IN THE COURT OF APPEAL OF MALAYSIA HOLDEN AT KUCHING (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: Q-05(SH)-65-02/2016
HII TIONG HSIA … 1st APPELLANT
MUHAMAD SAUFI BIN ISMAIL … 2nd APPELLANT
[In the Matter of Criminal Trial No: 45-1/1-2012(MR) In The High Court of Sabah And Sarawak at Miri
Public Prosecutor And
1. Masirwan Bin Ariffin
2. Mohamad Khairul Ariffin Bin Yunus
3. Hii Tiong Hsia
4. Mohd Ramzhi Bin Mohamad
5. Muhammad Akmal Bin Aminudin
6. Muhamad Saufi Bin Ismail]
ROHANA BINTI YUSUF, JCA IDRUS BIN HARUN, JCA MARY LIM THIAM SUAN, JCA
JUDGMENT OF THE COURT
 We may mention, as a starting point in this judgment, that at the commencement of the appeal, learned counsel for the appellants informed us that the first appellant namely the third accused in the trial of the first instance, was withdrawing his appeal to which the learned Deputy Public Prosecutor had informed us that the prosecution had no objection. We allowed the application and accordingly struck out the first appellant’s appeal. In the course of this judgment, the second appellant will be referred to as the appellant whereas the first appellant will be referred to as the third accused. The appellant in this particular case, as the sixth accused in the court below, was initially charged jointly with the first to fifth accused under section 302 of the Penal Code read together with section 34 of the same Code. At the close of case for the prosecution, the learned Judge found that the prosecution failed to make out a prima facie case against the first, second, fourth and fifth accused. They were consequently acquitted and discharged from the charge against them. The prosecution did not appeal against the said order of acquittal and discharge.
 With respect to the prosecution’s case against the appellant and the third accused, although the learned Judge found that the prosecution failed to establish a prima facie case against them under the charge for murder, His Lordship, after subjecting the prosecution’s evidence to a maximum evaluation, was satisfied that the prosecution had made out a prima facie case against both of them for an offence of culpable homicide under section 304(a) read together with section 34 of the Penal Code.
 Accordingly, the learned Judge amended the charge against the appellant and the third accused from the offence under section 302 of the Penal Code to an offence under section 304(a) of the same Code. The charge under the said section is to be read together with section 34 of the Penal Code. The prosecution appealed to this Court against the decision to reduce and amend the charge but was dismissed. The appeal to the Federal Court was also dismissed.
 The amended charge reads —
“That you jointly on 11.5.2011 at about 10.30 p.m. in front of Lot 3148,
Desa Indah 3, Bandar Baru Permyjaya, in the District of Miri, Sarawak, committed culpable homicide not amounting to murder with the intention of causing such bodily injury as is likely to cause death to Mohammad Sofri Bin Osman and thereby you had jointly committed an offence punishable under section 304(a) of the Penal Code read together with section 34 of the Penal Code.”
At the end of the defence, the learned Judge found the appellant and the third accused guilty and sentenced them each to 20 years and 15 years of imprisonment respectively both commencing from their date of arrest. The
appellant and the third accused appealed against both their convictions and sentences to this Court.
 The facts of this case are well set out in the written judgment of the learned Judge. Before we go more closely into this appeal, it would be desirable to state briefly the facts relevant to the issues raised in this appeal. PW16 was the only eyewitness at the scene of crime who gave an eyewitness accounts of the fighting between the deceased and the appellant and 5 other accused persons at the material time. PW16 testified that on the night of 11.5.2011 he had attended a “kenduri”. After he arrived home his wife asked him to buy milk and pampers for their three-week old baby. At about 9.00 p.m. whilst he was upstairs playing with his son, his wife told him that his friend by the nickname of Po Chai had come to the house to see him. He said Po Chai’s real name was Mohammad Sofri bin Osman (the deceased). PW16 then came down from the first floor of the house and met the deceased who was waiting for him. The deceased told him that he had a misunderstanding with Sofi (the appellant) a few days before. The deceased told PW16 that he wanted to ask the appellant to apologize and asked PW16 to send the deceased to the appellant’s house at Desa Indah, Permyjaya. PW16 asked the deceased why the deceased wanted to ask the appellant for an apology but the deceased did not explain to him the nature of their misunderstanding. He then told the deceased that if it was a small matter, there was no need to make it big. PW16 refused to send the deceased to the appellant’s house and instead he went upstairs to take some money to buy the milk and pampers. As events transpired, when PW16 went inside his car and started the engine, the deceased suddenly entered the
car and begged PW16 to send him to the appellant’s house. PW16 obliged albeit reluctantly.
 PW16 next testified that after they had arrived at the house of the appellant at around 10.00 p.m., the deceased got out of the car immediately to confront the appellant. He said the appellant was then smoking outside the gate of his house with some friends. PW16 referred to these friends as Ayong, Akmal, Jiji, Apen and Masirwan whom he identified as the third, fifth, fourth, second and first accused. He said when the deceased confronted the appellant, the appellant punched the deceased and the deceased fought with the appellant who fell down. The appellant’s friends then one by one, tried to help him fight with the deceased but all of them fell down after which all of them together attacked the deceased. According to PW16 the deceased was a silat exponent and that none of the accused could fight and defeat the deceased singly and that they could only do so if they fought together against the deceased.
 As he related the incident further, PW16 told the court that during the fighting he saw Apen (the second accused) bringing a weapon, but he was not sure whether it was a stick or an iron bar. The second accused hit the deceased with the weapon. PW16 thereupon told the deceased to run. The appellant was heard asking Ayong (the third accused) to take a kwantao (also known as parang) (Exhibit P40A). Upon seeing the third accused passing the kwantao to the appellant, PW16 once again told the deceased to run away. PW16 then saw the deceased running away towards him. It was at that stage that the appellant who was behind the deceased slashed the deceased’s leg with the kwantao. He pulled the deceased to his car and the deceased told him that his leg “mahu putus”. PW16 then brought the deceased to the hospital.
 Dr. Nantha Kumeran A/L Muthu Kerishnan (PW21) was at the material time on duty at the emergency ward at Miri Hospital. PW21 said that on 11.5.2011 at about 11.00 p.m. he received the deceased at the emergency ward. The deceased was not breathing, he was pale and there was no pulse. The deceased, PW21 testified, had sustained a deep wound on the left leg and was bleeding profusely. In view of the deceased’s condition, PW21 then intubated the patient, started cardiopulmonary resuscitation (CPR) on and gave intravenous adrenaline to the deceased. He said the pulse was palpable but the pupil was fixated, dilated and there was brain death. Blood transfusion was therefore given to artificially maintain the blood pressure of the patient, however the patient died on 12.5.2011 at approximately 7.48 a.m. from his injuries. Meanwhile, PW9 to whom the deceased was referred from the emergency ward subsequently told the court that the lacerated wound was at the back left knee of the deceased’s left leg.
 Dr. Siew Sheue Feng (PW14) performed an autopsy on the deceased on 13.5.2011 at 11.20 a.m. at the mortuary at Miri Hospital. The deceased was identified by his father Osman Bin Ibrahim (PW1) at the mortuary. PW14 had prepared a post mortem report which was tendered and marked as Exhibit P92. According to PW14, the deceased sustained multiple blunt injuries mainly on the head and face and a deep incised wound over the left popliteal fossa, cutting the left popliteal vessels and nerve. The cause of death, PW14 testified, was due to the incised wound to the lower limb of the deceased. He testified that the incised wound had cut the left popliteal blood vessels and nerve which resulted in massive bleeding.
OUR DELIBERATION AND DECISION
 It is necessary to observe at this point that as the decision of the learned Judge that a prima facie case against the appellant for the offence under section 304(a) of the Penal Code had been made out against the appellant and that consequently the charge under section 302 of the said Code had been reduced and amended to the charge under section 304(a) thereof and such decision had been affirmed by both this Court and the Federal Court, it necessarily follows that our judgment will be confined solely to the conviction and sentence by the learned Judge at the end of the case for the defence.
 The grounds of appeal as specified in the Petition of Appeal so far as it relates to the conviction of the appellant, in essence, are that the appellant did not have or possess any intention or mens rea to cause the death of the deceased, that he acted in self-defence when he was attacked continuously by the deceased, the injuries suffered by the deceased was not likely to cause the death of the deceased and the learned Judge failed to consider that the appellant reacted the way he did in the face of certain degree of deliberate provocation from the deceased.
 It might be apposite to be reminded of the obvious, that it is indeed a fundamental and undisputed tenet of the rule of law that in a criminal trial the prosecution bears the general burden of proving the guilt of an accused person beyond reasonable doubt. It would therefore be incumbent upon the court to consider pursuant to section 182A of the Criminal Procedure Code all the evidence adduced before it at the conclusion of the trial and shall decide whether the prosecution has proved its case beyond reasonable doubt. If it does, the court shall find the
accused guilty and he may be convicted on it. On the contrary, if the court finds that the accused’s evidence has cast a reasonable doubt on the prosecution’s case, the natural consequence would be that an order of acquittal shall be recorded.
 The offence of culpable homicide is defined in section 299, and so far as it concerns the appellant, it is punishable under section 304(a) of the Penal Code. We shall deal, as a necessary preliminary, with the requisite elements of the offence in respect of which the prosecution is required to prove in order to secure the conviction of the appellant under section 299 read with section 304(a) of the Penal Code, and to the extent that it applies to the amended charge against the appellant, these are —
(a) the deceased was dead; and
(b) the death was caused by the appellant’s act —
(i) with the intention of causing the death of the deceased; or
(ii) with the intention of causing such bodily injury as was likely to cause the deceased’s death.
 It is perhaps necessary to also mention that the essential elements of an offence under section 299 of the Penal Code punishable under section 304(b) thereof, which is incumbent upon the prosecution to prove, is that, the bodily injury is inflicted by an accused person with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. Thus, the manifest difference between an offence under section 304(a) and the one under section 304(b) lies in the fact that the element of intention is
necessary in order to prove the offence under section 304(a) whereas knowledge is the only requisite element to be proved for the offence under section 304(b) of the Penal Code.
 The arguments before this Court were broadly directed on the issues raised in the grounds of appeal as summarized earlier. A main plank in counsel’s submission was that, in his view, the appellant’s conviction was unsafe and could not be sustained as the prosecution had failed to prove beyond reasonable doubt the element of intention or mens rea to cause the deceased’s death and the prosecution had not led sufficient evidence to prove that, to quote learned counsel’s written submission, “the injuries inflicted upon the deceased were sufficient in the ordinary course of nature to cause death.”
 It would seem that the defence case was premised on the argument that the prosecution had to prove that the injuries inflicted upon the deceased were sufficient in the ordinary course of nature to cause his death. It ought to be highlighted that, with respect, that argument was clearly fallacious. Under sections 299 and 304 (a) of the Penal Code, the correct question to be determined would be whether the prosecution had successfully proved that the appellant had caused the death of the deceased by intentionally inflicting the injury in question as was likely to cause his death. This is the requisite element which the prosecution is required to prove under the law.
 The irrefragable fact is that the deceased succumbed to the injury on 12.5.2011 circa 7.48 a.m. and the death was due to the incised wound to the left lower limb of the deceased. The incised wound, according to PW14 had cut the left popliteal artery and left tibia nerve resulting in
massive bleeding. The injury was caused by a sharp object or instrument (see also Exhibit P92, the Postmortem Report). Based on this evidence, we are satisfied that the essential elements of the offence viz, the deceased died and the death was due to the bodily injury that is the incised wound had been proved conclusively by the prosecution.
 The learned Judge found that the appellant and the third accused by using the kwantao to slash the deceased had intentionally caused such bodily injury as was likely to cause the deceased’s death. In other words, the learned Judge was satisfied that the evidence led by the prosecution revealed that there was no intention on the part of the appellant to cause the injury in question with the intention to cause death. We agree with the finding of the learned Judge and accordingly upon the said finding there was certainly no necessity on our part to delve into the element of intention to cause death. The crucial question to be determined therefore was precisely whether the prosecution had proved that the deceased’s injury was inflicted by the appellant and he had done so with the intention of causing such bodily injury as was likely to cause the deceased’s death. This is indeed another essential element of the offence under section 304(a) of the Penal Code which the prosecution is required to prove.
 It was in the evidence that PW16 saw the appellant asking the third accused to take the kwantao (Exhibit P40A) and that the third accused passed the kwantao to the appellant which the appellant used to slash the deceased’s leg. This is the direct evidence of the eyewitness. The appellant in his defence admitted that he slashed the deceased on the leg but he did so to stop the deceased from continuing to attack him. Without doubt, the learned Judge was correct when His Lordship found that it was the appellant who slashed the deceased on his left leg.
 The learned Judge in his judgment on this issue found as follows:
“59. When the 6th Accused asked the 3rd Accused to take the kwantao and to hand the kwantao to the 6th Accused, it was clear that the 6th Accused intended to use the kwantao to inflict an injury on the deceased.
As soon as the 6th Accused asked the 3rd Accused to take the kwantao and the 3rd Accused had taken the kwantao from the house and handed the kwantao to the 6th Accused, both of them had formed a common intention to use the kwantao in the fight with the deceased. At the material time the 3rd Accused did not object or refused to take the kwantao from the house. He knew where it was kept. He did not object or refused to hand the kwantao the 6th to the 6th Accused. He knew the 6th Accused intended to use the kwantao in the fight with the deceased.
There was a meeting of minds between the 6th Accused and the 3rd Accused to use the kwantao to inflict an injury on the deceased.”
It is manifest from the above findings that the appellant had the intention to cause the injury in question to the deceased. In our view, the initial act on the part of the appellant that had indicated the clear sign of intention to cause the said injury on the deceased could be imputed from the usage of the kwantao by the appellant. It was the evidence of PW16 that when Po Chai (the deceased) wanted to run away, the appellant asked the third accused to get the kwantao. After the third accused passed the kwantao to the appellant, and as the deceased was running away towards PW16, he saw the appellant slash the deceased’s leg. The nature of the incised wound sustained by the deceased is also relevant evidence to consider mens rea. According to PW14, the forensic medical specialist, the incised wound measured 15.3 x 6.2 cm. This was a deep wound and the whole main artery was cut. The popliteal blood vessel was a big and main artery according to PW21 who attended to the deceased when he was admitted to the emergency ward at Miri Hospital at about 11.00 p.m. on 11.5.2011
and the injury was a life threatening one. At that time, the deceased was technically and medically dead as he was not breathing and there was no pulse palpable. The wound according to the forensic medical specialist, PW14, would in the ordinary course of nature cause death without immediate surgical intervention. Based on the evidence of PW16 who gave the eyewitness accounts of the incident, PW14 and PW21, the act of the appellant in instructing the third accused to get the kwantao and then subsequently slashing the deceased’s leg clearly evinced by his conduct the intention on the part of the appellant to cause the injury to the deceased as was likely to cause his death. Accordingly, there was not a scintilla of doubt in our minds that the prosecution had successfully proven mens rea or intention of the appellant to inflict the injury in question on the deceased and this, we hold without any moment of hesitation, had been proven beyond reasonable doubt by the prosecution.
 One of the grounds of appeal that had been ventilated before this Court was that the learned Judge erred in law and in fact when His Lordship accepted the evidence of PW16 over the evidence of the appellant and DW2 when the benefit of the doubt should have been given to the appellant. PW16 in our opinion is a credible witness. Although there were two separate police reports lodged by PW16 (Exhibits P93 and P94) over the incident that he witnessed, the learned Judge accepted his explanation over the discrepancies between the two reports. PW16 had earlier made the police report (Exhibit P93) on 11.5.2011 regarding the incident in which he stated that at about 10.30 p.m. he passed a “lorong” behind a Shell petrol station at Permyjaya where he saw a group of persons were assaulting a person. He sounded his car horn to alert the public. As a result this group of persons ran away. He recognised the person who was assaulted as the deceased and he took the deceased to
hospital. However, subsequently on 20.5.2011, PW16 lodged a second police report (Exhibit P94) to correct what he had said in the earlier police report. In the second report PW16 explained that when he made the first report he felt scared and his life had been threatened. In his evidence, PW16 explained that he was afraid to report what he had seen that night. He was afraid that the accused persons would look for him, adding that some of the accused persons and some of their family members had gone to his house that night. They rattled the gate of his house and shouted his name. PW16 testified that he explained to them that he had only sent the deceased to the hospital and that he was not involved in any quarrel with them. A few days later, the first, second, third, fourth and fifth accused were arrested whilst the sixth accused had absconded but was subsequently arrested in Shah Alam in July 2011. He then decided to make the second police report to correct his earlier report in order to testify as to the truth of what he had seen that night in front of the house at Lot 3148, Desa Indah 3, Permyjaya, Miri.
 The learned Judge made a finding on this issue as follows:
“ PW16 had explained why he had made the police report P93 which was incorrect or not true at that material time and why he decided to make the second report to correct the earlier report after the five accused persons had been arrested and the 6th Accused had absconded.
The explanation given by PW16 was rational and reasonable in the circumstances of the case. He was scared and had been threatened.
The evidence showed that subsequently the 1st and 2nd Accused were arrested on 12.5.2011, the 3rd and 4th Accused were arrested on 13.5.2011 and the 5th Accused was arrested on 16.5.2011. The evidence showed that after the fight on 11.5.2011 between the accused persons and the deceased, the 6th Accused had absconded and was subsequently arrested in Shah Alam in July 2011 and brought back to
Miri. His explanation was probable and I accepted his explanation on the two reports in P93 and P94.”
 PW16 had given his explanation which the learned Judge found to be reasonable and probable. Although there was a slight difference with the content of Exhibits P93 and P94, PW16’s explanation was accepted by the learned Judge. We see no valid justification to reverse such factual finding made by the learned Judge. In any event, a police report is not in itself a ground to question the credibility of PW16. He had in fact in his testimony during the trial explained the reasons for making the earlier report. Reference in this connection may be made to the decision in the case of Tan Cheng Kooi & Anor v Public Prosecutor  2 MLJ 115 in which the court had this to say —
“Now the importance of a first information report has been stressed in a number of decisions. It is not a substantive piece of evidence and it is inadmissible for the purpose of proving that the facts stated in it are correct. But it can be used by way of corroboration or contradiction: per Carnduff J. in 17 C.W.N 1213:
“The first information is a document of great importance and in practice it is always and very rightly produced and proved in criminal trials. But it is not a piece of substantive evidence and it can be used only as a previous statement admissible to corroborate or contradict the author of it”. as cited in Shohoni’s Code of Criminal Procedure (14th Edn.) at page 275.”
 The learned Judge in rejecting the evidence of the appellant and DW2 did carry out proper and full judicial appreciation of the evidence. In the first place at (paragraph 94 of the judgment) the learned Judge found that the evidence of the appellant and DW2 was different from the
testimony of PW16. In paragraph 95 of the judgment the learned Judge correctly found that all these assertions as enumerated in paragraph 94 were never put to PW16 and thus he was completely not cross-examined thereon. The failure to put the defence version to the material witness such as PW16 goes to and would inevitably raise doubts on the credibility of the appellant and DW2 and indeed amounts to an acceptance of the prosecution’s witness testimony [see Wong Swee Chin v Public Prosecutor  1 MLJ 212].
 Notwithstanding this finding, the learned Judge proceeded to evaluate the appellant’s and DW2’s evidence. Upon considering the evidence in its entirety, their evidence appeared to us in truth to be unacceptable and as such must be rejected. The facts we glean from the evidence of PW16 clearly show that it was the appellant who punched the deceased first before they started to fight each other. When the appellant fell down, the other accused persons tried to help the appellant by attacking the deceased. The appellant told the third accused to get the kwantao when the deceased wanted to run away. After the third accused passed the kwantao to the appellant and when the deceased was running away, the appellant was behind the deceased. It was at that stage that PW16 saw the appellant slash the deceased’s leg. This evidence went completely unchallenged. The evidence of PW9, to whom the deceased was subsequently referred from the emergency ward, PW9’s evidence was that the lacerated wound was at the back left knee of the deceased’s left leg and photograph 13 of Exhibit P6 which confirmed PW9’s testimony lend credence to the evidence of PW16 and convinced us that the appellant slashed the deceased left leg from behind as he was running away. Under the circumstances, the defence evidence that the deceased was face to face with the appellant and that the deceased was trying to
snatch the kwantao from the appellant when he slashed the deceased could not be accepted. We do not find any error when the learned Judge rejected the evidence of the appellant and DW2. The learned Judge had sufficiently analysed and evaluated the evidence of the appellant and DW2 in coming to the conclusion that the case against the appellant had been proven beyond reasonable doubt.
 We now turn to consider the next point that had been pressed on us in this Court. Learned counsel submitted that the appellant was in fact acting in self-defence when he was attacked continuously by the deceased who was the attacker, assailant or intruder and that there was a certain degree of provocation by physical conduct of the deceased in attacking the appellant and others at the appellant’s house continuously and repeatedly. In a nutshell, the alleged continuous and relentless attack by the deceased, as we understand it, caused the appellant to slash the deceased which he did in self-defence and the alleged continuous attack by the deceased also amounted to a certain degree of provocation. That is, in essence, the defence case on this point.
 The learned Judge had made a finding on this issue in which at paragraph 101 of the judgment His Lordship said —
“On the evidence adduced, the 6th Accused had used excessive force to slash the leg of the deceased with the kwantao which resulted in the death of the deceased and there was no justification for him to do so. In doing so, it was not in self-defence. The 3rd Accused in taking the kwantao from the house and handed it to the 6th Accused who used it to slash the deceased was implicit in the offence. There was a meeting of minds between the 6th Accused and 3rd Accused at that point in time.”
We are fully convinced, after taking into consideration the totality of evidence, that the learned Judge did not err in law and on the facts in arriving at such a finding. The evidence showed that the deceased came to the house to confront the appellant unarmed. If it was true that the third accused and the others were inside the house compound, as alleged by the appellant, the appellant could have easily run inside the house compound and locked the gate. However, the appellant did not resort to that, he instead asked the third accused to take the kwantao which he then used to slash the deceased. The appellant’s act was witnessed by PW16. Even if the deceased was good in martial arts, the fact that he came alone to confront the appellant unarmed showed that the deceased had no intention to fight with the appellant. But then, it was unfortunate that the fight occurred during the confrontation and it was the evidence of PW16 that he saw the third accused coming out from the house with the kwantao and handing it over to the appellant. It is abundantly clear that the appellant had acted over board and excessively when he slashed the deceased’s leg.
 The provisions relating to right of private defence are found in Part IV of the Penal Code which deals with general exceptions. The relevant provisions are sections 96 to 106 of the Penal Code. Such right, in our opinion, is exercisable subject to and within the ambit and limit of these provisions. As a general rule, nothing is an offence which is done in the exercise of the right of private defence. This is provided in section 96 of the Penal Code. But, the exercise of such right is subject to the restrictions contained in section 99 and insofar as it concerns the appellant in this appeal, sub-section (4) thereof is relevant. It provides that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Under section 100, the
right of private defence of the body extends, to the extent that it concerns this appeal, to the voluntary causing death or any other harm to the assailant, if the offence which occasions the exercise of the right is an assault as may reasonably cause the apprehension that death or grievous hurt will otherwise be the consequence of such assault. However, if the offence is not of any of the descriptions enumerated in section 100, the right of private defence of the body only extends to the voluntary causing to the assailant of any harm other than death. This is stipulated in section 101. The law gives greater latitude to a person who is attacked when section 102 states that the right of private defence of the body commences as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and it continues as long as such apprehension of danger to the body continues.
 It is therefore clear in our law that to avail himself to the right of private defence, it would be incumbent on the appellant to show that the alleged assault by the deceased had caused reasonable apprehension that death, grievous hurt or otherwise other harm would be the consequence of such assault. The next pertinent question would be whether the appellant had inflicted more harm than was necessary for the purpose of exercising such right. The appellant’s defence was that the deceased continued to attack him and he stepped back but the deceased wanted to snatch the parang from him and he nearly fell down. Frightened for his life and that he had no choice, he slashed the deceased as he was an exponent of martial arts.
 The evidence of PW16 and that of the defence are diametrically opposed sets of facts which the learned Judge had carefully considered
of which we have already deliberated above and are in agreement with His Lordship’s sound reasoning. We need only say on this aspect of the defence that the deceased went to the house of the appellant alone and unarmed. The appellant was armed with the kwantao. If there was any reasonable apprehension of danger, such apprehension would have come from the deceased, who logically speaking, ought to be fearful of his life when the appellant was armed with a meter long kwantao and outnumbered by 6 persons, where apart from the kwantao, an iron or stick bar was also used. In any event, the deceased was running away from the appellant when he was slashed by the appellant from behind. PW16 in his evidence had told the deceased to run away because the deceased was attacked by the appellant and other accused persons. Thus, any apprehension of danger would have dissipated. In any event, there was absolutely no evidence led by the defence that the alleged apprehension of danger to the body continued after the deceased ran away. Further, there was absolutely no evidence that the deceased had inflicted serious injuries or intended to inflict any injury which was life-threatening or posed danger to the appellant’s life so that the appellant had to slash the deceased’s leg in self-defence. There was no evidence to show that there was reasonable apprehension of danger to the life of the appellant during the fight when the deceased was unarmed so that the appellant’s act would fall within the general exception under section 100 of the Penal Code that would not render his act an offence. We would refer to the case of Frans Hiu v PP & Another Appeal  9 CLJ 764 in which this Court held —
“ The right of private defence commences as soon as there is a reasonable apprehension of danger to the body of a person and that right continues for as long as the danger exits. (see PP v Ngoi Ming Sean  CLJ 93;  CLJ (Rep) 251;  1 MLJ 24, Ya Daud v PP
 2 CLJ 540;  4 MLJ 322, PP v Dato’ Balwant Singh (No.
2)  7 CLJ 285;  3 MLJ 395).
 Section 99 of the Penal Code provides a limitation to the right of private defence. If an accused person has time to have recourse to seek the protection of a public authority or inflicts more harm than necessary for the purpose of defending his person, he can not avail himself of the protection provided by the defence.”
 We agree with the learned Judge that there was no necessity for the appellant to slash the deceased’s leg with the kwantao which was sharp, dangerous and about one meter long bearing in mind that the deceased was unarmed. We would add that at that point of time the deceased was already running away towards PW16. The appellant had thus used excessive force to slash the deceased’s leg which resulted in his death, inflicting, we would say, more harm than it was necessary to inflict for the purpose of his so-called private defence. The right of private defence of the body by virtue of section 100(4) of the Penal Code, undoubtedly does not extend, in this particular case, to the appellant’s act of slashing the deceased’s left leg that had led to his death.
 On the issue of common intention under section 34 of the Penal Code, there was clear evidence that there was a meeting of minds between the appellant and the third accused which established that the criminal act of both of them was committed with common intention. The learned Judge in this regard found that the third accused in taking the kwantao from the house and handed it to the appellant who almost immediately thereafter slashed the deceased was implicit in the offence. The fact was inevitable that there was a meeting of minds between the appellant and the third accused at that point of time that showed the
existence of common intention to commit the crime and the crime was indeed committed in furtherance of common intention of both of them. The learned Judge was justified when he found that common intention was formed between the appellant and the third accused when the appellant asked the third accused to take the kwantao. It was apparent that the third accused did not object or refuse to take the kwantao and he knew where the kwantao was kept. The third accused knew that the appellant intended to use the kwantao in the fight with the deceased and the appellant, when he asked for the kwantao, had the intention to inflict an injury on the deceased. Although the plan was not hatched earlier, their acts on the spur of the moment and having considered the surrounding facts at the material time, was sufficient in law to impute common intention that the weapon would be used to cause injury to the deceased. The learned Judge found that the deceased’s DNA was detected on the kwantao that was used by the appellant to slash the deceased and Exhibit P24 showed the blood stains of the deceased on the third accused’s short trousers worn that night. Both the appellant and the third accused were therefore at the close proximity.
 We now turn to the argument urged for the appellant that the continuous and repeated attack by the deceased had manifested certain degree of provocation. We would start off by stating that in paragraph 90 of the judgment the learned Judge stated that the defence did not submit that there was grave and sudden provocation by the deceased which caused the appellant to be deprived of the power of self-control. The learned Judge also found that there was no such evidence of sudden and grave provocation proceeding from the deceased that had caused the appellant to act the way he did. Based on learned counsel’s submission, it is manifest that the defence contention on this point was premised on
the alleged continuous and repeated attacked by the deceased that had provoked the appellant to slash the deceased. Pausing here, it is plain that learned counsel did not specify which particular provisions of the Penal Code he was relying on in connection with this issue. Part IV of the Penal Code which deals with general exceptions does not contain provisions on provocation. If it does, an act which amounts to provocation if proven, as with other general exceptions under the said Part IV, would not constitute an offence. The only section in the Penal Code which contains provisions relating to provocation is section 300. This is a specific exception which provides in Exception 1 that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation. However, this specific exception only applies to the offence of murder so that where provocation is proved the offence is not murder instead it is culpable homicide not amounting to murder. Clearly, this specific exception only applies to the offence of murder not an offence under section 299 read with section 304 of the Penal Code. Thus, we are here dealing with the issue raised by the defence which we could not otherwise apprehend why it was so raised.
 Even if we are wrong, we agree with the learned Judge that there was no evidence of sudden and grave provocation. Whether it is sudden and grave is a question of fact. The deceased was attacked first by the appellant and when he retaliated the other accused joined in to attack the deceased. During the fight it was the appellant which asked for the kwantao from the third accused which he used to slash the deceased as he was running away towards PW16. The deceased as we have stated earlier was alone and unarmed. The evidence did not show that there was provocation proceeding from the deceased. In the event, we find this
argument unacceptable, devoid of any merits and consequently must be rejected.
 In the premises and for the reasons discussed, we find that the instant appeal under consideration in this case is wholly without basis. We agree with the learned Judge, that on the totality of the evidence adduced at the end of the trial, the testimony of both the appellant and DW2 was not credible or acceptable and did not raise any reasonable doubt as to the guilt of the appellant in respect of the charge under section 304(a) read together with section 34 of the Panel Code. There is overwhelming evidence which shows that the appellant committed the act by which the death was caused intentionally. Taking into account the nature of the bodily injury which was a deep incised wound which completely severed the big left popliteal artery, the appellant’s act was manifestly intentional and such injury was likely to cause death. We do not think that any lesser charge under section 304(b) of the Penal Code as learned counsel had quite clearly urged us to consider would merit our consideration. Accordingly, we are fully convinced that the case against the appellant had been proved beyond reasonable doubt on the charge of committing culpable homicide not amounting to murder under section 304(a) read with section 34 of the same Penal Code. The learned Judge, we should say, did not commit any error in finding that the defence had failed to raise a reasonable doubt on the prosecution’s case. Accordingly, we affirm the conviction by the learned Judge against the appellant.
 The learned Judge, having considered the plea in mitigation made on behalf of the appellant, a victim impact statement pursuant to section
182A of the Criminal Procedure Code and the submission by the learned DPP, sentenced the appellant to 20 years of imprisonment. In considering appropriate sentence, we are mindful that the primary goals of sentencing are punishment, deterrence, incapacitation and rehabilitation. Based on the totality of the evidence, it would be a relevant sentencing factor to consider the evidence that the deceased had confronted the appellant unarmed when the fight broke out between them and that the appellant instructed the third accused to take the kwantao during the fighting. The evidence of PW16 undisputedly showed that the deceased was alone and during the ensuing fight between him and the other accused persons, the appellant had used the kwantao to slash the deceased’s leg. There was no necessity for the appellant to use such weapon during the fight while it was clearly shown that the deceased was alone and the appellant was in a group of assailants. Further, by using the kwantao to slash the deceased’s and taking into consideration the nature of the injury, the appellant undoubtedly had the intention to cause serious injury on the deceased and it was clear that such injury was likely to cause death to the deceased. The learned Judge had taken into account the relevant sentencing factors in meting out the sentence. In particular the learned Judge took into account the element of public interest, the abhorrence in unlawfully taking the life of another person, the manner in which the offence was committed. His Lordship moreover, considered that the appellant could have easily run into the compound of his house and closed the gate instead of asking for the kwantao to slash the deceased. It was indeed a cruel act which was intended to incapacitate the deceased without justification resulting in the deceased’s death in the process. The gravity of the offence would therefore be a relevant aggravating factor in ascertaining a suitable punishment to be meted out. We do not find any
error in the learned Judge’s reasonings in imposing the punishment as he did and the sentence imposed is not manifestly excessive.
 For all these reasons, we are of the view that the appeal by the appellant should be dismissed. We affirm the conviction and sentence passed by the learned Judge.
( IDRUS BIN HARUN )
Court of Appeal, Malaysia Putrajaya
1. Counsel For The Appellants – Shikh Rajjish Ahmad bin Shikh Sjjad
(Firdaus Bin Morshidi with him)
Shad & Partners
2. Counsel For The Respondent – Muhammad Azmi bin Mashub
Jabatan Peguam Negara Putrajaya.