Shaik Daud Ismail JCA:

[1] 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 defe