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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

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Counsel Solicitor:-

For the Appellant:

Hamdan Hamzah

Timbalan Pendakwa Raya

Jabatan Peguam Negara

62100 Putrajaya

For the Respondent:

Abdul Gani Zelika

T/N Johari & Zelika

Peguambela & Peguamcara