Justice Zabariah Yusof, who led a three-member bench, ordered the prison terms of A Saimon, 54, S Sudhakar, 30, J Sivachandran, 36, B Thiyagu, 39, and S Sundramoorthi, 32, to begin from the dates of their arrest between November and December 2014.
Four of the convicts were also ordered to be given 12 strokes of the rotan each. Saimon was spared the whipping on account of his age, as the punishment only applies to those under 50.
Also on the bench that heard their appeal three months ago were Justices Abu Bakar Jais and Abdul Karim Abdul Jalil.
Earlier today, deputy public prosecutor Asmah Musa acknowledged that judges now have a discretion as to the sentencing but urged the court to retain the death penalty handed down by the High Court and affirmed by the Court of Appeal.
“We are suggesting 35 years each for the appellants if the bench is minded to substitute the death penalty with a jail term,” said Asmah, who was assisted by DPP K Roshan.
The prison sentence for murder ranges between 30 and 40 years.
Lawyers representing the appellants urged the bench to impose a custodial sentence as the facts of the case showed that the deceased and members of his gang were responsible for the incident that triggered the crime.
The five men were found guilty of a common intention to murder A Pachaippan @ Arasu at Taman Bukit Bendera, Mentakab in Pahang between 2.30am and 3.30am on Nov 22, 2014.
A forensic pathologist’s report revealed that the death was caused by slash wounds although a motorcycle was thrown on the victim before being set on fire.
The investigating officer had testified that the murder was the result of enmity between Gang 21 and the deceased’s Gang 04.
Earlier, Abu Bakar, who read the court’s broad grounds, said three prosecution witnesses had positively identified the five men in their testimonies.
“The court is also of the view that the identification parade to pick out the suspects during the police investigation was merely corroborative,” he said.
Abu Bakar said there was also no material contradiction between the three prosecution witnesses who witnessed the incident.
“The testimony of one of the three witnesses was sufficient to narrate what transpired at the crime scene,” he said.
However, he added, a recording of the incident made using a mobile phone could not be admitted into evidence as the footage had not been sent for forensic analysis.
The bench also disagreed with the counsel’s submission that the appellants had suffered prejudice as the lawyer who conducted the trial was incompetent.
Paul Krishnaraja, Amy Chong and Goh Chee Kian represented Saimon and Sudhakar at the appeal while Rajesh Nagarajan and Sachpreetraj Singh acted for Sivachandran.
Counsel K Kumaraendran and Yaw Xinying appeared for Thiyagu while Rajpal Singh represented Sundramoorthi.