LAW611-CRIMINAL PROCEDURE CODE II

ASSIGNMENT 2

CLASS:
LWH08D

PREPARED BY:
FIRM 1

NAME STUDENT ID

Wan Miskiah Wan Mahmood 2020978493

Muhammad Asyraf Muhammad Dimyati 2020978511

Muhammad Iman Haiqal Tahiruddin 2019811068

Raja Nur Athirah Raja Arshad 2020988283

Nurhanan Maisarah Mohd Lotfi 2019847818

PREPARED FOR:
MAZLIFAH BINTI MANSOOR

SUBMISSION:
24 JANUARY 2024
QUESTION (a)
The issue is whether Mars passes sentence on Kopi in accordance with judicial
principles.
The first sub-issue is whether Kopi’s plea of guilty entitles him to any leniency.
According to section 172G of Criminal Procedure Code (CPC), the general rule is where an
accused pleads guilty at any time before the commencement of his trial, the Court shall
sentence the accused in accordance with subparagraph 172D(1)(c)(ii). In Pendakwa Raya
lwn Teoh Guan Hoe [2003] 6 AMR 489 at 490, the plea should be made at the first available
opportunity to be a mitigating factor that carries weight. In another case of PP v Kanadasan
a/l Sankaran [2010] 1 MLJ 297, it was held that a plea advanced late in the trial ceases to
have mitigating effect.
Currently, Kopi pleaded guilty during the trial before Mars in relation to his offence
on 13 May 2023. In order for Kopi to be granted a leniency, he should plead it at the first
available opportunity which is on 27 May 2023 and onwards but before the commencement
of his trial. However, he did not plead guilty before the commencement of his trial hence
based on above cases, his sentence could not have a mitigatory effect. Mars, nevertheless,
accepted the plea of guilt of Kopi and granted him a lenient sentence.
In conclusion, Mars did not follow the judicial principle of passing sentence where he
did not consider the late plea of guilty of Kopi which does not carry a mitigatory effect to a
lenient sentence.
The second sub-issue is whether previous conviction of the accused can serve as
mitigating factors to a lenient punishment provided that it fulfills the two requirements of (i)
similar nature of offence and (ii) gap principle. As illustrated in the case of Zaidon Shariff v
PP [1976] 4 CLJ 441, it is stated that a previous conviction is to be taken into consideration
only if it is of a similar nature to the current charge and there has been a five year gap in the
appellant’s crime record.
In application, Kopi has a previous conviction for an offence under s.354 and he is
also currently charged with s.354. This is obvious that the previous conviction is of similar
nature to the current charge of Kopi as he is charged under the same provision. The first
requirement is thus fulfilled. Next, the previous conviction of Kopi was in 2010 and the
current charge is in 2023. Applying the gap principle, the previous conviction of Kopi has
been more than 5 years, or 13 years to be exact. Based on Zaidon’s case, the longer the gap,
the greater the mitigatory effect on the sentence. Since both requirements are fulfilled, Kopi
is entitled to a leniency.

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 Therefore, Mars has followed the judicial principle on considering the previous
conviction which fulfilled the elements of similar nature and gap principle of Kopi.
Thus, Mars has breached the judicial principle on passing sentences against Kopi
without considering the aggravating factors of public interest and rampancy.
The third sub-issue is whether the sentences passed by Mars against Kopi need to run
consecutively or concurrently. In Yit Kean Hong v PP [2005] 4 CLJ 592, generally sentences
should be consecutive. However, sentences could be concurrent when the offence is done in a
single transaction as illustrated in Amrita Lal Hazra v Emperor [1915] 42 Cal 957 where
four elements needed to be fulfilled namely; the offence is committed within the proximity of
time and place, there is a continuity of action and purpose.
Firstly, for the element of proximity of place, since both offences were committed in
the same place which was at a desolated area in Kayangan Park Shah Alam, the element of
proximity of place is fulfilled. Secondly, the element of proximity of time, it is stated in the
facts that after fondled Anje’s bosom, Kopi further satiated himself by fondling Bebi’s private
part. Although the specific time is unknown, it can be seen that there is definitely a proximity
of time between both offences since it was committed at the same time on 13 May 2023.
Thirdly, is the element of continuity of action, where it is not fulfilled when Kopi committed
the offence on two different persons. In the case of Haji Johari bin Haji Karim v PP [1989]
2 MLJ 27, the single transaction principle will lapsed when the offence is committed onto
two different persons. Since continuity of action must be between the same person, there is
no continuity of action because after Kopi fondled Anje’s bosom, he continued to fondle
Bebi’s private parts. Lastly, there is no continuity of purpose because the purpose of the
offence committed against Anje lapsed when Kopi continued to molest Bebi afterwards. As
the elements of a single transaction are not fulfilled, the sentence does not fall under the
exception to the general rule in which it could be concurrent.
Hence, Mars has not followed the judicial principles in passing sentences against
Kopi when he passed sentences on Kopi and to run it concurrently where it should be
consecutively.
All in all, Mars passed sentence on Kopi not in accordance with judicial principle.
QUESTION (b)
In determining the severity of the sentence, I, as Venus, must consider a few
mitigating and aggravating factors. The first factor is regarding the legality of Teh’s plea of
guilt. Referring to s.172G of CPC, an accused person may plead guilty at any time before the
commencement of his trial and the Court shall sentence him in accordance with subparagraph

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172D(1)(c)(ii). However, leniency shall not be applicable when the offence committed is a
sexual-related offence for the as per section 172D(3) of CPC. The plea of guilt ceases its
mitigating factor for the accused when it was not made at the earliest opportunity as to the
case of PP v Kanadasan a/l Sankaran [2010] 1 MLJ 297.
Here, Teh had pleaded guilty after the commencement of trial which was after Bebi
had given her testimony on 30 August 2023 hence, Teh is not entitled for leniency of
sentence. As Venus, I will not consider his plea of guilt as a mitigating factor as Teh had
committed an offence under s.354 of PC where it is a sexual related offence against Anje.
Thus, looking at the offence committed by Teh and the late pleading of guilt, Teh is
not entitled to leniency for a lighter punishment.
The second factor is Teh’s previous convictions on theft. In determining whether
Teh’s previous conviction entitles him for leniency, two requirements as per Zaidon Shariff v
PP [1974] 4 CLJ 441 case must be fulfilled which are there is a similar nature in offence and
the time gap between the current offence and the previous conviction was committed (gap
principle) whereby the longer the gap between the offence, the higher the mitigatory effect it
serves the accused.
Firstly, Teh had indeed committed offences which are similar in nature as he was
previously convicted and sentenced for the theft as he was released in December 2022. On 20
May 2023, Teh had committed theft against Anje and Bebi by stealing their gold bracelet and
watch respectively. Both offences are similar in nature as his previous conviction and his
current conviction which are theft.
Secondly, since there is a small gap between the release of Teh from his imprisonment
for theft and his current charge for theft which is a 5 months gap. Teh was released for the
previous offence in December 2022 and was charged for present offence in May 2023. The
gap between the day he was released and the day he was charged is only 5 months which is
less than five years. Therefore, Teh is not entitled to leniency as he had failed the test of gap
principle.
Hence, Teh is not entitled for leniency as he has a previous conviction for the offence
of theft.
The third factor, whether a serious offence shall affect the leniency of sentence
against Teh. Once an offender has pleaded guilty, he is entitled for leniency. However, the
offence committed against Anje which is under s.354 of PC. Despite Teh do not have any
previous conviction for s.354, he is not entitled for leniency. This is because the offence
under s. 354 is a serious offence and it is highly linked to the public’s interest. It is becoming

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more severe as the victim of the offence is a 14 year old girl. As to the case of PP v Ali bin
Ahmad [2019] 11 MLJ 485, the court had taken into consideration s.354 as a serious offence
and the public’s interest hence had retained the decision made by the previous judge by
stating that the punishment given must be in accordance with the offence committed.
Therefore, Teh is not entitled for leniency due to the serious offence committed by
him.
The fourth factor is whether the sentences against Anje and Bebi should run
consecutively or concurrently. Generally, any sentence shall be consecutively but when the
crime is done in a single transaction, it shall be run concurrently. Referring to the case of
Amrita Lal Hazra v Emperor [1915] 42 Cal 957, when the offence is committed within the
proximity of time and place, and there is a continuity of purpose and action, it can be said that
a single transaction offence has been established.
As Venus, I shall sentence Teh for offences committed on 20 May 2023 that outrage
Anje’s modesty and theft of her gold bracelet to be run concurrently. Using the test for a
single transaction offence, both offences were committed at the same place which is at
Kayangan Park. Next, both offences also have a proximity of time as it can be assumed that
both were done within the same day on 20th of May 2023. Further, there is a continuity of
action as Teh had took Anje’s gold bracelet right after Teh had outraged her modesty which is
still committed against the same person. As for the element for continuity of purpose, it is
fulfilled as both offences were committed against the same victim. Therefore, the sentence
should run concurrently as both offences against Anje are done in a single transaction.
As for the offence against Anje and Bebi, it did not fall under a single transaction as
there are two victims which can be seen in the case of Yit Kean Hong [2005] 4 CLJ 592,
where the court decided that 2 victims does not amount to a single transaction offence.
Hence, I shall sentence Teh with the offences committed against Anje and Bebi to be carried
out consecutively.
Therefore, the sentence against Anje shall be carried out concurrently but the
sentences against Anje and Bebi shall be carried out consecutively.
The last factor, whether the date of commencement of sentence for Teh shall start on
his date of arrest. Referring to s.282(d) of CPC, every sentence of imprisonment shall take
effect from the date on which it was passed unless the Court had directed otherwise. In PP v
Sinniah Pillay, although 3 years had passed where the appellant was in remand centre, his
imprisonment could not be backdated due to the offence he committed was a serious one. As
Teh had committed a serious crime involving minors, the sentences cannot be backdated as to

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s.282(d) and the ruling in the Sinniah Pillay case. Hence, this sentence shall commence at the
date this sentence was passed.
In conclusion, I, as Venus, shall not agree to a lenient sentence on Teh because all the
mitigating factors presented are not fulfilled. I have considered that Teh pleaded guilty after
the commencement of trial which does not entitle him to a leniency, Teh also has a previous
conviction which does not serve as mitigating factor and the offence committed by Teh were
serious offences so it is appropriate to pass sentence which run consecutively and it shall
commence at the date of sentence passed.
QUESTION (c)
● “I sentence you, to 16 years of imprisonment and 6 strokes of whipping for raping
Anje and 11 years of imprisonment and 4 strokes of whipping for sodomising her,
sentences to run consecutively.
● Next, I sentence you to 16 years of imprisonment and 6 strokes of whipping for raping
Bebi with sentence to run concurrently with the sentence passed in respect of the
offences against Anje.
● Sentence is to commence from the date of arrest”.
The reasons for my sentence are as follows. Firstly, I look at the offence committed.
Kopi had committed two types of offences which are the offence of rape against Anje and
Bebi which are punishable under s.376 (2) of the Penal Code (PC) and the offence of carnal
intercourse against the order of nature against Anje which is punishable under s.377C of PC.
Secondly, I have considered the aggravating and mitigating factors. The first
aggravating factor is that of public interest. Since both Anje and Bebi are minors below 18
years old, this matter would be in the best interest of the public and harsher sentences should
be considered to prevent outrage of the society. The second aggravating factor would be the
seriousness of the case. The case of statutory rape of a minor is a serious offence, Kopi had
committed statutory rape on both minors Anje and Bebi and also had committed sodomy
against Anje. Other than that, all two offences carry maximum punishment up to 20 and 30
years which shows the seriousness of the offence. The third aggravating factor is the impact
on both victims psychologically. This is because they were taken advantage of by Kopi to
commit sexual intercourse, it would affect their mental health as they grow up as adults.
The only mitigating factor that I considered is Kopi’s previous conviction whereby it
was committed 13 years ago in 2010 for the offence of outrage of modesty. His previous
conviction gives a mitigating factor as he had clean records for the last 13 years until the
present offence. This can be supported with the case of PP v Tia Ah Long [2000] 5 MLJ 401,

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whereby a previous conviction will be disregarded as an aggravating factor if it happened a
long time ago and is unrelated to the present offence. Hence, in deciding the proper sentence
against Kopi it is reasonable for the punishment to be more deterrent as there are more
aggravating factors compared to mitigating factors.
Thirdly, I look at the punishment and the quantum appropriate for the sentencing. In
s.376 (2) of PC, the person shall be punished with imprisonment for a term of not less than 10
years and not more than 30 years and shall also be liable to whipping. Whereas in s.377C of
PC, the person shall be punished with imprisonment for a term of not less than 5 years and
not more than 20 years, and shall also be liable to whipping. In deciding the quantum of
punishment for imprisonment, I have referred to Kesavan Senderan v PP [1999] 1 CLJ 343
whereby depending on the gravity of the offence, a sentence of 40% to 50% of the maximum
sentence would be an appropriate median point. I decided that more than 50% median point
based on how aggravating the offence was committed. Therefore, the median point for s.376
(2) of PC is 16 years of imprisonment whereas the median point for s.377C of PC is 11
years of imprisonment.
Next, in deciding for whipping, s.289 of CPC provides that the punishment of
whipping is forbidden against male more than 50 years old except for the offence of s. 376
PC. Kopi is convicted under s. 376 PC he can still be sentenced to whipping despite his age.
Next, since there are no specific amount of whipping imposed in both sections, I shall
imposed a sentence of whipping of 6 strokes for the rape of Anje and Bebi and 4 strokes of
whipping for the sodomy of Anje. I was guided with the case of Lew Kim Leong (1989) 3
MLJ 323, whereby in this case, the court held that rape contains depravity and more so on
double rape which Kopi had committed. A harsher sentence should be considered to
commensurate the gravity of the offence. Hence, it is appropriate for the sentence of
whipping as stated above.
Fourthly, I look into whether the sentence should be consecutive or concurrent. The
general rule in passing sentences, the sentence must be passed consecutively as stated in Yit
Kean Hong v PP [2005] 4 CLJ 592. However, there is an exception where it could be
concurrent which is the same transaction principle .
In Amrita Lal Hazra v Emperor [1915] 42 Cal 957, there are four elements to fulfil
to show that the action is of the same transaction. First, I shall look into the offence of rape
and sodomy against Anje. The first element, there must be a proximity of time. In this case,
the offence of rape and sodomy against Anje was committed on the same day which is on
20th of May 2023, the action was within the same day and therefore there is a proximity of

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time. Hence, fulfilled. Secondly, proximity of place. The offence of rape and sodomy of Anje
was committed at the same place which is desolated area in Kayangan Park Shah Alam.
Hence, the second element is fulfilled. Third, there must be continuity of action. In this case,
there is a continuity of action whereby after Kopi had raped Anje, he continued to
sodomise her. These actions of penetration are proximate with each other, hence, fulfilling
the third element. Fourth, there must be a continuity of purpose. In this situation, both offence
of raping and sodomy had the same design of offence and served the same purpose which is
the sexual assault on Anje. Hence, the fourth element is fulfilled. Therefore, offences against
Anje shall be run concurrently.
Next, for the rape of Bebi, for the first element of proximity of time, there is a
proximity of time since the rape against Bebi was within the same day which is on 20th May
2023. Hence, fulfilled. For the second element, there is a proximity of place as the rape
committed against Bebi was at the same place which is at the desolated area in Kayangan
Park Shah Alam. Hence, the second element is fulfilled. For the third element, there is no
continuity of action for Bebi as after she was rape by Kopi, Kopi had continue sodomise
Anje. This shows that there is no continuity of action against Bebi as the action was against
a different person. In Haji Johari bin Haji Karim v PP [1989] 2 MLJ 27, the same
transaction principle shall lapsed when the offence is committed at a different victim, hence,
the third element is not fulfilled. For the fourth element, there is no continuity of purpose
when the purpose has shifted from sexual assaulting Bebi he then when to Anje to sodomise
her. This shows that the continuity of purpose has lapsed and the fourth element is not
fulfilled. In conclusion, the same transaction is not fulfilled and for offence against Bebi, it
shall run consecutively.
Fifthly, I also look at the totality principle. The charge against Anje would be 16 years
of imprisonment for raping and 11 years of imprisonment for sodomy since it shall be passed
concurrently whereas the charge against Bebi, the sentence would be another 16 years of
imprisonment. Totalling all sentences, it would be 32 years of imprisonment. Next, for the
sentence of whipping, for the charge against Anje, it would be 6 strokes of whipping for
raping and 4 strokes of whipping for sodomy whereas for Bebi, the sentence would be
another 6 strokes of whipping. Adding both sentences, it would be 16 strokes of whipping.
In totality principle, we must look whether the total amount of sentences would have a
crushing effect against Kopi. This can be seen in Mansor bin Menyon v PP [2007] 8 MLJ
706, A cumulative sentence may offend the totality principle if the aggregate sentence is

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substantially above the normal level of sentences for the most serious of the individual
offences involved.
Since Kopi is 50 years old, a 32 years imprisonment and 16 strokes of whipping
would be a crushing effect against him as he would be 82 years old and cannot have the time
to repent. Hence, I decided that for the offence against Bebi, Kopi should be sentenced to 16
years of imprisonment and 6 strokes of whipping where the sentences shall run concurrently
with the sentence passed in respect of offence against Anje.
Lastly, I look at the appropriate date of commencement. In s.282(d) of CPC, the
general rule that every imprisonment sentence shall take effect from the date the sentence
passed unless otherwise directed. In Iman Sahedon [1989], the court states that if the judge
did not consider the period of time spent in remand in determining the length of the
sentence, the sentence may be ordered to take effect from the date of arrest. Hence, it is
better to pass the sentence at the date of the arrest. Hence, the sentence shall commence on
the date of Kopi’s arrest.
In conclusion, based on the reasons above, I decided to pass such a sentence.
QUESTION (d)
The first ground of appeal is whether holding of a view conducted by Venus is in
accordance with the procedure. Holding of a view does not help the court settle the major
issues of the case, rather, it helps the court follow and appreciate the evidence. Nevertheless,
holding of view is permitted so long the procedure is complied with as stipulated in PP v
Sarjit Kaur [1998] 1 MLJ 184.
Firstly, Venus had visited the crime scene alone during his spare time. In reference to
the procedure in the Sarjit Kaur case, Venus failed to comply with the procedures laid down
in conducting the view when he went alone and failed to bring Kopi with him during holding
the view. Secondly, the whole court should be adjourned to view the place, however, Venus
visited the crime scene during his spare time which violates the procedure provided. In
Harban Singh v R [1954] MLJ 158, Venus’s action of conducting the view alone, during his
spare time, violated the principle of justice since he had prejudiced Kopi by holding the view
behind his back. Thirdly, as per in Dabal B Anding v PP [1994] 2 CLJ 383, Venus has failed
to comply with the principle of law whereby Venus states that the certain doubts that he had
was erased by his findings at the crime scene which in fact holding of view is done only to
understand evidence laid down to the Court, not to investigate the crime scene. This shows
that Venus placed himself as an investigator rather than a judge when he relied on his
personal knowledge that he found at the crime scene and related it to the judgement of the

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case. Therefore, Venus had failed to comply with the procedures and principle of law in
holding a view as he held holding of view alone during his spare time and he had relied on
his investigation to determine whether Kopi was guilty or not of the offences charged against
him.
Therefore, one of the grounds of appeal is that Venus had erred in conducting the view
as it was not made in accordance with guidelines provided by the law.
The second ground of appeal is whether Venus has wrongly applied the standard of
proof in convicting Kopi. In accordance with Section 173(m)(i) of CPC, the court must
evaluate all evidence presented at the conclusion of the trial to ascertain whether the
prosecution has proven the accused person's guilt beyond a reasonable doubt. Under the
aforementioned rule, the court may order an acquittal if it is not convinced or if there is a
reasonable doubt as to the accused's guilt that the prosecution has failed to prove. The
principle is used in the case of Mat v PP [1963] 1 MLJ 283, where if the court is convinced
that the accused has not established his innocence, the accused will still be entitled to an
acquittal provided that there is a reasonable doubt as to his guilt.
In this case, despite being presented with evidence by the prosecution, Venus in his
judgement was still in doubt of whether or not the offences were committed by Kopi. This
can be seen when Venus further investigates the offence by holding a view to erase the doubt
which is unlawful with the law whereby Venus should acquit Kopi if Venus still in doubtful
when all evidence has been presented as per Arulpragasan a/l Sandaraju v PP [1997] 1 MLJ
1. This means that the prosecution has failed to satisfy the burden of proof against Kopi and
Kopi shall be entitled to an acquittal since there is a reasonable doubt as to the guilt of Kopi
as per principle used in the case of Mat v PP.
Further, applying Venus’s statement which he has a doubt and it was erased by his
unlawful holding of a view, the conviction against Kopi shows that it was not made by
considering all evidence adduced at the end of the trial by the parties, rather it was due to his
own investigation. This concludes that Venus failed to determine whether the prosecution has
established the case beyond reasonable doubt to believe the guilt of the accused person as per
Section 173 (m)(i) of CPC.
Succinctly, the second grounds of appeal is that Venus had erred in applying the
standard of proof in convicting Kopi.
The third ground is the learned judge had erred in recalling Dr Kemist to adduce
further evidence. According to Section 425 of the CPC, any court may at any stage of the
trial summon any person as a witness, or examine any person in attendance, or recall and

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re-examine any person already examined, if his evidence appears to the court to be essential
to the just decision of the case. This was supported by the case of Ramli bin Kechik v PP
[1986] 2 MLJ 33, the prosecution and defence may call upon a witness to tender additional
evidence under s 425.
In this case, the application was made by the prosecution to recall Dr. Kemist after the
closing of the prosecution case.
Next, with regards to the principles governing adducing further evidence after the
close of PP’s case, Venus may exercise its discretion to summon Dr Kemist or any person as a
witness after DPP Tom closed its case provided that it is not thereby prejudiced and it appears
to be essential to a just decision of the case. As stipulated in PP v Abdul Hamid [1969] 1
MLJ 53, the court shall not call any witness at the close of the case of any party unless there
is strong and valid reason. The nature of the evidence is ‘essential to a just decision’ when the
evidence sought to be adduced by is of a formal or technical nature as seen in PP v Abdul
Rahim Abdul Satar [1990] 3 MLJ 188.
However, applying the principle in PP v Lin Lian Chen [1991] 1 MLJ 316, adducing
additional evidence is not permissible when it prejudices the accused and if the effect is to
repair the case. The act of PP Tom recalling Dr. Kemist in affirming that the semen belongs to
Kopi is considered to repair the case because, during the prosecution stage, Dr. Kemist and
Dr. Medik only confirmed the presence of semen in Anje's anus but did not identify its
source. This also allows the prosecution to repair their case and secure Kopi's conviction, as
the source of the semen was not identified by DPP Tom during the prosecution. This attempt
to rectify the failure to identify that the semen belongs to Kopi during the prosecution appears
to be more of an emergency repair. Therefore, the trial judge should not grant the leave made
by DPP Tom to recall Dr Kemist for adducing additional evidence as it will repair the case.
This is in line with PP v Sim Wei Der [2023] 9 CLJ 995 where no witness is allowed to be
called after closing of the prosecution’s case since it is unfair to allow for emergency repair to
any defects due to their lack of care.
In conclusion, the learned judge had erred in recalling Dr Kemist as it would unjustly
repair the prosecution's case.

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QUESTION (e)
IN THE HIGH COURT OF MALAYA AT SHAH ALAM
IN THE STATE OF SELANGOR DARUL EHSAN
CRIMINAL APPEAL NO: BA-32-55-01/2024

BETWEEN

KOPI …APPELLANT
[NRIC NO.: 730214-10-5321]

AND
PUBLIC PROSECUTOR …RESPONDENT

PETITION OF APPEAL

To the Honourable Judge Yang Arif

The Petition of Appeal of Kopi (NRIC No: 730214-10-5321)
Showeth as follows:

1. The Petitioner, the above-named Kopi, was charged with rape and sodomy under Section
376(2) and Section 377C of the Penal Code, respectively, and was convicted at the
Sessions Court of Shah Alam, Selangor, on the day of 1st of October 2023, and the
following order was made thereon that the Petitioner was found guilty by the learned
Sessions and has been sentenced to sixteen (16) years of imprisonment and six (6)
strokes of whipping for each of two separate charges for rape, that shall run concurrently
from the date they are passed. Further, the petitioner received a sentence of eleven (11)
years of imprisonment and four (4) strokes of whipping for sodomy with the sentence to
commence from the date of arrest.

2. The Petitioner is dissatisfied and humbly prays for your Lordship to review the said
judgement on the following grounds:
a. The learned sessions court judge had erred in conducting the view of a locus in quo
not according to the guidelines provided.
b. The learned trial judge had erred in law in not holding that the prosecution was
bound by law to prove its case beyond reasonable doubt at the end of prosecution
stage as required under Section 173(m)(i) of the Criminal Procedure Code.
c. The learned judge had misdirected himself by allowing the prosecution to recall Dr.
Kemist in order to adduce further evidence under Section 425 of the Criminal
Procedure Code.

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3. The Petitioner prays that such judgement or sentence may be reversed or that such order
may be made thereon as justice may require.

Dated this 23rd of January 2024

….………………………
Wan Miskiah Wan Mahmood
Advocate and Solicitor
Messrs. Wan & Associates
On Behalf of the Petitioner

This PETITION OF APPEAL is filed by Messrs. Wan & Associates, solicitors for the
Appellant whose address for service is at Aras 3, Wisma Central YG26, Jalan Zirkon B7/B,
Seksyen 7, 40000 Shah Alam, Selangor.

Reasons
First ground : The trial judge visited the crime scene after the trial, similar to the
circumstances in Harban Singh v R [1954] MLJ 158. In that case, a retrial was mandated
because the Magistrate had inspected the scene after the evidence was presented, without the
presence of, or informing, the appellant or his counsel.

Second ground : In accordance with section 173(m)(i) of CPC, the trial judge neglected to
perform a comprehensive assessment of all the evidence at the trial's conclusion to ascertain
whether the prosecution successfully established its case beyond a reasonable doubt. This
omission is evident from Venus' visit to the crime scene after the trial while heading home,
suggesting lingering uncertainties.

Third ground : While section 425 of CPC provides the court with the authority to recall and
re-examine witnesses at any trial stage, such a power should only be exercised when the
person's testimony is crucial for a fair decision. In the case of PP v Lin Lian Chen [1991] 1
MLJ 316, it was considered unjust and unfair to permit the prosecution, after concluding its
case, to hastily rectify deficiencies resulting from its own negligence in managing the
proceedings. Allowing this practice had deprived Kopi of any benefit from doubts cast on the
prosecution's case, particularly as the evidence linking his DNA profile to the semen found in
Anje's anus and panties had already prejudiced him.

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