"Is that rope strong enough to hang the prisoner?” in Chan Chwen Kong v Public Prosecutor [1962] 1 MLJ 307
Posted on Monday, November 26, 2012 by Unknown
Circumstantial evidence
may be defined as any fact arising from the existence of which the judge may
infer the existence of a fact in issue. It is not the evidence direct to the
point in issue, but evidence of various facts other than facts in issue which
are so connected with the facts in issue that taken together they form a chain
of circumstances leading to an inference or presumption of the principal fact.
For example, at the
trial of A for murder, a witness says that he saw A carrying a gun at the
premises of the house in which the deceased was found shot dead 10 minutes
later. Here what the prosecution is actually trying to do is that by way of
circumstantial evidence it is inviting the Court to infer hat the accused shot
the deceased.
In Chan Chwen Kong v Public
Prosecutor [1962] 1 MLJ 307, the appellant appealed against his conviction
for murder. The evidence against the appellant was circumstantial and Pike CJ
(Borneo) in giving the judgment of the Federal Court allowing the appeal said:
“The
onus of the prosecution where the evidence is of the circumstantial nature is a
very heavy one and that evidence must point irresistibly to the conclusion of
the guilt of the accused. If there are gaps in it, then it is not sufficient.”
Cases:
1. Karam Singh
v PP [1967] 2 MLJ 25
The appellant appealed against his
conviction for murder. There was no eyewitness of the attack on the deceased,
the prosecution case was based entirely on circumstantial evidence. Ong Hock
Thye FJ, as he was then, in giving judgment of the Federal Court said:
‘In
case where the prosecution relies on circumstantial evidence, such evidence
must be inconsistent with any other hypothesis than that of the guilt of the
accused.’
2. Muniandy
v I [1973] 1 MLJ 179
Appellant was charged with rape, it appeared that the only evidence which could corroborate the evidence of the
complaint was circumstantial evidence. The appellant was convicted and he
appealed to the Federal Court. Ong CJ in giving judgment of the Federal Court
allowing the appeal said:
‘Wherever
circumstantial evidence is relied on by the prosecution in building up its case
against an accused person, any such piece of evidence must tend only in one
direction, that is to say, suggest or lend support to an inference of guilt.
This evidence, if capable of an innocent interpretation – or ambiguous, as
being equally consistent with guilt or innocence – should never be placed
before the jury as circumstantial evidence strengthening the prosecution case.
Any summing-up which fails to explain this intelligibly to the jury is a
serious misdirection. All the more so, where, in the instant case,
circumstantial evidence more consistent with innocence than guilt was
represented to the jury as corroboration of the complainant's evidence. On the
other hand, where the circumstantial evidence is seen to be strongly in favour
of the defence, a proper trial requires that, in the interests of justice, this
fact be brought to the notice of the jury and not passed over as an irrelevant
detail.’
3. Sunny Ang
v PP [1966] 2 MLJ 195
The appellant had been convicted of
murder. One of the matters relied on at the hearing of the appeal was that the
learned trial judge had erred in law in failing adequately to direct the jury
on the danger of convicting an accused person upon circumstiantial evidence. In
his summing up the learned trial judge had said:
‘The
second question to which I must draw your attention is that the question in
this case, depending as it does on circumstantial evidence, is whether the
cumulative effect of all the evidence leads you to the irresistible conclusion
that it was the accused who committed this crime. Or is there some reasonably
possible explanation such, for example – 'Was it an accident?'.’
Later he said:
‘Now,
as I told you earlier on, one of the points about circumstantial evidence is
its cumulative effect. Any one of these points taken alone might, you may
think, be capable of explanation. The question for you is: where does the
totality of them, the total effect of them, all lead you to? Adding them
together, considering them, not merely each one in itself, but altogether, does
it or does it not lead you to the irresistible inference and conclusion that
the accused committed this crime? Or is there some other reasonably possible
explanation of those facts?
The
prosecution case is that the effect of all this evidence drives you inevitably
and inexorably to the one conclusion and one conclusion only: that it was the
accused who intentionally caused the death of this young girl.’
It was held in the Federal Court that
those directions were perfectly adequate in a case where the prosecution was
relying on circumstantial evidence.
The following appears
to be the general principles observed by the Courts when dealing with a case
merely on circumstantial evidence:
1. Every
fact or circumstantial on which the prosecution relies must be clearly proved
beyond the shadow of any doubt;
2. The
incriminating circumstantial must lie incompatible with the innocence of the
accused and incapable of explanation upon any other hypothesis than the guilt
of the accused;
3. The
circumstantial from which the conclusion of guilt is to be drawn should be
fully establishes, i.e. there must be chain of evidence so far complete as not
to leave any reasonable ground for a conclusion consistent with the innocence
of the accused and it must be such as to show that within all human
probability, the act must have been done by the accused; and
4. The
circumstantial should be of a conclusive nature and tendency.
Another issue which has
been the subject of judicial observation is whether the standard of proof
varies where the case for the prosecution rests entirely on circumstantial
evidence. In other words, the prosecution is unable to present direct evidence
of the facts in issue and has to rely on evidence of relevant facts from which
the facts in issue may be inferred. Normally the prosecution will have to
adduce evidence of a variety of relevant facts which must cumulatively and in
combination establish the case against the accused beyond a reasonable doubt.
A useful metaphor is a
cord or rope which consists of a number of strands (each strand representing an
item of circumstantial evidence). As the rope is as strong as its strands, a
single strand may not be sufficient to establish accused’s guilt. However, the
combined effect of several strands may justify his conviction.
The position with
regard to proof based on circumstantial evidence is that the standard of proof
remains the same whether there is direct evidence of the elements of the crime
or not. The Court of Appeal states in PP v
Oh Laye Koh [1994] 2 SLR 120;
‘There
is one and only of principle at the close of the trial, that of guilt beyond
reasonable doubt, and this principle applies equally to cases where he
prosecution evidence is wholly circumstantial as it does to those where direct
evidence is adduced.’
Where direct evidence
of the elements of the crime is unavailable, the court may be more cautions
before finding that the case has been proved beyond a reasonable doubt.
Circumstantial evidence can nevertheless be more weighty than direct evidence.
For example, finger prints or DNA would be more persuasive than the
identification testimony of an eye-witness who is shown in cross-examination to
be unreliable or biased.
As a
conclusion, it be seen by an illustration of a rope as in the figure above. The
lower part of the rope which looks like hundreds of threads evidence shows that
they are not strong, they have gaps between them and they can easily be broken
apart while the middle part of the rope which is the result of combination of
the hundreds of small threads looks so strong, unbreakable and had no gap
between them. The lower part of the rope can be illustrated as the
circumstantial evidence while the middle part of the rope can be illustrated as
the result of the combination of all the circumstantial evidence.
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1 Response to ""Is that rope strong enough to hang the prisoner?” in Chan Chwen Kong v Public Prosecutor [1962] 1 MLJ 307"
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Nada Says....From my view, when it comes to circumstantial evidence, the circumstances must proved satisfactorily and it should be consistent at the same time with the hypothesis of the guilt of the accused. There must be a complete chain of evidence to show that the act must have been done by the accused. In other words, it can be said as evidence which does not derived directly but are connected with the facts in issue which is something totally different to the principle of direct evidence.
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