MALAYSIA

IN THE HIGH COURT OF SABAH AND SARAWAK AT MIRI

[CRIMINAL TRIAL NO. 45-01-2008 (MR)]

BETWEEN

PUBLIC PROSECUTOR ... COMPLAINANT

AND

STEVEN LANI ... ACCUSED

CRIMINAL LAW: Penal Code - s. 304 - Culpable homicide not amounting to

murder - Whether accused had intention to cause death of deceased - Whether
premeditation established by the prosecution - Whether prosecution made out a prima
facie case against accused for an offence under s. 304(a)

CRIMINAL PROCEDURE: Charge - Alteration or amendment of - Finding

that there was no prima facie case made out for offence charged - Whether
High Court Judge had power to alter or amend charge to a less serious
charge which he found to have been prima facie made out

[Accused convicted and sentenced to 11 years imprisonment with effect

from the date of arrest.]

Case(s) referred to:

Lew Check Hin v. PP [1956] MLJ 131 (refd)

Mohd Yusof v. PP [1962] MLJ 311 (refd)

PP v. Ishak [1952] MLJ 151 (refd)

PP v. James Tan [1983] 2 MLJ 173 (refd)

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PP v. Joehari bin Adullah & Anor [1996] 5 MLJ 324 (refd)

PP v. Jorge Enrique Pellon Tellon [1998] 5 MLJ 45 (refd)

PP v. Lee Beng Siang [1992] 2 MLJ 120

PP v. Tan Kim Rang [1962] MLJ 388 (refd)

Legislation referred to:

Criminal Procedure Code, ss. 158, 173, 180(3)

Penal Code, ss. 299, 302, 304

BEFORE THE HONOURABLE JUDGE

YANG ARIF DATO’ ZULKIFLI BIN BAKAR
IN OPEN COURT

GROUNDS OF JUDGMENT

1. The Accused was charged with an offence of murder punishable

under Section 302 of the Penal Code read as follows:-
“B a h a w a k a m u p a d a 1 6 . 1 2 . 2 0 0 6 j a m l e b i h k u r a n g 1 8 1 5 h r s .
bertempat disebuah pondok Long Lenei, Tutoh, dalam Daerah
Baram, dalam negeri Sarawak telah membunuh WILLIE
LABAT (L), (KPT: 870625-52-6539), dan dengan itu kamu
telah melakukan suatu kesalahan yang boleh dihukum di
bawah Seksyen 302 Kanun Keseksaan.”

2. At the end of the prosecution’s case I found that the prosecution

had not made out a prima facie case against the Accused under
Section 302 of the Penal Code. However, from the evidence
adduce d I am satisfied that the prosecution had made out a prima
facie case against the Accused for an offence under Section 304(a)

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 of the Penal Code and I therefore amended the charge reads as
follows:-

“That you on 16.12.2006 at about 6.15 p.m. at a rest hut at

Long Lenei Tutoh, in the District of Baram, in the state of
Sarawak committed culpable homicide not amounting to
murder by causing the death of one Willie Labat with the
intention of causing such bodily injury as is likely to cause
death and that you have thereby committee an offence
punishable under Section 304(a) of the Penal Code.”

3. The amended charge was read and explained to the Accused and
he understood it. I called upon the Accused to enter his defence
under Section 180(3) of the Criminal Procedure Code (CPC). The 3
alternatives were explained to the Accused and the Accused
understood his rights and the consequences in making choice from
the 3 alternatives. After consulting the counsel representing him,
the Accused elected to remain silent. I then proceeded to record
the finding of guilty against the Accused on the amended charge.
After hearing the mitigations of the Accused and submissions by
the DPP, I convicted the Accused and sentenced him to 11 years
imprisonment with effect from the date of arrest.

4. The Public Prosecutor appealed against my decision in amending

the original charge under Section 302 of the Penal Code to the
charge under Section 304(a) of the Penal Code in which I
sentenced the Accused to 11 years imprisonment to take effect
from the date of arrest.

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5. In respect of the amendment or alteration of the charge, I am fully
aware of the provision of Section 180 of Criminal Procedure Code
where it is silent in respect of the power of the High Court to make
alteration to the charge framed by the prosecution compared to the
provision for summary trials under Section 173 of the same Code.

6. For ease of reference I quote below the relevant provisions of the law
(CPC) in respect of the procedures at the conclusion of the case
for the prosecution in summary trial and trial before the High
Court which are related to the issue at hands:-
“Section 173(f),
(i ) Wh e n t h e c a s e f o r t h e p r os e c u t i o n i s c o n c l u d e d t h e C o u r t
shall consider whether the prosecution has made out a
prima facie case against the accused.
(ii) If the Court finds that the prosecution has not made out a
prima facie case against the accused, the Court shall
record an order of acquittal.
Section 173(h),
(i) If the Court finds that a prima facie case has been made
out against the accused on the offence charged, the Court
shall call upon the accused to enter on his defence.
(ii) If the Court finds that a prima facie has been made out
against the accused on an offence other than the offence
charged which the Court is competent to try and which in
the opinion of the Court it ought to try, the Court shall
amend the charge.”

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 Section 180,
(1) When the case for the prosecution is concluded, the Court
shall consider whether the prosecution has made out a
prima facie case against the accused.
(2) If the Court finds that the prosecution has not made out a
prima facie case against the accused, the Court shall
record an order of acquittal
(3) If the Court finds that a prima facie case had been
made out against the accused on the offence charged
the Court shall call upon the accused to enter his
defence.”

7. Comparing the provisions of the law quoted above, the obvious

difference between the procedures in the summary trials and trial
before the High Court is that there is no express provision under
Section 180, CPC imposing a duty on the High Court to amend or
alter the charge preferred against the Accused who stood trial
before hi m whilst there is such an obligation imposed on the
Subordinate Courts as can be clearly seen under Section 173(h)(ii)
of the Code, since the words used by the law is, “... the Court
shall amend the charge.”

8. In the circumstances, where the High Court Judge finds that there
is no prima facie case made out for the offence charged, does it
mean the High Court Judge does not have the power to alter or
amend the charge when there are ample evidence adduced before
him that there is another offence has been prima facie made out?

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 If the answer to the question is in the affirmative, it would mean
that the High Court Judge only needs to do one thing that is to
record an order of acquittal on the offence charged as provided for
under Section 180(2) of the Code.

9. To my mind such interpretation will lead to absurdity as I do not

think that is the intention of the law, considering the functions,
duties and obligations of the Courts are to ensure that justice is
seen to be done. Justice must be seen to be done not only to the
Accused but also to the prosecution who is the guardian of the
public interests.

10. Further to that, the High Court Judge also has the power to make
alteration or amendment to the charge as provided under Section
158(1) of the Criminal Procedure Code where it provides;
“S. 158(1) Any Court may alter or add to any charge at
a n y t i m e b e f o r e j u d g e m e n t i s pronounced.”

This provision is general in its nature and applies to “any Court”

which to my mind gives power to both the High Court and
Subordinate Courts to amend the charge at any time before
judgement is pronounced and the most suitable time is at the close of
the prosecution’s case, (see cases PP v. Lee Beng Siang [1992] 2
MLJ 120; PP v. Ishak [1952] MLJ 151; Mohd Yusof v. PP [1962]
MLJ 311; PP v. Joehari bin Adullah & Anor [1996] 5 MLJ 324; PP

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 v. Tan Kim Rang [1962] MLJ 388; Lew Check Hin v. PP [1956]
MLJ 131). The Courts in exercising such power may amend the
charge with the offence which is disclosed by the evidence and by
doing so it must not cause prejudice or unfairness to both the
parties, (see also PP v. James Tan [1983] 2 MLJ 173) .

11. The provisions of Section 173(h)(ii) and S. 158(1) of the Criminal

Procedure Code are not contradictory. They can sit alongside each
other. The Courts in exercising the power to amend or alter the
charge as originally framed cannot be said to be in usurpation of
the prosecutorial power to frame a charge against the Accused. I
s h a r e the opinion of Faiza Tamby Chik, J in PP v. Jorge Enrique
Pellon Tellon [1998] 5 MLJ 45 and particularly attracted to his
judgement at page 48 where he said:
“The deputy public prosecutor cited me Article 145(3) of the
Federal Constitution in support of his contention. Let me state
c a t e g o r i c a l l y here that I am in full agreement with the learned
deputy public prosecutor on the power of the Honourable
Attorney General as Public Prosecutor as contained in the
Article aforesaid of the Federal Constitution. Nonetheless, le t
me straight away inform him and announce to all and sundry
that the Court would not even dream of usurping the powers
of the Public Prosecutor. The Public Prosecutor shall have
powers exercisable at his discretion, to institute, conduct or
discontinue any proceeding for an offence based on
investigation but once the case comes to Court the power of
the Public Prosecutor ceases there and immediately the Court
is seized with the jurisdiction to try the case in accordance
with the time-honoured rules of procedure and rule of
evidence.”

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12. After having heard the evidence presented before me and at the
conclusion of the prosecution’s case, I exercised my power under
Section 158(1) of the CPC and amended the original charge framed
by the prosecution to one of a lesser serious charge which I found
to have been prima facie made out. I subsequently complied
with the provisions of S. 158(2) and Section 159 of the CPC before
I convicted the Accused on the offence in the amended charge and
sentenced him for the said offence.

13. I now turn to the evidence of the witnesses at this trial. At the end
of the prosecution’s case I found that the Deceased is one Willie
Labat as stated in the charge since his body was identified by the
Deceased’s father (PW10) to the Pathologist (PW3) who conducted
the post mortem on the Deceased’s body on 21.12.2006 at about
3.00 p.m. at Marudi Hospital.

14. The Pathologist (PW3) testified that the Deceased suffered six
injuries on his body as he stated in his Autopsy Report exhibit
P26. Injury no. 1 is the fatal injury ie, large laceration at left
armpit, measuring 15 cm long, 6 cm wide and 4 cm deep cutting
major vessels of left upper limbs. This injury can be seen from
photographs no. 11 and no. 12 of exhibit P4. This fatal injury that
caused the death of the Deceased ie, Hypovolemic shock, due to
excessive bleeding of wound at left armpit cutting major vessels.
PW3 further said in his evidence that the likely weapon causing

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 this fatal injury is sharp object such as broken metal or glass or
bottle. The Deceased, according to him, could be saved if brought
to Hospital within one hour with surgeon immediately. As for
other injuries, PW3 said injury no. 3 can be considered the
probable defensive injury and could be sustained by the Deceased
while he took a swing at his opponent. Injury no. 2 could be due
to the Deceased falling onto sharp object and the abrasions in
injuries no. 3, 4, 5 and 6 could be due to struggle. PW3 further
testified as for injury no. 1 (the fatal injury) that before the said
injury could be inflicted the Deceased have to lift his arm exposing
the left armpit which is consistent of the Deceased in the course of
attacking someone, has by himself lifted his armpit and gave
opportunity to his opponent to take a jab at the ar mpit with a
sharp object. Under the armpit runs the major blood vessels and
only medically trained people are more likely to know this fact.

15. So much of the theory and opinion of the expert, I now turn to the
evidence of the witnesses in respect of the incident on the fated
day.

16. On 16.12.2006 at about 2.00 p.m. Senin bin Muda (PW8) started
to drink alcoholic drink at a hut beside the river in his village not
far from his longhouse. Drinking together with him were Steven
Lani (Accused-identified), theDeceased (identified from
photograph), John Palau (PW9) and one Mambang Oyok (identified

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 - offered by prosecution to the defence). The Accused is the second
cousin of PW8 whilst Mambang is his father in law and PW9 is his
first cousin. The Deceased was PWS’s nephew. They are all related
and living in the same longhouse. The alcoholic drinks that PW8 and
the other four were consuming was from a glass bottle reddish in
colour brand “Cap Penghulu” which they mixed with coconut water
before it could be consumed or drink it side by side. A parang and a
knife were used to cut opened the young coconut to obtain its water
to be mixed with the alcoholic drinks or to drink them one after
another.

17. At about 6.00 p.m. whilst they were all having conversations and
cracking jokes, enjoying their drinks and eating barbecued fish at
t he hut , P W8 saw t he Accused br oke an unopened bot t l e of t he
“Cap P enghul u” dr i nk and hol di ng t he neck of t he br oken bot t l e
wi t h hi s ri ght hand j abbed t he Deceased on hi s cheek usi ng t he
sai d br oken bott l e. He sai d t he Deceased r an away fr o m t her e
chased by t he Accused who t hen st abbed t he Deceased on t he
hand and l at er at t he ar mpi t . Deceased was bl eedi ng heavi ly
and ran back home to the longhouse. According to PW8, the
Accused followed the Deceased to the longhouse. PW8 together
with PW9 and Ma mb ang al so went back t o t he l onghouse.

18. PW8 said he did not know why the Accused suddenly breaks the
bottle as there was no quarrel or provocation between the

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 Deceased and the Accused. PW8 also said he saw after the
Accused jabbed the Deceased on the cheek using the broken
bottle, he i mmediately jabbed the hand and the armpit of the
Deceased at the place they were having their drinks although
earlier he said the Deceased ran away from the hut followed by the
Accused before the second and third attacks took place.

19. According to PW8 during the incident happened the Accused did not
utter a single word, the Deceased did not shout, cry or scream.
Listening to this evidence I would imagine myself as if I was
watching a silent movie like those days where we have the movie of
“Charlie Chaplin”. Even that have some musics or sounds
intermittently. The evidence of this witness is so incredible that
defies logic for in the normal circumstances there must have been
shouts or cries or utterance of some words from the Accused or
Deceased or both. However I did not reject the evidence of PW8 in
toto because his evidence in other aspects are consistent with other
evidence before this Court for example the photographs, the broken
bottle, the evidence of PW9 (John Palau) etc. Further to that as stated
in evidence, the alcoholic drink that they had consumed on that fated
day was a “very very strong alcoholic drink” and PW8 admitted that,
at that point in time of the incident between the Accused and the
Deceased, he was “very drunk already”.

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20. John Palau (PW9) confirmed in his evidence that he was drinking
the “Cap Penghulu” alcoholic drinks together with coconut water at
the rest hut together with PW8, Accused, Deceased and Mambang.
On that fated day, he testified that they had consumed five bottles
of the “Cap Penghulu” alcoholic drinks. At that time all five of
them were having conversations, joking with each other and eating
barbecued fish. He saw the Accused spoke to the Deceased and
they too joke with each other and did not raise voice or provoke
each other and did not quarrel with each other. In fact the
Accused and the Deceased were very nice with each other and PW9
did not know why the Accused suddenly broke a bottle of “Cap
Penghulu” drink and jabbed the Deceased with that broken bottle.
He clai med that he was not drunk at that point in ti me. He saw
the incident but did not say or do anything as he was scared and
panic and just stayed there at the hut where they were having
their drinking sessions. PW9 was shivering and afraid upon seeing
the incident. The evidence of PW9 is not consistent in respect of
the broken bottle that was used by the Accused to inflict the
injuries to the Deceased because he said in his evidence that after
the jabbing the Accused brought the broken bottle to the
longhouse because he also identified the broken bottle from the
photographs exhibit P4, photograph no. 3 and no. 4 which were
t a k e n a t t h e h u t w h e r e t h e i n c i d e n t o c c u r r e d . P W 9 a l s o a gr e e d

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 that the broken bottle was found at the hut or around and “very
very near” to the hut where they had their drinks earlier. PW9
testified that the “Cap Penghulu” drinks is very strong alcoholic
drink but on that day he was not drunk because the four bottles of
drink he had shared with the others were not enough to make him
drunk. Therefore his perception of how the incident happened
was accurate. The Accused and the Deceased were very good
friends and were helpful to each other towards the community they
lived in so said PW9. Immediately before the breaking of the bottle
by the Accused, PW9 said there was no jostling or pushing between
the Accused and the Deceased and he did not hear the Deceased
say anything to the Accused or vice versa .

21. PW10 (Labat Muda), the father of the Deceased, testified that at
the material time he was having a bath at the river opposite the
longhouse which is half a chain or 40 feet away from the hut where
the incident occurred. At that point in ti me PW10 was called by
his wife informing him that the Deceased was injured and the
Deceased was at their longhouse. PW10 returned to this room
(Bilik) at the longhouse and saw the Deceased with injuries at the
corridor (Ruai) outside his room (Bilik). PW10 spoke to the
Deceased. The Deceased when asked as to who had injured him,
replied “Steven” (known to PW10 as the Accused). PW10 then went
to timber camp nearby his longhouse to get a boat and outboard

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 engine to send the Deceased to Marudi Hospital. As PW10 was
leaving the longhouse to go to the timber camp the Accused chased
him and shouted at him to wait first and waved his hand for PW10
to stop until he reached a place near the timber camp. PW10 did
not stop and the Accused turned back. PW10 managed to get a
boat with an outboard engine and brought it back to the
longhouse. PW10 with the help of his wife then carried the
Deceased to the boat but half way to the boat the Deceased passed
away and PW10 decided to bring the Deceased back to his room
(Bilik) at the longhouse. At about 8.00 p.m. that evening PW10
made a phone call to the police about the incident. The next
morning the police came and brought the Deceased’s body to
Marudi Hospital followed by PW10. The Accused was also brought
by the police at the same time to Marudi police station. PW10
testified that the Accused is his nephew and he has no problem
with him before and after the incident.

22. The investigating officer (I.O.) of this case Inspector Sumarno bin
Lamundi (PW12) together with a police party went to the place of
incident on 19.12.2006 (the next day) using a police boat at about
9.40 a.m. and took him about 2 1 / 2 hours to arrive at the crime
scene. At the crime scene he carried out his investigations. The
I.O. instructed some photographs to be taken, collected the broken
glass bottle and other exhibits and drew sketch plan of the scene.

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 He left the scene of the incident at about 5.00 p.m. bringing along
with him the Deceased’s body to Marudi Hospital for post mortem
to be conducted to determine the cause of death. At the longhouse
that day at about 11.40 a.m. the arrest was made on the Accused
and he observed the Accused has an injury on the left palm of his
hand. He brought the Accused along to Marudi police station and
placed him in the police lockup. On 19.12.2006 he referred the
Accused to the hospital for examination after which he placed the
Accused in the police lockup. He obtained the result of the
medical examination of the Accused subsequently. The
investigating officer (PW12) also sent all the exhibits he obtained in
the course of his investigations to the Chemistry Department for
analysis. He also obtained the autopsy report of the post mortem
conducted on the Deceased’s body. Upon completion of his
investigations, PW10 recommended the Accused to be charged for
an offence of murder of the Deceased under Section 302 of the
Penal Code.

23. Next witness with significant evidence is PW7 (Nimrud ak Nyarang )

who was a Medical Assistant attached to Marudi Hospital. He
testified that on 19.12.2006 at 3.30 p.m. the Accused was referred
to him at Emergency Unit Hospital Marudi. PW7 conducted
physical examination on the Accused and found that there was an
injury on the left palm of his hand. He reduced his findings as in

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 exhibit P32 which stated that the injury was 1x2 cm dept and
length of the injury.

24. The other significant evidence is of PW11 (Ling Ung Hie) who was a
chemist (before she resigns). PW11 had conducted analysis on the
urine sample of the Deceased and found to contain “195
milligrams of ethyl alcohol per 100 milliliters of urine”. As for the
urine sample of the Accused, PW11 did not detect alcohol or any
other common poisons/drugs.

25. In the course of this trial, I found that the Defence did not
seriously challenge the evidence of the prosecution in respect of
the fact that the Accused did cause all the injuries on the
Deceased but the Defence in course of cross- examinations had
contended that there was no intention of the Accused to cause the
death of the Deceased as the incident happened so sudden and
without premeditation.

26. After careful consideration of the evidence presented before me, I

found as a fact that the Accused and no one else had inflicted all
the injuries sustained by the Deceased without premeditation as it
happened at the spur of the moment. There was no preparation on
the part of the Accused established by the prosecution in this case.
A culpable homicide had been committed by the Accused on the
Deceased as defined under s. 299 of the Penal Code ie, causing the

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 death by doing an act with the knowledge that he is likely by such
act to cause death. This conclusion can be made from the nature
of injuries sustained by the Deceased and nature of the weapon
used to inflict the injuries. There is no intention to kill the
Deceased by the Accused can be drawn or inferred from the
incident. From the circumstantial evidence also there is no
intention to kill can be drawn or inferred. There was a parang
and a knife that were used to cut open the coconut to obtain its
water to be consumed with the alcoholic drink but was not use by
the Accused as the weapon to inflict the injuries on the Deceased.
There was no previous misunderstanding or ill feelings between the
Accused and the Deceased before the incident. In fact they were
relatives, very good friend and lived in the same longhouse. The
Accused not being a medically trained person could not have
known that there are major blood vessels running through the
armpit of the Deceased or any other human being for that matter.
The urine sample of the Accused was taken a few days after the
incident and that was why the result was negative of alcohol.

27. To my mind all these factors do not and could not constitute
intention to cause death or intention to cause bodily injury
knowing it likely to cause death or intention to cause bodily injury
intended to be inflicted sufficient in the ordinary course of nature
to cause death or the Accused knew that his act was so

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 i mminently dangerous that will cause death. In fact it all
happened at a spur of the moment whilst both the Accused and
Deceased were having hard liquor and were drunk.

28. For the forgoing reasons I found that the Accused had committed
culpable homicide not amounting to murder under Section
304(a) of the Penal Code which carries imprisonment term which
may extend to 20 years and shall also be liable to fine.

29. Considering the facts that the offence commi tted was under
section 304(a) of the Penal Code and not under s. 304(b) of the
same Code (which carries imprisonment term which may extend to
10 years or with fine or both) coupled with the mitigations of the
Accused, the circumstances as to how this incident had
happened/how the offence was committed, the Accused at the age
of 29 years old after the incident now being autracised from his
community at the longhouse, a life of another human being is loss
in this incident and most importantly the public interest which
definitely do not condone an act of killing another human being
without lawful justification; I consider 11 years imprisonment
w.e.f. date of arrest ie, 17.12.2006 is adequate in the circumstances
of this case.

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Dated: 27 MAY 2010.

Date of hearing : 16 - 19.3.2010, 24.3.2010, 24 - 27.5.2010

(ZULKIFLI BAKAR)
Judge
High Court Miri

For Public Prosecutor - Robert Pasang Alain; Deputy Public

Prosecutor
Jabatan Peguam Negara Malaysia,
Tingkat 8, Bangunan Sultan Iskandar,
Jalan Simpang 3,
93300, Kuching.

For the accused - M/s Ranbir Sangha & Co

No. 71, Jalan Bendahara,
98000 Miri.

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