Mohd-sofie-bin-abdullah-v-public-prosecutor-2007-mlju
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Mohd Sofie bin Abdullah v Public Prosecutor [2007 ] MLJUCriminal Law II (Universiti Sains Islam Malaysia)Scan to open on StudocuStudocu is not sponsored or endorsed by any college or universityMohd Sofie bin Abdullah v Public Prosecutor [2007 ] MLJUCriminal Law II (Universiti Sains Islam Malaysia)Scan to open on StudocuStudocu is not sponsored or endorsed by any college or universityDownloaded by Sidney (sdnaeyloveu@gmail.com)lOMoARcPSD|36580692
| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2024 LexisNexisDate and Time: Tuesday, 30 April 2024 11:26:00PM MYTJob Number: 223165684Document (1)1. Mohd Sofie bin Abdullah v Public Prosecutor [2007] MLJU 513Client/Matter: -None-Search Terms: private defence section 96Search Type: Natural Language Narrowed by: Content TypeNarrowed byMY Cases-None-Downloaded by Sidney (sdnaeyloveu@gmail.com)lOMoARcPSD|36580692
MOHD SOFIE BIN ABDULLAH v PUBLIC PROSECUTORCaseAnalysis| [2007] MLJU 513Mohd Sofie bin Abdullah v Public Prosecutor [2007] MLJU 513Malayan Law Journal UnreportedHIGH COURT (KUCHING)Haji Hamid Sultan Bin Abu Backer, JCOFFENDER APPEAL NO 42-26-2007-II26 September 2007Case SummaryCRIMINAL PROCEDURE — Appeal — Conviction, against — Failure of trial judge to provide grounds of judgment — Substantial miscarriage of justice — Whether appellant entitled to defenceof self-defence— Penal Code, ss 99, 100John Shek (John Shek, Sigar, Wei Yee & Co) for AppellantMohd Daud bin Ismail (Timbalan Pendakwa Raya, Jabatan Peguam Negeri, Sarawak) for RespondentJUDGMENT1.This is my judgment in respect of the appellant's appeal against the decision of the learned sessions judge who convicted and sentenced the appellant to 3 years imprisonment under the second limb of section 304 of the Penal Code on 18-01-1997.2.The appellant was charged as follows:"That you on the 28thday of February, 1995 between 11.00 p.m. and 11.30 p.m. at Room No. 7, 179, Jalan Ajibah Abol, in the District of Kuching, in the State of Sarawak, did cause the death of one, Hj. Gani Bin Daud (m) with the knowledge that your act was likely to cause death and you thereby committed an offence punishable under Section 304, 2ndLimb of the Penal Code."3.The appellant at the outset complains that the learned sessions judge had not delivered the grounds of judgment although 10 years have lapsed. The only grounds of the judgment are found in the notes of proceedings which read as follows:"I do not find the defenceand of accident and of self-defenceto have been proved on the balance of probabilities.I find the prosecution has proved beyond reasonable doubt that the 1staccused (Juvenile) committed the offence of Culpable Homicide not amounting to murder under 2ndlimb of the Penal Code and that the defencehas not cast any reasonable doubt on the prosecution's cause or the accused's quiet.I find Juvenile accused guilty of the offence charged.Downloaded by Sidney (sdnaeyloveu@gmail.com)lOMoARcPSD|36580692
Page 2 of 7Mohd Sofie bin Abdullah v Public Prosecutor [2007] MLJU 513To:- December 17th1996 for Probation report and order against the Juvenile accused."The appellant says that it is trite in giving his ground of decision, the learned sessions judge should state, except in simplest cases, the reason why he ruled that the right of privatedefenceis not available to the appellant and the prosecution had proved its case beyond reasonable doubt. Since it was not done, the appellant could not follow section 307(6) of the Criminal Procedure Code to define particulars of points of law or of facts in regard to which the court appealed from is alleged to have erred in this petition. I quiet agree and on this ground alone the appeal must be allowed as there was substantial miscarriage of justice in the failure of the learned sessions judge to at least state the reasons for the decision in point form. In Murugiah v. Public Prosecutor[1941] MLJ Rep. 16, Horne J in quashing the conviction opined:"It does not appear to me that a Magistrate complies with section 307 (iii) of the Criminal Procedure Code which requires him to give the "Grounds of Decision" by stating "I believe the evidence of the prosecution"…. "I disbelieve the evidence of the accused." I think the Magistrate should state, except in the simplest of cases and they usually are not the subject of appeal, the reasons why he believed or disbelieved the evidence in question."However, on the facts of the case, the safer approach for me to take is to deal with the merits of the appeal and I hereby do so.Facts4.In brief, the deceased in this case had attempted to sodomise and sexually assaulted the appellant who was then about 15 years old. The appellant's counsel says that during the course of the incident, to protect the appellant's honour as well as to diffuse the deceased attack, the appellant had attempted to defend himself and that led to the death of the accused. The appellant counsel sets out the facts of the case as follows:"The Prosecution had revealed that on 28/5/95 at about 11.p.m. a person by the name of Hj. Gani bin Daud was found lying dead at his rented house at Room 7, No. 179, Jalan Datuk Ajibah Abol, Kuching. Investigation was immediately carried out resulting in the arrest of the two suspects – (1) Mohamad Sofie bin Abdullah aged about 16 years and (2) Iswandi bin Wakijo aged 19 years. Later both of them were charged jointly for the offence of causing the death of Hj. Gani bin Daud in furtherance of the common intention with the knowledge of causing such bodily injury as was likely to cause death punishable under Section 304 (2ndLimb) of the Penal Code and read with Section 304 of the same Code.The Police had called for 13 witnesses to testify. Apart from identifying the Appellant they could not tell what had actually happened in Room 7, No.179, Jalan Alibah Abol, Kuching except from the confession of the Appellant. At the close of the Prosecution's case, the Appellant was called upon by the Court to enter his defencebut the other accused was acquitted and discharged without his defencebeing called. There left the confession of the Appellant to be considered.The Appellant gave his evidence on oath and called for two other witnesses but at the end of the trial the learned Sessions Court Judge convicted the Appellant ruling that the Prosecution had proved the case beyond reasonable doubt and rejected the act of accident and self-defence. Hence the Appellant lodged this appeal.The Appellant's version of defence: (confession)The Appellant was only 15+ years old on the night in question. He is by definition a juvenile. Before the fateful night the Appellant became acquainted with the Deceased (Hj Ghani) as the Deceased was a regular customer of his. The Appellant was operating a burger stall at Jalan Muhibbah, Kuching, with his friend Abd. Rahman. The Deceased used to ask the Appellant to 'keep the change' whenever he bought burgers from the Appellant. The Deceased would give a RM5 note for a RM1.20 worth of burger. This used to make the Appellant happy. One month after the acquaintance started and on the fateful night, the Appellant and his friend decided to close the stall early as it was very near Hari Raya. Everyone else in the kampong was busy preparing for the big day. On his way home he met his friend Iswandi (formally the 2ndaccused in the Downloaded by Sidney (sdnaeyloveu@gmail.com)lOMoARcPSD|36580692
Page 3 of 7Mohd Sofie bin Abdullah v Public Prosecutor [2007] MLJU 513proceeding). He joined Iswandi who was sitting at a bench in front of another friend's house. It was there, while with Iswandi that the Deceased passed by on a motorcycle. The Deceased stopped and invited both Iswandi and the Appellant to his house. Both the Appellant and Iswandi accepted such offer. The Deceased asked both of them to follow him.So, both of them followed the Deceased while the Deceased led the way. However he took the direction of Jambatan Bintangor and not Kpg. Gita. At Jambatan Bintangor the Deceased stopped again. This time he told the Appellant and Iswandi that he had forgotten his keys and he asked both of them to wait for him at Tong Hin Shop at Jalan Datuk Ajibah Abol Kuching. Therefore they waited for the Deceased. But after a while they decided to roam the kampong and after about half an hour they then returned to Tong Hin.Iswandi was riding the motorcycle while the Appellant was seated as a pillion rider. The Appellant was not sure how long they had waited but the Deceased did return to them at Tong Hin and asked them to follow him again. They reached a house at Jalan Datuk Ajibah Abol. The Deceased immediately said that he wanted to settle his debt with somebody. It was only for a short while. When he came back he opened the door to a room which was rented by him.As soon as the Deceased went inside he tried to 'switch on' the light to the room but it did not work. The door was still open at that time so the Appellant was able to see a little but not clearly what type of bulb it was. It was a fluorescent tube bulb. The Deceased asked the Appellant to help 'adjust' the bulb. He did so but it still did not function. After that the Deceased asked the Appellanat to invite Iswandi (who was still outside) into the room as the Deceased said that it was not nice if people see him (Iswandi) hanging outside.Iswandi then entered the room and the Deceased asked that the door be closed. The Deceased then told the Appellant to take off his shirt and said that he would pay a reward for that. The Deceased promised to give RM50.00 for that. The Appellanat therefore took off his shirt as he was lured by the promise of RM50.00 without knowing what was exactly the Deceased's intention. It did not even cross his mind why? Suspecting nothing would happen the Appellant did take off his shirt thinking that he would be awarded with RM50.00 for doing so.The Deceased then also asked Iswandi to take off his shirt and long pants. At that time Iswandi was next or near to the Appellant, while the Deceased was in front of them. Iswandi also took off his shirt. Then the Deceased asked the Appellant to take off his long pants. The Appellant did so. The Deceased then took off his own shirt and he only wore a sarong. Then the Deceased said to the Appellant that he wanted to suck the Appellant's penis. But before doing this the Deceased showed his buttocks to the Appellant inviting the Appellant to poke him but the Appellant refused. However the Deceased was so fast that he managed to suck the Appellant's penis. (The Deceased grabbed the Appellant's penis and sucked it.) The Appellant quickly pushed the Deceased away. The Deceased then showed his buttocks again. The Deceased was not wearing any underwear. The Deceased wanted the Appellant to 'play' his backside – sodomise him again. The Appellant knew that although the Deceased did not say anything. The Appellant said to him "jangan main". But the Deceased insisted to show his backside. The Appellant then kicked his backside and he fell forward. While falling forward, the Deceased knocked his head at the door. The Deceased became angry. He took a knife from somewhere in the room near him. He swung the knife at the Appellant. When the Appellant saw the Deceased swinging the knife, he lifted both his hands. (Note : The Appellant might not know at first it was a knife as the room was quite dark. However, he felt both his hands have been cut by the knife. The Deceased continued swinging the knife at the Appellant. It happened very fast. Iswandi kicked the Deceased's hand in which he held the knife and the knife fell down to the floor, next or near to the Appellant. The Appellant picked up the knife with both his hands. He had to use both hands to pick up the knife up as he was already injured. He then held the knife with the handle placed on his chest, also with both hands. The knife's edge was pointing towards the Deceased. This too happened so quickly in that it was as soon as he placed the knife's handle on his chest, the Deceased rushed violently towards him and in the process the Deceased threw his body onto the edge of the knife which inevitably pierced his chest. The Appellant who was standing with his back to the wall at this time, fell backward and leaned onto the wall. While the knife was still on his chest, the Deceased tried to pull it out but Iswandi managed to grab it away. Iswandi used the knife to scare the Deceased away by swinging it at the Deceased. However the Deceased fell down to the floor. Downloaded by Sidney (sdnaeyloveu@gmail.com)lOMoARcPSD|36580692
Page 4 of 7Mohd Sofie bin Abdullah v Public Prosecutor [2007] MLJU 513The Appellant and Iswandi rushed out of the room with the Appellant completely naked. The Appellant forgot that he was without his clothes. He went in again to collect his clothes. The Deceased appeared to him to be getting up again wanting to chase him. He ran out again holding his clothes in his hands. That was the last time he saw the Deceased. While running away and in his panic state he shouted "ada orang berkelahi". Both the Appellant and Iswandi went to the bridge (Jambatan Ajibah Abol) where they threw away their shirts. They did not throw away the knife. Iswandi asked the Appellant to put it in the motorcycle's basket. It was lost on the way after that. Both of them did not know how it dropped out or where it had dropped. They escaped to Bau. The next day (evening) they returned to Kuching. Somewhere at Batu Lintang they stumbled upon Che Mit (the Appellant's relative) who brought them home."Respondent's submission5.The respondent, learned DPP, Encik Mohd Daud bin Ismail has put a comprehensive and articulate submission which had enabled me to write this judgment. The respondent's submission can be summarised as follows:(i)Section 96of the Penal Code allows an accused person to plead privatedefenceto person or property as a general defencewhich, if successfully pleaded, acquits the accused entirely of any offence. However, section 96must be read together with other provisions in the Penal Code. The other relevant provisions are section 100 of the Penal Code where it is stated that the right to privatedefenceof the body extends, under the restrictions mentioned in section 99, to voluntarily causing the death or of any other harm to the assailant, only if it is necessary to repel one of the specific types of threats mentioned in section 100, namely: (a) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; (b) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; (c) an assault with the intention of committing rape; (d) an assault with the intention of gratifying unnatural lust; (e) an assault with the intention of kidnapping or abducting; (f) an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.As far as this case is concerned, only paragraphs (a) and (b) of section 100 are relevant for consideration. In section 101 of the Penal Code, it is stated that if the threat apprehended is not one of those offences mentioned in section 100, then the right of privatedefenceof the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to voluntarily causing to the assailant any harm other than death. Therefore, three vital questions need to be asked before it can be safely concluded that the appellant had acted in self-defence, which are: (a) whether the appellant in exercising the right had reasonable cause of apprehension of death or of grievous hurt to himself? (b) even if the appellant's right of privatedefencehad arisen, whether the appellant had inflicted more harm than is necessary because by section 99(4) of the Penal Code, "the right of privatedefencein no case extends to the inflicting of more harm than is necessary for the purpose of defence". In order to answer this question, relevant factors such as the relative physique of the parties, the frame of mind and conduct of the parties, the nature of the wound inflicted and whether there was any other ways of averting danger must be taken into consideration [see 'Criminal Law in Singapore and Malaysia' by KL Koh, CMV Clarkson and NA Morgan, page 120]. (c)the duration of the right of defencebeing commensurate with the continuation of the danger.(ii)The learned DPP says that the appellant on the facts in exercising the right of privatedefencedid not have a reasonable cause of apprehension of death or of grievous hurt to himself and relies on this part of the notes of proceeding which read as follows:"After I took off my shirt, Hj. Gani took off his shirt. He wanted to suck my penis and said he would give me money.He said, "Nak hisap pelir kita".I kicked his backside. His head knocked against the door. Then he was angry. He was angry. He took a knife. I do not know from where. He swing knife around.Downloaded by Sidney (sdnaeyloveu@gmail.com)lOMoARcPSD|36580692
Page 5 of 7Mohd Sofie bin Abdullah v Public Prosecutor [2007] MLJU 513I also lifted my hand to avoid the knife and I was cut at the fingers of both my hand.While he swinging the knife, Wandi hit at his hand and the knife dropped down next to me.I quickly got hold of the knife for fear that Hj. Gani would pick it and would attack Iswandi and me.I held the knife in front of my chest. The head was pointing frontwards.Hj. Gani rushed forward towards me. The knife I held pierced his chest. He was rushing from 7 feet away from me.I was then standing with my back against the wall. Hj. Gani was paralled to the bed.The knife was stuck onto his chest. Hj. Gani pulled it out and Iswandi grabbed the knife away from him. Iswandi swung the knife in order to scare off Hj. Gani.Then Hj. Gani fell down."Relying on the above evidence, the learned DPP says that from the evidence given by the appellant himself, the Court may analyze whether there exists reasonable cause of apprehension of danger or grievous hurt to the appellant when the fatal stab was made and says it is necessary to examine closely whether a reasonable person in the appellant's position could have experienced such apprehension. In the case of Govindan Neelambaran v StateAIR 1960 Ker 258 at page 260 Govinda Menon J of the Kerala Court of Appeal made the following comment:"One has to place himself in the position of the accused in the midst of circumstances in which the accused stood and then form an opinion whether under the peculiar circumstances, the accused had not the apprehension of such injuries to his body as would entitled him to exercise his right of privatedefence."Further, the learned DPP says it is evidently clear before the Court that the appellant was the one with the knife when he picked it up from the floor; "... the knife dropped down next to me. I quickly got hold of the knife". At this point of time, it is not the deceased who had the advantage or was in power of inflicting grievous hurt or cause death to anyone as the deceased was bare handed without any weapon with him. The appellant's apprehension of death or grievous hurt from a man (the deceased) who was bare handed in front of him whereas the dangerous weapon, a knife, was in fact in the appellant's hand at the material time, could not by any rational man put in the same circumstances, be said to be reasonable.(iii)The learned DPP says that even if the appellant's right of privatedefencehad arisen, whether the appellant had inflicted more harm than is necessary because by section 99(4) of the Penal Code, "the right of privatedefencein no case extends to the inflicting of more harm than is necessary for the purpose of defence". In order to answer this question, relevant factors such as the relative physique of the parties, the frame of mind and conduct of the parties, the nature of the wound inflicted and whether there was any other way of averting danger must be taken into consideration. From the facts of the case, it can be observed that the appellant was together with his friend Iswandi inside a room when the deceased was stabbed. It was two men against one. The appellant was the one holding a knife whereas the deceased was bare handed.(iv) Finally, the learned DPP says based on the evidence of the pathologist above, that the learned sessions judge was correct in finding that the injuries or cut wounds inflicted on the deceased was neither accidentally done nor was done with the necessary force. Unnecessary and excessive force was obviously used by the appellant to stab the deceased who was an obese elderly man who might not have had the strength to compete with the appellant and his friend who are far much younger than the deceased. The number of wounds inflicted on the deceased may give an inference that the deceased was never the aggressor at that time as he was badly wounded with a sharp object on various parts of his body i.e. he was cut at the left shoulder, left ear, left forearm, neck and the back of Downloaded by Sidney (sdnaeyloveu@gmail.com)lOMoARcPSD|36580692
Page 6 of 7Mohd Sofie bin Abdullah v Public Prosecutor [2007] MLJU 513his trunk before he was finally stabbed at the right chest with the fatal blow. Even if it is true that the deceased came rushing forward towards the appellant, what would be the reason for him to use excessive force in stabbing an injured elderly man who is unarmed? And say that in the case of PP v Abdul Manap[1956] MLJ 214 it was held that retaliation cannot exceed what is reasonably necessary to avert an assailant's threat.6.In response to the line of submission adopted by the learned DPP, the learned counsel for the appellant anchors his submission as follows:"There was no doubt that it was the act of the Appellant which caused the death of the Deceased. The questions which had to be decided were whether the defencehad established the right of self-defence, and whether there was a continuing danger and a reasonable apprehension of such danger: There was a reasonable apprehension of danger to the life of the Appellant when the Deceased rushed at him with the knife in his hand, and at that stage he had the right of privatedefencewhich extended even to the killing of the Deceased. In the light of the evidence produced by the Prosecution, there was a reasonable possibility, nay probability, that if the Deceased had himself managed to get hold of the knife, he would have struck some blows with the knife on the Appellant. In the circumstances and in the situation in which the Appellant found himself, there was bound to be in his mind a reasonable apprehension of death or grievous hurt being caused to him by the Deceased unless he got out of reach of the Deceased. The Appellant has through the Prosecution's witnesses proved that cum his version of defencethat the Deceased had tried to lure the Appellant to do something unnatural. He was angered when the Appellant refused to play his buttock and kicked his buttock. The Deceased took a knife and charged at the Appellant. There was a struggle between the Deceased and the Appellant. It is reasonable to suppose that the Deceased during his attack caused injuries to his fingers/palms. The Appellant in this critical situation in stabbed the Deceased to defend himself. The reasonable apprehension of death at the hands of the Deceased could not thus be said to have left the mind of the Appellant. In the circumstances, the right of privateself defencearose."7.I have read the appeal record, the submissions of the parties in detail and I take the view that the appeal must be allowed and my reasons are as follows:(i)Ordinarily, and as a matter of honour, one is entitled to privatedefencewhen he or she is sexually assaulted. However, the law requires that the force used must not be out of proportion. Support for my proposition is found in a number of cases. Some of them are as follows:(a)In Musa bin Yusof v. Public Prosecutor[1953] 19 MLJ 70, (Court of Appeal) Mathew CJ, Wilson and Briggs JJ held:"The law in this country gives greater latitude to a person who is attacked than does the law in England. The question in such cases is not whether there was an actual continuing danger, but whether there was a reasonable apprehension of such danger. If such a condition exists, the person attacked is not obliged to retreat, but may pursue his adversary till he finds himself out of danger and if in a conflict between them, he happens to kill, such killing is justifiable."(b)In Public Prosecutor v. Yeo Kim Bok[1971] 1 MLJ 204, the facts of the case and the law has some similarity to our case. The fact of the case is that the accused was charged for having committed culpable homicide not amounting to murder by causing the death of one Lee Peak with the knowledge that the act committed by him was likely to cause the death of the deceased. At the end of the prosecution case, defencecounsel submitted that there was no case for the accused to meet. It was clear from the prosecution evidence that the deceased and the accused had, prior to the incident, some money dealings and that the deceased had lent some money to the accused and had demanded its repayment. This was when he found the accused in a coffee shop, the deceased demanded repayment of the loan in a very aggressive manner and on seeing the accused remaining calm and passive went to pick up a knife when the accused was possibly going out of the shop through its rear door. After having picked up the knife the deceased rushed towards the accused who had no way to escape. Finding himself in that desperate situation, the accused turned back, picked up a wooden ladle and with it hit the knife which was held by the deceased. As a result of this, the knife fell on the ground and both the accused and the deceased started to grapple with each other and fell down rolling on the ground endeavouring to pick up the knife which had fallen from the hand of the deceased. This struggle lasted for a short while after which a witness saw an object in the hand of the accused. This object looked like a knife. The Downloaded by Sidney (sdnaeyloveu@gmail.com)lOMoARcPSD|36580692
Page 7 of 7Mohd Sofie bin Abdullah v Public Prosecutor [2007] MLJU 513accused remained pinned under the deceased most of the time except on one occasion. According to the evidence, the deceased was a man of better build and strength than the accused. There was no doubt that it was the act of the accused which caused the death of the deceased. The questions which had to be decided were whether the defencehad established the right of self defence, and whether there was continuing danger and a reasonable apprehension of such danger. Sharma J held:"(1) there was a reasonable apprehension of danger to the life of the accused when the deceased rushed at him with the knife in his hand and at that stage he had the right of privatedefencewhich extended even to the killing of the deceased;(2) in the light of the evidence produced by the prosecution there was a reasonable possibility, nay probability, that if the deceased had himself managed to get hold of the knife, he would have struck some blows with the knife on the accused. In the circumstances and in the situation in which the accused found himself there was bound to be in his mind a reasonable apprehension of death or grievous hurt being caused to him by the deceased unless he got out of the reach of the deceased;(3) the defencehas through the prosecution witnesses proved that the accused was acting in his right of privatedefence. It is reasonable to suppose that the accused thought in the critical situation in which he was that the deceased might wrest the knife from his hand and use it against him. The reasonable apprehension of death at the hands of the deceased could not thus be said to have left the mind of the accused. In the circumstances there was no case to meet."8.For reasons stated above, I take the view that the appellant is entitled to the right of privatedefence. The deceased has placed him in a critical position, so much so that in his frame of mind and age whatever the appellant has done cannot be said to be unreasonable and he must have done it with reasonable cause of apprehension of death or at least grievous hurt to himself. The benefit of doubt should be given to the appellant, taking into consideration that he was a juvenile at the time of the incident. In the premise, I allow the appeal. I hereby order so.End of DocumentDownloaded by Sidney (sdnaeyloveu@gmail.com)lOMoARcPSD|36580692