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2011 MarsdenLR 2206
HIGH COURT MALAYA KUALA LUMPUR
PP – Appellant
Versus
AUNG TUN & ANOR – Respondent
[Criminal Trial No: 45-125-2004]
The court emphasized the necessity for the prosecution to prove guilt beyond a reasonable doubt, confirming the existence of common intention between accused to commit murder.
Headnote:(A) Penal Code - Section 302 - Murder charge - Two accused jointly charged with the common intention of murder resulting in the death of the deceased. Prosecution established a prima facie case based on testimonies of eleven witnesses, leading to a conviction upheld due to lack of reasonable doubt. (Paras 1-4, 76-106)
(B) Criminal Procedure Code - Section 180 - Requirement of prosecution to prove guilt beyond reasonable doubt - Defense failed to cast doubt on the prosecution case; accused’s testimonies deemed incredible. Findings supported by consistent eyewitness accounts, leading to a conviction. (Paras 4, 76)
(C) Common Intention - Section 34 - Essential for attributing culpability; evidence suggested pre-arranged plan among accused, demonstrating shared intent to kill. (Paras 102-105)
Facts of the case:
Two accused charged with murder following attack on the deceased arising from a dispute over car repairs. Prosecution witnesses identified both accused as attackers, connecting them to the fatal injuries inflicted upon the deceased.
Findings of Court:
Both accused found guilty of murder, sentenced to death as per Section 302 of the Penal Code.
Issues: The main issues included evidence sufficiency to establish identity and culpability of the accused, alignment with statutory definitions of murder.
Ratio Decidendi: Court highlighted that affirmative eyewitness testimony was credible and corroborative of intent to kill, with evidence showing consistent roles played by both accused in execution of the crime.
Result: Accused sentenced to death.
| Table of Content |
|---|
| 1. 1st accused's defense and statements presented. (Para 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60) |
| 2. 2nd accused's defense and statements presented. (Para 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74) |
| 3. assessment of evidence and credibility. (Para 75 , 76) |
[37] In his defence the 1st accused said that he wanted to buy a used car from Mahmud. On 15 October 2003, ie the day that the deceased was stabbed, the 1st accused was at the Kuala Lumpur International Airport. At 4 p.m. he received a phone call from Mahmud who asked the 1st accused to meet up with him at 6.30 p.m. in connection with the 1st accused's desire to buy a used car from him. At 6.30 p.m. he met up with Mahmud at Mahmud's workshop. Mahmud showed him several used cars but the 1st accused found them to be rather expensive. He also did not like any of the cars. He then saw Mahmud's car which he liked. Mahmud wanted to sell it to him at RM4,000.00. But the 1st accused saw that it had many dents and scratches.So he bargained with Mahmud who then agreed to sell it to the 1st accused at the reduced price of RM2,500.00.
[38] Mahmud then informed him (the 1st accused) that he (the 1st accused) had to personally arrange with the deceased to have the dents and scratches smoothened out and plastered before he (Mahmud) could arrange to have the whole car repainted. The 1st accused refused to deal with that aspect and wanted Mahmud to liaise with the deceased to have it attended to because he wished to pay and collect the car from Mahmud without having to do that himself. However, Mahmud declined. He explained to the 1st accused that he was on bad terms with the deceased. This has caused the deceased to refuse to accept damaged cars from Mahmud for knocking resulting in Mahmud having to find another panel beater to attend to his damaged cars. So he asked the 1st accused to deal directly with the deceased.
[39] The 1st accused explained that Mahmud's business involved the spray painting of repaired damaged cars whereas the deceased's business involved the knocking out of the dents and attending to the scratches on the damaged cars before the cars could be spray painted.
[40] The 1st accused then went to the deceased's workshop. He met a young boy whom he later identified as PW2. He told PW2 that he wished to have the dents and scratches of his car attended to. PW2 called his father. About 5 minutes later, the deceased came to the workshop. PW2 introduced the deceased to him as a panel beater. He greeted the deceased and shook the deceased's hand. He also introduced himself to the deceased.
[41] The deceased asked him where the car was. He showed the car to the deceased. Upon seeing the car the deceased recognized it as Mahmud's car. The deceased told the 1st accused he did not wish to do the job. The 1st accused pleaded with the deceased to repair the car which he had bought from Mahmud on the basis that he and the deceased were both from Myarmar and that he could not get anyone else to repair the car except the deceased. But the deceased refused. He then left the 1st accused and went to speak to a woman whom the 1st accused later identified as PW3. He said he recognized PW3 because 2 months before the incident the deceased, Mahmud and PW3 had gone to his house in Setapak.
[42] The 1st accused then followed the deceased and pleaded with the deceased to do the job but the deceased shouted at him and told him he did not want to help him out because the car belonged to Mahmud.
[43] On top of that the deceased also slapped him. The deceased then grabbed a cangkul and wanted to use it to hit the 1st accused. But the 1st accused managed to catch hold of the cangkul to avoid being hit by the cangkul. There was a struggle between the both of them.
[44] At this juncture many people at the workshop shouted at them so both of them let go of the cangkul. PW3
