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CASE OF THE WEEK

CRIMINAL LAW: Murder - Defence - Whether accused had necessary mens rea or intention to stab deceased - Whether accused raised reasonable doubt on charge - Whether safe to convict accused under s. 302 Penal Code - Penal Code, ss. 302, 304(a)

CRIMINAL LAW: Voluntarily causing hurt - Elements of offence - Whether satisfied - Whether evidence against accused was challenged - Penal Code, s. 324


PP v. BERNADITO L ALENJANDRI JR
HIGH COURT SABAH & SARAWAK, SANDAKAN
LEE HENG CHEONG JC
[CRIMINAL TRIAL NO: S45-04-2011]
11 JULY 2012

The accused was charged under ss. 302 and 324 of the Penal Code (`Code') for the offences of murdering (`the first charge') one Renato S Harder (`the deceased') and voluntarily causing hurt (`the second charge') to one James Jimeno (`PW5'). The facts showed that the accused reprimanded his wife upon seeing one Aling touching his wife, while they were at a birthday party of a colleague, Joel. Subsequently, whilst having drinks with his friends, Aling approached the accused and hit his head, and Aling was joined by others who also punched, kicked and hit the accused. The accused managed to escape and ran back home and headed back to Joel's house with a parang. It was the case of the accused that, when he reached the entrance of Joel's house, he was hit at the back of his head by someone and as a result he stumbled. It was the accused's further contention that, in the course of falling down towards the direction of the deceased who was standing in front of him, the parang which he held in his right hand struck the deceased and fatally injured him. The accused averred that it was not his intention to stab the deceased. The question before the court was whether the accused had raised a reasonable doubt on the charges preferred against him.

Held (convicting accused on culpable homicide not amounting to murder and voluntarily causing hurt):

(1) The accused's line of defence was corroborated by the medical report and in the absence of any other medical evidence to the contrary, this supported the evidence of the accused that he was hit at the back of his head before he stumbled and fell. The former statement by the accused had strengthened the defence's story that the accused was hit at the back of his head before he stumbled and the weapon he held in his hand landed towards the direction of the deceased. (paras 13 & 15)

(2) There was indeed doubt as to how the deceased was stabbed which was a very important fact to consider in determining the state of mind or mens rea of the accused when the incident happened. The most favourable version should be drawn in favour of the accused. The pathologist's evidence on the nature of the wound corroborated with that of the accused's version. The place of the incident was a small cubicle and given the accused's height, it was difficult to conclude that the said fatal wound could be inflicted with intention. In this light, the accused was at all probability not liable for murder under any of the clauses of s. 300 of the Code and hence it was not safe to convict the accused under s. 302 of the Code. (paras 26, 31-32 & 39)

(3) However, based on the facts and the circumstances of the present case, the accused had committed an offence under s. 304(a) of the Code. From the facts that the accused went back to his house and took a parang, it could be easily inferred that he had an intention to cause bodily injury which was sufficient in its ordinary course of nature to cause death and he did in fact cause a death. (paras 36 & 39)

(4) As for the second charge, the accused had failed to raise any reasonable doubt on the charge of voluntarily causing hurt to PW5 with a dangerous weapon, a parang. The accused had also failed to dispute or challenge PW5's evidence that the accused had attacked and caused the injury to him. (paras 37-38)

(5) The accused is sentenced to 18 years' imprisonment for the reduced first charge and 2 years' imprisonment for the second charge, which shall run concurrently. (para 40)

Case(s) referred to:

Chan Kwee Fong v. PP [2010] 3 CLJ 671 CA (refd)

Karthiyayani & Anor v. Lee Leong Sin & Anor [1974] 1 LNS 61 FC (foll)

Mohamad Radhi Yaacob v. PP [1991] 3 CLJ 2073; [1991] 1 CLJ (Rep) 311 SC (refd)

PP v. Megat Shahrizat Megat Shahrur [2011] 8 CLJ 893 FC (refd)

PP v. Soew Wei Hoong [2009] 1 LNS 1504 HC (foll)

Tham Kai Yau & Ors v. PP [1976] 1 LNS 159 FC (refd)

Legislation referred to:

Criminal Procedure Code, s. 180(1)

Penal Code, ss. 300, 302, 304(a), (b), 324

Counsel:

For the prosecution - Silanny; DPP

For the accused - Margaret Hon; M/s Margaret Hon & Con

Reported by Najib Tamby

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