MALAYSIA FEDERAL COURT AT KAULALAMPUR
Raja Aslam Shah, L.P., Abdul Hamid, F.J. & Abdoolcader, F. J.
Dato Mokhtar Bin Hashim and another -Appellant
versus
Public Prosecutor -Respondent
Criminal Appeal Nos. 10 and 11 of 1983
Decided on 23.7.1983
Mr. Jagjit Singh (Encik Abdul Mutalib and Encik Abu Zahar Ujang with him), M/s. Jagjit Singh and Co.-For the 1st Appellant.
Mr. Manjeet Singh Dhillon (Mr. Lawrence Perera with him). Mis. Manjeet Singh Dhillon and Co.-For the 2nd Appellant.
Tan Sri Abu Talib bin Othman, Public Prosecutor (Mr. T.S. Sambanthamurthi, D.P.P., with him)-For the Respondent.

IMPORTANT POINTS
(i) Confessional statement of an accused to be admissible must be voluntary.
(ii) Station diaries are admissible under section 35, Evidence Act.
(iii) Voluntariness of confession is a question of fact.
(iv) In order to base conviction on circumstantial evidence, it must point to one conclusion only, i.e., guilt of the accused.
(v) Credibility of a witness is primarily a matter for the trial Judge
(vi) If a witness turns hostile and the court allows prosecution to put questions to him to impeach his credit, the court cannot immediately order impeaching him and disallow accused's counsel to cross-examine him.
(vii) Signature or handwriting of a person can be proved by circumstantial evidence.
(viii) Demeanour of an expert witness is an important fact to be taken into consideration.
(ix) In case of plea of alibi the burden lies on the accused to prove it, but still burden of proving guilt of the accused always lies on the prosecution.
(x) A counsel conducting a case is to act fearlessly, but within bounds of propriety.

Headnote:(i) Criminal trial-Accuseds' confessional statement to be admissible must be voluntary.

       Held that any statement made by an accused person to be admissible must be voluntary and any other construction would be tantamount to subverting a basic right of an accused and give greater stringency to the Regulations than would be warranted or justified in our system of criminal jurisprudence. (Para 8)

       Held further that the classic test of the admissibility of an accused's confession that the prosecution must establish beyond reasonable doubt that it was voluntary, in the sense that it was not obtained from him either by fear or prejudice or hope of advantage created by a person in authority, or by oppression, should be applied in a manner which is part objective, part subjective.

       (ii) Evidence Act, 1872 - Section 35-Station diaries admissible under section 35 being entries in official books or registers stating facts in issue or relevant facts and made by public servant in the discharge of his official duty.

       Held further that as observed by Privy Council in A.I.R. 1917 P.C.197, it in the case of official documents admissible in evidence under section 35 of the Indian Evidence Act (which is in pari materia with ours), it could be shown that any particular part was in excess of the official duty by reason of which it came into existence, that part might not be admissible. The lock-up register however is clearly admissible under section 35 of the Evidence Act as it is a journal within rule 34(2) of the Lockup Rules, 1953, and the lock-up register produced has cross-references to entries in the station diaries, this correlation would therefore make all the relevant entries in the station diaries admissible as they would form part of the lock-lip register and the two must therefore be read conjointly. When it is the duty of a public officer to make some entries in any public or other official book it is admissible in evidence to prove the truth of the fact entered as well as the fact that the entries were made by him although their authenticity be not confirmed by the usual test of truth, namely, the swearing and cross-examination of the person who prepared them. In any event all the entries were put to Inspector Aziz who, confirmed them and they accordingly formed part of the evidence before the learned judge in the voir dire. (Para 10)

       (iii) Criminal trial-Voluntaries of confession, question as to- When can it be interfered with.

       Held that it is open to an appellate Court to interfere with the finding on a question of fact as to the voluntaries of a confession if the impugned finding has been reached without applying the true and relevant legal tests and consideration of relevant matters. (Para 13)

       Held further that long hours and odd hours of interrogation are suggestive of oppression. (Para 15)

       (iv) Criminal trial-Entire prosecution case resting on illegal confessional statement-Statement not voluntary-Accused not to be called for defence and to be acquitted. (Para 20)

       (v) Criminal trial- Circumstantial evidence basis of prosecution case-Evidence must point to one conclusion only, i.e., guilt of accused.

       Held that where circumstantial evidence is the basis of the prosecution case the evidence proved must irresistibly point to one and only one conclusion. In guilt of the accused, but in a case cried without a jury the failure by the Court to expressly state this is not fatal and it would suffice if it merely says that it is satisfied as to the guilt of the accused beyond reasonable doubt. (Para 22)

       (vi) Witness, creditability of-Creditability primarily matter for Trial Judge Appellate Court, when to interfere?

       Held that, as observed by the Privy Council in (1936) M.L.J. 137, the functions of an appellate court, when dealing with a question of fact, and a question of fact in which questions of credibility are involved, are limited in their character and scope, and that in an appeal from a decision of a trial Judge based on his opinion of the trustworthiness of Witnesses whom he has seen, an appellate Court must in order to reverse, not merely entertain doubts whether the decision below is right but be convinced that it is wrong. (Para 26)

       (vii) Evidence Act, 1872 - Section 155(c)-Application for - production of statement made by accused before police to impeach his credit-Application to be made not on mere hunch of counsel, i.e., vague expectation of counsel-'Hunch' explained.

       Held that a ‘hunch' is a presentiment, a mental impression or feeling, a vague expectation or foreboding, and we would like to make it abundantly clear that the ‘hunch' referred to in Husdi's case (1980, 2 M.L.J. 80) certainly could not have been intended to operate without some secure basis or foundation in order to activate the provisions of sections 145 and l55(c) of the Evidence Act, and for this purpose sheer innate intuition of counsel will not suffice. A mere hunch per se for this purpose is nihil and rem, it must be secured on a substratum of some basis or foundation. There must as a sine qua non be some material contradiction or other circumstances unexplained by the witness in the first instance before counsel can move to seek to impeach his credit. (Para 25)

       (viii) Witness, examination of-Witness turning hostile-Public Prosecutor allowed to impeach his credit-After examination in chief by Public Prosecutor, can the Judge immediately make order impeaching his credit and disallow cross examination to counsel for all accused? (No).

       Held that when a witness's credit is sought to be impugned under the provision of sections 145 and 155(c) of the Evidence Act his credit stands to be assessed as a whole with the rest of the evidence at the appropriate stage, that is to say, at the close of the case for the prosecution or for the defence, as the case may be. No immediate order of a summary nature can or should be made as was done in this case and the right of cross-examination or re-examination according to the circumstances should not be denied as it may well be that on the exercise of such right his credit might be repaired, restored or re-established. (Para 27)

       (ix) Signature or handwriting of a person-Can it be proved by circumstantial evidence? (Yes)

       Held that the signature or handwriting in a document may be proved by circumstantial evidence if that irresistibly leads to the inference that the person in question must have signed or written it. (Para 32)

       (x) Expert Witness-Relative va1ue of testimony of expert witness as compared with witness of fact-Demeanour of expert witness is important factor and trial court is better position to assess value of his evidence.

       Held that in Caldeira v. Gray (1936) M.L.J. 137 (at page 138) the Privy Council said that in assessing the relative value of the testimony of expert witnesses, as compared with witnesses of fact, their demeanour, their type, their personality, and the impression made by them upon the trial Judge, e.g., whether they confined themselves to giving evidence, or acted as advocates-may powerfully and properly influence the mind of the judge who sees and hears them in deciding between them and that these advantages, which are available to the trial Judge, are denied to an appellate Court. In Joyce v. Yeomans (1981) 1 W.L.R. 549, the English Court of Appeal held that in the case of evidence given by experts, the trial Judge, who had observed the demeanour of the witnesses, was in a significantly better position than an appellate Court to assess the value of the evidence given, and accordingly the appellate Court should be slow to interfere with the Judge's findings. (Para 36)

       Held further that in consonance with the principle enunciated by the Privy Council in Caldeira v. Gray (ante) and in view of conflicting literature on the subject referred to by both sides, we see no reason to interfere with the learned Judge's findings with regard to Fassnacht's evidence. It is open to a Court to prefer the evidence of one expert to that of another and it would not be improper to act on the opinion of one expert although that is contradicted by another expert. (Para 51)

       (xi). Expert witness- For a training not necessary-Expert knowledge may be acquired through experience.

       Held that one can acquire expert knowledge in a particular sphere through repeated contact with it in the course of one's work, notwithstanding that the expertise is derived from experience and not from formal training. (Para, 37)

       (xii) Firearms apart-Value of his opinion.

       Held, that where a firearms expert has made the necessary tests and there is no reason for distrusting his opinion, which in fact in this case the Court has accepted, there can be no room for thinking in the circumstance established that anyone else other than the accused might have shot the deceased. (Para 41)

       (xiii) Criminal trial-Plea of alibi Bardeu lies on accused-Still burden of proving guilt always remains on prosecution.

       Held, that as observed by the Supreme Court of India in Gurcharan Singh v. State of Punjab, A.I.R. 1956 S.C. 440, the burden of proving an alibi undoubtedly lies on the accused setting up the defence but even so, the burden of proof as to the guilt of the accused always remains on the prosecution irrespective of whether or not the accused has made out a plusible defence. In Public Prosecutor v. Chidambaram & another, A.I.R. 1928 Mad. 791 it was held (at page 793) that alibi evidence should be scrutinized very carefully, for it is easy to set up an alibi and not always easy to prove it, and it must be definitely proved in order to suffice for the rebuttal of a case made out by the prosecution. (Para 44)

       (xiv) Criminal trial-Motive, relevancy of-

       Held that although motive is not a necessary ingredient to be established in the offence of murder, it would if shown tend to support the case against an accused so charged. (Para 54)

       (xv) Counsel, duty of-Counsel to act fearlessly but within bounds of propriety.

       Held, that it is of course the duty of counsel to act fearlessly and with all the force and vigour at their disposal in the interest of the cause they represent but wholly with in the bounds of propriety and courtesy in the discharge of their duties as officers of the Court but they must equally remember that in the discharge of their duties they must judiciously use the right and privilege of appearing as such in Court and not abuse it. (per Addoolcader, J. in Re Kumaraendran (1975) 2 M.L.J. 45 (at page 48). If it can be clearly shown that a judicial was prejudiced or biased or otherwise conducted himself in an improper manner in consonant with accepted standards in the administration of justice, then it will certainly be open for the point to be taken. (Para 60)