DALAM MAHKAMAH RAYUAN, MALAYSIA
(BIDANGKUASA RAYUAN)
RAYUAN JENAYAH NO: A-05-158-2010
ANTARA
OI LAI SENG
...
PERAYU
...
RESPONDEN
DAN
PENDAKWA RAYA
CORAM:
CLEMENT SKINNER, JCA
LIM YEE LAN, JCA
ROHANA YUSUF, JCA
2
JUDGMENT OF THE COURT
[1]
The Appellant, Oi Lai Seng, was charged and tried under
s.302 of the Penal Code (the Code) for the murder of one, Ibrahim Bin
Selamat (the deceased). The charge read as follows:
Bahawa kamu pada 26 Mei 2001, lebih kurang jam
4.15 pagi di KM3501.1 Lebuhraya Utara Selatan,
Sungkai di dalam Daerah Batang Padang, di dalam
Negeri Perak, telah melakukan pembunuhan dengan
menyebabkan kematian IBRAHIM BIN SELAMAT,
K/P NO. 590319-01-5769. Oleh yang demikian kamu
telah melakukan suatu kesalahan yang boleh
dihukum di bawah seksyen 302 Kanun Keseksaan.
[2]
At the end of the case for the prosecution the learned JC
found that the prosecution had made out a prima facie case against
the Appellant on the charge. The learned JC called upon the Appellant
to enter his defence. At the conclusion of the trial the learned JC
convicted the Appellant on the murder charge and sentenced him to
death as prescribed by the Code. Aggrieved by that decision the
Appellant appealed to this court.
[3]
The appeal came before us on 08.03.2013. After having
considered the appeal we unanimously dismissed it. We affirmed the
conviction and sentence imposed by the High Court and we now give
our reasons for our decision.
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[4]
The Appellant was said to have caused the death of the
deceased on 26.05.2011 at 4.15 am at Sungkai, Perak along the
North South Highway. The deceased was travelling in a Proton Wira
together with his wife and 2 daughters. They were travelling from their
house in Kulim Kedah to Tangkak Johor on the North South Highway
on 25.05.2001 at about 11.00 am. The deceased who was driving was
in the front seat with his wife while their two daughters were in the
back.
[5]
The deceased made a stop at Ladang Bikam rest area to
ease himself. At that time the wife SP10 was asleep and upon waking
up saw the deceased walking back to their car. At that same time she
saw the accused enter their car through the right back door. The
daughter (SP5) was awoken when her sister’s hand was squeezed
against hers when the accused entered the car and sat on the right
side in the back seat. The Appellant was holding a pistol and he fired
a warning shot when he was in the car. The Appellant then announced
that he was a robber and told the deceased to drive the car towards
south. Along the way the Appellant ordered SP10 to hand over all gold
items as well as other valuables that was on her. SP5 heard the
Appellant order the deceased to hand over his wallet.
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[6]
The Appellant then ordered the deceased to stop the car on
the road shoulder at a secluded stretch of the highway at km350. The
family was told to alight from the car. Both the Appellant and the
deceased were near the driver’s side outside of the car. SP10 and
SP5 heard the deceased ask for the return of his identity card and
driving licence. SP10 and SP5 then heard 2 gunshots coming from
where the Appellant and the deceased were. Almost immediately
after, SP10 saw her husband staggering towards her and he was
about to fall. She rushed to him and he immediately fell in her arms
and closed his eyes. The Appellant went into of the car and drove off
heading south, leaving every one else by the highway.
[7]
The post mortem report shows that the deceased died of
gunshot wound and he probably died less than 5 minutes after being
shot. SP4, the forensic pathologist testified that the chances of
survival from a wound of that nature would have been slim, judging
from the injury inflicted on the deceased. The injury, which was quoted
by the learned JC, as per forensic report is as follows:
“Internal examination of the wound showed that the bullet
entered the chest cavity through the anterior chest at left third
intercostal space just above the left 4th ribs. If then penetrated
the upper part of pericardial sac, then into the left atrium, then
through the ascending aorta and causing it to rupture. The
bullet then penetrated out through the right lateral surface of
the descending aorta into the right chest cavity. It then entered
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the right posterior chest wall at the level of right 5th intercostal
space and finally embedded into the adjacent subcutaneous
tissue‘”
[8]
The report clearly found that the deceased did not suffer
from any other injury that could have caused his death.
[9]
At the trial, SP10 and SP5 gave a full account of what had
happened on that fateful day. In the words of the learned JC she
found the ‘testimony and account of both SP10 and SP5 to be
consistent and credible about what happened on that fateful early
morning. They did not miss a beat when they unhesitatingly identified
the accused as the male Chinese who robbed them and drove off with
their car after they heard the sound of shots fired’. The police held an
identification parade and the Appellant was clearly identified by both
SP10 and SP5 on 23.07.2001.
[10]
On the basis of the evidence before her, and on the
credibility of both SP10 and SP5, after the conclusion of the
prosecution’s case the learned JC found that the prosecution had
made out a prima facie case against the Appellant on the charge. The
learned JC then ordered the Appellant to enter his defence.
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[11]
In his defence the Appellant said on the night in question, he
was under the influence of syabu and claimed he was ‘dreamy’. He
did not deny that he had a pistol on him and said the pistol went off in
the car when he panicked. He said he did not realise that he had
pulled the trigger. He also did not deny the fact that he ordered the
passengers and the deceased to hand over their belongings after
announcing his intention to rob. He recalled the deceased had asked
something back from him. He did not deny firing 2 shots but tried to
justify his action by saying that he panicked when he saw the
deceased walking towards him. He said that he fired the shots in a
downward direction and did not realise the shot had hit the deceased.
[12]
In her findings the learned JC summed up the defence as a
total confirmation of the prosecution’s case, which corroborated the
testimony of the prosecution’s material witnesses. She found the
Appellant to be an astute man who presented his story in a way to
justify his state of fear that led to his firing of the 2 shots. It was all due
supposedly to the influence of syabu. There was however no evidence
to show that the Appellant was under the influence of syabu.
[13]
At the end of the trial the learned JC found that the Appellant
had failed to create any reasonable doubt on the prosecution’s case
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and accordingly convicted the Appellant on the murder charge. He
was then sentenced to death as prescribed under the Code.
[14]
In his Petition of Appeal the Appellant raised a number of
grounds. However, before us, learned counsel for the Appellant
confined himself to only one issue. He submitted that the learned JC
erred when she failed to take into account that there was no mens rea
proven under s.300 by the prosecution to sustain a conviction under
s.302 of the Penal Code.
[15]
We have read the judgment of the learned JC found at pages
2 to 21 of the Appeal Record Vol 1, where there were clear references
to mens rea. In her Grounds of Judgment the learned JC did in fact
deliberate on the issue of mens rea as required under s.300 of the
Penal Code. After considering the facts and the laws applicable to
s.300 (a) and (c), she invoked s.300 (c). She emphasised in her
judgment at pages 10 to 16 of the Appeal Record Vol.1, that to prove
mens rea under s.300 (c), as in the present case, it need not be
shown that the Appellant intended to cause bodily injury that is likely
to cause death in the ordinary course of nature. It is irrelevant whether
or not the Appellant did intend to cause death. So long as death
ensued from the bodily injury caused with intent, it would suffice. The
8
learned JC referred to the case of Tan Chee Wee v PP [2004] 1 SLR
479 where the Court of Appeal of Singapore drew the distinction
between a charge under s.300 (a) with that under s.300 (c) of the
Penal Code. As stated by Yong Pung How CJ in that case, the key
difference between these two provisions is one of intention. Under
s.300 (a) the act by which death is caused must be done with the
intention of causing death. Whereas, under s.300 (c) the intention
required was only to cause bodily injury and that injury is likely to
cause death in the ordinary course of nature. Therefore it would be
irrelevant under s.300 (c) for the prosecution to prove that an accused
intended to cause death.
[16]
In our view the learned JC had properly deliberated on the
law under s.300 (c) in the light of all the evidence before her. The
learned JC had relied on the material evidence before her, viz, that the
Appellant entered the car armed with a firearm then fired a shot while
he was in the car; the deceased was not armed when he requested for
his identity card; there was no evidence of provocation or any
struggle; the shots were fired at close range and hit vital organs of the
deceased namely, his heart and aorta. The act of carrying a firearm in
the course of a robbery by itself showed that the Appellant had the
intention to inflict gunshot injury. No other intention could be inferred
9
from this. The gunshot wound, which caused the deceased to
succumb to the injury and die in less than 5 minutes, establishes the
point that the injury inflicted was sufficient to cause death in the
ordinary course of nature. Therefore the requirement under s.300(c) of
the Penal Code was clearly established.
[17]
On the totality of evidence before the learned JC, we find no
error on her assessment of the facts and law. We find the evidence
adduced by the prosecution was overwhelming and unrebutted at the
end of the trial. There was no doubt created in the prosecution’s case.
The learned JC found that the ruthless nature and brutality of the
Appellant’s act was done with the intention of causing bodily injury that
would be sufficient to cause death in the ordinary course of nature.
We agree with the learned JC on her finding and assessment of the
facts and law. Intention is a matter of inference from the acts and or
omission of the Appellant for not even the devil knows the intent of
men and this would be found upon consideration of the facts and
circumstances of each case. (see PP v Abdul Razak b Dalek [2007]
2 MLJ 255).
[18]
Having said the above, it is our view that the commission of a
wicked crime against the innocent for no rhyme or reason is simply
10
appalling particularly when a life so precious is taken in such a
precarious manner. The Appellant in this case had achieved what he
had set out to do, namely rob the deceased and family. The deceased
and his family had complied with all of the Appellant’s command.
There was no need to cause such bodily injury, which resulted in the
death of the deceased. What the Appellant did was despicable and fall
way below what is considered civil in our society. Justice therefore
demands that such crime be dealt with to the fullest extent under the
law though it provides little comfort to the family of the deceased
whose grief must be inconsolable. No amount of sympathy would be
able to make up for the loss but we do hope that this would provide a
closure to a very tragic episode of their lives.
[19]
Premised on all the above reasons, we do not find any
misdirection by the learned JC in her application of the law to the facts
found. We therefore do not find merit in this appeal and we find the
conviction of Appellant safe on the evidence disclosed at the trial.
[20]
On these reasons we dismissed the appeal of the Appellant.
We accordingly affirmed the conviction and the sentence of death
imposed by the High Court.
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t.t.
Rohana Yusuf
Judge
Court of Appeal
Putrajaya
Dated: 12 November 2013
Counsel for the Appellant:
Deputy Public Prosecutor :
Puan Suzanawati binti Ismail
Tetuan Suzana Ismail & Partners
Peguambela & Peguamcara
No. 26, Jalan Galena 7/24
Seksyen 7
40000 Shah Alam
SELANGOR DARUL EHSAN
Encik Najib bin Zakaria
Jabatan Peguam Negara
Bahagian Perbicaraan dan Rayuan
Aras 5, No. 45, Lot 4G7
Presint 4, Persiaran Perdana
62100 PUTRAJAYA