Donny @ Mohd Nazmie Bin Musanna v Pendakwa Raya

Case Significance

Illustrates that voluntary intoxication rarely negates the intention or knowledge required for murder, and that under the Abolition of Mandatory Death Penalty Act 2023 the appellate court may substitute imprisonment and whipping for a death sentence while upholding the conviction.

This Court of Appeal decision concerns an appeal against a conviction and death sentence for murder, and the treatment of intoxication and circumstantial forensic evidence. The appellant had been convicted at the High Court of murder under section 302 of the Penal Code and sentenced to death by hanging, the charge being that he had caused the death of the deceased, an older man, during the early hours after a drinking session at which both were present. An eyewitness testified to seeing the appellant punching and kicking the deceased about the head and face while the deceased was seated. On appeal, the appellant challenged whether the trial judge was correct to find that it was he who inflicted the fatal head and facial injuries; whether the absence of the deceased's bloodstains or DNA on his clothing and footwear raised a reasonable doubt; and whether his voluntary intoxication rendered him incapable of forming the requisite intention or knowledge for murder. The Court rejected the intoxication defence, holding that the appellant's intoxication was not such as to negate the intention or knowledge the offence required, and found the challenge to the forensic gaps unpersuasive against the direct account of the assault. It agreed with and upheld the trial judge's decision on conviction. On sentence, however, and in light of the alternative punishment introduced by the Abolition of Mandatory Death Penalty Act 2023 — even though counsel had made no submission on the point — the Court was minded to substitute the death sentence with imprisonment for thirty years from the date of arrest together with twelve strokes of whipping. The judgment illustrates that voluntary intoxication rarely negates the mens rea for murder, and reflects the courts' exercise of the sentencing discretion under the 2023 Act to substitute a term of imprisonment for the death penalty.