Sunny Ang v PP: A Review

Take the circumstances in the Sunny Ang case in the context of the Malaysian Penal Code and judiciary system as it is today. Would the decision have been similar?

If we properly scrutinize the decision of Sunny Ang, it is clear that there is one missing element of murder i.e., death. There was no prove that the accused’s girlfriend, Jenny Cheok died. She had merely been missing after the couple’s scuba diving trip in the straits between Sisters’ Island. Her dead body was never found.

The unanimous decision to sentence the accused to death was made in the High Court, by a seven-man jury. It must be noted that juries are laymen, and if not properly guided by the counsels or court, would most likely be guided by emotions of their own. The accused went on to appeal against the decision of the High Court at the Federal Court and the Privy Council but both applications were rejected.

The Federal Court ruled that the incident was not a mere accident. This is true, for the circumstances, when roped together, would clearly show the intention to cause death on the part of the accused.

One of the contentions for the appeal was that the trial judge erred in law in failing to direct the jury on a possible verdict of culpable homicide not amounting to murder. Learned judge also went on to state that it was not necessary to give that direction to the jury and that the case was one in which the appellant was either guilty of murder or not guilty of any offence whatsoever. Question: Could attempt to murder be a more suitable charge? (See S307 Penal Code, particularly illustration b).

Illustrations (a) to (d) of S300 of the Penal Code contains the element of death of a victim as a consequence of acts of an accused. The opening words of S299 of the Penal Code reads “whoever causes death”. Death appears to be a necessary element. Without the death of Jenny Cheok, all the other evidences could only have proven intention to murder. The acts of preparing to cause death alone should not have been sufficient to convict the accused of murder.

In a nutshell, the decision could have been different if the sentence was not made by a seven-man jury. They ought to have been informed of the ingredients/elements of murder before they decided to sentence the accused to death. 

Circumstantial Evidence II

Circumstantial evidence is evidence of relevant facts from which the existence or non-existence of facts in issue may be inferred. S 5 of the Evidence Act provides that if the evidence is relevant, then it is admissible. Thus, circumstantial evidence is admissible but with a lesser degree of probative value.

One famous case on circumstantial evidence is Sunny Ang v PP (which had been discussed at length in one of our earlier blog posts). In the case of Johar bin Mustapa v PP, the accused was convicted for drug trafficking. Some of the circumstantial evidence which lead to the conviction was that: the accused opened the trunk of the car, removed the bag and threw it away right after the car crash; the accused chased away those who came forward to help him; the accused looked confused when approached; and the accused ran away when he saw the police.

In the case of Yeap Boon Hai v PP, the court relied fully on circumstantial evidence in convicting the accused of murder by setting fire to the family home. Among the circumstantial evidence were: the neighbour living opposite the accused saw him ascending the staircase alone at 3.50am in the morning; the petrol station attendant said the accused had earlier bought petrol with four empty plastic containers; the accused’s brother and sister-in-law testified that the accused argued with his wife when she asked for a divorce; the neighbour next door hear them quarrel at about 3.30am; a chemist testified that the liquid which was in the plastic containers was petrol which had in fact evaporated; the officer of the fire department testified that the fire was started with inflammable liquid such as petrol; and the pathologist testified that the cause of death was from smoke inhalation.

However, in PP v Sarjit Kaur, the accused was found not guilty of the murder of her husband on the following circumstantial evidence which were seen as weak by the court: the accused was an unfaithful wife and was ill-treated; the accused stood to benefit financially from her husband’s death; traces of blood stains were found on a dress belonging to the accused; and the accused had insisted that the maids and her three children go to bed earlier.

The two famous tests used in applying circumstantial evidence are the ‘Irresistable Conclusion Test’ and ‘Beyond Reasonable Doubt’. The Irresistable Conclusion Test is that the judge in looking at all the circumstantial evidence must come to the irresistable conclusion that the accused is guilty, as seen in R v Hodge. The House of Lords in Mc Greevey v DPP stated that when an accused is proved to be guilty beyond reasonable doubt, there is no need for a special direction of the Irresistable Conclusion Test.