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High Court of Sabah and Sarawak |
] [Hide Context] [K45-03-2009]
5 MALAYSIA
CRIMINAL TRIAL NO. K45-03-2009
10 BETWEEN
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GROUNDS OF JUDGMENT
The accused was charged with murder as specified in the following charge:
“That you, on the 24th day of July, 2008, at about between 4.00 p.m. to 5.00
20 p.m. at Taman Rekreasi Bambangan, Kampung Modsiang, Jalan Tambunan, in the District of Penampang, in the State of Sabah, did commit murder by causing the death of one LAM AH SANG @ FOO AH SANG (M), identity card no:570607-12-5057 and that you have thereby committed an offence punishable under section 302 of the Penal Code.”
25 The prosecution case
The prosecution relies on the evidence of Foo Pow Choy (PW9), a childhood friend of the accused to prove its case. His evidence is that on 24 July 2008 the accused whom he affectionately called “Along” called him by phone asking him to come over to his house
30 as he (the accused) was having a problem. So he went to the accused’s house where the accused related to him his problems.
Also present at the house was a Filipino man. While at the house
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they smoked syabu together. Then another friend of the accused, a
Benggali joined them at the house. This Benggali also took drug, not
35 by smoking but by “jarum injek”. The accused then asked the Benggali to call the deceased by phone, which the Benggali did. After making the call the Benggali left. PW9 asked to be excused but the accused told him to wait and continued to relate to him his problems. They drank liquor at the same time.
40 A short while later the deceased arrived at the accused’s house. He joined PW9, the Filipina and the accused in the syabu smoking session. After a while PW9 again asked to be excused but the accused told him to wait for a while. Then the accused asked them to join him to look for his friend. So they went out in a car driven by
45 the accused. The deceased sat at the front passenger seat while PW9 and the Fillipino man sat at the back. They proceeded to Taman Rekreasi Bambangan at Jalan Tambunan and stopped by the riverside. All of them alighted from the car. The accused told them to collect some stones from the river and put them in the boot
50 of his car.
After the deceased and PW9 had placed the stones in the boot of the car, they chatted. It was at this time that the accused approached the deceased holding a parang. He asked the deceased if the parang was sharp and straight away slashed the
55 deceased’s left leg followed by a chop on the back of the neck.
According to PW9 the accused’s face was fierce and “serupa mahu makan orang” when he chopped the deceased’s neck. PW9 was horrified. After that they left the scene, leaving the fatally injured deceased behind.
60 According to PW9 before they left the scene he could hear the deceased saying “tolong tolong” in a low voice. When they reached the accused’s home, the accused warned PW9 not to tell anybody about the incident or else he too would receive the same fate. PW9
then went home by taxi.
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65 The deceased’s death was certified by the forensic pathologist Dr Jessie Hiu (PW5) to be due to ‘Chop wound to the neck’. It was a horizontal wound measuring about 18 cm long, 6.5 cm deep and cutting the neck muscles and backbone and exposing the spinal cord. The close up photo of the injury shows a big gaping wound at
70 the back of the neck. In the opinion of PW5 the wound was most likely caused by a sharp heavy instrument or weapon and was sufficient in the ordinary course of nature to cause death.
I have scrutinised the evidence of PW9 and paid particular attention to his demeanour and manner while giving evidence. I am satisfied
75 that he was telling the truth about what happened at the scene. I am of course mindful of the fact that demeanour alone is not the
touchstone of truth because a convincing witness may be an accomplished liar: per Edgar Joseph Jr J (as he then was) in Yeap Peng in v PP [1991] 4 CLJ (Rep) 285.
80 In the case of PW9 he is a childhood friend of the accused. There is no reason for him to implicate the accused with such grevious allegation unless it is the truth. There is no suggestion that he took part in the execution of the deceased. Nor is there suggestion that he knew the accused intended to kill the deceased. When asked in
85 cross examination why he agreed with counsel that initially the accused only intended to teach the deceased a lesson and not to kill him, PW9 said this is because the accused had never been that bad before. It must have been difficult for PW9 to testify against his childhood friend.
90 From the line of cross examination it is clear that the defence is not challenging PW9’s evidence that the injury on the deceased’s neck was caused by the accused. What the defence tried to establish through cross examination is that the accused intended to chop the deceased’s arm and not the neck. In other words the neck injury
95 was accidental. In this regard PW9’s testimony is that he would not
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know which part of the deceased’s body the accused intended to
slash as it happened so fast.
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As for the motive for the killing PW9 provided some clue when he said under cross examination that the accused told him that his wife had sexual relationship with several men and had run away from him. He did not mention the deceased’s name though.
The offence of murder
Murder is defined by section 300 of the Penal Code as follows:
“Except in the cases hereinafter excepted, culpable homicide is murder:-
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(a) If the act by which the death is caused is done with the intention of causing death;
(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 death is caused;
(c) If it is done with the intention of causing bodily injury to any 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 so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.”
The elements of the charge that the prosecution needs to prove beyond reasonable doubt are the following:
(i) That the deceased had died.
(ii)That he died as a result of the wound on the back of his neck.
(iii) That the wound on the back of the deceased’s neck was caused by the accused.
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(iv) That in inflicting such injury the act was committed by the accused with the mens rea under section 300(a), or (b), or
(c) or (d) of the Penal Code.
Whether prima facie case established
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A prima facie case arises when the evidence in favour of a party is sufficiently strong for the opposing party to be called on to answer. The evidence
adduced must be such that it can be overthrown only by rebutting evidence by the other side. Taken in its totality, the force of
the evidence must be such that, if unrebutted, it is sufficient to induce the court to believe the existence of the facts stated
in the charge or to consider its existence so probable that a prudent man ought to act upon a supposition that those facts existed
or did exists: per Augustine Paul J (as he then was) in PP v Dato’ Seri Anwar bin Ibrahim (no 3) [1999] 2 CLJ 215.
In deciding whether the prosecution had established a prima facie I had applied the test laid down by the Federal Court in PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 which is as follows:
“Put shortly, what the trial court is obliged to do under ss. 173(f) and 180 of the CPC is to ask itself the question: If the accused elects to remain silent, as e is perfectly entitled to do, am I prepared to convict him on the evidence now before me? See, Dato’ Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2
MLJ 232. If the answer to that question is in the affirmative, then the defence must be called. And if the accused remains silent, he must be convicted. If the answer is in the negative, then the accused must be acquitted.”
On the evidence before the court, it is clear to me that a prima facie case had been established against the accused at the close
of the prosecution’s case. I am satisfied that every element of the charge has been proved by the prosecution which if unrebutted
would warrant the accused’s conviction. When one chops another
person’s neck, the intention must be to cause his death.
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The defence case
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The duty of the court at the end of the trial is to consider all the evidence produced before it and to decide whether the prosecution has proved its case beyond reasonable doubt: see section 182A (1) of the Criminal Procedure Code. If, upon a review of the whole evidence there is a reasonable doubt as to the guilt of the accused, he must be acquitted: PP v Ibrahim Mahmud [2001] 1 CLJ 284. A case is said to have been proved beyond reasonable doubt only upon a consideration of all the evidence adduced: Balachandran v PP [2005] 1 CLJ 85.
Accused’s explanation
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The accused chose to give evidence on oath. He started off by saying that he and the deceased were close friends. Asked why he killed
the deceased he said it was because he suspected the deceased of having an affair with his wife. He went on to testify that he is
a drug addict and that on the date of the incident he took “more than one set” of drug. He said when he reached the recreation
park he was having a headache as he had not been sleeping for more than 10 days.
On the actual slashing itself, his explanation is that while they were at the park the deceased stared at him and he became scared.
He said he tried to look for a weapon and found one at the bonnet of his car. He took the parang and walked towards the deceased
and swung the parang at his leg. When the deceased retaliated by trying to punch him he swung the parang at the deceased’s hand
but hit his neck instead. He said he then panicked and drove home.
The only other witness called by the defence was Kumarasawami a/l S Kannan (DW2), a psychiatrist attached to Hospital Mesra Kota Kinabalu
at the time of the accused’s admission after his arrest. In his report (D1) DW2 recorded the accused’s history. Amongst others
the accused told DW2 that he was imprisoned in 2006. Upon his
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release he found that his wife had left him. This angered him and his anger mounted when he was told by his friends that she had an affair with the deceased while he was in prison.
Evaluation of the defence explanation
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The accused did not deny that the injury on the deceased’s neck was caused by him. He however claimed that he only intended to slash
the deceased’s hand and not to chop his neck. This is inherently improbable. If, as claimed by him he was swinging the parang at
the deceased’s hand as the deceased was trying to punch him the deceased would have sustained injury on his hand, but there was
none. Medical evidence shows only two wounds, one on the back of the neck and the other an incised wound on the left leg.
The medical evidence is consistent with PW9’s evidence that after the accused slashed the deceased’s leg he chopped his neck.
It was a continuous act. It is clear that the deceased was completely taken by surprise and had no chance of avoiding the murderous
assault. He could not have tried to punch the accused after being slashed on the leg. The accused was armed and he was not. The logical
thing to do would have been to run away instead of trying to punch the accused. Having regard to the ordinary course of events it
is just not possible that the deceased tried to punch the accused after being slashed on the leg. This allegation was also not put
to PW9 in cross examination. On this point suffice for me to cite the oft quoted observation of Mukharji J in AEG Carapiet v Derderian AIR [1961] Cal 359 where he said:
“The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross examination, it must follow that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of
essential justice.”
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However failure on the part of the defence to put its case as aforesaid can never, by itself, relieve the prosecution
of its duty of establishing the charge against the accused beyond all reasonable doubt: see Alcontara a/l Ambrose Anthony v PP [1996] 1 CLJ 705 per Edgar Joseph Jr J.
I reject the accused’s claim that he had accidentally chopped the deceased’s neck. I have no doubt that when the accused brought
the deceased to the recreation park murder was on his mind. The parang in the bonnet was the intended weapon. It is obvious that
the deceased was brought there to be executed.
Is the defence of grave and sudden provocation available to the accused? This defence was not raised by counsel in his final submissions
but in my view it is the duty of the court to consider the defence nonetheless as the accused did make an oblique reference to jealousy
as the reason for the killing. He was asked in examination in chief why he slashed the deceased and his answer was that
he suspected the deceased of having an affair with his wife. In cross examination it was put to the accused by the DPP that he inflicted
the injuries on the deceased because the deceased was having an affair (as opposed to mere suspicion) with his wife and he
agreed. There seems to be no other motive for the murder.
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The brutality of the accused’s act is also consistent with the act of a man consumed by the raging fire of jealousy. But the question
that the court has to consider is whether the accused was actuated by grave and sudden provocation when he killed the deceased.
Exception 1 to section 300 of the Penal Code provides 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
person by mistake or accident.”
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The common law concept of provocation was enunciated by Viscount Simon LC in Mancini v Director of Public Prosecutions [1942] A.C. 1 where he laid down the following test at page 9:
“It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self control, as the result of which he commits the unlawful act which causes death…The test to be applied is that of the effect of the provocation on a reasonable man, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance (a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.”
In Holmes v Director of Public Prosecutions [1946] 2All E.R. 124
Lord Simon said:
“The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self control whereby malice, which is the formation of an intention to kill or to inflict grevious bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill, or to inflict grevious bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has
been recognized viz, the actual finding of a spouse in the act of adultery.”
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In Nanavati v State of Maharashtra 
AIR [1962] SC 605 the Supreme Court of India held that the test of ‘grave and sudden’ provocation is whether a reasonable man,
belonging to the same class of society as the accused, placed in the situation in which the accused was
placed would be so provoked as to lose his self-control.
Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact: see the
Explanation to Exception 1 to section 300 of the Penal Code
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Now, having regard to the principles where does the defence of provocation fit in? I would say nowhere. There was no argument between
the accused and the deceased either at the accused’s house, in the car or at the park. Neither is there evidence that the deceased
had done something or said anything that could cause the accused to lose his self control. At the park they even had time to collect
stones from the river. The element of suddenness, if at all there was any provocation is completely absent. The accused’s
suspicion that the deceased was having an affair with his wife cannot by any stretch of the imagination amount
to grave and sudden provocation. For the exception to apply something beyond
mere suspicion must be established.
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The position in England as can be seen in Holmes is that the one very special exception recognized as grave and sudden provocation is the actual finding of a spouse in the act of
adultery. In the context of Malaysian society however I do not think it should reach that degree before adultery can amount
to grave and sudden provocation. If the circumstances were sufficient to cause a reasonable man to conclude that his spouse
had committed adultery prior to the killing that will be sufficient to constitute grave and sudden provocation. For example
if a man, upon returning home sees another man jumping out of the window under circumstances which creates grave suspicion that the
man had committed adultery with his spouse that can amount to grave and sudden provocation. If the man kills his spouse whilst deprived
of his power of self control that is not murder.
It is also the defence case that the accused was legally insane at the time he chopped the deceased’s neck. However learned counsel
did not even bother to refer to the expert evidence of the psychiatrist (DW2) in his submissions. This is understandable because
there is absolutely nothing in DW2’s evidence to support the defence of
insanity. On the contrary his evidence clearly shows that the
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accused was not suffering from any infirmity of the mind when he
killed the deceased.
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Counsel submitted that the accused was likely to be suffering from substance induced psychosis due to consumption of drug and alcohol
at the time of the killing so that when he attacked the deceased he could not have the intention to kill him. With due
respect this argument flies in the face of the evidence. The undisputed fact is that when the accused drove to the recreation park
he did not show any sign of abnormality. He was driving and talking normally along the way. More significantly before he put his
nefarious plan into action he asked the three men to collect stones from the river and to put them in the boot of his car. In my
view this was a pretext to allow the boot to remain open to facilitate quick access to the parang.
After the killing the accused himself drove the car home and when they reached home he warned PW9 not to tell anybody about the incident.
An insane person would not have the presence of mind to try to avoid the consequences of his criminal act. This is clear proof that
the accused was not insane, legally or otherwise at the time he chopped the deceased’s neck. I am not satisfied that the defence
of insanity has been proved on the balance of probabilities, if at all such defence is available to the accused. This was cold blooded
murder pure and simple.
It is settled principle that even where the court rejects the accused’s explanation, the court must not proceed to convict unless
the court is satisfied that the accused’s explanation has not raised any reasonable doubt in the court’s mind as to the guilt
of the accused. The prosecution would fail to satisfy the onus which lies upon it if on the whole of the evidence the court is left
in a reasonable doubt as to his guilt: see Mat v PP [1963] 1 LNS 82; PP v Mohd Radzi Abu
Bakar, supra. However proof beyond reasonable doubt must not be
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confused with proof beyond the shadow of a doubt. As Lord
Denning said in Miller v Minister of Pensions [1947] All E.R. 372:
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“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
Having considered all the evidence in the present case I am left in no reasonable doubt that the accused is guilty of the offence
charged. I am satisfied that the prosecution has discharged its burden of proving the case beyond any reasonable doubt. In the
circumstances the accused was convicted of the offence charged
and sentenced to death.
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Judicial Commissioner High Court Kota Kinabalu Sabah
Dated: 9th March 2010.
For the Public Prosecutor: Eyu Ghim Siang, DPP of the Attorney
General’s Chambers.
For the Accused: George Ngui of Messrs Ngui & Associates.
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