Ling Hang Tsyr v Public Prosecutor [2019] MLJU 1182

Court of Appeal (Putrajaya)

Murder

1.     Wong Jing Kui (the Deceased) and the Appellant are husband and wife and was married in 2005.  Come 2011, there were cracks in the marriage.

2.     Allegations of extramarital affairs against both parties did not improve the situation.  To add, efforts to go for counselling proved futile and ultimately both agreed to go for a divorce.  However, at the time of the offence, the parties were still married.

3.     It was claimed that the Appellant had an affair with Andrew Tiong King Guan (Andrew).  In the instant case, Andrew is accused, along with the Appellant, of conspiring to kill the Deceased by abetting one Ling Hoe Ing (PW 5).

4.     The facts that led to the charge against the Appellant and Andrew began when Andrew offered PW 9 a deal to kill the Deceased, which PW 9 turned down.  He then went to PW10 and PW11, but they, too, had no plans to murder anyone.

5.     However, PW 10 and PW 11 were each paid RM 1000.00 to ensure that they did not reveal the deal to anyone.  They then introduced Andrew to PW 5, who had a large gambling debt and was desperate to pay it off.

6.     PW 5 accepted the deal because Andrew promised to pay him if he successfully killed the Deceased, which would help him pay off his debt.

7.     In pursuing the Deceased on 14.6.2012, PW 5 testified that he followed Andrew’s instructions to enter the Appellant’s house through the back door because it was unlocked and there was no CCTV coverage.

8.     According to PW 5, he arrived at the house around 12 a.m. on 14.6.2012.  PW 5 stated that Andrew also directed him to enter the master bedroom, where he stabbed the Deceased with a knife while he was sleeping on a mattress on the floor.

9.     After completing his task, he then went out of the house and informed Andrew that his instructions had been executed.

10.  Not believing the information, Andrew went back to the scene with PW 5 but saw that the police and ambulance were already there.

11.  Post-mortem reports confirmed that the cause of death was a result of stab wounds to the neck and chest of the Deceased.  Subsequently, PW 5 was arrested by the police.

1.     Whether the Court failed to make findings on common intention and the offence of abetment by conspiracy.

1.  The Principle of Common Intention

(a)   The charge against the Appellant specifically states that the Appellant together with Andrew in furtherance of common intention, by way of conspiracy, abetted PW 5, in the commission of murder of the Deceased.

(b)   “Common Intention” revolves around Section 34 of the Penal Code (Act 574) which provides that-

“Each of several persons liable for an act done by all, in like manner as if done by him alone. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.”

(c)   According to the case of Krishna Rao a/l Gurumurthi v PP & Anor Appeal [2009] 3 MLJ 643, Section 34 of Act 574 is a rule of evidence which relies on the principle that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually.

(d)   In addition, common intention may be difficult to prove by direct evidence but it can be inferred from the circumstances of the case and the conduct of the accused person.

(e)   Applying the general accepted principles as aforesaid to the facts of the appeal, the Court agreed with the defence that there is no direct evidence adduced by the prosecution of any pre-arranged plan devised between the Appellant and Andrew to commit the offence or the meeting of the minds as a pre requisite under Section 34 of Act 574.

(f)     Although the learned trial judge addressed the circumstantial evidence which was found to link the Appellant to the murder, what is glaring is the evidence of a plan between Andrew and PW 5.

(g)   The other concern is the nexus of the act of killing the Deceased by PW 5 with the Appellant.  PW 5 said that he did not know the Appellant, had never met her and neither he knew how she looks like.

(h)   PW 5’s link is only with Andrew.  However, there is not an iota of evidence adduced by the prosecution of any prearranged plan between the Appellant and Andrew.

(i)      Neither is there any evidence of participation by the Appellant in the act of the killing of the deceased by PW 5.  The evidence of pre-arranged plan, if any, is as testified by PW 5, was only between Andrew and PW 5.

(j)      The Court’s concern is the unerring evidence of the call logs on the morning of 14.6.2012, around the time of the murder.  This is the evidence of the active communications between the Appellant’s hand phone and Andrew’s at the time of the commission of the crime.

(k)    The prosecution submitted that from the call logs there were active communications between Andrew and the Appellant, and communications between Andrew and PW 5.

(l)      From these call logs, the prosecution submitted that it shows the 3 were in contact and it heightened just before the murder.  These call logs indicated that Andrew acted as intermediary as Andrew knew PW 5 and the Appellant.

(m)  From the call logs there were calls from the Appellant’s handphone to Andrew after the Deceased had been stabbed by PW 5, namely from the time of 12.40 a.m. – 1.21 a.m.

(n)   The Appellant said that her hand phone was used by the Deceased, as the Deceased had done that before as he was jealous of the Appellant’s male colleagues that had contacted the Appellant.

(o)   The learned trial Judge found that it cannot be the Deceased talking or texting to Andrew using the phone belonging to the Appellant as suggested by the defence.

(p)   In this respect, the Court found that such findings by the learned trial Judge was not wrong.  This is because, to accept the suggestions by the defence that it was the Deceased who was talking or texting to Andrew between 12.40 a.m.- 1.21 a.m., would be contradicting with the evidence of PW 5 that he had entered the house between 12.00 a.m. – 1.00 a.m. and that by 1.00 a.m. he was already back home.

(q)   In addition, the evidence of PW 5 is corroborated by the evidence of PW 8, the medical assistant who said that the Deceased could have died less than 2 hours when he arrived at the crime scene at 2.05 a.m.

(r)     It would then be illogical for the Deceased to make calls or texting to Andrew using the phone of the Appellant from 12.40 a.m.- 1.21 a.m., as he would have been dead by then.

(s)     Therefore, from the call logs and the evidence of PW 5, the Court of Appeal agreed with the learned trial Judge that it is safe to conclude that it was not the Deceased who made the calls using the Appellant’s handphone during the time from 12.40 a.m. – 1.21 a.m., as suggested by the defence.

(t)     The finding of the learned trial judge that the entry to the house could not have been made possible without the help of someone from inside the house.  There were only 3 people in the house at that point in time i.e. the Appellant, the Deceased and their 3 year old son.  Between the 3, the learned trial judge found that the high probability would be the Appellant.

(u)   The Court was of the view that such findings and conclusions are bereft of evidential support, given the evidence of the timing of the call logs that there is a possibility that the calls were not made by the Appellant.

(v)    There is clear evidence that Andrew hired PW 5 to kill the Deceased and there was prearranged plan between both of them.  However, the finding by the learned trial judge which implicated the Appellant is unsubstantiated.

(w)  As far as the Appellant is concerned, the only evidence that appears to implicate her are the call logs, which linked to her hand phone number but not necessarily made by her.  As to who facilitated the entry of PW 5 into the house, the prosecution relied on circumstantial evidence that seemed to point to the Appellant.

(x)    Thus, the Court emphasized that with regards to the call logs, in the absence of the contents of the call logs, and also given the doubt as to who actually was communicating with Andrew at the time of the murder, it is not safe to conclude that these call logs are proof of the conspiracy between the Appellant and Andrew to commit murder by hiring PW 5.

(y)    From the aforesaid, the learned trial judge failed to give adequate judicial appreciation and evaluation of the law and facts in the absence of facts/evidence to support the essential ingredients of common intention by way of conspiracy between the Appellant and Andrew who was still at large, in abetting PW 5 in the offence of murder of the Deceased.

2.     The elements of section 34 of Act 574 are:

(a)   a criminal act;

(b)   participation in doing of the act;

(c)   a common intention between the parties; and

(d) the act must be done in furtherance of the common intention.

3.     It should be noted, however, that determining common intention cannot be reduced to mere presence, nor can a lack of presence be interpreted as a lack of participation.

4.     To summarise, the common intention can manifest itself in a variety of ways; while presence is certainly a relevant factor to consider, each of the accused’s act and intention must be considered in light of the facts and circumstances of the case.