Case note: Took Leng How v PP (Part II)

It was a gruesome murder case happened in Singapore. The deceased was Huang Na 黄娜, eight years old from mainland China.

Having said that, it is a good case for the comparison study on criminal and evidence law.

I would like to compare the case of Took Leng How (Singapore) and the case of Ahmad Najib (Malaysia). Ahmad Najib was convicted in the Malaysia High Court for murdering Canny Ong.


1. Time involved - From the date of crime to date of final judgment.

Huang Na was murdered on 10-10-04. Took Leng How was sentenced by the Court of Appeal on 26-1-06. The decision of CA is final and non-appealable. Took Leng How will be send to gallows if his petition for clemency failed.

Canny Ong was murdered on 14-6-03. Ahmad Najib was sentenced to death by the High Court on 23-2-05. The case is pending at the Court of Appeal. If the accused lost his case at CA, he will still have a chance to appeal to Federal Court on point of fact or law. Likewise, Ahmad Najib will also has a chance to ask for clemency from the Sultan of Selangor.

Conclusion: Since both are capital cases, it is not to the benefit of the accused to have a speedier trial. Justice rush, Justice burned. No credit to the Singapore judiciary system for such a speedier trial.

2. Both Took Leng How and Ahmad Najib chose to remain silent.

At the common law, the accused has 3 options namely: (a) To give sworn evidence in the witness box (b) to give unsworn evidence from the dock (c) to remain silent. It is not codified in the current Malaysian Criminal Procedure Code or Evidence Act.

Anyway, there is a proposed amendment to the Malaysia Criminal Procedure Code to insert Section 173(h)(i) by imposing a duty to the court to read and explain the three options for the defence to the accused. The proposed amendment is now at the Second Reading Stage at Dewan Rakyat.

In the case of Balachadran v PP, Augustine Paul JCA (as he then was) sitting in the Federal Court said:

"Since the Court, in ruling that a prima facie case has been made out, must be satisfied that the evidence adduced can be overthrown only by evidence in rebuttal it follows that if it is not rebutted it must prevail. Thus if the accused elects to remain silent he must be convicted. The test at the close of the case for the prosecution would therefore be: Is the evidence sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative then a prima facie case has been made out. This must, as of necessity, require a consideration of the existence of any reasonable doubt in the case for the prosecution. If there is any such doubt there can be no prima facie case. "

This is the first time the Malaysia Federal Court has made a ruling on the outcome of the option to remain silent. Perhaps, the counsel in the Ahmad Najib case will appeal to Federal Court base on this point of law in the event that they lost their case in the Court of Appeal.

Took Leng How chose not to testify at the trial, his counsel nevertheless raised two defences. One interesting point to note is that there is a concept of adverse inference in Section 196(5) of Singapore CPC which allows the court to draw whatever inferences as appear proper from an accused's failure to testify when called upon by the court to give evidence.

Singapore Court of Appeal commented that such inferences can go towards many things; the strongest inference being one of guilt itself. Having said that, the Court cautioned that the silence of the accused cannot fill in any gaps in the prosecution's case.

There is no concept of adverse inference for remaining silent in the Malaysia CPC. Base on this point alone, it appears to me the judgment in Balachandran (as highlighted by me in yellow) is not sound. The Parliamentary Select Committee on CPC probably should look at this aspect as well.