KHANTAN A/L NAMASIVAYAM v Pendakwa Raya

Case Significance

Illustrates the appellate substitution of a lesser homicide conviction, setting aside a murder death sentence in favour of culpable homicide under section 304(a) read with section 34 of the Penal Code, with consistent twelve-year sentences across co-accused.

This Court of Appeal decision at Putrajaya arises from the joint trial and conviction of five accused for the death of a man found unconscious and injured, and concerns the appellate re-evaluation of a murder conviction. The appellant in this appeal was among the five who had been convicted and sentenced in the High Court after the deceased was discovered, the scene attended by the investigating officer and forensic personnel, the body identified and a post-mortem carried out, followed by the arrests. On appeal the court reviewed whether the case against the accused sustained a conviction for murder or a lesser offence, examining the evidence as a whole and the application of common intention under section 34 of the Penal Code to acts done by several participants in furtherance of a shared purpose. Taking into account the facts, the public interest and the mitigation advanced by counsel on behalf of the appellants, the court was satisfied that the offence was properly characterised as culpable homicide not amounting to murder rather than murder. It unanimously set aside the death sentence and substituted a conviction under section 299 of the Penal Code, punishable under section 304(a) read together with section 34 of the same Act, and imposed on each of the accused, including this appellant, a term of twelve years' imprisonment running from the date of arrest on 17 August 2017, observing that the sentence accorded with the current trend of sentencing for offences of this nature. The decision reinforces that the appellate court, rather than ordering a retrial, may itself substitute the lesser conviction and pass a determinate sentence where the evidence supports culpable homicide. The judgment is a useful illustration of the appellate court's power to substitute a lesser homicide conviction where the evidence and the interests of justice warrant it, and of the consistent treatment of co-accused convicted on the basis of common intention in a single incident.