THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 179 ENGLISH

Yosep Yangubani v Public Prosecutor
Suit Number: Criminal Appeal No. Q-05(M)-46-01/2016 

Criminal law – Murder – Conviction – Death sentence – Appeal – Whether the conviction safe

Criminal law – Exception of private defence – Defence of sudden fight in the heat of passion upon a sudden quarrel – Defence of grave and sudden provocation – Burden of proof of applicability of exceptions under section 300 of the Penal Code

Criminal law – Dying declaration – Conditions for admissibility of a dying declaration

Criminal law – Whether the prosecution had failed to make out a prima facie against the appellant on the charge as amended – Whether the trial court had not adequately considered the defence posited by the appellant

JUDGMENT

[1] The appellant was found guilty, convicted and sentenced to death on the following amended charge:

"That you, on 5.8.2014 between 12.00 a.m. and 12.30 a.m at No. 25, Block D, Phase 1, Immence Fleet Sdn. Bhd. Oil Palm Estate, Sungai Luam, Mukah, in the District of Sibu, in the State of Sarawak, did commit murder of Ropinas Muda Tabu (L) (Passport: A7515849) and you have thereby committed an offence punishable under section 302 of the Penal Code.”

[2] The appeal before us was in respect of the said conviction and sentence.

The Case For The Prosecution

[3] The crime scene was at one of the estate’s workers’ living quarters, specifically at house No. 25, Block D, Phase 1, Immence Fleet Sdn. Bhd. Oil Palm Estate in Mukah, Sarawak.

[4] The said workers’ living quarters were in fact terrace houses and referred to as ‘bilik’ or rooms by the estate workers and the prosecution witnesses.

[5] Accordingly to PW-11 (Insp. Peter Yong Yew Ping, the investigating officer (I.O)) of the case, house No. 34 was about 25 meters away from house No. 25.

[6] At about 12.00 a.m. on 5.8.2014, the deceased (Ropinas Muda Tabu) was seen by PW-6 (Adrianus Malo) walking unsteadily whilst clasping his bleeding chest and collapsed in front of house No. 34, located at the same Block D, and died.

[7] PW-6 lived at the house No. 34. According to him, at about 12.00 a.m on 5.8.2014, whilst sleeping, he was awakened by someone screaming. He went out of his house and saw the deceased walking unsteadily, clasping his chest in front of his house (house no. 34). The deceased was bleeding from the right chest.

[8] He could see clearly as the lighting condition outside house No. 25 and 34 was bright. There was also a light bulb outside house No. 25 which was switched on.

[9] PW-6 then approached the deceased and asked him: ‘siapa potong kamu’ (who had slashed you?) It was only after he had asked the same question the third time that the deceased uttered just one word: ‘Yosep’ and collapsed. He was only about 2 to 3 feet from the deceased at the material time.

[10] PW-6 further narrated that after the deceased collapsed on the ground, he saw the appellant standing in front of house No. 25, holding something appearing like a parang. He was about 25 meters away from the appellant and he could see him clearly because the place was brightly lit.

[11] PW-6 said that he knew this ‘Yosep’ that the deceased had mentioned. He identified the appellant as ‘Yosep’. The appellant was also a worker at the estate and he saw him going to work daily. He had also seen him sitting outside house No. 25 and everyone at the work place and estate called the appellant ‘Yosep'.

[12] PW-6 said that he left for the police station at about 1.00 a.m. with the manager of Immence Fleet Sdn. Bhd. Oil Palm Estate, PW-4 (Steven anak Beng) and PW-9 (Yohanes), the estate supervisor.

[13] PW-10 (Pelipus Pati Mone) was a worker at the estate and lived in house No. 25, Block D, Phase 1. The house had 2 bedrooms and a living room. 6 persons lived in the house i.e the appellant, the deceased, Stepanus, Yohanes, Markus and PW-10 himself.

[14] PW-10 said that he and Stepanus slept in the living room on separate beds. The appellant and the deceased slept in the bedroom nearest the front door (Bilik 1 in sketch plan exhibit P15) whereas Yohanes and Markus slept in the other bedroom (Bilik 2 in exhibit P15).

[15] PW-10 said he went to sleep at about 8.00 p.m. He saw the appellant already in his bedroom lying down.

[16] At about 12.00 a.m., he was awakened when he heard noises outside the house. He also heard the deceased screaming. He got up and saw Stepanus lying in the living room covered with blood.

[17] PW-10 then ran out and saw the deceased walking unsteadily from house No. 25 towards house No. 34. The deceased was holding his right chest and blood was flowing from his chest. He followed the deceased and was 4 feet behind the deceased when PW-6 approached the deceased and asked him 3 times: ‘siapa potong kamu?’ The deceased answered after the 3rd time and uttered the name ‘Yosep’, before collapsing to the ground. PW-10 said that he heard clearly PW-6 asking the deceased and also clearly heard the deceased uttering the name ‘Yosep’ in reply. The place was brightly lit at the material time.

[18] PW-10 also said that after the deceased collapsed, he went back to house No. 25 and switched on the lights. Stepanus was still lying in the living room covered with blood. He saw Markus and Yohanes still inside the house but the appellant was not around.

[19] PW-10 said that other than the appellant, he did not call anyone else in house No. 25 by the name of Yosep. He knew that the deceased and all the other occupants of the house called the appellant ‘Yosep’.

[20] PW-10 said that on the night of 4.8.2014, neither he nor any of the occupants of house No. 25 had brought any one to stay at the house.

[21] PW-10 said that he had not heard from anyone working in the estate gossiping or talking that the deceased and Stepanus had raped the appellant’s wife in 2013 in Indonesia. He also had not heard that these two persons had always bullied and made fun of the appellant about this incident.

[22] PW-11, the investigating officer, testified that he had arrived at the crime scene at about 6.00 a.m. on 5.8.2014 with PW-4. He saw the deceased body outside house No. 34 and Stepanus body in the living room of house No. 25.

[23] At the scene, PW-11 was told by PW-10 that he heard the deceased had said ‘Yosep’ when PW-6 asked him who had slashed him. PW-6 also told him that he had seen the appellant outside house No. 25 holding a parang.

[24] PW-11 agreed that apart from the appellant, he had not interviewed Yosep Yingo Holo, Yosef Dita Dawa and Yosep Data Kaliku.

[25] PW-11 also agreed that during the investigation, the appellant had informed the police that the deceased and Stepanus had raped his wife in Indonesia in 2013.

[26] PW-11 also said that during his investigations, the appellant did not inform him of the past treatment at the hands of the deceased and Stepanus. The appellant also did not mention the word ‘bodoh’ or ‘malas’.

[27] PW-11 confirmed that PW-6 had given a statement under section 112 of the Criminal Procedure Code (‘CPC’) that PW-6 had asked the deceased 3 times: ‘siapa potong kamu’ and that the deceased had answered ‘Yosep’ was reduced into writing. He said that PW-6 did not mention in his statement that he saw the appellant holding a parang outside House No. 25.

[28] PW-4 said that the deceased and appellant joined the estate in 2014. He agreed that in August 2014, the estate also had in employment-

(i) Yoseph Yingo Holo who worked and stayed at Phase 5;

(ii) Yoseph Data Kaliku who worked at Phase 3; and

(iii) Yosef Dita Dawa who worked at Phase 7 but residing at Phase 3.

[29] The appellant worked at Phase 7 but lived at Phase 1 quarters. The distance between Phase 1 and Phase 5 was 20 km and 45 minutes by car; Phase 1 to Phase 7 was 15 minutes by car; and Phase 1 to 3 was 15 km and 20 minutes by car.

[30] According to PW-4, the estate did not allow any worker from other phases to stay at Phase 1. Neither did it ask any worker from other phases to work at Phase 1 in August 2014.

[31] PW-3 (Sgt. Sindu) testified that he and his police team had combed the Immence Fleet Estate area looking for the appellant until he received information from the public that the appellant was at Rumah Panjang Muhamat. The appellant was sleeping when the police party arrived at the Rumah Panjang. He did not resist arrest and no weapon was recovered from him at the time of his arrest.

[32] A parang (exhibit P3) was recovered by PW-5 (Insp. Mohd. Firdaus) at Kenso Pelita area based upon the information given by the appellant. Kenso Pelita was about 500 meters from Rumah Panjang Muhamat.

[33] PW-7 (Dr. Norliza binti Ibrahim), the pathologist conducted the post mortem on the person of the deceased on 14.8.2014. Her report is exhibit P26. The deceased had suffered 2 stab wounds and 4 incision wounds.

[34] PW-7 found that the chest wound which was a 5 cm long x 10 cm deep stab wound on the upper part of the right chest and 8.5 cm from the right armpit, had cut the right axillary artery and vein and the right sub capsular artery and right median nerve which are blood vessels and nerves at the armpit. Part of the right pectoralis major (muscle of the chest wall) was also cut. She said that this injury had cut the major blood vessels at the arm pit and the deceased would have lost a lot of blood leading to hypovolemic shock. She opined that this injury was sufficient in the ordinary course of nature to cause death and the deceased’s chance of survival was slim. This stab wound injury was also consistent to having been caused by a sharp and pointed object such as a knife or parang.

[35] PW-7 also said that there are 4 incision wounds on the left forearm and palm and related injuries which were consistent with being defensive wounds.

[36] Based on the strength of the evidence enumerated above, at the end of the prosecution’s case, the learned trial judge found that the prosecution had established a prima facie against the appellant on the charge preferred against him. The appellant was hence ordered to enter his defence.

The Appellant’s Defence

[37] The appellant elected to give evidence on oath.

[38] He stated that he came from Indonesia.

[39] In 2013, he was living in an Indonesia village with his wife and 3 children. Both the deceased and Stepanus also lived in the same village.

[40] One day, his crying wife told him that she had been raped by the deceased and Stepanus. However, they did not lodge any police report as they were scared and felt ashamed.

[41] In 2014, he went to Sarawak with some others including the deceased and Stepanus. During the journey, he was reprimanded by the agent because the deceased and Stepanus had falsely reported that he had tried to escape.

[42] He, together with the deceased and Stepanus, ended up working as grass cutters with Immence Fleet Sdn. Bhd. Oil Palm Estate where he was quartered in house No. 25, Phase 1, of the estate. The appellant confirmed PW-10’s evidence that the deceased, Stepanus, Markus, Yohanes and Pelipus were the other workers staying in the same house and the deceased had shared the same room with him.

[43] The appellant stated that from the time they arrived at the estate sometimes in March, 2014 until August 2014, the deceased and Stepanus would hit and kick him once a week in his room during the night or at times during the day. They would also remark: ‘not scared of you, who can help you?’ He was at a loss why they said that to him.

[44] In the early hours of 5.8.2014, he was in his room sleeping when the deceased came from somewhere and kicked him on the leg and slapped him on the cheek, saying: ‘stupid, why you sleep so early?

[45] When the deceased continued to hit and kick him and saying he was not scared, the appellant claimed he lost control, took out his parang that he kept in his room and stabbed the deceased.

[46] He reiterated under counsel’s probing that the reason he stabbed the deceased was because the deceased had kicked and hit him and said ‘not scared’.

[47] The appellant further narrated that after stabbing the deceased, he went out of the room. Stepanus then charged at him and attacked him. He stabbed Stepanus and ran away. He took the parang with him for protection. At daylight, a friend met him and asked for the parang to be thrown away.

[48] Later, the appellant found a house to ask for a drink and a place to sleep. He was sleeping under the house when the police came.

[49] At the end of the defence’s case, the learned trial judge rejected the defence put forth by appellant, namely-

(i) the appellant was exercising his right of private defence when he inflicted the fatal stab wound upon the deceased; and

(ii) If the appellant had exceeded his right of private defence, he had proved the applicability of the defence of sudden fight or grave and sudden or cumulative provocation emanating from the deceased and Stepanus.

[50] The learned trial judge found that the appellant had failed to prove on the balance of probabilities; that the aforesaid defences did apply to warrant the appellant’s acquittal; and upon the whole evidence, the defence had not cast a reasonable doubt upon the prosecution’s case. The prosecution on the other hand had proved its case beyond a reasonable doubt. Subsequently the appellant was found guilty, convicted and sentenced to death of the murder of the deceased.

The Appeal

[51] The following grounds were advanced by learned counsel:

(i) that the prosecution had failed to make out a prima facie against the appellant on the charge as amended; and

(ii) The learned trial judge had not adequately considered the defence posited by the appellant.

Our Decision

Ground (i) - no prima facie case

[52] Learned counsel submitted that there were no eye witnesses who saw that it was the appellant who had inflicted the fatal wound/ wounds on the deceased and the learned trial judge had hence relied heavily on the deceased’s dying declaration given to PW-6.

[53] Learned counsel further submitted that the evidence of the investigating officer, PW-11, revealed that the deceased’s dying declaration made to PW-6 was reduced into writing vide PW-6’s statement under s.112 of the CPC. PW-10’s testimony that he heard the deceased’s dying declaration was also reduced into writing under the same law. However, the s.112 statements of both PW-6 and PW-10 were not tendered in evidence in Court.

[54] Hence, learned counsel submitted that the dying declaration as narrated orally in court by PW-6 and PW-10 were not admissible in evidence as it violates the legal requirement that the said dying declaration which was reduced into writing must also be produced. In addition, it is the best evidence available.

[55] According to learned counsel, such written statement is required in order to ascertain the actual words uttered by the deceased and to corroborate the evidence of PW-6 and PW-10. Also, such written statement would have carried more weight given that it would have been contemporaneous. The failure by the prosecution to produce the s.112 statements of both PW-6 and PW-10 was fatal. Learned counsel relied on Toh Lai Heng v PP [1961] 27 MLJ 53 to support his proposition.

[56] In addition, it was submitted that PW-6 was not sure whether the appellant was holding a parang when he saw him near house No. 25 that wee hours of the morning. And, PW-6 also did inform PW-11 that the appellant was there.

[57] Learned counsel further submitted that at that time there were 3 other persons named ‘Yosep or Yusof’ working in the estate but PW-11 had failed to investigate any of these 3 persons.

[58] In regard to the aforesaid submission by learned counsel, the learned trial judge found as follows, at pp. 34, 35 of Jilid 1, RR:

"[39] As regards the argument that the failure to tender the s.112 statements of PW6 and PW10 was fatal to the case for the prosecution, with respect, this is misconceived. As I have already stated, the authorities are clear that a dying declaration, especially when spoken to witnesses at the scene of the attack, need not be proved by writing. In the Ray Solis case, supra a witness, PW9, testified that the deceased was a tenant of a room at the ground floor of her house. PW9, who lived on the upper floor, upon hearing a cry for help, went down the stairs and saw the deceased holding his right chest and was covered with blood. At the point the deceased told her that ‘Ray’ had stabbed him and needed help to go to the clinic. The Court of Appeal held that it was not shown why or on what reasonable basis PW9’s testimony on the dying statement that the deceased had made to her ought to have been disregarded by the learned trial judge. The trial judge had held her to be a reliable and consistent witness without any predisposed grudge or ill will against the appellant. Hence, the trial judge had not misdirected himself in law or on the facts in placing reliance on the dying statement made by the deceased to PW9 on the person that had inflicted his injuries. In my view, it was clear that the learned trial judge had relied on the oral evidence of PW9 on the dying declaration to find the accused guilty and the conviction was affirmed by the Court of Appeal.

[40] Similarly in our present case. Despite the rigorous cross­-examination, PW6 and PW10 maintained that the deceased uttered the name ‘Yosep’ upon being asked by PW6, "Siapa potong kamu?” They maintained that the deceased was lucid and spoke clearly at that time. The evidence of PW6 and PW10 on this matter was consistent throughout the trial. Furthermore, it had not been shown that they harboured any grudges against the accused who they said was a fellow worker in the estate and of the same nationality. Hence, I accepted their evidence that the deceased had made the dying declaration to PW6 that it was Yosep that had inflicted his injuries. Not only did his statement identify Yosep as the person that had inflicted the injuries, but also, the ‘transaction’ or slashing that led to the injuries that subsequently resulted in the death of the deceased as PW7 had testified.”

[59] We were entirely in agreement with the learned trial judge that there is nothing in law to suggest that the dying declaration must to be reduced into writing as a pre-condition of its admissibility. Rose CJ at pp. 53, 54 of Toh Lai Heng (supra) stated in very clear terms:

"It is no doubt true that a dying declaration need not be proved by writing at all; and there may be cases where eye witnesses at the scene of an attack, or persons arriving shortly thereafter, may hear the last words spoken by a dying man and their recollection of those words will properly be received in evidence. In practice, of course, such a witness would be required to give the exact words spoken by the deceased and, so far as they are relevant, any words spoken to the deceased by the witness himself.”

[60] The Singapore Court of Criminal Appeal also stated as such in Ong Her Hock v PP [1987] 2 MLJ at p.46:

"In our opinion, while it is settled law that ‘if a dying declaration is reduced to writing-and this would invariably be the case in the event of the witness in question being an investigating Police Office, Magistrate or someone of that kind-the actual words of the deceased must be recorded’, the recollection of the last words spoken by a dying man by a witness who is at the scene or arrives shortly thereafter and hears a dying declaration may properly be received in evidence (see Toh Lai Heng v Regina (1) page 54). In the present case the witnessed gave evidence of their recollection of the last words spoken by the deceased and their evidence was in our judgment properly admitted.”

[61] Hence, what matters were the last words exactly spoken by the deceased to the witness or witnesses. It need not be proved in writing. In the case presently before us, both PW-6 and PW-10 had given clear evidence that the deceased had answered ‘Yosep’ when asked by PW-6, ‘Siapa potong kamu?’. Apparently they had given evidence of the exact words spoken by the deceased. Although the deceased was walking unsteadily and clasping his bleeding chest, nevertheless both PW-6 and PW-10, who were between 2 to 3 feet away from the deceased were very certain that the deceased had made the statement in answer to PW-6’s questioning. There was nothing in the evidence that the deceased, as he was, might have been imagining things or was suffering from delusion due to loss of blood. More importantly, it has not been shown to us on what basis the evidence of PW-6 and PW-10 relating to the same ought to have been disregarded by the learned trial judge. The Court had found that PW-6 and PW-10 were reliable witnesses and there was nothing in the evidence to suggest that the hearing of PW-6 and PW-10 were impaired at the material time. In our judgment, the evidence of PW-6 and PW-10 pertaining to the dying declaration made by the deceased was properly admitted in evidence.

[62] On learned counsel’s contention of want of corroboration on account of the prosecution’s failure to produce the s.112 statements of both PW-6 and PW-10, we would reiterate that this Court’s pronouncement in respect of the same in Ray Solis v PP [2015] 3 CLJ 215, represents the correct proposition of the law. At pp. 228-230, the Court stated:

"[52] It is also the law here that such a dying declaration or statement need not be corroborated by some other evidence. The same learned commentator in Evidence: Practice and Procedure above cited, goes on at p. 335 to state:

A dying declaration does not need corroboration.

In Nembhard v R [1982] 1 AER 183, the Privy Council rejected an argument that a dying declaration must be corroborated if it is to be relied on. In State Of Uttar Pradesh v. Chet Ram & Ors [1990] 1 CLJ 1079 the Indian Supreme Court said that a dying declaration, needless to say, does not require any corroboration as in the case of the evidence of an accomplice or a confession. However, where the deceased who made the dying declaration is an accomplice then corroboration of his evidence is desirable and necessary. [See Hill JA in Mary Shim v PP [1962] MLJ 132, 134 CA].

[53] …

[54] This position in law has been reaffirmed by our Court of Appeal in the recent case of Seraman A Adipan v PP [2009] 5 CLJ 123; [2009] 3 MLJ 64, where the deceased had made the ‘statement’ to several persons. The Court of Appeal endorsed the learned High Court Judge’s finding there in that case that so long as it could be determined that the deceased had made it and that he had the ‘capacity and clarity’ of mind, it was absolutely safe to accept the oral or written statement of a deceased as to the cause of his death or to any circumstances of the transaction which resulted in his death.

(The aforesaid Court of Appeal decision has since been affirmed by the Federal Court).”

[63] Be that as it may, the evidence of PW-10 would offer ample corroborative evidence that the deceased had given the said dying declaration to PW-6. As stated earlier, PW-10 also gave evidence of having heard PW-6 asking the deceased 3 times ‘siapa potong kamu’ and the deceased had answered once ‘Yosep’. This evidence is consistent with the evidence given by PW-6 and no doubt is a manifestation of corrobation in its clearest term.

[64] In addition, PW-11 had given evidence that PW-10 had informed him that before the deceased collapsed, he had heard the deceased saying ‘Yosep’ after PW-6 had asked him 3 times as to who had slashed him. This information was given to PW-11 when he was investigating at the scene of the crime in the early hours of 5.8.2014. It is clear that PW-10, had at the first opportunity informed PW-11 of the dying declaration made by the deceased to PW-6, hence ruling out that it was a recent fabrication or an afterthought.

[65] On the issue of PW-11’s failure to investigate the 3 other persons also carrying the names ‘Yosep’, in our judgment, the evidence of PW-4 relating to the whereabouts or where the 3 other said persons were living, staying or working at the material time as enumerated at paras. 28, 29 and 30 above, is sufficient to exclude the involvement of these 3 persons in the murder of the deceased. In addition, the evidence of PW-6 that the appellant was the only person called ‘Yosep’ living in the workers’ quarters in Phase 1 and he had seen the appellant working and living in Phase 1 and the evidence of PW-10 that all the occupants of house No. 25, called the appellant ‘Yosep’ and no one else was known or called as ‘Yosep’ in the said house, firmly established the identity of the person involved in the murder of the deceased, to wit, the appellant, of whom the deceased had referred to as ‘Yosep’ in his dying declaration.

[66] Further, the evidence of PW-9 (Yohanes) the estate’s supervisor, is most telling. The learned trial judge had this to say in respect of PW-9’s testimony, at p.35, Jilid 1, RR:

"[41] I accepted the evidence of PW9 that other than the accused, there was no other worker by the name of Yosep staying in Phase 1. His evidence that the accused had no other nick name and that he had not heard any other worker called the accused by any other name was also credible. To my mind PW9 would have knowledge of these matters as he was the supervisor of all the workers there and checked their attendance every morning. That was how he found out that the accused did not turn up for work on the morning of 4.8.2016. Based on his role as supervisor and his knowledge of the workers in Phase 1, I also accepted his evidence that there was no one else other than the workers from Phase 1 in the group of people that had gathered around the body of the deceased during the incident.”

[67] For the reasons given, we found the appellant’s 1st ground of appeal bareth of any merit.

Ground (ii) - the learned trial judge had not adequately considered the defence

[68] A rather central feature in the appellant’s defence was his testimony that one fine day back in Indonesia in the year 2013, his crying wife had told him that she had been raped by the deceased and Stepanus. Yet they were too embarrassed to lodge a police report.

[69] In spite of the alleged rape, the appellant was willing to travel together with both the deceased and Stepanus to Sarawak to look for work, where the trio ended up working as grass cutters at the same site at Immence Fleet Sdn. Bhd. Oil Palm Estate. In addition, the appellant also ended up quartered in house No. 25 with the deceased and Stepanus. In fact, the deceased was his roommate in the said house.

[70] It is also the defence’s narrative that from the time they had arrived and settled down at the estate in March 2014 until August 2014, the deceased and Stepanus would randomly kicked and hit the appellant once a week in his room either during the day or at night. They would also taunt him by uttering ‘...not scared of you, who can help you...’.

[71] In the early hours of 5.8.2014, while he (the appellant) was sleeping in his room, the deceased kicked his legs and slapped his cheek and uttered: ‘...stupid, why you sleep so early...’. The appellant claimed that he lost control, took out his parang and stabbed the deceased when the deceased continued to kick and hit him.

[72] Based on the above testimony, learned counsel submitted that the appellant was exercising his right of private defence when he inflicted the fatal stab wound upon the deceased (under Exception 2 of s.300 of the Penal Code). It was also submitted that the deceased had proved the applicability of the defence of sudden fight in the heat of passion upon a sudden quarrel (under Exception 4 of s.300 of the Penal Code) and the defence of grave and sudden provocation (under Exception 1 of s.300 of the Penal Code).

[73] By s.105 of the Evidence Act, 1950, the burden is shifted and is now upon the appellant to prove the applicability of the said Exceptions and the burden is discharged on a balance of probabilities - see Ikau Anak Mail [1973] 2 MLJ 153.

[74] We would first express our view that the appellant’s narrative that his wife was raped by the deceased and Stepanus back in Indonesia makes no complete sense on account that in spite of the said rape, the appellant thereafter willingly embarked on a journey with the deceased and Stepanus to Sarawak to look for employment. Further, they ended up as grass cutters at the same site in the estate and even become housemates and in fact the deceased was his roommate. No reasonable man would have done what the appellant did in the manner above when his wife was allegedly ravished by the same persons, now his co-workers and housemates. In addition, the offence of rape is a very serious offence. Yet, the appellant did not bother to lodge any police report. In such event, we were indeed very skeptical whether the said incident (rape) did in fact occur.

[75] On the other hand if the allegation is true, it provides the perfect fodder for the appellant to tailed the deceased all the way to Sarawak and finally ended both the lives of the deceased and Stepanus.

[76] In respect of the alleged physical abuse and taunts, under cross-examination the appellant agreed that he had stabbed the deceased that night because the deceased had woke him up by kicking and slapping him on the face. However, he became evasive and gave inconsistent answers when he was asked when the kicking and hitting actually started.

[77] Initially he answered that he did not know how to count. When asked if the kicking and hitting started 3 months before the incident, he replied that he was hit once a week. When it was suggested that he did not know when the kicking and hitting started, he answered that he was hit and kicked during the day and at night.

[78] When the appellant was again asked when was the first time he was hit by both the deceased and Stepanus, he now answered that he could not remember. When it was next put to him that he could not remember because the kicking and hitting did not happen, he maintained that they did hit him and they had their reason to do so.

[79] Further, he answered that he did not know how long the kicking and hitting lasted.

[80] When requested to demonstrate how they had kicked and hit him, the appellant said that they kicked his foot and slapped his cheek. Both of them kicked him hard and used their hands to kick him. The appellant then changed his evidence and said that only the deceased had hit and kicked him.

[81] When asked what Stepanus did, the appellant said that Stepanus assisted the deceased by standing there and said something. When put that Stepanus did not hit and kick him, he disagreed.

[82] In re-examination, when his counsel asked why the deceased and Stepanus hit and kicked him, the appellant merely answered that they hit, slapped and insulted him and raped his wife and the kicking and hitting started from the first month after their arrival at the estate and it happened once a week.

[83] The appellant was adamant under repeated probing by his counsel that the reason he stabbed the deceased was because the deceased had repeatedly kicked and hit him and said ‘...not scared...’ until he could take it no more.

[84] However, the investigating officer, PW-11, testified that in the course of his investigations, the appellant did not, at any time, inform him of the weekly beatings inflicted upon him by the deceased and Stepanus. The appellant also did not mention that both the deceased and Stepanus had called him ‘bodoh’ or ‘malas’. In fact, the appellant had only informed him that his wife was raped by the deceased and Stepanus back home in Indonesia in 2013.

[85] In addition, PW-10, the housemate of both the deceased and the appellant, testified that he had not heard from anyone working in the estate or at the workers’ quarters gossiping or talking that the deceased and Stepanus had raped the appellant’s wife in 2013 in Indonesia. He also had not heard that these two persons had always bullied the appellant by kicking and hitting him and verbally abusing him.

[86] Such was the irrefutable evidence stacked against the appellant. His evidence is unbelievably incredible. Coupled with the evidence of PW-10 and PW-11 and having regard to all the circumstances of the case, in our judgment, the appellant had failed to prove the existence of facts or circumstances or occurrences to warrant or justify his reliance upon the said Exceptions embedded in s.300 of the Penal Code. The appellant had failed to discharge the burden that the Exceptions relied by him in his defence did apply to him. Indeed the evidence adduced does not suggest the occurrence of any fight at all between the appellant and the deceased nor the presence of sudden and gave provocation that precipitated the attack upon the deceased nor circumstances warranting the appellant to exercise his right of private defence to the extent of ending the deceased’s life. PW-11 was very firm in his evidence that the appellant did not suffer from any injury when the appellant was handed to him by the arresting officer.

[87] Finally, we were firmly of the view that the appellant had acted in a cruel manner and had taken undue advantage when he attacked and inflicted the fatal stab wound upon the deceased. The deceased apparently was unarmed. No weapons were recovered by the police at the crime scene to indicate that the deceased was armed at the material time.

[88] The appellant carried the burden to prove that all possible defence can be applied in this case. The appellant had failed to do so. We opined that the learned trial judge had rightly considered every possible defence that may be applied to the defence’s case and found none could apply. There is little room for our interference-see Che Omar Mohd. Akhir v PP [2007] 3 CLJ 281; PP v Subir Cole [2015] 3 CLJ 505.

Conclusion

[89] For all the reasons above, we find that the conviction of the appellant is safe. The learned trial judge had meticulously gone through and correctly appreciated the evidence before her. Her findings were amply supported by the evidence adduced. There were no appealable errors to merit our intervention. Henceforth, we dismissed the appeal before us and affirmed the conviction and sentence handed down by the High Court.

DATED: 31st MAY 2018

AHMADI HAJI ASNAWI
Judge
Court of Appeal, Malaysia

COUNSEL

For the Appellant: Ranbir Singh Sangha, T/N: Ranbir S. Sangha & Co, Peguambela & Peguamcara

For the Respondent: Wan Shaharuddin b. Wan Ladin, Timbalan Pendakwa Raya, Jabatan Peguam Negara, 62100 Putrajaya

Legislation referred to:

Criminal Procedure Code, Section 112

Evidence Act 1950, Section 105

Penal Code, Sections 300, 302, Exceptions 1, 2 and 4 to section 300

Judgments referred to:

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

Ikau Anak Mail [1973] 2 MLJ 153

Ong Her Hock v PP [1987] 2 MLJ

PP v Subir Cole [2015] 3 CLJ 505

Ray Solis v PP [2015] 3 CLJ 215

Toh Lai Heng v PP [1961] 27 MLJ 53

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