Chapter 2.4 - Burden & Standard of Proof: Prima Facie

Question 1

PRIMA FACIE

overview

Answer 1

1) Meaning of PF
2) Pre-HTT
3) HTT test
4) Post-HTT & amendments
5) Current position

Question 2

PRIMA FACIE

Meaning of PF

Answer 2

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.

Question 3

POSITION PRE-HAW TUA TAU

Overview

Answer 3

1) Standard of proof
2) PF evidence pre-HTT
3) Calling to enter defence

Question 4

POSITION PRE-HAW TUA TAU

Standard of proof

Answer 4

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.

Question 5

POSITION PRE-HAW TUA TAU

PF evidence pre-HTT

Answer 5

PP v Saimin:

• PF evidence is one which “if uncontradicted & believed would be sufficient to prove the case against the accused”.

Question 6

POSITION PRE-HAW TUA TAU

calling to enter defence

Answer 6

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.

Question 7

HAW TUA TAU

Haw Tua Tau test

Answer 7

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.

Question 8

POSITION POST-HAW TUA TAU

Amendments

Answer 8

1) 1997 amendment
2) Cases post-1997 amendment
3) 2006 amendment

Question 9

POSITION POST-HAW TUA TAU

1997 amendment

Answer 9

• 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.

Question 10

POSITION POST-HAW TUA TAU

Case post-1997 amendment

Answer 10

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.

Question 11

POSITION POST-HAW TUA TAU

2006 amendment

Current position

Answer 11

• 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.

Question 12

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Question 14

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Question 15

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Question 16

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Question 17

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Question 18

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Question 19

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Question 20

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Question 21

CURRENT POSITION

Overview

Answer 21

1) The law
2) Meaning of PF case
3) Test for PF
4) Meaning of “all evidence”
4) Recent application

Question 22

CURRENT POSITION

The law

Answer 22

1) S.173(h)(iii) CPC:

2) S.180(4) CPC:

Question 23

CURRENT POSITION

Meaning of prima facie case

Answer 23

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.

Question 24

CURRENT POSITION

Test for PF

Answer 24

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.

Question 25

CURRENT POSITION

Meaning of “all evidence” at the end of defence case

HC, 2020

Answer 25

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.

Question 26

CURRENT POSITION

Recent application

FC, 2020

Answer 26

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.