Gopal Sri Ram JCA:

(1) (delivering judgment of the court)

Preliminary

(2) 1 Hasleza Ishak was 26 years old when she died. She was cut down in the prime of her life. This case concerns the circumstances in which she met her end. The four accused who stand before us as appellants were originally charged with one other, the first accused in the court below for her murder. We will for convenience refer to the appellants as the second, third and fourth and fifth accused respectively. The charges against them were as follows. First, as against the first accused (Mat Saad bin Mat Isa), the second and third accused, under s 302 of the Penal Code read with s 34 of that Code. Second, as against the fourth and fifth accused, under s 302 of the Penal Code read with s 109 of that Code. It is appropriate to mention that at after the trial had commenced and after PW25, the pathologist had given his evidence, the first accused pleaded guilty to a reduced charge of culpable homicide not amounting to murder. He was dealt with and sentenced to 14 years imprisonment. He then gave evidence for the prosecution as PW34. At the close of the case for the prosecution, the learned trial judge ruled that the prosecution had made out a case for the appellants to answer. However, at the close of the whole case, that is to say, after hearing the defence and their witnesses, the learned trial judge amended the charges as follows. As against the second and third accused, a charge under the first limb of s 304 read with s 34 of the Penal Code was preferred. As against the fourth and fifth accused, the learned judge amended the charge to one under s 304 of the Penal Code read with ss 109 and 34 of the Penal Code. The learned judge then proceeded to convict each of the accused on the amended charge and sentenced each of them to 20 years imprisonment. We note that there is no cross appeal by the Public Prosecutor against the learned judge’s decision to convict on the lesser charge.

Issues and arguments

(3) 2 From the prosecution’s point of view, this is a simple and straightforward case. It is common ground that this case turns almost entirely on the evidence of PW34. The evidence of that witness in a nutshell is that he was recruited by the fourth and fifth accused to kill the deceased. He obtained the assistance of the second and third accused for that purpose. Late in the evening of 6 October 2002, PW34, the first and second accused abducted Hasleza, whom we will hereafter refer to as ‘the deceased’. After the abduction, the deceased was taken to another place some distance away where PW34 delivered a ‘karate chop’ or blow to the neck of the deceased to silence her. The deceased was then bundled into the second accused’s car and taken to a bridge where she was cast into a ravine. She was already dead by then. According to the medical evidence, death was caused by asphyxiation, that is to say, pressure being applied to the front of the neck. In other words, the deceased probably died of suffocation through manual strangulation. It is a point to note that throughout the entire episode, that is to say, from the moment of the deceased’s abduction up to and after her body had been disposed of, the second accused drove his car which was used to transport the deceased, both when she was alive and after she had died. For completeness we would add that sometime later, the accused were arrested and charged as aforesaid.

(4) 3 Before us the appeal was argued on three main grounds. First, that the learned judge did not judicially appreciate or evaluate the evidence of PW34. Second, that the confession of the second accused had been wrongly admitted and used. Third, that the learned judge had, in so far as the fourth and fifth accused are concerned, failed to give due consideration to the defence of these accused persons. We will deal with these complaints in a format that we find convenient.

Appreciation of PW34 ’s evidence

(5)

(i) The relevant tes