SUHAIMI BIN ALIAS v PENDAKWA RAYA [2023] AMEK 1333

Court Of Appeal

Crimininal Law – Kidnapping – Ransom

Facts

1.      The Appellant, together with two other persons named Raja Mohd Hafiz bin Raja Shuib and Nobi Hussein bin Abutar were charged with the offence of kidnapping for ransom under Section 3 of the Kidnapping Act 1961 (“Act 365”).

2.      However, the charge against Raja Mohd Hafiz bin Raja Shuib was withdrawn on 14.3.2017 as he had passed away.

3.      The kidnap victims were three (3) Bangladeshis named Gholam, Sojib and Rafiq.

4.      Before the incident, the victims were in the minimarket where they were employed together with Gholam’s son named Mahadi.  Suddenly, three men including the Appellant entered into the minimarket and ordered the victims to produce their passports.

5.      They were told by the men that they would be brought to the police station. Blindfolded and led up a staircase, Gholam found himself in a room with Sojib and Rafiq instead of in the police station.  He also overheard the conversation between one of his captors and his son, using his handphone demanding RM50,000.00 as ransom money from his son.

6.      During the raid where police forcibly opened the door, the victims were still blindfolded and the Appellant together with the other two (2) accused were also in the room.

7.      The learned High Court judge convicted the Appellant and Nobi Hussein and sentenced them with life imprisonment as well as ten lashes of the whip instead of death sentence after considering their age and antecedents.

8.      The Appellant appealed against both conviction and the sentence.

1.      Whether there was evidence to prove the Appellant’s involvement in the kidnapping and confinement of the victims with the intent to demand ransom.

2.      Whether it is sufficient if any one of the captors had made the demand since the principle of common intention was invoked in the charge.

Ratios

1.      Whether there was evidence to prove the Appellant’s involvement in the kidnapping and confinement of the victims with the intent to demand ransom

(a)  Gholam was the sole victim who testified for the prosecution because the other two victims ie Sojib and Rafiq had gone back to their home country.

(b)  During the identification parade, the Appellant and Nobi Hussein were successfully identified by Gholam as the people who kidnapped him from the line-up.  Gholam also identified both of them during the trial in the Court.

(c)  However, it was argued that the identification made by another witness ie SP1 who witnessed the kidnapping incident was unreliable because she failed to identify the Appellant during the identification parade, but only able to identify the Appellant during the trial.

(d)  The Court held that dock identification by an eyewitness is strengthened by a prior identification made during an identification parade that takes place shortly after the incident in issue.  However, by referring to the principle in the case of Ong Poh Cheng v PP [1998] 4 CLJ 1, the lack of a successful identification in an earlier identification parade does not entirely negate the probative value of dock identification.  It was held that-

“Generally speaking, an identification at an identification parade, held usually a short time after the incident, would tend to strengthen the prosecution’s case but it does not follow that the lack of it would be fatal, or would destroy a court or dock identification. It must necessarily depend on the facts and circumstances of each particular case. Unlike in the case of Arumugam s/o Muthusamy v PP [1998] 3 MLJ 73 where the court relied solely on the dock identification, the present case there are other cogent evidence to put the appellant at the scene of the robbery. The court’s identification was merely to confirm this. On the facts and circumstances of this case, the court or dock identification of the appellant was rightly accepted.”

(e)  In the present case, the Court of Appeal held that the learned High Court Judge was not wrong to give weight to the dock identification after considering the evidence given by Gholam and the raiding officer who stated that the Appellant was indeed in the hotel room where the victims were confined during the raid.

2.      Whether it is sufficient if any one of the captors had made the demand since the principle of common intention was invoked in the charge.

(a)  Section 2 of the Act 365 provides a clear definition for “ransom” as follows:

“any money, price or consideration paid or demanded for the release of a person abducted or wrongfully confined or wrongfully restrained.”

(b)  Although the prosecution had failed to lead direct evidence to prove that the Appellant had made the ransom demand, by applying the principle of joint criminal liability under Section 34 of the Penal Code, the fact that the Appellant and the other two accused impersonating police officers, confined the victims in a hotel room and demand ransom money from Gholam’s son clearly shows their common intention to commit criminal act as such.

(c)  Section 34 of the Penal Code provides that –

“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.”

(d)  The Privy Council in the case of Mahbub Shah v King Emperor [2945] LR 72 IA 148 also applied the same principle as follows:

“Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say ‘the common intention of all’, nor does it say ‘an intention common to all’. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of s. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.”

(e)  Therefore, the prosecution does not have to show that the accused individually committed the offence in question. It is sufficient for the prosecution to prove that all the accused had committed a criminal act in furtherance of the common intention of all.

The Appellant’s appeal against the conviction and sentence was dismissed.

1.      The law governing criminal liability under Section 34 of the Penal Code clearly expressed the doctrine of common intention in which if two or more persons intentionally commit an offence jointly, it is just the same as if each of them had done it individually.

2.      Common intention is the state of mind common to all the persons accused of the offence and such intention may be planned beforehand or arise during the commission of the offence.

3.      As a matter of course, each person involved in the series of acts must be deemed to have meant the likely outcomes.

4.      Therefore, the prosecution only had to prove that all those involved had a common purpose to commit a crime and that the act in question was the offense for which charges were brought.