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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