IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. S-05-113-05/2012 Between Public Prosecutor ……Appellant And Bernadito L. Alenjandro Jr ...…Respondent [In the matter of High Court of Sabah and Sarawak, in Sandakan, Sabah. Criminal Trial No. S-45-04-2011] Between Public Prosecutor And Bernadito L. Alenjandro Jr CORAM AZAHAR MOHAMED, JCA LINTON ALBERT, JCA DAVID WONG DAK WAH, JCA 1 GROUNDS OF DECISION The 14th January 2011 began on a happy note for the respondent who was invited to one Joel Mateo’s birthday party at his estate quarters, opposite to where the respondent stayed. He and his wife went early in the morning to help in the preparations at Joel Mateo’s house. In conjunction with the birthday party there was a long drinking session which ended in a fight resulting in the respondent inflicting serious injury to Renato S. Harder (the deceased) who succumbed to the injury and less serious injuries to James Jimeno who survived. The respondent was subsequently charged for offences under the Penal Code. The first charge read as follows : “That you, on the 14th day of January 2011, at around 7.00 pm to 8.00 pm, at Kongsi Pekerja No. 15D, Ladang Mewah 2, in the District of Kinabatangan, in the State of Sabah, did commit murder by causing the death of one RENATO S. HARDER (M) and thereby commit an offence punishable under section 302 of the Penal Code.” The second charge read : 2 “That you, on the 14th day of January 2011, at around 7.00 pm to 8.00 pm, at kongsi Pekerja No. 15D, Ladang Mewah 2, in the District of Kinabatangan, in the State of Sabah, had voluntarily caused hurt to one JAMES JIMENO (M) by means of a sharp parang and that you have thereby committed an offence punishable under section 324 of the Penal Code.” The respondent was acquitted of the offence of murder punishable under section 302 of the Penal Code pursuant to the first charge but found guilty and convicted of the lesser offence of culpable homicide not amounting to murder under section 304(a) of the Penal Code and sentenced to a term of 18 years imprisonment. The respondent was, however, convicted under the second charge and sentenced to 2 years imprisonment to run concurrently with the imprisonment term for the offence under section 304(a) of the Penal Code. The prosecution appealed in respect of the first charge contending that the judicial commissioner had misdirected himself on both fact and law but for which the respondent would not have been found guilty and convicted of the lesser offence under section 304(a) of the Penal Code but 3 guilty and convicted as charged for murder under section 302 of the Penal Code. The prosecution advanced three main grounds before us and we shall deal with each ground in the order it was presented before us. The first ground revolved around the inconsistent findings of fact on the credibility of the relevant witnesses for the prosecution and the weight given to their evidence at the prosecution stage and the incongruous findings at the end of the defence case. Learned DPP illustrated the inconsistency by setting out verbatim the relevant passages of the judgment of the judicial commissioner which is reproduced as follows: “This is my ruling at the end of the prosecution’s case. Having heard the testimonies of the witnesses for the prosecution, seen and considered the various exhibits, read the written submissions of the prosecution and the defence and having subjected inter alia the prosecution’s case in its totality to a maximum evaluation, carefully scrutinized the credibility of each of the prosecution’s witnesses, I find that the prosecution has proven a prima facie case against the accused and I therefore order the accused to enter this defence in respect of the 2 charges under sections 302 and 324 of the Penal Code.” 4 At the end of the defence case a different finding was arrived at : “I have observed the demeanour and veracity of the witnesses for the prosecution and the defence. I prefer the testimony of the accused and his wife. The accused testified in a straightforward manner and I find that his testimony was credible and capable of belief. As regards the testimoinies of the prosecution witnesses especially PW5 and PW11, I find that their testimonies are not credible based on other circumstances and evidences of the case and they being friends of the deceased, might not tell the truth and instead seek to implicate the accused in the death of their friend, the deceased. (emphasis added)” At the end of the prosecution case the trial judge ruled that the prosecution had established a prima facie case in relation to the first charge based on the following findings which is reproduced verbatim from the judgment of the judicial commissioner : 5 “(a) The deceased is dead. The deceased’s body had been positively identified by his sister (PW10) during the post- mortem. She had also lodged a police report (Exhibit P69) to correct the real name of the deceased as Renato S. Harder. (b) Dr. Jessie Hiu @ Jessie Dorey Hiu Chen Chen (PW6), the pathologist, testified that the deceased’s death was caused by the pypovolaemic shock due to or as a consequence of chop wound on the neck. Besides her oral testimonies, her evidence is corroborated by the post-mortem report which was admitted and marked as Exhibit P7. Hence, the death of the deceased was caused by injuries inflicted on him. (c) There is sufficient evidence to show that the deceased’s death was caused by the injuries inflicted by the accused namely:- i. Alfredo Barlaan (PW11), saw the accused slashed the deceased on his left neck with 6 parang. James Jimeno, PW5 also witnessed the incident and was injured during the incident. ii. The parang (P10) which is undisputedly the weapon used in this case was discovered from the accused by Jumal Sakile (PW12) who later handed it to his wife. The parang later discovered by one Hendrik Dadi (PW14) who put it at the bucket of the vehicle, which later was seized by PW16, Sjn Ismail. iii. The T-shirt (P61) which was discovered from the information given by the accused was sent to the Chemistry Department for DNA profiling and according to Rita Tie Ung Ha (PW7), the chemist and her report (P22) contained the bloodstain that belonged to the deceased. 7 (d) There is evidence to show that the accused had the intention to cause the deceased bodily injury which was sufficient in the ordinary course of nature to cause death.” Learned DPP relied on the case of PP v. Kenneth Fook Mun Lee & Another Appeal [2006] 1 CLJ 499 which in our view, is grossly inapplicable in the circumstances of the present appeal. In that case, the accused, for no apparent reason walked towards the deceased who was a total stranger and with utter callousness and cruelty shot her in the chest while she was still in her car. She died. The High Court convicted the accused for an offence under section 304(b) of the Penal Code but on appeal, the Court of Appeal substituted it with a conviction for murder under section 302 of the Penal Code and sentenced him to death by hanging. Mohd Ghazali Yusoff JCA, delivering the judgment of the Court of Appeal said at pages 555-556: “In this instant appeal, on the evidence, we are of the unanimous view that the learned trial judge had misdirected himself in fact and in law and ought to have found the 8 respondent guilty on the original charge of murder. The facts are sufficient to bring the case within the ambil of s. 300(d) of the Code and the act of the respondent would fall within the definition of murder. The invocation of s. 300(c) of the Code by the learned trial judge is altogether erroneous. Intention is not a necessary element of an offence under s. 300(d). All that is needed is knowledge that the act is likely to cause death. The emphasis in s. 300(d) is on the imminently dangerous character of the act itself. Further, s. 300(d) is usually applied where the act of the offender is in general disregard for human life and safety. What is clear from the evidence is the respondent did not know the deceased. He discharged the gun in absolute callousness towards the result. The act of the respondent cannot fall within the purview of s. 304(b) of the Code. He has committed by him clearly fall under s. 300(d) of the Code. All the evidence proved beyond doubt that he had performed the act knowingly and voluntarily and hence must be guilty of an offence under s. 302 of the Code.” 9 In the present appeal, the facts are totally different and even though there were two versions, neither was anywhere remotely close to section 300(d) of the Penal Code. The two versions were set out in the judgment of the judicial commissioner as follows: “There were two versions on how the deceased was slashed. The prosecution witnesses i.e. PW5 and PW11 said the accused came into the house and straight away slashed the deceased who was holding a microphone singing karaoke. On the other hand, the accused said (as he demonstrated in court) he was hit at the back of his head by someone and as a result of the said hit he stumbled and in the course of falling down towards the direction of deceased who was standing in front of him, he waved his parang which he held in his right hand at the chest level towards his right hand side, turning to his back and lastly chopped to his front and followed with his fall with face down.” 10 We, therefore, find no merit in the argument that the trial judge made two inconsistent findings, one at the end of the prosecution case and another at the end of the defence case because it is trite that at the end of the defence case the trial judge must re-evaluate all the evidence of the prosecution and defence and ask himself whether the prosecution had proven its case beyond reasonable doubt or, as the case may be whether the defence had cast a reasonable doubt on the prosecution case.