Development of Prima Facie Case in Malaysia

Since Malaysia does not define the word "prima facie" in any Act including the Criminal
Procedure Code, judges usually define "prima facie" according to the dictionary. According
to the legal dictionary, Prima facie means the first appearance, on his face, based on the
first impression. A prima facie case is a case where evidence in favor of the party is sufficient
to demand an answer from its opponent.

In Malaysia, judges can refer to legal dictionaries to determine prima facie definitions. For
example, in Arulpragasan A/L Sandaraju V Public Prosecutor 1, the judge referred to the
dictionary to define it as "at first sight" or "on his face". In conclusion, the word "prima
facie", it should be defined as "at first glance" or "on its face". The question of how to
determine the level of evidence needed to establish a prima facie case has been discussed
since Malaysia's independence. The developmental history of the level of proof needed to
establish a prima facie case can be divided into 3 parts. The first part is before the Haw Tua
Tau V Public Prosecutor2 case. The second part is in the case of Haw Tua Tau V Public
Prosecutor . The 3rd part is after the Haw Tua Tau V Public Prosecutor.

Before the case of Haw Tua Tau, Malaysia court applies the degree of proof as maximum
evaluation to establish a prima facie case at the close of prosecution’s case. However, once
the case of Haw Tua Tau inserted the concept of minimum evaluation to establish a prima
facie at the close of prosecution’s case, Malaysia court was undecided to determine which
degree of proof should be required to establish a prima facie case at the close of
prosecution’s case.

In the year of 1981, this question has been discussed in the case of Haw Tua Tau v Public
Prosecutor . In Haw Tua Tau case, the judge mentioned that once defence is called but the
accused elects to remain silent and offers no evidence, the judge should do the 2nd time
evaluation on the evidences adduced at the end of the trial before the judge can convict the
1
[1997] 1 MLJ 1
2
[1981] 2 MLJ 49
accused although the accused elects to remain silent and offers no evidence. In Haw Tua
Tau case, the 1st time evaluation on the evidences was made at the close of prosecution’s
case. In the year of 1997, this question is discussed again in the case of Arulpragasan a/l
Sandaraju v Public Prosecutor. In Arulpragasan a/l Sandaraju v Public Prosecutor, the
dissenting judgment mentioned that, the trial is accorded to natural justice principle, the
judge cannot make maximum evaluation at the close of prosecution’s case and convict him
if the accused remain silent and offers no evidence in the middle of the case. It means the
accused should given right to be heard to bring to his defence before the judge in order the
trial can be completed. After that, the judge can make beyond reasonable test at the end of
trial and convict if the accused is unable to offers evidence to rebut it. However, it is
dissenting judgment and not majority judgment to support the view in Arulpragasan a/l
Sandaraju v Public Prosecutor.

In addition the case of Arulpragasan A/L Sandaraju V Public Prosecutor put a stop to the
dispute of the concept of minimum evaluation and maximum evaluation at the close of
prosecution’s case. In this case, the federal court judge decide the maximum evaluation
should be applied and the degree of proof required to establish a prima facie case should be
beyond the reasonable doubt at the close of prosecution case. After the case of
Arulpragasan A/L Sandaraju V Public Prosecutor, the degree of proof required to establish
a prima facie case is basically tended to maximum evaluation based the degree of proof
reasonable doubt at the close of prosecution’s case. However, there is some dispute
between the standard of proof whether maximum evaluation at the close of prosecution’s
case or beyond reasonable doubt at the close of prosecution’s case from the year of 1997
until the year of 2010.

In the case of Chian Swee Ong v Public Prosecutor 3, the judge say to establish a prima facie
case, the judge must have carefully considered the evidence adduced by the prosecution
and the submissions made by the parties to the present case in order to lead the judge to
the only irresistible conclusion. Also in the case of Mohd Khirudin Bin Yaakub V Public

3
[2010] 5 CLJ 1
Prosecutor4, the judge say he must have regard to the evidence as a whole in this case to
find that the learned trial judge was justified in concluding that there is a prima facie case
against the appellant at the end of the prosecution’s case. The judge agrees the learned
judge has given a maximum evaluation of the evidence before him before he called the
appellant to enter his defence.

Furthermore, the case of Looi Kow Chai & Anor V Public Prosecutor 5 , the judge say that
subjecting the evidence of the prosecution to maximum evaluation to determine if the
defence was to be called did not mean that the prosecution had to prove its case beyond a
reasonable doubt at this intermediate stage. In addition the case of Deputy Public
Prosecutor V Peter Ak Merupi @ Mansor Bin Abdullah 6, the judge say the court is bound to
apply a maximum evaluation of the prosecution’s evidence to determine whether a prima
facie case had been made out against the accused. Applying maximum evaluation means
applying the beyond reasonable doubt test.

In the case of Public Prosecutor V Ramanathan A/L Chelliah 7, the judge agree to invoke the
then s 173(f) of the CPC where the language of “if unrebutted warrants a conviction” had
been found it to it being a “beyond reasonable doubt” standard of proof after a maximum
evaluation of the prosecution evidence. Thus, the judge agrees the correct standard of proof
is undertaking not minimum but a maximum evaluation of the evidence at the close of the
prosecution’s case. By the same token, the case of Ahmad Najib Bin Aris V Public
Prosecutor 8, the High Court had relied on the maximum evaluation principle in the case of
Looi Kow Chai & Anor v Public Prosecutor .

In conclusion, the latest development of degree of proof required to establish prima facie
can be divided into 2 views. 1st view is that the degree of proof at the close of prosecution’s

4
[2008] 7 CLJ 504
5
[2003] 2 MLJ 65
6
[2011] 6 MLJ 340
7
[1996] 2 MLJ 538
8
[2007] 2 MLJ
case is the maximum evaluation which stated in the case of Looi Kow Chai & Anor V Public
Prosecutor. Another view is that the degree of proof at the end of close of prosecutor’s case
is that applying the maximum evaluation means applying the beyond reasonable doubt test
at the close of prosecution’s case.

In the year of 2003, the cases Looi Kow Chai & Anor V Public Prosecutor , the judge must
make up his mind that whether the judge prepare to convict the accused after the judge
decide to call upon the accused to enter the accused’s defence and the accused elects to
remain silent. If the answer is in the negative then no prima facie cases has been made out
and the accused would be entitled to acquittal although the accused elects silent and offer
no evicence.

In the year of 2009, there are cases discussed this question. In Ahmad Najib Bin V Public
Prosecutor, the judge say the court must find there is no choice but to convict the accused if
the accused fail to rebut the evidence adduced by the prosecution. The judge further
mentions that an accused person has the right to remain silent, is not at all infringed by the
principle of “if unrebutted would warrant a conviction”. The evidence adduced must be such
that it would warrant a conviction if unrebutted. If the evidence adduced by the accused
which cannot rebut the evidence adduced by prosecution or the accused offer no evidence,
the court can be in the circumstances of no other alternative but to convict the accused.

In the case of Public Prosecutor V Kandiah A/L Subramaniam 9, the judge mentioned that it
is a well established principle of Malaysian criminal law that the general burden of proof lies
throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the
accused for the offence for which he is charged. There is no similar burden placed on the
accused to prove his innocence. He is presumed innocent until proven guilty. To earn an
acquittal his duty is merely to cast a reasonable doubt on the prosecution’s case. In the

9
[2009] 9 MLJ 558
other words, the judge cannot convict the accused although the accused elect silent and
offer no rebutted evidence if the accused successfully raise reasonable doubt at the close of
prosecution case.

As well in the case, of Lee Kwan Who V Public Prosecutor 10 the judge say the expression law
in art 5(1) of the Constitution included written law and the common law of England, the rule
of law and all its integral components and in both its procedural and substantive
dimensions. Thus, it is settled law that the rule of law has both procedural and substantive
dimensions. It is also clear from the authorities that it is a fundamental right guaranteed by
art 5(1) that a person’s life or personal liberty may not be deprived save in accordance with
state action that is fair both in point of procedure and substance. When this principle is
applied to a criminal case it means that the accused has a constitutionally guaranteed right
to receive fair trial, which includes his right to make a submission of no case at the close of
the prosecution’s case and that he cannot waive this right or be deprived of it. Thus, at the
close of the prosecution case, a trial court must invite submissions from the accused and it
was then open to the accused to elect to either make a submission or not to, but the court
could not deny him the opportunity to make a submission of no case to answer. In
conclusion, the latest outcome of discussion for this question in Malaysia case is the judge
should apply the maximum evaluation on the evidence at the close of prosecution and make
sure there is no reasonable doubt raise at the close of prosecution before the judge can
convict the accused if the accused elect silent and offer no evidence after defence is called.

Whether the current legislative amendment above (section 173(f) CPC) on the prima facie
standard of proof at the close of the prosecution’s have retrospective effect?

In this perspective about the current legislative amendment above Section 173(f) on the
prima facie standard of proof at the close of the prosecutions have retrospective effect, the
answer there is no retrospective effect that can be seen. This is because the amendment of
the Criminal Code Procedure (FMS Chap. 6)(CPC) that is on 30 January 1997 by the Criminal
Procedure (Amendment) Act 1997 is basically to provide the element of prima facie at the

10
[2009] 5 CLJ 631
end of the prosecution case. This followed Parliment’s disagreement with the majority view
of the Federal Court in Arulpragasam a/l Sandaraju v PP that the duty of the prosecution
at the end of its case is to prove a case beyond reasonable doubt.

To be more specific, this amendment is to clarify that the duty of the prosecution is to prove
the case is beyond the reasonable doubt. We can see that there is no retrospective effect on
the current legislative amendment on the prima facie standard of proof by distinguishing
this two case that state the same thing. The cases are Bahruni bin Ismail and Dalip
11
Bhagwan Singh v PP , where in this cases the Federal Court held that there is no
retrospective effect towards the amendment. In the case of Bahruni bin Ismail v PP12, the
court state that the amendment can only be enforced to cases that produced to the court
after the date the amendment is enforced, and this amendment is not applicable to cases
filed before the date of amendment that is in the year of 1997.

This method also had been followed in the case of Dalip Bhagwan Singh v PP, where the
test in the case of Arulpragasam will still apply for cases that had been filed before the
amendment or the exact date before 31 January 1997. Apart from that, we also can relate
the issue of retrospective effect towards amendment by viewing to the case of Surandran
13
a/l Rajaretnam v PP , where the issue is the determining of proving whether the
prosecution at the end of his prosecution case have to prove a prima facie case or the
element of beyond reasonable doubt.

So, the court in this case held that, to all intents and purposes, the standard of proof to be
applied in all cases whether before or after Arulpragasan’s decision, must necessarily be
beyond reasonable doubt. The same procedure also applies in the case of Harun bin
Abdullah v PP , where the same issue had been arrised whether a prosecution at the end of
the trial have to proof a prima facie element or the concept of the beyond reasonable

11
[1997] 4 CLJ 645
12
[1997] 2 MLJ. 265
13
[1998] 3 CLJ 184
doubt. The court held that the decision in the case of Arulpragasan had stated clearly that
the standard of proof needed at the end of the prosecution case is beyond reasonable
doubt, similar to the stated amendment to Section 180 of the Criminal Procredure Code to
provide for prima facie standard of proof at the close of the case for the prosecution took
effect only after 31 January 1997 and there is nothing in the amendment to give it
retrospective effect.

This means that the said current legislative amendment above Section 173(f) of the
Criminal Procedure Code on the prima facie standard of proof at the close of the
prosecution’s does not have a retrospective effect because if it given the chance to run
retrospectively, it will make an act cannot evidentially be proved at any time to have been
committed beyond a reasonable doubt at the prosecution’s case, the perpetrator of the act
or omission would not be called for his defence and therefore would not be punishable any
more. But if the act or omission in question not punishable in the way stated above can be
proved by way of a prima facie case at the close of the prosecution case, that means a much
lesser burden of proof, then the said perpetrator will have his defence called. So, it is clear
that at the end of the prosecution case, had to be proved beyond reasonable doubt. the
court has determined that current legislative amendment above section 173 (f) CPC on
prima facie standard of proof at the close of the prosecution’s case does not have
retrospective effect. The case of Arulpragasan a/l Sandaraju v PP is landmark case for this
principle. In the case of Public Prosecutor V Pasupathy S/O Kanasaby 14, per Mokhtar Sidin
JCA affirmed this principle in the case of Arulparagasan a/s Sandaraju v PP.

14
[2001] 2 MLJ 143