1. ) XXXX 2. ) DINESWARAN A/L SIVALINGAM v Pendakwa Raya

Case Significance

Illustrates the appellate reduction of a murder conviction to culpable homicide under section 304(a) read with section 34 of the Penal Code and the uniform treatment of co-accused whose liability turns on a shared common intention.

This Court of Appeal decision at Putrajaya concerns two co-appellants whose appeals against a murder conviction were heard together with those of three other accused arising from the same incident, the death of a man found unconscious and injured. The two appellants in this appeal had, with the others, been convicted and sentenced in the High Court after the deceased was discovered, the investigating officer and forensic personnel attended, the body was identified and a post-mortem was carried out, and the arrests followed. On appeal the court re-examined the whole of the evidence and the proper characterisation of the offence, focusing on the operation of common intention under section 34 of the Penal Code, which allows an act done by one participant in furtherance of a shared intention to be attributed to the others jointly charged. Having weighed the facts, the public interest and the mitigation advanced by counsel on behalf of the appellants, the court was satisfied that the killing was properly to be treated 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 sentenced each of the accused, including the two appellants in this appeal, to twelve years' imprisonment from the date of arrest on 17 August 2017, holding that the sentence was in tandem with the current trend of sentencing. Because the liability of the co-accused rested on common intention, the substituted conviction and sentence applied uniformly across all five, including these two appellants. The judgment is a useful illustration of the appellate reduction of a murder conviction to culpable homicide and of the uniform treatment of co-accused whose liability turns on a shared common intention.