Shaik Daud Ismail JCA:

The appellant, Zanorain bin Abdul Latiff @ Aziz, was convicted on 31 October 1995 in the High Court Shah Alam for an offence of murder under s. 302 of the Penal Code, and sentenced to death, after a trial with a jury. We allowed his appeal on 10 February 1998 and ordered a retrial before another judge and jury. Several grounds of appeal were put forward but Mr Karpal Singh, learned counsel for the appellant, intimated that he would proceed only on one ground, namely, that the learned judicial commissioner erred in law in not complying with the mandatory provisions of s. 231 of the Criminal Procedure Code (CPC) when the jury returned a five to one majority verdict of guilty against the appellant. As this ground involves a pure question of law, we feel it would not be necessary for us to dwell on the facts of the case especially so in view of our decision to order a retrial. It might not be amiss to mention in passing that since the amendment to the CPC by Act A 908 with effect from 17 February 1995 which abolished all trials by jury and assessors, the above ground has become academic, but in the present case, as the learned Public Prosecutor has appealed to the Federal Court against our decision we are duty bound to give our reasons thereto.

Since this appeal revolves solely on the interpretation of s. 231 of the CPC, it is relevant, therefore, to examine this particular section. Section 231 of the CPC provides:

231.

Effect of majority verdict.

If the verdict is guilty by a majority:

(a) if the court concurs in such verdict judgment shall be entered accordingly and the judge shall proceed to pass sentence as prescribed in s. 230;

(b) If the court does not concur in such verdict the accused person shall be tried again before another jury.

The appellant was originally charged before the magistrate on 18 April 1994 and after a preliminary enquiry which concluded on 28 April 1994, was committed to stand trial in the High Court. The trial in the High Court began on 10 October 1995 before a panel of seven members of the jury, pursuant to s. 200 of the CPC. In the course of the trial on 24 October 1995 one member of the jury fell ill and could not continue. As the trial had been postponed earlier to accommodate this particular member of the jury, the learned judicial commissioner thought it fit not to postpone the trial again. He invoked the provisions of s. 211(1) of the CPC and proceeded with the trial with six members of the jury. This section empowers the court, if it thinks fit, to proceed with the trial if one member of the jury for any sufficient cause is prevented from attending throughout the trial, provided that the members of the jury shall not in any case fall below six, as has happened in this case.

The trial proceeded to its conclusion on 31 October 1995, when the six members of the jury returned a five to one verdict against the appellant. Immediately thereupon the learned judicial commissioner convicted the appellant and sentenced him to death, without having recorded his concurrence of the majority verdict pursuant to s. 231 para. (a) of the CPC.

Mr Karpal Singh contented that, pursuant to s. 231 of the CPC, in the case of a majority verdict, there must be concurrence or otherwise by the learned judicial commissioner, a fortiori in this case when the majority verdict was five to one. He contended that since the learned judicial commissioner failed to record his concurrence or otherwise, it has prejudiced the appellant and the verdict is a nullity.

He cited the case of Siew Kam Weng V. Public Prosecutor [1990] 1 CLJ 260 where the appellant had been tried before a jury of seven on a charge of murder under s. 302 of the Penal Code. At the conclusion of the trial, the jury found him guilty of the lesser offence of culpable homicide not amounting to murder, by a majority verdict of five to two. The trial judge was unable to concur with the majority verdict and ordered a retrial bef