[2010] 4 MLJ
A
B
C
Low Kian Boon & Anor v Public Prosecutor
(Heliliah FCJ)
465
finding of the HC judge that neither of the sisters seems to be aware of a plan.
It is highly questionable that if there is a person called Ivan said to be the
boyfriend of one of the sisters, that neither sister seems to be aware of any
escapade plan in existence involving someone by the name Ivan where he is
to be present. If Ivan is not a non-existent, is it really the prosecution that has
to produce Ivan as a witness? This issue is in essence interwoven with the
allegations that the prosecution has failed to call certain witnesses eg Pang Tze
Ling, ACP Osman bin Bakar, Ketua Polis Daerah Subang Jaya at that time,
to whom the second appellant surrendered himself. This necessitates the
observation of Augustine Paul J in Public Prosecutor v Dato’ Seri Anwar bin
Ibrahim (No 3):
… it is no part of the prosecution’s duty to prove the case for the defence.
D
E
With regard to witnesses who are considered material to the defence case the
learned judge said:
If the defence had felt they were material to its case, it ought to have called them.
The failure to call them, though no adverse inference can be drawn therefrom, on
the ground that they may be hostile indicates the defence’s lack of confidence in
having them on their witness stand. The defence must be aware of s 154 of the
Evidence Act 1950 which deals with the manner of treating hostile witnesses. To
therefore argue that the prosecution ought to have called them on that ground
cannot be sustained. Be that as it may, the question of rebuttal evidence from these
witnesses only arises if the defence had successfully adduced evidence that requires
to be rebutted by them (ie the prosecution).
F
G
H
I
[52] It is to noted both the appellants claimed that Ivan had told them KSK
and KSY are sisters and have suffered from the treatment of their step father.
If the first appellant who is supposedly to be the person to share the intention
with Ivan to help the sisters flee from the house, his conduct in fleeing to the
Shell petrol station and leaving KSY at the restaurant is not consistent with
a so called plan that includes the sisters.
[53] After having evaluated the evidence on record in its totality, we are
constrained to find that the infirmities in the alleged of the prosecution’s case
are untenable. On the assertions before us that the Court of Appeal has
displayed lack of appreciation of the evidence it is found that this is negated
where the learned judge stated:
We accept that finding as entirely correct based on the proved facts before the
learned.
[54] Preceding this statement is a perusal again of the case for the
prosecution as follows:
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