ABOYS ANAK SAON (M) v PUBLIC PROSECUTOR [2014] 1 MLJ 710

 

ABOYS ANAK SAON (M) v PUBLIC PROSECUTOR [2014] 1 MLJ 710

Court of Appeal (Putrajaya)

Private Defence of Sudden Fight

Facts 1.     The Appellant, aged 25 is the cousin of the deceased, charged and convicted of the offence of murder under Section 302 of the Penal Code (“Act 574”).

2.     According to the witnesses, there was a quarrel between the Appellant and the deceased and that the deceased was hit with the blunt part of a hoe three times by the Appellant.

3.     The pathologist confirmed that the deceased suffered head injuries caused by a blunt force and that the injury to the head was fatal in nature.

4.     The Appellant, in his defence claimed that he acted in self-defence and had no intention to kill the deceased.  His version of story was that the deceased had tried to hit him with the hoe and that he managed to avoid it.

5.     The Appellant admitted that there was a strangle between him and the deceased where he pushed the hoe and it hit the deceased’s forehead.  After the struggle, the deceased collapsed outside the house.

6.     The learned trial judge dismissed the Appellant’s version of story and upheld the evidence of the prosecution.   This is based on the Court’s findings that none of the prosecution witnesses gave evidence that neither the Appellant acted in self-defence nor engaged in a sudden fight.

Issue Whether the learned trial judge is incorrect in his judgement that the Appellant had failed to prove his action of self-defence.
Ratios 1.     The right to private defence can be seen provided under Section 96 of Act 574 as follows:

“Nothing is an offence which is done in the exercise of the right of private defence.”

2.     The burden of establishing private defence is on the Appellant and that the standard of proof is on a preponderance of probabilities.

3.     The Court highlighted the learned trial judge’s findings as follows:

“Despite minor inconsistencies that I have addressed earlier, they gave consistent evidence on this points throughout their long testimony.  For reasons given earlier I found them to be credible witness.  Now the accused would have the court to believe that nothing happened at the verandah but that incident that resulted in the death of the deceased occurred, behind the house which is conveniently out of sight of the witnesses. The case for the defence is nothing happened at the verandah. The only thing that happened there was that the deceased who was already injured climbed onto the said verandah and collapsed to the floor.  However this version of the events was never put to PW2 and PW6 during the case for the prosecution

I also disbelieve the version given by the accused for the following reasons …

In my opinion, having regard to the above circumstances, the defence of accident and private defence is a pure concoction on the part of the accused.”

[Emphasis is added] 

4.     The Court took the same standing with the learned trial judge and agreed that there was no evidence to support the defence of the Appellant claiming that he had acted in his exercise to his right of private defence.

5.     The Court believe that the Appellant has failed to raise the defence of sudden fight due to the provocation by the deceased.

6.     The Court held that the learned trial judge’s conclusion was not flawed by the facts or the law in arriving at his decision.

Decision The Court of Appeal dismissed the appeal against his conviction and sentence under Section 302 of Act 574.
Key Take Away 1.     Under the Malaysian law, the defence of sudden fight is recognized under Exception of Section 300 of Act 574 which explained that culpable homicide is not a murder if it is committed in the due of a sudden fight.

2.     The elements of sudden fight are as follows:

(a)  There must be a fight between the accused and the deceased which was unanticipated and instantaneous.

(b)  There was an absence of premeditation, where the fight must not be a planned or a premeditated attack.

 

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