Yap Boon Thai v Public Prosecutor [2013] 6 MLJ 236

Court: Court of Appeal (Putrajaya)

Judges: Azahar Mohamed, Linton Albert and Zawawi Salleh JJCA

Date of Judgement: 25 June 2013

Topic: Circumstantial Evidence in Murder

2.     In brief, the Deceased named as Ismianti, an Indonesian citizen worked as a cleaner in a homestay located in Sungai Petani.  On 8 June 2005, she failed to report for her cleaning duties, and was later found dead by a co-worker in Room 988 of the homestay.

3.     The pathologist who performed the autopsy on the Deceased’s body found 69 stab wounds and incised wounds on the Deceased’s body.  According to the pathologist the stab wounds and incised wounds were caused by a thin and sharp weapon such as the knife found at the scene of the crime.

4.     The Appellant, a contract worker, who had been staying at the homestay while working at nearby area between the months of April to June 2005 was arrested and charged with the murder of the Deceased.

5.     According to the prosecution evidence, blood swabs that were taken for DNA profiling from inside Room 988, confirmed that the Appellant’s DNA profile was present in the room.

6.     The Appellant also led the police to several places around Sungai Petani and Kuala Lumpur, where a bunch of keys belonging to the homestay was recovered and a handphone belonging to the Deceased was seized.

7.     A second handphone belonging to the Deceased was seized from a handphone store.  The owner of the handphone store (‘SP11’) testified that the Appellant had sold the handphone to him for RM60 after informing the former that he needed the cash after being involved in an accident.

8.     The Appellant had also sought medical treatment from a clinic in Sungai Petani for an incised wound and laceration on his right small finger and middle finger.  The doctor who attended to the Appellant at the clinic testified that the Appellant claimed to have suffered the injuries from a fall from his motorcycle.

9.     In his defence the Appellant gave evidence on oath that an unknown man had assaulted and stabbed the Deceased.

10.  The Appellant testified that when he rushed to the Deceased’s aid, he had been attacked by the man and suffered the injuries he had sustained.  He further claimed that he fled the scene because he was afraid that he would be implicated with the murder.

11.  The trial judge held that the Appellant was found guilty of the murder of the Deceased.  Aggrieved with the decision, the Appellant made an appeal against his conviction on the ground that the trial judge failed to take into consideration there was an unidentified DNA other than Appellant which was discovered at the scene.

2.     In this regard, the Court of Appeal made a distinguished reference to the case of Public Prosecutor v Hanif Basree bin Abdul Rahman [2007] 2 MLJ 320 where the issue of unidentified DNA evidence other than the accused discovered at the crime scene has been addressed as follows:

“There is insufficient evidence to connect the respondent with the killing. Circumstantial evidence should be such that when you look at all the surrounding circumstances, you find such a series of un-designed, unexpected coincidences that, as a reasonable person you will find your judgment is compelled to one conclusion. If the circumstantial evidence is such as to fall short of that standard, if it does not satisfy that test, if it leaves gaps, then it is of no use at all”    [Emphasis added]

3.     A careful evaluation of the proof revealed a bloodstain of blood type A on the floor outside Room 988 in a different room. As a result, Hanif Basree’s situation is easily distinguishable because the discovery of Hanif’s seminal fluid was the major contributor in that case, with the DNA of an ‘unknown man 1’ detected in the Deceased vagina being the minor contributor.

4.     As for this case, the Court of Appeal noted that the trial judge has specifically addressed this issue and the Court made a careful analysis that there was no reason to disturb the trial judge’s finding that the Appellant was indeed guilty of the offence as there was other series of circumstantial evidence chained with the crime scene.

5.     The Court of Appeal also referred to the decision of Magendran a/l Mohan v Public Prosecutor [2011] 6 MLJ where the basis of circumstantial evidence provides that-

(a)  the circumstances from which the conclusion of guilt is to be drawn should be fully established;

(b)  the facts so established should be consistent with the hypothesis of the guilt of the accused; and

(c)  circumstances should be conclusive nature and tendency; there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

6.     The Court of Appeal also cited the case of Public Prosecutor v Letchumanan a/l Krishnan [2008] 3 MLJ 290 where it employs the say of the judge as follows:

“…that circumstantial evidence alone may be sufficient to support a conviction for murder since the law makes no distinction between circumstantial evidence and direct evidence and, if circumstantial evidence is used to provide for a conviction; it must be inconsistent with any other hypothesis than that of guilt of the accused.”   [Emphasis added]

7.     The Court of Appeal also adopted the views of Faizal Ali J in delivering the judgment of the Supreme Court in Ram Avtar v The State (Delhi Administration) AIR 1985 SC 1692-

“We must, however, guard against the danger of not considering circumstantial evidence in its proper perspective, where there is a chain of circumstances linked up with one another, it is not possible for the court to truncate and break the chain of circumstances where a series of circumstances are dependent on one another they should be read as one integrated whole and not considered separately, otherwise the very concept of proof of circumstantial evidence would be defeated.” [Emphasis added]

8.     Having correctly referred to the applied and distinguished cases above, the Court of Appeal emphasised that crimes are typically conducted in private and under conditions where concealment is extremely likely, thus the prosecution may rely on circumstantial evidence to meet its burden in the absence of direct evidence.

9.     In deciding the matter, the Court of Appeal held that there is sufficient, reliable, and conclusive circumstantial evidence to conclude that the Appellant committed the alleged crime.

10.  The circumstances which linked the Appellant to the crime has been carefully deduced as follows:

(a)  the presence of the Appellant’s DNA profile in Room 988;

(b)  the Appellant had stolen the room keys, and the Deceased’s handphones;

(c)  the deliberate attempt of the Appellant to part with the stolen goods by selling the handphones;

(d)  the Appellant’s attempt to dispose of the room keys by throwing them into a drain near the Caltex Petrol Station;

(e)  the Appellant’s act of removing the Hotlink sim card from the handphone and throw it at the parking area at the Sungai Petani Bus Station;

(f)    the Appellant’s conduct of lying to doctor that he met an accident/fall from a motorcycle; and

(g)  the stolen items were recovered from several places as a result of the appellant’s subsequent conduct of leading PW16 to the discovery of those items.

11.  The Court of Appeal made a thorough finding by dissecting the mens rea of the Appellant through his series of circumstances where it stated that the intention is not something capable of being established by direct evidence; it is a matter of inference.  It could be gathered from all the facts and circumstances prevailing in the case that all fingers pointed at the Appellant as the culprit alone.

12.  Pursuant to that, the Appellant’s intention may be gathered from the nature of the injuries and the weapon used.  The Court of Appeal found that the prosecution had established via the evidence by the pathologist that-

(a)  the cause of death is ‘complete transaction of the right internal carotid artery and partial transaction of right internal vein due to stab wound to the right retro-auricular region’;

(b)  the Deceased was stab repeatedly;

(c)  the chances of survival to a human who sustained this kind of injury are very slim; and

(d)  a weapon like a knife could cause such injury.

13.  Given the nature of the pathologist’s medical findings and the use of a threatening weapon, the Court of Appeal concluded that the current case would fall within the ambit of Section 300(c) of the Penal Code.

14.  In the lack of any other evidence, the Appellant who inflicted these injuries must have intended to kill the Deceased.

15.  The Court of Appeal concurred with the learned trial judge that the Appellant has intended the Deceased’s death and sees no basis to overturn His Lordship’s decision.

2.     The Court of Appeal dismissed the appeal and affirmed the conviction and the sentence imposed by the learned trial judge against the Appellant.

2.     Circumstantial evidence is sufficient to prove if there is more than one circumstance and the combination of all the circumstances is linked/connected to one another to the crime scene and as such to prove a conviction beyond reasonable doubt.

3.     It was submitted that the strand of evidence (timeline) is not lacking and has satisfied the legal threshold for reliance on circumstantial evidence because the evidence presented by the prosecution firmly establish a definite tendency to point towards guilt of the Appellant.