Mohd Faizul Bin Abdul Jalil v Pendakwa Raya (S-05(M)-526-10/2018)

Although the internal injuries sustained by the deceased were not immediately fatal, they are sufficient in the ordinary course of nature to cause death.

The injuries can be surgically repaired. However, in this case, the deceased was in critical condition from the severe internal bleeding by the time she was brought to Queen Elizabeth Hospital II. As a consequence, she developed multiple complications as result of the massive bleeding and succumbed to her injuries despite the surgery conducted." [3] The next pertinent question is who inflicted the stab wound which according to PW2 was caused by a ‘bladed sharp object which tapered to a sharp tip at one end’ and that an example of such object is a knife. To answer that question the prosecution relied largely on circumstantial evidence which shows that the appellant was the last person seen with the deceased whilst she was alive. That evidence came from the deceased’s sister, Asrini Binti Sahran (PW10) who was 13 years old at the time of the incident and 14 years old when she gave evidence. Her competency to give evidence under oath was tested by the learned High Court Judge (HCJ) who was satisfied that she was 4 able to do. Her evidence shows that at about 9.00 p.m. that night when they were at home, she heard the voice of the appellant, which she said she was familiar with, calling the deceased in his own distinct way and whereupon the deceased went out of the house with another sister of theirs, Asira Binti Sahran (PW11). A few minutes after they left she heard the deceased screaming and found her clutching her stomach which was bleeding. The deceased was then brought to the hospital by their father, Sahran Bin Ambodai (PW4). The cross-examination of PW10 consisted of only five questions which we reproduce below from page 113 of Volume 2 of the Appeal Record: “PW10: ASRINI BINTI SAHRAN Cross examiantion: Malam itu yang kau dengar Faizul panggil, kau tidak nampak Faizul kan? Ya. Malam itu di luar rumah keadaan nya gelap betul? Betul. Adik kau cakap Asrina jumpa Faizul. Lama kah diarang jumpa sebelum kau dengar Asrina berteriak? Tidak juga. Agak agaknya berapa minit? 3 minit. 5 Kalau saya cakap lebih dari 3 minit diarang berjumpa baru kamu dengar Asrina beteriak, kau boleh setuju: Setuju.” (emphasis added) [4] PW11 was also subjected to the same competency test by the learned HCJ as she was only 11 years when she testified in court and which test she similarly passed. PW11 corroborated PW10’s evidence that upon hearing the appellant’s call, the deceased and her who were together in a room went to the front door. She saw the appellant said “mumu” to the deceased whilst waving his hand in her direction and the deceased left to follow him. PW11 then returned to her room and when she entered her room she heard the deceased’s scream. PW11 then quickly followed her father (PW4) and sister (PW10) to go down from the house and that was when they found the deceased injured. She was not cross-examined by the defence at all. [5] The other circumstantial evidence against the appellant was the fact that a few hours before the incident, he went to purchase a knife from a shop, YNL Marketing and was attended to by the cashier on duty, Roziana Madina (PW3) who identified him in court. Her evidence is corroborated by a CCTV recording (Exh. P23) obtained from the shop. PW3 agreed in cross-examination that the appellant did ask her about a chopping board and she pointed to him the direction where it 6 was sold in the shop but he did not purchase it. Barely 45 minutes after the incident, at 9.45 p.m., L/Corporal Hafizi Bin Mohktar (PW12) together with the Investigating Officer of the case, Insp. Mohamed Anwar Bin Mohamed Jamil (PW13) and four other policemen went to the scene but found it deserted. Subsequently about 3 hours later, the same police team at 12.30 a.m. on 12/10/2016 arrested the appellant by the roadside leading to Kampung Langkon Baru, Kota Marudu. The appellant was then standing beside a pick-up D-Max truck which belonged to Datu Al Rashsid Bin Datu Shetu (PW6) who testified that on the same night at 9.00 p.m. he found the said truck was stolen from his business premises. The theft was captured on CCTV which recording was tendered as Exh. P26 at the trial. PW6 also testified that he always left the car key in the truck, in case of fire. The appellant was PW6’s grandnephew who, according to PW6 used to stay with him and also helped him in his restaurant business. The premises for his hardware business was also near the deceased’s house, that is only 200 -250 meters away, said PW6. [6] The reason why PW12 and PW13 proceeded to go to the said Kampung after PW12 visited the scene of crime at 9.45 p.m. that night was because PW12 had been informed by the appellant’s uncle, Dahalan Bin Atoh (PW7) that when the appellant had any problem he 7 would go to PW7’s in-law’s house at the said village. This information was conveyed to PW12 by PW7 after the latter called him. PW12 said he made that call to PW7 after PW13 informed him about the murder of the deceased and that the suspect was a deaf and mute guy named Faizul. PW12 said he knows both PW7 and the appellant and that was why he called PW7. PW7 in turn testified that at the time of the incident the appellant was staying with him and he was informed of the incident by PW4. According to PW13, the Welfare Department had certified that the appellant is deaf and mute and he also suffers from learning disabilities. [7] After the appellant’s arrest, PW7 acted as his translator during his interrogation by the police and following information given during that interrogation, the appellant led the police to the discovery of the knife (Exh. P22) which when found near the deceased’s house still had with it the price tag from the shop it was bought. PW7 also testified that the appellant and the deceased were lovers but broke up which broke the appellant’s heart as he still loved her. [8] Based on the evidence above, the learned HCJ found that a prima facie case has been made out by the prosecution because from the evidence of PW10 and PW11, he was the last person seen alive 8 with her and the deceased suffered the injury right after she left with him. The appellant had also fled the scene with the said pick-up truck and arrested with the vehicle about two kilometers from the deceased’s house and upon his arrest gave the information which led to the recovery of the knife. Motive, according to the learned HCJ is not an essential element of the offence and the fact that the price tag was still on the knife does not mean that the appellant’s action was not premeditated. He could, said the learned HCJ, simply not think about the significance of that price tag. The learned HCJ described this as a crime of passion and concluded at page 24 of Volume 1 of the Appeal Record as follows:- “The case for the prosecution had been constructed based on various evidences gathered from the relevant prosecution witnesses. The requirement of S. 300(c) of the Penal Code has been successfully fulfilled and proven by the Prosecution that the accused has intended to inflict the fatal injuries with the use of knife on the deceased’s body and this attracts an inference that those injuries were indicators of proving the accused’s intention in question inferred from his own actions by using a knife unnecessarily against a defenceless young girl knowing that it is a dangerous weapon and likely to cause death. A Prima Facie case has been established against the accused under S. 302 of the Penal Code. On account of the above, this court had therefore ordered the accused to enter his defence to the charge preferred against him.” 9 The Defence [9] The appellant elected to give unsworn evidence by way of a written statement (Exh. D1) where he first detailed his unhappy childhood for his parents divorced when he was two and he had to be taken care of by his mother and grandmother. He also testified on his close relationship with PW7 and confirmed what PW7 said about his broken heart over the ending of his relationship with the deceased. He said after the break-up the deceased used to humiliate and shame him by mocking and making fun of him in front of others whenever they met and even insulted him by saying ‘Fuck you’ followed by a gesture with her middle finger. The appellant denied that he had intended to cause the deceased’s death. Although he did not deny buying the knife on the day of the incident and also looking for a cutting board, the said knife was to be used in his grandmother’s house. The appellant never denied going to the deceased’s house that night, calling out to the deceased, and when she came out, they then went to an empty house in front of hers. Whilst there, the appellant used sign language to tell her not to humiliate him any further and asked her to rekindle their relationship but instead the deceased not only rejected his request but also scolded him. He was therefore incensed and unconsciously took out the knife and stabbed her due to the grave and sudden provocation from the deceased. Upon hearing her screams 10 the appellant said he let go of the knife and ran to PW6’s hardware store where he took PW6’s pick-up truck, drove it fast because he said he was in a state of fear and panic. In the process of exiting the premises, the appellant said he collided with the front gate of the premises. [10] The learned HCJ rejected the defence put forward by the appellant for this reason as stated at page 29 of the Appeal Record Volume 1: “In this case he went to see the accused prepared with a weapon. This court refused to accept that the reason he was carrying a knife because he bought them from the store for his grandmother. This is because knives sold in supermarkets are often wrapped. You don’t see any shops selling knife exposing its sharpness. So lets say he bought the knife supposedly for his grandmother and then he went to deceased’s home to see her, had a chat and later got in a fight, he would still have to unwrap the said knife in order to use it which give the deceased an ample time to run away which in this case the deceased didn’t make it as it is plain and simple, the accused had come prepared. But the point here is that, he came to the deceased’s home with a knife.” [11] The learned HCJ also considered the defence submission that the appellant should not be subjected to a reasonable man test 11 because of his handicap but rejected it on this ground as per page 30 of the same Volume: “The fact is the accused has a speech disability but he has no mental disability which can diminish his thinking and actions. The fact that he was in a relationship before shows that he has no problem communicating with people, let alone the ones he love. So to say his disability is a factor that he should not be compared to in a reasonable man’s test is out of context because he is not mentally disabled. Even with people with speech disability, it is a universal and human instinct that it is wrong to hurt other people with weapon or without weapon. Therefore he had the intention to cause injuries of which in the ordinary course of nature to cause death. Based on PW2’s evidence as an expert, those injuries suffered together with complications thereafter were fatal in nature thus this case fall under S. 300 (c) 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.” The Appeal [12] Before us learned counsel for the appellant raised two issues. The first is that the element of intention was not proven and the second is the failure of the learned HCJ to appreciate the appellant’s defence. Learned counsel conceded that resolving these two issues in his client’s favour should earned him not an outright acquittal but a 12 substitution of the conviction to one under section 304 (a) of the Penal Code. Intention [13] The often cited case on this element is that by the Federal Court in Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ 174 where it was held that proof of intention is a matter of inference and the deliberate use of a dangerous weapon would lead to an irresistible inference of such an intention to cause death. This was what Raja Azlan Shah, FJ (as His Lordship then was) said at page 176 of the judgment: “Section 300, Penal Code defines murder as follows. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done: (1) with the intention of causing death; (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; (3) with the intention of causing such bodily injury to any person, and ... is sufficient in the ordinary course of nature to cause death; (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death. The words which I have utilized show the marked differences between the two offences. Where there is an intention to kill, as in (a) and (1), the offence is always murder. Where there is no intention to cause death or bodily injury, then (c) and (4) apply. Whether the offence is 13 culpable homicide or murder depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide; if it is the most probable result, it is murder. Illustration (d) of section 300, Penal Code is a case of this description. Where the offender knows that the particular person injured is likely, either from peculiarity of constitution, immature age, or other special circumstances, to be killed by an injury which would not ordinarily cause death, it is murder. Illustration (b) of section 300, Penal Code is a good example. The essence of (b) and

is this. It is culpable homicide if the bodily injury intended to be inflicted is likely to cause death; it is murder, if such injury is sufficient in the ordinary course of nature to cause death. Illustration (c) given in section 300, Penal Code is an example. It is on a comparison of these two limbs of section 299 and section 300 that the decision of doubtful cases as the present must generally depend. The distinction is fine, but noticeable. In the last analysis, it is a question of degree of probability.” [14] Granted that nobody witnessed the actual stabbing in this case but the very obvious evidence is the purchase of the knife just a few hours before the incident and the extremely short interval between the time the appellant left with the deceased and her coming back to the house with the wound on her stomach. The fact that the appellant looked normal, as submitted by learned counsel, when he purchased the knife and was seen talking and smiling with PW3 at that time does not prove that he had no intention to commit murder. Further, the appellant in his defence never denied committing the act – only that he did so out of anger after being scolded by the deceased. Though 14 he went to the house openly as submitted by his counsel before us, that in itself or the fact that the price tag was still with the knife, are not evidence which would exculpate the appellant from the offence because he had gone to see the deceased with the knife in his possession which shows a preparatory act consistent with premeditation. It must be remembered that the purchase of the knife was a few hours before the incident and not right before it, so there was simply no justification and the appellant did not explain in his statement why he had to bring the knife with him when he went to see the deceased. As for the price tag which he did not remove, again it must be borne in mind that the appellant is one with a learning disability and the significance of it would have escaped him. [15] In relation to this issue of intention, the evidence of PW2 that the stab wound in the abdomen is sufficient in the ordinary course of nature to cause death is also pertinent. We agree that the learned HCJ had used the words “... likely to cause death” without referring to PW2’s evidence but Her Ladyship was merely referring to section 300(b) of the Penal Code and which for certainty we would produce below with the other paragraphs: 15 “300. Murder Except in the cases hereinafter excepted, culpable homicide is murder –

if the act by which the death is caused is done with the intention of causing death;

if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused:

if it is done with the intention of causing 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

if the person committing the act knows that it is 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.” [16] On this issue learned counsel for the appellant referred us to this Court’s decision in Wawan Bin Sanrego v Public Prosecutor [2013] 1 MLJ 658 which had been upheld by the Federal Court where the murder conviction was set aside and substituted with a conviction for manslaughter but when we examined the facts of that case, it was totally distinguishable from that in the present appeal before us because there the stabbing of the deceased was in a commotion involving five persons including the appellant and the deceased was 16 stabbed when she turn to face the appellant whilst the appellant was in a motion. [17] Further, the post-mortem report in the cited case stated that the wound was caused by a small sharp object whereas the appellant in that case was seen right before the stabbing of the deceased holding a long parang. PW5 who was part of that commotion was also stabbed with a knife and that knife was never recovered. Thus, on the evidence the court held that it was not safe to assume that the said appellant did the stabbing of the deceased with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death. With respect to learned counsel for the appellant now before us, the evidence against his client is much clearer and based on our considerations above, the circumstances show that the appellant, sadden and angered by the rejection of his love and affection by the deceased had committed the act. The learned HCJ was therefore not wrong to describe it as a crime of passion. In concluding so we too have considered the evidence of PW7 who said that the appellant is a sensitive soul and prone to anger if he did not get his way. This evidence is reflected in pages 76 – 77 of the Appeal Record, Volume 2 and reads as follows: 17 “Q: Dari segi perangai nya, Faizul seorang yang sensitive? Ya, betul. Sekiranya dia tidak difahami bahasanya oleh seseorang, dia cepat marah? Ya betul. Jika dia tidak mendapat apa yang dia mahu, dia pun cepat marah? Ya betul. Tetapi jika dia difahami dan dia dapat apa yang dia mahu, dia memang baik? Ya betul.” (emphasis added) Having found that the appellant had the requisite intention to cause the death of the deceased, the next issue is whether he had a valid reason to do so based on the defence of grave and sudden provocation under Exception 1 to section 300 of the PC. Grave And Sudden Provocation [18] The Federal Court in Public Prosecutor v. Surbir Gole [2017] 2 CLJ 621 which was cited to us by learned counsel for the appellant explained what constitutes the above defence in paragraphs 37 and 39 at page 632 as follows: “[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. 18 [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.” [19] Learned counsel for the appellant submitted that the learned HCJ did not discuss the defence raised in her judgment but instead focused on his disability. We found the complaint misplaced and this is evidenced by what we had reproduced earlier on Her Ladyship’s consideration of the defence and why she rejected it. As for the focus on the appellant’s disability, as stated earlier it was because of the defence contention before Her Ladyship that the appellant should not be subjected to a reasonable man test when considering the said defence due to his handicap. That reasonable man test in relation to this defence was described by the Federal Court in Lorensus Tukan v Public Prosecutor [1988] 1 CLJ 143 in the following words: “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).” 19 This reasonable man test had been similarly propounded in an earlier Federal Court decision, that is Ikau Anak Mail v Public Prosecutor [1973] 2 MLJ 153 which held as follows: “To succeed in a defence of grave and sudden provocation, it is necessary in law for the defence to satisfy the court that not only by the acts of the deceased that the accused had been deprived of the power of self-control, but such acts of provocation would also have deprived a reasonable man of the power of self-control.” With respect, just because the appellant is deaf and mute does not exempt him from the application of the test as stated above for it was only his speech and hearing which are impaired, not his thinking. [20] It is trite law that the appellant’s unsworn statement, not being subjected to cross-examination entitles the court to give it a lesser weight as held by the Federal Court in Dato’ Seri Anwar Ibrahim v Public Prosecutor & Another Appeal [2015] 2 CLJ 145 at page 199 as follows: “In law, a trial judge will not give much weight to what an accused has said in his unsworn statement as he is not subject to cross-examination by the prosecution nor can he be questioned by the trial judge.” 20 [21] When we examined that statement of the appellant and mindful of the weight to be attached to it, it is obvious that no evidence of such provocation – whether grave or sudden – had been established by the appellant. Just because he is a sensitive soul and hot-tempered does not mean that he had the right to stab the deceased for rejecting and scolding him. If this was the case, all similarly hot tempered man or woman, for that matter, will get away with murder if they kill out of anger. Surely that is not what the law intends. In other words, the reasonable man test as propounded by the apex court in the cases cited above also applied to him inspite of his disability and he has failed to pass the said test. In reaching this conclusion, his act in stealing the pick-up truck to go to the said Kampung is also relevant evidence for our consideration as provided in section 8 of the Evidence Act. The application of this section has been discussed by the Federal Court in Pathmanabhan Nalliannen v Public Prosecutors & Other Appeals [2017] 4 CLJ 137 and there is no reason not to hold the said conduct against the appellant in this case for if it were true that the stabbing was accidental, there is no reason for the appellant to flee because since he claimed to still love her, his natural reaction would be to seek help. That act of fleeing is also further evidence that the appellant’s thinking was not impaired for the sole irresistible inference to be derived from it is the appellant knew that what he did was wrong. The 21 above consideration further strengthened our conclusion that the decision of the learned HCJ to convict and pass the death sentence on the appellant was right. [22] For the reasons stated above, the appeal was dismissed and the decision of the learned HCJ was affirmed by us. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 30th January 2020 Parties Appearing: For The Appellant: Hamid Ismail [Tetuan Hamid & Co.] For The Respondent: Nahra Binti Dollah Deputy Public Prosecutor (Attorney-General’s Chambers) 22

Tham Kai You & Ors v Public Prosecutor [1977] 1 MLJ 174;

Wawan Bin Sanrego v Public Prosecutor [2013] 1 MLJ;

Ikau Anak Mail v Public Prosecutor [1973] 2 MLJ 153;

Dato’ Seri Anwar Ibrahim v Public Prosecutor & Another Appeal [2015] 2 CLJ 145;

Pathmanabhan Nalliannen v Public Prosecutors & Other Appeals [2017] 4 CLJ 137.