Hasan Lah JCA

INTRODUCTION

The appellant was charged in the High Court, Pulau Pinang with the offence of murder under s 302 of the Penal Code

Bahawa kamu pada 24.4.2006, antara jam lebih kurang pukul 1.30 petang dan 3.00 petang, di alamat 65A, Jalan Masjid Kapitan Keling, di dalam Daerah Timur Laut Negeri Pulau Pinang, dengan niat telah melakukan kesalahan bunuh hingga menyebabkan kematian ke atas Leong Chin Meng (No. K/P: 571127-07-5771), dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 302Kanun Keseksaan

At the conclusion of the trial the learned trial judge convicted the appellant for murder. The appellant appealed against his conviction and we allowed his appeal and set aside his conviction. We hereby give our reasons for doing so.

THE FACTS

The facts showed that the deceased operated a business dealing with antiquated items such as old coins, stamps and other artefacts. The business was carried out in the name and style of Leong Stamps Co in a premise at No65–A, Jalan Masjid Kapitan Keling, Penang (‘the said premise’).

There was a collapsible grill at the entrance of the said premise. The upper floor of the said premise was utilised as an accommodation for the deceased and his sister, PW4.

On 24 April 2006 when PW4 returned to the said premise from work at around 3.30pm she found the collapsible grill locked. She also saw the appellant seated on a chair in the business area of the said premise. The appellant was seen scrapping a drawer of a particular table with a screwdriver.

PW4 screamed at the appellant and questioned him on the whereabouts of her brother, the deceased. The appellant, appeared pale and perspiring, told PW4 that the deceased was in the lavatory and it was the deceased who had asked him to sit by that table.

PW4 demanded the appellant to open the grill and directed him to handover to her the bunch of keys. The appellant handed her the keys.

PW4 unlocked the grill and immediately rushed to the back of the said premise where the kitchen and lavatory were located. There she found her brother’s bloodied body, with both his hands and legs bound with adhesive or duct tape while the head was covered with a T-shirt. The body was facing downwards. There was a wooden stool placed over his head and a gas cylinder on top of the stool.

The appellant fled the scene on a motorcycle. He was arrested on 29 May 2006, more than a month after the alleged incident.

PW12, the forensic pathologist, testified that the deceased was found to have sustained severe head injury and also fracture of the hyoid bone. PW12 confirmed the cause of the death to be ‘Asphyxia due to manual strangulation with severe head injury’.

In the course of his testimony under cross-examination, PW12 expressed the following opinions:

(a)the injury to the deceased’s head preceded asphyxia; and

(b)from the scenario of the case, the possibility of more than one person inflicting the head injury on the deceased and proceeding with the manual strangulation cannot be ruled out.

THE DEFENCE CASE

In his defence the appellant testified that he knew the deceased through business dealings. He was a regular customer of the deceased where he had purchased antique items from the deceased on numerous occasions. There had never been any problem in the business dealings between them.

On 23 April 2006, a day before the fateful incident, the appellant came to the deceased’s shop and purchased three pieces of vintage coins. These coins were supposed to have been minted during the colonial era when Penang was part of the Straits Settlement. The appellant paid RM300 for the coins.

The appellant took the coins home and later that evening, examined each of them through a magnifying glass. He found certain doubtful features on these coins. He decided to take them back to the deceased on the next day for further enquiry on these coins.

On 24 April 2006 at around 3.15pm, the appellant arrived at the said premise. He found the collapsible grill at the entr