Jeffrey Tan J:

[1] Out of the blue, in the midst of the murder trial, the learned deputy prosecutor (Ahmad Zubir bin Jantan) tendered an alternative charge (P7), that was then read and explained to all three accused, who then pleaded guilty to the following offence:

Bahawa kamu bersama-sama seorang lagi yang masih bebas, pada 1 November 1999 jam lebih kurang 8.00 hingga 9.05 malam di sebuah warung makan di Jalan Sisi, dalam daerah Muar, di dalam Negeri Johor Darul Takzim, dengan memajukan niat bersama telah menyebabkan kematian R SELVAM A/L RAMAN (K/P NO: 770112-01-7239) dengan niat menyebabkan kecederaan tubuh badan yang boleh membawa kematian. Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah s 304(a) Kanun Keseksaan.

[2] And after the statement of facts of the case (P8) that the learned DPP presented was read and explained to them, all three accused admitted the following: (a) at about 9.00pm. on 1 November 1999, the complainant was informed that his brother, the deceased, was attacked by several persons, (b) the complainant found the deceased in a critical state at the district hospital, (c) meantime, the 1st accused was apprehended at the scene by two members of the public and was handed to the police, while the 2nd accused was arrested on 3 November 1999 and the 3rd accused was arrested on 23 December 2001, (d) the deceased was attacked with a knife and an axe by the 1st and 3rd accused, (e) nearby the scene was the 2nd accused who had promised the 1st and 3rd accused that he (2nd accused) would join their gang if they (1st and 3rd accused) would avenge the assault on him (2nd accused) by the deceased, (f) it was the common intention of all to cause such bodily injury as is likely to cause death, (g) the deceased died on 17 November 1999.

[3] Pertinent to the facts of the case, the learned DPP also tendered the scabbard of a knife (P9), and an axe (P10).

[4] Being satisfied that all three accused fully understood the nature and consequences of their plea and as well admitted without any qualification the alleged charge against them, and that the alleged offence had been disclosed, the court accepted the plea of guilt and recorded a conviction against them.

[5] But before that, during the murder trial, a Government pathologist (PW3 - Dr Shahidan bin Mohd Noor) had testified that on 18 November 1999 he conducted the post-mortem on the deceased. PW3 testified that he found multiple incised wounds on the hands, forearm, calves, thighs, and back of the accused (see pp 19 - 20 of the notes of proceedings). Those wounds had healed to a certain extent. There were bloodstained fluids in the chest cavity. Death was caused by septicaemia. Germs had invaded the blood stream through the wounds. The deceased was discharged on 6 November 1999 but was readmitted on 8 November 1999. Those wounds would not have been sufficient to cause death in the ordinary course of nature without septicaemia. And other prosecution witnesses had tendered five photographs of the scene - P4 (1-5), 1 photograph of the said axe, and eight photographs of the deceased - P6 (1-8).

[6] Miss Wendy Ooi for OKT1 mitigated as follows. OKT1 was a first offender who was 19 years old at the material time. When he was 11, he lost his mother, and when he was 15, his father, a fisherman, remarried. He was a mosaic worker He was educated up to the primary school level. It was more of gang fight, as all three accused were from the same gang. It was a moment of folly. The wounds were inflicted on the limbs and not on the vital parts of the body. The intention was not to kill. The intention was to cause injury. The 1st accused held the said axe. Miss Ooi asked for a lenient sentence.

[7] Mr Chelvarajan R Suppiah for OKT2 said that his client was a 16 years old Form 3 student at the material time. OKT2 was about to be promoted to Form 4. At the Lower School Examination, OKT2 obtained 3 As, 2 Bs, 1 C, and 1 D. He was a school prefect. His father