Kang Chang Heng v Public Prosecutor

Appellant(s): Kang Chang Heng

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Datuk Noorin binti Badaruddin
• YA Datuk Mohd Radzi Bin Abdul Hamid
• YA Datuk Meor Hashimi bin Abdul Hamid

• The appellant was charged with four counts of murder and one count under s 324 of the Penal Code arising from a home invasion in which two elderly persons and two young children were killed, and an 11-year-old surviving child was slashed twice on the neck before the house was deliberately set alight with petrol.
• The appellant was initially acquitted at the close of the prosecution's case without being called to defend himself, but a differently constituted Court of Appeal panel earlier allowed the prosecution's appeal, held a prima facie case was made out, and ordered him to enter his defence.
• Following a full trial, the High Court convicted the appellant on all five charges, sentencing him to death on each murder charge and nine years' imprisonment on the s 324 charge; he appealed against both conviction and sentence.

• Whether the trial judge misapprehended or failed to properly consider the appellant's defence (that he was present at the scene as a would-be rescuer, acting under threats from an "Ah Long" and a person called "Boss"), such that a reasonable doubt ought to have arisen.
• Whether the eyewitness identification evidence of the child survivor, given his age and the circumstances of observation, was sufficiently cogent and reliable to sustain a conviction.
• Following the abolition of the mandatory death penalty under Act 846, whether the amended s 302 of the Penal Code's sentencing discretion should result in the death penalty or the alternative term of imprisonment (30–40 years with whipping), and what principles govern that discretion.

• The Court held that the child eyewitness's identification was cogent and reliable, as he had known the appellant personally for over a year and had multiple clear opportunities to observe his face during the attack; discrepancies in his testimony did not go to the core of his recognition evidence.
• The Court found the appellant's "rescuer" defence inherently improbable and inconsistent with the objective and forensic evidence (including his failure to alert anyone, and his direct assault on the child witness), holding that the defence did not raise a reasonable doubt and the prosecution had proven all five charges beyond reasonable doubt.
• On sentence, the Court declined to import India's "rarest of the rare" doctrine rigidly into the Malaysian statutory scheme, but held that the cumulative aggravating factors—multiple deaths, victim vulnerability, sustained brutality, deliberate arson, and the harrowing ordeal of the child witness—demonstrated such viciousness and disregard for human life as to warrant the death penalty under the amended s 302; the death sentences and the nine-year sentence under s 324 were accordingly affirmed and both appeals dismissed.