Abdul Malek Ahmad PCA:

The respondent was charged as follows:

First Charge

That you, on or about the 10th day of April, 1997 at about 10.30 p.m. at Sungai Maaw Road, Sibu in the State of Sarawak, committed murder by causing the death of Joka Purnomo and that you thereby committed an offence punishable under section 302 of the Penal Code (F.M.S. Cap. 45).

Second Charge

That you, on or about the 10th April, 1997 at about 10.30 p.m. at Sungai Maaw Road, Sibu in the State of Sarawak, committed murder by causing the death of Ahmad Nuryani (m) and that you thereby committed an offence punishable under section 302 of the Penal Code (F.M.S. Cap. 45).

The learned High Court Judge called for the defence at the close of the prosecution case on both charges and the respondent elected to give evidence on oath. He was found guilty on both charges and convicted and the learned High Court Judge (Tee Ah Sing, J), at pp. 233 and 234 in the second volume of the record of appeal, said:

Court:

This court has found the accused guilty of the 1st charge and the 2nd charge. It is now my duty to pass sentence upon you the accused. The only sentence in law for these two offences is sentence of death. It is that you be taken from this place to a lawful prison and thence to a place of execution and that you be hanged by the neck until you are dead.

The respondent appealed to the Court of Appeal and in a somewhat brief judgment, the Court of Appeal (Denis Ong Jiew Fook, Mohd Saari Yusoff and Mohd Noor Ahmad JJCA), in ordering a retrial, pronounced:

We are unanimous in our decision that this appeal be allowed and that a retrial is ordered. It will be for the Public Prosecutor to decide if they wish to proceed with the retrial. In our view if the retrial proceeds the proper course is to proceed on one of the charges and leave the other murder charge in the court file. It will be open to the Public Prosecutor to proceed with the other charge if it were reminded to do so subsequently. All Exhibits to remain pending retrial.

The reason for ordering a retrial in this case is that there are two convictions for murder and only one sentence is passed. Further, we are unsure as to whether the sentence passed was for the conviction on the first murder charge or the second murder charge. On the other hand, it makes no sense to pass a second sentence of death after the first sentence of death is carried out.

Both the public prosecutor and the respondent have respectively appealed and cross appealed to this court and before us both parties agreed that the Court of Appeal acted in error when it ordered a retrial especially when the merits had been argued but were not dealt with by the Court of Appeal in its judgment.

The learned deputy agreed that upon perusal of the grounds of judgment of the Court of Appeal, there was no finding whatsoever which could impute any infirmities in the decision of the learned High Court Judge as regards the conviction of the respondent on the two counts of murder. What, then, was the purpose of ordering a retrial?

He reiterated that ordering a retrial was a discretion to be exercised only in appropriate situations as stated by this court in Tan Boon Hock v. Public Prosecutor [1979] 1 MLJ 236 where it held that the power of an appellate court to order a retrial on a proper charge before another Magistrate when it is of the opinion that an accused person was convicted on a wrong charge is discretionary. In that case, since it was held that there was no proper charge, ordering a retrial was most appropriate and the learned judge had exercised his discretion properly.

Similarly, in Ooi Lean Chai v. Public Prosecutor [1991] 2 CLJ 1304; [1991] 2 MLJ 552 , the accused had originally been convicted on a charge of trafficking in heroin and 6-monoacetylmorphine (see [1990] 2 CLJ 656). At the original trial, the chemist's report had been duly served on the accused but the Supreme Court allowed his appeal against conviction on the ground th