Difference between burden of proof and standard of proof

In the case of Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd, the court explained
there is of course a different between the terms burden of proof and standard of proof. The
former relates to the burden or obligation of proving a fact on the party who exerts the
existence of any fact in issue and wishes the court to believe in its existence: ss 102– 103 of
the Evidence Act 1950 (‘the Act’). The burden of proof of a party never shifts. The latter
refers to ‘the degree of persuasion which the tribunal must feel before it decides that the fact
in issue did happen’ (In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS
intervening) [2008] UKHL 35 – per Lord Hoffmann

In the case of Public Prosecutor v Yuvaraj, the court explained that if that
consequence will be the determination of a civil suit in favour of one party a balance of
probabilities is all that is necessary. It is sufficient that upon the evidence the court considers
that it is more likely than not that the fact exists or does not exist. In criminal proceedings on
the other hand, by an exception to the general rule founded upon considerations of public
policy, if the consequence of a finding that a particular fact is proved will be the conviction of
the defendant the degree of probability must be so high as to exclude any reasonable doubt
that that fact exists.

In the case of Nasruddin bin Daud v Public Prosecutor, the court affirmed the
principles of Public Prosecutor v Yuvaraj, that for the determination of a civil suit in favour
of one party a balance of probabilities is all that is necessary. It is sufficient that upon the
evidence the court considers that it is more likely than not that the fact exists or does not exist.
In criminal proceedings on the other hand, by an exception to the general rule founded upon
considerations of public policy, if the consequence of a finding that a particular fact is proved
will be the conviction of the defendant the degree of probability must be so high as to exclude
any reasonable doubt that that fact exists. The court found that the appellant has failed on a
balance of probabilities to rebut the presumption invoked under s 37(d) of the DDA 1952 and
hence the prosecution has established its case beyond reasonable doubt.

Standard of Proof in Criminal cases

 Beyond Reasonable Doubt

 Prima Facie
 Balance of Probabilities

Prosecution - refers to Burden of Proof notes

Prima facie

1.1 Early Position

 Basically, prior to 1997, there were debates on what degree of prima facie should be
established by prosecution in charging someone under criminal offense.
 Before the case of Haw Tua Tau, Malaysia court applies the degree of proof as maximum
evaluation and beyond reasonable doubt to establish a prima facie case at the close of
prosecution’s case.
 The original version of CPC did not define Prima Facie
 Section 173(f) of CPC (prior to the amendment) – if, upon taking all the evidence, the
court finds that no case against the accused has been made out which if unrequited would
warrant his conviction(beyond reasonable doubt), the court shall record an order of
acquittal.
 The above provision means that after producing evidence to establish prima facie case,
the Court finds no case against accused that would convict him, then the Court shall give
order for acquittal.
 Section 180 of CPC – When the case for the prosecution is concluded, the court, if it
finds that no case against the accused has been made out, which if unrebutted would
warrant his conviction, shall record an order of acquittal or if it does not so find, shall
call on the accused to enter his defence.’
 The above provision states that after the trial proceeding, if accused could not rebut the
material evidences adduced by prosecution, then he would be convicted. However, if
prosecution could not proof the credible evidences, then the accused will be acquitted or
he may be called for defence

In the case of Public Prosecutor v Chin Yoke, the court explained that if the
magistrate is satisfied that, if unrebutted, the evidence led by the prosecution would warrant
the accused’s conviction, then a prima facie case has been made out against him. In such a
case the accused should be called upon to answer the prima facie case make out against him.
If, however, on the other hand, after weighing up such evidence for the prosecution, the
magistrate is satisfied that it would be wholly unsafe to convict upon such evidence standing
alone, then no prima facie case has been made out and the accused should not be called on
for his defence. In other words, the court ruled that when prosecution entitled for prima
facie case, it means that he has evidence that cannot be rebutted by the opposing party. Here
we can see that the Court apply for maximum evaluation in establishing prima facie case as
well as maximum evaluation for defence to rebut it beyond reasonable doubt. However, if
after weighing up such evidence for the prosecution and resulting there is no prima facie
case, the accused would not be called on for his defence and he/she will be acquitted.

In the case of Public Prosecutor v Man Bin Abas, it was held that if proven that
there is a prima facie case in the end of the prosecution case, there will be a call for defence,
and if the accused remain silent, he will be convicted. Therefore, it is important for the
prosecution first to proof the prima facie beyond reasonable doubt in order to put a criminal
charge against accused since the Court applied for maximum evaluation. So here, we can see
that the Court overruled strict rules for establishing prima facie case.

In the case of Public Prosecutor v Saimin, the court explained that it is the duty
prosecution to prove the charge against the accused beyond all reasonable doubt. The court
explained that it is well-settled practice that the onus of proving everything essential to the
establishment of the charge against the accused lies on the prosecution. The evidence must
be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused.
If the learned magistrate was not satisfied with the case of the prosecution it was his duty to
acquit and discharge the accused at the close of the prosecution case. The falsity of the
defence does not relieve the prosecution from proving the prosecution case beyond
reasonable doubt.

This would mean that before the defence could be called, the court had to make a
maximum evaluation of the evidence adduced by the prosecution and that the prosecution
witnesses would have to be subjected to a rigorous test of credibility. Tthe phrase ‘if
unrebutted would warrant his conviction’ would demand an exceptionally concrete reason
before the accused is called to answer the charge. Therefore maximum evaluation and degree
of beyond reasonable doubt needed to establish prima facie case. Therefore, it is essential to
know that at the very beginning, the Court applied for maximum evaluation and very strict
rule in order for prosecution to prove prima facie case beyond reasonable doubt.

The decision of Haw Tua Tau – Minimum evaluation and lower degree of proof

In the case of Haw Tua Tau v Public Prosecutor, the court laid down the principle that
at the conclusion of the prosecution's case what has to be decided remains a question of law
only. As decider of law, the judge must consider whether there is some evidence (not
inherently incredible) which, if he were to accept it as accurate, would establish each
essential element in the alleged offence. If such evidence as respects any of those essential
elements is lacking, then, and then only, is he justified in finding "that no case against the
accused has been made out which if unrebutted would warrant his conviction", within the
meaning of section 188(1). Where he has not so found, he must call upon the accused to
enter upon his defence, and as decider of fact must keep an open mind as to the accuracy of
any of the prosecution's witnesses until the defence has tendered such evidence, if any, by
the accused or other witnesses as it may want to call and counsel on both sides have
addressed to the judge such arguments and comments on the evidence as they may wish to
advance. The court further stated that it was incorrect to equate the phrase “ if unrebutted to
mean” Beyond Reasonable Doubt.

In other words, the court held that section 188 of the Singapore CPC (identically
worded as our Section 173(f) CPC before amendment) only involved a hypothetical question
of law requiring minimal evaluation of the evidence at that stage. Lord Diplock further stated
that the court must act on the presumption that all such evidence of primary facts is true,
unless it is inherently incredible that no reasonable person would accept it as being true, and
there will be nothing to displace those inferences reasonably drawn from the primary facts.
In other words, the Court applied for lower standard of proof that based upon the minimal
evaluation of the prosecution evidence.

However, if the accused remain silent, the Court will consider that defence has failed
to rebut the presumption made by prosecution, and resulting to the accused to be convicted.
This also can be seen in the case of Wong Ah Mee v PP, where the magistrate held that when
the accused remain silent, this will amount to a conviction. Hence, it can be seen that
through the case of Haw Tua Tau, the Court applied for minimal evaluation of proof rather
than beyond reasonable doubt. However, silence as to defence will be considered as
convicted.

Post Haw Tua Tau

In the case of Pavone v Public Prosecutor, Edgar Joseph J noted that the case of A.
Ragunathan v Public Prosecutor bound him in the High Court. According to his lordship, the
sole question at the close of the case of the prosecution is whether or not a prima facie case
has been made out, that is to say, whether there is some evidence which, if believed,
establishes the essential elements of the offence charged. If there is such evidence, then the
defence must be called. However, if the accused elects to remain silent and calls no evidence,
the judge opined that there is nothing illegal if magistrate, upon prima facie evidence being
adduced and then acquit the accused even though the accused elects to remain silent, under
the condition that the judge not satisfied that the charge has been established by the
prosecution beyond reasonable doubt. Here, it shows how important for prosecution to prove
prima facie beyond reasonable doubt.

In the case of Junaidi Bin Abdullah v Public Prosecutor, the court explained that the
principle to be applied at the close of the case for the prosecution in a jury trial as laid down
by the Privy Council in Haw Tua Tau v PP , had been considered by this court in Munusamy
v PP2, at p 496. The unanimous opinion of the Supreme Court in Munusamy was that in so
far as a trial before a single judge was concerned, Haw Tua Tau 1 did not exclude or
disapprove of the application of the long-established prima facie case principle at the close
of the prosecution case, as envisaged in ss 173 (f) and 180 of the Code. There was no
conflict in substance between the principle established in Haw Tua Tau and the principle
consistently followed in this country since 1940 as laid down in PP v Chin Yoke.

In the case of Tan Boon Kean v Public Prosecutor, the court held that the case
required to be established at the end of the prosecution case is ‘prima facie’ and not ‘beyond
reasonable doubt’ even though the court has to carry out a maximum evaluation of the
evidence.

In the case of Arulpragasan a/l Sandaraju v Public Prosecutor, the Federal Court, in
ruling on the appeal of a lorry attendant S. Arulpragasan who was sentenced to death for
drug trafficking, decided that the standard of proof required from the prosecution at the close
of its case, in a non-jury trial in Malaysia was the usual criminal standard of proof, to wit,
the beyond all reasonable doubt standard of proof, which called for a maximum evaluation
of the evidence tendered by the prosecution. On the other hand, Eusoff Chin CJ also held
that if the accused elects to remain silent and calls no evidence, he would have failed to rebut
the evidence adduced by the prosecution and the court must be prepared to convict him.
Thus, it is trite law that the onus is on the prosecution throughout the case in any criminal
trial to prove the charge against the accused beyond reasonable doubt. To this effect, the
same standard of proof applies at the intermediate stage of the trial, namely at the close of
the prosecution case which required maximum evaluation and degree of prove beyond
reasonable doubt.