Ling Hang Tsyr

[2019] MLRAU 340 v. PP pg 1

LING HANG TSYR

v.
PP

Court Of Appeal, Putrajaya

Zabariah Mohd Yusof, Suraya Othman, Kamaludin Md Said JJCA
[Criminal Appeal No: Q-05(M)-501-11/2017]
8 October 2019

Case(s) referred to:

Bapoo v. Rex [1934] 1 MLRH 81; [1935] 1 MLJ 19 (refd)
Chandrasekaran & Ors v. PP [1970] 1 MLRH 37; [1971] 1 MLJ 153 (refd)
Dato' Mokhtar Hashim & Anor v. PP [1983] 1 MLRA 7; [1983] 2 MLJ 232;
[1983] CLJ (Rep) 101 (refd)
Faguna Kanta Nath v. State of Assam AIR 1959 673 (refd)
Farose Tamure Mohamad Khan v. Public Prosecutor and other appeals [2016] 6
MLRA 337; [2016] 6 MLJ 277; [2016] 9 CLJ 769; [2016] 6 AMR 1 (refd)
Hui Chi-Ming v. R [1991] 3 All ER 897 (refd)
Hussain Umar v. Dalipsinghji AIR [1970] SC 5 (refd)
Idris v. PP [1960] 1 MLRA 265; [1960] 1 MLJ 296 (refd)
Johnson Tan Han Seng v. PP [1977] 1 MLRA 290; [1977] 2 MLJ 66 (refd)
Juraimi Husin v. PP [1997] 2 MLRA 342; [1998] 1 MLJ 537; [1998] 2 CLJ 383
(refd)
Kee Kim Chooi v. PP [1952] 1 MLRH 138; [1952] MLJ 180 (refd)
Krishna Rao Gurumurthi v. PP & Anor Appeal [2009] 1 MLRA 23; [2009] 3 MLJ
643; [2009] 2 CLJ 603 (refd)
Lim Hean Chong @ Teo Heam Chong @ Teo Hean Chong v. PP [2012] 3 MLRA
567; [2012] 1 MLJ 1049; [2012] 2 CLJ 1046 (refd)
Long Samat & Ors v. PP [1974] 1 MLRA 412; [1974] 2 MLJ 152 (refd)
Namasiyiam & Ors v. PP [1987] 1 MLRA 73; [1987] 2 MLJ 336; [1987] CLJ
(Rep) 241 (refd)
Noor Mohammad Mohd Yusuf Momin v. The State of Maharashtra AIR [1971]
SC 885 (refd)
Pang Chee Meng v. PP [1991] 1 MLRA 608; [1992] 1 MLJ 137; [1992] 1 CLJ 265
(refd)
Periasamy Sinnapan v. Pendakwa Raya [1996] 1 MLRA 277; [1996] 2 MLJ 557;
[1996] 3 CLJ 187; [1996] 2 AMR 2511 (refd)
PP v. Datuk Haji Harun Haji Idris & Ors [1977] 1 MLRH 438; [1977] 1 MLJ 180
(refd)
PP v. Hanif Basree Abdul Rahman [2008] 1 MLRA 220; [2008] 3 MLJ 161; [2008]
4 CLJ 1; [2004] 5 AMR 204 (refd)
PP v. Sarjit Kaur [1997] 4 MLRH 685; [1998] 1 MLJ 184; [1998] 5 CLJ 609 (refd)
PP v. Tiong King Guan & Anor [2015] 3 MLRA 180; [2015] 4 MLJ 235; [2015] 3
CLJ 48 (refd)
PP v. Yeo Choon Poh [1993] SGCA 76 (refd)
Quek Hock Lye v. Public Prosecutor [2012] SGCA 25 (refd)
 Ling Hang Tsyr
pg 2 v. PP [2019] MLRAU 340

Ramalingam Ravinthran v. Attorney-General [2012] SGCA 2 (refd)

Sunny Ang v. PP [1965] 1 MLRA 38; [1967] 2 MLJ 195 (refd)
Suresh v. State of Uttar Pradesh AIR [2001] SC 1344 (refd)
Thiruselvam Nagaratnam v. PP [2001] SGCA 13 (refd)
Virsa Singh v. State of Punjab AIR [1991] SC 467 (refd)
Wong Kok Keong v. Regina [1954] 1 MLRH 325; [1955] 21 MLJ 13 (refd)

Legislation referred to:

Customs Enactment, s 119
Criminal Procedure Code 1969 , ss 112, 177A, 376(1), 422, 425
Evidence Act 1950, ss 8(1), 30, 32, 60, (1)(b)
Penal Code [Ind], ss 34, 109
Penal Code 1982, ss 19, 34, 107(b), (c), 109, 120A, 300(c), 302

Counsel:
For the appellant: Lim Heng Choo (Roger Chin & Steven Sia with him); M/s Lim
& Lim Advocates
For the respondent: Tengku Intan Suraya Tengku Ismail; Attorney General's
Chamber
Watching Brief for Deceased's family: Christina Teng

[Appeal allowed.]

Case Progression:
High Court: [2017] MLRHU 1693

JUDGMENT

Kamaludin Md Said JCA:

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 June 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 s 19 and
302 of the Penal Code read together with s 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 s 302/109
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 3

read together with s 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.

[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 June 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 June 2012. PW 5 said he was also instructed
by Andrew 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.
 Ling Hang Tsyr
pg 4 v. PP [2019] MLRAU 340

[11] PW 5 was arrested by the police subsequently.

The Charge

[12] Initially, PW 5, Andrew and the appellant were altogether charged under
s 302 of the Penal Code (PC) read with s 34 of the same. However, pursuant to
a letter of representation by PW 5 to the Attorney General's Chambers, the
prosecution on 1 October 2013 offered PW 5 an alternative charge under s 304
(a) PC which reads:

"That you, on the 14 June 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, 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 (8101110-135215) caused the death of
Wong Jing Kui (8101110-135215), with the intention of causing death
and that you have thereby committed an offence of culpable homicide
not amounting to murder punishable under s 304(a) of the Penal
Code."

[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 s 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 s 304 (a) PC against
Andrew and the appellant in the Sessions Court, which reads as follows:

"That you jointly, on 14 June 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, by way of conspiracy abetted one LING HOE ING (881018-
13-5871) in the commission of culpable homicide not amounting to
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 5

murder of one WONG JUI KUI (810119-13-5215), which offence was

committed in consequence of your abetment and that you have
thereby committed an offence punishable under s 109 and s 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 September 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 June 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 s 19 and
302 of the Penal Code read together with s 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 s 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 learned JC on 26
February 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 s 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 s 304(a) read with s 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 February
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
 Ling Hang Tsyr
pg 6 v. PP [2019] MLRAU 340

High Court Judge on 23 October 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 s 302 PC before another
Judge.

(The judgment of the Court of Appeal is reflected in PP v. Tiong King Guan &
Ling Hang Tsyr [2015] 3 MLRA 180; [2015] 4 MLJ 235; [2015] 3 CLJ 48)

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 s 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 p 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 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 June 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
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 7

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 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 ie to kill the deceased.
 Ling Hang Tsyr
pg 8 v. PP [2019] MLRAU 340

(v) The appellant had motive to have the deceased killed ie the
impending divorce case and the insurance policies.

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 (p 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 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 June 2012 at 2.05 am.,
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 am. - 1.00 am. 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 am.

[26] Based on the circumstantial evidence, the learned trial Judge held that
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 9

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 s 19 and 302 of the Penal
Code read together with s 34 of the same, and ordered the appellant to enter
her defence.

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 June 2012 before the day of the murder, she was doing her usual
errands and reached home at 8.30 pm. before preparing for bed at 10 pm. 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.

[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
 Ling Hang Tsyr
pg 10 v. PP [2019] MLRAU 340

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 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 am. -1.21 am., then the deceased
would not be sleeping when PW 5 entered the master bedroom between 12.00
am. - 1.00 am. 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 am. to 1.00 am., 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, ie 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 am. - 1.00 am. on 14 June 2012. The learned Judge
held that if the murder took place after 1.21 am. (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 am. (which is 40
minutes after 1.21 am., assuming that the time of death is 1.21 am.).
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
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 11

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 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 p 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.

[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 s 302 of the PC read together with s 34 and sentenced to
death.
 Ling Hang Tsyr
pg 12 v. PP [2019] MLRAU 340

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
s 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;

(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 s 107(b) punishable under s 109 in the murder of the
deceased (under s 302) read together with s 34 of the PC.

[44] The appellant contended that the charge against her for murder under s
302 is defective and incurable under s 422 of the CPC by virtue of the
conviction of the principal offender (PW 5) who pleaded guilty to a lesser
offence under s 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.

[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

 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 13

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 art 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] 1 MLRA 290; [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 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] 1 MLRA 412; [1974] 2
MLJ 152. In this case, the Federal Court viewed art 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
 Ling Hang Tsyr
pg 14 v. PP [2019] MLRAU 340

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 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 [1934] 1 MLRH 81; [1935] 1 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 897 referred to by this Court in
Public Prosecutor v. Tiong King Guan & Anor [2015] 3 MLRA 180; [2015] 4
MLJ 235; [2015] 3 CLJ 48. 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).
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 15

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 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 MLRH 138;
[1952] MLJ 180 where Thomson J clearly held that abetment of an offence is a
distinct offence from the offence itself punishable under s 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 s 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 s 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] 1 MLRA
277; [1996] 2 MLJ 557; [1996] 3 CLJ 187; [1996] 2 AMR 2511, preferred to
follow Faguna Kanta Nath, when it held at p 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 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 v. PP [1952] 1 MLRH 138; [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,
 Ling Hang Tsyr
pg 16 v. PP [2019] MLRAU 340

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 s 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 s 109 read with s 302 together with s 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 s 304(a) of the PC in an earlier trial.

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 s 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

 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 17

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

(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 [1970] 1 MLRH
37; [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 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.
 Ling Hang Tsyr
pg 18 v. PP [2019] MLRAU 340

(See Public Prosecutor v. Datuk Haji Harun bin Haji Idris & Ors [1977] 1 MLRH
438; [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 s 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
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 s 120B and abetment

by way of conspiracy under s 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."

[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
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 19

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 s 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 s 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]S 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] 1 MLRA 23; [2009] 3 MLJ 643; [2009] 2 CLJ 603). Common
intention as distinguished from the same or similar intention 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] 1 MLRA 73; [1987] 2 MLJ 336; [1987] CLJ (Rep) 241). 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] 1 MLRA 7; [1983] 2 MLJ 232;
[1983] CLJ (Rep) 101). 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 MLRA 337; [2016] 6 MLJ 277; [2016] 9 CLJ 769;
[2016] 6 AMR 1 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 hat 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, s 34 can operate against all persons involved in the
 Ling Hang Tsyr
pg 20 v. PP [2019] MLRAU 340

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.

[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 s 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 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, eg a coaccused,
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-
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 21

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 s 34 of the PC. Although the learned trial Judge addressed the
circumstantial evidence which she found to LINK the appellant to the murder
(at pp 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
June 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:
 Ling Hang Tsyr
pg 22 v. PP [2019] MLRAU 340

[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 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 am. - 1.00 am. It was also the evidence of PW 5 that by 1 am. 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 am. - 1.21 am. as she
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 23

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 am. - 1.21
am. 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 because, to accept the suggestions by the defence
that it was the deceased who was talking or texting to Andrew between 12.40
am.- 1.21 am., would be contradicting with the evidence of PW 5 that he had
entered the house between 12.00 am. - 1.00 am. and that by 1.00 am. 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 am. It is therefore safe to infer that the killing was committed between
12.30 am. or 12.50 am. 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 am. - 1.21 am., 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 am. - 1.00 am.), 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, ie that the
deceased was making calls to Andrew even at 1.21 am., surely around 12.30
am. - 1.21 am. 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 am. to 1.21 am.!

[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 during the time from 12.40 am.
- 1.21 am., 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 am.- 1.21 am.
on 14 June 2012, show that the appellant was very busy communicating with
 Ling Hang Tsyr
pg 24 v. PP [2019] MLRAU 340

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
am. until 1.21 am. communicating with Andrew. This would mean that at the
time when PW 5 entered the bedroom around 12.40 am. 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 am.- 1.00 am., 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 am. - 1.21 am. 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 am. - 1.21 am.
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 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 [1991] 1 MLRA 608; [1992] 1 MLJ 137;
[1992] 1 CLJ 265).

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 murder was already
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 25

done with at 1.00 am. 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 (p 912 of RR Jilid 3 (1)) which show calls made by PW 5 to
Andrew from 12.50 am. until 2.30 am. There is the evidence of PW 21, the
investigating officer (p 542 RR Jilid 2 (1)) who said that Andrew
communicated with PW 5 in the early morning of 14 June 2012. It was also
suggested by the defence that the call logs at the time between 12.50 am. to
2.00 am on 14 June 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 June 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 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 p 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 p 912 RR Vol 3 (1) proved there was an SMS sent out from PW 5's
hand phone to Andrew's on 14 June 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 ie 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 para 78 of this judgment).

[84] There is clear evidence that Andrew hired PW 5 to kill the deceased and
 Ling Hang Tsyr
pg 26 v. PP [2019] MLRAU 340

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 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 am. - 1.21 am. 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 s 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 prosecution's
case under s 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.
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 27

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 s 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.

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 s 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. S 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 s 112 of the CPC. The
requirements under s 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 s 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 s 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 Judge did not state
expressly in the grounds of her judgment that she took into account P 98 in
 Ling Hang Tsyr
pg 28 v. PP [2019] MLRAU 340

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." (p
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. Regina [1954] 1 MLRH 325; [1955] 21 MLJ 13). In
Juraimi bin Husin v. PP [1997] 2 MLRA 342; [1998] 1 MLJ 537; [1998] 2 CLJ
383, 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.

[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 s 60 of the Evidence Act is that the accused
who told Andrew that the back doors were unlock.

......
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 29

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 s 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;

(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 s 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 s 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 s 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 am.- 1.00 am. on 14 June
2012, the back door and the 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
 Ling Hang Tsyr
pg 30 v. PP [2019] MLRAU 340

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 June 2012

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 (p 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 am. - 1.00 am. 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 am, the deceased was already stabbed thus negating the story
of the defence that it was the deceased talking or making calls to
Andrew after 1.00 am.

(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
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 31

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 June 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. 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 June 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 the evidence of PW 5 is that the appellant and her
 Ling Hang Tsyr
pg 32 v. PP [2019] MLRAU 340

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 evidence adduced by PW 5 as to what happened
between 12.40 am. - 1.00 am. 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 MLRA 265; [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
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 33

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 [1997] 4 MLRH 685; [1998] 1 MLJ 184; [1998] 5 CLJ 609) and PP v.
Hanif Basree bin Abdul Rahman [2008] 1 MLRA 220; [2008] 3 MLJ 161;
[2008] 4 CLJ 1; [2004] 5 AMR 204).

[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 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
[1965] 1 MLRA 38; [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;

(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
 Ling Hang Tsyr
pg 34 v. PP [2019] MLRAU 340

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
bin Husin & 2 others v. PP [1997] 2 MLRA 342; [1998] 1 MLJ 537; [1998] 2
CLJ 383. 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 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

[1997] 4 MLRH 685; [1998] 1 MLJ 184; [1998] 5 CLJ 609 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;

 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 35

(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;

(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] 1 MLRA 220; [2008] 3 MLJ
161; [2008] 4 CLJ 1; [2004] 5 AMR 204, 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.

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
 Ling Hang Tsyr
pg 36 v. PP [2019] MLRAU 340

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."

[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] 3 MLRA 567; [2012] 1 MLJ
1049; [2012] 2 CLJ 1046 the Court of Appeal in its judgment said that:

"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
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 37

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 p 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.

[117] The learned trial Judge had made perverse findings of facts that the
appellant was a beneficiary to a few insurance policies when the prosecution's
evidence shows that there was no admissible or credible evidence to support
such findings. The prosecution failed to prove that the appellant benefitted
financially after the death of the deceased. The evidence shows upon the death
of the deceased, the appellant did not inherit any money from the insurance
policies bought by the deceased. The evidence of PW 22, an insurance agent
said that the appellant did not benefit a single cent from the insurance policies
that the deceased took. As for the matrimonial home, it was purchased with
the down payment paid by the appellant from the money gifted by her father
(DW 2). The house was already in the name of the appellant. It was the
appellant who has been paying the installments of the house. The house had to
be sold as there is no one going to pay for the monthly installments for the
loan as the appellant was already arrested after the murder of the deceased.
Similarly with the car, after the appellant was arrested, she could no longer
serviced the loan, hence the car was repossessed. Therefore the learned trial
Judge made erroneous findings when she found that the fact the matrimonial
home and the car had to be sold or repossessed was because the appellant was
dependent on the deceased financially.

[118] There was also the oral evidence from PW 22 that the appellant
submitted a claim for one of the insurance policies which was put on hold
pending the disposal of this criminal case against the appellant. However, this
was not supported by any documentary evidence as the appellant categorically
 Ling Hang Tsyr
pg 38 v. PP [2019] MLRAU 340

denied that she did submit a claim.

[119] Therefore there is absolutely no motive established by the prosecution as

to why the appellant would want the deceased dead.

[120] As to the conduct of the appellant after the deceased was stabbed, which
the learned trial Judge found operates against the appellant; we are of the view
that conduct per se does necessarily point to the guilt of the appellant.
Different people react differently to a given situation, especially after seeing the
deceased soaked in blood. Although conduct of accused persons after an
offence has been committed may be relevant towards proving the commission
of a particular offence under s 8(1) of the EA, such conduct could also be
inferred that the appellant was in a state of shock and stunned that she was not
able to think straight at that precise moment. The benefit of the doubt should
be given to the appellant. The fact that she only called the ambulance and her
in laws later cannot be viewed as against the appellant. That by itself cannot be
taken as proof of her participation/involvement in causing the death to the
deceased.

Section 300 PC

[121] We observe that both parties did not address us on the ingredients of the
murder charge which falls under s 300 PC which is the charge against the
appellant. Neither did the learned trial Judge. It was an oversight on all parties
that apart from proving the abetment offence, the ingredients of the murder
offence need also to be proven. Nevertheless, for completeness, we find it
necessary to address it in this judgment.

[122] The thrust of the prosecution case were clear that the act of the murder
was committed with the intention to inflict a particular bodily injury, namely,
the stab wounds to the chest and neck. Under s 300 PC it is incumbent on the
prosecution to prove the following ingredients:

(i) That the deceased has died;

(ii) That the accused inflicted the injuries which caused the death of
the deceased;

(iii) That the injury inflicted by the accused on the deceased fall under
any of the limbs of s 300 of the PC;

(iv) The necessary mental element.

All the above is not challenged and it is not in dispute that PW 5 committed
the act of killing the deceased.

From the facts, the act of PW 5 was committed with the intention to inflict a
particular bodily injury, namely stab wounds to the neck and chest. From the
evidence of PW 6, the pathologist, she said that this injury have features of
injuries caused by a sharp and pointed object such as a knife. There were about
 Ling Hang Tsyr
[2019] MLRAU 340 v. PP pg 39

23 stab wounds on the body of the deceased, the ones fatal are the neck and
the chest injuries.

[123] The features of the injuries suggested that the knife used was a double
edged blade meaning both sides are sharp. The neck injury which is caused by
stab wounds has injured one of the blood vessel on left side of the neck which
led to blood loss, while the chest injury had injured the ribs and also the left
lung. Both of these injuries can cause bleeding into the chest cavity. The injury
to the lung caused it to collapse subsequently. This could impair the breathing
of the deceased which also could led to his death. There was evidence of
bleeding on the inner wall of the heart which also suggested that the deceased
had loss substantial amount of blood that could have led to his death. PW 6
came to the opinion that the neck and the chest injuries due to the stab wounds
were the ones that led to his death.

[124] Based on the evidence of PW 6, clearly the stab wound to the chest and
the neck of the deceased fall within the ambit of s 300(c) PC. Hence, we are
satisfied that the prosecution had proved that:

(i) a bodily injury was present (evidence of PW 6);

(ii) the nature of the bodily injury sustained by the deceased (evidence
of PW 6);

(iii) There was an intention to inflict a particular bodily injury, it was

not accidental or unintentional, or that some other kind of injury was
intended.

(The evidence of PW 5 was clear the intention in inflicting the bodily

injury was to cause death to the deceased);

(iv) The bodily injury is sufficient in the ordinary course of nature to

cause death (evidence of PW 6).

As the above 4 elements are satisfied, the offence committed falls under s 300
(c) PC (Refer to Virsa Singh v. State of Punjab AIR [1991] SC 467).

[125]Albeit in light of the charge against the appellant (which is abetment by

conspiracy with Andrew to the act of PW 5), and the absence of evidence to
LINK the appellant to the act of murder by PW 5 of the deceased, the charge
of abetment and conspiracy to murder against the appellant cannot stand.

E. Conclusion

[126] The learned trial Judge acknowledged that the case for the prosecution
has no direct evidence but is based on circumstantial evidence. The
circumstantial evidence relied upon by the learned trial Judge, which in our
view, cumulatively, does not lead to the irresistible conclusion that the
appellant together with Andrew abetted PW 5 in the commission of the crime
by way of conspiracy in pursuant of a common intention to kill the deceased.
 Ling Hang Tsyr
pg 40 v. PP [2019] MLRAU 340

There was no evidence of any pre arranged plan or a meeting of the minds
between the appellant and Andrew. There is no evidence of any common
intention, least of all, conspiracy to abet the commission of the act of murder
by PW 5. We are of the view that the circumstantial evidence (after we had
excluded inadmissible confession of Andrew and hearsay evidence) relied on
by the prosecution is insufficient to form a noose strong enough to hang the
appellant. The circumstantial evidence raised suspicion and doubts which are
unsafe to form a conviction under the charge of murder.

[127] In appraising the evidence of the prosecution and the defence, we found
that there is appealable error on the part of the learned trial Judge. The
appellant has successfully raised reasonable doubt on the prosecution's case.
We found that it is not safe to convict the appellant on the charge under s 302
read with s 34 and 109 of the PC. We therefore allow the appeal by the
appellant. The conviction and sentence by the learned trial judge is set aside.
The appellant is acquitted and discharged from the charge preferred against
her.