Written Assignment Position of Haw Tua Tau Case PDF

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LLB 40103LAW OF EVIDENCE IQUESTION 3 What is the position before and after Haw Tua Tau’s case?Relate with Man bin Abas v PP,PP v Saimin and others.In Malaysia, the development of prima facie will require sufficient and adequate proof to proceed with the charge against the accused. The history of de...

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LLB 40103 LAW OF EVIDENCE I QUESTION 3  What is the position before and after Haw Tua Tau’s case? Relate with Man bin Abas v PP,PP v Saimin and others.

In Malaysia, the development of prima facie will require sufficient and adequate proof to proceed with the charge against the accused. The history of development about degree of proof can be partitioned into three divisions comprising of before the case, at the time of the case and the third part is after the case of Haw Tua Tau v PP. Before going into details, it is vital to know the definition of a prima facie case. In common law, prima facie is some evidence of all elements of the crime which is not essentially doubtful. Basically, it doesn’t equivalent to beyond reasonable doubt1. However, if we look into Malaysia’s position, a prima facie case is what the prosecution must establish at the end of its case before the judge decides whether or not the accused has a case to answer and to enter into his defense. The first position was before the case of Haw Tua Tau, the Malaysia court applied the degree of proof as a maximum evaluation. The accused is not obliged to support the issue by evidence that will be entitled in his favor even the matter is not a common sense 2 . In order to establish the prima facie case, there must beyond a reasonable doubt at the close of the prosecution’s case. In the event when there was no rebutting evidence established or the accused remained silent, then an inevitable conviction will appear 3. It can be further illustrated in Section 173(f) and 180 of Criminal Procedure Code. Before its amendment, Section 173 (f) CPC read as follows: ‘If upon taking all the evidence hereinbefore referred to, the Court finds that no case against the accused has been made out, which if unrebutted would warrant his conviction the Court shall record an order of acquittal.

1 University of California Press, 'The Prima Facie Case Standard' (1982) accessed 6 December 2020. 2 Choo Han Teck, 'Haw Tua Tau- The Aftermath (Have We No Case To Answer?)' (1987) 29 Malaysia Law Review accessed 5 December 2020. 3 Vincent Ng Art, Principle Of Prima Facie Case And Maximum Evaluation At The Close Of Prosecution Case (2009) accessed 5 December 2020.

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The above provision means that after producing evidence to establish prima facie case, if the Court finds there is no case against the accused that would convict him, then the Court shall give an order for acquittal4. Meanwhile, Section 180 CPC provides that; ‘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 defense.’ The above provision stated that after the trial proceeding, in the event the accused could not rebut the material evidences adduced by the prosecution, then he would be convicted. However, if the prosecution could not prove reliable evidences, then the accused will be acquitted or he may be called for the defense. The privy council of pre-Haw Tua Tau’s case in interpreting the phrase “if unrebutted” in the old version of Section 180 of CPC was opined that it is essential for the court to keep an open mind as to the reliability and accuracy of the witness at the close of the prosecution case. Hence, it can be said that strict rule evidence has been alleged that it was hard for the prosecution to put a charge against the accused. By looking into Man bin Abas v PP5 the issue on whether the magistrate was made a correct justification to acquit the accused who had remained silent after his defense was called. By calling the accused to enter upon his defense, the magistrate showed that he believed the prosecution’s evidence yet he acquitted the accused.6. It was held that the action of the magistrate in acquitting the accused appears to be inconsistent. The judge seemed to infer the magistrate need to convict the accused who had remained silent when a prima facie case at the end of the prosecution case was established and the defense was called upon him. Hence, we can say that a maximum evaluation of evidence is applied. By

4 Stanley Yeo Meng Heong, 'Discharges Not Amounting To An Acquittal: A Re-Appraisal : K. Abdul Rasheed V. Public Prosecutor And Ah Chak Arnold V. Public Prosecutor.' (1985) 27 Malaya Law Review accessed 1 December 2020. 5 Man bin Abas v PP [1996] 3 SLR 29 6 Mimi Kamariah Majid., Criminal Procedure In Malaysia (3rd edn, University of Malaya Press 1995).

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looking to this approach the principle in PP v Chin Yoke7 where the prosecution must prove beyond a reasonable doubt to call out for defence. In the case of PP V Saimin & Others8 ,the court had a duty to call for defense on the accused person when there is a prima facie in the case. Thus, when the evidence that was tendered by the prosecution constitutes a prima facie case, it would be sufficient to prove the case against the party. This would have to be subjected based on a rigorous test of credibility. In other words, the phrase “if unrebutted would warrant his conviction’ in both Section 173(f) and Section 180 give demand on any exception reasonable reason before the accused is called to answer the charge9. Hence, we can say that in Man bin Abas v PP and PP v Saimin, the ground to establish a prima facie case, the prosecution needs to adduce strong evidence. In the event when the defense was called but then he chooses to remain silent, the accused would be convicted. This would amount to a maximum evaluation of evidence to the case In 1981, the standard of proof at the end of the prosecution case was overturned by Haw Tua Tau where the case was dealt with Section 173(f) of CPC. The view was made by Lord Diplock stated that if the word unrebutted shown that the court had to ask a hypothetical question on the evidence tendered before it. The judge needs to weigh all the evidence adduced by the prosecution side at the end of the case hearing. In the event, when the evidence was satisfied, the prosecution would have succeeded in establishing a case against the accused. The accused then will call upon for defense against the case that made out for him. The minimum evaluation test will require the judge to decide on the issue of law and not facts10 . The reliability and accuracy of any individual witness testimonies until after all the evidence from both sides need to be heard at the close of defendant’s case. 7 PP v Chin Yoke [1940] 9 MLJ 47 8 PP V Saimin & Others [1971] 2 MLJ 16 9 Ng Boon Ka, "The Pendulum that swings the Standard of Proof at the end of the Prosecution's Case in Malaysia" (2006) 14 IIUM Law Journal 10 Naziah Mohd Alias, "Protections For Vulnerable Accused In Malaysian Criminal Trials: Are They Sufficient? Proposal For Reform" (Postgraduate Victoria University of Wellington 2013)

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However in 1982, in the case of Haw Tua Tau, the judge had been more tolerant in establishing prima facie case as minimum evaluation applied as the prosecution need not prove it beyond reasonable doubt. Basically, the burden of proof lies on the prosecution in order to adduce the relevant evidence and disclose all the relevant materials to establish a prima facie case 11. It can be referred to as the persuasive burden proof that indicates a party to tolerate the legal burden on the fact of issue. The Privy Council, in this case, opined that the proper inferences to be drawn would “depend on the circumstances of the particular case, and is a question to be decided by applying ordinary principles12. Before 1997, the term prima facie was inserted in Section 173(f) of CPC. Later in Section 180 was amended to reinstate the prima facie case. Once a prima facie case had been established beyond a reasonable doubt, the accused will be called for defense, or if fail to do so or he chooses to remain silent as to rebut the prima facie case beyond a reasonable doubt. Basically, the objective of this amendment is to reinstate the law as stated in Haw Tua Tau’s case and also to clarify that the standard of proof at the end of the prosecution’s case is prima facie and not beyond reasonable doubt. In PP v Ruddy Idolo 13, the court must therefore exercise maximum evaluation when determining whether the prosecution has proven a prima facie case against the accused. What this entails is subjecting all the evidence of the prosecution witnesses to strict critical scrutiny. The court must henceforth evaluate the evidence with strict critical scrutiny to establish a prima facie case. By looking into the current provision in 2007, Section 173(f)(i) stated that 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. However in Section 173(f)(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. In Section 173(h)(iii) a prima facie case is made out against the accused where the prosecution has adduced credible evidence by proving each ingredient of the 11 G.L Peiris, "The Burden Of Proof And Standards Of Proof In Criminal Proceedings: A Comparative Study Of English Law And A Codified Asian System" (1980) 22 Malaya Law Review 66-106 12 https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/ma-9192-9193-of-2016pp-v-kong-hoo-(private)-limited-anor-rosewood-no-2-judgment-v9-(final)-pdf.pdf 13 PP v Ruddy Idolo [2020] 1 LNS 966

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offences. If it is unrebutted, it would warrant a conviction which equivalent to maximum evaluation. The purpose of subparagraphs (i) and (ii), a prima facie case against the accused where the prosecution has presented credible evidence in proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction14. Thus when read as a whole, the court will only convict the accused when there is a case proven beyond a reasonable doubt. However, the application of this test was not consistently utilized in later cases. In Munusamy v PP15 stated that the learned judge did not err in law in dealing with the credibility of the witnesses at the close of the prosecution case and there was nothing in Haw Tua Tau to suggest the prima facie case approach. This shows that the prima facie case is beyond a hypothetical question beyond reasonable doubt as the court must be evaluating and weigh all the evidence which if unrebutted would warrant a conviction. In the article The Burden at the End of the Prosecution’s case – Haw Tua Tau Revisited” written by Tan Sri Prof. Ahmad Ibrahim16 he disagreed with the decision in Munusamy’s case. The statement where the court should only consider whether the evidence adduced by the prosecution to support the essential elements of the charge was or was not essentially absurd by applying the minimal evaluation test. Despite the confusion in Munusamy, it was followed and confirmed in the case of Junaidi bin Abdullah v PP where the judge stated that by calling on the defense, there was an assumption that the trial judge must have been satisfied that the prosecution had established a prima facie case. On the other hand, in the case of PP v Mohd Rahmin Ahmat17 the court after considering all the evidence on a maximum evaluation, it was held that the prosecution had failed to prove that the accused had possession of the disputed drugs. Hence, the accused did not have any special knowledge of the exclusive possession of the drugs, even though the accused may know about 14 Alwi Abdul Wahab, "Summary Trial Procedure in Subordinate Court in Malaysia : Special Emphasis on Section 173(f) of Criminal Procedure Code" (Postgraduate International Islamic University Malaysia 2001) 15 Munusamy v PP [1987] 1 MLJ 492 16 "Duty Of The Court At The End Of The Prosecution Case – Must We Follow The Privy Council?" (2018) 8 Journal of Malaysian and Comparative Law 17PP v Mohd Rahmin Ahmat [2020] 1 LNS 884

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the disputed drugs. Upon a maximum evaluation of the evidence, the court satisfied that the prosecution had failed to make out a prima facie case against the accused in respect of the charge. Thus we can say that at the end of the prosecution case, the effect of Haw Tua Tau’s case, an acquittal either due to the facts adduced by the prosecution is fundamentally incredible for the accused to be liable in respect of the charge. The burden of proof remains on the prosecution case throughout the trial. The evidence discloses a prima facie case only when it is contradicted and if believed, it will be sufficient to prove the case against the accused. This would mean that before the defense 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 test of credibility. In other words, the phrase ‘if unrebutted would warrant his conviction’ in both section 173 (f) and section 180 is strongly worded which, given its literal interpretation, would demand an extremely solid reason before the accused is called to answer the charge. Credible evidence is evidence that has been clarified through the process of evaluation. Hence, any evidence which is not credible to be acted upon should be rejected18. In the case of Chiong Swee Ling v PP19 at the end of the prosecution case, the trial judge had erred in subjected the evidence of the prosecution's witnesses to a maximum evaluation. The appellant's counsel argued that the prosecution had failed to prove all the elements of the offence and established a prima facie case against the appellant. The prosecution had not presented all the evidence which were in favor of the appellant. Hence the appellant was not given a reasonably preliminary trial. It shall be noted that the probative value of the evidence on all the important elements in the charge taken as a whole. However if unrebutted, it is sufficient to convince the Court to consider the existence of facts of such essential elements. Reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an unreal doubt or conjuncture unrelated to evidence20. Reasonable doubt is a doubt that the person hesitates to the correctness of the conclusion of the case. Basically, it is the doubt 18 Ibid 19 Chiong Swee Ling v PP [2018] 1 LNS 2150 20 "Reasonable Doubt: An Argument against Definition" (1995) 108 Harvard Law Review 1955-1972

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that resolves in the judgment which remained there. This doubt must be a doubt raised from the evidence and not an imaginary doubt or assumption which is unrelated to evidence. Prior the amendment of CPC in 1997, there have been debate and conflicts in determining the test whether maximum evaluation or minimum evaluation should be used and also conflict upon the degree of proof needed to establish a prima facie case. It must be clear that the burden of proof lies on the prosecution to prove a prima facie case and failure to do so the accused will be acquitted. If the judge had been more lenient in establishing prima facie case whereas prosecution need not prove it beyond reasonable doubt and minimum evaluation applied in Haw Tua Tau’s case. However, in the latter case the Court rule based on Pre Haw Tua Tau that applies for maximum evaluation and standard proof of beyond reasonable doubt for prima facie to be established. Finally, once the prima facie case has been established beyond a reasonable doubt, the accused will be called for defense and need to rebut the prima facie beyond a reasonable doubt. Failure to rebut, the accused will be convicted and if he chose to remain silent also will be convicted. However, there are some conflicting cases where some of the decision followed Haw Tua Tau’s case and some are not. The cases which do not follow Haw Tua Tau, in the case of PP v Dato Sri Mohd Najib21, clearly shows that there is no such requirement to provide reasons for calling off the defense against the accused. It was said that the judge had failed to have the attention of the defense called to the principal points in the evidence for the prosecution. It shall inform him of his right to give evidence and if he so elects, to call his attention to the principal points in the evidence for the prosecution which tell against him so that he might have the fullest opportunity of explaining them. In the case of PP v Perdaus bin Ahmad Sah & Anor22 , a prima facie case is simply one that is sufficient for the accused to be called upon to answer. The proof showed should be overthrown 21PP v Dato Sri Mohd Najib [2020] 8 CLJ 319 22 PP v Perdaus bin Ahmad Sah & Anor [2020] 1 LNS 758

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only by evidence in rebuttal. If the evidence is unrebutted, then it is adequate to the court in believing the existence of facts stated in the charge. Besides, the court also consider the existence so probable that a reasonable man ought to act upon the assumption that those facts exist or occurred. The impact of significant standard where an acquittal either because of the facts adduced by the prosecution which are inherently incredible. The court finds that the prosecution has made out a prima facie case where the fact that is not inherently incredible on the essential elements of the offence. The standard of proof where pre-Haw Tua Tau’s case applied a maximum standard of evaluation. During Haw Tua Tau use a minimum standard of evaluation and post haw Tua Tau where prima facie case but applied maximum standard which is beyond a reasonable doubt. As a conclusion, the amendment of the Criminal Procedure Code in 1997 to insert the phrase prima facie where it reflecting the spirit of Haw Tua Tau’s case. The test maximum standard evaluation of proof but evidence to be positively weighed. In addition, the amendment of 2006/2007 where it inserts the definition of prima facie in Section 173(h)(iii) and Section 180(4). Hence, a prima facie case is the foundation of a lawfully required rebuttable assumption. By all means, a prima facie case is the reason of such justification to verdict on part of the prosecution from rebutted by the accused.

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BIBILIOGRAPHY "Duty Of The Court At The End Of The Prosecution Case – Must We Follow The Privy Council?" (2018) 8 Journal of Malaysian and Comparative Law. "Reasonable Doubt: An Argument against Definition" (1995) 108 Harvard Law Review. Abdul Wahab, Alwi, "Summary Trial Procedure in Subordinate Court in Malaysia : Special Emphasis on Section 173(f) of Criminal Procedure Code" (Postgraduate International Islamic University Malaysia 2001). Art V, Principle Of Prima Facie Case And Maximum Evaluation At The Close Of Prosecution Case (2009) accessed 5 December 2020 Ka, Ng Boon, "The Pendulum that swings the Standard of Proof at the end of the Prosecution's Case in Malaysia" (2006) 14 IIUM Law Journal. Majid. M, Criminal Procedure In Malaysia (3rd edn, University of Malaya Press 1995) Meng Heong S, 'Discharges Not Amounting To An Acquittal: A Re-Appraisal : K. Abdul Rasheed V. Public Prosecutor And Ah Chak Arnold V. Public Prosecutor.' (1985) 27 Malaya Law Review accessed 1 December 2020 Mohd Alias, Naziah, "Protections For Vulnerable Accused In Malaysian Criminal Trials: Are They Sufficient? Proposal For Reform" (Postgraduate Victoria University of Wellington 2013). Peiris, G.L, "The Burden Of Proof And Standards Of Proof In Criminal Proceedings: A Comparative Study Of English Law And A Codified Asian System" (1980) 22 Malaya Law Review. Teck C, 'Haw Tua Tau- The Aftermath (Have We No Case To Answer?)' (1987) 29 Malaysia Law Review accessed 5 December 2020

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University

of

California

Press,

'The

Prima

Facie

Case

Standard'

(1982)

accessed 6 December 2020

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