Identification evidence supported by CCTV footage and corroborating witness testimonies is sufficient for conviction in cases of armed robbery.

JUDGMENT

Zaleha Rose Pandin JC:

[1] The accused in this case was charged in the Sessions Court at Kuching under section s 395 of Penal Code and was found guilty and convicted after full trial. He was sentenced to ten (10) years of imprisonment and two strokes of (2) whipping.

[2] Unsatisfied with the decision, the accused person appealed against the conviction and sentence of the Learned Sessions Court Judge made on 11 March 2020.

The Charge

[3] The Charge made out against the accused person was:

"That you together, on 11 September 2019 at about 0420 hrs at RA Mart No 48 Lot 14487 Ground Floor s 65 Kuching Town Land District Komersil Swan Batu 4, Jalan Matang, in the District of Kuching, in the State of Sarawak, had committed gang robbery against Nurul Syafiqah Fadli (NRIC 001023-13-0778) and Mohd Irhaidy Bin Mohd Erman (NRIC 000607-13-0523) by robbing property belonging to their employer, to wit, cash monies amounting to approximately RM2000.00, Reload Cards and Dunhill cigarettes and at the time of the robbery, you were with armed with a deadly weapon, to wit, a parang, and you have thereby committed an offence punishable under s 395 of the Penal Code and to be read together with s 397 of the same code."

The Facts Of The Case

[4] On the 24 September 2019, the appellant was charged together with his co-accused, Zaki Amirul Ridzuan bin Sazali (PW4) for an offence of armed gang robbery punishable under s 395 of the Penal Code and read together with s 397 of the same Code. In the midst of the trial, Zaki Amirul Ridzuan bin Sazali (PW4) pleaded guilty to the charge but was not sentenced immediately. Instead, the Court proceeded with the trial against the Appellant first and PW4 was sentenced to 7 years and 3 strokes of whipping only after the Prosecution had closed its case. PW4 was called to testify as one of the prosecution's witness in the Appellant's trial. The Appellant during his defence had gave an unsworn statement and did not call any other witnesses.

The SCJ's Grounds Of Decision

[5] Based on the evidence before her during trial, the SCJ had accepted the evidence of PW1, PW2 and PW4 as truthful witnesses. Both PW1 and PW2 were able to identify both the accused persons during the identification parade as well as during trial in open Court.

[6] PW1 and PW2 testified that the first robber did not cover his face while the second robber had his face covered leaving only his eyes exposed. PW2 identified the 1st Accused as the first robber and the 2nd Accused as the second robber who had his face covered whereas PW1 made a dock identification of only the 1st Accused. The description of PW2 as to the physique and eyes of the 2nd Accused was very much agreed to by the SCJ.

[7] According to the SCJ, the robbery took place in a mini mart under a very good lighting condition and there was no obstruction as depicted by the CCTV footage at exhibit P3. Although the 2nd accused had his face covered but a close observation of the CCTV footage showed that it was merely concealed with a jacket which he wore back to front. His physique and features especially his eyes, complexion and height were still visible for PW 2 to notice. It is based on this that the SCJ accepted the identification by PW2 of the 2nd accused ie the appellant.

[8] In accepting the identification parade as being flawed, but applying the principles in Ong Poh Cheng v. PP , [1998] 4 MLJ 8 where rejection of the identification at the ID parade was in no way fatal to the dock identification of the accused as the robber; applying this, because the appellant was identified in open Court during trial, the identification by PW2 was therefore accepted by the Court.

[9] On PW4's testimony that he had been acquainted with the Accused for about one to two years in which was denied by the appellant, but because the recollection of PW4 on the incident was similar to that of PW1 and PW2 whereby on the day of the robbery, PW4 told the Court that he had entered the mini mart first followed by