Pendakwa Raya v MOHD SIKRI BIN DERIS

Case Significance

Illustrates the derivative nature of an abetment charge under section 109 of the Penal Code read with section 3(1) of the Kidnapping Act 1961: where the prosecution fails to make out a prima facie case on the primary abduction offence and on the element of abetment, the accused is discharged and acquitted without being called to enter a defence.

This High Court decision at Alor Setar, Kedah, delivered by Judge Datuk Mohamad Abazafree bin Mohd Abbas, is the companion case to a joint abduction trial, dealing with a further accused charged with abetment. While four accused in the linked case were jointly charged with the abduction itself under seksyen 3(1) Akta Culik 1961 (section 3(1) of the Kidnapping Act 1961) read with seksyen 34 Kanun Keseksaan (section 34 of the Penal Code), the accused in this case was charged with an offence punishable under seksyen 109 Kanun Keseksaan (section 109 of the Penal Code — abetment) read with section 3(1) of the Kidnapping Act 1961, the prosecution alleging that he had abetted the abduction of the two complainants and the demand for ransom. Because abetment is derivative, the case against this accused turned in part on whether the primary offence and his participation in it could be established.

At the close of the prosecution case the court applied the prima-facie-case threshold, evaluating the prosecution evidence at its highest and asking whether the ingredients of the charge, including the element of abetment, had been proved. It found the evidence insufficient. Concluding that, from every angle, the prosecution had failed to make out a prima facie case against all the accused across both linked cases, the court held that it melepas dan membebas kesemua tertuduh tanpa dipanggil membela diri (discharged and acquitted all of the accused without calling on them to enter a defence). The court's reasoning underscores that where the primary offence is not established, a charge that depends on it as a matter of abetment cannot independently survive, since there is no proven principal act for the alleged abettor to have abetted. The judgment illustrates the derivative nature of an abetment charge under section 109 of the Penal Code and the consequence, at the close of the prosecution case, where neither the primary abduction offence nor the element of abetment is established to the prima-facie standard on a maximum evaluation of the evidence.