Tony Anak Rambor v Pendakwa Raya (Q-05(M)-4-01/2019)

The appellant was charged with the murder of his co-worker. The charge read as follows: That you, on 27.6.2017, at about 8.00 p.m., in front of a house without number, in the District of Sibu, in the State of Sarawak, did commit murder of one Entermang anak Julin, and thereby committed an offence punishable under section 302 of the Penal Code.”

At the conclusion of the case for the defence, the appellant was convicted and sentenced to death by the learned Judicial Commissioner. He has appealed against this decision.

The facts of the prosecution’s case as summarized by the learned Judicial Commissioner are as follows. The appellant is a construction worker. He and three of his co-workers, i.e. Entermang anak Julin (the deceased), Ricky anak Richard (PW 4) and Michael anak Chabu (PW 12) gathered to drink a local alcoholic beverage known as “Ice Padi” on the morning of 27.6.2017 inside an empty wooden house. The workers took turns buying drinks. Two others workers joined them later but left by the afternoon. The appellant, the deceased, PW 4 and PW 12 continued their marathon drinking session until 8 p.m. when tragedy ensued. PW 4 and PW 12 gave crucial eye-witness evidence about how the deceased met his end at the hand of the appellant.

PW 4 said that around 8 p.m., when the appellant and the deceased returned from the provision shop nearby, deceased said as follows to the appellant: “enti dik nadai duit anang mayuh jakok” (if you don’t have any money, you don’t talk too much).

This statement caused a quarrel between the appellant and deceased. PW 4 and PW 5 were lying down outside the wooden house where they were drinking. PW 4 heard the deceased saying that he wanted to go home. The appellant pushed the deceased to the ground. Then he hit the head and face of the deceased many times with a piece of wood. The deceased did not fight back as he was drunk. After that, the appellant threw the deceased into a nearby drain. PW 4 said that there was water in the drain though it was not raining heavily. He said the deceased was thrown face down into the drain. PW 4 was able to witness the incident because there was light from the street lamps. Furthermore, the distance between the spot where the deceased was bludgeoned and him was about six yards. PW 4 was too afraid of the appellant to offer any assistance to the deceased whom he believed was unconscious after the attack.

The brutal attack on the intoxicated deceased was recounted by PW 4 as follows: Q: Can you recall how many times did Tony hit Akik with a piece of wooden plank? A: I can’t recall how many times but I know many times. Q: Can you describe to the Court the situation when Tony hit Akik with a piece of wooden plank? A: After Tony pushed Akik and Akik fell on the cement floor face down, then Tony turned Akik and hit Akik with the wooden plank. Q: Did you manage to see at which part of Akik’s body took the beating? A: Mostly at the head and face.

After the appellant threw the deceased into the drain, he went home. PW 4 and PW 12 also went to their rooms. PW 4 was afraid to call the police immediately after the incident as he was too drunk and he was afraid of being a suspect in the assault on the deceased. The body of the deceased was discovered by two boys the next afternoon and the police were alerted. PW 4 carried the deceased out of the drain and placed him on the cemented pathway upon being instructed by the police that evening. He thought that the deceased had died by that time.

PW 12 gave similar evidence as PW 4. He also saw the appellant attacking the deceased with a piece of wood. He wanted to help the deceased but PW 4 told him not to get involved. PW 12 said the appellant “kept on hitting the deceased” with the piece of wood. During cross-examination he agreed to a put question that the appellant hit the deceased only once. However, during re-examination, he said that the deceased was hit many times.

The other crucial witnesses were the pathologist (PW 5), the scientific officer (PW 8) and the investigating officer (PW 7). Dr. Ahmad Hafizam bin Hasmi (PW 5) who performed the autopsy on the deceased concluded that the cause of death was intracranial haemorrhages due to multiple blunt force trauma to the head and face. He ruled out drowning as the cause of death as no foreign body were seen in the airways. He took a blood specimen from the deceased which was tested for drugs and 5 alcohol. The scientific officer (PW 8) detected ethyl alcohol in the said blood specimen. The investigating officer testified that small broken chips of wood were found near the deceased. They were sent for forensic analysis. One of the chips had a blood stain that matched the DNA of the deceased.

The learned Judicial Commissioner found PW 4 and PW 12 to be credible witnesses and accepted their evidence. He found that the PW 4 and PW 12 had clear recollection of the incident although they had been drinking. The identity of the appellant and deceased was not an issue as they worked together on the construction site. Moreover, the appellant is the uncle of PW 4. His Lordship also found that their evidence that the appellant landed multiple blows on the head and face of the deceased with a piece of wood was consistent with the evidence of the pathologist. The pathologist said that the cause of death was blunt force trauma due to blows to the head and face using a hard object. This conclusion is also consistent with the discovery of the blood stain of the deceased on one of the broken chips of wood found near the deceased. The parties had also agreed in the Statement of Agreed Facts that the cause of death was blunt force trauma to the head as found by the pathologist.

The learned Judicial Commissioner also found that there was no supervening event that could have caused the death of the deceased between the assault by the appellant at night and the discovery of the body the following afternoon. His Lordship said that the evidence of the scientific officer was not challenged during cross-examination. As for the evidence of the pathologist, he made a finding that it was credible and 6 unshaken. In conclusion he ruled that a prima facie case had been established and called for the defence.

The appellant gave sworn testimony. His defence is essentially one of denial. He said he was drunk on the night in question. He recalled punching one of the men who was present that night once in the chest for pestering him to drink. After that he went home. He has no recollection of anything else. He cannot even remember who he punched once in the chest. He cannot remember if he threw anyone into the drain. His defence in a nutshell is found in the following answer given during the examination in chief: I was working on that day. On that evening, I borrowed RM50 from my tauke. Then, after that I went back to my rented house. Then I bought 1 kilo of chicken and 3 bottles of liquor. Then I went to the house where Ricky and Michael stayed. After prepared the food i.e. the chicken that I bought. Then I want to go home. Then, some of their friends came and brought me to have a drink but I refused because I wanted to go to work the next day. Then someone said, “lokek amat dik” (you are so stingy). Then I scolded him as he was drunk but he kept on pestering me. I punched him. After that I went home.

The appellant added that he was angry when he punched someone but he had no intention of causing hurt to the said person. The attack was not premeditated either.

Citing the cases of D.A. Duncan v Public Prosecutor [1980] 2 MLJ 195 and Public Prosecutor v Nur Hassan Salip Hashim & Anor [1993] 2 CLJ 551, the learned Judicial Commissioner held that the defence which is one of bare denial cannot raise a reasonable doubt in the case for the prosecution. He held that there was no evidence the appellant was intoxicated without his consent which is a pre-condition for the invocation of the defences under section 85 and 86 of the Penal Code. His Lordship also found that the appellant’s conduct that night showed that he had the mental capacity to form the intention to commit murder. He found the appellant guilty and convicted him.

The appellant’s petition of appeal contains ten grounds of appeal. However, in the written submissions, counsel for the appellant referred to only seven of these grounds. Some of these grounds are of a general nature. More focused grounds of appeal were set out in the oral hearing. We find that all the issues in this appeal can be discussed under the following sub-headings. As provocation, intoxication and cause of death were the main grounds argued during the oral hearing, we shall address them first before proceeding to the other grounds.

Counsel for the appellant submitted that the accused was provoked by the deceased and therefore the murder charge should have been reduced to culpable homicide. We shall consider this ground below.

The defence of grave and sudden provocation in a murder case comes in the form of a special exception in the Penal code. Exception 1 to section 300 reads as follows: 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.

If an accused person succeeds in bringing his case within the exception, he may yet be guilty of the offence of culpable homicide not amounting to murder under section 304 of the Penal Code as the defence does not come under Chapter IV which deals with General Exceptions.

The burden of proving the defence of grave and sudden provocation is on the accused and he must discharge it on a balance of probabilities. It was so held by the Privy Council in Jayasena v. The Queen [1970] 1 All ER 219 which considered section 105 of the Evidence Act of Ceylon. It is the equivalent of section 105 of our Evidence Act 1950. Section 105 specifically provides that the burden of proving circumstances that brings a case within the general exceptions of the Penal Code or the special exceptions lies on the accused person. The Privy Council case was followed by our former Federal Court in Ikau Anak Mail v. Public Prosecutor [1973] 2 MLJ 153.

Coming back to the facts of this case, when PW 4 was cross-examined by counsel for the appellant, the defence of sudden and grave provocation was not put to him. Most of the questions that were put to him were about the fact that all of them were intoxicated at the material time. The other questions put to him were for the purpose of eliciting an answer 9 that the appellant did not attack the deceased repeatedly with a piece of wood. When PW 12 gave his evidence, it was put to him that the deceased provoked the appellant and started a fight and he agreed. As for the appellant, in his sworn testimony, he said that someone angered him by saying “don’t talk too much if you don’t have money”. That is the reason he punched that person once.

The learned Judicial Commissioner considered the defence of sudden and grave provocation but he found that there was no evidence to support it. For ease of reference, we reproduce below the relevant passage of His Lordship’s judgment: [18] Learned counsel for the accused alluded to the defence of provocation. In order for the defence to avail the accused, the provocation must have been grave and sudden. The test is objective: “is a reasonable man likely to lose self-control as a result of such provocation?” (see Public Prosecutor v Abdul Razak bin Dalek [2007] 2 MLJ 255, 299; see also R v Duffy [1949] 1 All ER 932). The defence of provocation was not seriously pursued and, rightly so, as there was no evidence or even any suggestion that a reasonable man of the same station in life or similar background would have lost self-control on hearing such words. In any case, the actions of the accused were out of all proportion to the words said to have been uttered.

We are of the view that the learned Judicial Commissioner did not err in finding that the defence of sudden and grave provocation was not proved. In Ikau Anak Mail v. Public Prosecutor (supra), Azmi LP laid down an objective test for the defence in the following passage: 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 accuse had been deprived of the power of self-control, but such acts of 10 provocation would also have deprived a reasonable man of the power of self-control.

This objective test was further elaborated in the oft quoted case of Supreme Court case of Lorensus Tukan v PP [1988] 1 MLJ 251 in the following passage: It is an established principle of law that the test of grave and sudden provocation is whether a reasonable man belonging to the same class of society as the accused, placed in the situation in which the accused was placed, would be provoked as to lose his self-control. No abstract standard of reasonableness can be laid down. What a reasonable man would do under the circumstances depends upon the customs, manners, way of life, traditional values, etc — in short, the cultural, social and emotional background of the society in which the accused belongs. It is for the court to decide in each case having regard to all the relevant circumstances. In order to succeed, the provocation must: (a) be grave and sudden; and (b) have by its gravity and suddenness deprived the accused of the power of self-control.

In the instant case, all that the appellant said in his evidence was that he was angered by the accusation that he was stingy and that he punched the person who said it. He did not even say that the provocation given to him caused him to lose the power of self-control and that was the reason he bludgeoned the said person. It was more a defence of denial than one of acting under sudden and grave provocation. We are of the view that learned Judicial Commissioner correctly found that the appellant gave no evidence at all why a person of his background and station in life should lose the power of self-control upon hearing the words allegedly uttered by the deceased. We would also agree that in all the relevant circumstances of the case, the savage attack on the deceased was completely out of proportion to the alleged provocation that was given.

During oral argument, counsel for the appellant cited sections 85 and 86 of the Penal Code and argued that the defence of intoxication should have been accepted by the trial judge. The learned Judicial Commissioner dismissed the defence of intoxication in the following passage of his judgment which we reproduce below: [25] The accused did not adduce any evidence to show that his intoxication was caused without his consent by the malicious or negligent act of another person, or that he was by reason of intoxication, insane, temporarily or otherwise, at the time the deceased was hit. See sections 85 and 86 of the Penal Code.

Sections 85 of the Penal Code reads as follows: 85 Intoxication when a defence

Save as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal charge.

Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and-

the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission. [27] From the plain words of section 85, it is clear that unlike other defences in Chapter IV (General Exceptions) in the Penal Code, the defence of intoxication is a limited defence. Proof of intoxication alone will not exculpate one of a crime. Under section 85(2), the accused must prove that either the intoxication was caused without his consent by the malicious or negligent act of another person or that he was rendered insane by reason of the intoxication. [28] In the instant case, there is no forensic evidence on the level of intoxication of the appellant, PW 4 and PW 12. They were arrested a day after the incident. However, PW 4 and PW 12 said that all of them including the deceased had been drinking since morning. No questions were put to these witnesses to suggest that the appellant had been forced to drink against his will. In his sworn testimony, the appellant did not say that either. He only said that when someone asked him to drink alcohol and said that he was stingy, he punched that person once and then went home. In the premises, the learned Judicial Commissioner did not err in finding that there was no evidence that the accused had been intoxicated against his will. [29] The second condition in section 85(2) (b) which is in the alternative to section 85(2)(a) is whether there is evidence that the accused was rendered insane by reason of the intoxication. There is completely no evidence, medical or otherwise, to support this condition. The appellant himself never said that his consumption of alcohol rendered him insane. In fact, there is evidence to the contrary from the testimony of the appellant himself. He able to register the insult from someone who called him a stingy man. He could recall that he did not act very aggressively as he threw only one punch. He was able to refuse the drink offered to him. He could find his way home. Thus, there is no medical evidence or evidence from the appellant himself that he had been rendered insane. The burden is on the appellant to prove this defence. [30] We shall now consider the defence of intoxication under section 86(2) which reads as follows:

Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. [31] Even if it can be assumed that the defence of intoxication under this section includes voluntary intoxication as opposed to involuntary intoxication under section 85(2)(a), by virtue of section 105 of the Evidence Act 1950, the burden of proving the defence on the balance of probabilities is on the appellant. As we noted earlier in paragraph [28], the appellant never said how consumption of alcohol affected his judgment to the extent of rendering him insane. In fact, we said in that paragraph that there was evidence to the contrary. For the same reasons, there is no medical evidence or evidence from the appellant that suggests that he was incapable of forming intention, specific or otherwise for the purpose of committing the offence of murder. The appellant did not at any point in his testimony say anything to that effect. [32] In the premises, the finding of the learned Judicial Commissioner that the defence of intoxication under section 85 and 86 was not proved does not warrant interreference. Sudden fight [33] During oral hearing, counsel for the appellant submitted that the appellant had a “fight” with the deceased as they had been drinking. The defence of sudden fight is a special exception defence under section 300 of the Penal Code. Exception 4 to the said section reads as follows: 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. [34] The above exception requires proof of a “sudden fight in the heat of passion”. However, the appellant in his own account of events, only said that he threw a single punch at someone who angered him. He did not refer to any fight between him and the deceased. Although during cross-examination, PW 4 used the word “fight” to loosely describe the incident in question, he said that it was the appellant who hit the deceased repeatedly. PW 4 said as follows during examination in chief: Q: Did Akik fight back when he took the beating from Tony? A: Because Akik was drunk, he did not fight back. [35] Similarly, PW 12 only referred to the repeated beatings that the deceased endured at the hand of the appellant. There was no mention of any retaliation by the appellant. In the premises, the learned Judicial Commissioner did not err when he omitted to consider the defence of sudden fight. There was simply no evidence for the trial judge to explore this defence. Credibility of PW 4 and PW 12 [36] Ricky anak Richard (PW 4) and Michael anak Chabu (PW 12) were crucial eye-witnesses. The learned Judicial Commissioner accepted their evidence as credible and unshaken. Counsel for the appellant submitted that had the learned Judicial Commissioner subjected their evidence to greater scrutiny, he would not have accepted them as credible witnesses. Two reasons were given by counsel for appellant. The first reason is that they are accessories after the fact. The second reason is that lighting was poor at the scene of crime and that both PW 4 and PW 12 were drunk. Whether accessories after the fact? [37] According to counsel for the appellant PW 4 and PW 12 are accessories after the fact. Therefore, they must be treated as accomplices and their evidence required corroboration. In support he cited the case of Francis Antonysamy v PP [2005] 2 CLJ 481. In that case, the witness in question neither committed the crime nor assisted the accused to commit it. However, he actively assisted in concealing the crime. He was present when the accused disposed of a part of the body of the victim. The Federal Court held that he was an accessory after the fact and therefore his evidence must be corroborated. Augustine Paul JCA sitting as Federal Court Judge quoted the following passage from the Law of Evidence by Woodroffe and Amir Ali, 16th Edn, vol 4 at p.3434-5 to explain the role of an accessory after the fact: A principal of the first degree is one who actually commits the crime; a principal of the second degree is a person who is present and assists in the perpetration of the crime; an accessory before the fact is one who counsels, incites, connives at, encourages or procures the commission of a crime; everyone is an accessory after the fact to a felony who, knowing a felony to have been committed by another, receives, comforts or assists him in order to enable him to escape from punishment; or rescues him from arrest for the felony; or having in custody for the felony, intentionally and voluntarily suffers him to escape; or apposes his apprehension. [38] However, in the instant case, both PW 4 and PW 12 had taken no part in concealing the crime of the appellant. The deceased was suddenly attacked and pushed into a drain. PW 4 and PW 12 did not intervene to save the deceased as they were afraid of the appellant. But they took no part in concealing the crime. During cross-examination of PW 4 and PW 12, counsel for the appellant did not establish anything that amounts to active concealment of the crime on the part of these witnesses that would make them an accessory after the fact. Most of the evidence elicited from PW 4 and PW 12 centred around the fact they had been drinking heavily and that they were afraid of the appellant. That is why they walked away after witnessing a horrific crime. [39] As PW 4 and PW 12 took no part in concealing the crime and were not in any other way involved in it, they cannot be considered accessories after the fact unlike the eye-witness in the case of Francis Antonysamy v PP (supra). Thus, their evidence does not require corroboration and stands to be assessed and weighed on its own merit. In the premises, the question of the learned Judicial Commissioner warning himself about acting on uncorroborated evidence does not arise. Poor lighting and state of inebriation [40] Counsel for the appellant also questioned the finding of the High Court that PW 4 and PW 12 were credible witnesses because of the poor lighting in the area in question and because of their alleged advanced state of inebriation at the material time. Counsel for the appellant submitted that apart from being drunk, PW 4 and PW 12 could not have witnessed the incident clearly because the area in question was dark and not well lit. For that reason, counsel for the appellant submitted that the evidence of PW 4 and PW 12 should not have been accepted by the trial judge. We see no merit in this ground of appeal for the following reasons. [41] The identity of the assailant was never in doubt as found by the learned Judicial Commissioner. The appellant was a co-worker of the PW 4 and PW 12. He was also the uncle of PW 4. [42] It is true that at some point during cross-examination, the witnesses agreed that the lighting was poor in the area as the road lights were blinking sometimes. It is also true that PW 4 at one point agreed to the suggestion that was made during cross-examination, that due to drinking alcohol, he could not have seen clearly how the appellant attacked the deceased. Nonetheless, in the main, he was emphatic and consistent in his evidence that the appellant had hit the deceased many times and pushed him to the drain. We had earlier referred to the evidence on this point that was given during examination in chief. Even during cross-examination, it was only on one instance that PW 4 agreed with the counsel for the appellant that he could not have seen the incident clearly because he was drunk. His overall evidence was that that the appellant had hit the deceased repeatedly and thrown him into the drain. This was in fact acknowledged by counsel for the appellant when he summed up PW 4’s evidence during cross-examination and put the following question which received an affirmative answer: Q: So you, Michael and Tony were at the police station the morning after the night where you allegedly said Tony had hit Akik and threw Akik into the drain. A: Yes. [43] At any rate, during re-examination, PW 4 said that despite drinking alcohol, he was able to see the incident in which the appellant attacked the deceased and that he can recollect what happened. [44] In respect of the evidence of PW 12, counsel for the appellant raised a similar line of argument because of an apparent concession extracted during cross-examination. As we pointed out earlier, during examination in chief, PW 12 said that the appellant hit the deceased with a piece of wood many times. However, during cross-examination, he agreed to the suggestion that the deceased was hit only once. Nonetheless, this discrepancy was clarified by PW 12 during re-examination and the learned Judicial Commissioner addressed it in his judgment in the following paragraphs: [11] Although PW-12 had under cross examination testified that the accused hit the deceased once with a piece of wood (NOP, page 185, lines 23-25), he later explained in re-examination that he was scared to tell the story and that the accused had in fact hit the deceased many times (NOP, page 186, lines 19- 30; page 187, line 1). [12] The Court accepts the evidence of both the eye witnesses, PW-4 and PW-12, that the accused had hit the deceased with a piece of wood many times. [13] It is consistent with the post mortem report, exhibit P20, prepared by PW-5, Dr Ahmad Hafizam bin Hasmi. The report states that the cause of death was intracranial hemorrhages due to multiple blunt force trauma to the head and face. [45] We also note that counsel for the appellant did not put any questions to these witnesses to the effect that they had reason to lie and frame the appellant or harboured malice towards him. It may well be that PW 4 and PW 12 acted cowardly in not coming to the rescue of the hapless deceased during or after the attack. But cowardice and drunkenness alone cannot detract from their credibility or reliability as witnesses of truth. [46] For above reasons, we are of the view that the learned Judicial Commissioner did not err in finding PW 4 and PW 12 to be credible witnesses on the ground that they were consistent and unshaken in their testimony. Murder weapon [47] Counsel for the appellant submitted that the learned Judicial Commissioner accepted the evidence of PW 4 and PW 12 that a piece of wood was used as the murder weapon despite of doubts in the evidence of the prosecution. We find no merit in this ground of appeal. Our reasons are as follows. [48] In this case, the prosecution did not establish that any particular plank or piece of wood was the murder weapon. However, it was the prosecution’s case that three broken chips of a piece of wood were found near the body of the deceased and that his blood stain was found on one of the wooden chips. The learned Judicial Commissioner addressed the discovery of the blood stain on one of the wooden chips in the following passage of judgment: [14] In addition, the DNA profile developed from bloodstains indicated on one of the seized wood chips matched the profile of the deceased. See WSPW-10, page 6, the witness statement of Sitti Mariam binti Nunurung, an officer attached to the Serology/Deoxyribonucleic Acid (Serology/DNA) Section of the Forensic Division at the Department of Chemistry in Kuching, Sarawak. [49] Counsel for the appellant criticized the above finding because the learned Judicial Commissioner did not specifically say that the other two wooden chips apart from the one with the blood stain were used to attack the appellant. With respect, we are of the view that counsel for the appellant missed the purpose of the prosecution’s evidence in relation to the three wooden chips. They were tendered to establish that the deceased was attacked with a piece of wood. That is why broken chips of wood were found near the body. Moreover, the blood stain of the deceased was found on one of the said wooden chips. The prosecution’s case that the deceased was attacked by a piece of wood was supported by the direct eye-witness evidence of PW 4 and PW 12. It was also corroborated by the pathologist who said that the blunt force trauma on the head of the deceased was caused by a blunt object such as a stone or piece of wood. [50] In the premises, it would not matter if blood stains or incriminating finger prints were not found on the other wooden chips. As pointed out in the case of Mahadzir bin Yusof v Public Prosecutor [2011] 1 MLJ 297 which was cited by counsel for the appellant himself, the Federal Court held that the production of the murder weapon is not essential in a murder trial. In that case, the baseball bat that was used to attack the victim was thrown into the river and was never recovered. However, there was evidence from the eye-witness that a baseball bat was used to batter the victim. Zainun Ali JCA at the Court of Appeal said as follows: The evidences clearly showed the cause of death was due to a blunt object possibly the wooden baseball bat which was never recovered. However, this does not mean that without the murder weapon, an otherwise solid case will result in acquittal. This would mean that all criminals will get away scot free due to the non-production of the murder weapon. The usage of the wooden baseball bat was never disputed by both the appellants PW9 and PW14. Cause of death [51] The main argument raised by counsel for the appellant in respect of the cause of death is that the deceased could have died of drowning instead of blunt force trauma. The other issue was that the deceased did not die after the attack but was alive when he was pushed into the drain. [52] The learned Judicial Commissioner accepted the opinion evidence of the pathologist that the deceased died of intracranial haemorrhaging due to multiple blunt trauma to head and face. The pathologist specifically ruled out drowning as the cause of death because “there was no foreign body seen in the airways to indicate drowning”. The learned Judicial Commissioner noted that the counsel for the appellant explored this issue during cross-examination. He put to the pathologist that there was “dark colour fluid in the trachea” which had been “aspirated” or in other words went down the lungs. Although the pathologist agreed that he did not send a specimen of the dark coloured liquid for analysis, he said the said liquid was consistent with decomposition fluid. He had recorded that the body was in a state of decomposition. The pathologist also said that the injuries suffered by the deceased would have in the ordinary cause of nature brought about the death of the deceased. [53] Counsel for the appellant failed to challenge the expertise of the pathologist or his conclusion about the cause of death. His suggestion that the deceased died of drowning was solely based on the fact that the latter was pushed into a drain. As against the reliable expert evidence that the blunt force trauma was the cause of death, the defence did not tender rebuttal expert evidence from another pathologist. In the premises, the learned Judicial Commissioner did not err in accepting the evidence of the pathologist who performed the autopsy. Therefore, we find no merit in the submission that the cause of death was drowning. In any event, even if the cause of death was drowning, the unchallenged evidence of the prosecution was that it was the appellant who bludgeoned the deceased and threw him into the drain. Thus, a finding that drowning was the cause of death would not break the chain of causation. [54] In relation to the cause of death issue, counsel for the appellant also raised the issue that the deceased was alive when he was thrown into the drain. He referred to the evidence of PW 4 who hesitantly ventured an opinion during cross-examination that the deceased was alive when he was pushed into the drain. That evidence is a follows: Q: So, Akik was still alive when he was allegedly thrown into the drain by Tony when you and Michael left him there in the drain? A: I am not sure but from my opinion, Akik is in some kind of unconscious. Q: Is he still alive or not at that time? A: He was still conscious at that time. (emphasis ours) [55] In our view, in this answers, PW 4 was clearly giving opinion evidence based on speculation. No reasons were given for this opinion. By his own admission, PW 4 was eight metres away during the attack on the deceased. PW 4 did not say that he bothered to check for any signs of life after the attack or after the deceased was pushed into the drain. This is expected as he admitted that he was afraid to do anything to help the deceased. The post mortem report does not record the time of death as the body was in state of decomposition. However, in this case, the time of death cannot be relevant in relation to the element of causation. The pathologist noted that the blows suffered by the deceased on the head would have caused death in the ordinary course of nature. The High Court also found that there was no evidence of a supervening event that caused the death of the deceased. His Lordship was correctly held that the death of the deceased cannot be attributed to the failure by PW 4 and PW 12 to intervene. Thus, there is no merit in the ground that the deceased was still alive when he was pushed into the drain and that his death cannot be attributed to the act of the appellant. Conclusion [56] After having considered the issues raised in the oral hearing and the rest of the issues mentioned in the petition of appeal and the written submission, we find that none of them have any merit. We find the conviction to be safe and that appellate interference is not warranted. The conviction and sentence imposed by the High Court is affirmed. The appeal is dismissed. SGD (RAVINTHRAN PARAMAGURU) Judge Court of Appeal Malaysia Putrajaya Dated: 12th October 2022 Parties Appearing: For The Appellant: Mohamed Ossman bin Ibrahim Fadzillah bt Mohamad Ossman Nur Atiqah binti Kulah [Messrs Osman Ibrahim Co. Advocates) For The Respondent: Mohd Mukhzany Fariz bin Mohd Mokhtar Deputy Public Prosecutor Attorney General’s Chambers