Augustine Paul JCA:

The accused was charged with an offence of murder under s. 302 of the Penal Code in the High Court at Temerloh. He was found guilty. Upon his conviction the mandatory death penalty was imposed. His appeal against the conviction and sentence was dismissed by the Court of Appeal. He has now appealed to this court.

The deceased, Ali Ahmmed bin Mohammed Ullah, was known to the accused and one Meganathan a/l Mariapen (PW4), the principal witness for the prosecution. The investigation in this case commenced with the discovery of the headless body of the deceased in Ladang Kim Swee Leong by Gopal a/l Ammaswasai (PW3) on 23 August 1994. PW4 said that about three to four weeks prior to the incident the accused had told him that in order to win in the four-digit lottery the head of a person was necessary. On the evening of 19 August 1994 PW4 was driving his car with the accused and the deceased as passengers towards Kampung Awah. On the way the accused bought a bottle of samsu and two cans of beer. The accused and the deceased who were at the backseat were consuming the alcohol. On the way they stopped at the house of the accused's mother where the deceased continued drinking. They left the house at about 9pm. After having travelled for a while the accused asked PW4 to stop the car as he wanted to finish his drink. He then asked PW4 to drive into an oil palm estate by the side of the road in order to avoid being caught drinking by the police. The car stopped at a spot which was not visible from the main road. The three of them got down from the car. PW4 sat on the bonnet of the car and was eating peanuts. The accused and the deceased were drinking at the rear of the car. PW4 then heard the voice of the deceased and the sound of someone being hit. He went to the rear of the car and saw the accused hitting the deceased on the neck with a rattan cane twice. As PW4 said in his cross-examination:

Semasa saya nampak OKT pukul simati di leher saya rasa takut. Semasa menunggu OKT balik ke kereta selepas mengheret simati saya merasa takut. Saya tidak lari walaupun takut. Saya takut kalau lari mungkin kena pukul oleh OKT.

The deceased then fell down and the accused, carrying a parang with him, dragged him away. The accused then returned and told PW4 that he had lost the parang. He asked PW4 to drive him to a temple nearby to get another parang which they did. PW4 was still frightened. They then returned to the place where the deceased's body had been left. The accused asked PW4 to remain in the car and went to the place where the body of the deceased was lying. PW4 heard the sound of hacking. He was frightened. Soon after that the accused returned to the car with a bundle together with the parang, the rattan cane and the shirt and trousers of the deceased. He placed them in the boot of the car. They then continued with their journey with two stops on the way. The first stop was somewhere along Jalan Maran where the accused threw the parang, the rattan cane and the shirt and trousers into a swamp by the side of the road. At the next stop the accused took out the bundle which was in a black plastic container and concealed it under some oil palm fronds. They then went back home and slept. On 20 August 1994 PW4 saw the accused with a cangkul. As he said in his evidence:

OKT ada mengatakan ia telah tanamkan kepala simati. Saya beritahu OKT saya merasa takut. Ia beritahu saya jangan beritahu sesiapa termasuk polis. Beliau kata semua perkara ini dilakukan oleh beliau. Saya jangan risau. Jika ditangkap beliaulah yang bertanggungjawab.

With regard to his knowledge of the intention of the accused in killing the deceased PW4 said in his cross-examination:

Pada 19.4.94 pada atau sebelum simati menumpang kereta saya OKT tidak ada mengatakan ia ada niat untuk membunuh simati. Pada bila-bila masa pun OKT tidak ada mengatakan ia ada niat untuk membunuh simati.

On 23 or 24 August 1994 PW4 gave a statement to the police. On 26 August 1