Pendakwa Raya v GOPU A/L LAKSHMANAN (J-05(SH)-125-03/2024)

GOPU A/L LAKSHMANAN

SURESH A/L VELLASAMY (NRIC NO.:800114-01-6875) …RESPONDENTS [In the Matter of The High Court of Malaya At Muar

Rengadorai A/L Perumal

Gopu A/L Lakshmanan (NRIC No.: 810727-01-6711)]

Suresh A/L Vellasamy (NRIC No.:800114-01-6875)] CORAM AZMAN BIN ABDULLAH, JCA NOORIN BINTI BADARUDDIN, JCA HAYATUL AKMAL BINTI ABDUL AZIZ, JCA JUDGMENT [1] The Respondents, together with one Rengadorai a/l Perumal (hereinafter referred to as “the First Accused”) and one Mohammad Jopri bin Norsalim (“Jopri”), were charged with the offence of murder punishable under section 302 of the Penal Code, read together with section 34 of the same Code. The charge preferred against them reads as follows: “Bahawa kamu bersama-sama seorang lagi yang masih bebas pada tarikh 13.9.2015 di antara jam lebih kurang 6.30 petang sehingga tarikh 14.9.2015 jam lebih kurang 8.30 pagi, bertempat di sebuah kebun kelapa sawit, Kampung SC, 81850 Layang-layang dalam daerah Kluang, di dalam negeri Johor Darul Takzim, dalam melaksanakan niat bersama kamu telah melakukan bunuh hingga menyebabkan kematian ke atas ARIS BIN NAKAM (No. KP: 710528-01-5857). Oleh yang demikian kamu bersama-sama telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan dan dibaca bersama seksyen 34 kanun yang sama.” [2] During the course of the trial, Jopri passed away. Consequently, on 5 November 2019, the prosecution applied for and was granted a discharge and acquittal in respect of him. The trial thereafter proceeded against the First Accused and the present Respondents. [3] At the close of the defence, the learned High Court Judge acquitted the First Accused and the Respondents of the charge under section 302 of the Penal Code. However, the learned Judge found them guilty of the lesser offence of culpable homicide not amounting to murder under section 304(a) of the Penal Code, read together with section 34 of the same Code. The sentences imposed were as follows:

the First Accused — thirteen (13) years’ imprisonment from the date of arrest; and

the Respondents — fifteen (15) years’ imprisonment from the date of arrest. [4] The Public Prosecutor appealed against the whole of the decision of the learned High Court Judge. The appeal against the First Accused, however, was struck out for want of service of the Notice of Appeal. [5] This, therefore, is the Public Prosecutor’s appeal against the entire decision of the learned High Court Judge in so far as it relates to the conviction and sentence of the Respondents under section 304(a) of the Penal Code. Background Facts [6] The deceased in the present case was one Aris Bin Nakam (NRIC No.: 710528-01-5857) (hereinafter referred to as “the deceased”). [7] On 13 September 2015 at approximately 3.00 p.m., SP12 left his house on foot with the intention of going to a location commonly referred to as a “port” to obtain drugs. The said “port” was situated within an oil palm plantation in the vicinity of Kampung AC Jaya Sepakat. Upon reaching the main road, SP12 boarded a motorcycle ridden by his acquaintance known as “Atih”, who subsequently dropped him off at the said location within the plantation. [8] Upon arrival, SP12 noticed the presence of the deceased and was surprised, as he had never previously seen the deceased at that location. [9] SP12 observed that the deceased was in a squatting position and was being assaulted by the First Respondent, the Second Respondent, and another Indian male whose name was unknown to SP12 (whom SP12 subsequently identified as the First Accused). At the material time, the weather was clear, and visibility within the plantation was unobstructed. [10] SP12 attempted to intervene and stop the assault. However, the First Respondent threatened him by brandishing a ‘parang’ at the back of his neck and warned him to leave and not to interfere. The First and Second Respondents, together with the First Accused, continued to assault the deceased, who appeared to be crying. [11] Fearing for his safety, SP12 left the scene and returned home to seek assistance from his friends. He went to the house of SP15, but SP15 was unable to render any help. SP12 thereafter returned to his own house. [12] On 14 September 2015 at about 4.00 a.m., while SP12 was seated outside his house, a friend known as “Lin” arrived and informed him that the First Respondent had instructed that he come to collect the deceased. [13] SP12 then proceeded to the “port” on the pillion of Lin’s motorcycle. Upon arrival, he found the First Respondent, the Second Respondent, and the First Accused present at the location. The deceased was lying motionless on oil palm fronds and was not speaking. SP12 observed that the deceased was shirtless and had sustained multiple injuries on his body. SP12 then placed his own jacket on the deceased. [14] SP12 pleaded with the First Respondent to take the deceased to a clinic. The First Respondent subsequently contacted SP10 and requested him to come and collect the deceased. [15] Thereafter, SP12, together with another male, transported the deceased by motorcycle to the main road in the Kampung Paya area. They waited by the roadside within the oil palm plantation, where the deceased was propped against a palm tree. [16] SP10 later arrived on a motorcycle, followed by an ambulance carrying SP18 and SP19. The deceased was then transported to Klinik Layang-Layang, where he was pronounced dead. [17] A post-mortem examination conducted by SP8 revealed that the deceased had sustained a total of forty-two (42) injuries. The post-mortem report (P35) confirmed that the cause of death was head injuries resulting from blunt force trauma. The High Court’s Findings [18] It is pertinent to note that the proceedings at the prosecution stage were initially conducted before the learned High Court Judge, YA Dato’ Muhammad Jamil bin Husin (as he then was). The trial was thereafter continued before YA Datuk Wira Haji Ahmad Nasfy bin Haji Yasin (as he then was), and subsequently before the learned Judicial Commissioner (“JC”), YA Tuan Awang Armadajaya bin Awang Mahmud (as he then was). [19] A total of twenty-four (24) prosecution witnesses were called to testify. At the close of the prosecution’s case, the learned JC found that the prosecution had successfully established a prima facie case against the First Accused and the Respondents, and accordingly called upon them to enter their defence. Thereafter, the proceedings at the defence stage were taken over by the learned High Court Judge, YA Dato’ Sri Shamsulbahri bin Haji Ibrahim, who heard and determined the case to its conclusion. [20] At the close of the prosecution’s case, the learned High Court Judge was satisfied that a prima facie case had been established and that all the essential elements of the offence under section 302 of the Penal Code had been proved, upon a consideration of the evidence of the prosecution witnesses. The findings may be summarised as follows:

Identity of the deceased [21] The identity of the deceased was duly established through the evidence of SP12 and SP16, as reflected in the photographs marked P37(1) to (6). This was further corroborated by the testimony of SP18, who conveyed the deceased in an ambulance, and SP8, who conducted the post-mortem examination. Notably, the identity of the deceased was never disputed by any of the accused persons.

(ii) Cause of death [22] The learned Judge found that the severe injuries sustained by the deceased were the cause of death. SP8 confirmed that there were 42 injuries on the body of the deceased. The injuries to the head were consistent with blunt force trauma, such as that caused by punching, kicking, or similar forceful impact. SP8 further testified that the oval-shaped contusions and other injuries on the head were likewise consistent with blunt force trauma inflicted by cylindrical objects such as a rod, iron bar, baton, or similar instruments. [23] SP8 also confirmed that the rattan cane marked P14A was capable of causing such injuries. Similarly, the machete/‘parang’ marked P15A(1) could inflict incised wounds as well as blunt force injuries depending on the part used, including the flat side of the blade, the back of the blade, or the handle. SP8 explained that the swelling of the brain tissue observed in the deceased resulted from external head injuries caused by impact to the face or head. [24] Crucially, SP8 opined that the injuries concentrated on the face and head, particularly those itemised as injuries 29 to 35 in P35, were in themselves sufficient and of such gravity as to cause death in the ordinary course of nature. SP8 further confirmed that the injuries, especially those to the head, were severe and life-threatening, with only a minimal chance of survival.

(iii) Acts and common intention of the Respondents [25] The learned Judge was satisfied that the acts and common intention of the First Respondent and the Second Respondent, together with the First Accused, in causing the injuries to the deceased had been established. This finding was grounded on the direct eyewitness testimony of SP12 and the statement of Jopri (P54). [26] SP12 testified that he clearly saw the First Respondent assaulting the deceased with a machete/’parang’ and a piece of wood, and even stomping on the deceased’s face in a frenzied manner. The Second Respondent, together with the First Accused, were also seen assaulting the deceased using similar weapons. When SP12 attempted to intervene, the Second Respondent threatened him with a machete/’parang’. The learned Judge accepted SP12’s direct evidence and rejected the contention that the witness was an interested witness, noting that his testimony was corroborated and consistent with the account given by Jopri in P54. [27] In P54, Jopri confirmed that it was the First Respondent who instructed him to bring the deceased to the location in question. At that location, Jopri witnessed both the First and Second Respondents assaulting the deceased. He further observed the Second Respondent striking the deceased with a machete/’parang’ and hitting the deceased’s head with the handle of the machete/’parang’, while the other assailant used a rattan cane. [28] Despite strong objections from the defence, the learned High Court Judge admitted and relied upon the statement in P54, having been satisfied that it fell within the ambit of section 32(1)(i) of the Evidence Act 1950. [29] However, at the close of the defence case, the learned High Court Judge, having rejected the alibi advanced by the Respondents and the First Accused and having found that the defences raised were mere afterthoughts had concluded that, in assaulting the deceased, they did not possess the requisite intention to cause his death. The learned High Court Judge reasoned as follows: “[74] Berdasarkan kepada P38 adalah jelas simati mengalami 42 kecederaan. Namun saya mendapati kebanyakan kecederaan berupa lebam dan calar di pinggang, jari, lengan, siku, bahu, ketiak, dada, dagu, mata, dahi, keting, buku lali, lutut dan peha simati. Bagaimanapun tiada tulang yang patah. Pada bahagian kepala terdapat pendarahan bawah kulit namun tidak terdapat sebarang tanda pecah kepada tengkorak simati. Pada pandangan saya selain kecederaan di muka dan kepala, kecederaan lain adalah tidak fatal yang boleh menyebabkan kematian simati. Ini diakui oleh SP8 semasa pemeriksaan utama menyatakan sebagaimana berikut: S: Daripada 42 kecederaan yang doktor dapatkan berkenaan dengan pemeriksaan pada simati ini, kecederaan yang manakah lazimnya sufficient to cause death kepada simati dalam kes ini? J: Kecederaan-kecederaan yang ftertumpu pada bahagian muka dan kepala ialtu kecederaan 29 hingga 35 ditambah dengan kecederaan huruf a dan b pada bahagian kepala adalah sufficient enough cukup signifikan untuk menyebabkan kematiannya. ….. [76] Selain itu, melihat kepada kecederaan yang dialami oleh simati, saya berpandangan ketiga-tiga OKT tidak berniat untuk membunuh simati semasa memukulnya. Ini kerana dengan menggunakan senjata khususnya parang, secara munasabahnya ketiga-tiga OKT boleh sahaja mematikan simati dengan segera dan mudah (sama ada dengan menikam atau menetak simati) yang pada ketika itu tidak mempunyai sebarang senjata untuk mempertahankan diri dan kemudian melupuskan mayat simati supaya tidak diketahui atau ditemui oleh orang ramai. Sebaliknya, simati masih sedar semasa ditemui oleh SPi2 sebelum dibawa keluar bagi dihantar ke klinik kesihatan. [77] Berdasarkan kepada pemerhatian di atas, saya berpuas hati tanpa keraguan munasabah bahawa ketiga-tiga OKT atas niat bersama bahawa ketiga-tiga OKT telah melakukan kesalahan mendatangkan bencana tubuh sebanyak 42 yang menyebabkan kematian si mati namun ia tidak terjatuh kepada niat membunuh dengan sengaja seperti Mana maksud di bawah s. 300 KK tetapi terjatuh pada peruntukan s. 299 KK yang menyatakan — “Whoever causes death by doing an act with the Intention of causing death, or with the intention of causing bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death commits the offence of culpable homicide.” [78] Sehubungan itu, membebaskan ketiga-tiga OKT daripada pertuduhan di bawah s. 302 KK dan sebaliknya mensabitkan mereka atas kesalahan di bawah s. 304(a) KK dengan niat menyebabkan bencana tubuh kepada si mati tanpa niat membunuh.” Parties’ Contentions [30] It is contended on behalf of the Appellant/Prosecution that the learned High Court Judge fell into error in amending the original charge from one under section 302 of the Penal Code read together with section 34 of the Penal Code to a charge under section 304(a) read together with section 34 of the Penal Code at the close of the defence case. It is submitted that such amendment was unwarranted in light of the evidence adduced, which, it is argued, was sufficient to sustain a conviction against the Respondents on the original charge as preferred. [31] On the other hand, it is the Respondents’ contention that the learned High Court Judge had correctly evaluated the evidence and amended the charge in line with section 158 of the Criminal Procedure Code. Our Findings The Law and the Applicable Principles [32] At the outset, it is necessary to restate the governing legal principles under section 300 of the Penal Code. The provision defines culpable homicide amounting to murder through four distinct limbs. It is trite that the establishment of any one of these limbs is sufficient to sustain a conviction for murder. [33] In the present appeal, the prosecution’s case rests squarely on the third limb of section 300 of the Penal Code namely that the accused persons intentionally inflicted bodily injury, and that such injury was sufficient in the ordinary course of nature to cause death. [34] The law in relation to section 300(c) of the Penal Code is well settled. The enquiry is predominantly objective. Once it is shown that: i. a bodily injury was inflicted; ii. the injury was intentionally inflicted, and iii. the injury is sufficient in the ordinary course of nature to cause death, the offence of murder is made out, irrespective of whether there was any intention to cause death. [35] This principle has been consistently affirmed in authorities such as Virsa Singh v State of Punjab [1958] SC 465, Rajwant Singh v State of Kerala 1966 SC 1874, Mohamed Yasin bin Hussin v PP [1976] 1 MLJ 156, and more recently by the Federal Court in Zulkiple Mohamad v PP [2022] 1 CLJ 673. [36] In Rajwant Singh v State of Kerala (supra), the Court explained: “The third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary cause of nature to cause death. In this clause the result of the intentionally caused injury must be viewed objectively. If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended to causing death or not and whether the offender had a subjective knowledge of the consequences or not.” [Emphasis added] [37] In Mohamed Yasin bin Hussin v PP (supra), the Privy Council stated: “To establish that an offence had been committed under section 300(c) or under section 299, it would not have been necessary for the trial judges in the instant case to enter into an enquiry whether the appellant intended to cause the precise injuries which in fact resulted or had sufficient knowledge of anatomy to know that the internal injury which might result from his act would take the form of fracture of the ribs, followed by cardiac arrest. As was said by the Supreme Court of India when dealing with the identical provisions of the Indian Penal Code in Virsa Singh v State of Punjab AIR 1958 SC 465 at p 467: “that is not the kind of enquiry. It is broad-based and simple and based on commonsense.” [38] This Court in Aziz Mat Shah v PP [2010] 4 CLJ 305 further explained limb (c) of section 300 of the Penal Code as follows: “…It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause injury of a kind that is sufficient to cause death in the ordinary cause of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. No one has a license to run around inflicting injuries that are sufficient to cause death in the ordinary cause of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional. Now, in asking the question of whether the accused intended to inflict the injury actually found to be present, V Bose J, said that the enquiry must proceed along “broad lines.” And the issues to be considered would be “whether there was an intention to strike at a vital or dangerous spot” and “whether with sufficient force to cause the kind of injury found to have been inflicted.” But his Lordship said that “it is not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or kidneys or the heart.” Otherwise, according to his Lordship, someone with no knowledge of anatomy could never be convicted. So the enquiry, according to his Lordship, is therefore “broad-based and simple and based on commonsense. It is our judgment that even if the appellant here intended to inflict only a relatively minor injury, and if the injury that he in fact inflicted pursuant to that intention was an injury sufficient in the ordinary course of nature to cause death, the provisions of the third limb to s. 300 of the Penal Code would be attracted. We must emphasise, to borrow the words of V Bose J, in Virsa Singh v. State of Punjab (supra), that “no one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder…” [Emphasis added] Findings on the Evidence [39] Upon a careful re-evaluation of the evidence, we find that the prosecution had established all the requisite elements under section 300(c) of the Penal Code. [40] Foremost, there is no dispute as to the death of the deceased. The identity of the deceased was conclusively established and never challenged. [41] Secondly, the cause of death was clearly proven through the cogent and unshaken evidence of the forensic expert (SP8). The deceased sustained a total of 42 injuries, with particular concentration on the head and facial regions. These injuries were consistent with blunt force trauma inflicted by hard objects, including weapons such as a machete/‘parang’ and a rattan cane. [42] Crucially, SP8 confirmed that the injuries to the head and face were severe, fatal in nature, and sufficient in the ordinary course of nature to cause death. [43] The medical evidence further established brain swelling, subarachnoid haemorrhage, and other intracranial injuries, all of which led to the deterioration of consciousness and ultimately death. There was no evidence of any pre-existing condition contributing to the deceased’s death. [44] Thirdly, the acts of the Respondents were firmly established through direct eyewitness testimony. SP12 witnessed the Respondents repeatedly assaulting the deceased with weapons, including striking and stomping on the deceased’s head. This evidence was corroborated by the statement of Jopri (P54), which was properly admitted under section 32(1)(i) of the Evidence Act 1950. [45] The totality of this evidence irresistibly points to a concerted assault by the Respondents, resulting in the fatal injuries sustained by the deceased. [46] The central issue in this appeal concerns whether the learned High Court Judge erred in amending the charge from section 302 to section 304(a) of the Penal Code at the close of the defence case. [47] In our judgment, the learned Judge fell into error. Having, at the close of the prosecution’s case, undertaken a maximum evaluation of the evidence and found that a prima facie case under section 302 of the Penal Code had been established, the learned Judge was thereafter required to consider whether the defence had raised a reasonable doubt. [48] Instead, the learned Judge revisited and reversed the earlier findings without any new evidential basis. This approach runs contrary to established principles as articulated by the Federal Court in Duis Akim & Ors v PP, which makes it clear that once a maximum evaluation has been conducted, the focus at the defence stage is whether the defence has raised a reasonable doubt. [49] In the present case, the alibi defence was rejected, and no credible evidence was adduced to displace the prosecution’s case. There was therefore no basis for the learned High Court Judge to depart from the earlier findings. [50] The learned High Court Judge further erred in holding that there was no intention to cause death on the basis that the Respondents could have inflicted more immediately fatal injuries, for instance by stabbing or slashing the deceased. This reasoning betrays a fundamental misdirection in law. Under section 300(c) of the Penal Code, it is not necessary for the prosecution to prove an intention to cause death, nor even an intention to cause an injury sufficient to cause death. It suffices that the accused intended to inflict the injury that was in fact inflicted. [51] The authorities are unequivocal on this point. As emphasised in Zulkiple Mohamad v PP (supra), the relevant inquiry is whether the injury was intentionally inflicted not whether the accused appreciated its fatal consequences. In that case, the Federal Court stated: “[46] The law is now settled that it is irrelevant and totally unnecessary to enquire into what kind of injury the accused intended to inflict. As Vivian Bose J said in Virsa Singh, the question is not whether the accused's intention is to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. In the present case, the injuries that were proved to be present and which the appellant intended to inflict were the injuries on the deceased's head which fractured her skull. [47] It is clear therefore that where the prosecution relies on cl.

of s. 300 of the Penal Code, it is not required to prove intention to cause bodily injury of a kind that is sufficient in the ordinary course of nature to cause death. All that is required is proof of intention to inflict the injury that is proved to be present, irrespective of whether the injury is grievous or trivial. [48] In the context of the present case, proof of that intention is the appellant's deliberate act of hitting the deceased's head with the baseball bat, which is totally unrelated to the question whether he intended to cause injury that is sufficient to cause death in the ordinary course of nature.” [52] In the present case, the Respondents deliberately and repeatedly struck the deceased on the head, a vital and vulnerable part of the body with considerable force using dangerous weapons. Such conduct plainly satisfies the intent requirement under section 300(c) of the Penal Code [53] We also agree with the Prosecution/Appellant that the learned High Court Judge erred in relying on Cheong Kam Kuen v PP [2012] 8 CLJ 537. That case is clearly distinguishable on its facts. In that case, the fatality arose from a combination of non-fatal injuries, and the expert evidence did not establish that any particular injury was sufficient in the ordinary course of nature to cause death. In contrast, the present case involves clear and consistent expert evidence that the injuries to the head and face were, in themselves, sufficient to cause death in the ordinary course of nature. Accordingly, Cheong Kam Kuen vPP (supra) has no application to the facts before us. Conclusion [54] In light of the foregoing, we are satisfied that the prosecution had proved beyond reasonable doubt that the Respondents intentionally inflicted bodily injuries on the deceased; i) the injuries were sufficient in the ordinary course of nature to cause death; and ii) the case falls squarely within section 300(c) of the Penal Code. The learned High Court Judge’s decision to amend the charge to section 304(a) of the Penal Code was therefore plainly erroneous and occasioned a miscarriage of justice. [55] Accordingly, the appeal is allowed. The conviction under section 304(a) of the Penal Code is set aside and substituted with a conviction under section 302 of the Penal Code. The Respondents are hereby convicted as charged. Each Respondent is sentenced to 30 years’ imprisonment and 12 strokes of whipping, with the term of imprisonment to run from the date of arrest. Dated: 26 March 2026 Sgd Noorin Binti Badaruddin Judge Court of Appeal Malaysia LIST OF COUNSELS: For the Appellant: Mohd Asnawi Bin Abu Hanipah [Deputy Public Prosecutor Attorney General’s Chamber] For the 1st Respondent:

T. Vijaya Sandran A/L Tangavelu; and

V. Pushparajan [Vijaya Sandran & Assosiates (Kluang)] For the 2nd Respondent:

S. Vijaya Retnam @ Veizay;

Subash Ramasamy; and

Khairuzzaman Ridha [(Veizay & Company (Kluang)]