His Lordship Abdul Karim Abdul Jalil JCA in delivering the judgment of this court held: “[15] Dalam rayuan ini, peguam terpelajar menyatakan pada masa tembakan dilepaskan, perayu sedang melarikan diri setelah rompakan selesai dilakukan. Hujahan ini amat meleset sekali dan tidak disokong oleh fakta jelas dalam kes ini. Peguam seolah-olah membuat garisan muktamad tertentu tentang bilakah rompakan itu berlaku dan bilakah rompakan itu tamat atas dasar yang di luar skema perundangan ini. Pada hemat kami, keseluruhan peristiwa di sini hendaklah dilihat sebagai satu transaksi. Tidak dinafikan perayu memasuki premis dengan tujuan untuk merompak dengan menggunakan senjata api. Fakta juga menunjukkan semasa perayu sedang hendak mengambil wang di bawah kaunter juruwang, dia telah dipeluk dari belakang oleh Terikul dengan tujuan untuk membanteras perbuatannya. Apa yang jelas daripada keterangan P33 dan P34, akibat daripada tindakan Tarikul itu, yang kemudiannya dibantu juga oleh rakan-rakannya, pergelutan sengit telah berlaku dan ini telah mengheret semua mereka keluar dari kawasan dalam kaunter juruwang berkenaan. Apa yang jelas perayu telah cuba diberkas semasa hendak mengambil barangan atau wang di bawah kaunter dan tembakan dilepaskan oleh perayu semasa pergelutan dalam usaha untuk melepaskan dirinya daripada cengkaman Terikul. Semua ini berlaku semasa rompakan sedang dilakukan dan masih dalam kawasan premis berdekatan dengan kaunter bayaran. Dilihat secara keseluruhan, semua transaksi ini membentuk satu transaksi dan tembakan yang dilepaskan adalah amat jelas semasa sedang melakukan rompakan. Tidak timbul langsung isu setelah rompakan telah selesai dilakukan dan semasa perayu sedang melarikan diri. Kami mendapati Hakim bicara telah menilai dan mempertimbangkan kedudukan ini secukupnya dan tidak melakukan apa jua kekhilafan untuk mewajarkan campur tangan kami.” (Emphasis added) [34] Reverting to the facts of the present case, SP5’s car was initially hit from behind by the Toyota Wish. SP5 and the 1st Appellant both got out of their respective cars. While SP5 was still inspecting the rear side of his car, the 1st Appellant suddenly got into the driver’s seat of SP5’s car. SP5 then tried to pull the 1st Appellant out. He managed to open the door and grabbed the 1st Appellant’s shirt. It was at this time the firearm was discharged by the 1st Appellant. It was discharged when SP5 tried to pull the 1st Appellant out from his car. The whole incident was witnessed by SP7. After shooting SP5, the 1st Appellant immediately drove away SP5’s car. [35] The 1st Appellant in his defence did not deny that SP5 was shot when he tried to open the door and attempted to remove the 1st Appellant from the car. The 1st Appellant however denied having shot SP5 and claimed that he was shot from the outside. [36] Nonetheless, we found the defence version to be highly incredible. Based on the evidence, we found that SP5 suffered a gunshot injury with an entry wound at the left lumbar and an exit wound at the left buttock. Based on the gunshot injury, we can safely conclude that SP5 was shot from the front. It is therefore ludicrous to suggest that SP5 was shot from the side or from behind, thus negating the 1st Appellant’s defence that SP5 was shot from the outside of the car. At the time when the firearm was discharged, SP5 was undoubtedly facing the 1st Appellant and his own car since he was trying to pull the 1st Appellant out of his car from the driver’s seat. There was nobody else inside SP5’s car except the 1st Appellant and SP5’s wife. Considering the position of the 1st Appellant and SP5 together with the gunshot injury suffered by SP5, we can safely conclude that SP5 was shot by none other than the 1st Appellant. [37] We are satisfied based on the evidence that the firearm was discharged at the time when the offence of robbery is being committed. The offence of robbery was completed when the 1st Appellant drove away SP5’s car after shooting him. The 1st Appellant was not merely trying to escape when he shot SP5. [38] In addition, the fact that the 1st Appellant discharged the said firearm towards SP5 clearly indicates the 1st Appellant’s intention was to cause death or serious injury to SP5. [39] Therefore, we hold that the elements of the charge under section 3 of FIPA 1971 have been duly established by the prosecution, as correctly found by the learned trial judge. There was no misdirection on the part of the learned trial judge and as such, there is no merit to this issue raised by the learned counsel. Second Issue: Adverse Inference Against the Prosecution for Their Failure to Call Najmi Daniel to Give Evidence [40] The learned counsel further submitted that the trial judge had erred in not invoking an adverse inference under section 114(g) of the EA 1950 against the prosecution for their failure to call Najmi Daniel as a prosecution witness. The relevant provision reads: “Section 114. Court may presume existence of certain fact. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume — … (g) that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it…” [41] With regard to the application of section 114(g) of the EA 1950, we are primarily guided by the decision of the Supreme Court in Munusamy v PP [1987] 1 MLJ 492, where His Lordship Mohamed Azmi SCJ (as he then was) in delivering the judgment of the court held: “It is essential to appreciate the scope of section 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case.” (Emphasis added) [42] We also agree with what has been decided by the Singapore High Court in Khua Kian Keong And Another v Public Prosecutor [2003] SGHC 238; [2003] 4 SLR 526, where Yong Pung How CJ (Singapore) held: “[34] Clearly this is a discretionary and not a mandatory inference: Chua Keem Long v PP [1996] 1 SLR 510, Chia Sze Chang v PP [2002] 4 SLR 523 and Satli bin Masot. The appellate court has to evaluate if the trial judge had exercised his discretion correctly. Strict criteria have been stipulated before this adverse inference can be drawn against the Prosecution, namely that: [(a)] the witness not offered was a material one: Chua Keem Long, Lau Song Seng v PP [1998] 1 SLR 663 followed by Satli bin Masot; [(b)] the Prosecution was withholding evidence which it possessed and which was available: Ang Jwee Herng v PP and Amir Hamzah bin Berang Kuty v PP [2003] 1 SLR 617; and [(c)] this was done with an ulterior motive to hinder or hamper the Defence: Ang Jwee Herng, Wong Leong Chin v PP [2001] 1 SLR 146 and Chia Sze Chang. [35] The court is generally reluctant to draw this inference against the Prosecution. I explained the rationale in Chua Keem Long: The discretion conferred upon the prosecution cannot be fettered by any obligation to call a particular witness. What the prosecution has to do is to prove its case. It is not obliged to go out of its way to allow the defence any opportunity to test its evidence. It is not obliged to act for the defence.” (Emphasis added) [43] We are also mindful of what has been decided by the Federal Court in Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen [1998] 1 MLJ 465, where His Lordship Edgar Joseph Jr FCJ (as he then was) held: “With respect, it is difficult to see how there could be justification for invoking the presumption under illustration (g) of s 114 of the Evidence Act 1950 against the Intervener/Purchaser for having failed to call the brokers. Illustration (g) says this: 'The court may presume that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it'. There was no evidence that the Intervener/Purchaser had 'withheld' the testimony of the brokers; there had merely been an omission to call them.” (Emphasis added) [44] According to the learned counsel, the failure of the prosecution to call Najmi Daniel as a witness creates a gap in the prosecution case since the issue of the ownership of P46A remains unanswered. This in turn results in reasonable doubt as to who had shot SP5. [45] The learned deputy on the other hand contended that the prosecution had successfully proven all the elements of the charge even without the evidence of Najmi Daniel. [46] We have gone through the appeal records, and we agree with the learned deputy. We are of the view that the ownership of P46A is not material nor relevant to the charge against the 1st Appellant. [47] The learned trial judge was satisfied based on the evidence of positive identification by SP5 and SP7 and the credibility of their evidence that it was the 1st Appellant who pulled the trigger. On this issue, the learned trial judge found: “Meneliti kepada keterangan kedua-dua saksi penting ini, Mahkamah memutuskan yang keterangan dari mereka merupakan keterangan dari saksi-saksi yang kredible. Keterangan SP5 yang disokong oleh keterangan isterinya, SP7, adalah merupakan keterangan dari saksi yang jujur dan bukan memberikan keterangan dengan mereka-reka cerita. Walaupun diasak dengan pelbagai soalan, keterangan mereka berdua ini tidak berganjak dan kekal meyakinkan. Keterangan yang ditampilkan melalui mereka berdua ini jelas membuktikan penglibatan Tertuduh (1) secara aktifnya … yang menunjukkan Tertuduh (1) telah menembak SP5…” [48] The learned trial judge, who had the audio and visual advantage to observe the demeanour of the witnesses was clearly entitled to his findings with regard to the credibility of the witnesses. As an appellate court, we should be slow to interfere with such findings unless it can be shown the findings were perverse and against all available evidence. In the present case, we see no reason to disturb the finding of the learned trial judge above. [49] Furthermore, there was no issue of withholding evidence because the prosecution did offer the witness to the defence. The 1st Appellant was accorded every opportunity to call Najmi Daniel as his witness, but he did not do so. [50] For the above reasons, we hold that there is no misdirection on the part of the learned trial judge when he did not invoke an adverse inference under section 114(g) of the EA 1950 against the prosecution for the non-calling of Najmi Daniel as a prosecution witness. Third Issue: Information Leading to Discovery Under Section 27 of the EA 1950 [51] The learned counsel submitted that the learned trial judge erred in admitting the evidence under section 27 of EA 1950 against the 1st Appellant, and in particular – a. Najmi Daniel’s statement in the police report (Exh. P111) that the 1st Appellant had asked him to keep P46A; and b. the 1st Appellant’s words that he had given P46A to Najmi Daniel to be kept as can be seen in the police report (Exh. P124). [52] At the outset, we agree with the learned counsel that the information given by Najmi Daniel should not have been admitted and considered by the court, as the maker of the statement or the giver of the information was not called to give evidence. It was hearsay at best. [53] However, the learned deputy contended that there was nothing in the learned trial judge’s grounds of decision to show that the information by Najmi Daniel was relied upon in his finding of the 1st Appellant’s guilt. We went through the appeal records, and we agree with the learned deputy. For this reason, we see no merit in this issue. [54] Next, the learned counsel submitted that the purported statement made by the 1st Appellant in Exh. P124 should not have been admitted in evidence and should not be considered by the court. According to the learned counsel, SP27 (Insp Mohd Aidil bin Shafie) who was the maker of Exh. P124 was not asked or shown Exh. P124 when he was giving evidence. After going through the appeal records, we agree with the learned counsel on this issue. [55] It is trite that the information given under section 27 of the EA 1950 is not required by law to be in writing. It follows that any written record of the information given by the accused will not by itself be substantive evidence of its contents. Therefore, the information supplied by the accused must be proved by oral evidence. [56] In the case of Amathevelli a/p P Ramasamy v Public Prosecutor [2009] 2 MLJ 367, His Lordship Arifin Zakaria CJ (Malaya) (as he then was) in delivering the judgment of the court held – “[29] However, that is not the end of the matter in so far as the admissibility of the information supplied by the appellant is concerned. The only evidence adduced by the Prosecution of the information is the record of it as contained in P51. SP12 did not give any oral evidence of it. In commenting on the manner of giving evidence of information received under s. 27, Augustine Paul J (as he then was) said in Public Prosecutor v. Hashim bin Hanafi (supra) at p. 185-186: Information given under s. 27 is not a matter that is required by law to be in writing so as to be governed by ss. 91 and 92 of the Act. Therefore the information must be proved by oral evidence pursuant to s. 60(b) of the Act. Thus a written record of the information given by the accused will not by itself be substantive evidence of its contents and it is what the witness deposes in court as having been said by the accused that will be evidence (see Bhagirath). Where the information is contained in a police diary it can only be used for the purpose of refreshing memory (see Public Prosecutor v. Er Ah Kiat [1965] 1 LNS 136; [1966] 1 MLJ 9). Where it is contained in any other document it can, at the highest, serve only as evidence of corroboration. It is on this basis that a report prepared by a chemist pertaining to his analysis of drugs cannot be tendered as substantive evidence of its contents but only as corroboration of his oral evidence in court under s. 157 of the Act (see Saw Thean Teik v. R [1952] 1 LNS 121; [1953] MLJ 124; Muhammed bin Hassan v. Public Prosecutor [1998] 2 CLJ 170; [1998] 2 MLJ 273). The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible (see DPP v. Hester [1972] 3 All ER 1056). Its role is to confirm other evidence in the sense that it renders that other evidence more probable (see Doney v. R (1990) 171 CLR 207; DPP v. Kilbourne [1973] AC 729). It cannot therefore amount to that other evidence itself. Thus the record of an information will only enhance the credibility of the witness and the absence of it cannot render the oral evidence of it inadmissible; nor can it be a substitute for the evidence that it is meant to corroborate. [30] It is therefore clear that there must be oral evidence of the information given. P51 cannot be a substitute for it. Accordingly, we hold that P51, the information supplied under s. 27 by the appellant, is inadmissible.” (Emphasis added) [57] In the appeal records, it can be seen from the oral evidence of SP27 that after the 1st Appellant was arrested and interrogated, he led (pandu arah) SP27 and his team to the place where the P46A was recovered. The following can be seen from the evidence of SP27: “S: Selepas menjalankan tangkapan terhadap kesemua OKT satu dan juga tiga. Adakah kamu ada jalankan apa-apa siasatan terhadap mana-mana OKT? J: Ada. S: Adakah kamu ingat kamu jalankan siasatan terhadap siapa? J: Terhadap nama Ahmad Farid. S: Adakah kamu ingat mana dan bila siasatan itu dijalankan? J: Di Balai Polis Kubang Kerian. S: Bila? J: Pada 13/01/2014 jam lebih kurang 3.40 pagi. S: Hasil daripada siasatan terhadap OKT 1. Adakah kamu ada rampasan apa-apa barang kes? J: Ada. S: Adakah kamu ingat barang kes ini yang dirampaskan? J: Satu pucuk pistol. S: Adakah kamu ingat bila masa dia, barang kes itu dirampas dan di mana barang kes itu dirampas? J: Barang kes itu dirampas pada 13/01/2014 jam lebih kurang 4.15 pagi di lot 2381 Taman Paduka Mukim Wakafkan Kota Bahru. S: Semasa buat rampasan terhadap pistol tersebut adakah kamu sendiri yang rampas ataupun diserahkan oleh sesiapa? J: Saya sendiri yang rampas setelah diberitahu oleh penama satu lelaki orang Melayu nama dengan panggilan NIA atau nama seingat Najmi Daniel. S: Semasa pergi membuat rampasan ini, adakah OKT1 turut serta? J: Turut serta. S: Adakah kamu pergi ke tempat rampasan ini hasil dari arah pandu arah OKT 1 atau macam mana? J: Hasil daripada pandu arah OKT 1 Ahmad Farid.” [58] We are of the view that the conduct of the 1st Appellant in leading the police to the discovery of P46A is admissible under section 27 of the EA 1950. In the case of Siew Yoke Keong [2013] 4 CLJ 149, His Lordship Ahmad Maarop FCJ (as he then was) in delivering the judgment of the Federal Court held: “[28] In the light of the authorities referred to, we hold that information admissible under s. 27 of the Evidence Act includes accused's statement, or his act or conduct such as pointing out which leads distinctly to the discovery of a fact. For such information to be admissible in evidence, there is no duty on the prosecution to prove the voluntariness of the information...” [59] Irrespective of whether the information supplied by the 1st Appellant is inadmissible under section 27 of the EA 1950, we found that there was sufficient evidence to show that the 1st Appellant had pointed out the place where P46A was discovered. This evidence is relevant and admissible under section 8 of the EA 1950. [60] In the Federal Court case of Amathevelli a/p P Ramasamy (supra), His Lordship Arifin Zakaria CJ (Malaya) (as he then was) in delivering the judgment of the court held: “[31] The inadmissibility of the information supplied by the appellant does not affect the admissibility of the evidence of her subsequent conduct under s 8 of the Evidence Act 1950 irrespective of s 27. As Chinnappa Reddy J said in Prakash Chand v State AIR 1979 SC 400 at p 404: The evidence of the circumstances, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapon which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under s 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously will or antecedent to such conduct falls within the purview of s 27 of the Evidence Act (vide Himachal Pradesh Administration v Om Prakash AIR 1972 SC 975).” (Emphasis added) [61] Based on the facts of the present case, P46A was confirmed to have been used during the commission of the offence evidenced by the serviceability and ballistic examinations. [62] For the foregoing reasons, we are of the view that there is no merit in this issue. Conclusion [63] In conclusion, after careful perusal of the appeal records, and hearing the submissions of all parties, we have come to a unanimous decision that there is no misdirection committed by the learned trial judge in his decision. We also found that the learned trial judge did not err both in fact and in law in arriving at the said decision and we see no reason to disturb the same. We are also of the view that having taken in totality the evidence adduced, the conviction against the 1st Appellant is safe. Accordingly, the 1st Appellant’s appeal is dismissed, and the learned trial judge’s decision is hereby affirmed. Dated: 27 April 2022 signed (HASHIM HAMZAH) Judge Court of Appeal, Malaysia Solicitors For The Appellant: Datuk N. Sivananthan Tetuan Sivananthan Advocates & Solicitors Suite No. 1, L17-01, PJK Tower, 16A Persiaran Barat, Seksyen 16 46200 Petaling Jaya Selangor Solicitors For The Respondent: Timbalan Pendakwa Raya Jabatan Peguam Negara Aras 5, No. 45 Lot 4 G7 Presint 4 Persiaran Perdana 62100 PUTRAJAYA