Ahmad Farid bin Mohammad Nasir v Public Prosecutor [2022] 4 MLJ 509

Court of Appeal (Putrajaya)

Elements of Robbery

1.     The Appellants in the two appeals herein (‘A1’ and ‘A2’) were jointly charged together with another person (‘Nik’) under Section 3 of the Firearms (Increased Penalties) Act 1971 (Act 37) with discharging a firearm with intention to kill a man (‘SP5’) while carrying out a robbery on a highway one night in January 2014.

2.     According to the prosecution’s case, SP5 was with his wife (‘SP7’) in a car he drove on the highway on the night in question when a sports utility vehicle (‘SUV’) collided into their rear.

3.     Both the vehicles then stopped by the road-side.  As SP5 was inspecting the rear of his car, the Appellants emerged from the SUV.

4.     SP5 approached A1 and demanded compensation for his dented rear bumper.  While SP5 was still inspecting his vehicle, A1 suddenly jumped into the driver’s seat of SP5’s car while A2 rushed back to the SUV.

5.     As SP5 was trying to pull A1 out of his car, he noticed a gun in A1’s hand.  A1 shot SP5 at the waist, causing him to fall backwards.

6.     A1 then sped off with SP7 still in the car and the SUV followed them.   Despite his injury, SP5 walked to the nearest petrol station where he got help to go to hospital for treatment.

7.     At the hospital, a bullet was recovered from the wound site and handed over to police.  The bullet had entered the front part of SP5’s waist and existed at the left buttock.

8.     Police later found SP7 unharmed at a road-side while SP5’s car was found abandoned in another area.

9.     Police arrested A1 about a week later and he led police to the recovery of a revolver and bullets.  The pistol and bullets were handed over to police by one Najmi Daniel.

10.  A police ballistics expert’s test confirmed that the bullet recovered from SP5 had been fired from the revolver.  At the end of the prosecution’s case, the trial judge acquitted and discharged Nik but called on the Appellants to make their defence.

11.  A1 denied robbing or shooting SP5.  He claimed that at the time there were two others in the SUV apart from himself, A2 and Nik, and that while he was trying to remove the car keys from SP5’s car, SP5 attacked him and just then he heard a gunshot ring out and saw SP5 falling to the ground.

12.  Fearing something bad had happened, A1 said he sped off in the car and later left SP7 by a road-side.

13.  The trial judge found that the Appellants had failed to cast a reasonable doubt on the prosecution’s case and convicted them and sentenced them to death.

Issue

1.     Whether the learned trial judge erred in failing to consider that the elements of robbery which formed the basis of the charge against the First Appellant had not been proven by prosecution.

1.    Elements of Robbery

(a)   The learned counsel submitted that the learned trial judge failed to consider whether the elements of robbery that have been proven by the prosecution amounts to a misdirection in law that warrants the acquittal of the First Appellant.

(b)   According to the learned counsel, there was no robbery committed when the firearm was discharged.  The First Appellant had merely completed the offence of theft by entering SP5’s car and closing the door without the use of any force.

(c)   It was further submitted that the discharge of the firearm against SP5 was separate and distinct from the act of theft of SP5’s car.

(d)   As such, the discharge of the firearm was only to facilitate the First Appellant’s escape due to SP5’s attempt to remove the First Appellant from SP5’s car.

(e)   In other words, the learned counsel submitted that the discharge of the firearm was committed after the commission of theft (which was not a scheduled offence), hence the elements under Section 3 of Act 37 had not been established by the prosecution.

(f)     However, the Court disagreed with the learned counsel due to several reasons.

(g)   Firstly, Section 3 of Act 37 provides that-

“Any person who at the time of his committing or attempting to commit or abetting the commission of a scheduled offence discharges a firearm with intent to cause death or hurt to any person, shall, notwithstanding that no hurt is caused thereby, be punished with death.”

(h)   Furthermore, Section 2 of Act 37 defines ‘scheduled offence’ as any offence enumerated in the Schedule to the Act.  Therefore, the offence of robbery is included in the Schedule.

(i)      With regard to the elements that must be proven by the prosecution for an offence under Section 3 of Act 37, the Court is stand by what has been decided by the Federal Court in Low Soo Song v Public Prosecutor [2009] 3 MLJ 36; [2009] 3 CLJ 309, where His Lordship Nik Hashim FCJ (as he then was) in citing with approval the decision of His Lordship Jeffrey Tan JC held that there are three elements that need to be proven by the prosecution for the offence under Section 3 of Act 37 namely-

1. That there was a robbery committed by the Appellant;

2. That the Appellant at the time of his committing the robbery discharged a firearm; and

3. That the Appellant intended to cause death or hurt to some person.

(j)      In determining whether the firearm was discharged by the First Appellant whilst committing robbery, the Court was of the considered view that the whole incident should be viewed as a single transaction based on what had been decided by the same Court earlier in Fairoz Azman bin Amironzuki lwn Pendakwa Raya [2021] 2 MLJ 771; [2021] 1 LNS 108.

(k)    Reverting to the facts of the present case, SP5’s car was initially hit from behind by the Toyota Wish.  SP5 and the First Appellant both got out of their respective cars.

(l)      While SP5 was still inspecting the rear side of his car, the First Appellant suddenly got into the driver’s seat of SP5’s car.  SP5 then tried to pull the First Appellant out.

(m)  He managed to open the door and grabbed the First Appellant’s shirt.  It was at this time the firearm was discharged by the First Appellant.

(n)   The whole incident was witnessed by SP7.  After shooting SP5, the First Appellant immediately drove away SP5’s car.

(o)   The First Appellant in his defence did not deny that SP5 was shot when he tried to open the door and attempted to remove the First Appellant from the car.  The First Appellant however denied having shot SP5 and claimed that he was shot from the outside.

(p)   Nonetheless, the Court found the defence version to be highly incredible.  Based on the evidence, the Court found that SP5 suffered a gunshot injury with an entry wound at the left lumbar and an exit wound at the left buttock.

(q)   Therefore, the Court safely concluded that SP5 was shot from the front.

(r)     It is therefore ludicrous to suggest that SP5 was shot from the side or from behind, thus negating the First Appellant’s defence that SP5 was shot from the outside of the car.

(s)     At the time when the firearm was discharged, SP5 was undoubtedly facing the First Appellant and his own car since he was trying to pull the First Appellant out of his car from the driver’s seat.

(t)     There was nobody else inside SP5’s car except the First Appellant and SP5’s wife.  Considering the position of the First Appellant and SP5 together with the gunshot injury suffered by SP5, the Court concluded that SP5 was shot by none other than the First Appellant.

(u)   The Court was also satisfied based on the evidence that the firearm was discharged at the time when the offence of robbery is being committed.

(v)    The offence of robbery was completed when the First Appellant drove away SP5’s car after shooting him.  The First Appellant was not merely trying to escape when he shot SP5.

(w)  In addition, the fact that the First Appellant discharged the said firearm towards SP5 clearly indicates the First Appellant’s intention was to cause death or serious injury to SP5.

(x)    Therefore, the Court held that the elements of the charge under Section 3 of Act 37 have been duly established by the prosecution, as correctly found by the learned trial judge.

(y)    To conclude, there was no misdirection on the part of the learned trial judge and as such, there is no merit to the issue raised by the learned counsel.

1.     The Court of Appeal dismissed the appeal and affirmed the decisions by the learned trial judge.

Key Take Away

1.     The crime of robbery in Malaysia is provided under Section 390 of the Penal Code (Act 574) where subsection (1) provides that robbery is consisting of either theft, or extortion, or both.

2.     Robbery is a hybrid offence that combines the elements of theft or extortion provided with the elements as laid out in Section 390.

3.     Therefore, in order to prove whether there exists the offence of robbery committed, the prosecution must either prove first that the accused has committed theft or extortion.