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    Written Notes Topic 4

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    1) Malaysian law has gone through different interpretations of what constitutes a prima facie case. It has varied between requiring minimum evaluation of evidence and maximum evaluation where prosecution evidence must prove each element beyond reasonable doubt. 2) The current position under the 2007 amendments is that a prima facie case requires maximum evaluation, where prosecution evidence if unrebutted must prove each element of the offence beyond reasonable doubt. 3) Some argue this maximum evaluation standard infringes on an accused's right to silence. However, courts have held that the right to silence is not infringed, as an accused still has options to respond to the charge without testifying.

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    Written Notes Topic 4

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    1) Malaysian law has gone through different interpretations of what constitutes a prima facie case. It has varied between requiring minimum evaluation of evidence and maximum evaluation where prosecution evidence must prove each element beyond reasonable doubt. 2) The current position under the 2007 amendments is that a prima facie case requires maximum evaluation, where prosecution evidence if unrebutted must prove each element of the offence beyond reasonable doubt. 3) Some argue this maximum evaluation standard infringes on an accused's right to silence. However, courts have held that the right to silence is not infringed, as an accused still has options to respond to the charge without testifying.

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    1) Malaysian law has gone through different interpretations of what constitutes a prima facie case. It has varied between requiring minimum evaluation of evidence and maximum evaluation where prosecution evidence must prove each element beyond reasonable doubt. 2) The current position under the 2007 amendments is that a prima facie case requires maximum evaluation, where prosecution evidence if unrebutted must prove each element of the offence beyond reasonable doubt. 3) Some argue this maximum evaluation standard infringes on an accused's right to silence. However, courts have held that the right to silence is not infringed, as an accused still has options to respond to the charge without testifying.

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    Download as docx, pdf, or txt
    9 views5 pages

    Written Notes Topic 4

    Uploaded by

    huiminlim0626
    1) Malaysian law has gone through different interpretations of what constitutes a prima facie case. It has varied between requiring minimum evaluation of evidence and maximum evaluation where prosecution evidence must prove each element beyond reasonable doubt. 2) The current position under the 2007 amendments is that a prima facie case requires maximum evaluation, where prosecution evidence if unrebutted must prove each element of the offence beyond reasonable doubt. 3) Some argue this maximum evaluation standard infringes on an accused's right to silence. However, courts have held that the right to silence is not infringed, as an accused still has options to respond to the charge without testifying.

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    of 5

    Law of Evidence – written notes – Emily Law

    Topic 4: Prima Facie

     Common law: prima facie =


    a) Does not equal to BRD
    b) On the face of it, there is some evidence of all the elements of crime which is not
    inherently incredible
    c) Minimum evaluation

    Malaysia’s Position

     A prima facie case what the prosecution must establish at the end of its case before the
    judge decides whether the accused has a case to answer and to enter his defence.
     Note: the term ‘prima facie’ is not found in EA, but in CPC.
    a) S. 173(f) & (h) CPC – summary trials (Magistrate’s Court & Sessions Court)
    b) S. 180 CPC – High Court trials

    Position of Pre-Haw Tua Tau (before 1997)

     S. 173(f) CPC – if upon all evidence… the court finds no case against the accused has
    been made out which if unrebutted would warrant a conviction, the court shall record an
    order of acquittal.
     Note: s. 173 suggests maximum evaluation whereby a case would warrant a conviction if
    unrebutted.
     Note: the term ‘prima facie’ is not used in s. 173.

     Man bin Abas v PP


     Issue: whether the magistrate is correct to acquit the accused who had remained
    silent after his defence was called.
     Held: the action of magistrate is inconsistent. By calling the accused to enter upon
    his defence, the magistrate showed that he believed the prosecution’s evidence yet
    he acquitted the accused. ( = the magistrate should convict the accused)

     PP v Saimin
     Held: The evidence disclosed a prima facie case when it is uncontradicted & if
    believed, it would be sufficient to prove the case against the accused.

     Man bin Abas v PP & PP v Saimin means that to establish a prima facie case, the
    prosecution must adduce strong evidence that if the defence was called but chose to
    remain silent, the accused would be convicted. ( = maximum evaluation of evidence)

    1
    Law of Evidence – written notes – Emily Law

    The Haw Tua Tau Test (1981)

     Held (Privy Council) Lord Diplock:


    o At the end of prosecution’s case, the court had to first act on 2 presumptions:
    a) All evidence of facts is true unless it is inherently incredible that no
    reasonable person will accept it as true;
    b) Nothing can displace the inference reasonably drawn from the facts if
    there is no further explanation.
     What Lord Diplock means:
    o If the accused remains silent when there is some evidence not amount to proof
    BRD against him, he will be acquitted.
    o If the accused remains silent when there was some evidence which amount to
    proof BRD, he will be convicted.
    o However, an accused may still be acquitted at the end of trial even if he did not
    give evidence as the judge is obliged to weigh the evidence to see if prosecution
    had established its case BRD.
     The test in HTT requires minimum evaluation of evidence at the close of prosecution’s
    case (= evidence not inherently incredible).
     Comment: Lord Diplock adopted common law approach of prima facie but not the Act.

    Cases which followed HTT

     The test in HTT is adopted in the case of Ragunathan (FC) & Pavone (HC).

    Cases which did not followed HTT

     Khoo Yi Chiang v PP; Arulpragasan v PP


     A prima facie case was established when it was proved BRD, since only a case
    that was proved BRD could warrant a conviction, if such case remained
    unrebutted. ( = maximum evaluation of evidence)
     The approach in HTT is contrary to the approach in PP v Saimin.
     HTT is not binding as it did not follow our Act.

    Cases which proposed hypothetical BRD

     Munusamy v PP; Tan Boon Kean v PP (FC)


     Held: Justice Mohd Azmi
    o Although he felt bound by the ratio in Khoo Hi Chiang (maximum
    evaluation of evidence), such evidence need not to be conclusive of the
    guilt of accused but should only be on the hypothetical BRD basis.
    o The court is to decide whether the accused is guilty or not only at the
    conclusion of trial.

    2
    Law of Evidence – written notes – Emily Law

     Means:
    o A prima facie case is based on a hypothetical BRD case.
    o If the accused elected to remain silent & called no evidence, the court
    must convict since the hypothetical position has become a reality.

    Tan Boon Kean is overruled by Arulpragasan v PP(1997) in Federal Court:

     Arulpragasan v PP (FC)
     A prima facie case was established when it was proved BRD, since only a case
    that was proved BRD could warrant a conviction, if such case remained
    unrebutted. ( = maximum evaluation of evidence)

    The 1997 Amendments

     S. 173(f) – 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.
     Note: 1997 amendment included the term ‘prima facie’ in s. 173.

     Dalip Bhagwant Singh; Bahruni Ismail


     Held: the new amendments only applicable to offence committed after the
    amendment. Any cases before the amendment will continue under the old law (as
    in Arulpragasan’s case – maximum evaluation)

     PP v Dato Seri Anwar Ibrahim


     Held: as a result of 1997 amendment, a prima facie case in s. 173(f) CPC must
    mean ‘a case which if unrebutted would warrant a conviction.’

     Looi Kow Chai (CA)


     Held (Gopal Sri Ram): under s. 180 CPC, a judge must subject the prosecution
    evidence to a maximum evaluation and ask himself: if I decide to call upon the
    accused to enter his defence & he elects to remain silent, am I prepared to convict
    him on the evidence in prosecution’s case? If the answer is negative, then no
    prima facie case has been made and accused would be acquitted. ( = maximum
    evaluation of evidence)

     Balachandran v PP (FC)(2005)
     Held (Augustine Paul):
    o An accused can be convicted on prima facie evidence but it must have
    reached a standard which support the conviction BRD.
    o Proof BRD involves 2 aspects:
    a) Legal burden on the prosecution to prove its case BRD;

    3
    Law of Evidence – written notes – Emily Law

    b) Evidential burden on the accused to raise a reasonable doubt.


    o These burdens can only be discharged at the end of the whole case & a
    case can only be said to have proved BRD at the conclusion of trial.
    o However, where an accused has not given evidence and remained silent, it
    is not necessary to re-evaluate the evidence. The prima facie evidence
    capable of supporting a conviction BRD will constitute proof BRD.
    o = maximum evaluation of evidence.

    Although Balachandran’s case has finalized the interpretation of prima facie, Justice
    Hishamudin had expressed himself in:

     PP v Sidek
     Held: the true intention of Parliament when enacting 1997 amendments was to
    nullify Arulpragasan principle (maximum evaluation) & revert to the approach in
    HTT (minimum evaluation).

    The 2007 amendments - Current Provision

     S. 173(f)(i) – 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.
     S. 173(f)(ii) – if the court finds that the prosecution has not made out a prima facie case
    against the accused, the court shall record an order of acquittal.
     S. 173(h)(iii) – a prima facie case is made out against the accused where the prosecution
    has adduced credible evidence proving each ingredient of the offence which if
    unrebutted, would warrant a conviction. ( = maximum evaluation)
     Note: same provisions in s. 180 ( High Court Trial)

     Losali v PP; Magendran Mohan v PP


     Held: To ascertain whether a prima facie case has been made out against the
    appellant, the prosecution’s evidence must be evaluated at a maximum level.

     PP v Hanif Basree
     Held: (CJ Zaki) – the term prima facie is defined as ‘where the prosecution
    adduced credible evidence proving each ingredient of the offence which if
    unrebutted would warrant a conviction.’ The sage of the prima facie case will
    continue when the curtain rises again in the near future.

    Whether the principle of maximum evaluation infringes right to silence

     3 ways an accused may answer to his charge:


    a) Own self to be the witness to be cross-examined
    b) Unsworn statement from the dock

    4
    Law of Evidence – written notes – Emily Law

    c) Call others as witnesses


     S. 181 CPC – an accused may elect to give evidence.

     Ahmad Najib Aris v PP(Canny Ong’s case)


     Fact: the accused alleged that the accused’s right of silence has been infringed by
    the principle ‘if unrebutted would warrant a conviction’.
     Held:
    o An accused person has the right to remain silent. It is not at all infringed
    by the principle of “if unrebutted would warrant a conviction”.
    o When the appellant chooses to remain silent, the court is put in a situation
    where it has no other choice but to convict the appellant as the appellant
    had failed to rebut the evidence adduced by prosecution.
    o This is based on the judge’s duty under s. 180 CPC.

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