THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 40 ENGLISH

Hamdan Bin Pulmahan v Public Prosecutor
Suit Number: Criminal Appeal No. S-05(M)-385-10/2016 

Criminal Law – Murder – Section 302 of the Penal Code

Criminal Law – Murder – Whether there was grave and sudden provocation – Whether the appellant was acting in self-defence

JUDGMENT

Introduction

[1] This is an appeal against the decision of the High Court in which the learned Judge convicted and sentenced the Appellant/accused for the offence of murder under S.302 of the Penal Code.

[2] The charge against the Appellant reads as follows:

“Bahawa kamu pada 6/10/2013 di antara jam 1.15 petang hingga 1.45 petang, bertempat di bawah kolong, rumah tidak bernombor, Pulau Berhala, Bandar Sandakan, di dalam Daerah Sandakan, di dalam Negeri Sabah, didapati dengan niat telah membunuh Guanding bin Masirin (IP 12091 9980-IMM13). Oleh itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah S. 302 Kanun Keseksaan”

[3] We heard the appeal and after due consideration to submissions of the respective counsel and the evidence adduced in the trial Court, we dismissed the appeal and affirmed the decision of the learned High Court Judge. We now give our reasons for that decision.

Background facts:

[4] The detailed facts have been set out in the learned Judge’s grounds and we don’t intend to repeat them here. For the purpose of this appeal we will only set out in brief the relevant facts required for our grounds.

[5] The deceased was the father in law of the Appellant and they live on the island of Berhala, a nearby island of Sandakan, Sabah. The daughter of the Appellant had of late been staying with the deceased and his family.

[6] On 6.3.2013 at about 1.30 pm, there was a quarrel between the deceased and the Appellant. That quarrel emanated from an attempt by the Appellant to take his daughter back to his home, to which the daughter refused to do so. Upon seeing the Appellant’s daughter’s refusal, the deceased asked the Appellant not to force her to do so. That quarrel unfortunately turned fatal with the Appellant stabbing the deceased on the chest and other parts of his body which led to the death of deceased despite the efforts of others in the stationed army camp medical center.

Prosecution case:

[7] The prosecution at the High Court had correctly submitted that for the charge of murder to be sustained, the following elements had to be proved:

(a) Guanding bin Masirin is the deceased.

(b) Guanding bin Masirin died due to injuries found on her.

(c) The injuries found on Guanding bin Masirin’s body were inflicted by the Appellant in circumstances set out in Section 300(a)-(d) of the Penal Code.

[8] In respect of the first element, it was an undisputed fact that the deceased was in fact one Guanding bin Masirin.

[9] As for the second element, the prosecution called one Dr Jessie Hiu, PW6, the pathologist who conducted the post mortem. Her conclusion of the post mortem was that the deceased had succumbed to his death due to a stab wound to the chest. The relevant evidence was these:

The evidence of PW6 on the explanation of the report can be referred at page 75 to 76 Record of Appeal Volume 2 as follows;

Q: Can you explain about your finding in your report?

A: The conjunctivae of the deceased eye and his oral mucosa were pale, there were 6 stab wounds. One of the stab wounds was on the front of the chest at the midline which injured the breast bone, the covering of the heart, the left side of the heart, diaphragm, liver, lining of the abdomen cavity and the pancreas. The injury described in my post mortem report page 2 under heading of Injuries no. 1. There was another stab wound on the left side of the abdomen which penetrated the abdomen cavity but did not injure any vital organs. A stab wound was seen near the left armpit and 2 stabs wounds was seen on the left upper limb. These stab wounds only injured soft tissues. The other injuries were minor scratch abrasions. The stab wound on the chest caused bleeding to the right chest cavity and the right lung was collapsed. All the internal organs were pale.

Further at page 78 of the same Record of Appeal Volume 2, PW6 made a finding of the cause of death as follows;

Q: Are you able to determine the cause of death of the deceased?

A: The cause of death is stated in my post mortem report under heading of cause of death hypovolaemic shock due to stab wound in the chest in this case injury no. 2.

Q: Can you explain in layman terms what is hypovolaemic shock?

A: It is a condition caused of excessive loss of blood leading to drop to the blood pressure and reduced blood supply to the vital organs causing death.

[10] As for the third element, the prosecution relied on the witnesses present at the place and time of the fatal incident. These witnesses were PW10, the deceased’s wife, PW5, the deceased’s other son in law and PW3, the other daughter of the deceased. The sum total of the evidence of these three witnesses was that they had witnessed the quarrel between the deceased and the Appellant and it was the Appellant who had inflicted those injuries to the deceased which led to his death.

[11] PW5, after confirming the quarrel relating to the Appellant’s attempt to take his daughter back, had explicitly testified that he saw the Appellant stabbing the deceased which led to the deceased falling to the ground. PW10 similarly confirmed the aforesaid attempt and after coming back from upstairs of the Kolong saw the Appellant standing next to the body of the deceased. PW3 on that fateful day was cooking and after hearing noises of quarrelling came downstairs of the house and then saw the Appellant stabbing the deceased.

High Court:

[12] The learned Judge after detailed analysis of the evidence of the prosecution found that the Appellant had a case to answer. It was contended by learned counsel at the trial that these three witnesses were all interested witnesses and further their evidence were contradictory in nature.

[13] The learned Judge dealt with both contentions in the following manners:

[25] First and foremost it must be noted that PW3, PW5 and PW10 are related to the deceased. PW10 was the deceased's wife; PW3 was his daughter whereas PW5 was his son in law. They are interested party in the outcome of this case. The point that I wish to highlight here is whether being an interested parties their evidence should be disbelieved. As I have said PW3, PW5 and PW10 were related to the deceased hence there is always a tendency that they would give evidence favourable to the prosecution.

[26] In the case of Dorai Pandian A/l Munian & Anor v Public Prosecutor [2009] 4 MLJ 525, Ahmad Maarop JCA (as His Lordship then was) in delivering the decision of the Court of Appeal cited with approval the case of Balasingam v Public Prosecutor [1959] MLJ 193 and states that:

"...there is no legal presumption that her evidence (the interested witness) should not be disbelieved, unless there are cogent reasons to disbelieve her (the interested witness) in the light of the evidence to the contrary and the surrounding circumstances..." (the underlined is mine)

...

[33] I have subjected the evidence of PW3, PW5 and PW10 on a maximum evaluation test However, it must be noted that from my observation, these witnesses are simple kampong folk who may not fully understand the evidence posed to them. For example Q&A 306, Q&A 307:

Q306 PUT: kamu tidak bercakap benar sebab isteri kamu sendiri cakap semasa dia beri keterangan semasa kejadian itu kamu menghantar anak kamu ke rumah abang kamu dan kamu hanya sampai di tempat kejadian setelah bapa mertua kamu sudah terbaring, setuju?

A: Setuju

Q307: Ertinya kamu setuju bila saya katakana kamu tidak bercakap benar?

A: Benar

[34] Further, in QA 310 and  QA 311 PW5 was asked:

Q310: l put it to you that: kalau betul kamu ada di sana, kamu tidak Nampak kejadian di mana Hamdan betul-betul ada menikam mertua kamu, setuju?

A: Setuju.

Q311: Setuju apa?

A: Setuju dia menikam.

[35] In the case of Pie bin Chin v Public Prosecutor [1985] 1 MLJ 234, at page 235 it was observed that:

“Discrepancies are no doubt present in this case, as they do ostensibly appear in most cases in evidence of witnesses for the prosecution as well as the defence. The transcript of most evidence, when thoroughly tooth-combed by any able lawyer, never fail to yield some form of inconsistencies, discrepancies or contradiction but these do not necessarily render the witness’s entire evidence incredible. It is only when a witness’s evidence on material and obvious matters in the cases is so irreconcilable, ambivalent or negational that his whole evidence is to be disregarded."

[36] In my opinion, the above discrepancy arises from the PW5’s misunderstanding of the question posed to him. The above discrepancies came about when learned counsel was suggesting to the witness that he did not see the whole incident. It is my observation that the accused could not understand the nature of the question put to him but chose to answer it based on his perception. While he agreed with the learned counsel’s suggestion that he did not see the accused stabbed the deceased, what he meant to say is that he did see the accused stabbed the deceased.

[14] From the above, we had no hesitation in saying that the learned Judge was perfectly correct in calling the Appellant to enter his defence.

[15] In his defence, the Appellant’s counsel contended that there was grave and sudden provocation on the part of the deceased leading to a fight between the deceased and the Appellant. The learned Judge rejected the contention and his reason is as set out in paragraph 71:

"I have ruled that there is no truth in the accused's allegation that the deceased had started the fight first Hence I am of the opinion there is no reason for this court to believe that the accused was exercising his right to private defence when he stabbed the deceased. The accused did not give plausible explanation as to why he had to bring the knife to the deceased’s house. I do not believe his story that he had to bring the knife to his friend’s house prior to him going to the deceased house for the purpose of peeling the mango. If it is true that the accused did go to his friend’s house (by the name of Amir) to eat mango, he can always use the knife at his friend’s house for that purpose. The accused did not call his friend to corroborate his story. The act of carrying the knife is not only unreasonable but also dangerous and illegal. In my opinion the only reason for him to carry the knife with him to the deceased’s house on that fateful day is to prepare for any eventuality when he tried to bring his daughter home. In this respect and in the light of PW5’s evidence that the accused had stabbed the deceased without any provocation from the deceased, it cannot be said that the accused’s act was not premeditated."

Our ground of decision:

[16] From the submission of learned counsel for the Appellant, the complaints were these:

(a) Learned Judge erred in finding there was a prima facie case.

(b) Learned Judge erred in failing to find that there was grave and sudden provocation by the deceased.

(c) Learned Judge erred in failing to find that the Appellant was merely acting in self-defence.

Prima facie case:

[17] Learned counsel’s first contention here was that had the deceased been immediately treated for the hypovolaemic shock, he would not have died and hence the intention to kill by the Appellant was in fact missing which would make the charge of murder unsustainable. With respect, we found no merit on such contention as PW6 had testified that the cause of death to the deceased was hypovolaemic shock due to the stab wound in the chest. That wound is injuries 2 in the report of PW6 and is described as "the breastbone, the covering of the heart, the left side of the heart, the diaphragm, liver, lining of abdomen cavity and the pancreas”. PW6 had testified that those injuries were fatal and since there were no contrary evidence, the High Court was fully entitled to accept such evidence. The fact that the deceased could have been saved in our view were irrelevant as the injuries listed in the report of PW6 were serious in nature. Further there was evidence that attempt was made to save the deceased at the medical center at the army camp on the island of Berhala. The fact that it failed to save the deceased’s life did not neutralize the act of the Appellant.

Grave and Sudden provocation and self-defence:

[18] What amounts to grave and sudden provocation is set out in the case of Che Omar Mohd Akhir v PP [2007] 3 CLJ 281 where the Federal Court said as follows:

[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.

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

[19] The Appellant’s version of events was this. On the fateful day, at about 8 am he had gone to a friend’s house enquiring about a job. Thereafter he together with one Mading and Aplasin had a drinking session at the house of Aplasin but denied that he was drunk. At that house he took a knife and went to another friend’s house called Amir to eat mangoes. After having his mangoes, he left for his home but on the way home, he saw that his daughter was playing at the deceased’s house. There he wanted to take his daughter home but was stopped by PW10 who then took his daughter upstairs. As he was about to leave, according to the Appellant, he was hit by the deceased from behind which led to a fight between them. It was then that he said he lost control and started to stab the deceased.

[20] From the above, learned counsel for the Appellant submitted that there was grave and sudden provocation premised on the following evidence:

The appellant testified during examination in chief as below:-

“Q491: Apa yang terjadi selepas kamu ditahan oleh Rita ibu mertua kamu?

A: Saya bertengkar mulut sama Rita, saya cakap “kenapa kau tahan anak saya ini, ini anak saya, kamu tidak boleh tahan.” Lepas itu dia bawa lari anak saya pergi atas rumah. Terus aku diam saja sebab dalam fikiran ku aku menunggu kehadiran ku di mahkamah syariah. Terus aku mengucap lagi aku mahu balik sudah. Aku melangkah 1 kaki, Guanding memukul dari belakang saya. Disitulah aku bergaduh sama dia.

Q492: Bila kamu sebut bergaduh ini, cuba terangkan apa yang jadi?

A: Saya bertumbuk dengan dia, sampai saya baring terguling-guling, saya tidak tahan pukulan dan menggunakan pisau.

Q494: Cuba kamu terangkan kepada mahkamah apa yang bikin kamu tidak tahan sampai kamu gunakan pisau yang kamu gunakan untuk makan manga?

A: Saya sudah marah saya tidak sedar diri saya guna pisau itu, saya hantam sama dia.

Q495: Adakah kamu tercedera oleh pukulan Guanding Masirin pada ketika itu?

A: Tidak ada, sebab saya terbaring berguling-guling luka di tangan sebelah kiri.”

[21] The evidence of the Appellant must be viewed together with the evidence of PW3, PW10 and PW5. In our view, the failure by the Appellant in explaining why he had carried a knife on that fateful day did not help his version of events of that fateful day. This fact by any reasonable inference just showed that he did not have any peaceful intent to prise the custody of his daughter from the deceased and his family. Further the evidence of PW6, the pathologist and an independent witness, showed conclusively that there were no scratch marks on the part of the deceased’s body except the right forearm which was likely to be defensive in nature. In our view, the Appellant’s bare allegation was only that.

[22] The learned Judge had in our view subjected the Appellant’s evidence in the context of the totality of the evidence and had come to findings which we said were not unreasonable or perverse in nature. He further had warned himself that the duty is always on the prosecution to prove its case beyond reasonable doubt. That being the case, we cannot see any reason why we should intervene in this appeal.

Conclusion

[23] This case was to us quite plain in that there was ample evidence in terms of eye witnesses and scientific evidence for the trial to conclude beyond reasonable doubt that the Appellant had committed the crime of murder. Accordingly, we found that the conviction to be correct in law and safe.

[24] Hence, we dismissed the appeal and affirm the conviction and sentence of the trial Court.

Dated: 6 February 2018

DAVID WONG DAK WAH
Judge
Court of Appeal Malaysia

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision.

COUNSEL

For the Appellant: Sharatha Masyorah Binti John Ridwan Lincon, Messrs. Lincon & Co

For the Respondent: TPR Muhammad Azmi Bin Mashud, Jabatan Peguam Negara

Legislation referred to:

Penal Code, Sections 300(a)-(d), 302

Judgments referred to:

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

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