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Public Prosecutor V Ejah Bin Jaafar [2009] MYSSHC 35 (6 March 2009)

[Criminal Trial No: S45-03 of 2007]

MALAYSIA1

IN THE HIGH COURT IN SABAH AND SARAWAK2

AT SANDAKAN3

CRIMINAL TRIAL NO S45-03 OF 20075

PUBLIC PROSECUTOR Vs EJAH BIN JAAFAR7

GROUNDS OF JUDGEMENT9

1. The accused, Ejah bin Jaafar, is charged under section11 302 of the Penal Code. The amended charge of which12 reads:13

"That you, with three others who are still at large on 21st 14

day of October, 2006 at about 2.30 p.m. at unnumbered15 house, Kampong Muhibbah, Mile 2 1/2, Jalan Utara, in16 the District of Sandakan, in the State of Sabah, in17 furtherance of a common intention between your all, did18 commit murder by causing the death of one Hajan Bin19 Jaiman, 37 years old, and that you have thereby20 committed an offence punishable under section 302 of21 the Penal Code and read together with Section 34 of22 the same Code"23

2. Burden of proof25 Pursuant to s 173(f) of the Criminal Procedure Code26 (CPC), it is incumbent upon the prosecution to establish a27 prima facie case against the accused at the conclusion of28 the case for the prosecution. In this connection the29 [Criminal Trial No: S45-03 of 2007]

prosecution must adduce credible evidence on each and1 every essential ingredient of the offence. The Court will2 subject the evidence led by the prosecution in its totality to3 a maximum evaluation. This will entail carefully4 scrutinizing the credibility of each of the prosecution's5 witnesses and taking into account all reasonable inference6 that may be drawn from the evidence. If the evidence7 admits two or more inferences, then draw the inference8 that is more favourable to the accused. (See In PP v Ong9 Cheng Heong (1998) 4 CLJ 209 and P.P. v Mohd Radzi10 Abu Bakar [2006] 1 CLJ 457.11

Essential Ingredients of murder13

3. That the death of Hajan Bin Jaiman has taken place;14 (i) That such death has been caused by, or is a15 consequence of, the act of the accused, with three16 others who are still at large.17

(ii) That such act (1) was done with the intention of causing18 death; or (ii) was done with the intention of causing19 such bodily injury as (a) the accused knew it was likely20 to cause death; or (b) was sufficient in the ordinary21 course of nature to cause death; or (iii) was known to22 him to be so imminently dangerous that it must in all23 probability cause (a) death; or (b) such bodily injury as24 is likely to cause death, the accused having no excuse25 for incurring the risk of causing such death or injury.26 27

[Criminal Trial No: S45-03 of 2007]

Whether the death of Hajan Bin Jaiman has taken place1

4. The post-mortem of Hajan Bin Jaiman was conducted by2 PW9 Dr Jessie Hiu @ Dorey Hiu Chen Chen, Pathologist3 serving at Hospital Queen Elizabeth, Kota Kinabalu. Her4 qualification included a M.B. from University Sains5 Malaysia in 1991 and Master of Pathology in Univerity6 Malaaya in 1998. She had attended courses and training7 pertaining to her work. She is a member of Indo-Pacific8 Association of Law Medicine and Forensic Science.9 10

5. On job experience, she conducted on average 300 cases11 a year and has given evidence in court as forensic12 pathologist on average 5 to 10 times a year.13

6. PW9 gave evidence that on 27th October, 2006 she15

conducted a post-mortem at the Duchess of Kent Hospital16 in Sandakan on a deceased named Hajan Bin Jaiman.17 Before the post-mortem PW8 Julapsi in Aplaha, the18 cousin of the deceased, duly identified the deceased19 (confirmed by PW8). The findings which she found from20 the external and internal examination of the deceased was21 recorded in a written report during the post-mortem; the22 type written copy of which is admitted as exhibit P8.23 24

7. The external examination reveals fifteen chop and incised25 wounds comprising the followings:26

i. two chop incise wounds and one incise wound on the27 head.28

[Criminal Trial No: S45-03 of 2007]

ii. Six similar injuries on the body resulting in cuts to the1 ribs and bleeding into the pleura cavities i.e the chest.2 iii. chop wound on the right forearm and left arm.3 iv. chop wound on the left arm almost amputating the arm.4 v. four incise wounds on the right upper limb.5

Other injuries included an abrasion and bruise on the right6 shin and a bruise on the left shin.7

8. PW9 found that the conjunctivae were pale indicating that9 the deceased had lost a lot of blood.10

9. PW9 explained that chop wound is cut involving soft12 tissue and bone whereas incise wound is cut involving13 only the soft tissue.14

10. The internal examination reveals cuts to the ribs and skull.16 One of the chop wound in the head caused mild bleeding17 on the brain. The chop wound on the left chest caused18 bleeding into the left pleura cavities resulting in19 compression and collapse of the left lung. The right lung20 showed emphysematous bullae at the apex which is a21 chronic disease causing dilation of the air sac of the lung.22 23

11. PW9 opined that the injuries found in the post-mortem24 would have been caused by a sharp weapon such as a25 parang and that the parang i.e. exhibit P5 could have26 caused those injuries.27

[Criminal Trial No: S45-03 of 2007]

12. PW9 further opined that the cause of death was multiple1 chop incised wounds which caused massive bleeding and2 blood loss resulted in death.3

13. PW9 explained in cross-examination that the chronic lung5 disease suffered by the deceased could not have6

accelerated or contributed to the death of the deceased.7 This is because although the deceased's portion of the8 right lung was small, he had large portion of healthy lungs.9 If the disease had contributed to the death it was not10 significant.11

14. PW9 agreed in cross-examination that time is crucial in13 emergency condition. However, she is of the view that the14 number of injuries sustained by the deceased would make15 it very difficult to resuscitate and stop the bleeding.16 17

15. Regards being have to PW9's qualification and her18 experience, I have no reason to doubt her finding on the19 injuries sustained by the deceased as well as the cause of20 his death. Accordingly, I find that the prosecution has21 adduced ample credible evidence for establishing the first22 ingredient of the charge.23

Second Ingredient: That such death has been caused25 by, or is a consequence of, the act of the accused, with26 three others who are still at large.27

16. The incident leading to the death of the deceased28 happened on Saturday 21st

October 2006 at about 2.3029

[Criminal Trial No: S45-03 of 2007]

p.m. at Kampung Muhibbah, Mile 2 1/2 , Sandakan. As1 can be seen from the photographs i.e. P2, the wooden2 houses in this kampong were built on stilts above the3 water and they were connected to each other by wooden4 bridge made of planks. During low tide the ground below5 the houses was muddy ground.6

17. The key witnesses for the prosecution are PW4 Faidah8 Binte Hajan, PW5 Halid Bin Hajah Rusmninda , PW6 Binti9 Mudjahirim and PW7 Armal bin Muhaaajirin. PW4 and10 PW5 are children of the deceased who witnessed the11 attack on the deceased that led to his death. PW6 and12 PW7 were the neighbour of the deceased.13

The evidence of PW615

18. It was a hot afternoon. PW6 Rusminda Binti Mudjahirin16 was sitting on the bridge with her five years old child.17 While she was sitting outside her house she could see the18 deceased who was also sitting on the bridge in front of his19 house. The distance between their houses was20

approximately 23 feet.21

19. While she was sitting on the bridge, she saw four men23 armed with parangs running towards the deceased. She24 saw the deceased stood up and went into his own house25 but the four persons chased him right up to the side of the26 kitchen. At that time PW6 was scared and so she quickly27 gathered her child and went back into the house and28 locked the door.29

[Criminal Trial No: S45-03 of 2007]

20. PW6 said that she recognized one of the four men as1 Sangkaan who is the son of the Iman in the her kampong.2 However, she does not know whether Sangkaan was3

related to anyone in her neighbourhood.4

21. According to PW6, she could hear from her house sound6 of someone kicking the door. She opened the door when7 she heard PW4 Faidah Binte Hajan cry, and she saw8 PW4 on the ground where the deceased's body was lying.9 10

22. PW6 said in cross-examination that she knew the11 deceased who had been her neighbour for three years12 prior to the incident and they used to say hello to each13 other. She disagreed when it was put to her that she did14 not actually know Hajan the deceased.15

23. PW6 also disagreed when it was further put to her that17 among the four persons who were running towards the18 direction of the deceased's house, one of them was the19 deceased himself and that the deceased was armed with20 a parang and running towards his own house. She said21 that she did not know whether Aksan and Akserin were22 among the four persons because she does not know23 these two persons.24

24. In response to the question by the Court, PW6 said that26 she had good eyesight. To further cross-examination,27 PW6 said that she never had her eyes sight checked, but28 [Criminal Trial No: S45-03 of 2007]

she never had to wear glasses when she watched1

television.2

The evidence of PW44

25. It is the testimony of PW4 Faidah Binte Hajan that on that5 fatal Saturday afternoon at around 2.00 p.m. the6 deceased was sitting at the bridge outside the house. The7 deceased got up and ran into the house when he saw four8 persons armed with parangs running towards the house.9 PW4 named the four persons as Ejah, Sangkaan, Adi and10 Wilson (collectively referred to the four assailants); and11 she identified the accused in the dock as Ejah.12 13

26. According to PW4, she was at that time in "ruang tamu"14 inside the house, the same was denoted "X" on the15 photographs marked P2(1).16

27. According to PW4, the four persons chased the deceased18 right up to "ke belakang dapur" where they slashed the19 deceased with their parangs. She described how and20 where each of the assailants attacked and slashed the21 deceased, The deceased was unarmed throughout the22 attack.23

28. The accused, said PW4, is the cousin of her mother.25 Sangkaan is her brother in law. Adi is the nephew of the26 accused while Wilson is the son in law of the accused.27 28

[Criminal Trial No: S45-03 of 2007]

29. According to PW4, the whole incident of attacking and1 slashing lasted less than ten minutes. After the attack the2 four persons ran towards the swamp.3

30. After they had left, PW 4 went down to the ground where5 the deceased had fallen and found that he was already6 dead.7

31. According to PW4, besides herself, her brothers PW59 Halid Bin Hajan and Amal Bin Zulhan Bin Jahan were also10 in the house at the time of the incident.11

32. PW4 disagreed when it was put to her in cross-13 examination that the deceased had been asking her sister14 to divorce Sangkaan and that the deceased had15

demanded for more "duit kahwin" from Sangkaan.16

33. PW4 replied that she had no knowledge that the18 deceased together with twenty persons armed with19 weapons had gone to the accused's house on the 5th day20

of Puasa month in 2006 to assault the accused's family21 members; that the deceased again went to the accused's22 house together with other persons armed with weapons to23 attack the accused's family members after the 5th day of24

Puasa month and again for the 3rd

time on 2nd

October25

2006; that in the morning of 21st

October 2006 the26

deceased and four persons armed with parang and27 "lembing" went to the accused's hosue again to assault28 and attack the accused's family members during which29 [Criminal Trial No: S45-03 of 2007]

the accused's mother suffered injury, that thereafter the1 deceased went to the accused's house armed with2

weapon trying to kill Sangkaan's wife.3

34. PW4 disagreed when it was put to her that the accused5 and three other persons could not have slashed the6 deceased at the back kitchen outside the house because7 there was no blood stain at that place.8

35. PW14 further disagreed when it was put to her that the10 accused was alone on his way to purchase water and11 while he was walking her house, the deceased, Halid Bin12 Hajan, Aksan and Askerin attacked him with weapon.13 14

The evidence of PW515

36. The testimony of PW5 Halid Bin Hajan is rather similar to16 that of PW4 in terms of where the deceased was before17 the assailants arrived and chased him. However,18 according to PW5, the deceased did not manage to run19 into the house, instead he ran to the side of the house by20 which he meant the area where they used for washing.21 22

37. On the sketch plan of the house i.e. exhibit P7, PW 523 indicated the side of the house and the kitchen as "D" and24 "J" respectively. From the place where he marked "J" he25 saw the deceased who was unarmed being attacked and26 slashed by the accused and his friends and then they27 threw him to the ground and left the scene. Thereafter28 PW 5, PW4 and another sibling Julhan went down to the29 [Criminal Trial No: S45-03 of 2007]

ground where the deceased had been thrown and they1 found that he was already dead. They carried his body up2 to the house and placed it on the side of the house which3 was shown in the photograph marked P2(3). This was4 also the place where the deceased was attached and5 slashed.6

38. PW5 disagreed when it was put to him that at the material8 time the deceased together with Aksan and Askerin9 armed with weapons attacked the accused who was10 walking alone on the bridge and that they chased him11 towards the direction of PW5's house and that these were12 the people whom PW5 saw running on the bridge.13

39. PW5 testified that there was no obstruction for him to see15 the Accused slashing the deceased. The distance16 between him and the accused was 23 feet away from "J"17 where he was hiding.18

40. It can be seen from the photograph P2(1) and the sketch20 plan that "belakang dapur" (referred to by PW4) and "the21 side of the house used for washing" referred to by PW5, is22 in fact a verandah at the back of the house and that23 underneath the house is muddy ground.24

The evidence of PW726

41. PW7 Armal bin Muhajirin gave evidence that he was in his27 house on 21st

October 2006 at about 2.30 p.m. when he28

heard commotion, so he went to the window from where29 [Criminal Trial No: S45-03 of 2007]

he could see four persons armed with parangs running on1 the ground underneath a house towards the swamp. He2 recognized one of them as Sangkaan whom he used to3 meet on the bridge while Sangkaan went to his father in4 law's house i.e. the deceased. The distance between the5 deceased's house and PW7's house is about 40 feet.6 7

The evidence of PW88

42. PW8 Julaspi Bin Alaha is the first cousin of the deceased.9 His testimony is that he went to lodge a police report after10 being informed by the deceased's sister in law Hilda of the11 death of the deceased.12

The Evidence of PW114

43. The evidence of PW1 Lance Corporal Azhar Bin Khalid is15 that on 21st

October 2006 at about 3.30 p.m. he received16

the report from Julaspi Bin Araha concerning a stabbing17 incident that happened in Kampung Muhibbah, Mile 2 1/2,18 Sandakan and recorded the same in the police report19 tendered as exhibit P1.20

The Evidence of PW322

44. The testimony of PW3 ASP Peter Matinjal is that on 21st 23

October 2006 at about 7.30 a.m. he led a police party to24 an unnumbered house at 2 � mile, Jlan Muhibah,25

Sandakan to arrest a suspect named Ejah, whom he26 identified as the accused in the dock. He also seized a27 parang which he identified as P5.28

[Criminal Trial No: S45-03 of 2007]

The evidence of PW101

45. PW10 Chief Inspector Yusof Bin Osman is the2 investigating officer of the case. It is his testimony that at3 the scene of crime he saw the deceased's body which4 was covered with mud and there were cut wounds over5 the hands and over the front as well as the back of the6 body. He observed some blood stains on the ground7 underneath the house as well as slight blood stains on the8 verandah. At the scene he met Faidah Binte Hajan and9 Halid Bin Hajan. He also directed PW2 Corporal Zulfikar10 Bin Ali to take photographs of the scene and the11 deceased; the same had been tendered as exhibits P2 (1-12 16). He drew a sketch plan i.e. exhibit P7. On 27th 13

October 2006, he attended the post-mortem of the14 deceased conducted by PW9 and directed Corporal15 Zulfikar Bin Ali to take photographs; the same were16 tendered as exhibits P3.17

46. According to PW10, the investigation revealed that there19 were four suspects in the case, namely, Ejah (whom he20 identified as the accused in the dock), Sangkaan bin Hatip21 Jaafr, Saudi bin Hatip Jaafar and Wilson, the later three22 are still at large.23

47. According to PW10, the investigation also reveals:25 "Sebelum kajadian bunuh tersebut berlaki si mati telah26 pergi mencari menantunya Sangkaan bin Hatip Jaafar27 untuk menyelesaikan masalah pergaduhan menantu dan28 anaknya. Tetapi tidak berjumpa dengan menantunya29 [Criminal Trial No: S45-03 of 2007]

sebaliknya mangsa telah bertemu dengan mak Sangkaan.1 Maka terjadi pergaduhan antara mereka dan mangsa2 pada petangnya suspek Ejah dan tiga suspek lain telah3 pergi membunuh mangsa". [See Q:676].4

Maximum Evaluation6

48. Learned counsel for the Accused submits that from the7 evidence led by the prosecution, it can be seen that PW48 evidence is "irreconcilable, ambivalent or negational of9 herself evidence and with other witnesses evidence, the10 same happened in PW5 and PW10 evidence". As such,11 their evidence should be totally disregarded, citing PP V12 Nazri Mohd Jufri & Anor [2007] 10 CLJ 590 as support.13 14

49. It is next contended that based on the evidence before the15 Court, PW4 and PW5 were not the eye witnesses of16 "slashing and attack on the deceased".17

50. Learned counsel painstakingly submits on the19 discrepancies and inconsistencies allegedly exists in the20 evidence of PW4, PW5 and PW10. I do not propose to21 deal with all of them, especially those the determination of22 which will have very little bearing on the outcome of the23 decision in one way or the other. I will only deal with the24 more pertinent issues raised.25

Identity of the assailants27

51. In her testimony PW4 named the assailants as Ejah,28 Sangkaan, Adi and Wilson. She did not lodge the police29 [Criminal Trial No: S45-03 of 2007]

report and she called her uncle PW8 after the incident. In1 the police report i.e. P1 lodged by PW8, it only mentioned2 three suspects and the accused was not among them.3 4

52. Learned counsel for the Accused seems to be saying that5 PW 8 received his information from PW4 and since he did6 not mention Ejah as assailants in his police report, it has7 rendered PW4's evidence as to what she had witnessed8 of the incident a suspect.9

53. What is the significance of omission of the Accused's11 name in the police report? Does it mean that he was not12 the assailants? And that PW4 did not eye-witness the13 attack? In answering this question I can do no better than14 to make my own language the observation of the Federal15 Court in the case of Herchun Singh & Ors v Public16 Prosecutor [1969] 2 MLJ 209:17

"As regard omission in the first information report, we18 would endorse Sohoni's commentary on section 154 of19 the Indian Criminal Procedure Code (16th

Edition, Vol.20

1, page 750), which is similar to section 107 of our21 Code, as follows:22

"It is a mistake to believe that a person cannot be23 accused unless his name appears in the first24

information report. The provision of the Code lay25 down no such stipulation. All that is required for26 purpose of this section is that there should be clear,27 definite information about the commission of a28

cognizable offence to set the investigation29

[Criminal Trial No: S45-03 of 2007]

machinery in motion. Further, the information1

required need not contain the circumstances of the2 commission of the offence, nor the names of the3

offenders or the witnesses, for the main purpose of4 the investigation is to ascertain these matters....The5 first information report is not an Encyclopedia. It is6 not the beginning and ending of every case. It is7 only a complaint to set the affairs of law and order in8 motion. It is only at the investigation stage that all9 the details can be gathered and filled up. But it10 cannot be said that omission in the first information11 report would always be of no significance. The12

report is not substantive evidence and omission in it13 will not ipso factor lead to the case being thrown out.14 But it is a piece of corroborative evidence; omission15 in it will, other things being the same, deprive the16 prosecution of the most valuable corroboration and17 thereby make the story suspicious.18

When a first information report contains an omission19 as to an important fact relied upon by the20

prosecution, the omission is important and in the21 absence of any other evidence, the Court may in a22 given case refuse to consider the evidence of the23 informant on that fact because of such omission. For24 a correct appraisal of the effect of omission as25 contradicting the informant it is essential to keep in26 view the circumstances in which the report was27

lodged. For instance, an omission in a report28

hurriedly lodged under the press of event should not29 [Criminal Trial No: S45-03 of 2007]

have the same significance as one in a report lodged1 after cool calculation."2

54. In my judgement, the omission of the Accused's name the4 report i.e. P1 does not render PW4's evidence a suspect. I5 say so for the following reasons. Firstly, P1 was not6 personally lodged by PW4. She merely relayed the7 incident to PW8 immediately after the incident and then8 PW8 went to lodge the report. Secondly, her oral9 evidence that there were four assailants among whom10 was Sangkaan was corroborated by PW6 who recognized11 Sangkaan as among the four armed persons running12 towards the deceased who was sitting on the bridge in13 front of his house. It was also corroborated by PW7 who14 identified Sangkaan as among the four persons running15 under the house towards the swamp.16

55. In any event, the presence of the accused on the bridge18 prior to the attack was never challenged. In fact, it is the19 defence case that the accused was walking on the bridge20 at the material time.21

Where was PW4 when the deceased was being chased and23 attacked24

56. Learned counsel for the accused further submits that PW425 kept changing her evidence regarding her whereabouts in26 the house when the incident happened. At first she said27 she was in the house when the incident happened. Next,28 she said she was outside the house. When she saw29 [Criminal Trial No: S45-03 of 2007]

people running, she was outside the house in the guest1 room, later she said the guest room was inside the house.2 The photograph P2(1) and (2) shows that the guest room3 was inside the house, and not outside.4

57. It is submitted that PW4 testified that from the neutral6 evidence i.e. the photograph P2(1) and (2), PW4 could not7 have seen what was happening outside when she was8 sitting inside the house. Therefore, submits learned9 counsel, PW4 changed her story by saying that she was10 outside the house.11

58. It is further submitted that PW4 indicated to the Court her13 position at the time she witnessed the slashing and attack14 with a "X" on P2(5). (See line 15 of page 52 of notes of15 proceedings). From the neutral evidence in P2 (3) and16 (5), the place where PW4 said she witnessed the slashing17 and attack is actually an empty space above the sea.18 PW5 agreed in cross-examination that the place marked19 with "X" in P2 (5) is an empty space above the sea.20 Learned counsel submits that PW4 had lied when she21 said that she witnessed the incident. This is because she22 could not have been at the placed marked "X" because23 "no one can sit or stand on empty space above the sea" to24 witness the slashing and attack.25

59. It must be noted that the defence never put to PW4 that27 she was not at home at the material time. The defence28 only challenged whether she had actually witnessed the29 [Criminal Trial No: S45-03 of 2007]

attack incident. In the absence of challenge that PW41 was not present in the house, I believe and accept the2 evidence of PW4 that she had eye-witnessed the attack3 incident.4

60. Regardless whether PW4 had actually seen what6 happened outside the house while she was sitting in the7 guest room, she did see the deceased being chased by8 the assailants into the house and the deceased stopped at9 "di belakang dapur"10

61. As for the place marked "X" by PW4, the photograph i.e.12 exhibit P2(5) clearly shows that "X" is the extended part of13 the house structure which was not captured by in the14 picture. There is no substance in the contention that the15 place marked "X" is open space above the sea.16

Did the deceased fall to the ground or jump to the ground?18 Or, was he thrown to the ground?.19

62. Learned counsel for the Accused also made an issue over20 PW4's changing evidence where one moment she said21 the deceased had fallen to the ground as he became22 unconscious after being attacked, but later she said that23 her father was being thrown onto the ground by the24 assailants. Yet, PW10, the investigation officer said that25 PW4 and PW5 told him that the deceased had jumped off26 the verandah to escape the assailants.27

[Criminal Trial No: S45-03 of 2007]

63. To my mind, the various versions as to whether the1 deceased had fallen onto the ground after being attacked2 or he was thrown over to the ground by the assailants or3 he jumped to the ground to escape the assailants does4 not and has not changed this material fact: that PW4 and5 PW5 had eye-witnessed the deceased being attacked by6 the four assailants and that the deceased ended up on the7 ground beneath the house after he was being attacked.8 9

The slashing of the deceased10

64. The next issue raised in the defence submission is the11 variance between the evidence of PW4 and PW5 as to12 how the deceased was being slashed. It is submitted that13 PW4 and PW5 give their evidence on how the deceased14 was being chopped without qualification that they might15 not be able to remember exactly what had actually16 happened. In other words, they had no problem in17 recollecting how the deceased was being slashed. This18 being the case, they should be able to tell the exact same19 version on how the deceased was being slashed. This20 raises question on whether PW4 and PW5 had actually21 witnessed the incident. The doubt looms larger when22 PW10 gave evidence that the deceased's head and back23 had been slashed before he jumped onto the ground.24 25

65. I am of the view that it is important to appreciate that the26 incident happened very fast and according to PW4, it was27 over in less ten minutes from the chasing into the house28 and fleeing of the assailants. Considering the suddenness29 [Criminal Trial No: S45-03 of 2007]

and the speed of the attack, the number of assailants1 involved and all of them were attacking the deceased at2 the same time, and PW4 and PW5 were witnessing the3 incident from different angles. It is reasonable to expect4 some differences in their versions of what they had5 witnessed. I may add that if PW4 and PW5 could give the6 "exact same version" on who directed the blow and where7 the blow were directed at, it only shows that they must8 have tailored their story to fit perfectly. It is fair to say that9 no two persons can give the same set of view when they10 are looking at the same incident from different angle and11 position under a chaotic and confusing circumstance,12 such variance are acceptable and will not affect the13 credibility of the witnesses unless the discrepancies are14 so material and highly improbable, which is not in this15 case.16

The position of PW5 at the time of the attack incident18

66. Learned counsel for the accused submits that PW5 could19 not have seen the incident of how the deceased was20 being attacked given his evidence that he was hiding in21 the kitchen marked J in the sketch plan i.e. P7. The22 neutral evidence from the photograph in P2 (5) and the P723 shows that PW5 could not have seen the verandah from24 the place "J" where he was hiding.25

67. I have no reason to disbelieve PW5 that he could see the27 incident on the verandah from the kitchen where he was28 hiding. PW5 was able to identify all the assailants and29 [Criminal Trial No: S45-03 of 2007]

what were the acts committed by the Accused in the1 whole episode of attack, like slashing the deceased and2 where he directed the blows at the deceased. Besides,3 exhibits P2(5) and P7 merely show the layout and they4 offer little help in telling whether PW5 was able to see the5 verandah from the Kitchen marked J where he was hiding.6 7

Was there a partition at the side of the house?8

68. The next issue raised by the defence is whether there was9 a partition at the side of the house to the verandah.10 Learned counsel submits that since PW10 had drawn a11 line at that place on exhibit P7 and compared to the12 second door inside the house where he left a gap to13 indicate an open space, the line drawn would mean that14 there was a partition otherwise PW10 would have left it15 blank. However, PW10 gave evidence that there was no16 partition at that place and this evidence is irreconcilable17 with P7 which he prepared at the scene of the incident.18 19

69. PW10 had explained in cross-examination why he drew a20 line across between A and D: "Garisan ini adalah21 menunjukkan ada dua verandah, iaitu verandah 1 yang22 terletak di hadapan dan verandah 2 yang terletak di23 sebelah kanan rumah kalau dilihat dari depan". He24 disagreed when it was put to him that the line drawn25 between A and D represents a partition between A and D.26 27

[Criminal Trial No: S45-03 of 2007]

70. I have no reason not to accept PW10's explanation on1 why he drew a line between A and D on P7 considering2 that he was the investigating officer and had personally3 visited the scene. There is also no reason why he should4 say there was no partition if in fact there was one.5 6

Whether the attack incident happened at the verandah?7

71. Learned counsel submits that the sketch plan i.e. P7 that8 PW10 prepared on the day of the incident shows that9 there was no blood stain in the house or verandah. PW1010 testified in examination in chief and in re-examination that11 he saw a number of faint blood stains on the verandah.12 However, he agreed in cross-examination that there was13 no blood stain on the verandah. (See Q697).14

72. Learned counsel further submits that the verandah is not16 the scene of the incident as the things on the verandah17 after the incident was not seen scattered around. If four18 persons had chased after and inflicted fifteen chop and19 slash wounds on the deceased, the things on the20 verandah would have been scattered and the place would21 have been tainted with blood stain.22

73. Further, submits learned counsel, PW9 Dr Jessie Hiu had24 testified in cross-examination that massive blood would25 have spurted out when the deceased was being slashed26 and chopped.27

[Criminal Trial No: S45-03 of 2007]

74. PW10 had explained that there was no massive blood1 stain on the verandah because PW4 and PW5 told him2 that the deceased jumped onto the ground after being3 slashed and chopped on the head and back. This4

evidence, submits learned counsel, is hearsay evidence5 and inadmissible. Moreover, PW4 and PW 5's version is6 that the deceased was thrown onto the ground. Further,7 PW9 testified that massive blood would have spurted from8 the head onto the floor even if the deceased's head and9 back had sustained injuries before he jumped onto the10 ground.11

75. Learned counsel submits that all these facts and13 circumstances show that PW4, PW5 and PW10 are not14 truthful witness. PW4 and PW5 are not eye witnesses,15 and PW10 tried to make up story to cover PW4 and PW5.16 17

76. It is next submitted that the stories of PW4, PW5 and18 PW10 are irreconcilable with the neutral evidence thereby19 casting serious doubt and creating a gap in the20 prosecution's case.21

77. I am mindful that there are discrepancies between the23 evidence of PW4, PW5 and PW10 as regards the place24 where the four assailants actually attacked the deceased25 � was it on the verandah at the back of the house and26 then the four assailants threw the deceased over the27 verandah to the grounds below the house according to28 PW4 and PW5? Or did the deceased jump off to the29 [Criminal Trial No: S45-03 of 2007]

ground to escape the assailants as told to PW10 by PW41 and PW5? I am mindful also that there were no massive2 blood stains on the verandah where PW4 and PW5 said3 the deceased was being slashed by the assailants.4 5

78. Notwithstanding that, I have no doubt that PW4 and PW56 had eye-witnessed the attack on the deceased by the four7 assailants. Both PW4 and PW5 could identify the four8 assailants as the accused, Adi, Wilson and Sangkaan.9 PW4 and PW5l knew Sangkaan who was their brother in10 law having married their sister.11

79. I have found PW6 and PW 7 to be neutral witnesses. The13 defence tried to cast doubt on the credibility of PW6 by14 making an issue on the discrepancy in the evidence of15 PW6 and PW5 regarding whether the deceased was16

alone at the bridge (PW6's version) or he was talking to17 his neighbor (PW5's version). To my mind, this is a minor18 discrepancy which has not shaken the reliability of her19 evidence that the deceased was sitting in the bridge20 outside his house.21

80. The combination of the evidence adduced through PW4,23 PW5, PW6 and PW7 shows an unbroken chain of event24 which began with the four assailants running towards the25 deceased who was sitting at the bridge in front of the26 house and who tried to escape from the approaching27 assailants by running back into the house to the verandah28 at the back of the house. Regardless of whether he was29 [Criminal Trial No: S45-03 of 2007]

attacked on the verandah or underneath the house (where1 substantial blood stains were found in P2(7)(8)), the2 evidence amply shows that the attack of the four assailant3 culminated in the death of the deceased and the four4 assailants were seen by PW7 running towards the5

swamp.6

81. From the unbroken chain of event described above, I am8 satisfied that the prosecution has proven that the death of9 the deceased was caused by the four assailants.10 11

Was there commons intention among the the accused and12 three others still at large to commit the act of murder?13

82. In the case of Lee Kwai Heong & Ampr v Public14 Prosecutor [2006] 2 MLJ 528 at p. 542, Richard15

Malanjum JCA (as His Lordship then was) had this to say16 about proof of common intention:17

i. "The crucial ingredient to prove common intention is the18 existence of pre-concert or pre-planning which "may19 develop on the spot or during the course of commission20 of the offence" but the crucial test is that such plan21 must precede the act constituting an offence. In22 Sabarudin bin Non & Ors v Public Prosecutor [2005] 423 MLJ 37, this court dealt with proof of common intention24 succinctly at p 50:25

To deal with the criminal liability of the second and26 third accused, it is necessary first to quote from two27 recent authorities to remind ourselves of the law28 governing s 34. In Suresh v State of Uttar Pradesh29 [Criminal Trial No: S45-03 of 2007]

AIR 2001 SC 1344, Sethi J speaking for himself and1 Agrawai J said:2

Section 34 of the Indian Penal Code recognizes3

the principle of vicarious liability in the criminal4 jurisprudence. It makes a person liable for action5 of an offence not committed by him but by another6 person with whom he shared the common7

intention. It is a rule of evidence and does not8 create a substantive offence. The section gives9

statutory recognition to the common sense10

principle that if more than two persons11

intentionally do a thing jointly, it is just the same12 as if each of them had done it individually. There13 is no gain saying that a common intention pre-14

supposes prior concert, which requires a pre-15

arranged plan of the accused participating in an16 offence. Such a pre-concert or per-planning may17 develop on the spot or during the course of18

commission of the offence but the crucial test is19 that such plan must precede the act constituting20 an offence. Common intention can be formed21

previously or in the course of occurrence and on a22 spur of moment. The existence of a common23

intention is a question of fact in each case to be24 proved mainly as a matter of inference from the25 circumstances of the case."26

83. In my judgement, the prosecution has adduced ample28 credible evidence which shows the accused together with29 [Criminal Trial No: S45-03 of 2007]

three other still at large, were armed with parang when1 they were running towards the deceased who was sitting2 outside his house, and chasing him into the back of the3 deceased's house where they used their parang to attack4 the deceased who was unarmed. Based on the above5 evidence of concerted attack, it is my finding of fact that6 the accused and the three others who are still at large7 shared a common intention to attack deceased and they8 had pre-planned this attack prior to the commission of the9 offence.10

84. Bearing in mind that Section 34 recognises the principle of12 vicarious liability in criminal liability, it follows that it is13 immaterial for the prosecution to establish who among the14 four assailants inflicted which particular injuries. This is15 because the acts of one of the four assailants are16 attributed to be the act of the others who shared the17 common intention.18

Third Ingredient: The Mens rea element20

85. Did the accused and the three others who are still at large21 commit the act with the intention of causing bodily injury22 and the bodily injury intended to be inflicted is sufficient in23 the ordinary course of nature to cause death; or did they24 do the act with the intention of causing such bodily injury25 as they know to be likely to cause death?26

86. It has been said by a higher court in Hashim bin Mat Isa28 v PP [1950] MLJ 94 that a mere killing, without proof of29 [Criminal Trial No: S45-03 of 2007]

intention or knowledge as required by the law cannot be1 murder. In other words, it is not sufficient for the2 prosecution to prove the killing; the prosecution must also3 prove intention to kill or knowledge that the bodily injury4 would result in death.5

87. Intention being a state of mind is difficult to prove by direct7 evidence, but it can be inferred from proved facts and8 surrounding circumstances. What an accused intends9 can be and should be judged by what he said and acted10 and did immediately before and after the act complained11 of.12

88. The graphic photographs i.e. exhibits P2(11) to (15) not14 only show the brutality of the concerted attack, they also15 manifest the clear intention to kill judging from the number16 and severity of the wound and the part of the deceased17 body where the blows were directed at.18

89. The external examination of the deceased by PW9 in the20 post-mortem reveals chop wounds being inflicted on the21 head, the body, right forearm and left arm which almost22 amputate the left arm. Chop wounds, explained by PW9,23 are cuts which involve soft tissue and bone. Internal24 examination reveals cuts to the ribs and skull.25 26

90. Judging from the fifteen wounds executed with such27 vehemence by the accused and three others still at large,28 there is not a shadow of doubt that the accused and the29 [Criminal Trial No: S45-03 of 2007]

three others not only had the intention to kill the1 deceased, they also knew that the wounds they intended2 to inflict was likely to cause death or was sufficient in the3 ordinary course of nature to cause death.4

Conclusion at the case for the prosecution6

91. At the close of the prosecution's case, I was satisfied that7 the prosecution has adduced credible evidence in respect8 of each ingredient of the charge. I therefore ruled that the9 prosecution has made out a prima facie case and called10 upon the accused to enter his defence.11

The Defence13

92. The Accused (DW1) is a grass cutter by occupation. He14 gave evidence that there was no conflict between him and15 the deceased until the deceased demanded that her16 daughter Juraidah to divorce her husband Sangkaan, who17 was the accused's brother. The deceased's daughter and18 Sangkaan refused to divorce much to the deceased's19 anger to the extent that he came to the accused's parents'20 house on four occasions threatening to kill Sangkaan.21 22

93. In the first occasion on the date he could not remember,23 the deceased came with a group armed with parangs,24 samurai swords and iron rods. The deceased threatened25 to kill the rest of the accused's family. They attacked them26 but no one was injured because the accused's brother's27 family did not fight back and they advised the deceased28 and his gang to return to their house. The Accused said29 [Criminal Trial No: S45-03 of 2007]

the first incident made his family trembled in fear all the1 time. They had sought the help of three ketua kampong to2 settle the matter amicably but the deceased refused to3 settle the conflict.4

94. Two weeks after the first incident, the deceased came to6 the accused's parent's house again with twenty people7 including his son, Halid Bin Hajan and Gajil. All were8 armed and they threatened to kill the accused's family9 members. However, nothing happened because the main10 door of the house was closed and the accused's family11 members did not respond. The accused was not present12 in the parents' house on the second occasion but he could13 see from his house. After the second incident the14 accused's father, DW4 went to make a police report.15 16

95. The accused was not present on the third occasion when17 the deceased and his people came to the house of the18 accused's parents.19

96. The fourth incident occurred on 21st September 2006 at21

6.30 a.m. At that time the accused was about to go to22 work when he heard his mother screamed. Upon hearing23 the scream of his mother, the accused grabbed a piece of24 wood and rushed to the parents' house where he saw the25 deceased together with five other persons who were all26 armed with parangs and iron rods. He saw the deceased27 was slashing his mother, his niece and nephew and so he28 used the wood to hit the deceased. The deceased and29 [Criminal Trial No: S45-03 of 2007]

his people turned to attack him and he (the accused) fell1 to the ground underneath the bridge. He could not get up2 and moved due to pain. His father was present at that3 time. According to the accused, the deceased threatened4 to kill the accused's family.5

97. On the same morning at 7.00 a.m. the deceased went to7 the accused's brother in law's house intending to kill his8 daughter Juraidah. He did not manage to kill her because9 Juraidah shut the main door. The accused said he clearly10 witnessed this incident from his house which was about11 55 feet away from his brother's house. He heard Juraidah12 screaming and pleading with her father not to kill her and13 the deceased saying, "This conflict all because of you.14 You should be dead."15

98. On the same afternoon at 2.00 p.m. the accused went out17 alone to pay the water debt. He brought along a parang18 because he was afraid of being attacked by the deceased.19 While on his way to pay the water debt, the deceased who20 was sitting on the bridge suddenly slashed him with a21 parang. There were two other persons, namely, Apson22 and Asrin who also joined in to attack him.23

99. The accused said he slashed the deceased on his head25 when the Deceased went down to the ground. Apson and26 Asrin tried to slash his head when he was on the ground27 with the deceased but he managed to avert the attack by28 moving backward. The Accused said he was out of his29 [Criminal Trial No: S45-03 of 2007]

mind and could not think straight at that particular time1 when he slashed the deceased.2

100.The Accused said that he fled and hid at Mile 1 � after the4 attack in fear of revenge by the deceased's family5 members. He then called the police to surrender himself.6 7

101.According to the Accused, he personally heard the8 deceased threatening to kill the rest of the accused's9 family on all the first and fourth occasions.10

102.The accused disagreed when it was put to him that the12 deceased and his family members went to his parents'13 house in peace to discuss the marital problem of14 Sangkaan and Junaidah and they were not armed with15 weapons; that on the fourth occasion there was a heated16 argument between his parents and the deceased when17 the accused's parents did not agree to a divorce between18 Sangkaan and Junaidah. During the argument the19

deceased accidently took a knife which was inside the20 house and that DW3 sustained a cut wound on her palm21 and then fell to the ground when she tried to grab the knife22 from the deceased.23

103.The Accused also disagreed when it was further put to25 him that after the deceased and his family members26 returned to their houses, the Accused and his three27 friends were closely observing the movement of the28 deceased and when they saw that he was sitting on the29 [Criminal Trial No: S45-03 of 2007]

bridge in front of his house unarmed at 2.30 p.m. the1 accused and the three friends armed with parang charged2 towards the deceased.3

104.The accused denied that he had the intention to kill the5 deceased. He claimed that he was "out of his mind" and6 he was not aware that he had slashed the deceased's7 head, back and his left arm.8

105.In re-examination, he explained that "out of his mind"10 means he could not think straight after he received a11 anonymous phone call saying that the deceased had12 killed his parents and the rest of his family.13

106.DW3 Indah Bnti Jailani, 60 years old, is the mother of the15 Accused. Her testimony is that the conflict between her16 and her family with the deceased and his family started17 when the deceased wanted his daughter to divorce18 Sangkaan. The deceased had come to her house on four19 occasions threatening to kill her family members. Each20 time he came with ten people armed with weapons. On21 the fourth occasions the deceased injured her, her22 granddaughter and grandson. The deceased pulled her23 right hand and hair and threw her into the ground after24 slashing her hand and toe with his parang. She became25 unconscious after she was thrown onto the ground26 beneath the bridge. She claimed that the deceased27 injured the granddaughter's foot and the head of her28 grandson.29

[Criminal Trial No: S45-03 of 2007]

107.DW3 disagreed when it was put to her that the deceased2 and his family members came to her house to discuss the3 marital problem of Sangkaan and Hanaidah and that he4 asked DW3 to tell Sangkaan to divorce his wife since5 there were problems between them. She further6

disagreed that the deceased took a parang or knife which7 was inside her house when DW3 quarreled with him and8 that he did not slash her. Instead she fell onto the ground9 while trying to grab the parang from the deceased.10 11

108.DW4 Iman Jaafar Bin Sabaani, 80 years old, is the father12 of the accused. His testimony is more or less similar to13 that of DW3 regarding the four occasions when the14 deceased came to his house. He agreed that he was not15 present in the house when DW3 was allegedly stabbed.16 He explained in re-examination that he was at home when17 the deceased and his friends arrived at his house on the18 fourth occasion, and that he straight away went to the19 police station to lodge police report.20

109.DW2 Sergeant Poumin @Valentine Bin Banieo confirmed22 that DW3 and DW4 had complained to him that the23 deceased threatened to kill the rest of their family24 members and that he had issued a warning letter i.e. D125 to the deceased at the request of DW4.26

[Criminal Trial No: S45-03 of 2007]

Court's Finale Analysis1

110.The crux of the defence of the accused is that he was2 under sudden and grave provocation and/or alternative,3 he was acting in self-defence. . Learned counsel for the4 Accused submits that the Accused was provoked into5 slashing the deceased based on the following evidence:6 7

111.The Accused was put in fear after four incidents of attack,8 assault and repeated threats of killing by the deceased9 and his family members.10

112.The Accused and his family members had hoped to settle12 the matter with the deceased whom they had regarded as13 a family member amicably. Hence when they reported the14 matter to the police they only asked the police for help to15 settle the matter amicably.16

113.The Accused was put in further fear after witnessing the18 deceased in wanting to kill even his own daughter.19 20

114.The Accused had become so confused and suffered loss21 of mind/control after receiving a telephone call that the22 deceased had killed the rest of his family members.23 24

115.Words and actions may under certain circumstances,25 cause grave and sudden provocation to an accused so as26 to bring his act within the first exception to section 300 of27 the Penal Code, thereby reducing murder to culpable28 homicide not amounting to murder. However, this29 [Criminal Trial No: S45-03 of 2007]

exception is subject to a proviso, namely, that the1 provocation is not sought or voluntarily provoked by the2 accused as an excuse for killing or doing harm.3

116.The test of provocation is whether a reasonable man,5 belonging to the same class of society as the accused,6 placed in the situation in which the accused was placed7 would be so provoked as to lose his self control. (see8 Nanawati v State of Maharashtra AIR [1962] SC 605,9 530 referred to in Lorensus Tukan v Public Prosecutor10 [1988] 1 MLJ 251]11

117.It is a question of fact whether there was sudden and13 grave provocation which had deprived any reasonable14 man, belonging to the same class of society as the15 accused, placed in the situation in which the accused was16 so placed, of his power of self control so that he was17 momentarily not the master of his own mind.18

118.In Che Omar bin Mohd Akhir v Public Prosecutor20 [2007] 4 MLJ 309, at p 315, it was argued on behalf of the21 appellant in that case that the crime of murder was22 mitigated by the fact that the act of killing was contributed23 by gradual and accumulated provocation and the act of24 killing was a reaction rather then an action done in the25 heat of moment. The Federal Court held that there is no26 such thing as gradual and accumulated provision that27 amounts to grave and sudden provocation. Devoid of its28 gravity and suddenness a gradual and accumulated29 [Criminal Trial No: S45-03 of 2007]

provocation is not sufficient to constitute a defence under1 Exception 1 to s 300 of the Penal Code.2

119.In the light of the Federal Court's decision in Che Omar4 bin Mohd Akhir's case, supra, it is now fairly established5 law that in order to bring the act of murder within the first6 exception to s 300 of the Penal Code, the act resulting in7 the death should be clearly traced to the influence of8 passion arising from that provocation and not after9 passion had cooled down by lapse of time.10

120. Coming back to the instant case. The prosecution does12 not seriously dispute that the deceased and his family13 members had gone to the accused's parent's house on a14 number of occasions, but their stand is that the deceased15 and his family members went in peace intending to settle16 the marital problem between Sangkaan and Junaidah.17 They were not armed as alleged by the Accused, DW318 and DW4. I am inclined to believe and accept the19 prosecution's version.20

121.In my judgement, if it were true that the deceased and his22 family members had come to accused's parents' house on23 four occasions in the manner described by the defence's24 witnesses, to wit, with a large group of people fully armed25 and breathing threats to kill the accused's family26 members, the injuries caused to the accused' mother i.e.27 DW3 would have been far more serious than just a finger28 injury as stated in the unchallenged evidence of PW10.29 [Criminal Trial No: S45-03 of 2007]

The accused would also not have escaped unhurt in the1 alleged attack on him by the deceased. Even though the2 accused had fallen to the ground as claimed by him, what3 was there to deter the deceased from pursuing him to the4 ground given if the deceased had intended to kill him as5 alleged by the Accused. According to the Accused, his6 farther DW4 was present when he was attacked and fell to7 the ground. But DW4 did not witness the alleged incident8 because it was DW4's testimony that he left for the police9 station when the deceased and his people arrived at his10 house armed with weapons.11

122.Although DW3's finger was injured and even assuming13 the deceased and his family members had attacked the14 accused's niece and nephew and the accused on 21st 15

October 2006 at 6.30 a.m. and threatened to kill Junaidah16 at 7.00 a.m. as alleged, which I do not think had17 happened, these incidents happened 7 � hours prior to18 the killing of the deceased at 2.30 p.m. In my opinion, any19 passion that was aroused by the provocation in such20 incidents would have cooled down by the lapse of 7 �21 hours. In other words, the accused has not shown that his22 mindless attack on the deceased can be clearly traced to23 the influence of passion arising from the alleged24 provocation occurred that morning.25

123.Accused in his testimony said that he was "out of his27 mind" after receiving an anonymous phone call at 11.0028 a.m. informing him that Hajah had killed the rest of his29 [Criminal Trial No: S45-03 of 2007]

family members. However, his subsequent conduct after1 the alleged phone call is inconsistent with a person who2 claimed to have gone "out of his mind" and "unable to3 think straight" from believing what the anonymous caller4 had told him.5

124.To my mind, if indeed there was such a call and that he7 believed it what he heard, he would have rushed home t8 find out what happened. There was no evidence what he9 did in the period after he received the alleged phone call10 and before he went out at 2.00 p.m. or to lodge a police11 report.12

125. At around 2.00 p.n. he claimed he went out to pay the14 water debt alone and he carried a parang in fear of being15 attacked by the deceased. I find there is no substance of16 truth in the above allegation. I believe and accept the17 evidence of PW6 and PW7 who in my view are neutral18 witnesses.19

126. PW6 testified that she saw four persons armed with21 parang running towards the deceased who was sitting22 alone outside the house. She recognized one of them as23 Sangkaan.24

127.PW6 was corroborated by PW7 who also saw four26 persons running under a house immediately after he27 heard the commotion and recognize one of them as28 Sangkaan.29

[Criminal Trial No: S45-03 of 2007]

128.PW4 and PW5 who witnessed the attack incident2 positively said that there were four assailants and they3 were the Accused, Sangkaan, Wilson and Adi.4

129.The combined evidence of PW6, PW7, PW4 and PW56 amply shows that the accused was not alone as claimed;7 he was together with, amongst others, Sangkaan.8

130.Learned counsel for the accused further submits that the10 Accused's act was done out of self defence. He slashed11 the Deceased thrice only after the Accused had slashed12 him out of self defence. He reacted so because he13 believed that the deceased really wanted to kill him after14 he had killed his parents so as to achieve his motive to kill15 the rest of his family members.16

131.What is private defence? When a man is attacked he is18 not bound to modulate his defence step by step,19 according to the attack, before there is reason to believe20 that attack is over. He is entitled to secure his victory, as21 long as the contest is continued. He is not obliged to22 retreat but may pursue his adversary till he finds himself23 out of danger. If in a conflict between them, he happens to24 kill, such killing is justifiable unless he exceeds the right of25 private defence. In which case, he may bring himself26 under exception 2 of Section 300 of the Penal Code27 thereby reducing murder to culpable homicide not28 amounting to murder.29

[Criminal Trial No: S45-03 of 2007]

132.I disbelieve that the accused acted out of self-defence. He2 claimed he was attacked by the deceased and two other3 persons, i.e. Askar and Aserin. If what he alleged were4 true, it means that the accused was outnumbered by three5 persons and one would expect him to be the person to6 sustain grave injuries, and not the deceased. Yet, the7 accused remained unscathed. However judging from the8 numerous grievous chop wounds inflicted on the9

deceased, it is more consistent with the version given by10 PW4 and P5, namely, the unarmed deceased was11

attacked by the four assailants, namely, the accused,12 Sangkaan, Wilson and Adi.13

133.At the close of the case of the prosecution, I had made a15 finding that the prosecution had established that the death16 of the deceased was caused by the act of the accused17 and three others who are still at large. I had also found18 that the accused and the three others who are still at large19 had attacked the deceased with premeditation to inflict20 such grievous wounds which in the natural course would21 cause death and that they had knowledge that the wounds22 they intended to inflict were likely in the ordinary course of23 nature to cause death.24

134.I am mindful that there is no burden on the defence to26 bring his case within any of the exceptions. The defence27 has only to create a reasonable doubt in my mind in order28 to succeed.29

[Criminal Trial No: S45-03 of 2007]

135.Having carefully evaluated the defences, I do not believe2 the accused's story. Upon review of all the evidence, it3 has not left in my mind a reasonable doubt that there was4 sudden and grave provocation, or that the accused was in5 the exercise in good faith his right of self defence.6 Accordingly, I convict the accused of the amended charge7 preferred against him. I sentence him to death by hanging.8 9

YA PUAN YEW JEN KIE12

Judicial Commissioner13

Dated: 6th

March 2009.14

For the Prosecution: DPP Amir Hamdzah bin Othman17 Attorney General Chambers18

Sabah19

For the Accused: Ms Wong Shang Len21

of Messrs Tan Pang Tsen & Co22

Sandakan.23

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