Azahar Mohamed JCA

Ali Tan bin Abdullah, the appellant herein was charged in the High Court of Seremban for committing murder of Nor Liza bt Ishak (‘first charge’), punishable under s 302Penal Code

First charge

Bahawa kamu pada tarikh 02.09.2010 jam lebih kurang 3.15 petang hingga tarikh 03.09.2010 jam lebih kurang 10.15 pagi, di rumah no. B5-1-09B, Flat Win Min, Pasar Baru, di dalam Daerah Port Dickson, di dalam Negeri Sembilan, didapati dengan sengaja menyebabkan kematian ke atas penama Nor Liza bte Ishak, KPT: 750519-03-5828, oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah section 302Kanun Keseksaan

Second charge

Bahawa kamu pada tarikh 02.09.2010 jam lebih kurang 3.15 petang hingga tarikh 03.09.2010 jam lebih kurang 10.15 pagi, di rumah no. B5-1-09B, Flat Win Min, Pasar Baru, di dalam Daerah Port Dickson, di dalam Negeri Sembilan, didapati dengan sengaja menyebabkan kematian ke atas penama Amirul Ayman bin Mohd Yusoff, No Sijil Kelahiran: 087920, oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah section 302Kanun Keseksaan

At the conclusion of the trial, the learned judicial commissioner (‘JC’) found that each of the charges had been proven beyond reasonable doubt against the appellant. The learned JC convicted the appellant on the two charges of murder and sentenced him to the mandatory death penalty prescribed by the Penal Code. Aggrieved by that decision, the appellant then appealed to this court. We heard his appeal, wherein at its conclusion we unanimously dismissed it. We affirmed the convictions and sentences. We now give our reasons for so deciding.

The facts adduced by the prosecution at the trial in the High Court had been fully and well set out in the judgment of the learned JC (see pp 126–142 of Vol 1 of the appeal record). Here, we will only highlight in the following paragraphs, very briefly, the pertinent facts in so far as they are relevant to the issues which arise for decision in this appeal before us.

In this case, the prosecution relied on circumstantial evidence to prove its case against the appellant. There is no eye witness to these crimes. According to the charges, the murder of the mother and her child was alleged to have been committed by the appellant between 3.15pm on 2 September 2010 and 10.15am on 3 September 2010, at apartment No B5-1-09B, Flat Win Min, Pasar Baru, in the District of Port Dickson, in the State of Negeri Sembilan. At all material times, Nor Liza bt Ishak (the first victim) and her child (the second victim) resided at this rented apartment. It is also an important point to note in this case that the appellant was the victims’ immediate neighbour.

The investigation into this case commenced with the discovery of both victims lying motionless in the bathroom of their rented apartment on the morning of 3 September 2010 by Siti Suriati bt Zulkapli (‘PW11’). The first victim’s left hand and legs were bound with cable tie, her mouth was sealed with masking tape, her face was covered with a white plastic bag and on top of that, a wet ‘kain sarung’ was covering her whole face. The second victim’s right hand and legs were also bound with cable tie, his mouth was similarly sealed with masking tape and his face was covered with a wet t-shirt. The post-mortem carried out by the pathologist, Dr Sharifah Safoorah bt Syed Alwee Al’Aidrus (‘PW8’) found several external marks of trauma, predominantly on the head of the first victim. PW8 also observed some apparent defensive wounds on the first victim’s face and upper torso. PW8 certified the cause of death of both the victims as a result of suffocation. For the first victim, the masking tape covering the mouth and the plastic bag and the wet ‘kain sarung’ which covered her entire face had occluded air from entering the air passages. The same applied to the second victim when the wet t-shirt and masking tape covering the victim’s mouth had rendered him unable to breathe.

As we have said ear