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2012 MarsdenLR 1456
FEDERAL COURT PUTRAJAYA
ONG TENG FOR & ANOR – Appellant
Versus
PP – Respondent
[Criminal Appeal No: 05-169 & 170-2011(A)]
The court upheld the conviction of the appellants, determining that the trial was fair, no bias existed, and the principal witness's testimony was credible despite allegations of coaching.
Headnote:(A) Penal Code - Section 302 - Charge of murder against appellants - Conviction by trial judge upheld by Court of Appeal - Appeal dismissed. (Paras 1, 2, 44).
(B) Fair trial - Issue of potential judicial bias - It was alleged that the failure of the trial judge to recuse himself amounted to a deprivation of a fair trial; however, the court found no likelihood of bias. (Paras 8, 18).
(C) Credibility of witness - Trial judge and Court of Appeal's assessment of the principal witness was upheld despite allegations of coaching; the witness was found credible. (Paras 26, 32, 43).
(D) Locus standi - The court confirmed that the registered interpreter was authorized to interpret evidence and did not require additional qualification beyond registration. (Paras 20, 24).
Facts of the case:
Both appellants were charged with murder following a shooting incident witnessed by an employee of the deceased on 15 April 2004. The prosecution's case rested primarily on the testimony of this witness, while both appellants contested their involvement.
Findings of Court:
The court upheld the conviction against both appellants, finding no error in the trial judge's evaluations of the evidence or the credibility of witnesses.
Issues: Key issues addressed included the perceived bias of the trial judge, the credibility of the principal witness, and the qualifications of the interpreter.
Ratio Decidendi: The court maintained that a fair trial was afforded and that the trial judge's failure to recuse himself did not exude any bias. The credibility of the principal witness was also deemed reliable based on adequate evaluations of evidence.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. facts of the murder case overview. (Para 1 , 1 , 2 , 4) |
| 2. details of witness testimonies. (Para 5 , 6 , 7) |
| 3. preliminary issues raised by the appellants. (Para 8) |
| 4. analysis of the trial judge's alleged bias. (Para 9 , 11 , 12 , 14) |
[1] Both the appellants were charged for an offence of murder under s 302 of the Penal Code in the Taiping High Court. The charge reads as follows:
"Bahawa kamu dengan niat bersama-sama pada 15 April 2004 jam lebih kurang 5.30 petang di Kuala Sanggar, Selinsing, Semanggol, di dalam Daerah Kerian dalam Negeri Perak, telah melakukan pembunuhan hingga menyebabkan kematian ke atas Tan Ah Ching (L), No KPT 620504-08-5405. Dengan ini kamu telah melakukan satu kesalahan di bawah s 302 Kanun Keseksaan dan boleh dihukum di bawah peruntukan yang sama dan dibaca bersama-sama s 34 Kanun Keseksaan."
[2] On 15 December 2009, the trial judge found both of the appellants guilty of the offence as charged. They were convicted and sentenced to death. Their appeal to the Court of Appeal was dismissed on 4 July 2011. Hence, this appeal to this Court.
[3] We heard the appeal on 23 July 2012. Having heard the parties, we adjourned the matter for our consideration and decision. We now give our decision and the reasons for the same.
Facts
[4] The facts of this case have been fully narrated in the judgment of the High Court. It is also well set out in the judgment of the Court of Appeal. (See Ong Teng For & Anor v. Public Prosecutor [2012] 2 MLJ 666). Thus, we do not propose to repeat them here except to state the salient facts which are essential in determining the issues raised in this appeal.
[5] The prosecution's case was founded on the evidence of the principal witness Sonia a/l Uchor (PW3). PW3 was an illegal immigrant from Myanmar, who was then working for the deceased in the latter's fish farm. PW3's evidence revealed that on 15 April 2004, at about 5.30pm, the appellants had arrived in a speedboat which they parked alongside the deceased's speedboat. PW3 saw the deceased talking to the appellants in an angry tone before arming himself with a piece of wood. PW3 then saw the 2nd appellant taking out a pistol which he aimed at the deceased before handing the pistol to the 1st appellant. At that point the deceased had retreated but the 1st appellant followed him and fired five shots at the deceased. The appellants then left the scene in their speedboat, but shortly later returned. This time, the 1st appellant shot the deceased on the head. Thereafter, both the appellants fled the scene.
[6] In his defence, the 1st appellant alleged that it was the deceased who had abused and assaulted him with a piece of wood. And, it was the deceased who took out the pistol and shot at him once but missed him, and it was at that moment that he pounced on the deceased. In the struggle, the pistol slipped from the deceased's hand and he grabbed the pistol and fired a few times at the deceased. He then threw the pistol in the sea and left the scene with the 2nd appellant.
[7] The 2nd appellant's defence was that he merely accompanied the 1st appellant to meet the deceased at the latter's fish farm for the purpose of inquiring whether the deceased had trespassed into their cockle farm. The 2nd appellant denied taking out a pistol and handing it to the 1st appellant to shoot the deceased. According to him, when he and the 1st appellant arrived at the scene, it was the deceased who started to abuse the 1st appellant verbally, and when the 1st appellant went up to the platform, the deceased was the aggressor who hit the 1st appellant with a piece of wood. The 2nd appellant saw both the deceased and the 1st appellant moving to a corner and subsequently heard a loud sound, "bang, bang". Thereafter, the 1st appellant returned to the boat and they both left the scene.
[8] Before us, Mr Karpal Singh, learned counsel for both the appellants, raised two preliminary issues:
(i) Failure of the trial judge to recuse himself from presiding ove
