Abu Mansor Ali JCA:

The appellant was charged before the learned Judicial Commissioner (as he then was) Tuan Hakim Hashim bin Dato' Haji Yusoff sitting with a jury on 19 September 1994 as follows:

Bahawa kamu, pada 26.12.1992 jam lebih kurang 12.05 tengah malam, di Jalan Jalak, Taman Sri Bahtera, Cheras, di dalam Wilayah Persekutuan Kuala Lumpur, telah melakukan kesalahan bunuh dengan menyebabkan kematian ke atas Konst. 114302 Rahim bin Manan, dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan.

At the conclusion of the trial on 30 September 1994 he was found guilty by the jury's unanimous verdict and he was convicted accordingly and sentenced to death.

The first and principal ground of the appellant was that the learned Judicial Commissioner failed to direct the jury adequately or at all on the differences between ss. 299 and 300 of the Penal Code. The learned Judicial Commissioner at p. 226 and 227 of the Appeal Record in his summing up read out verbatim the cases falling under s. 300.

The appellant's counsel further submitted that at p. 228 of the Appeal Record, the learned Judicial Commissioner then gave two examples that would amount to an act of murder within the definition of s. 300. The learned Judicial Commissioner then went on at pp. 228 and 229 of the Appeal Record to explain the "Definition" of culpable homicide not amounting to murder by listing out verbatim the exceptions in s. 300. The learned Judicial Commissioner made no attempt to explain to the jurors further that culpable homicide may not amount to murder:

(a) where the evidence is sufficient to constitute murder, but one or more of the exceptions to s. 300 apply

and

(b) where the necessary degree of mens rea specified in s. 299 is present, but not the special degrees of mens rea referred to in s. 300, Penal Code.

The failure by the learned Judicial Commissioner, the appellant's counsel further submitted, to so render such an explanation had thus prejudiced the appellant, in that it led the jury to believe that unless the accused could rely on any of the exceptions in s. 300, he could not otherwise be found guilty of culpable homicide not amounting to murder.

Learned appellant's counsel cited the case of Tham Kai Yau & Ors. V. Public Prosecutor [1976] where the facts of the case are very different from our present appeal. At p. 176 of this cited case Raja Azlan Shah FJ (as he then was) said and I quote, with respect:

A more difficult question that called for decision in this case was the offence of which the appellants should have been convicted. That was the other important ground of appeal, namely, that the learned trial judge failed to direct the jury properly or sufficiently or at all that where there is more than one inference which can reasonably be drawn from a set of facts, the inference most favourable to the accused should be adopted. In amplication of this ground of appeal we feel that it is the proper practice in cases of personal violence resulting in death for the judge to direct the jury on the right issue, in such a case as this, to arrive at a conclusion as to the degree of mens rea in the minds of the appellants.

It cannot be disputed that intention is a matter of inference.

Speaking of this cited case what were the set of facts spoken there? What is clear in the facts of this cited case was the background of estranged relationship between the deceased and appellant. It is alleged by the prosecution that the appellant and one other made an attack with choppers and saw on the deceased. On that fatal day of the incident, it was not denied there was a fight, which resulted in the death of the deceased. Appellants one and two had to go to the General Hospital for treatment, appellant three had a head injury and injury to an arm. In appellant four's house the police recovered the choppers used.

On the medical evidence, Raja Azlan Shah FJ commented thus and I quote:

Th