Alsar Bin Imagu v Public Prosecutor (S-05(M)-382-10/2016)

(a) learned trial judge erred in law and in fact when her ladyship wrongly stated that the appellant had tried to stab PW11 after PW11 received a distress call from the deceased;

(b) learned trial judge had failed to consider the inconsistencies between the evidence of PW11 and PW4 regarding the number of stab wounds on the deceased inflicted by the appellant;

(c) learned trial judge erred when her Ladyship found that a prima facie case had been made out against the appellant;

(d) learned trial judge erred when her Ladyship convicted the appellant for the offence charged;

(e) learned trial judge erred in accepting the evidence of PW11 as a credible witness;

(f) learned trial judge had failed to consider the possibility of third party involved in the murder of the deceased;

(g) learned trial judge had failed to consider that there was a serious gap in the prosecution’s case;

(h) learned trial judge erred in not making a finding that PW11 had given a conflicting version of the incident;

(i) learned trial judge erred for failure to consider that the appellant had not challenged that the appellant had inflicted the fatal wound; 11

(j) learned trial judge erred when her Ladyship hold that the murder of the deceased was premeditated by the appellant;

(k) learned trial judge erred in accepting and relying on the appellant confession to support the conviction;

(l) learned trial judge erred in holding that there was a “cooling off” period;

(m) learned trial judge erred in holding that the appellant wanted to see the deceased armed with a knife when it was the deceased who had instructed the appellant to go and see him; and

(n) on the totality of the evidence, the conviction by the learned trial judge was unsafe. [20] Before us, learned counsel for the appellant canvassed only one main ground of appeal, namely, that there was doubt in the prosecution’s case due to the inconsistencies in the evidence of P11 and PW4 with regard to the stab wounds inflicted by the appellant. Learned counsel argued that PW11 in his evidence stated that he saw the appellant stabbed the deceased twice, once on the chest and once on the back. PW4 evidence was that she found that there were five stab wounds altogether, two stab wounds on the deceased’s chest and three stab wounds on his back. The cause of death of the deceased as testified by the pathologist was the one particular stab wound on the chest injuring the deceased heart. Learned counsel argued that doubt arised to as who had inflicted the fatal stab wound and this, according to the learned counsel was never considered by the learned trial judge. 12 [21] It was further argued that there was a gap in the prosecution’s case due to non-calling of another eye witness to the incident. There was another witness by the name of Sarah, who had alerted PW12, the deceased’ wife and who had also alerted the police. [22] Other complaints by learned counsel was that the crime was not premeditated as found by the learned trial judge. Learned counsel argued that the appellant had by chance took the knife from the Restaurant Capitol nearby. Learned counsel argued that the appellant took the knife out of fear, to defend himself and not at all plan to kill the deceased with the knife. Learned counsel further argued that the appellant was provoked and was beaten up before the stabbing and this could be considered as a grave and sudden provocation. Our Decision [23] We have perused through the judgment of the learned trial judge and the Appeal Records, we are of the considered opinion that the findings of the learned trial judge was not perversed in convicting the appellant on the charge proffered. We found that there were cogent and overwhelming evidence that aptly supported the conviction. 13 [24] We noted that central to the submissions of learned counsel was whether there was doubt in the prosecution’s case and whether the appellant had established on the balance of probabilities, the defences of either intoxication, sudden and grave provocation or right to a private defence. As alluded earlier in our judgment, both issues had been dealt with by the learned trial judge in her grounds of judgment. [25] In respect to the issue of inconsistencies between the evidence of PW11 and PW4 regarding the number of the stab wounds, the learned trial judge accepted the argument of the prosecution that PW11 may not remember exactly the number of stab wounds on the deceased as the incident happened in 2013 and the trial was in 2015. On this aspect, the learned trial judge was therefore correct when she stated thus in her judgment (page 34 AR vol.1): “PW11 had testified that he saw the deceased been stabbed twice by the accused ie, one on the chest and one on the back. Meanwhile Dr Jassie Hui PW4 had confirmed that there were 5 injuries caused by the sharp object. [NOP Page 60 para 783 – 860]. There is undoubtedly discrepancies in the evidence as to the number of stab wounds but the court accepted the argument of the prosecution that the PW11 may not remember the number of stab wounds as this case occurred in 2013 and only goes for trial in 2015. The witness also are not expected to remember exactly the number of stab wounds on the deceased especially in the situation where he was under fear of getting himself injured by the accused.”. 14 [26] In PP v Datuk Hj Harun Bin Hj Idris (No.2) [1976] 1 LNS 184; [1977] 1 MLJ 105, where Raja Azlan Shah FCJ held as follows: “In my opinion discrepancies there will always be, because in the circumstances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened. It may be open to criticism, or it might be better if they took down a notebook and wrote down every single thing that happened and every single thing that was said. But they did not know that they are going to be witnesses at this trial. I shall be almost inclined to think that there are no discrepancies, it might be suggested that they have concocted their accounts of what had happened or that had been said because their versions are too consistent. The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must be either be believed in its entirely or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other. It is therefore, necessary to scrutinize each evidence very carefully as this involves the question of weight to be given to certain evidence in particular circumstances.”. [27] Regarding the same issue, learned counsel argued that there might be a possibility of a third person involved in stabbing the deceased using another knife. This was not considered by the learned trial judge as argued by learned counsel. We did not agree with learned counsel submission. This issue had been duly considered by the learned trial 15 judge at pages 33 – 34 AR Vol.1 of her judgment which we reproduce as follows: “This witness was the sole witness to the crime. He was there when both the deceased and the accused got into a fight and the only person to witness the accused stabbing the deceased with a knife. Throughout his evidence, there was no mention about a third person nor does his evidence lead to an indication of a third person. The witness also said that the accused used a pocket knife to stab the deceased and had identified that knife (Exhibit P11(7)(A). PW11’s evidence was corroborated by evidence of Corporal Mohd Amin Bin Ngahadi (PW9) who saw the accused come to the police station with his clothes and face covered in blood. The accused was holding a pocket knife about 7 to 8 inch long which he identified the knife as Exhibit P11(7)(A). [NOP Page 3 para 64 – 89]. PW11’s evidence was also corroborated by evidence of Dr Jessie Hui, PW4 who testified that the knife as per Exhibit P11(7)(A) could have been used to cause the injuries as it explained why some of the stab wounds have one sharp end and one sharp edge and one blunt edge. This leave out the possibility as contended by the defence the involvement of an unidentified accused using another knife.”. [28] We further agreed with the learned trial judge that the most crucial evidence of PW11 was that he recalled the appellant as the person who had stabbed the deceased on the chest and that stab wound on the chest was confirmed by PW4 as the cause of death of the deceased. The evidence of PW9 who testified that the appellant had surrended himself and handed over the bloodstained knife, which evidence as to 16 the conduct relevant and admissible under section 8 of the Evidence Act 1950, corroborates PW11’s evidence in pointing to the guilt of the appellant (see Mohd Bakri Belaho v. PP [2008] 2 CLJ 240). [29] We agree with the finding of the learned trial judge that the credibility of PW11, the crucial witness remained unshaken and that the evidence of PW9 was intact as there was no cross-examination in respect of his evidence (see Wong Swee Chin v. PP [1980] 1 LNS 138): “Failure of the defence to cross examine the prosecution witnesses on the matter merely goes to the credibility of their testimony, to wit, the fact that they found the ammunition in the appellant’s trouser pockets remains unshaken. On this point, we need only say there is a general rule that the failure to cross examine a witness on a crucial part of the case will amount to an acceptance of the witness ‘testimony.”. [30] On the argument by learned counsel on the issue of premeditated and “cooling off period”, the learned trial judge had considered these points in her judgment. The learned trial judge was correct when she stated in her judgment at pages 39 – 40 AR vol.1, as follows: “The facts of the case are both the accused and the deceased had a fight on the phone before the actual murder at Lorong 2 Bandar Sandakan. When they met at Lorong 2, the accused may have brought along with him a knife. There was a time gap between the last phone call and the actual meet up. During the first fight, there was no knife 17 involved. PW11 came to disperse their fight and all three of them walked away. Not long after that, the accused turned back and stabbed the deceased. There was indeed a cooling off period from the first fight and the second fight which led to deceased’s death. The accused may have the second thought about hurting the deceased hence the reason why he turned back. In Chan Kwee Fong v Public Prosecutor [2010] 3 CLJ 671, Abdul Malik Ishak JCA held that: “the longer the time gap between the provocative episode and the homicidal act, the more likely that it will be construed that the accused had killed due to premeditation or revenge” The proposition was supported by evidence of the Investigating Officer, PW15 that during the investigation of the accused, the accused revealed that he took the knife from Capitol Restaurant, Bandar Sandakan before he confronted the deceased at Lorong 2, Bandar Sandakan. [NOP page 16 para 329 – 343].”. [31] On the issue of non-calling of Sarah, the other eye witness as alleged by learned counsel, we found that the issue was raised before us for the first time. The same issue was never raised in the court below. The issue concerning the existence of Sarah was never put to the prosecution’s witnesses especially to PW11. The issue was also never canvassed before the learned trial judge. That explained why the issue of Sarah was not reflected in the judgment of the learned trial 18 judge. It is our judgment that the learned counsel is now estopped from canvassing the same issue before us. [32] On a further note, it is the discretion of the Public Prosecutor to whom the power is vested under Article 145 of the Federal Constitution and section 376 of the Criminal Procedure Code to call any witness to prove the narrative of their case. After all, what matters most is not the quantity but the quality of the witness. Therefore, the issue of non-calling of Sarah is a non-starter. [33] Insofar as the defence is concerned, the learned trial judge had made the following findings in respect of the appellant defence of provocation: “In the instant case, there are no provocations on the part of the deceased as it is clear in Exhibit D2 that the accused who initiated the provocation by pushing the deceased before the deceased retaliate by punching the accused. On top of that, both the deceased and the accused had stopped fighting after PW11 came in and disengaged them. The accused then walked towards KFC building and the deceased walked to his motorcycle. There was a “cooling off” period between the two of them before the accused turned back running and stabbed the deceased. The accused’s act is no longer a provocation, its pre-meditated.”. 19 [34] The learned trial judge relied on the Federal Court case of Che Omar Mohd Akhir v. PP [2007] 3 CLJ 281 where Nik Hashim FCJ in delivering the judgment of the court said: “[14] The question whether the provocation was grave and sudden such as to make the accused to lose his self-control is a question of fact and not one of law (see Explanation to Exception 1 to s 300 of the PC: Kuan Ted Fatt v Public Prosecutor [1985] 1 CLJ 150; [1985] CLJ (Rep) 174 FC). Each case is to be considered according to its own facts. The court must decide on the particular circumstances of that case whether the provocation was grave and sudden enough to permit an indulgent view of the crime committed by the accused, (see Ratanlal & Dhirajlal, The Indian Penal Code, 29th edn, 2002 p 1194). [15] The test of “grave and sudden provocation” was clearly stated in the Supreme Court case of Lorensus Tukan v Public Prosecutor [1988] 1 CLJ 143; [1988] 1 CLJ (Rep) 162. Seah SCJ in delivering the judgment of the court said: The test of ‘grave and sudden’ provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control (see Nanavati v State of Maharashtra AIR [1962] SC 605, 530). In determining what amounts to grave and sudden provocation the court may take into account the habits, manners and feelings of the class or community to which the accused belongs but not of the particular idiosyncracies of the accused: Madhavan v State of Kerala AIR [1966] Ker 258 (260). [16] It is also said that the defence of provocation is a dual one: the alleged provocative conduct must be such as (i) actually causes in the 20 accused, and (ii) might cause in a reasonable man, a sudden and temporary loss of self-control as a result of which he kills the deceased. [17] Thus, in order to successfully set up provocation as a defence for the reduction of the offence of murder to one of culpable homicide not amounting to murder, it is not enough to show that the accused was provoked into losing his self-control; it must be shown that the provocation was grave and sudden and must have by its gravity and suddenness caused a reasonable man to lose his self-control and induced him to do the act which caused the death of the deceased. In determining that question the court may also consider, along with other factors, the nature of the retaliation by the accused, having regard to the nature of the provocation.”. [35] Further at page 294 at para [20] of the same case, his Lordship said: “[20] ….To our minds, there is no such thing as gradual and accumulated provocation that amounts to grave and sudden provocation. Devoid of its gravity and suddenness, a gradual and accumulated provocation is not sufficient to constitute a defence under Exception I to S.300 of the PC”. [36] We found no appealable error by the learned trial judge in making the above finding on the defence of provocation. We found nothing wrong with the approach adopted by the learned trial judge. 21 [37] In regard to the defence of intoxication, the learned trial judge ruled as follows: “This defence is spelt out in S.85 of the Penal Code where it reads S.85(1) Save as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal charge.

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission. The accused admitted that he had 3 sets of tiger beer. However, during the time the accused gave evidence in court, there was no indication that he was under a state of intoxication, he even remembered what happened on that day, where he got the knife from and even surrendered himself to Balai Polis Sandakan. This defence should then fail.”. [38] We agree with the learned trial judge’s finding that the appellant was not intoxicated at the time of the offence. The appellant had failed to establish on the balance of probabilities the defence of intoxication as set out in the law (see Chan Kwee Fong v. PP [2010] 3 CLJ 671; Abdul Aziz Mohamed Shariff v. PP [2010] 5 CLJ 733). 22 [39] In regard to the defence of right of private defence, the learned trial judge made the following findings: Exception 2 of Section 300 of the Panel Code reads; “Exception 2 – Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law, and causes the death of the person whom he is exercising such right of defence, without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.” This exception is to be read with Section 96 of the code which provides that nothing is an offence which is done in the exercise of the right of private defence. Section 99 sets the limits of this right and section 99(4) qualifies that the right of private defence does not extend to the inflicting of more harm than it is necessary to inflict for purpose of defence. Ajaib Singh J in PP v Ngoi Ming Sean [1981] CLJ 93; [1981] CLJ (Rep) 251; [1982] 1 MLJ 24 summarised provisions dealing with right of private defence as follows: “The code provides that nothing is an offence which is done in the exercise of the right of private defence of a person’s body. But there is no such right where the person has time to seek the protection of the public authorities. Nor will this right of private defence extend to the inflicting of more harm than is necessary for the purpose of defence. Subject to these limitations, the right of private defence of the body extends even to the voluntary causing of death or any other harm to the assailant if the person who exercises his right of private defence is under a reasonable apprehension that death or grievous hurt would be caused to him by the assailant. The right of private defence 23 commences as soon as there is reasonable apprehension of danger to the body and this right continues so long as such apprehension of danger continues (see S.96 to 102 of the code). And it goes without saying that the right of private defence ceases and is not available when there is no more apprehension of danger to the body” Looking at the case before hand, the accused had the option to avoid the fight altogether and there was also nothing to prevent him from fleeing if he wants to and this was reflected in his own evidence in court. However, the accused chose to fight with the deceased by turning back and stabbed the deceased on his chest.”. [40] Likewise, we found no appealable error on the part of the learned trial judge in making the above finding on the defence of right to private defence. The burden is on the appellant to prove on balance of probabilities, the existence of circumstances bringing the case within any of the general exceptions as envisaged in section 105 of the Evidence Act 1950, which states: “105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances. 24 ILLUSTRATIONS

(a) A accused of murder alleges that by reason of unsoundness of mind he did not know the nature of the act. The burden of proof is on A.

(b) A accused of murder alleges that by grave and sudden provocation he was deprived of the power of self control. The burden of proof is on A.

(c) Section 325 of the Penal Code provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the circumstances, bringing the case under section 335, lies on A.”. [41] We have also considered the other complaints of the appellant in their Petition of Appeal and the learned counsel submission. We considered all of them to be insignificant to this appeal which will not alter our conclusion which we had arrived herein. 25 Conclusion [42] Accordingly, we unanimously dismissed the appeal and confirmed the conviction and sentence of the High Court. Dated: 4th December 2017. Signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Counsel/Solicitors For the Appellant: Majnah bte Abdillah Messrs Zakaria Ahmad & Co 1st Floor, Lot 184, Block 19, Prima Square Phase III, Mile 4, North Road, 90000 Sandakan, Sabah. For the Respondent: Mohammad Azmi bin Mashud Deputy Public Prosecutor Attorney General’s Chambers Putrajaya.