GROUNDS OF DECISION

Steve Ritikos:

At The End Of Prosecution's Case

The Charge

[1] The three Accused persons were charged under s 395 of the Penal Code and read together with s 397 of the same Code, an offence of gang robbery, armed with a deadly weapon, on one Lau Mou Tai (the complainant).

Duty Of The Prosecution At The End Of The Prosecution's Case

[2] The duty of the court at the end of prosecution case is spelt out in s 173 Criminal Procedure Code and read as follows:

"(1) When the case for the prosecution is concluded, the court shall consider whether the prosecution has made out a prima facie case against the accused person.

(2)If the court finds that the prosecution has not made out a prima facie case against the accused, the court shall record an order of acquittal.

(3)If the court finds that a prima facie case has been made out against the accused on the offence charged the court shall call upon the accused to enter on his defense.

[3] The word " prima facie " has been defined as follows:

In Balachandran v. Public Prosecutor [2004] 2 MLRA 547; [2005] 2 MLJ 301; [2005] 1 CLJ 85; [2005] 1 AMR 321 where his Lordship Augustine Paul commented at p 315:

"a prima facie case is therefore one that sufficient for the accused to be called upon to answer This in turn means that the evidence adduced must be such that it can be overthrown only by evidence rebuttal'

On the test of prima facie, Augustine Paul JCA in Balachandran v. Public Prosecutor (supra) at p 316 reiterated:

"The test at the close of the case for prosecution would therefore be: is the evidence sufficient to convict the accused if he elects to remain silent. If the answer is in the affirmative then a prima facie case has been made out. This must as of necessity require a consideration of the existence of any reasonable doubt in the case for the prosecution. If there is any such doubt there can be no prima facie ".

In ; [1999] 4 MLJ 462; [1999] 4 CLJ 242 , His Lordship said:

"A prima facie is made out where there is sufficient credible prima facie evidence establishing each essential ingredient of the offence for a supposition of guilt, if not answered by the accused".

The Elements Of The Charge

[4] The elements under s 395 of the Penal Code read together with s 397 Penal Code are:

a. The accused committed gang robbery;

b. The accused was armed with a deadly weapon in committing the robbery.

[5]"Robbery" is defined under s 390 Penal Code as follows:

"390.

(1)In all robbery there is either theft or extortion.

(2)Theft is robbery, if, in order to commit theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death, or hurt, or wrongful restraint, or fear of instant death, or of instant hurt, or of instant wrongful restraint.

(3)Extortion is robbery, if the offender, at the time of committing the extortion, is in the presence of the person put in fear and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. "

[6] Whilst "gang robbery" is defined in s 391 of the same Code as follows:

"391.

When two or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and of persons present and aiding such commission or attempt, amount to two or more, every person so committing, attempting, or aiding, is said to commit gang-robbery".

The Evidence And Findings Of The court.

I. The First Element Of The Charge:

[7] The prosecution called 4 witnesses to prove its case. The main witnesses are PW3 (Lau Mou Tai @ Lau Hieng Hung) (the Complainant) and PW4 (Inspector Nur Hasanah Jamil) (the Investigating Officer).

[8] PW3 testified that on 30 July 2017 at about 2.00 pm