Muhammad Rozaimi Bin Hasim (MC-83-161-04/2023)

1.

2.

MUHAMMAD NOOR AZROY BIN MD SHARIF MUHAMMAD ZAHIR BIN MD YUSOF

The prosecution had applied orally for these two cases to be heard together, as the alleged offences were committed to form the same trasaction. The defence counsel did not raise any objection to the joint trial, which was allowed by this court.

The accused named Muhammad Rozaimi bin Hasim, a single individual, was charged in respect of an offence under section 504 of Penal Code for intentional insult with intent to provoke a breach of the peace. The case was registered as MC-83-161-04/2023 and the charge reads as follows: “Bahawa kamu pada 8.1.2021 jam lebih kurang 11.30 malam di Batu 17, Kampung Ayer Pasir, Machap Baru, dalam Daerah Alor Gajah di Negeri Melaka dengan sengaja telah mengaibkan dengan mengucapkan perkataan “polis takde hak pegang bahu, jika nak tangkap pegang tangan,” dengan kuat dan dengan jalan demikian itu telah mendatangkan bangkitan marah kepada Insp Nor Azril bin Mohamad Marjid, No. KPT. 870820-08-5599 dengan mengetahui mungkin bahawa bangkitan marah itu akan menyebabkan memecahkan keamanan awam, dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 504 Kanun Keseksaan.” Hukuman: hendaklah dihukum dengan pemenjaraan selama tempoh yang boleh sampai dua tahun atau dengan denda atau kedua-duanya.

The other three accused were charged, relevant for present purposes, with voluntarily causing hurt to deter public servant from his duty under section 332 of Penal Code. The charge against the three accused person was reproduced as follows and registered as case no. MC-83-162-04/2023:- “Bahawa kamu bersama-sama pada 8.1.2021 jam lebih kurang 8.10 malam di tepi jalan besar, Simpang Tiga Ayer Pasir, Machap Baru, dalam Daerah Alor Gajah di Negeri Melaka dalam mencapai niat bersama dengan sengaja telah menyebabkan cedera kepada Koperal Ramanan a/l Gunashekaran, No. KPT: 861006-14- 5599 iaitu seorang anggota Polis Diraja Malaysia, tatkala beliau menjalankan kewajipannya sebagai anggota pasukan Polis Diraja Malaysia dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 332 Kanun Keseksaan dan dibaca bersama seksyen 34 Kanun yang sama.” Hukuman: Hendaklah dihukum dengan pemenjaraan selama tempoh yang boleh sampai tiga tahun atau dengan denda atau kedua-duanya.

The four accused pleaded not guilty to the said respective charge and claimed trial. The prosecution has called five witnesses as follows:- i. PW1, Koperal Ramanan A/L Gunasehakaran (the victim of the case no. MC-83-162-04/2023); ii. PW2, Koperal Nor Mohamad bin Yusof (the photographer); iii. PW3, Dr. Tee San Ni (the doctor); iv. PW4, Koperal Lisrullah bin Ali (one police officer who was patrolling with PW1); and v. Insp. Nor Azril bin Marjid (the Investigating Officer and also the victim of the case no. MC-83-161-04/2023). Prosecution’s case 5. The brief facts of the case are articulated as follows. On 8.1.2021 at approximately 8.10pm, acting on a report regarding a drunk individual (response time), IPD Alor Gajah Movement Unit personnel, Corporal 17198 Ramanan a/l Gunashekaran (hereinafter referred to as "PW1") together with Corporal 167640 Lisrullah bin Ali (hereinafter referred to as "PW4"), both wearing police vests, went to the roadside at Simpang Tiga Ayer Pasir, Machap Baru. Upon arriving at the scene, they found an Indian male believed to be intoxicated, being calmed down by his family members in a vehicle with registration number VJ 3140, a Nissan Almera.

Then, a group of local people arrived, and one of them slapped the intoxicated Indian man. According to PW4, one of the men had a food stall by the roadside, and the glass of the stall was broken by the Indian man. PW4 did not see the Indian man breaking the stall's glass but saw the broken glass at the scene. PW1 and PW4, who were wearing police vests, introduced themselves as police officers and attempted to break up the altercation and offered advice. However, the group had initiated provocation and hurled insults at PW1, as per PW1's oral evidence claimed the group were saying “pukimak, polis bodoh, polis bacul, and pergi mampos la kau polis bodoh”

The group were alleged to obstruct PW1 from performing his duty by one of them, Muhammad Sabeerin bin Md Yusof (the accused who had pleaded guilty on 12.1.2021), punching PW1 in the face, causing him to fall, followed by a kick to the face. PW1 stated that he was also attacked by all the accused originally charged, including these three accused in the present case no. MC-83-162- 04/2023 along with Muhammad Sabeerin bin Md Yusof and Mohd Aidel bin Md Yusop (another accused who had also pleaded guilty on 12.1.2021) by kicking him repeatedly, causing PW1 to feel dizzy.

PW4 attempted to break up the fight while PW1 continued to try to calm the situation. However, the five individuals as above-mentioned ignored PW1 and refused to go to the police station. They eventually left the scene and PW1 returned to the police station to file a police report (P2). As a result of the incident, PW1 sustained injuries to his nose, lips, and right hand. PW1 then received his treatment at the Emergency Department of Alor Gajah Hospital, where he was attended to by Dr Tee San Ni ("PW3"). Upon examination, PW3 found that PW1 had sustained tissue injuries to his chest, shoulder, lips, and hand (as stated in the Pol.59 form under PW1's name, P4).

Acting on information, Inspector Nor Azril bin Marjid (hereinafter referred to as "PW5") together with Inspector Dharmawan bin Sarifuddin and their team officers from the IPD Alor Gajah Criminal Investigation Department arrested the accused persons who were Muhammad Al Nijam bin Md Yusof, Mohd Aidel bin Md Yusop, Muhammad Sabeerin bin Md Yusof and Muhammad Noor Azroy bin Md Sharif, who were involved in case no. MC-83-162-04/2023, at the premise located at Bt. 17, Kampung Ayer Pasir, Machap Baru, 78000 Alor Gajah, Melaka. Meanwhile, the arrest of Muhammad Zahir bin Md Yusof of the same case was made at the Machap Baru Police Station premise.

However, for case no. MC-83-161-04/2023, the accused, Muhammad Rozaimi bin Hasim, was arrested at the said premise at Bt. 17, Kampung Ayer Pasir, Machap Baru, for obstructing PW5 from arresting the four individuals as above-mentioned by uttering words with intent to provoke a breach of the peace. An identification parade was conducted on 9.1.2021 at the Identification Parade Room of IPD Alor Gajah and the relevant individuals were positively identified by PW1 (for case no. MC-83- 162-04/2023) and PW5 (for case no. MC-83-161-04/2023), as charged accordingly in the aforementioned. Evaluation and Findings (at the end of the Prosecution’s Case)

It was evident that the facts underlying the transaction subject to the charges were the same. This court was satisfied that a single transaction existed, considering the proximity in time, unity or proximity of place, continuity of action, and continuity of purpose or design, as demonstrated by the aforementioned factual considerations. The grounds for a joint trial were clearly established, and there was no objection from the defence counsel (Public Prosecutor v Tan Eng Boon [2020] 8 MLJ 343, HC).

It is undeniable that the charges with one accused being charged for intentional insult with intent to provoke a breach of the peace, and another five being alleged to have voluntarily caused hurt to a public servant in the discharge of his duty where two had pleaded guilty, were overwhelmingly indicate the presence of a unity of design. In the present case, clearly this court, being aware of the facts relating to the same transaction, would evaluate the element required for distinct offences under section 504 and section 332 of the Penal Code respectively. As such, a joint trial would not prejudice the four accused before this court. Case No. MC-83-161-04/2023 (section 504, Penal Code) Prosecution’s submission 13. The prosecution in this case must prove the charges against the accused based on the following elements: a) The accused initiated provocation by loudly stating, “police takde hak pegang bahu, jika nak tangkap pegang tangan” with the intention of insulting or humiliating SP5; and b) The accused uttered these words to provoke anger in PW5, with the intent to cause a breach of public peace. Defence’s submission 14. The defence respectfully argued that the statement in question did not constitute an insult, whether intentional or not. It was unsafe to conclude that the words spoken by the accused (Muhammad Rozaimi) shall be considered an insult towards the complainant

The defence further referred to the case of Mohd Fairuz bin Ahmad v PP [2021] MLJU 2453 (HC) where the accused was charged under section 509 of the Penal Code, an offence relating to acts and conduct intending to insult the modesty of a person or intruding the privacy of a person. In that case, it was determined that the accused's intent should be judged based on the "reasonable person test," considering the facts and circumstances of the case. The test is what a reasonable person would think about the offender's intent by his action and having regards to the facts and the surrounding context. This court’s findings at the end of the prosecution’s case Issue (i): No use of language for intentional insult with intent to provoke a breach of the peace

This court observed the key points in the Mohd Fairuz bin Ahmad case (supra), as cited by the defence, where the accused was charged under section 509 of the Penal Code. The ruling in that case highlighted that whether the complainant felt insulted or that their modesty had been violated was not entirely relevant or decisive. The sense of modesty varies among individuals and is not something others can predict. If the standard for determining insult to modesty was based solely on the complainant's reaction, it would also have to be proven that the offender was aware of the complainant's particular standard of modesty. Otherwise, it would be nearly impossible to prove that the offender intended to insult the person’s modesty.

In other words, as intent is a mental state, it cannot be directly proven and must be inferred from the facts and circumstances. An inference can only be made if a reasonable person, under the same circumstances, would conclude that the offender intended the insult. Thus, the test is based on what a reasonable person would think of the offender’s intention, considering the facts and the circumstances of the case.

It must be noted here that, in establishing the charge of intentional insult with intent to provoke a breach of the peace, the use of abusive and insulting language is not a trivial offence. Such remarks can lead to serious consequences, potentially causing a breach of peace. If a breach of peace occurs, it is not an exaggeration to suggest that this could result in harm or even loss of life for some individuals (Liau Choy Wan v PP [2018] 10 MLJ

Generally speaking, police patrolling the neighbourhood shall provide a sense of safety and reassurance to most law-abiding citizens. According to Sir Robert Peel (1829) known as the father of modern policing, the police are the public and the public are the police (Sir Robert Peel’s Policing Principles, Law enforcement action partnership website1). The police are an integral part of the community, as the police and the public are essentially the same with the police officers being public who are paid to focus full time on responsibilities that benefit the community. The protection of 1 Sir Robert Peel’s Policing Principles, Law enforcement action partnership < https://lawenforcementactionpartnership.org/peel-policing-principles/>, accessed on 18.10.2024. these shared interests is crucial for the common good in keeping a safer community together.

In this case, the court agreed with the defence that there was no provocation by the accused, Muhammad Rozaimi. During the cross-examination of the prosecution's witnesses, PW4 (Kpl Lisrullah bin Ali) and PW5 (Insp. Nor Azril Bin Marjid), it was confirmed that the accused Muhammad Rozaimi did not physically obstruct PW5’s duties or engage in any action that could cause harm or risk of loss of life to PW5. The accused Muhammad Rozaimi merely stated that reporting the actions of the Royal Malaysian Police to the Malaysian Anti-Corruption Commission. This court found that his words did not amount to provocation, either verbally or physically, toward PW5.

The court is of the considered opinion that the accused’s right to arrest, as enshrined in Article 5(3) of the Federal Constitution, begins at the moment of arrest, even during police investigations. The accused’s remarks, which questioned the police’s method of restraining an individual suggesting that his hand should be held instead of his shoulder, as the individual was not aggressive and no attempt to flee was made at that material time. Additionally, this court must emphasize that the accused Muhammad Rozaimi’s actions fall within his constitutional right to freedom of speech and expression of opinion, as guaranteed under Article 10 of the Federal Constitution. To this court, the accused Muhammad Rozaimi’s comment was merely an expression of opinion, which represents a fundamental aspect of democracy. Since no breach of public peace occurred, it is the responsibility of the police to evaluate situations objectively to ensure that arrest including physically holding someone’s hand, are handled appropriately and adequately after considering public comments.

This court is of considered view that, the police may sometimes view uncooperative citizens as adversaries and act accordingly. Unfortunately, this can lead even neutral or friendly citizens to adopt an unfriendly stance in response. The positive reputation of the police is built upon good public relations, which in turn depends on the public’s trust and confidence in the service’s constructive work. Consistent progress in police service is only achievable when the internal strength of the organization is assured. This includes maintaining high morale, strong camaraderie, loyalty and commitment to the goals of the organization.

It is important for each member of the police service to conduct themselves in both their professional and private lives in a way that earns public trust and confidence (as outlined in "Chapter 14: The Police and the Public" from Municipal Police Administration, Chicago, published for the Institute for Training in Municipal Administration by the International City Managers' Association, accessed via Hein online). A good police ethic is essential and questioning the manner in which a suspect is restrained does not, in itself, constitute an insult that could lead to harm or loss of life to the certain individual. This court believes this case arises from a misunderstanding rather than an intentional provocation. The public’s perception of the police is largely shaped by their understanding of the police’s role and duty to the community.

In summary, Section 504 of the Indian Penal Code (which mirrors section 504 of the Malaysian Penal Code) addresses the act of intentionally insulting a person with the intention of provoking that person to breach the peace, or knowingly using insulting language that is likely to provoke the person to commit a breach of public peace or another offence. Mere abusive language does not automatically fall within the scope of this section, but in certain cases, the words used might amount to intentional insults that provoke the person to commit such an act. If abusive language is used deliberately and is of such a nature that, in the ordinary course of events, it would lead the insulted person to breach the peace or commit an offence under the law.

In other words, the case is not excluded from the purview of section 504 simply because the insulted person did not actually breach the peace or commit an offence, whether due to self-control or fear of the offender. Section 504 likely focuses on the intent of the insult to provoke a breach of peace, regardless of whether the provoked person actually reacts violently.

In determining whether specific abusive language falls under section 504 of the Penal Code, this court must assess the general effect such language would have under ordinary circumstances, not how the particular complainant reacted based on their unique temperament, self-discipline or idiosyncrasies. The key test is whether the language used constitutes an intentional insult likely to provoke a breach of peace, based on its general nature, rather than the specific conduct or disposition of the complainant. as observed in Mohammad Wajid and Another v State of U.P. and Others [2023] 4 MLJ (CRL) 595, Supreme Court of India.

In the present case, this court found that the accused’s questioning of the method by which the police restrained a suspect specifically, commenting on how the police held the suspect’s body part falls squarely within the "freedom of speech and expression" afforded to a layperson under the law. While the police are entrusted with protecting the public, their conduct should not instil fear in those they serve. There is a need for better relations between the police and the public in the country, as the current incident highlights a sensitivity from both sides regarding how policing is perceived and how individuals are treated.

This court urges that the police, as a democratically accountable institution, must focus on serving the public fairly and without prejudice. The public's response will reflect their trust or cynicism toward the law in the country. In the current case, there is no evidence that the accused’s statements insulted the police force or suggested misconduct or abuse of power. Instead, they reflect fair criticism of the method used by the police to restrain the suspect which is also member of the public. This, in itself, does not rise to the level of provocation or intent to breach the peace. Issue (ii): PW5’s bias as complainant and investigating officer 29. Another pertinent factor for this court’s consideration is the defence’s argument that PW5 arrested the accused, Muhammad Rozaimi, on the grounds of interfering with a public servant while investigating the case. This presents a conflict of interest, as the complainant, PW5 was investigating a case in which he himself was involved, raising concerns of bias. The defence argued that PW5, as the Investigating Officer, was biased because he was angry at the accused, Muhammad Rozaimi during the incident. This court agreed with the defence’s submission and the reference to the case of A.V. Bellarmin and Others v V. Santhakumaran Nair, Sub-Inspector, Railway Protection Force, Southern Railway, Nagercoil Junction, Kanyakumari District [2015] 4 MLJ (CRL) 436, held by Madurai Bench of the Madras High Court, which is highly relevant. In that case, the court held: "26. The Code thus does not bar an informant being a police officer. Therefore, the test of bias would come into play depending upon the roles of the Investigation Officer. If the Investigation Officer has involved himself over two distinct and different roles, then certainly the concept of bias would step in. For example, if the Investigation Officer himself is an eyewitness to the occurrence, though he can register a case, he cannot investigate the same further. In other words, an eyewitness to the occurrence cannot don the role of investigator too. He cannot be allowed to wear two hats at the same time. The concept of official and personal bias would come into play, though an officer is expected to act in a fair manner. There may not be any actual bias, but one of reasonable suspicion or likelihood of bias. However, when an officer receives information either orally or otherwise, he is merely registering the cognizable offence, thereafter proceeds to investigate. The recording by the officer is his official duty as that of the investigation. There is no twin contra roles involved. Similar is the case of an officer registering an F.I.R. suo motu based upon a source information. Such registration qua an offence is on a reasonable suspicion. Cases of such a nature would not attract the concept of bias. After all in all official action fairness is presumed."

In light of this, the court emphasizes that it is ultimately for the police officer to determine if there are sufficient grounds to investigate. If a cognizable offence appears to have been committed, the officer may arrest the suspect. Therefore, the officer both investigates and makes the arrest, and the complainant’s involvement does not invalidate the arrest if it was based on lawful grounds, especially involving in the certain operation. However, this court observes that when an officer registers a FIR on his own, the concern is whether the investigation may be unfair or biased.

In the present case, PW5, as the investigating officer, had a duty to conduct a preliminary inquiry to determine whether the allegations made against himself by the accused had merit. The potential for bias is clear, as PW5 was aware of the events and the accused’s statements but was still tasked with investigating the case. Although PW5 was not absolved of his investigative duties, his involvement in both the incident and the investigation introduced a reasonable suspicion of bias. This court refers to Lalita Kumari and Others v Government of U.P. and Others [2012] 2 MLJ (CRL) 525, Supreme Court of India, which highlights that police officers must exercise discretion in deciding whether to investigate based on the seriousness of the information received. In essence, the police are tasked with ensuring fair and transparent investigations in cognizable cases to maintain law and order.

Further, in the case of Sharif Ahmed and Another v. State of Uttar Pradesh and Another [2024] 2 MLJ (CRL) 372, Supreme Court of India, the court emphasized that the purpose of police investigations is to establish the truth and ensure that justice is served by collecting and presenting evidence before the court. Investigations must be conducted fairly to preserve personal liberties and adhere to the rule of law. Whereas, in the case of H.N. Rishbud and Inder Singh v State of Delhi (1954) 2 SCC 934, the court outlined the stages of an investigation, which include visiting the crime scene, gathering evidence, and forming an opinion on whether an offence has been committed. The final step in this process is the submission of a charge sheet or final report. In this connection, in the case of Abhinandan Jha and Others v Dinesh Mishra LNIND 1967 SC 144, it was noted that this final step is contingent on the investigation’s findings and the opinion formed by the officer.

In the present case, this court found that evidence of bias in the investigation conducted by PW5, who had already formed an opinion about the accused’s guilt based on the accused’s statement, “polis takde hak pegang bahu, jika nak tangkap pegang tangan”. The test of bias here is whether a reasonably informed person, fully aware of the facts, would have serious apprehensions of bias. This court found that the accused did not receive a fair investigation or trial, particularly when no evidence of insult or provocation was found in the accused’s statement, which merely reflected freedom of speech and expression under Article 10 of the Federal Constitution. Given the evidence, this court conducted a maximum evaluation of witness credibility and the prosecution’s evidence in totality. As such, this court found that the prosecution had failed to establish a prima facie case against the accused, Muhammad Rozaimi under section 504 of the Penal Code.

Consequently, the accused is acquitted and discharged at the end of the prosecution’s case without his defence being called, as decided in Mat v Public Prosecutor [1963] MLJ 263, ARCJ; Section 180(2), CPC). It would opportune to state, there were material gaps in the prosecution's narrative and the investigation itself was marred by concerns of bias, infringing on the accused’s constitutional rights to a fair trial under Articles 5 and 8 of the Federal Constitution. Case No. MC-83-162-04/2023 (section 332, Penal Code) Prosecution’s submission 35. The prosecution had defined a public servant according to section 21 of the Penal Code, indicating a person who has a duty to prevent offences. The prosecution also referred to sections 39, 319 and 321 of the Penal Code to explain the relevance of voluntarily causing hurt. In the current case, the prosecution must specifically prove the charges against the three accused persons as stated in the above (Muhammad Al Nijam, Muhammad Noor Azroy and Muhammad Zahir) based on the following elements: - a) The accused persons caused pain or physical weakness to the victim; b) The accused persons inflicted pain on the victim with intent or knowledge while the victim was performing his duty as a public servant; and c) The victim is a public servant, specifically a member of the Royal Malaysia Police (PDRM). Defence’s submission 36. In essence, the defence argued that it is unsafe to convict the accused persons on a prima facie case, as there are too many reasonable doubts raised during the cross-examination of the prosecution's witnesses. These doubts include issues with identification, given that the incident took place in a poorly lit area with too many people involved in assaulting PW1. Additionally, there were admissions by PW1 and PW4 that two of the accused, who are in the dock, did nothing and were sitting on a motorcycle, while another accused was never identified by the prosecution's witnesses as one of the individuals who assaulted PW1 before this Honourable Court. This court’s findings at the end of the prosecution’s case Issue (i): Testimony of PW4 37. In evaluating this offence, the primary concern for this court is to assess whether the actions of the three accused persons (Muhammad Al Nijam, Muhammad Noor Azroy and Muhammad Zahir) were intended to prevent PW1 from discharging his duty as a public servant. Based on the oral evidences presented before this court, it was found that Kpl Lisrullah (PW4) who accompanied PW1 to the scene to respond to the disturbance, was not harmed by the accused persons. Furthermore, PW4 confirmed that he recognized the individuals present at the scene because they were villagers from that area. PW4 explained that he and his team regularly patrolled the village area and had been stationed at the local police station for quite some time, which allowed him to recognize the villagers.

Although PW4 was present at the scene, he was not assaulted by any of the men. This court observed that PW4’s close proximity to the events allowed him to observe exactly what had transpired. According to PW4, a group of seven to eight individuals arrived at the scene and participated in the fight. While PW4 could recognize them, he did not know their names. One crucial point to note is that PW4, in open court, confirmed that the accused wearing glasses (Muhammad Zahir) was not present at the scene of the incident and that PW4 could not identify two other accused individuals. However, PW4 did recognize one of the accused persons as the owner of the stall whose glass had been broken.

In the context, PW4 testified that he witnessed PW1 being punched in the face and kicked in the face as well. During cross-examination, PW4 did not agree with the defence’s suggestion that Kpl Ramanan (PW1) was wearing civilian clothing without a police vest. This question was posed by the defence counsel based on the instructions of the accused persons, as reproduced in the following oral evidence before this court: - During cross-examination by the defence counsel “Peguam: S6. Cadangan saya arahan anakguam disebabkan En tidak pakai baju polis, orang-orang yang dituduh ini tidak tahu pun En adalah polis selepas itu? Kemudian baru tahu. SP4: Minta maaf, saya percaya kalau kami datang dalam apa-apa keadaan orang kampung tetap mengenali kami. Peguam: S7. Itu andaian? PW4: Bukan andaian, kami percaya, kami telah bekerja di kawasan itu agak lama, dan kami sering buat rondaan / pemantauan, dan memang ada jumpa orang kampung dan kami percaya mereka memang mengenali kami.”

The next crucial element for this court's consideration is whether PW4, as an eyewitness, is certain about who kicked and punched PW1. PW4 explained that he could not remember because the incident occurred a long time ago. Even during examination by the prosecution, PW4 reiterated the same point, honestly stating that he could not recall all the details leading to the arrest made at the premises in relation to section 504 of the Penal Code, connected to this case under section 332 of the Penal Code. Furthermore, according to PW4, upon arriving at the scene, they encountered an intoxicated Indian man who was being calmed by his family. A few other men arrived, and one of them slapped the Indian man in the face. PW1 and PW4 then attempted to control the situation and calm the men down. Shortly after, the Indian man was taken away by his family in a car, the registration number of which PW4 could not remember.

At that time, both PW1 and PW4 were blamed for allowing the Indian man to escape from the scene, and shortly thereafter, an altercation broke out. PW1 was punched in the face, causing him to fall backward, after which he was assaulted by the men who had gathered at the scene. PW4 clearly saw one of the men kick PW1 in the face as if kicking a ball, but he could not recall who the man was. This court found a significant inconsistency in PW4's testimony. While PW4 claimed to have clearly seen one of the men kick PW1, he also stated that he could not recall who the man was. This raises doubt, particularly since PW4 had earlier testified that he knew the villagers well due to his regular patrols around the area and his familiarity with the local residents. Issue (ii): Testimony of PW1

Of course, this court cannot overlook the evidence provided by the victim, PW1. According to PW1, he was on duty for 24 hours at the material time. Coincidentally, while he had gone home for a meal, he received a call from the station informing him about a fight occurring by the roadside at Air Pasir. PW1 immediately responded to the call. Upon arriving at the scene, there were only the Indian man, his wife, PW1 and his colleague, Kpl Lisrullah (PW4). About 5 to 10 minutes later, three Malay men arrived, visibly angry, claiming that the stall had been damaged. PW1 had confirmed that these three Malay men were not present in court.

The Indian man and the Malay men then began to argue over the damaged stall, while PW1 tried to break up the fight. Shortly after, about five to six more individuals arrived, riding motorcycles. They started making noise, accusing the police of siding with the Indian man as PW1 attempted to calm the situation. In this connection, while PW1 was trying to defuse the tension, the Indian man suddenly started his car and drove away from the scene with his wife. Following this, the group of Malay men raised their voices in anger, accusing PW1 and PW4 of allowing the Indian man to escape.

Thereafter, an old man whom PW1 believed to be the father of one of the Malay men, arrived. PW1 recalled telling the older man, "pak cik, jangan tinggikan suara pak cik. benda kita boleh bincang. kita boleh pergi balai." The old man moved forward, repeating, "ah, sudahlah, sudahlah." At that material time, PW1 remembered placing his hand on the old man’s body to stop him from advancing further. The old man's son, one of the Malay men gathered, then accused PW1 of punching and pushing his father, which prompted him to start the assault by punching PW1. Further, PW1 stated that he was wearing a police vest over a regular shirt at the time. When PW1 was punched, he fell and then five or six men began kicking him.

During cross-examination, the defence posed the same question to PW1, suggesting that the accused claimed PW1 was not wearing a police vest, that the group of Malay men did not know PW1 was a police officer as the men believed PW1 was a friend of the Indian man who had broken the stall’s glass, where PW1 disagreed with the said suggestion. The defence then asked PW1 and PW1 agreed that some of the men involved in the alleged riot were simply sitting on their motorcycles and did not do anything.

Moving ahead, the defence suggested that two of the accused persons present today were merely sitting on their motorcycles. The accused Muhammad Noor Azroy claimed that he was injured in an accident and along with the accused Muhammad Al Nizam, remained on the motorcycle. However, PW1 further explained that while he did see some people sitting on motorcycles, he did not know who they were. This court found this to be a total contradiction in PW1's testimony, as PW1 had previously stated that he could recognize the faces of those who surrounded him and was sure about who had assaulted him. However, by looking at the evidence as a whole, the court could not identify any specific part of PW1's oral testimony where he clearly indicated which of the accused present in court had harmed him on the day of the incident. Issue (iii): Evidences of medical examination and bad identification 47. Based on the evidence presented, this court found that the prosecution has failed to establish that the hurt was caused by the accused persons with the intent to prevent PW1, a public servant, from performing his duty (refer to Ratanlal & Dhirajlal, The Indian Penal Code, 34th edition, Vol. 1, LexisNexis, pg. 2284). This finding is drawn for the following reasons: - a) This court acknowledges that a medical report is not a sine qua non (an essential condition) for establishing an offence under Section 333 of the Penal Code. However, the court has taken into consideration the testimony of Dr Tee (PW3) regarding the injury sustained by PW1 to correlate with the facts presented in PW1's testimony. Whereas, PW3 confirmed that when she examined PW1 on the night of the incident (8.1.2020 at 2200 hours), PW1's condition was found stable where he only sustained external injuries that could be treated in the green zone (non-critical area); b) Dr Tee concluded in her medical examination (P4, Pol. 59) that PW1 was referred to Alor Gajah Hospital and examination findings indicated that there were soft tissue injuries over the left shoulder and chest wall, hematoma over the lower lip and an abrasion wound on the right upper limb. Moreover, PW3 agreed with the defence's suggestion that the abrasion on the PW1’s hand could have been caused by a fall. Logically, if PW1 had been beaten by a group of people, the injuries he sustained would not have been as minor as those observed; c) This court took note of both PW1's and PW4's evidence that they were wearing police vests at the scene. However, the defence counsel, based on instruction from the accused persons, suggested to both PW1 and PW4 that they did not know PW1 was a police officer because he was not wearing a police vest. PW4 responded by stating that, in his belief, the villagers would still recognize them, regardless of the circumstances, as they had been working in the area for a long time, regularly patrolling and frequently interacting with the locals; d) Both PW1 and PW4 testified that they believed the villagers were angry because they thought the police had allowed the Indian man, who had broken the stall's glass, to escape. At this juncture, a material doubt arises for this court: why did the group of men only target PW1, while PW4 was not harmed, despite both being present at the scene together? It was only PW4 who stated that the villagers knew them as police officers because they regularly patrolled the area. This raises doubt as to whether PW1 was recognized as a police officer discharging his duty at the time and therefore it had been failed to be proved by the prosecution. If both were wearing police vests, why was PW4 unharmed and left unscathed while PW1 was attacked? If the villagers truly knew that both were police officers, or if only PW4 was widely recognized as a police officer as PW4 confidently claimed, this court questions why PW1 was the sole target of the assault. Thus, this court ruled that there was no evidence presented by the prosecution to prove that the men knew PW1 was a public servant and that they hurt him with the intent to prevent him from discharging his duty. In contrast, PW4 was able to safely carry out his duty among the same group at the scene; e) Furthermore, another factual situation that raises doubt is where the victim (PW1) was allegedly punched, causing him to fall and be kicked several times by approximately ten people. However, PW4 testified that upon arriving at the scene, there were initially three Malay men present, and shortly afterward, about 5 to 6 more people arrived on motorcycles. In comparison with the investigating officer’s (PW5’s) evidence, during cross- examination, who confirmed that only six individuals were involved in the incident. PW4, who led PW5 to the suspect’s house to apprehend the group gathered there, stated that if PW1 and PW4 had been able to identify all the individuals involved in the assault and specify which parts of PW1’s body were struck, they would have surely gone to arrest everyone involved, which were ten people according to PW1 in the earlier part or eight people according to PW4. However, in court, it became evident that PW4 only recognized the key suspect, went to his house and only arrested the group present at the suspect’s house. The key suspect linked to "Rumah Yusof" could not refute PW1’s testimony where PW1 stated that one son of the old man from the Malay men said, “awak dah tumbuk, awak dah tolak ayah saya” and then initiated the attack by punching PW1. This same suspect, Muhammad Sabeerin bin Md Yusof, had already pleaded guilty in an earlier proceeding along with another co-accused (Mohd Aidel bin Yusop); f) It is this court’s considered view that identifying the specific harm done by one individual to another is crucial, as it allows the accused to respond to the charge and present a proper defence, if any. In the case of PP v Yeo Ek Boon Jeffrey and another matter [2017] SGHC 306, it was held that in the context of an offence under section 332 of the Penal Code, the degree of harm caused refers to the nature and gravity of the injury inflicted on the particular police officer and the consequences to the police in general. The degree of culpability is measured primarily by the manner and motivation behind the offender’s involvement in the criminal act. Reasonably considering this well-established principle, this court concluded that the nature and gravity of the harm caused must be specifically attributed to a particular individual and the specific injury must be clearly established. Articles 5 and 8 of the Federal Constitution guarantee fundamental rights that have a meaningful impact on an individual’s life for ensuring access to justice, the right to a fair trial and equal protection under the law. This courts must uphold and protect these rights (Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750, FC). In gist, if the accused persons can prove that their rights of fair trial have been violated, the accused persons would be entitled to an unconditional released and the charges against them would be dismissed (Yahya Hussein Mohsen Abdulrab v Public Prosecutor [2021] MLJU 1661, FC); g) In the current case, although PW1 claimed he was certain about who assaulted him, his oral testimony did not at any time specifically identify who exactly hit him. Meanwhile, PW4, an independent eyewitness who was on duty with PW1 at the time, admitted that he honestly could not remember all the details. Given PW4’s role as an eyewitness and his proximity to the events, his testimony was highly relevant and must be carefully considered by this court. To summarize, the failure to identify a specific alleged assailant should be a key factor in dismissing the charges against the accused persons. Imprisonment, which results in the deprivation of liberty, must be treated with utmost seriousness, especially when the accused persons were not clearly identified as the perpetrators. The evidences in the current case were not credible enough to justify taking away the individual accused persons’ freedom to life; h) In the current case, PW4, in open court, confirmed that the accused wearing glasses (Muhammad Zahir) was not at the scene of the incident. This testimony is completely contradictory to his earlier evidence during the identification parade (as seen in the identification parade report, P5), which raises doubts about the case being initiated against the accused Muhammad Zahir in the first place. It casts doubt on the reliability of the identification parade evidence given by the eyewitness, PW4; i) In addition, PW1 who was involved in the incident, fell and was surrounded at the time, making it difficult for him to clearly see the faces of the men involved. PW4 also stated that he saw one of the men kicking PW1 in the face as if kicking a ball, but he could no longer recall which man had done so. However, PW1, the victim himself, never specified which accused had caused him harm, only mentioning that "anak pak cik" had started the attack by punching him, but he could not recognize the other men, only stating that he was surrounded. This court carefully assessed the doctor's (PW3’s) evidence, which indicated that PW1 only suffered minor injuries and abrasions, which could have resulted from him falling. Doubts arise as to whether PW1 merely fell or was surrounded during a group fight, as the injuries he sustained would not likely have been so minor if he had been attacked by the group of men in such a manner; j) Besides, both PW1 and PW4 testified that they saw people sitting on a motorcycle at the scene but could not identify who they were. The defence argued that the accused Muhammad Noor Azroy, who was injured in an accident, was sitting on the motorcycle with the accused Muhammad Al Nijam, which fit the situation. This raised further doubt in judging and fully aware that the case against both these accused relied heavily, if not entirely, on the accuracy of the identification evidence provided by the eyewitness (PW4); k) As such, this court recognized that the issue of identifying the accused persons was a key point to deliberate upon. In fact, the defence did not raise any issue concerning the identification parade report (P5). The identification parade evidence should be used to corroborate the substantive evidence given by the witnesses in court regarding the identification of the three accused persons as the perpetrators of the alleged crime. Nevertheless, it is well-established in law that the substantive evidence is the identification made in court (Dorai Pandian a/l Munian & Anor v PP [2009] 4 MLJ 525, CoA). The clear doubt here is that the identification parade evidence (P5) can no longer serve as corroboration for the identification since both PW1 and PW4 failed to recognize the accused persons or could not specify who exactly had harmed PW1; and l) Strictly speaking, none of the accused persons in the dock were positively identified as the assailants who harmed PW1, which conflicted with the identification parade evidence. The unclear identity of the assailant was not proven by the prosecution and significant weaknesses appeared in the identification evidence, both in court and during the identification parade. This court observed that there is a material discrepancy between the evidence given by PW1 and PW4, as well as the eyewitness' dock identification also appeared unreliable. Additionally, the prosecution failed to prove that, at the time of causing harm, PW1 was a public servant engaged in discharging his duty since PW4 was not injured by any of the accused persons at the scene. The rule of caution and prudence applied here, and therefore this court found that PW4’s ability to make a reliable identification was in doubt.

For the foregoing reasons, this court found that the benefit of the doubt should be given to the three accused persons, considering the poor quality of the identification evidence and the significant doubts, especially in light of PW1’s minor injuries. After conducting a maximum evaluation of the entire evidences at the end of the prosecution’s case, this court found that the prosecution had failed to made out a prima facie case against the three accused persons (Muhammad Al Nijam, Muhammad Noor Azroy and Muhammad Zahir) under section 332 of the Penal Code.

This court has undertaken a comprehensive assessment of the prosecution's evidence and finds that it allows for two or more inferences, one of which favours the accused persons. I asked myself: Is the evidence sufficient to convict the accused persons if they choose to remain silent? If the answer is affirmative, then a prima facie case has been made out. However, this evaluation must necessarily involve considering whether any reasonable doubt exists in the prosecution's case. If there is any such doubt, then a prima facie case cannot be established (PP v Azizul bin Abdul Aziz [2010] 7 MLJ 445, HC). Accordingly, each accused person is acquitted and discharged at the end of the prosecution’s case without his defence being called.

Therefore, this court is left with no alternative but to acquit and discharge all the accused persons without calling for their defence in both cases. Dated this 18 October 2024 SGD ----------------------------------- (TEOH SHU YEE) MAGISTRATE MAGISTRATES’ COURT AT ALOR GAJAH PROSECUTION : DPP Puan Sharina Farhana THE ACCUSED : Represented by COUNSEL Mr. Mohd Zulfiqri b Zakaria, Tetuan Zulfiqri Zakaria & Co., Ayer Keroh