IN THE COURT OF APPEAL OF MALAYSIA
(APPELLATE JURISDICTION) CRIMINAL APPEAL NO: N-05-358-12/2014
PUBLIC PROSECUTOR … RESPONDENT
(In the Matter of High Court of Malaya at Seremban Criminal Trial No: 45B-3-09/2013)
Public Prosecutor And
Arumugam a/l Ramadas
ABANG ISKANDAR, JCA AHMADI HAJI ASNAWI, JCA ZAMANI A. RAHIM, JCA
 Arumugam a/l Ramadas, the appellant was charged and tried before the High Court of Seremban for an offence of murder of Ramadas a/l Saniasi, (‘the deceased’) under section 302 of the Penal Code. The charge reads :
“Bahawa kamu pada 10.3.2013, jam lebih kurang 7.00 malam di Lot 73A, Kampung Kuala Lukut, di dalam Daerah Port Dickson, di dalam Negeri, Negeri Sembilan telah melakukan kesalahan bunuh menyebabkan kematian ke atas Ramadas a/l Saniasi (570810-08-6331) dan dengan demikian kamu telah melakukan kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Kesiksaan.”
 At the end of the trial, the appellant was found guilty, convicted and sentenced to death by the High Court Judge. Hence this appeal.
The Prosecution’s Case
 The appellant was the son of the deceased and the grandson of Seman Chellam a/p Appana (SP6). The appellant and SP6 lived at Lot 73A, Kampung Kuala Lukut, Port Dickson. It was also the scene of the murder.
 According to SP6, she was at home with the deceased and the appellant. The appellant and the deceased were quarreling. The appellant grabbed a piece of wood, exhibit P11A and hit the deceased with it. SP6 witnessed the assault. As she was fearful, SP6 ran out of
the house. She did not know how many times the appellant struck the blows on the deceased with exhibit P11A.
 Thanabalan a/l Ramur Murthy (SP10) was the appellant’s cousin and the deceased was his uncle. On the day in question, he went to the deceased’s house. When SP10 arrived there, he noticed the deceased sprawling on the floor covered with blood. SP10 then called SK Siamala a/p Kandasamy (SP7) who was the sister-in-law of the appellant. SP10 asked SP7 to return home.
 In the meantime, SP10 walked around the house to see whether anyone was in the house. From outside the house, SP10 noticed the appellant was in the room. He called the appellant out of the room. SP10 enquired from the appellant whether he had assaulted the deceased. The appellant denied. However, SP10 noticed that the appellant’s hands and trousers were smeared with blood. Again SP10 questioned the appellant whether he had beaten the deceased and this time the appellant replied he did.
 Yap Chow Wun (SP4) was the neighbour who lived adjacent to the deceased’s house. According to SP4, he was watching TV when he heard his neighbours were quarreling. SP4 noticed the appellant was trading blows with Nugulan. A short while later, SP7 arrived home. She immediately called the ambulance as the deceased was bleeding profusely.
 Meanwhile Cons. Muhammad Din bin Omar (SP5) and Cons. Sharipudin bin Ruslan were on patrol duty when they were summoned to the scene. Upon arrival, SP5 went into the house. He met the appellant
sitting on the bed, staring into empty space. SP5 identified himself to the appellant and at the same time requested for the appellant’s identity card. The appellant took his identity card from the cupboard and gave it to SP5. SP5 enquired from the appellant the condition of the deceased. The appellant replied that the deceased was in grave condition.
 SP7 went to look for SP6 who ran out from the house. SP7 met SP6 at a nearby temple. SP6 told SP7 that the appellant had a fight with the deceased, and that the appellant had hit the deceased with a piece of wood, exhibit P11A.
 The wood, exhibit P11A was stained with the blood. Exhibit P11A was identified by SP6 as the weapon used by the appellant to hit the deceased’s head.
 The deceased’s body was removed to Port Dickson Hospital where the postmortem was conducted by a Forensic Consultant, Dr. Sharifah Safoorah bt Syed Alwi Al-Aidrus (SP2). On an external examination, SP2 found the following marks of trauma on the deceased.
Marks of trauma
a) Right periorbital haematoma;
b) Left lateral aspect of eyebrow, laceration, 4.3×0.4 cm;
c) Left upper eyelid, abrasion, 2.7×0.3 cm
d) Left cheek, laceration, 4.8×0.6×4.0 cm exploration of the wound showed the underlying fractured maxilla and nasal septum;
e) Left side nose, laceration, 0.9×0.5 cm
f) Left side of face, near ear abrasion, 2.0×1.5 cm;
g) Left ear, lower pole laceration, 1.5×0.6 cm;
h) Left side of head, parietal region linear abrasion,
1.9×0.3 cm with bruise of 1.7×1.6 cm;
i) Posterior aspect of the left ear, abrasion with bruise, 5.2×4 cm;
j) Left side of neck minute abrasions (5);
k) Left back of shoulder linear abrasion, 2.6×0.4 cm;
l) Right elbow two bruises, 3.0×1.7 cm and 1.5×1.4 cm;
m) Left elbow bruise, 1.8×1.0 cm;
n) Dorsum of left hand, medial laceration, 4.5×1.0 cm and another lateral, 2.0×0.6 cm, exposing the tendons.
On internal examination, the injuries that were seen were, inter alia: Head
The scalp showed subgaleal haematoma on the left temporal region. There was also bilateral temporalis muscle haematoma.
Both carotids showed streakes of atheroma. The hyoid bone showed fracture of both horns with associated tissue haematoma.
The ribcage showed fracture of the sternum at T4 level.
There was also intercostals muscle bruise involving the left 8th and 9th ribs. The opened bronchial tree contained blood. Serial sections of the lung parenchyma showed ‘leopard skin appearance’ of inhaled blood. The tracheal cartilages and oesophageal mucosa contained blood.
 SP2 opined that the cause of death was due to blockage of the trachea as a result the deceased’s bleeding and inhaling the blood which was caused by considerable force of blunt trauma to the deceased’s face.
 Police investigation revealed that during the fight the appellant was wearing a pair of jeans of Texas Blue brand, exhibits P7E (i). Exhibits P7E (i) and P11A were recovered at the instance of the appellant. The government chemist, Siti Mastura bt Mohamed (SP8) confirmed that the DNA profile of the deceased was detected on the exhibits P7E (i) and P11A.
 The appellant gave evidence on oath. On the day in question, the deceased and SP6 were at home at Lot 73A, Kampung Kuala Lukut, Port Dickson.
 According to the appellant, he was drinking liquor outside the house. He heard the deceased fell down three times on the floor inside the house. The deceased’s head hit the wooden table which caused the table to break partially.
 The appellant continued drinking. After a while, the appellant got up and noticed the deceased was lying on the floor covered with blood. He did not render any assistance to the deceased. The appellant went into the room and closed the door. His grandmother, SP6 was in the room. The appellant slept.
 The appellant denied that he hit the deceased with the wood, exhibit P11A. The appellant, however, claimed that he was in an intoxicated state.
 Before us, counsel for the appellant canvassed four (4) grounds of appeal. They were as follows:
a) SP6 was not a credible witness;
b) The appellant had no motive to kill the deceased: see PP v Sarjit Kaur a/p Najar Singh  1 MLJ 184;
c) There was insufficient evidence to link the appellant with the wood, exhibit P11A; and
d) Both the appellant and the deceased were intoxicated at the time of the deceased’s death: see Kenneth Fook Mun Lee v PP  2 MLJ 130.
 Alternatively, having regard to the facts and circumtances of the case, counsel for the appellant prayed that the original charge of murder under section 302 of the Penal Code be reduced to one of culpable homicide not amounting to murder under section 304 (a) of the same Code.
 We propose to deal with the issues, not necessarily in the order or sequence, raised by the appellant’s learned counsel.
 The first issue – according to SP6, both the deceased and the appellant were quarreling but no evidence was adduced as to the reason or cause why they quarreled. As such learned counsel argued that the appellant had no motive to kill the deceased.
 Ordinarily, a motive for committing a crime is not an ingredient of the offence. If, however, it can be established, especially where the prosecution’s case is based solely on circumstantial evidence, it is an essential factor that ought to be considered. In the case of Lim Hean Chong @ Teo Heam Chong @ Teo Hean Chong v PP  1 MLJ 149, the Court of Appeal said:
“Although in general motive of a crime is not an essential factor that ought to be considered, but where the prosecution’s case is based solely on circumstantial evidence, motive is important in such cases to tilt the scale against the accused. In Ratanlal and Dhirajlal Law of Crimes, (24th Ed), Vol. 22 at p 1448, the learned author articulated:
“… Ordinarily, when there is sufficient, direct and circumstantial, evidence connecting the accused with the commission of the offence the proof of motive become unimportant. But where the entire prosecution case rests on circumstantial evidence, motive undoubtedly plays an important part in such cases to tilt the scale against the accused.”
 In this case, the prosecution’s case does not rest entirely on circumstantial evidence. The prosecution’s case consisted of direct evidence of SP6 who witnessed the assault on the deceased by the appellant, the medical evidence of the deceased given by the Forensic Consultant, SP2, the scientific and forensic evidence of the government chemist, Siti Mastura bt Mohamed (SP8) connecting the appellant with the commission of murder of the deceased. A non-production of the evidence to prove the motive of the crime is not really relevant and important in the circumstances of this case.
 The first and third issues are dealt with together. It is undeniable that SP6 is the sole eye witness in this case. At the beginning of her evidence in examination in chief, SP6 said the deceased sustained his injuries as he fell down three times with his face smashed (“tersembam”) on the floor.
 Learned Deputy then applied the case to stand down for SP6 to refresh her memory, though this procedure appears to be improper. On resumption, SP6 changed her testimony by saying that the deceased
was assaulted by the appellant with a piece of wood, exhibit P11A. SP6 was asked to identify the exhibit P11A.
 SP6 was, however, recalled to identify the wood, P11A: see p 61 of the Appeal Record, Vol. II where she testified in examination-in-chief as follows:
S: Semalam aunty ada kata Arumugam (i.e. appellant) pukul
Ramadas (i.e deceased) dengan kayu J: Ya
S: Kalau saya tunjukkan boleh cam tak?
S: Adakah kayu ini yang digunakan?
 In cross examination at p.62 of the Appeal Record, Vol. I, learned counsel sought to lead SP6 to say that she could not identify the wood, exhibit P11A being the weapon used to assault the deceased. The question and answer in cross examination run as follows:
S: Setuju dengan saya kalau saya katakan, puan sendiri tidak pasti
sama ada, ada kayu digunakan oleh ….
J: Memang ini kayu yang digunakan untuk pukul Ramadas (i.e
deceased). Arumugam (i.e appellant) bila angkat kayu itu, saya dah lari dari rumah.
 In re-examination at p.62 of the Appeal Record, Vol. I, SP6 said that she was scared when the appellant quarreled with the deceased. She did not see the appellant hit the deceased as she ran out the house. With the assistance of the interpreter, with much difficulty, the trial judge
sought the confirmation from SP6 whether she saw the appellant assaulted the deceased. At p.65 of the Appeal Record, Vol. I, the record of proceedings read, inter alia, as follows:
– Dia nampak atau tidak pukul?
J: Masa dia pukul itu dia lari
– Nampak atau tidak dia pukul?
J: Nampak dan dia lari
– Lagi sekali saya tanya, nampak atau tidak dia pukul?
J: Ya, saya ada nampak dia pukul
 Be that as it may, according to SP2, the injuries to the head and face of the deceased were inflicted with considerable force as the hyoid bone was fractured on both horns and the ribcase was also fractured at the sternum at T4 level. SP2 also opined that the wood, exhibit P11A, could have caused the injuries and the chances of survival were slim.
 The government chemist, SP8 had conducted the DNA analysis on the wood, exhibit P11A and a pair of jeans of Texas Blue brand, exhibit P7E(i). SP8 confirmed that the DNA profile of the deceased was detected on the exhibits P11A and P7E(i). There was evidence that the exhibit P7E (i) was the appellant’s jeans which was worn by him at all material time. As exhibit P7E(i) was stained with the DNA profile of the deceased, it is reasonable to infer that the appellant had come into physical contact with the injured deceased. This is supported by the
evidence of SP10 who noticed the appellant’s hands were stained with blood.
 The exhibit P11A was also stained with human blood which SP8 confirmed to be that of the DNA profile of the deceased. The exhibit P11A was recovered at the instance of the appellant. Therefore, it is reasonable to conclude that exhibit P11A was the murder weapon. The evidence of SP6 confirmed this.
 SP6 is no doubt an important eye witness for the prosecution. When giving evidence, she was placed between the devil and the deep blue sea. The deceased was her son, whilst the appellant was her grandson. The trial judge had evaluated and considered her evidence carefully. At p.208 of the Appeal Record, Vol. 2, the trial judge wrote:
“I have given due consideration and evaluated the evidence of PW 6. Although she did give contradicting versions on the material aspect of the case, she did salvage her evidence after being questioned further in re-examination. I find that her evidence can be accepted as trustworthy.
In any event, her evidence is also supported by the evidence of PW7 to whom she had informed that the Accused did hit the deceased.”
And at pp. 222-223 of the same Appeal Record, the trial judge wrote:
“Applying the principle stated in the above case, the evidence of PW 6 and PW 10 have been tested through vigorous cross examination and was found to be consistent with the flow of the other evidence of the prosecution witnesses and the circumstances of the case.
Therefore, after giving a maximum evaluation of the evidence of the prosecution witnesses, I found that they are credible witnesses and there is no reason for them to lie as to the incident.”
 The trial judge had carried out a maximum evaluation of the evidence adduced by the prosecution, including the evidence of SP6. SP6’s evidence was found to be trustworthy and credible. This is a question of fact involving the credibility of a witness. It is within the province of the trial judge and the appellate court is slow to intervene: In the case of Wan Marzuki Wan Abdullah v PP  4 CLJ 63, the Court of Appeal observed as follows:
“In our judgment the judge was certainly entitled to do that. On the facts of this case he was justified in so doing. There is clear authority for the proposition that in an appeal of this nature which turns on questions of fact particularly in relation to issues of credibility, this court will be reluctant to interfere with the findings made by the primary trier of fact (emphasis mine).”
 Further, in the present appeal, we were of the view that the nature of the injuries sustained by the deceased showed the intention of the appellant to cause serious bodily injury to the deceased. In Tan Buck Tee v PP  1 LNS 30, Thompson CJ said:
“There was the body with five appalling wounds on it, wounds penetrating to the heart and liver, which must, have been caused by violent blows with a heavy sharp instrument like an axe. In the absence of anything else, whoever inflicted those blows must have intended to kill the person on whom they were inflicted. There was no evidence as to the circumstances surrounding the killing. No question of insanity or provocation or selfdefence or anything else was raised by the defence. There was not a scrap of evidence with which any such defence could be even remotely linked up. The only question for the jury to consider was whether they
were satisfied beyond reasonable doubt that it was the appellant who inflicted the injuries. If they were so satisfied then it was their duty to say he was guilty of murder. If they were not so satisfied then it was their duty to say he was not guilty. In these circumstances it would have been quite adequate had the judge merely told the jury that murder is the deliberate killing by one human being of another, that is killing with the intention to kill (emphasis mine).”
 Tan Buck Tee, (supra) was referred to in Duis Akim & Ors v PP  9 CLJ 692 where the Federal Court observed as follows:
“ Now, element (d) deals with mens rea. It is settled law that for the offence or murder the mens rea element can be imputed from the injuries inflicted upon a deceased.
 In Tham Kai Yau & Ors v PP  1 LNS 159;  1 MLJ
174 the then Federal Court said this at pp 176, 177:
The deliberate use by some men of dangerous weapons at another leads to the irresistible inference that their intention is to cause death. This inference should therefore make it a simple matter to come to a decision as to intention, in any case, such as the present, where the weapons used by the appellants were deadly weapons and where the person killed was struck more than one blow.
 The fourth issue – the trial judge has failed to consider that at all material time the appellant and the deceased were intoxicated. Because of his intoxication, he did not know what he was doing and neither did he run away from the scene of the murder.
 In the instant case, the appellant’s defence was that he totally denied assaulting the deceased with the wood, exhibit P11A. In other words, what he was saying was that there was no violent or physical
contact between him and the deceased. That being the case, the appellant’s drunkedness, if any, has no connection with the death of the deceased. Thus, the stand taken by the appellant in his defence does not warrant the trial judge to consider the issue of the appellant’s intoxication. No miscarriage of justice has occasioned upon him in the circumstances of this case.
 Finally, as regard learned counsel’s plea that in the circumstances of this case, we ought to find a case of culpable homicide against the appellant. In determining whether the appellant’s act in assaulting the deceased is one of murder or one of culpable homicide, we stand guided by the Federal Court case of PP v Megat Shahrizat Megat Shahrur  8 CLJ 893 wherein the case of Tham Kai Yau & Ors, (supra) was referred to. It was held that “whether the offence is culpable homicide or murder, depends upon the degree of risk to human life. If death is the likely result, it is culpable homicide, if death is the most probable result, it is murder.”
 Applying the test in Tham Kai Yau & Ors, (supra), and based on the serious injuries sustained by the deceased and the circumstances under which the offence was committed, we found no cogent reasons to reduce the original charge of murder to a lesser charge of culpable homicide under section 304(a) of the Penal Code as pleaded by learned counsel.
 We agreed with the trial judge that Her Ladyship had directed herself correctly when she found the prosecution had proved its case
against the appellant beyond reasonable and the appellant had failed to raise any reasonable doubt on the prosecution’s case.
 For the reasons stated above, we dismissed the appeal and affirmed the conviction for murder and the sentence of death imposed by the High Court.
Date: 11 January 2016 (ZAMANI A. RAHIM)
Court of Appeal Malaysia
For the appellant : Karthig Shan
No. 309-A-1 Taman AST Jalan Sungai Ujong 70200 Seremban Negeri Sembilan
For the respondent : Tengku Intan Suraya bt Tengku Ismail
Deputy Public Prosecutor The Attorney General’s Chambers No. 45 Persiaran Perdana 62100 Putrajaya