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2021 MarsdenLR 3830
HIGH COURT SABAH & SARAWAK KOTA KINABALU
ARSIN TAULAH & ORS – Appellant
Versus
PP – Respondent
[Criminal Appeal No: BKI-42 AC-2/2-2019]
The appellate court upheld the conviction for culpable homicide based on credible eyewitness identification, affirming the trial court's ruling under the Turnbull Guidelines.
Headnote:(A) Penal Code – Section 304(a) – Culpable homicide not amounting to murder – Conviction and sentence of 20 years' imprisonment upheld for the 1st, 2nd, and 3rd Accused for causing death during a fight. Court finds identification evidence credible under Turnbull Guidelines. (Paras 1, 11, 39, 41)
(B) Appellate Review – An appellate court should defer to the trial court's findings of fact and assess whether the alleged errors are substantial before intervening. (Paras 11, 42)
Facts of the case: The accused were involved in a fatal fight with the deceased, who was argued with regarding unpaid wages. They were convicted based primarily on identification evidence.
Findings of Court: The Court found the identification reliable and affirmed the trial court's conviction and sentence.
Issues: The accuracy and reliability of identification evidence and whether the trial judge misapplied the law.
Ratio Decidendi: The court confirmed the adherence to Turnbull Guidelines in assessing eyewitness identification as adequate for conviction.
Result: Appeal dismissed.
JUDGMENT
Introduction
[1] The Appellants in this case are appealing against the conviction and sentence handed down by the learned Session Court Judge on the 21 February 2019 for an offence under s 304(a) of the Penal Code .
[2] For the convenient of reference, the parties will be referred as they were in the Sessions Court. The 1st Accused is Madjuri Bin Sayadi, 2nd Accused is Jefri Bin Amri and 3rd Accused is Asrin Bin Taulah.
[3] The Charge preferred against the 1st, 2nd and 3rd Accused are as follows:
"Bahawa kamu, bersama empat orang yang masih bebas, pada 27 Oktober 2016, jam lebih kurang 12.00 malam, bertempat di Hadapan Rumah Kongsi, kawasan pembinaan SMK Kanibongan, di dalam Daerah Pitas, di dalam Negeri Sabah, dalam mencapai niat bersama, didapati telah melakukan perbuatan mematikan orang dengan salah yang tidak terjumlah kepada kesalahan membunuh orang ke atas penama Alih Bin Asimudin, KPT/Passport: Tiada, Umur: 52 tahun, B: Bajau dan oleh yang demikian, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 304(a) Kanun Keseksaan dan dibaca bersama s 34 Kanun yang sama."
Brief Facts
[4] On the 21 February 2019, the learned Session Court Judge had convicted and sentenced the 1st, 2nd and 3rd Accused to 20 years' imprisonment with effect from 28 October 2016. The salient fact as set out by the learned Session Court Judge is reproduced herein.
a) On the 26 October 2016 at around 3.30 pm, the Deceased together with PW 9 came to the rumah kongsi of the building site of SMK Kanibungan, Pitas to speak to the 10 workers including the 1st, 2nd and 3rd Accused, about the payment of their salary of RM2,000.00 which has not been paid to them by the Deceased. There were arguments as the Deceased could not pay the salary and only offered RM50.00 as a loan to each person on condition they continued the work which was not agreed by the 1st, 2nd and 3rd Accused and the other workers. The Deceased and PW 9 left shortly and only three (3) workers borrowed the RM50.00.
b) Later that night the Deceased together with PW 8 and PW 9 headed again to the building site of SMK Kanibungan, Pitas with two (2) parangs and one (1) samurai sword. They arrived after midnight on 27 October 2016 around 12.10 am and straight away headed to rumah kongsi A10, belonging to the 1st Accused, each holding weapons. A fight then erupted between them and seven (7) workers. During the fight, the Deceased was severely injured and died whilst PW 8 was hiding. PW 9 was injured but managed to escape from the crime scene.
c) PW 11 arrived at the crime scene together with Kpl Micheal, Sgt Rahmat, and Kpl Jaidin at 2.45 am. to 3.00 am., where he met PW 8 who identified the Deceased as his father. Three (3) metal rods were found at the crime scene and were sent to the Chemist Department. PW 8 made a police report with regard to the incident on 28 October 2016.
d) Acting on the report and instruction from ASP Rohana, PW 11 went to Wad Kecemasan Kota Marudu and met PW 9.
e) On 28 October 2016 around 8.15 am, the 1st and 2nd Accused together with the 1st Accused's wife, daughter and two (2) children were arrested by PW 4. They were brought to IPD Kota Marudu where two (2) women and two (2) children were handed over to PW 11 and released without questioning. The 3rd Accused was also arrested on the same day.
f) During the identification parade conducted on the 3 November 2016, both PW 8 and PW 9 identified the 1st, 2nd and 3rd Accused as persons involved in the Deceased's death.
[5] It is noted here that PW 8 Mohd Zain Bin Alih and PW 9 Azzumar Bin Alih are the sons of the Deceased and PW 11 Insp Mohd Zulkariri Bin Md Daud is the Investigating Officer in this case.
[6] At the defence stage, the 1st, 2nd and 3rd Accused gave their evidence on oath and they are the only witnesses for their own defence.
[7] The 1st Accused (DW 1) denied that he had attacked the Deceased using parang and besi. He explained that he was at 'atas bukit' when he heard the Accused, P
