Karnam Singh a/l Gubakhus Singh & Ors v Public Prosecutor [2019] 2 MLJ 480

Karnam Singh a/l Gubakhus Singh & Ors v Public Prosecutor [2019] 2 MLJ 480

Court of Appeal (Putrajaya)

The Importance of Visual Identification in the Offence of Kidnap

Facts

1.    The Appellants together with two others were charged with two offences, firstly for abducting for ransom under Section 3 of the Kidnapping Act 1961 (Act 365) read together with Section 34 of the Penal Code (Act 574) and secondly, for abducting with intent to wrongfully confine a person under Section 365 of Act 574 read together with Section 34 of Act 574.

2.    On 11 June 2012 at about 9.30 am, Lim Kian Hwa (‘SP2’), who worked as a transport manager received a phone call from someone asking him to come over to discuss the sale of sand that SP2 was keen to purchase.

3.    Suspecting nothing sinister, SP2 agreed to meet the caller at the pre-arranged location, which was at CCM Mineral Sdn Bhd factory, Rawang.

4.    Since the caller was unknown to SP2, he brought along his worker Mohd Laithaff bin Thaj Mohamed (‘SP3’) to accompany him. SP3 was the victim in respect of the second charge.

5.    On their arrival at the factory at about 12.30 pm, a male Indian arrived in a Wira Aeroback and approached SP2’s car.  This person, later identified as the First Appellant, asked SP2 to follow his car to the place where the sand deposits were supposed to be located.

6.    SP2 followed the Wira Aeroback from behind and was led through an isolated sandy feeder road.

7.    As they drove further in, SP2 noticed that another Wira Aeroback was already waiting for them.   SP2 began to feel uneasy and he became scared.

8.    He reversed his Hilux with the intention of turning back but was unable to do so as there was a car blocking him at the rear and another one in the front.

9.    Subsequently, two persons rushed out from the car in front and another three from the car behind and they were armed with a knife, a steering lock, a long cane and a big hammer.

10.  They smashed the side windows of the Hilux using the big hammer and steering lock and forcefully pulled SP2 and SP3 out of the vehicle.

11.  Once outside the Hilux, SP2 and SP3 were pinned down and assaulted with the steering lock, hammer and rotan. Their hands and legs were tied with cable and they were blindfolded.

12.  They were then brought to an empty house in one of the Wira Aerobacks.   Upon entering the empty house, SP2 was ordered to sit down and his shoes removed. Someone hit his bare feet with a cane and only stopped when he screamed in pain.

13.  They then removed his blindfold and handed to him his handset. According to SP2, there were about six persons in the empty house but he was told not to look around or be killed if he dared to.

14.  One of the kidnappers, namely the First Appellant, instructed SP2 to call his elder brother Lim Kian Piang (‘SP11’) to tell him that he and SP3 had been kidnapped and that RM2 Million was the price for his release.

15.  While SP2 was on the phone with SP11, the First Appellant grabbed the handset and spoke to SP11, telling him to come up with the RM2 Million ransom.

16.  SP11 was given until 7pm to do so and was warned not to make any police report.

17.  On the same day at about 3.30pm, SP11 received an SMS from handset with a number of 010-4243915.  It was a message from the First Appellant, who repeated his demand for the ransom sum of RM2 Million.  However, after some negotiations through several phone calls, the sum was reduced to RM1 Million.

18.  At night, SP2 called SP11 again, told him to hurry up with the payment as he had been assaulted by the kidnappers. What transpired prior to this was that he was slapped several times and the cable on his hands was tightened in consequence of his attempt to escape.

19.  At dawn, SP2 and SP3 were transferred to another location. At this location, one of the kidnappers placed a knife at SP2’s neck and told him that his elder brother did not love him as he had not delivered the ransom money.

20.  SP2 pleaded to him that his brother loved him and that payment would be made soon.

21.  SP11 lodged a police report on the same day. By then SP2’s parents had also managed to come up with the RM1 Million ransom.

22.  Photos of the RM1 Million, all in RM50 denominations, were taken and their serial numbers recorded. They were put in two bags, one containing RM870,000.00 and the other containing RM130,000.00.

23.  SP11 then contacted the First Appellant. He was instructed by the First Appellant to drop the money at a marked location by the roadside near an Indian temple at Batang Berjuntai.

24.  SP11 did as instructed but he only dropped the bag containing the RM870,000.   He said he forgot to drop the bag containing the RM130,000 as he panicked.

25.  SP11 then waited in the vicinity of the Indian temple. At 9pm he received a call from SP2 asking him to pick him up. Apparently SP2 had set himself free.

26.  According to SP2, before SP11 fetched him, it was already dark and when he saw no one inside the house where he and SP3 were confined, he took the opportunity to escape.

27.  What SP2 was unaware of was that the kidnappers had obtained the ransom money and had left the house.

28.  Subsequently, five persons were arrested by the police in connection with this case, including the three Appellants. The First Appellant was positively identified by SP2 and SP3 as the person who met them before they were kidnapped at Rawang and as one of the persons who guarded them at the empty house.

29.  According to SP2, the First Appellant was armed with a knife while guarding them. The Second and Third Appellants had also been identified by SP2 and SP3.

30.  At the conclusion of the trial, the Appellants were found guilty of both charges.

31.  For the first charge, they were sentenced to life imprisonment and two strokes of rotan each whilst for the second charge, they were each sentenced to five years imprisonment with effect from their dates of arrest.

32.  Dissatisfied with the decision, the Appellants filed the present appeals based on two grounds.

Issue

1.    Whether the trial judge is correct in ruling that SP2’s failed dock identification is not fatal to the prosecution case.

2.    Whether the trial judge is correct in ruling that the Appellant’s common intention was not proved.

Ratios

1.    Failure of Dock Identification.

(a)   The Court found no merit in the Appellant’s argument that SP2 failed to identify the Appellant during the first identification parade.

(b)   However, SP2 explained that this was due to the fact that the First Appellant was unshaven at the first identification parade but clean shaven when he abducted SP2 and SP3.

(c)   As a result, there was no basis for the Court to accept learned counsel’s argument that the trial judge should have rejected SP2’s dock identification of the First Appellant.

(d)   This is because, more importantly, proof of the First Appellant’s involvement in the offence came from sources other than SP2’s testimony.

(e)   Such evidence also came from the police testimony that RM520,000.00 of the ransom money was discovered in the First Appellant’s possession at the time of his arrest.

(f)     This is an independent corroboration of SP2’s evidence on the identity of the First Appellant and his role in the commission of the offence, not a legal corroboration of his evidence.

(g)   Regarding the identification of the Second and Third Appellants, while SP2 was unable to identify them in court during the trial, he positively identified them at the identification parades held eight days after his kidnapping, when the incident was still fresh in his mind.

(h)   SP2 explained his failure to identify the Second and Third Appellants in court by stating that the incident occurred before he gave evidence.

(i)     As a result, the Court concurred that SP2’s failed dock identification is not fatal to the prosecution case because the identities of the second and third appellants were established by independent DNA evidence.

(j)     Moreover, forensic evidence showed that the DNA profiles of the Second and Third Appellants were found on cigarette butts collected by police at or near the empty house where SP2 and SP3 were confined.  The Third Appellant’s DNA was even discovered on SP2’s shirt at the time of his kidnapping.

(k)    In addition to the DNA profiles of the Second and Third Appellants on the cigarette butts, the DNA profile of SP3 was discovered on the cigarette butt containing the Third Appellant’s DNA profile.

(l)     This demonstrates that SP3 was telling the truth when he testified that he shared a cigarette with the Third Appellant while being imprisoned in the empty house.

(m) The presence of the DNA profiles of the Second and Third Appellants on the cigarette butts, as well as the Third Appellant’s DNA profile on SP2’s shirt, provides powerful corroboration of SP2’s and SP3’s evidence that the Second and Third Appellants were perticeps criminis in this crime.

(n)   DNA evidence alone could provide the basis for a conviction if all other elements of the offence were established, as in R v Adams [1996] 2 Cr App Rep 467, where the appellant was charged with rape and the prosecution case was entirely based on expert evidence relating to the DNA profile obtained from semen on a high vaginal swab taken from the victim.

(o)   In this case, the DNA profiles of the Second and Third Appellants discovered at the scene of the crime, as well as the Third Appellant’s DNA profile on SP2’s shirt, could not have been a coincidence.

(p)   To conclude, the counsel’s contention that the identities of the second and third appellants had not been established due to SP2’s and SP3’s failure to identify them in court was of no consequence.

2.    Common Intention was not proved

(a)   According to the Court, the common intention of the group of people who kidnapped SP2 and SP3 was to commit the two charges, despite the fact that the two people charged alongside the Appellants were acquitted and discharged at the conclusion of the prosecution case.

(b)   The Court went on to say that it was clearly their pre-planned plan for SP2 to be lured to the isolated feeder road and then abducted and imprisoned in the empty house in order to demand a ransom from his family.

(c)   This is due to the fact that SP3 was not their intended target, but the fact remains that he was imprisoned in the empty house against his will.

(d)   As a result, the Court concluded that he was in the wrong place at the wrong time with the wrong person. It is common knowledge that common intention can be formed on the spur of the moment, and this is true in the case of SP3.

(e)   Referring to Section 34 of Act 574-

“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.”

(f)     Section 34 of Act 574 contains sufficient adjective law on what constitutes common intention.

(g)   The latest decision of the Federal Court on such point is the case of Farose bin Tamure Mohamad Khan v Public Prosecutor and other appeals [2016] 6 MLJ 277 where it was held by unanimous decision of a panel of five members that in a criminal prosecution where Section 34 of Act 574 is invoked, it is not incumbent on the prosecution to prove that there existed between the participants a common intention to commit the crime actually committed.

(h)   The Supreme Court further held that Section 34 of Act 574 can apply to all persons involved in the commission of the actual crime as long as there is a common intention to commit a criminal act that resulted in the commission of the actual crime.

(i)     As a result, even if the First Appellant demanded the RM1 million ransom from SP11, the Second and Third Appellants would be equally liable under Section 34 of Act 574.

(j)     There is no ring of truth in the Appellants’ claim that their intention was only to rob SP2 and not to kidnap him for ransom.

(k)    This is because, the RM1 Million was demanded and obtained as ransom for SP2’s release and not money that was robbed from him.

(l)     In addition, the fact that SP3 was tied up and confined in the empty house after his abduction clearly shows that their common intention was to commit the offence.

Decision

1.    The Court of Appeal affirmed the convictions and sentences of the High Court.

Key Take Away

1.    Visual identification has a crucial importance to the process of identifying the accused because it leads to the apprehension of a suspect and subsequently criminal prosecution.

2.    Even though there is no specific provision under the Evidence Act 1950 or Criminal Procedure Code in Malaysia with regard to identification parades, such parade is an important process that is used by the police officers for identifying criminals.

3.    However, should there be other evidence relevant to the case besides visual identification, and the identification parade result is negative, it is not fatal to the prosecution’s case.

4.    To conclude, although identification parade is part and parcel of a criminal investigation, the outcome is not always binding on the court’s decision.

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