1. In
Malaysia, criminal law is governed by a myriad of statutes and case laws depending
on the nature and particulars of the crime committed.
2. Mainly
there are several pieces of legislation that governs the criminal law field as
follows:-
l PENAL
CODE ACT 574 (KANUN KESEKSAAN)
l CRIMINAL
PROCEDURE CODE (KANUN PROSEDUR JENAYAH)
l DANGEROUS
DRUGS ACT 1952 (AKTA DADAH MERBAHAYA
1952
l PREVENTION
OF CRIME ACT 1959 (AKTA PENCEGAHAN JENAYAH) (POCA)
l ANTI
MONEY LAUNDERING, ANTI-TERRORISM FINANCING AND UNLAWFUL ACTIVITIES ACT 2001 (AKTA
PENCEGAHAN PENGUBAHAN WANG HARAM DAN
PENCEGAHAN PEMBIAYAAN KEGANASAN 2001)
3. The list above is a non-exhaustive list as there tons of other pieces of legislation
that I have omitted.
4. The
important fact to be noted is that there is a single piece of legislation that
seems to be interwoven amongst all the criminal law legislation and case law.
To put it in a different term, this piece of legislation acts as a thread that
ties all of these different pieces of legislation together.
5. I
am speaking about the Evidence Act 1950 (Akta Keterangan 1950).
6. The
Evidence Act 1950 acts as a mandatory guide for the Courts and Law Practitioners
to be able to decipher the sort of evidence that can be adduced in a Court
Proceedings, the nature of the evidence adduced, the scope of the evidence
adduced, the procedure on which an evidence can be adduced, the effect of the
evidence adduced and much more.
7. I
believe the brief introduction above suffices to lay the underlying frameworks
of the topic in the discussion today.
CIRCUMSTANTIAL EVIDENCE
8. Circumstantial
Evidence can be defined as the evidence of relevant facts from which the
existence or non-existence of facts in issue may be inferred. The nature of
circumstantial evidence may be quite weak, leading to various inferences being
drawn from the set of facts. Despite the weight attached to circumstantial
evidence is light, it may still be possible to secure convictions.
9. Section
5 of the Evidence Act 1950 says that if a piece of evidence is relevant then it is admissible
(circumstantial evidence is admissible)
10. In
order to fully appreciate the nature and effect of a Circumstantial Evidence,
one needs to analyze a set of cases which I believe succinctly lays down the
basic ingredients and the fundamental principles and jurisprudence of
circumstantial evidence.
CASE
LAWS
11. Low Kian Boon & Anor v Public Prosecutor [2010]
4 MLJ 425
|
·
“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 stained clothes and
the second appellant was in a state of shock. ·
When the friends in the car
enquired as to what had happened the second appellant had responded that he
and the first appellant had killed someone but that they had no intention to
cause death. ·
There was also evidence
identifying the appellants to be the two persons purchasing the parang, which
was the murder weapon. Based on this evidence, which was primarily circumstantial,
the appellants were charged with committing the murder of the deceased, an
offence under s 302 of the
Penal Code ('Code').” |
12. Sunny
Ang v PP 1966 2 MLJ 195
|
·
The appellant in this case was convicted for
the murder of one Jenny Cheok Cheng Kid and was sentenced to death although the
body of the Deceased was never recovered. ·
According to the prosecution the offence was
committed at sea near two islands off Singapore. · The appellant had hired a sampan from a boatman and on his directions the boatman brought the appellant and the girl to a place near the two islands where he dropped anchor. ·
According to the appellant his object in
going there was to collect corals; the prosecution contended that his real
intention was to murder the girl, and that in pursuance of that intention he
assisted her to put on the diving equipment and allowed her, a novice diver,
to go down alone, wearing a flipper, which had been previously cut, in waters
which he knew were dangerous and hazardous, with the result that she met her
death. ·
Evidence was given that the girl had been
insured against accidents with several insurance companies; and that some of
the policies had been renewed by the appellant on the morning of the girl's
death, although he had not renewed or extended his own insurance policy. The
prosecution relied on circumstantial evidence and on the cumulative effect of
such evidence. ·
The appellant had been made a
bankrupt in October 1962 and was still a bankrupt on the 27th August 1963,
being the day on which the offence was alleged to have been committed. He was
in need of money and that could be a motive for the crime. ·
On the 27th August 1963 Jenny was
insured against accidents with several insurance companies, the total sum
being $450,000. ·
One of the insurance policies
under which Jenny was insured for the sum of $150,000 had lapsed on the 26th
August 1963 but was renewed by the appellant on the morning of the 27th
August 1963 for another five days. The appellant, however, did not renew or
extend his own insurance policy which had been taken out at the same time. ·
Another one of these insurance
policies, which was for the sum of $100,000, was due to expire on the 28th
August 1963. ·
The beneficiary named in some of
the policies was the appellant's mother. In the case of the other policies
the benefit was to go to Jenny's estate. ·
Jenny, who was 22 years of age
and was a bar waitress earning $90 per month and about $10 in tips per day
when she worked, made a will on the 7th August 1963 in which the appellant's
mother was named as the sole beneficiary. The appellant accompanied Jenny to
the solicitor's office when instructions for the preparation of the will were
given to the solicitor. ·
Jenny had only a little
experience of what is called scuba diving and might fairly be described as a
novice scuba diver. This was known to the appellant, although he claimed that
she had made good progress under his tuition. ·
On the 27th August 1963 the
appellant allowed Jenny to go down into the waters near Pulau Dua alone.
According to an expert witness, it was not safe for a novice to scuba dive
alone. · The waters near Pulau Dua were dangerous and hazardous. The appellant has dived in these waters on previous occasions and was in a position to know this. ·
The appellant did not go down
into the water himself even after Jenny had failed to come to the surface. ·
Jenny did not wear gloves when
she went down into the water. This could be inferred, if the jury decided to
do so, from the fact that the two pairs of gloves which had been brought by
the appellant on that occasion were still in his swimming-bag. Gloves were
usually worn when looking for corals in order to prevent the hands and
fingers from being cut. It was of course for the jury to decide whether the
gloves produced in court were the very same gloves which were in the
appellant's swimming-bag on the 27th August 1963. The jury were in a position
to observe that the appellant was unable to explain why there should be two
pairs of gloves in the swimming-bag after Jenny had disappeared. It[1966]
2 MLJ 195 at 197was open to the jury to reach the conclusion that the
appellant did not really intend to look for corals that day. · One of the flippers worn by Jenny that day was found on the 3rd September 1963 at a depth of about 45 feet not very far from the place where she had gone into the water. The heel strap was severed and on examination it was found that the strap had been cut in two places by a knife or sharp instrument. There was no direct evidence to show who had cut the strap but it was open to the jury, if they decided to do so, to find that it was the appellant who had cut it. It was stated by an expert witness that if a diver suddenly loses one of his flippers whilst scuba diving, his equilibrium would be upset, his mobility impaired and it might well lead to panic in the case of an inexperienced diver. ·
The conduct of the appellant
after the disappearance of Jenny was described by Yusof and other witnesses.
It was open to the jury to find that there was a lack of urgency in the
conduct of the appellant at the relevant time. ·
Less than 24 hours after the
disappearance of Jenny, the appellant made formal claims on the three
insurance companies which had issued policies covering her against accidents. |
13. Juraimi
Bin Husin v Public Prosecutor 1998 1 MLJ 537
|
·
In this case involving the murder of one Dato
Mazlan, there was no direct evidence but the prosecution adduced relevant facts
such as:- ·
The decapitated body of the deceased was
recovered from the house occupied by the three appelants. ·
The deceased’s death was caused by severance
of his head by a weapon similar to the axe recovered at the same premise. ·
The day before his death, the deceased
withdred RM 300,000 from his bank account and on between 3rd July
and 18 July the second and third appellant embarked on a spending spree, spending
more than RM 200,000, payments being made in RM 1000 notes which were the
same denomination of notes in which the deceased had earlier withdrawn. |
14. Pathmanabhan
a/l Nalliannen v Public Prosecutor and other appeals [2017]
|
In the above case the bodies of Sosilawati and the three others in
relation to whose murders the four accused persons were charged under s 302
read with s 34 of the Penal Code were never found. Not a single witness gave
evidence of having seen the deceased bodies of Sosilawati and the three
others, or of having seen them being inflicted with injuries leading to their
demise. In other words, the incriminating evidence against each of the
four accused persons if any was wholly circumstantial in nature. List of
Circumstantial Evidence ·
SP7 gave evidence that Sosilawati stopped by
the shop where she worked in Banting. The shop sold ‘kerepek’ and cakes.
SP7’s recollection was that Sosilawati stopped by around 4pm on the day in
question and bought RM200 worth of ‘kerepek’ and cakes from the shop. She
left around 5.20pm with her driver in a BMW car. ·
Chief Insp Mazli bin Jusoh (‘SP25’) who
examined Sosilawati’s black BMW with the registration No WTL 11, found
several plastic packets of ‘kerepek’ and cakes in the car. SP25’s evidence
goes to corroborate the evidence of SP7 that Sosilawati bought ‘kerepek’ from
her shop. ·
SP15 further testified that around 7pm
on the day in question, Kamil called her and she asked Kamil where they were
going to break their fast. Kamil replied ‘entah mak engkau bawa pergi hutan
mana entah’. He also said ‘pokok kelapa sawit’. When SP15 asked where her
mother was, Kamil told her that Sosilawati was in the car in front of him.
The telephone was then passed to Hisham who then told SP15 that he was in
Kamil’s car and that he parked his car in Section 7 in Shah Alam ·
Telecommunication records kept by Celcom also
showed that telephone calls were made on the day in question from the number
used by Sosilawati (0192295153) to the number registered under the first
accused’s firm. The calls were made at 5:59:04pm and 6:01:25pm, respectively.
The calls were captured by the TM transmitter in Banting. ·
At about 9pm, SP33 heard the sound of a woman
screaming, twice, one or two seconds apart. ·
According to Hisham’s wife, SP8, he was
wearing a Longines watch when he drove her to her workplace in the morning of
the day in question. SP8 identified the watch (P30) and the warranty card
that she had handed over to the police earlier (P31). · SP27 testified that on 11 September 2010 he
went to Selvapandian a/l Veerappan (‘SP12’)’s house around
11pm. SP12 is the fourth accused’s uncle. SP27 seized P30 from SP12’s house.
It was on a table in a bedroom in SP12’s house. The serial number engraved on
the back of the watch (34090536) was recorded in the search list signed by
SP12 (P37) and in the police report lodged by SP27 in relation to the seizure
(P112). ·
The DNA from the bloodstains on the zinc sheets retrieved from the
river and on the cricket bat found at the farm showed that Kamil, Hisham and
Kamal had been inflicted with injuries. The screams heard by SP33 lend weight
to this irresistible inference. ·
The manner of the disposal of the zinc
sheets, Kamal, Kamil and Hisham’s watches, and Kamil and Hisham’s telephones
show that there was an attempt to obliterate any trace of the incident |
15. With regard to the definition of circumstantial evidence, I can give you no better
definition than quote to you the words of Lord Cairns in the case
of Belhaven & Stenton Peerage reported in 1875-6 Appeal Cases, p
279:
|
“My
Lords, in dealing with circumstantial evidence we have to consider the weight
which is to be given to the united force of all the circumstances put
together. You may have a ray of light so feeble that by itself it will do
little to elucidate a dark corner. But on the other hand you may have a
number of rays, each of them insufficient, but all converging and brought to
bear upon the same point, and when united, producing a body of illumination
which will clear away the darkness which you are endeavouring to dispel.” |
16. The
above cases are just a handful of cases in which the judges had convicted the
perpetrators on counts of murder relying on the existence of circumstantial
evidence. In fact, there are a plethora of case laws which details the use of
circumstantial evidence.
17. The
use of circumstantial evidence is an interesting one. It allows judges and law
practitioners not to confine their train of thoughts on a fixed platform but to
explore and diverge into other possibilities and permutations in handling a
case.
18. I
hope this article has given my readers a better and further understanding of
the law of circumstantial evidence.
Thank You
Joel Ruben John
Advocate and Solicitor of the
High Court of Malaya
