[2010] 4 MLJ
A
B
C
D
E
Low Kian Boon & Anor v Public Prosecutor
(Heliliah FCJ)
427
Court’s decision as affirmed by the Court of Appeal was primarily
attained on the acceptance of the evidence of several of the prosecution
witnesses. In the instant appeal, in which the conviction had been
sustained based on circumstantial evidence, the trial judge had given his
opinion of witnesses whom he had seen and if an appellate court wished
to reverse that, it must be convinced that the trial judge was wrong. In
the present appeal the defence had attempted to detract certain
admissions made by the second appellant to his friends when the
appellants were picked up at the petrol station, by suggesting that the
friend was not a credible witness in that he may bear some grudge
against the second appellant. If this were true then it was not in
consonance with the fact that the friend responded by giving the second
appellant assistance by fetching him from the petrol station (see paras
17–21, 28, 30).
(2) The second appellant attempted to create doubts in the prosecution
case by alleging that the T-shirt worn by him on the day of the incident
had no blood stains on it and that the police had not produced the right
T-shirt. However, the trial judge accepted the explanation of the police
officer who seized the T-shirt and concluded that there was no
confusion about the T-shirt. Neither was there any material flaw in the
trial judge’s finding on the parang, which was identified as the murder
weapon (see paras 31–34).
F
(3) No reasonable basis was detected for the identification parade to be
rejected since as the High Court judge had disclosed, the inference that
the appellants were the perpetrators was not founded primarily on the
identification parade (see paras 35–36).
G
(4) There was no merit in the argument that adverse inferences could be
drawn by the prosecution’s failure to call certain witnesses since the
audio visual advantage of the High Court judge provided him with the
basis of establishing the prima facie case. Hence there were no ‘gaps’ to
be filled in as they were not material (see para 40).
H
I
(5) Although the appellants alleged that Ivan was the key person behind the
commission of the murder, nothing had been raised about Ivan at the
stage of the cross-examination of the prosecution’s witnesses. Having
evaluated the evidence on record in its totality it was clear that the
alleged infirmities in the prosecution’s case were untenable (see paras 48,
52–53, 58).
(6) The trial judge had not properly considered the issue of common
intention under s 34 of the Penal Code. The trial judge’s conjectures led
to contradictions resulting in misdirection on the question of common
intention. Although the High Court judge ruled that the evidence
adduced by the prosecution led to the inference that the appellants were
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