Ong Teik Thai v Public Prosecutor [2017] 4 MLJ 421

Case: Ong Teik Thai v Public Prosecutor [2017] 4 MLJ 421

Court: Federal Court (Putrajaya)

Topic: Common Intention

Facts 1.     Choi Yu Ki (“the Deceased”) was murdered in front of a building in Penang on April 6, 2006.  The autopsy confirmed that the cause of death was multiple slash wounds.

2.     The prosecution built their case on the testimonies of three witnesses which were SP5, SP6, and SP8.

3.     According to SP5, who was at a coffee shop in Teluk Kumbar, he saw that the Deceased and two others, SP6 and SP8, were walking towards their parked motorcycles by the roadside.

4.     Out of the blue, a Proton Waja car collided with their motorcycles, causing them to fall.  When the Deceased approached the car’s driver, four men with yellow hair got out of the vehicle, each carrying a machete or parang.

5.     These men chased the Deceased and SP8, who ran across the road.  The four men then repeatedly slashed the fallen Deceased.

6.     SP6 testified that he saw five individuals, including the Appellant, attacking the Deceased with samurai swords.  He stated that two of the assailants initiated the attack, followed by three others.

7.     SP8, who was with the Deceased, saw the driver and four others, including the Appellant, emerged from the car with parang.

8.     The Deceased instructed SP8 to flee, which he did.  After approximately five minutes later, SP8 returned to the scene and found the Deceased lying in a shop across the road, suffering from multiple slash wounds.

9.     Following that horrifying incident, the Appellant was arrested and charged with murder.  The charge against the Appellant was that he together with four other persons at large had committed murder in furtherance of their common intention, an offence punishable under Section 302 of the Penal Code read with Section 34 of the same Code.

10.  The Appellant was convicted of the offence and sentenced to death.  His appeal to the Court of Appeal was also dismissed thereafter.

11.  The counsel for the Appellant argued in the Federal Court that the trial judge failed to consider the doubts regarding the credibility of the main witness concerning the identification of the Appellant.

12.  The learned counsel also argued that the main witness (SP6) contradicted another witness (SP8) regarding the recognition and identification of the Appellant.  While SP6 mentioned that the Appellant had hair and that the attackers had red and yellow hair, SP8 stated that the Appellant was bald.

13.  The learned counsel highlighted this contradiction and emphasized that the prosecution should have clarified this important aspect of recognizing and identifying Appellant.

14.  The prosecution submitted that they acknowledged discrepancies in the testimonies of SP6 and SP8 regarding the Appellant’s appearance at the scene, attributing them to the fast-paced nature of the incident, which made it challenging for the witnesses to provide consistent accounts in court based on what they saw.

Issue 1.     Whether the trial judge glossed over material evidence with regard to identification and common intention?
Ratios 1.     Since the Appellant was convicted by the trial judge for committing murder with four other persons at large, thus the proof of common intention under Section 34 of Penal Code is crucial to be carefully examined by the Federal Court.

“34. 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.”

2.     To prove the common intention, the Federal Court had referred to the case of Namasiyiam, Rajindran, Goh Chin Peng, and Ng Ah Kiat v Public Prosecutor [1987] 2 MLJ 336 in which the prerequisites for common intention was delivered in sagacity by the late Syed Agil Barakbah SCJ as follows:

“In law, common intention requires a prior meeting of the minds and presupposes some prior concert. Proof of holding the same intention or of sharing some other intention, is not enough. There must be proved either by direct or by circumstantial evidence that there was-

(a)  a common intention to commit the very offence of which the accused persons are sought to be convicted;

(b)  participation in the commission of the intended offence in furtherance of that common intention.

Where the prosecution case rest on circumstantial evidence, the circumstances which are proved must be such as necessarily lead only to that inference. Direct evidence of a prior plan to commit an offence is not necessary in every case because common intention may develop on the spot and without any long interval of time between it and the doing of the act commonly intended. In such a case, common intention may be inferred from the facts and circumstances of the case and the conduct of the accused.”  [Emphasis Added]

3.     In regards to the key element of Section 34 of Penal Code above, the decision of foreign case in Om Prakash v State (AIR 1956 All 241) has been alluded with much clarity that the participation of the individual offender in the criminal act in some form or the other is the leading feature of the said Section 34 of the Penal Code.

4.     Following to the aforementioned case, the Federal Court concurred that if a person merely being present at the scene, it does not automatically make someone guilty under the same provision of law.  However, if a person is present with the intention of participating in the offence, they will be considered as a participant and held guilty.  However, if they are present as a mere spectator without any active involvement, they will not be held guilty.

5.     The distinguished case of Adiswaran a/l Tharumaputrintar v Public Prosecutor and other appeals [2014] 3 MLJ 228 also had been referred by the Federal Court where the prosecution in the case had established a common intention to commit murder because it had been proven that the first accused was holding a knife, the third accused holding a parang in the presence of the second and the fourth accused near the deceased, who was lying down on the floor with head injuries.

6.     However, in regard to the abovementioned case, the Federal Court did not accept such submission and went on to recapitulate the principle on common intention in the decided case of Wan Yurilhami bin Wan Yaacob & Anor v Public Prosecutor [2010] 1 MLJ 749 which read as follows:

“The prosecution’s case rested on circumstantial evidence.   In our view there was insufficient circumstantial evidence, at the end of the prosecution’s case, that the second to the fourth accused caused the death of the deceased in furtherance of a common intention.  There was no evidence to prove that the second, third and fourth accused were present at the scene as confederates of the first accused.”  [Emphasis Added]

7.     As far as the present case is concerned, the Federal Court held that to prove the Appellant’s involvement in a murder case, it was crucial to establish his common intention with the other four individuals.

8.     By the end of the prosecution’s case, there must be enough evidence showing that the Appellant was acting in concert with the others in committing the murder. If there was any reasonable doubt regarding his involvement or if his identification as one of the participants was uncertain, the prosecution would fail to present a strong case, leading to the Appellant’s acquittal.

9.     In this instance, the Federal Court found that there were conflicting testimonies from witnesses SP5 and SP6 who raised reasonable doubts about the number of assailants and whether SP6 had actually witnessed the Appellant attacking the victim.

10.  Therefore, the credibility and reliability of SP6’s testimony were questionable.

Decision 1.     There was no finding made by the trial judge on the specific act done by the Appellant in furtherance of the common intention.

2.     The Federal Court allowed the appeal and set aside the Appellant’s conviction and his sentence.

3.     The Appellant was acquitted and discharged.

Key Take Away 1.     Under the Malaysian law, common intention in murder requires the prosecution to prove that the accused, along with others, had a shared intention to commit the crime.

2.     It is important for the prosecution to establish that the accused was acting in collaboration and/or concert with the other individuals in the murder.

3.     If there is any reasonable doubt regarding the accused’s participation or identification, the prosecution fails to prove a prima facie case, leading to acquittal.

4.     Additionally, the prosecution relies on circumstantial evidence to build its case.  Circumstantial evidence is indirect evidence that implies a fact or event but does not directly prove it.

5.     In murder cases, the prosecution must present sufficient circumstantial evidence that points to the accused’s guilt beyond a reasonable doubt.  This evidence should create a clear and logical inference of the accused’s involvement in the crime, leaving no reasonable for alternative explanation.


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