Puteri Sarah binti Amirnuddin v MOHAMAD RAZAK BIN MOHD YUSOF @RAMULU (83-3068-8/17)

The accused in this case was charged with an offence punishable under section 506 of Penal Code. The charge proffered against him was as follows: “Bahawa kamu pada 9.8.2017 jam lebih kurang 1130hrs bertempat di Blok 1-9-26 Desa Mentari Jalan PJS 6/5A Petaling Jaya, di dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan, telah melakukan ugutan jenayah dengan mendatangkan ketakutan ke atas Selvarani A/P Selvadurai, KPT: 800505-05-5636 dengan mengeluarkan kata-kata hendak mendatangkan kecederaan kepadanya dan ahli keluarganya. Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 506 Kanun Keseksaan”. Hukuman Jika disabitkan hukuman, penjara dalam tempoh yang boleh sampai dua tahun atau dengan denda atau kedua-duanya.

When the charge was read and explained to him, the accused pleaded not guilty. At the end of the prosecution’s case, this court found that no prima facie case has been made against the accused and had acquitted and discharged the accused.

Dissatisfied with this court’s decision, the learned DPP has filed a Notice of Appeal to the High Court in respect of my decision. Herein are my reasons for doing so. 3

The learned DPP had called in these witnesses to testify: SP1: Selvarani a/p Selvadurai SP2: Sundra Raj a/l Murugan @ Murali SP3: Insp Nur Haidi bin Omar

These exhibits were tendered: P1: Police Report Sg. Way/8032/17 P2: Pictures of the place of the alleged offence P3: Police Report Sg. Way/8048/17 D1: Police Report Sg. Way/008016/17 by the accused.

In essence the learned DPP’s case is based on the complaint lodged by the complainant (SP1). SP1 had testified to this court on 25.6.2018. Produced below is the DPP’s case: “Pada 9.8.2017 jam lebih kurang 11.00 pagi, OKT telah datang ke rumah SP1 dan mengetuk pintu rumah SP1 namun SP1 tidak membuka pintu rumahnya. Sewaktu itu, SP2 turut berada di dalam rumah dan melihat melalui cermin rumah bahawa OKT telah datang ke rumah mereka. Selepas itu, OKT telah bertindak memecahkan pintu rumah SP1 dengan menggunakan helmet lalu masuk ke dalam rumah SP1. Pada waktu itu, OKT juga 4 sedang memegang helmet cuba untuk memukul SP2 dan OKT berkata dalam Bahasa Tamil bahawa OKT mahu memanggil orang gang dan bercakap kotor dalam Bahasa Tamil seperti “Pundek” dan “Pelacur”. SP2 berasa takut apabila OKT mengatakan akan memanggil gang 3 Line kerana mengetahui 3 Line bermaksud gangster. Selepas itu, SP2 telah memberitahu SP1 bahawa OKT telah bercakap busuk-busuk dan memberitahu, “Tak keluar nanti OKT akan bawa 3 line keluar buat apa-apa OKT tidak akan bertanggungjawab”.

SP2, the son of SP1 had also testified in court to corroborate SP1’s testimony.

In this respect, the onus to prove that a prima facie case has been made out, lies on the learned DPP pursuant to s. 173 (h) Criminal Procedure Code. The principles of law with regards to this issue is well established. The testimonies of the prosecution’s witnesses must be given a maximum evaluation. (See cases Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734; [2003] 2 AMR 89 dan Roslan @ Rosli Abdullah v. PP [2009] 1 LNS 875).

In PP v. Mohd Radzi Bin Abu Bakar [2006] 1 CLJ 457 his Lordship Gopal Sri Ram FCJ (as he was then) laid down guidelines and explained how a prima facie case is made which is reproduced as follows: “For the guidance of the courts below, we summarise as follows the steps that should be taken by a trial court at the close of the prosecution’s case: 5

the close of the prosecution’s case, subject to the evidence led by the prosecution in its totality to a maximum evaluation. Carefully scrutinise the credibility of each of the prosecution’s witnesses. Take into account all reasonable inferences that may be drawn from that evidence. If the evidence admits of two or more inferences, then draw the inference that is most favourable to the accused;

(ii) ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me? If the answer to that question is “Yes”, then a prima facie case has been made out and the defence should be called. If the answer is “No” then, a prima facie case has not been made out and the accused should be acquitted;

(iii) after the defence is called, the accused elects to remain silent, then convict;

(iv) after the defence is called, the accused elects to give evidence, then go through the steps set out in Mat v. Public Prosecutor [1963] MLJ 263.

In this regard, this court had placed a maximum evaluation in deciding whether the evidences and the testimonies tendered by the prosecution was successful in proving a prima facie case against the accused.

Criminal intimidation is defined in s 503 as follows: Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. 6

Section 506 of the Penal Code reads as follows: “Punishment for criminal intimidation. Whoever commits the offence of criminal intimidation shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both; and if the threat is to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment for a term which may extend to seven years, or with fine, or with both”.

The essential ingredients of the offence of criminal intimidation under s 503 to be proved by the prosecution are: a) that the accused had uttered words of threat to the complainant (SP1); and b) that the accused had uttered those words with the intention to cause fear and apprehension that the accused will harm SP1 or her family.

The elements of the offence of s. 506 can be seen in a High Court decision of his Lordship Justice Zamani A.Rahim in Zainuddin bin Mahmud v PP [2010] 7 MLJ 789 and the High Court decision of his Lordship Justice Low Hop Bing in Sinnasamy a/l Kaliappan v Public Prosecutor [2005] 7 MLJ 570 7

In order to prove these elements, the learned DPP had called SP1 (the complainant) and SP2 (the complainant’s son) to corroborate SP1’s testimony, along with SP3 who was the Investigating Officer.

In order for us to better appreciate this, we need to see what were the words uttered by the accused. SP1 testified that the accused uttered these words: “Tak keluar nanti OKT akan bawa 3 Line keluar buat apa-apa OKT tidak akan bertanggungjawab”

SP1 testified that upon the utterance of the threat, she felt the apprehension and was traumatized by the threat and SP2 testified that that the accused hurled filthy words at him.

Upon evaluating the threatened words, this court found that the learned DPP have failed to prove that the utterance of such words were a threat. This is because the words used by the Accused in this case is a qualified or conditional threat. Reference is made to a High Court decision of Public Prosecutor v Mohamed Nor [1988] 3 MLJ 119 whereby his Lordship Mustapha Hussain (as he then was) held: “On the threat of the respondent saying ‘jika awak tidak keluar daripada rumah saya, akan ada tumpah darah’, it is quite clear that this is a threat 8 which is far beyond the meaning of reasonable force, but then it is hedged with a qualification, ie ‘jika awak tidak keluar daripada rumah saya’. It is only if the complainant and his two friends refuse to leave the respondent’s house that bloodshed will follow. It cannot be said that the threat had caused any alarm of injury to the complainant unless the complainant adamantly refuses to leave the respondent’s house and only then, it can be said there is this element of alarm.

The Accused merely said those words however it raises doubt as to whether the Accused would have acted and called the so-called 3 line gang to attack the complainant.

For element (b) to be successful, the threatening words must be such that the Accused had the intention to cause fear and apprehension against the complainant. In this regard, the totality of the facts and evidence must be evaluated fully to actually make a finding whether or not the Accused had the intention to cause such fear to the complainant.

Reference is made to Sinnasamy Kaliappan v. PP [2005] 7 MLJ 570 whereby His Lordship Low Hop Bing (as he then was) held that: 9 “The second ingredient ie, the accused's intent by its very nature cannot be proved by direct evidence but may be inferred from all the circumstances of the case”.

This court found that there is no clear threat of fear nor apprehension. For a threat to fall under section 503 and punishable with s.506, there must be threat of actual violence against the person.

Reference is made to a Singapore High Court’s decision which explained how a threat can cause alarm to the complainant. The decision of His Lordship Yong Pung How CJ in Ameer Akbar v Public Prosecutor [1997] 1 SLR 113 where the court held: “Once it was found that the appellant had uttered the alleged words, the next question was whether these words constituted a threat. In Habibullah v State [1961] MPLJ1190, the court held at 1191 that “there should be a clear indication as to what the accused was going to do and the complainant must feel as a reasonable man that the accused was going to convert his words into action”. In my view, the above case shows that the state of mind of the victim is not wholly irrelevant to whether the words uttered constitute a threat. For there to be a threat, the words uttered must be such that they would actually cause the victim, and any reasonable man in the victim’s circumstances, to at least comprehend the words as having the effect of a threat to begin with. Otherwise, such words will not constitute a threat. To this extent, the existence of a threat will depend on the factual matrix of the case – a threat is not issued merely because threatening words per se are used. Obviously, if the words “I will assault you” were uttered when the parties were merry-making and sharing a joke, no threat would have been issued; no one would have comprehended such words as having the effect of a threat. Therefore, all the circumstances of the case have to be considered. But I must emphasise that the victim’s perception of the words must not be confused with whether the victim was actually frightened or not. And, to this extent, the offence of criminal intimidation does not depend on the nerves of the individual 10 being threatened. In my opinion, this must have been what Ong J had in mind when he stated in Lee Yoke Choong v PP [1964] MLJ138 that “[t]he offence of criminal intimidation lies in the intent behind a threat, not in its effect”.

This court found that there was no real fear nor apprehension caused to the complainant. The main factor for this finding was based on the very fact that the complainant lodged her First Information Report (FIR), 6 hours after the incident took place. The incident took place at 11.30 am but she only lodged her report at 5.30pm. In my view, there can no longer exist any fear if one has waited that long to lodge a police report. Fear and apprehension must be instant, and it cannot be said that one is still feeling the fear after 6 hours. In a High Court of Andhra’s decision of Dr. Raman Srikanth vs State Of Telangana Criminal Petition No.6192 of 2014 his Lordship Justice K.G. Shankar quoted:

(a). In KISHAN SINGH v. GURPAL SINGH , it was observed:

Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainants case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. (Vide Sahib Singh v. State of Haryana (1997)

In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. 11 In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (Vide Chandrapal Singh v. Maharaj Singh (1982) 1 SCC 466; State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335; G.Sagar Suri v. State of U.P. (2000) 2 SCC 636; and Gorige Pentaiah v. State of

The Accused on the other hand had lodged a report shortly after he went to the complainant’s house requesting that she vacate the house because of the unchallenged fact that she has not been paying the rental for the house. He lodged his report at 11.45 am.

The court in making a finding whether or not there was intention and real fear caused to the complainant is now left in limbo on how the complainant contended that she was fearful of the Accused’s threatening words but only lodged her report 6 hours after the incident took place. Reference is now made to a High Court decision of PP v Azman Ismail & 12 Another Case [2007] 10 CLJ 469 where His Lordship V.T. Singham (as he then was) held: “[96] It is also important to observe that mere suspicion or probabilities cannot be the basis of conviction. The accused ‘must be’ and not ‘may be’ guilty. (See Shivaji Sahabrad Bobada v. State of Maharashtra AIR [1973] Cr. L.J 1783; PP v. Saimin & Ors [1971] 2 MLJ 16). A case governed by circumstantial evidence cannot be based on circumstances indicating that the prosecution case is quite likely to be true or may be true but it must be true. (See PP v. Saimin & Ors [1971] 2 MLJ 16). In the instant case, as stated above evidence produced by the prosecution may tend to deepen suspicion but surely it does not go to prove the guilt of the accused persons. It is also important that the court must not be influenced by unfounded suspicion. (See Prasannamayi Debi v. Baikunthanath Chattoraj AIR [1922] Cal. 260 at 266). [97] Suspicion however grave cannot take the place of positive proof. (See Palvinder kaur v. State 1952 SC 354). The sea of suspicion has no shore and the court that embarks upon it without a rudder and compass. (See Monir’s Law of Evidence). In fact, the testimony of PW37 is clouded with grave suspicion when considering the evidence as a whole and that of the evidence of PW27 in material particulars and so far as the reliability of PW37’s evidence is concerned. This court wish to stress that a stringent rule of proof in a criminal case especially on a serious charge of murder which has been framed against accused person cannot be relaxed and the court cannot act on pure surmise. This deviation from the strict standard of proof or lesser degree cannot be compromised as a supplement to a weak and disintegrated case for the prosecution.”

Subsequently, the court found that the words uttered as per the charge was not directed to the complainant but it was directed to SP2. SP2 further 13 testified that the OKT did not utter any words to her, and when he uttered the threatening words, the complainant was in her room. This can be seen from his testimony: “S: Lelaki yang kamu Nampak tu ada dalam Mahkamah hari ini? Ada Di mana? Di dalam kandang M: Mahkamah merekodkan pengecaman okt oleh SP2 Lepas tu? Saya tanya kenapa nak buka pintu, lepastu dia terus mula untuk pecah rumah pintu saya. Pecah macam mana? Itu saya tidak tahu, dia tumbuk atau tendang tak Nampak sebab dia berdiri luar. Tapi sudah pecah kemudian? Dia masuk lepas tu dia pegang helmet cuba untuk pukul saya. Dia cakap bahasa Tamil Dia cakap apa? Dia mahu panggil orang gang Ada sesiapa lagi dalam rumah? Saya dan ibu Dia tengah buat apa? Tidur dalam blik Further: 14 “S: Ibu kamu nama apa? Selvarani ap/ selvadorai ada lelaki itu cakap apa-apa pada ibu kamu?

As such this court found that the complainant’s testimony to be questionable because she was not at the place when the words were uttered. She was in her room as testified by her son.

The court in this case, had made maximum evaluation towards the evidences tendered by the learned prosecutor as per the decision in Balachandran and found that the prosecution had failed to prove a prima facie case against the Accused. The Accused was thus acquitted and discharged.

My decision was founded on the reasons provided above. Dated: 8th January 2019 ............T.T…………. (NURSHAHIRA HJ ABDUL SALIM) Magistrate Magistrate’s Court 4 Petaling Jaya 15 Pendakwaraya : Puteri Sarah binti Amirnuddin Timbalan Pendakwaraya Jabatan Peguam Negara Cawangan Negeri Selangor. Peguambela OKT : YS Chong Peguambela & Peguamcara 22, Jalan SS1/11, Kampung Tunku