Donny @ Mohd Nazmie Bin Musanna v Pendakwa Raya (S-05(M)-583-12/2022)

The Appellant was convicted of the offence of murder under section 302 of the Penal Code and was sentenced to death by hanging on 7 December 2022. This is his appeal against the conviction and sentence imposed by the High Court at Kota Kinabalu.

The Amended Charge preferred against the Appellant reads: “That you, on the 26th day of March 2019, between 2.00 a.m. to 3.00 a.m., located at Tamu Tomburungus’s area, in the District of Kudat, in the State of Sabah, did commit murder by causing the death of one Ampukir bin Aladau (Male/64 years old, Rungus, NRIC No. 540706-12-5321) and that you thereby committed an offence punishable under section 302 of the Penal Code (Act 574) of the Laws of Malaysia.”

On 26 March 2019, PW9 together with the deceased, the Appellant, PW7 and one Dolumni, were engaged in a drinking session behind the old police station at Kg. Rungus. PW9 testified that at some point thereafter, he lay down to rest and fell asleep at the same location.

PW9 further testified that he was first awakened when the Appellant was searching for his identity card and handphone in the presence of the deceased. The deceased did not respond to the Appellant’s queries, whereupon PW9 returned to sleep.

PW9 stated that he was later abruptly awakened when he was struck by someone. Upon opening his eyes, he observed the Appellant punching and kicking the deceased on the head and face. At that material time, PW9 testified that the Appellant was standing while the deceased was in a seated position.

Fearing for his own safety, PW9 fled the scene and made his way towards PW7 and Dolumni, who were then at the stadium known as Astaka.

At approximately 3.00 a.m., PW9 located PW7 and Dolumni at the Astaka and informed them that the deceased had been assaulted, and sought their assistance.

Upon returning to the scene, they found the deceased lying on the ground in a prone position (“melimpang”), but still breathing. PW9 and Dolumni thereafter proceeded to the police station to lodge a report and contacted an ambulance.

PW7’s testimony corroborated PW9’s account insofar as the events preceding the incident were concerned. PW7 confirmed that the drinking session earlier that night involved PW9, the Appellant, the deceased and Dolumni.

PW7 further testified that he had earlier left the scene to sleep with Dolumni at the Astaka. He stated that he was later awakened by PW9 and informed of the incident. PW7 then accompanied PW9 and Dolumni back to the scene, where they found the deceased lying (“melimpang”) on the ground.

Finally, PW11, the medical officer, confirmed that the cause of death of the deceased was: “severe head injury caused by blunt force trauma by impact, by a blunt object-weapon-surface which includes punching”.

In summary, the learned Judicial Commissioner was satisfied that the prosecution has established a prima facie case. The learned Judicial Commissioner was satisfied that it was undisputed that the deceased, Ampukir bin Aladau, had died, and that his death resulted from the injuries he sustained. The identity of the deceased was established through post-mortem photographs by the Forensic Pathologist (PW11), PW7 and PW9, and was further confirmed by the Investigating Officer (PW13).

The learned Judicial Commissioner accepted the evidence of PW11 that the injuries to the head were the most serious and were sufficient in the ordinary course of nature, to cause death. The post-mortem examination disclosed extensive subgaleal haematomas of the scalp, a large right-sided subdural 5 haemorrhage, subarachnoid haemorrhage over the left frontal region, haemorrhages at the base of the brain, and marked cerebral oedema. Fractures were also observed on both sides of the face. The learned Judicial Commissioner found that the cumulative effect of these injuries caused the death of the deceased, and that there was no evidence of any underlying medical condition which could have caused or contributed to the deceased’s death at the material time.

Further, the learned Judicial Commissioner accepted PW11’s opinion that the injuries were consistent with blunt force trauma and could have been inflicted by impact with a blunt object or surface, including, by punching. Upon a consideration of the evidence as a whole, the learned Judicial Commissioner was satisfied that the cause of death was the head injuries sustained by the deceased.

The learned Judicial Commissioner further found that the prosecution had adduced sufficient credible evidence to establish that it was the accused who inflicted the injuries to the deceased’s head and face.

In proving this element, the prosecution relied on both direct and circumstantial evidence, as elicited through the testimony of its witnesses.

Lee Kong Min (PW9), also known as “Espanyol”, was found to be the witness closest in time and proximity to the incident. He 6 testified that he saw the accused punching and kicking the deceased on the head and face. The learned Judicial Commissioner accepted PW9 as an eyewitness to the assault.

Prior to the incident, PW9 testified that he, the accused and the deceased, together with PW7 and one Dolumni, had been consuming alcoholic drinks at Kg. Rungus behind the old police station, a location identified by PW9 through photographs marked P34(1)-(6). They remained there until nightfall, after which PW9 lay down to rest and fell asleep.

PW9 further testified that he was suddenly awakened when someone knocked into him. Upon opening his eyes, he saw the accused punching and kicking the deceased on the head and face. Fearing for his own safety, PW9 ran from the scene to seek PW7 and Dolumni, who were then sleeping at the Astaka, a nearby stadium. The learned Judicial Commissioner noted that PW7 and Dolumni had earlier been part of the same drinking session.

The learned Judicial Commissioner found that PW7’s testimony materially corroborated PW9’s account. PW7 confirmed that on the day in question, the accused, the deceased, PW9, Dolumni and PW7 had spent the day drinking alcoholic beverages, from the morning until they arrived at Tomborungus. PW7 subsequently left the location and went to sleep at the Astaka with Dolumni.

The learned Judicial Commissioner further found that at about 3.00 a.m., PW9 woke PW7 and informed him that he had witnessed the deceased being assaulted, and sought PW7’s assistance. PW7 and PW9 then returned to Tomborungus, where PW7 saw the deceased lying on the ground and still breathing.

The learned Judicial Commissioner correctly directed herself that intention or knowledge (mens rea) is an essential ingredient of the offence of murder. Such intention or knowledge is a matter of inference to be drawn from the totality of the evidence, and is to be determined from the surrounding facts and circumstances, including whether the accused intended to cause death or had knowledge that his acts of punching and kicking the deceased’s head and face were likely to cause death.

Based on the evidence of PW9, PW7 and PW11, the learned Judicial Commissioner found that the prosecution had adduced strong evidence demonstrating that the accused intentionally inflicted the injuries on the deceased. PW9 testified that he saw the accused repeatedly punch the deceased on the head and kick him multiple times. PW9 also demonstrated in court the manner in which the accused assaulted the deceased.

The learned Judicial Commissioner considered the defence’s submission that the evidence of PW9 ought to be approached with caution on account of alleged inconsistencies and his state 8 of intoxication. It was contended that PW9 was reluctant to be forthright during cross-examination, particularly in relation to his consumption of alcohol, and that his answers were at times unclear and inconsistent.

The learned Judicial Commissioner noted the prosecution’s concession that PW9 had consumed alcohol on the night in question. However, Her Ladyship accepted the prosecution’s submission that this fact alone did not render PW9’s evidence unreliable. PW9 had explained that he was sober at the time he witnessed the assault. Further, the learned Judicial Commissioner accepted that the distance between PW9 and the accused and deceased was close, rendering it entirely possible for PW9 to observe the incident clearly. PW9’s explanation regarding the amount of alcohol consumed was also found to be consistent when considered in its proper context.

The learned Judicial Commissioner further found that PW9 had rested and slept after the drinking session, which supported his explanation that he was sober when he was awakened by the incident. The identity of the accused was not an issue, as he was well known to both PW9 and PW7. PW9 was unequivocal in his testimony that he saw the accused punch the deceased on the head and face and kick him repeatedly.

Although there were discrepancies in PW9’s testimony concerning the presence of lighting at the scene, the learned Judicial Commissioner found that these discrepancies were not material. PW9 remained firm and consistent on the central fact that the accused continuously assaulted the deceased. In re-examination, PW9 explained that the incident occurred directly in front of him, enabling him to see the assault even in the absence of lighting. Having observed PW9’s demeanour, the learned Judicial Commissioner was satisfied that PW9 was a credible witness and that his evidence as to what he saw could be safely relied upon.

The learned Judicial Commissioner further found that PW9’s evidence remained intact even under cross-examination. In assessing credibility, Her Ladyship considered the evidence in its entirety and the inherent probabilities of the case. Her Ladyship found no basis to reject PW9’s testimony, noting that the material facts establishing the ingredients of the offence were consistent with the overall probabilities.

The learned Judicial Commissioner also found that the circumstantial evidence supported PW9’s account, particularly his conduct in fleeing the scene and subsequently seeking PW7’s assistance. Accordingly, the learned Judicial Commissioner accepted the prosecution’s submission that any discrepancies in PW9’s evidence were not fatal to the prosecution’s case, as they did not go to the substance of the charge.

Finally, the learned Judicial Commissioner held that PW9’s evidence did not stand in isolation but was corroborated by the testimony of other prosecution witnesses, thereby further strengthening the prosecution’s case.

In addition, the learned Judicial Commissioner took into account the evidence of the Forensic Pathologist (PW11), who testified that the cause of death was severe head injury.

Having considered the evidence in its totality, the learned Judicial Commissioner found that there was no doubt as to the identity of the assailant and ruled that there was credible evidence to establish that the accused had inflicted the injuries on the deceased which ultimately led to his death.

The learned Judicial Commissioner had considered the Appellant’s defence. At the defence stage, the Appellant was the sole witness and testified on oath.

The Appellant asserted that on 25 March 2019, at about 3.30 p.m., he went to Pekan Tomborungus, Kudat, where he met several friends, including the deceased, PW9 and PW7, for a drinking session. He claimed that he fell asleep at about 10.00 p.m. and was later awakened by some noise, feeling drowsy and heavy-headed. Upon checking his trouser pockets, he realised that his handphone and wallet were missing. He then demanded the return of those items, which, according to him, 11 angered the deceased. It was his further claim that the deceased punched him, leading to a physical altercation. The Appellant maintained that thereafter he had no recollection of the events that followed.

The learned Judicial Commissioner carefully analysed the Appellant’s defence and found it to be unconvincing. Being the sole defence witness, the Appellant’s account rested entirely on his own testimony. The court observed that his version of events was internally inconsistent and unsupported by the objective evidence.

The learned Judicial Commissioner rejected the Appellant’s assertion that he had no recollection of the events following the alleged altercation. This claim was found to be implausible when weighed against the prosecution evidence, including the circumstances immediately preceding and following the incident. The Appellant’s explanation that he was drowsy and heavy-headed due to intoxication did not sufficiently account for the injuries sustained by the deceased, nor did it displace the prosecution’s narrative.

Although several grounds were advanced in the petition of appeal, the Appellant confined his submissions to three interrelated issues which, taken together, raise a single overarching question, namely whether the learned Judicial Commissioner was correct in fact and law in finding that it was 12 the Appellant who inflicted the injuries to the deceased’s head and face and thereby caused the death of the deceased. The interrelated issues are drafted by the Appellant’s learned counsel as follows: i. whether the learned Judicial Commissioner erred in fact and in law in holding that the prosecution had adduced credible evidence to establish that the Appellant was the person who inflicted the injuries to the deceased’s head and face; ii. whether the learned Judicial Commissioner erred in fact and in law in accepting the evidence of PW7 and PW9 as credible and reliable in identifying the Appellant as the assailant; and iii. whether on the totality of the evidence, the prosecution had discharged its burden of proving the Appellant’s guilt beyond reasonable doubt.

Foremost, it is trite law that an appellate court will not interfere with a conviction unless the balance of evidence is overwhelmingly against it and the prosecution’s case, when assessed in its totality, has failed to establish the charge beyond reasonable doubt. Put differently, appellate intervention is warranted only where the trial judge is plainly wrong in her findings of fact or in her assessment of the evidence (see Lai Kim Hon & Ors v PP [1981] 1 MLJ 84 (FC)).

The burden of proving the offence of murder under sections 300 and 302 of the Penal Code rests throughout upon the prosecution and never shifts. At the close of the prosecution’s case, the court must determine whether a prima facie case has been made out under section 180 of the Criminal Procedure Code, namely whether the evidence, if unrebutted, would warrant a conviction (see PP v Mohd Radzi bin Abu Bakar [2006] 1 MLJ 457 (FC)). However, the establishment of a prima facie case does not discharge the prosecution’s ultimate burden. Upon a consideration of the evidence in its totality, including the defence, the prosecution must still prove beyond reasonable doubt the commission of the actus reus and that the act falls within one of the limbs of section 300 of the Penal Code, including the requisite intention or knowledge. Where a reasonable doubt arises as to the existence of such mens rea, the offence of murder is not made out and the doubt must be afforded to the benefit of the accused (see Dato’ Seri Anwar Ibrahim v PP [2002] 3 MLJ 193 (FC); Lai Kim Hon & Ors v PP (supra)).

We now deal with the first and second issues together.

The Appellant contends that the learned trial Judge erred in relying on the evidence of PW9 and PW7. PW9 was purportedly the sole eye-witness to the incident, claiming to have seen the Appellant punch and kick the deceased’s head and face. The Appellant submits that PW9’s evidence was riddled with inconsistencies and contradictions. Notably, PW9 14 denied being intoxicated despite admitting that all others were drunk, and his account of witnessing the incident due to a “bright bulb” was subsequently disproven by other witnesses (PW8 and PW13) who confirmed the scene was dark. PW9 further admitted during cross-examination that he did not see the start of the quarrel, who provoked it, or the manner in which it unfolded, and he eventually fled before the incident concluded.

The Appellant argues that PW9 fabricated parts of his evidence, including the source of light, to portray himself as a reliable witness, and that his close friendship with the deceased raises the possibility of bias. It is contended that the learned Judicial Commissioner, however, treated PW9’s testimony as firm and positive without adequately addressing these contradictions or considering their effect on his credibility.

With respect to PW7, the Appellant submits that the learned Judge erred in deeming his evidence relevant. It is argued that PW7 did not witness the incident and only provided circumstantial evidence based on what he was told by PW9. The Appellant asserts that PW7’s testimony cannot independently support the conviction and that the learned Judicial Commissioner failed to critically evaluate the reliability and independence of both witnesses.

In essence, the Appellant contends that the learned Judicial Commissioner overlooked fundamental discrepancies in PW9’s account and over-relied on the testimony of witnesses whose 15 evidence was either unreliable or second-hand, thereby rendering the findings of fact unsafe.

In a nutshell, it is the Appellant’s contention that the learned Judicial Commissioner erred in relying on the evidence of PW9 and PW7.

Bearing in mind the trite principle that issues of credibility and demeanour of witnesses fall within the exclusive province of the trial judge (see Dato Mokhtar Bini Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232), we find that the learned Judicial Commissioner’s evaluation of the witnesses’ credibility was neither perverse nor plainly wrong.

We agree with the learned Judicial Commissioner that PW9, the sole eyewitness, gave consistent testimony that the Appellant inflicted injuries on the deceased. PW9 did not deny having consumed alcoholic beverages with his friends, however, he maintained that he was not intoxicated. He testified that he was sober and conscious at the material time, as evidenced by his clear recollection of the incident and his ability to demonstrate in court the Appellant’s acts of kicking and hitting the deceased. PW9 was able to identify the place of the incident at Tomborungus and knew where to seek assistance from PW7, whom he successfully located. Significantly, PW9 returned to the scene together with PW7 and thereafter proceeded to the police station to lodge a police report with PW7.

Upon scrutinizing his evidence in entirety, we find that the learned Judicial Commissioner was right in finding that he was sober and conscious when he witnessed the act and was able to recollect the events of the fatal day. PW9 had consumed only a small amount of alcohol and was awakened when he heard the deceased fall. He affirmed that it was the Appellant who was involved in the altercation, and testified that he saw the Appellant continuously punching and kicking the deceased, hitting the head and face with his hands, and stepping on the deceased’s body.

During cross-examination, PW9 maintained that he witnessed the Appellant’s actions despite the absence of lighting from the bulb, asserting that he was in close proximity to the incident. Interestingly, we find that the Appellant himself in his testimony admitted during cross-examination that although the place of incident was dark, one could easily see the fact and body structure of a person who is near. He further denied the presence of another individual, Herman, at the scene. We find that PW9’s testimony was consistent and affirmative, and that he remained credible throughout, notwithstanding minor discrepancies which do not undermine the substance of his evidence.

As for PW7, his evidence, although circumstantial and derived in part from PW9, corroborates the events and supports the overall narrative. PW7 testified that at about 3.00 a.m. on the fateful day, PW9 contacted him and informed him that the Appellant was assaulting Ampukir (the deceased). Under cross-examination, PW7 maintained that this information originated from PW9. PW7 was the one who suggested that a police report be lodged and that an ambulance be called to assist the deceased. PW7 further testified that upon arriving at the scene at Tomborungus together with PW9 and Ros, the deceased was found lying on the ground. PW7 subsequently identified, by reference to photographs P34(1)–P34(6), the exact location where the deceased was lying.

The learned Judicial Commissioner was therefore entitled to consider both PW9 and PW7’s evidence in assessing the prosecution’s case. We find that Her Ladyship had properly evaluated the reliability and weight of the evidence, and that the prosecution had discharged its burden of proving beyond reasonable doubt that the Appellant caused the fatal injuries.

It bears emphasis that the learned Judicial Commissioner did not rest her findings solely on the evidence of PW9 and PW7. Their testimonies were materially corroborated by the objective medical evidence of the forensic pathologist, PW11. PW11 described multiple external injuries on the deceased, including facial swelling, bleeding from the nasal and oral cavities, and injury to the right ear, with a total of thirteen external injuries recorded.

PW11 opined that the most serious injuries were those to the head. The post-mortem revealed extensive subgaleal 18 haematomas of the scalp, a large right-sided subdural haemorrhage, subarachnoid haemorrhage over the left frontal region, haemorrhages at the base of the brain, multiple cerebral contusions, and marked cerebral oedema (swelling of the brain). In PW11’s opinion, these injuries were consistent with blunt force trauma and could have been caused by impact with a blunt object or surface, including by punching.

The medical findings therefore accord with PW9’s evidence that the Appellant punched and kicked the deceased on the face and head. PW11 further confirmed that the head injuries were fatal. Significantly, PW11’s evidence remained unchallenged under cross-examination.

While the Appellant challenges the credibility of PW9 and PW7, asserting discrepancies and unreliability in their testimonies, we find that the learned Judicial Commissioner appropriately evaluated their evidence within the broader context of the case. The affirmation of PW9’s observations, despite minor discrepancies, aligns with the corroborative medical findings presented by PW11, which highlight the fatal injuries inflicted upon the deceased. The comprehensive assessment of both witness accounts, in conjunction with the objective forensic evidence, supports a conclusion beyond reasonable doubt regarding the Appellant’s responsibility for the tragic events that transpired. Thus, the decision of the learned Judicial Commissioner stands affirmed, reflecting a sound judgment 19 grounded in an accurate interpretation of the evidence presented.

We now come to the third and last issue.

It is contended that the learned Judicial Commissioner erred in finding that it was the Appellant who inflicted the injuries on the deceased, on the basis that no DNA or blood traces of the deceased were detected on the Appellant’s clothing and footwear. The Appellant’s clothes and shoes were seized by the police and submitted to the Chemistry Department for forensic examination. The chemist’s report revealed that no blood belonging to the deceased was found on the items seized and analysed.

Learned counsel for the Appellant argued that, given the nature and severity of the alleged assault, blood spatter would have been inevitable on the Appellant’s clothing and shoes. It was therefore submitted that the findings in the forensic chemist’s report are consistent with the Appellant’s testimony, namely that he had merely punched the deceased and not to such an extent as to have caused the injuries which ultimately led to the deceased’s death.

The absence of bloodstains on the Appellant’s clothing and personal effects does not, in our view, detract from the Prosecution’s case for the following reasons.

First, the evidence established that the Appellant had continuously kicked and punched the deceased on 26.3.2019, acts which subsequently proved to be fatal.

Secondly, PW12 testified that the Appellant’s orange shirt with grey-coloured sleeves, black bluish jeans, a pair of Nike shoes, and grey stockings were only seized by the police on 28.3.2019, two days after the incident.

Thirdly, these items were voluntarily handed over by the Appellant himself.

The Appellant claimed that he had worn the said items on the date of the incident, namely 26.3.2019. In this regard, several matters are of significance. PW9, the sole eye-witness, was unable to recall what the Appellant was wearing on the fatal day. PW7, who was present with both the deceased and the Appellant, was not questioned on the attire worn by the Appellant at the material time. Thus, the only assertion that the Appellant wore the said items on 26.3.2019 emanates from the Appellant himself.

Even if one were to accept the Appellant’s version at its highest, there existed a clear window period of two days, from 26.3.2019 to 28.3.2019, during which the Appellant could have cleaned or otherwise removed any bloodstains from these items.

Taken in its totality, the absence of blood on the Appellant’s clothing and belongings does not in any way exculpate him from the offence, particularly in the face of the overwhelming evidence adduced by the Prosecution, most notably the testimony of PW9, the eye-witness in this case.

As regards the issue raised by the Appellant concerning exhibit R5(E), namely the bloodstained FTA card, and the contention that the blood thereon was never identified by the Chemist and was described as “unknown”, this argument is wholly without merit. Our reasons are as follows.

First, the FTA card containing the bloodstain was collected from the deceased by the forensic pathologist, PW11, during the post-mortem examination for the purpose of DNA profiling. The Chemist had confirmed that the bloodstain on the FTA card belonged to the deceased. In cross-examination, the Chemist explained as to why he did not conduct DNA profiling on the FTA card (R5(5)). It can be understood from his testimony that in DNA analysis, a fundamental procedure entails comparing the DNA profile obtained from exhibits recovered at the crime scene or seized during the investigation with the DNA profile derived from a reference specimen. In the present case, the reference specimen consisted of blood. However, as no bloodstains were detected on any of the exhibits recovered from the scene or on the seized items, including clothing and footwear, no DNA profiling could be undertaken in respect of those exhibits. In the absence of any DNA profile from the 22 exhibits for comparison, it followed that there was no necessity to conduct DNA analysis on the reference specimen submitted, namely the blood specimen marked R5(E).

In the circumstances, the issue raised by the Appellant in respect of R5 (E) is a non-starter and does not advance his case in any meaningful way.

It would be remiss of this Court not to address the Appellant’s plea of intoxication. In this regard, reference must be made to sections 85 and 86 of the Penal Code which regulate the legal consequences of intoxication in the context of criminal liability.

Sections 85 and 86 of the Penal Code are reproduced: “Intoxication when a defence 85.

Save as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal charge.

Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and—

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

the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission. Effect of defence of intoxication when established 86.

Where the defence under subsection 85(2) is established, then in a case falling under paragraph (a) thereof the accused person shall be acquitted, and in a case falling under paragraph (b), the provisions of section 84 of this Code, sections 347 and 348 of the Criminal Procedure Code [Act 593] shall apply.

Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

For the purpose of this and the preceding section “intoxication” shall be deemed to include a state produced by narcotics or drugs.” [71] It is trite law that the defence of intoxication cannot avail an accused person where such intoxication is self-induced. This principle has been reaffirmed by this Court in Kumar Tamang v PP [2021] 1 LNS 27. [72] In the present case, we find that the evidence clearly establishes that the Appellant’s consumption of alcohol was voluntary. There was no suggestion that the Appellant was acting under threat or duress, nor was there any allegation that his drink had been spiked. During cross-examination, the Appellant expressly confirmed that he had voluntarily consumed alcoholic beverages. The Appellant stated: “Q30: Tadi kamu katakan apabila sampai di pondok di Pekan Tomborungus itu, Robert, Espanyol, Ampukit, Ros dan Amran ada di situ dan mereka ajak kamu minum. Saya cadangkan kepada kamu bahawa kamu minum pda masa itu tidak dipaksa dan dengan kerelaan kamu sendiri untuk minum pada masa itu sahaja, setuju? A: Setuju” [73] Significantly, we find that the Appellant was able to give a coherent and detailed narration of the events that transpired before, during, and after the incident. In particular, he testified that he had consumed alcohol with his friends prior to the incident, that he had lost his wallet and handphone, that he had an argument with the deceased, that he struck the deceased, and that thereafter he left the scene by walking along the road. The Appellant’s ability to recount these events with clarity demonstrates that he was conscious and aware of his actions notwithstanding his claim of intoxication. There was no difficulty whatsoever in his recollection of the material events surrounding the commission of the offence. [74] Further, no medical or scientific evidence was adduced in support of the Appellant’s plea of intoxication. As observed by this Court in Kumar Tamang v PP (supra) and in Kenneth Fook Mun Lee v PP [2006] 4 CLJ 359, the mere assertion of intoxication, without corroborative medical evidence, is insufficient to sustain such a defence. [75] On the totality of the evidence, we are satisfied that the Appellant remained in possession of his mental faculties at the material time, despite his assertion that he was drunk. [76] In this regard, we find guidance in the decision of the Federal Court in Abdul Aziz Mohamed Shariff v PP [2010] 5 CLJ 733, where it was held: “[16] … To prove intoxication, it is incumbent upon the defence to adduce sufficient evidence to convince the court that this had rendered the accused incapable of forming the necessary intention or knowledge to commit the crime charged, or that ‘he was by reason of intoxication insane, temporarily or otherwise, at the time when he committed the crime’. [17] The existence of evidence that: (a) the appellant had consumed a large quantity of alcohol or that it was even mixed with toddy, coupled with (b) the presence of a strong smell of alcohol, and the opinions of relatives who are not medically qualified, that the appellant was drunk is insufficient to constitute a possible defence of intoxication against the preponderance of evidence indicating that he had intended to cause death to the deceased.” [77] Applying the above principles to the present facts, we find that the Appellant has failed to discharge the burden of establishing that his intoxication, if any, was such as to negate the requisite intention or knowledge for the offence charged. In the circumstances, the Appellant’s defence of intoxication is without merit and must fail. Conclusion [78] In conclusion, we find ourselves in agreement with and uphold the decision of the learned Judicial Commissioner in respect of the conviction. [79] However, in light of the alternative punishment provided by the Abolition of Mandatory Death Penalty Act 2023, although no submission made by the learned counsel, we are mindful to substitute the death sentence imposed by the High Court to 30 years of imprisonment from the date of arrest and 12 strokes of whipping. Dated: 9 February 2026 Sgd Noorin Binti Badaruddin Judge Court of Appeal Malaysia LIST OF COUNSELS: Counsel for Appellant: Ag Amli Noraufe Bin Ag Nohin [Nohin& Partners (Kota Kinabalu)] Counsel for Respondent: Shamala A/P Jaganathan [Deputy Public Prosecutor Attorney General’s Chamber] CASES REFERRED TO: Lai Kim Hon & Ors v PP [1981] 1 MLJ 84 (FC). PP v Mohd Radzi bin Abu Bakar [2006] 1 MLJ 457 (FC). Dato’ Seri Anwar Ibrahim v PP [2002] 3 MLJ 193 (FC). Dato Mokhtar Bini Hashim & Anor v Public Prosecutor [1983] 2 MLJ

Kumar Tamang v PP [2021] 1 LNS 27. Kenneth Fook Mun Lee v PP [2006] 4 CLJ 359. Abdul Aziz Mohamed Shariff v PP [2010] 5 CLJ 733.