AHMAD FARID BIN MOHAMMAD NASIR [Jabatan Peguam Negara]

AHMAD FARID BIN MOHAMMAD NASIR [Jabatan Peguam Negara]

The Court held the firearm was discharged while the robbery was being committed (the events form a single transaction) and the prosecution proved identity and intent by witness identification and ballistic/serviceability evidence; non‑calling of Najmi did not justify s114(g) adverse inference because ownership was not material and the prosecution offered the witness; statements in police reports under s27 were not relied on as substantive evidence but the accused's conduct in pointing out the firearm was admissible (s8/s27). Therefore conviction and death sentence for the 1st Appellant was upheld while the 2nd Appellant was acquitted on appeal.

Citation
B-05(M)-278-07/2019 (Mahkamah Rayuan)
Parties
Appellant: Ahmad Farid bin Mohammad Nasir; Appellant: Khairul Ikhwan bin Muhamad Kasim; Respondent: Pendakwa Raya; Accused: Nik Mohd Zain bin Nik Mat
Court
M
Jurisdiction
Malaysia
Judgment Date
16 November 2021
Case Number
B-05(M)-278-07/2019 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal / Court of Appeal Judgment on Appeals From High Court Conviction/sentence
Outcome
1st Appellant's appeal dismissed; conviction and death sentence affirmed. 2nd Appellant's appeal allowed; acquitted and discharged. 3rd Accused previously acquitted at close of prosecution case.
Legal Topics
Robbery, Firearms (increased Penalty) Act 1971 S3, Adverse Inference S114(g) Evidence Act 1950, Section 27 Evidence Act 1950 (information Leading to Discovery), Identification Evidence, Pointing Out and Discovery
Source Language
Malay/English
Criminal Law Evidence Law Ballistics/forensics Robbery Firearms (increased Penalty) Act 1971 S3 Adverse Inference S114(g) Evidence Act 1950 Section 27 Evidence Act 1950 (information Leading to Discovery) Identification Evidence +1 more

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Parties

Ahmad Farid bin Mohammad Nasir

Appellant

Khairul Ikhwan bin Muhamad Kasim

Appellant

Pendakwa Raya

Respondent

Nik Mohd Zain bin Nik Mat

Accused

Procedural Posture

Criminal Appeal / Court of Appeal Judgment on Appeals From High Court Conviction/sentence

Legal Issues

  1. 1 Whether elements of scheduled offence (robbery) were proven at time firearm was discharged
  2. 2 Whether adverse inference under s114(g) EA 1950 should be drawn for non‑calling of Najmi Daniel
  3. 3 Whether evidence recorded under s27 EA 1950 and related police report was admissible or relied on

Ratio Decidendi

The Court held the firearm was discharged while the robbery was being committed (the events form a single transaction) and the prosecution proved identity and intent by witness identification and ballistic/serviceability evidence; non‑calling of Najmi did not justify s114(g) adverse inference because ownership was not material and the prosecution offered the witness; statements in police reports under s27 were not relied on as substantive evidence but the accused's conduct in pointing out the firearm was admissible (s8/s27). Therefore conviction and death sentence for the 1st Appellant was upheld while the 2nd Appellant was acquitted on appeal.

Court Disposition

1st Appellant's appeal dismissed; conviction and death sentence affirmed. 2nd Appellant's appeal allowed; acquitted and discharged. 3rd Accused previously acquitted at close of prosecution case.

Orders

  • 1st Appellant's appeal dismissed and High Court conviction and death sentence under s3 FIPA 1971 affirmed
  • 2nd Appellant's appeal allowed; 2nd Appellant acquitted and discharged