Subsection (2) shall have no application in Sarawak. 11 [16] In the well-known case of Anandagoda v The King [1962] MLJ 289 from Ceylon, the Privy Council in considering the very same provision, said as follows as to what constitutes an admission: “The test whether a statement is a confession is an objective one, whether to the mind of a reasonable person reading the statement at the time and in the circumstance in which it was made it can be said to amount to a statement that the accused committed the offence or which suggested the inference that he committed the offence. The statement must be looked at as a whole and it must be considered on its own terms without reference to extrinsic facts. In this connection their Lordships consider that the view expressed by Gratiaen J in Seyadu v. King [1951] 53 NLR 251, 253: The test of whether an "admission" amounts to a "confession" within the meaning of s. 17(2) must be decided by reference only to its own intrinsic terms is correct. It is not permissible in judging whether the statement is a confession to look at other facts which may not be known at the time or which may emerge in evidence at the trial. But equally it is irrelevant to consider whether the accused intended to make a confession. If the facts in the statement added together suggest the inference that the accused is guilty of the offence then it is nonetheless a confession even although the accused at the same time protests his innocence.” [17] The fact in issue at the trial was whether the appellant murdered the deceased. The appellant told SP2 that he had killed his wife. He added that he hit her head with a lamp and strangled her. The admission of the appellant to SP2 raised an inference that he alone was directly responsible for the death of the deceased. The admission of the appellant therefore comes squarely within the ambit of section 17(2) and also the test laid down by the Privy Council in the above-mentioned case. It is therefore a confession. It is therefore admissible although no caution was administered as SP2 is not a police officer or a person in authority. It was 12 voluntarily given by the appellant to SP2. In the premises, its admission was not excluded by sections 24-26 of the Evidence Act 1950. [18] The other point strongly argued by counsel for the appellant is that the appellant could not have used the word “cekik” as the appellant does not know any Malay. However, during cross-examination, SP2 said that the appellant spoke in English. He could not recall the exact English word used by the appellant. Therefore, it is not the evidence of SP2 that the appellant uttered “cekik” or otherwise spoke in Malay. It must be noted that the SP2 gave evidence in a mix of English and Malay. In any event, even when giving evidence in Malay during examination in chief, he quoted the exact words of the appellant in English who told him that he “killed” his wife. Therefore, reading the statement made to the appellant as a whole, it suggested very strongly that it was the appellant who caused the death of the deceased. We also find it unnecessary that SP2 could not recall the exact English word used by the appellant when referring to “cekik”. In the case of Iskandar Danial bin Md Yunos & anor. v PP [2019] 2 MLJ 728, this court admitted a confession made to a civilian witness although the witness did not quote it verbatim when giving evidence in court. The court said as follows: “Ditegaskan …. pengakuan tersebut masih tidak boleh diterima pakai kerana tidak dikemukakan secara verbatim, (kes Lemanit v. PP [1965] 2 MLJ 26, dan Ho Sek Kong v. PP [2011] 5 MLJ 359 disandarkan untuk menyokong saranan). Kami tidak diyakinkan dengan penghujahan tersebut … Keterangan mereka merupakan keterangan langsung di bawah s. 60 Akta Keterangan 1950. Selain itu, keterangan sedemikian merupakan keterangan yang relevan dan boleh juga diterima masuk di bawah s. 8 dan s. 9 Akta Keterangan 1950. Pada hemat kami, dalam kes-kes sebegini yang biasanya melibatkan keterangan ikut keadaan boleh dipermudahkan jika adanya keterangan langsung daripada tertuduh mengenai apa yang dilakukan, secara terus atau sebaliknya. Lebih- 13 lebih lagi jika terdapatnya pengakuan daripada tertuduh itu sendiri. Tertakluk kepada syarat-syarat yang termaktub dalam perundangan, keterangan yang bernilai ini tidak seharusnya dibuang begitu saja tanpa alasan yang kukuh, yang pada kami yang gagal ditunjukkan oleh kedua-dua peguam.” [19] In any event, as we said earlier, SP2 quoted verbatim the English words of the appellant who said that “I killed my wife”. It must be noted that no challenge was successfully made that SP2 was not sufficiently proficient in English to be able to recall the said words. The appellant denied saying anything to SP2 but the trial judge accepted the latter’s evidence. We see no reason to interfere with this finding of fact as SP2 is a totally disinterested witness. In the premises, we find no merit in the first issue. It was properly admitted and considered by the trial judge. Failure to investigate injuries of the appellant [20] The second issue argued by counsel for the appellant is that the investigating officer failed to investigate the injuries suffered by the appellant and refer him to a medical doctor. The alleged failure of the investigating officer is made an issue because it is the case for the defence that the appellant was physically attacked by his deceased ex-wife who was one and the half times heavier than him. But the learned trial judge disbelieved the appellant that he acted in self-defence and one of his reasons was that the appellant was not injured. [21] Counsel for the appellant referred to the evidence of the investigating officer. The investigating officer agreed during cross-examination that it was the deceased who started the fight by attacking the appellant. She also agreed that she did not refer the appellant to a 14 doctor to examine whether he suffered any injuries during the fight. However, the investigating officer has no personal knowledge about what transpired in the room between the appellant and the deceased. During re-examination, she said that it was the appellant who told her that the deceased started the fight. Although she agreed with counsel for appellant that in cases involving a physical fight, parties should be referred for medical examination, she said that she did not refer the appellant to a doctor because she did not notice any injury on him including the alleged injuries on his mouth and lips. The appellant told the court that he told the investigating officer that he suffered various injuries. But the investigating officer did not say that the appellant complained to him that he suffered injuries. It was not put to her by counsel for the appellant during cross-examination that appellant made such a complaint either. The investigating officer was unswerving in her evidence that she noticed no injuries on the appellant. Injury to the mouth and lips and other parts of the body after being allegedly attacked and thrown about by someone who was one and the half times one’s size would have been in all likelihood noticed by the investigating officer. The force that was applied by the deceased was described by the appellant as follows: “The force was sufficient enough, I had a bump on the my head when I hit the wall, I had gash on my shoulder where I hit the shelf….I had a gash in my side by my ribs….and the back my shoulder had scrapped the wall. Q: Why these injuries on your body? Can you explain to the court how you got all those injuries? A: Because she threw me that hard. Remember Guilda is 150 per cent my size. She weighed ½ times more than I do. She was running and she put all her weight to it. ….. 15 Q: The injury because of the force caused by Guilda? A: Correct. It literally threw me across the room. The distance at about 8-9 feet.” [22] The appellant also said that he suffered a bleeding cut on his lower left leg after he stumbled over the treadmill machine during struggle with the deceased. The fact that the investigating officer did not notice any injury or blood on the appellant meant that he was not injured as found by the learned trial judge. The appellant did not tell the arresting officer (SP7) who came to the hotel suite about having been injured either. When cross-examined why he did not disclose his injuries, his unconvincing answer was that SP7 never asked him about it. But in the same breadth, he said that he told SP7 two days later about the injury on his leg when the latter recorded his statement. If it was true that the appellant had suffered the injuries that he described, it is incredible that he did not seek medical attention through the police officers that he encountered on the same day. [23] Counsel for the appellant also argued that the DNA evidence established that blood belonging to the appellant was found in the fingernails of the deceased. In our view, the DNA evidence does not prove that the appellant was injured in the way that he described. The appellant said that both of them were locked in a struggle as she grabbed his neck with her hands. Therefore, it is highly probable that the appellant was scratched. Assuming that the appellant suffered serious wounds that caused him to bleed, bloods stains belonging to him would have been found not only on the clothes of the deceased but also on the floor. [24] The cases of Chan King Yu v PP [2008] 2 MLRA 695 and Lee Kwan Woh v PP [2009] 5 MLJ 301 cited by counsel for the appellant can be distinguished. In Chan King Yu v PP (supra), the appellant was convicted 16 by the High Court on evidence that he was in occupation of a hotel room in which drugs were found. From the moment of the arrest, the appellant told the police that the plastic bag in which drugs were found belonged to one Man Chai who was coming to collect them. The investigating officer in that case admitted that the appellant said the same thing in the cautioned statement. The investigating officer could have investigated Man Chai but failed to do so. On this ground and in view of other infirmities in the case for the prosecution, the Federal Court set aside the conviction. In Lee Kwan Woh v PP (supra), the basis of the prosecution’s case was that the appellant was arrested as he emerged from a car holding a bag that contained drugs. The appellant told the investigating officer that he was arrested in the compound of the house and not when he emerged from the car. Furthermore, one of the police detectives told the investigating officer that drugs were recovered from the same house earlier in the day prior to the arrest of the appellant. The investigating officer failed to investigate the claim of the appellant. For this reason and other reasons, the appeal was allowed by the Federal Court. However, in the instant case, the investigating officer said that the appellant never complained about being injured and she did not notice injuries on him either. For that reason, she would have had no reason to refer the appellant to a doctor for medical examination. Therefore, we find no merit in the issue taken by counsel for the appellant. Mens rea element [25] The third issue argued by counsel for the appellant is that the trial judge made erroneous finding in respect of the mens rea element. The learned trial judge found that the act of the appellant fell under limb (c) of section 300, i.e. “with the intention of causing bodily injury to any person 17 and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death”. The argument of counsel for the appellant is as follows. For the case to fall under limb (c), there must be evidence that the appellant intended to inflict fatal injury on the deceased. He cited a number of authorities to support his argument. In Virsa Singh v State of Punjab AIR 1958 SC 465 which has been cited in a number of Malaysian cases to interpret the meaning of intention in the third limb, the Indian Supreme Court said as follows: “In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on common sense: the kind of enquiry that 'twelve good men and true' could readily appreciate and understand.” [26] In the Privy Council case of Mohamed Yasin bin Hussin v PP [1976] 1 MLJ 156, the appellant sat on the chest of the victim with force. She suffered fractures on her ribs which caused congestion of the lungs that resulted in cardiac arrest. The injuries were sufficient in the ordinary course of nature to cause death. In overturning the conviction for murder and substituting it with a conviction under section 304A, Lord Diplock said as follows when discussing the element of intention: 18 “In their Lordships' view, this fails to give effect to the distinction drawn in sections 299 and 300 of the Penal Code, in cases where the accused did not deliberately intend to kill, between the act by which death is caused and the bodily injury resulting from that act. In the instant case, the act of the appellant which caused the death, viz. sitting forcibly on the victim's chest, was voluntary on his part. He knew what he was doing; he meant to do it; it was not accidental or unintentional. This, however, is only the first step towards proving an offence under section 300(c) of the Penal Code. Not only must the act of the accused which caused the death be voluntary in this sense; the prosecution must also prove that the accused intended, by doing it, to cause some bodily injury to the victim of a kind which is sufficient in the ordinary course of nature to cause death.” [27] Counsel for the appellant submitted firstly that the prosecution in the instant case failed to prove that the fatal injury, i.e. compression of the neck was an intended injury. He submitted that the trial judge took into account the purported confession of the appellant that he “killed” the deceased and strangled (cekik) her in finding that there was evidence of intention. We considered the confession earlier and ruled that it was properly admitted into the evidence. Even, if were otherwise, it is our finding that the trial judge had ample evidence before him to conclude that the appellant intended to cause bodily injury to the deceased which was sufficient in the ordinary course of nature to cause death. The passage in the judgment of the trial judge that was criticised as a misdirection is as follows: “The gravity of the injuries inflicted on the deceased as found by the pathologist, clearly pointed out to an intention by the accused. The accused would know the changes on the face and the tongue of the deceased during the strangulation. Despite the severe condition of the deceased, he continued with the strangulation until she died. Her death was in fact brought about by the action of the accused. It was obvious that the accused had the intention of causing 19 that injury to his ex-wife. As what PW3 said, the injury was in the natural course of nature could cause death.” [28] Secondly, counsel for the appellant submitted that there was no intention to cause the said bodily injury, i.e. compression of the neck. It was dark in the early hours of the morning and that there was no evidence that the appellant could see the changes on the face and tongue of the deceased during the strangulation. He also submitted that there was no evidence that the appellant continued strangling the deceased as found by the trial judge. [29] We find that interference with the trial judge’s finding that the appellant intended to cause the bodily injury that is sufficient in the ordinary course of nature to cause death is not warranted. The pathologist explained in detail the cause of death. It was fatal compression of the neck which was caused by manual strangulation of the victim. He explained the evidence that he found upon examining the body that led him to conclude that the cause of death was strangulation apart from the information given to him. He said there was bluish discoloration of the face and tongue due to lack of oxygen. The tongue bite that was noted was due to pressure on the neck. He found fractures on the neck that were consistent with the victim being strangled. His summary of the evidence of strangulation is found in the following passage in the notes of proceedings: “Q: In your findings you said cause of death “fatal compression of neck”. Can you explain to the court what you mean by compression of neck? A: My Lord compression of neck is evidence at autopsy in the form of injuries to the skin of the neck, congestion of the face, haemorrhage in the eyes, haemorrhage of struct muscle of the neck, haemorrhage of the soft tissue of the neck and fractures of the bone and cartilage of the neck (soft bone). 20 Q: Why you said that upon your examination “injury to the neck structures were consistent with manual strangulation”. A: My Lord it was opinion by conclusion there was no evidence of ligature mark on the neck so ligature strangulation was ruled out. Most importantly, the injuries to the neck / the haemorrhage on the neck was pre-dominantly on one side of neck that is the left side. With small haemorrhage on the right side. My Lord these are common findings in manual strangulation.” [30] During cross-examination, the pathologist further explained that the compression to the neck prevented the supply of oxygen. He said as follows: “The findings of this autopsy were associated to the lack of oxygen supply because of the blood vessel compression of the neck. That is why we found haemorrhage in the eyelids and congested face and haemorrhages around the face all. All this because of lack of oxygen. It’s like a heart attack.” [31] The expertise of the pathologist who had conducted 5000 autopsies in his long career was not successfully challenged. The appellant did not produce any expert rebuttal evidence in respect of the cause of death. The appellant said that he was physically attacked by the deceased who had tried to prevent him from leaving the hotel suite and that he defended himself. Be that as it may, both appellant and deceased were purportedly involved in a robust physical struggle as the appellant said he defended himself. The pathologist found a head injury on the deceased which he said may have rendered her partially unconscious before she was manually strangled. But the head injury was not the cause of death. The deceased died because she was strangled to death. By his own account, the appellant was the only person in the hotel suite with the deceased at the material time. As the medical evidence proved the cause of death was manual strangulation and the appellant and the deceased were locked in 21 a physical struggle, the only inference that can be drawn is that the appellant had strangled the deceased to death. Therefore, the trial judge’s finding on this point is not open to challenge unless, of course, for sake of argument, it was possible for the deceased to have strangled herself. [32] As we mentioned earlier, the main complaint of counsel for the appellant is that the prosecution failed to prove that appellant intended to cause the injury that resulted in her death. In our opinion, the learned trial judge had correctly found that the element of intention was proved. The “intention” in limb (c) of section 300 is the intention to cause the injury that would have been sufficient in the ordinary course of nature to cause death. Assuming that the deceased had died of head injury or multiple fracture to the ribs as in the case of Mohamed Yasin bin Hussin v PP (supra), given the physical struggle between the parties and alleged resistance put up by the appellant, it is possible to argue that there was no intention to cause bodily injury that will cause death in the ordinary course of nature. However, as on the evidence, the appellant had undoubtedly strangled the deceased to death, in our view there is no room to argue that the infliction of the said bodily injury was unintentional or accidental. It is trite law that intention is a matter of inference as noted by the trial judge. In our view, whether the appellant could see the changes on the face of the deceased when he was strangling her, the relevant point is whether intention can be inferred from his act in strangling her. The serious injuries that the deceased suffered do not point to a momentary squeeze at the neck of the deceased in the heat of a struggle. The pathologist noted that bones around the neck including the cartilage and hyoid bone were fractured and the neck muscle and tissue were damaged. He said significant force was applied and it prevented oxygen supply. In short, the deceased was strangled to death. We are therefore of the view that the 22 learned trial judge did not err in finding that the appellant intended to cause the injury that resulted in the death of the appellant. In the premises, we find no merit in the third issue. Failure to appreciate defence [33] The fourth and fifth issues raised by counsel for the appellant is that the trial judge did not properly appreciate the defence of the appellant and misdirected himself. He submitted that in order to invoke the defence of private defence, reasonable apprehension of danger on the part of the appellant is sufficient. The appellant need not be actually attacked or that there was actual continuing danger. Counsel for the appellant also submitted broadly that the defence of the appellant was not subjected to a fair and just assessment. He cited some eminent authorities and provisions of the Penal Code in respect of the principles to consider in determining whether the right to private defence had arisen. We shall cite some of them here. [34] In Palmer v R [1971] 1 All ER 1077, Lord Palmer at the House of Lords said as follows at page 1088: “If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence. But their Lordships consider in agreement with the 23 approach in De Freitas v R that if the prosecution have shown that what was done was not done in self-defence then that issue is eliminated from the case.” [35] The above-mentioned passage has been quoted numerous times with approval by our courts starting with the Federal Court in Lee Thian Beng v PP [1972] 1 MLJ 248. The provisions of the Penal Code highlighted by counsel for the appellant are sections 100 and 102. The relevant part of section 100 is as follows: The right of private defence of the body extends, under the restrictions mentioned in the last preceding, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right is of any of the following descriptions: