12 August, 2004
Daily Express
Kota Kinabalu: Former hotel waiter Azman Bakar @ Samsuddin Mustamin, 25, was discharged and acquitted by the High Court here of murdering Rural and Entrepreneurial Development Assistant Minister Datuk Norjan Khan Bahadar.
However, his freedom was short-lived - he was re-arrested immediately as he stepped out of court after Justice Datuk Ian H.C. Chin delivered his judgement Wednesday afternoon.
Prosecuting officer ASP Asmadi Yusuf said the re-arrest was related to a false Identity Card that Azman admitted possessing. It is also believed to revolve around theft of money and jewellery and failure to report to a police officer the discovery of a dead body. "He will be brought to court tomorrow for further remand," he said.
Azman was charged with murdering Norjan, 52, at Room 208 of Hotel Shangri-La in Bandaran Berjaya, here, between 4am and 6am on Feb. 11. Justice Chin ordered Azman to enter his defence on July 27 when he found that the prosecution had established a prima facie case against him.
In his 16-page judgement, Justice Chin said after considering all the evidence, a reasonable doubt as to whether it was the accused who had killed Norjan out of jealousy, lingered in his mind.
"Two Principles of Law must be borne in mind. Firstly, all the accused needs to do to earn an acquittal is to cast a reasonable doubt in the prosecution's case.
"Secondly, the prosecution carries the general burden throughout the case to prove the guilt of the accused beyond reasonable doubt.
"Where the accused's testimony is believed, then, of course, he is entitled to an acquittal. But even if the court does not believe his testimony, the court must still consider whether his evidence raises a reasonable doubt as to the truth of the prosecution evidence or the guilt of the accused.
"As to what is meant by 'proof beyond reasonable doubt', Denning LJ in Miller v Minister of Pensions [1974] 2 All ER 372,373 said this:
Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted to fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice.
"Finally, as to what that 'doubt' is, Sharma J in PP v Samin & Ors [1971] 2 MLJ 16 adopted the following definition:
It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
Justice Chin said the defence introduced evidence that threw new light in certain areas. One was maintenance staff Christopher Crispen Lijawi, who went to fix the air-conditioner in Room 208 and saw only one woman open the door and it was not Norjan.
"Similarly, I have no reason to reject the evidence of David Phang that Norjan had not stayed in the hotel before Feb. 10; she did not stay there as far back as three years."
He said the explanation of the accused of there being another person in the room added to the doubt of the case for the prosecution.
"It is difficult for me to disbelieve him merely on the ground that he is a good actor as popositioned by the prosecution because the evidence of the prosecution had, in some aspects, lent support to his case," he told the packed courtroom where family members of both parties were present.
The accused had also said he did not know Norjan before that night and asserted that he did not kill her and that there was another man in the room, Chin said.
"In view of the accused's denial that he knew Norjan, this called for a consideration of whether the motive, which the prosecution said is jealousy, had really been established beyond reasonable doubt."
Establishing motive in view of the evidence of the accused become crucial in order to tilt the scale against the accused, he said.
"Jealousy in the sense used in this case meant that the accused must have known Norjan before Feb 10.
"It will be recalled that for the prima facie case all that the prosecution had adduced with regards to this point, about the accused knowing Norjan, was that the accused, who was allegedly standing only five feet away and near the bar-counter, kept looking at Amir (Khan Amjad Khan) when Amir was seated beside Norjan," he said.
However, Justice Chin said, a receipt had now been produced to establish the fact that Amir was seated at table 60 and it was also established that 60 was not five feet from the accused but right at the other end of the room, and some six tables away.
"That was roughly about 30 to 40 feet away and that the distance made it difficult if not impossible to discern in artificial light whether a person was looking at you or not.
"Then there is the evidence of the maintenance staff who said that only Baria (Baria Mohamad) was in the room while the bathroom door was locked which contradicted that of Amir and Baria who had said both of them as well as Norjan were in the room.
"So, it means Amir was in the bathroom with Norjan, leaving Baria in the bedroom to deal with the maintenance staff. Here again, both Amir and Baria lied," he said.
Justice Chin said: "Given Amir's penchant to lie, like his denial in having had sex with Norjan and of his being in the bedroom instead of the bathroom, he can no longer be considered creditworthy when to those lies is added this newly discovered untruth about the distance the accused was seated away from him when he alleged the accused kept looking at him".
"I, certainly, after hearing the evidence for the defence, entertain a doubt as to whether the accused was really looking at Amir or looking in such way as to show the accused was acquainted with Norjan.
"The prosecution had urged that because the accused had attended to room service instead of the usual persons, this must mean the accused knew Norjan. But Eliza (Eliza alias Elizabeth Mikeh Laga Dohi) had said that she had asked Azman to take the hot milk to the room and it was not Azman who had asked for the task," he said.
Justice Chin said there were other matters that had been urged as supporting the inference that the accused knew Norjan "all of which I am of the view cannot be relied on".
On the prosecution's contention that it was not possible for the accused not to have known Norjan as it was difficult to comprehend why Norjan, a Muslim woman and a public figure at that, would expose her body in a room in darkness to a total stranger, Justice Chin said in her case it was not at all difficult to comprehend.
"She had already planned a rendezvous and had sex with Amir. This tells us much about her and her proclivity for sex.
"Professing a certain religion and belonging to a certain race does not automatically clothe one with purity or with virtue nor with any less likelihood of erring. So it should come as no surprise that Norjan did not mind a stranger massaging her. So, the matter of religion and race is neither here nor there," he said.
The prosecution had gone at length to put forth the posssible scenario as to what could have happened in the room and thereafter, particularly as to how Norjan could have been stabbed while the accused was having sex with her, all of which hinged upon the crucial factor of the accused knowing Norjan.
However, Justice Chin said for the prima facie case, there was only the evidence of Amir to support the prosecution's case that the accused knew Norjan but in the face of the evidence of the accused and the rejection of the evidence of Amir as being not creditworthy, that evidence of Amir "falls to pieces".
He said that the motive for the murder was required since the prosecution's case and that of the defence were delicately balanced, and establishing the motive would have tilted the scale in favour of the prosecution.
"This is not so for the reasons I have stated and the accused is therefore discharged and acquitted," he said.
Azman displays no emotion over verdict
Kota Kinabalu: The High Court was packed both inside and outside with media personnel, lawyers, law students, observers, friends and family members of the deceased, including the deceased's brother, Kawang State Assemblyman Haji Ghulam Haidar Khan and the deceased's son, Fadzil.
Some recalled that the other time the court saw such a crowd was on Jan. 18, 1994, during the verdict on the corruption case of PBS President and then Chief Minister Datuk Pairin Kitingan.
The tension was apparent on the faces of Senior Federal Counsel, DPP Noorbahri Baharuddin, DPP Amir Nasruddin as well as the accused's counsel, Alexander Siew.
At 2.20pm, as Justice Chin was ready to pronounce his verdict. Azman Bakar stood in the dock, pale-faced and anxious. Azman was expressionless as court interpreter Ong translated what the judge had said, i.e. "Öthe accused is therefore discharged and acquittedÖ"
When the judge left the bench, Azman appeared confused, then sat down and lowered and rested his head on the ledge. Escort police were already waiting to bring him out. But the crowd was slow to move.
Family members of the deceased looked dismayed. Asked to comment, Siew merely said:
"My client feels he is vindicated. He has all the while maintained his innocence."
When he looked up from the dock, Azman's eyes were red, although there were no visible tears. As he emerged from the courtroom, the handcuffs were immediately clasped on him again.
As regards the three offences as mentioned by the judge, the first, Azman may be charged again under Section 25(1)(e) of the National Registration Regulations, which carries a jail term of three years or a minimum fine of RM3,000 to a maximum RM20,000, or both for having a fake IC.
For the second offence of theft, he may be charged under Section 380 of the Penal Code, which carries a jail term that may extend to 10 years and liable to fine.
For the third offence of not disclosing a dead body, he may be charged under Section 202 of the Penal Code, which carries a jail term that may extend to six months or fine, or both.
Ghulam: Family sad but accept verdict
NORJAN's brother, Ghulam, was teary but calm, as reporters swarmed around him. "The family feels sad that the decision was such. But we respect the decision of the court," he said.
A woman, Ratna Beddu, 28, whom reporters noticed hovering near Azman as he was led to the court lockup after being rearrested, later claimed to be a cousin.
She claimed she had never met him, but that their uncle had told her about Azman's case.
She said since she was staying in KK, she made it a point to come and offer him some courage. "I'm happy to be able to meet him," she said.
