The prosecution must prove all elements of theft beyond reasonable doubt, including possession and intent, with the court emphasizing the need for credible evidence and the prosecution's obligation to secure witnesses.

JUDGMENT

Nur Farahain Roslan M:

A. Background

[1] This case was initially heard before another Magistrate, Tuan Mohamad Fared bin Abdul Latif. On 1 July 2022, he was transferred to the Ministry of Home Affairs. This case was then fixed to be heard before Magistrate Puan Amanina binti Mohamad Anuar but unfortunately, she was away on maternity leave which in turn resulted to this case to be transferred to this court on 7 September 2022 by the Supervisor for the Criminal Magistrate Courts, Tuan M Bakri bin Abd Majid.

[2] On 10 February 2023, I had fixed this case for decision at the end of the Prosecution's case where I decided that the Prosecution had successfully established a prima facie case and all of the five accused were ordered to enter defence. The case continued with the accused's defence and on 3 November 2023, I had fixed this case for decision. Dissatisfied with my decision, the Deputy Public Prosecutor filed a Notice of Appeal on 15 November 2023.

B. The Charges Against The Accused

[3] The five accused were charged for two offences. The first charge being under s 397 of the Penal Code and the second charge being under s 380 of the which was amended on 13 July 2020. The charges proffered against the accused in their original language read as follows:

"PERTUDUHAN PERTAMA

Bahawa kamu dengan cara niat bersama-sama pada 7 September 2018 jam lebih kurang 04.30 petang bertempat di Basement 1 Sastra U-Thant Condominium No 8 Lorong Ampang 2 Taman U-Thant di dalam daerah Wangsa Maju dalam Wilayah Persekutuan Bandaraya Kuala Lumpur, telah mencuri wang tunai RM2 juta milik pengadu Chin Boon Long, No K/P: 680709-01-5149, oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum dibawah s 379 Kanun Keseksaan dibaca bersama s 34 Kanun Keseksaan dan boleh dihukum dibawah Kanun dan seksyen yang sama."

"PERTUDUHAN KEDUA

Bahawa kamu dengan cara niat bersama-sama pada 7 September 2018 jam lebih kurang 04.30 petang bertempat di A-8-6 Sastra U-Thant Condominium No 8 Lorong Ampang 2 Taman U-Thant di dalam daerah Wangsa Maju dalam Wilayah Persekutuan Bandaraya Kuala Lumpur, telah mencuri dalam bangunan tempat kediaman daripada milikan Chin Boon Long, No K/P: 680709-01-5149, iaitu wang tunai RM4.5 juta dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum dibawah s 380 Kanun Keseksaan dibaca bersama s 34 Kanun Keseksaan dan boleh dihukum dibawah Kanun dan seksyen yang sama."

C. The court's Duty At The End Of The Prosecution's Case

[4] As stipulated under s 173(f)(i) of the Criminal Procedure Code (hereinafter referred to as "the CPC "), the prosecution bears the burden to establish a prima facie case against the accused at the end of the prosecution's case. According to s 180(4) of the , in order to make out a prima facie case, the prosecution must adduce credible evidence proving each and every ingredient of the said offence.

[5] I refer myself to the case of PP v. Mohd Radzi Abu Bakar, [2005] 6 MLJ 393, where the Federal court has laid down the steps that should be taken by the court at the close of the prosecution's case as follows:

"(i) the close of the prosecution's case, subject the evidence led by the prosecution in its totality to a maximum evaluation. Carefully scrutinise the credibility of each of the prosecution's witnesses. Take into account all reasonable inferences that may be drawn from the evidence. If the evidence admits of two or more inferences, then draw the inference that is most favourable to the accused;

(ii) ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me? If the answer to that evidence is "Yes", then a prima facie case has been made out and the defence should be called. If the answer is "No" then, a

(iii) prima facie case has not been made out and the accused should be acquitted;

(iv) after the defence is called, the accused elects to remain silent, then convict;

(v) after