468 Malayan Law Journal [2010] 4 MLJ 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 coincidences that, as a reasonable person, you find your judgment is compelled to one conclusion. If the circumstantial evidence is such as to fall short of that standard, if 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. A B [58] The question that is to be considered is can it be said that there has been occasioned a misdirection or that the decision of the HC judge as affirmed by the COA is plainly unsound. The answer is in the negative. C THE SECOND PRINCIPAL ISSUE: COMMON INTENTION [59] It is on this second principal issue that there is divergence between the HC and the COA. The COA held that the learned HC judge had ‘misdirected himself on facts and evidence and upon the law in holding that the lesser offence under s 304 had been committed’. [60] In delivering the judgment of the COA, Gopal Sri Ram JCA in the course of his judgment made references to the reasons advanced by the HC judge which the COA found became the central cause for the HC judge to reduce the charge to one under s 304 of the Penal Code. The HC judge had firstly stated: Based on the testimony of SP20, it is clear that there were only two persons inside the room of Sue Yin. In view of my finding that first accused and fourth child were inside the house of the deceased, and in the absence of evidence of any other intruders, I find that it was the first accused and fourth child who were inside Sue Yin’s room. Based on SP20’s evidence, it is clear that one of them had attempted to attack her when she opened the door of Sue Yin’s room. It is also my finding, that upon deceased going to investigate who the intruders were, he was attacked inside the room (of Sue Yin) by one of them with a parang. However, I am unable to determine, on the evidence, whether it was the first accused or the fourth child who attacked him. Nevertheless, it is obvious that at that stage there was no intention at all to kill the deceased, otherwise they would have pursued him to his bedroom, after the attack on him in Sue Yin’s room. Again, based on SP20’s testimony it is safe to infer, that because the deceased had not returned to Sue Yin’s room, but, instead, had run downstairs, he must have been aware that the first accused and fourth child were attempting to flee from the house, after the initial attack on him in Sue Yin’s room, without intending to cause him any further injury. Nevertheless, it would appear that the deceased was determined, either to apprehend them or put up a fight with them, in the belief, in all probability, that his superior physical build (117kg) in contrast to the puny size of the first accused and fourth child, would enable him to overpower them. Unfortunately, this must have triggered a further attack on the deceased downstairs, either by the first accused or the fourth child, when he attempted D E F G H I