Ringgie Anak Ampas v Pendakwa Raya (Q-05(M)-154-03/2019)

(i) that Entili anak Ampas had died;

(a) caused them with the intention of causing death; or 5

(b) caused them with the intention of causing such bodily injuries as the accused/appellant knew to be likely to cause death; or

(c) caused them with the intention of causing bodily injuries and such bodily injuries were sufficient in the ordinary 10 course of nature to cause death; or

(d) caused them knowing that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and did so without any excuse for incurring the risk of causing death, or such 15 injury. (see Sainal Abidin bin Mading v Public Prosecutor [1999] 4 CLJ 215; [1999] 4 MLJ 497 CA; Untung v Public Prosecutor [2023] CLJU 1168; [2023] 1 LNS 1168; [2023] MLJU 1352; [2023] 4 MLJ 929 para [11] [12] CA) 20 [9] The learned trial judge had also referred to section 300 of the Penal Code which encapsulates the definition of murder. The section reads:

Except in the cases hereinafter excepted, culpable 25 homicide is murder –

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

(b) 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;

(c) if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted 5 is sufficient in the ordinary course of nature to cause death; or

(d) if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and 10 commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid. It can be seen from the above definition that murder is an aggravated form 15 of culpable homicide and section 300 (a) (b) (c) and (d) of the Penal Code sets out the four conditions when culpable homicide turns into murder. [10] As explained in Sainal Abidin bin Mading, supra, there are four ingredients of the offence of murder. The fourth ingredient has four limbs 20 to it, viz, that in inflicting the injuries upon the deceased, the accused must be proved to have caused them under any one of the four conditions or circumstances prescribed in clauses (a) (b) (c) and (d) of section 300 of the Penal Code. Of relevance to the present appeal is the third limb or condition or circumstance provided under clause (c) of section 300 Penal 25 Code which requires proof that in inflicting the injuries upon the deceased, the appellant intended to cause bodily injuries and such bodily injuries were sufficient in the ordinary course of nature to cause death. [11] The learned trial judge stated that the prosecution gave notice that 30 they were relying on the third limb under section 300 of the Penal Code to prove their case against the appellant. [12] The death of the deceased on 21 May, 2017 is not disputed. This is a fact agreed by the prosecution and the defence in the Statement of Agreed Facts marked Exhibit D. The deceased’s death is thus proven. [13] The pathologist, Dr. Norliza bte Ibrahim (PW5), who performed the 5 post-mortem of the body of the deceased, confirmed that the cause of death was chest and intra-abdominal injuries due to gunshot wounds. This is also a fact agreed by the parties in Exhibit D. Hence, the learned trial judge correctly found that the deceased had died as a result of injuries suffered by him. 10 [14] With regard to whether the deceased’s injuries were caused by or the result of the act of the appellant, the learned trial judge accepted the direct evidence of PW2 who clearly saw the appellant holding the shotgun and firing it at the deceased. At that material time, only the appellant was 15 at the veranda of his house. The evidence of PW2 was substantially corroborated by PW3 who saw and heard the appellant calling out to the deceased to come out of his house and thereafter, PW3 heard the sound of the shotgun being fired. 20 [15] As for the 4th ingredient, which is, that the appellant inflicted the injuries with the intention of causing bodily injuries and such bodily injuries were sufficient in the ordinary course of nature to cause death, the learned trial judge found it proven. This is because the act of firing the shotgun, a deadly weapon, at the deceased would cause bodily injuries sufficient in 25 the ordinary course of nature to cause the death of the deceased. [16] After subjecting the prosecution’s evidence to maximum evaluation, the learned trial judge ruled that the prosecution had succeeded in making out a prima facie case against the appellant and called upon the appellant to enter his defence. In so ruling, the learned trial judge referred to and applied the high authorities of PP v Dato’ Seri Anwar bin Ibrahim (No.3) [1999] 2 CLJ 215; [1999] 2 MLJ 1 HC; PP v Mohd Radzi bin Abu Bakar 2005] 6 MLJ 393; [2005] 6 AMR 203; [2006] 5 1 CLJ 457 FC; Looi Kow Chai & Anor v PP [2003] 2 MLJ 65; [2003] 2 AMR 89; [2003] 1 CLJ 734; [2000] 2 MLRA 383; [2000] 2 AMR 89 CA; Balachandran v PP [2005] 1 CLJ 85; [2004] 1 LNS 517; [2005] 2 MLJ 301; [2005] 1 AMR 321 FC. 10 The Appellant’s Defence [17] The appellant elected to give sworn evidence. His evidence-in-chief was short. All he said was that on the morning of 21 May 2017, when he was at his own house, he heard the deceased quarrelling with his wife 15 (PW2) and his daughter, PW11. The deceased lived with his wife and daughter next door to him. Upon hearing them quarreling, he did not do anything and just stayed in his house. He denied that he had committed murder and denied owning a shotgun. 20 [18] Under cross-examination, he initially disagreed that he had lied in stating that he did nothing when he heard his late brother (the deceased) quarreling with his wife and daughter and just stayed in his house. However, he changed his story and stated as follows:

(a) He agreed that he had called out to his brother to come out of 25 his house and admitted to shooting him with a shotgun. This was because his brother had hit someone;

(b) He was at the veranda of his own house when he shot his brother and the time was between 11.00 and 11.30 a.m. that day;

(c) He had no intention to shoot his brother that morning with the shotgun but he did. This was because he could not stand it 5 when he heard his brother hitting his daughter and wife and heard them screaming for help;

(d) When asked as to what he did when he could not stand it he replied, “I thought that his daughter and wife had died, so I shot him.”;

(e) He agreed that having heard the screams that he had mentioned earlier, he did not go to his brother’s house but picked up the shotgun and shot him; and

(f) He claimed that he did not know whether his action in shooting his brother with a shotgun could kill him. 15 [19] In re-examination, the appellant stated as follows:

(a) He explained that the reason he said under cross-examination that he had no intention to kill his late brother was because the 20 latter kept on hitting his daughter; and

(b) when asked how did he know that his late brother kept on hitting his daughter, he replied that his late brother hit his daughter from the night until morning. 25 Key findings at the end of the Defence Case [20] Having considered the aforesaid evidence of the appellant, the learned trial judge found that the principal defence of the appellant to the charge of murder levelled against him is that of a grave and sudden provocation under Exception 1 of section 300 of the Penal Code. The essence of the appellant’s case is that he did not have the necessary intention to kill the deceased as he had lost his self-control upon hearing the quarrelling and shouting between the deceased, his wife and daughter 5 and his assumption that the latter were dead and thereby provoked to shooting at the deceased with the shotgun. [21] The trial judge affirmed the position in law that pursuant to s. of the Evidence Act 1950, and based on case law authorities, the burden 10 of proving that a case such as presently, which falls under the exception of grave and sudden provocation, in respect of s. 300 of the Penal Code, is on the appellant, on a balance of probabilities. [22] The learned trial judge found that the deceased 1s quarrelling and 15 shouting with his wife and daughter and the appellant’s assumption that they were dead, did not constitute grave and sudden provocation by the deceased. [23] Even if there was a grave and sudden provocation by the 20 deceased, the learned trial judge found that the appellant’s firing of a shotgun at the deceased was far too excessive and disproportionate to the provocation as the deceased was merely quarrelling with his wife (PW2) and his daughter (PW11) and posed no threat or danger to the appellant at all, thus not the reaction of a reasonable man under the 25 circumstances. Apart from that the High Court found that the appellant’s defence of not having the requisite intention to shoot and kill the deceased was a bare denial. [24] In all of the circumstances therefore, the learned HCJ found that the appellant had failed to establish the defence of grave and sudden provocation on a balance of probabilities and that instead, the prosecution had succeeded in proving its case against the appellant, as charged, beyond reasonable doubt. 5 The Appeal [25] The appellant advanced these issues as reflected in the Petition of Appeal, namely:

(a) The learned High Court Judge erred in finding that the appellant had failed on a balance of probabilities to bring himself within Exception 1 to section 300 of the Penal Code namely, grave and sudden provocation;

(b) The learned High Court Judge erred in finding that the deceased’s quarrelling and shouting with his wife and daughter do not constitute grave and sudden provocation; and

(c) The learned High Court Judge erred in finding that the appellant's firing of a shotgun at the deceased was far too 20 excessive and disproportionate to the provocation as the deceased was merely quarrelling with his wife (PW2) and daughter (PW11) and posed no threat or danger to the appellant at all, hence not the reaction of a reasonable man under the circumstances. 25 [26] It was argued for the appellant that whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. The appellant heard screams and feared for the lives of the deceased’s wife and daughter, thinking that they were hit and killed by the deceased. This, the appellant contended, was grave and sudden enough to prevent the offence from amounting to murder. [27] Further, the appellant had no intention to kill his late brother. He 5 heard the screams from the deceased’s house due to the latter’s abuse and thought that the deceased’s wife and daughter were dead. He also claimed that the deceased kept on hitting his daughter from the night until morning. We observed that the appellant’s claim that the deceased was hitting his daughter from the night until morning is entirely without basis as 10 PW11 (the deceased’s daughter) gave unchallenged evidence that her quarrel with her father was on the morning of the day in question, that it lasted for only about five minutes and her father had hit her twice only on the cheeks. 15 [28] The appellant argued that the provocation relied on was not only grave, but so sudden as to cause the appellant to lose his self-control and acted in spontaneous reaction to the grave provocation within the meaning of the aforesaid defence as explained in Public Prosecutor v Surbir Gole [2017] 2 CLJ 621; [2017] 1 MLRA 514;[2017] 1 MLJ 549; [2017] 2 AMR 20 397 FC. [29] With regard to the High Court’s finding that the appellant’s firing of a shotgun was far too excessive and disproportionate to the provocation, learned counsel for the appellant argued that the deceased was 25 intoxicated and drunk at the material time. PW12 (Hazalinawati binti Zallani) who prepared the Chemist report, counsel said, testified that the ethyl alcohol content of the blood sample of the deceased far exceeded the legal standard for any driver under the Road Transport Act 1987. However, we observed that the appellant never testified on the drunken state of the deceased at the material time. Neither did he mention that his brother’s drunken state was one of the factors causing him to lose his self-control. 5 [30] As for the test of grave and sudden provocation, the appellant relied on the test of a reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused was placed would be so provoked as to lose his self-control as propounded in Ikau Anak Mail v Public Prosecutor [1973] CLJU 51; [1973] 1 LNS 51; [1973] 10 2 MLJ 153 FC and Lorensus Tukan v Public Prosecutor [1988] 1 CLJ Rep 162; [1988] 1 CLJ 143 SC. We observed that there was no evidence adduced nor was there any elaboration from the defence as to the class of society the appellant supposedly belonged to. 15 [31] For the above reasons, the appellant contended that the trial judge had erred in law and in fact in finding that that the defence of grave and sudden provocation is not proven and the appeal ought to be allowed. Analysis and Findings of this Court 20 The elements of murder fulfilled [32] It must be emphasized that we agreed with the findings of the learned trial judge, which were not disputed by the appellant, that the 25 prosecution had proved that the appellant had committed the act which caused the death of the deceased. Bearing in mind the evidence of PW5 that the cause of death was chest and intra-abdominal injuries due to gunshot wounds, which was also a fact agreed by the parties in Exhibit D, the learned trial judge was correct in holding that the said act was done 30 with the intention of causing bodily injury which injuries were sufficient in the ordinary course of nature to cause death. Moreover, in line with the decisions of the Federal Court in Tham Kai Yau & Ors v Public Prosecutor [1976] CLJU 159; [1976] 1 LNS 159; [1977] 1 MLJ 174, Cheong Kam Kuen v Public Prosecutor [2012] 8 CLJ 537; [2013] 1 MLJ 5 15; [2012] 6 AMR 573 and Pubalan a/l Peremal v. Public Prosecutor [2020] 8 CLJ 306; [2020] 5 MLJ 442, we found that expert medical was available in this case for the High Court to affirmatively arrive at this finding on section 300 (c) of the Penal Code. 10 [33] We observed that on the intention or mens rea element of murder under clause (c) of s. 300 of the Penal Code, the appellant’s defence is that although his act of shooting the deceased with the shotgun was intentional, he had no intention to kill him as he was provoked. He claimed that he did not even know whether his act could kill his brother. In other 15 words, he was saying that his act of shooting the deceased with the shotgun did not amount to murder as there was no intention to kill nor any knowledge that it would likely kill the deceased even though his act resulted in the death of the deceased. In our considered view, this argument is flawed. 20 [34] In this regard, we took note of the recent decision of the Federal Court in Zulkiple bin Mohamad v Public Prosecutor [2022] 1 MLJ 479; [2022] 1 CLJ 673 which provides a succinct explanation on the ‘intention’ element of murder under clause (c) of s. 300 Penal Code in these terms: 25 “[53] The ‘intention’ or the mens rea element of murder under cl (c) of s 300 of the Penal Code must not be coalesced with the ‘intention’ or the mens rea element of murder under cl (a). Under cl (a), death is the intended 30 consequence and death results as intended, whereas under cl (c), death is not the intended consequence but death results, not because death is intended but because the bodily injury intended to be inflicted is of a kind that is sufficient in the ordinary course of nature to cause death.” 5 (underline added) [35] Thus, we were in no doubt that the appellant’s act was murder under cl. (c) of s. 300 of the Penal Code, not because it was done with the 10 intention of causing death, or with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death, or with the knowledge that it was likely to cause death, or because it was so imminently dangerous that it must in all probability cause death, but because the injuries were intentionally inflicted and the injuries were 15 sufficient in the ordinary course of nature to cause death. As PW5 had testified, the cause of death was chest and intra-abdominal injuries due to gunshot wounds. This, in our considered view, effectively means that the injuries were of a kind that was “sufficient in the ordinary course of nature to cause death” within the meaning of cl. (c) of s. 300 Penal Code. 20 [36] Based on the foregoing analysis, it is clear that the elements of the offence of murder had been proved. However, the appellant had raised the defence of grave and sudden provocation, which if successful would result in a conviction of the lesser offence of culpable homicide not 25 amounting to murder or manslaughter. The law on defence of provocation [37] As earlier stated, the principal issue in this appeal essentially 30 revolves around the question whether the appellant had succeeded in establishing the defence of grave and sudden provocation. It is therefore important to set out below the applicable statutory provisions on this defence, which are found in Exception 1 of section 300 of the Penal Code: “Exception 1 – Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by 5 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; 15

(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 20 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.” 25 [38] The Court of Appeal in Untung v Public Prosecutor [2023] CLJU 1168; [2023] 1 LNS 1168; [2023] MLJU 1352; [2023] 4 MLJ 929 provides a succinct analysis on the aforementioned statutory provision as well as 30 referring to case law authorities on what considerations could amount to grave and sudden provocation. Mohd Nazlan Mohd Ghazali JCA, for the Court, stated as follows: “[38] Based on this statutory provision, it is now settled law that in order to bring a case within the exception it is imperative that 35 the following facts be established. First, the accused must have committed the act whilst being deprived of the power of self-control. Secondly, he must have been so deprived because of the provocation. Thirdly, the provocation must have been grave and sudden. Fourthly, the provocation must not have been sought by the accused, or voluntarily provoked by him or her as an excuse for doing the act. And fifthly, the provocation must not have been given by anything done in obedience to the law or by 5 a public servant in the lawful exercise of his powers as such, or by anything done in the lawful exercise of the right of private defence. [39] Further elaboration on what considerations could amount to 10 a grave and sudden provocation may be found in the Federal Court decision in Che Omar bin Mohd Akhir v Public Prosecutor [2007] 4 MLJ 309; [2007] 3 CLJ 281 where the Nik Hashim FCJ, for the court, held: 15 [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 MLJ 211; [1985] 1 CLJ 20 150; [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 25 accused, (see Ratanlal & Dhirajlal, The Indian Penal Code (29th Ed) 2002 p 1194). [15] The test of grave and sudden provocation was clearly stated in the Supreme Court case of Lorensus Tukan v 30 Public Prosecutor [1988] 1 MLJ 251; [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 35 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). 40 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 45 the particular idiosyncrasies of the accused: Madhavan v State of Kerala [1966] AIR Ker 258 (260). [16] It is also said that the defence of provocation is a dual one: the alleged provocative conduct must be such as: (i) 5 actually causes in the accused; and (ii) might cause in a reasonable man, a sudden and temporary loss of self-control as the result of which he kills the deceased. [17] Thus, in order to successfully set up provocation as 10 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 15 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, 20 having regard to the nature of the provocation. (See Ratanlal & Dhirajlal, p 1192; Vijayan v Public Prosecutor [1975] 2 MLJ 8; [1975] 1 LNS 189). [40] As such, whether there was a grave and sudden provocation 25 which did cause an accused to lose self-control is a question of fact, and that it must also be shown — as an objective test — whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed (but any particular idiosyncrasies of the accused to be disregarded) 30 would be so provoked as to lose his self-control. As succinctly stated by the Federal Court in Ikau Anak Mail v Public Prosecutor [1973] 2 MLJ 153: “To succeed in a defence of grave and sudden provocation, 35 it is necessary in law for the defence to satisfy the court that not only by the act 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”. 40 [41] And in the process, the nature of the retaliation by the accused, having regard to the nature of the provocation may also be considered by the court.” (Underline added) 45 [39] Based on the pronouncements above in the cases of Untung v Public Prosecutor, supra; Che Omar bin Mohd Akhir v Public Prosecutor [2007] 4 MLJ 309; [2007] 3 CLJ 281 FC; Lorensus Tukan v Public Prosecutor [1988] 1 CLJ Rep 162; [1988] 1 CLJ 143 SC; Ikau Anak Mail v Public Prosecutor [1973] CLJU 51; [1973] 1 LNS 51; [1973] 5 2 MLJ 153 FC, it is well settled that in order to successfully set up provocation as a defence, 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, belonging to the same class of society as the 10 accused, placed in the situation in which the accused was placed (but any particular idiosyncrasies of the accused to be disregarded), to lose his self-control and induced him to do the act which caused the death of the accused. In determining that question, the court may also consider, along with other factors, the nature of the retaliation by the accused, having 15 regard to the nature of the provocation (see Untung v PP, supra at para [41]; Che Omar Mohd Akhir, supra at para [17]; Bangkong ak Puan v Public Prosecutor [2013] 1 MLJ 293; [2012] CLJU 950; [2012] 1 LNS 950 CA). 20 Whether on the facts of the case there was grave and sudden provocation [40] As stated in the explanation to s. 300 of the Penal Code, whether the provocation was sufficiently grave and sudden to prevent the offence 25 from amounting to murder is a question of fact. Given the critical reliance that must be placed on the facts of the case vis-à-vis the defence of grave and sudden provocation, it was essential for the learned trial judge to subject the evidence of the appellant to careful scrutiny. The evidence of the appellant has been set out earlier in detail at paras [17] to [19] ante and we were satisfied that the learned trial judge had carefully considered them. [41] This is what the learned trial judge stated in the GOJ in respect of 5 whether the provocation given by the deceased was grave and sudden on the facts of the case: “46. Whether the provocation given by the Deceased was grave and sudden, is a question of fact. The evidence relied upon by the defence in raising provocation are as follows. The 10 Accused contended that because he heard the Deceased quarrelling with his wife and daughter, heard the screaming arising therefrom, assumed that they were dead, lost his self control and was provoked to shoot the Deceased, these factors constituted grave and sudden provocation.

As alluded to earlier, the test of whether grave and sudden provocation exists, is to be judged by the standard of the reasonable man. See Lorensus Tukan v. Public Prosecutor [1988] 1 CLJ Rep 162; [1988] 1 MLJ 251 which held as follows: 20 "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 25 Nanavati v. State of Maharashtra AIR [1962] SC 605 530)."

Would a reasonable person act as the Accused did under the circumstances? The acts relied upon by the Accused, to show evidence of sudden and grave provocation on the part of 30 the Deceased, was the Deceased's quarrelling and shouting with his wife and daughter, the Accused's assumption that they are dead, lost his self control, constituted grave and sudden provocation by the Deceased and this caused the Accused to lose his self-control and was provoked to shoot the Deceased.

If the Deceased's quarrelling and shouting with his wife and daughter, the Accused's assumption that they were dead, lost his self control and was provoked to shoot the Deceased, constituted grave and sudden provocation by the Deceased, 40 the next stage of inquiry would be whether the injury inflicted was proportionate to the provocation. It is trite that the test of whether provocation exists is to be judged by the standard of the reasonable man. That being the case, in the assessment of the reasonableness of the Accused's actions, it has to be considered as a matter of necessity whether a reasonable man would be so provoked as to act as the Accused did. Therefore 5 it must follow that if a reasonable man would not have resorted to the degree of retaliation as the Accused did, then it must also follow that the proportionality of the reaction to the provocation would be a relevant factor to consider. The consideration of proportionality is relevant to the issue of 10 provocation, the case of Bangkonq ak Puan (l) v. Public Prosecutor [2012] 1 LNS 950 is pertinent where the court held; "The appellant alleged that the deceased stabbed him first and it was this act of grave and sudden provocation that 15 purportedly caused him to lose his self-control and retaliate. We find that even if this allegation was true, the brutal manner in which the appellant retaliated was not proportionate to the provocation." 20

This Court finds that the Accused's contention of grave and sudden provocation by the Deceased is not credible and without basis as the Deceased's quarrelling and shouting with his wife and daughter and his assumption that they were dead, do not constituted grave and sudden provocation by the 25 Deceased as the Accused was never a party to Deceased's quarrelling and shouting with his wife and daughter. Neither was his erroneous assumption that they were dead.

Even if there grave and sudden provocation by the 30 Deceased, this Court finds that the Accused's firing of a shotgun at the Deceased was far too excessive in proportionate to the provocation as the Deceased was merely quarrelling with his wife (PW2) and his daughter (PW1 1) and posed no threat or danger to the Accused at all. Why was there 35 a need to resort to the drastic measure of firing a shotgun which is deadly weapon, at the Deceased? It is therefore this Court's finding that the manner in which the Accused reacted to the quarrel and shouting between the Deceased, his wife and daughter, by firing a shotgun at the Deceased, is not the 40 reaction of a reasonable man under the circumstances.

ln all of the circumstances therefore, this Court finds that the Accused has failed on a balance of probability to bring himself within Exception 1 to section 300 of the Penal Code 45 namely, provocation.” [42] It can be seen from the passages quoted above that the learned trial judge had appreciated and correctly so, that the test of whether a grave and sudden provocation exists is to be judged by the standard of the reasonable man. The trial judge, based on evidence largely derived from the testimony of the appellant himself, found that the acts relied upon 5 by the appellant to show evidence of grave and sudden provocation on the part of the deceased were, the latter’s quarrelling and shouting with his wife and daughter, the appellant’s assumption that wife and daughter were dead, causing him to lose his self-control and was provoked to shooting the deceased. The learned trial judge then went on to ask the right 10 question – would a reasonable man placed in the particular circumstances in which the appellant was placed, would be so provoked as to lose his self-control? (see Untung v PP (supra) at para [40]; Che Omar Mohd Ahkir v PP , supra at para [17]; Lorensus Tukan v Public Prosecutor, supra; Ikau Anak Mail v PP, supra). In determining that question, the 15 learned trial judge had also rightly considered the nature of the retaliation by the appellant, whether it was proportionate to the provocation. (see Untung v PP, supra at para [41]; Che Omar Mohd Akhir, supra at para [17]. In Bangkong ak Puan v Public Prosecutor, supra, at para [16] the Court held: 20 “The appellant alleged that the deceased stabbed him first and it was this act of grave and sudden provocation that purportedly caused him to lose his self-control and retaliate. We find that even if this allegation was true, the brutal manner 25 in which the appellant retaliated was not proportionate to the provocation.” [43] On the contention of the appellant of grave and sudden provocation 30 by the deceased that had actually caused in him a sudden loss of self-control, the learned trial judge found it to be not credible and without basis as the appellant was never a party to the deceased’s quarrelling and shouting with his wife and daughter. Neither was the appellant’s erroneous assumption that they were dead, a grave and sudden provocation. There was no reason for us to disagree with this finding by the learned High Court Judge as based on the unchallenged testimony of PW11 (the daughter), 5 although she was slapped twice by her father that morning, the quarrel lasted for only about five minutes. A short quarrel where the appellant was not even a party to, should not have so provoked a reasonable man placed in the appellant’s situation to lose his self-control. 10 [44] Be that as it may, the learned trial judge had also determined that in any event, if there was grave and sudden provocation by the deceased, the appellant’s firing of the shotgun at the deceased was far too excessive and disproportionate to the provocation as the deceased was merely quarrelling with his wife and daughter and posed no threat or danger to 15 the appellant at all. The trial judge was of the view that there was no need to resort to the drastic measure of firing a shotgun, which is a deadly weapon, at the deceased. It was therefore the trial judge’s finding that the manner in which the appellant had reacted to the quarrelling and shouting between the deceased, his wife and daughter by firing a shotgun at the 20 deceased thereby killing him, was not the reaction of a reasonable man under the circumstances. We could not have agreed more with the learned trial judge on his finding. In our considered view, the reaction of the appellant to the perceived provocation from the deceased by shooting at him with the shotgun thereby killing him was not the reaction of a 25 reasonable man placed in the same situation as the appellant. [45] We accordingly found no valid basis to disturb the finding of the learned trial judge on the failure to establish the defence of grave and sudden provocation. Conclusion 5 [46] In light of the foregoing analysis and reasons, and bearing in mind the evidence before the learned High Court Judge, we found no error in his findings and the manner as to how he had arrived at his conclusion. In our judgment the appellant had failed to establish the defence of grave 10 and sudden provocation on the balance of probabilities and he had also failed to raise any reasonable doubt as to his guilt. There being no appealable error on the part of the learned trial judge as to warrant our appellate intervention, and as we found no reason to disturb the findings of the learned trial judge, on the totality of the evidence, we found the 15 conviction safe. [47] We therefore unanimously dismissed the appeal before us and affirmed the conviction and sentence of death handed down by the High Court. 20 sgd (SUPANG LIAN) Judge Court of Appeal Malaysia 25 Putrajaya Date: 29th September, 2025 30 For the Appellant (Accused): Harold Emparak Anak Kerobo [GAPOR & CO. ADV.] For the Public Prosecutor: Mohd Dusuki Bin Mokhtar Muhammad Azmi Bin Mashud 5 [Jabatan Peguam Negara (AGC)] Cases referred to Balachandran v PP [2005] 1 CLJ 85; [2004] 1 LNS 517; [2005] 2 MLJ 10 301; [2005] 1 AMR 321 FC (refd) Bangkong ak Puan v Public Prosecutor [2013] 1 MLJ 293; [2012] CLJU 950; [2012] 1 LNS 950 CA (followed) Che Omar bin Mohd Akhir v Public Prosecutor [2007] 4 MLJ 309; [2007] 3 CLJ 281 FC (refd) 15 Cheong Kam Kuen v Public Prosecutor [2012] 8 CLJ 537; [2013] 1 MLJ 15; [2012] 6 AMR 573 FC (refd) Ikau Anak Mail v Public Prosecutor [1973] CLJU 51; [1973] 1 LNS 51; [1973] 2 MLJ 153 FC (refd) Looi Kow Chai & Anor v PP [2003] 2 MLJ 65; [2003] 2 AMR 89; [2003] 1 20 CLJ 734; [2000] 2 MLRA 383; [2000] 2 AMR 89 CA (refd) Lorensus Tukan v Public Prosecutor [1988] 1 CLJ Rep 162; [1988] 1 CLJ 143 SC (refd) PP v Dato’ Seri Anwar bin Ibrahim (No.3) [1999] 2 CLJ 215; [1999] 2 MLJ 1 HC (refd) 25 PP v Mohd Radzi Abu Bakar [2005] 6 MLJ 393; [2005] 6 AMR 203; [2006] 1 CLJ 457 FC (refd) PP v. Surbir Gole [2017] 2 CLJ 621; [2017] 1 MLRA 514;[2017] 1 MLJ 549; [2017] 2 AMR 397 FC (refd) Pubalan a/l Peremal v. Public Prosecutor [2020] 8 CLJ 306; [2020] 5 MLJ 30 442 FC (refd) Sainal Abidin bin Mading v Public Prosecutor [1999] 4 CLJ 215; [1999] 4 MLJ 497 CA (refd) Tham Kai Yau & Ors v Public Prosecutor [1976] CLJU 159; [1976] 1 LNS 159; [1977] 1 MLJ 174 FC (refd) Untung v Public Prosecutor [2023] CLJU 1168; [2023] 1 LNS 1168; 5 [2023] MLJU 1352; [2023] 4 MLJ 929 CA (refd) Zulkiple bin Mohamad v Public Prosecutor [2022] 1 MLJ 479; [2022] 1 CLJ 673 FC (followed) Legislation referred to 10 Evidence Act 1950, s 105 Penal Code, ss 300, 302 Road Transport Act 1987 15