Richard Malanjum CJ (Sabah & Sarawak):-

Introduction And Background Facts

[1] Before us are two appeals taken together. For convenience in this judgment we will refer to the respective appellants as the 1st appellant for criminal appeal No. 05-19-2007 (1st accused in the trial below) and the 2nd appellant for criminal appeal No. 05-20-2007 (2nd accused in the trial below). Both appellants are appealing against the decision of the Court of Appeal (COA) dismissing their appeals and affirming the judgment of the learned trial judge who convicted them on four charges of murder and sentenced them to death accordingly.

[2] When the hearing began before us learned counsel for the 2nd appellant requested that he submitted first in view of the issues he intended to raise. Learned counsel for the 1st appellant agreed. Hence we acceded to the request. In fact when his turn to submit came up learned counsel for the 1st appellant substantially adopted the submission of learned counsel for the 2nd appellant.

[3] Initially these two appellants were charged together with Kumaresan (the 3rd accused). However at the end of the prosecution case the 3rd accused was discharged and acquitted without his defence being called. There was no appeal against his acquittal. All three were charged for causing the death of four persons namely, Sathian a/l Nalliah (Victim 1), Virama a/p Subramaniam (Victim 2), Juriyah (Victim 3) and Balakrishnan a/l Maniam (Victim 4). The bodies of the first three victims were found dead at house No. 82, Laluan Tasek Timur 16, Taman Seri Dermawan, Bercham, Ipoh, in Kinta District, Perak Darul Ridzuan. The original three charges against them alleged that the time of commission of the offence was between 5.15pm and 8pm on 12 March 1998 at the place where the bodies were found. At the end of the prosecution case the learned trial judge amended the charge to exclude the 3rd accused and the alleged time to be between 6.30pm on 12 March 1998 and 6.45am on 13 March 1998 but s. 34 of the Penal Code was retained.

[4] The body of victim 4 was found at 292.4 km of the North-South Highway on the night of 13 March 1998. However, in the original charge the offence was alleged to have been committed on 12 March 1998 between 9pm and 10pm at Malika Jewellers, No. 27, Jalan Lahat, Ipoh, in the Kinta District, Perak Darul Ridzuan. The learned trial judge also amended the charge with the alleged time of commission of the offence to be between 6.30pm on 12 March 1998 and 11.45pm on 13 March 1998 at an unknown place. Similarly s. 34 of the Penal Code was maintained.

[5] The background facts of these appeals have been meticulously narrated by both the lower courts (See: [2007] 4 CLJ 643 and [2000] 1 CLJ 446). As such in this judgment we only need to highlight the salient facts.

[6] Briefly, the finding of the bodies of the first three victims at No. 82, Laluan Tasek Timur 16, Taman Seri Dermawan, Bercham, Ipoh was the result of the initial investigation by the police after Harminderjit Singh (PW33) lodged a police report of what he saw at around 1am on 13 March 1998.

[7] PW33 was on his way for supper when he was attracted by the sound of the burglar alarm that went off in the jewellery shop known as Kedai Emas Chitra. He also saw a Proton Iswara with registration no. PCV 7749 parked outside the shop with a person inside seated on the driver's seat. Subsequently two other persons came out of the jewellery shop. The parked car then left the vicinity with PW33 following but only to lose it along Jalan Gopeng.

[8] The bodies found were that of victim 2, the wife of Nalliah Periasamy (PW26) who was the owner of the jewellery shop, his son victim 1 and the maid, victim 3. All had been brutally killed with victim 1 and victim 3 tied up with red and yellow fibred rope. PW26 was away in India at that time attending to his other son's graduation. On the morning of 12 March 1998 victim 2 and victim 3 came to the shop and were seen returning home in