Mohd Ghazali FCJ (delivering judgment of the court)

The appellant was convicted for the murder of one Aswadi bin Mohamad (‘the deceased’) and was sentenced to death in accordance with s 302 Penal Code

THE FACTS

The offence was committed on 2 September 2000 at about 8pm at a night market in Pekan Merchang, Marang Kuala Terengganu. The facts showed that on the night of the incident the deceased and his brother PW4 visited a stall selling compact discs which was operated by PW2 and his wife, PW3. PW2 and PW3 then saw the appellant hitting the deceased on his head with a brick. When the deceased fell to the ground the appellant continued attacking the deceased with his hands and legs. The appellant then ran away. PW4, who knew the appellant, also witnessed the incident.

The deceased was then taken to the Terengganu Hospital for treatment. PW16, the doctor who treated the deceased testified that the deceased was in a coma when he was brought in and that an x-ray of the head revealed a fracture of the right temporal bone. He further testified that the deceased was in a critical condition at that material time and opined that he had a slim chance of survival. The deceased succumbed to his injuries and died on 6 September 2000.

PW5, the pathologist who performed a post mortem on the deceased confirmed that the cause of death was due to severe head injuries resulting from being struck hard on the head by a blunt object.

On 10 September 2000 at about 9.15pm the appellant surrendered himself at the Merchang police station. He was subsequently charged with the offence of murder.

THE HIGH COURT

At the conclusion of the case for the prosecution, the learned trial judge, Nik Hashim Ab Rahman J (as he then was) ruled that the prosecution has made out a prima facie case against the appellant on the offence charged and consequently called upon the appellant to enter on his defence. In his grounds of judgment, the trial judge said:

Keterangan yang ada pada peringkat ini adalah sudah memadai dan saya berpuashati bahawa pihak pendakwa telah berjaya mewujudkan suatu kes prima facie terhadap OKT bahawa OKT telah melakukan kesalahan membunuh ke atas si mati seperti ditakrifkan di bawah s 300(a)(c)(d)

The appellant elected to give evidence on oath. He testified that on the day of the incident, ie 2 September 2000 he was in Mersing. He claimed that he was not aware that the deceased was assaulted on the day of the incident and neither would he know the assailant. He denied that he was at the scene on the day of the incident. He further denied that he was the person who assaulted the deceased on the day of the incident. He insisted that he only came to know of the incident when his brother, Mohd Noor bin Yusof contacted him by telephone and informed that the police was looking for him. Acting on that information, he returned to Merchang and surrendered to the police on 10 September 2000.

Under cross-examination, the appellant identified the deceased from a photograph shown to him by the prosecuting officer. He admitted that he had in the past once quarreled with the deceased over a purchase of drugs and in the course of that quarrel the deceased attacked him with a golok.

At the conclusion of the trial, after considering all the evidence before him, the trial judge found that the prosecution has proved its case beyond reasonable doubt and consequently found the appellant guilty of the offence of murder as charged and convicted him.

In his grounds of judgment the trial judge took into consideration that no notice of alibi was given pursuant to s 402A(1) Criminal Procedure CodeVasan Singh v Public Prosecutor Public Prosecutor v Ling Tee Huah Ling Tee Huah the court held that a mere denial without other proof to reasonably dislodge the prosecution’s evidence is not sufficient. The appellant appealed to the Court of Appeal.

THE COURT OF APPEAL

In dismissing the appeal, the Court of Appeal was satisfied that the trial judge had undertaken a maximum evaluation of the eviden