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Context

Public Prosecutor Vs Mohammad Bin Purung [2010] MYSSHC 114 (10 May 2010)

[CT No. T(45) 03 of 2008]

MALAYSIA

IN THE HIGH COURT IN SABAH AND SARAWAK AT TAWAU

CRIMINAL TRIAL NO: T(45) 03 of 2008

5

BETWEEN
PUBLIC PROSECUTOR …. COMPLAINANT AND
MOHAMMAD BIN PURUNG …. ACCUSED

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JUDGMENT

The accused was charged as follows:

That you, on the 16th October 2007, at about 7.30 pm at the Workers

15 Hostel, Block 600 at Ladang Teck Guan, Kalabakan, in the District of Tawau, in the State of Sabah, did commit murder by causing the death of one MULOKING @ MUNGKING BIN LEKLENG (M) 42 years and that you have thereby committed an offence punishable under Section 302 of the Penal Code (Act 574) of the Laws of Malaysia.

20 The accused is an undocumented illegal immigrant from a remote part of Sulawesi in Indonesia. He is a Bugis by ethnic origin. He does not speak the mainstream Bugis language but a provincial dialect of Bugis known as Bulu Kumba or Bugis Makassar. For this reason, the court registrar sought the assistance of the Indonesian Consulate to obtain a Bulu Kumba

25 interpreter. The accused had been in the country for only about six months when he was arrested and charged for the murder of Muloking @ Mungking Bin Lekleng (M) 42 years (Muloking).

Case for the prosecution

The prosecution called a total of nine witnesses. The accused is worker at

30 the Teck Guan plantation. However he is not directly employed by the

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owners of the plantation. He was employed by Muloking. Muloking, in turn, was the sub-contractor to one Aripin who had a contract with Teck Guan plantation to carry out grass cutting and weeding works on a block of the plantation known as Teck Guan Block 600. It was Aripin who gave

5 the first information report when he heard that something had happened to Muloking. There are no eye-witnesses to the actual killing but the sister of Muloking, one Jawaliah binti Lekleng (P.W. 5) was present when the accused allegedly chased Muloking with a parang. However, she ran and hid herself. When she returned, her brother had already been slashed and

10 was bleeding badly. Jawaliah was also in the employ of Muloking.

Predictably, she is the star witness for the prosecution. Her evidence is as follows.
Jawaliah told the court that she lived with Muloking who is her brother, his wife and her two sons in the workers’ quarters (Kongsi) of Teck Guan

15 Block 600. The accused person also shared the same Kongsi with them.

Jawaliah and her family are of Bugis origin. She testified in Bulu Kumba dialect. The accused had apparently come to look for work from Sulawesi six months earlier. His job was to cut the grass and spray pesticide. According to Jawaliah, Muloking took care of the accused’s basic

20 necessities such as shelter and food. She said that at about 7.30 p.m. on

16th of October 2007, she heard some people shouting at the verandah of the Kongsi. Her brother was playing cards on the verandah. A woman by the name of Yasinta and the accused were also there. According to the investigating officer, Yasinta is also an undocumented foreigner. Jawaliah

25 was cooking at that time when her brother ran into the living space of the Kongsi. She said Muloking then closed the door behind him. Muloking told her to run and save herself. The door of the Kongsi was then kicked

open by the accused who was armed with a parang. Jawaliah took her

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brother’s advice and decided to run. However, she said that the accused was swinging the parang at her brother and she was slightly cut on the stomach. She then hid herself behind some zinc sheets in the kitchen. Before she went to hide, she saw her brother receiving a slash wound on

5 the left arm. She did not know what happened after that. She only came out of hiding when a group people gathered behind the Kongsi. Her brother was found near the ravine with multiple slash wounds. He did not tell her about what the accused did to him. He only told her that the accused ran away towards the banana orchard. Muloking though slashed

10 many times was still alive. Unfortunately, the Kongsi workers took more than an hour to arrange transportation. By that time, his wife (Zaenab binti Pajumai, P.W. 8), who worked in another block of the plantation known as Teck Guan 200 had arrived. The plantation workers who had gathered there carried him to a Kobelco excavator and attempted to

15 transport him to a clinic but he died on the way. Zaenab told the court Muloking was then brought to the house of a family friend in Ladang Perihatin and from there to the house of a relative in Felda Tengah Satu. Although Zaenab did not witness the accused attacking Muloking, she said Muloking told her that one “Mohammed” was responsible for his

20 condition.

The other witnesses at the plantation did not witness the incident. The only witness who could have given crucial evidence is Yasinta. According to Jawaliah, she was present at the verandah at the time in question where the accused and Muloking were shouting. However,
25 according to the investigating officer, she had left the country and is untraceable. The investigating officer received information at 3.30 a.m. on 17th October 2007 that somebody had been killed and that the body was
at Felda Tengah Satu. When he reached the said house in Felda Tengah

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Satu, he checked the pulse of Muloking and concluded that he had already died earlier. He ordered photographs to be taken and sent the body for autopsy. The pathologist, Dr. Jessie Hiu determined that the cause of death was hypovolaemic shock to due loss of blood. She found that there

5 were 22 injuries on the body consisting of chops and incise wounds.

However she said that none of the internal organs were damaged.
The accused was arrested on 18th October 2007 by a police party led by Inspector Henry ak Laiyau. After the incident in question, the accused had ran away from the said Kongsi at Teck Guan 600. Two days later he

10 was spotted by one Sanang who is also a worker of the plantation. The accused had a parang with him. Sanang managed to persuade the accused to drop his parang and surrender to the police party that was combing the area looking for him. The police managed to retrieve the parang but apparently no blood stain swabs were taken from it.

15 Whether prima facie case?

The Murder Charges

The elements of the offence of murder are found in sections 299 and 300 of the Penal Code. Section 299 defines culpable homicide as follows:

Whoever causes death by doing an act with the intention of causing

20 death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Section 300 reads as follows:

Except in the cases hereinafter excepted, culpable homicide is murder-

25 (a) if the act by which the death is caused is done with the intention of causing death;

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(b) if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to

whom the harm is caused;

(c) if it is done with the intention of causing bodily injury to any

5 person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

(d) if the person committing the act knows that it is imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act

10 without any excuse for incurring the risk of causing death, or such injury as aforesaid.

The prosecution must adduce credible evidence in respect of the following elements to establish a conviction:
1. That Muloking had died of the slash wounds inflicted on him.

15 2. That the accused had inflicted the said wounds on Muloking.

3. That the act of the accused in inflicting the slash wounds came within the ambit of any one the four circumstances enumerated
in section 300(a) - (d), i.e:
(a) The accused intended to cause the death of Muloking by

20 inflicting the said slash wounds, or

(b) That the accused intended to inflict the said wounds which
he knew would be likely to cause death, or
(c) That the accused intended to inflict the said wounds which is sufficient in the ordinary course of nature to cause death,

25 or

(d) That the accused knew that his act in inflicting the slash wounds would in all probability cause death or is likely to
cause death and he had no justification for his act.

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The test of a prima facie is whether the prosecution had adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction (section 180 of the Criminal Procedure Code). In the case of PP v. Mohd. Radzi bin Abu Bakar [2006]

5 1 CLJ 457, the test of a prima facie case is stated as follows:

“..ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me? If the answer to that question is "Yes", then a prima facie case has been made out and the defence should be

10 called. If the answer is "No" then, a prima facie case has not been made out and the accused should be acquitted”.

I shall now consider whether the prosecution had adduced credible evidence that support the elements of the charge.
1. That Muloking had died of the slash wounds inflicted on him

15 After Muloking died on the way to the hospital, he was brought to a family friend’s house in Felda Tengah Satu. Inspector Henry ak Laiyau (P.W. 9) who reached the said house the following day, arranged for post mortem examination. The body of Muloking was identified by the wife, Zaenab (P.W. 8).

20 Dr. Jessie Hiu told the court that the she found 22 chop or incise wounds on the body of Muloking. The parang that was thrown away by the accused and recovered by the police was shown to Dr. Jessie Hiu. She confirmed that the weapon could cause the said injuries on the body of Muloking. In her post mortem report, she stated that the cause of death

25 was hypovolaemic shock which means Muloking died of shock as result of loss of blood. She said his internal organs were not injured. The following is the testimony of the Dr. Jessie on the injuries sustained by

Muloking:

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There were 22 injuries externally. [witness reads injuries as stated in

the report].

Q: What about internal injuries?

A: On the chest, chop wound [witness reads from page 4 under heading

5 “Chest”], no other injuries. The organs were pale.

......

Q: See page 5 on last page of report, on the cause of death, you stated

“Hypovolaemic shock”, can you explain?

A: Deceased loss excessive amount of blood as a result of multiple chop

10 wounds that he sustained, excessive loss of blood cause hypovolaemic shock and death.

To a question by counsel for accused, she said Muloking could have been saved if he was brought to hospital early. However, she qualified her answer by saying it would have been difficult to manage Muloking due to

15 multiple wounds. Although Dr. Jessie had said that Muloking could have been saved if brought to hospital earlier, the cause of death must still be attributed to the slash and cut wounds that were inflicted on Muloking. Counsel for accused suggested that Muloking died because of the delay in bringing him to hospital. I find this submission to be without basis in

20 law. The place of incident was a remote place in the Kalabakan area. It is the evidence of the wife and sister of Muloking that they were unable to arrange any vehicle to immediately send him to the hospital. The loss of blood which caused the death of Muloking is directly attributable to the 22 slash wounds inflicted on him. In any event, Exception 2 of the section

25 299 would defeat the argument of counsel. The provision reads as follows:

Explanation 2 - Where death is cause by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death

30 might have been prevented.

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In the premises, there is credible evidence that Muloking had died and that his death was caused by the slash or chop wounds that were inflicted on him by a parang.
2. That the accused had inflicted the said wounds on Muloking.

5 The crucial evidence to support this element comes from Jawaliah. She was cooking at the back of the Kongsi house when she heard an altercation. She said her brother, Muloking was playing cards at that time in the verandah. She could not say if her brother was playing with the accused. However, she confirmed the presence of another person at the

10 verandah; a woman from Indonesia by the name of Yasinta. After her brother ran into the living room of the Kongsi, the accused kicked open the door and chased him with a type of parang which is known as selasing. It is used by plantations workers to cut grass. Jawaliah saw the accused slashing her brother on his left arm. She did not witness anything else as

15 she went to hide behind a zinc door at the kitchen area. It was only sometime later that she ventured outside because a group of people had gathered near the ravine behind the Kongsi. She saw that her brother was bleeding with cuts on his face and body. He did not tell her who attacked him. As Jawaliah only witnessed the accused slashing the arm of her

20 brother at the beginning of the attack, the prosecution relied on circumstantial evidence to submit that the accused had caused the death of Muloking by inflicting the multiple slash wounds found on his body.

The law on the use of circumstantial evidence is well settled. The circumstantial evidence must not only point irresistibly, inexorably and
25 unerringly to the guilt of the accused but that other co-existing circumstances must exclude any other explanation (see Jayaraman & Ors v. PP [1982] 2 MLJ 273, Sunny Ang v PP case [1966] 2 MLJ 195). In
Bakshish Singh v The State of Punjab [1971] AIR 2016, a decision of the

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Indian Supreme Court which was quoted in the local case of Asia Pacific Parcel Tankers Pte Ltd v The Owners of the Ship or Vessel 'Normar Splendour' [1999] 6 MLJ 652, KS Hedge J summarized the conditions of
use of circumstantial evidence as follows:

5 In a case resting on circumstantial evidence, the circumstances put forward must be satisfactory proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Again those circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one

10 proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

15 In the instant case, it would be an understatement to say that the circumstantial evidence to implicate the accused in the death of the Muloking is strong. Jawaliah is an eye-witness to the initial attack on Muloking. It is true that she only saw the accused slashing the arm of Muloking. She did not witness the rest of the attack. However, the

20 circumstantial evidence unerringly and irresistibly points to the accused as being responsible for the 22 slash wounds that were found on Muloking. Jawaliah said that only the accused and Muloking had an altercation at the verandah. The only other person outside was a woman by the name of Yasinta. The prosecution could not produce her as a witness because she

25 had returned to her own country. In the premises, no adverse inference can be drawn against the non-production of this witness. Jawaliah did not implicate Yasinta in the quarrel between the accused and Muloking. The only person who chased Muloking inside the Kongsi was the accused. Jawaliah herself suffered a minor cut wound to her stomach as the accused

30 swung the parang at Muloking who was trying to escape the brutal attack.

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Her brother was slashed on the left arm. At that time she was only about four feet away and the lighting condition was good. She saw that it was the accused person. He lives in the same Kongsi as her family and therefore it is evidence of recognition. She also identified the parang

5 which was recovered by the police as the weapon that was used by the accused to attack her brother. Only a short time later, when she emerged from her hiding place, she found that a group of people had gathered near the ravine behind the Kongsi. Needless to say, Muloking was found there bleeding from the mortal wounds that had been inflicted on him. The

10 short interval from the time Jawaliah witnessed the accused slashing the hand of her brother and the time when she came out of hiding and found her brother by the ravine leads to the irresistible conclusion that it was the accused who was responsible for all the wounds inflicted on Muloking. Her brother also told her that the accused had ran away towards a banana

15 orchard. It is also the evidence of Sanang, another plantation resident that the accused was found two days later in a hungry state looking for food. It is apparent that the accused had run away after the incident in question. There would have been no reason him to disappear for two days if he was not involved in any transaction that resulted in the death of the Muloking.

20 In the premises, the circumstantial evidence irresistibly points to the accused as the sole assailant who caused the injuries that led to the death of Muloking.

Dying declaration

By the time Jawaliah emerged from her hiding place, the wife of

25 Muloking had arrived and Muloking told her that “Mohammad” had done him in. This is what she said:

Q: Bila kamu nampak keadaan suami kamu, ada tanya apa apa? A: Saya tanya kenapa begini.

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Q: Apa jawab suami kamu?

A: Dia kata si Mohammad yang lakukan begini.

All of them shared the same Kongsi. The accused’s name is Mohammad. There was no other “Mohammad” who lived with them. Zaenab said that

5 Muloking referred to the accused when he referred to “Mohammad” as the attacker. It is also the evidence of Jawaliah that the accused had attacked Muloking a very short time before he was found bleeding at the ravine. In the premises, the evidence of Zaenab that Muloking had identified the accused as his assailant is credible. As Muloking died a short time after

10 making the above statement to Zaenab, it is admissible as a dying declaration under section 32(1) of the Evidence Act 1950 which reads as follows:

32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.

15 (1) Statements, written or verbal, of relevant facts made by a person who is .......

(a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into

20 question.

(emphasis supplied)

Muloking had died a short time after having made the statement. Under section 32, a “statement” may be verbal or written. In the instant case, the statement is verbal. Muloking was crouching at the ravine near the river

25 in a bloodied state with cuts on his face, hands and body when found by a group of plantation workers which included Zaenab and Jawaliah. Zaenab had reached the scene before Jawaliah. She asked Muloking “kenapa

begini” which obviously refers to the palpable bleeding wounds on his

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body and face. The medical evidence is that these wounds caused Muloking’s death. In the premises, the answer of Muloking to his wife that the accused did that to him constitutes a statement as to the cause of his death, or as to any of the circumstances of the transaction which

5 resulted in his death. The evidence of Zaenab and Jawaliah is that Muloking was fully conscious and able to speak at that point in time. He subsequently died on the way to the hospital. The defence never challenged the evidence of these witnesses that Muloking was incoherent or was not capable of making the statement in question. As the

10 preconditions under section 32(1) have been satisfied, the statement made to Zaenab is admissible as a dying declaration.

In the premises, the circumstantial evidence, principally from the testimony of Jawaliah and the dying declaration of Muloking provide credible evidence that the accused had inflicted the slash wounds that

15 caused his death.

3. That the act of the accused in inflicting the slash wounds came within the ambit of any one the four circumstances enumerated in

section 300(a) - (d)

Section 300 (a) to (d) of the Penal Code prevents a bare killing from

20 amounting to murder unless the mental element of intention or knowledge is present (see Hashim Bin Mat Isa v Public Prosecutor [1950] MLJ 94). Intention and knowledge are a matter of inference. Jawaliah testified that the accused chased Muloking inside the Kongsi and slashed his left arm. The parang was exhibited in court. It is a two foot long machete used in

25 the plantation. Dr. Jessie Hiu testified that it could have been used to cause the chop wounds found on the body of Muloking. She also said that the wounds caused Muloking to bleed to death. Since there is credible

evidence that the accused had attacked Muloking with a two foot long

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sharp parang, an inference can be drawn that the accused had intended to cause the said bodily injuries in question. Dr. Jessie Hiu testified that the serious injuries had caused Muloking to bleed to death and that even if he had been brought to hospital earlier, it would have been difficult to save

5 him because of the multiple wounds. The act of the accused therefore falls within limb (c) of section 300 in that the accused intended to inflict the said wounds which are sufficient in the ordinary course of nature to cause death.

In the premises as the prosecution had tendered credible evidence in

10 respect of all the elements of the offence murder, I called for the defence of the accused.

The defence

The accused elected to give evidence on oath. He was the only witness on his behalf. His testimony was brief. He had come to Tawau looking for

15 work. He could not remember when he had come to the country. A friend of him assisted him to obtain employment with Muloking. Muloking was a sub-contractor in the Teck Guan plantation. The accused was employed for weeding at the plantation, i.e. to cut the grass, weeds and to spray weed killer. He was promised RM35 per acre for his weeding work. His

20 working hours were from 6.30 a.m. to 5.30 p.m. He had worked for Muloking for six months and had weeded 600 acres at the plantation. However, for the entire six-month period, he did not receive any pay. Muloking only provided shelter and food at the Kongsi for the accused. Only on one occasion the accused managed to borrow RM200 from

25 Muloking. On the evening in question, the accused approached Muloking to ask for his wages. Muloking was then at the verandah. He was playing cards with Yasinta. The accused did not join them. He asked for his

wages because he understood that the relatives of Muloking had received

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payment for their work. Muloking denied that he had paid his relatives. According to the accused, Muloking reacted angrily by attempting to throw a table at him. The accused also said that Muloking grabbed the parang from under the table. He admitted that the parang belonged to him

5 and that it was always kept at that place after he came back from work.

The accused managed to take the parang away from Muloking and slashed him three times. He then ran away into the jungle. He said he had no intention to slash Muloking and he did not bring the parang with him when he approached him. It was already there below the table at the

10 verandah.

1. Private Defence
Learned Counsel for accused raised two defences in his submission. The first defence is that the accused acted in private defence as he was attacked by Muloking who had taken the parang from below the table.

15 Private defence is a general exception to culpability under section 96 of the Penal Code. It extends to the protection of one’s own body and that of others. The accused said as follows in his testimony in support of this defence:

Q: Apa reaksi Muloking bila kamu minta gaji?

20 A: Muloking melempar meja ke belakang leher saya.

Q: Lepas itu apa yang terjadi?

A: Saya pegang meja, Si Muloking ambil parang dari tempat duduk dia.

Parang itu saya ambil dari dia dan tetak dia tiga kali dan saya lari lepas itu.

(emphasis supplied)

25 The accused only said that Muloking took out the parang from under the table. He did not say that Muloking attacked him. The accused did not say that the reason he grabbed the parang from Muloking was to prevent

Muloking from attacking him. He never explained why he had to slash

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Muloking in order to defend himself. In fact his own evidence defeats any argument that he was acting in private defence. This is because by his own account he had successfully snatched the parang away from Muloking. The accused, therefore, was in no danger of being attacked by

5 Muloking. In any event, Jawaliah testified that the accused chased Muloking inside the Kongsi with a parang. She herself was slightly slashed in that incident. The right of private defence is not a licence to attack someone. Section 99 of the Penal Code imposes four limitations to the right of private defence. The fourth limitation is as follows:

10 Fourth - The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

In the instant case, the accused went on the offensive in attacking Muloking who was trying to flee the scene. In doing so he caused the death of Muloking. Section 100 of the Penal Code provides that the right

15 to private defence extends to causing death only in certain limited circumstances. They are:

First - Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly - Such an assault as may reasonably cause the apprehension

20 that grievous hurt will otherwise be the consequence of such assault;

Thirdly - An assault with the intention of committing rape;

Fourthly - An assault with the intention of gratifying unnatural lust;

Fifthly - An assault with the intention of kidnapping or abducting;

Sixthly - An assault with the intention of wrongfully confining a person,

25 under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his

release.

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Since the accused had successfully seized the parang from Muloking, he could not possibly have been under the apprehension that he could suffer death or grievous hurt. In the premises, there is no evidence that the accused had acted in the exercise of the right of private defence against

5 Muloking.

2. Grave and sudden provocation

The second defence disclosed in the submission of the Counsel for accused is that the accused had been deprived of the power of self control because of grave and sudden provocation. The defence of grave and

10 sudden provocation is a special exception provided under section 300 of the Penal Code. It reads as follows:

Exception 1 - Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other

15 person by mistake or accident.

Learned Counsel for accused who was assigned by the court to defend the accused made a simple argument that the accused could have acted under grave and sudden provocation. However, as this is a capital case, regardless of the embryonic submission of learned Counsel for accused,

20 the court is obliged to consider the evidence disclosed during the trial to determine whether the defence of grave and sudden provocation could exculpate the accused from the charge of murder. The provisoes on the application of this defence are as follows:

The above exception is subject to the following provisoes:

25 Firstly - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the

powers of such public servant.

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Thirdly - That the provocation is not given by anything done in the

lawful exercise of the right of private defence.

In the instant case, the accused had killed Muloking who had allegedly attempted to throw a table at him when he asked for his arrears of six

5 months wages. In the event the accused is telling the truth, none of above provisoes that could defeat the defence of grave and sudden provocation would apply. The first proviso does not apply as the accused alleged that he did not seek any provocation but merely asked for his wages. The second proviso has no application as the accused is not a government

10 servant exercising his lawful powers. The third proviso would not apply as well if the accused is to be believed, as the provocation, if any, was not caused in the lawful exercise of the right of private defence. Muloking was not defending himself by throwing the table or by taking out the parang as the accused was not attacking him but merely asking for his

15 arrears of wages.

The law on grave and sudden provocation was considered in the well known case of Lorensus Tukan v PP [1988] 1 MLJ 25. This is what Seah
SCJ said at the Supreme Court:

It is an established principle of law that the test of grave and sudden

20 provocation is whether a reasonable man belonging to the same class of society as the accussed, placed in the situation in which the accused was placed, would be provoked as to lose his self-control. No abstract standard of reasonableness can be laid down. What a reasonable man would do under the circumstances depends upon the customs, manners,

25 way of life, traditional values, etc — in short, the cultural, social and emotional background of the society in which the accused belongs. It is for the court to decide in each case having regard to all the relevant circumstances. In order to succeed, the provocation must: (a) be grave and sudden; and (b) have by its gravity and suddenness deprived the

30 accused of the power of self-control.

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This case was cited with approval by Roberts CJ in the Brunei case of PP
v Lim Eng Kiat [1995] 1 MLJ 625. His Lordship elaborated on the above judgment as follows:

This will sometimes mean that the judges, if they come from different

5 races or communities to the defendant, will be obliged, in the absence of evidence, to try to assess how a reasonable man of another race or community would react to a provocation offered to him. This cannot be an easy task, but it is one which courts must undertake, to the best of their ability, as they are often obliged to judge the conduct of others

10 whose reaction and backgrounds are markedly different from their own.

The reasonable man has been defined in R v Camplin [1978] AC 705; [1978] 2 All ER 168; [1978] 2 WLR 679 as ‘an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow

15 citizens will exercise in society as it is today’ (cited in PP v Lim Eng Kiat

[1995] 1 MLJ 625).

Burden of proving defence of provocation

In Looi Wooi Saik v. Public Prosecutor [1962] 28 MLJ 337 the former

Court of Appeal held that there is no burden cast on the defence to prove

20 this defence as the burden on the prosecution to prove the guilt of the accused never shifts. However, in the case of Jayasena v. The Queen [1970] 1 All ER 219 from Ceylon, the Privy Council did not agree with this statement. Looi Wooi Saik v. Public Prosecutor(supra) was not followed by the latter Federal Court case of Ikau Anak Mail v. Public

25 Prosecutor [1973] 2 MLJ 153. In other cases where provocation was a defence, the courts have required the accused to prove it on a balance of probabilities (see Che Omar b Mohd Akhir v Pendakwa Raya [1999] 2

CLJ 780 and PP v. Norazam Ibrahim [2006] 8 CLJ 462). The reasoning

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of the latter decisions is that under section 105 of the Evidence Act 1950, the burden of proving general or special exceptions under the Penal Code lies on the accused. Bearing that in mind, I shall now consider whether the defence of grave and sudden provocation has been proven on a

5 balance of probabilities. The explanation to section 300 states that whether the provocation was grave and sudden enough to prevent the offence from amounting to murder, is a question of fact.

The accused in this case is not the average citizen. He is an illegal immigrant from a remote part of Sulawesi. He only speaks the Bugis

10 Bulu Kumba or Makassar dialect which is even different from the mainstream Bugis language. He found work with Muloking who is also the same racial stock. However, Muloking and his family have been in Tawau for a longer period than the accused. The accused told the court that he had come to look for work in this country only about six months

15 before the incident in question. It is not in dispute that the accused worked for Muloking. Jawaliah and Zaenab who are the sister and the wife of Muloking confirmed this fact. Although all of them worked on the Teck Guan plantation, the employment method is based on farming out blocks of the plantation to sub-contractors to weed and plant oil palm.

20 Muloking was the second sub-contractor of a block of the plantation. The main contractor from whom he received his share of the work is one Arifin. It is not disputed that the accused had worked for long hours from

6.30 a.m. to 5.30 p.m. every day for six months. His job involved weeding 600 acres of the plantation. He had to use pesticide and the

25 parang in question. It is also not disputed that all this time he never received any wages from Muloking. He only received shelter, food and water. Only on one occasion Muloking lent him RM200. Before the

incident in question, the accused had asked Muloking for his wages on

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three prior occasions but all to no avail. Each time the accused was given the same reason, i.e. that Muloking had yet to receive any payment from the main contractor. However, the accused had patiently continued working. On the evening in question, he approached Muloking again to

5 make his request. Apparently the accused had heard that the nephews of Muloking who did the same work as him had been paid. There is no independent eye-witness as to what had transpired. The only witness apart from the accused was one Yasinta. By the time of trial, she had left the country. The accused testified that Muloking responded to his proper

10 request by attempting to throw the table at him and taking out the parang from under the table. Apart from impressing me as a witness of truth on this point, I find this version to be probable for the following reasons. It certainly would not have been in the interest of the accused to plan the assault on Muloking for not paying him the arrears of his wages. This is

15 because by causing the death of Muloking, the accused would have no chance of getting his wages. It must be noted that the main reason he came illegally to Sabah from Sulawesi was to earn a living. Therefore a planned attack was a highly improbable. That only leaves an attack on the spur of the moment by the accused. Intention to kill may have developed

20 on the spot and can amount to culpable homicide but it cannot amount to murder if the accused acted on grave and sudden provocation. In my opinion, it is highly probable that the accused had acted on grave and sudden provocation. He was in a hapless situation. He had come into the country illegally. He had to do hazardous and presumably back breaking

25 work for six months. He did not receive any pay but only received food and water. He probably knew that as an illegal immigrant, he could not complain to the authorities or seek legal redress. Muloking had refused his request for pay on three other occasions on the ground that he had yet

to receive payment from the main contractor. However, the accused had

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heard from the nephews of Muloking that they had been paid recently. Therefore, the violent and offensive response of Muloking to the very fair request would have caused any reasonable man in the wretched position of the accused to lose the power of self control and act on grave and sudden

5 provocation. I therefore find that, on a balance of probabilities, the defence of grave and sudden provocation had been established. However, as the accused had slashed Muloking about at least twenty times, he must have had intended to cause death or had caused such bodily injury as is likely to cause death. In the premises, I find the accused guilty of

10 culpable homicide under the first limb of section 304 of the Penal Code.

Sentence

The maximum punishment for the offence of committing culpable homicide under the first limb of section 304 of the Penal Code is thirty

15 years imprisonment. Counsel for accused submitted that the accused has never committed any offence before and has a clean record. Of course, it is not possible to verify this claim as he is an illegal immigrant. It is only possible for counsel to say that he has no prior convictions in this country. However, for sentencing purpose, I shall give him the benefit of doubt and

20 assume that he has no prior convictions. Counsel for accused also submitted that he is the sole bread winner of his family and is a pious man. The fact that the accused may be a first offender is not of great significance in a case where a very serious and violent crime has been committed. Although I find that he had been provoked by Muloking, the

25 killing was without mercy and brutal. A lenient sentence would not reflect the seriousness of the offence. It would only send the message that

provocation would significantly reduce punishments for violent crimes.

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Having considered all the circumstances, I sentenced him to twenty years

imprisonment from the date of arrest.

5 (RAVINTHRAN PARAMAGURU) Judicial Commissioner

Date of Judgment: 10.5.2010

10 Date of Hearing: 22.2.2010

23.2.2010
24.2.2010
10.5.2010
1.4.2010

15 10.5.2010

For the Prosecution: DPP Amir Hamdzah
Jabatan Peguam Negara Malaysia
Kota Kinabalu

20 Sabah

For the Respondent: Dayangku Roshima Lilya
Awang Adenan Kadree & Co. Advocates
Tawau

25

30

35

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

22

Context