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Prima Facie Case

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What is prima facie case?

The standard of proof
The position of the law
Recent development in the law

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[1]
[2]
[3]
[4]

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[1] What is a prima facie case?

There is no statutory definition of what is a prima facie case. Oxford Companion of

Law (page 907) gives the definition as:

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A case which is sufficient to call an answer while prima facie evidence which is
sufficient to establish a face in the absence of any evidence to the contrary but
is not conclusive.

AA

Mozley and Whiteleys Law Dictionary, 11th Ed. defines prima facie case as:

AJ

A litigating party is said to have a prima facie case when the evidence in his
favor 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.

IK

KE

Section 173(f) and section 180 of Criminal Procedure Code use the phrase prima facie
case. Prior to the amendment in 1997, it contained the expression if unrebutted
would warrant his conviction.
Section 173(f) reads:

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(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.

AK

(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.

Prior to the amendment, section 173(f) reads as follows:

If upon taking all the evidence herein before referred to the court finds that no
case against the accused has been made out which if unrebutted would warrant
his conviction the court shall record an order of acquittal.

Prior to the amendment of section 173(f) the principles enunciated can be found in the
following cases:

Haw Tua Tau v PP [1981] 2 MLJ 49.

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Ragunathan v PP [1982] 1 MLJ 139.

Munusamy v PP [1987] 1 MLJ 492.

Junaidi Abdullah v PP [1993] 3 MLJ 219.

Tan Boon Kean v PP [1995] 3 MLJ 514.

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AY

After the amendment, the definition of a prima facie case has been discussed in many
decided cases. In PP v Dato Seri Anwar bin Ibrahim (No. 3) [1999] 2 CLJ 215 at pp 274
275, Augustine Paul J made the following observation:

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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 must be
such that, if rebutted, 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.

IK

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AJ

It would appear that the effect of this subsection seeks to codify the decision of the
court in Looi Kow Chai v PP [2003] 1 CLJ 734. The trial court will at the end of the
case for prosecution ask itself the question If I now decide to call upon the accused to
enter his defence and he elects to remain silent, am I prepared to convict him on the
evidence adduced by the prosecution?

IL

[2] The standard of proof

What is the standard of proof required to be discharge by the prosecution at the end of
its case?

AK

Before the Privy Council decision in Haw Tua Tau v PP, supra, the burden upon the
prosecution was to adduce evidence which if rebutted would warrant a conviction. The
effect of Haw Tua Tau was that an acquittal may be had at the end of the prosecution
case where either the fact adduced by the prosecution are inherently incredible or
the fact though not inherently incredible have not established each essential element
of the alleged offence.
When the court finds that the prosecution has made out a prima facie case at the
close of its case it merely mean that the fact are not inherently incredible and there is
some evidence on each essential element of the offence. This suggests the court is
merely required to undertake a minimal evaluation of the evidence the close of the
offence. However the standard of proof has changed to maximum evaluation of

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evidence tendered by prosecution (see Arulpragasan a/l Sandaraju v PP [1997]1 MLJ

1).
A more vigorous test of credibility was to be applied to the prosecution evidence
instead of the lower Haw Tua Tau standard of proof of a mere prima facie test which
called for a minimum evaluation of prosecution evidence.

SI
A

Section 173 (h) CPC makes it clear that the standard of proof on the prosecution at
the close of its case is to make out a prima facie case. Section 173 (m) CPC states that
at the conclusion of the trial prosecution have to prove its case beyond reasonable
doubt.

AL

AY

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 (see
Balachandran v PP [2005] 2 MLJ 301).

[3] The position of the law

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AN

In PP v Mohd. Radzi bin Abu Bakar [2005] 6 MLJ 399, the court viewed Arulpragasans
case as authority for the proposition that the test to be applied under the former
section 173(f) and 180 of CPC is that the prosecution must establish its case beyond a
reasonable doubt before an accused could be called upon to enter his defence. After
the amendment to section 173(f) and 180 of 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.

IL

The judgment and interpretation of prima facie case in Dato Seri Anwar Ibrahims
case, supra, was approved and preferred by Court of Appeal in Looi Kaw Chai & Anor v
Public Prosecutor [2003] 2 MLJ 65 and affirmed in PP v Mohd Radzi bin Abu Bakar,
supra.

AK

The Federal Court in Mohd Radzis case also set out for the guidance of the courts, the
following steps that should be taken by a trial court at the close of the prosecutions
case:
(i)

the close of the prosecutions case, subject the evidence led by the
prosecution in its totality to a maximum evaluation. Carefully scrutinise
the credibility of each of the prosecutions 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;

(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

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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 called.
If the answer is No then, a prima facie case has not been made out and
the accused should be acquitted;
after the defence is called, the accused elects to remain silent, then
convict;

(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.

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(iii)

[4] Recent development in the law

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The Criminal Procedure Code (Amendment) Act 2006 (Act A1274) has, inter-alia,
amended sections 173 and 180 of the Code.
A new sub-section 173 (h) (iii) now reads:

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AN

(iii) for the purpose for subparagraphs(i) and (ii) 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 or
unexplained would warrant a conviction.

AJ

Similarly, a new sub-section 180(4) now reads:

KE

(4) for the purpose of this section, 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 rebutted or unexplained would warrant a
conviction..

IL

IK

These amendments came into effect on 7 September 2007 and cannot apply
retrospectively (PP v. Hanif Basree Abdul Rahman [2008] 4 CLJ 1). The chronological
scenario relating to the interpretation of a prima facie was set out by the Federal
Court in PP v. Hanif Basree Abdul Rahman, supra, where Zaki Azmi PCA (as he then
was) said as follows:

AK

Prior to this amendment, as a result of the decision in Haw Tua Tau, there
had been heated discussion on the term prima facie in relation to burden
proof at the close of the prosecution case. After the amendment, the
discussions on this subject continued culminating in Balachandran v. PP
[2005] 1 CLJ 85 and PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457, both
Federal Court Judgments. Since then, Parliament has introduced the
definition of prima facie. That term is now defined as where the prosecution
has adduced credible evidence proving each ingredient of the offence which if
unrebutted or unexplained would warrant a conviction. The saga of the
prima facie case will continue when the curtain rises again in the near
future. For now, it is not necessary to go into that subsection since it
cannot apply retrospectively to our present case since it affects the

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substantial rights of the accused. There is nothing to indicate any intention

as to its retrospective effect but even if it does, it would run foul of art. 7 of
the Federal Constitution (see Dalip Bhagwan Singh v. Public Prosecutor
[1979] 4 CLJ 645 at pp. 663 to 665) and Public Prosecutor v. Ishak Hj. Shaari
& other appeals [2003] 3 CLJ 843 at pp. 851 and 852). At this stage, I
should not be expressing any views on its interpretation without the benefit
of a full argument.