IN THE COURT OF APPEAL OF MALAYSIA (CRIMINAL JURISDICTION)
CRIMINAL APPEAL NO: P-05-244-10-2013 BETWEEN
MOHD AZAM RAJA ABDULLAH .. APPELLANT
PUBLIC PROSECUTOR .. RESPONDENT
(High Court at Penang Criminal Trial No: 45-4-2011)
PUBLIC PROSECUTOR V. MOHD AZAM RAJA ABDULLAH
CORAM: MOHTARUDIN BAKI, JCA ZAKARIA SAM, JCA ABDUL RAHMAN SEBLI, JCA
 The appellant was charged in the High Court at Penang with murder as specified in the following charge:
“Bahawa kamu pada 2 Mac 2010, di antara jam 5 pagi hingga 9 pagi, di dalam rumah kedai beralamat No. 34, Jalan Hurdwara, di dalam Timur laut, dalam Negeri Pulau Pinang, telah membunuh SOH LIAN THYE No KP: 340122-025072 dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan.”
 He claimed trial to the charge and at the close of the prosecution case the learned trial judge amended the charge to an offence under section 457 of the Penal Code as he found that the evidence was insufficient to establish a prima facie case of murder
but sufficient to establish a prima facie case of housebreaking with intent to commit an offence punishable with imprisonment. The appellant pleaded guilty to the amended charge and was sentenced to 14 years imprisonment and 16 strokes of the rotan.
 The Public Prosecutor appealed to the Court of Appeal against the decision. The appeal was allowed and it was ordered that the defence be called on the murder charge. The learned trial judge duly called for the defence and at the conclusion of the trial he found the appellant guilty as charged and sentenced him to death. This is the appellant’s appeal against the conviction and sentence.
 By allowing the prosecution’s appeal and ordering for the defence to be called, it is implicit that the Court of Appeal had found as a matter of law that a prima facie case of murder had been established against the appellant. Thus the only issue for the learned trial judge to consider was whether the appellant’s explanation if any had cast a reasonable doubt in the prosecution’s case as to his guilt.
 When his defence was called the appellant elected to give evidence on oath. He did not deny causing the deceased’s death but avoided culpability by saying that he had no intention to cause death. His explanation was that on 2.3.2010 at about 5.00 a.m. he broke into the deceased’s shop with the intention of committing theft. He said he was not armed with any weapon and had entered the shop through the back door. Once inside the shop he took some money from the drawer and 3 bracelets later confirmed to be belonging to the deceased’s daughter.
 As the he was helping himself to the money in the drawer, he was startled by the sudden appearance of the deceased who immediately raised the alarm by screaming. Fearing that her scream might attract public attention, the appellant grabbed a piece of wood which he said happened to be lying nearby and used it to hit the deceased once in the head and pushed her down. It must have been a violent hit as it resulted in the death of the 76 year old deceased. The evidence of the pathologist Dato’ Dr. Bhupinder Singh (SP14) is that the deceased’s death was due to “severe head injury due to blunt trauma to the head.”
 Before he fled the appellant put the stolen properties inside a plastic bag. But as he was trying to get out of the shop the deceased’s husband (SP11) saw him and he shouted for help. Thus began what proved to be the appellant’s failed attempt to escape. First he climbed the ceiling of the shop and then broke the asbestos roof. He managed to get out through the broken roof and started to run on the rooftop. However as fate would have it he fell to the ground and was caught by members of the public who then assaulted him. He said they broke both his legs (“kaki saya dipatahkan oleh orang ramai”) before handing him over to the police.
 The prosecution’s version of the escape is slightly different but not inconsistent with the appellant’s evidence that he made his escape through the roof. Witness Ee Hock Hin (SP13) described it as follows:
“Then I heard some cracking noise coming from the deceased’s house. I realized that the thief was attempting to break the roof tiles. At this juncture, I ran upstairs to my front room to get a clearer view. I still heard some more cracking noise. Then I saw a man attempting to come out from the roof tiles which were cracked. The man managed to stick his head out from the hole and his two hands resting on the roof tiles. Within a few seconds, the tiles gave way due to his weight and he fell down again…”
 SP13 estimated the time to be around 7.15 in the morning just after he came back from the market. It is obvious that the appellant had been trapped inside the shop and had nowhere to escape except through the roof. As for the weapon used the appellant’s evidence is that it was a piece of wood measuring about 2 feet long and 2 inch x 1 inch in size (“lebih kurang 2 kaki dan sebesar lebih kurang 2 inci x 1 inci’). This corresponds with the wood marked exhibit P19A which was seized at the scene of crime. The photo of the wood can be seen at photo F of exhibit P5 at page 145 volume II of the record of appeal. According to the pathologist this wood could cause the injuries found on the deceased’s head.
 Having considered the appellant’s explanation carefully the learned trial judge found that his explanation failed to cast any reasonable doubt in the prosecution case and that the prosecution had proved its case beyond reasonable doubt. He rejected the appellant’s claim that he had no intention to murder the deceased.
 It was submitted in the court below and repeated before us that the intention to cause death cannot not be attributed to the appellant as there was a total lack of motive, premeditated plan or history of feud between the appellant and the deceased. It was
argued that the appellant only struck the deceased once and that too because he wanted to stop the deceased from screaming. In other words his intention was only to silence the deceased, not to cause death.
 With due respect to the learned counsel, the appellant’s intention is to be inferred from his outward acts and omissions and not by his excuses for causing the deceased’s death unless he was relying on any of the general exceptions under Chapter IV of the Penal Code which he was not. Even if the appellant had wanted to rely on any of the general exceptions he could not as the exceptions do not apply to a thief who intentionally causes death to his victim. It will be a strange working of the law if the exceptions do apply in such situation.
 The evidence of the pathologist is that the head injury was fatal and sufficient in the ordinary course of nature to cause death. According to him the chances of survival was minimal due to intraventricular haemorrhage and also due to swelling of the brain. This is crucial evidence and it was not challenged at all in cross examination and no reason was given as to why this was not done. The effect in law of such failure is that the evidence is deemed to be accepted: Wong Swee Chin v PP  1 LNS 138;  1 MLJ 212.
 Thus, even assuming for a moment that there was no intention to cause death as contended by counsel, the appellant’s act of intentionally causing the head injury would still be murder under
clause (c) of section 300 of the Penal Code which stipulates as follows:
“300. Except in the cases hereinafter excepted, culpable homicide is murder –
(c) if it is done with the intention of causing bodily injury to any person,
and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death;”
 To prove murder under this clause the prosecution is only required to establish two factual elements, namely:
(1) The bodily injury was intended.
(2) The bodily injury was sufficient in the ordinary course of nature to cause death.
 By the appellant’s own admission the injury to the deceased’s head was inflicted intentionally. It was not his defence that he had hit the deceased’s head by accident. Even if he had hit her by accident it would not avail him of the statutory defence under section 80 of the Penal Code as he was not doing a lawful act in the first place. As the injury was sufficient in the ordinary course of nature to cause death, the appellant would be caught by clause (c) of section 300.
 Intention to cause death is irrelevant where the act falls under this clause. What is relevant is the intention to inflict the particular injury that caused death. In Tan Joo Cheng v PP  1 SLR 620 the Supreme Court of Singapore held that where the act falls under
section 300 clause (c) of the Singapore Penal Code which is in pari materia with our corresponding provision, it would still be murder even if the intention was to inflict only a relatively minor injury.
 Whether the injury is sufficient in the ordinary course of nature to cause death within the meaning of clause (c) of section 300 is a question of fact for the court to decide. Since however this is a matter that is in the realm of forensic medicine, expert medical evidence is necessary to assist the court in coming to a finding.
 The appellant’s claim that he struck the deceased only once cannot be true having regard to the unchallenged evidence of the pathologist whose testimony is that more than one injury was found on the deceased’s head. Even if some of the injuries could have resulted from a fall after the deceased was pushed by the appellant, the fatal head injury could only have been caused by the appellant. That is the only reasonable inference that will account for all the known facts, barring fanciful possibilities.
 For reasons aforesaid, we found that the learned judge was not wrong in finding the appellant guilty of the offence charged. Consequently we dismissed his appeal against conviction and affirmed the death sentence passed by the learned trial judge.
ABDUL RAHMAN SEBLI, JCA
Dated: 7 January 2015
For the Appellant: Rao Jayaanda of Messrs Rao & Kamal.
For the Respondent: Nadia Haim Bt Tajuddin, DPP of the
Attorney General’s Chambers.