(d) if 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." [26] It is evident from the four clauses above that clauses (a), (b) and (c) contemplate intention in the form stated. Clause (d) applies to a situation where there is no intention to cause death. It only requires proof of knowledge that the act is likely to cause death (see Kenneth Fook Mun Lee 24 v PP [2007] 2 MLJ 130; Yeap Boon Hai v PP [2010] 2 MLJ 433). So, the crucial issue which lies at the heart of this appeal, in this context, is whether the learned Judge was right to conclude that the appellant had committed murder within the contemplation of clause (d) of s. 300 of the Penal Code. [27] Now, there was no evidence from the appellant to suggest that he had no intention to cause the death of the deceased. His evidence was that he was not the one involved with the kidnapping and subsequent death of the deceased. However, even though there was no evidence forthcoming from the appellant, it remained the duty of the court to consider if the elements of the charge of murder under s. 300 of the Penal Code had been established beyond reasonable doubt. It is a fundamental principle in criminal law that the burden of proving any charge is on the prosecution throughout the case and never shifts to an accused person. If the prosecution fails to discharge this burden, the case made out may be one of culpable homicide not amounting to murder as depicted in s. 299 of the Penal Code. [28] In the instant case, it may be fair to accept that the intention all along was to kidnap the deceased for ransom. The evidence disclosed that a 25 demand for ransom was made to the mother of the deceased (SP16). It turned out that before any ransom could be handed over, the deceased had died. So, in our view, whether the offence of murder had been established depends upon whether the requisite knowledge under clause (d) of s. of the Penal Code has been established. In other words, the question is firstly, whether the act of the appellant was so imminently dangerous that it must, in all probability, cause death and secondly, whether the act was committed without any excuse for incurring the risk of causing death. [29] These two questions, in our view, were adequately considered by the learned Judge. In this context, the evidence of the pathologist, Dr. Emizam Mohamadon (SP26) was considered by the learned Judge as follows: “[39] Menurut keterangan Dr Emizam ,SP26 tindakan memasuki cebisan kain dan tali mop untuk menyumbat mulut mangsa sehingga menjadikan suatu gumpalan adalah "fatal in nature" (boleh mengakibatkan kematian) sama ada gumpalan itu diletakkan diatas lidah atau menolak lidah ke belakang. Tindak balas pengeluaran air liur akan menjadikan gumpalan kain basah dan mengembang sehingga menutup kedua-dua rongga antara hidung dan saluran pernafasan serta mulut dan saluran pernafasan. Mulut mangsa juga dilekat dan ditutup dengan pita tape.” 26 [30] As alluded to earlier, the investigating officer (SP29) found the deceased tied to a chair with his hands and feet also tied together with a nylon rope, electric wire and cable tied to the chair. The deceased’s eyes and mouth were closed with cloth and masking tape. Taken together with the evidence of the pathologist (SP26), this was a clear case of gagging which was an imminently dangerous act almost certain to lead to death especially in the case of a young boy who had his hands and feet bound as well. There was no chance for the deceased to free himself and relieve his distress or even call for help. [31] Any person of average intelligence will know that the circumstances in which the deceased was put under was imminently dangerous to the life of the deceased. The appellant’s subsequent telephone message to SP16 was compelling evidence that the appellant knew that it was an imminently dangerous act. The message stated: “Awak mahu buang masa. Boleh. Awak anak boleh tahan berapa lama tanpa air, makan, panas”. [32] On the second question, there was no justification whatsoever for the act of the appellant. It was beyond doubt that his act was committed without any excuse for incurring the risk of death as contemplated by clause (d) of 27 s. 300 of the Penal Code. To the contrary, the act of the appellant was reprehensible and wholly inexcusable on legal or moral grounds. In our view, the learned Judge had come to the right decision in convicting the appellant on the charge of murder under s. 302 of the Penal Code. Conclusion [33] In the circumstances, and for the reasons we have given, we were of the view that there were no merits in the appeal. Having scrutinized the whole of the evidence, we were convinced that the convictions of the appellant to be wholly safe. On the question of sentence for the kidnapping offence under s. 3(1) of the Kidnapping Act 1961, it was unfortunate for the learned Judge to take the view that there was only one sentence of death when under that provision there was in fact an alternative sentence of imprisonment for life. [34] Nevertheless, considering the facts of the case, what stood out was the fact that the appellant had acted in a most callous and reprehensible manner and having utter disregard to the state of the deceased and the risk of death. There were no mitigating circumstances in favour of the appellant. 28 Considering the evidence in its entirety, we considered that the death penalty, rather than life imprisonment, was warranted in this case. Accordingly, the convictions and sentences were affirmed. Dated: 09 May 2019 Signed (HARMINDAR SINGH DHALIWAL) Judge Court of Appeal Malaysia Counsel / Solicitors: For the Appellant: Tan Teck Yew (M/s Chan Tse Yuen & Co) For the Respondent: Faizah bt Mohd Salleh Timbalan Pendakwa Raya Jabatan Peguam Negara Malaysia