Subsequent Conduct: Absconding/ Flight

Explanation 2 of Section 8 of the Evidence Act states that when the conduct of any person is relevant any statement made to him or in his presence and hearing which affects his conduct is relevant. We can also further refer to illustration (h) where the fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal and the contents of the letter are relevant.

Per Augustine Paul J in Public Prosecutor v Chia Leong Foo, the fact that the absconding or flight of a person is admissible under Section 8 which allows inferences to be drawn. However, the absconding or flight of a person after the commission of the crime alone is not enough to be considered to show that the absconder was having any guilty mind and amount to admission of guilt. Such conduct must be considered

in the totality of the evidence adduced.

For instance, in Chan Kwok Keung & Anor v The Queen where the appellant were found stowed away nearly ten months after the commission of the crime. The prosecution led no evidence that they had been hiding for all or any part of this period. One of the appellant gave some information in his statement after his arrest to the police as to where the appellants were living or working but no evidence was given as to whether these leads were followed up. The prosecution failed to produce evidence to justify the jury that the only reasonable explanation for the appellants stowing away on the ship from Hong Kong to Macau was that they were on the run because they knew they might be arrested and charged with this murder. There could have been variety of other reasons for their having stowed away nearly ten months after the murder. Therefore, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind because even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime, such is the instinct of self preservation.

We can also make comparison between the case of Roslan bin Sabu v Public Prosecutor and Taib Mohammad v Public Prosecutor where both cases involved the possession of drugs. In the former case, James Foong JCA was of the view that the appellant's act of throwing away  the two bags and running off after the police had ordered him to stop can lead to one inference that the appellant knew what he was carrying were illicit drugs since the plastic used to wrap them were so transparent. The contents could be seen right through both the plastic bags and the plastic wrappers. Unlike the latter case where the plastic bag was black in color and the drugs were also wrapped with brown tapes. There was a likehood that the accused may not know the contents on the bag he was carrying because the strong color of the bag may conceal the identity of the drug and this will give benefit of the doubt to the accused that he had no idea what was he carrying. Therefore, it would not suffice to satisfy the mens rea element of the appellant on possession. The flight coming from the accused person after being arrested can equally be the reaction of an innocent but surprised person ( Per KV Vohrah J referred to a passage from the judgment in the Indian Supreme Court in Matru @ Girish Chandra v The State of UP). 

In a nutshell, in order for the act of absconding or flight to be capable of amounting to an admission of guilt, there must be some evidence which establishes a nexus between the conduct of the accused, his flight or concealment and the offence in question. However, if the accused fail to put forward any explanation of absconding after the occurrence of a crime is a point in favour of the prosecution (see Public Prosecutor v Chia Leng Foong).