IN THE COURT OF APPEAL OF MALAYSIA

(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO: Q-05-197-07/2014
BETWEEN
PUBLIC PROSECUTOR

.. ..APPELLANT

1.

AND
ZURAINI BIN BAHAR

2.

GAIRIL BIN MUSTAPA

3.

ALIZAM BIN BAHAR

4.

ZULISKANDAR BIN BUSTAMAN

RESPONDENTS

(In The Matter Of High Court Of Sabah And

Sarawak At Limbang
Criminal Trial No: LMN - 45-302-1/4-2013)

Between

Public Prosecutor

And
Zuraini Bin Bahar
Paisal Ak Baro
Gairil Bin Bahar
Alizam Bin Bahar
Adi Izuanie Bin Zuraini
Zuliskandar Bin Bustaman
Mohd Raimmy Bin Jumat
Helmi Bin Wahab
Fazilah Bin Abd Rahman

CORAM:
DAVID WONG DAK WAH, HMR
ABDUL RAHMAN SEBLI, HMR
ZAMANI A. RAHIM, HMR

JUDGMENT OF THE COURT

Introduction:

1. This is an appeal against the decision of the High Court in which

the learned Judge discharged and acquitted the nine accused at
the end of the prosecution case premised on the ground that the
prosecution had failed to prove a prima facie case against all the
accused.

2. The charge against the nine accused reads as follows:

Bahawa kamu bersama seorang lagi yang masih bebas
pada 21 September 2012 jam lebih kurang 7.30 p.m.
dihadapan kedai runcit Hiap Soon Trading Co. Pekan Lawas,
di dalam daerah Lawas di dalam Negeri Sarawak adalah ahli
perhimpunan yang menyalahi undang-undang di mana tujuan
bersama kamu adalah untuk mengakibatkan kematian Edwin
Singa (KPT: 930716-13-6503) dan semasa kamu semua ahli
perhimpunan tersebut satu atau lebih dari satu daripada
kamu dalam melaksanakan tujuan bersama kamu telah
melakukan bunuh dengan menyebabkan kematian Edwin
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Singa (KPT: 930716-13-6503), iaitu satu kesalahan di mana

ahli-ahli perhimpunan mengetahui mungkin dilakukan dalam
melaksanakan tujuan bersama perhimpunan tersebut dan
dengan itu kamu telah melakukan suatu kesalahan di bawah
Seksyen 149 Kanun Keseksaan dan boleh dihukum di bawah
Seksyen 302 Kanun tersebut.

3. The prosecution appealed against the learned Judges ruling only

in respect of 1st,3rd, 4th, and 5th accused. When we commenced the
hearing of this appeal, we struck out the appeal against the 3rd
accused which is the 2nd Respondent in this appeal as the
prosecution had failed to serve the notice of hearing for three
consecutive occasions but proceeded to hear the appeal in respect
of the 1st, 4th and 5th accused.

4. The 1st Respondent is the 1st accused while the 3rd Respondent
and 4th Respondent are the 4th and 6th accused respectively.

5. We heard the appeal and after due consideration to respective

submissions of counsel, we dismissed the appeal and our reasons
are these.

Background facts:
6. The factual matrix was largely undisputed and is as set out by the
learned DPP in his submission which we adopt with appropriate
amendments. On 21.9.2012 at about 3.00 p.m., PW8 and the
deceased were having a drink at a small park known as Taman
Rusa or Taman Payau (page 169 NOP). At about 6.00 p.m. while
PW8 and the deceased were still drinking, the 3rd accused and a
group of about 20 persons approached them and a quarrel
ensued between PW8 and the 3rd accused (page 170 NOP). PW8
and PW9, who is the mother of PW8 and who had just arrived at
Taman Rusa, were attacked by the 3rd accused and the group of
people. PW8 and PW9 ran to the road (see sketch plan exhibit
P72(a)) chased by the 3rd accused and the group who then went
back to Taman Rusa (see police report exhibit P4).
7.

Subsequently a group of people was seen chasing the

deceased from Taman Rusa, across the road, towards the back of
a row of shops, where Hiap Soon Trading was situated. One of
them was seen to be carrying a baseball bat and one was
carrying a motorcycle helmet. The deceased was found lying in a
pool of blood at a spot marked E in exhibit P72(a), in front of

Hiap Soon Trading. He was pronounced dead at 8.42 p.m. at

Lawas Hospital on that night (see exhibit P10).
8.

What was in dispute was whether the prosecution evidence

had adequately identified 1st, 2nd, 3rd and 4th Respondents/
accused as part of the 20 people that had chased the deceased
and caused his death.
Law:

9. As correctly pointed out by the learned Judge, for the Court to

sustain a prima facie case pursuant to s.149 and s.302 of the
Penal Code, the prosecution needed to prove as follows:
(a) the death of the deceased;
(b) that the deceased died as a result of injuries sustained
by him;
(c) that the injuries of the deceased which resulted in the
deceaseds death were caused by the acts of the accused
persons or some or any of them being members in an
unlawful assembly in prosecution of the common object of
that assembly to commit an offence or to inflict injuries to
the deceased; and

(d) in inflicting the injuries upon the deceased, the accused

persons either caused them with the intention of causing
death, or caused them with the intention of causing such
bodily injuries as the accused persons knew to be likely to
cause the death of the deceased, or caused them with the
intention of causing bodily injuries and such bodily injuries
were sufficient in the ordinary course of nature to cause
death, or caused them with the knowledge that the acts
were so imminently dangerous that they must in all
probabilities cause death and committed such acts without
any excuse for incurring the risks of causing death or such
injuries as aforesaid.
10.

The crucial issue of fact in the High Court was whether the

prosecution had proved that the 1st to 4th Respondent were

among the members of the 20 people who had caused the death
of the deceased. The aforesaid issue in our view was also the
crucial issue before us.
11.

The learned Judge in his grounds had concluded that the

prosecutions evidence fell far short what is required in law for a

prima facie case to be established. In brief, the learned Judge
found as a fact that the prosecution had relied on circumstantial
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evidence

and

those

evidence

had

not proved

that

the

Respondents were being members in an unlawful assembly in

prosecution of the common object of that assembly to commit an
offence or to inflict injuries to the deceased.
Our grounds of decision:
Prosecutions submission:
12.

The learned DPP in his submission had correctly listed two

issues for our consideration and they are as follow:

(a) Whether the application of section 149 Penal Code is the
same as the application of section 34 of the same?
(b) Whether the prosecution succeeded in identifying the
offenders who caused the death of the deceased?

13.

In respect of issue (a) aforesaid, learned DPP referred to the

cases of Mohd Haikal Bin Mohd Khatib Saddaly & Ors v PP (2009)
4 MLJ 305, Francis & Ors v Public Prosecutor (1959) 1 LNS 28,
Cheah Beng Poh & Ors v Public Prosecutor (1984) 2 MLJ 225,
Sukha v State of Rajasthan AIR 1956 SC 513 and Tan Kheng Ann
7 Ors v Public Prosecutor (1965) 2 MLJ 180 and then submitted
that when there are a congregation of five or more persons with a
common object to commit an offence, any person who committed
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the offence would cause the trawlers net of section 149 of the
Penal Code to come down and operate effectively, on all members
of the congregation, irrespective of the fact that the others may not
participate in the act of the commission of the offence, in this case
the hurt caused to the deceased which led to his death.

14.

The complaint here by the learned DPP against the learned

Judge was simply that the learned Judge had wrongly applied the
principle of law set out by him on the factual matrix of the
prosecutions case. Whether or not, the learned Judge had wrongly
applied the aforesaid principle required us to deal with the manner
in which the learned Judge dealt with the evidence.

15.

But before we deal with the learned Judges analysis of the

prosecution evidence, we found that the learned Judge in our view

was fully aware of the implication of section 149 of the Penal Code
and this was evident in paragraph 15, 16 and 17 of his grounds
which read as follow:
15.

S.149 of the Penal Code refers to the common object

of the assembly as opposed to a common intention of

several persons in s.34 of the same Code. A common object
is different from a common intention in that it does not
require proof of a pre-arranged plan or prior concert or a
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common meeting of minds before the attack. An unlawful

object can develop after the people get there: Sukha & Ors
v State of Rajasthan AIR 1956 GC 513; Mohd Haikal Mohd
Khatib Saddly & Ors v PP [2011] 5 CLJ 369; Fam Meng
Siong & Anor v PP [2012] 7 CLJ 557.
16.

S.149 makes every member of an unlawful assembly

at the time of committing of the offence guilty of that offence.

The section creates a constructive or vicarious liability of the
members of the unlawful assembly for the unlawful acts
committed pursuant to the common object by any other
member of that assembly. However, the vicarious liability of
the members of the unlawful assembly extends only to the
acts done in pursuance of the common object of the
unlawful assembly, or to such offences as the members of
the unlawful assembly knew to be likely to be committed in
prosecution of that object. Once the case falls within the
section, the fact that he did nothing with his own hands
becomes immaterial. After such a finding it would be not be
open to the court to see as to who actually did the offensive
act or require the prosecution to prove which of the
members did which of the offensive acts: Lalji & Ors v State
of UP AIR [1989] SC 754.
17.

In this case, the charge was that the accused persons

being members of an unlawful assembly in prosecution of a

common object had caused the death of the deceased.
Culpable homicide and murder are defined in s.299 and
s.300 of the Penal Code respectively.

16.

We had no issue with the learned Judges view of the law as

it had been correctly set out. With that we now move to issue (b)
aforesaid.

17.

It must be noted from the outset that the appeal relating to

the 2nd Respondent (3rd accused) had been struck out by this
Court, the effect of which in our view was simply the acquittal of
the 2nd Respondent remains. In other words, no prima facie case
had been made out against him and the learned Judges analysis
of the evidence relating to 2nd Respondent must be taken by us as
correct.

18.

It was undisputed that the prosecution had relied on

circumstantial evidence to prove its prima facie case. The

testimonies relied on were that of PW3, PW8, PW11, PW12,
PW13, PW27 and PW28. There was no direct visual evidence of
any of the Respondents causing the injuries on the deceased
which led to his death. What the prosecution had was that there
was a quarrel between the 2nd Respondent and the deceased
which had resulted in a chase by a group of people and the
deceased was later found dead.
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19.

For us to sustain the learned DPPs contention, we had to

determine whether or not the learned Judge had evaluated the

evidence properly as required by law.

1st Respondent/ 1st accused:

20.

From the grounds of the learned Judge, he held the view that

the only evidence against the 1st Respondent was from PW28 who
testified that he was the person who drove the red Proton car to
Taman Rusa and also he had not alighted from the car. That was
the sum total of the evidence against the 1st Respondent. The
learned Judge in our view correctly found that the 1st Respondent
did not have a case to answer.

21.

The aforesaid conclusion was not reached without any

thoughtful analysis by the learned Judge and this can be seen

from paragraphs 55 57 which read as follow:

55.

That meant the 1st accused was at all times seated in

the car. The prosecution did not adduce and there was no
evidence that the 1st accused while seated inside the car had
given instructions or directions or had instigated the others to
slap or chase or attack the deceased in prosecution of the
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common object of the unlawful assembly on that night. On

the facts and circumstances of this case, merely being
seated in the car did not make or constitute the 1st accused
to be a member of the unlawful assembly on that night.
56.

There was no evidence by PW28 or by any of the

prosecution witnesses that the 1st accused was involved in

any quarrel or fighting or had slapped the deceased or had
chased the deceased to Hiap Soon Trading where the
deceased was attacked. PW28 also did not testify that the 1st
accused had attacked or had inflicted any injury on the
deceased. If the 1st accused was in any way involved, PW28
would have testified as such but PW28 did not do so.
57.

There was no evidence that the 1st accused was a

member of the unlawful assembly or had intentionally joined

or taken part in the unlawful assembly with a common object
to attack or to commit an offence against the deceased or
had continued to be a member of the unlawful assembly
being aware of the common object to attack or to commit an
offence against the deceased or in prosecution of the
common object of that assembly.

22.

Thus it can be seen that the learned Judge had properly

evaluated the evidence and hence it was not surprising that we

see no submission from the learned DPP on the acquittal of the 1st
Respondent. Further we say that when it had been established

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that the 1st Respondent was not part of the chasing group to
impute an intention common to the group on him would be
speculative at best. Intention of group can be formed at any time
up to the commission of the act which caused the death of the
deceased.

3rd Respondent/4th accused and 4th Respondent/6th accused.

23.

The central issue here is basically whether the evidence of

PW13 had clearly identified the 3rd and 4th Respondents as

persons in the chasing pack.

24.

The learned Judge had found the evidence of PW13 to be

suspect and his reasons can be summarized as these:

(a) PW13 had testified that when he went down to see the
fighting at Taman Rusa, he saw only 5 to 7 persons. This
evidence was found to be inconsistent with the evidence
of PW8 who said that there were about 20 persons
present.
(b) PW 13 had testified that a group of five persons including
the 2nd Respondent, 3rd Respondent and 4th Respondent
were chasing the deceased towards Hiap Soon Trading.
This testimony contradicted what PW28 had said and that
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was when he saw a group of people chasing the

deceased, he saw a red Proton car passed by him which
was driven by 1st Respondent with the 4th Respondent
inside the car. In other words, the 4th Respondent could
not be part of the group then as he was still in the Proton
car.
(c) PW13 in his initial testimony had not mentioned the
presence of the 4th Respondent but did later but could not
explain as to how the 4th Respondent appeared in the
chasing pack.
(d) PW13 had only known the deceased briefly prior to the
incident and he only knew his name through someone.
Hence there was doubt as to whether PW13 had identified
the man he saw being chased was in fact the deceased.

25.

The learned Judge in reaching his conclusion had in fact

examined the testimony of PW13 when re-examined by the

prosecution and this was what he said:
70.

The flaws in his evidence and identification of the 3rd,

4th and 6th accused were amplified in his re-examination by

the learned DPP at pages 287 289 NOP as follows:

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Q:

You agreed with the counsel that the situation was

dark at that time. Thus, how did you manage to identify

Adee, Edwin, Gairil, Jul and Sam?
A: I was told by other people.
Q:

What do you mean you were told by other people?

A: The other people who saw the incident.

Q:

Did you see Adee, Edwin, Gairil, Jul and Sam at

Taman Rusa?
A:

Yes.

Q:

Why you said you were told by other people that Adee,

Edwin, Gairil, Jul and Sam at Taman Rusa?

A:

I saw Edwin and Adee at Taman Rusa but the rest I did

not see at Taman Rusa. I was only told by other people.

Q:

I repeat, did you see Gairil, Jul and Sam at Taman

Rusa?
A:

Yes.

Q:

What do you mean when you said earlier on you did

not see Gairil, Jul and Sam at Taman Rusa?

A:

I did see Gairil, Jul and Sam at Taman Rusa.

Q:

Can you explain why earlier you said you did not see

them?

15

A:

I saw Gairil but I did not see Jul and Sam at Taman

Rusa.
Q:

Why earlier you said you could see Jul and Sam at

Taman Rusa?
A:

First during the fight I saw Adee, Edwin and Gairil.

After a red proton car came I saw Sam. They were chasing
Edwin then I saw Jul.
Q:

When you said you manage to identify Adee, Edwin,

Gairil, Sam and Jul, did you see their faces?

A:

Yes.

Later at pages 290 291 NOP, PW13 was asked as follows:

Q:

You told the court just now you managed to identify

Adee, Edwin, Gairil, Jul and Sam based on their faces. Why
earlier you agreed with the counsel that you only assumed of
their identities?
A:

I agreed because I cannot see their faces clearly and I

only see their figures.

Q:

When did you cannot see their faces clearly?

A:

At Taman Rusa.

Q:

While Gairil, Sam and Jul were chasing after Edwin,

can you see their faces clearly?

A:

Not very clearly.

Q:

What do you mean not very clear?

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A:

Because I saw from quite far.

Q:

At that particular time were you sure they were Gairil,

Sam, Jul and Edwin?

A:

Yes.

71.

Based on his answers to the series of questions asked

of him and to his testimony having been contradicted by the

testimonies of PW3 and PW28, there were serious doubts
whether PW13 actually saw or could identify or was told by
others that the 3rd, 4th and 6th accused were at Taman Rusa
on that night. It also raised serious doubts on his
identification of the 3rd, 4th and 6th accused.

26.

The testimony of PW13 are at page 317 - 355 of volume 1 of

the Record of Appeal and we have examined them with care and
can only conclude that the learned Judge had come to a
conclusion which was not only correct but a reasoned conclusion
premised on established evidence of the prosecution. We have
read the submission of the learned DPP and we are not convinced
by it that the learned Judge had erred.

27.

At this juncture, we must not forget that the prosecution case

was premised on circumstantial evidence and in such context, it is

absolutely necessary to apply strictly the burden of proof and the
17

accused is presumed to be innocent unless the evidence positively

proves guilt beyond reasonable doubt or irresistibly point to the
one and only conclusion of the guilt of the accused. In the context
of this case, the evidence had not passed the aforesaid test in so
far as the identification of the 3rd and 4th Respondents as members
of the chasing pack on the day of the incident.

Conclusion:
28.

We found in this appeal where the learned Judge had dealt

with and subjected the prosecution evidence to maximum

evaluation and had premised his conclusion on established
evidence. Hence we found no merit in this appeal and not safe to
call upon the Respondents to enter their defense bearing in mind
that the law requires that the defense can only be called when the
evidence is such that if the Respondents had remained silent they
would be convicted of the offence as charged. That standard of
proof was one of beyond reasonable doubt which as we had
pointed out above had not been met.

29.

Accordingly, this appeal was dismissed and the discharge

and acquittal of the Respondents were upheld.

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Dated: 26 February 2016

(DATUK DAVID WONG DAK WAH)

Judge
Court of Appeal Malaysia

For the Appellant:

For the 1st Respondent and

standing in for counsel of the
4th Respondent:

For the 3rd Respondent:

TPR Tn. Awang Armadajaya Bin

Awang Mahmud (with him TPR Tn.
Muhammad Tajul Ariffin Bin Musa)

En. Narmal Singh (Assigned Counsel)

NARMAL SINGH & JB SINGH
ADVOCATES
En. Ranbir Singh Sangha (Assigned
Counsel)
RANBIR S. SANGHA & CO.
ADVOCATES & SOLICITORS

Notice: This copy of the Court's Reasons for Judgment is subject to formal
revision.

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