[2018] 1 LNS 133 Legal Network Series

IN THE COURT OF APPEAL OF MALAYSIA

(APPELLATE JURISDICTION)
SANDAKAN
[CRIMINAL APPEAL NO. S-05(M)-385-10 of 2016]

BETWEEN

HAMDAN PULMAHAN ... APPELLANT

AND

PUBLIC PROSECUTOR ... RESPONDENT

(IN THE H IGH COURT OF SABAH AND SARAWAK AT KOTA

KINABALU
CRIMINAL CASE NO- 45B-2/3 OF 2014

BETWEEN

PUBL IC PROSCUTOR ... PROSECUT ION

AND

HAMDAN PULMAHAN ... ACCUSED)

BEFORE THE HONOURABLE

CORAM:

DAVID WONG DAK WAH, JCA

HAMID SULTAN ABU BACKER, JCA
KAMARDIN HASHIM, JCA

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JUDGEMENT OF THE COURT

Introduction

1. This is an appeal against the decision of the High Court in which

the learned Judge convicted and sentenced the
Appellant/accused for the offence of murder under S. 302 of the
Penal Code.

2. The charge against the Appellant reads as follows:

“Bahawa kamu pada 6/10/2013 di antara jam 1.15 petang hingga

1.45 petang, bertempat di bawah kolong, rumah tidak bernombor,
Pulau Berhala, Bandar Sandakan, di dalam Daerah Sandakan, di
dalam Negeri Sabah, didapati dengan niat telah membunuh
Guanding bin Masirin (IP 12091 9980 - IMM13). Oleh itu kamu
telah melakukan satu kesalahan yang boleh dihukum di bawah S.
302 Kanun Keseksaan”

3. We heard the appeal and after due consideration to submissions

of the respective counsel and the evidence adduced in the trial
Court, we dismissed the appeal and affirmed the decision of the
learned High Court Judge. We now give our reasons for that
decision.

Background facts:

4. The detailed facts have been set out in the learned Judge’s
grounds and we don’t intend to repeat them here. For the
purpose of this appeal we will only set out in brief the relevant
facts required for our grounds.

5. The deceased was the father in law of the Appellant and they
live on the island of Berhala, a nearby island of Sandakan,
Sabah. The daughter of the Appellant had of late been staying

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with the deceased and his family.

6. On 6.3.2013 at about 1.30 pm, there was a quarrel between the

deceased and the Appellant. That quarrel emanated from an
attempt by the Appellant to take his daughter back to his home,
to which the daughter refused to do so. Upon seeing the
Appellant’s daughter’s refusal, the deceased asked the Appellant
not to force her to do so. That quarrel unfortunately turned fatal
with the Appellant stabbing the deceased on the chest and other
parts of his body which led to the death of deceased despite the
efforts of others in the stationed army camp medical center.

Prosecution case:

7. The prosecution at the High Court had correctly submitted that

for the charge of murder to be sustained, the following elements
had to be proved:

(a) Guanding bin Masirin is the deceased.

(b) Guanding bin Masirin died due to injuries found on her.

(c) The injuries found on Guanding bin Masirin’s body were

inflicted by the Appellant in circumstances set out in Section
300(a) - (d) of the Penal Code.

8. In respect of the first element, it was an undisputed fact that the

deceased was in fact one Guanding bin Masirin.

9. As for the second element, the prosecution called one Dr Jessie

Hiu, PW6, the pathologist who conducted the post mortem. Her
conclusion of the post mortem was that the deceased had
succumbed to his death due to a stab wound to the chest. The
relevant evidence was these:

The evidence of PW6 on the explanation of the report can be

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referred at page 75 to 76 Record of Appeal Volume 2 as follows;

Q: Can you explain about your finding in your report?

A: The conjunctivae of the deceased eye and his oral mucosa

were pale, there were 6 stab wounds. One of the stab wounds
was on the front of the chest at the midline which injured the
breast bone, the covering of the heart, the left side of the
heart, diaphragm, liver, lining of the abdomen cavity and the
pancreas. The injury described in my post mortem report
page 2 under heading of Injuries no. 1. There was another
stab wound on the left side of the abdomen which penetrated
the abdomen cavity but did not injure any vital organs. A
stab wound was seen near the left armpit and 2 stabs wounds
was seen on the left upper limb. These stab wounds only
injured soft tissues. The other injuries were minor scratch
abrasions. The stab wound on the chest caused bleeding to
the right chest cavity and the right lung was collapsed. All
the internal organs were pale.

Further at page 78 of the same Record of Appeal Volume 2, PW6

made a finding of the cause of death as follows;

Q: Are you able to determine the cause of death of the

deceased?

A: The cause of death is stated in my post mortem report

under heading of cause of death hypovolaemic shock
due to stab wound in the chest in this case injury no.
2.

Q: Can you explain in layman terms what is

hypovolaemic shock?

A: It is a condition caused of excessive loss of blood

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leading to drop to the blood pressure and reduced
blood supply to the vital organs causing death.

10. As for the third element, the prosecution relied on the witnesses
present at the place and time of the fatal incident. These
witnesses were PW10, the deceased’s wife, PW5, the deceased’s
other son in law and PW3, the other daughter of the deceased.
The sum total of the evidence of these three witnesses was that
they had witnessed the quarrel between the deceased and the
Appellant and it was the Appellant who had inflicted those
injuries to the deceased which led to his death.

11. PW5, after confirming the quarrel relating to the Appellant’s

attempt to take his daughter back, had explicitly testified that he
saw the Appellant stabbing the deceased which led to the
deceased falling to the ground. PW10 similarly confirmed the
aforesaid attempt and after coming back from upstairs of the
Kolong saw the Appellant standing next to the body of the
deceased. PW3 on that fateful day was cooking and after hearing
noises of quarrelling came downstairs of the house and then saw
the Appellant stabbing the deceased.

High Court:

12. The learned Judge after detailed analysis of the evidence of the
prosecution found that the Appellant had a case to answer. It
was contended by learned counsel at the trial that these three
witnesses were all interested witnesses and further their
evidence were contradictory in nature.

13. The learned Judge dealt with both contentions in the following
manners:

[25] First and foremost it must be noted that PW3, PW5 and
PW10 are related to the deceased. PW10 was the deceased’s

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wife; PW3 was his daughter whereas PW5 was his son in
law. They are interested party in the outcome of this case.
The point that I wish to highlight here is whether being an
interested parties their evidence should be disbelieved. As I
have said PW3, PW5 and PW10 were related to the deceased
hence there is always a tendency that they would give
evidence favourable to the prosecution.

[26] In the case of Dorai Pandian A/l Munian & Anor v. Public
Prosecutor [2009] 4 MLJ 525, Ahmad Maarop JCA (as His
Lordship then was) in delivering the decision of the Court of
Appeal cited with approval the case of Balasingam v. Public
Prosecutor [1959] MLJ 193 and states that:

“...there is no legal presumption that her evidence

(the interested witness) should not be disbelieved,
unless there are cogent reasons to disbelieve her (the
interested witness) in the light of the evidence to the
contrary and the surrounding circumstances...” (the
underlined is mine)

[33] I have subjected the evidence of PW3, PW5 and PW10 on a

maximum evaluation test. However, it must be noted that
from my observation, these witnesses are simple kampong
folk who may not fully understand the evidence posed to
them. For example Q&A 306, Q&A 307:

Q306 PUT: kamu tidak bercakap benar sebab isteri

kamu sendiri cakap semasa dia beri
keterangan semasa kejadian itu kamu
menghantar anak kamu ke rumah abang
kamu dan kamu hanya sampai di tempat

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kejadian setelah bapa mertua kamu sudah
terbaring, setuju?

A: Setuju

Q307: Ertinya kamu setuju bila saya katakana

kamu tidak bercakap benar?

A: Benar

[34] Further, in QA 310 and QA311 PW5 was asked:

Q310: I put it to you that: kalau betul kamu ada di

sana, kamu tidak Nampak kejadian di mana
Hamdan betul-betul ada menikam mertua kamu,
setuju?

A: Setuju.

Q311: Setuju apa?

A: Setuju dia menikam.

[35] In the case of Pie bin Chin v. Public Prosecutor [1985] 1

MLJ 234, at page 235 it was observed that:

“Discrepancies are no doubt present in this case, as

they do ostensibly appear in most cases in evidence of
witnesses for the prosecution as well as the defence.
The transcript of most evidence, when thoroughly
tooth-combed by any able lawyer, never fail to yield
some form of inconsistencies, discrepancies or
contradiction but these do not necessarily render the
witness’s entire evidence incredible. It is only when a
witness’s evidence on material and obvious matters in
the cases is so irreconcilable, ambivalent or

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negational that his whole evidence is to be
disregarded.”

[36] In my opinion, the above discrepancy arises from the PW5’s

misunderstanding of the question posed to him. The above
discrepancies came about when learned counsel was
suggesting to the witness that he did not see the whole
incident. It is my observation that the accused could not
understand the nature of the question put to him but chose to
answer it based on his perception. While he agreed with the
learned counsel’s suggestion that he did not see the accused
stabbed the deceased, what he meant to say is that he did see
the accused stabbed the deceased.

14. From the above, we had no hesitation in saying that the learned
Judge was perfectly correct in calling the Appellant to enter his
defence.

15. In his defence, the Appellant’s counsel contended that there was
grave and sudden provocation on the part of the deceased
leading to a fight between the deceased and the Appellant. The
learned Judge rejected the contention and his reason is as set out
in paragraph 71:

“I have ruled that there is no truth in the accused’s allegation that

the deceased had started the fight first. Hence I am of the opinion
there is no reason for this court to believe that the accused was
exercising his right to private defence when he stabbed the
deceased. The accused did not give plausible explanation as to why
he had to bring the knife to the deceased’s house. I do not believe
his story that he had to bring the knife to his friend’s house prior
to him going to the deceased house for the purpose of peeling the
mango. If it is true that the accused did go to his friend’s house (by
the name of Amir) to eat mango, he can always use the knife at his

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friend’s house for that purpose. The accused did not call his friend
to corroborate his story. The act of carrying the knife is not only
unreasonable but also dangerous and illegal. In my opinion the
only reason for him to carry the knife with him to the deceased’s
house on that fateful day is to prepare for any eventuality when he
tried to bring his daughter home. In this respect and in the light of
PW5’s evidence that the accused had stabbed the deceased without
any provocation from the deceased, it cannot be said that the
accused’s act was not premeditated.”

Our ground of decision:

16. From the submission of learned counsel for the Appellant, the
complaints were these:

(a) Learned Judge erred in finding there was a prima facie case.

(b) Learned Judge erred in failing to find that there was grave
and sudden provocation by the deceased.

(c) Learned Judge erred in failing to find that the Appellant was
merely acting in self-defence.

Prima facie case:

17. Learned counsel’s first contention here was that had the
deceased been immediately treated for the hypovolaemic shock,
he would not have died and hence the intention to kill by the
Appellant was in fact missing which would make the charge of
murder unsustainable. With respect, we found no merit on such
contention as PW6 had testified that the cause of death to the
deceased was hypovolaemic shock due to the stab wound in the
chest. That wound is injuries 2 in the report of PW6 and is
described as “the breastbone, the covering of the heart, the left
side of the heart, the diaphragm, liver, lining of abdomen cavity

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and the pancreas”. PW6 had testified that those injuries were
fatal and since there were no contrary evidence, the High Court
was fully entitled to accept such evidence. The fact that the
deceased could have been saved in our view were irrelevant as
the injuries listed in the report of PW6 were serious in nature.
Further there was evidence that attempt was made to save the
deceased at the medical center at the army camp on the island of
Berhala. The fact that it failed to save the deceased’s life did not
neutralize the act of the Appellant.

Grave and Sudden provocation and self-defence:

18. What amounts to grave and sudden provocation is set out in the
case of Che Omar Mohd Akhir v. PP [2007] 3 CLJ 281 where the
Federal Court said as follows:

[15] The test of grave and sudden provocation was clearly stated
in the Supreme Court case of Lorensus Tukan v. Public Prosecutor
[1988] 1 CLJ 143; [1988] 1 CLJ (Rep) 162. Seah SCJ in delivering
the judgment of the court said:

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 so provoked as to lose his self-control (see
Nanavati v. State of Maharashtra AIR [1962] SC 605, 530).

In determining what amounts to grave and sudden

provocation the court may take into account the habits,
manners and feelings of the class or community to which the
accused belongs, but not of the particular idiosyncracies of
the accused: Madhavan v. State of Kerala AIR [1966] Ker.
258 (260).

[16] It is also said that the defence of provocation is a dual one:

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the alleged provocative conduct must be such as (i) actually causes
in the accused, and (ii) might cause in a reasonable man, a sudden
and temporary loss of self-control as the result of which he kills
the deceased.

[17] Thus, in order to successfully set up provocation as a

defence for the reduction of the offence of murder to one of
culpable homicide not amounting to murder, it is not enough to
show that the accused was provoked into losing his self-control; it
must be shown that the provocation was grave and sudden and must
have by its gravity and suddenness caused a reasonable man to
lose his self-control and induced him to do the act which caused
the death of the deceased. In determining that question the court
may also consider, along with other factors, the nature of the
retaliation by the accused, having regard to the nature of the
provocation.

(see Ratanlal & Dhirajlal, p 1192; Vijayan v. Public Prosecutor

[1975] 1 LNS 189; [1975] 2 MLJ 8).

19. The Appellant’s version of events was this. On the fateful day,
at about 8 am he had gone to a friend’s house enquiring about a
job. Thereafter he together with one Mading and Aplasin had a
drinking session at the house of Aplasin but denied that he was
drunk. At that house he took a knife and went to another friend’s
house called Amir to eat mangoes. After having his mangoes, he
left for his home but on the way home, he saw that his daughter
was playing at the deceased’s house. There he wanted to take his
daughter home but was stopped by PW10 who then took his
daughter upstairs. As he was about to leave, according to the
Appellant, he was hit by the deceased from behind which led to
a fight between them. It was then that he said he lost control and
started to stab the deceased.

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20. From the above, learned counsel for the Appellant submitted
that there was grave and sudden provocation premised on the
following evidence:

The appellant testified during examination in chief as below:-

“Q491: Apa yang terjadi selepas kamu ditahan oleh Rita ibu
mertua kamu?

A: Saya bertengkar mulut sama Rita, saya cakap “kenapa

kau tahan anak saya ini, ini anak saya, kamu tidak
boleh tahan.” Lepas itu dia bawa lari anak saya pergi
atas rumah. Terus aku diam saja sebab dalam fikiran
ku aku menunggu kehadiran ku di mahkamah syariah.
Terus aku mengucap lagi aku mahu balik sudah. Aku
melangkah 1 kaki, Guanding memukul dari belakang
saya. Disitulah aku bergaduh sama dia.

Q492: Bila kamu sebut bergaduh ini, cuba terangkan apa

yang jadi?

A: Saya bertumbuk dengan dia, sampai saya baring

terguling-guling, saya tidak tahan pukulan dan
menggunakan pisau.

Q494: Cuba kamu terangkan kepada mahkamah apa yang

bikin kamu tidak tahan sampai kamu gunakan pisau
yang kamu gunakan untuk makan manga?

A: Saya sudah marah saya tidak sedar dirt saya guna

pisau itu, saya hantam sama dia.

Q495: Adakah kamu tercedera oleh pukulan Guanding

Masirin pada ketika itu?

A: Tidak ada, sebab saya terbaring berguling-guling luka

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di tangan sebelah kiri.”

21. The evidence of the Appellant must be viewed together with the
evidence of PW3, PW10 and PW5. In our view, the failure by
the Appellant in explaining why he had carried a knife on that
fateful day did not help his version of events of that fateful day.
This fact by any reasonable inference just showed that he did
not have any peaceful intent to prise the custody of his daughter
from the deceased and his family. Further the evidence of PW6,
the pathologist and an independent witness, showed conclusively
that there were no scratch marks on the part of the deceased’s
body except the right forearm which was likely to be defensive
in nature. In our view, the Appellant’s bare allegation was only
that.

22. The learned Judge had in our view subjected the Appellant’s
evidence in the context of the totality of the evidence and had
come to findings which we said were not unreasonable or
perverse in nature. He further had warned himself that the duty
is always on the prosecution to prove its case beyond reasonable
doubt. That being the case, we cannot see any reason why we
should intervene in this appeal.

Conclusion

23. This case was to us quite plain in that there was ample evidence
in terms of eye witnesses and scientific evidence for the trial to
conclude beyond reasonable doubt that the Appellant had
committed the crime of murder. Accordingly, we found that the
conviction to be correct in law and safe.

24. Hence, we dismissed the appeal and affirm the conviction and
sentence of the trial Court.

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Dated: 6 FEBRUARY 2018

(DAVID WONG DAK WAH)

Judge
Court of Appeal Malaysia

Counsel:

For the appellant - Sharatha Masyorah John Ridwan Lincon; M/s

Lincon & Co

For the respondent - TPR Muhammad Azmi Mashud; Jabatan

Peguam Negara

Notice: This copy of the Court’s Reasons for Judgment is subject to

formal revision.

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