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1 IN THE HIGH COURT OF MALAYA IN JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM CRIMINAL TRIAL NO. : JA-45B-2-03/2020 BETWEEN PUBLIC PROSECUTOR AND ZHU JIA HONG GROUNDS OF JUDGEMENT Introduction [1] The accused was tried for the murder of Zhao Changxiang (the deceased), and the charge read as follows: “Bahawa kamu pada 6.7.2019 jam lebih kurang 11.30 malam bertempat di asrama pekerja Bilik C1-002 Blok C1 Hostel Site Office Forest City Tanjung Kupang, di dalam daerah Iskandar Puteri di dalam Negeri Johor telah membunuh ZHAO CHANGXIANG No Passport EF9701017 dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan.” [2] The accused was acquitted and discharged at the end of the Prosecution's case, and the Deputy Public Prosecutor (DPP) appealed to the Court of Appeal. 17/03/2026 10:31:24 Kand. 163 [3] The appeal was allowed, and the case was remitted back to the High Court for the accused to enter his defence. [4] Defence was called, the accused gave evidence and relied on the defence of private defence and alternatively grave and sudden provocation, arguing that the Prosecution's evidence itself raises a reasonable possibility that the deceased was the aggressor and that the accused acted to preserve his own life. [5] After hearing both parties and reviewing the Prosecution and defence evidence, I conducted a maximum evaluation of the entire evidence and found that the accused's claim of private defence under sections 96 to 102 of the Penal Code was not established. I therefore found that the Prosecution had proved the element of intention under section 300(c) of the Penal Code beyond a reasonable doubt and convicted the accused under section 302 of the Penal Code. [6] After hearing mitigation and aggravation, the accused was sentenced to 30 years' imprisonment from the date of arrest, 6 July 2019, and 12 strokes of the cane. [7] The accused now appealed to the Court of Appeal, and below are my grounds of judgment. The Facts [8] My earlier ground of judgment (decision at the end of the prosecution case) was published in PP v. Zhu Jia Hong [2024] MLRHU 168, and I shall refer to and reproduce below the facts of the case as narrated by the prosecution witnesses. [9] The following paragraphs are reproduced from the earlier judgment: The Prosecution Case [5] Zhao Changxiang, the deceased, was a Chinese national who recruited construction labourers from China to work at the construction site in Forest City. The accused and his five (5) other friends (SP1- SP5) were workers under the supervision of the deceased. [6] On 6.7.2019, at 9.30 p.m, SP1 and SP3 were in their room (at the worker's hostel) resting when the deceased came and lay down on one of the bunk beds. The room was occupied by both SP1 and SP3 together with four (4) others, SP2, SP4, SP5 and the accused. [7] The accused was out for supper with SP2 and SP5 and returned back to the room at about 11.00 p.m. The testimonies of SP1 to SP5 revealed that the accused spoke to the deceased for ten (10) minutes about his unpaid salary but then got into a heated argument, and the accused was seen with a knife in his hand before he fled the scene. The deceased was then seen lying on the floor next to the bed, covered in blood. [8] None of the witnesses testified positively that they had seen the accused stab the deceased with the knife. However, the Prosecution relied on the circumstantial evidence that the accused was seen holding the knife after an argument with the deceased and that he ran from the scene, although he later turned himself in to the authorities. [9] From the testimony of the pathologist, Dr. Zubair bin Abdul Razak, SP11, it appeared that the cause of death was consistent with that of "a stab wound to the chest" along with 23 other injury marks as described in his report, P17. The stab to the chest penetrated the heart, which caused massive bleeding that directly led to the death of the deceased. Analysis and Findings The Appeal [10] At the prima facie stage, I found that the Prosecution had failed to prove their case; however, upon appeal, the Court of Appeal allowed the Prosecution's appeal and held that the evidence adduced at the close of the Prosecution's case established a prima facie case of murder under section 302 of the Penal Code. [11] The Court of Appeal found that the incident involved only the accused and the deceased and held that the possibility of self-defence at that stage could not negate the inference of intention to cause bodily injury sufficient in the ordinary course of nature to cause death. The case was therefore remitted to the High Court for the accused to enter his defence. The Defence [12] The accused, Zhu Jia Hong, elected to give evidence on oath as the sole defence witness. His defence is that the incident occurred during a dispute with the deceased, Zhao Changxiang, regarding unpaid salary and arrangements for the accused to return to China. [13] According to the accused, the argument escalated when the deceased became angry and aggressive. The accused testified that the deceased was physically bigger and began the confrontation. A struggle then broke out inside the room. [14] During the course of the struggle, the deceased allegedly took hold of a knife and attacked the accused. The accused stated that he sustained a stab injury on his thigh during this attack and was bleeding. [15] The accused's evidence is that he then struggled with the deceased in an attempt to defend himself and to prevent further harm. Both men wrestled and grappled for control of the knife during the altercation. [16] The accused maintained that he did not intend to kill the deceased. His case is that the fatal injuries occurred in the course of the struggle when both men were fighting for the knife. In his testimony, he stated that the deceased could have been injured during this struggle and that the stabbing was not a deliberate act on his part. [17] The accused further testified that after the incident, he left the room and later surrendered himself to the authorities. He informed the police that he had been stabbed by the deceased and that the incident occurred during a fight. The Submissions [18] In the defence submissions, counsel emphasised that the prosecution evidence itself showed that there was a fight between the accused and the deceased and that no eyewitness actually saw the accused stab the deceased. Counsel also relied on the injuries sustained by the accused to support the argument that the deceased was the aggressor. It was submitted that the circumstances of the case are consistent with a struggle in which the accused was acting to protect himself. [19] On that basis, the defence contended that the accused was acting in private defence under sections 96 to 102 of the Penal Code, or at the very least that the evidence raises a reasonable doubt as to whether the accused acted with the intention required under section 300(c) of the Penal Code. The defence therefore, submitted that the accused should be acquitted. [20] The Prosecution submits that the accused's version of events is not credible and does not establish the defence of private defence. Although the accused alleges that the deceased was the aggressor and that the stabbing occurred during a struggle, the Prosecution argues that this explanation is inconsistent with the medical evidence. [21] The post-mortem evidence shows that the deceased sustained 23 injuries, including a deep stab wound to the chest penetrating the heart, which the pathologist confirmed to be the cause of death. The pathologist also rejected the suggestion that the fatal injury was accidental or self-inflicted. The Prosecution, therefore, submits that the accused's claim that the deceased stabbed himself during the struggle is untenable and should be rejected. [22] The Prosecution further argues that even if a quarrel and physical struggle occurred between the accused and the deceased, the accused had exceeded the lawful limits of private defence under section 99 of the Penal Code. [23] The Prosecution emphasises that the accused's injuries were comparatively minor when contrasted with the extensive injuries suffered by the deceased, which undermines the accused's claim that he was acting to save his life. [24] The Prosecution also submits that the surrounding circumstances support the inference of intention under section 300(c) of the Penal Code. The accused used a knife, a dangerous weapon, and inflicted a stab wound to a vital part of the body, namely the chest, which penetrated the heart. Relying on authorities cited in the submission, the Prosecution contends that an intention to cause bodily injury sufficient in the ordinary course of nature to cause death can be inferred from the nature of the weapon used, the part of the body targeted, and the severity of the injury inflicted. [25] Accordingly, the Prosecution submits that the accused has failed to establish the defence of private defence and has failed to raise any reasonable doubt in the Prosecution's case. The Law on Private Defence [26] The defence of private defence in a murder charge is governed by sections 96 to 106 of the Penal Code. Section 96 provides the general principle that nothing is an offence if it is done in the exercise of the right of private defence. Where the right is successfully established, the act complained of is justified in law, and the accused is entitled to an acquittal. [27] The right to cause death in private defence arises only in limited circumstances prescribed under section 100 of the Penal Code. The section provides that a person may cause death if the assault reasonably causes an apprehension that death or grievous hurt would otherwise be the consequence. In determining whether such apprehension exists, the court must consider the circumstances as they appeared to the accused at the material time. [28] However, the right of private defence is not absolute. Section 99 of the Penal Code imposes clear limitations on the exercise of the right. In particular, the right does not extend to the infliction of more harm than is necessary for the purpose of defence. The force used must therefore be proportionate to the threat faced. [29] The courts have consistently applied this principle. In PP v Dato' Balwant Singh (No 2) [2003] 2 MLRH 665, it was recognised that the right may justify the use of lethal force where the accused reasonably apprehended death or grievous hurt. Conversely, where the force used is excessive, the defence will fail. [30] The courts have also recognised that a person faced with a sudden and life-threatening attack cannot be expected to measure the exact degree of force required in the heat of the moment. In PP v Chaw Cheng Kiong [2011] 8 MLRH 678, the court held that a person confronted with such danger cannot be expected to weigh his actions in "golden scales" or react with perfect precision. Nonetheless, the response must still remain within the limits of necessity and proportionality. [31] The right of private defence arises only when there is a reasonable apprehension of danger and continues only so long as that apprehension persists. This principle is reflected in section 102 of the Penal Code. Once the threat ceases, the right of private defence also ends. In PP v Odang [2021] MLRHU 1862, the court held that although the accused initially acted in self-defence, the right ended once the victim fled, and the subsequent pursuit and killing fell outside the scope of lawful defence. [32] Further, numerous decisions held that the court does not impose a strict duty on a person to retreat before exercising the right of private defence. In Musa Yusof v PP [1953] 1 MLRA 343, the court held that a person who is attacked in a place where he has a right to be is not obliged to run away but may stand his ground and defend himself if necessary. [33] Accordingly, in assessing a plea of private defence in a murder charge, the court must examine whether the accused faced a real and imminent threat of death or grievous hurt, whether the force used was necessary and proportionate to repel that threat, and whether the act was committed while the danger continued. If these requirements are satisfied, the act falls within the protection of sections 96 to 106 of the Penal Code. If the accused exceeds those limits, the defence will not avail him. [34] With that in mind, I now turn to the facts of this case. Findings on the defence of private defence [35] The accused relies on the defence of private defence. This right, however, is not absolute and is subject to the limitations prescribed by the Penal Code. In particular, section 99 provides that the right does not extend to the infliction of more harm than is necessary for the purpose of defence. The right also continues only so long as the apprehension of danger persists, as reflected in section 102 of the Penal Code. [36] Recent decisions of the Federal Court and Court of Appeal emphasise that the court must assess whether the accused had a reasonable apprehension of danger at the material time. In Mickelson Gerald Wayne v PP [2022] 1 MLRA 656, the Federal Court held that the reasonableness of the apprehension must be assessed from the perspective of the accused facing the danger at that moment, rather than by a detached analysis after the event. [37] Furthermore, the right of private defence exists only while the danger persists. Once the threat is neutralised, the right immediately ceases. I refer to the case of PP v Ngumbang Anak Abang & Another Appeal [2024] 5 MLRA 355, where the Court of Appeal held that the defence failed where the accused continued to stab the deceased after he had been disarmed and restrained, as the apprehension of danger had already ended. [38] At the same time, the law recognises that a person confronted with a violent attack is not required to retreat. In PP v Donny Kok & Another Cases [2021] MLRHU 1521, the court accepted that a person may stand his ground and use force where necessary to repel a serious threat. [39] Applying these principles to the present case, the defence submits that the accused acted in self-defence during a struggle with the deceased. I accept that the evidence shows there was a quarrel and a physical struggle between the accused and the deceased. I am also prepared, for the purpose of analysis, to accept that the accused may initially have apprehended danger to his person. [40] However, the evidence does not support the conclusion that the accused acted within the lawful limits of private defence. The medical evidence, which I accept, shows that the deceased sustained 23 injuries, including a deep stab wound to the chest which penetrated the heart and caused death. [41] The pathologist rejected the suggestion that the fatal injury could have been self-inflicted or accidental. The accused's explanation that the deceased stabbed himself during the struggle is therefore not supported by the medical evidence, and I reject it. [42] I agree with the submission of the Prosecution that the nature, number and location of the injuries inflicted on the deceased demonstrate that the force used by the accused was excessive and far beyond what would have been necessary to defend himself. [43] Even if the accused initially acted in response to a perceived threat, the law is clear that the right of private defence ends once the danger ceases or when the defender uses excessive force (see PP v Ngumbang Anak Abang). The infliction of multiple injuries, culminating in a fatal stab wound to the chest, shows that the accused's actions went beyond defensive conduct and fell outside the protection afforded by section 96 of the Penal Code. [44] In the circumstances, I find that the accused has failed to establish that his actions were done in the lawful exercise of the right of private defence. [45] As held in Hii Tiong Hsia & Anor v. PP [2017] MLRAU 81, the right of private defence is nullified when the force used is clearly excessive. In that case, the court found that slashing a victim who was already retreating or in a vulnerable position exceeded the limits of Section 99(4). [46] Upon maximum evaluation of the whole case, I find that the defence does not raise a reasonable doubt in the Prosecution's case. The Prosecution has therefore succeeded in proving beyond a reasonable doubt that the accused intentionally caused bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause death, thereby satisfying the requirement under section 300(c) of the Penal Code. [47] Accordingly, the defence of private defence fails. Plea in mitigation and aggravating factors [48] Before the sentence was imposed, the court heard the plea in mitigation from learned counsel for the accused and the Prosecution's response. [49] Counsel for the accused submitted that the accused is a young man aged 28 years old. He comes from a modest background in China and is the main person responsible for supporting his aged mother. Counsel further informed the court that the accused has two siblings and that the family relies on him for their sustenance. It was submitted that the accused had come to Malaysia after being persuaded by the deceased with the hope of obtaining employment and improving his family's financial situation. Counsel also highlighted that the accused has no previous criminal record, and this is his first offence. In light of these circumstances, counsel pleaded for leniency and urged the court to impose a sentence of imprisonment rather than the death penalty. [50] The Prosecution, however, submitted that this is a serious offence and the court should impose a firm sentence in the interest of justice. The Prosecution emphasised that the accused ought to have exercised self-control in the circumstances. Instead, the accused inflicted numerous stab wounds on the deceased, resulting in serious injuries, including the fatal stab wound to the chest. The Prosecution therefore submitted that the gravity of the offence and the manner in which it was committed warranted a stern sentence. Sentence [51] After hearing the plea in mitigation by counsel for the accused and the submissions of the Prosecution, I have considered the circumstances of the accused as well as the seriousness of the offence committed and I have also taken into account the mitigation raised by the accused. [52] However, I must also consider the gravity of the offence and the manner in which it was committed. The deceased suffered numerous stab wounds, including a fatal stab wound to the chest, which penetrated the heart. The nature and extent of the injuries inflicted reflect a high degree of violence. In the circumstances, a firm sentence is necessary to reflect the seriousness of the offence. [53] In determining the appropriate sentence, the court must weigh these factors carefully before deciding on the nature and length of the sentence. In the present case, although the offence committed is undoubtedly serious, I find that the circumstances do not disclose a premeditated act by the accused. [54] The evidence shows that the incident arose from a sudden quarrel which escalated into a physical struggle, during which a knife happened to be in the possession of one of the parties. While the consequences were grave, the manner in which the offence occurred does not fall within the category of cases that would warrant the imposition of the death penalty. In these circumstances, the interests of justice are better served by the imposition of a custodial sentence rather than the ultimate punishment. Conclusion [55] Having considered all the circumstances of the case, I am of the view that the appropriate sentence is imprisonment. Accordingly, the accused is sentenced to 30 years' imprisonment from the date of arrest, 6 July 2019, and 12 strokes of the cane. Dated : 16th March 2026 (NOOR HAYATI BINTI HAJI MAT) Judge High Court of Malaya Shah Alam Counsel :- For the Prosecution: Tuan Umar Faiz bin Abdul Kohar Pejabat Penasihat Undang-Undang Negeri Johor Aras 2, Bangunan Dato’ Jaafar Muhammad Kota Iskandar, Iskandar Puteri Johor. For the Accused – Datin Freda Sabapathy Tetuan Freda Sabapathy & Co Unit UG-02, Ground Floor Menara TJB, No. 9 Jalan Syed Mohd Mufti 80000, Johor Bahru Johor.