidence of PW.25, the mother of the deceased that she
was at the scene of the crime when the accused, ie, the Appellants,
arrived at the scene and attacked the deceased.

[15] Secondly, an eyewitness (PW.28) testified that he arrived at the

scene with “abang Siva” (‘deceased’) on a motorcycle just before the
incident occurred. Upon arrival, the deceased spoke on the handphone
with one ‘Naren’ from whose voice PW.28 identified that person as
someone known to him ie, A.5. After being obstructed by Accused 8 and
1 [‘A.8 and A.1’] using a stick, PW.28 then saw Accused 5, 6, 4, 3 & 7
[‘A.5, A.6, A.4, A.3 & A.7’] together with 1 or 2 unknown persons hit
the deceased with sticks and stab him with a parang. He was able to
positively identify these accused persons who assaulted and stabbed the

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deceased during the incident.

[16] PW.29 was the other purported eyewitness called by the

prosecution. He confirmed that the deceased had arrived at the scene with
SP.28 and SP.32 on the motorcycle. Suddenly, 2 cars and a motorcycle
also arrived at the scene. The 8 persons who had arrived in the car and
the motorcycle started attacking the deceased using parangs and a hockey
stick. A.5 was the first person who attacked the deceased followed by A.1
– A.4, and A.6 – A.8 using a parang to the head, hands and abdomen. At
the time of the attack, PW. 29 was only 6 - 7 feet away. PW. 29 knew A.1
– A.8 at the material time because they had previously come to his house
in Batu Cheng, Malacca to meet the deceased. The PP submitted that the
defence attempt to challenge the credibility of PW.29’s evidence failed
because his evidence was strong and cogent.

[17] In contrast to the thrust of the PP’s case on the core issue of
positive identification, the Appellants pointed out to us certain salient
aspects of the LJC findings on the issue of the identity of the assailants,
amongst others that the PP had presented 4 different versions through the
evidence of key witnesses, namely PW. 25, PW.28, PW. 29 & PW. 30
(via the Forensic Report). Yet, the LJC had decided to call for the
defence of 6 of the accused persons (A.2 – A.7).

[18] Despite the above finding, after A.2 and A.3 had given evidence on
oath which was consistent with the evidence of PW.25 and PW.32 that 20
persons who had been at the scene at the time of the incident had attacked
and injured the deceased, the LJC decided that the testimony of PW.29
had to be reviewed for the reason that from the angle that PW.29 was
standing at that time, it was impossible for him to identify the assailants
who attacked and injured the deceased. Moreover, at that time at least 20
persons had surrounded the deceased and the LJC had found the
credibility of the other prosecution witnesses to be lacking at the end of
its case. Importantly, the LJC found PW.29’s evidence to be unreliable
upon reviewing his evidence after the close of the defence case and it was
on the strength of this evidence that the Appellants had been called upon

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to enter on their defence to the S. 302 charges.

[19] It was the defence contention that as the evidence of PW.29 which
was the basis for the calling of the defence was found to be incredible
and unworthy of credit, there was, thus, no evidence before the Court to
establish positive identification of the Appellants as the persons who had
caused the fatal injuries to the deceased and ultimately, his death. With
respect to the LJC, we are in agreement with the defence contention of
the issue of positive identification of the Appellants that the LJC that
plainly evidence in failing to give due regard to the material
contradictions and unreliability of, the prosecution evidence on this vital
issue.

[20] Guidance can be rightly sought from the Federal Court [‘FC’] case
of Ong Teik Thai v. PP [2017] 4 MLJ 421 where it was pronounced that:

“(1) As the charge against the appellant was that he together with
four other persons at large had committed murder in furtherance of
their common intention, the proof of common intention under S. 34
of the Penal Code was crucial. Therefore, at the close of the
prosecution’s case, there had to be sufficient evidence to prove that
the appellant was acting in concert with the other four persons still
at large in the commission of the murder of the deceased. If there
was reasonable doubt that he was acting as such or if there was
reasonable doubt as to the identification of the appellant as one of
the persons acting as such, then the prosecution had failed to prove
a prima facie case against the appellant entitling him to an
acquittal. In the present case, there were contradictions in the
evidence given by SP5 and SP6, in that SP5 testified that four men
with yellow coloured hair had attacked the deceased, while SP6
claimed there were five assailants. Further, based on SP6’s
testimony it was doubtful as to whether SP6 had actually seen the
appellant slashing the deceased as he claimed. In fact, SP6
contradicted himself in his own evidence. As such, the credibility

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and the weight to be attached to SP6’s evidence was questionable

(see paras 7 & 12 - 17).”

[21] On the failure to consider the discrepancies and contradictions in

the evidence of the vital identification witness, the FC remarked that the
ultimate vital question is whether in view of the contradictions it was safe
to rely on their evidence. That failure was a serious misdirection on the
part of the trial judge in his handling of the issue of identification of the
appellant, which was so crucial to the question of whether th e prosecution
had established a prime facie case against the appellant. This
misdirection (by way of non-direction) alone was sufficient to warrant
appellate intervention (see paras 18-19 & 21).

[22] It was rightly highlighted to us that the LJC’s decision to call for
the defence of A.2 – A.7 on the murder charge was questionable as the
LJC himself had remarked that the PP had presented 4 different versions
of the incident. It was indisputable that the versions narrated by PW.25,
PW.28, PW.29 and PW.32 differed substantially on material facts,
particularly as to the identity of the actual persons who had attacked and
caused injuries to the deceased where the prosecution leads 2 or more sets
of evidence which contradict each other, the court would be left wit h no
reliable and trustworthy evidence that could safely from the basis of a
conviction. [see PP v. Lee Eng Kooi [1993] 2 MLJ 322].

[23] It is clear to our minds that the LJC had failed to seriously consider
the infirmities and unsatisfactory features in the prosecution evidence
itself before reaching his conclusion that the Appellants had failed to cast
a reasonable doubt in the PP’s case. [see also PP v. Tiong Wee Kiet
[2019] 1 MLJ 634, COA].

[24] We agree with Appellants’ propositions that where the PP’s case
itself is riddled with contradictions and inconsistencies, which is the case
here, conviction hardly stand. [see PP v. Arumugam a/l Muniady & Ors
[2018] 1 LNS 369 COA - affirmed by the Federal Court].

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[25] We must pay particular attention to the LJC finding that the
credibility of PW.29, on whose evidence the LJC had found a prima facie
case against the Appellant had been negatived upon hearing the defence
evidence. In the circumstances, the LJC ought to have accorded the
benefit of the doubt to the accused and not rely on the evidence of
witnesses who, in the first place, had not been considered reliable.

[26] We would next proceed to deliberate on another vital issue raised

by Appellants, namely, the absence of proof of the vital element of
common intention under Section 34 of the Penal Code [‘PC’].

[27] On the issue of common intention, it is important to bear in mind

the pronouncement of the LJC at the close of the prosecution that in
relation to this vital element of the charge, his view was that it had been
proved simply based on assumption from the presence of A.2 – A.7 at the
scene when the incident occurred.

[28] Central to the Appellants’ position on this point was that i t was
erroneous for the LJC to have made the essential finding merely based on
assumption as in law he was required to evaluate the entire evidence
adduced at that stage to ascertain the role and involvement of each of the
accused in the incident that resulted in the death of deceased, particularly
as to whether they had acted in furtherance of a pre-arranged plan to
cause bodily injuries to him that could result in his death.

[29] As impressed upon us by the Appellants, we must heed the settled

principle in regard to burden of proof where the prosecution places
reliance on S.34 of the Penal Code to implicate several accused persons
who participated together in a criminal act in furtherance of a common
intention. As emphatically pronounced by the Federal Cou rt in Ong Teik
Thai v. PP [2017] 4 MLJ 421, as follows:

“There was no finding made by the trial judge on the specific act
done by the appellant in furtherance of the common intention which
was crucial in a case such as this where reliance was placed on

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S.34 of the Penal Code. This was another serious misdirecti on that led to
the conclusion that the trial judge had not made maximum evaluation of
the evidence at the close of the prosecution’s case, which had occasioned
a serious and substantial miscarriage of justice warranting appellate
interference.”

[30] We are convinced that the PP’s contention that based on the totality
of its evidence, the presence of the Appellants at the scene and the fact
that they had jointly participated in the attack on the deceased and caused
fatal injuries to him, the common intention to cause his death had been
proved, is wholly misconceived in law and fact. It is wrong in principle
as a mere presence at the scene of crime without positive identification of
the persons who had actually participated in the criminal act as per the
charge will not sustain a charge which relies on the element of common
intention to commit the offence charged to the pursuant to S.34 of the PC.

[31] We would conclude on this issue that the LJC had plainly erred in
his analysis of the evidence and in arriving at the conclusion that
common intention as understood in law had been proved against the
Appellants on the assumption of their intention based merely on their
presence at the scene when the incident occurred. It was a perverse
conclusion that had occasioned a miscarriage of justice.

[32] We do not propose to deliberate on a couple of the lesser grounds

raised by the Appellants except to touch briefly on the serious conflict in
the findings of the LJC on the credibility of key witnesses at different
stages of the trial.

[33] This is a clear case where the important findings by the LJC
appeared to us to be mutually exclusive as they conflicted with each other
and rendered the evidence relied upon by the LJC far from reliable. It was
so for 2 reasons. First, the LJC had found categorically that it was only
the evidence of PW.29 that was credible and could be the basis for calling
upon the Appellants to enter on their defence. However, at the end of the
defence case, the LJC found that as A.5 had not rebutted the version of

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PW28, who had been found not to be credible, his version (A.5’s) had to
be rejected. Second, A.5 had been charged under S. 302, PC jointly with
2 other charges under S. 326, PC. A.5 was acquitted and discharged of
the S. 326 charges based on a consideration of his subsequent conduct
pursuant to Section 8 of the Evidence Act 1950. It was found that A.5’s
subsequent conduct that was exculpatory was unrebutted by the PP.

[34] We agree with Appellants’ contention that the LJC had erred in his
decision to convict A.5 for the S. 302, PC. Charge in view of his
contradictory findings wherein he applied A.5’s subsequent conduct to
acquit and discharge him for the S. 326 charge but he failed to apply the
same subsequent conduct to exculpate him of the S. 302 charge. His
conduct to which the LJC gave credence in arriving at his finding on the
S. 326 charge showed clearly the non-involvement of A.5 in the attack on
the deceased.

CONCLUSION

[35] For the foregoing reasons, the decision we arrived at the conclusion
of Appeal 381 - 384 is as follows:

In our judgment, which is unanimous, there are merits in law and

fact in the S. 302, PC appeals. The decision of the High Court in
our considered view is plainly wrong and warrants appellate
interference.

We are of the view that the LJC (now a High Court Judge) had
erred in law and fact to convict the appellants. We find that there
are contradictions in the evidence of the material witnesses
especially the evidence of PW.28 and PW. 29 on the threshold issue
of the identity of the appellants. Therefore, as the convictions are
unsafe, the decision of the High Court is accordingly set aside. We
allow the appeal. The appellants are hereby acquitted and
discharged.

Dated: 7 APRIL 2023

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(GUNALAN MUNIANDY)
Judge
Court of Appeal
Putrajaya
Counsel:

For the appellant - Paul Krishnaraja, Goh Chee Kian & Amy Chong; M/s
Paul, Amy Chong & Associates

For the Respondent - Leo Anak Saga; Attorney General's Chambers

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