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Malayan Law Journal Unreported/2014/Volume /Mohd Khayry bin Ismail v Public Prosecutor - [2014] MLJU
385 - 5 May 2014

[2014] MLJU 385

Mohd Khayry bin Ismail v Public Prosecutor

Hisham Teh Poh Teik (Teh Poh Teik & Co) for the appellants.

Aslinda bt Ahad (Timbalan Pendakwa Raya, Jabatan Peguam Negara) for the respondent.

Hamid Sultan bin Abu Backer JCA:

Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court)

GROUNDS OF JUDGMENT
[1] The appellant's appeal against conviction and sentence of the High Court for murder of two persons
came up for hearing on 20-1-2014 and on the same day we dismissed it. My learned brother Mah Weng
Kwai JCA and my learned sister Tengku Maimun binti Tuan Mat JCA have read and approved the draft
judgment. This is our judgment.
[2] The appellant was charged as follows:

1st charge
"Bahawa kamu pada 29 Ogos 2010 di antara jam lebih kurang 8.00 pagi dan 8.30 pagi di hadapan rumah No. 2-12-4,
Apartment Desa Tun Razak, Blok 2, Jalan 8/118B, Desa Tun Razak, di dalam daerah Cheras, di dalam Wilayah
Persekutuan Kuala Lumpur, telah membunuh NG SIEW HONG (No. K/P: 590113-01-5966), oleh yang demikian kamu
telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan."
2nd charge
"Bahawa kamu pada 29 Ogos 2010 di antara jam lebih kurang 8.00 pagi dan 8.30 pagi di hadapan rumah No. 2-12-4,
Apartment Desa Tun Razak, Blok 2, Jalan 8/118B, Desa Tun Razak, di dalam daerah Cheras, di dalam Wilayah
Persekutuan Kuala Lumpur, telah membunuh GOH YONG SENG (No. K/P: 750908-05-5176), oleh yang demikian
kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan."

[3] The petition of appeal dated 18.9.2013 reads as follows:

1)  The learned trial judge erred in fact and in law when Her Ladyship found the
appellant guilty of two counts of murder under Section 302 of the Penal Code and sentenced
him to death. The learned trial judge erred when Her Ladyship found that the prosecution had
proven its case beyond reasonable doubt.
1)  The learned trial judge erred in fact and in law when Her Ladyship found that a
prima facie case had been out in respect of the two charges of murder. Her Ladyship failed to
realize that the evidence be it direct or circumstantial was insufficient to connect the appellant
with the incident on the 29-8-2010.
1)  The learned trial judge erred in fact and law when Her Ladyship:
1. took into account admissions allegedly made by the appellant to the prosecution
witness and relied on them. The learned trial judge failed to realize that these
admissions were equivocal and therefore it was unsafe to rely on them.
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1. took into account the appellant's conduct to connect the appellant with the incident.
The learned trial judge failed to realize that the appellant's conduct, if at all it was proven
was irrelevant.
1. Failed to realize that the prosecution had not discharged its heavy burden of proving
its case based on circumstantial evidence.
1. The learned trial judge erred in law when Her Ladyship imposed a very high burden
on the appellant to raise a reasonable doubt.
1. The learned trial judge erred in fact and in law when Her Ladyship failed to consider
the appellant's defence as well as the evidence of the appellant's witness(es).

The following are the additional grounds of appeal as contained in the petition dated 6.11.2013:

2)  That the learned trial judge misdirected herself when Her Ladyship relied on the
CCTV evidence recorded at the Desa Tun Razak Apartment and Giant Supermarket to the
prejudice of the appellant when these CCTV recordings were clearly inadmissible in law.
2)  The learned trial judge erred when Her Ladyship failed to recognize that there was
no evidence from the pathologist (PW10 and PW15) that the injuries on the deceased persons
were sufficient in the ordinary course of nature to cause death.
2)  The learned trial judge erred in law in that Her Ladyship accepted the evidence of
PW13 (Mohd Nordin bin Abdullah) and PW16 (Abdul Wahid bin Muhammed Akim) with regard
to the appellant's admissions and/or confessions at face value without subjecting the evidence
to a test of maximum evaluation.
1)  With regard to the said admissions and/or confessions referred to paragraph 3
above the learned trial judge erred when Her Ladyship failed to test its truth contents.
1)  The learned trial judge erred in law when Her Ladyship failed to:
1. Take into consideration many aspects of the evidence that spoke in favour of the
appellant.
1. Discuss the key differences between section 299 and section 300.
1. Recognise that she acted on inadmissible evidence; and
1. Recognize, in the alternative, that at its highest, this is a case of manslaughter.

Preliminaries
[4] What is important to note in this case is that: (i) the victims were parties known to the accused; (ii) the
accused's intention to cause harm was already hatched before the incident; (iii) the items used to make the
explosives which caused the death were traced back to the appellant; (iv) the purchase of the items was also
traced back to the appellant; (v) motive for the incident which caused the death was established; (vi) there
was also confession made to the friends; (vii) the trial court also made a finding there was no plausible
explanation for the accused's conduct.
[5] In essence, though the prosecution case was based on circumstantial evidence, the narrative was such
that any reasonable tribunal properly appraised will have no reasonable alternative to the guilt of the
accused. [See Kartar Singh & Anor v Rex [1952] 18 MLJ 85 ].
[6] The learned trial judge in her 185 page judgment had meticulously set out the facts, the law and the
defence story in great detail. We are of the considered view that judicial time should not be spent to re-
agitate the facts save to deal with the core issues.

Brief Facts
[7] The appellant is known to the deceased. It was the case of the prosecution that the appellant had caused
the explosion by placing two 'pomelo bombs'. The prosecution had adduced the reason for such conduct,
and had also traced the history in relation to how the bomb was placed in the apartment. The prosecution
had relied on strong and cogent circumstantial evidence and two confession statements. The learned
counsel for the prosecution has summarised the case and it reads as follows:
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1i)  "that prior to the incident the appellant had told both PW17, his former employee, and
PW11, his friend, of his desire to burn both the cafe and its owner (NSH) because of his gaming
losses;
1ii)  that about a month before the appellant had obtained 2 packets of 'mercun bola' from
PW18, his former employee;
1iii)  that on the night before the incident the appellant had tried to borrow a sum of
RM20,000 from NSH. When she refused, she was threatened;
1iv)  that at about 3 am on the date of the incident, that is, on 29-8-2010, PW12 saw the
appellant carrying a blue coloured bag and walking towards the lift. The following movements of the
appellant were captured on CCTV: (a) when he was entering the lift while carrying a bag; (b) when he
stepped out of the lift at the 12th floor with the bag; (c) when he walked back into the lift on the 12th
floor, this time without the bag; and (d) when he walked out of the lift on the ground floor;
1v)  that on the morning of the incident, the deceased persons and PW9 were trying to find
out who had given them the pomelos and when they returned to the 12 floor, they noticed that the bag
was still there. GYS lifted up one of the pomelos. It was followed by a loud explosion and PW9, who
was slightly behind, saw the deceased persons were on fire and screaming in pain;
1vi)  amongst the items recovered from the scene were pieces of 'mercun bola', pieces of
blue coloured plastics, the 2 pomelos and 2 cable ties which were tied to a wire which was inserted
inside one of the pomelos;
1vii)  that a day after the incident, the appellant met with PW13, Mohd Nordin bin Abdullah,
to request to stay in his office for a few days as he had domestic problems. As there was no water
supply to his office PW13 then arranged for the appellant to stay with PW16, Abdul Wahid bin
Muhammad Akim, instead;
1viii)  that the appellant made two confessions to both PW13 and PW16 that he was
responsible for the explosion;
1ix)  The appellant was arrested about 26 days after the incident at PW16's house, and the
appellant then led the police to the car park of the Sungai Buloh hospital where from the car the police
seized a plastic packet containing white coloured cable-ties, etc. From his house, the police recovered
a small saw, a red plastic bag containing 5 packets of matches and a 1.50 meter length of electrical
casing;
1x)  on the next day the appellant led PW36 to the Giant Supermarket in Taman Connaught
where the appellant had purchased the two pomelos and 1 screw driver."

[8] Learned counsel for the appellant canvassed the following grounds of appeal:

1a)  The learned trial judge misdirected herself when she relied on the CCTV recordings
at the Apartment Desa Tun Razak and at the Giant Supermarket when these recordings are
clearly inadmissible in law;
1b)  The learned trial judge erred when her Ladyship failed to recognise that the
pathologists (PW10 and PW15) did not state that the injuries on the deceased persons were
sufficient in the ordinary course of nature to cause death;
1c)  The learned trial judge erred when her Ladyship failed to discuss the differences
between section 299 and section 300 of the Penal Code;
1d)  The learned trial judge erred in law when her Ladyship accepted the evidence of
both PW13 and PW16 on the confessions by the appellant at face value without subjecting
them to a more rigorous test of credibility.
[9] We have read the appeal record and submissions of the parties in detail. We are grateful for the
comprehensive submissions. After much consideration of the submission of the learned counsel we are of
the considered view the appeal must be dismissed. Our reasons inter alia are as follows:

2a)  On the issue of CCTV recording at the apartment the learned counsel says (i) PW24
made a copy of the recording by downloading to a thumb drive with the aid of a CPU and later
transferred into the CD which was marked as Exhibit P13; (ii) CD was then handed over to PW
20 who prepared the report on the CD which was marked as Exhibit P11. The learned counsel
argues that there was no certificate tendered under section 90A of the Evidence Act 1950 (EA
1950) and there was no oral evidence adduced by PW 24 that P13 was produced in
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accordance with the said section. Similar arguments were also placed in respect of the CCTV
recording in Giant Supermarket.
2b)  We do not find merit in the technical arguments placed by the learned counsel. Our
reasons inter alia are as follows:
2. Tape recording evidence or CCTV recording, etc. at common law will be admissible
based on 'res gestae' principles as truth of its contents although they may be hearsay or
even self serving statement. Section 6 of EA 1950 and also other sections give statutory
recognition to 'res gestae' principle in the widest form and is not restricted to the
common law parameters. The test for relevancy is set out in the section itself in no
uncompromising terms. There appears to be no comprehensive formula for its
admissibility save as to guidelines suggested and/or imposed by courts all for good
reasons. [See Amrrita Lai Hazra v Emperor 42 Cal 957; Bandahala bin Undik v Public
Prosecutor [2014] 1 CLJ 708 ]. The said section 6 of EA 1950 reads as follows:

"Facts which, though not in issue, are so connected with a fact in issue as to form part of the
same transaction are relevant, whether they occurred at the same time and place or at
different times and places."

2. At common law any form of tape recording, video recording, etc.; if relevant is made
admissible if the court is satisfied of its accuracy and that it has not been tampered with,
etc. The jurisprudence relating to its admissibility as well as sections 3 and 61 of EA
1950 is set out in Janab's Key to Criminal Procedure and Evidence, 2nd edition and it
reads as follows:

"Document before the 1993 Amendment A 851 to the Act was defined in section 3 of the Act
to mean any matter expressed or described upon any substance by means of letters, figures
or marks or by more than one of those means intended to be used or which may be used for
the purpose of recording that matter. Under the new amendment it includes any matter
embodied in a disc, tape, film, sound track or other device whatsoever. A wide and extended
meaning has been given to the definition 'document'. Previously documents at least related to
things which could not be easily tampered with. Now documents include items which could be
easily tampered with. It is submitted that the admission of such documents which could be
easily tampered with must be admitted with caution."
In R v Maqsud Ali (1965) 2 All ER 465 Marshall J observed:
"... for many years now photographs have been admissible in evidence on proof that they are
relevant to the issues involved in the case and that the prints are taken from negatives that
are untouched. The print as seen represent situations that have been reproduced by means
of mechanical and chemical devices. Evidence of things seen through telescopes or
binoculars which otherwise could not be picked up by the naked eye have been admitted, and
now there are devices for picking up, transmitting, and recording conversations. We see no
difference in principle between a tape recording and a photograph. In saying this we must not
be taken as saying that such recordings are admissible whatever the circumstances, but it
does appear to this court wrong to deny to the law of evidence advantages to be gained by
new techniques and new devices, provided the accuracy of the recording can be proved and
the voices recorded properly identified; provided also that the evidence is relevant and
otherwise admissible, we are satisfied that a tape recording is admissible in evidence.
Such documents when produced for the inspection of the court are referred to as
documentary evidence. Thus, documentary evidence may include not only documents in
writing but also maps, plans, graphs, drawings, photographs, discs, tapes videotapes, films
and negatives (see Cross on Evidence)."

2. The amendments in relation to documents to EA 1950 do not in any way affect the
common law position as set out in R v Maqsud Ali. The amendments allow further
hearsay documents which may be difficult to be made admissible under the common law
because of the hearsay rule and its prejudicial effect, to be made admissible provided
the criteria set out in the amendments are complied with. The new amendments such as
section 90A do not displace common law rules as to admissibility. That is to say if the
party cannot admit a document in consequence of the common law restriction then he
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may get the document admitted under any of the new provisions such as section 90A,
etc.
2. In the instant case, R v Maqsud Ali will apply, as there is no issue as to the
correctness of recording or tampering, etc. Even if section 90A was to be made
applicable, a certificate is not sine qua non for its admissibility. The Court of Appeal in
Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1 had asserted that the production
of the certificate is permissive and not mandatory. The Court of Appeal on this issue
observed:

"On reading through s 90A of the Act, we are unable to agree with the construction placed by
learned counsel. First and foremost, s 90A which has seven subsections should not be read
disjointedly. They should be read together as they form one whole provision for the
admissibility of documents produced by computers. As stated earlier, s 90A was added to the
Act in 1993 in order to provide for the admission of computer-produced documents and
statements as in this case. On our reading of this section, we find that under sub-s (1), the
law allows the production of such computer-generated documents or statements if there is
evidence, firstly, that they were produced by a computer. Secondly, it is necessary also to
prove that the computer is in the course of its ordinary use. In our view, there are two ways of
proving this. One way is that it 'may' be proved by the production of the certificate as required
by sub-s (2). Thus, sub-s (2) is permissive and not mandatory. This can also be seen in sub-s
(4) which begins with the words 'Where a certificate is given under subsection (2)'. These
words show that a certificate is not required to be produced in every case. It is our view that
once the prosecution adduces evidence through a bank officer that the document is produced
by a computer, it is not incumbent upon them to also produce a certificate under sub-s (2) as
sub-s (6) provides that a document produced by a computer shall be deemed to be produced
by the computer in the course of its ordinary use. It is also our view that the prosecution can
tender the computer printout through the investigating officer without calling any bank officer.
Therefore, when they adopt this way of proof, then it would be incumbent upon them to
establish that the document is produced by a computer in the course of its ordinary use by
producing the certificate under sub-s (2). The reason seems to me to be obvious as the
investigating officer will be in no position to say that the printout is produced by a computer in
the course of its ordinary use, as he is not an officer of the bank.
In the present case, Zainal - the person in charge of the operations of current accounts -
testified that the statement of accounts was a computer printout. Therefore, in our view, the
first part of sub-s (1) has been proved, ie that the document is a computer printout. It would
be superfluous for him to issue a certificate under sub-s (2) when firsthand evidence that 'the
document so were produced by a computer ' was given by Zainal. It would be superfluous to
have a provision such as in sub-s (6) if in every case a certificate must be produced. It
follows, therefore, that such a certificate need only be tendered if an officer like Zainal is not
called to testify that the statement is produced by a computer. Then the certificate becomes
relevant to establish that the document is produced by a computer in the course of its ordinary
use. It is our view that when such an officer is not called, the court cannot rely on the deeming
provision of sub-s (6). Once the court accepts the evidence of Zainal- and in this case we
cannot see any reason whatsoever for the court not to as there was no challenge by cross-
examination - the prosecution has succeeded in proving what s 90A(1) requires them to
prove: that such document was produced by the computer and in view of the deeming
provision of sub-s (6), the second part is also proved."

1. Gnanasegaran's case was further endorsed by the Federal Court in Ahmad Najib
Aris v PP [2009] 2 CLJ 800. In addition, the relevant witnesses who were involved in
extracting the CCTV recording were present in court and gave evidence. Ultimately it is
for the court to decide on the issue of relevancy as well as admissibility. Whether a
particular evidence is relevant is a question of law. [See Bibhati v Ramendra Narayan
AIR 1947 PC ]. Once it is decided as relevant, the rules governing admissibility of
evidence are procedural in nature and not a substantive right. [See Msimanga Lesley v
PP [2005] 4 MLJ 314 ]. Once admitted the issue will only be as to probative force or
whether it should be excluded under the fairness rule, etc. [See s.136]. The complaint as
to admissibility on the grounds of hearsay is a factor which need to be taken by the
courts before any evidence or documents is made admissible pursuant to section 136
of EA 1950 without compromising on the 'fairness rule'. [See Liang Weng Heng v Public
Prosecutor [2013] MLJU 1283 ]. Once made admissible, the real issue would be its
probative force and not admissibility if the evidence is relevant. When prejudicial
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evidence is admitted breaching the 'fairness rule' the integrity of decision making
process is compromised and in consequence appellate intervention may be necessary.
The facts of the instant case do not warrant so on this issue.
1. The learned counsel for the appellant complained that the pathologists did not state
that the injuries on the deceased persons were sufficient in the ordinary cause of nature
to cause death and that the omission is fatal. We do not find much merit in the
submission. It is well established that a person can be convicted for murder purely on
circumstantial evidence that too without the body being found and merely through
documentary evidence. [See Sunny Ang v PP [1967] 2 MLJ 195 ]. The Court of Appeal
on circumstantial evidence, through Hamid Sultan bin Abu Backer JCA in the case of
Aung Tun & Anor v Public Prosecutor [2014] 1 MLJ 784 had this to say:

"[11] Motive may be essential if it is a case where the prosecution is relying on circumstantial
evidence. Unlike common law offence of murder, the statutory offence of murder or
manslaughter based on sections 299 and 300 of the Penal Code strictly does not require
motive as an element to be proved. If at all evidence of motive is introduced by the
prosecution where direct evidence is available for homicide then it is only meant to strengthen
the probative force of the prosecution case and/or to negate the defence of self defence or
provocation, etc. at the earliest stage."

1. The learned counsel for the appellant's submission on the confession statements to
PW13 and PW16 were not subjected to maximum evaluation test does not have merit.
The issue is one of credibility and finding of facts. We do not see any reason on record
to warrant the rejection of the evidence of PW13 and PW16 and no reason to
demonstrate that the 'fairness rule' complained by the learned counsel in reliance of the
case Goi Ching Ang v PP [1991] 1 MLJ 507 have been breached in the instant case.
Very importantly the appellant was not convicted solely on the confession made to PW13
and PW16. The confession statements in the instant case passes the test of relevancy
as well as admissibility. The only issue if any will be on the probative force and that falls
within the realm of the trial judge.
1. The complaint of the learned counsel that the pathologist evidence and the failure of
the learned judge to discuss the differences between section 299 and section 300 of
the Penal Code has no significant nexus more so as we have stated earlier on a
conviction on circumstantial evidence and there was no doubt as to the death and its
cause.

[10] It is well settled that it is in the hands of triers of facts to assess the quality of evidence and to determine
whether the evidence on record justifies a conviction as well as sentence. We have perused the evidence in
detail and we are satisfied that there are sufficient material to support the charge and the view taken by the
trial court on the relevant issues in our view was a reasonable view of the evidence on record, and the court
had followed Radhi's direction and rightly applied the maximum evaluation and beyond reasonable doubt
test, [see PP v Aszzid Abdullah [2008] 1 MLJ 281; Tong Kam Yew & Anor v PP [2013] 4 MLJ 888; Chin Kek
Shen v PP [2013] 5 MLJ 827 ].
[11] We are of the considered view that even without the admission of the two CCTV recordings, the case
against the appellant has been proved beyond reasonable doubt based on all the relevant circumstantial
evidence of this case. It is a safe decision and appellate intervention is not warranted and the appeal has no
merit. Accordingly we dismiss the appeal.
We hereby order so.