Zainun Ali JCA

[1]In the instant appeal, several legal issues came up for consideration such as the effect of an uncorroborated evidence of accomplice; the issue of whether there exists a common intention; the legal consequence of non-recovery of the murder weapon; and whether the appellants succeeded in establishing the defence of self defence of a grave and sudden provocation.

THE BRIEF FACTS The prosecution’s case

[2]The charge against both the appellants read as follows:

That both of you in furtherance of common intention had on 18 December 2002, between 2.00 a.m. until 4.30 a.m. beside Jalan Pisang Raja Udang, Desa Harmoni in the district of Kluang in the state of Johor Darul Takzim had committed murder by causing the death of one Malay man, namely Azley bin Abu Bakar, NRIC No: A3147272 and thereby had committed an offence punishable under s. 302 Penal Codesection 34

[3]Basically it was in evidence that one Ibrahim bin Mohd Zain (‘PW9’) testified that both the appellants sought his help in retrieving monies owed to them by the deceased. The deceased had apparently kept for himself monies which were supposed to be shared between them after the deceased had disposed of a stolen television set.

[4]PW9 testified that the first appellant came almost everyday to his drink stall at Kluang, Station Bus Kluang. For the past one and half months, the first appellant brought along the second appellant on these visits. Thus PW9 said that he knew the second appellant only about one and half months prior to the incident. The said incident will be elaborated upon shortly.

[5]According to PW9 the deceased was not known to him.

[6]On 18 December 2002 at about 2am both the appellants came to his stall to seek PW9’s assistance to recover money from the deceased for their share in the sale of a stolen television in which the total amount was with the deceased.

[7]PW9 was told by the appellants that he will be rewarded in cash for his services.

[8]The second appellant then informed PW9 that he wanted to telephone the deceased to go over to PW9’s residential area that is Taman Harmoni, Kluang. In actual fact, this is only a ploy for the deceased to meet them at a place earlier suggested by the first appellant, on the pretext of asking the deceased to help retrieve them some stolen television sets which they said they had hidden in the area.

[9]About ten minutes later, the deceased came in a car bearing registration car No JGL 8059. One Norazafazila bt Mohd Din testified that the said car was registered under her name and was used by the deceased who was her husband.

[10]Upon the arrival of the deceased at PW9’s stall, all four of them proceeded to Taman Harmoni. The deceased drove the car with the first appellant sitting beside him, while the second appellant sat behind the driver (ie the deceased), whilst PW9 sat behind the second appellant.

[11]They arrived at the spot as seen in photograph P26(11) and (12) as stated by PW9.

[12]The first and second appellants and PW9 then went out of the car pretending to look for the stolen computers whilst the deceased remained in the car. The second appellant and PW9 waited on top of the cliff whilst the first appellant walked down the cliff, on the pretext of looking for the stolen computers. The second appellant then asked PW9 to ask the deceased to come out of the car on the pretext of asking him to help carry the heavy computer. PW9 did as he was told.

[13]The deceased then alighted from the car and rested behind the car bonnet. PW9 proceeded to inform him that in actual fact the tale they spinned about the stolen computers was fabricated; that the real reason he was brought to the scene was to ask him to give the appellants share of selling the stolen television set. At that time, PW9 testified that he was standing beside the deceased who was on his right side whilst his hand held the deceased’s shoulder. The deceased did not say anything. The first appellant was standing about 5-8 feet in front of PW9. PW9 said