High Court of Sabah and Sarawak

Grounds 2 a, c, and d.

The appellant contends the learned sessions judge had erred in finding

a prima facie case against the appellant despite material discrepancies

of the evidence.

Learned counsel for the appellant had contended that because the

appellant was unrepresented, and the fact that he repeatedly informed

the sessions court that he knew nothing of this case and did not know

what to say casts an extra duty on the court to ensure that the

appellant had a fair trial. It was further submitted that the learned

sessions judge had failed to conduct a maximum evaluation of

evidence at the close of prosecution’s case because of the following

discrepancies in the evidence:-

(a) Date and Time of photographs

Looking at the date and time of the photograph, it will appear to the

court the explanation given by learned DPP that the intitulement of the

photos purportedly taken at the exact time of the incident does not in

any way detract from the evidence of PW2, PW3 and PW4 in regard to

grounds of decision to fault the conduct of the trial of the appellant

before the learned sessions judge.

Grounds 2 b.

The appellant contends that the failure to call the 6 passengers of

PW4, should result in adverse inference being drawn by the sessions

court against the prosecution under section 114(g) of the Evidence Act.

The prosecution contends that this immaterial.

On the drawing of adverse inference for the prosecution’s failure to call

the 6 passengers, the court notes that it is the prosecution’s discretion

to decide who to call as witness so long as he discharges his duty to

make out a prima facie case.

In Chia Leong Foo v PP (2000) 4 CLJ 649, Augustine Paul J at page

“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

and discredit the eye witnesses evidence to PW2, PW3 and PW4 that

it was the appellant that was at the scene of crime.

In other words even if the 6 passengers were to give evidence, it will

only for identifying the appellant at the scene and not as to the fact of

the other ingredients of the offence of gang robbery which will be from

PW2 and PW3.

Grounds 2 e and h.

Learned counsel for the appellant challenges the validity of the

identification parade conducted by the police. The prosecution pointed

it out that the appellant was identified at the dock before the court by

PW2.

The prosecution had referred to the case of Ong Poh Cheng v. PP

(1998) 4 CLJ 1 regarding the same issue of dock identification which

held:

The court agrees that even if the identification parade was defective

nevertheless the victims of the crime PW2 (at line 1 of page 22 ROA

and line 25 page 18 ROA) and PW3 (at line 20 of page 30 ROA) had

identified and proved to the satisfaction of the learned sessions judge

that the appellant was the perpetrator of the crime and accepted it as

such.

Ground 2 f and g.

Learned counsel for the appellant because the appellant was

unrepresented was not the appraised of the 3 options available by the

court to the appellant after defence was called and the consequences

thereof.

Ground 2 g on the failure to explain the consequences of the mitigation

plea thereby occasioning a miscarriage of justice was withdrawn by

learned counsel for the appellant.

The court notes that the appellant had advanced the defence of total

denial and as such thereafter he continued his defence to deny and

maintain no knowledge of the incident. When we read NOP at page 44

from lines 6 – 23, the accused had finally said “saya sudah cuba tapi

tidak tahu apa lagi yang saya mahu jawab (I try but I don’t know what

else to answer)” meaning the sessions court had properly explained

and discharged its duty in explaining the three options available to the

appellant but nonetheless he chose not to give evidence voluntarily at

all and closed his defence.

Ground 2 i.

Learned counsel contends that exhibits tendered were not read or

explained to the appellant.

The prosecution had pointed out the exhibits were the photographs an

identification report and other documents which are inconsequential.

The court agrees that even without these exhibits the identification of

the appellant as the perpetrator of the crime were through the oral

evidence of PW2 and PW3 which remained unrebutted and which

identification of the appellant was supported by the evidence of PW4.

Conclusion

The court having considered the grounds in the petition of appeal and

hearing the submissions by the learned counsel for the appellant and

the prosecution would dismiss this appeal.