A three-member Court of Appeal bench, chaired by Lee Swee Seng, said the trial judge had taken all the relevant factors into consideration in amending the murder charge to culpable homicide not amounting to murder.
“We see no reason to interfere in the exercise of discretion by the judicial commissioner,” he said in dismissing an appeal by the prosecution to order Ooi Chang Ang to enter defence for murder.
Lee said the trial judge was entitled to look at exceptions to murder at the close of the prosecution’s case after considering all the evidence.
The other members of the panel were Lee Heng Cheong and Ahmad Nasfy Yasin.
Ooi committed the offence against Ong Ting San, 61, at a house at Jalan Sri Kijang in Taman Sri Kijang, Bukit Mertajam, Penang between 4.45pm and 5.30pm on Aug 18, 2016.
Lee said the murder charge was not proved under a maximum evaluation test, although there was tension between the men at the crime scene as testified by the investigating officer.
“There was also no element of premeditation as revealed by prosecution witnesses,” he said.
He said it was clear that there was a fight over a durian which Ong had sold to Ooi that turned out to be a bad fruit.
“He sought a replacement but the victim refused. Instead, the victim threw the durian back at the accused,” he said.
Lee said Ooi was angry and felt cheated and had gone home to retrieve a knife before returning to the scene. He chased Ong and stabbed him.
The judge said it was unsure if Ong could have survived if he had been properly attended to by hospital medical staff.
“Further, the medical officer who accompanied the victim to the Seberang Perai hospital was not called to testify,” he said.
Police had initially classified the case as causing grievous hurt, but reclassified it as murder after Ong died.
Lee said Ooi did not take advantage of the situation or had been cruel or acted in an unusual manner.
“The trigger point was the quarrel which arose after the victim sold a bad durian which he refused to replace,” he said, adding that each was armed with a knife and either one could have overpowered the other.
Court-assigned lawyer GC Tan represented Ooi while deputy public prosecutor Mohd Fairuz Johari appeared for the prosecution.