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Court of Appeal of Malaysia |
] [Hide Context] RAYUAN JENAYAH NO: A-05-355-2009 & A-05-356-2009
(Dalam Mahkamah Tinggi Taiping
Perbicaraan Jenayah No. 45-10-2004)
DIANTARA
PENDAKWA RAYA … RESPONDEN DAN
1. ONG TENG FOR
2. CHEW AH LAN @ CHEW KAI TONG … PERAYU-PERAYU
CORAM:
(2) HAJI ABDUL MALIK BIN HAJI ISHAK, JCA (3) SYED AHMAD HELMY SYED AHMAD, JCA
JUDGMENT OF THE COURT
The appeal herein is concerned with the degree of maximum evaluation that the evidence of a single witness upon which
the conviction was founded should be subjected to by the trial Court. It is the appellants’ contention that since the conviction
was founded on the evidence of a single witness the Court must subject his evidence to a greater test of credibility in accord
with the principle of maximum evaluation.
Both the appellants herein were tried, convicted and sentenced to death by the trial judge for causing the death of one Tan Ah Ching
(the “deceased”) an offence punishable under Section 302 of the Penal Code read together with Section 34 of the same Code. Both
the appellants now appeal to this Court against the conviction and sentence.
The narrative of the prosecution’s case was admirably set out by the learned trial Judge at pages 10 to 14 of Volume I of the Appeal
Record. The prosecution’s case as distilled from the evidence of the principal witness Sonai a/l Uchor (SP3), an illegal
immigrant from Myanmar, was that on the 15.4.2004 he was working for the deceased in the latter’s fish farm. At about 5.30 p.m.
he noticed a speed boat which came and parked beside the speedboat belonging to the deceased. There were 2 occupants in the speedboat,
subsequently identified as the appellants. They called for the deceased. As the deceased did not hear SP3 alerted him. He then heard
the deceased talking to the appellants in angry tones. He saw the deceased then armed himself with a piece of
wood. It was his testimony that he saw the 2nd appellant taking out a
pistol and aimed at the deceased. The 2nd appellant then handed the pistol to the 1st appellant. Upon seeing it the deceased retreated to a grinding machine for fish food.
SP3 said that the 1st appellant, armed with the pistol, then followed the deceased to the grinder and shot the deceased 5 times. The 1st appellant then went back to the speedboat and left with the 2nd appellant. SP3 noticed that the deceased had two gunshot wounds and tried to assist him. It was SP3’s further evidence
that both the appellants returned. This time both the appellants got out of the speed boat and approached the deceased. The
deceased had asked SP3 to distance himself. The 1st appellant fired one shot on the right side of the deceased’s head. The 2nd appellant was said to have warned SP3 not to disclose to anyone the number of their speedboat. Both the appellants then
left.
SP3 then drove the deceased’s boat to look for help. While on his way he met SP5, the deceased’s younger brother, and told him
that the deceased had been shot.
The evidence of SP3 was subjected to vigorous cross-examination by learned defence counsel on the aspect of several visits
by the deceased’s wife and the deceased’s family solicitor with a view of persuading SP3 to give evidence favourable
to the deceased. The central focus of this head of challenge was that the Counsel who was engaged by the deceased’s family to
hold a watching brief coached SP3 to give favourable evidence and hence it is incumbent upon the prosecution to call or
at least offer the appointed Counsel for cross- examination to dispel the coaching suggestion, the failure of which has
further compromised the credibility of SP3. In support of the challenge learned defence counsel referred to SP3’s evidence appearing
at pages
68 and 70 of the Appeal Record.
The learned trial Judge in analysing the testimony of SP3 found him to be a witness of truth and his evidence credible.
From the evidence adduced the learned trial Judge was satisfied that the deceased was shot by the 1st appellant using a pistol and the culpability of the 2nd appellant through the application of common intention under Section 34 of the Penal Code.
Learned defence Counsel’s challenge to the learned trial judge’s findings is that SP3’s evidence is not credible for acceptance
as given his status as an interested witness (being an illegal immigrant nevertheless was given employment by deceased)
the learned trial judge should have tested his evidence from the angle of motive and the contradictions and/or discrepancies present
which would have negatived the credibility of SP3. The contradiction and discrepancies highlighted by learned defence Counsel pertains
to portions of his evidence as to his understanding and knowledge of Chinese and Bahasa Malaysia which learned Counsel submits was
an attempt by SP3 to portray himself as a person who completely did not understand Chinese and Bahasa Malaysia. It is obvious
according to learned Counsel that SP3 had perpetrated a deliberate lie and hence it is incumbent upon the trial court to have approached
SP3’s evidence with caution. In the light of the lie on his understanding of both Chinese and Bahasa Malaysia SP3 cannot be discounted
from perpetrating lies and/or embellish other aspects of his evidence as regards the 2nd appellant who took out the pistol, aiming
at the deceased and passing it to the 1st appellant; that the deceased
never attacked the 1st appellant and there was no struggle between the two; that he heard the 1st appellant firing five shots; that both appellants came back a second time when the 1st appellant went to the platform and shot the deceased.
In further amplification on the issue of SP3’s credibility learned defence counsel alluded to the prosecution’s opening address
principally to the absence of any mention of evidence which points towards common intention namely the factum of the taking
out of the pistol by the
2nd appellant and his subsequent handing over of the pistol to the 1st
appellant after taking aim at the deceased and both appellants turning back immediately and the firing of one shot at the deceased’s
head by the 1st appellant. The authorities relied upon by learned defence counsel in support of the omission aforesaid which casts aspersion
on SP3’s credibility are Yee Wen Chin v PP & Anor Appeal [2008] 6 CLJ
Challenge was also mounted on the failure of the trial judge to appreciate the defence of both the appellants in that the 2nd merely accompanied the 1st appellant to meet the deceased, that he had known the deceased since childhood days and bore no animosity towards him, that the
deceased abused and hit. The 1st appellant with a stick, surrendering himself to the Balai Polis Bagan Serai and his denial of taking out the pistol and handing
it over to the 1st appellant who subsequently shot the accused. The non-appreciation of the 1st
appellant’s defence was the failure to appreciate the evidence of the injuries suffered by him which injuries is consistent with
his evidence that he was assaulted by the deceased when he was on the platform after being invited by the deceased. Further the
medical report IDDI ought to have been admitted although the doctor was not called as it is a public document made by a government
medical officer.
The final ground of challenge was the refusal of the trial judge to accede to the defence request to call the Myanmar interpreter
to state his qualifications. The challenge is premised on defence counsel’s contention that the Myanmar interpreter being
a free lance interpreter who is only registered with the Federal Court is not qualified.
We shall now address our minds to the several heads of challenge mounted by learned defence Counsel.
On the challenge that SP3’s evidence should be tested from the angle of motive and the contradiction and discrepancies appearing
between his testimony in examination-in-chief and cross-examination and against the evidence of SP5 and SP10 in determining the issue
of SP3’s credibility the learned trial judge had conducted an evaluation of the evidence as elucidated through SP3, SP5
and SP10 and was satisfied of SP3’s credibility on his comprehension and understanding of Bahasa Malaysia. The trial judge’s
rationale was that though he may not be proficient nevertheless there was ample evidence that he could speak and understand
Bahasa Malaysia.
The issue of the limited level of SP3’s understanding of Bahasa
Malaysia and Chinese was addressed by the learned trial judge at page
33 of the Record of Appeal where he opined:-
“Saya percaya dengan keterangan SP3 bahawa kefahaman Bahasa Malaysia dan Cinanya terbatas. Beliau memerlukan khidmat jurubahasa Myanmar ketika memberi keterangan di Mahkamah dan ketika menghadiri kawad cam.
SP5 adik kepada SP3 juga mengatakan walaupun beliau bercakap dengan SP3 dalam Bahasa Malaysia, SP5 mengaku Bahasa Malaysia nya dan juga SP3 tidak berapa bagus.”
It is evident from the learned trial judges written judgment that he addressed his mind to the contradiction between the prosecutions’
witnesses as to SP3’s level of comprehension of Bahasa Malaysia and Chinese language in arriving at his conclusion of the credibility
of SP3. He had also in arriving at his credibility finding of SP3’s evidence took into consideration the sign language communication
of SP3 and the reasons advanced by SP4 as to the several visits to SP3. The totality of the evidence leads us to conclude that the
trial judge was correct in his credibility finding and there is no reason for appellate intervention.
In upholding the credibility finding we have also carefully considered the arguments advanced by learned defence counsel
on the absence of any mention in the opening address of certain essential parts of SP3’s evidence namely the factum of the 2nd appellant producing the pistol taking aim at the deceased before handing it over to the 1st appellant and the fact of both appellant coming back and the 1st appellant firing 1 shot at the deceased’s head.
From a historical perspective opening address plays an important role in addressing the jury in this country as to the brief
evidence intended to be proved by the prosecution before the trial begins. However, when the jury system was abolished
way back in 1994, this provision remains in our statute book. Apart from the information laid in the charge against the accused
and the supply of documents to the defence, the opening address invariably serves some purpose, if not all, to the accused in strategising
his defence. In actuality, there is no hard and fast rule in tendering the opening address as it depends on the facts and circumstances
of a particular case. The more complex the case the more there is a need for an opening address. Learned Counsel submits that
the presence of the word “shall” in section 179 (1) of the Criminal Procedure Code makes it mandatory for the prosecution to
mention the essential evidence that the prosecution would be adducing through its witnesses in support of the charge, the omission
of which would affect the credibility issue. We disagree with learned Counsel’s contention and is of the view that it is directory
in nature.
Section 179(1) of the Criminal Procedure Code reads as follows:-
“The officer conducting the prosecution shall open his case by stating shortly the nature of the offence charged and the evidence by
which he proposes to prove the guilt of the accused.”
The word “shall’ appearing in the section is to our mind predicated by the word “propose” which in its dictionary meaning
is to “offer or put forward or suggest.” Since the section relates to the evidence which is to be offered or put
forward or suggested the regulation of the nature thereof is reposed to the officer conducting the
prosecution and hence in that context Section 179(1) of the Criminal Procedure Code cannot be said to be imperative or mandatory
but directory.
In support of the “directory” nature of the section we allude to the case Hee Nyuk Fook v Public Prosecutor [1989] 2 MLJ 360 where the Supreme Court dealt with the issue as to whether section 158(ii) of the Criminal Procedure Code is a mandatory or directory.
The Supreme Court was of the view that the word “shall” appearing need not be a mandatory procedure in every case as it depends
on the facts and circumstances of each case. At page 362, it was held, inter alia:
“The question that arises is whether section 158(ii) is mandatory or directory. In our view, the word “shall” appearing therein, though generally taken as mandatory, does not mean to be so in every case. No hard and fast rule can be laid down because it depends on the facts and circumstances of a particular case, the purpose and object for which such provision is made, the intention of the legislature in making the provision and the serious inconvenience or injustice which may result in treating the provision one way or the other (see
Interpretation of Statutes by Bindra, 7th Ed., p. 662). We are of the
view that the safest way is to look into the subject-matter of the case, consider the importance of the provision that has been disregarded,
the relation of the provision to the object of the Code and decide in that order whether the matter is imperative or only directory
(see Howard v Bodington [1877] 
2 PD 203 at p 211).
Applying the test to the facts and surrounding circumstances of the case, we hold that in so far as this case is concerned, the provision of section 158(ii) is not imperative but directory. The provisions contained therein only lay down a rule of procedure and do not relate to the mode of trial. A fortiori in the light of the provision of section 422
of the Code. The nature of the amendment being purely technical and in no way substantial has not rendered the omission to read over and explain the amended charge to the applicant at the close of the defence a serious irregularity as to vitiate the proceeding or has occasioned a failure of justice.”
It is also instructive to note that in the case of People (Director of Public Prosecutions) v C, Court of Criminal Appeal [2001] 3 IR 345, the Court of Criminal Appeal was of the view that the prosecution is not bound by its opening address. At page 9, the Court had this to say, inter alia:
“…It is in the very nature of the trial process where evidence is presented and tested, that new facts or elements may emerge as the trial proceeds. As the learned trial judge indicated the mere fact that a conflict of evidence has emerged which was not reflected in the opening of the case by the prosecution is not a basis for directing a verdict of not guilty. If something emerges during a trial which goes to the very root of the prosecution case rendering it tenuous or dangerous upon which to convict then such an issue, having been addressed on its own merits, would be a ground of such a direction to a jury. The mere fact that the prosecution, in opening the case, did not anticipate a particular conflict of evidence is not such a ground. No basis has been established upon which the trial judge should have directed the jury to acquit and this ground of appeal must be refused.”
In the local context it is indeed worthwhile to look at the decision of PP v Sa’ari Jusoh [2007] 2 CLJ 197 wherein the Federal Court was of the view that no doubt the prosecution diverted their strategy from the opening address tendered
it was not fatal ‘so long as the accused was
not placed in a tactical disadvantage with resultant unfairness to him’. At pages 218 - 219, the Federal Court held, inter alia:
“However, there may be instances where the prosecution has indicated the basis upon which it seeks a conviction and the evidence adduced demonstrates a further basis for conviction on the offence charged or an alternative offence which is available at law. Is the prosecution bound by what was stated in the opening address in such circumstances? In resolving this issue the Court of Criminal Appeal of South Australia said in R v Franco [2003] SASC 140:
Although it is desirable that the prosecution should indicate at the commencement of the trial the basis upon which it seeks a conviction, there will be cases in which the course of the evidence gives rise to the possibility of a further basis for conviction on the offence charged or the basis for a conviction on an alternative offence which is available at law. An important consideration for the trial judge in deciding whether to leave to the jury a path to conviction not previously mentioned is whether the accused has had an adequate opportunity to test evidence relevant to such reasoning, to call evidence relevant to it, and to address the jury on it.
A trial judge is not bound by the prosecutor’s formulation of its case. It may be necessary for the judge to consider whether it is appropriate to leave alternative verdicts to the jury or direct on alternative paths to conviction irrespective of whether such alternatives are relied upon by the prosecution. However, it is essential when considering such a course to have regard to whether unfairness would result if, through no fault of the defence, the alternative basis had not been properly addressed during the trial.”
The function of the trial judge and the approach to be adopted by an appellate court in these circumstances were summarised by Street CJ in R v Solomon [1980] 1 A Crim R 247, at pages 249 - 250:
“Ordinarily, it is the province of the Crown to formulate and present the case for the prosecution which will, in due course, be summed
up by the judge to the jury. There may, however, be other matters of fact or law which the trial judge, in the discharge of his
duty to ensure a fair trial according to law, considers it necessary to put to the jury, even though not propounded or developed
by the Crown. The fairness or unfairness of travelling beyond the ground covered by the Crown will, of course, be evaluated by the
trial judge and will be to the forefront in deciding how far, if at all, to put new considerations to the jury. It seems to me that,
where a judge does cover fresh ground in terms that are correct in law and properly based on evidence in the case, at the highest
his decision so to do will only be challengeable if it can be seen that the accused person was thereby placed at a tactical disadvantage.
In such a situation, appellate intervention would be appropriate, not by reason of the judge having canvassed fresh ground simpliciter,
but by a reason of unfairness attending his so doing. The relevant unfairness will ordinarily be looked for in procedural
considerations. The judge, drawing upon his own forensic experience, will be readily appreciative of the tactical considerations
which will have governed counsel in the conduct of the case for the accused. Objections to evidence, lines of cross-examination and
decisions upon the material to be advanced on behalf of the accused, not to mention the general trend of the final address to the
jury made on behalf of the accused, will all, of course, have been governed by the nature of the Crown case as opened by the
prosecutor and developed through evidence tendered on behalf of the Crown at the trial. It is readily understandable that within
these procedural and tactical fields there could arise an element of real prejudice if the judge, in his summing- up, raised new
approaches available to, but not expressly relied upon,
by the Crown. But in every case in which a question arises regarding the development of new approaches, the question concerning the judge at first instance, and on appeal the question concerning this Court, will be to determine whether in so doing there will be worked an unfairness to the accused.”
In R v Solomon [1980] 1 A Crim R 247, at page 222, Street C.J. also adverted to the Judgment of his brother Judge Moffitt P and had this to say:
“In dealing with the proper way in which a conviction can be secured on a basis not opened by the prosecution, Moffitt P said at pages 256
– 257 :
With respect, where it appears to a presiding judge that the evidence in the case leaves open a finding say of murder on a basis not opened by a Crown Prosecutor, the better course is to raise the matter with counsel prior to final addresses. Then, according to the responses of counsel, a decision can be made whether it is appropriate that the direction be given. Counsel can be informed of the proposal with the result that the jury will have the benefit of the submissions of both counsel upon the question. The accused then will not be deprived of the opportunity of having submissions made thereon on his behalf. If counsel for the accused claims he has been deprived of some opportunity to cross-examine or lead evidence, the presiding judge will be in a superior position to consider any question of prejudice. This did not occur.
It was further contended at the trial and before us that counsel for the appellant was also deprived of an opportunity to cross-examine witnesses on the omitted issue. It may well be that no additional question would or could have been asked and we were not told of any such, but I am inclined to the view that similar considerations apply as
do in relation to counsel’s address. However, the failure to raise the matter before counsel’s address is sufficient in my view to render the trial unsatisfactory so that there was a miscarriage of justice requiring this Court’s intervention.
It follows that a verdict can be founded on a basis not indicated by the prosecution in its opening address. But it must be done in such a way so as not to place the accused at a tactical advantage with resultant unfairness to him. This conclusion is consistent with s.422 of the Criminal Procedure Code (“the Code”) which reads as follows:
Subject to the provisions contained in this chapter no finding sentence or order passed or made by a Court of competent jurisdiction shall be reversed or altered on account of:
(a) any error, omission or irregularity in the complaint, section, consent, summons, warrant, charge, judgment or other proceedings before or during trial, or in any inquiry or other proceedings under this Code: or
(b) the want of any sanction; or
(c) the improper admission or rejection of any evidence, unless such error, omission, irregularity, want, or improper admission or rejection of evidence has occasioned a failure of justice.”
Thus to our mind the non-mention of the aforesaid evidence in the opening address does not affect the prosecution’s case. The Federal Court in PP v Sa’ari Jusoh [2007] 2 CLJ 197 has in no uncertain terms held that the prosecution is not fettered from adducing evidence not mentioned in the opening address.
In this connection the two cases
relied upon by learned defence counsel is clearly distinguishable in that in Yee Wen Chin v PP & Another Appeal [2008] 6 CLJ 773 the omission was in respect of the act of carrying which is a factum of critical importance to establish the element of trafficking.
Again the unreported decision of PR v Zainal Arpan bin Molana (Rayuan Jenayah Q-05-
Turning to the second ground of challenge in that the prosecution’s failure to call or at least to offer Mr. Ranjit
Singh (the solicitor for the family of the deceased) for cross-examination has compromised the credibility of SP3 is
to our mind without merits. Though there was a suggestion that the visit by Mr. Ranjit Singh to SP3 was to coach SP3 to
give evidence in Court nevertheless it was vehemently denied by SP3.
In this connection we have carefully perused the notes of evidence and must confess that we are unable to find evidence of any attempt
by Mr. Ranjit Singh to coach SP3 – hence the necessity to call him as a witness or offer him for cross-examination does not arise.
We now come to the issue of the Myanmar interpreter. From the notes of evidence appearing in the Record of Appeal the objection
against the interpreter was raised after completion of not only the evidence of SP3 but also that of SP4 and SP5. The
evidence of SP3 was recorded over a space of 4 days namely 3.1.06, 4.1.06, 5.1.06 and
11.1.06 and objection was only raised on 13.1.06. From the record no objections were raised against the interpreter during the course
of the recording of the evidence of the 5 witnesses. The fact that he is a free
lance interpreter not from the Myanmar Embassy and not engaged full time by the Federal Court does not to our mind result in the evidence
of SP3 as interpreted by him being unacceptable. Being registered as an interpreter by the Federal Court is by itself an acknowledgement
of his qualification to interprete in the Myanmar language – hence there is no necessity for the Court to recall the interpreter
just to state his qualification. The objection is without any merits whatsoever.
The third and final ground of challenge by learned defence counsel is against the failure of the learned trial judge to appreciate
the defence of the appellants. We had in the earlier part of our judgment laid out the several aspects of both the appellants’
defence which learned Counsel submits that the learned trial judge failed to appreciate. Upon perusing the Appeal Record we have
to reject this ground of challenge as the learned trial judge did address and analyse the defence before dismissing same. This was
what the learned trial judge had to say at pages 26 to 27 of the Record of Appeal:
“Keterangan T1 bahawa simati telah memukulnya dengan sebatang kayu panjang adalah diragukan. Ini berdasarkan kepada keterangan T1 sendiri di m.s. 95 dan 96 Nota Keterangan:-
Bila saya naik (ke atas pelantar) simati terus pukul saya dengan sebatang kayu. Kena pada belakang tapak tangan saya. Tangan saya cedera.
Saya menghampiri simati kerana tidak mahu bergaduh dengannya. Simati buang kayu dan lari sehingga ke rumah enjin proses makan ikan.
Saya ekorinya kerana takut simati akan ambil sesuatu untuk pukul saya.”
The learned trial judge in analysing the evidence of the 1st appellant rejected it as unreasonable for acceptance and gave his reasons for doing so which he stated at page 27:
“Keterangan T1 adalah tidak munasabah langsung. Sekiranya benar simati telah memukulnya, simati telahpun membuang kayu itu dan lari kebelakang. Jadi apa perlu T1 terus mengekori simati. Alasannya bahawa beliau takut simati tidak akan mengambil sesuatu untuk memukulnya lagi adalah tidak munasabah kerana:
(i) Sekiranya benar simati masih mahu memuklul T1 apa perlu simati membuang kayu panjang yang dipegangnya dan mencari benda lain pula untuk memukul T1.
(ii) T1 mengatakan setelah dipukul dan cedera beliau menghampiri simati kerana tidak mahu bergaduh dengan simati. Kemudiannya beliau mengatakan memukulnya lagi. Sekiranya tidak mahu bergaduh dan takut dipukul oleh simati sepatutnya turun semula ke botnya, bukan mengekori simati.”
After rejecting the 1st appellant’s testimony as to the assault, the learned trial judge found the testimony of SP3 on the issue of whether or not the
deceased assaulted the 1st appellant more credible for acceptance. His reasons was amply laid out at page 27 of Record of Appeal wherein he stated:
“Jawapan yang munasabah telah diberikan oleh SP3. Menurut SP3 semasa T1 dan T2 sampai telah berlaku pertengkaran diantara T1 dan T2
dengan simati. Simati yang berada di pelantar ikan telah mengambil sebatang kayu panjang. Melihatkan tindakan simati itu T2 yang
berada di atas botnya telah mengeluarkan sepucuk pistol dan mengacukannya kepada simati. Melihatkan pistol diacukan
kepadanya, simati telah membuang kayu yang dipegangnya.
Ini menunjukkan simati menjadi takut apabila melihat pistol diacukan kepadanya dan beliau melarikan diri ke belakang.”
In conclusion we wish to reiterate the trite principle that an appellate court will not readily interfere with findings of fact by the trial court to which the law entrusts the primary task of evaluation of the evidence, except in cases where the appellate court is convinced that the trial court has so fundamentally misdirected itself that one may say that no reasonable Court which had properly directed itself and asked the correct questions would have arrived at the same conclusion (i.e. plainly wrong). See: (i) Raja Lob Sharuddin bin Raja Ahmad Terzali
The logic for this is found in the fact that the appellate court does not have the audio visual advantage afforded to the trial court, in seeing, hearing and assessing the witnesses at the trial. Hence, an appellate court is not likely to reverse or depart from the trial judge’s finding save where he has misdirected himself. See: China Airlines Ltd v Maltran
In Lai Kim Hon & Ors v PP [1981] 1 MLJ 91, the Federal Court has echoed the same principle long ago and had this to say at p. 93, inter alia:
“Viewed as a whole it seems clear that the finding of fact made by the trial judge turned solely on the credibility of the witnesses. The trial judge heard the testimony of each witness and had seen him. He also had the opportunity to observe the demeanour of the witnesses. Discrepancies will always be found in the evidence of a witness but what a judge has to determine is whether they are minor or material discrepancies. And which evidence is to be believed or disbelieved is again a matter to be determined by the trial judge based on the credibility of each witness. In the final analysis it is for the trial judge to determine which part of the evidence of a witness he is to accept and which to reject. Viewed in that light we did not consider it proper for this court to substitute its findings for that of the learned trial judge.”
The principle of law governing appeals in criminal cases on questions of fact are well established, in that the Appeal Court
will not interfere unless the balance of evidence is grossly against the conviction especially upon a finding of specific fact involving
the evaluation of the evidence of a witness founded on the credibility of such witness.
Upon evaluating the Record of Appeal we are of the considered view that the conviction is right and safe. The learned trial judge
had very carefully analysed all the available evidence before him and made specific findings of fact founded upon that which he believed
to be the truth. He also drew certain inferences from facts specifically found. In
this respect we may form our independent view but we should only do so where the fact upon which the inference was drawn was
either unwarranted or manifestly against the weight of evidence. That was not the case here. In considering the appeal before us
we gave very serious consideration to the submissions made by both learned defence counsel and learned deputy. In our judgment there
was no merit in learned defence counsel’s argument and we are in full agreement with the findings and conclusion of
the learned trial judge. We therefore dismissed the appeal against conviction and sentence.
Judge
Court of Appeal Malaysia
PUTRAJAYA
Dated this 25th day of July 2011
Counsel for the Appellant: Encik Hisyam Teh Poh Teik Tetuan Teh Poh Teik & Co Peguambela dan Pecuamcara
Suite 11.08, 11th Floor, Menara TJB No. 9, Jalan Syed Mohd. Mufti
80000 JOHOR BAHRU
Counsel for the Respondent: Encik Murtazadi bin Amran Timbalan Pendakwa Raya
Bahagian Perbicaraan & Rayuan Jenayah
Jabatan Peguam Negara
Aras 5, No. 45, Lot 4G7
Presint 4, Persiaran Perdana
62100 PUTRAJAYA
Cases referred to in this judgment:
1. Yee Wen Chin v PP & Anor Appeal [2008] 6 CLJ 773
2. PR v Zainal Arpan bin Molana
3. Hee Nyuk Fook v Public Prosecutor [1989] 2 MLJ 360
4. Howard v Bodington [1877] 2 PD 203
5. People (Director of Public Prosecutions) v C, Court of Criminal
Appeal 2001 3 IR 345
6. PP v Sa’ari Jusoh [2007] 2 CLJ 197
7. Court of Criminal Appeal of South Australia said in R v Franco
[2003] SASC 140
8. Street CJ in R v Solomon [1980] 1 A Crim R 247
9. R v Solomon [1980] 1 A Crim R 247
10. The Federal Court in PP v Sa’ari Jusoh [2007] 2 CLJ 197
11. PR v Zainal Arpan bin Molana (Rayuan Jenayah Q-05-146-
2006)
12. Raja Lob Sharuddin bin Raja Ahmad Terzali & Ors v Sri Seltra
Sdn Bhd [2008] 2 MLJ 87
13. Zaheed bin Ahmad & Ors v Tham Poh Theng & Ors [2007] 6
MLJ 78
14. OSK Securities Bhd v Probo Pacific Leasing Pte Ltd [2009] 2
MLJ 87
15. Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Send & Ors [2005] 2 MLJ 1.
16. China Airlines Ltd v Maltran Air Corp Sdn Bhd (formerly known as
Maltran Air Services Corp Sdn Bhd) [1996] 2 MLJ 517.
17. Lai Kim Hon & Ors v PP [1981] 1 MLJ 91
] [Hide Context]
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