Ling Han Tsyr and PP

[2019] 1 LNS 1573 Legal Network Series
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IN THE COURT OF APPEAL MALAYSIA
(APPELLATE JURISDICTION)
[CRIMINAL APPEAL NO: Q-05(M)-501-11/2017]
BETWEEN
LING HANG TSYR … APPELLANT
AND
PUBLIC PROSECUTOR … RESPONDENT
[In the Matter of the High Court of Sabah and Sarawak
In the District of Sibu, Sarawak
Criminal Trial No : SBW 45-3/2015
BETWEEN
PUBLIC PROSECUTOR
AND
LING HANG TSYR]
CORAM:
ZABARIAH MOHD YUSOF, JCA
SURAYA OTHMAN, JCA
KAMALUDIN MD SAID, JCA

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JUDGMENT
A. INTRODUCTION
[1] The appellant is charged in the High Court as follows:
“That you together with one person who is still at large namely
Tiong King Guan (IC 861110-52-6121), on 14.6.2012 at about
1.30 am, at house No 1D, Lorong 33A, Ulu Sg Merah, Sibu, in
the district of Sibu, in the State of Sarawak, in furtherance of
common intention, by way of conspiracy, abetted one Ling Hoe
Ing (IC 881018-13-5871), in the commission of murder of one
Wong Jing Kui (IC 810119-13- 5215) which offence was
committed in consequence of your abetment, and that you have
thereby committed an offence punishable under section 109 and
302 of the Penal Code read together with section 34 of the same
code.”
[2] After a full trial, the learned trial Judge in the High Court found
that the prosecution had proved a prima facie case against the
appellant and ordered the appellant to enter her defence. After hearing
the defence case, the learned trial Judge was satisfied that the
prosecution has proved its case beyond reasonable doubt and found
the appellant guilty of an offence under section 302/109 read together
with section 34 of the Penal Code (PC).
[3] Aggrieved by the decision of the learned trial Judge, the
appellant filed an appeal to the Court of Appeal, which is the appeal
before us. After having read the written submissions as well as
hearing oral arguments on the issues raised, and perusing through the
Appeal Records, we informed parties that we would adjourned the
matter for decision on a date to be fixed.

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[4] Having given the appeal our utmost thoughts and consideration,
we have come to a unanimous decision. The following shall be our
decision which shall be the judgment of the court.
B. BACKGROUND
[5] Wong Jing Kui (the deceased) and the appellant are husband and
wife and was married in 2005. Come 2011, there were cracks in the
marriage. Allegations of extramarital affairs against both parties did
not improve the situation. Efforts to go for counseling proved futile
and ultimately both agreed to go for a divorce. However, at the time
of the offence, the parties were still married.
[6] The appellant was alleged to have an affair with Andrew Tiong
King Guan (Andrew). In the case before us, Andrew is charged
together with the appellant in abetting one Ling Hoe Ing (PW 5), by
way of conspiracy to kill the deceased. To date, Andrew is at large.
[7] The facts that led to the charge against the appellant and
Andrew started when Andrew offered PW 9 a deal to kill the deceased
but PW 9 declined. He then went to PW10 and PW11 but they too, had
no intention to kill anyone. However, PW 10 and PW 11 were each
paid RM 1000 to ensure that they do not spill the beans to anyone
about the deal. They then introduced Andrew to PW 5 who had a
serious gambling debt and extremely desperate to pay off his debt.
[8] PW 5 took the deal as Andrew promised to pay him if he
successfully kill the deceased and this would help him settled his
debt. In pursuing to kill the deceased on 14.6.2012, PW 5 testified
that he took instructions from Andrew to enter the appellant’s house
through the back door as it was not locked and there was no CCTV
coverage. According to PW 5, he went to the house around 12
midnight on 14.6.2012. PW 5 said he was also instructed by Andrew

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to enter the master bedroom and once there, he stabbed the deceased
with a knife, who was sleeping on a mattress on the floor. After
completing his task, he then went out of the house and informed
Andrew that his instructions had been executed.
[9] Not believing the information, Andrew went back to the scene
with PW 5 but saw that the police and ambulance were already there.
[10] Post-mortem reports confirmed that the cause of death was a
result of stab wounds to the neck and chest of the deceased.
[11] PW 5 was arrested by the police subsequently.
The Charge
[12] Initially, PW 5, Andrew and the appellant were altogether
charged under section 302 of the Penal Code (PC) read with section
34 of the same. However, pursuant to a letter of representation by PW
5 to the Attorney General’s Chambers, the prosecution on 1.10.2013
offered PW 5 an alternative charge under section 304 (a) PC which
reads:
“That you, on the 14th
June 2012 at about 1.30 a.m., at
house No 1D, Lorong 33A, Ulu Sg Merah, Sibu, in the
district of Sibu, in the State of Sarawak, based on the
instigation by Tiong King Guan (861110-52-6121) and
based on the conspiracy between Tiong King Guan
(861110-52-6121) and Ling Hang Tsyr (810508-13-5278)
to commit murder against Wong Jing Kui (8101110-13-
5215) caused the death of Wong Jing Kui (8101110-13-
5215), with the intention of causing death and that you
have thereby committed an offence of culpable homicide
not amounting to murder punishable under section 304(a)
of the Penal Code.”

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[13] PW 5 pleaded guilty to the alternative charge and was sentenced
to 16 years imprisonment by the learned High Court Judge.
[14] Subsequently, counsel for Andrew and the appellant applied for
the learned presiding Judge, Supang Lian J to recuse herself from
hearing the trial of Andrew and the appellant, which Her Ladyship
did.
[15] The conduct of the trial was subsequently taken over by
Azhahari Kamal Ramli, JC. At the outset of the proceedings before
the learned JC, counsel for Andrew and the appellant raised a
preliminary objection premised on the ground that as PW 5 was no
longer charged under section 302 PC, the charge against Andrew and
the appellant for abetting him in the murder was unsustainable in law.
The learned JC was urged to quash the charge against Andrew and the
appellant. The learned JC allowed the preliminary objection and ruled
that the charge of abetment of murder as it stood, was “defective,
unsustainable and prejudicial”. It was also ordered that both Andrew
and the appellant to be discharged not amounting to acquittal of the
charge of abetment of murder. The learned JC said that the
prosecution was at liberty to consider amending the charge against
Andrew and the appellant.
[16] Taking the cue from what was stated by the learned JC, the
prosecution on the same day amended and preferred a charge under
section 304 (a) PC against Andrew and the appellant in the Sessions
Court, which reads as follows:
“That you jointly, on 14th
June 2012 at about 1.30 a.m., at
house No 1D, Lorong 33A, Ulu Sg Merah, Sibu, in the
district of Sibu, in the State of Sarawak, by way of
conspiracy abetted one LING HOE ING (881018-13-5871)
in the commission of culpable homicide not amounting to
murder of one WONG JUI KUI (810119-13-5215), which

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offence was committed in consequence of your abetment
and that you have thereby committed an offence
punishable under section 109 and section 304(a) of the
Penal Code.”
[17] Both Andrew and the appellant claimed trial to the charge above
and the learned Sessions Court Judge fixed the case for trial. However
on the first day of trial on 8.9.2014, the prosecution reverted to the
original charge of abetting PW 5 in the murder of the deceased. The
charge then reads:
“That you, on 14.6.2012 at about 1.30 am, at house No 1D,
Lorong 33A, Ulu Sg Merah, Sibu, in the district of Sibu, in
the State of Sarawak, in furtherance of the common
intention of you all, by way of conspiracy, abetted one
Ling Hoe Ing (IC 881018-13-5871), in the commission of
murder of one Wong Jing Kui (IC 810119-13-5215) which
offence was committed in consequence of your abetment,
and that you have thereby committed an offence
punishable under section 109 and 302 of the Penal Code
read together with section 34 of the same code.”
[18] Before the Sessions Court Judge, the prosecution applied for the
case to be transmitted to the High Court pursuant to section 177A of
the Criminal Procedure Code (CPC). Again counsel for Andrew and
the appellant raised a preliminary objection on the ground that the
charge was “mala fide, oppressive and an abuse of court process.” The
arguments were a re-hatched of the issues raised before the learned JC
earlier. The Sessions Court Judge upheld the objection by counsel and
ordered that Andrew and the appellant be discharged not amounting to
an acquittal and agreed with both counsel that the reversion by the
prosecution to the original charge against Andrew and the appellant
was an abuse of process after the same had been quashed by the

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learned JC on 26.2.2014. The Sessions Court Judge went on to say
that what the prosecution did tantamount to contempt of court. As a
result of the order by the Sessions Court, the charge was extinguished
and both Andrew and the appellant were freed without any condition.
[19] Aggrieved by the order of the Sessions Court Judge, the
prosecution applied to the High Court for a revision seeking for the
order of the Sessions Court Judge to be set aside and for the High
Court to proceed with the case in accordance with section 177A of the
CPC. The learned High Court Judge, Lee Heng Cheong J refused the
application by the prosecution and ordered for the case to be sent back
to the Sessions Court with an order that the trial for the charge under
section 304(a) read with section 109 of the PC or “such appropriate
charges” to proceed before another Sessions Court Judge. Pending the
hearing of the case in the Sessions Court, Lee Heng Cheong J, ordered
that Andrew and the appellant to be released on bail on the same
terms and conditions as those granted by the Sessions Court in the
earlier proceedings.
[20] The prosecution appealed against the decision of Lee Heng
Cheong J to the Court of Appeal. At the hearing in the Court of
Appeal on 10.2.2015, Andrew failed to turn up. In fact, he was also
absent when the prosecution’s application for revision came up for
hearing before the learned High Court Judge on 23.10.2014. The
learned counsel had no serious objection if the Court were to proceed
with the hearing of the appeal in the absence of Andrew as the matter
involved pure questions of law and that it be placed on record that no
adverse order be made against Andrew. The Court of Appeal decided
to proceed with the hearing of the appeal in the absence of Andrew.
The Court of Appeal allowed the appeal by the PP and remitted the
case back to the Sibu High Court for trial under section 302 PC before
another Judge.

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(The judgment of the Court of Appeal is reflected in PP v. Tiong King
Guan & Ling Hang Tsyr [2015] 4 MLJ 235)
The appellant was ordered to be remanded pending the disposal of the
case as the offence is non bailable and a warrant of arrest was issued
against Andrew.
[21] Essentially, that is the factual matrix that led to the hearing
which proceeded with the appellant facing the charge alone in the
Sibu High Court, which had convicted and sentenced the appellant for
conspiring with Andrew, and in furtherance of their common
intention, abetted PW 5 in committing murder of the deceased, under
section 302 of the PC, which led to the appeal before us.
C. FINDINGS OF THE HIGH COURT AT THE END OF THE
PROSECUTION’S CASE
[22] The learned trial Judge found that there was no direct
involvement between the appellant and PW 5 in this case. The case
was constructed premised on circumstantial evidence (grounds of
judgment at page 22 RR Jilid 1).
[23] The learned trial Judge found that there are circumstantial
evidences that link the appellant to the crime, namely:
(i) There was no sign of any break in of the house by any
intruder:
It was suggested by the defence that on the night of the
murder, there was a robbery and an intruder came into the
house and into the bedroom. PW13, the mother of the
deceased, in her testimony said that in the early morning
right after the murder, when she went to the house of the
deceased, she said the sliding door at the back of the house

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was unlocked. Her evidence was supported by the evidence
of PW 21, the investigating officer who said that the door
was devoid of any signs of a break in when he arrived at
the crime scene in the early morning of 14.6.2012.
(ii) PW 5 knew where and how to enter the house of the
deceased:
From the testimony of PW 5, he was hired by Andrew to
kill the deceased. PW 5 said that Andrew had instructed
him via SMS/text messages to enter the house through the
back door that was unlocked and has no CCTV coverage. It
was the finding of the learned trial Judge that these
information, namely the back door that was left unlocked
and has no CCTV coverage, the master bedroom was not
locked and the deceased would be sleeping on the mattress
on the floor, must have been told by someone in the house
and that person was no other than the appellant herself,
who told Andrew, who then informed PW 5.
(iii) Andrew knew the details:
The appellant and Andrew were close as stated by PW 16
and PW 17 in their testimonies. PW 16 in his evidence also
said there was one occasion he saw the appellant and
Andrew kissing when they were having some get together
at the house whilst the deceased was away. It was the
finding of the learned trial Judge that this “clearly shows
that they were lovers and only lovers will share private and
personal details”.
There was also evidence from PW 13, the mother of the
deceased, who said that Andrew’s car was seen parked
outside the house from late night to early morning when

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the deceased was not at home. There was also evidence
that Andrew and a couple of friends had spent the night in
the house when the deceased was not at home.
It was in evidence by PW 5 that he knew all the details in
the house from Andrew. It was the finding of the learned
trial Judge that Andrew must have known the whereabouts
of the deceased from the appellant. If the appellant did not
reveal the deceased’s whereabouts, Andrew would not
know those details. Hence PW 5 would not be able to do
the job as smooth as what he did in this case.
(iv) Active communication by phone between Andrew and PW
5 and Andrew and the appellant before and after the
murder:
The call logs in exhibits P 84 and P 85 between Andrew
and the appellant and between Andrew and PW 5 are very
much telling. A day before the murder, Andrew contacted
the appellant 16 times while PW 5 contacted Andrew 18
times. A few minutes before the crime took place, the calls
heightened when Andrew contacted the appellant 18 times
while PW 5 contacted Andrew 10 times. The appellant also
contacted Andrew 20 times just before and immediately
after the murder. This shows that the three were in contact
through hand phones with Andrew acting as an
intermediary. The common denominator between the
appellant and PW 5 is Andrew. This is the evidence of
common intention between the 3 of them i.e. to kill the
deceased.
(v) The appellant had motive to have the deceased killed i.e.
the impending divorce case and the insurance policies.

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The testimony of PW 21, the investigation officer said that
there was a pending divorce case in court and the deceased
wanted to seek custody of the child but the appellant
refused. The appellant was also financially dependent on
the deceased. The appellant was at risk of losing
everything in the divorce, as she would not be able to hold
on to the house and the car as she could not pay the
monthly installments if the divorce is to go through.
There was the insurance policies taken out by the deceased
where the appellant was made the beneficiary. PW 21, PW
22 and PW18 testified that the appellant was the
beneficiary to a few insurance policies bought by the
husband. One of the policies had lapsed, whilst in another
policy, the deceased had changed the beneficiary from the
appellant to PW13, the mother of the deceased, without the
knowledge of the appellant. The appellant also made a
claim to one of the insurance policy after the death of the
deceased, but it was put on hold pending the outcome of
the murder trial. This corroborates PW 5’s testimony that
after the murder of the deceased, Andrew told him to wait
for his payment after the insurance claim (page 118 of RR
Jilid 1 of the notes of proceedings).
[24] It is not disputed that PW 5 committed the act of causing the
death of the deceased. It is the prosecution’s case that the appellant
and Andrew, in furtherance of their common intention, by way of
conspiracy, abetted PW 5, in the commission of murder of the
deceased.
[25] It was the contention of the defence that at the time when PW 5
came into the bedroom, she was already asleep. The defence
suggested that the deceased was the last person to have used the

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bathroom downstairs and it was the deceased who had forgotten to
lock the back door downstairs. The learned trial Judge rejected this
suggestion by the appellant, as the call and SMS logs as per exhibits P
84 and P 85 on the night of the murder indicated that the appellant
was very much awake minutes to the murder. PW 8, the medical
assistant, who arrived at the scene of the crime on 14.6.2012 at 2.05
a.m., testified that the deceased died more than an hour but less than 2
hours when they arrived. The learned trial Judge held that taking into
account the time when PW 8 arrived at the crime scene, the learned
trial Judge held that it is safe to say that the victim had died between
12.00 a.m. – 1.00 a.m. This would mean that at that time the appellant
was awake and was in contact with Andrew, as the last
communication from the appellant’s hand phone to Andrew was at
1.21 a.m.
[26] Based on the circumstantial evidence, the learned trial Judge
held that there was a conspiracy to murder the deceased and in
furtherance of their common intention, both the appellant and Andrew
had abetted PW 5 in the commission of the murder. Evidence shows
that, from the beginning Andrew was searching for someone to kill
the deceased. Andrew and the deceased had no business relations
together thus there was no reason for Andrew to kill him. Andrew is
not known to the circle of friends of the deceased or the deceased’s
family. The learned trial Judge said that “The only connections (sic)
that put the pieces together are the accused and only the accused that
has connection with Andrew and has reason to do so”.
[27] Thus, the learned trial Judge held that the Prosecution had
succeeded in proving a prima facie case against the appellant under
Section 109 and 302 of the Penal Code read together with section 34
of the same, and ordered the appellant to enter her defence.

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The Defence
[28] The appellant gave evidence on oath and testified that she joined
EON Bank as a Credit Recovery Clerk. Her job scope was to make
calls to account holders who are late in payment or behind schedule
and gave instructions to lawyers to issue notice of demand. She
testified that her marriage with the deceased was having problems due
to the deceased’s drinking habit and entertaining clients until late at
night. The problems were unresolved until the deceased insisted for a
divorce. Efforts to reconcile their differences proved futile and
ultimately both agreed to go for a divorce.
[29] The appellant maintained that her relationship with Andrew was
only as friends and would never allowed herself be seen with him
alone.
[30] On 13.6.2012 before the day of the murder, she was doing her
usual errands and reached home at 8.30 p.m. before preparing for bed
at 10 p.m. She did call Andrew to remind him of his car installment.
Before she went to bed that night she charged her hand phone and
placed the hand phone under her bed as the cable wire was not long
enough to put it on the cabinet near the bed. She denied
communicating with Andrew minutes before the murder and alleged
that it must have been her husband who has always been suspicious of
her. It had happened before when her husband used to call her male
colleagues using her hand phone and warned them.
[31] The appellant said that it was her normal routine to lock the
sliding door downstairs before going to bed but the deceased also has
the habit of having his shower at the toilet downstairs. There were a
few occasions when the deceased forgot to lock the sliding door
because he was too drunk when he comes back late at night.

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[32] On the night in question, she was asleep with her son on the bed
in the master bedroom when she was awakened by a loud shout from
the deceased. She then saw 2 figures in the room. She was scared and
cuddled her son. Her son tried to call out to the deceased but she held
him under the blanket for fear of being attacked. After she heard the
door closed, she was shocked to see the deceased covered in blood.
She called for her in-laws’ help and tried to keep the deceased alert
while waiting for the ambulance. The medical assistant (PW 8) came
and went in to check the deceased and then told her he was dead.
[33] Since the deceased’s death, her house and car had been
repossessed and she denied that she benefitted from the deceased’s
death. She also denied submitting for the insurance claim right after
the murder.
[34] DW 2, the appellant’s father testified that he gave the appellant
RM30,000.00 for the down payment of the house. He was also aware
of the problem in his daughter’s marriage to the deceased but denied
knowing about Andrew.
Evaluation and findings by the learned trial Judge at the end of the
defence’s case
[35] The learned trial Judge did not find in favor of the appellant
when the appellant maintained that she and Andrew were just friends.
Instead the learned trial Judge found that the testimonies of PW 16,
PW 13, PW 17 and call logs of the phone communications in P 84 and
P 85 proved otherwise, that they were indeed having an affair. The
frequency of the calls between the appellant and Andrew point to the
fact that this was not the normal customer and banker relationship as
was contended by the appellant, but more than that. The messages and
phone calls before and after the murder could not be made by the
deceased as suggested by the defence. If the evidence of the appellant

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is to be believed that it was the deceased who used the appellant’s
hand phone and replied to Andrew’s SMS between 12.40 a.m. -1.21
a.m., then the deceased would not be sleeping when PW 5 entered the
master bedroom between 12.00 a.m. – 1.00 a.m. and thus would have
been aware of PW 5’s entering the room. This would then contradict
with the evidence of PW 5 who said that he came to the house about
12.00 a.m. to 1.00 a.m., when he saw the deceased sleeping on the
mattress on the floor. The learned trial Judge found that the evidence
of PW 5 was supported by the evidence of PW 8, the medical assistant
who testified that the body was already in a state of rigor mortis when
he arrived at the crime scene, i.e. he died more than an hour but less
than 2 hours. Based on these evidence the learned trial Judge found it
is safe to infer that the murder took place between 12.00 a.m. - 1.00
a.m. on 14.6.2012. The learned Judge held that if the murder took
place after 1.21 a.m. (which is the last call recorded by the appellant’s
phone to Andrew according to P 84) there would be no sign of rigor
mortis as PW 8 arrived at the crime scene at 2.05 a.m. (which is 40
minutes after 1.21 a.m., assuming that the time of death is 1.21 a.m.).
Therefore, it could not be the deceased who replied to the text
messages or made any calls during those times; it should be none
other than the appellant herself. Thus, the learned trial Judge
concluded and held that it is safe to infer that the appellant was
involved with the plan to murder the deceased.
[36] With regards to the agreement between the appellant and
Andrew although there was no direct evidence to prove as such, the
learned trial Judge relied on the evidence of PW 5 who told the court
that Andrew told him that he (Andrew) received a message from the
appellant that the bedroom door was not locked. PW 5 also said that
Andrew had hired him to kill the deceased. The active communication
between the appellant and Andrew on the night of the murder just
before and after the incident are evidence of agreement between the

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appellant and Andrew, as evidenced by the call logs in exhibits P 84
and P 85. The evidence of PW 5 was not challenged by the defence
throughout the case (refer to page 42 of RR Jilid 1 of the grounds of
judgment).
[37] The learned trial Judge held that there were motives for the
murder of the deceased. The deceased wanted a divorce. The appellant
depended on the deceased financially and the divorce would result in
the appellant losing whatever privileges that she had enjoyed during
the marriage. Thus, the murder plan was hatched after the deceased
decided to proceed with the divorce. There were also some insurance
policies which the deceased had taken whereby the appellant stood to
gain upon the demise of the deceased.
[38] The appellant claimed that she paid for the down payment of the
house by using the money that her father (DW 2) gave her as a gift
and from the loan that she took, and hence there cannot be financial
motive. However, the learned trial Judge doubted this evidence by the
appellant, as it does not make sense then as to why the appellant need
to sell the house after the death of the deceased. The learned trial
Judge found that there was conflicting testimony by the appellant
when she said that after her arrest the matrimonial home was
repossessed and sold off as there was no one to pay for the housing
installments. Similarly with the car, it was also repossessed as there is
no one to pay for the installments of the loan after she was arrested.
Premised on these evidence it was held by the learned trial Judge that
it is clear that the appellant depended on the deceased financially, and
the appellant could not afford to lose these privileges. The murder
plan was initiated after the deceased decided to proceed with the
divorce. Based on the aforesaid, the learned trial Judge held that there
was financial motive on the part of the appellant to have the deceased
dead.

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[39] The other evidence which the learned trial Judge found militates
against the appellant is the conduct of the appellant immediately after
the deceased had been stabbed by PW 5. After the appellant saw that
the deceased had been stabbed and soaked in blood, she did nothing to
stop the bleeding. Neither did she immediately called the police or
ambulance or run to her neighbor for help but kept talking to the
deceased, gave him moral support and asked him where the pain was,
repeatedly. She also said she was shocked and stunned but at the same
time she can call her colleague and asked for the ambulance number
rather than asking for help. The learned trial judge said in her
judgment “When there was a struggle between the deceased and the
murderer, it is reasonable to feel frightened but when the danger was
no longer there, there was no reason for her not helping the
deceased….”
[40] Premised on the aforementioned, the learned trial Judge held
that the Prosecution has proved its case beyond reasonable doubt. The
Accused was convicted under section 302 of the PC read together with
section 34 and sentenced to death.
D. OUR FINDINGS
[41] The appellant has raised several grounds in her Petition of
Appeal which are mostly repetitious and overlapping, which we have
compressed into the following main points:
(i) The charge against the appellant is defective and not
curable under section 422 of the CPC in view of the
principal offender being convicted and sentence of a lesser
offence;
(ii) The learned trial Judge failed to make findings on common
intention and the offence of abetment by conspiracy;

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(iii) The learned trial Judge erred when she took into
consideration the confession statement of Andrew as
evidence and marked it as P 98; and
(iv) The learned trial Judge failed to give due consideration to
the defence of the appellant.
We will address the above 4 points in the following paragraphs.
D(i) Whether the charge against the appellant is defective and
incurable under section 422 of the CPC in view of the
principal offender being convicted and sentence of a lesser
offence
[42] This issue was not addressed by the learned trial Judge although
it was raised in submission by the defence at the close of the
prosecution’s case.
[43] In this case, although the charge was against both Andrew and
the appellant, the trial proceeded against the appellant alone as
Andrew, to date, is still at large. Their charge was in respect to the
offence of abetment by way of conspiracy under section 107 (b)
punishable under section 109 in the murder of the deceased (under
section 302) read together with section 34 of the PC.
[44] The appellant contended that the charge against her for murder
under section 302 is defective and incurable under section 422 of the
CPC by virtue of the conviction of the principal offender (PW 5) who
pleaded guilty to a lesser offence under section 304 (a) of the PC. The
appellant argued that she, being charged for abetment, cannot be
charged on a serious offence for murder when the principal offender
has been found guilty and convicted on a lesser offence of culpable
homicide not amounting to murder.

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[45] The respondent on the other hand submitted that the charge
against the appellant was not defective, but impeccable, flawless and
correct in law. This is because, an offence of abetment is a separate,
distinct and substantive offence, particularly in this case, the abetment
charge is by way of conspiracy which is not dependent on the
acquittal or conviction of the principal offender.
[46] Premised on the provisions of the law and established
authorities, we form the view that the charge was not defective by the
fact that the principal offender was charged and convicted on a lesser
charge than the appellant for the following reasons.
The powers of the Public Prosecutor
[47] Section 376(1) of the CPC provides that the Attorney General
shall be the Public Prosecutor and shall have the control and direction
of all criminal prosecutions and proceedings under the Code, and the
discretionary power exercisable by the Attorney General in the
institution, conduct and discontinuance of any proceeding for an
offence is derived from the constitutional provision under Article
145(3) which reads as follows:
‘The Attorney General shall have power, exercisable at his
discretion, to institute, conduct or discontinue any
proceedings for an offence, other than proceedings before
a Syariah court, a native court or a court-martial.’
[48] The Federal Court in the case of Johnson Tan Han Seng v.
Public Prosecutor [1977] 2 MLJ 66 stated that:
‘The language of this provision is very wide, for it
includes the word “discretion” which means liberty of
deciding as one thinks fit…The Attorney General is in
touch with the police and other investigating agencies, and

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he has information not available to the courts and on which
to base his decision on whether or not to prosecute and if
so on which charge…whether a lesser or a greater one, it
must not be thought that he may act dishonestly. The
public of whose interest he is the guardian has a right to
expect him to act honestly, without fear of powerful
national and local figures or of the consequences to him
personally or politically, and without favoring his relatives
and friends and supporters, his principal concern being to
maintain the rule of law so that there will be no anarchy
and to maintain standards in public life and the private
sector, and if he did not do his duty honestly and properly
the public would be able to show their disapproval not
however in the courts but elsewhere…”
[49] The Attorney General may then lawfully prefer a lesser charge
when the evidence discloses a graver offence as decided by the
Federal Court in the case of Long bin Samat & Ors. v. Public
Prosecutor [1974] 2 M.L.J. 152. In this case, the Federal Court
viewed Article 145 of the Federal Constitution as giving wide
discretion to the Attorney General over the control and direction of all
criminal proceedings. It held that:
“In our view, this clause from the supreme law clearly
gives the Attorney General very wide discretion over the
control and direction of all criminal prosecutions. Not only
may he institute and conduct any proceedings for an
offence, he may also discontinue criminal proceedings that
he has instituted, and the courts cannot compel him to
institute any criminal proceedings which he does not wish
to institute or to go on with any criminal proceedings
which he has decided to discontinue...Still less then would
the court have power to compel him to enhance a charge

21
when he is content to go on with a charge of a less serious
nature…the Public Prosecutor has a discretion as to what
charges should be preferred, subject of course to the power
of the court to amend charges in the course of a trial…”
[50] Hence, the power held by the Public Prosecutor to institute any
proceeding on either a serious or less serious offence is the
discretionary power held by the Public Prosecutor, based on his
appreciation of the evidence in the Investigation Paper. The duty of
the court is to assess, based on the evidence produced, whether the
charge preferred is proved according to the rule of evidence and
procedure. This is what was stated by Huggard C.J. in the case of
Bapoo v. Rex [1935] MLJ 19, that:
“If the contention of the appellant’s counsel were to be
accepted, it would follow that if the record when first laid
before the Public Prosecutor disclosed the possibility of an
offence of a more serious nature, the Public Prosecutor
would be obliged to charge the accused with the more
serious offence regardless of the fact that the evidence in
support of the lesser offence might be overwhelming and
that in support of the more serious offence might be
doubtful and unsatisfactory. In our view this is opposed to
the whole spirit of the Criminal Procedure Code, which is
designed to give the Public Prosecutor or his Deputy a
wide discretion in determining the actual charges to be
preferred and in designating the court before which such
charges shall be tried.”
[51] In coming to a conclusion that the charge was not defective by
the fact that the principal offender was charged and convicted on a
lesser charge than the appellant, we are also guided by the decision of
the Privy Council in the case of Hui Chi-Ming v. R [1991] 3 All ER 89

22
7 referred to by this Court in Public Prosecutor v. Tiong King Guan &
Anor [2015] 4 MLJ 235. There, the Privy Council held that the
prosecution of the abettor for murder rather than manslaughter did not
amount to an abuse of process by the prosecution. In our present
appeal, the principal offender who was charged with murder was
found guilty and convicted of manslaughter, while the appellant, an
abettor who was arrested nearly two years after the incident, was
originally charged with manslaughter but was later indicted on a
charge of murder and was found guilty and convicted thereto.
[52] As a comparative approach, we make reference to the position in
Singapore in analyzing the power of the prosecution in its exercise of
discretion in preferring differential charges against two persons
involved in the same criminal enterprise, one being charged with a
capital and the other with a non capital offence. The reason being, in
Singapore, the power of the Public Prosecutor is vested in the
Attorney General who derived his power from the provision of its
Constitution (Art. 35(8)) which, apart from the exceptions, is worded
similar to our Art. 145(3).
Cases such as Ramalingam Ravinthran v. Attorney-General [2012]
SGCA 2, Quek Hock Lye v. Public Prosecutor [2012] SGCA 25 and
Thiruselvam s/o Nagaratnam v. Public Prosecutor [2001] SGCA 13
indicated that the prosecution has a wide discretion to determine what
charge or charges should be preferred against any particular offender,
and to proceed on charges of different severity as between
participants of the same criminal acts. In Ramalingam Ravinthran v.
Attorney-General the Court in its judgment said that:
“[63] In the context of the prosecutorial power, the
prosecution is obliged to consider, in addition to the legal
guilt of the offender, his moral blameworthiness, the
gravity of the harm caused to the public welfare by his

23
criminal activity, and a myriad of other factors, including
whether there is sufficient evidence against a particular
offender, whether the offender is willing to cooperate with
the law enforcement authorities in providing intelligence,
whether one offender is willing to testify against his co-
offenders, and so on – up to and including the possibility
of showing some degree of compassion in certain cases”
[53] In support of its contention that the charge against the appellant
is correct in law, the prosecution relied on Kee Kim Chooi v. PP
[1952] 1 LNS 44 where Thomson J clearly held that abetment of an
offence is a distinct offence from the offence itself punishable under
section 109 of the PC. As the case in Kee Kim Chooi involved a
customs offence, similarly abetment of a customs offence was held to
be a distinct offence punishable under section 119 of the Customs
Enactment. The case of Faguna Kanta Nath v. State of Assam, AIR
[1959] 673 however restricted abetment as a distinct offence when it
held that only in abetment of intentionally aiding under section 107
limb C of the PC, the conviction or acquittal of the principal offender
entail acquittal of the abettor.
[54] This court in Periasamy a/l Sinnapan v. Pendakwa Raya [1996]
3 CLJ 187, preferred to follow Faguna Kanta Nath, when it held at
page 216 that :
“The offence of abetment, when it consists of
instigation, constitutes a separate and distinct offence.
Consequently, an abettor who instigates the commission of
an offence or conspires to commit it, may be convicted of
abetment, notwithstanding that one who is charged with
the principal offence has been acquitted. It is otherwise,
where the abetment consists of intentional aiding; in

24
such a case, acquittal of the principal offender must
result in the acquittal of the abettor.
We find the statement of principle by Thomson J (as he
then was) in Kee Kim Chooi & Ors v. PP [1952] MLJ 180,
that abetment is a separate offence to be too wide and as
not representing the law upon the subject. Instead we
would accept as correct the enunciation of the principle by
the Supreme Court of India in Faguna Kanta Nath v. The
State of Assam AIR [1959] SC 673 which accords, with the
view we have expressed in the previous paragraph.”
[55] Coming back to our present appeal, the abetment charge
preferred by the prosecution against the appellant is under section 107
(b) of the PC which is abetment by conspiracy. Hence applying the
principle as enunciated in Faguna Kanta Nath v. State of Assam and
approved by this court in Periasamy a/l Sinnapan v. Pendakwa Raya,
the charge against the appellant which is the act of abetment by
conspiracy, is thus a distinct offence on its own. Given the
aforementioned authorities, we are of the view that the prosecution’s
choice of maintaining the charge of abetment by way of conspiracy in
the murder of the deceased punishable under section 109 read with
section 302 together with section 34 of the PC while the principal
offender was offered an alternative charge of culpable homicide not
amounting to murder upon his representation and which he had
pleaded thereto, did not make the charge defective.
[56] Be that as it may, there is still the question of whether there is
sufficient evidence to convict the appellant on the charge against her
in the trial court, regardless of the fact that the principal offender had
been convicted of a lesser offence under section 304 (a) of the PC in
an earlier trial.

25
D(ii) The learned trial Judge failed to make findings on common
intention and the offence of abetment by conspiracy
[57] The charge against the appellant specifically states that the
appellant together with Andrew in furtherance of common intention,
by way of conspiracy, abetted PW 5, in the commission of murder of
the deceased. The emphasis by the defence is that the learned Judge
failed to address the fundamental issue of common intention in the
charge against the appellant. There was completely no finding from
the learned Judge on the issue of common intention. As such the
learned Judge could never find a prima facie case on a maximum
evaluation of the prosecution’s evidence against the appellant at the
end of the prosecution’s case. The defence claimed that there was
absolutely no evidence to show a meeting of the minds or any
prearranged plan between the appellant and Andrew to allegedly
commit the non-existent murder charge.
The law on Abetment by Conspiracy
[58] The charge against the appellant is for an offence of abetment
by way of a conspiracy under section 107 (b) which reads as follows:
107 Abetment of a thing
“A person abets the doing of a thing who-
(a) instigates any person to do that thing;
(aa) commands any person to do that thing;
(b) engages with one or more other person or persons in
any conspiracy for the doing of that thing, if an act
or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or

26
(c) intentionally aids, by any act or omission, the doing
of that thing.
Explanation 1 - A person who, by willful
misrepresentation, or by willful concealment of a material
fact which he is bound to disclose, voluntarily causes or
procures, or attempts to cause or procure, a thing to be
done, is said to instigate the doing of that thing.”
………
Explanation 2 - Whoever, either prior to or at the time of
the commission of an act, does anything in order to
facilitate the commission of that act, and thereby
facilitates the commission thereof, is said to aid the doing
of that act.”
[59] In the case of Chandrasekaran & Ors. v. Public Prosecutor
[1971] 1 MLJ 153, citing the case of Hussain Umar v. Dalipsinghji
AIR 1970 SC 5, the court states that:
“In order to constitute the offence of abetment by
conspiracy there must be a combination of two or more
persons to do, or cause to be done, an illegal act, or an act,
which is not illegal, by illegal means and that act or
omission must take place in pursuance of that conspiracy
and in order to the doing of that thing. It is not necessary
that the abettor should himself be directly involved as a
participant in the offence committed. It is sufficient if he
engages in the conspiracy in pursuance of which the
offence is committed. In a conspiracy, there is a common
purpose. Each and every one of the conspirators is aware
that he has to play his own part in a united effort to
achieve the common purpose, although at times he does

27
not know all the secrets or the means by which the
common purpose is to be achieved. The concept of
conspiracy is the agreement to work in furtherance of the
common purpose.”
Three ingredients of abetment by conspiracy must then be proved
which are as follows:
i. That the abettor must engage with one or more
persons in a conspiracy;
ii. The purpose of the conspiracy must be for carrying
out the thing abetted;
iii. An act or illegal omission must occur pursuant to the
conspiracy in furtherance of the object of that
conspiracy.
(See Public Prosecutor v. Datuk Haji Harun bin Haji Idris & Ors
[1977] 1 MLJ 180 whereby abetment by conspiracy was defined to
consist in the combination and agreement of persons to do some
illegal act or to effect some illegal purpose by illegal means.)
[60] The application of this limb is effected even if the abettor is not
present when the offence abetted is committed as held in the case of
Noor Mohammad Mohd. Yusuf Momin v. The State of Maharashtra
AIR 1971 SC 885, the Supreme Court of India commented on the
meaning of sections 34 and 109 of the Indian Penal Code which are in
pari materia with our Penal Code that,
“So far as S. 34, Indian Penal Code is concerned, it
embodies the principle of joint liability in the doing of a
criminal act, the essence of that liability being the
existence of a common intention. Participation in the
commission of the offence in furtherance of the common

28
intention invites its application. Section 109, Indian
Penal Code on the other hand may be attracted even if
the abettor is not present when the offence abetted is
committed provided that he has instigated the commission
of the offence or has engaged with one or more other
persons in a conspiracy to commit an offence and
pursuant to that conspiracy some act or illegal omission
takes place or has intentionally aided the commission of
an offence by an act or illegal omission.”
[61] In differentiating between criminal conspiracy under section
120B and abetment by way of conspiracy under section 107 (b), the
Court noted that proof of a conspiracy by direct evidence is rarely
achieved considering the nature of its secrecy. It stated that:
“A conspiracy from its very nature is generally hatched in
secret. It is, therefore, extremely rare that direct evidence
in proof of conspiracy can be forthcoming from wholly
disinterested quarters or from utter strangers. But, like
other offences, criminal conspiracy can be proved by
circumstantial evidence. Indeed in most cases proof of
conspiracy is largely inferential though the inference must
be founded on solid facts. Surrounding circumstances and
antecedent and subsequent conduct, among other factors,
constitute relevant material. In fact because of the
difficulties in having direct evidence of criminal
conspiracy, once reasonable ground is shown for believing
that two or more persons have conspired to commit an
offence then anything done by anyone of them in reference
to their common intention after the same is entertained
becomes, according to the law of evidence, relevant for
proving both conspiracy and the offences committed
pursuant thereto.”

29
[62] Hence, in proving a conspiracy, one of the method would be to
show that the words and actions of the parties indicate their concert in
the pursuit of a common object or design, giving rise to the inference
that their actions must have been co-ordinated by arrangement
beforehand. These actions and words do not of themselves constitute
the conspiracy but rather constitute evidence of the conspiracy (Public
Prosecutor v. Yeo Choon Poh [1993] SGCA 76).
The law on common intention
[63] “Common Intention” revolves around section 34 of the PC
which provides that:
“Each of several persons liable for an act done by all, in
like manner as if done by him alone. When a criminal act
is done by several persons, in furtherance of the common
intention of all, each of such persons is liable for that act
in the same manner as if the act were done by him alone.”
The elements of section 34 of the PC are:
(i) a criminal act;
(ii) participation in doing of the act;
(iii) a common intention between the parties; and
(iv) the act must be done in furtherance of the common
intention.
[64] Section 34 of the PC is a rule of evidence which relies on the
principle that if two or more persons intentionally do a thing jointly,
it is just the same as if each of them had done it individually (Krishna
Rao a/l Gurumurthi v. PP & Anor Appeal [2009] 3 MLJ 643).
Common intention as distinguished from the same or similar intention

30
requires proof that the criminal act was done in pursuance of a pre-
arranged plan (Mahbub Shah v. Emperor [1945] 2 MLJ 144). Such
pre-planning may develop on the spot or in the course of pre
commission of an offence, the crucial test being the plan must precede
the commission of the offence (Namasiyiam & Ors v. PP [1987] 2
MLJ 336). Common intention may be difficult to prove by direct
evidence but it can be inferred from the circumstances of the case and
the conduct of the accused person (Dato’ Mokhtar bin Hashim & Anor
v. PP [1983] 2 MLJ 232). Presence is unnecessary to constitute
participation in every case.
[65] In the case of Farose bin Tamure Mohamad Khan v. Public
Prosecutor and other appeals [2016] 6 MLJ 277 involving 4 accused
in charges of robbery and murder, in laying out the principles
governing common intention, its origin and application, the Federal
Court held that:
“[65]… It is not incumbent on the prosecution to prove
that there existed between the participants a common
intention to commit the crime actually committed. As long
as there is a common intention to commit a criminal act,
which resulted to the commission of a crime actually
committed, section 34 can operate against all persons
involved in the commission of the actual crime.
…..
[70] ……common intention is concerned with the
principle of joint liability in penal law. ”,
whereby participation by any of the accused may be overt or covert
and which need not in all cases be by physical presence. The role
played by each and every accused must be assessed in totality in
deriving into a conclusion whether common intention does exist.

31
[66] We take note of the judgment of Thomas J in Suresh v. State of
Uttar Pradesh AIR [2001] SC 1344, in relation to the application of
section 34 of the PC where His Lordship stated that:
“Even the concept of presence of the co-accused at the
scene is not a necessary requirement to attract s. 34 eg the
co-accused can remain a little away and supply weapons to
the participating accused either by throwing or by
catapulting them so that the participating accused can
inflict injuries on the targeted person. Another illustration,
with the advancement of electronic equipment can be
etched like this: one of such persons in furtherance of the
common intention, overseeing the actions from a distance
through binoculars can give instructions to the other
accused through mobile phones as to how effectively the
common intention can be implemented. We do not find any
reason why s. 34 cannot apply in the case of those two
persons indicated in the illustrations.
Thus to attract s. 34 IPC two postulates are indispensable:
(1) the criminal act (consisting of a series of acts) should
have been done, not by one person, but more than one
person (2) doing every such individual act cumulatively
resulting in the commission of criminal offence should
have been in furtherance of the common intention of all
such persons.
Looking at the first postulate pointed out above, the
accused who is to be fastened with liability on the strength
of s. 34 IPC should have done some act which has nexus
with the offence. Such act need not be very substantial, it
is enough that the act is only for guarding the scene for
facilitating the crime. The act need not necessarily be

32
overt, even if it is only a covert act it is enough provided
such a covert act is proved to have been done by the co-
accused in furtherance of the common intention. Even an
omission can, in certain circumstances, amount to an act.
This is the purport of s. 32 IPC. So the act mentioned in s.
34 IPC need not be an overt act, even an illegal omission
to do a certain act in a certain situation can amount to an
act, e.g. a co- accused, standing near the victim face to
face saw an armed assailant nearing the victim from
behind with a weapon to inflict a blow. The co-accused,
who could have alerted the victim to move away to escape
from the onslaught deliberately refrained from doing so
with the idea that the blow should fall on the victim. Such
omission can also be termed as an act in a given situation.
Hence an act, whether overt or covert, is indispensable to
be done by a co-accused to be fastened with the liability
under the section. But if no such act is done by a person,
even if he has common intention with the others for the
accomplishment of the crime, s. 34 IPC cannot be invoked
for convicting that person. In other words, the accused
who only keeps the common intention in his mind, but
does not do any act at the scene, cannot be convicted with
the aid of s. 34 IPC.”
Whether there is evidence of common intention by way of conspiracy
[67] Applying the general accepted principles as aforesaid, to the
facts of the appeal, we agree with the defence that there is no direct
evidence adduced by the prosecution of any pre arranged plan devised
between the appellant and Andrew to commit the offence or the
meeting of the minds as a pre requisite under section 34 of the PC.
Although the learned trial Judge addressed the circumstantial

33
evidence which she found to link the appellant to the murder (at pages
23-26 of Jilid 1 in her grounds), what is glaring is the evidence of a
plan between Andrew and PW 5. What is markedly absent, is the
evidence, be it direct or circumstantial, of any agreement between
Andrew and the appellant of any prearranged plan or meeting of the
minds, to kill the deceased.
[68] The other concern is the nexus of the act of killing the deceased
by PW 5 with the appellant. PW 5 said that he does not know the
appellant, have never met her and neither does he know how she looks
like. PW 5‘s link is only with Andrew. There is not an iota of
evidence adduced by the prosecution of any prearranged plan between
the appellant and Andrew. Neither is there evidence of participation
by the appellant in the act of the killing of the deceased by PW 5. The
evidence of pre arranged plan, if any, is as testified by PW 5, was
only between Andrew and PW 5.
[69] We have given our careful consideration of the circumstancial
evidence which was listed by the learned trial Judge in her grounds
which formed the basis of conviction of the appellant on the preferred
charge against the appellant. This is our observation and view:
Circumstantial Evidence: The Call Logs
[70] Our concern is the unerring evidence of the call logs on the
morning of 14.6.2012, around the time of the murder. This is the
evidence of the active communications between the appellant’s hand
phone and Andrew’s at the time of the commission of the crime. For
clarity, we reproduced the call logs as summarized by the prosecution
as evidenced from exhibits P 84 and P85:

34
Date Caller Recipient From To Total
Calls
10.6.2012 Andrew Appellant 10.21am 11.23 am 3
Appellant Andrew 9.11 am 11.12 am 10
11.6.2012 Andrew Appellant 10.56 am 4.56 pm 9
Appellant Andrew 8.11 am 9.40 pm 7
14.6.2012 Andrew Appellant 12.07 am 1.23 am 18
Andrew Appellant 7.51 am 8.59 am 11
15.6.2012 Andrew Appellant 10.03 am 10.14 am 21
Appellant Andrew 1.165 pm 10.14 pm 17
16.6.2012 Andrew Appellant 12.01 pm 6.15 pm 5
[71] We note that the evidence of PW 5 was not challenged by the
defence as the defence was focused on the absence of any link

35
between the act of PW 5 and the appellant. As to the reliability and
credibility of PW 5’s evidence, we will address it in the later part of
this judgment. Suffice to state at this stage that the evidence as to the
timing by PW 5 as to his entry and leaving of the deceased’s house is
not an issue as it was never challenged by the defence.
[72] The murder of the deceased as was narrated by PW 5 occurred
between 12 a.m. – 1.00 a.m. It was also the evidence of PW 5 that by
1 a.m. he left the house of the deceased and arrived home when he
took his bath, cleaned himself after the murder.
[73] Back to the call logs of P 84 and P 85 which was relied heavily
by the prosecution. The prosecution submitted that from the call logs
there were active communications between Andrew and the appellant,
and communications between Andrew and PW 5. From these call logs,
the prosecution submitted that it shows the 3 were in contact and it
heightened just before the murder. These call logs indicate that
Andrew acted as intermediary as Andrew knew PW 5 and the
appellant.
[74] It is the appellant’s defence as early as at the prosecution’s
stage that she was not in communication with Andrew between 12.00
a.m. – 1.21 a.m. as she had been asleep by then. The appellant said
that her hand phone was used by the deceased, as the deceased had
done that before as he was jealous of the appellant’s male colleagues
that had contacted the appellant. From the call logs there were calls
from the appellant’s handphone to Andrew after the deceased had
been stabbed by PW 5, namely from the time of 12.40 a.m. - 1.21 a.m.
The question is, who had used the appellant’s handphone at that
material time? The learned trial Judge found that it cannot be the
deceased talking or texting to Andrew using the phone belonging to
the appellant as suggested by the defence. In this respect, we found
that such findings by the learned trial Judge was not wrong. This is

36
because, to accept the suggestions by the defence that it was the
deceased who was talking or texting to Andrew between 12.40 a.m.-
1.21 a.m., would be contradicting with the evidence of PW 5 that he
had entered the house between 12.00 a.m. – 1.00 a.m. and that by 1.00
a.m. he was already back home.
[75] Given that the evidence of PW 5 was never challenged by the
defence, we cannot ignore this evidence by PW 5 as to the timing
when he entered the house and stabbed the deceased. In addition, the
evidence of PW 5 is corroborated by the evidence of PW 8, the
medical assistant who said that the deceased could have died less than
2 hours when he arrived at the crime scene at 2.05 a.m. It is therefore
safe to infer that the killing was committed between 12.30 a.m. or
12.50 a.m. thereabout.
[76] It would then be illogical for the deceased to make calls or
texting to Andrew using the phone of the appellant from 12.40 a.m. -
1.21 a.m., as he would have been dead by then. It was also in evidence
by PW 5 that when he went into the bedroom (which should be
between 12.00 a.m. - 1.00 a.m.), he saw the deceased sleeping on the
mattress, and that was when he stabbed the deceased. If we are to
believe the suggestion by the defence as true, i.e. that the deceased
was making calls to Andrew even at 1.21 a.m., surely around 12.30
a.m. - 1.21 a.m. the deceased would still be awake and would have
seen PW 5 entering the bedroom. Given the aforesaid, that cannot be
the case, as PW 5 said in evidence that when he went into the
bedroom, he saw the deceased sleeping on the mattress on the floor.
Therefore, it cannot be the deceased busy communicating with
Andrew about 20 times from 12.40 a.m. to 1.21 a.m.!
[77] Therefore, from the call logs and the evidence of PW 5, we
agree with the learned trial Judge that it is safe to conclude that it was
not the deceased who made the calls using the appellant’s handphone

37
during the time from 12.40 a.m. - 1.21 a.m., as suggested by the
defence.
[78] The question again is, who made those calls to Andrew using the
appellant’s phone? The learned trial Judge concluded that it was the
appellant. In this respect, we found that the call logs does not seem to
fit with the version of narrative submitted by the prosecution, which
the learned trial Judge had adopted in her findings, and which the
prosecution is trying very hard to convince us, namely, that it was the
appellant who was communicating with Andrew around that particular
time. If one is to believe the version by the prosecution as being
correct, a look at the call logs from 12.40 a.m.- 1.21 a.m. on
14.6.2012, show that the appellant was very busy communicating with
Andrew on the hand phone as the calls was like every other minute. In
other words, the appellant was practically holding onto her hand
phone from 12.40 a.m. until 1.21 a.m. communicating with Andrew.
This would mean that at the time when PW 5 entered the bedroom
around 12.40 a.m. or thereabout the appellant should be on the phone
busy communicating with Andrew for 18 times. At the same time,
let’s not forget the evidence of PW 5 when he said that when he
entered the bedroom around 12.00 a.m.- 1.00 a.m., the room was dark
and the appellant and her son were huddled together under the blanket
on the bed. How could the appellant be on the phone communicating
with Andrew at that time. From the call logs it was a continuous kind
of communication from 12.40 a.m. – 1.21 a.m. PW 5 was never asked
specifically whether the appellant was on the phone around that time
when he entered the bedroom. Neither did the defence. But it was for
the prosecution to prove their case, not the defence. The narrative by
the prosecution creates this doubt as to whether the appellant was on
the phone around 12.40 a.m. – 1.21 a.m. communicating with Andrew.
The timing of the calls from the call logs in exhibits P 84 and P 85
and the timing of the act of the stabbing by PW 5 does not appear to

38
support the finding that it was the appellant who was on the phone
communicating with Andrew at the material time. The appellant has
been consistently maintaining her defence that she was not using her
hand phone at that time, from the beginning at the prosecution’s stage.
The doubt here was not explained by the prosecution until the end of
the trial. The appellant cannot be penalized for lack of ingenuity in
police investigations depriving her of the time honoured benefit of the
doubt (Refer to the Federal Court case of Pang Chee Meng v. PP
[1992] 1 MLJ 137).
Apart from the call logs in P 84 and P 85, which does not conclusively
proved that the calls were made by the appellant to Andrew, there is
no other evidence adduced by the prosecution that supports the
contention that the calls were made by the appellant.
Consequently, we find that it is not safe to conclude that it was the
appellant who was communicating with Andrew around the said time.
[79] However, even taking the prosecution’s case at its highest,
(assuming that the appellant was the one texting or communicating to
Andrew before and after the murder which we have found that it was
not the appellant), that by itself is not sufficient to show that the
appellant had conspired with Andrew to kill the deceased, in the
absence of the contents of the SMSes and the calls. That absence,
leaves us in doubt as to what was actually communicated by the
appellant to Andrew and vice versa. Therefore, even if it is true that
the appellant was communicating with Andrew, still, we find it unsafe
to conclude that the call logs are conclusive evidence that it was the
appellant who had guided Andrew as to the movements of the
deceased and informing Andrew as to when/how to enter the house.
[80] Taking the case of the prosecution that it was a pre planned
murder, why was there the necessity for the appellant to communicate
with Andrew immediately after the murder for 20 times. After all the

39
murder was already done with at 1.00 a.m. Again, it is crucial that the
contents of the SMSes and the calls at the material time, should have
been made available to clear this doubt.
[81] The prosecution is also relying on the evidence of the call logs
between PW 5 and Andrew (page 912 of RR Jilid 3 (1)) which show
calls made by PW 5 to Andrew from 12.50 a.m. until 2.30 a.m. There
is the evidence of PW 21, the investigating officer (page 542 RR Jilid
2 (1)) who said that Andrew communicated with PW 5 in the early
morning of 14.6.2012. It was also suggested by the defence that the
call logs at the time between 12.50 a.m. to 2.00 a.m on 14.6.2012
showed the hand phone numbers of 014 680 0591 and 016 579 1292
which were not registered under Andrew’s name but under the name
of Hamidi bin Sidik and Wong Pik Ing respectively which was
confirmed by PW 21, the investigation officer. PW 21 said that based
on his investigation on the 2 numbers and the 2 names of Hamidi bin
Sidik and Wong Pik Ing, he said he could not find these 2 persons.
PW 21 found that these numbers are prepaid numbers and that the
billing addresses are incomplete. It was the evidence of PW 21 that he
got the number 016 579 1292 from PW 5, although PW 5 from his
evidence could not remember the number that he used to contact
Andrew. Neither was it suggested to PW 5 that the number 016 579
1292 was used by him. It was left hanging in the evidence of PW 5
when he said that he could not remember the number that he was
using when he texted or called Andrew in the early hours of
14.6.2012. It was in the investigation of PW 21 that at the material
time of the murder, Andrew was using the numbers 014 680 0591
apart from 016 889 6656. However it was never explained by PW 21
as to how he arrived at such conclusion and neither was it proven that
the number 014 680 0591 was indeed used by Andrew. Hence, apart
from the oral evidence of PW 5 that he had texted Andrew when he
entered the deceased’s house before the murder, there is no

40
corroborative evidence to prove that Andrew and PW 5 had
communicated with each other before and after the murder, as the call
logs as found at page 912 RR Jilid 3 (1) was not proven to be the calls
between Andrew and PW 5. Neither was Wong Pik Ing or Hamidi bin
Sidik called to testify in court.
[82] The aforesaid evidence negated the case for the prosecution that
the call logs at page 912 RR Vol 3 (1) proved there was an SMS sent
out from PW 5’s hand phone to Andrew’s on 14.6.2012. We find it
unsafe to conclude that 016 579 1292 was the number used by PW 5
and that the number 014 680 0591 was the number used by Andrew.
[83] The finding of the learned trial Judge that the entry to the house
could not have been made possible without the help of someone from
inside the house. There were only 3 people in the house at that point
in time i.e. the appellant, the deceased and their 3 year old son.
Between the 3, the learned trial Judge found that the high probability
would be the appellant. We are of the view that such findings and
conclusions are bereft of evidential support, given the evidence of the
timing of the call logs that there is a possibility that the calls were not
made by the appellant (see paragraph 78 of this judgment).
[84] There is clear evidence that Andrew hired PW 5 to kill the
deceased and there was prearranged plan between the both of them.
However, the finding by the learned trial Judge which implicated the
appellant is unsubstantiated. As far as the appellant is concerned, the
only evidence that appears to implicate her are the call logs, which
linked to her hand phone number but not necessarily made by her. As
to who facilitated the entry of PW 5 into the house, the prosecution
relied on circumstantial evidence that seem to point to the appellant.
It was suggested by the defence that in all probability it could have
been the deceased forgetting to lock the back door and the bedroom
door, as he was the last person to have gone to sleep on that fateful

41
night. That is also that possibility, however, the learned trial Judge
made the finding that it was the appellant who left the doors unlocked
to facilitate the entry of PW 5 into the house, for the reason that the
timing of the calls and the timing of the killing as stated by PW 5
show that the appellant was very much awake around 12.00 a.m. –
1.21 a.m. However, we have stated our reasons as aforesaid that such
conclusions by the learned trial Judge is erroneous.
[85] Ultimately, our point is this. With regards to the call logs, in the
absence of the contents of the call logs, and also given the doubt as to
who actually was communicating with Andrew at the time of the
murder, it is not safe to conclude that these call logs are proof of the
conspiracy between the appellant and Andrew to commit murder by
hiring PW 5.
[86] From the aforesaid, the learned trial judge failed to give
adequate judicial appreciation and evaluation of the law and facts in
the absence of facts/evidence to support the essential ingredients of
common intention by way of conspiracy between the appellant and
Andrew who was still at large, in abetting PW 5 in the offence of
murder of the deceased.
D(iii) Whether the learned trial Judge erred when she took into
consideration the confession statement of Andrew as
evidence and marked it as P 98
[87] At the end of the prosecution’s case before the prosecution
submitted its written submission, the prosecution filed a Notice of
Motion to recall PW 21, the investigation officer under section 425 of
the CPC to tender the cautioned statement of Andrew.
[88] The learned trial Judge had allowed the said application by the
prosecution to recall the investigating officer at the end of the

42
prosecution’s case under section 425 of the CPC to tender the
cautioned statement of Andrew and marked it as P 98. Her reasons are
as follows:
“It is the duty of the court to examine whether the recall of
witness PW 21 with new evidence which may be
admissible in the court in order to arrive at a just decision.
It is well understood by all parties that opportunity of a
fair trial cannot be compromised. Tiong King Guan @
Andrew played a vital role in this murder case and can be
seen from PW 5, PW 9, PW 10 and PW 11 and it is
essential to the just decision of this case to have the s. 112
of the CPC statement to be admitted and therefore marked
as exhibit P 98.
To be fair to the defence with the new exhibit tendered, the
court shall give further time to submit written submission
at the end of the prosecution’s case.”
[89] It appears that the learned trial Judge had already marked the
112 statement of Andrew as prosecution’s exhibit (P 98) even before
the defence submitted at the end of the prosecution’s case. That, we
found the learned Judge had fallen into grave error, given that:
(i) the Statement by Andrew was made under section
112 of the CPC;
(ii) Andrew had earlier lodged a police report (exhibit
D1) that his statement was not given voluntarily but
under duress and inducement.
The learned trial Judge ought to have conducted a trial within a trial
before admitting the 112 statement of Andrew as an exhibit.

43
Clearly, the voluntariness of the statement by Andrew is an issue,
therefore it must be proven and the maker must be called to verify that
Andrew made the statement. As Andrew was not available and could
not be located, the prosecution has to surmount a hurdle as to how to
go about in proving that it was Andrew who made such statement.
From the notes of proceedings and the grounds of the learned trial
Judge, we are left in doubt as to the basis of the learned trial Judge in
accepting the statement by Andrew as an exhibit in P 98.
[90] In the event section 32 of the Evidence Act 1950 (EA) was
devised by the prosecution to admit the statement by Andrew, certain
requirements must be satisfied first before it can be admitted without
the presence of Andrew. Section 32 of the EA refers to statements by
a witness who cannot be procured due to the circumstances as stated
in the provision. Here we are concerned of statements by Andrew
(who is an accused person) recorded under section 112 of the CPC.
The requirements under section 32 of the EA cannot be applied across
the board to include statements by accused persons where different
considerations apply.
If, however the prosecution intends to make use of section 30 of the
EA, the statement must be a proved confession before it can be
admitted.
In any event we do not intend to go into detail of the pre requisites of
admitting statements under section 30 or 32 of the EA, as can be
discerned from the grounds of the learned trial Judge, those 2 sections
of the EA were never the basis of the learned Judge when admitting
the 112 statement of Andrew as evidence in court. In fact it was never
addressed at all by the learned trial Judge.
[91] It was submitted by the learned DPP that the learned trial Judge
did not consider P 98 when she convicted the appellant. However we
disagree with the learned DPP’s contention. Although the learned trial

44
Judge did not state expressly in the grounds of her judgment that she
took into account P 98 in convicting the appellant, however, after
having admitted the statement as P 98, it forms part of the exhibit
which was before the court. We noted the learned trial Judge had said
this in her grounds:
“After assessing the totality of the evidences of the
defence and re evaluate the evidences of the Prosecution, I
am left in no reasonable doubt that the accused is guilty of
the offence charged. I am satisfied that the prosecution has
proved its case beyond reasonable doubt.” (page 49 of RR
Jilid 1)
which means that the learned trial judge did consider P 98 as part of
the evidence when she convicted the appellant.
[92] Having regard to the aforesaid, we are of the view that the
statement of Andrew as in P98 was wrongly admitted. We have
excluded P 98 and all references to it from our minds and
considerations in the present appeal.
[93] However, we are also guided, that the test of whether the
judgment of the court should be reversed or altered on account of the
wrongful admission of evidence is whether or not that evidence was
sufficient to justify the decision (Wong Kok Keong v. R [1955] 21
MLJ 13). In Juraimi bin Husin v. PP [1998] 1 MLJ 537, the Federal
Court established the principle that if in a criminal appeal an
appellant has demonstrated errors in point of evidence or procedures
it is the duty of this court to determine whether, despite the error or
errors in question, there exists a reasonable doubt in its mind as to the
guilt of the accused, based upon the admissible evidence on record. If
the error or errors complained of, do not have this effect, then it is the
duty of this court to plainly say so and maintain the conviction.

45
[94] Therefore in applying the principle as laid down in Juraimi bin
Husin we take the view that the admission of the inadmissible
evidence in the form of P 98 in our present case by the learned trial
Judge not only has it created a reasonable doubt on our
mind as to the guilt of the appellant but has also occasioned
a substantial miscarriage of justice to the appellant as the
contents of P 98 are prejudicial to the appellant.
Evidence of PW 5
[95] It is the findings of the learned trial Judge that the evidence of
PW 5 should not be brushed aside. She made the findings that :
“there is no direct evidence to prove that there was an
agreement between the accused and Andrew but there was
an active communication which was supported by the said
call log. PW 5’s evidence as pursuant to section 60 of the
Evidence Act is that the accused who told Andrew that the
back doors were unlock.
…..
Therefore it is safe to infer that there was involvement of
the accused in this case. It is to be noted that PW 5’s
answer in this respect was never challenged.”
The learned trial Judge referred to Section 60 of the EA which
provides that:
“(1) Oral evidence shall in all cases whatever be direct,
that is to say-
(a) If it refers to a fact which could be seen, it must be
the evidence of a witness who says he saw it;

46
(b) If it refers to a fact which could be heard, it must be
the evidence of a witness who says he heard it;
(c) If it refers to a fact which could be perceived by any
other sense or in any other manner, it must be the
evidence of a witness who says he perceived it by
that sense or in that manner;
(d) If it refers to an opinion or to the grounds on which
that opinion is held, it must be the evidence of the
person who holds that opinion on those grounds.”
[96] The learned trial Judge did not state under which limb of section
60 of the EA that she was relying on, when she accepted the evidence
of PW 5 that he was told by Andrew on the unlocked door. PW 5’s
evidence on the unlocked door was what he heard from Andrew as to
what was allegedly told to Andrew by the appellant. Presumably it
would be pursuant to section 60 (1)(b) of the EA. The learned trial
Judge treated the evidence of PW 5 when he heard from Andrew as to
the back door and bedroom door not locked and the deceased sleeping
on the mattress, as direct evidence pursuant to section 60 (1) (b) of
the EA.
[97] We agree with the learned trial Judge that PW 5’s evidence was
never challenged by the defence in this respect. The defence
submitted that what was told by Andrew to PW 5 are hearsay and
hence not admissible.
[98] Our view in this respect is that, although Andrew was not
available to confirm what he said to PW 5, what is not disputed is that
PW 5 was told by Andrew about the bedroom door not locked and the
back part of the house has no CCTV coverage and that the deceased
would be sleeping on the mattress and when PW 5 went to the house
between 12.00 a.m.- 1.00 a.m. on 14.6.2012, the back door and the

47
master bedroom door was unlocked. According to PW 5 he was told
by Andrew that the appellant had informed Andrew that the doors
were not locked. What was told by Andrew to PW 5 as to what the
appellant told Andrew is clearly not admissible. The truth of what was
told to Andrew by the appellant has not been established. In other
words, it has not been established that it was the appellant who had
informed Andrew on the details of the deceased and the house on the
night of the murder. Therefore, other than the evidence of what the
appellant had told Andrew (which is clearly hearsay and not
admissible), we have no reason not to accept the evidence of PW 5 as
he is a credible and reliable witness. PW 5’s evidence is corroborated
by the following:
(i) PW 5 said he got this information of the unlocked
back door from Andrew. This evidence though
admissible does not carry much weight as Andrew is
not available to confirm. It was also the evidence of
PW 13, the mother of the deceased, that in the
morning after the murder, she saw the back part of
the house glass door and the metal door were
unlocked and the door to the dining was opened. The
door was not broken or damaged. This was also
testified by PW 21, the investigation officer. PW 13
also said that she saw blue plastic stools (although
she could not remember whether it was two or one)
inside the fence of the house at the back. This
corroborates the evidence of PW 5 who said that
when he left the house after the murder he used 2
stools as leverage to climb over the back fence of the
house. These stools were exhibits P 27 b (i) and (ii).
PW 13 also remembered in the morning of 14.6.2012

48
somebody asking the appellant why were there
plastic stools at the back of the house near the fence.
(ii) PW 9 in his evidence said that he was offered by
Andrew a deal to kill the deceased which he
declined. PW 10 and PW 11 were offered the job and
they also declined. However we found that there has
been an impeachment proceeding carried out against
PW 10 to which no ruling was made by the learned
Judge. Hence we excluded the evidence of PW 10
from our consideration in this appeal. PW 11
introduced Andrew to PW 5 who took up the deal as
he was desperate for money to settle his debt. It was
in evidence that PW 11 contacted PW 5 after the
murder and asked him why he killed the deceased
and PW 5 replied that he had already done it as he
had no choice (page 285 RR Jilid 2 (1)).
(iii) PW 5 said in evidence that he was informed by
Andrew to text him once he entered the house. PW 5
said he entered the house at 12.00 a.m. - 1.00 a.m. as
he could not remember the exact time. PW 5 said that
he was in the room about 2 minutes before he
escaped using the same way as he used to come in
earlier and that he used a stool as leverage to climb
over the fence at the back part of the house. When
PW 5 had completed killing the deceased, he went
back home around 1 am to take his bath and called
Andrew to inform him that he had completed the task
of killing the deceased. This would also show that by
1.00 a.m, the deceased was already stabbed thus
negating the story of the defence that it was the

49
deceased talking or making calls to Andrew after
1.00 a.m.
(iv) PW 5 said that he used a 6 inches knife to stab the
deceased on the throat, chest, back and thigh. PW 6,
the pathologist said that there were stab wounds at
the chest, neck and legs and some of the wound was
about 10 cm deep and it was caused by a sharp
object. PW 6 testified that the cause of death was as
a result of stab wounds to the neck and chest as
exhibited in P29.
(v) PW 5 also said that after the murder he threw the
knife and his clothings into the dustbin at his house.
These dustbins were recovered by the police and
tendered in court and marked as exhibits P 25B and
P26B.
(vi) PW 5 said that when he went into the bedroom on
14.6.2012 before the murder, he saw 2 persons
sleeping on the bed and one person sleeping on the
mattress on the floor. The 2 persons sleeping on the
bed covered themselves with the blanket and he
heard the sound of a small boy who cried “Papa” but
then it stopped as though someone covered his
mouth. This was supported by the evidence of the
appellant who said that when she saw the “intruder”
struggling with the deceased, she covered herself and
her son under the blanket” and covered her son’s
mouth when he cried for his father.
(vii) Further, PW 5 in giving evidence did not give
exculpatory evidence but fully implicated himself.

50
The cross examination by the defence on PW 5 did
not challenge the credibility of PW 5.
[99] In view of the aforesaid, we are entirely in agreement with the
learned trial Judge that the evidence of the back door and bedroom
door as being unlocked which facilitated the entry of PW 5 into the
house and as to his act in killing the deceased on 14.6.2012 was not
challenged. PW 5’s evidence was sufficiently corroborated by the
evidence as aforesaid. However as to who left the back door unlocked
is a subject of dispute.
[100] Although, the learned trial Judge had accepted the evidence of
PW 5, as being not challenged, we have taken the extra precaution of
scrutinizing the evidence of PW 5, given that he is an accomplice in
the murder. Given that we are of the view that PW 5 is a credible and
reliable witness, we also found that there are relevant corroborative
evidence from PW 6, PW 9, PW 11, PW 13 and PW 21. From the
evidence of PW 5, there is no evidence to show that PW 5 was
hired/instructed by the appellant to commit the act of killing the
deceased.
D(iv) Whether the learned trial Judge failed to consider the defence
[101] From the grounds we find that the learned trial judge had failed
to consider and evaluate the evidence in support of the defence of the
appellant.
[102] The failure by the prosecution to produce the contents of the
SMSes to rebut what the appellant had stated in her defence that it
was not she who called Andrew just before the murder, was not
adequately considered by the learned trial Judge given our findings of
the timing of the call logs which show that it was impossible for the
appellant to communicate with Andrew at the time of the murder when

51
the evidence of PW 5 is that the appellant and her son was covered
under the blanket when PW 5 was stabbing the deceased. It was also
the evidence of PW 5 that at the time when he entered the bedroom
the bedroom was dark and that was the time that he saw the deceased
sleeping on the mattress on the floor when he stabbed the deceased. If
it is true that the appellant was communicating with Andrew at that
time surely PW 5 would have stated in his evidence that when he
entered the bedroom the appellant was on her hand phone. However,
the evidence seemed to be that when PW 5 entered the bedroom the
appellant was certainly not on the phone busy communicating with
someone on the other end but was on the bed with her son under the
blanket. Although it is our view that those calls could not be made by
the deceased, it is also our view that, based on the timing of the call
logs and the evidence thus far, it is not safe to conclude that it was the
appellant who made those calls to Andrew.
[103] We are also of the view that, for the learned trial Judge to
conclude that it was the appellant who had called Andrew just before
the murder was unsupported by evidence and would be pure
speculation and conjecture. It cannot be inferred that just before the
murder the appellant and Andrew was talking on the phone as an aid
to facilitate PW 5 in the act of murder of the deceased. We find that it
is not safe to infer that those calls were evidence of conspiracy or
common intention between the appellant and Andrew. There is doubt
on the contents of those calls and the prosecution failed to remove
that doubt. We agree with the defence that the failure of the
prosecution to adduce the contents of the SMS and the calls at the
material time operates against the prosecution’s case.
[104] We are also of the view that the learned trial Judge had
misdirected herself in failing to address and evaluate the facts that
based on P 84 and P 85, it shows a frequency of calls between the
appellant’s handphone and Andrew’s which does not fit with the

52
evidence adduced by PW 5 as to what happened between 12.40 a.m. -
1.00 a.m. It raises doubt as to whether the appellant was the person
who was communicating with Andrew at that material time. The
learned trial Judge failed to give the benefit of the doubt on those
calls and the content of the messages or to give a favourable inference
to the appellant. Hence the learned trial Judge had erred in law and in
fact in making such erroneous findings against the appellant which led
subsequently to the conviction of the appellant, as it is the call logs
which appears to be the nail that sealed the coffin.
[105] The learned trial Judge relied largely on circumstantial
evidence to convict the appellant. The law as it stands is that
circumstantial evidence which can be relied on by the prosecution to
sustain a conviction has been defined in Idris v. PP [1960] 1 MLJ 296
which quoted Lord Cairns in Belhaven & Shenton Peerage [1875-76]
App Case 298. The learned trial Judge in Idris v. PP held that:
“In other words circumstantial evidence consists of this:
that when you look at all the surrounding circumstances,
you find such a series of undersigned, unexpected co
incidences that, as a reasonable person, you find your
judgment is compelled to one conclusion. If the
circumstantial evidence is such as to fall short of that
standard, it does not satisfy that test. If it leaves gaps then
it is of no use at all. As I have stated this case depends
entirely upon circumstantial evidence.”
[106] In dealing with circumstantial evidence, the learned trial Judge
must be satisfied that the guilt of the accused is beyond reasonable
doubt (PP v. Sarjit Kaur [1998] 1 MLJ 184) and PP v. Hanif Basree
bin Abdul Rahman [2008] 3 MLJ 161).
[107] Applying the principle as aforesaid, we find that the timing of
the call logs and the time of the murder, in addition to the absence of

53
the contents of the call logs leaves gaps and doubts in the
prosecution’s case. At best, the call logs invites conjectures and
speculations as to the basis of the calls from the appellant to Andrew
and vice versa.
[108] Although it is still possible to secure convictions premised on
circumstantial evidence, it should be noted that circumstantial
evidence by its nature on its own is a weak kind of evidence, leading
to various inferences being drawn from the set of facts. If there are
more than one possible inference that could be derived from the set of
facts which may not point to the guilt of the accused, then a
conviction could not stand. The conglomeration of a state of facts
when combined together should ultimately result in a strength strong
enough to convict. One classic case where the prosecution was able to
sustain a conviction purely based on circumstantial evidence is Sunny
Ang v. PP [1967] 2 MLJ 195 where although the body of the deceased
was never discovered, the accused was charged and convicted of the
murder of the deceased. The facts adduced by the prosecution were so
overwhelming and compelling that the court reached the irresistible
conclusion that the appellant had murdered the deceased. Among the
facts adduced and relied upon by the prosecution in Sunny Ang were:
(a) The appellant was declared a bankrupt a year earlier
and he remained as one on the day the offence was
alleged to have been committed;
(b) The deceased was insured against accidents with
several companies. Less than 24 hours after her
disappearance, the appellant made a formal claim;
(c) The appellant’s mother was named as a beneficiary in
some of the insurance policies;

54
(d) The deceased made a will naming the appellant’s
mother, who was not close to the deceased, as the
sole beneficiary;
(e) The deceased was a novice diver and yet the
appellant had allowed her to dive in dangerous
waters;
(f) The appellant did not go down to the waters himself
when the deceased had failed to resurface;
(g) The deceased had not worn gloves which were
common when looking for corals;
(h) Six days after the incident, flippers of the deceased
were found which were severed at the strap and cut
in two places.
[109] Our own local case which illustrates how circumstantial
evidence were found to be compelling enough to secure a guilty
charge is the case of Juraimi Hussin & 2 Others v. PP [1998] 1 MLJ
537. The accused in this case was convicted substantially on
circumstantial evidence. There was no direct evidence but the
following relevant facts were adduced:
(a) The decapitated body of the deceased was recovered
from the house occupied by the three appellants;
(b) The deceased’s death was caused by the severance of
his head by a weapon similar to the axe recovered at
the same premises;
(c) The day before his death, the deceased withdrew
RM300,000.00 from his bank accounts and the
appellants embarked on a spending spree, spending

55
more than RM200,000.00, payment being made in
RM1,000.00 notes which were in the same
denomination of notes in which the deceased had
earlier withdrawn;
(d) The second and third appellants had financial
difficulties;
(e) Certain items belonging to the deceased such as his
identity card, watch and shoes were found in the
appellant’s possession;
(f) The deceased was last seen alive in his car with the
second appellant;
(g) The body of the deceased was buried in a hole in the
ground soon after he was killed. This meant that the
hole must have been dug earlier, leading to the
inference that there was a pre-arranged plan on the
part of the appellants to kill the deceased.
[110] In contrast to the abovementioned case, is the case of PP v.
Sarjit Kaur a/p Najar Singh [1998] 1 MLJ 184 where the Court
rejected the circumstantial evidence which was the basis of the
prosecution’s case that the accused had murdered her husband, the
deceased. Amongst the facts adduced:-
(a) The accused was ill-treated;
(b) The accused was an unfaithful wife;
(c) Traces of blood stains were found on a dress
belonging to the accused;
(d) The accused was in a position to benefit financially
from the death of her husband;

56
(e) The accused had insisted that the maids together with
the three children go to bed earlier than usual.
[111] In PP v. Hanif Basree Abdul Rahman [2008] 3 MLJ 161, the
prosecution relied on the following pieces of circumstantial evidence,
namely that:-
(a) There was no sign of break in into the deceased’s
house, suggesting that her killer was someone known
to her;
(b) The accused had an intimate relationship with the
deceased and had access to her house;
(c) The accused was the last person seen with the
deceased and was the last person to have had sexual
intercourse with her;
(d) The DNA profile of the accused present in the face
towel was proof that he was responsible for choking
the deceased;
(e) The accused’s physique and weight had fit the
description that some of the bruises found on the
deceased were caused by the weight of a heavy
person pressing onto her body;
(f) The accused’s height enabled him to climb over the
wall at the back of the condominium compound to
escape after committing the murder;
(g) The conduct of the accused in shaving his pubic hair
and clipping his fingernails before giving himself up
showed his anxiety and should be viewed as making
some preparations to cover his tracks.

57
In spite of the aforesaid evidence adduced by the prosecution, it was
held by the Federal Court that :
“[4] The DNA of the accused found in circumstances that
might have created suspicion of his guilt was not enough
to prove his guilt. If there were reasonable explanations as
to why his DNA was found in those circumstances, the
benefit must be given to him and he must be acquitted and
discharged. The prosecution’s case became hampered with
the existence of the DNA belonging to the “unknown male
1”. Several inferences could be made from the findings of
such evidence on the body of the deceased. The discovery
of the DNA profile of the accused on the body of the
deceased per se could not be sufficient to conclude that he
had caused her death.”
[112] We have in our minds the standard of proof imposed on the
prosecution when relying wholly or substantially on circumstantial
evidence. In convicting based on circumstantial evidence, the
evidence must be that, if it is believed, there is no reasonable
alternative to the guilt of the accused. If it is anything less than this,
it is no case at all (Kartar Singh v. R). In Sunny Ang v. PP it was held
that:
“… Adding them together, considering them, not merely
each one in itself, but altogether, does it or does it not lead
you to the irresistible inference and conclusion that the
accused committed this crime?... The prosecution case is
that the effect of all this evidence drives you inevitably
and inexorably to one conclusion and one conclusion only;
that it was the accused who intentionally caused the death
of this young girl.”

58
[113] The proposition is that the circumstantial evidence, taken
together must irresistibly lead to the conclusion that the accused
committed the offence. Any gap in the circumstances relied upon or
inconsistent with guilt would result in the prosecution not having
proceed its case beyond a reasonable doubt.
[114] Applying the principle as enunciated in the abovementioned
cases, we do not find the likes of compelling facts or evidence as can
be found in Sunny Ang, or as in Juraimi bin Hussin in our present
appeal. There was no evidence of any preparatory acts by the
appellant or any agreement formed between the appellant and Andrew
in conspiring to abet the commission of the act by PW 5. There is no
reliable incriminating circumstances that points irresistibly to the
guilt of the appellant in causing the death of the deceased. The best
evidence offered by the prosecution are the call logs which shows
communication allegedly between the appellant and Andrew, before
and after the time of the murder, which according to the prosecution
show the alleged involvement of the appellant to the plan to kill the
deceased. The absence of the conclusive evidence that the calls at the
material time were indeed made by the appellant to Andrew and the
absence of the contents of the call logs raised conjectures,
speculations and doubts in our mind with regards to P 84 and P85, to
form the view that these calls are the circumstantial evidence which
proved the involvement of the appellant to the murder.
The alleged motive for the killing of the deceased
[115] In cases which relied solely on circumstantial evidence, it is an
essential factor that motive ought to be considered. In the case of Lim
Hean Chong @ Teo Heam Chong @ Teo Hean Chong v. PP [2012] 1
MLJ 1049 the Court of Appeal in its judgment said that:

59
“Where the prosecution’s case is based solely on circumstantial
evidence, motive is important in such cases to tilt the scale
against the accused. Throughout the trial, the only motive
suggested by the Prosecution for the killing of the deceased was
that the Appellant had been angry because he was not happy
with one of the coins he had purchased. A suggestion was not an
evidence. Hence the Prosecution has not established the motive
for killing of the deceased.”
In Ratanlal and Dhirajlal Law of Crimes (24th
Edition Vol 22 at page
1448 the learned author said that:
“Ordinarily, when there is sufficient, direct and
circumstantial, evidence connecting the accused with the
commission of the offence the proof of motive becomes
unimportant. But where the entire prosecution case rests
on the circumstantial evidence, motive undoubtedly plays
an important part in such cases to tile the scale against the
accused.”
[116] The defence submitted that there was no motive established by
the prosecution for the appellant to kill the deceased. It was the
learned trial Judge’s findings that the appellant was dependent
financially on the deceased and hence when the appellant could not
afford to lose this privilege, the murder plan was initiated. However
we find that the findings of the learned trial Judge was against the
weight of the evidence. It was in evidence by PW 18 that both the
deceased and the appellant had agreed to go for a divorce. Hence it is
no longer an issue as both have agreed to go separate ways and lead
their lives after the divorce proceedings. The impending divorce
cannot be a reason for the killing of the deceased. In any event, this
was merely the opinion of PW 21, the investigation officer, which is
unsubstantiated.

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