JUDGMENT

Ong CJ:

The appellants were tried in the High Court at Penang before a special jury on a charge of murder as follows:

That you jointly with one other still at large on 2 October 1971 at about 10.10 p.m. at premises No. 3963, Heng Choon Thian Road, in the District of Butterworth, in the State of Penang, in furtherance of a common intention of all, committed murder by causing the death of one Chan Khoo Khew (m) and that you have thereby committed an offence punishable under s. 302 read with s. 34 of the Penal Code.

The jury returned an unanimous verdict of guilty against both appellants and they were sentenced to death. They both appealed against such conviction.

The offence alleged arose in the course of an attempted armed robbery when three men raided a goldsmith's shop. They met with resistance by the goldsmith, and in the course of the struggle and shooting it would appear that one of his assailants was so severely injured somehow in the leg that this man was seen limping and had to be supported by a comrade of his to make his escape. To overpower the goldsmith the intruders shot him four times and also struck his head so forcibly as to cause a fracture of his skull. One of the shots penetrated his brain and was the immediate cause of his death. The skull fracture, according to the medical evidence, would also have been fatal. A second shot fired at close range passed through his left cheek; the third, also from close range, entered his abdomen, and the fourth was fired into his chest. Before leaving, one of the intruders snatched a gold chain from the goldsmith's wife and then shot the defenceless woman in the abdomen.

Four shells and one slug were recovered from the house that night by the police. They were of .25 calibre. Two of the three slugs recovered in an autopsy on the goldsmith and the slug removed in an operation on the wife were all of .25 calibre. The other slug recovered from the goldsmith was of .22 calibre.

The inference to be drawn - as the learned trial Judge pointed out to the jury - was obvious, that the person who was armed with the .25 weapon fired at both the goldsmith and his wife. It further meant that another person using a 22 firearm also shot the goldsmith. A toy-pistol was recovered from the house. As two of the trio must have carried genuine loaded firearms, the third man must have carried the toy-pistol.

The goldsmith's wife failed to identify either of the appellants. But a near-by kuay-teow seller (PW10) and a neighbour of the deceased (PW11) positively identified the first appellant as the person leaving the house after the shooting with a pronounced limp requiring him to be assisted by another person across the road to their waiting car. The same kuay-teow seller also identified the second appellant as the driver, although the neighbour was unable to do so. As for the identification parades, we agree entirely with the trial Judge that there was no doubt as to their propriety and that the police officer who conducted the parade at the hospital in which first appellant was identified, deserved high commendation for the manner he arranged it, which was beyond criticism. Apart from the identification of both appellants, there was clear evidence of the second appellant having, prior to the incident, hired a car of similar make and colour to the one used by the gang which was seen by both the kuay-teow seller and neighbour when it was driven away. This car was recognised as an identical vehicle by the same two witnesses and there was evidence that it was returned to the hirer by the second accused on the day after the event.

The next relevant witness was one Saw Hung Song, a farmer, who stated that, at about 11 p.m. on the night of the robbery, and shortly after the event, the second appellant, who was his friend, brought the first appellant and a third man for whom he sought shelter. Saw had not previously known these two others. The next morning, the third person departed, leavi