Hamid Sultan JC::

[1] This is my judgment in respect of the prosecution’s appeal against the decision of the learned magistrate, who, without defence being called, acquitted the respondent, on the ground that the prosecution has not established a prima facie case.

[2] The respondent was charged under s 394 of the Penal Code which read as follows:

If any person, in committing or in attempting to commit robbery,

voluntarily causes hurt, such person, and any other person jointly

concerned in committing or attempting to commit such robbery, shall be

punished with imprisonment for a term which may extend to twenty years,

and shall also be liable to fine or to whipping.

The respondent in this case has been alleged to have entered into a house and assaulted a lady therein and tied her up and stolen the items as set out in the charge. Nobody witnessed the crime. Further, the victim was not able to identify the perpetrator of the crime at the time of incident. The charge reads as follows:

Bahawa kamu pada 20 Jun 2005 jam lebih kurang 6.30 pagi, di alamat No

90A, Lot 2416, Lorong Rubber Batar 14A, di dalam Bandar Kuching, di

dalam Negari Sarawak, di dapati dengan sengaja melakukan samun harta

kepunyaan Ch’ng Siew Ngo, No KP: 220424–13–5038 dan dengan sengaja

mencederakan mangsa secara kekerasan. Oleh yang demikian kamu telah

melakukan satu kesalahan yang boleh [*287] dihukum di bawah s

394 Kanun Keseksaan. Oleh yang demikian kamu telah melakukan satu

kesalahan yang boleh dihukum di bawah s 394 Kanun keseksaan. Oleh yang

demikian kamu telah melakukan satu kesalahan yang boleh dihukum di

bawah s 394 Kanun keseksaan.

[3] The petition of appeal reads, inter alia, as follows: The learned magistrate erred in fact and in law when he; (i) held that there was no credible nexus to implicate the offender’s (respondent) involvement in this case, without taking into account the totality of the evidence adduced by the prosecution witnesses and that the evidence of all the prosecution’s witnesses remained unchallenged by the respondent; (ii) asserted that the identification parade cannot be a safe ground of conviction since the complainant in her testimony positively asserted that she did not see the face of the criminal and that mere identification as to race is insufficient, when at all times there were other sufficient evidence to implicate and convict the respondent; (iii) he took into account irrelevant considerations and failed to give due weight to relevant considerations, in particular, the fact that PW8 had corroborated the evidence of PW2 as to identification of the respondent; (iv) he considered that identification by PW2 was by race of the respondent when at all time there is no evidence to that effect; (v) he opined that the confession communicated by the evidence of the father was not in accordance with criminal law, which is self incriminating when at all time the evidence was not confession and therefore the father’s evidence should be admitted; (vi) when he held that the RM10,000 could be obtained through various means without taking into account all relevant considerations and the totality of the evidence which incriminated the respondent with the said sums of money recovered; in particular the evidences of PW1, PW2, PW5, PW6 and PW7.

[4] Section 307(6) of the Criminal Procedure Code 1965 (‘CPC’) requires in a mandatory nature for the appellant to set out ‘the definite particulars of the point of law or fact” in the petition of appeal. I note in this instance, this appeal is grounded on the fact that the appellant has established a prima facie case before the learned magistrate but the learned magistrate has refused to rule so. To succeed in this appeal the prosecution must show at the prima facie stage that they have established; (i) all the elements of the offence; (ii) proved the ‘fact in issue” according to law as set out in s 3 of Evi