[2010] 4 MLJ Low Kian Boon & Anor v Public Prosecutor (Heliliah FCJ) 425 A Low Kian Boon & Anor v Public Prosecutor B FEDERAL COURT (PUTRAJAYA) — CRIMINAL APPEAL NO 05–27 OF 2009 (B) RICHARD MALANJUM CJ (SABAH AND SARAWAK), JAMES FOONG AND HELILIAH FCJJ 17 MARCH 2010 C D E F G H I Criminal Law — Penal Code — s 302 — Murder — Appeal against conviction and sentence — Whether High Court judge erred in evaluation of circumstantial evidence as opposed to defence raised by appellants — Whether there were material flaws in prosecution’s case — Whether High Court judge properly addressed issue of common intention Evidence — Circumstantial evidence — Murder — Conviction sustained on circumstantial evidence — Whether trial judge erred in evaluation of circumstantial evidence as opposed to defence raised by appellants On the night of 11 November 2003, when the deceased went to investigate the intruders in his second daughter’s room he was attacked by one of two assailants carrying a parang. The deceased’s wife who had locked herself in their bedroom called for help from their bedroom window. She only opened the door ten minutes later when she heard her third daughter, who was sleeping in her own room, call to her. The deceased’s wife and her third daughter then ran downstairs to see the deceased lying on the floor in a pool of blood. The pathologist who performed the post-mortem on the deceased testified that the cause of death was the multiple cut wounds to the head and neck. According to the pathologist the cut wounds were caused by a sharp cutting, long bladed weapon which in his opinion was a parang. On 12 November 2003, police found a blood stained parang on the window ledge in the second daughter’s room and the blood stains on the parang matched those of the deceased. The deceased’s second daughter was not in her room at the material time, but had stolen out of the house to meet a few friends in a nearby coffee shop. There was incontrovertible evidence that Low Kian Boon (‘the first appellant’) and Tan Pei Yan (‘the second appellant’), the fourth child of the deceased, were in the vicinity of the deceased’s house between 12.10am and 12.30am on 12 November 2003, because the first appellant was seen by a prosecution witness who was on his way to the deceased’s house to meet the deceased’s daughters; and the first and second appellant were later both picked up from a Shell station about 1000 metres from the deceased’s house by a group of friends in their car. When the appellants were picked up from the petrol station they were wearing blood