Mohd Noor Ahmad JCA:

The appellants were convicted and sentenced to death for murder. The charge reads:

That you, on the 14th day of July, 1991, between 2.00 p.m. to 5.00 p.m. in a hut at 81/2 km, Teku Road, Sibu, in the State of Sarawak, in furtherance of the common intention of you all, committed murder by causing the death of Hew Leh Poh (f), and you thereby committed an offence punishable under section 302 of the Penal Code read with section 34 of the same Code.

Briefly, on the evening of 14 July 1991 the deceased went missing whilst walking towards the direction of her home. Two days later a missing person report was lodged with the police. The initial investigations by the police did not produce any positive result. However, about two months later, the deceased's elder sister received some letters from one who signed himself as Steven Ting demanding a sum of money ranging from RM10,000 to RM15,000 for the return of the missing girl. The letters were passed to the police. On the advice of the police, another sister of the deceased was instructed to deliver RM3,000 in marked notes to the address given by Steven Ting at P.O. Box 947 located at the Sibu post office. A police surveillance was put into motion, during which about two days later the 1st appellant came on a motor-cycle and collected the money from the said P.O. Box and thereafter rode off. The registration of the motorcycle based on its number as noted by the police was traced to the 1st appellant. On 14 October 1991 the 1st appellant was arrested. Upon interrogation about the missing girl the 1st appellant led the police to the discovery of the skeletal remains of a human being at kilometer 37 Durin Road, Sibu which were eventually identified to be that of the deceased. The cause of the death was certified to be "indeterminable but the ligature with the reap knot suggests strangulation". Subsequently, the 2nd and 3rd appellants and another person were arrested. In the course of investigation they each gave a cautioned statement to the police. The cautioned statements were tendered by the prosecution and after the trial-within-the-trial they were admitted except that of the other person arrested who was acquitted and discharged without his defence been called.

In the respective cautioned statements, the 1st appellant admitted having invited the deceased to go for a joy ride in a car driven by the other person with the three appellants inside. He also admitted having sent the ransom notes. However, he denied that he raped the deceased but stated that the deceased was raped by the others and thereafter, the 2nd appellant and the other person strangled her to death with nylon rope. The 2nd appellant admitted having raped the deceased and stated that all of them took turn to rape her. He denied that he strangled the deceased but stated that the strangulation was done by the 3rd appellant and the other person. The 3rd appellant also admitted having raped the deceased and denied that he strangled her but pushed the blame for the strangulation on the 1st appellant and the other person.

It is manifestly evident that the conviction of the appellants for murder pitched on common intention is based solely on the combined effect of their cautioned statements. In their respective cautioned statement each appellant pushed the blame for the act of strangulation of the deceased to death on the others and maintained that he did not participate in the act of strangulation but was merely watching the killing helplessly.

A scrutiny of the judgment reveals that the learned judge had gathered the common intention to murder the deceased by inferences, mainly, from (i) the conduct of each appellant in not preventing the others from strangling the deceased to death but simply watching the deceased being slowly strangled and choked to death, (ii) the fact that the deceased was earlier raped by each of them and that they would be in trouble if they were to let the deceased free an