Mathiselvan A/L Periasamy v Pendakwa Raya (WA-42H-34-07/2018)

Initially, the accused only filed an appeal against sentence. On 28.08.2019, Mr. K. Annamalai Ramu a/l Kandasamy (“Mr. K.A. Ramu”) was appointed by the National 3 Legal Aid Foundation (YBGK) to represent the accused. Mr. K.A. Ramu was instructed that the accused had actually wanted to appeal against both conviction and sentence. However, since he was unrepresented, the accused merely used the standard format provided to him in prison leading to the notice appeal being one which is only against sentence. A notice of motion was accordingly filed seeking extension of time to file in a notice of appeal to appeal against the conviction. The learned DPP had no objections and the accused was allowed to file in the notice of appeal out of time in the interest of justice. Hence, this is an appeal by the accused against both the conviction and sentence. The charge [3] The charge proffered against the accused read as follows: “Bahawa kamu pada 29.10.2017 jam lebih kurang 10:45 pagi, bertempat di belakang Pasar Sentul, Jalan Sentul 4 Pasar, di dalam Daerah Sentul, di dalam Bandaraya Kuala Lumpur, Wilayah Persekutuan, telah melakukan kesalahan rompak dengan cara meragut rantai emas yang dipakai di leher Nyanyasundary a/p Vanathaiam (No. K/P: 651115 – 10 – 5048). Oleh yang demikian, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 392 Kanun Keseksaan.”. Brief facts The prosecution’s case [4] On 29.10.2017 at about 9:00 am, the complainant (PW1) drove to the church for the Sunday Mass. After that, PW1 went to Sentul Pasar to get breakfast. After getting a “tapau” of her choice of breakfast, PW1 got into her car to head home. As PW1 was about to get into her car, someone from behind had snatched the necklace she was wearing. Her blouse was also torn in the incident. PW1 put her things inside the car and turned to her back. According to PW1, she saw the accused at the distance of about 5 meters. The accused was looking 5 towards her. PW1 then locked her car up and tried to give a chase. The accused ran towards the Kampung KTM. PW1 later gave up the chase and lodged a police report.

According to PW1, she could identify the accused although she only had a glimpse of the accused. PW1 said the accused was slightly-built, had deformed ears and bowed legs. PW1 added that the accused was wearing a blue and white jersey with blue jeans. PW1 went home and related the incident to her nephew, Lawrence a/l Lorsamy (PW2). PW1 also gave a description of the accused to her nephew.

PW2 ran a business at the Sentul market. According to PW2, his auntie (PW1) told him of the incident and gave him a description of the perpetrator. PW2 said he searched the market area at Sentul and on 31.10.2017, PW2 saw the accused at an old shed. According to PW2, the accused resembled the same description as related to him by PW1. PW2 then snapped a photograph of the accused and sent it to PW1 6 using the WhatsApp application. PW2 said PW1 was not able to confirm whether it that was the perpetrator.

On 02.11.2017, PW2 saw the accused riding pillion on a motorcycle. PW2 took a video of the accused and sent it to PW1 using the WhatsApp application. PW2 said PW1 confirmed the person in the video sent by PW2 was the accused. On 03.11.2017, PW2 saw the accused was having a drink at a stall. PW2 called PW1 and PW1 came over. PW1 identified the accused. PW2 later called the police and the accused was apprehended. The defence’s case [8] In his defence, the accused (DW1) said that he did not know when the incident occurred. The accused only learnt about the incident when he was arrested by the police. According to the accused, PW2 did come over to his place to snap his picture. PW2 met the accused again on 03.11.2017. PW2 told the accused that his auntie, PW1, wanted to meet the 7 accused. The accused asked PW2 what was it all about and PW2 told the accused that it was because the accused had snatched PW1’s necklace. The accused said he was then at a coffee shop and told PW2 to ask PW1 to come over. Later the police arrived and arrested him. Gobpinath a/l Silvaraja (DW2) worked at the same place as the accused. They worked at a scrap metal store. The accused also worked at a cowshed owned by DW2’s family. The accused’s salary was paid by DW2’s family members. Normally, DW2 would only meet the accused at night to give the accused some money for dinner. From 7:00 pm to 7:00 am DW2 worked as a security guard. DW2 had not seen the accused except on the day he was arrested. Brief deliberations Contention of the defence/appellant [9] The sole challenge mounted by the defence is identification of the accused. The learned counsel contends that the accused should not have been called to enter his defence 8 based on lingering doubts surrounding the identification of the accused as the alleged perpetrator. According to PW1, she was able to identify the accused as the perpetrator based on the following description:

that the perpetrator had bowed legs;

the perpetrator had deformed ears, slight-built and could not straighten his feet;

when PW1 gave a chase, the perpetrator ran with a limp, described as “lari dengkut-dengkut”; and

when the accused said that his legs are normal, the trial judge instructed the accused to show his legs and to walk in the dock. The trial judge noted in the notes of proceedings at page 9 of the Record of Appeal (Volume 2) that the accused showed his legs and could walk without a limp. 9 [10] The learned counsel contends that this is a case of mistaken identity. The accused was wrongly identified by PW1. The accused did not have bowed legs as demonstrated in court and observed by the trial judge. There was also no other evidence to support the identification of the accused as the perpetrator. The alleged photograph and video recording of the accused as shown by PW2 to PW1 were not produced in court. PW1’s necklace was never recovered from the accused’s house. The police report lodged by PW1 did not even mention the description of the accused and an identification parade was not carried out. Contention of the prosecution/respondent [11] The learned DPP submits that the trial judge had carefully considered the evidence of PW1 in concluding that the accused was the perpetrator. The trial judge had considered the following factors: 10

the incident occurred in broad daylight and visibility was good;

PW1 saw the accused’s face at a distance of about 5 metres;

PW1 identified the accused as the perpetrator based on the way he ran and his deformed ears;

Corporal Srithran a/l Gopal (PW4) who arrested the accused confirmed that the accused appeared to have issues with his legs when he walked;

The trial judge himself observed that the accused had deformed ears. [12] The learned DPP submits that the identification evidence is credible as PW1 had no ill motives against the accused. The accused was a stranger to the PW1 and there was no reason to 11 suggest that PW1 could have frame-up the accused as the perpetrator. Additionally, PW2 got hold of the accused only after making sure that he had the very person as described by PW1. Analysis and decision [13] In hearing an appeal from a subordinate court, the duty of this Court is provided for under section 316 of the Criminal Procedure Code. Section 316 of the Criminal Procedure Code provides as follows: “Decision on appeal 316. At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal, or may —

in an appeal from an order of acquittal, reverse the order, and direct that further inquiry be 12 made, or that the accused be retried, as the case may be, or find him guilty and pass sentence on him according to law;

in an appeal from a conviction or in an appeal as to sentence —

reverse the finding and sentence and acquit or discharge the accused, or order him to be retried; or

(ii) alter the finding, maintaining the sentence, or with or without altering the finding reduce or enhance the sentence or alter the nature of the sentence;

in an appeal from any other order, alter or reverse such order.”. 13 [14] It is trite that in exercising its appellate powers, the High Court should properly consider and carefully weigh matters such as —

the views of the trial judge on the credibility of witnesses;

the presumption of innocence in favour of the accused;

the right of the accused to the benefit of any doubt; and

the slowness of an appellate court in disturbing a finding of fact arrived at by a trial judge who had the advantage of seeing the witnesses. (See: Lim Kheak Teong v. Public Prosecutor [1984] 1 CLJ Rep 207 FC; [1985] 1 MLJ 38; [1984] 1 MLRA 126 and 14 Periasamy Sinnappan v. PP [1996] 3 CLJ 187 CA; [1996] 2 MLJ 557; [1996] 1 MLRA 277; [1996] 2 AMR 2511). [15] At the conclusion of the trial, the trial court is under the statutory duty pursuant to section 173(m) of the Criminal Procedure Code to consider whether the prosecution has succeeded in proving its case beyond a reasonable doubt. Section 173(m) of the Criminal Procedure Code reads as follows: “173. The following procedure shall be observed by Magistrates in summary trials:

(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. 15

(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.

(iii) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal.”. 16 [16] In Duis Akim & Ors v. PP [2013] 9 CLJ 692 FC; [2014] 1 MLJ 49; [2014] 1 MLRA 92; [2013] 6 AMR 421, the apex Court made the following observations in respect of the duty cast upon the appellate courts when considering decisions of the trial courts: “[22] It is trite that being an appellate court it is our task in this case to review and consider the decision of the courts below. We need to determine whether on the evidence adduced the defence was rightly called. If so, whether the defence had raised a reasonable doubt in the prosecution's case. And even if it did not it is still essential that to sustain the convictions it must be determined whether the prosecution had proved its case beyond reasonable doubt.”. 17 Identification of the accused by PW1 [17] The learned counsel challenges the findings made by the learned Sessions Court Judge pertaining to the identification of the accused as the perpetrator. In this regard, the learned Sessions Court Judge had, during trial, instructed the accused to stand and walk in the dock, presumably to satisfy herself as to the conditions of the legs of the accused which PW1 said to be in a “bowed” condition and the perpetrator was not running straight at the material time when she gave chase after her necklace was grabbed from behind. The learned Sessions Court Judge too had recorded her observations when the accused demonstrated his walk in the dock. [18] The accused was not represented at trial and conducted his own defence. During cross-examination of PW1 by the accused, this is what was recorded in the notes of proceedings at page 9 of the Record of Appeal (Volume 2) in respect of one of the identifying features of the accused by PW1: 18 “Soalan: Kaki saya okey. (atas arahan mahkamah – OKT tunjukkan kedua-dua kaki dan berjalan dalam kandang saksi tanpa tempang). Masa kejadian saya ada di kedai besi buruk. Lawrence dan dua orang lagi pekerja datang tangkap gambar tempat saya bekerja dan selepas lima hari baru tangkap saya. Mereka tahu di mana saya tinggal. Masa ambil gambar kenapa tak tangkap saya kenapa selepas lima hari baru tangkap saya? Jawapan: Saya beritahu itu budak Sentul Pasar ambil gambar, tunjuk saya, inikah itu orang? Tapi gambar tidak jelas. Lepas dua hari, Sunday hilang rantai, Selasa atau Isnin itu pekerja dua orang jumpa saya tunjuk gambar. Saya cakap photo saya tak boleh cam muka. Hari Jumaat tangkap OKT. Hari kelima, Lawrence called saya, kata saya sudah pegang dia, dia berdiri di Sentul Pasar, aunti cepat mari. 19 Saya mari tenguk, ha ini muka sama juga. Saya tanya mana itu rantai, u cakap saya, saya angkat itu rantai, dia cakap saya tada angkat. Saya terus panggil polis.”. [19] In this regard, at page 11 of the Record of Appeal (Volume 2) when the learned Sessions Court Judge considered whether the prosecution has succeeded in establishing a prima facie case against the accused, the learned Sessions Court Judge recorded her findings as follows: “[5] Berdasarkan keterangan semua saksi terutama SP1 yang merupakan mangsa dalam kes ini, mahkamah menerima keterangan SP1 yang konsisten dan tidak tergugat semasa diperiksa balas bahawa SP1 mengenal pasti dapat mengingati dengan jelas wajah dan satu telinga tertuduh yang kecil dan perlakuan tertuduh yang merompak rantai emas di lehernya.”, 20 and at page 15 of the Record of Appeal (Volume 2) when the learned Sessions Court Judge considered the defence against the totality of the evidence adduced by the prosecution, the learned Sessions Court Judge recorded her findings as follows: “[15] Semasa di peringkat kes pendakwaan, mahkamah menilai keterangan mangsa iaitu SP1 dan mempercayai keterangan SP1 yang dapat melihat tertuduh dengan jelas semasa rantainya diragut. SP1 dapat memberi perihal yang jelas berkenaan ciri ciri yang ada pada tertuduh terutama cuping telinga tertuduh dan cara larian tertuduh. [16] Keterangan SP1 yang konsisten mengenai ciri-ciri wajah tertuduh apabila menyatakan lepas tertuduh menarik rantai SP1, SP1 pusing belakang dan nampak muka tertuduh. Tertuduh memandang muka SP1, lari dan berhenti pandang muka SP1 sekali lagi sambil 21 ketawa dan SP1 mengejar tertuduh sehingga hilang dari pandangan. [17] Dari keterangan SP1 juga mahkamah mendapati tiada apa-apa keterangan menunjukkan tertuduh melindungi mukanya. Kejadian berlaku di waktu siang dan jarak antara SP1 dan tertuduh adalah sangat dekat.”. [20] Despite recording her observations that “… (atas arahan mahkamah – OKT tunjukkan kedua-dua kaki dan berjalan dalam kandang saksi tanpa tempang.)”, the learned Sessions Court Judge did not deal with her reasons for finding that PW1 was able to identify the accused as the perpetrator of the crime. Neither did the learned Sessions Court Judge deliberate her reasons as to whether the conditions of the accused’s legs and the way he ran at the material time were material identifying factors for PW1 despite the learned Sessions Court Judge 22 observing that the accused’s legs appeared normal when he demonstrated the walk in the dock. [21] It is not disputed that PW1 was able to identify the accused as the perpetrator based on the following factors as submitted by the learned counsel:

that the perpetrator had bowed legs;

the perpetrator had deformed ears, slight-built and could not straighten his feet;

when PW1 gave a chase, the perpetrator ran with a limp, described as “lari dengkut-dengkut”; and

when the accused said that his legs are normal, the trial judge instructed the accused to show his legs and to walk in the dock. The trial judge noted in the notes of proceedings at page 9 of the Record of Appeal 23 (Volume 2) that the accused showed his legs and could walk without a limp. [22] If that is the case, surely the fact that the accused could demonstrate a normal walk in the dock when directed and observed by the learned Sessions Court Judge must be factored in by the trial judge in deciding whether the identity of the accused as the perpetrator of the crime has been established at the end of the prosecution’s case. [23] Identification of the accused must be made by the complainant herself, not by the trial judge. It is not for the trial judge to make her own identification but for her to record the reasons as to why she found the evidence of PW1 as to the identification of the accused was credible. When the learned Sessions Court Judge ordered the accused to demonstrate his walk in the dock, the learned Sessions Court Judge was in fact assessing the evidence of PW1 in respect of the description of the perpetrator given by PW1 and using the audio-visual 24 advantage she had as the trial judge which has led her to accord the evidence of PW1 with credibility in identifying the accused as the perpetrator. [24] When the learned Sessions Court Judge in the present appeal observed that the accused could in fact walk straight in the dock and not in a limped manner, the learned Sessions Court Judge had at that point in time, virtually made a finding that there was no abnormality with the accused’s leg. When this finding has been made by the learned Sessions Court Judge, it is therefore incumbent upon her to also state her reasons why she found that the identification of the accused by PW1 was credible despite the accused, as she had observed, did not have the particular identifying characteristics as described by PW1, namely that there was no evidence to show that the accused had bowed legs or could not walk in a straight manner. 25 [25] There was no medical evidence adduced by the prosecution to show the condition of the accused’s leg, whether the accused has had an injury to his legs which had healed or whether the accused was suffering from an abnormality of his legs or otherwise. Leaving aside the deformed ears of the perpetrator as described by PW1 which led her to identify the accused, there was no other evidence to support the identification of the accused by PW1 as the alleged perpetrator. Could that characteristic alone be taken as conclusive in light of the observation made by the learned Sessions Court Judge of the fact that the accused could walk normally in the dock? [26] PW1 only had a glimpse of the perpetrator at a distance of about 5 metres and PW1 had not known the accused before the incident. A distance of about 5 metres, in my considered view, could not be said to be a close distance, for all intents and purposes. Being a mere glimpse when the perpetrator was in a forward running motion in the opposite direction of PW1, it cannot reasonably be said that the glimpse was good and 26 satisfactory in the circumstances. The accused may or may not be the very perpetrator who committed the crime. This is even much so as the circumstances leading to the apprehension of the accused had largely depended on PW2 who had singled out the accused based on the description of PW1. When the accused was apprehended by PW2, he was surrounded by other men who came in aid of PW2. Identification of the accused in that circumstances would, in my considered view, be prejudicial to the accused. The possibility of an honest but mistaken identity could not be safely ruled out. [27] It is trite that in cases where there are more than one inferences which may be made, the one which is favourable to the accused must be adopted. The Federal Court in PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457 FC; [2005] 6 MLJ 393; [2005] 2 MLRA 590; [2005] 6 AMR 203, made the following observations in respect of the inference to be drawn at the close of prosecution when considering the evidence adduced by the prosecution on a maximum evaluation basis: 27 “[12] After the amendments to ss. 173(f) and 180 of the CPC, 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 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 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 [1948] 1 LNS 122; [1948-49] MLJ Supp 105; Public Prosecutor v. Kasmin bin Soeb [1974] 1 LNS 116; [1974] 1 MLJ 230. [Emphasis added]. 28 Conclusion [28] I am of the considered view that since the learned Sessions Court Judge did not state her reasons for having made a finding that PW1 was able to identify the accused as the perpetrator despite recording her observations that the accused could walk normally in the dock, the identity of the accused remains doubtful. The trial judge has to make a finding whether the identification of the accused as the perpetrator based on the identifying features as described by PW 1 was credible. In the present appeal, I gather from evaluation of the evidence that the accused may or may not be the perpetrator of the crime. The conviction is unsafe to be sustained. The benefit of the doubt must be resolved in favour of the accused. The prosecution could not, on the basis of a maximum evaluation of the evidence, be said to have successfully established a prima facie case against the accused. The accused should not have been called to enter his defence. Since the trial judge had not correctly called for the accused to enter his defence, it would not be necessary for this Court to consider the defence. 29 [29] Based on the reasons as aforesaid, I hereby allow the appeal by the accused and set aside the conviction and sentence. The accused is hereby acquitted and discharged of the offence as charged. Dated 17 February 2020. sgd AHMAD SHAHRIR MOHD SALLEH JUDICIAL COMMISSIONER HIGH COURT KUALA LUMPUR. For the appellant: K. Annamalai Ramu a/l Kandasamy (Messrs. K.A. Ramu Vasanthi & Associates) For the National Legal Aid Foundation. For the respondent: Fatin Hanum binti Abdul Hadi Deputy Public Prosecutor Kuala Lumpur.