JUDGMENT

Abdul Rahman Sebli JC:

[1] The first respondent was charged with two offences while the second respondent was charged with one offence under the Penal Code. The joint charge against the first and second respondents is as follows:

Bahawa kamu dengan bersama-sama, pada 23 Oktober 2005, jam lebih kurang 4.00 pagi di belakang Public Bank, Pekan Dongonggon, dalam Daerah Penampang, dalam Negeri Sabah, dengan sengaja telah menyebabkan kecederaan ke atas Chee He Fatt (KP No. 611113-12-5479) dan dengan itu kamu telah melakukan kesalahan yang boleh dihukum dibawah seksyen 323 Kanun Kesiksaan dan dibaca bersama seksyen 34 Kanun Kesiksaan .

[2] The second charge against the first respondent relates to an offence of criminal intimidation under s. 506 of the Penal Code and reads as follows:

Bahawa kamu pada 23 Oktober 2005, lebih kurang pukul 3.30 pagi di luar Cafe and Sports, Pekan Dongonggon, dalam Daerah Penampang, dalam Negeri Sabah, telah melakukan ugutan jenayah dengan mengancam hendak mendatangkan cedera kepada Doughty Disimon (KP No. 761108-12-5777), dengan niat menyebabkan Doughty Disimon berasa cemas dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 506 Kanun Kesiksaan .

[3] The respondents claimed trial to the charges and were acquitted and discharged by the learned trial magistrate at the end of the defence case after finding that they succeeded in raising a reasonable doubt in the prosecution case. The Public Prosecutor appealed against that decision. On 17 December 2008, I allowed the prosecution's appeal, set aside the orders of acquittal and discharge and entered convictions against the respondents for the offences they were respectively charged with. Sentence was passed on 2 January 2009. In respect of the offence under s. 323 of the Penal Code , I sentenced the respondents to a fine of RM2,000 each in default three months imprisonment. For the offence under s. 506 of the Penal Code the first respondent was sentenced to six months imprisonment. Execution of the imprisonment sentence was stayed as the first respondent indicated that he intends to appeal to the Court of Appeal. In exercising my discretion to allow stay of execution I took into account the likelihood that the Court of Appeal may not be able to hear the first respondent's appeal within six months from the date of sentencing. The time for appealing against convictions had obviously lapsed. Therefore the appeal, if any by any of the respondents would be against sentence only. I indicated to the parties on 17 December 2008 that I shall give my grounds of decision in due course and I do so now. For the sake of clarity I shall deal with the charges separately.

The Charge Under s. 323 Of The Penal Code

[4] The prosecution case is as follows. On 23 October 2005 at about 3am the victim Chee He Fatt (PW7) was at the Golden Palace Karaoke when he received a call from Doughty Paul Disimon (PW9) asking for help in connection with a fight at SJD Cafe owned by PW9. He proceeded to SJD Cafe which was located in Dongonggon town. On arrival he parked his car behind the Public Bank and right behind SJD Cafe. He went to see PW9 who was waiting outside. PW9 told him to wait for a while as he was closing the Cafe. It was at this time that a double cab vehicle arrived. The time was around 3.30 to 4am. One Petrus Mojuntin who is the first respondent's son came over to where PW7 was and demanded to know where his younger brother was. PW7 replied he did not know and told him to look for his brother himself. Then the first respondent arrived in a Land Rover. He was wearing a sarong, barefooted and armed with a shot gun. The first respondent also demanded to know where his son Junior was. PW7 answered he did not know. PW7 was then pulled by the shirt by Gregory and Mitchell who were the first respondent's nieces. They had joined the first and second respondents to the Cafe. PW7 was pulled to a lane behind SJD Cafe and held against the wall. The f