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The first issue in this case is, whether the defendant is liable under the charge of

S.300/302 of the Penal Code regarding to the offence of committing murder with

intention.

We agreed that intoxication which provided under S.85(2)(b) of the Penal Code is

a defense and it should be read together with S.86(1) and S.84 of the Penal Code.

However, we found that there is difference between this case with the case of PP. Tan Ho

Teck where the accused in the concerned case was actually experienced delirium

tremens that caused by drinking too much alcohol and which caused him unable to know

what he was done at the particular time was wrong. In our case, we found that the

respondent cannot rely on this defense as at the moment the respondent committed the

crime, she was actually soundness by looking at the facts that she was able to go to the

kitchen, took a sharp knife and headed to the deceaseds bedroom consequently killed the

deceased then ran away after her commission as we reasonably believe that she was

feeling guilty after her commission.

Therefore, by applying the S.300 (d) of the Penal Code which regarding to the

knowledge of the respondent during her commission, we were satisfied that the

respondent was having the knowledge to kill the deceased.

We were also satisfied that the respondent was actually able to form the specificintention before killing the deceased. We reasonably believe that the great changes of the

respondent after her parents forced her to do the abortion also denotes the great

possibility for the respondent to take aggressive ways, murder, in order to protect her

baby due to the great hatred although there is a proximity relationship between the

respondent and the deceased. Therefore, the requirement which provided under S86(2) of

the Penal Code has been fulfilled and the appeal is allowed.

Regarding to the second issue which is the respondent is liable under S.338 of the

Penal Code for causing the grievous hurt within the meaning of the S.320(h) of the Penal

Code. We were satisfied that there was grievous hurt which fall within the meaning of

S.320(h) of the Penal Code suffered by the victim. The 3 elements provided in S.320(h)

of Penal Code have been fulfilled by the appellant as the blood clot denotes the great

possibility for the victim to suffer fatal disease which may endanger the life of the victim.

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Besides, we found that the severe injury to the victims head that hurt the brain has

ironically caused the victim suffering coma exceeded the term of 20 days provided under

S.320(h) of the Penal Code and due to the coma, the victim was unable to carry out his

ordinary pursuits. Therefore, the grievous hurt has been successfully proved by the

appellant.

To determine whether the respondent is liable under the S.338 of the Penal Code,

we have to determine whether the respondent can rely on the defense of necessity. By

referring to the illustrations which provided in S.81(a) and (b) of the Penal Code, both

illustrations referring to the circumstance where the incidents happened were not caused

by the self-inducing of the accused. In this case, the accident was induced by the

negligence of the respondent in which the respondent did not take the precaution while

she was driving. On the balancing evils approach, I found that , it should be read

together with the possibility of the victim to escape as at the time, there was possible for

the mother with the children to avoid the crash of the respondent by diving aside to their

original place or immediately cross the road. Compared to the victim in this case, actually

he did not have much ways to prevent himself or escape from the crash. Therefore, the

respondent is failed to measure the balancing of evils.

We also found that it is hard to apply the case of Umar Bin Ali in our case to

defense the respondent as in our case, the imminent circumstance was induced by the

respondent herself and it will be unfair if she is granted with the defense of necessity

although there is the existence of good faith of her to prevent from crash with the

mother and the two children. Therefore, both appeals are allowed and the respondent is

liable under S.300/302 and S.338 of the Penal Code.

The second issue in this case is, whether the defendant is liable under the charge

of section 338 Penal Code regarding to the offences of committing grievous hurt.

The public prosecutor had appealed under section 338 and the lawyer rose up

section 81 which is necessity as a defence in this case.

It was argued that the respondent had no criminal intention to crash her fathers

car which came from opposite road even though she knew that the act of altered lane will

cause injury of her father. But there is a necessity, if she didnt go to the opposite road

which will hit her fathers car, she will cause the death of a woman and two children.

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Furthermore we can consider this situation faced by the respondent is an extreme and

immediate situation when she suddenly found that there are three people cross over the

road and she unable to stop the car.

The 3 element of defence under necessity have been proved where it is the act

done without criminal intention, the act done in good faith for the purpose of preventing

or avoiding other harm or greater evil to others.

To compare between greater evil and lesser evil under necessity, the most

commonly adopted solution to the problem is the balancing of evils approach. By

putting a reasonable man in that situation, I would say that the act of the respondent

driving rashly or negligently is justified by necessity of saving three innocent lives. The

respondent alter the lane is done by good faith to save the life of the lady and two

children. She had no much time to choose alternative way but by natural reaction of a

reasonable man, alter from her lane ; The act of altered the lane is not only causing

grieves hurt on the victim, it will also causing hurt on the respondent too, therefore the

act of driving rashly or negligently is to save the three innocent lives.

By applying the principle in the judgment of US v Holmes, the peril in this case is

instant, overwhelming, leaving no alternative but to lose her own life or to take the life of

another person. I would say that the act of the respondent causing hurt on the appellant by

driving rashly or negligently is a justified by exception of necessity in this case which the

act is to save the life of the lady and two child. The appeal dismissed.

To summarize before the court of appeal, the respondent has been charged with two

charges before the court which are:

1. committing murder with intention under Section 300/302 of the Penal Code

2. causing grievous hurt within the meaning of section 320(h) of the Penal Code

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For the ground on necessity by virtue of Section 81 of the Penal Code, the

Respondent was failed to prove that the requirement of this defence was fulfilled. The

requirement needed here is the element of bona fide on the part of Respondents action.

Even though the Respondent argued that the action done was based on the necessity to

lesser the consequence of the situation, the court today would reject the defence of

necessity by referring to the basis principle that a person does not have any right to cause

hurt to another. Besides, the Respondent at the first place should be driving with proper

care to evade from the unwanted incident. This is the basic regulation on the road which

every driver in this Federation should focus on because the road users are not only the

drivers. Hence, the second defence of necessity relied by the Respondent was rejected.

The second charge which been brought by the prosecutor is causing grievous hurt

within the meaning of Section 320(h) of the Penal Code. According to the said provision,

the grievous hurt included;

(a) emasculation;

(b) permanent privation of the sight of either eye;

(c) permanent privation of the hearing of either ear;

(d) privation of any member or joint;

(e) destruction or permanent impairing of the powers of anymember or joint;

(f) permanent disfiguration of the head or face;

(g) fracture or dislocation of a bone;

(h) any hurt which endangers life, or which causes the sufferer

to be, during the space of twenty days, in severe bodily

pain, or unable to follow his ordinary pursuits.

The prosecution had came out with the definition of grievous hurt which could

endanger life enumerated in Section 320(h) of the Code by referring to the case ofRamla

v State of Rajasthan whereby DS Dave J had defined the meaning of endanger life.

According to DS Dave J, what can be constituted as endanger to life is;

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An injury may be grievous only if it endangers life. This means that the injury

which is actually found should itself be such that it may put the life of the injured in

danger. A simple injury cannot be called grievous simply because it happens to be

caused on a vital part of the body, unless the nature and dimensions of the injury or its

effect are such that in the opinion of the doctor it actually endangers the life of the

victim.

The court today agree with the definition given by the learned judge in the above

case whereby not all types of injury could be classified as grievous injury unless

prescribed so by the experienced medical professionals and being tested to bring

permanent harm and even in some situation cause disability towards someone. As for the

case that have been brought before us today, the court viewed that the blood clot suffered

by Mr. Frank as the consequence of the accident included in the definition listed in

Section 320 of the Penal Code.

Therefore, the court today allows the prosecution on both charges and the accused

is sentenced to death mandatory by virtue of Section 302 of the Penal Code.