Koyo (Indonesia) (BA-45B-15-05/2022)

Koyo, an Indonesian national (the accused), is charged with an offence under section 302 of the Penal Code. The original charge against the accused states as follows: 23/02/2026 11:05:23 Kand. 133 Pertuduhan Bahawa kamu pada 18/04/2021 antara jam 10.00 pagi hingga 10.45 pagi di hadapan RAE Industries Sdn Bhd Lot 7777, Jalan Bukit Cerakah, Seksyen U9, 40150 Shah Alam, dalam daerah Petaling, dalam Negeri Selangor Darul Ehsan telah didapati membunuh Rolan (No. Passpot: AU 231283) dan oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan. Hukuman: Gantung sampai mati atau penjara tidak kurang dari tiga puluh tahun tetapi tidak lebih empat puluh tahun dan sekiranya tidak dihukum mati, boleh dihukum dengan sebatan tidak kurang daripada 12 sebatan.

The accused pleaded not guilty when the charge was read to him, and the Defence attempted to advance the defence of grave and sudden provocation at the prosecution's stage.

At the conclusion of the case for the prosecution, this Court decided that the defence of grave and sudden provocation lies with the accused to prove that the fatal injuries inflicted by the accused on the deceased were as a result of the provocation that the accused lost control of himself.

Upon maximum evaluation of the evidence by the prosecution witnesses and documents tendered in Court, the Court ruled that the prosecution had successfully proved all the ingredients of the offence and that a prima facie case had been made out. The accused was then called to enter his Defence.

Having considered the totality of the evidence at the end of the trial, the Court was satisfied that on the balance of probabilities, the injuries inflicted by the accused on Rolan were as a result of a grave and sudden provocation under Exception 1 to section 300 of the Penal Code.

Consequently, the Court ruled that the accused is convicted for an offence of culpable homicide not amounting to murder under section 304(b) of the Penal Code and sentenced him to nine years of imprisonment from the date of arrest,

18.4.2021.

Aggrieved by the decision, the prosecution filed a notice of appeal to the Court of Appeal.

Hence, the grounds of judgment of this Court.

The prosecution called fifteen (15) witnesses to prove its case as follows: i. PW1 Corp Rafiah binti Isa ii. PW2 Corp Mohd Ramy bin Rosli iii. PW3 Corp Mohd Hafiq bin Sulaiman iv. PW4 Dr Shatishraj Jothee (forensic pathologist) v. PW5 En Rozam Azli Amir (paramedic) vi. PW6 Corp Nor Adlan bin Mat Nazeri vii. PW7 Corp Muhd Rizuan viii. PW8 Insp Nazi bin Abdullah (Forensic officer) ix. PW9 L/Corp Abdul Halid bin Abd Manap (photographer for the post-mortem conducted at HAS, Klang) x. PW10 Insp Vignesh Kumar a/l Subramaniam (investigation officer) xi. PW11 Mohd Firdaus bin Abu Bakar xii. PW12 Abdul Hail Ahmad Tarmizzi (DNA analyst from JKM) xiii. PW13 Chee Wai Kent (IT specialist) xiv. PW14 Sivasangari a/p Annamalai (landowner's daughter) xv. PW15 Annamalai a/l Kuppan (landowner)

The accused, an Indonesian national, was staying with his wife (Siti) at the workers' quarters (rumah kongsi). Rolan, the victim/deceased, also stayed at one of the rumah kongsi with his wife. The accused's wife and the deceased were the employees of Lai Pan and worked for Lai Pan at his nursery.

As an employer, Lai Pan paid the rental of the rumah kongsi, water and electricity bills (utility bills) of his workers through Siti (the accused's wife). Whilst Annamalai a/l Kuppan (PW15) was the landowner on whose land the rumah kongsi was built. Sivasangari a/p Annamalai (PW14) is Annamalai's daughter.

On the morning of 18.4.2021, at approximately 10.45 am, Corp Rafiah binti Isa (PW1) received a call from Mohd Firdaus bin Abu Bakar (PW11), who reported a death in the RAE Industrial area, Lot 777, Jalan Bukit Cerakah, Section U9, Bukit Jelutong, Shah Alam (the place of the incident).

The deceased was identified as Rolan. What led to the death of Rolan is explained next.

The prosecution's narrative unfolds where, on the same day, in the morning before the tragedy happened, at approximately 7.30 am, the accused informed Annamalai a/l Kuppan, the landowner (PW15), that Lai Pan wanted to meet PW15 at the rumah kongsi on the rental and utility bills, which PW15 had not received.

At 8.00 am, Lai Pan, the accused and the deceased, met with PW15 at PW15's house. Also present during the meeting was Sivasangari a/p Annamalai, PW15's daughter

During the discussion between PW15 and Lai Pan, the deceased interrupted several times, which disrupted the discussion. The accused then shouted at the deceased and said, "Rolan kamu diam. Biar uncle dan Lai Pan bincang.”

In retaliation, the deceased shouted at the accused vulgar and abusive words "engkau pukimak, babi, anjing". According to PW14, the accused appeared visibly angry, stood up and walked away. After the discussion between PW15 and Lai Pan ended, they dispersed from PW15's house.

After that, PW14 heard a noise from the direction of the rumah kongsi not far from PW14's house. PW14 rushed to the accused's home and found that the accused's wife, Siti, and an unknown man were taking their belongings to flee the rumah kongsi.

PW14 asked Siti about the whereabouts of the accused and the deceased, but Siti only replied that she did not know. PW14 went to look for the accused and the deceased in the factory area and saw the accused sitting near the scene of the incident. PW14 saw that the accused's body was covered with blood.

While PW11, who reported the death of Rolan, stated that on the morning of the incident, when he was waking up, someone (an aunty) came to where PW11 was staying and informed him that there was a fight at the rumah kongsi.

PW11 was staying around the rumah kongsi, and the distance between his house and the accused was about 200 meters.

PW11 and his friend, named Din, went to the rumah kongsi, but saw nothing happened there. PW11 and Din later drove to the surrounding area near the factory. On their way back to the rumah kongsi, PW11 saw the body of the deceased at the place of the incident.

PW11 saw the accused, known as Gondrong to PW11, holding a sickle. SP11 knew the accused because the accused was a friend of Din, who tried to calm the accused down and took the sickle from the accused's hand. PW11 called 999 and reported the incident.

PW5, an assistant medical officer, received information from the Medical Emergency Coordination Centre (MECC) and moved to the location of the incident. Upon arriving at the scene, PW5 confirmed that there was a case of "obvious death" where the deceased had died at the scene based on the stab wounds to the waist and injuries to the deceased's neck.

The prosecution's main contention is that all the elements of the offence have been successfully established.

The prosecution also argued that there was circumstantial evidence which could prove that the accused killed the deceased.

The reports with laboratory numbers 21-FR-B-07297 and 21- FR-B-07453, which the Court marked as exhibit P43 and the evidence given by chemist PW12 have revealed a positive result to link the accused as the person who killed the deceased.

Analysis conducted by PW12 found the DNA of the accused and the deceased on the bloodstains found on the singlet "L(a)". The same applies to the DNA trace on sickle No. 3 (P27), which contains DNA from the accused and the deceased.

This evidence further corroborates the CCTV evidence, which shows the accused using a sickle had slashed the deceased 12 times at the scene.

PW11, in his evidence, stated that when he saw the accused at the scene, the accused was seen holding a sickle. PW11 also identified P27 through the photos exhibited P5 (42) to show that the weapon used when killing the deceased was the same as that found in P19.

PW2 also stated in his testimony that when he arrived at the scene with the police team, the accused was seen to be only 1 meter away from the sickle (exhibit P27). PW2 also stated that the accused himself had shown P27, which was used to kill the deceased.

The evidence from PW4 himself stated that the injuries suffered by the deceased, namely 14 cuts, caused severe internal injuries to the deceased and were the cause of his death.

The cuts made by the accused to the deceased had caused the deceased to lose a lot of blood, which was the cause of the deceased's death.

The prosecution invokes section 300(c) of the Penal Code, as there was an element of intent on the part of the accused to cause bodily harm or injury to the deceased, and that the injury would typically have caused the death of the deceased.

The prosecution contended that the Defence had failed to prove the defence of grave and sudden provocation under Exception 1 to section 300 of the PC.

The defence, on the other hand, argued that the prosecution failed to prove a prima facie case against the accused.

The Defence further argued that the accused did not intend to murder the deceased. But there was a grave and sudden provocation by the deceased. The abusive words "engkau pukimak, babi, anjing "uttered by the deceased were so provocative that the accused lost his self-control and murdered the deceased.

The focal point of the defence's main contention was that there was initially a verbal provocation and later intrusion by the victim with a weapon (screw driver) into the accused's house. The defence had raised the defence of grave and sudden provocation to the investigation officer (PW11).

The defence alleged that the deceased had grabbed the sickle from the deceased's rumah kongsi and subsequently chased the accused.

The defence further argued that this is consistent with the DNA profiles found on the sickle that identified the deceased as the major contributor. The defence also argued that there was no indication of any premeditation or deliberation on the part of the accused. The incident took place in the heat of passion. Thus, the accused had no intention to murder the deceased.

The CCTV (exhibit P14 and P18(1)(A)) is inadmissible simply because the prerequisites of section 90A of the Evidence Act were not fulfilled by the prosecution, as there was no evidence that the CCTV was produced by a decoder which was in good working order and operating in all respects throughout the recording process. THE COURT ANALYSIS AND FINDINGS AT THE END OF THE

Section 302 PC provides:

"Punishment for murder Whoever commits murder shall be punished with death"

Section 300 PC outlined the circumstances in which an accused is charged with murder if – i. The act by which death is caused is done with the intention of causing death. ii. It is done to cause such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. iii. it is done to cause bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or iv. The person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.

Thus, it is the Court's duty to determine whether the prosecution has successfully proven a prima facie case against the accused. See also PP v Megat Sharizat Megat Shahrur [2011] 8 CLJ 893.

The Defence made no serious challenge to the elements of the charge proven by the prosecution that - i) The deceased/deceased is Rolan (No. Passport: AU 231283), who has died. ii) The deceased died as a result of the injuries inflicted on him. PW14 had identified the accused, although at the time of the incident, the accused had long hair and appeared slightly different with short hair in Court during the trial. However, PW14 had positively identified the man in the dock as the accused. iii) The injuries sustained by the deceased were caused by the accused. PW4 prepared a post-mortem report (exhibit P10), and the post-mortem examination revealed twenty-five (25) external injuries on the body consisting of three (3) abrasions, three (3) bruises, five (5) incised wounds and fourteen (14) slash wounds. And, in his opinion, he concluded that the cause of death was multiple slash wounds to the deceased's body, which, in the ordinary course of nature, caused the death. iv) The slash wounds were caused by an object that was sharp and heavy, such as a sickle, which is consistent with the weapon used to kill the deceased. It follows that the reports with laboratory numbers 21-FR-B-07297 and 21-FR-B-07453, which were marked as exhibit P43 and the evidence given by chemist PW12 have revealed a positive result to link the accused as the person who killed the deceased. v) The accused committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.

Therefore, the Court is satisfied that the injuries sustained by the deceased led to the death of the deceased. The 14 slash wounds were so fatal that they caused the death of the deceased, and this finding is based on the consistent and reliable testimonies of the prosecution witnesses.

Nevertheless, the Defence's main contention at this stage was that the accused did not have the intention to commit the crime. The Defence alleged that the words "pukimak, babi, anjing" uttered by the deceased towards the accused were so provocative that the accused lost control, and the Defence sought refuge under the distinct exception as provided in Exception 1 to section 300 PC.

Exception 1 to section 300 PC provides- Exception 1 – Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:

that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person;

that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant;

that the provocation is not given by anything done in the lawful exercise of the right of private defence.

What then is provocation? The Penal Code does not define "provocation", and the defence relied to the Court of Appeal decision in Rikky Purba v PP [2014] 4 MLJ 569 which has guided the Courts as to the meaning of provocation, where Zawawi Salleh JCA articulated the principles of law on the defence of sudden and grave provocation by dealing in depth the meaning of provocation and illustrated the scenarios which could tantamount to a grave and sudden provocation where His Lordship said as follows: "[23] Provocation has not been defined in the PC. The common law definition of provocation is best expressed by the classic direction of Delvin J in R v Duffy [1949] 1 All ER 932: Provocation is some act, or series of acts done (or words spoken) & which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused to subject to passion as to make him or her for the moment not master of himself. [24] Provocation operates as a partial defence to murder aimed at the reduction of that crime to the lesser offence of culpable homicide not amounting to murder. For a defence of provocation to succeed, the Court must be satisfied that the accused was deprived of his or her self-control at the time of killing (the subjective test) and that this was the result of wrongful conduct serious enough to provoke a reasonable person (the objective test). [25] Provocations may vary from the less serious cases (eg verbal provocations) to those involving very serious wrong doings (eg provocation involving physical violence). Provocations involving different forms and degrees of wrongdoing may equally support a partial defence to murder, provided that the requirement of loss of self-control is also satisfied. [26] In Budhi Singh v S State of HP, AIR 2013 SCW 457, the Supreme Court of India had this to say:

The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the Court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury. [27] Thus, no straitjacket formula can be evolved to categorise what acts may amount to provocation much less grave and sudden provocation. [28] What would amount to "grave and sudden provocation" will depend on the facts of each case. Dr Sri Hari Singh Gour9s Penal Law of India, Vol 3 (Law Publishers (India) Pvt Ltd, (11th Ed) Revised, 2011), declares 8sudden9 as follows (at p 2498): What it is said that the provocation must be "sudden" it is implied that it should have all immediately preceded the homicide in point of time. A person may repeated or continuous provocation arouse another to state of mind when the provocation immediately preceding the act is only the last straw. [29] In Mahmood v State AIR 1961 All 538, Oak J had noted (at pp 538 3 539): Whether the provocation was sudden or not does not present much difficulty. The word "sudden" involves two elements. Firstly, the provocation must be unexpected. If an accused plans in advance to receive a provocation in order to justify the subsequent homicide, the provocation cannot be said to be sudden. Secondly, the interval between the provocation and the homicide should be brief. If a man giving the provocation is killed within a minute after the provocation, it is a case of sudden provocation. If the man is killed six hours after the provocation, it is not a case of sudden provocation."

In addition, this Court was also referred by the prosecution to the Court of Appeal decision in Untung v PP [2023] 4 MLJ 929, where the Court held : [38] Based on this statutory provision, it is now settled law that in order to bring a case within the exception, it is imperative that the following facts be established. First, the accused must have committed the act whilst being deprived of the power of self-control. Secondly, he must have been so deprived because of the provocation. Thirdly, the provocation must have been grave and or voluntarily provoked by him or her as an excuse for doing the act. And fifthly, the provocation must not have been given by anything done in obedience to the law or by a public servant in the lawful exercise of his powers as such, or by anything done in the lawful exercise of the right of private defence. [39] Further elaboration on what considerations could amount to a grave and sudden provocation may be found in the Federal Court decision in Che Omar bin Mohd Akhir v Public Prosecutor [2007] 4 MLJ 309; [2007] 3 CLJ 281 where the Nik Hashim FCJ, for the Court, held: [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 MLJ 211; [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 Ed) 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

MLJ 251; [1988] 1 CLJ 143; [1988] 1 CLJ Rep 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 idiosyncrasies of the accused: Madhavan v State of Kerala [1966] AIR 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 accused; and (ii) might cause in a reasonable man, a sudden and temporary loss of self-control as the 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 selfcontrol; 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. (See Ratanlal & Dhirajlal, p 1192; Vijayan v Public Prosecutor [1975] 2 MLJ 8; [1975] 1 LNS 189)."

In the context of the case, the judicial propositions derived from the above decisions and the provisions of the Evidence Act can be summed up as follows –

Whether there was a grave and sudden provocation is a question of fact.

Burden of proving that the accused comes within the Exception 1 of section 300 lies with the accused on the balance of probabilities – see Section 105 Evidence Act.

"sudden" can be established on two grounds: the provocation must be unexpected to reflect suddenness, and the interval between the provocation and the murder must be brief.

The Court may take into account the habits, manners and feelings of the class or community to which the accused belongs.

Returning to the issue at hand, it is crucial for this Court first to determine whether the accused had established the defence of grave and sudden provocation, as decided in PP v Bakri bin Ruka [2024] 2 MLJ 1.

In that case, the Court of Appeal had allowed the appeal by the prosecution and set aside the learned High Court Judge's conviction under section 304(a) of the Penal Code and decided that the accused was guilty of the original charge under section 302. The Court held – "Since the respondent (accused) did not testify about provocation or losing control, it was plainly not open for the Judicial Commissioner to conclude that he killed the victims in a fit of rage due to provocation."

Therefore, following the judicial proposition in the case cited, the Court is of the view that the accused must prove the defence of grave and sudden provocation as provided explicitly under section 105 of the Evidence Act.

The evidence shows that the Defence had put to the Investigating Officer (PW10) of the accused's defence of grave and sudden provocation. However, PW10 denied the suggestion made by the defence.

Other than that, PW10 also disagreed with the defence suggestion that it was the deceased who first attacked the accused using the screwdriver. On this, the defence in the written submissions (enclosure 90) also agreed that, without any evidence from the accused, the questions advanced by the Defence remained as suggestions.

This Court is mindful of the attempt advanced by the defence during the prosecution's case, where it was merely suggestions and not a piece of evidence unless it is proven by a witness, as observed by Abdul Rahman Sebli JCA in Ali Hosseinzadeh Basher v PP [2015] 1 CLJ 918: "It must be observed that what counsel puts or suggests to a witness in cross-examination is not evidence. They are merely suggestions and to give notice to the prosecution that the defence has a different version of the events. They prove nothing and will remain nothing unless confirmed by the witness or by the party on whose behalf the suggestions are made."

At this stage, there was no indication of premeditation or deliberation on the part of the accused, and that the incident occurred in the heat of passion, to substantiate the defence's argument that the deceased's grave and sudden provocation.

PW14 and PW15 testified that the accused was the first to shout at the deceased and ask him to keep quiet while PW15 and Lai Pan were discussing the outstanding rental for the rumah Kongsi and the utility bills.

It was after that incident that the deceased uttered the abusive words "pukimak, anjing, babi" to the accused. The accused appeared angry and walked away. The accused did not retaliate by attacking the deceased there and then. But instead, the accused walked away from the discussion and back to his rumah kongsi.

At this juncture, as submitted by the prosecution, the accused's subsequent conduct, coupled with the cooling-off period of almost 1.5 hours from the shouting episode and the deceased's use of abusive words, did not support the defence's central contention that there was a grave and sudden provocation from the deceased's abusive words towards the accused.

Without any evidence of the accused's defence of grave and sudden provocation, and no evidence to prove the extent of the accused losing control, that the accused killed the deceased in a fit of rage due to provocation, and the proof that the deceased alleged attacked on the accused using the screw driver, the Court found that there was no evidence to support the accused's defence of the special exception to section 300 PC.

Even so, the CCTV footage also shows that it was the accused holding a sickle who was chasing after the deceased until the deceased fell. When the deceased fell, the accused was swinging the sickle more than once and slashing the deceased's neck several times, which caused incised wounds to the neck. The fatal injuries inflicted on the deceased led to the deceased's death.

At this stage, the nature of injuries sustained by the deceased and, in the absence of anything else, pointed to the accused's intention to kill the deceased. See Sainal Abidin bin Mading v PP [1999] 4 MLJ 497.

On the evidence of CCTV, which the defence strongly objected to, this Court found that there was no merit in the technical argument advanced by the defence. The prosecution called PW13, who has access to and complete control of the CCTV, to give evidence regarding it. PW13 testified that the original recording from the decoder and the one PW13 downloaded were the same as the exhibits P44 and P18. See Mohd Khairy bin Ismail v PP [2014] 4 MLJ 317; [2014] 1 LNS 412.

In conclusion, after having given maximum evaluation to the evidence of the prosecution's case, this Court finds that the accused had committed an act that comes within the limb of section 300(c) of the PC, which constitutes murder. The Court is satisfied that the prosecution has proven all the elements of the offence and has established a prima facie case. Accordingly, the Court ordered the accused to enter his defence to the charge.

The Court applied the landmark decision on the judicial propositions regarding the test of maximum evaluation of the prosecution's witnesses' evidence and the documents at the end of the prosecution's case in arriving at the finding of this Court. See section 180 of the Criminal Procedure Code, Balachandran v PP [2005] 1 CLJ 85; PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457. THE ACCUSED'S DEFENCE OF GRAVE AND SUDDEN

The accused chose to give evidence from the witness stand. The defence also called Au Yong Lai Pan (SD2)/employer of the deceased, and Siti, apart from SD1. SD1's defence was that of grave and sudden provocation.

The accused prepared a witness statement, which the Court marked as "WSD1". SD1 also testified that he arrived in Malaysia in 2013 to seek employment. Started his first employment in Johor Bahru to earn a living to support his family in Indonesia.

In January 2016, the accused moved to Shah Alam and worked as a contractor. At that time, the Accused met his wife, Siti Suraini (commonly known as "Siti"). Siti worked for Au Yong Lai Pan (SD2) as a landscaper. Rolan ("the Deceased") was also Siti's coworker and worked under SD2.

In January 2021, the Accused and Siti moved into the rumah kongsi built and provided by SD2, comprising a row of units located at Lot 7782-A, Bukit Cerakah, BT3, 40100 Shah Alam. SD2 paid all the rental expenses and utility bills.

The workers' quarters consisted of four (4) units, which, at all material times, were occupied by: (1) the Accused and Siti;

Irwanto; (3) another Indonesian whose name the Accused could not recall; and (4) the Deceased and his wife.

As confirmed and corroborated by SD2, although he could not recall the occupants' names, he confirmed that all four (4) units were occupied at the time of the incident.

On 18.04.2021, at about 8:00 am, when the Accused was at home, SD2 came to the rumah Kongsi and asked him to go to the landowner's house, Annamalai a/l Kuppen (commonly known as "Uncle") (PW15), to discuss the outstanding rental and utility bills at the accused's house.

At SD2's request, the accused went to PW15's house to convey the message. However, PW15 instead asked the accused to inform SD2 to come to his house. The accused then returned home and informed SD2 to go to PW15's house.

Thereafter, SD2 and the Accused walked to PW15's house. A discussion took place in front of PW15's house with the accused, the Deceased, SD2, PW15 and PW14 (PW15's daughter). The discussion was mainly about the outstanding rental and utility bills, which SD2 had paid to Siti, but PW15 had yet to receive the payments.

During the discussion, the accused did not intervene much. The accused merely sat quietly, facing the outside, and let the others discuss. While SD2 and PW15 were trying to resolve the said issues, the Deceased repeatedly interrupted and disrupted the discussion by asking PW15 to show the original utility bills.

To prevent the Deceased's further interruptions, the Accused told the Deceased, 'Rolan you diam. Biarkan Uncle dan Lai Pan bincang dulu' in a composed and calm tone.

However, dissatisfied with the Accused's statements, the Deceased raised his voice and uttered vulgar and abusive words, 'Engkau pukimak! Anjing! Babi!' towards the Accused, in the presence of PW15, PW14 and SD2.

According to the Accused, based on his religious beliefs, he felt deeply humiliated, mainly because the insults and obscene/vulgar word (Pukimak) used by the Deceased were not only directed at him but also demeaned his mother's honour.

Thereafter, the Accused returned home. At that time, Siti was inside the house, and Irwanto also came to the Accused's house to hang out and chat. They were inside the house near the main door.

Shortly thereafter, at about 10:00 am, the Deceased suddenly intruded into the Accused's house armed with a long screwdriver to attack him. The Accused managed to evade the attack, but he was taken by surprise and felt fearful as it happened unexpectedly.

At that moment, the Accused initially thought the Deceased had come to apologise for his earlier conduct and words. However, instead, the Deceased had come with the intention to harm the Accused. The Accused, Siti and Irwanto immediately ran out of the house.

The Deceased continued to chase after the Accused. At that time, the Accused fled while turning back several times to check on the Deceased's whereabouts. While the Accused was turning back, he saw that the Deceased was not only holding a screwdriver but also a sickle, which the Accused recognised as one that was kept outside the accused's house.

As the Accused repeatedly turned to check on the Deceased's distance, he fell into a drain near the rumah kongsi. The Deceased then attempted to attack the Accused with the sickle, but the Accused managed to avoid it and kicked the Deceased's right elbow, causing the sickle to fall from his hand.

The Deceased continued to curse and insult the Accused with the abusive words, "Pukimak Engkau! Anjing! Babi!", while attempting to attack the Accused with the screwdriver that remained in his hand.

At that point, the Accused was overwhelmed with intense anger and had truly lost self-control. In a state of uncontrolled mind and emotion, the Accused picked up the sickle that had fallen to the ground and attacked the Deceased.

The Accused could not recall how the attack happened or how many times he had attacked the Deceased. At the material time, the Accused had no intention or premeditated plan to kill the Deceased.

Shortly thereafter, the Accused regained awareness and realised what had occurred. He saw the Deceased lying on the ground in front of him, covered in blood. The Accused could neither comprehend nor explain why he acted in such a way.

The Accused did not attempt to flee. The Accused remained at the scene, still in shock. Soon after, the Accused's friend, Sidin, approached, tried to calm him down and took the sickle from his hand.

The Accused further testified that at the time of the incident, he was in a state of extreme emotional disturbance and mental impairment as a result of the Deceased's continuous provocations, which were not minor but excessive.

The cumulative provocations were degrading and insulting words directed not only to the Accused by referring to the accused as a dog and a pig, but also to his mother, followed by physical attacks with a screwdriver and a sickle, accompanied by continuing verbal insults when the deceased attacked the accused in the drain.

As submitted by the defence, the entire incident occurred due to the cumulative provocations by the Deceased, which caused the Accused to lose control of his senses and to act out of control without any intention to kill.

The Accused had no premeditation, prior intention or grudge against the Deceased. The Accused deeply regrets what happened and repents for his actions on the day of the incident.

On the argument of no mens rea and sudden and grave provocation raised by the defence, the prosecution, on the other hand, argued that according to PW14's evidence, the accused had shouted "diam" at Rolan with a harsh tone when the deceased interrupted the discussion.

PW14's testimony was consistent with PW15's testimony. The prosecution disagreed with SD1's defence of provocation and contended that the accused's defence was a mere bare denial. To the Prosecution, SD1 had the intention of murdering the deceased and that the injuries inflicted on the deceased were fatal.

The duty of the Court at the end of the trial is to consider all evidence adduced before it and shall decide whether the prosecution has proved its case beyond a reasonable doubt.

The prosecution's narrative had to be re-evaluated, with maximum evaluation, together with the additional defence narratives from the defence's witnesses under oath. See PP v Iskandar Mohamed Yusof [2006] 6 CLJ 379. Noor Azman Abidin v PP [2014] 1 CLJ 58.

Hence, based on the authority of a Federal Court decision in PP v Surbir Gole [2017] 1 MLJ 549, this Court must determine whether the accused's defence falls within the ambit of Exception 1 to section 300 of the Penal Code, and this is a question of fact based on the surrounding circumstances of the case.

The judicial proposition is extremely clear that the burden is on the accused to prove that the injuries inflicted on the deceased were caused by grave and sudden provocation. The accused must prove not only that the provocation was grave, but also that it came suddenly.

Now, the question before this Court is whether the accused's defence amounted to a bare denial, as submitted by the prosecution. On the contrary, the defence's main contention was that the injuries inflicted on the deceased were caused by the deceased's cumulative provocation, which qualified as grave and sudden provocation under Exception 1 to section 300 of the Penal Code.

The Court is guided by the Federal Court decision in Surbir Gole (supra), which has decided that cumulative provocation was an element in the defence of grave and sudden provocation. The Federal Court held: "[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 inclined 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'. [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 in 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."

Applying the Federal Court decision in Subir Gole (supra), where the facts of the case are quite similar to the facts of the instant case, the Court is of the view that the situation in which the accused faced would be so provoked as to lose his self-control.

The Court is of the view that there is no dispute that the accused had inflicted the fatal injuries on the deceased. The prosecution argued that PW14 testified that the accused was the one who started the commotion by shouting "Rolan, kau diam" in a harsh tone. Still, the accused denied it when the prosecution cross-examined him.

Judging from the facts of the case, the Court is of the view that though the accused shouted the words "Rolan kau diam, biar uncle bincang dengan Lai Pan".

The Court is of the view that the deceased had no reason to hit back by uttering such vulgar and abusive words in malay language "engkau pukimak, anjing, babi".

By general definition, "puki" refers to the "female private part/vagina" and "mak" refers to mother. In the context of the case, the word "pukimak" uttered by the deceased refers to the accused's mother's private part.

Those words unquestionably violate moral values, which the Court believed were taboo in society. What's more, the deceased uttered the words in the presence of SD2, PW14, and PW15. The words uttered by the deceased in malay language "babi, anjing" had referred to the accused as an animal, a dog and a pig.

By saying those words in front of those people, the accused was certainly humiliated verbally by the deceased, and in fact, the accused indeed appeared angry, as testified by PW14 and PW15. But the accused walked away from PW15's house.

Consistent with the decision in Subir Gole (supra), this Court had taken into consideration that those words uttered by the deceased had affected the habits, manners and feelings of the class or community to which the accused belongs. Those words had disgraced the accused's mother's honour and his own.

In addition to that, the investigation officer (PW10) also confirmed that there was provocation by the deceased. The accused did not attack the deceased when the deceased uttered the abusive words. The accused walked away, and that was the first episode in the event involving the deceased's initial provocation towards the accused.

The prosecution at the prosecution's stage argued that there was a cooling-off period and that, as a result, there was no provocation. Nevertheless, authorities are clear that the opportunity to cool off does not mean that the defence of provocation will fail. See Subir Gole (supra) and Rikky Purba (supra). THE DECEASED DNA PROFILE AS A MAJOR CONTRIBUTOR

At about 10.00 am, after SD2 and the accused dispersed from the meeting at PW15's house, PW15 testified that he saw the deceased holding a screwdriver and walking towards the accused's rumah kongsi.

PW15 further testified that he saw the deceased smiling. Be that as it may, PW15 indeed saw that the deceased was holding a screwdriver, which is consistent with PW10’s the investigation officer's (PW10) testimony that, from his investigation, it was the deceased who wanted to attack the accused first.

Now, the weapon which had caused the fatal injuries to the deceased was a sickle, which the accused was holding, based on the evidence of CCTV tendered in Court.

PW10 gave evidence that the accused was the one who had taken the sickle from the rumah Kongsi and was chasing the deceased from the rumah Kongsi until the factory area, where the accused had inflicted the fatal injuries on the deceased based on his observation of the CCTV footage.

However, there was no evidence to support PW10's version of the narrative that the accused was the one who had grabbed the sickle from the accused's house, as there was no eye witness neither was there any circumstantial evidence to establish a nexus between the sickle and the accused to support PW10's version.

It was the defence's narrative that the deceased was the one holding the sickle, which the accused recognised as one kept outside his house. The Accused testified that at first, he thought the deceased had come to apologise for his earlier conduct and vulgar and abusive words.

Instead, the Deceased had come holding a screwdriver. Seeing that, the Accused, Siti and Irwanto immediately ran out of the house.

The accused testified that the Deceased continued to chase after the Accused. At that moment, the Accused fled while turning back several times to check on the Deceased's whereabouts.

While the Accused was turning back, he saw that the Deceased was not only holding a screwdriver but also a sickle, which the Accused recognised as one that was kept outside his house.

The Court is of the considered view that if the accused had grabbed the sickle from the rumah Kongsi as alleged by PW10, the accused's DNA profile ought to be the major contributor found on the handle of the sickle for this Court to be convinced of PW10's testimony.

Nevertheless, PW12 testified that the deceased's DNA was the major contributor to the DNA profiles found on the handle of the sickle in the absence of any blood stains. The Court is of the view that the accused's narrative is more convincing than PW10, that the deceased was the one who had grabbed the sickle in front of the rumah Kongsi.

Another plausible conclusion that the Court could make is that if the accused were the one who grabbed the sickle from the rumah Kongsi, the accused would have been the major contributor of DNA on the handle of the sickle, and the accused would have immediately murdered the deceased at the rumah Kongsi.

Thus, having heard and seen the accused give his evidence under oath in Court, a pertinent question for this Court is whether the accused was a credible witness.

It is the Court's duty at this stage to assess the witness's credibility. Thus, for the Court to determine the accused's credibility regarding his defence, the critical question is whether the accused was telling the truth. See Tan Kim Ho & Anor v PP [2009] 3 CLJ 236. NO EVIDENCE THAT THE ACCUSED HAD PRE-PLANNED THE INCIDENT AND NO MENS REA ON THE PART OF THE

Based on the facts of the instant case, the prosecution had not proven that the incident was a pre-planned intention by the accused.

The weapon used (the sickle) was not brought by the accused. But the deceased grabbed it from the rumah Kongsi.

The accused also did not flee from the place of the incident. Those facts, as stated above, distinguished the instant case from the cases referred by the prosecution in Mahadzir bin Yusof & Anor v PP [2011] 1 MLJ 297, and Chan Kwee Fong v PP [2010] 1 MLJ 441,

The aggressor here was the deceased. It was the deceased who had firstly verbally humiliated the accused with vulgar and abusive words, and later went to the accused's house with a screwdriver in his hand, with the DNA analysis showing that the deceased was the sole contributor of the DNA profile obtained from the handle of the screwdriver. THE ACCUSED LOST HIS SELF-CONTROL AS A RESULT OF

The Court is of the view that the manner in which multiple wounds inflicted by the accused on the deceased were a direct consequence of the provocation and clearly indicative of great rage and lose of self-control.

The Accused could not recall how the attack happened or how many times he had attacked the Deceased. At the material time, the Accused had no intention or premeditated plan to kill the Deceased.

Shortly thereafter, the Accused regained awareness and realised what had occurred. He saw the Deceased lying on the ground in front of him, covered in blood. The Accused could neither comprehend nor explain why he acted in such a way.

The Accused did not attempt to flee. The Accused remained at the scene, still in shock. Soon after, the Accused's friend, Sidin, tried to calm him down and took the sickle from his hand.

The facts of the instant case are relatively different from the decision in Mahadzir bin Yusof & Anor (supra), as referred by the prosecution. In that case, after the commission of the murder at the crime scene, the accused and his accomplice ran away and were missing until the police arrested them.

The Court of Appeal held that the conduct of the accused and the accomplice was relevant under section 8 of the Evidence Act 1950. But in the instant case, the accused did not run away. Instead, after the tragedy, the accused was seen by PW11 sitting on a stone near the deceased's body with a blank mind.

Returning to the facts of the case, the Accused further testified that at the time of the incident, he was in a state of extreme emotional disturbance and mental impairment as a result of the Deceased's continuous provocations, which were not minor but excessive.

Adopting a similar approach by the Federal Court in Suber Gole (supra), this Court concludes that from the nature of the attack, the fatal injuries, the sequence of events and the short period of time within which they took place and the accused's reaction after the incident was that the accused attacked the deceased whilst deprived of self-control as a result of grave and sudden provocation.

Having evaluated the evidence at the close of the defence case, the Court found insufficient evidence to establish the offence of murder under section 300(c) of the Penal Code;