PP v. KAMARUDDIN ABD RAHIM

PP
[2023] MLRHU 234 v. Kamaruddin Abd Rahim pg 1
PP
v.
KAMARUDDIN ABD RAHIM
High Court Malaya, Ipoh

Su Tiang Joo JC
[Criminal Trial No: AA-45B-5-04/2018]
24 February 2023
Case(s) referred to:

Balachandran v. PP [2004] 2 MLRA 547; [2005] 2 MLJ 301; [2005] 1 CLJ 85;
[2005] 1 AMR 321 (refd)
Chan Pean Leon v. Public Prosecutor [1956] 1 MLRH 44; [1956] 1 MLJ 237 (refd)
Chua Beow Huat v. PP [1968] 1 MLRH 239; [1970] 2 MLJ 29 (refd)
Chung Tain Kong @ Chung Fook Chung v. Public Prosecutor [2009] 3 MLRA
332; [2010] 2 MLJ 732; [2010] 2 CLJ 308 (refd)
DA Duncan v. Public Prosecutor [1980] 1 MLRA 55; [1980] 2 MLJ 195 (refd)
Emperor v. Khwaja Nazir Ahmad AIR [1945] PC 18 (refd)
Hamidon Mat Yatim v. Public Prosecutor [1995] 2 MLRH 495; [1995] 3 CLJ 724
(refd)
Ikau Anak Mail v. Public Prosecutor [1973] 1 MLRA 583; [1973] 2 MLJ 153
(refd)
Jayasena v. The Queen [1970] 1 All ER 219 (refd)
Junaidi Abdullah v. Public Prosecutor [1993] 1 MLRA 452; [1993] 3 MLJ 217;
[1993] 4 CLJ 201; [1993] 2 AMR 2209 (refd)
Kamaruddin Abd Rahim v. PP [2022] MLRHU 1053 (refd)
Kamaruddin Abd Rahim v. PP [2022] MLRHU 2324 (refd)
Looi Kow Chai & Anor v. PP [2002] 2 MLRA 383; [2003] 2 MLJ 65; [2003] 1
CLJ 734; [2003] 2 AMR 89 (refd)
Md Zainudin Raujan v. PP [2013] 3 MLRA 351; [2013] 3 MLJ 773; [2013] 4 CLJ
21; [2013] 3 AMR 480 (refd)
Megat Halim Megat Omar v. PP [2008] 2 MLRA 489; [2009] 1 CLJ 154 (refd)
Mickelson Gerald Wayne v. PP [2022] 1 MLRA 656; [2021] 10 CLJ 700 (refd)
Mohamad Nazarie Halidi v. PP & Another Appeal [2019] MLRAU 86; [2019] 4
MLJ 371; [2019] 6 CLJ 61 (refd)
Mohamad Radhi bin Yaakob v. PP [1991] 1 MLRA 158; [1991] 3 MLJ 169;
[1991] 1 CLJ (Rep) 311 (refd)
Muniandy & Ors v. PP [1966] 1 MLRA 495; [1966] 1 MLJ 257 (refd)
Patrick Chau Fook Henn v. Public Prosecutor [2014] 3 MLRA 246; [2014] 3 MLJ
825; [2014] 8 CLJ 14 (refd)
PP v. Ang Ah Hoe [2009] 4 MLRH 668; [2010] 7 MLJ 722; [2010] 9 CLJ 598
(refd)
PP v. Mohd Arabi Aminudden [2017] MLRHU 689; [2017] 9 CLJ 382 (refd)
PP v. Saimin [1971] 1 MLRH 91; [1971] 2 MLJ 16 (refd)
PP v. Ouseng Sama-Ae [2007] 2 MLRA 770; [2008] 1 CLJ 337 (refd)
Prabhakaran v. PP [1965] 1 MLRA 107; [1966] 1 MLJ 64 (refd)
PP
pg 2 v. Kamaruddin Abd Rahim [2023] MLRHU 234
Public Prosecutor v. Ling Tee Huah [1980] 1 MLRH 593; [1982] 2 MLJ 324 (refd)
Public Prosecutor v. Nur Hassan Salip Hashim & Anor [1993] 1 MLRH 517;
[1993] 2 CLJ 551 (refd)
Ricky Purba v. Public Prosecutor [2014] 2 MLRA 140; [2014] 4 MLJ 569; [2014] 3
CLJ 607 (refd)
Salman Kassim v. Public Prosecutor [2023] MLRAU 29; [2023] 2 MLJ 456 (refd)
Surentheran Selvaraja v. PP [2005] 1 MLRA 165; [2006] 1 MLJ 641; [2005] 2 CLJ
264; [2005] 3 AMR 56 (refd)
Syed Ali Syed Abdul Hamid & Anor v. Public Prosecutor [1981] 1 MLRA 194;
[1982] 1 MLJ 132; [1982] CLJ (Rep) 340 (refd)
Tan Cheng Kooi v. PP [1972] 1 MLRH 210; [1972] 2 MLJ 115 (refd)
Teng Howe Sing v. PP [2008] 1 MLRA 645; [2008] 5 CLJ 186 (refd)
Timhar Jimdani Ong & Anor v. PP [2009] 4 MLRA 46; [2010] 3 CLJ 938 (refd)
Tony Rambor v. PP [2022] MLRAU 235 (refd)
Wong Swee Chin v. Public Prosecutor [1980] 1 MLRA 125; [1981] 1 MLJ 212
(refd)
Zulkiple Mohamad v. PP [2022] 2 MLRA 70; [2022] 1 MLJ 479; [2022] 1 CLJ
673 (refd)
Legislation referred to:

Criminal Procedure Code, ss 180(1), (3), 182A, 277, 425
Evidence Act 1950, ss 8, 9, 105, 145, 157
Penal Code, ss 96, 97(a), 300(a), 302, 323
Counsel:
For the prosecution: Ainul Wardah Shahidan (Mohd Fitri Sadarudin with her);
DPPs
For the defendant: Gurbachan Singh Bagawan Singh (Noor Harisha Zakaria with
him); M/s Bachan & Kartar
[Order accordingly.]
JUDGMENT
Su Tiang Joo JC:
Introduction
[1] On 30 December 2022 the accused was found guilty of murdering an

alleged "Ah Long" seeking to collect a debt from him.
Charge
[2] The charge against the accused was that on 11 September 2017 at about
10.40 AM at the five foot way by the stalls of the Majlis Perbandaran Manjung
("MPM"), Teluk Batik, 32200 Lumut, in the District of Manjung in the State
of Perak he had killed Ng Yeong Chian (Identity Card No 880706-08-6853)
("Ng" or "victim" or "deceased") and had therefore committed an offence that
can be punished under s 302 of the Penal Code ("PC'). The charge in its
PP
original language in Bahasa Melayu reads as follows:
("Bahawa kamu pada 11 September 2017, jam lebih kurang 10.40 pagi
bertempat di lorong kaki lima sebelah gerai MPM Teluk Batik, 32200
Lumut, di dalam daerah Manjung, di dalam Negeri Perak Darul
Ridzuan, telah membunuh NG YEONG CHIAN (No.KP:880706-08-
6853), dan dengan itu kamu telah melakukan suatu kesalahan yang
boleh dihukum di bawah s 302 Kanun Keseksaan".
Prosecution's Case
18 witnesses
[3] In their efforts to discharge the burden cast upon them pursuant to s 180(1)
Criminal Procedure Code ("CPC") to make out a prima facie case, and to
unfold the narrative, the prosecution called the following 18 witnesses:
i) SP1 - RF/135800 Kpl Hajizol Bin Taham (Penjaga Stor/

Storekeeper);
ii) SP2 - Siti Hajar Binti Hairi (Ahli Kimia/ Chemist);
iii) SP3 - Sopian Ashafi Bin Mohamed (Ahli Kimia/ Chemist);
iv) SP4 - RF/99437 Kpl Razali Bin Abdullah (Jurufoto/

Photographer):
v) SP5 - RF/199572 Muhammad Hairie Bin Jaf Rosli (Jurufoto/

Photographer);
vi) SP6 - Dr Mohammad Shafie Bin Othman @ Osman (Doktor

Forensik/ Forensic Pathologist);
vii) SP7 - Keng Meng Soon (Sepupu Ng/Ng's cousin);
viii) SP8 - Nor Zilawati Binti Hashim (Peniaga/ Business woman);
ix) SP9 - Zuhari Bin Hashim (Guru/Teacher);
x) SP10 - Nor Akma Binti Kamal (Pengkhidmat SP8/SP8's

employee);
xi) SP11 - Siti Khalijah Binti Abd Shukor (Pengkhidmat SP8/SP8's

employee);
xii) SP12 - G/22027 Insp Gafar Bin Abidin (Penolong Kompeni

Komander/Assistant Officer In Charge of the Company);
xiii) SP13 - Nur Hanisah Binti Mahzuf (Pegawai Perubatan/Medical

Officer);
PP
xiv) SP14 - Tiang Chou Whei (Isteri Ng/ Ng's wife)
xv) SP15 - G/22605 Insp Mira Norain Binti Norashid (Pegawai

Siasatan Bahagian Siasatan Jenayah Seksual D11/Investigating
Officer Sexual Crime Investigation Division D11);
xvi) SP16 - G/18807 Insp Zaffrul Asraff Bin Mohd Puzi (Penolong
Kompeni Komander/ Assistant Officer In Charge of the Company);
xvii) SP17 - G/19428 Mohd Azraan Bin Mohd Mokhtar (Pegawai

Penyiasat Kanan / Senior Investigating Officer); and
xviii) SP18 - G/24771 Nurjihan Binti Jaya (Pegawai Penyiasat/

Investigating Officer).
Brief Background Facts
[4] Keng Meng Soon (SP7) testified that he had lent his car to Ng who had
telephoned him on 11 September 2017 between 9.00 AM to 10.30 AM asking
to borrow his car to go to Teluk Batik to collect a debt from a friend.
[5] SP7's car is a blue Toyota Camry with registration number BFX 801.
[6] At about 11.00 am. on the same day after his calls to Ng went unanswered,
SP7 telephoned Ng's wife Tiang Chou Whei (SP14) asking whether Ng had
called her, only to be told Ng had not.
[7] Worried, SP7 rounded up a few of his friends to search for Ng in Teluk
Batik. They told him that his car which was used by Ng is at the parking area
in Teluk Batik but Ng's nowhere to be seen.
[8] SP7 then departed to Teluk Batik from Ipoh and arrived at about 3.00 pm.
He found his car at the parking lot by the shop lots described as "gerai' or stalls
of MPM at Teluk Batik and started to call Ng's mobile phone. SP7 could hear
a phone ringing from one of the shops there making SP7 suspect the phone
might be inside that particular shop.
[9] SP7 was also informed by the local people that there was a man who had
been beaten.
[10] SP7 saw blood stains in that area and proceeded to lodge a police report at
the Manjung Police Headquarters detailed as Lumut/002578/2017 (P34)
seeking help to find Ng.
[11] Acting upon SP7's police report (P34), Investigating Officer Nurjihan
Binti Jaya (SP18) together with her detectives on duty went to the MPM shop
lots at Teluk Batik. With good detective work, they managed to locate Zuhari
Bin Hashim (SP9), the owner of the shop where SP7 had heard a phone
ringing when he called Ng's mobile phone.
PP
[12] As requested by the police, SP9 opened his shop but nothing was found in
it.
[13] Whilst at SP9's shop, SP7 again made calls to Ng's mobile phone. Guided
by the ringing sound, SP18 and her team successfully tracked down Ng's
mobile phone lying on the roof top of the shop adjacent to SP9's shop. Also
found, were a pair of spectacles (P6A (20B) and one shoe. The matching pair
was found in one of the drains by the stalls at MPM, Teluk Batik.
[14] Following from SP18's investigations, the accused was arrested in the
early morning of 12 September 2017 at about 12:10 am. by Insp Gafar Bin
Abidin (SP12) who lodged his police report Stiawan/9841/2017 (P37).
[15] After the accused was arrested, the police including SP12 was led to a
watery ditch by the side of the road leading to Teluk Batik where SP12 found a
body at about 1.10 am. on 12 September 2017. SP12 said that the body was
fully attired and lying face down in the ditch covered by what looks like a
piece of decaying plywood.
[16] Thereafter, the police including SP12 was led to another place, this time,
it was the backyard of a house at No 26, Jalan Teluk Batik where a baseball-
like piece of wooden stick was found at about 2:30 am. on 12 September 2017.
SP12 seized the wooden stick.
[17] SP18 sent various items to the Chemist Department of Malaysia. After
analysis, traces of Ng's DNA were found on: i) the wooden stick (P6A(9A))
found in the bushes behind No 26, Jalan Teluk Batik, ii) the pair of spectacles
(P6A (20B)) and iii) Ng's mobile phone found together with the spectacles on
the roof top of the shop adjacent to SP9's shop.
First Element Of The Murder Charge - Deceased Was Ng Yeong Chian
[18] The body of the deceased was identified to be that of Ng Yeong Chian by
his wife (SP14) at the Hospital Raja Permaisuri Bainun ("HRPB"), Ipoh (NE p
144) on 12 September 2017.
[19] In the post mortem autopsy report (P32) prepared by the pathologist
(SP6), it was recorded that the deceased was identified by Tiang Chou Whei
(SP14), the wife of the deceased who was with Insp Nurjihan Binti Jaya
(SP18), a police officer.
[20] On 12 September 2017, SP5 together with SP18 had attended at the
Forensic Department of HRPB to take photographs of the autopsy being
carried out on the deceased. SP5 took 86 photographs (P28 (1 -86)).
[21] During her testimony in Court on 21 September 2020, SP14 was shown
photograph (P28 (1)) and identified it as showing the deceased wearing the
clothes when he left the house on 11 September 2017 (NE p 144).
PP
[22] At the same time, SP14 also identified the deceased from the post mortem
autopsy photographs P28 (5) and (6).
[23] Thus, the first element of the murder charge that the deceased was Ng
Yeong Chian was proved beyond reasonable doubt.
Second Element Of The Murder Charge - That Ng Yeong Chian Died Due To
Bodily Injuries Inflicted Upon Him
[24] The post mortem examination of the Ng's body was conducted by Dr
Mohammad Shafie Bin Othman @ Osman (SP6) who is the head of the
Forensic Department of HRPB.
[25] SP6 reported (P32 p 1) that the deceased was brought in dead by the
police on 12 September 2017 at 6:02 am. and he carried out the post mortem
autopsy at 10:15 am. And, the following extensive external injuries totalling 24
suffered by the deceased were observed and found and reported in its original
language (P32 pp 2 to 4) as follows:
"Tanda-tanda Kecederaan Luaran
1. Luka koyak di bahagian atas belakang kepala sedikit di sebelah kiri

berukuran 3 x 1 sm, diriingi dengan kesan lecet di sekitarnya
berukuran 4 x 3.5 sm.
2. Luka koyak di atas kening sebelah kiri berukuran 3 x 1 sm, diiringi

dengan kesan lebam di sekitarnya, merangkumi kawasan seluar 6 x 5
sm.
3. Lebam mata kiri berukuran 6 x 3 sm.
4. Kesan lecet pada batang hidung berukuran 0.5 x 0.5 sm.
5. Luka koyak pada dagu di sebelah kiri berukuran 4 x 1 sm, diiringi

dengan kesan lebam sekitarnya merangkumi kawasan seluas 9 x 7 sm.
6. Kelompok luka koyak dan lecet pada tepian muka sehingga cuping
telinga sebelah kanan, diiringi dengan kesan lebam sekitarnya
merangkumi kawasan seluas 23 x 14 sm.
7. Kelompok lecet serta lebam pada tepian leher sebelah kanan

8. Lebam sekitar telinga kiri berukuran 5 x 3 sm.
9. Lebam tepian leher sebelah kiri berukuran 11 x 8 sm.
10. Lecet di bahagian atas dada sebelah kiri berukuran 2.5 sm x 2 sm.
Beberapa kesan calar halus juga kelihatan di tengah dada.
PP
11. Kesan lecet di hujung bahu sebelah kiri berukuran 5 x 2.5 sm.
12. Dua lebam garis berkembar yang hampir selari di antara satu sama
lain, terletak 4 sm di antara mereka di kawasan belikat kiri, masing-
masing berukuran 31 x 4 sm dan 34 x 4 sm. Terdapat juga kesan lecet
di bawah kawasan belikat kiri tersebut yang berukuran 6 x 3 sm.
13. Kesan lebam yang meliputi kedua-dua bahu di bahagian atas

belakang badan, merangkumi kawasan seluas 35 x 11 sm.
14. Dua kelompok garis-garis lecet di tengah belakang badan sebelah

kiri, masing-masing merangkumi kawasan seluas 18 x 6 sm x 7.5 x 3
sm. Garis-garis lecet kelihatan mengekor ke atas.
15. Kelompok garis-garis lecet di belakang pinggang sebelah kiri

merangkumi kawasan seluas 23 x 7 sm. Garis-garis lecet ini juga
kelihatan mengekor ke atas.
16. Kelompok lecet dan calar balar di tepian luar lengan bawah
sebelah kanan hingga ke belakang siku merangkumi kawasan seluas
30 x 11 sm.
17. Kesan lecet di tepian dalam lengan bawah kanan berukuran 10 x 2

sm.
18. Kesan lecet di belakang tangan kanan berukuran 5 x 4 sm, diiringi

dengan kesan lebam sekitarnya merangkumi kawasan seluas 14 x 7
sm.
19. Lebam di hadapan lengan atas kiri berukuran 1.5 x 1.5 sm.
20. Lecet di tepian luar siku mengunjur hingga ke belakang siku kiri
21. Kesan lecet di tepian luar belakang lengan bawah kiri berukuran
15 x 6 sm.
22. Kesan lecet di belakang sendi jari pertama dan kedua tangan kiri
masing-masing berukuran 1 x 0.5 sm. Kelompok 3 lebam kecil di
belakang siku kiri merangkumi kawasan seluas 3 x 2 sm.
23. Dua lebam pudar pada tepian dalam paha kanan masing- masing 5
x 4 sm dan 4 x 4 sm.
24. Lecet pada lutut kiri berukuran 4 x 3 sm.
Tiada tanda kecederaan luaran lain dikesan."
[Emphasis Added]
PP
[26] From an examination of the inside of the body of the deceased, SP6 found
as follows which in its original language (P32 pp 4 and 5) is described as:
"Pemeriksaan Dalaman
Kepala
Terdapat pendarahan ekstensif di bawah kulit kepala di bahagian

tepian hingga belakang kepala. Otot pelipis kanan dan kiri lebam.
Tengkorak telah patah terbenam di bahagian dasar sebelah kiri yang
mengunjur ke lubang saraf tunjang. Keretakan juga dilihat di bahagian
dasar tengkorak sebelah kanan yang mengunjur hingga ke kepatahan
terbenam di dasar tengkorak sebelah kiri tadi. Otaknya mengalami
pendarahan subaraknoid yang menyeluruh. Terdapat lebam dan
koyak pada otak di tepian kanan dan di belakang otak kecil
(cerebellum) di sebelah kiri. Salur darah dasar otak utuh, tiada
aneursma ditemui. Terdapat pendarahan di dalam rongga-rongga
udara muka (air sinuses). Terdapat keretakan pada tulang pipi
(maksila) sebelah kanan.
Mulut dan Leher
Lidah lebam di hujung. Tulang tekak dan rawan halkum tidak patah.
Kelenjar tairoid tiada kecederaan. Salur darah leher utuh. Otot leher
kanan dan kiri lebam. Tulang tengkuk tidak patah.
Dada
Tiada tulang rusuk yang patah. Rongga dada bersih. Salur pernafasan
dicemari dengan isi perut. Salur tenggorok baik. Kedua- dua paru-paru
sangat kembang dan menunjukkan tompok-tompok pendarahan
sekitar bronkiol. Tiada sebarang lesi atau tanda kecederaan pada paru-
paru. Jantung tidak membesar. Semua arteri koronari bersih,
menunjukkan perubahan atherosklerosis yang minima. Tiada
sebarang parut pada otot jantung dilihat.
Abdomen
Rongga abdomen bersih tanpa kerengsaan atau pengumpulan darah.

Perut mengandungi cecair likat beserta cebisan makanan sebanyak 200
ml. Salur usus berkeadaan baik. Hati tiada kecederaaan atau lesi.
Pundi hempedu tidak membelon. Limpa, kelenjar pankreas, kedua-
dua buah pinggang berkeadaan baik. Pundi kencing kosong. Kelenjar
prostat tidak membesar. Testis tiada lebam. Salur darah utama
abdomen utuh.
Tulang Belakang
Tiada struktur tulang lain yang patah selain kepatahan pada

PP
tengkorak. Tiada sendi yang selisih ditemui.
[Emphasis Added]
[27] Thereafter, SP6 made his findings (P32 p 6) as follows:
"Ringkasan Dan Kesimpulan
Pemeriksaan menunjukkan si mati telah mengalami kecederaan di

kepala di mana otak telah koyak dan lebam serta mengalami
pendarahan. Sebahagian dari pendarahan dari kecederaan kepala
tersebut telah disedut masuk ke dalam paru-paru. Oleh yang
demikian, kecederaan kepalanya yang dialaminya ini telah menjurus
kepada kematiannya.
Kecederaan kepala yang dialaminya adalah berpunca dari hentakan

suatu objek yang tumpul dan keras yang dilakukan secara bertubi-tubi
dengan menggunakan kudrat yang kuat. Objek yang tumpul dan keras
di sini bermaksud apa-apa objek yang tumpul dan keras seperti batu,
kayu dan besi serta plastik keras. Tumbukan tangan dan tendangan
kaki juga tergolong dalam kategori objek tumpul ini.
Terdapat tanda kecederaan di belakang kedua-dua tangan yang

bersesuaian akibat cubaan mempertahankan diri. Selain itu terdapat
kesan lecet serta calar pada belakang badan serta belakang kedua- dua
lengan serta siku yang bersesuaian akibat seretan di atas permukaaan
yang kasar.
Tidak terdapat sebarang tanda penyakit biasa ditemui yang boleh

menyebabkan atau menyumbang kepada kematiannya pada masa itu.
Berdasarkan kepada keadaan mayat, saya menganggarkan si mati

telah mati dalam tempoh 12 hingga 36 jam dari waktu mayat diterima
di Jabatan Forensik, Hospital Raja Permaisuri Bainun."
[Emphasis Added]
[28] SP6 then concluded (P32 p 6) that the cause of death was due to injuries
to the head due to trauma caused by a blunt object and in its original language
he said:
'KECEDERAAN KEPALA AKIBAT TRAUMA OBJEK

TUMPUL"
[29] In his testimony, SP6 identified the 86 photographs (P28 (1-86)) as the
photographs taken of the autopsy carried out by him on the deceased. He said
that the abrasion wounds on the deceased's body showed that the deceased
had been dragged.
PP
[30] When shown the stick (P6A (9A), SP6 opined that it could cause the
injuries suffered by Ng leading to his death.
[31] Under cross-examination (NE p 76), SP6 agreed that an opinion is never a
fact but under re-examination (NE p 77) clarified that his [expert] opinion was
anchored upon facts in the form of injuries found on the body (including the
head) of the deceased leading to his findings and conclusion.
[32] It was put to SP6 under cross-examination that the injuries suffered by the
deceased could have been due to him falling down several times on rough
concrete surfaces whilst fighting. SP6 agreed (NE pp 76 and 77).
[33] However, under re-examination, SP6 opined that based upon the pattern
and distribution of the multiple injuries suffered by the deceased, falls on
rough surfaces will only generally lead to scratches and bruises.
[34] He went on to explain (NE p 78) that given the pattern and distribution of
the injuries suffered by the deceased, the cause of injuries would be more
specific. He pointed, in particular, to two almost identical linear bruises (NE p
78 and P32 p 3 item 12) found on the left shoulder blade one measuring 31 cm
by 4 cm and another 34 cm by 4 cm, leading him to the opinion that the cause
of these injuries would specifically be caused by a hard object which is long
and in the shape of a rod. These injuries, SP6 said, would not be consistent
with injuries suffered by a fall. He said (NE p 78 line 2109):
"laitu suatu objek yang keras memanjang dan berbentuk rod. lanya
tidak bersesuaian akibat jatuh."
[35] By way of comparison with the linear injuries aforesaid, SP6 drew
attention to the bunch of injuries (P32 p 3 item 14) which show scratch marks
along the back of the body towards the left side within an area of 18 cm by 6
cm and 7.5 cm by 3 cm which meant that the body was dragged. These injuries
would not be consistent with injuries suffered by a fall.
[36] The opinion of SP6 was to the effect that the pattern and distribution of
the injuries to the head was that they were caused by being repeatedly hit with
a blunt rod-type object which SP6 confirmed could be like the wooden rod
P6A (9A). He said (NE p 80):
"Sebagai contoh - kepala jika diketuk dengan objek ini, akan

menyebabkan si mati jatuh. Apabila diseret akan menyebabkan
kecederaan-kecederaan yang seperti saya katakan."
[37] SP6 was categorical that the injuries caused by the body being dragged
would not cause the death of Ng. He said (NE p 80):
"S: Maksudnya kecederaan yang kedua - seretan tadi tidak boleh

membawa kepada rumusan di muka surat akhir?
PP
J: Ia tidak memberi rumusan sebab kematian.
S: Bukan penyebab kepada kematian?
J: Ya.
S: Walaupun diseret itu, ia tidak akan membawa kepada kematian.

Kematian itu utamanya disebabkan kecederaan di bahagian kepala?
J: Ya"
[38] Wherefore, the prosecution asserted that the injuries caused to the head of
Ng led his death and the second element of the murder charge has thus been
satisfied.
Third Element - That The Injuries Suffered By Ng Leading To His Death

Were Caused By The Accused Or The Death Of Ng Was As a Result Of The
a\Act Of The Accused
[39] This important element according to the prosecution is in regards to the

actus reus.
[40] The prosecution referred to the brief background facts extracted from the
evidence led and narrated above.
[41] The prosecution asserted that evidence led showed that the accused was at
the crime scene at that particular time and date as per the charge. And, that
there was direct evidence that it was the accused who was the one who had
strongly beaten Ng's head and hand repeatedly using a piece of wooden stick.
[42] And, from the direct evidence of several witnesses as well as

circumstantial evidence, the prosecution asserted they have proved that the
accused had carried out the acts leading to the injuries suffered by Ng resulting
in his death.
[43] Reliance was placed upon the account of an eye witness SP10 who
worked at one of the MPM shop-lots or stalls and who witnessed the incident
after peeping through the opening in between the folding door at close range.
[44] SP10 also saw the accused coming towards the victim holding a baseball-
like stick in his hand.
[45] SP10 had identified P6A(9A) as the wooden stick she saw on the date of
the offence used by the accused to beat the deceased's head and body.
[46] SP10 and her colleague, SP11 heard a dragging and beating sound with
someone groaning in pain at the time of the offence.
[47] They both saw the accused carrying a container of water to the area with
PP
patches of blood to scrub off the blood stains with his feet.
[48] There was overwhelming [direct] evidence particularly from SP10 who
saw the accused swinging the stick in his hand at the victim's head and hand.
[49] Reliance was also placed by the prosecution on the other following
corroborative evidence as well:
i) evidence of Ng's cousin (SP7) who found his car at the parking lot
by the MPM shop-lots where SP10 and SP11 worked;
ii) SP7 after searching Ng managed to track the deceased's cell phone
to the crime scene through its ringing sound;
iii) SP9 who is the joint-employer of SP10 and SP11, testified that he
had gone to the surau in the evening of 11 September 2017 and whilst
there the accused approached him (NE 105) saying he wanted to meet
with SP10 and after SP9 told the accused that SP10 is not available,
the accused told him that:
"Din (the accused) bagitahu saya mungkin Norakma (SP10)

ada lihat pergaduhan dan beritahu dia tidak terlibat
pergaduhan itu dan lalu hanya pegang kayu sahaja. Dia minta
saya bagitahu Norakma yang dia tidak terlibat. Selain itu, dia
ajak saya ke kedai di Teluk Batik untuk ambil telefon yang
bunyinya di dalam kedai saya. Saya tidak ke kedai malam itu
kerana saya ada urusan lain."
iv) there is also scientific DNA evidence given by SP3 (WSP3) which
connected the accused with the deceased based upon the pair of
sunglasses found on roof top of the shop on 11 September 2017, and
found to have the deceased's DNA profile (P18 p 3), which showed
that it belonged to the deceased, and which was most probably thrown
there together with the deceased's cell phone, as both items were found
nearby to each other;
v) the accused's conduct by asking SP9 to collect a cell phone ringing

in SP9's shop which turned out to be that found on the rooftop and
which belonged to the deceased;
vi) the accused asking SP9 to see SP10 saying SP10 may have seen
something and to assert that he was not involved in the fight but
merely holding a wooden stick; and
vii) both v) and vi) above showed that the accused was involved in the
incident leading to the death of the victim;
viii) the murder weapon ie the wood (P6A (9A)) found by SP12 at the
back of the house belonging to the accused's mother carried the DNA
profile of the deceased would lead to the inference that this was the
PP
stick used by the accused to hit Ng.
[50] The prosecution asserted that the above pieces of evidence would form a
set of corroborative evidence in support of the direct evidence that exist against
the accused in this case.
[51] The prosecution also highlighted the following conduct of the accused
which pointed to the guilt of the accused and which are admissible pursuant to
s 8 of the Evidence Act 1950 subsequent to the offence:
i) seeking to wash away the blood stains on the floor with water;
ii) asking SP9 to go to the shop to pick up a cell phone;
iii) asking SP9 that he wanted to meet up with SP10 and suggesting
that SP10 may have seen a fight and asking SP9 to tell SP10 that he
was not involved and he was only holding a stick; and
iv) it was the accused who brought SP12 to the place which turned out
to be the back of the house of his mother on the night of the killing of
Ng which led to the discovery of the stick (P6A 9(A)) in the bushes
carrying traces of the DNA of the deceased.
[52] The prosecution asserted it is, therefore, crystal clear from all of the
abovesaid evidence, that it was the accused's act of hitting the deceased's head
using the stick, and no other reason, that had caused the death of the victim. In
the circumstances, the prosecution asserted that the third element of the
murder charge had been proved.
Fourth Element - That The Accused Intended To Have The Accused Killed
[53] Reference was made by the prosecution to the provisions of s 300 of the
PC which is reproduced hereunder:
Section 300. Murder.
"Except in the cases hereinafter excepted, culpable homicide is

murder:
(a) if the act by which the death is caused is done with the intention of
causing death, or
(b) if 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
PP
(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 likely to cause death, and commits such act without any
excuse for incurring the risk of causing death, or such injury as
aforesaid.
ILLUSTRATIONS
(a) A shoots Z with the intention of killing him. Z dies in consequence.

A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is

likely to cause his death, strikes him with the intention of causing
bodily injury. Z dies in consequence of the blow. A is guilty of murder,
although the blow might not have been sufficient in the ordinary
course of nature to cause the death of a person in a sound state of
health. But if A, not knowing that Z is labouring under any disease,
gives him such a blow as would not in the ordinary course of nature
kill a person in a sound state of health, here A, although he may
intend to cause bodily injury, is not guilty of murder, if he did not
intend to cause death, or such bodily injury as in the ordinary course
of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound sufficient to

cause the death of a man in the ordinary course of nature. Z dies in
consequence. Here A is guilty of murder, although he may not have
intended to cause Z's death.
(d) A, without any excuse, fires a loaded cannon into a crowd of

persons and kills one of them. A is guilty of murder, although he may
not have had a premeditated design to kill any particular individual.
Exception 1 - Culpable homicide is not murder if the offender, whilst

deprived of the power of self control by grave and sudden provocation,
causes the death of the person who gave the provocation, or causes the
death of any other person by mistake or accident.
The above exception is subject to the following provisos:
(a) that the provocation is not sought or voluntarily provoked by the

offender as an excuse for killing or doing harm to any person;
(b) that the provocation is not given by anything done in obedience to

the law, or by a public servant in the lawful exercise of the powers of
such public servant;
(c) that the provocation is not given by anything done in the lawful
exercise of the right of private defence.
PP
Explanation - Whether the provocation was grave and sudden enough

to prevent the offence from amounting to murder, is a question of fact.
ILLUSTRATIONS
(a) A, under the influence of passion excited by a provocation given by

Z, intentionally kills Y, Z's child. This is murder, inasmuch as the
provocation was not given by the child, and the death of the child was
not caused by accident or misfortune in doing an act caused by the
provocation.
(b) Y gives grave and sudden provocation to A. A, on this

provocation, fires a pistol at Y, neither intending nor knowing himself
to be likely to kill Z, who is near him, but out of sight. A kills Z. Here
A has not committed murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and

violent passion by the arrest, and kills Z. This is murder, inasmuch as
the provocation was given by a thing done by a public servant in the
exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does

not believe a word of A's deposition, and that A has perjured himself.
A is moved to sudden passion by these words, and kills Z. This is
murder.
(e) A attempts to pull Z's nose. Z, in the exercise of the right of private
defence, lays hold of A to prevent him from doing so. A is moved to
sudden and violent passion in consequence, and kills Z. This is
murder, inasmuch as the provocation was given by a thing done in the
exercise of the right of private defence.
[Corn PU(B) 589/2022]
(f) Z strikes B. B is by this provocation excited to violent rage. A, a

bystander, intending to take advantage of B's rage, and to cause him to
kill Z, puts a knife into B's hand for that purpose. B kills Z with the
knife. Here B may have committed only culpable homicide, but A is
guilty of murder.
Exception 2 - Culpable homicide is not murder if the offender, in the

exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law, and causes the death
of the person against whom he is exercising such right of defence,
without premeditation and without any intention of doing more harm
than is necessary for the purpose of such defence.
ILLUSTRATION
PP
Z attempts to horsewhip A, not in such a manner as to cause grievous

hurt to A. A draws out a pistol. Z persists in the assault. A, believing
in good faith that he can by no other means prevent himself from
being horsewhipped, shoots Z dead. A has not committed murder, but
only culpable homicide.
Exception 3 - Culpable homicide is not murder if the offender, being a

public servant, or aiding a public servant acting for the advancement
of public justice, exceeds the powers given to him by law, and causes
death by doing an act which he, in good faith, believes to be lawful
and necessary for the due discharge of his duty as such public servant,
and without ill will towards the person whose death is caused.
Exception 4 - Culpable homicide is not murder if it is committed

without premeditation in a sudden fight in the heat of passion upon a
sudden quarrel, and without the offender having taken undue
advantage or acted in a cruel or unusual manner.
Explanation - It is immaterial in such cases which party offers the

provocation or commits the first assault.
Exception 5 - Culpable homicide is not murder when the person

whose death is caused, being above the age of eighteen years, suffers
death, or takes the risk of death with his own consent.
ILLUSTRATION
A, by instigation, voluntarily causes Z, a person under eighteen years

of age, to commit suicide. Here, on account of Z's youth, he was
incapable of giving consent to his own death. A has therefore abetted
murder."
[54] The prosecution asserted that although "intention" is not written or stated
anywhere, however, it can be identified through a person's action and conduct
and cited the case of Chan Pean Leon v. Public Prosecutor [1956] 1 MLRH 44;
[1956] 1 MLJ 237 at 239 where Thomson J explained that:
"Intention is a matter of fact which in the nature of things cannot be

proved by direct evidence. It can only be proved by inference from the
surrounding circumstances. Whether this surrounding circumstance
make out such intention is a question of fact in each individual case. If
a watch is in my pocket, then in the absent of anything else the
inference will be clear that i intent to deal with it as if it were my own
and accordingly i am in possession of it ...... There must be some
evidence that I am doing or having done something with it that shews
such an intention. Or it must be clear that the circumstances in which
it is found shew such an intention. It may be found in a locked room
to which I hold the key or it may be found in a drawer mixed up with
my own belongings or it may be found, as occurred in a recent case, in
PP
a box under my bed. The possible circumstances cannot be set out

exhaustively and it is impossible to lay down any general rule on the
point. But there must be something in the evidence to satisfy the Court
that the person who is physically in a position to deal with the thing as
his own had the intention of doing so."
[55] The learned deputy public prosecutor("DPP") asserted that with the
accused's positive action of holding and swinging the stick and hitting Ng's
head, it could be inferred that the accused intended to cause the death of Ng.
This would fall under the provision of limb (a) s 300 PC.
[56] The head is a vital part. By making a strong swing with a hard stick
towards someone's head repeatedly it would be sufficient enough to show that
the intention of the offender is none other than to cause the death of the
victim.
[57] The pattern and distribution of the injuries at the head indicated that it
was caused by a strong force as per SP6's expert evidence. On top of that, SP6
also opined that the injuries was inflicted incessantly and repeatedly because
the injuries were many and not confined to only one area.
[58] The fact that a strong force was used incessantly at the deceased's head
show that the accused intended to cause death to the deceased.
[59] Moreover according to SP6, there were defensive wounds to both the
deceased's hands (P32 p 3 items 17 to 22) which showed that Ng was trying to
defend himself from being attacked by the accused leading to the inference that
the accused intended to kill the deceased.
[60] Although motive is not a necessary ingredient for the offence of murder,
see Mohamad Nazarie Halidi v. PP & Another Appeal [2019] MLRAU 86;
[2019] 4 MLJ 371; [2019] 6 CLJ 61 (CA), the prosecution pointed to SP7's
evidence stating that on the day Ng borrowed his car to go Teluk Batik, he
wanted to collect a debt and the motive sought to be cast upon the accused
was that he killed Ng to avoid having to repay his debt.
[61] Reliance was also placed by the prosecution on SP9's evidence that the
accused is known in the neighbourhood as having financial problems.
[62] In support of its theory about the accused being motivated by financial
problems brought about by being indebted, the prosecution cited the case of
Prabhakaran v. PP [1965] 1 MLRA 107; [1966] 1 MLJ 64, where the Federal
Court held that:
"Corroborative evidence is not necessarily restricted to the oral

evidence of an independent witness. Corroboration can equally well be
afforded by established facts and the logic of established facts
sometimes speaks even more eloquently than words.
....
PP
....
In an offence of murder, mens rea is a requisite and constituent

element in such a charge. This may be proved either by way of direct
evidence or by way of irresistible inference from circumstantial
evidence. While proof of intention or mens rea is mandatory, lack of
proof of motive may not be necessarily fatal to the prosecution case.
An act of killing may be intentional though for no apparent motive.
That does not make it any less culpable.
....
....
..... However, in a case where the motive exists it is also admissible as

an evidence. In the above case (supra), cash money and cell phone
were missing from the deceased's bedroom, there was also DNA
profiling of the second appellant in the bedroom found showing the
appellants' motive was to rob the deceased.
..... the question of motive is not material where there is direct

evidence of the accused and the acts themselves are themselves
sufficient to disclose the intention of the actor."
[63] The prosecution submitted further that the prime witnesses such as SP7,
SP9, SP10, SP11, specifically the eye witness herself (SP10) had in all stages of
examination-in-chief, cross-examination and re-examination showed through
their demeanour, consistency in their evidence, and that they are credible and
witnesses of truth. Despite being examined continuously in all stages, there
were no material contradictions in their testimony and their credibility were
not shaken.
[64] Instead, their evidence corroborated each other, and had formed an
inference which was not favourable to the accused.
[65] The prosecution went on to assert that the accused's acts in this case had
caused imminent threat and danger to deceased's life, and the death that
happened was something which was not only a likely result, but obviously, it
was the most probable result, and hence it is murder.
[66] Looking at the weapon used ie the stick and the conduct of the accused, it
is clear that the accused had committed the offence with the intention to kill
the deceased and this offence fell under limb (a) of s 300 PC.
[67] After making references to the following cases, the prosecution asserted
there was no break in the chain of evidence, all the exhibits were produced and
identified by the witnesses, and there was no gap in their case and asserted a
prima facie case had been made out that warrant the accused to be called to
PP
enter on his defence to the charge:
i) PP v. Ang Ah Hoe [2009] 4 MLRH 668; [2010] 7 MLJ 722; [2010] 9

CLJ 598 p 602 - the burden is on the accused, and not on the
prosecution, to prove a fact especially within the accused's knowledge;
ii) PP v. Ouseng Sama-Ae [2007] 2 MLRA 770; [2008] 1 CLJ 337 -

demeanour of accused who began shivering and urinating in his pants
and thus showing signs of fear when confronted by authority is to be
taken into account;
iii) Surentheran Selvaraja v. PP [2005] 1 MLRA 165; [2006] 1 MLJ

641; [2005] 2 CLJ 264; [2005] 3 AMR 56 - it is not for the court, at the
close of the prosecution case, to provide a defence for the appellant.
Defence's Case At The End Of The Prosecution's Case
[68] The defence cited s 180(1) CPC on the need for the Court to consider
whether the prosecution had made out a prima facie case at the end of the
prosecution's case.
[69] The following cases were also cited:
i) Looi Kow Chai & Anor v. PP [2002] 2 MLRA 383; [2003] 2 MLJ 65;
[2003] 1 CLJ 734; [2003] 2 AMR 89 (CA) - on how Courts have dealt
with the meaning of prima facie;
ii) PP v. Saimin [1971] 1 MLRH 91; [1971] 2 MLJ 16 - on the need by

the court to undertake a maximum evaluation of the evidence;
iii) Mohamad Radhi bin Yaakob v. PP [1991] 1 MLRA 158; [1991] 3

MLJ 169; [1991] 1 CLJ (Rep) 311 (SC) where the Supreme Court at p
161 -E-G (HC) held as follows:
"In this connection, counsel for the appellant had referred to

us the case of PP v. Saimin & Ors [1971] 1 MLRH 91; [1971] 2
MLJ 16 where Sharma J held that the falsity of the defence
does not relieve the prosecution from proving the
prosecution's case beyond reasonable doubt. We are of the
view that whenever a criminal case is decided on the basis of
the truth of the prosecution's case as against the falsity of the
defence story, a trial judge must in accordance with the
principle laid down in Mat v. PP [1963] 1 MLRH 400; [1963]
1 MLJ 263 go one step further before convicting the accused
by giving due consideration as to why the defence story,
though could not be believed, did not raise a reasonable doubt
in the prosecution case...."
[70] The defence asserted that the prosecution has failed to make out a case
beyond reasonable doubt or in other words a prima facie case on a maximum
PP
evaluation of the prosecution witnesses on the following grounds:
A) Credibility of SP10
i) there was no eye witness to the alleged incident except

SP10;
ii) what was told to SP10 by SP11 about a person being beaten
was [inadmissible] hearsay as SP11 did not see the act of
beating;
iii) SP11 managed Lot 120 whereas SP10 managed Lot 114
and the incident happened near Lot 114 and there was
disruption of electricity supply then;
iv) SP10 only heard the noise of an attack. She did not see any
attack. All she saw was a person lying down. She had testified:
"Lepas itu saya nampak Din datang ke arah mangsa

dan pukul mangsa di bahagian kepala dan tangan
dengan sebatang kayu baseball. Saya nampak dia dari
arah parking kereta."
v) What SP10 saw was only through a narrow opening. She

did not see the face of the victim;
vi) At p 112 NE, the purported identification of the baseball

bat was done through photographs P26(9), (10) and exhibit
P6A(9A) which she identified through photographs. The
defence asserted that these identifications are improper
because identification should be by showing the actual exhibit,
that is, the piece of wood/baseball (sic) which was not done;
vii) there were no traces of DNA on the stick or on the floor of

the stalls to link the accused to Ng to the alleged place and
time of the incident;
viii) the opportunity for SP10 to observe was limited;
ix) in any event, she never saw who was assaulted. Nor did
she identify the person assaulted, even through photographs.
She did not even know the race ("bangsa") of the victim;
x) at p 116 NE, SP10's evidence is a follows regarding the

victim:
"Ya, seperti dalam gambar. Fisikal seperti gambar

tetapi mukanya"
xi) In cross-examination, SP10 said that she did not see any
PP
quarrel between the accused and the other person. She was
seeing "P6 (batang kayu)" (sic- should be P6A(9A)) (Encl 28
para 12) for the first time in Court, which meant that she has
never seen P6 (sic) before she gave evidence in Court. This
meant she never saw P6 (sic) on the day of incident. She
confirmed that in the "photographs"(sic) P19 (9)(sic- should be
P9(9)) "there was not (sic) blood marks" and no "kesan
seretan". (See p 117 NE).
xii) when SP10 asked Din (accused) why he washed the floor
of the stall, Din had spontaneously replied as follows (p 114
NE (bottom): "Saya tanya dia basuh apa, Dia kata basuh air
kencing. Ada orang terkencing di situ."
And, the defence asserted that the accused's reply could be

true.
xiii) (Encl 28 para 16) that from the above evidence, SP10's
evidence being the only eye witness, falls far short and lacking
sufficiency in making a finding that the accused assaulted Ng
Yeong Chian. In fact, the defence asserted that there was not
an iota of such evidence to call for the defence of the accused.
B) Credibility of SP11
i) she was actually not an eye witness at all;
ii) her evidence was that she takes care of stall No 120, which
is far from stall No 114 about 30 feet away (p 119 NE (top));
iii) at p 119 NE (mid), she testified that she heard:
"bunyi ketukan yang kuat dan berulang-ulang. Saya

tidak hiraukan dan sambung kerja saya ... Oleh
kerana bunyinya pelik, saya cari bunyi tersebut
sehingga membawa saya ke gerai 114. Sampai di situ,
saya dengar orang mengerang kesakitan di
kerongkong macam nazak. Lepas itu saya patah balik
ke gerai 120 ... Kami bergegas ke gerai 114. Sampai di
situ, kami tidak dengar apa-apa lagi."
iv) from her evidence, the stark fact remains that she did not
see any assault at all.
C) Credibility of SP7
i) SP7 did not witness the incident at all;
ii) the important aspect of his evidence is that SP7 lodged a

PP
police report which the prosecution purport to be a first

information report which was produced and marked P34;
iii) in P34, SP7 stated:
"dipukul oleh beberapa orang". This was confirmed by

the IO SP18 at p 201 NE (bottom) until p 202 (top)
NE. The IO admitted that she only investigated one
person which was the accused and not as alleged by
SP7 in the police report. This was contrary to the
complaint (P34);
v) it is important to bear in mind the manner of investigations

in this case where SP18 admitted that she only concentrated
on investigating the accused and not as per the report P34 and
this was gravely prejudicial to the accused, such that, he did
not have a fair trial as a result of the shoddy and unfair
investigations;
vi) the prosecution's version and the investigation contradicts

the version in P34 and reliance is placed upon Ah Mee v. PP
[1967] 1 MLRA 291; [1967] 1 MLJ 220 where Justice HT Ong
speaking for the Federal Court held as follows:
"Per curiam: Section 91 of the Evidence Ordinance

applies equally to criminal trials, no less than to civil
proceedings, and it categorically states that "in all
cases in which any matter is required by law to be
reduced to the form of a document, no evidence shall
be given in proof of the terms..of such matter except
the document itself."The report was information
relating to the commission of an offence which "shall
be reduced to writing" pursuant to s 107 of the
Criminal Procedure Code (Cap 6), and s 92 of the
Evidence Ordinance goes on to exclude all parole
evidence seeking to contradict or vary what was set
out in writing."
vii) the above case clearly shows that the contents of P34
cannot be contradicted. In this case, the investigations by
SP18 blatantly contradict the content of P34 and consequently
contradicts the prosecution's case.
D) Credibility of SP18 (IO)
i) the cross-examination of SP18 showed that there was no

proper or through investigation in this case, a capital case,
which is the most serious case;
PP
ii) the investigation was completely lacking and shoddy, see

the evidence given by SP18 under crossexamination of PW 18
from pp 200 until 212 NE where she has in fact admitted that
her investigation was not complete (See p 212 (mid));
iii) reliance is placed upon the Federal Court case of Raqeem

Rizqin Enterprise & Yang Lain Lwn. Ketua Polis Negara & Satu
Lagi [2019] 5 MLRA 475; [2019] 5 MLJ 693; [2019] 8 CLJ 41
on the need for a fair investigation to ensure a fair trial in
conjunction with the accused's constitutional right under art
5(1) of the Federal Constitution where it was held as follows:
"[62] Mengenai kewajipan agensi penguat kuasa

untuk menjalankan suatu siasatan yang adil dan
saksama, dalam kes Nirmal Singh Kahlon v. State of
Punjab & Ors (Civil Appeal Nos 6198-6199 Of 2008),
Mahkamah Agung India berkata di muka surat 27:
Fair investigation and fair trial are

concomitant to preservation of fundamental
right of an accused under art 21 of the
Constitution of India. But the State has a
larger obligation ie, to maintain law and
order, public order and preservation of peace
and harmony in the society. A victim of a
crime, thus, is equally entitled to a fair
investigation.
[63] Kami bersetuju dengan sentimen yang dizahirkan

oleh kedua-dua kes di atas. Hak seseorang tertuduh
untuk mendapatkan perbicaraan yang adil dalam
tempoh yang munasabah adalah dijamin oleh perkara
5(1) Perlembagaan Persekutuan (lihat kes PP v. Boon
Aun [2017] 4 CLJ 41; [2017] 3 MLJ 12)."
iv) therefore, the accused's constitutionally guaranteed right

under art 5(1) of the Federal Constitution had been infringed
by the unfair and shoddy investigation conducted by the IO.
The defence asserted, this alone would warrant an acquittal
for the accused as a fundamental enshrined right has been
breached and infringed which vitiated a fair trial.
E) Lack of medical evidence to prove a vital ingredient of the
charge of murder
i) It was incumbent on the prosecution to prove through

medical evidence that the injury sustained by the victim was
PP
sufficient in the ordinary course of nature to cause death;
ii) In this case, from all the medical evidence both oral and
from the medical reports, this vital ingredient has not been
proven;
iii) Reliance was placed upon the Federal Court case of Tham
Kai Yau & Ord v. PP [1976] 1 MLRA 279; [1977] 1 MLJ 174
where Justice Raja Azlan Shah FJ held at p 176 (LHC) as
follows
"...On the question whether the appellants intended to

cause such bodily injuries as they knew to be likely to
cause death or such as is sufficient in the ordinary
course of nature to cause death, the medical witness
should have been asked to give his opinion on the
nature of the injuries and its likely and natural effects,
but in this respect his evidence is silent.
... In ordinary circumstances we should probably have

had little difficulty in upholding the convictions of the
appellants for murder but in view of the nature of the
medical evidence which we have touched on earlier,
we felt the case might not unreasonably be brought
within the lesser offence of culpable homicide not
amounting to murder, falling within the first part of s
304, Penal Code"
[71] The defence referred to PP v. Saimin (supra) , and asserted that the
prosecution had not proved their case under s 180(1) CPC on a maximum
evaluation of the evidence.
[72] The defence ended by asserting that "suspicion no matter how grave is not
a substitute for evidence" and prayed for this Court to hold that no prima facie
has been made out, and that the accused be acquitted and discharged without
his defence being called.
Court's Analysis And Findings At The End Of The Prosecution's Case
First Element - That The Deceased Was Ng Yeong Chian
[73] From the evidence led from the wife of Ng Yeong Chian who last saw Ng
just one day earlier, she (SP14) had personally and positively identified the
body of Ng Yeong Chian at HRPB on 12 September 2017.
[74] SP14 had again whilst giving her evidence in Court on 21 September 2020
identified the deceased from the post mortem autopsy photographs (P28 (5)
and (6)).
[75] That the deceased was Ng Yeong Chian was not challenged by the
PP
defence.
[76] In the circumstances, the prosecution had proved beyond any reasonable
doubt that the deceased was Ng Yeong Chian.
Second Element - That The Deceased Died As A Result Of Bodily Injuries

Suffered
[77] SP6 was the expert forensic pathologist who carried out the post mortem
autopsy on the deceased. His curriculum vitae (P31) although brief, gave
sufficient particulars such as him having conducted 6,500 autopsies and having
attended at the High and Subordinate Courts 126 times as at 26 May 2019
with his testimonies having been accepted by the Courts.
[78] In his testimony given on 30 May 2019 (NE p 67), he said that a part of
his scope of work was to perform autopsies to investigate and ascertain those
who have died: suddenly, under suspicious circumstances, from unascertained
causes, from suspected criminal elements, or which may have medico-legal
implications.
[79] From his testimony and his curriculum vitae (P31), SP6 is undoubtedly an
expert in the field of pathology with vast experience having conducted no less
than 6,500 post mortem autopsies before conducting the post mortem autopsy
on the deceased on 12 September 2017 (P32). Therefore, this Court had no
hesitation in accepting him as an expert in his field.
[80] In his report (P32 p 1), the deceased was only 29 years old at the time he
was brought in dead.
[81] After undertaking the post mortem autopsy, SP6 found that the deceased
did not have any disease that could have caused or contributed to his death
(P32 p 6) which SP6 estimated to have occurred within 12 to 36 hours of the
body having been received by the Forensics Department of HRPB on 12
September 2017 at 6:02 AM (P32 p 6). This would be consistent with the time
of the cause of death set out in the charge against the accused.
[82] From the extensive injuries found to have been suffered by the deceased,
SP6 had summarised that the deceased had inter alia suffered injuries to his
head with his skull having cracked, the brain was swollen and bleeding with a
part of the bleeding having been sucked into the lungs. These injuries suffered
by the deceased led to his death (P32 p 6).
[83] SP6 went on to opine that the injuries to Ng's head was as a result of
being subjected to being hit repeatedly with great force by a blunt and hard
object (P32 p 6). This object could be a stone, wood, metal or hard plastic.
Punches with the hands and kicks with legs would come within the category of
blunt objects.
[84] It was observed by SP6 that the deceased had injuries to the back of both
of his hands which are consistent with him trying to defend himself (SP32 p 6).
PP
Besides these, there are scratch or abrasion marks on the back of his body
(SP32 p 3 items 14 and 15) as well as the back of both his arms and elbows
(SP32 pp 3 and 4 items 16 to 21) consistent with being dragged along a rough
surface (SP32 p 6).
[85] Under cross-examination, it was put to SP6 whether the injuries as found
by him could have been pursuant to a fight or struggle, and that the deceased
fell against a concrete or rock surface. To this SP6 categorically replied that if a
person fell on concrete, the injury can occur on one place only.
[86] To a follow up question, if the person fell on several places, SP6 said that
injuries could occur on several places.
[87] SP6 agreed that from the photographs of the [alleged] scene of the crime
(P19 I to N) it can be seen of the surface was rough and made of concrete, with
there being a drain and stones in P19 S and P19 T.
[88] SP6 also agreed to a question posed during cross-examination that a fall
can be caused by a powerful punch or push.
[89] Whilst SP6 agreed under cross-examination that an opinion is never a

fact, he clarified under re-examination that his opinion in this case was based
upon facts that he found in the form of injuries on the body, the pattern and
the distribution of the injuries on the body of the deceased.
[90] SP6, under re-examination to questions posed by the learned DPP and the
Court on whether the injuries could be due to a fall said:
"Rujuk laporan saya P32 dibawah "tanda-tanda kecederaan luaran" di

perenggan 12: "Dua lebam garis berkembar yang hampir selari di
antara satu sama lain, terletak 4 sm di antara mereka di kawasan
berlikat kiri". Kecederaan ini agak spesifik penyebabnya. lanya suatu
objek yang keras memanjang dan berbentuk rod. lanya tidak
bersesuaian akibat jatuh."
[91] SP6 made it clear under re-examination (NE pp 80 and 81) that it was
upon carrying out an internal examination of the head of the deceased, that led
to his opinion that it was a combination of all the injuries suffered by the head
(P32 p 4) that was the cause of the death of the deceased. His report on this
aspect is reproduced hereunder:
"Pemeriksaan Dalaman
Kepala
Terdapat pendarahan ekstensif di bawah kulit kepala di bahagian

tepian hingga belakang kepala. Otot pelipis kanan dan kiri lebam.
Tengkorak telah patah terbenam di bahagian dasar sebelah kiri yang
mengunjur ke lubang saraf tunjang. Keretakan juga dilihat di bahagian
dasar tengkorak sebelah kanan yang mengunjur hingga ke kepatahan
PP
terbenam di dasar tengkorak sebelah kiri tadi. Otaknya mengalami

pendarahan subaraknoid yang menyeluruh. Terdapat lebam dan
koyak pada otak di tepian kanan dan di belakang otak kecil
(cerebellum) di sebelah kiri. Salur darah dasar otak utuh, tiada
aneursma ditemui. Terdapat pendarahan di dalam rongga-rongga
udara muka (air sinuses). Terdapat keretakan pada tulang pipi
(maksila) sebelah kanan.
[92] Upon carrying out a maximum evaluation of the evidence, in my

considered view, I find SP6 to be a credible witness and accept his evidence
that the deceased had died as a result of the bodily (including and in particular,
the head) injuries suffered by him, and for the following further reasons:
i) the opinion given by the expert pathologist (SP6) was premised

upon the facts as found by him in the form and pattern of injuries
suffered by the deceased and in particular, that the deceased's head
was subject to repeated forceful trauma by a blunt and hard object;
ii) the repeated and forceful trauma had caused the skull to crack and
the brain to suffer extensive subarachnoid (space between the brain
and surrounding membrane) bleeding;
iii) SP6's opinion that the blunt and hard object is hard, long and in
the shape of a rod is credible as his opinion was premised upon the
pattern of the injuries found on the two almost identical linear injuries
on the left shoulder of the body;
iv) SP6's opinion that the linear injuries is not consistent with a fall is
both logical and credible;
v) the defensive injuries suffered by the deceased at the back of his

hands instead of the front, would lead to the logical inference that he
was being attacked because if he was falling, it would more logical to
have injuries on the palm of the hand(s) rather than the back and if he
had fallen backwards, there would hardly be any injuries to both
hands; and
vi) the deceased was only 29 years old, and SP6 found that the
deceased did not have any disease that could have caused or
contributed to his death.
[93] This Court observed that the Chemist (SP2) had after undertaken an
analysis of two tubes of blood of the deceased delivered to her by Insp Mira
Norain Binti Norashid (SP15) on 26 September 2017, found that there was no
significant level of alcohol detected. And, there was no drugs or poison
detected at all (NE p 21).
[94] Having given a maximum evaluation to the evidence presented and the
submissions presented by both the prosecution and the defence, I find that the
prosecution has successfully proved beyond reasonable doubt that the cause of
PP
death of the deceased was due to the bodily injuries suffered by him.
Third Element - That It Was The Accused Who Caused The Bodily Injuries
To Be Suffered By Ng Yeong Chian Which Led To His Death
[95] SP3 had received 31 items (marked as J1 to J31) including the blood
samples and finger nails of the deceased (J11), and the blood sample of the
accused (J31), a wooden stick with traces of blood on it (J9), a pair of
spectacles with blood stains (J25).
[96] SP3 testified (NE pp 25 to 57) that he received the aforesaid items from
Insp Nurjihan Binti Jaya (SP18). SP18 had earlier taken the accused to the
Emergency Department of Hospital Seri Manjung for his blood sample to be
taken by Dr Nur Hanisah Binti Mahzuf (SP13).
[97] After undertaking the requisite tests for extraction, quantification,

amplification dan electrophoresis of the samples for DNA, SP3 found traces of
the deceased's DNA on the spectacles (P6A (20B)), and the wooden stick
(P6A(9A)). Under cross-examination, she agreed that there were no traces of
the accused's DNA on the wooden stick (J9 which was marked as exhibit
P6A(9A)).
[98] The handphone of the deceased which was heard ringing when SP7 called
it and traced by both SP7 and SP18 (NE p 170) to the roof top of the shop lot
adjacent to that of SP9's and retrieved by SP18 together with the deceased's
spectacles and a side of a shoe was produced and marked as exhibit P6B(1)(3).
[99] I am satisfied from a maximum evaluation of the evidence led from the
following witnesses both from their written witness statements (set out in
parentheses hereafter) and given orally; SP1 (WSP1), SP2 (WSP2), SP3
(WSP3), SP4 (WSP4), SP5 (WSP5), SP12 (WSP6), SP13, SP15, SP16, SP17
and SP18 (WSP7) that there was no break in the collection of the samples and
items which were then sent to the Chemistry Department of Malaysia to be
analysed by SP2 and SP3 and which were later kept in the store (WSP7 para
20) managed by SP1 before they were produced in Court and marked as
exhibits.
[100] Upon undertaking a maximum evaluation of the evidence I am satisfied

that the prosecution had proved beyond reasonable doubt that it was the
accused who had caused the bodily injuries to be suffered by Ng Yeong Chian
which led to his death for the following reasons:
i) there was direct evidence from SP10 (NE pp 111) who knew the
accused as Din with the accused having traded at the MPM shop lot
area for a long time selling burgers and coconut water. This would
lead to the inference that the accused is not a stranger to SP10 who
would be able to easily recognise him more so when the incident took
place at about 10:40 am.;
ii) SP10 had also identified the accused in the dock as "Din" (NE pp
PP
111);
iii) by reason of SP10 having known the accused, this Court has no
hesitation in accepting her being able to identify the accused from
when she peeped from the slit of the folding door at the back of shop
lot 114 which she was looking after;
iv) SP10 was able to give a detailed account of her hearing someone
groaning, and she witnessing the accused approaching the victim who
was lying on the ground and beating the victim on the head and hands
during the midmorning of 11 September 2017 with a baseball-bat-
shaped wooden stick (NE p111);
v) contrary to the defence's [written] submissions at para 12 that SP10

had identified the baseball-bat-shaped wooden stick "through
photographs", SP10 was in fact shown the actual wooden baseball-l
like bat (P6A(9A) to identify which she did;
vi) under cross-examination (NE p 117), SP10 agreed that was the first
time she saw "P6 (batang kayu)", however, this is a minor discrepancy
as SP10 was seeing the actual wooden stick up close in Court as
opposed to seeing it being used by the accused about 10 feet away.
What is relevant is that:
a) SP10 saw the accused hitting the victim with a baseball-like

wooden bat which is an accurate description of the shape of
P6A(9A);
b) SP10's description of the object used by the accused is

consistent with the type of hard rod shaped object which can
inflict linear injuries found by SP6 on the back of the
deceased;
c) the wooden stick P6A (9A) was found to contain the DNA
of the deceased; and
d) the accused had told SP9 that he was holding a wooden

stick earlier that day of 11 September 2017.
vii) SP10's testimony that the victim was wearing a black shirt and
jeans was corroborated by the autopsy report in P9 p 32 (p 2) and the
post mortem autopsy photographs (P2B (1 to 8, and 10 to 13) taken by
SP5;
viii) as for the challenge that what was told to her by SP11 about the
latter hearing someone groaning is inadmissible hearsay, I find this
assertion to be devoid of merit because:
a) firstly, this was told by SP11 to SP10 who heard what was
said and it can be admissible, not for purposes to evidence its
PP
truth, but as evidence that it was said, see the celebrated case
of Subramaniam v. PP [1956] 1 MLRA 59; [1956] 1 MLJ 220
(PC) at 222; and
b) secondly, with SP11 having been produced as a witness to

verify what she had told SP10, what was hearsay, is no longer
hearsay but admissible as direct evidence of what was heard
by SP11;
ix) SP11's testimony about her hearing the strange sound of repeated
forceful beatings (NE p 119) like that of hitting a
mattress/pillow/carpet with her following the sounds till where SP10
was working at shop lot or stall 114 is credible and SP11 was
categorical that at that area, the sounds of someone groaning in pain
and gasping were clear;
x) similarly, SP11's contemporaneous evidence about SP10 telling her

that she recognised the person who was carrying out the beating was
Din and who is trading there, was mutually corroborative and
deserving of great weight;
xi) SP11's testimony of having seen the victim as being dressed in a

black shirt and jeans and identifying the clothes worn by the deceased
in the photographs (P22 (7&8)) taken by SP4 corroborates the
testimony of Ng's wife (SP14) that those were the clothes worn by Ng
that fateful morning and adds further weight to the testimony of SP10;
xii) SP11 did not see any fight at the scene but what she heard is direct
evidence and is consistent with what SP10 saw, see the provisions of s
60 (1) (a) and (b) of the Evidence Act 1950 which are reproduced
hereunder:
"(1) Oral evidence shall in all cases whatever be direct, that is

to say-
(a) if it refers to a fact which could be seen, it must be

the evidence of a witness who says he saw it;
(b) if it refers to a fact which could be heard, it must

be the evidence of a witness who says he heard it;
xiii) SP11's description of the victim that she saw and about what
SP10 told her was not challenged under cross-examination (NE p 123)
and is therefore to be accepted as the truth;
xiv) SP10's later recounting of the events of what she saw to SP8 about
Din beating someone is admissible as contemporaneous statements
which adds to the weight of SP10's testimony;
PP
xv) the testimony of SP10 and SP11 is supported and strengthened by

the testimony of SP9 (NE p 105) who said that the accused
approached him that same evening of 11 September 2017 seeking to
meet his worker (SP10) and suggesting that SP10 may have seen a
fight and seeking to distance himself by saying that he was not
involved and that the accused said he was merely holding a stick (NE
p 105);
xvi) that the accused had told SP9 that he was holding a wooden stick
earlier that day corroborates the testimonies of SP10 who saw what
the accused did and SP11 who heard the sounds akin to that of
someone beating or hitting a mattress, pillow or carpet;
xvii) SP9's testimony that the accused then invited SP9 to go to the
latter's shop to pick up a phone which was ringing in SP9's shop adds
further weight to the evidence against the accused because the phone
and spectacles of the deceased which carry traces of the deceased's
DNA profile (P18 p 3 para 1), and which were later found by SP7 and
SP18 on the roof top (P19- A to D) of the shop adjacent to SP9's shop
No 114 where SP10 was working;
xviii) SP9 was not cross-examined at all on his testimony of what the
accused had told him when the accused approached him at the surau
in the evening of 11 September 2017 (NE p108) and about the accused
having financial problems, and therefore great weight was given to
SP's testimony;
xix) S9's testimony about the conduct of the accused is admissible

pursuant to s 8 of the Evidence Act 1950 and would require an
explanation from the accused pursuant to s 9 of the Evidence Act
1950;
xx) SP7's testimony about finding his blue Toyota car registration
number 801 which he lent to the deceased at the parking lot of the
MPM shop-lots at Teluk Batik, Lumut places Ng at the location of
where SP10 saw the accused hitting someone and where SP11 heard
someone groaning in pain and gasping;
xxi) SP18's testimony (WSP7 para 17) that she returned SP7's Toyota
Camry BFX 801 found in front of stall No 113 at Teluk Batik, Lumut
which is the stall just next to stall no 114 where SP10 saw the accused
hitting the victim's head and hands;
xxii) SP11's testimony (NE p 120) who said:
..Dalam keadaan panik saya dengar lagi bunyi seretan.

Perlahan-perlahan kami keluar ke tempat kejadian, kami
nampak ada seseorang sedang terbaring tidak bergerak
membelakangi saya.
PP
... Masuk ke dalam kedai, masing-masing dalam keadaan

panik. Duduk sekejap dan masa itu saya dengar lagi bunyi
seretan. Kami cuba intai perlahan- lahan dan masih ada lagi
kereta Din di situ.
Selepas kereta Din dah tak ada kami keluar semula ke tempat
kejadian, dekat dengan tempat Din parking. Dari tempat letak
kereta Din ke gerai Kak Nor (kedai Kak Nor facing tempat
kejadian) nampak kesan seretan darah, beberapa tompokan
darah dan kunci kereta Toyota"
xxiii) SP7's car was a Toyota;
xxiv) the above narrative and evidence thus far, in my considered view
clearly placed both the accused and the deceased who borrowed SP7's
Toyota car registration number 801 to go to Teluk Batik at the same
place and time as per the murder charge;
xxv) there is also the evidence by SP12 (WSP6; NE p 134 and 135)
who arrested the accused and was led to:
a) where the deceased was found in a ditch by the side of the

main road Teluk Batik, Lumut, Perak (WSP 6 para 8);
b) the body of the deceased could only be seen after removing

a piece of decaying plywood-like material (NE p 133) which
was covering the deceased leading this Court to infer that the
accused had tried to dispose the body of the deceased and had
attempted to hide the body from view - these acts of throwing
the body in a ditch and covering it, would drive any
reasonable tribunal to infer that the accused was trying to
conceal the evidence and this point to guilt over the alleged
crime;
c) the exact place where the wooden stick with traces of the
deceased's blood on it was found in the bushes as can be seen
in the photographs (P 24 (3 and 4)) taken by SP4 -;
d) SP18 testified that the bushes were behind the house of the
accused's mother (NE p 177) and under crossexamination
repeated that it's the house of the accused's mother (NE p 210)
- this act of throwing the wooden stick into the bushes would
similarly drive any reasonable tribunal to infer that the was
accused trying to conceal the evidence and point to guilt over
the alleged crime;
e) however, the Court observed that surprisingly the learned

DPP had agreed not to rely upon s 37 (sic) Evidence Act to
have the facts of the discovery of the wooden stick and the
PP
body of the deceased from information given by the accused to

SP12 admitted (NE p 127) (see Wai Chan Leong v. Public
Prosecutor [1989] 1 MLRA 109; [1989] 3 MLJ 356; [1989] 1
CLJ (Rep) 171 where the Supreme Court held that:
"Firstly as s 27 is an exception to the prohibition

imposed by the preceding ss 24, 25 and 26 of the
Evidence Act, it should be strictly construed and
applied. Secondly it must be borne in mind that for s
27 of the Evidence Act to apply, the information must
be such as has caused discovery of a fact. In other
words the fact must be the consequence and the
information the cause of its discovery. Moreover the
information must relate distinctly to the fact
discovered. ( Chong Soon Koy v. Public Prosecutor
[1977] 1 MLRA 213; [1977] 2 MLJ 78 Pulukuri
Kotayya v. King Emperor 741.A 65 at p 77)
The expression " fact" is defined in s 3 of the Evidence

Act as follows:
"fact" means and includes-
(a) anything, state of things or relation

of things capable of being perceived
by the senses;
(b) any mental condition of which any

person is conscious.
As pointed out by Suffian LP (as he then was) in

Chong Soon Koy v. Public Prosecutor [1977] 1 MLRA
213; [1977] 2 MLJ 78 their Lordships of the Privy
Council in Pulukuri Kotayya v. King Emperor74 I.A
65 at p 77 had observed that" it is fallacious to treat
'fact discovered' within s 27 as equivalent to the object
produced; the fact discovered embraces the place from
which the object is produced and the knowledge of the
accused as to this and the information given must
relate distinctly to this fact.";
xxvi) instead, the learned DPP chose to rely upon s 8 of the Evidence
Act 1950, but in my considered view the facts of the discovery arising
from the conduct of the accused would nevertheless be admissible
pursuant to the illustrations (e) and (i) of s 8 of the Evidence Act 1950
which are set out hereunder:
Section 8
PP
(1) Any fact is relevant which shows or constitutes a motive or

preparation for any fact in issue or relevant fact.
(2) The conduct of any party, or of any agent to any party, to

any suit or proceeding in reference to that suit or proceeding,
or in reference to any fact in issue therein or relevant thereto,
and the conduct of any person an offence against whom is the
subject of any proceeding, is relevant if the conduct influences
or is influenced by any fact in issue or relevant fact, and
whether it was previous or subsequent thereto.
Illustrations
(e) A is accused of a crime.
The facts that either before or at the time of or after the alleged
crime A provided evidence which would tend to give to the
facts of the case an appearance favourable to himself, or that
he destroyed or concealed evidence or prevented the presence
or procured the absence of persons who might have been
witnesses or suborned persons to give false evidence respecting
it are relevant.
(i) A is accused of a crime.
The facts that after the commission of the alleged crime he

absconded, or was in possession of property or the proceeds of
property acquired by the crime, or attempted to conceal things
which were or might have been used in committing it are
relevant."
xxvii) there are traces of the deceased's DNA having been found on
the wooden stick (P6A(9A));
xxviii) at first blush the evidence in SP3's Chemist report (P18)

suggests there is a contradiction at paras 3 and 4 as to whether traces
of the deceased's DNA were found on this stick (marked as J9);
xxix) however, upon a closer reading, this Court finds that in para 3 of
P18, SP3 was able to obtain DNA samplings from the stick (J20 -
P6A(17) and (17A)) although he was not able to obtain a DNA profile
from the trace of blood found on the stick (J9). This is confirmed by
the table with the title "Ringkasan Keputusan DNA-STR Lampiran
A" in P18 (p 5) showing 10 matching values when the columns under
J9 and J20 are compared, and, therefore, this Court accepted SP3's
evidence and made a finding that traces of the deceased's DNA were
in fact found on the wooden stick marked as J9 and produced as
exhibit P6A(9A));
PP
xxx) SP12's testimony is supported by the photograph in P24 (3C &

4D) showing the bushes where the stick was found and with SP12
having testified that the accused can be seen in the photograph (P24
(5E)) wearing a checked shirt and in handcuffs next to a burning heap.
xxxi) another piece of evidence that the accused was trying to destroy
and conceal evidence was the testimony of SP12 (NE p 135) that he
could not retrieve the clothes the accused wore during the incident
because the accused had burnt his clothes with SP12 saying:
S: Rujuk kepada gambar tersebut
J: Terdapat kebakaran kecil. Gambar saksi di tengah memakai

baju petak-petak, manakala Tertuduh di sebelah saya dalam
keadaan bergari. Gambar ini untuk mencari kayu yang disyaki
terlibat dalam kes ini dan disyaki pakaian yang digunakan
semasa kejadian.
S: Adakah awak menjumpai pakaian yang digunakan semasa

kejadian tersebut?
J: Tiada. Difahamkan Tertuduh telah dibakar.
S: Adakah dalam gambar tersebut?
J: Ada kesan bakar tetapi pakaian tidak dijumpai. Semasa

saya sampai masih ada kesan kebakaran - seperti di Gambar P
24E"
xxxii) the Court observed that SP12 was not subject to any cross-
examination which led this Court to safely accept his testimony to be
credible;
xxxiii) From SP12's testimony, it is clear that the conduct of the

accused, of he: a) having thrown the body of the deceased into the
drain or ditch by the side of the road and concealing it with a piece of
plywood-like material; b) concealing the wooden stick (P6a(9A)) in
the bushes, and c) burning his clothes to avoid his clothes from being
seized for evidence, is admissible pursuant to s 8 of the Evidence Act
1950. An explanation is required from the accused, see Parlan Dadeh
v. PP [2008] 2 MLRA 763; [2008] 6 MLJ 19; [2009] 1 CLJ 717 (FC) at
para [36].
"..... The onus is on the accused to explain his conduct

pursuant to s 9. Such explanation must not be in their barest
possible form, but with a reasonable fullness of detail and
circumstance (see R v. Stephenson [1904] 68 JP 524)....";
xxxiv)The other pieces of evidence on the conduct of the accused

PP
which point to his guilt are the following:
a) the evidence of SP10 who saw the accused cleaning the

patches of blood on the ground; and
b) SP11 who saw the accused going up and down carrying a

container with water.
all point towards the conduct of the accused wanting to hide

his tracks and conduct of being worried about caught and
conduct of guilt which is admissible as relevant evidence
pursuant to s 8 of Evidence Act 1950. see Parlan Dadeh v. PP
[2008] 2 MLRA 763; [2008] 6 MLJ 19; [2009] 1 CLJ 717 (FC)
at para [36] (supra).
xxxv) the evidence clearly shows patches of blood in the area where
SP10 saw the accused hitting the victim, and the story given by the
accused to SP10 that he was washing away urine is not credible and is
rejected;
xxxvi)over and on top of the above pieces of evidence, there is the

testimony of SP10 who clearly said that she did not see anyone else
with the accused at the time she saw the accused hitting the victim
said (NE 112):
"S: Awak nampak dengan jelas?
J: Ya. Saya nampak dengan jelas.
S: Masa awak nampak ada orang lain di situ selain Din dan
lelaki itu?
J: Tiada
xxxvii) that SP18 agreed (NE p 211) that there are no traces of the
accused's DNA on the wooden stick (P6A(9A)) is not sufficient by
itself to exculpate the accused at this stage;
xxxviii) SP18 under cross-examination (NE p 206) said that the two
witnesses, SP10 and SP11 identified the accused at an identification
parade and they did not inform her that they heard the accused
speaking with the victim or anyone else at the time of the incident.
The evidence is reproduced hereunder:
"S: Adakah 2 saksi itu beritahu awak dengan pasti apa yang
dicakap oleh Tertuduh/si mati/orang- orang yang lain pada
masa kejadian? Ada beritahu atau tidak?
J: Tidak dengar percakapan.

PP
S: Tidak dengar percakapan dan tidak beritahu apa yang

berlaku melalui percakapan?
J: Percakapan - tiada
[101] The defence took issue with whether P34 which was lodged by SP7 at
9:53 pm. on 11 September 2017 on the deceased being said to have been
beaten by several people or the missing person's report lodged by SP14 on 11
September 2017 earlier at 6:40 PM ought to be treated as the first information
report.
[102] This Court finds the evidence by SP7 that he heard that Ng had been
beaten by several people is, as asserted by the defence, hearsay but if treated as
a first information report ("FIR") would be admissible to set in motion
investigations by the police.
[103] Indeed, the receipt and recording of the FIR by the police is not a
condition precedent to set in motion a criminal investigation, see "The
Criminal Procedure Code - A Commentary Second Edition by Srimurugan
Alagan" who referred to Emperor v. Khwaja Nazir Ahmad AIR [1945] PC 18 in
support of this principle.
[104] A FIR is not a substantive piece of evidence, as per Chang Min Tat J
(then) in Tan Cheng Kooi v. PP [1972] 1 MLRH 210; [1972] 2 MLJ 115. It can
be used to contradict the maker under s 145 of the Evidence Act 1950 or to
corroborate the maker under s 157 of the Evidence Act 1950, see "The Criminal
Procedure Code - A Commentary Second Edition by Srimurugan Alagan" (supra)
at Note 107-4 at p 175.
[105] It would not make sense at all if any evidence which leads to a charge for
murder cannot be admitted if the first information report do not make mention
of someone having been killed.
[106] SP7 had candidly admitted that he did not witness the incident. In the
above cited book, the learned author had put up a helpful note in Note 107-4
that in Timhar Jimdani Ong & Anor v. PP [2009] 4 MLRA 46; [2010] 3 CLJ
938 the Court of Appeal held that any omission or shortcomings in the said
police report could not be fatal to the prosecution's case or be held to be
materially inconsistent with the prosecution's narration of facts during trial.
[107] In any event, as it turned out, no application was made to rely upon it to
contradict SP7.
[108] Given the overwhelming evidence which points to the guilt of the
accused, with respect, that the accused was arrested within a day speaks well
for the police instead especially with the accused seeking to conceal evidence.
[109] I find that the complaint by the defence about shoddy investigations
having been carried out by SP18 to be in the circumstances, misconceived and
PP
devoid of merit.
[110] In my considered view, if a FIR is not even needed to set in motion a

criminal investigation, nothing turns on whether SP14's missing person report
or SP7's report of Ng having been beaten ought to be treated as a FIR.
[111] Instead, as it turned out Ng did go missing, and was killed and thrown
into a road side ditch with his body concealed from view by a piece of
plywood and the murder weapon concealed in bushes.
[112] I find that the explanations required of the accused pursuant to s 9 of the
Evidence Act 1950 for his conduct as narrated above premised upon the
evidence of SP9, SP10 and SP12 were sorely lacking beyond bare denials.
Given the many patches of blood at the scene, I find that his story of wanting
to wash away urine lacked credibility.
[113] In the circumstances, this Court finds that the prosecution has proven
beyond reasonable doubt the third element for murder, that is, that the accused
had caused the bodily injuries to be suffered by Ng and which led to his death.
Fourth Element - Intention And Motive, If Any
a) Intention - 300(A) Or 300(C) PC
[114] In Zulkiple Mohamad v. PP [2022] 2 MLRA 70; [2022] 1 MLJ 479;

[2022] 1 CLJ 673 where the appellant had swung a baseball bat at the head of
the victim to try to keep her from shouting for help upon seeing him, His
Lordship, Abdul Rahman Sebli (now CJSS) in delivering the unanimous
decision of the Federal Court said:
"[27] The locus classicus on cl (c) of s 300 of the Penal Code is the
Indian Supreme Court case of Virsa Singh v. State of Punjab AIR (45)
1958 SC 465; (1958) 1 MLJ (Crl) 579 which has long been accepted as
part of our law: See for example Tham Kai Yau & Ors v. PP [1976] 1
MLRA 279; [1977] 1 MLJ 174 FC; Mohd Asmadi Yusof v. PP [2010] 2
MLRA 825; [2011] 2 MLJ 302; [2011] 1 CLJ 41 FC; Murugan
Arumugam lwn. PP [2014] MLRAU 547; [2017] 3 CLJ 377 FC;
Rusman Sulaiman v. PP [2012] 3 MLRA 200; [2018] (Supp) MLJ 194;
[2013] 4 CLJ 305 FC; Mohd Azam Raja Abdullah v. PP [2015]
MLRAU 4; [2015] 1 CLJ 1080 CA.
[28] The elements that the prosecution needs to prove in order to

establish a case under cl (3) of s 300 of the Indian Penal Code, which
corresponds with cl (c) of s 300 of our Penal Code, were spelt out by
Vivian Bose J in Virsa Singh and they are as follows:
(i) it must be established that a bodily injury is present;
(ii) the nature of the injury must be proved;

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(iii) 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; and
(iv) it must be proved that the injury of the type described,

made up of the three elements set out above, is sufficient to
cause death in the ordinary course of nature.
[29] Virsa Singh was followed by the Privy Council in Mohamed Yasin
Hussin v. PP [1976] 1 MLRA 603; [1976] 1 MLJ 156, a case that
emanated from the decision of the Court of Appeal of Singapore
which affirmed the decision of the High Court to convict the appellant
of murder under cl (c) of s 300 of the Singapore Penal Code, which is
in pari materia with cl (c) of s 300 of our Penal Code. In that case,
Lord Diplock delivering the judgment of the Privy Council inter alia
held as follows:
... Not only must the act of the accused which caused the
death be voluntary in this sense; the prosecution must also
prove that the accused intended, by doing it, to cause some
bodily injury to the victim of a kind which is sufficient in the
ordinary course of nature to cause death.
[Emphasis Added]
[46] The law is now settled that it is irrelevant and totally unnecessary
to enquire into what kind of injury the accused intended to inflict. As
Vivian Bose J said in Virsa Singh, the question is not whether the
accused's intention is to inflict a serious injury or a trivial one but
whether he intended to inflict the injury that is proved to be present. In
the present case, the injuries that were proved to be present and which
the appellant intended to inflict were the injuries on the deceased's
head which fractured her skull.
[47] It is clear therefore that where the prosecution relies on cl (c) of s

300 of the Penal Code, it is not required to prove intention to cause
bodily injury of a kind that is sufficient in the ordinary course of
nature to cause death. All that is required is proof of intention to inflict
the injury that is proved to be present, irrespective of whether the
injury is grievous or trivial.
[48] In the context of the present case, proof of that intention is the
appellant's deliberate act of hitting the deceased's head with the
baseball bat, which is totally unrelated to the question whether he
intended to cause injury that is sufficient to cause death in the ordinary
course of nature.
PP
[49] In other words, even if the appellant had not intended to cause
injury that is sufficient to cause the deceased's death in the ordinary
course of nature, or had no knowledge that death would be the likely
result, his act would still be murder under cl (c) of s 300 of the Penal
Code if otherwise his act of hitting the deceased's head with the
baseball bat was intentional and not accidental, or that he intended to
cause some other kind of injury.
[50] It follows that where the case falls under cl (c) of s 300 of the
Penal Code, there is no requirement for the prosecution to prove
intention to cause death under cl (a), or knowledge of the likelihood of
death under cl (b) or knowledge of the imminent danger of the act
under cl (d). What the prosecution needs to prove in order to bring the
case under cl (c) of s 300 is to show that the injury proved to be present
was caused intentionally and not accidentally and that the injury was
sufficient in the ordinary course of nature to cause death."
[115] In the very recent Court of Appeal case of Salman Bin Kassim v. Public
Prosecutor Criminal Appeal [2023] MLRAU 29; [2023] 2 MLJ 456, the
appellant had knifed his girlfriend in the neck and upper chest and the trial
judge held that the appellant had the requisite intention to kill her and had
convicted the appellant pursuant to s 300(a) PC. At paragraph [45] His
Lordship Lee Swee Seng JCA said:
"Even if the learned Judge had erred in his finding in what is

apparently under s 300(a) of the Penal Code, we find that the nature
and extent of the injuries inflicted are such that it would also come
under s 300(c) in that:
"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."
[46] The Indian Supreme Court in Virsa Singh (supra) in dealing with
the equivalent of our s 300(c) of the Penal Code explained as follows:
"In considering whether the intention was to inflict injury

found to have been inflicted, the enquiry necessarily proceeds
on broad lines as, for example, whether there was an intention
to strike at a vital or a dangerous spot, an whether with
sufficient force to cause the kind of injury found to have been
inflicted."
[116] In the present case, the prosecution had sought to rely upon s 300(a) of
the Penal Code.
[117] The prosecution asserted that the pattern and distribution of the injuries
at the deceased's head indicate that they were caused by a strong force and this
PP
was the opinion of SP6's expert evidence.
[118] On top of that, SP6 also confirmed that the injuries was inflicted
incessantly and repeatedly. And, the injuries were many and not confined to
one area only.
[119] The fact that a strong force was used incessantly at the deceased's head
shows that the accused intended to cause death to the deceased. Moreover,
according to SP6, there were self-defence injuries on the back of the deceased's
hands which would show that the deceased was being attacked by the accused.
[120] Hence, I agree with the prosecution's assertion that the accused's action
at that particular time shows his only intention was to kill the deceased.
[121] In any event, guided by the authorities of Zulkiple (supra)Mohamad

(supra) and Salman bin Kassim (supra) the acts of the accused would also come
under section 300(c) PC (supra).
b) Motive
[122] This Court agrees with the assertions made by the prosecution premised
upon the authority cited of Mohamad Nazarie Halidi (supra) that motive is not
a necessary ingredient for murder but it is admissible evidence as part of
corroborative evidence.
[123] SP9 testified that the accused told him that as of late the accused has
several debts and his testimony (NE p 108) is reproduced hereunder:
S: Awak beritahu kenal Din lebih kurang 20 tahun. Sepanjang

pengetahuan awak, adakah Din ada apa-apa masalah?
J: Di peringkat awal kenal saya tidak nampak apa-apa masalah. Di

akhir- akhir ini beliau ada beberapa hutang, itu sahaja.
S: Bagaimana awak tahu dia ada masalah hutang?
J: Dia sendiri beritahu saya.
S: Berapa lama dia ada masalah hutang?
J: Dalam pengetahuan saya mungkin dalam 4-5 tahun atau pun

kurang lagi sebelum kejadian.
(NE p 18 line 2925 - 2931)
[124] SP7's testimony was that Ng had told him he was going to collect a debt
from a friend.
[125] Under cross-examination, it was put to SP7 (NE p 89) that the deceased
was lending money to other people. And, SP7 agreed that Ng told him that he
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wanted to meet someone to collect a debt.
[126] It was also put to SP18 under cross-examination that the deceased was
an "Along" who lends money without a license (NE p 207) and that he was a
gangster (NE p 209).
[127] From the aforesaid, this Court agrees with the prosecution that there is
sufficient circumstantial evidence to lead to the inference that the accused was
motivated to kill Ng to avoid paying his debt.
Side Note
[128] Before concluding on this Court's findings at the end of the prosecution's
case it is opportune as this juncture to set out the events that took place prior
to the Court making its decision at the end of the prosecution case.
[129] I had taken over the conduct of the trial on 21 September 2020 after
twelve (12) witnesses had given their evidence (NE pp 138, 139 and 167).
[130] After the prosecution had closed their case and with written submissions
having been presented, I had relying on s 425 of the CPC sought to have four
primary witnesses namely SP7, SP9, SP10 and SP11 recalled.
[131] The defence objected and called upon I to reconsider recalling them. The
prosecution was [initially] of the same view as the defence on this objection
but conceded that this Court has the power to do so under s 425 of the CPC.
[132] The objection by the defence was followed with an application (Encl 1 in
Criminal Application AA-44-68-12/2021) seeking to recuse me from
continuing with the case. This application was mentioned on 17 December
2021 and fixed for hearing on 19 January 2022.
[133] After hearing both learned counsel for the accused/applicant and the
learned DPP on 19 January 2022, and after having gone through the notes of
evidence and matching the same with the benefit of reviewing the audio visual
recording of the proceedings, I reconsidered my initial view and decided to
accede to the defence's request of not recalling the four witnesses. I then
proceeded to strike out the accused's application for I to recuse myself or that I
be recused from continuing with the trial, being content with the quality of the
audio visual recording of these four witnesses.
[134] The matter was then scheduled for continued trial on 27 January 2022 to
hear the presentation of submissions at the end of the prosecution's case.
[135] On 27 January 2022, both the prosecution and the defence were content
to rely wholly on their written submissions. I had then stood down the matter
for decision and thereafter, held that the prosecution had made out a prima
facie case, and in accord with this Court called upon the accused to enter on
his defence to the charge pursuant to s 180(3) CPC.
PP
[136] The trial was then fixed to be continued on 30 March 2022 and 30 May
2022. However, the trial date of 30 March 2022 was vacated as the learned
DPP had a family emergency and the trial was rescheduled to continue on 31
May 2022, 17 June 2022 and 21 June 2022.
[137] On 31 May 2022, the learned counsel for the defence informed the Court
that just that morning upon he walking into the Court for the continued trial,
he was informed by the accused that the accused wanted to appeal against my
decision made on 19 January 2022 where I had agreed with him to reconsider
recalling the four witnesses and had struck out the accused's application to
have I recused or alternatively that I be recused from continuing with the trial.
[138] The accused had applied for and was granted an extension of time from
the Court of Appeal to appeal against this Court's decision made on 19
January 2022. My grounds for the decision made on 19 January 2022 has been
published as Kamaruddin Abd Rahim v. PP [2022] MLRHU 1053.
[139] The accused had in his application at the Court of Appeal for an
extension of time to appeal against the decision of this Court of 19 January
2022 included an application for this trial to be stayed pending his appeal at
the Court of Appeal. I was informed by learned counsel for the accused that
this application for stay was dismissed by the Court of Appeal on 20
September 2022.
[140] Whilst his application for an extension of time to appeal against this
Court's decision of 19 January 2022 and to stay the trial in this Court was
pending in the Court of Appeal, the accused had also applied in this [High]
Court to stay the trial pending the disposal of his appeal at the Court of
Appeal.
[141] This Court having been apprised that the accused's application to stay
the trial pending his appeal to the Court of Appeal against the decision of this
Court of 19 January 2022 had been dismissed by the Court of Appeal on 22
September 2022, this Court had on 27 September 2022 amongst other reasons,
accordingly struck out his application to stay the trial in this Court. The
accused appealed and the grounds for striking out his application to stay the
trial has since been published in Kamaruddin Abd Rahim v. PP [2022]
MLRHU 2324.
[142] The trial was then continued on 27 September 2022.
Conclusion At The End Of The Prosecution's Case
[143] In Balachandran v. PP [2004] 2 MLRA 547; [2005] 2 MLJ 301; [2005] 1

CLJ 85; [2005] 1 AMR 321 the Federal Court speaking through Augustine
Paul JCA (as he then was) held that:
"A prima facie case is therefore one that is sufficient for the accused to
be called upon to answer. This in turn means that the evidence
adduced must be such that it can be overthrown only by evidence in
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rebuttal. The phrase "prima facie case" is defined in similar terms in

Mozley and Whiteley's Law Dictionary, 11th edn as:
A litigating party is said to have a prima facie case when the evidence
in his favour is sufficiently strong for his opponent to be called on to
answer it. A prima facie case, then, is one which is established by
sufficient evidence, and can be overthrown only by rebutting evidence
adduced by the other side.
The result is that the force of the evidence adduced must be such that,
if unrebutted, it is sufficient to induce the court to believe in the
existence of the facts stated in the charge or to consider its existence so
probable that a prudent man ought to act upon the supposition that
those facts exist or did happen.
.....
Since the court, in ruling that a prima facie case has been made out,
must be satisfied that the evidence adduced can be overthrown only by
evidence in rebuttal it follows that if it is not rebutted it must prevail.
Thus if the accused elects to remain silent he must be convicted. The
test at the close of the case for the prosecution would therefore be: Is
the evidence sufficient to convict the accused if he elects to remain
silent? If the answer is in the affirmative then a prima facie case has
been made out. This must, as of necessity, require a consideration of
the existence of any reasonable doubt in the case for the prosecution.
If there is any such doubt there can be no prima facie case.
As the accused can be convicted on the prima facie evidence it must

have reached a standard which is capable of supporting a conviction
beyond reasonable doubt. However it must be observed that it cannot,
at that stage, be properly described as a case that has been proved
beyond reasonable doubt. Proof beyond reasonable doubt involves
two aspects. While one is the legal burden on the prosecution to prove
its case beyond reasonable doubt the other is the evidential burden on
the accused to raise a reasonable doubt. Both these burdens can only
be fully discharged at the end of the whole case when the defence has
closed its case. Therefore a case can be said to have been proved
beyond reasonable doubt only at the conclusion of the trial upon a
consideration of all the evidence adduced as provided by s 182A(1) of
the Criminal Procedure Code. That would normally be the position
where the accused has given evidence. However, where the accused
remains silent there will be no necessity to re-evaluate the evidence in
order to determine whether there is a reasonable doubt in the absence
of any further evidence for such a consideration. The prima facie
evidence which was capable of supporting a conviction beyond
reasonable doubt will constitute proof beyond reasonable doubt."
[144] As mentioned, after having given a maximum evaluation to the evidence

led, and after considering the submissions of both the prosecution and defence,
PP
I found that the prosecution had made out a prima facie case against the
accused and called upon him to enter on his defence.
Defence's Case
Election - Sworn Testimony
[145] At the time of calling upon the accused to enter on his defence, he was
informed of the three options available to him namely, to give sworn
testimony, unsworn testimony from the dock or to remain silent, and that
irrespective of whichever option he chooses he was entitled to call any number
of witnesses and to produce evidence in support of his defence.
[146] The accused elected to give sworn testimony.
[147] He tendered a witness statement (PSD1) dated 27 September 2022.
[148] In his witness statement, he said that sometime in August 2017 he

borrowed RM1,000.00 from Ng. He was levied interest of RM400.00 and was
required to pay RM40.00 on a daily basis for 35 days.
[149] On or about 6 September 2017, he had to visit his relatives in Malacca.

He closed his stall for three days from 7 September 2017 and for these three
days he did not get any income.
[150] In the morning of 11 September 2017 at about 11:00 am. he opened his
stall. There was no one around and about 15 minutes later, Ng came. Ng had
an angry demeanour and caused a disturbance at his stall and scolded him in a
loud voice and continuously insulted him, his mother, and his siblings.
[151] The accused (SD1) said Ng used expletives and vulgarities on him as
follows:
"puki lu punya emak, lu bangsat punya orang, lu takda malu punya

orang, lu bukan Manusia, lu adalah orang binatang, lu orang melayu
tidak boleh percaya."
[152] SD1 said he had paid RM40.00 that day but Ng wanted the two days'
arrears and was not satisfied with his answer that he had to go to Malacca as
his relative fell sick.
[153] SD1 said that Ng continued to insult him repeatedly despite him
promising to pay a bit more in the afternoon after he has done his business and
able to get his collections from his business. Ng was, however, still angry and
allegedly said:
"lebih baik lu kasi saya konkek lu punya bini, apa macam punya mak
yang beranakkan binatang macam lu."
[154] The accused then said that he could not then take the insults and he
PP
became very angry and lost his control and attacked Ng but Ng was bigger and
stronger than him and Ng pushed him and he (SD1) fell.
[155] SD1 continued that despite he having fallen, Ng still came forward to
attack him and it was then he found a stick which was in the drain and fearing
to be badly beaten by Ng, he immediately got up and taking the stick he hit Ng
with the stick which happened to be there. He hit Ng's body and Ng fell.
[156] SD1 said that he hit Ng only once and after Ng fell, he did not hit Ng
any further.
[157] However, at that time, an Indian man who was sweeping that area and
who worked for MPM was there. After the stick he had used fell after SD1 hit
Ng, the Indian man took the stick and hit Ng several times on the head.
[158] After that Ng did not get up and was bleeding. Then the Indian man said
he had also borrowed money from this Chinese man.
[159] The accused said that after hearing the insults especially about his wife,
mother and siblings whom he loved very much, he lost control as he was so
angry and upset with Ng and he felt ashamed.
[160] SD1 said he was too angry and he did not even know what he did.
[161] During the incident, he said he lost control because he felt humiliated,
upset, dan very ashamed.
[162] At around the time of the incident, two stalls located opposite were being
opened.
[163] About 30 minutes after the incident, he came to his senses and was able
to control himself. He panicked and he and the Indian man then placed Ng in
his car to take him to the Manjung Hospital for treatment.
[164] Whilst on the way, he felt that Ng had died as he fell silent and was not
breathing. Before that he was screaming in pain. SD1 stopped his car, and
checked Ng's breath. He found that Ng was no longer breathing and he was
scared that Ng had died.
[165] SD1 then said he became panic-stricken and he stopped his car and took
the corpse and placed it in the drain by the road and he went home.
[166] SD1 said he had no intention to kill Ng but he lost control and was very
angry and ashamed due to the terrible insults and that any honourable person
would not control himself.
[167] The accused summarised his defence by saying that he hit Ng because he
lost control and he was very angry and to defend himself from Ng who was
stronger and bigger than him.
PP
[168] The accused said that in his entire life he had never been so humiliated,
insulted and shamed in this manner. He apologised for the incident and he is
troubled that a human life has been lost. He ended by saying that he had no
intention of killing Ng.
[169] Under cross-examination:
i) it was put to the accused that Ng having cast insults on him was
made up by him because none of the [prosecution's] witnesses who
had given evidence had heard it - the accused denied this;
ii) it was put to the accused that his story about being attacked by Ng
was not true as he did not suffer any injuries and had not gone to seek
any treatment for any injuries - he denied this;
iii) it was put to the accused that he had made up the story of an
Indian man who had allegedly beaten Ng whilst Ng was lying on the
ground - the accused denied this;
iv) the accused said he know the Indian man but was not close, that
the Indian man was a contract cleaner who worked there for about a
month, and the cleaners are regularly changed;
v) the accused was not able to give the name of the Indian man,
vi) the accused denied he took water to wash away Ng's blood which
was on the floor;
vii) the accused denied that after washing away Ng's blood, he took
Ng's body and threw it into a drain;
viii) the accused denied that he then covered Ng's body with an old
piece of plywood;
ix) he denied that he then went to his mother's house, took off his hat,
clothes, trousers and shoes that he wore and immediately burned these
clothing behind his mother's house;
x) the accused denied that he then went to his uncle's goat pen and
threw away a rod-like wooden stick which he used to beat up Ng;
xi) he admitted that he knows SP9 and SP10 and that they had
attended Court to give evidence but denied that after having thrown
away the stick, he had gone to see SP9 at the surau to speak with SP9;
xii) the accused denied that he had sought the permission of SP9 to see
SP10;
xiii) the accused denied that his intention of wanting to see SP10 was
to tell SP10 that she may have seen a fight earlier and wanted to tell
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SP10 that he was not involved;
xiv) the accused denied that he had invited SP9 to go to the shop to
retrieve a mobile telephone which was ringing in SP9's shop;
xv) when shown the photographs in P22 (A-K) and asked that they
show where he had thrown the body of the deceased and that the body
was hidden from view by a piece of rotten plywood, SD1 said he could
not remember as it was so long ago but he admitted that he had
thrown the body of Ng, just that he could not remember where he had
thrown the body;
xvi) the accused when shown the photograph P24 (5E) admitted that it
shows the house of his mother and that it was taken in the area of the
goat shed and to a question by the Court during his re-examination, he
said that he is in this photograph;
xvii) he denied the photograph depicts the place where he was burning
his clothes; and
xviii) although the accused denied that the stick shown in the
photographs in P24 (C3 and D4) was the stick used by him to hit Ng
and thrown by him into the bushes shown in the photographs, he
admitted when shown the round baseball-like wooden stick (P6A
9(A)) recovered from the bushes that this was the stick he used to hit
Ng.
[170] Under re-examination:
i) he said because he was remanded since he was arrested, he did not

have the opportunity to look for the Indian man to come to Court as a
witness;
ii) when clarification was sought on his averment in his witness

statement where he said that he was pushed and he fell down and
whether he was pushed or attacked, he said he was pushed and
attacked by Ng; and
iii) he said he was pushed and fell down twice before he was attacked
by Ng and did not suffer serious injuries, only bruises, and therefore he
did not seek treatment.
[171] Premised upon the above, the defence asserted in his written submissions
(Encl 296) that there was absolutely no mens rea to commit murder. The
defence raised three distinct defences, that of private defence under ss 96 and
97 (a) PC, that of grave and sudden provocation and sudden fight. Reliance
was placed on the following authorities:
i) Ah Mee v. PP [1967] 1 MLRA 291; [1967] 1 MLJ 220 (FC) where it

was held that s 91 of the Evidence Act 1950 applies to criminal trials,
PP
no less than civil trials. With SP7 having lodged a police report (P34)
that the people in the locality had said that they saw a man having
been beaten by several people ("beberapa orang"), no parole evidence
can be given to contradict it. Thus, this police report of SP7
corroborates the accused's evidence that Ng was hit by an Indian man.
In other words, not by the accused alone.;
ii) Tham Kai Yau & Ors v. Public Prosecutor [1976] 1 MLRA 279;
[1977] 1 MLJ 174 (FC) for the principle that the medical evidence
should be sufficient to show whether the appellants intended to cause
such bodily injuries as they knew likely to be likely to cause death or
such as is sufficient in the ordinary course of nature to cause death and
that in this case the medical evidence was insufficient.;
iii) Public Prosecutor v. Yeo Kim Bok [1970] 1 MLRH 117; [1971] 1
MLJ 204 (HC) where it was held the defence of self-defence was met
because there was a reasonable apprehension of danger to the life of
the accused when the deceased rushed at him with the knife in his
hand and at that stage he had the right of private defence which
extended even to the killing of the deceased. In this case, Sharma J
quoted with approval the following passages from "Culpable
Homicide and Legal Defence" by K. C Mehrotra:
"The author goes on to give some tests to serve as guidelines

to determine whether a person has or has not exceeded his
right of private defence or has inflicted more harm than was
necessary in the exercise of his right of private defence and
again I quote from the same work:
"(1) A defender need not wait till he is actually

attacked.
(2) He is not obliged to run away, the law does not

require a citizen to behave like a coward.
(3) A defender may pursue the aggressor. A defender

is not only not obliged to retreat but he may even
pursue his enemy till he finds himself out of danger.
(4) If the defender is unable to escape, he may turn

round and attack.
(5) A defender need not coolly reflect on his right or

measure his blows. The law does not require that the
accused should have exercised a calm and cool
judgment and that he should weigh his acts in golden
scales.
(6) A defender can make sure that his defence is

effective.
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(7) A defender may inflict injuries on his aggressor for

the purpose of defence as well as for preventing
further aggression. It is not only the injuries already
inflicted but the injuries the attacker might inflict if the
defender does not exercise his right of self-defence that
must be taken into consideration. Even if the
aggressor is disarmed, if there is a possibility of his
wresting the weapon from the defender, the latter has
a right to use violence, but of course not to cause his
death. But he can even cause death if one of the two
aggressors is still armed. It would be circumscribing
the right of private defence of the body with
meticulous and unjustifiable restrictions if it were to
be held that, when the person attacked had managed
to obtain the weapon from the grasp of the attacker,
he was not to be allowed to use that weapon in his
defence in order to prevent the attacker from regaining
possession of it."
[172] The defence concluded by asserting that "in this case, no offence is
committed by the Accused in view of the defences above under any section of
the Penal Code and by his defence, the accused is entitled to an outright
acquittal". Alternatively, if the Court does not agree then, the defence asserted
that at best, it is merely a case of assault or voluntarily causing hurt under s
323 PC where the punishment is with imprisonment of up to one year, or with
fine, which may extend to two thousand ringgit or with both.
Prosecution's Reply
[173] The prosecution pointed out that the Supreme Court had in Junaidi Bin
Abdullah v. Public Prosecutor [1993] 1 MLRA 452; [1993] 3 MLJ 217; [1993] 4
CLJ 201; [1993] 2 AMR 2209 held that:
"By calling an accused to enter his defence, the trial judge must on
evaluation of the evidence, have been satisfied that the prosecution
had, at the close of the prosecution's case, established a prima facie
case which, if unrebutted, would warrant a conviction of the accused."
[174] The prosecution asserted that from the evidence given by the accused,
his testimony is consistent with the evidence given by the prosecution in that:
i) the accused had beaten Ng by using the wooden stick P6A (9A);
ii) after beating Ng, the accused threw the corpse of the deceased into
the drain by the road side; and
iii) at the time the incident took place, two stalls nearby were open.
PP
[175] The prosecution asserted that the story of the accused is not reasonable
and raised an inference that did not favour the accused. The defence is that of
one of bare denial. Not only that, it was in the nature of an afterthought. This
is because many questions and issues were not raised and put to the witnesses
for the prosecution and raised only during the defence stage. The truth and
veracity of the accused's story is doubtful let alone able to challenge the
prosecution's case.
[176] That the defence is a bare denial is borne out by the fact that the defence
had not produced any evidence to support his story. The Indian man, whom
the accused was said to know and that he worked as a contract sweeper for the
local council, MPM, was not called to testify. The accused ought to trace and
call this Indian man as his witness.
[177] On his allegation that he was pushed and fell twice with him suffering
bruises, again this defence is a bare denial as it was never informed to the
arresting officer (SP12) and the investigating officer (SP18). The incident
happened on 11 September 2017 with the accused arrested at 2.22 am. on 12
September 2017 but the accused never asked to be brought for treatment.
[178] If indeed it is true that Ng had insulted him in the manner that he had
said, and he had hit Ng only once on the body, and it was an Indian man who
had hit Ng's head until Ng could not get up and was bleeding, the accused
need not have worried and thrown Ng's body into the drain.
[179] The accused's story is inconsistent with that of SP10.
[180] From a consideration of the evidence of SP10 and SP11, it is clear that
they did not hear any insults thrown at the accused. Thus, this is but a mere
afterthought put up by the accused.
[181] The prosecution cited Muniandy & Ors v. PP [1966] 1 MLRA 495; [1966]
1 MLJ 257 where Ong Hock Thye speaking for the Federal Court gave this
sage advice:
"In our view, being unshaken in cross-examination is not per se an

allsufficient acid test of credibility. The inherent probability or
improbability of a fact in issue must be the prime consideration."
[182] Thus, to the mind of the learned DPP who without saying in so many
words, asserted that the accused had given false statements and in Syed Ali bin
Syed Abdul Hamid & Anor v. Public Prosecutor [1981] 1 MLRA 194; [1982] 1
MLJ 132; [1982] CLJ (Rep) 340 (FC) Saleh Abas FCJ said:
"In other jurisdictions a false statement made by an accused person

concerning the surrounding circumstances in which an offence was
committed whilst he had an opportunity to commit the offence can be
regarded as a corroboration of the evidence against him. Eade v. The
King (1924) 34 CLR 154 and also Regina v. Lucas (Ruth) [1981] 3
WLR 120. We accept the decisions in these cases to be good law."
PP
[183] A simple denial of the evidence led against the accused without other
proof to reasonably dislodge the prosecution's evidence is not sufficient, see
DA Duncan v. Public Prosecutor [1980] 1 MLRA 55; [1980] 2 MLJ 195 (FC),
Public Prosecutor v. Ling Tee Huah [1980] 1 MLRH 593; [1982] 2 MLJ 324
(HC), Public Prosecutor v. Nur Hassan Bin Salip Hashim & Anor [1993] 1
MLRH 517; [1993] 2 CLJ 551 (HC).
[184] The nature of the defence having been sprung upon the prosecution and
not put to any of the witnesses for the prosecution ought to be dismissed as
mere afterthoughts, see Hamidon bin Mat Yatim v. Public Prosecutor [1995] 2
MLRH 495; [1995] 3 CLJ 724 (HC), Wong Swee Chin v. Public Prosecutor
[1980] 1 MLRA 125; [1981] 1 MLJ 212 (FC), Chua Beow Huat v. PP [1968] 1
MLRH 239; [1970] 2 MLJ 29 (HC), Megat Halim Megat Omar v. PP [2008] 2
MLRA 489; [2009] 1 CLJ 154 (CA).
[185] Thus, the prosecution asserted that the defence has failed to raise any
reasonable doubt and the Court has no other option but to convict the accused
on the charge brought against the accused under s 300 PC and punishable
under s 302 PC as:
i) the defence cannot be believed at all;
ii) the defence is one of a 'bare denial'; and
iii) the defence is in the nature of an afterthought;
Court's Analysis And Findings At The End Of The Defence's Case
[186] Under s 182A of the CPC, the Court is obliged to consider all the
evidence adduced and this would include testing the evidence led by the
defence against the evidence led by the prosecution, see Md Zainudin Raujan v.
PP [2013] 3 MLRA 351; [2013] 3 MLJ 773; [2013] 4 CLJ 21; [2013] 3 AMR
480 (FC) and PP v. Mohd Arabi Aminudden [2017] MLRHU 689; [2017] 9
CLJ 382 (HC).
Law On Grave And Sudden Provocation And Self-Defence
[187] In the first exception housed in s 300 PC(supra) "culpable homicide is not
murder if the offender, whilst deprived of the power of self control by grave
and sudden provocation, causes the death of the person who gave the
provocation, or causes the death of any other person by mistake or accident."
[188] In the second exception housed in s 300 PC(supra) "culpable homicide is

not murder if the offender, in the exercise in good faith of the right of private
defence of person or property, exceeds the power given to him by law, and
causes the death of the person against whom he is exercising such right of
defence, without premeditation and without any intention of doing more harm
than is necessary for the purpose of such defence."
PP
[189] In the fourth exception housed in s 300 PC(supra), "culpable homicide is

not murder if it is committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel, and without the offender having taken
undue advantage or acted in a cruel or unusual manner."
[190] It is settled law that the burden of proving circumstances that brings a
case within the general exceptions of the Penal Code or the special exceptions
lies on the accused person which he must discharge on a balance of
probabilities, see s 105 of the Evidence Act, Jayasena v. The Queen [1970] 1 All
ER 219 (PC), Ikau Anak Mail v. Public Prosecutor [1973] 1 MLRA 583; [1973]
2 MLJ 153 and Tony Rambor v. PP [2022] MLRAU 235 at para [19] as per
Ravinthran Paramaguru JCA, Ricky Purba v. Public Prosecutor [2014] 2
MLRA 140; [2014] 4 MLJ 569; [2014] 3 CLJ 607 (CA), Patrick Chau Fook
Henn v. Public Prosecutor [2014] 3 MLRA 246; [2014] 3 MLJ 825; [2014] 8
CLJ 14 (CA) at para 16.
[191] Recently in Salman Bin Kassim v. Public Prosecutor [2023] MLRAU 29;
[2023] 2 MLJ 456, Lee Swee Seng JCA in handing down the decision of the
Court of Appeal said:
[73] In Che Omar Mohd Akhir v. PP [2007] 1 MLRA 285; [2007] 4

MLJ 309; [2007] 3 CLJ 281 the Federal Court clarified as follows:
"[16] It is also said that the defence of provocation is a dual

one: the alleged provocative conduct must be such as (i)
actually causes in the accused, and (ii) might cause in a
reasonable man, a sudden and temporary loss of self-control
as the result of which he kills the deceased.
[17] Thus, in order to successfully set up provocation as a

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

justified is a question of fact based on the particularities and
peculiarities of each case as well as the presenting problem faced by
the personalities.
The explanation to Exception 1 to s 300 of the Penal Code states

clearly that:
PP
Explanation-Whether the provocation was grave and sudden

enough to prevent the offence from amounting to murder, is a
question of fact.
[75] We agree with the learned trial Judge that the burden of proving
the exception of a "grave and sudden provocation" applies lies with the
accused by virtue of s 105 of the Evidence Act 1950 which reads as
follows:
"105. 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 special exception or proviso contained in any other
part of the same Code, or in any law defining the offence, is
upon him, and the court shall presume the absence of those
circumstances."
[76] The following "ILLUSTRATIONS" to s 105 make it crystal clear:
"(a) A accused of murder alleges that by reason of

unsoundness of mind he did not know the nature of the act.
The burden of proof is on A.
(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.
......"
[77] The burden is discharged if it is proved by the accused on the

balance of probabilities as was held in the Court of Appeal case of
Ricky Purba v. Public Prosecutor [2014] 2 MLRA 140; [2014] 4 MLJ
569; [2014] 3 CLJ 607 as follows:
"It is an established principle of criminal jurisprudence that the

defence is not required to prove its case with the same rigour
as the prosecution and the defence is only required to prove its
case on the balance of probabilities to entitle him to rely on
any general exceptions of the PC (see s 105 of the Evidence
Act)."
......
[81] We are of the considered view that the accused had acted totally
out of proportion to the provocation. The following observation of the
Federal Court in Abdul Razak Dalek v. PP [2010] 1 MLRA 622; [2010]
PP
4 MLJ 725; [2010] 6 CLJ 357 resonates with us:
[30] The third issue was on the defence of grave and sudden
provocation. On this ground, we are in agreement with the
conclusion of the trial judge as well as the Court of Appeal
that what the deceased did was insufficient to amount to a
grave and sudden provocation in law and the appellant's act of
cutting of the deceased's throat was clearly out of proportion
to the alleged provocation."
[192] As for the right of private defence, Harmindar Singh Dhaliwal FCJ
speaking for the Federal Court in Mickelson Gerald Wayne v. PP [2022] 1
MLRA 656; [2021] 10 CLJ 700 said that;
"[18] Our Penal Code covers this right of private defence quite
extensively with ten provisions from ss 96 to 106. Whilst it may be
useful to look at all these provisions to get an understanding of the
motivations and rationale behind this defence, for the purposes of the
instant appeal, it is necessary to consider only the following
provisions:
96. Nothing is an offence which is done in the exercise of the

right of private defence.
97. Every person has a right, subject to the restrictions

contained in s 99, to defend:
(a) his own body, and the body of any other person,
against any offence affecting the human body;
(b) the property, whether movable or immovable, of

himself or of any other person, against any act which
is an offence falling under the definition of theft,
robbery, mischief or criminal trespass, or which is an
attempt to commit theft, robbery, mischief or criminal
trespass.
99. (1) There is no right of private defence against an act

which does not reasonably cause the apprehension of death or
of grievous hurt, if done, or attempted to be done, by a public
servant acting in good faith under colour of his office, though
that act may not be strictly justifiable by law.
(2) There is no right of private defence against an act which

does not reasonably cause the apprehension of death or of
grievous hurt, if done, or attempted to be done, by the
direction of a public servant acting in good faith under colour
of his office, though that direction may not be strictly
justifiable by law.
PP
(3) There is no right of private defence in cases in which there

is time to have recourse to the protection of the public
authorities.
(4) The right of private defence in no case extends to the

inflicting of more harm than it is necessary to inflict for the
purpose of defence.
100. The right of private defence of the body extends, under

the restrictions mentioned in the last preceding, to the
voluntary causing of death or of any other harm to the
assailant, if the offence which occasions the exercise of the
right is of any of the following descriptions:
(a) such an assault as may reasonably cause the

apprehension that death will otherwise be the
consequence of such assault;
(b) such an assault as may reasonably cause the

apprehension that grievous hurt will otherwise be the
consequence of such assault;
(c) an assault with the intention of committing rape;
(d) an assault with the intention of gratifying

unnatural lust;
(e) an assault with the intention of kidnapping or

abducting;
(f) an assault with the intention of wrongfully

confining a person, under circumstances which may
reasonably cause him to apprehend that he will be
unable to have recourse to the public authorities for
his release.
102. The right of private defence of the body commences as

soon as a reasonable apprehension of danger to the body arises
from an attempt or threat to commit the offence, though the
offence may not have been committed; and it continues as
long as such apprehension of danger to the body continues.
[19] These provisions clearly provide that the right of private defence,
or self-defence in ordinary parlance, is a complete defence. However,
in order for this defence to bite, there must exist certain circumstances
which are again subject to certain limitations. The first of these
circumstances is that the right only arises when an offence against the
human body is being committed against the person's own body or the
body of another person (s 97(a) PC). We are not here concerned with
PP
the right to protect property. The second circumstance for the right to
apply is that there must have been no time to have recourse to the
protection of the public authorities (s 99(3) PC).
[20] Now, of course, the presence of these circumstances is further

circumscribed by two limitations. The first is that the right of private
defence will not extend to the case where more harm than necessary is
inflicted for the purpose of the defence (s 97(a) PC). The second
limitation is that the right of private defence only commences when
there is reasonable apprehension of danger to the body (s 102 PC). The
right dissipates when there is no longer any such apprehension of
danger.
[21] The application of these provisions was considered in PP v. Ngoi

Ming Sean [1980] 1 MLRH 12; [1981] CLJ (Rep) 251 where Ajaib
Singh J (later SCJ) summarised the defence in these succinct terms:
The Penal Code provides that nothing is an offence which is

done in the exercise of the right of private defence of a
person's body. But there is no such right where the person has
time to seek the protection of the public authorities. Nor will
this right of private defence extend to the inflicting of more
harm than is necessary for the purpose of defence. Subject to
these limitations the right of private defence of the body
extends even to the voluntary causing of death or any other
harm to the assailant if the person who exercises his right of
private defence is under a reasonable apprehension that death
or grievous hurt would be caused to him by the assailant. The
right of private defence commences as soon as there is
reasonable apprehension of danger to the body and this right
continues so long as such apprehension of danger continues.
(See ss 96 to 102 of the Penal Code). And it goes without
saying that the right of private defence ceases and is not
available when there is no more apprehension of danger to the
body.
....
....
[24] So, it is apposite that the right of private defence is available to

any person who is suddenly confronted with the immediate necessity
of an impending danger or peril, not of his own creation, as long as the
harm that is inflicted in the exercise of the right is not more than is
necessary for his defence. That right commences the moment there is
reasonable apprehension of danger to the body and continues as long
as such apprehension of danger remains. Whether the apprehension
was reasonable or not is a question of fact depending upon the facts
and circumstances of each case but should be judged primarily by the
unexpected anguish the accused faced at the time and not solely by
PP
objective standards, microscopic analysis or pedantic scrutiny by the

judge many years later at the trial."
[193] From the decisions set out above, it is clear that the defences advanced
by the accused are each fact sensitive ie each of the defences depends upon the
facts and circumstances leading to what the accused had done.
Alleged Lack Of Medical Evidence
[194] Before going into the Court's analysis of the facts and circumstances on
whether the defences of grave and sudden provocation, the right of private
defence or sudden fight or all three have been proved by the accused on a
balance of probabilities, there is an issue which is to be disposed first.
[195] The defence in his written submissions (Encl 296 para 12) asserted that
there was no medical evidence on the nature and of the injuries and its likely
and natural effects. As such, the defence asserted that on this score, the offence
of murder has not been made out.
[196] I have found at the end of the prosecution's case that the medical
evidence housed within the post mortem autopsy report (P32) of SP6 and his
oral testimony had proved beyond any reasonable doubt that Ng was subject
to repeated and forceful trauma to his body and in particular his head with his
skull cracked and bleeding heavily leading to his death.
[197] Thus, this assertion by the defence on lack of medical evidence is devoid
of merit.
Defence Of Grave And Sudden Provocation, Self-Defence And Sudden Fight
[198] The accused made the following admissions:
i) he knew Ng as he said he had borrowed money from Ng sometime

in August 2017;
ii) Ng had been coming to see him daily since he borrowed money
from Ng;
iii) that Ng had come to where he carried out business at stall No 6

Teluk Batik;
iv) that he had used the wooden stick (P6A(9A)) to hit Ng,
v) he had thrown Ng's body into a drain;
vi) that photographs 24 (1A and 2B) is his mother's house; and
vii) that he can been seen in photograph P24 (5E) which shows the
vicinity of where SP12 found the wooden stick (P6A (9A).
PP
[199] SP10's evidence was that she and SP11 were driven to work by SP8 at
about 10 am. (NE p 110) to the stalls at Teluk Batik. This was corroborated by
SP11 (NE p 119). SP10 said she looked after stall 114 whereas SP11 looked
after stall 120. This was also corroborated by SP11. SP10 said she did not see
anyone else. Neither did SP11.
[200] SD1 in his witness statement PSD1 (p 3) said that he started work by
opening his stall at 11:00 am. and no one else was there and other stalls have
not opened as yet. He cleaned his stall and about 15 minutes later Ng came.
[201] After taking into account that the accused had later in the evening
approached SP9 (NE p 14 and 105) to say that SP10 may have seen
something, I find that the weight of the evidence narrated above supported
SP10 and SP11's testimony that they had started work at 10 am. and that SP11
heard the sound of a mattress/pillow/carpet being hit with her tracking down
the noise to stall no 114 and where SP10 saw the accused hitting a victim who
was lying down and groaning in pain.
[202] No evidence at all was given by SP10 and SP11 that they heard anyone
hurling abuses, curses or insults bearing in mind that the accused had asserted
that these were done by Ng in a loud voice.
[203] SDI's bare denial that he had not approached SP9 that evening is not
credible because SP9 was able to give much details of what was said by SD1.
[204] In his written submissions (Encl 296) elaborate submissions were made
by the learned counsel for the defence about unlicensed moneylenders
commonly called "Ah Longs" and their inhumanity in charging exorbitant
interest. And, that Ng being allegedly one, had apparently resorted to
provoking the accused by repeating vulgarities and worsening it by resorting to
abusing the accused's wife and mother to such an extent that the accused
asserted that no Asian man of morality and good honour would be expected to
tolerate or bear it, and that Ng also became aggressive and attempted to assault
him causing the accused to lose his self-control due to the highly provocative
language which he asserted amounted to grave and sudden provocation. A
sudden fight ensued. By chance the accused said he saw a stick on the ground
and he took it and hit the accused in self-defence to protect himself.
[205] The accused's submissions is different from what he had narrated in his
witness statement in PSD1. In PSD1 (p 4) the accused averred that it was
because of the vulgarities that made him attack Ng but Ng pushed the accused
causing the accused to fall. The accused then saw a stick lying in a drain and
took it and got up and hit Ng causing Ng to fall.
[206] From the accused's own narration, he was the one who had initiated the
physical attack against Ng who in fending off his attack had pushed him
leading him to fall. Thereafter, it was the accused who took the stick and hit
Ng.
[207] However, the explanation to Exception 4 of s 300 PC specifically provide

PP
that it is immaterial in such cases (of a sudden fight in the heat of passion upon
a sudden quarrel) which party offers the provocation or commits the first
assault. Be that as it may, there is an added requirement which is "without the
offender having taken undue advantage or acted in a cruel or unusual
manner."
[208] In my considered view, with SP10 and SP11 not having given any
evidence of hearing any shouting and not having been challenged on this
during cross-examination, I find the story about Ng having shouted abuses at
the accused with expletives and vulgarities to be made up and bereft of any
credit.
[209] I also find the stand taken by the accused as to whether he or Ng had
initiated the attack to be inconsistent, or whether he was pushed down once or
twice. In his own testimony on oath in PSD1, he said he initiated the attack.
Whilst it is immaterial in a case of sudden fight in the heat of passion upon a
sudden quarrel, who had offered the provocation or commits the first assault,
the inconsistent positions, of the accused do not make him a credible witness
on his assertion that there was a sudden fight. More so, when he did not seem
to have suffered any injuries in the alleged fight that required treatment.
[210] The defence is that Ng was an unlicensed moneylender seeking to collect

on a debt which had run into two days of arrears which comes to RM80.00
and had in the process vilified and berated the accused followed by Ng
attacking the accused. I find it wholly illogical that a creditor would want to
kill the goose that lays the golden eggs. In other words, it does not make sense
that Ng would want to harm the accused, at least physically, as it may injure
the accused causing the latter not to be able to work to pay his debts.
[211] Whilst learned counsel for the defence painted a black picture about "Ah
Longs" and whilst the accused asserted it was a matter of honour that made
him do what he did to an "Ah Long", the law is clear, it is not for him to take
the law into his own hands. His resort to honour sounds hollow when in the
first place, he should not have taken a loan from an "Ah Long" and
undertaken the notorious risks of being hounded for repayment as described by
his learned counsel for the defence and it is a notorious fact that such risks are
likely to spill over to his family whom the accused professed to love dearly.
[212] In my considered view, on the evidence, the story about Ng having

shouted abuses at the accused with expletives and vulgarities and then
attacked the accused leading to a sudden fight are all contrived.
[213] In the circumstances, I find the factual foundation for the accused to lay
his defence of grave and sudden provocation leading to a sudden fight to be
non-existent, an afterthought and bereft of credit.
[214] Further, it was not put to both SP10 and SP11 that there was an Indian
man who was a contract sweeper in that area who was working there at that
time.
PP
[215] It was not specifically put to SP12 and SP18 that there was such an
Indian man who was a contract worker for MPM, and who had beaten up Ng.
[216] The only passing whiff of this was in the cross-examination of SP18
when it was put to her that SP7's police report said that Ng was beaten by
several persons (NE p 201) and SP18 had agreed that she had investigated only
one person contrary to SP7's report (NE p 202).
[217] Needless to say the prosecution sought clarification from SP18 during re-
examination on why her investigation was on only one person. Surprisingly,
learned counsel for the defence objected. I found his objections to be wholly
without merit as this was on a challenge he had raised (NE p 214). I had
allowed the learned DPP to question SP18 to clarify why only one person was
investigated (NE p 214). The following clarification was given by SP18:
"TPR: Mengapa awak siasat seorang sahaja dan tiada saspek lain?
J:Selepas terima repot ini kita telah jumpa Keng Meng Soon (SP7).
Keng Meng Soon juga tidak lihat kejadian. Dia dimaklumkan. Untuk
mendapatkan kesahihan cerita saya turun ke tempat kejadian. Kita
dapat maklumat ada saksi yang nampak. Dari 2 ini (Ija (SP11) and
Akmar (SP10) yang beritahu saspek utama ialah Tertuduh."
[218] The clarification by SP18 is credible and supported by the evidence of

SP10 who saw the accused beating the victim lying on the ground. SP10 and
SP11 who were both at the scene at the material time did not see anyone else.
[219] If there was such an Indian man, the accused could have given notice of
such a man to the police during the investigation phase. If the man was indeed
a contract worker for the local council, surely the police would be able to track
him down.
[220] If this other man who is a contract worker was the man who had hit Ng's
head, and the accused knowing that Ng had died, and if all that he had done
was to hit Ng on his body, common sense and logic would dictate that the
accused's primary sense of self-preservation would be so strong that he would
post-haste report to the police and distanced himself from the killing. See Teng
Howe Sing v. PP [2008] 1 MLRA 645; [2008] 5 CLJ 186 at para [13] (CA)
where the Court of Appeal upheld the finding of the trial judge in disbelieving
the story of the accused who failed to furnish information to the police for
their investigations about one "Ho Seng" whom the accused said had
requested him to do what he did, and without the accused having given the
information, there was no basis for his complaint about the police
investigations.
[221] However, incredulously, the accused kept the identity or presence of

such a man close to his chest until his defence was called.
[222] In my considered view, the defence's story of some other person having
hit Ng's head with the stick was an attempt to desperately hang onto SP7's
PP
police report that he (SP7) was informed by the local people that Ng was
beaten by several ("beberapa orang").
[223] Thus, I find that the defence's story that it was someone else, in the form
of an Indian local council contract cleaner whom the accused knew, and who
had hit Ng on the head several times (PSD1 p 4) leading to his skull being
cracked together with the other extensive bodily injuries, to be a recent
invention, an afterthought, bereft of any credit.
[224] As for the accused's story about he being attacked by Ng, he first said he
was pushed down once. Then he added to that by saying he was pushed down
twice. Then he added, whilst lying down Ng came to attack him and per
chance he happened to see a stick lying there in the drain.
[225] The stick is not a branch that could have fallen down from a tree.
[226] Instead, it (P6A(9A) is a five foot long stout staff (P26 (I9)) which clearly
can be seen to have been planed into what has been aptly described by SP10 to
be a baseball-like bat (P26 (8 to 13).
[227] It looks more like a substantial staff or weapon of the accused rather than
a branch or tiny skinny twig lying abandoned on the road or in a drain that the
accused would want the Court to believe.
[228] On the other hand, there was no evidence at all that Ng was carrying any
offensive weapons.
[229] In the case of PP v. Yeo Kim Bok (supra) relied upon by the defence, the
victim was seeking repayment of money that he had lent the accused and had
picked up a knife and rushed towards the accused who was in a coffee shop
and had no way to escape.
[230] Here it is indisputable that both Ng and the accused were out in the open
as can be seen in the photographs (P19 (9 to 22). The accused could have
sought help or walked away from Ng and sought help if at all needed.
[231] In Chung Tain Kong @ Chung Fook Chung v. Public Prosecutor [2009] 3
MLRA 332; [2010] 2 MLJ 732; [2010] 2 CLJ 308, when the fatal blow was
struck on the deceased, she was already lying on the floor, injured, unarmed
and harmless. At that point, the appellant had seized the knife away from her,
and he was standing over her. He was then armed with the Rambo knife.
There was no impending danger to the appellant's life or grievous hurt to
himself. The appellant could have escaped or retreated in the face of any
danger instead of attacking the deceased. The appellant was not acting in
necessary selfdefence. There was no reasonable apprehension of danger to the
appellant, for him to act the way he did and the Court of Appeal dismissed his
plea of self-defence.
[232] Similarly in this case, SP10 could see the accused hitting the victim who
was lying on the ground.
PP
[233] This was after SP11 had come to tell her that someone has been beaten
(NE p 110). SP11 said she heard sounds akin to a mattress/pillow/carpet
being beaten and then tracked the sounds to where SP10 was working (NE p
119) which was where she heard someone groaning and gasping in pain. Not
long after SP11 had told SP10 of what she heard that SP10 came to tell her
that she saw Din (the accused) who is a trader there, beating someone (NE 119
and 120). Thus, the beating had taken place for some time.
[234] Therefore, it is clear that the accused was beating and had continued to
hit the victim after the victim was already lying on the ground and groaning in
pain. I find that even if there had been a sudden fight, the accused had in the
circumstances, acted in a cruel manner by taking undue advantage of the
hapless victim lying on the ground groaning in pain by continuing to beat him
and inflicting extensive bodily injuries including a cracked skull and extensive
bleeding in his brain, leading to his death.
[235] I find the story by the accused that Ng was bigger and stronger to be an
afterthought and contrived after considering that the accused was in his prime
years of about 42 years of age at the time of the incident, involved in hard
work of selling coconut water and burgers and capable of looking after himself.
[236] The inconsistent and incredible story put up by the defence becomes
stark when the evidence of the pathologist SP6 under crossexamination and
narrated in detail is evaluated.
[237] It was put by the learned defence counsel to SP6 that Ng could have
suffered the bodily injuries including a cracked skull leading to his death from
a fall or falls onto the rough surface in the area by the stalls caused by a strong
push or punch.
[238] The case-theory of the defence falls flat when weighed against the
accused's story that he was pushed down not once but twice in the area with
rough surfaces and next to a drain where by chance there was a relatively
smooth solid staff, but with him suffering only bruises that did not warrant
him seeking any treatment.
[239] Thus, it is clear that the accused was beating and had continued to hit
the victim after the victim was already lying on the ground and groaning in
pain. As observed by the Court of Appeal in Chung Tain Kong (supra) the
accused could have escaped if he was attacked by Ng after Ng was already
lying on the ground groaning in pain instead of continuing to hit him on the
head.
[240] In Chung Tain Kong (supra) The Court of Appeal held that:
"However four cardinal justification must exist before the killing of an

assailant can be justified in a plea of self-defence. These are described in
Ratanlal and Dhirajlal's Law of Crimes (25th Ed) as:
PP
(i) the accused must be free from fault in bringing about the
encounter;
(ii) there must be present an impending peril to life or of great

bodily harm either real or so apparent;
(iii) there must be no safe or reasonable mode of escape by

retreat, and
(iv) there must have been a necessity of taking life.
These justifications must also be read together with the provisions of s

99 of the Penal Code in particular s 99(4) which states that:
"The right of private defence in no case extends to the

inflicting of more harm than it is necessary to inflict for the
purpose of defence."
[Emphasis Added]
This particular defence will thus need to be considered against the

particular facts and circumstances of the case"
[241] From the evidence led and in particular, that of SP10 and SP11, and
even if the admission by the accused that he had fallen behind in his loan
repayment to Ng is not to be taken into consideration, the accused had failed
to prove at least three of the abovementioned justifications ie that of ii), iii) and
iv) and in the circumstances, even if the accused was free from fault in the
encounter, from the evidence produced, the accused had inflicted more harm
than is necessary for the purpose of his defence.
Conclusion
[242] In the circumstances, having reviewed the evidence at the end of the
defence's case and after taking into account the submissions presented by both
learned counsel for the defence and the learned deputy public prosecutor
(Madam Ainul Wardah Binti Shahidan at the prosecution stage and Mr Mohd
Fitri bin Sadarudin at the defence stage) I find that the prosecution had proved
the charge of murder against the accused beyond reasonable doubt and that
the defence had failed to raise any reasonable doubt on a balance of
probabilities his defences of sudden and grave provocation, that of self-defence
and sudden fight. This Court had thus convicted the accused on the charge.
[243] Under the law, the one and only sentence that is to be meted out on an
accused found guilty of murder is death, (see s 302 of the Penal Code), and
pursuant to s 277 of the CPC the accused is to be hanged by the neck till he is
dead, and I so ordered.
PP
Lengthy Judgment
[244] The grounds herein are much longer than is usual. However, I had taken
pains to set out the evidence led as well as the positions taken by both the
prosecution and the defence. This is because I am conscious that I have taken
over a trial which was part-heard.

PP v. KAMARUDDIN ABD RAHIM

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PP v. KAMARUDDIN ABD RAHIM

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PP

[2023] MLRHU 234 v. Kamaruddin Abd Rahim pg 1

High Court Malaya, Ipoh

Case(s) referred to:

Legislation referred to:

Su Tiang Joo JC:

[1] On 30 December 2022 the accused was found guilty of murdering an

original language in Bahasa Melayu reads as follows:

i) SP1 - RF/135800 Kpl Hajizol Bin Taham (Penjaga Stor/

ii) SP2 - Siti Hajar Binti Hairi (Ahli Kimia/ Chemist);

iii) SP3 - Sopian Ashafi Bin Mohamed (Ahli Kimia/ Chemist);

iv) SP4 - RF/99437 Kpl Razali Bin Abdullah (Jurufoto/

v) SP5 - RF/199572 Muhammad Hairie Bin Jaf Rosli (Jurufoto/

vi) SP6 - Dr Mohammad Shafie Bin Othman @ Osman (Doktor

vii) SP7 - Keng Meng Soon (Sepupu Ng/Ng's cousin);

viii) SP8 - Nor Zilawati Binti Hashim (Peniaga/ Business woman);

ix) SP9 - Zuhari Bin Hashim (Guru/Teacher);

x) SP10 - Nor Akma Binti Kamal (Pengkhidmat SP8/SP8's

xi) SP11 - Siti Khalijah Binti Abd Shukor (Pengkhidmat SP8/SP8's

xii) SP12 - G/22027 Insp Gafar Bin Abidin (Penolong Kompeni

xiii) SP13 - Nur Hanisah Binti Mahzuf (Pegawai Perubatan/Medical

xiv) SP14 - Tiang Chou Whei (Isteri Ng/ Ng's wife)

xv) SP15 - G/22605 Insp Mira Norain Binti Norashid (Pegawai

xvii) SP17 - G/19428 Mohd Azraan Bin Mohd Mokhtar (Pegawai

xviii) SP18 - G/24771 Nurjihan Binti Jaya (Pegawai Penyiasat/

Brief Background Facts

First Element Of The Murder Charge - Deceased Was Ng Yeong Chian

"Tanda-tanda Kecederaan Luaran

1. Luka koyak di bahagian atas belakang kepala sedikit di sebelah kiri

2. Luka koyak di atas kening sebelah kiri berukuran 3 x 1 sm, diiringi

3. Lebam mata kiri berukuran 6 x 3 sm.

4. Kesan lecet pada batang hidung berukuran 0.5 x 0.5 sm.

5. Luka koyak pada dagu di sebelah kiri berukuran 4 x 1 sm, diiringi

7. Kelompok lecet serta lebam pada tepian leher sebelah kanan

8. Lebam sekitar telinga kiri berukuran 5 x 3 sm.

9. Lebam tepian leher sebelah kiri berukuran 11 x 8 sm.

13. Kesan lebam yang meliputi kedua-dua bahu di bahagian atas

14. Dua kelompok garis-garis lecet di tengah belakang badan sebelah

15. Kelompok garis-garis lecet di belakang pinggang sebelah kiri

17. Kesan lecet di tepian dalam lengan bawah kanan berukuran 10 x 2

18. Kesan lecet di belakang tangan kanan berukuran 5 x 4 sm, diiringi

24. Lecet pada lutut kiri berukuran 4 x 3 sm.

Tiada tanda kecederaan luaran lain dikesan."

Terdapat pendarahan ekstensif di bawah kulit kepala di bahagian

Mulut dan Leher

Rongga abdomen bersih tanpa kerengsaan atau pengumpulan darah.

Tiada struktur tulang lain yang patah selain kepatahan pada

tengkorak. Tiada sendi yang selisih ditemui.

[27] Thereafter, SP6 made his findings (P32 p 6) as follows:

"Ringkasan Dan Kesimpulan

Pemeriksaan menunjukkan si mati telah mengalami kecederaan di

Kecederaan kepala yang dialaminya adalah berpunca dari hentakan

Terdapat tanda kecederaan di belakang kedua-dua tangan yang

Tidak terdapat sebarang tanda penyakit biasa ditemui yang boleh

Berdasarkan kepada keadaan mayat, saya menganggarkan si mati

'KECEDERAAN KEPALA AKIBAT TRAUMA OBJEK

"Sebagai contoh - kepala jika diketuk dengan objek ini, akan

"S: Maksudnya kecederaan yang kedua - seretan tadi tidak boleh

J: Ia tidak memberi rumusan sebab kematian.

S: Bukan penyebab kepada kematian?

S: Walaupun diseret itu, ia tidak akan membawa kepada kematian.

Third Element - That The Injuries Suffered By Ng Leading To His Death

[39] This important element according to the prosecution is in regards to the

[42] And, from the direct evidence of several witnesses as well as