[2010] 4 MLJ
A
B
Low Kian Boon & Anor v Public Prosecutor
(Heliliah FCJ)
463
Saya tidak tanya Jimmy di mana dia meletakkan baju asalnya. Jimmy juga tidak
memberitahu saya di mana beliau meletakkan bajunya.
[46] In Gunalan a/l Ramachandran & Ors v Public Prosecutor [2006] 2 MLJ
197; [2006] 2 AMR 465, this court through the judgement of Arifin bin
Zakaria FCJ (now CJ (Malaya)) opined (inter alia):
… What needs to be considered is whether the discrepancies relate to material
aspects of the case or otherwise. As stated in Sarkar on Evidence (15th Ed), p 112:
C
D
E
F
G
H
I
Minor discrepancies are possible even in the version of truthful witnesses and
such minor discrepancies only add to the truthfulness of their evidence [Sidhan
v State of Kerala (1986) Cri LJ 470, 473 (Ker)]. But discrepancies in the
statements of witnesses on material points should not be lightly passed over, as
they seriously affect the value of their testimony [Brij Lal v Kunwar, 36 A 187;
18 CWN 649; A 1914 PC 38]. The main thing to be seen is whether the
inconsistencies go to the root of the matter or pertain to insignificant aspects
thereof. In the former case, the defence may be justified in seeking advantage of
the incongruities obtaining in the evidence. In the latter, however no such
benefit may be available to it [Krishna Pillai Sree Kumar v State of Kerala, A 1981
SC 1237, 1239; 1981 Cri LJ 734].
[47] The counsel for both appellants have urged upon us that the
prosecution’s argument that ‘Ivan’ is an ‘afterthought’ is fallible and
misconceived. The name ‘Ivan’ surfaced during the defence stage. The
defence however contends that there was already the hint of Ivan during the
cross-examination of PW5 and Pang Tze Ling who is said to know Ivan. The
criticism leveled against the prosecution’s case is that the police has done little
or nothing to investigate about Ivan.
[48] It has been pointed out correctly however that the name Ivan emerged
with several other names. But if the purchase of the parang and the plan to
help the sisters were to have been orchestrated by Ivan who according to the
defence is a gangster and the key person to facilitate the escape of the sisters
it is definitely noticeable that nothing has been raised about Ivan at the stage
of the cross-examination of the prosecution’s witnesses on behalf of the sisters
who were also charged. This would have been a reasonable expectation if the
person named Ivan was indeed to be largely instrumental to execute a plan to
facilitate the escape of the sisters.
[49] In Chua Beow Huat v Public Prosecutor [1970] 2 MLJ 29, Sharma J
referred to the case of AEG Carapiet v AY Derderian AIR 1961 Cal 359 where
Mukharji J said that:
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