Embed Size (px)
Citation preview
1
IN THE COURT OF APPEAL AT PUTRAJAYA
CRIMINAL APPEAL NO C-05(M)-5-01/2016
BETWEEN
RABIDIN BIN SATIR … APPELLANT
AND
PUBLIC PROSECUTOR … RESPONDENT
[In the matter of High Court Malaya at Temerloh
Criminal Trial No. 45B-15-10/2013
Between
Public Prosecutor
And
Rabidin bin Satir]
CORAM:
MOHTARUDIN BIN BAKI, JCA
ZAKARIA BIN SAM, JCA
ABANG ISKANDAR BIN ABANG HASHIM, JCA
2
JUDGMENT OF THE COURT
The Charges
[1] Rabidin bin Satir (“the Appellant”) was charged for five offences
vide three cases namely:
In Criminal Trial no: 45B-15-10/2013
“Bahawa kamu, pada tarikh 3 November 2012, di antara jam
lebih kurang 3. 50 pagi hingga 4. 30 pagi, bertempat di alamat
JH2 Perumahan Jabatan Perhutanan, Jalan Tras Bentong, di
dalam Daerah Bentong, di dalam negeri Pahang darul Makmur,
telah membunuh seorang lelaki bernama Khairul Hazri bin
Jamaludin, No K/P: 811031-06-5149, dan dengan itu kamu
telah melakukan suatu kesalahan yang boleh dihukum di
bawah seksyen 302 KK.” (“First charge”); and
“Bahawa kamu, pada tarikh 3 November 2012, di antara jam
lebih kurang 3. 50 pagi hingga 4. 30 pagi, bertempat di alamat
JH2 Perumahan Jabatan Perhutanan, Jalan Tras Bentong, di
dalam Daerah Bentong, di dalam negeri Pahang Darul Makmur,
pada masa melakukan rompakan telah menunjukkan suatu
senjata api dengan cara yang mungkin mendatangkan
3
ketakutan mati atau cedera kepada Yuslailee binti Mat Dami @
Abu Samah No KP: 840403-06-5442 dan dengan itu kamu
telah melakukan suatu kesalahan yang boleh dihukum di
bawah Seksyen 4 Akta Senjata Api (Penalti Lebih Berat) 1971.”
(“Second charge.”)
In Criminal Trial no. 45-15-10/2014
“Bahawa kamu, pada tarikh 3 November 2012, di antara jam lebih
kurang 3. 50 pagi hingga 4. 30 pagi, bertempat di alamat JH2
Perumahan Jabatan Perhutanan, Jalan Tras Bentong, di dalam
Daerah Bentong, di dalam negeri Pahang Darul Makmur, telah
melakukan rompak dan dengan sengaja menyebabkan cedera
kepada Yuslailee binti Mat Dami @ Abu Samah No KP: 840403-06-
5442. Maka dengan itu kamu telah melakukan suatu kesalahan
yang boleh dihukum di bawah Seksyen 394 Kanun Keseksaan”
(“Third Charge”).
In Criminal Trial No. 45-16-10/2014:
“Bahawa kamu, pada tarikh 3 November 2012, di antara jam
lebih kurang 3. 50 pagi hingga 4. 30 pagi, bertempat di alamat
JH2 Perumahan Jabatan Perhutanan, Jalan Tras Bentong, di
4
dalam Daerah Bentong, di dalam negeri Pahang Darul Makmur,
telah merogol mangsa nama: Yuslailee binti Mat Dami @ Abu
Samah No KP: 840403-06-5442. Maka dengan itu kamu telah
melakukan suatu kesalahan yang boleh dihukum di bawah
Seksyen 376(2) Kanun Keseksaan” (“Fourth charge”) and;
“Bahawa kamu, pada tarikh 3 November 2012, di antara jam
lebih kurang 4. 10 pagi hingga 4. 30 pagi, bertempat di alamat
JH2 Perumahan Jabatan Perhutanan, Jalan Tras Bentong, di
dalam Daerah Bentong, di dalam negeri Pahang Darul Makmur,
telah merogol mangsa nama: Yuslailee binti Mat Dami @ Abu
Samah No KP: 840403-06-5442. Maka dengan itu kamu telah
melakukan suatu kesalahan yang boleh dihukum di bawah
Seksyen 376(2) Kanun Keseksaan” (“Fifth charge.”)
Brief facts of the case
[2] On the night of the incidents referred to in the above-quoted
charges, one Yuslailee binti Mat (PW7) and her husband, Khairul Hazri
bin Jamaludin (“the deceased”) were sleeping at the living hall of their
house.
5
[3] Suddenly they were rudely awoken by the presence of a man
wearing a mask over his face and an army camouflage outfit.
[4] The masked man (“the Appellant”) then beat up the husband
repeatedly for at least five to six times using the butt of a gun he carried
along with him. The beatings had rendered the husband weak and
helpless. They had also caused excessive bleeding. PW7 tried to protect
her husband but she too was not spared the beatings by the Appellant
by using the butt of the same gun. The Appellant then covered PW7’s
face with a cloth and warned her not to do anything and had also
threatened her that his friends were outside the house. PW7 then heard
the noises as though the Appellant was ransacking their house. After a
while, the Appellant then had asked PW7 whether there were firearms
kept in the house and to which the PW7 had answered in the negative.
Angered by the response, the Appellant hit the husband again several
times. PW7 had begged the Appellant not to kill the husband. The
Appellant did not relent. He then raped PW7 despite PW7 having
pleaded with him that she was then pregnant. The Appellant ignored her
pleas for mercy.
6
[5] After that, the Appellant ransacked the house for the second time.
About 20 to 25 minutes later, the Appellant asked PW7 for the car key.
PW7 showed the Appellant where it was kept. Later, she heard the
sound of the car door and car boot, being opened. A moment later, the
Appellant came to PW7 again and asked if there was a gun kept in the
house. PW7 told him that there was none. That answer had apparently
angered the Appellant. The Appellant then raped PW7 for the second
time. PW7 had begged for his sympathy and again informed about her
pregnancy but in vain. Then, for no apparent reason, the Appellant
suddenly apologized to PW7.
[6] Before leaving, the Appellant snatched PW7’s bracelet which she
was then wearing. About 30 minutes after the Appellant left the house
PW7 went out to look for help. At that time, the deceased was already
unconscious.
[7] Along her way to Bentong Hospital, she met a security guard who
after being informed by PW7 of what had happened, then had rushed to
seek for help at the Bentong Hospital Emergency Department. An
ambulance was later sent to PW7’s house.
7
[8] At about the same time, Cpl Halias bin Zakaria (PW4) was on
patrol duty in the area. PW7 had stopped him and asked for help. He
then called Ibu Pejabat Polis Bentong (IPD Bentong) for assistance. A
police report (Exhibit P8) was subsequently lodged of the incidents.
[9] Meanwhile, the husband was taken to hospital for treatment. The
on-call doctor, Doctor Gauri a/p Arumugam (PW6), was the doctor who
had attended to him but despite all effort, the deceased succumbed to
his injuries and was declared dead at 7:30am on 3 November 2012.
PW7 had lodged a police report (P69) thereafter, pertaining to her
husband’s untimely and tragic demise.
[10] Doctor Nor Zaimah binti Mohamad Idris (PW8) was the pathologist
who conducted the autopsy on the deceased husband and she
confirmed that the death of the deceased was caused by a severe head
injury from the effect of a blunt object (severe head injury due to blunt
force trauma) as listed in the post-mortem report that she had prepared
(Exhibit 106).
[11] The Appellant was arrested on 14 November 2012. At the time of
arrest, a gun [Exhibit P41B] was found on him, which PW7 later
identified it as the one used in the incident at her house. Apart from the
8
gun, PW7’s personal belonging reported to be stolen during the incident,
were found in the bag recovered from the Appellant when he was
arrested by the police.
[12] Revathi a/p Perumal (PW15) in her report (P121) confirmed the
presence of semen on the night gown worn by PW7 during the incident
(Exhibit P103A) and on the bed sheet (P27A) both of which matched the
Appellant’s DNA profile. It was also in evidence that the DNA profile
analysed from the vagina swap (Exhibit IS22) taken from PW7 had
matched the DNA profile of the Appellant developed from his blood
sample.
[13] The Appellant was charged as per the above- mentioned charges
in the High Court sitting at Temerloh, Pahang. He had claimed trial for all
the charges. At the end of the trial, the learned High Court Judge found
the Appellant guilty for all the five charges preferred against him.
[14] For the first charge of murder, the Appellant was sentenced to
death. For the second charge under Section 4, Fire Arms Act (Increased
Penalty) 1971, the learned High Court Judge had sentenced the
Appellant to 12 years imprisonment and 12 strokes of rattan. For the
third charge under section 394 of Penal Code, the Appellant was
9
sentenced to 8 years imprisonment and two strokes of rattan. In respect
of the fourth and fifth charges, he was sentenced to 12 years
imprisonment and 4 strokes of rattan each respectively.
[15] Aggrieved by such decision, the Appellant appealed against it to
the Court of Appeal. Thus this appeal by the Appellant person before us.
The Appeal
[16] We heard the appeal on 15 March 2017. During the hearing of the
appeals, counsel for the Appellant had basically raised the following
issues, namely:
a. Identification of the gun used impacting on the prima facie
case for the murder, armed robbery and the firearms
charges;
b. The contradictions in the evidence of the prosecution’s
witnesses;
c. The issue on prima facie case against the second rape [the
fifth charge].
[17] At the start of the oral submissions before us, the learned counsel
for the Appellant indicated to us that he was relying to a great extent, on
10
the recent decision of this Court in the case of Mohd. Yasser bin Shaik
Mahmad V. PP [2017] MLRAU 1 in support of his proposition in his
submissions in relation to the charge for murder. Towards that end, he
had intimated to us that he would be adding a further ground of appeal
to his Petition of Appeal to enable him to advance such submission to be
ventilated before us. To this, the learned Deputy did not object. As such,
there were in total, 4 issues that were raised for our consideration.
[18] On the first issue [a] above, the learned defence counsel alleged
that the learned High Court Judge had erred in finding that the
prosecution had successfully proved a prima facie case against the
Appellant when the identity of the weapon used was disputed.
[19] The defence counsel submitted that his perusal of the evidence of
ASP Mohd bin Mustafa (PW5), did not yield any evidence of him having
handed over the exhibits to anybody, including Insp Ismantie bin Ismail
(PW12).
[20] Suffice for us to restate here the law on the identity of exhibits and
that would bring us to the case of Su Ah Ping v PP [1980] 1 MLJ 75
where learned Justice Suffian LP had occasion to say the following:
11
“(1) it is unnecessary to call evidence to ensure that there is no
break in the chain of evidence. If the officer who picked up the
object at the scene produced it and identified it as that very
object that is enough and there is no need to call all other
officer who handled it, unless there is doubt as to the identity.”
[21] From the evidence led before the trial Court, the evidence of the
seizing officer was clear. He had identified the gun that was tendered
and shown to him as the same gun that was seized by him from the
Appellant when he arrested the latter. There was no ambiguity. The
learned trial Judge who had observed his demeanour on the witness
stand had no hesitation whatsoever when she accepted his evidence
and there was nothing in his testimony that would have warranted any
doubt as to the accuracy of his evidence. There exists no reason for us
to depart from her finding on the same. We therefore had found no
merits in the Appellant’s contention in that regard.
[22] The second issue [b] is the alleged contradictions in the evidence
of the prosecution’s witnesses’ evidence pertaining to the issue of chain
of evidence relating to seized exhibits and the identity of the gun that
was purportedly seized from the Appellant by the police officer.
12
[23] The first version of evidence by PW12 is as follows:
“PADA 16/5/2013
SAYA TERIMA BARANG KES DARIPADA ASP YUSOF B. UNIS
DAN SERAH KE STOR BARANG KES
1. SATU BUNGKUSAN BERTANDA FN 1 MENGANDUNGI
SELARAS SENAPANG BUATAN SENDIRI SAYA TANDAKAN
SEBAGAI “IS40”
2. SATU BUNGKUSAN BERTANDA FN2 DAN FN3
MENGANDUNGI KELONGSONG PELURU DAN SAYA
TANDAKAN SEBAGAI “IS41””
[24] The second version is during the cross examination of PW12, like
so:
12) S: Seterusnya kepada balistik, tuan menerima “FN1” bersama-
sama dengan “FN2 dan FN3 daripada siapa?
J: Insp. Fahrul.
13) S: Terus melalui Insp Fahrul?
J: Terima barang kes?
14) S: Ya.
J: Tak, Insp. Nurhuda.
15) S: Okay, ada apa- apa pengesahan bahawa tuan telah
menerima barang- barang tersebut melalui Ins. Nurhuda?
13
J: Pengesahan daripada Insp Nurhuda.
[25] We had carefully perused the notes of proceedings in order to
appreciate this contention by the learned counsel for the Appellant. We
had looked at the evidence of the relevant witnesses of the adverted to
by the learned counsel. We had considered the submissions advanced
on this issue. Our conclusion, with respect was in consonance with that
of the learned trial Judge who had expressed her finding at paragraph
17 of her grounds of judgment therein:
“Pembelaan menyatakan terdapatnya keraguan identiti apabila
terdapatnya dua kenyataan SP12 mengenai penerimaan FN1,
FN2 dan FN3. Di dalam pemeriksaan balas, SP12 menyatakan
ada menerima barang kes daripada Inspektor Nurhuda dan di
dalam pernyataan saksi dinyatakan menerima daripada ASP
Yusuf Bin Unis. Oleh yang demikian pembelaan menyatakan
terdapatnya dua set barang kes. SP5 yang merampas P41B
tidak pernah menyatakan terdapatnya dua set senapang
dirampas daripada tertuduh. Borang serahan barang kes
bertarikh 15/2/2013 bertanda P114 menjawab isu yang
dibangkitkan oleh pembelaan bahawa FN1, FN2 dan FN3 telah
diserahkan oleh SP12 kepada Inspektor Fahrul iaitu 5P9 dan ini
14
diakui oleh keterangan SP9 bahawa barang kes diserahkan
kepada Inspektor Nurhuda pada 16/5/2013. SP9 mengesahkan
telah membuat tandaan FN1 hingga FN3 dan mengakui serta
mengecam FN1 hingga FN3. SP9 telah membuat analisa ke
atas barang kes dan diserahkan semula kepada SP12. Tidak
timbul isu dua set senapang atau isu identiti mengenainya.”
[26] As such, with respect, we found no merit in the contention of the
learned counsel for the Appellant. There were no two sets of exhibits in
this case. The clear and unambiguous evidence has been that SP5 had
seized only one gun from the Appellant. The suggestion that there were
two sets of exhibits pertaining to the same could not find any credible
support at all. It was never put to SP5 that he had seized more than one
gun from the Appellant. He had identified the gun (Exh. P41B) as the
gun that he had seized from the Appellant. We found no merit in the
contention of the learned counsel in that regard.
[27] Relying on the decision of this Court in the case of Mohd Yasser
bin Shaik Mahmad [supra] it was submitted by learned counsel for the
Appellant that, this Court ought to substitute the conviction for murder
with that one for culpable homicide not amounting to murder. We had
occasion to look at the decision in the Mohd Yasser bin Shaik Mahmad
15
[supra] and to our minds that decision does not lay down any new
reading on section 300 limb (c) of the Penal Code. Essentially, the
decision in Mohd Yasser bin Shaik Mahmad [supra] reiterated what the
prosecution has to do in order to establish a charge under section 300
limb (c) of the Penal Code, whereby it was incumbent on the prosecution
to satisfy the operative phrase that reads:
“…if it is done with the intention of causing bodily injury to any
person, and the bodily injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death..”
[28] In the course of satisfying the requirements in the said phrase
quoted above, evidence must be led by the prosecution, through its
relevant witness or witnesses, to evince the fact that the intended injury
that was inflicted upon the victim, “was sufficient in the ordinary course
of nature to cause death.” This Court’s panel in the Mohd Yasser bin
Shaik Mahmad [supra] had proceeded on to state the following, having
agreed with the observation made by the Indian Court in the case of
Shiv & Ors v. State of Madya Pradesh [1988] 3 Crimes 8:
“With respect, we agree with the learned authors, on the true
import of the limb (c) to our section 300 Penal Code. It has
given great clarity as to the required legal elements that the
prosecution would need to establish in order to secure a
16
conviction for murder against the Appellant person. We would
wish to add that while the first part of the limb [c] to section 300
of the Penal Code could be proven by evidence, either direct or
circumstantial, from witnesses of fact called by the prosecution,
however the second part of the same limb [c] must inevitably be
established, as a matter of expert medical opinion, that such
injury that was intentionally inflicted was sufficient in the
ordinary course of nature to cause death to the deceased. In
normal circumstances, clear testimony to that effect, from the
pathologist who has performed the post-mortem or autopsy on
the deceased body, would suffice to establish that crucial
factual circumstance and legal element.”
[29] The panel in the Mohd Yasser bin Shaik Mahmad [supra] then
proceeded on to evaluate the Records of Appeal before it and concluded
that there was no clear and unambiguous medical evidence emanating
from Dr Bhupinder Singh [SP16], the pathologist, to the effect that the
intended injuries that were inflicted were sufficient in the ordinary course
of nature to cause death. At the end of that exercise, bearing in mind the
standard of proof that needed to be discharged by the prosecution, the
panel there had concluded thus:
17
“To our mind, the absence of such positive statement of opinion
emanating from such an expert medical witness [SP16] was
fatal to the charge for murder that was premised upon limb (c)
to section 300 of the Penal Code.”
[30] Having so concluded, the panel in the Mohd Yasser bin Shaik
Mahmad [supra] had then set aside the conviction for murder and
entered instead a conviction for an offence punishable under section
304(a) of the Penal Code against Mohd Yasser bin Shaik Mahmad
[supra].
[31] Clearly, the decision of this Court in the Mohd Yasser bin Shaik
Mahmad [supra] must be viewed in its proper context, namely that it is
an illustration as to how the principle as laid down by the long line of
previous cases on limb (c) to section 300 of the Penal Code had been
applied to the given set of evidence as led in that case. In that regard,
the pertinent questions that would need to be asked would be [1]
whether there was medical evidence led by the prosecution to evince
proof of the phrase that the injuries intended to be inflicted were
‘sufficient in the ordinary course of nature to cause death’, and [2]
whether the medical evidence so adduced suffered any infirmity of such
a nature as to fall short of establishing that crucial element that must be
18
proven beyond reasonable doubt. A clear and unambiguous cause of
death by the medical witness, emphasizing on the nature of the injury
that was intentionally inflicted by the Appellant person, will assist the
Court to form the basis upon which the Court will proceed to make the
legal finding of the cause of death as required under limb (c) of the
Penal Code.
[32] Again, we had looked at the Records of Appeal for the answers to
the critical questions as posed above. We did find the answer, as did the
learned trial Judge, in the evidence of PW8 the pathologist who had
performed the autopsy on the deceased. PW8 had testified in answer to
Q.17 as follows:
“[17] Apakah punca kematian si mati? Kecederaan di kepala
akibat hentakan objek tumpul (Head injury due to blunt force
trauma)” [see page 169 Record of Appeal Volume 2].
[33] In answer to Q.18, PW8 had stated:
“[18] Kenapa doktor membuat kesimpulan tersebut berkenaan
punca kematian si mati? Melalui pemeriksaan luka dan
pemeriksaan dalaman mendapati tulang tempurung kepala
telah retak hancur, selaput otak koyak beserta pendarahan dan
otak juga turut terkoyak. Kecederaan di bahagian kepala ini
19
adalah konsisten dengan trauma akibat hentakan objek tumpul.
Kecederaan sebegini secara lazimnya menunjukkan
kecederaan otak yang parah dan boleh mengakibatkan si mati
pitam/pengsan serta merta. Otak juga didapati membengkak
akibat kesan kecederaan tersebut. Kecederaan ini boleh
menyebabkan renjatan dan sistem kawalan fungsi-fungsi badan
terganggu dan akhirnya membawa kepada kematian” [see page
170 Record of Appeal Volume 2].
[34] We had also looked at the cross-examination of PW8 by learned
counsel for the Appellant and we noted that apart from probing the PW8
on the object that could have caused the injuries on the head of the
deceased and whether the witness had difficulty in getting blood for
sampling purposes from the deceased, the learned counsel did not
direct his cross-examination of PW8 on the issue of the cause of death
in the context of limb (c) of section 300 of the Penal Code, namely on
the sufficiency of the injuries inflicted on the deceased to cause death in
the ordinary course of nature.
[35] The effect of failure to cross- examine a witness on a material
issue in his evidence in-chief is well-documented and to a great extent,
rather trite. We need only to refer to the speech by Mukerji J in the case
20
of A.E. G. Carapiet v A.Y. Derderian [1961] AIR Cal. 359, having cited
the celebrated House of Lords case of Browne v Dunn [1893] 6 R 67,
prior. Leaned Justice Mukerji had this to say:
“(10) The law is clear on the subject. Whenever the opponent
has declined to avail himself of the opportunity to put his
essential and material case in cross-examination, it must follow
that he believed that the testimony given could not be disputed
at all. It is wrong to think that this is merely a technical rule of
evidence. It is a rule of essential justice. It serves to prevent
surprise at trial and miscarriage of justice, because it gives
notice to the other side of the actual case that is going to be
made when the turn of the party on whose behalf the cross-
examination is being made comes to give and lead evidence by
producing witnesses. It has been stated on high authority of the
House of Lords that this much a counsel is bound to do when
cross-examining that he must put to each of his opponent’s
witness in turn, so much of his own case as concerns that
particular witness or in which that witness had any share. If he
asks no question with regard to this, then he must be taken to
accept the plaintiff’s account in its entirety. Such failure leads to
miscarriage of justice, first by springing surprise upon the party
when he has no further chance to meet the new case made
21
which was never put and secondly, because such subsequent
testimony has no chance of being tested and corroborated.”
[36] Premised on the uncontroverted evidence of PW8, we had
concluded that there was positive evidence to evince the fact that the
injuries intended to be inflicted and indeed were inflicted by the
Appellant on the deceased were sufficient in the normal course of nature
to cause death. In answer to the question [2] as postulated in paragraph
[31] above, we found that the evidence of PW 8 had not suffered from
any infirmity that could have compromised its efficacy in meeting the
proof required under limb (c) of section 300 of the Penal Code.
[37] We were therefore, in complete agreement with the learned High
Court Judge when, having considered the evidence of PW8, she had
concluded, in paragraph [12] in her Grounds of Judgment, as follows:
“SP8 menyatakan terdapatnya sekurang-kurangnya satu
hentakan kuat di bahagian kepala sehingga menjadikan
tempurung kepala terlalu remuk dan pastinya kepala sebagai
satu organ sensitif akan rosak apabila dipukul dengan begitu
teruk yang pada lazimnya akan menyebabkan kematian.
Mahkamah mendapati elemen-elemen di bawah seksyen
300(c) telah berjaya ditimbulkan oleh pihak pendakwaan.”
22
[38] As such, in the circumstances, we found that there was no merit in
the submissions by learned counsel for the Appellant on his purported
reliance on this Court’s recent decision in the case of Mohd Yasser bin
Shaik Mahmad [supra]. We found such heavy reliance by learned
counsel to be misconceived. The factual matrix that obtained in this
appeal was substantially different to that in the case of Mohd Yasser
bin Shaik Mahmad [supra] such that a different consideration, and
indeed a different conclusion, must inevitably ensue.
[39] Lastly, we now deal with the issue [c] on the second rape (fifth
charge). It was contended by the learned counsel that the High Court
Judge ought not to have called for the Appellant to enter on his defence
on the fifth charge for the second rape against Appellant. The reason
advanced by learned counsel was that there was only one DNA profile
that was derived from the vaginal swap taken from PW7 that had
matched the DNA profile of the Appellant. Therefore, while accepting
that the conviction against the Appellant for the first rape was justified,
there was no DNA profile evidence that was tendered by the prosecution
to show that there was a second penile penetration perpetrated by the
Appellant into PW7’s private part so as to constitute the second offence
of rape. As such, it was contended by learned counsel for the Appellant
23
that there was no prima facie case established by the prosecution in
respect of the second rape against the Appellant.
[40] Before we proceed further on the submission by the learned
counsel pertaining to the second rape (fifth charge), we must hasten to
say here that we found such submission to be an incredible and an
incredulous one.
[41] That having been said, we had perused through the evidence of
the prosecution witness PW15 [ Pegawai Sains Puan P. Revathi a/p
Perumal] who had forensically analysed the body fluids in the vagina
swap that was obtained from PW7, in particular, from her private part.
We had anxiously looked at PW15’s cross-examination by learned
counsel to see how she had been challenged on her findings. We could
not find anywhere in the evidence of the PW15 who did the DNA
profiling that she had been asked on whether it was possible to identify
and determine the relative age of the DNA profiles that were developed.
There was no occasion during which the learned counsel for the
Appellant had challenged the PW15 by suggesting to her that her
analysis for DNA profiling was inconclusive as she had failed to come up
with two specific DNA profiling of the Appellant from the vaginal swap as
being determinative of the two separate incidents of rape perpetrated on
24
PW7. On account of that, we were of the view that there was therefore
no foundation at all for the learned counsel to submit the way he did
before us, in relation to the second rape [see A.E.G. Carapiet [supra]
generally as above-quoted]. We found such submission to be an
uninformed submission, a shot in the dark, to say the least. It was
submitted akin to the last throw of the proverbial dice by the Appellant as
the ultimate afterthought. We therefore found no merit in such a
submission.
[42] Therefore, to reiterate, suffice for us to say here that the second
charge for rape was properly and sufficiently proven by the prosecution.
[43] We must reemphasize here that a person may be convicted for
rape under section 376 Penal Code, if the victim can show that there is
penetration of the Appellant person’s sexual organ into her private part.
[44] Under the Penal Code, as stipulated under section 375 therein, put
simply, an offence of rape is committed where:
(i) there is penetration of the Appellant person’s sexual organ into a
female’s private part; and
25
(ii) where the consent of victim is required to neutralize it, then the
lack of it and that, if she was an adult, consent had not given by her
to the Appellant person for the impugned sexual intercourse
between them.
[45] In this instant appeal before us, there was positive identification of
the Appellant’s penile penetration into the PW7’s private part against her
will, twice as charged. His seminal fluid was retrieved from there and
was tested as positive for DNA profiling, thereby having the effect of
literally placing him at the scene of the crime, which in a rape case is the
private part of the victim. Besides that, there was undisputed evidence
that PW7 saw him commit the crime against her as she had never
consented to the two unsolicited sexual intercourses between them. The
extreme circumstances under which these heinous offences were
committed would readily negate any semblance of consensual sexual
intercourse altogether.
[46] The evidence of PW7 pertaining to the second rape offence
perpetrated against her by the Appellant is contained in the Record of
26
Appeal Volume 2 at pages 105-106 and 108-109 therein. We now
reproduce verbatim such evidence:
“…dia bertindak agresif. Saya dengar dia, kelakuan dia macam
melurutkan seluar dia saya boleh dengar. Dia bukak zip, dia
angkat baju saya dalam keadaan marah, dia angkat baju tidur
saya selak sampai ke paras dada, lepas itu ditanggal seluar
dalam saya….
Kemudian dia terus masukkan ke dalam kemaluan saya…saya
dapat rasakan…
Kemudian saya rasa kemaluan dia masukkan dalam
kemaluan saya dengan agak kasar, lebih kasar berbanding
dengan yang sebelum itu…” [Italics in bold by us for
emphasis]
[47] To our minds, there is a very strong corroborative evidence of
penetration of the Appellant’s penis into the private part of the PW7, an
essential legal ingredient required to be proven for an offence of rape
under section 376 of the Penal Code.
[48] The oral testimonies of PW7 were entirely believed by the learned
trial Judge. She had the distinct advantage of observing the demeanour
of PW7, both visual and oral. We have no reason whatsoever to interfere
27
with her finding of fact on that score. Even Dr. Gauri who first treated
PW7 in the early morning after the incident observed that PW7 was
shivering [“menggigil” was the word used by Dr Gauri] when she related
to the doctor what had happened to her.
[49] The learned trial Judge had accepted the evidence of PW7 and
those of the other independent medical witnesses called by the
prosecution and we had no reason whatever to disagree with her
findings in anyway. The presence of the DNA of the Appellant in PW7’s
private part was further corroboration of that fact. As such, we too had
no difficulty in concluding, as did the learned trial Judge, that the
prosecution had proven the two charges for rape against the Appellant,
beyond reasonable doubt.
[50] For completeness, pertaining to the charge under section 4
Firearms (Increased Penalties) Act 1971 (the second charge), it was
contended by learned counsel that there was a doubt on the
serviceability of the gun Exh. P41B. We had looked at the serviceability
report P112 that was prepared by Insp. Fahrul Nizam bin Ab Nasir who
was the Inspektor Persenjataan. His conclusion after subjecting the
home-made gun and the bullets to the tests had been that the gun Exh
P41B was serviceable as it “boleh melepaskan tembakan” and that the
28
bullets were still active or “maseh aktif.” We noted that Insp Fahrul
Nizam [PW9] was a competent witness. There is no law which stipulates
that testing for serviceability of a gun must be done by a Chemist. There
was nothing inherently incredible about the findings that were made by
Insp. Fahrul Nizam. We found no merit in the contention of the Appellant
on this score.
Conclusion
[51] After considering the Records of Appeal, and the written and oral
submissions by both parties, we found that it was safe for us to sustain
the convictions by the learned High Court Judge dated 3 December
2015. The complaints advanced by the Appellant had no merits. All the
charges had been proven by the prosecution beyond reasonable doubt.
We had therefore unanimously dismissed the appeal, and affirmed the
convictions and the sentences imposed against all the five charges
proffered against the Appellant. Order accordingly.
Dated: 9 August 2017
29
ABANG ISKANDAR BIN ABANG HASHIM
Judge
Court of Appeal
Malaysia
Parties appearing:
For the Appellant: Mr. Osman bin Ujang (together with Dato' Azmi bin
Talib); Messrs. Osman Ujang & Co.
For the Respondent: Miss Nadia Hanim bt Mohd Tajuddin, Deputy
Public Prosecutor, Attorney General’s Chambers.
Cases referred to:
1. A.E.G. Carapiet v A.Y. Derderian [1961] AIR Cal. 359
2. Browne v Dunn [1893] 6 R 67
30
3. Mohd. Yasser bin Shaik Mahmad V. PP [2017] MLRAU 1
4. Shiv & Ors v. State of Madya Pradesh [1988] 3 Crimes 8
5. Su Ah Ping v PP [1980] 1 MLJ 75
