Back
2026 MarsdenLR 1851
HIGH COURT MALAYA JOHOR BAHRU
AVINDER SINGH GILL RANJIT SINGH, JC
PP – Appellant
Versus
SEE CHOON YONG @ KHOH RI LING – Respondent
[Criminal Appeal No: JA-41LB-5-09/2025]
An affray requires a bilateral fight in a public place disturbing the peace. Mere assault where one party is the victim does not constitute an affray. Appellate courts will not interfere with findings of fact unless the trial court's decision is fundamentally perverse or misdirected.
Headnote:(A) Penal Code - Sections 159 and 160 - Affray - Definition and punishment - For an affray to occur, it requires two or more persons fighting in a public place, thereby disturbing the public peace. (Paras 2-4)
(B) Criminal Procedure Code - Sections 173(f)(i), 180, and 176(m)(i) - Appellate intervention - An appellate court should not interfere with findings of fact by a trial court unless there was a fundamental misdirection or the conclusion is one that no reasonable court could have reached. (Paras 19, 22)
(C) Evidence - Contemporaneous records - Police reports made proximate to an event are generally considered more reliable than subsequent oral testimony provided at trial. (Para 38)
Facts of the case:
The prosecution appealed against an acquittal for a charge of affray. The prosecution alleged that two individuals engaged in a fight in a public place, disturbing the peace. While one party pleaded guilty, the respondent maintained his innocence, claiming he was the victim of an assault rather than a participant in a mutual fight.
Findings of Court:
The court found that the prosecution's case relied on inconsistent testimony that contradicted contemporary police reports. The evidence showed that the respondent did not participate in a fight but was defensive. The court accepted the testimony of an independent witness and found that the respondent successfully raised a reasonable doubt regarding the elements of the alleged offence.
Issues: Whether the prosecution proved the elements of affray beyond reasonable doubt and whether the trial court failed to evaluate the evidence properly, thus necessitating appellate intervention.
Ratio Decidendi: An offence of affray requires a bilateral exchange of blows; a unilateral assault does not constitute a fight. Where the respondent provides evidence that they were attacked rather than participating in mutual combat, and such evidence is corroborated by independent witnesses and contemporaneous documents, the prosecution fails to establish a prima facie case beyond reasonable doubt.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. criteria and definition of the offence of affray under s 159/160 penal code. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. factual allegations and specific evidence presented by prosecution witnesses. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17) |
| 3. trial court's procedure in establishing a prima facie case. (Para 18 , 19 , 20 , 21) |
| 4. appellate evaluation of factual findings and reasonable doubt. (Para 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37) |
| 5. weight of contemporaneous documents versus testimonial inconsistencies. (Para 38 , 39) |
JUDGMENT
Introduction
[1] This decision is made after an appeal by the prosecution against the judgment of the Mersing Magistrates' Court after a full trial, which acquitted and discharged the respondent on a charge of affray, punishable under s 160 of the Penal Code. The prosecution has appealed against the acquittal.
[2] An Affray is defined in s 159 of the Penal Code as:
"When two or more persons, by fighting, in a public place, disturb the public peace, they are said to "commit an affray'.
[3] The punishment for Affray as stated in the charge [p 9 of Rekod Rayuan Vol 1] and as stated in s 160 of the Penal Code, is as follows:
"Whoever commits an affray shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand ringgit or with both."
[4] Under s 159 of the Penal Code, for the offence of Affray to crystallise, the following criteria must be established;
(a) 2 or more persons;
(b) By fighting;
(c) In a public place; and
(d) Disturb the public peace.
[5] Therefore, if any of the criteria is not fulfilled, it cannot be said to be an affray.
[6] Even where only one party was successful in 'landing blows', as long as all other elements exist, an affray may be deemed to have occurred. In Mohd Ridzuan Gun Abdullah & Anor v. PP [2021] MLRHU 1285, the learned Judicial Commissioner referred to The Law of Crimes', Ratanlal and Dhirajlal, (24th edn) on the element of "sudden fight" wherein it is stated:
"The word "fight" is used to convey something more than a verbal quarrel. "Fight" postulates a bilateral transaction in which blows are exchanged. It takes two to make a fight. A fight is a combat between two persons. It is not necessary that weapons should be used in a fight. An affray can be a fight even if only one party in the fight is successful in landing a blow on his opponent. In order to constitute fight, it is necessary that blows should be exchanged even if they do not all find their target. The word "sudden" implies that the fight should not have been prearranged".
[7] In Public Prosecutor v. Koo Gee Leong & Ors [1961] 1 MLRH 813; [1962] 1 MLJ 101, the Court assessed the learned magistrate's understanding of the phrase "disturb the public peace" and referred to Ratanlal (19th edn), at pp 372 and 373 which state:
"Disturb the public peace: It is essential that there must be a disturbance of the public peace. The offence under this section postulates the commission of a definite assault or breach of the peace. Mere quarrelling in a street over money matters without exchange of blows is not sufficient."
A. The Facts
[8] As stated in the Charge, the respondent and one Tan Kok Boon were charged for causing an affray.
[9] The offence is said to have occurred on 2 October 2022 at or around 10.40am at Kedai Makan Ji Mee Food, Terminal Bas & Teksi, Jalan Jeti dalam Daerah Mersing, di dalam Negeri Johor Darul Takzim.
[10] The prosecution alleged that the Respondent and Tan Kok Boon engaged in a fight in a public place and therefore disturbed the peace and hence were guilty of an affray.
[11] Before the trial, Tan Kok Boon had pleaded guilty and was fined RM500.00 and/or if he failed to pay, he would be subject to a term of one month's imprisonment. The respondent, on the other hand, pleaded Not Guilty.
[12] Therefore, the trial only proceeded against the respondent herein.
[13] It is
