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2017 MarsdenLR 370
COURT OF APPEAL (PUTRAJAYA)
AHMADI HAJI ASNAWI, JJCA, ROHANA BINTI YUSUF, J, AZIAH BINTI ALI, J
Mohamad Zul Shahril bin Suhaimi – Plaintiff
Versus
Public Prosecutor and other – Defendant
CRIMINAL APPEAL NOS B-05-318-11/2014, B-05-319-11/2014 AND B-05320-11/2014
Afifuddin Hafifi (Salehuddin Saidin & Associates) for the first appellant.
Aminuddin b Mohd Ramli (Aminuddin & Co) for the second appellant.
Fadhli Sutris (Fadhli Sutris & Badrul Munir) for the third appellant.
Mangai (Timbalan Pendakwa Raya, Jabatan Peguam Negara) for the respondent.
The court affirmed convictions under Section 302, finding compelling evidence of common intention among the accused in the premeditated murders, despite challenges over witness credibility and technicalities in charges.
Headnote:(A) Penal Code - Section 302 - Criminal Procedure Code - Section 165 - Conviction and death sentences for murder - The appellants together plotted and killed two individuals during a home invasion linked to missing valuables - The court addressed the evidentiary sufficiency and the existence of common intention amongst the accused (Paras 28, 39, 46).
(B) Criminal Evidence - Accomplice testimony - Sufficient corroboration exists to uphold guilty findings against accused based on witness' reliable testimony (Paras 51, 54).
Facts of the case:
The 1st, 2nd, and 3rd appellants were charged under Section 302 of the Penal Code for murdering Omar Peter and Zara Eleena in a planned act involving multiple participants. The 4th accused was initially acquitted but recalled to face trial based on the prosecution's appeal.
Findings of Court:
The court upheld the convictions and death sentences for the three appellants, underscoring the existence of a premeditated plan established through extensive witness testimony and corroborative evidence (Paras 47, 70).
Issues: The primary issues involved the sufficiency of evidence against the accused, the credibility of the accomplice witness, and whether a prima facie case was established regarding the charges (Paras 28, 35).
Ratio Decidendi: The court concluded that despite some contradictions in witness testimony, the overall evidence remained compelling, with established common intention among the accused at crucial moments during the offenses (Paras 39, 46).
Result: Appeals dismissed; convictions and sentences affirmed.
| Table of Content |
|---|
| 1. overview of acquittal and appeals (Para 1 , 2 , 3) |
| 2. sequence of events leading to the murders (Para 4 , 8 , 10 , 12 , 13 , 14 , 15 , 20 , 21) |
| 3. execution of the murder plan (Para 17 , 18 , 19 , 22 , 25) |
| 4. arguments on legal charges (Para 27 , 30 , 34) |
| 5. evaluation of witness credibility (Para 46 , 49 , 52) |
| 6. assessment of cause of death (Para 62 , 66 , 68 , 72) |
| 7. conclusion on appeals (Para 73 , 74) |
Ahmadi Haji Asnawi JCA:
JUDGMENT
[1]In the court below, the appellant in Criminal Appeal No. B-05-318- 11/2014 (the ‘1st accused’), the appellant in Criminal Appeal No. B-05- 319-11/2014 (the ‘2nd accused’) the appellant in Criminal Appeal No. B- 05-320-11/2014 ( ‘3rd accused’) and one Mohammed Safwan bin Mohamad, the 4th accused, were charged and tried with the commission of an offence under s.302 Penal Code ( PC )
[2]The 4th accused, was acquitted and discharged of both the cases at the end of the prosecution’s case. An appeal was lodged by the Public Prosecutor vide Criminal Appeal No. B-05-271-09/2014, which was heard together with these appeals. We allowed the appeal and ordered the 4th accused to enter his defence upon the charge proferred against him in case No. 45B-222-10/2012 before the same learned trial judge. The decision of the learned judge in case No. 45B-221-10-2012 against the 4th accused is affirmed.
[3]This is our judgment in relation to the three appeals of the appellants. For the purposes of this judgement, the 1st, 2nd and 3rd appellants will be referred to as they were in the trial before the learned trial judge i.e. the 1st , 2nd and 3rd accused respectively.
[4]The appeals by the 1st, 2nd and 3rd accused persons were in respect of their convictions and the death sentence imposed on them upon the following charges:
(i)In case No. 45B-221-10/2012 the charge read:
“Bahawa kamu bersama-sama, pada 8 Mac 2012 lebih kurang 11.30 malam hingga 9 Mac 2012 jam lebih kurang 1.30 pagi, bertempat di rumah No. 28, Jalan TK 1/11, Taman Kinrara, Puchong di dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan, telah bersama-sama melakukan kesalahan membunuh iaitu menyebabkan kematian ke atas Omar Peter bin Abdullah (No. KP: 551113-07-5297) dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302, Kanun Keseksaan dan dibaca bersama seksyen 34 Kanun Keseksaan”.
(ii)In case No. 45B-222-10/2012 the charge read:
“Bahawa kamu bersama-sama pada 9 Mac 2012 jam lebih kurang 1.30 pagi sehingga 2.30 pagi, bertempat di rumah No. 28, Jalan TK 1/11, Taman Kinrara, Puchong di dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan, telah bersama-sama melakukan kesalahan membunuh iaitu menyebabkan kematian ke atas Zara Eleena binti Omar Peter (No. KP: 891203-14-5990) dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302, Kanun Keseksaan dan dibaca bersama seksyen 34 Kanun Keseksaan”.
[5]The two cases were jointly tried before the High Court pursuant to s.165Criminal Procedure Code
[6]We dismissed the appeals after due considerations of the facts and issues raised.
[7]We now give our grounds.
The Case For The Prosecution
[8]The deceased Sara Eleena binti Omar Peter was the daughter of the deceased Omar Peter. Meanwhile, PW-4 (Normaliah binti Mahmood) was the wife of the deceased Omar Peter and the mother of the deceased Zara Eleena binti Omar Peter. The family had lived in house No. 28, Jalan TK 1/11, Taman Kinrara, Puchong, as intimated in the two charges. However, a few days prior to 11.3.2012, PW-4 had gone back to her kampung in Segamat, Johor, leaving behind her husband and daughter, as part of the ritual of the traditional treatment conducted by the 1st accused upon her, allegedly to purge spirits/ghosts (‘hantu’) controlling/residing in her jewelleries.
[9]On 11.3.2012 at about 10.36 a.m., PW-4 had lodged a police report at Balai Polis Segamat when she could not communicate with either her husband or daughter several days before that. Her last commun
