KOTA KINABALU: The Federal Court here yesterday set today (December 4) to deliver its decision on an appeal by three local men convicted by the Court of Appeal on a joint charge of murdering a man 11 years ago at a 7-Eleven shop in Donggongon Town, Penampang.
Justices Tan Sri Dato’ Seri Raus Sharif, Tan Sri Dato’ Seri Zulkefli Ahmad Makinudin, Tan Sri Datuk Seri Panglima Richard Malanjum, Tan Sri Abdull Hamid Embong and Dato’ Jeffrey Tan Kok Wha decided on the date after hearing arguments from the appellants, Duis Akim, 40, Vincent Gisup, 40, and Hendry Motutud, 34, who were defended by counsels Ram Singh, Yunof Maringking and Datuk Chau Chin Tang respectively, and the prosecution.
Earlier, deputy public prosecutor Awang Armadajaya Awang Mahmud submitted that the Court of Appeal had overturned the High Court’s decision to acquit and discharge the trio as it found that the plea of alibi was not raised properly and had failed to raise a reasonable doubt in the prosecution’s case.
He also submitted that on the establishment of the defence of alibi, the burden was on the defence and the quantum was on the balance of probabilities.
Awang Armadajaya said that once the defence of alibi had been established, the trial court must further evaluate the evidence and see whether it did raise a reasonable doubt.
He argued that the facts the defence seek to establish were that the appellants were never at the place of the incident and that they could not have been reasonably expected to commit the offence of robbery and murder.
He contended that assuming for the sake of argument that the defence’s testimony were accepted (which they said was factually not very accurate), the issue that they were never at the 7-Eleven shop in Donggongon Town, Penampang could not be established as they had admitted to being present.
Awang Armadajaya prayed for the appeal to be dismissed and the convictions and death sentence by the Court of Appeal to be reaffirmed.
In reply, Ram submitted that the learned trial judge had evaluated the testimonies of the three appellants and decided that their testimonies were not inherently incredible and were corroborated by prosecution witnesses (16, 17 and 18).
Maringking submitted that the Court of Appeal had erred in law by failing to consider properly or that the evidence adduced by the appellants had created reasonable doubt on the prosecution’s case, thus there was no misdirection on part of the learned trial judge in law by giving the appellants the benefit of doubt.
On Jan 11 this year, the Court of Appeal here sentenced Duis, Vincent and Hendry to death after finding them guilty on a joint charge of murdering one Welfred Thomas, 34, at the 7-Eleven shop in Donggongon Town, Penampang at 2 am on May 26, 2001.
They were convicted under Section 302 of the Penal Code which carries the mandatory death sentence, upon conviction.
On July 10, 2007, the High Court here acquitted and discharged the three appellants from the charge of murdering Wilfred at the same time and place.