Goh Kooi Pheng V Public Prosecutor [2016] 6 MLJEVI 145

GOH KOOI PHENG v PUBLIC PROSECUTOR [2016] 6 MLJEVI 145

Court of Appeal (Putrajaya)

Identification Parade

Facts

1.     In this case, the Appellant was charged, convicted, and sentenced by the High Court for the murder of Yeoh Boon Khneg under Section 302 of the Penal Code (Act 574).

2.     Hence, this is an appeal made towards the conviction and the sentence.

3.     Goh Yew Chai (‘PW4’) worked at the deceased’s Winner Communication cellphone store. Another employee who is Teh Koon Hee (‘PW8’) worked at the deceased’s construction company during the day and volunteered at the deceased’s Winner Communication at night.

4.     According to PW4, the Appellant came to the shop around 9 p.m. on the day in question and wanted to buy a prepaid card worth RM30.00. The Appellant left when he discovered that the prepaid card was out of stock.

5.     The Appellant then returned to the shop, pretending to buy an RM 100.00 prepaid card before shooting the deceased and fleeing the scene on a motorcycle parked in the shop’s corridor.

6.     When the gun was shot, PW8 was bending down, searching for the prepaid card while PW4 was walking towards PW8 to get the prepaid card.

7.     Only after the shot took place, both of them saw the deceased sprawled on the floor with his head bleeding profusely.

8.     PW8 then said that he rushed out of the shop and saw the Appellant speed away from the scene with a motorcycle parked at the corridor of the shop.

Issue

1.     Whether the failure by the learned trial judge to appreciate the identification parade that was held was a nullity?

2.     Whether the trial judge had failed to appreciate the evidence of PW4?

Ratios

1.     The failure by the learned trial judge to appreciate the identification parade was a nullity.

(a)  The case of Kanan and Ors v State of Kerala AIR 1979 SC 1127 held that where a witness identified an accused person who is not known to him in court for the first time, his evidence is of little value unless there has been previous identification parade identification.

(b)  Furthermore, the Federal Court held in Arumugam s/o Muthusamy v Public Prosecutor [1998] 3 MLJ 73 that the identification of an accused person in the dock for the first time during a trial is undesirable.

(c) The prosecution acknowledged during the trial in this case that the PW9’s identification parade was invalid because five of the 11 participants were teenagers, rather than the Appellant, who was 40 at the time.

(d)  However, the court found that the learned trial judge did not have to reject the Appellant’s dock identification simply because he rejected the identification at the identification parade as in the case of Ong Poh Cheng v Public Prosecutor [1998] 4 MLJ 8; [1998] 4 CLJ 1.

(e)  The court then referred to the case of Public Prosecutor v Mohamed bin Majid [1977] 1 MLJ 121 and decided that the Appellant’s identification was a crucial point to be proven by the prosecution, making the subsequent dock identification by PW4 and PW8 of little value or significance.

2.     The appreciation of evidence from PW4.

(a) Regarding the issue, there were a few problems with regards to evidence given by PW4.

(b) First, during the trial, his evidence is supposed to be the only direct evidence that can prove the identity of the person who fired the gunshot.

(c)  In the instant case, PW4 testified that he did not see the Appellant holding any weapon or pulling any trigger of any weapon. This can be seen here: –

“Setelah Ah Chow menyerahkan prepaid card kepada saya, tiba-tiba saya terdengar satu bunyi tembakan dilepaskan dan saya lihat majikan saya Kau Kia telah jatuh ke atas lantai dan orang yang menembaknya telah menghilangkan diri. Saya tidak tahu ke mana orang yang menembak tersebut pergi. Bunyi tembakan tersebut adalah kuat yang saya lihat dilepaskan oleh orang menembak tersebut. Ketika itu saya sedang memandang kearah orang yang menembak tersebut dan saya dapat rasakan seperti satu percikan api atau ‘sparks’ seperti percikan mercun ke atas muka saya. Percikan api tersebut datang dari arah orang yang menembak yang berada di dalam kedai tersebut. Tiada apa-apa yang berlaku kepada muka saya, selain rasa seperti satu percikan ke arah muka saya.”

(d) The fact that PW4 kept on insisting that the Appellant was the one who pulled the trigger did not necessarily mean he is a witness of truth.

(e)   Another problem is PW4 was arrested by the police after the death of the deceased and he was only released after he identified the Appellant at the identification parade and helped the police to sketch a photo that fits the Appellant.

(f)   As a result, PW4 is an interested witness because he is interested in the outcome of the trial against the Appellant.

(g) The court referred to the case of Balasingham v Public Prosecutor [1959] 1 MLJ 193 and made it clear that this does not mean the court should not believe in an interested witness.

(h)  However, the trial judge did have the responsibility to examine the testimony given by him with extreme care and caution.

(i)    In this case, there was nowhere in the judgement that shows the trial judge acknowledging that PW4 was an interested witness.

(j)    Therefore, the non-direction on the part of the trial judge amounted to a misdirection just like in the case of R v Bundy [1910] 5 Cr App R 270 where the court found that:-

“The trial was not satisfactory, and the case was not put to the jury in a way to ensure their due appreciation of the value of the evidence. We must treat the failure of a trial Judge sitting alone, to direct himself correctly in the same way as a failure to direct a jury correctly. In these circumstances, a miscarriage of justice may well have occurred.”

Decision

1.    The Court of Appeal has quashed the conviction and sentence and allowed the appeal.

Key Take Away

1.      One of the procedures in conducting a proper Identification Parade according to Mallal’s Criminal Procedure, 4th Edition, is that all the people on the parade should be the same nationality, from the same social class, and around the same age as the suspect.

2.      To conclude, this procedure is crucial to ensure that no flaws occur during the identification parade, which will affect the quality of witness dock identification during trial.

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