Eling Anak Jambun v Pendakwa Raya (Q-05(M)-195-06/2016)

The appellant was charged with the offence of murder under section 302 of the Penal Code (PC). The charge reads as follows: “Bahawa kamu pada 30.11.2013 jam lebih kurang 4.00 petang bertempat di tepi Jalan Kem menuju ke Sekolah Kebangsaan Setapang Nanga Gaat, Kapit, di dalam Daerah Kapit di dalam Negeri Sarawak, telah melakukan bunuh dengan menyebabkan kematian ke atas UYANG AK JUBONG (L)(KPT: 641210-13-5131) dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan”.

At the conclusion of the trial, the Appellant was convicted and sentenced to death by the High Court at Sibu for the aforesaid offence. Aggrieved by the conviction and sentence, the Appellant appealed to this Court. We had unanimously dismissed the appeal and affirmed the conviction and sentence meted out by the learned High Court Judge. We now give our reasons. B.

At the outset of the trial in the Court below, the learned Deputy Public Prosecutor (DPP) made his Opening Statement (Exhibit E) and tendered the Mutual Agreement During The Pre-Trial Conference Under Section 172A(5) of the Criminal Procedure Code (CPC) (Exhibit F) between the prosecution and the defence. Subsequently in the course of the trial, the parties agreed 3 on and tendered the “Supplementary Statements of Agreed Facts” and “Further Supplementary Statement of Agreed Facts” marked as Exhibit G and Exhibit H respectively.

By virtue section 73AA of the Evidence Act 1950 (EA), the prosecution need not prove the facts as agreed by the parties in Exhibits F, G and H. Therefore, the salient facts of the prosecution’s case can be garnered from the agreed facts and in the learned High Court Judge’s grounds of judgment which can be summarized as follows:

4.1 On 30th November 2013 between 4.00 p.m. to 5.00 p.m. one Jingong ak Karong (PW1), a 70 year old Iban, met his son-in-law, the Appellant, at the side of the road called Camp Street leading towards Sekolah Kebangsaan Setapang Nanga Gaat, Kapit.

4.2 PW1 and the Appellant both hailed from the same longhouse called Rumah Sait which was located across the river and not far from the place where they had met at the road side. An argument developed between PW1 and the Appellant who at that time had a shotgun slung over his shoulders. Uyang ak Jabong, the deceased, happened to be passing by and approached them, and was shot dead with the shotgun that the Appellant was carrying.

4.3 After the deceased had fallen to the ground, PW1 seized the shotgun (Exhibit P1) from the Appellant. The Appellant left the scene and went back to the longhouse. PW1 handed the shotgun to one Irong ak Anggau, who passed it on to Chendan ak Dato, then to Rawing ak Salang and on to Mala ak Nutong who kept it in her house in the 4 longhouse in an upstairs room. Mala ak Nutong is the wife of the Tuai Rumah, namely Sait ak Labun.

4.4 At 5.50 p.m. the same day, Constable Mohd Shahrul Fikri bin Che Ismail received a telephone call from Tuai Rumah Sait ak Labun informing the police of the shooting incident.

4.5 The next day on 1.12.2013, the police, led by ASP Chua Su Wan, came to the longhouse at about 11.00 a.m. and arrested the Appellant at his house at Room No.16 and also seized the shotgun from the custody of Mala ak Nutong together with one expended cartridge (Exhibit P4).

4.6 The post mortem over the body of the deceased had been conducted on 5.12.2013 at about 9.45 a.m. at Sibu Hospital by Dr. Jamil Dolkadir (PW3). As a result of the post mortem, a report was prepared by PW3 (P28). PW3 found that the cause of death of the deceased was due to the gunshot wound at the chest, penetrating the deceased’s heart and right lungs. C. FINDINGS OF THE TRIAL JUDGE AT THE END OF THE

At the end of the prosecution’s case, and upon the maximum evaluation of the prosecution’s evidence, the learned Judge found the prosecution had made out a prima facie case against the Appellant. In doing so, the learned Judge referred to oft quoted cases of Looi Kow Chai & Anor v PP [2003] 1 CLJ 734, Balachandran v PP [2005] 2 MLJ 301 F.C. and PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457. 5

The learned Judge made the following findings of facts, amongst others:

6.1 that the prosecution had proved that the deceased had died on 30.11.2013 at about 4.00 p.m., and the identity of the deceased vide the testimony of PW3 (wherein in his post mortem report P28 the deceased’s cousin, Mapang ak Adong, had identified the deceased) and PW1;

6.2 accepted the testimony of PW3, who conducted the post mortem on the deceased, that the cause of the deceased’s death was due to the gun-shot wound at the chest penetrating the deceased heart and right lungs;

6.3 there were direct evidence adduced by the prosecution that the Appellant had caused the fatal injuries to the deceased. PW1 and the Appellant were at the crime scene at the material time. Based on the direct evidence of PW1, it was made out that the Appellant had taken aim at the deceased and pulled the trigger resulting in the gun-shot wound at the chest of the deceased from which he died;

6.4 it was an agreed fact between parties which have been set out in Exhibit F that the shotgun (P1) was the weapon that was used by the Appellant in the incident. It was an agreed fact that the shotgun belonged to the Appellant. It was also an agreed fact that the deceased was the victim of the incident in which the Appellant had used the shotgun as a weapon. It was an agreed fact that the injury sustained by the deceased in the incident was a gunshot wound at the 6 chest. By virtue of section 73AA of Evidence Act 1950, these admitted facts were deemed proven;

6.5 there was sufficient credible evidence to establish that the shotgun was functional, there was no necessity to produce a ballistic test report and for these reasons no adverse inference could be drawn against the prosecution;

6.6 the prosecution had proved that the Appellant had intended to cause the death of the deceased. There was the eye witness account from PW1 who saw the Appellant taking aim at the deceased with the shotgun and pulling the trigger. This was a deliberate act clearly evincing intention to cause death. The nature of the injury inflicted on the deceased and the weapon used indicated that there was intention to cause bodily injuries which were sufficient in the ordinary course of nature to cause death.

In view of the above, the learned judge found that the prosecution had succeeded in proving all the essential ingredients of the offence under paragraph 300 (c) of the PC and had established a prima facie case against the Appellant. The Appellant was ordered to enter his defence. D.

The Appellant gave sworn evidence and was the sole witness for the defence. The Appellant did not deny that he had with him his shotgun which he carried with the sling on his shoulder; that the shotgun was in very poor condition but he always carried it around to hunt wild animals; that he and PW1 had an argument at the material time; and that he had seen the 7 deceased approaching them as they argued. The Appellant, however, testified that the deceased tried to assist PW1 by attempting to grab the shotgun from the Appellant. The Appellant also stated that he and PW1 were still arguing when the shotgun somehow was accidentally discharged and accidentally shot down the deceased. E. FINDINGS OF THE TRIAL JUDGE AT THE END OF DEFENCE’S

The learned Judge found the Appellant’s defence did not raise any reasonable doubt against the prosecution’s prima facie case. That the Appellant’s account of how the shotgun had accidentally discharged she found to be inherently incredible as there was no reason, and the Appellant had not provided any, for the shotgun to accidentally discharge. The Appellant’s evidence that the deceased had only tried to grab his shotgun but did not succeed in grabbing it as the Appellant and PW1 continued to argue and the shotgun was still with the Appellant. The Appellant did not say that the shotgun had accidentally went off when the deceased tried to grab the shotgun. Therefore the learned Judge found that the Appellant had not provided any reason for his shotgun to have accidentally gone off whilst verbally arguing with PW1. Further, the Appellant’s testimony during examination-in-chief was contradictory and diametrically opposite to what he said during cross-examination. During examination-in-chief, the Appellant testified that the deceased had come along, saw PW1 and the Appellant arguing, stated that he (the deceased) was not afraid of the Appellant’s shotgun and tried to assist PW1 by grabbing the shotgun. Whereas during cross-examination, the Appellant testified that while PW1 and he were 8 arguing, the deceased had suddenly come and stood behind him (the Appellant). The Appellant denied that the deceased was trying to stop the quarrel. The learned Judge found this contradiction to be material as it was the prosecution’s case that the Appellant had in a deliberate act, taken aim at the deceased and pulled the trigger. Even during re-examination, the Appellant could not explain this contradiction. In the face of this material contradiction, the learned Judge was in no doubt that the Appellant was prefabricating when he said under cross-examination that he was not really aware of the presence of the deceased. The Appellant was therefore found guilty of the offence as charged and convicted of the same. The learned Judge sentenced the Appellant to death as mandated under section 302 of the PC. F.

Before us, the main issue raised by the counsel for the Appellant was whether the shotgun had accidentally been discharged and hit the deceased. Therefore, it was submitted, if it was true that the shotgun had accidentally been discharged, the Appellant could not be said to have caused the injuries or that the injuries were the result of the act of the Appellant and consequently the Appellant did not have the requisite intention under section 300, in particular paragraph (c) of the PC. Instead, the Appellant should be exonerated from the charge under section 80 of the PC.

The Appellant, in his sworn testimony at the defence stage, had stated that he normally carried the shotgun with the sling on his shoulder to prevent the shotgun from accidentally discharging. At the material time, the Appellant was having an argument with PW1 when the deceased came and tried to 9 assist PW1. When the Appellant was still arguing with PW1, the shotgun was accidently discharged. The Appellant was not aware of the direction of the nozzle of the shotgun as he was still having an argument with PW1. It was submitted that the learned Judge had misdirected herself on the burden of proof on the Appellant to prove that there was an accidental discharge of the shotgun when she found that the account given by the Appellant was inherently incredible.

We agreed with the learned Judge that the prosecution had proven a prima facie case against the Appellant for the offence as charged based on the direct evidence of PW1 and corroborated by the evidence of the pathologist, PW3. PW1 in his evidence had told the Court that he saw the Appellant holding the shotgun and pointed the shotgun towards the deceased and pulled the trigger. The shot onto the deceased’s chest was well aimed and the injury inflicted on the deceased was at the vital part of the deceased’s body. PW3’s testimony, supported by his post mortem report (P28), stated that the deceased sustained only one injury, that is the gunshot wound at his chest, and the deceased did not suffer any other injury that could contribute to the cause of his death.

We agreed with the learned DPP’s submission that the Appellant’s act was intentional. The Appellant admitted that he slung his shotgun on his right shoulder on that day. Even if the shotgun accidentally misfired or discharged the bullet, the bullet would have gone up to the sky and not at the deceased’s chest. It was the Appellant’s own testimony that he and PW1 were merely having a verbal argument. The deceased also did not succeed in grabbing the shotgun and the shotgun was still with the Appellant. Hence, there was no reason for the shotgun to accidentally discharge. 10

The evidence of PW1 was strong and was never discredited even though it was challenged by the defence. During examination-in-chief, PW1 testified as follows (see page 65 Volume 2, Record of Appeal) : Can you tell the court how he shot of fired toward Uyang ak Jubong? The shotgun was pointed. Can you demonstrate? He held the gun and pointed it at Uyang ak Jubong and pulled the trigger.” During cross-examination, PW1 testified as follows (see pages 69, 70, 71, same Volume): I put it to you that when you were arguing with Eling, Uyang came to intervene? Yes, I agree. I put it to you that at that moment Uyang wanted to chase and had a fight with Eling? I disagree. At that moment Uyang wanted to grab the shotgun from Eling? No, I disagree. I put it to you that the accused never pointed the shotgun at the deceased, Uyang. I disagree. I put it to you that the accused’s shotgun misfired at that moment when the said Uyang approached him to grab the shotgun. I disagree. … 11 I put it to you that the accused never aimed his shotgun towards Uyang. No, it is only happened at that time. … I agree that Eling shot Uyang.” During re-examination, PW1 stated as follows (see page 73-74, same Volume): When Eling shot Uyang ak Jubong did he aim or point at Uyang ak Jubong? … Did he aim at Uyang ak Jubong? Yes, he did.” Therefore, we were of the view that the learned Judge was correct in finding that the Appellant’s account of how the shotgun had “accidentally” discharged to be inherently incredible. With the same token, the Appellant was mistaken in submitting that the learned Judge had misdirected herself by imposing the burden of proof on the Appellant to prove the accidental discharge of the shotgun. PARAGRAPH 300 (c) PC

As for the issue raised by the Appellant that the Appellant’s actions did not fall within paragraph 300 (c) of the PC, we refer to the Indian Supreme Court case of Rajwant Singh v State of Kerala AIR 1966 SC 1874 (which referred to the third clause to section 300 of the Indian Penal Code, which is in pari materia with ours) where it was held at page 1878 as follows: 12 “(11) The third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In this clause the result of the intentionally caused injury must be viewed objectively. If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequences or not…” [Emphasis added]

This Court had the occasion to explain the meaning of paragraph 300

(c) of the PC in the case of Aziz Mat Shah v PP [2010] 4 CLJ 305, per Abdul Malik Ishak JCA (as he then was), at paragraph 40, as follows: “[40] In regard to the third ingredient concerning the third limb to s.300 of the Penal Code, we categorically say that the learned High Court judge was correct in her assessment of the available evidence to invoke the third limb – that would be limb (c), to s. 300 of the Penal Code. Towards this end, it is germane to refer to the case of Virsa Singh v. State of Punjab AIR 1958 SC 465 where V Bose J, enumerated the ingredients to be proved under the third limb to s. 300 of the Indian Penal Code which is in pari materia with our third limb to s.300 of the Penal Code. There, at p.467, his lordship had this to say: To put it shortly, the prosecution must prove the following facts before it can bring a case under s.300 ‘thirdly’. First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved. These are purely objective investigations. 13 Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s.300 ‘thirdly’. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.” [Emphasis added] 14

Based on the authorities cited above, we then refer to the testimony of PW3 during examination-in-chief, at pages 121, 123, Volume 2, Record of Appeal, who explained the cause of death of the deceased as follows: “Q: Based on exhibit P28, what is the finding of your post mortem? Can I read from my report, My Lady? Judge: Yes. You tell us where you are reading, from page what. Now I am reading on page 1 under the findings of external examination – read. Now I am reading on page 2 under the internal examination – read. Now reading from Respiratory System and so on. Based on that findings, what is the cause of death of the deceased? The cause of death was gunshot wound at chest, penetrating heart and right lungs. There were no other injuries seen on the deceased’s body? Yes My Lady. From your internal and external examinations, did the deceased suffer any disease [sic] or illness that might cause the death of the deceased other than the gunshot wound at the chest penetrating heart and right lungs? No. … What is the chance of survival of the deceased who suffered the gunshot wound? Nil. 15 Can you explain what you said ‘nil’? Because it penetrated the heart, the atrium the right chambers of the heart and that one will immediately cause bleeding into the thorax, immediate bleeding and sudden blood pressure will drop and it will make the heart stop and eventually shortly after that the brain will not receive oxygen and the deceased will become unconscious and died. Can this injury sufficient in its ordinary course of nature to cause death to the deceased? Yes What is the probable weapon to inflict this injury? Shotgun.”

We therefore were of the view that paragraph 300 (c) of the PC had been proven by the prosecution against the Appellant.

That being the case, we were satisfied that the Appellant’s defence of accidental discharge of the shotgun could not be sustained under section 80 of the PC as submitted by the Appellant. G.

We therefore found no merits in this appeal. We were in complete agreement with the learned Judge when she found that the prosecution had proven a prima facie case against the Appellant and that the Appellant had failed to raise any reasonable doubt against the prosecution’s case. We found that the prosecution had proven their case beyond a reasonable doubt 16 against the Appellant. We were satisfied that the learned Judge had not misdirected herself in any way to occasion an error either on the law or on the facts to warrant appellate intervention. We accordingly found the conviction of the Appellant and his sentence safe. We therefore unanimously dismissed the appeal and affirmed the conviction and sentence imposed by the learned trial judge. sgd (UMI KALTHUM BINTI ABDUL MAJID) Judge Court of Appeal Malaysia Putrajaya Dated : 23.08.2019 Counsel/Solicitors For the Appellant : Foster Bangau Tetuan Bangau & Company Advocates For the Respondent : Wan Shaharuddin Wan Ladin Deputy Public Prosecutor Attorney General’s Chambers