Ian H.C. Chin JC:

I. LIABILITY

A. The plaintiff's claim.

The plaintiff Daning Bin Laja sues the defendant K.K. Hj Tuaran Bin Majid for damages for having on 20 August 1980 "intentionally and maliciously without lawful excuse fired a shot" at him and caused him severe and grievous injuries.

B. Evidence for plaintiff.

The plaintiff (PW5), who is now 29 years old, testified that he came to Sabah in 1976. That it was on 20 August 1980 at about 5.30 p.m. that he wanted to go from Sekolah Menengah Kerajaan Agasi, Lahad Datu, to a sawmill. After failing to flag an empty taxi he stopped and got on the open part of a vehicle known as a pickup which had two other passengers. The pickup then proceeded towards the police complex. He was loosening his belt while standing up when he heard the sound of bullets being loaded into a gun and then saw the defendant pointing a shotgun at him. He was so shocked at the sight of the gun being pointed at him that he fell from the pickup onto the road while the pickup was moving. The pickup proceeded with its journey after he fell but later turned around and headed towards him. He was frightened and ran but the pickup overtook him. He saw the defendant who was holding the shotgun, jump from the pickup and then point the shotgun at him. He turned and ran after which he heard the sound of a gunshot. He felt his buttock being hit and he assumed it was a gun shot. He was thrown to the ground and became unconscious. It was in a hospital that he next regained consciousness. During cross-examination the plaintiff did not agree that the discharge of the gun was a result of an accident, that is he did not agree that the defendant fell when the pickup moved resulting in the discharge of the gun. When re-examined the plaintiff stated that he was 65 feet from the defendant when the defendant was chasing him and pointing the gun in his direction.

One Roskan Bin Juman @ Roskan bin Jeman (PW1), who was at the relevant time a policeman, testified that on 20 August 1980 at about 5.40 p.m., while in a taxi driven by a person called Bhogo, he saw the defendant jump from the back of a stationary pickup and fire a shot. The pickup was about one chain from the moving taxi. According to PW1, the defendant when jumping from the pickup was holding a shotgun aloft but he afterwards pointed the shotgun in a certain direction at which moment he (PW1) shouted "don't" ('jangan") at the defendant but he nevertheless heard the sound of a gunshot. He got down from the taxi and saw a person lying on the road. He then approached the defendant and took the shotgun from him and the defendant was alleged to have uttered the following words - "Inilah macam jagung di-bakar letupan" - (translated to mean - "it is like the explosion of a roasting corn"). He seized the gun from the defendant after which two persons, one called Hj Mumin (PW2), and the other Khairuddin, came. He took the defendant and the shotgun to the police station. He alleged that he saw the person being shot in the buttock and that the man was bleeding and unconscious. At that time the weather was fine, he could see clearly and there was not much traffic. It was put to him during his cross-examination that he was not there when the shotgun was discharged but that he came later on which he denied. He also maintained during cross-examination that he seized the shotgun from the defendant.

The second witness for the plaintiff was also a policeman. He is Haji Mumin Bin Haji Omar (PW2). He testified that it was on the said date and time that he and one Kairuddin were on their way home from Lahad Datu town to the new police complex at Jalan Kastam with him driving a car that he saw a body lying at the junction of Tengah Nipah road. He then parked his car on the left side of the road and walked towards the body which bore signs of injuries. He testified he saw the defendant, PW1 and a RELA (Angkatan Sukarela Rakyat) officer Adidil Muluk (hereinafter called "the driver").