Menase Ladang v Pendakwa Raya (S-05(M)-85-02/2017)

The appellant was charged with an offence of murder under section 302 of the Penal Code. The charge reads as follows: “Bahawa kamu pada 29.10.2014 jam lebih kurang 1.30 petang, bertempat di sebuah kebun sayur di Kg Masilou Kundasang Ranau, dalam daerah Ranau, di dalam negeri Sabah, telah membunuh seorang perempuan bernama Hamida Laka P/29 tahun Bangsa Timor Passport: U537057. Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan.”

At the end of the trial, the learned High Court Judge at Kota Kinabalu (‘learned trial Judge’) found the appellant guilty, convicted and sentenced him to death by hanging.

Aggrieved by the said conviction and sentence, the appellant had appealed to this Court.

We heard the appellant’s appeal on 16th of July 2018, at the end of which we found no merit in the appeal and we unanimously dismissed the appellant’s appeal. We now furnish our reasons.

The factual matrix of the prosecution’s case was well encapsulated in the learned trial Judge’s grounds which can be summarised as follows. Hamida Laka (‘the deceased’), a 29 year old Timorese was working in a Criminal Appeal No: S-05(M)-85-02/2017 3 vegetable farm belonging to Koh Yee Enterprise in Kg Mesilou, Ranau. Meanwhile, the appellant worked at a nearby vegetable farm.

On that fateful day, Lukas Ladang (PW2) and his co-worker, Kanisius Subang (PW3) were having their lunch break. While they were resting, they heard a female voice shouting for help. PW2 went to investigate and was followed by PW3. When they reached there, PW2 saw a woman who was badly injured. PW2 tried to lift her up but was unable to do so.

The deceased told PW2 that the appellant had stabbed her. PW2 went after the appellant but unable to find him whereby PW2 turned back to attend to the deceased. Meanwhile PW3 came to help and was told again by the deceased that the appellant had stabbed her.

Not long after, the deceased’s brother by the name of Randi Bin Dahlan (PW4) came to her aid and saw PW3 helping the deceased. The deceased once again told PW4 that she was stabbed by the appellant.

The deceased then was sent to Klinik Kesihatan Kundasang for treatment and was treated by the medical assistant, Eric Paul (PW5). Upon his examination, PW5 found that the deceased suffered injuries on her mouth, chest and as well as on her back. The deceased told PW5 that she was stabbed by a man because she rejected his love for her. Due to serious injuries suffered by the deceased, she was transferred to Ranau Hospital by ambulance for further treatment and there she was treated by Dr. Mex Molen Marcus and assisted by a medical assistant, Fatin Haswani Bte Norakim (PW10). Criminal Appeal No: S-05(M)-85-02/2017 4

At the Ranau Hospital, the deceased told the doctor, PW10 and the nurses that a man had come to her house, a dispute erupted between them and she was stabbed as a result. The deceased sustained two stab wounds to the chest and one incised wound on the right side of the upper lip and underlying gum. Later on the same day at about 4.30 pm on 29.10.2014, the deceased succumbed to her injuries.

In the meantime, Marwan Ali (PW8), a farmer, received a phone call from Marianus Tukan (PW7), a gardener of Koh Yee Enterprise, to look out for the appellant as he might attempt to escape. PW8 waited by the side of the road. Shortly after the phone call, PW8 saw the appellant coming in a Toyota Hilux car and immediately apprehended him and brought him to Mince Samuel’s (PW9) house.

While in PW9’s house, the appellant cleansed himself and had asked for a clean shirt. The appellant soaked the shirt he was wearing in the bathroom of PW9’s house. Not long after, Inspector Ahmad Fathie Bin Md Salleh (PW15) came and arrested the appellant at his house. PW15 as well seized the murder weapon, a parang (P25) from the appellant who had led PW15 to discover the weapon.

The forensic pathologist, Dr. Jessie Hiu (PW1), conducted the autopsy on the body of the deceased on 30.10.2014. Her external examination revealed that the deceased suffered the following injuries: “1. An incised wound measuring 2 cm long on the right side of the upper lip and the underlying gum. Criminal Appeal No: S-05(M)-85-02/2017 5

An L-shaped stab wound on the antero-later aspect of the right chest about 14 cm from the midline and about 121 cm from the right heel. The short limb measured about 1.5 cm long and the long limb measured about 2 cm. Subcutaneous tissue was seen protruding out from the wound. The wound was directed backward and downward cutting the right fifth rib, the intercostals muscle, the lower margin of the upper lobe of the right lung, the right hemidiaphragm and the right of the lobe liver. The estimated depth of the wound was 14 cm.

A stab wound measuring about 3 x 0.5 cm (about 3.1 cm long when the margins were closed) orientated vertically on the back of the left chest about 1 cm from midline and about 126 cm from the left heel. The lower end of the wound was sharply cut whilst the upper end was extended upward. The wound was directed forward cutting the left seventh and eight ribs and the lower lobe of the left lung.” [14] In her testimony, PW1 opined that the cause of death was hypovolaemic shock due to or as a consequence of stab wounds on the chest (injury no. 2 and no. 3 as above). PW1 further testified that the two injuries to the chest were fatal in nature and the chances for the deceased to survive was very low as the deceased sustained injuries to both lungs, the injuries causing massive bleeding and at the same time air escaped into the chest cavities. Her evidence shows that the two injuries to the chest which damaged both lungs were sufficient in the ordinary course of nature to cause death. PW1’s post mortem report was produced and marked as ex. P7. Criminal Appeal No: S-05(M)-85-02/2017 6 [15] At the end of the prosecution’s case, the learned trial Judge was satisfied that the prosecution had proven each and every ingredient of the offence charged against the appellant. Her Ladyship found that the prosecution had established a prima facie case against the appellant on the proffered charge of murder and henceforth ordered the appellant to enter upon his defence. The Defence [16] The appellant elected to give evidence under oath. His evidence can be summarised as follows:

The appellant had befriended the deceased for about 3 years. They were secretive about their relationship status until the year 2012, when the appellant went back to his hometown to relay the news to his family about his marriage plans. In August 2014, he went back to Kundasang to work in a farm not far from where the deceased worked.

On that fateful day, the appellant had persuaded the deceased to meet up with him to discuss about their future together. The appellant claimed that it was the deceased who contacted him first. According to the appellant, he did not want to marry the deceased because of their religious status. The deceased had wanted the appellant to convert his religion to Islam but the appellant would not agree.

The appellant’s story was that the deceased was very persistent about the conversion issue and when the appellant rejected, the Criminal Appeal No: S-05(M)-85-02/2017 7 deceased got upset and wanted to kill herself. The appellant claimed that the deceased had carried a knife with her. She tried to stab the appellant on the neck but the appellant managed to push away the knife which accidently hit her. The deceased’s second attempt to stab the appellant ended with the injuries on the deceased’s lips. Not long after that she fell to the ground and on the knife which resulting in injuries to her neck.

Immediately after the incident, the appellant took the 10 inch knife and threw it away. He also had no intention of helping her. He then tried to escape to Kundasang town by hitch hiking a Hilux which happened to be in the vicinity. Along the way, he was stopped by PW8 and was brought to PW9’s house.

In PW9’s house, he changed his clothes as he claimed that he was drenched from the rain. Around 5.00 p.m. he left PW9’s house and went back home. That night, he was arrested by a team of police officers led by PW15.

The police had seized a knife which the appellant claimed that was not the one used during the incident. The police took away his Sony Ericcson handphone, his shirt and pants as well. [17] As we alluded to earlier, at the conclusion of the trial, the learned trial Judge concluded that the appellant had failed to raise any reasonable doubt in the prosecution’s case. The appellant was thus convicted and sentenced to death. Criminal Appeal No: S-05(M)-85-02/2017 8 [18] The learned trial Judge had considered the appellant’s defence and concluded: “This court finds that his version is implausible because it is impossible for a knife to fall on a standing position where the deceased then fell and it penetrated her back. It must have been stuck in between stones or something to hold it up in the position to have that effect. This court opined that what transpired on that day is that, he stabbed the deceased’s on her right chest first which cut through the lips and when the deceased was in pain, its normal for her to react to the pain by bending over the injured side exposing her left shoulder and that’s when another stab was inflicted on the back and it justified why there were injuries on the left chest. Also, the L shape of the stab wound as per P7 clearly suggested that there was a struggle. The nature of the wounds cannot be self inflicted or by a fall. A person who stabs herself so deep will not be able to pull out the knife, let alone changing direction of the stab. If the knife happened to fall on the ground and by miracle was standing, a fall on the knife will go in one direction from chest to the back. It will not have vertical direction. The knife will go all the way through and would likely have come out from the back. That was not what happened in this case. Additionally, this part was never raised by the defence during prosecution’s case. Criminal Appeal No: S-05(M)-85-02/2017 9 Secondly, it was obvious from the accused’s evidence that he did not even intend to help the deceased and the only possible explanation for this is because he was the one who stabbed the deceased. His conduct of running away also confirmed that he is responsible for this incident. Lack of Mens Rea The defence contended that it was the deceased who called the accused and wanted to see the accused at her home in the first place. The fact that he left the scene does not mean he is to be blamed for murder. It is also not a crime to refuse to help the deceased as she was the one who wanted to stab him earlier. First of all, they were already having problems with their relationship due to religious issues. The accused went to see the deceased armed with a knife (the knife is part of his working tool in the farm). This clearly shows that when heated argument erupted between them, it was easy for the accused to inflict injuries on her as he was carrying a knife. The idea of defence that were raised by the accused that the deceased accidently stabbed herself is very much dramatic and unlikely to happen. Even if she accidently stabbed herself, it will not cause deep penetration into her chest and like I’ve said earlier in my grounds of judgment unless the knife fell on the ground in a standing position, it would make sense but throughout the trial, this proposition was never raised during the prosecution stage by the defence hence I consider this as an afterthought. Therefore he had the intention to cause injuries of which in the ordinary course of Criminal Appeal No: S-05(M)-85-02/2017 10 nature to cause death. Based on PW1’s evidence as an expert, those injuries suffered were fatal in nature thus this case fall under S.300

of the Penal Code. As per Mohd Azam Raja Abdullah v. PP [2015] 1 CLJ 1080, once it is proven under S.300 (c) of the Penal Code, Intention to cause death is no longer important but intention to inflict that particular injury that caused death is important. After assessing the totality of the evidences of the defence and re-evaluate the evidence of the Prosecution, the Court found that the Defence has failed to raise reasonable doubt against the Prosecution’s case. Therefore, the Prosecution had proven its case beyond reasonable doubt against the accused on the murder charge under s. 302 of the Penal Code. For the above reasons I found that the accused guilty as charged. After hearing the mitigation submitted on behalf of the accused, the accused is convicted and sentenced to death by hanging to the neck until death.” [19] The appellant, being dissatisfied with the decision of the learned trial Judge, has appealed to this Court against both conviction and sentence. The Appeal [20] Before us, learned counsel for the appellant canvassed the following three grounds in urging us to allow the appeal:

That the learned trial Judge erred in law and in fact when Her Ladyship convicted the appellant the offence of murder without Criminal Appeal No: S-05(M)-85-02/2017 11 appreciating the evidences submitted that there was no intention to kill and this can be corroborated by the nature and position of the injuries inflicted on the deceased accompanied by no motive nor intention to kill established adduced by the prosecution;

That the learned trial Judge erred in law and in fact when Her Ladyship convicted the appellant of murder when it was established that the weapon that was adduced may not be the weapon used to kill the deceased, based on the chemist report and corroborated by the evidence adduced by the appellant himself during trial; and

That the learned trial Judge had erred in law and in fact for failing to appreciate evidences submitted during trial that there might have been sudden fight occurred prior to the death of the deceased that might have lead the deceased to succumb to the injuries sustained that lead to her death.

Intention [21] It is trite that intention to kill may be inferred from the surrounding circumstances, including the weapon used, the nature of the injuries inflicted, and the manner in which the injuries were inflicted. The burden of proving this element lies on the prosecution and must be prove beyond reasonable doubt either by direct evidence or may be inferred or concluded from the circumstantial evidence as in the present appeal. Criminal Appeal No: S-05(M)-85-02/2017 12 [22] In his evidence, the appellant alleged that the deceased injured herself with a knife brought by her and that she fell onto the knife in her attempt to attack the appellant with the same knife. He claimed that he had no intention to kill the deceased as it happened in a sudden fight. It is obvious that the appellant was ‘blowing hot and cold’ in this case. There is evidence of a dying declaration from the witnesses. The deceased had told PW2, PW3 and PW4 that she was stabbed by the appellant. She repeated it when she was under treatment at the klinik and at the Ranau Hospital. This evidence of dying declaration was never challenged by the defence during the prosecution’s case and never disputed by the appellant in his defence. [23] Intention can be inferred from the weapon used. The murder weapon was recovered from the appellant’s house, from his own bedroom. The discovery was made due to information provided by the appellant. The photos of the weapon (P25) can be seen at pages 335-338 of the Appeal Record Volume 3. PW1 in her evidence agreed that P25 is the most likely weapon used to inflict the injuries suffered by the deceased. At pages 65- 66 of the Appeal Record Volume 2, PW1 stated: “A: Based on the amount of blood in the chest cavities, the abdominal cavity and the blood drain out in Ranau Hospital, the deceased has sustained massive blood loss resulting in severe hypotension (low blood pressure). This caused reduce blood supply and oxygen to the internal organs resulting in hypovolamic shock and death. The incised wound and the stab wounds were consistent with that caused by sharp object. Both the stab wounds on the right and left chest caused the death. Are the stab wounds on the right and left chest fatal in nature? Criminal Appeal No: S-05(M)-85-02/2017 13 Yes. You said just now the stab wound and the incised wound were caused by sharp object. Can you describe what type of sharp object that can caused such wounds? The profile of the sharp object is likely with a sharp tip in order to stab. Based on the size of the injuries on the chest, this object is likely to have narrow blade e.g. a knife. Refer to a two pictures showing a sharp object. Can you tell the Court the object in the pictures is similar as described by you as to have a narrow blade with a sharp tip? Yes, the object in the picture is similar to the profile I mentioned. In this picture the tip of the object appear to be sharp, the front part of the blade is tapering and the remaining part of the blade appear to have fairly consistent size based on the scale in the picture the widest part of the blade is almost the same size as injury no. 3. PP: This picture taken by S/D Philip Iyonong, (police photographer) at Rumah Pekerja Kebun Sayur, Kg Mesilou, Kundasang, Ranau on 30/10/2014 in ref to BERSABIT/RNU/RPT/3502/2014 @KS/NO/88/2014. PP: Apply for the pictures 9 & 10 to be marked as ID? D/C: No objection.”. [24] From the injuries suffered by the deceased as described by PW1 and from the weapon used, we are all four with the learned trial Judge that there was clear intention on the part of the appellant to cause those injuries which Criminal Appeal No: S-05(M)-85-02/2017 14 in the ordinary course of nature was sufficient to cause death which fall under section 300 (c) of the Penal Code.

P25 is not the murder weapon [25] The defence argument was that P25 recovered by PW15 from the appellant’s house was not the murder weapon on the ground that there was no DNA of the deceased found on the said weapon. The same argument was put forth before the learned trial Judge and the same was rejected by the learned trial Judge. The learned trial Judge gave her reasons at pages 35-36 of the Appeal Record Volume 1 as follows: “9. In this case, the accused raised:

The weapon tendered is not the weapon used during the incident. The argument of the defence is that there was no DNA on the weapon seized, the murder weapon was handed to the police out of fear of being beaten up and there was no conclusive proof to say that the murder weapon fits the profile of the injuries as knife and parang are both similar in shape. Again, PW13 in her evidence explained that there are factors leading to such result ie, (where DNA not found in EX1, EX2 and EX3) when the parang was collected, whether it was collected immediately or not, whether it has gone any cleaning process before it was collected, the condition of the parang when it was stored prior to handling over to the chemistry department. The allegation that the accused had been coerced to lead police to discover P25 is also baseless; he did not make any Criminal Appeal No: S-05(M)-85-02/2017 15 police report about this alleged beatings when he had the opportunity to do so and this court believes that he also did not inform the presiding magistrate about the said beatings and if it was recorded, we would have seen his notes of proceedings by now. Due to the unique design of P25, it is unlikely that the police had known beforehand the kind of injuries, ie width and length that fits the profile of the injuries. Furthermore, PW1 was firm in her finding that P25 fits the profile of stab wound thereby excluding any possibility that any other weapon was used.”. [26] We are entirely in agreement with the finding and decision of the learned trial Judge on this issue. We have no reason to depart from the view and conclusion of the learned trial Judge.

Sudden fight [27] Learned counsel posited that the learned trial Judge did not consider the defence of sudden fight that was available to the appellant. We disagree. We had the opportunity to peruse the appeal record and we cannot find anywhere that the appellant had pleaded the defence of sudden fight during the prosecution’s case. The defence’s contention was that the incident happened due to the act of the deceased herself. [28] Learned counsel pointed out that even the learned trial Judge had accepted that there was a struggle between the appellant and the deceased when she referred to the passage in the learned trial Judge judgment when Her Ladyship stated “Also, the L shape of the stab wound as per P7 clearly suggested that there was a struggle.” We do not agree. The fact that there was a struggle does not mean that there was Criminal Appeal No: S-05(M)-85-02/2017 16 a sudden fight. We have to read the statement in its proper context, which can be found in the following observations by the learned trial Judge: “This court opined that what transpired on that day is that, he stabbed the deceased’s on her right chest first which cut through the lips and when the deceased was in pain, its normal for her to react to the pain by bending over the injured side exposing her left shoulder and that’s when another stab was inflicted on the back and it justified why there were injuries on the left chest.”. [29] We are of the considered opinion that what the learned trial Judge meant was that there was a struggle merely referring to the deceased’s conduct after the deceased was tabbed for the second time and this resulted in the L-shaped wound. It is not true as submitted by learned counsel suggestion that there was a struggle or a sudden fight between the deceased and the appellant. [30] Learned counsel also suggested that there was a sudden fight based on the evidence of PW1 as can be seen from the injuries suffered by the deceased from which it can be assumed that the injuries were inflicted randomly. We are of the view that it is not safe to assume that there was a sudden fight solely based on assumption without any cogent evidence to support that assumption. More importantly, the defence of sudden fight was never suggested to any of the prosecution’s witnesses in this case either to PW1, the pathologist or to the investigating officer, ASP Jafri Abdul Hamid (PW19) or to the initial investigating officer, Inspector Ahmad Fathie Bin Mohd Salleh (PW15). Criminal Appeal No: S-05(M)-85-02/2017 17 [31] The defence of sudden fight falls within exception 4 to section 300 of the Penal Code. It reads: “Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation – It is immaterial in such cases which party offers the provocation or commits the first assault.”. [32] The learned counsel for the appellant relied on Che Omar Bin Mohd Akhir v. PP [1999] 2 MLJ 689. With due respect, his reliance on the case is misplaced as that case involved the defence of grave and sudden provocation, which falls within exception 1 to section 300 of the Penal Code. The defence of sudden fight had been explained by this Court in Chan Kwee Fong v. PP [2010] 1 MLJ 441 as follows: “[122] Finally, the defence of ‘sudden fight’ was raised by the accused. If the accused was successful in pleading this defence, he will be convicted of culpable homicide not amounting to murder. Exception 4 to s 300 of the Penal Code makes reference to this defence. It states as follows: Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation – It is immaterial in such cases which party offers the provocation or commits the firs assault. [123] The phrase ‘in the heat of passion’ envisages the situation where the combatants of a sudden fight have experienced some degree of loss Criminal Appeal No: S-05(M)-85-02/2017 18 of self-control. And the phrase ‘undue advantage’ gives the impression that the fight started on an equal footing between the combatants. There will be blows on each side. And each subsequent blow becomes a fresh provocation notwithstanding that only a slight blow that may have been exchanged. [124] To bring a case within Exception 4 to s 300 of the Penal Code, the following facts must be proved:

that there is a sudden fight in the heat of passion upon a sudden quarrel;

that there is no premeditation; and

that the offender has not taken undue advantage or acted in a cruel or unusual manner. [125] The drafters of Exception 4 must have foreseen that in a sudden fight it is quite impossible to say which party is more guilty than the other. Thus, there should not be an interval between the quarrel and the fight. If such interval exists, then reason would prevail. And reason would definitely overcome passion and the fight cannot be said to be sudden. Blows must be exchanged and even if such blows are avoided and do not hit the opponent, a sudden fight is said to have taken place. In Atma Singh Kahan Singh v The State AIR 1955 Punjab 191 at p 192, the court said: The term ‘fight’ is not defined in the Code, but everyone knows what a fight is and that it takes two to make a fight. I would agree with the argument of learned counsel for the appellant that is is not necessary that weapons should be used in a fight, and also that an affray can be a fight even if only one party in the fight is successful in landing a blow on his opponent. Criminal Appeal No: S-05(M)-85-02/2017 19 I would, however, hold that in order to constitute a fight it is necessary that blows should be exchanged even if they do not all find their target, …… [126] Here, a knife was used by the accused. The drawing of the knife was tendered in court as exh P25 and it was SP8 who drew the shape of the knife. The High Court considered the arguments that the knife was not tendered and rightly held that both SP8 and SP9 saw the accused holding the knife immediately after the deceased was seen collapsing on the coffee shop floor and bleeding from the stomach. We see no reason to disturb the High Court’s assessment of the evidence pertaining to the knife. [127] Here, the accused had stabbed the deceased not once but four times with a knife. The evidence revealed that after being stabbed on the front part of his body, the deceased ran but was chased by the accused. The accused caught up with the deceased and again stabbed the deceased on the back of the buttock. This was the fourth stab that had cut the pubic ramus bone and partially cut the internal iliac artery causing excessive loss of blood. Just like the High Court, we find it difficult to say that the accused had not taken undue advantage or had not acted in a cruel or unusual manner. In our judgment, the accused had taken advantage of the deceased and had acted in a cruel and unusual manner (Public Prosecutor v Chan Kim Choi [1989] 1 MLJ 404; and Teo Boon Ann v Public Prosecutor [1989] 2 MLJ 321). That being the case, the defence of sudden fight must fail.”. [33] In the instant appeal before us, the appellant while armed with a knife (P25) confronted the deceased in her house. There, they had an argument arising from the appellant’s proposal to marry the deceased. Based on the dying declaration, the appellant stabbed the deceased when the deceased rejected the appellant’s love due to the difference in their religion. The Criminal Appeal No: S-05(M)-85-02/2017 20 appellant had stabbed the deceased once at her mouth and chased her to the vegetable farm and stabbed her again twice. The appellant could not substantiated his allegation that the deceased was also armed with a knife, other than to say that he had thrown away the knife. The appellant also said that the deceased injured herself with the same knife. We found the appellant allegation to be most illogical. In our judgment, the appellant had taken undue advantage or acted in cruel and unusual manner towards the deceased. That being the case, the defence of sudden fight, if any, must fail. [34] We of the considered view that in the light of the medical evidence given by the forensic pathologist (PW1), the appellant’s defence is untenable. We agreed with the learned trial Judge that the nature of the wounds could not have been self inflicted or due to a fall. We agreed that the case against the appellant had been proven beyond reasonable doubt on the murder charge under section 302 of the Penal Code. Conclusion [35] Having considered the facts and the totality of the evidence, we found no merit in the appellant’s appeal. The conviction is safe and amply supported by the evidence. Hence, we dismissed the appellant’s appeal and affirmed the conviction and sentence passed by the High Court. Dated: 8 August 2018 signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Criminal Appeal No: S-05(M)-85-02/2017 21 Counsel For the Appellant: Farazwin Haxdy Messrs. Farazwin Haxdy & Associates No. 12-1, First Floor Lorong Plaza Kingfisher 5 Block E, Plaza Kingfisher 88450 Kota Kinabalu For the Respondent Mohd Zain bin Ibrahim