Risman Abbas v Pendakwa Raya (Q-05(M)-440-09/2017)

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1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: Q-05(M)-440-09/2017 BETWEEN RISMAN ABBAS … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT (IN THE MATTER OF CRIMINAL TRIAL NO. BTU-45B-1/4-2016 IN THE HIGH COURT OF SABAH AND SARAWAK Between PUBLIC PROSECUTOR … COMPLAINANT And RISMAN ABBAS … ACCUSED) 2 CORAM: ABDUL RAHMAN BIN SEBLI, HMR RHODZARIAH BINTI BUJANG, HMR KAMALUDIN BIN MD. SAID, HMR GROUNDS OF JUDGMENT Brief facts of the case

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(1) The appellant, a Bugis of Indonesian nationality and aged 28 years old at the material time when he was arraigned in the High Court of Bintulu, was accused of murdering his fellow countryman and colleague at the back of a surau of the factory where both were working. The charge, in Bahasa Malaysia reads as follows: Bahawa kamu pada 3 April 2015 pukul lebih kurang 5.30 petang, bertempat di belakang surau Okutai Timber Product, Bintulu di dalam negeri Sarawak telah melakukan pembunuhan dengan menyebabkan kematian seorang lelaki bernama Surahman Lasaile warganegara Indonesia No Paspot A3338392 oleh yang demikian kamu telah 3 melakukan kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan. He was convicted by the learned High Court Judge, Lee Heng Cheong J on 7/9/2017 and sentenced to the mandatory death sentence and this judgment is in respect of his appeal against both the said conviction and sentence. The undisputed facts

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(2) Most of the material facts which form the background of the incident that led to the death of the deceased are largely undisputed. The first of these is that both the appellant and the deceased worked with a company, Okutai Timber Product in Bintulu and that both stayed at the workers quarters provided by the company, albeit at different blocks. These two blocks however shared a common staircase. The second fact is that the appellant was the culprit who inflicted the injuries on the deceased – he said so as much in his defence although he had his own reasons for doing so and which to him exculpated him from the charge of murder. The third is that the deceased’s death was caused by the multiple cuts to his thoracic vertebrae and to the middle as well as to the lower lobe of his right lung as a result of the stab wounds to his chest which, according to PW10 (Norliza binti Ibrahim) who did the autopsy and prepared the post-mortem report (Exhibit P31) was in turn 4 caused by a sharp object such as a knife. As a result of the said wounds the deceased suffered massive loss of blood. That fatal wound was amongst the 15 injuries found on the deceased’s body, all caused by a sharp object as stated earlier.

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(3) That sharp object, a knife was produced at the trial and marked as Exhibit P17A and its sheath as Exhibit 17B. The fact that it was used by the appellant to stab the deceased was beyond any doubt despite the appellant’s denial in his defence of using it because of firstly, the evidence of PW21, Ponong Kadang Paga, also a worker of the company who, on the way back from work, heard a voice calling for help and saw the deceased leaning against the back wall of the surau with the appellant’s left hand on the deceased’s shoulder whilst the right hand was on the chest. When he pulled the appellant away, PW21 saw that the appellant was holding a Bugis knife on his right hand. Secondly, this knife was scientifically proven as the murder weapon because the deceased’s DNA was found by the chemist, PW7 (Rina binti Md Nawi @ Rizak) from the blood stain on it. Finally, it was also an undisputed fact that the appellant surrendered himself to the police when they arrived at the scene shortly after the incident.

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(4) Premised on the above evidence, the learned High Court Judge had rightly arrived after a maximum evaluation of the evidence adduced 5 by the prosecution at the finding that a prima facie case has been made out against the appellant under section 180 of the Criminal Procedure Code for had the appellant remained silent after his defence was called, he should be rightly convicted of the charge [see Public Prosecutor v Mohd Radzi bin Abu Bakar (2006) 1 CLJ 457]. The defence

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(5) Herein lies the crux of the appeal for his line of defence was not a single one but was threefold although framed in the alternative and they were, in the words of his counsel in the written submission before us:

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(1) Grave and Sudden Provocation, under Exception 1 to section 300 of the Penal Code.;

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(2) In the alternative, the Right of Private Defence, under Exception 2 to section 300 of the Penal Code.; and

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(3) In further alternative, the defence of Sudden Fight, under Exception 4 to section 300 of the Penal Code. Grave and sudden provocation

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(6) The learned High Court Judge at paragraph 36 rejected the defence of grave and sudden provocation and in paragraph 37 said even if there was such grave and sudden provocation the injuries 6 inflicted on the deceased was excessive and not proportionate to the provocation. The said paragraph are reproduced below:

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(7) Learned counsel for the appellant have rightly acknowledged that in order to succeed in this defence, the provocation must be both grave and sudden and whether it was so is a question of fact and not one of law as propounded by the Supreme Court in Lorensus Tukan v Public Prosecutor (1981) 1 CLJ 143 as follows: “The test of ‘grave and sudden’ provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control (see Nanavati v State of Maharashtra AIR [1962] SC 605 530). In determining what amounts to grave and sudden provocation the court may take into account the habits, manners and feelings of the class or community to which the accused belongs, but not of the particular idiosyncracies of the accused: Madhavan v State of Kerala AIR [1996] Ker 258 (260).

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(8) The ‘reasonable man test’ as propounded above was also reiterated in the Federal Court’s decision of Ikau Anak Mail v PP (1973) 2 MLJ 153 as follows: 8 To succeed in a defence of grave and sudden provocation, it is necessary in law for the defence to satisfy the court that not only by the acts 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. To determine if the test has been satisfied, the appellant’s sworn testimony as to what happened on the fateful day is narrated below: The appellant testified that the deceased was a known dealer of dangerous drug at the company’s factory and an incorrigible (our word, not his) borrower of money from his work colleagues including the appellant. He said in October 2014 he lent the deceased RM300 and every end of the month right up to the day of the incident, he demanded repayment of the loan from the deceased but to no avail. Instead the deceased scolded him for making the repeated demands for repayment. The last demand was made by him after he bumped into the deceased at the staircase of their workers quarters which angered the deceased who according to the appellant, proceeded to scold and threaten him before kicking him on his buttock and chasing the appellant up to his room on the third floor. The appellant said this prompted him to take the Bugis knife from under the mat in his room just to scare the deceased. However, he said the deceased tried to attack him, chased 9 after him until he reached the back of the surau and that was when he used the knife on the deceased. The appellant was the sole witness for his defence.

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(9) We are mindful of the fact that there was no eye-witness to the start of the altercation between the two of them but despite that and even if we accept the truth of what the appellant said above, it still did not satisfy this defence of grave and sudden provocation of his for these reasons. Firstly, the fight between them which resulted in the kick to the appellant’s buttock may be sudden but that kick on the buttock and the chase could not by themselves and by any stretch of imagination amount to a grave provocation which justifies the taking of the knife and deceased’s life. This is especially so when there was material contradictions in the evidence of the appellant as to whether the deceased entered his room or not when he went in to procure the knife because if the deceased did not, there was absolutely no reason why he could not just closed the door to the deceased’s face and locked the door or if there was no lock, to just lean his weight against it to prevent the deceased from entering. The evidence, as highlighted by the learned Deputy Public Prosecutor in his written submission reads as follows: 10 Q9: Where was he? (meaning the deceased) In front of the door of my accommodation Q11: Why? Because it happened so quickly and he also went into my accommodation then I ran. Q12: You said now he just in front of your door not coming inside your accommodation. So which one is true? He does not go inside my accommodation. (ROA vol 2 page 216) Q3: In cross examination, you said that the deceased was in front of the door to your quarters when you were taking the knife, subsequently you said that the deceased had come into your quarters and then you said that he was in front of the door and did not come into your accommodation. Can you explain the contradiction? It happened so quickly at that time, he was chasing me and I took the knife and he was chasing me again (ROA vol 2 page 224)

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(10) The learned High Court Judge was fully entitled to find that the appellant was not a credible witness for not just the above contradiction but also others such as the reason why he took the knife from his room. He first said it was to scare the deceased but then in cross-examination he agreed that it was because he was angry due to the failed demands 11 for repayment. Then he again contradicted himself when he agreed in cross examination he was holding the knife and pointing it towards the deceased’s face (in the notes of proceeding it was recorded as “… holding the knife and headed towards the deceased face … “ ) in the struggle at the back of surau but which in re-examination he said these: Q12: Do your recall the knife that you had used heading towards the deceased face at the “surau”? No Q13: Then can you explain why did you agree with the learned DPP in cross examination, that you had the knife headed towards the deceased face when there was a struggle between you and the deceased? In order to scare the deceased. (ROA vol 2 page 216)

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(11) Further as held by the Federal Court in Che Omar Mohd Akhir v PP (2007) CLJ 281, one of the factors that the court must consider when this particular defence is raised is the nature of the retaliation by the accused, having regard to the nature of the provocation. In other words the retaliation must be proportionate to the provocation. Now in this case, going back to the room to get the knife and stabbing the deceased on the chest with it as well as inflicting the other 14 multiple injuries on him simply because of a kick on the butt and the scolding 12 could not, again by any stretch of imagination be proportionate to the provocation given. In fact it was way too excessive under the reasonable man test. The fact that the appellant, according to the evidence of PW21, immediately ceased his attacks on the deceased and dropped the knife when PW21 grabbed him from behind does not, with respect to his counsel, shows evidence that he had a sudden and temporary loss of control when attacking the deceased but most likely due to the sudden appearance of PW21 at the scene. Speaking of self-control, the fact that the Investigating Officer agreed that the appellant had ‘hilang pertimbangan’ or lost self control does not absolve the court from undertaking the exercise of determining whether the legal test of the defence of grave and sudden provocation had been satisfied and we have indicated earlier that it was not. That admission by the Investigation Officer does not change our mind one bit on this.

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(12) Learned Counsel for the appellant in his written submission also relied on this court’s decision in Public Prosecutor v Subir Gole (2015) 2 MLJ 642 where it was held that:

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(3) The reaction of the respondent was proportionate with the provocation. The fact that there were 43 injuries found on the deceased did not affect the matter adversely to the respondent 13 because a reaction to provocation necessary involves lack of ability to exercise restraint or to judge a situation with insight and balance. (emphasis added) That decision had been affirmed by the Federal Court [see Public Prosecutor v Subir Gole (2017) 1 MLJ 549]. Nonetheless, the said decision is distinguishable on the facts because as pointed out by the Federal Court the deceased prior to the incident had constantly and on a daily basis been mistreated by the respondent ‘by the use of harsh and abusive words’ such as ‘mad, crazy, stupid, cow and bastard’ and that a few days before the incident, the abusive words became worse. Here the incident and altercation happened almost instantenously and on the spot. It was also submitted by learned counsel for the appellant that the conduct of the appellant in not running away after the incident – just went back to his room to shower and dressed and then surrendering himself to the police when they arrived slightly one hour after the incident shows that the crime was not pre-meditated but committed because of the grave and sudden provocation. Again we were unable to accede to this reasoning for such contrition and remorse, though laudable cannot by itself be corroborative of the defence. 14 Learned counsel for the appellant also raised the admission by the Investigating Officer (PW20) that he never investigated the words which were allegedly uttered by the deceased in scolding the appellant. So it was then put to the witness that : Q26: Therefore, you cannot rule out the fact that the deceased was scolding the accused may have threatened him with words in “Bahasa Indonesia” amounting to “I will kill you or I will get my friends to beat you up”. Do you agree? I agree. Q27: Do you agree with me that these threatening words if said by the deceased would amount to grave and sudden provocation? I agree. Then in re-examination, PW20 was asked this question: “Q5: Can you explain why the words used by the deceased not being investigated by you when he was scolded by the accused? I did not investigate because I forgot. Q6: Is that correct? Yes.”

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(13) Now, we could not give much credence or weight to the aforesaid admission because as can be seen from the notes of proceeding, the appellant himself did not at the first opportunity in his examination in chief and nor in the cross-examination told the court 15 what were the words used by the deceased to scold him. The alleged threatening words were only mentioned in his re-examination and this whittles away the weight to be given to the said words. However, even if we were wrong to say so, the fact that such words were uttered could not in our view be proportionate to the retaliatory act of the appellant in taking and using the knife to cause, again we emphasised, the 15 injuries on the deceased. Further, as per his own evidence in re-examination at page 228 of the AR Vol 2, the appellant said after he took the knife from underneath the mat, he went outside to show the knife to the deceased to scare him but the deceased said he still wanted to beat him up and kill him. This caused him to run to the surau. We failed to understand how a man with a weapon must ran away from an unarmed man who threatened him with empty words. The sheer improbability of that conduct alone defies logic. The appellant had raised in the submission of his counsel that the deceased was one with a bad character and that the court should, in evaluating his defence consider this to support the defence of grave and sudden provocation. We accept the fact that the deceased was a known drug dealer in the factory who constantly borrowed money as stated by his colleague (PW21) and acknowledged in the Investigating Officer’s (PW20) evidence in that his investigation revealed that the deceased 16 was a drug trafficker. However the fact that he was one does not in the facts and circumstances of this case lend credence to the defence of grave and sudden provocation for any man, whether good or bad, is capable of giving such a provocation. It all depends, as we just said, on the facts and circumstance of the case. For these reasons we also agree with the rejection of this defence by His Lordship. Sudden fight

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(14) Exception 4 to section 300 stipulates that culpable homicide is not murder if it is committed in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Therefore there are in that Exception multiple requirements before it can be successfully raised.

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(15) This defence was rejected by the learned High Court Judge and his reasons for so deciding, which we also agreed with is at paragraph 56 of the judgement which is reproduced below:

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(16) Equally lame was the excuse given in the submission before us that the fact that the appellant did not pull out the knife from the sheath when the chase begun from the room shows that the appellant did not have undue advantage and had not acted in a cruel and unusual manner. The fact is he must have pulled out the knife from the sheath later and had used it not just once but multiple times against the deceased. Stating the obvious, the injuries on the deceased was not self inflicted. If indeed the taking of the knife was just to warn the deceased and if it was true that the deceased did not heed the warning, why the need to inflict that many injuries? Ceasing the attack after the deceased had slumped against the surau’s wall which was the position 18 of the deceased when PW21 chanced upon them, again with respect to learned counsel, is not evidence that the appellant did not act in a cruel and unusual manner even though as held by the Supreme Court in Teoh Seng Lian v Public Prosecutor (1986) 1 MLJ 474 “… that it is the subsequent conduct of the parties which puts them upon equal footing in respect of guilt that is material. It should thus be left to the jury to consider whether the appellant had taken an undue advantage or acted in a cruel or unusual manner.” As we had indicated earlier, the cessation of the attack was most likely because PW21 came upon them – not out of sheer remorse or recovery of self control as agreed by the appellant himself in cross-examination at Q&A36 (page 220 of AR Vol 2). Hence, the defence of sudden fight was also rightly rejected by the learned High Court Judge. Self Defence

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(17) The learned High Court Judge had rightly laid down the ingredients to succeed in this defence at paragraph 40 of his judgment and found after analysing the evidence that the defence failed. This was summarised by His Lordship in paragraphs 52 and 53 of the judgment as follows:

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(18) The learned High Court Judge towards the end of the judgment dealt with the credibility of the appellant and found, based on the contradiction in his evidence as reproduced in paragraph 57 of the judgment, that he was not a credible witness. His Lordship also based this finding on the appellant’s answer in cross-examination (as reproduced at page 46 of the AR Vol 1) where the appellant agreed that he went to his room to take the knife because he was angry at not being repaid by the deceased and not because he wanted to scare the deceased as he said in his examination in chief. It is a finding that we have no reason to disturb and we fully agreed with His Lordship’s conclusion in paragraph 57(6) at page 47 of AR Vol 1 which is reproduced below:

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(6) In the absence of any other witnesses to the incident, this Court finds that the Accused is at liberty to give whatever testimony he desires, especially on the favourable material events and facts without any 22 fear of contradictions. Further the Accused’s version of events are not credible especially the part where the Accused contended that the Deceased was chasing and attacking him even though the Accused had deadly weapon in his hand whilst the Deceased was chasing and attacking him even though the Accused was unarmed. One would expect the Deceased to retreat in the light of the Accused having possession of a deadly weapon in his hand instead of continuing to chase and attacking the Accused.

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(19) For all the reasons stated above we had dismissed the appeal and confirmed both the conviction and sentence passed by the learned High Court Judge. Dated: 14 December 2018 Signed RHODZARIAH BINTI BUJANG Judge Court of Appeal Malaysia Putrajaya Note : This copy of the Court’s Grounds of Judgement is subject to editorial revision 23 Parties appearing: For the Appellant : Encik Ranbir Singh Sangha Messrs Ranbir S. Sangha & C0. Advocates, 2nd Floor, Lot 1372 Centre Point Commercial Centre Phase II Jalan Kubu 98000 Miri Sarawak For the Respondent: Tuan Ahmad Sazilee bin Abdul Khairi Jabatan Peguam Negara Putrajaya Cases referred to: