in the court of appeal, malaysia, holden in kota …abang iskandar abang hashim, jca ahmadi haji...
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IN THE COURT OF APPEAL, MALAYSIA, HOLDEN IN
KOTA KINABALU, SABAH
(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. S-05-331-11/2014
BETWEEN
PUBLIC PROSECUTOR … APPELLANT
AND
HAMZAH BIN YUNUS … RESPONDENT
(In the Matter of The High Court of Sabah and Sarawak at Tawau
Criminal Trial No. TWU-45-3/2-2013
Between
Public Prosecutor
And
Hamzah bin Yunos
CORUM:
MOHD. ZAWAWI SALLEH, JCA
ABANG ISKANDAR ABANG HASHIM, JCA
AHMADI HAJI ASNAWI, JCA
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JUDGMENT
[1] The respondent was originally charged with the murder of one
Marsuki bin Pade on 8.6.2011 at about 6.30 p.m. in a Proton Wira motor
taxi bearing the registration number HS 1377, near Tawau Golf Club,
Jalan Tiku Sin Onn, Tawau, an offence punishable under s.302 of the
Penal Code (‘PC’). However, at the end of the prosecution’s case, the
charge was amended by the learned Judicial Commissioner (‘trial judge’)
to read as follows:
“That you on the 8th day of June 2011 in between 8.30 p.m. to 9.00 p.m.
by the road side near Taman Golf Club, at Jalan Sin Onn Tiku, in the
district of Tawau, in the state of Sabah committed culpable homicide not
amounting to murder such bodily injury likely to cause the death of
Marsuki Bin Pade (KPT No. 670705-12-5907) and thereby committed an
offence punishable under s.304(a) of the Penal Code.”
[2] The respondent forthwith pleaded guilty to the said amended charge
and having opined that public interest demands the imposition of a severe
sentence designed not only to punish the respondent but also to deter
other would be offenders from repeating the same, the trial judge
sentenced the respondent to a term of 25 years imprisonment, to run with
effect from the date of his arrest.
[3] Aggrieved by the said amendment of the charge, the Public
Prosecutor mounted this appeal.
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[4] We heard the appeal on 18/7/2016 and unanimously found that the
appeal was bereft of merit. Hence, we dismissed the same and affirmed
the conviction and sentence handed down by the learned trial judge. We
now give our grounds.
The case For The Prosecution
[5] At about 8.00 p.m. on 8.6.2011, PW-3 (Daniel Richard) left his house
in a car heading to a place near a river at Sin Onn to look for frogs. Along
the way near his destination, he saw a taxi at the side of the road with its
lights on. He thought nothing of it and proceeded to mind his own
business.
[6] After a while, he decided to go home when he found the place was
flooding. He saw the said taxi still at the same spot. He ventured to
approach the taxi to extend his help if so required. However, he saw the
deceased (Marsuki bin Pade) pretty dead seated on the driver’s seat in a
leaning position with a knife piercing his left neck.
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[7] PW-3 then rushed to the security post of Tawau Golf Club where he
met PW-4 (Selamat bin Amat). He requested PW-4 to call the police
because his own handphone was out of credit. The police party arrived at
the scene a few minutes later upon being notified by PW-4.
[8] PW-7 (Sarjan Mancha ak Andrew Jelani) was a member of the
police party. According to PW7, at the scene, PW-5 (Kadir bin Kanik)
came to him to inform him that the respondent was involved in the death
of the deceased. PW-7 was also informed that the respondent was injured
and was recuperating in his (PW-5’s) house located at Tawau Golf Club
workers’ barrack.
[9] Meanwhile, PW-5 narrated that on the day and time in question, he
was at home at one of the Tawau Golf Club workers’ barracks. Soon after
the broadcast of the 8.00 p.m. TV3 news channel, he heard strong knocks
on the back door of his house. He opened the said back door and saw
the respondent standing in front of the same. The respondent identified
himself as PW-5’s nephew by the name of Hamzah.
[10] PW-5 noticed that the respondent had sustained injuries on his head
and forearm as shown in the photographs exhibit P7(2) and (3). The
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injuries were still fresh and the respondent was bleeding from his wounds.
The respondent was only clad in a pair of jeans and a pair of shoes.
[11] PW-5 gave the respondent a pair of pants (for the respondent to
change his blood stained jeans), a sarong and two pieces of towels (for
the respondent to clean his injuries). PW-5 then disposed off the
respondent’s jeans and shoes at the back of his house. During the trial,
PW-5 identified the appellant’s jeans as exhibit P26A, and shoes as exhibit
P25A.
[12] PW-5 further testified that the respondent had told him that he (the
respondent) was involved in a fight with his supervisor over a dispute
regarding his salary and that two people had died.
[13] PW-5 also said that he went to the scene to check out the
respondent’s story. He met PW-7 at the scene and relayed the information
given by the respondent to PW-7.
[14] PW-7 together with his fellow officers and led by PW-5 then
proceeded to arrest the respondent at PW-5’s house.
[15] PW-7 also testified that the respondent lived at Taman Rainbow,
about 18 to 20 kilometers away from the crime scene.
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Findings Of The Trial Judge At The End Of The Prosecution’s Case
[16] At the end of the prosecution’s case, the learned trial judge found
that the prosecution had failed to establish a prima facie case of an offence
punishable under s.302 of the PC. However, there was compelling
evidence to point to the commission of an offence under s.304(a) of the
same. Hence, the charge preferred against the respondent was amended
to one under s.304(a) of the PC.
[17] The amended charge, as drafted by the learned trial judge, is
reproduced in its entirety in paragraph [1] above. The respondent wasted
no time in pleading guilty to the same and was consequently sentenced to
25 years imprisonment.
The Grounds Of Appeal
[18] The learned Deputy Public Prosecutor (‘DPP’), for the appellant
drew our attention to the following excerpts of PW-5’s testimony in cross-
examination at pp. 77, 78, Rekod Rayuan Jenayah (‘RRJ’) Vol. 1:
“Q: Saya katakan bahawa waktu ini Hamzah mengaku terlibat dan
kamu tanya kenapa dia buat begitu. Hamzah bagi tahu sebab
pemandu taxi itu yang dahulu menikam. Setuju?
A: Setuju.
Q: Apa lagi yang Hamzah ceritakan kepada kamu?
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A: Bilang si Hamzah dia yang serang. Kerana itu fasal tambang.
Lepas itu pemandu taxi itu mengambil pisau tikam si Hamzah.
Lepas itu si Hamzah rampas itu pisau tikam itu pemandu.”
[19] The learned DPP also referred us to the re-examination of the said
witness appearing at pp. 78, 79, of the same volume:
“Q: Tadi kamu ditanya peguam, bilang si Hamzah dia serang
pemandu taxi itu fasal tambang. Boleh beritahu mahkamah apa
lagi yang Hamzah bagi tahu berkenaan dia serang pemandu taxi
berkenaan tambang?
A: Itu saja dia bilang fasal tambang. Perjanjiannya waktu itu dengan
si Hamzah RM15. Lepas itu dia kasi duit RM50 tidak mahu
kembali baki tambang. Diserang itu fasal dia tidak mahu kasi balik
baki tambang. Dia serang pemandu taxi itu guna hammer di
kepala pemandu taxi.
Q: Apa Hamzah bagi tahu kamu berkenaan pisau?
A: Driver taxi punya.
Q: Mengapa pisau itu keluar?
A: Dia ketuk kepala, baru pemandu taxi keluarkan pisau kemudian
dirampas si Hamzah.
Q: Selepas dirampas?
A: Tikam pemandu taxi. Si Hamzah yang bagi tahu saya semasa di
dalam rumah.”
[20] At p.80 of the same volume of the RRJ, the learned trial judge
allowed further cross-examination by learned counsel in view of the
aforesaid new evidence by PW5:
“DC: PUT: Hamzah bagi tahu kamu mula-mula mereka fasal tambang
kemudian si Hamzah pukul pemandu taxi di kepada dengan
hammer. Kemudian pemandu taxi keluarkan pisau.
Pemandu taxi tikam Hamzah. Hamzah rampas pisau.
Hamzah tikam pemandu taxi.
A: Setuju.
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[21] Based upon the above evidence, the learned DPP posited that it was
the respondent alone who had stabbed the deceased. It was further
argued that in all the circumstances of the case, the learned trial judge
had erred in law and in fact in amending the charge to one under s.304(a)
of the PC grounded purely on a purported sudden fight between the
appellant and the deceased pursuant to Exception 4 of s.300 of the PC
when there is no such evidence before the court.
[22] Additionally, it was submitted by the learned DPP that the
respondent had taken undue advantage or had acted in a cruel or unusual
manner against the deceased when he proceeded to stab the deceased
after the deceased was disarmed. The respondent could have avoided
the tragedy if he had chosen to leave the deceased after he had secured
the knife from the deceased. Hence, the respondent could not seek the
shelter under Exception 4 of s.300 to account for his deeds.
[23] It was finally submitted that the prosecution had made out a prima
facie case against the respondent on the original charge under s.302 of
the PC where pursuant to s.105 of the Evidence Act, 1950, the burden is
upon the respondent to show that Exception 4 of s.300 of the PC did
indeed apply to operate in his favour. It was thus implored upon us to
order the respondent to enter his defence upon the original charge.
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Our Decision
[24] The learned trial judge had indeed invoked Exception 4 of s.300 of
the PC to amend the charge of murder under s.302 to one of culpable
homicide not amounting to murder under s.304(a) of the same code. At
p.15 of the RRJ Vol. 1, the learned trial judge clearly stated “...The
evidence led by the prosecution shows that there was a case of culpable
homicide not amounting to murder falls (sic) under exception 4 of section
300...”.
[25] The said Exception 4 provides:
“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 manner or unsual manner.
Explaination – it is immaterial in such cases which party offers the
provocation or commits the first assault”.
[26] Both the prosecution and the defence were on common ground that
it was indeed the respondent who had inflicted the fatal injury leading to
the demise of the deceased. Hence, there is no issue in respect of the
identity of the perpetrator of the crime.
[27] The learned authors in Ratanlal and Dhirajlal’s Law Of Crimes,
25th Edition at p.1363, postulated that the following cardinal conditions
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must be satisfied before the taking of the life of a person is justified on a
plea of sudden fight under Exception 4 of s.300 of the PC:
(i) there was a sudden fight;
(ii) there was no premeditation;
(iii) the act was committed in a heat of passion; and
(iv) the assailant had not taken undue advantage or acted in a
cruel manner.
[28] Now, the prosecution’s case appeared to be dependent entirely
upon the evidence of PW-5 to prove the factual evidence of the infliction
of the fatal injury, in particular, the stabbing of the deceased’s neck with a
knife as initially discovered by PW-3. As we have seen, PW-5 merely
regurgitated what was allegedly narrated to him by the respondent. There
were no independent eye witnesses to give a true account of what had
actually transpired between the deceased and the respondent prior to the
stabbing.
[29] However, a scrutiny of PW-5’s testimony flatly reveals its inherent
infirmities. In examination in chief, he said that the respondent had told
him that he had a fight with his mandur at Jalan Timor over the payment
of his salary and that two people had died.
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[30] PW-5 contradicted himself though in cross-examination when he
said that the respondent had told him that it was the deceased who had
attacked him with a knife over a dispute regarding the taxi fare. It was
alleged that the deceased charged the respondent RM15.00 as the taxi
fare but when the respondent gave him RM50.00, the deceased allegedly
refused to return the balance. PW-5 further said that the respondent told
him that it was the deceased who took out the knife and stabbed the
respondent before the respondent managed to seize the knife from the
deceased and in turn stabbed the deceased. It was also revealed during
the re-examination of PW-5 that the respondent had also attacked the
deceased using a hammer. Such was the temerity of PW-5’s evidence.
His testimony does not inspire much confidence indeed.
[31] The investigating officer, PW-11 (Insp. Ridzuan b. Khalid), yet again
gave another version of the event. According to him, his investigation
revealed that it was the respondent who had beaten the deceased first on
his neck by using a hammer in his attempt to rob the deceased. The
deceased retaliated by taking out a knife which was kept in the taxi and
stabbed the respondent.
[32] Such was the evidence as it stood at the end of the prosecution’s
case. It is apparent that on a maximum evaluation of the evidence, none
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of the limbs under s.300 of the PC were proven on a prima facie case
basis to justify calling the defence for the offence of murder against the
respondent. The evidence was bereft of credence to either show the
intention of the respondent under limb (a) of s.300, or to reveal such
conduct indicating his intention of causing such bodily injury he knew to
be likely to cause the death of the deceased under limb (b), or his intention
of causing bodily injury which is sufficient in the ordinary course of nature
to cause death under limb (c). Equally, not an iota of evidence was
adduced to indicate the commission of an offence under limb (d).
[33] On the other hand, the learned trial judge, at pp. 14, 15, RRJ Vol. 1,
found and/or inferred the followings facts from the proven scheme of
events:
“While there are no doubt that it was the accused who had inflicted the
fatal injuries namely the stab wound that led to the death of the deceased,
there are in fact 2 version as to the event that led to his death. Through
the Investigation Officer of the case PW11 (Ridzuan b. Khalid) the
prosecution case was that the accused was the one who hit the deceased
first using a hammer on his neck in his attempt to rob the deceased. The
deceased then retaliated by taking out a knife which was kept in the taxi.
It could be inferred that there was a fight that ensure ended up with the
deceased’s death.
On the other hand, PW5 in his evidence told the court that the accused
told him that there was an argument between him and the deceased which
started from the issue of the taxi fare. The accused told PW5 that the
deceased charged RM15 for the journey but when he (the accused)
handed RM50 note to him, the deceased refused to return the change. It
was during this argument that the accused hit the deceased with a hammer
and the deceased then took out a knife and a scuffle ensured. From the
photograph that was taken and tendered the reasonable influence that can
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be drawn is that there had been a fierce scuffle between the two which can
be seen from the presence of blood in the car and at driver’s door. The
windshield was also broken and found some distance from the car.
The fact that the accused was also injured indicated that the situation
was so intense and there was a possibility that the accused was
defending himself. It was during this scuffle that it was probable that
the accused finally get hold of the knife and stabbed the deceased.
In my opinion, PW5’s evidence which was not challenged by the
prosecution gave an inference that there was a heated argument
which then escalated into a sudden fight resulted in the death of the
deceased.
The evidence led by the prosecution shows that there was a case of
culpable homicide not committing to murder falls under exception 4 of
section 300.
In the circumstances I am of the opinion that the prosecution has failed to
prove a prima facie case for an offence of murder. However there are
ample evidence which show that the accused a prima facie case under
section 304(a) and in exercising the court’s direction I amend the charge
against the accused to section 304(a).” (emphasis is ours).
[34] We were with the learned trial judge. These were findings of fact
and/or inferences made by the trial judge who had the audio and visual
advantage of observing and assessing the witnesses testifying before him,
something which we did not possess. Such findings of fact by the trial
judge is therefore entitled to great respect and great weight should be
attached thereto unless of course the decision of the fact finder is plainly
wrong. On the evidence, we were fully satisfied that the learned trial judge
had not erred and his findings were fully supported by the evidence
heaped against the respondent. In our view, it leaves no leeway for
appellate interference in all the circumstances of this case.
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[35] We were of course very mindful that under s.105 of the Evidence
Act, 1950, the burden is shifted and is now upon the respondent to prove
the applicability of Exception 4 as a defence operating in his favour and
the burden is discharged on a balance of probabilities – see Ikau Anak
Mail v PP [1973] 2 MLJ 153. Hence, the respondent ought to be called
to enter his defence in order to discharge that burden. Nevertheless, it is
equally trite law that apart from the respondent’s testimony, his defence
can also be established and ascertained from the cross-examination of
the prosecution witnesses or more importantly, from the evidence of the
prosecution witnesses itself. In the present appeal, there is no scarcity of
evidence from the prosecution witnesses itself, to justify the learned trial
judge’s decision to reduce the charge from one of murder to one of
culpable homicide not amounting to murder against the respondent and
thereby calling for his defence upon the said amended charge. The
respondent had then pleaded guilty to the amended charge for culpable
homicide not amounting to murder.
[36] We were of the further view that it is immaterial who had started the
fight between the respondent and the deceased. The explanation to
Exception 4 clearly provides that in such cases it is immaterial which party
offers the provocation or commits the first assault. More importantly, the
evidence and the consequent findings of the learned trial judge clearly
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indicated that there was evidence of a sudden fight with great intensity, of
which the causative factors were unclear and of which its materiality is of
not much relevance.
[37] There was also no evidence that the sudden fight was premeditated
or that the respondent had accosted the deceased for a fight or that the
respondent had come prepared specifically to have a fight with the
deceased when he boarded the deceased’s taxi. The weapon that was
used to cause the fatal injury was not the respondent’s and neither was
the origin of the hammer unraveled.
[38] In addition, we were of the view that the respondent had not taken
undue advantage of the deceased haplessness, if any, and had not acted
in a cruel or unusual fashion. There was no evidence that the respondent
had brutally stabbed or assaulted the deceased multiple times. On the
other hand, the evidence showed that the respondent had stabbed the
deceased only once in the neck that swiftly led to the deceased’s death.
The respondent himself suffered serious injuries on his head and forearm
and was still bleeding from his wounds when PW-7 effected his arrest
several hours later.
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Conclusion
[39] For the reasons stated above, we found that the learned trial judge
had correctly amended the charge to one under s.304(a) of the PC and
the corresponding conviction of the respondent under the amended
charge is safe. We were also satisfied that the learned trial judge had
meticulously gone through and correctly appreciated the evidence before
him. There were no appealable errors warranting our intervention.
Henceforth, we had dismissed the appeal before us and affirmed the
conviction and sentence handed down upon the respondent by the
learned judge.
Dated: 6th September 2017
( AHMADI HAJI ASNAWI )
Judge
Court of Appeal, Malaysia