Beruflich Dokumente
Kultur Dokumente
MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK AT MIRI
[CRIMINAL APPEAL NO. MYY-42S-3/5-2017 & MYY-42S-4/5-2017]
BETWEEN
AND
[In the matter of the Miri Sessions Court Criminal Trial No. MYY-62-
19/6-2016]
BETWEEN
AND
IN OPEN COURT
GROUNDS OF DECISION
Introduction
[1] In the Sessions Court, both the 1 st and 2 nd appellants were found
guilty for the offence of gang-robbery punishable under section 395 of
the Penal Code read together with section 397 of the same code and
sentenced to 15 years of imprisonment each. One Hwong Nai Chong
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[5] About a few minutes later after this male person left from the said
premises, another two (2) unknown male persons wearing masks and
each of them was armed with a knife came up through the same staircase
to the said premises and approached PW1 who was seating on the sofa
near the door inside of the said premises.
[6] One of the unknown male persons then placed his knife at the left
side of PW1’s stomach while the other unknown male person pointed
his knife towards PW1. Both these two unknown male persons then took
PW1’s belongings, namely an iPad (P14) and a Samsung Galaxy A8
handphone (P16). PW1 cash money and jewelleries were also not spared
and taken away by the two male persons. After both the unknown male
persons went off, PW1 then lodged a police report (Exh. P1) at the
Central Police Station.
[7] The 1 st appellant has listed out his grounds of appeal as follows:
Defective charge
[9] Although the word “bahawa kamu” without the word “semua” as
stated in the charge, it does not connote that there was only one person
charged for this offence because the names of the 1 st and 2 nd appellants
were clearly stated as the accused persons in the charge together with
one Hwong Nai Chong (the 1 st accused). I therefore do not agree that
the charge is defective without the word “semua” after the word
“bahawa kamu”. Besides the three of the accused persons being named
in the charge, there were two others namely, Wong Chung Wu who later
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became the prosecution’s witness (PW2) and one “Ah Kui” who was
still at large. As such I cannot see any confusion arises as to the identity
of the accused persons who committed the offence as charged.
[13] Likewise, in the present case, the evidence was adduced by PW1
and PW2 that one “Ah Kui” who was still at large went up to the said
premises first, followed by the 1 st and 2 nd appellants. PW2 also gave
evidence that one Hwong Nai Chong (1 st Accused) was the driver of the
car which was waiting for both the 1 st and 2 nd appellants downstairs. It
is clear that the 1 st and 2 nd appellants were committing gang-robbery
and they were acting in concert with one “Ah Kui” and one Hwong Nai
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[14] I am also of the view that the evidence recorded in the notes of
proceedings did not suggest that both the 1 st and 2 nd appellants were
prejudiced or misled. PW1 clearly testified that both the 1 st and 2 nd
appellants went up to rob her belongings on the date and time stated in
the charge. Another prosecution witness i.e. Wong Chung Wu (PW2)
also gave evidence for the prosecution that the two appellants were
going up to the said premises while he remained in the car. Although
PW2 can be considered as an accomplice who was present before and
after the commission of the offence, his evidence is corroborated by the
evidence of PW1 in material particulars. The evidence of both PW1 and
PW2 were consistent with Exh. P1 i.e. the police report lodged by PW1
at the Central Police Station .
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[17] There is no dispute in the Sessions Court that the offence was
committed during night time and not during day time. This is clearly
stated in the charge that the offence was committed at “12.30 malam”.
When PW1 gave evidence, it was related to the time when she was about
to close the business on that day which is obviously at night time.
Likewise, when PW2 gave evidence it was in relation to the facts that
were happened during night time and not the day time. Their evidence
cannot be confused with the manner in which they were asked by the
learned DPP in the Sessions Court by using 10 the word “p.m.” instead
of the word “a.m.”. It was admitted by the learned DPP that he used the
word “p.m.” due to slip of tongue and what he really intended to mean
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Confession
[18] The 1 st appellant also raised the issue regarding the alleged
confession made by Hwong Nai Chong (1 st Accused) and the 1 st
appellant to ASP Nagulan A/L Maniam (PW3) and L/Kpl Tew Chia
Chuen (PW4) which should be expunged. From the reading of the notes
of proceedings, the ipad and the handphone were found at about 1.45
a.m. the same day inside a car QML 3531 driven by Hwong Nai Chong
(1 st Accused) and the 1 st appellant on the passenger seat. When PW3
testified that both Hwong Nai Chong (1 st accused) and the 1 st appellant
admitted to him that both items seized from the car were the proceeds
of a robbery, in my view, it does not amount to a confession in the sense
that the offence of robbery was actually committed by them. The
learned SCJ did not at any point of time consider the issue of confession
which in my view is the correct position as the information given by
the Hwong Nai Chong (1 st accused) and the 1 st appellant cannot be
construed to mean a confession made by them and there is no basis for
such evidence to be expunged. The statement by both Hwong Nai
Chong(1 st accused) and the 1 st appellant were given to justify on the
finding of the exhibits by PW3 and not an admission by both that the
exhibits were the items they robbed from the premises concerned
(Krishna Rao Gurumurthi & Another v. Public Prosecutor [2007] 4 CLJ
643).
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Section 27 information
[19] The 1 st appellant also argued that his information leading to the
discovery of the parang, jacket and masks were not admissible. The
evidence by PW3 and PW4 revealed that based on the information
received from the 1 st appellant, they went to Lot 380 MDL Garden led
by the 1 st appellant where they found and seized the exhibits used in
the robbery. In my view this information is admissible pursuant to
section 27 of the Evidence Act.
[21] The 1 st appellant also argued that the identity of the 1 st and 2 nd
appellants as the alleged robbers was not established as they were of
the same height contrary to the evidence of PW1 who testified that one
of the persons who robbed her was tall and the other one was short. I
do not think that PW1’s evidence on the different height of the robbers
in the circumstances of this case can be used as an indicator to disprove
the identity of the 1 st and 2 nd appellants.
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[23] The alleged wrongful identity by PW1 was not argued in the
Sessions Court by the 1 st and 2 nd appellants. The identity of the 1 st and
2 nd appellants was well established based on the evidence of PW2 who
was together with both the appellants in the same car before and after
the commission of the robbery. Both the appellants went upstairs after
Ah Kui returned back from the said premises. PW2 was not cross-
examined on this issue of identity of 1 st and 2 nd appellants.
[24] On the issue of alibi, the learned SCJ at pages 16 and 17 of the
Supplementary Record of Appeal (Grounds of Decision) states as
follows:
[25] From the notes of proceedings, the learned SCJ had already
informed the 1 st and 2 nd appellants at the earliest available opportunity
before the commencement of the trial that if the defence wishes to rely
on the defence of alibi, they must inform the DPP in writing, failing
which the Court will not entertain such defence of alibi.
[26] It clearly shows that the 1 st and 2 nd appellants were not only
informed of their right but guided by the Court to file in the notice of
alibi. Such notice was not filed throughout the trial and the indication
to raise the defence of alibi with particular details was not made known
by the 1 st and 2 nd appellants during the prosecution case but it was
introduced by the 1 st appellant by way of ambush during the defence
case.
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[27] It was therefore incorrect for the 1 st appellant to submit that the
learned SCJ had failed to explain on the conduct of the proceedings to
both the 1 st and 2 nd appellants in particular on the issue of the filing of
the notice of alibi. Despite being informed to file one, the 1 st and 2 nd
appellants were adamant by not taking any action to file such notice.
Furthermore, the notes of proceedings also show that the 1 st appellant
was able to conduct his cross-examination by putting sensible questions
to the prosecution witness and did not seem to face any unusual
difficulty.
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4. The Court must pass a sentence that not only it deters the
accused persons from committing the same offence in future,
but also deter any would-be offenders from trying to commit
the same offence.
[31] Clearly, the learned SCJ had outweighed the plea of mitigation in
favour of the public interest in view of the seriousness of the offence
the accused persons were charged with. In my view the learned SCJ was
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not in error when he took the course he did as the imprisonment terms
imposed is within his discretionary limits and upon considering all the
relevant factors before him.
Conclusion
Counsel:
For the 1st appellant - Voon Chen Thong & Ranbir Singh; M/s Ranbir
Singh & Co
Advocates
For the 2nd appellant - Khoo Kok Ping (in person and unrepresented)
For the Defendant - Wan Mohd I’zzat Wan Abdullah DPP; Attorney
General Chambers
Malaysia
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