THAN NWE SOE v Pendakwa Raya [Jabatan Peguam Negara]

Case Significance

Upholds a murder conviction under section 302 read with section 34 of the Penal Code on circumstantial evidence including the "last seen together" principle and DNA, and exercises the discretion under the Abolition of Mandatory Death Penalty Act 2023 to impose 30 years' imprisonment and 12 strokes.

This Court of Appeal decision concerns an appeal against conviction and sentence for murder under seksyen 302 Kanun Keseksaan (section 302 of the Penal Code) read with seksyen 34 Kanun Keseksaan (section 34 — common intention). The prosecution against the appellant began in the High Court at Johor Bahru on a charge that, together with a person still at large, the appellant murdered a named deceased on 13 April 2018 at a motor trading premises in the Johor Bahru district. The appellant claimed trial, eighteen prosecution witnesses gave evidence, and at the close of the prosecution case the trial judge found a prima facie case and called on the appellant to enter a defence.

The evidence relied on by the prosecution included CCTV recordings, and the court accepted that the "last seen together" principle could be used as part of the supporting evidence. It found that exhibits such as a piece of wood, cloth and a padlock chain had been recovered as a result of information and pointing out by the accused, and that DNA of both the accused and the deceased had been found, establishing the material fact that the accused had been together with the deceased. The injuries were held to be fatal in nature and inconsistent with self-infliction or accident, and the court found that the death resulted from a pre-arranged and orchestrated plan by the accused and another who remained at large, so that the issue of common intention was made out, the accused's conduct being relevant under seksyen 8 Akta Keterangan 1950 (section 8 of the Evidence Act 1950).

The court held that the defence had been demolished by the prosecution witnesses and by the accused's own evidence, and was a bare denial, an afterthought and a fabrication. On sentence, following the Abolition of Mandatory Death Penalty Act 2023 (Act 846), which conferred a discretion to impose either death or imprisonment for not less than 30 and not more than 40 years, with not fewer than 12 strokes of the cane if death is not imposed, the court exercised its discretion to substitute the sentence imposed at trial, ordering imprisonment for 30 years from the date of arrest and 12 strokes of the cane. The judgment illustrates the appellate treatment of a circumstantial murder case and the exercise of the sentencing discretion under Act 846.