Gopal Sri Ram JCA:

Introduction

[1] The appellant - I shall refer to him as the accused - was convicted of the offence of culpable homicide not amounting to murder under the first limb of s 304 of the Penal Code and sentenced to 18 years imprisonment. His appeal to the High Court was dismissed. He appealed to this Court and at the conclusion of arguments his appeal was dismissed by a majority decision. For reasons that will become apparent later in this judgment, I consider it my duty to enter my most vigorous dissent upon the result in this case.

The Case Against The Accused

[2] The nub of the prosecution's case against the accused was that on 19 April 1995, between 7.45 pm. and 9.00 pm. he intentionally caused the death of one Rabeah bte Abdul Hamid (whom I shall refer to as "the deceased") at a room in Wenworth Hotel, at Jalan Yew, Kuala Lumpur. The charge goes on to specify that the accused caused the deceased's death by strangling her with the strap of her handbag. It was therefore imperative for the prosecution to prove - at the end of the whole case - that the accused was present in the room at or about the material time.

[3] The evidence of circumstances adduced by the prosecution put at its highest disclosed the following points against the accused:

(i) At about 9.00 am. on 19 April 1995, the deceased was seen by members of her family, namely, her husband, PW5, her son PW6 and her daughter PW12. They testified that she had a Rolex watch, some jewellery and cash of RM21,000 on her person. According to them, the jewellery was of sentimental value to the deceased. They said that she would therefore not readily part with them.

(ii) The deceased was seen in the accused's company, in the afternoon of the day in question. This was at about 4.00 pm. at the Arab Malaysian Bank building along Jalan Raja Chulan. That is the evidence of PW13. The deceased ran a cafeteria at the building in question which the accused used to frequent.

(iii) The accused was constantly in a financially straitened position.

(iv) The accused had pawned the watch and jewellery in question with PW17 late on the night of 19 April 1995.

(v) The deceased's body was discovered on the night of 20 April 1995. An examination of the room revealed head and pubic hairs. These were sent to the Chemist (PW22). He compared them with samples taken from the accused. The comparison was only visual, under a microscope. No DNA tests for comparison were done. PW22 concluded from his mere visual examination that the hairs recovered at the scene were 75% physically similar to those taken from the person of the accused.

[4] Based on the foregoing circumstantial evidence the prosecution invited the sessions Court to convict the accused. As I have already said, that invitation was accepted and the verdict at trial was affirmed as correct by the High Court. In my respectful view there are two main reasons why the conviction of the accused is unsafe and ought to be quashed. First, the totality of the evidence led by the prosecution, taken together with the evidence in the accused's favour do not warrant an inference of guilt. Second, there was such a long delay in the production of the grounds of judgment by the sessions judge that resulted in an injustice to the accused. I will deal with each of these in turn.

The Failure To Prove Guilt

[5] I begin this part of the case by reminding myself that there is no added burden on the prosecution when it seeks to establish its case based on evidence of circumstances. See, ; [1998] 1 MLJ 537; [1998] 2 CLJ 383. The position is the same as when it relies on direct evidence. It must, at the close of the whole case prove the accused's guilt beyond a reasonable doubt. The danger - if it be a danger at all - of circumstantial evidence is that unlike direct evidence, it turns on the proper interpretation to be given to facts appearing in a set of circumstances. Where the result of the interpretation is the conviction of a person of a criminal offenc