JUDGMENT

Mohd. Azmi SCJ:

The appellant was tried by jury in the Kuala Lumpur High Court and found guilty of murder by a majority verdict of 5 to 2, and he was convicted and sentenced to death on 10 April 1987. The charge preferred against him was in the following terms:

That you on 3 October 1983, between 5.00 p.m. and 6.00 p.m beside an unnumbered house near the Lin Lum Crematorium, No. 2, Lorong Kerayong, Kuala Lumpur, in the Federal Territory of Kuala Lumpur, did commit murder by causing death of one Chan Yee Mai (f) and that you have thereby committed an offence punishable under s. 302 of the Penal Code.

There are numerous grounds of appeal, but we need only deal with three major arguments which in our view merit consideration.

The first principal complaint relates to the circumstances leading to the majority verdict of guilty being returned by the jury which according to learned Counsel for the appellant would render the guilty verdict null and void. It is on record that when the learned Judge began his summing up to the jury on the last day of the trial, it was already past the normal office hours. The jury retired to consider their verdict at 5.57 p.m. and when the Court re-convened at 8.08 p.m. the foreman informed the Judge that the jury had come to a 4 to 3 decision, whereupon the learned Judge invoked s. 228 Criminal Procedure Code and required the jury to retire again for further consideration. It was only after the jury had retired for the second time that they returned a verdict of guilty of murder by a majority of 5 to 2 to which the learned Judge concurred. It was strenuously argued that since the jury had already decided by a majority of 4 to 3 in the first instance, they became functus officio and as such the verdict by which the accused was found guilty was a nullity. There is also allegation in the petition of appeal that the learned Judge had pressurised the jury to come to a verdict by telling them that they would have to stay in Court the whole night until a verdict was reached.

In our view the functus officio argument is wholly without substance. In Siew Kam Weng v. Public Prosecutor [1990] 1 CLJ 260 (Rep) at 263, this Court had the occasion to express an opinion on s. 204 of the CPC. We wish to reiterate that because of the express requirement under s. 204(ii) that a majority verdict of the jury must not be less than 5 to 2, anything less cannot constitute a verdict in law. Accordingly, when the jury in the case before us had indicated that they had reached a decision by a majority of 4 to 3, the learned Judge was perfectly entitled to resolve the deadlock by requiring them to retire for further consideration under s. 228 Criminal Procedure Code before exercising his discretion to discharge them under s. 234, should they continue to disagree on a verdict. Secondly, the authority of Lee Koh Eng v. Public Prosecutor relied upon by the learned Counsel for the appellant for the argument that the jury was functus officio after they had returned a majority verdict of 4 to 3, was a case decided in Penang under the Straits Settlement Criminal Procedure Code, in particular with reference to s. 193 which was not in pari materia with s. 204(ii) of the Federated Malay States Criminal Procedure Code. Section 193 (SS Cap. 21) merely provided that the jury should consist of seven persons. Whereas s. 204(ii) (FMS Cap. 6) goes further by providing that "The verdict returned shall be unaminous or by a majority of not less than five to two." Thus, in Lee Koh Eng, the jury had in fact returned a verdict of guilty of murder by a majority of 4 to 3 in the first instance, before they subsequently returned a similar verdict by a majority of 5 to 2. Whereas, in the instant case, because of the manner of the questions put to the foremen, the jury did not announce whether their earlier 4 to 3 majority decision was one of guilty or otherwise. What the learned Counsel for the appellant has failed to appreciate is that the procedure adop