[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
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