Ahmad Fairuz CJ (Malaya):

I have read the judgments of my learned brothers Steve Shim Lip Kiong, CJ (Sabah & Sarawak) and Abdul Malek Ahmad FCJ, and my learned sister Siti Norma Yaakob, FCJ, and I concur with the reason and conclusions stated therein except for the part of my learned brother Steve Shim Lip Kiong's judgments on the issue of regs. 13 and 17 of ESCAR. For the reason stated by my learned brother Abdul Malek Ahmad, I associate myself with the dissenting judgment in Sihabduin's case.

Accordingly, I agree that the appeals of all the nineteen appellants must be dismissed. Except for the cross appeal against the sentence of the 10th appellant, the cross appeal by the public prosecutor is also dismissed. The cross appeal against the sentence of the 10th appellant is allowed and the sentence of life imprisonment is substituted with the sentence of death.

Steve Shim CJ (Sabah & Sarawak):

Background

Twenty-nine accused were initially charged with the offence of waging war against the Yang di-Pertuan Agong under s. 121 of the Penal Code. In the midst of the prosecution case the learned public prosecutor decided to charge 14 of the accused under s. 122. Ten of them pleaded guilty to the said charge. They were each sentenced to a term of 10 years imprisonment. The prosecution proceeded against the remaining 19 accused under s. 121 of the Penal Code. After a lengthy trial, they were convicted under the said s. 121. Accused 1, 2 and 3 were sentenced to death while the remaining 16 were each sentenced to life imprisonment. They have all filed their appeals against conviction and sentence. The learned public prosecutor has counter-appealed against the sentence of life imprisonment imposed on each of the 16 accused.

The Law

At the outset, the learned trial Judge addressed himself on the relevant law. Here, he touched on the ingredients necessary to sustain the charge under s. 121 of the Penal Code. He stated, quite correctly, that there were two essential ingredients involved, to wit, that the accused had waged war and that such war was against the Yang di-Pertuan Agong. He cited in support various passages from Ratanlal & Dhirajlal's Law Of Crimesas well as Archbold,which, in the main, explained the scope of s. 121. It was stated that the true criterion of the offence was the purpose or intention with which the gathering assembled; that the object of the gathering must be to attain, by force and violence, an object of a general public nature thereby striking directly against the authority of the Government. The learned trial judge also relied on a number of case authorities. The observation in one of them bears repetition herein. In Aung Hla & Ors v. Emperor (Air)[1931]Rangoon235,the court said:

The words 'waging war' in S.121 are synonymous with levying war in statute 25, Edward 3, C. 2, and where a multitude rises and assembles to attain by force and violence any object of general public nature, it amounts to waging war against the Majesty of the King. It is not the number or the forces but purpose and the intention which congregates and assembles them together and gives the impulse in arming and rising that constitutes the crime and distinguishes it from riot or any other rising for any private purpose. There is further no distinction between principal and accessory and all who take part in the treasonable act incur the same guilt and are liable to the same punishment.

In turn, the court in that case cited with approval the observation of Holt LCJ in Sir John Friendwho said:

If persons do assemble themselves and act with force in opposition to some law which they think inconvenient and hope thereby to get it repealed, this is a levying war and treason ... The question always is whether the intent is, by force and violence, to attain an object of a general and public nature by any instruments or by dint of their numbers. Whoever incites, advises, encourages or is in any way aiding to such a multitude so assembled with