Arulpragasan Sandaraju

[1996] 1 MLRA v. PP i

ARULPRAGASAN SANDARAJU
v.
PP
[1996] 1 MLRA 588

Federal Court, Kuala Lumpur

Eusoff Chin CJ, Lamin Mohd Yunus PCA, Anuar Zainal Abidin CJM, Mohd
Azmi Kamaruddin, Edgar Joseph Jr, Mohamed Dzaiddin, Wan Adnan Ismail
FCJJ
[Criminal Appeal No: 05-237-92]
27 July 1996

Criminal Procedure: Trial — Close of prosecution’s case — Duty of court —

Whether court must undertake maximum evaluation of evidence to determine whether
prosecution had established charge against accused beyond reasonable doubt —
Standard of proof — Meaning of “case” required to be made out under s 180 Criminal
Procedure Code — “Case against accused which if unrebutted would warrant his
conviction” — Whether prima facie case or beyond reasonable doubt case

Criminal Procedure: Appeal — Record of appeal — Litigants — Appellate court

— Whether litigants entitled to complete and accurate copies of record of appeal —
Whether appellant prejudiced due to failure to provide complete and accurate copies
of record of appeal

The appellant was convicted by the High Court for trafficking in cannabis
weighing 1,396.7g in conflict with s 39B(1)(a) of the Dangerous Drugs Act
1952 (“DDA”) and was sentenced to death. At the end of the prosecution
case, in response to the defence’s submission that there was no case to answer,
the judge held that the prosecution had established a prima facie case. The
trial judge stated that the prosecution evidence was sufficient to raise the
presumptions of possession and trafficking in s 37(d) and 37(da) respectively
of the DDA and that the appellant had failed to rebut these presumptions.
The appellant appealed and contended that the judge had misdirected
himself regarding the standard of proof required and that the onus was on the
prosecution not to establish a mere prima facie case, but to tender evidence
which, if unrebutted, established the case against the appellant beyond all
reasonable doubt. The main question in the appeal was the standard of proof
that was required from the prosecution in criminal trials before a High Court
judge, sitting alone, in order that the judge might rule that there was a case
for an accused to answer. This depended upon the construction of the words
“which if unrebutted would warrant his conviction in s 180 of the Criminal
Procedure Code (“CPC”).
 Arulpragasan Sandaraju
ii v. PP [1996] 1 MLRA

Held (allowing the appeal):

Per Edgar Joseph Jr FCJ (majority):

(1) Applying the “beyond all reasonable doubt test” to the evidence adduced
by the prosecution, at the close of its case, it would have been wholly unsafe to
convict the appellant of a capital offence, assuming he had elected to remain
silent and to call no evidence. The misdirection in law by the Judge, in applying
the wrong test when calling for the defence, might well have occasioned a
miscarriage of justice, having regard to the unsatisfactory nature of the
prosecution’s evidence. He should, therefore, have ruled at the close of the
case for the prosecution, that the evidence tendered by the prosecution was not
strong enough to establish the case against the appellant beyond all reasonable
doubt, that the appellant therefore had no case to answer, and acquitted and
discharged him without calling for his defence. (paras 158-159)

(2) Litigants as well as the appellate court were entitled to complete and
accurate copies of the appeal record. A perusal of the record of appeal provided
showed that it was riddled with omissions, both in the notes of evidence, as
well as in the notes of argument, due I gather, to the illegible handwriting of
the judge, who was no longer in service. (paras 166-167)

(3) The appellant had been prejudiced since the affected portions of the record
relating to the evidence, might have contained material favourable to him
to which we have been denied access. Bearing in mind that this Court had
only the printed record to go by, it was impossible to rule out prejudice to the
appellant who had been convicted of a capital offence. (para 168)

(4) There was substance in the complaint that the record of appeal suffered
from material omissions, and bearing in mind the unsatisfactory nature of
the prosecution’s evidence, I would, on this further ground also, allowed the
appeal. (para 169)

Per Eusoff Chin CJ (majority):

(5) The onus was on the prosecution throughout the case in any criminal trial
to prove the charge against the accused beyond reasonable doubt. The same
standard of proof applied at the intermediate stage of the trial, ie at the close
of the prosecution. Pursuant to the interpretation of s 180 of the CPC, the
standard of proof required on the prosecution at all stages of the hearing was
one of beyond reasonable doubt. (para 196)

Per Lamin Mohd Yunus PCA (majority):

(6) At the close of the prosecution case if it would be safe to convict on the
evidence for the prosecution then and only then the accused would be called
to enter his defence. This answered the second limb of s 180. This would mean
that the prosecution had to prove every ingredient of the charge and at the end
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP iii

of the case for the prosecution the court should then evaluate all the admissible
evidence as adduced relevant to the charge and decide whether to call the
accused to enter his defence. This suggested that the court was required to
undertake a “maximum evaluation” of the evidence at the close of the case for
the prosecution. (para 203)

Per Wan Adnan Ismail FCJ (majority):

(7) Under s 180 of the CPC, the prosecution was obliged to make out against
the accused a case if unrebutted would warrant his conviction before the
accused could be called upon to enter on his defence. The phrase “if unrebutted
would warrant his conviction” described the type or nature of the case that
the prosecution was obliged to make out. If the court was satisfied that the
prosecution had succeeded in making out such a case then the court shall call
upon the accused to enter on his defence. If the accused did not tender any
evidence at all the court must convict the accused. Since in order to convict
the accused the court must be satisfied of the guilt of the accused beyond all
reasonable doubt, the court before calling the accused to enter upon his defence
must be satisfied that the prosecution had made out a case against the accused
beyond all reasonable doubt. (para 207)

(8) Before the trial court could call the accused to enter on his defence the court
must first be satisfied that each and every ingredient of the offence charged
had been proved by the prosecution beyond all reasonable doubt. This did not
mean that the court in calling the accused to enter on his defence had already
made a finding on the guilt of the accused. The court only found that every
ingredient of the offence had been proved beyond all reasonable doubt and that
if there was no evidence in rebuttal at all the accused would be convicted on
the evidence adduced by the prosecution. This was the first stage of the trial.
(para 208)

(9) The second stage come after the defence had been called. The defence could
either rebut the prosecution evidence or raise a reasonable doubt as to the truth
of the prosecution case. At the end of the defence case, it was the duty of court
to consider the defence evidence in the light of the prosecution evidence. Only
then the Court would make a finding on the guilt of the accused. This was
pursuant to s 183 of the CPC. (para 209)

Per Mohd Azmi FCJ (dissenting on standard of proof required at end of

prosecution’s cases):

(10) For the purpose of our CPC, and in the context of the two-tier approach
in criminal trials before a single judge, a prima facie case under s 180 was
dissimilar to a “beyond reasonable doubt” case on the guilt of an accused
under s 183. It was neither the function nor the duty of the Court, under s 180
of the CPC, to decide on the guilt of an accused. (para 224)
 Arulpragasan Sandaraju
iv v. PP [1996] 1 MLRA

(11) The court was not permitted to substitute the word “case” (which was a
question of law) in s 180 of the CPC with the word “evidence” (which was a
question of fact). To do so would be unjustified and wrong in law, and would
amount to making an unauthorised amendment to a statutory provision
which touched on the liberty of the subject. A legislative intervention
was necessary before the word “case” could be substituted with the word
“evidence”. (paras 225 & 240)

(12) Section 180 of the CPC dealt with the burden of proof, not the quantum
of proof. To require a trial judge to find an accused, in fact and in law, guilty
beyond reasonable doubt under s 180 of the CPC would not only be contrary
to the principle of fair trial in our adversarial system of criminal justice, but also
inconsistent with the requirement of the phrase “if unrebutted” read together
with s 183(1) and (2) of the CPC. (para 240)

(13) The cardinal principle of our criminal law on the presumption of innocence
should not be whittled down by interpreting s 180 of the CPC in such a way
that it imposed a duty on the trial judge to find the accused guilty beyond
reasonable doubt prematurely at the close of the prosecution, as well as a
heavier burden on the accused to rebut the prosecution’s case, when in law,
the defence’s duty was merely to raise a reasonable doubt to earn an acquittal.
The prima facie interpretation of s 180 of the CPC is, thus, more consistent with
the concept of fair trial under natural justice and the principles of criminal law,
and must, therefore, be preserved as an indispensable requirement of justice.
(para 245)

(14) For the purpose of establishing a prima facie case under s 180 of the CPC,
the Court should not accept any evidence as credible unless they were “beyond
reasonable doubt” evidence. However, such acceptance need not be conclusive
on the guilt of the accused but should only be on the hypothetical basis that no
further evidence was forthcoming. As such, the court must keep an open mind
on the question of guilt until the conclusion of the trial. This was different and
distinct from the process of finding the accused guilty beyond reasonable doubt
under s. 183 of the CPC. It was fatal to ignore the hypothetical nature of s 180
of the CPC. (para 253)

Per Mohamed Dzaiddin FCJ (dissenting on standard of proof required at end

of prosecution’s cases):

(15) The primary question of law for our determination was regarding the
standard of proof required from the prosecution under s 180. In my opinion,
the case “which if unrebutted would warrant a conviction” found in s 180
means a prima facie case. (para 287)

(16) If the judge came to the conclusion after hearing the prosecution’s evidence
that there was evidence (not inherently incredible) which constituted a prima
facie case which the accused should be called upon to answer, he must call the
accused to enter upon his defence. (para 289)
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP v

(17) Section 189(1) calls for a two-stage process in a criminal trial and this
could only be achieved if a minimum evaluation of the evidence was made
at the close of the prosecution’s case and this of necessity made the question
that the court had to ask itself at the close of the prosecution’s case a purely
hypothetical one. (para 292)

(18) The Judicial Commissioner had considered the prosecution evidence and
came to a correct conclusion that there was evidence not inherently incredible
to constitute a prima facie case. Upon considering the evidence as a whole,
in particular that of the appellant and the main prosecution witness, Ravi
Shankar (PW8), the appellant had created a reasonable doubt with respect to
the issue of possession of 1396.7 grammes of ganja and in view of the failure
of the Judicial Commissioner to make any specific finding of trafficking in the
ganja under s 37(da) of the DDA, the conviction and sentence could not be
sustained. (paras 295-296)

Case(s) referred to:

A Ragunathan v. PP [1981] 1 MLRA 209; [1982] 1 MLJ 139; [1982] CLJ (Rep) 63
(refd)
Abdul Ghani v. PP [1984] 1 MLRA 386; [1985] 1 MLJ 93; [1984] 2 CLJ 599 (refd)
Artemiou v. Procopiou [1966] 1 QB 878 (refd)
Attorney-General v. Dean and Cannons of Windsor [1860] 8 HLC 369 (refd)
Bater v. Bater [1951] P 35 (refd)
Beamish v. Beamish [1861] 9 HLC 274 (refd)
Bridges v. North Lond Rly [1874] LR 7 HL 213 (refd)
Considine v. Lemmer [1971] SASR 39 (refd)
Duport Steels Ltd v. Sirs [1980] 1 WLR 142 (refd)
Flower v. Ebbw Vale Steel, Iron & Coal Co [1934] 2 KB 132 (refd)
Gooi Loo Seng v. PP [1993] 1 MLRA 227; [1993] 2 MLJ 137; [1993] 3 CLJ 1; [1993]
2 AMR 1135 (refd)
Great Western Railway Company v. Owners of SS Mostyn [1928] AC 57 (refd)
Haw Tua Tau v. PP [1981] 1 MLRA 32; [1981] 2 MLJ 49; [1981] CLJ (Rep) 11
(not folld)
Hoh Keh Peng v. PP [1947] 1 MLRA 61; [1948] 1 MLJ 3b (refd)
Hornal v. Neuberger Products Ltd [1957] 1 QB 247 (refd)
Jacobs v. London County Council [1950] AC 361 (refd)
Junaidi Abdullah v. PP [1993] 1 MLRA 452; [1993] 3 MLJ 217; [1993] 4 CLJ 201;
[1993] 2 AMR 2209 (overd)
Karam Singh v. PP [1967] 1 MLRA 416; [1967] 2 MLJ 25 (refd)
Khoo Hi Chiang v. PP [1993] 1 MLRA 701; [1994] 1 MLJ 265; [1994] 2 CLJ 151;
[1994] 1 AMR 323 (folld)
 Arulpragasan Sandaraju
vi v. PP [1996] 1 MLRA

Khoo Sit Hoe & Ors v. Lim Thean Tong [1912] AC 323 (refd)
Krishna Murthy v. Abdul Subban [1965] 1 CRLJ 565 (refd)
London and North Eastern Railway Company v. Berriman [1946] AC 278 (refd)
Magor and St Mellons Rural District Council v. Newport Corporation [1952] AC 189
(refd)
Meaz v. the Queen [1955] 93 CLR 493 (refd)
Mah Kok Cheong v. R [1953] 1 MLRH 541; [1953] 1 MLJ 46 (refd)
Manson v. Duke of Westminster [1981] 2 AER 40 (refd)
May v. O’sullivan [1954 - 55] 92 CLR 654 (refd)
Mohamed Din v. PP [1984] 2 MLRH 629; [1985] 2 MLJ 251 (refd)
Mohamed Kassim v. R [1956] 1 MLRH 286; [1956] 1 MLJ 212 (refd)
Mohamed Yatim Abu Bakar [1949] 1 MLRH 439; [1950] 1 MLJ 57 (refd)
Muniandy & Ors v. PP [1966] 1 MLRA 495; [1966] 1 MLJ 257 (refd)
Munusamy v. PP [1986] 1 MLRA 292; [1987] 1 MLJ 492; [1987] CLJ (Rep) 221 (refd)
Ng Theng Shuang v. PP [1995] 2 SLR 36 (not folld)
Nicholas v. Penny [1950] 2 All ER 91 (refd)
Non-metallic Mineral Products Manufacturing Employees Union & Ors v. SouthEast
Asia Fire Bricks Sdn Bhd [1976] 1 MLRA 10; [1976] 2 MLJ 67; [1983] 1 ILR 71 (refd)
Ong Kiang Kek v. PP [1970] 1 MLRH 273; [1970] 2 MLJ 283 (refd)
Pavone v. PP [1985] 2 MLRH 558; [1984] 1 MLJ 77 (refd)
PP v. Lee Yee Heng [1937] 1 MLRH 589; [1938] 1 MLJ 117b (refd)
PP v. Annuar Ali [1946] 1 MLRH 337; [1948] 1 MLJ 38 (refd)
PP v. Balasubramaniam [1947] 1 MLRH 608; [1948] 1 MLJ 119 (refd)
PP v. Chin Yoke [1939] 1 MLRH 103; [1940] 1 MLJ 47 (refd)
PP v. Fong Ah Tong & Cheong Chi Shen [1940] 1 MLRH 641; [1940] 1 MLJ 240 (refd)
PP v. Gan Lim Soon [1993] 3 SLR 261 (refd)
PP v. Goo Kian [1938] 1 MLRH 231; [1939] 1 MLJ 291b (refd)
PP v. Lee Ee Teong [1953] 1 MLRH 608; [1953] 1 MLJ 244 (refd)
PP v. Lim Teong Seng & 2 Ors [1946] 1 MLRA 57; [1946] 1 MLJ 108 (refd)
PP v. Man Abas [1939] 1 MC 160 (refd)
PP v. Omar Lopez [1966] 1 MLRH 149; [1967] 2 MLJ 281 (refd)
PP v. Wong Wai Hung [1993] 1 SLR 927 (refd)
R v. Galbraith 73 Cr App R 124 (refd)
R v. Koh Soon Poh [1935] 1 MLRH 595; [1935] 1 MLJ 120 (refd)
Ricket v. Metropolitan Railway Co [1867] LR 2 HL 175 (refd)
River Wear Comrs v. Adamson [1877] 2 AC 743 (refd)
Sim Ah Cheok v. PP [1991] 1 MLRA 23; [1991] 2 MLJ 353 (refd)
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP vii

Soo Sing & Ors v. PP [1951] 1 MLRA 46; [1951] 1 MLJ 143 (refd)
Tan Boon Kean v. PP [1995] 2 MLRA 28; [1995] 3 MLJ 514; [1995] 4 CLJ 456; [1995]
3 AMR 3007 (overd)
US Cas Co v. Kelly, 50 SE2 238, 240, 78 Ga App 221 (refd)
V Daniel v. PP [1956] 1 MLRH 398; [1956] 1 MLJ 186 (refd)
Vacher & Sons Ltd v. London Society of Compositors [1913] AC 107 (refd)
Watt Or Thomas v. Thomas [1947] AC 488 (refd)
Williams v. R [1982] WAR 277 (refd)
Wong Yiap Long & Anor v. PP [1955] 1 MLRH 488; [1955] 1 MLJ 132 (refd)
Woolmington v. DPP [1935] AC 462 (refd)
Yeo Tse Soon & Anor v. PP [1994] 1 MLRA 479; [1995] 3 MLJ 255; [1995] 2 CLJ 179
(not folld)
Zanetti v. Hill [1962] 18 CLR 433 (refd)

Legislation referred to:

Constitution of Singapore [Sing], arts 4, 9(1)
Courts of Judicature Act 1964, s 60(1)
Criminal Procedure Code (Amendment) Act 1976 [Sing], s 195
Criminal Procedure Code, ss 173(f), (h), 178, 180, 182, 183(1), 190, 214(2), (3)
Criminal Procedure Code [Sing], ss 177C, 188(1), 189(1)
Dangerous Drugs Act 1952, ss 2, 37(d), (da), 39B(1)(a), (2)
Evidence Act 1950, s 114(g)
Sarawak Criminal Procedure Code, s 163

Other(s) referred to:

Archbold on Criminal Pleading Evidence & Practice, 1993, p 1/564,para 4-307
Blackstone’s Criminal Practice, 1993, p 1774, para F3.13
Cross, Precedent in English Law, 4th edn, p 72
Jowitt’s Dictionary of English Law, 2nd Edn, p 1,422
Justice Glass, The Insufficiency of Evidence to Raise a Case to Answer [1981] 55
ALJ 842, p 845
Justice MPH Rubin, Standard Of Proof Relating To Sufficiency Of Evidence At
Criminal Trials: Mental Gymnastics Since Haw Tua Tau, [1996] 2 CLJ lxiv
Laurence Goldstein, Precedent in Law, p 180
Prof Tan Sri Ahmad Ibrahim, Haw Tua Tau v. PP - Duty of Court at End of
Prosecution Case - Must We Follow the Privy Council?, [1981] 1 JMCL 223
Sarkar On Evidence, p 45
West Publishing Co, American Words and Phrases, Permanent Edition, vol 46,
p 365
Zowitt’s Dictionary of English Law, 2nd edn, p 1422
 Arulpragasan Sandaraju
viii v. PP [1996] 1 MLRA

Counsel:
For the appellant: Karpal Singh (Manjit Singh, M Manoharan & Jagdeep Singh Deo
with him); M/s Karpal Singh & Co
For the respondent: Zaitun Zawiyah Puteh DPP (Mohd Yusof Zainal Abidin, Azhar
Mohamed & Stanley C Augustine with her); AG’s Chambers
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP ix

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 Arulpragasan Sandaraju
588 v. PP [1996] 1 MLRA

JUDGMENT

Edgar Joseph Jr FCJ (Majority):

Preliminary

[1] This appellant was convicted in the High Court, at Penang, for trafficking in
a dangerous drug, to wit, cannabis weighing 1,396.7 grams, in contravention
of s 39B(1)(a) of the Dangerous Drugs Act 1952 (‘the Act’) and sentenced to
death. The charge alleged that the offence had been committed at 11.30 in the
morning of 8 December 1986, in the vicinity of a factory at Jalan Permatang
Pauh, in the district of Butterworth, in the State of Penang.

[2] The trial commenced on 20 July 1992 - more than five years after the date
of the alleged offence - and after a number of broken hearings, ended on 11
December 1992, with the conviction and sentence of death.

The Case For The Prosecution

[3] The essential facts may be shortly stated.

[4] According to the evidence led by the prosecution, on the date and about
the time and place referred to in the charge, a certain Ravi Shankar (‘PW8’),
who was a security guard, attached to the factory aforesaid, and the star
witness for the prosecution, was on duty at the security guard’s pondok,
which was located close to the entrance gate to the factory. Between 9am
and 9.30am on 8 December 1986, the appellant had entered the compound
of the factory through a small door, carrying a small chocolate-coloured zip
bag (‘the brown bag’), and had then entered the pondok.

[5] Ravi Shankar alleged that the appellant had then engaged in a conversation
with him, in the course of which, the appellant, having placed the brown bag
on a chair in the pondok, for no apparent reason, deliberately showed him its
contents, saying they were valuable. These contents included rolls, of what
appeared to be herbal material, which Ravi Shankar suspected to be ganja,
later, the subject matter of the charge. The appellant had also showed him a
sharp instrument which was in the brown bag but was not produced at the
trial. He also testified that the appellant had then left the brown bag on a chair
in the pondok and departed to make a call, from a telephone located near the
pondok, after which the appellant had returned to the pondok, picked up the
brown bag and walked towards a lorry parked nearby, he being its attendant,
entered it and deposited the brown bag in the driver’s cabin. At the wheel of
the lorry was its driver, one Mohd Kabir (PW5’).

[6] Ravi Shankar wasted no time in telephoning the police, as a result of

which Inspector Ismail bin Dan (‘PW2’), accompanied by four of his men,
namely, Det/Cpl Amir, Inspector Wan Rashid, Det Murad and Det Saad
had left the Cawangan Anti Dadah, Butterworth, at about 11.30am on the
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 589

same day, arriving at the premises of the factory shortly thereafter where
he noticed the parked lorry, both its driver and the attendant, that is to say,
Kabir and the appellant, respectively, being in its goods’ compartment, and
engaged in arranging boxes of mosquito repellant.

[7] After a brief detour at the office, adjacent to the factory, to contact
personnel there, Inspector Ismail had then walked up to the lorry and
conducted a search of it. Upon his instructions, the driver Kabir had opened
up a compartment behind the driver’s seat, inspection of which revealed the
presence of two bags, one being the brown bag, and the other, a Benson &
Hedges bag, yellow in colour (‘the yellow bag’).

[8] On examining the contents of the yellow bag, he found nothing

incriminating; that is to say, only clothing and a Bank Nasional savings book
in the name of Kabir.

[9] However, on examining the contents of the brown bag, he found several
rolls, of what appeared to be herbal material, yellow in colour which fell to the
ground and which he suspected to be ganja. The rest of the contents consisted
of two underpants, a Bank Nasional savings book, its registered holder being
the appellant Arulpragasan a/l Sandaraju. Without first administering the
necessary caution under the Act, to either Kabir or the appellant, he asked
Kabir whose bag it was, and the latter replied it belonged to the appellant.
The witness then asked the appellant the same question but did not testify as
to the reply given.

[10] Although there was a dispute at the trial as to whether the bag carried
by the appellant was the brown bag or the yellow bag - with the appellant
and the driver Kabir accusing each other-the yellow bag was not produced
by the prosecution or its non-production accounted for. Nor, was any search
list produced. And, when the security guard Ravi Shankar was examined
in chief by the DPP and asked if he could identify the bag concerned, he
replied, he could. The brown bag, P3 A, was then shown, and he replied:
“Warna sama, kebesaran dan tinggi beg, tetapi ada lama sedikit - masa saya
nampak beg... (colour the same, size and height but slightly old - at the time
I saw the bag... (illegible)”. (See p 114 B & C appeal record). This reply to an
important question is scarcely intelligible and is aggravated by the illegible
handwriting of the Judge who is now no longer in service. These are matters
which emphasise the importance of tendering the yellow bag as an exhibit.

[11] Both the appellant and the lorry driver Kabir were arrested and the
brown bag with its contents seized by the police. After being detained for 14
days Kabir was released, but the appellant was prosecuted upon the charge
aforesaid.

[12] The offending exhibits, to wit, the rolls of suspected cannabis, were
promptly dispatched to the chemist who, upon an examination and analysis
 Arulpragasan Sandaraju
590 v. PP [1996] 1 MLRA

thereof concluded that the same contained 1,396.7 grams of cannabis as

defined under the Act.

[13] Going back a little, the lorry driver Kabir - an obvious suspect - had
testified for the prosecution, and the gist of his testimony was that the yellow
bag belonged to him but the brown bag belonged to the appellant. It was
put to him, by Counsel for the defence, that the appellant’s bag was not the
brown bag, but the yellow bag. However, he maintained that the appellant’s
bag was the brown bag.

[14] As for the chemist, he testified that he had on 10 December 1986 about
11am received, by hand, from one Inspector Suhaimi, a sealed package, on
opening which he found a plastic sling bag in which were 3,980 brown paper
rolls, each of which he found to contain greenish herbal material. He then
separated the 3,980 rolls into 79 bundles, each containing 50 rolls and one
containing 50 rolls.

[15] He then described the modus operandi he had adopted in carrying out the
various test in the following terms:

I opened all the 3,980 brown paper rolls and carried out physical
examination visually. From my visual exam I found the herbal material
in all the rolls to possess similar gross botanical features eg. leaves, fruits
and seeds were similar to each other in all the rolls. I examined the plant
material in all the rolls under a microscope. Under the microscope I found
all the plant material to possess cystolith hairs which is characteristic feature
of cannabis plant and also glandular hairs. Under the microscope I also
noted, as... of resin found on the surfaces of this herbal material after this
I then took 400 random rolls as a representative at the test from these 400
rolls took samples of plant material for the next two tests (...) and the thin
layer (TLC) test Resinous extract from these 400 samples of herbal material
were subjected to the Dy... test where act of them gave a strong violet colour
which was extractable with chloroform. This results indicates the presence
of cannabinoids in the resinous extract of the herbal material. The resinous
extract were then subject to the test where all the resinous extract shows
strong positive result for the presence of cannabinoids. This test confirms the
presence of cannabinoids which are found only in cannabis plants from all
these 4 test... physical exam... exam Dy Levin test and TLC test, I confirm
that the herbal material found in the 3,980 brown paper rolls to be cannabis
from which the resin has not been extracted. Before analysis I ensured all
the instruments are in good working condition. The 400 rolls in... the 3,980
rolls in more than 10%.

[16] Upon the evidence aforesaid, the Judge ruled “that the prosecution had
established a prima facie case in accordance with the principles enunciated
in the cases of Haw Tua Tau, Ragunathan and Munusamy, and so there was a
case to answer”, thereby, over-ruling a submission of no case to answer by
Counsel for the appellant.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 591

The Case For The Defence

[17] The appellant, who was 18 years of age at the time of his arrest, elected
to testify on oath. He claimed that the case against him had been framed.
He said that on the day in question, on arrival at the gate of the factory
he was carrying, not the brown bag but the yellow bag, containing clothing
necessary for his overnight stays when on duty. On entering the compound
of the factory, he had met the security guard Ravi Shankar who was then in
his pondok and, upon enquiry, was told that his lorry had not arrived yet, so
he left his bag in the pondok, at the same time, inviting the security guard
for breakfast, but the invitation was declined. He then went to the canteen
where he had his breakfast and returned about half an hour later, by which
time the lorry had arrived and the driver Kabir was standing beside the lorry.
He then left his Bank Nasional savings book in what he described as “his
sleeping area of the lorry” - referring no doubt, to the compartment in the
driver’s cabin - moved to the luggage compartment in the lorry and started
arranging the boxes there. At that time, he believed that his bag was still in
the pondok. His intention then was to collect his bag after completing his
task. At that time, there were six or seven persons around the lorry. While he
was working on the lorry, the police arrived, ordered him to get down from
the lorry which he did. As he stood at the front of the lorry, a male Malay
and the driver of the lorry Kabir, got on the lorry, and brought down a box
from what he described as “his sleeping area” in the lorry. From the box, the
police recovered two bags, to wit, the brown bag and the yellow bag. The
appellant claimed that it was the yellow bag which was his but not the brown
bag. From the brown bag the police recovered the rolls of suspected cannabis
of which the appellant maintained he had no knowledge. He also denied that
he had ever carried the brown bag and, consequently, there was no truth in
the allegation that he had shown the rolls of ganja in it to Ravi Shankar.

[18] The clear implication arising from the appellant’s testimony was that
the case against him had been framed, that is to say, that his Bank Simpanan
Nasional savings book had been planted in the brown bag, not by the
police but by person or persons unknown, and that there was both time and
opportunity for this.

The Findings And Verdict In The Court Of Trial

[19] The Judge found the security guard Ravi Shankar to be a witness of
truth and could think of no reason for rejecting his testimony especially since
he was a stranger to the appellant and would have no conceivable reason
to fabricate evidence against the appellant. The Judge considered that the
recovery of the Bank Nasional savings book, belonging to the appellant,
along with rolls of ganja, from the brown bag, as deposed to by Inspector
Ismail, provided highly incriminating evidence against the appellant. He
therefore, concluded, that the brown bag belonged to the appellant and that
its contents, including the rolls of ganja, were in his possession.
 Arulpragasan Sandaraju
592 v. PP [1996] 1 MLRA

[20] The Judge concluded that, upon the evidence led by the prosecution, the
presumptions under s 37(d) (of possession) and 37(da) (of trafficking) of the
Act arose and that the appellant had failed to rebut the same. He accordingly
found the appellant guilty of the offence charged and sentenced him to death,
being the mandatory sentence provided by Law.

The Grounds Of Appeal

[21] Before us, the conviction was attacked on a number of grounds.

[22] First of all, it was submitted that the Judge had misdirected itself as
regards the standard of proof required from the prosecution at the close of
its case. In particular, it was submitted that the onus on the prosecution, at
that stage of the proceedings, was not to establish a mere prima facie case
as expounded in Haw Tua Tau v. PP [1981] 1 MLRA 32; [1981] 2 MLJ 49;
[1981] CLJ (Rep) 11, but to tender evidence which, if unrebutted, established
the case against the appellant beyond all reasonable doubt. (See PP v. Lim
Teong Seng & 2 Others [1946] 1 MLRA 57; [1946] 1 MLJ 108).

[23] On this basis, it was further submitted, in effect, that the Judge should
have subjected the credibility of the star witness for the prosecution, namely,
the security guard Ravi Shankar, to a more rigorous test than that envisaged
in Haw Tua Tau, and that had he done so, he would have found it to be
wanting, and, in consequence, would have ruled that there was no case to
answer and acquitted and discharged the appellant without calling for his
defence.

[24] Similarly, it was argued, in the alternative, that had the higher standard of
proof aforesaid, been applied to the testimony of the chemist, then the Judge
would, in all probability, have found that there was insufficient evidence to
prove that the subject matter of the charge, exceeded 200 grammes of cannabis
within the meaning of s 2 of the Act, as the quantity of herbal material he had
examined and analysed was less than 10% of the whole, and so, was not a
truly representative sample, especially since he had not mixed the whole of
the material, before extracting the sample.

[25] I shall now embark upon a consideration of the primary question of Law
which arises for decision. In doing so, the topics for discussion have been
arranged under sub-headings, some of which overlap, with the result that
some repetition will be unavoidable.

The Intermediate Problem Of The Standard Of Proof

[26] The primary question of Law which arises for decision in this appeal
concerns the standard of proof that is required from the prosecution, in
criminal trials before a Judge of the High Court, sitting alone, in order that the
Judge may rule that there is a case for the accused to answer. The answer to
this question depends upon the proper construction of the statutory formula
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 593

“which if unrebutted would warrant a conviction” appearing in s 180 of the

Criminal Procedure Code (‘the Code’) which provides:

When the case for the prosecution is concluded the Court, if it finds that no
case against the accused has been made 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 on his defence.

[27] The sections of the Code which govern the procedure at the close of
the case for the prosecution in the Subordinate Courts and in the Court
of a Judge sitting alone or with assessors are ss 173(f), 180 and 190 of the
Code, respectively, their wording is the same and their meaning cannot be
differentiated. (See PP v. Lim Teong Seng & 2 Ors [ibid] at 109 col. 1 para).
Consequently, the discussion which follows regarding the effect of s 180
would apply with equal force to the effect of ss 173(f) and 190.

[28] However, the statutory formula, as to the quantum of proof required

from the prosecution at the close of its case, in trials by jury in the High
Court, under s 214(2) of the Code, makes different provisions by reason of
the dichotomy in the functions of Judge and jury, questions of Law being for
the Judge whereas questions of fact are for the jury. (See, Karam Singh v. PP
[1967] 1 MLRA 416; [1967] 2 MLJ 25 FC, 30 Col. H per H T Ong CJ).

[29] On the other hand, in the case of trials before a Judge sitting alone, he is
decider of both facts and law.

[30] The contrast in the wording of the statutory formulae under ss 180 and
214(2) will be discussed under the appropriate sub-heading. Suffice it to say
at this stage, that s 214 provides:

214. When Court may direct a verdict of not guilty.

(1) When the case for the prosecution is concluded, the Court, if it considers
that there is no evidence that the accused committed the offence, shall
direct the jury to return a verdict of not guilty.

(2) If the Court considers that there is evidence that the accused committed
the offence the Court shall call on the accused to enter on his defence.

(3) The jury may return a verdict of not guilty either unanimously or by
a majority at any time after the conclusion of the evidence for the
prosecution if they consider the case to be one in which they could not
safely convict.

The Difference Between Establishing A Prima Facie Case And Establishing

A Case Beyond All Reasonable Doubt

[31] The expression “a prima facie case” is nowhere to be found in the Code,
and, as pointed out in Khoo Hi Chiang, suffers from the defect that it is not
self-explanatory; what is it that the case shows prima facie or at first sight?
 Arulpragasan Sandaraju
594 v. PP [1996] 1 MLRA

[32] Nevertheless, the expression “a prima facie case”, has been regularly
used in our Courts; often for brevity and convenience, to denote a case to
answer, or more particularly, a case “which if unrebutted would warrant a
conviction” within the meaning of s 173(f) or s 180 or s 190 of the Code, as
the case may be.

[33] However, there has been a difference of judicial opinion here as to what
constitutes “a prima facie case” and I had in Khoo Hi Chiang, (ibid at p 286 A
& B) when speaking for the Supreme Court, referred to some of these cases
to illustrate this point.

[34] Be that as it may, in my view, for the reasons which follow, it is wrong in
Law to equate a mere “prima facie case” with “a beyond all reasonable doubt
case” as does Munusamy v. PP [1986] 1 MLRA 292; [1987] 1 MLJ 492; [1987]
CLJ (Rep) 221.

[35] The starting point, for the discussion as to what is required to establish
a “prima facie case”, is the Australian case of May v. O’sullivan [1955] 92 CLR
654, where the full High Court (Dixon CJ, Webb, Fullagar, Kitto, Taylor JJ)
said inter alia, this (at pp 657 to 658):

When, at the close of the case for the prosecution, a submission is made that
there is “no case to answer”, the question to be decided is not whether on
the evidence as it stands the defendant ought to be convicted, but whether
on the evidence as it stands he could lawfully be convicted. This is really
a question of law... After the prosecution has adduced evidence sufficient
to support proof of the issue, the defendant may or may not call evidence.
Whether he does or not, the question to be decided in the end by the tribunal
is whether, on the whole of the evidence before it, it is satisfied beyond
reasonable doubt that the defendant is guilty. This is a question of fact...
A magistrate who has decided that there is a “case to answer” may quite
consistently, if no evidence is called for the defendant, refuse to convict
on the evidence for the prosecution. The prosecution may have made “a
prima facie case”, but it does not follow that in the absence of a “satisfactory
answer” the defendant should be convicted...

[36] The second case is Considine v. Lemmer [1971] SASR 39, where Bright J,
correctly paraphrasing May v. O’sullivan said this (at p 51):

I agree that a prima facie case, uncontradicted by credible evidence, does not
lead automatically to conviction. For the prima facie case may do not more
than tend to prove guilt: it may or may not, if unexplained, satisfy beyond
reasonable doubt. It may contain weaknesses which inspire doubt. To say
this is to do no more than paraphrase May v. O’sullivan.

[37] The third case is Zanetti v. Hill [1962] 18 CLR 433 at 442 where Kitto J
expounded the issue at hand, by stating:

that is to say, there is with respect to every element of the offence some
evidence which, if accepted, would either prove the element directly
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 595

or enable its existence to be inferred. That is a question to be carefully

distinguished from the question of fact for ultimate decision, namely
whether every element of the offence is established to the satisfaction of the
tribunal of fact beyond a reasonable doubt.

[38] In an article entitled The Insufficiency of Evidence to Raise a Case to Answer

[1981] 55 ALJ 842 (at p 845) Mr Justice Glass concisely but clearly expressed
the position thus:

... where the evidence of the prosecution witnesses exhibits internal conflict
and competing inferences are open, the Judge, in considering whether a case
to answer is made out, should assume that the jury will accept the evidence
and draw the inference favouring the Crown. He should disregard all the
evidence, (whether offered by the Crown witnesses in chief or extracted
from them in cross examination) which militates against the prosecution
case because the jury has authority to reject it.

[39] Having regard to the principles enunciated in the above authorities and
the article by Glass J, the following two examples will help to illustrate the
difference between applying “the prima facie case” test and “the beyond all
reasonable doubt” test to the prosecution’s evidence at the conclusion of its
case.

[40] Take a case where the prosecution’s evidence points to two likely
inferences, one consistent with guilt, the other with innocence. In such a
situation, if the standard of proof is that of a mere “prima facie case”, in other
words “a prima facie supposition that the accused may be guilty”, then the
trial ought to proceed and the defence would have to be called. (See, Karam
Singh v. PP (ibid, at p 30 Col 2 C & D, per H T Ong CJ).

[41] If, on the other hand, the standard of proof is “beyond all reasonable
doubt”, then in the situation just mentioned, the prosecution will have failed
to satisfy the test, and the accused would have to be acquitted and discharged
without his defence being called.

[42] Another example which helps to further illustrate the point that there
is a fundamental difference between applying a mere “prima facie” standard
of proof and the “beyond all reasonable doubt standard of proof”, at the
intermediate stage of the trial, would be where, at the conclusion of the
prosecution’s case, there is strong prosecution evidence but there remains
a reasonable tenable doubt. In such a situation, if the standard of proof is
a mere “prima facie case”, in other words, a mere prima facie supposition
that the accused may be guilty, then also the trial must proceed, and the
defence would have to be called. On the other hand, if the standard of proof
is “beyond all reasonable doubt”, then, in the situation just mentioned, the
prosecution will have failed to satisfy the test, and the accused would have to
be acquitted and discharged without his defence being called.
 Arulpragasan Sandaraju
596 v. PP [1996] 1 MLRA

[43] Furthermore, if the onus on the prosecution at the close of its case, is
to establish a mere “prima facie case”, the test to be applied is a minimal
evaluation of the prosecution’s evidence to ensure that it is not inherently
incredible (see Haw Tua Tau v. PP). Whereas, if the onus on the prosecution at
the close of its case, is to establish a case “beyond all reasonable doubt”, then
the test to be applied to the prosecution’s evidence is a maximum evaluation
of the prosecution’s evidence, which calls for “a more rigorous test of
credibility” (per Lord Diplock in Haw Tua Tau, ibid at p 54 G), in order to
answer the question: if there is no more evidence, has the prosecution proved
its case beyond all reasonable doubt? (see PP v. Fong Ah Tong & Anor [1940] 1
MLRH 641; [1940] 1 MLJ 240).

[44] In PP v. Balasubramaniam [1947] 1 MLRH 608; [1948] 1 MLJ 119,

Callow J rightly directed attention to the distinction between making out a
“prima facie case” and making out “a case beyond all reasonable doubt” as
follows:
The learned Counsel for the Crown said a prima facie case had been made
out. He said there is a case, although it may be answerable. I must go further
and consider whether if a prima facie case is shown, such element of doubt is
removed so as to sustain a conviction if no more evidence is adduced. The
onus is on the prosecution to prove the case and this burden never shifts.

[45] His Lordship then referred, with approval, to the following passage in
the judgment of Laville J in PP v. Lim Teong Seng & 2 Ors [1946] 1 MLRA 57;
[1946] 1 MLJ 108 at 109:
If therefore at the close of the prosecution he as a jury comes to the conclusion,
not that there is no evidence, but that the evidence produced is not strong
enough to warrant a conviction, and only evidence beyond all reasonable
doubt is of that nature, he is not by the spirit of English law entitled to say:
“I am doubtful of this evidence but let us see if it can be supplemented and
improved by what can be elicited from the defence.” The prosecution who
have to prove their case beyond all reasonable doubt have produced all the
evidence they have, and it is on this evidence the conviction if any must
rest, even if accused calls evidence. What the prosecution can elicit for its
view from them is either supplementary or redundant, or goes to lessen the
credibility of the defence evidence. It cannot be the basis of a conviction.
If therefore at the close of the prosecution the Court is of opinion that on
that evidence it cannot, as a jury, hold the allegations proved beyond all
reasonable doubt, there is nothing left for it to do but to acquit the accused.

[46] Clearly, therefore, there is a world of difference between applying the

test of a mere “prima facie case” and applying “the beyond all reasonable
doubt” test to the evidence led by the prosecution at the close of its case.

Jury Trial Principles In England In Bare Outline

[47] Very broadly stated, the jury trial principles in England to be distilled
from the cases and other sources may be stated thus:
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 597

The basic principle applicable at the conclusion of the case for the prosecution
is that a submission of no case to answer should be upheld when there is no
evidence upon which, if the evidence led by the prosecution were accepted,
a reasonable jury properly directed, could lawfully convict. This is purely a
question of law for the Judge and must carefully be distinguished from the
question of fact for ultimate decision by the jury, namely, whether every
element of the offence has been established beyond all reasonable doubt.

[48] The correct approach for the Court to adopt in a jury trial, in criminal
cases is to be found in R v. Galbraith 73 Cr App R 124 CA where Lane CJ
expounded this stating:

(1) If there is no evidence that the crime alleged has been committed by the
defendant there is no difficulty - the Judge will stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous
character, for example, because of inherent weakness or vagueness or
because it is inconsistent with other evidence:

(a) where the Judge concludes that the prosecution evidence, taken at
its highest, is such that a jury properly directed could not properly
convict on it, it is his duty, on a submission being made, to stop the
case;

(b) where however the prosecution evidence is such that its strength or
weakness depends on the view to be taken of a witness’s reliability,
or other matters which are generally speaking within the province
of the jury and where on one possible view of the facts there is
evidence on which the jury could properly come to the conclusion
that the defendant is guilty, then the Judge should allow the matter
to be tried by the jury.

[49] To my mind, it is not an unfair summary of the position in England,

to say that in a criminal trial before a Judge and jury, when a submission of
no case is made, the Judge has to determine the question whether, upon the
prosecution evidence, taken at its highest, a reasonable jury could properly
convict. For this purpose, the Judge presumes that the jury will accept the
evidence of the prosecution witnesses and, where there is more than one
inference, which may be drawn from the primary facts, the inference most
favourable to the prosecution will be drawn.

[50] The only exception to the rule that the Judge presumes that the jury will
accept the evidence of the prosecution witnesses being where their evidence
is so inherently incredible that no reasonable person could accept it as true.

[51] It follows, that where there is legally sufficient evidence to satisfy the
requirements of a case to answer, as explained above, the case must go on
and the question whether the evidence should be believed or rejected is a
matter for the jury who are triers of fact.
 Arulpragasan Sandaraju
598 v. PP [1996] 1 MLRA

The Sheet Anchor Of Lord Diplock’s Reasoning In Haw Tua Tau

[52] In Haw Tua Tau v. PP [1982] AC 136, Lord Diplock speaking for the
Judicial Committee of the Privy Council, in an appeal from Singapore had
occasion to consider and to discuss, the effect of the provisions of s 188(1) of
the Singapore Criminal Procedure Code, (equivalent to s 180 of the Code),
and which provided as follows:

188(1) 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 on his defence.

[53] Lord Diplock expressed the view that the proper attitude of mind that
the decider of fact ought to adopt towards the prosecution’s evidence at the
conclusion of the prosecution’s case, in a non-jury trial in Singapore (and this
would apply equally in Malaysia, the statutory formula “which if unrebutted,
would warrant a conviction” in s 180 of the Code, being the same as that in
s 188(1) of the Singapore Criminal Procedure Code), is most easily identified
by considering a criminal trial before a Judge and jury such as occurs in
England and occurred in Singapore until its final abolition in capital cases in
1969. (ibid at p 151).

[54] He next turned to the familiar functions of the Judge and jury in England
and went on to say (at p 151 B et seq):

Here the decision-making function is divided; questions of law are for the
Judge, questions of fact are for the jury. It is well-established that in a jury
trial at the conclusion of the prosecution’s case it is the Judge’s function to
decide for himself whether evidence has been adduced which, if it were to
be accepted by the jury as accurate, would establish each essential element
in any criminal offence is a question of law. If there is no evidence (or only,
evidence that is so inherently incredible that no reasonable person could
accept it as being true) to prove any one or more of those essential elements,
it is the Judge’s duty to direct an acquittal, for it is only upon evidence that
juries are entitled to convict; but, if there is some evidence, the Judge must
let the case go on...

In their Lordships’ view the same principle applies to criminal trials where
the combined roles of decider of law and decider of fact in a single Judge (or
two judges trying capital cases).

[55] It is manifestly clear that the sheet anchor of Lord Diplock’s reasoning
regarding the standard of proof required from the prosecution at the close
of its case in Singapore was his equation of jury trial principles in England
and in Singapore until their final abolition in capital cases in 1969 with those
applicable under s 188(1) of the Singapore Criminal Procedure Code. It was
as a result of this equation, that he concluded that the statutory formula
in s 188(1) was apt to describe a mere “prima facie case”. If this part of his
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 599

reasoning can be faulted, his conclusion on the intermediate problem of the

standard of proof required from the prosecution at the close of its case in a
non-jury trial in Singapore cannot, in justice, be regarded as unimpeachable.

Criticisms Of Haw Tua Tau

[56] With all respect, I must now upon a criticism of Haw Tua Tau in some
detail.

Why It Would Be Artificial To Apply The Haw Tua Tau Standard Of Proof
To A Non-Jury Trial

[57] The first criticism which may be levelled at Haw Tua Tau is this: it would
be highly artificial and pedantic to require a tribunal such as a Judge sitting
alone who decides both questions of law and fact to suspend judgment on,
say, for example, the obvious unreliability of the prosecution’s evidence and
confine himself to considering the hypothetical question whether there is
evidence on which a hypothetical jury might or could convict, even though
the Judge himself does not believe the evidence for the prosecution.

[58] To take the point further, if in such a situation the Judge over-rules a
submission of no case, saying that although he himself does not believe the
evidence for the prosecution, a hypothetical jury might accept the evidence
and so could or might convict. Then, upon the defence being called, Counsel
for the defence calls no evidence and, in his final address, submits that the
accused must be acquitted praying in aid the Judge’s finding that he did not
himself believe the evidence for the prosecution. In such a situation, the
Judge would have to acquit, thus putting himself in the invidious position of
having over-ruled the submission and then, soon afterwards, on precisely the
same evidence, upheld it.

[59] I have already mentioned the sharp contrast in language between the
statutory formulae under ss 180 and s 214(2) of the Code and its significance
when referring to the intermediate problem of the standard of proof required
from the prosecution at the conclusion of its case.

[60] It is obvious that s 214(2) is a statutory enunciation of what was always

the common law of England as propounded by Lord Diplock in Haw Tua Tau;
this is the test of a mere prima facie supposition that the accused may be guilty
which a trial Judge in a jury trial in England should apply in determining
whether there is a case to answer. This test can readily be applied in jury trials
in Malaya because the provisions of s 214(2) (reproduced above) recognise
the dichotomy in the functions of Judge and jury; while the Judge decides
all questions of law the consideration of the evidence adduced would be for
the jury and they alone would be entitled to estimate its weight and decide
upon its effect. In other words, questions about the legal sufficiency of the
evidence, when the case for the prosecution is concluded, are for the Judge,
 Arulpragasan Sandaraju
600 v. PP [1996] 1 MLRA

while questions about the quality and reliability of evidence, when the case
for the defence is concluded, are for the jury.

[61] However, the above principles which apply to jury trials at the
conclusion of the case for the prosecution should not apply to a trial in the
High Court before a Judge sitting alone, in Malaysia, which is governed by
the provisions of s 180 of the Code, (reproduced above) where the statutory
formula is “which if unrebutted would warrant a conviction” and when the
Judge is a Judge both of facts and law. I derive analogical support for this
in the following passage in Archbold on Criminal Pleading Evidence & Practice
- probably the most respected practitioners’ textbook on the subject in the
United Kingdom - (see the 1993 Edn - para 4-37 p 1/564) - which indicates
that even in England, jury trial principles should not apply where the tribunal
is a decider of law and fact:

In their summary jurisdiction magistrates are Judges both of facts and law.
It is therefore submitted that even where at the close of the prosecution case,
or later, there is some evidence which if accepted, would entitle a reasonable
tribunal to convict, they nevertheless have the same right as a jury to acquit
if they do not accept the evidence, whether because it is conflicting, or has
been contradicted or for any reason. It is submitted that the practice note
reported in [1962] 1 All ER 448 must be read in this light. In any event there
appears to be no authority as to the issue of practice directions in criminal
matters relating to questions of law as opposed to practice.

[62] The portions of Lord Parker’s Practice Note, reported in [1962] 1 All ER
488, so far as material to this part of the case, read as follows:

Without attempting to lay down any principle of law, we, think that as a
matter of practice justices should be guided by the following considerations.
A submission that there is no case to answer may properly be made and
upheld: (a) when there has been no evidence to prove an essential element
in the alleged offence; (b) when the evidence adduced by the prosecution
has been so discredited as a result of cross-examination or is so manifestly
unreliable that no reasonable tribunal could safely convict on it.

Apart from these two situations a tribunal should not in general be called
on to reach a decision as to conviction or acquittal until the whole of the
evidence which either side wishes to tender has been placed before it. If,
however, a submission is made that there is no case to answer, the decision
should depend not so much on whether the adjudicating tribunal (if
compelled to do so) would at that stage convict or acquit but on whether
the evidence is such that a reasonable tribunal might convict. If a reasonable
tribunal might convict on the evidence so far laid before it, there is a case
to answer.

[63] The Diplock test in Haw Tua Tau is no more than an amplification of
Lord Parker’s Practice Note and, therefore, it too is flatly contradicted by
Archbold.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 601

Haw Tua Tau Equates The Words “If Accepted” With The Words “If
Unrebutted” - Is That Right?

[64] The second criticism which may be levelled at Haw Tua Tau is this: Lord
Diplock in his judgment had treated the words “if unrebutted” in s 188(1)
of the Singapore Criminal Procedure Code (equivalent to our s 180) which
convey a negative concept as though they mean no more than “if it were to
be accepted as accurate” which convey a positive concept. In so holding,
he was greatly influenced by the principles applicable in a criminal trial
before a Judge and jury in England with which he must have been familiar
since his practice days though he was always better known as an eminent
constitutional lawyer. At the risk of some repetition, this is what he said, on
the point (at p 51 col 2 D):

Section 188(1) states the conditions precedent to the right and duty of the
Judge of trial to call on the accused to enter on his defence...

The crucial words of s 188(1) are the words “if unrebutted” which makes the
question that the Court has to ask itself a purely hypothetical one...

The proper attitude of mind that the decider of fact ought to adopt towards
the prosecution’s evidence at the conclusion of the prosecution’s case is
most easily identified by considering a criminal trial before a Judge and jury,
such as occurs England and occurred in Singapore until its final abolition
in capital cases in 1969. Here the decision-making function is divided;
questions of law are for the Judge, questions of fact are for the jury. It is
well-established that in a jury trial at the conclusion of the prosecution’s
case it is the Judge’s function to decide for himself whether evidence has
been adduced which, if it were to be accepted by the jury as accurate,
would establish each essential element in the alleged offence: for what are
the essential elements in any criminal offence is a question of law. If there
is no evidence (or only, evidence that is so inherently incredible that no
reasonable person could accept it as being true) to prove any one or more of
those essential elements, it is the Judge’s duty to direct an acquittal, for it is
only upon evidence that juries are entitled to convict; but, if there is some
evidence, the Judge must let the case go on.

[65] And, later still (at p 52 col 1, F,) he said this:

In their Lordships’ view the same principle applies to criminal trials where
the combined roles of decider of law and decider of fact are vested in a single
Judge...

[66] Turning to the question of construction, the words “if unrebutted”

in s 180 of the Code (reproduced above) mean “if uncontradicted” or “if
unexplained” or “if unrefuted” by counter proof or opposing testimony to
be adduced by the defence and convey, as I have said, a negative concept.
Rebuttal evidence, embraces all evidence which tends to contradict, explain,
refute or discredit, and, generally speaking, all evidence which tends to
counteract or overcome, the evidence adduced by the prosecution up to the
 Arulpragasan Sandaraju
602 v. PP [1996] 1 MLRA

close of its case. In the context of s 180 of the Code, “rebuttal evidence” can
only have reference to the evidence to be adduced by the defence (if any). The
word “if”, in s 180 imports a condition precedent or imposes a contingency
on the fulfilment of which the legal consequences therein, laid down, to wit,
“would warrant a conviction” as explained in the next topic to be discussed,
must follow.
[67] In practical terms, the effect of the words in s 180 of the Code, to wit,
“if unrebutted would warrant a conviction” is that the Judge “is bound at
the conclusion of the case for the prosecution to decide definitely which,
if either of two possible but incompatible versions of the facts have been
proved”. (Per Spencer-Wilkinson J in Mohamed Kassim v. R [1956] 1 MLRH
286; [1956] 1 MLJ 212, 213). And, as the same learned Judge put it in
Mohamed Yatim bin Abu Bakar [1949] 1 MLRH 439; [1950] 1 MLJ 57, at 59:
“In this country, at the close of the case for the prosecution, the Court will
not call for his defence, unless the evidence of the prosecution witnesses is,
in the first instance, believed.” In other words, the Judge must, at that stage,
decide whether the prosecution witnesses are telling the truth. This is not a
hypothetical question of law but an actual and real question of fact.
[68] On the other hand, the words of the hypothetical question in Haw Tua
Tau: “whether evidence has been adduced by the prosecution which if it were
accepted as accurate, would establish each element in the alleged offence?”
forbid the trial Judge in non-jury case at the conclusion of the case for the
prosecution to determine whether the prosecution witnesses are telling the
truth. In other words, the question, at that stage, for the determination of
the trial Judge is: whether or not there is some evidence (not inherently
improbable) - which taken at its full face value - support on a “minimum
basis” the allegation that the accused committed the offence. It follows that
the words “which if he were to accept it as accurate” has reference only to the
evidence adduced by the prosecution and convey, as I have said, a positive
concept. In carrying out this task, the trial Judge ignores questions as to
the quality and reliability of the evidence adduced by the prosecution and
instead directs his attention to its legal sufficiency: is there evidence on which
a hypothetical jury could at the end of the whole trial convict?
[69] In my view, therefore, the expression “if unrebutted” is not synonymous
with the expression “if he were to accept it as accurate”; indeed, the two
expressions are poles apart.
[70] Here then is where Lord Diplock erred in Haw Tua Tau. He treated the
words “if unrebutted” as meaning no more than “if he were to accept it as
accurate”, thus drastically rewriting s 180, and it was this error which caused
him to apply the much lower standard of proof, to wit, a mere “prima facie
case”, to the evidence for the prosecution at the close of its case. Furthermore,
the effect of his express reliance on English jury trial principles, meant that
he was treating the words “would warrant a conviction” as meaning no more
than “could or might warrant a conviction” - thus, again re-writing s 180.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 603

Interpretation Of The Words “Would Warrant A Conviction”

[71] Whilst still on the second criticism of Haw Tua Tau, the group of words
in s 180 which next call for consideration are the four words “would warrant
a conviction”, which immediately follow the words “if unrebutted”.

[72] According to the American Words and Phrases (Permanent Edition)

published by West Publishing Co, Vol 46, p 365, the word “would” means
necessarily “will” and expresses an element of certainty far greater than
that expressed by ‘could’. US Cas Co v. Kelly, 50 SE2 238, 240, 78 Ga App
221. Black’s Law Dictionary, 6th Ed. defines the word “would” as “A word
sometimes expressing what might be expected or preferred or desired. Often
interchangeable with the word ’should’ but not with ‘could’.” Nor, for that
matter, can the word “would” be interchangeable with “might”. (See, the
second and third sentences of the last para of Lord Parker’s Practice Direction
quoted at p 34 ante.)

[73] As for the word “‘warrant”, in the context of s 180, I respectfully agree
with Laville J, when he said in PP v. Fong Ah Tong & Cheong Chi Shen [1940]
1 MLRH 641; [1940] 1 MLJ 240: “Warrant in my view is a strong word and
excludes any doubts.”

The Statutory Formulae In Sections 180 And 214(2) Of The Code When
Compared And Contrasted Point To Different Standards Of Proof At The
Intermediate Stage

[74] In trials in the High Court, before a Judge sitting alone s 180 of the Code
(reproduced above) provides that the statutory formula applicable at the
close of the case for the prosecution is “which if unrebutted would warrant
a conviction”.

[75] However, in trials by jury in the High Court, s 214(2) of the Code
(reproduced above) makes very different provisions namely, “there is no
evidence that the accused committed the offence”, by reason of the dichotomy
in the functions of Judge and jury; that is to say, questions of Law are for the
Judge, while questions of fact are for the jury.

[76] The contrasting language of the statutory formulae in s 180 and in s

214(2) suggests that the legislature intended to provide for different standards
of proof required from the prosecution at the close of its case, depending
on whether the trial is a non-jury trial or a jury trial, the general rule of
construction being that a deliberate change of expression denotes a change of
meaning. (See Ricket v. Metropolitan Railway Co [1867] LR 2 HL 175, per Lord
Westbury at 207). This rule has much to be said for it, for one may well ask,
why when the earlier statutory formula under s 180 of the Code is available
and has been used, the draftsman should change the wording thereof when
drafting s 214(2), if he did not intend the different statutory formula to bear
a different meaning.
 Arulpragasan Sandaraju
604 v. PP [1996] 1 MLRA

[77] In my view, the statutory formula in s 180 is apt to describe the “beyond
all reasonable doubt” standard of proof whilst the statutory formula in s
214(2) is apt to describe a lesser standard of proof, that is to say, “a mere
prima facie case” or in other words, a mere prima facie supposition that the
accused may be guilty.

[78] Forty six years ago Laville J in Fong Ah Tong & Anor v. PP (ibid) had
occasion to make a comparison - in my view quite correctly - between the
different standards of proof required from the prosecution at the close of its
case in a trial by a Judge with the aid of assessors under s 190 of the Code
(where the statutory formula is identical to trials before a Judge sitting alone
under the aid of assessors under s 180 of the Code) and in a trial before a
Judge and jury under s 214 of the Code. This is how his Lordship put it:

But by s 190 it would appear that there is an onus cast on the presiding Judge
at a trial with the aid of assessors to decide at the end of the prosecution
evidence, not as in jury cases whether there is any evidence at all of the
guilt of the accused, to go to the jury, but a greater onus namely whether
the prosecution evidence, if no evidence is given at all by accused would
justify a conviction. ‘Warrant’ in my view is a strong word and excludes any
doubts by the Court.

The evidence which would warrant a conviction, if unrebutted, is evidence

that satisfies the Court beyond all reasonable doubt that the accused is guilty
of the offence charged or some lesser offence.

The criterion therefore on which the Court must work is, if there is no more
evidence has the prosecution proved its case beyond all reasonable doubt.

[79] I wish to add that, it is obvious that the statutory formula in s 214(2) is
apt to describe the prima facie test enunciated by Lord Diplock in Haw Tua
Tau, since the words “there is no evidence that the accused committed the
offence” could be expanded to include a situation “where the only evidence
is so inherently incredible that no reasonable person could accept it as being
true”. This is because the latter situation is virtually the same as “no evidence
that the accused committed the offence”.

[80] Similarly, the words of the applicable statutory formula, in s 214(3) of

the Code (quoted above, and in pari materia with s 199(3) of the old Singapore
Criminal Procedure Code and its successors) “... could not safely convict...”
are also apt to describe a mere prima facie case as expounded by Lord Diplock
in Haw Tua Tau. In R v. Koh Soon Poh [1935] 1 MLRH 595; [1935] 1 MLJ
120, 122 Terrell J delivering the judgment of the Court of Criminal Appeal
in Singapore having first reproduced s 199 of the old Singapore Criminal
Procedure Code, said this with regard to sub-section 3 thereof (at p 122 col
2, the last para):
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 605

In our opinion, the sub-section merely declares what was always the
common law of England, namely, that after the jury have heard all the
evidence for the prosecution they can stop the case if they do not think it
would be safe to convict.

[81] It is noteworthy that s 214(3) of the Code provides another way, quite
distinct and separate from the defence making a no case to answer submission
under s 214(2) of the Code, in which the trial can be terminated at the close of
the case for the prosecution or indeed, at any time thereafter.

[82] By way of general observation, I can see that the legislature in its wisdom
did not impose on the prosecution at the close of its case, in a jury trial, “the
beyond all reasonable doubt standard” because to do so would mean, that
the Judge would have to intrude into the province of the jury by weighing the
evidence and deciding on the effect of the evidence. Moreover, if the Judge
were to apply “the beyond all reasonable doubt standard” and rule that there
is a case to answer, “it would be enabling the Judge in such a case to say that
the jury must in law find the prisoner guilty and so make the Judge decide
the case and not the jury, which is not the common law.” (Per Viscount
Sankey in Woolmington v. DPP [1935] AC 462, 480). Clearly, in the absence
of express statutory provisions, these considerations are wholly inapplicable
to a criminal trial before a Judge in a non-jury case, who is decider both of
facts and law.

[83] This brings me to the third criticism which may be levelled at Haw Tua Tau
and it is this: Lord Diplock failed to recognise, the difference in the wording
of the statutory formula in s 188(1) of the Singapore Criminal Procedure
Code (equivalent to our s 180 of the Code) which applied exclusively to trials
in the High Court in non-jury cases and the corresponding statutory formula
in s 199(2) of the old Singapore Criminal Procedure Code and its successors
(in pari materia with our s 214(2) of the Code) which applied exclusively to
trials by jury in the High Court in Singapore until their final abolition in
capital cases in 1969 and the principles underlying these differences. These
principles relate to the functions of a Judge (or Judges in capital cases) sitting
alone as compared to the dichotomy in the functions of a Judge sitting with
a jury; in the case of the former, he is decider of both facts and law whereas
in the case of the latter, questions of law are for the Judge and questions of
fact are for the jury.

[84] For these further reasons, also, the statutory formula in s 180 is apt to
describe the “beyond all reasonable doubt’ standard.

Would Applying The Khoo Hi Chiang Standard Of Proof Be Unfair To

The Accused?

[85] The fourth criticism which may be levelled at Haw Tua Tau is this:
 Arulpragasan Sandaraju
606 v. PP [1996] 1 MLRA

[86] In supporting his view as regards the standard of proof required from the
prosecution at the close of its case, in a non-jury trial in Singapore, contrary
to that of Wee Chong Jin CJ in Ong Kiang Kek, Lord Diplock referred to two
things:

For reasons that are inherent in the adversarial character of criminal trials
under the common law system, it does not place upon the Court a positive
obligation to make up its mind at that stage of the proceedings whether the
evidence adduced by the prosecution has by then already satisfied it beyond
reasonable doubt that the accused is guilty. Indeed, it would run counter to
the concept of what is a fair trial under that system to require the Court to
do so. (see p 51 col 2 D to E)

[87] What Lord Diplock is implying here is that if the effect of s 188(1) is to
impose on the prosecution the burden of proving its case beyond a reasonable
doubt before the accused can be called upon to enter upon his defence, then
the law would be unfair, for the accused would be left with the impression
that the Judge has made up his mind, before hearing his defence.

[88] With respect to Lord Diplock, the “beyond all reasonable doubt”
standard of proof if applied to the prosecution’s evidence at the close of its
case, subjects it to a more rigorous test of credibility, when compared to the
Haw Tua Tau standard of proof of a mere “prima facie case”, leaving it open
to the accused to introduce evidence which could raise a reasonable doubt
either as to the truth of the prosecution’s case or as to his guilt.

[89] Moreover, on a further ground also, applying “the beyond all reasonable
doubt” standard of proof to the prosecution’s evidence instead of the Haw
Tua Tau standard of proof of a mere “prima facie case”, at the close of its case,
is more favourable to the accused. Many accused persons are incriminated
by their own evidence or that of their witnesses, so that what might initially
appear as a weak case may gain strength from the evidence for the defence.

[90] In point of fact, however, contrary to what Lord Diplock thought, the
“beyond all reasonable doubt’ standard of proof, if applied to the prosecution’s
evidence, at the close of its case, is predominantly favourable to the accused
and can be supported as a matter of logic. Take, for example, a case where at
the close of the case for the prosecution, the evidence predominantly favours
the prosecution but yet there exists a reasonable doubt, then, if the standard
of proof is the usual criminal standard of proof beyond reasonable doubt,
there is failure on the part of the prosecution to meet its obligation and to
continue the trial would not be justified. Yet, in the same situation, if the
Haw Tua Tau standard of proof of a mere “prima facie” case were applied to
the prosecution’s evidence, the defence would have to be called, in which
case, should the accused testify or call witnesses, he might thereby be further
incriminated and may well be convicted.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 607

[91] One of the main objects of a submission of no case is to protect an

accused against a prosecutor who has failed to make out a case and hopes
to repair deficiencies in his own case by cross-examination of the accused
and witnesses called on his behalf. Therefore, the greater the burden on
the prosecution to establish a case the greater the protection offered to the
accused.

[92] It follows, that the Khoo Hi Chiang standard of proof far from causing
prejudice and unfairness to the accused, operates to his advantage.

[93] There is a further ground for disputing the proposition that the
philosophical foundation underpinning the reasoning of Lord Diplock in
Haw Tua Tau was to avoid prejudice and unfairness to the accused.

[94] It should be emphasised that the Haw Tua Tau principles are really but an
amplification of Lord Parker’s Practice Note reported in [1962] 1 All ER 448
(the direction therein produced above). The question what led Lord Parker
to issue his Practice Note, therefore, merits consideration. It is answered, for
us by the first two sentences of the Practice Note itself which read as follows:

Those of us who sit in the Divisional Court have the distinct impression that
justices today are being persuaded all too often to uphold a submission of
no case. In the result, this Court has had on many occasions to send the case
back to the justices for the hearing to be continued with inevitable delay and
increased expenditure.

[95] Clearly, therefore, the philosophical foundation underpinning Lord

Parker’s Practice Note had nothing to do with a desire to avoid prejudice and
unfairness to the accused; on the contrary, his Lordship was concerned about
too many premature acquittals, and it was this concern which led to the issue
of the Practice Note.

[96] It could be plausibly argued that the same philosophical foundation

underpins the reasoning of Lord Diplock in Haw Tua Tau, though the does
not say so.

Remaining Criticism Of Haw Tua Tau

[97] Next, in supporting his view as regards the standard of proof required
from the prosecution at the close of its case, in a non-jury trial in Singapore,
which was contrary to the view of Wee Chong Jin CJ in Ong Kiang Kek, Lord
Diplock added a further point which, with respect, also appears untenable.
Having explained why he considered that there was a parallel between a
criminal trial before a Judge sitting alone in Singapore and a trial before a
Judge and jury such as occurs in England, he then attempted to demonstrate
how absurd it would be in a trial before a Judge and jury to apply the “beyond
all reasonable doubt” standard of proof to the prosecution’s evidence at the
close of its case by stressing that if this were done and a submission of no
 Arulpragasan Sandaraju
608 v. PP [1996] 1 MLRA

case were over-ruled, the jury would have to retire, consult together again
and bring in what in effect would be a conditional verdict of guilty before
the accused has had the opportunity to put before them any evidence in his
defence. (at p 52 col I D).

[98] Lord Diplock’s remarks here, are of the o type. No one would dispute
that it would be not only impractical, but, indeed contrary to law to apply
the beyond reasonable doubt standard of proof to the prosecution’s evidence
at the close of the case for the prosecution, in a jurytrial for the reasons I
have already stated. But, what Lord Diplock appears to have overlooked
was that the provisions of s 199(2) of the old Criminal Procedure Code of
Singapore and its successors (until their repeal in 1969, when capital cases
before a Judge and jury were finally abolished) and s 214(2) of the Code in
this country, made it quite clear that the statutory formula applicable to the
prosecution’s evidence, at the close of the prosecution’s case in jury trials
was, “if there is no evidence that the accused committed the offence,” which
are strong words and, for the reasons stated, are apt to describe the Haw Tua
Tau standard of proof of a mere prima facie case.

[99] In practice, a submission of no case to answer is always made to the

Judge in the absence of the jury (Williams v. R [1982] WAR 277). If the
submission fails, the jury knows nothing about the submission since they are
sent out of Court while it is advanced and no mention is made about what
occurred in their absence. So, the situation envisaged by Lord Diplock of the
jury having to retire, consult together again and bring in what in effect would
be a conditional verdict of guilty before the accused has had the opportunity
to put before them any evidence in his defence could never arise.

[100] What we are concerned with here, as was the case in Haw Tua Tau and
Ong Kiang Kek, is a non-jury trial, for which the statutory formula applicable
to the prosecution’s evidence at the close of its case, is “which if unrebutted
would warrant a conviction” where the Judge is trier of fact and law, the
effect of which has already been discussed. This is a test which is easy for the
Judge sitting alone to apply for, in the words of Spencer-Wilkinson J, in PP v.
Annuar bin Ali [1946] 1 MLRH 337; [1948] 1 MLJ 38, (at p 39 col 1 para 2):

.... When a Judge is sitting alone, it is easy for him to reach this finding
[referring to the finding required to be made by the Judge sitting alone, at
the close of the case for the prosecution under s 180 of the Code, because he
is the sole judge of law and fact, and he is the person who has to be satisfied
beyond a reasonable doubt of the accused’s guilt and must know at that
stage whether or not he has believed the witnesses;...

Summing Up the Criticisms Haw Tua Tau

[101] Summing up this part of the case, I would say, that Lord Diplock never
gave detailed consideration to the question of construction of the actual
words of s 188(1) of the Singapore Criminal Procedure Code (equivalent to
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 609

s 180 of our Code) and instead was undully swayed by jury trial principles
in England. This may not be surprising since the question of construction
was never argued on both sides before the Board. At p 146, E, F, ibid, Lord
Diplock said:

... The only question argued before this Board was the contention,
common to all three appellants, that the amendments made to the Criminal
Procedure Code by Act No 10 of 1976 were inconsistent with art 9(1) of the
Constitution of Singapore that “No person shall be deprived of his life or
personal liberty save in accordance with law” and, being inconsistent, were
rendered void by art 4.

[102] As a result he treated the words “if unrebutted” in s 188(1) as meaning

no more than “if accepted’. Furthermore, although he did not expressly say
that he was treating the words in s 188(1) “which if unrebutted would warrant
a conviction” as meaning no more than “which, if unrebutted, could or might
warrant a conviction,” that was clearly the effect of his express reliance on
the jury trial principles in England. And, it is this which led him to hold the
words of the relevant statutory formula were apt to describe a mere “prima
facie case”.

Observations On Tan Boon Kean v. PP- Identifying The ratio decidendi In

Khoo Hi Chiang

[103] I now, turn to consider the case of Tan Boon Kean v. PP [1995] 2 MLRA
28; [1995] 3 MLJ 514; [1995] 4 CLJ 456; [1995] 3 AMR 3007, where a three
member panel (Mohd Azmi bin Kamaruddin and Wan Yahya bin Pawan Teh
FCJJ and Zakaria JCA) of the Federal Court (the successor of the Supreme
Court) purported to over-rule the unanimous decision of a five member panel
(Abdul Hamid Omar LP, Mohd Jemuri Serjan CJ (Borneo), Edgar Joseph Jr
SCJ, Mohd Eusoff Chin SCJ and Mohamed Dzaiddin Hj. Abdullah SCJ) of
the Supreme Court on the point concerning the standard of proof required
from the prosecution at the close of its case, under s 180 of the Code.

[104] The first observation I should like to make regarding this part of
the case, is that is quite clear from the anti-penultimate paragraph of the
judgment of the Court in Tan Boon Kean, (at p 536 E, F) that the Deputy Public
Prosecutor Mr Stanley Augustin had conceded that the appellant there ought
to have been convicted of the offence of possession of heroin rather than
the offence of trafficking in heroin. The Court, quite rightly, following the
usual practice when such a concession is made, substituted a conviction for
the lesser offence of possession of heroin. I mention these matters because if
this concession came at the commencement of the hearing of the appeal and
Counsel for the appellant had been content to accept the concession, then
there was no need at all for the hearing of the appeal to have proceeded and
whatever pronouncement the Court made on the standard of proof required
from the prosecution at the close of its case would be obiter.
 Arulpragasan Sandaraju
610 v. PP [1996] 1 MLRA

[105] Next, the Federal Court in Tan Boon Kean v. PP [1995] 2 MLRA 28;
[1995] 3 MLJ 514; [1995] 4 CLJ 456; [1995] 3 AMR 3007 correctly recognised
that it was bound by the ratio in Khoo Hi Chiang since in the latter case the
Court was comprised by a panel of five Judges who were unanimous.

[106] But more to the point, in attempting to identify the ratio decedendi, the
Court correctly began by referring to the following passage in the judgment
in Khoo Hi Chiang at p 290.

Consequently, the duty of the Court, at the close of the case for the
prosecution, is to undertake, not a minimal evaluation of the evidence
tendered by the prosecution in order to determine whether or not the
prosecution evidence is inherently incredible - the Haw Tua Tau test - but,
a maximum evaluation of such evidence, to determine whether or not
the prosecution has established the charge against the accused beyond all
reasonable doubt.

[107] The Court then proceeded to say:

As far as we are able to gather, the interpretation of the word ‘case’ referred
to in s 180 only appears in Khoo Hi Chiang from pp 285-286 as an obiter
dicta whilst the Court.. was dealing with the principal issue of maximum
evaluation of the evidence...

[108] The Court then concluded:

... it seems clear that the only ratio in the Supreme Court judgment is on the
requirement of maximum evaluation of the evidence at the close of the case
for the prosecution. We are of the view that that is the crux of the principle
laid down in Khoo Hi Chiang...

[109] And in the next paragraph the Court added:

Apart from the question of evaluation of the evidence for the purpose of s
180, we are unable to accept any suggestion by Counsel that Khoo Hi Chiang
has made any other binding pronouncement which can be said to have
replaced the prima facie case test imposed by s 180. As stated earlier on, there
is only a passing observation on the apparent difference in judicial opinion as
to what constitutes a prima facie case in s 180. There is no serious discussion
on the interpretation of s 180 as to why the ‘case’ which the prosecution is
required to establish must be changed from ‘a prima facie case’ to ‘a beyond
reasonable doubt case’. As is normal in any obiter dicta, the Supreme Court
has deliberately and correctly declined to give any new interpretation to the
crucial words ‘if unrebutted’ and the word ‘would’ in both sections of the
Code, which have consistently over the years been interpreted by our Courts
as no more than a prima facie requirement notwithstanding any distinction
between jury and nonjury trials.

[110] And a little further down:

 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 611

... The first part of the sentence on the need for maximum evaluation of
the evidence is clearly the ratio of the judgment, whilst the second limb
which is founded one purpose or object of the maximum evaluation has
been incorporated as obiter on the basis of mere observation.

[111] It is trite learning that the interpreter has nearly as much say as the
speaker so far as the meaning of words is concerned but, with great respect,
the Court in Tan Boon Kean misunderstood the ratio in Khoo Hi Chiang.

[112] A perusal of the main judgment of the Court in Khoo Hi Chiang, which
ran into 20 pages (pp 273-293) of the report in the Malayan Law Journal
[1994] 1 MLJ 265, will show that the principal points of law argued before
the Supreme Court were two-fold: namely, the standard of proof required
from the prosecution to establish a case to answer having regard to s 180 of
the Code, and the competency of the chemist to testify regarding the results
of his examination and analysis of the drug the subject matter of the charge.
At p 277 B to C of the report the Court in Khoo Hi Chiang said this:

Before us the convictions were attacked on a number of grounds.

The principle points of law argued were two-fold: firstly, that: in ruling
that the appellants had a case to answer, the Judge had relied on the test
laid down by Lord Diplock in Haw Tua Tau which requires only a minimal
evaluation of the evidence at the close of the case for the prosecution to
ensure that it is not inherently incredible. It was said he was wrong in so
doing as the onus on the prosecution at the close of its case was not to
establish a prima facie case, but to tender evidence, which if unrebutted,
would warrant a conviction. (See s 180 of the Code).

[113] Then followed a lengthy discussion of the point of law concerning the
standard of proof it being the point that was most fully argued - which took
up 14 of the 20 pages of the judgment (p p 277 - 291), and included a survey
of numerous Malaysian cases going back some 50 years, and ending with the
following four paras (none of which are referred to in Tan Boon Kean), which
make it obvious what the ratio decidendi of the case was:

Looking back, what all this lengthy discussion comes to is whether we can
treat the words ‘which if unrebutted would warrant a conviction’ appearing
in ss 180, 190 and 173(f) of the Code as meaning no more than ‘which if
unrebutted could or might warrant a conviction’.

With all due respect to Lord Diplock - and we say this humbly, even without
reference to the wealth of longstanding decisions by Judges in this country
and in Singapore to which we have referred, and only after careful thought
- that we are unable to treat the words ‘which if unrebutted would warrant
a conviction’ as meaning no more than ‘which if unrebutted could or might
warrant a conviction’. To do so would amount to making an unauthorised
amendment to a statutory provision which touches the liberty of the subject.
With the support of the long-standing decisions to which we have referred,
our view would be a fortiori.
 Arulpragasan Sandaraju
612 v. PP [1996] 1 MLRA

It follows, therefore, that in this country, at the close of the prosecution’s

case, the question for decision by the trial Judge, (except when he is sitting
with a jury), is not just ‘a’ hypothetical question of law but an actual and
quite different question of fact illustrated by the numerous Malaysian and
Singaporean cases decided before our Courts were infected by the Haw Tua
Tau virus.

With considerable regret therefore, we must decline to follow Haw Tua Tau
and its progeny Ragunathan v. PP [1981] 1 MLRA 209; [1982] 1 MLJ 139;
[1982] CLJ (Rep) 63, Munusamy v. PP [1986] 1 MLRA 292; [1987] 1 MLJ
492; [1987] CLJ (Rep) 221, and Junaidi bin Abdullah v. PP [1993] 1 MLRA
452; [1993] 3 MLJ 217; [1993] 4 CLJ 201; [1993] 2 AMR 2209, as to the
effect of the relevant statutory provisions of the Code to which we have
referred and discussed.

[114] Clearly, therefore, Khoo Hi Chiang decided, after full argument on the
point and after much thought and dialectic to discussing a controversial
problem of law, that the standard of proof required from the prosecution
at the close of its case, in non-jury trial in Malaysia is, having regard to the
relevant statutory formulae, the usual criminal standard of proof, to wit, the
beyond all reasonable doubt standard of proof, which called for a maximum
evaluation of the evidence tendered by the prosecution, that is to say, “a more
rigorous test of credibility” was to be applied to the prosecution’s evidence,
instead of the much lower Haw Tua Tau standard of proof of a mere prima
facie case which called for a minimal evaluation of the evidence tendered by
the prosecution, thereby over-ruling Haw Tua Tau, on that point.

[115] I might as well add that the ratio decidendi in Khoo Hi Chiang was
correctly identified by McMullin Commissioner in Yeo Tse Soon & Anor v. PP
[1994] 1 MLRA 479; [1995] 3 MLJ 255; [1995] 2 CLJ 179, speaking for the
Court of Appeal of Brunei, when he said:

The decision in Khoo is thus evidently something of a watershed in the

Malaysian case law on this topic and is clearly intended as a call to order,
drawing back the Malaysian Courts from a temporary wandering in the
diversionary path of the English Judge and jury procedure.

Although the decisions of the Board were formerly binding on the Malaysian
and other common law Courts in this area, they are no longer so in Malaysia.
Moreover, the learned Supreme Court Justice was also able to depart from
Haw Tua Tau in this instance since, as he correctly said, this observation of
Lord Diplock did not form part of the ratio decidendi in that case.

[116] Since the Court in Tan Boon Kean had quite correctly acknowledged
that it was bound by the ratio in Khoo Hi Chiang, but went on, with respect,
to misunderstand the ratio in Khoo Hi Chiang, on this ground alone, Tan Boon
Kean should not be followed on the point regarding the standard of proof
required from the prosecution at the end of its case in a non-jury trial.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 613

[117] To take this part of the case further, if I may say so, and again, with
respect, the Court in Tan Boon Kean had also misunderstood the purpose of
the “minimum evaluation” and “maximum evaluation” tests to be applied to
the evidence led by the prosecution at the close of its case as expounded in
Khoo Hi Chiang and it is this topic that I shall next discuss.

The Minimum Evaluation Test

[118] In Haw Tua Tau, Lord Diplock made it clear that the duty of a Judge
in a non-jury trial, as much as a jury trial, when considering the question
whether the accused has a case to answer, is to act on the presumption that all
the prosecution’s evidence of the primary facts, is true, unless it is inherently
so incredible that no reasonable person would accept it as being true. In other
words, the one exception to the principle that the prosecution case must be
taken at its highest is: if the only prosecution evidence “is so inherently
incredible that no reasonable person could accept it as being true”, in which
case, the accused should be acquitted without his defence being called.

[119] It follows, therefore, that the Haw Tua Tau standard of proof when
applied to the prosecution’s evidence at the close of its case, requires the
Judge to undertake a minimal evaluation of such evidence, for the purpose of
determining whether or not it is inherently incredible. This is what is meant
by a minimal evaluation of the prosecution’s evidence at the close of its case. I
thought that the Supreme Court had made this point clear in Khoo Hi Chiang.

The Maximum Evaluation Test

[120] Conversely, by “the maximum evaluation” test referred to in Khoo

Hi Chiang, is meant, what Lord Diplock described in the final para of
his judgment in Haw Tua Tau (ibid, at p 54G) as “a more rigorous test of
credibility”, that is to say, proof beyond all reasonable doubt “which requires
the Judge to decide definitely, at the close of the case for the prosecution,
which, if either, of two possible but incompatible versions of the facts has
been proved”. (per Spencer-Wilkinson J in Mohammed Kassim v. R [1956] 1
MLRH 286; [1956] 1 MLJ 212.) And, “if the prosecution fails to produce
evidence which is believed and which if unrebutted would make out every
such ingredient then the case must be dismissed without the accused being
called upon to make his defence. If he is called upon to make his defence then
the Court must consider the evidence as a whole and, if satisfied that every
ingredient of the offence has been proved, then convict”. (per Thomson CJ in
PP v. Lee Ee Teong [1953] 1 MLRH 608; [1953] 1 MLJ 244).

[121] If, upon the defence being called, the accused elects to remain silent
and calls no evidence then, the Court must convict. In this I am supported by
the case of PP v. Man bin Abas 1 MC 160, where Howes J said:
 Arulpragasan Sandaraju
614 v. PP [1996] 1 MLRA

... the Magistrate called upon the accused to enter upon his defence, and
the accused through his Counsel then announced that he was not putting
up any defence.

The Magistrate... acquitted the accused on both charges.

The action of the Magistrate appears inconsistent. By calling on the accused

to enter upon his defence, the Magistrate showed that he believed the
evidence for the prosecution, and yet he acquitted the accused.

I therefore hold that this decision was against the weight of evidence; and
for this reason.... I order that the accused be retried on the same charge by
another Magistrate.

[122] Similarly, in PP v. Lee Yee Heng [1937] 1 MLRH 589; [1938] 1 MLJ
117b Lt 118, Cussen J said:

At that stage, when the Magistrate called upon the accused to enter upon
his defence, the record shows that thereupon Counsel for the accused stated
that the accused did not wish to give evidence.

In view of the defence being called upon the Magistrate must then, under s
173(h) of the Criminal Procedure Code, have been of the opinion ‘that there
were grounds for presuming that the accused had committed the offence
charged.

When no defence was offered it might have been expected that the learned
Magistrate would there and then have convicted the accused.

[123] I have already said, relying on PP v. Lim Teong Seng & 2 Others (ibid at
p 19 col 1 para 4 per Laville J) that the procedure at the close of the case for
the prosecution in the subordinate Courts, in the Court of a Judge sitting
alone, or with assessors, is governed by ss 173(f), 180 and 190 of the Code,
respectively. The wording of the statutory formula in all these three sections is
the same and their meaning cannot be differentiated. Consequently, I derive
analogical support from s 173(h) of the Code, commented on by Cusson J in
the above quoted passage of his judgment in PP v. Lee Yee Heng, for the view
expressed in Khoo Hi Chiang on the effect of s 180.

[124] It follows, that the purpose of the maximum evaluation of the

prosecution’s evidence at the close of its case, it to enable the Court to
determine whether a case beyond all reasonable doubt has been made out
against the accused. I thought that the Supreme Court had also made this
point clear in Khoo Hi Chiang.

How Does The Prosecution “Make Out A Case“?

[125] Similarly, and again with respect, the Court in Tan Boon Kean had also
misunderstood the meaning of the expressions “the case for the prosecution”
and “no case against the accused” has been made out appearing in s 180
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 615

of the Code. “The prosecution makes out a case against the accused” said
Lord Diplock in Haw Tua Tau (ibid at p 51 col 2 F lines 3 et seq), I would,
interpolate, with respect, quite correctly, “by adducing evidence of primary
facts. It is such evidence that the words “if unrebutted’ refer to.” The
expression “to make out a case”, standing on its own, tells us nothing about
what standard of proof the trial Judge has to apply to the evidence adduced
by the prosecution in determining whether the accused has a case to answer,
and it is, therefore, in that sense ambiguous.
[126] In my view, the expression “to make out a case” must mean “to make
out a case” having regard to the degree of proof demanded by the law, with
regard to the particular issue which arises for decision. This test is based on
the test laid down in the judgment of Brett J in Bridges v. North Lond Rly [1874]
LR 7 HL 213 at p 233. In that case, Brett J approved the following way of
putting the matter: the test to be applied by the Judge in order to determine
whether there is sufficient evidence in favour of the proponent of an issue is
for him to inquire whether there is evidence which, if uncontradicted, would
justify men of ordinary reason and fairness in affirming the proposition
which the proponent is bound to maintain having regard to the degree of
proof demanded by the law with regard to the particular issue.
[127] Here, we have an express statutory provision, namely, s 180 of the
Code, which provides the answer to the question what is the standard of
proof demanded by the law from the prosecution “to make out a case”.
That answer lies in the effect of the crucial words of s 180, which say “if
unrebutted”, not, be noted, “if it were to be accepted as true”, as stipulated
by Lord Diplock in Haw Tua Tau or “if believed” as stipulated in s 163 of the
old Sarawak Criminal Procedure Code (Cap 58) for which see PP v. Omar
Lopez [1966] 1 MLRH 149; [1967] 2 MLJ 281, read together with the four
words which immediately follow them: “would warrant a conviction”, not,
be noted, “could warrant a conviction” or “might warrant a conviction”.
[128] The words “which if unrebutted would warrant a conviction” have
been judicially considered in numerous Malaysian cases, and I had, in Khoo
Hi Chiang, attempted a survey of a long line of these cases going back some
50 years. It will suffice, if I mention the decision of the Federation Court of
Appeal in Soo Sing & Ors v. PP [1951] 1 MLRA 46; [1951] 1 MLJ 143, which
was thought to have laid to rest any possible doubt there might have been
regarding the correct interpretation of the quoted words. What the Court said
there was this:
Section 173 of the Criminal Procedure Code lays down the procedure to
be followed by Magistrates in summary trials. The “evidence hereinbefore
referred to” in para (f) of that section [in pari materia with s 180 of the Code
] has reference only to the evidence given for the prosecution. That being
so, it is the duty of a Magistrate at the close of the case for the prosecution
to determine whether or not the evidence tendered on behalf of the
prosecution, if unrebutted, has established the case against the prisoner
beyond all reasonable doubt.”
 Arulpragasan Sandaraju
616 v. PP [1996] 1 MLRA

[129] Indeed, in V Daniel v. PP [1956] 1 MLRH 398; [1956] 1 MLJ 186;

Buhagiar J, had occasion to remark: “There is no doubt that Soo Sing’s case
put away any doubt that there may have been as to the correct interpretation
of s 173(f) of the Criminal Procedure Code...”

[130] Subsequent to Daniel’s case, there has been a consistent current of

judicial opinion in this country applying the interpretation of the words
“which if unrebutted would warrant a conviction” given in Soo Sing, and
many of these cases are referred to in Khoo Hi Chiang.

[131] It follows, that “to make out a case” to answer, the prosecution must
have adduced evidence of primary facts, which, if unrebutted, has established
the case against the accused beyond all reasonable doubt. (See Soo Sing & Ors
v. PP (ibid)).

[132] In deciding whether the prosecution has succeeded in this task, the
Court must inevitably direct its attention to the offence charged and decide,
at the intermediate stage, whether the prosecution has established the charge
against the accused beyond all reasonable doubt. I am supported in this by
the following passage in the judgment of Laville J in PP v. Fong Ah Tong and
Cheong Chi Shen (ibid):

The evidence which would warrant a conviction, if unrebutted, is evidence

that satisfies the Court beyond all reasonable doubt that the accused is
guilty of the offence charged or some lesser offence. The criterion therefore
on which the Court must work is, if there is no more evidence has the
prosecution proved its case beyond all reasonable doubt.

[133] And this what our Court of Appeal said in Hoh Keh Peng v. PP [1947] 1
MLRA 61; [1948] 1 MLJ 3b at p 4, col. 2:

There is a positive duty upon the Judge under s 180 of the Criminal
Procedure Code to acquit the accused at the close of the prosecution if he is
not prepared then and there to convict without hearing more. If an accused
person is called upon for his defence he may be able to turn the balance in
his favour; but he should never be called upon for his defence in a case of
doubt so that he may convict himself by supplementing a weak prosecution
case.

[134] It follows that Tan Boon Kean placed undue stress on the word “case”
in s 180 of the Code, while ignoring the point that in order to determine
whether the prosecution has established a case to answer, the trial Judge
must inevitably have to direct his attention to the charge and decide whether
the evidence led by the prosecution has established every ingredient of the
charge beyond all reasonable.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 617

The Singapore Court Of Appeal Decision In Ng Theng Shuang v. PP

[135] I now turn to consider the judgment of the Singapore Court of Appeal
in Ng Theng Shuang v. PP [1995] 2 SLR 36, which prefers the opinion of Lord
Diplock in Haw Tua Tau v. PP [1981] 1 MLRA 32; [1981] 2 MLJ 49; [1981]
CLJ (Rep) 11 to that expressed in Khoo Hi Chiang v. PP [1993] 1 MLRA 701;
[1994] 1 MLJ 265; [1994] 2 CLJ 151; [1994] 1 AMR 323, on the question
of the standard of proof required from the prosecution at the end of the
presentation of its case in a non-jury trial.

[136] In Ng Theng Shuang, the Court of Appeal in refusing to follow Khoo Hi

Chiang, relied heavily on the assumption that the Malaysian Supreme Court
laid emphasis on the words in s 180 of the Criminal Procedure Code (Cap 6)
“would warrant a conviction” thus ignoring the crucial words “if unrebutted”
in s 189(1), and as a result, arrived at the conclusion that only proof beyond
reasonable doubt would warrant a conviction.

[137] With all respect, if I may say so, the words “if unrebutted” in s 180 of the
Code, especially when taken together with the four words which immediately
follow, to wit, “would warrant a conviction”, go not to undermine but to
fortify the conclusion arrived at in Khoo Hi Chiang, for the reasons appearing
in the section of this judgment bearing the sub-heading: “Haw Tua Tau
Equates the Words ‘If Unrebutted’ With The Words ‘If Accepted’ - Is That Right?”

The Brunei Court Of Appeal Decision In Yeo Tse Soon v. PP

[138] In the Brunei case of Yeo Tse Soon & Anor v. PP [1994] 1 MLRA 479;
[1995] 3 MLJ 255; [1995] 2 CLJ 179, the Court in preferring Haw Tua Tau
to Khoo Hi Chiang, was greatly influenced by the consideration that “to make
out a case” is not the same thing as to prove it beyond reasonable doubt. (see
ibid at pp 266 I to 267 A). With this, I regret, I am unable to agree for the
reasons already stated when discussing Tan Boon Kean.

[139] Next, the Court having rightly recognised that the words of the statute
nowhere referred to “aprima facie case” then went on to construe the words
of the statute as being apt to describe “a prima facie case” (at p 266 D). With
this, I regret I am unable to agree for the reasons stated when discussing Haw
Tua Tau; in particular, my construction of the statutory formula “which if
unrebutted would warrant a conviction” in s 180 of the Code, as emphasised
by the contrast it displays when compared with the corresponding statutory
formula “no evidence that the accused committed the offence” in s 214(2) of
the Code, reinforced by the statutory formula “could not safely convict” in s
214(3) of the Code, both these last two mentioned provisions being concerned
with jury trials, the first governing the position at the close of the case for the
prosecution and the second at any time after the case for the prosecution.
 Arulpragasan Sandaraju
618 v. PP [1996] 1 MLRA

[140] It was on the basis of the construction that the words of the statute were
apt to describe a “prima facie case” that the Court went on to hold as follows
(at p 266 D to F):

... Once the prosecution has adduced evidence which reveals all the elements
of the offence and which is not so completely discredited that no reasonable
tribunal of fact could believe it, a case has been made out which if unrebutted
would warrant a conviction. It is immaterial that the Judge or Magistrate
may have doubts as to its credibility: the time is not appropriate for him to
decide whether it is credible or not, subject only to the reservation that he
must be satisfied that it could be believed which is a question not of fact but
of law. That being so, there is no justification for distinguishing between the
procedure to be followed in a trial by jury and a trial by Judge alone.

[141] With respect, the above passage, more particularly, the portion
emphasised, is flatly contradicted, by the comment appearing in the passage
in Archbold (reproduced above), according to which, even in England, at the
close of the case for the prosecution, a Judge of fact and law, has the right
to acquit, if he does not accept the evidence for the prosecution “whether
because it is conflicting or has been contradicted or for any other reason.”
Archbold goes on to make the pertinent submission that the Practice Note
by Lord Parker reported in [1962] All ER 448, (of which Haw Tua Tau is no
more than an amplication) must be read in the light of the above comment.

[142] It follows, therefore, that in a criminal trial held in Malaysia, before a

Judge sitting alone who is Judge of fact and law, at the close of the case for
the prosecution, the test to be applied in determining whether there is a case
to answer, having regard to the statutory formula in s 180 of the Code, is not
whether the prosecution evidence “could be believed” - which is a question
of law, but, whether or not the prosecution evidence “is believed” - which
is a question of fact. This is because it is not permissible to treat the words
of the statutory formula “which if unrebutted would warrant a conviction”
as meaning no more than “which if unrebutted could or might warrant a
conviction”. With respect, for the reasons stated, the Diplock test in Haw Tua
Tau does amount to rewriting the statutory formula in this manner, and so
does the test in Yeo Tse Soon.

[143] The other matters relied on by the Court for preferring the Haw Tua Tau
test, have, I believe, been adequately dealt with elsewhere in this judgment.

Conclusion On The Standard Of Proof Point

[144] To sum up, therefore, so far as the standard of proof, on the prosecution,
at the close of its case is concerned, I would uphold Khoo Hi Chiang and with
the utmost respect, decline to follow Haw Tua Tau, Ng Theng Shuang, Yeo
Tse Soon and over-rule Ragunathan v. PP [1982] 1 MLJ 138, Munusamy v. PP
[1986] 1 MLRA 292; [1987] 1 MLJ 492; [1987] CLJ (Rep) 221, Junaidi bin
Abdullah v. PP [1993] 1 MLRA 452; [1993] 3 MLJ 217; [1993] 4 CLJ 201;
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 619

[1993] 2 AMR 2209 and Tan Boon Kean v. PP [1995] 2 MLRA 28; [1995] 3
MLJ 514; [1995] 4 CLJ 456; [1995] 3 AMR 3007.

Looking Back

[145] Looking back, with all respect, if not for the appearance of Haw Tua Tau,
Malaysian law would never have followed the principles enunciated by Lord
Diplock in that case and thus taken a wrong turning. Khoo Hi Chiang had set
Malaysian law back on the correct path. Unfortunately, an attempt was made
in Tan Boon Kean to resurrect Haw Tua Tau. Fortunately, the present appeal
has afforded this Court the opportunity to make a final pronouncement on
this vexed question.

The Merits Of This Appeal

[146] I must now direct attention to the merits of this Appeal.

[147] In evaluating the testimony of the security guard, Ravi Shankar, the
Judge rightly regarded as material the fact that this witness and the appellant
were strangers. His Lordship then went on to conclude that such being the
case, he could think of no reason why this witness should do such a vicious
thing as to invent a story implicating the appellant in a capital offence. True
it is that there was no animosity between the appellant and this witness, but
if there was no reason on the one hand for a false accusation, there was
equally no reason, on the other, for the appellant to run the unnecessary
risk of making the highly incriminating disclosure alleged to a total stranger,
whom he knew was a security guard, then to leave the brown bag with the
cannabis in it virtually in the latter’s charge while he went for a leisurely
breakfast, well knowing that it would be the security guard’s duty to report
the matter to the authorities. The audacity of the alleged disclosure is lacking
alike in cunning and contrivance. It is difficult indeed to associate simplicity
so absolute with a course so perilous: the risks of detection were very great
and the consequences of detection calamitous. Yet nowhere in his judgment
did the Judge even mention these formidable factors which told in favour of
the appellant. The Judge had thus failed to view the relevant facts from all
angles and the appellant was undoubtedly prejudiced thereby.

[148] I am thus reminded of what H T Ong FJ (as he then was) said in

Mahinder Singh v. PP [1967] 1 MLJ 126, 128 para 3:

There are certain other material facts too which could not be
consistent with guilt. There admittedly was no animosity between
the parties and the complainant himself could think of no reason
why the appellant should have made the unprovoked attack on
him. If there was no reason, on the one hand, for a false accusation,
there was equally no reason, on the other, for the appellant to attack
his inoffensive neighbour. The seriousness of the injury and the
 Arulpragasan Sandaraju
620 v. PP [1996] 1 MLRA

kind of weapon used should rather point to a vicious enemy and

consequently, to a third party who had vanished as silently as he had
appeared on the scene.

[149] I must add, lest I be accused of an oversight that I have not overlooked
the fact that there was also the evidence about the recovery of the appellant’s
Bank Nasional savings book, from the brown bag. It will be recalled that the
appellant’s story was that his bag was not the brown bag but the yellow bag.
The driver Kabir contradicted this. The appellant may well have been lying
about this. On the other hand, so may Kabir who was an obvious suspect, at
least, the police thought so, for otherwise they would not have arrested and
detained him for 14 days.

[150] But, assuming that the appellant had lied when he denied ownership
of the brown bag, that does not necessarily conclude the case against him,
for the question remains: was the recovery of the rolls of cannabis and the
Bank Nasional savings book from the brown bag, only consistent with the
appellant’s guilt? What if the rolls of cannabis had been planted there by
someone else? There was ample time and opportunity for this for the brown
bag lay unattended in the pondok and later in the driver’s cabin for quite a
while. There was no suggestion that either the brown bag or the compartment
in the driver’s cabin from which it was recovered was locked.

[151] According to Insp Ismail bin Dan, the police which consisted of five
men, had proceeded to the factory in two vehicles, Insp Ismail in his own car
accompanied by Det./Cpl Amir while Insp Wan Rashid, Det. Murad and
Det. Saad, travelled in a police van.

[152] On arrival at the factory, the police party did not proceed straightway to
the lorry; instead, Insp Ismail accompanied by Insp Wan Rashid, proceeded
to the office near the factory to seek the permission of its manager to conduct
a search of the lorry but before doing so, Inspector Ismail had instructed his
three men above-named to keep the lorry and those on it under observation.
However, none of his three men were called to say that they had in fact carried
out that instruction and, if so, what was the result of their observation. It was
only after making that detour at the office that the police party approached
the lorry. By which time, whoever the culprit was, the appellant or Kabir,
would have had early warning of an imminent police strike, for how could
they have missed noticing the arrival of the police van.

[153] There was no suggestion that the behaviour of the appellant was in
anyway abnormal at or about the time of his arrest.

[154] This was a case where there were at least three persons on the scene,
namely, the appellant, the security guard Ravi Shankar and the driver Kabir.
Of the trio, the appellant was the youngest and the most vulnerable, being a
lad of just 18 years, while Ravi Shankar and Kabir, were mature men, aged
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 621

23 and 38 years, respectively. And, although Ravi Shankar and the appellant
were perfect strangers, the former did know Kabir.

[155] Clearly, the Judge adopted an oversimplistic and Nelsonian approach

to the case for the prosecution, in that he failed to take into account and/or
to give proper weight to and/or to draw proper inferences from every fact
which told in favour of the appellant, and thus, failed to review the evidence
from all angles, with the result that a miscarriage of justice may well have
occurred.

[156] In these circumstances, the circumstantial evidence did not exclusively

and inevitably connect the appellant to the cannabis, the subject matter of the
charge and so the proverbial cap did not exclusively fit the appellant.

Summing Up

[157] At the close of the case for the prosecution, it was manifestly clear
that the star witness for the prosecution was the security guard Ravi Shankar
and his story about the incriminating disclosure made by the appellant
was improbable in the extreme, for the reasons stated and, quite frankly,
unacceptable. Once this flaw in the testimony of Ravi Shankar is accepted as
being of primary importance, the entire prosecution case must lose its sting.
To quote H.T. Ong FJ (as he then was) in Muniandy & Ors v. PP [1966] 1
MLRA 495; [1966] 1 MLJ 257: “the fact that this witness was unshaken in
cross-examination was not per se an all sufficient acid test of credibility; the
inherent probability of a fact in issue must be the prime consideration.”

[158] If, as I find, the evidence derived from the prosecution case itself was
enough to suggest a reasonable possibility of a “plant”, then neither the
presumption of possession under s 37(d) nor that of trafficking under s 37(da)
of the Act, could have operated against the appellant. Applying the “beyond
all reasonable doubt test” to the evidence adduced by the prosecution, at the
close of its case, it would have been wholly unsafe to convict the appellant
of a capital offence, assuming he had elected to remain silent and to call no
evidence.

[159] To conclude, the misdirection in law by the Judge, in applying the wrong
test when calling for the defence, may well have occasioned a miscarriage
of justice, having regard to the unsatisfactory nature of the prosecution’s
evidence. He should, therefore, have ruled at the close of the case for the
prosecution, that the evidence tendered by the prosecution was not strong
enough to establish the case against the appellant beyond all reasonable
doubt, that the appellant therefore had no case to answer, and acquitted and
discharged him without calling for his defence.

[160] Alternatively, if the presumptions were correctly invoked, the Judge

ought to have held that the explanation of the appellant was both reasonable
 Arulpragasan Sandaraju
622 v. PP [1996] 1 MLRA

and probable and was sufficient to have created a reasonable doubt on the
issue of possession, custody or control, of the rolls of cannabis, with the result
that the presumptions were rebutted.

[161] Lest I be accused of an oversight, in arriving at the above conclusions,

I have kept in the forefront of my mind the principle enunciated by the Privy
Council 84 years ago in Khoo Sit Hoe & Ors v. Lim Thean Tong [1912] AC 323:

Where upon an issue depending upon oral evidence there is plainly perjury
on the one side or the other, a Court of Appeal ought to be greatly influenced
by the opinion of the trial Judge, who has seen and examined the witnesses,
except where he has failed to observe inconsistencies or take account of
material circumstances or probabilities.

[162] And, in the words of Lord Thankerton in Watt Or Thomas v. Thomas

[1947] AC 488:

It is obvious that the value and importance of having seen and heard
the witnesses will vary according to the class of case, and, it may be, the
individual case in question.

[163] And again, in the words of Lord Thankerton in Watt Or Thomas v.

Thomas, I am satisfied, that the trial Judge “has not taken proper advantage
of his having seen and heard the witnesses.”

[164] Furthermore, I consider that the present case falls fairly and squarely
within the following principles enunciated by the Supreme Court in Gooi Loo
Seng v. PP [1993] 1 MLRA 227; [1993] 2 MLJ 137; [1993] 3 CLJ 1; [1993] 2
AMR 1135 at 142.

Clearly, therefore, the trial Judge, was bound to, but did not view the
whole of the evidence objectively and from all angles, with the result that
the appellant had lost the chance which was fairly open to him of being
acquitted. On this point, we consider that the non-direction amounts to a
misdirection, for, in the words of Pickford J in R v. Bundy (5 Cr App R 270):

the trial was not satisfactory, and the case was not put to the jury in a way
to ensure their due appreciation of the value of the evidence.

We must treat the failure of a trial Judge sitting alone, to direct himself
correctly in the same way as a failure to direct a jury correctly. In these
circumstances, a miscarriage of justice may well have occurred.

[165] For the sake of completeness, I must add that it was a specific ground
of appeal that the record of appeal provided disclosed material omissions.

[166] The principle that litigants as well as the appellate Court are entitled
to complete and accurate copies of the appeal record is of such fundamental
importance and so well known that it hardly needs emphasis.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 623

[167] A perusal of the record of appeal provided does indeed show that it is
riddled with omissions, both in the notes of evidence, as well as in the notes
of argument, due I gather, to the illegible handwriting of the Judge, who is
no longer in service.

[168] Speaking for myself, I am unable to confidently say, that the appellant
had not been prejudiced thereby, since the affected portions of the record
relating to the evidence, might have contained material favourable to him to
which we have been denied access.Bearing in mind that this Court has only
the printed record to go by, it is, I think, impossible to rule out prejudice to
the appellant who had been convicted of a capital offence.

[169] In my view, therefore, there was substance in the complaint that the
record of appeal suffered from material omissions, and hearing in mind the
unsatisfactory nature of the prosecution’s evidence, I would, on this further
ground also, allow the appeal.

[170] In these circumstances, it is unnecessary for us to pronounce on

the other question of law which related to the sufficiency of the chemist’s
evidence.

Postscript

[171] Since writing the above judgment I have had the advantage of reading
the judgment in draft of Azmi FCJ wherein he has taken an opposite view
to that I have taken on the question of standard of proof resting on the
prosecution at the close of its case.

[172] The first point in his judgment to which I should like to respond, is his
conclusion that Lord Diplock’s observations on the standard of proof resting
on the prosecution at the close of its case are ratio and not obiter.

[173] As Lord Diplock himself pointed out in Haw Tua Tau (see ibid at p
146 E and F), the sole question for decision before the Board was whether
the amendments to the Singapore Criminal Procedure Code, introduced
by the Criminal Procedure Code (Amendment) Act 1976, which withdrew
from accused persons the privilege which they enjoyed of making unsworn
statements of fact without subjecting themselves to cross-examination were
inconsistent with art 9(1) of the Constitution of Singapore that: “No person
shall be deprived of his life or personal liberty save in accordance with law”,
and being inconsistent, were rendered void by art 4. (See [1982] AC 136 at p
146 E and F). More particularly, the only rule alleged to be the fundamental
rule of natural justice, against which the Act of 1976 which introduced
the new procedure, was said to offend, was the so-called privilege against
selfincrimination expressed in the Latin maxim nemo debet se ipsum prodere.
(See ibid at p 148 C). The Privy Council rejected this submission saying:
“Their Lordships have no doubt at all that the amendments to the Criminal
 Arulpragasan Sandaraju
624 v. PP [1996] 1 MLRA

Procedure Code by the Act of 1976 are consistent with the Constitution of
Singapore and are valid”. (See ibid at p 155 F).

[174] It is true, that in the course of his judgment, Lord Diplock did consider
and discuss the duty of the Judge, sitting alone, in deciding whether or not
to call for the defence. However, the statutory provisions relating thereto, ie
s 188(1) of the Singapore Criminal Procedure Code, did not form part of the
amendments made by the Act of 1976, and were not therefore necessary for
the determination of the constitutional question hereinbefore mentioned.

[175] The starting point is to define the expression “ratio decidendi”. According
to Cross, in his work Precedent in English Law, 4th Edn p 72, the description
of what a ratio is, is this:

The ratio decidendi of a case is any rule of law expressly or impliedly treated
by the Judge as a necessary step in reaching his conclusion having regard
to the line of reasoning adopted by him, or a necessary part of his direction
to the jury.

[176] The above definition had commended itself to the Court in Beamish
v. Beamish [1861] 9 HLC 274 at 338; Attorney-General v. Dean and Cannons of
Windsor [1860] 8 HLC 369 at 392; and Jacobs v. London County Council [1950]
AC 361 at 369. Cross said as much in his work at p 75 when he noted:

It remains to consider some of the judicial statements which support our

description of the ratio decidendi of a case as any rule of law expressly or
impliedly treated by the Judge as a necessary step in reaching his conclusion,
or a necessary part of his direction to a jury. It is evident from the terms
of Lord Campbell’s speech in Beamish v. Beamish that by ratio decidendi he
meant ‘the rule of law which your Lordships laid down as the ground of
your judgment’. In Attorney-General v. Dean and Canons of Windsor, the same
Judge spoke of ‘the rule propounded and acted upon in giving judgment.
It is also clear from the terms of Lord Simonds’s speech in Jacobs v. London
County Council that he was thinking of the ratio decidendi in terms of ‘a reason
given by a Judge for his decision.‘

[177] I consider that Cross’ description of what constitutes ratio is a most

helpful guide and I would adopt it for the purposes of the present appeal.
Going by that definition, unnecessary rulings make no precedents and it is
the Judge not the parties, who decides what is a necessary ruling, that is
to say, the true rule of law in the case. The fact, therefore, that Counsel in
Haw Tua Tau, had raised the question of “the standard of proof” point as
part of their contention that the amendments to the Code introduced by the
Criminal Procedure Code (Amendment) Act 1976, which they enjoyed of
making unsworn statements of fact without subjecting themselves to cross
examination, and so violated art 9(1) of the Constitution of Singapore, even
if true, is not of decisive importance in determining the ratio decidendi.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 625

[178] What, however, is of decisive importance is that Lord Doplock did

not treat his ruling on the burden of proof point as a necessary step in his
conclusion that the amendments to the Criminal Procedure Code aforesaid
were consistent with the Constitution of Singapore. (see Cross at p 75).

[179] Here is the precious little which Lord Diplock said on the effect of
the trials Judges having applied to the prosecution’s evidence, “the beyond
reasonable doubt” standard of proof:

Finally their Lordships would mention briefly, lest it be thought that they
had overlooked it, the suggestion that at the trial of Haw Tua Tau the Judges
may have taken literally those delphic passages in the judgment of the Court
of Criminal Appeal in Ong Kiang Kek v. Public Prosecutor to which their
Lordships have had occasion to refer. If this be so the only effect can be
that the Judges applied to the prosecution’s evidence a more regorious test
of credibility than they need have done before deciding to call on Haw Tua
Tau to give evidence. The error, if there was one - and there is nothing in the
Judges’ reasons for judgment to indicate what was the standard that they did
apply - can only have been in favour of the accused.

[180] In other words, Lord Diplock was applying his ruling on the standard
of proof point, not to the constitutional question but to the merits of the
appeal only, and in effect, saying that the misdirection in regard thereto,
being in favour of the accused, could have occasioned no miscarriage of
justice. It is interesting to note that Counsel for the Public Prosecutor, Mr
Stuart Mckinnon QC, did say at the outset of his submission (see [1982] AC
136, at p 144C): “Whether Ong Kiang Kek v. PP [1970] 1 MLRH 273; [1970]
2 MLJ 283 was rightly or wrongly decided is immaterial.”

[181] This brings me to may second point. In his book Precedent in Law,
Mr Laurence Goldstein has said (at p 180): “A ruling which is a ratio has
indeed to be sufficient for the purpose of settling a point of law put in issue
by the parties’ arguments; but that is subject to the point being, in the above
stated sense, a point on which a decision is necessary for justification of the
decision in the case.” This implies that to qualify as ratio a ruling must be
on a disputed point of law. The correctness or otherwise of Ong Kiang Kek
was never put in issue by the parties since Counsel on both sides stood on
common ground in contending that it had been wrongly decided. On this
further ground, also, the observations by Lord Diplock on the effect of s
188(1) of the Criminal Procedure Code; in particular, the standard of proof
resting on the prosecution at the close of its case, should be regarded as obiter.

[182] Thirdly, the distinguished Professor of Law, Tan Sri Ahmad Ibrahim,
in an article entitled Haw Tua Tau v. PP - Duty of Court at End of Prosecution
Case - Must We Follow the Privy Council? (see [1981] 1 JMCL 223) opined that
Lord Diplock’s observations on the standard of proof point were obiter and
should be rejected.
 Arulpragasan Sandaraju
626 v. PP [1996] 1 MLRA

[183] On a further ground, also, it is significant that in Haw Tua Tau, both
Counsel for the defence and the public prosecutor had contended that Ong
Kiang Kek was wrongly decided. As a result, the Privy Council did not have
the advantage of hearing arguments in support of Ong Kiang Kek. In other
words, so far as this point was concerned, it was not really argued on both
sides.

[184] In such a situation, even Lord Diplocks’s views on the burden of proof
point are accorded the status of ratio, their force is significantly undermined.
I am supported in this by what Lord Goddard said in Nicholas v. Penny [1950]
2 All ER 91 when sitting in the Divisional Court: “We can... always differ
from a case on the ground that it has not been argued on both sides.”

[185] In any event, if contrary to my primary view, even if Lord Diplock’s

observations on the standard of proof resting on the prosecution at the close
of its case, are treated as ratio, in my respectful view, we should not follow
them because his reasoning is open to the criticisms I have referred to earlier.

[186] Next, Azmi FCJ has pointed out that when sitting as a Judge of the
High Court, Penang, exercising appellate jurisdiction, I had myself, in Pavone
v. PP [1985] 2 MLRH 558; [1984] 1 MLJ 77 followed Haw Tua Tau, but I had
explained (at p 79 col 1) that I did so because I considered myself bound by
the decision of the Federal Court in Ragunathan v. PP [1981] 1 MLRA 209;
[1982] 1 MLJ 139; [1982] CLJ (Rep) 63 which followed Haw Tua Tau.

[187] Azmi FCJ has also pointed out that in Khoo Hi Chiang there was
unnecessary reliance on Ong Kiang Kek. With respect, a perusal of the
judgment in Khoo Hi Chiang will show that this is not so.

[188] Finally, the judgment of Azmi FCJ concentrates on a criticism of Khoo

Hi Chiang (summarised at pp 9 and 10) but, with respect, has left largely
untouched the detailed reasoning of this judgment on the crucial question
of the interpretation of s 180 of the Code. As a result, he has placed undue
stress on matters which are peripheral, thereby brushing aside the explicit
provisions of s 180 of the Code and their effect.

The Result

[189] In all the circumstances, I would allow the appeal, quash the conviction,
set aside the sentence of death and acquit and discharge the appellant.

Eusoff Chin CJ (Majority):

[190] I have studied the grounds of judgment written by both my learned

brothers Tan Sri Mohd Azmi FCJ and Tan Sri Edgar Joseph Jr FCJ. I agree
with and fully support the judgment written by Tan Sri Edgar Joseph Jr FCJ,
and its reasonings.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 627

[191] The crux of the arguments before us is centred on the interpretation of

s 180 of the Criminal Procedure Code which states:
180. Procedure after conclusion of case for prosecution

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 on his defence.

[192] The burden is on the prosecution to prove every ingredient which

constitutes the offence with which the accused is charged. When, at the close
of the case for the prosecution, every ingredient is proved, then there is a case
for the accused to answer.

[193] When the case for the prosecution is concluded it is the duty of the
Court to scrutinise and evaluate the evidence and to decide whether or not
there is a case for the accused to answer. If there is no case to answer, the
Court will acquit and discharge the accused person. If there is a case to
answer, then the Court will call in the accused to enter on his defence. When
calling the accused to enter on his defence, three alternatives are open to the
accused by which he can rebut the case for the prosecution. These must be
explained to the accused, and they are: (i) he can give evidence on oath from
the witness box and be subject to cross-examination, or (ii) he can give an
unsworn statement from the dock, or (iii) he can remain silent. Whatever
alternative he elects, he is at liberty to call his witness or witnesses to testify
on his behalf.

[194] Assuming that the accused person elects to remain silent and does not
wish to call any witness or produce any document for his defence then he
will have failed to rebut the evidence adduced by the prosecution and the
Court must be prepared, there and then, to convict the accused person of the
offence charged. This is the requirement of s 180 of the Criminal Procedure
Code.

[195] The question of major importance before the Court is: What is the
standard of proof required of the prosecution at the close of its case having
regard to the provisions of s 180 of the Criminal Procedure Code. Is it proof
beyond reasonable doubt, or is it a mere prima facie supposition that the
accused person may be guilty of the offence charged.

[196] It is trite law that the onus is on the prosecution throughout the case in
any criminal trial to prove the charge against the accused beyond reasonable
doubt. In my view, the same standard of proof applies at the intermediate
stage of the trial, ie at the close of the prosecution. My interpretation of
s 180 of the Criminal Procedure Code leads to the same conclusion as
appears in the judgment of Tan Sri Edgar Joseph Jr, that is, the standard
of proof required on the prosecution at all stages of the hearing is one of
beyond reasonable doubt.
 Arulpragasan Sandaraju
628 v. PP [1996] 1 MLRA

[197] I therefore agree that the appeal should be allowed, the conviction
quashed, and the sentence of death be set aside. The accused is acquitted and
discharged.

Lamin Mohd Yunus PCA (Majority):

[198] I have had the opportunity of reading the draft judgments of my brother
Judges Mohd Azmi FCJ and Edgar Joseph Jr FCJ.

[199] I do not propose to get into an involved discussion on the standard

of proof required in our criminal law or on the distinction between the
“prima facie case” and “beyond reasonable doubt case” because it has been
exhaustively undertaken by them with astounding efficacy. However I wish
to say a few words on them before I make my preference for either of the two
judgments. The expression “prima facie case” as we all know is not found in
our law but it has been regularly used perhaps, as my brother Judge, Edgar
Joseph Jr FCJ says for “brevity and convenience”. I agree but I think it was
imported in the early days by those learned in the English criminal law. What
does “prima facie” mean? It simply means “at first sight” or “on the face of
it“: Zowitt’s Dictionary of English Law (2nd. Edn p 1422). So the words “prima
facie case” would suggest that the case when viewed on the face of it. I am
not quite sure what that means. But Gordon-Smith Ag. JA in PP v. Chin Yoke
[1939] 1 MLRH 103; [1940] 1 MLJ 47 @ 48 said:
In Mozley and Whiteley’s Law Dictionary (5th Edn) it states:

A litigating party is said to have a prima facie case when the evidence in his
favour is sufficiently strong for his opponent to be called on to answer it. A
prima facie case, then, is one which is established by sufficient evidence, and
can be overthrown only by rebutting evidence adduced by the other side.

This follows very closely the actual wording of the sections....

(The word “sections” refers to ss 173(f), 180 and 190 CPC.)

[200] By that the learned Judge appeared to have equated it with our law in
that if at the end of the case for the prosecution the Court “finds that no case
against the accused has been made out which if unrebutted would warrant
his conviction shall record an order of acquittal”. Our s 180 continues thus
“or if it does not so find, shall call on the accused to enter on his defence”.
In other words if the Court “finds” that a case against the accused “has been
made out which if unrebutted would warrant his conviction” it shall call on
the accused to enter on his defence. Gordon-Smith Ag. JA has said that the
statement in Mozley and Whiteley’s Law Dictionary as quoted above “follows
very closely the actual wording of the sections” (meaning ss 173(f), 180 and
190 CPC) then the “prima facie case” must be established by that standard
of proof as is required by the Court when it “finds” that “a case or no case”
“has been made out which if unrebutted would warrant his conviction” about
which Blackstone’s Criminal Practice [1993] at p 1774 para F3.13 states:
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 629

The standard required of the prosecution before the tribunal of fact can find
the accused guilty as proof beyond reasonable doubt.

and at para F3.14 it states:

It is the duty of the Judge in the summing-up to make it clear to the jury
what standard of proof the prosecution are required to meet....

and cites Fanton Atkinson LJ in the case of Allan [1969] 1 WLR 33 at p

36 who said that “the onus is all the time on the prosecution”. If the onus
is all the time on the prosecution then the standard of proof required of the
prosecution to prove their case for the purpose of deciding whether to call the
accused to enter his defence must be proof “beyond reasonable doubt” and it
cannot be any less. In the case of Hornal v. Neuberger Products Ltd [1957] 1 QB
247 @ 263 Hadson LJ in his judgment said:

Students are familiar with Professor Kenny’s Outlines of Criminal Law (16th
Edn 1952, where the following passage appears at p 416:

A larger minimum of proof is necessary to support an accusation of crime

than will suffice when the charge is only of a civil nature. For in the latter
it is sufficient that there be a preponderance of evidence in favour of the
successful party, whereas in criminal cases the burden rests upon the
prosecution to prove that the accused is guilty ‘beyond reasonable doubt’.
When therefore the case for the prosecution is closed after sufficient
evidence has been adduced to necessitate an answer from the defence, the
defence need do no more than show that there is a reasonable doubt as to
the guilt of the accused.

and his Lordship continued by repeating the words of Denning LJ in Bater v.

Bater [1951] P 35, 36, 37 thus:

Denning LJ referred both to criminal and civil cases when he expressed

the same idea in Bater v. Bater: “The difference of opinion which has been
evoked about the standard of proof in recent cases may well turn out to
be more a matter of words than anything else. It is of course true that by
our law a higher standard of proof is required in criminal cases than in
civil cases. But this is subject to the qualification that there is no absolute
standard in either case. In criminal cases the charge must be proved beyond
reasonable doubt, but there may be degrees of proof within that standard.

and for himself he said:

Nevertheless, on the general question of the standard of proof in criminal

and civil cases, I would like to express my complete concurrence with the
words used by Denning LJ in the passage I have cited.

[201] Even the expression “beyond reasonable doubt” as being the standard
of proof required of the prosecution is also not written into our Criminal
Procedure Code. What is written into the said Code is “has been made out
 Arulpragasan Sandaraju
630 v. PP [1996] 1 MLRA

which if unrebutted would warrant his conviction.” But Gordon-Smith Ag.

JA in Chin Yoke expressed it differently thus (at p 487):

If however, on the other hand, after weighing up such evidence for the
prosecution one is satisfied that it would be wholly unsafe to convict upon
such evidence standing alone, no prima facie case has been made out and the
accused should not be called on for his defence.

[202] To translate his Lordship’s words in correspondence with those in s

180, for myself I would say that what he had in mind was that on weighing
the evidence at the end of the prosecution case and upon such evidence
standing alone meaning “if unrebutted”, it would be wholly unsafe to convict
upon such evidence meaning “no case has been made out if unrebutted it
would warrant his conviction” (and that would amount to no prima facie case
has been made out) and the accused should not be called to enter his defence.
Section 180 stipulates that there is only one standard of proof throughout the
prosecution case.

[203] Conversely that must mean that at that stage ie at the close of the
prosecution case if it would be safe to convict on the evidence for the
prosecution then and only then the accused would be called to enter
his defence. This answers the second limb of s 180. This means that the
prosecution has to prove every ingredient of the charge and at the end of
the case for the prosecution the Court shall then evaluate all the admissible
evidence as adduced relevant to the charge and decide whether to call or
not to call the accused to enter his defence. Puan Zaitun Zawiyah in her
written submission seems to say that the words “made out” found in s 180
CPC do not mean “proved” for as therein stated thus “if a case against him
has been made out (and not proved).” This can be misleading because the
prosecution has to prove its case beyond reasonable doubt. If at the end of
the case for the prosecution the accused is called upon to enter his defence
and he opts to remain silent then he shall be found guilty forthwith. So for
the Court to decide to call the accused to enter his defence, there must be the
kind of evidence before it upon which it is entitled to make up its mind that
the accused has committed the offence and to find him guilty forthwith if no
evidence from the accused is forthcoming. That is the kind of evidence that
must be available before the Court at the close of the prosecution case. That
suggests that it requires the Court, if I may borrow the expression in Khoo Hi
Chiang, to undertake a maximum evaluation of the evidence.

[204] Having said all that, what I need do, with respect, is to express my
support for the final draft judgment of my brother Judge Edgar Joseph Jr
FCJ on the question of the standard of proof required of the prosecution to
prove its case.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 631

[205] On the merits of the appeal, I also concur with his finding with the
result that the appeal must be allowed and accordingly the conviction is
quashed, the sentence of death is set aside and the appellant is acquitted and
discharged.

Wan Adnan Ismail FCJ (Majority):

[206] This appeal calls for the interpretation of s 180 of the Criminal
Procedure Code which provides as follows:

180. 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 on his defence.

[207] Under this section the prosecution is obliged to make out against
the accused a case if unrebutted would warrant his conviction before the
accused can be called upon to enter on his defence. In my view the phrase
“if unrebutted would warrant his conviction” describes the type or nature of
the case that the prosecution is obliged to make out. If the Court is satisfied
that the prosecution had succeeded in making out such a case then the Court
shall call upon the accused to enter on his defence. If the accused does not
tender any evidence at all the Court must convict the accused (see PP v. Man
bin Abas [1939] 1 MC 160). Since in order to convict the accused the Court
must be satisfied of the guilt of the accused beyond all reasonable doubt the
Court before calling the accused to enter upon his defence must be satisfied
that the prosecution had made out a case against the accused beyond all
reasonable doubt.

[208] Therefore it is my view that at the close of the prosecution case the
trial Court must decide whether or not the prosecution had established the
charge against the accused beyond all reasonable doubt. If the Court is not
satisfied that the prosecution had so established the accused must be acquitted
forthwith (see PP v. Lim Teong Seng & 2 Ors [1946] 1 MLRA 57; [1946] 1 MLJ
108). It follows that before the trial Court can call the accused to enter on his
defence the Court must first be satisfied that each and every ingredient of the
offence charged had been proved by the prosecution beyond all reasonable
doubt. This by no means, means that the Court in calling the accused to enter
on his defence has already made a finding on the guilt of the accused. The
Court only finds that every ingredient of the offence has been proved beyond
all reasonable doubt and that if there is no evidence in rebuttal at all the
accused will be convicted on the evidence adduced by the prosecution. This
is the first stage of the trial.

[209] The second stage comes after the defence has been called. The defence
can either rebut the prosecution evidence or raise a reasonable doubt as to
the truth of the prosecution case. At the end of the defence case it is the
duty of Court to consider the defence evidence in the light of the prosecution
 Arulpragasan Sandaraju
632 v. PP [1996] 1 MLRA

evidence. The Court considers the case as a whole. Then and only then the
Court will make a finding on the guilt of the accused. This is pursuant to s
183 of the Criminal Procedure Code.

[210] I have had the benefit of reading the judgment of my learned brother
Edgar Joseph Jr, FCJ and the judgment of my learned brother Mohd Azmi,
FCJ.

[211] With respect, I concur with the judgment of my brother Edgar Joseph
Jr, FCJ.

[212] I agree that the conviction of the appellant be quashed, the sentence of
death set aside and the appellant acquitted and discharged.

Mohd Azmi FCJ (Dissenting on standard of proof required at end of

prosecution’s case):

[213] The appellant in this case was charged and convicted on 11 December
1992 for trafficking in 1396.7 grammes of cannabis, an offence under s 39B(1)
(a) Dangerous Drugs Act 1952. He was sentenced to death. The main ground
of appeal is that “The learned trial Judge seriously misdirected himself in
law in relying on the principle in Haw Tua Tau, Ragunathan and Munusamy”
when calling for the appellant to enter his defence.

[214] This appeal has been specially fixed to consider the nature of the burden
or onus of proof under s 180 Criminal Procedure Code which is currently not
free from difficulty as a result of Khoo Hi Chiang v. PP [1993] 1 MLRA 701;
[1994] 1 MLJ 265; [1994] 2 CLJ 151; [1994] 1 AMR 323 and Tan Boon Kean
v. PP [1995] 2 MLRA 28; [1995] 3 MLJ 514; [1995] 4 CLJ 456; [1995] 3
AMR 3007. Section 180 provides:

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 on his defence.

[Emphasis Added]

[215] Consequently, the main issue of law for determination in this appeal is:

What is a case ‘which if unrebutted would warrant a conviction’ - is it a

beyond reasonable doubt case or a prima facie case?

[216] Khoo Hi Chiang purported to hold that it was a beyond reasonable doubt
case on the guilt of the accused. The answer to this question of law is of vital
importance as it would determine whether the learned Judicial Commissioner
in the Court below ought to have acquitted the appellant at the close of case
for the prosecution instead of calling him to enter his defence.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 633

[217] The conclusion in Khoo Hi Chiang at p 290 was an issue in Tan Boon
Kean. The crucial passage reads:

Consequently, the duty of the court, at the close of the case for the
prosecution, is to undertake, not a minimal evaluation of the evidence
tendered by the prosecution in order to determining whether or not the
prosecution evidence is inherently incredible - The Haw Tua Tau test - but
a maximum evaluation of such evidence, to determine whether or not
the prosecution has established the charge against the accused beyond all
reasonable doubt.

[Emphasis Supplied]

[218] It is a double-barrel decision. The first part lays down the duty of the
Court at the close of the case for the prosecution to undertake, not a minimal
evaluation but a maximum evaluation of the evidence. Whilst the second part
tells us that the object of such maximum evaluation is to determine whether
or not the prosecution has established the charge against the accused beyond
all reasonable doubt.

[219] In our judicial system, it is without doubt essential that the principle
of stare decisis should be strictly applied. But where the ruling of the previous
Court of superior or concurrent jurisdiction is not clear or is made per
incuriam, a later Court is enticed to depart from it. Thus, in Great Western
Railway Company v. Owners of SS Mostyn [1928] AC 57, Viscount Dunedin
held that if it is not clear what the ratio decidendi was, then it is not part of
the later tribunal’s duty to spell out with great difficulty a ratio decidenci in
order to be bound by it. The reason for this is clear enough for “No guidance
is more misleading than an obiter dictum” per Raja Azlan FJ in Non-metallic
Mineral Products Manufacturing Employees Union & Ors v. South East Asia Fire
Bricks Sdn Bhd [1976] 1 MLRA 10; [1976] 2 MLJ 67; [1983] 1 ILR 71 para G.

[220] In Tan Boon Kean, the Court had no difficulty in recognizing the first
limb of the decision as one on quantum or sufficiency of proof as the ratio
decidendi of Khoo Hi Chiang, but did not follow the suggestion by the appellant
to treat the second part of the judgment as having changed the burden of
proof under s 180 from a prima facie case to a beyond reasonable doubt case
that the accused is guilty. Based on the reasoning of the Supreme Court, the
Federal Court in Tan Boon Kean found considerable difficulty in accepting the
pronouncement as purporting to abolish the two- tier stage of criminal trial by
a single Judge, hitherto recognised and embedded in our adversarial justice
system, and it concluded that such suggestion (if any) in the pronouncement
requiring the Court to make a finding on a beyond reasonable doubt basis
on the guilt of the accused at that particular stage of the trial was obiter dicta.

[221] Tan Boon Kean further held that the object of the maximum evaluation
of the evidence by the Court at the close of prosecution case was to determine
whether the prosecution had made out a prima facie case before the Court could
 Arulpragasan Sandaraju
634 v. PP [1996] 1 MLRA

call the accused to enter his defence, and the question whether the accused
was guilty of the charge beyond reasonable doubt should be postponed until
the conclusion of the whole trial.

[222] In her written submission, Puan Zaitun Zawiyah, for the Public
Prosecutor, rejected the interpretation of s 180 as imposing a duty on the
Court to determine the guilt of the accused. Firstly, she argued that:

It is of utmost importance to remember that at the conclusion of the

prosecution case as provided in s 180 CPC, it is neither the function nor
the duty of Court to decide as to the guilt or otherwise of the accused.
The question whether the accused is found guilty must and should only be
decided at the conclusion of the whole trial as provided for in s 183(1) and
(2) CPC.

[223] Secondly, she submitted that:

At the close of the prosecution case the duty of the Court is to decide whether
a case has been made out against the accused person and not to decide
on his guilt, ie to determine whether or not all the legal ingredients of the
charge preferred against the accused has been established/complied with.

If the ingredients have been so proved by credible evidence then a case has
been made out based upon which the accused person could, on the evidence
standing alone, lawfully be convicted.

But the decision as to whether or not he is guilty of such charge and whether
or not he should be convicted for it is to be postponed until the Court goes
through the motion of calling the accused to answer the charge (to enter his
defence).

Only when he offers no evidence or the evidence in his defence fails to raise
any reasonable doubt against the prosecution case that Court could legally
make a finding as to his guilt and if so found to automatically convict him.

In short the finding of guilt must only be made at the conclusion of the trial
and it is based on this finding that he should be convicted. Mohamed Azmi
SCJ in Munusamy v. PP [1986] 1 MLRA 292; [1987] 1 MLJ 492 at p 497 para
C to H; [1987] CLJ 221 (right hand) had occasion to make observations on
this very point in the following terms:

It is obvious that there is nothing in Haw Tua Tau case to suggest that the
“prima facie case” approach as understood in criminal trials in this country
and enunciated in Public Prosecutor v. Chin Yoke [1939] 1 MLRH 103; [1940]
1 MLJ 47, is wrong in principle. On the contrary, i1n overruling the various
passages in Ong Kiang Kek on the effect of s 188(1) (formerly s 177C) it re-
establishes once and for all that there is no duty cast on the prosecution to
actually prove their case beyond reasonable doubt as to guilt of the accused
at the close of case for the prosecution. There is accordingly no rejection of
the ‘established beyond reasonable doubt’ test, provided it is applied at that
stage of the trial in the hypothetical form. Thus, under s 180, the Judge must
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 635

ask himself on the basis of credible evidence, a mere hypothetical question:

“If I were to accept the prosecution’s evidence as accurate, would it establish
the case against the accused beyond a reasonable doubt?” Putting it in the
‘prima facie case’ form: On the assumption that the prosecution’s evidence
was accurate, could the accused be lawfully convicted?” If the answer on
either question is in the affirmative, then a case is said to have been made
out which, if unrebutted, would warrant a conviction, and in such a case
the accused should be called upon to state his defence. It must necessarily
follow that if the accused elected to remain silent and called no evidence the
Court must convict him since the hypothetical position obtained pursuant
to s 180 that the prosecution evidence would not and could not be rebutted,
has become a reality (see PP v. Man bin Abas)

In Tan Boon Kean v. PP [1995] 2 MLRA 28; [1995] 3 MLJ 514; [1995] 4 CLJ
456; [1995] 3 AMR 3007, at 532 C to E, in elaborating on this very point
Mohamed Azmi FCJ said:

From the case of Mah Kok Cheong and other local authorities, there is clearly
no legal requirement for the Court to decide on the guilt of the accused at
the close of the prosecution. Only the test under s 180 needs to be applied.
If the accused elects to remain silent and call no evidence after defence is
called, then at the conclusion of the trial, there is a duty on the part of the
Court to consider the evidence as a whole as a separate exercise on the guilt
of the accused on the beyond reasonable doubt test, ie ‘Does the defence
raise a reasonable doubt as to the truth of the prosecution case or as to the
accused’s guilt?‘

We are not persuaded by Mr Karpal Singh’s argument that the learned

Judicial Commissioner in this appeal has erred in law for failing to comply
with the ratio in Khoo Hi Chiang. In our view there is no definitive ruling in
Khoo Hi Chiang that the word ‘case’ in s 180 is not a prima facie case.

[224] However in her concluding paras 6 and 7 of her written submission, the
learned DPP was begging the question posed by the Court. In her apparent
attempt to avoid an unpleasant task, she stated that there was no necessity for
the Court to describe the case as “beyond reasonable doubt case or a prima
facie case or any other type of case”. According to her the Court need only
follow the wording of s 180. But this is precisely the point - the meaning of
the words used in s 180 are now in question and this Court must attempt to
interpret them as best as it could. It must be observed that for the purpose of
our CPC, and in the context of the two-tier approach of criminal trials before
a single Judge, a prima facie case under s 180 is not the same as a beyond
reasonable doubt case on the guilt of the accused under s 183. As correctly
pointed out by the learned DPP, it is neither the function nor the duty of the
Court under s 180, to decide as to the guilt or otherwise of the accused.

[225] For reasons stated in Tan Boon Kean and Munusamy, I have no ground
to change my mind that Khoo Hi Chiang has not succeeded in abolishing
(if indeed that was the intention of the judgment) the prima facie test under
s 180, for to replace it with the “guilty beyond reasonable doubt test” the
 Arulpragasan Sandaraju
636 v. PP [1996] 1 MLRA

Supreme Court must surely discuss which it did not, how such a drastic legal
proposition could be reconciled with the cardinal principle of criminal law
that the general burden of proof on the guilt of the accused is always on
the prosecution throughout the whole trial and that it never shifts. Nor is
there any explanation how such a proposition could satisfy another cardinal
principle of criminal law on the presumption of innocence hitherto enjoyed
by the accused which is so essential as an ingredient of a fair trial in our
adversarial system of criminal justice. The Supreme Court was also silent on
how the new pronouncement would surmount the two-tier structure of our
criminal trials, as contained in ss 180 and 183 CPC and as so interpreted by
our Courts (See Mah Kok Cheong v. R [1953] 1 MLRH 541; [1953] 1 MLJ 46).
Notwithstanding Singapore’s case of Ong Kiang Kek v. PP [1970] 1 MLRH
273; [1970] 2 MLJ 283 and other lesser known High Court cases decided
locally, s 180 has been consistently interpreted by our superior Courts as
requiring a prima facie test since PP v. Goo Kian [1938] 1 MLRH 231; [1939]
1 MLJ 291b and Mah Kok Cheong v. R [1953] 1 MLRH 541; [1953] 1 MLJ
46 and subsequently by Pavone v. PP [1985] 2 MLRH 558; [1984] 1 MLJ 77,
Munusamy v. PP [1986] 1 MLRA 292; [1987] 1 MLJ 492; [1987] CLJ (Rep)
221 and Junaidi bin Abdullah v. PP [1993] 1 MLRA 452; [1993] 3 MLJ 217;
[1993] 4 CLJ 201; [1993] 2 AMR 2209. Indeed, with the greatest of respect,
the nature of the “case” constituting the burden of proof in s 180 in the form
that it is now before this Court was not even posed in Khoo Hi Chiang, and on
further reflection, I am of the humble opinion that the pronouncement in that
case was made per incuriam as a result of the Supreme Court:

(i) substituting the word “case” used by the legislature in s 180 with
“evidence”, or treating both words as if they meant the same thing, and
failure to consider s 183, and thereby failed to distinguish the crucial
difference between burden of proof and quantum of proof;

(ii) giving insignificant weight to the actual words used by the legislature in
s 180 particularly the words “if unrebutted”, and instead relying heavily
on the difference between jury and non-jury trials to the exclusion of
basic principles of interpretation of statutes;

(iii) unnecessarily relying on the Singapore’s Court of Appeal case of Ong

Kiang Kek v. PP [1970] 1 MLRH 273; [1970] 2 MLJ 283, which had been
reversed and ceased to be followed;

(iv) misreading the judgment of the Privy Council in Haw Tua Tau on
burden of proof as mere obiter dicta, and thereby failed to appreciate
the paramount importance of the concept of fair trial in the adversarial
system of criminal justice when interpreting s 180.

(i) Can The Word “Case” In Section 180 Be Substituted With “Evidence”

[226] In his written submission, Mr Karpal Singh for the appellant answers
the question posed by referring to the 1970 judgment of the Singapore Court
of Appeal in Ong Kiang Kek v. PP for the interpretation of s 180 as requiring
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 637

the trial Judge to apply the beyond reasonable doubt test on the guilt of the
accused. He also relies on the judgment of Laville J in PP v. Lim Teong Seng
& 2 Ors [1946] 1 MLRA 57; [1946] 1 MLJ 108 at 109. He went on to argue:

There are 2 stages. If the case for the prosecution is proved beyond
reasonable doubt at the close of its case upon a minimum evaluation of the
evidence at that stage, (as held in Khoo Hi Chiang v. Public Prosecutor [1993] 1
MLRA 701; [1994] 1 MLJ 265; [1994] 2 CLJ 151; [1994] 1 AMR 323 then
arises the defence which can rebut (it is here that the phrase ‘if unrebutted
would warrant a conviction’ assumes significance and import) what has
been proved beyond reasonable doubt at the close of the prosecution case by
raising a reasonable doubt on the prosecution case (see Mohamed Radhi bin
Yaacob v. Public Prosecutor [1991] 1 MLRA 158; [1991] 3 MLJ 169; [1991] 1
CLJ 311.

[227] Mr Karpal Singh’s oral and written arguments are therefore as follows:

(i) In s 180 CPC, the word “case” can be substituted with “evidence”.

(ii) Whilst recognising the two stages in criminal trial, the words “if
unrebutted would warrant a conviction” in s 180 refer to the second
stage, during which the accused could rebut his beyond reasonable
doubt guilt, ie after defence is called.

[228] I shall deal with the absurdity of the second argument later under the
next heading. As regards the first submission, it is sufficiently disposed off by
DPP Puan Zaitun Zawiyah in her oral submission. The learned DPP correctly
submitted that in order to establish a “case” under s 180 the prosecution must
adduce evidence. In my opinion, no authority is necessary to establish a clear
distinction between the word “case” and that of “evidence”. In PP v. Chin
Yoke [1939] 1 MLRH 103; [1940] 1 MLJ 47 at 48, Gordon-Smith Ag. JA
adopted the following meaning of a prima facie case as judicially defined in
Mozley and Whiteley’s Law Dictionary (5th Edn)

A litigating party is said to have a prima facie case when the evidence in his
favour is sufficiently strong for his opponent to be called on to answer. A
prima facie case, then, is one which is established by sufficient evidence and
can be overthrown only by rebutting evidence adduced by the other side.

[229] Sarkar On Evidence at p 45 defines “prima facie evidence” as “evidence

which, if accepted appears to be sufficient to establish a fact, unless rebutted
by acceptable evidence to the contrary. It is not conclusive”.

[230] Thus, although beyond reasonable doubt evidence is required to

establish a case under s 180, because of the words “if unrebutted”, the Court
must not treat the prosecution case as conclusive at that stage of the trial.
Since the case is not conclusive, it can only be prima facie even if the evidence
on the essential ingredients of the charge is credible and accepted by the
Court. On the other hand, if the evidence on the essential ingredients of the
 Arulpragasan Sandaraju
638 v. PP [1996] 1 MLRA

charge are lacking or not credible, either by themselves or as a result of cross-

examination, there can be no prima facie case and the accused is entitled to an
acquittal (see PP v. Balasubramaniam [1947] 1 MLRH 608; [1948] 1 MLJ 119,
where an essential ingredient of the charge was not proved, and Wong Yiap
Long & Anor v. PP [1955] 1 MLRH 488; [1955] 1 MLJ 132, where prosecution
evidence was incomplete). Conversely, a “beyond reasonable doubt case”
(unless it is applied on a hypothetical basis) is one which is already conclusive
and would therefore be inconsistent with the words “if unrebutted” in s 180.
The “case” required to be made out by the prosecution must by the very
words of the section be of a prima facie nature. In our two-tier structure, the
beyond reasonable doubt test on the guilt of the accused must be postponed
until the conclusion of the trial, as enunciated by the Privy Council and
statutorily required by our s 183 which provides:

(1) If the Court finds the accused not guilty the Court shall record an order
of acquittal.

(2) If the Court finds the accused guilty or if a plea of guilty has been
recorded and accepted the Court shall pass sentence according to law.

[231] For the purpose of interpretation of s 180 this Court must remind itself
of basic principles governing the interpretation of statutes as laid down by the
House of Lords and often cited by our Courts. The first can be found in the
judgment of Lord Macmillan in London and North Eastern Railway Company v.
Berriman [1946] AC 278 @ 295:

I quote and adopt the words of Alderson B: “The rule of law, I take it, upon
the construction of all statutes... is, whether they be penal or remedial, to
construe them according to the plain, literal, and grammatical meaning of
the words in which they are expressed, unless that construction leads to a
plain and clear contradiction of the apparent purpose of the Act, or to some
palpable and evident absurdity.” (Attorney- General v. Lockwood [1842] 9 M
& W 378, 398.)

[232] The second cannon of interpretation is provided by Magor and St

Mellons Rural District Council v. Newport Corporation [1952] AC 189, where at
p 191 Lord Simonds said:

... The duty of the Court is to interpret the words that the legislature has
used; those words may be ambiguous, but, even if they are, the power and
duty of the Court to travel outside them on a voyage of discovery is strictly
limited; see, for instance, Assam Railways & Trading Co Ltd v. Inland Revenue
Commissioners, and particularly the observations of Lord Wright [1935] AC
458.

[233] Finally, in Duport Steels Ltd v. Sirs [1980] 1 WLR 142, Lord Diplock
warned judges against the temptation to provide their own amendments of
statute under the guise of interpretation, when he said at p 157:
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 639

A statute passed to remedy what is perceived by Parliament to be a defect

in the existing law may in actual operation turn out to have injurious
consequences that Parliament did not anticipate at the time the statute was
passed;... But if this be the case it is for Parliament, not for the judiciary,
to decide whether any changes should be made to the law as stated in the
Acts...

It endangers continued public confidence in the political impartiality of the

judiciary, which is essential to the continuance of the rule of law, if Judges,
under the guise of interpretation, provide their own preferred amendments
to statutes which experience of their operation has shown to have had
consequences that members of the Court before whom the matter comes
consider to be injurious to the public interest.

[234] In my view, Khoo Hi Chiang with the utmost respect, was misled by the
erroneous way in which the nature of the onus on the prosecution was posed
as contained in the submission of Counsel of the appellant before the Supreme
Court, on the alleged need to tender evidence (instead of the requirement to
make out a case) “which if unrebutted would warrant a conviction”. At p
277, the judgment states:
The principal points of law argued were twofold: firstly that in ruling that the
appellants had a case to answer, the Judge had relied on the test laid down
by Lord Diplock in Haw Tua Tau which requires only a minimal evaluation
of the evidence at the close of the case for the prosecution to ensure that it
is not inherently incredible. It was said he was wrong in so doing as the
onus on the prosecution at the close of its case was not to establish a prima
facie case, but to tender evidence which if unrebutted, would warrant a
conviction. (see s 180 of the Code)

[Emphasis Supplied]

[235] The requirement of the prosecution to tender evidence adopted by Khoo

Hi Chiang can be found, not in s 180, but in s 179. Section 180 does not say
that the prosecution must tender or render evidence “which if unrebutted
would warrant a conviction” - the term used in Ong Kiang Kek v. PP [1970]
1 MLRH 273; [1970] 2 MLJ 283, a Singapore case which is no longer good
law but unfortunately followed by Khoo Hi Chiang. In my opinion, the Court
is not permitted to substitute the word “case” in s 180 with “evidence”. To
borrow the words used in Khoo Hi Chiang at p 290, “To do so would amount
to making an unauthorised amendment to a statutory provision which
touches the liberty of the subject.” Section 180 deals with burden of proof
and not quantum of proof. The omission to distinguish them would seem to
cause Ong Kiang Kek and other similar cases to travel outside the words used
in the section.

[236] Section 163 of the Sarawak Criminal Procedure Code (Cap 58 Laws
of Sarawak 1958, Vol 2) affords a good illustration of the distinction between
the two words. Prior to amendment by Ordinance No 11 of 1962, the section
(which contained similar hypothetical words as s 180) provided:
 Arulpragasan Sandaraju
640 v. PP [1996] 1 MLRA

If upon taking all the evidence referred to in s 162 and asking such questions,
if any, of the accused under s 201 as the Court considers necessary it finds
that no case against the accused has been made out which, if unrebutted,
would warrant his conviction, the Court may, subject to the provisions of
s 171, record an order of acquittal.

[Emphasis Supplied]

[237] With effect from 16 July 1962, the legislature amended the word “case”
with “evidence“:
... it finds that no evidence has been adduced which if believed would,
warrant conviction... (The rest of the section remains the same).

[238] A legislative intervention is thus necessary before the word “case” in

our s 180 can be substituted with “evidence”. What Khoo Hi Chiang did in its
interpretation of s 180 is in my view contrary to basic principles of statutory
interpretation. Since the words “case” is plain and unambiguous, its ordinary
and literal meaning should be adopted. Substituting the word “case” with
something else is in the words of Lord Simonds in Magor and St Mellons RDC,
to allow the Court to usurp the function of the legislature by permitting it to
travel outside the legislative word on a voyage of discovery. There is nothing
absurd in the prima facie test interpretation of s 180. In order to give substance
to the principle of fair trial, the prima facie interpretation of the section has
been adopted for a very long time in this country, until Ong Kiang Kek in
1970 and now Khoo Hi Chiang came into the picture. In this regard, I have
no reason to change my mind from what was said in Munusamy v. PP that in
effect there is no difference conceptually between the prima facie test in Haw
Tua Tau and the other test on burden of proof, provided the trial Judge or
Magistrate bears in mind that the beyond reasonable doubt test may only
be applied on the hypothetical basis at that stage of the proceedings due
to the words “if unrebutted” in s 180. Be that as it may, to avoid practical
difficulties, particularly in the lower Courts, Judges in Malaysia should in
my opinion continue to use the prima facie test which has served us well. To
require the trial Judge to find the accused in fact and in law guilty beyond
reasonable doubt under s 180 would not only be contrary to the principle of
fair trial in an adversarial system of criminal justice as stated in Haw Tua Tau,
but also inconsistent with the requirement of “if unrebutted” in that section
read with sub-sections (1) and (2) of s 183 CPC.
[239] As was laid down in Munusamy v. PP [1986] 1 MLRA 292; [1987] 1
MLJ 492 @ 497; [1987] CLJ (Rep) 221:
It is therefore wrong under ss 173(f), 180 and 190 of the CPC for a Judge or
Magistrate to require the prosecution to prove that the accused is actually
guilty beyond a reasonable doubt before calling for his defence. That
requirement for ultimate decision must be postponed until the end of the
trial after the defence has given evidence and close its case. In substance,
that is what Gordon-Smith Ag. JA. meant when he held in 1940 in Public
Prosecutor v. Chin Yoke [1939] 1 MLRH 103; [1940] 1 MLJ 47 (ante).
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 641

[240] It must be emphasised that in the prima facie test under s 180 the Judge
must not call for the defence merely to supplement what would otherwise be
a hopeless prosecution case. The question of law to be posed is a hypothetical
one. The test is not whether the accused ought to be found guilty and
convicted at that stage of the proceedings, but whether he should or could be
convicted if the prosecution case is unrebutted at that stage of the trial. As the
trial is not yet over, the learned DPP is correct in her submission that s 180
does not impose a duty on the Court to determine the guilt of the accused on
the charge preferred against him. To do so is a miscarriage of justice not only
because it completely violates the cardinal principle of criminal justice that
an accused person is presumed innocent throughout until proven guilty at the
conclusion of the whole trial, but is also contrary to the cumulative effect of
ss 178 to 183 CPC. As such the duty of the trial Judge to determine whether
the accused is guilty or not guilty must not arise in the middle of the trial, and
under s 183, such duty only arises at the conclusion of the whole trial, after
the prosecution has exercised the right of reply on the whole case under s 182.
It is in the context of the principles of audi alteram partem and presumption of
innocence that Tan Boon Kean observed the absurdity of deciding the guilt of
the accused before the trial is over.

... what chance would the accused have to earn an acquittal at the conclusion
of the trial if the Court were obliged to decide at the close of prosecution that
he was already guilty of the charge beyond any reasonable doubt?

[241] The maxim audi alteram partem is explained in Jowitt’s Dictionary of

English Law as follows:

Audi alteram partem; audiatur et altera pars (hear the other side) an injunction
which means that no man should be condemned unheard or without having
had an opportunity of being heard. It is “an indispensable requirement of
justice that the party who had to decide shall hear both sides, giving each
an opportunity of hearing what is urged against him” (Re Brook [1864] 16
CB (NS) 403, 416, per Erle CJ). See Broom 65. It is one of the principles
of natural justice (qv). See also Cooper v. Wandsworth Board of Works [1863]
32 LJCP 185, and the reference therein, at p 188, by Byles J, to Bentley’s
Case [1723] 1 Str 557, and the quaint reason given by Fortescue J for the
common law supplying the omission in a statute to direct a hearing: Hopkins
v. Smethwick Local Board [1890] 24 QBD 712.

Similarly, Qui aliquid statuerit parte inaudita altera, aequum licet dixerit, haud
aequum fecerit - 6 Co Rep 52 (taken from Seneca’s Medea). (He who shall
decide anything without the other side having been heard, although he may
have said what is right, will not have done what is right.)

[242] In the circumstances, substituting the duty of the prosecution to make

out a “case” under s 180 with the duty to render or tender “evidence which
if unrebutted would warrant a conviction” is wholly unjustified and wrong
in law.
 Arulpragasan Sandaraju
642 v. PP [1996] 1 MLRA

(ii) Can The Words “If Unrebutted” In Section 180 Be Ignored?

[243] On Mr Karpal Singh’s second argument, it seems obvious from the

hypothetical language of s 180 that it cannot refer to the second stage of the
criminal trial, and that the words “if unrebutted would warrant a conviction”
must relate entirely to the nature of the case to be made out by the prosecution
before there can be a case to answer. As pointed out by Tan Boon Kean it is a
question of law and not of evidence.

[244] In s 180, the legislature did not say that the case must be one which if
unrebutted at the close of defence would warrant a conviction. The section
solely governs the prosecution, and it does not as suggested by Mr Karpal
Singh impose any onus on the accused to rebut the case made out by the
prosecution under that section. It is trite law that to earn an acquittal at the
close of defence, the only duty on the accused under s 183(1) is to raise a
reasonable doubt as to his guilt or as to the truth of the prosecution taken in
its entirety having regard to the defence. As laid down in the famous speech
of Viscount Sankey LC in Woolmington v. Director of Public Prosecutions [1935]
AC 462 @ 481:

Throughout the web of the English Criminal Law, one golden thread is
always to be seen, that it is the duty of the prosecution to prove the prisoner’s
guilt.... If, at the end of and on the whole of the case, there is a reasonable
doubt, created by the evidence given by either the prosecution or the
prisoner, as to whether the prisoner killed the deceased... the prosecution
has not made out the case and the prisoner is entitled to an acquittal. No
matter what the charge or where the trial, the principle that the prosecution
must prove the guilt of the prisoner is part of the common law of England
and no attempt to whittle it down can be entertained.

[245] Thus, it is wrong for Mr Karpal Singh in support of Khoo Hi Chiang to

whittle down the cardinal principle of our criminal law on the presumption of
innocence of the accused throughout the whole trial, by interpreting s 180 in
such a way that imposes not only a duty on the trial Judge to find the accused
guilty beyond reasonable doubt prematurely at close of the prosecution case,
but also to impose a heavier burden on the accused to rebut the prosecution
case, when in law the defence duty is merely to raise a reasonable doubt to
earn an acquittal. The prima facie interpretation of that section, being more
consistent with the concept of fair trial under natural justice and as well as
with the principles of criminal law, must be preserved as an indispensable
requirement of justice.

[246] It is also incorrect for Mr Karpal to submit without any authority, that
the two stages in criminal trial are both governed by s 180 without any regard
to s 183 and the cardinal principles in Woolmington. The words “if unrebutted
etc” merely emphasise the prima facie nature of the test. The cumulative effect
of ss 180 to 183 also indicates that s 180 is not intended to govern the second
stage of criminal trial. Unlike the continuing burden on the prosecution to
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 643

prove the guilt of the accused from beginning to end, the burden under s
180 ceases once defence is called. As stated earlier, it is trite law that an
accused person must be presumed innocent until proven guilty, and that final
determination must surely be made, not in the middle of the trial but at its
conclusion which will normally occur after the defence is closed, or on the
rare occasion that the accused elects to remain silent and calls no evidence.
The two distinct burden of proof on the prosecution in a criminal trial is well
established in Mah Kok Cheong v. R [1953] 1 MLRH 541; [1953] 1 MLJ 46
and re-affirmed in Tan Boon Kean. First, is the statutory burden under s 180
to make out a prima facie case at the close of prosecution, and second is the
general burden which never shifts on the guilt of the accused based on proof
“beyond reasonable doubt”. There is accordingly no real purpose in bringing
into argument the question of quantum of proof in s 214 for the interpretation
of s 180. The former deals with jury trial with which we are not concerned.
If Mr Karpal Singh accepted the two-stage structure of criminal trial, then he
must surely accept the distinct burden at each level of the trial.

[247] Another flaw in the reasoning of Khoo Hi Chiang (and repeated by Mr

Karpal Singh) is the reliance on Lavile J’s obiter dicta in PP v. Fong Ah Tong &
Cheong Chi Shen [1940] 1 MLRH 641; [1940] 1 MLJ 240 on the meaning of
the word ‘warrant’ in s 180 without any regard to the words “if unrebutted”.
Laville J said at p 240, “warrant in my view is a strong word and excludes
any doubt by the Court.” In addition, Laville J had in my view committed the
common error of mixing up the question of burden of proof with quantum of
proof for the purpose of s 190 (which is in pari materia with s 180) by treating
it as “evidence which if unrebutted would warrant a conviction.” Thus, at p
280 para C, the judgment in Khoo Hi Chiang reads:

In PP v. Fong Ah Tong & Cheong Chi Shen [1940] 1 MLRH 641; [1940] 1 MLJ
240, a murder trial before a Judge with assessors, a submission of no case to
answer had been made by Counsel for the defence under s 190 of the Code
and, in the course of his ruling thereon, Laville J said this at p 240 paras 3
and 4:

But by s 190 it would appear that there is an onus cast on the presiding Judge
at a trial with the aid of assessors to decide at the end of the prosecution
evidence, not as in jury cases whether there is any evidence at all of the guilt
of the accused, to go to the jury, but a greater onus, namely whether the
prosecution evidence if no evidence is given at all by accused would justify a
conviction. “Warrant” in my view is a strong word and excludes any doubts
by the Court.

The evidence which would warrant a conviction, if unrebutted, is evidence

that satisfies the Court beyond all reasonable doubt that the accused is
guilty of the offence charged or some lesser offence. The criterion therefore
on which the Court must work is, if there is no more evidence, has the
prosecution proved its case beyond all reasonable doubt.
 Arulpragasan Sandaraju
644 v. PP [1996] 1 MLRA

Fong Ah Tong appears to be the only locally reported case where the word
‘warrant’ in the context of s 190 had received judicial considerations.

[248] Later, at p 290, the learned Judge used this argument to show that the
term “would warrant a conviction” does not mean “could or might warrant
a conviction“:

Looking back what all this lengthy discussion comes to is whether we can
treat the words ‘which if unrebutted would warrant a conviction’ appearing
in ss 180, 190 and 173(f) of the Code as meaning no more than ‘which if
unrebutted could or might warrant a conviction’.

With all due respect to Lord Diplock - and we say this humbly, even without
reference to the wealth of long-standing decisions by Judges in this country
and in Singapore to which we have referred, and only after careful thought
that we are unable to treat the words ‘which if unrebutted would warrant a
conviction’ as meaning no more than ‘which if unrebutted could or might
warrant a conviction.’ To do so would amount to making an unauthorised
amendment to a statutory provision which touches the liberty of the subject.
With the support of the long-standing decisions to which we have referred
our view would be a fortiori.

[249] Whilst there can be no dispute that the word “warrant” is a strong word
it must be read in the context of “if unrebutted”. As indicated earlier the
question of law to be asked at the close of the case for the prosecution is not
whether the accused ought to be convicted, but whether he could be convicted
if no further evidence is forthcoming (see May v. O’sullivan [1954 - 55] 92 CLR
654 cited with approval in Tan Boon Kean). In my view, the importance of
any distinction between jury and non-jury trials becomes secondary, unless
the term “if unrebutted” is given due consideration regarding its ordinary
significance for the purpose of interpretation. In this connection, it is relevant
to bear in mind Lord Wensleydale’s golden rule cited with approval by Lord
Blackburn in River Wear Comrs v. Adamson [1877] 2 AC 743 @ 764-5.

... that we are to take the whole statute together, and construe it all together,
giving the words their ordinary significance, unless when so applied they
produce an inconsistency, or an absurdity or inconvenience so great as to
convince the Court that the intention could not have been to use them in
their ordinary signification, and to justify the Court in putting on them some
other signification, which, though less proper, is one which the Court thinks
the words will bear.

[See Stephenson LJ in Manson v. Duke of Westminster [1981] 2 AER 40 @ 48].

[250] The requirement of “if unrebutted”, just as “would warrant a

conviction” must be fulfilled as a matter of law by the trial Judge before
and not after calling for the defence. This onus to make out a prima facie case
under s 180 is on the prosecution and not on the defence. As such, Mr Karpal
Singh’s oral and written submission must be rejected, as it violates basic
principle of interpretation of statutes in the same way that the word “case”
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 645

(which is essentially a question of law) ought not to be treated as “evidence”

(which is a question of fact). Further, as stated earlier on, the onus placed
on the defence under s 183 is merely to raise a reasonable doubt either as to
the guilt of the accused, or as to the truth of the prosecution case taken in its
totality, and there is no duty except in such limited instances like statutory
presumptions, to rebut every allegation made by the prosecution. To avoid
an absurd result, s 180 should be interpreted in accordance with the basic
principle of criminal law that the onus of proving beyond reasonable doubt
that the accused is guilty as charged rests upon the prosecution throughout
the whole trial and never shifts to the defence, but the determination as to
guilt or otherwise of the accused must be postponed until the conclusion
of the whole trial. The whittling down of this cardinal principle cannot be
justified for whatever reason. On this ground alone the principle enunciated
in Khoo Hi Chiang which requires the Judge to make a finding of guilt or
otherwise of the accused in the middle of a trial must be rejected.

(iii) Is It Necessary To Rely On Ong Kiang Kek v. PP [1970] 1 MLRH 273;

[1970] 2 MLJ 283

[251] In giving undue weight to Laville J’s judgments in PP v. Fong Ah Tong &
Cheong Chi Shen [1940] 1 MLRH 641; [1940] 1 MLJ 240 and PP v. Lim Teong
Seng & 2 Ors [1946] 1 MLRA 57; [1946] 1 MLJ 108, Khoo Hi Chiang seems
to rely heavily on Ong Kiang Kek v. PP [1970] 1 MLRH 273; [1970] 2 MLJ
283 @ 284, 285 where the Singapore Court of Appeal (Wee Chong Jin CJ,
Tan Ah Tah and Winslow JJ) in allowing an appeal against conviction for
murder held that the trial Court was required by s 177C CPC, at the close of
the prosecution case to determine whether or not the evidence tendered on
behalf of the prosecution, if unrebutted, had established the “case” against
the accused beyond a reasonable doubt. If the Court found at that stage of the
trial that it had not been so established there was nothing left but to acquit the
accused. Page 284 of Ong Kiang Kek reads:

In fact the law imposes a duty on the Court, whether or not a submission
of no case to answer has been made, to consider at the close of the case
for the prosecution whether or not a case has been made out against the
accused which if unrebutted would warrant his conviction. Section 177C of
the Criminal Procedure Code reads:

177C: 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 on his defence.

Section 172 which prescribes the procedure to be observed by Magistrates’

Courts and District Courts in summary trials contains a para (f) which is
similar in terms to s 177C. It is settled law that under s 172(f) a Magistrate’s
Court or a District Court is bound to acquit an accused person if, at the close
of the case for the prosecution, the Court on the evidence then before it has
a reasonable doubt as to the guilt of the accused of the offence charged.
 Arulpragasan Sandaraju
646 v. PP [1996] 1 MLRA

The reason is because in a criminal case it is a cardinal principle that the

burden is on the prosecution to prove the case against the accused beyond a
reasonable doubt and accordingly no convinction can be warranted unless
at the close of the case for the prosecution the Court is left in no reasonable
doubt as to the guilt of the accused.

[252] It is clear that the above passage in effect buried the two-tier structure
of criminal trials which naturally did not find favour with the Privy Council.

[253] The Privy Council through Lord Diplock disagreed that at that stage of
the trial, s 177C CPC (our s 180) required the trial Judge to determine whether
the accused is guilty beyond reasonable doubt. The section requires a case to be
made out “which if unrebutted would warrant a conviction”. I find it difficult
to understand why the Privy Council was wrong in holding that by the very
words of s 180 (s 177C Singapore) they do not require such determination.
In my view any suggestion that s 180 deals with satisfaction by the Court on
the guilt of the accused on a beyond reasonable doubt basis, is itself guilty
of mutilating the words used by the legislature. It is for this reason that the
Privy Council held that the case of Ong Kiang Kek was wrongly decided, and
all that s 180 requires is for the trial Judge to ask himself a hypothetical
question of law whether at the close of case for prosecution the accused could
be found guilty, if the case as it stood were unrebutted. It is different from
the sole question to be asked at the conclusion of the trial which is, “Does
the defence raise a reasonable doubt as to the truth of the prosecution case
or as to accused’s guilt?” (see principle laid down by Spencer Wilkinson J in
Mah Kok Cheong v. R [1953] 1 MLRH 541; [1953] 1 MLJ 46 The requirement
of a finding of guilt on a beyond reasonable doubt basis by the Court under
s 180 other than on a hypothetical basis, would indeed in the words of Lord
Diplock “runs counter to the concept of what is a fair trial” on the adversarial
system of criminal trials. The word “case” as correctly submitted by DPP
Puan Zaitun Zawiyah must of course be established by the evidence of
witnesses called by the prosecution. In the process of weighing the evidence
for the purpose of establishing a prima facie case, the Court should not accept
such evidence as credible, unless they are beyond reasonable doubt evidence,
but such acceptance of evidence proving the essential ingredients of the
charge, need not be conclusive on the guilt of the accused but it should only
be on a hypothetical basis that no further evidence would be forthcoming,
and as such the Court must keep an open mind on the question of guilt till
the conclusion of the whole trial. It is therefore quite different and distinct
from the process of finding the accused guilty beyond reasonable doubt at the
conclusion of the trial under s 183. These words “which if unrebutted would
warrant a conviction” in s 180 in effect define the very nature of the prima
facie case required to be established by the prosecution. It is fatal to ignore the
hypothetical nature of s 180. To do so would result in misinterpretation of the
law as did happen in Ong Kiang Kek and other similar cases, which attempted
to amend the words used in the section under the guise of interpretation.
With the greatest respect, Khoo Hi Chiang which seems to follow Ong Kiang
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 647

Kek’s adoption of Laville J judgments in the two 1940s High Court cases, also
became the victim of ignoring the hypothetical nature of s 180.

[254] One may ask why should the principle of fair trial be so important if
the decision of the Judge at the end of the day is correct on the evidence? The
answer lies in the very concept of justice itself. Justice warrants not only a
just decision but equally important a fair trial. A reference to the judgment
of Gunn Chit Tuan J (as he then was) in Mohamed Din v. PP [1984] 2 MLRH
629; [1985] 2 MLJ 251 at 256 is relevant:

Counsel for the appellant, however, did refer me to the following passage
of Fullagar J in the High Court of Australia case of Meaz v. the Queen [1955]
93 CLR 493, 514 concerning the meaning of the expression ‘miscarriage
of justice’ in s 6(1) of the New South Wales Criminal Appeal Act of 1912:

It is very well established that the proviso to s 6(1) does not mean that a
convicted person, on an appeal under the Act, must show that he ought not
to have been convicted of anything. It ought to be read, and it has in fact
always been read, in the light of the long tradition of the English criminal
law that every accused person is entitled to a trial in which the relevant law
is correctly explained to the jury and the rules of procedure and evidence
are strictly followed. If there is any failure in any of these respects, and the
appellant may thereby have lost a chance which was fairly open to him of
being acquitted, there is, in the eyes of the law, a miscarriage of justice.
Justice has miscarried in such cases, because the appellant has not had what
the law says that he shall have, and justice is justice according to law. It is
for the Crown to make it clear that there is no real possibility that justice
has miscarried.

[255] Another relevant authority is the Indian case of Krishna Murthy v. Abdul
Subban [1965] 1 CRLJ 565, 576, where Hegde J held:

... In law the expression “justice” comprehends not merely a just decision
but also a fair trial. Sections 535 and 537, Cr PC have primarily in view a
fair trial. For the purpose of these sections a denial of fair trial is denial of
justice. One of the contents of natural justice, which is so much valued, is
the guarantee of a fair trial to an accused person. A fair trial is as important
as a just decision. Neither the one nor the other can be sacrificed. Sacrifice
of the one, in the generality of cases, is bound to lead to the sacrifice of the
other. The two are closely interlinked.

[256] It is for this reason that DPP Mr Stanley Augustin’s last minute
attempt in Tan Boon Kean to short circuit that appeal by indulging in plea
bargaining with the appellant (a practice regarded as improper in common
law jurisdiction) by offering to accept conviction on a lesser charge for
possession instead of trafficking could not be entertained. This is made clear
by the Federal Court at p 520:

... We must stress at this stage that if the statutory test imposed by s 180 of
the Code had been wrongly applied by the learned Judicial Commissioner
 Arulpragasan Sandaraju
648 v. PP [1996] 1 MLRA

in calling for the appellant to enter his defence, then the conviction would
certainly be wrong in law irrespective of whether the conviction is for
trafficking or for mere possession of dangerous drugs under the Act.

[257] Similarly, if the trial Court in this appeal had applied the wrong statutory
test when deciding that there was a case for the appellant to meet, then there
would clearly be a miscarriage of justice under the proviso to s 60(1) of the
Courts of Judicature Act 1964 on the principle laid down in Meaz v. The Queen
and followed in Mohamed Din v. PP in which event, on that ground alone
the appellant would have been entitled without much ado, to succeed in his
appeal. An accused person is entitled to a fair trial in which the relevant laws
including the onus of proof are correctly applied by the trial Judge. “If there is
any failure in any of these respects, and the appellant may thereby have lost
a chance which was fairly open to him of being acquitted, there is in the eyes
of the law, a miscarriage of justice.” It would therefore be a contradiction in
terms, if this Court were to conclude that the learned Judicial Commissioner
was wrong in calling for the appellant to enter his defence and yet at the same
time proceed to consider the defence on its merits, instead of allowing the
appeal forthwith on ground of applying the wrong test, under s 180.

[258] In the circumstances, to interpret s 180 as did Khoo Hi Chiang on the

basis of beyond reasonable doubt test on the guilt of the accused “runs
counter to the concept of what is a fair trial” under the adversarial system
and is therefore wrong in law. In my view, it is absolutely essential that s 180
be construed in accordance with the concept of fair trial under natural justice.

(iv) Is The Judgment Of The Privy Council In Haw Tua Tau On The
Burden Of Proof Under Section 180 Obiter Dicta?

[259] After commenting on the constitutional issue raised before the Judicial
Committee of the Privy Council, the Supreme Court in Khoo Hi Chiang held
at p 286:

It was therefore, strictly unnecessary for Lord Diplock, who spoke for the
Board, to consider the effect of s 188(1) of the Singapore Criminal Procedure
Code which reads:

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 on his defence.

Nevertheless his Lordship did so at some length because of certain passages

in the judgment of the Court of Appeal in Singapore in Ong Kiang Kek v.
PP which indicated quite clearly that, unless at the end of the case for the
prosecution the evidence adduced has already satisfied the Judge beyond
a reasonable doubt that the accused is guilty, the Judge must order his
acquittal.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 649

[260] At p 288, the Supreme Court (after citing in extenso the powerful
reasoning of the Privy Council in rejecting Ong Kiang Kek) arrived at the
following crucial conclusion:

It would appear therefore, that the view of Lord Diplock as to the

interpretation of s 188(1) was obiter dicta. Certainly, apart from Ong Kiang
Kek’s case, Lord Diplock made no mention of any of the local or Singapore
cases to which we have referred, and which are to the opposite effect.

[261] Thus, by the obiter dicta argument, Khoo Hi Chiang had unfortunately
deprived itself of the opportunity to consider the very strong and sound
argument of the Privy Council as to why the ruling in Ong Kiang Kek could
not be sustained in law, it being contrary to the character of a fair criminal
trial under the adversarial system, and if I may also add, contrary to the
express provision of our s 180 read with s 183 CPC.

[262] It should be observed that in rejecting the two-tier structure of criminal

trials, Wee Chong Jin CJ in Ong Kiang Kek almost solely relied on Laville J
in PP v. Lim Teong Seng & Ors [1946] 1 MLRA 57; [1946] 1 MLJ 108 (a case
involving defective identification of the accused which in any event could
not pass the prima facie test) wherein the only authority considered was his
own opinion in PP v. Fong Ah Tong & Cheong Chi Shen [1940] 1 MLRH 641;
[1940] 1 MLJ 240. These three authorities have not been approved by any
superior appellate Court in Malaysia. The majority and better view favours
retaining the two-tier approach on the strict interpretation of s 173(f) and s
180. Amongst the well known authorities are those laid down by Gordon-
Smith Ag JA in PP v. Chin Yoke [1939] 1 MLRH 103; [1940] 1 MLJ 47 and
Spencer Wilkinson J in Mah Kok Cheong v. R [1953] 1 MLRH 541; [1953] 1
MLJ 46 where it was clearly explained that the duty of the Judge at the close
of case for the prosecution is quite distinct from his duty at the conclusion
of the trial. The final blow at Laville J’s opinion was delivered by Haw Tua
Tau which to all intents and purposes reversed the opinion of the Singapore
Court of Appeal in Ong Kiang Kek. Indeed, in Singapore itself Ong Kiang Kek
is no longer good law. This is also the position in Brunei (see Yeo Tse Soon v.
PP [1994] 1 MLRA 479; [1995] 3 MLJ 255; [1995] 2 CLJ 179). The blow was
repeated in Malaysia by a strong panel of the Federal Court in A Ragunathan v.
PP [1981] 1 MLRA 209; [1982] 1 MLJ 139; [1982] CLJ (Rep) 63 (Raja Azlan
Ag LP, Salleh Abbas and Abdul Hamid FJJ) and subsequently explained by
Munusamy v. PP [1986] 1 MLRA 292; [1987] 1 MLJ 492; [1987] CLJ (Rep)
221 and Junaidi bin Abdullah v. PP [1993] 1 MLRA 452; [1993] 3 MLJ 217;
[1993] 4 CLJ 201; [1993] 2 AMR 2209 (Mohd Jemuri CJ(B), Mohd Azmi
and Peh Swee Chin FJJ). As Ong Kiang Kek is already a dead horse both
here and in its country of origin, I can see no useful purpose for this Court
to flog it, in the face of strong judicial opinion to the contrary including a
reasoned judgment delivered by Edgar Joseph J (as he then was) in Pavone
v. PP [1985] 2 MLRH 558; [1984] 1 MLJ 77 at 79 when at the close of case
for the prosecution, the learned Judge opined that, “the sole question at the
 Arulpragasan Sandaraju
650 v. PP [1996] 1 MLRA

close of the case for the prosecution is whether or not a prima facie case has
been made out....” It is interesting to note that the judgment in Pavone was
delivered in the High Court at Penang notwithstanding the absence of any
serious discussion in Ragunathan and without any assistance from Munusamy
which arrived about three years later. Although nothing much should be
attached to the failure of Khoo Hi Chiang to consider Pavone, it is worthy to
note that the prima facie test (and not the beyond reasonable doubt test on a
hypothetical basis) was applied.

[263] In any event there appears to be no justification for Khoo Hi Chiang to

conclude that the burden of proof at the close of case for the prosecution as
laid down by the Privy Council in Haw Tua Tau was obiter dicta, namely an
opinion which is not necessary for the decision of the case within the principle
enunciated in Flower v. Ebbw Vale Steel, Iron & Coal Co [1934] 2 KB 132 at 154.
The full report of the Privy Council proceedings in Haw Tua Tau appearing in
[1982] AC 136 at 139 (not so in MLJ), clearly shows that Ong Kiang Kek was
very much in contention as an integral part of the constitutional issue. At p
139, Mr Louis Blom-Cooper Q.C. for the appellant Haw Tua Tau, inter alia,
argued that the cumulative effect of ss 188 to 195 CPC together with judicial
interpretation of s 188 in Ong Kiang Kek v. PP [1970] 1 MLRH 273; [1970]
2 MLJ 283 was to reverse the burden of proof. It was argued that the effect
is not limited to a shift in the burden of proving particular facts. At p 139,
Counsel’s submission in the alternative reads:

In Ong Kiang Kek v. Public Prosecutor [1970] 1 MLRH 273; [1970] 2 MLJ
283 the Court of Appeal decided that the wording of s 188 of the Criminal
Procedure Code meant that the trial Court was required at the close of the
prosecution case to determine whether or not on the evidence tendered by
the prosecution, if unrebutted, had established the case against the defendant
beyond a reasonable doubt. That case was wrongly decided because it
amounts to establishing that at that stage the Court is permitted to decide
that the defendant is guilty unless he calls rebutting evidence. That is not the
meaning of s 188. Announcing that the evidence appears to be accurate and
that the Court will accept it unless it is impugned is different from saying
that there is a prima facie case against the defendant. In criminal cases a
prima facie case is not the same as a case established beyond reasonable
doubt. If Ong Kiang Kek v. Public Prosecutor is right the trial Court must come
to a decision having heard only the prosecution evidence. Ong Kiang Kek’s
case was wrongly decided and in the instant case, since the defendant’s
trial was conducted in accordance with it, there was a fundamental error in
the conduct of the trial and the defendant is entitled to have his conviction
quashed. Alternatively, if Ong Kiang Kek v. Public Prosecutor was rightly
decided, then s 188 of the Criminal Procedure Code offends art 9(1) of the
Constitution by conflicting with the privilege against self-incrimination.

[264] With the greatest of respect, it is obvious that Khoo Hi Chiang could not
be correct in treating the judgment of the Privy Council as obiter dicta on the
issue of burden of poof at the close of the prosecution’s case.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 651

[265] As this is the principal basis of Khoo Hi Chiang’s decision, the conclusion
of the Supreme Court must necessarily suffer from such serious defect. Indeed
in Abdul Ghani v. PP [1984] 1 MLRA 386; [1985] 1 MLJ 93; [1984] 2 CLJ
599 the Court of Appeal in Singapore in a criminal reference, Wee Chong
Jin CJ, a great Judge that he was, effectively conceded that to all intents
and purposes, his Lordship’s ruling in Ong Kiang Kek had been overruled by
the ratio decidendi in Haw Tua Tau. Another attempt to revive Ong Kiang Kek
met with similar fate in Ng Theng Shuang v. PP [1995] 2 SLR 36 in which the
Singapore Court of Appeal declined to follow Khoo Hi Chiang. From other
common law jurisdictions, it would appear that the pronouncement in Khoo
Hi Chiang runs counter to current judicial opinion. Indeed, at the 9th Singapore
Law Review Lecture 1995 delivered by Justice MPH Rubin on Standard of Proof
Relating to Sufficiency of Evidence at Criminal Trials: Mental Gymnastics since Haw
Tua Tau [1996] 2 CLJ lxiv, his Lordship strongly concluded:

The Singapore Court of Appeal, in arriving at its decision, as it did, appeared

to have fully addressed itself of an important consideration that the test
which was under attack had not only been well-entrenched in our criminal
jurisprudence, since 1981 but the practice and philosophy enveloping the test
had served the interests of justice well for more than 20 years in Singapore.
Indeed its reasoning is supported by a considerable body of learning and
judicial pronouncements from other Commonwealth jurisdictions. Though
there are some slight variations in substance, a host of decisions from
England, Australia and New Zealand appear to support the view that ‘the
beyond reasonable doubt’ test at the close of the prosecution is inapt and
out of place: R v. Galbraith [1981] 1 WLR 1039 at 1042 (England); May v.
Sullivan [1954-55] 92 CLR 654 at 658 (Australia); Auckland City Council v.
Brailey [1988] 1 NZLR 103 (New Zealand).

[See also Yeo Tse Soon v. PP [1994] 1 MLRA 479; [1995] 3 MLJ 255; [1995]
2 CLJ 179 (Brunei)].

Conclusion On The Law

[266] For the above reasons, the case “which if unrebutted would warrant a
conviction” referred to in s 180 CPC is a prima facie case, and not a beyond
reasonable doubt case on the guilt of the accused. With the utmost humility,
the principle laid down in Khoo Hi Chiang on burden of proof at the close of
case for the prosecution should be treated as per incuriam. Under the two-
tier stage of our criminal trial, the burden imposed on the prosecution by s
180 at the close of its case is to make out a prima facie case, and it is distinct
from the burden at the conclusion of the trial under s 183 which is a beyond
reasonable doubt burden on the guilt of the accused. The burden of proof
on the guilt of the accused is on the prosecution throughout the trial and it
never shifts (Woolmington v. Director of Public Prosecutor [1935] AC 462 & 480].
To pronounce otherwise would be in violation of a cardinal principle of our
criminal justice system that an accused person must be presumed innocent
until proven guilty, not after hearing only the prosecution evidence, but at the
 Arulpragasan Sandaraju
652 v. PP [1996] 1 MLRA

conclusion of the whole trial when both sides have been heard in accordance
with the rules of natural justice. But by virtue of s 180, the accused is entitled
to an early acquittal if no prima facie case is made out against him. In my
humble opinion Khoo Hi Chiang has overlooked the distinction between
burden of proof and quantum of proof and has unnecessarily gone on a
voyage of discovery despite the plain words and hypothetical phrase used in
s 180 and in so doing was usurping the function of the legislature under the
guise of interpretation.

[267] In Vacher & Sons Ltd v. London Society of Compositors [1913] AC 107,
Viscount Haldane LC said, “... I think that the only safe course is to read
the language of the statute in what seems to be its natural sense”. But even
assuming for one moment that the language of s 180 is ambiguous and
capable of two possible constructions, the law on interpretation demands that
the one that produces a reasonable result consistent with the concept of fair
trial under the rules of natural justice must prevail. For reasons already given,
the prima facie case test should therefore be maintained and this Court should
resist accepting the guilty beyond reasonable doubt test in the middle of a
trial which inevitably involves an unjust shifting and reversal of the burden
of proof on the guilt of the accused on the defence, once the accused is called
upon to answer - a result which is unthinkable and illogical in our adversarial
system of criminal justice whatever may be one’s perception of Haw Tua Tau.
As stated by Danckwerts LJ in Artemiou v. Procopiou [1966] 1 QB 878 @ 888,
an intention to produce an unreasonable result is not to be imputed to a
statute if there is some other construction available.

[268] In the circumstances, the main ground of appeal on point of law on

burden of proof under s 180 must fail since the defence had been called on
correct principle. The learned Judicial Commissioner was correct in law in
applying the prima facie case test when calling for the appellant to enter his
defence. The only matter left for determination in this appeal is whether
having regard to the whole evidence in its totality, the prosecution has proved
the guilt of the appellant beyond reasonable doubt at the close of the whole
trial. For this purpose, it is necessary to consider the defence raised by the
appellant in the Court below.

Has The Defence Raised A Reasonable Doubt As To The Guilt Of The

Appellant?

[269] The appellant elected to give evidence on oath. There is no dispute that
the appellant was arrested by a police ambush party led by Inspector Ismail
(PW2) on 8 December 1986 at about 11.30am in a lorry No WD 5684 in the
compound of a mosquito repellant factory called Blood Protection Co (M)
Bhd at Jalan Permatang Pauh, Butterworth, Penang. He was sentenced to
death under s 39B(2). The evidence before the learned Judicial Commissioner
disclosed that the police found two bags in the cabin of the lorry, which at
the material time was driven by a Malay driver, Mohd Kabir (PW5) with the
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 653

appellant as lorry attendant. There was no dispute in the Court below that
two bags were recovered - a brown bag containing the cannabis and a yellow
bag which did not contain anything incriminating. The material dispute
which the learned Judicial Commissioner had to determine was which bag
belonged to whom. Based on testimony of prosecution witnesses, there was
sufficient evidence that the incriminating brown bag was in the control or
custody of the appellant, particularly when his personal BSN account book
was recovered from that bag, so as to attract the presumptions under s 37(d)
and 37(da) of the Dangerous Drugs Act, for the defence to be called on the
trafficking charge. In the application of the prima facie test as enunciated in
Haw Tua Tau, Ragunathan and Munusamy the learned Judicial Commissioner
was accordingly correct in law in not recording an order of acquittal under
s 180.

[270] The appellant’s defence was that on that day he was carrying the yellow
bag and not the incriminating brown bag. He met security guard Ravi (PW8)
at Ravi’s guardroom. He left the yellow bag there unattended in order to have
his breakfast at the factory canteen. As regards his BSN account book, he
explained that he was carying it in his pocket. Then for security reasons he
decided to keep it in the cabin of the motor lorry instead of in the bag. After
loading goods on the trailer of the lorry, he went to fetch his unattended
bag from the guardroom, and kept it in the lorry. Soon after, the police
came, recovered the two bags and arrested him and Mohd Kabir. He did not
know how his BSN account book came to be in the brown bag, but it is the
defence story that the appellant had been framed by someone, probably Ravi
because it was Ravi who tipped the police about the drug. Unfortunately
the nonincriminating yellow bag which the police had seized and which
the appellant had claimed to be his was not produced in Court which in
my view would invoke an adverse presumption against the prosecution
under s 114(g) Evidence Act that in the circumstances of this case, if the
material yellow bag had been produced, the appellant would have been able
to identify and prove that it was really his. There are other aspects of the
evidence highlighted by Mr Karpal Singh, particularly the fact that some
material parts of the evidence are missing from the notes of evidence due
to the inability of anyone to decipher the poor handwriting of the Judicial
Commissioner, who is no longer in service, which to my mind are sufficient
in this capital case collectively to rebut the presumption of possession on a
balance of probabilities and to raise a reasonable doubt as to the guilt of the
appellant. I would allow this appeal purely on this basis, notwithstanding the
fact that the learned Judicial Commissioner had been correct in law in calling
for the appellant to enter his defence on the prima facie test. The conviction
should accordingly be quashed and the death sentence set aside.
 Arulpragasan Sandaraju
654 v. PP [1996] 1 MLRA

Mohamed Dzaiddin Abdullah FCJ (Dissenting on standard of proof

required at end of prosecution’s case):

[271] This is an appeal from the decision of the learned Judicial Commissioner
of the Penang High Court dated 11 December 1992, who found the appellant
guilty of an offence of drug trafficking under s 39B(1) of the Dangerous Drugs
Act 1952 (the Act) and sentenced him to death under s 39B(2) of the same
Act.

[272] The appeal is against conviction and sentence. The substantive ground
of appeal is, however, on a legal point, which is, that the learned Judicial
Commissioner had seriously misdirected himself in law in relying on the
principles in Haw Tua Tau v. Public Prosecutor [1982] AC 136; Ragunathan v.
Pendakwa Raya [1981] 1 MLRA 209; [1982] 1 MLJ 139; [1982] CLJ (Rep) 63;
and Munusamy v. Public Prosecutor [1986] 1 MLRA 292; [1987] 1 MLJ 492;
[1987] CLJ (Rep) 221 in calling for the defence at the close of the case for the
prosecution.

[273] The learned Judicial Commissioner, in calling for the defence, applied
the prima facie test based on the above three cases and stated that from the
prosecution evidence, the ingredients of “possession” had been established at
the close of the case for the prosecution. His Lordship, however, suspended
in deciding on the question of the ‘credibility’ of the prosecution witnesses
until the close of the defence case. This is what he stated in his grounds of
judgment (p 211 of the Appeal Record):

Atas keterangan saksi-saksi tersebut saya memutuskan bahawa pihak

pendakwa telah membuktikan satu kes prima facie mengikut prinsip yang
dikandungi dalam kes-kes Hwa Tua Tau, Ragunathan dan Munusamy (kes-
kes yang semua pihak tahu). Adalah jelas dari keterangan-keterangan
tersebut unsur-unsur dan ciri-ciri pertuduhan tersebut iaitu milikan atau
‘possession’ oleh tertuduh telah prima facie dibuktikan pada peringkat
penutupan kes pendakwa. Walaubagaimanapun atas prinsip Hwa Tua Tau
dan kes-kes tersebut saya menggantung soalan kebolehpercayaan atau
‘credibility’ saksi-saksi pendakwa tersebut hingga penutupan kes pembelaan
dan membuat penilaian apabila mengambil kira seluruh keterangan dari
saksi-saksi pendakwa mahupun saksi-saksi pembela.

[274] The learned Judicial Commissioner then considered the defence. After
evaluating the evidence of the appellant and DW2, the witness offered by the
prosecution, he came to the conclusion that the defence had failed to raise
any reasonable doubt on the truth of the prosecution case that the appellant
was in possession of the incriminating brown bag which contained ganja, or
as to the prosecution’s case. He held that the appellant had not rebutted the
presumptions under s 37(d) and (da) read together with s 2 of the Act. In the
result, he found the appellant guilty as charged.
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 655

[275] Thus, the questions for the determination of this Court are these. First,
did the learned Judicial Commissioner direct himself correctly in law when
he held at the close of the case for the prosecution that the prosecution had
made out a prima facie case based on Haw Tua Tau principles, followed by
Ragunathan and Munusamy, that there was some evidence which was not
inherently incredible which the appellant should be called upon to answer.
Secondly, whether from the evidence, the conviction under s 39B(1) of the
Act and sentence of death under sub-section 2 of the same section were
justified.

Legal Issue

[276] Encik Karpal, learned Counsel for the appellant, had contended before
us that the learned Judicial Commissioner had applied the wrong test when
he failed to direct his mind to the principles enunciated by the Supreme Court
in Khoo Hi Chiang v. Public Prosecutor [1993] 1 MLRA 701; [1994] 1 MLJ
265; [1994] 2 CLJ 151; [1994] 1 AMR 323 which is, that at the close of the
case for the prosecution, his duty was to undertake a maximum evaluation
of the evidence to determine whether or not the prosecution has established
the charge against the appellant beyond all reasonable doubt. However, he
seemed to have amplified his argument in his written submission that the
case which if unrebutted would warrant a conviction within the provisions of
s 180, Criminal Procedure Code (the Code), must mean a beyond reasonable
doubt case.

[278] Puan Zaitun Zawiyah, for the Public Prosecutor, in her written
submission, stated that in construing s 180 of the Code, we should not use
a “beyond reasonable doubt” case or a “prima facie” case because the two
expressions were nowhere to be found in the section. She suggested that we
should follow the wordings of the section which provided for the accused to
enter his defence if a case against him had been made out (and not proved)
which if unrebutted would warrant his conviction.

[279] Frankly, I am not impressed with this submission. We are here to

decide whether the standard of proof under s 180 is a “beyond reasonable
doubt” case or a “prima facie” case and nothing more.

[280] Before Haw Tua Tau, our Courts have interpreted the words of s 180
of the Code to mean that it was the duty of the prosecution at the close of its
case to establish its case beyond reasonable doubt. See: Ong Kiang Kek [1970]
1 MLRH 273; [1970] 2 MLJ 283 CA. However, following the landmark
decision of the Privy Council in Haw Tua Tau in 1981, the duty of Judges and
Magistrates at the close of the case of the prosecution must be the following:

(The) judge must consider whether there is some evidence (not inherently
incredible) which, if he were to accept it as accurate, would establish each
essential element in the alleged offence. If such evidence as respects any
of those essential elements is lacking, then, and then only, is he justified
 Arulpragasan Sandaraju
656 v. PP [1996] 1 MLRA

in finding “that no case against the accused has been made out which if
unrebutted would warrant his conviction”, within the meaning of s 188(1).
Where he has not so found, he must call upon the accused to enter upon his
defence, and as decider of fact must keep an open mind as to the accuracy
of any of the prosecution’s witnesses until the defence has tendered such
evidence, if any, by the accused or other witnesses as it may want to call
and counsel on both sides have addressed to the judge such arguments and
comments on the evidence as they may wish to advance. (per Lord Diplock
at p 52).

[281] What then was the effect of Haw Tua Tau with regard to our s 180 of the
Code? I need only reproduce what was stated by H.R.H. Sultan Azlan Shah
(then acting LP) in Ragunathan v. Pendakwa Raya, supra, (at p 141):

Applying that principle, the learned Magistrate at the close of the prosecution
case had to determine as a question of law whether on the evidence as
adduced and unrebutted, the appellant could lawfully be convicted, that
is to say, whether there was with respect to every element in the charge
some evidence which, if accepted, would either prove the element directly
or enable its existence to be reasonably inferred. That is the question raised
in the appeal. It must be distinguished from the question of fact for ultimate
decision, which is whether on the evidence as a whole the prosecution has
proved to the satisfaction of the Court, as a tribunal of fact that the applicant
is guilty as charged.

[282] Haw Tua Tau was later followed by the Supreme Court in Munusamy
v. Public Prosecutor and much later in Junaidi bin Abdullah v. Public Prosecutor
[1993] 1 MLRA 452; [1993] 3 MLJ 217; [1993] 4 CLJ 201; [1993] 2 AMR
2209.

[283] Finally, in December 1993, a five-member panel of the Supreme Court

(yours truly included) decided in Khoo Hi Chiang that the duty of the Court
at the close of the case for the prosecution was to undertake not a minimal
evaluation of the evidence tendered by the prosecution in order to determine
whether or not the prosecution evidence is inherently incredible, ie the Haw
Tua Tau test, but a maximum evaluation of such evidence to determine
whether or not the prosecution had established the charge against the
accused beyond reasonable doubt. In short, the Court declined to follow Haw
Tua Tau, Ragunathan, Munusamy and Junaidi. Khoo Hi Chiang more or less
reinstated Ong Kiang Kek. The Court was also of the view that Lord Diplock’s
interpretation of the Singapore’s s 188(1) of the Criminal Procedure Code
was obiter dicta.

[284] Two years after Khoo Hi Chiang, Tan Boon Kean v. Public Prosecutor
[1995] 2 MLRA 28; [1995] 3 MLJ 514; [1995] 4 CLJ 456; [1995] 3 AMR
3007 emerged. The Federal Court of three Judges held that the “case”
required to be established by the prosecution under s 180 of the Code is a
“prima facie” case and not “beyond reasonable doubt” case. The Court was
of the opinion that if the “case” required to be established under s 180 was a
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 657

“beyond reasonable doubt” case, then the words “if unrebutted” and “would
warrant his conviction” would become redundant and meaningless. Further,
it was of the opinion that there was no definitive ruling in Khoo Hi Chiang that
the word “case” in s 180 was not a prima facie case.
[285] It is against the background of the conflicting ratio decidendi of Khoo Hi
Chiang and Tan Boon Kean that this Court is asked to express its opinion on
the meaning of s 180 of the Code.
[286] Section 180 states:
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 on his defence.

[287] Thus, the primary question of law for our determination is: What is
the standard of proof required from the prosecution under s 180? Does the
case ‘which if unrebutted would warrant his conviction’ mean a “beyond
reasonable doubt” case or a “prima facie” case? After a careful reading of the
draft judgments of my brothers, Mohd Azmi and Edgar Joseph Jr FCJJ and
for reasons which I shall give shortly, I am of the opinion that it is a prima
facie test, in a sense that there is some evidence, not inherently incredible,
which constitutes a prima facie case. I must, of course, concede that the words
“prima facie” appear nowhere in s 180 or in the Code. I also note that the
effect of these words has been discussed elsewhere. This means that I agree
with the analysis and reasonings of my learned brother, Mohd Azmi FCJ,
in his draft judgment, and the inevitable conclusion that the case “which if
unrebutted would warrant a conviction” found in s 180 means a prima facie
case. Short of repeating what has been said by my learned brother in his draft,
I need only say that I concur with his opinion on the legal issue involved in
this appeal, which I find was supported by a line of authorities, both local and
from other common law jurisdictions. Of course, this is not the only reason.
[288] My second reason is this. Since Khoo Hi Chiang, there have been at
least two decisions, one from Singapore and the other from Brunei, which
disagreed with Khoo Hi Chiang. The Singapore case of Ng Theng Shuang v. PP
[1995] 2 SLR 36 has reiterated that the test propounded by Lord Diplock in
Haw Tua Tau remained the proper test applicable to the Singapore’s s 189(1)
CPC (the same as our s 180 of the Code). I have had also the benefit of
reading the following decisions of the Singapore Courts: Sim Ah Cheok v. PP
[1991] 1 MLRA 23; [1991] 2 MLJ 353, PP v. Gan Lim Soon [1993] 3 SLR 261;
and PP v. Wong Wai Hung [1993] 1 SLR 927.
[289] After a careful reading of the above cases, I must admit that I have
been greatly persuaded by their approach and reasonings with respect to the
question of the standard of proof at the close of the case for the prosecution.
I whole heartedly agree with the practical approach of the learned Chief
Justice of Singapore when he said in PP v. Gan Lim Soon, at p 262:
 Arulpragasan Sandaraju
658 v. PP [1996] 1 MLRA

What these principles mean is that if the Judge comes to the conclusion after
hearing the prosecution’s evidence that there is evidence (not inherently
incredible) which constitutes a prima facie case which the accused should be
called upon to answer, he must call the accused to enter upon his defence.

[290] Secondly, I find the Singapore Court of Appeal Ng Theng Shuang had
carefully addressed itself on this crucial issue and gave reasons for disagreeing
with Khoo Hi Chiang. Karthigesu JA, speaking for the Court, stated (at p 41):

It seems to us that the Malaysian Supreme Court laid emphasis on the words
‘would warrant a conviction’ in s 189(1) of the Criminal Procedure Code
thus ignoring the words ‘if unrebutted’ as this Court had done in Ong Kiang
Kek v. PP and came to the conclusion that only proof beyond a reasonable
doubt would warrant a conviction.

[291] His Lordship, therefore, rejected the maximum evaluation test and
concluded:

We respectively agree with Lord Diplock that the crucial words in s 189(1)
of the Criminal Procedure Code, which deals with the procedure to be
followed at the close of the prosecution’s case, are ‘if unrebutted’.

[292] Then, reaffirming what was stated in Sim Ah Cheok, the learned Judge
stated:

Clearly, s 189(1) calls for a two-stage process in a criminal trial and this
can only be achieved if a minimum evaluation of the evidence is made at
the close of the prosecution’s case and this of necessity makes the question
that the Court has to ask itself at the close of the prosecution’s case a purely
hypothetical one.

[293] Common sense also tells me that this two-stage process in criminal
trials is in accord with our adversarial system of fair trial.

[294] Incidentally, the above cases have also persuaded me to change my

mind after sitting on the Khoo Hi Chiang panel. The other reason being that at
that point of time, I was also influenced by the fact that it was said that Lord
Diplock’s principles in Haw Tua Tau was obiter dicta. However, it has now
been shown that it was the ratio decidendi of the case. See: Ruben J’s article:
Standard of Proof Relating to Sufficiency of Evidence at Criminal Trials: Mental
Gymnastics Since Haw Tua Tau [1996] 2 CLJ lxiv. It must also be remembered
that it is not uncommon for Judges, for good or better reasons, to change their
minds or views on certain legal issues. To me, I call this judicial creativity, a
function which we, the Judges, perform in the development of the law. The
law must not be seen to be static.

[295] Returning to the appeal, based on my opinion on the standard of proof

required from the prosecution at the close of its case, which is, a prima facie
test, it is my finding that the learned Judicial Commissioner had considered
 Arulpragasan Sandaraju
[1996] 1 MLRA v. PP 659

the prosecution evidence and came to a correct conclusion that there was
evidence not inherently incredible to constitute a prima facie case within the
principles of Haw Tua Tau, Ragunathan and Munusamy.

On The Evidence

[296] Upon considering the evidence as a whole, in particular that of the

appellant and the main prosecution witness, Ravi Shankar (PW8), I am
satisfied that the appellant had created a reasonable doubt with respect to the
issue of possession of 1396.7 grammes of ganja and in view of the failure of
the learned Judicial Commissioner to make any specific finding of trafficking
in the said ganja under s 37(da) of the Act, the conviction and sentence
cannot be sustained.

[297] In the result, this appeal is allowed, conviction quashed and the sentence
of death it set aside. The appellant is hereby acquitted and discharged.
 Arulpragasan Sandaraju
660 v. PP [1996] 1 MLRA

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