IN THE COURT OF APPEAL OF MALAYSIA
CRIMINAL APPEAL NO: P-05-86-2011
RAVINDRAN A/L RAMASAMY … APPELLANT
PUBLIC PROSECUTOR . RESPONDENT
[In the matters of Criminal Trial No: 45-12-08 Before the High Court of Malaya in Pulau Pinang]
RAVINDRAN A/L RAMASAMY BETWEEN
Mohamed Apandi bin Haji Ali, JCA Linton Albert, JCA Hamid Sultan Bin Abu Backer, JCA
Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court)
 We heard the appellant’s/accused’s appeal on 27-02-2013 and on the same day we dismissed it. My learned brothers, Mohamed Apandi bin Haji Ali, JCA and Linton Albert, JCA have read the judgment and approved the same. This is our judgment.
 The appellant and another accomplice named Jayakumar (deceased) entered into a jewellery shop to rob on 14-01-2008. From the evidence of SP3 and SP5 it was clear that the appellant and the deceased had broken the glass display in the shop with a hammer and pocketed the jewellery into a bag. In that process, the deceased took out a gun from his pocket and had shot several times. There was no evidence to show that the appellant made any attempt to stop the deceased from using the firearm or dis- associate himself from the deceased when the firearm was used (emphasis is ours). After the robbery both ran out and the appellant was caught and the deceased managed to escape. Subsequently, on 27-03-2009 the deceased was shot dead by the police in a separate armed robbery operation.
 The appellant was charged with two offences. One under section 3A of the Firearms (Increased Penalties) Act 1971 (FIPA 1971) the other for robbery using a deadly weapon, i.e. a hammer. The appellant was found guilty of both the charges. On the first charge he was sentenced to death. On the 2nd charge he was sentenced to 10 years imprisonment and 10 strokes of the rotan. The appellant is not appealing on the 2nd charge but only the first which reads as follows:
“Bahawa kamu bersama-sama seorang lagi yang telah meninggal dunia, pada 14 Januari 2008, jam lebih kurang 11.00 pagi, di Kedai Emas Gayanthrii Tangga Maligai Jewellers, No. 42, Lebuh Pasr, dalam Daerah Timur Laut, dalam Negeri Pulau Pinang, telah melepaskan tembakan yang boleh menyebabkan kematian semasa melakukan rompakan di mana kamu mengetahui rakan sejenayah tersebut ada di bawah jagaan atau kawalannya senjata api dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 3A Akta Senjatapi (Penalti Lebih Berat)
1971 yang boleh dihukum di bawah seksyen yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan. ”
 What is important to note, under section 3A FIPA 1971 and section 34 of the Penal Code which deals with common intention is that one need not be the principal offender to be liable for the offence. Association in the crime and failing to show satisfactory dis-association from the crime or principal offender will attract the charge as well as the sentence as per decided cases in this area of jurisprudence. Section 3A FIPA 1971 reads as follows:
“Where, with intent to cause death or hurt to any person, a firearm is discharged by any person at the time of his committing or attempting to commit or abetting the commission of a scheduled offence, each of his accomplices in respect of the offence present at the scene of the commission or attempted commission or abetment thereof who may reasonably be presumed to have known that such person was carrying or had in his possession or under his
custody or control the firearm shall, notwithstanding that no hurt is caused by the discharge thereof, be punished with death, unless he proves that he had taken all reasonable steps to prevent the discharge. ”
Section 34 of the Penal Code reads as follows:
“When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone. ”
 It is well settled that for the prosecution to succeed in relation to a charge under section 3A of the FIPA 1971 it has to establish 5 essential elements of the offence, namely:
(i) The said scheduled offence was committed;
(ii) The accused was an accomplice;
(iii) The accused was present at the scene of the robbery;
(iv) The firearm was discharged within the meaning of section 2 of FIPA 1971;
(v) The accused may reasonably be presumed to have known that the person who discharged the firearm was carrying the same (emphasis is ours). The burden to disprove is one on the balance of probabilities as imposed by section 3A FIPA 1971.
 In PP v Choo Chuan Wang Edgar Joseph JR J (as he then was) had this to say:
“Thus, the onus is passed to the accused to prove, on the balance of probabilities that he had taken all reasonable steps to prevent the discharge of the firearm concerned. (emphasis is ours). However, the accused’s bare denial that he was a party to the robbery and his conduct at the scene of the crime could not possibly discharge the onus which lay upon him. ”
 Having said that, it must be noted that section 34 does not provide such a high burden on the accused. However, there must be some evidence at the trial either at prosecution stage or defence stage to show that the accused at the time of the incident had dis-associated from the criminal act to be relieved from section 34. For example, if several persons have joined hands to assault a person by hand and suddenly one of the accomplice takes a knife to assault, any accomplice who attempts to stop the other from using the knife or moves away from the incident will not be charged for murder or culpable homicide in the event the knife was used to kill the victim. The only offence at all the accomplice may face is for assault. [See Joginder Ahir v State AIR 1971 SC 1834].
 The difference between section 3A FIPA 1971 and section 34 inter alia is that the threshold burden for the prosecution to establish the case is low and the burden to disprove the case for the accused is on the balance of probabilities (high threshold). However, when section 34 is
relied on the threshold burden is high for the prosecution and burden on the defence is low, i.e. need not disprove on the balance of probabilities, and it will be sufficient if the defence cast a reasonable doubt. Further, the existence of a common intention among the participants in a crime is the essential element for the application of section 34 and in the absence of such common intention, the section has no application. [see Ashok Kumar v State of Punjab AIR 1977 SC 109]. It is also well settled in relation to section 34 that at times it is difficult if not impossible to procure direct evidence to prove the intention of an individual. In most cases it has to be inferred from his act or conduct or other relevant circumstances of the case. [see Suresh v State U.P. (2001) SCC]. On similar note the position under section 3A FIPA 1971 is not only the same but the threshold for the prosecution to satisfy this requirement is placed much lower than section 34.
 In the instant case, the learned judge had meticulously dealt with the elements of the offence at the prosecution stage and made a finding that the elements of the offence had been established. That part of the judgment reads as follows:
“Adalah juga sukar bagi Mahkamah ini membayangkan Tertuduh tidak mengetahui bahawa rakan sejenayahnya memiliki pistol ketika itu apabila menurut SP5, beliau mendengar tembakan pertama sejurus selepas Tertuduh memecahkan cermin-cermin tempat pameran apabila rakan sejenayah beliau memasuki kedai emas tersebut tanpa sesiapa mencabar atau melontarkan apa-apa peralatan ke arah mereka berdua. Tambahan pula, selepas tembakan pertama tersebut, Tertuduh bukan sahaja tidak melarikan
diri atau menahan rakan sejenayahnya dari melepaskan tembakan, malah sepanjang tempoh tembakan kedua dan ketiga oleh rakan sejenayahnya (menurut SP3 terdapat 3-4 kali tembakan). Tertuduh masih terus mengutip barang-barang kemas dan memasukkan ke dalam beg yang beliau bawa dan juga sebagaimana terbukti kemudiannya, di dalam pouch bag beliau. ”
 The appellant has filed a lengthy memorandum of appeal on issues of facts and pleads that if the deceased was alive his evidence would have been corroborated i.e. to say that he had no knowledge the gun was carried by the accused. The learned trial judge had written a lengthy judgment and had considered the defence in extenso. It is not in dispute during the defence stage the appellant had conceded to going to the jewellery shop to rob. That part of the evidence reads as follows:
“Mengenai pertuduhan kedua terhadap saya, saya mengakui bahawa pada 14.1.2007 jam lebih kurang 11.00 pagi tersebut, saya sememangnya ada pergi ke dedai emas Gayanthrii No. 42, Lebih Pasar, Pulau Pinang bersama Ramu tetapi tidak mengetahui yang Ramu mempunyai pistol dan bertujuan akan melepaskan tembakan pistol tersebut. Semasa di dalam kedai tersebut, saya tidak melihat siapa sebenarnya yang melepaskan tembakan. Saya hanya dengan bunyi tembakan dari arah belakang saya mendengar sebegitu. Saya terus berlari keluar. ”
 There is no evidence to suggest that the appellant dis-associated from the act of the deceased in discharging the firearm. In fact, evidence
from PW3 shows that the appellant did not leave the scene after the first gun shot by the deceased but he instead continued to pick up the jewelleries during the whole tenure of subsequent shots fired by the deceased. That part of the evidence during cross-examination reads as follows:
“Put: Apabila lelaki India lain tersebut menembak pertama kalinya, Tertuduh terus melarikan diri daripada kedai kamu.
J: Tidak, Tertuduh tidak lari semasa tembakan pertama tersebut. ”
Further PW3 in re-examination went on to say as follows:
“….Saya hanya ingat lelaki yang menembak tersebut bercakap kepada Tertuduh yang bermakna ‘kita keluar’ atau ‘Kilambuda ’ dalam Tamil yang bermaksud ‘kita keluar’.
Semasa lelaki India yang menembak tersebut melepaskan tembakan pertama Tertuduh sedang mengambil barang kemas. Seiurus selepas tembakan pertama itu, Tertuduh masih juga mengambil barang kemas daripada kaunter barang kemas saya. ”
 We have read the appeal record and the memorandum of appeal in detail. We could not find any evidence to show on the balance of probabilities that the appellant had taken all reasonable steps to prevent the discharge of the said firearm by the deceased. Mere denial of knowledge would not per se be sufficient to satisfy the burden placed
under section 3A FIPA 1971. Mere denial also will not be sufficient to relieve the accused of the elements of section 34 of the Penal Code.
 In conclusion we find the appeal has no merits. The appeal is dismissed and we affirm the decision of the High Court.
We hereby order so.
Dated: 12 April 2013
(DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER)
Court of Appeal Malaysia
Note: Grounds of judgment subject to correction of error and editorial adjustment etc.
Datuk N. Sivananthan with Cik Tina Ong Messrs Sivananthan Petaling Jaya Selangor.
Puan Kwan Li Sa Deputy Public Prosecutor Attorney General’s Chambers Putrajaya.