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[2010] 4 MLJ A B C D E F Low Kian Boon & Anor v Public Prosecutor (Heliliah FCJ) 459 confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. On the type of witnesses who must be called by the prosecution, Lord Roche said in the same case at p 49: … Witnesses essential to the unfolding of the narratives on which the prosecution is based, must, of course, be called by the prosecution whether in the result the effect of their testimony is for or against the case for the prosecution. Thus, an adverse inference for not calling a witness cannot be drawn if there is sufficient other evidence to support the prosecution case (see (1) Namasiyiam (2) Rajindran (3) Goh Chin Peng, and (4) Ng Ah Kiat v Public Prosecutor [1987] 2 MLJ 336). No adverse inference can also be drawn when a witness has been offered for cross-examination (see Saw Thean Teik v Regina [1953] MLJ 124) or has been made available to the defence and the defence did not call the witness (see Public Prosecutor v Chee Kon Fatt [1991] 3 CLJ 2564). If a witness had been made available to the defence, there can be no suggestion, as stated by Lord Thankerton in the case of Adel Muhammed el Dabbah v Attorney General for Palestine, ‘… that the prosecutor has been influenced by some oblique motive’ (see Samsudin v Public Prosecutor [1962] MLJ 405). However, where the prosecution evidence falls short of proving a prima facie case, the right of not calling a witness by merely offering him to the defence will not be available (see Abdullah Zawawi v Public Prosecutor [1985] 2 MLJ 16; Public Prosecutor v Chew Yoo Choi [1990] 2 MLJ 444; Teoh Hoe Chye v Public Prosecutor Yeap Teong Tean v Public Prosecutor [1987] 1 MLJ 220). However the presumption will arise where there is acute conflict on a material point in the evidence presented. In this regard Edgar Joseph Jr FCJ said in Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 MLJ 209 (FC) at p 220: G H We must add that, in a situation such as this, where there was an acute conflict of evidence on a material point, namely, the result of the search of the person of the accused, and a search list contemporaneously prepared by the police was presumably in existence, a copy thereof, ought, in all fairness, to be tendered in evidence or its non-production accounted for, the sanction for not doing so being the presumption, that if produced, it would have been unfavourable to the prosecution (see s 114(g) of the Evidence Act 1950). Instead, the judge did the opposite — he wrongly assumed that a copy of the search list was in evidence, and went on to presume that its contents supported the version of ASP Abdul Wahab. I [39] The drawing of an adverse inference would largely depend on the circumstances of the case. In Munusamy v Public Prosecutor [1987] 1 MLJ 492 (SC) at p 494 Mohamed Azmi SCJ (as he then was) stated:

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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.