THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 186 ENGLISH

Baharudin @ Kadir Bin Abu Nawas v Public Prosecutor
Suit Number: Criminal Appeal No. S-05(M)-104-02/2017  

Criminal law – Murder – Conviction – Death sentence – Appeal

Criminal law – Whether the trial court failed to sufficiently consider the appellant’s defence in particular the defence as stated in his cautioned statement – Whether such failure deprived the appellant of his right under section 182A(1) of the Criminal Procedure Code – Whether the trial court ought to have invoked adverse inference under section 114(g) of the Evidence Act 1950 for the prosecution’s failure to call a material witness to testify or offer him to the defence

Criminal law – Defence of sudden and grave provocation – Test – Elements to be established for provocation to be raised in defence to a charge of murder – Whether the defence open to the appellant

JUDGMENT

[1] The appellant in the appeal before us is appealing against the decision of the High Court which convicted and sentenced him to death for an offence of murder under section 302 of the Penal Code. We shall now set out the charge upon which the appellant was convicted and sentenced as aforementioned-

"Bahawa kamu pada 14 November 2014 jam lebih kurang 6.30 pagi, bertempat di kawasan rumah kongsi, Hutan Simpan Bukit Pitan, Ulu Segama, di dalam daerah Lahad Datu, di dalam Negeri Sabah, telah melakukan bunuh dengan menyebabkan kematian ke atas Rahman Bin Ruma (L/47 tahun, Bangsa Bugis, Passport No. A7488899), oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan.”

[2] To appreciate the contentions that have been raised before this Court, it would be desirable to state briefly the material facts which we have garnered from the evidence led by the prosecution. On 14.11.2014 circa 6.30 am, the deceased, his son, Mohd Hafizudin (PW3) and his niece, Ummu Aida Binti Abu Bakar (PW2) were by the road side within the area of the workers quarters at Hutan Simpan Bukit Piton, Ulu Segama, Lahad Datu. He was waiting for his workers before sending them to their place of work. The appellant, at that particular time, suddenly appeared and slashed the deceased with a parang. The deceased’s son, PW3, ran towards the workers quarters and shouted to his mother, Cahaya Binti Tarong (PW1) who was in the kitchen telling her that the deceased was slashed. PW1 then rushed out of the house and at the scene of crime she saw her husband, the deceased, lying by the road side. The appellant, upon seeing PW1, then chased her with the parang in his hand. PW1 ran towards the back of her house but she stumbled and fell to the ground twice. The appellant slashed her on the face once when she fell down for the second time. PW1 then ran into the forest behind her house with the appellant in close pursuit. She hid in the forest for about 20 minutes and only came out after the appellant left the scene. She was then sent to a hospital in Lahad Datu.

[3] The police was informed about the murder and when they arrived at the scene of crime, they searched for the appellant but it was to no avail. The police then sought assistance of the staff of the Forestry Department stationed at the Bukit Pitan Forest Reserve. According to Paramus bin Masa’ aer (PW4), a forest ranger with the Forestry Department on duty at the guard post of the said forest reserve, he and the other staff of the said department detained the appellant at about 7 pm on the same day. At the time the appellant was detained he had a parang with him (Exhibit P6(3)). The appellant was thereafter handed over to the police.

[4] At the close of case for the prosecution, the learned trial judge (the learned judge) found that the deceased died and his death was caused by the injuries sustained by him. Dr. Amir Saad bin Abdul Rahim (PW9), a forensic pathologist, who conducted the postmortem on the deceased testified that the deceased sustained multiple injuries on the left side of the deceased’s head, left forearm, left hand, left thumb and the left back of the chest. Of these injuries, according to PW9 and the postmortem report (Exhibit P11) prepared by him, one particular injury on the left side of the head, below the vertex across midline measuring 25 x 1 centimeters was fatal and led to the deceased’s death. In fact, the wound “slashed through the scalp, transacted the right and left trapezius muscle, cut through the C2 cervical vertebra, severed the right and left vertebral arteries, and the spinal cord…”. PW9 also confirmed that the injuries were caused by a sharp, heavy and long object with sharp edges and agreed that the parang (Exhibit P6(31)) might have caused these injuries. The first essential element of the offence under section 302 of the Penal Code, that the deceased was dead was thus proved by the prosecution.

[5] Another essential element of the offence under section 302 of the Penal Code which the prosecution is required to prove is whether the appellant was the one who had inflicted these injuries on the deceased. The learned judge considered and accepted the evidence of PW1 that she heard her son (PW3) shouting telling her that the deceased had been slashed. When she rushed out from her house, she saw the deceased lying by the road side. The appellant on seeing PW1, chased her with the parang in his hand. PW1 identified the parang (Exhibit P6(3)) as the one she had bought earlier and given it to the appellant for use at work. PW1 ran towards her house. However, she stumbled and fell to the ground twice. Her sarung was dislodged. When she fell down for the second time, the appellant slashed her on her left forehead causing permanent lost to her left eye. She was unconscious temporarily and when she regained her consciousness, she went to the clothes line and took a sarung to cover her private part. The appellant, who was in front of his house, which was next to her house, chased PW1 again with the parang. PW1 ran towards the forest where she hid for about 20 minutes. The learned judge found that PW1’s testimony was not seriously challenged by the defence and that she was telling the truth. Her testimony was accordingly accepted by the learned judge.

[6] The prosecution called two child witnesses namely PW2 who was 8 years old and PW3 who was 7 years old to testify on its behalf. The learned judge, upon undertaking an examination of these witnesses pursuant to section 133A of the Evidence Act 1950, allowed PW2 to testify on oath as His Lordship was satisfied that she possessed sufficient intelligence.

[7] However, as for PW3, the learned judge was of the opinion that, unlike PW2, PW3 could not understand the nature of an oath but he knew he was not supposed to tell lies. As such, His Lordship held that PW3 could give unsworn evidence whilst reminding himself of the need for corroboration to such evidence by other material evidence.

[8] The learned judge proceeded to consider the evidence of PW2. In that tragic morning, PW2 wanted to follow the deceased to send the workers to the place where they worked. The deceased and PW2 stood outside the deceased’s car whereas PW3 was seated in the vehicle. The deceased was standing at the back of the car and PW2 was standing about 4 meters away. According to PW2, the appellant suddenly came and slashed the deceased with the parang on the neck 3 times. However, PW2 did not see the appellant’s face. She then shouted to PW3 to run who in turn ran towards the house calling for PW1. PW2 too ran towards the back of the house with the appellant pursuing her. It is also her evidence that the appellant did not say anything before he slashed the deceased.

[9] PW3 in his evidence testified that he heard PW2 shouted asking him to leave the car. As he left the car, he saw the deceased lying on the ground. He also saw a man whom he could not identify holding a parang at the scene of crime. He ran towards the house and met PW1.

[10] The learned judge also considered the evidence of PW4 whose evidence showed that he and 18 other staff of the Forestry Department had detained the appellant who was sitting by the road side at about 7 pm on the same day still holding the parang.

[11] The prosecution relied on circumstantial evidence to show that it was the appellant who inflicted the injuries in question on the deceased. The learned judge in this regard observed that nobody saw who inflicted the injuries on the deceased. However, based on the evidence outlined above, the following findings of fact were made by the learned judge:

(i) the deceased was attacked by the road side not far from the house;

(ii) soon after the attack, the assailant went after PW1 who just came out from her house;

(iii) the attack on the deceased and the act of chasing PW1 and PW2 formed one continuous act committed by the appellant;

(iv) the appellant had been identified by PW1 as the one who ran towards her holding the parang;

(v) besides PW1, PW2, PW3, the appellant and the deceased, there was no one else at the scene of crime at the relevant time;

(vi) in view of the proximity of time and place between the attack on the deceased and PW1, it was highly probable that the appellant was the one who slashed the deceased with the said parang;

(vii) when the appellant was detained at about 7 pm on the same day, he was seen by PW4 still holding the same parang (Exhibit P6(3));

(viii) the evidence of the prosecution witnesses were not seriously challenged by the defence and their evidence was consistent especially the evidence of PW1, PW2 and PW3;

(ix) in the case of PW3, his unsworn evidence was corroborated by the evidence of PW1; and

(x) the witnesses were truthful and had given credible evidence.

Based on the above findings, the learned judge was satisfied that the appellant was the one who inflicted those injuries on the deceased.

[12] The next element of the offence which the learned judge had considered was whether the act of the appellant in inflicting the injuries on the deceased came within the ambit of any or all of the 4 limbs under section 300 of the Penal Code. The learned judge correctly stated that the element of intention or knowledge was an essential ingredient of the offence of murder and that such element could be inferred from the surrounding facts of the case, including the conduct of the appellant during or after the commission of the offence. The learned judge on this point, accepted the evidence of the forensic pathologist namely PW9 that the injury on the left side of the head was the fatal injury that had caused the death of the deceased. PW9 testified that this injury was too serious which in the ordinary cause of nature would cause the death of the deceased. The learned judge found that the deceased head was almost severed indicating the degree of the force that had been applied by the appellant whilst inflicting the said injury on the deceased. It also indicated the degree of deliberateness on the part of the appellant in carrying out the act. In view of this deliberate act, the learned judge concluded that the appellant had the intention of causing the death of the deceased under limb (a) of section 300 of the Penal Code.

[13] Having undertaken a maximum evaluation of the evidence, the learned judge found that the prosecution had adduced sufficient evidence in respect of each essential element of the offence of murder under section 302 of the Penal Code. The learned judge accordingly held that the prosecution had successfully proved a prima facie case against the appellant on the charge under section 302 of the Penal Code and called upon the appellant to enter his defence.

[14] The learned judge explained to the appellant the 3 elections on the mode of giving evidence available to the defence. The appellant elected to proceed to testify as a witness. The defence in a nutshell and as was found by the learned judge was that the appellant had no intention to kill the deceased but merely intended to scare him off after the deceased and his worker namely Akhbar who lived at the same quarters had, the night before the murder, provoked the appellant by continuously insulting him and his wife saying that his wife was fit to be a prostitute. In the morning in question, he overheard the conversation between the deceased and his workers that they intended to take the appellant to the jungle instead of taking him to the place of work that early morning with the purpose of killing him so that the appellant’s wife could be made or offered as a prostitute by the workers.

[15] The learned judge observed that the above line of defence was suggested to the prosecution’s witnesses, in particular PW1 during the prosecution’s case. However, PW1 denied the suggestion. The learned judge held that it was hard to believe the appellant’s story because of his short stay with the other workers prior to the incident. The appellant arrived at the workers quarters barely 2 days when the incident occurred. It would be improbable, the learned judge said, that the appellant would be subjected to such humiliation and insult when he was a total stranger, a new comer to that place. The learned judge, moreover, found that the deceased and his wife had been nice to the appellant by helping him to buy the basic necessities for his family’s use including cooking utensils and food.

[16] The defence evidence that one Akbar had been insulting the appellant the night before also did not escape the attention of the learned judge. The appellant on this crucial point testified that in the morning of the incident, he overheard some of the workers were planning to kill him and make his wife a prostitute and this had led the appellant to confront the deceased and ask him why he wanted to kill the appellant. It was when the deceased did not respond nor say anything, the appellant thought that he would be killed and his wife would be made a prostitute. The appellant did not allege that he had a quarrel with the deceased on that fateful morning. In fact, PW2 testified that the appellant suddenly appeared at the scene and attacked the deceased. She was not cross-examined as to whether there was an argument between the appellant and the deceased prior to the attack.

[17] Having examined the evidence, the learned judge was unable to see any evidence of sudden and grave provocation in this case. His Lordship found that the appellant was under a perception that his colleagues had planned to kill him and that the deceased’s wife had been humiliating him. However, the appellant contradicted his own evidence when he also told the court that the deceased and his wife had been helping him and his family by providing the basic necessities for their use.

[18] In fact, the learned judge went further to say that even assuming that it was true that the appellant was ridiculed by the other workers starting from the day he arrived at the workers quarters, His Lordship did not see why the defence of sudden and grave provocation would be available to the appellant. He had the whole night to think prior to the incident as well as to reflect upon himself and take any appropriate action. The learned judge concluded that the evidence clearly showed the appellant as someone who was in full control of himself prior to the incident holding that there was no sudden and grave provocation or that he was deprived of his self-control. He was able to think and decide to strike first against the deceased who was unarmed and did not do or say anything before he was attacked. The learned judge accordingly found that the appellant failed to cast a reasonable doubt in the prosecution case and that the prosecution in the result had proved the case against the appellant beyond reasonable doubt. The appellant was convicted on the charge and sentenced to death by the learned judge.

[19] The petition of appeal in the instant case sets out 8 grounds upon which the defence seeks to ventilate its arguments in this appeal. However, before this Court, 2 principal grounds provide the defence a platform in its submission that the learned judge had committed an error in his decision. In the first ground, we were pressed with the argument that the learned judge had failed to sufficiently consider the appellant’s defence in particular the defence as stated in his cautioned statement which was tendered as Exhibit D1. As such, learned counsel argued, the appellant had been deprived of his right as stated under section 182A(1) of the Criminal Procedure Code which mandatorily requires the court to consider all the evidence adduced before it and decide whether the prosecution had proved its case beyond reasonable doubt. It was urged for the appellant as a second ground that Akhbar, who was allegedly at the scene of the incident, was not called by the prosecution case nor offered to the defence at the end of the prosecution case. The learned judge therefore ought to have invoked section 114(g) of the Evidence Act 1950 for the prosecution’s failure to call Akhbar to testify or offer him to the defence.

[20] What comes sharply into focus in the first of these contentions is the appellant’s cautioned statement. The learned Deputy Public Prosecutor contended that the cautioned statement was the same as and consistent with his defence. We subjected the appellant’s oral evidence in the court below and the cautioned statement to our anxious scrutiny. We will not attempt to delve deeper into the cautioned statement and the appellant’s oral evidence in order to show their similarity. Suffice for us to say in a nutshell that the oral testimony of the appellant is based on the cautioned statement and they are identical. As the appellant’s evidence and the cautioned statement would show, the appellant met the deceased in the evening of 12.11.2014 and that he agreed to work with the deceased whereupon the deceased on 13.11.2014 at about 6 am took the appellant, his wife and 2 children to the workers quarters at Hutan Simpan Bukit Paton, Ulu Segama, Lahad Datu arriving there between 9 am to 10 am. He was given accommodation next to the deceased’s quarters. His allegation of insults, humiliation and provocation coming from Malik, Akhbar and PW1 occurred on 13.11.2014. The words that they allegedly used on the day in question were repeated by the appellant in the course of his oral testimony, albeit admittedly, with some minor differences. The line of questioning adopted by learned counsel without doubt was based on the appellant’s cautioned statement and his answers were consistent with the narrative that he had given in his cautioned statement on the events leading to the murder. It is manifestly significant to say that we could discern no difference between the appellant’s oral testimony and his cautioned statement.

[21] The learned judge moreover, had clearly stated that the evidence was considered in totality in rejecting the appellant’s defence of provocation. When the evidence was considered in its entirely, it must be taken or is implicit that the learned judge, in rejecting the defence evidence, had also considered and consequently rejected the contents of the appellant’s cautioned statement. The fact that the learned judge did not mention Exhibit D1 specifically in his judgment was not fatal and could not affect His Lordship’s assessment of the entire evidence which, in our judgment encompassed Exhibit D1. In any event, the fact that the appellant had undoubtedly regurgitated his cautioned statement in his oral testimony, His Lordship’s assessment of the defence evidence is in our judgment clearly adequate and the learned judge could not be said to have completely failed to direct his mind to the cautioned statement.

[22] We would in this regard adopt the law as explained by this Court in Sainal Abidin bin Mading v Public Prosecutor [1999] 4 MLJ 497 at page 507-

“Though the learned judge in his judgment did not expressly made specific finding of rejecting the contents of the cautioned statement since they are more or less the same as his oral evidence and such defence was rejected by him for the reasons stated by him and that he accepted the evidence of PW4 and PW5, it is implicit that he must in the circumstances have rejected the contents of the cautioned statement as well.”

Similarly, this Court in the case of PP Iwn Losali & Satu Lagi Dan Satu Rayuan Lain [2010] 8 CLJ 560 had occasion to consider a similar issue wherein Raus Sharif, HMR (as His Lordship then was) held-

"Walaupun hakim bicara tidak merujuk kepada percakapan beramaran tertuduh kedua, perkara ini dengan sendirinya tidak menyebabkan sabitan terhadap tertuduh kedua menjadi batal. Ini adalah kerana apa yang dikatakan oleh tertuduh kedua dalam percakapan beramarannya adalah sama dengan apa yang dikatakan semasa perbicaraan. Begitu juga dengan keterangan tertuduh keempat dan percakapan beramarannya yang menyatakan perkara yang sama. Adalah tidak perlu hakim bicara merujuk kepada keterangan-keterangan itu satu persatu. (perenggan 60)”

In Ekene Boniface Ochiada v Public Prosecutor [2018] 5 CLJ 17 it was held yet again by this Court that where the trial judge did not consider and expressly make a specific finding in rejecting the contents of the cautioned statement, but the contents thereof were more or less the same as his oral testimony and such testimony was rejected by the learned judge, it was implicit that he must in the event be taken to have rejected the contents of the cautioned statement as well.

[23] For these reasons, we do not think anything material turns upon this argument. In our judgment, the learned judge had duly considered all the evidence adduced before the trial court and decided that the prosecution had proven its case beyond reasonable doubt in accordance with section 182A(1) of the Criminal Procedure Code.

[24] The second point raises the question concerning Akhbar who was not called by the prosecution to testify nor offered to the defence. It was the position adopted by the defence that the learned trial judge ought to have invoked section 114(g) of the Evidence Act 1950 for such failure. The role of Akhbar in this unfortunate incident, according to the defence, was that Akhbar had insulted and provoked the appellant the night before the murder. The appellant understood such insult to mean that Akhbar appeared to be suggesting that his wife was a prostitute. The appellant testified that when the appellant attacked the deceased, the workers and PW1 tried to help the deceased. The workers fought with him and he retreated. However the deceased’s workers attacked him and he could not escape. The appellant then attacked one of the workers namely Akhbar and in the process had severed his ear. It had been pressed upon us in this Court that the learned judge failed to consider that the injuries inflicted on Akhbar, PW1 and the deceased was due to sudden and continued provocation, ergo his action fell under Exception 1 of section 300 of the Penal Code.

[25] We would start off, in dealing with the defence contention on this issue, by considering the evidence of the investigation officer, Inspector Mohamad Soffi bin Jamal (PW8). From the perusal of his evidence during cross-examination, we accept that Akhbar had been deported by the Immigration Department despite PW8’s request to the Immigration Department Tawau not to do so. The learned judge considered PW8’s evidence that the Immigration Department could not detain illegal immigrants such as Akhbar at the Immigration Temporary Detention Centre Tawau for a long period of time. The general rule is that an adverse inference will be drawn against the prosecution pursuant to section 114(g) of the Evidence Act 1950 where a material witness or evidence is not produced by the prosecution or the prosecution withholds certain material evidence it possesses [see Munusamy v Public Prosecutor [1987] 1 MLJ 492]. Also, it is settled in our law that the presumption does not arise if the witness is offered to the defence [see Samsudin v Public Prosecutor [1962] 1 MLJ 405 (CA)]. In the case before us, there is no evidence to suggest that the prosecution had attempted to withhold any material evidence or deliberately refused to produce the witness or offer him to the defence. Akhbar’s deportation in truth had made it manifestly impossible for the prosecution to call him to testify or offer him to the defence. The prosecution’s explanation was adequate and acceptable. In our judgment, on the evidence before this Court, we cannot accept the position taken by the defence that the failure to call Akhbar or offer him to the defence would trigger an adverse inference under section 114(g) of the Evidence Act 1950. The learned judge was in our judgment correct in not invoking the presumption.

[26] The point that we want to make as well concerns the treatment by the learned judge of the defence of provocation. We would like to emphasize that the defence of provocation is found in both the oral testimony and the cautioned statement of the appellant. The reason why the defence raised the issue of Akhbar is also connected to the issue of provocation as he was alleged to be one of the workers who had insulted the appellant and his wife the night before the murder. A pertinent question which immediately arises therefore is whether there was any evidence upon which we could safely say that sudden and grave provocation occurred which caused the appellant to act the way he did.

[27] We would once again stress that it is the defence case that the provocation alleged to have proceeded from the deceased’s workers and PW1 led to the murder of the deceased which according to the appellant he had no intention of committing. The provocation began when the workers continuously insulted the appellant and his wife and the appellant believed that the deceased had arranged for his workers to kill him and made or offered his wife as a prostitute. This is the position adopted by the defence.

[28] According to the appellant, Akhbar, Malik and PW1 had insulted him verbally. The appellant, we observe, never mentioned that the deceased had ridiculed or provoked him. It is to be remembered that PW1 in her testimony told the court that the deceased and herself had been nice to the appellant by buying household necessities for his family’s use including food and cooking utensils. The appellant admitted that the deceased and PW1 had helped him to provide these necessities for his family. PW1 denied the suggestion during cross-examination that the workers, during the dinner at her house, were talking about the appellant’s wife and that they wanted to make her a prostitute. To another suggestion during cross-examination, PW1 also denied calling the appellant’s wife prostitute because she had eloped with the appellant. PW8, the investigation officer, in his evidence told the court that he carried out the investigation into the alleged provocation and found it to be unfounded.

[29] Further, not only did the learned judge consider the above evidence, His Lordship had also considered the fact that the appellant arrived at the workers quarters barely 2 days when the incident took place. We would say that by our own reckoning, it was hardly 24 hours from the time he arrived there between 9 am to 10 am on 13.11.2014 that the appellant killed the deceased at approximately 6.30 am on 14.11.2014. Hence, based on the prosecution’s evidence and the defence narrative, we agree with the learned judge that it would be highly improbable that the appellant and his wife could be insulted with such gravity when he was a total stranger, a new comer to the place. It would be completely unthinkable and somewhat bizarre so to speak, for the workers and PW1 to insult the appellant given the fact that they hardly knew the appellant.

[30] Before the appellant appeared at the scene of crime and slashed the deceased, there was no evidence of a quarrel between him and the deceased and he did not respond to the query which the appellant said he had made, but he simply attacked the deceased with such force and severity without the deceased saying a word. This evidence was adduced through PW2 who was at the scene of crime. It is to be noted that PW2’s evidence was completely unchallenged as she was not cross-examined by the defence at all. The appellant never said that he had a quarrel with, or been provoked by, the deceased in the morning in question. The learned judge correctly held that since it appeared that the deceased had not said anything to the appellant, the non-calling of other workers including Malik and Akhbar was not fatal and did not cast a reasonable doubt in the prosecution case. The allegation of provocation, we find, remains as the appellant’s version which ought to be dismissed as a clear fallacy. On the evidence of the present case, there is in truth no evidence of provocation given by the deceased which had caused the appellant to attack and inflict that fatal injury to the deceased.

[31] Nevertheless, assuming that the appellant was provoked, we turn to the appellant’s own testimony that it was Malik and Akhbar who insulted and humiliated him. But, in the events that happened, the appellant did not kill Malik or Akhbar, it was the deceased whom he had instead attacked and killed in consequence. As we have last mentioned, at that material time there was absolutely no evidence of any quarrel or argument between the appellant and the deceased. The defence evidence showed that the appellant confronted the deceased and asked him why he wanted to kill the appellant but the deceased did not say anything. Contrary to this defence evidence, the unchallenged testimony of PW2 who was at the scene of the incident clearly revealed that the appellant suddenly appeared and attacked the deceased. The learned judge was thus correct in accepting PW2’s testimony on this point and rejected the defence evidence.

[32] The learned judge next proceeded to hold that the defence of sudden and grave provocation was not open to the appellant. We entirely agree with His Lordship’s reasoning that the appellant had time to reflect upon himself and to take any appropriate action to the problem the appellant faced. He had the whole night to think prior to the incident. In our judgment, the learned judge was right when His Lordship held that the appellant was in full control of himself prior to the incident, that there was no more sudden and grave provocation and on the contrary, his action was motivated by his misperception of the events occurring around him that his fellow workers had planned to kill him. A consideration of the authorities shows that an act of provocation would be sudden when it is recent and grave so that the accused was for the moment no master of his own understanding and that there was no time for the passion to cool down. However, if the act was done after the first excitement had passed, and there was time to cool, it is murder [R v Hayward (1833) 6 C. & P. 157; Khairati Ram A.I.R 1953 Punj. 241; Indian Penal Code, Prof. S.N. Misra, page 491]. The action of the appellant therefore could not be characterised as grave and sudden as to provoke the appellant to inflict that fatal injury on the deceased. Clearly, the appellant was not deprived of the power of self-control at that material time. After the long lapse of time, he was able to think and decide to strike first and kill the deceased in the morning of that fateful day who, as the evidence had shown, was unarmed. The law, as we understand it, is that the fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation [Madhavan v State of Kerala, 1966 Ker.L.T. 112].

[33] By virtue of Exception 1 to section 300 of the Penal Code, "culpable homicide is not murder if the offender, whilst deprived of the power of self­-control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any person by mistake or accident”. We wish to express our understanding of the above provisions by simply stating that there are 4 main elements which must necessarily be established by the defence in order that provocation may be raised in defence to a charge of murder. These are-

a. there must be provocation;

b. the provocation must be grave and sudden;

c. by reason of such grave and sudden provocation, the offender must have been deprived of the power of self-control; and

d. the death was caused to the person who gave the grave and sudden provocation, or whilst deprived of the power of self­-control by such grave and sudden provocation, the death was caused to any other person by mistake or accident.

[34] We bear in mind that whether the provocation was grave and sudden enough to prevent the offence from amounting to murder, is a question of fact. This is very clearly stated in the Penal Code by way of an explanation to Exception 1. Hence, each case is to be considered according to its own facts and circumstances. The Court of Appeal in the case of Che Omar Mohd Akhir v PP [2007] 3 CLJ 281 discussed and explained the law on grave and sudden provocation at page 292 as follow:

“[14] The question whether the provocation was grave and sudden such as to make the accused to lose his self-control is a question of fact and not one of law (see Explanation to Exception 1 to s. 300 of the PC; Kuan Ted Fatt v Public Prosecutor [1985] 1 CLJ 150; (Rep) 174 FC). Each case is to be considered according to its own facts. The court must decide on the particular circumstances of that case whether the provocation was grave and sudden enough to permit an indulgent view of the crime committed by the accused, (see Ratanlal & Dhirajlal, The Indian Penal Code, 29th edn. 2002 p 1194).

[15] The test of grave and sudden provocation was clearly stated in the Supreme Court case of Lorensus Tukan v. Public Prosecutor [1988] 1 CLJ 143; [1988] 1 CLJ (Rep) 162. Seah SCJ in delivering the judgment of the court said:

The test of ‘grave and sudden’ provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control (see Nanavati v. State of Maharashtra AIR [1962] SC 605,530).

In determining what amounts to grave and sudden provocation the court may take into account the habits, manners and feelings of the class or community to which the accused belongs, but not of the particular idiosyncracies of the accused: Madhavan v. State of Kerala AIR [1966] Ker. 258 (260).

[16] It is also said that the defence of provocation is a dual one: the alleged provocative conduct must be such as (i) actually causes in the accused, and (ii) might cause in a reasonable man, a sudden and temporary loss of self-control as the result of which he kills the deceased.

[17] Thus, in order to successfully set up provocation as a defence for the reduction of the offence of murder to one of culpable homicide not amounting to murder, it is not enough to show that the accused was provoked into losing his self-control; it must be shown that the provocation was grave and sudden and must have by its gravity and suddenness caused a reasonable man to lose his self-control and induced him to do the act which caused the death of the deceased. In determining that question the court may also consider, along with other factors, the nature of the retaliation by the accused, having regard to the nature of the provocation.”

[35] Based on the reasons discussed above and mindful of the trite legal position, it is obvious that the defence fails to bring its case within Exception 1 to section 300 of the Penal Code which would justify a conviction only under section 304 thereof. A pertinent point that we wish to make at this juncture is that all the 4 elements under Exception 1 to section 300 had not been proved by the defence. The clear and unequivocal law stipulated in Exception 1, requires the grave and sudden provocation to have proceeded from the deceased and by reason of such grave and sudden provocation the appellant must have been deprived of the power of self-control thereby causing the death of the deceased who gave the provocation. As earlier found, there was no evidence to that effect. Additionally, in order to avail himself of the protection in Exception1, the appellant could also show that he by mistake or accident, had caused the death of the deceased by virtue of the grave and sudden provocation allegedly given by Akhbar and Malik. However, that was not the position adopted by the defence. Thus, if Malik and Akhbar were the ones who gave the provocation the night before the murder as the appellant had admitted in his evidence, the attack on the deceased by the appellant was totally unwarranted and surely would not bring this case to be within Exception 1 to section 300 of the Penal Code. In our judgment, there was a long lapse of time between the occurrence of the alleged provocation and the killing sufficient for the appellant’s blood to cool and for reason to resume its seat. It was, so to speak, no longer recent and grave that the appellant was for the moment no master of his own understanding [R v Hayward, supra]. The appellant’s act was undoubtedly murder.

[36] In the end, for the reasons that we have given, there is no basis for this Court to disturb the factual findings of the learned judge. His Lordship had judicially scrutinized the evidence very carefully in a way that leaves no margin of doubt in our minds that the conviction of the appellant is safe. The result is therefore that the prosecution case against the appellant based on the charge against him had been proven beyond reasonable doubt. We dismiss the appeal and affirm the order of conviction and sentence by the learned trial judge on the charge under section 302 of the Penal Code.

Signed

IDRUS BIN HARUN
Judge
Court of Appeal, Malaysia
Putrajaya

Dated: 8th June 2018

COUNSEL

For the Appellant: Abdul Gani Bin Zelika, Messrs. Johari, Zelika & Amin, TB 286, Tingkat 2, Blok 30, Jalan Haji Karim, Kompleks Fajar, 91000 Tawau, Sabah

For the Respondent: Muhammad Azmi bin Mashud, Deputy Public Prosecutor, Jabatan Peguam Negara, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya

Legislation referred to:

Criminal Procedure Code, Section 182A(1)

Evidence Act 1950, Sections 114(g), 133A

Penal Code, Sections 300, 302, 304 & Exception 1 of section 300

Judgments referred to:

Che Omar Mohd Akhir v PP [2007] 3 CLJ 281

Ekene Boniface Ochiada v Public Prosecutor [2018] 5 CLJ 17

Khairati Ram A.I.R 1953 Punj. 241

Madhavan v State of Kerala, 1966 Ker.L.T. 112

Munusamy v Public Prosecutor [1987] 1 MLJ 492

PP Iwn Losali & Satu Lagi Dan Satu Rayuan Lain [2010] 8 CLJ 560

R v Hayward (1833) 6 C. & P. 157

Sainal Abidin bin Mading v Public Prosecutor [1999] 4 MLJ 497

Samsudin v Public Prosecutor [1962] 1 MLJ 405 (CA)

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