[2006] 4 CLJ Kenneth Fook Mun Lee v.

PP 359

A KENNETH FOOK MUN LEE

v.

PP
B FEDERAL COURT, PUTRAJAYA
AHMAD FAIRUZ CJ
PS GILL FCJ
RICHARD MALANJUM FCJ
[CRIMINAL APPEAL NO: 05-23-2005(W)]
C 9 JUNE 2006

CRIMINAL LAW: Penal Code - Section 300 - Murder - Ingredients

of offence - Mens rea - Defence of intoxication - Application of s. 86(2)
Penal Code in relation to mens rea for offence of murder as defined in
D s. 300 Penal Code - Penal Code, ss. 85, 86(2), 300(d)

CRIMINAL PROCEDURE: Appeal - Fact, finding of - Interference

by appellate court with trial judge’s finding of fact - Whether warranted
- Whether appellant unfairly and unjustly prejudiced - Whether approach
adopted by Court of Appeal correct
E
This was an appeal by the appellant against the decision of the
Court of Appeal finding him guilty of murder and sentencing him
to death. The High Court had, earlier on, found the appellant
guilty of culpable homicide not amounting to murder under
F s. 304(b) of the Penal Code (‘Code’) and sentenced him to eight
years imprisonment. Dissatisfied with the High Court’s decision,
the prosecution appealed to the Court of Appeal and the
appellant cross-appealed. The impugned decision of the trial court
was reversed by the Court of Appeal resulting in the present
G appeal to this court by the appellant. During the trial, the sole
defence relied upon by the appellant was automatism by reason of
hypoglycaemic attack at the time of the incident, a defence which
did not find favour with the learned trial judge, who instead
considered the probable defence of intoxication even at the end
H of the case for the prosecution. The learned trial judge relied on
the fourth clause of s. 300 of the Code (knowledge) for the mens
rea of murder, despite the testimony of witnesses called by the
prosecution that the appellant could have been drunk at that time.
And at the defence stage, the allegation of drunkenness was even
I contradicted by some of the witnesses called for the defence,
including the appellant himself. In its judgment, the Court of
Appeal took the view that knowledge, being one of the mental
360 Current Law Journal [2006] 4 CLJ

ingredients for the offence of murder under the Code, could and A
should have been considered and relied upon by the learned trial
judge as he correctly did at the end of the case for the
prosecution. The decision of the trial court was thus reversed, and
the appellant was convicted and sentenced to death by hanging.
In this appeal, the singular but critical issue requiring consideration B
was on the application of s. 86(2) of the Code in relation to the
mens rea for the offence of murder as defined in s. 300 of the
Code, with the factual matrix of this case under appeal forming
the backdrop.
C
Held (dismissing the appeal, and affirming the conviction
and sentence of the Court of Appeal)
Per Richard Malanjum FCJ:

(1) In the present appeal, affirming the approach adopted by the

D
learned trial judge in determining mens rea when intoxication is
in issue would tantamount to sidestepping cl. (d) of s. 300 of
the Code as one of the elements of mens rea for the offence
of murder. It would mean that on a charge for murder where
the defence is intoxication, an accused person does not have
E
to be concerned with cl. (d) and may conveniently disregard
its existence. With respect, such an approach would firstly
render s. 85 otiose and secondly, it might even be perceived
as a license to commit murder under the cover of intoxication.
This court could not agree with the approach undertaken by
F
the learned trial judge when he said that “the court must first
make a finding on the relevant mens rea before embarking on a
consideration of the defence of intoxication” vis-à-vis
s. 86(2). The purpose of proved intoxication envisaged in
s. 86(2) is quite apart from the defence of intoxication under
G
s. 85(2). (paras 35 & 42)

(2) Clause (d), being one of the categories of mens rea for the
offence of murder as defined in s. 300 of the Code, should
not be disregarded even if s. 86(2) is raised. The reason is
simply because under s. 86(2), the fact of intoxication is only H
a circumstance to be taken into account in proving intention
where the mental element of an offence is one of intention,
specific or otherwise, and if knowledge is the required mental
element, s. 86(2) does not apply. Indeed, the learned trial
judge and the Court of Appeal were in ad idem on the I
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 361

A inapplicability of s. 86(2) where knowledge is the element of

mens rea to an offence. Further, a plain interpretation of cl. (d)
in s. 300 of the Code allows no other reasonable meaning
other than to say that knowledge is another element of mens
rea for the offence of murder. (para 43, 44)
B
(3) Had the learned trial judge maintained the course that he took
at the end of the case for the prosecution, his final verdict
might have been similar to that of the Court of Appeal. It
should be noted that the learned trial judge did not accept the
C sole defence relied upon by the appellant, namely automatism
by reason of him undergoing a hypoglycaemic episode at the
material time. Upon rejection of that sole defence and with
s. 86(2) only applicable to the first three categories, the
verdict would have been quite obvious subject of course to
D proof to the standard of beyond reasonable doubt by the
prosecution of all the elements for the offence of murder,
including the prerequisites to be established in cl. (d).
(para 45)

(4) Therefore, there was no merit in the appellant’s contention

E
that the defence should not have been called at the close of
the case for the prosecution. (para 46)

(5) The Court of Appeal did interfere with the finding of the
learned trial judge on his finding of the appellant being in an
F intoxicated state at the material time but such interference by
the Court of Appeal was more in the nature of interference
on the inferences to be given from the proved set of facts, in
which case the Court of Appeal would have also been in an
equally good position as the learned trial judge to make the
G determination. Having considered the reasons of the Court of
Appeal for making such findings or inferences, this court was
inclined to agree with it. The Court of Appeal’s conclusion
was also more tenable. In fact, despite the testimony of
witnesses called by the prosecution that the appellant could
H have been drunk at that time, the learned trial judge went on
to find at the close of the case for the prosecution that there
was a case to answer for the charge of murder with cl. (d) as
the mental element. And at the defence stage, the allegation
of drunkenness was contradicted by the witnesses called by
I the appellant. (paras 49 & 53)
362 Current Law Journal [2006] 4 CLJ

(6) Accordingly, there was no justification in finding that the A

appellant was unfairly and unjustly prejudiced by such exercise
of the Court of Appeal. In fact, the Court of Appeal went on
to say that even if accepting the finding of the learned trial
judge that the appellant was in an intoxicated state at the
material time, he was not in such a state that he had no B
knowledge of what he was doing. In view of the basis for
calling the defence at the end of the case for the prosecution,
the rejection of the sole defence of the appellant, namely,
automatism by reason of him undergoing a hypoglycaemic
episode at the material time and the finding by inference of C
knowledge as defined in cl. (d) of s. 300 of the Code both by
the learned trial judge (albeit at the close of the case for the
prosecution) and by the Court of Appeal, there was no reason
to find that the decision of the Court of Appeal was erroneous
in law and in fact. (para 54) D

(7) The Court of Appeal’s reasons for concluding “that the weight
of evidence clearly established that the respondent was very
much in control of his actions despite the alcohol he
consumed” was very much in line with the earlier approach E
adopted by the learned trial judge when calling for the
appellant’s defence. As stated earlier, if the learned trial judge
did not retract from his earlier direction in construing the
application of cl. (d), he could have arrived at the same
conclusion as that of the Court of Appeal. Therefore, the F
Court of Appeal was correct in its approach, the reasons given
and its decision. (para 56)

(8) For the reasons expressed hereinabove, cl. (d) of s. 300 of the
Code should not have been omitted by the learned trial judge
G
in his overall consideration of the case simply on the basis
that intoxication was in issue and s. 86(2) could be invoked.
(para 58)

Bahasa Malaysia translation of headnotes

H
Ini adalah rayuan perayu terhadap keputusan Mahkamah Rayuan
yang mendapatinya bersalah atas tuduhan membunuh dan
menjatuhkan hukuman mati ke atasnya. Sebelum itu, Mahkamah
Tinggi telah mendapati perayu bersalah melakukan homisid salah
tak sampai membunuh di bawah s. 304(b) Kanun Keseksaan I
(‘Kanun’) dan menjatuhkan hukuman lapan tahun penjara. Terkilan
dengan keputusan Mahkamah Tinggi, pendakwaan merayu ke
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 363

A Mahkamah Rayuan sementara perayu merayu balas. Keputusan

Mahkamah Tinggi yang dicabar telah diakas oleh Mahkamah
Rayuan, sekaligus membawa kepada rayuan perayu ke mahkamah
ini. Semasa perbicaraan, satu-satunya pembelaan perayu adalah
kespontanan disebabkan oleh serangan ‘hypoglycaemic’ semasa
B insiden, pembelaan mana tidak mendapat mendapat tempat pada
pertimbangan yang arif hakim, yang sebaliknya mempertimbang
kemungkinan pembelaan mabuk sejak di peringkat akhir kes
pendakwaan. Yang arif hakim bicara bergantung kepada perenggan
keempat s. 300 Kanun (pengetahuan) bagi mens rea membunuh,
C walaupun terdapat keterangan saksi-saksi pendakwa yang
menyatakan bahawa perayu berkemungkinan mabuk ketika itu. Di
peringkat pembelaan, dakwaan mabuk kelihatan bercanggah dengan
keterangan beberapa saksi pembelaan, termasuk perayu sendiri.
Dalam keputusannya, Mahkamah Rayuan mengambil pendirian
D bahawa pengetahuan, sebagai salah satu ingredien mental bagi
kesalahan bunuh di bawah Kanun, boleh dipertimbang dan
dijadikan asas oleh yang arif hakim bicara, sepertimana yang
dengan betulnya dibuat oleh beliau di akhir kes pendakwaan.
Keputusan mahkamah bicara dengan itu telah diakas, dan perayu
E disabitkan dan dihukum gantung sampai mati. Dalam rayuan di
sini, isu kritikal tunggal yang memerlukan pertimbangan adalah
berkaitan pemakaian s. 86(2) Kanun dalam hubungannya dengan
mens rea bagi kesalahan bunuh sepertimana yang didefinasikan oleh
s. 300 Kanun, dalam konteks latarbelakang dan urutan fakta kes
F di sini.

Diputuskan (menolak rayuan dan mengesahkan sabitan dan

hukuman Mahkamah Rayuan)
Oleh Richard Malanjum HMP:
G
(1) Dalam rayuan semasa, mengesahkan pendekatan yang diambil
oleh yang arif hakim dalam menentukan mens rea ketika isu
mabuk dipersoalkan bermakna meminggirkan per. (d) sebagai
salah satu elemen mens rea bagi kesalahan bunuh. Ia bermakna
bahawa bagi pertuduhan bunuh di mana pembelaannya adalah
H
mabuk, seorang tertuduh tidak perlu bimbang dengan per. (d)
s. 300 Kanun dan malah boleh menyangkal kewujudannya.
Dengan hormat, pendekatan sedemikian pertama sekali akan
menjadikan s. 85 sia-sia dan kedua, ia mungkin akan dilihat
sebagai lesen untuk membunuh dalam keadaan mabuk.
I
Mahkamah ini tidak dapat bersetuju dengan pendekatan yang
diambil oleh yang arif hakim bicara apabila beliau mengatakan
364 Current Law Journal [2006] 4 CLJ

“mahkamah harus terlebih dahulu membuat dapatan mengenai A

mens rea yang relevan sebelum pergi kepada pertimbangan
pembelaan mabuk” vis-à-vis s. 86(2). Tujuan terbukti mabuk di
bawah s. 86(2) tidak sama dengan pembelaan mabuk di bawah
s. 85(2).
B
(2) Perenggan (d) sebagai salah satu kategori mens rea bagi
kesalahan bunuh seperti yang didefinasikan oleh s. 300 Kanun,
tidak boleh dipinggirkan walaupun s. 86(2) telah dibangkitkan.
Sebabnya adalah, di bawah s. 86(2), fakta mabuk hanyalah
satu keadaan yang harus diambilkira dalam membuktikan niat C
di mana niat merupakan elemen mental bagi kesalahan itu,
sama ada secara spesifik atau sebaliknya, dan sekiranya
pengetahuan merupakan elemen mental yang diperlukan, maka
s. 86(2) tidak terpakai. Yang arif hakim bicara dan Mahkamah
Rayuan, malah, berada dalam keadaan id idem berhubung D
ketidak-terpakaian s. 86(2) di mana pengetahuan adalah
elemen mens rea kepada sesuatu kesalahan. Selain itu, mentafsir
secara biasa perenggan (d) s. 300 Kanun, makna munasabah
yang terbit darinya hanyalah bahawa pengetahuan adalah satu
elemen lain mens rea bagi kesalahan bunuh. E

(3) Sekiranya yang arif hakim bertahan dengan pendirian yang

diambil olehnya di akhir kes pendakwaan, keputusan terakhir
beliau mungkin sama dengan apa yang diputuskan oleh
Mahkamah Rayuan. Harus diingat bahawa yang arif hakim
F
bicara tidak menerima pembelaan tunggal yang perayu
bergantung padanya, iaitu kespontanan disebabkan oleh
serangan episod ‘hypoglycaemic’ pada waktu material. Sebaik
pembelaan tunggal tersebut ditolak, dan dengan s. 86(2)
terpakai hanya kepada tiga kategori pertama, keputusannya
G
adalah agak jelas tertakluk tentunya kepada bukti di luar
keraguan munasabah akan semua elemen kesalahan bunuh,
termasuk syarat-syarat yang perlu dipenuhi di bawah per. (d).

(4) Oleh itu, tiada merit dalam hujah perayu bahawa pembelaan
tidak seharusnya dipanggil di akhir kes pendakwaan. H

(5) Memanglah Mahkamah Rayuan telah campur tangan dalam

dapatan yang arif hakim bicara berkaitan dapatannya yang
menyatakan bahawa perayu berada dalam keadaan mabuk
pada waktu material. Namun, campur tangan Mahkamah I
Rayuan itu lebih berbentuk campur tangan terhadap inferens
yang perlu dibuat terhadap fakta-fakta yang sudah terbukti,
dalam keadaan mana Mahkamah Rayuan berada dalam
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 365

A kedudukan yang sama baik seperti yang arif hakim bicara untuk
membuat keputusan. Melihat kepada alasan-alasan Mahkamah
Rayuan apabila mencapai keputusan dan inferensnya,
mahkamah ini cenderung untuk bersetuju dengannya. Konklusi
yang dibuat oleh Mahkamah Rayuan adalah lebih berasas.
B Malah, walaupun terdapat keterangan saksi-saksi pendakwaan
bahawa perayu mungkin mabuk pada waktu material, yang arif
hakim masih terus membuat dapatan di akhir kes pendakwaan
bahawa wujud kes untuk dijawab atas pertuduhan membunuh
dengan per. (d) sebagai elemen mentalnya. Dan, di peringkat
C pembelaan, dakwaan mabuk telah disanggah oleh saksi-saksi
yang dipanggil oleh perayu.

(6) Ianya dengan itu mengikut bahawa tiada justifikasi untuk

mengatakan bahawa tindakan Mahkamah Rayuan di sini telah
D memprejudis perayu dengan secara yang tidak wajar dan tidak
adil. Mahkamah Rayuan malah telah mengatakan bahawa,
jikapun dapatan yang arif hakim bicara yang menyatakan
perayu berkeadan mabuk pada waktu material itu diterima,
keadaan mabuknya itu tidaklah sampai menyebabkan perayu
E tidak tahu apa yang dibuatnya. Mengambilkira alasan untuk
memanggil pembelaan di akhir kes pendakwan, penolakan
pembelaan tunggal perayu, iaitu kespontanan yang berbangkit
dari serangan episod ‘hypoglycaemic’ pada waktu material,
serta dapatan melalui inferens pengetahuan sepertimana ianya
F ditakrif oleh per. (d) s. 300 Kanun seperti yang dibuat oleh
kedua-dua yang arif hakim bicara (albeit di akhir kes
pendakwaan) dan Mahkamah Rayuan, tiada alasan untuk
mendapati bahawa keputusan Mahkamah Rayuan adalah salah
di sisi fakta dan undang-undang.
G
(7) Alasan Mahkamah Rayuan apabila merumuskan “bahawa
keterangan membuktikan dengan jelas bahawa responden
mempunyai kawalan terhadap perbuatannya walaupun telah
meminum arak” adalah selaras dengan pendekatan terdahulu
yang diambil oleh yang arif hakim bicara sewaktu memanggil
H
pembelaan perayu. Seperti yang dinyatakan sebelum ini, jika
yang arif hakim bicara tidak mengubah pendirian asalnya dalam
mentafsir keterpakaian per. (d), beliau mungkin akan mencapai
keputusan yang sama seperti yang dicapai oleh Mahkamah
Rayuan. Oleh itu, Mahkamah Rayuan betul dalam pendekatannya,
I
serta dalam alasan-alasannya dan keputusannya.
366 Current Law Journal [2006] 4 CLJ

(8) Atas alasan-alasan yang dinyatakan di atas, per. (d) s. 300 A

Kanun tidak seharusnya ditinggal oleh yang arif hakim bicara
dalam pertimbangan menyeluruh kes semata-mata atas alasan
bahawa mabuk merupakan satu isu dan bahawa s. 86(2) boleh
digunapakai.
B
Case(s) referred to:
Behari v. State AIR [1953] All 203 (refd)
Broadhurst v. The Queen [1964] 2 WLR 38 (refd)
Chan Chor Shuh v. PP [2003] 1 CLJ 501 CA (refd)
China Airlines Ltd v. Maltran Air Corp Sdn Bhd [1996] 3 CLJ 163 FC
(refd) C
Chiu Nang Hong v. PP [1965] 1 MLJ 40 (refd)
Director of Public Prosecutions v. Beard [1920] AC 479 (refd)
Eng Mee Yong v. Letchumanan [1979] 2 MLJ 212 (refd)
Hashim Mat Isa v. PP [1950] MLJ 94 (refd)
Juma’at Samad v. PP [1993] 3 SLR 338 (refd) D
Kanji v. State [1953] Cr LJ 434 (refd)
Manindra Lal Das v. Emperor [1937] AIR Calcutta 432 (refd)
Mohamad Radhi Yaakob v. PP [1991] 3 CLJ 2073; [1991] 1 CLJ (Rep)
311 SC (refd)
PP v. Lin Lian Chen [1991] 1 MLJ 316 (refd)
Tan Hung Song v. Rex [1951] MLJ 181 (refd) E
Tay Kah Tiang v. PP [2001] 2 SLR 305 (refd)
Tembo v. The People [1972] ZR 220 (refd)
William Tan Cheng Eng v. PP [1970] 2 MLJ 244 (refd)
Wong Nam Loi v. PP [1998] 1 CLJ 37 CA (refd)
F
Legislation referred to:
Penal Code, ss. 85, 86(2), 300(d), 304(b)

Criminal Code [Malta], ss. 35(4), 234

For the appellant - Hj Sulaiman Abdullah (Rabinder Singh & Mohd Hisham
G
Mohd Nazir with him); M/s Rabinder Budiman & Assoc
For the respondent - Mohammad Fairuz Zainol Abidin (Nurulhuda Noraini
Mohd Nor, Nor Amelina Ismail & Nik Adura Hashim Nik Ariffin with
him)

[Appeal from Court of Appeal; Criminal Appeal No: W-05-60-2003] H

Reported by Suresh Nathan

I
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 367

A JUDGMENT

Richard Malanjum FCJ:

[1] This is an appeal by the appellant against the decision of the

Court of Appeal rendered on 26 March 2005 whereby the
B
appellant was found guilty of murder and sentenced to death. The
High Court had earlier on in its verdict rendered on 30 June 2003
found the appellant guilty of culpable homicide not amounting to
murder under s. 304(b) of the Penal Code (‘Code’) and sentenced
him to eight years imprisonment effective from 22 August 2000
C
(the date of arrest).

[2] Dissatisfied with the decision of the High Court the

prosecution appealed to the Court of Appeal and the appellant
cross-appealed. The impugned decision of the trial court was
D reversed by the Court of Appeal. Hence, the appellant is now
appealing to this court.

[3] The charge preferred against the appellant reads:

Bahawa kamu pada 22 Ogos 2000 jam lebih kurang 7.55 malam
E
di Jalan Istana Baru, di dalam Daerah Brickfields, di dalam
Wilayah Persekutuan, Kuala Lumpur telah melakukan bunuh
dengan menyebabkan kematian Lee Good Yew (Kad Pengenalan
No 480520-07-5432) dan dengan itu kamu telah melakukan suatu
kesalahan yang boleh dihukum di bawah s. 302 Kanun Keseksaan.
F
Translation:
That you on 22nd August 2000 at about 7.55 p.m. at Jalan Istana
Baru, in the District of Brickfields, in the Federal Territory, Kuala
Lumpur committed murder by causing the death of Lee Good
G Yew (Identity Card No. 480520-0705432) and you have thereby
committed an offence punishable under section 302 of the Penal
Code.

[4] During the trial the sole defence relied upon by the appellant
was automatism by reason of hypoglycaemic attack at the time of
H
the incident. But that defence did not find favour with the learned
trial judge. Instead the learned trial judge considered the probable
defence of intoxication even at the end of the case for the
prosecution. The step adopted by the learned trial judge led the
Court of Appeal to remark thus:
I
368 Current Law Journal [2006] 4 CLJ

We would have thought that that exercise, viz., to consider a A

defence if the evidence discloses it even if it had not been raised,
should only be undertaken at the conclusion of the trial when all
the evidence is before the court. Section 180 of the Criminal
Procedure Code (“CPC”) provides that when the case for the
prosecution is concluded, the Court shall consider whether the B
prosecution has made out a prima facie case against the accused
and if the Court finds a prima facie case has been made out
against the accused on the offence charged the Court shall call
upon the accused to enter on his defence. We do not think it is
the duty of the Court at that stage to anticipate or speculate any
defence that has not been raised and give due consideration to it. C
More so, a defence categorically denied to be the line of defence
to be taken as in this case. Consequently section 181 of the CPC
provides that when the accused is called upon to enter on his
defence, he or his advocate may then open his case, stating the
facts or law on which it intends to rely and making such comment
D
as he thinks necessary on the evidence for the prosecution. He
may then examine his witnesses and consequently sum up his
case. Section 182A of the CPC provides that at the conclusion of
the trial, the Court shall consider all the evidence adduced before
it and shall decide whether the prosecution has proved its case
beyond reasonable doubt. E

… that such an exercise should only, in a suitable case at that,

be carried out at the conclusion of the trial. Even then, it should
only be considered if the evidence justifies it. F

[5] With respect we are of the view that the remark by the
Court of Appeal is not out of place. It is indeed not the function
of a trial court before the conclusion of a trial to consider the
probable defence, let alone to speculate (more so in this case G
when it was not raised during the case for the prosecution and
indeed the learned trial judge called for the defence on murder),
for to do so would not be in consonant with the relevant
provisions as set out in the Criminal Procedure Code (‘CPC’).
H
[6] But that is not to say that the learned trial judge was not
entitled at the end of the whole case to consider the probable
defence as could be elicited from the overall evidence adduced.
Indeed he is and should do so in law. (See: Chan Chor Shuh v.
Public Prosecutor [2003] 1 CLJ 501; Mohamad Radhi bin Yaakob v.
I
PP [1991] 3 CLJ 2073; [1991] 1 CLJ (Rep) 311) and in an
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 369

A appropriate case a finding on intoxication may be made at the

close of the case for the prosecution especially where s. 86(2) of
the Code is relevant. That section requires intoxication to be
taken into account for the purpose of determining the existence
of intention. Hence in such a case an appropriate ruling could be
B made at the close of the case for the prosecution. However in this
instant appeal the learned trial judge at the close of the case for
the prosecution called for the defence of the appellant as per
charge. The learned trial judge relied on the fourth clause of s.
300 of the Code (that is knowledge) for the mens rea of murder
C despite the testimony of witnesses called by the prosecution that
the appellant could have been drunk at that time. And at the
defence stage the allegation of drunkenness was even contradicted
by some of the witnesses called for the defence including the
appellant himself. Anyway, in this instant appeal the Court of
D Appeal did not anchor its decision on this rather technical but
valid point. Hence we say no more of it.

[7] In its judgment the Court of Appeal took the view that
knowledge, being one of the mental ingredients for the offence of
E murder under the Code, could and should have been considered
and relied upon by the learned trial judge as he correctly did at
the end of the case for the prosecution. The decision of the trial
court was thus reversed and upon being convicted for the offence
of murder the appellant was sentenced to death by hanging.
F
[8] Before us learned counsel for the appellant, inter alia,
complained that the Court of Appeal was wrong in reversing the
verdict of the trial judge. He submitted and emphasised (although
there were numerous grounds of appeal submitted) that the trial
judge was right in his application of s. 86(2) of the Code and
G
finding the defence of intoxication based on the evidence adduced
in favour of the appellant. In fact learned counsel went on to say
that the cross appeal of the appellant against the conviction was
not even considered by the Court of Appeal. He said that the
correct verdict should have been an acquittal since intention, an
H
element for the offence of murder, was not established at the end
of the case for the prosecution.

[9] In respect of the cross-appeal by the appellant before the

Court of Appeal we are of the view that having arrived at their
I decision to allow the appeal by the prosecution it would have
been merely an academic exercise to deal with it. Indeed that was
clearly said by the Court of Appeal:
370 Current Law Journal [2006] 4 CLJ

His appeal against conviction and sentence under section 304(b) A

of the Code is rendered academic and abates by virtue of our
decision in allowing the appeal by the Public Prosecutor.

[10] Hence we find no merit in the complaint by the appellant

on this issue.
B
[11] The learned Deputy Public Prosecutor in reply to the
submission of learned counsel for the appellant argued (the gist)
that knowledge is also an ingredient for the offence of murder
which is not within the ambit of s. 86(2) of the Code. Thus, he
submitted that the Court of Appeal was correct in reversing the C
decision of the learned trial judge.

[12] Having heard the respective contentions of the parties we

are of the view that the singular but critical issue that is presented
before us is on the application of s. 86(2) of the Code in relation D
to the mens rea for the offence of murder as defined in s. 300 of
the same Code with the factual matrix of this case under appeal
forming the backdrop. We noted too that the sole defence relied
upon by the appellant during the trial, namely, automatism by
reason of hypoglycaemic attack at the material time, was not E
seriously pursued before us. Be that as it may, having considered
the reasons given by the learned trial judge and the Court of
Appeal in rejecting the submitted defence of automatism by reason
of hypoglycaemic attack at the material time, we find no ground
to differ from the specific finding of the courts below. F

[13] For convenience the relevant provisions in the Code are

herein reproduced:

Section 85 states:
G
(1) Save as provided in this section and in s. 86, intoxication
shall not constitute a defence to any criminal charge.

(2) Intoxication shall be a defence to any criminal charge if by

reason thereof the person charged at the time of the act or
omission complained of did not know that such act or H
omission was wrong or did not know what he was doing
and:

(a) the state of intoxication was caused without his

consent by the malicious or negligent act of another
I
person; or
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 371

A (b) the person charged was by reason of intoxication

insane, temporarily or otherwise, at the time of such
act or omission.

Section 86 states:
B (1) Where the defence under sub-s 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),
the provisions of s. 84 of this Code, ss. 347 and 348 of the
Criminal Procedure Code shall apply.
C
(2) Intoxication shall be taken into account for the purpose of
determining whether the person charged had formed any
intention, specific or otherwise, in the absence of which he
would not be guilty of the offence.

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

Section 300 states:

E Except in the cases hereinafter excepted, culpable homicide is

murder:

(a) if the act by which the death is caused is done with the
intention of causing death;

F (b) if it is done with the intention of causing such bodily injury

as the offender knows to be likely to cause the death of the
person to whom the harm is caused;

(c) if it is done with the intention of causing bodily injury to any

person, and the bodily injury intended to be inflicted is
G sufficient in the ordinary course of nature to cause death; or

(d) if the person committing the act knows that it is so

imminently dangerous that it must in all probability cause
death, or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk
H of causing death, or such injury as aforesaid.

[14] It is an undisputed fact that the deceased was shot by the

Appellant at the time and place as stated in the charge and that
the cause of her death was due to the injuries sustained from the
I gun shot. Prof Dr K Nadeson (‘PW16’), a forensic pathologist
attached to the University Hospital, Kuala Lumpur who examined
372 Current Law Journal [2006] 4 CLJ

the body of the deceased said that the external examination of the A
deceased showed that her frock had a tear 3cm by 1.5cm on the
right mid-front of the chest area and the right cup of the brassiere
showed a roughly oval shaped tear measuring 2cm by 1cm. The
frock was stained with blood around the area of the tear. The
internal examination showed a lacerated wound 3.7cm by 2cm on B
the mid-front of the right chest. The wound was placed obliquely
horizontal situated 23cm below the tip of the right shoulder and
about 2cm from the mid-chest. PW16 said that a ripped off jacket
of a rifled weapon bullet was found lodged in the fractured 11th
thoracic vertebra and a severely deformed lead core of the bullet C
was found lodged in the left lumbar area of the back closer to the
first lumbar vertebra underneath the skin of the deceased (‘exhs
54 and 55’). PW16 attributed the cause of death of the deceased
due to the ‘bullet wound to the chest with injuries to the vital
organs’. He said that all the injuries were fatal in nature. The D
injuries to the heart, lung and aorta diminished any chance of
survival. The witness concluded by saying this: ‘They were all
caused by a single bullet traversing through these areas’.

[15] The fact that the appellant did shoot the deceased with a E
gun is not in issue although it is one of the complaints by the
appellant that the learned trial judge as well as the Court of
Appeal erred in fact and in law in failing to hold that the act of
shooting was involuntary.
F
[16] With respect we have considered carefully the reasons given
by the learned trial judge. Before coming to his conclusion that
the appellant ‘has failed to establish that he was undergoing a
hypoglycaemic episode at the material time’ the learned trial judge
examined carefully all the evidence adduced including the experts’
G
evidence. And we note that the Court of Appeal ‘agree with the
learned trial judge that the defence had failed to prove that the
respondent was not conscious of what he was doing as a result
of an unexpected hypoglycaemic attack’. Hence, we do not
propose to regurgitate those reasons in this judgment. As intimated
H
hereinabove we find no reason to disagree with the conclusion of
the learned trial judge and as endorsed by the Court of Appeal.
Accordingly the complaint of the appellant on this issue which was
extensively canvassed in the written submission of his learned
counsel merits no further consideration.
I
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 373

A [17] The bulk of the primary facts gathered by the learned trial
judge from the evidence adduced are not in contention. Indeed
the Court of Appeal had also painstakingly narrated the relevant
evidence adduced and the findings of the learned trial judge.
Hence it would be adequate for the purpose of this judgment that
B we only reproduce the relevant findings of the learned trial judge,
verbatim where appropriate.

[18] It is the finding of the learned trial judge that:

On 22 August 2000 at about 1.45pm, the accused (the Appellant
C
before us) joined three of his friends at the Weng Seng
Restaurant. They had lunch and some alcoholic drinks. The
accused had five to six glasses of beer and was talkative. He left
the restaurant in his car at about 7pm. He appeared normal and
did not look drunk. He telephoned DW4 just after 7pm. He told
D her that he was on his way home and that he was alright. He
told her not to worry. DW4 said that whenever the accused
comes back home late from work he would telephone her. On the
way back he would have paid toll at two points. Just before 8pm,
his car was parked across the road at Jalan Istana Baru. He was
standing on the middle of the road like a policeman manning a
E
roadblock. He stopped a motorcyclist who sped off immediately.
He then took out a gun from the ankle holster on his leg and
fired two shots in the air. PW4, who was driving a taxi, was then
stopped by the accused. In doing so, the accused pointed the gun
at him. When PW4 stopped the accused went towards him. The
F accused asked PW4 to get out. When PW4 got out of the car
the accused told him to stay there. The accused then pointed the
gun in the direction of PW4’s head and stomach. The accused
told PW4 to stand straight. When he did so the accused signalled
to him the ‘Good’ sign by showing the thumb. PW4 stood
straight for about ten minutes. The accused then walked towards
G a Perdana car on the right of PW4. He looked normal, was
steady and not staggering. He knocked at the windscreen and
driver’s side of the window of the Perdana with the gun asking
the driver to come out. The driver did not come out. The
accused tried to open the door and looked angry. He then moved
H to the front right side of the car and fired a shot which went
through the driver’s side of the Perdana. When PW6 shouted at
the accused he fired a shot in the direction of PW6. PW6 asked
everybody else to get out of their cars. The accused then fired
shots at a military truck. He then went towards a parked taxi and
was searching for the driver. The accused appeared confused and
I was walking aimlessly as if he was lost. He appeared to be
unconscious of his surroundings. He pointed his gun at the crowd
374 Current Law Journal [2006] 4 CLJ

whenever they tried to approach him. The accused was steady A

before his arrest. At the police station the accused slept on the
floor for about 20 minutes and became incontinent. When PW15
saw the accused at about 10.05pm, he was aggressive and had a
strong smell of alcohol. The accused kept referring to him as one
Khoo Ah Si. The accused was taken to the hospital at 12.30am. B
When PW8 saw him he was agitated, restless, abusive and
demanding to be freed of his handcuffs. He was alert and wanted
to contact his wife. The accused then wrote a note on a piece of
paper (exh P17). He was not aware why the police had arrested
him.
C
[19] Bearing in mind the verdict arrived at by the learned trial
judge the evidence of the chemist, Pua Hiang, (PW13) may also
be of significance. From the appeal record before us it is on record
that PW13 was attached to the Department of Chemistry,
Petaling Jaya. He testified that he analyzed the blood sample in D
exh. P19 and found it to contain 198mg of ethyl alcohol per
100ml and the urine sample in exh. P20B to contain 257mg of
ethyl alcohol per 100 ml. The results of the alcohol in the urine
as compared to that in the blood specimen were approximately in
the ratio of four to three. PW13 also expressed his view that the E
level of alcohol in the urine and blood would have some effects
on the person. PW13 further testified that when a person has
taken alcohol, there will be a period called the peak period which
peaks for a while before declining. And he said that based on the
urine and blood samples ratio results one can say whether the F
samples were taken at the peak period or not. PW13 went on to
say that it is possible to estimate the alcohol level in a person for
a certain period prior to the taking of the samples but it is by no
means accurate because in doing this estimation, there are certain
variables, though not absolute, require consideration. The variables G
include body weight. The number of times that a person has
urinated prior to the taking of the specimen can be a variable for
the urine test but not the blood test.

[20] At the end of the case for the prosecution the learned trial
H
judge ruled that he was satisfied that ‘the prosecution has made
out a prima facie case of murder (under s. 300(d)) against the
accused’. He then called upon the appellant to enter on his
defence for the offence of murder. The appellant chose to give
evidence on oath.
I
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 375

A [21] In ruling that there was a case to answer for murder under
s. 300 with the fourth clause of the mental element applicable (the
learned trial judge referred to it as cl. (d) of s. 300 which we
hereby adopt) the learned trial judge was satisfied that the twin
requirements of cl. (d) had been fulfilled.
B
[22] On the first prerequisite that ‘the person committing the act
must know that it is so imminently dangerous that it must in all
probability cause death, or such bodily injury as is likely to cause
death’ the learned trial judge after expounding the related legal
C principles gave the factual reasons for being so satisfied by saying
this:
I then considered the facts of the case in order to determine
whether the accused had the required knowledge. When the
motorcyclist sped off, he fired two shots in the air. When he
D stopped PW4, he did not fire as PW4 had followed the
instructions that were given. He then knocked at the windscreen
at the driver’s side of the window of the Perdana asking the
driver to come out. He only fired after the person refused to
open the door of the car. It was a response to his orders not
E being obeyed. The shot was fired at point blank range at the front
windscreen of the car. If the door had been opened the accused
would not have fired the shot just as in the case of PW4. He
was in a position to decide when to fire and when not to. He
was therefore conscious of what he was doing. The conduct of
the accused in firing the shot shows that it was done with
F absolute callousness towards the result. It was in general disregard
for human life and safety. This clause is usually applied in such
cases (see Janardan Prasad v. State of Rajasthan). The use of a
firearm by the accused is significant. It is a lethal weapon. Where
a shot is fired at a person there is a strong probability that it will
G cause death or such bodily injury as is likely to cause death. This
is particularly so in this case bearing in mind the circumstances
in which the shot was fired at the deceased. The shot was fired
from outside at the deceased who was seated inside the car.
Obviously, it will hit the upper part of the body of the deceased
where the vital organs are. Accordingly the bullet fired by the
H accused hit the chest area of the deceased and PW16 said that
the injuries sustained were necessarily fatal. Firing at a person at
close range with a pistol in the circumstances as in this case is
an evident risk to human life. It is a risk which is both
threatening and near. It amounts to an act which is so imminently
I
dangerous that it must, in all probability, cause death or such
bodily injury as is likely to cause death. As Wanchoo CJ said in
Kanji v. State [1953] Cr LJ 434 at p 435:
376 Current Law Journal [2006] 4 CLJ

We are, therefore of the opinion that where a person takes A

the risk of shooting at another the act would ordinarily be
an imminently dangerous act which must in all probability
cause death or such bodily injury as is likely to cause death
and the case would be covered by the fourth clause in
s. 300. B
It can be presumed that a person had knowledge of the danger
of his act (see Bhagat Singh v. Emperor 121 IC Lah 726; Ranji v.
State 1952 RLW 145). As Dixit J said in Gyarsibai v. State at
p 62:
C
Every sane person – and in this case we are bound to take
it that the appellant was sane – is presumed to have some
knowledge of the nature of his act. This knowledge is not
negatived by any mental condition short of insanity.

An act which is necessarily fatal carries with it knowledge of its D

consequences (see Emperor v. Mt Dhirajia). Thus, no special
knowledge is needed to know that one may cause death or such
bodily injury as is likely to cause death by shooting as in the case
of setting fire to the clothes of a person (see State of Madhya
Pradesh v. Ram Prasad). Similarly, it has been held that the act of
an accused in jumping into a well with her children is clearly one E
done by her knowing that it must in all probability cause the death
of her children (see Emperor v. Mt Dhirajia). This presumption
may of course be rebutted. In my opinion, the degree of
knowledge that is required can therefore be fastened on the
accused from the imminently dangerous nature of the act itself of F
shooting at the deceased at point blank range based on a decision
made for that purpose. As I have explained earlier, the fact that
he was in a state of intoxication does not exclude him from
liability under cl (d). In Kanji v. State, the accused who was
heavily drunk shot at a boy with a gun from a distance of about
ten paces and the shot struck the abdomen of the boy who died G
shortly afterwards. It was held that the accused was guilty of
murder under this clause … Needless to say, if the level of
intoxication of the accused was so high that he did not know that
what he was doing was wrong or did not know what he was
doing the burden is on him to bring his case within the meaning H
of s. 85(2)(b). I was therefore satisfied that the prosecution had
established this ingredient.

I
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 377

A [23] Similarly for the second prerequisite of ‘the act must have
been committed without any excuse for incurring the risk of
causing death, or such injury’ the learned trial judge also reviewed
the legal principles relevant to it and then said this:

B In this case, the accused was not in the plight of the woman as
in the case that I have just referred to. He shot at the deceased
when she refused to open the door of her car and had absolutely
no reason to do so. In such circumstances, the firing of the shot
at her is wholly inexcusable both on legal and moral grounds. It
does not fall within any of the exceptions enumerated in s. 300. I
C was therefore satisfied that the prosecution had established that the
act of the accused was wholly inexcusable.

[24] The Court of Appeal held that that aspect of the ruling by
the learned trial judge at the end of the case for the prosecution
D was correct. In its judgment the court stated:
We are of the view that the learned trial judge was correct in
ruling as such. In arriving at that decision he had extensively and
correctly appraised the law. We would agree with his finding that
the following ingredients of murder under section 300(d) of the
E Code have been established at the conclusion of the case for the
prosecution …

Besides being satisfied that the facts are capable of coming within
the ambit of section 300(d) of the Code, the learned trial judge
was also of the view at the conclusion of the case for the
F prosecution that the fact that the respondent was in a state of
intoxication does not exclude him from liability under section
300(d).

There was clearly a prima facie case against the respondent which,
if unrebutted, would warrant his conviction and the learned trial
G
judge was correct in calling upon the respondent to enter on his
defence. The learned trial judge correctly observed that “intention”
is not a necessary element in section 300(d) of the Code and all
that is required to be proved is “knowledge” that the act is likely
to cause death.
H
[25] However in his final judgment at the end of the whole case
the learned trial judge said this, inter alia:
In the light of my finding on hypoglycaemia the alternative
defence submission of intoxication becomes a live issue. In view
I of the similarity of the symptoms of hypoglycaemia and
intoxication as testified by the experts the behaviour of the accused
378 Current Law Journal [2006] 4 CLJ

at the material time must have been caused by intoxication. I had A

called upon the accused to enter his defence on that basis. With
my rejection of hypoglycaemia the reason for the accused’s slow
recovery and incontinence at the police station becomes clear.
DW3 said that the slow recovery and incontinence of the accused
is consistent with intoxication. The accused’s incontinence will B
throw light on the stage of his intoxication at the time of the
incident. In accordance with the Dubowski Chart it would have
been at the upper level. This means that his blood alcohol level
at the time of the incident would have been very much higher
than what was revealed by the samples taken at 1.20 am. It
follows that he would have had more than six glasses of beer. In C
any event, as I said in an earlier part of the judgment, the
defence of intoxication can be established without the support of
scientific evidence. Thus having considered the whole of the
evidence adduced it is my firm finding of fact that the accused
was in a state of intoxication at the time of the incident. I am
D
therefore satisfied, on the balance of probabilities, that the state of
intoxication of the accused at the material time, which I have
explained in an earlier part of the judgment, precluded him from
forming the necessary intention.

However, in finding that a case had been made out against the E
accused under cl (d) I had proceeded on the basis that it is the
direct consequence of intention having been negated by
intoxication that rendered the other parts of s. 300 inapplicable.
My research has now raised the question of the manner of
ascertaining the existence of intention where intoxication is in
issue, that is to say, whether such a determination must first be F
made without taking intoxication into consideration. I had brought
this view to the attention of both parties in their submissions at
the end of the defence case. They agreed with what I have set
out below as the correct approach to determine intention in a case
involving intoxication. G

It is settled law that an inference of intention can be rebutted by

evidence of intoxication pursuant to s. 86(2). In cases where
intoxication is in issue, the court must determine whether the
accused had the requisite specific intent in the light of his
intoxication (see R v. Sheehan [1975] 2 All ER 960); Kennedy v. H
HM Advocate [1944] SC (J) 171; Bratty v. Attorney General for
Northern Ireland). The critical matter for deliberation is whether a
finding on the relevant mens rea must first be made before taking
intoxication into consideration. This will have a determinative effect
on the precise limb of s. 300 that is applicable in cases of this
I
nature. The onus of proof where intoxication is raised as a defence
is on the accused.
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 379

A …

I shall now consider the mens rea under which the accused acted.
Before doing so it is necessary to consider the distinction
between intention and knowledge. Generally stated intention is the
purpose or design with which an act is done. It is the fore-
B knowledge of the act, coupled with the desire of it. Knowledge is
an awareness of the consequences of the act. There is a close
relationship between intention and knowledge.

…
C Thus, knowledge of a consequence which is virtually certain will
be evidence of intention. An intention can be inferred from the
nature of the act of a person (see R v. Monkhouse [1849] 4 Cox
CC 55). The nature of the weapon used and the part of the body
to which the injury is caused may also facilitate the drawing of
D such an inference. In this case the accused fired the shot from
outside the car into its driver’s side through the front windscreen.
The shot hit the upper part of the body of the driver where the
vital organs of the body are situated. The shot is virtually certain
to cause death and the accused must be presumed to know this.
The act of the accused in firing the shot was deliberate as it was
E done following the refusal of the deceased to open the door of
the car. The deliberate use of a dangerous weapon at another
leads to the irresistible inference that it was done with the
intention to cause death (see Tham Kai Yaw & Ors v. Public
Prosecutor [1977] 1 MLJ 174). Furthermore, the act of the
F accused in firing the shot was not one of accident or negligence.
In Behari v. State AIR 1953 All 203, it was held that where the
injury caused is not the result of accident or negligence a strong
presumption arises that the injury caused was intended to be
caused though this presumption may be rebutted. That would be
so even if there was no intention to cause death.
G
…

The circumstances in which the shot was fired therefore go

beyond mere knowledge and it must be inferred or presumed that
it was done so intentionally. Thus, the facts of the case fall within
H s. 300(c) where intention is in issue. Clause (d) only applies
where no other part of s. 300 is applicable. Thus in a case like
this where the intention of the accused as inferred from the result
of his act could at least be that of causing such bodily injuries as
the accused would have known to be likely to cause death cl. (d)
I will have no application.
380 Current Law Journal [2006] 4 CLJ

… A

In Behari v. State AIR 1953 All 203, it was held that cl (d) does
not apply to cases where a person intends to inflict an injury likely
to cause death. The charge against the accused under cl (d)
cannot therefore stand as the applicable section is s. 300(c).
B
The presumption of the absence of intoxication which facilitated a
finding that the accused acted with intention as envisaged by
s. 300(c) is displaced by the evidence of intoxication on record to
show that he did not have the requisite intention. This means that
the act of the accused which gave rise to an inference of intention
C
has been rebutted. However, the fact remains that it is a case
which initially fell under s. 300(c). It is on that basis that s. 86(2)
became applicable. It is also on that basis that cl (d) became
inapplicable. However, the facts are sufficient to make out a case
under s 304(b) which does not require an intention to cause death
or to cause such bodily injury as is likely to cause death. Such a D
course was adopted in cases such as Suba Singh v. Public
Prosecutor; Tan Hung Song v. R and Public Prosecutor v. Teo Heng
Chye. Thus, I am unable to agree with the submission of the
prosecution that the facts of the case disclose a case under cl (d).
Accordingly, I find the accused guilty of an offence under
E
s. 304(b).’

[26] The vexed question therefore is whether, having come to a

finding that the appellant was intoxicated at the material time the
learned trial judge was precluded ipso facto, as he held, by reason
of the application of s. 86(2) from considering cl. (d) of s. 300 of F
the Code despite the availability of evidence to warrant such
consideration. As noted earlier on the learned trial judge at the
end of the case for the prosecution called for the defence of the
appellant on the basis that mens rea under cl. (d) had been
established. No doubt he attempted subsequently to clarify his G
ruling by saying this:
In view of the similarity of the symptoms of hypoglycaemia and
intoxication as testified by the experts the behaviour of the accused
at the material time must have been caused by intoxication. I had
H
called upon the accused to enter his defence on that basis.

[27] The Court of Appeal did not agree with the approach and
the final conclusion of the learned trial judge. The court
emphasised that ‘knowledge’ as embodied in cl. (d) is also a mens
rea for the offence of murder under the Code. And after referring I
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 381

A to the dicta of Yong Pung How CJ in Juma’at bin Samad v. PP

[1993] 3 SLR 338 the court held, inter alia, that where cl. (d) had
been established s. 86(2) did not apply. In fact even the learned
trial judge expressed a similar view earlier on in his judgment when
he said this:
B
Thirdly, s. 86(2) provides that where the accused is intoxicated,
voluntarily or not, his intoxication is to be taken into account for
the purpose of determining whether he had formed any intention,
specific or otherwise. The sub-section does not refer to other
mental elements such as knowledge or rashness. In Director of
C Public Prosecutions v. Majewski [1977] AC 443, the House of Lords
has confirmed the rule that evidence of self-induced intoxication
negating mens rea is a defence to a charge of a crime requiring a
specific intention but not to a charge of any other crime. It
follows that s. 86(2) will have no application in the case of
D offences requiring such other mental elements.

It will be observed that cll (a), (b) and (c) of s 300 contemplate
intention in one form or another. In cl (a), it is intention to cause
E death. In cll (b) and (c), it is intention to cause bodily injury. On
the other hand, there is no requirement of an intention to cause
death or bodily injury in cl (d) of s 300 (‘cl (d)’). Thus, intention
is not a necessary element in cl (d); all that is required to be
proved is knowledge that the act is likely to cause death (see Inder
Singh v. Crown [1928] ILR 10 Lah). It has been held that this
F clause is intended to apply only when there is no intention to
cause death, or in other words, when the three earlier clauses are
inapplicable (see Hasta Ismail v. Emperor AIR 1937 Lah 593;
Behari v. State AIR 1953 All 203). Section 86(2) is therefore
applicable to cll (a), (b) and (c) of s. 300 and inapplicable to
G cl (d). (emphasis added).

[28] As indicated earlier, before us, on the issue of intention and

knowledge for the offence of murder, learned counsel for the
appellant submitted rather forcefully that since the learned trial
judge had held that the mental element required to be proved
H
under the charge against the appellant was intention, but which
was absent due to his intoxicated state at the material time, his
defence should not even have been called and that the only
proper verdict should have been an acquittal.
I
382 Current Law Journal [2006] 4 CLJ

[29] In our view the foregoing argument presupposes that the A

learned trial judge was correct in his approach on the construction
and application of s. 86(2) (intoxication) in relation to the mens rea
of murder under the Code, in particular cl. (d).

[30] Our answer to the argument is that s. 86(2) only affects B

those offences which require intention, specific or otherwise, and
excludes other types of mens rea. But since cl. (d), involves merely
knowledge and not intention, it is therefore not within the ambit
of s. 86(2). Put it in another way, intoxication is irrelevant in
securing a conviction for murder if knowledge as per in cl. (d) is C
proved beyond reasonable doubt by the prosecution. Such
conclusion may appear to be preposterous. But that appears to be
the position of the law for now. The difficulty posed by s. 86(2)
was recognized and discussed in the case of Juma’at bin Samad v.
PP (supra) where it was said at p. 344: D

It is to be noted that an anomalous consequence of the drafting

in s. 86(2) is that it applies only where the mens rea for the
offence is intention, in contradistinction to offences requiring other
forms of mens rea specified in the Penal Code, for example,
knowledge or rashness. The result is somewhat disturbing; for E
example s. 86(2) would apply to a charge of murder under
section 300(a), (b) or (c) but not to a charge of murder under s.
300(d). However the words of the provision are clear and the
consequences though discomfiting are not of such degree of
absurdity as would justify the court departing from a literal F
interpretation.

[31] Hence, in our view the direction taken by Court of Appeal

in coming to its decision is right.

[32] Anyway, we would also say at this juncture that the G

approach advocated by the learned trial judge where intoxication
is in issue may be correct if guidance is taken only from the cases
he referred to and cl. (d) does not exist as a mens rea for murder.
Further, it is also a matter of true construction and application of
s. 86(2) of the Code. H

[33] Putting aside cl. (d) for the moment, it is trite law that
intention may be inferred from the known relevant facts and on
the totality of the surrounding circumstances. Thus, in our view
where intoxication is in issue the process of determining the state
I
of mind of an accused person at the time of commission of the
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 383

A offence for which he is charged should be by way of inferences

from the known relevant facts and on the totality of the
surrounding circumstances including his conduct at the material
time and taking into account the evidence of his intoxicated state
and not by way of ‘ascertaining the existence of intention where
B intoxication is in issue, that is to say, whether such a
determination must first be made without taking intoxication into
consideration’ .
[34] In other words, the application of s. 86(2) entails that if
C there is evidence of intoxication before a trial judge, he should
take such fact into account and to determine whether it is weighty
enough to leave him with a reasonable doubt about the accused’s
guilty intent. Section 86(2) and hence intoxication, in our view,
should not be construed as providing an unqualified exception or
D excuse for an offence which requires intention, specific or
otherwise. Indeed the provision only stipulates that where intent,
specific or otherwise, is an essential element of a particular offence,
evidence of the state of drunkenness rendering the accused
incapable of forming such intent should be taken into consideration
E in order to determine whether he had in fact formed the intent
necessary to commit the particular crime. If he was so drunk at
the material time that he was incapable of forming the intent
required he would not be convicted of the crime which could only
be committed with the required intent, specific or otherwise.
F
[35] Reverting to the present appeal we are of the view that
affirming the approach adopted by the learned trial judge in
determining mens rea when intoxication is in issue would
tantamount to side-stepping cl. (d) as one of the elements of mens
rea for the offence of murder. It would mean that on a charge for
G
murder where the defence is intoxication an accused person does
not have to be concerned with cl. (d) and may conveniently
disregard its existence. With respect, in our view such an
approach would firstly render s. 85 otiose. Secondly, it might even
be perceived as a license to commit murder under the cover of
H
intoxication. In Juma’at bin Samad v. Public Prosecutor (supra) Yong
Pung How CJ (Singapore) noted that ‘the scope of s. 86(2)
generously extends to voluntary intoxication, a legal excuse which,
…, can never put an accused in a more favourable position than
another accused who pleads any of the other defences.’ And the
I
learned Chief Justice went on to say that the fact that there seems
384 Current Law Journal [2006] 4 CLJ

to be an ‘anomalous consequence of the drafting in s. 86(2)’ A

should not detract this court from giving it a literal interpretation.

[36] Our foregoing view is not without judicial precedent. In

Broadhurst v. The Queen [1964] 2 WLR 38 (PC) the appellant was
charged for the murder of his wife. The jury acquitted him of the B
charge but convicted him for ‘causing grievous bodily harm from
which death shall ensue’ under s. 234 of the Criminal Code of
Malta. The sole defence of the appellant was that he could not
remember how the event happened since he was drinking heavily
earlier on. On appeal to the Privy Council s. 35(4) of the Criminal C
Code of Malta which is in pari materia to our s. 86(2) came up
for consideration. The section reads:
(4) Intoxication shall be taken into account for the purpose of
determining whether the person charged had formed any intention,
specific or otherwise, in the absence of which he would not be D
guilty of the offence.

[37] In dealing with the section the opinion of the board is

instructive. This is what Lord Devlin said at p. 51:
E
Under subsection (4) it would appear that drunkenness is to be
taken into account for the purpose of determining whether the
person charged had in fact formed any intention necessary to
constitute the crime.

[38] Having expressed his view on the difficulty presented by the F

proposition of law in Director of Public Prosecutions v. Beard [1920]
AC 479 in particular on the requirement of incapacity of forming
the specific intent essential to constitute the crime, Lord Devlin
went on to reemphasize the scope of s. 35(4) by saying:
G
Prima facie intoxication is one circumstance to be taken into
account, and on this view all that section 35(4) is doing is to
make it plain that intoxication is not to be excluded.

[39] His Lordship also provided a guide in the application of

s. 35(4) by saying, albeit indirectly, that the issue of intoxication H
may be disregarded when there is nothing at all to suggest that
an accused person was incapable of forming the intent. He said
this:

I
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 385

A Before the Board the Crown conceded that it is not for an

accused to prove incapacity affecting the intent and that if there is
material suggesting intoxication the jury should be directed to take
it into account and to determine whether it is weighty enough to
leave them with a reasonable doubt about the accused’s guilty
B
intent. Their Lordships approve this concession.

...

It is not enough to show that before the event the accused had
been drinking very heavily (as the Chief Justice told the jury, the
effect of alcohol varies greatly with different people) and that when
C
examined after the event he was pronounced to have been under
the influence of alcohol.

[40] In our view the corollary to what was said by Lord Devlin
on the application of s. 35(4) is similar to what was said by the
D learned trial judge earlier on in his judgment and which was
approved by the Court of Appeal albeit tacitly, in that where
intention is not the required mental element to constitute the
crime the fact of intoxication (s. 86(2)) poses no difficulty.

E [41] Incidentally and just as a matter of interest, s. 13(4) of the

Penal Code of the Republic of Zambia has a similar provision as
our s. 86(2). In the case of Tembo v. The People [1972] ZR 220
(CA) the Zambian Court of Appeal held that to constitute
‘evidence fit to be left to a jury’ for the purposes of s. 13(4) there
F must be evidence that an accused person’s capacities may have
been affected to the extent that he may not have been able to
form the necessary intent.

[42] Thus, with all due respect we are therefore unable to agree
with the subsequent approach undertaken by the learned trial
G
judge when he said that ‘the court must first make a finding on
the relevant mens rea before embarking on a consideration of the
defence of intoxication’ vis-à-vis s. 86(2). In our view the purpose
of proved intoxication envisaged in s. 86(2) is quite apart from the
defence of intoxication under s. 85(2). Indeed one may say that
H
s. 86(2) is not a ‘defence-giving’ provision similar to some other
provisions in the Code.

[43] Thus, the answer to the vexed question is that cl. (d), being
one of the categories of mens rea for the offence of murder as
I defined in s. 300 of the Code, should not be disregarded even if
s. 86(2) is raised. The reason is simply because under s. 86(2) the
386 Current Law Journal [2006] 4 CLJ

fact of intoxication is only a circumstance to be taken into A

account in proving intention where the mental element of an
offence is one of intention, specific or otherwise and if knowledge
is the required mental element s. 86(2) does not apply. Indeed the
learned trial judge and the Court of Appeal were in ad idem on
the inapplicability of s. 86(2) where knowledge is the element of B
mens rea to an offence and in fact earlier on in his judgment the
learned trial judge rightly put it in this way:
Where, therefore, s. 86(2) is rendered inapplicable in a particular
case by virtue of knowledge only being the ingredient to be C
proved it must be taken to mean that an intoxicated person had
the same knowledge as he would have had if he had not been
intoxicated. This is the inevitable result as the exclusion of
intoxication as a factor to be considered in determining liability
simply means that it warrants no consideration at all. Of course,
if the level of intoxication of a person is so high that he did not D
know that what he was doing is wrong or did not know what he
was doing, the burden is on him to bring his case within the
meaning of s. 85(2)(b).

[44] Further, a plain literal interpretation of cl. (d) in s. 300 of

E
the Code allows no other reasonable meaning other than to say
that knowledge is another element of mens rea for the offence of
murder. Of course the twin requirements of that clause, namely,
(a) the person committing the act must know that it is so
imminently dangerous that it must in all probability cause death,
F
or such bodily injury as is likely to cause death; and (b) the act
must have been committed without any excuse for incurring the
risk of causing death, or such injury, must be established before it
can be said that that mens rea has been proved. A plethora of
cases have also answered any doubt that knowledge is a sufficient
G
mens rea for the offence of murder. (See: Hashim bin Mat Isa v.
Public Prosecutor [1950] MLJ 94; William Tan Cheng Eng v. Public
Prosecutor [1970] 2 MLJ 244 (also [1969-1971] SLR 115); Kanji
v. State [1953] Cr LJ 434; Manindra Lal Das v. Emperor [1937]
AIR Calcutta 432; Behari v. State AIR [1953] All 203).
H
[45] We venture as well to say that had the learned trial judge
maintained the course that he took at the end of the case for the
prosecution his final verdict might have been similar to that of the
Court of Appeal. It should be noted that the learned trial judge
did not accept the sole defence relied upon by the appellant, I
namely automatism by reason of him undergoing a hypoglycaemic
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 387

A episode at the material time. Upon rejection of that sole defence

and with s. 86(2) only applicable to the first three categories, the
verdict would have been quite obvious subject of course to proof
to the standard of beyond reasonable doubt by the prosecution
of all the elements for the offence of murder including the
B prerequisites to be established in cl. (d).

[46] We are therefore of the view that there is no merit in the

contention of learned counsel for the appellant that the defence
should not have been called at the close of the case for the
C prosecution.

[47] The next question is whether the Court of Appeal, relying

upon cl. (d), was correct in reversing the decision of the learned
trial judge. In so doing the Court of Appeal said this, inter alia:
D At the conclusion of the case for the prosecution, the learned trial
judge found that the prosecution had made out a prima facie case
of murder under section 300(d) of the Code against the
respondent and called upon him to enter on his defence. We are
of the view that the learned trial judge was correct in ruling as
E
such. In arriving at that decision he had extensively and correctly
appraised the law. We would agree with his finding that the
following ingredients of murder under section 300(d) of the Code
have been established at the conclusion of the case for the
prosecution, namely:

F (a) that the respondent knew that his act of discharging the gun
at the deceased at such close quarters is so imminently
dangerous that it must in all probability cause death or such
bodily injury as is likely to cause death; and

(b) that the act of the respondent was wholly inexcusable.

G
Besides being satisfied that the facts are capable of coming within
the ambit of section 300(d) of the Code, the learned trial judge
was also of the view at the conclusion of the case for the
prosecution that the fact that the respondent was in a state of
intoxication does not exclude him from liability under section
H 300(d).

There was clearly a prima facie case against the respondent which,
if unrebutted, would warrant his conviction and the learned trial
judge was correct in calling upon the respondent to enter on his
defence. The learned trial judge correctly observed that “intention”
I
is not a necessary element in section 300(d) of the Code and all
that is required to be proved is “knowledge” that the act is likely
to cause death.
388 Current Law Journal [2006] 4 CLJ

… A

On the day of the incident, the respondent was armed with a

loaded gun which he kept in an ankle holster. We are of the view
that he cannot be regarded as a person having no knowledge
about the dangerous character of a loaded gun which is clearly a
lethal weapon. The learned trial judge ruled at the close of the B
case for the prosecution, and we agree, that at the time of the
incident the respondent was sufficiently conscious of what he was
doing. In his judgment, the learned trial judge held:

(i) the sequence of events indicate that he had sufficient mental

C
capacity to be responsive enough to make a decision;

(ii) he was sufficiently conscious of what he was doing when he

fired the fatal shot as a result of a decision made by him
following a refusal to obey his instructions;
D
(iii) he was in a position to decide when to fire and when not
to; he was therefore conscious of what he was doing;

(iv) the conduct of the respondent in firing the shot shows that
it was done with absolute callousness towards the result.
E
The fact, as found by the learned trial judge, that the respondent
was intoxicated at the time he shot the deceased is no excuse.
Section 85(1) of the Code clearly provides that save as is
provided in the section and in section 86, intoxication shall not
constitute a defence to any criminal charge. We also cannot see
how intoxication can be available to him as a defence under F
section 85(2) of the Code; the intoxication, if at all, was admittedly
self-induced and therefore, he must be deemed to have committed
the act with the same knowledge as he would have had if he had
not been intoxicated. The charge he is facing is murder under
section 300(d) of the Code. The mens rea for that offence is
G
“knowledge” and not “intention”.

...

Similarly in the instant appeal before us, we cannot ignore and

overlook the lack of cross-examination of witnesses called before
H
and after defence was called touching upon intoxication. We also
cannot ignore the fact that the “alternative” defence of intoxication
was only suggested for the first time during the defence
submission at the conclusion of the trial. We further cannot ignore
the fact that the foundation for such a defence had not been
properly laid. I
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 389

A Section 182A of the CPC provides that at the conclusion of the

trial, the Court shall consider all the evidence adduced before it
and shall decide whether the prosecution has proved its case
beyond reasonable doubt and if the Court finds that the
prosecution has proved its case beyond reasonable doubt, the
B
Court shall find the accused guilty and he may be convicted on
it. In this instant appeal, on the evidence, we are of the
unanimous view that the learned trial judge had misdirected
himself in fact and in law and ought to have found the respondent
guilty on the original charge of murder. The facts are sufficient
to bring the case within the ambit of section 300(d) of the Code
C and the act of the respondent would fall within the definition of
murder. The invocation of section 300(c) of the Code by the
learned trial judge is altogether erroneous. Intention is not a
necessary element of an offence under section 300(d). All that is
needed is knowledge that the act is likely to cause death. The
emphasis in section 300(d) is on the imminently dangerous
D
character of the act itself. Further, section 300(d) is usually
applied where the act of the offender is in general disregard for
human life and safety. What is clear from the evidence is the
respondent did not know the deceased. He discharged the gun in
absolute callousness towards the result. The act of the respondent
E cannot fall within the purview of section 304(b) of the Code. He
has committed culpable homicide amounting to murder and the
offence committed by him clearly fall under section 300(d) of the
Code. All the evidence proved beyond doubt that he had
performed the act knowingly and voluntarily and hence must be
guilty of an offence under section 302 of the Code. The
F
respondent had failed to show on a balance of probabilities that
he did not know that his act of discharging his gun at the
deceased at such close quarters is so imminently dangerous that
it must in all probability cause death or such bodily injury as is
likely to cause death. The learned trial judge’s ruling at the
G conclusion of the trial that the facts cannot fall within section
300(d) of the Code cannot be supported having regard to the
evidence. On the evidence it was clearly open to the learned trial
judge to find that it was established beyond reasonable doubt that
the respondent caused the death of the deceased.
H We are unanimously of the view that the appellant is guilty of
murder under section 302 of the Code and hence, we accordingly
allowed the appeal by the Public Prosecutor, substituted the
conviction under section 302 of Code in place of the conviction
under section 304(b) of the Code and sentenced the respondent
I to death by hanging.
390 Current Law Journal [2006] 4 CLJ

[48] It was submitted before us that in reversing the decision of A

the learned trial judge the Court of Appeal interfered with the
findings of facts as found by the former, in particular on the issue
of intoxication. It was submitted that an appellate court should be
slow in interfering with any finding of fact by a trial court. To this
preposition of law we agree subject of course to certain B
qualifications such as where there is clear justification for doing so
(see: Eng Mee Yong v. Letchumanan [1979] 2 MLJ 212) or where
the finding relates to an inference made by the trial judge in which
case an appellate court will be more readily to interfere as the
appellate court would be in an equally good position as the trial C
judge to make the determination (see: China Airlines Ltd. v.
Maltran Air Corp. Sdn. Bhd. [1996] 3 CLJ 163).

[49] In this instant appeal the Court of Appeal did interfere with
the finding of the learned trial judge on his finding of the appellant D
being in an intoxicated state at the material time but having read
the judgments of both courts we would say that such interference
by the Court of Appeal was more in the nature of interference on
the inferences to be given from the proved set of facts in which
case the Court of Appeal would have also been in an equally E
good position as the learned trial judge to make the determination.

[50] For instance in finding that the appellant was intoxicated at

the material time the learned trial judge said this:
… the defence of intoxication can be established without the F
support of scientific evidence. Thus, what is more pertinent is
evidence of the state of mind of the person at the material time.
The best evidence to establish his state of mind is his conduct
prior to, at the time of, and after the offence. I say this because
what is in issue is the effect of intoxication on the state of mind G
of the person in order to determine whether he could have formed
the necessary intention. This is best reflected by his conduct and
not the level of his intoxication. The blood alcohol level is certainly
an element, and an important one, to explain his conduct. The
significance of the conduct of a person as an indicator of his level
of intoxication is illustrated by the Federal Court case of Liew H
Koh Tai v. Public Prosecutor [1965] MLJ 54 where, on the facts
of the case, the conduct of the accused was held to negate
intoxication. In Rajeevan Edakalavan v. Public Prosecutor [1998] 1
SLR 815, the rational behaviour of the accused coupled with low
blood alcohol level was held to be unsustainable to support the I
plea of intoxication. In Tan Hung Song v. R, it was recognized that
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 391

A a blood alcohol reading of 215mg of ethyl alcohol to 100ml of

urine shows that a person was in a certain state of intoxication.
In Public Prosecutor v. Tan Ho Teck [1988] 3 MLJ 264, part of
the evidence that established the heavy intoxication of the accused
was the fact that his blood was found to contain 232mg alcohol
B
per 100ml of blood.

[51] The learned judge also found the following to be indicative

of the intoxicated state of the appellant at the material time,
namely:

C (i) his behaviour of stopping his car in the middle of the road;

(ii) firing shots at those motorists who did not comply with his
instructions;

(iii) he made no attempt to flee from the scene of the incident;

D
(iv) he was walking aimlessly as if he was lost and appeared to
be unconscious of his surroundings;

(v) while at the police station, he slept off and passed urine and
E
faeces in his pants;

(vi) no caution was administered to him by PW15 simply

because PW15 saw that he was under the influence of
alcohol and was aggressive;
F (vii) he used vulgar words to find out why he was arrested;

(viii) he referred to PW15 as Khoo Ah Si;

(ix) the doctor who examined him (PW8) said that clinically, he
was under the influence of alcohol though he was alert.
G
PW8 also said that he had smell of alcohol in his breath, his
face was flushed, he had a staggering gait, his hand was
unsteady, he had slurred speech and was in a state of
extreme agitation; and
H (x) his blood sample was found to contain 198mg of ethyl
alcohol per 100ml and his urine sample contained 257mg of
ethyl alcohol per 100ml.

[52] On the other hand the Court of Appeal came up with the
I following findings or inferences on the same issue when it said this:
392 Current Law Journal [2006] 4 CLJ

Looking at the facts, it appears that there is no evidence to show A

that the respondent was intoxicated at the time of the incident.
PW14, the owner of the said restaurant said the respondent
looked normal and did not look drunk when he left the said
restaurant. DW5, the respondent’s colleague who was at the lunch
said that the respondent was not affected by drinks, his speech B
and behaviour was usual and he did not misbehave. When they
left the said restaurant the respondent was normal and he saw
him walking to his car. PW4, the taxi driver at the scene said
the respondent looked steady and was not staggering when
walking. He also did not “get any smell” from the respondent.
PW7, the police officer who arrested the respondent observed he C
was steady before his arrest. In his evidence, the respondent even
insisted that he was not highly intoxicated on the day of the
incident. He could even recall what clothes he wore on that day
and the number of glasses of beer he consumed. The defence did
not elicit any evidence concerning the matter of intoxication but
D
submitted on intoxication only at the conclusion of the trial.

Looking at the above we are of the view that even if the

respondent was intoxicated as found by the learned trial
E
judge, on the evidence he was not in a highly advanced stage of
drunkenness as not to know what he was doing for the following
reasons:

i. he could drive after leaving the said restaurant and could

consciously negotiate a route where he has to pass through F
two toll gates; the respondent was in full control of his car
as a car surely cannot be driven along a road in the city of
Kuala Lumpur without the mind directing the limbs for the
journey;

ii. he could make a telephone call to his wife to say he was on G

his way home at 7.15pm;

iii. at the scene of the incident, when he tried to stop a

motorcyclist who then sped off, he was capable of drawing
his gun from an ankle holster and was able to squeeze the
trigger to fire a couple of rounds in the air; he was also able H
to talk to PW4, the taxi driver and was in position to give
instructions which could easily be understood; subsequently,
he was able to aim the gun at the deceased, squeeze the
trigger and shoot her through the windscreen and later, at
PW6 and also the military land rover; I

iv. at about 11.15pm at the IPK, he was able to have an

intelligent conversation with PW15 and specifically request
that he be allowed to make a telephone call to Tan Sri Musa
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 393

A Hitam;

v . when he was being examined by PW8 at about 1.15am on

23 August 2000, he was able to sign the consent form for
the taking of blood and urine samples, to write an intelligible
note to Professor Dr Ernest Yeoh requesting him to make a
B call to his wife at a given telephone number to inform her
about the arrest and for her to make a call to Tan Sri Musa
Hitam; further, he was able to have an intelligent
conversation with PW8 about his health, was able to answer
her questions and give her the details requested for and was
C very cooperative throughout the examination.

In the instant appeal, we are of the view that the weight of

evidence clearly established that the respondent was very much in
D control of his actions despite the alcohol he consumed. The
evidence showed that at the place of the incident, the respondent
was capable of moving himself independently and was able to
converse with others. There was no evidence to show that he
was staggering or was incoherent in his speech; PW4 could
comprehend him. We find that he has failed to prove any
E incapacity as would be available to him as a defence. There is
nothing to show that his mind was so affected by the alcohol he
had consumed that he was incapable of knowing that what he was
doing was wrong. When a man is charged with murder, we do
not think it is a defence for him to say that he does not
F remember a thing. (emphasis added).

[53] Having considered the reasons of the Court of Appeal for

making such findings or inferences we are inclined to agree with
it. We are also of the view that the conclusion of the Court of
Appeal is more tenable. In coming to such view we are well aware
G
of the maxim that in the event of doubt it must be given
favourably to an accused person. (See: Tan Hung Song v. Rex
[1951] MLJ 181; Public Prosecutor v. Lin Lian Chen [1991] 1 MLJ
316; Chiu Nang Hong v. Public Prosecutor [1965] 1 MLJ 40). But
this is not the case here. In fact, despite the testimony of
H
witnesses called by the prosecution that the appellant could have
been drunk at that time, the learned trial judge went on to find
at the close of the case for the prosecution that there was a case
to answer for the charge of murder with cl. (d) as the mental
element. And at the defence stage the allegation of drunkenness
I
was contradicted by the witnesses called by the appellant.

[54] Accordingly, having given the complaint our serious

consideration we find no justification in finding that the appellant
394 Current Law Journal [2006] 4 CLJ

was unfairly and unjustly prejudiced by such exercise of the Court A

of Appeal. In fact the Court of Appeal went on to say that even
if accepting the finding of the learned trial judge that the appellant
was in an intoxicated state at the material time he was not in
such a state that he had no knowledge of what he was doing.
B
[55] In view of the basis for calling the defence at the end of the
case for the prosecution, the rejection of the sole defence of the
appellant, namely, automatism by reason of him undergoing a
hypoglycaemic episode at the material time and the finding by
inference of knowledge as defined in cl. (d) of s. 300 of the Code C
both by the learned trial judge (albeit at the close of the case for
the prosecution) and by the Court of Appeal, (see: Wong Nam Loi
v. Public Prosecutor [1998] 1 CLJ 37; Tay Kah Tiang v. Public
Prosecutor [2001] 2 SLR 305) we have no reason to find that the
decision of the Court of Appeal is erroneous in law and in fact. D

[56] We have already alluded to that part of the judgment of the

Court of Appeal indicating its reasons for concluding ‘that the
weight of evidence clearly established that the respondent was
very much in control of his actions despite the alcohol he
E
consumed.’ In fact it is very much in line with the earlier
approach adopted by the learned trial judge when calling for the
defence of the appellant. As we have said hereinabove if the
learned trial judge did not retract from his earlier direction in
construing the application of cl. (d) he could have arrived at the
F
same conclusion as that of the Court of Appeal. We would
therefore hold that the Court of Appeal was correct in its
approach, the reasons given and thus its decision.

[57] In this instant appeal the relevant mens rea is covered by cl.
(d) and we have already expressed our view on the issue. As such G
the consideration of ‘intention’ that confronted the courts in
Zambia and the Privy Council does not arise.

[58] For the reasons we have expressed hereinabove we are of

the view that cl. (d) of s. 300 of the Code should not have been H
omitted by the learned trial judge in his overall consideration of the
case simply on the basis that intoxication is in issue and s. 86(2)
could be invoked.

I
 [2006] 4 CLJ Kenneth Fook Mun Lee v. PP 395

A [59] We have also considered the other complaints of the

appellant but we do not think our determination on any of them
would have altered the conclusion we have arrived at herein.

[60] Accordingly we find no reason to reverse the decision of the

B Court of Appeal. This appeal is therefore dismissed and the
conviction and sentence passed by the Court of Appeal are
hereby affirmed.