Nik Hashim FCJ:

Background

[3] I have had the advantage of reading the judgment of my learned brother Abdul Aziz Mohamad FCJ in which he concluded that the appellants' appeals must succeed. Sad to say, I am unable to agree with my brother's learned judgment. I think the appeals must fail. My reasons are as follows.

[4] Both the appellants were convicted and sentenced to death by the High Court at Johore Bahru, before Syed Ahmad Helmy JC (as he then was) for the murder of one Sanip bin Leham and against that conviction they had appealed to the Court of Appeal (Richard Malanjum JCA (now CJ Sabah & Sarawak) Augustine Paul, and Hashim Yusoff JJCA (now FCJJ)) which dismissed their appeals (see [2006] 1 MLRA 1, [2006] 1 CLJ 1043). Hence these appeals to this Court.

[5] Before us, learned counsel for the appellants submitted that the death of the deceased was not caused by the appellants as there was no evidence how the deceased was hit. It was pointed out by counsel that there were discrepancies in SP7's evidence particularly on the contents of his first information report (P24). In P24, SP7 failed to mention the names of the appellants and this failure constituted a material omission in P24, thus rendering SP7's evidence suspicious. SP7 was also not consistent in his appellants were armed when he saw them at the scene. Learned counsel also submitted that it was wrong for the Court to find that common intention was established when the evidence of SP7 should not have been believed due to its poor quality. With all the infirmities in his evidence, counsel argued that SP7 should not be held to be a credible and reliable witness.

High Court

[6] On the above complaints all I need to do is to reproduce the following passages in the judgment of the learned trial judicial commissioner:

The direct evidence relied upon by the prosecution in proving the second element is that SP7 Lee Cheng Soi @ Hassan bin Abdullah who gave an eye witness account of the incident and though there were no lights nevertheless through the moonlight he was able to identify both the accused carrying something that resembled a piece of wood about 3 feet in length and chasing the deceased.

The defence vigorously challenged the evidence of SP7 on the ground that there is major contradiction in SP7's testimony in examination-in-chief and the cross-examination in relation to whether the 2nd accused (the 1st appellant) did hold a piece of wood and the several contradictions between his oral testimony and exh P24 which is the police report lodged by SP7 at 6.45 am. on the tragic morning of 8 Oktober 1998 particularly the failure to state that the deceased yelled that somebody was hitting his head and asked SP7 to run, that there were 3 person