Shaik Daud Ismail JCA:

The appellant Ong Poh Cheng, was originally charged in the High Court at Penang for an offence under s. 3 of the Firearms (Increased Penalties) Act 1971 (the Act) in that he discharged a firearm with intent to cause death or hurt in the course of a robbery, an offence punishable with death upon conviction. The trial proceeded on that basis but at the close of the prosecution's case, the learned judge found that the prosecution had not succeeded in proving the offence as charged but had succeeded in proving a case under s. 4 of the Act in that he exhibited a firearm in a manner likely to put a person in fear of death or hurt in the course of a robbery. The court accordingly amended the charge and was also of the view that there was evidence to establish that the appellant had discharged the firearm at Constable 89541, Mohd. Tahir bin Mohd. Shah and Constable 109196, Mohd. Yusoff bin Ismail with the intention of causing death or such bodily injury likely to cause death to the said Constables an offence punishable under s. 308 of the Penal Code. In the light of this finding, the learned judge added this charge and called upon the appellant to enter his defence on both the amended and additional charges.

At the close of the defence case, the appellant was found guilty on both the charges. For the offence under s. 4 of the Act , he was sentenced to life imprisonment with six strokes of the rotan and for the offence under s. 308 of the Penal Code, he was sentenced to imprisonment for three years to take effect from his date of arrest.

Encik Karpal Singh, learned counsel for the appellant, relied on one main ground of appeal ie, on the issue of the identification of the appellant. He submitted that the learned judge after concluding that the identification of the appellant at an identification parade was defective, erred in accepting the identification of the appellant in court as the robber. He argued that since the identification of the appellant at the identification parade was defective, the learned judge rightfully rejected that identification. He further argued that in the light of the evidence led by the prosecution, the identity of the appellant as the robber had not been conclusively proved.

Encik Shamsul Sulaiman, the learned Deputy Public Prosecutor, conceded that the main issue in this appeal was the identity of the appellant as the robber. However, he submitted that the dock identification of the appellant was not the only evidence that connected him to the crime. In order to appreciate his line of argument, it is pertinent to consider the facts of the case.

At about 3 to 3.15pm on 18 August 1997, Liew Yeow Wah (SP1) the proprietor of Tai Loong Diamond and Jewellery of 90 Pitt Street Penang, testified that he was in the shop and his brother Liew Khim Wan (SP15) was attending to a customer. He saw the appellant parking his motorcycle outside the shop. SP15 in fact opened the door of the shop for the appellant to enter. On entering he was attended to by SP1. He asked and was shown certain gold ornaments, which he inspected and even asked for more ornaments to be shown. After sometime the customers who were being attended to by SP15, left the shop. Immediately thereupon, the appellant whipped out a gun and declared that he was holding up the shop. The appellant emptied two trays of ornaments into a plastic bag and started to walk out of the shop. As he could not open the door, he flashed his gun at SP15 and demanded the door to be opened. SP15 did as demanded and the appellant left the shop with the gun still in his hand. As soon as he stepped out of the shop. SP1 and SP15 saw the appellant firing his gun in the direction of the adjoining shops. They heard several rounds of gunfire. It so happened that at the very moment the appellant was about to step out of the shop, two patrolling police personnel. SP9 and SP12, were alerted to the robbery and they saw the appellant in the shop with a