DPP murder appeal: Insufficient evidence to sustain murder charge - Lawyer

Lawyer Kitson Foong, who is representing S. Ravi Chandaran, one of the six men convicted for killing Morais, said an accomplice who turned prosecution witness merely testified that an abduction had taken place and did not touch on Morais' murder.

He said the charge against his client should have been for kidnapping under Section 3 of the Kidnapping Act and not for murder under Section 302 of the Penal Code.

He also said the eleven grounds that the High Court judge used to sustain the murder charge did not support the offence of murder but appeared to corroborate that an abduction had taken place.

Foong also said the prosecution tried to get the 54th witness (G. Gunasekaran) to give evidence relating to the murder but he never said so.

Gunasekaran was initially charged with the six men for killing Morais but the charge was later withdrawn after he pleaded guilty in the Sessions Court to a charge of disposing of the body of the deceased. He was sentenced to two years' jail from Sept 15, 2015, the date of his arrest. He was then called as a prosecution witness.

Foong also argued that Gunasekaran's evidence ought to be corroborated in light of his active participation in the purported commission of the offence. He said the High Court had also found him (Gunasekaran) to be an accomplice in the purported commission of the murder.

He said High Court judge Datuk Azman Abdullah's (now Court of Appeal judge) findings that Gunasekaran's evidence was corroborated were tantamount to a serious misdirection.

He said Gunasekaran's active role as an accomplice would raise the likelihood of him fabricating or embellishing his evidence in favour of the prosecution for self-preservation which in turn necessitates his evidence to be corroborated.

"The High Court judge erred in law and in fact in ruling that there was common intention of all the six accused persons to murder Morais," Foong submitted before the three-member panel comprising Justices Datuk Hadhariah Syed Ismail, Datuk Ahmad Zaidi Ibrahim and Datuk Azmi Ariffin in the appeal by the six against their convictions and death sentences for the murder.

Former military doctor Colonel Dr R. Kunaseegaran, 60; Ravi Chandaran, a former money lender, 52; and four other individuals - unemployed R. Dinishwaran, 31; A.K. Thinesh Kumar, 30; M. Vishwanath, 33; and S. Nimalan, 30 - were sentenced to death by the High Court on July 10, 2020 after they were found guilty of murdering Morais.

The offence was committed somewhere along Jalan Dutamas Raya Sentul and No. 1, Jalan USJ 1/6D, Subang Jaya, between 7 am and 8 pm on Sept 4, 2015.

Morais, 55, was reported missing on Sept 4, 2015. He was last seen leaving his apartment at Menara Duta in Kuala Lumpur in a Proton Perdana. His body was found in an oil drum filled with cement at Persiaran Subang Mewah, Subang Jaya, on Sept 16, 2015.

Earlier, the court also heard submissions from Nimalan's lawyer Amer Hamzah Arshad, who argued that the murder conviction of his client by the High Court was unsafe as his client only showed the location where the drum containing Morais' body was disposed of but he did not know the content of the drum.

He said at best, the charge against his client should be for abduction of the deceased or disposing of evidence but certainly not to murder the deceased.

Lawyer Datuk N. Sivananthan represented Kunaseegaran, M. Manoharan acted for Dinishwaran, Burhanudeen Abdul Wahid for Thinesh Kumar and Afifuddin Ahmad Hafifi for Vishwanath while deputy public prosecutors Datuk Dusuki Mokhtar, Mohd Fairuz Johari and Mohd Fuad Abdul Aziz appeared for the prosecution.

The court fixed Dec 14 to resume hearing.