Abu Samah JCA

(delivering majority judgment of the court):

This is the majority judgment of the court. My learned sister, Justice Aziah Ali had seen this judgment in draft and expressed her agreement with it.

We have before us an appeal by the appellants against their convictions on an alternative charge under s 149 Penal Code (‘the Code’)

Originally the first and second appellants (the first and third accused in the High Court below) were charged and tried for an offence of murder under s 302 of the Code read with s 304 of the Code together with the second and fourth accused for causing the death of one Te Lui Yet (‘deceased’).

In the midst of the trial at the High Court, that is, after the fifth prosecution’s witness had given evidence, the learned deputy public prosecutor (‘DPP’) tendered an alternative charge under s 149 of the Code and punishable under s 302 of the Code against all the four accused together with 14 others who were at large. Section 149 of the Code provides that where an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such members of that assembly knew to be likely to be committed in prosecution of