TM v Public Prosecutor [2016] MLJU 1764  

Court of Appeal, Putrajaya

Criminal Procedure – Appeal against conviction and sentence – Appellant convicted under s 302 of Penal Code for offence of murder  

1.    The Appellant, TM, was charged with murder under section 302 of the Penal Code for causing the death of Isahak bin Iming.

2.    The incident happened on 16 November 2011, around 3.30 a.m., at the deceased’s house in Kampung Bahagia, Sandakan, Sabah.

3.    TM, a relative of the deceased’s wife (PW3), had been staying with the family due to illness. On the night of the incident, while the deceased and PW3 were asleep in their bedroom, TM entered the bedroom holding a wooden coconut grinder (Exhibit P18A).

4.    TM attacked PW3 and the deceased. PW3 managed to escaped with injuries and screamed for help. Their daughter (PW4) entered the bedroom and switched on the light, and they saw the deceased bleeding from his head. TM was still holding the weapon.

5.    TM was restrained by family members and handed over to the police. The deceased was taken to the hospital but died from his injuries.

6.    A post-mortem confirmed that the cause of death was blunt force trauma to the head, consistent with being struck by the coconut grinder.

7.    The High Court convicted the Appellant and sentenced him to death. However, the conviction was later appealed.

1.    Whether the trial judge erred in relying on the testimonies of “interested witnesses” (PW3 and PW4) without independent corroboration?

2.    Whether the High Court was correct in convicting the Appellant for murder under section 302 of the Penal Code?

3.    Whether the absence of motive made the conviction for murder unsafe?

1.    Whether the trial judge erred in relying on the testimonies of “interested witnesses” (PW3 and PW4) without independent corroboration?

(a)   The Court acknowledged that PW3 and PW4 were indeed in close relations with the deceased, but held that being a relative does not automatically disqualify a witness or taint their credibility.

(b)   The COA relied on Kofri Mustafar v PP [2010] 9 CLJ 519, which held:

“There is no known legal presumption that every time an interested witness testifies, their evidence must be disbelieved. Unless there is cogent evidence to show otherwise, their testimony is entitled to be believed.”

(c)   It also relied on Liew Siow Long v PP [1970] 1 MLJ 40, where Raja Azlan Shah J (as His Highness then was) stated:

“Testimony of close relations is not tainted if it is otherwise reliable… But if it is proved that they are not entirely disinterested witnesses… then their testimony is tainted and requires corroboration.”

(d)   PW3 was present during the attack and personally witnessed the Appellant striking her and the deceased. PW4 entered the room moments later, switched on the light, and saw the Appellant holding the weapon.

(e)   No other person was in the room and the scene was secure and clear.

(f)     COA stated that, the defence did not challenge their identification of the Appellant during cross-examination. In fact, this amounted to a tacit admission (see Wong Swee Chin v PP [1981] 1 MLJ 212).

(g)   The Court of Appeal ruled the trial judge was entitled to rely on the evidence of PW3 and PW4, even though they were related to the deceased, as their testimonies were direct, consistent, and credible. There was no legal requirement for independent corroboration where the evidence is trustworthy and convincing.

(h)   Therefore, COA found that the prosecution had clearly established a prima facie case, and the evidence of these witnesses’ withstood scrutiny.

2.    Whether the High Court was correct in convicting the Appellant under s 302 Penal Code for murder?

(a)      Court of Appeal (COA) affirmed that the conviction for murder under section 302 Penal Code was proper, based on both the act of causing death and the intention (mens rea) to do so.

(b)      COA ruled that the act of killing (Actus Reus) was proven where the Appellant attacked the deceased with a heavy wooden coconut grinder while the deceased was asleep.

(c)      PW3 (wife) and PW4 (daughter) gave consistent eyewitness testimony identifying the Appellant as the attacker.

(d)      COA found that the deceased died of blunt force head trauma which confirmed by medical evidence (PW2). The weapon used, Exhibit P18A, was capable of causing fatal injuries.

(e)      Moreover, the intention (mens rea) was present, COA found intent to kill or cause grievous injury likely to cause death, under section 300(c) of the Penal Code.

(f)        COA emphasized several critical factors in affirming the Appellant’s intent to cause fatal injury. The body part targeted was the head, a vital and highly vulnerable area. The weapon used was a heavy, solid coconut grinder with serrated edges and was not an object picked up by chance but deliberately selected.

(g)      The force of the blow was substantial, strong enough to cause a burst-fracture of the skull, as confirmed by medical evidence. The manner of attack also supported premeditation where the assault occurred at approximately 3:30 a.m., while the deceased was asleep and defenceless. The Appellant had armed himself in advance and entered the bedroom deliberately and under cover of darkness, which the COA found indicative of an intent to cause grievous bodily harm, if not death.

(h)      In this particular case, COA rejected the Appellant’s claim that he only meant to injure and accidentally hit the head, calling it implausible and an afterthought, since it was not raised during the prosecution’s case.

(i)        COA reiterated that motive is not essential to prove murder if there is clear evidence of intent and causation by citing Kumaran a/l Sappani v PP.

(j)        Thus, Court of Appeal found no error in the High Court’s finding.

3.    Whether the absence of motive made the conviction for murder unsafe?

(a)   COA judge found that motive is not a legal requirement to prove murder.

(b)   COA referred to established legal principles that motive is not a sine qua non (essential element) for a conviction under section 302 of the Penal Code.

(c)   COA cite the case of Kumaran a/l Sappani v PP [2012] 6 MLJ 153, where the Court observed:

“Absence of motive does not ipso facto result in the acquittal of the accused… Motive is not a sine qua non to prove the case of the prosecution.”

(d)   The COA further referred to Molu v State of Haryana AIR 1976 SC 2499, where the Indian Supreme Court held:

“If the evidence of eyewitnesses is creditworthy and believed by the court, the question whether there is any motive or not becomes wholly irrelevant.”

(e)   The Court emphasized that the conviction was based on strong and credible direct evidence, where the Appellant was seen attacking the deceased and caught holding the murder weapon. The medical evidence confirmed that the injuries were deliberate and fatal and the Appellant’s explanation was not believable and was regarded as an afterthought.

(f)     The absence of a clearly established motive did not undermine the reliability of the evidence or the safety of the conviction. The prosecution’s case rested on direct and convincing evidence, and not on motive.

The Court of Appeal dismissed the appeal and affirmed the conviction and sentence of death under section 302 Penal Code.

1.    Intent to kill need not be directly proven, it can be inferred from the weapon used, the body part targeted (head), and the severity of injury.

2.    Lack of motive does not make a murder conviction unsafe if the act and intent are clearly proven.

3.    Testimonies of the deceased’s wife and daughter were accepted as credible. Relationship alone doesn’t disqualify a witness.

4.    The facts supported a conviction under section 302 (murder), not section 304 (culpable homicide), due to the deliberate nature of the attack.