The court requires substantial evidence of active participation to establish common intention in criminal cases, and merely being present is insufficient.

[1] The appellants were charged individually on separate dates, with two different case numbers, with the murder of the deceased, one Gobinathan a/l Kumaravellu, under s 302 of the Penal Code (' PC ') read with s 34 of the same. The charge against each of them were identical.

[2] On the application of the learned Deputy Public Prosecutor ('DPP'), the charges against both the appellants were heard together. The charge (as against the 1st appellant) reads:

"Bahawa kamu, bersama-sama (1) rakan bernama Ganesan a/I Kupusamy No KP 700217-08-5293 pada 5 Julai 2015 jam lebih kurang 12.00 fengah hari hingga 1.00 petang di beiakang Restoren Nashmeer, Laiuan Klebang Restu 2, Medan Klebang Restu, Chemor, Ipoh, Perak, dalam Daerah Kinta, di dalam Negeri Perak Darul Ridzuan, telah melakukan pembunuhan dengan menyebabkan kematian ke atas Gobinathan a/I Kumaravellu No KP 710905-08-6221 dan oleh yang demikian, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah s 302 Kanun Keseksaan dan dibaca bersama s 34 Kanun yang sama".

[3] At the conclusion of the trial, both the appellants were convicted of the offence and were consequently sentenced to suffer the death penalty in accordance with s 277 of the Criminal Procedure Code (' CPC ').

[4] The appeals by both appellants were in respect of their convictions and sentences.

[5] We heard their appeals and at the end of the hearing, after due consideration of the issues raised and submissions made by both the parties, we dismissed the 1st appellant's appeal and correspondingly though allowed the 2nd appellant's appeal. We now offer our grounds.

Case For The Prosecution

[6] The prosecution relied on the evidence of SP-1 (Kesavan a/I Gurappan) and SP-2 (Anberson a/I Mathiyalagan) to prove its case.

[7] SP-1 testified that on the morning of 5 July 2015, he picked up the 1st appellant from his house using his motorcycle, number AJE 2672, and took him to Nashmeer Restaurant in Klebang Restu, Ipoh (as indicated in the charges). While there, SP-1 further obliged the 2nd appellant's request through the mobile phone to pick him up and bring him to the restaurant from a petrol station, located about 5 minutes away from the said restaurant. All the three of them allegedly were at the restaurant to meet a scrap metal dealer.

[8] Soon after, SP-Ts friend, SP-2, joined them at the table.

[9] The deceased (Gobinathan a/I Kumaraveliu) was SP-Ts former employer.

[10] SP-1 next saw the deceased circling the area in a white Proton Waja.

[11] Still later, the deceased was again seen circling the area, now on a motorcycle.

[12] At this juncture the 1st appellant then borrowed SP-Ts motorcycle and left the restaurant with the 2nd appellant.

[13] About 10 minutes later both the appellants came back to the restaurant. SP-1 now noticed a badminton bag in the carrier of his motorcycle.

[14] Meanwhile the deceased was seen entering a hardware shop, a few shops away from the restaurant.

[15] Both the appellants then left the restaurant, again using SP-1's motorcycle and proceeded towards the direction of the hardware shop.

[16] Shortly thereafter, SP-1 saw the deceased running into the restaurant shouting for help, being pursued by the 1st appellant wielding a parang with a long blade. The deceased exited the restaurant through the back door into the back lane. SP-1 also saw the 2nd appellant riding his motorcycle and went past the restaurant towards the back lane.

[17] SP-1 further testified that he, SP-2 and others who were in the restaurant rushed