460 Malayan Law Journal [2010] 4 MLJ It is essential to appreciate the scope of s 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is a withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non production of not just any witness but an important and material. This could well be illustrated in the case of not calling Sathiya. Sathiya was offered to the evidence but it is in evidence that Sathiya could not identify a person or persons at the identification. In this instance it could not be considered a suppression of evidence. Pang Kah Yee alleged to be very much with the second appellant that night only joined the group in SP17’s house after the appellants were picked up from behind the Shell station. There is here not a defence of alibi but a defence of being present at the Shell station for a different purpose. With regard to Pang Tze Ling (or Chee Ling) SP17 stated: … Arah stesen minyak Shell dan rumah Tze Ling dari restoran adalah berlainan. Saya tidak membawa Tze Ling dari restoran bersama-sama saya ke stesen minyak Shell. Saya tidak membawa Tze Ling ke stesen minyak Shell kerana Tze Ling hendak balik ke rumah dahulu. Dia cakap kepada pemandu kereta selepas beredar dari restoran dan masa dalam kereta, selepas panggilan telefon. Saya tidak tahu samada Tze Ling mengetahui kami akan pergi menjemput Dexter. [40] Hence there is no merit in this argument above adverse inferences especially as in this case, the audio visual advantage of the HC judge provided him with the basis of establishing the prima facie case and hence we conclude that there are no so called ‘gaps’ to be filled in as they are not material. [41] In essence the defence which has been described as an ‘afterthought’ is entirely dependent upon the existence of ‘Ivan’. Throughout the defence Ivan is the person alleged to be buying the parang in the presence of the appellants, planning to help KSK to escape as well as the person is alleged to have requested the second appellant to obtain transport. Nevertheless in its totality the question here is whether the defence did adduce evidence to rebut such that it would succeed in the prosecution failing to establish its case beyond a reasonable doubt. [42] Throughout the defence Ivan is supposedly the key person responsible, the reason for going to the house of the deceased. It is found that the defence itself did comprise denials. In one of the questions in the course of cross-examination, first appellant had replied, inter alia: Ivan yang suruh naik teksi ke rumah Sue Yin. Tujuan menaiki teksi ke rumah Sue Yin untuk membawa beliau lari dari rumah. Saya akan membawa Sue Yin, di mana Ivan akan membawa Sue Kin. Bukan, membawa mereka lari dengan teksi. A B C D E F G H I

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