RAJAN A/L PANNERSELVAM v Pendakwa Raya (BL-41S-1-01/2025)

GANESAN A/L GENGAN (KPT:910115-10-5869) ... PERAYU-PERAYU LAWAN ... RESPONDEN PENDAKWARAYA (didengar bersama) DALAM MAHKAMAH TINGGI MALAYA DI KLANG DALAM NEGERI SELANGOR DARUL EHSAN RAYUAN JENAYAH NO. BL-41S-1-01/2025 ANTARA RAJAN A/L PANNERSELVAM (KPT: 850219-14-6583) ... PERAYU LAWAN PENDAKWARAYA ... RESPONDEN (Dalam Mahkamah Sesyen di Klang Dalam Negeri Selangor Darul Ehsan Kes Tangkap No: BL-62RS-60-12/2021 Pendakwaraya lawan

Rajan a/l Pannerselvam

Ganesan a/l Gengan didengar bersama Dalam Mahkamah Sesyen di Klang Dalam Negeri Selangor Darul Ehsan Kes Tangkap No: BL-83-3361-12/2021 Pendakwaraya lawan Rajan a/l Pannerselvam) GROUNDS OF JUDGMENT Introduction [1] These are two appeals namely-

in Rayuan Jenayah No. BL-425-1-01/2025, the Appellants are appealing against the decision of the learned Sessions Court Judge ("SCJ") dated 23.1.2025 convicting and sentencing them under s. 329 of the Penal Code ("PC"); and

in Rayuan Jenayah No. BL-41S-1-01/2025, the Appellant is appealing against the decision of the learned Sessions Court Judge ("SCJ") dated 23.1.2025 convicting and sentencing him under s. 323 of the PC. Brief background of the prosecution's case [2] On 7.12.2021 at approximately 5:30 a.m., Nor Hamidi bin Abdul Wahab ("SP1") was driving a Proton Wira bearing registration number WJM 1482 along the flyover at Jalan Meru, Klang, when the vehicle suddenly experienced a mechanical breakdown. Consequently, he stopped the vehicle at the side of the road. [3] Shortly thereafter, three (3) unidentified Indian men arrived in a grey Perodua Myvi bearing registration number JMQ 3871 and approached SP1 to ask what was happening. [4] When SP1 said that his vehicle's engine could not be ignited, one of the men attempted to jump-start SP1's vehicle, but to no avail. Concurrently, SP1 observed the other two men ransacking his vehicle rear boot as if searching for valuables. The man who had attempted to jump-start the car then approached SP1 and claimed that the vehicle had run out of fuel, adding that he was in possession of a spare battery and offered to replace SP1's battery, subject to a payment of RM500.00. Suddenly, SP1 noticed the man had already removed his car battery and set the 'new' one on the ground. Realizing that the man's battery was actually old, SP1 stated that he did not want to buy it. [5] SP1 then opened his wallet and retrieved a sum of RM160.00, intending to hand it to the man to purchase fuel for him. All of a sudden, the man snatched the money from his hand. When SP1 produced his mobile phone to take photographs of the men's vehicle, one of the individuals who had been ransacking the rear boot of his car punched SP1 and attempted to seize his mobile phone. SP1 then ran behind his car to signal passing vehicles for help. The men immediately fled the scene, taking SP1's car battery with them. SP1 subsequently checked his car boot and found that his backpack, which contained a snooker cue, was missing. [6] Later, at approximately 2:38 p.m., on the same day, SP1 lodged a police report regarding the incident. [7] On 14.12.2021 at approximately 4:20 p.m., SP1 attended an identification parade at the Klang Utara District Police Headquarters. During the parade, SP1 positively identified the $ 1^{\mathrm{st}} $ Appellant as the individual who had punched him and the $ 2^{\mathrm{nd}} $ Appellant as the person who had snatched his money. [8] Consequently, the Appellants were preferred with the following charge: Pertuduhan Pindaan kes BL-62RS-60-12/2021: Bahawa kamu pada 07.12.2021 jam lebih kurang 5.30 pagi bersama-sama seorang lagi yang masih bebas, bertempat di Jalan Meru, di dalam Daerah Klang, dalam Negeri Selangor, dengan niat bersama telah melakukan rompakan berkumpulan terhadap harta: [1] kayu snooker bernilai RM800; [2] wang tunai RM160; dan [3] bateri kereta, milik Nor Hamidi bin Abd Wahab no. KPT: 730927-05-5395. Dengan itu, kamu telah melakukan satu kesalahan di bawah seksyen 395 Kanun Keseksaan. Hukuman: Penjara selama tempoh boleh sampai 20 tahun dan bolehlah juga dikenakan sebatan. [9] Concurrently, the $ 1^{\mathrm{st}} $ Appellant was preferred with an additional charge, which reads as follows: Pertuduhan kes BL-83-3361-12/2021: Bahawa kamu bersama-sama seorang lagi yang masih bebas, pada 07.12.2021 jam lebih kurang 5.30 pagi, bertempat di Jalan Meru, di dalam Daerah Klang, dalam Negeri Selangor, didapati dengan sengaja telah menyebabkan kecederaan ke atas Nor Hamidi bin Abd Wahab no. KPT: 730927-05-5395. Oleh yang demikian, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 323 Kanun Keseksaan. Hukuman: Penjara selama tempoh yang boleh sampai setahun atau dengan denda yang boleh sampai RM2,000 atau dengan kedua-duanya. [10] All charges were tried together, with the Appellants pleading not guilty to all counts. [11] At the conclusion of a full trial, on 23.1.2025, the learned SCJ convicted the Appellants on all counts and imposed the following sentences:

for Case BL-62RS-60-12/2021: the Appellants were sentenced to seven (7) years' imprisonment, to be served from the date of sentencing; and

for Case BL-83-3361-12/2021: the $ 1^{\mathrm{st}} $ Appellant was sentenced to one (1) year's imprisonment, to be served from the date of sentencing, and to run concurrently with the imprisonment term in Case No. BL-62RS-60-12/2021. [12] Dissatisfied with the decision, the Appellants appealed against their convictions and sentences. The role of the appellate court [13] In the oft-quoted case of Herchun Singh v. PP [1969] CLJU 52; [1969] 2 MLJ 209, Ong Hock Thye CJM speaking for the Federal Court held that an appellate court should be slow in disturbing such finding of fact arrived at by the judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding. [14] Gopal Sri Ram HMR (as he then was) when delivering the judgment of the Court of Appeal in Mohd Johi Said v. PP [2005] 1 CLJ 389 said that the duty of the appellate court extends beyond merely evaluating whether the trial judge was plainly wrong in arriving at his decision but the court must satisfy itself that the conviction remains safe. The Lordship added-Unlike civil appeals, where the appellant carries the burden of showing that the judge at first instance went wrong, in a criminal case the duty of the court is to consider whether the conviction is right. The correct approach is therefore not whether the decision is wrong but whether the conviction is safe. See, Mohammad Husain v. Emperor AIR [1945] Nag 441; Zahari bin Yeop Baai v. PP [1977] 1 LNS 162; [1980] 1 MLJ 160. That question, on the present facts, must receive a negative response." [15] In light of the above, it is incumbent upon this Court, as an appellate court to determine whether the convictions of the Appellants on the two charges are safe. Whether the Appellants' defence is a bare denial [16] The Appellants argue that the learned SCJ erred in finding that their defence was a bare denial. On the contrary, the Appellants had consistently maintained their defence since the prosecution stage, expressly asserting that the offences were committed by the third individual working as a foreman who remains at large. [17] On this issue, the learned SCJ in her GOJ stated- [20] Naratif kes Pembelaan telah dirumuskan oleh pihak Pendakwaan sepertimana di perenggan 3.1.1 sehingga 3.1.16 di dalan hujahan bertulis Timnbalan Pendakwaraya terpelajar (rujuk mukasurat 9 sehinga 11 dalam Lampiran 51). Setelah meneliti hujahan kedua dua belah pihak, Mahkamah ini bersetuju dengan hujahan Timbalan Pendakwaraya terpelajar bahawa pembelaan yang dikemukakan oleh OKT-OKT adalah penafian semata-mata. Keterangan OKT-OKT didapati gagal menimbulkan sebarang keraguan yang munasabah terhadap kes pihak Pendakwaan. OKT-OKT hanya memberikan penafian dengan mengatakan “foreman” yang jumper dan mengeluarkan bateri kereta milik pengadu dan "foreman" juga adalah orang yang mencederakan mangsa. Walaupun OKT-OKT memberi keterangan bahawa "foreman" adalah kenalan mereka namun nama foreman tersebut tidak diketahui oleh mereka dan OKT-OKT juga gagal memberi Kerjasama untuk membantu siasatan bagi menangkap "foreman" tersebut. OKT-OKT juga saling memberi keterangan bercanggah mengenai siapa yang memandu kereta Myvi JMQ 3871 semasa kejadian kerana keterangan OKT Rajan di Mahkamah mengatakan OKT Ganesan yang memandu tetapi keterangan OKT Ganesan pula mengatakan OKT Rajan yang memandu. Oleh itu, Mahkamah ini mendapati keterangan OKT-OKT gagal menimbulkan sebarang keraguan yang munasabah dan juga tidak disokong oleh keterangan lisan yang lain atau keterangan dokumen. Oleh itu, OKT telah didapati bersalah dan disabitkan dengan kesemua pertuduhan. [18] A review of the notes of evidence confirms that the Appellants, in their respective testimonies, denied being the perpetrators who had assaulted SP1 and stolen the vehicle battery. On the contrary, their defence as summarised by their learned counsel is as follows: Pada lebih kurang jam 5.30 pagi semasa menghala ke arah Meru, "foreman" telah mengarahkan OKT1 berhenti di tepi jalan kerana melihat seorang lelaki (SP1) sedang tidur dalam kereta Wira Proton nombor pendaftaran WJM 1482 dengan dipasang lampu kecemasan. OKT1 telah berhentikan keretanya di hadapan kereta Wira tersebut. “foreman” telah berjalan ke arah kereta Wira tersebut manakala OKT1 dan OKT2 duduk di dalam kereta. Selang beberapa minit, "foreman" kembali ke kereta Myvi dan meminta OKT1 meminjamkan jumper bagi tujuan menghidupkan kereta Wira. OKT1 memaklumkan tiada jumper di dalam keretanya. Semasa "foreman" pergi semula ke kereta Wira, OKT1 melihat SP1 telah keluar dari keretanya. OKT1 juga melihat "foreman" pergi ke bahagian belakang kereta Wira tersebut dan menyelongkar bonet kereta. Kemudian "foreman" telah mengarahkan OKT1 untuk memusingkan kereta Myvi supaya mengahadap kereta Wira bagi tujuan jumper. Setelah memusingkan kereta, OKT1 dan OKT2 mendengar bunyi bising dari luar kereta dan mendapati bunyi bising tersebut adalah akibat pertengkaran mulut antara SP1 dan "foreman". OKT1 dan OKT2 telah melihat kejadian tolak menolak di mana "foreman" telah menolak pipi sebelah kiri SP1. OKT1 dan OKT2 turun dari kereta dan meleraikan pertengkaran antara SP1 dan "foreman" dan kemudian OKT1 dan OKT2 meminta maaf kepada SP1 atas tindakan "foreman" itu. OKT1 dan OKT2 telah membawa "foreman" beredar daripada lokasi kejadian. Kemudian mereka dimaklumkan oleh "foreman" bahawa punca pertengkaran adalah daripada upah yang diminta oleh "foreman" daripada SP1 bagi tujuan pembaikan kereta Wira. OKT1 dan OKT2 menyatakan mereka tidak menyelongkar kereta Wira SP1 dan tidak meminta wang daripada SP1. OKT1 dan OKT2 menyatakan mereka tidak mengambil bateri kereta Wira ataupun kayu snooker daripada kereta Wira. OKT1 dan OKT2 menyatakan mereka tidak ada menampar SP1, tetapi "foreman" yang menolak pipi sebelah kiri SP1. Pada 13.12.2021, kedua-dua OKT telah ditangkap oleh pihak polis. [19] Upon perusal of the entire evidence, I agree with the learned SCJ that the narrative brought by the Appellants was wholly unsupported by any credible evidence. Indeed, this version raises more questions than answers, particularly as neither Appellant could provide even the name of the said "foreman". There is no reasonable explanation, and indeed it defies logic, as to why the Appellants failed to reveal the individual's name, both during the trial and throughout the course of the police investigation. [20] Furthermore, I observe that the credibility of the Appellants themselves is highly suspect, rendering their testimony fundamentally unreliable. This is clear from the record where the Appellants traded mutual accusations regarding who was actually driving the Perodua Myvi on the night in question. Given that such a fundamental question could not be answered with any degree of certainty, I concur with the approach of the learned SCJ to treat the evidence adduced by the Appellants with extreme caution. [21] In the upshot, I agree with that the learned SCJ's finding that the Appellants' defence is a bare denial without any supporting evidence. As such, I agree with the view of Yusoff Mohamed J (as he then was) in PP v. Ling Tee Huah [1980] CLJU 212; [1980] 1 LNS 212 that a mere denial without other proof to reasonably dislodge the prosecution's evidence is not sufficient. Whether there was no proper investigation done [22] The Appellants argue that the learned SCJ failed to take into consideration that the investigation was not properly done. The Appellants contend that Insp. Mohd Khairolzaman bin Mohd Sapian ("SP7") who is the investigation Officer of the case-

failed to state the place of incident;

failed to verify that the Proton Wira bearing registration number WJM 1482 belongs to SP1;

failed to identify who sent SP1 back home;

failed to investigate why there was a two-day delay before SP1 received medical treatment;

failed to conduct identification parade;

failed to ensure all suspects in the identification parade wore the same attire;

failed to send the Perodua Myvi bearing registration number JMQ 3871 for forensic test;

failed to confiscated SP1's mobile phone;

failed to establish the identity or secure the arrest of the third person involved in the alleged offence;

failed to investigate the Appellants' roles in the alleged robbery;

failed to conduct a thorough and objective investigation to determine whether the Appellants were genuinely involved in the alleged robbery; and

(I) failed to investigate the Appellants' defence. [23] Regarding this issue, I find that SP1's testimony concerning the locus delicti and his identification of the Appellants as the actual perpetrators was clear, cogent and consistent. SP1's lengthy, close-range interaction with the unmasked Appellants enabled him to vividly recall their facial features. Consequently, peripheral issues, such as, who escorted SP1 home, the mechanical verification of the two vehicles, the two-day delay in seeking medical attention and SP7's failure to seize SP1's mobile phone, in my view, are mere administrative irregularities that do not vitiate the integrity of the overall police investigation or render it fatal to the prosecution's case. Furthermore, the Appellants conceded that they did not disclose the identity or any particulars of the alleged foreman to SP7 during the investigation stage. Absent this foundational information, the Appellants cannot now be heard to complain or fault SP7 for a purported failure to investigate and apprehend the said individual. Thus, I find the Appellants' argument on this issue is without merit. Whether that the learned SCJ failed to consider evidence adduced by the Appellants [24] The Appellants contend that the learned SCJ failed to subject the entire corpus of evidence adduced by the defence to a maximum evaluation. The learned SCJ instead leaped to a premature conclusion, finding the Appellants guilty as charged without balanced judicial appreciation. [25] Regarding this issue, as I have observed earlier and at the risk of repetition, the Appellants' defence amounts to a bare denial, entirely unsupported by any cogent evidence. Furthermore, the testimony of SP1 explicitly refutes the Appellants' assertion that the alleged foreman was the sole individual who assaulted him. On the contrary, SP1 positively identified the 1st Appellant as the person who punched him, and the 2nd Appellant as the perpetrator who took his snooker cue and vehicle battery. SP1 also maintained under rigorous cross-examination that both Appellants, acting in concert with the said foreman, were actively involved in the robbery. Hence, the Appellants' submission that that the learned SCJ failed to peruse all evidence adduced by them, is untenable. Whether the identification parade was defective [26] The Appellants contend that the identification parade attended by SP1 was fundamentally defective. It was submitted by the Appellants that SP1 not only failed to recall the exact number of participants present during the identification parade, but was also unable to state their race. Consequently, the Appellants submit that the learned SCJ failed to take cognizance of the fact that SP1 could not positively identify the alleged perpetrators. [27] In this connection, I am guided by the Federal Court decision in Duis Akim & Ors v. PP [2013] 9 CLJ 692; [2014] 1 MLJ 49, where Richard Malanjum CJSS (as he then was) highlighted the pertinent guidelines on the identification parade where he said- [47] To begin it is in the forefront of our minds the Turnbull guidelines (R v. Turnbull & Ors [1976] 3 All ER 549) as succinctly summarised in the case of Heng Aik Ren Thomas v. PP [1998] 3 SLR(R) 142. Delivering judgment for the Singapore Court of Appeal M Karthigesu JA said this at paras. 33-35 of the judgment: Although the Turnbull guidelines were drafted to assist a trial judge in correctly directing the jury, the principles which were enunciated in it are of equal relevance to our criminal trial system. In adapting the Turnbull guidelines for our local system, we have reworked the Turnbull guidelines into the following three-step test. The first question which a judge should ask when encountering a criminal case where there is identification evidence, is whether the case against the accused depends wholly or substantially on the correctness of the identification evidence which is alleged by the Defence to be mistaken. If so, the second question should be this. Is the identification evidence of good quality, taking into account the circumstances in which the identification by the witness was made? A non-exhaustive list of factors which could be considered include the length of time that the witness observed the accused, the distance at which the observation was made, the presence of obstructions in the way of the observation, the number of times the witness had seen the accused, the frequency with which the witness saw the accused, the presence of any special reasons for the witness to remember the accused, the length of time which had elapsed between the original observation and the subsequent identification to the police and the presence of material discrepancies between the description of the accused as given by the witness and the actual appearance of the accused. In considering the circumstances in which the identification was made, the judge should take note of any specific weaknesses in the identification evidence. If after evaluation of the identification evidence, the judge is satisfied that the quality of the identification is good, he may then go on to safely assess the value of the identification evidence. Where the quality of the identification evidence is poor, the judge should go on to ask the third question. Is there in any other evidence which goes to support the correctness of the identification. If the judge is unable to find other supporting evidence for the identification evidence, he should then be mindful that a conviction which relies on such poor identification evidence would be unsafe. The supporting evidence need not be corroboration evidence of the kind required in R v. Baskerville [1916] 2 KB 658. What the supporting evidence has to be is evidence that makes the judge sure that there was no mistake in the identification. (emphasis added). We agree with the summary of the guidelines. (See also: Zulkifli @ Sakun Ahmad Endin Chun lwn. PP [2012] CLJU 435; [2012] 1 LNS 435; [2013] 1 MLJ 733; Dorai Pandian Munian & Anor v. PP [2012] 10 CLJ 22; [2009] 4 MLJ 525). [28] In her grounds of judgment, on the issue of identification parade, the learned SCJ wrote this- [14] Peguambela terpelajar juga menimbulkan isu bahawa mangsa tidak menghadiri proses kawad cam, keterangan mangsa yang diragui berkaitan proses kawad cam dan juga soal balas terhadap saksi SP7 yang mengakui bahawa tiada pengecaman khusus kepada OKT-OKT seperti bentuk badan, warna kulit dan parut pada muka semasa kawad cam diadakan, Mahkamah ini memutuskan bahawa tanpa laporan kawad cam sekalipun, Mahkamah tetap berpuas hati dengan pengecaman oleh mangsa di bawah keterangan bersumpah terhadap OKT-OKT di dalam Mahkamah Terbuka. In adalah kerana walaupun tanpa kawad cam, Mahkamah masih boleh bergantung kepada keterangan mangsa mengenai pengecaman terhadap OKT-OKT di dalam Mahkamah. Mahkamah ini merujuk kepada kes Arumugam s/o Muthusamy v PP [1998] 3 MLJ 73 yang mana Mahkamah Persekutuan telah memutuskan seperti berikut: "Identification of an accused for the first time in court at the trial is undesireable and it would be a good practice to hold an identification parade. However, to hold that an identification parade must, in all circumstances, be conducted in order to sustain a conviction would be too stringent. It would, therefore depend on the particular facts and circumstances of each case whether to hold such a parade. Further, the court stated in the present case, the trial Magistrate has not totally failed to comply with the guidelines in R v Turnbull. Although it would have been prudent to hold an identification parade, having regard to the cumulative effect on the evidence of both the prosecution and the defence as a whole, there was no failure of justice nor were there any grounds for contending that the conviction was unsatisfactory or unsafe. Further the court stated that there was no reason to interfere with the trial Magistrate's finding, which was affirmed by the High Court." [15] Mahkamah ini juga telah memberi amaran kepada diri sendiri bahawa kepatuhan untuk Mahkamah ini berhati-hati di dalam mempertimbangkan keterangan berkenaan pengecaman terhadap OKT-OKT. Mahkamah ini merujuk kepada kes R v Turnbull & Ors [1976] 3 All ER 539 yang memutuskan seperti berikut: "First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance upon the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need for such a warning, and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such can all be mistaken. Provided this is done in clear terms, the judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution has reason to believe that there is such a material discrepancy, they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such description, the prosecution should supply them. Finally, he should remind the jury of any specific weakness which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made." [16] Mahkamah ini mendapati keterangan mangsa adalah sentiasa konsisten di sepanjang perbicaraan bahawa beliau dapat mengecam OKT-OKT. Jadi, berdasarkan alasan-alasan dan keskes yang dirujuk di atas, Mahkamah ini memutuskan bahawa pengecaman mangsa terhadap OKT-OKT di dalam Mahkamah adalah memuaskan (desireable). [29] Premised on the observations of the learned SCJ, I concur that in the present case, the identification parade served merely to corroborate the identity of the Appellants. In short, even if the identification parade were to be completely disregarded, SP1's dock identification and overall evidence concerning the identities of the Appellants remained untainted, consistent, and safe to rely upon. As I have observed earlier, the facts that the Appellants were not wearing face masks, coupled with the close-range conversation and the prolonged duration of the interaction, constitute cogent evidence that SP1 was fully capable of vividly recalling the Appellants' features. Whether the learned SCJ failed to consider the information leading to discovery [30] The Appellants contend that the learned SCJ failed to appreciate that no information was recorded by Insp. Muhammad Taufik bin Sahadom ("SP5") pursuant to s. 27 of the Evidence Act 1950 ("EA") regarding the discovery of the Perodua Myvi bearing registration number JMQ 3871. Consequently, they submit that due to this noncompliance, any information concerning the vehicle, particularly evidence linking it to the Appellants, is legally inadmissible. [31] Upon a review of the GOJ, I agree with the Appellants' contention that the learned SCJ did not explicitly delve into this specific issue. However, the learned SCJ adequately explained her acceptance of the Perodua Myvi's involvement, noting that the existence and presence of the vehicle were never denied by the Appellants themselves. She wrote- [11] Naratif fakta kes pihak Pendakwaan telah diterangkan dengan jelas di dalam hujahan bertulis Timbalan Pendakwaraya terpelajar sepertimana di peranggan 10 sehingga 22 (rujuk mukasurat 6 sehingga 8 di dalam Lampiran 48). Mahkamah ini telah meneliti keterangan mangsa (SP1) di Mahkamah semasa perbicaraan penuh dan bersetuju dengan hujahan Timbalan Pendakwaraya terpelajar bahawa mangsa telah melihat dengan jelas muka OKT-OKT semasa berada di tempat kejadian kerana OKT-OKT tidak memakai apa-apa penghalang muka serta tempat kejadian turut dibantu oleh cahaya lampu. Pengecaman oleh-mangsa terhadap OKT-OKT juga melibatkan tempoh masa yang lama iaitu lebihkurang 30 minit kerana daripada keterangan mangsa, terdapat perbualan atau komunikasi yang dilakukan antara mangsa dengan OKT-OKT dan ianya berlaku dalam jarak yang sangat dekat. Mangsa juga telah ditumbuk oleh OKT bernama Rajan. Daripada keterangan mangsa jelas bahawa komunikasi antara mangsa dan OKT-OKT telah berlaku daripada perbuatan jumper untuk bateri kereta Myvi ke kereta Wira dan juga tawaran berjumlah RM500 untuk mengeluarkan bateri kereta sehinggalah OKT ditumbuk da barang-barang milik OKT dibawa lari. Jadi, Mahkamah berpuas hati bahawa pengecaman mangsa terhadap OKT-OKT selama 30 minit tersebut adalah positif. Mahkamah juga mendapati OKT-OKT tidak pernah mempertikaikan keberadaan OKT-OKT di tempat kejadian dengan menaiki kenderaan Myvi no. pendaftaran JMQ 3871. Maka keterangan-keterangan berkaitan isu tempat kejadian dan kenderaan Myvi yang diutarakan oleh peguambela terpelajar bukanlah satu isu yang boleh menjejaskan kes pihak Pendakwaan. [32] In view of the foregoing, I concur with the finding of the learned SCJ that the admission of the evidence regarding the Perodua Myvi occasioned no prejudice to the Appellants. The Appellants' implied admission as to their usage of the Perodua Myvi is materially corroborated by the direct testimony of SP1, who visually observed them arriving at the locus delicti in the said vehicle. Hence, I find the Appellants' argument on the information leading to the discovery of the Perodua Myvi, is a non-issue. Whether the learned SCJ erred in failing to consider that the FIR was incomplete [33] The Appellants contend that the learned SCJ erred in law and fact in failing to consider that the police report made by SP1 was incomplete and ambiguous. They aver that some of obvious omissions in the report were-

the registration number of the vehicle used by SP1, given that in the primary police report, he merely declared that he was driving a Proton Wira;

the distinct physical attributes or defining characteristics of the Indian male individuals who allegedly assaulted SP1 and stole his vehicle battery and snooker cue;

the specific classification, make, or descriptions of the car battery and snooker cue that were the subject matter of the alleged robbery; and

the injuries sustained by SP1. [34] The Appellants further submit that the failure to disclose these material particulars in SP1's police report creates a fatal gap in the prosecution's narrative, thereby raising a reasonable doubt as to whether the alleged robbery ever occurred. [35] At this juncture, it is instructive the case of Teo Siaw Peng v. PP [1993] 3 CLJ 412 where it was stated by Richard Malanjum J (as he then was) in the following passage: With regard to the issue of failure to consider the First Information Report (Ex. P1) in relation to the evidence of PW1 I can only conclude that this is a misapprehension on the purpose of a First Information Report. It is a settled law that a First Information Report is not a substantive evidence to prove a fact. At most it is of corroborative value. (See:Tan Cheng Kooi & Anor. v. PP [1972] CLJU 146; [1972] 1 LNS 146[1972] 2 MLJ 115). Further, in the present case the First Information Report (Ex. P1) was tendered yet from the Appeal Record I find no cross-examination of PW1 on (Ex. P1) by the learned defence Counsel. No adverse inference should therefore be invoked. In fact the content of (Ex. P1) does not entirely exclude the appellant as the person being in possession of a parang. Further, PW1 did say in his evidence that when he opened the door he saw the appellant and his friends sitting on the five-foot way. He then telephoned the Police. I find therefore no merit on this complaint as well. [36] Balia Yusof Wahi JCA (as he then was) in Gobinath Reddy a/l Gopal v. Public Prosecutor [2014] 5 CLJ 275; [2014] 1 MLJ 446 in delivering the judgment of the Court of Appeal cited a passage from the Sohoni's Code of Criminal Procedure $ (1 6^{\mathrm{th}} $ edn., vol. 1 p. 750) as follows: It is a mistake to believe that person cannot be the accused unless his name appears in the first information report. The provisions of the Code lay down no such stipulation. All that is required for purpose of this section is that there should be clear, definite information about the commission of a cognizable offence to set the investigation machinery in motion. Further, the information required need not contain the circumstances of the commission of the offence, nor the names of the offenders or the witnesses, for the main purpose of investigation is to ascertain these matters... The first information report is not an Encyclopaedia. It is not the beginning and ending of every case. It is only a complaint to set the affairs of law and or in motion. It is only at the investigation stage that all the details can be gathered and filled up. But it cannot be said that omissions in the first information report would always be of no significance. The report is not substantive evidence and omissions in it will not ipso facto lead to the case being thrown out. But it is a piece of corroborative evidence; omissions in it will, other things being the same, deprive the prosecution of the most valuable corroboration and thereby make the story suspicious. When a first information report contains an omission as to an important fact relied upon by the prosecution, the omission is important and the absence of any other evidence, the Court may in a given case refuse to consider the evidence of the informant on that fact because of such omission. For a correct appraisal of the effect of omission as contradicting the informant it is essential to keep in view the circumstances in which the report was lodged. For instance, an omission in a report hurriedly lodged under the press of events should not have the same significance as one in a report lodged after cool calculation. [37] It is clear from the established authorities that a police report which stands a first information report is not an encyclopaedia expected to contain a meticulous narration of every detail. Its primary function is to set the machinery of criminal investigation into motion. The critical determinant is whether the information provided within the report is sufficient to enable the police to embark upon an investigation, a threshold which has undeniably been met in the present case notwithstanding any omission of minor details. Whether all elements for conviction under ss. 395 and 323 were proven [38] The Appellants contend that the learned SCJ erred in law and/or in fact in holding that the prosecution had proved all the essential elements of the charges under ss. 395 and 323 of the PC. It was submitted by the Appellant that the prosecution failed to establish the foundational matrix of the offences, specifically concerning the identification of the perpetrators, the involvement of the vehicles and the identity of the allegedly stolen properties. [39] With regard to this issue, I concur with the finding of the learned SCJ that the prosecution has successfully proven all the essential ingredients of the charges under those sections beyond a reasonable doubt. The identity of the Appellants as the perpetrators who robbed and assaulted SP1, alongside the injuries sustained by SP1, which were medically verified by Dr. Chong Jing En (SP6), were established as matters of fact. Similarly, the theft of the subject properties, namely the vehicle battery and the snooker cue, was clearly confirmed through the testimony of SP1, notwithstanding that the items remain unrecovered. Consequently, I am satisfied that all the essential elements required to sustain a conviction have been proven. In short, the convictions of the Appellants are safe. Whether the sentence imposed to the Appellants are excessive [40] In the Memorandum of Appeal, the Appellants contend that the sentences imposed upon them are manifestly excessive, premised on the following mitigating factors:

the quantum of money involved is not substantial;

the subject matter of the alleged theft is confined to merely two (2) items and not so expensive; and

the injuries sustained by SP1 are minor and not severe. [41] Before examining the Appellants' appeal against sentence in detail, it is pertinent to note that the principles governing the appellate court's power when hearing appeals on sentence are well-established. In Mansor Endut v. PP [2024] CLJU 346, the Court of Appeal through Azmi Ariffin JCA held- [14] The appellate court can and will interfere in the sentence imposed by the lower court if it is satisfied that any of the following four grounds are made out:

the sentencing judge had made a wrong decision as to the proper factual basis for the sentence;

there had been an error on the part of the trial judge in appreciating the material facts placed before him;

the sentence was wrong in principle; or

The sentence imposed was manifestly excessive or inadequate. (See R v. Ball [1951] 35 Cr App. R 164; Loo Weng Fatt v. Public Prosecutor [2001] 3 SLR 313 at para [65]; Public Prosecutor v. UI [2008] 4 SLR (R) 5 [42] The Court of Appeal speaking through Siti Norma Yaakob JCA (as she then was) in Yusmarin Samsudin v. PP [1999] 4 CLJ 391 held that-The principles of sentencing have long been entrenched and well settled in our criminal law jurisprudence and a court seized with such a jurisdiction is empowered to take into account the following considerations;

the extent and seriousness of the offence committed;

the guilty person's antecedents; and

the public interest factor. See the judgment of this court in Lim Guan Eng v. Public Prosecutor [1998] 3 CLJ 769; [1998] 3 MLJ 34. [43] Upon a careful perusal of the learned SCJ's GOJ, I find that she imposed a sentence of seven (7) years' imprisonment for the offence under s. 395 of the PC after observing that gang robbery is an exceptionally grave, high-magnitude offence that must not be treated lightly. The learned SCJ also took judicial notice of the alarming frequency with which this specific type of offence is committed within the Klang area. For the offence under s. 323 of the PC, the learned SCJ properly took into consideration the aggravating factor that SP1 suffered a ruptured eardrum as a direct result of the assault before imposing 1 year's imprisonment to the 1st Appellant. Premised on the foregoing justifications, I find that the learned SCJ had duly appreciated all the material facts and circumstances presented before her. [44] In conclusion, this judgment would be incomplete without drawing guidance from the celebrated dictum of Raja Azlan Shah Ag LP (as His Royal Highness then was) in Bhandulananda Jayatilake v. PP [1981] CLJU 139; [1981] 1 LNS 139; [1982] 1 MLJ 83 where His Royal Highness observed as follows: Human nature being what it is, different judges applying the same principles at the same time in the same country to similar facts may sometimes reach different conclusions (see Jamieson v Jamieson [1952] AC 525, 549). It is for that reason that some very conscientious judges have thought it their duty to visit particular crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to view the same crimes with leniency. Therefore, sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed a different sentence is not sufficient, per se, to warrant this court's interference. [45] In light of the above, I dismiss the Appellants' appeal against sentences and the learned SCJ's decision on sentences is upheld. Dated: 13.6.2026 (SHAMSULBAHRI BIN HAJI IBRAHIM) JUDGE, HIGH COURT OF MALAYA, KLANG For the Appellants:Sharonpal Singh a/l Santokh Singh Messrs. Sharonpal Singh & AssociatesFor the Respondent:DPP Mohd Hafizi bin Abdul Halim Pejabat Pengarah Pendakwaan Negeri Selangor