1. ) TAN KHIM SIANG 2. ) LOW SHI HAUR 3. ) XXXX

1. ) TAN KHIM SIANG 2. ) LOW SHI HAUR 3. ) XXXX

After maximum evaluation the court found prosecution failed to make out a prima facie case for murder under s302 read with s300(c) because of unresolved issues on causation and intervening medical treatment and insufficiency of identification/evidence to sustain murder beyond reasonable doubt. However the evidence (postmortem showing severe blunt head injuries, CCTV showing repeated assault by five persons and identification evidence) was sufficient to establish a prima facie case for culpable homicide not amounting to murder under s304(a) read with s34. Court therefore validly amended the charge under s158 CPC and proceeded accordingly; certain accused pleaded guilty and were convicted...

Citation
BA-45B-22-05/2019 (Mahkamah Tinggi)
Parties
Prosecution: Pendakwa Raya; Defendant: Tan Khim Siang; Defendant: Low Shi Haur; Defendant: Ng Shen Wei; Defendant: Low Yong Xian; Defendant: Ng Shen Yik
Court
High Court
Jurisdiction
Malaysia
Judgment Date
2 August 2024
Case Number
BA-45B-22-05/2019 (Mahkamah Tinggi)
Procedural Posture
Criminal Trial Homicide / After Close of Prosecution; Charge Amended and Defendants Called to Enter Defence; Plea and Mitigation Stage
Outcome
Court rejected prosecution case for murder (no prima facie for s302) but found prima facie case for culpable homicide not amounting to murder (s304(a) read with s34); charge amended under s158 CPC; accused called to enter defence; some accused pleaded guilty and were convicted on amended charge.
Legal Topics
Murder, Culpable Homicide Not Amounting to Murder, Common Intention (s34), Identification by CCTV, Prima Facie Under S180 CPC, Charge Amendment Under S158 CPC
Source Language
Malay/English
Criminal Law Evidence Law Forensic Medicine Murder Culpable Homicide Not Amounting to Murder Common Intention (s34) Identification by CCTV Prima Facie Under S180 CPC +1 more

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Parties

Pendakwa Raya

Prosecution

Tan Khim Siang

Defendant

Low Shi Haur

Defendant

Ng Shen Wei

Defendant

Low Yong Xian

Defendant

Ng Shen Yik

Defendant

Procedural Posture

Criminal Trial Homicide / After Close of Prosecution; Charge Amended and Defendants Called to Enter Defence; Plea and Mitigation Stage

Legal Issues

  1. 1 Whether prosecution established a prima facie case for murder under s302/ s300(c)
  2. 2 Whether identification by CCTV and comparison evidence (P26, P27, P53) sufficiently and credibly identified the accused
  3. 3 Whether injuries and medical evidence proved causation and death was caused by intentional injuries sufficient in ordinary course of nature to cause death

Ratio Decidendi

After maximum evaluation the court found prosecution failed to make out a prima facie case for murder under s302 read with s300(c) because of unresolved issues on causation and intervening medical treatment and insufficiency of identification/evidence to sustain murder beyond reasonable doubt. However the evidence (postmortem showing severe blunt head injuries, CCTV showing repeated assault by five persons and identification evidence) was sufficient to establish a prima facie case for culpable homicide not amounting to murder under s304(a) read with s34. Court therefore validly amended the charge under s158 CPC and proceeded accordingly; certain accused pleaded guilty and were convicted...

Court Disposition

Court rejected prosecution case for murder (no prima facie for s302) but found prima facie case for culpable homicide not amounting to murder (s304(a) read with s34); charge amended under s158 CPC; accused called to enter defence; some accused pleaded guilty and were convicted on amended charge.

Orders

  • Charge amended to: offence under Section 304(a) Penal Code read with Section 34 Penal Code (text of amended charge recorded in judgment)
  • Accused called to enter defence on amended charge pursuant to s180(3) CPC