(APPELLATE JURISDICTION) CRIMINAL APPEAL NO. S-05-113-05/2012 Between Public Prosecutor A

IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. S-05-113-05/2012

Between

Public Prosecutor ……Appellant

And

Bernadito L. Alenjandro Jr ...…Respondent

[In the matter of High Court of Sabah and Sarawak, in Sandakan, Sabah. Criminal Trial No. S-45-04-2011]

Between Public Prosecutor

And Bernadito L. Alenjandro Jr

CORAM

AZAHAR MOHAMED, JCA LINTON ALBERT, JCA DAVID WONG DAK WAH, JCA

GROUNDS OF DECISION

The 14th January 2011 began on a happy note for the respondent who was invited to one Joel Mateo’s birthday party at his estate quarters, opposite to where the respondent stayed. He and his wife went early in the morning to help in the preparations at Joel Mateo’s house. In conjunction with the birthday party there was a long drinking session which ended in a fight resulting in the respondent inflicting serious injury to Renato S. Harder

(the deceased) who succumbed to the injury and less serious injuries to

James Jimeno who survived. The respondent was subsequently charged for offences under the Penal Code. The first charge read as follows :

“That you, on the 14th day of January 2011, at around 7.00

pm to 8.00 pm, at Kongsi Pekerja No. 15D, Ladang Mewah 2, in

the District of Kinabatangan, in the State of Sabah, did commit

murder by causing the death of one RENATO S. HARDER (M) and

thereby commit an offence punishable under section 302 of the

Penal Code.”

The second charge read :

“That you, on the 14th day of January 2011, at around 7.00

pm to 8.00 pm, at kongsi Pekerja No. 15D, Ladang Mewah 2, in

the District of Kinabatangan, in the State of Sabah, had

voluntarily caused hurt to one JAMES JIMENO (M) by means of a

sharp parang and that you have thereby committed an offence

punishable under section 324 of the Penal Code.”

The respondent was acquitted of the offence of murder punishable under section 302 of the Penal Code pursuant to the first charge but found guilty and convicted of the lesser offence of culpable homicide not amounting to murder under section 304(a) of the Penal Code and sentenced to a term of 18 years imprisonment. The respondent was, however, convicted under the second charge and sentenced to 2 years imprisonment to run concurrently with the imprisonment term for the offence under section 304(a) of the Penal Code.

The prosecution appealed in respect of the first charge contending that the judicial commissioner had misdirected himself on both fact and law but for which the respondent would not have been found guilty and convicted of the lesser offence under section 304(a) of the Penal Code but

3 guilty and convicted as charged for murder under section 302 of the Penal

Code.

The prosecution advanced three main grounds before us and we shall deal with each ground in the order it was presented before us.

The first ground revolved around the inconsistent findings of fact on the credibility of the relevant witnesses for the prosecution and the weight given to their evidence at the prosecution stage and the incongruous findings at the end of the defence case. Learned DPP illustrated the inconsistency by setting out verbatim the relevant passages of the judgment of the judicial commissioner which is reproduced as follows:

“This is my ruling at the end of the prosecution’s case. Having heard the testimonies of the witnesses for the prosecution, seen and considered the various exhibits, read the written

submissions of the prosecution and the defence and having subjected inter alia the prosecution’s case in its totality to a maximum evaluation, carefully scrutinized the credibility of

each of the prosecution’s witnesses, I find that the prosecution has proven a prima facie case against the accused and I therefore

order the accused to enter this defence in respect of the 2 charges under sections 302 and 324 of the Penal Code.”

At the end of the defence case a different finding was arrived at :

“I have observed the demeanour and veracity of the

witnesses for the prosecution and the defence. I prefer the

testimony of the accused and his wife. The accused testified in a

straightforward manner and I find that his testimony was credible

and capable of belief. As regards the testimoinies of the

prosecution witnesses especially PW5 and PW11, I find that their

testimonies are not credible based on other circumstances and

evidences of the case and they being friends of the deceased,

might not tell the truth and instead seek to implicate the accused

in the death of their friend, the deceased. (emphasis added)”

At the end of the prosecution case the trial judge ruled that the prosecution had established a prima facie case in relation to the first charge based on the following findings which is reproduced verbatim from the judgment of the judicial commissioner :

“(a) The deceased is dead. The deceased’s body had been

positively identified by his sister (PW10) during the post-

mortem. She had also lodged a police report (Exhibit P69)

to correct the real name of the deceased as Renato S.

Harder.

(b) Dr. Jessie Hiu @ Jessie Dorey Hiu Chen Chen (PW6), the

pathologist, testified that the deceased’s death was caused

by the pypovolaemic shock due to or as a consequence of

chop wound on the neck. Besides her oral testimonies, her

evidence is corroborated by the post-mortem report which

was admitted and marked as Exhibit P7. Hence, the death

of the deceased was caused by injuries inflicted on him.

death was caused by the injuries inflicted by the accused

namely:-

i. Alfredo Barlaan (PW11), saw the accused

slashed the deceased on his left neck with

parang. James Jimeno, PW5 also witnessed the

incident and was injured during the incident.

ii. The parang (P10) which is undisputedly the

weapon used in this case was discovered from

the accused by Jumal Sakile (PW12) who later

handed it to his wife. The parang later

discovered by one Hendrik Dadi (PW14) who

put it at the bucket of the vehicle, which later

was seized by PW16, Sjn Ismail.

iii. The T-shirt (P61) which was discovered from

the information given by the accused was sent

to the Chemistry Department for DNA profiling

and according to Rita Tie Ung Ha (PW7), the

chemist and her report (P22) contained the

bloodstain that belonged to the deceased.

(d) There is evidence to show that the accused had the

intention to cause the deceased bodily injury which

was sufficient in the ordinary course of nature to

cause death.”

Learned DPP relied on the case of PP v. Kenneth Fook Mun Lee &

Another Appeal [2006] 1 CLJ 499 which in our view, is grossly inapplicable in the circumstances of the present appeal. In that case, the accused, for no apparent reason walked towards the deceased who was a total stranger and with utter callousness and cruelty shot her in the chest while she was still in her car. She died. The High Court convicted the accused for an offence under section 304(b) of the Penal Code but on appeal, the Court of Appeal substituted it with a conviction for murder under section 302 of the Penal Code and sentenced him to death by hanging.

Mohd Ghazali Yusoff JCA, delivering the judgment of the Court of Appeal said at pages 555-556:

“In this instant appeal, on the evidence, we are of the

unanimous view that the learned trial judge had misdirected

himself in fact and in law and ought to have found the

8 respondent guilty on the original charge of murder. The facts are sufficient to bring the case within the ambil of s. 300(d) of the

Code and the act of the respondent would fall within the definition of murder. The invocation of s. 300(c) of the Code by the learned trial judge is altogether erroneous. Intention is not a necessary element of an offence under s. 300(d). All that is needed is knowledge that the act is likely to cause death. The emphasis in s. 300(d) is on the imminently dangerous character of the act itself. Further, s. 300(d) is usually applied where the act of the offender is in general disregard for human life and safety.

What is clear from the evidence is the respondent did not know the deceased. He discharged the gun in absolute callousness towards the result. The act of the respondent cannot fall within the purview of s. 304(b) of the Code. He has committed by him clearly fall under s. 300(d) of the Code. All the evidence proved beyond doubt that he had performed the act knowingly and voluntarily and hence must be guilty of an offence under s.

302 of the Code.”

In the present appeal, the facts are totally different and even though there were two versions, neither was anywhere remotely close to section

300(d) of the Penal Code. The two versions were set out in the judgment of the judicial commissioner as follows:

“There were two versions on how the deceased was slashed.

The prosecution witnesses i.e. PW5 and PW11 said the accused

came into the house and straight away slashed the deceased who

was holding a microphone singing karaoke. On the other hand,

the accused said (as he demonstrated in court) he was hit at the

back of his head by someone and as a result of the said hit he

stumbled and in the course of falling down towards the direction

of deceased who was standing in front of him, he waved his

parang which he held in his right hand at the chest level towards

his right hand side, turning to his back and lastly chopped to his

front and followed with his fall with face down.”

We, therefore, find no merit in the argument that the trial judge made two inconsistent findings, one at the end of the prosecution case and another at the end of the defence case because it is trite that at the end of the defence case the trial judge must re-evaluate all the evidence of the prosecution and defence and ask himself whether the prosecution had proven its case beyond reasonable doubt or, as the case may be whether the defence had cast a reasonable doubt on the prosecution case.

(See Seow Wei Hoong v. Public Prosecutor [2012] 1 LNS 338). It is obvious that a finding made at the end of the prosecution case is not necessarily immutable because if this is so, it would not be necessary to re- evaluate all the evidence at the end of the defence case. It is an essential element of our criminal justice system that the trial judge must re-evaluate all the evidence at the end of the defence case and in so doing may make a finding which is at variance with an initial finding made at the prosecution stage of the trial. The question of inconsistency does not, therefore, arise.

The second ground of appeal is based entirely on a finding of fact.

Learned DPP’s entire argument on this aspect of the appeal is reproduced as follows :

“The learned JC believed DW 1’s evidence in which he

testified he was hit at the back of his head before he stumbled

and the parang he held in his hand, landed towards the direction

of the deceased. In this regard, His Lordship placed reliance on

the accused’s former statement (D1) and his medical report (P62)

With due respect, the learned JC had given too much of a

mileage to the defence’s evidence when in fact the strength of the

prosecution’s evidence remained unshaken and far outshined the

defence’s evidence.”

It is elementary that an appellate court does not readily interfere with a finding of fact by the trial court unless the finding is made without basis, perverse or plainly wrong. Apart from contending that the judicial commissioner should have accepted the prosecution’s version of the incident, learned DPP has not shown the existence of any of the elements which would justify interference with the findings of the judicial commissioner. In fact, justice dictates that where, as here, there are two versions, the version favourable to the respondent must be accepted.

In Tham kai Yau & Ors v. Public Prosecutor [1977] 1 MCJ 174, Raja Azlan

Shah FJ, had this to say at P176:

“That was the other important ground of appeal, namely,

that the learned trial judge failed to direct the jury properly or

sufficiently or at all that where there is more than one inference

which can reasonably be drawn from a set of facts, the inference

most favourable to the accused should be adopted.”

In the circumstances we also find no merit in the second ground advanced by learned DPP.

The third and final ground of appeal was premised on the contention that in the circumstances so found by the judicial commissioner all the ingredients of an offence under section 302 were established. It is perhaps useful, in determining this aspect of the appeal to set out verbatim the judicial commissioner’s conclusions at pages 19-20 of the judgment which formed the basis of his finding that the offence of murder was not made out.

“On the facts of the instant case, there was only one injury, caused by the accused slashing towards the deceased. According to the demonstration performed by the accused in court, the accused stated that as he stumbled and fell as a result of someone hitting his head from behind, he instinctively slashed his parang against the assailant who hit his head from behind him and following his body felling and moving forward to the direction of the deceased who was standing in front of him with his parang swung from up down towards on the deceased which struck the deceased.

Viewing the nature of the wound on the deceased, the pathologist PW6 expressed her opinion and stated that the wound was a chop wound on the left side on the neck of the deceased directed downward. (Refer Q 404 on page 57 NOP).

Her evidence seemed to corroborate with the accused’s version of the material events.

Besides that, place of incident was a small cubicle and

given the height of the accused, it is difficult for one to conclude

that the said fatal wound could be inflicted with intention.

Therefore, in the light of the present circumstances, the accused is

at all probability not liable for murder under any of the clauses of

section 300 of the Penal Code.

Based on the facts of case, the swinging of the parang by

the accused towards the direction of the deceased was not caused

by his own free will but due to his involuntary fall which was

caused by someone, hitting him hard on the back of his head.

Hence, the accused is not liable to murder in the circumstances of

this case.”

In Tham Kai Yau (supra) Raja Azlan Shah FJ (as his majesty then was) set out the law relating to culpable homicide amounting to murder and culpable homicide not amounting to murder at pages 176-177 :

“Section 299, Penal Code enacts that a person commits culpable homicide, if the act by which the death is caused is done:

(a) with the intention to cause death;

(b) with the intention of causing such bodily injury as is likely

to cause death;

Section 300, Penal Code defines murder as follows. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done:

(1) with the intention of causing death

(2) 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.

(3) With the intention of causing such bodily injury to any

person, and….is sufficient in the ordinary course of

nature to cause death

(4) With the knowledge that the act is so imminently

dangerous that is must in all probability cause death, or

such bodily injury as is likely to cause death.

The words which I have italized show the marked differences between the two offences. Where there is an intention to kill, as in (a) and (1), the offence is always murder. Where there is no intention to cause death or bodily injury, then (c) and

(4) apply. Whether the offence is culpable homicide or murder depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide; if it is the most probable result, it is murder. Illustration (d) of section 300, penal Code is a case of this description. Where the offender knows that the particular person injured is likely, either from peculiarity of constitution,

17 immature age, or other special circumstances, to be killed by an injury which would not ordinarily cause death, it is murder.

Illustration (b) of section 300, penal Code is a good example. The essence of (b) and (3) is this. It is culpable homicide if the bodily injury intended to be inflicted is likely to cause death; it is murder, if such injury is sufficient in the ordinary course of nature to cause death. Illustration (c) given in section 300, Penal Code is an example. It is on a comparison of these two limbs of section

299 and section 300 that the decision of doubtful cases as the present must generally depend. The distinction is fine, but noticeable. In the last analysis, it is a question of degree of probability.

A comparison that frequently arises in the application of sections 299 and 300 is the tenuous contention that section 299 is not a substantive offence and therefore an offence is either murder or culpable homicide according to whether or not one of the exceptions to section 300 apply, and if by reason of the

18 absence of the necessary degree of mens rea an offence does not fall within section 300, it cannot be one of culpable homicide not amounting to murder punishable under section 304, Penal Code, but would amount to causing grievous hurt. In our view, the correct approach to application of the two sections is this.

Section 299 clearly defines the offence of culpable homicide.

Culpable homicide may not amount to murder (a) where the evidence is sufficient to constitute murder, but one or more of the exceptions to section 300, Penal Code apply, and (b) where the necessary degree of mens rea specified in section 299 is present, but not the special degrees of mens rea referred to in section 300,

Penal Code. We would like in this connection to express the need to bear in mind that all cases falling within section 300, Penal

Code must necessarily fall within section 299, but all cases falling within section 299 do not necessarily fall within section 300. The first part of section 304, Penal Code covers cases which by reason of the exceptions are taken out of the purview of section 300, clauses (1), (2) and (3) but otherwise would fall within it and also

19 cases which fall within the second part of section 299, but not within section 300, clauses (2) and (3). The second part of section

304, Penal Code covers cases falling within the third part of section 299 not falling within section 300, clause (4).

In the present appeal we think that in view of the nature of the injuries sustained by the deceased and the time and place of the incident, there was evidence of an intention on the part of the appellants to cause bodily injury to the deceased. Therefore in those circumstances, the fine distinction between section 299 and section 300 is very important and that point should have been put clearly to the jury in such a way that they would be able to come to a correct conclusion. The forensic practice of reading section 299 and section 300 to juries is likely to confuse rather than help. In view of what we have stated above, a case such as the present must therefore fall within the second part of section

299 or the third clause of section 300. Speaking generally, if the act must in all probability cause death, the offence is within

section 300, Penal Code, and if the act is only likely to cause

death, the offence falls within section 299, Penal Code. None of

the exceptions to section 300, Penal Code were established. 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

section 304, Penal Code.”

In that case the deceased died due to injuries inflicted by the several accused variously with choppers and a saw and were convicted for the offence of murder. The conviction for murder was set aside and substituted with a conviction under the first part of section 304 of the Penal Code.

It was neither shown nor suggested that the conclusions made by the judicial commissioner were not warranted by the evidence and applying the principles set out in Tham Kai Yau (supra) we were of the view that this ground of appeal was also devoid of merit.

In the circumstances we dismissed the appeal and affirmed the conviction under section 304(a) of the Penal Code and the sentence imposed by the judicial commissioner.

t.t

LINTON ALBERT Judge Court of Appeal Malaysia Dated : 10.03. 2015 Putrajaya

COUNSEL

For Appellant : Choo Peng Yeang Messrs Margaret Hon & Co. 1st Floor, Lot 12, Block D

Bandar Kim Fung, Mile 4 North Road, Sandakan Sabah PPM 579, Elopura 90000 Sandakan Sabah

For Respondent : Kwan Li Sa Jabatan Peguam Negara Bahagian Perbicaraan Dan Rayuan Aras 5, No. 45, Lot 4G7 Presint 4, Persiaran Perdana 62100 Putrajaya