JUDGMENT

Some Malays went one night to destroy idols in a Hindu temple in Kerling. Some Indians had been expecting the attack and were guarding the temple, and as a result there was a fight. Four of the Malays were killed and the eight applicants were convicted in the Sessions Court, Klang, under s. 304and 34 of the Penal Codeand sentenced to various terms of imprisonment. Their appeals to the High Court were dismissed and on their application the learned Judge who heard the appeal (Syed Othman, FJ), acting under s. 66(1) of the Courts of Judicature , reserved for our decision the following questions of law of public interest which had arisen in the course of the appeal and the determination of which by the learned Judge had affected the event of the appeal:

1. Whether it is correct law that in dealing with a case which relies on circumstantial evidence it does not make any difference if a Court finds that in considering all the evidence it is satisfied beyond reasonable doubt that the accused is guilty of the offence or if the Court says that the evidence points only to the irresistible conclusion that the accused is guilty.

2. Whether compliance by any person to a request by a police officer not to leave a prescribed place constitutes submission to custody by that person within the meaning ofs. 15 of the Criminal Procedure Code.

3. Whether an oral statement made by a person before his arrest to a police officer of or above the rank of Inspector can be admitted as evidence against him where such statement has not been reduced into writing.

Question 1

Mr. Vijandran submits that the answer to this question is that it is not correct - meaning that in a case depending on circumstantial evidence the conviction cannot stand if the Court merely says that the prosecution case has been proved beyond reasonable doubt; the Court must go further and say that the facts proved irresistibly point to one and only one conclusion, the guilt of the accused. Encik Mokhtar on the contrary submits that it is correct - meaning that it is enough if the Court merely says that it is satisfied of the guilt of the accused beyond reasonable doubt without further saying that the facts proved irresistibly point to one and only one conclusion, the guilt of the accused.

With respect we agree with Encik Mokhtar, following the House of Lords decision in Mc Greevy v. Director of Public Prosecutions[1973] 1 WLR 276, and thus modifying the ruling of this Court in several local cases which seems to lay a heavier burden of proof on the prosecution where it depends on circumstantial evidence than where it depends on direct evidence.

Some of these local cases are mentioned by Professor Ahmad Ibrahim in a note on circumstantial Evidence at [1973] 1 MLJ xlvi and they are Kartar Singh & Anor. v. PP[1952] MLJ 85, Idris v. PP [1960], Chan Chwen King v. PP [1967],Sunny Ang v. P.P.[1965],Karam Singh v. PP [1967],Chang Kim Siong v. PP [1967] and Muniandy v. PP[1973] 1 MLJ 179.

In Kartar Singh[1952] MLJ 85, the appellants had been convicted of the offence of culpable homicide not amounting to murder. Murray Aynsley CJ in giving the judgment of the Singapore Court of Criminal Appeal brought out the difference between the effect of direct and circumstantial evidence. Allowing the appeal, he said:

The case against the appellants was put carefully and accurately to the jury. We consider however that this is one of the cases in which the evidence even if believed, did not constitute proof of the guilt of either of the appellants. Here it is necessary to distinguish between the effect of direct and circumstantial evidence. Where there is direct evidence, however slight, the jury are entitled to accept it and the case should be left to them to decide. In the case of circumstantial evidence the position is different. Here the evidence must be such that, if it is believed there is no reasonable alternative to the guilt of the accused. If there is anything less than this it is no case at all.

In