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M A L A YM A L A Y

S I AS I A

IN THEIN THECOURTCOURT

OFOF

APPEALAPPEALHolden in the Federal Territory of Putrajaya

CRIMINAL APPEAL NO. P-05(S)-[110&111]-05/12

BETWEEN

PUBLIC PROSECUTOR ...APPELLANT

AND

MOHD AZAM RAJA BIN ABDULLAH...RESPONDENT

(In the matters of Criminal Appeal No. 45-4-2011

Before the High Court of Malaya in Georgetown,Penang)

BETWEEN

PUBLIC PROSECUTOR

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And

MOHD AZAM RAJA BIN ABDULLAH

WRITTEN SUBMISSIONSWRITTEN SUBMISSIONSOF THE PUBLICOF THE PUBLIC

PROSECUTORPROSECUTOR

TABLE OF CONTENTABLE OF CONTENT PAGEAGE1. INTRODUCTION 3

2. THE FACTS OF THIS CASE 5

3. THE ISSUES IN THIS APPEAL 8

3.1 Whether the presence of stolen items

belonging to the deceased indicates that the

respondent is responsible for the death of the

deceased 9

3.2 Whether the appellant succeeded in raising

any reasonable doubt against the murder

charge 22

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4. CONCLUSION 24

If it pleases your Lordships

1. INTRODUCTION

The respondent was charged at the instance of the

Public Prosecutor before the High Court of Malaya

sitting in Georgetown, Penang for an offence of murder

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under section 302 Penal Code and the charge is as

follows

Bahawa kamu pada 2.3.2010, jam lebih kurang di antara 5.00

pagi hingga 9.00 pagi di rumah No. 34, Jalan Gurdwara, di

dalam Daerah Timur Laut, di dalam Negeri Pulau Pinang telah

melakukan kesalahan membunuh Soh Lian Thye [No. KPT

340122-02-5072] dan oleh yang demikian kamu telah

melakukan suatu kesalahan yang boleh dihukum di bawah

seksyen 302 Kanun Keseksaan.

His Lordship, the Learned High Court Judge amended

the charge at the end of the prosecutions case to one

under section 457 Penal Code to the following charge

Bahawa kamu pada 2.3.2010, jam lebih kurang di antara 5.00

pagi hingga 9.00 pagi di rumah No. 34, Jalan Gurdwara, di

dalam Daerah Timur Laut, di dalam Negeri Pulau Pinang telah

melakukan pecah rumah dengan memasuki bangunan

tersebut kepunyaan Soh Lian Thye [No. KPT 340122-02-5072]

yang digunakan sebagai tempat kediaman manusia, untukmelakukan suatu kesalahan tertentu yang boleh dihukum

dengan hukuman penjara iaitu kesaiahan mencuri 3 utas

rantai tangan bernilai antara RM100.00 hingga RM200.00 dan

oleh yang demikian, kamu telah melakukan suatu kesalahan

yang boleh dihukum di bawah seksyen 457 Kanun Keseksaan.

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The amended charge was marked P2A.

P 2A was read and explained to the accused. He

pleaded guilty thereto and understood the nature and

consequences of his plea.

His Lordship found the appellant guilty, convicted and

sentenced him to 14 years imprisonment term with

effect from the date of arrest and also 16 strokes of

whipping.

The Public Prosecutor filed an appeal against the said

acquittal.

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2. THE FACTS OF THE CASE

My Lords

The facts of the case may be surmised as follows

On 2 March 2010 at about 7.30 am, Mr Lim Beng Keong woke up,

and he went down to the ground floor to look for the deceased.

He then tried to open the door at the kitchen of his house to look for

his wife (the deceased) but failed because there was another person

on the other side who blocked the door. He saw a pair of hands of a

dark skinned person holding a piece of wood on the other side of

the door.

Mr Lim became frightened when he saw the pair of hands and

rushed upstairs to his brothers room (Lim Lean Kheong) who was

still asleep and locked the door. He went to the window and cried

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out for help to neighbours and the public that there is a thief in his

house.

Mr Ong Kor Peng who was on duty as a Community Policing Unit

(RELA) at the time, received the information through his wireless

communication set (walkie-talkie) at about 8.30 am of the entry of

the thief into the house. When Mr Ong arrived at the scence of the

incident, he saw the window above the shop house of Mr Lim Beng

Keong and heard Mr Lim crying out for help.

Mr Ong went to the back portion of the shop house to inspect but

found nothing there. When he heard Mr Lim Beng Keongs attempt

to jump through the front window, he went to the front area of the

shop to assist but getting a ladder to help Mr Lim out.

At that time, he also received information that the thief has escaped

but running through the roof of the shop house. Mr Ong ran after

the thief and saw the thief jumping down from the roof of the far

end of the row of linked shop houses. Mr Ong managed to catch the

thief but only after a scuffle because the thief fought back to free

himself.

The thief turned out to be the appellant.

There were blood stains at the elbow and abrasion wounds on his

hands. A physical search on the body of the appellant was made

and an identity card was found which was later surrendered to the

police MPV.

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After the appellant was apprehended, Mr Lim Beng Keong came

down to the ground floor of the house to look for the deceased.

There she was, lying down at the toilet of the ground floor.

The appellant was later taken to Jalan Patani Police Station where

the police made a body search and found a watch and 3 bracelets.

A forensic team was called to the scene of the incident where swabs

were taken of blood traces found and a few other items from the

scene of the incident.

The body of the deceased was brought to the Penang Hospital,

where it was identified by Mr Lim Beng Keong. A post mortem

revealed that that the cause of death was SEVERE HEAD INJURY

DUE TO BLUNT TRAUMA TO THE HEAD.

His Lordship, the Learned High Court Judge found that

the prosecution has failed to prove a prima facie case

against the appellant under section 302 Penal Code but

found that there is prima facie evidence against the

appellant under section 457 Penal Code and His

Lordship, the Learned High Court Judge amended the

charge at the end of the prosecutions case to one

under section 457 Penal Code.

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The amended charge was marked P2A.

P 2A was read and explained to the accused. He

pleaded guilty thereto and understood the nature and

consequences of his plea.

His Lordship found the appellant guilty, convicted andsentenced him to 14 years imprisonment term with

effect from the date of arrest and also 16 strokes of

whipping.

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3. THE ISSUES IN THIS APPEAL

My Lords

The issues may be enumerated as follows

3.1 Whether the presence of stolen items belonging to

the deceased indicates that the respondent is

responsible for the death of the deceased

3.2 the appellant succeeded in raising any reasonable

doubt against the murder charge

We shall address the issues accordingly.

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3.1 Whether the presence of stolen items

belonging to the deceased indicates that the

respondent is responsible for the death of the

deceased

My Lords

The facts of this case is in pari passu to the case of

KRISHNA RAO GURUMURTHI v.

PP AND ANOTHER APPEAL [2009] 2 CLJ 603 where

the finding of the bodies of the first three victims at No.

82, Laluan Tasek Timur 16, Taman Seri Dermawan,

Bercham, Ipoh was the result of the initial investigation

by the police after Harminderjit Singh (PW33) lodged a

police report of what he saw at around 1am on 13

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March 1998. PW33 was on his way for supper when he

was attracted by the sound of the burglar alarm that

went off in the jewellery shop known as Kedai Emas

Chitra. He also saw a Proton Iswara with registration no.

PCV 7749 parked outside the shop with a person inside

seated on the driver's seat. Subsequently two other

persons came out of the jewellery shop. The parked car

then left the vicinity with PW33 following but only to

lose it along Jalan Gopeng. The bodies found were that

of victim 2, the wife of Nalliah Periasamy (PW26) who

was the owner of the jewellery shop, his son victim 1

and the maid, victim 3. All had been brutally killed with

victim 1 and victim 3 tied up with red and yellow fibred

rope. PW26 was away in India at that time attending to

his other son's graduation. On the morning of 12 March

1998 victim 2 and victim 3 came to the shop and were

seen returning home in the evening on the same day.

In the house the police did not find the keys to the shop

which were normally kept by victim 2. However two

blood stained blades (exh. P12A and P24A) which came

from a pair of scissors were found. One of them had its

end broken. Investigation by the police in the shop

revealed that there was no forced entry. But the

padlocks found inside the shop still had the keys

attached to them. All the jewellery in the shop were

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missing. By midday on 13 March 1998 the police

managed to arrest two suspects, namely the 2nd

appellant and the 3rd accused at No. 14A, Lahat Lane,

Ipoh. Subsequently on the same day the 1st appellant

was arrested at Room 502, Hotel Ritz Kowloon, Ipoh.

Two vehicles one of which was seen by PW33 parked

outside the shop the night before were also seized by

the police on the same day . While being questioned by

the police after his arrest the 1st appellant gave certain

information and led the police to the discovery of the

body of victim 4, the watchman of the jewellery shop.

His body was also tied with red and yellow fibred rope.

Cautioned statements from all the arrested persons

were also recorded by the police. However the trial

judge did not admit any of them as evidence. About a

day and the half after he had given his cautioned

statement to the police the 2nd appellant gave certain

information and led the police to the area known as

Baling Bom as it was used by the Police Field Force Ulu

Kinta to dispose of hand grenades. There the police

discovered items of the jewellery that had been

removed from the jewellery shop. Incidentally the 2nd

appellant was previously a member of the Police Field

Force.

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One of the issue was that whether the murder

committed in the cause of a robbery may bring

an inference that the thief is the murderer. The

Federal Court has this, to say, inter alia,

[50] Although there was a reference by the learned trial

judge to s. 114 of the Evidence Act 1950 he was in fact

relating to factual inferences based on the given

circumstantial evidence adduced. In our opinion he was

perfectly entitled to do so. It is not a case of where the

learned trial judge cast upon the appellants, in particular

the 2nd appellant, the burden of proof so that they have to

establish probability in their favour. Neither is it a case of

being merely in possession of the jewellery which made the

2nd appellant guilty for the murders. This is a case of where

the theft and murder are taken as one transaction. As such

it is the cumulative effects of each of the circumstantial

evidence adduced that were considered. We do not find any

error in such approach. After all finding facts by way of

inferences from sets of primary proved facts is a common

task for a trial court. It is trite law that an appellate courtwill not disturb finding of facts of a trial court based on

inferences from primary facts if such inferences, having

regards to the evidence and circumstances, are reasonable.

[51] The Court of Appeal took the same course albeit no

reference to the said section. 'One does not pass from the

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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 aspecific event happened or a specific state of affairs

existed.' (See: Jones v. Dunkel [1958-59] 101 CLR 298).

[52] Learned counsel for the 2nd appellant argued that the

theft and murders should not be taken as one transaction.

Gleaned from that perspective learned counsel contended

that the defence of the 2nd appellant should not even have

been called. Such argument is only plausible if the version

of the 2nd appellant on the event is believed. However the

learned trial judge who had the advantage of listening and

seeing him in the witness box disbelieved it. He gave

reasons for his findings which we do not find unreasonable

or irrational. Thus, being an appellate court we shouldtherefore be slow in disturbing such finding of facts . (See:

Nathan v . Public Prosecutor [1972] 1 LNS 99).

In our instant appeal, the appellant was found by his

Lordship, the Learned Trial Judge to be in possession of

bracelets, belonging to the deceased in the following

words,

However, I am of the considered view that the prosecution has

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succeeded to prove a case of house breaking with the intention to

commit theft and in fact theft of three pieces of bracelets valued

between RM100.00 to RM200.00 was committed, an offence under s

457 of the Penal Code.

The bracelets were seized by the police from the accuseds

right trousers pocket. The bracelets were identified by the

deceaseds daughter, SP 7 as hers. SP 7 kept her costume

jewelleries in the wardrobe in the bedroom, she shared with the

deceased.

I have no doubt, by way of inference that the accused has

entered the deceaseds house at No. 34, Jalan Gurdwara,

Georgetown and stole the said bracelets and thereafter exited from

the said premises. The accused has, therefore, committed house

breaking and theft of three bracelets, an offence under s 457 of the

Penal Code.

By the high authority of

KRISHNA RAO GURUMURTHI (supra) that is, This

is a case of where the theft and murder are taken

as one transaction. As such it is the cumulative

effects of each of the circumstantial evidence

adduced that were considered.... which brings to

the point that the 2 offences are so related that it is not

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reasonable to separate them very much akin to that of

a Siamese twin.

The High Court in PP v. KRISHNA RAO GURUMURTHI

& ORS [2000] 1 CLJ 446, his Lordship, the Learned

High Court Judge has this to say (which was confirmed

by Court of Appeal and Federal Court)

The Law On Presumptions

By themselves the information were incapable of inculpating

the accused with the charges. But in assessing the case for

the prosecution the court is obliged to apply deductive

reasoning to draw such inferences or to arrive at such

factual presumptions as necessary from these information.

The power to do so has always been an integral tool of trade

of a court of law. Nevertheless, in our jurisdiction the power has

been written into our law of evidence in the form of s. 114 of the

Evidence Act 1950which provides as follows:

114. Court may presume existence of certain fact

The court may presume the existence of any fact

which it thinks likely to have happened, regard

being had to the common course of natural

events, human conduct, and public and private

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business, in their relation to the facts of the

particular case.

Illustrations

The court may presume -

(a) that a man who is in possession of stolen

goods soon after the theft is either the thief or

has received the stolen goods knowing them to

be stolen, unless he can account for his

possession;

((b) to (j) i to x not relevant for the present consideration.)

The instances which the court may draw such presumptions are

inexaustive. There is no precedent here in our jurisdiction where a

presumption under the main section of s. 114 is drawn in a case

falling within the factual matrix of this trial, although there is one

where a presumption had been drawn under the provision of

illustration (a) to which I shall revert to later in this judgment

To provide the necessary persuasive authority to make my point

therefore, I have to rely on a series of Indian authorities with

respect to their interpretation of s. 114 of the Indian Evidence Act

1872 which is in para-material with the same section of our own

Evidence Act 1950.

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In RE MADUGULA JERMIAH [1957] AIR Andhra Pradesh 611.

(Subra Rao, CJ and Bhimasankaram, J) the Supreme Court of India

said that:

Section 114 deals with presumptions of fact. The

section enables a Judge to infer one fact from the

existence of another proved fact having regard to the

common course of natural events or human conduct.

The illustrations given to the section are not

exhaustive. The Court may always rely on the main

section in regard to a different set of facts or

combination of facts to draw the presumption

embodied in that section. As the section only enables a

rule of guidance evolved out of human experience, it

gives as option to the Judge whether to draw such a

presumption or not having regard to the circumstances

of each case.

Having said this the Supreme Court went on to hold that:

It is an established rule that, if murder and robbery

form parts of the same transaction, a presumption may

be drawn against the accused for murder if he is found

to be in possession of the jewels worn by the deceased

in the absence of a reasonable explanation by him .

The ruling was however predicated by a strong caution, for thecourt went on to say:

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But as the presumption is one of fact, great care must

be taken before drawing a presumption particularly in

the case of a serious offence on slender material for it

would be a leap in the dark with disastrous

consequences. Unless, therefore, some definite fact

connecting the accused with the murder is established,

the Courts should be chary to draw the presumption of

murder from the mere fact of possession of the articles

worn or in the possession of the deceased.

The rationale for drawing such a presumption however was

explained in another case - in the judgment of Devadoss J (in a

panel of three) in the Madras High Court case of SOGAIMUTHU

PADAYACHI V. KING EMPEROR, ILR 50 Mad 274 (AIR [1926] Mad

638) where he said:

If a person who retires to bed in a normal state of

health is found next morning lying dead and his safe

rifled and his valuables stolen and if it comes to light

that the man did not die a natural death, but was

murdered and that if the property which was in thesafe shortly before the murder is found in the

possession of persons who are unable to account for

them the jury is entitled to draw the inference and the

law requires them to draw the inference that the

persons in possession of such property are not only the

thieves but also murderers. If the persons with whom

the stolen property is found have an explanation to

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offer which explanation if accepted would prove them

to be innocent, it is for them to offer it.

Another Indian case of high authority that may serve to illustrate

the point further is WASIM KHAN V. STATE OF UTTAR PRADESH

[1956] Supreme Court Reports 191. In that case, the deceased, a

shopkeeper had gone to Lucknow to purchase goods for his shop.

Having purchased the goods, on the return journey he engaged the

appellant to carry the goods from the railway station to his village of

Jarwal by using the appellant's cart. Along with the deceased two

other persons also got on the cart.

The cart and the goods did not reach Jarwal which was situated

some distance away from the railway station. The body of the

deceased was found near a bridge the next morning. On the 4th day

of the occurence, following police interrogation, the appellant

handed over the personal belongings including the goods of the

deceased to the police. In his defence the appellant had explained

that three men had come to look for the deceased at the bridge.

The deceased had gone off with them and had asked the appellant

to wait for him at the bridge. When the deceased did not turn up he

decided to take the goods back to his house, and had eventually

handed them over to the police.

The Sessions Court of Bahraich rejected his explanation and

convicted the appellant. On appeal the High Court of Allahabad

upheld the conviction. Upon further appeal the Supreme Court of

India (comprising of B.P. Sinha, Jafer Imam and Chandrasekhara

Aiyar, JJ,) dismissed the appeal. It ruled that:

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Possession of recent and unexplained possession

of the stolen property while it would be

presumptive evidence against a prisoner on the

charge of robbery would similarly be evidenceagainst him on the charge of murder.

In making the ruling, Imam J writing for their Lordships of the

Supreme Court, reviewed a number of Indian authorities. For the

persuasive value that they carry, I propose to reproduce them in

this judgment to illustrate the legitimacy to which the presumption

under s. 114 of the Evidence Act 1950 can be drawn against an

accused who is found in possession of the belongings of a deceased

victim - a fortiorari, where the accused is found with the corpus of

the deceased.

In THE EMPEROR V. SHEIK NEAMATULLA ([1913] 17 CWN 1077)

the accused was found to be in possession of stolen property

belonging to a deceased. Sir Lawrence Jenkins J in that case after

referring to s. 114 of the Indian Evidence Act, approved the

following passage from Wills on Circumstantial Evidence:

possession of stolen goods recently after the loss of

them, may be indicative not merely of the offence of

larceny, or of receiving with guilty knowledge, but of

any other more aggravated crime which had been

connected with theft. This particular fact of

presumption commonly forms also a material element

of evidence in cases of murder; which special

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application of it has often been emphatically

recognised.

In dealing with a similar factual situation in QUEEN - EMPRESS V.

SAMI AND ANOTHER [1890] ILR 13 Mad. 426, the learned judges

of the High Court observed that:

Under these circumstances, and in the absence of any

explanation, the presumption arises that any one who

took part in a robbery also took part in the murder. In

cases in which murder and robbery have been shown

to form parts of one transaction, it has been held that

recent and unexplained possession of the stolen

property while it would be presumptive evidence

against the prisoner against the charge of robbery

would similarly be evidence against him on a charge of

murder. All the facts which tell against the appellant,

especially his conduct indicating a consciousness of

guilt, point equally to the conclusion that he was guilty

as well of the murder as of the robbery ...

In EMPEROR V. CHINTAMONI SHAHU AIR [1930] Cal. 379, the

same opinion was expressed by the High Court that:

The possession of stolen goods recently after the

loss of them may be indicative not merely of the

offence of larceny or of receiving with guiltyknowledge but of any other more aggravated

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crime which has been connected with theft; this

particular fact of presumption forms also a

material element of evidence in the case of

murder.

In fairness to the defence, I must pause here to recall the former

Court of Appeal case of ABDULLAH BIN SAAD V. PUBLIC

PROSECUTOR [1955] 1 LNS 3; [1956] MLJ 92 wherein it was held

that a presumption in respect of the possession of stolen goods

under illustration (a) (as opposed to drawing a presumption under

the main provision) ofs. 114 of the Evidence Act 1950had not been

made out.

In that case the deceased met his death on 15 May 1955. It wasproved that on 16 May 1955 appellant pawned some jewellery

which belonged to the deceased. Apart from this piece of evidence,

there was nothing to connect the appellant with the crime.

Nevertheless the High Court convicted him on murder. On appeal

the Court of Appeal, (Mathew CJ delivering the judgment of the

Court) held that this did not provide sufficient evidence on which to

found a conviction for murder as it was not certain that thejewellery were on the deceased's person on the day of his death.

The appeal was allowed and the conviction was set aside.

The Abdullah bin Saad case was applied by Mohamed Azmi SCJ later

in the Supreme Court case ofNG THIAN SOONG V. PP [1990] 1

CLJ 202 (Rep); [1990] 1 CLJ 1107 [1990] 2 MLJ 148 to reinforce the

already known principle of caution relating to circumstancial

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evidence similar to that enunciated in RE MADUGULA JERMIAH

(supra), wherein at p. 150 His Lordship said:

where the strands of circumstantial evidence

connecting the accused with the crime are capable of

more than one inference, it is not sufficient for the trial

judge merely to tabulate the indirect evidence. He

must go one step further by directing the jury what

other reasonable inferences could be drawn from each

strand of circumstantial evidence, and leaving it to the

jury to decide which inference they wish to adopt. It is

only when the combined strength of these inferences

accepted by the jury when twisted together is strong

enough to constitute proof beyond reasonable doubt

that a finding could be arrived at the guilt of the

accused.

I must admit that the facts in the Indian court cases are not on all

fours with the facts in the present trial. But they serve to

demonstrate the legitimacy of drawing presumptions in similar

circumstances where the accused are implicated through the

production of belongings of persons whom he is accused of killing.

The Abdullah bin Saad case on the other hand can be distinguished

on the facts. In that case the prosecution did not rely on any

information under s. 27 of the Evidence Act 1950. It was relying

merely on the proof that the jewellery was pawned by the accused

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thereby leaving open the question of how he could have come by it.

In the instant trial however, the presumptions that may be drawn

arose not only from the discovery of the body and the jewellery but

also from the information provided by accused themselves.

The Presumptions That Must Be Drawn

The presumption that must be drawn against the 1st

accused unders. 114 of the Evidence Act 1950 from the fact

of the discovery is that he had killed the watchman.

By reason that the same type of strings used to tie the

watchman was similar to the ones used to tie up the boy

and the maid in the house, and considering that their

killings were executed in the same transaction as the killing

of the woman, it must be presumed that he had also killed

the boy, the maid and the woman at the house.

The presumptions that must be drawn against the 2nd accused

under the provision ofs. 114 of the Evidence Act 1950 are that:

(a) that he was in possession of the jewellery;

(b) that he was the person who stole the jewellery

from the locked safe in the shop;

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(c) that he had killed the watchman as the stolen

jewellery was at that time in the control of the

watchman;

(d) that he had also killed the woman in the house as

to obtain the jewellery in the shop he must first obtain

the key to the safe which had always been in the

possession of the woman deceased in the house. This

is clear from the evidence of Nalliah the owner of

Chitra Jewellery (PW26).

(e) that he had also killed the boy and the maid in the

house as their killings were in the same transaction.

His Lordship held that " The presumption that must

be drawn against the 1st accused under s. 114 of

the Evidence Act 1950 from the fact of the

discovery is that he had killed the watchman. Byreason that the same type of strings used to tie

the watchman was similar to the ones used to tie

up the boy and the maid in the house, and

considering that their killings were executed in

the same transaction as the killing of the woman,

it must be presumed that he had also killed the

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boy, the maid and the woman at the house.... is

the reason the interwining of the 2 facts together that

cannot be ignored by choice or otherwise.

At the risk of being repetitive, the Federal Court

reiterated This is a case of where the theft and

murder are taken as one transaction. As such it

is the cumulative effects of each of the

circumstantial evidence adduced that were

considered.... which conclude in our instant appeal

that the appellant is indeed the murderer.

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3.2 the appellant succeeded in raising any

reasonable doubt against the murder charge

My Lords

In MUNIANDY A/L SUBRAMANIAM V PUBLIC

PROSECUTOR [2006] 6 MLJ 623, a decision of the

Court of Appeal and affirmed by the Federal Court

recently, it was held at page 638 para F, inter alia:

An appeal is merely a continuation of the trial and throws

open all the evidence to re-examination in order to

determine whether or not the various findings of the trial

court are correct(see Tan Boon Teck v Public Prosecutor [1950]

MLJ 44).

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MOHD JOHI SAID & ANOR V PP [2005] 1 CLJ 389 ,

His Lordship Court of Appeal Justice Gopal Sri Ram

stressed at page 397 para d, inter alia:

Unlike civil appeals, where the appellant carries the burden

of showing that the judge at first instance went wrong, in a

criminal case the duty of the court is to consider whether

the conviction is right. The correct approach is therefore not

whether the decision is wrong but whether the conviction is

safe...(Emphasis ours)

In view of the fact that the offence committed by the

Respondent was one of murder and applying the

principles as enunciated by the cases aforesaid, the

public interest would warrant that this appeal to be

heard on its merits

We ask my Lords to do likewise.

4 CONCLUSION

My Lords

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We cannot do better than quote the case of RAMLI

KECHIK V. PUBLIC PROSECUTOR [1986] 1 CLJ 308,

where the Supreme Court quoted the case of Reg v

Sang to explain justice in a criminal trial, inter alia,

...Lord Goddard's dictum could not be understood by many but it

was restored to its rightful position by Lord Diplock in Reg. v. Sang

[1980] AC 402 at 437 where in delivering the main judgment of the

House of Lords he held at p. 437:

Save with regard to admissions and confessions and generally with

regard to evidence obtained from the accused after commissions of

the offence, the Judge has no discretion to refuse to admit relevant

evidence on the ground that is was obtained by improper or unfair

means.

Earlier on, at p. 436, His Lordship also made the following statement

on the constitution of a fair trial:

... the fairness of a trial according to law is not all one-

sided; it requires that those who are undoubtedly guilty

should be convicted as well as that those about whose guilt

there is any reasonable doubt should be acquitted.(emphasis

ours)

My Lords

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The evidence against the respondent is just

overwhelming.

We ask this Honourable Court to set aside the order of

discharge and acquittal by the High Court and order

that the respondent to enter on his defence on the

original charge under Section 302 Penal Code

With that, we rest our submissions, unless we can be of

further assistance to your Lordships.

Much Obliged

Datedat the Federal Territory of Putrajaya this 18th day

of April in the year 2013

By the authority of the Public Prosecutor,

AWANG ARMADAJAYA BIN AWANG MAHMUD

Deputy Public Prosecutor

M A L A Y S I A

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The address for service of the Respondent is: ThePublic Prosecutor, Appellate and Trial Division,5th Floor, Attorney Generals Chambers, Block4G7, Precinct 4, The Federal GovernmentAdministrative Centre, 62100 Putrajaya

mohd azam raja-submissions coa

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