246 Malayan Law Journal [2018] 6 MLJ

A
Norol Rojik bin Jun v Public Prosecutor

COURT OF APPEAL (PUTRAJAYA) — CRIMINAL APPEAL NO

B
S-05(SH)-123–03 OF 2016
LIM YEE LAN, ABDUL RAHMAN SEBLI AND ZALEHA YUSOF JJCA
31 OCTOBER 2017

Criminal Law — Murder — Intention — Whether proven facts of case clearly C

showed accused intended to kill the deceased — Whether accused’s contention that
he was temporarily insane when he attacked the deceased was unproven
— Whether accused’s expressed motive of intending to teach the deceased ‘a lesson’
fortified prosecution’s contention that he intended to kill
D
The appellant was found guilty and sentenced to death by the High Court for
murdering a man (‘Persie’). In his unsworn statement from the dock in defence
to the murder charge, the appellant admitted that he attacked Persie with a
parang but claimed he had no intention to kill. The appellant said he barged E
into a room occupied by Persie and his wife (‘Normah’) and hit him once on the
neck in order to hurt him and scare him into leaving the premises but when
Persie tried to retaliate, the appellant lost control of himself and began to slash
away wildly hurting both Persie and Normah (when she came to Persie’s aid).
Persie suffered 23 slash wounds in the attack and died of severe blood loss. F
Among the several grounds raised in his instant appeal against conviction and
sentence, the appellant contended that: (a) the trial judge failed to consider his
defence of automatism, ‘uncontrolled action’ or temporary insanity; (b) the
counsel that was assigned by the court to defend him was incompetent which
denied him of a fair trial; (c) his cautioned statement cast a reasonable doubt in G
the prosecution’s case but the trial judge failed to consider it; and (d) if the trial
judge had appreciated the defence as a whole the appellant would have been
convicted of the lesser offence of culpable homicide not amounting to murder.

Held, dismissing the appeal and affirming the conviction and sentence: H
(1) On the proved facts of the case, the trial judge was absolutely right in
finding that the murder charge was proven beyond reasonable doubt. On
the totality of the evidence and the probabilities of the case, the only
option that was open to the trial judge was to convict the appellant for the I
offence of murder as charged and not for an offence of culpable homicide
not amounting to murder under s 304 of the Penal Code or any other
lesser offence. The appellant’s act was clearly an act of murder within the
meaning of s 300(a) of the Penal Code (see paras 49–50).
 Norol Rojik bin Jun v Public Prosecutor
[2018] 6 MLJ (Abdul Rahman Sebli JCA) 247

A (2) None of the general exceptions under Chapter IV of the Penal Code
applied in the appellant’s favour as his defence of lack of intention to
cause death did not fit in with any of the defences under Chapter IV such
as the defence of accident under s 80, private defence under s 96 or grave
and sudden provocation under Exception 1 to s 300 of the Penal Code.
B Without expert medical evidence, the appellant’s defence of temporary
insanity was unsustainable. The burden was on him to prove the defence
on balance of probabilities but no such proof was forthcoming. The only
reasonable inference that could be drawn from the proved facts was that
the killing was intentional as it was motivated by a desire to teach the
C
deceased a lesson. The presence of that motive negated the appellant’s
claim of absence of mens rea (see paras 14–16 & 51–52).
(3) The appellant’s defence was one of confession and avoidance —
confessing to the killing but avoiding liability by saying he did not intend
D to cause death. That line of defence fell outside the scope of the general
exceptions under Chapter IV of the Penal Code. There was no reason to
disturb the trial judge’s finding of fact that the appellant intended to
cause the deceased’s death (see para 53).
(4) The appellant’s complaint that the counsel assigned to him was
E
incompetent and that he was thereby denied of a fair trial was baseless.
There was nothing to support that allegation. The appellant knew exactly
what the case against him was. There was nothing complicated in the
evidence of the prosecution’s witnesses particularly the evidence of the
deceased’s wife who witnessed the attack. The appellant did not dispute
F
that the injuries were caused by him. He only disputed that he intended
to cause death (see paras 20 & 23–24).
(5) Most parts of the appellant’s cautioned statement were similar to the
contents of his unsworn statement from the dock. Although the trial
G judge did not refer to the cautioned statement in her grounds of
judgment, that omission did not occasion any substantial miscarriage of
justice. The trial judge had considered the appellant’s defence with
meticulous care and found that his explanation did not cast any
reasonable doubt as to his guilt (see paras 30–33).
H
[Bahasa Malaysia summary
Perayu didapati bersalah dan dihukum mati oleh Mahkamah Tinggi kerana
membunuh seorang lelaki (‘Persie’). Dalam kenyataan tidak bersumpahnya
dari kamar pembelaan berhubung pertuduhan bunuh, perayu mengakui
I bahawa dia telah menyerang Persie dengan parang tetapi mendakwa dia tiada
niat untuk membunuh. Perayu mengatakan dia telah meluru masuk ke dalam
bilik yang didiami oleh Persie dan isterinya (‘Normah’) dan memukulnya sekali
di leher bagi tujuan mencederakannya dan menakutkannya agar meninggalkan
premis itu tetapi apabila Persie cuba bertindak balas, perayu hilang kawalan
248 Malayan Law Journal [2018] 6 MLJ

dirinya dan mula menyerang dengan ganas sehingga mencederakan kedua-dua A

Persie dan Normah (apabila dia datang untuk membantu Persie). Persie
mengalami 23 luka tetakan dalam serangan itu dan meninggal dunia akibat
kehilangan darah yang banyak. Antara beberapa alasan yang ditimbulkan
dalam rayuannya terhadap sabitan dan hukuman, perayu menegaskan bahawa:
(a) hakim perbicaraan telah gagal mempertimbangkan pembelaannya untuk B
automatisme, ‘uncontrolled action’ atau gila sementara; (b) peguam yang
dilantik oleh mahkamah untuk membelanya tidak kompeten sehingga
menafikannya perbicaraan yang adil; (c) kenyataan beramarannya
menimbukan keraguan munasabah dalam kes pendakwaan tetapi hakim
C
perbicaraan telah gagal untuk mempertimbangkannya; dan (d) jika hakim
perbicaraan menilai pembelaan itu secara keseluruhan perayu akan disabitkan
kesalahan yang lebih rendah pembunuhan tanpa niat untuk membunuh.

Diputuskan, menolak rayuan dan mengesahkan sabitan dan hukuman: D

(1) Berdasarkan fakta kes yang dibuktikan, hakim perbicaraan
sememangnya betul kerana mendapati bahawa pertuduhan membunuh
telah dibuktikan melampaui keraguan munasabah. Berdasarkan
keseluruhan keterangan dan kebarangkalian kes, satu-satunya pilihan
yang terbuka kepada hakim perbicaraan adalah untuk mensabitkan E
perayu kerana kesalahan membunuh sepertimana dipertuduhkan dan
bukan untuk satu kesalahan pembunuhan tanpa niat untuk membunuh
di bawah s 304 Kanun Keseksaan atau mana-mana kesalahan lain yang
lebih rendah. Tindakan perayu jelas suatu tindakan membunuh dalam
maksud s 300(a) Kanun Keseksaan (lihat perenggan 49–50). F
(2) Tiada pengecualian am di bawah Bab IV Kanun Keseksaan terpakai
menyebelahi perayu sebagai pembelaannya yang tanpa niat
menyebabkan kematian tidak sesuai dengan mana-mana pembelaan di
bawah Bab IV seperti pembelaan kerana kemalangan di bawah s 80, G
pembelaan persendirian di bawah s 96 atau provokasi yang serius dan
tiba-tiba di bawah Pengecualian 1 kepada s 300 Kanun Keseksaan. Tanpa
keterangan perubatan pakar, pembelaan perayu untuk gila sementara
tidak boleh dikekalkan. Beban terletak ke atasnya untuk membuktikan
pembelaan atas imbangan kebarangkalian tetapi tiada bukti sedemikian H
yang telah dikemukakan. Hanya inferens munasabah yang boleh dibuat
daripada fakta yang dibuktikan bahawa pembunuhan itu adalah
disengajakan kerana ia bermotifkan keinginan untuk mengajar si mati.
Kewujudan motif tersebut menolak dakwaan perayu berhubung
ketiadaan mens rea (lihat perenggan 14–16 & 51–52). I
(3) Pembelaan perayu adalah satu pengakuan dan penghindaran —
mengakui telah membunuh tetapi mengelak liabiliti dengan mengatakan
dia tiada niat untuk menyebabkan kematian. Pembelaan tersebut bukan
skop pengecualian am di bawah Bab IV Kanun Keseksaan. Tiada sebab
 Norol Rojik bin Jun v Public Prosecutor
[2018] 6 MLJ (Abdul Rahman Sebli JCA) 249

A untuk mengganggu dapatan fakta hakim perbicaraan bahawa perayu

berniat untuk menyebabkan kematian si mati (lihat perenggan 53).
(4) Aduan perayu bahawa peguam yang ditugaskan kepadanya tidak
kompeten dan bahawa dia dengan itu dinafikan perbicaraan yang adil
B adalah tidak berasas. Tiada apa-apa yang menyokong pengataan tersebut.
Perayu sebenarnya mengetahui kes terhadapnya. Tiada apa-apa yang
merumitkan dalam keterangan saksi-saksi pendakwaan terutamanya
keterangan isteri si mati yang menyaksikan serangan itu. Perayu tidak
mempertikaikan bahawa kecederaan tersebut disebabkan olehnya. Dia
C hanya mempertikaikan bahawa dia mempunyai niat untuk
menyebabkan kematian (lihat perenggan 20 & 23–24).
(5) Sebahagian besar daripada kenyataan beramaran perayu adalah sama
dengan kandungan kenyataan tidak bersumpahnya dari kamar.
D
Walaupun hakim perbicaraan tidak merujuk kepada kenyataan
beramaran dalam alasan-alasan penghakiman beliau, peninggalan
tersebut tidak menyebabkan apa-apa keadilan yang tidak dilaksanakan
secara substantial. Hakim perbicaraan telah mempertimbangkan
pembelaan perayu dengan teliti dan mendapati bahawa penjelasannya
E tidak menimbulkan kerayuan berkaitan kebersalahannya (lihat
perenggan 30–33).]

Notes
For cases on intention, see 4(2) Mallal’s Digest (5th Ed, 2018 Reissue)
F paras 1960–1972.

Cases referred to
Eng Sin v PP [1974] 2 MLJ 168; [1974] 1 LNS 33, FC (refd)
PP v Cho Sing Koo & Anor [2015] 4 MLJ 689; [2015] 4 CLJ 491, CA (refd)
G Shamim Reza bin Abdul Samad v PP [2011] 1 MLJ 471; [2009] 6 CLJ 93, FC
(refd)
Tham Kai You & Ors v PP [1977] 1 MLJ 174; [1976] 1 LNS 159, FC (refd)

Legislation referred to
H
Courts of Judicature Act 1964 s 60(1)
Criminal Procedure Code ss 180(1), 182A(1)
Penal Code ss 80, 96, 300, 300(c), 302, 304, 304(a), Chapter IV

I Appeal from: Criminal Trial No TWU-45–10/8 of 2013 (High Court, Tawau)

Abdul Gani bin Zelika (Johari & Amin) for the appellant.
Ahmad Sazilee bin Abdul Khairi (Deputy Public Prosecutor, Attorney General’s
Chambers) for the respondent.
250 Malayan Law Journal [2018] 6 MLJ

Abdul Rahman Sebli JCA (delivering judgment of the court): A

[1] The appellant was initially charged in the High Court at Tawau, Sabah,
with the murder of one Persie Santos Cayanong, an offence punishable with
death under s 302 of the Penal Code. At the end of the prosecution case, the
learned trial judge found that no prima facie case had been established against B
him. He was accordingly acquitted and discharged of the murder charge but
was called upon to enter his defence on the lesser offence of culpable homicide
not amounting to murder under s 304(a) of the Penal Code.

[2] The reason why the learned judge acquitted the appellant of the murder C
charge was because he found that although the appellant intended to cause the
fatal injuries, they were not sufficient in the ordinary course of nature to cause
death, an obvious reference to s 300(c) of the Penal Code.
D
[3] Medical evidence showed that the deceased sustained 23 injuries, 12 of
which were caused by a sharp heavy object such as a parang or chopper. The
forensic pathologist Dr Jessie Hiu (‘PW8’) concluded in her post mortem
report (exh P41) that the cause of death was hypovolemic shock due to or as a
consequence of a chop wound on the deceased’s right forearm and chop E
wounds on his head.

[4] The photos at pp 416–418 of the record of appeal show the severity of
the injuries on the deceased’s right forearm, his right leg, neck and head. PW8’s
expert evidence was that the injuries sustained by the deceased caused severe F
blood loss and drop of blood pressure, resulting in reduced blood supply to
vital organs leading to death.

[5] When called upon to enter his defence on the s 304(a) offence, the
appellant chose to remain silent, whereupon the learned judge proceeded to G
convict him and sentenced him to 18 years imprisonment with effect from the
date of his arrest.

[6] Dissatisfied with the decision to acquit the appellant of the murder
charge, the prosecution appealed to this court. The appeal was allowed and the H
appellant was ordered to enter his defence on the original murder charge. The
conduct of the trial was then taken over by another High Court judge as the
learned judge who initially heard the case had retired. The appellant was also
assigned with a new counsel to defend him.
I
[7] This time around the appellant chose to give unsworn statement from
the dock when he entered his defence. At the conclusion of the trial and having
heard arguments by both sides, the learned judge found the appellant guilty as
charged and sentenced him to death, hence the present appeal before us.
 Norol Rojik bin Jun v Public Prosecutor
[2018] 6 MLJ (Abdul Rahman Sebli JCA) 251

A [8] In his unsworn statement from the dock, the appellant explained why
and how he killed the deceased. We reproduce below the material parts of his
statement:
Kami sampai jam lebih kurang 6.50 pagi dan kami pun naik ke rumah saya dan
B masuk ke bilik saya dan bersarapan disitu. Selepas bersarapan kami berbual sekejap
dan kemudian si Mosidi turun ke bawah dan saya pun ceritakan pada Binga
mengenai si Persie yang telah memaki hamun isteri saya dan menyebabkan kami
sekeluarga sekarang sudah tiada tempat tinggal sendiri. Saya tanya si Binga ‘macam
mana saya masuk dalam bilik saya potong itu orang’ yang bermaksud ‘macam mana
kalau saya masuk ke bilik si Persie dan cederakan dia?’ dan si Binga cakap dia ikut
C saja di belakang saya untuk jaga keselamatan saya. Seterusnya saya buka beg galas
saya dan ambil parang kerja saya.
9. Seterusnya saya berjalan ke bilik Persie iaitu bilik nombor 3 dan saya terus
tendang pintunya sampai terbuka dan saya masuk dan tetak si Persie di lehernya
satu kali di depan isterinya Normah yang juga ada disitu. Selepas menetak saya pun
D berundur sebab saya cuma mau cederakan dia saja supaya dia jera tetapi si Persie
tiba-tiba bangun dan meluru ke arah saya mahu memukul. Bila melihat dia meluru
saya pun rasa takut yang amat sangat dan kemudian saya dapati diri saya macam
hilang kawalan ke atas badan saya sendiri dan perasaan saya macam melihat dalam
mimpi saja. Saya tidak dapat kawal diri saya walaupun saya sedar saya sedang
E melibas parang beberapa kali ke kepalanya. Saya juga hilang kesedaran sehingga
saya tidak boleh ingat samada Persie ada menangkis dengan tangannya atau jika
kepalanya terkena tetakan parang saya sebab tangan saya hanya melibas sebarangan
saja tanpa saya niatkan untuk buat apa-apa. Saya nampak tangannya ada cedera tapi
sekejap saja sebab selepas itu isterinya si Normah pun meluru ke arah saya dan saya
F tidak dapat kawal diri saya dan menyerang Normah dengan parang. Normah kena
tetakan saya di bahagian kening dan saya juga tetak kepalanya beberapa kali tapi
saya tidak pasti berapa kali dan di bahagian mana kena.

[9] The unsworn statement was clearly a confession by the appellant that he
G killed the deceased but avoiding liability by saying that he had no intention to
cause death. This is what he said in para 12 of the statement:
12. Saya disini ingin menjelaskan bahawa saya sebenarnya tidak ada niat mahu
bunuh si Persie. Saya memang mau tetak dia satu kali saja untuk cederakan dia tapi
tidak untuk matikan dia. Kalau saya memang mahu bunuh dia maka saya tidaklah
H akan pergi menyerah diri selepas itu pula. Saya sebenarnya sangka kalau dapat
cederakan dia maka dia akan takut dan keluar dari rumah sewa keluarga isteri saya.
Saya sehingga sekarang tidak dapat jelaskan kenapa selepas Persie menerkam, saya
tiba-tiba hilang kawalan ke atas diri saya sendiri.

I [10] The appellant’s first ground of appeal against conviction was as follows:
The learned High Court Judge should not have called the defence on the charge of
murder as it was obvious that the most important ingredient of murder, ie mens rea
was absent. There was absolutely no evidence at all that the Appellant intended to
murder anyone particularly the deceased.
252 Malayan Law Journal [2018] 6 MLJ

[11] We found no merit in this ground of appeal. First of all, the calling of A
the appellant’s defence to the original murder charge was on the order of this
court, which must be taken as if it was made by the trial judge himself. It was
therefore not open to the succeeding judge to reopen the issue of whether a
prima facie case had been established by the prosecution. Nor was it open to us,
being a court of co-ordinate jurisdiction, to do so. B

[12] The trial judge’s duty after the order was made by this court was only to
consider whether the appellant’s explanation, if any, had cast a reasonable
doubt in the prosecution case. But of course in doing so, the learned judge was C
bound by s 182A(1) of the Criminal Procedure Code (‘the CPC’) to consider
all the evidence adduced before the court, which necessarily includes evidence
adduced by the prosecution at its stage of the case.

[13] It was also contended under the first ground of appeal that the learned D
judge erred in failing to address her mind to the appellant’s defence of
automatism, ‘uncontrolled action’ or temporary insanity which learned
counsel described as ‘amuk’. There is no merit in the contention.

[14] The maxim that a man intends the natural and probable consequences E
of his act is not to be avoided when dealing with the question of intention in
murder trials: Eng Sin v Public Prosecutor [1974] 2 MLJ 168; [1974] 1 LNS
33. To establish any of these defences, expert medical evidence was required
because whether or not the appellant was driven by automatism or temporary
insanity when he killed the deceased is in the realm of medical science. The F
burden was on the appellant to prove these defences on the balance of
probabilities, ie the civil standard of proof.

[15] No such proof was forthcoming from the appellant. As such there was
nothing before the court for the learned judge to come to a finding that the G
appellant was temporarily insane at the time he committed the offence. In any
event, the only reasonable inference to be drawn from the proved facts was that
the killing was intentional as it was motivated by a desire to teach the deceased
a lesson.
H
[16] The presence of motive negates the appellant’s claim of absence of mens
rea, and the learned judge had given her reasons why she found the killing to be
intentional. She was perfectly entitled to come to that finding unless it could be
shown that she got the facts or the law or both facts and law wrong, which was I
not the case here.

[17] As for the second ground of appeal, the appellant’s complaint was that:
The counsel who was assigned by the High Court to represent the Accused in his
 Norol Rojik bin Jun v Public Prosecutor
[2018] 6 MLJ (Abdul Rahman Sebli JCA) 253

A defence was an incompetence (sic) counsel in conducting the defence of the

Appellant since he has no knowledge of what was the evidence given during the
prosecution case and the line of defence of the Appellant presented by the previous
assigned counsel and the Appellant was not fully advised and made understood of
the weight of evidence in making unsworn statement.
B
[18] There are two parts to this ground of appeal. The first is a complaint
that the assigned counsel who took over from the appellant’s previous assigned
counsel was incompetent. The second is that the learned judge failed to explain
to the appellant the weight to be given to his unsworn statement from the dock.
C
[19] First, the complaint against the second assigned counsel. The law on
incompetence of counsel in a criminal trial has been explained by the apex
court in Shamim Reza bin Abdul Samad v Public Prosecutor [2011] 1 MLJ
471; [2009] 6 CLJ 93 where Gopal Sri Ram FCJ delivering the judgment of
D the court said:
In our considered judgment, the incompetence of counsel in the conduct of a
defence in a criminal trial is a ground on which a conviction may be quashed
provided that: (a) such incompetence must be flagrant in the circumstances of the
E given case; and (b) it must have deprived the accused of a fair trial thereby
occasioning a miscarriage of justice. Nothing short will suffice. And in considering
the question, an appellate court must have regard to the conduct of counsel as a
whole and not merely to his or her failure in one or two departments.

F [20] Going by the record of appeal, we must say that the appellant’s
complaint is baseless. There is nothing to support his allegation that the
counsel who took over from the first was flagrantly incompetent and that due
to his incompetence, the appellant had been denied a fair trial, thereby
occasioning a miscarriage of justice.
G
[21] It must be remembered that at that stage of the trial, the counsel who
took over from the first was only dealing with the defence case, which arguably
is less onerous than dealing with the prosecution stage of the case. The
appellant’s allegation that the second counsel had no knowledge of the evidence
H given during the prosecution case is pure speculation and must be disregarded.

[22] The allegation of incompetence directed at the second assigned counsel

is unfair and should not have been made as the lawyer was not given the
opportunity to defend himself against such serious allegation as dereliction of
I duty by an attorney in defending a person charged with a capital offence.

[23] The fact is, the appellant knew exactly what the case against him was, as
he was present and represented by the first assigned counsel throughout the
case for the prosecution. There was nothing complicated in the evidence of the
254 Malayan Law Journal [2018] 6 MLJ

prosecution witnesses, particularly the evidence of the deceased’s wife who A

witnessed the attack and who herself was slashed by the appellant with the same
parang that he used to slash the deceased.

[24] Given the nature of the evidence, it is far-fetched to say that the
appellant did not fully understand what the case against him was. More B
importantly, he did not dispute that the injuries were caused by him. His
dispute was over the question of intention to cause death.

[25] With regard to the second part of the second ground of appeal, the C
contention by learned counsel in his written submissions was that since the
appellant had chosen to give unsworn statement from the dock, the learned
judge was under a duty, before the appellant proceeded to enter his defence, to
explain to him the weight that the court would give to such unsworn statement
from the dock. D

[26] We found nothing of substance to the argument. What weight the

court would give to the unsworn statement would depend on the court’s
assessment of the entire evidence before the court and not based on the
unsworn statement alone. It would be wrong for the learned judge to tell the E
appellant what weight she would give to his unsworn statement when he had
not even uttered a word in his defence.

[27] Since the appellant had not even started with his defence, the learned
judge would not know what he was going to say in his unsworn statement, or F
whether he was going to give written or oral unsworn statement. If the learned
judge were to tell the appellant that she would give less weight to his unsworn
statement, that would be tantamount to prejudging the defence case. In any
event, the appellant’s counsel was there to advise him on the pros and cons of
giving an unsworn statement from the dock. G

[28] Further, there is no dispute that when the appellant was called upon to
enter his defence, the court interpreter had explained to him the three options
open to him in making his defence, and he chose to give an unsworn statement
from the dock. Obviously, he had been properly advised by his counsel before H
making the choice. This was confirmed by the appellant himself in his unsworn
statement when he said:
1. Saya memilih untuk memberi keterangan bertulis dari kandang tertuduh. Saya
memilih cara ini selepas mendengar penjelasan oleh peguam saya pada hari jumaat
23 Oktober 2015 di Penjara Tawau semasa dia datang melawat. I

[29] The third ground of appeal was this:

The learned High Court Judge had failed to consider the evidence before her in
 Norol Rojik bin Jun v Public Prosecutor
[2018] 6 MLJ (Abdul Rahman Sebli JCA) 255

A totality before convicting the appellant had the learned High Court Judge applied
her mind to the content of exhibit D1, had she applied her mind to the full content
of exhibit D1 she would have found that the Appellant’s statement contained
therein shall cast a reasonable doubt to the prosecution case and such failure had
resulted the deprivation of the Appellant from being acquitted of the offence
B charged.

[30] The first thing to note with regard to this ground is that the appellant
himself confirmed that the contents of his cautioned statement (exh D1) were
in most parts similar to the contents of his unsworn statement from the dock.
C This is what he said in para 2 of his unsworn statement:
2. Saya dengan ini menyatakan bahawa kebanyakan keterangan ini adalah sama
dengan kandungan Pemeriksaan dalam Percakapan saya dibawah seksyen 112 KPJ
yang mana saya berikan pada C/Insp Ladamah Bin Haji Sulaiman pada
17/11/2011. Oleh itu saya mohon agar keterangan dalam percakapan tersebut
D ditandakan sebagai eksibit D1.

[31] We have compared the appellant’s cautioned statement with his

unsworn statement from the dock and it is true that most parts of his unsworn
statement are similar to his cautioned statement. In fact, on all material issues,
E what he said in his unsworn statement was a repetition of what he said in his
cautioned statement. We had perused the learned judge’s grounds of judgment
and found that Her Ladyship had indeed taken into consideration the
appellant’s unsworn statement when at para 4, p 5 of the record of appeal, she
stated as follows:
F
… this court is of the view, the unsworn statement given by the accused from the
dock is considered as an evidence and this goes on further for this court to evaluate
the accused’s evidence and what weight is to be given.

G [32] Thus, although the learned judge did not refer to the appellant’s
cautioned statement in her grounds of judgment, the omission had not
occasioned any substantial miscarriage of justice and is curable by the proviso
to s 60(1) of the Courts of Judicature Act 1964. For context, we reproduce
below the whole of s 60(1):
H 60(1) At the hearing of an appeal the Court of Appeal shall hear the appellant or his
advocate, if he appears, and, if it thinks fit, the respondent or his advocate in reply,
and the Court of Appeal may thereupon confirm, reverse or vary the decision of the
High Court, or may order a retrial or may remit the matter with the opinion of the
Court of Appeal thereon to the trial court, or may make such other order in the
I manner as it may seem just, and may by that order exercise any power which the trial
court might have exercised:
Provided that the Court of Appeal may, notwithstanding that it is of opinion that a
point raised in the appeal might be decided in favour of the appellant, dismiss the
appeal of it considers that no substantial miscarriage of justice has occurred.
256 Malayan Law Journal [2018] 6 MLJ

[33] It is clear from her grounds of judgment that the learned trial judge had A
considered the appellant’s defence with meticulous care and having done that,
found that his explanation did not cast any reasonable doubt in her mind as to
the guilt of the appellant. On the crucial issue of intention to cause death, the
learned judge referred to Tham Kai You & Ors v Public Prosecutor [1977] 1 MLJ
174; [1976] 1 LNS 159 and then correctly applied the ratio decidendi of the B
case to the proved facts when she said:
6. The facts remained established in the prosecution stage that there were 23 injuries
all over the accused’s body and this was consistent with injuries caused by a ‘parang’.
The deceased’s cause of death was due by chop wounds on the right forearm which
cut the ulnar artery and this was never denied by the accused that he had caused C
these injuries.
7. 23 injuries on the body was more than just a lesson to the deceased and those
injuries the deceased sustained to the head and neck, can be fatal. This court had to
agree with the prosecution that the seriousness of the injury and the type of weapon
D
used by the accused intended to kill the victim. The accused came armed, he
repeatedly slashed the deceased despite the plea to stop and this leads to a conclusion
that he had intended to kill the accused bearing in mind that lack of force as what
contended by the defence counsel does not necessarily lack the intention to kill.

E
[34] The learned judge had in the earlier part of her grounds of judgment
(see p 13) observed:
10. This intention of the accused was explicit because the accused barged into the
room armed with ‘parang’ and attacked the deceased who was then in bed, slashing
him on the head and neck. When the deceased attempted to fend off the attack he F
was slashed on the feet and legs; and despite the intervention and plea by PW3 to
the accused to stop the attack on her husband (the deceased), the accused did not
stop but continued to chase after the deceased who attempted to flee the room
slashing him multiple times on the back of the chest, forearm and buttocks. PW3
who attempted to stop the accused was herself slashed and sustained several injuries.
G
11. Furthermore, ‘parang’ is a deadly weapon, once used it will either cause serious
injuries or death. Therefore the use of such weapon is deemed as an indicator of
intention possessed by the accused. The nature and number of injuries the deceased
sustained and weapon used to inflict these injuries leaves no doubt as to the intent
of the accused to inflict serious body injuries to the deceased.
H

[35] The fourth ground of appeal was as follows:

The learned High Court Judge had failed to sufficiently consider whether the
Appellant’s unsworn statement and his cautioned statement in exhibit D1 is
credible or otherwise and nowhere in her grounds of judgment that she addressed I
the issue and this failure is a misdirection and the Appellant therefore is entitled to
be acquitted of the offence charged.

[36] This ground is likewise without any merit. Page 70 of the record of
 Norol Rojik bin Jun v Public Prosecutor
[2018] 6 MLJ (Abdul Rahman Sebli JCA) 257

A appeal shows that the learned judge had recounted the details of what the
appellant said in his unsworn statement, which as we said, was a repetition of
what he said in his cautioned statement. As to the weight to be given to the
appellant’s unsworn statement from the dock, the learned judge had directed
herself to the law correctly when she said:
B
3. The evidence of the accused from the dock at first instance has to be given
consideration as part of his evidence before the court. However, the issue on what
weight to be attached to such statement arise. The court should give less weight to
the accused’s evidence because the prosecution has no means to verify its veracity.
The law has been settled in Dato’ Seri Anwar Ibrahim v PP & Another Appeal [2015]
C 2 CLJ 145, the Federal Court have said as follows:
[202] We accept that the courts below did not explicitly consider the political
conspiracy defence which was raised by the appellant in his unsworn statement
from the dock. In law, a trial judge will not give much weight to what an accused
has said in his unsworn statement as he is not subject to cross-examination by the
D prosecution nor can he be questioned by the trial judge (Lee Boon Gan v Regina
[1954] 1 LNS 39; [1954] 1 MLJ 103; Udayar Alagan & Ors v PP [1961] 1 LNS
146; [1962] 1 MLJ 39; Mohamed Salleh v PP [1968] 1 LNS 80; [1969] 1 MLJ
104; Juraimi Husin v PP [1998] 2 CLJ 383; [1998] 1 MLJ 537).

E [37] As for the fifth ground of appeal, the complaint was that:
The learned High Court Judge has misdirected herself when she ruled that since the
Appellant had brought with him ‘parang’ which according to her not related to the
Appellant’s job as a welder, it was a clear meditated murder, whereas, the said finding
F was based on suspicion and suspicion or conjecture is misplaced in murder trial and
as such the learned High Court Judge erred in her finding.

[38] The issue raised was inextricably linked to the question of intention to
cause death. With due respect to learned counsel, we fail to see how the learned
G judge’s ‘ruling’ on the parang can be said to be a misdirection. In the first place,
it was not even a ruling. It was necessary for the learned judge to refer to the
parang in her deliberation for the simple reason that it was the murder weapon.
It would be wrong for her not to do so.

H [39] In finding that the killing was intentional, it is clear that the learned
judge was not only guided by the fact that the appellant had brought the parang
with him. It was based on all the surrounding facts and circumstances of the
case and certainly not based on suspicion or conjecture as alleged by the
appellant.
I
[40] Of course learned counsel was right in saying that the mere fact that the
appellant brought a parang with him is not evidence of intention to kill. But as
every lawyer with some basic knowledge of the law knows, the golden rule on
evaluation of evidence is that except where there is direct evidence of
258 Malayan Law Journal [2018] 6 MLJ

admission, the evidence must be considered in its entirety and not in bits and A
pieces.

[41] In this case there was no dispute that the appellant’s intention from the
start was to attack the deceased while arming himself with a parang, and the
parang was indeed used to slash the deceased to death. Thus, his act of bringing B
the parang before the attack is not neutral evidence as counsel seems to be
suggesting. It was intended to be used as the weapon of offence by the
appellant.
C
[42] The sixth ground of appeal was:
The learned High Court Judge did not view the whole of the evidence objectively
from all angles with the result that the Appellant had lost the chance which was
fairly open to him for being acquitted.
D
[43] There is no truth to this complaint. The learned judge had considered
the evidence carefully, as can be seen from her grounds of judgment which run
into 24 pages. In fact the learned judge had gone beyond what was required of
her when she embarked on a re-evaluation of the prosecution’s evidence to E
determine whether a prima facie case had been established under the heading
‘EVALUATION AND FINDINGS AT THE END OF THE
PROSECUTION’S CASE’ (see pp 63–70 of the record of appeal). So, if at all
the learned judge had erred, she had in fact erred in favour of the appellant.
F
[44] At the conclusion of the trial, what s 182A(1) of the CPC requires is for
the court to consider all the evidence in determining whether the case had been
proved beyond reasonable doubt. This does not mean however that the court
must decide all over again whether a prima facie case had been established by
the prosecution. That is a requirement of s 180(1) of the CPC at the close of the G
prosecution case and not a requirement of s 182A(1) at the close of the defence
case.

[45] It bears repeating that the learned judge’s duty at the conclusion of the
trial was only to determine whether the appellant’s explanation had cast a H
reasonable doubt in her mind as to his guilt and whether the case had been
proved beyond any reasonable doubt by the prosecution, and not to determine
whether a prima facie case had been established.

[46] As for grounds of appeal Nos 7, 8 and 9, we shall deal with them I
together as they are inter-related. The grounds are as follows:
Ground 7:
The learned High Court Judge failed to appreciate that the circumstantial evidence
 Norol Rojik bin Jun v Public Prosecutor
[2018] 6 MLJ (Abdul Rahman Sebli JCA) 259

A relied upon by the prosecution which taken together with the other facts and
circumstances do not cumulative effect of bringing a reasonable and irresistible
inference that the Appellant had committed the offence of murder.
Ground 8:
B The learned High Court Judge ought to have given the benefit of the doubt to the
Appellant.
Ground 9:
The learned High Court Judge failed to appreciate the evidence of the Appellant as
C a whole to the conclusion as to the Appellant defence and that the Appellant is
entitle to have been convicted under lesser offence of section 304 of Penal Code.

[47] Taking these grounds cumulatively, our comment is that once the
learned judge had made a finding of fact that the appellant intended to cause
D the deceased’s death, the question that the appellant was entitled to be
convicted of the lesser offence of culpable homicide not amounting to murder
under s 304 of the Penal Code does not arise at all.

[48] Was there any reason for the learned judge to give the appellant the
E benefit of the doubt, as suggested by learned counsel? But first, what is meant
by ‘reasonable doubt’? This court in Public Prosecutor v Cho Sing Koo &
Anor [2015] 4 MLJ 689; [2015] 4 CLJ 491 had occasion to deal with this point
at paras [34] and [35] as follows:
F [34] We wish to reiterate that the burden on the prosecution is to prove its case
beyond reasonable doubt, not beyond the shadow or flicker of a doubt. That is the
degree of proof required and there is no dearth of authority on what constitutes
‘reasonable doubt’. Unless this is properly understood there is the danger that in
giving maximum evaluation to the evidence of the prosecution at the close of its case
G or in considering the evidence of the accused at the close of the defence case, a
burden that is heavier and more onerous than what the law requires is demanded of
the prosecution. Justice is not better served by acquitting a guilty man than it is to
convict an innocent one.
[35] Perhaps we should reproduce the oft-quoted pronouncement of Lord Denning
H in Miller v Minister of Pensions [1947] 2 All ER 372 to better understand the correct
burden on the prosecution:
That degree is well settled. It need not reach certainty, but must carry a high
degree of probability. Proof beyond reasonable doubt does not mean proof
beyond the shadow of a doubt. The law will fail to protect the community if it
I admitted fanciful possibilities to deflect the course of justice. If the evidence is so
strong against a man as to leave only a remote possibility in his favour which can
be dismissed with the sentence ‘of course it is possible but not in the least
probable’, the case is proved beyond reasonable doubt, but nothing short of that
will suffice.
260 Malayan Law Journal [2018] 6 MLJ

[49] On the proved facts of the present case, we were of the view that the A
learned judge was absolutely right in finding that the murder charge had been
proved beyond any reasonable doubt. On the totality of evidence and the
probabilities of the case, the only option open to the learned judge was to
convict the appellant of the offence of murder as charged and not the offence
of culpable homicide not amounting to murder under s 304 of the Penal Code B
or any other lesser offence.

[50] The appellant’s act was clearly an act of murder within the meaning of
s 300 para (a) of the Penal Code. The provision reads:
C
300 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.

D
[51] None of the general exceptions under Chapter IV of the Penal Code
applied in the appellant’s favour as his defence of lack of intention to cause
death did not fit in with any of the defences under Chapter IV, such as the
defence of accident under s 80, private defence under s 96 or grave and sudden
provocation under Exception 1 to s 300 of the Penal Code.
E
[52] As for the defence of temporary insanity raised by the appellant in his
first ground of appeal, we have mentioned that without expert medical
evidence, the defence was not sustainable.
F
[53] The appellant’s defence, as we said, was a confession and avoidance, ie
confessing to the killing but avoiding liability by saying that he did not intend
to cause death. This line of defence falls outside the scope of the general
exceptions under Chapter IV of the Penal Code. In any event, the learned trial
judge had found that the appellant intended to cause the deceased’s death. We G
had no reason to disturb this finding of fact.

[54] It was for all the foregoing reasons that we dismissed the appellant’s
appeal and affirmed the decision of the High Court.
H
Appeal dismissed; conviction and sentence affirmed.

Reported by Ashok Kumar