[2017] 1 LNS 1880 Legal Network Series

MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK AT MIRI
[CRIMINAL APPEAL NO. MYY-42S-3/5-2017 & MYY-42S-4/5-2017]

BETWEEN

1. LING HOCK SIANG

2. KHOO KOK PING … APPELLANTS

AND

PUBLIC PROSECUTOR ... RESPONDENT

[In the matter of the Miri Sessions Court Criminal Trial No. MYY-62-
19/6-2016]

BETWEEN

PUBLIC PROSECUTOR … COMPLAINANT

AND

1. HWONG NAI CHONG … 1 st ACCUSED

2. LING HOCK SIANG … 2 nd ACCUSED

3. KHOO KOK PING … 3 rd ACCUSED

BEFORE THE HONOURABLE JUDICIAL COMMISSIONER

DR HJ. ALWI BIN HJ. ABDUL WAHAB

IN OPEN COURT

GROUNDS OF DECISION

Introduction

[1] In the Sessions Court, both the 1 st and 2 nd appellants were found
guilty for the offence of gang-robbery punishable under section 395 of
the Penal Code read together with section 397 of the same code and
sentenced to 15 years of imprisonment each. One Hwong Nai Chong

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(1 st Accused) was charged together with both the 1 st and 2 nd appellants

in the Sessions Court and as the said Hwong Nai Chong (1 st Accused)
was a young offender, he was convicted and sentenced to 3 years’
imprisonment.

[2] The 1 st and 2 nd Appellants now appeal to this Court. The 1 st

appellant (Ling Hock Siang) was represented by his counsel Mr. Ranbir
and Mr. Voon Chen Thong while the 2 nd appellant (Khoo Kok Ping) was
unrepresented in this appeal. The 1 st and 2 nd appellants filed their 15
notice of appeal separately and for the purpose of this judgment, both
the appeals were jointly heard as they arose from the same facts.

The amended charge

[3] The amended charge against the 1 st and 2 nd appellants is stated as

follows:

“Bahawa kamu bersama-sama seorang yang masih bebas pada

25.06.2016, jam lebih kurang 12.30 malam bertempat di
Harmony Thai Spa, Pelita Commercial Centre, di dalam
daerah Miri, di dalam negeri Sarawak, telah melakukan
rompakan berkumpulan dengan bersenjatakan parang ke atas
seorang perempuan warga Filipina bernama Gazel Maxwell
Platon, No. Paspot: EC3140740, oleh yang demikian kamu
telah melakukan satu kesalahan yang boleh dihukum dibawah
Seksyen 395 Kanun Keseksaan dibaca bersama Seksyen 397
Kanun Keseksaan.”

Brief facts of the case

[4] Gazel Maxwell Platon (PW1), the complainant in this case, a

Philippine national was working as receptionist at a massage parlour
called Harmony Thai Spa, Pelita Commercial Centre (“the said
premises”) on 25.6.2016 when she was approached by a male person
coming up through the staircase to the said premises and asked her the
closing time for the business that night and if there was anyone still
around in the said premises.

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[5] About a few minutes later after this male person left from the said
premises, another two (2) unknown male persons wearing masks and
each of them was armed with a knife came up through the same staircase
to the said premises and approached PW1 who was seating on the sofa
near the door inside of the said premises.

[6] One of the unknown male persons then placed his knife at the left
side of PW1’s stomach while the other unknown male person pointed
his knife towards PW1. Both these two unknown male persons then took
PW1’s belongings, namely an iPad (P14) and a Samsung Galaxy A8
handphone (P16). PW1 cash money and jewelleries were also not spared
and taken away by the two male persons. After both the unknown male
persons went off, PW1 then lodged a police report (Exh. P1) at the
Central Police Station.

Grounds of appeal by the 1 st appellant

[7] The 1 st appellant has listed out his grounds of appeal as follows:

Defective charge

[8] The 1 st appellant submitted that the charge is defective because

the word “semua” is missing. The charge should read “bahawa kamu
semua” to show that all the three accused persons were jointly
committed the offence with one at large. Without the word “semua” the
1 st appellant argued that each accused wouldn’t know whether each one
of them being charged together with another at large in committing
gang robbery. It was also argued that the element of common intention
under section 34 of the Penal Code was also absent in the charge.

[9] Although the word “bahawa kamu” without the word “semua” as
stated in the charge, it does not connote that there was only one person
charged for this offence because the names of the 1 st and 2 nd appellants
were clearly stated as the accused persons in the charge together with
one Hwong Nai Chong (the 1 st accused). I therefore do not agree that
the charge is defective without the word “semua” after the word
“bahawa kamu”. Besides the three of the accused persons being named
in the charge, there were two others namely, Wong Chung Wu who later

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became the prosecution’s witness (PW2) and one “Ah Kui” who was
still at large. As such I cannot see any confusion arises as to the identity
of the accused persons who committed the offence as charged.

[10] The wordings “bahawa kamu bersama-sama” literally mean “you

together with others” committed the offence. The word “bersama-
sama” and “rompakan berkumpulan” had been clearly stated in the
charge and read to the accused persons and they understand what
offence they were being charged for. The absence of s. 34 of the penal
Code is a non-issue.

[11] By s. 391 of the Penal Code the offence of “gang robbery” is

defined as “when two or more persons conjointly commit or attempt to
commit a robbery… every person so committing, attempting or aiding
is said to commit gang robbery”. The learned DPP argued that the
definition of gang robbery in itself is sufficient to show that such
offence is committed by more than one person. As such, there is no
requirement to further include s. 34 of the Penal Code into the charge
as it will only be overlapping with s. 395 of the same which provides
for the punishment of gang-robbery offence.

[12] The learned DPP produced a case authority i.e. Mariappan

Valiatham v. Public Prosecutor [2016] 1 LNS 1557 to show that the
charge of gang-robbery therein does not include s. 34 of the Penal Code.
In that case, the learned judicial commissioner in his judgment stated
that both the accused persons had acted with design and in concert with
each other to commit gang-robbery and thus evidenced common
intention.

[13] Likewise, in the present case, the evidence was adduced by PW1
and PW2 that one “Ah Kui” who was still at large went up to the said
premises first, followed by the 1 st and 2 nd appellants. PW2 also gave
evidence that one Hwong Nai Chong (1 st Accused) was the driver of the
car which was waiting for both the 1 st and 2 nd appellants downstairs. It
is clear that the 1 st and 2 nd appellants were committing gang-robbery
and they were acting in concert with one “Ah Kui” and one Hwong Nai

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Chong (1 st Accused), thus evidenced common intention to commit such

offence.

[14] I am also of the view that the evidence recorded in the notes of
proceedings did not suggest that both the 1 st and 2 nd appellants were
prejudiced or misled. PW1 clearly testified that both the 1 st and 2 nd
appellants went up to rob her belongings on the date and time stated in
the charge. Another prosecution witness i.e. Wong Chung Wu (PW2)
also gave evidence for the prosecution that the two appellants were
going up to the said premises while he remained in the car. Although
PW2 can be considered as an accomplice who was present before and
after the commission of the offence, his evidence is corroborated by the
evidence of PW1 in material particulars. The evidence of both PW1 and
PW2 were consistent with Exh. P1 i.e. the police report lodged by PW1
at the Central Police Station .

[15] On the issue of the weight to be given to the evidence of PW2

being an accomplice, the learned Sessions Court Judge (“SCJ”) had
adequately assessed PW2’s credibility where he found that his evidence
was consistent with the evidence of other prosecution witnesses
particularly PW1 and Exh. P1 when he ruled in his grounds of decision
as follows:

“To determine whether there is corroboration in PW2’s

evidence, the evidence of the prosecution’s witnesses must be
scrutinised. The evidence of PW2 confirmed the evidence of
PW1 of the incident when “Ah Kui” first went up to the said
premise before the 2 nd accused and 3 rd accused then followed
suit after Ah Kui had gone down. PW2 in fact confirmed that
“Ah Kui” was the one who went up the said premise to ask
PW1 if anyone was inside the premise. PW2 also confirmed
that the 2 nd accused and 3 rd accused who subsequently went up
the said premise. PW2’s evidence are consistent with the
evidence of PW1 who said that at first there was one unknown
male person who came up to the said premise and asked her if
anyone was inside the premise and what time the premise will
close. PW1’s evidence clearly corroborated PW2’s evidence in

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material fact. PW2 also confirmed that it was the 2 nd accused

and 3 rd accused who robbed the premise. PW2 also said that it
was the 1 st accused who drove the said car QML3531 to the
location of the said premise. PW2 had identified the said car
QML3531 through the photographs P10(1) and (2).
Corroborate evidence can also be found in the evidence of
PW3, where the raiding party inspected the said car QML3531,
the same car PW2 said was used by the accuse persons to the
location of the premise, and inside the said car were found the
incriminating evidence, P14 and P16 which were identified by
PW1 as the items taken from her. These facts or evidence are
not “mere coincidence”, rather all these evidences
corroborate the evidence of PW2. Therefore, I find that the
evidence of PW2 have been satisfactorily corroborated by the
other prosecution witnesses in material fact, particularly
PW1, PW3 and PW7 and the items seized.”

There is a contradiction as regards to the actual time of the

commission of the offence

[16] The first appellant also raised on the issue of contradiction in

regard to the time of the commission of the alleged robbery as stated in
the charge which is not reflected by the evidence given by the
prosecution witness. The confusion is because of the used of the words
“12.30 a.m.” and “12.30 p.m.”

[17] There is no dispute in the Sessions Court that the offence was
committed during night time and not during day time. This is clearly
stated in the charge that the offence was committed at “12.30 malam”.
When PW1 gave evidence, it was related to the time when she was about
to close the business on that day which is obviously at night time.
Likewise, when PW2 gave evidence it was in relation to the facts that
were happened during night time and not the day time. Their evidence
cannot be confused with the manner in which they were asked by the
learned DPP in the Sessions Court by using 10 the word “p.m.” instead
of the word “a.m.”. It was admitted by the learned DPP that he used the
word “p.m.” due to slip of tongue and what he really intended to mean

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was at night time. I accepted the explanation by the learned DPP as a

genuine mistake because apart from the few occasions he used the
words “p.m.”, the rest of the time he was using “a.m.” which refers to
the time around midnight. Both of the appellants were not misled or
confused by the wrong used of the words “p.m.” as they never disputed
the actual time of the commission of the robbery at the trial in the
Sessions Court and the evidence of the other prosecution witnesses
including police officers who testified on the seizure of the exhibits and
the arrest which happened after 12.30 a.m. on the on 25.6.2016.

Confession

[18] The 1 st appellant also raised the issue regarding the alleged
confession made by Hwong Nai Chong (1 st Accused) and the 1 st
appellant to ASP Nagulan A/L Maniam (PW3) and L/Kpl Tew Chia
Chuen (PW4) which should be expunged. From the reading of the notes
of proceedings, the ipad and the handphone were found at about 1.45
a.m. the same day inside a car QML 3531 driven by Hwong Nai Chong
(1 st Accused) and the 1 st appellant on the passenger seat. When PW3
testified that both Hwong Nai Chong (1 st accused) and the 1 st appellant
admitted to him that both items seized from the car were the proceeds
of a robbery, in my view, it does not amount to a confession in the sense
that the offence of robbery was actually committed by them. The
learned SCJ did not at any point of time consider the issue of confession
which in my view is the correct position as the information given by
the Hwong Nai Chong (1 st accused) and the 1 st appellant cannot be
construed to mean a confession made by them and there is no basis for
such evidence to be expunged. The statement by both Hwong Nai
Chong(1 st accused) and the 1 st appellant were given to justify on the
finding of the exhibits by PW3 and not an admission by both that the
exhibits were the items they robbed from the premises concerned
(Krishna Rao Gurumurthi & Another v. Public Prosecutor [2007] 4 CLJ
643).

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Section 27 information

[19] The 1 st appellant also argued that his information leading to the
discovery of the parang, jacket and masks were not admissible. The
evidence by PW3 and PW4 revealed that based on the information
received from the 1 st appellant, they went to Lot 380 MDL Garden led
by the 1 st appellant where they found and seized the exhibits used in
the robbery. In my view this information is admissible pursuant to
section 27 of the Evidence Act.

The 1 st appellant’s allegation of being hit by a policeman

[20] The 1 st appellant alleged that he was hit by a policeman “Hafiz”

but he could not prove further as to exact time and place where such
incident happened. The so-called policeman named “Hafiz” was never
called as witness in this case to answer to such allegation. It is unfair
for this Court to accept the allegation by the 1 st appellant without
further examination on the truth of this allegation.

Identity of the 1 st and 2nd appellants

[21] The 1 st appellant also argued that the identity of the 1 st and 2 nd
appellants as the alleged robbers was not established as they were of
the same height contrary to the evidence of PW1 who testified that one
of the persons who robbed her was tall and the other one was short. I
do not think that PW1’s evidence on the different height of the robbers
in the circumstances of this case can be used as an indicator to disprove
the identity of the 1 st and 2 nd appellants.

[22]PW1 could have given a wrong estimation of the height of both

appellants taking into account the conditions in which PW1 were in
when this dreadful encounter took place. PW1 was at the disadvantage
as when she observed both appellants who were moving around, she
was then in the sitting position while the Court could see both the 1 st
and 2 nd appellants standing side by side to say that they were of the
same height.

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[23] The alleged wrongful identity by PW1 was not argued in the
Sessions Court by the 1 st and 2 nd appellants. The identity of the 1 st and
2 nd appellants was well established based on the evidence of PW2 who
was together with both the appellants in the same car before and after
the commission of the robbery. Both the appellants went upstairs after
Ah Kui returned back from the said premises. PW2 was not cross-
examined on this issue of identity of 1 st and 2 nd appellants.

The alibi of the 1 st appellant

[24] On the issue of alibi, the learned SCJ at pages 16 and 17 of the
Supplementary Record of Appeal (Grounds of Decision) states as
follows:

“… As to the alleged alibi, it was only raised at the defence

stage. Even prior to the commencement of the trial, nothing
was said of any alibi by any of the accused persons. There was
no notice of alibi given, nor did any of the accused persons
informed that any one of them wished to raise the defence of
alibi, otherwise the court would have given the opportunity for
the prosecution to investigate further on this notice of alibi, if
any had been given.”

[25] From the notes of proceedings, the learned SCJ had already
informed the 1 st and 2 nd appellants at the earliest available opportunity
before the commencement of the trial that if the defence wishes to rely
on the defence of alibi, they must inform the DPP in writing, failing
which the Court will not entertain such defence of alibi.

[26] It clearly shows that the 1 st and 2 nd appellants were not only
informed of their right but guided by the Court to file in the notice of
alibi. Such notice was not filed throughout the trial and the indication
to raise the defence of alibi with particular details was not made known
by the 1 st and 2 nd appellants during the prosecution case but it was
introduced by the 1 st appellant by way of ambush during the defence
case.

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[27] It was therefore incorrect for the 1 st appellant to submit that the
learned SCJ had failed to explain on the conduct of the proceedings to
both the 1 st and 2 nd appellants in particular on the issue of the filing of
the notice of alibi. Despite being informed to file one, the 1 st and 2 nd
appellants were adamant by not taking any action to file such notice.
Furthermore, the notes of proceedings also show that the 1 st appellant
was able to conduct his cross-examination by putting sensible questions
to the prosecution witness and did not seem to face any unusual
difficulty.

The appeal by the 2 nd appellant Khoo Kok Ping (unrepresented)

[28] The 2 nd appellant had prepared a written submission which I have

duly considered and I found that the appeal against the conviction are
to be without merits. The gist of the 2 nd appellant’s appeal was basically
the same with the grounds of appeal raised by the 1 st appellant.

The appeal on sentencing

[29] The 1 st and 2 nd appellants were sentenced to 15 years’

imprisonment from date of their arrest and they were also given eight
(8) strokes of the rottan each.

[30] In passing the sentence on both the 1 st and 2 nd appellants, the

learned SCJ had given his reasons as follows:

“1. The accused persons have claimed trial and Prosecution

has called 7 witnesses and tendering of several exhibits.
Likewise, the defence have called one witness, a convicted
witness and the Prisons authority had to bring along this
prisoner to Court.

2. An offence under section 395 Penal Code read with

section 397 of the same Code, should be treated as a serious
offence as in this case. The punishment provided shows the
seriousness of the offence.

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3. In passing sentence, the Court must consider public

interest and in this case, public interest is that the public
would want offenders of this type of offence be punished
severely. In this case also, knives (parang) had been used in
the commission of the offence although only one was
recovered. The accused persons must be lucky enough that the
victim PW1 was not physically hurt in the incident although
fear was caused to her.

4. The Court must pass a sentence that not only it deters the
accused persons from committing the same offence in future,
but also deter any would-be offenders from trying to commit
the same offence.

5. The Court has also considered the mitigating factors of

the accused persons and the aggravating factors put forward
by the prosecution. I feel that the 2 nd and 3 rd accused persons
are adult enough to realise and understand the nature and
consequence of their actions.

6. Having a clean record is not a strong ground for a

lenient sentence especially for an offence like the present.

7. Having considered the above factors, the 2 nd accused and

3 rd accused were each sentenced to 15 years imprisonment
from date of arrest and each given 8 strokes of the rottan. As
for the 1 st accused, I have requested for the Welfare Report of
his as he is below 21 years of age. After a few adjournments
and having read the Welfare Report of the 1 st accused and
considering the above factors, the Court sentenced the 1 st
accused to three (3) years imprisonment from date of arrest
but no order as to whipping against the 1 st accused because of
his young age”.

[31] Clearly, the learned SCJ had outweighed the plea of mitigation in
favour of the public interest in view of the seriousness of the offence
the accused persons were charged with. In my view the learned SCJ was

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not in error when he took the course he did as the imprisonment terms
imposed is within his discretionary limits and upon considering all the
relevant factors before him.

Conclusion

[32] Based on the foregoing reasons, I affirm the conviction and

sentence passed by the learned SCJ. Appeal is dismissed accordingly.

(ALWI HJ ABDUL WAHAB)

Judicial Commissioner
High Court Miri

Date of Delivery of Decision: 27 NOVEMBER 2017

Counsel:

For the 1st appellant - Voon Chen Thong & Ranbir Singh; M/s Ranbir
Singh & Co
Advocates

For the 2nd appellant - Khoo Kok Ping (in person and unrepresented)

For the Defendant - Wan Mohd I’zzat Wan Abdullah DPP; Attorney
General Chambers
Malaysia

Notice: This copy of the Court’s Ground of Decision is subject to

editorial revision.

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