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2014 MarsdenLR 2454
HIGH COURT SABAH & SARAWAK KOTA KINABALU
JOEDIR JOHARI & ORS – Appellant
Versus
PP AND OTHER APPEALS – Respondent
[Criminal Appeal No: BKI-42S-1/1-2014 BKI-42S-2/1-2014; BKI-42S-31/12-2013 & BKI-42S-32/12-2013]
Identification through recognition suffices for conviction; procedural omissions regarding alibi do not undermine trial fairness.
Headnote:(A) Criminal Procedure Code - Section 402A - Armed robbery charges against four accused individuals - Convictions upheld by the appeal court - Evidence including witness testimonies and CCTV footage established a prima facie case - Defence of alibi not raised appropriately - Sentence of eight years imprisonment and two lashes not found disproportionate. (Paras 5, 9, 23)
(B) Identification evidence - Court ruled that recognition, rather than mere identification, is sufficient for conviction - The requirement of identifying greatness in CCTV recorded footage is not essential for determination of guilt. (Paras 10, 15)
Facts of the case:
The accused were charged with armed robbery of a cyber cafe operator, involving weapons and injury to the victim. Evidence included witness testimonies and video footage from CCTV, albeit with timestamp discrepancies. (Paras 2-4)
Findings of Court:
The Sessions Court found the accused guilty, substantiating their findings with sufficient evidence to prove the case beyond reasonable doubt. (Paras 23)
Issues: The adequacy of identification evidence, the procedural issues surrounding the alibi defence, and the correctness of the sentencing. (Paras 9, 21)
Ratio Decidendi: The court emphasized that evidence of recognition is sufficient for conviction, and procedural omissions at the early stages of the trial were deemed non-prejudicial. (Paras 15, 22)
Result: Appeals dismissed.
| Table of Content |
|---|
| 1. overview of appeals and charges (Para 1 , 1 , 2 , 3 , 4) |
| 2. summary of prosecution’s evidence (Para 5 , 6) |
| 3. defense's arguments and court findings (Para 7 , 8) |
| 4. assessment of cctv evidence (Para 9 , 10 , 11) |
| 5. issues regarding identification evidence (Para 12 , 13) |
| 6. discussion on common intention (Para 14 , 15 , 16) |
| 7. analysis of procedural issues (Para 17 , 19 , 21) |
[1] There are four appeals before me namely BKI 42S-1/1-2014, BKI 42S-2/1-2014, 30 BKI 42S-31/12-2013 and BKI 42S-32/12-2013. All the appeals emanate from two Sessions Court cases.
Background Facts
[2] The four accused person were charged in two different cases (BFT 62-13/122012 and BFT 62-14/12-2012). Both charges stem from the same incident whereby four accused persons were alleged to have robbed the operator of a cyber cafe. In case BFT 62-13/12-2012, Joedir bin Johari (Joedir) and Mohd Jay Jay Rodjit (Jay Jay) were charged as follows:
Bahawa kamu dengan niat bersama (4) orang yang masih bebas pada 18hb November 2012, lebih kurang jam 4.30 pagi, bertempat di dalam bilik sewa, tingkat satu, Membakut Jaya, dalam Daerah Beaufort, dalam Negeri Sabah, telah melakukan rompak dengan bersenjatakan pedang samurai dan mendatangkan kecederaan ke atas penama Theng Hock Sing, L/25 Tahun, KPT No: 861127-52-6267, B/Cina, oleh itu kamu telah melakukan kesalahan yang boleh dihukum dibawah s 395/397 Kanun Keseksaan dan dibaca bersama s 34 Kanun yang sama.
[3] In case BFT 62-14/12-2012, Noorazmil bin Kaling (Noorazmil) and Ghazali Wong Abdullah (Ghazali) were charged as follows:
Bahawa kamu dengan niat bersama (2) orang yang sudah dituduh dan (2) orang yang masih bebas pada 18hb November 2012, lebih kurang jam 4.30 pagi, bertempat di salam bilik sewa, tingkat satu, Membakut Jaya, dalam Daerah Beaufort, dalam NBegari Sabah, telah melakukan rompak dengan bersenjatakan pedang samurai dan mendatangkan kecederaan ke atas penama Theng Hock Sing, L/25 tahun, KPT No: 861127-52-6267, B/Cina, oleh itu kamu telah melakukan kesalahan yang boleh dihukum dibawah s 395/397 Kanun Keseksaan dan dibaca bersama s 34 Kanun yang sama.
[4] All accused persons were unrepresented at the arraignment when the charges were first read. Subsequently, the prosecution successfully applied for a joint trial of both cases. Datuk Norbert Chin represented all four accused persons. At the conclusion of the case for the defence, the learned Sessions Court Judge convicted all four accused persons of the respective charges. He imposed a sentence of eight years imprisonment and two lashes of the whip on each four accused persons. The four accused persons have appealed against the conviction and sentence. The prosecution has appealed against the sentence on all four accused persons on ground of inadequacy.
Summary Of Evidence Before The Sessions Court
[5] The case of the prosecution was that the four accused persons robbed Then Hock Sing (PW 1) who was a cyber cafe operator at around 4.30 am on 18th November 2012. PW 1 said that he was asleep in his rented room when three persons whom he could not identify rushed in while being armed with two parangs. The rented room which served as the quarters of PW 1 was on the first floor whereas his cyber cafe was just next door. PW 1 was slashed on the shoulder and kicked in the face by the assailants. He said that the lighting was poor in his room and he candidly admitted he could not identify the accused persons as the persons who robbed him. PW 1 said he lost a laptop computer, a bag and a hand phone in the incident. His bag contained his bank cards and RM 2000.00. After the assailants left his room, he went out and saw them driving away in two cars. He went to his cyber cafe next door and sought assistance from his workers to send him to Beaufort hospital. The second important witness for the prosecution was PW 7 (Ismail bin Mahmud aka Bob). PW 7 said that he worked that night in the cyber cafe which belonged to PW 1. He received a call that night from one Norli wh
