The prosecution must establish guilt beyond reasonable doubt; failure to rebut strong circumstantial evidence leads to conviction under murder charges.

[1] The appellant was charged at the High Court with murder under s 302 of the Penal Code and at the end of the trial was found guilty by the learned judge. He was accordingly sentenced to death. The Court of Appeal affirmed the conviction and sentence, hence the appeal before us.

[2] The charge against the appellant reads as follows:

"Bahawa kamu pada 29 April 2003 jam lebih kurang 2.00 pagi di bilik No 105, Hotel Meyah, No 22, Jalan Tekun, Taman Maju Jaya, Johor Bahru, di dalam daerah Johor Bahru di dalam Negeri Johor Darul Takzim, dengan niat telah melakukan kesalahan bunuh hingga menyebabkan kematian ke atas seorang perempuan cina nama Choke Swee Fong KPT No 730115-08-5388 dengan menggunakan senjata sebilah pisau pemotong daging. Oleh yang demikian kamu didapati telah melakukan kesalahan yang boleh dihukum di bawah s 302 Kanun Keseksaan".

[3] The prosecution's case, traced from the evidence, was as follows:

By 30 April 2003, three partly burnt body parts of a woman were found at three different locations in Taman Johor Jaya, Johor Bahru, with the first partly burnt body part found in a dustbin behind a shop at Jalan Keembong 22, Taman Johor Jaya, Johor Bahru. That partly burnt body was from the waist to the knee. The second location was at Jalan Seroja 45, Taman Johor Jaya, Johor Bharu where the head to the waist was found. The hands of the deceased were found to be tied up to the back and the mouth was taped. The third location was behind a shop at Jalan Tekun, Taman Johor Jaya, Johor Bahru where a pair of human legs wrapped in a bed sheet bearing "Hotel Meyah" was found in a dustbin. The body parts were confirmed to be that of Choke Swee Fong, (ie the deceased holding KP: 730115-0805388), with the identification successfully carried out by one Go Bin Cha, ie the deceased's brother-in-law and the deceased's twin sister one Choke Swee Yee.

[4] The case of the prosecution was based on circumstantial evidence as no one saw the appellant committing the offence against the deceased. The High Court at pp 137 to 139 (paras 9 and 19) of the Record of Appeal and the Court of Appeal (p 12) in their respective grounds of judgment were clearly aware that the prosecution depended very much on circumstantial evidence to prove its case. The High Court, after undergoing a thorough exercise over certain authorities, which dealt with circumstantial evidence, remarked:

"Jelas daripada kes-kes di atas sekiranya pihak pendakwaan bergantung kepada keterangan mengikut keadaan, maka ia adalah amat berat dan setiap apa keterangan yang hendak digunapakai hendaklah sesuatu yang tidak boleh disangkal atau digugat yang menjurus kepada kebersalahan tertuduh."

[5] On this evidential approach, the Court of Appeal stated:

"In view of the fact that the evidence adduced against the appellant was circumstantial, it was incumbent upon the Court to determine whether the total effect of the evidence leads to the irresistible inference that it was the appellant who committed the crime."

[6] Simply put, the onus on the prosecution where the evidence relied upon is circumstantial, is a heavy one. Any gaps in the evidence will not suffice to lead to a conviction ( Chang Kim Siong v. PP , 1949 MarsdenLR 249 ). Therefore the prosecution's case should not be long in irrelevancies or short in evidence but by necessity must adduce cogent and cumulative evidence that points irresistibly to the guilt of the accused person. In Chandmal & Anor v. State of Rajasthan [1970] AIR SC 917 the Court remarked that in order to be successful in its prosecution based on circumstantial evidence, the chain of evidence must be so complete as to point unerringly to the guilt of the appellant.