The right of private defence does not extend to inflicting more harm than necessary, and once the threat ceases, the defence is no longer available.

JUDGMENT

Che Mohd Ruzima Ghazali JCA:

Introduction

[1] Both respondents, Udi Anak Ambo (1st respondent/1st Accused) and Ngumbang Anak Abang (2nd respondent/2nd Accused) were charged for an offence of murder in the High Court of Sibu and the charge against them read as follows:

That you together, on 19 March 2017, between 12.20 am. and 3.30 am. at chilli farm, Ulu Sungai Enseluai Sare, 96100 Sarikei, in the District of Sarikei, in the State of Sarawak, in furtherance of the common intention of you all, did commit murder by causing the death of JAMPONG ANAK JON (NRIC: 650807-135913), and you thereby committed an offence punishable under s 302 of the Penal Code , and read together with s 34 of the same Code.

[2] At the end of the prosecution's case, the learned High Court Judge (LHCJ) made a finding that the prosecution had successfully proved a prima facie case against the respondents and called on them to enter their defence. At the end of the defence's case, the LHCJ decided that both respondents had successfully raised reasonable doubts and thus, both respondents were acquitted and discharged. Aggrieved with the said decision, the Public Prosecutor (the appellant) appealed.

[3] The appellant's appeal against the 1st respondent/1st accused was registered as No Q-05(LB)-351-09-2020 and the appeal against the 2nd respondent/2nd accused was registered as No Q-05(LB)-350-09-2020. Before us, both appeals were heard together.

[4] For ease of reference, parties will be referred to as follows, the 1st respondent/1st accused as R1, the 2nd respondent/2nd accused as R2, both R1 and R2 are respondents and the appellant as PP.

Prosecution's Case

[5] On 18 March 2017 at about 10.35 am, Cpl RF/136370 Suraya binti Sarakal (PW2) who was on duty at the enquiry office, Central Police Station, Sarikei received a phone call from Ting Shu Shien (PW9) who found a corpse facing downwards on the ground at his oil palm plantation site located at Sare. PW2 then lodged the police first information report bearing No Sarikei/000880/17 (Exhibit P15) and PW9 also lodged a police report on the same day, vide Police Report No Sarikei/000881/17 (Exhibit P63).

[6] On the same day at about 11.20 am., Inspector G 22179 Lim Tzer Feng (PW4) who was the officer on duty, together with his team went to the crime scene in a palm oil plantation at Ulu Sungai Enseluai, Sare, Sarikei. Upon inspection at the crime scene, PW4 and his team found a dead body that had decomposed without a right foot sole, and there were tattoos on the left thigh and the left shoulder. The deceased was later identified as Jampong Anak Jon (the deceased) by his son, Jacky Majit Anak Jampong.

[7] The post mortem on the deceased was conducted by Dr Norliza lbrahim (PW8) on 21 March 2017. Based on the post mortem examination, the cause of death of the deceased was determined to be scrotal injury (due to) sharp force trauma.

[8] The Investigation Officer, Inspector G 19727 Anbarasu a/l Gobi (PW3) who is the Investigation Officer arrested seven suspects, including the victim's brother, Ali anak Jon. After the investigation, R1 and R2 were charged with murder, committed in furtherance of their common intention towards the deceased.

[9] Eyewitnesses Benid anak Igat (PW14) and Narawie Manggie (PW15) testified that R1 stabbed the deceased while R2 held him from behind. They also stated that R2 later cut the deceased's right foot.

The LHCJ's Decision At The End Of The Prosecution's Case

[10] At the end of the prosecution's case, the LHCJ reminded himself of his duty as laid out in s 180 and s 173(f) of the Criminal Procedure Code . For the prima facie case and the maximum evaluation test, the LHCJ refer to High Court decision in PP v. Dato' Seri Anwar Ibrahim (No 3) , 1999 MarsdenLR 1331 and Public Prosecutor v. Ong Cheng Heong ; 1998 MarsdenLR 1891 ; [1998] 4 CLJ 209, Court of Appeal decision in Looi Kow Chai v. Public Prosecutor ; 2003 MarsdenLR 1502 ; [2003] 1 CLJ 734; [2003] 2 AMR 89 and Balachandran v. Public