PP V JORDAN ISKANDAR (R) PDF

CASE NO: SC-62J-10-2010-I/III
Public Prosecutor v Jordan Iskandar Bin Shamsudin

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IN THE SESSIONS COURT III AT KUCHING 10
IN THE STATE OF SARAWAK, MALAYSIA
BETWEEN
PUBLIC PROSECUTOR ... COMPLAINANT
AND
JORDAN ISKANDAR BIN SHAMSUDIN ACCUSED

RULING AT THE CLOSE OF THE CASE OF THE PROSECUTION
In this case, the prosecution has called 5 witnesses to testify in this case. At
the close of the case of the prosecution, the prosecution is required to proof a 20
prima facie case against the accused. The proof of a prima facie case under s.180
of the Act is succinctly explained in PP v Ong Cheng Heong (1998)6 MLJ 678 by
Vincent Ng J at p 691 that:
'Prima facie' means on the face of it or at first glance. To me, in the light of Act
A979,....definition of a 'prima facie case' could be found in the Oxford Companion of
Law (p 987), which has it as : 'A case which is sufficient to call for an answer. While
prima facie evidence which is sufficient to establish a fact in the absence of any
evidence to the contrary, but is not conclusive."

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The Charge: 10
Bahawa kamu, bersama seorang lagi rakan kamu yang masih bebas, pada 20
haribulan Februari 2010, jam lebih kurang 6.00 petang bertempat di hadapan
Parkson Grand Shopping Complex, Jln Tunku Abdul Rahman, Kucihng, di
dalam Daerah Kuching, di dalam Negeri Sarawak dengan niat bersama telah
melakukan rompakan terhadap harta milik Angela Mariana Buayah (P) 21
tahun 3 bulan, KPT:881105-52-5296 iaitu satu buah beg tangan wanita warna
hitam mengandungi:
1. 1 salinan kad pengenalan milik pengadu;
2. 1 keping wang kertas Ringgit Malaysia RM5
3. Matawang Indonesia Rp.50,000 dan sekeping Rp.1000 20
4. 1 unit telefon bimbit jenis Nokia model 1650 bersama sim kad 010-
9770113
5. 1 utas gelang Stainless Steel (milik suami pengadu)
6. 1 beg bimbit jenama Louis Vuitton
Dengan cara meragut dari bahu kanan penama berharga lebih kurang
RM300.00.Oleh itu kamu telah melakukan kesalahan di bawah seksyen 395
Kanun Keseksaan dan dibaca bersama seksyen 34 kanun yang sama.

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Defective Charge 10
The offence under section 395 of the Penal Code has been given a specific
name, namely, gang-robbery. If the offence created by a law attributes a specific
name to it, then it is imperative that the offence should be described in the charge
only by that name. The definition of gang-robbery clearly defined under s.391 P.C.
391. Gang-robbery.
When two or more persons conjointly commit or attempt to commit a robbery, or where the whole
number of persons conjointly committing or attempting to commit a robbery, and of persons
present and aiding such commission or attempt, amount to two or more, every person so
committing, attempting, or aiding, is said to commit "gang-robbery".
According to Ratanlal at pg. 2210, the word conjointly is the most important 20
word bearing on the liability of persons accused of an offence of dacoity (gang robbery).
While it may be true to say that common intention is no part of the offence of dacoity, the
word conjointly used in this section, manifestly refers to united or concerted action of the
persons participating in the transaction. If individual acts of persons cannot reasonably be
referred to a united or concerted action of such persons, there cannot be any question of any
conviction of dacoity (gang robbery) of the group of persons concerned.
Item 10 in Form 27 (sections 152 and 154) of the Criminal Procedure Code
formulated a charge for an offence punishable under section 395 of the Penal Code
as follows:-
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That you, on or about the . day of .. , at committed gang-robbery, an 10
offence punishable under section 395 of the Penal Code.
Translated into Bahasa Malaysia, the charge would be as follows:-
Bahawa kamu, pada atau lebih kurang .. haribulan . di . melakukan rompakan
berkumpulan, suatu kesalahan yang boleh dihukum di bawah seksyen 395 Kanun
Keseksaan.
However, in the instant case the prosecution has ommitted to insert the word
rompakan berkumpulan in their instant charge. Hence, the charge as framed by
the prosecution in the instant case is defective as it fails to adhere to the specific
name or description given in the Penal Code. Every charge under the Criminal
Procedure Code must state the offence with which the accused is charged. If the law 20
which creates the offence gives it any specific name the offence may be described
in the charge by that name only.
See: Halsburys Law of Malaysia, Vol. 18, page 312.
In the case of Public Prosecutor v Lee Pak (1937)MLJ 265, Whitley Ag
CJ. held that:
A charge should be so drawn that the accused should know exactly the case which
he has to meet and that he should not be left guessing as to which of a number of
alternatives he is alleged to have offend against. If a charge is so badly framed that
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the accused is misled thereby, an appellate court will have no hesitation in quashing a 10
conviction based on such a charge.

In Low Seng Wah v Public Prosecutor [1962] MLJ 107, Neal J made the
following observation:-
It seems to me that all that has been said is that if the prosecution elect to depart
from the wording of the offence as set out by the legislature they create difficulties
for themselves which may not be cured even with the assistance of the provisions of
the CPC and, in particular, section 156 thereof.

Clearly, the charge as framed by the prosecution in this case discloses no 20
offence known to law. This is because the offence is not described as rompakan
berkumpulan (gang-robbery) but rather as dengan niat bersama telah melakukan
rompakan in the charge-sheet, which is clearly a grave error.
It has been held by Ho Mooi Ching, JC in the recent case of Teh Boon
Long v Pendakwa Raya [2009] 4 AMR 461, 446 that:-
As in the case of Shawal Hj. Mohd. Yassin v Public Prosecutor [2006] 6 CLJ 392, I
do not think that section 156 of the CPC can be invoked in a situation where the
charge is defective as disclosing no offence under the relevant law. This is not in the
way of a technical defect that can be remedied by section 422 of the CPC.
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Following the case of C. Mohammad v Public Prosecutor [1974] 1 MLJ 25, I have no 10
alternative but to hold that the conviction was a nullity, and quash both conviction
and sentence under the second charge.

In Shawal Hj. Mohd. Yassin v Public Prosecutor [2006] 4 MLJ 334 at
para 17, Azahar Mohamed JC concluded that a retrial could not be ordered where the
charge preferred against the accused disclosed no offence in law and therefore rendering the
proceedings in the court below a nullity.

See also: Chong Chee Pak v Public Prosecutor [1948-49} MLJ Supp. 45
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It is crystal clear that charge does not adhere to the specific names or
descriptions given in the Penal Code and the Criminal Procedure Code. As such, the
charge preferred against the accused disclosed no offence in law.
In PP v Syed Bakri (1955) MLJ xvii, Thomson J. held that:
I have repeatedly emphasized that in framing charges, prosecuting officers should
adhere as closely as possible to the wording of the statute constituting the offence
which is charged, and that magistrates should be at pains to see that this is done. If it
is done, the prosecution know what what they have to prove and the accused person
knows what is charged against him. If it is done, then there is the danger of a muddle
of the sort that has come to light in this case. 30
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Furthermore, the defects adumbrated above cannot be cured by section 422 of 10
the Criminal Procedure Code. Therefore, based on the above factor alone, an order
of dischagre and acquittal should be made against the accused.

INGREDIENTS OF CHARGE : s.395 PC
(1) That there were two or more persons jointly concerned in the crime;
(2) That the one or more of them committed or attempted to commit robbery;
(3) That those who did not join in committing or attempting to commit robbery,
were present and aiding such commission or attempt.
(4) In furtherance to common intention.
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That there were two or more persons jointly concerned in the crime.
To constitute a gang robbery, there must be at least 2 persons who took part
in the robbery. This is stipulated by section 391 of the Penal Code.
PW1 in her evidence testified that in her report P8, she stated that there was
only one man snatched her hand bag , P1, which contained exhibit P2 wallet, P3
one hand phone, P4 photocopy IC, P5(a) Indonesian currency Rp 50,000.00,
Rp1000(P5b), P6 RM6.00 , steel bracelet (P7).
Even in the cross-examiantion, she said as follows:
Q: Agree/ it was searing lelaki as in the report?
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A: Yes 10
Q: Or you are not sure how many lelaki ?
A: Not sure.

PW2 in her evidence said that the snatcher was wearing a full face helmet
and she cannot see the face of the snatcher. She said she cannot recognize and
identify the snatcher.
In the light of the above, the prosecution has failed to adduce credible
evidence to prove the real identity of the person(s) who were really involved in the
crime. In the circumstances, the charge of robbery brought by the prosecution
against the accused cannot be sustained and in fact the charge by itself already 20
defective.
In the instant case, the report which was lodged by PW1 (first information
report) which was reported at a first reasoanble opportunity, said that one man had
snatched her handbag and the snatchers identity was never confirmed either by
PW1 and PW2 to be the accused. The charge for robbery in the instant case is
clearly fatal and defective when the main prosecution witnesses did not confirm it
was the accused who has committed the offence.
In the cross-examinaiton, PW1 initially disagreed that while lodging the
report the accused was brought in the police station. However, when further cross-
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examined, she said she was shown with the hand bag and she confirmed the said 10
hand bag as belonged to her.
PW2 in her evidence said that, while at the police station, the police showed
to PW1 the hand bag. PW2 confirmed that the incident had occured at 6.00p.m. and
the report was lodged at 6.10p.m. At this juncture, PW2 could not confirm whether
by this time whether the police had showed to her the said hand bag though she
does not deny the hand bag was shown to her while at the police station.
From exhibit-P10 (the police report lodged by PW3), PW3 said the incident
happened on 20.2.2010 at 0610 p.m. but at 0610 pm, both PW1 and PW2 were
already at the Padungan police station. PW4 confirmed that according to the report
that it was lodged at 6.10 pm. If the incident really occured according to PW3, i.e. 20
at 0610 pm. it had already passed the twilight zone timings. i.e. 0600 pm.
In P.P v Lee Eng Kooi(1993)2 CLJ 534, Vincent Ng Kim Khoay, JC, held
that:
"(5) If in a case the prosecution leads two sets of evidence, each one which
contradicts and strikes as 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....."

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During cross examination PW3 said the snatching was executed 10
simultaneously by two criminals whilst riding on the motorcycle. In the cross-
examination, PW3 answered as follows:
Agree/it is on a public road.
A: Yes
Agree/the story goes like this. The snatcher and the rider on the move snatch
the hand bag.
A: Yes
Agree/after the snatcher snatched, he will speed up as fast as possible.
- Yes
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This story was completely different from what PW1 and PW3 had said. The
prosecution never re-examined on this material contradiction and different version
produced by PW3. This different version had obviously created doubt on the
prosecution case.
Justice RK Nathan in PP v Mansur Bin Yahya (2004) 2 MLJ 512 held at
page 512:
Where there is a conflict of evidence in the prosecutions case itself, and in this case a very
material conflict, the benefit of the doubt must be given to the accused.

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In the cross-examination, PW3 said as follows: 10
Q: According to you the incident, it happened at 6.10 pm. How long it took
you to chase him until you managed to get him until Tabuan roundabout?
A: I could not remember.

He said after he managed to block the motorcycle, the accused was assaulted
by the public. However, what would wonder me that never being clearly explained
by PW3, how could be the civilians reacted so fast when not knowing the situation
and why should they be bothered since the arrest happened in different place ie. at
Tabuan round about (judicial notice taken by me as to the distance between Parkson
Grand area and Tabuan round about) and did not know that the accused was a 20
snatcher who deserved to be assaulted before surrendering to the police.
It is my view that the civilians only assault or may assault the snatcher if they
knew or heard the incident had happened within their sight or within the vicinity.
But PW3 also could not describe the incident and fact of the case.
That was the reason the time of incident purportedly to have happened were
completely different sets only to show the different versions of PW1, PW2 and
PW3 testimonies.

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In Moshidi Bin Marzuki v PP (1996) MLJU 476, Muhammad Kamil J 10
(Per Curiam) said:
Counsel for the prosecution should always remember that in a criminal trial , it is of
utmost importance that the facts of the case are not only correct but must be
accurate. The prosecutor as it were, should marshal the fact of his case, as in the
instant case the subject matter had not been sufficiently identified, and there are
gaps in the chain of evidence. It will be an exercise in futility that the prosecution
should doggardly soldier on to fight in an otherwise useless case.

PW3 mentioned that the accused was wearing full face helmet. However, the
said helmet was never shown. PW3 also mentioned there were broken pieces of the 20
helmet but looking at exhibit P9, it was not broken.
However, when he was cross-examined, he said as follows:
Q: You said there a broken pieces of helmet. Which broken pieces?
A: It was not actually broken

PW4 who is the officer-in-charge of Padungan Police station said that there
were such two instances through his experience in Padungan, Kuching when the
case involving snatching happened in his areas i.e. one will wait at the stationery
motorcycle whilst the other one snatched and ran towards the in waiting motor
cycle and speed up whereas as the other instance is whilst on the move riding a 30
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motorcycle, a driver will drive whereas the pillion rider will snatch the victim 10
simultaneously and speed up. And according to him, if such incident happened, the
snatcher will speed up and run way without leaving any trail for any people to
pursue.
However, PW3 could not explain the situation as to the time and space if it is
true he was really chasing after the snatchers. He did not see from which direction
he stopped his car at the traffic light when he purportedly happened to see the
incident. According to P10, his friends suddenly appeared to hold the accused and
they surrendered the same to the Police station.
In the report, PW3 did mention about his friend named Ah Chui and Ah Chui
was with PW3 when reporting to the police. He also mentioned about the person as 20
Affendy in P10 of whom according to PW1 was her husband and an employee of
Ah Chui who was a friend of PW3.
In the instant case, the prosecution had never called Affendy and Ah Chui
in order to clear the doubt in this case especially when the Defence at the earliest
mean opportunity and mean possible.
The prosecution is withholding evidence wherein Affendy who was the
husband of PW1 and Ah Chui who was the employer of Affendy and friend of
PW3 were never called to testify in order to unfold the true narration of the
prosecution story.
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It is in evidence according to P10 and PW3 , that Affendy and Ah Chui were 10
present during the incident justifying or making the story of the defence more
favourable cogent and credible.
Thus, has invited this court to invoke s.114(g) Evidence Act 1950 since they
were never called by the prosecution though they were allegedly present in the
same room.
In Munusamy v P.P(1987) 1 MLJ 492, Supreme Court held that:
..Adverse inference under that illustration can only be drawn if there is
withholding or suppression of evidence and not merely on account of failure to
obtain evidence. It may be drawn from withholding not just any document, but a
material document by a party in his possession, nor for non-production of just any 20
witness but only an important and material witness to the case;

The prosecution evidence was full of uncertainties and lot of material
discrepancies. In Sia Soon Suan v PP (1966) 1 MLJ 116 , His Lordship Ong
Hock Thye CJ(Malaya) delivering the judgment of the Federal Court at p 118
said:
Nevertheless, the requirement of strict proof in a criminal case cannot be
relaxed to bridge any material gap in the prosecution evidence. Irrespective of
whether this court is otherwise convinced in its own mind of the guilt or
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innocence of the accused, its decision must be based on the evidence adduced 10
and nothing less. This is axiomatic.

In PP v Jamal Bin Samad & Anor.(2006) MLJU 167, YA Justice David
Wong Dak Wah in respect of Lim Guan eng v PP (1998) 3 CLJ 7, Gopal Ram
JCA said:
Now, among the general rules that govern judicial appreciation of evidence in both
civil and criminal causes in the adversarial system of justice there is one of the
fundamental important, it is that a party is bound by the evidence of witness whom
he calls in proof of this case. The rule was full rigour in civil cases, See Rahnavale V
S Lourdenian 20
In PP v Zakaria Bin Said & Anor Criminal Trial No: 42-3-2008-
III(SG), Ravinthran N. Paramaguru JC, agreed with the decision of the
Learned Session Court Judge and set aside the appeal against the order of acquittal
and the court inter alia, agreed that the party who bring their in witnesses are
bound to vouch for them.
In this instant case, PW5, Insp Joslin completely did not provide for any form
of investigation in respect of the statement under section 112 CPC by the accused
when it was first given at the earliest opportunity.
In this case, PW5 said he did investigate the statement given under section
112 CPC and the rebuttals/police report lodged by the accused notwithstanding it 30
was put to him at the earliest mean possible.
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The evidence of PW5 that just because the police report lodged by the 10
accused was handed to another IO and shall take no further action there from, in my
view, reflect or shall depict a sad day for justice in the investigation of criminal
justice system.
In Pang Chee Meng v PP(1992) 1 MLJ 137, the court specially directed his
mind to the notes of evidence which clearly show that :
a. First prosecution witness, Insp Kamaruddin bin Hj. Abdul Rahman, admitted in
evidence(P11) when he said: I agreed there was a different between my earlier and
now.
I am not sure whether the room was occupied by more than one person taking into
consideration there were two cup boards and various clothings. 20
b. PW5 Insp Baharuddin bin Mohd Nordin stated: I was aware of the two males
named Ah Seng and Ah Fatt on my first visit to 13F
I did not take fingerprints in the room to determine the existence of Ah Seng and
Ah Fatt. I agree that if I have carried finger prints dusting, I would be able to
determine the people in the room. I did not ask for description of Ah Seng and Ah
Fatt from sister of the accused or other person.
The court held these scattered pieces of evidence create lurking doubt in our mind on
the thoroughness of the police investigation. In this case, the accused denied he led
the police to the discovery of the drugs.
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The Defence is entitled at the earliest mean possible to submit their line of 10
defence in order to pray that no prima facie is to be made out against the accused as
enunciated in the case of PP V Lin Lian Chen (1992) 2 MLJ 561, it was held in
that case that an accused person had every right to advance his defence at the earliest
possible stage, without waiting for defence to be called.

Common intention: S.34
The prosecution had also failed to prove this ingredient as to whether the
accused had a pre-arranged plan to commit the offence. The prosecution must
provide:
(1) there was common intention on the part of the accused to commit the 20
offence
(2) the crime was actually committed by them in furtherance of common
intention.
In Juraimi Bin Husin v PP(1998) 1 MLJ 537, the court held at page 152,
The law governing liability under section 34 of the Penal Code was explained by
Hashim Yeop A. Sani (Later CJ(Malaya) in DATO MOKTHAR HASIMs case
as follows:-
Under section 34 of the Penal Code, to succeed the prosecution must prove
that the criminal act was done in concert pursuant to the pre-arranged plan
or arrangement. In practice, it is of course difficult to produce direct evidence 30
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to prove intention of an individual, however, it can be inferred from his act or 10
conduct or other relevant circumstances.

However, in our instant there obvious conflicting evidence between the
prosecution witnesses which produced infirmity and gap in the prosecution case.
In Lee Yoon Choy v P.P (1948-49) MLJ Supp 167, Court of Appeal,
Kuala Lumpur held that:
" the law of common intention in this country is defined in S.34 of the Penal Code
and under the terms of that section, there must exist a common intention to commit
the crime actually committed, and it is not sufficient that there should be merely a
common intention to behave criminally. To invoke the aid of S.34 successfully, it 20
must be shown that the criminal act complained against was done by one of the
accused in the furtherance of the common intention of all."

In fact the evidence produced before this court is in fact full of contradiction
and not sustainable. Not even a piece of evidence from the prosecution's witnesses
can relate the accused to have committed the alleged offence. In this case, from P8
(FIR), it was alleged that one man who had snatched her handbag and never it was
alleged the accused. The evidence of PW1, PW2 and PW3 were flawless.
See: R v VINCENT BANKA (1936) 5 MLJ 66.
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In Moshidi Bin Marzuki v PP (1996) MLJU 476, Muhammad Kamil J 10
(Per Curiam) said:
Counsel for the prosecution should always remember that in a criminal trial , it is
of utmost importance that the facts of the case are not only correct but must be
accurate. The prosecutor as it were, should marshal the fact of his case, as in the
instant case the subject matter had not been sufficiently identified, and there are
gaps in the chain of evidence. It will be an exercise in futility that the prosecution
should doggardly soldier on to fight in an otherwise useless case.
.
In PP V CHE SAUFI BIN KADIR(2005) 6 MLJ page 161, VT Singham
J. said: 20
On the totality of the evidence which included material gaps and flaws in the
prosecution case, it was not safe to call for the defence for the accused to supplement
the weak evidence produced by the prosecution. It was a safe risk to acquit than to
condemn the accused as guilty.

Conclusion
Having heard the evidence adduced by the prosecution witnesses and the
cross-examination as raised by the Defence, I am satisfied that the prosecution has
failed to prove a prima facie case against the accused. In the circumstances, I
hereby ordered that the accused to be dicharged and acquitted without calling for 30
his defence .
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I hereby order so. 10

Sgd. Nixon Kennedy Kumbong
Judge
Sessions Court III Kuching

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PO : ASP Clemund Sim
Counsel : Mr.Ossman Ibrahim
Messrs.Osman Ibrahim & Co.Adv

F/Kuching/Criminal/Robbery/PP v Jordan Iskandar Bin Shamsudin (2010)
4,145 words

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CASE NO: SC-62J-10-2010-I/III

Public Prosecutor v Jordan Iskandar Bin Shamsudin

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