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[2014] 7 CLJ 723

PP v. ZAINAL ABIDIN MAIDIN & ANOR

PUBLIC PROSECUTOR ... APPELLANT


AGAINST
1) ZAINAL ABIDIN MAIDIN ... RESPONDENT
2) MOHD RIDZUAN ZAINAL
HIGH COURT MALAYA, SHAH ALAM
COLLIN LAWRENCE SEQUERAH JC
[CRIMINAL APPEAL NO: 41LB-202-08-2013]
12 AUGUST 2014

CRIMINAL LAW: Penal Code - Section 427 - Charge for committing mischief - Whether
prosecution established prima facie case - Whether evidence of prosecution witnesses' credible

CRIMINAL PROCEDURE: Appeal - Acquittal at close of prosecution case - Whether analysis and
findings of Magistrate correct - Whether prosecution established prima facie case - Whether
contradictions and inconsistencies in evidence of prosecution witnesses' prejudiced prosecution's
case - Penal Code, s. 427

EVIDENCE: Witness - Credibility - Contradictions and inconsistencies in evidence of prosecution


witnesses' - Whether evidence credible - Whether credibility of prosecution witnesses affected
The respondents were jointly charged with committing mischief under s. 427 of the Penal Code. A
Myvi car, driven by the first respondent, had overtaken the complainant's ('SP2') car causing the front
part of SP2's car to be grazed by the Myvi. The first respondent got out of his car and in an angry
manner began to hurl insults at SP2. The second respondent subsequently alighted from the Myvi and
proceeded to hit the windscreen and the boot of SP2's vehicle. The first respondent allegedly took out
a steering lock from the Myvi and proceeded in the direction of SP2. SP2, fearing the worst for
himself and his wife, SP1, who was in the car, got into his car and drove away. However, the
respondents tailed SP2's car and subsequently at a parking lot proceeded to kick and hit SP2's
vehicle. At the end of the prosecution case, the Magistrate held that a prima facie case was not made
out by the prosecution and acquitted and discharged the respondents without calling for their defence.
Hence, the prosecution appealed.

Held (dismissing appeal; affirming Magistrate's decision):

(1) Both SP1 and SP2 were present at the scene of the incident and were eyewitnesses of what had
transpired. Yet, their evidence contradicted each other on the simplest of matters. Their evidence in
respect of which part of SP2's vehicle was damaged was at variance with each other. (para 25)
(2) Although there was mention as to the steering lock in SP2's police report, it was never stated
therein that it was used to hit SP2's car. The oral testimony of SP1 and SP2 also failed to inspire
confidence when SP1 said that it was used to hit the car although she was not sure how it happened
while SP2 said she did not see it being used to hit the car. When coupled with the fact that SP2's car
was not impounded, the evidence of the prosecution suffered from infirmities that could not be
dismissed as mere trivialities. (paras 28 & 29)

(3) The evidence of SP1 and SP2 and the absence of a traffic police report lodged in respect of the
accident when considered against the reports lodged by the respondents and further, the adjuster's
report in respect of the damage caused to the vehicle of the respondents, leaned towards the
conclusion that the evidence of SP1 and SP2 in totality may not be altogether credible. (para 30)

(4) Taken in isolation, the contradictions in the evidence of SP1 and SP2 of itself may not amount to
much but when viewed in totality with the rest of the infirmities in the prosecution's case, they
assume more significance. The infirmities directly go to the credibility of both SP1 and SP2 as
prosecution witnesses. (para 46)

(5) There was no flaw in the analysis, findings and conclusion of the learned Magistrate that the very
ingredients of the charge were not proved so that the prosecution had failed to make out a prima
facie case against the respondents. The Magistrate had outlined the ingredients of the offence under s.
427 of the Penal Code and had carefully sifted through the evidence presented by the prosecution,
especially the fact that there were contradictions and inconsistencies between SP1 and SP2 and
reasoned that the contradictions and inconsistencies did not stand up to scrutiny in the light of the
maximum evaluation test. (paras 51-53)

Case(s) referred to:

Arulpragasan Sandaraju v. PP [1996] 4 CLJ 597 FC (refd)

Balachandran v. PP [2005] 1 CLJ 85 FC (refd)

Kyros International Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2013] 3 CLJ 813 CA (refd)

Lim Ah Poh v. PP [1992] 1 SLR 713 (refd)

Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734 CA (refd)

Magendran Mohan v. PP [2011] 1 CLJ 805 FC (refd)

Pie Chin v. PP [1983] 1 LNS 70 HC (refd)

PP v. Dato Seri Anwar Ibrahim (No 3) [1999] 2 CLJ 215 HC (refd)


PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457 FC (refd)

PP v. Saimin & Ors [1971] 1 LNS 115 HC (refd)

Legislation referred to:

Criminal Procedure Code, s. 180(1)

Penal Code, ss. 426, 427

Other source(s) referred to:

Ratanlal & Dhirajlal's Law of Crimes , 27th edn, vol 2, p 2763

Counsel:

For the prosecution - Izalina Abdullah; DPP

For the respondent - Shahrul Nizam; Chamber of Shahrul Nizam

Reported by S Barathi

JUDGMENT

Collin Lawrence Sequerah JC:

[1] This is an appeal from the Magistrate's Court at Selayang where the respondents were jointly
charged with committing mischief under s. 427 of the Penal Code. At the end of the prosecution case,
the Magistrate held that a prima facie case was not made out by the prosecution and acquitted and
discharged the respondents without calling for their defence.

The Charge

[2] The charge against the respondents in Bahasa Malaysia read as follows:

Bahawa kamu bersama-sama pada 23/4/2012 lebih kurang jam 1830 hrs di Jalan Rawang-Batu Arang
berhadapan Sekolah Kebangsaan Sinaran Budi Rawang dalam daerah Gombak, di dalam Negeri
Selangor Darul Ehsan telah melakukan khianat dengan menumbuk dan menendang motokar no WLR
1526. Jenis : Anggaran kerugian lebih kurang RM1000.00 milik Mohd Khir bin Hj Rashid KP:
RF11175. Oleh yang demikian kamu telah melakukan kesalahan yang boleh dihukum di
bawah seksyen 427 Kanun Keseksaan dibaca bersama seksyen 34 Kanun yang sama.

[3] A conviction under s. 427 carries a punishment of imprisonment for a term which may extend to
two years, or with fine or with both.

Facts

[4] The brief facts of the case as adduced by the prosecution witnesses were as follows. On the 23
April 2014 a Myvi car driven by the first respondent bearing registration number WWE 7945
overtook the complainant's (SP2) car on the left side.

[5] As a result, the Myvi had grazed against the front part of the SP2's car. The driver of the Myvi,
the first respondent, got out of his car and in an angry manner began to hurl insults at SP2.
Subsequently, the second respondent also alighted from the Myvi and proceeded to hit the
windscreen and the boot of SP2's motor vehicle.

[6] The first respondent then took out a steering lock from the Myvi and proceeded in the direction of
SP2. SP2, fearing the worst to himself and his wife SP1, who was in the car at the time, got into his
car and drove away.

[7] The respondents tailed SP2's car until the parking lot at AEON Jusco Rawang. They then alighted
and proceeded to kick and hit SP2's motor vehicle.

Grounds Of Appeal

[8] In the petition of appeal filed by the public prosecutor four grounds are raised, namely:

(a) The Magistrate erred in finding that the appellant had failed to establish a 'prima facie ' case
against the respondent at the end of the prosecution case when the evidence showed otherwise;

(b) The Magistrate erred in holding that the prosecution had failed to establish a 'prima facie ' case on
the basis that the photographer only took photographs of exh. P1(a) to (g), pictures showing damage
to the car only a day after the incident whereas such an issue was not material enough to prejudice the
prosecution case;

(c) The Magistrate erred in holding that the prosecution had failed to establish a 'prima facie ' case on
the basis that there were contradictions between the evidence of SP1 and SP2 in respect of the
identification of the damage to the motor vehicle from the photographs taken, whereas the
contradictions were not material.

(d) The Magistrate erred in taking into account issues that were not material in deciding that the
prosecution had failed to establish a 'prima facie ' case.
Issues For Consideration

[9] A perusal of the grounds of appeal would clearly indicate that there are only two main issues for
consideration. Firstly, did the fact that the photographs showing the damage caused to SP2's motor
vehicle were only taken a day after the incident materially prejudice the prosecution case?

[10] Secondly, are the contradictions between the evidence of SP1 and SP2 in respect of the
identification of the damage to the motor vehicle from the photographs taken, material?

Photographs Of Motor Vehicle Taken A Day After The Incident

[11] In the course of submission, learned counsel for the respondents raised the issue of a break in the
chain of evidence. SP3, the investigating officer (IO) testified that he only requested SP4, the
photographer, to take the photographs of SP2's vehicle the following day after the incident.

[12] Under cross-examination, SP4 testified that the IO had only called him on the day the
photographs were taken. SP4 further testified that there were two photographers at that police station
and according to the duty rooster, if one was on duty the other was not. The respondent's questioned
as to why, if one photographer was unavailable that day, the other was not called.

[13] It was also put in cross-examination to SP3 that he could have taken the photographs using his
handphone before calling the photographer, to which he replied that his handphone had no camera.
SP3 gave no oral evidence that he had made any observation that SP2's car was indeed damaged at
the time he inspected it. The respondent's learned counsel further raised the issue of causation, ie,
whether or not it was the respondents who had caused the damage to SP2's car. Taken in isolation,
perhaps nothing much can be made of the mere failure to take photographs of SP2's car on the very
day of the incident at the police station.

[14] However, this must be evaluated against the totality of the other evidence available, most
notably, as will be considered later on, that of the contradictions between SP2 and SP3 in respect of
identifying the precise location of the damage to SP2's vehicle from the photographs taken, exh.
P1(a) to (g).

[15] The respondents also questioned as to why, if the photographs were not able to be taken on the
day of the incident, SP2's car was not impounded until photographs were taken. Instead, SP2 was
allowed to drive his vehicle home until the next day. Although it was not directly suggested that SP2
may have inflicted the damage to his car himself, it was in cross-examination put to him that it was
not the respondent's that had inflicted the damage.

[16] It was further suggested to SP2 in cross-examination that the second respondents had merely
tapped the bonnet of his car to get his attention in order for him to stop his car.

Contradictions Between SP1 And SP2

[17] The contradictions between SP1 and SP2 arise mainly from their identification from the
photographs taken of SP2's car, exh. P1(a) to (g), in respect of the location of the damage to the car.
SP1, when shown P1(g) said that she was unsure what part of SP2's car is shown because it is
unclear, although this is not strictly a contradiction. SP2 says that photograph P1(g) is the dent of the
front part of his car which was hit by the second respondent.

[18] In respect of photograph P1(d), SP1 testified that this shows the back door on the driver's side
(right side) that was kicked by the second respondent while SP2 testified that it was the front door on
the left side of the car.

[19] In respect of photograph P1(e), SP1 testified that it showed the left front door that was kicked by
the second respondent whereas SP2 said this was the right front door that was kicked by the second
respondent.

[20] SP1 also testified that the first respondent swung a steering lock and hit SP2's car although she
was not sure how exactly it happened. SP2 on the other hand, said that he did not see the first
respondent hit his car with a steering lock, although he was sure it had happened.

[21] In SP2's police report, P8, while he makes mention of the steering lock, does not state whether
the steering lock was used to hit his car.

Other Issues

Police Report Lodged By The Respondents

[22] There were as a result of the incident, police reports lodged by the respondents. The first
respondent made a report on 14 June 2012 and reported the incident that led to the traffic accident
and he also alleged that he felt he was victimised 'teraniaya' by the complainant who was a police
who had made an untrue report. The second respondent lodged two police reports on 24 April 2012
and 27 April 2012 respectively, in respect of both the accident and the alleged incident that followed
and also stated that he felt "teraniaya" by SP2's police report.

[23] SP2 on the other hand, did not lodge a traffic police report. While being cross-examined SP2
stated that this was because the issue of the accident was not important to him compared to the
alleged road bully case involving the damage to his car and the use of the steering lock. He also
alleged that he had met with the traffic investigation officer who had told him that it was not
necessary to lodge a traffic report.

Conflict Of Interest

[24] Learned counsel for the respondents also raised the issue of conflict arising from the fact that
both SP2 and SP3 the IO were serving at the Gombak police station. In cross-examination, SP3
admitted that the complainant, SP2, and he both served at Ibu Pejabat Daerah, IPD Gombak and that
he knew SP2 was also an IO. It was suggested to SP3 in cross-examination that the proper course of
action would have been to request the public prosecutor's office to exclude him from the case. SP3
replied that he had done so but that he was informed to carry on the investigation.
Analysis Of The Issues Raised

[25] As alluded to earlier, when taken in isolation, the matters raised by the respondent's learned
counsel may not amount to much. However, when considered in totality and viewed against all the
circumstances of the case, the issues raised merit serious consideration. It must be remembered that
both SP1 and SP2 were present at the scene of the incident and were eyewitnesses of what had
transpired. Yet their evidence contradicted each other on the simplest of matters. Their evidence in
respect of which part of SP2's vehicle was damaged as seen from the photographs P1(a) to (g) was at
variance with each other.

[26] The learned Deputy Public Prosecutor submits that the contradictions are not material and do not
prejudice the appellant's case. The prosecution submits that what is important is that the witnesses
testified that it was the respondents who caused the damage to SP2's car. It matters not that they
cannot identify which part of the car was damaged from the photographs shown.

[27] To further exacerbate the situation, it was pointed out by learned counsel for the respondents that
the witnesses were not asked to mark on the photographs P1(a) to (g) the exact spot where the
damage was caused.

[28] In respect of the steering lock, although mention of it was made in P8, SP2's police report, it was
never stated therein that it was ever used to hit SP2's car. As stated earlier, the oral testimony of SP1
and SP2 in this regard also fails to inspire confidence, with SP1 saying it was used to hit the car
although she was not sure how it happened while SP2 said he did not see it being used to hit the car.

[29] When coupled with the fact that SP2's car was not impounded, as no photographer was available
that day, the evidence of the prosecution suffers from infirmities that cannot be dismissed as mere
trivialities.

[30] The evidence of SP1 and SP2 and the absence of a traffic police report lodged in respect of the
accident when considered against the reports lodged by the respondents and further the adjusters
report IDD10 in respect of the damage caused to the vehicle of the respondents leans toward the
conclusion that the evidence of SP1 and SP2 in totality may not be altogether credible.

[31] Under 426 of the Penal Code the prosecution must prove the following ingredients:

(i) The accused caused the destruction of some property, or some change in such property or in the
situation thereof;

(ii) That the above act destroyed or diminished the value or utility of such property, or affected it
injuriously;

(iii) That the accused did as in (i) intending or knowing that he was likely to cause loss or damage to
the public or to any person;

(iv) That the causing of such damage on injury was wrongful.


See Ratanlal and Dhirajlal's Law of Crimes 27th edn. vol. 2 p. 2763. Section 426 provides for
enhanced sentence where the loss or damage caused is more than 25 ringgit.

[32] Based on the maximum evaluation test, can the prosecution be said to have made out a prima
facie case in respect of all the ingredients of the offence?

The Test For Prima Facie Case

[33] Section 180(1) of the Criminal Procedure Code (CPC) reads:

When the case for the prosecution is concluded, the court shall consider whether the prosecution has
made out a prima facie case against the accused.

[34] This amendment came into existence vide the Criminal Procedure Code (Amendment) Act 1997
(Act A979). Parliament's intention in enacting this amendment was to reverse the majority of the
Federal Court decision in Arulpragasan Sandaraju v. PP [1996] 4 CLJ 597; [1997] 1 AMR 329. This
intention of Parliament is best expressed in the words of Gopal Sri Ram JCA (as he then was) in Looi
Kow Chai & Anor v. PP [2003] 1 CLJ 734; [2003] 2 AMR 89 at p. 101:

In our judgment Parliament by the phrase "prima facie " case intended to reverse the majority of the
Federal Court in Arulpragasan a/l Sandaraju v. PP [1996] 4 CLJ 597; [1997] 1 AMR 329; [1997] 1
MLJ 1 and to statutorily codify the minority view in that case. The majority view
in Arulpragasan was in the main a criticism directed at the opinion expressed by Lord Diplock
in Haw Tua Tau v. PP [1981] CLJ Rep 11; [1981] 2 MLJ 49. In Haw Tua Tau, Lord Diplock appears
to have equated trials before a judge and jury to trials before a judge sitting alone.

[35] The meaning of the phrase "prima facie " in its current form has been the subject of judicial
pronouncement in a number of cases. In Balachandran v. PP [2005] 1 CLJ 85 the Federal Court
held:

A prima facie case is therefore one that is sufficient for the accused to be called upon to answer. This
in turn means that the evidence adduced must be such that it can be overthrown only by evidence in
rebuttal. The phrase "prima facie case" is defined in similar terms in Mozley and Whiteley's Law
Dictionary, 11th edn, as:

A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently
strong for his opponent to be called on to answer it. A prima facie case, then, is one which is
established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the
other side.

The result is that the force of the evidence adduced must be such that, if unrebutted, it is sufficient to
induce the court to believe in the existence of the facts stated in the charge or to consider its existence
so probable that a prudent man ought to act upon the supposition that those facts exist or did happen.
On the other hand if a prima facie case has not been made out it means that there is no material
evidence which can be believed in the sense as described earlier. In order to make a finding either
way the court must, at the close of the case for the prosecution, undertake a positive evaluation of the
credibility and reliability of all the evidence adduced so as to determine whether the elements of the
offence have been established.

[36] In PP v. Dato Seri Anwar Ibrahim (No 3) [1999] 2 CLJ 215; [1999] 2 AMR 2017; [199] 2 MLJ
1 it was observed:

A prima facie case arises when the evidence in favour of a party is sufficiently strong for the
opposing party to be called on to answer. The evidence adduced must be such that it can be
overthrown only by rebutting evidence by the other side. Taken in its totality, the force of the
evidence must be such that, if unrebutted, it is sufficient to induce the court to believe in the
existence of the facts stated in the charge or to consider its existence so probable that a prudent man
ought to act upon the supposition that those facts existed or did happen. As this exercise cannot be
postponed to the end of the trial, a maximum evaluation of the credibility of witnesses must be done
at the close of the case for the prosecution before the court can rule that a prima facie case has been
made out in order to call for the defence.

[37] In the exercise of the trial court's evaluation of whether a prima facie case has been made out, it
was observed in Looi Kow Chai (supra) as follows:

In our respectful view, the correct test to be applied in determining whether a prima facie case has
been made out under s. 180 of the CPC (and this would apply to a trial under s. 173 of the CPC) is
that as encapsulated in the judgment of Hashim Yeop Sani FJ (as he then was) in Dato' Mokhtar bin
Hashim & Anor v. Public Prosecutor [1983] CLJ Rep 101; [1983] 2 MLJ 232 at p 270:

To summarize, it would therefore appear that having regard to the prosecution evidence adduced so
far, a prima facie case has not been established against Nordin Johan and Aziz Abdullah, the second
accused and the fourth accused which, failing their rebuttal, would warrant their conviction. In other
words if they elect to remain silent now (which I hold they are perfectly entitled to do even though
they are being tried under the Emergency Regulations) the question is can they be convicted of the
offence of section 302 read with section 34 of the Penal Code? My answer to the question is in the
negative.

[38] The foregoing observations in Looi Kow Chai then concludes:

It therefore follows that there is only one exercise that a judge sitting alone under s. 180 of the
CPC has to undertake at the close of the prosecution case. He must subject the prosecution evidence
to maximum evaluation and to ask himself the question: if I decide to call upon the accused to enter
his defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence
contained in the prosecution case? If the answer is in the negative then no prima facie case has been
made out and the accused would be entitled to an acquittal.

[39] In PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457; [2005] 6 AMR 203 the Federal Court
outlined the steps to be taken at the end of the prosecution case:

(i) At the close of the prosecution's case, subject the evidence led by the prosecution in its totality to a
maximum evaluation. Carefully scrutinize the credibility of each of the prosecution witnesses. Take
into account all reasonable inferences that may be drawn from the evidence. If the evidence admits of
two or more inferences, then draw the inference that is most favourable to the accused;

(ii) Ask yourself the question : If I now call upon the accused to make his defence and he elects to
remain silent am I prepared to convict him on the evidence now before me? If the answer to that
question is "Yes", then a prima facie case has been made out and the defence should be called. If the
answer is "No" then, a prima facie case has not been made out and the accused should be acquitted;

(iii) After the defence is called, the accused elects to remain silent, then convict;

(iv) After defence is called, the accused elects to give evidence, then go through the steps set out
in Mat v. PP [1963] 1 LNS 82; [1963] MLJ 263.

[40] A few principles can be culled and summarised from the authorities just cited. Taken in its
totality, the prosecution evidence must be subjected to maximum evaluation. This means, inter alia,
subjecting to scrutiny the credibility of the prosecution witnesses. As of necessity, this would mean
that their evidence is not to be taken at face value and must therefore be free of any contradictions
that may affect credibility. If two or more inferences arise from the evidence, the inference to be
adopted is the one that favours the accused.

[41] If the accused were to be called upon to make his defence and he elects to remain silent, is the
court prepared to convict him on the evidence presented. If the answer is "yes" a prima faciecase has
been successfully made out and the defence should be called. If the answer is "no" then defence
should not be called.

[42] It is also worthwhile adding that the defence ought not to be called merely to clear or clarify
doubts. See Magendran Mohan v. PP [2011] 1 CLJ 805; [2011] 6 MLJ 1. Further, in PP v. Saimin &
Ors [1971] 1 LNS 115; [1971] 2 MLJ 16 Sharma J had occasion to observe:

It is the duty of the Prosecution to prove the charge against the accused beyond reasonable doubt and
the court is not entitled merely for the sake of the joy of asking for an explanation or the gratification
of knowing what the accused have got to say about the prosecution evidence to rule that there is a
case for the accused to answer.

Summary Of The Evidence And The Findings Of This Court

[43] Does the evidence led by the prosecution withstand the rigorous scrutiny of the maximum
evaluation test as propounded by the authorities referred to?

[44] The issues regarding the contradictions between the evidence of SP2 and SP7 have already been
alluded to, as were the other issues raised by the respondents. They need not be repeated.

[45] The prosecution has submitted that the contradictions are not material and that what matters is
not where the damage occurred but the fact that damage occurred.

[46] As alluded to earlier, taken in isolation the contradictions of itself may not amount to much but
when viewed in totality with the rest of the infirmities in the prosecution case, they assume some
significance. These infirmities directly go to the credibility of both SP1 and SP2 as prosecution
witnesses.

[47] While it is true that not all inconsistencies, discrepancies or contradictions necessarily render the
witness's entire evidence incredible, where these inconsistencies go to the root of the charge, for
example whether or not it bears upon the question of whether the accused persons were involved in
the crime alleged, they can no longer be disregarded as being of a trivial nature.

[48] In Pie Bin Chin v. PP [1983] 1 LNS 70; [1985] 1 MLJ 234 it was held that it is only when a
witness's evidence on material and obvious matters in the case is so irreconcilable, ambivalent or
negational that his whole evidence is to be disregarded.

[49] This court finds this to be the case here for the reasons set out above. In respect of the principles
which govern appellate interference, I can do no better than refer to the case of Kyros International
Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2013] 3 CLJ 813 where it was held in respect of
judicial appreciation of evidence:

Generally, an appellate court will not intervene unless the trial court was shown to be plainly wrong
in arriving at its decision or where there has been no or insufficient judicial appreciation of the
evidence.

[50] In similar vein is the case of Lim Ah Poh v. PP [1992] 1 SLR 713 where it was held:

An appellate court customarily exercises great caution in evaluating factual findings and will not
interfere with a trial judge's findings unless they are plainly wrong.

[51] The learned Magistrate in her grounds of judgment had outlined the ingredients of the offence
under s. 427 Penal Code. She had carefully sifted through the evidence presented by the prosecution
especially the fact that there were contradictions and inconsistencies between SP1 and SP2 and
reasoned that these contradictions and inconsistencies do not stand up to scrutiny in the light of the
maximum evaluation test.

[52] She therefore found that the very ingredients of the charge were not proved so that the
prosecution had failed to make out a prima facie case against the respondents.

[53] This court therefore finds no flaw in the analysis, findings and conclusions of the learned
Magistrate.

[54] The prosecution's appeal is accordingly dismissed and the decision of the learned Magistrate
affirmed.
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2012] 5 LNS 5

PP v. AZMAN ABDUL GANI


MAGISTRATE COURT, LAHAD DATU
M RAJALINGAM SJ
[CRIMINAL CASE NO: LHD-83-55/4-2012]
31 MAY 2012

Case(s) referred to:

Christopher Khoo Ewe Cheng v. PP [1998] 3 CLJ 705 CA (refd)

Fu Foo Tong & Ors v. PP [1995] 1 SLR 448 (refd)

Hasanuddin Abd Hamid v. PP [2002] 3 CLJ 495 HC (refd)

Ismail Rasid v. PP [1999] 4 CLJ 402 HC (refd)

Mah Kok Cheong v. R [1953] 1 LNS 53 HC (refd)

Mohd Akhtar Hussain @ Ibrahim Ahmed Bhatti v. Assistant Collector of Customs [1988] SC
2143 (refd)

PP v. Cheah Chooi Chuan [1972] 1 LNS 110 HC (refd)

PP v. Jesicca Lim Lu Ping & Anor [2004] 2 CLJ 763 HC (refd)

PP v. Soh Soo Yang & Anor [2000] 1 LNS 296 HC (refd)

Tan Sri Abdul Rahim Mohd Noor v. PP [2001] 4 CLJ 9 CA (refd)

Teo Chin Hwa v. PP [2000] 1 CLJ 224 CA (refd)

Legislation referred to:


Penal Code, s. 411

JUDGMENT

M Rajalingam SJ:

[1] The appellant/accused was convicted under s. 411 of the Penal Code for dishonestly
receiving stolen property, ie, 5808 shoal of Kerapu fishes belonging to Syarikat Aqua Harvest
Sdn Bhd.

[2] On 3 April 2012, he was charged before this court as:

Bahawa kamu pada 19/2/2012 jam lebih kurang 02.30 petang, bertempat di Kolam Ikan Perairan
Laut Pulau Saga, Jalan Silam, Lahad Datu, didalam daerah Lahad Datu, di dalam Negeri Sabah,
telah dengan curangnya memiliki harta curi, iaitu 5808 ekor jenis Kerapu milik Syarikat Aqua
Harvest Sdn Bhd dengan mempercayai bahawa ikan tersebut adalah harta curi. Oleh itu kamu
telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 411 Kanun Keseksaan.

[3] Though the accused was a Suluk, this court through its court interpreter, ascertained that he
understood the language in which the charge was to be read. He understood Bahasa Malaysia and
the charge was then read and explained to the accused. He pleaded guilty and understood the
nature and consequences of such plea. Before recording the plea, this court ensured that the
accused was explained the penalty provided under the law, ie, imprisonment for a term which
may extend to five years, or with fine, or with both.

[4] The facts of the case (P1), which was read to the accused in Bahasa Malaysia reads:

Pada 14/02/2012 jam lebih kurang 0200 hrs bertempat di Sangkar Ikan Payang milik Syarikat
Aqua Harvest Sdn Bhd, semasa pengadu menjalankan tugas sebagai pengawal keselamatan
ditempat tersebut, didapati 04 buah perahu yang tidak dikenali berada di kanan dan kiri tapak
semaian ikan. Selepas itu jam lebih kurang 06.00 pagi pengadu buat rondaan dan dapati jaring
sebuah tapak semaian ikan telah dipotong. Jumlah kehilangan ikan ditempat itu tidak dapat
dipastikan lagi. Laporan untuk siasatan selanjutnya.

Pada 16/02/2012 hrs satu laporan tangkapan terhadap tertuduh telah dibuat keatas tertuduh.
Tangkapan dibuat bersabit LDD/Rpt 1540/2012.

Hasil siasatan mendapati tertuduh adalah pemilik kolam ikan diperairan Laut Pulau Saga, Silam,
Lahad Datu bersama 2 orang lagi rakan. Tertuduh mengakui pekerjaan tertuduh adalah
memelihara ikan dan juga pembeli ikan jenis kerapu dari para nelayan.

Siasatan terhadap tertuduh mendapati tertuduh adalah pemilik kolam ikan tersebut dan juga
merupakan pembeli ikan dari nelayan berhampiran dan tiada pengakuan dari tertuduh dalam
kejadian mencuri ikan milik majikan pengadu. Dalam masa yang sama, tertuduh berkongsi
tempat bersama 2 rakan kongsi untuk menternak ikan. Tertuduh juga menjaga dan mengurus
kolam ikan tersebut juga berperanan menyimpan ikan yang dibeli dari nelayan. Seterusnya akan
memaklumkan kepada rakan kongsi yang dikenali dengan nama Muhammad Taib ada ikan baru
yang disimpan didalam kolam kepada B9.

Siasatan mendapati tertuduh mengakui bahawa ikan milik mereka telah dijual pada bulan Januari
2012 iaitu lebih kurang 1.6 tan ikan telah dijual.

Hasil siasatan juga mendapati, pihak polis dengan dipandu arah oleh rakan kongsi tertuduh iaitu
Muhammad Taib dan dibantu penyelia Syarikat Aqua Harvest Sdn Bhd, iaitu Liew Shan Fui
telah membuat pemeriksaan terhadap kolam ikan milik tertuduh. Penyelia syarikat Encik Liew
Shan Fui telah mengecam anak-anak ikan tersebut adalah dari jenis yang sama dengan milik
majikan beliau. Pengecaman dibuat berdasarkan saiz ukuran anak- anak ikan tersebut berserta
anggaran berat antara 100-150 gram seekor.

Encik Liew Shan Fui juga telah mengecam Tanjjak bulat atau jaring milik syarikat beliau
berkerja yang diperbuat dari Hos paip berwarna hitam manakala jaring adalah sama dengan
jaring ikan milik beliau, iaitu buatan Jepun. Tanjjak tersebut dirampas di kolam ikan tertuduh.

Seterusnya anak-anak ikan tersebut telah dirampas pada 18/02/2012, iaitu sejumlah 2933 ekor
(Ikan Kerapu) dan pada 19/02/2012 iaitu sejumlah 2875 ekor. Dan anak-anak ikan tersebut telah
diserah kepada pemilik iaitu Syarikat Aqua Harvest Sdn Bhd. Jumlah ikan yang dirampas ialah
5808 ekor. LDD/Rpt 1746/2012 dan LDD/Rpt 1776/2012 adalah berkaitan.

[5] The accused admitted the facts (P1) and other documentary exhibits from (P2) till (P18). This
court then found the accused guilty of the charge and convicted him accordingly.

[6] The accused mitigated:

Mohon ringan. Isteri dan anak. Kesalahan saya ini direndahkan hukuman. Tidak akan buat
kesalahan seperti ini.

[7] Prosecutor's submission:

Tuduhan atas - kehilangan 5808 ekor ikan. RM36,000 ribu kehilangan. Tindakan kumpulan.
Sindiket besar. S. 411 curi dan simpan. Tarikh kolam modus operandi, beli dari nelayan. Semua
ikan yang dijumpa tidak yakin. Kes ini menarik perhatian. Kerugian kes ini. Seriusan kes. Ulang
kali. Satu sahaja dapat dituduh. Sebagai ajaran pohon hukuman setimpal dan orang awam di luar
tidak menjalankan curian ikan garpu. Hukuman setimpal dipohon.

[8] Having heard the accused's mitigation and the prosecutor, I sentenced him to 30 months'
imprisonment with effect from date of arrest (16 February 2012) and to be referred to
Immigration Department upon serving sentence.
[9] The accused now appeals against the said conviction and sentence.

[10] This court is of the considered opinion that in imposing punishment on a guilty party, the
court has an absolute discretion which will be exercised judicially, but will not tolerate any
encroachment or even semblance of encroachment either by the prosecution or the defence in
respect of such discretion. In deciding an appropriate sentence for a particular offence, the court
will take into account the nature and the surrounding circumstances in which it was committed,
public interest, age of the offender, his character and background, rampancy of the offence and
the plea in mitigation.

Guilty Plea

[11] This court did not advance any threat, promise or inducement to the accused to plead guilty
to the charge. It was on his volition that this court had accepted his plea of guilt.

[12] The guilty plea and his mitigation might have given an impression to the accused that this
must work to his advantage in getting a lenient sentence. That is not so in this case, as this court
is of the opinion that the offence committed by the accused is rampant and serious in Sabah and
deterrence has to be the prime concern.

[13] This court could not find any evidence to show that the accused's plea of guilt was
motivated by remorse, contriteness or regret. This court is of the opinion that the practice of
imposing a lenient sentence on an accused by reason of his guilty plea, thus saving time and cost
is only a general rule! Thus, it is not an automatic ritual that a guilty plea on its own, will entitle
a right for an accused to receive a lenient sentence. In exercising its discretion, a court can
decline to give any credence to such plea, despite the accused being a first offender! In fact,
where circumstances necessitate that a long sentence or even the maximum sentence should be
passed to protect the public, a plea of guilty may not result in any discount at all as held in Fu
Foo Tong & Ors v. Public Prosecutor [1995] 1 SLR 448.

[14] Before his plea was recorded, this court was satisfied that the accused understood the nature
and consequences of his plea and intended to admit to the offence under Section 411 of the Penal
Code alleged against him. This Court reminded itself that it is necessary as a matter of discretion
to consider whether it is safe to accept the plea, as the recording of a plea of guilt is a solemn act
that is not to be taken lightly. It is a cardinal principle that any plea of guilty must be completely
unreserved, unqualified and unequivocal as held in Public Prosecutor v. Cheah Chooi Chuan
[1972] 1 LNS 110. This court in accepting the accused plea of guilty and its validity followed the
following safeguards:

- The court ensured that it was the accused himself who wished to plead guilty.

- The court ascertained that the accused understood the nature and consequences of his plea.

- The court ascertained that the accused intended to admit without qualification the offence
alleged against him under s. 411 of the Penal Code.
[15] This court did not shut its mind that the accused is a 40 year old family man with a wife and
child but that should have been in his fore mind before going on his high sea rendezvous of
dishonestly receiving pilfered fishes and using his aquaculture as a front and decoy of rearing
fish and purchasing from unscrupulous fishermen.

[16] It is the prerogative of this court to refuse to consider the accused as a first time offender
even though he had no prior convictions. This court was extremely reluctant to regard the
accused as a first time offender. The so called "Will Not Commit Such Offence " cry of the
accused is irrelevant as a mitigating factor but relevant as an aggravating factor in that the
offence is so much greater because the accused should have known better. This is not the type of
offence that the accused would be allowed to commit over and over again. Though the timeous
plea of guilt by the accused is indicative of genuine remorse and a mitigating factor, however
there is no mitigation value in his plea of guilty as the accused knew that the prosecution would
have no difficulty proving the charge against him, as he had been caught red-handed. In this
case, there is doubt as to whether the accused had really repented as he had effectively been
caught red-handed and could not hope to put forward any plausible defence to the charge against
him. His plea of guilt must thus matter little.

[17] The Supreme Court of India in Mohd Akhtar Hussain @ Ibrahim Ahmed Bhatti v. Assistant
Collector of Customs [1988] SC 2143 held:

Generally it is both proper and customary for courts to give credit to an accused for pleading
guilty to the charge. But no credit need be given if the plea of guilty in the circumstance is
inevitable or the accused has no alternative but to plead guilty, the accused being caught red-
handed is one such instance.

[18] This court is of the considered opinion that the so called discount or credit to be given in
relation to sentences passed, upon a plea of guilty should not be used whimsically; as it gives the
impression that the accused can bargain over his sentence. The threat of inconvenience to the
court by a prolonged trial and expense, in the event the court does not accede to pass a particular
sentence, or a lesser sentence than the maximum, upon a plea of guilt, should never prevail!

[19] In Mah Kok Cheong v. R [1953] 1 LNS 53, Spenser Wilkinson J had occasion to consider
the classes of criminal cases where the law imposed different evidentiary burdens. He said with
regard to the category relating to theft and receiving stolen property:

... Cases of theft or receiving where the only evidence against the accused is the possession of
property recently stolen. These cases are really in a class by themselves - they may be looked
upon not so much as cases where the law has cast a burden of proof upon the accused, but rather
as cases where the law has given special significance to a certain class of circumstantial
evidence, namely, the possession of stolen goods. The law is that such possession is in itself
evidence of the theft or receiving unless explained.

Public Interest

[20] In the context of public interest, this court finds that the offence committed by the accused is
a grave one for which a custodial sentence ought to be imposed. The sentence should serve as a
deterrent not only to the accused but also to others who are like minded and under the
hallucination that they can get away with mob rule to destroy the last vestiges of civilized life,
reaping the harvest of nature's gift in the sea.

[21] Abdul Wahab Patail J (as his Lordship then was) in PP v. Soh Soo Yang & Anor [2000] 1
LNS 296 observed that the court also had to see that the punishment was fair and just to suit the
crime. If the public, including the victims and their dependants, do not feel justice is done
according to the crime, respect for and reliance upon the law will be eroded.

[22] The various theories and principles enunciated in sentencing are now well documented.
However, one important feature which has been repeatedly emphasized is the public interest
aspect of sentencing principles. Public interest is a variable that is determined by the time, place,
nature and circumstances of each case including the prevalence of the offence involved.

[23] In the Court of Appeal decision of Tan Sri Abdul Rahim Mohd Noor v. PP [2001] 4 CLJ 9,
this was reminded in the following words:

It cannot be gainsaid that the most onerous function of any court is to decide the appropriate
sentence in any criminal case. In deciding the appropriate sentence a court should always be
guided by certain considerations. The first and foremost is the public interest. In that context the
interest of justice should no doubt take into account the interest of the offender. But it is often
forgotten that the interest of justice must also include the interest of the community. In assessing
sentence the court should balance the interest of the offender with the interest of the victim and
strike a balance, not, of course forgetting that the interest of the public should be of uppermost
consideration.

[24] This court in sentencing the accused has an obligation to have regard to the public's
expectation in Lahad Datu, as to what an appropriate punitive period of imprisonment should be,
having regard to all the relevant circumstances in which the accused had played a pivotal role.
The accused must be punished with a sentence that commensurate with the seriousness and
gravity of the offences. The question this court has to ask itself therefore must necessarily be:

How would the public interest be best served when deciding on the mode or kind of sentence
with respect to the accused?

[25] It therefore becomes imperative upon the court then to consider the various guiding
principles such as whether the facts and circumstances in this case should warrant a punitive or a
reformative or rehabilitative approach.

[26] The accused in this case had no positive identification papers to assert that he was a
Malaysian. Thus, this court is of the considered opinion that he is an economic migrant. If this
court were to impose only a fine, such a fine would merely represent a slap on the wrist, a
cynically calculated cost of breaking the law for personal profit. This court does not think that
the livelihood and welfare of Malaysian aquaculture entrepreneurs should be held ransom by
such profiteers. Accordingly, custodial sentences must be imposed to send out the firm signal
that clandestine aquaculture operators' heydays are gone and simply does not pay to venture into
such activities.

Gravity Of The Offence

[27] The offence committed by the accused is preceded by premeditation, planning with due
deliberation and professional skill and so calls for a deterrent sentence as held in Hasanuddin
Abd Hamid v. PP [2002] 3 CLJ 495.

[28] It is quite true that the accused has to face a term of imprisonment before he will be released
and as a family man his family would be deprived of his support and care BUT his detention is
necessary to protect other aquaculture entrepreneurs of the eastern coastline of Sabah. His arrest
was only the tip of the iceberg, as it was asserted by the prosecution that there are other little
Napoleons out in the open sea, running their lucrative aquaculture ventures at the expense of
genuine entrepreneurs.

[29] The state of Sabah, which is located in the middle of one of the 12 mega-diversity sites in
the world, has abundant marine resources, which include coral reefs and fisheries. Both national
and state policies stress the importance of expanding this industry through commercialisation of
the fisheries and aquaculture industries. In order to do so, investors both local and foreign are
encouraged to invest in this important sector. The fisheries and aquaculture sector in Sabah has
proven to be an important supplier of animal protein and has contributed significantly to the
State's economy. In addition, this sector has provided many communities with employment and
socio-economic opportunities. The industry plays a vital role in providing social and economic
stability to the industry players and fishermen as a whole.

[30] The accused, though a migrant has been masquerading as a genuine aquaculture industry
player, using his freshwater pond operation to enrich him, acting as a fence for unscrupulous fish
pilfers. Perhaps the accused finds it hard to say no to fishermen, when they know that they will
always find him as a willing buyer. So long as there are willing buyers like the accused, the theft
of fish cannot be curtailed or eradicated.

The Sentence

[31] Any attempt to reduce the law of sentencing into a rigid and flexible mathematical formula
in which all sentences are deemed capable of being tabulated with absolute scientific precision
will be highly unrealistic. The regime of sentencing is a matter of law which involves a
hotchpotch of such varied and manifold factors that no two cases can ever be completely
identical in this regard. Whilst past cases are no doubt helpful and sometimes serve as critical
guidelines for the sentencing court, that is also all that they are, ie, mere guidelines only. At the
end of the day, every case which comes before the courts must be looked at on its own facts,
each particular accused in his own circumstances.

[32] In PP v. Jesicca Lim Lu Ping & Anor [2004] 2 CLJ 763 it was stated that no golden rule has
yet been formulated by the courts in respect of sentencing in criminal cases. There is, however, a
general flexible principle that the trial court is free to exercise its discretion, judicially and
conscientiously, with regard to the period of incarceration that a convict should undergo. It is
customary for the court to give the convict a reduced-sentence for pleading guilty. The court
recognises that a plea of guilty disposes of a criminal case with lightning speed; it eases the
backlog of undisposed criminal cases and unclogs the courts and prisons of remand-prisoners. A
reduced sentence for pleading guilty encourages the accused to be honest in admitting to the
offence he has committed. A discount of between one-quarter and one-third of the sentence that
would otherwise have been imposed is usually given. Whether the sentence imposed is crushing
cannot be answered mathematically by reference to the accused's age and the length of sentence
to be served but by the circumstances of the case.

[33] However, a guilty plea does not necessarily reduce the sentence, as held in the following
cases, where the gravity of the offence and the interest of the public outweighed: Christopher
Khoo Ewe Cheng v. PP [1998] 3 CLJ 705; Ismail Rasid v. PP [1999] 4 CLJ 402 and Teo Chin
Hwa v. PP [2000] 1 CLJ 224.

[34] Though the accused is a first offender, it is the prerogative of the court to refuse to consider
owing to the nature of this offence, more so, the accused being a non-Malaysian. Thus, his
antecedents' amounts to nothing more than a weak mitigating factor but relevant as an
aggravating factor in that his offence is so much greater because the accused should have known
better.

[35] His mitigation that his family would be subject to hardship if a severe sentence were to be
imposed has attained the status of a mantra in mitigation plea. The accused should have thought
of this before committing the offence as he brought this hardship upon himself and his family. If
he was really concerned about their plight, he should have thought of them before embarking
upon this high sea venture. Whatever hardship would be visited upon his family, such hardship is
considered the price he must bear and cannot affect what would otherwise be the right sentence.

[36] In applying the principles adumbrated above, and considering all other factors in the factual
matrix of these cases, this court is of the considered opinion that the term of imprisonment for 30
months with effect from the date of arrest (16 February 2012) and to be deported having served
his term is sufficient and adequate on the accused. With one third remission, the accused would
be out to join his family in one year eight months!

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