(d) the offender must not take undue advantage or act in a cruel or unusual manner.” [12] The learned JC then made a finding that there was indeed a sudden fight between the two. “In this case the possibility of a sudden fight could not be ruled out. Having to endure the insult from the deceased for quite sometime until immediately before the fight, when the deceased made certain remarks regarding the arrest of the Accused’s wife and children, this final insult could have prompted the Accused to respond. However upon aggressive reaction from the deceased a fight ensued where the Accused had stabbed the deceased. Thereafter the Accused seem to have lost control of himself only to realize later that he had stabbed the deceased on his chest. His testimony is consistent with the evidence of PW6 who testified that he heard footsteps of someone walking quite fast in the showroom before he heard the two of them quarrelling. I would also observe that the quarrel started not long after the Accused entered the showroom and when he heard the loud footsteps. Considering these evidence in its totality, I am of the opinion that there was a sudden fight between the accused and the deceased in the showroom on that fateful day.” 10 [13] However, having considered the evidence of the animosity between the appellant and the deceased, the appellant’s search for the deceased shortly before the incident and right after reporting for work as well as carrying the said knife which was taken from the workshop, His Lordship found that the appellant “... was prepared for any eventualities when he met the deceased.” His Lordship rejected the reason given by the appellant why he carried the knife, that is to cut the grass because, inter alia, PW6 was never cross-examined by the defence that gardening was part of his job scope as a security guard and it was unreasonable to use a knife to do that and not a grass cutter. Therefore, the learned JC concluded that the appellant’s act was a premeditated one and that he had acted in a cruel manner for he not only confronted the unarmed deceased with the knife but stabbed him at his vital organ. Thus, said His Lordship, the defence of sudden fight was not proven on a balance of probability. [14] Alternatively, the learned JC also considered the defence of grave and sudden provocation which His Lordship also rejected because firstly, mere quarrelling was insufficient to show provocation in the absence of evidence of the words uttered before the scuffle took place. Secondly, the insults from the deceased had been going on continuously for at least a month and the appellant was patient then. A 11 reasonable man would not lose self-control because there was sufficient time to cool down, reasoned His Lordship further before concluding as follows: “In my opinion the evidence show that the feel of anger has been building up within the Accused which prompted him to look for the deceased on that particular day. At this stage the Accused’s act was a premeditated one and the fact that he brought the knife with him shows that he was prepared for any eventualities. In the circumstances I am of the opinion that the defence of sudden and grave provocation is not applicable to the Accused.” The Appeal [15] The two issues raised before us can be condensed into one which is the failure to consider that the defence of both sudden fight and grave and sudden provocation had been proven by the appellant. Learned counsel for the appellant submitted that the learned JC was wrong to hold that the defence had failed to put the appellant’s defence of sudden fight to the prosecution witnesses because this has been disclosed in the police report of PW6 (Exh P18) who said in the said report that he heard the commotion between the two of them before witnessing them grappling with each other. Citing the Federal Court in Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 MLJ 209, he submitted that such failure does not “... relieve the prosecution of its 12 duty of establishing the charge against the accused beyond any reasonable doubt.” [16] As for the other defence, learned counsel referred to the evidence of PW7 which he said was not considered by His Lordship and which shows that he was his normal self then and was only gravely provoked later by the deceased. This evidence at page 80, lines 1 – 4 of Volume 2 of the Appeal Records reads: Tadi kamu ada cerita si Jeffrey lalu belakang kamu dan bertanya kamu ada nampakkah si Lasah. Waktu dia menanya macamana nada suaranya? Suara dia biasa sahaja.” [17] Equally, there was failure on His Lordship’s part, submitted learned counsel further, to consider the evidence of the defence witness, Zulkarnain Bin Ramlee (DW2) who was an assistant storekeeper of the company and whose evidence at pages 212 – 213 and 215 of the Appeal Record Volume 2 as highlighted by learned counsel reads as follows: Sepanjang kamu kenal Jefri waktu bekerja di sana, apa kerja-kerja yang dia buat? Dia jaga premis, kadang-kadang dia kasi bersih keliling-keliling pagar, rumput, itu saja. 13 Seingat kamu, kamu pernah nampak dia kasi bersih rumput keliling pagar guna apa? Tidak berapa pasti, saya pernah nampak dia pakai gunting, guna pisau untuk potong rumput. Jadi kamu memang pernah nampak Jefri bersihkan rumput guna gunting dan pisau? Pernah nampak. ... ... ... Jadi tentang si Jefri tugasnya memotong rumput, semua di Tan Chong pun tahu dia buat begitu? Ya, sebelum ini security yang dulu pun begitu juga. [18] The defence had been proven because, submitted counsel for the appellant, his client had been degraded continuously by the deceased from the first month he started working with the company on account of his race (Bajau) and calling not only him but his wife and children ‘Pala’u’. Grave And Sudden Provocation [19] We would start our consideration of this last defence first by referring to the Federal Court’s decision in Public Prosecutor v Surbir Gole [2017] 1 MLJ 549 which made the legal position clear at paragraphs 33 – 39 of the judgment as follows:- 14 “[33] In the case of Lorensus Tukan v Public Prosecutor [1988] 1 MLJ 251; [1988] 1 CLJ 143; [1988] 1 CLJ Rep 162, referred to by the Federal Court in Che Omar’s case, Seah SCJ, in delivering the judgment of the Supreme 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). [34] It appears to us that the term ‘cumulative provocation’ used or referred to in the High Court and the Court of Appeal in this case, and the cases referred to or cited in both courts, was used in relation to a series of provocations each of which is not by itself grave. It is only when all the provocations in the series are accumulated that the sum total of them becomes grave provocation. [35] We believe that Che Omar’s case has made the legal position clear with regard to cumulative provocation of the nature described in para 34 above. We ought to be reminded that the defence of ‘cumulative provocation’ does not exist in our criminal law, and therefore we are not persuaded that it is a permissible defence to s 300 of the Penal Code. Only the defence of grave and sudden provocation is specifically provided for in Exception 1 to s 300 in the Penal Code. We are not incline to agree to any departure from the established law. [36] We wish to reiterate, however, that provocation to an accused person that is ordinarily and by itself not grave may be grave enough to fall within Exception 1 to s 300 when, after all the circumstances of the case before and during that provocation are taken into consideration, it can be concluded that ‘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’. 15 [37] To be able to come within Exception 1, the provocation that an accused person is relying on must not only be grave, but must also be so sudden as to cause the accused person to ‘lose his self-control’, and act in spontaneous reaction to the grave provocation. [38] It is the kind of suddenness that, to use the words in the illustrations to Exception 1 to s 300 of the Penal Code, ‘excited’ the accused person to ‘sudden and violent passion’ or to ‘violent rage’. [39] Ultimately, however, whether the provocation is grave and sudden is a question of fact.” (emphasis added) [20] Applying the said principle to the facts of this case, even though we totally agree with the appellant’s counsel that the continuous tauntings of the deceased by the use of the derogatory word “Pala’u” by the deceased was very insulting and which understandably incited such feelings of anger in the appellant, but as held by the Federal Court in the cited case, the defence of “cumulative provocation” does not exist in our criminal law – only grave and sudden provocation. That defence was therefore rightly rejected by the learned JC because even though the provocation was grave, it was definitely not sudden. [21] As for the defence of sudden fight, as rightly found by the learned JC and submitted by the learned DPP, this was not raised with the prosecution witnesses especially PW6 and the Investigating Officer, 16 ASP Ridzuan Bin Khalid (PW10) who were in the best position to verify the probability of the same, in particular the latter as he was the first person who heard their altercation. The law on the effect of such a failure or omission has been made clear by the Federal Court in Tan Kim Ho & Anor v Public Prosecutor [2009] 3 CLJ 236 at page 253 as follows: “[33] In our adversarial system of justice, the duty of each party is to show that his case is the truth. This is done by him adducing his own witnesses to support his contention. When it is the plaintiff or prosecutor who is adducing the evidence, his witnesses are subject to cross examination by the defence or the accused person. When a prosecution witness makes a statement of fact which is disagreed to by the defence it becomes the defence’s duty to, in whatever way, put to the plaintiff or prosecution witness that what the witness has said is not true. In addition, he could also use the plaintiff’s or prosecution’s witnesses to adduce evidence to support his defence and to indicate what his defence is. This he is required to do to enable the plaintiff or prosecution to bring out evidence to disprove what the defence intends to adduce. If the defence does not in any way indicate by cross examination of those facts, those statements made by the plaintiff’s or prosecution’s witnesses must be accepted as true. Even if the plaintiff’s or prosecution’s witness does not say anything relating to the defence case, it is still the duty of the defence to bring out his case during plaintiff's or prosecution’s case. In fact this duty to disclose his defence during the prosecution’s case is more relevant in criminal cases than in civil. This is particularly so when the plaintiff or prosecution’s witness is relevant to the fact in issue. In criminal cases, prosecution does not know what the defence is going to be, except in alibi, until the defence adduced its evidence.” (emphasis added) 17 [22] Furthermore, even if we were prepared to excuse the said omission and consider the fact that the police report of PW6 alluded to a fight between the two, nonetheless the strict requirement of the law on that defence as pointed out earlier from the judgment of the learned JC must be complied with. Given its importance we would now reiterate and rephrase that requirement which must be satisfied by the defence in order to discharge the legal burden on its shoulders, and that is, that the fight must not only be sudden but there must not be any premeditation and that the act was committed in a heat of passion without the appellant taking undue advantage or acting in a cruel or unusual manner. This burden was obviously not discharged in this case for we agree with the learned JC that there was evidence of premeditation on the part of the appellant which was not disproved by his mere normal reaction when asking for the appellant’s whereabouts from PW7 as highlighted earlier and neither by the evidence of DW2 which justifies his possession of the knife. We say this because the best and more reliable evidence in respect of the appellant’s job scope would obviously come from PW6 but even if it was true that the appellant had previously use the knife to cut the grass, it does not mean that he never intended to use it as a weapon in this case. The reason we said so is because the appellant simply had no reason to look for the deceased that morning and doing so with the knife in his possession as admitted 18 by him (at lines 1 – 2, page 194 of Volume 2 of the Appeal Record) given his seething anger and ill-feelings towards the deceased, justifies the conclusion that his act was a pre-meditated one. [23] Furthermore, as per PW6’s evidence, the appellant had indeed acted in a cruel manner for he had even continued his attack on the deceased after the latter fell on the ground. Thus, the physical fight between the appellant and the deceased may have developed suddenly as alleged by the appellant following the altercation between them and justifying the learned JC’s finding that there was a sudden fight between the two but it was not a sudden fight in the legal sense of the words as envisage in the said Exception 4. [24] For the reasons stated above, we have decided to affirm the decision of the learned JC and dismissed the appellant’s appeal. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 24 January 2020 19 Parties Appearing: For The Appellant Abdul Gani B. Zelika (Messrs Johari, Zelika & Amin) For The Respondent Muhammad Azmi Mashud, DPP (Attorney-General’s Chamber) Cases Referred To: