The Defence Of Intoxication In The Case Of Murder

FACULTY OF LAW AND INTERNATIONAL RELATIONS

CRIMINAL LAW I LLB20403 INTOXICATION AS A DEFENCE TO MURDER

PREPARED FOR MADAM ASIAH BINTI BIDIN

PREPARED BY GROUP 14 NO. NAME

MATRIC NO

1

AMER HAIQAL BIN MOHD YUSOF

049627

2

KANG ZHEN LEONG

049757

3

NURSAIDATUL ATHIRAH BT ABDUL NAIM

049436

4

SHAMEER HAZIQ BIN SHAHARUDDIN

051544

TABLE OF CONTENTS

Page

ABSTRACT……………………………………………………………………………..………1 1.0 INTRODUCTION…………………………………………………………………..………2 1.1 HISTORICAL BACKGROUND…………………………………………..………2 1.2 DEFINITION……………………………………………………………….………2 2.0 THE REQUIREMENT OF CRIMINAL LIABILITY………………………………………4 3.0 THE CRIME OF MURDER……………………………………………………….…....…4 4.0 THE DEFENCE OF INTOXICATION………………………………………….…...……6 4.1 INVOLUNTARY INTOXICATION…………………………………………..……7 4.2 VOLUNTARY INTOXICATION………………………………………………..…8 5.0 THE APPLICATION OF THE DEFENCE OF INTOXICATION IN THE CRIME OF MURDER IN MALAYSIAN CASES. …………………………………………………………9 5.1 KENNETH FOOK MUN LEE V. PUBLIC PROSECUTOR……………...……9 5.2 ENTHIRAN RAJOO V. PP……………………………………………...………11 5.3 PROSECUTOR V PAUL LAGANG MALIT……………………………………11 5.4 PUBLIC PROSECUTOR V. WILLIAM JOSEP AK AH KIANG………..……13 5.5 PUBLIC PROSECUTOR V. ALDWIN ROJAS SAZ…………………….……14 6.0 CONCLUSION……………………………………………………………………………15

ABSTRACT

The issue of intoxication as a defence to any offence had always been discussed whether it is a defence or not. This issue keeps going on until early in the nineteenth century. Today, as a result of judicial decisions extending over the last hundred and nineteen-years, intoxication can be used as one of the defences of an offence, in this context, murder. In this study, we discussed about the requirement of criminal liability, the crime of murder and the defence of intoxication. We also show how the application of the defence of intoxication in the crime of murder in Malaysia cases. The main statue that were used are The Malaysia Penal Code and Criminal Procedure Code. It is hoped this study will give others the understanding about the use of intoxication as a defence for murder

Keywords: Intoxication, Murder, Penal Code, Criminal

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1.0 INTRODUCTION 1.1 HISTORICAL BACKGROUND The defence of intoxication firstly known as drunkenness in English Law. The plea of intoxication is used as a common-law defence to crime is a comparatively recent one. Until early in the nineteenth century the common-law rule was that intoxication is never a defence, but as a result of judicial decisions extending over the last hundred and nineteen years it has come to be allowed as a defence in certain cases. Case-law supplies sufficient material for tracing the development of this defence since the beginning of the nineteenth century, but for its earlier history we have to rely chiefly on the fragments on intoxication found in the institutional writers. The earliest mention, in English legal literature, intoxication in its relation to criminal responsibility is to be found in the Penitential of Theodore, Archbishop of Canterbury from 668 to 690 A.D. There it is said that whosoever shall have killed a man while drunk shall be guilty of homicide; he commits one fault by self-indulgence and another by killing a Christian. and penitence by fasting is enjoined to restore that guilty man to the favour of the Lord. But elsewhere in Theodore and in the Penitential of Ecgberht, Archbishop of York from 735 to 766 A.D., homicide committed in drunkenness is declared subject to the same penance as homicide committed in anger. It would seem difficult to reconcile these texts, and conflict of texts in the law of the Church, as in all legal literature, especially ancient and medieval, is nothing unusual. The reason for the liability of the drunkard for homicide as given in the Penitential of Theodore is too clear to admit of any extenuating circumstances.

1.2 DEFINITION Generally, intoxication can be defined as a state in which a person's normal capacity to act of reason is inhibited by alcohol or drugs. An intoxicated person is incapable of acting as an ordinary prudent and cautious person would act under similar conditions as they are in the state of out of consciousness Intoxication can affect criminal responsibility in several ways. In some cases, it can result to a total of complete acquittal and in other circumstances, the accused may receive a qualified acquittal This is because in proving whether someone is guilty for an offence, intention and guilty mind is one the element that needs to be considered.

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The defence of intoxication is spelt out in section 85 and 86 of the Penal Code. In section 85(1), it stated that it is provided in this section and section 86 that intoxication shall not constitute a defence to any criminal charge. Meanwhile in section 85(2) it stated that intoxication shall be a defence to any criminal charge if by the person that were charged at the time of the act complained that he did not know that such act was wrong or did not know what he was doing. It later explained in the subsection 2(a) and (b). a) the state of intoxication was cause without his consent by the malicious or negligent act of another person; or (b) the person charged was, by reason of intoxication, insane, temporarily or otherwise, at the time of such act or omission. Meanwhile in section 86, it stated that if the defence falls under subsection 85(2) is established, then in a case falling under paragraph (a) thereof the accused person shall be acquitted, and in a case falling under paragraph (b), section 84 of Penal Code and sections 347 and 348 of the Criminal Procedure Code (Act 593) shall apply. According to this provision, there are three forms of the defence of intoxication that can be extracted. The first is where a third party had maliciously or negligently caused the accused to become intoxicated to the extent of not knowing the act to be wrong or what he or she was doing. This is sometimes described as involuntary (or non self-induced) intoxication. The second form of defence is where the accused was so severely intoxicated as to have been insane at the time of the alleged crime. Thirdly, an accused will be acquitted of a crime which has intention as an element should intoxication have prevented him or her from having that intention. As we shall see, the courts have regarded this third form as a true defence which the accused has to prove on a balance of probabilities, as opposed to one which the prosecution has to rebut beyond a reasonable doubt as part of proving the fault element of the crime charged.8 For the second and third forms, the intoxication could have been voluntary (or selfinduced).1

1

This paragraph was quoted with approval by the Singapore High Court m PP v Tharema Vejayan s/o Govindasamy {2009] SGHC 144 at [106].

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2.0 THE REQUIREMENTS OF CRIMINAL LIABILITY In general, for crime to occur, two elements must be present simultaneously. The first element is actus reus which is the conduct of a forbidden act or causing forbidden harm committed by the wrongdoer. This physical element can either be in the form of commission, an actual performance of an act or omission, failure to perform an act which is imposed by the law. The wrongful conduct must be done voluntarily in order to establish actus reus. Any bodily movements and conduct done in the state of unconsciousness do not constitute a voluntary act. This principle can be illustrated in the case of R v Quick2 where in this case, the defendant who suffered a diabetic illness was charged of assault. The assault occurred whilst the defendant was in a state of hypoglycaemia which is a condition of low blood sugar level due to an excess of insulin. The court held that the defendant should have been acquitted on the ground of automatism. His unconscious state had been the result of external factors which is the taking of insulin thus, act was done involuntarily. The second requirement is mens rea, which refers to a blameworthy state of mind accompanied a guilty act. This mental element could exist in several forms such as the intention and voluntariness to commit the wrongful act, the reckless and negligent conduct of the wrongdoer or the knowledge that an act would amount to crime. The requirement of these two elements is summarized in the Latin maxim ‘actus non facit reum, nisi mens sit rea’ which means that an act does not makes a person guilty of committing an offence unless the act is followed by a guilty state of mind. However, the use of the maxim does not universally apply to all crimes because the definition and punishment of each crime is different. This is because, there are crimes where mens rea is not required to be proven. For instance, in strict liability offences liability could be imposed in the absence of mens rea. To determine the need to prove both elements of actus reus and mens rea, the court will refer to the definition of the particular offence to know the nature of the specific criminal conduct.

3.0 THE CRIME OF MURDER Under the common law, murder was defined as an unjustified killing that was committed with intention and malice aforethought. Malice aforethought is when a person

2

[1973] QB 910.

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intends to kill another without legal justification or excuse. In most states, malice aforethought is not limited to intentional killings because it can also exist if the wrongdoer intentionally inflicts a serious bodily harm that causes the victim's death or acted in a manner which is extreme, reckless disregard for the victim's life and results in the victim's death. In Malaysia, the crime of murder is defined and prescribed under the Penal Code. Thus, we rely more on the definition of murder under the statute rather than common law. In defining Murder, the Penal code defines the crime of culpable homicide foremost in section 299 and subsequently prescribed the act that would not amount to culpable homicide as murder in section 300. Referring to section 300 of the Penal Code, Murder can be defined as an act of causing death with the intention to commit it or secondly, an act done with the intention to cause bodily injury with the knowledge that such injury might cause death3. Thirdly, it also a crime of murder when an act was done with the intention to cause bodily injury and such bodily injury was inflicted sufficiently to cause death in an ordinary cause of nature or fourthly, an act committed by a person with the knowledge that the act was imminently dangerous that it will cause death or such bodily injury which is likely to cause death and commits such acts without any justification.4 Generally, the crime of murder and culpable homicide is of the same species in the sense that both offences have the same effect which is causing death to another. An act amounting to murder falls under the category of culpable homicide but an act amounting to culpable homicide does not fall under murder.5 Moreover, the crime of murder is distinguishable from the crime of culpable homicide through the requirement of mens rea. This can be referred to in the case of Tham Kai Yau v PP 6 where the court held that if the case falls within the degree of the required element of mens rea specifically stated under section 299, it will be under the offence of culpable homicide because the requirement of mens rea under Section 300 of the Penal code to constitute murder is of a different and higher degree. Furthermore, murder is an act of unlawful killing with direct intention and malice afterthought to cause death or grievous bodily harm to another whereas in culpable homicide the component of malice afterthought and

3

Penal Code. Penal Code. 5 PP v Fang Jin Zhong (2015) 10 CLJ 628. 6 [1977] 1 MLJ 174. 4

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direct intention did not exist. The crime of murder is punishable by death or imprisonment or fine as referred to in section 302 of the Penal Code.7 Based on the definition mentioned above, it can be deduced that both elements of actus reus and mens rea must be proven to impose liability in the crime of murder. Referring to section 300 of the Penal code provides that culpable homicide is murder when the act of causing death is committed with the intention of causing death. Thus, the intention to cause death is of outmost important element to establish the crime of murder. Such intention comes under the principle of mens rea. In determining the intention of the wrongdoer, it is primarily a question of fact because it varies according to the circumstances of each case. The court will make an inference by considering factual indications such as the reason such act of murder was committed, the weapon used, the degree of force inflicted to the victim and the injury suffered by the victim.

4.0 THE DEFENCE OF INTOXICATION Mainly, an intoxicated person is not capable of acting as an ordinary wise and attentive person would act under similar conditions8. Intoxication can occur when an accused consumes drugs or alcohol. It is important to understand how far accused is damaged by the intoxication and how this may affect upon their conduct, if accused want to used intoxication as defence. The accused need to prove these following elements to succeed in the defence of intoxication to exempt him from his liability in crime, which are accused at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and the condition of intoxication was created without his permission by the harmful or careless act of another person or accused charged was by basis of intoxication insane, for a short time or otherwise, at the time of such act or omission9. In the case of Francis Antonysamy v PP [2005]10, the court is required to examine the appellant’s conduct earlier to, at the time of and after the commission of the offense. According to the Court of Appeal Judge, Augustine Paul, as he then was,

7

Penal Code. Hamdan NN, “Can Intoxication Become Defense?”. Retrieved from https://www.researchgate.net/publication/313503114_Can_intoxication_become_defense accessed December 2, 2019 9 3 MLJ 893 10[2005] 2 CLJ 481 8

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“It must be observed that what is in issue in a defence of intoxication is the state of mind of the person concerned in order to determine whether he could have formed the necessary intention. The best proof to show his condition of mind is his act before, at particular moment and after the offence as different people react differently to the same blood alcohol level. Needless to say, scientific evidence is significant to explain the conduct of the person. In other words, it will corroborate the evidence of conduct. Its absence cannot therefore be fatal.”. As to evidence of intoxication, the bare statement of the accused that he was drunk at the time of the act or omission complained of is inadequate to establish the defence of intoxication under the Penal Code section 85 or 86 which was stated in the case of Ismail bin UK Abdul Rahman v PP11. In the case of Abdul Aziz bin Mohamed Shariff v PP12, the court held that to prove intoxication it is incumbent upon the defence to adduce sufficient proof to persuade the court that this had give the accused incapable of building the required intention or knowledge to carry out the murder. In the instant case, the evidence of the appellant having consumed a large quantity of alcohol and the opinions of relatives, who were not medically qualified, that the appellant’s drunk condition was inadequate to establish a possible defence of intoxication. Further on the facts and other evidence, even if the appellant had consumed a large quantity of alcohol before committing the crime, he was not intoxicated to the extent that his intention to carry out the crime had lessened. Medical tests determining the blood alcohol level of the accused are relevant in deciding whether he was intoxicated. There two types of defence of intoxication which are voluntary intoxication and involuntary intoxication. 4.1 INVOLUNTARY INTOXICATION Intoxications are defined as unintentional where accused intentionally absorbs intoxicating substances if they are commonly intoxicating, for examples are drug and alcohol. Element of involuntary intoxication is stated under section 85(2)(a) of the Penal Code: “the condition of intoxication was created without his permission by the malicious or careless act of another person”

11 12

[1974] 2 MLJ 180 [2010]6 MLJ 759

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In English case of R v Allen [1988]13, the accused had drunk wine because he had no idea that it was very strong home-made wine. He then committed sex crimes but said he was so drunk that he didn't know what he was doing at that time. Court of Appeal concluded that it was not involuntary intoxication. Accused was then treated like being drunk voluntary.

4.2 VOLUNTARY INTOXICATION Where the accused has voluntarily taken a substance and is aware that the substance is alcohol or an illegal drug then he or she is voluntarily intoxicated14. A person who is addicted to drugs or alcohol will be treated as voluntary intoxication. The Majewski rule is voluntary intoxication may provide a partial defence to accused lacking the intention of a specific intent crime but is no defence to a crime of basic intent whether accused has mens rea or not. In crimes of basic intent, the prosecution may prove intention, foresight or any other state of mind. It must simply prove that accused would have had mens rea if he had not been intoxicated. The ‘defence’ of intoxication will only succeed where accused failed to form the mens rea for the offence because of the intoxication15. For example, if Raju intentionally stabbed Maya in a pub, could Raju argue that he was intoxicated and therefore have a defence? The answer to this is no. Raju will not be able to plead the defence of intoxication even to an offence of specific intent. The reason for this is that the example clearly states that he intended to stab Maya. A drunken intent is still intent. If accused successful in proving the defence of intoxication, the effect is stated in section 86 of the Penal Code16 which are: (1) Where the defence under subsection 85(2) is formed, then in a case falling under paragraph (a) thus the accused person shall be released, and in a case falling under paragraph (b), section 84 of this Code, sections 347 and 348 of the Criminal Procedure Code [Act 593] shall affect.

(2) Intoxication shall be considered for the reason of deciding whether the person accused of had created any intention, specific or otherwise, in the absence of which he would not be blameworthy of the offence. 13

Crim LR 698 Herring J, Criminal Law: Text, Cases, and Materials (5th edn Oxford Univ Press 2012) 156 15 Hendy J and Hutchinson O, Optimize Criminal Law (1st edn Routledge 2015) 275 16 Penal Code. 14

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(3) For the purpose of this and the preceding section “intoxication” shall be deemed to include a state produced by narcotics or drugs.

Based on the case of Kenneth Fook Mun Lee v PP17, the Federal Court held that the application of section 86(2) of the Penal Code requires that if there is evidence of intoxication before a trial judge, he should take such fact into account and determine whether it is weighty enough to leave him with a reasonable doubt about the accused person’s guilty intent. The provision and intoxication should not be construed as providing an unqualified exception or excuse for an offence which requires intention, specific or otherwise. Some other local cases appear also not to have recognised that where intoxication negatives intention it can provide a complete defence and instead have viewed it merely as a factor in mitigation.

5.0 THE APPLICATION OF THE DEFENCE OF INTOXICATION IN THE CRIME OF MURDER IN MALAYSIAN CASES. 5.1 KENNETH FOOK MUN LEE V. PUBLIC PROSECUTOR18. In this case, the accused was found to be guilty of murder punishable under section 302 of the Penal Code and were sentenced to death. The High Court had, earlier on, ruled that the prosecution had made out a prima facie case of murder under section 300(d) of the Penal Code. In so ruling, the judge was satisfied that the twin requirements subject to clause (d) of section 300 of the Penal Code has been established, albeit the testimony of prosecution witnesses that the accused could have been drunk at the material time. At the end of prosecution case, the judge held the accused was intoxicated at the material time based on the balance of probabilities rather than accepting the sole defence raise by accused namely, the defence of hypoglycaemic attack. This was despite the fact that the allegation of drunkenness was contradicted with the testimony of prosecution witnesses as well as the accused himself. The judge proceeded to find that although the intoxication had negated the requisite intention, nevertheless the facts were sufficient to establish a case under section 304(b) of the Penal Code. The High Court thus found the accused guilty of an offence under section 304(b) of the Penal Code and sentenced him to eight years’ imprisonment from the date

17[2007] 18

2 MLJ 130 [2007] 2 MLJ 130

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of arrest. The prosecution appealed against the decision and the Court of Appeal reversed the decision of the High Court, found the accused guilty of murder and sentenced him to death. The accused appealed to the Federal Court. The Federal Court in this case, affirms the decisions of the Court of Appeal held that section 300(d) of the Penal Code involves merely knowledge and not intention, does not come within the ambit of section 86(2). It was further considered that intoxication is irrelevant in securing a conviction for murder if knowledge as per in subsection (d) is proved beyond reasonable doubt by the prosecution. This judgment was based on the principle of Juma’at bin Samad v. PP (supra) where it was stated that section 86(2) applies only where the mens rea for the offence is intention, in contradistinction to offences requiring other forms of mens rea set out in the Penal Code, for example, knowledge or rashness. The result is somewhat disturbing, for instance, section 86(2) would apply to a charge of murder under section 300(a), (b) or (c) but not to a charge of murder under section 300(d). Furthermore, where intoxication is in issue, the process of determining the state of mind of an accused person at the time of commission of the offence for which he is charged should be by way of inferences from the known relevant facts and on totality of the surrounding circumstances including his conduct at the material time and taking into account of his intoxicant state. The application of section 86(2) requires the judge to take into account the evidence of intoxication and determine whether it is weighty enough to leave the judge with reasonable doubt about the accused person’s guilty intend. section 86(2) and intoxication should not be construed as providing unqualified exception or excuse for an offence which requires intention, specific or otherwise. Subsection (d), being one of the categories of mens rea for the offence of murder as defined under section 300 of the Penal Code, should not be disregarded even if section 86(2) is raised. This is because under section 86(2), the fact of intoxication is only a circumstance to be taken into account in proving intention where the mental element of an offence is one of intention specific or otherwise. If knowledge is required mental element section 86(2) does not apply. A plain literal interpretation of subsection (d) under section 300 of the Penal Code allows no other reasonable meaning other than knowledge is another element of mens rea for the offence of murder. Subsection (d) of Section 300 of the Penal Code should not have been omitted by the trial judge in his overall consideration of the case simply on the basis that intoxication was in issue and section 86(2) could be invoked.

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5.2 ENTHIRAN RAJOO V. PP19 Accused was charged for murder, under section 302 of the Penal Code. The deceased came to the accused's house and consumed alcohol together. The accused's daughter testified that she was sleeping when she realised the deceased was lying next to her but he did not molest her. The accused shouted at the deceased and the latter left her daughter's room. Even though the daughter could not see what was happening, she heard the accused scolding the deceased and a faint sound of an object being thrown. The next day, the deceased's body was found in a dried-up ditch. Following the arrest of the appellant, a bloodstained hammer was recovered from the kitchen cabinet of his house. The DNA profile from the blood matched with that of the deceased. Accused testified that the deceased tried to rape his daughter and therefore he had hit the deceased using a hammer and later dumped the deceased's body into the ditch. Trial court found the accused guilty and was sentenced to death. The issue is whether defence of intoxication can be applied. Court of appeal dismissed the appeal and affirming conviction and sentence of High Court. Defence of intoxication under section 85(2) of the Penal Code was devoid of any merit on account that his state of intoxication was not forced upon him and upon the accused's admission in cross-examination that he was no longer drunk at the time he found the deceased on his daughter’s bed.

5.3 PROSECUTOR V PAUL LAGANG MALIT20 In this case, the accused and the victim were related to each other. They shared and rented the same premise together. On August 13, 2013, some of their friends had joined the accused and the victim drinking and enjoying some feast at the apartment. The photograph evidences and from the police investigation, it was found out that there was heavy drinking which had apparently started from the morning right until night fall. From the evidence led it was clear that both the accused and the victim and the other friends were in state of intoxication although the extent and level of intoxication of the persons present could not be determined. One of their friend, Robin, heard a quarrel between the accused and the victim before he left the apartment. Robin suggested that the victim cool off by going to his uncle’s house and he volunteered to take the victim 19 20

[2015] 8 CLJ 503 [2015]1 LNS 491

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there, to which the victim agreed. Robin waited for the victim in his car and not long later, the victim came and went on to sit at the front passenger’s seat. The accused came, failed to open the door and he broke the window on the passenger’s side and punch the victim. The victim in trying to save himself pushed Robin out from the car and landed at the driver’s seat. At the same, the accused stabbed the victim with a knife. The cause of death ascertained by the doctor who carried out the post-mortem confirmed the fact that the injury causing the death was caused by a sharp instrument like a knife. In this case, the accused had put forward two defences, first denying that he had caused the injuries or stabbed the deceased and secondly that he was in a state of such intoxication and he did not know what he was doing or that what he was doing was wrong. However, in this case, the accused denial of stabbing the deceased was not supported by the evidence of his own witnesses. Therefore, the only defence available was that the accused was so intoxicated that he was temporarily insane and not conscious of his actions. Nevertheless, intoxication per se by virtue of Section 85(1) of the Penal Code shall not constitute a defence to any criminal charge subject to the exceptions under section 85(2) of the Penal code. Intoxication shall not be a defence because the accused failed to prove that he was totally intoxicated at that time. On the contrary his conduct showed that the act and action of the accused was deliberate and calculative. As if it had been committed with a mind which had the ability to think and decide whether the actions were right or wrong. The state of mind of the accused was more of anger as the evidence showed that the accused was incensed with the deceased who was much younger to him and whom the accused considered disobedient. Furthermore, it must be observed that in the defence of intoxication, the state of mind of the accused in order to determine whether he could have formed the necessary intention in his actions. The best evidence to establish this is by observing his conduct prior, at the time of, and after the offence. In addition, scientific evidence is also significant to explain the conduct of the person. The intoxication might have added to the anger but it certainly did not cloud the judgement of the accused for the defence under section 85(2) of the Penal Code to be applied. Unfortunately, in this case, the accused had failed to present sufficient evidence to sustain the defence of intoxication. We could not find any. The High Court held that the accused was guilty of committing murder as the prosecution had proved the charge against the accused beyond reasonable doubt.

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5.4 PUBLIC PROSECUTOR V. WILLIAM JOSEP AK AH KIANG 21 In this case, the accused was public handed to the police to be arrested and was suspected to have killed his own brother. His brother was found dead in front of their house. Based on the post-mortem report, it was found that the deceased was stabbed with knife which penetrated through the first left intercostal space, then went through the left lung and finally cut through the heart and directly caused his death. The accused was charged for murder under section 302 of the Penal Code. The accused raised the defence of intoxication by alleging that he and the deceased had consume intoxicated drink and were drunk before they quarrel with each other. Counsel for the accused submitted that voluntary or self-induced intoxication negates mens rea which is a defense and therefore section 86(2) will have no application. The court held that the difference between section 299 and 300 of the Penal Code is in the degree of probability or likelihood of causing death. If death is an imminent result, it falls under section 300, but if death is a likely result, it falls under section 299 of the Penal Code. The applicability of section 299 only comes into question once section 300 has been ruled out. In considering whether the intention to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there is an intention to strike at vital or dangerous spot, and whether sufficient force to cause the kind of injury found to have been inflicted. Based on the chemist report, both the deceased and accused had consumed alcohol at the material time however there was no evidence that the accused was intoxicated at that time. Besides, by looking at the length of the knife used, it was found that if it is used to stab a person, in particular at the chest, it will likely pierce the chest and an internal organ. Any person, who uses such a knife, with sufficient force, to stab the chest of another person, knows that it will penetrate the chest and pierce an internal organ which will cause serious injuries. The stab found on the deceased was found to be a stab which would be inflicted with force and is fatal which was sufficient in the ordinary course of nature to cause the death of the deceased. There were evidence shows that after he was stabbed in the chest with the knife by the deceased, the deceased fell down and died. The deceased’s death was held to be imminent or immediate and came within section 300 of the Penal Code. At the end of the prosecution’s case, on a maximum evaluation of the evidence, the prosecution has made out a prima facie case against the accused under section 302 of the Penal Code.

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[2018] 8 MLJ 532

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Furthermore, the issue was also whether the accused was intoxicated at the material time. The defence of intoxication is provided in section 85 and 86 of the Penal Code. Under section 86, intoxication is an issue, the court has to determine whether the accused had the requisite intent in the light of intoxication. However, when considering the relevant evidence, it was shown that the accused has maintained his mental faculty and was not acting as an intoxicated person. Although he had consumed alcohol during the day, the accused was not so intoxicated that he did not know what he did or he did not know what he did was wrong. The accused also did not testify that by reason of intoxication, he was rendered temporarily insane at the time he stabbed the deceased nor he testifies that as a result of intoxication, he did not know what he did was wrong. He did not say that as a result of the alcohol consumed that he was so intoxicated that he could not have formed the intent to cause the bodily injuries or to inflict the fatal stab wound to be the deceased. On the other hand, although the accused has testified that he had been drinking liquor since morning, he did not say that he was forced to drink. Self-induced intoxication is not a defence under section 85(a) of the Penal Code. Therefore, the accused has failed, on the balance of probabilities, to establish the defence of intoxication. He failed to establish that he did not know what he did was wrong or that he did not have the intent to inflict the fatal wound to the deceased due to intoxication. The accused has failed to give an acceptable explanation or raise reasonable doubt to the court as to his guilt and also the prosecution has proved its case beyond reasonable doubt against the accused on the charge under section 302 of the Penal Code, the accused in thus guilty.

5.5 PUBLIC PROSECUTOR V. ALDWIN ROJAS SAZ [2019]22 In this case, the respondent was charged with murder under section 302 of the Penal Code for murdering his 8-year old son and also for injuring his wife with a dangerous weapon under section 304(b) of the Penal Code. The High Court ruled that the prosecution failed to establish the prima facie case of murder but only succeeded in establishing prima facie case of the lesser offence of culpable homicide not amounting to murder under section 304(b) of the Penal Code and accordingly amended the murder charge under section 302 of the Penal Code to a charge of culpable homicide not amounting to murder under section 304(b) of the Penal Code. The amendment was done on the ground that the trial judge found that the respondent to be insane by reason 22

[2019] MLJU 565

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of intoxication from Methamphetamine use at the time he committed the act and rendered his action against his own child become unintentional, without knowledge and with no motive. The prosecution appealed against the judgment. Since both the prosecution and the defence did not dispute that the respondent was insane by reason of intoxication from Methamphetamine use at the time, the case therefore stood to be decided on the basis that the defence under section 85(2)(b) of the Penal Code. Having found that the respondent was insane by reason of intoxication from Methamphetamine use when he committed the acts, what the learned judge should have done was to follow the procedure prescribed by section 348(1) of the Criminal Procedure Code, which was to acquit the respondent of the two charges and to order that he be kept in safe custody in such place and manner as she thought fit and thereafter to report the case for the orders of the Yang di-Pertuan Negeri. The trial judge was erred to amend the murder charge under section 302 to a charge under section 304(b) of the Penal Code and then proceeding to convict him of the offence on his plea of guilty as the respondent act was covered by the defence under section 85(2) read with section 84 of the Penal Code. No conviction should have been entered against the respondent for this offence and, for that matter, the offence under section 324 of the Penal Code notwithstanding the fact that he pleaded guilty of the charges. He should have been acquitted of both the murder charge and the charge under section 324 of the Penal Code as his case falls under section 85(2)(b) of the Penal Code. The convictions therefore null and void. As a consequential order and pursuant to section 348(1) of the Criminal Procedure Code, the respondent should be released from prison forthwith and thenceforth be kept in the safe custody of Hospital Mesra Bukit Padang Kota Kinabalu and report the case to Yang Di-Pertua Negeri of Sabah.

6.0 CONCLUSION In the end of the day, the defence of intoxication provided under Section 85 and 86 falls under the General Defences of Chapter IV of the Penal Code is a quite good defence. This defence of intoxication can be divided into 3 form which include involuntary intoxication (Section 85(2)(a)), voluntary or insane intoxication (Section 85(2)(b)) and intoxication negating intention (Section 86(2)). All these three form of intoxication which falls under Section 85 and 86 have different effect towards the accused person However, as good as it looks, intoxication is quite difficult to be raised as a defence especially for murder cases. In fact, in most cases, whether the precedent or latest cases, intoxication 15

are always unsuccessful to be raised as a defence for the offence of murder under Section 300.

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BIBLOGRAPHY Abdul Aziz bin Mohamed Shariff v PP [2010] 6 MLJ 759 Allen, M. (1991). “Textbook on Criminal Law”. Great Britain: Blackstone Press Limited. Asri bin Beddu v PP [2013] 3 MLJ 898 Childs, D, and Dobson, P. (Ed.). (2008) “Nutcases Criminal Law” (5th ed.). London: Sweet & Maxwell. Francis Antonysamy v PP [2005] 2 CLJ 481 Hamdan NN, “Can Intoxication Become Defense?”. Retrieved from accessed December 2, 2019 Hendy J and Hutchinson O, Optimize Criminal Law (1st edn Routledge 2015) 275 Herring J, Criminal Law: Text, Cases, and Materials (5th edn Oxford Univ Press 2012) 156 Hering, J. (Ed.). (2018). “Criminal Law Text, Cases, and Materials” (8th ed.). United Kingdom: Oxford University Press. Ismail bin U.K. Abdul Rahman v PP [1974] 2 MLJ 180 Kenneth Fook Mun Lee v PP [2007] 2 MLJ 130 Penal Code, section 86 R v Allen [1988] Crim LR 698 Reed, A, and Fitzpatrick, B. (Ed.). (2009). “Criminal Law” (4th ed.). London: Sweet & Maxwell.

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