Chapter 2.4 - Burden & Standard of Proof: Prima Facie Flashcards
PRIMA FACIE
overview
1) Meaning of PF
2) Pre-HTT
3) HTT test
4) Post-HTT & amendments
5) Current position
PRIMA FACIE
Meaning of PF
PP v Ong Cheng Heong:
- PF means “on the face of it” or “at first glance”;
- PF case is a case which is sufficient for an answer;
- PF evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary; but is not conclusive.
POSITION PRE-HAW TUA TAU
Overview
1) Standard of proof
2) PF evidence pre-HTT
3) Calling to enter defence
POSITION PRE-HAW TUA TAU
Standard of proof
1) S.173(f):
“evidence which if unrebutted would warrant a conviction”.
2) Khoo Hi Chiang v PP:
- BRD;
- only evidence BRD was of that nature.
POSITION PRE-HAW TUA TAU
PF evidence pre-HTT
PP v Saimin:
- PF evidence is one which “if uncontradicted & believed would be sufficient to prove the case against the accused”.
POSITION PRE-HAW TUA TAU
calling to enter defence
Man bin Abas v PP:
- By calling the accused to enter the defence, it showed that the Magistrate believed the evidence of the prosecution.
- If the accused remained silent, he should convict the accused.
HAW TUA TAU
Haw Tua Tau test
1) Haw Tua Tau v PP:
- Judge has to keep an open mind on the veracity & accuracy of the recollection of individual witnesses;
- Until after all evidence has been tendered & both sides have been heard.
2) Arulpragasan Sandaraju v PP:
- HTT only requires minimum evaluation of the evidence in P’s case;
- Test is not inherently incredible.
POSITION POST-HAW TUA TAU
Amendments
1) 1997 amendment
2) Cases post-1997 amendment
3) 2006 amendment
POSITION POST-HAW TUA TAU
1997 amendment
- to reinstate the law as stated in HTT, and depart from Khoo Hi Chiang & Arulpragasan.
- clarify that the standard of proof at the close of PP’s case is prima facie standard, not BRD.
POSITION POST-HAW TUA TAU
Case post-1997 amendment
1) PP v Mohd Radzi Abu Bakar
2) Balachandran v PP
3) Looi Kow Xhai v PP
- To establish prima facie case, prosecution must adduce evidence BRD;
- evidence must be sufficient to convict the accused if he remains silent;
- court must undertake a maximum evaluation of the prosecution’s evidence.
POSITION POST-HAW TUA TAU
2006 amendment
Current position
- a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence;
- the evidence, if unrebutted, would warrant a conviction.
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CURRENT POSITION
Overview
1) The law
2) Meaning of PF case
3) Test for PF
4) Meaning of “all evidence”
4) Recent application
CURRENT POSITION
The law
1) S.173(h)(iii) CPC:
2) S.180(4) CPC:
CURRENT POSITION
Meaning of prima facie case
PP v Hanif Basree:
- PF case is whether the prosecution has adduced credible evidence proving each ingredient of the offence;
- which if unrebutted or unexplained would warrant a conviction.
CURRENT POSITION
Test for PF
Magendran Mohan v PP:
- The test is based on maximum evaluation of evidence;
- If the evaluation results on doubts in prosecution case, the a prima facie has not been made out;
- Defence must not be called just to clear the doubts.
CURRENT POSITION
Meaning of “all evidence” at the end of defence case
HC, 2020
PP v Najib Razak:
- issue is whether “all evidence” at the end of defence case is limited to evidence adduced in prima facie findings;
- held: the operative word is “all”, thus all evidence must be considered, not just limited to prima facie findings.
CURRENT POSITION
Recent application
FC, 2020
Abdullah Atan v PP:
- issue: whether the presumption of trafficking constitutes “credible evidence” (under S.180(4)) to make out prima facie case.
Held:
- “credible evidence proving ingredient of the offence” means that prosecution may prove either by:
1) Adducing credible direct evidence;
2) Drawing inference of fact, i.e. adducing credible circumstantial evidence;
3) Invoking presumption of law, i.e. adducing credible evidence of relevant basic facts.
- presumption is not a credible evidence BUT the basic facts adduced in order to invoke the presumption amounts to credible evidence for the purpose of finding prima facie.
