(iv) the assailant had not taken undue advantage or acted in a cruel manner. [14] It is also important to not forget that an accused person desirous of taking advantage of this defence of sudden fight bears the onus or burden of proving that defence within the ambit of the exceptions provided for under section 300 of the Penal Code, on the standard of proof, which is one that is on the balance of probabilities. First, it would be apt to refer to section 105 of the Evidence Act 1950, which states: "105. Burden of proving that case of accused comes within exceptions. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances." [15] As to the standard of proof that is incumbent on an accused to discharge in order to avail himself of any of the general exceptions, including Exception 4 under section 300 of the Penal Code, the law is settled. We needed only to refer to the decision of this court in the case of Rikky Purba v Public Prosecutor [2014] 3 CLJ 607; [2014] MLJU 72, where the court, having reviewed the authorities, had held, inter alia, as follows: "It is an established principle of criminal jurisprudence that the defence is not required to prove its case with the same rigour as the prosecution and the defence is only required to prove its case on the balance of probabilities to entitle him to rely on any general exceptions of the PC (see section 105 of the Evidence Act)." [Italics by us for emphasis] [16] But having said that, that standard required of an accused to discharge on the balance of probabilities is higher than just to raise a reasonable doubt on the prosecution's case. To establish a case on a balance of probabilities is similar to a party in a civil case having to convince the court to enter judgement in his favour. In the celebrated case of Miller v Minister of Pensions [1947] 2 All ER 372, Denning J (as he then was) said: "If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not." [17] That would invariably require that party involved having to lead or adduce affirmative evidence to prove his case, as the court shall presume the absence of those circumstances, to reach a level of proof of at least 51% probability against his adverse party. We would cite the English case of Re B [2008] UKHL 35, where Lord Hoffman had used a mathematical analogy to illustrate what needed to be proven by a party desirous of having judgement entered in his favour, like so: "If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened." The accused's Defence [18] Essentially, the defence of the accused in this case had been that he had come to the deceased's house, to collect some money from the deceased who was his brother. The money was apparently his pay for helping his brother perform building works. His brother told him that he had not been paid for his work and as such he had no money to pay the accused his wages. The accused person was adamant and according to him, a sum of RM30.00 from his brother would suffice for the moment. A quarrel ensued and according to the accused, his brother punched his face. He resisted retaliating and his brother took a parang and slashed at him but missed. According to him, his brother's brother-in-law who was there did not try to stop the fracas. That made the accused think that they wanted him dead. The accused then took a kitchen knife and with that knife, he stabbed his brother in the chest. According to him, his brother fell to the floor and he then heard his brother say out loud to the effect that if he, meaning the brother, were to die, the accused should be caught and be killed. The accused then ran out of the house and on the way while fleeing the brother's house, he said he threw away the knife that he had used to stab his brother in the chest into the swamp area nearby. He was subsequently apprehended by people in the neighbourhood who heard cries/shouts for help by his brother's wife and daughter, who had testified that they witnessed the quarrel between the brothers that had later resulted in the death of the deceased. Our deliberations and findings. [19] At this juncture, it is worth noting that the version of events narrated by the accused person differed from what was narrated by PW1, who was the wife of the deceased as to what had happened in the deceased's house on that fateful evening. In her evidence, PW1 testified that the accused had stabbed the deceased twice in the chest, with a knife which he had brought along with him that he had placed at his hip. She said she had never seen that knife before that day. She never mentioned in her testimony that her husband had slashed a parang at the accused person. It was in her evidence as well that the accused had slashed the knife at her along the catwalk after she went out of the house shouting for help. [20] During the cross-examination of PW1 by the DC, it was not put to her that the deceased had slashed at the accused person with a parang. Neither was the Investigating Officer, Inspector Jamal bin Tampak (PW9) Neither was the Investigating Officer, Inspector Jamal bin Tampak (PW9) cross-examined on the matter of the parang. These were matters that did not escape the notice of the learned trial Judge. In the course of trying to resolve which of the two versions was more probable, the learned trial Judge had, after assessing the testimonies of the witnesses and the accused person, made a finding of fact that PW1 was more credible than the accused person. Having considered the evidence, while noting that there were some minor discrepancies in their evidence before him, the learned trial Judge had made the following finding of fact at paragraph 17 of his Grounds of Judgement, like so: "I have no doubt that both PW1 and PW2 are crediblewitnesses." [21] The learned trial Judge also concluded that the version of the accused person smacked of an afterthought. He had so concluded as such at paragraph 32 of his Grounds of Judgment, like so: [32] In this respect, there are two different version [sic] of the event that took place in the said house. It had never been the prosecution's case that there was sudden fight that took place on that fateful day. While both PW1 and PW2 stated that the accused and the deceased had a quarrel, they did not state that the quarrel had escalated into a fight. Further, both PW1 and PW2 were never asked about this issue during cross examination, giving rise to an inference that the defence of sudden fight is an afterthought." [22] Nevertheless, the learned trial Judge did not stop there. He continued to consider and appreciate the defence that was put up by the accused person, namely that there was a sudden fight between him and his brother. The trite law is that the defence of an accused person must be considered however weak it may appear to be. The proper appreciation of the effect of an afterthought or belated defence was clearly explained by learned Justice Edgar Joseph Jr. in the case of Alcontara Ambross Anthony v PP [1996] 1 CLJ 705, at p. 707 as so: "It is settled law that although a Court may view with suspicion a defence which has not been put to the appropriate prosecution witnesses who might have personal knowledge of the points at issue, the Court is still bound to consider the defence, however weak, and to acquit, if not satisfied that the prosecution has discharged the burden of proof which rests upon it." [See also this court's judgment in the case of Muhammad Faizal Dzulkifli v PP [2017] 3 CLJ 424.] [23] The learned trial Judge considered whether the accused person had established the four elements that needed to be proven by the accused person under the Exception 4 to section 300 of the Penal Code. [24] On the issue of premeditation, PW1 said the knife used by the accused to stab her husband was not hers, and that she was not familiar with it. PW1 testified that she saw the accused taking a knife from his hip. This is different fro what the accused had said in his evidence, where he said that he took the knife from the wall in the kitchen area in the deceased's house, after the deceased had allegedly slashed a parang at him but had missed. The learned trial Judge had preferred the evidence of PW1 to that of the accused person. Intention may be formed at the spur of the moment and the fact that the accused was armed with a knife would lends support to such a finding. The accused had given evidence on oath and he had lied on a material point relevant to his defence of sudden fight. Telling a lie amounts to a corroboration of an accused's guilt, thus assisting the prosecution's case. (See the case of R v Lucas (Ruth) [1981] 2 All ER 1008, per Lord Lane CJ). [25] On the element of not taking unfair advantage, the deceased was not armed with a parang. The issue on this weapon was never put to PW1 and PW9 the Investigating Officer Inspector Jamal Tampak, during cross-examination when they were in the witness box. The failure of one party to cross-examine the witness of the adverse party, by putting to him or her the version of his story must be taken to mean that version of the adverse party on that issue had been accepted as the truth [see, Wong Swee Chin v PP [1981] 1 MLJ 212] and A.E.G. Carapiet v A.Y. Derderian [1961] AIR Cal 359]. Of course, the cause celebre of Browne v Dunn [1893] 6 R. 67, saw Lord Halsbury in the English House of Lords, stating the following: "It seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a particular witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in crossexamination." [26] This rule has since become the gold standard, inter alia, regarding how a cross-examination ought to be managed by trial counsel. Putting one's case to the relevant adverse party's witnesses during their cross examination is not merely a matter of technical procedure but more importantly, it is also one of substantial justice. It exists to ensure fairness to the witness and to the court in that it gives an opportunity to the party to put his case to a witness in the face of any contradiction, which he plans to make to his testimony. As such, where a party fails to cross-examine a his evidence or on any particular part of it, like in the present appeal [on the failure of the accused person to cross-examine PW1 on the alleged use of a parang by the deceased] such failure amounts to an implied acceptance of the evidence and that party is not allowed to challenge it later [see for example the case of R v Wood Green Crown Court, ex. P. Taylor [1995] Crim LR 879]. [27] Having considered the defence' version, the learned trial Judge had concluded at paragraph 42 of his Grounds of Judgment as follows: oncluded at paragraph 42 of his Grounds of Judgment as follows: "Based on the above reasons, and after considering the evidence before me, I am of the opinion that the accused has failed to prove the defence of sudden fight on the balance of probability. I am also of the opinion that the accused has failed to cast any reasonable doubt on the prosecution's case. I find that the prosecution has successfully proven its case beyond reasonable doubt..." He then proceeded to convict the accused person for murder under section 302 of the Penal Code. [28] Murder as defined under section 300 of the Penal Code may be committed in four circumstances as enumerated therein. In this case before us, the prosecution had proven its charge under section 300 (c) of the Penal Code. Under that clause, culpable homicide is murder, to wit, if the accused person had intended to cause a bodily injury to another person, and if that intended injury inflicted is sufficient in the ordinary course of nature to cause his death. On conviction, it shall be punishable with a death sentence under section 302 of the Penal Code. [29] What are the ingredients to be proved in a murder charge premised on the under section 300(c) Penal Code? It has been lucidly explained by Vivian Bose, J in the leading case of Virsa Singh v State of Punjab, SC 465. He outlines at page 467 the elements to be fulfilled in order to bring a case under clause 3rdly of section 300 of the Indian Penal Code (which is in pari materia with section 300(c) of the Malaysian Penal Code) as follows: "To put it shortly, the prosecution must prove the following facts before it can bring a case under section 300 "thirdly"; First, it must establish, quite objectively that a bodily injury is present; Secondly, the nature of the injury must be proved; these are purely objective investigations; Thirdly, it must be proved that there was an intention to inflict the particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300 "thirdly". It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death." [30] In the words of the Federal Court bench in the case of Tham Kai Yau v PP [1977] 1 MLJ 174, even a single stab can be fatal and can amount to murder. It depended on the risk that was created to the life of the victim. It is culpable homicide not amounting to murder if the bodily injury intended to be inflicted is likely to cause death. It is murder, if death is the most probable result as a direct result of the injury so inflicted. In this case, the post mortem report of the pathologist PW10 stated that the first stab wound that pierced through the heart of the deceased had caused severe injury to the lung and the left ventricle of the deceased's heart injury such that there was a massive loss of blood thereby leading inevitably to the death of the deceased. The deceased had no chance of survival, according to the pathologist. The learned trial Judge had adverted to this finding by the pathologist and observed in paragraph 21 of his Grounds of Judgement, which we reproduce below: "[21] In the instant case, the forensic evidence of PW10 shows that stab wound that pierced through the deceased's heart was the fatal injury sustained by the deceased. This is how PW10 describes the injury: "A stab wound (labelled 1) was seen on the left chest, measured about 1.5 x 0.5 cm, located 49.5 cm below the vertex and 0.5 cm from midline. The stab injuries were the skin, subcutaneous tissue, the cartilage portion of left 5th rib, anterior aspect of pericardial sac, anterior wall of right ventricle, interventricular septum, posterior wall of left ventricle, posterior aspect of pericardial sac and lower lobe of left lung. Hemopericardium was seen with clots weighed 150 gm. Depth of wound was measured about 15 cm." [22] In no uncertain terms, PW10 stated that the said injury is sufficient in the ordinary cause [sic] of nature to cause death." [31] In most instances, guilty intention or mens rea is a matter that is much left for inferences to be made by the trial court from the peculiar circumstances obtaining in each particular case. In this case, the accused person had the knife kept on his person, to wit, on his hip, which he used to stab the deceased twice at a very critical part of his anatomy, namely his chest and that too with sufficient force to rip through his lung and heart causing severe loss of blood resulting in his imminent and inevitable death. There was no chance of him surviving those fatal stab wounds. With respect, we agreed with the learned Deputy Public Prosecutor appearing for the prosecution respondent that murder as defined under section 300(c) of the Penal Code was proven beyond reasonable doubt. The intended injury inflicted to the chest of the deceased was sufficient in the ordinary course of nature to cause his death. The accused did not deny that he stabbed the deceased, but that he did it in an act of sudden fight under Exception 4 to section 300 of the Penal Code, which if proven would relegate the charge to one of culpable homicide not amounting to murder. [32] The learned DC submitted to us, in the Hainie's case [supra], it was highlighted that this Bench in that case had disturbed the verdict of the learned trial Judge, in a case involving the invocation of the defence of sudden fight. Suffice for us to state here that there were a few grounds for the Appeal Justices in the Hainie's case [supra] to so act in favour of the appellant before them. First, they found that the learned trial Judge had failed to consider the defence of sudden fight; secondly, that the appellant had been convicted for murder based on uncorroborated evidence of the prosecution witnesses who were accomplices. Thirdly, the Appeal Justices had noted the borderline nature of the evidence relating to the exception. Finally, from the narration of the facts by the learned Appeal Justices in their Grounds of Judgement, it was clear that there was a serious fight that had taken place where all the protagonists were armed and were hitting at each other. Their Lordships had concluded that: "the evidence reveals that the acts of the appellant in the course of the melee leading to the stabbing of the deceased were done within very short intervals apparently with no opportunity for cooling off. As usual in the fight, the blood already heated up was warmed at every subsequent stroke and the voice of reasons was not heard on either side in the heat of passion. Under such circumstances there cannot be much room for discriminating between the respective degree of blame with reference to the state of things either at the commencement of or in the course of the fray." In citing the case of Soh Cheow Hor v Regina [1960] 26 MLJ 254, their Lordships surmised that any doubt must be resolved in favour of the appellant and their Lordships therefore had set aside the conviction for murder and had it substituted to one for culpable homicide not amounting to murder. [33] With respect, we could not agree with the submissions of learned DC for the accused in that this court ought to follow in the footsteps of our brother Appeal Justices in Hainie's case [supra] for the clear reason that the factual matrix relating to the 'fight' are entirely different. In our case, there might have been a quarrel, verbal in nature, as found by the learned trial Judge, but there was no fight between the brothers. What happened was the accused had stabbed his brother who was unarmed in the chest. On top of that it was manifestly obvious that the accused had taken unfair advantage of the situation. Instead of immediately leaving the house after the quarrel, he took a knife from his hip and stabbed his brother in the chest, a vital part of the human body, not once, but twice. Of course, this, unlike the Hainie's case [supra] did not involve evidence of any accomplice that needed independent corroboration. In our case, there have been clear evidence, believed by the learned trial Judge as credible witnesses that the accused had committed the offence and that there was no mention by them that the deceased had slashed a parang at the accused on that fateful day. As found by the learned trial Judge the failure of the accused to put his case to the relevant prosecution witnesses had smacked of an afterthought defence or one that was of recent invention. Such evidence was not subject to be properly ventilated and examined by the adverse witnesses and therefore would not be capable of attracting much, if not any, weight when compared to the evidence of the prosecution witnesses which was subject to the crucible of cross-examination. It was our considered view that the Hainie's case could not be of any assistance to the accused's cause. [34] Likewise, the reliance by the DC on the case of Seow Khoon Kwee [supra] with respect, was of no avail, as the factual matrix in that case was also entirely different. It related to the fact that the accused in the Seow Khoon Kwee case [supra] only picked up the piece of glass with which he had subsequently used to inflict the fatal injury to the deceased during the course of the fight and the court found that the glass was not used in an unusual manner. As such the exception was found as being applicable in favour of the accused in that case. The learned counsel attempted to bring the factual situation obtaining in the accused case within the embrace of that exception by citing the Seow Khoon Kwee case [supra] in support thereof. However, the factual matrix surrounding this case is materially different to that in the Seow Khoon Kwee case [supra]. In this case, the accused had his knife on his person during the quarrel with his brother. It was placed at his hip and was easily and readily available for use. Such inference was obvious. That was why the accused tried to create the story that he had used a knife that was obtained from the deceased's kitchen wall after the deceased had allegedly slashed a parang at him. But as could be seen from the evidence, PW1, the deceased's wife said it was not their knife and that she had not seen it before the moment the accused took it from his hip to stab the deceased. The learned trial Judge found the evidence of PW1 to be more credible. As such, the facts of this case did not sit squarely with those obtaining in the Seow Khoon Kwee case [supra] so as to persuade us to rule the way the court in the Seow Khoon Kwee case [supra] did. Again, that case could not help the accused's cause, moving forward. [35] We reminded ourselves of the words of the learned authors of Ratanlal and Dhirajlal in the acclaimed book entitled 'The Law of Crimes' (24th Edition) where it was stated therein as regards the element of a sudden fight, as follows: "The word 'fight" is used to convey something more than a verbal quarrel. "Fight" postulates a bilateral transaction in which blows are exchanged. It takes two to make a fight. A fight is a combat between two persons. It is not necessary that weapons should be used in a fight. An affray can be a fight even if only one party in the fight is successful in landing a blow on his opponent. In order to constitute fight, it is necessary that blows should be exchanged even if they do not all find their target. The word "sudden" implies that the fight should not have been pre-arranged". [36] In this appeal before us, there was no fight between the accused and the deceased prior to the fatal stabbing. There was a verbal quarrel, as acknowledged by PW1 and PW2, between the brothers. But there was no fight as understood and defined by the learned authors of Ratanlal and Dhirajlal in the book, "The Law of Crimes" [supra]. The learned trial Judge preferred the evidence of the prosecution witnesses as more credible than that of the accused. This was so especially on the issue of the alleged use of the parang by the deceased. No mention was made by the prosecution witnesses on any parang in their evidence. This issue on use of parang was only raised during the evidence of the accused during his defence. It was never put to PW1, PW2 and the Investigating Officer PW9 during their respective cross-examination. Clearly it was an afterthought created to give an impression that there was a fight between them, when the credible evidence, as accepted by the learned trial Judge showed there was none. [37] Having considered the applicable legal principles and the evidence that had been adduced before the trial Judge, particularly the evidence adduced by the accused to establish his professed defence purportedly couched as Exception 4 to section 300 of the Penal Code, we were unanimous in our view that the learned trial Judge had not committed any misdirection in coming to his decision that the accused person had failed to establish on the balance of probabilities his defence of sudden fight with his brother. The totality of the evidence led by the accused person was less probable as compared to the totality of the evidence led by the prosecution's witnesses pertaining to what happened in the deceased's house in relation to his defence of sudden fight. Neither was the learned trial Judge wrong when he found that the accused person had failed to raise any reasonable doubt as to his guilt. We agreed with him that the prosecution had proven its charge against the accused beyond reasonable doubt. There existed no reason for us to disturb the learned trial Judge's decision in this appeal before us. Conclusion [38] In the upshot, we found no merit in this appeal. We had therefore unanimously dismissed this appeal. The conviction entered against the accused person under section 302 of Penal Code and sentence of death by hanging imposed by learned High Court Judge against the accused person were affirmed. Dated: 24 May 2019 ABANG ISKANDAR BIN ABANG HASHIM Judge Court of Appeal, Malaysia. Parties appearing: For the Appellant: Miss Sharatha Masyaroh Binti John Ridwan Lincon (Assigned Counsel) For the Respondent: Mr. Hamdan Bin Hamzah, Deputy Public Prosecutor Cases referred to: