The appellant's conviction for murder was upheld, as the defences of provocation and intoxication were inadequately substantiated against the evidence of eyewitnesses.

JUDGMENT

Ravinthran Paramaguru JCA:

Introduction

[1] The appellant was charged with the murder of his co-worker. The charge read as follows:

That you, on 27 June 2017, at about 8.00 pm., in front of a house without number, in the District of Sibu, in the State of Sarawak, did commit murder of one Entermang anak Julin, and thereby committed an offence punishable under s 302 of the Penal Code ."

[2] At the conclusion of the case for the defence, the appellant was convicted and sentenced to death by the learned Judicial Commissioner. He has appealed against this decision.

Case For The Prosecution

[3] The facts of the prosecution's case as summarized by the learned Judicial Commissioner are as follows. The appellant is a construction worker. He and three of his co-workers, ie Entermang anak Julin (the deceased), Ricky anak Richard (PW 4) and Michael anak Chabu (PW 12) gathered to drink a local alcoholic beverage known as "Ice Padi" on the morning of 27 June 2017 inside an empty wooden house. The workers took turns buying drinks. Two others workers joined them later but left by the afternoon. The appellant, the deceased, PW 4 and PW 12 continued their marathon drinking session until 8 pm. when tragedy ensued. PW 4 and PW 12 gave crucial eye-witness evidence about how the deceased met his end at the hand of the appellant.

[4] PW 4 said that around 8 pm, when the appellant and the deceased returned from the provision shop nearby, deceased said as follows to the appellant:

"enti dik nadai duit anang mayuh jakok" (if you don't have any money, you don't talk too much).

[5] This statement caused a quarrel between the appellant and deceased. PW 4 and PW 5 were lying down outside the wooden house where they were drinking. PW 4 heard the deceased saying that he wanted to go home. The appellant pushed the deceased to the ground. Then he hit the head and face of the deceased many times with a piece of wood. The deceased did not fight back as he was drunk. After that, the appellant threw the deceased into a nearby drain. PW 4 said that there was water in the drain though it was not raining heavily. He said the deceased was thrown face down into the drain. PW 4 was able to witness the incident because there was light from the street lamps. Furthermore, the distance between the spot where the deceased was bludgeoned and him was about six yards. PW 4 was too afraid of the appellant to offer any assistance to the deceased whom he believed was unconscious after the attack.

[6] The brutal attack on the intoxicated deceased was recounted by PW 4 as follows:

Q: Can you recall how many times did Tony hit Akik with a piece of wooden plank?

A: I can't recall how many times but I know many times.

Q: Can you describe to the Court the situation when Tony hit Akik with a piece of wooden plank?

A: After Tony pushed Akik and Akik fell on the cement floor face down, then Tony turned Akik and hit Akik with the wooden plank.

Q: Did you manage to see at which part of Akik's body took the beating?

A: Mostly at the head and face.

[7] After the appellant threw the deceased into the drain, he went home. PW 4 and PW 12 also went to their rooms PW 4 was afraid to call the police immediately after the incident as he was too drunk and he was afraid of being a suspect in the assault on the deceased. The body of the deceased was discovered by two boys the next afternoon and the police were alerted. PW 4 carried the deceased out of the drain and placed him on the cemented pathway upon being instructed by the police that evening. He thought that the deceased had died by that time.

[8] PW 12 gave similar evidence as PW 4. He also saw the appellant attacking the deceased with a piece of wood. He wanted to help the deceased but PW 4 told him not to get involved. PW 12 said the appellant "kept on hitting the deceased" with the piece of wood. During crossexamination he agreed to a put question that the appellant hit the deceased only once. However, during re-examination, he said that the deceased