Iskandar Zulkarnain Bin Zolkifly v Public Prosecutor [2022] 2 MLJ 512

ISKANDAR ZULKARNAIN BIN ZOLKIFLY v PUBLIC PROSECUTOR [2022] 2 MLJ 512

Court of Appeal (Putrajaya)

Guilty of Murder

Facts 1.     The subject matter of this appeal is the Appellant was charged of murder by causing the death of the Deceased punishable under Section 302 of the Penal Code (Act 574).

2.     On 9 pm 21 October 2017, PW3, the neighbour heard the crying voice from the Deceased at her house. PW3 testified that he knew the Appellant and saw the Appellant several times at the Deceased’s house.

3.     PW3 immediately informed it via WhatsApp message to PW5, the Deceased’s brother. PW3 was certain that the Appellant was in the Deceased’s house because his motorcycle was parked in front of the house.

4.     PW5 rushed to the Deceased’s house and knocked on the front door, but it was unanswered.

5.     The door was locked, so PW5 kicked the door and opened the house with PW3 and PW4, the father of PW3.

6.     PW5 saw the Deceased lying down full of blood with a knife and a pair of scissors near the victim. PW5 suspected the Appellant was in the house during the incident because his motorcycle was still parked in front of the house and the backdoor was opened.

7.     PW5 testified that the Appellant was his employee and staying with the Deceased and her husband, PW7. PW5 testified that the Appellant left the house at 9 am. The Appellant told the PW5 that he was on leave on that day.

8.     At 10 pm on the same date, PW10, the police officer testified that he found and arrested the Appellant hiding in a bush behind the Deceased’s house, with the Appellant’s trousers and belt covered in blood. PW10 then lodged a police report.

9.     At 1.35 am on 22 October 2017, the Appellant showed the shirt and cap he wore during the incident to PW9, another police officer.

10.  PW11, the chemist testified the Deceased’s DNA was found on the Appellant’s fingernails, on the knife and scissors recovered at the Deceased’s house including the backdoor knob.

11.  PW12, the pathologist testified that the cause of death was the injury to the head and pressure exerted on the Deceased’s neck. PW12 confirmed that the injuries on the face and head are aligned with the use of a sharp object such as knife and scissors found at the Deceased’s house.

12.  The defence of the Appellant was that there was grave and sudden provocation against him by the Deceased as the Appellant alleged he was angry because the Accused insulted his parents and became abusive.

Issue 1.     Whether the learned trial judge did not consider the testimony of PW12, the pathologist?

2.     Whether the learned trial judge failed to determine which limb of Section 300(c) of Act 574 had been proven by the Prosecution?

Ratios 1.     Culpable Homicide

(a)  Section 299 of Act 574 provides that-

“Culpable homicide

299. 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.”

2.     Murder

(b)  Section 300 of Act 574 provides that-

“Murder

299. Except in the cases hereinafter excepted, 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.”

3.     Under Section 300(c) of Act 574, the learned trial judge was right in deciding that the Appellant had intended to cause bodily injuries and such bodily injuries were sufficient in the ordinary course of nature to lead to the death of the Deceased.

4.     The injuries inflicted by the Appellant had resulted in the death towards the Deceased due to the head injury with the pressure to the neck. PW12 testified that the face and head injuries on the Deceased were consistent with blunt and sharp force traumas. Also, the injuries on the neck were consistent with blunt force trauma.

5.     The learned trial judge decided that there was no grave and sudden provocation by the Deceased towards the Appellant and no evidence that the Appellant was unsound of mind during the incident. Contradictorily, in fact, the Appellant only testified it at the defence stage and the same was never testified by the witness at Prosecution during the prosecution stage. The trial court decided it as an afterthought. The Appellant admitted he stabbed the Deceased repeatedly.

6.     Therefore, the Appellant’s deliberate act of stabbing the victim frequently was not fully related to the question of whether he intended to cause the injury that was sufficient to cause the death of the Deceased in the ordinary course of nature.

7.     The Appellant did not fulfil the test of a grave and sudden provocation which he could not justify and prove the evidence of provocation to determine whether he was provoked to lose his self-control during the incident.

8.     There was no evidence that the Appellant’s alleged words led to the sudden and grave provocation.

9.     The Court of Appeal decided that the Appellant had committed culpable homicide amounting to murder, which he went to the kitchen taking a break to have a drink between stabbings was not consistent with provocation.

Decision The Court of Appeal affirmed the High Court decision and dismissed the appeal by the Appellant.
Key Take Away 1.     It is essential to note that the question regarding the intention based on Section 300 (c) of Act 574 is whether the Accused intended to inflict a serious injury that is proved to be present during the incident. Therefore, it is not important to analyse the type of injury that the Accused intended to inflict towards the victim.

2.     Hence, in the murder case, Section 300 (c) of Act 574 is concerned with the burden of proof to show that the injury was present was intentionally caused by the Accused, including the injury was sufficient in the ordinary course of nature to cause death.

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