Harun J:

These eight accused were jointly charged before the Sessions Court at Kelang as follows:

1st Charge:

That you jointly on 19 August 1978, at about 2.30 a.m. at the Sri Subramaniam Temple, Kerling, in the District of Ulu Selangor, in the State of Selangor, in furtherance of the common intention of you all, did cause the death of Mohd. Amin bin Doyak with the intention of causing such bodily injury as was likely to cause death and you have thereby committed an offence of culpable homicide not amounting to murder, punishable under s. 304 Pt. I of the Penal Code and read together with s. 34 of the same Code. 2nd Charge:

That you jointly on 19 August 1978, at about 2.30 a.m. at the Sri Subramaniam Temple, Kerling, in the District of Ulu Selangor, in the State of Selangor, in furtherance of the common intention of you all, did cause the death of Mispan bin Tunut with the intention of causing such bodily injury as was likely to cause death and you have thereby committed an offence of culpable homicide not amounting to murder, punishable under s. 304 Pt. I of the Penal Code read together with s. 34 of the Penal Code.

3rd Charge:

That you jointly on 19 August 1978, at about 2.30 a.m. at the Sri Subramaniam Temple, Kerling, in the District of Ulu Selangor, in the State of Selangor, in furtherance of the common intention of you all, did cause the death of Suppian bin Ali with the intention of causing such bodily injury as was likely to cause death and you have thereby committed an offence of culpable homicide not amounting to murder, punishable under s. 304 Pt. I of the Penal Code read together with s. 34 of the same Code.

4th Charge:

That you jointly on 19 August 1978, at about 2.30 a.m. at the Sri Subramaniam Temple, Kerling, in the District of Ulu Selangor, in the State of Selangor, in furtherance of the common intention of you all, did cause the death of Ahmad Nasiruddin bin Bunyamin with the intention of causing such bodily injury as was likely to cause death and you have thereby committed an offence of culpable homicide not amounting to murder, punishable under s. 304 Pt. I of the Penal Code and read together with s. 34 of the same code.

At the commencement of the hearing, the learned Deputy Public Prosecutor applied for the trial to proceed on the first three charges with the fourth charge being stayed on the grounds that if the trial were to proceed on all four charges it will offend against s. 164 of the Criminal Procedure Code (CPC) and the trial would consequently be a nullity.

The defence objects to such a course on the grounds that the accused will be placed in double jeopardy in that there would be two separate trials in respect of offences alleged to have been committed which arise out of the same transaction. The defence contends that all four charges should be tried together under s. 170 CPC.

In the event, the learned President ordered the trial to proceed on the first three charges and stayed the hearing of the fourth charge. At the request of the defence yesterday, the learned President adjourned further hearing to Monday 26 February 1979 to enable this Court to give the necessary directions under s. 35 of the Courts of Judicature Act, 1964.

At the outset it must be said that the prosecution's concern is the legality of the trial. Such concern is understandable in view of the Privy Council's decision in Subramania Ayyar v. King-Emperor 28 IA 257 and followed in Chin Choy V. Public Prosecutor which held that where charges are tried together in contravention of any of the provisions of the Criminal Procedure Code there is an illegality which cannot be cured and that any convictions had cannot be sustained.

The question then is whether these four charges can be tried together. The general rule is that every accused person should be charged and tried separately for every distinct offence: s. 163 CPC. This general rule, however, is subject to four exceptions, viz.:

(i) Not more than three offence