JUDGMENT

Raja Azlan Shah J:

The appellants who are in their late thirties were charged under s. 392 of the Penal Code read with s. 34 of the Penal Code, to wit. in furtherance of the common intention robbed one Chin Tong Kan of a lorry registration number BL 9776 carrying 188 bags of tin ore valued at $52,000. This involved the existences of a pre-arranged plan which is to be proved from conduct or from circumstances or from any incriminatory facts to commit the crime actually committed, that is, robbery. Robbery is defined under s. 390 of the Penal Code as, inter alia , the causing of wrongful restraint in the commission of theft. It is significant to note that the appellants were never charged with voluntarily causing hurt in committing the robbery under s. 394 of the Penal Code nor with armed robbery under s. 397 of the Penal Code. They were unrepresented in the Court below and each pleaded guilty to the charge.

The record reads as follows:-

Charge read over and explained to all four accused who understand the charge.

First accused - Pleads guilty and UN & C of P* - I accept his plea.

Second accused - Pleads guilty and UN & C of P - I accept his plea.

Third accused - Pleads guilty and UN & C of P - I accept his plea.

Fourth accused - Pleads guilty and UN & C of P - I accept his plea.

The prosecuting officer then proceeded to outline the following facts which were recorded by the learned president:

On 31 January 1967 at about 5.00 p.m. lorry No BL 9776 left Gambang, Pahang, for Kuala Lumpur carrying 188 bags of tin ore valued at $52,000. The lorry was driven by one Chin Tong Kam who had an attendant Leow Soo Sang with him.

At about 11.15 p.m. the lorry crossed the Selangor-Pahang boundary and when it was near the 16th milestone Bentong-Kuala Lumpur Road a taxi, an Austin car No H 4319, overtook the lorry and after travelling a short distance blocked the path of the lorry and forced the lorry to stop.

As soon as the lorry stopped, three male Chinese rushed out, one armed with a pistol and one with a parang. They ordered the driver and attendant out of the lorry, herded them together into a ravine beside the road and tied them with rope and also gagged them.

The Austin taxi was driven by the third accused.

Two other Chinese were left guarding the driver and attendant.

The lorry was driven away and so was the taxi which was later abandoned on the way to Kuala Lumpur.

At about 3.00 a.m. the following morning the two persons who guarded the lorry driver and attendant heard the sound of a car approaching and left the victims behind and went away. A short while later the lorry driver and attendant got a lift and went to Gombak police station where they lodged a report at 3.55 p.m.

Investigation started and as a result of information received a police party led by Supdt Ko Kim Cheng raided a place near Leong Fatt Tin Mine in Serdang where the police recovered 179 bags of the 188 bags of tin ore. The 9 bags are still not recovered 179. bags of ore P2 and lorry No BL 9776, P3. The same day the police arrested the first, second and third accused at Serdang New Village, the forth at Sungei Besi New Village.

The four accused took part in the robbery and the third was the one who drove the taxi which had been stolen on 31 January 1967.

All four accused admit the facts.

Each of the appellants was convicted and sentenced to three years imprisonment. They now appeal against conviction and sentence.

The only substantial ground put forward by Counsel on behalf of the appellants was that the provisions of s. 34 of the Penal Code, which is one of the ingredients of the charge, were never adequately explained to the appellants. It was said that the record must show in what way the charge was explained to the appellants who must admit a pre-arranged plan while proceeding in the taxi. It was further said that the taxi driver could have been an innocent party for there was nothing to show he took part in the robbery. He never admi