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1. Pubalan a/l Peremal v Pendakwa Raya [2020] MLJU 1187

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 PUBALAN PEREMAL v PP
CaseAnalysis
| [2020] MLJU 1187 | [2020] 5 MLJ 442

Pubalan a/l Peremal v Pendakwa Raya [2020] MLJU 1187

Malayan Law Journal Unreported

FEDERAL COURT (PUTRAJAYA)

ROHANA YUSUF, PCA, AZAHAR MOHAMED, CJM, ABANG ISKANDAR ABANG HASHIM, CJSS, NALLINI
PATHMANATHAN, FCJ, VERNON ONG LAM KIAT, FCJ, ABDUL RAHMAN SEBLI, FCJ, ZALEHA YUSOF, FCJ,
ZABARIAH MOHD. YUSOF, FCJ AND HASNAH MOHAMMED HASHIM, FCJ
RAYUAN JENAYAH NO: 05(M)-118-05/2018(B)
13 August 2020

Gopal Sri Ram (Hisyam Abdullah, Abdul Rashid Ismail, Yasmeen Soh Sha Nisse, Karluis Quek, Azreen Ahmad
Rastom, Siti Nurani Md Zahidi and Mohd Nor Hafidzuddin Yusoff with him) (Rashid Zulkifli) for the Appellants.
Nik Suhaimi bin Nik Sulaiman (Umar Saifuddin Jaafar, Mangaiarkarasi Krishnan, Faizah Salleh, Ku Hayati Ku
Haron, Asmah Musa and Muhammad Azmi Mashud with him) (Attorney General’s Chambers) for the
Respondent.

Vernon Ong FCJ:

GROUNDS OF JUDGMENT

INTRODUCTION

[1] The appellant was charged with murder under s 302 of the Penal Code. After a full trial at the High Court and
hearing of 24 prosecution witnesses and 3 defence witnesses, the appellant was convicted on that charge and
sentenced to death. The appellant’s appeal to the Court of Appeal against the conviction and sentence was
dismissed. This is the unanimous judgment of this Court and it deals with the appeal against conviction and
sentence. It does not deal with the question of the unconstitutionality of the mandatory death sentence prescribed
under s 302 of the Penal Code. The constitutional point will be taken up in the separate written judgments of my
learned brother Azahar Mohamed, CJM and of my learned sister Nallini Pathmanathan, FCJ.

[2] The incident giving rise to this case took place at between 12:00 noon and 1:00 pm on 4.11.2013 at house No.
7, Jalan Timah 1, Taman Timah 1, 4300 Dengkil, Selangor. The house in question was occupied by the appellant
and his family together with two brothers in law, one Manmathan a/l Doraisamy (PW10) and Murali a/l Doraisamy
(the deceased). The appellant’s wife one Kalaiselvi a/p Doraisamy (PW18) is the elder sibling of the deceased. One
day before that date coinciding with the second day of Deepavali, the appellant planned to hold a gathering at his
house to celebrate Deepavali with his workmates. To that intent, the appellant’s workmates came to the house to
set up the tent and make preparations for the gathering. The preparations were disrupted by the appellant’s
brothers in law (one Murthi a/l Doraisamy (PW9), PW10, and the deceased) and their aunties because they
objected to the same. The appellant alleged that PW9 and PW10 assaulted him. However, notwithstanding the
disruption the party proceeded and ended at 2:00 am on 4.11.2013. With that background showing the estranged
relationship between the appellant and his brothers in law, it is alleged by the prosecution that the appellant
attacked the deceased with a sharp object.

[3] Later that day at about 1:02 pm, PW9 received a phone call from the appellant informing that he had stabbed
the deceased. PW9 subsequently contacted his cousin one Kanakaraaju a/l Ayer (PW14) and asked him to check
on the deceased’s condition at the appellant’s house. On arrival, PW14 found the deceased lying in a pool of blood
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on the floor in a room on the upper floor of the house. PW14 then made a police report at the Balai Polis Dengkil
and called for an ambulance.

[4] Meanwhile, PW10 after being informed of the incident by the appellant’s wife PW18, went to the house together
with one Pandiyan. They found the deceased in a conscious state and able to talk. In response to PW10’s
questions as to who assaulted him, the deceased said that it was the appellant alone that did it. Two other
witnesses, one Kalaivanan a/l Nadarajah (PW19) and one Gunentren a/l Pandiyan (PW17) who subsequently came
on the scene also heard the deceased uttered the appellant’s name when the deceased was asked what
happened.

[5] The deceased was brought to the Putrajaya Hospital and pronounced dead at 1:45 pm on 4.11.2013. According
to a post mortem examination of the deceased conducted by Dr. Siew Sheue Feng (PW4) a forensic medicine
specialist (“the pathologist”) on 5.11.2013, there were 19 incised wounds on the body of the deceased. The
pathologist testified that in his opinion the cause of death was “Multiple Incised Wounds.”
SUBMISSIONS

[6] The appeal against conviction was brought on one principal ground and it is this: that there were infirmities in
the evidence of the pathologist in that the evidence of the pathologist was lacking. Learned counsel for the
appellant argued that the conviction under the third limb of s 300 of the Penal Code could not be supported by the
evidence adduced by PW4’s evidence. Firstly, PW4’s witness statement is essentially a combination of the expert
evidence of PW4 and a reproduction of the post-mortem report. Both the witness statement and the post-mortem
report concluded that the cause of death was “Multiple incised wounds.” PW4 did not describe “the likely and
natural effects” of the injuries. Secondly, PW4’s oral evidence is very sketchy. During examination-in-chief, PW4
was asked “From the injuries sustain … have any survival chances for the deceased?” to which PW4 answered
“No.” However, in cross-examination SP4’s answers contradicted what he said in examination-in-chief:

Q: There no wound that is … in major part of the body?

A: Yes.

Q: Not wound to cause death of this person?

A: This wound more to defence wound.

[7] Learned counsel argued that PW4 did not say that the wounds would cause the death of the deceased,
contradicting his earlier evidence in examination-in-chief about the chances of survival. As a whole, PW4’s
evidence was skimpy, sketchy and devoid of any further elaboration because the learned DPP did not ask any
questions in re-examination of PW4. As such, the learned trial judge erred when he failed to appreciate that part of
PW4’s evidence which did not say that the wounds would cause death. That part of the evidence of PW4 is relevant
to show the degree of mens rea, whether the appellant had the necessary intention to cause death or injuries.

[8] Accordingly, learned counsel submitted that the infirmity of PW4’s evidence with regard to the prosecution’s
case is compounded by the fact that there was no evidence from PW4 on the nature of the injuries and its likely and
natural effects, citing Tham Kai Yau & Ors v PP [1977] 1 MLJ 174 (FC) in support. There was no evidence by PW4
to say that the injuries were sufficient in the ordinary course of nature to cause death.

[9] Learned counsel also argued that the need to address the degree of mens rea will inevitably bring into focus the
differences between ss 299 and 300 of the Penal Code, which point was underscored in the recent judgment of this
Court in Cheong Kam Kuen v PP [2013] 2 MLRA 1 (FC); which judgment opined that on the question whether the
appellants intended to cause such bodily injuries as they knew to be likely to cause death or such as is sufficient in
the ordinary course of nature to cause death, the medical witness should have been asked to give his opinion on
the nature of the injuries and its likely and natural effects. As such, the failure of the learned trial judge to discuss on
the degree of mens rea and the relevant limbs of s 300 is a serious misdirection. Accordingly, it was submitted that
the murder conviction ought to be set aside and substituted with one of culpable homicide falling under the first
part of s 304 of the Penal Code.

[10] In reply, learned Deputy Public Prosecutor (DPP) argued that there was ample and sufficient evidence through
PW4 to show that the injuries inflicted on the deceased caused the death of the deceased. PW4 testified that in his
opinion the cause of death was multiple incised wounds; of which there were altogether 19 deep incised wounds on
the deceased. PW4 also testified that from the injuries sustained there were no chances for survival for the
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Pubalan a/l Peremal v Pendakwa Raya [2020] MLJU 1187

deceased. Learned DPP also argued that Tham Kai Yau, (supra) is distinguishable as it dealt with the four cases
(paras. (a) to (d)) under s 300 whereas in this case, the prosecution was relying on only the third case (para. (c))
under s 300. Learned DPP conceded that even though there was no direct evidence as to which incised wound
caused death, the nature of the injuries inflicted on the deceased can be taken to be sufficient in the ordinary
course of nature to have caused the death of the deceased. At any rate, there was no miscarriage of justice and the
conviction is safe and appellate intervention is not warranted.
Role of a Forensic Pathologist

[11] The main thrust of the appellant’s argument relates to the infirmities of the evidence of PW4, the forensic
pathologist. We think that it is important to revisit the role of a forensic pathologist as an expert witness, especially
in the context of a criminal trial. Put simply, an expert witness is a person whose level of specialized knowledge or
skill in a particular field qualifies him to present his opinion about the facts of a case during legal proceedings. An
expert witness’s overriding duty is to provide independent, impartial, and unbiased evidence to the Court. The fact
that the expert witness is called by one party does not detract from the overriding duty to the Court. It is the duty of
an expert witness to assist the Court on the matters within his expertise. This duty overrides any obligation to the
person from whom he has received instructions or by whom he is paid: see O 40A r 2(1) & (2) of the Rules of Court
2012.

[12] In a book entitled Forensic Pathology, Principles and Practice (Elsevier Academic Press, 2005) co-authors
David Dolinak M.D, Evan W. Matshes, M.D, and Emma O. Lew, M.D presented an illuminating overview of the role
of a forensic pathologist. Their observations may be distilled as follows:
The forensic pathologist should understand what his role is in the legal process before providing testimony. As
a competent and acute observer in the laboratory he testifies as to his factual findings and opinions in a clear,
straightforward, unbiased, and professional manner.
The ‘testimony’ actually begins in the autopsy room where the anatomic studies are conducted to his
professional satisfaction. At this time, the forensic pathologist must recognize, collect, and preserve medical
evidence and prepare a report of such findings for possible future testimony.
On the stand, the forensic pathologist does not simply testify as to cause and manner of death. Much of the
forensic pathologist’s testimony revolves around autopsy findings and the correlation of the autopsy findings
with other case information. This requires expanding the case file and one’s critical review of the information to
the fullest. This may involve ancillary information collected to enhance findings and support conclusions.
The forensic pathologist interprets how a death came about and may be questioned on various aspects of the
death such as what type of instrument may have been used to inflict the injury, and how long an injured
individual may have been dead until he was found. The forensic pathologist’s observations must be of high
professional caliber and be thoroughly and well documented.
There are two key features of sound medical testimony: (i) scientific validity and (ii) personal impartiality. As for
scientific validity, the forensic pathologist is to restrict his testimony to facts objectively noted, analysed in detail,
and accurately recorded, and to opinions solidly derived from these data. The forensic pathologist’s
observations must be of high professional caliber and be thoroughly and well documented. Regarding personal
impartiality, the forensic pathologist, although usually called to testify by the prosecution, must give fair and
dispassionate testimony and must not permit himself to become a prosecuting witness. His testimony must not
be “prosecution minded” or “defense minded,” for he is not testifying for or against either party. The goal is to
present the truth as he sees it, willingly and unemotionally doing what is possible within the bounds of unbiased
and disinterested observations to help the court reach a just decision.
The value of the most competently performed autopsy is diminished in the courtroom if the information derived
from it is presented by a poor witness: one who mumbles, argues with counsel, or commits a number of other
violations of good and proper testimony.
The forensic pathologist’s opinion must never be biased for or against the prosecution or defence. It is a factual
presentation of evidence collected during the course of an entire death investigation.
The forensic pathologist does not win or lose a case. Although the anatomic findings and opinions are important
and necessary, rarely do they alone permit the court to come up with an enlightened decision. So long as the
forensic pathologist is mindful of his role, including what is expected of him, and knowing the limitations of what
he can say, and “knows that it is up to the attorneys to ask the appropriate questions to win or lose the
case,” then the forensic pathologist as an expert witness, through experience, will become more comfortable in
his role and provide effective, appropriate, and proper testimony.

[13] The importance about the independence and impartiality of the forensic pathologist as an expert witness was
underscored in Autopsy, The Memoirs of the World’s Greatest Medical Detective, Milton Helpern MD and
Bernard Knight MD (Star, 1979) at pp 61-65:
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“… People often don’t appreciate that an expert witness – or any witness, for that matter, isn’t called to the stand to root for
any particular side in the case. He’s there to describe what he found and to offer his conclusion and interpretation based on
all of those findings, whatever they may be. He is not there to win the case for one side or the other. If his conclusions were
adverse to the prosecution or the defence, they would not have put him on the stand to testify in the first place – and if his
medical opinion was all that adverse to the prosecution, then the case should never have gone as far as trial.”

“So, the medical witness shouldn’t be outrageously partisan, whatever side he is called for. We are sometimes accused of
getting up on the stand and saying only whatever happens to suit the party that calls us – but people don’t see the
occasions when we’ve told our clients that what we have to say won’t do them a damn bit of good – and maybe will do them
a lot of harm; they don’t see us then, because we don’t get put on any stand.”

DECISION

[14] In essence, the issue canvassed by learned counsel for the appellant relates to the question of what offence
the appellant should have been convicted. The appellant’s argument is premised on the ground that the learned trial
judge failed to consider that where there is more than one inference which can reasonably be drawn from a set of
facts, the inference most favourable to the appellant should be adopted.

[15] In cases of personal violence resulting in death it is necessary for the trial judge to have directed his mind on
the issue of degree of mens rea in the mind of the appellant. Whilst intention is a matter of inference, in actual
practice it is frequently a matter of considerable difficulty to come at a conclusion by application of this principle
because of the close proximity that the Penal Code makes between intention and knowledge. Admittedly, in the first
place, the provisions relating to murder and culpable homicide are very technical. Apart from the distinction
between intention and knowledge, the Penal Code also draws subtle distinctions between the degrees of intention
to inflict bodily injury. Further, if after a thorough evaluation of the evidence the trial judge comes to the conclusion
that the offence committed is not murder but culpable homicide, then it becomes necessary to determine whether
the appellant should be convicted for culpable homicide under the first or second part of s 304 of the Penal Code.
Distinction between ss 299 and 300 of the Penal Code

[16] We take the view that trial judges would do well to bear in mind the following passages on the important
distinction between ss 299 and 300 of the Penal Code elucidated succinctly by Raja Azlan Shah FJ (as HRH then
was) in Tham Kai Yau (supra) at p 176 of the report:

“Section 299, Penal Code enacts that a person commits culpable homicide, if the act by which the death is caused is
done: (a) with the intention to cause death; (b) with the intention of causing such bodily injury as is likely to cause death; (c)
with the knowledge that … the act is likely to cause death.”

“Section 300, Penal Code defines murder as follows. Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done: (1) with the intention of causing death; (2) 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;
(3) with the intention of causing such bodily injury to any person, and … is sufficient in the ordinary course of nature to
cause death; (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death, or
such bodily injury as is likely to cause death.”

“The words I have italicised show the marked differences between the two offences. Where there is an intention to kill, as in
(a) and (1). The offence is always murder. Where there is no intention to cause death or bodily injury, then (c) and (4)
apply. Whether the offence is culpable homicide or murder depends on the degree of risk to human life. If death is a likely
result, it is culpable homicide; if it is the most probable result, it is murder. Illustration (d) of section 300, Penal Code is a
case of this description. Where the offender knows that the particular person injured is likely either from peculiarity of
constitution, immature age, or other special circumstances, to be killed by an injury which would not ordinarily cause death,
it is murder. Illustration (b) of section 300, Penal Code is a good example. The essence of (b) and (3) is this. It is culpable
homicide if the bodily injury intended to be inflicted is likely to cause death; it is murder, if such injury is sufficient in the
ordinary course of nature to cause death. Illustration (c) given in section 300, Penal Code is an example. It is on a
comparison of these two limbs of section 299 and section 300 that the decision of doubtful cases as the present must
generally depend. The distinction is fine, but noticeable. In the last analysis, it is a question of degree of probability.”

“A comparison that frequently arises in the application of sections 299 and 300 is the tenuous contention that section 299 is
not a substantive offence and therefore an offence is either murder or culpable homicide according to whether or not one
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of the exception to section 300 apply, and if by reason of the absence of the necessary degree of mens rea an offence
does not fall within section 300, it cannot be one of culpable homicide not amounting to murder punishable under section
304, Penal Code, but would amount to causing grievous hurt. In our view, the correct approach to the application of the two
sections is this. Section 299 clearly defines the offence of culpable homicide. Culpable homicide may not amount to
murder (a) where the evidence is sufficient to constitute murder, but one or more of the exceptions to section 300, Penal
Code apply, and (b) where the necessary degree of mens rea specified in section 299 is present, but not the special degree
of mens rea referred to in section 300. Penal Code. We would like in this connection to express the need to bear in mind
that all cases falling within section 300, Penal Code must necessarily fall within section 299, but all cases falling within
section 299 do not necessarily fall within section 300. The first part of section 304, Penal Code covers cases which by
reason of the exceptions are taken out of the purview of section 300, clauses (1), (2) and (3) but otherwise would fall within
it and also cases which fall within the second part of section 299, but not within section 300, clauses (2) and (3). The
second part of section 304, Penal Code covers cases falling within the third part of section 299 not falling within section
300, clause (4).”

[17] For completeness, ss 299 and 300 (sans illustrations and explanation notes) define culpable homicide and
murder as follows:

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 knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide.

Murder

300.

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 harm 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.

[18] According to the post-mortem pathologist’s report, there were altogether 19 incised wounds on the deceased
though none of them were fatal wounds. The post-mortem report only stated that the cause of death was “multiple
incised wounds.” In view of the nature of the injuries sustained by the deceased and the time and place of the
incident, there was evidence of an intention on the part of the appellant to cause bodily injury to the deceased. In
the light of such evidence, we think that it is important for the trial judge to appreciate the distinction between the
definitions of culpable homicide and murder under ss 299 and 300 of the Penal Code before arriving at his
decision on the offence of which the appellant should have been convicted.

[19] In the particular circumstances of this case, the important question to be determined was whether the
appellant intended to cause such bodily injuries as he knew likely to cause death or such as is sufficient in the
ordinary course of nature to cause death. Unfortunately, in the present case, the critical question remains
unanswered; in our view, PW4 the forensic pathologist should have been asked to give his opinion on the nature of
the injuries and its likely and natural effects, but he was not asked any questions on this crucial point. Accordingly,
the evidence in this respect is wanting. As there is no evidence on the nature of the injuries and its likely and natural
effects, then the offence of which the appellant should have been convicted is culpable homicide for causing such
bodily injury as is likely to cause death and not murder. Accordingly, we set aside the conviction for murder, and
substitute it with one under limb (a) of s 304 of the Penal Code.
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[20] We take this occasion to stress in passing that the outcome of a prosecution on a charge for murder does not
turn solely on the testimony of the forensic pathologist. The forensic pathologist does not carry the burden of the
case. His testimony is a factual and objective presentation of his autopsy findings and his opinions on the
correlation of the autopsy findings with other case information. Even though he is called by the prosecution to
testify, he is first and foremost an expert witness who should be impartial, objective and independent. In the final
analysis, whether the appellant intended to cause such bodily injuries as he knew likely to cause death or such as is
sufficient in the ordinary course of nature to cause death so as to constitute the offence of murder, are questions
which should have been asked of the forensic pathologist by the learned DPP during the trial.

[21] After hearing of submissions on sentencing, we imposed a sentence of 15 years imprisonment to take effect
from the date of his arrest.

End of Document