Denys Roberts CJ, Steven Chong J:

All three defendants (D1, D2, and D3) faced one charge of gang robbery and murder in the following terms:

That you, on 17 January 1994, at about 9.00 a.m. at Jalan McArthur, Bandar Seri Begawan, in the state of Brunei Darussalam, conjointly committed gang-robbery and that in the commission of such gang-robbery, murder was committed on one Koh Siew Hing (female 51 years) by one of you and thereby you have committed an offence punishable under s.396 of the Penal Code (Cap. 22).

D2 alone faced a second charge of murder, contrary to s.300 of the Penal Code, as follows:

That you, on 17 January 1994, at about 9.00 a.m. at Jalan McArthur, Bandar Seri Begawan, Brunei Darussalam, did commit murder by intentionally causing the death of one Koh Siew Hing and you thereby committed an offence punishable under s.302 of the Penal Code (Cap. 22).

The addition of the second charge, on which D2 was not committed for trial, did not, in our opinion prejudice D2 who was already facing a charge of gang robbery and murder with the two other defendants.

The extra charge would permit D2 to be convicted of murder, if the evidence established that he had been guilty of this and that the others had not taken part in any gang robbery which resulted in the murder of the woman named in the charge. No objection was taken to its addition by Counsel for D2.

The Law

The prosecution must prove that each of the defendants is guilty of the offences charged beyond reasonable doubt. Throughout our judgment, if we express ourselves as satisfied or sure or say that something has been proved or that we have no doubt, we should be taken as intending, in each case, to mean that the fact has been proved beyond reasonable doubt by the prosecution, on which the burden lies throughout.

In the first charge, it is alleged that all three defendants took part in gang robbery during which murder was committed, contrary to s.396 of the Penal Code, an offence which brings with it the penalty of death.

To succeed in a charge under this section, the prosecution must establish the following matters:

(a) That two or more persons were conjointly committing robbery;

(b) That the robbery was done in circumstances amounting to gang robbery;

(c) That during the course of this gang robbery murder was committed by at least one of those committing gang robbery - see Dambarudhar Injal v. State [1951] AIR (ASS) and Public Prosecutor v. Neoh Bean Chye [1975] 1 MLJ 3.

Gang robbery is itself defined by s.391 of the Penal Code as follows:

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 persons present and aiding such commission or attempt, amount to 2 or more, every person so committing, attempting, or aiding is said to commit 'gang robbery'.

Section 390(2) of the Penal Code reads:

Theft is 'robbery' if, in order to the committing of the theft, or in the committing the theft, or in carrying away, or attempting to carry away, property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause any person death or hurt or wrongful restraint, or fear of instant death, or of instant hurt, or of instant wrongful restraint.

Theft is defined by s.378 of the Penal Code as follows:

Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.

Section300 of the Penal Code sets out those occasions on which culpable homicide is murder:

(a) if the act by which the death is caused is done with the intention of causing death; or

(b) if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or

(c) if it is done with the intention of causing such bodily injury to any person, and the bodil