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High Court of Sabah and Sarawak |
] [Hide Context] URT OF SABAH AND SARAWAK
CRIMINAL APPEAL NO. 41A-03-2010 (BTU)
JAMALUDDIN BIN IBRAHIM ... APPELLANT
PUBLIC PROSECUTOR ... RESPONDENT
The Appellant was charged:
“That you, on the 16th of October, 2007, at about 2230 hrs, at shophouses, No:27. Pasar Baru Tatau, Tatau, in the state of Sarawak committed criminal
intimidation by threatening Khalid Khan Bin Foizal Ghani (m) with injury to his person, with intent to cause alarm to him, to wit,
by verbally uttered ‘sekira kamu tidak tarik kes, saya akan potong kamu’*, and that
you have thereby committed an offence punishable under Section 506 of the Penal Code.”
(* ‘If you do withdraw the case I will chop you’)
Code defines criminal intimidation as whoever
n with intent to cause alarm to him will be guilty of
an offence which is punishable under Section 506.
The learned Magistrate had sentenced the Appellant to a fine of RM5000.00 and in default 3 months imprisonment. The Appellant
not satisfied with the decision of the learned Magistrate has appealed against the conviction and sentence.
Upon hearing and reading the submissions of learned counsel for the Appellant and DPP, I will dismiss this appeal on the following
grounds:-
1. First Information Report and PW1’s testimony
Learned counsel for the Appellant had submitted that the wording of Exhibit P1 the First Information Report (“FIR”), whereby
the complainant (PW1) had said “KPL Jamal gave me warning words”: “If you do not withdraw the case, I will chop you”, when
compared with what the complainant PW1 said in evidence (at page 12 of the Record Of Appeal (“ROA”)) where he elaborated further
and included the words “take my life, kill me or cut me”, shows it differs and is contradictory and is fatal to the prosecution’s
case. Learned counsel for the Appellant also referred the case PP v Lee Eng Koi 1993 2 CLJ 534 quoting Vincent Ng JC from page 535 paragraphs 3 to 5 in support. Further the use of the word “amaran” (warning) instead of
the word “ugutan” (intimidate) in the FIR shows that PW1 did not feel threatened.
Learned DPP submitted that the use of the word “kata amaran” or warning words in the FIR does not raise any reasonable doubt
whether a threat existed
ned DPP then further submitted that there is no
evidence of PW1 with his FIR as the nett result is
that the offence of criminal intimidation has been made against the complainant as he was put in alarm. In respect of the inaccuracy
arising from the amount, question of degree of the threats made is not relevant or will affect the outcome or credibility of PW1.
The cases of PP vs. Fong Chee Cheong (1970) 1 MLJ 97 and Balachandran v PP (2005) 2 MLJ 301 already accepts that no FIR or any inconsistency in the FIR is not always fatal to a case as it is not treated as substantive evidence.
In Herchun Singh & Ors v PP (1969) 2 MLJ 209, Ong Hock Thye CJ (M) (at page 211F) cited with approval the following extract from Sohoni’s Commentary of the Indian Criminal
Procedure Code (16th Edition Vol. 1, page 750):
“.......... All that is required for purpose of this section is that there should be clear, definite information about the commission
of a cognizable offence to set the investigation machinery in motion. Further, the information required need not contain
the circumstances of the commission of the offence, nor the names of the offenders or the witnesses, for the main purpose of
investigation is to ascertain these matters .... The first information report is not an Encyclopaedia. It is not the
beginning and ending of every case. It is only a complaint to set the affairs of law and order in motion. It is only at the investigation
stage that all the details can be gathered and fill up. But it cannot be said that omission in the first
omissions in it will not ipso facto lead to the case being thrown out. But it is a piece of corroborative evidence; omissions
in it will, other things being the same, deprive the prosecution of the most valuable corroboration and thereby make the story suspicious.
When a first information report contains an omission as to an important fact relied upon by the prosecution, the omission is important
and in the absence of any other evidence, the court may in a given case refuse to consider the evidence of the informant on
that fact because of such omission. For a correct appraisal of the effect of omission as contradicting the informant it is essential
to keep in view the circumstances in which the report was lodged.
For instance, an omission in a report hurriedly lodged under the press of events should not have the same significance as one in a
report lodged after cool calculation.”
And his lordship went further to say at page 211B (ibid):
“...it is wrong to hold up the first information report as a sure touchstone by which the complainant’s credit may invariably
be impeached. It can only be used for that purpose with discrimination, in much the same way as previous statements by the witness
are used, so that irrelevant errors
in the light of surrounding circumstances.”
(Emphasis added)
In the light of Herchun Singh’s case (supra), the Court agrees with the submissions of learned DPP in respect of the use of the word “amaran”
(warning) and not “ugutan” (intimidate) used in that context was meant to mean a threat, we must look at the circumstances at
the time of the incident. On this intent to cause alarm from the intimidation, in Sinnasamy Kaliappan v PP (2005) 1 LNS 293, Low Hop Bing J. had occasion to say that “...the second ingredient i.e. the accused intent by its very nature cannot be proved
by direct evidence but may be inferred from all the circumstances of the case...”
When we look at the unfolding circumstances of the incident which speaks for themselves, why should PW1 call the Police and follow
with lodging a report against the Appellant... obviously he must have felt threatened and alarmed by what the Appellant said and
by the acts of brick throwing and he parking his car in front of his shophouse causing him to call the Police to his aid. We have
to bear in mind that the Appellant is a police officer and after the words were uttered if it was a warning and not a threat why
should PW1 say (at paragraph
1 of page 13):
“I feel scared and refused to go down.”
The Court also agrees with submissions of learned DPP that there is no material contradiction in PW1’s own evidence,
since the key word in the FIR is
‘chop’ which is sufficient threat for criminal intimidation and when compared
e learned Magistrate’s findings and conclusions (at the second paragraph of page 184 of the ROA):
“Based on this, I find that there is no discrepancy of evidence between PW1 and PW2. The words heard by PW1 and PW2 might be
slightly different whereby PW1 – ‘.... he (the accused) will take my life or kill me or cut me...’ and PW2 – ‘... the accused
said come down or I will kill you..’ and P1 “sekira kamu tidak tarik kes, saya akan potong kamu’ but the meaning is the
same that is causing injury to their person.”
is supportable by the evidence before her.
What is critical as put by Vincent Ng, JC in Lee Eng Koi’s case (supra) at page
535 at paragraph 5:
“If in a case the prosecution leads two sets of evidence, each one of which contradicts and strikes at the other and shows it to
be unreliable, the result would necessarily be that the Court would be left with no reliable and trustworthy evidence upon which
the conviction of the accused might be based. Inevitably, the accused would have the benefit of such a situation”.
The Court accepts the conclusion of the learned Magistrate and finds that there is no material contradiction from the FIR that strikes
down the other evidence from PW1 in Court as to render the evidence of PW1 unreliable or his report of criminal intimidation as not
made out. If PW1 had said in his oral testimony that the Appellant had threatened to shoot him, that would be a
material
dit his evidence. By enlarging on the kind of harm oral testimony which was omitted from the FIR in
itself did not contradict or change his evidence of threat of injury especially when “cut” is part of the oral testimony that
tallies with “chop” in the FIR. The issue really is, what was reported in the FIR and said in oral testimony, do they still amount
to a threat of injury to the complainant, which this Court as the learned Magistrate has also found is the same threat of chopping
or cutting and therefore is still adequate for the purposes of supporting a case of criminal intimidation against the Appellant
notwithstanding the inclusion of omissions in PW1’s oral testimony later on.
The Court holds that Grounds 1 (a) and (b) on this aspect of the FIR and its contradiction with PW’s1 oral testimony are not made
out and fails.
2. PW2’s evidence, Location and Defence evidence.
Learned counsel for the Appellant submitted there appears to be contradiction arising from the location of PW1 and PW2 (the wife of
the complainant/PW1) because of their not being together, the threat could not have been made in front of PW1 and PW2. PW2 had said
PW1 had come down and talked to the Appellant and that was when she heard the threat was “come down I will kill you” which differs
from PW1’s FIR and evidence.
Learned DPP submitted there appears to be no contradiction arising from the location of PW2 as they were both on the staircase facing
the Appellant who was outside the stair’s grill and the evidence of PW2 as PW1 did hear the threat to include kill from the Appellant.
ons on the inconsistency of the oral testimony with the FIR, the Court had accepted the learned Magistrate’s findings
that Appellant had threatened PW1 by chopping or cutting which can also amount to kill. In respect of the wording of the threat
in PW2’s evidence, the Court’s review of the evidence with learned counsel for the Appellant and DPP had
revealed (at 3rd paragraph of page 20 of ROA) that PW2 only said what she
heard: “The accused said “come down or I will kill you” towards my husband”. Thereby this appears to be at odds as contended by learned counsel for the Appellant with the FIR which only
mentioned the threat of “chop”. However that is not the end of this because the Court had pointed out to learned counsel for
the Appellant if he were to read from the preceding paragraph 2 at page 20
ROA, when PW 2 was first asked what the husband and accused were talking about, her answer was:
“When he asked my husband to go down, there were a lot that the accused said but I heard my husband asked the
accused to discuss tomorrow morning since it was late”.
From this answer of PW2, it would appear to the Court that she may not have heard all the threats uttered by the Appellant as stated
by the husband PW1, including the threat to chop or cut PW1 in the FIR other than the alarming threat to kill which stuck in her
mind.
From this the Court can conclude that there had been no error made by the learned Magistrate in the finding on the evidence as
stated before that the threat of injury has been made against her husband, the complainant. Learned
t even though the word kill does not figure in FIR
evidence by PW1 that this threat was also made against him as to support PW2’s version of the threat made by the Appellant. Remembering
what is said in the cases of Fong Chee Cheong and Herchun Singh (supra) on FIR, the learned Magistrate was right in accepting that there has been a threat of injury to PW1 which has alarmed PW1
from the evidence of PW2 to support a conviction for criminal intimidation.
The other issue is in respect of the location of PW1 and PW2 in relation to the Appellant at the time of the incident, learned
counsel for the Appellant had attempted to use this apparent discrepancy that PW1 was not shown to be on the 1st floor of their shophouse to discredit the evidence of PW1 and PW2 as unreliable and that the threat could not have been uttered to
them both by the Appellant.
The short answer to clarify this is by reference to the findings by the learned Magistrate reveals that there is no substance
in the Appellant’s contention because she had found (see paragraph 1 at page 181 ROA):
“At that time, PW2 was behind PW1 who was standing on the staircase of their shophouse and the accused was standing on the other
side of the grilled fence.”
This finding is in fact supported by the following sequential extracts from the evidence:
In Exam in Chief, PW1 at paragraphs 1, 2 and 5 of page 12 of ROA had said:
“On 16.10.2007, I was at home.”
n, he will wait until morning and he will take my life,
kill me or cut me.”
At paragraph 1 of page 13 of ROA:
“I feel scared and I refused to go down ...”
At paragraph 7 of page 14 of ROA:
“...When the accused threw the brick it was around 10 meters. I ran up the staircase because I’m scared I’ll be hit....”
At paragraph 5 of page 15 ROA on photo 1 (Ex. P2):
“My shop is at the lower level and on top is my house.”
Obviously, home or house for PW1 can be none other than the first floor of his shophouse at 27, Jalan Tatau, Tatau, why else would
Jamaluddin ask him to “go down” or “come down” throughout the episode of the incident and there is no doubt that PW1 was
on the stairs of the staircase separated by the metal sliding grill at the entrance of the staircase when the threat was made by
the Appellant. (See exhibit P2 photographs (1), (2), (3) and (4) showing the
entrance of the staircase with the sliding metal grill leading to the 1st floor.) The
“going down” used in PW1’s testimony in its context in relation to the Appellant appears to the Court to mean to come down the
remaining stairs and go out of the metal sliding grill to talk to the Appellant.
The location of the parties at the staircase when the incident took place is supported and not contradicted by these extracts
from PW2’s evidence starting from penultimate paragraph of page 19 to page 20 of ROA:
irs in my house. Then the Accused came to our house. The accused asked my husband to go down. Then the accused making noises. So my
husband came down and talked to the accused.”
“When he asked my husband to go down, there were a lot that the accused said but I heard my husband asked the
accused to discuss tomorrow morning since it was late.”
“The accused said “come down or I will kill you” towards my husband.”
“At that time I was at the staircase also and the accused was talking loudly.”
From the above sequential extracts of PW1 and PW2’s respective testimony, we can see that there is no discrepancy as contended by
learned counsel for the Appellant in the evidence from PW1’s refusal to go down and PW2’s evidence that PW1 “came
down to talk to accused”, when we relate it into the context that PW1 and PW2 were both on the staircase leading to their home
on
the 1st floor of the shophouse. PW1 must have been at the last few steps away
from the metal sliding grill and the Appellant must have wanted him to come
(down) nearer or come out from the grill to talk which PW1 had refused.
The learned Magistrate was right after hearing the evidence before her and in believing the prosecution’s version that the Appellant
had made a threat that alarmed PW1 and not to give due weight to the evidence adduced by the
Learned counsel for the Appellant had submitted that the learned Magistrate was wrong when she ruled that the evidence of Appellant
is a mere denial by him because the maker of Exhibit D1, Angah and for Exhibit D2 his wife’s report about Angah, were not called
to testify on this.
The Court notes that Alang was positively identified by PW5 as being there (see paragraph 6 at page 26 ROA and paragraph 3 at page
27 ROA). PW5 was not cross examined on this aspect of his evidence (refer to Wong Swee Chin v Public Prosecutor (1981) 1 MLJ 212
at 213) and DW1 identified Alang to be with him at the time of the incident. On the other hand it was the defence’s own witness
DW2 who testified that one of Appellant’s sons was with him (see paragraphs 7 and 8 at page 119 ROA) but identified
him as Angah (see paragraphs 7 and 8 at page 120 ROA) who is Mohd Hafiz Fizaruddin according to DW1 (see paragraph 3 at page
113 ROA). Exhibits D1 and D2 mention the report as being made by a “Mohd Khairul Khidzanudin” who appears to be a different person.
The prosecution had cross examined DW1 as to who was with him at the time of the incident. Similarly on this ground the Court
accepts the Magistrate was aware that there was somebody with the Appellant and that after hearing the evidence it within the learned
Magistrate’s discretion as who and what to believe of the defence’s evidence on this and to find that the Appellant’s
defence is a mere denial that the incident ever happened which the learned Magistrate did not believe.
ese two last issues on the finding of facts. In any event the Court is of the view that they do not affect the elements of criminal
intimidation which the learned Magistrate has found to be established by her findings to convict the Appellant.
The Court holds that Grounds 1 (a), (b), (c) and (d) on these aspects of the discrepancy of PW2’s evidence, their location
at time of incident and the strength of the defence’s evidence are not made out and also fails.
3. Adverse Inferences
Learned counsel for the Appellant had lastly submitted that the learned Magistrate was wrong in law in failing to find an
adverse influence under 114 (g) of the Evidence Act 1950 against the prosecution for their failure to call the Appellant’s son
Alang @ Mohd Khairuddin (who the Appellant was waiting to pickup in front of PW1’s shop) citing the case of PP v Chia Leong Foo (2000) 4
CLJ 649. It was also wrong of the learned Magistrate to apply Section 114 (g)
against the defence for not calling Alang.
On the other hand learned DPP had submitted that it is the duty of the Appellant to call Alang, he being his son and
which submission the learned Magistrate had agreed with and had cited the case of Yeo Choon Huat v PP (1998) 1 SLR 217.
On the drawing of adverse inference for the prosecution’s failure to call Alang, there are two considerations here that the Court
has to take cognisance of firstly, it is the discretion of the prosecution whether to call or not to call a
Muhammed El Dabbab v Attorney-General for
Palestine (1944) 2 All ER 139; Teoh Hoe Chye v PP (1987) 1 MLJ 220).
This leads to the 2nd consideration, that is, if the prosecution had discharged its duty to make out a prima facie case there is no obligation to call or
offer other witnesses.
In Chia Leong Foo’s case (supra) Augustine Paul J at page 672 g had observed:
“It is well settled that in a criminal case prosecuting counsel, provided there is no wrong motive, has discretion as to
whether or not to call any particular witness and in particular has a discretion not to call in support of his case a witness
whom he does not believe to be a witness of truth (see Khoon Chye Hin v. PP [1961] MLJ 105). But there is an obligation on the prosecution to call as witnesses persons whose evidence is essential to unfold
the narrative upon which its case is based (see Seneviratne v. R [
1936] 3 All ER 36). Thus as Abdul Hamid CJ (Malaya) (as he then
was) said in Teoh Hoe Chye v. PP [1987] 1 MLJ 220 at p. 229:
Nevertheless, the decision whether to call or not to call a witness including a witness from whom a statement has been taken
is always the right of the prosecution (Abdullah Zawawi v. PP [1985] 2
MLJ 16). Insofar as the trial court is concerned, its duty is essentially to decide whether on the evidence before it the prosecution
has proved its case, and if there are unsatisfactory features in the prosecution case to determine whether, in the light
of such feature,
’s case, supra).
Thus the question to be asked in each case is whether the prosecution has proved its case even without calling some other witnesses
who are available. An adverse inference cannot be drawn for failure to call a witness when the prosecution has discharged
it burden............. As Yong Pung How CJ said in Chua Keem Long v PP [1996] 1 SLR 510 at pg 523-
524:
.........The court must hesitate to draw any such presumption unless the witness not produced is essential to the prosecution’s
case.........”
In this respect, the learned Magistrate has found that the prosecution had made out a prima facie case against the Appellant for criminal
intimidation based on the 8 witnesses she had heard up to the close of the prosecution’s case without calling Alang. Under the
circumstances the learned Magistrate was right not to make an adverse finding against the prosecution for failing to call
the Appellant’s son, Alang because in Chia Leong Foo’s case (supra) Augustine Paul J at page 666 d had accepted that there is no compulsion to draw a presumption on such failure by observing:
“... the words “may presume” in presumptions of facts like in s.114 of the Evidence Act 1950 which only gives the court a discretion
to raise the presumptions contained therein.”
Appellant and known to be with him at the time of the incident, it was open for the Appellant to call him as a witness to support
his case. There is no withholding of evidence by the prosecution from the Appellant or the Court as such and adopting the stand taken
in Yeo Choon Huat’s case (supra), the learned Magistrate was also right in refusing to draw an adverse influence under Section 114 (g) of the Evidence
Act 1950 for the prosecution’s failure to call Alang.
On the next issue as to whether an adverse inference can be drawn against the defence under Section 114 (g) according to the case
of Choo Chang Teik v PP (1991) 3 MLJ 423, Mohamed Yusoff SCJ at page 425 C said:
“......upon rebuttal evidence having been adduced, the law has cast the burden on the first appellant to prove his own contention
by the evidence of his friend at whose house he was seen beaten. When he failed to offer such proof the natural conclusion is that
the proof, if produced, instead of rebutting would sustain the charge.
On this view we are in agreement with the learned judge that an adverse inference can be drawn against the first appellant in the
present situation when a complete case has been made out against the first appellant and the case disclosed that there is evidence
which could be produced by the appellant to negate the charge against him – see commentary on s 114
Law of Evidence in India by Woodroffe and Ameer Ali (13th Ed) at p 2656.
Our view is fortified by the decision in Baharom v PP2. In that case, the accused was convicted and sentenced to death for murder. He raised
u Jail, the Medical Officer i/c of Prison and the Medical Superintendent, Tanjong Rambutan were in a position to give
evidence if called upon as to the accused’s state of mind. The defence did not produce any of those witnesses. The learned trial
judge expressed his opinion, when directing the jury, that he could find no evidence of insanity.
On appeal...................Thomson J said at p. 250:
....it was for the defence to call that evidence and if they did not do so the jury might safely draw the unfavourable inference provided
for by s 114 (g) of the Evidence Ordinance, that is to say that if called it would be unfavourable to the accused.
....in such a case there is an onus on the defence, that is to prove that the accused was insane.”
On the facts found by the learned Magistrate, all the elements of criminal intimidation have been assembled sufficient
to convict the Appellant. It is the Appellant’s defence denying that the incident ever happened and his only witness
for this was Alang his son. The learned Magistrate was right to proceed to draw an adverse against the Appellant under Section 114
(g) for his failure to call Alang to give evidence in support of his mere denial of the incident of criminal intimidation. The
Appellant having failed to discharge his evidential burden to call Alang to support his defence to rebut the charge of criminal
intimidation made out against him the learned Magistrate was right to proceed to find him guilty as charged.
t and it also fails.
4. Sentence
The law on an appellate court’s role when considering a sentence passed by the trial court is succinctly put by the
Federal Court in the case of Bhandulananda Jayatilake v. PP (1981) 1 LNS 139; (1982) 1 MLJ 83, where Raja Azlan Shah Ag LP (as HRH then was) at p. 84 imparted the following guide:
“As this is an appeal against the exercise by the learned judge of a discretion vested in him, is the sentence
so far outside the normal discretionary limits as to enable this court to say that its imposition must have involved an error
of law of some description? I have had occasion to say elsewhere, that the very concept of judicial discretion involves a right to
choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions
as to which is to be preferred. That is quite inevitable. Human nature being what it is, different judges applying the same principles
at the same time in the same country to similar facts may sometimes reach different conclusions (see Jamieson v. Jamieson ([1952] AC 525)). It is for that reason that some very conscientious judges have thought it their duty to visit particular
crimes with exemplary sentences; whilst others, equally conscientious, have thought it their duty to view the same crimes
with leniency. Therefore sentences do vary in apparently similar circumstances with the habit of mind of the particular judge.
It is for that reason also that this court has said it again and again it will not normally interfere with sentences, and the possibility
or even the probability, that another court would have imposed a different sentence is not sufficient per se to warrant this court's interference. For a discretionary judgment of this kind to be reversed by this court, it must be shown
to our satisfaction that the learned judge was embarking on some unauthorized or extraneous or irrelevant exercise of discretion.”
learned counsel for the Appellant and DPP, the e of RM5,000.00 as not very excessive in the
circumstances of the case for the following reasons:
The Appellant is a police officer and it would be unbecoming for any law enforcer to conduct the way he did going to
the complainant’s shop and publicly criminally intimidating the complainant for the purpose of causing him to withdraw
another case lodged against the Appellant’s son. The Appellant started to stalk the complainant and only left after
the Police called by the complainant told him to leave. (See first paragraph to middle of page 120 ROA) The Appellant had defended
his wrongful act in Court by a mere denial that the incident took place and there is no contrition from him at all.
Even though learned counsel for the Appellant had in mitigation put forward his unblemished record for 30 years as a police officer,
this must have been taken into consideration by the learned Magistrate by not imposing a jail sentence against the Appellant
which this Court would have ordered under the circumstances. There is no error in law in the sentence passed by the
learned Magistrate for this Court to interfere. Ground 2 (a) and (b) is not made out.
5. Conclusion
The Appellant’s appeal against conviction and sentence is dismissed.
Judicial Commissioner High Court Bintulu Dated: 7.3.2011
Counsel:
For the Appellant: Mr. Ranbir Singh Sangha
Messrs Ranbir. S Sangha Advocates
Miri, Sarawak.
For the Respondent: DPP Tuan Hairun Najmi Bin Mashahadi
Deputy Public Prosecutor
Bintulu.
] [Hide Context]
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