Zulkefli Makinudin FCJ:

Introduction

[1] The appellant was charged in the High Court at Shah Alam on the following two charges:

First Charge

Bahawa kamu pada 14 Jun 2003, antara jam lebih kurang 1.00 pagi hingga 5.00 pagi, di Batu 7, Jalan Klang Lama, di dalam daerah Petaling, dalam negeri Selangor Darul Ehsan telah melakukan bunuh dengan menyebabkan kematian ke atas Ong Lay Kian (P) (KP No 740718-08-5204) dan oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 302 Kanun Keseksaan.

Second Charge

Bahawa kamu pada 14 Jun 2003, antara jam lebih kurang 1.00 pagi hingga 5.00 pagi, di Batu 7, Jalan Klang Lama, di dalam daerah Petaling, dalam negeri Selangor Darul Ehsan telah melakukan rogol ke atas Ong Lay Kian (P) (KP No 740718-08-5204) dan oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 376 Kanun Keseksaan.

[2] The learned judge of the High Court found the appellant guilty and convicted him on both charges. He was sentenced to death for the offence under s 302 of the Penal Code and was sentenced to twenty years imprisonment and ordered to be given 20 strokes of the rottan for the offence under s 376 of the Penal Code. He appealed to the Court of Appeal against the decision of the High Court. The learned judges of the Court of Appeal dismissed the appeal and affirmed the conviction and sentence in respect of both the charges. Being dissatisfied with the decision, the appellant now appeals to this Court against the whole decision of the Court of Appeal.

The Case For The Prosecution

[3] The evidence adduced by the prosecution from the relevant prosecution witnesses may be summarized as follows:

[4] On the night of 13 June 2003, Pearly a/p Visvanathan (PW3) together with her two daughters, Ong Lee Cheng and Canny Ong Lay Kian ("the deceased") had dinner together with friends of the deceased at Restoran Monte, Bangsar Shopping Centre (BSC) as a farewell for her before she returned to the United States on 14 June 2003. They went to BSC in a Proton Tiara bearing registration number WFN 6871 ("P145"). They arrived at BSC at about 8.30pm and had dinner there until about 10.30pm. When they were ready to leave, the deceased went to the basement car park alone to take the parking ticket which was left behind in the car P145 to make payment at the autopay station at the lower floor of BSC. PW3 and her other daughter, Ong Lee Cheng waited for the deceased at the lower floor PW3 waited for about twenty minutes but the deceased still did not show up and when Ong Lee Cheng called the deceased's mobile phone, no answer was received and the call went to "voice mail". PW3 and Ong Lee Cheng then went down to the basement but failed to find the deceased. PW3 also discovered that their car P145 was not there. PW3 then lodged a report with a BSC guard, PW10 and later lodged a police report P10.

[5] On the same day, at about 11.15pm L/Cpl Ravichandran a/l Subramaniam (PW4), a police officer together with a colleague were on crime prevention patrol duty at the Taman Perindustrian Jaya, Kelana Jaya area near Subang. There, PW4 noticed that a car had stopped beside the roadside. Half an hour later, PW4 and his colleague passed the same route again and noticed that the car P145 was still there. PW4 and his colleague stopped their motorcycle. PW4 then knocked on the glass window on the driver's side of the car P145. When the glass window was lowered, PW4 saw that the driver was a male Malay and on the passenger seat was a female Chinese. PW4 shone his flashlight towards both of them and introduced himself as a police officer and showed them his authority card. PW4 then asked for the identity cards of the driver and the passenger When the driver gave his identity card (P12), PW4 shone his flashlight at the identity card and asked the driver for his name. The driver answered that his name was Ahmad Najib bin Aris. PW4 then looked at the identity card (P11) given by the passenger and asked "awak