[2008] 3 MLRH PP v.

Lee Jun Ho & Ors 705

PP
v.
LEE JUN HO & ORS

High Court Malaya, Kuala Lumpur

Mohamed Apandi Ali J
[Criminal Trial No: 45-46-2003]
30 December 2008

JUDGMENT
Apandi Ali J:
Introduction
[1] The three accused persons were jointly tried for murder. The charge against
them reads as follows:
Pertuduhan
Bahawa kamu bersama-sama dua lagi yang masih bebas, pada 21 April 2003,
antara pukul 3.30 dan 4.00 pagi, di Pusat Perubatan Arinaga, No. 86, Lorong
Maarof, Bangsar Park, dalam daerah Brickfields, Wilayah Persekutuan Kuala
Lumpur, dalam meneruskan niat bersama kamu semua telah melakukan
kesalahan bunuh dengan menyebabkan kematian Dr. Ariaratnam a/l
Thuraiayah dan oleh yang demikian itu kamu telah melakukan kesalahan
yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan dibaca bersama
seksyen 34 Kanun yang sama .

[2] At the end of the prosecution's case, I found that the prosecution had failed to
make out a prima facie case against all the three accused, and hence they were
acquitted and discharged, without calling for their defence.
Brief Facts Of The Case
[3] In the early morning of 21 April 2003, at about after 2am, PW9, Ping Thiam
Huat, a restaurant worker, went upstairs of the first floor of the premises of HSBC
Restaurant, which is his dwelling, to sleep. A short while later, PW9 heard a loud
scream coming from the direction of Klinik Arinaga, which is located next door to
HSBC Restaurant. The clinic is on the ground floor.
[4] Looking through a window, PW9 saw a man covered in blood running out of
the clinic. The man is a worker of Klinik Arinaga. PW9 saw two Chinese males
chasing the man. One of the Chinese males was armed with a knife. The man fell
down, and the armed Chinese man struck him. PW9 spontaneously shouted
"polis!" to scare them off. He then saw a Malay male standing infront of the Clinic.
706 PP v. Lee Jun Ho & Ors [2008] 3 MLRH

[5] A motor car with another Chinese male at the wheels, was seen outside of the
Clinic. Upon hearing the shout by PW9, another male Chinese came out from the
Clinic. There were all together five males: four Chinese and one Malay. They all
got into the motorcar bearing registration No. WJT 936, and left the scene.
[6] PW9 then went to the Clinic and saw blood on the floor at the entrance. Fear
took over him and he dare not venture further. He then went straight to the
Pondok Polis Bangsar, to report what he saw. He walked to the Pondok Polis
Bangsar. Upon arrival at the Pondok Polis, he was told by the police that they have
been informed of the robbery at the Clinic by a phone call. PW9 was not the one
who made the call.
[7] Soon later, at about 5.30am, the police arrived at the scene. The Forensic unit
came at about 6.30am. Next day, in the early morning of 22 April 2003, the police
managed to trace the motorcar WJT 936, said to be seen at the crime scene, as
described by PW9. The motor car was recovered from the house of Norhaizan,
PW10. The motor car was then taken to the Police Contingent Kuala Lumpur for
examination. Upon examination, traces of human blood were found in various
places in the car.
[8] Further investigations led to the arrest of the three accused persons, in the
following manner: OKT1, Lee Jun Ho surrendered himself to the police on 27
April 2003; OKT2, Choy Chin Chuan was arrested on 4 May 2003; and OKT3,
Nor Adzlan surrendered himself to the police, on 5 May 2003. The other two
males, who were also seen at the crime scene, were still at large.
Ruling On Statements Of Witnesses Who Cannot Be Called
[9] In the course of the trial, the prosecution attempted to tender two statements
recorded from two witnesses, namely Vasudevan s/o Perumal Chelladurai and
Vellaichamy Sockkalingam. For purposes of identifications the statements were
marked as ID66 and, ID67 respectively. The prosecution's application to tender the
witnesses' statements as evidence was made under the provisions of s. 32(1) of the
Evidence Act 1950 ; ie, on the basis that the witnesses cannot be found.
[10] Learned counsels for all the accused objected to the application on the
grounds that there has been a failure to comply with the prerequisites of s. 32 of the
Evidence Act 1950 .
[11] After hearing all the evidence in the prosecution's case, and upon hearing
submissions by all parties, but before making a decision at the end of the
prosecution's case, the court made a ruling on this matter.
[12] Before that, I made the following findings:
(i) Both witnesses are Indian nationals and both came to Malaysia, using
Indian Passports.
(ii) Both of them are workers at Klinik Arinaga and were present during the
[2008] 3 MLRH PP v. Lee Jun Ho & Ors 707

robbery incident on 21 April 2003.

(iii) The first witness, Vasudevan s/o Perumal Chelladurai was the one who
was injured in the robbery and his statement (ID66) was recorded by police
while he was still in hospital on 9 June 2003. The investigating officer visited
the witness, much earlier on 5 May 2003.
(iv) The second witness, Vellaichamy Sockkalingam, was also a worker of
Klinik Arinaga, and his statement (ID67) was recorded by police on 8 May
2003, on subsequently a further statement was recorded on 10 October 2003.
(v) Both witnesses are eye-witnesses as to what transpired during the robbery
at the clinic.
(vi) The Investigating Officer, PW20, DSP Rosly b. Hassn only made efforts
to trace these eye-witnesses after receiving a letter from the AG's chambers
dated 5 November 2007 for purposes of continued hearing of this trial, which
was then scheduled on 12-14 March 2008. Prior to that there was no action
taken to trace these witnesses, despite the fact that this case commenced with
trial, before another judge, way back on 18 April 2006.
(vii) The Investigating Officer seeks the assistance of the Interpol Section at
Bukit Aman on 16 January 2008 and then only on 5 February 2008 the
relevant information were faxed to their counterpart in New Delhi, India.
(viii) The Investigating Officer later seeks the assistance of the Immigration
Department, through a letter, sent on 4 July 2008.
(ix) It is clear that, the importance of the two witnesses must have been
realized after the s. 112 statements were recorded from them, sometime in the
middle of year 2003. Actions to trace these foreigners were only taken in year
2008, while in the midst of the trial. Such action, taken five years after
recording their statements, is obviously taken at the eleventh hour. It is most
unreasonable, in the circumstances, particularly so in a case under s. 302 of
the Penal Code . Surely, it is legitimate for the court to expect greater efforts to
be made to secure the attendance of such relevant witnesses in such a serious
charge. The gravity of the case demands greater efforts.

[13] Section 32 of the Evidence Act 1950 is an exception to the general rule that
hearsay evidence is inadmissible. Under s. 32(1) of the Act , one of the
circumstances under which such a statement becomes admissible is where the
person who made the statement "cannot be found". This was the basis upon which
the prosecution tried to invoke when they attempted to produce and tender ID66
and ID67 For a witness to be clothed as "who cannot be found" within the
meaning of s. 32(1) of the Evidence Act 1950 , such determination is a finding of
fact, of which the onus is upon the prosecution to prove.
[14] From facts adduced, I find that the police has failed to take all reasonably
708 PP v. Lee Jun Ho & Ors [2008] 3 MLRH

practicable steps to trace the witnesses. In fact there was not a single proactive
effort by the police to procure the attendance of such material, relevant and
important eye-witnesses.
[15] There was no attempt to fully utilize the prevailing and available provisions of
the Criminal Procedure Code, in order to secure the attendance of the witnesses.
The police failed to invoke the provisions of s. 47 and 49 of the Criminal Procedure
Code ; which empowers the court to issue a warrant in lieu of or in addition to
summon a witness and to require that person to execute a bond for his appearance
in court. The police also failed to invoke the provisions of s. 118(1) of the Criminal
Procedure Code whereby the police officer who desires any person, who is
acquainted with the circumstances of a case, to be present in court, shall require
that person to execute a bond to appear at the trial court. The prosecution also
failed to utilize the provisions of s. 396 of Criminal Procedure Code whereby the
Public Prosecutor may apply to court for any witness of any seizeable offence that
intends to leave Malaysia and that witness's presence at the trial to give evidence is
fatal for the trial, to be committed to the civil prison until trial or until he shall give
satisfactory security that he will give evidence at the trial.
[16] I recalled, as a Deputy Public Prosecutor for the states of
Kelantan/Trengganu in the late 1970s, at the height of the Vietnam War, when
there was an influx of refugees from Vietnam into Malaysia, there were many
serious seizable offences committed by the refugees. Important witnesses for such
offences also involved Vietnamese refugees. On my advise, the police then, did not
hesitate to seek recourse to the provisions of s. 396 of the Criminal Procedure Code
, in order to ensure the attendance of such witnesses at the Criminal trials. The law
is the same today. These legal provisions are available, to be utilized in such
circumstances as in this case.
[17] In view of the above circumstances especially of the omissions by the police to
take all reasonably practicable steps in tracing the witnesses, and guided by the
following cases (on s. 32(1) Evidence Act ):
PP v. Mohamad Said [1982] 1 MLRH 835 ; [1984] 1 MLJ 50;
PP v. Mohd Jamil bin Yahya & Anor [1993] 3 MLRH 402; [1993] 3 MLJ 702;
[1994] 1 CLJ 200; [1993] 2 AMR 3258 ;
PP v. Gan Kwong [1997] 2 CLJ Supp 433 ;
PP v. Chow Kam Meng [2001] 3 MLRH 173; [2001] 7 CLJ 387 .
PP v. Mogan Ayavoo [2004] 1 MLRH 206; [2004] 3 CLJ 623; [2004] 2 AMR
682 ; and
PP v. Norfaizal Mat (No. 2) [2007] 4 MLRH 358; [2008] 7 MLJ 792; [2008] 8
CLJ 576 .
[2008] 3 MLRH PP v. Lee Jun Ho & Ors 709

[18] I hold that the prosecution has failed to meet the requirements and the
prerequisites of s. 32(1) of the Evidence Act 1950 . I accordingly ruled that the
statements, ID66 and ID67 are inadmissible, as evidence for the prosecution.
The Prosecution's Case
[19] With the ruling against the admissibility of ID66 and ID67, there was no
direct evidence adduced to prove the charge against the three accused. The
prosecution relied solely on circumstantial evidence. As earlier narrated by PW9,
Ping Thiam Huat, five male persons were seen near the vicinity of the Klinik
Arinaga. The three accused were charged with two other persons who are still at
large. From evidence adduced, the two still at large are Wai San and Oliver.
[20] The case that was unfolded before the court is very sketchy. The three accused
were charged with committing murder, jointly with the two still at large and the
prosecution invoked s. 34 of the Penal Code as the common intention element.
One of the issues before the court is therefore, is there a common intention to
commit the offence of murder? Is the hatching of a pre-arranged plan credible and
clear to indicate such common intention?
[21] The only witness that was called to prove the element of common intention
was PW17, Chin Yew Eng. In his evidence, PW17 told of a conversation to rob
the clinic of drugs; this can be seen at p. 185 of the notes of evidence. PW17 also
stated that OKT1 then took out three parangs, similar to exh. P22B that was
recovered at the clinic.
[22] Under cross-examination, PW17 stated that during the alleged conversation of
the plan to rob, three other persons named Aeron, Alex and Game were present
(see p. 191 of the notes of evidence).
[23] It is noted that the said three persons who were present during the alleged
conversation of the plan were not called to give evidence or even make available
for the defence. In view of suggestions made about the alleged conversation during
the cross-examination of PW17, the calling or making available of the said three
witnesses is essential in the circumstances. Failure to do, would inevitably trigger
the adverse presumption under s. 114(g) of the Evidence Act 1950 .
[24] PW17 also told the court that after the incident at the clinic, OKT1 told him
that "they hurt the doctor and the staff" and narrated further that "Oliver started
slashing the doctor and Wai San slashed the staff: (see p. 188 of the notes of
evidence). Are these actions by the two still at large, Oliver and Wai San, can be
accepted as actions in furtherance of a common intention, to commit murder? It is
not clear.
[25] On the weapon used, although it was said that three parangs were shown,
only one parang (exh. P22B) was recovered. There were not finger prints on P22B.
As narrated by PW17, the three parangs were shown at the hotel. One parang was
seen, by PW9, to be in the hands of the assailant who chased the clinic worker
710 PP v. Lee Jun Ho & Ors [2008] 3 MLRH

outside the clinic and one parang was recovered inside the clinic. Is the parang
(exh. P22B) the actual murder weapon?. Who handled the parangs at the time of
the robbery, at the clinic remained unclear. There is no evidence to show or
indicate if any of the three accused were armed with the parangs at the time they
went to the clinic.
[26] The prosecution in this case elected to use s. 34 of the Penal Code , in order to
prove common intention. Section 34 speaks of "... in furtherance of common
intention". Case law that explained of such requirement of a pre-arranged plan or a
meeting of the minds to commit the common criminal act can be seen in:
Mahbub Shah v. Emperor AIR [1945] PC 118;
Chan Chun Ling & Anor v. PP [1955] 1 MLRH 775 HC ;
Tan Cheng Kooi & Anor v. PP [1972] 1 MLRH 210; [1972] 2 MLJ 115 HC ;
Choo Chang Teik & Anor v. PP[1991] 1 MLRA 280; [1991] 3 MLJ 423; [1991] 1
CLJ (Rep) 54 ;
PP v. Murugan Subramaniam & Ors [1996] 2 MLRH 770; [1996] 3 CLJ 921;
[1996] 3 AMR 3156 ;
Dato' Mokhtar bin Hashim & Anor v. PP [1983] 1 MLRA 7; [1983] CLJ (Rep)
101; [1983] 2 CLJ 10 ; [1983] 2 MLJ 232;
Ng Ah Kiat v. PP [1987] 2 MLJ 336; [1987] CLJ 241, and
Muhamad Safarudin Baba & Anor v. PP [2002] 1 MLRA 577; [2002] 4 MLJ 353;
[2002] 4 CLJ 210; [2002] 4 AMR 3980 .

From facts adduced and the circumstances of the case, I find that there is
insufficient evidence to infer that there existed common intention within the
meaning of s. 34 of the Penal Code . It would probably be a different ball game, if
s. 35 of the Penal Code was invoked by the prosecution. Section 35 speaks of
knowledge or intention and need not necessarily be common intention, when the
act is done by several persons.
Conclusion
[27] At the end of the prosecution's case, the learned Deputy Public Prosecutor
conceded that he is relying on circumstantial evidence to prove his case. To prove
a criminal case based on circumstantial evidence is admittedly an uphill task for
any Deputy Public Prosecutor. In this case, such circumstantial evidence, taken as
a whole, must give rise to an irresistible conclusion that the three accused persons
committed the offence of murder (see case of Chang Kim Siong v. PP [1967] 1
MLRA 123 ; [1968] 1 MLJ 36.
[28] I sympathized with the learned Deputy Public Prosecutor for having the
difficult task to prove common intention and the acts in furtherance of such
 [2008] 3 MLRH PP v. Lee Jun Ho & Ors 711

common intention, without the benefit of direct evidence of eye-witnesses. It is

most unfortunate for the learned Deputy Public Prosecutor that the two important
witnesses, Vasudavan and Vellaichamy, who were present at the clinic at the
material time, could not be called to throw better light onto the prosecution's case.
This misfortune is further compounded by the police's failure to take all reasonably
practicable steps to trace them in their efforts to ensure their attendance in court,
that could have qualified their statements to be admitted as evidence under s. 32(1)
of the Evidence Act . In the circumstances, at the end of the prosecution's case the
court is left with various doubts, as indicated above.
[29] Furthermore, it is not safe to convict the accused persons, when such evidence
is not clear and credible, in the event the accused persons elect to remain silent (see
the case of Balachandran v. PP [2004] 2 MLRA 123; [2005] 2 MLJ 301; [2005] 1
CLJ 85; [2005] 1 AMR 321 . And, I must add, it is not for the defence to fill up the
gaps or to clear the doubts in the prosecution's case (see the case of Ibrahim v. PP
[1962] 1 MLRH 431; [1962] 1 MLJ 235 .
[30] In conclusion, I find that, at the end of the prosecution's case, the prosecution
has not made out a prima facie case against all the three accused persons; and in
accordance with the provisions of s. 180(2) of the Criminal Procedure Code , all
the three accused persons are acquitted and discharged.

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