Ahmad Maarop JCA

THE APPEALS

This judgment concerns two appeals — J-05–38 of 2006 (the first appeal) and J-05–39 of 2006 (the second appeal). Both appeals arise from the joint trial of the appellants in the High Court. In this judgment, we shall refer to the appellants in the first and the second appeals as the first accused and the second accused respectively.

The first accused and the second accused (referred to respectively as ‘OKT1’ and ‘OKT 2’ in the judgment of the High Court), were jointly charged in the High Court with the following offences of murder punishable under s 302Penal Code

FIRST CHARGE

Bahawa kamu bersama-sama pada 24 April 1999 jam lebih kurang 2.30 pagi di perkarangan tempat letak kereta Hotel Sri Pelangi, dalam Daerah Segamat, di dalam Negeri Johor, dengan niat bersama telah melakukan kesalahan bunuh, iaitu menyebabkan kematian Tong Tian Leong (L) KPT: 740515–01–6399, dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 302 Kanun Keseksaan dan dibaca bersama s 34 Kanun yang sama.

SECOND CHARGE

Bahawa kamu bersama-sama pada 24 April 1999 jam lebih kurang 2.30 pagi di perkarangan tempat letak kereta Hotel Sri Pelangi, dalam Daerah Segamat, di dalam Negeri Johor, dengan niat bersama telah melakukan kesalahan bunuh, iaitu menyebabkan kematian Loo Teik Soon (L) KPT: 730706–01–6333, dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 302 Kanun Keseksaan dan dibaca bersama s 34 Kanun yang sama.

At the close of the prosecution’s case, the High Court:

(a)called on the first accused to enter on his defence on the first charge, but acquitted and discharged him on the second charge; and

(b)called upon the second accused to enter on his defence on the first and the second charges.

At the end of the case the High Court found the first accused guilty of the first charge, convicted him and sentenced him to death. He appealed against that decision. Hence, the first appeal.

The High Court found the second accused guilty of the first and the second charges, convicted him and sentenced him to death. He appealed against that decision. Hence, the second appeal.

THE PROSECUTION’S CASE

The prosecution’s case is as follows: On 24 April 1999, Normalaziah bt Malik (SP10) was a waitress at the Pelangi Disco (the disco), Pelangi Hotel Segamat. Her working hours were from 10pm to 3am. At about 12.30am on 24 April 1999, PW10 was seated with the deceased Tong Tian Leong (Ah Leong), the deceased Loo Teik Soon (Ah Soon) and three or four other persons. At about that time there was a quarrel in the disco. Ah Leong was drinking beer from a glass. That glass felled and hit the first accused who was in front of them. Ah Leong apologised to the first accused. PW10, Ah Leong and Ah Soon then left the disco, but the first accused followed them. Together with the first accused were two other persons of Indian descent. At the door of the disco, the first accused pushed Ah Leong, resulting in a scuffle between the two of them, in the course of which the first accused hit and shattered the glass door of the disco. The first accused then picked up a shard of glass and tried to thrust it at Ah Leong. Ah Leong did not retreat. He demanded an apology from the first accused. The first accused ran away.

PW10, Ah Leong and Ah Soon then walked to the car park at the back of the hotel. They got into the car and Ah Soon drove it off. At the front of the hotel, the first accused called out for Ah Leong. Ah Soon alighted from the car, followed by Ah Leong. The first accused, who was at the front door of the hotel, walked towards Ah Soon. Then the second accused, who was carrying a knife, emerged from the rear of the first accused. At that time Ah Soon was in front of the car while Ah Leong was behind the car. The second accused ran towards Ah Soon and stabbed Ah Soon twice. After that the second accused moved towards Ah Leong and stabbed Ah Leong thrice. Then the first accused took a brick and smashed the front and th