Salem Ak Brayon v Public Prosecutor [2023] 1 MLJ 441


Court of Appeal (Putrajaya)

Intention to Kill

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

2.     Around 8 pm on 27 November 2016, the Appellant came to the Deceased’s rented room and demanded to know why the Deceased was not answering his text messages and assuming she was having another relationship with another man. However, the Deceased kept silent.

3.     The Appellant become angry and aggressive, thus began assaulting the Deceased relentlessly for up to an hour after the Deceased finally admitted that she was having a relationship with another man.

4.     The prosecution’s prime witness (PW17), a friend who was with the Deceased at that time tried to stop the assault but in vain.

5.     PW17 testified that the Appellant repeatedly slapped, kicked and threw the Deceased around the room, which the Appellant pushed the Deceased towards the concrete wall inside the room whereby the back of the Deceased’s head collided with the concrete wall until the Deceased fell down.

6.     Around 6.35 am on 28 November 2016, PW17 had been informed that the Deceased had died.

7.     The pathologist, PW10 testified that a head injury caused by blunt force trauma was the cause of the Deceased’s death, which was consistent with the fact that the Deceased’s head collided with a hard object like a concrete after the Appellant pushed her aggressively to the wall.

8.     In defence, the Appellant stated that he did not intend to kill the Deceased when he pushed the Deceased towards the concrete wall inside the room. Therefore, he stated that he only banged the Deceased’s head against a soft calcium-board wall.

9.     The Trial Judge ruled the Appellant’s defence failed to raise any reasonable doubt in the prosecution’s case.

10.  In its verdict, the Court of Appeal had dismissed the Appellant’s appeal and affirmed the conviction.

Issue 1.     Whether the trial judge correctly decide that the accused intended to kill the deceased based on the facts and circumstantial evidence?

2.     Whether the act of the Appellant had amounted to murder under Section 302 of Act 574?

3.     Whether the accused’s version of events refuted by the testimony of a witness who saw the accused assaulting the deceased and evidence provided by the pathologist who autopsied the deceased’s body?

4.     Whether ‘last seen together’ theory requires the Appellant to rebut the presumption that he had caused the fatal injuries to the Deceased?

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-


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.     Both mens rea and actus reus elements are essential to establish the offence of murder.

4.     It was held that there is an irresistible inference that the Appellant intended to kill the Deceased based on circumstantial evidence and inferences from his conduct that caused the injuries to the Deceased.

5.     The Appellant’s aggressive assault and various injuries suffered by the Deceased were supported by the testimonies of the witnesses, PW10 and PW17 which the Appellant’s intense jealousy towards the Deceased’s relationship with another man behind his back was the motive for the killing.

6.     Testimony of PW17 as a friend who witnessed the conduct of the Appellant that hitting the Deceased relentlessly and aggressively to the concrete wall was corroborated and supported by the head injury due to blunt force trauma as the cause of death based on the pathologist, PW10’s finding.

7.     In regard to the ‘last seen together’ doctrine, the Appellant failed to defend and explain the injuries including the head injury that led to the Deceased’s death. PW17 testified that the Appellant was with the Deceased when PW17 left the area after everything was already under control.

8.     The trial judge had correctly decided and ruled on the findings towards the Appellant.

Decision The Court of Appeal dismissed the Appellant’s appeal and affirmed the conviction.
Key Take Away 1.     Motive is not an element which must be proven in the murder case, nevertheless, it will become an essential element if it has the ability to support and establish the case against the accused.

2.     The testimony of the credible and truthful witnesses will be assisting the judges and counsels to draw relevant inferences and circumstances regarding the murder case.



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