THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 231 ENGLISH

Basri Takadir v Public Prosecutor
Suit Number: Criminal Appeal No. Q-05(M)-69-02/2017 

Criminal law – Murder – Conviction – Sentence – Appeal – Whether appellate intervention warranted

Litigation & court procedure – Admissibility of witness statements – Whether the witness statements properly identified and signed – Whether the contents of the witness statements understood and confirmed by the respective witnesses – Whether the failure to read the witness statements aloud in open court (although they were translated and explained to the respective witnesses in open court) caused any injustice to the defence – Whether the witness statements had fulfilled the pre-requisites of section 402B of the Criminal Procedure Code – Whether the witness statements admissible

Criminal procedure – Defence of provocation, sudden fight and self-defence – Test – Probative force of the defence when disclosed during the time of arrest and/or during the trial as opposed to during the defence stage

JUDGMENT

[1] The accused was charged for murder. The charge read as follows:

“Bahawa kamu pada 28 Mac 2015, jam lebih kurang 09.00 pagi, di rumah tidak bernombor di Foo Shan Sawmill, dalam Daerah Bintulu, dalam Negeri Sarawak, telah membunuh ERWING (L) (PASSPORT: A0092791) dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan.”

[2] The facts of the case in the instant appeal play a lesser role as the accused was relying on defence of provocation, sudden fight and self defence. Learned counsel for the appellant had also taken up a technical issue in relation to the admissibility of 22 witness statements for purpose of examination-in-chief, in the High Court as well as before us.

[3] The petition of appeal of the accused reads as follows:

“1. The learned High Court Judge erred in law and/or in fact when finding that the prosecution had established a prima facie case against the Accused.

2. The learned High Court Judge erred in law and/or in fact when failing to place reliance on the Accused submission at the close of the prosecution's case that most of the evidence tendered by the prosecution was inadmissible and the evidence that is admissible is insufficient to link the Accused in any material manner to the elements of the offence and charge.

3. The learned High Court Judge erred in law and/or in fact when failing to place reliance on the fact that out of the 22 prosecution witness called to testify, 16 affirmed their oaths in Bahasa Malaysia, 4 affirmed their oaths in Mandarin and 2 affirmed their oaths in English whereas all the witness statements were in English which required interpretation from English to Bahasa Malaysia before they were tendered in court for the 16 witnesses who affirmed their oaths in Bahasa Malaysia and the 4 who affirmed their oaths in Mandarin.

4. The learned High Court Judge erred in law and/or in fact when finding that the witness statements adduced in court are admissible as the witness statements had been certified by each and every witness that they are their witness statements without considering the following facts:

a. That in evidence PW1, PW2, PW3, PW5, PW8, PW9, PW11, PW12, PW13, PW14, PW15, PW16, PW19, PW20, PW21 who affirmed their oaths in Bahasa Malaysia and PW4, PW6, PW7 and PW18 who affirmed their oaths in Mandarin, when giving their respective oral testimony in court said that they had prepared their own witness statements, which if such statement was true then their respective witness statements would have been in Bahasa Malaysia or Mandarin and not in English.

b. That in contradiction with PW1, PW2, PW3, PW5, PW8, PW9, PW11, PW12, PW13, PW14, PW15, PW16, PW19, PW20, PW21 who affirmed their oaths in Bahasa Malaysia and PW4, PW6, PW7 and PW18 who affirmed their oaths in Mandarin and who said in their oral testimony that they had prepared their own witness statements, the prosecution had submitted that the witness statements were prepared in the presence of the witnesses who sat down with them and whatever was uttered by them during the recording were read, translated and explained to them to ascertain the truth of the contents of the respective witness statements, although the same was not adduced in evidence.

c. That the relevant witness statements which required interpretation were never interpreted by the court interpreter from English into Bahasa Malaysia or from English in to Mandarin for the relevant affected witnesses.

d. That the requirement to have the witness statements in English translated to either Bahasa Malaysia or Mandarin to the respective witness before the commencement of the Examination-In-Chief is demonstrated the procedure used to tender the witness statement of PW5.

5. The learned High Court Judge erred in law and/or in fact when failing to find that with the exception of the evidence of PW5, PW10 and PW17 the evidence of all the other remaining witnesses and the exhibits marked and tendered through them is inadmissible in evidence and so is their subsequent cross-examination and reexamination because such evidence all originates from the same defective source, which was the failure to interpret their respective witness statements from English to Bahasa Malaysia or Mandarin where applicable.

6. The learned High Court Judge erred in law and/or in fact failing to find that since PW1, PW2, PW3, PW5, PW8, PW9, PW11, PW12, PW13, PW14, PW15, PW16, PW19, PW20, PW21 who affirmed their oaths in Bahasa Malaysia and PW4, PW6, PW7 and PW18 who affirmed their oaths in Mandarin gave oral evidence in Bahasa Malaysia and in Mandarin respectively, it must be inferred that the respective witnesses did not have sufficient understanding of the English Language to have produced their respective witness statements or to have the same produced and read back to them in English.

7. The learned High Court Judge erred in law and/or in fact failing to find that since PW1, PW2, PW3, PW8, PW9, PW11, PW12, PW13, PW14, PW15, PW16, PW19, PW20, PW21 who affirmed their oaths in Bahasa Malaysia and PW4, PW6, PW7 and PW18 who affirmed their oaths in Mandarin gave oral evidence in Bahasa Malaysia and in Mandarin respectively, they would not be in a position to confirm that they understood the contents of their respective witness statements and that the same are true to the best of their knowledge and belief because their respective witness statements were never interpreted to them in open court and as such they would not be in a position to agree or disagree to such questions and had only blindly agreed to the same.

8. The learned High Court Judge erred in law and/or in fact when failing to find that the circumstances which led to the witness statements being admitted in to evidence left serious doubts about whether PW1, PW2, PW3, PW8, PW9, PW11, PW12, PW13, PW14, PW15 and PW16, PW19, PW20, PW21 understood the contents of their respective witness statements.

9. The learned High Court Judge erred in law and/or in fact when finding that the court interpreter had translated and explained the respective witness statements to the respective witnesses in open court as the audio visual recordings would show that the same was not done and so will the notes of proceedings.

10. The learned High Court Judge erred in law and/or in fact when relying on the fact that the witness statements of the witnesses in question had the following declaration in it:

"THE ABOVE STATEMENT WAS READ BACK TOME AND AFFIRMED TO BE TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF AND SIGNED BY ME"

When such declaration was itself in English and not interpreted to the relevant witnesses in open court.

11. The learned High Court Judge erred in law and/or in fact when failing to find that the circumstances of the relevant affected witness statements were such that the relevant witness statements had to be read out loud to the respective witness for removal of any doubt that they understood the contents of their respective witness statements and the circumstances were such that even if the provisions of Section 402B of the CPC were suppose only to be directory and not mandatory in nature, the non-compliance in the present case has prejudiced the Accused and which non-compliance is incurable.

12. The learned High Court Judge erred in law and/or in fact when failing to find that even if the defence did not object to the admissibility of the witness statements at trial, it does not mean that the witness statements are automatically admissible by reason of the defence failure to object as the Trial Judge is under an automatic duty to stop the same from being adduced.

13. The learned High Court Judge erred in law and/or in fact when failing to find that even if the respective witness statements had been read back to the relevant witnesses outside court, the questions that remained unanswered are at what time and in what language were the witness statements read back to the relevant witnesses.

14. The learned High Court Judge erred in law and/or in fact when failing to find that the circumstances showed that the Accused had established that at the material time he had been exercising his right of private defence.

15. The learned High Court Judge erred in law and/or in fact when failing to find that the circumstances showed that the Accused had been gravely and suddenly provoked by the Deceased which grave and sudden provocation led to the death of the Deceased.

16. The learned High Court Judge erred in law and/or in fact when failing to find that the circumstances showed that the Accused had established the defence of sudden fight.

17. The learned High Court Judge erred in law and/or in fact when finding that the act of the Accused in stabbing the Deceased several times is out of proportion to the provocation given by the Deceased because when a reasonable person is gravely and suddenly provoked that person like the Accused would lose self-control and would thereby not be in a position to measure his blows or the number of times injuries are inflicted.

18. The learned High Court Judge erred in law and/or in fact when failing to find that the grave and sudden provocation by the Deceased caused the Accused to be in a rage and as such the Accused would not be in a position to think logically like a calm and rational person.

19. The learned High Court Judge erred in law and/or in fact when failing to find that the fact that they were no defensive wounds on the Deceased does not mean that the Deceased was not in a position to defend himself against the attack of the Accused but rather supported the fact that the Deceased sustained his injuries when he was attacking the Accused.

20. The learned High Court Judge erred in law and/or in fact when finding that the Accused never testified that the Deceased attacked him.

21. The learned High Court Judge erred in law and/or in fact when finding that the Deceased act of pointing the knife at the Accused was a threat or act of warning and not an act of grave and sudden provocation.

22. The learned High Court Judge erred in law and/or in fact when failing to find that through fault of the Accused he was not brought for a medical examination to show the extent of his injuries that would have established at least one of the defences raised at trial.

23. The learned High Court Judge erred in law and/or in fact when having found that the Accused had sustained a scratch to his right back arm, failed to find that the said injury corroborated the Accused version of events in part.

24. The learned High Court Judge erred in law and/or in fact when relying on the testimony of PW21 with regards to whether there were any injuries on Accused body as PW21 was not qualified to give an expert opinion about whether the Accused has sustained an injuries or not.

25. The learned High Court Judge erred in law and/or in fact when failing to find that the Accused had raised reasonable doubt on the charge of murder preferred against him.

26. The learned High Court Judge erred in law and/or in fact when failing to find that the circumstances show that the Accused had not brought a knife along with him to the scene of the incident which supported the Accused version that the Accused had seized the knife from the Accused when the Deceased had attacked him.

And the Appellant above named therefore prays that the conviction be quashed and the sentence imposed on him be set aside or that such order be made thereon as justice may require.”

[4] The learned trial judge had dealt with the issue of witness statement in great detail. To save court’s time, we have set it out verbatim and it reads as follows:

“3. The Defence further contended that the Prosecution called a total of 22 witnesses, all of whom used witness statements for their examinations-in-chief and that the following witnesses affirmed their oaths in Bahasa Malaysia namely:-

(a) PW1 L/Kpl Mohd Rohaizad.

(b) PW2 Phellas Anak Mudin.

(c) PW3 Kpl Engkamat.

(d) PW5 Saharuddin Arsad.

(e) PW8 Sgt Roland.

(f) PW9 Kpl Zulkifli.

(g) PW11 Kpl Narawi.

(h) PW12 Idris.

(i) PW13 Insp. Noraimah.

(j) PW14 Nurmawati.

(k) PW15 Kamria.

(l) PW16 Insp. Peterson.

(m) PW19 D/Kpl/Merco.

(n) PW20 Insp. Leonard.

(o) PW21 Asp Md Nurazam.

(p) PW22 Dr. Nafisah.

4. Before they began giving their examinations-in-chief for each of them it was stated as follows:-"AFFIRMS AND STATES IN BAHASA MALAYSIA":

5. The following witnesses affirmed their oaths in Mandarin namely:-

(a) PW4 Wong Chee Kiong.

(b) PW6 Ting King Ping.

(c) PW7 Soh Chin Lay.

(d) PW18 Lim Seng Kwe.

6. Only PW10 (Phoon-the Chemist) and PW17 (Dr. Norliza-the Pathologist) affirmed their oaths in English.

7. In the light of the above, the Defence contended that if the oath9s were affirmed in Bahasa Malaysia then either the witness statements must be in Bahasa Malaysia or the witness statements must be interpreted to the respective witnesses from English to Bahasa Malaysia before they were tendered in Court. The same principle applies to those witnesses who gave their oaths in Mandarin.

8. The Defence contended that a perusal of the Notes of Proceedings showed that the witness statements that are all in the English Language were not interpreted to the respective witnesses with the exception of PW18 (Lim Seng Kwe) who affirmed the oath in Mandarin and only stated in cross-examination at page 111, line 3561 the NOP that his witness statement was interpreted to him in Mandarin, but he did not state whether it was interpreted to him in court just before the tendering of the witness statement and after the oath was affirmed or that the witness statement was interpreted to him outside court well before he gave evidence.

9. The Defence also contended that the fact that the witness statements for each witness that did not affirm their oaths in English and/or give evidence in English must have the witness statements in English interpreted to them by the court interpreter before the preliminary questions regarding the witness statements are asked and the tendering of the witness statement as an exhibit, is demonstrated by the fact and the manner in which the witness statement of PW5 was tendered in court as can be seen at Page 20, lines 504 to 508 of the NOP where the following preliminary statements were made:

"DPP: Since it is English, can we translate the witness statement into Bahasa Malaysia, (Court Interpreter, Puan Lily translates the witness statement to the witness into Bahasa Malaysia.)"

The above is the manner in which all the witness statements should have been interpreted and tendered.

10. The Defence thus contended that with the exception of PW5, PW10 and PW17 the rest of the witnesses' oral evidence and exhibits marked through them is inadmissible and so is their subsequent cross-examination and re-examination because they all originated from a defective source which was the failure to interpret their respective witness statements from English to Bahasa Malaysia or Mandarin, whichever is applicable for non-compliance with section 402B of the Criminal Procedure Code (CPC). (See Abuchi Ngwoke v PP [2016] 2 MLJ 623).

11. The Defence also contended that even though they did not object to the tendering of the witness statements, however inadmissible evidence does not become admissible by the failure to object, (see Alcontara A/l Ambross Anthony v PP [1996] 1 MLJ 209).

THE PROSECUTION’S CONTENTIONS ON THE ADMISSIBILITY OF THEIR 22 WITNESS STATEMENTS

12. The Prosecution contended that the learned defence counsel in this case had agreed to the tendering of the witness statements and the defence counsel also was the person who suggested that all the witnesses to give evidence through witness statement even though there were mutual agreement between both parties that the witnesses statements were only to be tendered through formal witnesses i.e. the chemist, the photographer, the Investigation Officer and other police personnel.

13. The Prosecution also highlighted that all the prosecution witnesses had been crossed examined and re-examined whereby 90% of the questions asked by the defence counsel were based on the witness statements themselves and yet all the witnesses still managed to answer the questions without having any problem understanding the questions asked. This showed that all the witnesses understood the contents of their respective witness statements otherwise they would not know how to answer questions posed to them during cross examination and re-examination.

14. Further the Prosecution stated that the witness statements were prepared in the presence of the witnesses who sat down with them and whatever uttered by them during the recording were read, translated and explained to them to ascertain the truth of the contents of their respective witness statements.

COURT’S FINDING ON THE ADMISSIBILITY OF THE WITNESS STATEMENTS

15. This Court finds that the witness statements adduced in court are admissible as the witness statements had been certified by each and every of the witnesses that they are their witness statement. Further they confirmed that they understood the contents of their respective witness statements and confirmed that the contents stated in their respective witness statement are the truth to the best of their knowledge and belief. All the witnesses identified their respective witness statements in open court and signed their respective witness statements after they confirmed the authenticity of their respective witness statements. All the witness statements had tendered and marked without any objections by the Defence. Apart from that, all the respective witness statements bore the declaration at the bottom of last page of each witness statements containing the following words "THE ABOVE STATEMENT WAS READ BACK TO ME AND AFFIRMED TO BE TRUE BASED ON THE BEST OF MY KNOWLEDGE AND BELIEF AND SIGNED BY ME".

16. It is noted that the only thing that was not done was that the witness statements were not read aloud in open court. However, in this case, the Court finds that the court interpreter had translated and explained the respective witness statements to the witnesses in open court. In the circumstance of this case and absence of any objection from the Defence’s counsel, this Court finds that there is no necessity to read aloud the witness statement in open court because it would defeat the purpose of the amendment to the Criminal Procedure Code as regards to Section 402B itself because it is the objective of the Parliament in introducing this section that is to speed up the trial held in court.

17. As regards the case of Abuchi Ngwoke v PP [2016] 2 MLJ 623 which was relied upon by the Defence, this Court finds that the above case can be distinguished as in that case, the Court of Appeal held inter alia as follows:

"... there was no indication that SP1 had read out the witness statement. ... It was further found that the witness statement of SP1 did not bear his signature and neither did the witness statement contain a declaration required under para (2)(b) of S. 402B of the CPC. Hence, the preconditions set out in para (2) for the admissibility of the evidence had not been complied with, rendering the witness statement of SP1 inadmissible (emphasis added)"

18. The above cited case can be distinguished with the present case as in that case, the witness statement did not bear the signature of the maker and nor it contained a declaration as required by para (2)(b) of S. 402B of the Criminal Procedure Code. In the present case, all the respective witness statements were duly signed and contained the requisite declarations as required under S. 402B of the Criminal Procedure Code.

19. This Court finds that since all the relevant witnesses understood the contents of their respective witness statements which were duly signed by them, which contained the requisite declarations and which admission was not objected to, by the Defence and since there is no injustice caused to the Defence, this Court finds that the witness statements had fulfilled the pre­-requisites of section 402B of the Criminal Procedure Code and are thus admissible.”

[5] In relation to the defence of provocation, sudden fight and self defence, the learned trial judge had set out the defence version and it read as follows:

“36. The Accused testified that he had been working in Bintulu for about 10 years before the incident and had known the Deceased since 2007. They had been good friends all the while and prior to the incident, the Deceased had been unemployed for about 3 months and staying in PW5's quarters as the Deceased was unemployed.

37. The Accused further testified that the night before the incident the Accused and the Deceased were together and the Deceased had given the Accused some Syabu to consume at Segan Factory. The Accused did not go to sleep and went back to his own quarters early in the morning. The Accused then decided to go to the Canteen at Fo Shan Sawmill and get some cigarettes and in the process went to the Deceased's quarters. The Accused did not bring any objects or weapons with him. As the Accused arrived at the Deceased's quarters, he saw a lady leaving the quarters. The Deceased then demanded money from the Accused for the Syabu that was given to him, the night before. The Accused told the Deceased that he did not have money as he had just come back from Indonesia. The Deceased then pointed a knife at the Accused and hit the back of the Accused's right shoulder with it. A struggle ensued during which the Accused got hold of the knife from the Deceased and stabbed him. The Accused had lost his sense of self-control at the time of the incident and the Accused felt that if he did not react then the Deceased would have killed him.

38. The Defence contended that the question of whether the Accused brought along the knife with him when he went to see the Accused or did the Accused seize it from the Deceased will have a great impact in deciding whether the Accused is a credible witness or not. The Defence further contended that the Accused is a credible witness and his version of events ought to be accepted as facts.

THE DEFENCES OF THE ACCUSED PERSON

39. From a perusal of the evidence adduced by the defence, the defence is relying on the defences of provocation, sudden fight and self-defence. All of these will now be considered in turn.

40. The Accused testified that he had to defend himself from being stabbed by the Deceased and that he was in a condition of unstable mind and lost his power of self-control. The Deceased first provoked him while holding the knife (Exhibit P18A & P19A) claiming that the Accused owed him the sum of RM1200 for syabu and asked the Accused to pay the debt.

THE DEFENCE OF PROVOCATION AND SUDDEN FIGHT

41. Provocation operates as an exception to the offence of murder under section 300 of the Penal Code.

Exception 1 - 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 other person by mistake or accident.

42. The above exception is subject to the following provisos:

(a) that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person;

(b) that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant;

(c) that the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder, is a question of fact.

43. Before proceeding to consider the elements of the exception of provocation, it is also pertinent to consider the burden on an accused where he relies on an exception in the Penal Code. The relevant section is section 105 of the Evidence Act 1950 and it reads as follows:

"105. Burden of proving that case of accused comes within exceptions When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances."

44. The classic common law definition of provocation can be found in the case of R v. Duffy [1949] 1 All ER 932 where Devlin J said:

"Provocation is some act, or series of acts done (or words spoken)... which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of himself."

45. The provocation must be grave and sudden. This is a question of fact in each individual case. Dr Sri Hari Singh Gour's Penal; Law of India, Vol 3 (Law Publishers (India) Pvt. Ltd, 1th Ed Revised, 2011), declares "sudden" as follows (at p 2498):

"What it is said that the provocation must be "sudden" it is implied that it should have all immediately preceded the homicide in point of time. A person may repeated or continuous provocation arouse another to state of mind when the provocation immediately preceding the act is only the last straw."

46. In Mahmood v. State AIR [1961] ALL 538, Oak J had noted (at 538-539):

"Whether the provocation was sudden or not does not present much difficulty. The word 'sudden' involves two elements. Firstly, the provocation must be unexpected. If an accused plans in advance to receive a provocation in order to justify the subsequent homicide, the provocation cannot be said to be sudden. Secondly, the interval between the provocation and the homicide should be brief. If a man giving the provocation is killed within a minute after the provocation, it is a case of sudden provocation. If the man is killed six hours after the provocation, it is not a case of sudden provocation."

47. In the Court of Appeal case of Rikky Purba v. Public Prosecutor [2014] 3 CLJ 607; [2014] MLJU 72, the court reviewed the authorities on provocation and held inter alia as follows:

"It is an established principle of criminal jurisprudence that the defence is not required to prove its case with the same rigour as the prosecution and the defence is only required to prove its case on the balance of probabilities to entitle him to rely on any general exceptions of the PC (see section 105 of the Evidence Act)."

PP v Subir Gole [2015] 3 CLJ 505, the Court held as follows;

"[28] In order to appreciate the contention of learned DPP, it would be useful to have a look at the law relating to provocation. Exception 1 to s. 300 of the PC operates as a mitigatory or partial defence to murder aimed at the reduction of that offence to simple culpable homicide not amounting to murder. The doctrine of provocation is a concession to human frailty or infirmity, a recognition that a lower standard of criminal responsibility should apply to one who kills when he is 'for the moment not master of his mind'. This approach to defence hinges on the notion of loss of self-control. Its rationale is that provocative conduct, when it is sufficiently serious, is capable of inflaming anger to such degree as to be likely to lead the provoked person to lose his self-control and retaliate in violence. When the provoked person loses self-control, he is unable to weigh up the consequences for his action according to reason. (See Jeremy Horder, Provocation and Responsibility (Oxford: Clarendon Press, 1992)).

[29] 'Provocation' has not been defined in the PC. Generally speaking, there are three main types of provocations, namely:

(i) Ordinary provocation (reasonable);

(ii) Cumulative provocation; and

(iii) Self-induced provocation.

[30] Ordinary provocation refers to that provocation which causes a man to lose his self-control; and although a reasonable man who has lost control over himself would not kill, yet his homicidal reaction to the provocation is at least understandable. This form of provocation is based on the standard of the reasonable or ordinary man.

[31] Cumulative provocation is a series of acts or words over a period of time which culminates in the sudden and temporary loss of self-control. This provocation is not confined to the last acts before killing the accused; there may have been previous acts or words which when added, caused the accused to lose his self-control although the last act may not be sufficient to cause provocation.

[32] Self-induced provocation is a form of provocation in which the accused himself started the trouble. This type of provocation is rarely successful as a defence owing to the fact that the accused actually 'provoked' himself and may be rendered responsible for his own anger because he started the trouble himself.

[33] What would amount to "grave and sudden provocation" will depend on the facts of each case. Thus, no straitjacket formula that can be evolved to categories what acts may amount to provocation much less grave and sudden provocation. In the case of Che Omar Mohd Akhir v. PP (supra), Nik Hashim FCJ said:

[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; [1985] CLJ (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 idiosyncrasies 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. (see Ratanlal & Dhirajlal, p 1192; Vijayan v. Public Prosecutor [1975] 1 LNS 189; [1975] 2 MLJ 8)."

49. In the Federal Court case of Ikau Anak Mail v Public Prosecutor [1973] 1 LNS 51, his Lordship Azmi LP (as he then was) ruled as follows:

"To succeed in a defence of grave and sudden provocation, it is necessary in law for the defence to satisfy the Court that not only by the acts of the deceased that the accused had been deprived of the power of self-control, but such acts of provocation would also have deprived a reasonable man of the power of self-control."

50. As alluded to earlier, the test of whether provocation exists is to be judged by the standard of the reasonable man. See Lorensus Tukan v. Public Prosecutor [1988] 1 CLJ Rep 162; [1988] 1 MLJ 251 which held as follows:

"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)."

51. Was the provocation by the Deceased, grave and sudden? This, as the established authorities decided, is a question of fact. In the present case, the evidence relied upon by the Defence in raising provocation are as follows. The Accused testified that the Deceased then pointed a knife at the Accused and hit the back of the Accused’s right shoulder with it. A struggle ensued between them during which the Accused got hold of the knife from the Deceased and stabbed him. The Accused had lost his sense of self-control at the time of the incident and the Accused felt that if he did not react then the Deceased would have killed him.

52. From a distillation of the foregoing narrative that formed part of the Accused’s testimony, this Court has to determine whether the Deceased pointing a knife at the Accused and hit the back of the Accused’s right shoulder with it and the struggle which ensued between them during which the Accused got hold of the knife from the Deceased and stabbed him, was sufficient to cause the Accused to be deprived of his self-control?

53. If it was, the next stage of inquiry would be whether the injury inflicted was proportionate to the provocation. It is trite that the test of whether provocation exists is to be judged by the standard of the reasonable man. In the present case, in the assessment of the reasonableness of the Accused's action, it has to be considered as of necessity whether a reasonable man would be so provoked as to act as the Accused did. Therefore it must follow that if a reasonable man would not have resorted to the degree of retaliation as the Accused did, then it must also follow that the proportionality of the reaction to the provocation would be a relevant factor to consider. If there is any doubt that the consideration of proportionality is relevant to the issue of provocation, this Court is guided by the case of Bangkong ak Puan (I) v. Public Prosecutor [2012] 1 LNS 950; [2013] 1 MLJ 293 where it was held;

"The appellant alleged that the deceased stabbed him first and it was this act of grave and sudden provocation that purportedly caused him to lose his self-control and retaliate. We-find that even if this allegation was true, the brutal manner in which the appellant retaliated was not proportionate to the provocation."

54. As stated earlier, the test of whether provocation exists is to be judged by the standard of the reasonable man. See Lorensus Tukan v. Public Prosecutor [1988] 1 CLJ Rep 162-[1988] 1 MLJ 251 which held as follows:

"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)."

55. Would a reasonable person react as the Accused did under the circumstances of the present case? Cumulatively taken, the acts relied upon to show evidence of provocation on the part of the Accused were that the Deceased had pointed a knife at him and attacked him unsuccessfully the Deceased then pointed a knife at the Accused and hit the back of the Accused's right shoulder with it. A struggle ensued between them during which the Accused got hold of the knife from the Deceased and stabbed him. The Accused had lost his sense of self-control at the time of the incident and the Accused felt that if he did not react then the Deceased would have killed him.”

[6] We have read the appeal records and the submission of the learned counsel for the appellant. We took the view that the appeal has no merit. Our reasons inter alia are as follows:

(a) The issue raised on witness statements does not carry much weight as the witnesses were available in court and the accused has not been deprived of a fair trial to cross-examine the witness, etc. Very importantly, the witness statement procedure is one related to consent. Once there is a consent to a statutory procedure and the procedure has been complied with as per the letter of the law, the court is obliged not to intervene in such matters. The new section 402B has brought a change to criminal procedure and practice. In essence, it allows a witness statement to be admissible without the need for the maker to be cross-examined. The new section allows a written statement by any person to be admissible in evidence to the extent and effect of oral evidence, provided the prosecution and the accused consent. It makes no differentiation to an accused who is represented or unrepresented. The section provides various safe guards before the document can be made admissible. The Court is obliged to ensure that the strict requirement as set out in section 402B is complied with before the document is made admissible. They are, inter alia, as follows:

(a) must be signed by the person who made it with a declaration that it is true to the best of his knowledge and belief;

(b) statement is served on the parties to the proceeding, not later than 14 days before commencement of trial, unless otherwise agreed and no requirement to serve on any of the parties if so agreed;

(c) if the statement is made by a person who cannot read, the statement must be read out to him and explained before he signs and must be accompanied by a statutory declaration under the Statutory Declarations Act 1960 by the person who so read and explained;

(d) if the statement refers to any other document or object, it must also be served or allowed to be inspected or shown as a photograph as the case may be unless it is not expedient to do so;

(e) the maker of the statement may also be called by the party who tenders it to give additional evidence and if so, the maker can be cross examined and also reexamined;

(f) the statement to be admitted must be read aloud unless the court otherwise directs;

(g) any document or exhibit referred to in the statement shall be treated as an exhibit;

(h) the document may be served to the accused or advocate in person or in the case of a corporation, to the person or address stated in the section.

The said amendment will permit the prosecution as well as the defence to tender written statements inclusive of documents and exhibits related to it in evidence without the maker being called and tendered through any relevant witness of the parties during examination-in-chief. It will expedite criminal trial process. [See Janab’s Key To Criminal Procedure, 3rd ed., pgs. 129-131].

[7] In our view, there was no prejudice or material prejudice that the accused has suffered in a consented witness statements. The protection in Article 5(1) of the Federal Constitution which is supreme in nature is not afforded to the prosecution but to the accused. However, it is now well established that public interest must be weighed and the accused should not be allowed to escape conviction and sentence, purely on technical breach of purported law as opposed to strict statutory safeguards. It all depends on the facts and the provision of law the court has to deal with. In Chin Kek Shen v Public Prosecutor [2013] 5 MLJ 827, Hamid Sultan bin Abu Backer JCA on the facts of the case had this to say:

"The protection in Article 5(1) which is supreme in nature is not afforded to the Prosecution or Plaintiffs or Defendants in civil cases. The difference is like apple and orange and one should not read section 114(g) in a literal sense when it relates to the accused without considering not only the Federal Constitution but the criminal jurisprudence in common law jurisdiction which bend backwards to lean in favour of the accused as far as the justice of the case will allow. [See Woolmington v DPP (1935) AC 462]. The only caveat is that it is for the court to balance public interest as well as to ensure justice is not compromised to the detriment of the victim. In Shahabuddin and another v State of Assam Cr. A. No. 629 of 2010, the Supreme Court of India had this to say:

"Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned President Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subserved. For truly attaining this object of a ‘fair trial’, the Court should leave no stone unturned to do justice and protect the interests of the society as well"."

[8] The defence of provocation, sudden fight and self defence will have greater probative force if it has been disclosed at the earliest stage from the time of arrest and/or at least during the course of trial. It will have less probative force if it is raised for the first time during the defence stage.

[9] In the instant case, the said defence was raised during the defence stage and in consequence has less probative force. However, the learned judge had gone through all the defence and it is the judges’ finding that the defence on the facts had no merit.

[10] It is well settled that the appellate court will not readily interfere in the finding of the trial judge where the court has taken into consideration the defence story and on the totality of the facts and evidence come to a decision not to acquit or convict. In Thenegaran a/l Murugan & Anor v Public Prosecutor [2013] 5 CLJ 850, Hamid Sultan bin Abu Backer JCA had this to say:

“It is well settled that it is in the hands of the trier of facts to assess the quality of evidence and to determine whether the evidence on record justifies a conviction. In so doing if the court orders an acquittal or conviction it cannot be set-aside by the appellate court unless it records a finding that the view taken by the trial court was not a possible reasonable view of the evidence on record. [See Pramod Mandal v State of Bihar (SC) [2004] 4 LRI 24].”

[11] For reasons stated above, the appeal is dismissed. The conviction and sentence are affirmed.

We hereby ordered so.

Dated: 31 July 2018

sgd

DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER
Judge
Court of Appeal
Malaysia

COUNSEL

For the Appellant: Mr. Ranbir Singh Sanga, Messrs. Ranbir S. Sanga & Co, Advocates and Solicitors, 2nd Floor, Lot 1372, Centre Point Commercial Centre, Phase II, Jalan Kubu, 98000 Miri, Sarawak

For the Respondent: Encik Mohd Taufik bin Mohd @ Mohd Yusoff, Deputy Public Prosecutor, Jabatan Peguam Negara, Tingkat 3, Blok B, Wisma Persekutuan Fasa II, Jalan Cahaya Lopeng, 98000 Miri, Sarawak

Legislation referred to:

Criminal Procedure Code, Section 402B

Federal Constitution, Article 5(1)

Statutory Declarations Act 1960

Judgments referred to:

Chin Kek Shen v Public Prosecutor [2013] 5 MLJ 827

Thenegaran a/l Murugan & Anor v Public Prosecutor [2013] 5 CLJ 850

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