Muhammad Irshaduddin Khalis Bin Nasurudin v Pendakwa Raya (J-05(M)-230-06/2017)

After a full trial, the appellant was convicted and imposed with the mandatory death sentence pursuant to section 302 of the Penal Code. This is his appeal against the conviction and sentence. Facts of case [3] The deceased worked as a sales assistant in the Econsave Supermarket in Kluang, Johor. On 10.4.2015, at about 5.30 p.m., while the deceased was having a break with her colleague (SP9), the appellant, the exfiance of the deceased, came to ask the deceased to go out because he wanted to give her a gift.

At that time SP12 and SP11, who also worked in the said Supermarket, were smoking about 10 meters from the motorcycle parking space and saw the appellant and deceased at the motorcycle parking space. SP12 and SP11 heard a loud and heated argument between the appellant and the deceased. Page 3 of 12 [5] SP12 then saw the appellant holding the deceased’s head and knocked the deceased’s head against a motorcycle which caused her to fall down. The deceased managed to get up and the appellant took out a knife and stabbed the deceased. The appellant ran away and SP12 ran into the Supermarket to seek help. SP9 upon being told that an employee of the Supermarket was stabbed, rushed to the scene and saw a knife stuck in the left back side of the deceased’s chest with blood oozing from the wound.

The deceased was rushed to and arrived at the hospital about 6.00 p.m., with the knife stuck in her back. A doctor (SP1) tried to save the deceased but failed and pronounced the deceased dead. The pathologist (SP10), who carried out the post mortem, testified that the cause of death was due to the stab wound to the chest of the deceased. The post mortem report was tendered as exhibit P35. Judgment in the High Court [7] In his grounds of judgment, the learned judge stated that it was not in dispute that the prosecution had established the death of the deceased who was identified by her father (SP13) and SP10 at the post mortem. SP10 testified that the cause of death was due to the stab wound to the chest which was fatal.

The learned judge ruled that the testimony of SP12, that he saw the appellant stabbing the deceased which led to her death, was not seriously challenged and that his testimony had been corroborated by SP11 and SP9. Page 4 of 12 [9] The learned judge made a finding of facts that the appellant brought the knife with him to meet the deceased where he held her head and knocked it against the motorcycle and stabbed her once with the knife which was fatal in nature. The learned judge therefore dismissed the contention of the appellant that he only intended to cause hurt and did not have the necessary intention to kill. The learned judge ruled that the prosecution had established a prima facie case against the appellant for the offence under section 302 of the Penal Code and called upon the appellant to enter his defence.

The learned judge then referred the appellant to a psychiatrist after SD2 and SD3 testified that the appellant appeared to be of unsound mind when he was on remand in prison. The psychiatric report however stated that the appellant was not of unsound mind and was fit to stand trial and able to make his defence.

The appellant testified that after the deceased decided to break off the engagement, he became depressed and sad. He decided to go to see her to give her a watch as a farewell gift because he would be going to a religious school in Kedah. The appellant said he ‘tidak tahu rasa apa, mungkin rasa marah’ after the deceased told him “tak nak apa-apa lagi dari kau” and “aku dah tak suka engkau” and he then stabbed the deceased. The learned judge however dismissed the defence of grave and sudden provocation because the appellant during cross-examination testified that he was not so mad that he was unable to control himself after he heard what the decease said to him.

At the end of the trial, the learned judge found that the prosecution had proven its case beyond reasonable doubt against the Page 5 of 12 appellant and that the appellant had failed to raise any reasonable doubt on the prosecution’s case. The learned judge then convicted and sentenced the appellant according to the law. The case for the appellant [13] The appellant had filed his written submission and counsel for the appellant informed us that he would raise two issues, namely that there was no eye witness to the stabbing and that the appellant had successfully raised the defence of grave and sudden provocation.

On the first issue, counsel submitted that the learned judge failed to consider that there was no eye witness to the stabbing except SP12. It was submitted that SP12’s evidence had not been corroborated and that SP12 was not a credible witness. It was submitted that SP11 and SP9 did not see the stabbing and SP11 testified that he did not know the deceased and could not identify the appellant at the police station because the appellant was wearing a cap during the incident. It was submitted that the learned judge erred because the CCTV recording did not show that the deceased returned the gift.

On the second issue, counsel submitted that the appellant was crying and distraught after hearing the news that the deceased had broken off the engagement. The appellant then went to see the deceased asking her to reconsider and gave her a watch as a gift but she refused to accept it. It was submitted that the appellant felt humiliated and angry when the deceased said “aku dah tak suka engkau” and he lost control. He was provoked and he stabbed her out of anger. Page 6 of 12 [16] It was submitted that it was not premeditated and that the appellant had no intention to kill. He only intended to cause hurt to her and denied knowing that his act would cause death to the deceased. It was submitted that the conviction and sentence should be set aside and to substitute a more suitable order. The Respondent’s submission [17] The Respondent submitted that SP12 saw the appellant pushing the deceased against the motorcycle and then stabbed her with the knife and that the evidence of SP12 had been corroborated by the CCTV recording (P10) of the incident. It was submitted that SP9 had identified the appellant as the person who went to ask the deceased to go out while she and the deceased were having their break at the Supermarket. After SP9 heard that the deceased had been stabbed, she rushed out and saw the knife still stuck in the deceased. It was submitted that the learned judge did not err in his finding of facts that the appellant had stabbed the deceased which caused her death.

It was submitted that the evidence of SP10 was not in dispute, that the stab wound to the chest was fatal and that the cause of death was due to the stab wound. It was submitted that the appellant brought the knife which was kept in his pocket when he went to see the deceased and then stabbed the deceased with it.

The Respondent submitted that there was no fight or sudden fight and there was no grave and sudden provocation as the appellant had alleged. It was submitted that what the deceased had said to the appellant that “tak suka engkau” could not amount to a grave and Page 7 of 12 sudden provocation which did not come within the exception under section 300 of the Penal Code.

It was submitted that based on the appellant’s conduct in knocking the deceased’s head against the motorcycle and then stabbing her with the knife was premeditated and that he had committed the offence under section 302 of the Penal Code. Our decision [21] Based on the evidence adduced and the submissions made, it was not in dispute that (i) the appellant and the deceased were previously engaged; (ii) the deceased then broke off the engagement;

(iii) the appellant was saddened by the decision and went to see the deceased at the Supermarket to give to her a watch and asking her to reconsider; (iv) SP9 was with the deceased when the appellant asked the deceased to go out of the Supermarket; (v) SP12 and SP11 were smoking outside the Supermarket near the motorcycle parking space and saw what happened; (vi) SP9, SP11, SP12 and the deceased were working at the Supermarket; (vii) SP9 identified the appellant as the person who asked the deceased to go out; (viii) SP12 identified the appellant as the person who knocked the decease’s head against a motorcycle and stabbed the deceased; and (ix) when SP9 heard about the stabbing, she went out to look and saw the deceased on the ground with the knife stuck in her. On the evidence before us, the identification of the appellant was not in dispute. [22] Although the appellant submitted that there was no eye witness apart from SP12 whose evidence had not been corroborated and not reliable, the appellant however never denied that he stabbed the Page 8 of 12 deceased. The appellant had submitted that he did not intend to kill and only intended to cause hurt to the deceased. These contradictory submissions put paid to his contention that there was no eye witness or that he did not stab the deceased. The photographs from the CCTV recording (P10) had sufficiently corroborated the evidence of SP12 that the appellant stabbed the deceased. There was no merit in the submission that SP12 was not a reliable or credible witness. These were findings of facts. In his judgment, the learned judge had carefully considered the evidence and we find no appealable error his finding of facts as such. Therefore there was no merit on the first issue raised by counsel for the appellant. [23] On the next issue, was there any grave and sudden provocation as the appellant had submitted? It has been held that 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. It is not enough to show that he was provoked into losing his self-control. He must go on to show 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. The question whether the provocation was grave and sudden such as to make the accused lose his control is a question of fact and not one of law: Che Omar Mohd Akhir v PP [2007] 3 CLJ 281; Public Prosecutor v Surbir Gole [2017] 1 MLJ 549; Asis bin Lako v Public Prosecutor [2017] 6 MLJ 483. [24] Based on the appeal record, in the morning on the day of the incident, the appellant heard the news from the family of the deceased Page 9 of 12 who had decided to break off the engagement and the appellant became distraught. He decided to go to a religious school in Kedah. After the deceased had broken off the engagement, it was apparent the deceased did not love him anymore but he decided to go to see her at the Supermarket to ask her to reconsider. [25] He went at about 5.30 p.m. At that time the deceased was having a break from work together with SP9. There was no evidence that the appellant looked or was agitated or angry or distraught or that he behaved in an unruly or unusual manner at that time. There was no evidence that the anger had been building up and that he was on the edge since the morning he heard the news of the break-off which boiled over when he heard the deceased saying to him “tak suka engkau”. There was also no evidence that there were constant quarreling or fighting between them before she broke off the engagement or that their relationship was acrimonious so that he was easily provoked by anything she said to him. Based on the time frame, there was sufficient time for him to reflect and discuss with his family about the break-off and sufficient cooling period before he went to see the deceased. [26] The appellant did not submit that he was provoked by the quarrel at the motorcycle parking space. It was submitted that he was provoked by what she said, namely “tak suka engkau”. Did the words uttered were sufficient to deprive him of the power of self-control and that he had lost control of himself? On the facts and circumstances of the case, the words spoken by the deceased to the appellant that she “tak suka engkau”, which he would expect to hear, and not out of the blue or out of suddenness, when he went to see her to reconsider Page 10 of 12 because she had already decided to break off the engagement that morning, did not and could not amount to grave and sudden provocation and the words spoken were not so grave and sudden to have made him lose his self-control and induced him to do the act which caused the death. Any reasonable man, belonging to the same class of society as the appellant and in the given situation, would not have been so provoked by the words spoken or by the rejection. Any reasonable man would have walked away after that. [27] The evidence showed that after the deceased said to him that she “tak suka engkau”, he held her head with both of his hands and knocked her head against a motorcycle which made her fall down. After he had knocked her head, the appellant could have walked away and there was no reason and no need for him to stab her. It was not as if he grabbed the knife from nearby after he was provoked. Instead he brought the knife which he kept in his pocket when he went to see her and took it out to stab the deceased after she rejected him. Clearly it was planned or premeditated. The fact that he brought the knife to stab her contradicted the appellant’s contention that it was because of the grave and sudden provocation which made him lose control so as to induce him to stab the deceased as a result. The appellant had failed to prove on a balance of probabilities that there was grave and sudden provocation. The learned judge was correct to reject the defence of grave and sudden provocation. [28] For the same reason that he brought the knife to stab the deceased, it clearly showed his intention to stab her instead of walking away. He could have just cut or slash one of her limbs but he stabbed the deceased in the back on the left lower chest wall. The blade of the Page 11 of 12 knife was six inches long which was stuck in the inner part of the chest cavity which cut the left lung severing the intercostal vessels and left lung tissue causing extensive bleeding causing the left lung to collapse. SP10 had testified that the stab wound to the chest was fatal in nature. The deceased died shortly after she was stabbed. The evidence contradicted his submission that he only intended to cause hurt and not to kill or that he did not know that it would cause death. There was no reasonable explanation why he stabbed her in the chest or why he could not have walked away instead of stabbing her bearing in mind that there was no sudden fight, nor threat to his life and it was not in self-defence. The defence of the appellant had failed to raise any reasonable doubt in the prosecution’s case. [29] The act and the manner of the appellant in holding the deceased’s head and knocking her head against a motorcycle and causing her to fall down and then stabbing her in the chest which was fatal in nature came within section 300 and section 302 of the Penal Code. On the evidence adduced, the prosecution had proven the charge against the appellant beyond any reasonable doubt. [30] We have scrutinized the appeal record and found no appealable error on the part of the learned judge in his grounds of judgment or that his decision was plainly wrong which would require appellate intervention. We were unanimous that there were no merits in the appeal which was dismissed and we affirmed the order of the High Court on the conviction and sentence. Page 12 of 12 Dated: 09th May, 2019 signed STEPHEN CHUNG HIAN GUAN (delivering judgment of the court) Court of Appeal Judge Putrajaya For Appellant : S. Vijaya Retnam @ Veizay Messrs. Veizay & Company For Respondent : DPP Samihah binti Rhazali Attorney General Chambers