JUDGMENT

Mohamed Apandi Ali J:

Introduction

[1] This is a case where two criminal trials were jointly tried, namely Kuantan High Court Criminal Trial No: 45-(46)-3-2004 and Kuantan High Court Criminal Trial No: 45-(46)-7-2004, hereinafter for ease of reference is referred to as Case No. 1 and Case No. 2 respectively. In Case No. 1, seven accused persons were charged for murder, under s. 302 of the Penal Code and read together with s. 35 of the Penal Code , whereas in Case No. 2, four accused persons were charged for causing grievous hurt under s. 325 of the Penal Code and read together with s. 35 of the Penal Code . All the accused persons in both cases are prison officers and personnels from Penor Prison in Kuantan.

[2] In the course of the joint trial, there were three substantive decisions that gave birth to the three appeals in these cases. The three decisions and consequential appeals are:

(a) Decision to give consent by the Court for the offence, under s. 325 of the Penal Code to be compounded. This is in respect of Case No. 2 only and the appeal is by the Public Prosecutor. The offence was compounded under the provisions of s. 260(2) of the Criminal Procedure Code .

(b) Decision of no case to answer in respect of accused No. 2, 3, 4, 5 and 7 in Case No. 1, and the appeal is also by the Public Prosecutor; and lastly,

(c) the conviction and sentence of the first accused person at the end the trial in Case No. 1 for murder under s. 302 of the Penal Code . The appeal is by the accused and convicted person.

[3] As there are three separate appeals, I shall give my reasons in respect of the above said decisions in their respective order of events and as listed above.

Compounding Of Offence Under s. 260(2) CPC

[4] During the initial stages of the joint trial, namely after the prosecution has completed with their second witness, it was brought to the attention of the Court by the defence counsel in Case No. 2 that all the four accused persons (in Case No. 2) has agreed with counsel holding watching brief for the deceased person's family, to have their offences compounded under the provision of s. 260 of the Criminal Procedure Code .

[5] After hearing submissions from all the learned defence counsels in Case No. 2, the learned Deputy Public Prosecutor and the watching brief counsel, I gave consent for the offence to be compounded and consequential to that composition, the four accused persons in Case No. 2 were acquitted and discharged. This decision and order was made on 17 August 2004.

[6] The Public Prosecutor was not happy with the said granting of the consent and filed the notice of appeal on 1 September 2004. The notice of appeal was filed late. Upon realising that the notice of appeal was filed out of time, the Public Prosecutor then filed a motion in the Court of Appeal vide Application No. C-07-7-2004 for extention of time to file the notice of appeal. The Court of Appeal allowed the motion on 1 November 2004 and ordered that the Public Prosecutor be given 14 days from that date to file the notice of appeal. From the records in Kuantan High Court, no fresh or new notice of appeal was ever filed pursuant to the Court of Appeal's decision on the motion for extension of time given on 1 November 2004.

[7] Acknowledging that it is not for me to dwell into the validity or otherwise of this particular appeal, vis-a-vis the notice of appeal that was still dated prior to the Court of Appeal's decision to grant extention of time to file notice of appeal, I shall nevertheless give my grounds of judgment pertaining to the compounding of the offence, which is the bone of contention in this particular appeal.

[8] Offences under the Penal Code that can be compounded are as encompassed under the provisions of s. 260 of the Criminal Procedure Code . Section 260 of the CPC reads as follows:

Compounding offences

260. (1) The offences punishable under the Penal Code described in the first two columns of Part A may, when no prosecution for such offence