JUDGMENTBY: HASHIM YEOP A SANG J, ABDOOLCADER FJ

HASHIM YEOP A SANG J The charge reads as follows

That you on April 14, 1982 at or about 1.30 a.m. at Kampong Sri Asahan,

Gemencheh, in the District of Tampin, in the State of Negeri Sembilan,

in furtherance of the common intention of you all, did commit murder by

causing the death of one Date Mohd. Taha bin Talib, and that you have

thereby committed an offence punishable under section 302 of the Penal

Code read with secion 34 of the said Code.

The prosecution had earlier in the proceeding sought to admit the cautioned statement of Rahmat Satiman. Based on Johnson Tan Han Seng v Public Prosecutor [1977] 2 MLJ 66, 72 the defence challenged the voluntariness of the statement. The question of voluntariness of the statement (P101) was dealt with in my written ruling dated November 8, 1982 -- Appendix A. The ruling was that P101 was voluntary and admissible but did not deal with the question of its truth. Because at the close of the prosecution case the defence submissions raised important issues of facts and law. I felt that basing on Public Prosecutor v Sihabduin & Anor [1980] 2 MLJ 273 a full review of the prosecutions evidence adduced was necessary and this review is contained in a written decision dated December 31, 1982 -- Appendix B.

The central issues I dealt with in the written decision included the law of section 34 of the Penal Code and section 30 of the Evidence Act. Based on what I considered the proper principle to adopt following a long line of authorities I acquitted Nordin Johan and Aziz Abdullah without calling for their defence. In simple language the principle is this. A man can be convicted on his own confession. But a man cannot be convicted on the confession of another unless there is sufficient evidence, independent of the confession, to warrant his conviction. Defence was however called in respect of Dato Mokhtar and Rahmat Satiman.

Regulation 17 of the Essential (Security Cases) Regulation, 1975 as amended by P.U.(A)362/75 reads as follows:

"The court shall decide on the guilt or innocence of the accused only

at the conclusion of the case for the defence, and it shall so decide

upon hearing and considering the evidence of both the prosecution and

the defence as a whole, having regard to the justice of the case,

without regard for the technicalities of the rules of evidence or

procedure, or for any defect concerning the charge."

There are therefore three principal duties imposed on the trial judge before making his decision at the conclusion of the trial. They are --

(1) He shall decide upon hearing and considering the evidence of both the prosecution and the defence as a whole;

(2) He shall have regard to the justice of the case; and

(3) He shall in arriving at his decision disregard technicalities of the rules of evidence or procedure.

The sting of this regulation is of course carried in the third limb of the regulation and it is in fact the object of attack by the purists amongst the lawyers. But fortunately the problem does not arise in this case because both the prosecution and the defence adhered as far as possible to the normal rules of evidence.

In my opinion the first and the second limb of Regulation 17 carry the normal functions of a court, that is to say to have regard to the totality of the evidence and the justice of the case. These provisions do not, however, in any way lessen the burden of the prosecution to prove their case beyond reasonable doubt and that this burden never shifts. Therefore the test to apply at the end of the defence is still the normal test, that is whether the defence has cast a doubt on the truth of the prosecution story. To warrant an acquittal however the doubt created must not merely be a fleeting doubt or a capricious doubt but a doubt in respect of which a substantial reason can be given. The question to ask now is -- has the defence ev

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