[2006] 2 CLJ Bala Matik v.

PP 229

A BALA MATIK

v.

PP
B COURT OF APPEAL, PUTRAJAYA
MOKHTAR SIDIN JCA
JAMES FOONG JCA
ZULKEFLI MAKINUDIN JCA
[CRIMINAL APPEAL NO: Q-05-43-98]
C 9 FEBRUARY 2006

CRIMINAL PROCEDURE: Appeal - Conviction and sentence, against

- Whether there was grave and sudden provocation - Defence of bare
denial - Penal Code, Exception 1 to s. 300
D
EVIDENCE: Information leading to fact discovered - Admissibility of
statement - Whether prejudicial effect outweighed probative value -
Whether information to be rejected

On 10 April 1997 at around 10pm, Supriyano Slamat (PW19),

E Ahmad Nuryani (deceased) (“AN”) and Joko Pumomo (deceased)
(“JP”) were suddenly attacked by a man with a parang. PW19
later identified the man as the appellant. PW19 did not see who
attacked JP but PW11 and PW12 testified that JP ran for help
after he was attacked and injured at the material time. From an
F interview conducted on 15 May 1997 with chief inspector Peter
Umbuas (PW18), the appellant told him that on that night he hit
three Indonesians with a parang and after the incident, he had
hidden the parang beside a tree not far from the scene of the
incident. A police party went to the scene of the incident and
G found the parang hidden where the appellant had testified it to be,
and the said parang was recovered. Upon showing the parang to
the appellant, he admitted that he had used it to slash the
Indonesians. Vide another interview conducted on 16 May 1997,
the appellant still admitted to attacking the Indonesians. During
H their investigation, the police also recovered hair from the grasp of
AN and near the body of AN and upon testing the chemist gave
evidence that it was similar to the hair sample taken from the
appellant. On 15 May 1997, Inspector Dzulkarnain Abdul Karim
(PW6) recorded a cautioned statement from the appellant under
I s. 113 Criminal Procedure Code wherein the appellant stated that
he had slashed three Javanese sometime after 25 February 1997
because he was provoked by them and after consuming a bottle
230 Current Law Journal [2006] 2 CLJ

of tuak. The post mortem conducted on both the deceased A

concluded that the cause of death of JP was due to an incised
wound of the right neck with severe bleeding and with regards to
AN was due to multiple incised wounds of the neck and head
with severe bleeding and that the instrument used to cause the
death aforesaid could have been a knife. At the conclusion of the B
trial, the appellant was convicted on both counts of murder
against AN and JP respectively and was sentenced to death by
hanging. The appellant now appeals against the conviction and
sentence of the High Court.
C
The issues that rose for determination vide this appeal were: (1)
whether the trial judge adequately considered and adequately
attached the necessary weight to the exculpatory parts of the
appellant’s cautioned statement and whether the learned judge
had erred in law in holding that the appellant had not discharged D
on a balance of probabilities the burden of proving that there was
a grave and sudden provocation under exception 1 to s. 300 of
the Penal Code (“the Code”); and (2) whether the information
given by the appellant leading to the discovery of the parang
should have been ruled inadmissible because its prejudicial effect E
outweighed its probative value.

Held (appellant’s appeal dismissed with costs and affirming

the sentence and conviction imposed by the learned judge)
Per Zulkefli Makinudin JCA:
F
(1) It is abundantly clear that the appellant’s evidence prevailed
on the basis that he was not involved in the killing of JP and
AN respectively and in view of the said denial, the view that
the defence of grave and sudden provocation could never
subsist as an issue at all. It is plain and obvious that the G
appellant’s evidence is one of mere denial only. (para 10)
(2) The learned trial judge had not only evaluated the defence of
grave and sudden provocation under Exception 1 to s. 300 of
the Code but also the defence of sudden fight and right of H
private defence correctly. The threshold that the appellant
must satisfy the court in the present case is that on a balance
of probabilities, the injuries he inflicted on the two deceased
persons were as a result of grave and sudden provocation and
not merely to cast a reasonable doubt on the prosecution I
 [2006] 2 CLJ Bala Matik v. PP 231

A case. In addition to the retraction of the cautioned statement

by the appellant, there was clearly no misdirection on the part
of the learned trial judge in concluding that the appellant had
failed to discharge on a balance of probabilities that he came
within any of the special exceptions in s. 300 of the Code.
B (paras 11 & 15 )

(3) Having considered the totality of the evidence both for the
prosecution and the defence, the finding of facts by the
learned judge in rejecting the exculpatory parts of the
C cautioned statement was clearly supported by the evidence
adduced in the whole trial. (para 17)

(4) Upon the positive evidence of PW19 who affirmatively testified

that the three of them were attacked by the appellant
suddenly on one side and the mere denials of the appellant
D
vide his oral testimony on the other side, the learned judge
was obviously correct to reject the defence of grave and
sudden provocation. (para 20)

(5) The information given by the appellant which led to the

E discovery of the parang was given by the appellant without
any compulsion and there was no objection by appellant’s
counsel as to its admissibility but more importantly there was
no evidence of any involuntariness exerted on the appellant to
secure the said information. In the present case, there was no
F material before the trial judge to warrant the rejection of the
information leading to the discovery of the parang. (para 23)

(6) The appellant’s conduct in pointing to the parang was never

relied on by the trial judge in deciding that it corroborated the
G cautioned statement. It is the discovery of the parang which
corroborated the cautioned statement and the law clearly
permits such evidence to be admitted as conduct under s. 8
of the Evidence Act 1950, Prakash Chand v. State AIR [1979]
Supreme Court 400. (para 26)
H
Bahasa Malaysia translation of headnotes

Pada 10 April 1997 lebih kurang pada pukul 10 malam, Supriyano

Slamat (PW19), Ahmad Nuryani (simati) (“AN”) and Joko
Pumomo (simati) (“JP”) telah diserang secara tiba-tiba oleh seorang
I lelaki dengan sebilah parang. PW19 kemudiannya telah
mengenalpasti lelaki tersebut sebagai perayu. PW19 tidak melihat
siapa yang menyerang JP tetapi PW11 dan PW12 telah memberi
232 Current Law Journal [2006] 2 CLJ

keterangan bahawa JP telah lari meminta pertolongan setelah A

diserang and dicedera pada masa yang material. Daripada suatu
soal siasat/temuduga yang dijalankan pada 15 Mei 1997 dengan
ketua inspector Peter Umbuas (PW18), perayu telah memberitahu
PW18 bahawa pada malam tersebut dia telah memukul tiga orang
Indonesia dengan sebilah parang dan selepas melakukan B
sedemikian, perayu telah menyorok parang tersebut bersebelahan
sebuah pokok tidak jauh daripada tempat kejadian. Sekumpulan
polis telah pergi ke tempat kejadian dan telah menjumpai parang
tersebut di mana perayu menyatakan ianya berada dan telah
mengumpulkannya sebagai bukti. Perayu apabila ditunjukkan parang C
tersebut mengaku menggunakannya untuk menyerang orang-orang
Indonesia tersebut. Melalui suatu lagi temuduga bertarikh 16 Mei
1997, perayu telah mengaku menyerang orang-orang Indonesia.
Sewaktu penyiasatan, pihak polis juga telah menjumpai rambut
daripada genggaman AN dan berdekatan mayat AN dan setelah D
melakukan ujian yang relevan, pihak ahli kimia telah memberi
keterangan bahawa ia sama seperti sampel rambut yang diambil
daripada perayu. Pada 15 Mei 1997, Inspector Dzulkarnain Abdul
Karim (PW6) telah merekodkan pernyataan beramaran perayu
dibawah s. 113 Kanun Acara Jenayah dimana perayu telah E
menyatakan bahawa dia telah memarang tiga orang Javanese pada
atau sekitaran 25 Februari 1997 kerana dia telah diprovokasi dan
setelah meminum sebotol arak tuak. Bedah siasat yang dijalankan
ke atas kedua orang simati tersebut telah menyimpulkan bahawa
kausa kematian JP adalah disebabkan suatu kecederaan insisi di F
sebelah kanan leher dengan pendarahan yang berlebihan dan
berhubung dengan AN adalah disebabkan insisi berganda di
bahagian leher dan kepala dengan pendarahan yang berlebihan dan
bahawa alat yang digunakan untuk menyebabkan kematian
sedemikian mungkin sebilah pisau. Pada pengakhiran pendengaran, G
perayu telah disabitkan bersalah atas dua tuduhan membunuh AN
dan JP masing-masing dan telah dihukum gantung sampai mati.
Perayu kini merayu terhadap kesabitan kesalahan dan hukuman
yang diputuskan oleh Mahkamah Tinggi.
H
Isu-isu yang dibangkitkan melalui rayuan ini adalah: (1) Sama ada
yang arif hakim telah mempertimbangkan dengan sewajarnya dan
memberikan kepentingan yang mencukupi kepada kenyataan yang
melepaskan dalam pernyataan beramaran pihak perayu dan sama
ada yang arif hakim telah melakukan kesilapan undang-undang I
dalam memutuskan bahawa perayu gagal untuk membuktikan atas
 [2006] 2 CLJ Bala Matik v. PP 233

A imbangan kebarangkalian wujudnya bangkitan marah besar dan

mengejut dibawah pengecualian 1 ke s. 300 Kanun Keseksaan
(“Kanun”); dan (2) Sama ada maklumat yang diberikan oleh
perayu yang telah membawa kepada penemuan parang sepatutnya
diputuskan sebagai tidak dapat diterima kerana kesan prejudisnya
B jauh lebih tinggi daripada kesan probatifnya.

Diputuskan (rayuan perayu ditolak dengan kos dan

hukuman dan kesabitan kesalahan yang arif hakim dikekalkan)
Oleh Zulkefli Makinudin HMR:
C
(1) Adalah jelas bahawa keterangan perayu adalah berdasarkan
alasan bahawa perayu tidak terlibat di dalam pembunuhan JP
dan AN masing-masing dan bersandarkan penafian tersebut,
pembelaan bangkitan marah besar dan mengejut tidak wujud
sebagai suatu isu. Ia adalah jelas dan nyata bahawa keterangan
D
perayu adalah berasaskan suatu penafian semata-mata.

(2) Yang arif hakim bukan sahaja telah menilai pembelaan

bangkitan marah besar dan mengejut di bawah pengecualian 1
ke s. 300 Kanun malah juga pembelaan pergaduhan tiba-tiba
E dan hak kepada pembelaan persendirian secara betul. Had yang
perlu dipenuhi oleh perayu dalam kes ini adalah bahawa atas
imbangan kebarangkalian, kecederaan yang dikenakan keatas
kedua orang simati tersebut adalah disebabkan bangkitan
marah besar dan mengejut dan bukan hanya untuk
F mewujudkan keraguan yang munasabah ke atas kes pendakwa
raya. Tambahan kepada penarikan balik pernyataan beramaran
oleh perayu, kami mendapati secara nyata bahawa tiada salah
arah di pihak yang arif hakim dalam memutuskan perayu gagal
untuk menunjukkan atas imbangan kebarangkalian bahawa dia
G jatuh dibawah mana-mana tajuk pengecualian dalam s. 300
Kanun.
(3) Setelah menilai keseluruhan keterangan pihak pendakwa raya
dan pembela, kami berpendapat bahawa penemuan fakta oleh
H yang arif hakim dalam menolak kenyataan yang melepaskan
pernyataan beramaran dengan jelas disokong oleh keterangan
yang dibentangkan di dalam pendengaran penuh.

(4) Atas keterangan positif PW19 yang telah memberi keterangan

I
bahawa mereka bertiga telah diserang oleh perayu secara tiba-
tiba di satu pihak dan penafian semata-mata pihak perayu
234 Current Law Journal [2006] 2 CLJ

melalui keterangan oralnya di pihak yang lain, yang arif hakim A

dengan jelas betul untuk menolak pembelaan atas dasar
bangkitan marah besar dan mengejut.

(5) Maklumat yang diberikan oleh perayu yang telah menyebabkan

penemuan parang tersebut telah diberikan tanpa apa-apa B
paksaan dikenakan ke atas perayu dan peguam perayu tidak
membantah kepada penerimaan masuknya sebagai keterangan
tetapi yang lebih penting adalah ketiadaan keengganan di pihak
perayu untuk memberi maklumat tersebut. Dalam kes di
hadapan kita, tiada bahan dihadapan yang arif hakim untuk C
mewajarkan penolakan maklumat yang telah membawa kepada
penemuan parang tersebut.

(6) Dalam memutuskan bahawa parang tersebut menyokong

pernyataan beramaran perayu, yang arif hakim tidak bergantung
D
kepada kelakuan perayu yang menunjuk kepada parang
tersebut. Malahan penemuan parang yang telah menyokong
pernyataan beramaran dan undang-undang secara nyata
membenarkan bukti untuk diterima masuk sebagai perlakuan di
bawah s. 8 Akta Keterangan 1950, Prakash Chand v. State AIR
E
[1979] Supreme Court 400.
Case(s) referred to:
Che Omar Mohd Akhir v. PP [19991 2 CLJ 780 CA (refd)
Francis Antonysamy v. PP [20051 2 CLJ 481 FC (refd)
Ikau Mail v. PP [1973] 2 MLJ 153 (refd) F
Juraimi Husin v. PP [1998] 2 CLJ 383 CA (refd)
Hasamuddin Talena v. PP [2002] 2 CLJ 504 CA (refd)
Lim Yow Choon v. PP [1972] 1 MLJ 205 (refd)
Mohamad Radhi Yaakob [1991] 3 CLJ 2073; [1991] 1 CLJ (Rep) 311 SC
(refd)
Muhammed Hassan v. PP [1998] 2 CLJ 170 FC (refd) G
Ng Eng Kooi v. PP [1970] 1 MLJ 267 (refd)
Prakash Chand v. State AIR [1979] Supreme Court 400 (refd)
PP v. Hashim Hanafi [2002] 4 MLJ 176 (refd)
PP v. Yuvaraj [1969] 2 MLJ 89 (refd)
Saw Thean Teik v. Regina [1953] 19 MLJ 124 (refd) H
Vijayan v. PP [1975] 2 MLJ 8 (refd)

Legislation referred to:

Evidence Act 1950, ss. 8, 27, 105
Penal Code, ss. 300, 302
I
 [2006] 2 CLJ Bala Matik v. PP 235

A For the appellant - Lau Hui Kui; M/s HK Lau & Co

For the respondent - Wong Chiang Kiat DPP

[Appeal from High Court, Sibu; Criminal Trial No: 20-47-2-97]

Reported by Sharmini Pillai

B

JUDGMENT

Zulkefli Makinudin JCA:

C
Introduction

[1] The appellant, Bala Anak Matik was charged on two counts
of murder as follows:
D First Charge

“That you, on or about 10 April 1997 at about 10.30pm at

Sungai Maaw Road, Sibu in the State of Sarawak, committed
murder by causing the death of Joko Purnomo and that you
E thereby committed an offence punishable under s. 302 of the
Penal Code.”

Second Charge

“That you, on or about 10 April 1997 at about 10.30pm at

F
Sungai Maaw Road, Sibu in the State of Sarawak, committed
murder by causing the death of Ahmad Nuryani and that you
thereby committed an offence punishable under s. 302 of the
Penal Code.”
G [2] At the conclusion of the trial, the appellant was convicted
by the High Court in Sibu on both the above charges and was
sentenced to death by hanging. The appellant now appeals against
the conviction and sentence of the High Court.

H Facts Of The Case

[3] The relevant facts of the case as gathered from the evidence
of the prosecution witnesses at the stage of the prosecution case
are as follows:
I
236 Current Law Journal [2006] 2 CLJ

On 10 April 1997 at about 10pm, Supriyano bin Slamat (PW19), A

Ahmad Nuryani (deceased) and Joko Purnomo (deceased) were on
their way back to their living quarters at Fong Syn Shipyard Sibu
from a Quranic class at the other branch of Fong Syn Shipyard
about two kilometres away. At about 1/2 kilometre away they
were suddenly attacked by a man with a parang. The evidence of B
PW19 is that he was walking behind Joko Purnomo and Ahmad
Nuryani when suddenly the man hit his head with a parang. PW19
then turned back and saw the man whom he later identified as
the appellant. He then ran away and was chased by the appellant.
The appellant suddenly retreated and PW19 followed him. PW19 C
then saw the appellant attacked Ahmad Nuryani who was 10
metres away from him. He did not see who hit Joko Purnomo.
Joko Purnomo ran off after Ahmad Nuryani was hit and PW19
only knew what happened to Joko Purnomo when he arrived at
Fong Syn Shipyard. Although PW19 did not see who attacked D
Joko Purnomo, the evidence of PW11 and PW12 is that Joko
Purnomo ran for help after he was attacked and was injured at
the material time. Chief inspector Peter ak Umbuas (PW18)
testified that on 15 May 1997 he interviewed the appellant at the
Police Headquarters. From the interview, the appellant told him E
that on that night he hit three Indonesians with a parang. After
the incident he hid the parang beside a tree not far from the scene
of the incident. Another interview was held on 16 May 1997 and
the appellant still admitted attacking the Indonesians. A police
party led by PW18 went to the scene of incident where the F
accused pointed out where he had hidden the parang (P23C). The
parang was hidden beside a tree in that area and was recovered
by the police. PW18 showed the parang to the appellant and the
appellant admitted that that was the parang he used to slash
those Indonesians. The police in their investigation also recovered G
hairs from the grasp of the right hand of Ahmad Nuryani (P17C)
and near the body of Ahmad Nuryani (P18C, P19C and P20C).
The hair sample taken from the appellant was marked P21C. The
chemist (PW2) testified that the head hairs of P17C, P18C, P19C
and P20C were similar to P21C. On 15 May 1997 at about 5pm H
Inspector Dzulkarnain Abdul Karim (PW6) recorded a cautioned
statement (P28) from the appellant under s. 113 CPC. In the
cautioned statement the appellant stated that sometime after 25
February 1997 he slashed 3 Javanese. He alone attacked them.
The reason he attacked them is that he was provoked by what I
was said by the Javanese. They told him that they were not afraid
 [2006] 2 CLJ Bala Matik v. PP 237

A of Iban and the people of Sarawak and that they wanted to drink
the blood of Sarawak people. This challenge started off the fight.
Earlier before the fight the appellant claimed he had bought and
consumed a bottle of tuak. According to Dr. Myint Soe (PW4)
who performed the post-mortem the cause of death of the
B deceased, Joko Purnomo is due to incised wound of right neck
with severe bleeding. With regard to the deceased, Ahmad
Nuryani the cause of death is due to multiple incised wounds of
neck and head with severe bleeding. The injuries suffered by both
the deceased would result in death and as to the instrument used
C PW4 stated that it could be a sharp object of considerable length
like a knife.

[4] The learned trial judge at the close of the case for the
prosecution ruled that the prosecution had made out a prima facie
D case against the appellant in respect of the first charge and the
second charge and called upon the appellant to enter his defence
on both the charges.

The Defence
E [5] The appellant elected to give sworn evidence and in his
evidence had stated inter alia the following relevant facts:
On 10 April 1997 at about 10pm he was sleeping at his quarters.
He did not go anywhere and did not meet anyone near his work
F site or meet any Indonesian. He was not aware that on that night
some Indonesians were injured in a fight. He was also not engaged
in any fight at the material time. The appellant also denied that
he consumed any alcohol that night. The appellant testified that
he was arrested in the middle of May 1997. He did not know
G why he was arrested by the police. In respect of the cautioned
statement (P28) the appellant said that he did not make any
statement to the police and that he signed P28 because he was
asked to by the police. The police did not explain to him the
content of P28. In his cross-examination, the appellant admitted
H that there were many Indonesian workers at his workplace. He
disagreed that he disliked or harboured any animosity towards
them. He did not know that they were paid much higher salary
than him or that his superior prefers the Indonesian workers. In
respect of the parang (P23C), the appellant said that he did not
I keep the parang. He disagreed that he used the parang to cause
injuries to others.
238 Current Law Journal [2006] 2 CLJ

Grounds Of Appeal A

[6] At the hearing of the appeal before us, learned counsel of

the appellant relied on five main grounds of appeal as follows:

(1) That the learned judge did not adequately consider or at all
B
the exculpatory parts of the cautioned statement (P28) of the
appellant.

(2) That the learned judge did not adequately attach the
necessary weight or at all to the exculpatory parts of the
cautioned statement (P28) of the appellant. C

(3) That the learned judge erred in law in holding that the
appellant had not discharged on a balance of probabilities the
burden of proving that there was grave and sudden
provocation under Exception 1 to s. 300 of the Penal Code. D

(4) That the learned judge erred in law in admitting the evidence
leading to the discovery of the parang (P23C) with some
human head hairs (P23E).

(5) That the learned judge erred in law in holding that the E
discovery of the parang (P23C) with some human head hairs
(P23E) were corroborations of the cautioned statement of the
most cogent kind implicating the appellant with the offences
charged.
F
Decision Of The Court On Appeal

[7] We shall deal with grounds of appeal No. 1, 2 and 3

together. Under these grounds of appeal the appellant had raised
the defence of grave and sudden provocation coming from both G
the deceased persons, Joko Purnomo and Ahmad Nuryani. It was
contended for the appellant that the evidence on the grave and
sudden provocation can be found in the appellant’s cautioned
statement (P28) and was supported by the evidence of PW18 and
PW19 who found human head hairs belonging to the appellant at H
the scene of the incident. It was also submitted for the defence
that there is no reason not to believe those parts of the evidence
in P28 which are in favour of the appellant.

[8] On the defence of grave and sudden provocation, we need

at the outset state that the stand taken by the appellant when he I

testified under oath was that he did not give the cautioned
statement marked as exh. P28. As rightly pointed out by the
 [2006] 2 CLJ Bala Matik v. PP 239

A learned trial judge, the appellant was in fact retracting the

cautioned statement. Evidently, the appellant had resiled from the
position taken in the cautioned statement and that he was not
involved in the killing of the two deceased persons at all. It is trite
law that the oral evidence given by the appellant in this case is
B the best evidence adduced by him as the truthfulness and the
accuracy of the appellant could be tested by cross-examination.
On this point we would refer to the case of Saw Thean Teik v.
Regina [1953] 19 MLJ 124 wherein Spenser Wilkinson J at p. 126
had this to say:
C
Clearly, if the witness is in the witness box the best evidence is
his oral evidence as to what he saw or discovered (see section
60 of the Evidence Ordinance). Where witnesses of this kind are
brought to Court their reports should only be used, if at all, either
to refresh memory or as corroboration.
D
Similarly on the same point in the case of Muhammed bin Hassan
v. Public Prosecutor [1998] 2 CLJ 170 the Federal Court held as
follows:

E
In fact the prosecution called PW3, the maker of the report; by
so doing, the prosecution not only had complied with the best
evidence rule – the rule that the best evidence of which the
subject (or the nature of thing) is capable ought to be produced
– but had also afforded the appellant the benefit of cross-
examining PW3, an opportunity of which erstwhile counsel for the
F appellant had indeed availed himself in this case.

[9] It would be enlightening at this stage to reproduce the

actual evidence adduced by the appellant when he was examined
by his learned counsel during the examination-in-chief. The
G pertinent parts of the evidence are as follows:
Q. Where were you on or about 10.00p.m. on 10.4.97?

A. I was sleeping.

Q. What happened next?

H
A. I did not know what happened next.

Q. Did you meet anybody near your work site at about

10.00p.m. on 10.4.97?
I A. No, I did not go anywhere.

Q. At about 10.00p.m. on 10.4.97 were you aware that some

Indonesians were injured during a fight?
240 Current Law Journal [2006] 2 CLJ

A. No. A

Q. Were you engaged in a fight at about 10.00p.m. on 10.4.97?

A. No.

Q. When did you wake up from your sleep after 10.00p.m. on B

10.4.97?

A. I woke up in the morning.

Q. Were you aware some Indonesians were injured on about

10.4.97? C

A. No.

Q. When were you arrested by the police?

A. Middle of May 1997.

D
Q. Did you know why were you arrested by the police?

A. No.

Q. Did you make any statement to the police?

E
A. No.

Q. P28 shown to witness. Could you have a look? Did you sign
on P28?

A. They asked me to sign so I signed. F

Q. Did the police explain the contents of P28?

A. No.

Q. Did you tell the police anything after you were arrested? G

A. When I said that I did not do it they punched me and

strangled me.

Q. What did you tell the police?

H
A. I did not tell them anything.

Q. Were you beaten by some Indonesians at about 10.00p.m.

on 10.4.97?

A. No.
I
Q. Have you ever been beaten by some Indonesians before?

A. No.
 [2006] 2 CLJ Bala Matik v. PP 241

A Q. Have you fought with Indonesian people?

A. No.

Q. On 10.4.97 did you consume alcohol?

B A. No.

(See pages 202-204 of the Record of Appeal).

[10] Based on the above evidence as narrated, it is abundantly

clear that the appellant’s evidence prevailed on the basis that he
C was not involved in the killing of the Joko Purnomo and Ahmad
Nuryani respectively. In view of the said denial, we take the view
that the defence of grave and sudden provocation could never
subsist as an issue at all. It is plain and obvious that the above
evidence of the appellant revealed a defence of mere denial only.
D Upon a careful evaluation into the totality of the evidence
adduced in this case we find that the learned trial judge was
correct to come to the following conclusion which he had made
as follows:

E In view of the aforesaid, I disbelieved the defence of denial. I find

that this defence of denial has not created any reasonable doubt
in the prosecution’s case. Even if I do not believe the defence of
mere denial, I find that this defence of mere denial has not created
any reasonable doubt in the prosecution case. (See Mat v. Public
Prosecutor [1963] 29 MLJ 263). (See page 280 of the Record of
F Appeal).

[11] It is also the contention of learned counsel for the appellant

that the learned trial judge in considering the defence of grave and
sudden provocation failed to appreciate the principles as
G enunciated in the case of Mohamad Radhi bin Yaakob [1991] 3
CLJ 2073; [1991] 1 CLJ (Rep) 311. Learned counsel for the
appellant contended that it was incumbent on the trial judge to
carry out a separate exercise to determine whether the defence of
grave and sudden provocation put up by the appellant had raised
H a reasonable doubt in the prosecution case. With respect we do
not agree with him. The approach adopted by learned counsel for
the appellant is not a correct reflection of the principles as
enunciated in Mohamad Radhi’s case. It could not be gainsaid that
the defence of grave and sudden provocation is a special
I exception as provided in Exception 1 to s. 300 of the Penal Code.
The burden of proof is explained in s. 105 of the Evidence Act
1950 which provides as follows:
242 Current Law Journal [2006] 2 CLJ

105. Burden of providing that the case of accused comes within A

exceptions.

When a person is accused of any offence, the burden of proving

the existence of circumstances bringing the case within any of the
general exceptions in the Penal Code, or within any of the special
exception or proviso contained in any part of the same Code, or B
in any law defining the offence, is upon him, and the court shall
presume in the absence of these circumstances.

ILLUSTRATIONS

(a) ... C

(b) A accused of murder alleges that by grave and sudden

provocation he was deprived of the power of self control.

The burden of proof is on A.

D
(c) ...

[12] Based on the above provisions of the law applicable to this

case we noted that the learned trial judge had not only evaluated
the defence of grave and sudden provocation under Exception 1
E
to s. 300 of the Penal Code but also the defence of sudden fight
and right of private defence. We find that the learned trial judge
was right in making the finding as follows:
I therefore find that the accused had not discharged, on the
balance of probabilities, the burden of proving that there was F
grave and sudden provocation under exception 1 to section 300
of the Penal Code. In the result, the defence of grave and sudden
provocation fails.

(See pages 286-287 of the Record of Appeal).

G
[13] In the case of Ikau Anak Mail v. Public Prosecutor [1973] 2
MLJ 153 where the defence of grave and sudden provocation was
also in issue, the Federal Court inter alia at p. 154 held as follows:
To succeed in a defence of grave and sudden provocation, it is H
necessary in law for the defence to satisfy the court that not only
by the act of the deceased that the accused had been deprived of
the power of self-control but such acts of provocation would also
have deprived a reasonable man of the power of self-control.

It is pertinent to note that the Federal Court in the above case I

stipulated that the defence must satisfy the court that the accused
was deprived of the power of self-control and not merely to cast
 [2006] 2 CLJ Bala Matik v. PP 243

A a reasonable doubt in the prosecution case. The case of Ng Eng

Kooi v. Public Prosecutor [1970] 1 MLJ 267 is germane in illustrating
the nature of proof required to be introduced in a defence like the
present case where the Federal Court held at p. 271 as follows:

B However, the distinction between ‘satisfaction on a balance of

probabilities’ and ‘satisfaction beyond reasonable doubt’ is well
established in the law, since the courts always stress, when the
onus of proof is on the accused (for example, where he raises
the defence of insanity, or where some statute puts the onus on
him) that he need satisfy the jury only on the balance of
C probabilities.

[14] The nature of the burden on the defence was also

considered in Mohamad Radhi’s case itself (supra) wherein, the
Supreme Court (as it was then) held that:
D
In the course of the prosecution case, the prosecution may of
course rely on the available statutory presumption to prove one
or more of the essential ingredients of the charge. When that
occurs, the particular burden of proof as opposed to the general
burden, shifts to the defence to rebut such presumption on the
E balance of probabilities which from the defence point of view is
heavier than the burden of casting reasonable doubt, but it is
certainly lighter than the burden of the prosecution to prove
beyond reasonable doubt.

The above sentiments expressed by the Supreme Court are clearly

F
consistent with the principles as laid down in Public Prosecutor v.
Yuvaraj [1969] 2 MLJ 89 wherein at p. 92 the Privy Council held
that:
In their Lordships’ opinion the general rule applies in such a case
G and it is sufficient if the court considers that upon the evidence
before it is more likely than not that the fact does not exist. The
test is the same as applied in civil proceedings: the balance of
probabilities.

In the Singapore’s case of Vijayan v. Public Prosecutor [1975] 2

H MLJ 8 the Court of Appeal unequivocally explained the nature of
the burden placed on the accused person upon a defence of
provocation and it was held at p. 12 as follows:
It is needless to add that the matter must be considered
I objectively and that the burden is on the accused to establish
provocation on a balance of probabilities.
244 Current Law Journal [2006] 2 CLJ

[15] Based on the above cited case authorities it is clear that the A
threshold where the appellant in the present case must satisfy the
court is on the balance of probabilities that the injuries that he
had inflicted on the two deceased persons were as a result of
grave and sudden provocation and not merely to cast a reasonable
doubt on the prosecution case. In this context, in addition to the B
retraction by the appellant of the cautioned statement (P28), it is
our considered view that there was clearly no misdirection on the
part of the learned trial judge in concluding that the appellant had
failed to discharge on the balance of probabilities that he came
within any of the special exceptions in s. 300 of the Penal Code. C

Exculpatory Parts Of The Cautioned Statement

[16] Notwithstanding the retraction of the cautioned statement

(P28) and the bare denial by the appellant in his oral testimony,
D
we noted that the learned trial judge took the cautious approach
and proceeded to scrutinize and evaluate the exculpatory parts of
the cautioned statement as shown in his grounds of judgment.
(See pp. 281-287 of the Record of Appeal). The learned trial
judge had recited the exculpatory parts of the cautioned statement
E
as shown in the grounds of judgment and evaluated allegations
therein against the totality of the evidence adduced at the trial,
including the inculpatory parts of the cautioned statement and
arrived at the conclusion that the appellant failed to discharge on
the balance of probabilities the defence of grave and sudden
F
provocation, the right of private defence or the defence of sudden
fight.

In the case of Lim Yow Choon v. Public Prosecutor [1972] 1 MLJ

205 at p. 206, the Federal Court in a reference on questions law
pertaining to the contents of a cautioned statement held that: G

In reference to the second question, we are of the view that

notwithstanding that the cautioned statement was part of the
evidence for the prosecution, and that there are facts in the
cautioned statement which appear to contradict other parts of the
H
evidence led by the prosecution, it was still open to the trial court
as a judge of facts to assess the evidence and in so doing accept
part of it and reject the rest.

[17] Having considered the totality of the evidence both for the
prosecution and the defence it is our view that the finding of facts I
by the learned trial judge in rejecting the exculpatory parts of the
cautioned statement was clearly supported by the evidence
 [2006] 2 CLJ Bala Matik v. PP 245

A adduced in the whole trial. Having said so, it is trite law that an
appellate court should be slow in disturbing a finding of facts by
the trial judge unless such finding is clearly perverse which is not
the case herein.

B The Test Of Grave And Sudden Provocation

[18] In the case of Che Omar bin Mohd Akhir v. Public Prosecutor
[1999] 2 CLJ 780 his lordship Haidar, JCA (as he then was) in
delivering the judgment of the Court of Appeal reiterated the test
of grave and sudden provocation as follows:
C
The learned judge in our view, correctly approached the defence
of grave and sudden provocation in his judgment. It is in line with
what had been stated by our Supreme Court in Lorensus Tukan v.
PP [1988] 1 MLJ 251 at page 253. This is what the learned
D judge said at page 23 (page 124 of the appeal record) of his
judgment:

It is an established principle of law that the test of grave

and sudden provocation is whether a reasonable man
belonging to the same class of society as the accused,
E placed in the situation in which the accused was placed,
would be provoked as to lose his self-control. No abstract
standard of reasonableness can be laid down. What a
reasonable man would do under the circumstances
depends upon the customs, manners, way of life, traditional
values, etc. in short, the cultural, social and emotional
F
background of the society in which the accused belongs. It
is for the court to decide in each case having regard to all
the relevant circumstances. In order to succeed, the
provocation (a) be grave and sudden; and (b) have by its
gravity and suddenness deprived the accused of the power
G of self-control.

[19] It must be borne in mind that before the above test could
be relied upon to determine whether the appellant was provoked
to lose his self-control, there must be some evidence of
provocation accepted by the court to justify such an evaluation to
H
be carried out. In our instant case, apart from the bare allegations
by the appellant in the exculpatory parts of the cautioned
statement (P28) (for which he had retracted), there was not an
iota of evidence to support the appellant’s contention that he was
I
ever provoked at all. The learned trial judge had painstakingly
tested the evidentiary value of the exculpatory parts of the
246 Current Law Journal [2006] 2 CLJ

cautioned statement with the totality of the evidence adduced at A

the trial and the relevant parts of his findings are reproduced as
follows:
In cross-examination PW19 has stated that before the accused hit
him he saw the accused’s face. At that time he did not talk to B
the accused. It was a sudden attack on him.

PW19 was not cross-examined that he (PW19), Ahmad Nuryani

and Yoko Purnomo (sic) scolded the accused. It was also not put
to PW19 that the three of them stated that they were not afraid
of Iban and the people of Sarawak. It was also not put to PW19 C
that the three of them also said that they wanted to eat the blood
of Sarawak people. PW19 was not even cross-examined that the
three of them punched and kicked the accused. PW19 was also
not cross-examined that the three of them kicked the accused’s
leg and this made him to fall down. It was also not put to PW19
D
that the three of them hit the accused with their legs and hands.
Thus, from the evidence of PW19, it is clear that PW19, Ahmad
Nuryani and Yoko Purnomo were not armed. The three of them
did not carry any weapons. PW19 has also testified that when he
was attacked by the accused with the parang there were no others
at the vicinity. PW19 also testified that the attack by the accused E
was sudden.

(See pages 283-284 of the Record of Appeal).

[20] Hence, upon the positive evidence adduced by PW19 who

affirmatively testified that the three of them were attacked suddenly F
by the appellant on one side and the mere denials of the appellant
given in his oral testimony on the other side, it is our finding that
the learned trial judge was obviously correct to reject the defence
of grave and sudden provocation.
G
[21] Learned counsel for the appellant in his submission before us
contended that there was insufficient judicial appreciation by the
trial judge of the evidence adduced concerning 10 proven facts as
raised by the defence pertaining to the defence of sudden fight.
We find such a contention clearly misconceived in view of the H
finding made by the learned trial judge on this point. We do not
find it necessary to review here each of the so-called 10 proven
facts. It would be sufficient for us to reproduce what the learned
trial judge had stated as follows:
I
 [2006] 2 CLJ Bala Matik v. PP 247

A Thus from the evidence of the prosecution, it is clear that there

was no exchange of words between the deceased Ahmad Nuryani
and the accused. There was also no exchange of words between
PW19 and the accused. There was also no exchange of words
between Yoko Purnomo and the accused. The fact that some head
hairs of the accused were found in the right palm of the deceased
B
Ahmad Nuryani does not support the contention that there was a
fight. There was no evidence adduced on oath that the accused
was injured. (See page 285 of the Record of Appeal).

On the alleged 10 proven facts as submitted by learned counsel

C for the appellant to constitute the defence of sudden fight, we
find that the learned trial judge had adequately considered all
those pieces of evidence before coming to the conclusion as
follows:
I am of the view that the accused had not discharged, on a
D
balance of probabilities, the burden of proving any circumstances
which brought him within the general exception of right of private
defence under section 96 of the Penal Code or any of the special
exceptions, namely, exception 2 (the right of private defence), and
4 (sudden fight in the heat of passion upon a sudden quarrel) to
E section 300 of the Penal Code. (See page 287 of the Record of
Appeal)

[22] We find there was no failure by the learned trial judge to

consider the defence of sudden fight as submitted by learned
F
counsel for the appellant. The finding by the learned trial judge on
the defence of sudden fight is clearly beyond reproach.
Information Leading To The Discovery Of Parang (P23C)

[23] We now deal with grounds of appeal No. 4 and 5 together.

G Learned counsel for the appellant submitted that the information
given by the appellant leading to the discovery of the parang
(P23C) should have been ruled inadmissible because its prejudicial
effect outweighed its probative value. On this point, first and
foremost, we need to categorically state here that the information
H given by the appellant which led to the discovery of P23C was
given by the appellant without any compulsion whatsoever. There
was also no objection by learned counsel for the appellant as to
its admissibility and more importantly, there was no evidence of
any involuntariness exerted on the appellant to secure the said
I information. As such, we find there is no basis whatsoever for the
appellant to complain that the prejudicial effect of the information
248 Current Law Journal [2006] 2 CLJ

leading to the discovery of the parang outweighed its probative A

value. On this point in the case of Francis Antonysamy v. Public
Prosecutor [2005] 2 CLJ 481, the Federal Court held at p. 501
that:
The party that is seeking to have the evidence excluded in the B
exercise of the discretion of the Court has the onus of showing,
on the balance of probabilities, that the discretion should be
exercised in its favour.

Similarly in the case of Juraimi bin Husin v. Public Prosecutor [1998]

2 CLJ 383, the Court of Appeal in accepting the information C
given by the accused held at p. 418 as follows:
Furthermore, in the present case, unlike Md Desa’s case, there
was no challenge taken when the impungned pieces of information
were adduced in evidence. If it was the first accused’s case that
D
the information he gave had been extorted from him under threat
or duress, it was the duty of his counsel to have objected to their
admission. It is too late in the day to now argue that the
information was given in consequence of any threat, promise or
inducement.
E
Clearly, in the present case we find there was no material before
the trial judge to warrant the rejection of the information leading
to the discovery of the parang.

[24] The next complaint of the appellant concerned the non-

F
recording of the exact words used by the appellant and in support
thereto, learned counsel for the appellant referred to the case of
Hasamuddin bin Talena v. Public Prosecutor [2002] 2 CLJ 504.
However on this point there is another case of Public Prosecutor v.
Hashim bin Hanafi [2002] 4 MLJ 176, which addressed the same
G
issue and also referred specifically to the case of Hasamuddin
wherein Augustine Paul J (as he then was) at p. 186 held that:
It follows that the absence of a written record cannot affect the
admissibility of the oral evidence of the information. It is of course
desirable to have such a record as pointed out by the Federal H
Court. I consider it necessary at this stage to refer to the recent
judgment of the Court of Appeal in Hasamuddin bin Talena v.
Public Prosecutor [2002] 2 MLJ 408 where it was held that
information given under s. 27 must be exact and recorded in the
language or words used by the accused. It is my view that this
case is peculiar to its own facts in the light of what I have said I
thus far and in particular the pronouncement by the Federal Court
in Sum Kum Seng.
 [2006] 2 CLJ Bala Matik v. PP 249

A It would appear now that the absence of a written record cannot

affect the admissibility of the oral evidence of the information. In
this regard we noted that for the present case there was in fact a
contemporaneous report lodged (P35) by the police officer (PW18)
on what was told to him by the appellant which led to the
B discovery of the parang.

[25] Still on the issue of s. 27 of the Evidence Act 1950, learned

counsel for the appellant submitted that the trial judge should have
exercised his discretion to exclude the information given by the
C appellant leading to the discovery of the parang to protect the
appellant’s right against self-incrimination. We find that this issue
had been conclusively dealt with by the apex court of this country
in the case of Francis Antonysamy v. Public Prosecutor (supra),
wherein at p. 404 the Federal Court held that:
D
Since voluntariness is not a condition of admissibility of
information supplied under s. 27 the privilege against self-
incrimination which is manifested in an involuntary statement or
in a statement made in breach of the requirements of s. 112 must
be deemed to have been impliedly abrogated insofar as s. 27 is
E concerned. It follows that the argument of learned counsel that s.
27 is subject to the voluntariness rule in s. 24 and the privilege
against self-incrimination in s. 112 cannot be sustained.

[26] It is also the submission of learned counsel for the appellant

that the evidence of the appellant pointing to the parang as
F
shown in the photograph exh. P32D could not be used to
corroborate the cautioned statement, implicating the appellant to
the offence. On this point we find that the conduct of the
appellant pointing to the parang as shown in exh. P32D was
never relied upon by the learned trial judge in coming to the
G
decision that it corroborated the cautioned statement. It is the
discovery of the parang which corroborated the cautioned
statement and not otherwise as submitted by learned counsel for
the appellant. Be that as it may, we find that the law clearly
permits such an evidence of pointing to the parang as shown in
H
P32D to be admitted as conduct under s. 8 of the Evidence Act
1950. On this point the Supreme Court of India in the case of
Prakash Chand v. State AIR [1979] Supreme Court 400 at p. 404
had this to say:
I
250 Current Law Journal [2006] 2 CLJ

What is excluded by section 162 Criminal Procedure Code is the A

statement made to a Police Officer in the course of investigation
and not evidence relating to the conduct of an accused person (not
amounting to a statement) when confronted or questioned by a
Police Officer during the course of an investigation. For example,
the evidence of the circumstance, simpliciter, that an accused
B
person led a Police Officer and pointed out the place where the
stolen Articles or weapons which might have been used in the
commission of the offence were found hidden, would be admissible
under section 8 of the Evidence Act irrespective of whether any
statement by the accused contemporaneously with or antecedent
to such conduct falls within the purview of section 27 of the C
Evidence Act (vide Himachal Pradesh Administration v. Om Prakash
(AIR [1972] SC 975).

Although the learned trial judge in the present case did not rely
upon such an evidence as to the gesture or conduct of the
D
appellant pointing to the parang used by him in slashing the two
deceased persons, it is patently clear that such an evidence could
be used to corroborate the prosecution case.

Conclusion
E
[27] There is clearly no misdirection on the part of the learned
trial judge in holding that it was the appellant who caused the
deaths of Joko Purnomo and Ahmad Nuryani on 10 April 1997
and that the acts that caused the deaths were murder. We
therefore dismissed the appeal by the appellant and affirmed the F
conviction and sentence imposed by the learned trial judge.