Mohd Halid bin Mappa v Public Prosecutor (S-05-(H)-131-03/2016)

(a) According to Salmah Bte Pintor (PW6), one day before the incident of murder took place, the deceased and one of the deceased’s friend by the name Era came to PW6’s house. Era wanted to charge her handphone and at that time the deceased was crying and hugging PW6 and informed her that if her husband (the appellant) comes back from Bukit Garam, he will kill her. Before PW6 could asked the deceased what had happened, the appellant was already back with his children and shouted at the deceased “matilah kau di situ”. PW6 try to run away with the deceased to the deceased sister’s house since the appellant had tried to attack the deceased. However, the appellant managed to grab the deceased while PW6 managed to run away for help;

(b) The deceased brother, Abdul Rahim Bin Alip (PW7) testified that on 9.5.2009, a day before the incident, when he was at home, he heard his name called “Payak”. PW7 came out from the house and saw the appellant grabbed the deceased until her shirt was torn. PW7 also saw the appellant brought a knife (which later identified as P10) which the appellant slipped in front inside his pants;

(c) At that time the deceased was crying and begging the appellant to release her but failed. The deceased had also asked the appellant to give her the said knife (P10) but the appellant refused. The deceased’s sister, Yatimah bte Abd Alip (PW8) 4 also tried to take the knife from the appellant but failed. The appellant then told the deceased “Aku bunuh kau” and the deceased replied “Bunuhlah, bunuhlah aku daripada kau kasi sengsara aku”. At that time PW8 saw the appellant took out the knife P10 [page 91 of the Appeal Record, Volume (11)];

(d) Later on, PW7 and PW8 managed to calm and settle both the appellant and the deceased. The appellant agreed to release the deceased. The appellant together with the deceased and their children then went to PW8’s house;

(e) At the PW8’s house, the couple continued to quarrel until they sleep. During the argument, PW8 heard that they will proceed with their divorce on Monday (the incident was on Saturday). The next morning i.e on 10.5.2009, PW8 saw both of them still quarrelling. PW8 then left them in the house as PW8 had to go to Telupid to bring her mother to the clinic;

(f) At about 10.00 a.m, PW8 received a phone call from her husband one Martinus Subang (had since passed away before the trial commence) informed her that her sister, the deceased had died. PW8 went back home but on the way, PW8 together with Yusuf bin Hapid (PW4) went to Balai Polis Telupid and PW4 lodged a police report (P1) which was received by Constable Tony Tasek (PW1);

(g) When PW8 reached her house, Martinus Subang told her that when he was at the kitchen cooking rice for the deceased’s children, suddenly the deceased came and fell near him with her neck been slashed. Statement under Section 112 of the Criminal Procedure Code recorded from Martinus Subang had 5 been tendered and received as evidence under Section 32(1) of the Evidence Act 1950 and marked as P33;

(h) According to P33, that fateful morning Martinus Subang was at the front of his house (serambi) together with the appellant and the deceased. Martinus Subang had adviced them to settle their problem and refer to the authority for divorce. Martinus Subang then went inside the kitchen to cook rice as the deceased’s children were hungry. Later, Martinus Subang saw the deceased come inside the kitchen and fell near him. Martinus Subang saw the deceased body covered with blood and he noticed that there was a slashed wound to the deceased’s neck. Martinus Subang went out to look for the appellant but the appellant was no longer in the vicinity;

(i) The appellant was arrested on the next day (11.5.2009) after he surrendered to the police. Before that, the appellant came to the plantation where he met Asman bin Sani (PW9). The appellant gave the knife P10 to PW9 and show a signal using his hand to indicate that P10 had been used to slit somebody’s throat. PW9 immediately called the police and later he handed over the knife to the police. The appellant was arrested by SM Rosman bin Rosdi (PW2) and his team at PW9’s house at Kampung Linayukan, 42 km from Telupid;

(j) A post mortem on the deceased’s body was conducted by Dr. Jessie Hiu (PW5) . The cause of death of the deceased as certified by the pathologist was a result of the incised wound on the neck which injured the airway and blood vessels causing bleeding and death. PW5 confirmed that the injuries were fatal in nature and would in ordinary course of nature cause death. 6 PW5 rejected the possibility that the wound was self-inflicted as although it is possible but in this case it is not likely. PW5 explained that usually self-inflicted fatal neck injury would have multiple tentative superficial cuts before the final fatal one inflicted. Sometimes they might have cuts on the wrist as well but in this case, there was no other superficial cuts on the neck or on the wrist. The post-mortem report prepared by PW5 was tendered and marked as P7. [5] At the end of prosecution’s case, the learned trial judge made the following findings, at page 12 of the Appeal Record, volume (1): “[2] The essential ingredients of the charge which the Prosecution must prove against the Accused person are as follows: [2.1] that Verisrin @ Veris Bt Alip @ KK Abd Alip (NRIC No: 791121-12-5584) (“the deceased”) is dead; [2.2] that her death was caused by injuries sustained by her; [2.3] that her death was caused by or in consequence of the act of the Accused; [2.4] inflicting the injuries upon the deceased person, the Accused person either:-

(i) caused them with the intention of causing death; or

(a) The learned trial judge had failed to consider that there was no eye-witness who saw the appellant slashing or slitting the throat of the deceased. The deceased blood was not found on the shirt (P8) and trousers (P9) of the appellant;

(b) The learned trial judge failed to hold that the prosecutions’ failure to adduce evidence as to the height of the appellant as fatal. There was no evidence led as to the height of the appellant so as to establish that the appellant had in fact inflicted the wound; and

(c) The learned trial judge failed to consider whether the appellant can avail himself of the defence of grave and sudden provocation although it was not put to the prosecution nor raised by the appellant. [13] In regard to the 1st and 2nd grounds, learned counsel argued that since there was no eye witness to the crime, the evidence as regard to the height of the appellant became very crucial. Learned counsel submitted that if the appellant was shorter than the deceased, then the wound caused could be consistent with the wound inflicted which slanted downtrend from the higher part to the lower part of the neck. If the appellant was of the same height with the deceased, then the wound caused would have been either parallel or slanting downtrend from the 14 higher part to the lower part of the neck. Learned counsel further submitted that if the appellant was taller than the deceased, then the wound would have been either parallel or slanting uptrend from the lower part to the higher part of the neck. [14] On the 3rd ground, learned counsel argued that since the learned trial judge had made findings of fact that the appellant had discovered about the deceased’s adultery and that the appellant had a quarrel with the deceased a day before the incident which must have inflamed the appellant to kill the deceased, it was suggested by learned counsel that any man in the appellant’s position would have been filled with uncontrolled rage and caused the death of the deceased unintentionally. Learned counsel’s complaint was that had the learned trial judge went on to consider whether the appellant can avail himself of the defence of grave and sudden provocation, the learned trial judge would have found and held that the appellant was entitled to the defence of sudden and grave provocation. Our Decision [15] In regard to the issue that no eye-witness who saw the appellant slitting the deceased’s throat, we agreed with the learned trial judge that there are strong circumstantial evidence to point the guilt of the 15 appellant. We had the opportunity to peruse the Appeal Records and we are of the considered view that the findings of the learned trial judge was not perverse in convicting the appellant. We found that there were cogent and overwhelming circumstantial evidence amply supporting the trial judge’s decision. We noted that the burden on the prosecution for this type of cases are much heavier one, but it has been fulfilled by the prosecution in the case before us. In PP v. Lin Lian Chen [1992] 2 MLJ 561, Edgar Joseph Jr., SCJ stated it summarily: “It is trite law that where the prosecution is relying on circumstantial evidence the onus upon it is a very heavy one and that evidence must point irresistibly to the guilt of the accused. If there are gaps in it then that will not be sufficient.”. [16] As we alluded to earlier in our judgment, the learned trial judge had relied on the strong circumstantial evidence which pointed to the appellant alone who committed the murder of the deceased. The appellant was the last person seen with the deceased, no one else present. The appellant threatened and quarreled with the deceased one day before the incident and continued in the morning before the incident took place. The appellant had told PW6 earlier that if the appellant came back he will kill his wife. Both PW7 and PW8 saw the appellant brought the murder weapon (P10) with him and had threatened to kill the 16 deceased while holding P10 when they had a quarrel. PW9 met the appellant a day after the incident and the appellant gave PW9 the knife P10 and asked the appellant to surrender to the police which the appellant later did. Finally, it was the appellant who brought the police team led by PW10 to recover the murder weapon and his clothes at the PW9’s house. [17] On the learned counsel’s complaint that the appellant’s clothes did not bear the deceased’s blood, this could be explained by the lack of evidence as regard to the manner how the incident had happened. It could have happened from the rear of the deceased in which case there was no possibility for the deceased’s blood to have smeared the appellant’s clothings. Even though the evidence of the blood are available, that evidence would only be considered as supportive in nature. We find no merits in the learned counsel’s complaint regarding the 1st ground of appeal. [18] On the issue that the prosecution failing to prove the height of the appellant, we disagree that it was fatal to the prosecution’s case. From the Appeal Records, it shows that even though this issue had been raised before the learned trial judge in the appellant’s learned counsel’s submission, the same issue was never put to the prosecution’s 17 witnesses. It is trite that the failure to cross examine a witness or to put the defence case during the prosecution’s case on a crucial part of the case would amount to an acceptance of the witness testimony and rendered the defence to be an afterthought (see Wong Swee Chin v. PP [1980] 1 LNS 138). [19] We find the learned counsel’s submission as regard the possibility of the wound suffered by the deceased much depended on the height of the assailant are a mere conjecture and from the bar table which we should not take into consideration. As we alluded to earlier there was no evidence as to how the incident occurred. No evidence as to the position of the deceased and the appellant at the time the injuries were inflicted, therefore the height of the assailant are not relevant. The fact whether the assailant was of the same height or different height with the deceased are not important and irrelevant. [20] The learned trial judge was right when his Lordship accepted the evidence of the pathologist (PW5) who had explained the injuries suffered by the deceased. In his judgment, the learned trial judge explained [pages 12 – 13 of the Appeal Record volume (1)]: 18 “[15] I accepted the evidence and findings of the Pathologist (PW5) who inter alia had found 2 injuries namely, an incision on the front of the neck and a bruise on the front of the chest [Refer to Q237 at p31 of the Notes of Proceedings]. She also found that there was no defensive wound to suggest any sign of a struggle [Refer to Q238 at p31 and Q284 at p55 – 56 of the Notes of Proceedings], that the fact that there was no defensive wound to suggest any sign of a struggle is more consistent with the deceased, being slashed and not suicide. [16] If the Accused contended that he tried to stop the deceased from slitting her own throat then there should be signs of a struggle but there was none. Furthermore from the nature, depth and severity of the deceased’s wound, as can be seen in the photographs which are produced as exhibits, I find that it cannot be self-inflicted as the nature and severity of the said wound can only be inflicted with considerable force and the wounds were more consistent with slashing with considerable force rather than slitting. If indeed the Accused did hold the Deceased’s hand and tried to stop her slitting her throat, I would not expect the wounds sustained by the Deceased to be so deep and severe.”. [21] The evidence of PW5 which are material to this case can be found at pages 31 – 33 of the Appeal Record volume (11) as follows: “Q237 How many injuries were found on the deceased’s body? 2 injuries, one incised wound on the front of the neck cutting the left neck muscle, the airway, left carotid artery, left jugular vein and the left vagus nerve. There was a bruise on the front of the chest. 19 Q238 From these injuries, were there any defensive wound? No Q239 Which injury caused his death? Incised wound on the neck. Q240 Upon your expert opinion what can cause such injury? Sharp object. Q241 From your expert opinion what was the deceased cause of death? Incised wound on the neck which injured the airway and blood vessels causing bleeding and death. Q242 From your expert opinion, were the injuries fatal in nature? Yes Q243 Why? Injury on the blood vessel caused massive and rapid bleeding. This resulted in one, in excessive lost of blood and two, no blood supply to the left side of the head and neck and almost two-third of the left side of the brain. The injury on the airway caused difficulty in breathing. Q244 From the injury, what was the chance of survival? Unlikely to survive. Q245 Were the injuries sufficient in ordinary course of nature to cause death? Yes Q246 Refer ID3 (17) and (18), based on your examination finding, can the incised wound on the neck be caused by self infliction? Possible but in this case not likely. Usually self inflicted fatal neck injury would have multiple tentative superficial cuts before the final fatal one inflicted. Sometimes they might have cuts on the wrist as well. In this case there was no other superficial cuts on the neck or on the wrist. 20 Q247 Have you ever conducted post mortem on self inflicted neck injury? Yes Q248 How many times? A few times, I cannot recall the exact number. Q249 From the injury on the neck, can you tell how was it inflicted? If right handed person stand in front or behind the deceased and slashed the deceased neck from the left to the right, it is possible to get this type of injury.”. [22] We found no merits in the learned counsel’s complaint on the issue of the appellant’s heights not being proven by the prosecution. [23] The final ground argued by the learned counsel before us was on the alleged failure of the learned trial judge to consider the defence of grave and sudden provocation available to the appellant. Learned counsel admitted that the defence of grave and sudden provocation was never put nor raised by the appellant in the court below. Learned counsel reiterates that the defence of the appellant was that the deceased slit her own throat. That explained the learned trial judge’s failure to consider whether the appellant can be availed himself for the defence of grave and sudden provocation. We are of the view that the learned trial judge could not be blamed for the failure simply because the 21 issue was never put and never raised before the learned trial judge. The same issue was only raised for the first time before us. [24] The law on the defence of grave and sudden provocation can be found under Exception 1 to section 300 of the Penal Code which provides: “Exception 1 – Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:

(a) that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person;

(b) that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant;

(c) that the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation – Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder, is a question of fact. ILLUSTRATIONS

(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, S’s child. This is murder, inasmuch as the provocation was not given by the child, and 22 the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.

(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A’s deposition, and that A has perjured himself. A is moved to sudden passion by this words, and kills Z. This is murder.

(e) A attempts to pull Z’s nose. Z, in the exercise of the right private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation exited to violent rage. A, a bystander, intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife into B’s hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.”. [25] Before the defence of grave and sudden provocation can be utilized, certain requirements have to be satisfied by the appellant on the balance of probabilities as required by section 105 of the Evidence Act

Defence of grave and sudden provocation had been explained at 23 length by Nik Hashim, FCJ in the case of Che Omar Mohd Akhir v. PP [2007] 3 CLJ 281, as follows: “[14] The question whether the provocation was grave and sudden such as to make the accused to lose his self-control is a question of fact and not one of law (see Explanation to Exception 1 to s 300 of the PC: Kuan Ted Fatt v Public Prosecutor [1985] 1 CLJ 150; [1985] CLJ (Rep) 174 FC). 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 the accused, (see Ratanlal & Dhirajlal, The Indian Penal Code, 29th edn, 2002 p 1194). [15] The test of “grave and sudden provocation” was clearly stated in the Supreme Court case of Lorensus Tukan v Public Prosecutor [1988] 1 CLJ 143; [1988] 1 CLJ (Rep) 162. Seah SCJ in delivering the judgment of the court said: 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). 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 idiosyncracies of the accused: Madhavan v State of Kerala AIR [1966] Ker 258 (260). 24 [16] It is also said that the defence of provocation is a dual one: the alleged provocative conduct must be such as (i) actually causes in the accused, and (ii) might cause in a reasonable man, a sudden and temporary loss of self-control as a result of which he kills the deceased. [17] Thus, in order to successfully set up provocation as a defence for the reduction of the offence of murder to one of culpable homicide not amounting to murder, 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 provocation.”. [26] Further at page 294 at para [20] of the same case, his Lordship said: “[20] ….To our minds, there is no such thing as gradual and accumulated provocation that amounts to grave and sudden provocation. Devoid of its gravity and suddenness, a gradual and accumulated provocation is not sufficient to constitute a defence under Exception I to S.300 of the PC”. [27] We found no appealable error on the part of the learned trial judge in not making any finding on the defence of grave and sudden provocation. The burden is on the appellant to prove on balance of probabilities, the existence of circumstances bringing the case within any 25 of the general exceptions as envisaged in section 105 of the Evidence Act 1950, which states: “105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances.

(a) A accused of murder alleges that by reason of unsoundness of mind he did not know the nature of the act. The burden of proof is on A.

(b) A accused of murder alleges that by grave and sudden provocation he was deprived of the power of self control. The burden of proof is on A.

(c) Section 325 of the Penal Code provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the circumstances, bringing the case under section 335, lies on A.”. [28] We found that the appellant had failed to discharge their burden on proving his defence available under any of the exceptions under Section 300 of the Penal Code. As admitted by the learned counsel, the defence of grave and sudden provocation was never raised nor put to the prosecution’s case at the Court below. We found no merit on the third 26 ground of appeal raised by the learned counsel for the appellant (see Bala Matik v. PP [2006] 2 CLJ 229). Conclusion [29] Based on the reasons adumbrated above, we found no merits in the appellant’s appeal. The conviction is safe and amply supported by the evidence adduced by the prosecution. The appeal is dismissed. The conviction and sentence of the High Court is affirmed. Dated: 2 November 2017 Signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Counsel/Solicitors For the Appellant: Zaleha bte Mohd Yusuf Pan Messrs Peter Lo & Co 2nd Floor, Standard Chartered Bank Building, Jalan Pelabuhan, 90000 Sandakan, Sabah For The Respondent: Mohd Zain bin Ibrahim Deputy Public Prosecutor Attorney General’s Chambers Putrajaya.