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Prima Facie

1) Introduction
- In criminal appeal, there are 90% of it will relates to the issue of prima facie.
- Burden and standard of proof includes prima facie.
- Definition of Prima facie
- Prima facie case: Of first appearance; on the face of it. Based on the 1st impression
(literal meaning for prima facie is on the face of it)
- 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.
- Establish prima facie case: given enough evidence to justify hearing other side to give
his defence.
- Sarkar Volumn 1: prima facie is just a grounds for proceeding, it is not the same as
proof, it is not conclusive. (standard definition for prima facie)
- General Definition: Prima Facie: On the face of it, one party has given enough
evidence to justify the other party to answer the allegation against him. Is not the
same as proving and it is not conclusive. It is simply a grounds to proceeds to move
from one stage of trial to another stage. It is also not beyond reasonable doubt.

2) When?
- When does the issue of ‘prima facie’ arise?
- Ans: at the end of the prosecution’s case in a criminal trial.
- The terms refers to what the Prosecution must establish at the end of its case before
the Judge decides on whether the Accused has a case to answer and is called to enter
his defence. (refer to what must the prosecution establish before the judge will order
the accused to enter his defence and answer the charge)
- It is a technical terms used to describe how much evidence must the Prosecution
adduce before the defence can be called. (what must the PP must achieve before
defence be called)
- Once prosecution closed his case, at that point, the judge have to decide have the
prosecution establish a prima facie case. If yes, then will call the Accused to give
defence. If no, then he must acquit and discharge the accused. (usually, the defence
lawyer want it to end at the prima facie stage. So will attack the prosecution’s case so
that the judge concludes that there is no prima facie case.)
- The issue arises at the end of the Prosecution’s case
- Question: what is the correct test to determine if the Accused has a case to answer?
- Answer: When Prosecution achieve prima facie case.

3) Criminal Trial Process


- In this country, prima facie means a case that warrant a conviction if unrebutted-
Beyond Reasonable Doubt

- Prosecution’s case  End of prosecution’s case, judge must decide if there is a prima
facie case.  if yes, then is the time for Defence’s case.  if got beyond reasonable
doubt, then verdict guilty.

 if no prima facie case, then Accused is entitled to an acquittal.


During the stage of Defence’s case, the defence can
a) Offers no evidence (keep silent)
b) Offers evidence by
i) Witness box
ii) From dock
iii) Other witness

4) What is the legal meaning of prima facie?


- Prima Facie: prima facie is just a ground to proceeds (dictionary meaning)

a) Common law
- Not equated to beyond reasonable doubt
- On the face of it there is some evidence of all the elements of the crime which is not
inherently incredible.
- Minimum evaluation ( yes there is evidence but the court has not considered its
credibility and weight) (Common law are saying that the credibility and weight have
to do it at the end of the trial, not during the trial ie during the prima facie stage)

b) Malaysia
- Question: What must the Prosecution establish at the end of its case before the judge
decides on whether the Accused has a case to answer and is called to enter his
defence?
- Answer: A prima facie case
- Question: Where do you find the law?
- Note: the terms is not found in the EA 1950.
- The terms is found in CPC.
- In CPC:
 Summary Trials : s.173 (f) and (h) CPC
 High Court Trials: s.180 CPC
(in exam, if is a problematic question, need to discuss the issue of prima facie is
that the HC trials (s.180) or magistrate court or session court (s.173)

- S.173 & s.180 CPC: meaning of prima facie:


i) Before 1997 (original version of CPC)
ii) 31.1.1997 – 6.9.1997 (2nd version)
iii) Current Provisions (1.9.2007 – present)

i) S.173(f) CPC (before 1997)


- “If upon taking all the evidence… the court finds that no case against the accused has
been made out which if unrebutted would warrant a conviction, the court shall
record an order of acquittal.”
- In original CPC, at the end of Prosecution’s case it is a case that warrant a conviction
must be establish and is unrebutted.
- A case which would warrant a conviction if unrebutted. (maximum evaluation)
- Has the Prosecution establish a case that warrant a conviction unrebutted? If yes,
proceeds with defence. If no, must acquit.
- What is a case of warrant a conviction unrebutted? How much evidence that
prosecution need to convict? Ans: Beyond reasonable doubt.
- If is a case that warrant a conviction unrebutted, then it achieved Beyond Reasonable
Doubt and it is maximum evaluation. (this is different with common law)
- In common law, at the end of the Prosecution’s case is prima facie. Which means that
all evidence of the facts have been proven by evidence which is not inherently
credible.
- So in Malaysia, it is not prima facie. It is a case that warrant a conviction = Beyong
reasonable doubt = maximum evaluation.

 Pre Haw Tua Tau v PP (HTT)


- PP v Chin Yoke
- PP v Man bin Abas
- PP v Saimin
It was held that the burden of proof remained on the prosecution throughout the trial.
The court ruled that if the learned magistrate was not satisfied with the case for the
prosecution, it was his duty to acquit and discharge the accused at the close of the
prosecution and that ‘the falsity of the defence did not relieve the prosecution from
proving the case beyond reasonable doubt’. The court reminded those administering
justice in lower courts that ‘evidence disclosed a prima facie case when it was such
that. If uncontradicted and if believed, it would sufficient to prove the case against the
accused.
- The interpretation from the above cases appeared to be that to establish a prima facie
case, the prosecution must have adduced evidence which was so strong, that if the
defence was in fact called but chose to remain silent, it would result in a conviction.
- Thus, at the close of the case of the prosecution, the questions for the trial judge to
decide were both questions of law and of fact and that the court had to undertake a
maximum evaluation of the evidence.
- Maximum evaluation and must be capable of establishing a case Beyond Reasonable
Doubt ( ie case that warrants a conviction if unrebutted)
- But called the test as prima facie
- (use common law term ‘prima facie’ but did not use the definition of common law
prima facie.)

 Haw Tua Tau test


- Haw Tua Tau v PP (Singapore case)
Test: Prima facie
What do you mean by prima facie?
Ans: Not a case which is capable of satisfying beyond reasonable doubt, not
maximum evaluation, only minimum evaluation.
Singapore CPC similar with our CPC. So when the Privy Council say is minimum
evaluation, our judges support.
Prima Facie: some evidence not inherently incredible of all the elements of the
offence.

- Choo Han Teck, in his article ‘ Haw Tua Tau – The Aftermath (Have We No Case to
Answer)’
‘…with the approach in Haw Tua Tau v PP, if the accused remains silent when there
is some evidence against him (which does not amount to proof beyond reasonable
doubt) he will be acquitted after the court reconsiders the evidence…..With the
approach in Haw Tua Tau v PP, the defence may be called if there is some evidence
(but not enough to prove the prosecution’s case BRD) against the accused.
Nevertheless the accused may still be acquitted at the end of the trail even if he did
not give evidence himself…’

- The test in Haw Tua Tau requires a minimum evaluation of the evidence at the close
of the prosecution’s case to ensure that it is not inherently incredible.

- Lord Diplock
- Ragunathan (1982) FC
Condemn the old interpretation in previous cases. The judge forget the terminology
that used in out CPC. ‘case that warrant a conviction unrebutted’
Wrongly follow the privy council.
However, lower court follow the decision.

- Pavone (1982) HC (Edgar Joseph Jr)


Follow Ragunathan.
Prima facie: is minimum evaluation. Not maximum evaluation.
Edgar Joseph Jr when he was a HC judge, he follow FC by saying that is minimum
evaluation and not maximum evaluation. He referred to HTT.
However, when he was a FC judge, he give leading judgement to declare that HTT
cannot be followed in this country. In this country, it must be maximum evaluation.
(Arulpragasan Sandaraju v PP)

- Did not follow HTT


- Khoo Hi Chiang v PP
- Arulpragasan Sandaraju v PP (7 man bench- Edgar Joseph Jr)
Edgar Joseph J had expressed reservations concerning the decision in Haw Tua Tau v
PP on the grounds that first, the type of trial envisaged by Lord Diplock was a jury
trial and secondly, Lord Diplock’s comments on the issue of prima facie were merely
obiter dicta.
Maximum evaluation

- (both this cases back to the right path)


- Standard at the end of prosecution’s case Beyond Reasonable Doubt
- HTT cannot be used in this country because is contradict with CPC.

 If only hypothetical Beyond reasonable doubt (BRD) (post-HTT)


- Munusamy v PP (Mohd Azmi SCJ)
Justice Mohd Azmi adopted the view that there was no difference between the cases
decided pre-Haw Tua Tau and Haw Tua Tau itself. His Lordship attempted to
reconcile both approaches by saying that in
pre- Haw Tua Tau, a prima facie case is based on a ‘hypothetical BRD case and it
must necessarily follow that if he accused elected to remain silent and called no
evidence, the court must convict since the hypothetical position.
On the other hand, his Lordship made reference to the ‘not inherently incredible’ test,
indicating that Haw Tua Tau may be preferred approach.

- Tan Boon Kean v PP


FC, Justice Mohd Azmi.
“such evidence need not to be conclusive of the guilt of the accused byt should only
be on the hypothetical basis that no further evidence was forthcoming and as such, the
court must keep an open mind on the question of guilt unil the conclusion of the trial.”

- Is maximum evaluation but is not BRD, should be called hypothetical BRD.


- At the end of the prosecution’s case it is only a hypothetical BRD (maximum
evaluation) = prima facie
- Both these cases were being overruled in Arulpragasan a.l Sandaraju v PP
- If no rebuttal is given by the accused has the prosecution established a case which
warrants a conviction?
- It is wrong to call it BRD at this stage.

- A scrutiny of the reasoning of both Justice Mohd Azmi in Tan Boon Kean v PP and
Justice Edgar Joseph Jr in Arulpragasan will reveal that there is no difference in
substance between the two approaches. Both judges had agreed that what the
prosecution had to adduce at the end of its case was evidence that so strong, that in
the event the defence was in fact called but chose to remain silent, he would be
convicted.
- The difference, if any, between the two approaches is that while Justice Edgar Joseph
Jr employed the term ‘beyond reasonable doubt’ to indicate what the prosecution had
to adduce at the end of its case, Justice Mohd Azmi preferred the expression prima
facie.

- Miss Mages say she totally disagree with HTT. She agree with Edgar Joseph position
in Arulpragasan to the extent that is maximum evaluation, it must be a case that
capable of being proven beyond reasonable doubt. But to call it beyond reasonable
doubt at this point, meaning it already convicting the accused, which is wrong. She
agree with Mohd Azmi in Tan Boon Kean and Munusamy where it should be
hypothetical beyond reasonable doubt. Terminology is important.

ii) 31.1.1997 until 6.9.2007 (2nd version)


- Amend s.173 and s.180, replace with the term ‘prima facie’
- 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.
(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)(i) If the Court finds that a prima facie case has been made out against the
accused on an offence other than the offence charged, the Court shall call upon the
accused to enter on his defence.
(ii) If the Court finds that a prima facie case has been made out against the accused on
an offence other than the offence charged which the Court is competent to try and
which in the opinion of the Court it ought to try, the Court shall amend the charge.
- Judges said that the amendment was good but it does not affect any offence that was
committed before the commencement and would not affect any case that is filed
before the commencement date.

- Dalip Bhagwan Singh v PP and Bahruni Ismail v Pendakwa Raya


Judge say not bound to follow the amendment.

- PP v Dato Seri Anwar bin Ibrahim (DSAI)


Augustine Paul: after amendment of 1997, the definition of prima facie is a case that
warrant a conviction if unrebutted. It is still maximum evaluation.
It should be noted that, in the amendment Act, they give the prima facie but did not
give the definition of prima facie.
It is clearly contrary to the intention of the parliament. Intention of parliament is
minimum evaluation. Is HTT.
This is HC decision. COA and FC accepted it.

- Lt Kol Yusof bin Abdul Rahman v Kol Anuar bin Md Amin


Held: the degree of proof required to establish a prima facie case was easiest
demonstrated by asking what the court should do after the defence was called, if the
accused elected to remain silent, called no evidence, and could not come up with any
good reason as to why the earlier conclusion provided by the prosecution was wrong.
Thus on such unqualified and unrebutted evidence, the question is whether the court
will convict on the very same material.

- Looi Kow Chai v PP and Balachandran v PP


Prima facie in this country at close of prosecution’s case, is maximum evaluation. A
case that warrant a conviction if unrebutted, but is not call it as Beyond reasonable
doubt, have to call it as prima facie.

- Looi Kow Chai v PP


Held: at the close of the prosecution case, he must subject the prosecution evidence to
a maximum evaluation and ask himself a question: If I decide to call upon the
accused to enter his defence and he elects to remain silent, am I prepared to convict
him on the totality of the evidence contained in the prosecution case? If the answer is
in negative. Then no prima facie case has been made out and the accused would be
acquittal

- Balachandran v PP
Augustine Paul: even though an accused can be convicted on prima facie evidence, it
must have reached a standard which is capable of supporting a conviction
beyond reasonable doubt, which cannot, at that stage, be properly described as a
case that has been proved beyond reasonable doubt.
Proof beyond reasonable doubt involves two aspects: 1) the legal burden on the
prosecution to prove its case beyond reasonable doubt; and 2) 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.
Thus, a case can only be said to be proved BRD at the conclusion of the trial
upon a consideration of all the evidence adduced.
However, where an accused has not given evidence and remained silent, there is no
necessity to re-evaluate the evidence in order to determine whether there is
reasonable doubt in the absence of any further evidence for such a consideration. The
prima facie evidence capable of supporting a conviction BRD will constitute proof
BRD.

- PP v Mohd Radzi bin Abu Bakar


Summarise the follows steps that should be taken by a trial court at the close of
the prosecution’s case:
1) At the close of the prosecution’s case, subject the evidence led by the prosecution
in its totality to a maximum evaluation.
2) 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 the 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.
3) After the defence is called, the accused elects to remain silent, then convict.
4) After the defence is called, the accused elects to give evidence, then proceed.

 Case law
- Balachandran v PP
Augustine Paul.
At the close of Prosecution’s case = prima facie = maximum evaluation
Evidence capable of sustaining a conviction = evidence capable of proving a case
beyond reasonable doubt but is not call as beyond reasonable doubt.

- Note: PP v Sidek Abdullah


Justice Hishamudidn Yunus. His Lordship was of the view that the true intention of
Parliament, when enacting the 1997 amendments, was to revert to the approach in
Haw Tua Tau v PP, which meant that the judge had to conduct only a minimal
evaluation of the evidence adduced by the prosecution.

iii) Current provisions


- S.173(i)- Procedure in summary trials
- S.180- Procedure after conclusion of case for prosecution
- Today- meaning of prima facie- look at s.173 (i) and (iii).
- S.173(iii): “For the purpose of this sub-paragraph is that prima facie is made of where
the prosecution has adduced credible evidence to prove each ingredient of the offence
(if stop here means is minimum evaluation= HTT= common law) but it follows by
stating the “which if unrebutted or explained would warrant a conviction”
- Thus, in conclusion, is a case that warrant a conviction if unrebutted.
- What is duty of prosecution’s at the end of the case to establish a prima facie case = a
case that warrant a conviction if unrebutted = maximum evaluation= Balakchandran
= not beyond reasonable doubt = prima facie = must capable of establish the case
beyond reasonable doubt.

- Losali v PP
- Magendran Mohan v PP
Following the amendment, the current position of CPC, prima facie go back to what
is decided in Balakchandran and Looi Kow Chai.
Is maximum evaluation
Is a case that warrant a conviction if unrebutted
Is not HTT
The law is clear for now.

- Note: CJ Zaki Azmi in PP v Hanif Basree Abdul Rahman


“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 is unrebutted or unexplained would warrant a
conviction” Criminal Procedure Code, s173(h)(iii) (as inserted by the Criminal
Procedure Code (Amendment) Act 2006, s.21. The saga of ‘the prima facie case’ will
continue when the curtain rises again in the near future.”