Kamaruzaman bin Hashim

Kamaruzaman bin Hashim

Appeal allowed and convictions set aside because the successor Sessions judge materially misdirected himself by merely adopting and reading the predecessor's draft reasons without independently considering whether the prosecution had established a prima facie case under s173(f) CPC; that misdirection was substantive and not curable under s422 CPC. Independently, prosecution failed to call or offer material witness Muhammad Mustaqim, warranting an adverse inference under s114 Evidence Act and undermining the prosecution's case; accordingly no sustainable prima facie case existed and appellants must be acquitted. Cross-appeal on sentence dismissed.

Citation
KA-42S-4-12/2021 (Mahkamah Tinggi)
Parties
Appellant (perayu): Pendakwa Raya; Respondent 1: Kamaruzaman bin Hashim; Respondent 2: Mohamad Fadzil Voon bin Fandi Voon; Respondent 3: Saiful Azhar bin Ismail; Respondent 4: Muhamad Izrul bin Ismail
Court
High Court
Jurisdiction
Malaysia
Judgment Date
12 November 2024
Case Number
KA-42S-4-12/2021 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal (appeal Against Conviction and Sentence) / High Court Appellate Judgment on Criminal Appeal
Outcome
Appeal allowed in part: convictions and sentences of all appellants set aside and appellants acquitted and discharged; prosecution cross-appeal against sentence dismissed.
Legal Topics
Prima Facie Standard, Misdirection, Non Speaking Judgment, Adverse Inference (s114 Evidence Act), Joint Intention (s34 Penal Code), Section 261 CPC Succession of Magistrate, Section 422 CPC Curative Power, Sentence Proportionality
Source Language
Malay/English
Criminal Law Customs Law Evidence Law Criminal Procedure Prima Facie Standard Misdirection Non Speaking Judgment Adverse Inference (s114 Evidence Act) +4 more

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Parties

Pendakwa Raya

Appellant (perayu)

Kamaruzaman bin Hashim

Respondent 1

Mohamad Fadzil Voon bin Fandi Voon

Respondent 2

Saiful Azhar bin Ismail

Respondent 3

Muhamad Izrul bin Ismail

Respondent 4

Procedural Posture

Criminal Appeal (appeal Against Conviction and Sentence) / High Court Appellate Judgment on Criminal Appeal

Legal Issues

  1. 1 Whether successor judge complied with s261 CPC and made independent consideration under s173(f) CPC before ordering accused to plead
  2. 2 Whether the written reasons were a non-speaking judgment and reliance on predecessor's draft was impermissible
  3. 3 Whether prosecution proved a prima facie case including proof of receipt of RM22,000 cash and RM3,000 online transfer

Ratio Decidendi

Appeal allowed and convictions set aside because the successor Sessions judge materially misdirected himself by merely adopting and reading the predecessor's draft reasons without independently considering whether the prosecution had established a prima facie case under s173(f) CPC; that misdirection was substantive and not curable under s422 CPC. Independently, prosecution failed to call or offer material witness Muhammad Mustaqim, warranting an adverse inference under s114 Evidence Act and undermining the prosecution's case; accordingly no sustainable prima facie case existed and appellants must be acquitted. Cross-appeal on sentence dismissed.

Court Disposition

Appeal allowed in part: convictions and sentences of all appellants set aside and appellants acquitted and discharged; prosecution cross-appeal against sentence dismissed.

Orders

  • Quash convictions and sentences imposed by Sessions Court on all four appellants
  • Acquit and discharge all four appellants of all charges