Mohd Azmirul Bin Shamsuddin v Public Prosecutor (B-05(M)-517-10/2018)

This is an appeal against the decision of the learned High Court Judge (“trial judge”) who on 15th October 2018 found the appellant guilty for murdering one Rabiatul Adawiah Binti Abdul Aziz and sentenced the appellant to death by hanging.

The charge against the appellant reads: “Bahawa kamu pada 4 Mac 2015 pada jam lebih kurang 8.22 malam bertempat di Blok F, Tingkat 13, No. 8 Apartment Mentari Court, Sungai Way, Petaling Jaya, dalam Daerah Petaling, dalam Negeri Selangor, telah menyebabkan kematian Rabiatul Adawiah bte Abdul Aziz (No. K/P 910629-10-5516) dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan.”

We heard this appeal on 22nd October 2019 and at the end of which we unanimously found there was no merit in this appeal. We found the conviction and sentence was safe. Hence the appeal was dismissed. The conviction and sentence imposed by the learned trial judge was affirmed. We are now giving our grounds.

The brief facts of the case as narrated by the learned trial judge is that on the 4th of March 2015, Muhamad Amirullah bin Kassim (PW4) returned home from work as a security guard. 3

Upon his arrival at his home, he heard his daughter crying. He called his neighbor, Noraini to open the door because he could not find the house key. He managed to enter the house and found his wife (the deceased) lying with her hands tied and suspected to have died.

Before that day, the deceased had told PW4 that the appellant who stayed next door had always peeked at her while she was taking her bath.

On 4th March 2015 at 10.25 p.m., Insp. Mohd Nasmi bin Yaacob (PW5) arrested the appellant at Pudu Central. The appellant was later brought to the hospital by Khairul Shahril bin Azman (PW2) for the blood sample to be taken. PW2 also handed over the deceased’s blood sample to Dr Yamuna A/P Sivapathy (PW8).

PW5 conducted the interrogation on the appellant, the result of which, the appellant brought PW5 to the telephone shop where the appellant had sold the deceased’s hand phone to Lim Soon Hou (PW3). PW3 confirmed that he bought the said hand phone from a man that he could not identify.

The appellant also brought Insp. Affendy bin Mohamad Nor (PW6) to the room where the accused rented in Mentari Court, Jalan PKS 8/9. In the said room, PW6 seized a black colored short pant which was worn by the appellant when he entered the deceased’s room.

The investigation was carried out by ASP Ranjit Singh A/L Harban Singh (PW10). The deceased’s body was brought to the hospital for autopsy. 4 The pathologist, Dr Karunakaran Mathiharan (PW14) conducted the autopsy on the deceased’s body and confirmed that she suffered from several injuries and the cause of death was “suffocation”.

The Science Officer, Normazlina binti Zainuddin (PW7) confirmed that the appellant’s DNA was present on the baby diapers which was used to tie up and gag the deceased’s mouth.

At the close of the prosecution’s case, and after conducting maximum evaluation on the available evidence, the learned trial judge found the prosecution had established that the deceased is dead and her death was due to suffocation. It was the appellant who caused the deceased’s death when he gagged the deceased’s mouth with a white towel, encircling her head with a knot over her right ear and the oral cavity was stuffed with a pair of baby socks. His Lordship then found the prosecution had established a prima facie case and ordered the appellant to enter his defence.

The appellant gave evidence under oath and his defence was that he had no intention to murder the deceased. He raised the defence of grave and sudden provocation. 5

According to the appellant, on the said day, he returned home at around 2.00 p.m. to take his clothes as he wanted to go back to his hometown.

At around 5.00 p.m., the appellant went to the deceased’s room to apologize because he had previously peeked (mengintai) her. When he arrived at the deceased’s room, she opened the door and cursed the appellant with vulgar words like “puki mak”. The appellant asked her to calm down. The deceased instead slashed the appellant’s hand with a knife 3 times.

The appellant was angry and punched the deceased. Later, the appellant tied the deceased’s mouth with a cloth and tied up the deceased’s legs and hands using a rope.

After that, the appellant left the deceased’s room and took his clothes in his room. Thereafter, the appellant headed to LRT Station, Taman Bahagia and went to Pudu Raya to take a bus to his home town.

At the conclusion of the trial, the trial judge found the appellant failed to create a reasonable doubt in the prosecution’s case. The prosecution on the other hand had proved its case beyond reasonable doubt. Hence, his Lordship found appellant guilty as charged, convicted and sentenced him to death by hanging. 6

Although the petition of appeal contains several grounds of appeal, before us, counsel for the appellant canvassed only the following grounds:-

The learned trial judge misdirected himself when his Lordship found the appellant’s motive of going to the house was to rob; and

The learned trial judge had failed to consider the defence of grave and sudden provocation. [20] On the first issue, it was in relation to the following finding made by the learned trial judge regarding the appellant’s motive. The learned trial judge wrote: “[45] Mahkamah berpandangan pembelaan Tertuduh adalah suatu penafian. Dia pergi ke bilik si mati adalah untuk merompak dan juga untuk menyebabkan kecederaan kepada si mati. Kecederaan itu dalam keadaan biasa yakni perbuatan menyumbatkan kain napkin ke dalam mulut si mati boleh menyebabkan sesak nafas. Sesak nafas itu dalam keadaan biasa boleh menyebabkan kematian [Gobinathan Valaylam v PP (2018) 1 LNS 126).” [21] It was submitted by the learned counsel for the appellant that the learned trial judge misdirected himself when his Lordship said that the appellant’s motive in going to the deceased’s room was to rob, while the appellant’s case that had been put during prosecution’s case was that the 7 appellant went there to apologise. He had no intention of murdering the deceased. During defence, again the appellant said he went there to apologise.1 According to the learned counsel, the claim by the appellant that he went there to apologise and not to rob was further supported by the fact that no personal belongings of the deceased were recovered from the appellant. [22] On the second issue, the complaint by the counsel for the appellant was that the learned trial judge failed to consider the defence of grave and sudden provocation. He contended that the appellant had no intention of murdering the deceased but was provoked by the deceased into doing what he did when the deceased started to scold, curse and injure him (marah, memaki dan mencedera Perayu). According to the learned counsel, the learned trial judge although did take note that the appellant relied on defence of grave and sudden provocation, nevertheless his Lordship failed to analyse further on this defence. [23] It was submitted by the learned counsel for the appellant that the appellant did not intend to murder the deceased. The appellant went to the house to apologise but was provoked by the deceased. This caused the appellant to become angry and lose control of himself. He punched and tied the deceased in order to silence her. 1 See Para 4 appellant’s written submission dated 23-8-2019 8 Findings by This Court [24] On the issue of motive or lack thereof in relation to the murder alleged to have been committed by the appellant, it is pertinent to note that “motive” ought not to be mistaken for intention or wrongful knowledge. Motive is the reason that motivates one to act2. The law on motive in relation to offence of murder is settled. In an offence of murder, mens rea is a requisite and constituent element for such a charge. This may be proved either by way of direct evidence or by way of irresistible inference from circumstantial evidence. While proof of intention or mens rea is mandatory, lack of motive may not be necessarily fatal to the prosecution’s case. An act of killing may be intentional though for no apparent motive. That does not make it any less culpable.3 [25] Reverting to this case, it is not in dispute that the appellant had caused the deceased’s death when he gagged the deceased’s mouth with a white towel, encircling her head with a knot over her right ear and the oral cavity was stuffed with a pair of baby’s sock. This act of suffocating the deceased was such an act in all probability will cause death, or such bodily injury as is likely to cause death. As to his intention of doing this, it has to be inferred from his outward acts and omissions and not by his excuses for causing the deceased death. Of course, during defence, he gave the excuse that he did what he did in order to stop the deceased from shouting or put up a struggle but the evidence showed his intention was not just to stop the deceased from shouting or struggling. As narrated by the appellant himself 2 See Basdev v State of Pepsu [1956] Cr LJ 919; Siva Rajan v State [1959] Ker 319. 3 See Mohamad Nazarie Halidi v PP & Another [2019] 6 CLJ 61 9 in his evidence, the appellant punched the deceased after the deceased cursed at him. As the result of the blow the deceased fell on her back. The appellant punched the deceased again. He then sat on the deceased before tying the hands and leg of the deceased. The evidence given by PW14 showed the deceased suffered 25 external injuries, 7 of which were defensive wounds. In these circumstances, we are of the view that the learned trial judge was justified in not accepting the appellant’s allegation that he went to the deceased house to apologise, but instead found robbery as the motive. In fact, when the arresting officer (PW4) was cross-examined, it was put to him by the defence that when arrested the appellant told the arresting officer “saya tidak bunuh, saya samun sahaja.”4 [26] For the above said reason, we find there was no misdirection on the part of the learned trial judge in finding robbery as the motive in this case. In any event, whatever the motive was, it is not a constituent element for a charge of murder. Hence we find the first issue raised by appellant is without merit. [27] Regarding the 2nd ground and that is the defence of grave and sudden provocation, indeed in the ground of judgment, the learned trial judge did not deal with the defence of grave and sudden provocation. His Lordship merely mentioned it at para 39 of his short ground of judgement “[39] Pembelaan Tertuduh adalah “grave and sudden provocation”. After listing out the evidence given by the appellant, and after evaluating the totality of the evidence given by the prosecution and the defence, his Lordship found 4 Para 15 Page 37 Appeal Record Vol 2A 10 the appellant failed to raise any reasonable doubt in the prosecution’s case and the prosecution had proven its case beyond reasonable doubt. [28] Grave and sudden provocation is indeed a defence for the charge of murder. If proven, on balance of probability, would entitle the appellant to a reduced charge of culpable homicide not amounting to murder under section 304 (a) of the Penal Code. However in order to bring a defence of grave and sudden provocation within the Exception 1 to section 300 of the Penal Code, certain facts need to be established. The Federal Court in Che Omar Bin Mohd Akhir v Public Prosecutor [2007] 4 MLJ 309 had dealt with defence of grave and sudden provocation extensively. It was held that in order to bring the case within the exception it is necessary that the following facts should be established:

The offender must have done the act whilst deprived of the power of self-control;

(ii) He must have been so deprived by reason of the provocation;

(iii) The provocation must have been grave and sudden;

(iv) The provocation must not have been sought by the offender;

It must not have been voluntarily provoked by the offender as an excuse for doing the act; and

(vi) The provocation must not have been given by anything done:-

either in obedience to the law or

by a public servant in the lawful exercise of his powers as such or 11

in the lawful exercise of the right of private defence. [29] After referring to decision in Kuan Ted Fatt v Public Prosecutor [1985] 1 MLJ 211 (FC) and Ratanlal & Dhirajlal, The Indian Penal Code, (29th Ed, 2002) p 1194, the Federal Court went on to hold that the question whether the provocation was grave and sudden such as to make an accused to lose his self-control is a question of fact and not one of law. 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 an accused person. It is not enough to show that the accused was provoked into losing his self-control; 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 provocation5 (see Ratanlal & DhirajLaL, p 1192; Vijayan v Public Prosecutor [1975] 2 MLJ). [30] Seah SCJ in the Supreme Court case of Lorensus Tukan v Public Prosecutor [1988] 1 MLJ 251 had this to say at p 253 regarding the test of grave and sudden provocation: “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 5 (see Ratanlal & DhirajLaL, p 1192; Vijayan v Public Prosecutor [1975] 2 MLJ 12 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 (see Madhavan v State of Kerala AIR 1966 Ker 258 (260)).” [31] Reverting to this appeal, we have scrutinized the appeal record to find whether there is any evidence which would establish, on balance of probability, a defence of grave and sudden provocation and we find there is none. [32] The appellant alleged that the deceased used the word “puki mak” on him and the deceased had nicked (toreh) his hand with a knife, and this according to the learned counsel amounts to grave and sudden provocation. With respect, we are unable to agree with the learned counsel. Even if it was proven that the deceased had indeed uttered the words and had nicked the appellant’s hand, we find in the circumstance of this case, could hardly be considered as provocation, let alone grave and sudden provocation. [33] Bearing in mind, the test of ‘grave and sudden’ provocation is whether a reasonable man, belonging to the same class of society as the appellant, placed in the situation in which the appellant was placed would be so provoked as to lose his self-control; we had examined the circumstances surrounding the incident. It is in evidence by the appellant himself that he used to peek (mengendap) the deceased while she had her bath. According to him, he went there to tender his apology but was met with vulgar word 13 “puki mak”. In our view, a reasonable man would have left immediately and would not be provoked to such an extent that would deprive him the power of self-control. But not the appellant; he instead, punched the deceased. After the deceased fell, he punched her again and sat on her. To silence the deceased, the appellant stuffed a pair of baby socks in her oral cavity and gagged the mouth with a white towel, encircling her head with a knot over her right ear. Regarding the allegation that the deceased had injured the appellant’s hand by nicking it with knife, it was merely an allegation. There is nothing in the form of medical report to substantiate his allegation that he was indeed injured. As such we are left with nothing more than the bare assertion of the appellant that he was injured by the deceased. On the other hand, the evidence given by PW14 showed that it was the deceased who suffered injuries- 25 injuries all together and 7 amongst them were defensive wounds. Taking all these into account, it is our finding that, on balance of probability, the vulgar word, if indeed it was uttered by the deceased, did not have the gravity and provocation that could cause a reasonable man to lose his self-control that could justify the action of the appellant in this case. Hence we find the defence of grave and sudden provocation was not established. The 2nd issue raised by the appellant is without merit. Conclusion [34] As was decided in Mohd Johi Said & Anor v PP [2005] 5 MLJ 409, unlike civil appeals where the appellant carries the burden of showing that the judge at first instance went wrong, in a criminal case the duty of the court is to consider whether the conviction is right. The correct approach is therefore not whether the decision is wrong but whether the conviction is 14 safe. In this case, having considered the factual matrix, we are of the view that the conviction against the appellant is safe. In the circumstances, we unanimously dismissed the appeal. The conviction and sentence by the High Court is affirmed. Dated 13.8.2020 Sgd. MOHAMAD ZABIDIN BIN MOHD DIAH Judge Court of Appeal Malaysia For the Appellant: Halim Ashgar Mohd Hilmi (Messrs. Halim Ashgar) For the Respondent: Dato’ Mohd Dusuki bin Mokhtar