LNS - 2023 - 1 - 1166 - 302 - Trend Sentencing - Reduce

[2023] 1 LNS 1166 Legal Network Series
IN THE HIGH COURT IN MALAYA AT IPOH (3)

IN THE STATE OF PERAK DARUL RIDZUAN
[CRIMINAL TRIAL NO.: AA-45B-1-01/2019]
PUBLIC PROSECUTOR
v.
1. JAYA GANESH JAYABALAN (NRIC NO.: 981210-08-7097)
2. KARTIK KRISHNAN CHANDRAN (NRIC NO.: 990703-10-6553)
3. ARJUN ARUL ANANTHAN (NRIC NO.:970610-08-5003)
4. SATHIS CHANDRAN (NRIC NO.:970610-08-5143)
5. SIVABALAN VEERAN (NRIC NO.: 990607-08-9239)
GROUNDS OF JUDGMENT
Introduction
[1] The five accused were jointly charged with having the common
intention of the murder of Chung Thian Keong (“Chung” or “the
deceased”) at a time between on or about 7:00 p.m., 17 May 2018
and on or about 7:00 p.m., 18 May 2018 by a river nearby to
Kampung Baru Chenderong, Jalan Tanjung Tualang, Daerah Batu
Gajah, Perak Darul Ridzuan.
The original charge
[2] The charge in its original language reads as follows:
“Bahawa kamu bersama-sama diantara 17 Mei 2018 jam lebih kurang 7.00
petang hingga 18 Mei 2018 jam lebih kurang 7.00 pagi, di tepi sungai
berhampiran Kampung Baru Chenderong, Jalan Tanjung Tualang, dalam
Daerah Batu Gajah, Negeri Perak Darul Ridzuan, dalam mencapai niat
bersama telah membunuh Chung Thian Keong KP No. 640304-08-5329
dan oleh yang demikian, kamu telah melakukan satu kesalahan yang boleh
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dihukum di bawah seksyen 302 Kanun Keseksaan dan dibaca bersama

seksyen 34 Kanun yang sama.”
The Prosecution’s case
[3] The prosecution called 19 witnesses to prove its case. They were:
SP1 Kpl Yahya Bin Mohamed First Information Report’s
Receiver
SP2 D/Kpl Balwant Singh a/l Gurdit Photographer
Singh
SP3 ASP Suhaimi Bin Muhamad Arresting Officer
SP4 Siti Hajar Aisah Binti Mohd Chemist Officer
Khamsi (Toxicology)
SP5 Siti Hajar Binti Hussin Chemist Officer (DNA)
SP6 Maya Santi Chung’s sister in law
SP7 Chung Teen Fook Chung’s brother (who

identified Chung’s body)
SP8 Ho Kok Choi Chung’s neighbour
SP9 Chung Swee Kok Chung’s sister
SP10 Chung Sooi Khuan Chung’s sister

Specialist Forensic
SP11 Dr. Siti Zanariah Binti Md Naziri Pathologist
SP12 Insp Siti Rabiah Binti Kassim Forensics Officer at the

scene
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SP13 Insp Kenneth Lee Han Xheau Raiding Officer
[4] The prosecution relied primarily on the evidence of:
i) Dr. Siti Zanariah Binti Md Naziri (SP11), a specialist forensic

pathologist from the Hospital Raja Perempuan Zainab II, as to
the cause of death;
ii) Chew Poh Choon (SP15) who was the eyewitness to the alleged
beating of the deceased by the five accused;
iii) Ho Kok Choi (SP8) whom the deceased had allegedly told he
was beaten by five Indian individuals; and
iv) Maya Santi (SP6) who heard SP8 saying that the deceased was
beaten by 5 Indian individuals.
[5] The prosecution submitted that under section 300 Penal Code the
elements that the prosecution has to prove in a murder charge are:
i) death of the alleged victim;
ii) the death was caused by the action of the accused, and
iii) the action caused the death of the deceased with:
a) the intention of causing death, or
b) with the intention of causing bodily injury which, the

accused person knows to be likely to cause death, or
c) with the intention of causing bodily injury and the bodily

injury intended is sufficient in the ordinary course of
nature to cause death; or
d) with the knowledge the act is so imminently dangerous

that it must in all probability cause death or such bodily
injury is likely to cause death, the accused person has no
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excuse for incurring the risk of causing such death or

injury.
Identity and death of the deceased
[6] The following witnesses testified as follows:
i) SP6, Maya Santi, the sister-in-law of the deceased who stayed

with the deceased and found the deceased to be no longer
breathing at about 7:00 a.m. on 18 May 2018;
ii) SP7, Chung Teen Fook, the husband of SP6 and the brother of
the deceased. He identified the deceased from the photograph
of the deceased in P5 (8) and he was the one who claimed the
body of the deceased from the mortuary of the Forensic
Department of Hospital Raja Permaisuri Bainun, Ipoh.
iii) SP8, Ho Kok Choi, the neighbour of the deceased who had
used his finger to check the breath of the deceased on 18 May
2018 at about 7:00 a.m. and found that the deceased was no
longer breathing;
iv) SP10, Chung Sooi Khuan, one of the sisters of the deceased
who said that on the morning of 18 May 2018 she was
unsuccessful in trying to wake up the deceased despite calling
his name and found that he was no longer breathing; and
v) SP11, Dr. Siti Zanariah Binti Md Naziri, a forensic pathologist

who carried out the post-mortem examination of the deceased.
[7] From the aforesaid testimonies, the identity and death of the
deceased, Chung Thian Keong, had been proven beyond any
reasonable doubt. This was also conceded by the defence (Enclosure
307 p 5 para 1).
Cause of death
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[8] SP11, whose credentials and experience as a forensic pathologist

were unchallenged, carried out a post-mortem examination of the
deceased on 19 May 2018 and put up a report which was tendered
and marked as exhibit P24.
[9] SP11 testified that the length of the body of the deceased was 163
cm and weighed 42 kg, a fact, which the prosecution harped upon to
assert that the deceased was a small and thin man who would be no
match for the five accused, all of whom were young men in their
twenties.
[10] The conclusion of SP11's post-mortem report was that the cause of
death was due to an injury to the head caused by blunt trauma or
blunt force trauma.
[11] SP11’s summary of findings is as follows:
i) there were signs of swelling and scrape marks on the head,

upper part, chest and right side of the body,
ii) there was swelling on the left side of the head;
iii) the skull was not cracked;
iv) the small brain suffered a concussion with bleeding in the head
and brain and a photograph (P8 (45)) clearly shows much
bleeding on the right side of the brain;
v) the bleeding occurred over a long period of time causing the

death of the deceased;
vi) the injury to the brain was caused by “coup” and

“contrecoup” where the part impacted was described as “coup”
causing the brain to rock to the other side and the impact upon
hitting the other side of the skull described as “contrecoup”;
vii) the above injuries caused the brain to swell with pressure
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therein to increase;
viii) the objects that are likely to cause such an injury are hard and
blunt such as wood, stone, and metal;
ix) punches with the hands and kicks with the legs would come
within the category of such blunt objects;
x) the swellings are similar suggesting that the injury was caused
at more or less the same time;
xi) no self-defence signs were detected on the deceased; and
xii) it was estimated that the deceased died within 6 to 12 hours

before the body of the deceased was received by the Forensic
Department on 18 May 2018 at 3:20 p.m.
[12] The prosecution highlighted that the post-mortem report also shows
that:
i) there was bleeding on the right side of the chest; and
ii) the frontal part of the right fourth and fifth ribs were broken
with the back of the seventh rib broken and there was swelling
over the ribcage.
[13] The breakages of these multiple ribs is an important fact for the
prosecution who rely upon it to debunk the defence’s case theory
that the deceased could have died as a result of a fall, and SP11
testified to this effect under examination-in- chief.
[14] In her testimony, SP11 (NE p 138) said:
"J: Berdasarkan pemeriksaan dada, ada kepatahan rusuk - tulang

rusuk kanan 4,5 tulang rusuk kiri 7. Untuk jatuh amat sukar untuk
sebabkan kepatahan kepada kedua-dua belah. Jika jatuh sahaja tidak
boleh sebabkan kepatahan sedemikian."
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[15] Under cross-examination, SP11 said that “dada sukar untuk patah
walaupun jatuh" (NE p 140 lines 4149 and 4150) which this Court
understood SP11 as saying that it is hard for the ribs to break even
in a fall.
[16] When further put to her under cross-examination, SP11, testified that
when one falls on the road and hit a stone, normally, seeing that the
left side of the deceased’s head had suffered a concussion from blunt
force trauma, there would be marks on the left side but she observed
that the left elbow and left arm have no injuries to show there was
such a fall, unless it was only the head that fell and not the body.
The inference to be drawn is that when a person falls to the left side,
there will normally be signs of injuries to the left elbow or arm and
in this case, there were none and therefore a fall can be discounted.
[17] SP11 could not conclusively say that the injuries were due to the
deceased having been attacked (NE p 142 lines 4216 and 4217).
[18] However, by reason of the scrape marks to the right calf (P24 p 2
injury no. 7) SP11 was of the view that the injuries were caused by a
combination of beatings and falling (NE p 142 line 4213 to 4215).
[19] The deceased was not found dead at the scene. Instead the deceased
went home and died at home after the alleged beating by the [five]
accused.
[20] On this, SP11, under re-examination and upon the Court seeking
clarification, was of the considered opinion that the blunt force
trauma to the left side of the deceased’s head caused the brain to
move and hit the right side of the skull causing it to bleed slowly
leading to his death and whilst the deceased could possibly be saved,
this is only if he had sought medical attention early and given the
proper prognosis by a specialist (NE p 143 line 4229 to 4331 and
lines 4234 to 4249).
[21] With the deceased not displaying external bleeding on his head, it
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would not be reasonable to expect the members of the deceased

family to rush him to the hospital (Enclosure 309 para 50) and even
if so, the availability of a [medical] specialist at that time who is
able to make an accurate prognosis is not a certainty.
[22] The Court observed that specimens of inter alia blood and urine of
the deceased were taken for toxicological analysis (P24).
[23] The evidence by Siti Hajar Aisah Binti Mohd Khamsi (SP4), a
Pegawai Sains from the Chemist Department of Malaysia whose
credentials were not challenged, was inter alia as follows:
i) She received a sample of blood (marked F1 later tendered and

marked as exhibit P19A);
ii) She also received a sample of urine (marked F2 later tendered

and marked as exhibit P19B);
iii) After analysis of the blood sample, she detected the presence
of methamphetamine and chloroquine with methamphetamine
being a dangerous drug under the First Schedule of the
Dangerous Drugs Act 1952 and chloroquine being a poison
under the Poisons Act 1952 (SP4 p 3);
iv) After analysis of the urine sample she detected the presence of
methamphetamine, amphetamine, codeine and chloroquine with
methamphetamine, amphetamine and codeine being dangerous
drugs under the First Schedule of the Dangerous Drugs Act
1952 and chloroquine being a poison under the Poisons Act
1952 (SP4 p 3); and
v) Under cross-examination, she says that tests to determine the

quantum of drugs and poison in a body have yet to be
developed (NE p 78 lines 2298 to 2317).
The injuries were caused by the accused
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Direct evidence
[24] To establish that the injuries were caused by the accused, the
prosecution relied primarily on the evidence of SP15.
[25] When SP15 arrived at the scene together with SP16 by the riverside,
SP15 identified four of the accused, namely accused number 2, 3, 4
and 5 at the scene. He saw, accused number 2, Kartik Krishnan A/L
Chandran (“0KT2), accused number 3, Arjun A/L Arun Ananthan
(“0KT3”), accused number 4, Sathis A/L Chandran (“0KT4”) and
accused number 5, Sivabalan A/L Veeran (“OKT5”) were drinking
alcohol at the place where tins of beer were found. He testified that
shortly after the deceased came, accused number 1 (Jaya Ganesh
A/L Jayabalan (“OKT1”) arrived from the direction of Chenderong.
[26] SP15 said he was on an elevated position (NE p 224 line 6646) and
was less than 4.8 meters away (Enclosure 309 pp 41 para 61 and NE
p 224 line 6648) from the second to the fourth accused and he saw
them for a period of about 15 to 20 minutes before the deceased
arrived.
[27] According to SP15, OKT2 asked both SP15 and SP16 to contact the
deceased to come to what turned out to be the scene of the alleged
crime.
[28] Under cross examination, learned counsel for all the accused put to
SP15 that the several accused, in particular OKT2, had prohibited the
deceased from going to that place to sell drugs and I set out here the
notes of evidence (NE p 228 line 6775 to 6780) which I find telling:
“S: Kamu juga tidak tahu OKT-OKT khasnya OKT2 telah melarang
Ah Pow datang ke situ untuk menjual dadah? Kamu tidak tahu?
Mah: Is that a put question?
PB: Yes, put question.
J: Saya tidak tahu. Cuma sebelum ini Ah Pow pernah bagitahu dia
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selalu dikacau. ”
[29] This piece of evidence volunteered by the defence through their

learned counsel would lead to the inference that [all] the accused
know Ah Pow (the deceased) is a drug dealer, and that Ah Pow is not
welcome to sell drugs in that area. See Megat Halim Megat Omar v
PP [2008] MLJU 647 (CA) where Abdull Hamid Embong JCA said:
"The appellant's defence can be ascertained not merely from his own
evidence but also the line of cross-examination of the prosecution's
witnesses (see Kuli & Ors v Emperor AIR [1930] Cal 442, cited in
PP v Dato Seri Anwar Bin Ibrahim (No. 3) [1999] 2 MLJ 1). This has
been termed as a rule of essential justice. ”
[30] SP15 recounted that when the deceased arrived, shortly so did OKT1.
This was followed by OKT2 going towards the deceased and
slapping the deceased who was still on his motorcycle. Then SP15
said the other four accused, OKT1, OKT3, OKT4 and OKT5 then ran
towards the direction of the deceased and surrounded him.
[31] SP15 said he was not able to see how many times OKT2 slapped the
deceased but he saw, OKT2 pulling the deceased down from his
motorcycle before the other accused ran and surrounded the
deceased. He and SP16 then left the scene to try to seek assistance
from the deceased’s brother.
[32] The prosecution asserted that the identification of all the accused by
SP15 was credible because:
i) at that time when he saw the four accused followed by the

arrival of OKT1, it was about 7:00 p.m. with some light and it
was still quite bright;
ii) he had prior to that been at the place for about 15 to 20

minutes;
iii) he did not only just saw them in passing but he sees them
10
regularly with two of them, OKT2 and OKT4 who are

brothers, having worked for him for a few weeks as manual
labourers in renovation works with him being their supervisor;
iv) as for the other accused he sees them regularly and meets them
in the Kampung Baru Chenderong area with him knowing that
one of the father of the other [three] accused, works in garbage
disposal;
v) he himself stays in Kampung Baru Chenderong and has stayed

there for a long time;
vi) he identified all the [five] accused in Court.
[33] SP16 supported SP15’s testimony that he had gone with SP15 to the
riverside scene and saw four Indian men drinking alcohol. He also
said he was able to identify four of the accused at an identification
parade but was not able to identify them in Court (NE p 261 lines
7741 to 7748).
Circumstantial evidence
[34] DNA testing on tins of Carlsberg beer cans (Exhibit P19A (2),
P19B(2), P19C(2) found at the scene by the Crime Scene Forensic
Officer, Inspector Siti Rabiah Binti Kassim (SP12) witnessed by the
Investigating Officer, ASP Mohd Faizul Bin Mohd Isa (SP19) carry
DNA samples that matched that of OKT2, OKT3 and OKT4
according to the DNA Chemist, Siti Hajar Aishah binti Mohd Khamsi
(SP5).
[35] The above DNA evidence obtained from the beer cans placed at least
three of the accused, OKT2, OKT3 and OKT4 at the scene where the
deceased was beaten.
[36] There were broken pieces of a part of the motorcycle at the scene
with registration number AFC 8427 registered under the name of
Chung Swee Kok (SP9) one of the sisters of the deceased (NE p 273
11
line 8120 to 8125) as can be seen in the photographs in P6(14) and

P6(15) with the deceased’s motorcycle left at the scene and seen in
P6 (13) and P6 (23 to 27).
[37] The IO (SP19) had retrieved at the scene (NE p 308 pp 307 and 308
para 10) a bunch of keys (P6 (10), (11) and (12) strewn on the
ground near the motorcycle and a damaged helmet (Exhibit P6 (20 to
22). In the bunch of keys, can be seen a key to a motorcycle. The
motorcycle was later returned by SP19 to SP9 (NE p 309 para 13).
[38] Despite coming to the scene on a motorcycle, after the alleged

beating, the deceased left his motorcycle, walked to SP16’s house
who then asked SP16 to take him home (NE p 259 lines 7699 to
7704).
[39] With the motorcycle key strewn onto the ground, a fair inference to
be drawn is that the deceased would have been dispossessed of the
same by the accused who were at the scene because it would not be
logical for Chung to have thrown it away himself and having to then
walk to SP15’s home which is about one kilometre away (NE p 205
line 6090), and having to request SP15 to call SP16 to send him
home (NE p 218 lines 6470 to 6487 and p 258 lines 7653 to 7655 and
NE 7693 to 7688). In fact, SP15 said that Chung told him that the
accused threw his motorcycle keys into the river (NE p 219 line 6490
to 6493), which in my considered view, was not an unreasonable
assumption of Chung who was seriously injured and having been
dispossessed of his keys.
[40] Evidence was given by Ho Kok Choi (SP8) who was a neighbour of
the deceased for more than ten years and whose house is just next to
that of the deceased’s, that (NE p 95):
i) On the night of 17 May 2018 at about 8:30 p.m., he was at

home watching television and the deceased came to the back of
his house calling him;
12
ii) The deceased asked him for his help to pick up his motorcycle;
iii) The deceased told him that he was grabbed (“ragut”) and
beaten up by 5 Indians who had before this roughed (“ragut”)
him up twice in Kampung Chenderong;
iv) That the 5 Indians had beaten him with a helmet;
v) That the deceased’s trousers and shirt were wet, he looked pale
and was limping;
vi) After chatting for about ten minutes, the deceased’s sister,
Chung Sooi Khuan (SP10) came to call the deceased to go
home;
vii) Around 11 p.m., he was again asked by SP10 to go over to the

deceased’s house which is just ten (10) feet away to see the
deceased who is said to be sleeping and unconscious;
viii) When he went over, two other sisters of the deceased namely
Chung Swee Kok (SP9) and Chung Siew Keng (who was on the
list of witnesses and not called but offered to the defence) were
present and saw the deceased on the floor still with his wet
clothes;
ix) The deceased had saliva foam by the side of his mouth;
x) He asked SP9 to call for an ambulance and to take the deceased

to the hospital but SP9 was worried that the deceased may
wake up and scold her;
xi) Under cross examination he agreed that the deceased was a

drug addict having been arrested by the police before;
xii) He went on to say under cross examination that the deceased

told him he was beaten and after that he fell into the river; and
xiii) The deceased was scared that if he goes to the hospital he
13
would be detained by the hospital for taking drugs.
[41] At the time of death on 18 May 2018, the accused was intoxicated
with drugs as could be seen from the tests carried out on his blood
and urine samples (SP4 p3).
Intention and common Intention
[42] The mens rea or intention which is incumbent upon the prosecution
to prove, based on the evidence of SP11 and SP15 and the
cumulative circumstantial evidence, including the nature of the
injuries, has to fall within section 300 of the Penal Code which
provides, subject to certain specified exceptions, none of which are
applicable in the case at hand, that "culpable homicide is murder:
“(a) if the act by which the death is caused is done with the intention
of causing death;
(b) if it is done with the intention of causing such bodily injury as

the offender knows to be likely to cause the death of the person to
whom the harm is caused;
(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; or
(d) if the person committing the act knows that it is so imminently

dangerous that it must in all probability cause death, or such bodily
injury as is likely to cause death, and commits such act without any
excuse for incurring the risk of causing death, or such injury as
aforesaid."
[43] With the five accused jointly charged, pursuant to section 34 of the
Penal Code, the prosecution has to prove that the act or acts done by
them were in furtherance of the common intention of all.
[44] The prosecution asserted that there was an earlier plan by the five
14
accused where the deceased was requested to meet them at the

riverside scene. The evidence relied upon is that of SP15 who
testified that the deceased telephoned SP16 to send him (SP15) to
meet him there. Whilst there, OKT2 had asked SP15 to call the
deceased to the scene. And when the deceased arrived, OKT2
immediately ran in the direction of the deceased, slapped him and
pulled him down from his motorcycle with the others running
forward to surround the deceased.
[45] SP11’s testimony was the injuries were due to a barrage of multiple
blows; not only to the head but also to his ribs, three of which were
broken.
[46] The deceased, aged 54 was only 163 cm and weighed only 42 kg had
no defensive injuries on him leading to the irresistible inference that
the [five] accused had injured the deceased who was not able to
defend himself.
[47] Reference was made by the prosecution to the case of Sabarudin Non
& Others Appeals v PP [2005] 1 CLJ 466 (CA) which held that:
Common Intention of 2 nd and 3 rd accused
“To deal with the criminal liability of the 2nd and 3rd accused, it is
necessary first to quote from two recent authorities to remind
ourselves of the law governing s. 34. In Suresh v. State of Uttar
Pradesh AIR [2001] SC 1344, Sethi J speaking for himself and
Agrawal J said:
“Section 34 of the Indian Penal Code recognises the principle of

vicarious liability in the criminal jurisprudence. It makes a
person liable for action of an offence not committed by him but
by another person with whom he shared the common intention. It
is a rule of evidence and does not create a substantive offence.
The section gives statutory recognition to the common-sense
principle that if more than two persons intentionally do a thing
15
jointly, it is just the same as if each of them had done it

individually. There is no gainsaying that a common intention pre-
supposes prior concert, which requires a pre-arranged plan of
the accused participating in an offence. Such a pre-concert or
pre-planning may develop on the spot or during the course of
commission of the offence but the crucial test is that such plan
must precede the act constituting an offence. Common intention
can be formed previously or in the course of occurrence and on
a spur of moment. The existence of a common intention is a
question of fact in each case to be proved mainly as a matter of
inference from the circumstances of the case, (emphasis added.)”
[48] Premised upon all the aforesaid, the prosecution submitted that it has
made out a prima facie case against the [five] accused based upon
the “overwhelming”, “consistent” and closely-linked evidence led
and asked for the five accused to be called to enter on their defence
to meet the charge under section 302 Penal Code.
Defence’s submissions
[49] In his summary of facts, learned counsel for the defence asserted that
after the deceased arrived at the riverside scene to meet SP15 and
SP16, there were 5 Indian men. SP15 and SP16 returned home
without meeting the deceased who later walked to SP15’s home
followed by SP16 sending the deceased home. The deceased did not
complain about anything to SP15 and SP16.
[50] The defence’s position is that the prosecution is seeking to prove the
charge premised upon circumstantial evidence. Reliance was placed
upon the test as adopted by our Federal Court in Magendran Mohan v
PP [2011] 1 CLJ 805 where it was held that:
“[10] The mode of evaluating circumstantial evidence has been

stated by the Supreme Court of India in Hanumant Govind
Nargundkar v. State of Madhya Pradesh AIR [1952] SC 343 as
16
follows:
It is well to remember that in cases where the evidence is of a

circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance be
fully established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every hypothesis
but the one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show that
within all human probability the act must have been done by the
accused. ”
[11] Again, in Chandmal & Anor v. State of Rajasthan AIR [1970]

SC 917, the Supreme Court of India in dealing with circumstantial
evidence had this to say:
It is well settled that when a case rests entirely on

circumstantial evidence, such evidence must satisfy three tests.
Firstly, the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established.
Secondly, those circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused. Thirdly,
the circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within
all human probability the crime was committed by the accused
and no one else. That is to say the circumstances should be
incapable of explanation on any reasonable hypothesis save that
of the accused's guilt. (See also: Ghambir v. State of
Maharashtra AIR [1982] SC 1157).
[51] Learned counsel for the five accused raised seven points and
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premised on any of these, he asserted that the prosecution has failed

to make out a prima facie case. These seven points are as follows:
i) The testimony given by SP16 who took SP15 to the riverside

scene was different from that given by SP15. SP16’s version
was that nothing happened whilst they were there. This gives
rise to two sets of evidence which contradict, see PP v Lee Eng
Kooi [1993] 2 MLJ 322 (HC), or at least raise serious doubt as
to whether OKT2 slapped the deceased followed by all the
accused surrounding the deceased, see Mohd Faizul Md Saaid
[2021] 1 LNS 652 (HC). And, with SP16 being a prosecution
witness who was not impeached or treated as a hostile witness,
his evidence cannot be dismissed but has the net effect of
raising a serious doubt, see Ahmad Norizan Mohamad v PP
[2017] 10 CLJ 599 (CA). Further, with the maker of the
identification report, Insp Siti Ramlah binti Abdullah, not
called to testify, the exhibit P62A-E, amounts to documentary
hearsay and cannot be relied upon and in any event, these
documents contradict the evidence of SP15 and SP16 in court.
ii) The injury to the deceased’s head could have been caused by a
fall as said by SP11 and there is evidence by SP8 that the
deceased told him that he was beaten and after that he fell into
the small river. Reliance was placed on the authority of Paiman
Bin Doyo v PP [1952] 18 MLJ 156 where insufficient
consideration was given by the trial judge in his summing up
for consideration of the jury that the cause of death could also
be due to fractures sustained by the skull instead of only the
knife wound.
iii) The injury to the deceased was not fatal with reliance placed
upon the evidence of SP11 as narrated above that the brain was
bleeding and if early medical treatment had been sought and
obtained, the deceased had a chance of survival. Reliance was
placed upon the evidence of SP6, SP8 and SP9 that the deceased
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was still alive up until the morning of 18 May 2018. Reliance

was placed upon the case of Cheong Kam Kuen v PP [2012] 8
CLJ 537 (FC) and PP v Muh Pirman & 4 others [2017] 1 LNS
960 (HC) where the charge was then reduced to one of culpable
homicide under section 299 Penal Code;
iv) The helmet, handphone and SD card being items seized have no
probative value at all as there is no evidence to connect them to
the deceased, with reliance placed upon Abdullah Bin Saad v
PP [1956] 22 MLJ 92 (CA) and Ng Thian Soong v PP [1990] 2
MLJ 148 (SC).
v) That SP8’s testimony (see the summary in para [40] above)

cannot be relied upon at all on the premise that it makes no
sense for the deceased to ask him to collect his motorcycle
when he could have asked SP15 and SP16. SP15 and SP16 did
not say that the deceased walked with a limp, and whilst they
were there for 10 minutes nothing happened;
vi) The deceased was a drug addict, and there is a big gap between
the alleged incident and the time of death, with there being
evidence that SP4 detected methamphetamine, amphetamine,
codeine and chloroquine in the blood and urine samples, that
the deceased walked to SP15’s house and in the process had to
walk over a river and pond before he was seen by SP10 reading
a newspaper before sleeping at 10:30 p.m. on 17 May 2018 and
anything could have happened in between.
vii) That common intention was not proven against the five accused.
SP15’s testimony on the other accused running towards the
deceased after OKT2 slapped him does not tell their intention,
whether it was to stop or to assist OKT2 or the deceased.
Whether a prima facie case has been made out
[52] Both the learned deputy Public Prosecutor (“DPP”) were conscious
19
that the prosecution has to make out a prima facie case at the end of
the prosecution case. The provisions of section 180 of the Criminal
Procedure Code (“CPC”) and the principles distilled from the oft-
cited cases of Dalip Bhagwan Singh v. Public Prosecutor [1997] 4
CLJ 645 (FC); [1998] 1 MLJ 1 (FC) and Looi Kow Chai & Anor v
PP [2003] 1 CLJ 734 (CA) were cited.
[53] Instead of Dalip Bhagwan Singh v PP (supra), with due respect, I

would refer to Balachandran A/L Selvaratnam v PP [2005] 1 CLJ 85
(FC) instead. However, before that, so as to facilitate reading, I
reproduce hereunder the provisions of section 180 CPC :
“(1) When the case for the prosecution is concluded, the Court shall
consider whether the prosecution has made out a prima facie case
against the accused.
(2) If the Court finds that the prosecution has not made out a prima
facie case against the accused, the Court shall record an order of
acquittal.
(3) If the Court finds that a prima facie case has been made out
against the accused on the offence charged the Court shall call upon
the accused to enter on his defence.
(4) For the purpose of this section, a prima facie case is made out
against the accused where the prosecution has adduced credible
evidence proving each ingredient of the offence which if unrebutted
or unexplained would warrant a conviction. ”
[54] In Balachandran A/L Selvaratnam v PP [2005] 1 CLJ 85 (FC), a case

on possession and trafficking of dangerous drugs, the Federal Court
held that:
“As the accused can be convicted on the prima facie evidence it must
have reached a standard which is capable of supporting a conviction
beyond reasonable doubt.
20
…… where the accused remains silent there will be no necessity to

re-evaluate the evidence in order to determine whether there is a
reasonable doubt in the absence of any further evidence for such a
consideration. The prima facie evidence which was capable of
supporting a conviction beyond reasonable doubt will constitute
proof beyond reasonable doubt.”
[55] In Looi Kow Chai & Anor v PP (supra), a case where two appeals on
charges for drug trafficking were heard together, the Court of
Appeal, after analysing a number of high authorities on the exercise
a Judge sitting alone has to do at the end of the prosecution case,
held that:
“It therefore follows that there is only one exercise that a judge
sitting alone under s. 180 of the Code has to undertake at the close
of the prosecution case. He must subject the prosecution evidence to
maximum evaluation and ask himself the question: If I decide to call
upon the accused to enter his defence and he elects to remain silent,
am I prepared to convict him on the totality of the evidence
contained in the prosecution case? If the answer is in the negative
then no prima facie case has been made out and the accused would
be entitled to an acquittal.”
[56] This Court also bears in mind the caution given by Sharma J in
Public Prosecutor v. Saimin & Ors [1971] 1 LNS 115; [1971] 2 MLJ
16.
"It is the duty of the prosecution to prove the charge against the
accused beyond all reasonable doubt and the court is not entitled
merely for the sake of the joy of asking for an explanation or the
gratification of knowing what the accused have got to say about the
prosecution evidence to rule that there is a case for the accused to
answer. The proof of a case against the accused depends for its
support not upon the absence or weakness of the explanation on his
part but on the positive affirmative evidence of his guilt given by the
21
prosecution."
Maximum evaluation of evidence by the Court
[57] In undertaking a maximum evaluation of the evidence, I will first

deal with the probative value, if any, of the identification reports in
P62 (A-E).
i) I had allowed the identification reports to be marked on the

premise that they were in the possession of ASP Mohd Faizul
Bin Mohd Isa, the Investigating Officer (SP19) by relying upon
PP v Lin Lian Chen [1990] 1 CLJ Rep 285 (HC), cited by the
learned DPP but its probative value which depends on whether
the maker would be called, was to be assessed at the end of the
prosecution case (NE p 368 lines 10930 to 10934);
ii) As it turned out, the maker, Insp Siti Ramlah Binti Abdullah,
the maker of all these exhibits was not called by the
prosecution and was only offered to the defence (P63);
iii) By reason, thereto, exhibits P62 (A-E) where SP15 and SP16
were said to have identified all the five accused with the
accompanying statement that they saw the deceased having
been beaten by each of the accused at the riverside scene have
negligible probative value.
[58] Nevertheless, upon giving the evidence given by both SP15 and SP16
maximum evaluation:
i) I would agree with the prosecution that each of them was

giving a narration of what they saw. Unlike PP v Lee Eng Kooi
(supra), the prosecution was not leading two sets of evidence.
As was accepted by Raja Azlan Shah FJ (as His Majesty then
was) in Public Prosecutor v Datuk Haji Harun Bin Haji Idris
(No. 2) [1977] 1 MLJ 15 (HC), there will always be
discrepancies in the evidence of witnesses. Wan Yahya J (later
22
FCJ) in Pie Bin Chin v PP [1985] 234 at 235 also accepts that
discrepancies no doubt would appear in most cases in evidence
of witnesses for the prosecution and defence.
ii) On SP16 evidence (NE p256 line 7613 and p 257 line 7643)
that he did not know whether the deceased was at the riverside
scene and did not see the deceased there, there is independent
evidence which placed the deceased as having gone to the
scene on his [sister’s (SP9)] motorcycle on 17 May 2018, see
the photographs of the motorcycle P6 (10,13, 23 to 27) taken at
the scene by Balwant Singh a/l Gurdit Singh (SP1) on the
instructions of SP19 who went to the scene with SP12 and
SP18 on the morning of 18 May 2018 (NE p 307 paras 9 and 10
and p 309 para 13).
iii) Under cross examination, the defence had put to SP15 that the
accused do not welcome the deceased going to that area (NE p
228 lines 6772 to 6780).
iv) My observation of SP16 is that he studiously avoided looking

at the accused in the dock and this will be verified by the court
video recording, giving me the impression that he was a fearful
witness, fearful to give testimony against any of the accused
save to say he brought SP15 to the scene and saw four Indians
drinking alcohol.
v) With independent evidence led placing the deceased at the

scene on 17 May 2018, DNA evidence placing three of the
accused, OKT2, OKT3 and OKT4 via samples collected from
beer cans, at the scene, in my considered view it would not be
justified to jettison the whole of SP15’s evidence as this is not
a case of contradictory evidence led without independent
evidence led unlike whether firearms was or was not found in a
certain place as in PP v Lee Eng Kooi (supra), or a particular
piece of wood was actually used to hit the deceased as in PP v
23
Mohd Faizul Md Saaid (supra) or the evidence of the witness

who said he saw no drugs on the accused when the police did a
body search on him as in Ahmad Norizan Mohamad v PP
[2017] 10 CLJ 599.
[59] On the cause of death:
i) I am satisfied with the evidence of SP11 that the deceased had

slowly bled to death from the fatal blow (“coup”) to the left
side of his head causing his brain to knock (“contrecoup”)
against the opposite right side of his skull;
ii) I am also guided by the Court of Appeal in Iskandar Zulkarnain

bin Zolkifly v Public Prosecutor [2022] 2 MLJ 512; [2022] 1
LNS 127, where Justice Abu Bakar Jais JCA (now FCJ)
speaking for the Court of Appeal said at para [59]:
“.... The head is also a vital part of the body. Not just the
heart or lung. There were injuries to the head of the victim.
Judicial notice is taken, even in football now, when there
is collision on the heads of players, the referee is
instructed to stop play, so that the players will get
immediate treatment. That is how serious an injury to the
head is perceived.”*
(* see the 2015 movie “Concussion” a true story about the

struggle of a doctor calling for the need for [American]
football players to protect their heads because of trauma
suffered by their heads causing their brains to rock and hit
against the opposite side of their skulls when their heads are
hit and to suffer from CTE or “Chronic Traumatic
Encephalopathy” and his findings led to football players
having to wear helmets to avoid or minimise trauma to the
head)
iii) As pointed out by SP11, the colour photograph in P8 (45)
24
depicts the gruesome details;
iv) Besides this blow caused by blunt force trauma to the head, the
other injuries such as the three broken ribs and other
lacerations with similar swellings support the prosecution case
that the deceased was subjected to multiple blows;
v) The injuries were such that the deceased could not even get
onto his motorcycle to go back and had to walk to SP15’s house
to ask him to request SP16 to send him home, and SP16 did
then send him home (NE p 258 line 7657) which is two to three
kilometres away (NE p 258 line 7655);
vi) Even if he could get onto his motorcycle, his keys have been
thrown away onto the ground which is covered with grass (P6
(10 - 12)) and in his injured state with broken ribs, it would be
difficult for him to find the keys;
vii) The multiple injuries were most probably caused by multiple

blows delivered at around the same time due to the uniformity
of swellings as explained by SP11 which also most probably led
to the breaking of the three ribs which SP11 testified could not
have been due to a fall;
viii) SP11 also discounted the fall theory advanced by learned

counsel for the defence on the ground that there were no marks
to indicate a fall on the left side where the injury to the head
was;
ix) The deceased’s mouth was foaming with saliva on the night of
17 May 2018 leading to the inference that he was obviously not
well.
[60] That the deceased had drugs in him as found by SP4 upon being
given the blood and urine specimens taken by SP11 during the post
mortem:
25
i) would in my considered view give a reasonable explanation as

to why the deceased was able to withstand what would
undoubtedly be the pain caused by the beatings he received and
not seek early medical attention; or
ii) that these drugs would also explain his reluctance in reporting
to the police, as explained by SP8 on why he is reluctant to
report to the police fearing he may be sent to the hospital for
examination and probably leading to drugs being detected in
him (NE p 95 line 2814 to 2817) and detained with this being
corroborated by the deceased’s sister SP9 (NE p 107 lines 3165
to 3170).
Common intention
[61] Section 34 of the Penal Code provides that:
“When a criminal act is done by several persons, in furtherance of

the common intention of all, each of such persons is liable for that
act in the same manner as if the act were done by him alone. ”
[62] The leading authority on common intention is Farose Bin Tamure

Mohamad Khan v Public Prosecutor And Other Appeals [2016] 6
MLJ 277 (FC) where Raus Sharif PCA (later CJ) speaking for the
Federal Court in a panel of five said:
“[48] At this juncture, it is convenient first to address the generally

accepted principles on the operation of s. 34. The position in respect
of these elements is fairly uncontroversial, and the relevant
principles gleaned from the authorities in Malaysia, Singapore and
India can be briefly dealt with.
[49] It is widely acknowledged that s. 34 is a rule of evidence which

embodies the common sense principle that if two or more persons
intentionally do a thing jointly, it is just the same as if each of them
had done it individually (Krishna Rao a/l Gurumurthi v Public
26
Prosecutor and another appeal [2009] 3 MLJ 643).
[50] If it is shown that the criminal act complained against was

done by one of the accused persons in furtherance of the common
intention of all, liability for the crime may be imposed on any one
of the persons in the same manner as if the act were done by him
alone (Mahbub Shah v Emperor AIR 1945 PC 118).
[51] The provision is intended to meet a case in which it may be

difficult to distinguish between acts of individual members of a
party who act in furtherance of the common intention of all or to
prove exactly what part was taken by each of them (Hari Ram v
State of Uttar Pradesh [2004] 8 SCC 146). In those circumstances,
the law makes no distinction between them or between the parts
played by them in doing the criminal act (Bashir v State AIR 1953
All 668).
[52] Presence is not necessary to constitute participation in every

case. It is sufficient for the accused to have done an act with some
nexus to the offence (Sabarudin bin Non & Ors v Public Prosecutor
[2005] 4 MLJ 37 and Manikumar Sinappan & Ors v Public
Prosecutor [2015] MLJU 1956; [2016] 2 MLRA 1.
[53] Common intention, distinguished from the same or similar

intention, requires proof that the criminal act was done in
pursuance of a pre-arranged plan (Mahbub Shah). Such pre-
planning may develop on the spot or in the course of commission of
an offence, the crucial test being the plan must precede the
commission of the offence ((1) Namasiyiam (2) Rajindran (3) Goh
Chin Peng, And (4) Ng Ah Kiat v Public Prosecutor [1987] 2 MLJ
336).
[54] A common intention may be often be difficult to prove by way of

direct evidence in practice, but it can be inferred from the
circumstances of the case and the conduct of the accused (Dato’
27
Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ

232).’’
[63] On whether the [five] accused caused his death with common
intention the following pieces of evidence incriminate them:
i) The evidence of SP15 having seen them before, particularly,

with OKT2 and OKT4 having worked for him and under his
supervision;
ii) SP15 placing them at the scene, therefore, has great weight;
iii) SP8 recounting that the deceased told him that on the night
before he died, five Indians had beaten him has supportive
value, see Subramanian v PP [1956] 1 MLJ 220 (PC) for the
principle that:
“It is not hearsay and is admissible when it is proposed to

establish by the evidence, not the truth of the statement, but the
fact that it was made. The fact that the statement was made,
quite apart from its truth, is frequently relevant in considering
the mental state and conduct thereafter of the witness or of
some other person in whose presence the statement was made”;
iv) The evidence of samples of DNA matching OKT2, OKT3 and

OKT4 at the scene; and
v) that SP15 had given evidence under cross-examination that

OKT2 asked him to call the deceased to go to the riverside
scene where the four accused OKT2, OKT3, OKT4 and
OKT5 were waiting (NE p 224 line 6658 to 6661)
“S: Itu adalah sembang biasa sahaja?
J: Tidak. Dia minta kami call Ah Pow (Chung) datang.”
vi) when Chung arrived, they were shortly joined by OKT1, and
28
OKT2 ran to where Chung was (NE p 225 line 6686, 6697 and
6698);
vii) the accused were not happy that Chung was peddling drugs in
their turf. Under cross-examination of SP15 (NE p 228 line
6775) it was put to him that:
“S: Kamu juga tidak tahu OKT-OKT khasnya OKT2 telah

melarang Ah Pow (Chung) datang ke situ untuk menjual
dadah? Kamu tidak tahu?
Mah : Is that a put question?
PB : Yes, put question.
J: Saya tidak tahu. Cuma sebelum ini Ah Pow pernah bagitahu

dia selalu dikacau. ”
[64] Guided by the authorities cited above that common intention could be
formed on the spot and at the spur of the moment and, in this case
the accused has formulated a common intention to teach Chung a
lesson so as to prevent him from peddling drugs in their turf, and in
furtherance of this intention they had jointly attacked Chung leaving
him in such a state that he could not get onto his motorcycle to go
home; that there was violence without a doubt given the injuries
suffered by the deceased, and the broken parts of his motorcycle.
[65] I will now deal with the probative value of the evidence of SP8:
i) SP8 maintained his testimony of his narrative set out in

paragraph [37] above under cross examination (NE 99 to 103)
and was unshaken;
ii) SP10 did support SP8’s testimony that he is a neighbour of the

deceased and was called to look in on the deceased at about
11:00 p.m. on 17 May 2018;
29
iii) SP9 testified she called out to SP8 from the back of the
deceased’s house for him to go over to see the deceased (NE p
106 line 3135)
iv) In fact, the defence relies upon the evidence of SP8 that:
a) SP8 saw the deceased with wet clothes to advance their case
theory that the deceased fell into the river and hit his head
(Enclosure 307 p 16);
b) SP8 checked the breath of the deceased the following day on

18 May 2018,
to advance their case theory put during cross-examination that

the deceased could survive with early medical attention.
[66] Unless there is evidence to rebut his testimony, the Court would
accept the evidence of SP8 which corroborates SP15’s narrative that
5 Indian men identified by SP15 to be the five accused surrounded
the deceased after OKT 2 slapped him with the deceased later found
with all the injuries including the broken ribs and the fatal blow
delivered to the head leading to the irresistible inference that they
had ganged up to beat up the deceased.
[67] On the assertion by the defence that there is a long gap between the
riverside scene and Chung getting home and that anything could have
happened, it is my considered opinion that, of course, anything could
have happened but as said by Lord Denning in Miller v Minister of
Pensions [1947] 2 All ER 372 and which was quoted with approval
by our Court of Appeal in Dato' Sri Mohd Najib Hj Abd Razak v. PP
[2022] 1 CLJ 491 at para [281] that:
"In view of this definition the best explanation of 'reasonable doubt’

is perhaps that given by Denning J in Miller v. Minister of Pensions
[1947] 2 All ER 372 where he said (at p. 373):
(The degree of cogency) need not reach certainty, but it must
30
carry a high degree of probability. Proof beyond reasonable doubt

does not mean proof beyond the shadow of a doubt. The law would
fail to protect the community if it 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 what will suffice (see also Tang Kin Seng v.
Public Prosecutor [1997] 1 SLR 46 (HC)).”
[68] The prosecution had in their opening speech asserted that they will
be making out their case pursuant to section 300 (c) Penal Code.
[69] The Federal Court in Zulkiple Mohamad v. PP [2022] 1 CLJ 673

with reliance placed upon the ratio decidendi of Virsa Singh v State
of Punjab AIR (45) 1958 SC 465, held that it is irrelevant and totally
unnecessary to enquire into what kind of injury the accused intended
to inflict. The question is not whether the intention of the accused is
to inflict a serious injury or a trivial one but whether he intended to
inflict the injury that is proved to be present. In the Zulkiple
Mohamad v PP (supra), it was held that the injuries that were
proved to be present and which the appellant intended to inflict were
the injuries on the deceased's head which fractured her skull, and
where the prosecution relies on s. 300 (c) of the Penal Code, it is
not required to prove intention to cause bodily injury of a kind that
is sufficient in the ordinary course of nature to cause death.
[70] What is required, is proof of that intention to hit the victim. The
Federal Court in Zulikple Mohamad v PP (supra) went on to hold
that what the prosecution needed to prove in order to bring the case
under s. 300 (c) Penal Code is to show that the injury proved to be
present was caused intentionally and not accidentally and that the
injury was sufficient in the ordinary course of nature to cause death.
[71] In this case the injuries were present including the fatal blow to the
31
left side of the head of the deceased and the force required to inflict
it must be such that it was caused intentionally and not accidentally,
and it was likely to cause death.
[72] On the defence’s assertion that the deceased could have been saved
if he had been given timely medical treatment, this is devoid of merit
because Explanation 2 of section 299 of the Penal Code expressly
provides that:
“Where death is caused by bodily injury, the person who causes such
bodily injury shall be deemed to have caused the death, although by
resorting to proper remedies and skilful treatment the death might
have been prevented.”
[73] After taking into account the direct evidence of OKT2 having been
seen to have slapped the deceased and all the circumstantial evidence
narrated above including the broken ribs of the deceased which could
not probably have been caused by a fall, and after having given the
evidence maximum evaluation, I am of the considered view that the
prosecution has made out a prima facie case against the five accused
and all of them were called to enter on their defence.
[74] For the sake of completeness, before arriving at the aforesaid

conclusion that the prosecution had made out a prima facie case, I
had considered the five exceptions provided under section 300 of the
Penal Code and had found that on the evidence as narrated above,
none of them apply to the five accused. These exceptions are:
“Exception 1 - 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, or causes the death of any other person by mistake or
accident.
Explanation - Whether the provocation was grave and sudden

enough to prevent the offence from amounting to murder, is a
32
question of fact.
Exception 2 - Culpable homicide is not murder if the offender, in the

exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law, and causes the
death of the person against whom he is exercising such right of
defence, without premeditation and without any intention of doing
more harm than is necessary for the purpose of such defence.
Exception 3 - Culpable homicide is not murder if the offender, being

a public servant, or aiding a public servant acting for the
advancement of public justice, exceeds the powers given to him by
law, and causes death by doing an act which he, in good faith,
believes to be lawful and necessary for the due discharge of his duty
as such public servant, and without ill will towards the person whose
death is caused.
Exception 4 - Culpable homicide is not murder if it is committed

without premeditation in a sudden fight in the heat of passion upon a
sudden quarrel, and without the offender having taken undue
advantage or acted in a cruel or unusual manner.
Exception 5 - Culpable homicide is not murder when the person

whose death is caused, being above the age of eighteen years, suffers
death, or takes the risk of death with his own consent.”
[75] The three options available to the accused were explained to them
and all of them opted to give sworn testimony.
Defence case
[76] All the accused gave evidence. However, pursuant to Section 182A
(1) CPC, at the conclusion of the trial, the Court shall consider all
the evidence adduced before it and shall decide whether the
prosecution has proved its case beyond reasonable doubt.
[77] From my evaluation of the evidence, whilst I am satisfied from the
33
direct and circumstantial evidence that the accused had the common
intention of inflicting the bodily injuries on Chung as is likely to
cause death, I do not think that the bodily injuries were done with
the intention of committing murder as provided under section 300 of
the Penal Code.
[78] Instead, I am satisfied that from all the evidence led by the
prosecution, a charge under section 304 (a) of the Penal Code
would be more apt.
[79] Section 304 (a) of the Penal Code provides as follows:
Whoever commits culpable homicide not amounting to murder shall

be punished-
(a) with imprisonment for a term which may extend to thirty

years, and shall also be liable to fine, if the act by which the
death is caused is done with the intention of causing death, or
of causing such bodily injury as is likely to cause death; or
(b) with imprisonment for a term which may extend to ten

years or with fine or with both, if the act is done 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. ”
[80] It would be useful to set out hereunder the provisions of section 299
of the Penal Code which provides what is culpable homicide:
“Whoever causes death by doing an act with the intention of causing

death, or with the intention of causing such bodily injury as is likely
to cause death, or with the knowledge that he is likely by such act to
cause death, commits the offence of culpable homicide.
ILLUSTRATIONS
(a) A lays sticks and turf over a pit, with the intention of thereby
34
causing death, or with the knowledge that death is likely to be

thereby caused. Z, believing the ground to be firm, treads on it, falls
in and is killed. A has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know it. A, intending

to cause, or knowing it to be likely to cause Z's death, induces B to
fire at the bush. B fires and kills Z. Here B may be guilty of no
offence, but A has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and steal it, kills B, who
is behind a bush; A not knowing that he was there. Here, although A
was doing an unlawful act, he was not guilty of culpable homicide, as
he did not intend to kill B, or to cause death by doing an act that he
knew was likely to cause death.”
[81] In my considered view, all the accused had the intention of giving
Chung a beating with the view to stop Chung from coming to their
turf to peddle drugs with the knowledge that such a beating is likely
to cause death but that they did not have the intention of causing his
death. However, as it turned out, the beating resulted in the death of
Chung.
[82] In Pendakwa Raya v Cho Sing Koo [2019] MLJU 659 paras [38] to
[41], Mohd Nazlan Bin Mohd Ghazali J. (now JCA) held that matters
which constitute the essence of a finding of prima facie such as in
particular whether the ingredients of the offence have been proved
cannot be revisited at the end of the entire case and are to be tested
against the evidence of the defence.
[83] However, in PP v Salamah bte Abdullah [1947] MLJ 178, and Mohd
Taufik Peter bin Abdullah Iwn Pendakwa Raya [2019] 4 MLJ 542
(CA) held that it is permissible for the charge to be altered after the
close of the defence.
[84] Guided by both the authorities of Public Prosecutor v Joseph AK

Madang [2017] 6 MLJ 556 and PP v Soo Tai Leng [2005] 7 CLJ 218
35
which were cited by learned defence counsel where in both cases the
charge of murder was amended to one of culpable homicide not
amounting to murder, and acting pursuant to section 158 (1) of the
Criminal Procedure Code, I ordered that the original charge be
amended to one under section 304 (a) of the Penal Code as follows:
“Bahawa kamu bersama-sama diantara 17 Mei 2018 jam lebih

kurang 7.00 petang hingga 18 Mei 2018 jam lebih kurang 7.00 pagi,
di tepi sungai berhampiran Kampung Baru Chenderong, Jalan
Tanjung Tualang, dalam Daerah Batu Gajah, Negeri Perak Darul
Ridzuan, dalam mencapai niat bersama telah membunuh Chung
Thian Keong KP No. 640304-08-5329 dan oleh yang demikian, kamu
telah melakukan satu kesalahan yang boleh dihukum di bawah
seksyen 304 (a) Kanun Keseksaan dan dibaca bersama seksyen 34
Kanun yang sama. ”
[85] Acting pursuant to section 158 (2) of the CPC, the altered charge
was read and explained to each of the accused who were called to
plead to the amended charge.
[86] They each pleaded not guilty and in accord with section 159 of the
CPC, each of the accused were asked to state whether they were
ready to be tried on the altered charge, and each replied that they
were.
[87] Acting pursuant to section 162 of the CPC, I then asked the
prosecution and the accused whether they wish to recall or re-
summon any witness and to adduce any further evidence for the
amended charge.
[88] Both the prosecution and the defence submitted that they were
content to rely upon the evidence already adduced and the
submissions presented. The learned DPP added that the prosecution
also relied upon the evidence elicited during the course of cross-
examination of the accused during the defence case.
36
[89] In Yap You Jee v PP & Other Appeals [2015] 7 CLJ 897 (CA) at para
[33], Tengku Maimun Tuan Mat JCA (now CJ) held that if the
amendments do not introduce a different case against the accused
and in line with the evidence before the court, no prejudice will be
occasioned to the accused.
[90] In fact, in the instant case, the amendment will see the severity of the
charge being reduced from one of murder under section 302 to one
of culpable homicide not amounting to murder under section 304 of
the Penal Code, and if the same facts will be relied upon, it is not
prejudicial to the accused, see Yap You Jee v PP [2015] 7 CLJ 897
(CA).
[91] I now proceed to evaluate the defence case.
[92] The defence admits that the deceased was Chung Thian Keong and
that he died due to bodily injuries suffered by him (Encl 341 p 8).
[93] However, the defence (Encl 341 p 8) deny that:
i) the bodily injuries were inflicted by any of the accused; and
ii) the death was caused with the common intention of [all] of the
accused.
[94] Reliance was placed by the defence upon the following nine grounds:
i) the confirmation by SP8 that Chung had fallen into the stream;
ii) that SP11’s evidence that the injury to the deceased’s head that
led to his death was probably caused by a fall;
iii) SP15 saw that the five accused crossed the stream without
carrying anything;
iv) no other act was carried out by any of the accused save for
OKT2 who had used his hand to slap Chung and this was
confirmed by SP15;
37
v) Chung was a drug addict who had gone to the scene to deal in
drugs with SP15 and SP16 and this was confirmed by SP15, SP
16 as well as the Investigating Officer (SP19);
vi) there is no evidence and no one know what happened to Chung

whilst he was on his way from the scene to SP15’s house, a
journey of 10 to 15 minutes by foot;
vii) no evidence was led on what happened to Chung in his journey

home to Batu Gajah riding pillion on SP16’s motorcycle;
viii) the injuries suffered by Chung were not fatal and he could have
been saved if he had been sent earlier to the hospital to receive
treatment according to SP11;
ix) the death of Chung was due to the negligence of his family
members and his neighbours namely SP4, SP8, SP9 and SP10
in failing to take Chung to the hospital on the night of
17/08/2018 (Encl 341 p 13 para ix) (sic) after realising that
Chung was unconscious but still breathing.
[95] The nine grounds can be distilled into three as follows:
i) the death of Chung was due to a fall and not due to bodily
injuries inflicted upon him by any of the deceased;
ii) there is no direct evidence to point to any of the accused

having caused any bodily injury upon Chung save for OKT2
who had given him a light slap; and
iii) there is a gap between Chung leaving the scene and him dying
which in any event could have been avoided if early medical
intervention had been sought for him.
[96] The first accused, Jaya Ganesh a/l Jayabalan (OKT1) was called as
the first witness (SD1). He said he received a telephone call from
Kartik (OKT2) on 17 May 2018 to go to the scene (P6 (1)) which is
38
next to a cow shed. He was told by Kartik that he, Kartik (OKT2)
was with Arjun (OKT3), Sathis (OKT4) and Sivabalan (OKT5). He
identified all the 4 other accused who were in the dock.
[97] He admitted that he came from the direction of Chenderong.
[98] Thus, SD1 (OKT1) admitted he was at that scene on 17 May 2018.
[99] He was shown the photographs (exhibit P5 (7) & (8)) and identified
the deceased as the Chinese man who came to the scene and whom he
said he saw fell into the river.
[100] He also said that the two Chinese men who were at the scene were
the two who came to Court to testify (SP15 and SP16).
[101] The second accused (OKT2) was the second defence witness (SD2)
and he also admitted being at the scene on 17 May 2018.
[102] He (OKT2) identified the deceased, when shown the photo of the
deceased in P5 (7 & 8).
[103] He (OKT2) admitted giving the victim a slap on the left side of the
deceased’s face but said that it was a soft (“perlahan”) slap.
[104] OKT3 (SD3) admitted being at the scene with the other 4 accused
save that OKT1 came later on 17 May 2018.
[105] On 26 July 2022 (line 1129) whilst giving testimony, OKT3 said that
it was “Sathis (OKT4) who said “eh, tengok ke sana Cina itu sudah
jatuh ke dalam sungai".
[106] OKT3 said he goes to the river from time to time to bathe near the
bridge. At the bridge area, there used to be a wooden bridge but it is
spoilt and there are rocks in the river, a circular sarung in there
called “culvert’ which is normally used for making drains. Although
there are wood, rocks and culverts there, he bathes a bit further from
the bridge which he says is nicer.
39
[107] SD3(OKT3) admitted going together with the 4 other accused i.e. a
group of 5 to where the victim was with OKT2. He admitted that the
deceased who was thin and short posed no danger to them.
[108] OKT4 (SD4) admitted being at the scene as shown in the

photographs in P6 (1-29). He said he saw the one who was slapped
by Kartik (SD2) falling into the river whilst trying to cross the
bridge and was trying to get onto the land.
[109] To a question posed by the Court, OKT4 (SD4) said that a person on
a motorcycle cannot cross the bridge. This would lead to the
inference that the deceased was not on his motorcycle when he
crossed the bridge. This is consistent with the photographs of the
motorcycle which did not show any signs of it having fallen into
river, see P6 (10), (13), (23) to (27) as well as the pieces of the
motorcycle P6 (14) and P6 (15) and in particular the keys in P6 (12)
which all do not have any signs that it has fallen into the river unlike
the slippers in P6 (7) to (9)).
[110] OKT4 (SD4) admitted all 4 of them went to where Kartik (OKT2)
was with Chung after OKT2 was seen hitting Chung.
[111] 0KT4 (SD4) said none of them went to assist Chung when he fell
into the river because after he told his friends, the Chinese man did
get up from the river and walked away and that is why he (SD4) did
not go to help.
[112] SD4 identified Chung in photos P5 (7 & 8) which show the photos of
Chung as the one who rode a motorcycle, who was with SD2 and
who fell into the river.
[113] SD4 agreed that the victim was small sized.
[114] SD5 admitted being at the scene as per the [amended] charge.
[115] SD5 identified Chung as the Chinese man at the scene from the
photos in P5 (7 & 8).
40
[116] However, all the five accused denied that they have assaulted Chung.
Instead, save for OKT2 admitting having given what he described as
a light slap to the left side of the Chung, their story is mutually
corroborative in that after OKT2 was seen slapping Chung, the other
four accused went over the to where OKT2 and Chung were to take
OKT2 back. All denied having hit, punched or kicked Chung.
Court’s analysis of the three main grounds relied upon by the defence
[117] I will deal with the three main grounds but in no particular order as
they are inter-twined.
[118] Before that, I agree with the defence that the yellow helmet P19 l(2)
seized on the direction of OKT4, and Vivo handphone (P45) seized
from OKT1 and the SD/sim card (P46) seized from OKT1 ’s wallet,
do not assist the prosecution to link any of the accused with the
charge levied against them. SP15’s evidence was that the other
accused went bare handed (“tangan kosong”) to where OKT2 was
with Chung. See Abdullah bin Saad v PP [1956] 22 MLJ 92 (CA) on
the need to establish a link to connect the item of jewellery of the
deceased found on the accused with the deceased it being uncertain
whether this piece of jewellery was on the deceased on the day of his
death.
[119] All the 4 other accused said that Kartik (OKT2) had gone to confront
the two Chinese men (SP15 and SP16) who were there first and later
that Chung came later. Such confrontation in what is a public place,
would lead to the inference that he claimed territorial rights on who
can come to the area.
[120] OKT2 took it one step further by asking the victim to leave the area
and when the victim remonstrated, OKT2 slapped the deceased, a
fact he admitted. After slapping Chung, OKT2 was seen pulling
Chung down from his motorcycle (NE p 210 line 6227). This was
seen by OKT 1 who told the other 3 accused (OKT 3, OKT 4 and
41
OKT 5). The inference to be drawn is that OKT2 is prepared to resort

to violence to defend his turf.
[121] Although OKT2 said that he gave Chung a soft slap, the force
exerted upon the deceased left side of the face must have been very
forceful. This would be the logical inference from SP11’s testimony
that the deceased left side of the face was swollen, caused by a force
strong enough to occasion the brain to rock and hit the right side of
the deceased head, see P8 (45) causing heavy bleeding.
[122] Therefore, if OKT2’s slap was a soft slap, the logical inference is
that one other or more of the other accused would have inflicted the
serious bodily injury to Chung's head. However, it is an established
fact and admitted by the accused that all of them were with Chung at
that point in time and in my considered view given the multiple
injuries suffered by Chung including the multiple broken ribs, they
must have all rained blows on Chung.
[123] Contrary to the defence’s assertion that SPH’s evidence supports that
the injuries were probably caused by a fall, SP11 was categorical
that the injuries to Chung’s head could only have occurred as a result
of a fall only if he had fallen head in. And, SP11 discounted this
theory because of the other injuries suffered by Chung and in
particular his multiple broken ribs with no discernible injuries to his
left elbow and arm and the injuries found on the [back] of Chung’s
hand (NE p 137, 140 and 142).
[124] SP11’s evidence bears repetition:
“J: Berdasarkan pemeriksaan dada, ada kepatahan rusuk tulang

rusuk kanan 4,5 tulang rusuk kiri 7. Untuk jatuh amat sukar untuk
sebabkan kepatahan kepada kedua-dua belah. Jika jatuh sahaja tidak
boleh sebabkan kepatahan sedemikian. ”
[125] The defence pointed out that there were no defensive wounds on
Chung. In my view, this is inconclusive that there was no assault on
42
him because with five accused, it is more probable that he was

overwhelmed without the opportunity of defending himself.
[126] Although the narration of events by the five accused are mutually
corroborative in that they had gone over to take OKT2 back over the
river without assaulting Chung, I find that:
a) The act or acts leading to the death of the deceased took place
between 17 and 18 May 2018. The accused were arrested on 18
May 2018 (P10) and have since been remanded.
b) They each testified that OKT2 had slapped the deceased, they
each gave a mutually corroborative testimony that they did not
hit the deceased and instead they went over to where OKT2 was
with the deceased to bring OKT2 back over the river.
c) From the Court records, commencing 3 September 2020, the

accused were all remanded in Taiping Prison were brought to
Court for all mentions and trial from the same prison i.e.
Taiping Prison.
d) The learned DPP pointed out that with the five accused having
been remanded at the same place for so long, they would have
the opportunity to discuss and ensure that they make up a
consistent storyline.
e) Section 114 of the Evidence Act 1950 provide the following

logical and instructive direction:
“The court may presume the existence of any fact which it

thinks likely to have happened, regard being had to the
common course of natural events, human conduct, and public
and private business, in their relation to the facts of the
particular case.
ILLUSTRATIONS
43
The court may presume:-
(a) ……
(b) that an accomplice is unworthy of credit unless he is

corroborated in material particular;
But the court shall also have regard to such facts as the
following, in considering whether the maxims do or do not
apply to the particular case before it:
(iii) as to illustration (b) - a crime is committed by several

persons. A, B and C, three of the criminals, are captured on
the spot and kept apart from each other. Each gives an
account of the crime implicating D, and the accounts
corroborate each other in such a manner as to render previous
concert highly improbable.’’
f) In this case, all the five accused were remanded in the same
prison and by reason of which I would not give much weight
to their mutually corroborative testimonies;
g) because their versions are too consistent with no discrepancies,

a fortiori, it can be suggested that they have concocted their
accounts of what had happened, as observed by Raja Azlan
Shah FJ in PP v Datuk Haji Harun Bin Haji Idris (No.2) [1977]
1 MLJ 15 who said:
“I shall be almost inclined to think that if there are no

discrepancies, it might be suggested that they have concocted
their accounts of what has happened or what had been said
because their versions are too consistent.”
h) Further, OKT2 is a young man compared to the small sized

Chung and there was no evidence led at all that Chung posed
any threat to OKT2 who was seen to have slapped Chung that
would require all the four other accused to risk running across
44
a rickety bridge over the stream to where OKT2 was; and
i) If their intention was to just escort OKT2 back to where they

were, there was no necessity to surround Chung when they
could have just asked OKT2 to come away.
[127] I find that there is no reasonable doubt that the five accused had with
common intention commencing with OKT2 directing SP15 to call
Chung to the scene (NE p 224 line 6657 to 6661) OKT2 slapping him
and joined by the other four accused to jointly assault him causing
Chung to suffer the injuries that led to his death.
[128] In the instant case, SP11 under cross-examination made it clear that
the injury to the head if left untreated will lead to prolonged
bleeding and loss of life. The evidence (NE p 141 line 4186) is as
follows:
"S: Kecederaan di bahagian kepala - bukan kecederaan

menyebabkan ia fatal tapi disebabkan si mati biar dan pendarahan
lama menyebabkan ia fatal. Bermaksud jika rawatan diberi ia tidak
akan menjadi fatal?
J: Ya.”
[129] However, as pointed out above, it is specifically provided in

Explanation 2 to Section 299 of the Penal Code that where death is
caused by bodily injury, the person who causes such bodily injury
shall be deemed to have caused the death, although by resorting to
proper remedies and skilful treatment the death might have been
prevented.
[130] The evidence taken together lead me to find that all the accused had
the intention to inflict bodily harm on Chung and in the course of
inflicting bodily injuries, Chung’s head was subjected to a blow or
several blows which led to his death.
[131] This is supported by SPH’s evidence who said the following under
45
cross-examination:
“S; Keadaan kes ini, kecederaan pada lutut dll kesan beliau jatuh
dan tiada kesan pertahankan diri. Adakah possibility kecederaan-
kecederaan dialami si mati disebabkan si mati jatuh atau terhentak
dengan sesuatu objek?
J: Saya tidak tahu insiden bagaimana, jika jatuh sekali sahaja tak
mungkin kecederaan sebegini. Ada beberapa rentetan episode.
Untuk kecederaan 1 (kepala) – mungkin jatuh atau kemungkinan-
kemungkinan yang saya nyatakan sebelum ini. ”
[132] Taking SP11’s evidence as a whole, I am satisfied that unless there is

only one injury to the head with corresponding injury to his left
elbow and arm, a doubt would arise that his bodily injury to his
head could be due to a fall. However, there were no corresponding
injuries to his left elbow and arm. Instead, the evidence shows
Chung to have suffered multiple injuries (P24) which are not
consistent with a fall such as bleeding at the right side of his chest
measuring 3 x 0.5 cm, and broken right front 4 th and 5 th ribs and
broken rear left 7 th rib.
[133] In my considered view, it is beyond any reasonable doubt that Chung

was assaulted with multiple bodily injuries inflicted upon him
including hitting his head and his body causing him to fall and
suffering further injuries caused by his fall. This was in fact put to
SP11 under cross-examination (NE p 142 line 4213) who answered
as follows:
“S: Pendapat awak juga dalam bahagian tanda-tanda kecederaan

ada campuran tanda pukul dan jatuh, berdasarkan pendapat puan?
J: Ya dan berdasarkan kedecederaan no. 7 (kelompok Iuka-Iuka lecet
linear pada sisi dalam betis kanan merangkumi kawasan seluas 19 x
7.5 sm, bersaiz di antara 1 x 0.1 sm hingga 4 x 0.1 sm, see P24).
S: Secara konklusif tidak boleh katakan disebabkan pukulan?
46
J: Ya tidak secara konklusif. ’’
[134] Having given a maximum evaluation to all the evidence, in my view,

SP11 is to be taken to have said that not all the injuries are
conclusively due to beatings with reference to the scratch marks.
However, she had opined that the cause of death of Chung is that of
the injury to his head due to blunt trauma (P24), and from the
evidence led, this is not a scratch injury.
[135] When the evidence in totality is given maximum evaluation, the

prosecution case is not based purely upon circumstantial evidence.
Instead, there was direct evidence given by both SP15 (NE p 209 line
6216, p212 line 6283) and SP16 that the five accused were at the
scene. There was also direct evidence given by SP15 that he was
asked by OKT2 to call Chung to the scene and when Chung arrived,
he saw OKT2 running to Chung and that he saw OKT2 slapping
Chung and pulling him down from his motorcycle before the other
four accused ran over to join OKT2 and surrounded Chung.
[136] In the circumstances, the caution contained in the following cases

when evaluating purely circumstantial evidence would not be strictly
applicable:
i) Magendran A/L Mohan v PP [2011] 6 MLJ 1; [2011] 1 CLJ

805 (FC);
ii) Chan Chwen Kong v Public Prosecutor [1962] 1 MLJ 307;

[1961] 1 LNS 22 (CA);
iii) Karam Singh v Public Prosecutor [1967] 2 MLJ 25; [1967] 1

LNS 65 (FC);
iv) Chang Kim Siong v PP [1968] 1 MLJ 36; [1967] 1 LNS 18 (FC
Borneo); and
v) Jayaraman & Ors v PP [1982] 2 MLJ 273 by Syed Othman

(FC).
47
[137] The defence had highlighted (Encl 341 p 19 para (5)) that during
cross-examination of the accused, the learned DPP had presented a
version which was not put up during the prosecution case. This
according learned counsel for the defence, gives rise to two versions
of the incident and by reason of which the benefit of any conflict
ought to be given to the defence. Reliance was placed on the case of
Muhammad Hafiz Mukrimin Abdulkeh Iwn PP & Satu Lagi Rayuan
[2022] 4 CLJ 329 (CA) at para [42] dan [45], where it was held that
the shifting of position by the prosecution at the prosecution case
and during the defence case would cause a doubt to arise and that
doubt ought to be given to accused.
[138] In Muhammad Hafiz Mukrimin Abdulkeh (supra) the change in the

prosecution position was on the role played by SD2 in a drug
trafficking case. During the prosecution stage it was put forth that
the arrest of the appellant was with the active assistance of SP5 and
SD2 as supported by documentary evidence in exhibits D74 and D75,
but at the defence stage, the prosecution cross-examined SD2 by
putting to him that his role was limited to only that of giving
information that there was drug dealing in Tesco Taman Wahyu,
leading the Court of Appeal to hold that this led to a doubt having
arisen what were the facts that led to the arrest of the appellant.
[139] In the instant case, how all the accused were arrested were [not] in
issue and more importantly, I agree with the learned DPP, that the
case at both the prosecution case and at the defence case remained
the same which is that, Chung was beaten by the accused in concert.
[140] On the time lapse raising a gap between the incident at the scene by
the river until Chung went to SP15’s home and sent home by SP16,
and that from the evidence of SP4 that Chung was found to have
drugs in him when brought in dead to the hospital, I have no reason
to depart from my findings during the prosecution stage that
anything is possible (see Miller v. Minister of Pensions (supra)) but
in my mind these two issues are not sufficient to raise a reasonable
48
doubt in my mind on the guilt of the accused to the charge against

them premised upon the test for reasonable doubt laid down in the
following cases cited by the defence:
i) Public Prosecutor v Mohd Amin bin Mohd Razali & Ors [2002]
5 MLJ 406 (SC);
ii) Mohamad Radhi Yaacob v Public Prosecutor [1991] 1 CLJ

(Rep) 311 (SC);
iii) Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16 (HC);
iv) Sabarudin Nonv PP & Other Appeals [2005] 1 CLJ 466 (CA);
v) Public Prosecutor v Datuk Haji Harun Bin Haji Idris & Ors
[No.2][1977] 1 MLJ 180 (HC);
vi) PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 (CA); and
vii) Mat v Public Prosecutor [1963] 1 MLJ 263; [1963] 1 LNS 82

(HC).
[141] Applying the test laid down by the Federal Court in Farose Bin
Tamure Mohamad Khan v Public Prosecutor And Other Appeals
(supra), I find that it is beyond reasonable doubt each and every one
of the accused had a nexus to a pre-arranged plan to have Chung
brought to the scene to have him beaten up, and to instil into him the
fear that he will not dare to ever step foot on their turf to peddle
drugs. However, the beating was so severe resulting in extensive
injuries including three broken ribs and trauma to the skull as was
likely to cause death, as can be seen in the autopsy report, that the
bodily injuries in particular that to his head, caused Chung to bleed
to death.
[142] In this regard, I am guided by the approach on the application of the

two sections 299 and 300 of the Penal Code where Zulkefli
Makinudin CJ (Malaya) delivering judgment for the Federal Court in
49
Cheong Kam Kuen v PP [2012] 8 CLJ 537 at para [19], [20] and [24]
said:
“[19] On the correct approach to the application of the two ss. 299
and 300 of the Penal Code we would endorse the views expressed by
Raja Azlan Shah FJ (as his Royal Highness then was) in the case of
Tham Kai Yau & Ors. v. PP [1976] 1 LNS 159; [1977] 1 MLJ 174 at
p. 176 as follows:
‘Section 299 clearly defines the offence of culpable homicide.

Culpable homicide may not amount to murder (a) where the
evidence is sufficient to constitute murder, but one or more of
the exceptions to s. 300, Penal Code apply, and (b) where the
necessary degree of mens rea specified in s. 299 is present, but
not the special degrees of mens rea referred to in s. 300,
Penal Code. We would like in this connection to express the
need to bear in mind that all cases falling within s. 300, Penal
Code must necessarily fall within s. 299, but all cases falling
within s. 299 do not necessarily fall within s. 300. The first
part of s. 304, Penal Code covers cases which by reason of the
exceptions are taken out of the purview of s. 300, cis. (1), (2)
and (3) but otherwise would fall within it and also cases which
fall within the second part of s. 299, but not within s. 300, cls.
(2) and (3). The second part of s. 304, Penal Code covers cases
falling within the third part of s. 299 not falling within s. 300,
clause (4).’
[20] In the present case, it is our view based on the nature of the
injuries sustained by the deceased, there was evidence of an
intention on the part of the appellant to cause bodily injury to the
deceased. However, we do not agree with the finding of the learned
trial judge that based on the nature and number of injuries, the
appellant had the intention to cause death to the deceased. We
noted that both the learned trial judge and the Court of Appeal in
their decision did not address themselves on the fine distinction
50
between s. 299 and s. 300 of the Penal Code before coming to a

correct conclusion.
[24] In view of the nature of the medical evidence given by SP10, the
pathologist as earlier highlighted, it is our considered view that the
present case would fall within the second part of s. 299 of the Penal
Code. It is our judgment that this is a case which can reasonably be
brought within the lesser offence of culpable homicide not
amounting to murder, falling within the first part of s. 304 (s.
304(a)) of the Penal Code. ”
[143] Similarly, in my considered view, the instant case would fall within
the second limb of section 299 of the Penal Code and is to be
brought within the lesser offence of culpable homicide not
amounting to murder falling within the first limb of section 304 (a)
of the Penal Code.
Conclusion on the amended charge
[144] In accord with section 182A of the Criminal Procedure Code, this
Court have considered all the evidence adduced at the end of the trial
and after having done so and after taking into account the
submissions presented by the learned DPP and learned counsel for all
the accused, I find that the prosecution has proved that all the
accused had committed culpable homicide in furtherance of the
common intention of all to do so as per the amended charge, and this
Court finds all the accused guilty and hereby convict them of the
same.
Mitigation
[145] In mitigation, learned counsel for the accused submitted that:
i) all the accused were first offenders;
ii) they are young aged between 19 to 24 years of age at the time
of the incident. They all come from impoverished backgrounds
51
with all save for the fourth accused (Sathis) earning below the
national poverty level. The father of the first accused (Jaya
Ganesh) and fifth accused, Sivabalan had died and the mothers
of all of the accused have various medical ailments such as
cancer, diabetes, high blood pressure and heart disease;
iii) all the accused were caught on 18 May 2018;
iv) from the evidence of the prosecution witnesses, no dangerous

weapons were used;
v) there was no premeditation to injure the victim and the only

injury was to the head of the deceased;
vi) the deceased was carrying out an illegal activity in the

“accused’s area.”
[146] Reliance was placed upon the case of Christopher Anak Tanie v PP
[2016] 1 LNS 1146 (CA) where following a fight between the
accused and his uncle (the deceased), the latter died of head injuries
due to blunt force trauma in the form of punches and kicks and that it
was possible that the injuries to the head of the deceased could have
been sustained when the deceased fell on a hard and blunt surface
such as the floor.
[147] In Christopher Anak Tanie (supra), the Court of Appeal sentenced

the accused to 12 years imprisonment after taking into account the
following:
(i) “the fight was initiated by the deceased's conduct in illegally

felling and selling the timber from the appellant's family NCR
lands;
(ii) there was no premeditation plan on the part of the appellant to

cause the death of the deceased;
(iii) there was no dangerous weapon used by the appellant;
52
(iv) the deceased was only kicked and punched by the appellant;
(v) the deceased did not suffer any multiple injuries;
(vi) there was no conclusive evidence that the appellant had struck
the head of the deceased;
(vii) the possibility that the injuries were sustained because of a fall
(after the deceased was kicked and punched by the appellant)
had not been ruled out; and
(viii) the appellant did not act in a violent, cruel or brutal manner or
without conscience.”
[148] Learned counsel for the accused added that there were
representations made to the Public Prosecutor to reduce the charge
but they were not allowed. Instead, the Court itself after seeing the
evidence had reduced the charge. And, if the prosecution had
accepted the representations and reduced the charge, there would
have been a saving of time and the time taken for the trial ought not
to be held against the accused.
[149] The learned DPP responded by pointing out the five accused were
originally charged under for murder under section 302 of the Penal
Code but the charge was reduced by this Honourable Court to one
under section 304 (a) Penal Code. He called upon the Court to take
into account the following aggravating factors:
i) public interest;
ii) the injuries suffered by the accused;
iii) all the accused were young and healthy and caused injuries to
the deceased;
iv) this Court has the responsibility to look after the interest of
public and a heavy sentence ought to be imposed to send a
53
message that such an offence is taken seriously.
[150] The learned DPP then very helpfully tendered a chart which
contained a summary of cases showing the trend of sentencing for an
offence under section 304 (a) Penal Code is between 15 to 20 years
of imprisonment. This chart which I have edited is reproduced
below:
E-Sentencing Trend
Section 304(a) Penal Code
Case Facts Sentence Date of

Offence
Court of - High Court (“HC”) 20 years 24.06.2013

Appeal convicted the Appellant imprisonm
(“COA”) under s 302 of the Penal ent
Code (“PC”)
Chiam
Nguang - COA reduced charge to
Huat v PP s 304(a) PC.
2018 1
LNS 642
COA - Deceased is the

14.05.2018 Appellant’s wife. Both
have 2 children There
were 3 police reports
lodged by the deceased
before the incident
regarding the
Appellant’s abusive
behaviour.
- SP1 (the son) saw the
54
Appellant splashed
petrol on the deceased
and the ignition was
caused by the
appellant’s cigarette.
- The appellant brought

the deceased to the
hospital and the
deceased died after a
month later.
- Cause of death was

sepsis with multiorgan
failure due to severe
burns.
Court of - PP’s appeal against the HC- 15 24.04.2010

Appeal reduction from s 302PC years
to s 304(a) PC by HC at imprisonm
PP v Mohd
end of defence’s case. ent
Rizal bin
Esa - Deceased is the
Respondent’s wife.
Rayuan
Jenayah - Deceased who is afraid
No: J-05- of getting beaten by the
189- Respondent called SP4
07/2012 (adik angkat) at 12 am
to accompany her home.
COA
- The Respondent reached
06.11.2013
home at 1.00 am with
his 3 children. He then
chased out SP4 from his
house. The Respondent
55
was furious when he

saw the deceased wore
singlet and short.
- SP3 (Respondent’s son)

saw the Respondent
went to the kitchen and
took a knife before
stabbing the deceased
several times.
- There were 12 marks of

injuries on the
deceased’s body and the
cause of death was stab
wounds to the heart.
- HC ruled out there was

sudden and grave
provocation.
- COA affirmed the HC

decision
Federal - Deceased is the 22 Years 10.3.2013

Court Appellant’s father. imprisonm
ent
Arumugam - Deceased and Appellant
A/L were drinking before
Ramadas v the fight. There was a
PP sudden fight. Appellant
(CRIMINA hit the deceased with a
L APPEAL piece of wood. Facial
NO: 05- injuries. Fractured
252- maxilla and nasal
11/2015 septum. Cause of death:
56
(N) Inhalation of blood

from facial injuries.
- PW 6 (grandmother),
PW 7 (sister in law),
PW 10 (cousin)
confirmed the deceased
and the Appellant were
on good terms, if not
for the substance taken.
- HC & COA convicted

the accused under s.302
PC. However in FC,
the accused’s
representation was
accepted and reduced
to s.304(a) PC.
Court of - Respondent was 15 years 16.7.2008

Appeal acquitted at the end of imprisonm
defence for an offence ent
PP v
under s.304(a) PC.
Shuhaimi
bin Saad - R and deceased were
[2013] 2 drunk.
CLJ 1069
- They started quarrelling
which then caused a
sudden fight between
them. R whacked
deceased’s head using
‘kayu, bata dan kapak’.
- The defence raised was

that of private defence.
57
- However, there were 48

injuries on the
deceased’s head
including defensive
injuries. Appeal
allowed and R
convicted.
Federal - HC convicted under 18 years 5.9.2006

Court s.302 PC and affirmed imprisonm (pre-
by COA. ent amendment
Rosli bin
where
Hamid & - FC - allowed the appeal
maximum
11g v PP and reduced to s.304(a)
sentence
05-47- PC.
was 20
04/2013(N
- The deceased was years but
) & 05-48-
beaten for almost 2 now it is
04/2013(N
hours for molesting the 30 years)
) FC
Appellants’ sister.
19.9.2013
- Injuries sustained:
cerebral concussion,
lateral lacerations on
both ears, laceration
wound left frontal scalp
& lung contusion.
- All injuries had caused

brain contusion and
haemorrhage.
- The deceased died 6

days later (11.9.2006).
58
Federal - HC convicted under 18 years 10.6.2013

Court s.302 PC and affirmed imprisonm
by COA ent
Mohd
Faizal bin - FC - allowed the appeal
Dzulkifli v and reduced to s. 304(a)
PP 05-223- PC
09/2016
- Fight occurred at three
28.9.2017 different places
- No weapon was used
- The accused had helped

to bring the deceased to
the hospital
Federal - Originally 3 charges S304(a) 31.03.2012

Court under s.302 PC & 2 PC: 15
charges under s. 307 PC years of
Murugan
were framed against the imprisonm
a/l Krishan
Accused ent to run
v PP
concurrent
- But the charges under s.
No. 05- ly from
302 were reduced to
286- date of
s.304(a) at the end of
11/2017 arrest
defence by the HC.
Sentenced to 15 years S307: 15
of imprisonment to run years of
concurrently from date imprisonm
of arrest (31.3.2012) ent
- 15 years of
imprisonment for
charge under s307
(appellant’s counsel
59
withdrew appeal)
Facts:
- A prayer ritual known

as ‘Pooja’ was
performed by the
Accused at SP30’s
home of the surviving
family members.
- On the 3 rd day ‘Pooja’,

SP30 & his family
members, Manivannam,
Rajeswary, Sakunthala
& Malathy were given a
single glass of ‘air
thirtam’, told the
Accused.
- ‘Air thirtam’ was

originally put in a
tumbler brought by the
Accused while he was
conducting the ‘Pooja’
- After 5 mins, SP30 felt

dizzy, had blurry vision
& stiff yet, can still
hear.
- Only Malathy survived

and SP30
- The cause of death of

all the 3 deceased was
60
‘Paraquat’ poisoned.
- SP30 was examined &

the alleged effect of the
paraquat poison was not
found by the doctor
- FC affirmed HC &
COA’s decision.
Court of - Originally charged The 22.8.2010

under s.302 but the conviction
Appeal
charge was reduced to and
Deepanraj s.304(a) PC at the end sentence
a/l of defence by the HC. affirmed
Subramani He was sentenced to 20 by the
am v PP J- years of imprisonment COA.
05-273- from the date of arrest
20 years
11/2012 (22.8.2010)
imprisonm
COA - A appealed against the ent
conviction and sentence
7.10.13 but was dismissed by
the COA
- There was a sudden

fight between A and
victim and suddenly A
stabbed victim’s body.
- Cause of the death was

stabbed wound to the
heart.
- Knife was recovered at

the scene.
61
Court of - 1 st charge originally 20 years 15.9.2008

Appeal under s.302 PC imprisonm
ent from
Rikky - 2 nd charge under s.324
date of
Purba PC (voluntarily causing
arrest
(Idn) v PP hurt with 2 dangerous
(15.9.2009
Q-05-262- weapons knifes)
)
09- 2011
- HC convicted on both
COA charges. 1 st charge death
penalty; and 2 n d charge -
25.9.2013
6 months imprisonment
- COA reduced to
s.304(a) PC for 1 st
charge ; affirmed
conviction and sentence
for 2 nd charge.
- The deceased was

stabbed when he was
taking a bath with his
wife. Prior to that, there
was a quarrel between
the Appellant and the
deceased.
- The victim in the 2 nd

charge was the
deceased’s wife.
- External examination
revealed that 28 wounds
were caused by a sharp
object. Fatal injury was
62
a stab wound that

pierced the heart.
- Weapons used were 2

knifes and a parang.
Court of - Original charge was an 20 years 8.3.2008-

Appeal offence under s.302 PC. imprisonm 10.3.2008
ent
PP v - The HC reduced it to
Shahril bin s.304(a) PC at the end
Razali B- of defence case and
05-329- sentenced him to 20
2012 years imprisonment
from the date of arrest.
COA
- The COA affirmed the
20.9.2013
decision of the HC and
an appeal was filed to
FC.
- The Appellant and

deceased were- lovers.
Appellant had strangled
the deceased for
spurning his love and
his marriage proposal.
There was a quarrel
prior to that.

asphyxia due to
manual strangulation.
Federal - The A originally 1 st charge:

Court charged under 1 st 25 years
63
charge: S302 PC + S34 imprisonm

Iskandar
& 2 n d : S376 PC ent
Danial bin
Md Yunos - Victim found in palm 2 nd charge
& 1 lagi v oil plantation, cause of 10 years
PP 05-4- death “blunt force imprisonm
01/2017 trauma to the neck ent
(J), 05-5 with inhalational
01/2017 injury”
(J) & 05-
- The Appellants slashed
6-01/2017
the victim’s neck,
(J)
stepped on his head &
FC chopped her head off
18.06.2019 - HC convicted both for

the S302 charge &
sentenced 1 st A to 10
years imprisonment for
the S376 charge
- COA affirmed HC’s

decision
- FC reduced S302 to
S304(a) & sentenced
the Appellants to 25
years imprisonment
- (The sentence for 1 st A

for S304(a)& S376 to
run concurrently.)
Federal - S304(a) PC COA: 11.5.2011

Court
- The A slashed the OKT1 - 15
Muhamad deceased’s leg using years
64
Saufi Bin kwantow imprisonm

Ismail v ent
PP 05-7-
incised wound to the OKT2 - 20
01/2017(Q
left lower limb & years
)
severe bleeding arising imprisonm
FC KK from the wound ent
24.07.2019 - COA affirmed sentences FC:

of 15 years
OKT2 - 18
imprisonment against
years
OKT/A1 (OKT/A1 did
imprisonm
not appeal to FC)
ent
- COA sentenced
OKT/A2 to 20 years
imprisonment
- On appeal by OKT/A2
to the FC, FC reduced
20 to 18 years
imprisonment
Court of - Original charge under 18 years 24.08.2016

S302 PC imprisonm
Appeal
ent from
- The A took the
Nasir bin date of
deceased out before she
Ramli v arrest
was found semi-
PP Q-
conscious in the car
05M-244-
when the deceased were
04/2018
brought to his house
COA
- The A’s family
Kuching
members asked what
26.8.2019
happen to the deceased
65
but the A answered the

deceased fell down
from the car while the
car was moving
- The A’s father took the

deceased to the hospital
informing the hospital
staff that he found the
deceased at the roadside
before she was left
there.
- Initially, the A refused

to take the deceased to
the hospital.
- Cause of death based on

post mortem report :
head injury due to
blunt force trauma
- There were 2 previous

reports by the deceased
alleging beating &
criminal intimidation
linked to the A
- The line of defence’s

argument is that the
injuries were not
inflicted by him but the
deceased fell down
from the car during the
quarrel.
66
- COA reduced charge

under s 302 to S304(a)
PC & sentenced the A
to 18 years
imprisonment from date
of arrest
Court of - Original charge S302 1 st

PC Appellant:
Appeal
20 years
- Alternative charge was
Balan a/I 2 nd
offered at the end of
Subraman Appellant:
prosecution case under
iam & 18 years
S304(a) PC
Anor v PP
- Appellants pleaded
C-05(H)-
guilty to the alternative
242-
charge
04/2018
- HC: 20 years
COA
07.08.2019 1 st Accused
- HC: 18 years
2 nd Accused
- COA dismissed the

Appellants’ appeal
against sentence &
affirmed HC’s decision
Sentence
[151] After taking into account the pleas in mitigation and that for a
deterrent sentence, I sentenced each of the accused to 18 years of
67
imprisonment to commence from their date of arrest of 18 May 2018

when they were remanded since, after taking into account the
following:
i) each of the accused was a first time offender and this Court
hope that this will be the first and only offence ever to be
committed;
ii) their impoverished background;
iii) despite this Court having reduced the charge against them from
one under section 302 of the Penal Code to one under section
304 (a) of the Penal Code, they had not shown any remorse but
maintained their plea of not guilty and thus, their plea of
having made representations earlier is of little consequence;
iv) at the time of the incident, the five healthy and young men had
taken the law unto their own hands by ganging up on an older,
skinny and small sized man, and collectively given him a
beating for having the temerity to peddle drugs in “their area”;
v) the pathologist (SP11) had discounted that the trauma to the

head could have been caused by a fall;
vi) there were other injuries suffered by the deceased, including

three broken ribs, as a result of the beatings under the hands
and most probably the feet of the accused as can be seen by the
report of SP11 and which are reproduced hereunder:
“Tanda-tanda Kecederaan Luaran;
Dada
“Terdapat pendarahan pada lapisan lemak pada bahagian sisi

dada kanan berukuran 3 x 0.5 sm. Tulang rusuk kanan ke 4 dan
ke 5 patah pada bahagian hadapan manakala tulang rusuk kiri
ke 7 patah pada bahagian belakang.”;
68
vii) after giving Chung a beating they let Chung walk away injured
and undoubtedly in pain, without any assistance despite one of
them alerting the others that the deceased had in his
undoubtedly weak and painful condition stumbled into the river
whilst trying to cross the bridge and with Chung unable to ride
his motorcycle to get away and seek help but forced to walk to
SP15’s house which was more than one kilometre away in his
weakened state;
viii) therefore, unlike the situation in Christopher Anak Tanie

(supra), Chung did not initiate any fight, the beating he
suffered were severe, he suffered multiple injuries, the severe
injuries could not have just been due to a fall, and the five
accused had acted in a violent, cruel or brutal manner or
without conscience.
Dated: 21 JUNE 2023
(SU TIANG JOO)

Judicial Commissioner
High Court at Ipoh
Counsel:
For the prosecution - Saifulakmal Mod Said & D Sunita Kaur Jessy
For the defence - Charan Singh Kartar Singh & Noorfarihah Arshad; M/s
Nurul & Charan
Ipoh, Perak
[Notice: This Grounds of Decision is subject to official editorial revision]
69
Cases referred to:
Iskandar Zulkamain bin Zolkifly v. Public Prosecutor [2022] 2 MLJ 512;

[2022] 1 LNS 127
(1) Namasiyiam (2) Rajindran (3) Goh Chin Peng, And (4) Ng Ah Kiat v.
Public Prosecutor [1987] 2 MLJ 336
Abdullah bin Saad v. PP [1956] 22 MLJ 92 (CA)
Ahmad Norizan Mohamad v. PP [2017] 10 CLJ 599 (CA)
Balachandran A/L Selvaratnam v. PP [2005] 1 CLJ 85 (FC)
Chan Chwen Kong v. Public Prosecutor [1962] 1 MLJ 307; [1961] 1 LNS
22 (CA)
Chandmal & Anor v. State of Rajasthan AIR [1970] SC 917
Chang Kim Siong v. PP [1968] 1 MLJ 36; [1967] 1 LNS 18 (FC Borneo)
Cheong Kam Kuen v. PP [2012] 8 CLJ 537 (FC)
Christopher Anak Tanie v. PP [2016] 1 LNS 1146 (CA)
Dalip Bhagwan Singh v. Public Prosecutor [1997] 4 CLJ 645 (FC);

[1998] 1 MLJ 1 (FC)
Dato' Sri Mohd Najib Hj Abd Razak v. PP [2022] 1 CLJ 491
Dato’ Mokhtar bin Hashim & Anor v. Public Prosecutor [1983] 2 MLJ 232
Farose Bin Tamure Mohamad Khan v. Public Prosecutor And Other

Appeals [2016] 6 MLJ 277 (FC)
Ghambir v. State of Maharashtra AIR [1982] SC 1157
Hanumant Govind Nargundkar v. State of Madhya Pradesh AIR [1952] SC

343
70
Hari Ram v. State of Uttar Pradesh [2004] 8 SCC 146
Jayaraman & Ors v. PP [1982] 2 MLJ 273
Karam Singh v. Public Prosecutor [1967] 2 MLJ 25; [1967] 1 LNS 65

(FC)
Krishna Rao a/l Gurumurthi v. Public Prosecutor and another appeal

[2009] 3 MLJ 643
Kuli & Ors v. Emperor AIR [1930] Cal 442
Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734 (CA)
Magendran A/L Mohan v. PP [2011] 6 MLJ 1; [2011] 1 CLJ 805 (FC)
Manikumar Sinappan & Ors v. Public Prosecutor [2015] MLJU 1956;

[2016] 2 MLRA 1
Mat v. Public Prosecutor [1963] 1 MLJ 263; [1963] 1 LNS 82 (HC)
Megat Halim Megat Omar v. PP [2008] MLJU 647 (CA)
Miller v. Minister of Pensions [1947] 2 All ER 372
Mohamad Radhi Yaacob v. Public Prosecutor [1991] 1 CLJ (Rep) 311

(SC)
Mohd Faizul Md Saaid [2021] 1 LNS 652 (HC)
Mohd Taufik Peter bin Abdullah lwn. Pendakwa Raya [2019] 4 MLJ 542
(CA)
Muhammad Hafiz Mukrimin Abdulkeh lwn. PP & Satu Lagi Rayuan [2022]
4 CLJ 329 (CA)
Paiman Bin Doyo v. PP [1952] 18 MLJ 156
Pendakwa Raya v. Cho Sing Koo [2019] ML JU 659
71
Pie Bin Chin v. PP [1985] 234
PP v. Dato Seri Anwar Bin Ibrahim (No. 3) [1999] 2 MLJ 1
PP v. Datuk Haji Harun Bin Haji Idris (No.2) [1977] 1 MLJ 15
PP v. Lee Eng Kooi [1993] 2 MLJ 322 (HC)
PP v. Lin Lian Chen [1990] 1 CLJ Rep 285 (HC)
PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457 (CA)
PP v. Muh Pirman & 4 others [2017] 1 LNS 960 (HC)
PP v. Salamah bte Abdullah [1947] MLJ 178
PP v. Soo Tai Leng [2005] 7 CLJ 218
Public Prosecutor v. Joseph AK Madang [2017] 6 MLJ 556
Public Prosecutor v. Mohd Amin bin Mohd Razali & Ors [2002] 5 MLJ
406 (SC)
Public Prosecutor v. Saimin & Ors [1971] 1 LNS 115; [1971] 2 MLJ 16
Sabarudin bin Non & Ors v. Public Prosecutor [2005] 4 MLJ 37
Subramanian v. PP [1956] 1 MLJ 220 (PC)
Suresh v. State of Uttar Pradesh AIR [2001] SC 1344
Tang Kin Seng v. Public Prosecutor [1997] 1 SLR 46 (HC)
Yap You Jee v. PP & Other Appeals [2015] 7 CLJ 897 (CA)
Zulkiple Mohamad v. PP [2022] 1 CLJ 673
Legislation referred to:
Dangerous Drugs Act 1952
72
Poisons Act 1952
Evidence Act 1950, s. 114(i)(iii)
Criminal Procedure Code, ss. 158(1), (2), 159, 162, 180, 182A
Penal Code, ss. 34, 299, 300(c), 302, 304(a)
73

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[2023] 1 LNS 1166 Legal Network Series

IN THE HIGH COURT IN MALAYA AT IPOH (3)

1. JAYA GANESH JAYABALAN (NRIC NO.: 981210-08-7097)

2. KARTIK KRISHNAN CHANDRAN (NRIC NO.: 990703-10-6553)

3. ARJUN ARUL ANANTHAN (NRIC NO.:970610-08-5003)

4. SATHIS CHANDRAN (NRIC NO.:970610-08-5143)

5. SIVABALAN VEERAN (NRIC NO.: 990607-08-9239)

The original charge

[2] The charge in its original language reads as follows:

dihukum di bawah seksyen 302 Kanun Keseksaan dan dibaca bersama

The Prosecution’s case

SP1 Kpl Yahya Bin Mohamed First Information Report’s

SP4 Siti Hajar Aisah Binti Mohd Chemist Officer

SP6 Maya Santi Chung’s sister in law

SP7 Chung Teen Fook Chung’s brother (who

SP8 Ho Kok Choi Chung’s neighbour

SP9 Chung Swee Kok Chung’s sister

SP10 Chung Sooi Khuan Chung’s sister

SP12 Insp Siti Rabiah Binti Kassim Forensics Officer at the

SP13 Insp Kenneth Lee Han Xheau Raiding Officer

[4] The prosecution relied primarily on the evidence of:

i) Dr. Siti Zanariah Binti Md Naziri (SP11), a specialist forensic

i) death of the alleged victim;

iii) the action caused the death of the deceased with:

a) the intention of causing death, or

b) with the intention of causing bodily injury which, the

c) with the intention of causing bodily injury and the bodily

d) with the knowledge the act is so imminently dangerous

excuse for incurring the risk of causing such death or

Identity and death of the deceased

[6] The following witnesses testified as follows:

i) SP6, Maya Santi, the sister-in-law of the deceased who stayed

v) SP11, Dr. Siti Zanariah Binti Md Naziri, a forensic pathologist

[8] SP11, whose credentials and experience as a forensic pathologist

[11] SP11’s summary of findings is as follows:

i) there were signs of swelling and scrape marks on the head,

ii) there was swelling on the left side of the head;

iii) the skull was not cracked;

v) the bleeding occurred over a long period of time causing the

vi) the injury to the brain was caused by “coup” and

xi) no self-defence signs were detected on the deceased; and

xii) it was estimated that the deceased died within 6 to 12 hours

i) there was bleeding on the right side of the chest; and

[14] In her testimony, SP11 (NE p 138) said:

"J: Berdasarkan pemeriksaan dada, ada kepatahan rusuk - tulang

would not be reasonable to expect the members of the deceased

i) She received a sample of blood (marked F1 later tendered and

ii) She also received a sample of urine (marked F2 later tendered

v) Under cross-examination, she says that tests to determine the

The injuries were caused by the accused

PB: Yes, put question.

[29] This piece of evidence volunteered by the defence through their

i) at that time when he saw the four accused followed by the

ii) he had prior to that been at the place for about 15 to 20

regularly with two of them, OKT2 and OKT4 who are

v) he himself stays in Kampung Baru Chenderong and has stayed

vi) he identified all the [five] accused in Court.

line 8120 to 8125) as can be seen in the photographs in P6(14) and

[38] Despite coming to the scene on a motorcycle, after the alleged

i) On the night of 17 May 2018 at about 8:30 p.m., he was at

iv) That the 5 Indians had beaten him with a helmet;

vii) Around 11 p.m., he was again asked by SP10 to go over to the

x) He asked SP9 to call for an ambulance and to take the deceased