PRIMA FACIE IN MALAYSIA

Since Malaysia does not enact the definition of the words “prima facie” in any Act including
Criminal Procedure Code, the judge normally define the “prima facie” according to the
dictionary.

According to law dictionary, Prima facie means of first appearance; on the face of it, based
on a 1st impression. A prima facie case is one in which the evidence in favour of a party is
sufficient to call for an answer from his opponent

In Malaysia, the judge may refer to law dictionary to define the definition of prima facie. For
example, in ARULPRAGASAN A/L SANDARAJU V PUBLIC PROSECUTOR, the judge refers to
dictionary to define it as “at 1st sight” or “on the face of it”. In conclusion, for my
understanding of the word “prima facie”, it should be defined as “at 1st sight” or “on the
face of it”.

The question how to determine the degree of proof required to establish a prima facie case
has been discussed since Malaysia independent. The history of development of the degree
of proof required to establish a prima facie case can be divided into 3 parts. The 1st part is
before the case of HAW TUA TAU V PUBLIC PROSECUTOR. The second part is at the time of
the case of HAW TUA TAU V PUBLIC PROSECUTOR. The 3rd part is after the case of HAW
TUA TAU V PUBLIC PROSECUTOR.

Before the case of Haw Tua Tau, Malaysia court applies the degree of proof as maximum
evaluation to establish a prima facie case at the close of prosecution’s case. However, once
the case of Haw Tua Tau inserted the concept of minimum evaluation to establish a prima
facie at the close of prosecution’s case, Malaysia court was undecided to determine which
degree of proof should be required to establish a prima facie case at the close of
prosecution’s case. In the year of 1997, the case of ARULPRAGASAN A/L SANDARAJU V
PUBLIC PROSECUTOR put a stop to the dispute of the concept of minimum evaluation and
maximum evaluation at the close of prosecution’s case. In this case, the federal court judge
decide the maximum evaluation should be applied and the degree of proof required to
establish a prima facie case should be beyond the reasonable doubt at the close of
prosecution case. After the case of ARULPRAGASAN A/L SANDARAJU V PUBLIC
PROSECUTOR, the degree of proof required to establish a prima facie case is basically
tended to maximum evaluation based the degree of proof reasonable doubt at the close of
prosecution’s case. However, there is some dispute between the standard of proof whether
maximum evaluation at the close of prosecution’s case or beyond reasonable doubt at the
close of prosecution’s case from the year of 1997 until the year of 2010.

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

In the case of MOHD KHIRUDIN BIN YAAKUB V PUBLIC PROSECUTOR, the judge say he
must have regard to the evidence as a whole in this case to find that the learned trial judge
was justified in concluding that there is a prima facie case against the appellant at the end of
the prosecution’s case. The judge agrees the learned judge has given a maximum evaluation
of the evidence before him before he called the appellant to enter his defence.

In the case of LOOI KOW CHAI & ANOR V PUBLIC PROSECUTOR , the judge say that
subjecting the evidence of the prosecution to maximum evaluation to determine if the
defence was to be called did not mean that the prosecution had to prove its case beyong
aresonable doubt at this intermediate stage.

In the case of DEPUTY PUBLIC PROSECUTOR V PETER AK MERUPI @ MANSOR BIN

ABDULLAH , the judge say the court is bound to apply a maximum evaluation of the
prosecution’s evidence to determine whether a prima facie case had been made out against
the accused. Applying maximum evaluation means applying the beyond reasonable doubt
test.

In the case of PUBLIC PROSECUTOR V RAMANATHAN A/L CHELLIAH , the judge agree to
invoke the then s 173(f) of the CPC where the language of “if unrebutted warrants a
conviction” had been found it to it being a “beyond reasonable doubt” standard of proof
after a maximum evaluation of the prosecution evidence. Thus, the judge agrees the correct
standard of proof is undertaking not minimum but a maximum evaluation of the evidence at
the close of the prosecution’s case.

In the case of AHMAD NAJIB BIN ARIS V PUBLIC PROSECUTOR , the High Court had relied on
the maximum evaluation principle in the case of Looi Kow Chai & Anor v Public Prosecutor .

In conclusion, the latest development of degree of proof required to establish prima facie
can be divided into 2 views. 1st view is that the degree of proof at the close of prosecution’s
case is the maximum evaluation which stated in the case of LOOI KOW CHAI & ANOR V
PUBLIC PROSECUTOR. Another view is that the degree of proof at the end of close of
prosecutor’s case is that applying the maximum evaluation means applying the beyond
reasonable doubt test at the close of prosecution’s case.

In the year of 1981, This question has been discussed in the case of Haw Tua Tau v Public
Prosecutor . In Haw Tua Tau case, the judge mentioned that once defence is called but the
accused elects to remain silent and offers no evidence, the judge should do the 2nd time
evaluation on the evidences adduced at the end of the trial before the judge can convict the
accused although the accused elects to remain silent and offers no evidence. In Haw Tua
Tau case, the 1st time evaluation on the evidences was made at the close of prosecution’s
case. In the year of 1997, this question is discussed again in the case of Arulpragasan a/l
Sandaraju v Public Prosecutor. In Arulpragasan a/l sandaraju v Public Prosecutor, the
dissenting judgment mentioned that, the trial is accorded to natural justice principle, the
judge cannot make maximum evaluation at the close of prosecution’s case and convict him
if the accused remain silent and offers no evidence in the middle of the case. It means the
accused should given right to be heard to bring to his defence before the judge in order the
trial can be completed. After that, the judge can make beyond reasonable test at the end of
trial and convict if the accused is unable to offers evidence to rebut it. However, it is
dissenting judgment and not majority judgment to support the view in Arulpragasan a/l
Sandaraju v Public Prosecutor.
In the year of 2003, the cases LOOI KOW CHAI & ANOR V PUBLIC PROSECUTOR , the judge
must make up his mind that whether the judge prepare to convict the accused after the
judge decide to call upon the accused to enter the accused’s defence and the accused elects
to remain silent. If the answer is in the negative then no prima facie cases has been made
out and the accused would be entitled to acquittal although the accused elects silent and
offer no evicence.

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

In the case of PUBLIC PROSECUTOR V KANDIAH A/L SUBRAMANIAM, the judge mentioned
that it is a well established principle of Malaysian criminal law that the general burden of
proof lies throughout the trial on the prosecution to prove beyond reasonable doubt the
guilt of the accused for the offence for which he is charged. There is no similar burden
placed on the accused to prove his innocence. He is presumed innocent until proven guilty.
To earn an acquittal his duty is merely to cast a reasonable doubt on the prosecution’s case.
In the other words, the judge cannot convict the accused although the accused elect silent
and offer no rebutted evidence if the accused successfully raise reasonable doubt at the
close of prosecution case.

In the case of LEE KWAN WHO V PUBLIC PROSECUTOR the judge say the expression law in
art 5(1) of the Constitution included written law and the common law of England, ie, the
rule of law and all its integral components and in both its procedural and substantive
dimensions. Thus, it is settled law that the rule of law has both procedural and substantive
dimensions. It is also clear from the authorities that it is a fundamental right guaranteed by
art 5(1) that a person’s life or personal liberty may not be deprived save in accordance with
state action that is fair both in point of procedure and substance. When this principle is
applied to a criminal case it means that the accused has a constitutionally guaranteed right
to receive fair trial, which includes his right to make a submission of no case at the close of
the prosecution’s case and that he cannot waive this right or be deprived of it. Thus, at the
close of the prosecution case, a trial court must invite submissions from the accused and it
was then open to the accused to elect to either make a submission or not to, but the court
could not deny him the opportunity to make a submission of no case to answer.

In conclusion, the latest outcome of discussion for this question in Malaysia case is the judge
should apply the maximum evaluation on the evidence at the close of prosecution and make
sure there is no reasonable doubt raise at the close of prosecution before the judge can
convict the accused if the accused elect silent and offer no evidence after defence is called.

the court has determined that current legislative amendment above section 173 (f) CPC on
prima facie standard of proof at the close of the prosecution’s case does not have
retrospective effect. The case of Arulpragasan a/l Sandaraju v PP is landmark case for this
principle. In the case OF PUBLIC PROSECUTOR V PASUPATHY S/O KANASABY [2001] 2 MLJ
143, per Mokhtar Sidin JCA affirmed this principle in the case of Arulparagasan a/s
Sandaraju v PP