DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA [BIDANGKUASA RAYUAN]
MAHKAMAH RAYUAN RAYUAN JENAYAH NO: N-05-459-2010
(Perbicaraan Jenayah Negeri Sembilan No.: 45-12-2009)
BALAMURUGAN A/L NAGARAJU PERAYU
(MAHKAMAH TINGGI SEREMBAN PERBICARAAN JENAYAH NO: 45-12-2009 PENDAKWA RAYA V BALAMURUGAN A/L NAGARAJU)
Linton Albert, JCA Mohtarudin Baki, JCA Mohd Zawawi Salleh JCA
JUDGMENT OF THE COURT
 The Appellant was charge with the following offence:
“Bahawa kamu pada 16.8.2008 jam lebih kurang 12.40 pagi di rumah No.299, Lorong 7, Taman Kelab Tuanku Mambau, di dalam daerah Seremban, di dalam negeri Negeri Sembilan dengan niat membunuh dan telah menyebabkan kematian kepada GANTIMADI A/P KANAGANINKAM, KPT NO: 650615-06-5236, dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 302 Kanun Keseksaan dan boleh dihukum di bawah peruntukan yang sama. ”
 The Appellant was tried at the Seremban High Court. At the end of defence case, the Appellant was convicted and sentenced to death. Aggrieved by the learned trial judge’s decision, the Appellant now appeals to this Court.
 The conviction and sentence of the Appellant has been assailed on the following grounds:
(a) That the learned trial judge had misdirected himself when he failed to rule that the prosecution had failed to prove prima facie of murder;
(b) The absence of fingerprint and/or DNA evidence was fatal to the prosecution’s case;
(c) That the learned trial judge placed too much reliance on SP4’s evidence with regards to the Appellant’s confession; and
(d) The learned trial judge misdirected himself when he failed to appreciate the defence of intoxication.
 On the other hand, learned Deputy Public Prosecutor submitted that the prosecution had proved the guilt of the Appellant beyond reasonable doubt and urged this court to affirm the conviction and sentence passed by the High Court and the appeal should be dismissed.
 We have heard learned counsel for the Appellant and learned Deputy Public Prosecutor and have gone through the record available before us. There is no ground for us to interfere with the decision of the learned judge. We unanimously dismissed the appeal and affirmed the conviction and sentence passed by the High Court.
 We now give the reasons for our decision.
 The prosecution’s key witness, Sri Naga Jothi (SP7) was the deceased’s daughter. They were living at Mambau at the material time. On 16.8.2008, at about 12.30 a.m., SP7 was awaken by her mother’s screaming. She sprinted through her bedroom door and saw the Appellant standing in front of her mother’s bedroom, holding her mother’s handbag and an axe.
 SP7 confronted the Appellant. The Appellant thrown the axe towards the sofa and attacked SP7. He slapped her face and straggled her. SP7 cried for help and the Appellant fled the scene.
 SP7 checked on her mother and found the deceased lying on the bed in a pool of blood. She went to her neighbour to seek help.
 At about 12.40 a.m., Pani Selvam (SP4) received a call from the Appellant in which the Appellant asked SP4 to send him to Seremban 2. SP4 refused as it was late. However, the Appellant called SP4 again and told SP4 that he attacked the deceased.
 SP4 co-operated fully with the police during the investigation and led to the Appellant’s arrest.
 Meanwhile, the deceased was taken to Kuala Lumpur Hospital but was pronounced dead on the same day, at 6.15 p.m. Autopsy on the deceased’s body was performed by the pathologists, Dr Mohd Shah bin Mahmood (SP6). He confirmed that there were 11 injuries on the deceased’s head, body and forearm. The cause of death was ‘severe head injury due to blunt trauma to the head’.
 The Appellant gave evidence on oath. He told the court that the deceased and he were having an extra-marital affair. On that day, he consumed a large amount of alcohol with his superior before he set off in from Kajang to meet the deceased at Bukit Kepayang, Seremban. They later went to Seremban 2 before heading to the deceased’s house.
 The deceased screamed at the Appellant for drinking but the Appellant reminded the deceased that she permitted it in the first place. The Appellant later asked to borrow some money that the deceased had earlier promised to give it to him.
 The deceased went berserk and started to verbally abuse the Appellant’s 6 month old daughter. She accused them of incest. The Appellant was angry but was able to control his temper. During the quarrel, the deceased thrown her handbag at the Appellant.
 The Appellant said that the deceased attacked him with something. He did not know what happen later as he was drunk.
The Appellant’s Appeal
Ground (a): There is no prima facie case of murder
 In the instant case, the prosecution has not claimed that the murder of the deceased was witnessed by anyone and no direct evidence regarding the same was adduced before the trial court. Admittedly, the whole case against the Appellant rests on circumstantial evidence. The law relating to circumstantial evidence is well settled. Circumstantial evidence can be the sole basis for a conviction provided that the conditions precedent before conviction on circumstantial evidence are fully established. The conditions are:
(a) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(b) The facts so established should be consistent with the hypothesis of the guilt of the accused;
(c) Circumstances should be of conclusive nature and tendency;
(d) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(See Magendran a/l Mohan v Public Prosecutor  6 MLJ1;  1 CLJ 805; Mazlan bin Othman v Pendakwa Raya  1 AMR 615; Dato’ Mohtar Hashim @ Anor v P.P  2 CLJ 10; Chan Chwen Kong v P.P  1 LNS 22).
 In Joseph v State of Kerala  5 SCC 197, the court has explained under what circumstances conviction can be based purely on circumstantial evidence. It is observed, that –
“… it is often said that though witness may lie, circumstances will not, but at the same time it must cautiously be scrutinised to see that the incriminating
circumstances are such to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilty of the accused.”.
 It is clear from the case cited above that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by decided cases.
 Keeping in view the relevant principles governing a case based on circumstantial evidence, we propose to consider whether the case against the Appellant is proved. In the instant case, having carefully examined the evidence, we are in agreement with the learned trial judge that there are sufficient circumstantial evidence that proved the nexus between the Appellant and the deceased’s death. The evidence may be summarised as follows:
(a) SP7 saw the Appellant standing outside her room, holding the deceased’s handbag and an axe;
(b) The Appellant threw the axe on sofa;
(c) The Appellant called SP4 repeatedly asking for help.
(d) The Appellant’s confession to SP4 that he attacked the deceased;
(e) The deceased’s handbag, jewellery, bank book and other personal belongings were found on the Appellant
(f) A cigarette bud was found at the scene by the forensic team. The DNA profile found on the cigarette bud matched the Appellant.
 Intention or mens rea is not something capable of being established by direct evidence; it is a matter of inference. It could be gathered from all the facts and circumstances prevailing in the case. [See Sainal Abidin bin Mading v PP  4 MLJ 497, Tham Kai Yau & Ors v PP  1 MLJ 174]
 In this regard, the Appellant’s intention may be gathered from the nature of the injuries and the weapon used. In the instant case, we found that the prosecution had established via the evidence by the pathologist (SP6) that:
(a) the cause of death is severe head injury caused by blunt trauma;
(b) the deceased suffered severe head injury and there was subarachnoid haemorrhage. The brain could be seen protruding out of the wound;
(c) the deceased’s head was hit repeatedly;
(d) the injury would have been caused by violent blows; and
(e) the chances of survival to a human who sustained this kind of injury are very slim; and
(f) a weapon like an axe could cause such injury.
 In view of the nature of the medical evidence given by SP6, and the used of dangerous weapon, we are of the considered view that the present case would fall squarely within limb (a) of section 300 of the Penal Code. In absence of anything else, the Appellant who had inflicted these blows must have intended to kill the deceased. We are in agreement with the learned trial judge that the Appellant intended the death of the deceased. We have no reason to disturb His Lordship’s finding.
Ground (b): Absence of fingerprint and/or DNA evidence
 Learned counsel submitted that the prosecution should be faulted when the investigation officer or the forensic officer did not lift the finger prints or trace the DNA profile on the axe (exhibit P13).
 With respect, we are unable to agree with the contention. In a case where the identity of the culprit is in question, fingerprint and/or DNA evidence would be of great significance. [See Pendakwa Raya v Mansor bin Mohd Rashid & Anor  3 MLJ 560, PP v Badrulsham bin Baharom  2 MLJ 535]
 In the present case, however, the identity of Appellant as perpetrator of the crime was not in doubt. Furthermore, the Appellant was seen carrying the axe before throwing it at the sofa. SP8 and SP10 also confirmed that the axe was found on the sofa.
 We could not find fault with his Lordship’s finding on this ground.
Ground (c): The confession made to SP4 is inadmissible
 The Appellant’s statement to SP4 that he attacked the deceased is an important piece of evidence in this case. After having decided that the Appellant made the statement voluntarily, the learned trial judge admitted that statement as a confession under section 17(2) of the Evidence Act 1950.
 In our view, the learned trial judge rightly admitted the Appellant’s statement as a confession. The statement, taken as a
whole without reference to extrinsic facts, suggest the inference that the Appellant committed the offence. (See Ho Sek Kong v P.P  6 CLJ 522).
 The rule of prudence requires that there should be independent corroboration before there can be a conviction based on a confession [See Hasibullah bin Mohd Ghazali v PP  3 MLJ 321, Juraimi bin Husin v PP  1 MLJ 537]
 The Appellant was seen carrying the deceased’s handbag and an axe. The deceased personal belongings were found on the Appellant. He called SP4 almost 20 times asking SP4 to send him to Seremban 2. We take the facts and circumstances highlighted earlier as having the cumulative effect of bringing the irresistible inference that the accused had committed the murder.
 In R v Sang  2 All ER 1222, the House of Lords held that a court has the power to exclude a confession if it is satisfied that its prejudicial effect outweights its probative value. It has also been held that the party that is seeking to have the evidence excluded must show, on the balance of probabilities that the discretion should be exercised in its favour. [See Francis Anthonysamy v. PP  3 MLJ 389].
 We are not impress with the contention of learned counsel for the Appellant that the prejudicial effect of the statement/confession outweights its probative value. The learned judge has made a positive finding of fact that the Appellant made the statement/confession voluntarily. It cannot be otherwise because the statement/confession was given by the Appellant to his friend, SP4. Learned counsel for the Appellant has failed to establish that the confession was involuntarily given. It is trite that findings of trial courts which are factual in nature and which involve credibility of witnesses are accorded respect where no glaring errors, gross misapprehension of fats and speculative, arbitrary and unsupported conclusions can be gathered from such findings. Moreover, as we have demonstrated earlier, there is ample evidence in the record to prove the guilt of the Appellant independently of his confession.
Ground (d): Failure of the trial judge to appreciate the defence of intoxication and/or grave and sudden provocation
 The defence of intoxication is spelt out in sections 85 and 86 of the as follows:
“85 (1) Save as provided in this section and in
section 86, intoxication shall not constitute a defence to any criminal charge.
(2) Intoxication shall be a defence to any
criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and —
(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.
86 (1) Where the defence under subsection 85(2)
is established, then in a case falling under paragraph (a) thereof the accused person shall be acquitted, and in a case falling under paragraph (b), section 84 of this Code and sections 347 and 348 of the Criminal Procedure Code shall apply.
(2) Intoxication shall be taken into account for the purpose of determining whether the person charged formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.
(3) For the purpose of this section and section 85 intoxication shall be deemed to include a state produced by narcotics or drugs. ”.
 In the instant case, the evidence showed that:
(a) the Appellant had consumed a large quantity of alcohol; and
(b) The presence of a strong smell of alcohol.
 We are of the opinion that in the circumstances of the case, the Appellant’s defence of intoxication falls under section 86(2) of the Penal Code. For the defence to succeed under that section, the Appellant must be in such complete and absolute state of intoxication as to make him incapable of forming the intention as charged. [See Abdul Aziz bin Mohamed Shariff v PP  6 MLJ 759, Francis Anthonysamy (supra)].
 The learned counsel for the Appellant attacked the prosecution’s case for failure to subject the Appellant to a toxicology test. We accept that scientific evidence to prove intoxication can be provided by an analysis of blood and urine samples which will show the level of alcohol in the body. However, the blood alcohol level itself can never be conclusive to determine the degree of intoxication of a person. Different people react differently to the same alcohol. [See Chan Kwee Fong v PP  3 CLJ 671, Francis Anthonysamy (supraj]. Therefore, in our view, the failure to subject the Appellant to a toxicology test is not fatal to the prosecution’s case. What is important is that the Appellant must convince the court that he was so drunk that he was incapable of forming the intention.
 The learned trial judge considered the Appellant’s conduct immediately prior to and after the commission of the offence. Prior to the commission of the offence, the Appellant rode from Kajang to Bukit Kepayang, then to Seremban 2 and finally back to the deceased’s house at Mambau without getting involved in an accident. There was some distance between these locations. To avoid getting injured or an accident, the Appellant must be mentally alert. Further, he also remembered that the deceased had promised to lend him some money. It would be a fallacy that such mental state of mind would suddenly disappeared when he attacked the deceased.
 After the commission of the offence, the Appellant took the deceased’s handbag, attacked SP7 and called SP4 for help. Obviously, he had intended to escape. This could not have been conceived if he was intoxicated.
 Under such circumstances, it is our considered view that the trial judge was not wrong when his Lordship rejected the defence of intoxication.
 The learned trial judge also considered and rejected the defence of provocation under exception 1 to section 300 of the
Penal Code. In discussing the test of grave and sudden provocation, the Supreme Court in Lorensus Tukan v Public Prosecutor  1 MLJ 251 stated that:
“It is for the court to decide in each case having regard to all the relevant circumstances. In order to succeed, the provocation must (a) be grave and sudden; and (b) have by its gravity and suddenness deprived the accused of the power of self-control. ”
 According to the Appellant, the deceased was screaming at him repeatedly for his drinking habit. The deceased had uttered vulgar words insulting the Appellant’s daughter. The Appellant told the court that he was angry but was able to keep his cool. Therefore, the deceased verbal attack cannot amount to a grave and sudden provocation to deprive the Appellant of self-control.
 For the reasons afore-stated, we found the appeal is bereft of merit. Based on the conspectus of the evidence, we cannot find any fault with the reasoning and conclusion of the learned trial judge. The case against the Appellant was proved beyond reasonable doubt. We have no hesitation to agree with the findings of the learned judge holding the Appellant guilty of offence under section
302 of the Penal Code and the sentence imposed. Accordingly, the appeal fails and it is dismissed. The conviction and sentence passed by the High Court are affirmed.
Dated: 8 April 2013
(DATO’ HAJI MOHD ZAWAWI BIN SALLEH) Judge
Court of Appeal Malaysia
Counsel for the Appellant: Nik Mohamed Ikhwan bin Nik Mahamud
Tetuan Nik Ikhwan & Co.
Counsel for the Respondent: Diar Isda Yazmin Ismail
Timbalan Pendakwa Raya Jabatan Peguam Negara Bahagian Perbicaraan dan Rayuan 62100 Putrajaya