KOTA KINABALU: Three local men lost in their appeal against the death penalty for killing a 7-Eleven convenience store sale assistant in Penampang when the Federal Court here upheld their sentence yesterday.
Tan Sri Md Raus Sharif, who sat together with Tan Sri Seri Zulkefli Ahmad, Tan Sri Richard Malanjum, Tan Sri Abdull Hamid Embong and Dato’ Jeffrey Tan Kok Wha unanimously affirmed the death sentence imposed on Duis Akim, 41, Vincent Gisup, 41, and Hendry Motutud, 35, by the Court of Appeal on January 11, 2012.
In their reserved judgement, the judges held that the defence had failed to cast doubt on the prosecution’s case.
Further in dismissing the appeal, they were satisfied that the PW1 (prosecution witness one) had positively identified the appellants who entered the store of the shop.
They ruled that as to the defence alibi raised by Duis and Vincent it could not revive against the positive identification by PW1 and therefore their defence of alibi collapsed.
They also said that Hendry did not serve any notice of alibi and his defence became bare denial.
The judges held that the defence’s alibi could not be accepted as the truth without considering other factors, the issue as to the positive question of the time did not necessary mean the appellants were not at the vicinity of the shop.
They then said there were evidence to show conflicting of time as to what time Duis and Vincent reached home and such conflicting of time could not stand on the following reasons, among others; DW1 (defence witness one) opened the door of their house, there was no indication that she has to be at the door, the appellants did not know who was at the door but saw the television was still on, DW2 had selected memories and she could not remember the time but agreed her bed time was 11pm to midnight.
Duis from Tamparuli, Vincent from Tuaran and Hendry from Pitas were accused of murdering Wilfred Thomas, 23, at the 24-hour outlet of 7-Eleven convenience store at Donggongon in Penampang about 2am on May 26, 2001.
They were convicted under Section 302 of the Penal Code which carries the death penalty by hanging upon conviction.
The appellants looked calm in the dock when the judgement was delivered by Malanjum.
However, soon after the court adjourned, as they were brought out of the dock, their family members as well as the appellants started to cry loudly and hugging each other.
One of the appellants is married. The trio escaped the gallows on July 10, 2007, about six years ago, at the High Court here.
Then the prosecution appealed against their acquittal and the Court of Appeal had reversed the High Court’s decision and convicted them.
During the trial, the prosecution had called 18 witnesses to testify against Duis, Vincent and Hendry, who were at that time defended by counsel Yunof Maringking and Datuk Chau Chin Tang, respectively.
The three appellants were then ordered to enter their defence after the prosecution had proven a prima facie case against them. The defence had called five witnesses.
For this appeal, Duis was represented by counsel Ram Singh while Vincent and Hendry were represented by counsel Maringking and Yong Pei Yii, respectively.
Deputy public prosecutor Afzan Abd Kahar appeared for the respondent.