2/18/2020 Case:[1953] 1 LNS 33

[1953] 1 LNS 33
[1953] 1 MLJ 48

ISMAIL BIN HUSSIN v. PUBLIC PROSECUTOR

HIGH COURT, KUALA LUMPUR
CA MATHEW, CJ; WILSON, J; TAYLOR, J
FM CRIMINAL APPEAL NO 106 OF 1952
24 JANUARY 1953

MURDER:- Penal Code s 300 - Construction - Intention to cause death - Effect of challenge - Proof of identity of
body.

Case(s) referred to:

Fazal Din v. PP [1949] MLJ 123

Counsel:
For the appellant - COG Gould
For the respondent - PG Clough (DPP)The facts appear sufficiently from the judgment.The judgment of the
Court of Appeal was delivered by:

JUDGMENT
Taylor J:
This appellant was convicted of the murder of one Omar and also of the attempted murder, in the same
incident, of a man named Rifin.
The appellant, who is a member of the Home Guard at Kanjat in the Ulu Dungun district of Trengganu, went
out about dawn intending to go to his padi land. He was accompanied by a friend. Both carried shot guns.
They went along one of two paths near a river. When they had gone about half a mile the appellant waited in a
patch of secondary jungle while his friend went to inspect a fish trap.
The deceased and Rifin went to the same patch of small jungle to shoot barking deer. Others went to the
same area to shoot, but independently. The deceased was walking some four or five paces ahead of Rifin
when suddenly a shot was fired killing Omar instantly; some of the pellets struck Rifin in the groin. A second
shot wounded his thighs. Rifin then saw a man with a gun, moving in the blukar and fired two shots, without
effect. Five or six more shots were fired from the blukar, also without effect. The firing was heard and the
Penghulu, with a small party, went to the scene. Rifin told them that terrorists had fired at him. The Penghulu
took the body and the wounded man to hospital.
On his return, the appellant surrendered and made a statement, the content of which was not proved. Two
days later, the appellant made a confession to a Magistrate in which he said that while he was waiting for his
friend, he saw a figure and fired at once; that he then saw the legs only of another person and again fired; that
two shots were then fired at him; that he then fired about eight times to warn the villagers and retreated across
the river.
It is remarkable that the accused in his confession, and Rifin in his evidence at the trial some months later,
detail the shots fired in exactly the same sequence.
There was some evidence, but not of a convincing character, of friction between the accused and the
deceased several years earlier. Both were Home Guards and several of their comrades gave evidence, but
there was no suggestion of any recent grievance. There was nothing to show that the accused knew that
Omar was likely to go to the spot on that particular morning.
The case made at the trial was that the accused must have recognised Omar and that he shot him purposely,
with malice.
The defence was that the accused did not recognise Omar and mistook him for a terrorist.

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2/18/2020 Case:[1953] 1 LNS 33

The accused went into the box and swore that he had challenged the deceased thrice in a loud voice, and
received no reply. This was almost certainly untrue. It was quite inconsistent with his confession in which he
said that he "fired at once at the moving figure." Had he been challenged, Omar would have stopped and
almost certainly answered. The question of challenge was never put to Rifin.
In his summing up the learned trial Judge read the definition of culpable homicide, s. 299 of the Penal Code,
and then said that if the act was done with the intention of causing death, it would amount to murder. He held,
rightly, that the other provisions of s. 300 did not apply to these facts.
He then summed up the evidence regarding the circumstances of the shooting, with special attention to the
visibility, and said:
. . . .. .. whether you are satisfied........ that the accused was in a position to see that it was Omar and to
recognise him,
and later
While you are considering this question whether an intention of murder........ has been established, you
will have to give some consideration to this question of motive
and again
whether you are satisfied that the accused saw that it was the deceased who was coming along that path
and that he intentionally fired at him with the intent to kill.
Later he said
If you are not satisfied that the accused's version to the Magistrate is untrue, you should consider
whether the prosecution have established a prima facie case of culpable homicide not amounting to
murder.
The only material difference between the confession and the other evidence at the trial was as to the
challenge.
Subsequently the Judge said:
If he properly gave the challenge because he suspected the persons in the vicinity to be communists and
got no reply and then fired - well, the law is not going to ascribe to him any crime.
If you believe his story on all material points - except that you do not believe he gave any challenge - then
I suggest that you may find the facts fall within the definition of culpable homicide not amounting to
murder.
In the end he left it to the assessors to acquit or to convict of murder, or of culpable homicide, or of causing
death by a rash act.
The broad effect of this summing up was to leave to the assessors three issues.
If they thought that the accused recognised Omar and purposely shot him, then it was murder.
If they thought that he shot a suspected terrorist without challenge, then it was culpable homicide.
If they thought he shot a suspected terrorist after his challenge was unanswered, then it was no offence.
These were not the correct issues. The first is correct up to a point but it is incomplete. It suggests that in
order to constitute murder, the law requires an express intention to kill an identified person. This is too narrow.
But in the peculiar circumstances, it served a purpose. By convicting of murder on that direction the assessors
show that in their opinion the accused did recognise Omar. In so far as the direction was inadequate in point
of law, it was unduly favourable to the accused. Too much importance was attached to the issue of challenge
or no challenge. A challenge has no legal force of its own. It is merely a fact, which may have a bearing on the
state of mind of the accused but does not affect the victim. Say a Chinese rubber tapper, who does not
understand any Malay, is on his way to his work in the early dawn in an estate partly overgrown. Suddenly a
person whom he cannot see shouts: " Siapa itu?" Why should he think the shout is addressed to him? Is he to
be shot out of hand? Even if, six months earlier, a party of bandits had passed through that area, he might not
know of it. In our anxiety to suppress terrorism, we must not deprive those who stick to their work in unsafe
areas of such protection as the law is able to afford.
The evidence as a whole shows beyond doubt that the accused saw a man and shot him at close range.
Obviously he intended to kill.
It may be that he did not recognise Omar. It is highly unlikely that he had any premeditated design to kill
anyone or even to fire. But he knew that his friend was within a few yards and both he and Omar were on, or
very near to, a not unfrequented path.
The most probable explanation is that the accused's first statement to the Magistrate is wholly true - that he
saw a man and fired at once - on impulse - without any conscious or reasoned thought. But however suddenly
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the intention was formed, the intention was to kill. That amounts to murder.
What the consequences should be is a question for separate consideration, by another authority and possibly
with additional materials.
As regards the shooting of Rifin, it is not unusual to fire a shot gun at a man's legs, to prevent escape and the
like, where there is a definite intention not to kill. The second conviction should therefore have been for
causing grievous hurt and a sentence of three years would have sufficed.
One other point was taken on appeal. There was no direct evidence that the body examined by the medical
officer at the post mortem was the body of Omar. It was suggested that this is a fatal defect in the prosecution
case, as in Fazal Din v. PP [1949] MLJ 123. The facts however, are distinguishable. In that case there was no
evidence that the corpus delicti had been sent to hospital. In this case there is the evidence of the Penghulu
that he accompanied the body of Omar and the wounded survivor, Rifin, to the hospital at the same time and
there were a number of other circumstances which exclude any real risk that the body examined was not that
of Omar.
Nevertheless, it is a matter for adverse comment that all the routine modes of identification were omitted. It is
not right that the Court should have to comb the evidence or draw debatable inferences on such a point. It
should have appeared on the face of the deposition, in case the medical man was not available at the trial. If it
was overlooked then, it certainly should have been made good at the trial. Any text book on medical
jurisprudence begins the chapter on examination of the person, living or dead, with the question of
identification. It ought to be brought home to Medical Officers and, more especially, to Deputy Public
Prosecutor's that if they omit such an elementary precaution they may raise either a question as to their
professional competence or an inference of irresponsible negligence.
The appeal is dismissed but the minor conviction will be formally amended to one for voluntarily causing
grievous hurt by shooting and the sentence therefore reduced to three years.
Appeal dismissed. Sentence reduced.
[1953] 1 MLJ 48

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