Syed Othman FJ

This appeal is against the decision of the learned President, Sessions Court at Kelang. On January 2, 1980 he convicted the appellants of 4 charges under section 304 read in conjunction with section 34 of the Penal Code for causing the deaths of (1) Mohd. Amin bin Doyak, (2) Mispan bin Tunut, (3) Suppian bin Ali, and (4) Ahmad Nasiruddin bin Bunyamin. On the 1st charge, the 4th and 5th appellants were sentenced to 18 months' imprisonment and the others 2 years each. On the 2nd, 3rd and 4th charges, the 4th and 5th appellants received 2 years 6 months each on each.

The sentences were to run concurrently.

The Public Prosecutor also appeals against sentences for inadequacy.

The appellants' petition of appeal runs to 57 pages containing 95 main grounds of appeal including 5 relating to sentence. Para 19 lists out 117 particulars alleging findings which are said to be against the weight of evidence or against the drawing of adverse inferences, or which are said to be based on personal conjecture and not on facts proved before the court or the result of illogical arguments. Ground 20 lists out 17 particulars alleging failure to make inferences favourable to the appellants. There are other grounds which list out particulars. The length may be understandable as the grounds of judgment runs to 243 pages, typewritten double-spaced, and the Notes of Evidence runs to 654 pages.

I wish to say from the outset that it must be said that the appeal against the grounds of judgment dwell too much on findings of facts rather than on substantial points of law. It must be made clear that the appellate court has not had the advantage of seeing or hearing the witnesses and unless it can be shown that the trial court has misused its advantage, it is not for the appellate judge to reverse the trial court's findings. In this respect I need only refer to the judgment of Lord Thankerton in Watt or Thomas v Thomas [1947] AC 484 in which he said at p.487:

"Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion;"

I would not therefore deal with the numerous points alleging misdirection of facts which form the bulk of the grounds of appeal. It is sufficient to say that not one of those taken alone or all those taken together would justify me to interfere with the findings of the trial court. Nonetheless I shall go through the salient points of facts and deal with points of law which merit consideration.

From Zubir's account, the attackers, who could only be the appellants, must have surrounded the intruders. According to Corporal Abdul Ghani (PW 3), Letchumanan, later followed by Palanisamy, came to the Police Station, Kerling, at about 3.05 a.m. on 19.8.78 and informed him that 5 males had come to attack the temple, that there was a fight between them and the temple guards, and that the people were surrounded. These statements were first information and are therefore admissible. Corporal Abdul Ghani went to the temple with Letchumanan and Palanisamy. There he saw the 8 appellants and the priest of the temple, Simbulingam. He told them not to leave the place. He also found 5 bodies, 2 in the back seat of the car, 2 on the left side of the road of the temple and one on the right side of the car facing the main road along the temple. The bodies were later removed to the hospital by other police personnel.

Assistant Superintendent of Police (ASP) Jamaluddin (PW 2) arrived at the temple at 3.35 a.m. He questioned the appellants. At first he said everyone replied that they had participated in the fight, but later he said he merely questioned them as a group. In any case,