Tuesday 11 April 2017

DEVELOPMENT OF LAW OF PRIMA FACIE IN MALAYSIA

1.0 Prior Amendment 1997
The history of development for the degree of proof required to establish a prima facie before Criminal Procedural Code amendment case can be divided into 3 parts. The first part is before the case of Haw Tua Tau v Public Prosecutor[1]. The second part is at the time of the case of Haw Tua Tau V Public Prosecutor and the third part is after the case of Haw Tua Tau v Public Prosecutor. Basically, prior to 1997, there were debates on what degree of prima facie should be established by prosecution in charging someone under criminal offense. Before the case of Haw Tua Tau, Malaysia court applies the degree of proof as maximum evaluation and beyond reasonable doubt to establish a prima facie case at the close of prosecution’s case. This can be seen through Section 173(f) and 180 of CPC.
Prior to its amendment, Section 173 (f) CPC read as follows:
If upon taking all the evidence herein before referred to, the Court finds that no case against the accused has been made out, which if unrebutted would warrant his conviction the Court shall record an order of acquittal.’
The above provision means that after producing evidence to establish prima facie case, the Court finds no case against accused that would convict him, then the Court shall give order for acquittal.
Meanwhile, Section 180 CPC which provides that;
When the case for the prosecution is concluded, the court, if it finds that no case against the accused has been made out, which if unrebutted would warrant his conviction, shall record an order of acquittal or if it does not so find, shall call on the accused to enter his defence.
The above provision states that after the trial proceeding, if accused could not rebut the material evidences adduced by prosecution, then he would be convicted. However, if prosecution could not proof the credible evidences, then the accused will be acquitted or he may be called for defence.
Before going further to disclose development of prima facie in Malaysia, it is vital to know the meaning first. Black’s Law Dictionary defined prima facie as a party’s creation of enough evidence to allow the fact at issue and rule in the party’s favour[2]. The definition of prima facie also can be seen in Burton Legal Thesaurus by William Burton that says, prima facie is adequate, lawfully sufficient, legally adequate, satisfactory, sufficient on its face, sufficient on the pleadings, sufficient to make out a case and sufficiently strong. This means that, prima facie is apparently seen at first glance before further examination had been done.
It must be noted that the burden of proof lies on prosecution to adduce evidences and disclose materials to establish prima facie case. The degree of proof can be defined as a burden imposed on a party to prove certain facts in issue. The burden of proof also sometimes referred to as the persuasive burden, or phrases which indicate that a party bearing the legal burden on a fact in issue will lose on that issue if the burden is not discharge to the required standard of proof. In the case of Woolmington v DPP, Lord Viscount Sanky stated that it is the duty of the prosecution to prove the prisoner’s guilt beyond reasonable doubt. Failure to do so, accused would be acquitted.
We can learn further about prima facie case by looking into certain cases that states about prima facie like the case of A. Ragunathan v PP[3]. In this case, the Court held that according to the given statement, the Court has to determine whether to accuse the person by relating the statement with elements in the charge, and if accepted the charge against him will be prosecuted. This means that, prosecutor need to provide certain materials or adduce certain evidence to establish prima facie against accused person. It must be noted that this is an important case that became the landmark for judges in deciding about maximum evaluation and required degree of proof beyond reasonable doubt. In other words, the Court applied strict rule for prosecution in order to establish prima facie case.
In the case of PP v Abdullah bin Ismail[4], Justice Seah said that the test of a prima facie case is when the evidence adduced by prosecution is accurate, then that established the case against accused beyond reasonable doubt. Also in the case of PP v Chin Yoke[5], the Court ruled that when prosecution entitled for prima facie case, it means that he has evidence that cannot be rebutted by the opposing party. The court also held that a prima facie case can be seen at the end of the prosecution case and then the accused will be called to plead guilty or call for defence. If he was to be called for defence, then he must rebut the prima facie which has thus been made out against him beyond reasonable doubt. Here we can see that the Court apply for maximum evaluation in establishing prima facie case as well as maximum evaluation for defence to rebut it beyond reasonable doubt. However, if after weighing up such evidence for the prosecution and resulting there is no prima facie case, the accused would not be called on for his defence and he/she will be acquitted. Therefore it can be concluded through this case that it is very important for the prosecution to prove their case beyond reasonable doubt in order to put a charge against accused. If prosecutor failed to do so, accused will be acquitted.
Also, a similar approach was espoused in Public Prosecutor v Saimin[6] where Sharma J affirmed that the burden of proof remains on the prosecution throughout the trial to prove prima facie case beyond reasonable doubt. This would mean that before the defence could be called, the court had to make a maximum evaluation of the evidence adduced by the prosecution and that the prosecution witnesses would have to be subjected to a rigorous test of credibility.  The Court held like so based on the case of A. Ragunathan v PP and also from Section 173(f) and Section 180 of CPC before amendment. In both of these provisions, the phrase ‘if unrebutted would warrant his conviction’ would demand an exceptionally concrete reason before the accused is called to answer the charge. Therefore maximum evaluation and degree of beyond reasonable doubt needed to establish prima facie case.
Therefore, it is essential to know that at the very beginning, the Court applied for maximum evaluation and very strict rule in order for prosecution to prove prima facie case beyond reasonable doubt. This strict approach was applied by our courts quite consistently until the Privy Council’s decision on appeal from Singapore in the case of Haw Tua Tau v PP. This is a very important case that has been a landmark for minimum evaluation and lower degree of proof where Lord Diplock held that Section 188 of the Singapore CPC (identically worded as our Section 173(f) CPC before amendment) only involved a hypothetical question of law requiring minimal evaluation of the evidence at that stage. Lord Diplock further stated that the court must act on the presumption that all such evidence of primary facts is true, unless it is inherently incredible[7] that no reasonable person would accept it as being true, and there will be nothing to displace those inferences reasonably drawn from the primary facts. In other words, the Court applied for lower standard of proof that based upon the minimal evaluation of the prosecution evidence. However, if the accused remain silent, the Court will consider that defence has failed to rebut the presumption made by prsecution, and resulting to the accused to be convicted. This also can be seen in the case of Wong Ah Mee v PP[8], where the magistrate held that when the accused remain silent, this will amount to a conviction. Hence, it can be seen that through the case of Haw Tua Tau, the Court applied for minimal evaluation of proof rather than beyond reasonable doubt. However, silence as to defence will be considered as convicted.
On the third part which is after the case of Haw Tua Tau, the degree of proving prima facie again changed. This can be seen by viewing to the case of Pavone v PP[9], Edgar Joseph J noted that the case of A. Ragunathan v PP[10] bound him in the High Court. According to his lordship, the sole question at the close of the case of the prosecution is whether or not a prima facie case has been made out, that is to say, whether there is some evidence which, if believed, establishes the essential elements of the offence charged. If there is such evidence, then the defence must be called. However, if the accused elects to remain silent and calls no evidence, the judge opined that there is nothing illegal if magistrate, upon prima facie evidence being adduced and then acquit the accused even though the accused elects to remain silent, under the condition that the judge not satisfied that the charge has been established by the prosecution beyond reasonable doubt. Here, it shows how important for prosecution to prove prima facie beyond reasonable doubt.
Also, in the case of PP v Man bin Abbas[11], it was held that if proven that there is a prima facie case in the end of the prosecution case, there will be a call for defence, and if the accused remain silent, he will be convicted[12]. Therefore, it is important for the prosecution first to proof the prima facie beyond reasonable doubt in order to put a criminal charge against accused since the Court applied for maximum evaluation. So here, we can see that the Court overruled strict rules for establishing prima facie case.
In addition, at year 1987, Mohd Azmi SCJ in Munusamy v Public Prosecutor[13] stated that, the learned trial judge did not err in law in dealing with the credibility of the witnesses at the close of the prosecution case and there was nothing in Haw Tua Tau to suggest that the prima facie case approach enunciated in PP v Chin Yoke[14] was wrong in principle. This means that the Court may not have to follow the lenient rule in case of Haw Tua Tau in establishing prima facie case. It connotes that the prima facie case is based on a ‘hypothetical beyond reasonable doubt’ case as the court must by necessity evaluate and weigh all the evidence which if not rebutted would warrant a conviction.
However, a bit different in the case of Tan Boon Kean v Public Prosecutor[15] where Mohd Azmi FCJ held that the case required to be established at the end of the prosecution case is ‘prima facie’ and not ‘beyond reasonable doubt’ even though the court has to carry out a maximum evaluation of the evidence. These conflicting decisions eventually necessitated a seven-judge panel to resolve the issue which arose again in the landmark case of Arulpragasan a/l Sandaraju v Public Prosecutor[16]. The Federal Court, in ruling on the appeal of a lorry attendant S. Arulpragasan who was sentenced to death for drug trafficking, decided that the standard of proof required from the prosecution at the close of its case, in a non-jury trial in Malaysia was the usual criminal standard of proof, to wit, the beyond all reasonable doubt standard of proof, which called for a maximum evaluation of the evidence tendered by the prosecution. On the other hand, Eusoff Chin CJ also held that if the accused elects to remain silent and calls no evidence, he would have failed to rebut the evidence adduced by the prosecution and the court must be prepared to convict him. Thus, it is trite law that the onus is on the prosecution throughout the case in any criminal trial to prove the charge against the accused beyond reasonable doubt. To this effect, the same standard of proof applies at the intermediate stage of the trial, namely at the close of the prosecution case[17] which required maximum evaluation and degree of prove beyond reasonable doubt.
            In conclusion, prior to amendment of CPC in 1997, there have been debates and conflicts in determining the test whether maximum evaluation or minimum evaluation should be used and also conflict upon degree of proof needed to establish prima facie case. It must be cognisant that burden of proof lies on prosecution to proof prima facie case, and failure to do so, accused will be acquitted. Apart from that, it can be concluded that generally there are three parts of development of prima facie case which is before the case of Haw Tua Tau v PP, during the case of Haw Tua Taw v pp, and after the case of Haw Tua Tau v PP. On the first part, it was held in few important cases like in the case of PP v Chin Yoke, the judge applied for maximum evaluation and needed to proof prima facie case beyond reasonable doubt at the closed of prosecution’s case. Strict rules have been held and it was hard for prosecution to put a charge on accused.
Later on 1982, in the case of Haw Tua Tau, the judge had been more lenient in establishing prima facie case whereas prosecution need not proof it beyond reasonable doubt and minimum evaluation applied. However, in latter case, the Court used the rule based on case of PP v Chin Yoke that applies for maximum evaluation and standard proof of beyond reasonable doubt for prima facie to be established except for the case of PP v Tan Boon Keat where in this case, the Court applied for maximum evaluation to the evidences, but prosecution need not prove prima facie case beyond reasonable doubt. Here we can see that most of judges depended on precedent cases in applying maximum evaluation and degree beyond reasonable doubt. Even though there has been few attempts made in regards of prima facie in the case of Haw Tua Tau and Tan Boon Keat, but it was not followed. However, these few attempts were a good start in amending CPC in regard of prima facie later on, which would be discussed later. Also, prior to 1997, it can be concluded that once prima facie case been established beyond reasonable doubt, the accused will be called for defence and need to rebut the prima facie beyond reasonable doubt. Failure to rebut, accused will be convicted and if he chose to remain silent, also will be convicted.


Haw Tua Tau v Public Prosecutor [1981] 2 MLJ 49
A.Ragunathan v PP [1982] 1 MLJ 139
PP v Abdullah bin Ismail [1983] 1 MLJ 417
PP v Chin Yoke [1940] 9 MLJ 47
Wong Ah Mee v PP [1967] 1 MLJ 220
Pavone v PP [1986] 1 MLJ 72
PP v Man bin Abbas [1996] 3 SLR 29
Munusamy v Public Prosecutor [1987] 1 MLJ 492
Tan Boon Kean v Public Prosecutor [1995] 4 CLJ 456
Arulpragasan a/l Sandaraju v Public Prosecutor [1996] 4 CLJ 597
The Law Dictionary | What is prima facie. Retrieved on 9th December 2015, from http://thelawdictionary.org/prima-facie/
Bharath. (2008). Prima facie (Criminal Procedure Code). Retrieved on 9th December 2015, from http://alagendra.blogspot.my/2008/04/prima-faciecriminal-procedure-code.html
Noor Hidayah. (2011). Prima facie. Retrieved on 9th December 2015, from http://chentakurekure.blogspot.my/2011/12/prima-facie.html



[1] [1981] 2 MLJ 49
[2] The Law Dictionary | What is prima facie. Retrieved on 9th December 2015, from http://thelawdictionary.org/prima-facie/
[3] [1982] 1 MLJ 139
[4] [1983] 1 MLJ 417
[5] [1940] 9 MLJ 47
[6] [1971] 2 MLJ 16
[7] In the case of State of West Virginia v Tracy L. Haid, the Court defined ‘inherently incredible’ as more than a contradiction, inconsistency or lack of corroboration.
[8] [1967] 1 MLJ 220
[9] [1986] 1 MLJ 72
[10] [1982] 1 MLJ 139
[11] [1996] 3 SLR 29
[12] Bharath. (2008). Prima facie (Criminal Procedure Code). Retrieved on 9th December 2015, from http://alagendra.blogspot.my/2008/04/prima-faciecriminal-procedure-code.html
[13] [1987] 1 MLJ 492
[14] This case, the judge applied for maximum evaluation and needed prosecution to prove prima facie case beyond reasonable doubt.
[15] [1995] 4 CLJ 456 FC
[16] [1996] 4 CLJ 597
[17] Noor Hidayah. (2011). Prima facie. Retrieved on 9th December 2015, from http://chentakurekure.blogspot.my/2011/12/prima-facie.html

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