This document summarizes a court ruling on a criminal case involving gang robbery charges against Jordan Iskandar Bin Shamsudin. The key points are:
1. The prosecution called 5 witnesses but the charge was found to be defective as it failed to specifically describe the offense as "gang-robbery" as defined by law.
2. For an offense to be considered gang-robbery under section 395 of the Penal Code, there must be evidence that two or more persons jointly committed or attempted to commit the robbery.
3. However, the sole eyewitness testified that only one man snatched her bag, not that two or more persons were involved as required. Therefore, the key ingredient of the
This document summarizes a court ruling on a criminal case involving gang robbery charges against Jordan Iskandar Bin Shamsudin. The key points are:
1. The prosecution called 5 witnesses but the charge was found to be defective as it failed to specifically describe the offense as "gang-robbery" as defined by law.
2. For an offense to be considered gang-robbery under section 395 of the Penal Code, there must be evidence that two or more persons jointly committed or attempted to commit the robbery.
3. However, the sole eyewitness testified that only one man snatched her bag, not that two or more persons were involved as required. Therefore, the key ingredient of the
This document summarizes a court ruling on a criminal case involving gang robbery charges against Jordan Iskandar Bin Shamsudin. The key points are:
1. The prosecution called 5 witnesses but the charge was found to be defective as it failed to specifically describe the offense as "gang-robbery" as defined by law.
2. For an offense to be considered gang-robbery under section 395 of the Penal Code, there must be evidence that two or more persons jointly committed or attempted to commit the robbery.
3. However, the sole eyewitness testified that only one man snatched her bag, not that two or more persons were involved as required. Therefore, the key ingredient of the
IN THE SESSIONS COURT III AT KUCHING 10 IN THE STATE OF SARAWAK, MALAYSIA CASE NO: SC-62J-10-2010-I/III BETWEEN PUBLIC PROSECUTOR ... COMPLAINANT AND JORDAN ISKANDAR BIN SHAMSUDIN ACCUSED
RULING AT THE CLOSE OF THE CASE OF THE PROSECUTION In this case, the prosecution has called 5 witnesses to testify in this case. At the close of the case of the prosecution, the prosecution is required to proof a 20 prima facie case against the accused. The proof of a prima facie case under s.180 of the Act is succinctly explained in PP v Ong Cheng Heong (1998)6 MLJ 678 by Vincent Ng J at p 691 that: 'Prima facie' means on the face of it or at first glance. To me, in the light of Act A979,....definition of a 'prima facie case' could be found in the Oxford Companion of Law (p 987), which has it as : 'A case which is sufficient to call for an answer. While prima facie evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive."
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The Charge: 10 Bahawa kamu, bersama seorang lagi rakan kamu yang masih bebas, pada 20 haribulan Februari 2010, jam lebih kurang 6.00 petang bertempat di hadapan Parkson Grand Shopping Complex, Jln Tunku Abdul Rahman, Kucihng, di dalam Daerah Kuching, di dalam Negeri Sarawak dengan niat bersama telah melakukan rompakan terhadap harta milik Angela Mariana Buayah (P) 21 tahun 3 bulan, KPT:881105-52-5296 iaitu satu buah beg tangan wanita warna hitam mengandungi: 1. 1 salinan kad pengenalan milik pengadu; 2. 1 keping wang kertas Ringgit Malaysia RM5 3. Matawang Indonesia Rp.50,000 dan sekeping Rp.1000 20 4. 1 unit telefon bimbit jenis Nokia model 1650 bersama sim kad 010- 9770113 5. 1 utas gelang Stainless Steel (milik suami pengadu) 6. 1 beg bimbit jenama Louis Vuitton Dengan cara meragut dari bahu kanan penama berharga lebih kurang RM300.00.Oleh itu kamu telah melakukan kesalahan di bawah seksyen 395 Kanun Keseksaan dan dibaca bersama seksyen 34 kanun yang sama.
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Defective Charge 10 The offence under section 395 of the Penal Code has been given a specific name, namely, gang-robbery. If the offence created by a law attributes a specific name to it, then it is imperative that the offence should be described in the charge only by that name. The definition of gang-robbery clearly defined under s.391 P.C. 391. Gang-robbery. When two or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and of persons present and aiding such commission or attempt, amount to two or more, every person so committing, attempting, or aiding, is said to commit "gang-robbery". According to Ratanlal at pg. 2210, the word conjointly is the most important 20 word bearing on the liability of persons accused of an offence of dacoity (gang robbery). While it may be true to say that common intention is no part of the offence of dacoity, the word conjointly used in this section, manifestly refers to united or concerted action of the persons participating in the transaction. If individual acts of persons cannot reasonably be referred to a united or concerted action of such persons, there cannot be any question of any conviction of dacoity (gang robbery) of the group of persons concerned. Item 10 in Form 27 (sections 152 and 154) of the Criminal Procedure Code formulated a charge for an offence punishable under section 395 of the Penal Code as follows:- CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 4
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That you, on or about the . day of .. , at committed gang-robbery, an 10 offence punishable under section 395 of the Penal Code. Translated into Bahasa Malaysia, the charge would be as follows:- Bahawa kamu, pada atau lebih kurang .. haribulan . di . melakukan rompakan berkumpulan, suatu kesalahan yang boleh dihukum di bawah seksyen 395 Kanun Keseksaan. However, in the instant case the prosecution has ommitted to insert the word rompakan berkumpulan in their instant charge. Hence, the charge as framed by the prosecution in the instant case is defective as it fails to adhere to the specific name or description given in the Penal Code. Every charge under the Criminal Procedure Code must state the offence with which the accused is charged. If the law 20 which creates the offence gives it any specific name the offence may be described in the charge by that name only. See: Halsburys Law of Malaysia, Vol. 18, page 312. In the case of Public Prosecutor v Lee Pak (1937)MLJ 265, Whitley Ag CJ. held that: A charge should be so drawn that the accused should know exactly the case which he has to meet and that he should not be left guessing as to which of a number of alternatives he is alleged to have offend against. If a charge is so badly framed that CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 5
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the accused is misled thereby, an appellate court will have no hesitation in quashing a 10 conviction based on such a charge.
In Low Seng Wah v Public Prosecutor [1962] MLJ 107, Neal J made the following observation:- It seems to me that all that has been said is that if the prosecution elect to depart from the wording of the offence as set out by the legislature they create difficulties for themselves which may not be cured even with the assistance of the provisions of the CPC and, in particular, section 156 thereof.
Clearly, the charge as framed by the prosecution in this case discloses no 20 offence known to law. This is because the offence is not described as rompakan berkumpulan (gang-robbery) but rather as dengan niat bersama telah melakukan rompakan in the charge-sheet, which is clearly a grave error. It has been held by Ho Mooi Ching, JC in the recent case of Teh Boon Long v Pendakwa Raya [2009] 4 AMR 461, 446 that:- As in the case of Shawal Hj. Mohd. Yassin v Public Prosecutor [2006] 6 CLJ 392, I do not think that section 156 of the CPC can be invoked in a situation where the charge is defective as disclosing no offence under the relevant law. This is not in the way of a technical defect that can be remedied by section 422 of the CPC. CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 6
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Following the case of C. Mohammad v Public Prosecutor [1974] 1 MLJ 25, I have no 10 alternative but to hold that the conviction was a nullity, and quash both conviction and sentence under the second charge.
In Shawal Hj. Mohd. Yassin v Public Prosecutor [2006] 4 MLJ 334 at para 17, Azahar Mohamed JC concluded that a retrial could not be ordered where the charge preferred against the accused disclosed no offence in law and therefore rendering the proceedings in the court below a nullity.
See also: Chong Chee Pak v Public Prosecutor [1948-49} MLJ Supp. 45 20 It is crystal clear that charge does not adhere to the specific names or descriptions given in the Penal Code and the Criminal Procedure Code. As such, the charge preferred against the accused disclosed no offence in law. In PP v Syed Bakri (1955) MLJ xvii, Thomson J. held that: I have repeatedly emphasized that in framing charges, prosecuting officers should adhere as closely as possible to the wording of the statute constituting the offence which is charged, and that magistrates should be at pains to see that this is done. If it is done, the prosecution know what what they have to prove and the accused person knows what is charged against him. If it is done, then there is the danger of a muddle of the sort that has come to light in this case. 30 CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 7
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Furthermore, the defects adumbrated above cannot be cured by section 422 of 10 the Criminal Procedure Code. Therefore, based on the above factor alone, an order of dischagre and acquittal should be made against the accused.
INGREDIENTS OF CHARGE : s.395 PC (1) That there were two or more persons jointly concerned in the crime; (2) That the one or more of them committed or attempted to commit robbery; (3) That those who did not join in committing or attempting to commit robbery, were present and aiding such commission or attempt. (4) In furtherance to common intention. 20 That there were two or more persons jointly concerned in the crime. To constitute a gang robbery, there must be at least 2 persons who took part in the robbery. This is stipulated by section 391 of the Penal Code. PW1 in her evidence testified that in her report P8, she stated that there was only one man snatched her hand bag , P1, which contained exhibit P2 wallet, P3 one hand phone, P4 photocopy IC, P5(a) Indonesian currency Rp 50,000.00, Rp1000(P5b), P6 RM6.00 , steel bracelet (P7). Even in the cross-examiantion, she said as follows: Q: Agree/ it was searing lelaki as in the report? CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 8
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A: Yes 10 Q: Or you are not sure how many lelaki ? A: Not sure.
PW2 in her evidence said that the snatcher was wearing a full face helmet and she cannot see the face of the snatcher. She said she cannot recognize and identify the snatcher. In the light of the above, the prosecution has failed to adduce credible evidence to prove the real identity of the person(s) who were really involved in the crime. In the circumstances, the charge of robbery brought by the prosecution against the accused cannot be sustained and in fact the charge by itself already 20 defective. In the instant case, the report which was lodged by PW1 (first information report) which was reported at a first reasoanble opportunity, said that one man had snatched her handbag and the snatchers identity was never confirmed either by PW1 and PW2 to be the accused. The charge for robbery in the instant case is clearly fatal and defective when the main prosecution witnesses did not confirm it was the accused who has committed the offence. In the cross-examinaiton, PW1 initially disagreed that while lodging the report the accused was brought in the police station. However, when further cross- CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 9
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examined, she said she was shown with the hand bag and she confirmed the said 10 hand bag as belonged to her. PW2 in her evidence said that, while at the police station, the police showed to PW1 the hand bag. PW2 confirmed that the incident had occured at 6.00p.m. and the report was lodged at 6.10p.m. At this juncture, PW2 could not confirm whether by this time whether the police had showed to her the said hand bag though she does not deny the hand bag was shown to her while at the police station. From exhibit-P10 (the police report lodged by PW3), PW3 said the incident happened on 20.2.2010 at 0610 p.m. but at 0610 pm, both PW1 and PW2 were already at the Padungan police station. PW4 confirmed that according to the report that it was lodged at 6.10 pm. If the incident really occured according to PW3, i.e. 20 at 0610 pm. it had already passed the twilight zone timings. i.e. 0600 pm. In P.P v Lee Eng Kooi(1993)2 CLJ 534, Vincent Ng Kim Khoay, JC, held that: "(5) If in a case the prosecution leads two sets of evidence, each one which contradicts and strikes as the other and shows it to be unreliable, the result would necessarily be that the Court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such a situation....."
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During cross examination PW3 said the snatching was executed 10 simultaneously by two criminals whilst riding on the motorcycle. In the cross- examination, PW3 answered as follows: Agree/it is on a public road. A: Yes Agree/the story goes like this. The snatcher and the rider on the move snatch the hand bag. A: Yes Agree/after the snatcher snatched, he will speed up as fast as possible. - Yes 20 This story was completely different from what PW1 and PW3 had said. The prosecution never re-examined on this material contradiction and different version produced by PW3. This different version had obviously created doubt on the prosecution case. Justice RK Nathan in PP v Mansur Bin Yahya (2004) 2 MLJ 512 held at page 512: Where there is a conflict of evidence in the prosecutions case itself, and in this case a very material conflict, the benefit of the doubt must be given to the accused.
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In the cross-examination, PW3 said as follows: 10 Q: According to you the incident, it happened at 6.10 pm. How long it took you to chase him until you managed to get him until Tabuan roundabout? A: I could not remember.
He said after he managed to block the motorcycle, the accused was assaulted by the public. However, what would wonder me that never being clearly explained by PW3, how could be the civilians reacted so fast when not knowing the situation and why should they be bothered since the arrest happened in different place ie. at Tabuan round about (judicial notice taken by me as to the distance between Parkson Grand area and Tabuan round about) and did not know that the accused was a 20 snatcher who deserved to be assaulted before surrendering to the police. It is my view that the civilians only assault or may assault the snatcher if they knew or heard the incident had happened within their sight or within the vicinity. But PW3 also could not describe the incident and fact of the case. That was the reason the time of incident purportedly to have happened were completely different sets only to show the different versions of PW1, PW2 and PW3 testimonies.
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In Moshidi Bin Marzuki v PP (1996) MLJU 476, Muhammad Kamil J 10 (Per Curiam) said: Counsel for the prosecution should always remember that in a criminal trial , it is of utmost importance that the facts of the case are not only correct but must be accurate. The prosecutor as it were, should marshal the fact of his case, as in the instant case the subject matter had not been sufficiently identified, and there are gaps in the chain of evidence. It will be an exercise in futility that the prosecution should doggardly soldier on to fight in an otherwise useless case.
PW3 mentioned that the accused was wearing full face helmet. However, the said helmet was never shown. PW3 also mentioned there were broken pieces of the 20 helmet but looking at exhibit P9, it was not broken. However, when he was cross-examined, he said as follows: Q: You said there a broken pieces of helmet. Which broken pieces? A: It was not actually broken
PW4 who is the officer-in-charge of Padungan Police station said that there were such two instances through his experience in Padungan, Kuching when the case involving snatching happened in his areas i.e. one will wait at the stationery motorcycle whilst the other one snatched and ran towards the in waiting motor cycle and speed up whereas as the other instance is whilst on the move riding a 30 CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 13
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motorcycle, a driver will drive whereas the pillion rider will snatch the victim 10 simultaneously and speed up. And according to him, if such incident happened, the snatcher will speed up and run way without leaving any trail for any people to pursue. However, PW3 could not explain the situation as to the time and space if it is true he was really chasing after the snatchers. He did not see from which direction he stopped his car at the traffic light when he purportedly happened to see the incident. According to P10, his friends suddenly appeared to hold the accused and they surrendered the same to the Police station. In the report, PW3 did mention about his friend named Ah Chui and Ah Chui was with PW3 when reporting to the police. He also mentioned about the person as 20 Affendy in P10 of whom according to PW1 was her husband and an employee of Ah Chui who was a friend of PW3. In the instant case, the prosecution had never called Affendy and Ah Chui in order to clear the doubt in this case especially when the Defence at the earliest mean opportunity and mean possible. The prosecution is withholding evidence wherein Affendy who was the husband of PW1 and Ah Chui who was the employer of Affendy and friend of PW3 were never called to testify in order to unfold the true narration of the prosecution story. CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 14
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It is in evidence according to P10 and PW3 , that Affendy and Ah Chui were 10 present during the incident justifying or making the story of the defence more favourable cogent and credible. Thus, has invited this court to invoke s.114(g) Evidence Act 1950 since they were never called by the prosecution though they were allegedly present in the same room. In Munusamy v P.P(1987) 1 MLJ 492, Supreme Court held that: ..Adverse inference under that illustration can only be drawn if there is 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 a material document by a party in his possession, nor for non-production of just any 20 witness but only an important and material witness to the case;
The prosecution evidence was full of uncertainties and lot of material discrepancies. In Sia Soon Suan v PP (1966) 1 MLJ 116 , His Lordship Ong Hock Thye CJ(Malaya) delivering the judgment of the Federal Court at p 118 said: Nevertheless, the requirement of strict proof in a criminal case cannot be relaxed to bridge any material gap in the prosecution evidence. Irrespective of whether this court is otherwise convinced in its own mind of the guilt or CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 15
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innocence of the accused, its decision must be based on the evidence adduced 10 and nothing less. This is axiomatic.
In PP v Jamal Bin Samad & Anor.(2006) MLJU 167, YA Justice David Wong Dak Wah in respect of Lim Guan eng v PP (1998) 3 CLJ 7, Gopal Ram JCA said: Now, among the general rules that govern judicial appreciation of evidence in both civil and criminal causes in the adversarial system of justice there is one of the fundamental important, it is that a party is bound by the evidence of witness whom he calls in proof of this case. The rule was full rigour in civil cases, See Rahnavale V S Lourdenian 20 In PP v Zakaria Bin Said & Anor Criminal Trial No: 42-3-2008- III(SG), Ravinthran N. Paramaguru JC, agreed with the decision of the Learned Session Court Judge and set aside the appeal against the order of acquittal and the court inter alia, agreed that the party who bring their in witnesses are bound to vouch for them. In this instant case, PW5, Insp Joslin completely did not provide for any form of investigation in respect of the statement under section 112 CPC by the accused when it was first given at the earliest opportunity. In this case, PW5 said he did investigate the statement given under section 112 CPC and the rebuttals/police report lodged by the accused notwithstanding it 30 was put to him at the earliest mean possible. CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 16
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The evidence of PW5 that just because the police report lodged by the 10 accused was handed to another IO and shall take no further action there from, in my view, reflect or shall depict a sad day for justice in the investigation of criminal justice system. In Pang Chee Meng v PP(1992) 1 MLJ 137, the court specially directed his mind to the notes of evidence which clearly show that : a. First prosecution witness, Insp Kamaruddin bin Hj. Abdul Rahman, admitted in evidence(P11) when he said: I agreed there was a different between my earlier and now. I am not sure whether the room was occupied by more than one person taking into consideration there were two cup boards and various clothings. 20 b. PW5 Insp Baharuddin bin Mohd Nordin stated: I was aware of the two males named Ah Seng and Ah Fatt on my first visit to 13F I did not take fingerprints in the room to determine the existence of Ah Seng and Ah Fatt. I agree that if I have carried finger prints dusting, I would be able to determine the people in the room. I did not ask for description of Ah Seng and Ah Fatt from sister of the accused or other person. The court held these scattered pieces of evidence create lurking doubt in our mind on the thoroughness of the police investigation. In this case, the accused denied he led the police to the discovery of the drugs. 30 CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 17
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The Defence is entitled at the earliest mean possible to submit their line of 10 defence in order to pray that no prima facie is to be made out against the accused as enunciated in the case of PP V Lin Lian Chen (1992) 2 MLJ 561, it was held in that case that an accused person had every right to advance his defence at the earliest possible stage, without waiting for defence to be called.
Common intention: S.34 The prosecution had also failed to prove this ingredient as to whether the accused had a pre-arranged plan to commit the offence. The prosecution must provide: (1) there was common intention on the part of the accused to commit the 20 offence (2) the crime was actually committed by them in furtherance of common intention. In Juraimi Bin Husin v PP(1998) 1 MLJ 537, the court held at page 152, The law governing liability under section 34 of the Penal Code was explained by Hashim Yeop A. Sani (Later CJ(Malaya) in DATO MOKTHAR HASIMs case as follows:- Under section 34 of the Penal Code, to succeed the prosecution must prove that the criminal act was done in concert pursuant to the pre-arranged plan or arrangement. In practice, it is of course difficult to produce direct evidence 30 CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 18
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to prove intention of an individual, however, it can be inferred from his act or 10 conduct or other relevant circumstances.
However, in our instant there obvious conflicting evidence between the prosecution witnesses which produced infirmity and gap in the prosecution case. In Lee Yoon Choy v P.P (1948-49) MLJ Supp 167, Court of Appeal, Kuala Lumpur held that: " the law of common intention in this country is defined in S.34 of the Penal Code and under the terms of that section, there must exist a common intention to commit the crime actually committed, and it is not sufficient that there should be merely a common intention to behave criminally. To invoke the aid of S.34 successfully, it 20 must be shown that the criminal act complained against was done by one of the accused in the furtherance of the common intention of all."
In fact the evidence produced before this court is in fact full of contradiction and not sustainable. Not even a piece of evidence from the prosecution's witnesses can relate the accused to have committed the alleged offence. In this case, from P8 (FIR), it was alleged that one man who had snatched her handbag and never it was alleged the accused. The evidence of PW1, PW2 and PW3 were flawless. See: R v VINCENT BANKA (1936) 5 MLJ 66. 30 CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 19
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In Moshidi Bin Marzuki v PP (1996) MLJU 476, Muhammad Kamil J 10 (Per Curiam) said: Counsel for the prosecution should always remember that in a criminal trial , it is of utmost importance that the facts of the case are not only correct but must be accurate. The prosecutor as it were, should marshal the fact of his case, as in the instant case the subject matter had not been sufficiently identified, and there are gaps in the chain of evidence. It will be an exercise in futility that the prosecution should doggardly soldier on to fight in an otherwise useless case. . In PP V CHE SAUFI BIN KADIR(2005) 6 MLJ page 161, VT Singham J. said: 20 On the totality of the evidence which included material gaps and flaws in the prosecution case, it was not safe to call for the defence for the accused to supplement the weak evidence produced by the prosecution. It was a safe risk to acquit than to condemn the accused as guilty.
Conclusion Having heard the evidence adduced by the prosecution witnesses and the cross-examination as raised by the Defence, I am satisfied that the prosecution has failed to prove a prima facie case against the accused. In the circumstances, I hereby ordered that the accused to be dicharged and acquitted without calling for 30 his defence . CASE NO: SC-62J-10-2010-I/III Public Prosecutor v Jordan Iskandar Bin Shamsudin 20
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I hereby order so. 10
Sgd. Nixon Kennedy Kumbong Judge Sessions Court III Kuching
20 PO : ASP Clemund Sim Counsel : Mr.Ossman Ibrahim Messrs.Osman Ibrahim & Co.Adv
F/Kuching/Criminal/Robbery/PP v Jordan Iskandar Bin Shamsudin (2010) 4,145 words