SAHRI TAHE v PP AND OTHER APPEALS [2016] 4 MLJ 69

 

SAHRI TAHE v PP AND OTHER APPEALS [2016] 4 MLJ 69

Court of Appeal (Putrajaya)

Crime of Common Intention

Facts

1.     The Appellants, namely Sahri Tahe, Purwanto and Didik Setiawan were all charged at the High Court for the offence of abduction punishable under Section 3(1) of the Kidnapping Act 1961 (“Act 365”) which was read together with Section 34 of the Penal Code (“Act 574”).

2.     The victim, who was in the business of mechanical engineering has been kidnapped by the Appellants in which the Appellants had threatened the victim’s wife for a ransom of RM300,000.00.

3.     On 12 April 2010, the Appellants began assaulting the victim once he arrived at Batu Berendam, the place in which the Appellants told the victim to come as they convinced the victim that they want to have business with him.

4.     The victim was hit on his head, legs and on his back. They then bound his hands with cellophane tapes and his legs with ropes. He was dragged and placed inside a toilet for the next 24 hours.

5.     On the same day, at around 10.45 p.m., the victim’s wife received a telephone call while driving around town searching for her husband in which the caller had demanded an amount of RM300,000.00 as a ransom for her husband’s return.

6.     The victim returned home with one of the Appellants that was guarding him back in Batu Berendam as he negotiated to release him with the promise to pay RM20,000.00.

7.     During the trial at the High Court, all three (3) of the Appellants were found guilty and convicted of the offence and were sentenced to life imprisonment and fifteen (15) strokes of the rotan respectively.

8.     The Appellants claimed that they were not acting independently but rather were hired by one Ah Thiam to assault the victim as the victim owed Ah Thiam money.

Issue Whether the reiteration of the Appellants that they had acted under the instruction of Ah Thiam will negate the offence of abduction.
Ratios

1.     In the instant appeal, the Appellant submitted that they had not wrongfully confined the victim with an intent for ransom as the evidence found by the police showed that none of the telephone owned by the Appellants were the same phone that were used to call the victim’s wife seeking for the ransom.

2.     The Court is of the view that if the Appellant were only intended to assault the victim, they should have left him after the assault as was alleged to be instructed by their paymaster, without having to wrongfully confined the victim.

3.     Nonetheless, the Appellants had acted to wrongfully confining the victim at an abandoned building in which later assaulted him and then demanded a ransom from the victim’s wife to secure the victim’s release.

4.     The Court held that from the very beginning, it is apparent from the conduct of the Appellant that they were not merely on a hired mission to assault the victim.

5.     For comprehension, the Court highlighted that the Appellants were charged with common intention under Section 34 of Act 574 to commit the crime.  The Court further held as follows:

“The section is intended to make a person liable for the commission of an offence not committed by him, but by another person with whom he shared the common intention.  It is also to deal with cases in which it is difficult to prove exactly what part was played by each of them in the commission of the offence or in cases where it is difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all.”

6.     Accordingly, the Court is entirely with the learned trial judge in his analysis of the evidence and the determination as follows:

“The Appellants had indeed participated and were acting in concert in furtherance of their common intention, to wit, the wrongful confinement of PW9 with intent for ransom. One of the Appellant who was guarding the victim knew that his partners had demanded RM300,000 ransom sum from the victim’s wife. There can be no doubt that there must be some communication between one of the Appellant and his partners and there can be no doubt that his partners were none other but the two of the other Appellants.”

 

Decision

The Court of Appeal dismissed the appeal.
Key Take Away

1.     The crime of common intention, governed by Section 34 of Act 574, is a criminal act which was done by not one but several persons which was in furtherance of the intention perceived by each and every person doing the crime.

2.    According to V.K Rajah J.A in Lee Chez Kee v Public Prosecutor [2008] SGCA 20, there are four (4) elements to be proven for Section 34 of Act 574 as follows:

(a)  A criminal act;

(b)  Participation in the doing of the act;

(c)  A common intention between the parties; and

(d)  An act done in furtherance of that common intention.

 

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