Appellant – convicted – trafficking in cannabis 1,396.7g – s 39B(1)(a) DDA

Appeal – allowed – conviction quashed – sentence of death set aside

Reaffirmed the decision in Khoo Hi Chiang (1994)Decline to follow Haw Tua Tau (1983), Tan Boon Kean (1995)

Edgar Joseph Jr FCJ speaking for (4:3) said (p 55):“... the duty of the court, at the close of the case for the prosecution, is to ... determine whether or not the prosecution has established the charge against the accused beyond all reasonable doubt”

Arulpragasan a/l Sandaraju v PP

[1997] 1 MLJ 1, FC

IZZAH ZAHIN ALIMAN

1st Stage:- court must be satisfied that each & every ingredient of the offence charged had been proved by the prosecution BRD- meaning: court in calling the OKT to enter on his defence has already made a finding on the guilt of OKT- at the end, if no evidence at rebuttal OKT CONVICTED (on the evidence adduced by PP)

2nd Stage:- Comes after Defence has been called- Defence: rebut the PP evidence @ raise a reasonable doubt as to the PP case- at the end, duty of court to consider the Defence’s evidence in the light of PP evidence – make a finding on the guilt of OKT

IZZAH ZAHIN ALIMAN

IZZAH ZAHIN ALIMAN

Federal Court held:

Prosecution must prove every ingredient of the charge and

At the end of the Prosecution case, the court should evaluate all admissible evidence as adduced as relevant to the charge and decide whether to call upon the accused to enter defence

Thus, the standard of proof was beyond reasonable doubt which called for maximum evaluation of evidence tendered by the Prosecution

NOTE:

The old section 180 CPC was amended in 1997 with effect from January 31, 1997, taken away the phrase “which if unrebutted would warrant his conviction”

The amendment to s 173(f) introduced the ‘’prima facie' standard of proof ‘ to replace the ‘'beyond reasonable doubt' ‘test at the close of the prosecution case to end the various uncertainties on the correct test to apply at the close of the prosecution case

IZZAH ZAHIN ALIMAN

Appellant charged – - theft of 2 chickens- (alt.)dishonestly retaining stolen property- convicted

Appeal – Defence counsel: Mag. misdirected – meaning burden of proof, where it is necessary for OKT to rebut the prosecution case against him – appeal allowed

Mat v Public Prosecutor [1963] MLJ 263

IZZAH ZAHIN ALIMAN

Suffian J (as His Lordship then was) observed:

If you are satisfied BRD as to OKT’s guilt

CONVICT

If you accept or believe the OKT’s explanation

ACQUIT

if you do not accept or believe the OKT’s explanation

And that explanation does not raise in your mind a reasonable doubt as to his guiltCONVICT

But nevertheless it raises in your mind a reasonable doubt as to his guilt

ACQUITIZZAH ZAHIN ALIMAN

Respondent – charged – murder – Noritta SamsuddinAcquitted & dischargedTrial J – PP failed to establish prima facie case

PP appealed – issue: Trial J applied too heavy burden ‘BRD’ on PP at the close for prosecution case which ought to be applied only at the end of the whole case upon evaluating the case for OKT as well

Appeal dismissed

Followed Looi Kow Chai (2003)

PP v Hanif Basree bin Abdul Rahman [2007] 2 MLJ 320

IZZAH ZAHIN ALIMAN

the Court of Appeal accepted in totality the High Court approach to maximum evaluation and formulated 'prima facie' to mean a scrutiny of material evidence on a maximum evaluation yardstick in order to determine if those strands of evidence have satisfied the legal requirements to support a finding of a prima facie case

necessary for court to consider the gaps and inferences that arose from those circumstantial evidences

Trial J had correctly applied - the principle when assessing circumstantial evidence; he had held that there was a likelihood of another person having committed the offence. Thus no prima facie case had been made out at the close of prosecution case - The defence was not called and the accused was acquitted and discharged.

If the prosecution's case is based on circumstantial evidence, the evidence proved must irresistibly point to one and only one conclusion, the guilt of OKT

IZZAH ZAHIN ALIMAN

NOTE

Further amendment 2006/2007- Inserting the definition of PRIMA FACIE in sections 173 (h)(iii) & 180(4) CPC

-Current Standard (at the close of Prosecution case)

MAXIMUM STANDARD ≠ BRD

IZZAH ZAHIN ALIMAN

MINIMUM STANDARD MAXIMUM STANDARD

Presumed all facts are true Credible evidence which stand alone would be so strong to convict the accused should the accused remains silent

Questions of laws onlyEvaluate issues of laws + factsCredibility and veracity to be

evaluated at the end of trialThe Accused may remain silent at the end of the case for Prosecution

Must convict - the accused person says nothing

IZZAH ZAHIN ALIMAN

Standard of Proof

Close of PP's Case

ACCUSED? Conclusion of the Whole Trial

ACCUSED?

Prima Facie(i) Yes

(ii) No

-Entered defence- Acquittal

Beyond Reasonable Doubt

(i) Yes

(ii) No

- Convicted & sentenced (inclusive of accused remaining silent)

- Acquittal

IZZAH ZAHIN ALIMAN

SUMMARY TRIALS HIGH COURT TRIALS

s 173(f)(i) s 180(1)

s 173(f)(ii) s 180(2)

s 173(h)(i) s 180(3)

s 173(m)(i) s 182A(1)

s 173(m)(ii) s 182A(2)

s 173(m)(iii) s 182A(3)

IZZAH ZAHIN ALIMAN