LAW OF EVIDENCE I

STANDARD OF PROOF PART 2:

PRIMA FACIE

A.INTRODUCTION

1. Definition of prima facie: Of first appearance; on the face of it. Based on a first
impression.

2. 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.

Note : Sarkar defines prima facie as : grounds for proceeding, it is not the same as proof, it is
not conclusive.

3. When does the issue of “prima facie” arise?

At the end of the prosecution’s case in a criminal trial.

The term 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.

4. It is a technical term used to describe how much evidence must the Prosecution adduce before
the defence can be called.

The issue arises at the end of the Prosecution’s case.

5.Q. What is the correct test to determine if the Accused has a case to answer at the end of the
prosecution’s case?

• Prima facie

B. MEANING OF PRIMA FACIE IN MALAYSIA

1. At Common Law :
a. Not equated to BRD

b. On the face of it there is some evidence of all the elements of the crime which is not
inherently incredible.

c. Minimum evaluation ( yes there is evidence but the court has not considered its
credibility & weight)
 2. In Malaysia the Prosecution must establish a prima facie case at the end of its case
before the accused is called to enter his defence

3 Note: The term prima facie is not found in the EA1950. The term is found in the
Criminal Procedure Code (CPC).

3. Sections of the CPC on prima facie:

a. S.173(f)&(h) (Summary Trials)
b. S. 180 (High Court Trials)

4. Note the definition of what constitutes a prima facie case in Malaysia has evolved over
the years based on the terms used in sections S.173 (f)&(h) and S. 180 and the
amendments made to these sections.
5. Note S.173 & s.180 and meaning of prima facie has evolved as follows:
i. Before 1997 (original version of CPC)
ii. 31.1.1997 - 6.9.2007(2nd version)
iii . Current provisions ( 7.9.2007-to present)

C. BEFORE 1997 (ORIGINAL VERSION OF CPC)

1. 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.”

2. Case Law :
Pre Haw Tua Tau
(Maximum evaluation)
PUBLIC PROSECUTOR V. CHIN YOKE[1939] 1 LNS 66   
PUBLIC PROSECUTOR V SAIMIN [1971] 2 MLJ 16
PP V MAN BIN ABAS [1939] MC 160
• HAW TUA TAU V PP [1981] 2 MLJ 49 - Haw Tua Tau test
• Not a case which is capable of satisfying BRD, not maximum evaluation, only
minimum evaluation.
Prima Facie: some evidence not inherently incredible of all the elements of the
offence.
 Post Haw Tua Tau
MUNUSAMY V PP [1987]1 MLJ 492
KHOO HI CHIANG V. PUBLIC PROSECUTOR [1994] 2 CLJ 151
TAN BOON KEAN V. PUBLIC PROSECUTOR[1995] 4 CLJ 456   
ARULPRAGASAN SANDARAJU V PP[1996] 4 CLJ 597

D. AMENDED VERSION OF CPC (31. 1. 1997 - 6.9.2007) : [Am. Act A979.] (2ND
VERSION)

1. S.173. Procedure in summary trials.

The following procedure shall be observed by Magistrates in summary trials:

(a) When the accused appears or is brought before the Court a charge containing the
particulars of the offence of which he is accused shall be framed and read and explained
to him, and he shall be asked whether he is guilty of the offence charged or claims to be
tried.

(b) If the accused pleads guilty to the charge, whether as originally framed or as
amended, the plea shall be recorded and he may be convicted on it and the Court shall
pass sentence according to law:

Provided that before a plea of guilty is recorded the Court shall ascertain that the accused
understands the nature and consequences of his plea and intends to admit, without
qualification, the offence alleged against him.

(c) If the accused refuses to plead or does not plead or claims to be tried, the Court shall
proceed to take all such evidence as may be produced in support of the prosecution.

(d) When the Court thinks it necessary it shall obtain from the complainant or otherwise
the names of any persons likely to be acquainted with the facts of the case and to be able
to give evidence for the prosecution, and shall summon to give evidence before itself
such of them as it thinks necessary.

(e) The accused shall be allowed to cross-examine all the witnesses for the prosecution.

(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.

(g) Nothing in paragraph (f) shall be deemed to prevent the Court from discharging the
accused at any previous stage of the case if for reasons to be recorded by the Court it
considers the charge to be groundless.

(h)

(i) If the Court finds that a prima facie case has been made out against the accused on 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.

(i) The charge if amended shall be read to the accused as amended and he shall be again
asked whether he is guilty of the offence in the charge as amended.

(j)

(i) If the accused pleads guilty to the charge as amended, the plea shall be recorded and
he may be convicted on it and the Court shall pass sentence according to law:

Provided that before a plea of guilty is recorded the Court shall ascertain that the accused
understands the nature and consequences of his plea and intends to admit, without
qualification, the offence alleged against him.

(ii) If the accused does not plead guilty to the charge as amended, the accused shall be
called upon to enter on his defence.

(iii) When the accused is called upon to enter on his defence, he may produce his
evidence and shall be allowed to recall and cross-examine any witness present in the
Court or its precincts:

Provided that if the accused elects to be called as a witness, his evidence shall be taken
before that of other witnesses for the defence:

Provided further that any accused person who elects to be called as a witness may be
cross-examined on behalf of any other accused person.
(k) If the accused puts in any written statement the Court shall file it with the record.

(l)

(i) If the accused applies to the Court to issue any process for compelling the attendance
of any witness (whether he has or has not been previously examined in the case) for the
purpose of examination or cross-examination or the production of any document or other
thing, the Court shall issue the process unless it considers that the application should be
refused on the ground that it is made for the purpose of vexation or delay or for defeating
the ends of justice, in which case that ground shall be recorded by it in writing.

(ii) The Court may, before summoning any witness on such application, require that his
reasonable expenses incurred in attending for the purposes of the trial be deposited in
Court.

(m)

(i) At the conclusion of the trial, the Court shall consider all the evidence adduced before
it and shall decide whether the prosecution has proved its case beyond reasonable doubt.

(ii) If the Court finds that the prosecution has proved its case beyond reasonable doubt,
the Court shall find the accused guilty and he may be convicted on it and the Court shall
pass sentence according to law.

(iii) If the Court finds that the prosecution has not proved its case beyond reasonable
doubt, the Court shall record an order of acquittal.

(n) When the proceedings have been instituted upon the complaint of some person upon
oath under section 133 and upon any day fixed for the hearing of the case the
complainant is absent and the offence may lawfully be compounded, the Court may, in its
discretion, notwithstanding anything hereinbefore contained, discharge the accused at any
time before calling upon him to enter upon his defence.

(o) If the accused does not appear at the time and place mentioned in the summons and it
appears to the Court that the summons was duly served a reasonable time before the time
appointed for appearing and no sufficient ground is shown for an adjournment the Court
may either proceed ex parte to hear and determine the complaint or may adjourn the
hearing to a future day.

[Am. Act A979.]

2. S.180.  Procedure after conclusion of case for prosecution.

(1) 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.

(2) 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.

(3) If the Court finds that a prima facie case has been made out against the accused on
the offence charged the Court shall call upon the accused to enter on his defence.

[Sub. Act A979.]

3.CASE LAW

DALIP BHAGWAN SINGH V. PUBLIC PROSECUTOR[1997] 4 CLJ 645  

BAHRUNI ISMAIL V. PENDAKWA RAYA[1997] 3 CLJ 267
PP V DSAI (NO.3)[1999]2 MLJ 1
LOOI KOW CHAI V PP [2003]1 CLJ 734
BALACHANDRAN V PP[2005]2 MLJ 301
PP V MOHD RADZI BUN ABU BAKAR [2006] 1 CLJ 457
PP V SIDEK ABDULLAH [2006]3 MLJ 357

E. CURRENT PROVISIONS OF CPC

After CPC (Amendment) Act 2006 ( 7.9.2007- to present)

1. SECTION 173. Procedure in summary trials.

The following procedure shall be observed by Magistrates in summary trials:
(a) When the accused appears or is brought before the Court a charge containing the
particulars of the offence of which he is accused shall be framed and read and explained
to him, and he shall be asked whether he is guilty of the offence charged or claims to be
tried.
(b) If the accused pleads guilty to the charge, whether as originally framed or as
amended, the plea shall be recorded and he may be convicted on it and the Court shall
pass sentence according to law:
Provided that before a plea of guilty is recorded the Court shall ascertain that the accused
understands the nature and consequences of his plea and intends to admit, without
qualification, the offence alleged against him.
(c) If the accused refuses to plead or does not plead or claims to be tried, the Court shall
proceed to take all such evidence as may be produced in support of the prosecution.
(d) When the Court thinks it necessary it shall obtain from the complainant or otherwise
the names of any persons likely to be acquainted with the facts of the case and to be able
to give evidence for the prosecution, and shall summon to give evidence before itself
such of them as it thinks necessary.
(e) The accused shall be allowed to cross-examine all the witnesses for the prosecution.
(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.
(g) Nothing in paragraph (f) shall be deemed to prevent the Court from discharging the
accused at any previous stage of the case if for reasons to be recorded by the Court it
considers the charge to be groundless.
(h)
(i) If the Court finds that a prima facie case has been made out against the accused on 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.

(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.
(ha) When the Court calls upon the accused to enter on his defence under subparagraph
(h)(i), the Court shall read and explain the three options to the accused which are as
follows:
(i) to give sworn evidence in the witness box;
(ii) to give unsworn statement from the dock;
or
(iii) to remain silent.
(i) The charge if amended shall be read to the accused as amended and he shall be again
asked whether he is guilty of the offence in the charge as amended.
(j)
(i) If the accused pleads guilty to the charge as amended, the plea shall be recorded and
he may be convicted on it and the Court shall pass sentence according to law:
Provided that before a plea of guilty is recorded the Court shall ascertain that the accused
understands the nature and consequences of his plea and intends to admit, without
qualification, the offence alleged against him.
(ii) If the accused does not plead guilty to the charge as amended, the accused shall be
called upon to enter on his defence.
(iii) When the accused is called upon to enter on his defence, he may produce his
evidence and shall be allowed to recall and cross-examine any witness present in the
Court or its precincts:
Provided that if the accused elects to be called as a witness, his evidence shall be taken
before that of other witnesses for the defence:
Provided further that any accused person who elects to be called as a witness may be
cross-examined on behalf of any other accused person.
(k) If the accused puts in any written statement the Court shall file it with the record.
(l)
(i) If the accused applies to the Court to issue any process for compelling the attendance
of any witness (whether he has or has not been previously examined in the case) for the
purpose of examination or cross-examination or the production of any document or other
thing, the Court shall issue the process unless it considers that the application should be
refused on the ground that it is made for the purpose of vexation or delay or for defeating
the ends of justice, in which case that ground shall be recorded by it in writing.
(ii) The Court may, before summoning any witness on such application, require that his
reasonable expenses incurred in attending for the purposes of the trial be deposited in
Court.
(m)
(i) At the conclusion of the trial, the Court shall consider all the evidence adduced before
it and shall decide whether the prosecution has proved its case beyond reasonable doubt.
(ii) If the Court finds that the prosecution has proved its case beyond reasonable doubt,
the Court shall find the accused guilty and he may be convicted on it and the Court shall
pass sentence according to law.
(iii) If the Court finds that the prosecution has not proved its case beyond reasonable
doubt, the Court shall record an order of acquittal.
(n) When the proceedings have been instituted upon the complaint of some person upon
oath under section 133 and upon any day fixed for the hearing of the case the
complainant is absent and the offence may lawfully be compounded, the Court may, in its
discretion, notwithstanding anything hereinbefore contained, discharge the accused at any
time before calling upon him to enter upon his defence.
(o) If the accused does not appear at the time and place mentioned in the summons and it
appears to the Court that the summons was duly served a reasonable time before the time
appointed for appearing and no sufficient ground is shown for an adjournment the Court
may either proceed ex parte to hear and determine the complaint or may adjourn the
hearing to a future day.

2. High Court Trials

SECTION 180. Procedure after conclusion of case for prosecution.
(1) 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.
 (2) 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.
(3) If the Court finds that a prima facie case has been made out against the accused on the
offence charged the Court shall call upon the accused to enter on his defence.
[Sub. Act A979.]
(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 unrebutted or unexplained would warrant a conviction.

3. SECTION 182A Procedure at the conclusion of the trial.

(1) At the conclusion of the trial, the Court shall consider all the evidence adduced before
it and shall decide whether the prosecution has proved its case beyond reasonable doubt.
(2) If the Court finds that the prosecution has proved its case beyond reasonable doubt,
the Court shall find the accused guilty and he may be convicted on it.
(3) If the Court finds that the prosecution has not proved its case beyond reasonable
doubt, the Court shall record an order of acquittal

3. CASE LAW
LOSALI v. PP[2010] 8 CLJ 560
MAGENDRAN MOHAN v. PP[2011] 1 CLJ 805
PP V HANIF BASREE ABDUL RAHMAN [2008] 3 MLJ 161

F. TEXT / READING LIST

1. Hamid Sultan Abu Bakar , Janab’s Key To Criminal Procedure and Evidence (2 nd edn, Janab
2010) Chapter XIX and Chapter XX.
2. Mariette Peters, Law of Evidence in Malaysia (LexisNexis, Malaysia, 2013), Chapter 2.

G. e-LEARNING ACTIVITY

1.Students to read on line article on prima facie:

“Is It Wrong To Be Silent?: Comparative Legal Positions In Malaysia And New Zealand On The
Right To Silence”
Mohd Munzil Bin Muhamad.
[2013] 1 MLJ lx