Shaik Daud Ismail JCA:

The appellant was originally jointly charged with three others for the offence of murder under s. 302 of the Penal Code, in the High Court at Alor Setar. He and three others pleaded not guilty and the trial commenced before a panel of jury on 8 June 1996. After the tenth witness had testified, the prosecution tendered an amended charge for an offence of culpable homicide not amounting to murder under the first limb of s. 304 of the Penal Code. The amended charge was read and explained to the appellant and his three coaccused. The three co-accused pleaded guilty to the amended charge and they were accordingly sentenced. The appellant, however, claimed to be tried. Thereupon the learned judge discharged the jury and proceeded with the rest of the trial in a summary way. In view of the amended charge, the learned judge asked learned counsel representing the appellant whether he desired to recall any of the witness already called and the reply was in the negative. At the continued hearing two of the co-accused became crown witnesses. At the conclusion of the trial the appellant was convicted on the amended charge and sentenced to fifteen years' imprisonment from the date of his arrest. The facts leading to the conviction of the appellant are not relevant for the purpose of the present appeal which is an appeal on a pure point of law.

Mr. Karpal Singh for the appellant submitted that the learned judge erred in law when pursuant to the amendment of the charge he discharged the jury and proceeded with the rest of the hearing in a summary way. He contended that the learned judge ought to have proceeded with the trial in the presence of the jury in spite of the amendment to the charge. He argued that the finding of facts up to the tenth witness had to be decided by the jury as judges of facts and this function cannot be usurped by the learned judge. He referred us to a 1964 Federal Court decision of Khalid Panjang and Ors. v. Public Prosecutor [1964] 30 MLJ 67, and contended that the principle therein ought to apply in the present case. In Khalid Panjang's case the then Federal Court held as follows:

At some stage prior to the commencement of a trial in the High Court the question of the mode of trial must be decided ie, whether it is to be by jury or by a judge alone.

The criterion, contained in section 200 of the Criminal Procedure Code is that "in all cases where the punishment of death is authorised by law the accused shall be tried by jury". The only practicable time at which the criterion is to be applied is the commencement of the trial.

Once a trial has been commenced before a jury it can only be terminated, apart from questions of irregularity and so forth, by a verdict of the jury which must be either that the accused person is guilty or not guilty of either the offence with which he was originally charged or any other offences for which he could be convicted on the original charge by reason of the provisions of the Code as a whole.

Based on the above, Mr. Karpal Singh contended that on the fact of the present case, in spite of the amendment of the charge, the learned judge ought to have proceeded with the hearing in the presence of the jury until it is terminated by the verdict of the jury.

It is unfortunate that Khalid Panjang's case does not give the facts of the case. Therefore we are in no position to see what transpired in that case which gave rise to the principle referred to. We do not know what the charge was, as in 1963, quite a number of offences were triable with a jury then. We also do not know at what stage of the proceedings the charge was amended and by whom. The charge may well have been amended by the court itself as the last paragraph of the report seems to suggest. Therefore, we are of the view that the broad principle in Khalid Panjang's case cannot be applied to the facts of the present case. It is our view that the facts of the present case are on all fours with the