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Malayan Law Journal Unreported/2014/Volume /Lim Kiang Chai v Puli! Pro"e!utor # $2014%
MLJU &1 # 12 'eruary 2014
$2014% MLJU &1
Lim Kiang Chai v Public Prosecutor
COURT OF APPEAL (PUTRAJAYA
!O"# "$%"A!U#$& YU&U%' A(#UL )A"A( PATA$L A&# (AL$A YU%OF )A"$ JJCA
CR$!$&AL APPEAL &O *+,-+./+.,,0
/. Februar1 .,/2
Kitson Foong (Gladys Lee Lee Yen with him) (Kit & Associates) for the appellant.
Noor Fadzila t !sha" (#ep$ty %$lic %rosec$tor& Attorney General's (hamers) for the
respondent.
!oh3 "ishamu3in Yunus JJCA 4
JU#5!E&T OF T"E COURT
6/7 (hi" appeal y the appellant) Lim Kiang Chai *the a!!u"ed+) i" again"t hi" !onvi!tion and
death "enten!e y the ,igh Court o- Ku!hing -or the murder o- one 'aian Lim .nn ,oaw *the
de!ea"ed+/
6.7 (he murder too0 pla!e on 1& 'eruary 2001 at aout 2/11 p/m/3u"t a-ter the de!ea"ed and hi"
wi-e had -ini"hed having a meal at the 'u 4iang 'ood Centre) 5uer 5oad) 6ato0) Ku!hing/
687 (he de!ea"ed wa" 7a lawyer pra!ti"ing in Ku!hing/
627 (he appellant i" alleged to have !ommitted the !rime with another per"on "till at large/
6-7 ,e wa" arre"ted in 6iu on 2 Mar!h 2001 and rought to Ku!hing -or hi" trial/ ,e wa"
!onvi!ted -or murder and "enten!ed to death y the ,igh Court o- Ku!hing on 22 8e!emer
200&/
697 .t the trial) the appellant denie" the !harge/
6:7 (he !a"e -or the pro"e!ution i" that at the material time the de!ea"ed and hi" wi-e had 3u"t
-ini"hed their meal at the 'u 4iang 'ood Centre) and had got into their !ar/ ." the de!ea"ed wa"
rever"ing hi" !ar out o- the par0ing lot) two per"on" !ame in a motor!y!le and "topped ehind the
de!ea"ed7" !ar/ (he pillion rider got o-- the motor!y!le) approa!hed the de!ea"ed7" !ar) and with
a pi"tol -ired -our "hot" at the de!ea"ed at !lo"e range/ (he de!ea"ed) who wa" wounded) wa"
immediately ru"hed to the Ku!hing 9eneral ,o"pital/ :ut he died o- the gun"hot wound" upon
arrival at the ;mergen!y Unit o- the ho"pital/
6;7 (he appellant i" alleged to have een the driver o- the motor!y!le/
607 (hat the de!ea"ed wa" murdered at the "tated pla!e) date and time i" not di"puted/ (he i""ue
i"< wa" the appellant the driver o- the motor!y!le that wa" u"ed y the gunman) the pillion rider=
6/,7 (hree per"on" te"ti-ied that they were at the "!ene o- the !rime at the material time and that
they "aw the "hooting/ (hey are #
1) one Capt/ Mohd/ 'ai"al in >a0aria *P?10+@
A
1) one Poo 6iang ,in *P?1A+@ and
1) Mdm Chin 6iew Chin *P?12+) the wi-e o- the de!ea"ed/
6//7 .t the time o- the "hooting) P?10 wa" in hi" -riend7" "hop at Jalan 5uer/ ,earing
gun"hot") he immediately loo0ed toward" the dire!tion o- the gun"hot" and "aw the de!ea"ed
eing "hot/ ,e "aw the two per"on" on a motor!y!le aout to drive away -rom the "!ene/ ,e
helped to drive the in3ured de!ea"ed and P?12 *de!ea"ed7" wi-e+ to the ho"pital) u"ing the
de!ea"ed7" !ar/
6/.7 P?1A) who own" a "tall near the entran!e o- 'u 4iang 'ood Centre) wa" at hi" "tall at the
material time/ ,e heard the gun"hot" and he "aw a man wearing a !ra"h helmet with a vi"or
"tanding e"ide the de!ea"ed7" !ar and "hooting "everal time" at the de!ea"ed/
6/87 P?12 wa" in the !ar at the time her hu"and *the de!ea"ed+ wa" "hot/ 6he wa" at the -ront
"eat "itting neBt to her hu"and) who wa" rever"ing the !ar/
6/27 ,owever) none o- the witne""e" *P?10) P?1A or P?12+ who witne""ed the "hooting wa"
ale to name or de"!rie the identity o- the two rider" o- the motor!y!le a" oth o- them were
wearing !ra"h helmet" with vi"or"@ nor were they ale to "tate the regi"tration numer o- the
motor!y!le u"ed y the a""ailant"/
6/-7 .t the trial at the ,igh Court) the pro"e!ution relied on a !autioned "tatement *;Bh/ P114+
made y the appellant *made pur"uant to "e!tion 11A o- the Criminal Pro!edure Code+ a" a
!ru!ial pie!e o- eviden!e to impli!ate the appellant in the murder o- the de!ea"ed/ Ct i" the
!ontention o- the pro"e!ution that the appellant in hi" !autioned "tatement had !on-e""ed to
eing hired to murder o- the de!ea"ed) and that he wa" the driver o- the motor!y!le that !arried
the gunman who "hot the de!ea"ed on the day o- the rutal 0illing/
6/97 (he appellant) at the trial) had o3e!ted to the tendering o- the !autioned "tatement y the
pro"e!ution on the ground that it wa" not voluntarily made y him y rea"on o- oppre""ion) and
that all that i" "tated in the !autioned "tatement i" not true/
6/:7 .-ter a trial#within#a#trial) the learned trial Judge ruled that the !autioned "tatement wa"
voluntarily made y the appellant and thu" admi""ile a" eviden!e/
6/;7 Cn hi" !autioned "tatement) the appellant i" alleged to have !on-e""ed to eing the driver o-
the motor!y!le) a "tolen Damaha 100) u"ed to !ommit the !rime/ .!!ording to the !autioned
"tatement) the appellant wa" hired y hi" oyhood -riend) one 5oger ?ong) to 0ill the de!ea"ed@
and -or whi!h he wa" paid 5M21)000/ .!!ording to the !autioned "tatement) the gunman who
rode a" a pillion rider on the motor!y!le wa" one .h :ee@ and that .h :ee wa" re!ruited y a
-riend o- 5oger ?ong !alled .h ,o/
6/07 ?e allowed thi" appeal@ and we "et a"ide the !onvi!tion and "enten!e/
6.,7 (he -ollowing are our rea"on"/
6./7 Cn the pre"ent !a"e) the pro"e!ution relied primarily *i- not entirely+ on the !autioned
"tatement o- the appellant in order to prove it" !a"e again"t the appellant/.nd the learned trial
Judge) in hi" ground" o- 3udgment) "et" out in it" entirety the !ontent" o- the !autioned "tatement@
and) a"ed on the !autioned "tatement) had made a -inding that the appellant wa" the driver o-
the motor!y!le at the time o- the "hooting/
6..7 Ct i" "ettled law that the legal urden o- e"tali"hing the voluntarine"" o- a !autioned
"tatement lie" on the pro"e!ution@ and the "tandard o- proo- i" that o- eyond rea"onale dout/
6.87 Ct i" eEually trite law that the only urden that re"t" upon an a!!u"ed i" to pla!e e-ore the
Judge "u!h -a!t" a" would rai"e a well#grounded "u"pi!ion that the !autioned "tatement wa"
made involuntarily Fper 9opal 6ri 5am JC. *a" he then wa"+ in delivering the 3udgment o- the
Court o- .ppeal in Juraimi in)$sin * %$lic %rosec$tor $1GG&% 1 MLJ 1AH) at p/ 122+/
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6.27 Cn our 3udgment) a"ed on the eviden!e addu!ed during the trial#within#a#trial) the
pro"e!ution had -ailed to prove eyond rea"onale dout that the !autioned "tatement wa" made
y the appellant voluntarily/?e note -rom the eviden!e that the appellant wa" "u3e!ted to long
hour" o- interrogation -or -ive !on"e!utive day" -rom A Mar!h 2001 until H Mar!h 2001/ (he length
o- interrogation wa" aout 10 and a hal- hour" ea!h day *o- !our"e) wema0e allowan!e -or lun!h
rea0" and toilet rea0" in etween+/ (he Lo!0#up 8iary "how" that everyday *during the "aid -ive
!on"e!utive day"+ the appellant would e ta0en out -rom hi" !ell to the interrogation room -or
interrogation early in the morning at around H a/m/@ and he would e rought a!0 to hi" !ell late
in the evening around 1<A0 p/m/
6.-7 .-ter the inten"ive long hour" o- interrogation -or a period o- -ive !on"e!utive day") the
!autioned "tatement wa" re!orded on & Mar!h 2001 -rom 10<01 a/ m/ until 1<A0 p@m// Ct wa"
re!orded y one Chie- Cn"pe!tor .ng 6eow.un *(?(#P?1+/
6.97 :e-ore the learned trial Judge) it wa" !ontended y the appellant that the interrogation o- the
appellant while he wa" in !u"tody -or long hour" and -or -ive !on"e!utive day" wa" an a!t o-
oppre""ion on the part o- the poli!e) thu" rendering the !autioned "tatement not voluntarily made
and inadmi""ile/ :ut thi" argument wa" re3e!ted y the learned trial Judge/ ,e held<
?ith regard to the a!!u"ed7" allegation that he wa" interrogated -or long period" o- at lea"t 11 hour" a
day) C -ind thi" di--i!ult to elieve e!au"e the eviden!e "how") e"pe!ially -rom the lo!0#up "entry
a""igned to e"!ort him during that period) (?( P?$1A%) that the a!!u"ed wa" "erved and had a lun!h
rea0 daily and wa" al"o allowed to go to the toilet on reEue"t/ Cn view o- thi" C am more in!lined to
elieve (?( P?12 6gt/ Ma3/ Khor that the a!!u"ed7" interrogation la"ted -or 1 to 2 hour" per day/
6.:7 ?ith re"pe!t) we di"agree with the -inding o- the learned trial Judge/ In the eviden!e) 6gt/
Ma3/ Khor *(?( P?12+ !ould not have een telling the truth/ Ct i" to e re!alled that a!!ording to
the Lo!0#Up 8iary the interrogation egan around H a/m/ and ended at around 1<A0 p/m/ (he
poli!e "entry) (?( P?1A) did not elaorate to eBplain that -or ea!h day) how long wa" the lun!h
rea0@ and how long were the toilet rea0"= (here-ore) what i" the a"i" -or 6gt/ Ma3/ Khor to "ay
that the interrogation only la"ted -or 1 to 2 hour" per day/ Cn our 3udgment) the!ontinuou" long
hour" o- interrogation o- the appellant y the poli!e o--i!er" in Eue"tion -or a period o- -ive
!on"e!utive day") !on"tituteoppre""ive !ondu!t on the part o- the poli!e o--i!er" involved in the
interrogation/ (hu") the !autioned "tatement !annot e "aid to have een voluntarily made y the
appellant/ (he !autioned "tatement) there-ore "hould not have een admitted y the learned trial
Judge/ ." the pro"e!ution relie" primarily *i- not entirely+ on the !autioned "tatement) it -ollow"
that on!e the !autioned "tatement i" ruled inadmi""ile) then the !onvi!tion i" no longer
"u"tainale/
6.;7 Cn #ato +o"htar in )ashim * %$lic %rosec$tor $1G&A% 2 MLJ 2A2) .dool!ader '/ J/ "aid *at
p/ 2H2+<
Jo "tatement y an a!!u"ed i" admi""ile in eviden!e again"t him unle"" it i" "hown y the pro"e!ution
to have een a voluntary "tatement $!rahim * , $1G14% .C 1GG per Lord 6umner% and thi" te"t wa"
a!!epted y the ,ou"e o- Lord" a" the !orre!t approa!h in 8ire!tor o- %$lic %rosec$tions * %ing Ling
$1GH1% A .ll ;5 1H1///
6.07 Cn Juraimi binHusin v Public Prosecutor 9opal 6ri 5am JC. "aid *at p/ 12A+<
. "tatement re!orded under the provi"ion" o- "e!tion 11A o- the CPC may al"o e held to e
inadmi""ile i- it wa" otained through oppre""ion a" de-ined y 6a!h" J in , * %riestly *1G21+ 11 Cr .pp
5ep 1/
68,7 ,owever) there i" another rea"on a" to why the appeal mu"t e allowed/ Cn our 3udgment) it
i" un"a-e to !onvi!t a per"on) parti!ularly on a murder !harge) whi!h !arrie" the death penalty)
"olely on hi" !on-e""ion made in a !autioned "tatement to a poli!e o--i!er under "e!tion 11A o-
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the Criminal Pro!edure Code # even i- the Court were to rule the !autioned "tatement admi""ile/
68/7 Cn %$lic %rosec$tor * Lai %ong Y$en & -rs $1G2&% 1 MLJ 12) C"mail Khan J *a" he then wa"+
ruled *at p/ 14+<
Unli0e the !on-e""ion o- a !o#a!!u"ed) a !on-e""ion y an a!!u"ed !an e u"ed again"t him"el-) and i-
elieved !ould lead to a !onvi!tion/ :ut the rule o- pruden!e reEuire" that there "hould e independent
!orrooration/
68.7 Cn Juraimi bin Husin v Public Prosecutor 9opal 6ri 5am JC. "aid *at p/ 12A+<
La"tly) we a!!ept a" "ettled law that on!e a !on-e""ion i" admitted in eviden!e an a!!u"ed may e
!onvi!ted "olely on it" "trength/ ,owever) a" a matter o- pruden!e and pra!ti!e) the !ourt ought to loo0
-or !orrooration o- the in!riminating part o- the !on-e""ion/ 6ee %$lic %rosec$tor * Lai %ong Y$en &
-rs $1G2&% 1 MLJ 12@ %% * (hong .oo /ee $1G&&% A MLJ 2G2@ )asi$llah in +ohd Ghazali * %% $1GGA%
A MLJ A21/
6887 In our part) we propo"e to adopt the rule o- pruden!e a" laid down in the"e !a"e"/
6827 (hu") we a"0 our"elve"< are there any independent !orrooration o- the !autioned "tatement
regarding the role o- the appellant in the -atal "hooting o- the de!ea"ed a" eing the driver o- the
motor!y!le in Eue"tion=
68-7 (he learned trial Judge) in hi" ground" o- 3udgment) held there are independent !orroorative
eviden!e in re"pe!t o- at lea"t 'three matters' "tated in the !autioned "tatement whi!h "how 'the
appellant was in*ol*ed in the case' *to orrow the word" o- the learned trial Judge+/ (hi" i" what
the learned trial Judge "aid<
Jow) de"pite the a!!u"ed7" !laim that everything in the !autioned "tatement i" untrue and made up y
the poli!e and that he wa" not involved in any way with thi" !a"e) C -ind that there i" independent
!orrooration in re"pe!t o- at lea"t three matter" "tated in the !autioned "tatement whi!h "how the
a!!u"ed wa" involved in the !a"e/ 6im ;ng ,uat had te"ti-ied that he wa" in the gold !oloured Proton
?ira when it wa" "topped y the poli!e/ Cn hi" !autioned "tatement the a!!u"ed had re-erred to the -a!t
that the gold !oloured Proton ?ira !ar driven y 7.h ,uat7 and 76iaw 'ei7 wa" "topped and they were
detained/ (here i" no eviden!e e-ore the Court whi!h poli!e o--i!er" who interrogated the a!!u"ed 0new
aout 7.h ,uat7 and 76iaw 'ei7 eing "o "topped to put that in-ormation into hi" !autioned "tatement a"
alleged/
(he a!!u"ed had al"o mentioned that two*2+ or three *A+ day" a-ter he had "howed .h ,uat and .h :ee
where the de!ea"ed7" o--i!e" were lo!ated) .h :ee "howed him *the a!!u"ed+ a !heEue -or 5M1 million
elonging to the de!ea"ed7" law -irm whi!h the a!!u"ed "aid he tore up a" it wa" u"ele"" "in!e it wa"
made out under a !ompany name/ (he eviden!e led in the pro"e!ution !a"e "how" that a !heEue -or
5M1 million in re"pe!t o- a land tran"a!tion wa" "tolen -rom the de!ea"ed7" o--i!e when the o--i!e wa"
urgled on 21/1/2001/ (here i" no eviden!e e-ore the Court whi!h poli!e o--i!er" who interrogated the
a!!u"ed 0new aout thi" !heEue -or 5M1 million eing "tolen "o a" to put that in-ormation into hi"
!autioned "tatement a" alleged/
Ct i" al"o in eviden!e that two *2+ la!0 rie- !a"e" whi!h were u"ed y the de!ea"ed and hi" partner
were "tolen during the urglary/ (he eviden!e "how" that the poli!e re!overed a la!0 rie- !a"e *;Bh/ P
110+ -rom the a!!u"ed7" hou"e/ Mr/ Lim ,eng Choo *P?20+ the partner o- the de!ea"ed !on-irmed in hi"
eviden!e that the la!0 ag re!overed -rom the a!!u"ed7" hou"e wa" the la!0 rie- !a"e u"ed y him/
,e wa" ale to identi-y the rie- !a"e -rom two -eature"< *a+ the !omination numer" o- the two lo!0"/
,e had "et them to hi" date o- irth i/e/ 721G7 -or 21"t 6eptemer/ (he rie- !a"e re!overed -rom the
a!!u"ed7" hou"e whi!h P?20 eBamined in Court had the !omination numer o- the le-t lo!0 !hanged
ut the right hand lo!0 wa" "till 721G7) whi!h wa" the !omination numer he had le-t the lo!0 "et to on
the date it wa" "tolen@ *+ a-ter he pur!ha"ed the rie- !a"e he had u"ed it -or a trip to :intulu when the
rie- !a"e travelled a" !he!0ed#in luggage/ ?hen he retrieved the rie- !a"e in :intulu he noti!ed a
di"tin!tive "!rat!h mar0 on the a!0 o- the rie- !a"e whi!h wa" not there e-ore/ P?20 pointed out in
Court a !urved "haped "!rat!h mar0 on the rie- !a"e whi!h wa" re!overed -rom the a!!u"ed7" hou"e/ C
a!!ept Mr/ Lim7" eviden!e on the point/ ,i" eviden!e i" not inherently improale and i" !on"i"tent with
the -a!t that a urglary had ta0en pla!e at hi" o--i!e when the rie- !a"e wa" "tolen/ (hi" eviden!e aout
the "tolen rie- !a"e mu"t e viewed again"t the -a!t that in hi" !autioned "tatement the a!!u"ed had
"aid that .h :ee had produ!ed to the a!!u"ed other item" "tolen -rom the de!ea"ed7" o--i!e/
Cn my 3udgment the aove eviden!e provide independent !orrooration o- the a!!u"ed7" involvement in
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thi" !a"e de"pite hi" denial and that what wa" "tated in hi" !autioned "tatement wa" not all made up y
the poli!e a" alleged/ 'or thi" rea"on) C -ind that the a!!u"ed7" !autioned "tatement "hould e given the
weight it de"erve" and not eB!luded -rom the eviden!e a" !ontented y the de-en!e/
6897 ?ith re"pe!t) we are unale to agree with the approa!h adoptedy the learned trial Judge/
68:7 ,aving !are-ully eBamined the eviden!e) we are o- the view that there i" no !orroorative
eviden!e what"oever o- that part o- the !autioned "tatement dire!tly pertaining to the identity o-
the driver o- the motor!y!le/
68;7 ?e note that there are no eyewitne""e" who !ould identi-y the rider" o- the motor!y!le a"
they were wearing !ra"h helmet" with the vi"or" down/ (hi" i" a!0nowledged y the learned trial
Judge when he "aid<
Jow that the .!!u"ed ha" denoun!ed everything "tated in hi" !autioned "tatement a" untrue -or the
rea"on" given y him) C mu"t !on"ider what weight to atta!h to it in the light o- the atta!0 mounted y the
.!!u"ed again"t it/ Cn doing "o C am a!utely aware o- the -a!t that that whil"t there are eye witne""
a!!ount o- the de!ea"ed7" "hooting to death) there i" no eye witne"" a!!ount o- the identity o- the
gunman and the driver o- the motor!y!le a" they wore !ra"h helmet" with the vi"or down/ (he only
eviden!e o- their identity !ome" -rom the .!!u"ed7" !autioned "tatement/
6807 (hu" there i" here a -inding o- -a!t y the learned trial Judge that the only eviden!e on the
identity o- the 0iller" !ome" -rom the !autioned "tatement o- the appellant/ (here i" no !ro""#
appeal y the pro"e!ution on thi" -inding o- -a!t y the learned trial Judge on the a"en!e o-
eviden!e *apart -rom the !autioned "tatement+ on the identity o- the 0iller"/
62,7 Cn our 3udgment) and with re"pe!t to the learned trial Judge) the 'three matters' in the
!autioned "tatement) namely) #
2) the narration aout the 7gold !oloured Proton ?ira !ar7@
2) the narration aout the 75M1 million !heEue7@ and
2) the narration aout the 7la!0 rie- !a"e7)
that the learned trial Judgere-erred to) and "aid to have een !orroorated y independen!e
eviden!e) have no earing what"oever on the -atal "hooting in!ident) parti!ularly) on the Eue"tion<
wa" the appellant the driver o- the motor!y!le u"ed y the gunman who "hot the de!ea"ed= Cn
other word") there i" no !orrooration on the in!riminating part o- the !autioned "tatement/
0Appeal allowed1 con*iction and sentence set aside2