IN THE COURT OF APPEAL OF MALAYSIA

HOLDEN IN KOTA KINABALU, SABAH

[APPELLATE JURISDICTION]
CRIMINAL APPEAL NO. S-05-372-12/2014

BETWEEN

PUBLIC PROSECUTOR APPELLANT

AND

MUSDAR BIN RUSLI RESPONDENT

(In the High Court of Sabah and Sarawak in Sandakan

Criminal Trial No.S45-302-2/6-2013

Between

Public Prosecutor Complainant

And

Musdar bin Rusli Accused)

CORAM:

MOHD ZAWAWI SALLEH, JCA

ABANG ISKANDAR ABANG HASHIM, JCA
AHMADI HAJI ASNAWI, JCA

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 JUDGMENT OF THE COURT
Introduction
[1] The respondent was charged before the Sandakan High Court
for murder and attempt to commit suicide. The charges read as
follows:

First charge:

“That you on 2.5.2012 at about 6.30 p.m., at an

unnumbered house at the Perumahan Pekerja
Kampung Arau, Ladang Genting Tanjung in the District
of Kinabatangan, in the State of Sabah, did commit a
murder by causing a death to one, Intan Bago
(Passport No. AM 282072) and thereby committed an
offence punishable under section 302 of the Penal
Code.”

Second charge:

“That you on 2.5.2012 at about 6.35 p.m., at an

unnumbered house at the Perumahan Pekerja
Kampung Arau, Ladang Genting Tanjung in the District
of Kinabatangan, in the State of Sabah, had attempted
to commit suicide by stabbing yourself with a knife, and
thereby, committed an offence punishable under
section 309 of the Penal Code.”.

[2] The respondent had pleaded guilty to the second charge and
he was accordingly convicted. The learned High Court Judge
postponed sentencing for the second charge until the conclusion of
the trial in respect of the first charge.

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[3] At the end of the trial of the first charge, the respondent was
convicted for an offence of culpable homicide not amounting to
murder punishable under section 304(a) of the Penal Code (“PC”).
He was sentenced to 25 years imprisonment commencing from the
date of his arrest. The respondent was also sentenced to 1 year
imprisonment in respect of the second charge. The learned High
Court Judge ordered that both sentences to run concurrently and
upon completion of his sentences, the respondent be deported to his
country of origin. Aggrieved by the impugned conviction and
sentence in respect of the reduced charge, the Public Prosecutor
(“PP”) has now appealed to this Court.

[4] We have heard learned Deputy Public Prosecutor (“DPP”) and

learned counsel for the respondent at some length. We have also
perused the written submissions carefully and gone through the
record of appeal in its entirety. For the reasons that follow, we found
there was merit in this appeal and accordingly we allowed the appeal
by the PP. We set aside the conviction and sentence of the learned
trial judge and substituted it with an order of conviction for murder as
originally charged. The respondent was sentenced to death as
prescribed under section 302 of the PC.

The Factual Background

The Prosecution’s Case
[5] The antecedent facts giving rise to this appeal may be stated
in brief as follows. The respondent and one Intan Bago (the

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deceased), both Indonesians, were husband and wife for 20 years
and blessed with 9 children. The respondent was a palm fruit
harvester at Ladang Genting Tanjung (the plantation) and the
deceased was a general worker involved in the ablation process.
Their child, Sabri bin Musdar (PW8), was also a palm fruit harvester.

[6] The respondent and the deceased were allotted quarters

within the said plantation. The respondent and the deceased
occupied one house whilst another was occupied by other plantation
workers, Ansyalmi Nadus (PW9) and her husband, Martin. Ratang
Erna Ardi (PW7) occupied a house behind the deceased’s
residence.

[7] On 2.5.2012, at about 6.30p.m., PW7 was at the kitchen and

she saw the respondent gripped the deceased’s neck while holding
a knife. She was terrified and ran to Martin’s house looking for PW8.
At the material time, PW8 was watching television programme at
Martin’s house. PW8 heard PW7 called out his name and PW8
went back to his house to check on his parents. He saw his parents
stood facing each other and the respondent had his hand placed on
the deceased’s chest. The deceased then collapsed and PW8 saw
the respondent stabbing himself.

[8] On 7.5.2012, Dr Jessie Hiu (PW1), conducted a post mortem

on the deceased and prepared a post mortem report (exhibit P6).
She found 3 stab wounds on the deceased’s front chest and another

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3 stab wounds on the back of the chest. There were 2 lacerations on
the deceased’s face with multiple abrasions on the forehead and
bruises on the upper lip, with dislocation of the upper tooth. She
opined that it was the stab wound under mid front of the chest (injury
no.7 in the post mortem report) that caused the deceased’s death.
The wound was directed backward.

[9] Inspector Razlan bin Abdul Razak (PW12) from the police
forensic team, recovered a knife (exhibit P16a) and a knife sheath
(exhibit P20a) near the deceased’s body. PW12 collected blood
sample swab (exhibit P21a) on the knife sheath for forensic DNA
analysis.

[10] The items were analysed by Zaliha binti Saudi (PW6), a

science officer at the Chemistry Department. She found that the
DNA profile on exhibit P16a matched that of the respondent. She
also found that the respondent and the deceased were the
contributors of the mixed DNA profile found on the cotton swab
P21a.

Findings of the High Court at the Close of the Prosecution’s

Case

[11] After conducting a maximum evaluation of the evidence, both

oral and documentary, the learned trial judge held that the
prosecution had succeeded in establishing a prima facie case
against the respondent for murder. The respondent was called to
enter his defence.

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The Defence Case
[12] The respondent gave evidence on oath. He testified that he
had been unwell for days and returned home from work early on that
fateful day. Their son was crying and the deceased was cooking in
the kitchen. The respondent held his son and tried to sooth the baby
by rocking him back and forth. However, the baby continued to cry.
Unable to withstand the crying, the respondent took the baby to the
deceased. Once he got to the kitchen the deceased started nagging
at him for his failure to assist her in doing the household chores. The
nagging finally got to the respondent causing him to pull the
deceased’s hair and pushed her to the floor. The respondent then
took a knife and stabbed himself. The respondent denied stabbing
the deceased as he loved his wife.

Findings of the High Court at the End of Trial

[13] At the conclusion of the trial, the learned trial judge rejected the
respondent’s defence that he did not stab the deceased. His
Lordship found that based on the circumstances of the case and the
nature of injuries inflicted upon the deceased, there was evidence of
an intention on the part of the respondent to cause bodily injuries on
the deceased which is likely to cause death. However, the learned
trial judge found that the prosecution had only succeeded in proving
a case of culpable homicide not amounting to murder, and he
proceeded to convict and sentence the respondent on the reduced

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charge of culpable homicide not amounting to murder. Thus this
appeal by the learned DPP before us.

The Appeal
[14] Before us, the main thrust of the learned DPP’s argument is
that the learned trial judge had erred in amending the charge to one
under section 304(a) of the PC on the ground that the respondent
had no intention to kill the deceased. This is contrary to the
evidence brought on record. Learned DPP submitted that in view of
the injury caused on the vital part of the body i.e. the chest, a
conviction under section 302 of the PC, should have been recorded
against the respondent. Learned DPP posited that the view taken by
the learned trial judge is patently erroneous in law as the offence of
murder was clearly made out. He urged this Court to allow the
appeal.

[15] In reply, learned counsel for the respondent contended that

taking the prosecution’s case on its face value, it was not a case of
murder but it was a case appropriately falling under section 304(a) of
the PC. Learned counsel pointed out that there was no intention on
the part of the respondent to commit the murder of his own wife.
The relationship between the respondent and the deceased was
amicable and the same has been clearly borne out in the testimony
of PW7.

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[16] Learned counsel submitted further that the respondent was
rightly convicted under section 304(a) of the PC and no interference
by the Court was called for.

Issue
[17] The issue that arises for our determination in this instant
appeal is whether the respondent has been rightly convicted for an
offence of culpable homicide not amounting to murder, punishable
under section 304(a) of the PC or he should have been convicted for
an offence of murder, punishable under section 302 of the same
code.

Our Findings
[18] In our view, the discussion on the legal principles governing
the distinction between murder and culpable homicide not amounting
to murder would be necessary to answer the issue raised.

[19] There are a plethora of cases which discuss the difference

between murder and culpable homicide [See Pendakwa Raya v
Megat Shahrizat bin Megat Shahrir [2011] 8 CLJ 893; Tham Kai
Yau v Public Prosecutor [1977] 1 MLJ 174; Poh Weng Nam v
Public Prosecutor [2013] 4 CLJ 1096; Public Prosecutor v
Thenegaran a/l Murugan & Another Appeal [2013] 4 CLJ 364].

[20] The safest way to approach the interpretation and application

of sections 299 and 300 of the PC, i.e., “culpable homicide” and
“murder” seems to be to keep in focus the keywords used in the

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 various clauses of these sections. In the case of Phulis Tudu and
Anr. v State of Bihar (now Jharkhand) AIR 2007 SC 3215, the
Court provided the following comparative table to help in
appreciating the points of discussion between these two offences:

Section 299 Section 300

A person commits culpable Subject to certain exceptions culpable
homicide if the act by which homicide is murder if the act which the
the death is caused is done death caused is done
INTENTION
(a) With the intention of (1) With the intention of causing death;
causing death; or or

(b) With the intention of (2) With the intention of causing such
causing such bodily bodily injury as the offender knows
injury as is likely to to be likely to cause the death of
cause death or; the person to whom the harm is
caused; or

(3) With the intention of causing bodily

injury to any person and the bodily
injury intended to be inflicted is
sufficient in the ordinary course of
nature to cause death; or
KNOWLEDGE
(c) With the knowledge that (4) With the knowledge that the act is so
the act is likely to cause imminently dangerous that it must in
death. all probability cause death or such
bodily injury as is likely to cause
death, and without any excuse for
incurring the risk of causing death or
such injury as is mentioned above.

(Emphasis our).

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[21] The plain reading of the section makes it clear that the first
clause of section 300 reproduces the first part of section 299.
Therefore, ordinarily if the case comes within clause (a) of section
299, it would amount to murder.

[22] Clause (b) of section 299 corresponds with clauses (2) and (3)
of section 300. Clause (b) of section 299 does not postulate any
such knowledge on the part of the offender. Thus, if the assailant
had no knowledge about the disease suffered by the victim, nor an
intention to cause death or bodily injury sufficient in the ordinary
course of nature to cause death, the offence will not be murder,
even if the injury which caused the death, was intentionally given.

[23] A comparison of clause (b) of section 299 with clause (3) of

section 300 would show that the offence is culpable homicide if the
bodily injury intended to be inflicted is likely to cause death; it is
murder if such injury is sufficient in the ordinary course of nature to
cause death. The distinction is fine but appreciable. The word “likely”
means “probably”. When the chances of a thing happening are
greater than it’s not happening, we say the thing will “probably”
happen. When the chances of its happening are very high, we say
that it will 'most probably' happen. An injury sufficient in the ordinary
course of nature to cause death only means that “death will be the
most probable result of the injury having regard to the ordinary
course of nature”. The expression does not mean that death must
result. Thus, the distinction between clause (b) of section 299 and

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clause (3) of section 300 would depend very much upon the degree
of probability or likelihood of death in consequence of the injury.

[24] Clause (c) of section 299 and clause (4) of section 300 appear
to apply to cases in which there is no intention to cause death or
bodily injury but knowledge that the act is dangerous and therefore
likely to cause death. Both clauses require knowledge of the
probability of the act causing death. Clause (4) requires knowledge
of a very high degree of probability. The following factors are
necessary:

(i) That the act is imminently dangerous,

(ii) That in all probability it will cause death or such bodily

injury as is likely to cause death; and

(iii) That the act is done without any excuse for incurring the
risk. Whether the offence is culpable homicide or murder,
depends upon the degree of risk to human life. If death is
a likely result, it is culpable homicide, if it is the most
probable result, it is murder. Furious driving and firing at a
mark near a public road are cases of these description.

[25] The academic distinction between “murder” and “culpable

homicide not amounting to murder” was made clear in the case of
State of A.P. v. Rayavarapu Punnayya [1967] 4 SCC 382, where
the Supreme Court of India observed as follows:

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"..... that the safest way of approach to the
interpretation and application of Section 299 and 300 of
the Code is to keep in focus the key words used in
various clauses of the said sections. Minutely
comparing each of the clauses of section 299 and 300
of the Code and the drawing support from the decisions
of the court in Virsa Singh v. State of Punjab and
Rajwant Singh v. State of Kerala, speaking for the
court, Justice RS Sarkaria, neatly brought out the points
of distinction between the offences, which have been
time and again reiterated. Having done so, the court
said that whenever a court is confronted with the
question whether the offence is ‘murder’ or ‘culpable
homicide not amounting to murder’, on the facts of a
case, it will be convenient for it to approach the problem
in three stages. The question to be considered at the
first stage would be, whether the accused has done an
act by doing which he has caused death of another.
Proof of such casual connection between the act of the
accused and the death, leads to the, second stage for,
considering whether that act of the accused amounts to
culpable homicide as defined in s.299. If the answer to
this question is prima facie found in the affirmative, the
stage for considering the operation of s.300, Penal
Code, is reached. This is the stage at which the Court
should determine whether the facts proved by the
prosecution bring the case within the ambit of any of the
four clauses of the definition of ‘murder’ contained in
s.300. If the answer to this question is in the negative
the offence would be ‘culpable homicide not amounting
to murder’, punishable under the first or the second part
of s.304, depending, respectively, on whether the

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 second or the third clause of s.299 is applicable. If this
question is found in the positives, but the case comes
within any of the Exceptions enumerated in s.300, the
offence would still be ‘culpable homicide not amounting
to murder’, punishable under the First Part of s.304,
Penal Code.

The above are only broad guidelines and not cast-iron

imperatives. In most cases, their observance will
facilitate the task of the court. But sometimes the facts
are so inter-twined and the second and the third stages
so telescoped into each other, that it may be convenient
to give a separate treatment to the matters involved in
the second and third stages.”.

[26] Keeping in view the above principles, we proceed to consider

whether in this instant appeal a case of murder against the
respondent is made out or otherwise the offence said to have been
committed would only be culpable homicide not amounting to
murder punishable under section 304(a) of the PC.

[27] For convenience of discussion, we restate the proposition of

law that in order to establish a case of murder punishable under
section 302 of the PC, it is incumbent upon the prosecution to prove:

(i) the death of the deceased;

(ii) the deceased’s death was caused by injury or injuries

inflicted on the deceased;

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 (iii) the accused had caused the injury or injuries which
resulted in the deceased’s death; and

(iv) the act causing the death was committed with the mens
rea under section 300(a),(b),(c) or (d) i.e., if:

a) the act is done with the intention of causing death;

b) it is done with the intention of causing such bodily

injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused;

c) if it is done with the intention of causing bodily injury

to any person, and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature
to cause death; or

d) if the person committing the act knows that it is so

imminently dangerous that it must in all probability
cause death, or such bodily injury as is like to cause
death, and commits such act without any excuse for
incurring the risk of causing death, or such injury as
aforesaid.

[28] Element (i) is a non-contentious issue. It is a common ground

that the investigating officer (PW13) had seen the body of the
deceased at the scene and had together with the deceased’s son

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(PW8), positively identified the deceased at the mortuary for the
purpose of post mortem.

[29] As regards element (ii), the learned trial judge had appraised
the evidence of the pathologist (PW1), as well as her post mortem
report (exhibit P6). PW1 concluded that the cause of death was the
stab wound on the chest which was inflicted by a sharp object with
one sharp edge and blunt edge akin to exhibit P16a.

[30] As regards element (iii), the prosecution relied heavily on the

evidence of PW7. Therefore, it is incumbent upon us to scrutinize
her evidence carefully. PW7 testified that she had witnessed the
tussle between the deceased and the respondent. PW7 deposed
that she was sitting beside the house and overseeing her children
before the brawl started. She went on to describe that the
respondent had attempted to sooth the crying baby by rocking the
swing but failed miserably. The deceased then came out from the
kitchen and rocked/carried (digendong) the baby to sleep. After the
deceased had managed to put the baby to sleep, she went back to
the kitchen and continued her chores. When asked whether the
deceased was angry, PW7 replied: ‘bisinglah dia punya mulut
sambil bersihkan ikan.’

[31] According to PW7, she then entered her kitchen and heard the
deceased cried out faintly but PW7 paid her no mind thinking that
the deceased must have suffered a hot water burn. PW7 was

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shocked when she heard the deceased cried out again in pain
(loudly). PW7 then saw the respondent standing at the kitchen door
with one hand gripping the deceased’s neck and the other holding a
knife. The deceased struggled against him and fought to get away
from the respondent. PW7 ran to the neighbour’s house and
shouted for assistance. PW7 was certain that there was no one else
present at the vicinity at the material time. PW7 had stood firm and
remained unshaken in the cross-examination and nothing has been
elicited to dislodge her testimony.

[32] In his judgment, the learned trial judge found that there was
no material before him to disbelieve the evidence of these two
witnesses. His Lordship, after having considered the totality of
PW7’s testimony, coupled with PW8’s evidence, held that it was the
respondent who had inflicted the injuries which caused the
deceased’s demise. The respondent’s conduct of putting his hand
on the deceased’s neck was also found to be consistent with the
fatal injury which was directed backward.

[33] It was contended by learned counsel for the respondent at

trial that the deceased was assaulted by an unknown female
because an unidentified DNA profile was found at the scene. With
respect, the contention was misconceived. Out of all the human
bloodstains taken and analysed, all proved to belong to either the
deceased or the respondent, except a swab marked ‘E3’ or exhibit

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P19. We noted that the learned trial judge had specifically
addressed this issue at page 274 of the Appeal Record as follows:

“The defence submitted that there is a possibility that

someone else, other female who is still at large,
inflicted those injuries on the deceased. However, as
I have ruled earlier, the prosecution had established
through its witnesses that there was no other person
at the crime scene at that material time except the
accused and the deceased. If indeed it was true that
there was other female who inflicted the injuries on
the deceased, the accused should have given
assistance to his wife but instead he stabbed himself
to commit suicide.”.

[34] The prosecution’s case is based upon circumstantial

evidence. The law relating to circumstantial evidence is well settled.
Circumstantial evidence can be the sole basis for a conviction
provided that the condition precedents before conviction on
circumstantial evidence are fully established. The conditions are:

(i) The circumstances from which the conclusion of guilt is

to be drawn should be fully established;

(ii) The facts so established should be consistent with the

hypothesis of the guilt of the accused;

(iii) Circumstances should be conclusive in nature and

tendency. There must be a chain of evidence so
complete as not to leave any reasonable ground for the

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 conclusion to be consistent with the innocence of the
accused and must show that in all human probability the
act must have been done by the accused.

[See Magendran a/l Mohan v. Public Prosecutor [2011] 6

MLJ 1; [2011] 1 CLJ 805, Mazlan bin Othman v. Public
Prosecutor [2013] 1 AMR 615; Dato’ Mohtar Hashim &
Anor v. Public Prosecutor [1980] 2 CLJ 10; [1983] CLJ
(Rep) 10; Chan Chwen Kong v. Public Prosecutor [1962]
1 LNS 22]

[35] In Joseph v. State of Kerala [2005] 5 SCC 197 at page 203,

the Supreme Court of India had explained under what
circumstances conviction can be based purely on circumstantial
evidence. It is observed, that:

“… it is often said that though witness may lie,

circumstances will not, but at the same time it must
cautiously be scrutinized to see that the incriminating
circumstances are such to lead only to a hypothesis
of guilt and reasonably exclude every possibility of
innocence of the accuse. There can also be no hard
and fast rule as to the appreciation of evidence in a
case and being always an exercise pertaining to
arriving at a finding of fact the same has to be in the
manner necessitated or warranted by peculiar facts
and circumstances of each case. The whole effort
and endeavour in the case should be to find out
whether the crime was committed by the accused

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 and the circumstances proved from themselves into
a complete chain unerringly pointing to the guilty of
the accused.”.

[36] We agreed with the learned trial judge’s finding on element

(iii) that there are sufficient circumstantial evidence that proved the
nexus between the appellant and the deceased’s death. The
evidence, though circumstantial, is so cogent and strong such that it
allowed the learned trial judge to draw the only irresistible inference
that the respondent is the one who caused the deceased’s death.

[37] The next element is intention or mens rea. As stated in the

opening statement, the prosecution relies on limb (c) of section 300
of the PC. Intention or mens rea is not something which is capable
of being established by direct evidence; it is a matter of inference. It
could be gathered from all the facts and circumstances prevailing in
the case. There are an abundance of literature in this area of
jurisprudence [See Sainal Abidin bin Mading v Public Prosecutor
[1994] 4 MLJ 497, Tham Kai Yau & Ors v. Public Prosecutor
[1977] 1 MLJ 174].

[38] It has been observed in Ratanlal and Dhirajlal Law of

Crimes, 25th Edition at page 1304 that:

“Intention must be inferred not merely from the natural

consequences of his act but from the act itself, and as
the natural consequences of an act of the kind in
question would be death.”

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[39] Limb (c) under section 300 of the PC is in pari materia with
the 3rd limb of the Indian PC. In Virsa Singh v State of Punjab AIR
[1958] SC 465, V. Bose J, speaking for the Court, explained the
meaning and scope of clause 3. It was observed at page 467 that
the prosecution must prove the following facts before it can bring a
case under section 300 3rd limb:

“Firstly, it must establish, quite objectively, that a bodily

injury is present. Secondly, the nature of the injury must
be proved; these are purely objective investigations.
Thirdly, it must be proved that there was an intention to
inflict that particular bodily injury, that is to say, that it was
not accidental or unintentional, or that some other kind of
injury was intended. Once these three elements are
proved to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just
described made up of these three elements set out above
is sufficient to cause death in the ordinary course of
nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the
offender.”

[40] V.Bose J. explained further the third ingredient in the

following words at page 468 of the judgment:
“The question is not whether the prisoner intended to
inflict a serious injury or a trival one but whether he
intended to inflict the injury that is proved to be present. If
he can show that he did not, or if the totality of the
circumstances justify such an inference, then, of course,
the intent that the section requires is not proved. But if

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 there is nothing beyond the injury and the fact that the
appellant inflicted it, the only possible inference is that he
intended to inflict it. Whether he knew of its seriousness,
or intended serious consequences, is neither here nor
there. The question, so far as the intention is concerned,
is not whether he intended to kill, or to inflict an injury of a
particular degree of seriousness, but whether he intended
to inflict the injury in question; and once the existence of
the injury is proved the intention to cause it will be
presumed unless the evidence or the circumstances
warrant an opposite conclusion.”.

[41] These observations of V.Bose J. have become locus

classicus. The test laid down in the case of Virsa Singh is now
ingrained in our legal system and has become part of the rule of law.
Thus, to sustain a charge of murder under limb (c) to section 300 of
the PC, the prosecution must prove by evidence, either direct or
circumstantial, from prosecution witnesses that the injury sustained
by the deceased was intentionally caused by the accused. For the
second part of the same limb (c), the prosecution must lead
evidence through medical doctor that such injury was sufficient in
the ordinary course of nature to cause the death of the deceased.
This part of the enquiry is purely objective and has nothing to do
with the intention of the offender. If the offender inflict injury of that
kind, he must face the consequences; and they can only escape if it
can be shown, or reasonably deduced, that the injury was accidental
or otherwise unintentional.

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[42] In this instant appeal, there was the evidence from the
prosecution witnesses i.e. PW7 and PW8, who had testified to the
effect that the injuries sustained by the deceased was attributable to
the respondent. A sharp knife was used in the commission of the
crime and the deceased had sustained several stab wounds on the
vital part of her body. In the absence of other circumstances which
would either totally or partially negate criminal intention, the
respondent was deemed to have intended the consequences of his
acts i.e. he had intended the injuries which were inflicted by him on
the deceased’s chest which, objectively, is a critical part of a human
anatomy.

[43] We now turn to consider the evidence adduced by the

prosecution that would evince the nature of the injury sustained by
the deceased. We found that the prosecution had established the
second part of limb (c) through PW1’s testimony. PW1 found that
the cause of death was a stab wound (injury No.7) that was directed
backward cutting the intercostal muscle, the pericardium, the
ascending aorta, the right atrioventricular and the right atrium. PW1
testified that the said injury was sufficient in the ordinary course of
nature to cause death. PW1 also stated in her evidence that the
deceased was stab repeatedly and it was not accidental.

[44] In our view, the injury sustained by the deceased was fatal
when the main artery was severed. This clearly evinced the
intention on the part of the respondent to cause bodily injury to the

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deceased. As the evidence of the prosecution stood at the end of its
case at the High Court trial, we were of the considered view that the
instant appeal case would fall squarely within the ambit of section
300 of the PC. In absence of any evidence to the contrary, the
respondent who had inflicted these injuries must have intended to
kill the deceased. We found that the learned trial judge was right to
hold that the prosecution had proved a prima facie case of murder
and to call the respondent to enter defence upon the same. This in
turn meant that the evidence adduced by the prosecution must be
such that it can be overthrown only by evidence in rebuttal [See
Balachandran v Public Prosecutor [2005] 1 CLJ 85].

[45] The defence raised by the respondent in the instant appeal

was a mere denial and that part of the evidence has been
summarised and alluded to in para 13 of our judgment. The learned
trial judge had stated in unequivocal terms at page 277 of the record
of appeal that:

“I do not believe the evidence of the accused that he

did not stab the accused. The prosecution had
adduced overwhelming evidence to show that it was
the accused that inflicted the injuries on the
deceased.”

[46] However, the learned trial judge in reliance of the case of

Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ 174, went

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on to amend the charge under section 302 of the PC to one under
section 304(a) of the same Code on the following grounds;
“I am in doubt that the accused had the intention to kill
the deceased. I find that the prosecution did not
establish that the accused had the intention to kill the
deceased…
In the instant case, based on the nature of injuries
sustained by the deceased, there was evidence of an
intention on the part of the accused to cause bodily
injury to the deceased. However, having made a fine
distinction between section 299 and section 300 I am
of the view that based on the nature and number of
injuries inflicted on the deceased, the accused had no
intention to cause death to the deceased.
I believe being sick for about 10 days, the deceased
must have not been able to bear the mumbling and
nagging by the deceased and this had triggered him to
stab the deceased…. I believe there was a physical
fight between the accused and the deceased where
the accused punched the deceased in the mouth
before a knife was used to inflick the fatal injury…
I am of the opinion that in view of the injuries
sustained by the deceased and given the
circumstances the accused was then in, there was
evidence of an intention on the part of the accused to
cause bodily injuries on the deceased (which is likely
to cause death).”.

[47] With respect, the learned High Court Judge fell into a serious
error. In Tham Kai Yau (supra), having regard to the weapon

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(chopper) used to cause the multiple injuries leading to shock and
haemorrhage, it would be a case under limb (c) of section 300 PC
under normal circumstances. However, the pathologist’s evidence
was silent in respect of the nature of the injuries and its likely and
natural effects. The Federal Court found that the absence of such
positive statement of opinion emanating from the medical expert
was fatal to the charge of murder that was premised upon limb (c) to
section 300 of the PC. Since there was a doubt created, such doubt
must be resolved in favour of the accused. However, in the instant
appeal, there was clear testimony by the medical expert that the
injury intentionally inflicted was sufficient in the ordinary course of
nature to cause the death of the deceased. Therefore, the instant
appeal was not a case which could be brought within the lesser
offence of culpable homicide not amounting to murder in view of the
nature of the medical evidence which we have alluded to earlier.

[48] It is useful to note here that the respondent had not taken the
plea that his case fell in any of the exceptions to section 300 of the
PC. On the contrary, he has taken the plea that he did not stab his
wife which resulted in the death of the deceased. Therefore, the
learned trial judge was in error in reducing the charge under section
300 to one under section 304(a) on the ground that the respondent
stabbed the deceased because she had subjected him to constant
nagging.

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[49] Where such injuries which are intentionally inflicted by the
respondent on the deceased, which were established by the
pathologist (SP1) as being sufficient in the ordinary course of nature
to cause death, it will indeed be a travesty of justice to hold that the
respondent was guilty only of the lesser offence of culpable
homicide not amounting to murder and punishable under section
304(a) of the PC.

Conclusion
[50] In the premises, we found that the learned High Court Judge
had erred in finding the respondent guilty for the offence punishable
under section 304(a) of the PC. The resultant effect of our finding is
the allowance of the appeal by Public Prosecutor. The decision of
the learned trial judge was set aside and substituted with a
conviction for murder, punishable under section 302 of the PC. The
respondent was sentenced to death as mandatorily prescribed by
law. So ordered.

Dated: 13th April 2017

sgd.
(DATO’ SETIA MOHD ZAWAWI SALLEH)
Judge
Court of Appeal
Malaysia

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Counsel for the Appellant: Adam Mohamed
Deputy Public Prosecutor
Appellate and Trial Division
Attorney General’s Chambers
Putrajaya.

Counsel for the Respondent: Abdul Ghani Zelika

Messrs. Abdul Gani Zelika & Amin
Advocates & Solicitors
Tingkat 2, TB286, Blok 30
Kompleks Komersial Fajar
Jalan Haji Karim
91000 Tawau
Sabah.

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