Prosecution must establish a prima facie case for each accused, evidenced by consistency among witness testimonies and cooperation in investigations; discrepancies and missing evidence undermine their position.

Awang Kerisnada J:

GROUNDS OF JUDGMENT

[1]The three accused in this case are charged for an offence of extortion under section 388Penal Code

“…..That you jointly with three other persons who are still at large, on the 31st July 2017, at about 12.30 pm , at premise G.B.S Convenience Store, Ground Floor, Lot 1183, Block 10, Kuching Central Land District, Jalan Batu Lintang, Kuching, In The district of Kuching, in the State of Sarawak, in furtherance of common intention of you all, attempted to commit extortion by putting one Azhar bin Jamil (M) (NRIC : 970424-13- 5273) in fear of an accusation against him of having committed an offence punishable with imprisonment for a term which may sixteen to ten years, to hit in possession of unaccustomed good i.e illegal cigarettes, and thereby dishonestly induced the said Azhar bin Jamil to deliver to you each money amounting to RM 1,500.00 and that you thereby committed an offence punishable under section 388Panel CodeSection 34 Section 511

[2]The three accused have pleaded not guilty to the charges and hence a trial was conducted. Throughout the trial, the prosecution had called a total number of 6 witnesses who were

(i)PW-1 Richard Tsia

(ii)PW-2 – Shareen Fang, owner of the GBS store where the alleged offence was said to have bern committted

(iii)PW-3 – Azhar bin Jamil,

[3]In order to have the accused to enter his defence, the prosecution must prove and established a prima facie case against the accused. Here the accused is charged with the offence of extortion with attempt. Thus it is incumbent for the prosecution to prove that there was an attempt to commit extortion. This is because in this case the charge section 388Penal Codesection 511

[4]The first witness in this case is Richard Tsia ( PW 1 ). Before I proceed further, I must note that the learned defence counsel in their submission had submitted that this witness is a surprise witness as his name was never mentioned in the police report which was lodged by Azhar bin Jamil. The defence counsel submitted that PW 1 story on the 3 accused discovery of the cigaretes and that he was the one who called the taukey ( PW 3 ) was not true as in PW 3 POLICE REPORT, Azhar Jamil mentioned that he ( PW 3 ) was the one who called the taukey. I will deal with these points at the later part of this judgment.

[5]I had scrutinized each and every witness testimonies and shall now deal with their weight and merits accordingly. PW 1 is Richard Tsia who is a worker of the GBS store, the place in which the alleged attempted extortion was said to have taken place. In a nutshell PW 1 testimony had stated that on the 31st. July 2017, 3 policemen came to the GBS convenient store at Batu Lintang Kuching. PW 1 said the worker inside the shop told him one policeman asked him whether there were any cigarettes sold in the shop. PW 1 then came out together with this worker and told the three policeman that the convenient store did not sell any cigarettes. PW 1 also mentioned that the said policeman also asked for his identity card and the identity of the other worker. PW 1 also testified that the other worker was Azhar bin Jamil ( PW 3 ).

[6]It is important to note that PW 1 was able to identify all the three policemen. PW 1 continued his testimony by saying that eventually the three policemen found cigarettes in the shop. The three policemen then asked him to pack all these cigarettes in one plastic bag and put the bag at the side door of the store. PW 1 told the policemen that they ( him and PW 3 ) were only workers