The court reinforced the principle that all accused involved in a common intention can be held liable for the outcomes of their collective actions despite the lack of a specific individual's guilt for causing death.

[1] This appeal and Criminal Appeal No P-05(M)-186-05/2016 were heard together as they arose from the same criminal trial in the Penang High Court under Criminal Trial No 45B-33-11/2014. The appeals, therefore, were related whilst undeniably involving the same accused persons besides the same common core of facts and issues. We propose to give reasons for our decisions with respect to these appeals in one common judgment. We shall, in this judgment, refer to the appellant in this appeal as the first appellant and the appellant in appeal number 186 as the second appellant. Before proceeding further, we may necessarily mention that both appellants were convicted of an offence of murder under s 302 of the Penal Code and consequently sentenced to death by the High Court. The appeals before this Court were against the order of such conviction and sentence. We shall now set out the charge upon which the appellants were convicted and sentenced as aforementioned:-

"Bahawa kamu bersama-sama dengan seorang lagi yang telah dituduh, seorang lagi yang masih bebas dan seorang lagi yang telah meninggal dunia, pada 4 Jun 2011 jam lebih kurang 11.00 malam, di kaki lima di antara kedai nombor 24 dan 26, Jalan Tasek SS/1, Bandar Tasek Mutiara, di dalam Daerah Seberang Perai Selatan, di dalam Negeri Pulau Pinang telah membunuh Vijaindran Sivanathan (No K/P: 870925-35-5591) dan dengan ini kamu telah melakukan kesalahan yang boleh dihukum di bawah s 302 Kanun Keseksaan dan dibaca bersama dengan s 34 Kanun yang sama."

[2] It might be apposite to begin with an emphasis on a preliminary matter. As can be seen from the charge, both appellants were alleged to have committed the offence together with 3 other persons who, for the reasons stated in the charge, were not charged and tried in the instant case before the Court of first instance. One of them, namely Arumugam Shanmugam, also known as Alleycat, had already been charged with the offence separately in 2014 whilst the second person who was still at large, was Kalaimogan Chelamuthu also known as Sassi or Taukley. The third person was Yogaran Veeriah who apparently passed away before the appellants were charged. Yogaran Veeriah was also known as Kuthai. Arumugam Shanmugam was convicted by the High Court but was on appeal acquitted by the Court of Appeal [ Arumugam Shanmugam v. Public Prosecutor , [2014] 5 MLJ 443].

Case For The Prosecution

[3] With that preliminary observation, we shall proceed to state the material facts which we have garnered from the evidence led by the prosecution. On that fateful night, to be exact, on 4 June 2011 circa 8.30 pm, before the murder, Kamalraj Muniandy (PW10) was outside Mahen's house at Taman Enggang Indah, Pulau Pinang chatting to Mahen whilst seated on a motorcycle. At that time, the first appellant and his younger siblings namely the second appellant and Sassidaran came on a motorcycle. The first appellant told Mahen that Sassidaran was beaten up by Mahen's father in law. In the event which soon transpired, the first appellant slapped PW10 accusing him of telling Mahen's father in law to beat up Sassidaran. In the meantime, PW10 also saw the second appellant hid a machete under a flower pot in front of Mahen's house. As they were arguing, PW10 left the place and returned home. Upon his return, PW10 telephoned and informed the deceased that he was slapped by the first appellant.

[4] At about 9.30 pm, the deceased came to PW10's house after which they went to sit on a concrete TM Box to drink alcohol. Around 11 pm, Alleycat and Kuthai came. Kuthai wanted to talk to PW10 but PW10 told Kuthai that they should talk tomorrow. PW10's response prompted Kuthai to accuse him of being rude