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RAYUAN JENAYAH NO: AA-41S-6-02/2023
MUHAMAD HAKIMI …PERAYU

LAWAN
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RUJ KAMI: E/C/HAKIMI-DHARMA/2022
INDEKS IKATAN AUTORITI PERAYU
NO. AKTA/KES LAMPIRAN MUKA SURAT

M/S
1. Seksyen 173 (h) (iii) Kanun Tatacara 1 1-3

Jenayah (Akta 593);
2. PP V. MOHD RADZI BIN ABU BAKAR 2 4-24

[2006] 1 CLJ 457;
3. LOOI KOW CHAI & ANOR V. PP [2003] 3 25-48

1 CLJ 734;
4. Seksyen 173(f)(i) dan (ii) Kanun 4 49-51

Tatacara Jenayah (Akta 593);
5. PP v. Mohamad Malek Ridhzuan Che 5 52-83

Hassan [2013] 8 CLJ 359; [2013] CLJU
447; [2013] 1 LNS 447;
6. Alaggandiran Vellu v. PP [2010] 4 CLJ 6 84-92

410;
7. Yap Sing Hock & Anor v. PP [1992] 4 7 93-108

CLJ 1950; [1992] 1 CLJ (Rep) 356;
8. TENGKU MAHMOOD v. PUBLIC 8 109-112

PROSECUTOR [1974] 1 LNS 176
[SUPRA]
9. Tukiran Bin Taib v. Public Prosecutor 9 113-114

[1955] 1 LNS 166; [1955] 1 MLRH 480;
10. Public Prosecuter v Mohamad Arfah 10 115-127

Jasmi [2007] MLJU 500; [2008] 7 CLJ
836;
11. PP v. Nazarudin Ahmad & Ors [1993] 2 11 128-135

CLJ 543;
12. Abdul Karim v. Regina [1954] 1 LNS 3; 12 136-137
13. Nor Afizal Azizan v PP [2012] 6 CLJ 370 13 138-150

;
3/7/24, 9:48 AM eLaw Legislation
CRIMINAL PROCEDURE CODE (REVISED 1999)

ACT 593
1
173. Procedure in summary trials. Cases Referred
The following procedure shall be observed by Magistrates in summary trials:
(a) When the accused appears or is brought before the Court a charge containing the particulars
of the offence of which he is accused shall be framed and read and explained to him, and he shall
be asked whether he is guilty of the offence charged or claims to be tried.
(b) If the accused pleads guilty to the charge, whether as originally framed or as amended, the
plea shall be recorded and he may be convicted on it and the Court shall pass sentence according
to law:
Provided that before a plea of guilty is recorded the Court shall ascertain that the accused
understands the nature and consequences of his plea and intends to admit, without qualification,
the offence alleged against him.
(c) If the accused refuses to plead or does not plead or claims to be tried, the Court shall proceed
to take all such evidence as may be produced in support of the prosecution.
(d) When the Court thinks it necessary it shall obtain from the complainant or otherwise the
names of any persons likely to be acquainted with the facts of the case and to be able to give
evidence for the prosecution, and shall summon to give evidence before itself such of them as it
thinks necessary.
(e) The accused shall be allowed to cross-examine all the witnesses for the prosecution.
(f) (i) 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.
(ii) If the Court finds that the prosecution has not made out a prima facie case against the
accused, the Court shall record an order of acquittal.
(g) Nothing in paragraph (f) shall be deemed to prevent the Court from discharging the accused
at any previous stage of the case if for reasons to be recorded by the Court it considers the charge
to be groundless.
(h) (i) If the Court finds that a prima facie case has been made out against the accused on the
offence charged, the Court shall call upon the accused to enter on his defence.
(ii) If the Court finds that a prima facie case has been made out against the accused on an offence
other than the offence charged which the Court is competent to try and which in the opinion of
the Court it ought to try, the Court shall amend the charge.
(iii) For the purpose for subparagraphs (i) and (ii), a prima facie case is made out against the
accused where the prosecution has adduced credible evidence proving each ingredient of the
offence which if unrebutted or unexplained would warrant a conviction.
[Ins. by Act A1274]
(ha) When the Court calls upon the accused to enter on his defence under subparagraph (h) (i),
the Court shall read and explain the three options to the accused which are as follows:
(i) to give sworn evidence in the witness box;
(ii) to give unsworn statement from the dock;

about:blank 1/3
or
(iii) to remain silent.

2
[Ins. by Act A1274]
(i) The charge if amended shall be read to the accused as amended and he shall be again asked
whether he is guilty of the offence in the charge as amended.
(j) (i) If the accused pleads guilty to the charge as amended, the plea shall be recorded and he
may be convicted on it and the Court shall pass sentence according to law:
(ii) If the accused does not plead guilty to the charge as amended, the accused shall be called
upon to enter on his defence.
(iii) When the accused is called upon to enter on his defence, he may produce his evidence and
shall be allowed to recall and cross-examine any witness present in the Court or its precincts:
Provided that if the accused elects to be called as a witness, his evidence shall be taken before
that of other witnesses for the defence:
Provided further that any accused person who elects to be called as a witness may be cross-
examined on behalf of any other accused person.
(k) If the accused puts in any written statement the Court shall file it with the record.
(l) (i) If the accused applies to the Court to issue any process for compelling the attendance of
any witness (whether he has or has not been previously examined in the case) for the purpose of
examination or cross-examination or the production of any document or other thing, the Court
shall issue the process unless it considers that the application should be refused on the ground
that it is made for the purpose of vexation or delay or for defeating the ends of justice, in which
case that ground shall be recorded by it in writing.
(ii) The Court may, before summoning any witness on such application, require that his
reasonable expenses incurred in attending for the purposes of the trial be deposited in Court.
(m) (i) At the conclusion of the trial, the Court shall consider all the evidence adduced before it
and shall decide whether the prosecution has proved its case beyond reasonable doubt.
(ii) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court
shall find the accused guilty and he may be convicted on it and the Court shall pass sentence
according to law.
Provided that before the Court passes sentence, the Court shall, upon the request of
the victim of the offence or the victim's family, call upon the victim or a member of
the victim's family to make a statement on the impact of the offence on the victim or
his family; and where the victim or a member of the victim's family is for any
reason unable to attend the proceedings after being called by the Court, the Court
may at its discretion admit a written statement of the victim or a member of the
victim's family.
[Proviso (m)(ii) Subs. by Act A1422]
(iii) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the
Court shall record an order of acquittal.
about:blank 2/3
(n) When the proceedings have been instituted upon the complaint of some person upon oath
under section 133 and upon any day fixed for the hearing of the case the complainant is absent
and the offence may lawfully be compounded, the Court may, in its discretion, notwithstanding
3
anything hereinbefore contained, discharge the accused at any time before calling upon him to
enter upon his defence.
(o) If the accused does not appear at the time and place mentioned in the summons and it appears
to the Court that the summons was duly served a reasonable time before the time appointed for
appearing and no sufficient ground is shown for an adjournment the Court may either proceed ex
parte to hear and determine the complaint or may adjourn the hearing to a future day.
[Am. by Act A979]
EDITORIAL COMMENTS AND ANNOTATIONS
On the usage of handcuffs
Refer also to Yaakub Bin Ahmad v. Public Prosecutor [1975] 1 MLRA 320
procedure under s 173(b)
Refer also to Public Prosecutor v. Tengku Hitam [1962] 1 MLRH 108 :
In this case the record does not show that the Court ascertained that the accused understood the nature and
consequences of his plea and intended to admit, without qualification, the offence alleged against him. There
is also no record that his plea was accepted by the learned Magistrate before recording a conviction. I invite
the attention of all Presidents and Magistrates to the provisions of s. 173(b) of the criminal procedure code.
I would suggest that the following procedure be adopted. Before a case is presented in Court the prosecution
must first satisfy itself whether the maximun punishment which such Court can impose is adequate. If it
thinks that such sentence is inadequate the case should be brought before another Court. Ordinarily a case
should be brought before the Court which has jurisdiction to try it. For example, a case which is ordinarily
triable in a Magistrate's Court should be brought in that Court and should only be brought in the Sessions
Court if the prosecution is of the opinion that upon conviction the maximum sentence which can be imposed
by the Magistrate is inadequate. The provisions of s. 87(2) of the Courts Ordinance, 1948 should only be
invoked when the case takes an unexpected turn and the evidence so adduced shows that the maximum
sentence that can be imposed by the trial Magistrate is inadequate."
about:blank 3/3
4
[2006] 1 CLJ PP v. Mohd Radzi Abu Bakar 457
A PP
v.
MOHD RADZI ABU BAKAR

B FEDERAL COURT, PUTRAJAYA
AHMAD FAIRUZ PCA
ABDUL MALEK AHMAD FCJ
GOPAL SRI RAM JCA
[CRIMINAL APEAL NO: 05-50-2002(R)]
C 25 NOVEMBER 2005
CONSTITUTIONAL LAW: Courts - Appeals - Whether an appellate

court can make its own findings of fact
CONSTITUTIONAL LAW: Courts - Judicial power - Whether

D
declaration of common law by superior court operates retrospectively
CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 37(da) -

Prosecution’s burden to prove possession where s. 37(da) is relied on
E CRIMINAL PROCEDURE: Prosecution - Prima facie case -

Prosecution must establish its case beyond reasonable doubt before defence
can be called - Whether court must make and record finding at close of
prosecution’s case that prosecution has proved its case beyond reasonable
doubt - Whether court must undertake maximum evaluation of prosecution
F evidence - Whether court must assess credibility of prosecution witnesses
and draw inferences admitted by prosecution evidence
On 20 December 1991, several Customs personnel attempted to

stop a motorcycle. The motorcycle then made a “U turn” and the
G
pillion rider of the motor cycle leapt from the motorcycle and
began to run away. After a short pursuit, both the rider, the
respondent, and the pillion rider, Saiful, were apprehended. Four
packages were recovered from the respondent. They were found
to contain a substance, which on subsequent examination by the
H
chemist (PW1), was found to be 342.1 grams of cannabis. The
respondent was later charged with an offence under s. 39B(1)(a)
of the Dangerous Drugs Act 1952 (“the Act”), convicted and
sentenced to death.
I
5
458 Current Law Journal [2006] 1 CLJ
The learned judge had convicted the respondent on the basis of A

s. 37(d) of the Act read with s. 37(da) of the Act. In other
words, he first held the respondent to be in presumed possession
of the proscribed drug within s. 37(d) of the Act and then
proceeded to hold that such possession was sufficient to raise the
presumption of trafficking under s. 37(da) of the Act. After a brief B
review of the defence evidence, he concluded that the respondent
had failed to rebut the presumption of trafficking. He accordingly
entered a conviction.
The majority of the Court of Appeal held that this approach to C

the case by the learned trial judge amounted to a misdirection.
That Court therefore set aside the conviction for trafficking under
s. 39B(2) and substituted it with a conviction under section under
s. 6 and punishable under s. 39A(2) of the Act. It also set aside
the sentence of death and instead imposed 18 years’ imprisonment D
from the date of arrest and ten strokes of whipping. In his
judgment, Mokhtar Sidin JCA, took the view that it offended the
principle laid down in the decision in Muhammed Hassan v. Public
Prosecutor, the rule against double presumptions or the rule against
a presumption upon a presumption. When the learned judge at E
first instance tried the respondent and handed down his decision,
Muhammed Hassan was yet to be decided. However, the judgment
of the Federal Court in Muhammed Hassan had been handed
down before the respondent’s appeal against his conviction was
heard by the Court of Appeal. In relation to the duty of a trial F
judge at the close of the prosecution case, the majority in the
Court of Appeal held that it is necessary in such a case for the
trial court to set out its reasons for deciding to call on an accused
to enter upon his defence. Their Lordships held that it is
insufficient for a trial court merely to record the fact that the G
defence was being called and later in its written judgment to
explain why that was done. The prosecution being dissatisfied with
the decision, appealed.
Held
H
Oleh Ahmad Fairuz PMR:
[1] Mengenai isu penguatkuasaan kebelakangan keputusan kes

Muhammed Hassan v. Public Prosecutor, keputusan itu hanya
terpakai kepada kes-kes yang masih menanti perbicaraan, tidak
kira samada dibicara bagi kali pertamanya atau dibicara di I
peringkat rayuan. (perenggan 2)
6
A Per Abdul Malek Ahmad FCJ:
[1] Unless there is a prospective ruling, any decision will also

affect all cases disposed of before that decision. The correct
proposition would be that any decision made, without the
B necessity of a prospective ruling, can apply only to pending
cases irrespective of whether at first instance or at the
appellate stage. It certainly does not apply to cases already
disposed of at the highest appellate level. (para 7)
Per Gopal Sri Ram JCA (dismissing the appeal and

C
upholding the order of the majority of the Court of Appeal
both in respect of the conviction entered and the sentence
passed):
[1] Arulpragasan Sandaraju v. Public Prosecutor is authority for the

D proposition that the test to be applied under the former
ss. 173 (f) and 180 of the CPC is that the prosecution must
establish its case beyond a reasonable doubt before an
accused could be called upon to enter his defence. It is not
authority for the proposition that it is incumbent for a court
E to make a finding at the close of the prosecution’s case that
he was satisfied that the prosecution had proved its case
beyond reasonable doubt. The failure by the trial court either
to make or to record such a finding does not occasion a
miscarriage of justice. It is sufficient for the judicial arbiter –
F be he judge or magistrate – to give his reasons in his written
grounds of judgment for requiring an accused to make his
defence. (para 11)
[2] After the amendments to ss. 173(f) and 180 of the CPC, the
G statutory test has been altered. What is required of a
subordinate court and the High Court under the amended
sections is to call for the defence when it is satisfied that a
prima facie case has been made out at the close of the
prosecution case. This requires the court to undertake a
H maximum evaluation of the prosecution evidence when
deciding whether to call on the accused to enter upon his or
her defence. It involves an assessment of the credibility of the
witnesses called by the prosecution and the drawing of
inferences admitted by the prosecution evidence. Thus, if the
I prosecution’s evidence admits of two or more inferences, one
of which is in the accused’s favour, then it is the duty of the
court to draw the inference that is favourable to the accused.
(para 12)
7
[3] If the court, upon a maximum evaluation of the evidence A

placed before it at the close of the prosecution case, comes
to the conclusion that a prima facie case has not been made
out, it should acquit the accused. If, on the other hand, the
court after conducting a maximum evaluation of the evidence
comes to the conclusion that a prima facie case has been B
made out, it must call for the defence. If the accused then
elects to remain silent, the court must proceed to convict him.
It is not open to the court to then re-assess the evidence and
to determine whether the prosecution had established its case
beyond a reasonable doubt. The absence of any evidence from C
the accused that casts a reasonable doubt on the
prosecution’s case renders the prima facie case one that is
established beyond a reasonable doubt. (para 13)
[4] Where the prosecution seeks to prove trafficking by relying on D

s. 37(da), it must prove at the trial all the ingredients of
possession as set out in the cases of Toh Ah Loh & Mak Thim
v. Rex and Saad Ibrahim v. Public Prosecutor. (para 23)
[5] The declaration of the common law by a superior court

E
operates retrospectively. The Court of Appeal was correct in
applying Muhammed Hassan and in holding that the High
Court had misdirected itself. (paras 27 & 28)
[6] The flight of the respondent from the scene and the finding
of the four wrapped packages on his person, even when taken F
together, do not go to prove trafficking. As to flight, this is
not by itself proof of a guilty mind. When the recovery of the
packages is taken together with the evidence of flight, two
inferences are reasonably possible. Either the respondent knew
that the packages contained cannabis in excess of the G
statutory minimum or he thought that they contained some
other contraband goods. In those circumstances, the
established principle is that the inference most favourable to
the respondent must be drawn. In other words, the
prosecution had failed to prove beyond a reasonable doubt H
that the respondent knew the nature of the thing possessed
which is a vital element of the ingredient of possession in the
presumption under s. 37(da). (paras 29 & 30)
[7] It is settled law that it is no part of the function of an I

appellate court in a criminal case – or indeed any case – to
make its own findings of fact. That is a function exclusively
reserved by the law to the trial court. An appellate court is
8
A necessarily fettered because it lacks the audio-visual advantage

enjoyed by the trial court. The further principle established by
this court in Muhammed Hassan v Public Prosecutor is that
where s. 37(da) is relied on by the prosecution, it is for the
trial court to make a specific finding that the accused was in
B possession in the legal sense. In the absence of such a finding,
it is not open to an appellate court to fill the gap and make
the finding. (paras 32 & 33)
Case(s) referred to:
C
Abdillah Lobo Khan v. PP [2002] 3 CLJ 521 CA (refd)
Abdullah Zawawi Yusoff v. PP [1993] 4 CLJ 1 SC (refd)
Arupragasan Sandaraju v. PP [1996] 4 CLJ 597 FC (refd)
Dato’ Mokhtar Hashim & Anor v. PP [1983] 2 MLJ 232 (refd)
Dato’ Seri Anwar Ibrahim v. PP [2000] 2 CLJ 695 CA (refd)
Dato’ Seri Anwar Ibrahim v. PP [2000] 3 CLJ 457 FC (refd)
D Junaidi Abdullah v. PP [1993] 3 MLJ 217 (refd)
Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734 CA (refd)
Muhammed Hassan v. PP [1998] 2 CLJ 170 FC (refd)
National Westminster Bank plc v. Spectrum Plus Limited [2005] UKHL 41
(refd)
E
PP v. Badrulsham Baharom [1988] 2 MLJ 585 (refd)
PP v. Chia Leong Foo [2000] 4 CLJ 649 HC (refd)
PP v. Dato’ Seri Anwar Ibrahim (No 3) [1999] 2 CLJ 215 HC (refd)
PP v. Dato’ Yap Peng [1987] 2 MLJ 311 (refd)
PP v. Kasmin Soeb [1974] 1 MLJ 230 (refd)
PP v. Okonkwo & Anor [1993] 3 SLR 610 (refd)
F Saad Ibrahim v. PP [1968] 1 MLJ 158 (refd)
Tai Chai Keh v. PP [1948-49] MLJ Supp 105 (refd)
Toh Ah Loh & Mak Thim v. Rex [1949] 15 MLJ 54 (refd)
Tunde Apatira & Ors v. PP [2001] 1 CLJ 381 FC (refd)
Yap Chai Chai & Anor v. PP [1973] 1 MLJ 219 (refd)
G
Legislation referred to:
Courts of Judicature Act 1964, s. 92(1)
Courts of Judicature (Amendment) Act 1995, s. 17
Criminal Procedure Code, ss. 173(f), 180
Dangerous Drugs Act 1952, ss. 6, 37(d), (da), 39A(2), 39B(1)(a), (2)
H
For the appellant - Mohamad Hanafiah Zakaria DPP (Nik Azrin Nik
Abdullah with him)
For the respondent - M Athimulan (Dev Kumaraendran with him);
M/s Kumar & Co
I [Appeal from Court of Appeal; Criminal Appeal No: R-05-3-94]
Reported by Amutha Suppayah

9
JUDGMENT A
Ahmad Fairuz PMR:
[1] Saya telah membaca draf-draf penghakiman YAA Tan Sri

Dato’ Abdul Malek Ahmad dan YA Dato’ Gopal Sri Ram dan
B
bersetuju dengan alasan-alasan penghakiman tersebut yang
mengesahkan sabitan dan hukuman ke atas responden di bawah s.
39A Akta Dadah Berbahaya (Akta tersebut).
[2] Mengenai isu penguatkuasaan kebelakangan keputusan kes

Muhammed bin Hassan v. Public Prosecutor [1998] 2 MLJ 273 saya C
setuju bahawa keputusan itu hanya terpakai kepada kes-kes yang
masih menanti perbicaraan, tidak kira samada dibicara bagi kali
pertamanya atau dibicara di peringkat rayuan. Ketara dari deraf
penghakiman YA Dato’ Gopal Sri Ram, penghakiman kes
Muhammed bin Hassan v. Public Prosecutor supra telah dibuat D
sebelum rayuan responden dibicarakan oleh Mahkamah Rayuan.
Justeru itu penghakiman Muhammed bin Hassan supra wajar sekali
digunapakai oleh Mahkamah Rayuan itu.
Abdul Malek Ahmad FCJ: E
[3] I have read the judgment in draft of my learned brother

Gopal Sri Ram JCA and am in full agreement with the reasoning
and conclusion therein as regards the conviction and sentence in
line with the majority judgment of the Court of Appeal.
F
[4] However, as regards the retrospective effect of Muhammed
bin Hassan [1998] 2 CLJ 170, I hold a different view.
[5] In Abdillah bin Lobo Khan v. PP [2002] 3 CLJ 521, the

Court of Appeal held as follows: G
The Federal Court could, therefore, if it had so wished, have

declared its decision in Muhammed bin Hassan to be of
prospective effect only. Had it done so, then cases decided under
the former misconception about the way in which ss. 37(d) and
(da) of the Act were to be applied would not have been available H
for correction on appeal. But that is not what happened. The
decision in Muhammed bin Hassan consequently falls under the
general doctrine of retrospectivity and it therefore applies to the
present case. We therefore are bound to apply it.
I
10
A [6] This issue had actually been made clear by the Supreme
Court in Public Prosecutor v. Dato’ Yap Peng [1987] 2 MLJ 311
when it said:
The general principle of retroactivity of a judicial declaration of
B
invalidity of a law was overturned by the Supreme Court of the
United States of America in Linkletter v. Walker [1965] 381 US
618 (at page 628) when it devised the doctrine of prospective
overruling in the constitutional sphere in 1965 as a practical
solution for alleviating the inconveniences which would result from
its decision declaring a law to be unconstitutional, after overruling
C its previous decision upholding its constitutionality. This doctrine
was applied by the Supreme Court of India in LC Golak Nath v.
State of Punjab & Another AIR [1967] SC 1643 (at pages 1666-
1669). The doctrine – to the effect that when a statute is held to
be unconstitutional, after overruling a long-standing current of
D
decisions to the contrary, the Court will not give retrospective
effect to the declaration of unconstitutionality so as to set aside
proceedings of convictions or acquittals which had taken place
under that statute prior to the date of the judgment which
declared it to be unconstitutional, and convictions or acquittals
secured as a result of the application of the impugned statute
E previously will accordingly not be disturbed – can be applied by
the Supreme Court as the highest court of the country in a matter
arising under the Constitution to give such retroactive effect to its
decision as it thinks fit to be moulded in accordance with the
justice of the cause or matter before it – to be adhibited however
with circumspection and as an exceptional measure in the light of
F
the circumstances under consideration.
In England this doctrine has been recognised by the House of

Lords by necessary implication in the Practice Statement (Judicial
Precedent) [1966] 1 WLR 1234 issued by Lord Gardiner LC on
G behalf of himself and the Lords of Appeal in Ordinary on July
26, 1996. More recently, in Jones v. Secretary of State for Social
Services [1972] AC 944, two judges of the House of Lords, Lord
Diplock (at page 1015) and Lord Simon of Glaisdale (at page
1026) were prepared to consider the application of the American
doctrine of prospective overruling to England. In Choice
H Investments Ltd v. Jeromnimon [1981] 2 WLR 80 Lord Denning
MR in his judgment in the English Court of Appeal (at page 84)
accepted the subsistence and application of the doctrine. In
Defrenne v. Sabena [1981] 1 All ER 122, the Court of Justice of
the European Communities applied the doctrine of prospective
I overruling predicated on conditions of legal certainty which
required the court, as an exceptional measure, to declare the law
for the future only.
11
At the conclusion of argument on March 19, 1987, the Court A

accordingly by a majority (Tun Mohamed Salleh Abas LP, and
Tan Sri Hashim Yeop A. Sani SCJ dissenting) declared section
418A to be unconstitutional and void as being an infringement of
the provisions of article 121(1) and applied the doctrine of
prospective overruling so as not to give retrospective effect to the
B
declaration made with the result that all proceedings of convictions
or acquittals which had taken place under that section prior to the
date of our judgment in this matter would remain undisturbed and
not be affected, and the appeal was dismissed on this basis.
[7] The principle enunciated in Public Prosecutor v. Dato’ Yap C

Peng (supra) seems to indicate that, unless there is a prospective
ruling, any decision will also affect all cases disposed of before that
decision. To my mind, the correct proposition would be that any
decision made, without the necessity of a prospective ruling, can
apply only to pending cases irrespective of whether at first D
instance or at the appellate stage. It certainly does not apply to
cases already disposed of at the highest appellate level.
Gopal Sri Ram JCA:
[8] The respondent before us was charged with an offence of E

trafficking a proscribed drug contrary to s. 39B(1)(a) of the
Dangerous Drugs Act 1952 (“the Act”) and punishable under
s. 39B(2) of the Act. He was convicted of that offence by the
High Court on 21 July 1994 and sentenced to death. He then
appealed to the Court of Appeal. That court by a majority (KC F
Vohrah JCA dissenting) reversed the High Court and set aside the
sentence of death. However, it convicted the appellant of the
lesser offence of possession under s. 39A(2) of the Act. A
sentence of 18 years imprisonment from the date of arrest and ten
strokes of whipping was imposed on the respondent. The G
prosecution being dissatisfied with the decision appealed to this

court. Before we address the appeal on its merits, there is a
matter that needs to be dealt with.
[9] In the course of their separate judgments, the majority H

(Mokhtar Sidin JCA and Faiza Tamby Chik J) made certain
observations with which we are unable to agree. It has to do with
the duty of a trial judge, who, at the close of the prosecution
case, decides to call upon an accused to make his defence to a
charge. According to the majority it is necessary in such a case I
for the trial court to set out its reasons for deciding to call on an
accused to enter upon his defence. It is insufficient for a trial court
12
A merely to record the fact that the defence was being called and
later in its written judgment to explain why that was done. The
decision of this Court in Arulpragasan a/l Sandaraju v. Public
Prosecutor [1996] 4 CLJ 597 was relied upon in support of this
proposition since the present instance was a case decided before
B the amendments to the Criminal Procedure Code (CPC). With
respect, we are unable to agree with the majority view.
[10] The point that found favour with the majority is one that has
already been traversed by high authority. In Yap Chai Chai & Anor
C v. Public Prosecutor [1973] 1 MLJ 219, the trial judge did not enter
on the record his opinion that there was a case to answer before
leaving the case to the jury. A complaint that this rendered the
trial a nullity found no favour with the court. Similarly, in Junaidi
bin Abdullah v. Public Prosecutor [1993] 3 MLJ 217, the Supreme
D Court rejected an argument in a case tried by a judge sitting
alone. Both these cases are referred to in some detail in the
dissenting judgment of KC Vohrah JCA and we find no reason to
regurgitate them. Suffice to say that the effect of those cases has
not been eroded by the decision in Arulpragasan.
E
[11] In our respectful view, Arulpragasan is authority for the
proposition that the test to be applied under the former ss. 173(f)
and 180 of the CPC is that the prosecution must establish its
case beyond a reasonable doubt before an accused could be called
upon to enter his defence. It is not authority for the proposition
F
that it is incumbent for a court to make a finding at the close of
the prosecution’s case that he was satisfied that the prosecution
had proved its case beyond reasonable doubt. The failure by the
trial court either to make or to record such a finding does not in
our judgment occasion a miscarriage of justice. It is sufficient for
G
the judicial arbiter – be he judge or magistrate – to give his
reasons in his written grounds of judgment for requiring an
accused to make his defence.
[12] After the amendments to ss. 173(f) and 180 of the CPC,
H the statutory test has been altered. What is required of a
Subordinate Court and the High Court under the amended
sections is to call for the defence when it is satisfied that a prima
facie case has been made out at the close of the prosecution case.
This requires the court to undertake a maximum evaluation of the
I prosecution evidence when deciding whether to call on the
accused to enter upon his or her defence. It involves an
13
assessment of the credibility of the witnesses called by the A

prosecution and the drawing of inferences admitted by the
prosecution evidence. Thus, if the prosecution evidence admits of
two or more inferences, one of which is in the accused’s favour,
then it is the duty of the court to draw the inference that is
favourable to the accused. See, Tai Chai Keh v. Public Prosecutor B
[1948-49] MLJ Supp 105; Public Prosecutor v. Kasmin bin Soeb
[1974] 1 MLJ 230. If the court, upon a maximum evaluation of
the evidence placed before it at the close of the prosecution case,
comes to the conclusion that a prima facie case has not been
made out, it should acquit the accused. If, on the other hand, the C
court after conducting a maximum evaluation of the evidence
comes to the conclusion that a prima facie case has been made
out, it must call for the defence. If the accused then elects to
remain silent, the court must proceed to convict him. It is not
open to the court to then re-assess the evidence and to determine D
whether the prosecution had established its case beyond a
reasonable doubt. The absence of any evidence from the accused
that casts a reasonable doubt on the prosecution’s case renders
the prima facie case one that is established beyond a reasonable
doubt. Put shortly, what the trial court is obliged to do under ss. E
173(f) and 180 of the CPC is to ask itself the question: If the
accused elects to remain silent, as he is perfectly entitled to do,
am I prepared to convict him on the evidence now before me?
See, Dato’ Mokhtar bin Hashim & Anor v. Public Prosecutor [1983]
2 MLJ 232. If the answer to that question is in the affirmative, F
then the defence must be called. And if the accused remains
silent, he must be convicted. If the answer is in the negative, then
the accused must be acquitted.
[13] In Public Prosecutor v. Dato’ Seri Anwar bin Ibrahim (No 3) G

[1999] 2 CLJ 215, Augustine Paul J described what a prima facie
case is in the following terms:
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 H
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 I
supposition that those facts existed or did happen. As this
14
A 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.
[14] The judgment in that case was subjected to scrutiny both

B
by the Court of Appeal and this court. See, [2000] 2 CLJ 695
and [2002] 3 CLJ 457. Neither court criticised the above quoted
passage as being an incorrect interpretation of s. 180 of the CPC.
Further, the Court of Appeal in Looi Kow Chai & Anor v. Public
Prosecutor [2003] 1 CLJ 734 expressly approved and preferred the
C
test in Public Prosecutor v. Dato’ Seri Anwar bin Ibrahim (No 3) to
the test formulated in the other cases decided by the High Court.
As such, we have no hesitation in affirming the test formulated by
the Court of Appeal in Looi Kow Chai.
D [15] For the guidance of the courts below, we summarise as
follows the steps that should be taken by a trial court at the close
of the prosecution’s case:
(i) the close of the prosecution’s case, subject the evidence led
E by the prosecution in its totality to a maximum evaluation.
Carefully scrutinise the credibility of each of the prosecution’s
witnesses. Take into account all reasonable inferences that
may be drawn from that evidence. If the evidence admits of
two or more inferences, then draw the inference that is most
F 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
G
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,
H then convict;
(iv) after defence is called, the accused elects to give evidence,

then go through the steps set out in Mat v. Public Prosecutor
[1963] MLJ 263.
I
[16] In the present case, the evidence led by the prosecution is
as follows. On 20 December 1991 at about 2pm Superintendent
of Customs Mohd Pudzi (PW2) briefed his men and divided them
15
up into three groups. On his instructions, the first group took A

position near Malayan Banking Padang Besar, while the second
group took position near the Padang Besar mosque. The third
group led by PW2 took position in front of Taman Imigresyen,
Padang Besar. At about 2.30pm, PW2 received a call on his
walkie-talkie from one of his officers, Abdul Rahman, a member of B
the first group. Abdul Rahman told PW2 that he had spotted
what he suspected to be motor cycle number PBE 8922 outside
a shop called “Khoon Teng” which was in the same row of shops
as Malayan Banking. About an hour later, at about 3.30pm, PW2
received another call from Abdul Rahman, this time informing him C
that two males had approached the target motorcycle and
mounted it. PW2 was given a brief description of the two men.
About 5 minutes later, PW2 saw the target motorcycle overtaking
a lorry and proceeding from the direction of Padang Besar towards
Kangar. At that point, PW2 and another Customs personnel, D
Shariffudin, walked up to the centre white line on the road.
Shariffudin held up a sign that read “Stop Customs” (‘Berhenti
Kastam’). PW2 then noticed that the target motorcycle was no
longer overtaking the lorry. As the lorry passed PW2 and
Shariffudin, PW2 saw the motorcycle make a “U turn” and head E
back to Padang Besar. At the same time the pillion rider of the
motor cycle leapt from the motorcycle and began to run away.
After a short pursuit, both the rider, the respondent, and the
pillion rider, Saiful, were apprehended. Four packages were
recovered from the respondent. They were found to contain a F
substance, which on subsequent examination by the chemist
(PW1), was found to be 342.1 grams of cannabis. Later, the
respondent was, as we have said at the commencement of this
judgment, charged with an offence under s. 39B(1)(a) of the Act,
convicted and sentenced to death. G
[17] The notes of evidence recorded by the learned judge include

the submissions of both the deputy public prosecutor and defence
counsel. However, there is nothing in those notes to indicate the
basis on which the prosecution was seeking a conviction of the H
respondent. There is no note of a submission that the prosecution
was relying on the evidence as establishing a case of actual
trafficking. Neither is there any note of a submission that the
prosecution was relying on the presumption of trafficking under
s. 37(da) of the Act. However, what is amply clear from the I
judgment of the learned judge is that he convicted the respondent
on the basis of s. 37(d) of the Act read with s. 37(da) of the
16
A Act. In other words, he first held the respondent to be in

presumed possession of the proscribed drug within s. 37(d) of the
Act and then proceeded to hold that such possession was
sufficient to raise the presumption of trafficking under s. 37(da) of
the Act. After a brief review of the defence evidence, he concluded
B that the respondent had failed to rebut the presumption of
trafficking. He accordingly entered a conviction.
[18] The majority of the Court of Appeal in the present case held
that this approach to the case by the learned trial judge amounted
C to a misdirection. That court therefore set aside the conviction for
trafficking under s. 39B(2) and substituted it with a conviction
under section under s. 6 and punishable under s. 39A(2) of the
Act. It also set aside the sentence of death and instead imposed
18 years’ imprisonment from the date of arrest and ten strokes of
D whipping.
[19] In his judgment, Mokhtar Sidin JCA, took the view that it
offended the principle laid down in the decision in Muhammed bin
Hassan v. Public Prosecutor [1998] 2 CLJ 170. That principle has
come to be known as the rule against double presumptions or the
E
rule against a presumption upon a presumption. The principle is
simply this. The presumed possession under s. 37(d) of the Act is
not the “possession” referred to in s. 37(da) of the Act. The
phrase “found in possession” in s. 37(da) refers to actual
possession. Hence, where the prosecution intends to rely on the
F
presumption under s. 37(da), it is necessary for it to prove by
positive evidence – and not by the presumption under s. 37(d) –
all the ingredients of possession in law. If there is a failure to prove
those ingredients, then the prosecution would fail to establish a
case of trafficking through the vehicle of s. 37(da).
G
[20] Now, as to what the ingredients of possession in law has
been established by a long line of cases. We find it unnecessary
to discuss all of them here. Suffice that we refer to two of them.
In Toh Ah Loh & Mak Thim v. Rex [1949] 15 MLJ 54, Gordon-
H Smith Ag CJ when delivering judgment of the Singapore Court of
Appeal explained the meaning in law of the word “possession”
when appearing in a statute. His lordship said:
Possession, in order to incriminate a person, must have the
I following characteristics. The possessor must know the nature of
the thing possessed, must have in him a power of disposal over
the thing, and lastly must be conscious of his possession of the
17
thing. If these factors are absent, his possession can raise no A

presumption of mens rea, without which (except by statute)
possession cannot be criminal.
[21] The second is Saad Ibrahim v. Public Prosecutor [1968] 1 MLJ

158 where Yong J stressed the necessity of establishing the
B
ingredient of knowledge on the part of an accused before he
could be incriminated with possession. His Lordship there said:
In my opinion mere possession is one thing and possession with
mens rea is another. Possession which incriminates must have
certain characteristics. The possessor must be aware of his C
possession, must know the nature of the thing possessed and
must have the power of disposal over it. Without these
characteristics possession raises no presumption of mens rea.
Without mens rea possession cannot be criminal except in certain
cases created by statute, which is not applicable in this case.
D
[22] We would also mention the learned judgment of Lim Beng
Choon J in Public Prosecutor v. Badrulsham bin Baharom [1988] 2
MLJ 585, which contains a full discussion of the several cases on
the point.
E
[23] We accept these authorities as correctly stating the law. It
follows that where the prosecution seek to prove trafficking by
relying on s. 37(da), it must to prove at the trial, all the
ingredients of possession set out in the cases of Toh Ah Loh and
Mak Thim and Saad Ibrahim. F
[24] That brings us to the instant appeal. Here, the direction by

the High Court in its judgment is not in accordance with
Muhammed bin Hassan. That is through no fault of the learned
judge. His decision in the present case was handed down long
G
before Muhammed bin Hassan was decided. But a decision of this
court – or indeed of any court – is retrospective in effect unless a
specific direction of prospectivity is expressed.
[25] As was stated by the Court of Appeal in its judgment in

Abdillah bin Labo Khan v. Public Prosecutor [2002] 3 CLJ 521: H
It is a fundamental principle of adjudicative jurisprudence that all

judgments of a court are retrospective in effect. In the United
States, in respect of constitutional matters, that is to say, where
a statute is declared unconstitutional, the power to declare such a
I
ruling to be prospective only was asserted in 1965 in the case of
Linkletter v. Walker [1965] 381 US 618 (at p 628). That principle
has been adopted into our jurisprudence in PP v. Dato’ Yap Peng
[1987] 2 MLJ 311, where, at pp 320-321, Abdoolcader SCJ said:
18
A The general principle of retroactivity of a judicial declaration

of invalidity of a law was overturned by the Supreme Court
of the United States of America in Linkletter v. Walker [1965]
381 US 618 (at p 628) when it devised the doctrine of
prospective overruling in the constitutional sphere in 1965
as a practical solution for alleviating the inconveniences
B
which would result from its decision declaring a law to be
unconstitutional, after overruling its previous decision
upholding its constitutionality. This doctrine was applied by
the Supreme Court of India in LC Golak Nath v. State of
Punjab & Anor AIR [1967] SC 1643 (at pp 1666-1669).
C The doctrine – to the effect that when a statute is held to
be unconstitutional, after overruling a long standing current
of decisions to the contrary, the court will not give
retrospective effect to the declaration of unconstitutionality
so as to set aside proceedings of convictions or acquittals
which had taken place under that statute prior to the date
D
of the judgment which declared it to be unconstitutional,
and convictions or acquittals secured as a result of the
application of the impugned statute previously will
accordingly not be disturbed – can be applied by the
Supreme Court as the highest court of the country in a
E matter arising under the Constitution to give such
retroactive effect to its decision as it thinks fit to be
moulded in accordance with the justice of the cause or
matter before it – to be adhibited however with
circumspection and as an exceptional measure in the light
of the circumstances under consideration.
F
In England, this doctrine has been recognized by the House
of Lords by necessary implication in the Practice Statement
(Judicial Precedent) Vol 123 DLR (Third) 554 issued by
Lord Gardiner LC on behalf of himself and the Lords of
G Appeal in Ordinary on 26 July 1966. More recently, in
Jones v. Secretary of State for Social Services [1972] AC 944,
two judges of the House of Lords, Lord Diplock (at p
1015) and Lord Simon of Glaisdale (at p 1026) were
prepared to consider the application of the American
doctrine of prospective overruling to England. In Choice
H Investments Ltd v. Jeromnimon [1981] 2 WLR 80, Lord
Denning MR in his judgment in the English Court of
Appeal (at p 84) accepted the subsistence and application of
the doctrine. In Defrenne v. Sabena [1981] 1 All ER 122,
the Court of Justice of the European Communities applied
I the doctrine of prospective overruling predicated on
conditions of legal certainty which required the court, as an
exceptional measure, to declare the law for the future only.
19
Although Linkletter v. Walker and PP v. Dato’ Yap Peng concerned A

the constitutionality of statutes, the same principle applies to
decisions in other areas of the law. This appears sufficiently from
the cases of Jones v. Secretary of State for Social Services and Another
Appeal [1972] AC 944 and Choice Investments Ltd v. Jeromnimon
and Another Appeal [1981] 2 WLR 80, both of which are referred
B
to in the passage above quoted.
The Federal Court could, therefore, if it had so wished, have

declared its decision in Muhammed bin Hassan to be of
prospective effect only. Had it done so, then cases decided under
the former misconception about the way in which ss. 37(d) and C
(da) of the Act were to be applied would not have been available
for correction on appeal. But that is not what happened. The
decision in Muhammed bin Hassan consequently falls under the
general doctrine of retrospectivity and it therefore applies to the
present case. We therefore are bound to apply it.
D
[26] Very recently, the House of Lords has had to consider the
doctrine of prospective overruling in National Westminster Bank plc
v. Spectrum Plus Limited [2005] UKHL 41. The House was agreed
that it had the power to overrule prospectively. Lord Nicholls of
Birkenhead explained the operation of prospective overruling in E
terms which are relevant to the instant appeal. He said:
A court ruling which changes the law from what it was previously
thought to be operates retrospectively as well as prospectively.
The ruling will have a retrospective effect so far as the parties to
F
the particular dispute are concerned, as occurred with the
manufacturer of the ginger beer in Donoghue v. Stevenson [1932]
AC 562. When Mr Stevenson manufactured and bottled and sold
his ginger beer the law on manufacturers’ liability as generally
understood may have been as stated by the majority of the
Second Division of the Court of Session and the minority of G
their Lordships in that case. But in the claim Ms Donoghue
brought against Mr Stevenson his legal obligations fell to be
decided in accordance with Lord Atkin’s famous statements.
Further, because of the doctrine of precedent the same would be
true of everyone else whose case thereafter came before a court.
H
Their rights and obligations would be decided according to the law
as enunciated by the majority of the House of Lords in that case
even though the relevant events occurred before that decision was
given.
People generally conduct their affairs on the basis of what they

I
understand the law to be. This ‘retrospective’ effect of a change
in the law of this nature can have disruptive and seemingly unfair
consequences. ‘Prospective overruling’, sometimes described as
20
A ‘non-retroactive overruling’, is a judicial tool fashioned to mitigate

these adverse consequences. It is a shorthand description for court
rulings on points of law which, to greater or lesser extent, are
designed not to have the normal retrospective effect of judicial
decisions.
B Prospective overruling takes several different forms. In its simplest
form prospective overruling involves a court giving a ruling of the
character sought by the bank in the present case. Overruling of
this simple or ‘pure’ type has the effect that the court ruling has
an exclusively prospective effect. The ruling applies only to
C transactions or happenings occurring after the date of the court
decision. All transactions entered into, or events occurring, before
that date continue to be governed by the law as it was conceived
to be before the court gave its ruling.
Other forms of prospective overruling are more limited and

D ‘selective’ in their departure from the normal effect of court
decisions. The ruling in its operation may be prospective and,
additionally, retrospective in its effect as between the parties to the
case in which the ruling is given. Or the ruling may be
prospective and, additionally, retrospective as between the parties
in the case in which the ruling was given and also as between
E
the parties in any other cases already pending before the courts.
There are other variations on the same theme.
[27] So too here. When the learned judge at first instance tried
the respondent and handed down his decision, Muhammed bin
F Hassan was yet to be decided. However, the judgment of this
court in Muhammed bin Hassan had been handed down before the
respondent’s appeal against his conviction was heard by the Court
of Appeal. It then became necessary for the Court of Appeal, in
accordance with the principles adverted to by Lord Nicholls in
G Spectrum Plus, to apply Muhammed bin Hassan to this case. It is
in this way that the declaration of the common law by a superior
court operates retrospectively.
[28] In our judgment, Mokhtar Sidin JCA, speaking for the

H majority, was therefore correct in applying Muhammed bin Hassan
and in holding that the High Court had misdirected itself. But that
is not the end of the matter. The learned deputy who appeared
before us argued that this is a case in which the finding of the
learned trial judge ought to be restored based on the evidence in
I the record of appeal. This was the course adopted by KC Vohrah
JCA in his minority judgment and we were urged to follow suit.
Much reliance was also placed by the learned deputy on the
judgment of this court in Tunde Apatira & Ors v. Public Prosecutor
21
[2001] 1 CLJ 381 in support of his submission. With respect, A

there are three reasons why we find ourselves unable to agree
with the submissions of the learned deputy.
[29] First, the evidence that is relied on by the learned deputy is

less than confidence inspiring. The two main pieces of evidence B
relied on by him are the flight of the respondent from the scene
and the finding of the four wrapped packages on his person. But,
as pointed out by the learned President of the Court of Appeal
(now Chief Justice) to the learned deputy during the course of
argument, both these circumstances, even when taken together, C
do not go to prove trafficking. As to flight, it must be borne in
mind is this is not by itself proof of a guilty mind. The point has
been made more than once and we find it sufficient to quote the
following passage in the judgment of Edgar Joseph Jr. SCJ in
Abdullah Zawawi bin Yusoff v. Public Prosecutor [1993] 4 CLJ 1: D
An innocent man faced with the prospect of arrest on a capital

charge might foolishly react in that way. It is true that the
appellant himself denied running away but we agree with the judge
that the appellant lied on this point, but this does not preclude us
from drawing such inferences as may be justified from the E
evidence adduced by the prosecution. The Jamaican Privy Council
case of DPP v. Brooks [1974] 2 All ER 840, cited to us by the
learned deputy public prosecutor, where the accused, who
occupied the driver’s seat of a stationary van which contained
more than 1000 lbs of ganja, together with several others in the
F
van, scrambled out and ran off, when police officers hurried
towards the van, is, therefore, readily distinguishable.
[30] When the recovery of the packages is taken together with

the evidence of flight, two inferences are reasonably possible.
Either the respondent knew that the packages contained cannabis G
in excess of the statutory minimum or he thought that they
contained some other contraband goods. In those circumstances,
the established principle is that the inference most favourable to
the respondent must be drawn. In other words, the prosecution
had failed to prove beyond a reasonable doubt that the H
respondent knew the nature of the thing possessed which is a vital
element of the ingredient of possession in the presumption under
s. 37(da). This point was squarely put by the learned Chief Justice
to the learned deputy during argument but no response was
forthcoming. I
22
A [31] We were then invited by the learned deputy to make our

own findings on the evidence and to restore the conviction
entered by the learned trial judge on the basis of the proviso to
s. 92(1) of the Courts of Judicature Act 1964. Reliance was
placed on the decision of this Court in Tunde Apatira (supra).
B
[32] Now, it settled law that it is no part of the function of an
appellate court in a criminal case – or indeed any case – to make
its own findings of fact. That is a function exclusively reserved by
the law to the trial court. The reason is obvious. An appellate
C court is necessarily fettered because it lacks the audio-visual
advantage enjoyed by the trial court.
[33] The further principle established by this court in Muhammed

bin Hassan v. Public Prosecutor is that where s. 37(da) is relied on
by the prosecution, it is for the trial court to make a specific
D
finding that the accused was in possession in the legal sense. In
the absence of such a finding, it is not open to an appellate court
to fill the gap and make the finding. A suggestion by counsel for
the prosecution that this court in entitled to make its own findings
of fact was firmly rejected. In that case Chong Siew Fai CJ
E
(Sabah & Sarawak) said:
As regards the alternative submission of the learned deputy public
prosecutor that, independently of s. 37(d), there was sufficient
evidence of possession of the cannabis on the part of the
F appellant, all we need to say is that on the evidence, the learned
trial judge did not make a finding of possession (ie possession as
understood in criminal law) either factually or by way of inference.
We, at the appellate stage, not having had the opportunity of
observing the witnesses in giving evidence, did not consider it
appropriate and safe to arrive at any conclusion in this regard.
G
[34] Now, Muhammed bin Hassan was a case of a first appeal
from the High Court to this court exercising the powers of the
former Supreme Court under s. 17 of the Courts of Judicature
(Amendment) Act 1995 (Act A909). If the principle adverted to a
H moment ago holds good in a first appeal, it applies with greater
force in a second appeal. To put the matter beyond any doubt,
we state that it is not the function of this court to make primary
findings of fact. Of course, we may examine the record to see if
the trial court drew the proper inferences from proved or admitted
I facts. But is quite a different principle and has no application to
the present instance.
23
[35] We now turn to the invitation to apply the proviso on the A

basis that it was done in Tunde Apatira. That case discussed some
of the authorities in which the proviso was considered. Tunde
Apatira was an exceptional case and this court said so in its
judgment. It was an exceptional case because the totality of the
evidence at the trial in that case reasonably supported the B
conclusion that the appellants were in “possession with mens rea”
– the expression used by Lim Beng Choon J in Badrulsham bin
Baharom which we approve – of the proscribed drug at the
material time. Further, the facts as found by the trial judge in that
case were affirmed by the Court of Appeal. Thus, it was a case C
where there were concurrent findings of fact on the issue of
possession with mens rea. In accordance with well established
principles, this court does not interfere with concurrent findings of
fact. The only point argued in Tunde Apatira was the correctness
of the decision in Muhammed bin Hassan. And this court re- D
affirmed its decision in that case. On the basis of the concurrent
findings of fact in that case, no miscarriage of justice was
occasioned to the accused in applying the proviso. As happens in
many criminal cases, Tunde Apatira was a case decided on its own
peculiar facts. Counsel on both sides of the bar are therefore E
discouraged from treating it as laying down any new principle.
[36] With respect, it is here, in our view that Vohrah JCA fell
into error. For, his minority judgment when read as whole, does,
with respect, make findings not made by the learned trial judge. F
Further, we are also respectfully of the view that the dissent fails
to appreciate the exceptional circumstances of Tunde Apatira to
which we have already drawn attention.
[37] For these reasons, we must regretfully decline the invitation

G
of learned deputy to make our own findings of fact and to apply
the proviso.
[38] Before we conclude, there is one final matter that requires

mention. In the present case, the application by the learned trial
judge of the double presumption formula appears in the main to H
have been caused by the prosecution’s failure to specify whether
it proposed to prove actual trafficking or whether it proposed to
rely on the presumption under s. 37(da) of the Act. We find this
a common occurrence in prosecutions for trafficking under the Act.
Trial judges and defence counsel are most often left guessing until I
24
A the very end of the trial as to whether the prosecution is relying

on direct evidence to prove trafficking or whether they seek to
rely on the presumption under s. 37(d) or s. 37(da) of the Act.
[39] In our view, the problem is easily solved by the prosecution

B intimating to the defence and to the court at the first available
opportunity if its case is one of actual trafficking or if it intends to
rely on a presumption to establish trafficking and, if the latter be
the case, to identify the precise presumption. This could be done
either before the commencement of the trial or as part of the
C opening speech and would go a long way in assisting the defence
in directing its cross examination along appropriate lines and
thereby avoiding a waste of the court’s time. See, Public Prosecutor
v. Chia Leong Foo [2000] 4 CLJ 649, applying Public Prosecutor v.
Okonkwo & Anor [1993] 3 SLR 610.
D
[40] In conclusion, we find ourselves in agreement with and
uphold the order of the majority of the Court of Appeal both in
respect of the conviction entered and the sentence passed.
I
25
a LOOI KOW CHAI & ANOR

v.
PP
b COURT OF APPEAL, KUALA LUMPUR

GOPAL SRI RAM JCA
ALAUDDIN MOHD SHERIFF JCA
RICHARD MALANJUM JCA
[CRIMINAL APPEAL NO: B-05-47-2000]
28 OCTOBER 2002
c
CRIMINAL LAW: Dangerous Drugs Act 1952 - Section s. 39B(1)(a) -
Trafficking in heroin and monoacetylmorphines - Amendment of charge to
s. 39A(2) by trial judge at close of prosecution case, whether proper - Whether
accused should have been called to enter defence - Evaluation of evidence
d by trial judge, whether correct - Quantity and transportation of drugs -
Conduct and demeanour of accused persons - Evidence of chemist - Prima
facie case of trafficking, whether made out
EVIDENCE: Expert evidence - Evidence of chemist - Analysis of substances
suspected to be dangerous drugs - Principles governing reception of chemist’s
e
evidence by court - Whether can be accepted at face value - Rebuttal evidence
from another chemist and cross-examination - Whether chemist must give
precise details of laboratory analysis conducted - Sufficiency of representative
samples taken for analysis - Failure of chemist to state weight of representative
samples analysed - Dangerous Drugs Act 1952
f
CRIMINAL LAW: Dangerous Drugs Act 1952 - Section s. 39B(1)(a) -
Trafficking in a dangerous drug - Evidence of chemist - Analysis of substances
suspected to be dangerous drugs - Principles governing reception of chemist’s
evidence by court - Whether can be accepted at face value - Rebuttal evidence
g from another chemist and cross-examination - Whether chemist must give
precise details of laboratory analysis conducted - Sufficiency of representative
samples taken for analysis - Failure of chemist to state weight of representative
samples analysed
CRIMINAL PROCEDURE: Prima facie case - Meaning of - Principles
h applicable - Whether judge sitting alone must conduct maximum evaluation
of prosecution’s evidence - Whether maximum evaluation means ‘beyond
reasonable doubt’ - Whether judge must convict if accused remains silent at
close of prosecution case - Whether minimal evaluation and two-tier test still
applicable - Criminal Procedure Code (Revised 1999), s. 180
i
CLJ
26
[2003] 1 CLJ Looi Kow Chai & Anor v. PP 735
CRIMINAL PROCEDURE: Trial - Close of prosecution’s case - Duty of trial a

judge - Whether judge sitting alone must conduct maximum evaluation of
prosecution’s evidence - Whether maximum evaluation means ‘beyond
reasonable doubt’ - Whether judge must convict if accused remains silent at
close of prosecution case - Whether minimal evaluation and two-tier test still
applicable - Criminal Procedure Code (Revised 1999), s. 180 b
The 1st and 2nd accused were charged in the High Court with trafficking in
dangerous drugs (299.51g of heroin and 105.58g of monoacetylmorphines) under
s. 39B(1)(a) of the Dangerous Drugs Act 1952 (‘DDA’). At the close of the
case for the prosecution, the trial judge held that the charge of trafficking had
not been made out and proceeded to amend the charge to one under s. 39A(2) c
of the DDA. Both the accused were subsequently convicted on the amended
charge. The instant appeals before the Court of Appeal were: (1) by the 2nd
accused against his conviction on the amended charge; and (2) by the
prosecution against the decision of the trial judge to amend the original charge
against the 2nd accused and to convict him on the reduced charge. With the d
consent of both parties, the prosecution’s appeal was heard first because, if
allowed, it would render the 2nd accused’s appeal academic.
In submitting that the 2nd accused should have been called upon to enter on
his defence on the original charge of trafficking, the prosecution contended that
e
the trial judge had failed to consider (and draw the proper inferences from):
(i) the quantity or weight of the dangerous drugs involved, which was 27 times
greater than the statutory minimum required to activate the presumption of
trafficking under s. 37(da)(iiia) of the DDA; (ii) the physical transportation of
the dangerous drugs by the 2nd accused from another place to the scene of
the incident; and (iii) the conduct or collaborative demeanour of the 1st and f
2nd accused taken together, eg, the tacit removal of the bag containing the 20
packets of dangerous drugs by the 1st accused from the boot of the car driven
by the 2nd accused.
On the other hand, the 2nd accused submitted that there were four fatal flaws g
pertaining to the chemical analysis of the substances undertaken by the chemist,
viz that: (i) the samples taken by the chemist were insufficient; (ii) the chemist
did not take at least three random representative samples from each packet of
each substance; (iii) the chemist did not carry out any procedure to ascertain
that the substance was sufficiently homogenised; and (iv) the chemist did not
h
state the weight of the representative samples.
CLJ
27
a Held:
Per Gopal Sri Ram JCA
[1] The facts and circumstances in the instant appeals (relating to the
chemical analysis of the substances undertaken by the chemist as well
as his evidence in respect thereof given before the High Court) were
b
readily distinguishable from those in the cases of PP v. Ang Soon Huat
[1991] 1 MLJ 1 HC (Sing) and Loo Kia Meng v. PP [2000] 3 CLJ
653 CA. Unlike in the instant appeals, the chemist in PP v. Ang Soon
Huat was subjected to rigorous cross-examination and his evidence was
contradicted by rebuttal evidence from the chemist called by the defence.
c And, unlike in Loo Kia Meng v. PP, the chemist in the instant appeals
had analysed the entire contents of the 20 packets of the seized substances
(ie, 100% and not only a percentage thereof). (pp 744 f-g & 745 d-g)
[1a] Where the opinion of a chemist is confined only to the elementary nature
d and identity of a substance, the court is entitled to accept the opinion of
that chemist on its face value, unless it is inherently incredible or the
defence calls evidence in rebuttal by another expert to contradict the
opinion. So long as some credible evidence is given by the chemist to
support his opinion, there is no necessity for him to go into the details
of what he did in the laboratory, step by step. (Munusamy Vengadasalam
e
v. PP [1987] 1 CLJ 250 SC and PP v. Lam San [1991] 3 CLJ 2410
SC followed.) (pp 744 h & 745 a-c)
[2] At the conclusion of its case, the prosecution had made out a prima facie
case of trafficking against the 2nd accused. It had shown, prima facie,
f that the 2nd accused brought the dangerous drugs from another place to
the scene of the incident, and that he either assisted or was involved,
directly or indirectly, in conveying the drugs to the 1st accused. (Ong
Ah Chuan v. PP [1981] 1 MLJ 64 PC (Sing) and Chow Kok Keong v.
PP [1998] 2 CLJ 469 FC followed.) Had the trial judge applied the
g ‘prima facie’ test as formulated in s. 180 of the Criminal Procedure Code
(Revised 1999) at the close of the case for the prosecution, he would
have called upon the 2nd accused to enter on his defence on the original
charge of trafficking. (pp 743 a-c, 746 a-c, 748 f & 757 c)
[3] Under s. 180 of the Criminal Procedure Code (Revised 1999), the duty
h of a judge, sitting alone, at the close of the case for the prosecution, is
to determine, as a trier of fact, whether the prosecution has made out a
prima facie case against the accused. The judge has only one exercise
to undertake; he must subject the evidence of the prosecution to a
maximum evaluation and then ask himself this question: If I decide to
i call upon the accused to enter on his defence, and he elects to remain
CLJ
28
silent, am I prepared to convict him on the totality of the evidence a

contained in the prosecution’s case? If the answer is in the negative, then
no prima facie case has been made out, and the accused is entitled to
an acquittal. (Subjecting the prosecution’s evidence to a maximum
evaluation to determine if the defence is to be called does not mean that
the prosecution has to prove its case beyond a reasonable doubt at that b
intermediate stage.) (pp 749 c, g-h, 751 d-e & 752 a-d)
[3a] Consequently, a judge is not to undertake an initial minimal evaluation
of the prosecution’s evidence (followed by a maximum re-evaluation if
the accused elects to remain silent) under s. 180 of the Criminal
Procedure Code (Revised 1999). The following cases were, to this extent, c
wrongly decided: PP v. Krishna Rao Gurumurthi & Ors [2000] 1 CLJ
446 HC; PP v. Sukumaran Sudram [1999] 4 CLJ 242 HC. Conversely,
the following cases correctly state the law as it presently stands: PP v.
Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 CLJ 215 HC; PP v. Ong
Cheng Heong [1998] 4 CLJ 209 HC; PP v. Saare Hama & Anor [2001] d
4 CLJ 475 HC. (pp 754 d-h, 755 a-h, 756 a-d & 757 a-b)
[Prosecution’s appeal allowed; trial judge directed to call upon 2nd accused
to enter on his defence on charge of trafficking.]
[Bahasa Malaysia Translation Of Headnotes e
Tertuduh pertama dan kedua dituduh di Mahkamah Tinggi dengan kesalahan

mengedar dadah berbahaya (299.51 gram heroin dan 105.58 gram
monoacetylmorphines) di bawah s. 39B(1)(a) Akta Dadah Berbahaya 1952
(‘Akta’). Di akhir kes pendakwaan, hakim bicara memutuskan bahawa kesalahan f
mengedar gagal dibuktikan dan berikutnya beliau telah meminda pertuduhan
kepada pertuduhan di bawah s. 39A(2) Akta. Kedua-dua tertuduh kemudian
disabitkan atas pertuduhan terpinda. Rayuan-rayuan ke Mahkamah Rayuan ini
adalah: (i) oleh tertuduh kedua terhadap sabitannya atas pertuduhan terpinda;
dan (ii) oleh pendakwaan terhadap keputusan hakim bicara meminda pertuduhan
g
asal terhadap tertuduh kedua dan mensabitkannya atas pertuduhan terpinda
tersebut. Kedua-dua pihak bersetuju supaya rayuan pendakwaan didengar dahulu
oleh kerana, jika dibenarkan, ianya akan menyebabkan rayuan tertuduh kedua
menjadi akademik.
Dalam hujahnya bahawa tertuduh kedua harus dipanggil untuk membela diri h
atas pertuduhan asal mengedar dadah berbahaya, pendakwaan menegaskan
bahawa hakim bicara telah gagal memberi pertimbangan kepada (serta
menzahirkan inferens-inferens sepatutnya dari): (i) kuantiti atau berat dadah
berbahaya yang terlibat, yang mana ianya 27 kali ganda melebihi had minima
statutori bagi membangkitkan anggapan mengedar di bawah s. 37(da)(iiia) Akta; i
CLJ
29
a (ii) pembawaan secara fizikal dadah berbahaya oleh tertuduh dari suatu tempat
lain ke tempat insiden; dan (iii) perlakuan atau tingkah laku sekongkolan
tertuduh pertama dan kedua, misalnya pengambilan termaklum beg mengandungi
dadah berbahaya oleh tertuduh pertama dari boot kereta yang dipandu tertuduh
kedua.
b
Tertuduh kedua, sebaliknya, berhujah bahawa terdapat empat kecacatan yang
memudaratkan berkenaan analisa kimia ke atas dadah yang dibuat oleh ahli
kimia, iaitu: (i) contoh yang diambil ahli kimia tidak mencukupi; (ii) ahli kimia
gagal mengambil tiga contoh representatif dari setiap bungkus setiap dadah
berkenaan; (iii) ahli kimia tidak menjalankan sebarang prosedur bagi menentukan
c bahawa dadah di‘homogenize’ secukupnya; dan (iv) berat contoh-contoh
representatif tidak dinyatakan oleh ahli kimia.
Diputuskan
Oleh Gopal Sri Ram HMR
d [1] Fakta dan halkeadaan rayuan-rayuan di sini (berkaitan analisa kimia yang
dibuat ahli kimia ke atas dadah serta keterangan beliau berkenaan
halperkara itu di Mahkamah Tinggi) dengan jelas boleh dibezakan dari
fakta dan halkeadaan di dalam kes-kes PP lwn. Ang Soon Huat [1991]
MLJ 1 HC (Sing) dan Loo Kia Meng lwn. PP [2000] 3 CLJ 653 CA.
e Berbeza dengan kes semasa, ahli kimia di dalam PP lwn. Ang Soon Huat
telah dihadapkan kepada satu pemeriksaan balas yang rapi dan
keterangannya telah disanggah oleh keterangan penepisan ahli kimia yang
dipanggil oleh pembelaan. Dan, berbeza dengan Loo Kia Meng lwn. PP,
ahli kimia di dalam rayuan-rayuan semasa ini telah menganalisa
f keseluruhan kandungan 20 bungkus dadah yang dirampas (iaitu 100%
dan bukannya sebahagian darinya).
[1a] Di mana pendapat ahli kimia hanya terhad kepada identiti dan sifat asas
dadah, mahkamah berhak untuk menerima pendapat pakar tersebut pada
dasarnya, kecualilah jika ianya langsung tidak masuk akal atau jika pihak
g
pembelaan memanggil keterangan penepisan oleh pakar lain yang
menyanggah pendapat tersebut. Selagi ahli kimia tersebut memberikan
keterangan yang dapat diterima bagi menyokong pendapatnya, tidak ada
keperluan baginya untuk menceritakan secara terperinci, langkah demi
langkah, apa yang beliau lakukan di makmal (Munusamy Vengadasalam
h v. PP [1987] 1 CLJ 250 SC dan PP lwn. Lam San [1991] 3 CLJ 2410
SC diikuti).
CLJ
30
[2] Di akhir kesnya, pendakwaan telah membuktikan suatu kes prima facie a
mengedar dadah terhadap tertuduh kedua. Secara prima facie, pendakwaan
telah membuktikan bahawa tertuduh kedua telah membawa dadah
berbahaya dari suatu tempat lain ke tempat berlakunya insiden, dan
bahawa beliau juga telah turut membantu ataupun terlibat, sama ada
secara langsung atau sebaliknya, dalam menghantar dadah kepada tertuduh b
pertama. (Ong Ah Chuan lwn. PP [1981] 1 MLJ 469 (Sing) dan Chow
Kok Keong lwn. PP [1998] 2 CLJ 469 FC diikuti). Jika hakim bicara
memakai ujian ‘prima facie’ sebagaimana ianya tergubal di dalam s. 180
Kanun Prosedur Jenayah (Dikaji 1999) di akhir kes pendakwaan, beliau
pastinya akan memanggil tertuduh kedua untuk membela diri atas c
pertuduhan asal mengedar dadah berbahaya.
[3] Di bawah s. 180 Kanun Prosedur Jenayah (Dikaji 1999), tanggungjawab

seseorang hakim, yang bersidang secara sendirian, di akhir kes
pendakwaan, adalah untuk menentukan, selaku pengadil fakta, sama ada
d
pendakwaan berjaya membuktikan suatu kes prima facie terhadap
tertuduh. Hakim hanya mempunyai satu pertimbangan untuk dibuat; beliau
mestilah mentaklukkan keterangan pendakwaan kepada suatu penilaian
maksima dan selepas itu menanya dirinya soalan ini: sekiranya aku
memutuskan untuk memanggil tertuduh untuk membela diri, dan dia
memilih untuk berdiam diri, adakah aku akan mensabitkannya berdasarkan e
keseluruhan keterangan yang dikemukakan oleh pendakwaan? Jika
jawapannya negatif, maka tiada kes prima facie dibuktikan, dan tertuduh
berhak untuk dibebaskan. (Mentaklukkan keterangan pendakwaan kepada
penilaian maksima untuk menentukan sama ada pembelaan patut dipanggil
tidak bermakna bahawa pendakwaan perlu membuktikan kesnya di luar f
keraguan munasabah di peringkat peralihan tersebut).
[3a] Ianya mengikut bahawa, seseorang hakim semestinyalah tidak boleh

membuat suatu penilaian awalan minima terhadap keterangan-keterangan
pihak pendakwaan (diikuti dengan penilaian maksima jika tertuduh g
memilih untuk berdiam diri) di bawah s. 180 Kanun Prosedur Jenayah
(Dikaji 1999). Kes-kes berikut, sehubungan itu, adalah telah disalah putus:
PP lwn. Krishna Rao Gurumurthi & Ors [2000] 1 CLJ 446 HC; PP
lwn. Sukumara Sudram [1999 4 CLJ 242 HC. Sebaliknya, kes-kes berikut
menyatakan kedudukan sebenar undang-undang semasa: PP lwn. Dato’ h
Seri Anwar Ibrahim [1998] 4 CLJ 209 HC; PP lwn. Saare Hama &
Anor [2001] 4 CLJ 475 HC.
Rayuan pendakwaan dibenarkan; hakim bicara diarah memanggil tertuduh
kedua untuk membela diri atas pertuduhan mengedar.]
i
CLJ
31
a Case(s) referred to:

Abdullah Zawawi Omar v. PP [1985] 2 CLJ 2; [1985] CLJ (Rep) 19 SC (refd)
Arulpragasan Sandaraju v. PP [1996] 4 CLJ 597 SC (refd)
Chow Kok Keong v. PP [1998] 2 CLJ 469 SC (foll)
Cohen Lorraine Phillis & Anor v. PP [1989] 2 CLJ 956; [1989] 1 CLJ (Rep) 18
SC (refd)
b Dato’ Mokhtar Hashim & Anor v. PP [1983] 1 CLJ 138; [1983] CLJ (Rep) 721
HC (foll)
Dato’ Seri Anwar Ibrahim v. PP [2002] 3 CLJ 457 FC (refd)
Haw Tua Tau v. PP [1981] CLJ 123; [1981] CLJ (Rep) 11 PC (refd)
Khoo Hi Chiang v. PP & Another Appeal [1994] 2 CLJ 151 SC (refd)
Loo Kia Meng v. PP [2000] 3 CLJ 653 CA (dist)
c
Munusamy Vengadasalam v. PP [1987] 1 CLJ 250; [1987] CLJ (Rep) 221 SC (foll)
Murray v. Director of Public Prosecutions [1994] 1 WLR 1 (foll)
Ong Ah Chuan v. PP [1981] 1 MLJ 64 (foll)
Pavone v. PP [1984] 1 MLJ 77 (refd)
PP v. Ang Soon Huat [1991] 1 MLJ 1 HC (dist)
d PP v. Dato’ Seri Anwar Ibrahim (No 3) [1999] 2 CLJ 215 HC (foll)
PP v. Kasmin Soeb [1974] 1 MLJ 230 (refd)
PP v. Krishna Rao Gurumurthi & Ors [2000] 1 CLJ 446 HC (ovrd)
PP v. Lam San [1991] 3 CLJ 2410; [1991] 1 CLJ (Rep) 391 SC (foll)
PP v. Mohan Singh [1999] 4 CLJ 620 HC (refd)
PP v. Ong Cheng Heong [1998] 4 CLJ 209 HC (foll)
e PP v. Saare Hama & Anor [2001] 4 CLJ 475 HC (foll)
PP v. Sukumaran Sudram [1999] 4 CLJ 242 HC (ovrd)
Tai Chai Keh v. PP [1948-49] MLJ Supp 105 (refd)
Tan Boon Kean v. PP [1995] 4 CLJ 456 SC (refd)
Teh Geok Hock v. PP [1989] 2 CLJ 977; [1989] 1 CLJ (Rep) 160 SC (refd)
f Legislation referred to:
Criminal Procedure Code, ss. 173(f), 180(1)
Dangerous Drugs Act 1952, ss. 37(da)(iiia), 39A(2), 39B
Penal Code, ss. 34, 411
For the appellants - Gurbachan Singh; M/s Bachan & Kartar
g For the respondent - Stanley Clement Augustin (Muhamad Iskandar Ahmad)
[Appeal from High Court, Shah Alam; Criminal Trial No: 47-11-1998]
Reported by Gan Peng Chiang

JUDGMENT
h (Oral)
Gopal Sri Ram JCA (judgment of the court):
There are two appeals before us. Both relate to the same subject matter. They
arise out of the conviction of the appellant before us (the second accused in
the court below) on a charge, amended by the court, under s. 39A(2) of the
i Dangerous Drugs Act 1952 (“the Act”).
CLJ
32
The Public Prosecutor has appealed, complaining that the conviction on the a
reduced charge under s.39A(2) was an error on the part of the court below.
The second accused has appealed to us on the ground that he ought not to
have been convicted of any offence whatsoever. To better understand these
appeals regard must be had to the facts. We will now narrate them.
b
On the morning of 12 August 1997 Chief Inspector Fisol bin Salleh (PW4)
received information that a transaction relating to dangerous drugs would be
taking place later that same day at the Kentucky Fried Chicken outlet at Jalan
Sulaiman, Kajang. PW4 then briefed a team of police officers. Later they all
proceeded to the scene and laid an ambush. This was at about 2.45pm that day.
c
The police divided themselves into three teams. They were all in plain clothes.
One of them took position inside the outlet. PW4 was in charge of this team.
Another police officer, PW3, together with a second team took their position
inside the car in which they had arrived at the scene. The third team placed
itself in the vicinity of the outlet. A short while later a motorcycle arrived. It d
was ridden by the first accused in the court below. He is now dead. He died
in prison after his conviction.
The first accused entered the outlet. A few minutes later he went out and was
observed by the police to be making a telephone call on his hand-phone. A
short while later a car arrived at the scene. It was a white Honda and bore e
Registration No. WAG 6341. The car in question stopped in front of an
optometrist’s shop. The second accused was driving the car. The first accused
then walked to the car. He was seen speaking to the second accused. The first
accused then went to the rear of the car and was observed by PW3 to remove
something from the boot of the car. PW3 was quite certain in his evidence f
that the boot was open at the time. He saw the first accused removing a bag
from it. The first accused then re-entered the outlet. He was then accosted and
placed under arrest by PW4 and his team. The bag he was carrying was seized.
It was found to contain two shirts, a newspaper and 20 packets of a pinkish
substance which on later chemical analysis was found to be 299.51gm of heroin g
and 105.58gm of monoacetylmorphine. At about the same time that the first
accused was placed under arrest, the second accused was also apprehended and
the car seized. Investigation revealed that the second accused was the registered
owner of the car. Both accused were later charged for trafficking in the
aforesaid drug contrary to s. 39B of the Act.
h
Based on the primary facts narrated above, the learned trial judge at the close
of the prosecution case held that a charge of trafficking had not been made
out. He accordingly amended the charge and convicted both accused of an
offence contrary to s. 39A(2) of the Act. It is against this decision that the
appeals to which we referred to in the opening paragraphs of this judgment i
have been preferred to us.
CLJ
33
a We heard arguments in respect of both these appeals on 10 October 2002.

Having carefully considered the record, we came to the conclusion that it would
be most convenient if the Public Prosecutor opened this appeal. We took this
course with the consent of the learned deputy and Mr. Gurbachan Singh of
counsel for the second accused and because we formed the view that if the
b Public Prosecutor was right in his complaint, then the second accused’s appeal
would be rendered academic.
Accordingly we invited learned deputy to present his arguments in support of
the Public Prosecutor’s appeal. Encik Stanley Augustin, the learned deputy,
argued that the judge had fallen into error in deciding as he did because he
c overlooked certain salient points in the prosecution’s case and failed to have
regard to the fair inferences that were to be drawn from the prosecution’s
evidence.
In support of his argument Encik Augustin drew our attention to three matters
which, he said were either completely overlooked by the learned trial judge or
d
not sufficiently considered by him. We will deal with each of these in turn.
The first concerns the weight of the drug in question. The drug involved in
the present case was of a particularly large quantity. Its weight is 27 times
greater than the statutory trigger provided by s. 37(da)(iiia). The point being
e made by the learned deputy is that people do not carry around such a large
quantity of drugs unless there was intention to purvey it to someone else.
The second point is this. The drugs were physically transported from some other
point to the scene of the incident. This act of transportation, argued the learned
deputy, is evidence from which trafficking in the drugs may reasonably be
f inferred.
Third and last, it was submitted that the conduct of the now deceased first
accused and the second accused when taken together pointed to both of them
being involved in the offence of trafficking. We have, when narrating the facts,
already set out in brief the conduct relied on by the learned deputy.
g
Take for example, the removal of the bag from the boot of the car. The totality
of the evidence of the police officers taking part in the raid irresistibly points
to the drugs being taken from the car of the second accused. Further, the act
of removal of the bag by the first accused from the boot of the second
accused’s car produced no adverse reaction from the latter. The prosecution
h
therefore says that this evidence denotes possession in its full legal sense in
the second accused. Nobody would consent to something being removed from
his car unless he wanted to transfer possession of that thing to the taker.
Accordingly, the learned deputy submitted that when all these circumstances
are marshalled and given their proper weight they reasonably support a case
i of trafficking.
CLJ
34
While hearing the Public Prosecutor’s appeal, we arrived at a very preliminary a

view on it. And this is what we then said in our address to Mr. Gurbachan
Singh of counsel for the second accused.
Based on Ong Ah Chuan v. Public Prosecutor [1981] 1 MLJ 64 we have
formed the preliminary view that on the facts narrated by the learned deputy,
a prima facie case of trafficking by the instant appellant has been disclosed. b
This is because, in brief, the instant appellant brought the drugs from another
place to the scene of the incident and either assisted or was involved directly
or indirectly in conveying those drugs to another person namely the deceased
appellant. That in our view, applying the common sense test formulated by
Lord Diplock in Ong Ah Chuan’s case read with the judgment of Edgar Joseph
c
Jr. FCJ in Chow Kok Keong v. Public Prosecutor [1998] 2 CLJ 469 points
to a case of trafficking. We therefore stop the learned deputy and call upon
you Mr. Gurbachan Singh to address us as to why this court should not allow
the Public Prosecutor’s appeal and remit the case to the High Court to call
for the defence of the appellant on a suitably amended charge that excises
all references to section 34 of the Penal Code. d
In the course of his arguments both in opposition to the Public Prosecutor’s
appeal and in support of the second accused’s appeal, learned counsel raised
a point about the chemist’s evidence. It was a point on which we thought some
material might be necessary, by way of decided cases. Accordingly at the joint
request of both the learned deputy and learned counsel we adjourned further e
hearing of this appeal to this morning to enable both sides to turn up the
authorities.
When the appeal came on for hearing this morning, learned counsel, Mr.
Gurbachan Singh, eloquently directed his arguments at what he said were f
infirmities in the chemist’s evidence. It is best we summarise his complaints.
There are four of these. First that the samples taken by the chemist were
insufficient. Second that the chemist should have taken at least 3 random
representative samples of each packet of each drug. Thirdly the chemist did
not conduct any test to see that the substance had been sufficiently homogenised.
g
He should have carried out 3 runs of 5 minutes each of the blender to
homogenise the substance. Fourthly, the chemist did not state the weight of
the representative sample and this created a reasonable doubt in the case for
the prosecution.
In support of these arguments learned counsel referred us to two authorities. h
The first of these is Public Prosecutor v. Ang Soon Huat [1991] 1 MLJ 1. It
is the judgment of Chan Sek Keong J, a judge whose views are entitled to
great respect. In Ang Soon Huat, the defendant was charged for trafficking in
18.77 gm of diamorphine. The chemist who gave evidence was subjected to
careful and rigorous cross-examination. From a reading of the report of that i
CLJ
35
a case, it appears that he made some very important concessions that impressed
the trial judges in that case. Additionally that defendant in that case called the
evidence of his own chemist in rebuttal. The cumulative evidence produced
before the court showed that the chemist was not up to the mark. Hence the
following comment by Chan Sek Keong J at p. 9 of the report:
b
For the above reasons, we accept the general criticism that the laboratory
procedures prevailing at the time the tests were done on the exhibit were not
sufficiently rigorous in terms of the standards required of scientific analysis
of drugs. We are constrained to agree with this criticism not only because
the highest standards of laboratory practice should be followed at all times
c in respect of any analysis, whatever its purpose may be, but particularly on
an occasion when, the result of the analysis was literally a matter of life and
death for the accused.
In that state of the evidence the court came to the following conclusion:
In the circumstances of the present case, we have decided that the proper
d
course for this court to take is not to accept the suggestion of counsel for
the accused as it lacks both logic and rationality, but to apply the principle
that where the court is, on the evidence, left in doubt as to whether the
accused has committed an offence in a lower or a higher degree of seriousness,
the court should make a finding in the lower degree, particularly in a case
e in which a finding in a higher degree will give rise to a mandatory sentence
of death. Accordingly, we find the accused guilty of trafficking in not less
than 10 g and not more than 15 g of heroin at the time and date stated in
the charge. We convict him accordingly.
In our view Ang Soon Huat is readily distinguishable from the present case.
f There the chemist, apart from being subjected to searching cross examination,
was also contradicted by rebuttal evidence. Nothing of that sort happened here.
As such we think that the present case comes within the principle governing
the appreciation of such evidence as enunciated by Mohd Azmi SCJ in
Munusamy Vengadasalam v. Public Prosecutor [1987] 1 CLJ 250; ([1987] CLJ
g (Rep) 221). It is an approach which has been affirmed and reaffirmed by our
apex court in later cases. Thus in Public Prosecutor v. Lam San [1991] 3
CLJ 2410; ([1991] 1 CLJ (Rep) 391) Hashim Yeop Sani CJ Malaya, one of
our most distinguished judges said at p. 2412 (p. 394):
As to how a trial court should approach the evidence of a chemist, we wish
h to advert to the judgment of this court in Munusamy Vengadasalam v. PP
where in a passage at p. 256 (p. 226), Mohamed Azmi SCJ on behalf of the
court put in focus the function of the chemist in a trial of this nature:
CLJ
36
We are therefore of the view, that in this type of cases where the a
opinion of the chemist is confined only to the elementary nature and
identity of a substance, the court is entitled to accept the opinion of
the expert on its face value, unless it is inherently incredible or the
defence calls evidence in rebuttal by another expert to contradict the
opinion. So long as some credible evidence is given by the chemist to
support his opinion, there is no necessity for him to go into details of b
what he did in the laboratory, step by step.
Two things are implicit in that passage. First, unless the evidence is so
inherently incredible that no reasonable person can believe it to be true, it
should be accepted as prima facie evidence. Secondly, so long as the evidence
is credible, there is no necessity for the chemist to show in detail what he c
did in his laboratory.
See also Khoo Hi Chiang v. Public Prosecutor & Another Appeal [1994] 2
CLJ 151 at p. 158.
Based on these authorities we find no merit in the first three complaints made d
of the chemist’s evidence by the second accused. None of the complaints now
made were put to the chemist and neither was there any rebuttal evidence called.
As regards the fourth complaint, learned counsel relied on the judgment of this
court in Loo Kia Meng v. Public Prosecutor [2000] 3 CLJ 653. It was there e
held that the failure by the chemist to state the precise weight of the sample
or samples taken by him from a particular drug is unsatisfactory and would
have the effect of creating a reasonable doubt in the accused’s favour. We are
entirely in agreement with the decision in that case. Indeed we have been
informed by Mr. Gurbachan Singh who was counsel in Loo Kia Meng that an
f
appeal in that case by the Public Prosecutor to the Federal Court failed.
The judgment of this court on that occasion was delivered by Shaik Daud JCA
a judge with vast experience on the subject of drug trafficking and whose views
are entitled to much weight. But the present case is a long way away from
Loo Kia Meng. For, here the chemist said as follows: g
I am aware of the percentage required for analysis under s.37(j) of DDA. In
this case I had analysed the entire 20 packets – ie, 100%.
Since the analysis here was 100% that is to say the whole quantity of the drug,
no question arises from the failure to take representative samples by weight. h
We would also add that in response to our learned brother Richard Malanjum
JCA learned counsel for the second accused frankly conceded that the word
“weight” appearing in the Act included calculated weight ie, the weight
calculated by the chemist.
i
CLJ
37
a Having considered the evidence led by the prosecution up to the close of its
case, we are in agreement with the learned deputy that this is a proper case
in which the defence upon the original charge of trafficking should have been
called. In arriving at this conclusion, we would hasten to add that what we
have said thus far is not to be construed as a direction to the learned judge to
b convict. We merely say that the defence should have been called on the charge
as originally framed by the Public Prosecutor.
We further agree with the learned deputy before us that if the common sense
approach set out by Lord Diplock in Ong Ah Chuan v. Public Prosecutor
[1981] 1 MLJ 64 had been adopted by the learned judge it would have resulted
c in the defence being called on the original charge. We remind ourselves of what
the learned Law Lord said in that case (at p. 69):
So, simply to transport from one place to another a quantity of a controlled
drug intended for one’s own consumption, if unauthorized by the Act or
Regulations, involves an offence of having the drug in one’s possession under
d
section 6 but does not amount to the offence of trafficking under section 3.
It is otherwise, however, if the transporter’s purpose, whether it is achieved
or not, is to part with possession of the drug or any portion of it to some
other person whether already known to him or a potential purchaser whom
he hopes to find. This is the consequence of section 10 of the Drugs Act and
e section 3(c) (which covers the same ground in part). These provisions make
the question whether the transporter of the drugs achieves that purpose
irrelevant to his guilt of the offence of trafficking under section 3; since they
provide that a person who does any act preparatory to, or in furtherance of,
or for the purpose of the commission of the offence of trafficking in a
controlled drug, shall be guilty of the substantive offence of trafficking and
f liable on conviction to the penalty provided for it under section 29 and the
Second Schedule.
This is a very wide description of acts that may be treated as equivalent to

the substantive offence of trafficking; nevertheless, in their Lordships’ view,
it is clear from the structure of the Drugs Act and the distinction drawn
g between the offence of having a controlled drug in one’s possession and the
offence of trafficking in it, that mere possession of itself is not to be treated
as an act preparatory to or in furtherance of or for the purpose of trafficking
so as to permit the conviction of the possessor of the substantive offence. To
bring the provisions of sections 10 and 39(c) into operation some further step
or overt act by the accused is needed, directed to transferring possession of
h the drug to some other person; and it is a consequence of the clandestine
nature of the drug trade and the means adopted for the detection of those
engaged in it, that the further step that the prosecution is most likely to be
able to prove in evidence is the act of the accused in transporting the drug
to some place where he intends to deliver it to someone else, whether it be
the actual consumer or a distributor or another dealer.
i
CLJ
38
Proof of the purpose for which an act is done, where such purpose is a a
necessary ingredient of the offence with which an accused is charged, presents
a problem with which criminal courts are very familiar. Generally, in the
absence of an express admission by the accused, the purpose with which he
did an act is a matter of inference from what he did. Thus, in the case of
an accused caught in the act of conveying from one place to another controlled
drugs in a quantity much larger than is likely to be needed for his own b
consumption the inference that he was transporting them for the purpose of
trafficking in them would, in the absence of any plausible explanation by him,
be irresistible – even if there were no statutory presumption such as is
contained in section 15 of the Drugs Act.
As a matter of common sense the larger the quantity of drugs involved the c
stronger the inference that they were not intended for the personal consumption
of the person carrying them, and the more convincing the evidence needed
to rebut it. All that section 15 does is to lay down the minimum quantity of
each of the five drugs with which it deals at which the inference arises from
the quantity involved alone that they were being transported for the purpose
d
of transferring possession of them to another person and not solely for the
transporter’s own consumption. There may be other facts which justify the
inference even where the quantity of drugs involved is lower than the
minimum which attracts the statutory presumption under section 15. In the
instant cases, however, the quantities involved were respectively one hundred
times and six hundred times the statutory minimum. e
Whether the quantities involved be large or small, however, the inference is
always rebuttable. The accused himself best knows why he was conveying the
drugs from one place to another and, if he can satisfy the court, upon the
balance of probabilities only that they were destined for his own consumption
he is entitled to be acquitted of the offence of trafficking under section 3. f
Now, we are well aware that the Privy Council was there dealing with the
Misuse of Drugs Act 1973 Singapore. At one point in time our courts thought
that Singapore decisions on their statute was of little value here because of
the differences in the two statutory provisions, namely ours and theirs. For
example, it was thought that while in Singapore travelling about from one place g
to another with a small quantity of drug for personal consumption was not
trafficking, in our jurisdiction it was. See Teh Geok Hock v. Public Prosecutor
[1989] 2 CLJ 977; [1989] 1 CLJ (Rep) 160 SC. However, that misconception
was exploded by the decision of the Supreme Court in Cohen Lorraine Phillis
& Anor v. Public Prosecutor [1989] 2 CLJ 956; [1989] 1 CLJ (Rep) 18. This h
resulted in the Federal Court in Chow Kok Keong v. Public Prosecutor [1998]
2 CLJ 469 stating as follows:
CLJ
39
a In our view, both Cohen and Ng Chai Kem, have severely watered down Teh
Geok Hock in so far as it implies that passive possession or self-administration
can never be a defence to a charge of trafficking under s. 39B of our Act.
Having considered this point afresh, we preferred the views expressed in Cohen
and Ng Chai Kem to those in Teh Geok Hock which we regarded as
oversimplistic. We would add that apart from the general consideration that
b the drugs legislation is a piece of highly penal legislation and therefore any
ambiguity in it should be resolved in favour of the subject, in accordance with
long established canons of construction, it is pertinent to note that the
definition of ‘trafficking’ aforesaid comes under s. 2 of the Act, the very first
line of which reads:
c In this Act, unless the context otherwise requires … .
In our view the context of s. 37(da)(i) which says:
any person who is found in possession of; …
d (i) 15 grammes or more in weight of heroin; … otherwise than in

accordance with the authority of this Act or any other written law,
shall be presumed, until the contrary is proved, to be trafficking
in the said drug;
does ‘otherwise require’ (emphasis added). If this were not so, the provisions
e of s. 37(da) which specifically confer upon the accused the right to rebut the
presumption of trafficking arising from being found in possession of dangerous
drugs in excess of the statutory minimum, would be an empty hypocrisy.
It is noteworthy that the judgment of the Federal Court on that occasion was
delivered by Edgar Joseph Jr FCJ, a judge of great learning and experience in
f all areas of the law.
If the learned judge in the present case had applied the test formulated in
s. 180 of the Criminal Procedure Code after its amendment in 1997, we are
of the view that he would have found a prima facie case on the original charge.
g The phrase “would if unrebutted warrant his conviction” has been replaced by
the phrase “prima facie case”. There is no doubt whatsoever that the change
in language was intended by Parliament to produce a change in consequence.
But what does “prima facie” case mean? Or more importantly what did
Parliament intend it to mean?
h
In our judgment Parliament by the phrase “prima facie” case intended to
reverse the majority of the Federal Court in Arulpragasan Sandaraju v. Public
Prosecutor [1996] 4 CLJ 597 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. Public
i
CLJ
40
Prosecutor [1981] CLJ 123; [1981] CLJ (Rep) 11. In Haw Tua Tau Lord a
Diplock appears to have equated trials before a judge and jury to trials before
a judge sitting alone.
Now, in a trial by judge sitting with a jury, the judge is the decider of law
but the jury is the decider of fact. Quite the contrary in trials before a judge
b
sitting alone. In the latter the judge is both decider of fact and law. We
therefore find ourselves in agreement with the majority in Arulpragasan
(speaking through his Lordship Justice Edgar Joseph Jr, FCJ) that it is absurd
in the context of our jurisdiction to equate the two situations.
There is nothing in the amended s. 180 of the Criminal Procedure Code which c
reflects an intention in Parliament to create such an equation. Accordingly, in
our judgment, under s. 180 as presently constructed it is the duty of a judge
sitting alone to determine at the close of the prosecution’s case, as a trier of
fact, whether the prosecution has made out a prima facie case.
Returning to Arulpragasan the majority in that case held that the prosecution d
had to establish the charge against the accused beyond a reasonable doubt at
the close of the prosecution case. This is the view that found disfavour in the
minority led by Mohd Azmi FCJ. This comes across in the following passage
in the judgment of his Lordship at pp. 617-618:
e
Based on the reasoning of the Supreme Court, the Federal Court in Tan Boon
Kean v. PP [1995] 4 CLJ 456 found considerable difficulty in accepting the
pronouncement as purporting to abolish the two-tier stage of criminal trial
by a single judge, hitherto recognized and embedded in our adversarial justice
system, and it concluded that such suggestion (if any) in the pronouncement
requiring the court to make a finding on a beyond reasonable doubt basis on f
the guilt of the accused at that particular stage of the trial was obiter dicta.
Tan Boon Kean further held that the object of the maximum evaluation of
the evidence by the court at the close of the prosecution case was to determine
whether the prosecution had made out a prima facie case before the court
could call the accused to enter his defence … (emphasis added.)
g
We find that a careful reading of the majority view and the minority view
respectively in Arulpagasan in reality and for all practical purposes produces
the same result. According to the majority if at the close of the prosecution
case two or more inferences may be drawn from the prosecution evidence then
the inference most favourable to the accused must be drawn. In that event the h
prosecution would not have proved its case because there would be a reasonable
doubt. That is indeed, the position in law.
CLJ
41
a Thus in Tai Chai Keh v. Public Prosecutor [1948-49] MLJ Supp 105 the
Malayan Court of Appeal speaking through Spenser Wilkinson J said (at p.
108):
Where there is more than one inference which can reasonably be drawn from
a set of facts in a criminal case, we are of opinion that the inference most
b favourable to the accused should be adopted.
An illustration of this principle is to be found in the case of Public Prosecutor

v. Kasmin bin Soeb [1974] 1 MLJ 230. In that case the accused was charged
under an alternative charge for having committed an offence under s. 411 of
c the Penal Code. According to the prosecution, the accused had dishonestly
retained stolen property, to wit, a Honda generator, knowing or having reason
to believe the same to be stolen property. The only evidence adduced connecting
the accused to the crime was the fact that three days after the theft he led the
police to a place from where the generator was recovered. At the close of the
prosecution’s case the magistrate acquitted the accused. The prosecution then
d
appealed. The High Court dismissed the appeal. Mohd Azmi J (as he then was)
when delivering his oral judgment said this:
As far as leading the police to the place of discovery was concerned, there
were at least two inferences that could be drawn in the absence of information
e given by the accused. Either the accused himself had hidden the stolen
property there or he had come to know of its whereabouts through a third
person. In a criminal case, the inference favourable to the accused should be
drawn. Under the circumstances, the appeal is dismissed and the order of
discharge and acquittal be affirmed.
f It is noteworthy that Kasmin bin Soeb was decided at a time when s. 173(f)
of the Criminal Procedure Code was in its un-amended form and hence
contained the expression “would if unrebutted warrant his conviction”. The
exercise in which s. 180 was amended also resulted in an amendment to
s. 173 (f) which now uses the phrase “prima facie case”.
g It is also clear from the judgment of Edgar Joseph Jr FCJ in Arulpragasan
that what the majority was supporting was a maximum evaluation of the
prosecution evidence. This is made clear in the following passage in the
judgment of that very learned judge at p. 647 of the report:
Furthermore, if the onus on the prosecution at the close of its case, is to
h
establish a ‘mere prima facie case’, the test to be applied is a minimal
evaluation of the prosecution’s evidence to ensure that it is not inherently
incredible (see Haw Tua Tau v. PP). Whereas, if the onus on the prosecution
at the close of its case, is to establish a case ‘beyond all reasonable doubt’,
then the test to be applied to the prosecution’s evidence is a maximum
i evaluation of the prosecution’s evidence, which calls for ‘a more rigorous
CLJ
42
test of credibility’ (per Lord Diplock in Haw Tua Tau at p. 54G), in order to a
answer the question: if there is no more evidence, has the prosecution proved
its case beyond all reasonable doubt? (See PP v. Fong Ah Tong & Anor [1940]
MLJ 240 ). (emphasis added.)
This is the same proposition that was laid down in Khoo Hi Chiang (supra)
at p. 172: b
Consequently, the duty of the court, at the close of the case for the
prosecution, is to undertake, not a minimal evaluation of the evidence tendered
by the prosecution in order to determining whether or not the prosecution
evidence is inherently incredible – the Haw Tua Tau test – but a maximum
evaluation of such evidence, to determine whether or not the prosecution has c
established the charge against the accused beyond all reasonable doubt.
It would appear that a comparison between the passage earlier quoted from
the minority judgment of Mohd Azmi FCJ and that of Edgar Joseph Jr. FCJ,
reveals no serious difference of opinion between them as to the rigour with
d
which the prosecution’s evidence is to be examined. Hence, it is our respectful
view that the difference of opinion, if any – and we hasten to add that we are
unable to see any – between the majority and minority in Arulpragasan is not
one of substance but of mere form. Both the majority and minority insist on a
maximum evaluation of the prosecution evidence at the close of the prosecution’s
case. If there are gaps in the evidence (see Abdullah Zawawi Omar v. Public e
Prosecutor [1985] 2 CLJ 2; [1985] CLJ (Rep) 19) or the evidence admits of
more than one inference (Kasmin bin Soeb supra) then, applying either the view
of the majority or the minority in Arulpragasan, the result would be the same
in that the accused would be entitled to an acquittal at the close of the
prosecution’s case. f
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 Criminal Procedure
Code (and this would apply to a trial under s. 173 of the Code) is that as
encapsulated in the judgment of Hashim Yeop Sani FJ (as he then was) in
g
Dato’ Mokhtar bin Hashim & Anor v. Public Prosecutor [1983] 1 CLJ 138;
([1983] CLJ (Rep) 721) HC p. 152 (p. 752 g):
To summarise, 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 h
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
so 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.
i
CLJ
43
a We are confident in the view we have just expressed because we find nothing
in the amended s. 180(1) of the Criminal Procedure Code that has taken away
the right of an accused person to remain silent at the close of the prosecution
case. Further we find nothing in the legislative intention of Parliament as
expressed in the language employed by it to show that there should be a dual
b exercise by a judge under s. 180 when an accused elects to remain silent as
happened in Pavone v. Public Prosecutor [1984] 1 MLJ 77. In other words
we are unable to discover anything in the language of the recently formulated
s. 180 that requires a judge sitting alone first to make a minimum evaluation
and then when the accused elects to remain silent to make a maximum
c evaluation in deciding whether to convict or not at the close of the prosecution
case.
It therefore follows that there is only one exercise that a judge sitting alone
under s. 180 of the Code has to undertake at the close of the prosecution case.
He must subject the prosecution evidence to maximum evaluation and ask
d 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.
e
Support for the view we have expressed may be found in the case of Murray
v. Director of Public Prosecutions [1994] 1 WLR 1. That was a case of
attempted murder and possession of a firearm with intent to endanger life which
was tried before a judge sitting alone. Lord Slynn of Hadley there said (at
p. 11):
f
The accused cannot be compelled to give evidence but he must risk the
consequences if he does not do so. Those consequences are not simply, as
the defendant contends, that specific inferences may be drawn from specific
facts. They include in a proper case the drawing of an inference that the
accused is guilty of the events with which he is charged.
g
This does not mean that the court can conclude simply because the accused
does not give evidence that he is guilty. In the first place the prosecutor must
establish a prima facie case – a case for him to answer. In the second place
in determining whether the accused is guilty the judge or jury can draw only
‘such inferences from the refusal as appear proper.’ As Lord Diplock said in
h Haw Tua Tau v. Public Prosecutor [1982] AC 136, 153:
What inferences are proper to be drawn from an accused’s refusal to

give evidence depend upon the circumstances of the particular case, and
is a question to be decided by applying ordinary common sense.
CLJ
44
There must thus be some basis derived from the circumstances which justify a
the inference. If there is no prima facie case shown by the prosecution there
is no case to answer. Equally, if parts of the prosecution case had so little
evidential value that they called for no answer, a failure to deal with those
specific matters cannot justify an inference of guilt.
On the other hand, if aspects of the evidence taken alone or in combination b

with other facts clearly call for an explanation which the accused ought to
be in a position to give, if an explanation exists, then a failure to give any
explanation may as a matter of common sense allow the drawing of an
inference that there is no explanation and that the accused is guilty. (emphasis
added.)
c
We have thus far stated our views on what is meant by the expression “prima
facie case” appearing in ss. 173(f) and 180 of the Code. We now turn to
examine cases decided since the amendments made in 1997 to those sections.
In Public Prosecutor v. Krishna Rao a/l Gurumurthi & Ors [2000] 1 CLJ
446 at p. 481 Kang Hwee Gee J expressed his view on the effect of the d
amendment to ss. 173(f) and 180 of the Criminal Procedure Code as follows:
The first accused elected to remain silent and not to call any evidence.
Following the Federal Court case of Arulpragasan v. PP [1997] 1 MLJ 389,
I would be duty-bound to convict the first accused forthwith. But the decision
e
in Arulpragasan is now no longer good law as s. 180 Criminal Procedure
Code has since been thoroughly overhauled.
In its present form however, the law is somewhat unsettled as to the next
course of action that would have to be taken when an accused elects to remain
silent. While requiring that the defence must be called at the close of the
f
case for the prosecution if the court finds that a prima facie case has been
made out, the phrase in the former state ‘if unrebutted would warrant his
conviction’ has been conspicuously left out thereby opening again to
interpretation the perennial question of whether the court can convict forthwith
an accused who chooses to remain silent after being called to enter his defence.
As I understand it, the Arulpragasan case seeks to explain that a ‘prima facie g
case’ in the context of the requirement of the former s. 180 of the Criminal
Procedure Code which contained the phrase ‘which unrebutted would warrant
his conviction’ means simply, sufficiency of evidence at the close of the case
for the prosecution. Hence, by reason of the existence of this phrase, it was
clear that the prosecution must prove its case beyond reasonable doubt at the
close of the case for the prosecution so as to put itself in a position to convict h
the accused if he chooses not to call any evidence (that is to say if he chose
to remain silent) after being called to enter his defence. There would be no
further need of re-evaluation of evidence – conviction must follow as matter
of course.
i
CLJ
45
a With the demise of Arulpragasan, personally I am of the view that one may
depart from the position adopted in that case to convict an accused who
chooses to remain silent forthwith at the close of the case for the prosecution
– to re-examine the prosecution’s evidence afresh to see if in the final analysis
the charge against the accused has been proved beyond reasonable doubt. For
in my considered view, s. 180 in its present form (without the phrase ‘if
b unrebutted would warrant his conviction’) merely requires the court to decide
whether the prosecution has made out a prima facie case at the close of its
case. All that the judge needs to do at this stage is to consider whether on
the facts presented before him, there is sufficient evidence to merit the hearing
of the defence side of the story. If there is not, the accused would be entitled
to an acquittal without having to be called to enter his defence. If on the
c
other hand there is sufficient evidence, the accused would have to be called
to enter his defence – and in the event that the accused decides to remain
silent it would be incumbent upon the judge to re-evaluate the prosecution’s
evidence this time with a view to deciding whether the prosecution has proved
its case (as it was obliged to under the law) beyond reasonable doubt.
d
We have already expressed our view that neither s. 173(f) nor 180 calls for a
minimal evaluation. In fact they require quite the opposite. They call for a
maximum evaluation of the prosecution’s evidence. As such, we must dissent
from the view expressed by Kang Hwee Gee J in the above quoted passage
and hold that view to be wrong in law.
e
In Public Prosecutor v. Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 CLJ
215 at pp. 274-275, Augustine Paul J made the following observation which
has since received approval sub silentio from the Federal Court (see, [2002] 3
CLJ 457):
f 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
g 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.
h
In our judgment, the foregoing passage correctly states the law as it presently
stands. But, we would emphasise and make it amply clear that there is no
burden on the prosecution to prove its case beyond a reasonable doubt at the
close of the prosecution’s case. Whether it has done so, is a question that must
be dealt with at the close of the whole case.
i
CLJ
46
In Public Prosecutor v. Sukumaran a/l Sudram [1999] 4 CLJ 242 at p. 256, a

Jeffrey Tan J expressed a view not wholly dissimilar from that expressed by
Kang Hwee Gee J in Public Prosecutor v. Krishna Rao a/l Gurumurthi &
Ors (supra):
A ‘prima facie case’ is built on prima facie evidence. And since the standard
of proof of a prima facie case is mere prima facie evidence, whereas the very b
purpose of a maximum evaluation of the prosecution evidence at the close of
the case for the prosecution is to find a ‘beyond reasonable doubt case’ at
the close of the case for the prosecution, a maximum evaluation of the
prosecution evidence at the stage of the close of the case for the
prosecution is totally uncalled for. In fact, a maximum evaluation is c
anathema to the concept of a prima facie case. (emphasis added.)
For the reasons we have already given, we are unable to agree with the view
of the learned judge in the above quoted passage. In our opinion, it is not a
correct statement of the law.
d
In Public Prosecutor v. Ong Cheng Heong [1998] 4 CLJ 209 at pp. 224-
225, Vincent Ng J expressed his view on the amendment to s. 180:
Thus, to me, maximum evaluation simply means evaluation, on a prima facie
basis, of each and every essential ingredient of the charge as tested in cross-
examination. In other words, maximum evaluation connotes quantitative rather e
than qualitative evaluation of the evidence; with focus more on the evidential
burden in terms of evidence led rather than the persuasive burden in terms
of qualitative degree of proof.
What then constitutes a ‘prima facie case’? ‘Prima facie’ means on the face
of it or at first glance. To me, in the light of Act A979, perhaps the most f
appropriate 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 is evidence which is sufficient to establish a fact in the absence
of any evidence to the contrary, but is not conclusive. (emphasis g
added.)
It would follow that there should be credible evidence on each and every
essential ingredient of the offence. Credible evidence is evidence which has
been filtered and which has gone through the process of evaluation. Any
evidence which is not safe to be acted upon should be rejected. h
The same learned judge in Public Prosecutor v. Saare Hama & Anor [2001]
4 CLJ 475 at pp. 483-484 said:
CLJ
47
a In my view the prosecution could be ruled to have ‘made out a prima facie
case against the accused’ when the probative force of the evidence on all the
essential elements in the charge taken as a whole is such that, if unrebutted,
it is sufficient to induce the court to believe in the existence of the facts
pertaining to such essential elements or to consider its existence so probable
that a prudent man ought to act upon the supposition that those facts existed
b or did happen. It is therefore wrong for a judge or magistrate to require the
prosecution to prove that the accused is actually guilty beyond a reasonable
doubt before calling for his defence. That requirement for ultimate decision
must be postponed until the end of the trial, and – to reiterate – there is no
duty cast on the prosecution to actually prove their case beyond reasonable
doubt as to the guilt of the accused at the close of the case for the prosecution.
c
In substance, this is what Gordon Smith Ag JA held in PP v. Chin Yoke
[1940] MLJ 47.
Although we might have expressed the test in different words, we agree with
the formulation of the test in Ong Cheng Heong and Saare Hama. In our
d judgment, these two cases accurately set out the approach that is to be adopted
under ss. 173(f) and 180 of the Code at the conclusion of the prosecution’s
case.
Lastly, in Public Prosecutor v. Mohan Singh [1999] 4 CLJ 620, Wahab Patail
J expressed his view upon the approach to be taken by a court when deciding
e whether the prosecution had made out a case under s. 180 of the Code. He
said:
I conclude then that the prosecution must be in a position to say:
a) at the end of the prosecution case, that on the basis of the evidence it
f has advanced, and tested by cross-examination, it has advanced evidence
beyond reasonable doubt in respect of all the elements of the charge;and
b) at the end of the trial, and based upon an evaluation of the whole of
the evidence, that the defence has not raised any reasonable doubts by
the evidence that the latter has adduced.
g
Keeping in mind that in the event of ambiguity the beneficial interpretation
is given in favour of the accused, the ‘beyond reasonable doubt’ test is
therefore applied in assessing the evidence for the purpose of determining
whether the prosecution has made out a prima facie case. It goes without
saying that an evaluation of whether the prosecution has discharged the burden
h of proof beyond reasonable doubt requires a full or maximum evaluation of
the evidence in the sense of evaluating the evidence before the court
thoroughly.
CLJ
48
If this passage is meant to suggest that the evidence led by the prosecution a
must receive maximum evaluation, then we would agree with it. But if what
is meant is that a court ought to go further and determine whether the
prosecution at the end of its case has proved the case against the accused
beyond a reasonable doubt, then we find ourselves in disagreement with the
learned judge in that case. In our view, subjecting the evidence of the b
prosecution to maximum evaluation to determine if the defence is to be called
does not mean that the prosecution has to prove its case beyond a reasonable
doubt at this intermediate stage.
Returning to the present case and applying the test which we have earlier
formulated, the learned judge was obliged to call upon the second accused to c
enter his defence on the original charge.
We once again would emphasise that all that we have said in respect of the
material placed before the court below by the prosecution, is not intended and
is not to be taken as a direction to the learned judge to convict the second d
accused on any charge. It is for him to undertake the usual exercise to evaluate
the evidence at the close of the whole case and to come to a conclusion
warranted by that evidence.
There is one other matter. The original charge was against both accused under
s. 39B of the Act read with s. 34 of the Penal Code. Since the first accused e
is now deceased, the reference to s. 34 can no longer form part of the charge.
At this stage it is for the prosecution to formulate the appropriate charge upon
which the second accused’s defence is to be called. We would therefore invite
the learned Deputy Public Prosecutor to tender to us the charge upon which
the second accused’s defence is to be called. f
Before we conclude this judgment we would like to covey our gratitude and
appreciation to the learned counsel for the second accused and both the learned
deputies who appeared before us. But for their effort and careful argument and
the citation of relevant authorities this ex-tempore judgment would not have
g
been possible.
CLJ
CRIMINAL PROCEDURE CODE (REVISED 1999)

ACT 593
49
173. Procedure in summary trials. Cases Referred
The following procedure shall be observed by Magistrates in summary trials:
(a) When the accused appears or is brought before the Court a charge containing the particulars
of the offence of which he is accused shall be framed and read and explained to him, and he shall
be asked whether he is guilty of the offence charged or claims to be tried.
(b) If the accused pleads guilty to the charge, whether as originally framed or as amended, the
plea shall be recorded and he may be convicted on it and the Court shall pass sentence according
to law:
(c) If the accused refuses to plead or does not plead or claims to be tried, the Court shall proceed
to take all such evidence as may be produced in support of the prosecution.
(d) When the Court thinks it necessary it shall obtain from the complainant or otherwise the
names of any persons likely to be acquainted with the facts of the case and to be able to give
evidence for the prosecution, and shall summon to give evidence before itself such of them as it
thinks necessary.
(e) The accused shall be allowed to cross-examine all the witnesses for the prosecution.
(f) (i) 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.
(ii) If the Court finds that the prosecution has not made out a prima facie case against the
accused, the Court shall record an order of acquittal.
(g) Nothing in paragraph (f) shall be deemed to prevent the Court from discharging the accused
at any previous stage of the case if for reasons to be recorded by the Court it considers the charge
to be groundless.
(h) (i) If the Court finds that a prima facie case has been made out against the accused on the
offence charged, the Court shall call upon the accused to enter on his defence.
(ii) If the Court finds that a prima facie case has been made out against the accused on an offence
other than the offence charged which the Court is competent to try and which in the opinion of
the Court it ought to try, the Court shall amend the charge.
(iii) For the purpose for subparagraphs (i) and (ii), a prima facie case is made out against the
accused where the prosecution has adduced credible evidence proving each ingredient of the
offence which if unrebutted or unexplained would warrant a conviction.
[Ins. by Act A1274]
(ha) When the Court calls upon the accused to enter on his defence under subparagraph (h) (i),
the Court shall read and explain the three options to the accused which are as follows:
(i) to give sworn evidence in the witness box;
(ii) to give unsworn statement from the dock;

about:blank 1/3
or
(iii) to remain silent.

50
[Ins. by Act A1274]
(i) The charge if amended shall be read to the accused as amended and he shall be again asked
whether he is guilty of the offence in the charge as amended.
(j) (i) If the accused pleads guilty to the charge as amended, the plea shall be recorded and he
may be convicted on it and the Court shall pass sentence according to law:
(ii) If the accused does not plead guilty to the charge as amended, the accused shall be called
upon to enter on his defence.
(iii) When the accused is called upon to enter on his defence, he may produce his evidence and
shall be allowed to recall and cross-examine any witness present in the Court or its precincts:
Provided that if the accused elects to be called as a witness, his evidence shall be taken before
that of other witnesses for the defence:
Provided further that any accused person who elects to be called as a witness may be cross-
examined on behalf of any other accused person.
(k) If the accused puts in any written statement the Court shall file it with the record.
(l) (i) If the accused applies to the Court to issue any process for compelling the attendance of
any witness (whether he has or has not been previously examined in the case) for the purpose of
examination or cross-examination or the production of any document or other thing, the Court
shall issue the process unless it considers that the application should be refused on the ground
that it is made for the purpose of vexation or delay or for defeating the ends of justice, in which
case that ground shall be recorded by it in writing.
(ii) The Court may, before summoning any witness on such application, require that his
reasonable expenses incurred in attending for the purposes of the trial be deposited in Court.
(m) (i) At the conclusion of the trial, the Court shall consider all the evidence adduced before it
and shall decide whether the prosecution has proved its case beyond reasonable doubt.
(ii) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court
shall find the accused guilty and he may be convicted on it and the Court shall pass sentence
according to law.
Provided that before the Court passes sentence, the Court shall, upon the request of
the victim of the offence or the victim's family, call upon the victim or a member of
the victim's family to make a statement on the impact of the offence on the victim or
his family; and where the victim or a member of the victim's family is for any
reason unable to attend the proceedings after being called by the Court, the Court
may at its discretion admit a written statement of the victim or a member of the
victim's family.
[Proviso (m)(ii) Subs. by Act A1422]
(iii) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the
Court shall record an order of acquittal.
about:blank 2/3
(n) When the proceedings have been instituted upon the complaint of some person upon oath
under section 133 and upon any day fixed for the hearing of the case the complainant is absent
and the offence may lawfully be compounded, the Court may, in its discretion, notwithstanding
51
anything hereinbefore contained, discharge the accused at any time before calling upon him to
enter upon his defence.
(o) If the accused does not appear at the time and place mentioned in the summons and it appears
to the Court that the summons was duly served a reasonable time before the time appointed for
appearing and no sufficient ground is shown for an adjournment the Court may either proceed ex
parte to hear and determine the complaint or may adjourn the hearing to a future day.
[Am. by Act A979]
EDITORIAL COMMENTS AND ANNOTATIONS
On the usage of handcuffs
Refer also to Yaakub Bin Ahmad v. Public Prosecutor [1975] 1 MLRA 320
procedure under s 173(b)
Refer also to Public Prosecutor v. Tengku Hitam [1962] 1 MLRH 108 :
In this case the record does not show that the Court ascertained that the accused understood the nature and
consequences of his plea and intended to admit, without qualification, the offence alleged against him. There
is also no record that his plea was accepted by the learned Magistrate before recording a conviction. I invite
the attention of all Presidents and Magistrates to the provisions of s. 173(b) of the criminal procedure code.
I would suggest that the following procedure be adopted. Before a case is presented in Court the prosecution
must first satisfy itself whether the maximun punishment which such Court can impose is adequate. If it
thinks that such sentence is inadequate the case should be brought before another Court. Ordinarily a case
should be brought before the Court which has jurisdiction to try it. For example, a case which is ordinarily
triable in a Magistrate's Court should be brought in that Court and should only be brought in the Sessions
Court if the prosecution is of the opinion that upon conviction the maximum sentence which can be imposed
by the Magistrate is inadequate. The provisions of s. 87(2) of the Courts Ordinance, 1948 should only be
invoked when the case takes an unexpected turn and the evidence so adduced shows that the maximum
sentence that can be imposed by the trial Magistrate is inadequate."
about:blank 3/3
52
PP lwn.
[2013] 8 CLJ Mohamad Malek Ridhzuan Che Hassan 359
A PP
lwn.
MOHAMAD MALEK RIDHZUAN CHE HASSAN

B MAHKAMAH RAYUAN, PUTRAJAYA
ABU SAMAH NORDIN HMR
AZAHAR MOHAMED HMR
MOHD ZAWAWI SALLEH HMR
[RAYUAN JENAYAH NO: W-09-274-12-2011]
C 29 JULAI 2013
KETERANGAN: Keterangan sokongan - Kes rogol - Mangsa bawah

umur - Sama ada keterangan pengadu memerlukan keterangan sokongan
- Sama ada keterangan pengadu “unusually convincing” - Sama ada
D sabitan boleh dibuat tanpa keterangan sokongan
PROSEDUR JENAYAH: Rayuan - Rayuan terhadap pelepasan dan

pembebasan - Kesalahan merogol - Mangsa bawah umur - Sama ada
pertuduhan dibuktikan - Sama ada pembelaan adalah penafian semata-
mata - Sama ada keterangan positif mangsa mengatasi penafian oleh
E
tertuduh - Sama ada hakim bicara terkhilaf - Kanun Keseksaan, s. 376
UNDANG-UNDANG JENAYAH: Kanun Keseksaan - Seksyen 376 -

Mangsa bawah umur - Sama ada keterangan pengadu memerlukan
keterangan sokongan - Sama ada kemasukan penuh kemaluan responden
F dan pancutan air mani diperlukan untuk membuktikan kesalahan rogol -
Sama ada keterangan doktor yang memeriksa mangsa muktamad - Sama
ada responden menimbulkan satu keraguan munasabah terhadap kes
pendakwaan
G Responden disabitkan dengan dua pertuduhan di bawah s. 376

Kanun Keseksaan atas kesalahan merogol SP4, seorang kanak-
kanak berusia 12 tahun dan 9 bulan. Di Mahkamah Sesyen,
responden telah memberi keterangan atas sumpah bahawa dia tidak
memasukkan kemaluannya ke dalam faraj SP4 sebaliknya hanya
H memasukkan jari telunjuk dan jari hantunya. Walau bagaimanapun,
laporan perubatan menunjukkan koyakan baru dan kehadiran air
mani di bahagian faraj SP4. Responden berhujah bahawa dua
orang saksi iaitu doktor (‘SP7’) yang memeriksa SP4 dan ahli kimia
(‘SP12’) telah menyokong keterangan yang diberikan oleh
I responden dengan memberi pendapat bahawa koyakan tersebut
berkemungkinan disebabkan oleh kemasukan jari responden ke
dalam faraj SP4. Di akhir kes pembelaan, Hakim Mahkamah
53
Sesyen (‘HMS’) memutuskan bahawa keterangan responden telah A

berjaya menimbulkan keraguan yang munasabah terhadap kes
pendakwaan dan justeru, responden telah dilepaskan dan
dibebaskan daripada kedua-dua pertuduhan tersebut. Mahkamah
Tinggi mengekalkan keputusan HMS dan oleh itu, rayuan ini. Isu-
isu lain yang dibangkitkan untuk pertimbangan mahkamah adalah; B
(i) sama ada keterangan SP4 dalam kes seksual memerlukan
keterangan sokongan untuk merekodkan sabitan; (ii) sama ada
kemasukan penuh kemaluan responden ke dalam faraj SP4 dan
pancutan air mani diperlukan untuk membuktikan kesalahan rogol;
(iii) sama ada keterangan SP7 adalah muktamad untuk C
membuktikan berlakunya kemasukan kemaluan responden ke dalam
faraj SP4; dan (iv) sama ada responden telah menimbulkan
keraguan yang munasabah terhadap kes pendakwaan.
Diputuskan (membenarkan rayuan; mengenepikan perintah D

Mahkamah Tinggi)
Oleh Mohd Zawawi Salleh HMR menyampaikan
penghakiman mahkamah:
(1) Penemuan fakta oleh HMS dan Mahkamah Tinggi bahawa

E
responden tidak memasukkan kemaluannya ke dalam faraj SP4
tetapi hanya memasukkan jari telunjuk dan jari hantu, adalah
bertentangan dengan keberatan keterangan yang dikemukakan.
Kes pendakwaan adalah bertunjang kepada keterangan SP4
dan justeru, keterangan SP4 perlu diteliti secara mendalam dan
F
terperinci. (perenggan 15 & 16)
(2) Walaupun tiada peruntukan undang-undang bahawa keterangan

pengadu dalam kes-kes seksual memerlukan keterangan
sokongan, namun, adalah menjadi amalan mahkamah untuk
melihat keterangan demikian. Sekiranya keterangan pengadu G
adalah “unusually convincing”, sabitan dalam kes-kes seksual
boleh dibuat tanpa keterangan sokongan. Dalam kes ini, HMS
telah memutuskan bahawa SP4 adalah seorang saksi yang
kredibel dan keterangannya jelas menunjukkan bahawa
responden sesungguhnya telah memasukkan kemaluannya ke H
dalam faraj SP4. (perenggan 20, 22 & 24)
(3) Keterangan SP7 dan SP12 tidak, pada bila-bila masa,

menyatakan bahawa tidak berlaku kemasukan kemaluan
responden ke dalam faraj SP4. SP7 hanya menyatakan bahawa I
koyakan berkemungkinan disebabkan oleh kemasukan jari
54
PP lwn.
A responden ke dalam kemaluan SP4 atau oleh kemasukan objek

yang tumpul dan pejal dan tidak semestinya disebabkan oleh
hubungan seksual semata-mata. SP7 tidak boleh memberi
pendapat bahawa koyakan pada faraj SP4 adalah disebabkan
kemasukan kemaluan responden ke dalam faraj SP4 kerana
B keputusan sedemikian adalah tugas mahkamah. (perenggan 30)
(4) Kehadiran air mani bukan merupakan satu keperluan undang-

undang bagi membuktikan kesalahan rogol. Bagi kesalahan
rogol, apa yang diperlukan adalah kemasukan kemaluan
C responden ke dalam faraj SP4 dan bukannya terkeluar atau
terpancutnya air mani. Oleh itu, ketidakhadiran air mani dalam
faraj SP4 bukan bermakna tidak berlaku kemasukan kemaluan
responden ke dalam faraj SP4. (perenggan 34)
(5) Di peringkat kes pendakwaan, HMS membuat penemuan

D
positif bahawa responden telah memasukkan kemaluannya ke
dalam faraj SP4 dan telah mengambil kira bahawa terdapat
keterangan sokongan bagi keterangan SP4. Walau bagaimanapun,
HMS telah mengubah pendiriannya dan mempercayai bahawa
terdapat kemungkinan bahawa hanya jari terlunjuk dan jari
E
hantu yang dimasukkan oleh responden. Inferen yang dibuat
oleh HMS tidak disokong oleh mana-mana keterangan dan
merupakan “fanciful conjecture” semata-mata. Dengan itu,
HMS telah tersalah arah di akhir kes pembelaan. (perenggan
39, 40 & 41)
F
(6) Penafian, jika tidak disokong oleh keterangan yang kukuh dan
boleh dipercayai, adalah “self-serving assertion” yang tidak
mempunyai apa-apa nilai keterangan di sisi undang-undang.
Keterangan responden yang mengatakan bahawa dia tidak
G memasukkan kemaluannya ke dalam faraj SP4 adalah satu
penafian semata-mata yang tidak boleh menimbulkan satu
keraguan yang munasabah terhadap kes pendakwaan. Penafian
tersebut tidak boleh mengatasi keterangan positif, jelas dan
tegas oleh SP4 bahawa sebenarnya responden telah
H memasukkan kemaluannya ke dalam faraj SP4. (perenggan 42
& 43)
[Responden dijatuhkan hukuman lapan tahun penjara bagi setiap

pertuduhan, yang diperintahkan berjalan serentak.]
I
55
English Translation Of Headnotes A
The respondent was convicted of two charges under s. 376 of

the Penal Code for the rape of SP4, a child aged 12 years and
9 months. At the Sessions Court, the respondent gave evidence
on oath that he had not penetrated his penis into SP4’s vagina B
instead, he merely inserted his forefinger and middle finger into her
vagina. However, medical reports revealed that there were new
tears and the existence of spermatozoa in SP4’s vagina. The
respondent submitted that two witnesses, the doctor (‘SP7’) who
treated SP4 and the chemist (‘SP12’), had supported the C
respondent’s evidence by providing opinion that the vaginal tear
could have been caused by the insertion of the respondent’s
fingers into SP4’s vagina. At the end of the defence case, the
Sessions Court Judge (‘SCJ’) decided that the respondent’s
evidence had cast a reasonable doubt on the prosecution’s case D
and therefore, the respondent was discharged and acquitted from
the two charges. The High Court affirmed the decision of the
Sessions Court and hence, this appeal. The issues raised, inter alia,
were: (i) whether SP4’s testimony in a sexual offence required
corroborative evidence in order to secure a conviction; E
(ii) whether there was a need for full penetration by the
respondent and whether ejaculation was required to establish an
offence of rape; (iii) whether the evidence of SP7 was conclusive
to prove that there was penetration by the respondent into SP4’s
vagina; and (iv) whether the respondent had cast a reasonable F
doubt on the prosecution’s case.
Held (allowing appellant’s appeal; setting aside order of the

High Court)
Per Mohd Zawawi Salleh JCA delivering the judgment of the
G
court:
(1) The finding of facts by the SCJ and the High Court Judge
that the respondent had not penetrated into SP4’s vagina but
instead merely inserted his forefinger and his middle finger was
contrary to the weight of evidence produced. The H
prosecution’s case depended solely on the evidence of SP4.
Thus, SP4’s evidence should be evaluated in detail and in
depth.
I
56
PP lwn.
A (2) Although there was no requirement in law that the evidence

of a complainant in a sexual case required corroboration,
however, it was a practice of the court to scrutinise such
evidence. If the evidence from the complainant was “unusually
convincing”, a conviction in a sexual offence can be recorded
B without the need of corroborative evidence. In this case, the
SCJ had decided that SP4 was a credible witness and her
testimonies were precise in explaining that the respondent had
penetrated her vagina.
C (3) The evidence of SP7 and SP12 did not, at any time, state
that there was no penetration by the respondent into SP4’s
vagina. SP7 merely gave evidence that the tear could have
possibly been caused by the insertion of the respondent’s
fingers into SP4’s vagina or could also have been caused by
D penetration of a blunt and solid object and not necessarily
caused by a sexual relationship. SP7 could not give opinion
that the tear in SP4’s vagina was caused by the penetration
of the respondents penis into her vagina because it was the
duty of the court to decide.
E
(4) The existence of spermatozoa was not a requirement in law
to establish an offence of rape. In order to establish an offence
of rape, the requirement was that there must be a full
penetration into SP4’s vagina and not ejaculation. Therefore,
the non-existence of spermatozoa in SP4’s vagina did not
F
mean that there was no penetration by the respondent’s penis
into SP4’s vagina.
(5) At the prosecution stage, the SCJ had made a positive finding
that the respondent had penetrated into SP4’s vagina and had
G taken into account the corroborative evidence by SP4.
However, the SCJ had changed her stand and believed that
there was a possibility that the respondent had inserted his
fingers into SP4’s vagina. The inference by the SCJ was not
supported by any evidence and was a mere “fanciful
H conjecture”. Therefore, the SCJ had misdirected herself at the
close of the prosecution’s case.
(6) A denial, if not supported by strong and credible evidence,

was a “self-serving assertion” which had no evidential value in
I law. The respondent’s evidence that he had not penetrated
into SP4’s vagina was a mere denial and could not cast a
57
reasonable doubt on the prosecution’s case. Such denial could A

not prevail over the positive, clear and firm evidence of SP4
which showed that the respondent had penetrated into her
vagina.
[Respondent sentenced to eight year’s imprisonment for each charge, which B

were ordered to run concurrently.]
Kes-kes yang dirujuk:
Aparav Sathiah v. PP [1997] 2 CLJ Supp 391 HC (dirujuk)
Dato’ Seri Anwar Ibrahim v. PP & Another Appeal [2004] 3 CLJ 737 FC
(dirujuk) C
Din v. PP [1964] 1 LNS 242 FC (dirujuk)
Jagatheesan s/o Krishnasamy v. PP [2006] 4 SLR 45 (dirujuk)
Ku Lip See v. PP [1981] 1 LNS 209 FC (dirujuk)
Kwan Peng Hong v. PP [2000] 4 SLR 96 (dirujuk)
Madan Gopal Kakkad v. Naval Dubey & Another [1992] 3 SCC 204 D
(dirujuk)
Mohamad Radhi Yaakob v. PP [1991] 3 CLJ 2073; [1991] 1 CLJ (Rep)
311 SC (dirujuk)
Nor Afizal Azizan v. PP [2012] 6 CLJ 370 CA (dibezakan)
P’ng Hun Sun v. Dato’ Yip Yee Foo, [2013] 1 LNS 320 CA (dirujuk)
Pang Chee Meng v. PP [1992] 1 CLJ 39; [1992] 1 CLJ (Rep) 265 SC E
(dirujuk)
People v. Campuhan 385 Phil 912 (2000) (dirujuk)
PP v. Mardai [1949] 1 LNS 65 HC (dirujuk)
PP v. Rajan Sinniah [2007] 8 CLJ 674 HC (dirujuk)
PP v. Saimin & Ors [1971] 1 LNS 115 HC (dirujuk)
F
PP v. Selvarajoo Ramachandran & Ors [2005] 6 CLJ 114 HC (dirujuk)
Sakthivel Punithavathi v. PP [2007] 2 SLR 983; [2007] SGHC 54
(dirujuk)
Sheo Swarup v. King Emperor [1934] LR 61 1A 398 (dirujuk)
Sivalingam Periasamy v. Periasamy & Anor [1996] 4 CLJ 545 CA
(dirujuk) G
Tay Kim Kuan v. PP [2001] 2 SLR (R) 876 (dirujuk)
Vijay @ Chinee v. State of Madhya Pradesh [2010] 8 SCC 191 (dirujuk)
Yap Giau Beng Terence v. PP [1998] 3 SLR 656 (dirujuk)
Perundangan yang dirujuk:

Penal Code, s. 376 H
Sumber-sumber yang dirujuk:

Modi, Medical Jurisprudence and Toxicology, 21st edn, ms 61
Bagi pihak perayu - Kwan Li Sa; TPR

Bagi pihak responden - Amrit Pal Singh; T/n Amrit & Co I
58
PP lwn.
A [Rayuan dari Mahkamah Tinggi, Kuala Lumpur; Rayuan Jenayah No: 42-
166-2010]
Dilaporkan oleh Sandra Gabriel
B
PENGHAKIMAN
Mohd Zawawi Salleh HMR:
Pendahuluan
C
[1] Ini adalah rayuan oleh Pendakwa Raya (“perayu”) terhadap
keputusan Mahkamah Tinggi Kuala Lumpur yang diberikan pada
3 November 2011, yang menolak rayuan perayu dan mengekalkan
perintah pelepasan dan pembebasan responden di akhir kes
D pembelaan yang dibuat oleh Mahkamah Sesyen bagi dua
pertuduhan merogol yang boleh dihukum di bawah s. 376 Kanun
Keseksaan (“KK”).
[2] Dua pertuduhan yang dikemukakan terhadap responden ialah

E seperti berikut:
Pertuduhan Pertama
Bahawa kamu pada 23.4.2008 pada jam lebih kurang 1 pagi

bertempat di dalam bilik nombor 102, Hotel No. One Lodge di
F alamat No. 1, Jalan Sarawak, Off Jalan Pudu, di dalam Daerah
Dang Wangi, di dalam Negeri Wilayah Persekutuan Kuala
Lumpur, telah merogol xxx, No. K/P: xxx, umur 12 tahun 9
bulan, oleh itu kamu telah melakukan kesalahan dan boleh
dihukum di bawah seksyen 376 Kanun Keseksaan.
G Pertuduhan Kedua
Bahawa kamu pada 23.4.2008 pada jam lebih kurang 3 pagi

bertempat di dalam bilik nombor 102, Hotel No. One Lodge di
alamat No. 1, Jalan Sarawak, Off Jalan Pudu, di dalam Daerah
Dang Wangi, di dalam Negeri Wilayah Persekutuan Kuala lumpur,
H telah merogol xxx, No. K/P: xxx, umur 12 tahun 9 bulan, oleh
itu kamu telah melakukan kesalahan dan boleh dihukum di bawah
seksyen 376 Kanun Keseksaan.
[3] Kami telah mendengar rayuan ini pada 1 Mac 2013. Selepas
I menimbangkan hujahan yang dikemukakan oleh kedua-dua pihak,
meneliti rekod-rekod rayuan dan menganalisis undang-undang yang
59
berkaitan, kami berpendapat rayuan ini mempunyai merit. Justeru, A

kami membenarkan rayuan perayu dan mengenepikan perintah
pelepasan dan pembebasan perayu yang dibuat oleh Mahkamah
Sesyen yang dikekalkan oleh Mahkamah Tinggi. Responden
didapati bersalah dan disabitkan dengan kedua-dua pertuduhan.
Selepas mendengar hujahan peringanan hukuman oleh peguambela B
terpelajar dan hujahan pemberatan hukuman oleh Timbalan
Pendakwa Raya terpelajar, kami menjatuhkan hukuman penjara
selama tempoh lapan tahun bagi setiap pertuduhan. Hukuman
tersebut diperintahkan berjalan serentak dan berkuatkuasa dari
tarikh hukuman dijatuhkan, iaitu pada 1 Mac 2013. C
[4] Kami kini memperturunkan alasan-alasan terperinci keputusan.
[5] Fakta kes telah dinyatakan secara lengkap dalam penghakiman

Mahkamah Sesyen di ms. 5 - 10, Jilid II, rekod rayuan. Kami
D
tidak berhasrat untuk mengulanginya di sini. Bagi tujuan rayuan ini,
adalah memadai jika kami hanya nyatakan fakta-fakta penting dan
relevan sahaja. Versi kes pendakwaan ialah seperti berikut:
(a) SP4 ialah mangsa dalam kes ini. Pada masa kejadian, beliau
berumur 12 tahun sembilan bulan dan masih menuntut dalam E
tingkatan satu di Sekolah Menengah Kebangsaan Taman
Jasmin, Kajang.
(b) SP4 dan responden berkenalan di Tesco Kajang. Responden

bertugas di kaunter pembayaran. Responden telah memberi F
nombor telefonnya kepada SP4. Selepas itu mereka selalu
berhubung melalui telefon.
(c) Pada 22 April 2008, SP4 dan kawannya bernama Didi telah
keluar dari kawasan sekolah dan pergi ke sebuah kedai mamak
G
yang terletak berhampiran dengan sekolah beliau. Tujuan SP4
keluar sekolah ialah untuk berjumpa dengan responden. SP4
kemudiannya telah menukar pakaian sekolah yang dipakainya
dengan T-shirt hitam dan seluar jeans. SP4 telah meninggalkan
beg sekolahnya dengan Didi.
H
(d) Responden datang ke kedai mamak dengan menaiki motosikal
jenis RX2. SP4 dan responden kemudiannya beredar dari situ
dengan menaiki motosikal tersebut menuju ke Kajang dan
seterusnya mereka telah menghabiskan masa di Taman Tasik
Chempaka, Bandar Baru Bangi sambil berborak-borak. Pada I
jam 5pm, SP4 dan responden telah pergi semula ke kedai
mamak untuk berjumpa Didi tetapi Didi tidak berada di situ.
60
PP lwn.
A (e) Responden mencadangkan mereka pergi ke Kuala Lumpur.

Mereka bermalam di bilik No. 102, Hotel No. One Lodge,
No. 1, Jalan Sarawak off Jalan Pudu, Kuala Lumpur. Di dalam
bilik tersebut mereka mandi, menonton tv dan tidur. Kedua-
dua SP4 dan responden hanya memakai tuala kerana sepanjang
B perjalananan ke Kuala Lumpur pakaian mereka basah akibat
hari hujan.
(f) Mengikut SP4, pada jam 1 pagi, responden telah mengejutkan

beliau dari tidur. Responden membuat isyarat tangan yang
C beliau faham sebagai isyarat untuk melakukan hubungan seks.
Responden juga telah menyuruh SP4 menghisap kemaluannya.
Pada masa tersebut, SP4 berada dalam keadaan terbaring di
atas tilam/katil dan responden pula berada dalam keadaan
mencangkung di atas badan SP4. SP4 nampak responden
D memasukkan kemaluannya ke dalam faraj (vagina) beliau.
Perbuatan responden tersebut membentuk pertuduhan
pertama.
(g) Pada jam 3 pagi, responden dan SP4 sekali lagi telah
mengadakan hubungan seks. Perbuatan responden tersebut
E
membentuk pertuduhan kedua.
(h) Sementara itu, SP10, iaitu kakak SP4, telah mendapati SP4
tidak pulang ke rumah selepas waktu persekolahan tamat pada
jam 6.30 petang. SP10 dan anggota keluarga telah berusaha
F mencari SP4 di beberapa tempat tetapi tidak menjumpainya.
Pada keesokan harinya, iaitu pada 24 April 2008, SP10 telah
membuat laporan polis berkenaan kehilangan SP4.
(i) Kemudiannya, SP10 telah berjaya mengesan SP4 dengan

G bantuan Didi. SP10 telah membawa SP4 ke Balai Polis Kajang
untuk membuat laporan polis (eks. P49). Seterusnya, SP10
telah membawa SP4 ke Hospital Kuala Lumpur (“HKL”)
untuk dibuat pemeriksaan lanjut.
(j) SP7, pegawai perubatan yang bertugas di Wad Ginekologi,

H
telah membuat pemeriksaan di bahagian faraj (vagina) SP4 dan
mendapati kesan koyakan baru pada posisi jam 6 dan terdapat
juga “abrasion” pada labia minora kanan. Beberapa specimen
telah diambil daripada SP4 untuk mengesan kehadiran air mani.
I
61
(k) SP11 telah menyerahkan kepada SP12 specimen yang diambil A

daripada SP4 beserta dengan pakaian, iaitu, T-shirt, seluar
jeans, baju dalam dan seluar dalam untuk ujian DNA.
(l) Selepas ujian DNA dilakukan, SP12 mendapati, antara lain,

satu profil campuran DNA dihasilkan daripada kesan air mani B
pada seluar jeans bertanda N11 di mana ia adalah konsisten
sebagai dihasilkan daripada satu penyumbang perempuan dan
satu penyumbang lelaki. Sumber-sumber yang diwakili oleh
specimen darah N1 berlabelkan xxx (SP4) dan N15
berlabelkan Mohd Malik Ridhzuan (responden) adalah C
konsisten sebagai penyumbang perempuan (minor) dan
penyumbang lelaki (major) bagi profil campuran ini.
[6] Selepas meneliti keterangan saksi-saksi pendakwaan,

Mahkamah Sesyen berpuashati bahawa pihak pendakwaan telah
D
berjaya membuktikan satu kes prima facie terhadap responden.
Justeru, responden telah dipanggil membela diri.
[7] Responden telah memberi keterangan atas sumpah dan tidak

memanggil mana-mana saksi-saksi untuk memberi keterangan. Pada
intipatinya, pembelaan responden ialah beliau tidak memasukkan E
kemaluannya ke dalam faraj (vagina) SP4. Mengikut responden,
beliau hanya memasukkan jari telunjuk dan jari hantunya ke dalam
faraj (vagina) SP4 beberapa kali sambil mencium SP4. Responden
kemudiannya telah melakukan onani hingga air maninya terpancut.
Responden melapkan air mani tersebut dengan menggunakan tisu F
dan membalingkan tisu tersebut ke sebelah katil, iaitu, di tempat
di mana pakaian mereka diletakkan.
[8] Di akhir kes pembelaan, hakim Mahkamah Sesyen

memutuskan bahawa keterangan responden telah berjaya G
menimbulkan satu keraguan yang munasabah terhadap kes
pendakwaan. Justeru, responden telah dilepas dan dibebaskan dari
kedua-dua pertuduhan yang dikemukakan terhadapnya.
[9] Hakim Mahkamah Tinggi yang bijaksana bersetuju dengan

H
keputusan Mahkamah Sesyen dan dalam alasan penghakimannnya
di ms. 34, perenggan 9, Jilid 1, rekod rayuan, berkata seperti
berikut:
Going through the notes of evidence, I find there was no other
evidence which may help to tilt the scale in favour of either the I
Respondent or the prosecution on the issue of what actually
penetrated SP4’s vagina. As such, when the learned trial judge
chooses to believe the Respondent’s version over that of SP4’s in
62
PP lwn.
A coming to her finding of fact, she neither went against the

available evidence nor the finding was grossly against the weight
of evidence.
Rayuan
B [10] Di hadapan kami, Timbalan Pendakwa terpelajar telah
menjuruskan hujahnya kepada satu isu sahaja bagi mencabar
keputusan yang dirayukan iaitu:
sama ada Hakim yang bijaksana telah terkhilaf di sisi undang-
C undang dan fakta apabila memutuskan bahawa koyakan pada faraj
(vagina) SP4 disebabkan oleh kemasukan jari telunjuk dan jari
hantu Responden sedangkan keterangan SP4 secara jelas
menyatakan bahawa Responden telah memasukkan kemaluannya ke
dalam faraj (vagina) SP4.
D Prinsip Undang-Undang Yang Terpakai Dalam Rayuan
[11] Prinsip undang-undang yang terpakai dalam sesuatu rayuan

telah dijelaskan dalam kes P’ng Hun Sun v. Dato’ Yip Yee Foo
[2013] 1 LNS 320; Rayuan Sivil No: W-02-528-2010, apabila
E
Mahkamah Rayuan menyatakan:
When the finding of the trial judge is factual, however, the fact
finder’s decision cannot be disturbed on appeal unless the decision
of the fact finder is plainly wrong (see China Airline Ltd v.
Maltran Air Corp Sdn Bhd & Another Appeal [1996] 3 CLJ 163);
F Zaharah bt A Kadir v. Ramuna Bauxite Pte Ltd & Anor [2011] 1
LNS 1015, Kyros International Sdn Bhd v. Ketua Pengarah Hasil
Dalam Negeri [2013] 3 CLJ 813; [2013] 1 LNS 1). The findings
of fact of the trial judge can only be reversed when it is positively
demonstrated to the appellate court that:
G (a) by reason of some non-direction or mis-direction or
otherwise the judge erred in accepting the evidence which he
or she did accept; or
(b) in assessing and evaluating the evidence the judge has taken
into account some matter which he or she ought not to have
H taken into account, or failed to take into account some matter
which he or she ought to have taken into account; or
(c) it unmistakenly appears from the evidence itself, or from the

unsatisfactory reasons given by the judge for accepting it,
that he or she cannot have taken proper advantage of his or
I
her having seen and heard the witnesses’; or
63
(d) in so far aside judge has relied on manner and demeanour, A

there are other circumstances which indicate that the evidence
of the witnesses which he or she accepted is not credible,
as for instance, where those witnesses have on some
collateral matter deliberately given an untrue answer.
[12] Dalam kes Dato’ Seri Anwar Ibrahim v. PP & Another Appeal B
[2004] 3 CLJ 737 Abdul Hamid HMP (sebagaimana beliau ketika
itu) berkata di ms. 752:
Clearly, an appellate court does not and should not put a brake
and not going any further the moment it sees that the trial judge C
says that is his finding of facts. It should go further and examine
the evidence and the circumstances under which that finding is
made to see whether, to borrow the words of HT Ong (CJ
Malaya) in Herchun Singh’s case (supra) “there are substantial and
compelling reasons for disagreeing with the finding.” Otherwise,
no judgment would ever be reversed on question of fact and the D
provision of s. 87 CJA 1964 that an appeal may lie not only on
a question of law but also on a question of fact or on a question
of mixed fact and law would be meaningless.
(lihat juga kes-kes Jagatheesan s/o Krishnasamy v. PP [2006] 4 SLR

E
45; Yap Giau Beng Terence v. PP [1998] 3 SLR 656; Sakthivel
Punithavathi v. PP [2007] 2 SLR 983; PP v. Selvarajoo
Ramachandran & Ors [2005] 6 CLJ 114; [2005] 5 MLJ 282, Sheo
Swarup v. King Emperor [1934] LR 61 1A 398).
[13] Kesimpulan yang boleh dibuat daripada kes-kes di atas ialah F

Mahkamah Rayuan adalah berkewajipan untuk mengganggu
sesuatu keputusan mahkamah bicara sekiranya didapati mahkamah
bicara tersebut telah secara serius menyalaharahkan dirinya
sehingga seseorang boleh menyatakan dengan selamat bahawa
tidak terdapat mana-mana mahkamah yang bertindak secara wajar G
dan yang dengan betul mengarahkan dirinya serta bertanyakan

soalan-soalan yang betul, akan membuat keputusan yang sama.
(Lihat Sivalingam Periasamy v. Periasamy & Anor [1996] 4 CLJ
545).
H
[14] Secara khusus mengenai kes-kes rogol, mahkamah juga perlu
mengambil perhatian kepada perkara-perkara berikut:
(a) bahawa adalah senang untuk seseorang membuat tuduhan

rogol; tetapi sukar bagi orang yang dituduh, walaupun beliau I
tidak bersalah, untuk membuktikan sebaliknya. (“An accusation
for rape can be made with ease; it is difficult for the person
accused, though innocent, to disprove it”);
64
PP lwn.
A (b) bahawa memandangkan bentuk intrinsik kesalahan rogol yang

pada kebiasaanya melibatkan hanya dua orang (perogol dan
mangsa), keterangan pengadu hendaklah dipertimbangkan
dengan secara berhati-hati. (“In view of the intrinsic nature of
the crime rape where two persons are usually involved, the
B testimony of the complaint must be securitised with extreme
caution”); dan
(c) bahawa jatuh-bangun kes pihak pendakwaan hendaklah

bergantung sepenuhnya kepada meritnya sendiri, dan ia tidak
C boleh dibenarkan untuk mendapat kekuatan daripada
kelemahan atau kecacatan dalam keterangan pihak pembelaan
(“The evidence for the prosecution must stand or fall on its
merits, and cannot be allowed to draw strength from the
weaknesses of the evidence for the defence”).
D
[15] Melihat secara sekilas pandang keputusan Hakim Sesyen
yang dipersetujui oleh Mahkamah Tinggi bahawa responden tidak
memasukkan kemaluannya ke dalam faraj (vagina) SP4 tetapi hanya
memasukkan jari telunjuk dan jari hantu, reaksi awal kami (“initial
impulse”) ialah untuk bersetuju dengan hujahan peguambela
E
terpelajar responden bahawa keputusan tersebut adalah penemuan
fakta yang disepakati oleh kedua-dua Mahkamah Sesyen dan
Mahkamah Tinggi dan dengan demikian tidak wajar diganggu.
Walau bagaimanapun, selepas meneliti fakta yang disandarkan oleh
kedua-dua mahkamah untuk membuat keputusan tersebut di dalam
F
rekod rayuan, kami mendapati penemuan fakta tersebut adalah
bertentangan dengan keberatan keterangan yang dikemukakan.
[16] Adalah tidak dipertikaikan bahawa kes pihak pendakwaan

adalah bertunjang kepada keterangan SP4. Justeru, adalah perlu
G keterangan SP4 diteliti secara mendalam dan terperinci. Di ms. 54
- 57, Jilid II, rekod rayuan, SP4 telah memberi keterangan
mengenai apa yang sebenarnya berlaku seperti berikut:
S : Lepas itu?
H
J : Lepas saya kulum kemaluan dia, lepas tu dia masukkan
kemaluan dia kepada kemaluan saya.
S : Macam mana tahu yang kemaluan Malek masuk dalam

kemaluan kamu?
I
J : Saya nampak.
65
S : Masa dia nak masukkan kemaluan dia, macam mana kaki A

kamu?
J : Dia kangkangkan kaki saya. Saya baring masa tu. Ada 2

bantal. Malek ada di hadapan saya di tepi kaki saya. Dia
duduk di tengah-tengah kaki saya.
B
S : Kamu baring menghadap mana?
J : Betul-betul ikut katil.
S : Mata kamu hadap ke mana?

C
J : Tengok tepi.
S : Kamu baring macam mana?
J : Terlentang.
D
S : Kamu terlentang, Malek di mana?
J : Di tengah saya dan dia kangkang.
S : Lepas dia kangkang, dia masukkan kemaluan?
J : Ya. E
S : Macam mana tahu dia masukkan kemaluan?
J : Saya tengok.
S : Rasa? F
J : Sakit, rasa keras lembik. Sakit.
S : Kamu baring. Malek?
J : Cangkung. G
S : Tangan Malek?
J : Dia pegang betis saya.
S : Di mana tangan kamu?

H
J : Saya pegang bantal.
S : Berapa lama dia masukkan kemaluan dia dalam kemaluan

kamu?
J : 2 minit. I
66
PP lwn.
A S : Lepas tu?
J : Dia pegang kemaluan dia.
S : Masa dia masukkan kemaluan dia ke dalam kemaluan kamu,

apa dia lakukan?
B
J : Dia masuk keluar, masuk keluar.
S : Berapa kali?
J : 2 kali.
C
S : Apa jadi
J : Lepas masuk keluar, masuk keluar, dia keluarkan kemaluan

dia dan dia goncang kemaluan dia dan keluarkan air mani.
Selepas dia goncang, air mani dia keluar dan lekat di perut
D saya. Dia keluarkan air mani dekat perut saya.
[17] Seterusnya di ms. 60, Jilid 2, rekod rayuan, SP4

menceritakan mengenai peristiwa hubungan seks kali kedua antara
beliau dan responden seperti berikut:
E S : Apa berlaku seterusnya?
J : Lepas Malek paksa, saya terima untuk lakukan hubungan

seks. Malek suruh saya hisap kemaluan dia. Saya hisap
kemaluan dia.
F S : Kenapa hisap?
J : Nak bagi keras. Lepas tu dia masukkan kemaluan dia dalam

pepet saya. Saya rasa sakit. Semasa ini tangan dia di perut
saya. Saya nampak kemaluan Malek masuk dalam kemaluan
saya. Selepas itu dia kocakkan kemaluan dia sampai keluar air
G mani di perut saya. Selepas itu saya dan Malek tidur, sehingga
pukul 5 pagi. Kami bangun pada jam 12 tengahari, saya dan
Malek keluar dari Hotel, balik ke Kajang dan kami pergi
karaoke hingga lebih kurang jam 3.30 pm. Habis karaoke,
Malek nak hantar saya balik.
H
[18] Semasa disoal balas pula, SP4 secara tegas dan tidak
teragak-agak menafikan bahawa terdapat kemasukan jari telujuk
dan jari hantu responden ke dalam farajnya (vagina). SP4
menyatakan di ms. 96, Jilid II, rekod rayuan seperti berikut:
I Put : Pagi 23.4.2008 semasa di bilik hotel, Malek tak buat seks
dengan kamu?
67
J : Tak setuju. A
Put : Pagi 23.4.2008 pada 1 pagi dan 3 pagi, Malek tak masukkan
kemaluan dia dalam kemaluan kamu?
J : Tak setuju.
B
Put : Malek hanya masukkan jari telunjuk dan jari hantu dalam
kemaluan kamu?
J : Tak setuju.
Put : 23.4.208 pada pagi, kamu tak hisap kemaluan Malek? C
J : Tak setuju.
[19] Di peringkat pemeriksaan semula juga, SP4 tetap menegaskan

bahawa responden dan beliau telah melakukan hubungan seks di
mana responden memasukkan kemaluannya ke dalam faraj (vagina) D
SP4. SP4 menyatakan:
S : Peguam cadangkan pada 23hb, kamu tak buat hubungan seks,
kamu tak setuju dengan cadangan peguam. Sila jelaskan.
J : Saya dan Malek ada buat hubungan seks pada 23hb sebanyak E
2 kali iaitu pada jam 1 pagi dan jam 3 pagi.
S : Kenapa tak setuju cadangan peguambela yang Malek

masukkan jari.
J : Saya nampak dia masukkan kemaluan dia dalam kemaluan F

saya.
S : Kenapa tak setuju dengan cadangan peguambela yang kamu

takut dengan kakak, oleh itu kamu reka cerita dirogol oleh
Malek. Jelaskan.
G
J : Memang saya buat hubungan seks dengan dia.
Adakah Keterangan Sokongan (“Corroboration”) Diperlukan
[20] Walaupun tidak terdapat peruntukan undang-undang di

Malaysia yang menghendaki bahawa keterangan pengadu dalam H
kes-kes seksual memerlukan keterangan sokongan, namun adalah

menjadi amalan mahkamah untuk melihat keterangan demikian.
Amalan ini telah dijelaskan dalam kes Din v. PP [1964] 1 LNS
242; [1964] MLJ 30 seperti berikut:
I
68
PP lwn.
A But the desirability for corroboration of the evidence of the

prosecutrix in a rape case (which in any event has not yet
crystallized into something approaching a rule of law and which is
still a rule of practice and of prudence) springs not from the
nature of the witness but from the nature of the offence. Never
has it been suggested that the evidence of a woman as such
B
invariably calls for corroboration. If a woman says her handbag
has been snatched and if she is believed there can be no question
of a conviction on such evidence being open to attack for want
of corroboration. If, however, she complains of having been raped
then both prudence and practice demand that evidence should be
C corroborated.
[21] Sepertimana juga kes-kes lain di mana keterangan sokongan

diperlukan sebagai suatu amalan, sabitan bagi kesalahan kes-kes
seksual boleh dibuat tanpa keterangan sokongan dengan syarat
D
mahkamah telah memberi amaran kepada dirinya mengenai bahaya
untuk bergantung hanya kepada keterangan tersebut dan
berpuashati bahawa adalah selamat untuk mengenepikan
keterangan sokongan. Dalam kes PP v. Mardai [1949] 1 LNS 65;
[1950] MLJ 33 Spencer Wilkinson J berkata di ms. 33:
E Whilst there is no rule of law in this country that in sexual
offences the evidence of the complainant must be corroborated;
nevertheless it appears to me, as a matter of common sense, to
be unsafe to convict in cases of this kind unless either the
evidence of the complainant is unusually convincing or there is
F some corroboration of the complainant’s story.
[22] Walau apa pun jua, pada pandangan kami, sekiranya

keterangan pengadu adalah “unusually convincing”, sabitan dalam
kes-kes seksual boleh dibuat tanpa keterangan sokongan. Kami
bersetuju dengan proposisi undang-undang yang dinyatakan di
G
dalam kes Kwan Peng Hong v. PP [2000] 4 SLR 96 (Mahkamah
Tinggi), apabila Yong Pung How CJ berkata di ms. 104:
But I also took great care to make clear that it is dangerous to
convict on the words of the complainant alone unless her evidence
H is unusually compelling or convincing (Tang Kin Seng v. PP [197]
1 SLR 46 at 58, Teo Keng Pong v. PP [1996] 3 SLR 32 (at 340
and Soh Yang Tick v. PP [1998] 2 SLR 42 at 50). In short, the
court is to be extremely cautious is relying on the sole evidence
of the complainant for a conviction. The phrase ‘unusually
compelling or convincing’ simply means that the complainant’s
I
evidence was so convincing that the prosecution’s case was
proven beyond reasonable doubt, solely on the basis of that
evidence.
69
[23] Nampaknya mahkamah-mahkamah di India juga telah A

mengambil pendekatan yang sama, iaitu sekiranya keterangan
pengadu dalam kes-kes seksual adalah kredible, dan meyakinkan, ia
adalah mencukupi untuk mensabitkan tertuduh tanpa keterangan
sokongan. Dalam kes tersohor Vijay @ Chinee v. State of Madhya
Pradesh [2010] 8 SCC 191, Mahkamah Agung India, setelah B
menyemak semula kes-kes yang berkaitan dengan keterangan
mangsa rogol, membuat pemerhatian yang berikut:
9. In State of Maharashtra vs. Chandraprakash Kewalchand Jain
AIR 1990 SC 658, this Court held that a woman, who is the C
victim of sexual assault, is not an accomplice to the crime but is
a victim of another person’s lust and, therefore, her evidence need
not be tested with the same amount of suspicion as that of an
accomplice. The Court observed as under:
A prosecutrix of a sex-offence cannot be put on par with D

an accomplice. She is in fact a victim of the crime. The
Evidence Act nowhere says that her evidence cannot be
accepted unless it is corroborated in material particulars.
She is undoubtedly a competent witness under Section 118
and her evidence must receive the same weight as is
attached to an injured in cases of physical violence. The E
same degree of care and caution must attach in the
evaluation of her evidence as in the case of an injured
complainant or witness and no more. What is necessary is
that the Court must be alive to and conscious of the fact
that it is dealing with the evidence of a person who is F
interested in the outcome of the charge levelled by her. If
the court keeps this in mind and feels satisfied that it can
act on the evidence of the prosecutrix, there is no rule of
law or practice incorporated in the Evidence Act similar to
illustration (b) to Section 114 which requires it to look for
corroboration. If for some reason the court is hesitant to G
place implicit reliance on the testimony of the prosecutrix it
may look for evidence which may lend assurance to her
testimony short of corroboration required in the case of an
accomplice. The nature of evidence required to lend
assurance to the testimony of the prosecutrix must H
necessarily depend on the facts and circumstances of each
case. But if a prosecutrix is an adult and of full
understanding the court is entitled to base a conviction on
her evidence unless the same is shown to be infirm and not
trustworthy. If the totality of the circumstances appearing
on the record of the case disclose that the prosecutrix does I
not have a strong motive to falsely involve the person
charged, the court should ordinarily have no hesitation in
accepting her evidence.
70
PP lwn.
A 10. In State of UP vs. Pappu @ Yunus & Anr. AIR 2005 SC 1248,
this Court held that even in a case where it is shown that the
girl is a girl of easy virtue or a girl habituated to sexual
intercourse, it may not be a ground to absolve the accused from
the charge of rape. It has to be established that there was consent
by her for that particular occasion. Absence of injury on the
B
prosecutrix may not be a factor that leads the court to absolve
the accused. This Court further held that there can be conviction
on the sole testimony of the prosecutrix and in case, the court is
not satisfied with the version of the prosecutrix, it can seek other
evidence, direct or circumstantial, by which it may get assurance
C of her testimony. The Court held as under:
It is well settled that a prosecutrix complaining of having

been a victim of the offence of rape is not an accomplice
after the crime. There is no rule of law that her testimony
cannot be acted without corroboration in material
D particulars. She stands at a higher pedestal than an injured
witness. In the latter case, there is injury on the physical
form, while in the former it is both physical as well as
psychological and emotional. However, if the court of facts
finds it difficult to accept the version of the prosecutrix on
E its face value, it may search for evidence, direct or
circumstantial, which would lend assurance to her testimony.
Assurance, short of corroboration as understood in the
context of an accomplice, would do.
11. In State of Punjab vs. Gurmit Singh & Ors AIR 1996 SC 1393,
F this Court held that in cases involving sexual harassment,
molestation etc. the court is duty bound to deal with such cases
with utmost sensitivity. Minor contradictions or insignificant
discrepancies in the statement of a prosecutrix should not be a
ground for throwing out an otherwise reliable prosecution case.
Evidence of the victim of sexual assault is enough for conviction
G
and it does not require any corroboration unless there are
compelling reasons for seeking corroboration. The court may look
for some assurances of her statement to satisfy judicial conscience.
The statement of the prosecutrix is more reliable than that of an
injured witness as she is not an accomplice. The Court further
H held that the delay in filing FIR for sexual offence may not be
even properly explained, but if found natural, the accused cannot
be given any benefit thereof. The Court observed as under:
The court overlooked the situation in which a poor helpless

minor girl had found herself in the company of three
I desperate young men who were threatening her and
preventing her from raising any alarm. Again, if the
investigating officer did not conduct the investigation
properly or was negligent in not being able to trace out the
71
driver or the car, how can that become a ground to A

discredit the testimony of the prosecutrix? The prosecutrix
had no control over the investigating agency and the
negligence of an investigating officer could not affect the
credibility of the statement of the prosecutrix ... The courts
must, while evaluating evidence remain alive to the fact that in
B
a case of rape, no self-respecting woman would come forward in a
court just to make a humiliating statement against her honour
such as is involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations which
have no material effect on the veracity of the prosecution
case or even discrepancies in the statement of the C
prosecutrix should not, unless the discrepancies are such
which are of fatal nature, be allowed to throw out an
otherwise reliable prosecution case ... Seeking corroboration
of her statement before replying upon the same as a rule,
in such cases, amounts to adding insult to injury ...
D
Corroboration as a condition for judicial reliance on the
testimony of the prosecutrix is not a requirement of law
but a guidance of prudence under given circumstances.
xxx
E
The courts should examine the broader probabilities of a
case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the
prosecutrix, which are not of a fatal nature, to throw out
an otherwise reliable prosecution case. If evidence of the
prosecutrix inspires confidence, it must be relied upon F
without seeking corroboration of her statement in material
particulars. If for some reason the court finds it difficult to
place implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony, short
of corroboration required in the case of an accomplice. The
G
testimony of the prosecutrix must be appreciated in the
background of the entire case and the trial court must be
alive to its responsibility and be sensitive while dealing with
cases involving sexual molestations.
12. In State of Orissa vs. Thakara Besra & Anr. AIR 2002 SC 1963, H
this Court held that rape is not mere a physical assault, rather it
often distracts the whole personality of the victim. The rapist
degrades the very soul of the helpless female and, therefore, the
testimony of the prosecutrix must be appreciated in the
background of the entire case and in such cases, non-examination
even of other witnesses may not be a serious infirmity in the I
prosecution case, particularly where the witnesses had not seen
the commission of the offence.
72
PP lwn.
A 13. In State of Himachal Pradesh vs. Raghubir Singh (1993) 2 SCC

622, this Court held that there is no legal compulsion to look for
any other evidence to corroborate the evidence of the prosecutrix
before recording an order of conviction. Evidence has to be
weighed and not counted. Conviction can be recorded on the sole
testimony of the prosecutrix, if her evidence inspires confidence
B
and there is absence of circumstances which militate against her
veracity.
14. A similar view has been reiterated by this Court in Wahid

Khan vs. State of Madhya Pradesh (2010) 2 SCC 9, placing reliance
C on earlier judgment in Rameshwar vs. State of Rajasthan AIR 1952
SC 54.
15. Thus, the law that emerges on the issue is to the effect that
statement of prosecutrix, if found to be worthy of credence and
reliable, requires no corroboration. The court may convict the
D accused on the sole testimony of the prosecutrix. (penekanan
ditambah).
[24] Dalam kes di hadapan mahkamah ini, Hakim Sesyen telah

memutuskan bahawa SP4 ialah seorang saksi yang kredible dan
keterangannya adalah jelas menunjukkan bahawa responden
E
sesungguhnya telah memasukkan kemaluannya ke dalam faraj
(vagina) beliau. Di ms. 18 - 19, Jilid 2, rekod rayuan, Hakim
Sesyen menyatakan:
Berdasarkan keterangan mangsa, adalah jelas bahawa tertuduh
F telah memasukkan kemaluannya ke dalam kemaluan mangsa
seperti di dalam kedua-dua pertuduhan. Mahkamah berpendapat
sedemikian kerana keterangan mangsa mengenai perlakuan seks
adalah seperti orang yang pernah melakukannya. Mangsa
mengatakan bahawa dia berbaring sambil berbogel dan tertuduh
juga dalam keadaan berbogel telah kangkangkan kaki mangsa dan
G
tertuduh berada di celah kaki mangsa. Dalam keadaan mereka
yang sedemikian itu ada kemungkinan besar tertuduh berjaya
memasukkan kemaluannya ke dalam kemaluan mangsa. Mangsa
tidak meronta-ronta, tidak menendang dan tidak mengepitkan
kakinya bagi mengelakkan kemaluan tertuduh masuk ke dalam
H kemaluannya. Mahkamah juga melihat kepada tingkahlaku/
demeanour mangsa semasa memberi keterangan, dan Mahkamah
membuat kesimpulan bahawa pada setiap masa tersebut mangsa
dalam keadaan yang ghairah apatah lagi apabila bersama
“kekasihnya”. Mangsa dengan sepenuh hati merelakan perlakuan
tertuduh terhadapnya. Mahkamah tidak menolak kemungkinan
I
bahawa sebagai pasangan “kekasih” yang baru, mereka berdua
berada jauh dari kawalan ibubapa, mereka adalah bebas mencuba
73
satu pengalaman yang baru dalam hidup mereka. Mahkamah A

percaya bahawa mangsa tahu membezakan antara jari dan
kemaluan tertuduh, mangsa tidak keliru dengan “apa” yang masuk
ke dalam kemaluannya, mangsa pasti benda itu ialah kemaluan
tertuduh yang terlebih dahulu telah dikulum di dalam mulutnya.
Pada tahap kes pendakwaan, Mahkamah dapati pihak pendakwaan
B
melalui keterangan mangsa saja telah berjaya membuktikan
kemasukan kemaluan tertuduh ke dalam kemaluan mangsa.
[25] Mengenai keterangan sokongan, peguambela terpelajar

responden berhujah bahawa dua orang saksi bebas pendakwaan,
iaitu doktor yang memeriksa SP4 pada 24 April 2008 (SP7) dan C
ahli kimia yang membuat analisis DNA (SP12), serta keterangan
SP6 dan SP4 sendiri menyokong keterangan yang diberikan oleh
responden bahawa beliau tidak memasukkan kemaluannya ke dalam
faraj (vagina) SP4 tetapi hanya memasukkan jari telunjuk dan jari
hantu sahaja. D
[26] Peguambela terpelajar responden menjemput perhatian

mahkamah kepada keterangan SP7 seperti berikut seperti yang
terdapat di ms. 190, Jilid 2, rekod rayuan:
E
Q : Rujuk P16 di para 2, jawapan “ya”, sila rujuk gambar rajah
bolehkah kecederaan disebabkan oleh kemasukkan jari ke dalam
bahagian sulit
A : Boleh.
Di muka surat 126, Jilid 2, Rekod Rayuan: F
Q : Kecederaan disebabkan oleh apa?
A : Boleh disebabkan oleh objek yang tumpul dan pejal.
Q : Tidak semestinya melalui sexual intercourse? G
A : Boleh.
Di muka surat 122, Jilid 2, Rekod Rayuan:
Q : Merely masukkan finger boleh cause tear? H
A : Yes.
Di muka surat 123, Jilid 2, Rekod Rayuan:
Q : Jika jari masuk boleh sebabkan abrasion?

I
A : Boleh.
74
PP lwn.
A [27] Peguambela terpelajar responden seterusnya menjemput

perhatian mahkamah kepada keterangan-keterangan berikut:
Keterangan SP12
Q : Andaikan individu normal dan ada ejaculation 2 kali intercourse

B dengan perempuan, 1st intercourse pada waktu 1 pagi dan
ejaculation. 2nd intercourse selepas 2 jam. Pada 2nd
intercourse adakah kemungkinan untuk jumpa semen pada
vagina swab?
A : Ya.
C
(lihat muka surat 226, Jilid II, Rekod Rayuan)
Keterangan SP4
Q : Lepas hisap kemaluan Malek, air mani keluar?

D
A : Ya.
Q : Apa keadaan kemaluan Malek selepas itu?
A : Lembik.
E
Q : Selepas itu dia masukkan kemaluan di dalam kemaluan kamu?
A : Ya.
(lihat muka surat 88, Jilid II, Rekod Rayuan)

F
...
Q : Lepas keluar masuk kemaluan dia dalam kemaluan kamu, air

mani keluar?
A : Ya.
G
(lihat muka surat 88 – 89 Jilid II, Rekod Rayuan).
[28] Peguambela terpelajar responden berhujah bahawa swab

yang diambil tidak menunjukkan terdapatnya air mani
H
(spermatozoa) responden di dalam faraj SP4 sedangkan hubungan
seks dikatakan telah dilakukan sebanyak dua kali iaitu pada jam 1
pagi dan 3 pagi, dengan tidak menggunakan kondom. Justeru,
dihujahkan adalah tidak munasabah tidak terdapat air mani
responden di dalam faraj (vagina) SP4 jika sebenarnya hubungan
I
seksual dengan kemasukan kemaluan telah dilakukan.
75
[29] Bagi menyokong hujahan beliau, peguambela terpelajar A

responden merujuk kepada kes-kes PP v. Rajan Sinniah [2007] 8
CLJ 674 dan Aparav Sathiah v. PP [1997] 2 CLJ Supp. 391.
[30] Dengan hormat, kami tidak bersetuju dengan hujahan

peguambela terpelajar responden. Melihat secara teliti keterangan B
SP7 dan SP12, mereka tidak pada bila-bila masa pun menyatakan
bahawa tidak berlaku kemasukan kemaluan responden ke dalam
faraj (vagina) SP4. Apa yang dikatakan oleh SP7 ialah bahawa
koyakan berkemungkinan boleh juga disebabkan oleh kemasukan
jari responden ke dalam kemaluan SP4 atau berkemungkinan boleh C
juga disebabkan oleh kemasukan objek yang tumpul dan pejal.
Koyakan tersebut tidak semestinya boleh disebabkan oleh
hubungan seksual semata-mata. Tentunya SP7 tidak boleh memberi
pendapat bahawa koyakan pada kemaluan SP4, adalah disebabkan
kemasukan kemaluan responden ke dalam faraj (vagina) SP4 telah D
berlaku. Keputusan demikian adalah menjadi tugas mahkamah.
[31] Adalah menjadi undang-undang mantap bahawa bagi

membuktikan kesalahan rogol, kemasukan penuh kemaluan ke
dalam faraj (vagina) dan terkeluarnya air mani adalah tidak
E
diperlukan. Dalam buku Medical Jurisprudence and Toxicology (21st
edn.) oleh Modi, dinyatakan di ms. 61 seperti berikut:
Thus to constitute the offence of rape it is not necessary that
there should be complete penetration of penis with emission of
semen and rupture of hymen. Partial penetration of the penis F
within the Labia majora or the vulva or pudenda with or without
emission of semen or even an attempt at penetration is quite
sufficient for the purpose of the law. It is therefore quite possible
to commit legally the offence of rape without producing any injury
to the genitals or leaving any seminal stains. In such a case the
G
medical officer should mention the negative facts in his report, but
should not give his opinion that no rape had been committed.
Rape is crime and not a medical condition. Rape is a legal term
and not a diagnosis to be made by the medical officer treating the
victim. The only statement that can be made by the medical
officer is that there is evidence of recent sexual activity. Whether H
the rape has occurred or not is a legal conclusion, not a medical
one.
I
76
PP lwn.
A [32] Dalam kes Madan Gopal Kakkad v. Naval Dubey & Another
[1992] 3 SCC 204, Mahkamah Agung India telah merujuk kepada
Parikhs Textbook of Medical Jurisprudence and Toxicology dan berkata
seperti berikut:
B 38. In Parikhs Textbook of Medical Jurisprudence and Toxicology, the

following passage is found:
Sexual intercourse: In law, this term is held to mean the slightest

degree of penetration of the vulva by the penis with or without
emission of semen. It is therefore quite possible to commit legally
C the offence of rape without producing any injury to the genitals
or leaving any seminal stains.
39. In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it

is stated:
D … even slight penetration is sufficient and emission is

unnecessary. Therefore, absence of injuries on the private parts
of a victim specially a married lady cannot, ipso facto, lead to an
inference that no rape has been committed.
The essentials of the offence have been described in 2009 CriLJ

E 396 State of Punjab vs. Rakesh Kumar thus:
“Rape” or “Raptus” is what a man hath carnal knowledge of a

woman by force and against her will (Co. Litt.123-b); or as
expressed more fully, ‘rape is the carnal knowledge of any
woman, above the age of particular years, against her will; or of
F
a woman child, under that age, with or against her will’ (Hale PC
628). The essential words in an indictment for rape are rapuit and
carnaliter cognovit; but carnaliter cognovit, nor any other
circumlocution without the word rapuit, are not sufficient in a legal
sense to express rape; 1 Hon.6, 1a, 9 Edw. 4, 26a (Hale PC
G 628). In the crime of rape, ‘carnal knowledge’ means the
penetration to any the slightest degree of the organ alleged to
have been carnally known by the male organ of generation
(Stephen’s “Criminal Law” 9th Ed. p. 262). In ‘Encyclopodia of
Crime and Justice’ (Volume 4, page 1356) it is stated “ … even
slight penetration is sufficient and emission is unnecessary”. In
H Halsbury’s Statutes of England and Wales (Fourth Edition) Volume
12, it is stated that even the slightest degree of penetration is
sufficient to prove sexual intercourse. It is violation with violence
of the private person of a woman-an-outrage by all means. By
the very nature of the offence it is an obnoxious act of the
I highest order.
77
[33] Kami mendapati penjelasan yang diberikan oleh Mahkamah A

Agung Filipina dalam kes People v. Campuhan 385 Phil 912 [2000],
mengenai parameter “genital contact” dalam kes-kes rogol boleh
membantu fahaman kita dalam perkara ini. Mahkamah menyatakan:
Thus, touching when applied to rape cases does not simply mean B
mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the
victim’s vagina, or the mons pubis, as in this case. There must
be sufficient and convincing proof that the penis indeed touched
the labias or slid into the female organ, and not merely stroked
the external surface thereof, for an accused to be convicted of C
consummated rape. As the labias, which are required to be
“touched” by the penis, are by their natural situs or location
beneath the mons pubis or the vaginal surface, to touch them
with the penis is to attain some degree of penetration beneath the
surface, hence, the conclusion that touching the labia majora or D
the labia minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female

genital organs that are visible in the perineal area, eg, mons pubis,
labia majora, labia minora, the hymen, the clitoris, the vaginal
orifice, etc. The mons pubis is the rounded eminence that E
becomes hairy after puberty, and is instantly visible within the
surface. The next layer is the labia majora or the outer lips of
the female organ composed of the outer convex surface and the
inner surface. The skin of the outer convex surface is covered
with hair follicles and is pigmented, while the inner surface is a
F
thin skin which does not have any hair but has many sebaceous
glands. Directly beneath the labia majora is the labia minora.
Jurisprudence dictates that the labia majora must be entered for
rape to be consummated, and not merely for the penis to stroke
the surface of the female organ. Thus, a grazing of the surface
of the female organ or touching the mons pubis of the pudendum G
is not sufficient to constitute consummated rape. Absent any
showing of the slightest penetration of the female organ, ie,
touching of either labia of the pudendum by the penis, there can
be no consummated rape; at most, it can only be attempted rape,
if not acts of lasciviousness. (emphasis added).
H
[34] Pada hemat kami, ketidakhadiran air mani (spermatozoa) di
dalam faraj (vagina) SP4 bukanlah bermakna tidak berlaku
kemasukan kemaluan responden ke dalam faraj (vagina) SP4.
Kehadiran air mani bukanlah merupakan satu keperluan undang-
undang bagi membuktikan kesalahan rogol. Bagi kesalahan rogol, I
apa yang diperlukan ialah kemasukan (“penetration”) dan bukannya
terkeluar atau terpancutnya air mani (“ejaculation”).
78
PP lwn.
A Penilaian Keterangan Di Akhir Kes Pembelaan
[35] Di akhir kes pembelaan, hakim Mahkamah Sesyen

memutuskan bahawa keterangan responden telah menimbulkan
keraguan yang munasabah terhadap kes pendakwaan. Di ms. 17,
B Jilid 2, rekod rayuan, beliau menyatakan:
Setelah mendengar keterangan tertuduh, Mahkamah berpuashati
bahawa tertuduh telah berjaya menimbulkan satu keraguan yang
munasabah dalam kes pendakwaan dan faedah keraguan tersebut
haruslah diberikan kepada tertuduh. Keraguan yang ditimbulkan
C ialah adakah tertuduh memasukkan kemaluannya ke dalam
kemaluan mangsa atau tertuduh memasukkan jari telunjuk dan jari
hantu ke dalam kemaluan mangsa. Bagi menentukan perkara ini
Mahkamah melihat dan meneliti semula keterangan mangsa dan
keterangan SP7 (Dr. Noor Shaheeran bt Abdul Hayi).
D [36] Adalah menjadi undang-undang mantap bahawa responden
adalah berhak untuk dibebaskan sekiranya keterangan yang
dikemukakan semasa pembelaannya telah menimbulkan satu
keraguan yang munasabah terhadap kes pihak pendakwaan (lihat
Mohamad Radhi Yaakob v. PP [1991] 3 CLJ 2073; [1991] 1 CLJ
E (Rep) 311; [1991] 3 MLJ 169, Pang Chee Meng v. PP [1992] 1
CLJ 39; [1992] 1 CLJ (Rep) 265; [1992] 1 MLJ 137).
[37] “Keraguan munasabah” telah dijelaskan dalam kes PP v.

Saimin & Ors [1971] 1 LNS 115; [1971] 2 MLJ 16 seperti
F berikut:
It has again been said that ‘reasonable doubt’ is the doubt which
makes you hesitate as to the correctness of the conclusion which
you reach. If under your oaths and upon your consciences, after
you have fully investigated the evidence and compared it in all its
G parts, you say to yourself I doubt if he is guilty, then it is a
reasonable doubt. It is a doubt which settles in your judgment
and finds a resting place there. Or as sometimes said, it must be
a doubt so solemn and substantial as to produce in the minds of
the jurors some uncertainty as to the verdict to be given.
H A reasonable doubt must be a doubt arising from the evidence or
want of evidence and cannot be an imaginary doubt or conjecture
unrelated to evidence.
I
79
[38] Dalam nada dan irama yang sama, VK Rajah JA menyatakan A

dalam kes Sakthivel Punithavati v. PP [2007] 2 SLR 983; [2007]
SGHC 54, seperti berikut:
79 A coherent and workable definition of “reasonable doubt” is
indispensable for the proper and consistent application of the
criminal evidential burden of proof. In Jagatheesan, I endorsed the B
use of a working definition that described “reasonable doubt” as
“reasoned doubt”: at [55]. This definition mandates that all doubt,
for which there is a reason related to and supported by the
evidence presented, must be excluded. Reasonable doubt might
also arise by virtue of the lack of evidence submitted, if such C
evidence is necessary to support the prosecution’s theory of
guilt: Jagatheesan at [61]. I am of the view that this particular
formulation of reasonable doubt correctly shifts the focus from
what could potentially be a purely subjective call on the part of
the trial judge to a more objective one, requiring the trial judge to
reason strictly in accordance with the evidence. The trial judge D
must be able to say precisely why and how the evidence supports
the Prosecution’s theory of the accused’s guilt. This effectively
inhibits and constrains the subjectivity of the trial judge’s fact-
finding mission. I have adopted the same approach in the present
case. However, I pause here to caution, that requiring a trial E
judge to furnish the reasons for his decision does not require or
compel him to seek or extract those reasons purely or mainly
from arguments or testimony from the Defence. The burden of
proof invariably falls (subject to statutory adjustments) on the
Prosecution, and the requirement of reasoned justice does not and
cannot shift that burden. In this context, it will also be helpful to F
bear in mind that legal concepts of certainty and doubt should not
be perceived or assessed as mathematical or scientific certainties;
see [77] above.
[39] Berdasarkan prinsip undang-undang di atas, dengan hormat
G
kami berpendapat bahawa penilaian keterangan yang dibuat oleh
Hakim Sesyen yang dipersetujui oleh Hakim Mahkamah Tinggi
adalah tidak konsisten semasa kes pihak pendakwaan dan kes
pembelaan atau apa yang disifatkan oleh Timbalan Pendakwa Raya
terpelajar dalam hujahan bertulisnya sebagai “blowing hot and cold
H
as to the factum of rape in her justification to acquit the
respondent at the close of defence case”. Selepas membuat
penemuan positif di peringkat kes pendakwaan bahawa responden
telah memasukkan kemaluannya ke dalam faraj (vagina) SP4 dan
telah mengambilkira bahawa terdapat keterangan sokongan
I
(“corroboration”) bagi menyokong keterangan SP4, Hakim Sesyen
telah mengubah pendiriannya dan mempercayai bahawa terdapat
kemungkinan bahawa hanya jari telunjuk dan jari hantu yang
dimasukkan oleh responden.
80
PP lwn.
A [40] Apa yang memeranjatkan ialah salah satu alasan yang

diberikan oleh Hakim Sesyen bagi memutuskan bahawa terdapat
kemungkinan jari telunjuk dan jari hantu responden dimasukkan ke
dalam faraj (vagina) SP4 ialah alasan berikut:
B … Sebagai remaja berusia 20 tahun yang belum berkahwin, ada

kemungkinan Tertuduh tidak berani untuk memasukkan
kemaluannya ke dalam kemaluan mangsa. Cara yang paling
selamat untuk memuaskan nafsunya ialah dengan cara memasukkan
kedua-dua jarinya ke dalam kemaluan mangsa dan melepaskan air
maninya secara melancap/onani.
C
(lihat ms. 21, Jilid 2, rekod rayuan)
[41] Pada hemat kami, inferen tersebut tidak disokong oleh mana-
mana keterangan dan merupakan “fanciful conjecture” semata-
mata. Perlu diambil perhatian bahawa Hakim Sesyen dalam
D
penghakimannya sendiri telah mengakui bahawa SP4 tahu
membezakan antara jari dan kemaluan responden dan SP4 tidak
keliru dengan “apa” yang dimasukkan ke dalam farajnya. SP4 pasti
bahawa “apa” yang dimasukkan oleh responden adalah
kemaluannya kerana SP4 telah terlebih dahulu menghisap/kulum
E
kemaluan di dalam mulutnya.
[42] Pada pandangan kami, selepas menimbangkan keseluruhan

keterangan kes ini, keterangan responden yang mengatakan bahawa
beliau tidak memasukkan kemaluannya ke dalam faraj (vagina) SP4
F adalah merupakan satu penafian semata-mata yang tidak boleh
menimbulkan satu keraguan yang munasabah terhadap kes
pendakwaan. Adalah menjadi undang-undang mantap bahawa
penafian, jika tidak disokong oleh keterangan yang kukuh dan
boleh dipercayai, adalah “self-serving assertion” yang tidak
G mempunyai apa-apa nilai/keberatan keterangan di sisi undang-
undang. Pernafian yang dibuat tidak boleh mengatasi keterangan
positif, jelas dan tegas pengadu bahawa sebenarnya responden
telah memasukkan kemaluannya ke dalam faraj (vagina) beliau.
H [43] Pada hemat kami, Hakim Sesyen telah menyalaharah dirinya

apabila beliau telah menukar pendiriannya di akhir kes pembelaan
bahawa terdapat kemungkinan responden memasukkan jari telunjuk
dan jari hantu ke dalam faraj (vagina) SP4 sedangkan terdapat
keterangan kukuh yang beliau sendiri telah mempercayainya tanpa
I ragu-ragu bahawa responden sebenarnya telah memasukkan
kemaluannya ke dalam faraj (vagina) SP4 dan SP4 dapat
memastikan perkara ini kerana beliau telah mengkulum kemaluan
81
responden sebelum itu. Tidak ada apa-apa keterangan yang boleh A

menyokong perkara ini selain dari “self-serving assertion”
responden semata-mata.
[44] Dalam hal sedemikian, adalah menjadi tugas mahkamah ini

untuk mengganggu keputusan yang dibuat oleh Hakim Sesyen B
yang dipersetujui oleh hakim Mahkamah Tinggi.
[45] Dalam kes Ku Lip See v. PP [1981] 1 LNS 209, mahkamah

membuat pemerhatian berikut:
The Public Prosecutor appealed against the whole of the decision C
of the learned President. The appellate judge Yusof Abdul
Rashid J held that there was no basis at all to found any
reasonable doubt on the case for the prosecution. The learned
President himself made positive findings of fact to establish that
the girl was raped corroborated by medical evidence and he
D
accepted and believed the girl’s evidence that the applicant was the
person who had sexual intercourse with her. The learned judge
referred to that passage in the learned President’s judgment where
he said -
With regard to the second ingredient that the accused raped her, E
there was no corroboration of her evidence. Nevertheless after
closely scrutinising her evidence I accepted her evidence that it was
the accused who had raped her. The accused was no stranger to
her as she had seen him for some time in the village.
The learned judge went on to say that he found it difficult to F

understand how the President could entertain doubt on the
prosecution case merely on the strength of the applicant’s denial
and his observation of the demeanour of the applicant after making
specific findings of fact at the close of the prosecution case that
the applicant had raped the girl …
G
[46] Justeru, kami telah membenarkan rayuan ini dan
mengenepikan perintah pelepasan dan pembebasan yang dibuat
oleh Hakim Sesyen yang disahkan oleh Hakim Mahkamah Tinggi.
Responden didapati bersalah dan disabitkan.
H
Hukuman
[47] Dalam menimbangkan hukuman yang setimpal dan wajar

terhadap responden, kami telah memberi pertimbangan terhadap
faktor-faktor yang berikut:
I
82
PP lwn.
A (a) Pada masa kejadian, SP4 berumur 12 tahun sembilan bulan

dan masih menuntut di tingkatan satu. Responden pula
berumur 20 tahun dan bekerja di Tesco Kajang.
(b) Perhubungan seks telah dilakukan sebanyak dua kali pada

B malam yang sama. Perhubungan seks tersebut dilakukan secara
sukarela dan tiada elemen kekerasan dan paksaan. Tiada apa-
apa kecederaan tubuh badan di alami oleh SP4.
(c) Responden telah mengambil kesempatan atas kenaifan SP4

apabila membawa SP4 untuk bermalam di hotel di Kuala
C
Lumpur dengan tujuan untuk mengadakan hubungan seks.
(d) Persetujuan SP4 untuk mengadakan hubungan seks adalah

tidak relevan apabila mangsa berada di bawah umur. Dalam
perkara ini, kami bersetuju dengan pandangan yang diberikan
D oleh Mahkamah Singapura dalam kes Tay Kim Kuan v. PP
[2001] 2 SLR(R) 876, yang walaupun dibuat dalam konteks
the Women’s Charter tetapi terpakai juga dalam kes seperti ini:
13 In my view, issues of consent are entirely irrelevant to
E
offences under s. 140(1)(i) of the Women’s Charter, the
policy of which is to afford blanket protection to young
girls who are regarded by the statute as being mentally and
emotionally unprepared to handle relationships of a sexual
nature. Girls under the age of 16 are thus deemed by the
law to be incapable of giving valid consent to a sexual act,
F and, in my view, rightly so, as many at that age are ill-
equipped to handle the serious social consequences which
often arise out of just one single night of reckless passion.
These girls often lack not just the resources but the
emotional strength of mind to cope with the heavy
G
responsibilities of an unplanned pregnancy and worse, the
physical and psychological trauma of having to undergo an
abortion. The spectre of unwanted children, its links to
juvenile delinquency and the concomitant effects on the
progress of modern society all collectively favour the
legislative policy of strict liability where sexual intercourse
H with underaged girls is concerned. Much as these girls may
have procured or actively initiated the encounter, the
purpose of s. 140(1)(i) is to place the onus on the male
adult to exercise restraint and discipline in curbing his
carnality. In this respect, the law may be said to be
paternalistic, and perhaps even overprotective in seeking to
I
guard young girls from a precocious desire for sexual
experience. Nevertheless the social and humane reasons for
such a welfare state of the law are too compelling to be
83
ignored. In my view, the court has to send out a clear A

signal to the public that men who engage in sexual
intercourse with girls under 16 do so at their own peril.
16 While I accepted counsel’s argument that the extent to B

which a victim agreed to and encouraged what was done is
relevant to an accused’s mitigation, it was not the be-all
and end-all of the matter. Many other factors also have to
be looked at at the same time. As already alluded to,
consent per se is not a defence to an offence under
C
s. 140(1)(i) of the Women’s Charter. Quite frankly, I found
the whole argument about consent to be difficult to
comprehend since a lack of consent in the first place would
have attracted a charge of rape under the more serious
provisions of the Penal Code (Cap 224), rather than merely
the statutory offence prescribed by the Women’s Charter. D
Similarly if there had indeed been any trickery, deception or
violence, then any consent given by the woman would
clearly have been vitiated, thus warranting a charge of rape
as well. As a result, I am of the view that consent of the
girl should not be treated as a mitigating factor in cases
E
under s. 140(1)(i) as it appears to me that such consent
would in any event have been forthcoming in a majority of
the cases brought under s. 140(1)(i) anyway.
[48] Kami juga mendapati prinsip yang diputuskan dalam kes

Nor Afizal Azizan v. PP [2012] 6 CLJ 370 adalah tidak terpakai F
dalam kes ini kerana fakta dalam kedua-dua kes adalah berbeza.
Dalam kes Nor Afizul Azizan, perayu telah mengaku bersalah
semenjak dari awal lagi. Tambahan pula, mahkamah dalam kes
tersebut telah menyatakan bahawa pandangan yang diberikan itu
tidak harus diambil sebagai berhasrat untuk melaksanakannya G
secara menyeluruh atau terpakai kepada kesemua kes yang
melibatkan pesalah muda yang dituduh dengan kesalahan seperti
perayu. Hukuman yang saksama adalah bergantung kepada fakta
dan keadaan yang wujud dalam sesuatu kes.
H
[49] Selepas menimbang kepada faktor-faktor di atas, kami
berpendapat hukuman lapan tahun terhadap setiap pertuduhan,
yang berjalan serentak, adalah saksama, wajar dan adil dalam kes
ini.
I
84
ALAGGANDIRAN VELLU A
v.
PP
COURT OF APPEAL, PUTRAJAYA B

SURIYADI HALIM OMAR JCA
KN SEGARA JCA
AHMAD MAAROP JCA
[CRIMINAL APPEAL NO: B-05-6-2006]
12 OCTOBER 2009 C
CRIMINAL LAW: Penal Code - Section 302 - Murder - Appeal against

conviction and sentence - Evaluation of evidence by trial judge - Standard
of proof - Close of prosecution’s case - Conclusion of trial - Evidence of
interested witness and accomplice, whether credible - Defence of accused D
CRIMINAL PROCEDURE: Trial - Close of prosecution’s case -

Standard of proof applicable - Prima facie case
CRIMINAL PROCEDURE: Trial - Conclusion of trial - Evaluation of

evidence adduced - Whether prosecution proved its case beyond reasonable E
doubt
CRIMINAL PROCEDURE: Defence - Explanation by accused -

Whether a mere denial - Whether case proved beyond reasonable doubt
F
EVIDENCE: Burden of proof - Standard of proof for criminal
prosecutions - Close of prosecution’s case - Conclusion of trial - Evaluation
of evidence at all stages of trial
EVIDENCE: Standard of proof - Prosecution to prove elements of offence

beyond reasonable doubt - Evaluation of evidence at conclusion of trial G
EVIDENCE: Witness - Interested witness - Whether witness an interested

witness - Corroboration - Whether trial judge exercised sufficient caution
in accepting evidence of said witness
H
EVIDENCE: Accomplice - Whether witness an accomplice -
Corroboration - Whether evidence of accomplice credible - Whether safe to
act on said evidence
This was an appeal by the accused against the High Court’s

I
decision convicting him of the deceased’s murder and sentencing
him to death under s. 302 of the Penal Code. The accused
submitted, inter alia, the following grounds: (i) the trial judge had
85
[2010] 4 CLJ Alaggandiran Vellu v. PP 411
A erred at the close of the prosecution’s case by wrongly evaluating

the evidence before him; and (ii) the trial judge was not cautious
when accepting the evidence of the deceased’s brother, SP3 (an
interested witness), and SP7 (an accomplice) wholly without
independent corroboration.
B
Held (dismissing the appeal, and affirming the conviction and
sentence)
Per KN Segara JCA delivering the judgment of the court:
(1) The trial judge had applied all the correct principles and tests
C
in evaluating the evidence for the prosecution and the defence
at all stages of the trial. He also had not erred in his finding
of facts and had not occasioned any serious miscarriage of
justice or misdirection to warrant the accused’s acquittal. A
careful perusal of his judgment showed that he was fully aware
D
that the standard of proof on the prosecution at the close of its
case is to make out a prima facie case and that at the
conclusion of the trial the court shall consider all the evidence
adduced and decide whether the prosecution has proved its case
beyond reasonable doubt. (paras 12 & 13)
E
(2) There was no doubt that SP3 and SP7 were crucial prosecution
witnesses on whose testimonies the charge against the accused
rested heavily. If their testimonies were rejected, the accused
must be acquitted. However, the trial judge was correct in
F accepting their evidence as credible. On the facts, SP3 was at
the scene and had seen the accused stab his brother. He was
surely an interested witness in that he would most certainly
wish to have the perpetrator/s punished for his brother’s death.
All that the law demands is that SP3’s evidence be scrutinised
G with sufficient caution to safeguard against any temptation to
falsely implicate the accused. It was clear that the trial judge
had exercised sufficient caution in accepting SP3’s evidence.
The trial judge made a positive finding that SP7 was an
accomplice, and it is a rule of prudence that it is unsafe to act
H on the evidence of an accomplice unless it is corroborated in
material aspects so as to implicate the accused. In this instance,
it was manifest that his evidence was sufficiently corroborated by
SP3’s evidence and credence must be given to it. They were
both at the scene and witnessed the accused stabbing the
I deceased. The findings of the pathologist also supported their
evidence that the deceased was stabbed with a knife. (paras 14,
15, 16 & 17)
86
(3) This court was satisfied that the trial judge had considered the A
accused’s defence – that he did not stab the deceased and, on
the contrary, it was the deceased who had stabbed him – very
carefully and had, at the conclusion of the trial, made a finding
that it was a bare denial. He found that the prosecution had
proved its case beyond reasonable doubt. (paras 18 & 19) B
Bahasa Malaysia Translation Of Headnotes
Ini adalah rayuan tertuduh terhadap keputusan Mahkamah Tinggi

menyabitkannya atas pembunuhan si mati dan mengenakan
C
hukuman mati ke atasnya di bawah s. 302 Kanun Keseksaan.
Tertuduh menghujah, antara lain, alasan-alasan berikut: (i) hakim
perbicaraan telah khilaf pada penghujung kes pendakwaan apabila
salah menimbangkan keterangan di hadapannya; dan (ii) hakim
perbicaraan tidak berhati-hati apabila menerima keterangan adik-
D
beradik si mati, SP3 (seorang saksi berkepentingan), dan SP7
(seorang rakan jenayah) keseluruhannya tanpa sokongan bebas.
Diputuskan (menolak rayuan, dan mengesahkan sabitan dan

hukuman)
Oleh KN Segara HMR menyampaikan penghakiman mahkamah: E
(1) Hakim perbicaraan telah menggunapakai semua prinsip-prinsip

dan ujian-ujian betul apabila menimbangkan keterangan
pendakwaan dan pembelaan pada semua tahap perbicaraan.
Beliau juga tidak khilaf dalam mencapai dapatan fakta-faktanya F
dan tidak mengakibatkan apa-apa salah laksana keadilan atau
salah arahan serius yang mewajarkan pembebasan tertuduh.
Pembacaan teliti penghakimannya membuktikan bahawa beliau
sedar sepenuhnya bahawa standard pembuktian atas pendakwaan
pada penghujung kesnya adalah untuk membuktikan suatu kes G
prima facie dan bahawa pada penghujung perbicaraan mahkamah
akan menimbangkan semua keterangan yang dikemukakan dan
memutuskan sama ada pendakwaan telah membuktikan kesnya
melampaui keraguan yang munasabah.
H
(2) Tidak ada apa-apa keraguan bahawa SP3 dan SP7 merupakan
saksi-saksi pendakwaan penting dan pertuduhan terhadap
tertuduh amat bergantung kepada testimoni-testimoni mereka.
Jika testimoni-testimoni mereka ditolak, tertuduh mesti
dibebaskan. Walaupun begitu, hakim perbicaraan bertindak
I
dengan betul apabila menerima keterangan mereka sebagai boleh
87
A dipercayai. Berdasarkan fakta-fakta, SP3 berada di tempat

kejadian dan telah melihat tertuduh menikam adik-beradiknya.
Beliau semestinya seorang saksi berkepentingan di mana beliau
memang ingin orang yang membunuh adik-beradiknya dihukum
sewajarnya. Undang-undang hanya meminta supaya keterangan
B SP3 dikaji dengan cukup berhati-hati untuk mengelak daripada
apa-apa godaan untuk membabitkan tertuduh secara palsu. Ia
adalah jelas bahawa hakim perbicaraan telah cukup berhati-hati
apabila menerima keterangan SP3. Hakim perbicaraan telah
membuat suatu dapatan positif bahawa SP7 merupakan seorang
C rakan jenayah, dan ia adalah suatu rukun kebijaksanaan bahawa
ia tidak selamat untuk bertindak atas keterangan seorang rakan
jenayah kecuali jika ia disokong dalam aspek-aspek material
supaya membabitkan tertuduh. Dalam kes semasa, ia adalah
jelas bahawa keterangannya disokong dengan secukupnya oleh
D keterangan SP3 dan ia seharusnya dipercayai. Mereka kedua-dua
berada di tempat kejadian dan telah melihat tertuduh menikam
si mati. Dapatan-dapatan ahli patologi juga menyokong
keterangan mereka bahawa si mati telah ditikam dengan sebilah
pisau.
E
(3) Mahkamah ini berpuas hati bawah hakim perbicaraan telah
menimbangkan pembelaan tertuduh – bahawa beliau tidak
menikam si mati dan, sebaliknya, ia merupakan si mati yang
telah menikamnya – dengan amat teliti dan telah, pada
F penghujung perbicaraan, membuat dapatan bahawa ia adalah
sesuatu penafian kosong. Beliau mendapati bahawa pendakwaan
telah membuktikan kesnya melampaui keraguan munasabah.

Criminal Procedure Code, ss. 180(1), 182A(1)
G
Penal Code, s. 302
For the appellant - Rajpal Singh; M/s Rajpal, Fira & Assoc
For the respondent - Kwan Li Sa DPP
Reported by Suresh Nathan

H
JUDGMENT
KN Segara JCA:
I [1] In May 1999 Vikneswaran a/l Nagapan was a 16-year-old
teenager. He apparently had a girlfriend named Vickneswari. She is
a cousin of Chellah and Baskaran who are brothers. Baskaran is the
elder brother of Chellah.
88
[2] Viveganathan a/l Nagapan is the elder brother of Vikneswaran. A

They live together in the same house in Sg Buloh. On 3 May 1999
at about 9pm the two brothers went to the ASB Supermarket which
is about 2-3 km away from their house to buy two packets of Maggi
mee. They went to the supermarket on a m/cycle ridden by
Vikneswaran with Viveganathan as the pillion. On their way back B
home from the supermarket they crossed the path of Chellah and
Agilan who were on a m/cycle (ridden by Agilan). Chellah and
Agilan are known to Viveganathan and Vikneswaran.
[3] Chellah and Agilan stopped them and invited them to go to C

a shop to have drinks and talk together. At the suggestion of
Chellah they exchanged m/cycles for their destination. Chellah rode
the m/cycle Vikneswaran was riding and Vikneswaran became the
pillion instead. Viveganathan, on the other hand, became the pillion
rider on the m/cycle ridden by Agilan. D
[4] Chellah rode ahead as the lead rider with his pillion. Agilan
and his pillion followed behind him. Chellah did not proceed to the
shop for drinks as intimated earlier. Instead, Chellah led them to an
area behind a factory. There, awaiting their arrival at the scene were
E
Baskaran and Mimi.
[5] To Viveganathan’s horror, even before he could get down from

Agilan’s m/cycle, he saw Chellah take out a knife from a bag over
Chellah’s shoulder and stab his brother in the stomach. When
Viveganathan got off Agilan’s m/cycle he was held by Mimi and F
restrained from going to his brother’s aid. He was told not to
interfere in a problem essentially between Chellah and Vikneswaran.
[6] Vikneswaran fell on to the road and lay prone. Chellah further
stabbed him several times again. Then Agilan and Baskaran struck G
Vikneswaran with a piece of wood. Thereafter, the three assailants
and their accomplice, Mimi, fled from the scene, leaving
Viveganathan behind with his brother. Vikneswaran was in pain. His
body and clothes were smeared in blood. He was still alive and
breathing. H
[7] Viveganathan went to the house of his friend Chandra

Mogan, about 2km away, to seek help for his brother. He returned
to the scene with Chandra Morgan in a car to send his brother to
the Sg Buloh Hospital. About half an hour after their arrival at the
I
hospital, Vikneswaran succumbed to his injuries.
89
A [8] The forensic pathologist, Dr George Paul (SP9), carried out

a post-mortem on the body of Vikneswaran on 4 May 1999 at about
11am. According to the pathologist the cause of death of the
deceased was “stab injuries to heart and liver”'.
B [9] Allaggandiran a/l Vellu, the appellant (accused) herein, who is

also known as Chellah, was charged with the offence of murder for
causing the death of the deceased, Vikneswaran. He was found
guilty and convicted for the offence of murder punishable under
s. 302 of the Penal Code by the learned judge High Court, Shah
C Alam. He was sentenced to death.
[10] The appeal before us hinges only on four main points. The
learned defence counsel urges upon us to acquit and discharge the
accused because:
D a) The learned trial judge has erred at the close of the
prosecution by wrongly evaluating the evidence before him;
b) The learned trial judge was not cautious when accepting the
evidence of SP3 (interested witness) and SP7 (accomplice)
wholly without independent corroboration;
E
c) The learned trial judge decided that the discrepancies between
SP3 and SP7 is minor and can be disregarded;
d) The learned judge failed to consider that the prosecution had

failed to prove that “Mimi” is actually SP7.
F
[11] We have considered very carefully the submissions of the
learned defence counsel. We have perused through the notes of
evidence and record of appeal to ascertain whether the prosecution
had in fact established a prima facie case against the accused at the
G close of the prosecution’s case and, thereafter, at the conclusion of
the trial, had proved their case beyond reasonable doubt.
[12] We are satisfied that the trial judge has applied all the correct
principles and tests in evaluating the evidence for the prosecution
H and the defence at all stages of the trial. We are also of the view
that he has not erred in his finding of facts. We are unanimous
that the trial judge has not occasioned any serious miscarriage of
justice or misdirection to warrant the acquittal of the accused.
Nevertheless, we are of the view that it was undesirable of the judge
I to have stated, (perhaps intended only as a matter of observation
90
without having expressly so stated) “Tertuduh pada tahap ini, tidak A

ada menimbulkan sebarang keraguan yang munasabah terhadap kes
pendakwaan”, in one of the passages of his grounds of judgment.
The passage referred to reads as follows:
Setelah menimbangkan keterangan saksi-saksi pendakwaan dan hujah B
kedua-dua pihak, saya berpuashati bahawa pendakwaan telah
berjaya membuktikan kes prima facie terhadap tertuduh dan dengan
itu telah memanggil beliau membela dirinya. Tertuduh pada tahap
ini, tidak ada menimbulkan sebarang keraguan yang munasabah
terhadap kes pendakwaan.
C
[13] Such a statement, taken out of context and interpreted for its
purported implications without regard to the evidence before the
court, could lead to the perception that the trial judge was requiring
the accused to establish a doubt on the prosecution’s case even
before the defence was called. The further perception would be that D
such failure would lead to the accused’s inevitable conviction. If this
was in fact rooted in the mind of the trial judge, then he would be
guilty of a misdirection on the burden of proof at the close of the
prosecution’s case. However, upon a careful reading of the paragraph
in which the statement appears and all the preceding paragraphs of E
his judgment, as well as the paragraphs that follow, we are satisfied
that he was fully aware that the standard of proof on the
prosecution at the close of its case is to make out a prima facie
case (s. 180(1) CPC ) and that at the conclusion of the trial the
court shall consider all the evidence adduced and decide whether the F
prosecution has proved its case beyond reasonable doubt (s. 182A(1)
CPC). It is elementary that in criminal law (short of any explicit
statutory exceptions to the contrary) the accused is not required to
prove his innocence at any stage of a trial. The burden rests
squarely on the shoulders of the prosecution throughout the trial to G
prove the charge beyond reasonable doubt, more so, at the close of
the case for the defence (that is, at the conclusion of the trial).
[14] There is no doubt that Viveganathan (SP3) and Nagentharan(SP7)

are crucial prosecution witnesses on whose testimony the charge H
against the accused rests heavily. If their testimony is rejected, then
the accused must be acquitted. However, we have no reason to
interfere with the trial judge accepting their evidence as credible.
[15] SP3 is the brother of the deceased. His evidence is entitled

I
to credence until cogent reasons for disbelief can be advanced. He
was at the scene. He was an eyewitness. He saw the accused stab
91
A his brother. There is no doubt he is an interested witness in that

he would most certainly wish to have the perpetrator/s punished for
the death of his brother. All that the law demands is that SP3’s
evidence should be scrutinized with sufficient caution to safeguard
against any temptation to falsely implicate the accused. We are
B satisfied that the trial judge has exercised sufficient degree of
caution in accepting SP3’s evidence. SP3’s evidence on the issue of
the deceased being stabbed with a knife is also supported by the
pathologist, SP9’s findings. In accepting SP3’s evidence, the trial
judge stated:
C
Setelah mendengar dan melihat SP3 memberi keterangan, saya
mendapati ia seorang saksi yang boleh dipercayai. Ia tidak
memperlihatkan kepada saya sebagai seorang saksi yang berat
sebelah. Keterangannya bahawa simati telah ditikam dengan sebilah
pisau di perutnya beberapa kali adalah disokong dan konsisten
D dengan jenis-jenis kecederaan yang dijelaskan oleh SP9. SP9 juga
ada memberikan pandangannya bahawa kecederaan yang dialami
oleh simati adalah disebabkan oleh senjata tajam.
[16] There is no doubt that SP7 is an accomplice. The trial judge

E
did in fact make a positive finding that SP7 was an accomplice. SP7
did go to the scene with Agilan. He prevented SP3 from giving any
assistance to the deceased when he was being stabbed by the
accused. SP7 also assaulted the deceased with a piece of wood. He
had been arrested by the police as a suspect and then released.
F
[17] It is a rule of prudence that it is unsafe to act on the
evidence of an accomplice unless it is corroborated in material
aspects so as to implicate the accused. We are satisfied that his
evidence is sufficiently corroborated by SP3’s evidence and credence
must be given. SP3 and SP7 were at the scene and both had the
G
opportunity to witness the accused stabbing the deceased.
Furthermore, the pathologist’s findings support SP7’s evidence that
the deceased was stabbed with a knife. We have no reason to
interfere with the trial judge’s finding that SP7 was a credible
witness. He stated in his judgment as follows:
H
Walaupun SP7 seorang rakan jenayah, saya mendapati ia seorang
yang boleh dipercayai dan keterangannya adalah disokong oleh SP3,
iaitu seorang saksi bebas. Keterangan SP7 bahawa simati telah
ditikam dengan sebilah pisau juga adalah consistent dengan
I
kecederaan yang dialami oleh simati seperti yang telah diterangkan
oleh SP9 didalam keterangan lisannya dan juga di dalam laporan
bedah siasatnya.
92
Tidak dinafikan bahawa terdapat percanggahan keterangan di antara A

SP3 dan SP7, termasuk bagaimana dan dengan siapa OKT pergi ke
tempat kejadian dan jarak kedudukan masing-masing dengan tempat
simati ditikam oleh OKT. Bagaimanapun saya mendapati
percanggahan tersebut adalah percanggahan yang kecil dan tidak
material. Ini tidak langsung menjejaskan kredibiliti mereka atau
B
menimbulkan keraguan mengenai siapa yang menikam siapa
dan jenis senjata yang digunakan. (emphasis added)
[18] The defence of the accused in a nutshell was that he did not
stab the deceased and, on the contrary, it was the deceased who had
stabbed him. He denied that he had brought along with him any C
knife when he met the deceased and his brother at the football
field. He admitted that on the day of the incident he had told his
brother, Baskaran, and his cousin, Agilan, that he was going to
search for the deceased and have a talk with the deceased, as the
deceased had allegedly been disturbing his cousin Vickneswari. D
[19] We are satisfied that the trial judge had considered the
defence of the accused very carefully and at the conclusion of the
trial made a finding that the accused’s defence was a bare denial.
He found that the prosecution had proved its case beyond a E
reasonable doubt and expressed it in his judgment as follows:
Setelah menimbangkan keterangan pendakwaan dan keterangan
pembelaan, saya berpuashati bahawa pendakwaan telah
membuktikan kesnya melepasi keterangan yang menasabah dan
OKT tidak dapat menimbulkan keraguan yang menasabah terhadap F
kes pendakwaan. Keterangan OKT sendiri adalah penuh dengan
percanggahan dan keterangannya bahawa ia tidak menikam simati
adalah merupakan penafian semata-mata.
[20] We are unanimous that this appeal is without merits. We are

G
satisfied the conviction is safe. Appeal is dismissed. Conviction and
sentence of the High Court is affirmed.
I
93
Current Law Journal
356 Reprint [1992] 1 CLJ (Rep)
a YAP SING HOCK & ANOR.

v.
PUBLIC PROSECUTER
SUPREME COURT, KUALA LUMPUR
ABDUL HAMID OMAR LP
b
PEH SWEE CHIN SCJ
ANUAR ZAINAL ABIDIN J
[CRIMINAL APPLICATION NO. 06-7-90]
3 AUGUST 1992
COMPANY LAW: Lifting of corporate veil - Courts have lifted veil to do justice in civil
c cases - Whether lifting of corporate veil can apply in a criminal case - Directors of limited
company charged for criminal breach of trust under s. 409 Penal Code.
COMPANY LAW: Appellants charged as directors of limited company for criminal breach
of trust - Whether appointment of both appellants as directors valid - Non-compliance with
ss. 123(4), 124(1) Companies Act 1965 - Definition of “director” in s. 4 of Companies Act
d 1965 - Director is sole contributor of paid up capital and sole beneficial owner of all
issued shares of company - Director paid out monies from company’s funds to third party
- Whether director can be said to have committed offence of criminal breach of trust under
s. 409 Penal Code - Section 422 Criminal Procedure Code - Whether Court should apply
the provision when irregularity involves breach of a principle of general importance to
the administration of criminal justice.
e The appellants were charged for two offences, being the 1st and 2nd charge under s. 409 of
the Penal Code i.e. criminal breach of trust and the 3rd charge under s. 67(3) of the Companies
Act 1965. Both the appellants were convicted and sentenced by the Sessions Court, Johore
Bahru to 3 years imprisonment each on the 1st and 2nd charge with both sentences to run
concurrently. As for the 3rd charge, both the appellants were sentenced to a fine of RM2,500
in default 3 months imprisonment. On appeal, the High Court, Johore Baru upheld the
f convictions and sentences and dismissed the appeal. The appellants obtained leave to reserve
4 questions of law for determination by the Supreme Court under s. 66 of the Court of
Judicature Act 1964. They were as follows:
1. Whether the definition of “director” under s. 4 of the Companies Act 1965, a person
can be held or deemed to be a director of a private limited company?
g 2. Whether in the non-compliance with s. 123(1) and (4) of the Companies Act 1965, a
person can be held or deemed to be a director of a private limited company?
3. If the answer to question 2 is in the negative, can a person who is being charged as an
agent, or as a director of a private limited company and in that capacity be held to act
as an ad hoc agent by the said company?
h 4. Whether a director/member of a private limited company can be said to have committed
an offence under s. 409 of the Penal Code by paying out monies from the said company’s
funds to a third party when he is the sole contributor of the paid-up capital and ultimately,
the sole beneficial owner of all the issued shares of the said company?
i
94
Yap Sing Hock & Anor. v.
[1992] 1 CLJ (Rep) Public Prosecutor 357
Held: a
[1] The 1st question was answered in the negative in the context of criminal charges under
the Penal Code and any other law except for statutory offences and requirements created
and imposed by the Companies Act 1965 as the case may be. Such being the case, the 2nd
and 3rd questions did not arise.
[2] The 4th question was not answered as a pure question of law with a simple “negative”
b
or “affirmative” for reason that its wording is wide of the mark and is ambiguous. The question
as posed can only be answered with reference to the ingredients of an offence such as
dishonest intention and so forth.
[3] The convictions and sentences on the 1st and 2nd charges against the appellants were
ordered to be quashed. The conviction and sentence on the 3rd charge was confirmed.
c
[1st question answered in negative, 2nd and 3rd questions not considered, 4th question
declined to be answered. Conviction and sentence on 1st and 2nd charge quashed.
Conviction and sentence on 3rd charge confirmed.]
[Bahasa Malaysia Translation of Headnote]
UNDANG-UNDANG SYARIKAT: Menyelak tabir korporat - Mahkamah telah menyelak
tabir untuk membuat keadilan dalam kes-kes sivil - Samada penyelakan tabir korporat d
boleh dipakai dalam kes jenayah - Pengarah-pengarah syarikat berhad dituduh melakukan
pecah amanah jenayah di bawah s. 409 Kanun Keseksaan.
UNDANG-UNDANG SYARIKAT: Perayu - perayu dituduh melakukan pecah amanah
jenayah di bawah s. 409 Kanun Keseksaan - Perayu-perayu dipertuduh sebagai pengarah-
pengarah syarikat berhad - Samada perlantikan kedua-dua perayu sebagai Pengarah e
adalah sah - Ketidakpatuhan s. 123(4) dan s. 124(1) Akta Syarikat 1965 - Pentakrifan
“Director (Pengarah)” dalam s. 4 Akta Syarikat 1965 - Pengarah ialah penyumbang
tunggal modal berbayar dan pemilik benefisial tunggal syer-syer terbitan syarikat -
Pengarah mengeluarkan wang dari dana syarikat bagi membayar pihak ketiga - Samada
pengarah boleh dikatakan sebagai telah melakukan pecah amanah jenayah di bawah s.
409 Kanun Keseksaan - Seksyen 422 Kanun Prosedur Jenayah - Samada Mahkamah harus f
memakai peruntukan tersebut apabila luar aturan melibatkan perlanggaran suatu prinsip
yang secara umumnya penting kepada pentadbiran keadilan jenayah.
Perayu-perayu telah dituduh atas dua kesalahan, tuduhan pertama dan kedua di bawah
s. 409 Kanun Keseksaan iaitu pecah amanah jenayah dan tuduhan ketiga di bawah s. 67(3)
Akta Syarikat 1965. Kedua-dua perayu telah disabitkan kesalahan dan dijatuhkan hukuman
oleh Mahkamah Sesyen, Johor Bahru masing-masing kepada 3 tahun pemenjaraan atas g
tuduhan pertama dan kedua di mana kedua-dua hukuman berjalan secara bersama. Berhubung
dengan tuduhan ketiga kedua-dua perayu telah dijatuhkan hukuman denda sebanyak RM2,500
dan jika ingkar dipenjarakan selama 3 bulan. Apabila rayuan dibuat, Mahkamah Tinggi Johor
Bahru telah mengekalkan kesabitan kesalahan dan hukuman tersebut dan menolak rayuan
berkenaan. Perayu-perayu telah mendapatkan kebenaran untuk merizabkan 4 persoalan undang
-undang untuk diputuskan oleh Mahkamah Agung di bawah s. 66 Akta Mahkamah Keadilan h
1964. Ianya adalah seperti berikut:
1. Samada pentafrifan “Director (Pengarah)” di bawah s. 4 Akta Syarikat 1965, seseorang
itu boleh dikatakan atau disifatkan sebagai pengarah sesebuah syarikat sendirian berhad?
2. Samada dengan ketidakpatuhan s. 123(1) dan (4) Akta Syarikat 1965, seseorang itu boleh
dikatakan atau disifatkan sebagai pengarah sesebuah syarikat sendirian berhad? i
95
Current Law Journal
a 3. Sekiranya jawapan kepada soalan 2 ialah negatif, bolehkah seseorang yang dituduh selaku
seorang ejen atau selaku pengarah sesebuah syarikat sendirian berhad dan atas
kapasitinya itu dikatakan mewakili sebagai seorang ejen ad-hoc oleh syarikat tersebut?
4. Samada seorang pengarah/ahli sesebuah syarikat sendirian berhad boleh dikatakan
sebagai telah melakukan suatu kesalahan di bawah s. 409 Kanun Keseksaan dengan
menggunakan wang dari dana syarikat untuk dibayar kepada pihak ketiga di mana beliau
b
merupakan penyumbang tunggal modal berbayar dan yang pada dasarnya, pemilik
benefisial tunggal akan kesemua syer-syer terbitan syarikat tersebut?
Diputuskan:
[1] Persoalan pertama telah dijawab dalam bentuk negatif dalam konteks pertuduhan jenayah
di bawah Kanun Keseksaan dan sebarang undang-undang lain kecuali bagi kesalahan-
c kesalahan statutori dan kehendak-kehendak yang diwujudkan dan dikenakan oleh Akta
Syarikat 1965 sebagaimana yang berkenaan. Oleh yang demikian, persoalan-persoalan kedua
dan ketiga tidak timbul.
[2] Mahkamah Agung enggan menjawab persoalan keempat sebagai suatu persoalan undang
- undang yang tulin dengan memberikan jawapan yang mudah dalam bentuk “negatif” atau
“afirmatif” atas alasan bahawa susunan kata-katanya adalah jauh dari maksudnya dan samar
d
-samar. Persoalan yang dikemukakan itu hanya boleh dijawab dengan merujuk kepada
kandungan sesuatu kesalahan seperti niat tidak jujur dan sebagainya.
[3] Kesabitan kesalahan dan hukuman ke atas tuduhan pertama dan kedua terhadap perayu
-perayu telah diperintahkan supaya dibatalkan kesabitan kesalahan dan hukuman ke atas
tuduhan ketiga disahkan.
e [Persoalan pertama dijawab dalam bentuk negatif. Persoalan kedua & ketiga tidak
dipertimbangkan. Persoalan keempat enggan dijawab. Kesabitan kesalahan dan hukuman
ke atas tuduhan pertama dan kedua dibatalkan. Kesabitan kesalahan dan hukuman ke
atas tuduhan ketiga disahkan.]
Cases referred to:
f Dean v. Hiesler [1942] 2 All ER 340 (refd)
Tan Choo Wah v. PP [1976] 2 MLJ 95 (refd)
PP v. Yeok Teck Chye [1981] 2 MLJ 176 (refd)
Kwang Ping Bong & Anor. v. The Queen [1979] AC 609 (foll)
Salomon v. Salomon & Co. Ltd. [1897] AC 22 (foll)
Daimler Co. Ltd. v. Continental Tyre and Rubber Ltd. [1916] 2 AC 307 (refd)
Jones v. Lipman [1962] 1 All ER 442 (refd)
g Ebrahimi v. Westbourne Galleries Ltd. [1973] AC 360 (refd)
Attorney - General’s Reference No. 2 of 1982 [1984] QB 624 (foll)
Belmont Finance Corp. Ltd. v. Williams Furniture Ltd. [1979] Ch 250 (foll)
R v. Ralph Roffel [1984] Ast Crim Rp 135 (not foll)
Tesco Supermarkets Ltd. v. Mattras [1972] AC 153 (not foll)
DPP v. Kent and Sussex Contractors Ltd. [1944] KB 146 (refd)
h Legislation referred to:

Companies Act 1965 ss. 4, 67, 67(3), 113, 123(1), (4), 125, 130
Court of Judicature Act 1964 s. 66
Criminal Procedure Code s. 422
Defence (General) Regulations, reg. 91 [UK]
Penal Code ss. 23, 24, 405, 409
i
96
Other sources referred to: a

Text Book of Criminal Law, Professor Glenville Williams, 2nd Edn.
Shorter Oxford Dictionary, 3rd Edn.
For the 1st appellant/applicant - G. Sri Ram (Arther Lee Meng Kuang with him); M/s. Sri Ram & Co.
For the 2nd appellant/applicant - Kadir Kassim
For the respondent - Ng Aik Guan, DPP
b
JUDGMENT
Peh Swee Chin SCJ:
Four questions of law were earlier allowed to be reserved for determination by this Court
under s. 66 of the Court of Judicature Act 1964. They are as follows:
1. Whether the definition of “director” under s. 4 of the Companies Act 1965, a person can c
be held or deemed to be a director of a private limited company?
2. Whether, in the non-compliance with s. 123(1) and (4) of the Companies Act 1965 a
person can be held or deemed to be a director of a private limited company?
3. If the answer to question 2 is in the negative, can a person who is being charged as an
agent, or as a director of a private limited company and in that capacity be held to act
as an ad-hoc agent by the said company?
d
4. Whether a director/member of a private limited company can be said to have committed

an offence under s. 409 of the Penal Code by paying out monies from the said company’s
funds to a third party when he is the sole contributor of the paid-up capital and ultimately,
the sole beneficial owner of all the issued shares of the said company?
It would be necessary to set out some material facts whenever it is necessary to do so in e
this judgment.
Three of the charges against the appellants on which they were convicted and which were
connected with the four questions were as follows:
1st charge:
That you jointly on 30 April 1985, at the Hongkong and Shanghai Banking Corporation, f
No. 1, Jalan Bukit Timbalan, in the district of Johor Bahru, in the State of Johor, being agents
of Lien Hoe Sawmill Company Sdn. Bhd., to wit, directors and in such capacities entrusted
with the dominion over certain property, to wit, RM12,000,000 committed criminal breach of
trust in respect of the said property and that you have thereby committed an offence
punishable under s. 409 of the Penal Code.
2nd charge:
g
That you jointly on 10 May 1985, in the district of Johor Bahru, in the State of Johor,
being agents of Yap Sing Hock Holdings Sdn. Bhd., to wit, directors and in such capacities
entrusted with the dominion over certain property, to wit, RM2,500,751 committed criminal
breach of trust in respect of the said property and that you have thereby committed an offence
punishable under s. 409 of the Penal Code.
h
3rd charge:
That you jointly on 30 April 1985, at the Hongkong and Shanghai Banking Corporation,
No. 1, Jalan Bukit Timbalan, in the district of Johor Bahru, in the State of Johor, being officers
of Lien Hoe Sawmill Company Sdn. Bhd., to wit, directors did give financial assistance to
Yap Sing Hock Holdings Sdn. Bhd. for the purpose of a purchase of 4,413,284 shares in the
former company, and you have thereby committed an offence punishable under s. 67(3) of i
the Companies Act 1965.
97
Current Law Journal
a The appellants were sentenced by the Sessions Court and their sentences were upheld by
the High Court when their appeals were dismissed. The sentences are 3 years’ imprisonment
each on the 1st and 2nd charges with both sentences to run concurrently; a fine only of
RM2,500 in default, three months’ imprisonment on the 3rd charge.
Both appellants were already directors of Yap Sing Hock Holdings Sdn. Bhd., the company
named in the 2nd charge before the events took place on the dates mentioned in the three
b
charges. Further and significantly, the 1st appellant was the beneficial owner of all the shares
or issued capital of this company (hereinafter called the Holdings Company) and his co-
directors had held all their shares in the Holdings Company in trust for the 1st appellant by
deeds of trust, viz. Exh. D42A and 42B in Sessions Court. This fact of the Holdings Company
being a one-man company owned 100% by the 1st appellant has never been disputed also.
c Another company named in the 1st and 3rd charges, that is Lien Hoe Sawmill Co. Sdn. Bhd.
(hereinafter called the Lien Hoe), prior to the dates in the said charges, as regards its issued
capital was owned by two groups of shareholders who could be called majority shareholders
and minority shareholders resectively.
Differences having arisen between these two groups they all found it expedient to sell all
their shares to the Holdings Company and for that purpose a series of agreements were
d
entered into for a total price of RM46 million. It would not be necessary to go into details
of these agreements as these agreements were never in doubt nor their propriety disputed.
It was not disputed that the sale by both groups of shareholders was to be transacted
simultaneously and control of Lien Hoe was to pass to the Holdings Company only on full
payment of the purchase price. Both groups of shareholders of Lien Hoe were represented
by their respective solicitors all of whom would appear to be perfectly aware of the events
e
either personally or as creditably informed by each other.
After several extensions of time to pay in full the purchase price and therefore to complete
the sale, a final deadline was set for 30 April 1985 for the purpose. In April 1985 before
30 April 1985, a loan was obtained from banks including, Perwira Habib Bank and RM32
million was paid on 29 April 1985 to the two groups of shareholders who were the vendors
f leaving a balance of RM6 million to be paid by 30 April 1985.
On the crucial day that is 30 April 1985, the vendors, the appellants and the solicitors for
the majority shareholders (viz. PW2) were present at the office of the manager of Hongkong
Bank. Although the solicitors for minority shareholders of Lien Hoe was not present it was
not disputed that he was kept informed by PW2, the solicitors for the majority shareholders.
The 1st appellant and PW2 had earlier met the secretary of Lien Hoe and the latter had
g come also to the meeting at Hongkong Bank with a set of documents comprising resolutions
of Lien Hoe relating to the sale. At the meeting, the vendors came also with Lien Hoe’s
cheque book and three fixed deposit receipts totalling RM12 million issued by the Hongkong
Bank being money of Lien Hoe of the same amount placed with the bank. At the meeting
the solicitor for another bank viz. Perwira Habib Bank, which had also lent the money to
Holdings Company which was earlier paid to the vendors of shares of Lien Hoe, was also
h present.
At the meeting, it was agreed by all parties that the Hongkong Bank would lend RM12 million
to Lien Hoe on application by the appellants as new directors of Lien Hoe to be secured by
the three fixed deposits. The appellants were at the same time or contemporaneously
appointed as new directors of Lien Hoe with three previous directors of Lien Hoe resigning
i as directors. As new directors, Lien Hoe lent the RM12 million to the Holdings Company. A
new account in the name of Holdings Company was opened in the Hongkong Bank into
98
which the said RM12 million was paid. Out of the RM12 million, the appellants as directors a
of the Holdings Company settled the balance of RM6 million due to the vendors of the shares
in Lien Hoe.
Lien Hoe became thus the wholly-owned subsidiary of the Holdings Company, the whole of
the issued capital of the latter was as stated previously owned by the 1st appellant.
There was nothing surreptitious about the meeting, all parties present, including the solicitor b
of the Perwira Habib Bank did not appear to be aware at all whether anything they were
doing was wrong, or that the transactions were anything in the nature of wheeling and
dealing.
Subsequently, viz. the Perwira Habib Bank Bhd. placed Lien Hoe under receivership and
appointed Price Waterhouse, chartered accountants as receivers and managers, and one Encik
c
Ishak bin Hashim, the general manager of Perwira Habib Bank Bhd., was subsequent to such
placement of Lien Hoe under such receivership and in order to recover money lent to Lien
Hoe, appointed on 16 July 1986 as a director of Lien Hoe to look after such interests of the
Perwira Habib Bank. Upon examining the books of Lien Hoe, he lodged a report to the police
on 20 October 1986, being report No. 19317/86, at Johor Bahru, alleging that the board of
directors of Lien Hoe had disregarded the interests of creditors with his belief that offences
d
might have been committed. This report undoubtedly and ultimately led to the charges
including the charges concerned herewith being laid against the appellants. This would seem
to run counter presumably to the view of the solicitor for Perwira Habib Bank who did not
voice any objection at the crucial meeting on 30 April 1985.
Among the circular resolutions was one dealing with the appointment of the appellants as
new directors viz. Exh. P28 on which both parties set great store and which is set out below: e
Appointment of New Directors
Resolved that the following three gentlemen be and are hereby appointed directors of the
Company subject to their completion of the statutory documents as required under s. 123(1)
and (4) of the Companies Act 1965:
(a) Dato Yap Sing Hock (I/C. 0684644) f
1-A, Jalan Stulang Darat, Johore Bahru, Johore.
(b) Yap Seng Chang (I/C. 4112475)
72-A, Jalan Mahkota, Taman Iskandar, Johore Bahru, Johore.
(C) Abdul Hamid bin Mohd. Tahir (I/C. 3735688)
21, Jalan K-4, Taman Tampoi Baru, Johore Bahru, Johore.
g
The learned Sessions Court Judge found that the appellants had become new directors in
pursuance thereof but it was the contention of the defence that the said resolution did not
create a valid appointment of both appellants as directors, inter alia, because of s. 123(4)
and s. 124(1) of the Companies Act 1965 which is set out below:
Section 123 -
h
(1) xxx xxx xxx xxx xxx
(4) Every person shall before he is appointed a director of a company make and lodge with
the Registrar and the Official Receiver a statutory declaration in the form prescribed by i
regulations that he will not be acting in contravention of s. 125 and 130.
99
Current Law Journal
a Section 125 -
(1) Every person who being an undischarged bankrupt acts as director of, or directly or
indirectly takes part in or is concerned in the management of, any corporation except
with the leave of the Court shall be guilty of an offence against this Act.
Penalty: Imprisonment for three years or ten thousand ringgit or both.
b It was not and could not be disputed that no such statutory declarations were made and
lodged by both the appellants on 30 April 1985 in accordance with the provisions of the
sections quoted above. Therefore it was submitted that the prosecution had failed to prove
that they were directors of Lien Hoe as stated in the 1st and 3rd charges on 30 April 1985.
This submission was renewed before us by learned Counsel for the appellants.
It was submitted by learned Deputy before us that both appellants were in law directors of
c
Lien Hoe because of s. 4 of the Companies Act 1965 which defined director as including
non director who was in the position of a director by whatever name called it. Section 4 is
set out below:
Section 4(1) of this Act, unless the contrary intention appears:
xxx xxx xxx xxx xxx xxx xxx xxx
d
“director” includes any person occupying the position of director of a corporation by whatever
name called and includes a person in accordance with whose directions or instructions the
directors of a corporation are accustomed to act and an alternate or substitute director.
The learned Deputy, with considerable force renewed the submission that by instructing the
cheque (Exh. P15) to be prepared for transfer of the said RM12 million in question from Lien
e Hoe to the Holdings Company, the appellants had put on the mantle as directors of Lien
Hoe and come within the definition of directors. There was sufficient evidence to prove this.
On the same evidence it was submitted both the appellants were agents nonetheless of Lien
Hoe as stated in the charges.
It was submitted for the defence that the stand of the prosecution and the issue as well was
f that the appellants were directors of Lien Hoe on 30 April 1985 as stated in the 1st charge.
The case of Dean v. Hiesler [1942] 2 All ER 340 was cited again before us. The High Court
below referred to the evidence and s. 4 of the Companies Act and found little assistance
from Dean v. Hiesler holding that they were directors for the purpose of the 1st and 3rd
charges.
As we have stated elsewhere the principle of the duty of the prosecution to prove beyond
g a reasonable doubt every ingredient of a charge, is a principle too plain to require any
authority to support it; also a principle of great and fundamental importance at the same
time.
Having regard to the wording in the 1st charge question is whether both directors were
charged as directors of Lien Hoe? The 1st charge stated that both appellants:
h ... being agents of Lien Hoe Sawmill Company Sdn. Bhd., to wit, directors and in such
capacities entrusted with the dominion etc.
According to Shorter Oxford Dictionary, 3rd Edn., the words “to wit” mean “namely or that
is to say ...”. The meaning therefore would be that they were charged as directors and in
that capacity were entrusted with the money in question as agents of Lien Hoe, the words
“to wit” preceding the word “director” would appear to us to be emphasizing the office of
i
the directors held by the appellants through the instrumentality of which they were entrusted
as agents of the money in question.
100
This was the basis on which the case was proceeded with in the lower Courts, to which a
both parties have directed their energies to. No application for amendment of the charge by
deleting the words “to wit directors” has been made at any time, or any suggestion therefore
made.
The definition or directors in s. 4 of the Companies Act 1965, in our view, cannot be applied
to the charges preferred under the Penal Code and any other law for that matter (except)
b
under the Companies Act 1965 itself) which has to be strictly construed in favour of liberty.
Whether both appellants were directors or not became a question of fact which the
prosecution had to prove beyond a reasonable doubt. The same view was espoused by the
Court of King’s Bench comprising 3 Judges in Dean v. Hiesler in which the accused was
charged as being a director of a company in connection with certain offences under reg. 91
of the Defence (General) Regulations. It was held that reg. 91 in question, being a penal
c
enactment, must be construed strictly in favour of the defence and the accused who had
not been duly appointed as director of the company in question, could be such a director.
Similar argument was advanced there about the definition of director in the Companies Act
1929 of Britain being extended to a person in the position of a director though not an actual
director was rejected. We are in entire agreement with the reasoning behind the rejection of
such similar argument. Only for compliance with all the requirements of the Companies Act
d
1965 and the prosecution of the offences created by the said Act, the definition of director
in the Act applies.
Reverting back to the first question reserved to this Court for determination, on a criminal
charge under the Penal Code, it should be answered in the negative. Such being the case,
the answers to the second and third questions referred to us would not arise.
e
Nonetheless we think it desirable to state our view on the 3rd question briefly. Any person,
whether a director or not, can be charged as an agent of a company in respect of an offence
committed against the company, if such agency can be determined from the evidence adduced,
please see Tan Choo Wah v. PP [1976] 2 MLJ 95 and PP v. Yeok Teck Chye [1981] 2 MLJ
176. It follows, that a director, normally regarded ipso facto as an agent of the company
ought not to be charged as agent of the company in respect of an offence committed against
f
the company when he was not involved in the commission of the offence at all, this is of
course not with specific reference to the charges against the appellants in this case.
Speaking generally, we wish to make one observation once again. The charges as framed
under s. 409 in this case have not adhered strictly to the wording of s. 409 which is set out
below:
Section 409: Whoever, being in any manner entrusted with property, or with any dominion g
over property, in his capacity of a public servant or in the way of his business as a banker,
merchant, factor, broker, attorney, or agent, commits criminal breach of trust in respect of
that property, shall be punished with imprisonment for a term which may extend to twenty
years, and shall also be liable to fine.
The modifying words: “in his capacity” refer to a public servant and the words “in the way
h
of his business”refer to “banker, agent etc ...”. Decided cases on the phrases do not
necessarily apply to both situations provided by the two different phrases for one thing;
and it could even lead to even serious arguments in Court.
It has occurred to us that in regard to the seemingly technical nature of the wording of the
1st charge in question, whether we should amend it at this stage by deleting the words “to
wit, directors” from the 1st charge so as to preserve the conviction already upheld by the i
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Current Law Journal
a High Court, as was done in Yeok Teck Chye supra, but whereas in that case facts justifying
such a cause of action would not cause any injustice as found and stated in that case but
the circumstances in this case would not be of such a variety.
In the instant case, it was hotly contested, the case was conducted with the veritable spirit
of the adversarial system on the issue whether the appellants were directors on 30 April
1985 and the issue was one all parties, have concentrated their energies on and above all,
b
the prosecution has never deemed it fit at any stage to even suggest an amendment in any
way, and has throughout the case put forward a legal view of facts on the question such
that any Court if so disposed towards an amendment on its own motion could not do so
without being unfair or appearing to be unfair to one of two sides. After all a Court in a
criminal case would have, generally speaking, to hold the scales between the interests of the
prosecution on the one hand and those of the accused on the other. We do not propose to
c
amend the 1st charge.
It has also occurred to us whether we should apply s. 422 of our Criminal Procedure Code
which provides that no order or finding should be reversed or altered on account of, e.g.
any irregularity, etc. in the charge, etc. unless such error has occasioned a failure of justice.
The error or what looks like an error in the instant case seems to be technical. Whether any
d Court should apply s. 422 aforesaid will depend, among other things, on whether the
irregularity involves the breach of a principle of general importance to the administration of
criminal justice. If it does, the Court would not apply s. 422, as this appears to us to be the
same thing as the irregularity has occasioned a failure of justice. It is a fundamental principle
in our law that the prosecution has to prove beyond a reasonable doubt every ingredient of
the offence or charge. This principle is involved in the irregularity of the 1st charge here. In
e saying all this, we have also adopted with great respect, the similar reasoning of Lord Diplock
in the Privy Council in Kwang Ping Bong & Anor v. The Queen [1979] AC 609, 615. We
would not apply s. 422 of the Criminal Procedure Code.
To sum up at this stage of our judgment, for reasons given, conviction under 1st charge
cannot stand.
f We now deal with the 4th question as set out at the beginning of the judgment and the 4th
question has close connection with the 3rd charge. The answer to this question will depend
partly on an answer to another question as to whether the principle of distinction and
separateness of a corporation as a legal entity from its members and shareholders as
established by the leading case of Salomon v. Salomon & Co. Ltd. [1897] AC 22 applies
inviolably to criminal cases under the Penal Code. If the answer to this question of applicability
g of the said principle is affirmative, then our answer to the 4th question posed may be similarly
affirmative.
Let us now discuss below this matter from several aspects in order to search for this rather
vexed and elusive answer.
The said principle (hereinafter called the primary principle) stated above is sometimes referred
h to as the veil of incorporation and it gives rise to another principle of lifting of the veil of
incorporation for certain reasons. Such veil has been lifted by statutes e.g. the Companies
Act 1965 itself or by the Courts for certain specified purposes. The lifting of the veil clearly
constitutes a violation of the primary principle but this has come to be treated correctly as
an exception to the primary principle with such exception being subject to the parameters
and perimeters indicated by the statutes or by the specified purposes so far indicated by
i the Courts when lifting the veil.
102
It would not be necessary to set out many examples of lifting of the corporate veil by statutes a
except by just mentioning one, viz. the Companies Act 1965 requires group accounts for
both holding and subsidiary companies, thus throwing light on the relationship between a
holding company and its subsidiaries.
When the Court lifts the veil, from the decided cases, it does so to do justice limited to a
few purposes some of which are set out below. First, it is for purpose of tax cases in order
b
to ascertain tax liability or for detecting tax evasion. The law reports are full of these cases.
Secondly it is for the purpose of detecting any trading with enemy. Please see Daimler Co.
Ltd. v. Continental Tyre and Rubber Ltd. [1916] 2 AC 307. Thirdly it is for some illegal or
improper purpose directed against a third party, e.g. where vendor of land in Jones v. Lipman
[1962] 1 All ER 442 in breach of contract of sale of land tried to avoid an action for specific
performance of contract regarding the land by transferring the land to a company which he
c
had formed. There are a great number of cases involving some other illegal or improper
purposes. Fourthly where facts are such the Court lifts the veil on account of equitable
considerations, please see e.g. Ibrahimi v. Westbourne Galleries Ltd. [1973] AC 360.
The category for such purposes for which the Court will lift the veil is never closed. A
Court has always the discretion to have a crack at it to do justice.
d
It will be argued that to do justice will involve doing justice to an accused person whose
liberty is imperilled and whose innocence is presumed until proven guilty. However the legal
position is far more intricate than this simple argument suggests.
All the cases for which the Courts have lifted the veil to do justice seem to be civil cases
or due to illegal and improper purposes directed against the third parties or outsiders to the
companies in question who have or would have suffered damage but for the lifting of such e
veil. In each of those cases, it would seem that the company in question has been used as
an engine of fraud or wrongful deprivation, etc. In our instant case, both appellants cannot
be in the shoes of such persons and they were charged in a criminal case for offences against
the property of the company in question. The lifting of the veil in such criminal cases will
not be supported by the decided cases but it will be patently irrational if one considers the
real reason for lifting the corporate veil. f
Yet another reason is that if the primary principle were not to apply to criminal cases under
the Penal Code it would mean that the primary principle would be replaced by a good deal
of awesome uncertainties of great magnitude; awesome because of the tremendous number
of limited liability companies nowadays playing such a predominant role in the commercial
life of any country.
g
It is sufficient if we discuss two cases, one of which upheld the said primary principle while
the other obviously, though not expressly, rejected the application of the said primary principle
in criminal cases.
The first of such case would have to be Attorney - General’s Reference No. 2 of 1982 [1984]
QB 624, where the question posed to the Queen’s Bench comprising Watkins and Kerr LJJ,
is remarkably similar to the question before us presently. The question there was: h
Whether a man in total control of a limited liability company (by reason of his shareholding
and directorship) is capable of stealing the property of the company; and whether two men
in total control of a limited liability company (by reason of their shareholdings and
directorships) are, (while acting in concert) capable of jointly stealing the property of the
company.
i
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a The accused persons were charged with theft of money from a company totally owned and
controlled by them. The learned Judge held that they had no case to answer at the end of
prosecution case and directed the jury to acquit them. The Attorney-General referred the
quoted question to the Queen’s Bench.
It is to be borne in mind that theft, under the Theft Act 1968 of Britain is inter alia,
dishonestly appropriating of property of another. “Dishonest” or “dishonestly” would appear
b
to bear the common dictionary meaning of intention to cheat or deceive and whereas our
Penal Code defines “dishonestly” differently and about which we will deal later.
In the Attorney-General’s Reference supra, Kerr LJ delivering the judgment disagreed that
there was no case to answer at the end of the prosecution case and after reviewing a number
of cases, his Lordship relied on a civil case viz. Belmont Finance Corp. Ltd. v. Williams
c Furniture Ltd. [1979] Ch 250. In Belmont, directors (who were shareholders also) used the
company’s fund to buy shares of another company at an excessive price. The receiver
appointed sued them for damage for breach of trust and misfeasance. The High Court
dismissed the claim but the Court of Appeal reversed the High Court’s decision for reason
that since the directors knew it was an illegal transaction, their knowledge could not be
imparted to their company which was a victim of such conspiracy and could not be regarded
d as a party to the conspiracy. Kerr LJ inter alia, held that the position should be the same
in criminal law and held further that view was in accord with the view of Professor Glenville
William’s ‘Text Book of Criminal Law, 2nd Edn.
The other case that went against the decision in Attorney-General’s reference, supra, is R v.
Ralph Roffel [1984] Ast Crim Rp 135, a decision by a majority of 2 to 1 in the Court of
Criminal Appeal of Victoria, Australia. In that case, the accused was convicted of stealing a
e
cheque, being property to the company of which he and his wife were the sole shareholders
and directors. On appeal, against conviction, the appeal was allowed by such majority. It
was held to be sufficient that the whole transaction was consensual, and consent was foreign
to the notion of usurpation which was the element of theft. The majority further disapproved
the Attorney-General’s Reference, supra, and approved the concept of a man being the
directing mind and will of a company and therefore the embodiment of the company, not
f
just his agent or servant, as propounded by Lord Reid also in Tesco Supermarkets Ltd. v.
Mattras [1972] AC 153, 170 - a case in which a company was prosecuted, and not a case in
which someone was charged for committing an offence against a company. The reliance by
the Court there on Tesco Supermarkets would not appear to us to be suitable.
The passage of Lord Reid in Tesco Supermarket relied on by a majority is set out below:
g I must start by considering the nature of the personality which by a fiction the law attributes
to a corporation. A living person has a mind which can have knowledge or intention or be
negligent and he has hands to carry out his intentions. A corporation has none of these; it
must act through living persons, though not always one or the same person. Then the person
who acts is not speaking or acting for the company. He is acting as the company and his
mind which directs his acts is the mind of the company. There is no question of the company
h being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is
an embodiment of the company or, one could say, he hears and speaks through the person of
the company, within his appropriate sphere, and his mind is the mind of the company. If it
is a guilty mind then that guilt is the guilt of the company. It must be a question of law
whether, once the facts have been ascertained, a person in doing particular things is to be
regarded as the company or merely as the company’s servant or agent. In that case any liability
of the company can only be a statutory or vicarious liability.
i
104
We would comment on Tesco Supermarkets. At common law, one of the difficulties of a

prosecuting a company which has to act by necessity through human agency is the absence
of a rule similar to the rule of vicarious liability in civil law, for to find a company guilty,
mens rea is a necessary element. Modern statutes have made a company stand in the shoes
of a master or principal liable for offences committed by servants or agents and have in
some cases dispensed totally with the requirement of mens rea against a company or any
offender. However, starting prominently with the case of DPP v. Kent and Sussex Contractors b
Ltd. [1944] KB 146 and other ensuing cases, it has been held, directly or indirectly that a
company CAN be held liable for offences ‘personally’ without the need to prove any agency
or relationships of master and servant, even in the absence of any statutory provision for
express vicarious liability against a company, where the officer or director of the company
can be regarded from evidence as the directing mind or the controlling will of the company
so as to become its embodiment. c
Tesco Supermarkets brought out this concept clearly. The Supermarkets company had
hundreds of shop managers and was charged, not vicariously, for an offence committed by
one of its shop managers in failing to ensure the goods advertised for sale at a particular
price was in fact sold at the price. Lord Reid after making the passage cited, went on to hold
the board of directors had never delegated their functions to any of these shop managers
d
and therefore the acts of the shop manager in question was not that of the supermarket
company which, in consequence, was not guilty of the offence under Trade Description Act
1968 of Britain.
Having regard to the case mentioned, we are of the view that the Attorney-General’s
Reference, supra, was rightly decided and we disagree with the majority judgment in Ralph
Roffel. We also approve the dictum of Buckley LJ in Belmont which was adopted by Kerr LJ e
in Attorney-General’s Reference. The consent or knowledge of a sole shareholder and director
of even a one man company can NOT be treated as the knowledge and consent of the
company itself when the company is a victim of fraud or of any illegal deprivation of its
assets. The concept of a person e.g. a director of a company being the company’s directing
mind cannot apply when the company is such a victim for offences against the company,
but only when the company is prosecuted for an offence where the prosecution cannot rely f
on any statute or statutorily vicarious criminal liability. We are prepared to say without
hesitation the said primary principle applies inviolably in cases in which a company is a
victim of fraud or wrongful deprivation and in criminal offences against the property of the
company. A simple illustration will make it clear. Supposing a managing director of a public
company draws a tremendously large sum of special remuneration for himself so as to clearly
amount to cheating the company, and if he is charged, it will be unthinkable for him to set g
up a defence that he is the company’s directing will and controlling mind. We think the said
primary principle applies to criminal offences, but this does not enable us to give an answer
to the 4th question.
Although the said primary principle of the company being a legal entity applies to criminal
cases, we are unable to answer the 4th question with a simple “negative” or “affirmative”
h
for reason that its wording is wide off the mark and is ambiguous. We cannot therefore
answer this question as a pure question of law.
To answer the question in the negative would mean that under no circumstances a director/
member of a private limited company can be said to have committed an offence under s. 409
of the Penal Code if he pays out money from the said company’s funds to a third party
i
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Current Law Journal
a where he is the sole contributor of the paid-up capital and the sole beneficial owner of all
the issued shares of the said company, we would say that an offence under the said section
may be committed depending on the facts of the surrounding circumstances of each particular
case.
On the other hand, to answer the question in the affirmative would necessarily mean that
such a director or member in terms envisaged by the question would per se commit an offence
b
under the section whether or not there was any dishonest intention.
We would say that the question as posed can only be answered with reference to the
ingredients of an offence such as dishonest intention and so forth. In consideration we decline
to answer the 4th question as framed.
We think it would be necessary to deal with the meaning of the words: “criminal breach of
c
trust” as contained in the 2nd charge which is now dealt with. Section 405 of the Penal
Code defines criminal breach of trust as “whoever, being in any manner entrusted with
property, or with any dominion over property, dishonestly misappropriates or converts to
his own use that property, or dishonestly uses or disposes of that property in violation of
any direction of law prescribing the mode in which such trust is to be discharged, or of any
legal contract, express or implied, which he has made touching the discharge of such trust,
d
or wilfully suffers any other person so to do, commits criminal breach of trust”.
The mens rea element is contained in the word “dishonestly” and s. 24 defines it as “whoever
does anything with the intention of causing wrongful gain to one person, or wrongful loss
to another person, is said to do the thing dishonestly”. Section 23 defines wrongful loss
and wrongful gain thus: “Wrongful loss, is the loss by unlawful means of property to which
e a person losing it is legally entitled. A person is said to gain wrongfully when such person
retains wrongfully, as well as such person acquires wrongfully. A person is said to lose
wrongfully when such person is wrongfully kept out of any property, as well as when such
person is wrongfully deprived of property”.
One will be immediately struck with the realization that the word “dishonestly” is not
understood in the common parlance of the dictionary meaning of intention to cheat or deceive.
f It is thus not synonymous with “fraudulently” used in relation to other sections in the Penal
Code, which defines the latter by s. 25 as: “a person said to do a thing fraudulently if he
does that thing with intent to defraud but not otherwise”. The word “dishonestly” is therefore
understood differently in England. Bearing in mind the omnipresence of mens rea (in the
absence of its exclusion, express or implied) it is legitimate and in fact it is essential to
understand the connection between the word “intention” used in connection with “intention”
g to cause wrongful loss or wrongful gain” AND mens rea.
The word “intention” or “intentionally” or any other similar expression (such as ‘with intent’)
does refer to mens rea which however has a wider scope in meaning and generally means
the mental element of the offence. Since moral wickedness or turpitude is indicated in many
cases, it ought to be borne in mind that such moral turpitude must have been part and parcel
h of the definition of the offence in question such as indicated by the use of prescribed words
such as “fraudulently” or with intent to deceive”. The word, intention, has acquired a modern
meaning which is interwoven with the history of mens rea with which it is desirable to deal
very briefly.
i
106
It is believed in ancient times, the strict liability of crimes prevailed before the advent of a
mens rea. It is believed further that because of the influences of religious law it came to be
gradually accepted by the Courts that a man should not be punished unless he knew what
he did was wrong, actus non reus nisi men sit rea. The moral standard was found at times
to be unstable for what was regarded as offensive was not so regarded in another part of
the same century, and moral standards do change with times, (the extreme example would be
the legalization of homesexuality offence between consenting males in Britain, in this century). b
Intention, at present, has acquired a special meaning as follows.
Intention means that a man intends to commit the offence or do the forbidden act as
prescribed by law that is described by law, IF at or before time of the commission of the
offence or the doing of the forbidden act, an accused person has foresight, (that is knows
in advance) that his conduct will lead to the commission of the offence or the doing of the c
forbidden act as described or prescribed by law, irrespective of whether he knows it is such
an offence or such a forbidden act, so described or as prescribed by law AND he desires
the commission of such an offence or doing of such a forbidden act.
We may just as well add, by way of illustration, that where foresight above - described is
present, but the desire above-described is absent, then it becomes the mens rea for
d
“recklessness”, such as offence of causing death by a reckless act. This is not the place or
time to discuss further, except that moral wickedness has now practically disappeared from
mens rea unless the law of offence prescribes or describes it.
It is with the present legal meaning of intention that we would have to deal with the evidence
against the appellants whenever it is necessary to do so.
We now consider the 2nd charge as set out above which was not attended by such e
controversy as regards the proof of the actual directorship. It was not even disputed by the
appellants or on their behalf that they were at the relevant time directors of the Holdings
Company, the property of which was the subject of criminal breach of trust, and not the
property of Lien Hoe.
On the 2nd charge, the evidence against the appellants was that 1st appellant had instructed f
the accountant of the Holdings Company to write a cheque for RM2,500,751 (the subject
matter of the 2nd charge) in order to buy a banker’s draft to be made payable to a
sharebroking company called “Ariffin & Low Securities Sdn. Bhd.” to buy shares in a public
listed company called Muda Holdings Bhd. The cheque was signed by both appellants. The
accountant was a certified accountant with the academic qualification of ‘ACCA’. The payment
voucher was prepared for the said cheque for Holdings Company with the words “advance g
to payee” and payee was the 1st appellant who signed the acknowledgement of receipt and
the payment voucher was approved by 2nd appellant. The said accountant wrote on the
reverse of the said payment voucher the words “Ariffin & Low Securities Sdn.” to indicate
the application for the banker’s draft. The accounts produced showed the said advance and
other advances to the 1st appellant from the Holdings Company. All the documents, evidence,
cheque, payment voucher and accounts were all prepared long before the police investigation h
started. All these evidence was apparently accepted by the learned Sessions Court Judge,
and the High Court did not accept it as a loan because his Lordship said to the effect that
to give a loan there must be money (available) in order to give such a loan, and the sum of
RM2,500,751 was wrongly gained or acquired by the Holdings Company out of the RM12
million transferred from Lien Hoe.
i
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Current Law Journal
a The 1st appellant in his defence admitted the loan but said to the effect that the loan was
to enable him to gain control ultimately of the public listed company viz. Muda Holdings
Bhd. when Lien Hoe would be sold at a handsome profit for this purpose.
We have the misfortune of differing from the very able Judge and we have to express our
disagreement. Since the 2nd charge referred to the commission of breach of trust against the
property of the Holdings Company and not Lien Hoe, it would not be appropriate to rely on
b
the allegedly illegal origin or source of the money of the Holdings Company so as to stamp
the money which was drawn out and lent to the 1st appellant as non-available legally for
lending.
It must be observed that the loan or advance in the circumstances of this case as described
above was not prohibited by the Companies Act 1965, for example, it was not a loan by
c Holdings Company to 1st appellant to buy shares in the Holding Company itself (e.g. s. 67
of the Act); neither was it a loan to directors as prohibited by s. 113 of the Act, the Holdings
Company being an exempt private company, nor was it prohibited by memorandum and
articles of association of the Holdings Company.
Since wrongful loss or wrongful gain, inter alia, is necessarily loss or gain by unlawful means,
there is no evidence of unlawfulness about loan which could render the appellants to
d
prosecution, bearing in mind what has been said just now. Of course the 1st appellant could
be liable to an action by the Holdings Company to recover the loan, this, however, in our
opinion, is definitely not enough and self-evidently so too, for a borrower can not be simply,
said to cause loss to his lender by unlawful means because such borrower can be sued in
Court. Both the appellants should not have been called for their defence. We therefore think
his conviction under the 2nd charge cannot stand also.
e
Dealing with the 3rd charge, both appellants were charged under the Companies Act 1965
and not under the Penal Code so that the strict proof of directorship required for an offence
under the Penal Code has been modified by the Companies Acts s. 4 wherein the definition
of director includes a non director who occupies the position of a director by whatever name
called, in order apparently to avoid any evasion of compliance with the provisions of the
f Act. Such being the case the conviction under the 3rd charge should remain undisturbed.
This could be regarded as a curious result by some quarters as both appellants were also
charged as directors of Lien Hoe in the 3rd charge as in the 1st charge, but such result has
to be so reached when a Court has to give force to any fundamental and important principle
of law in the administration of criminal justice explained earlier, where expediency of any
kind would have to give way.
g We feel we ought to express our view that had the appellants been rightly convicted on 1st
and 2nd charges, it would be quite legitimate to accept, but only by way of a plea in
mitigation of sentence, that the 1st appellant was the sole beneficial owner of all the shares
of Holdings Company and of Lien Hoe by relation, so that no other shareholders in Lien
Hoe or Holdings Company could be wronged and a further plea for a non-custodial sentence
(other than a day’s imprisonment to satisfy the mandatory requirement of imprisonment) and
h a fine could be exceptionally and favourably considered.
To summarize, we order that the convictions and sentences on the 1st and 2nd charges be
quashed, and that conviction and sentence on the 3rd charge be confirmed.
i
108
Also, we answer the 1st question in the negative in the context of criminal charges under a
the Penal Code and any other law except for statutory offences and requirements created
and imposed by the Companies Act 1965 as the case may be. Such being the case, the 2nd
and 3rd questions do not arise. We further decline to answer the 4th question for reasons
given earlier.
Also found at [1992] 4 CLJ 1950 b
i
[1974] CLJU 176
109
[1974] 1 LNS1 176[1974] 1 MLJ 110
TENGKU MAHMOOD v. PUBLIC PROSECUTOR

HIGH COURT, KOTA BAHRU
RAJA AZLAN SHAH
CRIMINAL APPEAL NO. 17 OF 1972
9 JANUARY 1974
CRIMINAL LAW AND PROCEDURE - Appeal - Demeanour of witness to be tested against totality of his
evidence - Evidence of Accomplice - Charge of Corruption - No corroboration - Whether trial court justified in
convicting accused - Prevention of Corruption Act, 1961.

Lim Kwee Geok v. PP [1953] MLJ 50
Rex v. Ambler [1938] 2 WWR 225
Tara Singh v. PP [1949] 88 MLJ 88, 89
Thong Hong Kee v. PP [1952] MLJ 110
Trowell v. PP [1946] MLJ 41
Counsel:
For the appellant - Edgar Joseph Jr; Joseph & Son
For the respondent - Hashim Majid (DPP)
JUDGMENT
Raja Azlan Shah FJ:
The appellant was convicted of agreeing to accept from the complainant a gratification of $800, an offence
under s. 4(a) of the Prevention of Corruption Act, 1961. He was sentenced to imprisonment for one day
and a fine of $2,000 in default nine months. He has appealed against conviction.
The evidence shows the salient facts of the prosecution case to be as follows: The appellant was a
member of the Kelantan State Public Services Commission, who in March 1971 had interviewed the
complainant for a job as tracer in the Survey Department. He was not successful. In June 1971 he made a
second application. In early September 1971 he enlisted the help of an intermediary, PW6, to introduce
him to the appellant. On 18 September 1971, together with PW6 he visited the appellant at his house with
an offering of rice pulot and eggs. There it is said the alleged agreement to pay the appellant a sum of
$800 as inducement to help him get the job was reached. The money was to be handed to PW6 in 15
days' time (3 October 1971) and the venue was the appellant's house. The complainant made a report (not
produced because inadmissible) with the local branch of the Anti-Corruption Agency not immediately after
the said occurrence but 13 days later (30 September 1971). A police trap was then set on 15 October
1971. $800 notes treated with anthracite were handed to the complainant with instructions to hand them to
PW6 who in turn would, according to the said agreement hand them to the appellant. However, the trap
proved abortive. It was alleged that the complainant handed the money to PW6 but there was no evidence
to that effect. At that material time the appellant was not in his house. He returned a little later. He was
searched by the police but nothing incriminating was found on him. The members of his household were
also searched but with the same result. His house was meticulously searched from morning till dusk but
the money was not found. In the course of the trial the credit of PW6 was impeached by the prosecution.
The central question to be considered in this appeal is whether on the record, as it stands, the learned
president was right in accepting the complainant as a witness of truth.
As regards authority, there is, I think, very little to be said. It is hardly necessary to go further back than
Tara Singh v. PP [1949] MLJ 88, 89 in 1948. In that case it was held that impression as to demeanour of a
witness must be critically tested against the totality of his evidence. Now, the learned president, it is true,
had a great advantage over this Court. He saw and heard the witness and I did not. But the demeanour is
not always the touch-stone of truth. It is only one ingredient in arriving at a finding of credibility. But so also
110
is motive. Although in cases of this kind it is not easy to get satisfactory evidence, one must not also lose
sight of the fact that at the same time it is indeed easy to 'fix' a man in the position of the appellant. A man
who was not successful before the Public Services Commission may have hurt his pride and hurt pride is a
ferocious beast. It is for this reason that a Judge of fact should always test the complainant's evidence
against the totality of his evidence and the probabilities of the case. Failure to do so does amount, in my
view, to a misdirection, and if it can be demonstrated that the trial Judge had failed to do that, his
conclusion as to credibility, cannot, in justice, be regarded as impeachable, much less unimpeachable. It
would therefore be not just for an appellate Court to regard itself as compelled to regard as conclusive his
finding on the issue of credibility. The whole matter can be considered afresh. Further, the graver the issue
involved, and particularly when an allegation of corruption is in the air, the greater is the necessity for the
appellate Court to enquire whether the conclusion as to credibility is one that must under the law be
regarded as, for all practical purposes, irrefragable.
There are a number of grounds of appeal but the cumulative effect of those can compendiously be put in
one sentence; that the propriety of the case does not justify a conviction on the uncorroborated evidence of
the complainant.
While it is true that in a proper case a trial Judge may fittingly convict on the uncorroborated evidence of an
accomplice, this would be a very exceptional one. The Canadian Court of Appeal in Rex v. Ambler [1938] 2
WWR 225 cited by Horne J in Trowell v. PP [1946] MLJ 41 is to this effect. In Trowell's case the accused
was convicted in the Magistrate's Court of receiving illegal gratification in the course of his duty as
Inspector of Machinery in the Mines
Department. The only evidence that the accused received the sum of money was that of the person who
alleged he paid it. He was an accomplice. Against that there was the denial on oath of the accused. Horne
J in his judgment quoted a passage from Ambler's case and that passage was reproduced by the learned
president on p. 13 of his judgment but the last sentence in that passage was not reflected in the record and
it is as follows:
There may be a case in which a trial Judge may fittingly convict upon the uncorroborated evidence of
an accomplice, but this would be the very exceptional case.
In Thong Hong Kee v. PP [1952] MLJ 110 the appellant there was also convicted on the uncorroborated
evidence of the complainant. The learned Magistrate was extremely impressed by the demeanour of the
complainant and looked upon him as a truthful witness. He had also stated emphatically that before
coming to his decision he had warned himself against convicting on the uncorroborated evidence of an
accomplice. He further stated that he could not accept the evidence of the accused. It was held that while
an appellate Court would always hesitate to over-rule the decision of a trial Judge based upon the
demeanour of witnesses whom he had had the opportunity of seeing in the witness box, nevertheless
would interfere with the decision if it appeared he did not give sufficient consideration to the evidence or
take into consideration the great number of discrepancies and contradictions in his evidence or test it with
the evidence of the only other witness against which it could be tested.
In Lim Kwee Geok v. PP [1953] MLJ 50 a case of dishonestly receiving stolen property, to wit, 30 cases of
milk, which were found in the possession of a proprietor of a shop, the only evidence against the accused
was that of the proprietor who had bought the milk at a price far below the market price. He also produced
his books of account but the entries showed that they were extremely suspicious. Now there the learned
Magistrate had failed to observe that that witness, the proprietor of the shop, was not only an accomplice
but an accomplice of the very type which our Courts had always looked upon as witnesses upon whose
evidence it is most unsafe to convict without corroboration.
So in the present case I proceed to test the matter by reference to the totality of the complainant's
evidence and the probabilities of the case. The evidence shows that the complainant was a boy of 21
years of age who had passed his LCE. He had high hopes of getting the job but unfortunately he was not
successful. He said the members of the Board were not fair to him as he felt he had answered the
questions satisfactorily. That is apparent from the record: (see p. 53/54).
I felt the members of the Board were a stumbling block to my getting the job in the Government
service. The most active member of the Board was the accused. When I left the interview I had the
feeling the accused had the biggest
say in the Board. I would like to see the accused punished for the wrong he had done to me. The
wrong he had done in preventing me from getting the job. One way of punishing him was to have him
reported for corruption. I also knew after I reported I would have a stumbling block out of my way.
Q. So that if and when you applied for a job again the accused would not be present as he had been
reported (DPP objects to question).
Court overrules objection.
A Yes, so that my prospects of getting a job would be brighter.
Such is the veracity of the man whom the learned president said his credibility is beyond question. Now in
June 1971 he again applied for the same post. He enlisted the help of PW6 to get to know the appellant.
Exactly on what basis the complainant came to know or was brought to know PW6 was not fully developed
111
in the evidence but at any rate it is stated that PW6 and the appellant had some relationship and there the
evidence ended. So on 18 September 1971 PW6 took the complainant to see the appellant at the latter's
house and there it is said the clandestine agreement was reached.
I have been urged to say that in the light of the totality of the complainant's evidence and the probabilities
of the case the evidence regarding the alleged agreement was wholly unsatisfactory. It is said that there
are violent discrepancies and contradictions on the matter. For present purposes it is sufficient to say that
having read the body of evidence which runs to 60 pages and having anxiously read and re-read every
word of the 32 page judgment, I find it impossible to hold that the assessment of the complainant's
credibility was arrived at in such a manner that this Court ought now to regard itself as precluded from
considering it afresh. The learned president had properly directed his mind to the law on accomplice
evidence, but to my mind he had paid little attention to the fact. There is in my view no microscopic scrutiny
of the totality of the complainant's evidence. If that was done with an indulgent eye, one cannot avoid the
conclusion that his evidence leaves very much to be desired. Here is a man, an accomplice, whose whole
interest in giving evidence against the appellant must have been to make his case as black as possible in
order to achieve his objective. He is an accomplice of the very type which our Courts have always looked
upon as a witness upon whose evidence it is most unsafe to convict without corroboration. In my judgment,
since the learned president had failed to do what he was required to do, that is, to take a critical
appreciation in his examination of the complainant's evidence, he had not taken proper advantage of his
having seen and heard him, so that his mistaken view had coloured his approach to the issue of credibility
so gravely that there was such a misdirection that made the judgment wholly unsatisfactory.
A point which at one time had caused me some anxiety is the argument of the learned DPP that although
the learned president had convicted on the uncorroborated evidence of the accomplice based on
impressive demeanour, later events, that is, the police report and the abortive trap showed that there is a
logical consistency with the complainant's evidence in Court. He relied on a passage in the judgment:
There is a logical sequence, and an inherent consistency and truth about this narrative of PW1 which
taken with all the surrounding circumstances makes it an exceptional case where the rule regarding
corroboration of the evidence of an accomplice can be very safely departed from.
If I understand the passage correctly, it is said that the later events are conducts which had a direct
bearing and connection with the alleged agreement and such conduct is consistent with the complainant's
testimony in Court that he is telling the truth regarding the said agreement. If that is what the learned
president meant, then I say he is clearly in error. In my opinion only the police report can be claimed to be
of any evidential value so far as it relates to consistency of conduct and assertions of the complainant in
Court. That principle is well known in cases of rape and some other sexual offences. The said complaint
can only be used as evidence of the consistency of his conduct with the story told by him in Court. In other
words, it can only be used as evidence of credibility of his testimony to the alleged agreement but there are
limits to its admission. It must be made voluntarily and at the earliest convenient moment. It must not be
made after a long lapse of 13 days as to allow fabrication.
The abortive trap is not admissible as evidence of the alleged agreement which must be proved
independently. It is whether that piece of evidence taken with all other proved circumstances are strong
enough to bring home the offence to the appellant beyond reasonable doubt. If those circumstances or
some of them can be explained by any other hypothesis, then the appellant must have the benefit of that
hypothesis.
The abortive trap is a telling factor in favour of the appellant. The 15 dayperiod of payment was not kept. If
the alleged agreement were true then in my view the appellant or the intermediary would have confronted
the complainant with payment. Further, where there are only two persons who could testify as to the
alleged agreement and one of them turned hostile, that would seem to be a good reason to doubt the
propriety of departing from the rule that it is wholly not safe to convict on the uncorroborated evidence of
an accomplice based on demeanour alone.
In such circumstances what right have we to say that the defence story is unreasonable? If it stands
together, if it is not consistent with the proved facts, a rejection of it would be simply and solely on the
ground that it was told by an accused person under trial.
I have considered the case in its proper perspective. I allow the appeal and set aside the conviction and
sentence. I have further directed my mind regarding a new trial and I say that this is not a fitting case so to
do.
Appeal allowed.
[1974] 1 LNS1 176[1974] 1 MLJ 110
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112
[1955] CLJU 166
113
[1955] 1 LNS1 166[1955] 1 MLJ 24
TUKIRAN BIN TAIB v. PUBLIC PROSECUTOR

HIGH COURT, KUALA LUMPUR
BELLAMY; J
CRIMINAL REVISION NO 40 OF 1954
14 JANUARY 1955
CRIMINAL PROCEDURE:- Young offender - Plea of guilty - Practice - Duty of Magistrate.

Abu Bakar Bin Alif V. R [1952] 1 LNS 4
Chin Ban Keat v. Rex [1949] 1 LNS 14
Ong Ah Thoo v. Rex [1949] MLJ 36
Palan v. PP [1932] MLJ 124
PP v. Chean Tin [1939] MLJ 266
PP v. Nahat Singh [1939] MLJ 239
JUDGMENT
Bellamy J:
In this case Tukiran bin Taib was charged in the Magistrate's Court at Tanjong Karang with the theft of 167
coconuts under s. 379 of the Penal Code. He pleaded guilty and was sentenced to four months'
imprisonment. As the accused is 17 or 18 years old, I called for the record of the proceedings to satisfy
myself as to the propriety of the prison sentence imposed by the Magistrate.
The facts, which I am assured by the Deputy Public Prosecutor were admitted in Court by the accused,
briefly were these. On 1 December 1954 about 3 p.m. a watchman patrolling Banjor Estate, a coconut
plantation at Kampong Batu Lima, caught the accused red-handed on the estate unhusking coconuts
which he had recently plucked by means of a bamboo pole from two lines of twelve coconut trees on the
estate. When asked for an explanation, the accused glibly stated that he was merely working for a Chinese
who had purchased the coconuts in question from the clerk in charge of the estate. So saying, he put the
coconuts he had already unhusked into a sack and sauntered off into a neighbouring plantation. The
watchman then made enquiries concerning what the accused had told him and it was then discovered his
story was false and that in fact the accused had plucked, and removed the coconuts without the consent of
the owner of the estate or the clerk in charge thereof. The theft was reported to the police who arrested the
accused on the following day. In mitigation, the accused told Magistrate that he had "no 'wang' (money) for
expenses."
As regards sentence, in my view this was as bad and as bold a case of stealing produce as any that has
been brought to the notice of this Court in recent times. Thefts of coconuts from plantations in this
particular district, and elsewhere, in this state are reported to be widespread, to be on the increase, and to
be causing grave concern to estate owners and to the authorities. Everybody knows how difficult it is to
catch the thieves, and there can be not the smallest room for doubt that this evil must be stamped out and,
if it is necessary, by heavy prison sentences. In the circumstances of this case, I do not consider a
sentence of four months' imprisonment to be in the lease bit excessive and, if the accused was over 21
years old, I would not interfere with this sentence.
However, as I stated earlier, the accused is at most 18 years old - he is said to look very much younger -
and he is furthermore a first offender. It has been stressed by this Court that it is very desirable that young
offenders, that is, offenders between the ages of 17 and 21 years, who are also first offenders, should be
kept out of prison, if possible. The Magistrate does not appear to have taken this into consideration at all. I
consider that it would be more beneficial to the accused, and in the long run to the community at large, to
send him to an advanced approved school rather than to prison, and I therefore quash the sentence of four
months' imprisonment and order that the accused be committed for three years to the Henry Gurney
School at Telok Mas.
114
The case presents an occasion to make the following remarks. Firstly, as far back as 1932 it was laid down
by the Court of Appeal that it is the duty of a trial Judge before passing sentence to record some evidence
in a criminal case where the accused pleads guilty (See
Palan v. PP [1932] MLJ 124). Since that case the attention of Magistrates has frequently been directed by
Judges of the Supreme Court to the importance of observing this practice (See PP v. Nahat Singh [1939]
MLJ 239; PP v. Chean Tin [1939] MLJ 266). In Chin Ban Keat V. Rex [1949] 1 LNS 14. Jobling J went to
the trouble of giving directions as to whether evidence should be led as to the facts alleged or if they
should be merely stated by the prosecuting officer. He said, at p. 298:
This is a matter of practice which must be left to the presiding Magistrate. The aim of the Court is to
record the facts alleged by the Prosecutor and admitted by the accused and to satisfy itself that they
constitute the offence charged.
In most cases this can be satisfactorily achieved by a statement by the Prosecuting Officer followed by
an admission by the accused but in cases of doubt or difficulty it may be advisable to have evidence
led as to the facts. The course adopted in each case must be left to the Court's discretion.
Every Magistrate should know by this time what his duty is in this connection. In the present case, no
record was made by the Magistrate of the facts, with the result that this Court was obliged to obtain the
assistance of the Deputy Public Prosecutor to ascertain what the facts relied upon by the Prosecution
were, whether those facts had been stated to the trial Magistrate by the Prosecuting officer, and whether
the accused had admitted such facts. These inquiries involved much labour and a considerable loss of
time which would have been avoided if the Magistrate had recorded the facts, and also whether the
accused admitted them, as he was required to do. I have set out the relevant authorities in the hope that
Magistrates will read and note them so that this will not occur again.
Secondly, before passing sentence Magistrates should first make careful inquiries "regarding the
background, antecedents and character" of the convicted person, (See Abu Bakar bin Alif v. R [1952] 1
LNS 4), and this is particularly of importance when the convicted person is a young offender and it is
contemplated imposing a sentence of imprisonment. A probation officer's report should always be called
for, and a Magistrate should not hesitate to adjourn the case in order to obtain such a report before
passing sentence. Inexperienced Magistrates sometimes are in doubt as to the proper manner of bringing
in such a report. The probation officer should be called as a witness and give the substance of this report
in evidence. (See Ong Ah Thoo v. Rex [1949] MLJ 36.
Order accordingly.
[1955] 1 LNS1 166[1955] 1 MLJ 24
Sitemap

115
Current Law Journal
836 Supplementary Series [2008] 7 CLJ
PP A
v.
MOHAMMAD ARFAH JASMI
HIGH COURT SABAH & SARAWAK, KUCHING B

HAMID SULTAN ABU BACKER JC
[CRIMINAL APPEAL NO: 42-17-2006-II]
17 AUGUST 2007
CRIMINAL PROCEDURE: Sentence - Appeal, against - Appeal by C

prosecution - Appeal by prosecution purely on grounds of inadequacy of
sentence when there is no demonstrable error in law by trial judge -
Whether wrong in principle for prosecution to appeal
CRIMINAL PROCEDURE: Sentence - Statutory rape - Exercise of

D
discretion for sentence for statutory rape cannot be same as that for rape
- Complainant and accused were lovers and complainant agreed to have
sex with accused - Statutory rape an offence of passion committed with
consent of parties - Discretion entirely with court what sentence to be
imposed - Whether minimum sentence of five years imprisonment without
E
whipping is correct
The accused was charged with statutory rape of a 13 year old

girl. The accused was a first offender and pleaded guilty to the
charge. Both complainant and the accused were lovers and she
had agreed to have sex with him. The act was not premeditated F
and there was no force used. The accused took full responsibility
for what he had done and wanted to marry her but her parents
refused because she was still schooling. The learned sessions judge
sentenced the accused to five years imprisonment. Since no
violence was used in the commission of the offence, whipping was G
not imposed. The prosecution appealed against inadequacy of
sentence.
Held (dismissing the appeal):

H
(1) It is wrong in principle for the prosecution to file appeals and
clog the criminal administration of justice purely on the
grounds of inadequacy of sentence; that too in cases of first
offenders when the prosecution cannot demonstrate that the
trial court has erred in law in failing to take into I
considerations the guiding principles for sentencing. The
learned sessions judge had given her grounds for judgment and
it was difficult to disturb the same. (para 9)
116
[2008] 7 CLJ PP v. Mohammad Arfah Jasmi 837
A (2) Unlike rape, the exercise of discretion for the sentence for
statutory rape cannot be the same; for rape is a violent
offence and statutory rape is an offence of passion and that
too by consent of parties. Parliament has left the discretion
entirely to the court what sentence to be imposed save that
B there must be a minimum sentence of five years which must
be imposed and whipping is only optional. (para 9)
Attorney Generals’ References (Nos 120, 91 and 119 of 2002) [2003] 2 All
ER 955 (refd)
C
Jumari Mohamed v. PP [1982] 1 MLJ 282 (refd)
Leken Gerik v. PP [2007] 8 CLJ 158 HC (refd)
PP v. Hisla Sulai (m) (CRA-41-14-2007-II) (Unreported) (refd)
PP v. Loo Choon Fatt [1976] 2 MLJ 256 (refd)
PP v. Muhari Mohd Jani & Anor [1999] 8 CLJ 430 HC (refd)
D PP v. Yap Huat Heng [1986] 1 CLJ 81; [1986] CLJ (Rep) 645 HC (refd)
Rex v. Kenneth John Ball 35 Cr App R 164 (refd)
Taib Gemok v. PP [1984] 1 MLJ 313 (refd)

Penal Code, ss. 375(d), (e), 376
E
For the appellant - Fazillah Begum Abdul Ghani SFC
For the respondent - In person
Reported by Amutha Suppayah

F
JUDGMENT
Hamid Sultan Abu Backer JC:
[1] This is my judgment in respect of the prosecution’s appeal
G
against inadequacy of sentence passed by learned sessions judge.
The accused was not represented here and the court below.
[2] The accused was charged as follows:
1. That you, on the 13th October, 2003, at about 3.00 a.m. at
H house No.196A, Kampung Tabuan Hilir, Kuching in the
State of Sarawak, committed rape on one Nor Izza Shakirah
Bte Jaraini (F), 13 years old and you thereby committed
statutory rape which is an offence punishable under Section
376 of the Penal Code.
I 2. That you, on the 13th October, 2003, between 5.00 p.m.
and 6.00 p.m., at house Lot No.1608, Lorong Juara 1C,
Taman Sukma, Petrajaya, Kuching, in the State of Sarawak,
committed rape on one Nor Izza Shakirah bte Jaraini (F),
117
Current Law Journal
13 years old and you thereby committed statutory rape A

which is an offence punishable under Section 376 of the
Penal Code.
[3] Section 376 of the Penal Code reads as follows:

Whoever commits rape shall be punished with imprisonment for a B
term of not less than five years and not more than twenty years,
and shall also be liable to whipping.
[4] The facts of the case disclosed that while the victim was
playing at her neighbour’s house, the accused came and took the C
victim out to Petrajaya Complex. Later at about 11.30pm, the
victim was afraid to go home for fear of being scolded by her
father. At about 12.30am the next morning, the respondent
brought the victim to the house of one Raduan bin Mos where
they were allowed to sleep in the sitting room. At about 3am in D
the morning the offence was alleged to have been committed. The
respondent was then 20 years old. The respondent pleaded guilty
and his mitigation in the notes of proceedings reads as follows:
The accused is a first offender. He has a good sense to plead
guilty to the charge. Thus saving court’s time and expenses. The E
accused is divorced with a child looked after by his mother. He
is working to support his aged mother and his child. By pleading
guilty the family will lose their sole breadwinner. Both
complainant and the accused were lovers. That’s why she agreed
to have sex with him. The act was not premeditated. There was F
no force used. In fact the accused wanted to take full
responsibility for what he has done. He wanted to marry her but
her parents refused because she was still schooling. Public interest
is served by the accused’s plea of guilty. The accused did not
commit any offence from then until now. He is sincere to turn
over a new leaf and become a law abiding citizen. I urge court to G
impose a minimum sentence of the law.
There was a similar case where the accused was sentenced to 5

years imprisonment and the appeal was dismissed. The accused
request for cash bail to be returned.
H
[5] The learned sessions judge’s grounds in relation to
sentencing reads as follows:
The accused has the good sense to plead guilty to a charge of
rape. The offence was committed on the 13th October, 2003 at
I
about 3:00 a.m. in house no. 196A, Kpg. Tabuan Hilir, Kuching.
It is not disputed that the accused and the victim were in a
relationship. They had gone dating until 7:30 p.m. that night. The
118
A victim was afraid to go home for fear of being scolded by her

father and they finally ended up in a friend’s house at midnight
where they were allowed to sleep in the sitting room. Then at 3
a.m. in the morning, the offence was committed.
The Deputy Public Prosecutor has submitted a list of cases to

B influence me into meting out a heavy sentence against the accused.
Public interest must be my prime consideration he said. Rampancy
of the offence is another reason why I should also be harsh.
However, I begged to differ. I see before me a very young man

who cowered with remorse. He knew he had done wrong and
C
was willing to pay for his mistake. At the other end is his young
girlfriend, the victim. She too has made a mistake and undeniably
both will pay a high price for that mistake.
I do not think the harshness of my sentence will deter other

D young lovers from making the same mistake. The safeguard into
ensuring that similar offences will not happen again starts at home
and in school. At home where parents should impose discipline
and religious knowledge to ensure that their daughters would not
put themselves in situation which will bring about this kind of
offence and in school where sex education can be taught so that
E both girls and boys are aware of the dire consequences of
engaging in premarital sex.
I see absolutely no good coming out of sending a young man

such as the accused to a long period of incarceration for a mistake
that both he and the victim have mutually committed. I still think
F
that the avowed aims of sentencing such rehabilitation of the
offender must also be weighed against the gravity of the offence.
If by sentencing the accused is further dissuaded from committing
a criminal wrong in future, then I should consider that public
interest has also been served in this case.
G
Our law does not fix a sentence for a particular crime but fixes a
maximum sentence and leaving it to the court’s discretion to
decide what is appropriate for each given case. In the facts of this
case, of particular relevance is the Court of Appeal case of Mohd.
Salleh bin MK Mohd Yusof v. Pendakwa Raya [2005] 3 AMR 107
H where the victims were 15 years and 14 years respectively. There
was consent to the sexual intercourse committed by a man who
deceived the girls into believing that he was a movie producer and
a bomoh. He managed to get them to agree to have sex with
him. The Sessions Court sentenced him to 5 ½ years
I imprisonment for each offence. The High Court enhanced the
sentence to 10 years and 3 strokes of the rotan. The Court of
Appeal however took into consideration the consent and restored
the sentence of the Sessions Court.
119
Current Law Journal
I am of the view that there is all the more reason to adopt the A
approach of the Court of Appeal in this case because the accused
and the victim were lovers and not only the victim but the
accused was also young (20 years) at the time of the commission
of the offence.
Thus for all the forgoing considerations, I sentenced the accused B

to 5 years imprisonment. Since no violence was used in the
commission of the offence whipping is not imposed. Case bail is
refunded. Accused discharge not amounting to acquittal in respect
of the 2nd Charge.
C
[6] The appellant, in this appeal to increase sentence, heavily
relies on my judgment in Leken @ Delem Ak Gerik (m) v. Public
Prosecutor [2007] 3 AMR 230; [2007] 8 CLJ 158 and [2007] 3
MLJ 730 where it was stated:
Whipping has a practical and tactical significance in that even D
ferocious mammals have been trained by a cane, notwithstanding
the fact that it can also be achieved by love and affection. By
analogy, in my view unacceptable human conduct in criminal
offenders in case of moral offences can sufficiently be arrested by
the sentence of whipping. And that appears to be the intention of E
parliament for rampantly introducing whipping for serious offences.
In case of violent offenders, it is necessary to provide in addition
to whipping, long term imprisonment to reflect the gravity and
seriousness of the offence and to keep the offenders out of
criminal mischief. They must not be released early as they may
be an immediate threat to the society. However, in the case of F
unchaste act between consenting parties, and for the first time
offenders, the punishment of whipping without the need for long
term imprisonment will be a sufficient deterrent and effective form
of rehabilitation and to some extent will be seen as retributory
punishment to heal the unseen wounds of the victim, their family, G
as well as the public sentiments for harsh punishment for
perpetrators of the sin.
AND says that although the above case involves incest with a
step-daughter where whipping was increased on appeal, in this
case the learned sessions judge had only imposed the minimum H
sentence of five years which in any event is mandatory and has
not in addition ordered whipping. On this issue, the appellant says
that the decision of the learned sessions judge is not in line with
the sentencing trend for the offence of statutory rape in Kuching
Court and relies on 2 cases as precedents which was set out by I
the prosecution and is reproduced:
120
A (a) In Hishamuddin bin Piee (SC-62-404-04-II) (CR Appeal 42-6-

06-III) the accused was 42 years old whilst the victim,
Stephanie Lydia ak Kusi was 15 years 10 months at the
material time. (i) The facts of the case is as follows: On 8
December 2004 at about 10am, Kusi Sim ak Abi, the victim’s
B father lodged a report at Balai Gita Kuching that on 4
December 2004 at about 5pm, that his daughter by the name
of Stephanie Lydia ak Kusi, 15 years old had gone to look for
her boyfriend. Later, on 7 December 2004 at about 8pm he
brought her back from her boyfriend’s house and suspected
C that she had sexual intercourse with her boyfriend. As a result
of the report lodged, an investigation was carried out and
revealed that on 4 December 2004 at about 5pm, the parents
of the victim prevented her from going out from the house and
locked her in her bedroom. However at about 7pm on the
D same day she was found missing from her bedroom. The
parents went out to look for her but could not find her.
However on 7 December 2004 at about 7pm the complainant
was informed that her daughter was staying in the house of
the accused at 11D Taman Malihah Matang, Kuching. The
E parents immediately proceeded there and brought their
daughter home. The victim revealed that she went to stay
with her boyfriend, the accused and that she had sexual
intercourse with her boyfriend a few times with her own free
will, no force or any threat by her boyfriend ie, on 4
F December 2004 night time and October 2004 at the accused’s
house whilst on 4 December at about 8.30pm in Hotel Arif,
Jalan Haji Taha, Kuching. The victim was brought for medical
examination at the Sarawak General Hospital Kuching on 8
December 2004. The medical doctor, Dr. Rafae bin Amin who
G examined the victim confirmed the following: “The hymen tear
at 5 o’clock position which is consistent with her history of
blunt penetration”. Police investigation led to the arrest of the
accused at his house. The accused admitted that the victim
was his girl friend and he loved her and had sexual intercourse
H with her a few times without force, in his house and in the
hotel. (ii) The accused was charged with 3 charges under
s. 376 of the Penal Code. (iii) In mitigation, the accused
stated: first offender; plea leniency; deeply in love with the
victim but family disapproved and planned to get married with
I the victim in future. (iv) The learned sessions judge sentenced
the accused to five years imprisonment and one stroke of
rotan for the 1st charge, 2nd charge and 3rd charge
121
Current Law Journal
respectively. The reasons given are: lovers; complainant shy; 2- A

4 months of consent age; first offender; save court’s time and
nuisance of a public trial. (v) The appeal in High Court is
dismissed for reasons that the victim and respondent still care
for each other; respondent did not take advantage of the
victim and prosecution should submit cited cases for deterrent B
sentence in the lower court.
(b) In Ismail bin Majid (SC-62-31-05-1/11)(CR Appeal 42-1-06-

I), the accused was 25 years of age whilst the victim, Aida
Khizamah bte Hassan was 14 years shy of 9 days to 15th C
birthday. (i) The facts of the case is as follows. On 7 April
2004 at 2015 hours a police report was lodged by Aida
Khuziamah binti Hassan, 14 years old, No. 6 Taman Gita Siol
Kandis Kuching, that on 4 April 2004 at about 1330 hours
she met the accused at Central Padang, Kuching who D
introduced himself to her as Mail. The accused later brought
her to his house at No. 200, Lorong 2 Semariang Lot Petra
Jaya, Kuching. In the accused’s room upstairs at the
accused’s house, she was raped by the accused. The accused
forced her to have sexual intercourse. Complainant could not E
dare to resist or fight back against the accused’s approach as
there was nobody else at home except both of them. The
accused continued to rape her, all in all about 5 times, from
the time she was brought to the accused’s house at about
1330 hours until around midnight when the mother of the F
accused came home. The complainant was afraid to go home
to her parents, as she was scared to be scolded by her father.
The complainant stayed with the accused until 7 April 2004
when the father of the complainant came to fetch her home
at about 2040 hours. The last time the accused had sex with G
her was on 7 April 2004 at about 5.30pm at the accused’s
house. As a result of the report lodged, the complainant was
sent for medical check up at the General Hospital Kuching on
7 April 2004 and was examined by Dr. Ganendra Raj. The
medical report confirmed that the complainant to be suffering H
from the following: “She has been sexually abused without her
consent. There is evidence of vaginal penetration by blunt
object as there are fresh tears of hymen at 5 o’clock and 9
o’clock and posteria fourchettte. Her injuries were caused by
injury, penetration by blunt object. Police investigation led to I
the arrest of the accused on 7 April 2004 who admitted in
his cautioned statement having sexual intercourse with the
complainant at his house at No. 200, Lorong 2A, Kampung
122
A Semariang Lot Petra Jaya, Kuching with her consent. The

DNA test conducted on the seminal stains found on a pair of
jeans and underwear of the complainant confirmed as
belonging to the accused. The complainant was born on 13
May 1989 and at the time of rape she was over 14 years old.
B (ii) The accused was charged with 2 charges under s. 376 of
the Penal Code. (iii) In mitigation, the accused stated: first
offender; admit offence; will not commit offence in future; old
parents need care and attention and both are lovers. (iv) The
learned sessions judge sentenced the accused to 12 years
C imprisonment and 3 strokes of whipping for the 1st charge
whilst 7 years and 2 strokes of whipping for the 2nd charge.
The sentence to run consecutively. The reasons given are: not
denied rampant offence and give sentence to deter like minded
offender; lovers but accused took advantage and weight public
D verses accused interest. (v) On appeal to the High Court, the
learned sessions judge’s sentence was affirmed but strokes of
whipping to 1 offence each for the reasons that no reason to
disturb and the girl went willingly therefore whipping is
excessive.
E
[7] Further, the learned Senior Federal Counsel complains in a
vociferous manner that courts should not be over sympathetic to
the accused and asserts in an unusual tone as follows:
I am fully aware of the prosecution role in administering justice
F and to strike balance between the interest of the perpetrator and
victim. However I would also humbly like to seek solace to this
Honourable court in balancing the interest of both parties.
And relies on the following cases, where the courts on its own
facts echoed various guidelines and principles in relation to
G
sentencing principles. The authorities and statements the learned
Senior Federal Counsel relies are set out as follows:
(a) In Attorney Generals’ References (Nos 120, 91 and 119 of 2002)
[2003] 2 All ER 955, it was stated:
H
In all cases of sexual interference, whether amounting to
rape or not, it was necessary to take into account all the
degree of harm to the victim; the level of the offenders
culpability; and the level of risk to society posed by the
offenders. In all classes of sexual offences, it was also
I necessary to deter others from acting in a similar fashion.
Moreover, before passing a lighter sentence because the
offences were state, the court should weigh the impact on
the victim.
123
Current Law Journal
(b) In PP v. Loo Choon Fatt [1976] 2 MLJ 256, Justice Hashim A

Yeop A Sani opined:
President and Magistrate are often inclined quite naturally to
be over-sympathetic to the accused. This is a normal
psychological reaction to the situation in which the lonely
B
accused is facing an array of witnesses with authority. The
mitigation submitted by the convicted person will also
normally bring up problems of family hardship and the
other usual problems of living. In such a situation the
courts might perhaps find it difficult to decide as to what
sentence should be imposed so that the convicted person C
may not be further burdened with additional hardship. This
in my view is a wrong approach. The correct approach is
to strike balance, as far as possible, between the interests
of the public and interests of the accused”. Lord Goddard
LCJ in Rex v. Grondkowski [1946] 1 All ER 560 at 561
D
offered some good advice when he said:
The judge must consider interest of justice as well as the

interest of the prisoners. It is too often nowadays,
thought, or seems to be thought, that the interests of
justice means only the interests of the prisoners. E
(c) In Hilbery J in Rex v. Kenneth John Ball 35 Cr. App. R 164

the court opined as follows:
In deciding the appropriate sentence a court should always
be guided by certain considerations. The first and foremost F
is the public interest. The criminal law is publicly enforced,
not only with the object of punishing crime, but also in the
hope of preventing it. A proper sentence, passed in public,
serves the public interest in two ways. It may deter others
who might be tempted to try crime as seeming to offer
G
easy money on the supposition, that if the offender is
caught and brought to justice, the punishment will be
negligible. Such a sentence may also deter the particular
criminal from committing a crime again, or induce him to
turn from a criminal to an honest life. The public interest
is indeed served, and best served, if the offender is induced H
to turn from criminal ways to honest living. Our law does
not, therefore, fix the sentence for a particular crime, but
fixes a maximum sentence and leaves it to the court to
decide what is, within that maximum, the appropriate
sentence for each criminal in the particular circumstances of
I
each case. Not only in regard to each crime, but in regard
to each criminal, the court has the right and the duty to
decide whether to be lenient or severe.
124
A (d) In PP v. Muhari bin Mohd Jani & Anor [1999] 8 CLJ 430,
the court opined:
Lord Lawton in the Court of Appeal case of R v. Sarjeant
[1974] 60 Cr App R 74, in giving the judgment of the
court, referred to the classical principle of retribution in
B
sentencing (he did also refer to the other principles of
deterrence, prevention and rehabilitation). His Lordship said
that the Old Testament concept of an eye for an eye and a
tooth for a tooth no longer plays any part in criminal law
and continued:
C
There is, however, another aspect of retribution which is
overlooked: it is that society, through the courts, must show its
abhorrence of particular types of crime, and the only way in
which they, the courts, can do this is by the sentence they pass.
The courts do not have to reflect public opinion. On the
D other hand, courts must not disregard it. Perhaps the
main duty of the court is lead public opinion. (emphasis
added.)
(e) In Rex v. Grondkowski (supra), Lord Goddard LCJ observed:

E The judge must consider the interests of justice as well as
the interests of the prisoners. It is too often nowadays
thought, or seems to be thought, that the interests of justice
means only the interests of the prisoners.
F
(f) In PP v. Yap Huat Heng [1986] 1 CLJ 81; [1986] CLJ (Rep)
645, the court opined:
Justice Shaik Daud expressed that in specific offences the
court should not place too much emphasis on the fact that
the offender is young and a first timer. Public interest
G demands that in such cases a deterrent sentence ought to
be given.
(g) In Jumari bin Mohamed v. PP [1982] 1 MLJ 282, the court

stated:
H For the purpose of doing substantial justice, the court must
bear in mind that justice must be done not only to the
convicted person but also to society at large on whose
behalf the Public Prosecutor acts. As stated by Thomson
CJ in Veerasingam case at page 78: “It is just as imperative
I that a rightful conviction should be successfully defended as
it is that a wrongful one should be successfully attacked”.
125
Current Law Journal
[8] In reliance of the above, the learned Senior Federal Counsel A

asserts that the sentence passed by the learned sessions judge is
clearly inadequate and seeks to move this appellate court to seek
a more considerable sentence to be passed without submitting
why the discretion exercised by the learned sessions judge in law
must be impeached by a court exercising its appellate powers. B
[9] I have relentlessly repeated in my judgments that it is wrong

in principle for the prosecution to file appeals and clog the criminal
administration of justice purely on the grounds of inadequacy of
sentence; that too in cases of 1st offenders when the prosecution C
cannot demonstrate that the trial court has erred in law in failing
to take into considerations the guiding principles for sentencing.
(See CRA-41-14-2007-II Public Prosecutor v. Hisla bin Sulai (m),
my judgment delivered on 28 May 2007). In this case the learned
sessions judge has in crux and in a very articulate manner given D
her grounds for judgment and I find it difficult to disturb the same
in reliance of the hollow submission of the prosecution who
attempts to cite cases, the facts and circumstances of which are
different from the facts of this case. Further, I take the view that
the learned sessions judge will have considered various other E
factors though not mentioned in the grounds of judgment. My
reasons are as follows:
(1) The offence charged though “rape” is not in the strictest term.
in the ordinary language, one that can be attributed to the
F
terminology of rape. Oxford dictionary defines rape as follows:
The act of taking anything by force; violent seizure (of
goods), robbery. The act of carrying away a person (esp.
woman) by force.
G
Thus, rape ordinarily means a violent offence and is not
between consenting parties. However, “statutory rape” is in
essence a misnomer. It does not carry any characteristic of
rape. It refers to an offence of having sex outside marriage
with a female person below the age. The so called statutory H
rape finds a place in the Penal Code under s. 375(d) and (e)
which reads as follows:
375. A man is said to commit “rape” who, except in the
case hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the I
following descriptions:
126
A (a) against her will;
(b) without her consent;
(c) with her consent, when her consent has been obtained
by putting, her in fear of death or hurt to herself or any
B other person, or obtained under a misconception of fact
and the man knows or has reason to believe that the
consent was given in consequence of such misconception:
(d) with her consent, when the man knows that he is not
her husband, and her consent is given because she
C believes that he is another man to whom she is or
believes herself to be lawfully married or to whom she
would consent;
(e) with her consent, when, at the time of giving such

consent, she is unable to understand the nature and
D
consequences of that to which she gives consent;
(f) with or without her consent, when she is under sixteen

years of age.
E
Unlike rape, the exercise of discretion for the sentence for
statutory rape cannot be the same; for rape is a violent
offence and statutory rape is an offence of passion and that
too by consent of parties. This act of statutory rape is one
which not only the law condemns but is one that is also
F
unacceptable practice among major religions, race and culture
where the common trend has been that sex cannot be outside
marriage whether or not the person is underage. The
punishment in such cases where sex has taken outside
marriage may attract death penalties under their respective
G
customary law. However, Parliament has balanced this by
imposing strict penalties only for sex outside marriage with a
female below the age of 16 years. For this purpose, it has left
the discretion entirely to the court what sentence to be
imposed save that there must be a minimum sentence of 5
H
years which must be imposed and whipping is only optional.
I would have thought that whipping should be the mandatory
sentence for case of statutory rape and term of imprisonment
must be at the option of the court. The reasons for my view
have been reflected in Leken (supra) which the prosecution had
I
relied on in this case. However, the law does not permit this
approach for statutory rape as it stands unless it is amended.
Statutory rape must be seen to be more of a social problem
and must be addressed through religious and/or moral
127
Current Law Journal
education by parents and authorities and imprisonment of A

offenders will only add to further social problems. A proper
deterrent sentence in lieu of imprisonment in such cases will
be whipping to instigate discipline. In the Brunei case of Taib
bin Gemok v. Public Prosecutor [1984] 1 MLJ 313, Justice Rhind
adequately explains why imprisonment alone should not be B
considered in certain cases; he opined in that case as follows:
(i) in terms of penalties for criminal offences, a maximum
sentence of 6 months’ imprisonment and a fine of $1,000/-
is indicative that the legislature does not regard an offence
C
as being one of high order of gravity, and for such an
offence it would normally only be in a situation where there
were aggravating circumstances that a court would take the
step of sending an offender, particularly a first offender, to
prison. For offences under this section, a prison sentence
should be the exception, at least for first offenders; D
(ii) in the present case, a sentence of imprisonment was wholly

in principle. A fine of $250/- should be substituted for the
term of imprisonment and the appellant should be disqualified
from applying for licences to drive any class of vehicle for a
period of 12 months. E
For the purpose of our case, the proposition of Justice Rhind

is eye catching when His Lordship says:
The modern tendency in sentencing, as I understand it, is
F
not to try to fill the jails at every conceivable opportunity,
but only to send people to prison where this is essential in
the interest of society. I certainly do not regard it as in the
interest of society to send people previously of good
character, particularly young people, to prison when there
are other adequate means of dealing with them. G
The above quote is one which the prosecution must be in a

position to comprehend with, at all material times, when it
approaches the appellate bench. Besides, I take the view that
the sub court must subscribe to the dicta of Justice Rhind H
according to the facts and justice of the case, unless the law
prohibits the court from doing so.
[10] For reasons stated above, I dismiss the appeal. I hereby

order so.
I
128
Public Prosecutor v. Nazarudin Bin Ahmad & 2 Ors.
[1993] 2 CLJ Dr. Visu Sinnadurai J. 543
with with the full force of the law, it is utterly a PUBLIC PROSECUTOR
regrettable that the Accused should succeed
v.
due to the aforesaid gross infirmities in his
arrest and prosecution. Obviously the prin- NAZARUDIN BIN AHMAD & 2 ORS.
ciple adumberated above is more important
than the case itself, and so, with considerable HIGH COURT, KUALA LUMPUR
regret, this Court has no option but to acquit DATO’ DR. VISU SINNADURAI J.
b [CRIMINAL TRIAL NO. 45-6-91]
19 MARCH 1993
CRIMINAL LAW AND PROCEDURE: Sentenc-

ing - Principles and guidelines - Disparity of
sentences for similar offences - Plea of guilty -
First and juvenile offenders - Public interest.
c
The three accused persons were charged in
furtherance of the common intention of all of
them to commit murder by causing the death
of one Francis Adickalam, an offence punish-
able under s. 302 of the Penal Code. All three
accused persons pleaded not guilty and claimed
d trial. The trial then went on for about 4 days.
The prosecution later amended and reduced
the charge to one of culpable homicide not
amounting to murder, punishable under the
first limb of s. 304 of the Penal Code read
together with s. 34 of the said Code. All the
three accused persons elected to plead guilty to
e the reduced charge.
Held:
[1] The plea of guilty by the accused is a
consideration which should be taken into ac-
count in determining their sentence. However,
f considering the serious nature of the offence
the accused persons should be given a discount
of one-quarter rather than one-third of the
sentence which would be imposed on them had
they pleaded not guilty and been found guilty
after a long and protracted trial.
[2] It is clear that the first accused played a
g
more active role in the commission of the
offence. It was he who had the revolver with
him and it was he who fired the fatal shot
killing the innocent taxi driver. Though, gener-
ally, there should be no disparity of sentences
in a case where two or more persons are
h charged for the same offence, the fact that the
culpability of one of them is greater should be
borne in mind.
[3] The first and third accused are young, and
they are first offenders. In such circumstances,
the Court should consider how the length of
i time spent in prison would affect their own
129
Current Law Journal
544 June 1993 [1993] 2 CLJ
lives and society after they have completed a The three accused, Nazarudin (first accused:
serving the sentence. Sometimes public inter- Aziz (second accused); and Azizul (third ac-
est may itself demand that a shorter term of cused), were charged in furtherance of the
imprisonment is desirable as a long imprison- common intention of all of them to commit
ment term may create more problems to the murder by causing the death of one Francis
society as the prisoner would have more diffi- Adickalam, an offence punishable under s.
culties in readjusting himself to family and 302 of the Penal Code. All three accused
community life on completion of his prison b pleaded not guilty and claimed trial. A jury
term. was chosen in accordance with the procedure
under the Criminal Procedure Code. The trial
[First, second & third accused sentenced to 8 years, then went on for about 4 days.
9 years and 5 years imprisonment respectively].
On 22 December the Deputy Public Prosecu-
Cases referred to: tor informed the Court that an amended charge
Lee Weng Tuck v. PP [1989] 2 CLJ 120/[1989] 1 c was being tendered. The charge of murder
SCR 572 (foll) was reduced to one of culpable homicide not
PP v. Ravindra & Ors. [1992] 4 CLJ 2043 (foll) amounting to murder, punishable under the
R v. Ball [1951] 35 Cr App R 164 (refd)
first limb of s. 304 of the Penal Code read
PP v. Loo Choon Fatt [1976] 2 MLJ 256 (refd)
Teo Siew Peng & Ors. v. PP [1985] 2 MLJ 125 together with s. 34 of the said Code. The new
(refd) charge read as follows:
PP v. Lim Chuan Hock [1949] MLJ 231 (refd) Bahawa kamu, di antara jam 11.00 p.m. 8
d
PP v. Francis [1989] 1 CLJ 972/[1989] 2 MLJ Julai 1989 hingga jam 12.45 a.m. 9 Julai
178 (refd) 1989, di satu kawasan lapang berhampiran
Tukiran v. PP [1955] MLJ 24 (refd) rumah No. 29A, Jalan 8/84, Taman Dato’
PP v. Teh Ah Cheng [1976] 2 MLJ 186 (refd) Senu, di dalam Wilayah Persekutuan Kuala
Lumpur, dengan niat yang sama, telah
Legislation referred to: melakukan homisid salah tak terjumlah
Criminal Procedure Code, ss. 3, 173A, 293 & membunuh, dengan menyebabkan kematian
294 e Francis a/l Adickalam KP. No: 8381754 (B),
Juvenile Courts Act (Act 90) ss. 3, 15(2)(6), 40 dan dengan itu kamu telah melakukan satu
Penal Code, ss. 34, 302, 304 kesalahan yang boleh dihukum di bawah
cabang pertama s. 304 Kanun Keseksaan
Other sources referred to:
(NNMB Bab 45), dibaca bersama-sama
The English Sentencing System, by Cross,
dengan s. 34 Kanun yang sama.
3rd Edn., p. 141
Archbold, Criminal Pleadings, Evidence The charge was then read and explained to
and Practice, by D.A. Thomas, 1993, paras
f
each of the accused persons. All three accused
5-152, 5-169
persons elected to plead guilty on the reduced
Thomas on Principles of Sentencing,
1st Edn. charge.
The deputy Public Prosecutor then read out
For the Public Prosecutor - Mohamad Hanafiah
bin Zakaria, DPP the following statement of facts pertaining to
For the first Accused - Gurbachan Singh; M/s. g the new and reduced charge. The facts as
Bachan & Kartar presented by the Deputy Public Prosecutor
For the second Accused - Kartar Singh; M/s. were as follows:
Bachan & Kartar
For the third Accused - Murugappan s/o Fakta Kes
Manikam (Mohd Azizul Baharin bin 1. Pada 9 Julai, 1989 jam lebih kurang 1 pagi
Mohd Kamarul Baharin with him); M/s.
di Kg. Puah Bahagia, Sentul Pasar, Kuala
KR. P. Perumal
h Lumpur, sebuah teksi No. Pendaftaran
JUDGMENT 2104, kepunyaan Kandasamy a/l Perumal,
telah ditemui oleh penduduk-penduduk
Dr. Visu Sinnadurai J: kampung ditinggalkan di tepi sebatang
Facts jalan. Semasa itu, pemandu teksi tidak
berada di dalamnya dan teksi itu
At the conclusion of the trial, this Court took ditinggalkan dengan pintu tidak berkunci
time to consider the appropriate sentence to i dan kunci berada di ‘ignition’nya. Radio di
be passed on the three accused. dalam teksi itu juga berpasang dan lampu
130
kecilnya menyala. Penduduk-penduduk a pada permit tersebut dan memaklumkan

kampung mengesyaki sesuatu dan mereka terjumpanya teksi tersebut.
telah berhubung pihak polis.
4. Usaha telah dijalankan untuk mengesan
2. Sebelum daripada itu, pada hari yang sama, pemandu teksi tersebut. Pihak polis telah
jam lebih kurang 12.45 tengah malam, dapat berjumpa dengan tuan punya teksi
tidak jauh daripada tempat di mana teksi yang bernama Kandasamy a/l Perumal
ditemui, 2 orang penduduk kampung iaitu b dan mereka telah diberitahu bahawa teksi
Aziz bin Salleh dan Hj. Mohd Noor bin itu telah dipandu oleh Francis a/l
Jantan, telah melihat 3 orang masuk ke Adickalam, (iaitu si mati). Usaha telah
bahagian belakang rumah Aziz bin Salleh. dijalankan oleh abang si mati iaitu
Kedua-dua mereka kemudiannya pergi Sivanathan a/l Adickalam untuk mencari
meninjau ke bahagian belakang rumah si mati di Kg. Puah Bahagia, Bandar Baru
tersebut dan ketika dalam perjalanan, Sentul, Kuala Lumpur. Apabila sampai di
mereka telah terserempak dengan salah c satu kawasan lapang berhampiran rumah
seorang daripada orang tersebut. Orang No. 29A, Jalan 8/84, Taman Dato’ Senu,
ini telah dicam oleh kedua-dua Aziz bin beliau telah menjumpai si mati terbaring
Salleh dan Hj. Mohd Noor bin Jantan di atas tanah. Apabila pemeriksaan dibuat
sebagai tertuduh kedua iaitu Aziz a/l didapati si mati telah pun meninggal dunia
P. Ajah Mydin Eusoff di dalam kawad cam dan mengalami kecederaan di kepalanya.
yang diadakan pada 16 Julai, 1989 di Ibu Beliau kemudiannya telah balik ke Balai
d
Pejabat Polis Daerah Kuala Kangsar. Dua Polis Sentul dan telah melaporkan hal
orang lagi dapat melarikan diri. Apabila terjumpanya mayat si mati.
ditanya oleh kedua-dua mereka berkenaan
5. Siasatan telah dijalankan oleh Insp. Mohd.
sebab tertuduh kedua dan kawan-
Bakri bin Ghazali. Pada 11 Julai, 1989
kawannya berada di situ, tertuduh kedua
jam lebih kurang 2.50 petang, ketiga-tiga
telah mengatakan mereka hendak kencing.
tertuduh telah ditangkap oleh anggota-
Apabila kedua-dua penduduk kampung e anggota polis dari Balai Polis Manong,
itu tidak berpuashati dengan jawapan terse-
Kuala Kangsar di Pengkalan Bot Tambang
but, mereka telah memanggil lain-lain
Pekan Manong, setelah mereka mengelak
penduduk kampung dan ketika ini,
diri dari melalui sekatan jalan raya yang
tertuduh kedua juga telah melarikan diri.
dibuat di hadapan Balai Polis tersebut.
3. Pada jam lebih kurang 1.50 pagi, Kpl. Setelah ditangkap, mereka telah dibawa
31240 Abdul Rasheed bin Mahmood telah f ke Balai Polis Manong. Pada hari yang
menerima arahan daripada Bilik Gerakan sama jam 4.30 petang, ketika disoal oleh
Kuala Lumpur supaya pergi ke Kg. Puah PPP Tung Eng Keong, tertuduh pertama
Bahagia, Sentul Pasar, Kuala Lumpur, telah memberi maklumat dan hasil
berkenaan maklumat terjumpanya sebuah daripada maklumat ini, tertuduh pertama
teksi yang ditinggalkan di situ. Pada jam telah membawa pihak polis yang diketuai
lebih kurang 1.55 pagi, Kpl. 31240 Abdul oleh PPP Tung Eng Keong ke tempat di
Rasheed telah sampai di tempat yang g mana tertuduh pertama dan dua tertuduh
diarahkan dan telah melihat sebuah teksi lain ditangkap. Di sana, tertuduh pertama
No. HW 2104 terletak di tepi sebatang telah menunjukkan tempat di mana
jalan tanpa pemandunya. Setelah bertanya sepucuk revolver dibuang ke dalam sungai
berkenaan pemandu teksi itu dan tidak sebelum ketiga-tiga mereka ditangkap.
ada sesiapa yang mengaku, beliau telah PPP Tung Eng Keong telah mengarahkan
membawa teksi tersebut ke Balai Polis Insp. Mohammed Nor bin Idrus supaya
Sentul dan telah membuat satu laporan h menyelam ke dalam sungai dan Insp.
iaitu Sentul Report No. 4663/89. Beliau Mohammed Nor telah dapat menjumpai
telah membuat pemeriksaan ke atas teksi sepucuk Revolver Smith & Wesson. 38 Spl
itu dan telah menjumpai Permit Pemandu 2 Serial No. J 804669, di samping dua
Teski Kedua atas nama Francis a/l barang lain, di dalam sungai itu. Siasatan
Adickalam. Pihak Polis kemudiannya telah yang dijalankan oleh PPP Tung Eng Keong
berhubung dengan alamat yang terdapat i mendapati revolver ini adalah berkaitan
131
Current Law Journal
546 June 1993 [1993] 2 CLJ
dengan Ampang Report No. 6696/89. Pada a terserempak dengan dua orang penduduk
14 Julai, 1989, PPP Tung Eng Keong kampung dan tertuduh kedua telah ditahan
telah menelefon Insp. Mohd Bakri dan manakala tertuduh pertama dan tertuduh
memaklumkan berkenaan penemuan ketiga telah melarikan diri. Tidak lama
sepucuk revolver dan tangkapan ketiga- kemudian, tertuduh kedua juga dapat
tiga tertuduh. melarikan diri.
6. Pada 15 Julai 1989, Insp. Abu Othman bin b 7. Siasatan polis mendapati bahawa tertuduh
Awang, Insp. Sheridan Mohd dan Insp. pertama telah mencuri revolver tersebut
Zulkefly telah merakam percakapan daripada D/Kons. 73039 Oh Chu Beng di
amaran daripada tertuduh pertama, rumahnya pada 29 Jun, 1989. Setelah
tertuduh kedua dan tertuduh ketiga, berjaya mencuri revolver itu, tertuduh
masing-masing. Pada hari tersebut jam pertama telah memberitahu tertuduh
lebih kurang 11 malam mereka telah kedua dan tertuduh ketiga bahawa beliau
menahan sebuah teksi yang dipandu oleh c mempunyai sepucuk revolver dan mahu
si mati. Mereka kemudian telah masuk ke menggunakannya untuk merompak teksi.
dalam teksi itu dan meminta si mati Pada 9 Julai, 1989, ketiga-tiga tertuduh
membawa mereka ke Sentul. Semasa telah merancang untuk melakukan
dalam perjalanan, tertuduh ketiga telah rompakan tersebut dengan menggunakan
beritahu si mati supaya mengikut jalan revolver itu.
kampung. Mereka kemudian telah melalui
d 8. Pada 10 Julai, 1989, lebih kurang 2.15
satu kawasan sunyi dan gelap dan tertuduh
petang, satu pembedahan siasat
pertama telah meminta si mati
telah dijalankan ke atas si mati oleh
menghentikan teksi itu. Ketiga-tiga
Dr. Abd. Rahman Yusof. Hasil daripada
tertuduh kemudiannya telah keluar
pembedahan tersebut, didapati si mati
daripada teksi dan tertuduh kedua dan
menemui ajalnya akibat kecederaan di
tertuduh ketiga telah berpura-pura
kepala yang disebabkan luka akibat
membuang air kecil manakala tertuduh e tembakan.
pertama berpura-pura muntah. Semasa
inilah, tertuduh pertama telah 9. Ketiga-tiga tertuduh telah mengaku
menghampiri si mati dan tertuduh kedua bahawa mereka terlibat dalam rompakan
dan tertuduh ketiga mengikut sama. dengan menggunakan senjatapi milik
Tertuduh pertama telah mengeluarkan tertuduh pertama, dan dalam melakukan
revolver tersebut dari pinggangnya dan rompakan tersebut, telah menyebabkan
telah mengacukan ke arah simati. Tertuduh f kematian si mati apabila tertuduh pertama
pertama kemudiannya telah meminta telah melepaskan satu das tembakan
wang dari si mati, lalu diberitahu oleh si daripada revolver tersebut ke bahagian
mati bahawa beliau tidak mempunyai kepala sebelah kanan si mati. Akibat
wang. Dengan serta merta, tertuduh daripada tembakan tersebut, si mati telah
pertama telah melepaskan satu das menemui ajalnya.
tembakan ke bahagian kepala sebelah
g After the Deputy Public Prosecutor had read
kanan si mati. Mereka kemudiannya telah
mengeluarkan simati daripada teksi itu out the facts, the Court then asked each and
dan meninggalkannya di situ. Ketiga-tiga everyone of the accused whether they under-
tertuduh kemudiannya telah membawa stood the facts and whether they agreed to it.
teksi tersebut dari tempat itu. Tidak Each of the accused replied that they did so.
jauh dari situ, lebih kurang 1 km dari They were again asked whether they still
tempat berlakunya tembakan, mereka maintained their plea of guilt. The Court
h having ascertained that they understood and
telah menghentikan teksi itu dan
meninggalkannya di tepi jalan. Ketiga- appreciated the consequences and nature of
tiga tertuduh kemudian telah berjalan kaki their plea, recorded their plea of guilt and
ke arah Bandar Baru Sentul. Dalam convicted them accordingly. The procedure,
perjalanan, mereka telah pergi ke belakang as stated by the Supreme Court in the case of
sebuah rumah tidak jauh daripada tempat Lee Weng Tuck v. PP [1989] 1 SCR 572, was
di mana teksi ditinggalkan untuk buang i complied with.
air kecil. Ketika ini mereka telah The jury was then also accordingly discharged.
132
Plea of Mitigation a The learned Deputy Public Prosecutor urged

this Court to impose a heavy sentence taking
Counsel for each of the three accused then
into account the public interest. He urged that
made their plea in mitigation as stated below:
public interest demanded a deterrent sen-
(a) First Accused tence, especially in the case of the first ac-
cused. He pointed out that the victim in this
The first accused who is now 22 years old case was an innocent taxi driver.
was merely over 18 years at the time of b
the commission of the offence. He is a Sentencing Principles and Guidelines
first offender. His mother died during his
The offence for which all three accused had
childhood and generally he had lacked
pleaded guilty is one which falls under the
proper parental care. He also lost his
first limb of s. 304 of the Penal Code. It carries
brother in an accident and he is now the
a sentence for a term of imprisonment not
only surviving son. He has now realised
c exceeding 20 years.
his folly and undertook to turn over a new
leaf. By pleading guilty, he submitted This Court had the opportunity in the case of
that he has saved judicial time and urged PP v. Ravindra & Ors. [1992] 4 CLJ 2043, to
this Court to take this factor into deal with in detail the general sentencing
consideration. principles and guidelines applicable in a simi-
lar case where the accused persons had also
Counsel for the first accused referred to
pleaded guilty to an offence under s. 304 of the
the case of PP v. Ravindra & Ors. [1992] d
Penal Code. This Court reiterated that one of
4 CLJ 2043, and pleaded that a discount
the most important aspects of sentencing
or credit be given for the plea of guilty
principles is the public interest aspect. The
made by the accused. Counsel, however,
Court also pointed out that whilst public
admitted that since the first accused
interest was of utmost importance, the Court
played a more active role in the commis-
also had to consider several other factors in
sion of the offence, his sentence should
e determining the appropriate sentence to be
probably be higher to that of the second
imposed in a particular case. These are:
and third accused.
(i) Discount or credit for the plea of guilty;
(b) Second Accused
(ii) Comparison of sentences in other cases
The second accused was 27 years old at for a similar offence;
the time of the commission of the offence. (iii) Disparity of sentence amongst the ac-
He has had previous convictions. He lost f cused persons; and
his father at an early age and lacked (iv) Mitigating factors relevant to the present
direction in life. Like the first accused, case.
the Court was urged to take into account
As these factors have been fully explained in
the plea of guilty as an important miti-
my judgment in PP v. Ravindra & Ors. [1992]
gating factor.
4 CLJ 2043, I do not propose to repeat them
(c) Third Accused g here. However, of particular importance to
the present case are the following two factors
The third accused was a juvenile, slightly
which need to be taken into account in this
over the age of 17 at the time of commis-
particular case:
sion of the offence. He left school whilst
he was in form five and helped his father (a) The plea of guilty as a mitigating factor;
in the poultry business. He did not have and
much guidance from his parents. He is (b) Whether there should be disparity of
h
the only son of a family of five. He too like sentence among the accused persons.
the other accused, was remorseful and
The exposition by Hilberg J in R v. Ball [1951]
urged this Court to consider the plea of
35 Cr App R 164, which is now regarded as the
guilty as a mitigating factor.
locus classicus on this aspect of sentencing
Counsel for all three accused assisted the principle should be borne in mind:
Court by stating the general principles if
i Our law does not, therefore, fix the sen-
sentencing and relied on PP v. Ravindra & tence for a particular crime, but fixes a
Ors (supra). maximum sentence and leaves it to the
133
Current Law Journal
548 June 1993 [1993] 2 CLJ
court to decide what is, within that maxi- a For the fuller discussion on the principles
mum, the appropriate sentence for each applicable to discount for a plea of guilty,
criminal in the particular circumstances of see the observation of this Court in PP v.
each case. Ravindra, above.
His Lordship on the importance of a plea in (b) Normal sentence
mitigation added:
From a review of some similar cases, it
It is for these reasons, and with these b would appear from the cases that as a
purposes in view, that before passing sen-
tence the court hears evidence of the ante- general rule the appropriate sentence for
cedents and character of every convicted an offence under the first limb of s. 304 of
person ... The background, antecedents and the Penal Code varies from 8 to 10 years.
character of the one (offender) and his
whole bearing in court may indicate a
(c) Disparity of sentence
chance of reform if leniency is extended, From the facts presented by the learned
whereas it may seem that only a harsh c
Deputy Public Prosecutor, it is clear that
lesson is likely to make the other stop in his
the first accused played a more active
criminal career.
role in the commission of the offence. It
These principles expounded by Hilbury J has was he who had the revolver with him
been consistently followed by the Malaysian (the fact that it had been stolen is not
Courts: see Hashim Yeop Sani J (as he then relevant for the present purpose as the
was) in PP v. Loo Choon Fatt [1976] 2 MLJ d first accused had not been charged for
256; Tan Chiaw Thong J in Teo Siew Peng & this offence before this Court nor is there
Ors. v. PP [1985] 2 MLJ 125. any evidence of conviction in any other
Court) and it was he who fired the fatal
Application of Sentencing Principles
shot killing the innocent taxi driver.
In applying the accepted principles of sen- Though, generally, as I have said earlier,
tencing, I come to the following conclusions: there should be no disparity of sentences
e in a case where two or more persons are
(a) Discount for the Plea of Guilty charged for the same offence, the fact
This Court is of the view that the plea of that the culpability of one of them is
guilt by the accused is a consideration greater should be borne in mind.
which should be taken into account in On disparity of sentences, the following
determining their sentence. However, principles are stated by Thomas in Archbold
considering the serious nature of the f 1993, referred to above:
offence, I hold that the accused persons
should be given a discount of one-quarter Where two or more offenders are to be
of the sentence rather than one-third sentenced for participation in the same of-
which would be imposed on them had fence, the sentences passed on them should
be the same, unless there is a relevant
they pleaded not guilty and had been difference in their responsibility for the
found guilty after a long and protracted offence or their personal circumstances. If
trial. g there are reasons for imposing a particular
form of sentence ... on one which does not
On this aspect of the sentencing principle, it
apply to the other, it is not necessarily
is stated by the leading writer on sentencing wrong to make such an order in respect of
DA Thomas in the most recent edition of one and impose a sentence of imprisonment
Archbold, Criminal Pleadings, Evidence on the other. [Paragraph 5-169].
and Practice 1993 as follows:
h (d) First offenders
As a general principle, an offender who
pleads guilty may expect some credit, in the The first and third accused are young,
form of a reduction in the sentence which and they are first offenders. In such
would have been imposed if he had been circumstances, the Court should consider
convicted by the jury on a plea of not how the length of time spent in prison
guilty ... The discount for a plea of guilty is would affect their own lives and society
normally allowed even in cases of extreme
i after they have completed serving the
seriousness. [Paragraph 5-152].
sentence. Sometimes public interest may
134
itself demand that a shorter term of a alternatives spelt out in s. 15(2) appear to be
imprisonment is desirable as a long im- suitable in the present case. As the third
prisonment term may create more accused is now over 21 years old, sending him
problems to the society as the prisoner to an approved school or committing him to a
would have more difficulties in readjust- place of detention is not appropriate.
ing himself to family and community life
This Court has also considered whether any
on completion of his prison term. As
b other sentence, besides imprisonment as pro-
pointed in the passage in Cross, The
vided for in the Criminal Procedure Code was
English Sentencing System, 3rd Edn.,
suitable. For this purpose, the Court has
at p. 141:
considered its powers under ss. 173A, 293 and
Prolonged and repeated imprisonment 294 of the Criminal Procedure Code. Quite
is destructive of family relationships clearly s. 293 is inapplicable as the third
and, by encouraging the prisoner’s accused is not a youthful offender since he is
identification with the attitudes of the c above the age of 16 (see s. 3 of the Criminal
prison community, increases his alien-
ation from normal society. In addition, Procedure Code). In determining whether this
long-term institutionalisation is all too Court should invoke ss. 173A or 293, the Court
likely to destroy a prisoner’s capacity for has considered in detail the scope of these
individual responsibility and to increase sections: see generally the views expressed by
the problems he must face when he re- Hashim Yeop Sani J (as he then was) in PP v.
turns to society. Loo Choon Fatt [1976] 2 MLJ 256, and the
d
cases referred to therein; Tan Chiaw Thong J
(e) Juvenile Offender: Third Accused
in Teo Siew Peng [1985] 2 MLJ 125; Thomson
I must confess that I have had some CJ in PP v. Lim Chuan Hock [1949] MLJ 231;
difficulty in determining the sentence to and more recently Edgar Joseph Jr. J (as he
be imposed on the third accused. The then was) in PP v. Francis [1989] 2 MLJ 178.
third accused was under 18 years of age
In the present case, this Court is of the view
at the time of the commission of the e that as the offence committed by the third
offence. Strictly speaking therefore, he
accused cannot be classified as one of ‘trivial
was a juvenile as defined by the Juvenile
nature’, ss. 173A or 294 of the Criminal
Courts Act (Act 90). However, the Juve-
Procedure Code cannot be invoked.
nile Courts Act itself provides that a
juvenile may be tried individually or In considering these principles, I have not
jointly with others in the High Court for overlooked the following observation of
an offence and if found guilty may be f Bellamy J in Tukiran v. PP [1955] MLJ 24,
sentenced to a term of imprisonment: see regarding imprisonment of young offenders:
ss. 3 and 40.
It has been stressed by this Court that it is
Though the High Court has the power to try a very desirable that a young first offender
juvenile, the powers of the High Court in who is between the ages of 17 and 21 should
sentencing a juvenile are subject to s. 15(2) of be kept out of prison, if possible. [At p. 25].
the Juvenile Courts Act [and in offences car- g I have also been mindful of the following
rying the death sentence, subject to ss. (6)]. sentencing principle as stated by the leading
Section 15(2) provides as follows: writer on sentencing, Thomas in his book, on
No young person shall be sentenced or or- Principles of Sentencing, 1st edition, re-
dered to be imprisoned if he can be suitably lating to public interest and the young of-
dealt with in any other way whether by fender. He points out as follows:
probation, fine, or committal to a place of
detention, approved school, or Henry Gurney h In the case of a young offender there can
School, or otherwise. hardly ever be any conflict between the pub-
lic interest and that of the offender. The
It is true that the High Court has a certain public have no greater interest than that
discretion as to the nature of the sentence to he should become a good citizen. The difficult
be imposed. This discretion, however, must task of the Court is to determine what treat-
ment gives the best chance of realizing that
be exercised according to the law or
object. That realization is the first and by
accepted sentencing principles. None of the i
far the most important consideration.
135
Current Law Journal
550 June 1993 [1993] 2 CLJ
However, considering the gravity of the of- a imprisonment for 9 years to be effective
fence for which the third accused had pleaded from the date of remand. I have, in the
guilty to, I am of the view that a prison case of the second accused also in passing
sentence is the most appropriate sentence this sentence taken into account that he
under the circumstances. In so arriving at has had previous convictions.
this conclusion that a prison term is justified,
(c) Third Accused
I have been guided by some earlier decisions:
PP v. Teh Ah Cheng [1976] 2 MLJ 186; PP v. b After careful consideration of the age of
Loo Chan Fatt [1976] 2 MLJ 256; and PP v. the youth, he being a first offender, and
Francis [1989] 2 MLJ 158. the seriousness of the offence and also
the fact that he, like the other two ac-
Sentence
cused had pleaded guilty, I sentence the
Taking all these above factors into consider- third accused, Mohd Azizul Baharin to a
ation, I now impose the following sentence on c term of imprisonment of 5 years. This
the three accused persons: sentence is to run from the date of
remand.
(a) First Accused
The third accused has made a request to this
Taking into account that the first ac-
Court that he be sent to the Taiping prison
cused was, so as to speak, the “ring
instead of Kajang. Though strictly speaking,
leader” of this group of persons and that
this Court has no power to stipulate the
it was he who had planned and executed d
prison where a convicted person should be
the commission of this grave offence, his
sent to, considering the age of the accused and
culpability in the commission of the of-
that his family is from Taiping, I would rec-
fence is greater. I would, in such a cir-
ommend to the Prison Authorities that he be
cumstance, had it not been for the plea
sent to the Taiping Prison. Visitation and
of guilty, sentenced him to a period of
constant contact by the family are crucial for
twelve years imprisonment. However,
e a person of such young age serving a prison
after taking into account the discount for
sentence. A term of imprisonment in such a
the plea of guilt and also his age (he was
situation without constant family contacts
just over 18 years at the time of the
may have the adverse social problem of mak-
commission of the offence), and the fact
ing a person of such youth and immaturity
that he is a first offender, I sentence the
become a hard core criminal.
first accused, Nazarudin bin Ahmad to a
term of imprisonment for 8 years. This f
sentence is to run from the date of
remand.
(b) Second Accused
From the facts of the case, it would ap-
pear that the second accused was, like
the third accused influenced by the first g
accused to participate in the commission
of the offence. Taking into account the
plea of guilty and the discount to be given
for such a plea, but considering the fact
that he was an adult at the time of the
commission of the offence and that he
h
should have played a more important
role in guiding the other two accused
against the commission of the offence, I
also sentence the second accused,
Aziz Ajah Mydin Eusoff to a term of
i
[1954] CLJU 3
136
[1954] 1 LNS1 3[1954] 1 MLJ 86
ABDUL KARIM v. REGINA; SUNDRA SINGH v. REGINA; LOH KAI HOI v. REGINA
HIGH COURT, KUALA LUMPUR
BROWN
ACRJ
2 FEBRUARY 1954
ROAD TRAFFIC ORDINANCE 1941 S 27(1):- Driving under the influence of drink - Sentence of
imprisonment for a first offence - Facts of each to be considered in passing sentence

James William Howell 32 Cr App R 173
Thompson v. Knight [1947] 1 KB 336
Counsel:
For appellant abdul karim - David Marshall; Battenberg & Talma & L. Rayner For appellant loh kai hoi - L.
Rayner For respondent sundra singh - DG Osborne Jones; M/s. Osborne Jones & Co.
JUDGMENT
Brown A-G CJ:
These three appeals were heard on the same day, and it will be convenient to deal with them together. In
each case the appellant was convicted i inter alia of driving under the influence of drink, contrary to s.
27(1) of the Road Traffic Ordinance, 1941. In each case the appellant was sentenced to three months
imprisonment on that charge. Each case had been tried by the same Magistrate and in each case the
learned Magistrate had expressed, in his Grounds of Decision, the serious view which he took of this type
of offence. In each case I upheld the convictions but the sentences of imprisonment were quashed and
fines were substituted.
In the matter of punishment, the "type of offence" is the concern of the Legislature, which has provided the
maximum punishment which can be inflicted for a serious offence of that type. The particular offence, and
the particular offender, are the concern of the Court, whose business it is to decide what punishment is
merited upon the facts of the individual case within the limits which the Legislature has provided. Any
tendency to standardise punishment for any type of offence is to be deplored because it means that the
individual offender is being punished not upon the facts of his particular case but because he has
committed an offence of that type. This tendency is particularly to be resisted in imposing punishment for
an offence for which the Legislature has not left a wide field of discretion to the Court. For the offence
which I am considering (unlike the offences, for example, of robbery or rape) the Legislature has limited
the Court's discretion to a fine of $500 or four months' imprisonment for a first offence.
It is right that I should say that the learned Magistrate, when he tried these three cases, had not had the
advantage of seeing the judgments of Taylor J in Magistrate's Appeals No. 225 of 1953 (Lindsay) and No.
176 of 1953 (Perera). In both those cases the appellant was a first offender and had been sentenced to
three months imprisonment. In the former case the learned Judge quashed the sentence of imprisonment
and substituted the maximum fine. In the latter case he reduced the sentence of imprisonment to one
month. In the latter case the evidence of the appellant's condition was that he was too drunk to make a
statement at the Police Station and that bail had to be refused because he was incapable of establishing
his identity. I respectfully agree with both those decisions. The latter was, in my opinion, a proper case for
imprisonment, and it was on account of the appellant's circumstances (age, etc.) that the learned Judge
reduced the sentence from three months to one.
I do not propose to set out the facts of the three cases with which I am now dealing. It is sufficient to say
that if I had been in the position of the learned Magistrate I should not have considered that the facts of
any of these cases justified a prison sentence for a first offender. Moreover the sentence imposed was in
each case three-quarters of the maximum for a first offender. But it is conceivable that, except in case No.
229 of 1953, I might only have reduced the prison sentences if I had been satisfied that the learned
137
Magistrate, instead of giving effect to his dislike of a "type of offence" which we must all abhor, had
seriously applied his mind to the facts of each case, and in particular had considered (a) the degree of
intoxication and therefore the degree of the appellant's incapacity to control his vehicle, and (b) the effect
of his sentence, including the disqualification, on the individual he was punishing. In case No. 229 of 1953 I
should in any event have substituted a fine for imprisonment, because the medical evidence showed that
the appellant was in a "mild" state of intoxication. But shortly, in considering whether a prison sentence
should be imposed in the case of a first offender, the facts of the case must be carefully studied and the
gravity assessed according to the 'yard stick' afforded by the Legislature in providing a maximum of four
months imprisonment for a first offence. Upon the charges of "driving under the influence" I quashed the
sentences of imprisonment and substituted fines of $400 in cases No. 231 of 1953 and No. 218 of 1953
and a fine of $250 in case No. 229 of 1953 (where the appellant was a taxi-driver and the disqualification
entailed the loss of his livelihood).
It remains to consider certain points of law which arose in case No. 231 of 1953. The appellant was
charged with "driving under the influence" (s. 27(1), "negligent driving" (s. 25(2), and "driving without a
licence" (s. 13(5). He pleaded guilty to the third charge. He was found guilty upon the first and second
charges, and sentenced to three months imprisonment upon the first charge and fined $50 upon the
second. I agree that he was rightly charged with the additional charge of negligent driving and rightly
convicted because the offence of negligent driving is a separate and distinct offence from "driving under
the influence". (A person may "drive under the influence" and yet not drive negligently). But having
punished the appellant in respect of the first charge, a nominal penalty should have been imposed in
respect of the second, and I substituted a fine of $10 for the fine $50 on the second charge. In this
connection I may draw attention to the sentences imposed in the case of James William Howell 32 Cr App
R 173.
One of the grounds of appeal was that the charge was bad for duplicity in that it charged the appellant with
driving "whilst under the influence of drink or drugs". That point is disposed of by the decision in Thompson
v. Knight [1947] 1 KB 336.
Sentences of imprisonment quashed.
Fines substituted.
[1954] 1 LNS1 3[1954] 1 MLJ 86
Sitemap

138
NOR AFIZAL AZIZAN A
v.
PP
COURT OF APPEAL, PUTRAJAYA B

RAUS SHARIF PCA
KN SEGARA JCA
AZHAR MA’AH JCA
[CRIMINAL APPEAL NO: M-09-227-10-2011]
27 AUGUST 2012 C
[2012] CLJ JT(3)
CRIMINAL PROCEDURE: Sentence - Adequacy - Statutory rape -
Young offender - Releasing offender on probation of good conduct - Whether
adequate and appropriate - Binding over order substituted by High Court D
with sentence of imprisonment - Whether High Court erred in law and
principle - Criminal Procedure Code, s. 294
CRIMINAL PROCEDURE: Sentence - Principles - Statutory rape -
Young offender - Releasing offender on probation of good conduct - Whether
prejudicing principles of sentencing - Criminal Procedure Code, s. 294 - E
Effect and consequence

The appellant, aged 19 years and an accomplished bowler by
profession, had pleaded guilty to a charge of raping a 13-year old
minor, and in consequence was bound over to be of good F
behaviour for five years in the sum of RM25,000 under s. 294 of
the Criminal Procedure Code (‘CPC’). It was the view of the
learned Sessions Court judge (‘SCJ’), in not imprisoning the
appellant under s. 376 of the Penal Code, that public interest
would best be served by not imposing a custodial sentence. It was G
the learned SCJ’s further view that the appellant deserved a second
chance since the sexual encounter was consensual and involved no
violence, and because the appellant was a first and young offender,
had shown genuine remorse over the crime and has had a bright
future in life. On appeal, the learned Judicial Commissioner (‘JC’) H
however opined that the rehabilitative sentence thus imposed by
the SCJ was inappropriate, and inadequate, and in the
circumstances set aside the binding over order and substituted it
with a term of imprisonment for a period of five years. Dissatisfied,
the appellant appealed and argued, essentially, that it was wrong I
of the JC to have interfered with the SCJ’s decision, as the SCJ
committed no error in law or principle in preferring to invoke
s. 294 of the CPC.
139
[2012] 6 CLJ Nor Afizal Azizan v. PP 371
A Held (allowing appeal; reinstating decision and order of SCJ)

Per Raus Sharif PCA delivering the judgment of the court:
(1) The learned JC was wrong to interfere with the sentence
imposed by the learned SCJ. The learned SCJ had applied the
B
correct principles and had taken into consideration all relevant
factors in making the orders under s. 294 of the CPC. The
mere fact that the learned JC had disagreed with the learned
SCJ, and wanted to pass a different sentence, provides no
reason for him to interfere, when it is clear that the learned
C
SCJ had applied the correct principles in the assessment of the
sentence. (paras 16 & 25)
(2) It is a well accepted principle of sentencing that young
offenders, wherever possible and depending on the nature of
the offences committed, should be kept out of prison,
D especially when there are other adequate means of dealing
with them. The appellant is not only a young offender, but
also a first offender and considering the nature of the offence
and how it was committed and the other extenuating
circumstances, the learned SCJ was right in exercising his
E discretion in not sentencing the appellant to prison but instead
subjected him to an order under s. 294 of the CPC. (paras
19 & 20)
(3) The orders made under s. 294 CPC do not exonerate the
F appellant of the offence that he had committed. The appellant
is in fact convicted of the offence and the conviction will be
recorded and will form part of his criminal record for the rest
of his life. The appellant was in effect given a suspended
sentence and must behave himself for a period of 5 years,
G failing which he would be arrested and dealt with for the
original offence of rape. Hopefully, the suspended sentence
would give the appellant another chance in life and that he
would “turn over a new leaf”. If the order of the suspended
prison sentence has the effect of rehabilitating him, then public
H interest has indeed been served and best served. (paras 21 &
22)
(4) Whatever sentence to be imposed on this type of offences
must be based on the facts of each individual case. It is
neither feasible nor desirable to attempt to lay down any fixed
I
sentence that is meant to govern this type of cases. Therefore,
observations made by this court herein should not be
140
construed as intending to have a blanket application or A

applying to all cases involving young offenders charged with
similar offence as the appellant. (para 23)
Obiter:
(1) If the appellant had been older, or had used force, coercion B
or violence on the victim, or had tricked the victim into
submitting to him, or had not cooperated with the police, and
had not shown any remorse, or there is no guarantee that he
will not be committing the same offence in the future, we
would not have any hesitation, as we have done in many C
other cases of similar nature, to impose a lengthy custodial
sentence. (para 24)
Bahasa Malaysia Translation Of Headnotes
D
Perayu, yang berumur 19 tahun dan seorang pemain bowling
ternama, telah mengaku salah merogol seorang kanak-kanak
berumur 13 tahun dan berikutnya telah diperintah berkelakuan baik
selama lima tahun dengan jaminan RM25,000 di bawah s. 294
Kanun Tatacara Jenayah (‘KTJ’). Adalah menjadi pandangan yang
E
arif hakim Mahkamah Sesyen (‘HMS’), dalam tidak mengenakan
hukuman pemenjaraan terhadap perayu di bawah s. 376 Kanun
Keseksaan, bahawa kepentingan awam akan terlaksana dengan
sebaiknya jika perayu tidak dikenakan hukuman pemenjaraan. HMS
juga berpandangan bahawa perayu layak mendapat peluang kedua
F
memandangkan perlakuan seks adalah secara sukarela dan tidak
melibatkan sebarang keganasan, dan juga kerana perayu adalah
seorang pesalah muda kali pertama, telah dengan sesungguhnya
menyesali perbuatan jenayahnya dan mempunyai masa depan yang
cerah. Atas rayuan, yang arif Pesuruhjaya Kehakiman (‘PK’)
G
bagaimanapun berpendapat bahawa hukuman pemulihan yang
dijatuhkan oleh HMS adalah tidak wajar, dan tidak mencukupi,
dan dengan demikian telah mengenepikan perintah berkelakuan baik
dan menggantikannya dengan hukuman pemenjaraan untuk tempoh
selama lima tahun. Tidak berpuashati, perayu merayu dan
H
berhujah, secara pentingnya, bahawa adalah salah bagi PK untuk
mengganggui keputusan HMS, kerana HMS tidak melakukan apa-
apa kekhilafan undang-undang mahupun prinsip apabila memilih
untuk menggunapakai s. 294 KTJ.
I
141
A Diputuskan (membenarkan rayuan; memulihkan keputusan

dan perintah HMS)
Oleh Raus Sharif PMR menyampaikan penghakiman
mahkamah:
B (1) Yang arif PK silap dalam mengganggui hukuman yang

dijatuhkan oleh yang arif HMS. Yang arif HMS telah memakai
prinsip-prinsip yang betul dan telah mengambilkira semua faktor
relevan apabila membuat perintah di bawah s. 294 KTJ. Cuma
kerana yang arif PK tidak bersetuju dengan yang arif HMS,
C dan hendak menjatuhkan hukuman yang berbeza, bukanlah
alasan untuk campur tangan, bilamana ianya jelas bahawa yang
arif HMS telah menggunapakai prinsip-prinsip yang betul dalam
menilai hukuman yang hendak dijatuhkan.
(2) Adalah menjadi prinsip mantap bahawa pesalah-pesalah muda,

D
di mana boleh dan bergantung kepada jenis kesalahan yang
dilakukan, harus disisihkan dari penjara, terutama bilamana
terdapat kaedah-kaedah lain untuk menangani mereka. Perayu
bukan sahaja seorang pesalah muda, tetapi juga seorang
pesalah pertama dan mengambilkira sifat kesalahan yang
E
dilakukan, dan bagaimana ia dilakukan serta keadaan-keadaan
sekeliling yang lain, yang arif HMS betul apabila melaksanakan
budibicaranya dengan tidak memenjarakan perayu tetapi
sebaliknya mentaklukkan perayu kepada perintah di bawah
s. 294 KTJ.
F
(3) Perintah-perintah yang dibuat di bawah s. 294 KTJ tidak
melepaskan perayu dari kesalahan yang dilakukannya. Perayu
sebenarnya telah disabitkan dengan kesalahan dan sabitan itu
akan menjadi rekod jenayah baginya untuk sepanjang hayatnya.
G Perayu secara berkesannya dikenakan hukuman tertangguh dan
wajib berkelakuan baik untuk tempoh lima tahun, di mana, jika
beliau gagal, beliau akan ditangkap dan diuruskan atas
kesalahan rogol yang asal. Adalah diharap bahawa hukuman
tertangguh tersebut akan memberikan peluang kedua kepada
H perayu dan bahawa beliau akan berubah kepada kebaikan. Jika
perintah hukuman pemenjaraan tertangguh berkesan untuk
memulihkan perayu, maka kepentingan awam telah sebenarnya
terlaksana dan terlaksana dengan sebaik-baiknya.
I
142
(4) Apa jua hukuman yang hendak dijatuhkan bagi kesalahan- A

kesalahan seperti ini hendaklah diasaskan kepada fakta sesuatu
kes itu. Adalah tidak elok dan tidak mungkin untuk cuba
menggariskan suatu hukuman yang tertentu bagi mengawalselia
kes-kes sebegini. Oleh itu, segala pandangan yang dinyatakan
oleh mahkamah ini di sini tidak harus diambil sebagai berhasrat B
untuk dilaksanakan secara menyeluruh atau terpakai kepada
semua kes yang melibatkan pesalah muda yang dituduh dengan
kesalahan yang serupa seperti perayu.
Obiter: C
(1) Jika perayu adalah pesalah yang lebih dewasa, atau telah
menggunakan kekerasan, paksaan atau keganasan ke atas
mangsa, atau tidak bekerjasama dengan polis, dan tidak
menunjukkan sebarang kekesalan, atau jika tiada jaminan
D
bahawa beliau tidak akan melakukan lagi kesalahan ini di masa
hadapan, kami tidak akan teragak-agak untuk menjatuhkan
hukuman penjara yang panjang, seperti yang telah banyak kali
kami lakukan sebelum ini dalam kes-kes lain yang serupa.
Case(s) referred to: E
Abdul Karim v. Regina [1954] 1 LNS 3 HC (refd)
Jayanthan v. PP [1973] 1 LNS 56 FC (refd)
Lai Sing Ming v. PP [1995] 1 LNS 106 HC (refd)
Lim Yoon Fah v. PP [1970] 1 LNS 66 HC (refd)
PP v. Lim Hong Chin [1994] 1 CLJ 79 HC (refd)
F
PP v. Mohamad Arfah Jasmi [2008] 7 CLJ 836 HC (refd)
PP v. Mohamed Nor & Ors [1985] 1 LNS 25 SC (refd)
PP v. Tan King Hua [1965] 1 LNS 141 HC (refd)
PP v. Yeong Yin Choy [1976] 1 LNS 119 HC (refd)
Teo Siew Peng & Ors v. PP [1984] 1 LNS 71 HC (refd)
Teoh Ah Kow v. PP [1960] 1 LNS 140 HC (refd) G
Tukiran Taib v. PP [1955] 1 LNS 166 HC (refd)
Winston Rajah v. PP [1998] 1 LNS 54 HC (refd)
Criminal Procedure Code, s. 294
Penal Code, s. 376 H
For the appellant - Hisham Teh Poh Teik; M/s Teh Poh Teik & Co
For the respondent - Nadia Tajuddin, DPP
[Appeal from High Court, Melaka; Criminal Appeal No: MT1-42-29-07-
2011] I
Reported by Wan Sharif Ahmad

143
A JUDGMENT
Raus Sharif PCA:
[1] The appellant was charged before the Malacca Sessions Court
for an offence under s. 376 of the Penal Code. The offence was
B said to have been committed on 5 July 2010, between 12.30am
till 5am in room 225, Tingkat 2, King’s Hotel, Malacca. The victim
was 13 years and 4 months old.
[2] On 5 July 2011, the appellant pleaded guilty to the charge.
C The learned Sessions Court Judge (SCJ), after hearing the parties,
placed the appellant on a bond in the sum of RM25,000 for good
behaviour for a period of five years under s. 294 of the Criminal
Procedure Code (CPC).
[3] The prosecution, being dissatisfied with the sentence,
D
appealed to the Malacca High Court. The learned Judicial
Commissioner (JC) allowed the appeal and substituted the sentence
with an imprisonment term of five years. Dissatisfied, the appellant
lodged an appeal to the Court of Appeal and pending the appeal
the appellant was granted a stay of execution.
E
[4] We heard the appeal on 8 August 2012. After hearing the
parties, we allowed the appeal. We set aside the sentence passed
by the learned JC and reinstated the sentence as ordered by the
learned SCJ. We now give our reasons.
F
[5] At the hearing before us, En Hisham Teh Poh Teik, learned
counsel for the appellant argued that the learned JC was wrong
in disturbing the sentence as ordered by the learned SCJ. He
submitted that the learned JC had misdirected himself, when he
failed to recognise that the learned SCJ had acted correctly when
G
he exercised his discretion to sentence the appellant the way he
did.
[6] The learned Deputy Public Prosecutor strongly argued
otherwise. She submitted that the order of the learned SCJ does
H not take into consideration the element of public interest as the
sentence meted out does not reflect the gravity of the offence to
show public disapproval and condemnation. The learned Deputy
Prosecutor further submitted that the sentence meted out failed to
serve as a warning and will not have a deterrent effect in combating
I crime of this nature.
144
[7] Sentencing is one of the most difficult part of the work of a A

judge. We can imagine the situation faced by the learned SCJ as
well as the learned JC in dealing with this particular case. Here is
a case, where a 19 years old boy together with a 13 years and 4
months old girl around midnight on 5 July 2010, “checked-in” to
a hotel to be together for a night. They had consensual sex. The B
next morning the boy sent the girl back home. The girl did not
complain to anybody. The matter only came to light on 19 July
2010 when the girl’s father happened to read the girl’s diary, where
she had indicated that she had sex with the appellant. Despite her
repeated denial to her father on the truth of what she had stated C
in her diary, her father lodged a police report against the appellant
on 27 July 2010.
[8] Upon being made known of the police report lodged against
him, the appellant surrendered himself to the police. The appellant D
was eventually charged in the Malacca Sessions Court.
Subsequently, after the prosecution had called the first witness ie,
the father of the victim, the appellant decided to plead guilty to
the charge. In his mitigation the court was informed that the
appellant was a first offender. There was no conceivable force, E
duress or premeditation on the part of the appellant when
committing the act. It was a consensual sex. The court was also
informed that the appellant is an accomplished sportsman: a bowler
who has achieved many successes in the sport. The appellant was
also supporting his family, as both the parents are unemployed. F
[9] The offence committed by the appellant was that of statutory
rape, ie, an offence of having sex outside marriage with a female
person under the age of sixteen with or without her consent. Thus,
the question is what would be the appropriate sentence that should
be imposed against the appellant. Section 376 of the Penal Code G
provides that “whoever commits rape shall be punished with

imprisonment for a term which may extend to twenty years and
shall also be liable to whipping”. However as stated earlier, the
learned SCJ decided not to impose the punishment as provided by
s. 376 of the Penal Code but instead resorted to the provisions H
of s. 294 of the CPC which reads as follows:

294. First offenders
(1) When any person has been convicted of any offence before
any Court if it appears to the Court that regard being had I
to the character, antecedents, age, health or mental condition
145
A of the offender or to the trivial nature of the offence or to

any extenuating circumstances under which the offence was
committed it is expedient that the offender be released on
probation of good conduct, the Court may, instead of
sentencing him at once to any punishment, direct that he be
released on his entering into a bond with or without sureties
B
and during such period as the Court may direct to appear
and receive judgment if and when called upon and in the
meantime to keep the peace and be of good behavior.
[10] In invoking the provisions of s. 294 of the CPC the learned

C SCJ was guided by the following court decisions:
(a) the case of Abdul Karim v. Regina [1954] 1 LNS 3, which,
inter alia, says that in matter of punishment:
... the particular offence and the particular offender, are the
D concern of the court, whose business is to decide what
punishment is merited upon the facts of the individual case
within the limits the legislative has provided ...
(b) the case of Mohamad Arfah Jasmi v. PP [2008] 7 CLJ 836,
where the High Court recognised that “... rape among
E teenagers is a social problem and must be addressed though
religious and/or moral education by parents and authorities and
imprisonment of offender will only add to further social
problem”.
F [11] The learned SCJ also sought guidance from the case of PP
v. Yeong Yin Choy [1976] 1 LNS 119 on the pre-conditions to be
satisfied when resorting to s. 294 of the CPC and went on to
consider the following:
(a) that though he is free on bond the conviction is a registered
G offence and can be taken into consideration in future offences;
(b) the appellant was 19 years old at the time of the offence and
20 years old at the time of his plea;
(c) that there was consent between the parties; and
H
(d) that the appellant had pleaded guilty and was remorseful.
[12] The learned SCJ also took cognizance of the recent decisions
by both the Malacca High Court and Muar High Court on s. 294
of the CPC. In his judgment he said:
I
146
Mahkamah in juga telah menimbangkan nas duluan di mana bagi A

kesalahan yang sama yang melibatkan rogol bawah 16 tahun
secara suka sama suka, Mahkamah ada menjatuhkan hukuman
bon berkelakuan baik di bawah seksyen 294 KAJ. Dalam kes
yang tidak dilaporkan iaitu Dalam Mahkamah Tinggi Melaka,
Rayuan Jenayah No: 42H-3-2011, Pendakwa Raya v. Yeo Tian Su
B
dan Rayuan Jenayah No: 42H-91-2010 Pendakwa Raya v.
Muhammad Irwan bin Zakariah, pendakwaan tidak meneruskan
rayuannya terhadap hukuman yang dijatuhkan oleh Mahkamah ini
dan dapatlah disimpulkan pendakwaan berpuas hati dengan
hukuman yang dijatuhkan di bawah seksyen 294 Kanun Acara
Jenayah. Mahkamah ini juga merujuk kes yang tidak dilaporkan C
iaitu Dalam Mahkamah Tinggi Muar, Rayuan Jenayah No: 42A-
C-7-2010, Gan Heng Kwang v. Pendakwa Raya di mana hukuman
penjara 7 tahun telah diketepikan oleh YA Dato’ Ahmad bin Haji
Asnawi H dan digantikan dengan hukuman bon jaminan
berkelakuan baik di bawah seksyen 294 Kanun Acara Jenayah
D
selama 3 tahun dengan wang jaminan sebanyak RM10,000.00
dengan seorang penjamin.
[13] Lastly, the learned SCJ was fully aware and he made it
known to the appellant that based on Jayanthan v. PP [1973] 1
LNS 56 in the event the appellant fails to observe the conditions E
of the bond he would be arrested and dealt forthwith for the
original offence.
[14] The learned JC in setting aside the sentence imposed by the
learned SCJ was primarily concerned with the element of public
F
interest. In his judgment, he said as follows:
Dalam konteks kes ini saya berpendapat bahawa Tuan Hakim
Mahkamah Sesyen telah khilaf apabila lebih memberatkan
kepentingan OKT daripada kepentingan awam berdasarkan alasan-
alasan berikut: G
(i) OKT berumur 20 tahun semasa pengakuan salah direkodkan.
Kesalahan di bawah s. 376 Kanun Keseksaan adalah serius.
Justeru hukuman yang bersesuaian adalah hukuman penjara.
(Rujuk kes PP v. Loo Choon Fatt [1976] 2 MLJ 256, PP v.
Yap Huat Heng [1985] 2 MLJ 414, Koey Teng Soon & Anor H
v. PP [2000] 2 AMR 1357, [2000] 2 MLJ 129, PP v.
Sharithan a/l Pachemuthu [1999] 4 AMR 4619, [2000] 2
MLJ 368).
(ii) Mangsa berumur 13 tahun semasa kejadian. Pada umur
sebegini mangsa belum dapat membezakan antara baik dan I
buruk untuk masa hadapannya. Sebagai seorang yang
dikategorikan di bawah definisi kanak-kanak, kehidupannya
lebih ke arah fantasi jika dibandingkan dengan realiti.
147
A (iii) OKT mengambil kesempatan sebagai seorang ahli sukan

bowling yang berjasa kepada negeri dan dikenali ramai untuk
menggoda mangsa. Menjadi seorang yang terkenal bukanlah
bermakna OKT diberikan lesen untuk melakukan jenayah
dengan sewenang-wenangnya (Lai Kim Hon & Ors v. PP
[1981] 1 MLJ 84, PP v. Vijaya Raj [1981] 1 MLJ 43).
B
(iv) Kesalahan pertama tidak memadai untuk mendapat
pengurangan hukuman (rujuk kes PP v. Khairuddin [1982] 1
MLJ 331, Bhandulananda Jayatilake v. PP [1982] 1 MLJ
83).
C (v) Walaupun tiada statistik dikemukakan bagi kes-kes rogol
yang melibatkan remaja, namun kekerapan kesalahan ini
hampir setiap hari dilaporkan dalam media cetak. Jika
hukuman ringan diberikan maka sudah tentunya ianya tidak
akan membantu mencegah berbagai kesalahan yang
melibatkan remaja. (Rujuk kes Ismail Rasid v. PP [1999] 4
D
CLJ 402; [1999] 4 AMR 4541, PP v. Yeoh Eng Khuan
[1976] 1 MLJ 238).
Berdasarkan alasan-alasan di atas saya berpendapat bahawa
mitigasi OKT tidak memenuhi prasyarat yang digariskan dalam
kes PP v. Yeong Lim Choy [1976] 1 LNS 119 untuk membolehkan
E
seksyen 294 KPJ diguna pakai. Justeru, saya memutuskan untuk
mengetepikan perintah BON berkelakuan baik dengan jaminan
RM25,000.00 tanpa cagaran dan seorang penjamin bagi tempoh
lima (5) tahun di bawah seksyen 294 KPJ dan digantikan dengan
hukuman 5 tahun dari tarikh hari ini.
F
[15] The issue before us was whether the learned JC was right
in interfering with the sentence passed by the learned SCJ. It is
trite that an appellate court, in this case the High Court, “should
be slow to interfere or disturb with a sentence passed by the court
below unless it is manifestly wrong in the sense of being illegal or
G
of being unsuitable to the proved facts and circumstances. And the
mere fact that another court might pass a different sentence
provides no reason for the appellate court to interfere if the court
below applies the correct principle in the assessment of the
sentence”. (See PP v. Mohamed Nor & Ors [1985] 1 LNS 25)
H
[16] In the instant case, we are of the view that the learned JC
was wrong to interfere with the sentence imposed by the learned
SCJ. Upon perusing the grounds of judgment of the learned SCJ
we found that he had applied the correct principles in making the
I orders under s. 294 of the CPC. He took into consideration all
relevant factors including the element of public interest, the fact
148
that it was consensual, that the offender had pleaded guilty and A
was extremely remorseful of what he had done, that he was a
youthful offender and the fact that it was a registrable offence.
[17] As stated earlier, the learned JC in substituting the sentence
with five years imprisonment was concerned that cases of statutory B
rape involving teenagers are common occurrence. According to him,
if a light sentence is imposed, it will not have a deterrent effect in
combating crime of this nature. We are equally concerned, especially
in this case where the victim at the time of the offence was only
13 years and 4 months of age. But the appellant was not very C
much older than the victim. Both were teenagers. They both made
a mistake in engaging in premarital sex. No doubt, the appellant
had committed an offence, but should custodial sentence be the
only safeguard into ensuring similar offences of consensual sex
among teenagers will not happen? D
[18] In this aspect we are inclined to agree with what was
expressed by Hamid Sultan Abu Backer JC (as he then was) in
PP v. Mohamad Arfah Jasmi [2008] 7 CLJ 836 that the safeguard
into ensuring similar offences of consensual sex among teenagers
will not happen, starts at home and in school. At home where E
parents should impose discipline and religious knowledge to ensure
that teenagers would not put themselves in situations which will
bring about this kind of offence and in school where sex education
can be taught so that both girls and boys are aware of the dire
consequences of engaging in premarital sex. F
[19] The next question is: must all these teenagers who commit
similar offence as the appellant be punished with imprisonment? It
is a well accepted principle of sentencing that young offenders,
wherever possible and depending on the nature of the offences G
committed, should be kept out of prison, especially when there are
other adequate means of dealing with them. Bellamy J in Tukiran
Taib v. PP [1955] 1 LNS 166, held that:
It is desirable that young offenders, that is, offenders between the
ages of 17 and 21, who are also first offenders should be kept H
out of prison, if possible.
The pronouncement made by Bellamy J in Tukiran Taib v. Public

Prosecutor (supra), albeit made in 1955 has become the guiding
principle for courts in exercising its discretion when assessing the I
149
A appropriate sentence for young offenders. There is a plethora of

authorities stemming from our courts against sending young and/
or first offenders to the prison. (see Teoh Ah Kow v. PP [1960] 1
LNS 140; PP v. Tan King Hua [1965] 1 LNS 141; Lim Yoon Fah
v. PP [1970] 1 LNS 66; PP v. Yeong Yin Choy [1976] 1 LNS 119;
B Teo Siew Peng & Ors v. PP [1984] 1 LNS 71; PP v. Mohamed Nor
& Ors [1985] 1 LNS 25; PP v. Lim Hong Chin [1994]
1 CLJ 79 and Lai Sing Ming v. PP [1995] 1 LNS 106; and Winston
Rajah v. PP [1998] 1 LNS 54.
C
[20] In the instant appeal, the appellant is not only a young
offender, but also a first offender and considering the nature of the
offence and how it was committed and the other extenuating
circumstances, the learned SCJ was right in exercising his discretion
in not sentencing the appellant to prison but instead subjected him
D
to an order under s. 294 of the CPC.
[21] At this juncture, we would like to clarify the misconception
on the applicability of s. 294 of the CPC. We would like to point
out that the orders made under s. 294 of the CPC do not
exonerate the person of the offence that he had committed. The
E person is in fact convicted of the offence and the conviction will
be recorded and will form part of the person’s criminal record and
will remain there for the rest of that person’s life. The effect of
such an order was clearly spelled out in the case of Jayanthan v.
PP [1973] 1 LNS 56, wherein Ong Hock Sim FJ held that:
F
This section vests the Court before which a person is convicted
with power to suspend sentence for such period as the Court may
direct, and, if the offender behaves himself during such period, he
would escape punishment for his offence. If he fails to observe
the conditions of his bond, he would be liable to be apprehended
G and dealt with for his original offence.
[22] Thus, in the instant case, the appellant was in effect given a
suspended prison sentence. He has to behave himself for a period
of five years. If he behaves himself during the five years period,
H he would escape punishment for his offence. But if he fails to
observe the conditions of his bond, he will then be arrested and
dealt with for the original offence of rape. Like the learned SCJ,
we are hopeful that the suspended sentence would give the
appellant another chance in life and that he will “turn over a new
I leaf”. If the order of the suspended prison sentence has the effect
of rehabilitating him, then public interest has indeed been served
and best served.
150
[23] For completeness, we would like to add a proviso to our A

decision: that whatever sentence to be imposed on this type of
cases must be based on the facts of each individual case. Each
case depends on its own facts and it is neither feasible nor desirable
to attempt to lay down any fixed sentence that is meant to govern
this type of cases. Therefore, these observations made by this court B
should not be misconstrued as intending to have blanket application
or applying to all cases involving young offenders charged with the
similar offence as the appellant herein.
[24] In the present case, if the appellant had been older, or he C
had used force, coercion or violence on the victim, or he had
tricked the victim into submitting to him or he had not cooperated
with the police and he had not shown any remorse to his act or
there is no guarantee that he will not be committing the same
offence in the future, we would not have any hesitation, as we D
have done in many other cases of similar nature, to impose a
lengthy custodial sentence. But before us is a young boy who was
extremely remorseful for what he had done and had thrown himself
to the mercy of the court by pleading guilty to the charge.
[25] The learned SCJ, based on the facts and circumstances of E
the case, instead of sentencing the appellant at once to any
punishment, directed him to be placed on a bond under s. 294 of
the CPC. The learned JC disagreed, but the mere fact that he
wanted to pass a different sentence provides no reason for him to
interfere, when it is clear that the learned SCJ had applied the F
correct principles in the assessment of the sentence.
[26] It is for the above stated reasons we allow the appellant’s
appeal. Consequently, the orders made by the learned JC were set
aside and we reinstated the orders made by the learned SCJ. G

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DALAM MAHKAMAH TINGGI MALAYA DI IPOH

MUHAMAD HAKIMI …PERAYU

IKATAN AUTORITI PERAYU

TETUAN DHARMA & CO

NO. AKTA/KES LAMPIRAN MUKA SURAT

1. Seksyen 173 (h) (iii) Kanun Tatacara 1 1-3

2. PP V. MOHD RADZI BIN ABU BAKAR 2 4-24

3. LOOI KOW CHAI & ANOR V. PP [2003] 3 25-48

4. Seksyen 173(f)(i) dan (ii) Kanun 4 49-51

5. PP v. Mohamad Malek Ridhzuan Che 5 52-83

6. Alaggandiran Vellu v. PP [2010] 4 CLJ 6 84-92

7. Yap Sing Hock & Anor v. PP [1992] 4 7 93-108

8. TENGKU MAHMOOD v. PUBLIC 8 109-112

9. Tukiran Bin Taib v. Public Prosecutor 9 113-114

10. Public Prosecuter v Mohamad Arfah 10 115-127

11. PP v. Nazarudin Ahmad & Ors [1993] 2 11 128-135

12. Abdul Karim v. Regina [1954] 1 LNS 3; 12 136-137

13. Nor Afizal Azizan v PP [2012] 6 CLJ 370 13 138-150

CRIMINAL PROCEDURE CODE (REVISED 1999)

The following procedure shall be observed by Magistrates in summary trials:

[Ins. by Act A1274]

(i) to give sworn evidence in the witness box;

(ii) to give unsworn statement from the dock;

(iii) to remain silent.

[Proviso (m)(ii) Subs. by Act A1422]

[Am. by Act A979]

EDITORIAL COMMENTS AND ANNOTATIONS

On the usage of handcuffs

procedure under s 173(b)

Refer also to Public Prosecutor v. Tengku Hitam [1962] 1 MLRH 108 :

MOHD RADZI ABU BAKAR

CONSTITUTIONAL LAW: Courts - Appeals - Whether an appellate

CONSTITUTIONAL LAW: Courts - Judicial power - Whether

CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 37(da) -

E CRIMINAL PROCEDURE: Prosecution - Prima facie case -

On 20 December 1991, several Customs personnel attempted to

The learned judge had convicted the respondent on the basis of A

The majority of the Court of Appeal held that this approach to C

[1] Mengenai isu penguatkuasaan kebelakangan keputusan kes

A Per Abdul Malek Ahmad FCJ:

[1] Unless there is a prospective ruling, any decision will also

Per Gopal Sri Ram JCA (dismissing the appeal and

[1] Arulpragasan Sandaraju v. Public Prosecutor is authority for the

[3] If the court, upon a maximum evaluation of the evidence A

[4] Where the prosecution seeks to prove trafficking by relying on D

[5] The declaration of the common law by a superior court

[7] It is settled law that it is no part of the function of an I

A necessarily fettered because it lacks the audio-visual advantage

I [Appeal from Court of Appeal; Criminal Appeal No: R-05-3-94]

Reported by Amutha Suppayah

Ahmad Fairuz PMR:

[1] Saya telah membaca draf-draf penghakiman YAA Tan Sri

[2] Mengenai isu penguatkuasaan kebelakangan keputusan kes

Abdul Malek Ahmad FCJ: E

[3] I have read the judgment in draft of my learned brother

[5] In Abdillah bin Lobo Khan v. PP [2002] 3 CLJ 521, the

The Federal Court could, therefore, if it had so wished, have

In England this doctrine has been recognised by the House of

At the conclusion of argument on March 19, 1987, the Court A

[7] The principle enunciated in Public Prosecutor v. Dato’ Yap C

Gopal Sri Ram JCA:

[8] The respondent before us was charged with an offence of E

prosecution being dissatisfied with the decision appealed to this