Penalty for accomplices in case of discharge of firearm Where, with intent to cause death or hurt to any person, a firearm is discharged by any person at the time of his committing or attempting to commit or abetting the commission of a scheduled offence, each of his accomplices in respect of the offence present at the scene of the commission or attempted commission or abetment thereof who may reasonably be presumed to have known that such person was carrying or had in his possession or under his custody or control the firearm shall, notwithstanding that no hurt is caused by the discharge thereof, be punished with imprisonment for a term of not less than thirty years but not exceeding forty years and with whipping with not less than twelve strokes, unless he proves that he had taken all reasonable steps to prevent the discharge." Issue (i): The defence of the Appellants had raised reasonable doubt to the prosecution's case [29] It was submitted by the counsels of all the Appellants that their defence had raised doubt to the prosecution's case. [30] In this regard, for OKT1, the counsel submitted that OKT1 is not the one who shot the gun. It could also be PW10 or Faisal (the deceased accused) who shot the gun. Thus, this followed by the submission of OKT2 and OKT3 that both did not that know that OKT1 was carrying or had in his possession or under his custody or control the firearm. The learned counsel had referred to the case of Public Prosecutor v. Ong Poh Cheng (1996) 1 CLJ 501 on whether discharge of the firearm was an act separate and distinct from the robbery as follows: "The accused discharged his firearm not at his victims and it was not proved that the accused discharged a firearm at the time of committing the robbery". [31] We have considered the Appellants' defence and their submission. However, we are constraint to depart from the finding of the learned High Court Judge. We refer to the case of Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor (2003) 2 MLJ 97 which held as follows: "Generally, an appellate court will not intervene unless the trial court was shown to be plainly wrong in arriving at its decision or where there had been no or insufficient judicial appreciation of the evidence. Judicial appreciation of evidence meant that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. Where contemporary documents existed, he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. The principle central to appellate interference is that a decision arrived at by a trial court without judicial appreciation of the evidence may be set aside on appeal." [32] In considering these appeals, we follow this court earlier decision in the case of Fairoz Azman bin Amironzuki Iwn Pendakwa Raya [2021] 2 MLJ 771; [2021] 1 LNS 108 in which His Lordship Abdul Karim Abdul Jalil JCA stated that in determining whether the firearm was discharged whilst committing robbery, the whole incident should be viewed as a single transaction. [33] When we evaluated the facts and evidence in this case, we found that the evidence was corroborated. It is not only the evidence by PW10 who is the victim in this case but also evidence from the report of SP12 stated that there was a presence of the DNA of OKT2 and OKT3 in the hotel room from which few items were seized including the bullet which is identical to the one found the scene. It is difficult to arrive at the decision hat this happen all of a sudden. [34] The defence also failed to rebut that there is a discharged of firearm in which happened at the time of the commission of the robbery. Section 3 of the FIPA also makes it clear that the offence is said to be committed notwithstanding that no hurt is caused to the victim. It is enough that there is a discharged of firearm at the time of committing or attempting to commit or abetting the commission of a scheduled offence enumerated in the Schedule to the Act which in this case a robbery. It is too bad that in this case, the shot had caused injury to OKT2. The use of gun in a robbery is a clear indication that there is an intention to cause death or serious injury to the victim and such indication of intention becomes unclouded when there is a discharged of firearm notwithstanding that no hurt is caused to the victim, PW10. [35] The counsel for OKT3 also submitted that an adverse presumption under section 114(g) of the Evidence Act should be invoked in this case on the reason that the prosecution failed to prove that the gun belongs to any Appellants. All the Appellants suggested that it Faisal (the deceased accused) who might bring the gun to the scene in which they had no knowledge about it. The prosecution was said failed to produce 112 statement of Faisal. [36] In this regard, we refer to the case of Ong Hooi Beng & ors v. PP [2015] 1 LNS 63, in which Abdul Rahman Sebli, JCA (as he then was) stated as follows: [59] Further, even without SD7's evidence the prosecution already had sufficient evidence to establish a prima facie case against all the appellants. Thus the failure to call him as a prosecution witness is of no consequence as it did not result in a gap in the prosecution case. It is trite law that an adverse inference cannot be drawn for failure to call a witness when the prosecution has discharged its burden. As Yong Pung How CJ said in Chua Keem Long v. PP [1996] 1 SLR 510 at pages 523-524: "The appellant's contention is that the failure of the prosecution to adduce evidence of those other gamblers meant that the court could presume that the evidence would have gone against the prosecution, that is there were no such visits. Such arguments are commonly made, Commonly too, such arguments are without merit. The court must hesitate to draw any such presumption unless the witness not produced is essential to the prosecution's case. Any criminal transaction may be observed by a number of witnesses. It is not necessary for the prosecution to produce every single one of those witnesses. All the prosecution need to do is to produce witnesses whose evidence can be believed so as to establish the case beyond reasonable doubt. Out of a number of witnesses, it may then only be necessary to bring in one or two; as long as those witnesses actually produced are able to give evidence of the transaction, there is no reason why all the rest should be called, nor why any presumption should be drawn that the evidence of those witnesses not produced would have been against the prosecution." [37] In our present appeals, PW10 was able to give evidence of the transaction as he was the victim and the sole eye-witness. PW10 able to inform the court the situation at the time of the incident. He can remember OKT who sat in the car which far from him in which this fact is not disputed by OKT. This issue is also related to the next issue on the credibility of PW10. Issue (ii): The evidence of PW10 is not credible [38] All the counsel of the Appellants raised this issue on the point that the learned High Court Judge was in error in relying on the evidence of PW10 in which we are aware that PW10 is the only eye witness for the prosecution. The Appellants contended that there are discrepancies in the evidence led by PW10, to name a few, PW10 in his testimony during the examination in chief stated that when the gun was pointed at him, OKT2 had asked for the bag to be handed over to his colleague on the left and during the cross-examination, PW10 said that when he tried to push away the gun, a shot was fired. However, in contradiction, during the reexamination when PW10 was asked by the prosecutor to explain why he did not agree that the shooting happened by accident, PW10 then changed his evidence by saying that the accused had already tried to shoot when the pistol was pointed. [39] The learned counsel for OKT1 drawn this Court attention to the case of Radin Irwan Iskandar bin Isagani Iwn Pendakwa Raya [2017] 5 MLJ 736 which held as follows: “[22] Berdasarkan penelitian kami kepada rekod rayuan dan penghakiman hakim bicara, kami bersetuju bahawa hakim bicara telah bergantung sepenuhnya kepada keterangan lisan SP12 dalam mensabitkan perayu dengan pertuduhan. Hakim bicara telah menerima keterangan SP1 secara bulat-bulat dan atas nilai muka ('face value') tanpa membuat pertimbangan terhadap fakta bahawa SP1 seorang saksi yang berkepentingan. Daripada keterangan yang telah diberikan oleh SP1 sendiri serta berdasarkan kepada keseluruhan keterangan dalam kes di hadapan kami, tidak syak lagi bahawa SP1 adalah seorang saksi yang mempunyai kepentingan dalam kes ini. Keterangan SP1 sewajarnya diteliti dan diterima dengan secara berhati-hati oleh hakim bicara dan keterangan saksi sedemikian wajar memerlukan keterangan yang lain sebagai sokongan. Pada pandangan kami, keterangan SP1 bukanlah keterangan yang kukuh untuk membuat sabitan ke atas perayu oleh hakim bicara menjadi satu dapatan dan keputusan yang selamat untuk dipertahankan.” [40] With regard to this issue, we are of the view that the learned High Court Judge is the one who had the audio and visual advantage to observe the demeanour of the witnesses. Hence, he was clearly entitled to make 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 before us that the findings were perverse and against all available evidence. In the present case, we see no reason to disturb the finding of the learned High Court Judge. [41] We are guided by the decision of Raja Azlan Shah FJ (as His Highness then was) in the case of Public Prosecutor v Datuk Haji Harun bin Haji Idris (No 2) [1977] 1 MLJ 15 which stated that: "... In my opinion, the discrepancies there will always be, because in the circumstances in which events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened. The question is whether existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and reject the other. In the absence of any contradiction, however, and in the absence of any inherent improbability, the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted." [42] As to whether the court accept just a single witness to prove the case of the prosecution? It is trite that the evidence is weighed and not counted pursuant to section 134 of the Evidence Act 1950. The law is clear that "No particular number of witnesses shall in any case be required for the proof of any fact". In Ratanlal and Dhirajlal's Law of Crimes (27th Ed) at pp 1965-1969, it stated that, "It is now a well settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence." [43] Coming back to our case, the learned High Court Judge had not only considered the evidence of PW10 but also other corroborative evidence. Therefore, we are not convinced that the learned High Court Judge was wrong. Conclusion [44] In the upshot, having perused the appeal records, the grounds of judgement and the written submissions by parties and based on the aforesaid reasons, we unanimously find that there is no merit in the Appellants' appeals on conviction. All appeals on conviction are hereby dismissed. [45] With regard to the appeals against sentence, it is trite law that when the punishment to any offence is amended to a heavier punishment, it is the intention of the Parliament to perceive such offence as serious. Therefore, in arriving to our decision for appeal against sentence in these appeals, we are guided by the decision Abdul Malik Ishak JCA in the case of Yong Kar Mun v Public Prosecutor [2012] 6 MLJ 209 as follows: [82] We will now refer to the Hansard in order to understand the true purpose and intention of the Act. At the third Parliamentary sitting of the 'Dewan Ra'ayat' (House of Representatives) on 27 July 1971, the Honourable Attorney General Tan Sri Abdul Kadir bin Yusof ('AG') said at p 3850 of the Hansard: What we are bringing here is an amendment for an enhanced, a higher, penalty for committing robbery and kidnapping and other offences as stated there, four types, if they used firearms; if they used penukul, paku, or parang or any other weapon it is just like ordinary crime. But what we are going to kill is the use of firearms, bomb and grenade, when committing crimes because this is on the increase now. [85] From the debates in Parliament as seen from the Hansard, the Act was born out of necessity, so to speak, to curb the use of firearms to commit 'armed payroll hold-ups, leading either to death or injury'. [86] On the facts, it is a gross miscarriage of justice not to convict the appellant for committing the offence as per the amended charge in exh 'P112'." [46] Therefore, we are of the considered view that serious offence should be punished with severe punishment. However, after taking into consideration the mitigation put forward by the defence counsels of the Appellants, we agree to set aside the sentence imposed by the High Court and sentence the Appellants with an imprisonment for a term of 30 years. We also make an order for 12 strokes of whipping to OKT3 and OKT2. No sentence of whipping to OKT3 because he had attained the age of 50 years old. -sgd- (AZMAN BIN ABDULLAH) Judge Court of Appeal Malaysia Putrajaya Date of Decision :17 August 2023 Grounds Issued :18 December 2023 27 Legal RepresentationFor OKT1(Appellant in Appeal No.B-05(M)-44-02/2021)Salim Bashir(together with Najihah Zulkifli)[Messrs. Salim Bashir, Ruswiza & Co.]For OKT2(Appellant in Appeal No.B-05(M)-43-02/2021)Sreekant Pillai[Messrs. Sreekant Pillai]For OKT3(Appellant in Appeal No.B-05(M)-51-03/2021)Aifuddin bin Ahmad Hafifi(together with Muhammad Amirrul bin Jamaluddin)[Messrs. Salehuddin Saidin & Assoc]For the RespondentMohd Fairuz bin Johari[Attorney General's Chambers]