IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: Q-05-197-07/2014
PUBLIC PROSECUTOR ….APPELLANT
1. ZURAINI BIN BAHAR
2. GAIRIL BIN MUSTAPA
3. ALIZAM BIN BAHAR
4. ZULISKANDAR BIN BUSTAMAN …..RESPONDENTS
(In The Matter Of High Court Of Sabah And Sarawak At Limbang Criminal Trial No: LMN – 45-302-1/4-2013)
Zuraini Bin Bahar Paisal Ak Baro Gairil Bin Bahar Alizam Bin Bahar Adi Izuanie Bin Zuraini Zuliskandar Bin Bustaman Mohd Raimmy Bin Jumat Helmi Bin Wahab Fazilah Bin Abd Rahman
DAVID WONG DAK WAH, HMR ABDUL RAHMAN SEBLI, HMR ZAMANI A. RAHIM, HMR
JUDGMENT OF THE COURT
1. This is an appeal against the decision of the High Court in which the learned Judge discharged and acquitted the nine accused at the end of the prosecution case premised on the ground that the prosecution had failed to prove a prima facie case against all the accused.
2. The charge against the nine accused reads as follows:
“Bahawa kamu bersama seorang lagi yang masih bebas pada 21 September 2012 jam lebih kurang 7.30 p.m. dihadapan kedai runcit Hiap Soon Trading Co. Pekan Lawas, di dalam daerah Lawas di dalam Negeri Sarawak adalah ahli perhimpunan yang menyalahi undang-undang di mana tujuan bersama kamu adalah untuk mengakibatkan kematian Edwin Singa (KPT: 930716-13-6503) dan semasa kamu semua ahli perhimpunan tersebut satu atau lebih dari satu daripada kamu dalam melaksanakan tujuan bersama kamu telah melakukan bunuh dengan menyebabkan kematian Edwin
Singa (KPT: 930716-13-6503), iaitu satu kesalahan di mana ahli-ahli perhimpunan mengetahui mungkin dilakukan dalam melaksanakan tujuan bersama perhimpunan tersebut dan dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 149 Kanun Keseksaan dan boleh dihukum di bawah Seksyen 302 Kanun tersebut.”
3. The prosecution appealed against the learned Judge’s ruling only in respect of 1st,3rd, 4th, and 5th accused. When we commenced the hearing of this appeal, we struck out the appeal against the 3rd accused which is the 2nd Respondent in this appeal as the prosecution had failed to serve the notice of hearing for three consecutive occasions but proceeded to hear the appeal in respect of the 1st, 4th and 5th accused.
4. The 1st Respondent is the 1st accused while the 3rd Respondent and 4th Respondent are the 4th and 6th accused respectively.
5. We heard the appeal and after due consideration to respective submissions of counsel, we dismissed the appeal and our reasons are these.
6. The factual matrix was largely undisputed and is as set out by the learned DPP in his submission which we adopt with appropriate amendments. On 21.9.2012 at about 3.00 p.m., PW8 and the deceased were having a drink at a small park known as Taman Rusa or Taman Payau (page 169 NOP). At about 6.00 p.m. while PW8 and the deceased were still drinking, the 3rd accused and a group of about 20 persons approached them and a quarrel ensued between PW8 and the 3rd accused (page 170 NOP). PW8 and PW9, who is the mother of PW8 and who had just arrived at Taman Rusa, were attacked by the 3rd accused and the group of people. PW8 and PW9 ran to the road (see sketch plan exhibit P72(a)) chased by the 3rd accused and the group who then went back to Taman Rusa (see police report exhibit P4).
7. Subsequently a group of people was seen chasing the deceased from Taman Rusa, across the road, towards the back of a row of shops, where Hiap Soon Trading was situated. One of them was seen to be carrying a baseball bat and one was carrying a motorcycle helmet. The deceased was found lying in a pool of blood at a spot marked ‘E’ in exhibit P72(a), in front of
Hiap Soon Trading. He was pronounced dead at 8.42 p.m. at Lawas Hospital on that night (see exhibit P10).
8. What was in dispute was whether the prosecution evidence had adequately identified 1st, 2nd, 3rd and 4th Respondents/ accused as part of the 20 people that had chased the deceased and caused his death.
9. As correctly pointed out by the learned Judge, for the Court to sustain a prima facie case pursuant to s.149 and s.302 of the Penal Code, the prosecution needed to prove as follows:
(a) the death of the deceased;
(b) that the deceased died as a result of injuries sustained by him;
(c) that the injuries of the deceased which resulted in the deceased’s death were caused by the acts of the accused persons or some or any of them being members in an unlawful assembly in prosecution of the common object of that assembly to commit an offence or to inflict injuries to the deceased; and
(d) in inflicting the injuries upon the deceased, the accused persons either caused them with the intention of causing death, or caused them with the intention of causing such bodily injuries as the accused persons knew to be likely to cause the death of the deceased, or caused them with the intention of causing bodily injuries and such bodily injuries were sufficient in the ordinary course of nature to cause death, or caused them with the knowledge that the acts were so imminently dangerous that they must in all probabilities cause death and committed such acts without any excuse for incurring the risks of causing death or such injuries as aforesaid.
10. The crucial issue of fact in the High Court was whether the prosecution had proved that the 1st to 4th Respondent were among the members of the 20 people who had caused the death of the deceased. The aforesaid issue in our view was also the crucial issue before us.
11. The learned Judge in his grounds had concluded that the prosecution’s evidence fell far short what is required in law for a prima facie case to be established. In brief, the learned Judge found as a fact that the prosecution had relied on circumstantial
evidence and those evidence had not proved that the Respondents were being members in an unlawful assembly in prosecution of the common object of that assembly to commit an offence or to inflict injuries to the deceased.
Our grounds of decision:
12. The learned DPP in his submission had correctly listed two issues for our consideration and they are as follow:
(a) Whether the application of section 149 Penal Code is the same as the application of section 34 of the same?
(b) Whether the prosecution succeeded in identifying the offenders who caused the death of the deceased?
13. In respect of issue (a) aforesaid, learned DPP referred to the cases of Mohd Haikal Bin Mohd Khatib Saddaly & Ors v PP (2009) 4 MLJ 305, Francis & Ors v Public Prosecutor (1959) 1 LNS 28, Cheah Beng Poh & Ors v Public Prosecutor (1984) 2 MLJ 225, Sukha v State of Rajasthan AIR 1956 SC 513 and Tan Kheng Ann 7 Ors v Public Prosecutor (1965) 2 MLJ 180 and then submitted that when there are a congregation of five or more persons with a common object to commit an offence, any person who committed
the offence would cause the “trawler’s net” of section 149 of the
Penal Code to come down and operate effectively, on all members of the congregation, irrespective of the fact that the others may not participate in the act of the commission of the offence, in this case the hurt caused to the deceased which led to his death.
14. The complaint here by the learned DPP against the learned Judge was simply that the learned Judge had wrongly applied the principle of law set out by him on the factual matrix of the prosecution’s case. Whether or not, the learned Judge had wrongly applied the aforesaid principle required us to deal with the manner in which the learned Judge dealt with the evidence.
15. But before we deal with the learned Judge’s analysis of the prosecution evidence, we found that the learned Judge in our view was fully aware of the implication of section 149 of the Penal Code and this was evident in paragraph 15, 16 and 17 of his grounds which read as follow:
15. S.149 of the Penal Code refers to the common object
of the assembly as opposed to a common intention of several persons in s.34 of the same Code. A common object is different from a common intention in that it does not require proof of a pre-arranged plan or prior concert or a
common meeting of minds before the attack. An unlawful object can develop after the people get there: Sukha & Ors v State of Rajasthan AIR 1956 GC 513; Mohd Haikal Mohd Khatib Saddly & Ors v PP  5 CLJ 369; Fam Meng Siong & Anor v PP  7 CLJ 557.
16. S.149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case falls within the section, the fact that he did nothing with his own hands becomes immaterial. After such a finding it would be not be open to the court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts: Lalji & Ors v State of UP AIR  SC 754.
17. In this case, the charge was that the accused persons being members of an unlawful assembly in prosecution of a common object had caused the death of the deceased. Culpable homicide and murder are defined in s.299 and s.300 of the Penal Code respectively.
16. We had no issue with the learned Judge’s view of the law as it had been correctly set out. With that we now move to issue (b) aforesaid.
17. It must be noted from the outset that the appeal relating to the 2nd Respondent (3rd accused) had been struck out by this Court, the effect of which in our view was simply the acquittal of the 2nd Respondent remains. In other words, no prima facie case had been made out against him and the learned Judge’s analysis of the evidence relating to 2nd Respondent must be taken by us as correct.
18. It was undisputed that the prosecution had relied on circumstantial evidence to prove its prima facie case. The testimonies relied on were that of PW3, PW8, PW11, PW12, PW13, PW27 and PW28. There was no direct visual evidence of any of the Respondents causing the injuries on the deceased which led to his death. What the prosecution had was that there was a quarrel between the 2nd Respondent and the deceased which had resulted in a chase by a group of people and the deceased was later found dead.
For us to sustain the learned DPP’s contention, we had to
determine whether or not the learned Judge had evaluated the evidence properly as required by law.
1st Respondent/ 1st accused:
20. From the grounds of the learned Judge, he held the view that the only evidence against the 1st Respondent was from PW28 who testified that he was the person who drove the red Proton car to Taman Rusa and also he had not alighted from the car. That was the sum total of the evidence against the 1st Respondent. The learned Judge in our view correctly found that the 1st Respondent did not have a case to answer.
21. The aforesaid conclusion was not reached without any thoughtful analysis by the learned Judge and this can be seen from paragraphs 55 – 57 which read as follow:
55. That meant the 1st accused was at all times seated in the car. The prosecution did not adduce and there was no evidence that the 1st accused while seated inside the car had given instructions or directions or had instigated the others to slap or chase or attack the deceased in prosecution of the
common object of the unlawful assembly on that night. On the facts and circumstances of this case, merely being seated in the car did not make or constitute the 1st accused to be a member of the unlawful assembly on that night.
56. There was no evidence by PW28 or by any of the prosecution witnesses that the 1st accused was involved in any quarrel or fighting or had slapped the deceased or had chased the deceased to Hiap Soon Trading where the deceased was attacked. PW28 also did not testify that the 1st accused had attacked or had inflicted any injury on the deceased. If the 1st accused was in any way involved, PW28 would have testified as such but PW28 did not do so.
57. There was no evidence that the 1st accused was a member of the unlawful assembly or had intentionally joined or taken part in the unlawful assembly with a common object to attack or to commit an offence against the deceased or had continued to be a member of the unlawful assembly being aware of the common object to attack or to commit an offence against the deceased or in prosecution of the common object of that assembly.
22. Thus it can be seen that the learned Judge had properly evaluated the evidence and hence it was not surprising that we see no submission from the learned DPP on the acquittal of the 1st Respondent. Further we say that when it had been established
that the 1st Respondent was not part of the chasing group to impute an intention common to the group on him would be speculative at best. Intention of group can be formed at any time up to the commission of the act which caused the death of the deceased.
3rd Respondent/4th accused and 4th Respondent/6th accused.
23. The central issue here is basically whether the evidence of PW13 had clearly identified the 3rd and 4th Respondents as “persons” in the chasing pack.
24. The learned Judge had found the evidence of PW13 to be suspect and his reasons can be summarized as these:
(a) PW13 had testified that when he went down to see the fighting at Taman Rusa, he saw only 5 to 7 persons. This evidence was found to be inconsistent with the evidence of PW8 who said that there were about 20 persons present.
(b) PW 13 had testified that a group of five persons including the 2nd Respondent, 3rd Respondent and 4th Respondent were chasing the deceased towards Hiap Soon Trading. This testimony contradicted what PW28 had said and that
was when he saw a group of people chasing the deceased, he saw a red Proton car passed by him which was driven by 1st Respondent with the 4th Respondent inside the car. In other words, the 4th Respondent could not be part of the group then as he was still in the Proton car.
(c) PW13 in his initial testimony had not mentioned the presence of the 4th Respondent but did later but could not explain as to how the 4th Respondent appeared in the chasing pack.
(d) PW13 had only known the deceased briefly prior to the incident and he only knew his name through someone. Hence there was doubt as to whether PW13 had identified the man he saw being chased was in fact the deceased.
25. The learned Judge in reaching his conclusion had in fact
examined the testimony of PW13 when re-examined by the
prosecution and this was what he said:
70. The flaws in his evidence and identification of the 3rd, 4th and 6th accused were amplified in his re-examination by the learned DPP at pages 287 – 289 NOP as follows:
“Q: You agreed with the counsel that the situation was
dark at that time. Thus, how did you manage to identify Adee, Edwin, Gairil, Jul and Sam?
A: I was told by other people.
Q: What do you mean you were told by other people?
A: The other people who saw the incident.
Q: Did you see Adee, Edwin, Gairil, Jul and Sam at
Q: Why you said you were told by other people that Adee, Edwin, Gairil, Jul and Sam at Taman Rusa?
A: I saw Edwin and Adee at Taman Rusa but the rest I did
not see at Taman Rusa. I was only told by other people.
Q: I repeat, did you see Gairil, Jul and Sam at Taman
Q: What do you mean when you said earlier on you did
not see Gairil, Jul and Sam at Taman Rusa?
A: I did see Gairil, Jul and Sam at Taman Rusa.
Q: Can you explain why earlier you said you did not see
A: I saw Gairil but I did not see Jul and Sam at Taman
Q: Why earlier you said you could see Jul and Sam at
A: First during the fight I saw Adee, Edwin and Gairil.
After a red proton car came I saw Sam. They were chasing Edwin then I saw Jul.
Q: When you said you manage to identify Adee, Edwin,
Gairil, Sam and Jul, did you see their faces?
Later at pages 290 – 291 NOP, PW13 was asked as follows:
“Q: You told the court just now you managed to identify Adee, Edwin, Gairil, Jul and Sam based on their faces. Why earlier you agreed with the counsel that you only assumed of their identities?
A: I agreed because I cannot see their faces clearly and I
only see their figures.
Q: When did you cannot see their faces clearly?
A: At Taman Rusa.
Q: While Gairil, Sam and Jul were chasing after Edwin,
can you see their faces clearly?
A: Not very clearly.
Q: What do you mean not very clear?
A: Because I saw from quite far.
Q: At that particular time were you sure they were Gairil, Sam, Jul and Edwin?
71. Based on his answers to the series of questions asked of him and to his testimony having been contradicted by the testimonies of PW3 and PW28, there were serious doubts whether PW13 actually saw or could identify or was told by others that the 3rd, 4th and 6th accused were at Taman Rusa on that night. It also raised serious doubts on his identification of the 3rd, 4th and 6th accused.
26. The testimony of PW13 are at page 317 – 355 of volume 1 of the Record of Appeal and we have examined them with care and can only conclude that the learned Judge had come to a conclusion which was not only correct but a reasoned conclusion premised on established evidence of the prosecution. We have read the submission of the learned DPP and we are not convinced by it that the learned Judge had erred.
27. At this juncture, we must not forget that the prosecution case was premised on circumstantial evidence and in such context, it is absolutely necessary to apply strictly the burden of proof and the
accused is presumed to be innocent unless the evidence positively proves guilt beyond reasonable doubt or irresistibly point to the one and only conclusion of the guilt of the accused. In the context of this case, the evidence had not passed the aforesaid test in so far as the identification of the 3rd and 4th Respondents as members of the chasing pack on the day of the incident.
28. We found in this appeal where the learned Judge had dealt with and subjected the prosecution evidence to maximum evaluation and had premised his conclusion on established evidence. Hence we found no merit in this appeal and not safe to call upon the Respondents to enter their defense bearing in mind that the law requires that the defense can only be called when the evidence is such that if the Respondents had remained silent they would be convicted of the offence as charged. That standard of proof was one of beyond reasonable doubt which as we had pointed out above had not been met.
29. Accordingly, this appeal was dismissed and the discharge and acquittal of the Respondents were upheld.
Dated: 26 February 2016
(DATUK DAVID WONG DAK WAH)
Court of Appeal Malaysia
For the Appellant: TPR Tn. Awang Armadajaya Bin
Awang Mahmud (with him TPR Tn. Muhammad Tajul Ariffin Bin Musa)
For the 1st Respondent and standing in for counsel of the
4th Respondent: En. Narmal Singh (Assigned Counsel)
NARMAL SINGH & JB SINGH ADVOCATES
For the 3rd Respondent: En. Ranbir Singh Sangha (Assigned
RANBIR S. SANGHA & CO. ADVOCATES & SOLICITORS
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision.