The court affirmed that membership in an unlawful assembly and common object can result in liability for individual members, even if not all committed overt acts.

Introduction

[1] The Appellants were found guilty and were convicted for voluntarily causing grievous hurt by dangerous weapons under s 326 of the Penal Code ( PC ) read together with s 149 and were sentenced to 15 years' imprisonment and 12 strokes of rattan each by the sessions Court Judge(SCJ) of Kuala Kubu Bharu on 3rd September 2014. The charge reads as follows:-

"Bahawa kamu bersama-sama dengan empat lagi yang masih bebas, pada 1hb Jun 2009, jam lebih kurang 7.30 malam, di tepi jalan bersebelahan kilang Tan Chong Motors, kawasan Serendah, di dalam daerah Hulu Selangor, di dalam negeri Selangor Darul Ehsan, adalah ahli kumpulan yang menyalahi undang-undang dimana tujuan bersama kamu telah dengan sengaja menyebabkan kecederaan cedera parah ke atas MUHUNTHENA/L RAMASAMY (NO K/P: 890221-14-5963), dengan memukulnya dengan menggunakan kayu hoki, parang dan kayu, yang mana boleh menyebabkan kematian jika digunakan sebagai senjata dan semasa kamu semua ahli perhimpunan tersebut serta satu atau lebih dari kamu dalam melaksanakan tujuan bersama iaitu suatu kesalahan dimana ahli-ahli perhimpunan mengetahui dilakukan di dalam melaksanakan tujuan bersama perhimpunan tersebut, dan dengan itu kamu telah melakukan satu kesalahan dibawah seksyen 149 Kanun Keseksaan dan boleh dihukum di bawah s 326 Kanun Keseksaan."

[2] The Appellants appealed against the decision of the SCJ on conviction and sentence.

Facts Of The Case

[3] On 1st June 2009, at around 7.30 evening, when the victim, Muhunthen a/l Ramasamy (PW4), was looking around for his cows along the road beside Tan Chong Motor's Factory, the motorcycle he was riding on was hit by a white van from behind and some six men came out of the van and started to attack PW4 who had fallen down on the road from his motorcycle. According to PW4, the first Appellant (DW1) attacked PW4 with a knife on his leg, left hand and head. The second Appellant (DW2) attacked PW4 with a hockey stick on his hands and legs.

[4] The victim's brother, Baskar a/l Ramasamy (PW1), rushed to the scene after his friend, Parthiban, told him that PW4 was attacked by a gang of people. When PW1 arrived at the scene, PW4 was seen sitting on the road with injuries and he was told by PW4 that it was Siva (not arrested), Poovaneswaran and Haridass (both Appellants) who attacked him. PW4 was sent to Kuala Kubu Bharu Hospital and thereafter for further treatment at Kuantan Hospital as the injuries sustained by him needed specialised treatment ie hand micro surgery. PW4 was also hospitalized at Kuantan Hospital for some 26 days before he was discharged.

[5] As a result of the attack, the victim sustained partial amputation at the left hand wrist caused by sharp objects. There were also injuries at his head and nose. PW4's injuries were confirmed by Dr Kamil Bin Mohd Kasim (PW10) and also Dr Saliana Binti Sadi (PW5) who gave evidence in the Court to be injuries caused by sharp objects such as a knife (parang) and it was highly impossible that these injuries sustained by the victim were from motor accident.

[6] PW1 lodged a police report of the incident some 8 days later and the investigating officer, Inspector Yusnita Binti Samsudin (PW9), after enquiring from PW4 at the Kuantan Hospital managed to locate and arrest the Appellants on 24th January 2012.

[7] The Appellants raised several issues in their petition of appeal which I narrowed down to six issues.

(A) Whether The Prosecution Had Proven The Ingredients Of Section 149 Penal Code.

[8] As far as s 326 PC is concerned, the Appellants were not disputing on the ingredients of the section as ther