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THE PENDULUM THAT SWINGS THE STANDARD OF PROOF AT THE END OF THE PROSECUTION’S CASE IN MALAYSIA*

1 Feb

by Ng Boon Ka**

PENDULUM SWINGS

PENDULUM SWINGS

“Since the landmark decision in Haw Tua Tau, there had been a plethora of differing cases exemplifying the ‘dawn’ and ‘dusk’ in standard of proof at the end of the prosecution’s case. This conflict had eventually dictated the legislative amendment of section 173 (f) Criminal Procedure Code in year 1997 which provided for ‘prima facie’ to be the standard of proof required at the end of the prosecution’s case, hence, negating the effect of Arulpragasan and reviving the minimum evaluation test. Nonetheless, the term ‘prima facie’ was merely a symbolic label as it was open to two tests, namely the maximum and minimum evaluation. However, from the Islamic perspective, the claimant must prove the case beyond any shadows of doubt with the highest standard of proof where maximum certainty is ensured. The pendulum with respect to the meaning of ‘prima facie’ had deplorably swung back to the pre-Haw Tua Tau cases despite the amendments. This is not only a blatant exodus of the legislature’s plain intention, but is also against the public interest that no guilty person should be acquitted without the paramount consideration of our criminal justice system.”

INTRODUCTION:

The neoteric judicial approach taken by the Federal Court’s decision in PP v Mohd Radzi Abu Bakar[i] had indubitably provoked both favourable and inauspicious discourse at the corridors of the courts as well as in the vestibules of academicians. Notwithstanding the legislative amendment made in year 1997, which supposedly had laid down the true letter and spirit of the provision governing the standard of proof at the end of the prosecution’s case, yet there were numerous differing interpretations adopted by our honourable judges. In this regard, two extreme world views were projected. On the one hand, it has been held that the prosecution must prove its case beyond reasonable doubt at the end of the prosecution’s case by crossing the threshold of the ‘maximum evaluation’ in order to call for defence. On the other hand, it has also been decided that the courts must undertake a ‘minimum evaluation’ in determining whether the prosecution had made out a prima facie case against the accused at the end of its case.

This incertitude development of standard of proof required by the court at the end of the prosecution’s case had undoubtedly driven us to determine whether the application of the current section 173 (f) Criminal Procedure Code (CPC) truly reflects the principle enunciated in Haw Tua Tau[ii] in the light of the amendments made in year 1997 and some recent courts’ decisions. Thus, this article shall endeavour to provide us with some perspicacity as to the two conflicting views that have perplexed the mind and blurred the vision of many academicians and legal practitioners in the legal fraternity into a minefield of ambiguities.

THE PRE-HAW TUA TAU APPROACH:

Standard of proof, as defined in Oxford Dictionary of Law[iii], is the degree of proof required for any fact in issue in litigation, which is established by assessing the evidence relevant to it. In other words, it is the size and quantum of the legal burden of proof on a particular issue which need to be discharged. In criminal cases, there is not an iota of doubt that the prosecution must prove its case beyond reasonable doubt at the end of the entire case in order for a conviction to stand.[iv] Howbeit, the bewilderment that constantly crops up as to what standard of proof that is required at the end of the prosecution’s case is still not fully settled yet.

Prior to its amendment, section 173 (f) CPC read as follows:

“If upon taking all the evidence hereinbefore 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.”

One may also look at 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.’’

Gordon-Smith Ag JA in PP v Chin Yoke[v] defined prima facie, by referring to Mozley and Whiteley’s Law Dictionary[vi] as:

A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side.[vii]

In Man bin Abbas[viii], Howes J. seemed to imply that when a prima facie case at the end of the prosecution case was made out, and the defence was called, the magistrate must convict should the accused elect to remain silent.[ix] Given this approach, the court in PP v Chin Yoke[x] held that the prosecution must prove their case beyond reasonable doubt in order to entitle the calling of the defence.[xi] In Ong Kiang Kek v PP[xii], Wee Chong Jin CJ stated that no conviction can be warranted unless at the close of the case for the prosecution, the court is left with no reasonable doubt as to the guilt of the accused. Furthermore, a similar approach was espoused in PP v Saimin[xiii] where Sharma J affirmed that the burden of proof remains on the prosecution throughout the trial. That being the case, the evidence discloses a prima facie case only when it is uncontradicted and if believed, it will be sufficient to prove the case against the accused. 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.[xiv] In other words, the phrase ‘if unrebutted would warrant his conviction’ in both section 173 (f) and section 180 is strongly worded which, given its literal interpretation, would demand an exceptionally concrete reason before the accused is called to answer the charge.

EVIDENCES

EVIDENCES

THE EVOLUTION OF THE POST-HAW TUA TAU APPROACH:

This strict approach which required a maximum evaluation of the evidence as an actual question of fact involving the assessment of the credibility and accuracy of witnesses and evidence 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[xv] 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.[xvi] The court must act on the presumption that all such evidence of primary facts is true, unless it is inherently incredible[xvii] 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.

This minimum evaluation test requires the judge, being the decider of law and not facts, to keep an open mind about the veracity and accuracy of recollection of any individual witness until after all the evidence from both sides has been heard at the close of the defence’s case. With the Haw Tua Tau[xviii] approach, the defence may be called if there is some evidence (but not enough to prove the prosecution’s case beyond reasonable doubt) against the accused.[xix] As such, it is a matter for the prosecution to adduce sufficient evidence, which is not inherently incredible, in order to prove each and every essential elements of the offence charged directly or to enable its existence to be reasonably inferred.[xx]

Nevertheless, the application of this test was not consistently utilized in later cases. In 1987, Mohd Azmi SCJ in Munusamy v PP[xxi] 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[xxii] to suggest that the prima facie case approach enunciated in PP v Chin Yoke[xxiii] was wrong in principle.’’ This 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 unrebutted would warrant a conviction. At the same time, the learned judge, by contrast, held that, ‘‘there must be some credible evidence to prove the essential ingredients in the charge.’’ In this regard, Tan Sri Prof. Ahmad Ibrahim in his article, ‘The Burden at the End of the Prosecution’s Case- Haw Tua Tau Revisited[xxiv], by disagreeing with the decision in Munusamy[xxv], commented that the court should only consider whether the evidence adduced by the prosecution to support the essential elements of the charge was or was not inherently incredible by applying the minimal evaluation test.

Despite the confusion in Munusamy[xxvi], it was followed and confirmed in the case of Junaidi bin Abdullah v PP[xxvii] where Mohd Azmi SCJ held that by calling on the defence, it should be assumed that the trial judge must have been satisfied that the prosecution had established a prima facie case which if unrebutted, would warrant a conviction of the accused. On the same token, the five Supreme Court judges in Khoo Hi Chiang v PP & Anor Appeal[xxviii], unanimously decided that the correct test to be applied at that stage was that of a maximum evaluation of such evidence to determine whether or not the prosecution had established the charge beyond a reasonable doubt. In fact, since Lord Diplock had equated the duty of a court of trial in a non-jury case with that of a judge sitting with a jury, the approach in Haw Tua Tau[xxix] is unsuitable as jury trials had been abolished in Malaysia with effect from 17th February 1995.[xxx]

However, Mohd Azmi FCJ in Tan Boon Kean v PP[xxxi] differed from Khoo Hi Chiang[xxxii] in that his Lordship 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 PP[xxxiii]. 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.’’

When a judge sitting alone decides on both fact and law, Edgar Joseph Jr FCJ in Arulpragasan[xxxiv] said that it would be highly artificial to require a judge to suspend judgment on obvious unreliability of the prosecution’s evidence and confine himself to the hypothetical question of whether there is evidence on which a hypothetical jury might or could convict. Given that the main objective of a submission of ‘no case to answer’ is to protect an accused person against the prosecutor who has failed to make out a case and hopes to repair the deficiencies in his own case by cross-examining the accused and his witnesses, his Lordship enunciated that, ‘‘the greater the burden on the prosecution to establish a case, the greater the protection offered to the accused.’’ Similarly, Eusoff Chin CJ 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.[xxxv]

LEGISLATIVE AMENDMENTS IN YEAR 1997 AND ITS ENSUING AFTERMATH:

On December 18, 1996, the Parliament passed the Criminal Procedure Code (Amendment) Act A979 which provides for prima facie to be the standard of proof required at the end of the prosecution’s case, hence, negating the effect of Arulpragasan[xxxvi] and reviving the minimum evaluation test which was endorsed by Lord Diplock in Haw Tua Tau[xxxvii]. In this regard, Datuk Abang Abu Bakar Mustapha, the former Minister in the Prime Minister’s Department, said that,

‘‘…because cases differed from each other, there should not be any standard definition of the prima facie term. To have a standard meaning would be restrictive to the administration of justice.’’[xxxviii]


THE EXODUS OF THE LEGISLATURE’S INTENTION:

The amendment of section 173 (f)[xxxix] and section 180 was thought to have settled the issue regarding the interpretation of ‘prima facie’. Nonetheless, Clarence Edwin in his article, ‘Beyond Reasonable Doubt-The Golden Thread Weakened?[xl] stated that,

‘‘it will merely be a waste of the court’s time for the accused to enter upon his defence and at the end of his defence decide that the evidence tendered by the prosecution lacks cogency (by this I mean that the evidence is not conclusive as to the accused’s guilt) when in fact this conclusion could have been drawn at the close of the prosecution’s case. It is unthinkable that the accused should adduce evidence incriminating himself in order to mould the prosecution’s already weak case into one that is beyond reasonable doubt…With the advent of the amendments, it appears that the Legislature has perhaps ‘whittled down’ an essential principle of the common law and the golden thread which runs through the web of criminal law may no longer be evident.’’ (emphasis added).

On the same token, VT Singham in PP v Syed Muhamad Faysal bin Syed Ibrahim[xli] stated that,

‘‘The duty of proving the guilt of the accused as framed by the charge is solely and wholly on the prosecution is well settled in law and requires no reminder or repetition. There is no obligation on the accused person to establish his innocence and there is a presumption in law that every person is innocent until proven guilty. It is important to observe that this court will not encourage any sloppy prosecution and that the prosecution must ensure that their tackle was in order. The law is firmly settled that there is no duty on the part of the accused to fill in the gaps in the prosecution case or to assume anything in the conduct of the prosecution unless in a case ‘where a presumption is invoked thereby placing an onus on the accused to prove certain facts’ which is not the situation in the instant case.’’[xlii] (emphasis added).

Departing from the aforesaid amended sections, Augustine Paul J in Public Prosecutor v. Dato’ Seri Anwar bin Ibrahim (No 3)[xliii] , described what a prima facie case is in the following terms:

‘‘A prima facie case arises when the evidence in favour of a party is sufficiently strong for the opposing party to be called on to answer. The evidence adduced must be such that it can be overthrown only by rebutting evidence by the other side. Taken in its totality, the force of the evidence must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. As this exercise cannot be postponed to the end of the trial, a maximum evaluation of the credibility of witnesses must be done at the close of the case for the prosecution before the court can rule that a prima facie case has been made out in order to call for the defence.’’[xliv] (emphasis added).

In PP v Magendran a/l Mohan[xlv], Balia Yusof J described maximum evaluation in the following words,

‘‘…all the evidence adduced has to be scrutinised properly and this should not be just a perfunctory, cursory evaluation or an exercise of skimming over the surface of the evidence only. The prosecution must make out the ingredients of the charge with the evidence adduced. If the evaluation of the evidence results in doubts in the prosecution’s case at this stage of the proceedings itself then it cannot be said that a ‘prima facie’ has been made out. The defence ought not to be called merely to clear or clarify the doubt. The benefit of the doubt, if any, at the end of the prosecution’s case must go to the accused. Section 180 of the Criminal Procedure Code requires the court to ‘consider’ whether the prosecution has made out a ‘prima facie’ case against the accused. This consideration must be the total evaluation of the evidence adduced up to the stage. The degree of evaluation ie whether it should be a ‘maximum’ or ‘minimum’ one is not provided for but that, to my mind, would mean the court has to carefully and attentively consider all the evidence and thus would require a complete and full evaluation of the evidence.’’ (emphasis added).

In the latest apex court’s decision of PP v Mohd Radzi Abu Bakar[xlvi], Gopal Sri Ram JCA sitting in the Federal Court, endorsing Looi Kow Chai & Anor v. Public Prosecutor[xlvii] and Public Prosecutor v. Dato’ Seri Anwar bin Ibrahim (No. 3)[xlviii], held that,

‘‘…after the amendments to section 173(f) and section 180 of the CPC, the statutory test has been altered. What is required of a Subordinate Court and the High Court under the amended sections is to call for the defence when it is satisfied that a prima facie case has been made out at the close of the prosecution case. This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call on the accused to enter upon his or her defence. It involves an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution evidence admits of two or more inferences, one of which is in the accused’s favour, then it is the duty of the court to draw the inference that is favourable to the accused.’’[xlix]

Furthermore, his Lordship held that if the court comes to the conclusion that a prima facie case has not been made out after a maximum evaluation of the evidence adduced by the prosecution at the close of its case, the accused should be acquitted. On the contrary, if the court comes to the conclusion that a prima facie case has been made out using the same maximum evaluation, it must call for the defence. One may find it illuminating to note what approach that the court would adopt when the accused decides not to adduce evidence or state his defence by referring to the judgment below,

‘‘If the accused then elects to remain silent, the court must proceed to convict him. It is not open to the court to then re-assess the evidence and to determine whether the prosecution had established its case beyond a reasonable doubt. The absence of any evidence from the accused that casts a reasonable doubt on the prosecution’s case renders the prima facie case one that is established beyond a reasonable doubt. Put shortly, what the trial court is obliged to do under section 173(f) and 180 of the CPC is to ask itself the question: If the accused elects to remain silent, as he is perfectly entitled to do, am I prepared to convict him on the evidence now before me?[l] If the answer to that question is in the affirmative, then the defence must be called. And if the accused remains silent, he must be convicted. If the answer is in the negative, then the accused must be acquitted.’’ (emphasis added).

THE RESTORATION OF THE LEGISLATURE’S INTENTION:

It is humbly submitted that the preferred view is evidenced in PP v Ong Cheng Heong[li] where Vincent Ng J expressed his view on the amendment and held that the evaluation that had to be made was a maximum evaluation of the evidence but such maximum evaluation was not to be associated with the ‘beyond reasonable doubt’ standard. His Lordship pronounced that,

‘‘the maximum evaluation connotes quantitative rather than qualitative evaluation of the evidence, which focus more on the evidential burden in terms of evidence led rather than the persuasive burden in terms of qualitative degree of proof… It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered and which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected.’’

Thus, it is argued that by referring to the maximum evaluation exercise on a quantitative basis, the evidence should not be subjected to a rigorous test of credibility.

In PP v Krishna Rao Gurumurhti[lii], Kang J stated that his Lordship was not at the liberty to adopt the current approach adopted by the courts which was contrary to what was intended by Parliament. The Parliament’s intention was to endorse a minimum evaluation test and not subject the prosecution’s evidence to a rigorous test of credibility. By subjecting the evidence at the end of prosecution case to a maximum evaluation, the accused would not be given a chance to earn his acquittal at the conclusion of the trial if the court were obliged to decide at the close of prosecution that he was already guilty of the charge beyond reasonable doubt. The court must adhere to the maxim audi alteram partem where no man should be condemned unheard or without having had an opportunity of being heard. It is an indispensable requirement of justice that the party who had to decide shall hear both sides, giving each other an opportunity of hearing what is urged against him.[liii] This was also concluded by Mohamed Azmi FCJ in his dissenting judgement in Arulpragasan[liv] that an accused must be presumed innocent until proven guilty, not after hearing only the prosecution evidence, but at the conclusion of the whole trial when both sides have been heard in accordance with the rules of natural justice. Indeed, Mahadev Shankar JCA in Lt Kol Yusof bin Abdul Rahman v Kol Anuar bin Md Amin & Anor[lv], stated that,

‘‘calling for the defence is not itself a pronouncement of guilt or a conviction but a ground for proceeding with the next stage of the case when it becomes the accused’s obligation to tip the scales of justice back in his favour.’’

Previously, the Magistrate had the power to make preliminary inquiries as to certain cases before being transferred to the High Court. Since this power has been vested in the High Court now, it can be inferred that the High Court should subject the evidence at the end of the prosecution’s case to the ‘preliminary inquiries’ yardstick which is similar to the minimum evaluation test and not the maximum evaluation test. It is submitted that the judge would be able to deliver a well-rounded decision based on the totality of facts and law adduced only after hearing both the prosecution and the defence case. Only in the event that the accused elects to remain silent, the prima facie evidence which was capable of supporting a conviction beyond reasonable doubt would constitute proof beyond reasonable doubt. This is delicately put by Augustine Paul JCA in the Federal Court case of Balachandran v PP [lvi] that,

‘‘…it must be observed that it cannot, at that stage, be properly described as a case that has been proved beyond reasonable doubt. Proof beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt the other is the evidential burden on the accused to raise a reasonable doubt. Both these burdens can only be fully discharged at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by s 182A(1) of the Criminal Procedure Code. That would normally be the position where the accused has given evidence.’’ (emphasis added).

A courageous and creative stand was taken in PP v Sidek Abdullah[lvii] where Hishamudin Yunus J held that the prosecution had established against the accused a prima facie case of the commission of the offence of possession of the specified quantity of cannabis under section 6 Dangerous Drug Act 1952 punishable by section 39A(2) thereof. His Lordship further enunciated that,

‘‘…the Court of Appeal and the Federal Court respectively in Looi Kow Chai and Balachandran ought not to have revived the maximum evaluation principle in Arulpragasan Sandaraju. Further, as was prescribed by section 17A of the Interpretation Acts 1948 and 1967, the Court of Appeal and the Federal Court, in interpreting the words ‘prima facie case’ in section 180 CPC, ought to have adopted a purposive approach thereto.’’[lviii]

If the maximum evaluation similar to a proof beyond reasonable doubt standard is adopted at the end of the prosecution’s case, it may render section 173 (m)[lix] and section 182A CPC nugatory and the amendments a mere eyewash akin to a ‘white elephant’ since both sections expressly and clearly provides for the prosecution to prove its case beyond reasonable doubt at the conclusion of the trial in which the court shall consider all the evidence adduced before it.

Perhaps one should give a thought to the comment made by MPH Rubin J in his article, ‘Standard of Proof Relating to Sufficiency of Evidence at Criminal Trial: Mental Gymnastics Since Haw Tua Tau[lx] in which it was elucidated that,

“The criticism levelled against Haw Tua Tau has the tendency to mix prima facie evidence with ‘beyond a reasonable doubt’ evidence. It is difficult to conceptualise how an accused could possibly rebut a case which is established beyond reasonable doubt. Can something which is established beyond reasonable doubt be negatived by some modicum of doubts? If section 189 (Singapore CPC) were to be given a construction under which it behoves the trial Court to make up its mind at the halfway stage, would it not conversely impose an almost impossible burden on the accused. A maximum evaluation test would clearly have undesired results.” (emphasis added).

THE ISLAMIC PERSPECTIVE:

This article would not be fully comprehensive without incorporating some discussion from the Islamic perspective. In Islamic criminal law, particularly those in relation to hudud offences, the claimant must prove his or her case beyond any shubhah or shadows of doubt (yaqin). This is predominantly due to its nature of offence and the severe punishment prescribed where no clemency is allowed as it involves the right of the Almighty, Allah S.W.T. In this context, the burden of proof lies on the party claiming or accusing and this burden can only be discharged with the highest standard of proof where shak (state of doubt based on probabilities bordering between ‘proved’ and ‘not proved’) and wham (state of doubt or fancy which leans closer to error) are totally rejected. This is based on the well-known hadith of the Prophet S.A.W. which states to the effect, ‘‘Set aside hudud whenever doubt arises’’.[lxi] In other words, the claimant must prove the case with the utmost certainty as certainty cannot be eliminated except by another certainty.[lxii]

A BALANCING ACT ON A TIGHT ROPE:

One may agree that our whole criminal jurisprudence including the Islamic law is based on the presumption of innocence. In Khoon Chye Hin v Public Prosecutor[lxiii], Thompson CJ quoted Holroyd J’s statement in Sarah v Hobson[lxiv] where it is a maxim in the English law that, ‘it is better that ten guilty men should escape than that one innocent man should suffer.’ Hence, judges are ever mindful that the objective of a criminal justice system is that the guilty should be punished and that utmost precaution is taken to ensure that no innocent person is ever convicted[lxv].

Correspondingly, there is the other saying by Thomas Fuller: ‘The Judge is condemned when the criminal is absolved.’ The acquittal of a guilty person would therefore equally be a miscarriage of justice just as much as the conviction of an innocent. In this regard, I humbly share the same contention of MPH Rubin J where so long as Judges and the criminal bar bear in mind the pronouncements of Viscount Simon in Stirland v. DPP[lxvi] that ‘a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent’, the general public and for that matter, criminal practitioners need not be fearful of the continued application of Haw Tua Tau[lxvii]. It has worked well since 1981 and would no doubt work well with some further refinement, given the thoroughness of those who plead the cause of the accused at the bar.[lxviii]

EVIDENCES

EVIDENCES

CONCLUSION:

The ‘pendulum’ with respect to the meaning of prima facie has unfortunately swung back to the pre-Haw Tua Tau cases despite the 1997 amendments. It appears that the vigorous judicial creativity in its interpretation of the amended sections had resulted in the exodus of the plain intention of the legislature. The ‘beyond reasonable doubt’ standard of proof is a highly demanding evaluation to be set at the end of the prosecution’s case which could result in an acquittal of a wrongdoer or offender. Thus, it may be said that the public interest would not be served with such high standard of proof.

Furthermore, the adoption of the ‘beyond reasonable doubt’ standard of proof at the end of the prosecution’s case is not only a breach of an explicit provision of the CPC, but also a breach involving a principle of general importance in the administration of justice which cannot be cured by section 422 CPC.[lxix]

In a nutshell, while the maximum evaluation test of the prosecution’s evidence favours the accused, it may not be what the Parliament had intended. Indeed, another final apex court’s decision in this respect is desperately required to resolve these labyrinthine complexities of law. It is, therefore, the public’s fervent hope that the constantly swinging pendulum would come to a standstill, to wit, the standard of proof is finally determined. Only then would section 173 (f) and section 180 CPC truly reflects the principle enshrined in Haw Tua Tau[lxx] and the intention of the legislature.


* The writer wishes to thank his beloved father who has relentlessly given invaluable advice and support, Prof. Dr. Abdul Aziz Bari and Mr. Raja Badrol Hisham Bin Raja Mohd Ali who had critically commented on this article.

** Bachelor of Laws (First Class Honours) International Islamic University Malaysia.

[i] [2006] 1 CLJ 457.

[ii] [1981] 2 MLJ 49.

[iii]Oxford University Press, 5th Edition, 2003.

[iv] Miller v Minister of Pensions [1947] 2 All ER 372; Mancini v Public Prosecutions Director [1942] 1 AC 1; Woolmington v Director of Public Prosecutions [1935] AC 462; Public Prosecutor v Yuvaraj [1969] 2 MLJ 89.

[v] [1940] MLJ 47.

[vi] 5th Edition.

[vii] It is also worth to note that this definition was also adopted by the Federal Court in Balachandran v PP [2005] 2 MLJ 301.

[viii] 1 M.C. 160.

[ix] Mimi Kamariah Majid, Criminal Procedure in Malaysia, University of Malaya Press, 3rd Edition, p. 276.

[x] Supra n.5.

[xi] See also Yap Fook Yew & Anor [1949] supp 3 MLJ; Soo Sing & Ors v PP [1951] MLJ 143.

[xii] [1970] 2 MLJ 283, see also Wong Ah Mee v PP [1970] 1 MLJ 98.

[xiii] [1971] 2 MLJ 16.

[xiv] Supra n. 7. See also Tengku Abdul Aziz v PP [1951] MLJ 185; Tan Ah Ting v PP [1974] 2 MLJ 37; Zahari bin Yeop Baai & Anor v PP [1980] 1 MLJ 160; Ha Jong Ru v PP [1980] 2 MLJ 256.

[xv] Supra n. 2.

[xvi] Francis Ng Aik Guan, Criminal Procedure, MLJ, 2000. pp. 243.

[xvii] Evidence which is inherently incredible is defined as evidence not fit for believing, per Peh Swee Chin J in PP v Tan Seow Chuan [1985] 1 MLJ 318.

[xviii] Supra n. 2.

[xix] Choo Han Teck, Haw Tua Tau-The Aftermath (Have We No Case To Answer), [1987] 29 MLR 29.

[xx] A Ragunathan v PP [1982] 1 MLJ 139 and Pavone v PP [1984] 1 MLJ 77.

[xxi] [1987] 1 CLJ 250.

[xxii] Supra n. 2.

[xxiii] Supra n. 5.

[xxiv] [1987] 2 MLJ lxx.

[xxv] Supra n. 21.

[xxvi] Ibid.

[xxvii] [1993] 3 MLJ 217.

[xxviii] [1994] 1 MLJ 265.

[xxix] Supra n. 2.

[xxx] Mariette Peters-Goh, Prima facie: Standard of Proof or Designative Label?, [2002] 1 CLJ i.

[xxxi] [1995] 4 CLJ 456.

[xxxii] Supra n. 28.

[xxxiii] [1997] 1 MLJ 1.

[xxxiv] Ibid.

[xxxv] The burden of proof on the guilt of the accused is on the prosecution throughout the trial and it never shifts. See Woolmington v The Director of Public Prosecutor [1935] A.C. 462.

[xxxvi] Supra n. 33.

[xxxvii] Supra n. 2.

[xxxviii] The Star, Dec. 19, 1996, at p. 10.

[xxxix] Section 173 (f) and section 180 (1) provide that, ‘When the case for the prosecution is concluded, the court shall consider whether the prosecution has made out a prima facie case against the accused.’

[xl] [1998] 1 CLJ i.

[xli] [2004] 6 MLJ 303 at p. 361.

[xlii] See Jones v Carter 1956 Crim LR 275 at p 276; PP v Chia Leong Foo [2000] 6 MLJ 705 at p 733 and Pang Chee Meng v Public Prosecutor [1992] 1 MLJ 137 at p 141.

[xliii] [1999] 2 CLJ 215.

[xliv] See also PP v Magendran a/l Mohan [2005] 6 MLJ 6.

[xlv] Ibid.

[xlvi] Supra n. 1.

[xlvii] [2003] 1 CLJ 734.

[xlviii] Supra n. 43.

[li] [1998] 4 CLJ 209.

[lii] [2000] 1 CLJ 446.

[liii] See Tan Boon Kean v PP [1995] 4 CLJ 456.

[liv] Supra n. 33.

[lv] [1997] 1 MLJ 562.

[lvi] [2005] 2 MLJ 301.

[lvii] [2006] 4 CLJ 314.

[lviii] Section 180 CPC provides to the same effect as Section 173 (f) CPC. In fact, Wahab Patail J in PP v Mohan Singh [1999] 4 CLJ 420 said that, ‘‘the term prima facie is not descriptive of any standard of proof and its effect is a designative label indicating the case proved at the close of the case for the prosecution.’’

[lix] Section 173 (m)(i) and Section 182A (i) provide that, ‘At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution had proved its case beyond reasonable doubt’.

[lx] [1996] 2 CLJ lxiv.

[lxi] Al-Shaukani, Muhammad bin ‘Ali bin Muhammad, Nail Al-Autaar, Mustaffa Al-Babi Al-Halabi, Egypt, 1961, 3rd Edition, Vol. 7, at p.110.

[lxii] Mahmud Saedon A. Othman, An Introduction to Islamic Law of Evidence, The Open Press Kuala Lumpur, 2003.

[lxiii] [1961] 27 MLJ 105 at p. 108.

[lxiv] 1 Lewin 261.

[lxv] Supra n. 60.

[lxvi] [1944] AC 315 at p. 324.

[lxvii] Supra n. 2.

[lxviii] Supra n. 60.

[lxix] Supra n. 9.

[lxx] Supra n. 2.

Copyright reserved by Ng Boon Ka. This article was also published in the IIUM Law Journal, Volume 14 Number 1, 2006.