Steven Lagang v Pendakwa Raya (Q-05(M)-501-10/2019)

The appellant was charged with murdering his own wife. The charge read as follows: That you, Steven Lagang on 11th February 2018, around 7.00 pm to 8 pm, at room No. 11, Block A, Uma Balui Ukap, Sg Asap, Belaga, in the State of Sarawak, have committed murder by causing the death of one Helen Ading (NRIC No. 930111-13-5612), and thereby you have committed an offence under s. 302 of the Penal Code.

At the conclusion of the trial, he was convicted and sentenced to death by the High Court for the murder of his 25-year-old wife and hence this appeal.

The evidence tendered by prosecution witnesses was summarised by the learned Judicial Commissioner as follows. The unfortunate victim of the crime in question lived in a longhouse in Belaga District in Sarawak with the appellant who is her husband and their two young children. Each of the individual dwelling quarters in the longhouse are known as “pintu” or “door”. The principal witness for the prosecution was one Layang Jok (PW 7). She is the aunt of the deceased. The deceased came alone to her house on the morning of 11.2.2018. After having breakfast, the deceased left and returned at about 5 p.m. One of their sons who was in primary school came to Layang Jok’s house and told the deceased that the appellant wanted her to return home. The deceased then left Layang Jok’s house. As for Layang Jok, she went to the house of her sister, Adelina Jok. It was only two houses away from the deceased’s house.

From her sister’s house, Layang Jok could hear a heated argument taking place in the home of the deceased and the appellant. She heard the appellant admonishing the deceased for going to her house. She also heard the deceased protesting that she has a right to visit her aunt. The appellant then threatened to kill the deceased if she persisted. The deceased then told the appellant to go ahead with his threat to kill her. The evidence of Layang Jok in her witness statement is as follows in the original language: Pada masa itu saya mendengar Steven bercakap dalam Bahasa Kayan bermaksud “makin saya tidak suruh kamu pergi ke sana (rumah saya) tetapi kamu pergi juga”. “Jangan kamu berdegil, nanti saya bunuh kamu”. Helen pun menjawab dalam Bahasa Kayan yang bermaksud, “macam mana saya tidak pergi ke sana sebab rumah itu rumah makcik saya”. Steven terus berkata, “jangan kamu macam itu nanti saya bunuh kamu”. Helen pun menjawab, “bunuh bunuhlah”. Selepas itu saya mendengar Helen meminta tolong iaitu hanya sekali itu sahaja.

Layang Jok heard the deceased pleading for help soon after the above-mentioned heated argument with her husband. She then managed to witness the brutal attack on the deceased through the one-foot gap in the wall of the latter’s quarters. Layang Jok saw the appellant kneeling on the back of her deceased while holding a parang in one hand and pulling her hair using the other hand. The next thing Layang Jok saw was the gruesome act of the appellant slashing the neck of the deceased. She was acquainted with the appellant as he was from the same village and was married to the deceased. She was too shocked to react by calling for 4 help. However, a short while later she saw a neighbour by the name of Pelik Balan (PW 3) standing outside the quarters of the deceased.

Pelik Balan was the other crucial witness for the prosecution. His house is next to that of the deceased. He and his wife returned to the longhouse at 9.10 p.m. Like Layang Jok, he was able to peer through the gap in the wall of the deceased’s house. He saw the deceased lying in a pool of blood. He immediately reported the matter to the police at Kg Asap. Inspector Kandes (PW11) immediately rushed to the said longhouse in question. When he entered the house of the deceased, he saw her lying motionless in a pool of blood. Inspector Kandes arrested the appellant who was present in the house. He noted that the appellant had sustained a superficial wound on his hand. A parang found at the scene was seized. The blood stains found on it were later sent for DNA analysis. The chemist determined that the said blood stains were that of the deceased. The blood stains of the appellant were not found on the parang. Similarly, the chemist determined that some blood stains found on the clothes of the appellant belonged to the deceased.

The pathologist (Dr. Norliza binti Ibrahim, PW9) conducted the post mortem examination on the body of the deceased. She determined the cause of death to be the slash wound on the neck due to sharp force trauma. The neck injury was a horrific gaping wound of 4 cm wide that almost ran from ear to ear. The wound was 17 cm long and 7 cm deep. The blood and urine samples of the deceased were taken for forensic analysis. Alcohol was detected in the blood of the deceased but not common drugs. The forensic analysis of the blood and urine samples of the appellant did not reveal the presence of alcohol or common drugs.

At the end of the prosecution’s case, the learned Judicial Commissioner upon a maximum evaluation of the evidence found that a prima facie case had been proved. His Lordship accepted the evidence of the pathologist that the gaping wound on the neck of the deceased would have caused death in the ordinary course of nature. In respect of the role of the appellant in the death of the deceased, the learned Judicial Commissioner found the evidence of Layang Jok to be credible. After Layang Jok heard the heated argument between the deceased and the appellant, she saw the appellant slashing the deceased’s neck with a parang. The learned Judicial Commissioner found Layang Jok to be a credible witness as she was consistent in her testimony and was not shaken in cross-examination as to what she saw. She was only challenged in respect of her ability to witness the event from her sister’s house. But she maintained her stand that she could see the appellant slashing the deceased because the distance between her and the house of the deceased was only about eight metres. Furthermore, the lighting in the kitchen of the deceased where the incident occurred was good. She also explained that although the house of the deceased was two houses away, the intervening house had no wall on one side and therefore she could peer through the one-foot gap in the wall of the kitchen of the deceased. In addition, the learned Judicial Commissioner also considered the forensic evidence. The blood of the deceased was found on the clothes of the appellant and on the parang.

As the credible evidence of Layang Jok was that a parang had been used to slash the neck of the deceased, the learned Judicial Commissioner held that the act of the appellant fell under all the limbs of section 300 of the Penal Code.

The appellant elected to give sworn evidence. He was the only witness for the defence. His testimony was brief. He said that on the day in question he returned home after a drinking session and asked the deceased whether she had transferred his phone numbers from his old handphone to his new handphone. She answered in the affirmative and left to go to her aunt’s house. He wanted to use his WhatsApp application on his handphone. When he realized that his contacts were not transferred to his new phone, he asked their son to call his wife back to the house. She did not return and he personally went to her aunt’s place to bring her back. However, she did not address his concern about the transfer of contacts to his new handphone. Instead, she walked towards the kitchen and pulled a parang from its sheath. He managed to take away the parang from her but in the process, there was a struggle and the deceased injured herself. The appellant was also injured. After that, both of them lied down on the floor in a pool of blood. Thus, his defence was that what happened to the deceased was the result of an accident and that he had no intention to injure or kill her.

The learned Judicial Commissioner found that the appellant failed to raise a reasonable doubt on the case for the prosecution for the following reasons. His Lordship said that the neck injury suffered by the deceased was a deep, long and gaping wound. According to the 7 pathologist, it was sufficient in the ordinary course of nature to cause death. The deceased also suffered defensive wounds. The learned Judicial Commissioner did not accept the claim of the appellant that the injury was caused accidentally when the appellant attempted to take away the parang from the deceased. Furthermore, this defence was not put to Layang Jok who told the court that she saw the appellant slashing the deceased. The learned Judicial Commissioner rejected the defence of accident.

The appellant did not say anything in his evidence about defending himself during the incident. His sole defence in his sworn testimony was that the deceased was injured accidentally when he took the parang away from her possession. However, his counsel also submitted that the appellant had defended himself. The learned Judicial Commissioner rejected self-defence or private defence as the appellant could have left the scene instead of inflicting a mortal wound with great force on the neck of his wife.

Although the defence of provocation and intoxication were not raised by the appellant, the learned Judicial Commissioner also considered whether it applied on the facts of this case. His Lordship said that self-induced intoxication is not a defence under section 85(a) of the Penal Code. As for provocation, he said that there was no evidence that the appellant was provoked by his wife who dared him with the words “bunuh bunuhlah”. On the evidence, he found that the appellant had already threatened to kill the deceased by that time. His Lordship also considered the evidence of Layang Jok who said that the appellant kneeled on the deceased’s back first and pulling her hair before slashing 8 her neck. The learned Judicial Commissioner said that it was not an act that was done on the spur of the moment due to provocation.

For the above reasons, the learned Judicial Commissioner convicted the appellant of the offence of murder and sentenced him to death.

Before us, counsel for the appellant canvassed the defence of accident. In addition, he raised defences that were not raised by the appellant in his evidence. We shall consider below all the grounds argued by counsel for the appellant and the grounds raised in the petition of appeal as well.

This was the only defence that was raised by the appellant in his testimony in the High Court. The defence of accident is a general exception defence that is provided in section 80 of the Penal Code. It reads as follows:

Accident in the doing of a lawful act Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge, in the doing of a lawful act in a lawful manner, by lawful means, and with proper care and caution. IIlustration A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence. [17] The learned Judicial Commissioner had regard to the above mentioned provision when considering the defence of accident. The appellant told the court that the deceased grabbed a parang from the kitchen and walked towards him during the altercation between them. He attempted to snatch the parang from her. She was injured in the course of his action to disarm her and that is how she died. The appellant said he was also injured. The learned Judicial Commissioner found the defence of accident to be wholly improbable and he gave his reasons in the following paragraph which for ease of reference we reproduce below: [56] …… If it was an accident as claimed, the deceased would not have suffered a deep gaping incision on the neck measuring 17 x 7 cm… I also disbelieve the accused claim that he tried to grab the parang (P16(b)) from the deceased when the deceased walk towards him. In fact, what is more probable prior to the slashing of the deceased was as described by PW7 in her unchallenged evidence that the accused knelt on the deceased back, pull her hair and slashed the deceased neck with the parang P16(b). In any case, it was never put to PW7 or any of the prosecution witnesses that the death of the accused was as a result of an accident neither was it put to PW7 that the accused tried to grab the parang from her when she walked towards him. His defence that the death of the deceased was an accident is therefore an afterthought. [18] The appellant only suffered superficial laceration wounds in this case. On the other hand, from the forensic evidence of the pathologist and photographs tendered by the investigating officer, it is plain that the injury suffered by the deceased had nearly severed her neck. The pathologist opined that the sharp force trauma on the neck was the injury that caused death. She emphasised that the severity of the wound was such that it was sufficient in the ordinary course to cause death. She said that the other injuries found on the deceased were defensive injuries that did not cause death. The pathologist said that a parang could have caused the neck injury in question. [19] We note that the defence that the deceased could have suffered the neck injury in question during the appellant’s attempt to disarm her was never put to the pathologist by counsel for the appellant. We regret that we have to repeat some gory details but it is necessary in view of the defence of accident relied on by the appellant. The injury on the front of the neck of the deceased which was the cause of death was severe; it is a long, deep and gaping wound that was caused by a sharp instrument. The description of it by the pathologist and the thousand words painted by the pictures tendered in evidence bear testimony to this fact. Thus, expert opinion is not necessary to come to the conclusion that the injury could not have been accidental. In fact, we can safely say that by no stretch of the imagination can the neck injury in question be attributed to even the most robust and vigorous attempt to disarm a person of a parang. Nothing short of a deliberate forceful slash on the neck of a victim with a parang would have caused such an appalling wound. The neck injury is actually consistent with the evidence of Layang Jok as found by the learned Judicial Commissioner. It will be recalled Layang Jok said that she saw the appellant sitting on the back of the deceased who was lying down and that he pulled her hair backwards before slashing her neck with a parang. Thus, we agree with the learned Judicial Commissioner that the defence of accident is improbable and an afterthought. [20] The learned Judicial Commissioner did not give weight to the defence of accident for another reason. Layang Jok was the star witness for the prosecution. Her evidence directly contradicted the defence of accident. She told the court she saw the appellant slashing the neck of the deceased deliberately while sitting on her back. Thus, the defence that the neck injury in question was sustained by the deceased when the appellant attempted to wrest the parang away from her should have been put to her during cross-examination. In the well-known case of PP v Lin Lian Chen [1992] 2 MLJ 561, Edgar Joseph Jr SCJ said that a defence that is sprung for the first time when the accused gives his evidence runs the risk of being branded as a recent invention. This principle was repeated in the latter Federal Court case of Alcontra a/l Ambrose Anthony v PP [1996] 1 MLJ 209. However, in this latter case, the same eminent judge made it clear that the failure of the accused to put his defence at an earlier stage only goes to the weight to be attached to the said defence and does not relieve the prosecution from its duty to prove this case. Thus, the early non-disclosure of the defence cannot be the basis to infer guilt. [21] In the instant case, the prosecution did not rely on the non-disclosure of the defence of accident to prove its case. The prosecution relied on the direct evidence of Layang Jok and the circumstantial evidence. Neither did the learned Judicial Commissioner infer the guilt of the appellant from such non-disclosure. As stated in the passage we quoted earlier, the said non-disclosure was merely one of the grounds for not giving weight to the defence of accident. Therefore, we are of the view that the learned Judicial Commissioner did not err in not giving weight to the defence of accident. Credibility of Layang Jok [22] Counsel for the appellant questioned the credibility Layang Jok in the High Court and before us. However, Layang Jok was never challenged during cross-examination that she was not telling the truth about what she saw or that she deliberately lied because the victim is her niece. As noted by the learned Judicial Commissioner she was only questioned by counsel for the appellant about her ability to see the attack on the deceased from her sister’s house. Layang Jok said that the distance from where she stood and the kitchen of the deceased where the incident occurred was only 8 metres or 24 feet. She could see clearly because the lighting was good and there a one foot gap in the wall of the kitchen. Although, she was two houses away, the intervening house had no wall, and therefore she could see unobstructed what happened in the kitchen of the deceased because of the gap in the wall. For ease of reference, we reproduce below the only challenge to her testimony during cross-examination which is in respect of her ability to see the incident: D/C : You stated in your Witness Statement which is “WS-PW7”, under paragraph 3, at the last line: “Selepas itu, saya ada mendengar Helen meminta tolong iaitu hanya sekali itu sahaja” : When you heard those words, were you at the same time watching the incident where you allegedly saw the accused slashing the neck of the deceased? : Ya. : How far were you from the accused and the deceased when the alleged slashing occurred? : 2 buah pintu. Court : How far is 2 buah pintu? PW7 : Dari kandang saksi hingga ke pintu belakang Mahkamah Tinggi. : What is standing between you and the accused and also the deceased? : Dinding plywood. : You can see through this “dinding plywood” clearly? : Ya, saya nampak dengan jelas melalui celah dinding. : How big is the celah dinding? : Agak besar (1 kaki). : If you were 2 doors away, am I correct to say that there are at least 2 walls (dinding plywood) that stands between you and the accused who was with the deceased? : Tidak, satu sahaja. : Then how come it was 2 doors away? : Sebab 2 pintu itu tidak berdinding, jadi sebelah Helen dan Steven hanya ada satu dinding sahaja. : You mean that 2 doors are two doors but not 2 rooms, right? : Ya. : So you can clearly see the alleged slashing? : Jelas : Did you notice that the accused was also injured on his neck when he allegedly slashed the deceased: : Tidak perasan. [23] The learned Judicial Commissioner found Layang Jok to be a credible witness. After reviewing the cold print evidence of the brief cross-examination, we cannot say that His Lordship’s assessment of the witness justifies interference. Layang Jok’s was unshaken and consistent during cross-examination. She gave plausible answers to all the questions put to her. No evidence was put to her during cross-examination to challenge to her credibility as a witness of truth. There was no evidence from the appellant either that Layang Jok bore ill will towards him or that she has some reason to frame him for the murder of his wife. As Layang Jok is a close relative of the deceased, she is also a victim of the crime in question and the principle that victims of crime are not necessarily interested witnesses should apply. In any event, it was never put to her that she deliberately lied because the deceased was her niece. For the above reasons, the ground of appeal that Layang Jok could not have witnessed the incident or could have lied is without merit. [24] In relation to the evidence of Layang Jok, counsel for the appellant submitted that the prosecution did not produce the photograph of the one-foot gap in the wall of the kitchen of the deceased. We do not think that this is fatal to the prosecution’s case. There is no basis to infer that there was suppression of photographs taken at the scene of the crime. In any event, Layang Jok gave credible evidence about the gap in the wall and she was not successfully challenged. [25] Counsel for the appellant also challenged the prosecution’s reliance on the evidence of Layang Jok because her sister, Adelina was not called to testify. Layang Jok told the court that she witnessed the incident from Adelina’s house that was two “doors” away from the house of the deceased. However, she emphatically said that Adelina did not see the incident. Furthermore, during the brief cross-examination of the investigating officer, counsel for the appellant did not even ask him whether any statement was recorded from Adelina. Thus, if no statement was recorded from her, there is no reason to assume that there was suppression of unfavourable evidence by the prosecution. Therefore, we see no gap in the narrative of the evidence of the prosecution or any reason to invoke adverse inference. Sudden fight [26] “Sudden fight” is a “special exception” defence to a murder charge. Evidence of a sudden fight will negative the offence of murder with the result that it would only amount to culpable homicide. Exception 4 of Section 300 of the Penal Code (Revised 1997) which defines the offence of murder reads as follows: Exception 4 - Culpable homicide is not murder if it is committed without premeditation 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. Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault. [27] The appellant in his evidence did not say he and the deceased were involved in a sudden fight in the heat of passion. He did not say that the deceased attacked him either. He only said that she took a parang and walked towards him. He said that he successfully disarmed her and that both of them were injured in the process. His evidence in examination in chief in respect of the struggle with the deceased is as follows: I followed my wife to the kitchen. Then my wife pulled the parang from the sheath which was hanging near to the toilet door and walked towards me. I tried to take the parang from her and as we were struggling and I was injured on the neck. I still managed to get the parang from my wife and she still pulling on her hand and that is the time she got injured. Then we both fell down and lay on the floor. [28] Thus, there was no explicit mention of a fight with the deceased. Only during the final submissions before the High Court, his counsel said that the deceased took the parang and tried to attack him. [29] Counsel for the appellant submitted before us that there was a fight and that his client was injured on his neck as well. But as we said earlier, it was a superficial wound. The doctor who examined him was not called but the medical report was tendered in evidence. The injury is described as a superficial laceration wound. According to the medical report, the appellant was discharged from the hospital the following day in good condition. [30] Even if it can be assumed that there was a fight between the appellant and the deceased, we are of the view that Exception 4 to section 300 cannot apply to this case. Exception 4 does not give carte blanche to a combatant in a physical fight to gratuitously maim or kill his adversary. It provides that the defence cannot be availed of if the offender had taken “undue advantage or acted in a cruel or unusual manner”. From the evidence of the appellant himself, there was only one weapon, i.e. the parang in question that was the object of the tussle between him and the deceased. He did not say that any other weapon was seized by the deceased during the scuffle. Thus, once the appellant managed to wrest the parang away from the deceased, there would have been no reason to slash her on the neck with such great force. The immediate threat had ceased. He could have walked away. Thus, it is plain that Exception 4 cannot apply in this case even if there had been a fight between the parties. However, as we said earlier, the evidence of Layang Jok which was found to be credible by the learned Judicial Commissioner is that there was no fight in the first place. For the above reasons, there is no merit in the argument that Exception 4 applies. Consequently, the suggestion of counsel for the appellant that a finding of culpable homicide not amounting to murder should have been made is without basis. Self defence [31] Counsel for the appellant also submitted that his client acted in self-defence as there was a fight and he was also injured. Self-defence which is referred to as private defence is provided in 96 of the Penal Code. If the defence succeeds, it is a complete answer to a murder charge. However, limits have been placed in the subsequent sections to prevent its abuse. Section 99(4) prohibits infliction of unnecessary harm when protecting oneself. It reads as follows:

The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. [32] The learned Judicial Commissioner dealt with the defence of self-defence in the following passage: [57] The defence of private/self defence is also not applicable in this case. For private defence to succeed, the accused must be able to cast a reasonable doubt that his slashing of the deceased neck was done without intention of doing more harm than is necessary. Even if the accused was in danger of being harmed when the deceased walked towards him with the parang as claimed, he had every opportunity to flee. There was indeed no justification for the accused to slash the deceased with such force as is necessary thereby causing a deep gaping wound on the deceased neck. [33] We agree with the above reasoning. In the instant case, as the learned Judicial Commissioner noted, the appellant suffered only superficial wounds. His blood was not found on the parang. The DNA analysis of the blood stains revealed that the same belonged to the deceased only. The learned Judicial Commissioner made a finding that the injury was self-inflicted. The investigating officer’s evidence that the appellant was injured is hearsay evidence as it was based on the statement of the appellant. Even if the injury was not self-inflicted, in our opinion, the learned Judicial Commissioner correctly found that the appellant was not defending himself. As we said in the foregoing passages, only one weapon was involved in the struggle. It is the evidence of the appellant that he managed to grab it from the deceased. Assuming that is true, he could have simply walked away. The threat would have ceased the moment he disarmed her. However, he chose to inflict a horrific injury on her neck with the lethal weapon. Thus, there is no merit in the ground of appeal that the appellant acted in self-defence. [34] It must be mentioned that apart from the defence of private defence in section 96 discussed above, the successful invocation of private defence as a limited defence under Exception 2 of section 300 of the Penal Code can reduce a murder charge to the lesser culpable homicide not amounting to murder. Exception 2 reads as follows: Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law, and causes the death of the person against whom he is exercising such right of defence, without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. (emphasis supplied) [35] However, as stated in the italicised words, an essential precondition for the invocation of this provision is that there must be no intention to cause more harm than necessary for the defence. In the instant case, as the learned Judicial Commissioner noted, the attack by the appellant after he snatched the parang and subdued the deceased by sitting on her back was completely unnecessary. From the nature of the injury inflicted, it can be easily inferred that there was intention to cause more harm than necessary. For this reason, the appellant cannot avail himself of the private defence in Exception 2 of section 300 of the Penal Code either. Whether provocation? [36] Counsel for the appellant submitted that the deceased was intoxicated and provoked the appellant by saying “bunuh bunuhlah”. The analysis of her blood sample revealed presence of alcohol. Therefore, it was argued that the First Exception under section 300 of the Penal Code applied to this case. This defence was not raised in the High Court but nonetheless the learned Judicial Commissioner considered it and found that there was no evidence to support it. The First Exception defence reads as follows: Exception 1--Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident. [37] Mere provocation is not enough for one to avail this defence. The provocation must be “grave and sudden” and it must deprive the assailant of the “power of self-control”. We repeat what the learned Judicial Commissioner noted in this case. The appellant did not even say that he was provoked in his sworn evidence. Even if that fact can be inferred, there is no circumstantial evidence to infer that he had lost the power of self-control. The evidence of Layang Jok is to the contrary. The appellant had taken time to subdue the deceased by sitting on her back, pulling her hair backwards and slashing her neck. For that reason, we agree with the assessment of the evidence by the learned Judicial Commissioner on this defence which is as follows: [61] Similarly, the defence of provocation too if relied upon would be out of the question as there was no evidence from him to the effect that he was angry with the deceased when she said “bunuh bunuh lah”. In fact, his own conduct before slashing the deceased on the neck in first kneeling on her back and pulling her hair negated the possibility that he was provoked. If provoked, the act would have been instant. Thus, when he made the threat to kill her not once but twice, at that point of time, there was already formed in his mind the intention to kill her. It was a pre meditated act. [38] There is another good reason why the defence of provocation cannot succeed even it was properly raised. The First Proviso to this defence reads as follows: The above exception is subject to the following provisos:

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

– (c) ….. [39] Counsel for the appellant said that the words “bunuh bunuhlah” provoked the appellant. For the deceased to say such words, a threat to her life must have been made by the appellant in the first place. It bears repetition that the appellant and the deceased are husband and wife. We take judicial notice that the appellant as the husband is morally duty bound to protect and look after his wife. In the premises, by threatening to kill her during their argument, it was the appellant who sought the provocation from his wife. Therefore, he should not be permitted to claim that he was provoked by the response of his wife. Intoxication [40] Intoxication is yet another defence that was only mentioned in the submissions of counsel for the appellant without any elaboration. Again, there was no evidence to support it. The appellant did say that he returned home after a drinking session. But examination of the blood and urine sample of the appellant did not reveal presence of alcohol. The appellant himself did not say that he was so intoxicated that he did not know what he was doing or that he was rendered temporarily insane which are preconditions for the invocation of the defence of intoxication under section 85 of the Penal Code. Neither did he say that intoxication rendered him incapable of forming intention under section 86 of the Penal Code. Therefore, the learned Judicial Commissioner correctly dismissed the defence of intoxication. Premeditation [41] In the written submission, counsel for the appellant submitted at length that there was no evidence of premeditation on the part of the appellant to commit the crime in question. He also said that there was no evidence of intention. In our view, there is no merit in this submission. Firstly, it is trite law that the element of premeditation is not necessary to prove a murder charge. The four disjunctive limbs of section 300 of the Penal Code that defines the offence of murder do not mention “premeditation” at all. In fact, even intention to cause death is only mentioned in limb (a). Limbs (b) and (c) mention intention to cause bodily injury only and not death. Limb (d) does not mention intention at all but mentions only knowledge. [42] The element of “premeditation” becomes relevant in a murder trial only if an accused person seeks to rely on the partial defences provided in Exception 2 (exceeding the right to private defence) and Exception 4 (sudden fight in the heat of passion) in order to avail the lesser charge of culpable homicide not amounting to murder. In all the eminent authorities cited by counsel for the appellant, i.e. Mohamed Kunjo v PP [1978] 1 MLJ 51 (Privy Council appeal from Malaysia), Kirpal Singh v The State AIR 1951 Punjab 137 and Budhwa v The State of Madhya Pradesh AIR 1954 SC 652, the discussion on “premeditation” was in relation to the special exception defence of sudden fight. None of these authorities lay down the proposition that the element of premeditation is an essential ingredient that must be proven by the prosecution to sustain a murder charge. [43] Contrary to argument of counsel for the appellant, in the Indian Supreme Court case of Virsa Singh v State of Punjab AIR 1958 SC 465 which is cited in our courts frequently, it was made clear that a conviction for murder can be sustained even in the absence of premeditation. The relevant passage is as follows: Where a man stabs B another in a vital part, he must be held to have intended to cause death, and if death ensures either directly from the wound or in consequence of the wound creating conditions which give occasion to the appearance of a fatal disease, the person inflicting the wound is guilty of murder. Absence of premeditation will not reduce the crime of murder to culpable homicide not amounting to murder... (emphasis ours) [44] As for intention, it is almost always a matter of inference from surrounding circumstances for no one knows what is going on in the mind of another. In the oft quoted case of Tham Kai Yau & Ors v PP [1977] 1 MLJ 174, the former Federal Court said as follows: It cannot be disputed that intention is a matter of inference. The deliberate use by some men of dangerous weapons at another leads to the irresistible inference that their intention is to cause death. [45] In the instant case, from the serious wound on the neck of the victim and the sharp instrument that was used to inflict it with great force, the inference that there was intention to cause death is irresistible. Similarly, the requisite element of knowledge in limbs (b) and (d) can be inferred in this case for the same reason. Therefore, the finding of the High Court that the act of the appellant in killing the deceased comes within all the four limbs of section 300 of the Penal Code cannot be criticised. Conclusion [46] In the instant case, the direct evidence of Layang Jok was that the appellant deliberately killed his wife in cold blood. The learned Judicial Commissioner found the evidence to be credible. For reasons given earlier, interference with this finding is not warranted on the facts of this case. The learned Judicial Commissioner also dismissed the defence of accident in view of the evidence of Layang Jok and the nature of the injury that caused the death of the deceased. His Lordship took the trouble to consider whether there was merit in the other defences that were not raised in the evidence of the appellant, i.e. self-defence, sudden fight and provocation. He found that there was no evidence to support the said defences. The burden is on the appellant to prove the defences on a balance of probabilities (see Jayasena v. The Queen [1970] 1 All ER 219). Before us, the same defences and some new issues were raised. After considering all the issues raised by counsel for the appellant, we find the conviction to be safe. We accordingly affirm the conviction on the charge of murder and the sentence passed by the High Court. The appeal is dismissed. SGD (RAVINTHRAN PARAMAGURU) Judge Court of Appeal Malaysia Putrajaya Dated: 3rd July 2023 Parties Appearing: For The Appellant: Harold Emparak anak Kerebo [Messrs Gapor & Company Advocates]