Mohd. Azmi J:

The appellant (the third accused) and two others (Low Yit San - the first accused - and Chow Soong - second accused) were charged for two offences under s. 395 of the Penal Code. On the first charge, they were alleged to have jointly committed gang robbery with two others still at large by robbing Chow Khoo Kiwang, the proprietor of a Chinese herb shop at 109D, Jalan Sultan, on 2 March 1979 at about 4.30 p.m. On the second charge, they were also alleged with two others still at large to have jointly committed gang robbery by robbing Chong Yoon, a friend of Chow Khoo Kiwang at the same place, date and time. At the commencement of the joint trial, the first accused (Low Yit San) pleaded guilty to both the charges and he was convicted and sentenced to three years imprisonment on each charge to run concurrently. The appellant and second accused (Chow Soong) maintained their plea of not guilty, and at the close of case for the defence, the learned trial President found them guilty; and on conviction, sentenced the second accused to five years imprisonment on each charge to run concurrently, and the appellant to five years on each charge, also to run concurrently and to five strokes of whipping. I dismissed the appeal against conviction and sentence, and I now proceed to give my reasons.

In my view, the only ground of appeal which had some merit was the argument that the learned trial President had erred in law in proceeding to hear the case against the appellant and the second accused after having accepted the plea of guilty of the first accused and after having heard the brief facts of the case and passed sentence on him. In those circumstances, it was the contention of the appellant that the learned President ought to have deferred the facts and sentence against the first accused until after the conclusion of the trial against the appellant and the second accused. From the records, Counsel for the appellant did apply for his case to be heard before another President, but it was turned down. It should be stressed at the outset that the first accused who pleaded guilty eventually gave evidence for the Prosecution as PW8, and the reasons given by the learned President for turning down the appellant's application could be found in the first two paragraphs of his judgment which are now reproduced:

At the outset of the trial, there were three accused persons. The 1st accused pleaded guilty and sentenced accordingly by me. Counsels for 3rd accused then applied for the trial to be proceeded with before another President. I disallowed the application as the facts as given do not implicate 2nd and 3rd accused and the full ingredients of the two charges will have to be fully proved against them. Moreover, the three accused persons were first produced on 12 March 1979 and the case had been postponed once before on 17 December 1979 and fixed for hearing on 5 June 1980. To allow one more postponement, probably to the end of 1980, will cause the hearing of the case, involving an incident that happened on 2 March 1979 to be heard about 1 year 9 months after the incident.

Even if 2nd and 3rd accused are to be heard before another President, there is nothing to stop prosecution from introducing evidence of 1st accused having been convicted for the offences he is charged with and also call 1st accused as a Prosecution witness. Since I was of the view that the trial against 2nd and 3rd accused would in no way be prejudiced by my hearing their case, I commenced hearing of the case against them.

To determine the proper course that should be taken where one of the co-accused has pleaded guilty, it would be of assistance to refer to two cases. In Toh Ah Loh & Mak Thim V. Rex [1948], the two appellants were convicted for being in unlawful possession of 48,952 rounds of ammunition under the Firearms and Ammunition (Unlawful Possession) Ordinance 1946. The first accused pleaded guilty and the trial Judge postponed sentence until aft