Zaki Azmi CJ:

This case is based purely on the finding of facts by the learned trial judge. There is hardly any new or novel point of law that needs to be considered. The laws that are relevant to the case have all been well established. The finding as to the identity of the appellants which was upheld by the Court of Appeal are really all the facts in issue.

Nevertheless, I looked at and evaluated the evidence again. Below are my findings.

In addition, at this court and not at the courts below, the appellants raised the question whether the trial judge had properly advised the appellants of their rights at the close of the prosecution’s case.

The first appellant in Criminal Appeal No 05–21 of 2007(P) was charged under Firearms (Increased Penalties) Act 1971the same time causing injury to the person earlier mentioned. These offences were alleged to have been committed on 5 August 1992 at about 2.20am at a pub known as Hot Lips Lounge located at Jalan Pinang, Georgetown, Pulau Pinang.

On that unfortunate night, the witnesses and the deceased had decided to visit the pub because the deceased had completed a major project (‘Oleh kerana si mati baru-baru menghabis satu kerja besar …’). That was at about 11.30pm. At about midnight, there was a commotion between two groups of people in the pub. There was an altercation in Chinese. Suddenly the lights came on. Two of those who had been involved in the commotion approached the deceased and his friends. The first appellant questioned the identity of the deceased as well as where he had come from. The first appellant pointed the gun towards Edmund (PW6) and shot him. They were told to take out their wallets and money which they duly complied with and placed them on the table. These wallets and a gold chain were subsequently robbed off them. They were then asked to put their heads on the floor in a prostration position. Then after reloading his gun, the second appellant shot the deceased.

Both the first and second appellants were found guilty and convicted by the High Court. Their appeals to the Court of Appeal were both dismissed.

Both appellants submitted that the trial judge had erroneously directed the accused of their rights at the close of the prosecution’s case.

It is to be noted that at the High Court the first appellant was represented by a counsel, different from the one appearing in this court. The second appellant however was represented by the same counsel at all levels.

Counsel for the first appellant at this court contended that at the close of the prosecution’s case his client was wrongly advised by the trial judge of his rights. According to him, the judge had erroneously advised the first appellant that if he elects to remain silent, he may not be deemed guilty. Counsel for the second appellant supported this contention for the benefit of his client.

The basis of the first appellant’s submission is what appears at p 202 of the record of appeal on 9 March 1999:

Mahkamah: … Court also clarifies that (sic) the press reports on the proceeding on the last occasion when all counsel (sic) were present, to effect that the court could deem silence as admission as wholly erroneous (sic) and also inaccurate. The Court merely asked the 1st Defendant through interpreter when the Court was informed that the 1st Defendant elected to remain silent. Whether he knew what he was doing — namely by electing to remain silent. …

DPP: That was what I was informed.

Karpal: I agree the Court merely asked the 1st Defendant whether he was aware of what he was doing.

Encik Hullon: I confirm.

(Emphasis added.)

This clarification by the learned trial judge, as the notes disclosed, seems to be as a result of a wrong report in the press. The judge was clarifying the error that appeared in the media after the last adjournment probably on 4 February 1999. The notes are not too clear on this.

Counsel urged us to infer from the underlined words that what the court meant was that it was wholly erroneous and also inaccurate