KHAIRUL IKHWAN BIN MUHAMAD KASIM [Jabatan Peguam Negara]

KHAIRUL IKHWAN BIN MUHAMAD KASIM [Jabatan Peguam Negara]

Viewing the incident as a single transaction, the court found the firearm was discharged while the appellant was committing robbery; credible eyewitness identification and ballistic evidence linked the recovered revolver to the shooting; failure to call Najmi did not justify an adverse inference because firearm ownership was not material to identity of shooter and the prosecution offered the witness to the defence; conduct of the appellant in leading police to the weapon was admissible (s8) even if parts of recorded statements were inadmissible (s27); therefore the conviction and death sentence of Ahmad Farid were safe and affirmed.

Citation
B-05(M)-279-07/2019 (Mahkamah Rayuan)
Parties
Appellant: Ahmad Farid bin Mohammad Nasir; Respondent: Pendakwa Raya
Court
M
Jurisdiction
Malaysia
Judgment Date
16 November 2021
Case Number
B-05(M)-279-07/2019 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal / Court of Appeal Judgment (appeal Dismissed for 1st Appellant; 2nd Appellant Previously Acquitted)
Outcome
Appeal dismissed as to 1st Appellant; conviction and death sentence of Ahmad Farid affirmed; 2nd Appellant previously acquitted and discharged
Legal Topics
Robbery, Firearms (increased Penalty) Act 1971 S3, Adverse Inference S114 Evidence Act 1950, Section 27 Evidence Act 1950 (discovery), Identification Evidence, Ballistics
Source Language
Malay/English
Criminal Law Evidence Law Firearms Regulation Robbery Firearms (increased Penalty) Act 1971 S3 Adverse Inference S114 Evidence Act 1950 Section 27 Evidence Act 1950 (discovery) Identification Evidence +1 more

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Parties

Ahmad Farid bin Mohammad Nasir

Appellant

Pendakwa Raya

Respondent

Procedural Posture

Criminal Appeal / Court of Appeal Judgment (appeal Dismissed for 1st Appellant; 2nd Appellant Previously Acquitted)

Legal Issues

  1. 1 Whether elements of robbery (scheduled offence) were proven such that s3 FIPA 1971 applied
  2. 2 Whether an adverse inference under s114(g) EA 1950 should be drawn for non‑calling of Najmi Daniel
  3. 3 Whether statements/exhibits under s27 EA 1950 were admissible and/or relied upon by the trial judge

Ratio Decidendi

Viewing the incident as a single transaction, the court found the firearm was discharged while the appellant was committing robbery; credible eyewitness identification and ballistic evidence linked the recovered revolver to the shooting; failure to call Najmi did not justify an adverse inference because firearm ownership was not material to identity of shooter and the prosecution offered the witness to the defence; conduct of the appellant in leading police to the weapon was admissible (s8) even if parts of recorded statements were inadmissible (s27); therefore the conviction and death sentence of Ahmad Farid were safe and affirmed.

Court Disposition

Appeal dismissed as to 1st Appellant; conviction and death sentence of Ahmad Farid affirmed; 2nd Appellant previously acquitted and discharged

Orders

  • 1st Appellant's appeal dismissed and trial judge's conviction and death sentence affirmed
  • 2nd Appellant's appeal allowed; 2nd Appellant acquitted and discharged