Public Prosecutor V Mohd Aszzid Abdullah
Public Prosecutor V Mohd Aszzid Abdullah
Public Prosecutor V Mohd Aszzid Abdullah
The accused (respondent) was alleged to have entered into a house and
F assaulted a lady therein, tied her up and stole some items and was charged
under s 394 of the Penal Code. Nobody witnessed the crime and the victim
was unable to identify the accused. The magistrate acquitted the accused and
this appeal was against his decision. The accused argued that, inter alia, the
magistrate erred in law and fact when he held that here was no credible nexus
G to implicate the offender’s involvement in the case without taking into
account the totality of the prosecution’s evidence; that an identification
parade could not be a safe ground for conviction when the victim positively
asserted that she did not see the accused’s face; the magistrate took into
account irrelevant considerations and did not take into account relevant ones
H and he opined that the confession communicated by the evidence of the
father was not in accordance with criminal law and that he held that the
RM10,000 could have been obtained by any means.
I
Held, dismissing the appeal:
(1) Section 307(6) of the Criminal Procedure Code 1965 (‘CPC’) requires
the appellant to set out ‘the definite particulars of the point of law or
fact’ in the petition of appeal. To succeed in this appeal the prosecution
282 Malayan Law Journal [2008] 1 MLJ
must show at the prima facie stage that they have established (i) all the A
elements of the offence, (ii) proved the ‘fact in issue’ according to law
as set out in s 3 of Evidence Act 1950 (‘EA’) to be read with s 101 EA,
(iii) satisfied all the criteria laid by the Federal Court in Balachandran
v Public Prosecutor [2005] 2 MLJ 301 and set out in the petition of
appeal in what manner the trial court has erred in deciding (i), (ii) and B
(iii). A perusal of the memorandum of appeal did not reflect the
rudimentary requirements which are necessary before the appeal can be
heard. Not complying with the provision of s 307(6) of the CPC in its
clear terms could be a ground to dismiss the appeal. However, the court
was inclined to exercise the discretion and hear the appeal, C
notwithstanding the fact that the strict provision of s 307(6) of the
CPC had not been complied with (see para 4).
(2) The two stages of criminal proceedings are captured in s 173(f ) of the
CPC for trial before the subordinate courts and s 180 for trials before D
the High Court. There was a statutory duty for the prosecution to
establish a prima facie case before the court is obliged to call for the
defence. A prima facie case materially consists of more than two
concepts related to EA. They are issues relating to standard of proof and
weight of evidence or also referred to as probative value or probative E
force (see paras 9–11).
(3) A prima facie case is established where there is sufficient evidence to be
called upon to answer and evidence adduced by the prosecution must
be such that it can only be overthrown upon hearing evidence in F
rebuttal by the defence to the prosecution case. The force of the
evidence adduced 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 that exist did not happen. G
The court must at the close of the prosecution case undertake a positive
evaluation of the credibility and reliability of all the evidence adduced
so as to determine whether the elements of the offences have been
established. The test is: is the evidence sufficient to convict the accused
if he elects to remain silent? If there is any such doubt there can be no H
prima facie case. As the accused can be convicted on the prima facie
evidence, it must reach a standard which is capable of supporting a
conviction beyond reasonable doubt (see para 25).
(4) The prosecution had not established a prima facie case. The prosecution
must established that it was the accused who robbed the victim. I
The victim said that she did not see the robber’s face and could not
identify him. The identification parade was an exercise in futility.
The identity was a vital issue central to the allegation of the prosecution
and failure by the prosecution to adduce sufficient evidence in support
Public Prosecutor v Mohd Aszzid Abdullah
[2008] 1 MLJ (Hamid Sultan JC) 283
A of a fact in issue means that the prosecution failed to discharge the legal
burden and thus failed in its over all contentions (see para 26(i)).
(5) The appellant said there was sufficient corroborative evidence to
implicate the respondent on the ground that the foster father of the
B accused surrendered to the police one unit of hand phone, one SIM
card and cash money amounting to RM1,000. This evidence did not
refer to the respondent applying the maximum evaluation test and did
not have any corroborative value (see p 38) (see para 26(ii)).
C
[Bahasa Malaysia summary
G
Diputuskan, menolak rayuan:
(1) Seksyen 307(6) Kanun Tatacara Jenayah (‘KTJ’) memerlukan perayu
untuk menyediakan ‘butiran yang pasti isu undang-undang atau fakta’
dalam petisyen rayuan. Untuk berjaya dalam rayuan ini pendakwaan
H mestilah menunjukkan pada peringkat prima facie bahawa mereka telah
membuktikan (i) kesemua elemen kesalahan; (ii) telah membuktikan
‘fakta dala isu’ menurut undang-undang seperti mana yang disediakan
dalam s 3 Akta Keterangan 1950(‘AK’) untuk dibaca bersama dengan
s 101 AK; (iii) memenuhi kesemua kriteria yang digariskan oleh
I Mahkamah Persekutuan dalamBalachandran v Public Prosecutor [2005]
2 MLJ 301 dan yang disediakan dalam petisyen rayuan dalam keadaan
yang bagaimana mahkamah bicara terkhilaf dalam memutuskan (i), (ii)
dan (iii). Penelitian memorandum rayuan tidak menggambarkan syarat
asas yang penting sebelum rayuan boleh didengar. Tidak menuruti
284 Malayan Law Journal [2008] 1 MLJ
The respondent in this case has been alleged to have entered into a house and H
assaulted a lady therein and tied her up and stolen the items as set out in the
charge. Nobody witnessed the crime. Further, the victim was not able to
identify the perpetrator of the crime at the time of incident. The charge reads
as follows:
I
Bahawa kamu pada 20 Jun 2005 jam lebih kurang 6.30 pagi, di alamat No 90A,
Lot 2416, Lorong Rubber Batar 14A, di dalam Bandar Kuching, di dalam Negari
Sarawak, di dapati dengan sengaja melakukan samun harta kepunyaan Ch’ng Siew
Ngo, No KP: 220424–13–5038 dan dengan sengaja mencederakan mangsa secara
kekerasan. Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh
Public Prosecutor v Mohd Aszzid Abdullah
[2008] 1 MLJ (Hamid Sultan JC) 287
A dihukum di bawah s 394 Kanun Keseksaan. Oleh yang demikian kamu telah
melakukan satu kesalahan yang boleh dihukum di bawah s 394 Kanun keseksaan.
Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di
bawah s 394 Kanun keseksaan.
B
[3] The petition of appeal reads, inter alia, as follows: The learned
magistrate erred in fact and in law when he; (i) held that there was no credible
nexus to implicate the offender’s (respondent) involvement in this case,
without taking into account the totality of the evidence adduced by the
C prosecution witnesses and that the evidence of all the prosecution’s witnesses
remained unchallenged by the respondent; (ii) asserted that the identification
parade cannot be a safe ground of conviction since the complainant in her
testimony positively asserted that she did not see the face of the criminal and
that mere identification as to race is insufficient, when at all times there were
D other sufficient evidence to implicate and convict the respondent; (iii) he
took into account irrelevant considerations and failed to give due weight to
relevant considerations, in particular, the fact that PW8 had corroborated the
evidence of PW2 as to identification of the respondent; (iv) he considered
that identification by PW2 was by race of the respondent when at all time
E there is no evidence to that effect; (v) he opined that the confession
communicated by the evidence of the father was not in accordance with
criminal law, which is self incriminating when at all time the evidence was not
confession and therefore the father’s evidence should be admitted; (vi) when
he held that the RM10,000 could be obtained through various means
F without taking into account all relevant considerations and the totality of the
evidence which incriminated the respondent with the said sums of money
recovered; in particular the evidences of PW1, PW2, PW5, PW6 and PW7.
[4] Section 307(6) of the Criminal Procedure Code 1965 (‘CPC’) requires
G in a mandatory nature for the appellant to set out ‘the definite particulars of
the point of law or fact” in the petition of appeal. I note in this instance, this
appeal is grounded on the fact that the appellant has established a prima facie
case before the learned magistrate but the learned magistrate has refused to
rule so. To succeed in this appeal the prosecution must show at the prima
H facie stage that they have established; (i) all the elements of the offence; (ii)
proved the ‘fact in issue” according to law as set out in s 3 of Evidence Act
1950 (‘EA 1950’) to be read with s 101 of EA 1950 (iii) satisfied all the
criteria laid by the Federal Court in Balachandran v Public Prosecutor [2005]
2 MLJ 301 and set out in the petition of appeal in what manner the trial
I court has erred in deciding (i) (ii) and (iii) stated above. A perusal of the
memorandum of appeal does not reflect the rudimentary requirements which
are necessary before the appeal can be heard. In Leken @ Delem Ak Gerik (m)
v Public Prosecutor [2007] 3 MLJ 730, I have stated that s 307(6) must be
complied with and I will not dismiss the petition without giving proper
288 Malayan Law Journal [2008] 1 MLJ
[5] The grounds of judgment of the learned magistrate, inter alia, read as G
follows:
The prosecution had called nine witnesses to prove their case against the offender
in this case before me who sit as the Court for Children. On 28 of July, I gave my
brief order which resulted in the acquittal of the offender without his defence being H
called. The learned deputy public prosecutor then appealed against my decision
and I shall now give my full grounds in support of my decision on that day.
Evidence
PW1 was called to testify and she gave evidence that when she returned home the
I
house was ransacked. Her mother was tied up at the toilet. Several bruises were
noticed. The loss was about RM5,000 cash and jewelries. She then lodged a police
report which was marked as exh P1. PW2 is the complainant in this case.
She testified that she saw a man hiding beneath the table. She cannot identify that
man. She felt that man was searching her body after her eyes were covered by towel.
Public Prosecutor v Mohd Aszzid Abdullah
[2008] 1 MLJ (Hamid Sultan JC) 289
A She again confirmed when she was called to ID the suspect that she couldn’t
remember who he was. The only thing that made she can recognized is the size of
that man. PW3 testified that he arrested the offender in this case and police report
was lodged. It was then marked as exh P2. The suspect then was handed over to
the IO of the case. PW4 called and he testified he seized coins from the offender
B amounting to RM8 and lodged a seizure report. The said report was marked as exh
P3. PW5 gave evidence that he went to the suspect’s house. The foster father of the
suspect then surrendered one unit of hand phone, one sim card and cash money
amounting to RM1,000. These exhibits were given to the IO of the case. As a
result, a seizure report was tendered and marked as exh P4. PW6 was the
Investigating Officer in this case. He further testified that he visited the crime
C
scene. He prepared the sketch plan. He instructed ID parade to be conducted.
He confirmed that he received the exhibits from the raiding officer. The coins were
then marked as exh P5. One hand phone brand NOKIA was marked as exh P6.
Finally the cash amounting to RM1,000 was marked as exh P8. PW7 is the
adopted father of the offender. He testified that the money of RM1,000 was given
D by other son and kept by his wife. Only after he knew about this case, the son
withdrew and gave the money to PW 7 for safe keeping. PW8 was the officer who
conducted the ID parade. He testified that the parade was made in accordance
with the rule. The ID parade report was then marked by court as exh P9. PW9 was
the photographer in this case. The photo taken was tendered as exh P10. That is
E all the summary of the evidence adduced by prosecution. …
At the end of prosecution case, I found that prosecution had failed to establish a
prima facie case against the accused based on following evidence: (1) there was no
credible nexus to implicate the accused’s involvement in this case; (2) the
identification parade which was conducted, to my mind, cannot be a safe ground
F of conviction since the complainant in her testimony positively asserted that she
did not see the face of criminal on that fateful day. Mere identification as to the
race is insufficient; (3) the evidence of the father has to be scrutinized with caution
since the alleged confession was communicated not in accordance with criminal
law; furthermore it is self incriminating statement and shall not be admitted; (4)
G the circumstantial evidence of RM10,000 being recovered from the father of the
offender cannot be a safe ground for conviction as the money could be obtained
through various means.
For all the reason that I have stated earlier, I found that on maximum evaluation
of prosecution’s evidence, prosecution had failed to establish a prima facie case
H against the accused in this case. Therefore, I ordered the accused to be discharged
and acquitted.
[6] One of the salient principles of natural justice is that a person should
I not be condemned unheard. In the common law jurisdiction, this principle
has been extended in criminal proceedings to a two stage process. In the 1st
stage, it is for the prosecution to establish that there is a case against the
accused. At this stage the accused need not exercise his right to be heard at
all, pursuant to natural justice. If the prosecution is able to satisfy the court
290 Malayan Law Journal [2008] 1 MLJ
according to the requirement of law then the second stage commences and at A
this stage it is for the accused to be heard and the court then decides whether
he is guilty or not guilty.
[7] In England, this two stage process is meticulously followed in jury trials.
At the first stage, the prosecution, after the opening speech, adduces evidence B
to support the prosecution’s case and at the end closes his case by saying ‘that
is the case for the prosecution’ or words to that effect. The defence may then,
if he so wishes, submit that there is no case to answer (emphasise is mine),
which has some similarities to the concept of prima facie case in Malaysia.
Learned author, Christopher J. Emmins in his book A Practical Approach to C
Criminal Procedure (3rd Ed) at p 113 makes the following observations:
There is no case to answer if the prosecution have failed to adduce evidence on
which a jury, properly directed by the judge in his summing up, could properly
convict: R v Galbraith [1981] 1WLR 1039. If there is literally no evidence relating D
to an essential element of the offence (eg, because a prosecution witness has failed
to give the evidence expected of him), a submission of no case must clearly succeed.
The same applies if the prosecution rely on testimony from a witness who requires
corroboration as a matter of law and there is nothing capable of being
corroboration (eg, the only evidence against the accused is from an unsworn child
and an adult who merely proves that the accused had the opportunity to commit E
the offence). A submission should also succeed if the prosecution rely on
circumstantial evidence to establish an element of the offence, but the inferences
they ask the jury to draw from the evidence cannot reasonably be drawn. Thus, on
a charge of handling stolen good so the judge could rule no case to answer if the
only evidence of guilty knowledge is that the accused bought the goods at an F
under-value, but the difference between the price he paid and the true value was
too small to put a reasonable man on suspicion that the goods might be stolen.
Difficult problems arise where there is some evidence that the accused committed
the offence but, for one reason or another, it seems unconvincing. The basic
principle is that the jury should decide whether witnesses are telling the truth or
G
not, and the judge should not usurp their function by directing them to acquit
merely because he thinks the prosecution witnesses are lying — see R v
Barker(Note) [1977] 65Cr App R 287, affirmed in R v Galbraith. Prior to the
Court of Appeal’s decision in Galbraith, some judges Upheld submissions on the
basis that the evidence was unsafe, ie, possibly or probably perjured. A good
example is R v Beckwith [1981] Crim LIZ 646, where the only prosecution H
evidence on a rape charge was that of the prosecutrix who gave evidence
inconsistent with her out-of-court statements, and who had failed to complain
about the rape until three months after the event when she had an argument with
the accused. The judge held that there was no case to answer, but in the light of
Galbraith it seems that he was wrong to do so — in effect, he was saying he did I
not believe the prosecutrix, but that was a matter for the jury not the judge.
However, even in Galbraith the Court of Appeal affirmed that the quality of the
evidence can sometimes be raised on a submission of no case. Lord Lane CJ said
that where essential prosecution evidence is of a ‘tenuous character’ through
‘inherent weakness, or vagueness or inconsistency with other evidence’ so that
Public Prosecutor v Mohd Aszzid Abdullah
[2008] 1 MLJ (Hamid Sultan JC) 291
A ‘taken at its highest... a jury properly directed could not properly convict upon it,
it is the judge’s duty... to stop the case (R v Galbraith at p 1042). Lord Lane seems
to be drawing a distinction between a case where the prosecution evidence is prima
facie strong but cross-examination suggests that the witnesses may be lying, and
cases where, even in examination-in-chief, the witnesses are manifestly confused or
B unreliable (eg, because they have forgotten or did not have the chance to observe
properly what occurred). The former type of case should be left to the jury, but in
the latter situation the judge can properly uphold a submission of no case.
Lord Lane’s reference to evidence which is of a ‘tenuous character’ through
‘inherent weakness’ is particularly apt to describe some kinds of identification
evidence. The special rules governing submissions of no case in trials turning upon
C
identification evidence are set out below.
The procedure for a submission of no case is that the jury are asked to leave court.
This is so that counsel and the judge can comment freely upon the quality and
significance of the evidence without the risk of the jury being influenced by what
D is said. Once the jury have gone, defence counsel makes his submission, and
prosecuting counsel is given an opportunity to reply. The judge then announces his
decision, and the jury are brought back into court. If the judge has decided that
there is no case to answer on all counts, he explains briefly to the jury the decision
he has reached. He then asks them to appoint a foreman to speak for them, and
the clerk of court takes from the foreman on each count a verdict of not guilty
E
upon the judge’s direction. If the decision was that there is no case to answer on
one or more counts, but there is a case to answer on other counts, the judge tells
the jury that at the end of the trial he will be directing them to return a verdict of
not guilty on the counts in respect of which there is no case, and so, for the
remainder of the trial, they should ignore those counts. However, on the remaining
F counts, the case will proceed as normal. If the submission failed on all counts, the
jury are told nothing of what went on in their absence.
...
Assuming there is a prosecution case to answer, the next stage of the trial is for the
G defence to present their case. Since it is for the prosecution to prove each element
of the offence charged beyond reasonable doubt, the defence are under no
obligation to adduce any evidence whatsoever. Defence counsel can, without
calling evidence of his own, submit to the jury in a closing speech that the accused
should be acquitted as the prosecution evidence fails to establish their case to the
H requisite standard of proof. Such a strategy may be right when the prosecution’s
case is weak, but in general there are obvious dangers in the jury only hearing
evidence favouring the prosecution. It is therefore unusual for the defence not to
call evidence.
I [8] In the above passage, the learned author does not use the term ‘credible
evidence’ or ‘maximum’ or ‘minimum’ evaluation. Further, a quick perusal of
the standard text books written by well known authors will show that, in
respect of the above two stages I have mentioned, no such terms are
mentioned relating to criminal procedure or evidence in England. Similarly, I
292 Malayan Law Journal [2008] 1 MLJ
am not able to find such terminologies by Indian authors, as the law, practice A
and procedure relating to Criminal Procedure and Evidence have much
similarity.
For the guidance of the courts below, we summarise as follows the steps that should
be taken by a trial court at the close of the prosecution’s case:
(i) the close of the prosecution’s case, subject the evidence led by the H
prosecution in its totality to a maximum evaluation. Carefully
scrutinise the credibility of each of the prosecution’s witnesses.
Take into account all reasonable inferences that may be drawn from
that evidence. If the evidence admits of two or more inferences, then
draw the inference that is most favourable to the accused; I
(ii) ask yourself the question: If I now call upon the accused to make his
defence and he elects to remain silent am I prepared to convict him
on the evidence now before me? If the answer to that question is ‘Yes’,
then a prima facie case has been made out and the defence should be
Public Prosecutor v Mohd Aszzid Abdullah
[2008] 1 MLJ (Hamid Sultan JC) 293
A called. If the answer is ‘No’ then, a prima facie case has not been made
out and the accused should be acquitted;
(iii) after the defence is called, the accused elects to remain silent, then
convict;
B (iv) after defence is called, the accused elects to give evidence, then go
through the steps set out in Mat v Public Prosecutor [1963] MLJ 263.
[10] As the crux of the issue related to this appeal materially depends on the
C question of prima facie case, in my view to appreciate and understand this
concept in the right perspective, it is essential to read the relevant provisions
of the CPC with EA 1950. In almost all the cases which dealt with the issue
relating to prima facie case, the courts did not deal with the EA 1950 and in
my view much confusion has been caused, before the decision of the Federal
D Court in Balachandran.
[11] A prima facie case materially consists of more than two concepts
related to EA 1950. They are issues relating to standard of proof (see ss 101
to 103 EA 1950) and weight of evidence or also referred to as probative value
E or probative force (see s 3 of EA 1950). A prima facie case cannot be equated
to burden of proof alone. Further, a prima facie case cannot be equated to the
concept of maximum evaluation of evidence only. However, to define a prima
facie case, the element relating to the standard of proof and weight of
evidence becomes inextricably interwoven. The phrase maximum evaluation
F or minimum evaluation or credible evidence is not a term of art used in
common law jurisprudence in the law relating to evidence. The nearest
equivalent to this term in the law of evidence will be in my view, weight of
evidence or probative value etc. Further maximum or minimum evaluation or
credible evidence does not relate to standard of proof. Because these
G terminologies, when they first appeared in Malaysian cases, were not
explained within the regime of EA 1950, they may in my view have lead to
much confusion and this is reflected in the submission of the prosecution, as
the prosecution had relied on the following cases namely: (i) Munusamy v
Public Prosecutor [1987] 1 MLJ 492; (ii) Dalip Bhagwan Singh v Public
H Prosecutor [1998] 1 MLJ 1; (iii) Public Prosecutor v Tan Sri Muhammad bin
Muhammad Taib [1999] 2 MLJ 305; (iv)Public Prosecutor v Saare Hama &
Anor [2001] 4 MLJ 480; (v) Looi Kow Chai & Anor v Public Prosecutor [2003]
2 MLJ 65; (vi) Arulpragasan Sandaraju v Public Prosecutor [1997] 1 MLJ 1;
(vii)Hwa Tua Tau v Public Prosecutor [1981] 1 CLJ 123; (viii)Tan Chai Keh
I v Public Prosecutor [1948 – 49] SUPP 105; (ix)Public Prosecutor v Kasmin
Soeb [1974] 1 MLJ 230; (x)Khoo Hi Chiang v Public Prosecutor and Another
appeal [1994] 1 MLJ 265; (xi)Dato’ Mokhtar Hashim & Anor v Public
Prosecutor [1983] 2 MLJ 232; (xii)Public Prosecutor v Krishna Rao a/l
Gurumurthi [2000] 1 MLJ 274; (xiii)Public Prosecutor v Dato’ Seri Anwar
294 Malayan Law Journal [2008] 1 MLJ
Throughout the web of the English criminal law, one golden thread is always to be A
seen, that it is the duty of the prosecution to prove the prisoner’s guilt... No matter
what the charge matter what the or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common law of
England and no attempt to whittle it down can be entertained.
B
[15] The phrase ‘burden of proof ’ has two distinct meanings in the law of
evidence as follows: (a) burden of establishing a case; and (b) burden of
introducing evidence [see s 101 of EA 1950]. For example,
(a) In Public Prosecutor v Yuvaraj, the Privy Council, in relation to burden C
of proof as per statue, distinguished the leading case of Woolmington v
DPP and stated:
[17] In Mancini v DPP (HL) [1942] AC 1, it was held that the accused had A
to discharge the evidential burden relating to a charge of provocation before
the prosecution was put to the legal burden of negativing the defence. In R
v Gill [1963] 2 All ER 688, the English Court of Appeal stated that if a
defendant wishes to raise a particular defence to a charge then he must raise
the defence. Once he has succeeded in doing this then it is for the Crown to B
destroy that defence in such manner as to leave in the jury’s mind no
reasonable doubt that the accused cannot be absolved on the grounds of the
alleged defence. Thus, evidential burden is the burden of adducing sufficient
evidence on any given issue, to justify a favourable finding of fact on that C
issue. Evidential burden shifts from one party to another throughout the
course of the case. However, the legal burden asserting the affirmative
proposition does not shift. Thus, at the stage of prima facie case, the legal
burden on the prosecution asserting the affirmative proposition does not
shift. If the prosecution succeeds in establishing a ‘prima facie’ case then the D
evidential burden immediately shifts to the defence. The test as to who bears
the evidential burden is determined by the fact which party would be likely
to fail in his submission about that particular issue, if no further evidence
were adduced.
E
[18] I must say here that the phrases legal burden and evidential burden
have often been confused. In Jayasena v R [1970] AC 618, Lord Devlin
rejected the phrase ‘evidential burden of proof ’ and said that it is a
contradiction in terms. He stated that ‘evidential burden’ is only the burden F
of adducing evidence. For example, raising a doubt is where there is no duty
to prove, whereas ‘legal burden’ is the burden of proving a case, by convincing
the court to believe in the existence or non existence of a fact.
Notwithstanding Lord Devlin’s rejection, this phrase is often used in
judgments and by leading authors. The EA 1950 read with the relevant G
provision of CPC relating to a prima facie case is more specific in stating on
whom the burden lies compared to the common law, where at times legal
burden in criminal cases and civil cases may shift from the prosecution to the
accused and from plaintiff to the defendant, respectively. In this respect, the
English books and cases should be referred to with caution. H
A It need not reach certainty, but it must carry a high degree of probability.
Proof beyond reasonable doubt does not mean proof beyond the shadow of a
doubt. The law would fail to protect the community of it admitted fanciful
possibilities to deflect the course of justice. If the evidence is so strong against a
man as to leave only a remote possibility in his favour which can be dismissed with
B the sentence ‘of course it is possible, but not in the least probable, ‘the case is
proved beyond reasonable doubt, but nothing short of that will suffice.
[20] In Ferguson v R [1979] 1 WLR 94, the trial court’s direction that you
D must be satisfied beyond reasonable doubt that you feel sure of the
defendant’s guilt was generally upheld as safe and sufficient by the Privy
Council. In R v Ching [1976] 63 Cr App R7, the Court of Appeal on the
issue of standard of proof in criminal case made this comment:
E We point out and emphasize that if judges stopped trying to define that which is
almost impossible to define there would be fewer appeals.
[21] In England, there are certain exceptional cases where the defence bears
the legal burden of proof as opposed to evidential burden. In such a situation,
F
the court in R v Carr-Briant [1943] KB 607 has held that the standard of
proof required by the defence is not higher than the burden which rests upon
a plaintiff or a defendant in civil proceedings.
G [22] The term ‘prima facie case’ in our context is normally referred to the
burden placed on the prosecution at the end of its case, before the judge calls
the accused to enter his defence. A prima facie case is defined by Osborne’s
Concise Law Dictionary as follows:
A case in which there is some evidence in support of the charge or allegation made
H in it, and which will stand unless it is displaced. In a case which is being heard in
court, the party starting, that it upon whom the burden of proof rests, must make
out a prima facie case, or else the other party will be able to submit that there is
no case to answer, and the case will have to be dismissed.
the plaintiff ’s evidence is sufficient to allow his case to go to the jury, and (2) courts A
use ‘prima facie” to mean not only that the plaintiff ’s evidence would reasonably
allow the conclusion the plaintiff seeks, but also that the plaintiff ’s evidence
compels such a conclusion if the defendant produces no evidence to rebut it.
[24] The proposition what amounts to a prima facie case was well
articulated by Augustine Paul J (as he then was) in Public Prosecutor v Dato’ G
Seri Anwar Ibrahim, as early as 1999 at a time where the general view of
judges and sages of law who then took the position that the Amendment to
CPC in 1997 relating to prima facie case has reintroduced the principles
enunciated in Hwa Tua Tau (more in favour of the prosecution) and
overruled the dynamic exposition of law (more in favour of the defence) H
inArulpragasam a/l Sandaraju v Public Prosecutor [1997] 1 MLJ 1 (FC). In my
view, the present test of what amounts to prima facie case is hybrid in nature
as to what was said in Hwa Tua Tau and Arulpragasam, as garnered from the
decision in Dato’ Seri Anwar bin Ibrahim’s case where Augustine Paul J (as he
then was) opined: I
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
Public Prosecutor v Mohd Aszzid Abdullah
[2008] 1 MLJ (Hamid Sultan JC) 301
A 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
B can rule that a prima facie case has been made out in order to call for the defence.
G (ii) The force of the evidence adduced 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 that
exist did not happen [see definition of ‘facts’, ‘facts in issue’ and ‘proved’
H in s 3 of EA 1950 — to be read with ss 101 to 103 of EA 1950].
(iii) A prima facie case is not made out if there is no material evidence which
can be believed in the sense as described earlier, [see definition of
‘disproved’ and ‘not proved’ in s 3 of EA 1950].
I (iv) To make a finding either way, the court must at the close of the
prosecution case, undertake a positive evaluation of the credibility and
reliability of all the evidence adduced so as to determine whether the
elements of the offences have been established.
302 Malayan Law Journal [2008] 1 MLJ
(v) Once a prima facie case is established and the accused elects to remain A
silent, he must be convicted. The test at the close of the prosecution
case would therefore be: Is the evidence sufficient to convict the accused
if he elects to remain silent? This must, as of necessity, require a
consideration of the existence of any reasonable doubt in the case for
the prosecution. If there is any such doubt there can be no prima facie B
case.
(vi) As the accused can be convicted on the prima facie evidence, it must
have reached a standard which is capable of supporting a conviction
beyond reasonable doubt. C
Further, the learned judge of the Federal Court opined that:
As the accused can be convicted on the prima facie evidence it must have reached
a standard which is capable of supporting a conviction beyond reasonable doubt.
However it must be observed that it cannot, at that stage, be properly described as
D
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 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 E
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. However, where the accused remains silent
there will be no necessity to re-evaluate the evidence in order to determine whether
there is a reasonable doubt in the absence of any further evidence for such a F
consideration. The prima facie evidence which was capable of supporting a
conviction beyond reasonable doubt will constitute proof beyond reasonable
doubt.
It follows that the submission of learned counsel that the burden on the
prosecution at the close of its case is to make out a case which is beyond reasonable G
doubt and not on a prima facie basis is contrary to the clear and plain language of
s 180 and s 182A. It cannot therefore be sustained.
[26] Applying the test for a prima facie case propounded in Balachandran,
I am inclined to accept the finding of the learned magistrate that the H
prosecution has not established a prima facie case. My reasons are as follows:
(i) One of the elements of the offence in this case is that the prosecution
must establish that it was the respondent who robbed the victim. From
the facts of the case, the victim says that she did not see the robber’s face I
and cannot identify him. Based on that evidence an identification
Public Prosecutor v Mohd Aszzid Abdullah
[2008] 1 MLJ (Hamid Sultan JC) 303
ILLUSTRATIONS
C
(a) ...;
(b) ...;
(c) ...;
D
(d) ...;
(e) ...;
(f ) ...
E
This section is grounded on the principle of res gestae. It refers to
five categories of relevant facts, which may be given in evidence in
relation to s 5 of EA 1950. They are as follows: (a) facts explaining
or introducing a fact in issue or relevant fact; (b) facts supporting
F or rebutting the inference suggested by a fact in issue or relevant
fact; (c) facts establishing the identity of anything or any person
whose identity is relevant; (d) facts fixing the time or place at
which a fact in issue or relevant fact happened; (e) facts showing
the relation of the parties to the transaction under enquiry. Section
G 9 paves the way to establish the identity of a person or thing by
various ways including by way of identity parade, photographs,
finger prints, photofits, etc. In Dato’ Mokhtar bin Hashim v Public
Prosecutor [1983] 2 MLJ 232, it was stated that there was a
distinction between recognition and identification. Recognition is
H more reliable than mere identification [see Public Prosecutor v Basar
[1965] 1 MLJ 75; Public Prosecutor v Sarjeet Singh [1994] 2 MLJ
290]. Evidence is always allowed to be given of facts, which are
necessary to introduce the main fact or some relevant fact.
However, the facts which are stated in section 9 are weaker and of
I less probative value and may have no meaning if they stood
independently. However, they acquire probative value if connected
with other facts. When the identity of any person is relevant, then
every fact which will be helpful in identifying the person is relevant
under s 9. Identification parades are usually held by police with an
304 Malayan Law Journal [2008] 1 MLJ
[27] In this case, the learned magistrate has rejected the evidence of the
foster father. There is no evidence directly or indirectly to implicate the
respondent. In consequence, it is unsafe to call for the defence. For reasons F
stated above, I dismiss the prosecution’s appeal. I hereby order so.
Appeal dismissed.
G
Reported by Chew Phye Ken