PP v. AHMAD FARIS SABRI & ORS [2010] 1 LNS 1896

PP v. AHMAD FARIS SABRI & ORS
HIGH COURT MALAYA, SHAH ALAM
MOHD YAZID MUSTAFA J
[CRIMINAL TRIAL CASE NO. 45B-87 & 116-2007; 45B-55-2008]
17 AUGUST 2010

IN THE HIGH COURT OF MALAYA IN SHAH ALAM

IN THE STATE OF SELANGOR

[CRIMINAL TRIAL CASE NO. 45B-87 & 116-2007; 45B-55-2008]

BETWEEN

PUBLIC PROSECUTOR

AND

AHMAD FARIS SABRI

MUHAMMAD AZRUL AZRANI M YUSOF

MUHAMMAD IZWAN NOR AZMAN

SALLEHUDIN ACIN

GROUNDS OF JUDGMENT

On 9^th of June 2010, at the end of the prosecution case, I had acquitted and discharged all four children from the charge under Section 149 of the Penal Code that is punishable under Section 302 of the Penal Code. The amended charge against the 4 children is as follows:

"Bahawa kamu bersama-sama beberapa orang yang masih bebas, pada 29 September 2006 jam lebih kurang 6.30 petang di tepi jalan, Taman Rakan, Bandar Baru Sungai Long, Kajang, di dalam daerah Hulu Langat, di dalam negeri Selangor Darul Ehsan, sebagai ahli suatu perhimpunan yang menyalahi undang-undang, pada menjalankan tujuan bersama perhimpunan iaitu membunuh Chong Gui Rong (KPT: 900819-14-5659) dan semasa kamu semua adalah ahli perhimpunan tersebut, satu atau lebih daripada kamu telah membunuh Chong Gui Rong (KPT: 900819-14-5659), sebagaimana diketahui oleh kamu semua mungkin dilakukan pada melaksanakan tujuan bersama perhimpunan itu dilakukan dan oleh yang demikian kamu telah melakukan satu kesalahan di bawah seksyen 149 Kanun Keseksaan dan boleh dihukum di bawah seksyen 302 Kanun Keseksaan."

The trial of the case against the 4 children started on 10^th of February 2009 before the former presiding judge. On 1^st of February 2010, the case was transferred to be heard before this court after the elevation of the former presiding judge to the Court of Appeal. Henceforth, I proceeded to conduct the continued hearing of the case with the prosecution witness SP11.

Facts as established through the prosecution evidence

The prosecution has called 25 witnesses to testify. The facts as established through the prosecution witnesses are as follows.

Cause of death of the victim from the testimony of the forensic pathologist

Dr. Aung Thu Ya @ Mohamed Swarhib, SP3 testified that the external examination of the victim showed that the victim had sustained several abrasions and bruises on his face and head region, hands, arms and elbows and the chest region. The post mortem report (exhibit P7) states that the injuries that the victim had sustained on the head were fatal in nature and the victim's cause of death was blunt injuries to the head. SP3 testified that the blunt injuries inflicted on the victim's head caused internal bleeding in the skull. SP3 explained that the injuries to the head could be caused by any blunt object such as helmets and wooden sticks. The skull bone however did not sustain any fracture. SP3 continued by stating that although the skull bone was not fractured, the injuries caused by a blunt object could result in brain movement and rupturing of the blood vessel. The injuries sustained by the victim were sufficient in the ordinary course of nature to result in death.

During cross examination, SP3 testified that it is not conclusive whether the three pieces of wood marked as exhibits P16(A), P17(A) and P18(A) were the weapons used in the present case. However, SP3 disagreed with the suggestion of the defence counsel that the murder weapon was other than a piece of wood. SP3 also disagreed with the suggestion of the defence counsel that the haemorrhage in the victim's skull had occurred one or two days prior to the day the post mortem was conducted on 30.9.2006 because the injury was recent. SP3 explained that such is the conclusion because the bruises on the victim were still red on 30.9.2006. If the bleeding was the result of an older injury, the bruises on the victim would not be that red. The red coloration of the bruises was consistent with an injury inflicted between 12 to 24 hours prior to the victim's death. SP3 could not comment as to whether urgent medical attention could have saved the victim from death or that the injury sustained by the victim could have been inflicted prior to 6.30 pm on 29.9.2006. In re-examination, SP3 testified that there were no wood particles discovered on the victim's head that could be visible to the naked eye. SP3 explained that the victim's injuries could be caused by any blunt object such as the wood plank found at the scene of the crime. The victim's injuries were also not resulted from a fall.

The testimony of the victim's friends ie, SP8, SP9 and SP10

Phang Wai Kiat, SP8 testified that one day prior on 28.9.2006, there was a fight involving 2 gangs viz a Malay gang and a Chinese gang whereby both gangs were made up of students. The cause of the fight was regarding some fireworks. On the day of the murder on 29.9.2006, SP8 was walking to a stall area at Taman Rakan, Sungai Long with his friend, Loo Wai Num (SP9) at about 4.45 in the evening. As they were approaching the stall area, they were suddenly surrounded by a group of about 9 or 10 Malay youths. One of the boys had accused SP8 to have been involved in the fight on the previous day. Before SP8 could negate the accusation, he was punched on the face by the 1^st child. Then SP8 was almost run from behind over by another Malay man riding on a motorcycle. SP8 managed to avoid being run over by the motorcycle. It was then that his friend by the name of Zakaria appeared on scene. SP8 asked Zakaria for assistance and the latter spoke to the Malay group. Thereafter, Zakaria told SP8 and SP9 to leave the area. SP8 and his friend entered a restaurant wherein SP8 then made a telephone call to the victim to come over and pick up SP8. The victim thereafter arrived at the restaurant and asked SP8 about the prior incident. The victim had then left the restaurant with SP9 on his motorbike to look for the earlier Malay group to explain the non-involvement of SP8, SP9 and the victim in the fight on 28.9.2006. SP8 attempted to stop the victim but it was in vain. SP8 then contacted the victim on his cell phone but the latter informed that he was surrounded by a group of Malay youths. SP8 had made another call to another friend by the name of Andy who informed the former to go over to a house in front of the restaurant. SP8 did so and it was then that he saw the victim and SP9 being attacked by a group of Malays nearby a market area. SP8 had run over to help his friends. Before reaching his friends, he had seen the victim fall to the ground, get up again and run away to escape the group of Malays. SP8 had turned back to wait at the restaurant. SP9 came over to the restaurant and told SP8 that the victim had escaped inside a motorcycle repair shop beside the market. SP8 and SP9 did not attempt to find the victim. SP8 testified that he could not clearly see the persons in the Malay group and neither could he identify the Malay person that had hit the victim. SP8 did see one person in the group holding what looked like a piece of wood or iron rod whilst hitting the victim with it. SP8 had seen the victim run towards the motorcycle repair shop but did not see what had happened to the victim once the later was inside the shop. The distance between the motorcycle repair shop and the restaurant was about 12 shops away. SP8 and SP9 had waited for the arrival of the police. Once the police had arrived at the scene of crime, SP8 walked over to where the victim was lying on the ground at the roadside. SP8 testified that there was a group of Malay men at the scene of crime and one of the persons had tried to hit him with either a wooden or iron stick. SP8 testified that the person that had tried to assault him was the 2^nd child.

In cross examination, SP8 agreed that he could not positively identify the person that had punched him in the face on 29.9.2006 because that particular incident occurred on the spur of the moment. This is inconsistent with his testimony in examination in chief wherein he had identified the 1^st child as his attacker. SP8 did not go back home because his house was far from the restaurant. SP8 agreed that the group of Malay youths did not follow him into the restaurant after he was punched. SP8 agreed that it was another 15 minutes before the victim arrived at the restaurant after being called by the SP8 on the former's cell phone. SP8 explained that he had asked SP9 to follow the victim because he believed that the victim had intended to look for the Malay group that had attacked SP8. SP8 had called the victim to come to the restaurant in order to send the latter back home, SP8 had waited for 5 minutes before the victim arrived at the restaurant. Within the 5 minutes, nothing had transpired and nobody had looked for SP8. The victim was running from the T-junction and not from inside the market when he had fallen to the ground. The motorcycle repair shop that the victim had escaped into was still opened but SP8 did not see whether there was anybody inside. SP8 agreed that at the time, there were many people at the area because there was a Ramadhan bazaar seeing as the murder occurred during the Muslim month of Ramadhan. The scene of the murder was besides the market area nearby the T-junction. SP8 agreed that he had seen the person that had punched him earlier at the scene of murder. However, in re-examination, SP8 reversed his testimony by stating that he had not seen the person that had punched him at the scene of murder. SP8 had agreed with the suggestion during cross examination because of his own assumption seeing as the place was crowded with many people shopping for breaking fast at the Ramadhan bazaar.

Loo Wai Num, SP9 testified that on 29.9.2006 at about 4.45 pm he was walking with SP8 heading towards the barber shop and to have a meal at 'Meng Heng' restaurant in Taman Rakan. On the way to the restaurant they were accosted by 1 Malay boy. The Malay boy had punched SP8's nose. Then SP8 was nearly run over by an approaching motorcycle. Thereafter, SP9 and SP8 continued walking to the restaurant. However, before reaching the restaurant, SP9 and SP8 were chased by a group of Malay youths. The Malay boy that had earlier punched SPS's nose was in the group that was chasing them. SP9 and SP8 ran towards the restaurant. SP9 and SP8 then had their meal at the restaurant. It was at the restaurant that SP8 made a phone call to the victim but SP9 did not overhear the telephone conversation. The victim arrived at the restaurant on his motorcycle. The victim joined SP9 and SP8 for a meal. SP8 told the victim about being assaulted by the Malay boy. The victim then decided to speak to the group of Malays. The victim asked SP9 to accompany him to look for the group of Malays. The victim and SP9 then proceeded to look for the group of Malays on the latter's motorcycle. Upon reaching a junction, the victim decided to make a u-turn back to the restaurant but they were stopped by a Malay person. The victim stopped his motorcycle and his motorcycle keys were taken by another Malay person. The victim was asked by the Malay person to leave his motorcycle and walked across the street to where a group of Malays were waiting. The victim and SP9 complied. The group of Malays was made up of young men in their twenties. Then a Malay man in his thirties asked the group of Malay youths whether the victim was involved in the fight on 28.9.2006. The answer was in the affirmative. The group of Malay youths then started to assault the victim and SP9 using their fists. SP9 saw one of the Malay youths hit the victim using an unidentified object. SP9 saw the victim being punched in the face and hit on the torso with an unidentified object and a helmet. The victim and SP9 were assaulted on the roadside besides a t-junction. SP9 managed to escape and ran away. The victim had also run towards a motorcycle repair shop. The group of Malay youths had chased after the victim and continued assaulting him in front of the motorcycle repair shop. SP9 testified that he had identified the 1^st child in 3 identification parades as the person that had punched the victim's nose and face on 29.9.2006. SP9 did not identify the other 2 Malay youths that had assaulted the victim. However, later in his testimony SP9 stated that he could not be certain whether there were other Malays that had assaulted the victim apart from the 1^st child.

In cross examination, SP9 stated that he was not acquainted with the 1^st child prior to the fight on 29.9.2006. SP8 had attempted to stop the victim from looking for the group of Malays that had attacked SP8. SP9 was certain that the victim merely wanted to take a ride on his motorcycle and not for the sole purpose of looking for the group of Malays. SP9 agreed that the situation was chaotic. At the time that the Malay man in his thirties had asked the group of Malays about the victim's involvement in the fight on 28.9.2006, SP9 did not see whether any of the Malay youths were holding any weapons. SP9 agreed that after he escaped the angry mob, he did not know what had happened to the victim.

Soh Chi Cherng, SP10 testified that he was working part time in an advertising shop in Taman Rakan on 29.9.2006. At about 5.45 pm the victim and SP9 were riding on the former's motorcycle towards the advertising shop. SP10 had spoken to both the victim and SP9 before they both left. At about 6 pm, SP10 made a phone call to the victim and was told by the latter that he was surrounded near a surau in Taman Rakan by a group of Malay youths and that his motorcycle keys were taken from him. SP10 then left his workplace and walked to the side of the said surau. On his way to the surau, SP10 had met up with SP8 who informed him as to what had transpired and both of them then proceeded to the surau. They then met up with SP9 who requested for assistance from SP10 and SP8 to help the victim. SP10 had seen the victim being surrounded and assaulted by a group of Malay youths made up of about 8-9 youths in the twenties. The victim had run towards SP10 and SP8. SP10 had seen the victim being hit with fists and one of the youths had attacked the victim with a piece of wood. SP10 cannot identify the victim's attackers. The victim had run towards a motorcycle repair shop. SP10 had thrown a piece of iron rod towards the angry youths. The mob then turned towards SP10 and started to hit him. At the time SP10 had thrown the iron rod towards the angry mob, he did not know what had happened to the victim. SP10 had ran away and the angry mob turned back towards the victim who had run towards the direction of the surau. SP10 had followed the angry mob and saw that the victim had changed his direction towards and entered the motorcycle repair shop. SP10 was about 6 shops away from the motorcycle repair shop. One of the Malay youths had pulled the victim out of the repair shop and hit him. SP10 had then gone into a coffee shop. SP10 did not see what had happened after he went into the coffee shop.

SP10 had attended 3 identification parades. In the first identification parade, SP10 had identified the 1^st child as the youth that had held a piece of wooden plank and assaulted the victim with said wooden plank and his fists. During the second identification parade, SP10 had identified the 2^nd child as the youth that had pulled the victim out of the motorcycle repair shop and assaulted the victim. In his cross examination, SP10 explained that the victim had fallen to the ground on the roadside after being assaulted by the angry mob of Malay youths. The situation was chaotic due to the chase of the victim by the angry mob and the act of assaulting the victim. SP10 was not certain as to the number of persons that had assaulted the victim. At the time, SP10 admitted that was afraid but he did not attempt to hide himself. SP10 disagreed with the defence counsel's suggestion that the 1^st child was present at the scene of crime because he was selling drinks at his stall at the Ramadhan bazaar. SP10 agreed that at the time he had thrown the iron rod towards the angry mob and when the victim was pulled out of the repair shop, the victim was still able to run away. SP10 also agreed that the last that he had seen the victim was when the latter was running towards the surau. Thereafter, SP10 did not know what had happened to the victim because he was waiting inside a coffee shop. SP10 agreed that a lot of what had happened on the fateful day is forgotten by him because the incident had happened a long time ago. In re-examination, SP10 explained that his discussion with SP8 was only regarding the position of the surau and nothing else.

The testimony of the public witnesses SP14 and SP15

SP14 (Mohd Azizan bin Rosli) testified that he was working as a sales assistant at a supermarket in Taman Rakan on 29.9.2006. At about 6.15 pm he was told by a colleague about the fight in front of the motorcycle repair shop. SP14 went outside and saw the fight whereby the victim was being assaulted by a group of Malay youths. At the time, SP14 was standing in front of the supermarket and it as about 50 metres away from the fight. SP14 identified the 1^st child and the 4^th child as being part of the Malay youths who were attacking the victim. The 1^st child and the 4^th child were seen to be shoving and punching the victim. The 1^st and 4^th children could be identified because SP14 testified that they were his friends whom he had known since primary 2. At about 6.45 pm SP14 was walking towards the Ramadhan bazaar towards his home for fast breaking. Upon reaching the Ramadhan bazaar, he had seen that the earlier fight had not ended. The victim's friends had come to the latter's assistance. The 1^st and 4^th children were still at the scene of the fighting and they were then fighting with the victim's friends. The victim was on the left side of the road and he had vomited blood before lying prone on the roadside. The 1^st and 4^th children were assaulting the victim's friends with wooden planks. The victim's friends then ran towards his car. About 5-6 minutes thereafter the police arrived on the scene to disperse the fighting.

In cross examination, SP14 explained that the fight which he had observed consisted of about 20 people but he only knew the 1^st and 4^th children and the victim. The situation was extremely chaotic and the fighting had involved fist fights between the victim and his assailants. SP14 agreed that he is unsure what the 1^st child was doing during the fighting. SP14 agreed that he is also unsure as to what the 4^th child was doing because the area was chaotic due to the fighting and filled with people shopping at the Ramadhan bazaar. There were other unknown persons who were attacking and fighting with the victim. When the victim was near the motorcycle repair shop, SP14 had noticed that the victim had sustained some light injury but SP14 did not notice whether there were any weapons used to attack the victim. The fighting was at 2 distinct places which were about 60 metres apart. The victim's friends were about 5 persons. SP14 admitted knowing that the 1^st child was helping out his friend by the name of 'Hakimi' in selling drinks at a stall at the Ramadhan bazaar. SP14 admitted that when the police arrived at the scene of the crime, the 1^st child was still within the area. SP14 knew that the 1^st child was assaulted one day prior to the victim's death. On the day of the victim's death, SP14 had noticed that the 1^st child still had a bandage on his forehead. SP14 agreed that the 4^th child was also selling drinks at the Ramadhan bazaar. The distance between the scene of the fighting and the Ramadhan bazaar was about 10 metres. SP14 agreed that when he reached the scene of the fighting, the victim was already lying prone on the roadside and there were several Malay youths still fighting with the victim's friends. In re-examination, SP14 reiterated that the 1^st and 4^th children were in a fist fight with the victim. The victim was also attacking the 1^st and 4^th children.

SP15 (Yap Chin Meng) testified that on 29.9.2006, he was working in a motorcycle repair shop. Around 6 pm thereafter, he witnessed the victim running into the repair shop while shouting for help. There was a group of about 10 Malay youths running after the victim. Some of the youths entered the shop and dragged the victim outside. SP15 attempted to stop the youths from dragging the victim but was told to back off. SP15 went out of the sop and saw the youths attacking the victim using fists and feet. The victim did not fight back. SP15 identified the 4 children as being in the group that had attacked the victim. The 3^rd child was identified as the youth who had dragged the victim out of the repair shop. The 2^nd child was the youth who had told SP15 to back off and mind his own business. The victim was hit by all the children. After about 5 minutes, the victim managed to escape and the youths had chased after him. After SP15 had finished his work, he had gone over to where the victim was lying on the roadside. The 4 children were still in the area trying to run away. The victim had gotten up and taken 2-3 steps before falling back to the ground. SP15 saw the victim breathing heavily.

SP15 had attended 4 identification parades after the incident. The 1^st time was to record his statement. The 2^nd to the 4^th visits to the police station were for identification purposes. SP15 had identified all 4 children as the victim's assailants during the identification parade. In cross examination, SP15 agreed that he did not try to help the victim because the situation was not that serious. Only one youth had entered the repair shop. SP15 did not make any attempts to contact the police or asked for assistance from the people nearby his shop because he was still busy at work. SP15 reiterated that he had only seen the victim being attacked by the youths' fists and feet. SP15 did not observe anybody helping the victim. SP15 could recognize the 1^st child because the latter had sent his motorcycle for repair works at the former's shop. SP15 agreed that there were several unknown assailants among the youths who had attacked the victim.

Police witnesses SP17, SP18, SP21, SP24 - identification parade of the public witnesses on the 4 children

On 6.10.2006 at about 4.45 pm, SP21 had conducted an identification parade for a suspect by the name of 'Reyono bin Samijo' and the 1^st child. The line-up consisted of 15 persons who were similar to the 1^st child in terms of age and physical attributes. The identification parade was attended by 4 witnesses who were SP9, SP10, SP15 and SP8. The 4 witnesses had identified the 1^st child. The identification report is marked as exhibit P38.

On 15.4.2007 at about 12 in the afternoon, SP24 had conducted an identification parade on the 2^nd child. There were 10 persons in the identification line-up who were similar to the 2^nd child in terms of race, height and physical attributes. All persons in the identification line-up were dressed in civilian clothing. SP9 was the first witness and he did not identify the 2^nd child (identification report exhibit P45). The second witness was Asri bin Sudahnan who did not identify the 2^nd child (report marked as exhibit P46). The third witness was SP8 who identified the 2^nd child and told SP24 that he had seen the 2^nd child holding a wooden plank and had run away when the police arrived at the scene of incident (report marked as exhibit P47). SP24 had conducted another identification parade on 17.4.2007 for the 2^nd child whereby 5 witnesses were called. The 2^nd child was placed in the identification line-up consisting of 10 persons similar to his race, shape, skin tone and height. The first witness was SP16 who had identified the 2^nd child as the person who had attacked the victim. The second witness was Chui Jun Seng who stated that the person who had attacked the victim was not in the line-up. SP15 was the third witness who stated that the 2^nd child had pulled the victim. Then Mohd Faiz bin Mustafa was called but he could not identify the 2^nd child. The last witness was SP10 who stated that he had seen the 2^nd child holding a wooden plank on 29.9.2006 (the identification report is marked as exhibit P48).

At about 12 in the afternoon on 13.2.2008, SP17 had conducted an identification parade for the 3^rd and 4^th children. The identification parade consisted of 15 youths close to the children's age, race and physical attributes. The identification parade was attended by 4 witnesses viz SP16, SP9, SP10 and SP8. The 4 witnesses were explained about the reason for their attendance at the police station and the procedure for the said identification exercise. The children were dressed in civilian clothing as with the other persons lined up in the identification parade. SP16 was the first witness brought before the identification line-up but SP16 did not identify the 3^rd and 4^th children. Next was SP9 who had identified the 4^th child. SP10 was called up next and he did not identify any of the two children. Lastly was SP8 who similarly did not identify the two children as being the persons who had attacked the victim. In cross examination, SP17 clarified that SP9 had in fact identified the 3^rd child during the identification parade. SP9 had told SP17 that the former had seen the 3^rd child and his friends attacking the victim with their hands.

Five days thereafter on 18.2.2008 SP18 had carried out another identification parade for the 3^rd and 4^th children. Similar to the earlier identification parade, there were 15 persons in the identification line-up who were chosen because of their similarity to the two children in age, race, height and physical attributes. The children were dressed in civilian clothing as with the others in the line-up. The children then were given a choice as to the position to be in the line-up. The first witness was SP15 who had identified both children. The second witness was Mohd Faiz bin Mustafa who had also identified the children. In cross examination, SP18 agreed that the identification report marked as exhibit P32 contains a statement of SP15 that indicates that the latter had only seen the 3^rd child at the scene of crime but did not see whether the 3^rd child had also attacked the victim. SP18 agreed that the identification report marked as exhibit P33 contains a statement from Mohd Faiz bin Mustafa that he had only seen the 3^rd child chase after the victim with his friends and attacked the victim using their hands. SP18 confirmed that neither exhibit P32 nor exhibit P33 states that the 4^th child had attacked the victim using a wooden plank.

Findings of the High Court

Has the prosecution proven the actus reus under Section 300 of the Penal Code on the 4 children?

In my judgment, the answer to this question is in the negative. I find that the prosecution eye-witnesses have failed to prima facie prove that any of the 4 children were involved in the fight or were part of the group of unidentified Malay youths that had attacked and caused the victim's death on 29.9.2006. The circumstances leading up to the death of the victim was the existence of a fight involving a group of unidentified Malay youths and the victim with his friends. The incident occurred in a crowded area within the vicinity of a Ramadhan bazaar. The incident involving the fight was extremely chaotic. The victim had initiated to look for the unidentified group of Malay youths who had allegedly attacked SP8 and such action culminated in the fight that led to the latter's death.

These facts are testified to by SP8 and SP9 who were the victim's friends. Both SP8 and SP9 could not positively identify the person or persons who had caused the fatal blow to the victim. The last time that SP8 had seen the victim, the latter was still upright and able to run away from the angry mob of Malay youths into a motorcycle repair shop. Thereafter, SP8 had escaped to hide inside a restaurant. This court is according a strict assessment of SP8's testimony in light of the fact that he an interested witness. In State of Haryana v. Ram Singhhand and another appeal [2002] 1 LRI 324, the Supreme Court of India held at paragraph 14 that:-

"Admittedly all the supposed eye-witnesses are relations of the deceased. As such they fall within a category of interested witnesses. It is not that the evidence ought to be discredited by reason of the witness being simply an interested witness but in that event the court will be rather strict in its scrutiny as to the acceptability of such an evidence."

I find that SP8's testimony as to the reason for being within Taman Rakan area and the reason for calling the victim to meet him at the restaurant as inherently improbable. SP8 had testified that he had gone to Taman Rakan with SP9 to have a meal at a restaurant and he was accosted by a group of unidentified Malay youths while on his way to the said restaurant. SP8 testified that after being allegedly punched, he and SP9 had proceeded to the restaurant where they had a meal. SP8 testified that about 15 minutes had passed after the alleged attack on him and that the group of unidentified Malay youths did not follow him into the restaurant. In fact, after the victim arrived at the restaurant, the victim had joined SP8 and SP9 and had a meal together. SP8 had then made a phone call to the victim allegedly to ask the latter to send him back home since the former's house was far from Taman Rakan. This is an improbable explanation. In Muniandy & Ors. v. PP [1966] 1 MLJ 257, the Federal Court held at page 258 that - "The inherent probability or improbability of a fact in issue must be the prime consideration". If SP8 had arrived at the restaurant in Taman Rakan on foot, he would not face a problem in walking back to his home no matter the distance. Therefore, the reason for SP8 in calling the victim to meet with him in Taman Rakan was for them to look for the unidentified group of Malay youths in order to have a fight.

I am making a similar finding and assessment of SP9's testimony. SP9 who had gone with the victim to look for the group of Malay youths was also involved in the fight. SP9 testified and confirmed in cross examination that the situation was extremely chaotic and he could not identify who had attacked him and the victim or even whether any of the persons had used a weapon during the fight. SP9 had also left the victim and escaped to hide in the restaurant with SP8 until the arrival of the police. As such, neither SP8 nor SP9 were witnesses as to the actual person or persons who had attacked the victim.

Another witness to the fight was SP10 who was also acquainted with the victim. SP10 also did not see the actual person or persons who had attacked the victim. SP10 had identified the 1^st and 2^nd child as being part of the group of Malay youths that had attacked the victim during his identification parade. I find that SP10 is able to identify the 1^st and 2^nd children in his identification parade because SP10 was working in an advertising shop in Taman Rakan where the 1^st and 2^nd children were staying. The court is mindful to reject the testimony of SP10 because he was standing at a far distance from the scene where the victim was being attacked, to be exact about 6 shops away from the motorcycle repair shop. In cross examination, SP10 admitted that he had forgotten many of the events on the fateful day and the last he had seen the victim the latter was running towards the surau. SP10 had gone into a coffee shop thereafter and did not see what had happened further to the victim. These facts taken with the fact that SP10, as the victim's friend is treated as an interested witness renders this court's inability to accept SPlO's testimony as credible.

It is pertinent to note before proceeding further that none of the 4 children were arrested on 29 September 2006 ie, the day the victim was killed. The 4 children had also cooperated with the police at the time of their individual arrest. SP14 had testified and confirmed that the 1^st and 4^th children were present at the scene of the incident because they were assisting in selling drinks at the Ramadhan bazaar. SP14 was acquainted with both the 1^st and 4^th child. SP14 had confirmed that he had seen the 1^st child sporting a bandage on his forehead on the day. It is pertinent to note that initially, SP14 was also a suspect in the murder of the victim but he was eventually released by the police and turned prosecution witness. SP14 is similarly an interested witness and the principle laid down in State of Haryana v. Ram Singhhand applies.

The final prosecution eye-witness is SP15. I am unable to accept SP15's testimony in positively placing the 4 children as being part of the Malay youths that had attacked the victim. SP15's identification of the 4 children is attributed to the admitted fact that the 4 children had regularly been customers in his motorcycle repair shop. I am treating SP15's testimony with caution because he had testified that the victim was chased by a group of 10 youths but SP15 could only identify the 4 children who were his regular customers. In cross examination, SP15 admitted that he did not assist the victim and after the victim was dragged out of his shop, he had gone back to work. SP15 admitted that the group of Malay youths had consisted of other unidentified persons.

I find that the victim's cause of death as established through the forensic pathologist, SP3 and the post mortem report (Exhibit P7) was blunt injuries to the head that could only be caused by a blunt object. The only prosecution eye-witness who had testified seeing the victim being attacked by a youth holding a piece of wood is SP10. SP10's testimony could not carry weight in positively placing any of the 4 children as the person who had attacked the victim with a piece of wood. The reason is that SP10 could not identify the actual person who had held said piece of wood and hit the victim.

Apart from these witnesses, the prosecution has failed to bring forth any independent eye-witnesses to the fight viz a member of the public that was present at the scene of the crime. I find in agreement with the defence counsel's argument that the investigating officer, SP22 had failed to conduct any investigation or record the statement from the public. SP22 had only recorded statements from the interested witnesses who were friends of the victim and SP14 who was initially a suspect. It is vital to the prosecution case to have the testimony of independent eye-witnesses in order to corroborate the oral evidence of the interested witnesses.

The prosecution has failed to prima facie establish against the 4 children the first element under Section 300 of the Penal Codeviz the actus reus to cause injury on the victim that culminated in the latter's death. Therefore, the prosecution has also failed to prima facie establish the second element of mens rea to cause murder against the 4 children. I find that the charge under Section 302 of the Penal Code against the 4 children has not been established prima facie by the prosecution.

Has the prosecution prima facie established the charge under Section 149 of the Penal Code against the 4 children?

In my judgment, the answer to this question is similarly in the negative. Based on the above reasons, the prosecution has failed to prima facie establish that the 4 children were the persons who had caused the death of the victim and that the 4 children were ever part of the group of Malay youths that had attacked the victim on 29.9.2006. Section 149 of the Penal Code is invoked subject to the proof that there was common intention to cause hurt to the victim.

In Robin anak Mawang v. PP [2005] SGHC 222, His Lordship Yong Pung How CJ held at page 387 that - "Once the common object of the unlawful assembly of causing hurt was established, it was sufficient for the prosecution to show that one or more of the members had punched and kicked at Alim, and this member need not necessarily be the appellant. In the present instance, the evidence clearly established that the appellant was part of a group of five persons behaving rowdily, who had a common object to hurt Alim as they all participated in one way or another in the assault, either by punching or kicking Alim. A further point to note was that none of them tried to stop the assault. It was obvious that violence was used and Alim suffered various injuries to his head."

In the present case before this court, the 4 children were not part of the unlawful assembly viz the group of unidentified Malay youths based on the analyses stated in the above passages. There is no common intention to cause the death of the victim that is attributed to the 4 children. I find that the prosecution has failed to prima facie establish the element of unlawful assembly under Section 149 of the Penal Code against the 4 children.

Conclusion

Based on the above reasons, I hereby acquit and discharge the 4 children from the charge of murder under Section 302 of the Penal Code and the charge of unlawful assembly under Section 149 of the Penal Code.

Dated: 17 AUGUST 2010

sgnd

MOHD YAZID MUSTAFA

Hakim

Mahkamah Tinggi Shah Alam Jenayah 4

Selangor Darul Ehsan

For the 1st child - Ariff Azami; M/s Azizul Adzly & Ariff

13-2 Jalan Puteri 4/1, Bandar Puteri, 47100 Puchong

For the 2nd child - Jagdish Kaur; M/s AS Jag & Co

Suite 1, No. 8C, 3rd Floor, Jalan Haji Salleh,

Off Jalan Sentul, Kuala Lumpur.

For the 3rd child - James George; M/s James George & Co

Unit B23-05 Rhythm Avenue

Jalan Persiaran Kewajipan, USJ 19 47620 Subang Jaya

For the 4th child - Salim Bashir; M/s Salim Bashir Ruswira & Co

No. 54A Tingkat 1 Blok 4, World Wide Business Park

Jalan Wushu 13/47, 40675 Shah Alam.

For the public prosecution - Yong Leou Shin; Pejabat Timbalan

Pendakwaraya Selangor

Tingkat 4 Podium Utara, Bangunan SSAAS, 40512 Shah Alam

OPEN YOUR EYES

Salam,

2012 melabuhkan tirainya. 2012 merupakan tahun penamat dunia atau armageddon berdasarkan prophecy puak Mayan. Bagi orang Islam sudah tentu kita dilarang daripada mempercayainya. Sekadar menonton filem epik 2012 tiada salahnya. Begitu juga meminati lagu tema filem Armageddon - I dont wanna miss a thing alunan penyanyi berbibir tebal dari kumpulan Aerosmith.

Awal 2012 juga menyaksikan beberapa peristiwa penting dalam lanskap politik dan kemahkamahan negara. Yang paling menarik adalah tarikh 901 menyaksikan keputusan yang paling mengejut dibuat oleh mahkamah dalam kes DSAI. Lebih mengejutkan daripada kekalahan Kelate kepada Nogori dalam Piala Sumbangsih tempohari. Pembebasan dan perlepasan DSAI (di peringkat ini jangan over excited) mengkezutkan selluurouh pihak yang terlibat samada pengamal undang-undang, penyokong, pemerhati serta penentang. 3 letupan bom buatan sendiri yang masih menjadi misteri siapa perekaciptanya, menyambut keputusan bersejarah itu.

Ramai yang tampil dengan komentar masing-masing mengikut selera dan acuan sendiri. Ada yang mengatakan mahkamah kanggaru sudah menjadi bebas sebebas burung. Ada pula yang berkata ******* (perkataan tidak senonoh) mahkamah kerana membebaskan orang yang terang-terang jahat. Ada pula yang mendabik dada mengatakan sepatutnya kes itu sudah dibakulsampahkan di peringkat pendakwaan lagi.

Keputusan itu sebenarnya membuka mata kepada banyak mesej. Rakyat bukan lagi lembu feedlot yang menerima sahaja apa yang berlaku asalkan periuk nasi mereka tidak terjejas. Keyakinan kita kepada sistem kemahkamahan juga perlu konsisten dan adil. Tidak gentleman mencanangkan mahkamah adil bila keputusannya menggembirakan kita dan berteriak adanya tangan ghaib apabila kita tewas. Ia juga membuka mata bahawa dalam perjuangan itu kita perlu berusaha hingga ke noktah terakhir. Selagi ada peluang dan ruang, belum masanya kita berhentikan usaha dengan alasan bertawakkal.

Sudah tentu pihak pendakwaan yang tewas pusingan ini masih boleh merayu dan berkemungkinan menang di peringkat rayuan. Sistem yang menewaskan mereka di peringkat mahkamah tinggi juga yang membenarkan rayuan dibuat. Terpulanglah kepada pendakwaan selaku guardian of the public interest untuk membuat keputusan yang adil agar persepsi masyarakat bertambah positif dibandingkan keputusan untuk tidak merayu dalam kes Altantuya.

Itulah manisnya berjuang di arena kemahkamahan ini. Penuh drama, banyak yang mengejutkan, banyak juga yang seperti sudah scripted ditempuhi saban hari. Tiada yang membosankan dan stereotype ditempuhi. Apatah lagi dalam bidang jenayah yang mengundang banyak curiga di mata masyarakat terhadap profesion yang membela 'kejahatan' ini.

On the bright side, dalam sesuatu sistem, sesuatu kumpulan, sudah tentu ada 'unsung heronya'. Dalam sistem kemahkamahan ini, mungkin peguam belalah yang termasuk kategori itu. Sering disalahanggap, sering dikecam namun tetap bekerja keras menjayakan sistem, memastikan keadilan tertegak di mahkamah dunia ini sebagai pengimbang kepada pihak yang mendakwa dan yang memutuskan. Mungkin dengan membuka mata atau open your eyes seperti kata Maher Zain dalam lagunya, akan dapat menghargai peranan dan usaha Makalele atau Essien ini. Wassalam.

MASTER CHEF IN COURT

Salam,

Apart from being involved in the legal world and fast paced court action, I have always have an interest in cooking. Well at least I covered the eating part as well as watching cooking shows in tv as my culinary skills is limited to cooking eggs and maggee mee. The current hyped and popular Master Chef shown in astro has escalated my interest to a greater height. I might as well venture into cooking in the event my desire subdued in legal arena, which I hope won't be happening.

A quick glance through news (some are rubbish and pointless cyber fightings) in FB, twitter etc today; one news has caught my attention. A PTD lady officer has been charged in Sepang court for hitting dear hubby with office file! This will easily make front page in any tabloids in our 1Malaysia. Are we running out of genuine, pressing and pure crimes to be brought the court?

I'm trying to digest and visualize what may have transpired. The file must have been so huge and dangerous. Alternatively, the husband might have been seriously injured but hey the charge is merely Section 323 Penal Code. Or there must have been some special and extraordinary circumstances that have propelled the prosecution to prefer such charge. Still, I can't hide my view that there must be other options rather than dumping the case to the court to decide.

My former boss when I was in the prosecution's side has likened a DPP's job similar to a jury in a cooking contest like The Masterchef. The enforcement agencies namely the police, immigration, local councils etc are the cooks. They prepare the dishes, they collect all the recipe and ingredients and they who present the dishes (read: cases) for the jury (read: DPP) to decide for the next course of action. The jury then decides whether the elements are seriously lacking hence warrants a rejection. Or there might be missing elements that need to be touched up. Or the dish is sufficiently good to be given to the court to decide on its merit.

That's why I believe DPPs are the most important filter in our criminal justice system. A sensible, fearless and wise DPP will ensure only strong cases will be preferred with a charge. They will ensure the suspect is charged with the correct charge and not bow to media pressure or public abhorrence to charge with the severest charge, only to easily reducing it when situation is no more pressing. They will also ensure the enforcement agencies up to the mark and perform duties fairly in protecting the public interest.

As for the 'bini pukul laki dengan fail' I dont know whether it really warrants such preferred charge or could it have been solved via other means such as counselling or even a ticking off from the police might suffice. After all, with a court charge it entails a lots of negative things; it erodes dignity, caused financial loss (read: lawyers fee) and unnecessary related family and carrier problems collateral to the charge itself.

I pray that there are many such courageous DPPs around. After all another my former boss always said that DPPs are the top of the barrel, the cream of the cream in legal service. Wassalam.

RINGKASAN HUJAHAN KES BPR (COURT OF APPEAL)

RINGKASAN PENGHUJAHAN PERAYU

Dengan izin Yang Arif,

Adalah menjadi prinsip asas bahawa Mahkamah di peringkat rayuan sewajarnya ‘slow’ dalam mengganggu keputusan berdasarkan penemuan fakta yang dibuat oleh Hakim bicara. Izinkan kami merujuk kes Lim Kheak Teong v PP [1984] 1 CLJ (Rep) 207 dan kes Dr Jayadevan Arayan & Anor v. Sharon Simon & Ors [2000] 3 CLJ 647.

Adalah dihujahkan YA Pesuruhjaya Kehakiman yang bijaksana telah khilaf apabila mengganggu keputusan HMS yang telah menggunakan prinsip yang betul dalam menilai keseluruhan keterangan yang ada. Oleh itu, Mahkamah Rayuan yang Mulia ini mempunyai alasan kukuh dan bermerit untuk mengganggu keputusan yang telah dibuat oleh Yang Arif Pesuruhjaya Kehakiman. Yang Arif Pesuruhjaya Kehakiman tidak sepatutnya ‘interfere’ terhadap keputusan HMS atas alasan-alasan berikut;

1. Yang Arif Pesuruhjaya Kehakiman khilaf apabila meyimpulkan bahawa pembelaan Perayu adalah penafian kosong (bare denial).

1) Pembelaan Perayu bukan berbentuk penafian kosong semata-mata. Bagi pertuduhan pertama, Perayu memberikan penjelasan berkenaan pertemuan dengan SP1 dan apakah sebenarnya berlaku di mana Perayu telah menawarkan kompoun sebanyak RM100 kepada SP1. Rujuk rekod rayuan m/s 142 – 143.

2) Bagi pertuduhan kedua, Perayu tidak sekadar menafikan penerimaan wang, bahkan mengakui ada berjumpa dengan SP1 dan ada memberikan passport SP1 yang ditahan. Cuma Perayu menafikan beliau menerima wang rasuah RM 500 dari SP1, sebaliknya mengatakan SP1 yang telah mencampakkan wang tersebut. Rujuk rekod rayuan m/s 144 - 48.

3) Pembelaan Perayu yang sebegini bukanlah berbentuk ‘bare denial’ tanpa apa-apa keterangan untuk ‘dislodge’. Perayu telah memberikan penjelasan yang munasabah dalam pembelaan beliau. Rujuk kes DA Duncan v PP [1980] 2 MLJ 195.

2. Yang Arif Pesuruhjaya Kehakiman khilaf apabila menyimpulkan bahawa pembelaan perayu adalah berbentuk fikir semula (afterthought).

1) Asas kepada pembelaan Perayu sudahpun diletakkan kepada SP1 iaitu bahawa wang rasuah dicampakkan oleh SP1 dan Perayu tidak memegang wang tersebut. Tiada keperluan untuk Perayu memasukkan lebih daripada asas pembelaan yang hanya bertujuan mengelakkan elemen ‘surprise’ berlaku. Rujuk kes Alcontara a/l Ambross Anthony v PP [1996] 1 CLJ 705.

2) Asas pembelaan juga sudah wujud dalam keterangan dokumentari pihak pendakwaan sendiri iaitu di dalam senarai wang bertanda (P2) dan catitan pada P2 (D15). Ini menunjukkan Perayu telah mengemukakan pembelaan beliau ‘at the earliest opportunity’ iaitu semasa ditangkap lagi. Catitan dalam buku harian (P8) juga menyokong pembelaan Perayu. Rujuk rekod rayuan m/s 147, 182 dan 188.

3) Tidak juga menjadi keperluan untuk Perayu meletakkan versi pembelaan kepada setiap saksi pendakwaan. Rujuk kes Wong Swee Chin v PP [1981] 1 MLJ 212.

4) Fakta-fakta yang dikatakan merupakan keterangan ‘afterthought’ juga adalah merupakan perkara yang detail dan merupakan ‘narration’ cerita pembelaan dan bukannya perkara yang ‘crucial’. Rujuk rekod rayuan m/s 38.

5) Versi pembelaan juga telah dimasukkan seawal mungkin melalui SP8 dan SP9. Rujuk rekod rayuan m/s 131 dan 135.

3. Yang Arif Pesuruhjaya Kehakiman khilaf apabila memberikan pertimbangan berlebihan mengenai ‘fakta yang mencurigakan’ berkaitan pengadu.

1) Keterangan mengenai ‘fakta yang mencurigakan’ berkaitan Perayu telah diperjelaskan satu persatu oleh Perayu dalam pembelaan beliau. Tiada apa-apa ‘fakta mencurigakan’ yang tidak dijelaskan oleh perayu dalam pembelaan beliau. Penjelasan Perayu ini adalah munasabah dan telah dinilai satu-persatu oleh HMS. Rujuk rekod rayuan m/s 74 – 76.

2) Sebaliknya, Yang Arif Pesuruhjaya Kehakiman gagal memberi pertimbangan kepada fakta yang memihak kepada Perayu yang timbul semasa kes pendakwaan lagi yang tidak dipertikaikan oleh pendakwaan.

3) YA Pesuruhjaya Kehakiman telah gagal menganalisa secara adil keseluruhan fakta yang wujud dalam kes (misappreciation of fact). Kegagalan YA Pesuruhjaya Kehakiman menganalisa keterangan secara keseluruhan menyebabkan beliau tidak wajar mengganggu keputusan HMS. Rujuk kes Renal Link (KL) Sdn Bhd v Dato Dr. Harnam Singh [1997] 3 CLJ 225.

4. Yang Arif Pesuruhjaya Kehakiman khilaf apabila menyimpulkan bahawa HMS khilaf dan menerima pembelaan semata-mata tanpa membandingkan dengan keterangan pendakwaan terutamanya SP1. Rujuk rekod rayuan m/s 35, 39, 44 dan 45.

1) Sekiranya Yang Arif Pesuruhjaya Kehakiman meneliti keseluruhan keterangan, beliau akan mendapati keterangan pendakwaan terutamanya SP1 tidaklah kredibel, sebaliknya adalah meragukan berbanding keterangan perayu.

Kesimpulannya, dengan rendah diri kami hujahkan bahawa Yang Arif Pesuruhjaya Kehakiman telah khilaf apabila memutuskan untuk mengganggu keputusan HMS yang merupakan Hakim yang membicarakan kes. Dihujahkan sekiranya beliau menimbangkan secara keseluruhan kes, beliau sewajarnya ‘arrive at the same conclusion’ dengan keputusan HMS. Tiada ‘misdirection’ yang wujud dalam keputusan HMS yang mewajarkan Yang Arif Pesuruhjaya Kehakiman campurtangan. Pembelaan Perayu telah berjaya mematahkan anggapan yang wujud selepas Perayu dipanggil membela diri. Rujuk kes PP v Yuvaraj [1969] 2 MLJ 89.

Oleh yang demikian kami dengan rendah diri memohon agar Mahkamah Rayuan yang Mulia ini mengenepikan keputusan Yang Arif Pesuruhjaya Kehakiman yang telah mensabitkan responden dan menggantikannya dengan perintah perlepasan dan pembebasan seperti yang diputuskan oleh HMS.

Sekian, terima kasih.

TAKDIR DAN WAKTU

Salam,

Takdir dan waktu adalah salah satu daripada lagu-lagu hit nyanyian kumpulan Mega. Lagu ini timbul semasa peralihan antara zaman rock kapak yang agak keras kepada zaman rock leleh, nangis dan hingus. Lagu ini juga antara banyak lagu bertaraf biasa yang pernah memenangi Juara Lagu di TV3 iaitu satu pertandingan nyanyian yang sudah kurang ditonton orang ramai dan tidak lagi menarik.

Bukan lagu itu yang hendak dikongsi dalam entry ini. Apatah lagi liriknya juga hanyalah lirik biasa bertema cinta, hampa dan kecewa. Sebaliknya, tajuknya yang menggamit idea untuk dinukilkan. Takdir seringkali disebut apabila berlaku sesuatu musibah seperti kematian, kecelakaan, kerugian dan lain-lain. Kadang-kadang terma lain yang biasa adalah seperti sebab musabbab, memang dah nak jadi, tak dapek den nolong dan sebagainya.

Beberapa hari yang lepas, seorang saudara saya meninggal dunia semasa melahirkan anak ke 3 di sebuah hospital swasta terkenal di Shah Alam. Dikhabarkan mungkin ada unsur-unsur kecuaian kerana tindakan pihak hospital hanya dibuat selepas keadaan agak kritikal di mana arwah telah sesak nafas dan muntah-muntah akibat tempoh induce yang terlalu lama berbelas jam lamanya tanpa sebarang perubahan. Akhirnya, ajal yang menjemput apabila rahim arwah pecah dan bayi beliau turut sama melangkah ke alam barzakh dan akan menunggu beliau di syurga Insyaallah.

Keadaan yang hampir sama pernah berlaku kepada saya apabila datuk saya dilanggar kereta semasa hendak melintas jalan ke masjid beberapa tahun dahulu. Beliau cedera parah, koma dan beberapa hari kemudian meninggal dunia tanpa regain consciousness. Keluarga menerima apa yang berlaku sebagai takdir dan sudah tersurat itulah saatnya ajal datang memanggil. Namun, perasaan terkilan dan marah kepada pelaku yang melanggar itu memang tidak dapat dibendung. Pelaku tersebut hanya datang beberapa hari kemudian ke hospital untuk meminta maaf. Itupun hanya selepas memastikan tiada waris lelaki (termasuk saya) ada di hospital. Memang eloklah beliau riki dahulu, jika tidak mahu saja diberikan rock bottom atau stone cold stunner kepada mamat tersebut.

Berada di persimpangan dilema begini, wajarkah kita pursue the so called offender; samada pihak hospital atau mat rempit bedebah itu? Molekkah kita initiate satu civil suit kerana wujudnya medical negligence di pihak doktor dan hospital? Haruskah kita berkeras agar mat rempit itu dituduh di mahkamah di bawah Seksyen 41(1) Akta Pengangkutan Jalan kerana memandu secara berbahaya sehingga menyebabkan kematian?

Jawapannya adalah ya jika benar-benar wujudnya kecuaian di pihak pelaku tersebut. Ya juga jika kita berniat hendak mengajar mereka agar tidak lagi cuai dan menghalang future loss and possible death. Ya juga jika mereka angkuh dan enggan mengaku salah atau sekurang-kurangnya meminta maaf atas apa yang berlaku. Ya sekali lagi jika kita bukan mahukan wang ringgit hasil civil suit kita atau melunaskan dendam kesumat kita yang mahukan pesalah itu dihumban ke penjara sebagai galang ganti kehilangan kita.

Namun, dalam kita bersedih dan marah itu, mungkin elok juga kita fikirkan dengan adil dan sensible atas apa yang berlaku. Mungkin apa yang berlaku bukan kecuaian dan tidak dapat dielakkan. Doktor contohnya mungkin telah memilih option terbaik namun masih tidak berjaya. Mereka mungkin telah menyedari kesilapan dan sedia memohon maaf dan membantu sekadar kemampuan. Ada orang yang berkata mungkin arwah di alam sana tidak akan tenang jika dipanjang-panjangkan hal ehwal kehidupan beliau.

Oleh itu, terpulanglah pada keadaan dan kesesuaian. Anda mungkin menjadi manusia yang terbaik apabila sanggup memaafkan orang lain yang berbuat salah itu. Mungkin juga jika anda memilih meneruskan tindakan; orang lain boleh diselamatkan di masa hadapan pula. Apa yang mustahak kita menerima takdir yang berlaku dengan kesabaran hati dan kebesaran jiwa. Wassalam.

BUSINESS OR PLEASURE?

Salam,

Business or pleasure is a phrase normally related to business world. When you are travelling outstation this is one of the FAQ that will be asked. Is it a work related trip or just a trip to get away from work itself. Sometimes it's a combination of both; conducting trials, meeting clients etc and indulging in shopping, sight seeing and more shopping in the same breath.

Ironically, in most decision making process involved in business (read: mine is the so called legal business), these two extremes are the main consideration before arriving at a decision. It actually should be rephrased into "business or personal@feelings@consideration (timbang rasa). It's tough to balance between these two extremes.

If you based your decisions purely or strictly on business consideration; you might end up being a cruel person. Your formula is business only and will disregard consideration or some leeway to other parties in your business circle. On the other hand, if you're developing into mr nice guy (or mr tak kesah) in handling business, you might end up being more of a welfare officer than a lawyer.

Take fees as a referral point. Should we be too strict and impose a hardliner approach regarding fees? Withdraw automatically once a client defaulted or delayed with reasonable or even recycled reasons? Refuse to consider or even to communicate to clients once problems regarding fees surfaced? Stop being a human being and sarcastically use a popular phrase associated to lawyers (no money no talk) and lambast client without any mercy?

Or, give more latitude to clients? Offer discounts if they are unable to meet our demands? Happily accept standard reasons given by clients when they defaulted in payment and continue striving hard in our job leaving the rest to Allah and Rasul to reward us in hereafter? Finish the case and win handsomely even when clients do not pay in full?

That's why I mentioned earlier that its a difficult task to make the right choice. And that is only regarding fees alone. There are numerous decisions that business players must make in day to day job. Decisions that must be done professionally safeguarding the good name of our profession without allowing others to take advantage of your expertise and transform you into cheap labours.

Decisions that must also be humane and considerate to legitimate and acceptable reasons given by others. Decisions that will earn you respect for your considerate nature and gentlemanly approach. Decisions that will create more friends than foes that will eventually lead to more clients and prosperity.

In short, like we always hear numerous times; "jika tidak mahu dilambung ombak jangan berumah di tepi pantai". In business maybe what you need is a combination of both; a strong house and a good swimming skill. Wassalam.

KONSISTENSI v DOUBLE STANDARD

Salam,

Untuk menjadi seorang yang konsisten bukanlah sesuatu yang mudah. Apatah lagi konsisten dalam melakukan sesuatu yang bagus dan disukai ramai secara berterusan. Seorang penyerang yang konsisten perlulah menjaringkan gol dalam ratio yang baik seperti 1 gol dalam 2 perlawanan misalnya. Begitu juga penjaga gol yang konsisten adalah yang mempunyai rekod clean sheet yang agak banyak dalam semusim.

Konsistensi yang mudah dalam aspek perlanggaran undang-undang dan kekurangan pengajaran. Seperti konsisten lambat ke mahkamah, konsisten melewatkan sembahyang, konsisten berhutang dan juga konsisten memotong Q di jalan raya. Sifat konsisten sebegini senang dijumpai dan ramai yang berbakat dalam aspek ini tanpa perlu digilap.

Paling sukar adalah untuk menjadi konsisten dalam membuat keputusan berlandaskan keadilan dan kebenaran. Jika kita mengatakan hitam pada satu ketika dan putih pula pada ketika yang lain pada perkara yang bersifat sama; kita sudah mengamalkan double standard. Contoh paling mudah adalah ahli politik yang mengatakan ISA itu halal pada satu hari dan mengubahnya menjadi makruh hanya kerana PM telah tiba-tiba menjadi super cool ingin memansuhkannya. Ini dinamakan double standard pada diri sendiri dan pihak lawan yang tidak sependapat.

Kejadian 3 pegawai SPRM yang direlokasikan atau dipetisejukkan ke bahagian pentadbiran kerana sedang disiasat atas tuduhan menyamun pengurup wang boleh dijadikan kes untuk dikaji. Tindakan merehatkan mereka ke bahagian pentadbiran atas alasan tidak mahu mereka terbabit dalam sebarang penyiasatan sekali imbas nampak seperti mulia sungguh niatnya. Namun, adakah tindakan ini konsisten dengan tindakan terhadap orang kebanyakan yang juga dituduh dengan pertuduhan samun?

Adakah orang biasa akan diberi pelepasan sementara sebegitu rupa? Bukankah mereka akan direman semaksimum mungkin dan jika boleh roadshow ke balai-balai akan dibuat bagi menjustifikasi penahanan lebih 14 hari? Tidakkah biasanya kes-kes begini akan segera dituduh apatah lagi yang jelas mempuyai bukti kukuh seperti eye witness, cctv, tangkapan red-handed dan sebagainya? Adakah orang kebanyakan akan dirahsiakan nama mereka sepanjang siasatan untuk mengelakkan mereka dimalukan kerana menjaga nama jabatan?

Jawapan kepada semua persoalan di atas adalah a resounding NO. Jadi, di manakah konsistensi yang dicanangkan wujud dan dilaksanakan dalam kes begini? Perkara yang sama juga seringkali berlaku jika melibatkan VVIP, ahli politik, selebrititi dan sebagainya. Kelihatan layanan yang tidak sama rata diberikan berbanding kepada orang yang tidak punya apa-apa. Inilah yang dinamakan double standard. Mengapa perlu golongan ini dilebihkan walhal mereka menghadapi situasi yang sama dengan ramai OKT di mahkamah saban hari.

On the other side of the coin, konsistensi juga perlu wujud pada persepsi dan pandangan ahli masyarakat bahawa mereka ini bukan lagi penjenayah yang sudah disabitkan. Menjatuhkan hukuman dan menganggap mereka guilty as charged juga bukanlah satu tindakan yang konsisten. Kita tidak wajar menjadi orang yang melaungkan keadilan jika kaum kerabat kita yang dituduh; sebaliknya pantas menjatuhkan hukuman jika orang lain yang dituduh. Pendek kata, cakap hendaklah serupa bikin.

Walau bagaimana berat tuduhan terhadap mereka, walau betapa tinggi kedudukan mereka, walau bagaimana benci kita dengan jenayah yang mereka dituduh itu; mereka hanya wajar dicabut nyawa atau disumbat ke penjara melalui proses undang-undang. Anything less than that, then we are again being inconsistent and practicing double standard for the umpteenth time. Wassalam.