Mohd Noor Ahmad JCA:

The appellant was convicted and sentenced to death for the murder of one Ting Kung Kui committed on 28 December 1997 between 12am and 12.30am at the five footway of shop no. 24 Bank Road, Sarikei, Sarawak. On appeal, we allowed the appeal, quashed the conviction and set aside the sentence but substituted with a conviction under s. 304(a) of the Penal Codeand sentenced him to 18 years' imprisonment with effect from the date of arrest.

The conviction of the appellant is mainly based on the ocular evidence of PW4 and PW5. The facts emerging from the evidence of these two main witnesses coupled with the evidence of the other prosecution witnesses may be summarized as follows.

On the night of 27 December 1997 around midnight, after an earlier altercation with PW3, the deceased and another Chinese man returned to PW3's burger stall in a motor van, each armed with a Nibong baton. The deceased approached PW3 while the other Chinese man waited beside the motor van. The deceased then hit at the left side of PW3's body with the baton. PW3 managed to embrace the deceased. While PW3 was embracing the deceased, PW4, PW5 and the appellant went to help PW3. PW4 used a chair to hit the deceased while PW5 and the appellant used an iron rod each to hit the deceased. After the hit, the deceased fell down pinning PW3 underneath him. Then the appellant approached the other Chinese man and hit him with an iron rod. The other Chinese man fainted.

Thereafter, the appellant went to the burger stall and returned with a knife to the place where PW3 and the deceased were struggling and stabbed the deceased. The post-mortem reveals that the deceased suffered a penetrating wound on the right chest which injured the liver and another penetrating wound at the back of the chest which injured the right lung and some 21 superficial cut wounds. The cause of the death was due to severe chest injuries with massive internal bleeding. The penetrating wound at the back of the chest caused the death.

The appellant in his defence admitted his involvement in the fight with the other Chinese man but denied stabbing the deceased with the knife. The learned judge held that there was neither evidence of grave and sudden provocation nor the right of private defence and that the defence of denial was an afterthought. And the appellant was convicted on the uncorroborated evidence of accomplices (PW3 and PW4) after the learned judge had warned himself of the danger of acting on such evidence.

We decline to interfere with the findings of fact by the learned judge. However, we are compelled to disturb his finding as to the guilt of the appellant by reason of his complete failure to address his mind on exception 4 to s. 300 of the Penal Code, that is to say, death caused without premeditation in a sudden fight. On the evidence, it is manifestly clear that there was a sudden fight or the fight was unpremeditated. Hence, the learned judge should have considered the defence available to the appellant under the exception. As there was a non-direction by the learned judge on this issue there was a misdirection. Therefore, we now take upon ourselves the task of analyzing the evidence towards this end. It is trite law that to invoke the exception, four requisites must be satisfied, that is to say, (i) it was a sudden fight, (ii) there was no premeditation, (iii) the act was committed in the heat of passion, and (iv) the assailant had not taken any undue advantage or acted in a cruel manner.

With regard to conditions (i) and (ii) the facts speak by themselves. On conditions (iii) and (iv), the evidence reveals that the acts of the appellant in the course of the melee leading to the stabbing of the deceased were done within very short intervals apparently with no opportunity for cooling off. As usual in the fight, the blood already heated up was warmed at every subsequent stroke and the voice of reasons was not heard on either side in the heat of passion. Under