the question of what other evidence may properly be regarded as capable of supporting identification. [Emphasis added] [22] The guidelines had been consistently applied in courts where the issue of identification arose. Even an honest and convincing witness could be mistaken due to human fallibility. As such, the quality of the identification evidence was of the utmost importance to be decided by a court. The warnings given by guidelines were in the context of a jury trial that had been abolished. However, a judge sitting alone is still required to administer warnings to himself about the dangers involved. In the instant case, I warned myself of the dangers concerning such poor quality of identification which incredibly relied only on the eye and nose of a masked criminal wearing a hat. [23] It was true that during the trial, the Counsel for the accused did not expressly challenge or dispute the identification by PW1 of the accused as the robber. During PW1’s cross-examination, all that was asked and answered on this point was this: S : Kamu kata kamu cam tertuduh melalui mata dan hidung? J : Betul. S : Setuju dengan saya kalau pakai pelitup muka, pelitup muka itu akan tutup pada hidung dan mulut? J : Betul PB : Itu sahaja soalan saya. [24] Therefore, was the absence of the challenge by the defence result in the identification evidence by PW1 to be deemed admitted? Would it invite the often-quoted principle from the case of Wong Swee Chin v. Public Prosecutor [1981] 1 MLJ 212 that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony? I did not think so. The principle quoted from the case was of a general rule and there were exceptions to it. In my considered opinion, one of the exceptions was applicable to the identification evidence by PW1. On page 213 of the case, it was observed that: On this point we need only say there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony. But as is common with all general rules there are also exceptions as pointed out in the judgment of the Supreme Court of New Zealand in Transport Ministry v. Garry where Haslam J. said at page 122:- “… the story is itself of an incredible or romancing character, or the abstention arises from mere motives of delicacy … or when counsel indicated that he is merely abstaining for convenience, e.g, to save time. And where several witnesses are called to the same point it is not always necessary to cross-examine them all”. [Emphasis added] [25] Applying the above principle, the testimony by PW1 was an incredible account in that she could identify the masked robber based only on the eye and nose without further explanation. As I had discussed and found earlier, there was a lack of additional and required questions by the prosecution to positively prove the robber’s identity. This court could not accept the identification of a culprit who was wearing a face mask and a hat without more convincing evidence as someone who robbed PW1. Having said that, the prosecution was not required to prove maximum or overwhelming evidence for the identification. What was needed was only sufficient evidence. It would have been sufficient that credible and cogent evidence was adduced to point out that it was the accused. I was also guided by the decision in K.S Roberts v. Public Prosecutor [1970] 2 MLJ 137 on page 138 where Raja Azlan Shah J. (as His Royal Highness then was) said: Identification is a fact or circumstance which must be proved against an accused person before it can be relied upon and used against him. A fact or circumstance is held to be proved only when it fulfils the definition of the word “proved’ given in section 3 of the Ordinance……..It is true that an absolute certainty is not required but the court has to test the evidence with prudence and accept it only when it is so highly probable that its truth can safely be accepted. The test excludes from its orbit blind faith of a true believer, because prudence and credulity do not go together. [Emphasis added] [26] On the issue of the credibility of a witness, the probabilities of the case are important to be considered. In my considered opinion, the identification evidence by PW1 was not in accordance with the probabilities of the case. In the absence of any other evidence, it was improbable that she could identify the masked robber during the robbery simply based only on the eye and nose. The Court of Appeal in Public Prosecutor v. Mohd Bandar Shah bin Nordin & Anor [2008] 4 MLJ 556 observed that: If a witness’s evidence is improbable, this would be a good reason for rejecting his evidence or according it very little weight. By the same token, where the evidence of a witness accords with the probabilities of a case, it would be a serious misdirection on the part of the trial court to give it little or no weight on grounds of credibility. [Emphasis added] [27] In Md Zainudin Raujan v. PP [2013] 4 CLJ 21, the Federal Court said: It is trite that the inherent probability or improbability of a fact in issue must be the prime consideration in deciding whether a witness is credible or not. It is the duty of the court to sieve the evidence and to ascertain what are the parts of the evidence tending to incriminate the accused which he accepted. [Emphasis added] [28] On another point, it is well-settled that dock identification is substantive evidence whereas the evidence from an identification parade may be used to corroborate the dock identification. Amongst others, in Basuni bin Toher v. PP [2012] 1 LNS 603, the court observed: The law pertaining to identification is clear in that dock identification is a piece of substantive evidence. Evidence pertaining to identification parade provides corroborative evidence of the substantive evidence of dock identification – see Budhsen v. State of Uttar Pradesh [1970] Cr. L.J 1149; Malkansingh v. State of Madhya Pradesh [2003] Cr. L.J 3535. [29] Since I did not accept PW1’s testimony that she managed to identify the accused as the masked robber solely on the evidence of the eye and nose, it followed that I could not accept her dock identification as substantive evidence and her identification parade’s evidence as corroboration. She was also not asked at all how she still could identify the accused in court. The same was true with the identification parade. Was it still based only on the eye and the nose? After all, the accused was not wearing a hat and a face mask when PW1 identified him in court and the identification parade. So the circumstances were different. In the absence of any other compelling evidence, the fact that the accused was picked out at the identification parade and identified in court did not lend any credence to the testimony by PW1. [30] I think there was another matter worth mentioning. It concerned P1 which was the police report made by PW1 on the same night after the robbery happened. Nowhere in the content of P1 did PW1 say she managed to identify or recognise the robber although afterwards, her evidence was different. She also did not mention any face mask worn by the robber in P1 whilst in court she admitted to the robber wearing a face mask. Further, she stated that she was unsure about the race of the robber whereas in court she said that the robber was an Indian. There was also no mention in P1 of any attempt to inflict hurt upon her. And as with the evidence about the eye and the nose, the prosecution decided not to ask any further questions on what was said and what was not stated in the report by PW1. [31] Nonetheless, I realised that P1 was the first information report. It was not substantive evidence of its content. Therefore, it is not the law that the entire case of the prosecution must be laid out in a first information report. It also meant that any contradiction or omission in P1 would not necessarily result in PW1’s evidence being rejected in its entirety. It would certainly be too far to hold that was the case. Be that as it may, the absence of any explanatory question by the prosecution on the contradiction and omission in P1 resulted in this court treating her evidence with caution regarding credibility [32] Apart from the identification evidence of the robber, the prosecution tried to connect the accused with the robbery through a knife and its sheath. They were P5(A), the knife & P5(B), the sheath. They were found by PW2, the police officer who arrested the accused in the house. In its written submission, the prosecution said it relied on section 27 of the Evidence Act 1950 [Act 56] to prove that it was the accused who committed the crime. Section 27(1) reads: When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. [Emphasis added] [33] It has been said that section 27 is a concession to the prosecution. The section stipulates that a self-incriminatory statement is admissible if such statement can properly be regarded as information relating distinctly to a fact thereby discovered: Chandrasekaran & Ors v. Public Prosecutor [1970] 1 LNS 11; Pulikuri Kotayya & Ors v. Emperor AIR 1947 PC 67. [34] In Wai Chan Leong v. Public Prosecutor [1989] 1 CLJ (Rep) 171, the Supreme Court held that: [2] Firstly s. 27 is an exception to the prohibition imposed by the preceding ss. 24, 25 and 26 of the Evidence Act, it should be strictly construed and applied. Secondly, it must be borne in mind that for s. 27 of the Evidence Act to apply, the information must be such as has caused discovery of a fact. In other words, the fact must be the consequence and the information the cause of its discovery. Moreover the information must relate distinctly to the fact discovered. [3] It is fallacious to treat ‘fact discovered’ within s. 27 as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. [4] It must also be observed that the legislature has used the expression “information” in s. 27 of the Evidence and therefore did not intend it to have the same meaning as a statement. The meaning of information includes knowledge derived by the person informed by the accused as well as the means taken to import that knowledge. [Emphasis added]. [35] It is well-entrenched in our jurisprudence that the section should be strictly construed and applied. Whether section 27 could be invoked or not, it was important to examine and evaluate the evidence of PW2. The notes of evidence showed: S : Jadi apabila Inspektor menahan suspek sebelum menjalankan soal siasat awal apa yang Inspektor ada apa-apa tindakan Inspektor buat terhadap suspek ini? J : Kami tanya dia di mana barang kes. S : Apa? J : Untuk dapatkan barang-barang yang digunakan semasa kes samun yang dibuat. S : Apa yang Inspektor soal siasat? J : Saya tanya dia di mana barang-barang yang kamu gunakan semasa kejadian. S : Itu sahaja soalan yang ditanyakan? J : Itu sahaja. S : Tidak merujuk kejadian-kejadian yang mana, Inspektor tidak tanya? J : Merujuk kepada kejadian samun 7-Eleven yang dilakukan olehnya. Dia juga sedar kehadiran kami kerana kami pernah menangkap OKT yang sama pada tahun 2018. S : Jadi apabila Inspektor bertanya soalan tersebut kepada suspek apa jawapan dia? J : Dia menunjukkan barang-barang yang ada. S : Dia hanya tunjuk, tidak jawab secara lisan? J : Dia hanya tunjuk. Dia bawa kami untuk menunjukkan barang-barang itu di dalam sebuah bilik. [Emphasis added] Further on, S : Kemudian tadi Inspektor menyatakan OKT Salinder Singh ini membawa ke sebuah bilik, kemudian apa yang dilakukan di dalam bilik itu? J : Kami membuat pemeriksaan terhadap wardrobe milik suspek dan didapati barang-barang yang digunakan itu ada dalam wardrobe tersebut. S : Pemeriksaan di wardrobe ini dilakukan sendiri oleh Inspektor ataupun ditunjukkan oleh OKT? J : Ditunjukkan oleh OKT dan diperiksa oleh saya bersama team. S : Jadi pemeriksaan yang dilakukan apa yang dijumpai? J : Kami telah menjumpai beberapa bilah pisau dan barang-barang kes yang lain yang bersangkut bersabit dengan kes samun &-Eleven. S : Berapa bilah pisau yang dijumpai? J : Dalam 3 bilah pisau. S : Selain pisau apa lagi barang lain? J : Beg sandang. S : Beg sandang berapa? J : Satu beg sandang. S : Selain itu? J : Sweater. [Emphasis added] [36] Based on the evidence adduced, section 27 could not be invoked to incriminate the accused because he did not give any information to PW2. In addition, PW2 did not ask any specific questions about a knife and a sheath used to rob PW1. He did not even ask anything about any weapon that was used. In this instant case, there was also evidence adduced by the prosecution that there were related robberies that were committed in other places. In response to a general question, the accused only brought PW2 to a room in the house. There was no evidence he said anything that could be regarded as information. This was also admitted by PW2. Aside from that, PW2 said the accused showed him the goods in a wardrobe and the goods were found after he and his team conducted an examination. The prosecution did not ask PW2 how the accused showed him the goods there or in what manner the various goods were located. So, a question arises. If the goods were actually shown by the accused then what was the need for PW2 to conduct an examination like he said until they were found? And there was also no evidence adduced that the goods had any characteristic feature of being hidden to apply section 27: PP v. Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401. Another point was this. The information required to apply the section must relate distinctly to the discovery of the knife and the sheath in question by PW2. However, PW2 found not just the knife and the sheath but two other knives and another sheath together with other goods in the house. And as alluded to, there was no information given by the accused to PW2. [37] A police report was made by PW2 which was P4. Nowhere in the content of it did PW2 ask the accused for any information. Similarly, nowhere was stated that the accused gave him any information until the goods were discovered. Further, no other evidence was adduced that PW2 had written or recorded elsewhere the question asked and the answer given. What PW2 actually said in P4 was that the accused guided him into a room where the accused showed him the goods. Thus, all that remained was that PW2 had made his own search in the house together with the accused. As such, it had nothing to do with any information by the accused leading distinctly to a discovery to invoke section 27 that could incriminate him with the knife and the sheath. [38] Apart from that, the conduct of the accused in bringing PW2 to the room where the goods were found might or might not be relevant under section 8 of Act 56. It could be relevant if the goods were proved to have been used in the robbery or were obtained from the robbery. If not proved, then there was no requirement for the accused to explain his conduct under section 9 of Act 56. In other words, not all conduct is admissible under section 8 but only the conduct that is relevant to the fact in issue. Once admitted as evidence, the accused must explain his conduct. Further, in order to draw any adverse inference against the accused, the court must first ensure that there was a nexus between the accused’s conduct and the offence in question: Parlan bin Dadeh v. Public Prosecutor [2008] 6 MLJ 19. [39] Moving on to the evidence of PW5 who was the Investigation Officer. She said that based on her investigation, there were several similar cases involving 7-Eleven concerning the same arrest that was made. She meant that the cases involved the same culprit. Further, the suspect had used the same tools or materials during the robberies. According to PW5, she showed PW1 the knife and the sheath. PW1 managed to identify P5(A) & P5(B) alleging they were used during the robbery. However, there was no evidence adduced by PW5 on how PW1 managed to identify the items during the investigation. It was based on what? No further questions were asked by the prosecution. What were the characteristics or any distinguishing marks on the knife and the sheath? How long did it take for her to see the knife during the robbery? Further, why did she manage to identify the items and not the other knives that were found by PW2 earlier? Were the other knives and another sheath shown to PW1 by PW5 so that the investigation would be more thorough and objectively conducted? [40] Now, let us examine and evaluate PW1’s evidence in court concerning the knife and the sheath. Surely it was not the duty of the court to merely and simply accept all evidence as presented. The court must also critically evaluate the evidence together with the inherent probability or improbability in the particular circumstances. Care and caution must be applied to analyse the evidence to separate the inaccuracies, the truth from the untruth, exaggerations and improvements. Has the prosecution managed to prove that P5(A) & P5(B) were used in the robbery? [41] In her examination-in-chief, PW1 said that the robber was holding a knife in his hand and pointed the weapon at her. The notes of evidence showed: S : Semasa kejadian itu berlaku puan cakap lelaki itu mengarahkan saya, semasa lelaki itu mengarahkan puan ada apa-apa yang dia pegang ke di tangan dia? J : Pisau. S : Apa tindakan lelaki itu semasa pegang pisau itu? J : Dia cuma mengacu sahaja dan dia cakap sesuatu pada saya. [Emphasis added] [42] The prosecution showed her the photographs P3(A-Q) from the CCTV camera systems in the store recorded during the robbery. She was asked to point out any photograph showing the robber pointing the knife a her. She said it was photograph D. However, the photograph obviously did not show any knife let alone the robber pointing any weapon at her. As a matter of fact, all the 17 photographs in P3 did not show any knife at all. The prosecution did not seek any clarification from her why they were so despite her saying the knife was shown in the picture. [43] After PW1 completed her testimony and after the fourth witness had finished testifying, the prosecution applied to recall PW1 to give further evidence. It was allowed. PW1 was only asked to identify a knife that was allegedly used by the robber. The prosecution also did not show her any other knives or other confiscated goods when she first gave evidence. This time her answer was this. She said the knife was pointed at her and at that time it was pointed, the knife was in the right pocket of the culprit. And she said she could identify the knife which she promptly did when the prosecution showed her P5(B) & P5(B) in court. [44] When she was asked how she could confirm it was the knife used, she just said that she remembered the knife. How she easily managed to identify the knife despite saying the knife was in the pocket of the robber was not clarified or explained. And nothing was asked whether the knife was in the sheath or anything about the sheath. There was also no evidence adduced that could set apart and differentiate the knife from any other knives. It was further compounded when she added that the robber only took out a part of the knife from the pocket. The notes of evidence showed: S : Pada ketika itu orang yang mengacukan pisau itu, pisau itu dipegang di kedudukan mana? J : Di sebelah kanan, poket kanan. S : Jadi kalau pada hari ini kalau saya tunjukkan pisau tersebut kepada Cik Nadia boleh camkan? J : Boleh. TPR : Dengan izin, saya pohon rujuk pada ekshibit P5(A) dan P5(B). SP1 : Betul. S : Bagaimana boleh sahkan pisau tersebut adalah pisau yang digunakan oleh tertuduh semasa kejadian? J : Sebab saya ingat memang pisau itu. S : Tadi Cik Nadia kata ciri-ciri ia pisau berwarna coklat dan bersarung. Kalau lihat kepada pisau tersebut ada tali di situ, pada masa kejadian bagaimana bertali ataupun tidak? J : Yang itu saya tidak perasan sebab dia keluarkan separuh sahaja daripada poket. TPR : Itu sahaja soalan saya. [Emphasis added] [45] In her second cross-examination, she reiterated that only a part of the knife was drawn and that it was pointed at her. She made it clear that the knife was not just shown to her but that it was pointed at her. The defence counsel referred to all the photographs in P3 and asked her to choose which photograph showed a knife that was pointed at her. This time she said it was photograph C whereas the last time it was photograph D. I found that from photograph C, no knife could be seen or was pointed at PW1. Again, the prosecution did not seek any explanation from her why it was so although she said the knife was shown in the picture. The notes of evidence during her cross-examination further showed: S : Kamu kata pisau itu dikeluarkan separuh sedikit je betul? J : Betul. S : Pisau itu tidak digunakan ke atas kamu masa kejadian? J : Dia cuma mengacukan pisau ke saya. S : Tadi kamu kata pisau itu dikeluarkan separuh sahaja? J : Ya, betul. S : Saya tanya sekali lagi kamu setuju tidak dengan saya pisau itu tidak digunakan ke atas kamu? J : Dia gunakan untuk mengacukan kepada saya. S : Dia acu kepada kamu ya? J : Ya, separuhlah daripada poket. S : Itu tunjuk ke acu? J : Acu. PB : Saya pohon untuk merujuk kepada ID3(A-Q). S : Boleh kamu tunjukkan gambar yang mana tertuduh ini acu pisau kepada kamu? J : Gambar C. [Emphasis added] [46] In a gist, she said the two photographs from P3 showed the culprit pointing the knife at her. However, none of the photographs showed any knife let alone that it was pointed at her. How could she remember any knife based on the photographs since they did not show any weapon pointing at her like she said they did? Was there something about the blade of the knife? How about the grip of the knife then? No additional evidence was proffered. In addition, she said only a part of the knife was pointed at her from the pocket. This was hard to believe. How could the knife be pointed at anyone when it was still partly inside the right pocket of the robber? Despite that, she insisted that the knife was pointed at her. On this point too, the prosecution did not look for any explanation from her. [47] Further, how certain was she that it was the knife used in the robbery if it was only partly moved from the pocket? As indicated to her by the prosecution, a rope was also attached to the knife when it was shown to her in court. In response, she said she did not remember the rope since only a part of the knife was moved from the pocket. And what about the sheath which was P5(B)? The prosecution did not just introduce a knife but a knife together with a sheath as part of its evidence. However, the prosecution did not ask her any questions concerning the sheath in connection to the knife. Was the knife put inside the sheath? Did the robber take out the knife from the sheath during the robbery? Was the same sheath used in the robbery concerned? As a result, she failed to testify that any sheath was used in the robbery. This meant that there was no evidence that the sheath, P5(B), was used together with the knife, P5(A) in the robbery. [48] Thus, I found the evidence of PW1 about the knife lacked belief and was riddled with inaccuracies. Despite the absence of any challenge again by the defence, it was clear to me that her story was of an incredible nature: Wong Swee Chin v. Public Prosecutor (supra). I could not simply as a matter of course accept her evidence or the lack of it given that a trial court was tasked to determine the credibility of a witness. At the same time, this court had the advantage of seeing and hearing PW1 testify in order to evaluate her credibility. [49] Moreover, it is trite that the prosecution must rely on the strength of its evidence and not rely on the weakness of the defence: Public Prosecutor v. Chia Leong Foo [2000] 4 CLJ 649. It means that the conviction of an accused must not rest on the shortcomings of the defence but on the strength of the prosecution itself. Therefore, it was still incumbent on the prosecution to prove its case with credible evidence and not through incredible evidence. I could not believe and did not accept PW1’s evidence that she could positively identify the knife that was used in the robbery. It was inherently improbable that she was able to do so given all the unanswered questions that were found: Md Zainuddin Raujan v. PP (supra). [50] Her evidence that the knife was used was not even supported by the photographs that she herself chose to say that it was used by the robber in the robbery. In the circumstances, I was constrained to find that the prosecution failed to prove through credible evidence the accused used the knife in question during the robbery. And it has been well-established that credible evidence is evidence that has been filtered and has gone through the process of evaluation, and any evidence that is unsafe should be rejected: PP v. Ong Cheng Heong [1998] 4 CLJ 209. [51] To recapitulate, I had considered and analysed with great care every aspect of the evidence by PW1. The prosecution was relying on the correctness of the identification evidence by PW1. It might be that PW1 was sure that it was the accused. Nevertheless, a mistaken witness could be convincing of what was seen. Therefore, her credibility was crucial to be tested and evaluated in its entirety. I found that her identification evidence of the robber was incredible and insufficient to prove that the accused was the robber. The same goes for her identification of a knife that was introduced. In sum total, the quality of the identification evidence was inherently poor and unreliable which made it patently unsafe to positively prove the accused was the robber who committed the heist. [52] On maximum evaluation, a reasonable doubt was raised in the prosecution’s case concerning the identification. I was guided by the often-quoted principle that a reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be imaginary doubt unrelated to evidence: Public Prosecutor v. Saimin & Anor [1971] 1 LNS 115. [53] Further, as explained by the Court of Appeal in Ahmad bin Ibrahim v. Public Prosecutor [2012] 6 MLJ 305: Reasonable doubt is a doubt arising from the evidence adduced or doubt which arises for reasons of lack of evidence. The existence of reasonable doubt is dependent upon the totality of the evidence and on an examination of all evidence in a fair and reasonable manner and not in isolation. [Emphasis added] [54] In the circumstances, I did not accept the evidence adduced by the prosecution that the accused was the robber. Her evidence lacked credence, veracity and reliability. Thus, it was my firm finding that the prosecution failed to prove the accused had committed the robbery as alleged. That the accused voluntarily attempted to cause hurt to PW1 [55] Given that it was unable to prove the accused was the robber, accordingly the prosecution also failed to prove the accused had voluntarily attempted to cause hurt to PW1. The identity of the robber was not proven. [56] Notwithstanding the finding, I found that there was not even any evidence that the robber attempted to cause hurt to PW1. All this could be gathered from the evidence of PW1 that was discussed and the finding that was made earlier. There was also no evidence the robber used any weapon to stab or slash PW1. Neither was there any effort to apprehend her or to inflict any injury on her. All the CCTV photographs taken during the robbery did not even show the robber had attempted to cause hurt to PW1, voluntarily or otherwise. In any event, PW1 never testified that the robber attempted to hurt her. Therefore, the prosecution failed to prove the second ingredient of the offence as well. Conclusion at the close of the prosecution’s case. [57] I evaluated the reliability of the evidence and found that the prosecution failed to establish all the ingredients of the offence against the accused. Further, I analysed the evidence with the inherent probabilities and inherent improbabilities of the case. As observed in Sia Soon Suan v. Public Prosecutor [1966] 1 MLJ 116 on page 118, the Federal Court said: Nevertheless, the requirements of strict proof in a criminal case cannot be relaxed to bridge any material gap in the prosecution evidence. Irrespective of whether this court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else. [Emphasis added] [58] This court had subjected the whole evidence to a maximum evaluation which was succinctly explained by the decision in PP v. Lee Hock Lai [2004] 1 CLJ 57: In my view, the ‘maximum evaluation’ refers to a proper and complete evaluation of all the evidence adduced to determine whether a prima facie case has or has not been made out. Thus, all the evidence adduced has to be scrutinised properly and this should not be just a perfunctory, cursory evaluation or an exercise of skimming over the surface of the evidence only. The prosecution must make out the ingredients of the charge with the evidence adduced. If the evaluation of the evidence results in doubts in the prosecution’s case at this stage of the proceedings itself then it cannot be said that a ‘prima facie’ has been made out. The defence ought not to be called merely to clear or clarify the doubts. The benefit of the doubt, if any, at the end of the prosecution’s case must go to the accused. [59] I found that the prosecution had not made a prima facie case against the accused (section 173(f)(ii) of the Criminal Procedure Code). It was unable to make out a prima facie case because it failed to adduce credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction (section 173(h)(iii) of the Code). [60] By maximum evaluation, the totality of the evidence was not sufficient for the defence to be called. That being the case, I was not prepared to convict the accused on the charge if he had elected to remain silent: Balachandran v. PP [2005] 1 CLJ 85; PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457. Thus, the accused was acquitted and discharged. Dated on this day, 7th November 2024 -sgd- (DATUK AHMAD KAMAL ARIFIN BIN ISMAIL) Judge Sessions Court Johor Bahru For the prosecution : DPP Umar Faiz bin Abd Kohar. DPP Muhammad Irsyadh bin Mardi. For the accused : Haji Hussin bin Othman (YBGK).