Hazly bin Ali v Public Prosecutor and another appeal [2015] 1 MLJ 527

Court of Appeal (Putrajaya)

Robbery

1.     There were two incidents of robberies that took place at two different goldsmith shops by the same group of people who employed the same modus operandi.

2.      The two incidents took place about 15 minutes apart on the same day of 13 April 2009 in Paka, Terengganu.

3.     The first robbery was at Kedai Tukang Emas Berkat Fatimatun Zhariah of No 6, Kedai Aked Mara, Jalan Pasar, Paka, Terengganu and the second at Yong Seng Tukang Emas of No 196, Jalan Majlis, Paka, Terengganu.

4.     The first incident took place at 4pm on 13 April 2009 when Ibrahim bin Che Kok (‘SP2’) was at his shop known as Tukang Emas Berkat Fatimatun Zhariah.

5.     According to him, a Malay man (later identified as the Appellant) came into his shop purportedly to clean one piece of silver bracelet.

6.     Soon after, the Appellant went out of SP2’s shop and returned to the shop, sat on the high chair in SP2’s shop, holding and pointing a pistol towards SP2.

7.     At that same time, another two friends of the Appellant came into the shop while carrying a baseball bat.  They broke the showcase displaying the jewelleries with the baseball bat and took all the jewelleries into a bundle.

8.     The whole incident took place within five minutes and throughout that time the Appellant remained seated on the high chair pointing a pistol towards SP2.

9.     SP2 suffered a loss of about RM300,000.00 from the robbery. This incident constituted the second charge against the Appellant.

10.  The second incident took place at the shop known as Yong Seng Tukang Emas belonging to Lee Jin Rong (‘SP6’).  According to SP6, at about 4.15pm on 13 April 2009 while he was inside his shop, he saw a car suddenly stopped in front of his shop.

11.  A Malay man (later identified as the Appellant) came out of the car holding a pistol in his hand and went straight into his shop. SP6 stood up to move to the back of his shop but was ordered to stop by the Appellant.

12.  At that same time, the Appellant was pointing a pistol towards SP6.  Another two men came out of the car went into the shop, broke the jewellery showcase with a baseball bat and collected all the jewelleries on display and bundled all the jewelleries.

13.  After that, all the three men ran off towards the car and a shot was fired by the Appellant towards SP6.

14.  The robbery incident at the second shop was confirmed by an eyewitness, ‘SP8’ (the mother of SP6) who was at the scene during the incident.

15.  ‘SP7′, a neighbour who lived on the opposite side of the road, was another eyewitness to the incident.  This second incident constituted the first charge against the Appellant.

16.  The next day after the incident, that is on 14 April 2009 at about 10am the police discovered a car, Proton Waja bearing registration No BHY 8746 at the area of Air Terjun Menderu at Kerteh, Kemaman in Terengganu.

17.  On the same day (14 April 2009), at 3.30pm the Appellant was arrested in front of another gold smith shop, Kedai Emas Kenari at Jalan Che Teng in Kemaman Terengganu.  A sling bag and a national registration card of the Appellant was found and confiscated.

18.  During investigation, the Appellant informed the police that the pistol he used in both the robbery incidents was kept in a shed behind his house at Taman Wan Adnan at Kerteh, in Terengganu.

19.  Relying on that information given by the Appellant, the police found a pistol together with a magazine and seven bullets in a pail at a garage behind the shed of the house of the Appellant’s father.  Also found in the same location, was an empty bullet casing and a broken baseball bat.

20.  Through their investigation, as well as relying on the information given by the Appellant, the police found the jewelleries robbed in both incidents in another gold smith shop known as Kedai Emas Kenari at Kemaman, Terengganu.

21.  Incidentally, the Appellant was arrested in front of this shop by the police on 16 April 2009.

22.  On 2 August 2009 ‘SP1’ conducted ballistic test on the pistol using the magazine and bullet received from the investigating officer.  The pistol was found to be in serviceable condition.

23.  At the end of the prosecution case, the learned trial judge made a finding that the prosecution had made out a prima facie case on both the charges against the Appellant.

24.  The Appellant was then called to enter his defence and he elected to give evidence on oath.

1.     Whether the judge ought to have invoked Evidence Act 1950 (Act 56) against the prosecution for failure to produce the Appellant’s accomplices and SP2’s wife as witnesses

2.     Whether the pistol used in the crime was not identified by the witness

3.     Whether the prosecution failed to prove common intention as there was no evidence to support a pre-arranged plan was made.

1.    Application of Section 114(g) of Act 56

(a)   Learned counsel for the Appellant argued that the robbery at both the goldsmith shops were committed by four persons namely Mohd Kamaruzahni bin Ngah, Mohd Shahdan, Mat Yie and the Appellant.

(b)   Mat Yie could not be traced. However, the other accomplices Mohd Kamaruzahni bin Ngah (charged at the sessions court) and Mohd Shahdan, were not called to testify or offered to the Appellant as witnesses.

(c)   Another material witness was also the wife of the shop owner SP2 who was at the scene.  Therefore, it was submitted by learned counsel that the failure by the prosecution to produce these witnesses, would create an adverse presumption and invite the invocation of Section 114(g) of the Act 56 against the prosecution.

(d)   Learned counsel relied upon the Federal Court case of Ti Chuee Hiang v Public Prosecutor [1995] 2 MLJ 433; [1995] 3 CLJ 1, the Supreme Court case of Munusamy v Public Prosecutor [1987] 1 MLJ 492; [1987] CLJ (rep) 221 and Abdullah Zawawi v Public Prosecutor [1985] 2 MLJ 16; [1985] CLJ (Rep) 19.

(e)   It must be noted that a prima facie case was made out by the prosecution on the evidence before the court as found by the learned trial judge.

(f)     The learned judge relied on the testimonies of SP2 which he had carefully scrutinised.  The evidence of SP2 does not require any corroboration in law.

(g)   A prima facie case was made out without any of the testimony of the witnesses suggested by learned counsel.  That being the case, there was no necessity for the prosecution to bring forward any other witness to establish its case.

(h)   In any given case the right to call a witness to prove a case lies with the prosecution as decided in Jazuli bin Mohsin v Public Prosecutor [1990] 2 MLJ 190.

(i)      In Chua Keem Long v Public Prosecutor [1996] 1 SLR 510, it was decided that the failure of the prosecution to adduce evidence of the other co-gamblers cannot draw a presumption against the prosecution unless the witnesses are essential to the case of the prosecution.

(j)      It is settled law that provided there is no wrong motive the prosecution has the discretion as to what witnesses should be called.

(k)    In the present case the prosecution had discharged its burden and had established a prima facie case.  There would be no adverse inference that can be drawn though other witnesses who were not before the Court.

(l)      Thus, the Court agreed with the learned DPP contention that there is no issue of withholding or suppression of evidence on the facts of the present case.

(m)  This is because, a suppression of evidence envisaged by Section 114(g) of Act 56 can only be invoked if there is suppression of material witness and not just any witness.

2.     Identity of the Appellant

(a)   Learned counsel for the Appellant contended that the learned trial judge was in error in relying on the evidence of SP2 to identify the Appellant.

(b)   Learned counsel argued that there were material discrepancies in the testimonies of SP2 both on the identity of the Appellant as well as the non-identification of the pistol used by the Appellant, in the commission of the robberies.

(c)   For these reasons, the testimonies of SP2 were submitted to be weak and inconsistent.

(d)   In his written judgment, the learned trial judge found that the testimonies of SP2 was clear in establishing the identity of the Appellant.  He supported this finding with well analysed reasons.

(e)   The learned trial judge found SP2 was clear in recounting how the Appellant first went into his shop on the pretext of cleaning a silver bracelet and returned again soon and was pointing a gun to him throughout the incident.

(f)     SP2 clearly testified that he was looking at the Appellant’s face for at least five minutes from a distance of about four to five meters away.

(g)   Taking the evidence of SP2 as a whole, the learned trial judge found the evidence of SP2 unshaken despite being severely cross-examined.

(h)   The finding of facts and the credibility of a witness made by the learned trial judge should not be unnecessarily interfered with, unless there is clear appealable error that merits intervention.

(i)      Therefore, SP2’s evidence had convinced the learned trial judge on the identity of the Appellant which the learned trial judge is entitled to do.

(j)      Despite the lack of identification parade, it did not affect the prosecution’s case as decided in Arumugan s/o Muthusamy v Public Prosecutor [1998] 3 MLJ 73 which accepted ‘dock identification’ without an identification parade conducted.

(k)    The pistol used in the commission of the crime was tendered as exhibit 14A.  There was no dispute that a gun was used in the robbery.  Thus, although exhibit 14A was not identified by SP2, it was never raised as an issue during the trial.

(l)      The Appellant did not challenge the testimonies of SP2 that a gun was pointed at him during the robbery.

(m)  The Court then refer to the case of Gunalan a/l Ramachandran & Ors v Public Prosecutor [2004] 4 MLJ 489; [2004] 4 CLJ 551 where it was held that there is no law that says any failure to produce all the exhibits found is fatal to the case of the prosecution.  Even the need to tender any exhibit would depend on the facts of each particular case.

(n)   In the present case, the evidence is clear that the Appellant was pointing a gun to SP2 and thus whether or not SP2 identified the gun used is quite immaterial.

(o)   Moreover, the incriminating weapon was discovered in a pail behind the house of the Appellant’s father, as a result of the information given by the Appellant himself.

(p)   After the arrest, the Appellant was taken by the police team to show the incriminating weapon.  That was clearly stated in the testimony of the Appellant himself.

(q)   In view of such clear evidence, the Court was of the view that there would be no necessity to identify the pistol by SP2.

3.     Common intention

(a)  The learned counsel contended that the prosecution failed to prove common intention under Section 34 as there was no evidence to support a pre-arranged plan was made.

(b)  The law on common intention is trite.  The learned judge found that in both the incidents the same modus operandi was employed by the Appellant.

(c)  The robberies were committed using the same car where the Appellant was armed with a pistol while the other two came into the shop, broke the show case and removed the jewelleries with the Appellant holding guards on the victim.

(d)  Therefore, the Court agree with the learned judge that the modus operandi employed disclosed that each of them knew their respective roles and this could not have happened without any planning.

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

1.     Section 114(g) of Act 56 illustrates that the court may presume the existence of any fact based on evidence in relation to a fact that could be and is not produced, but would be unfavourable to the person who withholds it if produced.

2.     This means that if a party suppresses or withholds evidence in their possession, the court may presume that the evidence, if produced, would be unfavourable to the party’s case, thereby invoking an adverse inference against the party.

3.     However, it must be noted that the word “may presume” suggests that it is the discretion of the courts to make such a presumption of fact.