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CASE OF THE WEEK

CRIMINAL LAW: Penal Code - Section 414 - Concealment of stolen property - Conviction and sentence - Appeal against - Whether particulars as to time of offence proved - Typo errors in amended charge - Whether curable under s. 422 Criminal Procedure Code - Whether there was material contradiction between witnesses - Whether an accomplice a competent witness - Evidence Act 1950, s. 133 - Whether ownership of property returned to insurance company - Whether term of imprisonment reduced and fine enhanced

CRIMINAL PROCEDURE: Accomplice - Witness - Conviction based on uncorroborated testimony of accomplice - Whether accomplice a competent witness against an accused person - Whether accomplice implicated accused - Whether conviction illegal - Evidence Act 1950, s. 133


LUKMAN ZAINUDDIN v. PP
HIGH COURT MALAYA, SHAH ALAM
NURCHAYA ARSHAD J
[CRIMINAL APPEAL: 42SA-260-2010]
18 SEPTEMBER 2012

The appellant was at the material time a legal officer attached to the Attorney General's Chambers. He was charged with an offence under s. 414 of the Penal Code and with an alternative charge under s. 109 of the same. Briefly, the facts were that in February 2003, SP8 had bought a BMW 3 series bearing registration number ADT 6677, insured to Kurnia Insurance (Malaysia) Berhad. On 12 August 2003, SP8, accompanied by the appellant, reported that the said car was stolen. Subsequently, SP8 filed a claim with the insurance company and was compensated RM62,000. On 24 May 2006, SP5 was approached by the appellant who instructed him to sell a BMW at RM7,000 to a third party in Thailand. SP5 drove the car and was later detained at the Bukit Kayu Hitam Check Point by SP3. SP3 had made a search through KOMPOL (Komputer Polis) and discovered the said car had used a fake vehicle registration number RGN 6769. Further investigations revealed that the car was indeed the missing car. The appellant was later charged and convicted on the principal charge. He was sentenced to 12 months' imprisonment and a fine of RM2,000 in default three months' imprisonment. Thus, the appellant appealed. The grounds raised by the appellant herein were, (i) whether the particulars as to time of offence was proved; (ii) whether there was material contradiction between the evidence of SP5 and SP7; (iii) whether the conviction was safe based upon the evidence of an accomplice ie, SP5; (iv) whether the ownership of the car belonged to SP8 and (v) whether the sentence meted out was proportionate to the offence.

Held (reducing term of imprisonment to eight months; enhancing fine to RM20,000):

(1) The dates stated in the amended charge were bona fide typo errors. After SP5 had testified and showed that an offence had actually taken place on the dates mentioned, the Deputy Public Prosecutor made an oral application to amend the charge. An error of a date specified in the charge is without importance unless it is actually an essential part of the offence (Law Kiat Lang v. PP; Ho Ming Siang v. PP; refd). Hence, the typo error could be cured via s. 422 Criminal Procedure Code. The appellant had not been prejudiced or suffered any injustice. (paras 10-12)

(2) There were two versions between the evidence of SP5 and SP7. According to SP5, the appellant instructed him to sell the BMW. However, SP7 revealed that he had overheard the conversation between SP5 and the appellant and that SP5 had wished to borrow the BMW. To determine whether there were real contradictions among witnesses, the totality of the evidence had to be examined. The court had carefully scrutinised SP7's evidence it its entirety and found that SP7's evidence could not have benefited the appellant. During re-examination, SP7 confirmed that he did not hear any conversation between SP5 and the appellant, thus his evidence could not help the appellant. (paras 15 & 16)

(3) Section 133 of the Evidence Act 1950 provides that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon uncorroborated testimony of an accomplice. Further, in this case, the trial judge had not based her decision solely on SP5's evidence. The trial judge had pointed out that there were other evidence ie, direct and circumstantial, to link the appellant to the offence charge ie, the correspondence between SP5 and the appellant via SMS. The court had no reason to doubt the finding of the trial judge. There was no trace of evidence to even suggest that SP5 had the motive to lie or to implicate the appellant. (paras 18, 19 & 22)

(4) The trial judge's finding that Kurnia Insurance now has the ownership of the BMW was consistent with the testimony of SP4 (the agent from the insurance company) and also SP9 (the financier's officer). After Kurnia Insurance made the payment of RM62,000 to Maybank, the ownership returned to the insurance company. (para 26)

(5) The appellant was a legal officer equipped with legal knowledge and skills. He is expected to uphold the law and not to abuse his position. Therefore, the court reduced the term of imprisonment to eight months and enhanced the fine to RM20,000. (para 28)

Case(s) referred to:

Ho Ming Siang v. PP [1966] 1 LNS 68 FC (refd)

Law Kiat Lang v. PP [1965] 1 LNS 81 FC (refd)

R v. Severo Dossi [1918] 13 Cr App R 158 (refd)

Rattan Singh v. PP [1970] 1 LNS 132 HC (refd)

Legislation referred to:

Criminal Procedure Code, ss. 162, 422

Evidence Act 1950, s. 133

Penal Code, ss. 109, 414

Counsel:

For the appellant - Md Yunos Shariff (Nor Dalila Mohd Zambri with him); M/s Arman-Yunos

For the prosecution - Ishak Yusuff (Deepa Nair Thevaharan & Nadia Izhar with him); DPP

Reported by Suhainah Wahiduddin

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