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1 IN THE HIGH COURT IN MALAYA AT IPOH 5 IN THE STATE OF PERAK DARUL RIDZUAN CRIMINAL APPEAL NO: AA-42S-4-07/2023 BETWEEN 10 SARAVANA KUMAR A/L KANNU ...APPELLANT AND PUBLIC PROSECUTOR …RESPONDENT GROUNDS OF JUDGMENT 15 Introduction [1]. This appeal concerns the conviction of the appellant, who allegedly wielded a “parang” during the commission of a crime, causing 20 grievous injury to the victim (complainant). It is noted that the appellant’s hands appear visibly deformed due to a past injury, a deformity confirmed by the Investigating Officer. The pertinent question for the court's consideration is whether the appellant's conviction is safe given the lack of further investigation into the 25 appellant's hand deformities and the issue of his identity. Facts [2]. The appellant was charged with an offence under section 395, read 30 together with section 397 of the Penal Code, for robbery and causing grievous hurt with a weapon. The charge reads as follows: “Pertuduhan Pindaan “Bahawa kamu bersama-sama dengan 2 orang yang masih bebas 35 pada 26/12/2019 jam lebih kurang 10.30 malam bertempat di kawasan berhampiran tanah perkuburan India Ara Payung, di dalam daerah Batu Gajah, di dalam Negeri Perak didapati telah melakukan rompakan berkumpulan ke atas wang tunai RM300 dan sebuah telefon bimbit jenama Oppo S7 milik Shan a/l 40 Ravendera (No.K/P: 960403-08-6485) dan semasa melakukan rompakan itu kamu telah menyebabkan cedera parah kepada Shan a/l Ravendera (No. K/P: 960403- 08-6485). Oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah Seksyen 395 Kanun Keseksaan yang dibaca bersama Seksyen 45 397 Kanun Keseksaan.” Background facts [3]. On 25 December 2019, at approximately 10 pm, the complainant (SP2) went to a cattle farm on a motorcycle. Suddenly, someone 50 kicked the motorcycle, causing SP2 to fall off the motorcycle. After SP2 fell, someone sat on him while another person covered SP2's face using the t-shirt SP2 was wearing. [4]. SP2’s hands were then tied with the jacket he was wearing, and his 55 helmet was removed. SP2 was subsequently beaten. [5]. Another man tied SP2's legs with a tree root and then struck him with a tree branch. This individual also pulled out SP2’s bag and took his belongings, including a mobile phone in his pocket. [6]. SP2 tried to remove the cloth covering his face. After managing to 60 do so, he saw one of the men pull out a “parang” and swing it at him in an attempt to slash him. SP2 instinctively blocked the attack, but the “parang” struck his left index finger. He then pushed the attacker and ran towards a nearby park. At the time, SP2 was on the ground, and the “parang” was approximately three feet long. 65 [7]. SP2 ran towards the residential area of Taman Mewah, about 300 to 400 meters from the scene, while the accused and another man chased him for about 30 meters. SP2 ultimately sought help from a member of the public and was rescued. [8]. According to SP2, three men attacked him, two of whom were 70 Indian. He claimed to recognise one of them as the appellant, whom he identified in court. [9]. SP2 stated that he had known the appellant for about a month before the incident. He claimed that it was the appellant who sat on him, tied his hands with his jacket, and removed his helmet. SP2 75 asserted that he recognised the appellant as the one who sat on him, even though the appellant was wearing a helmet at the time. SP2 noted that the area was somewhat dark but illuminated by moonlight. [10]. The belongings of SP2 that were allegedly stolen were a mobile 80 phone, driving license, bank card, and a cash sum of RM1,000. SP2, during the trial, attempted to clarify the discrepancy of the amount RM300 as stated in the police report lodged at Batu Gajah report No: 5450/19, whereupon, during the trial, he testified that the amount stolen was RM1,000. This apparent contradiction or 85 discrepancy occurred because SP2 was still in the hospital, feeling frightened and in pain when the report was made. [11]. The learned Magistrate found the appellant guilty and sentenced him to 12 years of imprisonment and three strokes of the cane. The appellant appeals against this conviction on three main grounds: 90 a) His physical inability to grip a weapon due to a past hand injury, making it impossible to hold and swing a “parang” firmly; b) The reliability and validity of SP2's identification of the appellant; and 95 c) The validity of the defence of alibi. [12]. I will address these issues in turn, analysing the arguments presented by both parties and the reasoning of the session court judge (SCJ). 100 Issue 1: Physical Inability to Grip a Weapon [13]. The appellant's primary defence was his physical inability to grip a weapon due to his severe injuries sustained in 2008, which allegedly left his hands significantly impaired. He testified that only his right thumb was functional and that he could not hold objects like 105 “parang” and swinging it, as alleged by the prosecution. [14]. During the trial, the appellant demonstrated his hand condition to the court, showing the deformity caused by his past injury, which he claimed made it impossible to grip and swing a weapon like a parang. This claim was partially supported by the investigating 110 officer (SP6), who admitted during cross-examination that the appellant's hands appeared deformed. However, the officer acknowledged she did not conduct a thorough investigation into the extent of the appellant's disability, nor did she seek a medical evaluation to verify his claim. The appellant argued that this failure 115 of the prosecution to investigate further prejudiced his defence and maintained that the burden of proof lay with the prosecution to disprove his physical incapacity. Append below is the evidence of the prosecution witness SP6 (Inspektor Siti Ramlah binti Abdullah) during cross-examination, who was aware of the appellant’s 120 deformed hand but did not bring it to the hospital to verify the extent of his hand deformity: “OKT ada maklum dia seorang cacat. Saya ada periksa tangan OKT. Kedua dua tangan OKT adalah cacat. OKT cacat pada tangan akibat diserang dalam kejadian terdahulu. Saya tidak 125 bawa OKT ke hospital untuk pastikan samada OKT benar-beb[n]ar tidak boleh pegang barang dan lain-lain. Saya tidak tahu samada OKT boleh pegang atau tidak apa-apa barang. Setuju orang yang melakukan samun bukan lah OKT kerana kecacatan pada tangannya tidak membolehkannya untuk 130 pegang parang? : Saya tidak tahu sejauh mana kekuatan tangan OKT. Setuju sepatutnya anda bawa OKT ke hospital untuk diperiksa? : Saya setuju. 135 Setuju siasatan kamu adalah cacat? : Saya tidak setuju.” (underlined is emphasised) [15]. On the other hand, the prosecution challenged the appellant's claim, 140 highlighting the lack of medical evidence to support his alleged disability. They argued that his testimony was merely an assertion without supporting documentation or medical records. Further, the prosecution suggested that, despite the injury, the appellant could still have committed the crime, including wielding a weapon 145 [16]. The SCJ relied on the appellant's failure to provide concrete medical evidence to substantiate his claim of physical disability. The judge weighed the fact that the appellant did not produce any medical reports despite having undergone surgery and physiotherapy. Further, the SCJ found the investigating officer's testimony was 150 insufficient to establish reasonable doubt regarding the appellant's ability to grip a weapon. [17]. The appellant's defence centres on whether reasonable doubt was raised regarding his physical capability at the relevant time. Although the absence of medical evidence weakened his case, it is 155 essential to note the prosecution’s failure to investigate his hand condition thoroughly. While this failure does not automatically imply the appellant's incapacity to commit the alleged offence, it does warrant closer scrutiny. Given that the burden of proof lies with the prosecution beyond a reasonable doubt, the court should have 160 critically examined this gap in the investigation. [18]. The appellant's inability to provide medical evidence, especially in custody, is reasonable, as his counsel had requested the court to direct the police to refer the appellant to a hospital for a medical assessment of his hand's functionality. This assessment, had it 165 been done, would specifically determine whether the appellant could grip an object (particularly the 3 feet “parang”). Again, the SCJ did not consider this. The prosecution’s failure to act on this request is significant, particularly given that there was an acknowledgement of the appellant's visibly deformed hand due to a previous injury. 170 This oversight reflects an insufficient investigation by the prosecution into a key aspect of the appellant’s defence. [19]. Past medical records of the appellant’s injury could not provide information on his current ability to grip an object like a “parang” at the time of the alleged offence. Only a current examination could 175 clarify this; the responsibility to obtain this report rested with the prosecution. While in custody, the appellant had no means to seek a medical evaluation independently; only a court’s directive could have facilitated this. Despite counsel's request, no action was taken to obtain a medical assessment that could determine whether the 180 appellant was physically capable of gripping, holding, and wielding a “parang”. [20]. I find that the prosecution’s failure to establish that the appellant could still grip, hold, and wield a “parang” despite his apparent hand deformity is, in itself, sufficient grounds to allow the appellant's 185 appeal. Issue 2: Identification [21]. The appellant challenges the reliability of the identification process, arguing that it was flawed and did not follow established guidelines. 190 Specifically, the appellant claims that SP2 identified the appellant through a photograph shown by an officer (Sjn Mahilan) on his phone at the hospital immediately after the incident. This alleged photographic identification took place before the identification parade conducted later at the police station, raising concerns about 195 suggestiveness and reliability. [22]. The appellant further contends that, while an identification parade was conducted, the prosecution failed to submit a report detailing essential aspects, such as the officer conducting it, the date, location, participants, and, whether SP2 successfully identified the 200 appellant during the parade. This omission undermines the ability to assess the reliability of the identification and weakens the prosecution's case. The appellant also asserts that SP2's prior exposure to the appellant’s photograph could have influenced his memory, thereby compromising the subsequent identification 205 process. [23]. The SCJ grounds of judgment in this respect are reproduced here: “Laporan kawad cam tidak dikemukakan 210 Sejak di peringkat kes pendakwaan peguambela telah menimbulkan isu bahawa laporan kawad cam ke atas OKT tidak dikemukakan di dalam kes ini dan oleh itu pengecaman ke atas OKT oleh saksi-saksi utama di dalam kes ini tidak boleh diterima. Mahkamah berpendapat di dalam kes ini kesemua saksi terutama 215 SP2 telah memberikan keterangan yang mantap berkenaan pengecamannya terhadap OKT di Mahkamah terbuka. Justeru telah mencukupi untuk Mahkamah menerima keterangan tersebut walaupun tanpa sebarang keterangan sokongan sepertimana keterangan pengecaman di dalam kawad cam. 220 Rujuk kes Abdul Rashid Bin Abdul Wahab v PP (2016) MLJ 956 yang antara lain menyatakan seperti berikut: (dengan izin) Para 17 tidak di mana-mana dalam keterangan SP2, SP3, SP4 225 bahawa mereka mengecam perayu dalam Mahkamah adalah kerana semasa perbicaraan hanya perayu seorang sahaja yang berada di dalam kandang salah, tidak orang lain... Para 18 Hakim bicara juga berpendapat jika pun pengecaman dalam perbarisan pengecaman telah dilakukan dengan cara tidak adil kepada 230 perayu, namun masih ada dock identification dimana mangsa telah mengecam perayu dengan positif sebagai orang yang telah menyamunnya...” 235 [24]. The court finds that SP2's dock identification of the appellant is insufficiently reliable to support a conviction. Dock identification, especially in the absence of an independent identification procedure like an identification parade, is inherently risky and suggestive. In Arumugam s/o Muthusamy v PP [1988] 3 MLJ 73; [1998] 3 CLJ 240 597; [1998] 3 AMR 2293; [1998] 1 MLRA 377, it was established that reliance on dock identification alone is undesirable due to the lack of procedural safeguards necessary for ensuring accuracy. His Lordship Justice Chong Siew Fai CJ stated: “Generally speaking, however, a dock identification in the sense as 245 described above, ie identification of an accused for the first time in court at the trial is undesirable, and it would be a good practice to hold an identification parade, which, if it turns out to be positive, would tend to strengthen the case for the prosecution. But to hold that an identification parade must, in all circumstances, conducted 250 in order to sustain a conviction would be too stringent. There may well be situations where an identification parade cannot or need not be held, for example, where the attendance of the witness at the parade is physically impossible or impracticable or there are exceptional circumstances.” 255 [25]. In this case, with the challenge by the appellant that SP2 did not make a positive identification at the identification parade and that the prosecution failed to call the relevant officer to give evidence, the reliance of the prosecution solely on dock identification, which 260 occurred 15 months after the incident, render the dock identification less dependable. Even if there was positive identification during the identification parade, it is unreliable because the complainant (SP2) was shown a photograph of the appellant when SP2 was in the hospital, after which the identification parade was conducted. Given 265 these circumstances, the court concludes that dock identification alone does not provide sufficient weight to confirm the appellant's identity as the perpetrator beyond a reasonable doubt. [26]. Evidence suggests that SP2 failed to identify the appellant during the identification parade conducted three days after the incident, a 270 fact left unchallenged by the prosecution. Furthermore, the prosecution omitted any detailed evidence regarding the parade’s process, including the officer in charge, date, location, participants, and, most importantly, whether SP2 identified the appellant. This court finds that an adverse inference under section 114(g) of the 275 Evidence Act 1950 should have been drawn, suggesting that SP2 likely did not identify the appellant. However, the trial judge failed to address this issue in the judgment. [27]. The prosecution argued that SP2’s dock identification was credible and sufficient, asserting that SP2 had ample opportunity to observe 280 the appellant during the incident. This argument, however, overlooks the reliability safeguards that identification parades provide. It is concerning that SP2 could not identify the appellant in the parade held just days after the incident yet was able to identify him in court 15 months later. The lack of explanation for this 285 discrepancy raises significant doubts about the reliability of the identification. [28]. The court finds that the outcome of the identification parade is pivotal. SP2’s failure to identify the appellant and the omission to produce details regarding the parade’s process, including the officer 290 in charge, date, location, participants, and, most importantly, whether SP2 identified the appellant. The parade, which was conducted three days after the incident, raised doubts about the strength of the prosecution’s case. Although the investigating officer claimed that an earlier photographic identification was made, this 295 assertion was not substantiated by testimony from the officer who allegedly presented the photograph. Sarjan Mahilan was not called to give evidence, leaving questions about the identification process unanswered. [29]. According to R v. Turnbull [1976] 3 All ER 549, identification 300 parades must be conducted with utmost care to ensure fairness and prevent misidentification. Identification parades play a critical role in evaluating witness memory and reducing biases. In this case, the complainant’s failure to identify the appellant during the parade casts serious doubt on the appellant’s involvement in the offence. 305 Without a line-up, photographic identification alone lacks the protections against misidentification that a formal parade provides. Recognition through an identification parade is considered more reliable than identification through photographs, as established in PP v. Ayyavoo Subramaniam & Anor [2004] 6 MLJ 511; [2004] 4 310 AMR 654; [2004] CLJU 141; [2004] 4 MLRH 65. [30]. Furthermore, despite the SCJ granting the appellant’s request to recall SP2 for cross-examination, the prosecution failed to produce SP2, claiming he could not be located. This failure deprived the appellant of the opportunity to challenge the identification 315 thoroughly, particularly on critical issues such as whether SP2 saw the appellant wielding a “parang” at him and the issue of identification. The inability to cross-examine SP2 on these points prevented the appellant from presenting his full defence and thus compromised the appellant’s right to a fair trial. 320 Issue 3: Alibi [31]. The appellant also provided an alibi, claiming that he was at his aunt's house during the alleged offence and, therefore, could not 325 have been at the crime scene. His brother and aunt supported this claim, testifying that the appellant was with them during the relevant time. [32]. The prosecution challenged the credibility of the alibi by pointing out the close relationship between the appellant and the witnesses, 330 suggesting that their testimony was biased, and argued that the late notice of the alibi indicated it was an afterthought. [33]. The learned SCJ had set out the evidence of the SD2 and SD3, ie the brother of the appellant and the aunt. I take the liberty to reproduce the same here: 335 “Keterangan SD2 i. SD2 adalah adik OKT. ii. SD2 menyatakan bahawa pada malam kejadian selepas 340 makan malam, menonton tv serta berbual-bual dia dan OKT telah tidur pada pukul 12.30 malam. Menurut SD2 dia tidur di sebelah OKT pada malam tersebut. iii. Pada keesokan harinya, menurut SD2 bila dia bangun dia dapati OKT telah bangun dan bersiap-siap untuk pergi 345 kerja iv. SD2 juga menyatakan bahawa tangan OKT adalah cacat yang mana dia tidak boleh memegang apa-apa dengan tangan tersebut termasuklah memegang parang. Keterangan SD3 350 i. SD3 menyatakan bahawa OKT adalah saudara kepada suaminya. ii.