Mohd Norol Latif Bin Abd Raof v Pendakwa Raya (A-05(M)-328-09/2020)

The Appellant was charged at the High Court in Taiping for the following: "Bahawa kamu antara 15 Januari 2018 jam lebih kurang 11.00 malam sehingga 16 Januari 2018 jam lebih kurang 1.00 pagi, bertempat di hadapan rumah di alamat No.3, Kg Jong, 33300, Gerik, di dalam Daerah Hulu Perak, di dalam Negeri Perak Darul Ridzuan, dengan niat telah membunuh Mohd Shahrulnizam Bin Abdullah No KP; 890213-08-5237 dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan."

On 21.8.2020 the High Court convicted the Appellant and sentenced him to be hanged by the neck until he is dead.

The Appellant's appeal to the Court of Appeal against his conviction was unanimously dismissed and the decision and sentence passed by the High Court was affirmed.

These are the reasons for our decision.

The brief factual background that led up to the unfortunate event in this case emanated from an allegation of a theft of a power bank belonging to the deceased by the Appellant.

Matters took a turn for the worse when the deceased, Mohd Shahrulnizam together with SP5 went to the house of the Appellant on 15.1.2018 to retrieve the power bank which was left behind by the deceased in the Appellant's house.

The deceased and SP5 went to the Appellant's house twice that fateful day as the Appellant was not at his house the first time. At the second visit to the Appellant's house, the deceased entered the house and confronted the Appellant.

According to SP5 who was outside the Appellant's house at the time, testified that he heard the latter arguing with the deceased about the power bank.

The deceased then came out of the house and told S5 to leave the house and headed towards the house of Mat Pen. Upon their arrival there they discovered that Mat Pen, Rosli and Mat Nan were there.

The deceased, the Appellant, SP5 and SP6 were all close friends that frequently lazed around Mat Pen's house.

Not long after, SP5 and SP6 saw the Appellant approaching the deceased with both hands behind his back as if he was hiding something. The rest who were there got up and tried to restrain the Appellant.

All of a sudden, the Appellant stabbed the deceased in his left side of his chest with a knife. The deceased then ran away from the Appellant and headed toward the main road. The Appellant however, chased the deceased while pointing the knife in the direction of the deceased.

According to SP5 and SP6, the Appellant thereafter went to the deceased's house and took some of the deceased's belongings, which was a mobile phone and a bag.

SP5 and SP6 went in search of the deceased and found him at the side of the road bleeding and in an unconscious state. The deceased was brought to a Health Clinic in Plang where the Assistant Medical Officer (SP2) examined the deceased and certified him as having passed away.

SP7 conducted the post mortem on the deceased on 16.1.2018 and confirmed that the cause of death was as a result of a stab wound to the left side of the chest that had caused injury to a vital organ namely, the heart that also caused excessive bleeding which eventually led to the death of the deceased.

SP8 testified that the Appellant, supplied information where he agreed to show where he had hidden a knife. This information subsequently formed the contents of Gerik Police Report 334/18 (P49) dated 29.1.2018.

Thereafter SP8 and a team of police went to a house at No.54, Kg Jong, Gerik, Perak where the Appellant showed SP8 a knife hidden under a pillow in the downstairs room of the house.

The discovery of the said knife constituted the contents of Gerik Police Report 336/18 (P50), lodged by SP8. The fact of the discovery of the knife at the trial was admitted under the provisions of section 60(3) and section 8(2) Evidence Act 1950 (EA) as well as under section 27 EA respectively.

At the conclusion of the prosecution case, the Learned Judicial Commissioner (JC) found that the prosecution had proven a prima facie case and accordingly called upon the Appellant to make his defence.

After the alternatives were explained, the Appellant chose to give sworn evidence.

In his defence, the Appellant said that he had gone over to the scene in order to tell the deceased that he had not stolen the power bank. The Appellant also testified that he informed the deceased that he wanted him to repair the door to his house that was damaged when the deceased kicked in the door when he went there to ask about the power bank.

The Appellant testified that he could not have stabbed the deceased because when he approached the deceased in order to discuss about the power bank and the damaged door, he was restrained by Rosli and he was also held tightly by Mat Pen and Mat Nan.

As the Appellant was engaged in a struggle to break free from the clutches of Mat Pen and Mat Nan, he could not have stabbed the deceased. The Appellant also denied that he had both hands behind his back as though he was hiding something.

An examination of the grounds of judgement (grounds) written by the JC, will reveal that His Lordship had carefully evaluated and reasoned that from the nature and facts of the case, the case fell within the confines of section 300 (c) of the Penal Code.

The JC had also cited the seminal case of Virsa Singh v State of Punjab (1958) AIR 465 and laid out the necessary ingredients that constitute a case under section 300(c), which need not be reproduced here.

The JC then appropriately applied the principles of law enunciated to the facts of the case when he found inter alia, that the deceased had been positively identified by SP5 and SP6, that the deceased had died as a result of a stab wound relying on the evidence of SP5, SP6 and SP7, and that it was the act of the Appellant as testified to by SP5, SP6 and the expert evidence of SP7 that caused the death of the deceased.

The JC also alluded at some length to the testimony of the pathologist, SP7 which was that the deceased had died as a result of a stab wound to the heart of the deceased.

It is significant that the heart was a vital organ and any injury to this organ would result in death of the deceased.

According to SP7, the excessive bleeding was exacerbated by the deceased running away from the Appellant with the latter in hot pursuit. In such a situation according to SP7, the condition of the heart beating fast combined with the injury to the chest area had caused excessive bleeding which led to the death of the deceased.

SP7 further testified that the knife (P23) was an object that could have caused the injuries sustained by the deceased.

The JC concluded by relying on the above, that the mens rea of the Appellant fell within section 300(c) Penal Code.

It is also important to note here that the prosecution evidence regarding the stabbing of the deceased by the Appellant was based upon direct evidence namely, that of SP5 and SP6.

The JC based upon all the evidence, was thus correct in concluding that the prosecution had made out a prima facie case against the Appellant and in calling for him to make his defence.

The defence of the Appellant, as alluded to above, is that that he had gone over to the scene in order to tell the deceased that he had not stolen the power bank.

The Appellant also testified that he informed the deceased that he wanted him to repair the door to his house that was damaged when the deceased kicked in the door when he went there to ask about the power bank.

The Appellant denied having stabbed the deceased because he said that when he approached the deceased in order to discuss about the power bank and the damaged door, he was restrained by Rosli and he was also held tightly by Mat Pen and Mat Nan.

The Appellant also denied that he had both hands behind his back as though he was hiding something.

The JC had thus rightly concluded that the defence was a mere denial.

The JC had in his grounds also made a positive finding that the eye witness evidence of SP5 and SP6 which was direct evidence was credible and prevailed over that of the Appellant.

The defence had submitted that the death of the deceased could have been avoided if he had received timely medical attention. It was pointed out that according to the evidence, the deceased had received medical attention more than an hour after the stabbing.

The JC in his grounds had reasoned that from the facts of the case, after the deceased was stabbed, he had to flee as he was pursued by the Appellant while still wielding a knife.

This as noted earlier, according to the evidence of SP7, had caused excessive bleeding due to increased heartbeat of the deceased. As a result of the deceased fleeing the scene, SP5 and SP6 took some time to find him and thereafter took time to find a car to bring the deceased to the clinic.

The whole sequence of events that ultimately led to the death of the deceased, was the direct consequence of the actions of the Appellant and excluded any intervening event having occurred.

The JC had in his grounds said that the whole series of events from the time of the stabbing of the deceased until he collapsed at the side of the road must be looked at holistically and not in a truncated fashion.

The JC was correct in coming to this finding based upon the facts and circumstances of the case.

The defence also submitted that the credibility of SP5 and SP6 were suspect because they had failed to lodge a police report about the incident. It was also contended that the time frame between the date of the incident on 15.1.2018 until the trial had raised the possibility of an afterthought on the part of SP5 and SP6.

The JC in his grounds that from the evidence it was clear that SP5 and SP6 had acted in such a manner that they had wanted to prevent the death of the deceased by searching for him after he had fled from the pursuit of the Appellant and thereafter securing transport in order to bring the deceased to a clinic.

The JC said the allegations against SP5 and SP6 were thus unfounded just because they had omitted to lodge a police report. The JC also said that SP5 and SP6 had also related the event to the police and had given evidence in court regarding the incident.

The JC further stated that despite persistent cross examination by learned defence counsel, the evidence of SP5 and SP6 remained unshaken and reinforced the fact that it was the Appellant alone who was responsible for the death of the deceased.

The JC in his grounds also gave cogent reasons for the connection between the act of the Appellant in stabbing the deceased with a knife and the discovery of the knife (P23) as a result of the information supplied by the Appellant while in custody which in turn indicated the Appellant's knowledge of the existence and whereabouts of the said knife.

This piece of evidence arose when as result of investigation conducted by SP8, the Appellant gave information that led to the discovery of a knife.

As a result of the information given, SP8 and a team of police proceeded to a house at address no.54, Kg Jong, Gerik, Perak where the Appellant showed SP8 a knife under a pillow in a room at the lower floor of the house.

SP8 lodged a police report Gerik Report 336/18 dated 29.1.2018 in connection with the discovery of the said knife.

Such evidence was clearly admissible under the provisions of section 27 EA. The said section reads: "27. How much of information received from accused may be proved.

When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved." [55] The relevancy of this includes knowledge on the part of the Appellant as to the existence of the knife and the fact that the said knife was under his possession or under his control. [56] The act of the Appellant in showing the police where the knife was also admissible under section 8(2) EA and also section 60(3) EA as correctly found by the JC. [57] All of this further enabled the court to make the inference that it was the intention of the Appellant to inflict injuries upon the deceased by using a knife. Direct evidence of SP5 and SP6 [58] This evidence combined with the testimony of SP5 and SP6 that they saw the deceased approaching the deceased with both hands behind his back and then in stabbing the deceased and continuing in pursuit of the Appellant while attempting to stab him again, constituted irrefutable evidence that it was the Appellant alone who was responsible for the death of the deceased. Motive [59] The Appellant also had clear motive for wanting to inflict such injuries upon the deceased over the latter's accusation against him for the theft of the power bank. Conduct under section 8(2) EA [60] The JC still further alluded to the fact that the Appellant had remained in hiding in the jungle for a period of about 10 days before he was arrested on 27.1.2018 which he said was a fact that was relevant and material in proving that the Appellant hid himself for fear of detection and apprehension by the authorities. [61] This, concluded the JC had direct relevance to a fact in issue and that is whether it was the Appellant who had caused the death of the deceased and that conduct was admissible under the provisions of section 8(2) EA. The JC also referred to illustration (i) of the section which read: "...(i) A, is accused of a crime. The facts that after the commission of the alleged crime he absconded,...are relevant." [62] The JC had here again given cogent reasons for deciding the way he did based upon the relevant facts of the case and the principles of law and evidence applicable. Provocation [63] Learned counsel for the Appellant submitted further that the JC had failed to consider that there were circumstances that gave rise to provocation under the exception to section 300 Penal Code, namely, exception 1(a). The said exception reads as follows: "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:

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

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;

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." [64] Counsel for the defence submitted the following acts of provocation by the deceased:

the deceased kicked the back door of the Appellant's house until it opened up;

The deceased entered the house of the Appellant in an aggressive manner with a loud voice and in an angry state;

the deceased continuously accused the Appellant of having in his possession the power bank even though this was denied by the Appellant;

the deceased said things that raised the ire of the Appellant when he accused the Appellant of having the power bank and that he intended to sell the power bank by uttering "kalau nak jual powerbank itu, jual jauh jauh". [65] Learned counsel for the Appellant submitted that the provocation was neither at any time was sought for by Appellant. On the other hand, it was submitted that the provocation was one that was raised by the deceased based upon the actions by the deceased stated above. [66] The defence also alluded to the evidence of SP5 that confirmed the Appellant suffered from a mental illness and that he had met an accident and was prescribed medication but that he had not taken his medication. [67] The defence thus submitted that the reaction of the Appellant on the date in question constituted grave and sudden provocation that fell within Exception 1 to section 300 Penal Code. [68] The facts of the case however, reveal that there was an interval of time between the acts of the alleged provocation at the house of the Appellant and the time when the Appellant went to the house of Mat Pen to inflict the fatal injuries on the deceased. [69] Nothing untoward happened at the house of the Appellant when the deceased confronted the Appellant regarding the missing power bank. [70] The unfortunate incident only took place when the Appellant thereafter went over to Mat Pen's house. [71] Although, this was not long after the incident at the Appellant's house, there nonetheless was an interval of time that had elapsed. [72] The fact that the Appellant went over to Mat Pens house armed with a knife showed active premeditation on the part of the Appellant in searching out the deceased while armed with a knife. [73] This clearly indicates that there was no grave and sudden provocation. To exacerbate matters, the Appellant hid the knife behind his back when approaching the deceased thus indicating his clear intention to catch the deceased off-guard. [74] It was our considered view therefore, that the defence had failed to raise the defence of provocation. Suitability of the Appellant to stand trial [75] The Appellant, although upon being referred to the Hospital Bahagia Ulu Kinta for one-month psychiatric observation was diagnosed as being dependent upon drugs, the same psychiatric report stated that the Appellant was in a stable mental condition and was aware at the time of the incident of his actions and that he knew that his actions was wrong in law. [76] Under all the circumstances of the case, we saw no reason to interfere with the findings and the decision of the JC and find the conviction to be safe. In the upshot the appeal was dismissed. Dated: 5 October 2023 (COLLIN LAWRENCE SEQUERAH) JUDGE Court of Appeal Malaysia Putrajaya Counsel for the Appellant: Tetuan Nurul, Charan & Shabnam Peguam Bela & Peguam Cara Counsel for the Respondent: