Law updates - Criminal law (Malaysian law unless otherwise stated)

* Abbreviations  
HC = high court 
COA = court of appeal 
FC = federal court  

Public Prosecutor v Umar Cipto Sumarto [HC]  

From the evidence adduced, the prosecution succeeded in proving the unlawful possession of more than 2 firearms by the accused and could with justification rely on the presumption of trafficking in firearms under s 7(2) of the Act. The accused knew that the firearms and ammunition were in P5 and P6, which had been placed by him on board the vessel and that he had the power of their disposal to the exclusion of all the others on board at the time they were seized. There was no evidence to prove material breaks in the chain of evidence. Notwithstanding the discrepancies and inconsistencies in the testimony of the prosecution's witnesses, the accused's testimony and by inference from the relevant surrounding circumstances showed that the prosecution had succeeded in establishing that the exhibits produced in court were the firearms and ammunition seized from the vessel. It would be totally unjust to impose upon the prosecution the added burden of disproving or excluding every doubt that may possibly exist. With regards to the issue of whether the firearms and ammunition were "lethal" within the context of s 2(1) of the Act, it was sufficient in the instant case for the prosecution to adduce evidence to show that the same were serviceable because it was an obvious fact that those weapons would cause injury which could lead to death if "a shot bullet or missile" was discharged. There was no merit in the argument that the accused did not and never had the intention to "sell" the firearms and that therefore, he could not be said to be trafficking in firearms. In the first place, the prosecution having proved that the accused was in unlawful possession of more than 2 firearms was entitled to invoke the presumption of trafficking under s 7(2) of the Act. There was no doubt that the accused was in unlawful possession of the firearms because he admitted that he did not hold an arms license or a valid permit. The words "transfer, sell or offer for sale" in s 2(1)(c) of the Act must be read disjunctively and in the circumstances, the prosecution had clearly established that the accused intended to transfer the firearms and ammunitions to his comrades in Indonesia. Lastly, there was also no merit to the contention that there was a doubt as to whether the offence was committed in Malaysian waters. The evidence to the effect that the patrol boat was patrolling Malaysian waters sufficiently established that fact. On all the evidence adduced, the prosecution satisfactorily succeeded in establishing its case beyond reasonable doubt, on which the defence failed to cast a reasonable doubt.  

Janti Jackson Empading & 5 Ors v C/Insp Zulkarnain bin Abdullah & Anor [HC]

The areas of law involved in this instance, were in relation to ss 112, 113 and 117 of the Criminal Procedure Code (the CPC) which sections have been the subject of numerous litigation as evidenced by the reported cases and in particular those cases referred to by the applicants, which remain good law. Based on the authorities, the issues raised by the applicants have been fully dealt with and there was therefore no necessity in the circumstances for any ruling to be made in this instance, as a guide for future cases. The word "revision" connotes a situation where there is something to revise. Where there is nothing to revise, the general rule is that the powers of revision should be exercised only in the exceptional circumstances as laid down by the House of Lords in R v Secretary of State for Home Department and Another; Ex Parte Abdi [1996] 1 All ER 641 
 
Reza Mohd Shah bin Ahmad Shah v Pendakwa Raya [COA] 

The decision in Sim Teck Ho, can easily be distinguished as in the present case the inference of possession of cannabis and the appellant's knowledge that the drugs in P3 were cannabis, was deduced only from the fact that the appellant had taken flight and thrown P3 and its contents to the ground upon being confronted. It cannot be concluded from the appellant's conduct that he knew that what he was carrying was cannabis. Other inferences could be easily drawn as the appellant could have acted in the manner he did in respect of any other offence relating to what was contained in P3, more so in this case as he was confronted by the police who were not uniformed at the time. By the operation of the DDA, it was necessary for the prosecution to prove directly or inferentially that the appellant had knowledge of the nature of the drugs he was carrying in P3. Knowledge in a person is a thing which cannot be seen or perceived but can be deduced only from the overt act or conduct of the person, short of the person's own admission. In the circumstances and from the conduct of the appellant, the appellant may be deemed to have been in possession of the drugs and to have known that P3 contained the same only under the provisions of s 37(d) of the DDA of which neither the trial judge nor the prosecution had availed themselves to. Short of invoking the said provisions no prima facie case had been made out against the appellant that he was in possession of cannabis with the requisite knowledge. Consequently, the issue of trafficking in the said drugs does not arise at all as the issue of possession of the same by the appellant had not been made out by the prosecution. Though however there was no direct evidence of possession with the requisite knowledge but on the facts, and based on the provisions of s 37(d) of the DDA, the prosecution had made out a prima facie case for an offence under s 6 of the DDA and the appellant ought to have been called to enter his defence for such offence. The appellant's defence at the trial should have been considered as a defence on the reduced charge of possession of cannabis. On the facts, and considering the appellant's defence, which was one of mere denial of the prosecution evidence, the appellant had failed to rebut the presumption under s 37(d) of the DDA or to raise any reasonable doubt as to his custody and control of P3, which contained the drugs. The prosecution in the circumstances, had proved its case against the appellant on the reduced charge of possession, beyond reasonable doubt and consequently, the appellant was guilty of an offence under s 6 of the DDA. 
 
Pendakwa Raya v Soo Tai Leng [HC] 

Although there was no direct evidence, the circumstantial evidence adduced by the prosecution clearly showed that only the accused, the deceased and their 3 children were present at the time of the incident. SP4 confirmed that there was nobody else present at the material time. SP4 also saw the deceased trying to put out the flames, whilst the accused stood by without coming to his aid. Although there were minor inconsistencies in SP4's evidence, this did not mean that the whole of his evidence ought to be rejected. The circumstantial evidence showed clearly that the accused poured petrol on the deceased and then set him alight. It was indisputable that the accused was directly involved in causing the deceased's death. To qualify as a dying declaration in law and admissible as evidence, the deceased's statement must relate to the cause of death or the transaction causing the death as provided by s 32(1)(a) of the Evidence Act 1950. The statement made by the deceased to SP6, that the accused poured petrol on him and proceeded to set him alight, related to his cause of death, i.e. septicaemia due to severe burns. SP6's evidence on this point was accepted as true since there was no reason for him to make it up. However, since it was indisputable that the accused caused the deceased's death, the deceased's dying declaration was given very little consideration. Although the conduct of the accused was dangerous and it betrayed elements of premeditation, the circumstances showed that the incident occurred immediately after an argument between the deceased and the accused. Further, based on the testimony of SP4 and SP5, the court was inclined to the conclusion that the deceased had been violent towards the accused. However, this did not constitute a full defence in law. This however had to be considered in determining the mens rea of the accused at the material time. The fact that the accused did not attempt to flee after the incident was of no help to the prosecution in attempting to prove the mens rea of the accused. The lapse of 12 days after the incident and the deceased's subsequent death coupled with the fact that it was possible to stabilise the deceased before he was transferred to the hospital in Singapore were also valid considerations. Although the evidence adduced by the prosecution raised suspicions that the accused possessed the necessary mens rea to kill the deceased, the benefit of the doubt must and should be applied in favour of the accused in light of the circumstances of this case. Suspicion did not constitute evidence and could not be the basis for convicting the accused. The accused did not intend to cause injury to deceased that she knew would possibly cause his death. Further, the accused did not intend to cause injury that would, in ordinary circumstances, cause death. The prosecution therefore failed to prove a prima facie case against the accused under s 302 of the Penal Code (PC). At the close of the prosecution's case, there was firm evidence to show that the actions of the accused were done with the intention of causing grievous bodily harm that may cause death. Therefore, the prosecution had proved a prima facie case against the accused under s 304(a) of the PC, and the charge preferred against her was amended pursuant to the powers under s 158(1) of the Criminal Procedure Code. Upon the amendment to the charge, the accused pled guilty and she was convicted under s 304(a) of the PC. Section 304 of the PC provides the court with a wide discretion to determine the period of imprisonment. Of paramount importance would be public interest, as a lesson to the accused and to afford protection to the public. An offence under s 304(a) of the PC is serious where the maximum sentence may be imposed is 20 years imprisonment. However, based on the evidence adduced, the deceased had been violent towards the accused before she poured the petrol on him and set him alight. The accused was acting under severe emotional strain and grappling with her anger towards the deceased. The accused pled guilty at the first available opportunity upon the amendment of the charge. This showed that the accused was truly remorseful about the offence she committed. Therefore, a sentence of 8 years imprisonment from the date of arrest was appropriate and reasonable in the circumstances of this case.  

Pendakwa Raya v Kenneth Fook Mun Lee @ Omar Iskandar Lee bin Abdullah (No 2) [COA] 

On the day of the incident, the respondent was armed with a loaded gun which he kept in an ankle holster. He could not be regarded as a person having no knowledge about the dangerous character of a loaded gun, which was clearly a lethal weapon. The weight of the evidence clearly established that the respondent was in control of his actions despite the alcohol he had consumed and that at the scene of the incident, he was capable of moving himself independently and was able to converse with others. There was no evidence to show that the respondent was staggering or that his speech was incoherent. There was also nothing to show that his mind was so affected by the alcohol that he had consumed that he was incapable of knowing that what he was doing was wrong. At the trial, the defence did not specifically raise the defence of intoxication. It was only alluded to in submissions at the end of the trial. The defence had, in fact, called witnesses to counter any suggestion that the respondent had acted under the influence of alcohol. It was not the duty of the trial court to speculate or anticipate any defence that had not been raised or give due consideration to the same. The law requires that a trial judge consider all the evidence that has been adduced in support of the defence and whether it is capable of raising a reasonable doubt in the prosecution's case. Such an exercise should only be carried out at the conclusion of the trial. The learned trial judge in this instance, notwithstanding that the defence had not been raised during the prosecution's case, dealt with it at length at the close of the prosecution's case. The facts were sufficient to bring the case within the ambit of s 300(d) of the Penal Code (PC). The invocation of the learned judge of s 300(c) of the PC was erroneous. Intention was not a necessary element under s 300(d), where all that is needed is knowledge that the act is likely to cause death. The emphasis in s 300(d) is on the imminently dangerous character of the act itself, and is usually applied where the offender acts in general disregard for human life and safety. It is clear from the evidence that the respondent did not know the deceased. The respondent committed culpable homicide amounting to murder, which offence clearly fell under s 300(d). The respondent failed to show on a balance of probabilities that he did not know that his act of discharging his gun at the deceased in close range was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. The learned judge therefore misdirected himself in fact and in law and ought to have found the respondent guilty on the original charge of murder.

Popular posts from this blog

Law updates - Insurance (Malaysian law unless otherwise stated)

Law updates - General (Malaysian law unless otherwise stated)

What are the available remedies to a purchaser when he is given a defective house out of time by the seller developer?