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[2010] 4 MLJ A B C D E F G H I Low Kian Boon & Anor v Public Prosecutor (Heliliah FCJ) 477 One of the arguments advanced on behalf of the second appellant was that s 34 could only be applied if the common intention of the accused was to commit the offence with which they were charged. In other words, the second appellant could not be found guilty of an offence under s 302 of the Penal Code unless the common intention of the appellants was to cause the death of the deceased, or was such other intention as is mentioned in s 300 of the Code. The court had no difficulty in rejecting this argument and held that s 34 had been properly applied vis-à-vis the second appellant. In Neoh Bean Chye, the first appellant knew that the second appellant had a loaded revolver and that it would be used, if necessary, during the course of the robbery. He himself had loaded the gun and handed it to the second appellant who shot the deceased when he offered resistance during the robbery. The first appellant’s conviction for murder under s 302 read with s 34 of the Penal Code was upheld by the court. On this view, all that it is necessary for the prosecution to prove is that there was in existence a common intention between all the persons involved to commit a criminal act and that the act which constituted the offence charged (the ‘criminal act’ referred to in s 34 of the Penal Code) was committed in furtherance of that criminal act. The rider to this is that the participants must have some knowledge that an act may be committed which is consistent with or would be in furtherance of, the common intention. Support for this approach may be found in the words of Desai J in Bashir v State of Allahabad AIR 1953 All 668 at p 672: These words (‘in furtherance of the common intention’) were added by the Legislature in 1870 and must have been added for a purpose. That purpose could be none other than to make persons, acting in concert, liable for an act, which is not exactly the act intended by them, but has been done in furtherance of their common intention. The words would not have been required at all if the common intention implied an intention to do the very criminal act done. It will be recalled that Lord Sumner had made the same point in Barendra Kumar Ghosh. Applying this test to Neoh Bean Chye, the offence for which the appellants were ultimately charged murder was done in furtherance of their common intention to commit a criminal act (robbery); they also knew that the victim might be shot if he offered any resistance. They were clearly guilty of an offence under s 302 read with s 34 of the Penal Code. A note of caution must be sounded before we move on the second element of s 34. Common intention means a prior meeting of the minds and must be distinguished from same or similar intention. In Mahbub Shah, the appellant and one Wali Shah were out shooting game when they heard shouts for help from one Ghulam Quasim Shah who was being attacked by the deceased, Alla Dad. (Ghulam had tried to get back from Alla Dad the reeds which the latter had unlawfully taken from the lands of Ghulam’s uncle). Wali Shah in trying to rescue Ghulam shot and killed Alla Dad while the appellant injured one Hamidullah Khan. Both the appellant and Wali Shah were convicted under s 302 read with s 34. The Privy Council in allowing the appeal, said that while the appellant and Wali Shah had the same or similar intention to rescue Ghulam by using their guns if necessary, there was no evidence that the killing of Alla Dad was in furtherance of a common intention. Sir Madhavan Nair said at p 121 of the report:

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LOW KIAN BOON

CASE BRIEF

Jurisdiction

Malaysia

Nationalities

Malaysian

Case Title: Low Kian Boon (Federal Court Criminal Appeal No. 05-27-2009(B))

Age at Offence: 18

Age Group at Offence: Adult (18 to 59)

Gender: Male

Religious Group at Offence: Unknown

Vulnerable/ Marginalised Group

Socio-economic Status

Jurisdiction - Geolocation

Latitude: 4.2105

Longitude: 101.9758

Jurisdiction - Geolocation (linked CASE BRIEF): Malaysia

Contributing TRP Partner

Malaysian Centre for Constitutionalism and Human Rights (Malaysia)

Latest Country's Death Penalty Status

Retentionist

Case Current Status: Closed: Commuted

Year when sentenced to Death Row: 2000s: 2009

Rights Allegedly Violated

Torture: Death row phenomenon

Nature of Offences for Death Penalty

Murder: Single Victim

Case Background (300 words max): Low was charged with one charge for murder under section 302 of the Penal Code, 18 years old at the time of the offence. He was initially charged with three other children for the offence of murder at the Shah Alam High Court. At the end of the prosecution case, the High Court found that a prima facie case was established against the Applicant (who was the 1st accused) and the 4th Child (“second appellant”)but not against the 2nd and 3rd Child.

This charge was for the murder of the 2nd and 3rd child’s stepfather (“the deceased”), who was found dead in his home on November night in 2003, with 23 slash wounds, including a fatal cut at the base of his neck. The deceased was attacked when he went to investigate the intruders found in the daughter’s bedroom.

The prosecution’s case relied on circumstantial evidence, showing that both accused had purchased the murder weapon (a parang), were seen near the crime scene, and were later found wearing blood-stained clothes. Additionally, the second appellant allegedly confessed to accidental murder but had no intention to cause death, while speaking to friends who picked them up after the murder happened.

Initially, the High Court convicted them of the lesser charge of culpable homicide not amounting to murder under Section 304(b) of the Penal Code, sentencing them to 10 years in prison. However, the Court of Appeal overturned the High Court’s decision, reinstating the original murder charge under Section 302, which carries the mandatory death penalty. The Court of Appeal’s decision was affirmed by the Federal Court.

Following the Applicant’s resentencing hearing on 27 March 2024, his death sentence was set aside and substituted with an imprisonment term of 35 years from the date of his arrest (in 2003).

Defence Arguments (200 words max.): Initially, Low had testified that purchasing the murder weapon and the plan to help the daughter by murdering the deceased was orchestrated by a gang member named ‘Ivan’, which was backed by the narrative of the second appellant. He had denied committing the crime, and was never inside the house of the deceased.

During the appeal, they had further submitted that there were discrepancies in the evidence of the prosecution witness. There were material flaws in the case for the prosecution emerging from the questionable evidence, such as the T-shirt seized from Low’s flat, and the parang from the deceased house, and from the infirmities in the conduct of the identification parade and in the alleged failure to call several witnesses; and whether the High Court judge had properly addressed the issue of common intention.

In the appeal in Federal Court, defense had also attempted to detract the admission made by the second appellant to his friends, suggesting that the friend was not a credible witness and may some grudge against the second appellant.

In his resentencing application, the applicant’s age at the time he committed offense was emphasised - 18 years 6 months, to consider he is still relatively young (only exceeded age of majority by 8 months). He can be regarded as a youthful offender within the definition provided in the CPC (18 to 21 years old). The application also cited Rajendra Prasad v State of Uttar Pradesh (1980) 1 MLJ (Crl)143, [Tab 5 ABOA] from the Indian Supreme Court, to give emphasis in subtituting death penalty to a life imprisonment involving 3 murders. Emphasis wass added to the lack of intention to murder, existing prospect and rehabilitation reform written by a probation officer. There were reasons for him wanting to resit Sijil Pelajaran Malaysia (SPM) and wanting to continue Sijil Tinggi Pelajaran Malaysia (STPM) but was unable to do so after his transfer to the death row block. He also utilised the limited time (an hour a day) to learn about the Muslim faith, and adopted the faith thereafter. He was also trusted and was given responsibilities in his cell blocks, actively taking part in programmes. Other notes were on him suffering from the death row phenomenon, clemency petition and sentencing trend to showcase that his case is not of the rarest of rare category.

Judgement with Headnotes (200 words max): The trial judge in High Court held that the appellants had no intention to kill the deceased, and as such, they could not be guilty of murder under s302 of the Penal Code. He instead found them guilty of the lesser offence of culpable homicide not amounting to murder under the second limb of s304 of the Code and sentenced them to imprisonment for a period of 10 years to take effect from date of arrest. The Court of Appeal found that taking into account the element of premeditation, nature of weapon used and the nature of injuries inflicted on the deceased, which included a savage attack, and all other surrounding circumstances the irresistible conclusion to arrive at was that both appellants intended to kill the deceased.

The federal court dismissed the appeal, stating that 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. The court found no merit or basis to the defense arguments.

Legal Representation Received

Appeal: Pro bono
Second Appeal: Pro bono
Pre-trial: Unknown
Trial: Unknown

Legislation Related to the Offence(s): Section 302 of the Penal Code for murder

Judicial Precedents: The case of Low Kian Boon & Anor v. Public Prosecutor set significant judicial precedents in Malaysian criminal law, particularly regarding murder convictions based on circumstantial evidence, common intention, and sentencing considerations. The courts reaffirmed that murder can be proven beyond a reasonable doubt using circumstantial evidence alone, provided that the evidence leads to only one logical conclusion—that the accused committed the crime. This follows the principle established in Mat v. Public Prosecutor [1963] MLJ 263, which held that circumstantial evidence must be compelling and point conclusively to the accused’s guilt. Additionally, the case reinforced the doctrine of common intention under Section 34 of the Penal Code, holding that when multiple people act together to commit a crime, all can be held equally responsible, even if it is unclear who inflicted the fatal blow. This principle follows Koay Teng Soon & Anor v. Public Prosecutor [2000] 2 MLJ 219, where the court ruled that common intention does not require each accused to carry out the act but only to be part of the plan leading to the crime.

Another crucial precedent set by this case relates to reducing a murder charge to culpable homicide under Section 304 of the Penal Code. The High Court initially reduced the charge, but this was later overturned, with the Court of Appeal emphasizing that such a reduction is only justified if there are mitigating factors such as provocation, lack of intent, or diminished responsibility. This ruling aligns with Tan Bok Yeng v. Public Prosecutor [1972] 1 MLJ 214, which clarified that if an attack involves excessive and deliberate violence, the accused cannot claim lack of intent. Moreover, the case established an important precedent regarding sentencing, where the court rejected arguments for leniency based on the youth of the accused. It was emphasized that while juvenile offenders are often given lighter sentences, this does not apply to premeditated and violent crimes. This follows the ruling in Public Prosecutor v. Loo Choon Fatt [1976] 2 MLJ 256, which held that public interest outweighs personal circumstances in sentencing for serious crimes.

Ultimately, this case strengthened Malaysia’s legal standards for convicting individuals based on circumstantial evidence, reaffirmed the doctrine of common intention in joint criminal acts, and clarified that young offenders will not automatically receive reduced sentences for heinous crimes.