SEOW PEI CHIE v Pendakwa Raya (Q-05(M)-304-08/2023)

Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEALS NO: Q-05(M)-(304 and 305)-08/2023 BETWEEN SEOW PEI CHIE CHEUNG CHIA MING ... APPELLANTS AND PUBLIC PROSECUTOR ... RESPONDENT CORAM: WONG KIAN KHEONG, JCA ALWI BIN HAJI ABDUL WAHAB, JCA EVROL MARIETTE PETERS, JCA GROUNDS OF JUDGMENT 06/05/2026 12:33:58 Q-05(M)-304-08/2023 Kand. 85 **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 2 Introduction [1] These were appeals (“these Appeals”) by the First and Second Appellants against their conviction for murder under section 302 of the Penal Code and the sentence of death imposed by the learned High Court of Sabah and Sarawak at Sibu on 31 July 2023. These Appeals were heard together. The factual background [2] The deceased, Heng Meow Lin (“the Deceased”), had owed the Appellants money, and as a result, she and her daughter (“the Daughter”) relocated from Perak to Sibu, Sarawak in March 2016 in the hope of building a modest livelihood through a food hawking business. During this period, they resided in a shop lot together with the Appellants, a married couple. [3] While in Sibu, the Deceased encountered difficulty in repaying the debt. What began as a financial arrangement gradually gave rise to mounting tension between the Deceased and Appellants (“the Parties”), culminating in frequent quarrels which, on occasion, escalated into physical altercations. [4] In an effort to settle the debt and support herself, the Deceased sought various means of earning an income, subsequently becoming a sex worker. [5] In June 2016, the Daughter travelled with the Appellants to Kuala Lumpur, where she initially carried out domestic duties for them. After approximately eleven months, she escaped, alleging that the Appellants had threatened to sell her organs to settle the **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 3 Deceased’s debt. Following her escape, she was placed in a shelter home. [6] The Appellants subsequently returned to Sibu and sought the Deceased who was, by then, working at the City Hotel as a sex worker. [7] The Deceased was claimed to have been last seen alive on 3 October 2020 by her fellow sex worker, Duri (“PW1”). However, during the defence stage, the Second Appellant testified that the Deceased was at the Appellants’ premises on 4 October 2020. [8] In the early hours of 6 October 2020, at about 6.30 am, members of the public found a luggage bag containing the Deceased’s body. Paramedics attended at the scene and a police response unit was dispatched. The body was thereafter conveyed to the mortuary at Sibu Hospital for a post-mortem examination. [9] At approximately 6.46 am on the same morning, barely sixteen minutes after the discovery of the body, the First Appellant lodged a police report stating that she had lent money in the amount of MYR800, and a large bag to the Deceased, who had allegedly failed to return the money. The timing and nature of the report aroused suspicion, and the Appellants were subsequently arrested. [10] During the course of investigations, several items were seized from the Appellants’ premises, including a cement bag bearing a spot of suspected blood. The specimen was sent to the Chemistry Department for analysis and was subsequently confirmed to match the DNA profile of the Deceased. **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 4 [11] On 13 October 2020, an autopsy was conducted by the forensic pathologist (PW16), who concluded that the cause of death was asphyxia due to neck compression with head injury resulting from blunt force trauma. [12] On 19 October 2020, the Appellants were charged for murder pursuant to section 300(c) of the Penal Code. Following a full trial, the learned High Court Judge, on 31 July 2023, found the Appellants guilty as charged and sentenced them to death. Hence these Appeals. [13] On 4 March 2026, the Second Appellant filed a Notice of Motion seeking leave of this Court to adduce fresh evidence in support of a purported alibi. That application was dismissed. [14] The grounds of these Appeals put forward to this Court were that the learned High Court had erred as follows, namely, in: i. Deciding that the Prosecution had proved a prima facie case against the Appellants; ii. Failing to appreciate that there was reasonable doubt in the Prosecution’s case; iii. Ruling that the contents of WSPW18 (the witness statement of the Investigating Officer (PW18) regarding the admission of guilt by the Appellants) were admissible; iv. Taking into consideration evidence of bad character of the Appellants; **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 5 v. Misdirecting himself as to what constituted common intention, under section 34 of the Penal Code; vi. Misdirecting himself on the analysis of the facts; and vii. Failing to appreciate evidence adduced by the Appellants in making a finding of guilt. The issues [15] Upon reviewing the grounds of these Appeals in their entirety, we noted that several overlapped and were interrelated. We, therefore, identified the following as the key issues for determination: a) Whether the learned High Court Judge had erred in ruling that the Prosecution had established a prima facie against the Appellants; b) Whether the learned High Court Judge had erred in ruling that the contents the witness statement of the Investigating Officer were admissible; c) Whether the learned High Court Judge had erred in taking into consideration bad character of the Appellants; d) Whether the learned High Court Judge had misdirected himself on what constituted common intention of the Second Appellant; e) Whether the learned High Court Judge had erred in his appreciation of the totality of the evidence in finding the Appellants guilty beyond a reasonable doubt; and **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 6 f) Whether the learned High Court Judge had erred in the exercise of his discretion in imposing the death penalty on the Appellants. [16] We unanimously dismissed these Appeals and affirmed the learned High Court Judge's decision on both conviction and sentence of death in their entirety, for the following reasons. Contentions, evaluation and findings [17] With regard to the issue of whether the learned High Court Judge had erred in ruling that the contents the witness statement of the Investigating Officer (“the Witness Statement”) were admissible, at the outset, the learned Deputy Public Prosecutor conceded that it ought not to have been admitted, and we agreed. [18] The question that arose for determination was whether the remaining evidence before the learned High Court Judge was sufficient to sustain the conviction beyond any reasonable doubt, particularly given that the case rested entirely on circumstantial evidence. [19] In this regard, it was significant that the learned High Court Judge expressly stated, at paragraph 53 of the Grounds of Judgment, that even without reliance on the Witness Statement, the guilt of the Appellants had been proved beyond a reasonable doubt. [20] In assessing this, we made reference to section 60 of the Courts of Judicature Act 1964, section 422 of the Criminal Procedure Code, and section 167 of the Evidence Act 1950, all of which read: **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 7 Courts of Judicature Act 1964 Section 60 – Powers of Court of Appeal

(1) At the hearing of an appeal the Court of Appeal shall hear the appellant or his advocate, if he appears, and, if it thinks fit, the respondent or his advocate, if he appears, and may hear the appellant or his advocate in reply, and the Court of Appeal may thereupon confirm, reverse or vary the decision of the High court, or may order a retrial or may remit the matter with the opinion of the Court of Appeal thereon to the trial court, or may make such other order in the matter as to it may seem just, and may by that order exercise any power which the trial court might have exercised: Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. ***** Criminal Procedure Code Section 422 – Irregularities not to vitiate proceedings Subject to the provisions contained in this Chapter no finding, sentence or order passed or made by a Court of competent jurisdiction shall be reversed or altered on account of-

457. **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 9 [23] Guidance was drawn from the observations of Zulkefli Makinudin FCJ in Mohd Zaiham Mislan v PP, as reflected in the following passages: … It is my considered view that even if the impugned statement was an improper admission of evidence, nevertheless there was ample evidence to justify the conviction. (See s. 167 of the Evidence Act 1950). It is my judgment that the prosecution has established beyond reasonable doubt that the cautioned statement (P27) was voluntarily given, and thus admissible in evidence. [23] Even assuming that the cautioned statement (P27) is ruled inadmissible, I am of the view that the other available evidence is more than sufficient to sustain the conviction of the appellant on the charge framed. On this point, the Court of Appeal had rightly stated in its judgment that even without the cautioned statement it was safe to commit the appellant based on the other evidence. It must be noted that in a case involving purely a question of fact the Court of Appeal is free to determine whether or not the various findings of the trial court are correct. (See the case of Mohamed Mokhtar v. Public Prosecutor [1971] CLJU 84; [1971] 1 LNS 84). The Court of Appeal had considered and subjected all the evidence adduced by the prosecution to a critical re-examination. The Court of Appeal had given sound reasons as to why the evidence was admitted and that it had implicated the appellant. There was no miscarriage of justice against the appellant as the Court of Appeal's decision was based on evidence adduced from the witnesses called by the prosecution as appearing in the appeal record. I am, therefore, of the view that the Court of Appeal did not err on this issue. [Emphasis added.] [24] The fact that the remaining evidence was purely circumstantial did not, by itself, render it insufficient to sustain a conviction. It is trite law that a conviction may properly be founded on circumstantial evidence, provided that the proved circumstances, when taken cumulatively and viewed in their totality, form a complete chain which leads irresistibly to the guilt of the Appellants. Such **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 10 circumstances must be incapable of explanation upon any other reasonable hypothesis consistent with the innocence of the accused. In other words, the combined effect of the circumstantial evidence must be such that it satisfies the court beyond a reasonable doubt as to the guilt of the Appellants. This principle has long been recognised and applied by the courts in cases such as Jayaraman & Ors v Public Prosecutor [1982] 2 MLJ 306, Pathmanabhan a/l Nalliannen v Public Prosecutor and Other Appeals [2017] 3 MLJ 141, and Wong Zing Haw v PP [2025] 8 CLJ 433, where it was emphasised that circumstantial evidence, if cogent and compelling, may be as probative as direct evidence in establishing guilt beyond a reasonable doubt. [25] A careful scrutiny of the remaining evidence was, therefore, crucial to determine whether that standard of proof had been met. [26] We also have to bear in mind the governing principles on appellate intervention in criminal cases, where an appellate court will generally be slow to interfere with the findings of fact by the trial judge, who had the advantage of seeing and hearing the witnesses and assessing their credibility. However, intervention is warranted where it is shown that the trial judge misdirected himself in law or on the facts, failed to consider material evidence, took into account irrelevant considerations, or where the findings reached are plainly wrong or against the weight of the evidence. Ultimately, the appellate court may intervene where the decision has occasioned a miscarriage of justice. These principles have been reiterated in numerous authorities including Balachandran v Public Prosecutor [2005] 2 MLJ 301. **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 11 [27] Excluding the Witness Statement, as rightly conceded by the learned Deputy Public Prosecutor, the Prosecution’s case was that the Appellants had exploited the Deceased by forcing her into prostitution and assaulting her when her earnings were insufficient. They were the last persons seen with the Deceased on 4 October 2020 at their locked and guarded house, where forensic evidence indicated she was strangled and beaten to death, with her DNA found on a bloodstained cement bag. The disposal of the Deceased’s 85-kilogram body in a suitcase pointed to their joint involvement and common intention. The Prosecution further relied on the First Appellant’s false police report lodged shortly after the discovery, as well as evidence of motive grounded in greed, including a fabricated suicide note and an EPF nomination in favour of the Second Appellant. [28] The defence was a complete denial of involvement, with the Appellants asserting that they had a good relationship with the Deceased and denying any abuse or coercion into prostitution, while suggesting that an unknown third party might have been responsible for her death. The Appellants attributed the Deceased’s DNA at the scene to her prostitution activities and relied on unidentified DNA evidence as support for this theory. The First Appellant maintained that her police report regarding an alleged RM 800 debt was genuine, while the Second Appellant claimed his EPF nomination was made in a trustee capacity for the Deceased’s daughter. Both also raised alibis, stating they were elsewhere at the material time. **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 12 Whether the High Court Judge erred in ruling that the Prosecution had established a prima facie case [29] One of the grounds of appeal advanced by the First Appellant was regarding the failure of the learned High Court Judge to specify the precise limb of section 300 of the Penal Code at the close of the Prosecution's case. [30] While a point of procedural practice, we had to determine if there was such omission, and whether such omission had occasioned a miscarriage of justice. We were however, not persuaded that this omission, without more, warranted appellate intervention, for the following reasons. [31] First, the evidence led by the Prosecution overwhelmingly pointed to a killing that fell squarely, and only, within the ambit of section 300(c) of the Penal Code, which reads: Section 300 – Murder Except in the cases hereinafter excepted, culpable homicide is murder- …

(1) In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.

(2) A person charged and called as a witness shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of or been charged with, any offence other than that wherewith he is then charged, or is of bad character, unless-

(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

(2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 18 the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1 - The word "conduct" in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2 - When the conduct of any person is relevant any statement made to him or in his presence and hearing which affects his conduct is relevant. *** Section 9 – Facts necessary to explain or introduce relevant facts Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened or which show the relation of parties by whom any such fact was transacted, are relevant so far as they are necessary for that purpose *** Section 14 – Facts showing existence of state of mind or of body or bodily feeling Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant when the existence of any such state of mind or body or bodily feeling is in issue or relevant. Explanation 1 - A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists not generally but in reference to the particular matter in question. Explanation 2 - But where upon the trial of a person accused of an offence the previous commission by the accused of an offence is relevant **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 19 within the meaning of this section, the previous conviction of that person shall also be relevant fact. [Emphasis added.] [47] The relationship between the Deceased and Appellants was relevant to establish animus, to demonstrate the systematic exploitation and control that the Appellants exerted over the Deceased, and to rebut their defence that the relationship was cordial. Far from being evidence of isolated incidents of bad character, it reflected a continuing course of conduct that was directly relevant to the facts in issue. [48] The Appellants further contended that PW1 was an unreliable witness, on the basis that her testimony was not derived from her own direct knowledge but instead consisted of matters purportedly relayed to her by the Deceased. [49] We were unable to agree with the Appellants for the following reasons. [50] While certain portions of PW1’s testimony comprised statements made by the Deceased, those statements formed part of the same transaction and were, therefore, admissible under the doctrine of res gestae. This principle is embodied in section 6 of the Evidence Act 1950, which provides: Section 6 – Relevancy of facts forming part of same transaction Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places. **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 20 [51] ‘Transaction’ in the context of section 6 of the Evidence Act 1950 was explained in the Federal Court case of Thavanathan Balasubramaniam v Public Prosecutor [1997] 3 CLJ 150, where in determining what amounts to a transaction, the court will assess factors such as proximity in time and place, continuity of action, and common purpose to determine the connection. It was stated by Chong Siew Fai CJ (Sabah & Sarawak) in the following passage: … the term "transaction" in s. 6 had been defined by Sir James Stephen, the author of the Bill which later became the Indian Evidence Act 1872, "as a group of facts so connected together as to be referred to by a single name, as a crime, a contract, a wrong or any other subject of enquiry which may be in issue." In each case, the Judge has to decide according to the circumstances, drawing the line between the facts which are so connected with the fact in issue as to be part of the same transaction and facts which are beyond that limit. No precise limits can be prescribed. In some cases, the transactions lie within narrow limits of time; in other cases, they may be spread over a long period. (See Sarkar on Evidence 14th Edn. 1993, Vol. 1 p. 125). In some cases, two facts occurring at the same time and place may have no connection between them; but in other cases two facts separated by a vast distance of time and place may be parts of the same transaction. As stated earlier, it all depends on the circumstances of each case. Where the transaction consists of different acts, in order that the chain of such acts may constitute the same transaction, they must be connected by such factors as the proximity of time, proximity or unity of place, continuity of action, and community of purpose or design. [Emphasis added.] [52] The "transaction" in this case was not merely the final assault on the Deceased between 4 and 6 October 2020, but the entire course of exploitation, control, and abuse that the Appellants inflicted upon the Deceased over several years. The killing was the final act in this prolonged transaction, and the Deceased's statements to PW1, about being beaten, living in fear, and being forced into prostitution **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 21 were so closely connected to this ongoing ordeal that they could not be separated from the killing itself. The Deceased’s statements to PW1 provided the essential context without which the final fatal attack would be inexplicable. [53] The statements by the Deceased to PW1 also satisfied the requirement of spontaneity, negating any risk of concoction or fabrication. The Deceased's expressions of fear and descriptions of abuse were instinctive reactions forced from her by the overwhelming pressure of her circumstances, not calculated narratives made for ulterior motives. The Deceased had no reason to lie to PW1, a fellow prostitute and disinterested witness who had no dealings with the Appellants. The statements were made throughout the period of abuse, contemporaneous with the "transaction" itself, and were not fabricated after the fact. [54] As the House of Lords held in R v Andrews [1987] AC 281, a statement is admissible if the event was so startling that it dominated the thoughts of the victim, making the statement an instinctive reaction rather than a reasoned reflection. We drew guidance from the words of Lord Ackner in the following passage: The primary question which the judge must ask himself is—can the possibility of concoction or distortion be disregarded? ... To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the speaker was so so overpowered by the event that he was unable to fabricate a story. [Emphasis added.] **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 22 [55] Furthermore, the Deceased's statements were not being tendered to prove the truth of each individual incident of abuse, but for specific, legitimate purposes: to establish the true nature of the relationship between the Deceased and the Appellants, to prove motive, namely, financial exploitation and control, and to provide context for the final fatal attack. They transformed what might have appeared as isolated incidents into a coherent narrative of systematic abuse, forming a critical link in the chain of circumstantial evidence against the Appellants. The learned High Court Judge was, therefore, correct to admit this evidence, and the Prosecution's reliance on the res gestae doctrine is well-founded. [56] We also rejected the Appellants’ contention that PW1 and the Daughter were not credible witnesses. [57] The approach to be adopted by an appellate court when reviewing a trial court’s assessment of the credibility of witnesses is well settled by established authorities. We referred to the Privy Council case of Sheo Swarup & Ors v King-Emperor [1934] AIR PC 227, where Lord Russell laid down the following guidelines for an appellate court to consider before reaching its conclusions upon fact:

(1) the views of the trial judge as to the credibility of the witnesses;

(2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he had been acquitted at his trial;

(3) the right of the accused to the benefit of the doubt; and

(4) the slowness of an appellate court in disturbing a finding of fact by the trial judge who had the advantage of seeing the witness. **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 23 [58] The evaluation of a witness’s credibility is primarily the province of the learned trial Judge, who would have had the distinct advantage of seeing and hearing the witness testify. For that reason, an appellate court should be slow to disturb findings of fact founded upon such assessments unless there exist substantial and compelling reasons to do so. [59] It is well recognised that discrepancies are not uncommon in a witness’s testimony. The duty of the learned trial judge is to assess whether such inconsistencies are minor or material. The mere fact that a witness may have contradicted himself, or even been untruthful on certain aspects, does not necessarily justify rejecting the entirety of his evidence. Ultimately, it is for the learned trial judge to determine which parts of the witness’s testimony are to be accepted and which are to be disregarded. [60] It is equally well established that an appellate court should be slow to interfere with such findings, unless it is shown that they are plainly wrong, perverse, or against the weight of the evidence. [61] In the present case, we found no basis to disturb the findings of the learned High Court Judge. On this principle, we drew guidance from several cases including Herchun Singh & Ors v. Public Prosecutor [1969] CLJU 52; [1969] 1 LNS 52; [1969] 2 MLJ 209 FC; Dato' Mokhtar Hashim & Anor v. Public Prosecutor [1983] 2 CLJ 10; [1983] CLJ (Rep) 101 FC; Lee Ah Seng & Anor v. PP [2007] 5 CLJ 1, and more recent cases such as Yong Choo Kiong v PP [2025] 10 CLJ 533, and PP v. Mohd Isa Abdul Samad [2026] CLJU 263. **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 24 [62] We, therefore, found no error in the finding of the learned High Court Judge regarding the abusive relationship, as established by the evidence of PW1 and the Daughter. Their testimonies were consistent, credible, and remained unshaken under cross-examination. The learned High Court Judge, who had the distinct advantage of observing their demeanour first-hand, was entitled to accept their account and rely on it to conclude that the Appellants had subjected the Deceased to prolonged exploitation and violence. This finding was amply supported by the evidence and warranted no appellate interference. Whether the High Court Judge misdirected himself on common intention of the Second Appellant [63] The Second Appellant argued that the learned High Court Judge had misdirected himself by finding that the Second Appellant shared a common intention to commit murder. The Second Appellant contended that a "mere negative act", such as doing nothing to stop the assault on the Deceased or failing to seek medical attention, did not amount to common intention under section 34 of the Penal Code, which reads: Section 34 – 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. [64] The Second Appellant further argued that physical presence at the scene alone is insufficient; there must be evidence of a pre-arranged plan or active participation in the criminal act. The Second Appellant **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 25 claimed that he had not physically assaulted the Deceased, and at most, even if he was present, he argued that his conduct did not satisfy the requirements of section 34 of the Penal Code. [65] We drew guidance from the Federal Court case of Mohd Zainal Abidin bin Abdul Aziz v PP [2023] CLJU 213 which reaffirmed that to attract the application of section 34 of the Penal Code, the prosecution must prove:

(ii) There was a common intention among them to commit that criminal act; and

(iii) The act was done in furtherance of that common intention. [66] We were mindful of the Second Appellant's argument that his presence at the scene was based on an inadmissible police statement. However, we found his argument to be untenable for the following reasons. Common intention, as the Federal Court explained in Krishnan a/l Vasu v PP [2011] 5 CLJ 833, may be formed on the spot, and inferred from the conduct of the accused and the surrounding circumstances. [67] Consequently, the Second Appellant’s argument that mere presence or a "negative act" did not constitute common intention was unsustainable on the facts. Although the evidence against the Appellants was largely circumstantial, it established positive, affirmative acts by the Second Appellant at every subsequent stage of the disposal of the body of the Deceased. **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 26 [68] Assisting in Compressing Deceased into Suitcase – The Deceased weighed 85 kilograms. Compressing a body of that size into a suitcase, would have been a physically demanding task that could not have been accomplished by one person alone. A police re-enactment confirmed that it required joint effort of both Appellants. The Second Appellant's physical assistance in this act was circumstantial evidence of his participation in the criminal act of concealing the murder. It demonstrated his adherence to a shared objective with the First Appellant to dispose of the body of the Deceased, and to avoid detection. [69] Carrying Deceased and Loading the Vehicle – By helping to drag or carry the heavy suitcase downstairs and load it into the car boot, the Second Appellant was not a passive observer; he was an integral agent in the execution of the plan. We drew guidance from the Court of Appeal case of Balasingam a/l Krishnan v PP [2020] 2 CLJ 187, where it was held that participation in the disposal of a body is strong evidence of a shared criminal intent to conceal the primary offence. It is an act done in furtherance of the common design to evade justice. [70] Fleeing the scene – The circumstantial evidence had pointed to the inference that the Second Appellant had fled together with the First Appellant when the suitcase fell open and the body of the Deceased was exposed, was compelling evidence of a shared consciousness of guilt. Flight from the scene of a crime is admissible under section 8(2) of the Evidence Act 1950, as evidence of conduct influenced by a guilty conscience. In Sinniah v PP [1978] 2 MLJ 78, the Federal Court held that flight and subsequent concealment are relevant facts **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 27 from which an inference of guilt may be drawn. The Second Appellant did not remain at the scene to offer an explanation or seek help; he fled, demonstrating that he knew he was part of the criminal enterprise. [71] The most compelling circumstantial evidence of the Second Appellant's common intention and integral role is his orchestration of the cover-up. [72] This conduct of the Second Appellant fell squarely within the meaning of "in furtherance" of the common intention. The common intention was not only the assault itself but also the overarching plan to avoid liability. By fabricating a false narrative (the loan and borrowed bag), the Second Appellant took steps to ensure that both he and the First Appellant had distanced themselves from the murder. This is similar to the principle in PP v Dato' Seri Anwar bin Ibrahim (No. 3) [1999] 2 MLJ 1, where it was held that subsequent conduct aimed at concealing the offence was treated as evidence probative of guilt and shared intent. [73] The Second Appellant's reliance on PP v Dato' Mokhtar Hashim & Ors [1983] CLJ (Rep) 721 was misplaced. In that case, the court was concerned with a mere presence at the scene without any overt act. Here, it was our view that the Second Appellant's conduct was not passive. The circumstantial evidence pointed to the inference that the Second Appellant had done the following: a) Physically assisted in stuffing the body; b) Helped transport the body; and c) Fled the scene. **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 28 [74] This is not a case of "negative act" or "mere presence." It was a case of active, continuous, and essential participation. In Mohan Singh v PP [1975] 2 MLJ 179, the Privy Council held that where two or more persons act in concert to achieve a common purpose, the acts of one in furtherance of that purpose are attributable to all. The Second Appellant's acts were done in furtherance of the common purpose to conceal the crime and escape justice. [75] It is also pertinent to note that on 4 March 2026, the Second Appellant filed a notice of motion seeking leave of this Court to adduce fresh evidence, namely an alibi. The application was fixed for hearing on the same date as these Appeals, and was accordingly heard by this Court just prior to the commencement of the hearing proper of these Appeals. [76] Upon careful consideration of the submissions advanced by Counsel, we were not satisfied that such application had met the requisite threshold for the admission of fresh evidence at the appellate stage. In particular, we found that the Second Appellant had failed to comply with the established procedural requirements relating to the giving of notice of an alibi. We were further of the view that the purported alibi was an afterthought, raised only in response to the weight of the circumstantial evidence adduced against the Second Appellant. In the premises, and in the absence of any satisfactory explanation for such non-compliance, the application was accordingly dismissed. **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 29 Whether the High Court Judge erred in appreciation of the totality of evidence [77] The Appellants submitted that, upon a proper evaluation of the totality of the evidence, the learned High Court Judge fell into error in finding that their guilt had been proved beyond a reasonable doubt. [78] As noted earlier, the case against the Appellants rested entirely on circumstantial evidence. In such circumstances, it was incumbent upon this Court to be satisfied that the learned High Court Judge had properly evaluated that evidence and was correct in concluding that the cumulative effect of the circumstances pointed irresistibly to the guilt of the Appellants. Put differently, the evidence must form a complete and unbroken chain leading to no other reasonable inference than that of guilt of the Appellants, thereby satisfying the standard of proof beyond a reasonable doubt. [79] A more structured approach to evaluating such evidence was articulated in Lim Hean Chong v PP, [2012] 2 CLJ 1046, where the Court of Appeal through Hasan Lah JCA made reference to the Indian Supreme Court case of Chandmal & Anor v State of Rajasthan [1970] SC 917, SC, which set out a three-step test: [54] In Chandmal & Anor v. State of Rajasthan AIR [1970] SC 917, the Supreme Court of India in dealing with circumstantial evidence had this to say: It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. That is to say the circumstances should be **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 30 incapable of explanation on any reasonable hypothesis save that of the accused's guilt. [Emphasis added.] [80] The central question we had to address, therefore, was that articulated by Thomson CJ in Chan Chwen Kong v PP [1962] 1 MLJ 307, namely, whether the strands of circumstantial evidence, when woven together into a single rope, are sufficiently strong to sustain a finding of guilt. It is against this framework that we examined the following evidence adduced by the Prosecution, which required careful scrutiny by this Court. [81] Previous conduct (the abusive relationship) – It was our view that the learned High Court Judge was correct in admitting the evidence of the abusive relationship between the Deceased and Appellants, pursuant to sections 8(2) (conduct previous), 9 (relation of parties) and 14 (ill-will) of the Evidence Act 1950, as alluded to earlier in this judgment. [82] Last seen together – Secondly, was the fact that the Deceased was last seen with the Appellants. [83] The "last seen together" doctrine is a well-established principle in circumstantial evidence cases. It holds that if the deceased was last seen alive in the company of the accused, and his or her body is discovered shortly after with no reasonable explanation from the accused, the court may infer that the accused is responsible for the death. This inference arises because the accused has special **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 31 knowledge of what transpired during that period and is expected to provide an explanation. [84] We made reference to the decision of the Federal Court in PP v Muhammad Khairuanuar Baharuddin & Another Appeal [2025] 1 CLJ 517, where the court, in that case, had applied the “last seen together” doctrine and observed that the fact that the accused was the last person seen with the deceased provided him with the opportunity to have inflicted the injuries that ultimately caused the death of the deceased. [85] The “last seen” doctrine was also illustrated in Public Prosecutor v N Pathmanabhan & Ors [2016] 1 MLJ 17, a case arising from the murder of Sosilawati Lawiya and three others. The prosecution’s case was founded largely on circumstantial evidence, including the fact that the victims, comprising Sosilawati, her driver, her lawyer, and a bank officer, had travelled to Banting, Selangor, in connection with a purported land transaction and were last seen entering premises linked to the accused persons. [86] The court, in that case, had ultimately held that, when the evidence was considered in its totality, the chain of circumstances was complete and pointed irresistibly to the guilt of the accused, thereby justifying their conviction. [87] In the present case, the evidence established a clear and proximate timeframe linking the Appellants to the Deceased's death. PW1 testified that the Deceased was brought to the Appellants' rented house on 3 and 4 October 2020. It was undisputed that the Deceased was at the Appellants' residence on 4 October 2020, and **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 32 that her body was discovered two days later on 6 October 2020. This narrow timeframe was significant for two reasons. [88] First, pursuant to section 9 of the Evidence Act 1950, as referred to earlier, it corresponded with the period during which the Deceased would most likely have been killed, making time a relevant fact. [89] Secondly, it afforded the Appellants the opportunity to inflict the fatal injuries upon the Deceased, pursuant to section 7 of the Evidence Act 1950, which reads: Section 7 – Facts which are the occasion, cause or effect of facts in issue Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity of their occurrence or transaction, are relevant. [Emphasis added.] [90] It was, therefore, for the Appellants to provide a credible explanation for what happened to the Deceased while in their presence, as that fact would have been especially within their knowledge, thus triggering section 106 of the Evidence Act 1950, which reads: Section 106 – Burden of proving fact especially within knowledge When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. [91] Section 106 of the Evidence Act 1950 states that when any fact is especially within the knowledge of a person, the burden of proving that fact lies upon him. The provision is rooted in fairness and practicality in the law of evidence. It recognises that it would be **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 33 unjust and often impossible to require one party to prove matters that are peculiarly within the exclusive or special knowledge of the opposing party. Accordingly, where such circumstances arise, the evidential burden shifts to the person who has that special knowledge, because he is best placed to provide an explanation supported by facts within his personal knowledge. [92] A common illustration is where an individual is found in possession of circumstances that call for an explanation, such as being discovered travelling on public transport without a ticket. In such a situation, once the prosecution has established the basic foundational facts (for example, that the accused was on the train and did not produce a ticket when requested), it becomes reasonable to expect the accused to explain how he was lawfully travelling. The provision does not operate in isolation; it is triggered only after the prosecution has discharged its overall legal and evidential burden of establishing a prima facie case. [93] It is also critical to underscore that section 106 of the Evidence Act 1950 does not dilute or shift the overall legal burden that rests on the prosecution in criminal cases, which remains the obligation to prove guilt beyond a reasonable doubt. The provision only concerns the evidential burden relating to specific facts within the accused’s special knowledge. It cannot be used to require an accused to prove a negative or to fill gaps in a weak prosecution case. Courts have consistently cautioned, in cases such as Mary Ng v R [1958] MLJ 108, that section 106 of the Evidence Act 1950 is not a substitute for proof; it merely addresses situations where an explanation is **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 34 reasonably expected because the relevant facts lie particularly within one party’s knowledge. [94] Where a party fails to provide an explanation for such facts, the court is entitled to draw an adverse inference. However, such inference must be considered in the context of the totality of the evidence. It cannot, by itself, sustain a conviction unless the prosecution has already established the essential elements of the offence. In this way, section 106 of the Evidence Act 1950 operates as a rule of evidential convenience rather than a reversal of the fundamental presumption of innocence. [95] In the present case, section 106 of the Evidence Act 1950 applies squarely. The Deceased was last seen alive with the Appellants at their rented premises, and her body was discovered shortly thereafter. What happened to her during that intervening period is a fact especially within the Appellants' personal knowledge. [96] The Appellants, however, offered no reasonable explanation. Their account of a mysterious customer exiting a locked room defied logic. This was not a reasonable explanation. The Court was, therefore, entitled to draw an adverse inference against them. [97] To further strengthen our view, the evidence showed that the Appellants had exclusive control over the premises. The house was secured with an iron-grilled door, guarded by approximately 15 dogs, and there were no spare keys in existence. In fact, all keys were recovered from the First Appellant upon her arrest. On the First Appellant’s own testimony that they were the sole holders of the keys, it followed that no customer or third party could have entered **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 35 or exited the premises without their consent. The absence of any plausible explanation in this regard, therefore, added another link to the chain of circumstantial evidence against the Appellants. Taken together, these facts effectively eliminated any realistic possibility of third-party intervention. [98] Counsel for the First Appellant argued that the Deceased having been last seen with the Appellants did not necessarily mean that they were responsible for her death. We agreed that that fact alone may not have been sufficient to conclude the guilt of the Appellants beyond a reasonable doubt. However, in the present case, it was crucial to note that the "last seen" evidence did not stand alone. It was strongly supported by other facts, which the learned High Court Judge had duly considered in his overall assessment. [99] Discovery of Deceased’s DNA – A crucial fact was that the Deceased's DNA was found on a bloodstained cement bag seized from the Appellants' residence. This evidence was crucial because it physically placed the Deceased inside the Appellants' residence, corroborating the Prosecution's case that the Deceased was assaulted there before her body was discovered in a dumped suitcase. The presence of the Deceased’s blood at the scene contradicted the Appellants' defence and provided a direct forensic link between the Deceased and the crime scene. [100] The Appellants argued that the presence of an unknown "Male 1" DNA profile on a towel found in the car had created a reasonable doubt which should have been considered by the learned High Court Judge. **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 36 [101] We, however, rejected this contention. The incriminating value of the towel depended entirely on the contested police statements, which explained that the towel was used for strangulation. [102] By successfully excluding those statements, the Appellants stripped the towel of its evidentiary context. The Appellants cannot now ‘have their cake and eat it’, having removed the narrative that gave the towel meaning, they cannot now rely on its mere presence to create doubt. Once the statements were excluded, the towel became just an ordinary item in a car with an unexplained DNA profile which was irrelevant to the murder. [103] Subsequent conduct of Appellants – The subsequent conduct of the First Appellant was directly relevant under section 8(2) of the Evidence Act 1950, and was highly telling. At 6:46 am, a mere sixteen minutes after the victim's body was discovered by members of the public at approximately 6:30 am on the day in question, the First Appellant lodged a police report falsely claiming that the Deceased owed her RM800 and had borrowed a bag. The striking proximity between the discovery of the body and the lodging of the police report, coupled with the patently false narrative advanced therein, strongly suggested that the police report was not a spontaneous or innocent act, but rather a calculated and desperate attempt to create an impression favourable to the Appellants, and to distance themselves from the crime they had just committed. [104] In our view, the immediacy of the police report and the fabrication it contained, cannot reasonably be dismissed as a mere coincidence or coincidence of timing; instead, it points unmistakably to a **Note : Serial number will be used to verify the originality of this document via eFILING portal Q-05(M)-(304 and 305)-08/2023 5 May 2026 ----------------------------------------------------------------------------------------------------------------------------------- 37 deliberate and premeditated effort to shape the narrative at the earliest possible opportunity, that is, before any police investigation had even begun. Such scenario fell squarely within illustration (e) to section 8 of the Evidence Act, which reads: Section 8 – Motive, preparation and previous or subsequent conduct