[2010] 4 MLJ A B C D E Low Kian Boon & Anor v Public Prosecutor (Heliliah FCJ) 427 Court’s decision as affirmed by the Court of Appeal was primarily attained on the acceptance of the evidence of several of the prosecution witnesses. In the instant appeal, in which the conviction had been sustained based on circumstantial evidence, 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. In the present appeal the defence had attempted to detract certain admissions made by the second appellant to his friends when the appellants were picked up at the petrol station, by suggesting that the friend was not a credible witness in that he may bear some grudge against the second appellant. If this were true then it was not in consonance with the fact that the friend responded by giving the second appellant assistance by fetching him from the petrol station (see paras 17–21, 28, 30). (2) The second appellant attempted to create doubts in the prosecution case by alleging that the T-shirt worn by him on the day of the incident had no blood stains on it and that the police had not produced the right T-shirt. However, the trial judge accepted the explanation of the police officer who seized the T-shirt and concluded that there was no confusion about the T-shirt. Neither was there any material flaw in the trial judge’s finding on the parang, which was identified as the murder weapon (see paras 31–34). F (3) No reasonable basis was detected for the identification parade to be rejected since as the High Court judge had disclosed, the inference that the appellants were the perpetrators was not founded primarily on the identification parade (see paras 35–36). G (4) There was no merit in the argument that adverse inferences could be drawn by the prosecution’s failure to call certain witnesses since the audio visual advantage of the High Court judge provided him with the basis of establishing the prima facie case. Hence there were no ‘gaps’ to be filled in as they were not material (see para 40). H I (5) Although the appellants alleged that Ivan was the key person behind the commission of the murder, nothing had been raised about Ivan at the stage of the cross-examination of the prosecution’s witnesses. Having evaluated the evidence on record in its totality it was clear that the alleged infirmities in the prosecution’s case were untenable (see paras 48, 52–53, 58). (6) The trial judge had not properly considered the issue of common intention under s 34 of the Penal Code. The trial judge’s conjectures led to contradictions resulting in misdirection on the question of common intention. Although the High Court judge ruled that the evidence adduced by the prosecution led to the inference that the appellants were