For the purpose of this and the preceding section “intoxication” shall be deemed to include a state produced by narcotics or drugs. 25 [20] When the defence of insanity or intoxication for that matter, is raised, it is incumbent on the court to consider two matters, viz: (i) whether the accused person has established that at the time of committing the act he was of unsound mind; if so (ii) whether his unsoundness of mind was of a degree as to make him incapable of knowing the nature of his act as being 30 wrong or against the law. In so doing, the court may also consider the circumstances which come after the crime. John Nyumbei v PP [2007] 2 CLJ 509. [21] The Court believes that the opinion of an expert is relevant although the Court is not bound by it; and that the role of the expert is merely to 35 assist the Court in arriving at its finding on the guilt of an accused. In Wong Swee Chin v PP [1980] 1 LNS 138, the Federal Court held: “In the Evidence Act, 1950, opinion of experts are under certain conditions admissible in evidence. Who are experts are explained in section 45 of the Act. Section 46 provides that facts not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant. DW2 was called as an expert witness. Our system of jurisprudence 5 does not generally speaking, remit the determination of dispute to experts. Some questions are left to the robust good sense of a jury. Others are resolved by the conventional wisdom of a judge sitting alone. In the course of elucidating disputed questions, aids in the form of expert opinions are in appropriate cases placed before juries or judges. But, except on purely 10 scientific issues, expert evidence is to be used by the court for the purpose of assisting rather than compelling the formulation of the ultimate judgments. In the ultimate analysis it is the tribunal of fact, whether it be a judge or jury, which is required to weigh all the evidence and determine the probabilities. It cannot transfer this task to the expert witness, the court must 15 come to its own opinion. Therefore the nature of DW2s evidence must be examined in the light of the above principles. We see nowhere in the records to suggest that the trial judge had incorrectly or improperly evaluated the evidence of DW2.”. [Emphasis added] 20 [22] The provision of s.85 of the Penal Code means that intoxication can only be a defence if the requirements of subsection (a) or (b) has been satisfied. In the present case, this Court opines that it is not up to the defence to allege that he is drunk without satisfying the requirement of 25 subsection (a). His intoxication state must have been induced by some other person and not by his own self. There was evidence from PW4 that the Appellant seemed to be unable to stand properly while he was trying to get his genitalia into her mouth in both incidents, and after the second incident, he had vomitted on her. There was also undisputed evidence by 30 the Appellant himself that he consumed 5 cans of beer to show that he did not know or was not aware of what transpired that night and morning. To my mind, this evidence totally negated his chance of invoking s.85 successfully to enable him to obtain an acquittal from the Court. He may have been drunk but he was not drunk enough to have his cognitive 35 functions impaired. In my view, s.85(2) is a legal requirement and it is not sufficient for the Appellant to invoke the defence without it being supported by an expert medical opinion. [23] The DPP submitted the case of Kumar Tamang v Public 5 Prosecutor [2021] MLJU 67, where the Court of Appeal held: “[36] In so far as the defence of intoxication, as set out in paragraph 31 above, the arguments raised by the learned counsel appears to us to be misconceived. Whilst the accused may, for the sake of argument, be found to be in the state of intoxication after the commission of the act or omission, that in itself cannot 10 bring his case within the Section 85(2)(b) of PC. What is material is that there must be evidence that at the time when the act or omission was to have occurred the accused must be in the state of intoxication and that he was insane in that he did not know that such act or omission was wrong or did not know what he was doing. The accused could have done so by 15 adducing medical evidence and cannot seek to prove it by way of submission as learned counsel have attempted here. Thus, the accused had failed to discharge the burden of showing all these elements. Therefore, the learned judge was correct when he found that the defence had not raised any reasonable doubt in the prosecution’s case and that 20 the prosecution had proved its case beyond reasonable doubt that the appellant was guilty as per charge.”. [Emphasis added] [24] Although the defence in the above case was in relation to insanity 25 or unsoundness of mind, the principle is the same to successullly invoke s.85(2)(b) of the Penal Code. This Court is bound by the decision above and to illustrate the point made by the Court of Appeal, please refer to the following excerpt of the Notes of Evidence where “papa” is PW4’s nickname. This evidence proved that the Appellant was in possession of 30 his mental faculties despite being drunk: Jilid 2(A) Rekod Rayuan m/s165 “TPR: Bila papa dengar makcik Subama ini panggil daripada luar, selepas itu apa yang terjadi? 35 SP4: Buventhiran telah dengan cepat keluar dari mattress dan dia berdiri di sini di gambar H. …. TPR: Apa tindakan papa bila dengar makcik Subama panggil dari luar? SP4: Saya turun daripada katil, Buventhiran suruh saya berdiri berhenti di situ dan bagitahu kalau ibu bapa kamu tahu saya tak pasti apa yang akan 5 saya lakukan…”. [25] The Appellant referred to the case of Kenneth Fook Mun Lee v PP [2006] 4 CLJ 359 in support of his argument that he could invoke the defence of intoxication. Nevertheless, this Court found that even that case 10 did not support his contention, where the conviction for murder was upheld by the Federal Court. The apex court stated that “In fact, the Court of Appeal went on to say that even if accepting the finding of the learned trial judge that the appellant was in an intoxicated state at the material time, he was not in such a state that he had no knowledge of what he was 15 doing.”. Here, I understand the Appellant’s words when he said “…kalau ibu bapa kamu tahu saya tak pasti apa yang akan saya lakukan” that he was threatening the victim that he would not be responsible for what he might do if her parents found out about he did to her that morning. Pursuant thereto, the Court found that the Appellant was not so 20 intoxicated that he did not know that such act or omission was wrong or did not know what he was doing. Hence the defence of intoxication failed. [26] Lastly, before I move on to the appeal against sentence, briefly, in regard to the issue of the adverse inference that should have been 25 invoked against the prosecution for failure to call certain witnesses, it is essential to appreciate the scope of s 114(g) lest it be carried too far outside its limit. It is trite law that s.114(g) of the Evidence Act cannot be simply invoked unless there was suppression of material evidence or the witness is a material witness: Munusamy v Public Prosecutor [1987] 1 30 MLJ 492. In the case of Francis Okechukwu Nwankwo v PP [2022] MLJU 2836 the Court of Appeal held: “[41] We appreciate the trite principle that the onus is on the PP to exclude the possibility of access by others to the place of discovery. [See Abdullah Zawawi 5 bin Yusoff v PP [1993] 2 MLJ 1]. Be that as it may, it is trite law that the duty on the PP is only to produce in Court all witnesses necessary for the unfolding of the narrative. Besides that, the PP has the discretion as to which witness to call...”. 10 [27] The prosecution witnesses called by the prosecution to estanblish their case were sufficient to the unfolding of the narrative. I found no merits in the Appellant’s argument on this issue as well. Overall, this Court found that the SCJ had conducted a maximum evaluation of the evidence presented to the Court and the prosecution had proved its case beyond a 15 reasonable doubt. He simply denied the accusations and had the audacity to impute that at age 8, PW4 was a loose character who had recorded a pornographic video(s) of herself to be disseminated and that her brother PW3 who had a learning disability was complicit in her immorality. 20 [28] In Mohamad Radhi B Yaakob v Public Prosecutor [1991] 3 MLJ 169 the Supreme Court held: “In this connection, counsel for the appellant had referred to us the case of PP v Saimin & Ors [1971] 2 MLJ 16 where Sharma J held that the falsity of 25 the defence does not relieve the prosecution from proving the prosecution's case beyond reasonable doubt. We are of the view that whenever a criminal case is decided on the basis of the truth of the prosecution's case as against the falsity of the defence story, a trial judge must in accordance with the principle laid down in Mat v PP [1963] MLJ 263 go one step 30 further before convicting the accused by giving due consideration as to why the defence story, though could not be believed, did not raise a reasonable doubt in the prosecution case. Thus, even though a judge does not accept or believe the accused's explanation, the accused must not be convicted until the court is satisfied for sufficient reason that such 35 explanation does not cast a reasonable doubt in the prosecution case. To satisfy this test it is not so much the words used by the judge, but rather the actual application of the test to the facts of the case that matters...”. [Emphasis added] 5 [29] I have applied the principle in Mat v PP (supra) and found that although the Appellant’s version could not be believed, it did not raise a reasonable doubt on the prosecution case because the prosecution’s version was consistent and overwhelming against the Appellant as 10 opposed to his version. Additionally, this Court agreed with the findings and rationale of the SCJ whom had the benefit of observing the demeanour of the witnesses before her. The conviction was safe and there was no necessity for this Court to interfere with the trial court’s findings. The appeal against conviction was accordingly dismissed. 15 Appeal against sentence [30] The cross-appeal against sentence was on the purportedly manifestly inadequate terms of imprisonment in respect of the charges 20 which the Appellant was found guilty of. The DPP submitted that the sentences must serve as a deterrence to the Appellant and the public at large. Moreover, they were relatives and the sentences should be even heavier. 25 [31] It was submitted by the Appellant that a long term of imprisonment would have a “crushing effect” on him. I agreed that the SCJ considered factors and decided that public interest was the overriding consideration in the present case after taking into account that they were close relatives, a longer period of imprisonment was best for the victim’s recovery from the trauma of her ordeal. [32] In the case of Bachik Abdul Rahman v PP [2004] 2 CLJ 572 Augustine Paul JCA (as his Lordship then was) stated: 5 “…The exercise of the discretion to determine the date of commencement of the sentence of imprisonment is dependent on the facts and circumstances of each case. In deciding whether the terms of imprisonment should be consecutive or commence at another date the court will be guided by the one transaction rule and the totality 10 principle. Pursuant to the one transaction rule where two or more offences are committed in the course of a single transaction all sentences in respect of these offences should be concurrent rather than consecutive (see R v. Saleem [1964] Crim LR 482; R v. Walsh [1965] Crim LR 248). For there to be one transaction four elements must be present, that is to say, 15 proximity of time, proximity of place, continuity of action and continuity of purpose or design (see Jayaraman & Ors v. PP [1979] 1 LNS 36; [1979] 2 MLJ 88; Amrita Lal Hazra v. Emperor 42 Cal 957; Chin Choy v. PP [1955] 1 LNS 17; [1955] MLJ 236). The rule, however, is not absolute. As Yong Pung How CJ said 20 in Kanagasuntharam v. PP [1992] 1 SLR 81 at p. 83:..”. [Emphasis added] [33] In regard to the “one transaction rule” principle, this was a suitable case to impose a concurrent sentence because the 2 charges satisfied 25 the criteria of proximity of time, proximity of place, continuity of action and continuity of purpose or design as stated in Bachik Abdul Rahman’s Case (supra). [34] In the often-cited case of Govindnan Chinden Nair v PP [1998] 2 30 CLJ 370 in respect of taking into account public interest consideration in the principles of sentencing and Usman Bin Jumasan v PP [2016] MLJU 1362 the Court of Appeal stated: “In the exercise of his discretionary power the sentencing judge must apply his mind to the factual matrix of the case. In other words, the sentence passed must relate to the facts and circumstances of each case.”. 5 [35] The factual matrix of the case was appropriate and commensurate with the sentences imposed upon the Appellant. Therefore, an appellate court would be slow to interfere or disturb a sentence passed by a lower court unless it is manifestly wrong in the sense of being illegal or unsuitable to the proved facts and circumstances: PP v Mohamed Nor & 10 Ors [ 1985] 2 MLJ 200. The Appellant’s appeal and the Respondent’s cross-appeal on sentence were dismissed. CONCLUSION [36] Premised on the above, the Court did not find any error of fact or 15 law such that would justify the Court to disturb the findings nor to interfere in the sentences meted out by the Sessions Court Judge. Accordingly, the Court affirmed the conviction and sentences imposed by the Sessions Court Judge upon the Appellant. Appeals dismissed. 20 Dated 26 May 2024 25 NOOR RUWENA BINTI MD. NURDIN Judicial Commissioner High Court of Malaya, Taiping 30 Representation For the Appellant : Mr. Thandayuthabany Messrs. R Nethaji Rayer & Co., P. Pinang 5 For the Respondent : DPP Ng Yan Ni Pejabat Timbalan Pendakwa Raya Negeri Perak, Taiping 10