JUDGMENT

Mohd. Azmi FJ:

The appellant was convicted at the High Court, Kuala Lumpur on a charge of culpable homicide not amounting to murder with three others still at large, an offence under the first limb of s. 304 read with s. 34 of the Penal Code and sentenced to 10 years' imprisonment to take effect from the date of his arrest. He was originally charged under s. 302 read with s. 34 of the Penal Code for the murder of Yap Sim Poh but at the close of the case for prosecution, the charge was amended to the lesser charge for which he was found guilty and convicted. The appellant who at the relevant time lived in Kuala Lumpur and worked as a fishmonger at Petaling Jaya Market, was alleged to have committed the offence with three others still at large on 12 May 1980 at about 9.30 p.m. at Jalan Peria, Sekinchan in the District of Sabak Bernam. He now appeals against conviction and sentence.

Although Datin Saraswathy Devi for the appellant has raised a number of grounds as to why the conviction cannot be sustained, we propose to deal only with two matters which we think are sufficiently material to merit our consideration.

The first is the argument that the trial was a nullity on the ground that the appellant having been given in charge to the jury in accordance with s. 210(ii) Criminal Procedure Code, the remaining provisions of Chapter XXII of the Code including the requirement for the jury to return a verdict were never complied with and as such the appellant was not lawfully convicted and sentenced. If this nullity argument succeeds then it would follow that a retrial should be ordered before a single Judge and not before a new jury as the offence under s. 304 of the Penal Code is not punishable with death and trial by jury under Chapter XXII cannot thus apply. From the Appeal Record, it cannot be disputed that the appellant was originally charged under s. 302 Penal Code which provides: "Whoever commits murder shall be punished with death". In the result he was tried by jury before the High Court as required by s. 200 CPC which states: "In all cases where the punishment of death is authorised by law the accused shall be tried by jury". Section 210(ii) then provides:

The Registrar shall then give the prisoner in charge to the jury saying the following words: "Gentlemen of the Jury, the prisoner stands charged by the name of A.B. for that he on the (here he shall recite the charge). Upon this charge he has been arraigned and on his arraignment he has claimed to be tried. Your charge therefore is to inquire whether he is guilty or not guilty and to hearken to the evidence."

What then is the procedure to be adopted when the charge upon which an accused person has been arraigned is amended to a lesser charge which does not carry the death penalty? The CPC appears to be silent on this point but we are of the view the answer is self-evident in the Code itself. It should be noted that our CPC provides three modes of criminal trial in the High Court - (1) trial without assessors before a single Judge (Cap XX); (2) trial with the aid of assessors (Cap XXI); and (3) trial by jury (Cap XXII). The application of jury trial in this country is limited to the States of West Malaysia, and unlike in England, only where the offence is punishable with death that the accused shall be tried by jury. Further, specific legislation like the internal Security Act, 1960 and the Dangerous Drugs Act, 1952 have excluded jury trial even in capital cases. In practical terms jury trial is available in this country only where the charge is murder under s. 302 Penal Code and where the trial is held in West Malaysia. In the present appeal, the appellant was properly tried before a jury when the charge against him was one for murder. But when the charge was reduced to s. 304 at the close of case for prosecution, the offence ceased to carry the death penalty and by virtue of s. 200 CPC the appellant should no longer be tried before jury. The requirement of s. 232(i) fo