CHAPTER 10 - BURDEN AND STANDARD OF PROOF

10.1 DIFFERENCE BETWEEN LEGAL AND EVIDENTIAL BURDEN

Question 1(c) July 2011

What is the difference between the “legal burden of proof” and the “evidential burden of
proof?” (8 marks)

Question 3(b) July 2008

What is the difference between the “legal burden of proof’ and the “evidential burden of
proof”? (5 marks)

ANSWER OUTLINE
There are two types of burdens which arise in the course of a trial, namely, the legal burden of proof
and the evidential burden.

The legal burden of proof

The legal burden of proof is the obligation as a matter of law to adduce evidence to the satisfaction of
the court in order to establish the existence or non-existence of a fact in issue. It should be noted that
each fact in issue has to be proved separately, despite the generalization that a prosecutor or plaintiff
has to prove his case.

The party bearing the legal burden has to satisfy the court to the required standard of proof as to the
existence or non-existence of the fact in issue. It is not sufficient for him to just adduce evidence. The
legal burden is only discharged if the fact in issue is established or proved.

In order to satisfy the legal burden, the party has to present evidence and raise arguments. The party
who has the legal burden has to in his attempt to discharge that legal burden satisfy an evidential
burden by raising some evidence and arguments as to the existence of the facts in issue. In this sense,
he can be said to have an evidential burden. Sometimes, a fact may be established on the basis of
evidence led by the opponent.

In Jayasena [1970] 1 All ER 219, Lord Devlin said that the term ‘proved’ in section 3 appears to refer
to the legal burden of proof and not the evidential burden.

The question as to who bears the burden of proof is a question of law. Whether a party in any
proceeding has discharged this legal burden is a question of fact. An error by the courts as to the
burden of proof is a ground of appeal.

The evidential burden

The evidential burden is the duty of producing evidence, whether at the beginning of a case or at any
later moment throughout the trial or discussion. The evidential burden is satisfied merely by
adducing evidence. In Jayasena v R (supra), the Privy Council totally rejected the term “evidential
burden of proof” and said it was a contradiction in terms as the evidential burden could be
discharged by evidence which fell short of proof.

The distinction between the legal and evidential burden is an important one particularly with
reference to the burden on the accused.

(a) Where the accused only has an evidential burden – all he has to do is to adduce some
evidence by cross-examination of prosecution witnesses or defence witnesses including himself
hoping to create a doubt in any element of the prosecution’s case in the mind of the judge which
results in the prosecution having failed to satisfy the judge of that fact beyond reasonable doubt.

If the accused is not asking for any particular defence, the accused does not bear a legal burden.
He only bears an evidential burden as stated in Nagappan a/l Kuppusamy. Here all he has to do is to
adduce or point to some evidence hoping to create a doubt in any element of the prosecution’s case
in the mind of the judge which results in the prosecution having failed to satisfy the judge of that fact
beyond reasonable doubt.

Where the accused has a legal burden, he has to produce enough evidence to prove to the judge on
the balance of probabilities that he is entitled to the defence. This would generally apply where the
accused was claiming a defence or where he had to rebut a presumption.

In civil cases:

(a) If the defendant is not asking for any particular defence – the defendant has no legal
burden. He would only have an evidential burden. Here the defendant adduces evidence
to try and prevent the plaintiff from proving his case on the balance of probabilities i.e.
to show that the probabilities are equal or that the plaintiff’s version is less probable.
(b) If the defendant is claiming a particular defence, for example, contributory
negligence or volenti non fit injuria, the defendant would have a legal burden to prove it
on the balance of probabilities. See Section 102 and Section 103.

10.2 DIFFERENCE BETWEEN BURDEN OF PROOF AND

STANDARD OF PROOF

Question 2(c) July 2014

Discuss the difference between the burden of proof and standard of proof. (9 marks)

Question 3(a) September 2002

Explain the difference between the burden of proof and the standard of proof. (12 marks)

SUGGESTED ANSWER
Burden of proof

The rules allocating the burden of proof determine who has to prove the facts in issue in a case. The
burden of proof is the obligation as a matter of law to adduce evidence to the satisfaction of the court
in order to establish the existence or non-existence of a fact in issue. [It should be noted that each
fact in issue has to be proved separately, despite the generalization that a prosecutor or plaintiff has
to prove his case.] The main sections on the burden of proof are sections 101 to 114.

The party bearing the burden of proof has to satisfy the court to the existence or non-existence of the
fact in issue. It is not sufficient for him to just adduce evidence. The burden of proof is only
discharged if the fact in issue is established or proved.

The evidential burden on the other hand, is the duty of producing evidence, whether at the beginning
of a case or at any later moment throughout the trial or discussion. In Jayasena, Lord Devlin said
that the term ‘proved’ in section 3 appears to refer to the legal burden of proof and not the evidential
burden. In Jayasena v R, the Privy Council totally rejected the term “evidential burden of proof’ and
said it was a contradiction in terms as the evidential burden could be discharged by evidence which
fell short of proof.

The question as to who bears the burden of proof is a question of law. Whether a party in any
proceeding has discharged this legal burden is a question of fact. An error by the courts as to the
burden or standard of proof is a ground of appeal.

The following are some of the main provisions governing the burden of proof.

i. Section 101 which applies in civil and criminal cases provides that whoever desires to
obtain judgment based on certain facts must prove them and is said to bear the burden
of proof in relation to those facts.
ii. Section 102 provides that the burden of proof lies on the person who would fail if no
evidence at all were given on either side on that issue.
iii. Section 103 provides that the burden of proof on any particular fact lies on the person
who wishes the court to believe in its existence.
iv. Section 104 provides that the burden of proving the preconditions for the admissibility
of certain pieces of evidence is placed on the party who wishes to give the evidence.
v. Section 105 provides that the accused has the burden of proving the existence of
circumstances bringing the case within any of the exceptions in the Penal Code or any
exception or proviso in any law defining the offence
vi. Section 106 provides that when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.
Standard of proof

The rules on the standard of proof provide for the quantum or amount of proof required to discharge
the burden of proof. The question of standard of proof required only comes into play once it has been
determined who has the burden. While the definition of ‘proved’ in section 3, attempts to provide for
the standard of proof, the Privy Council in PP v Yuvaraj adopted the common law standards saying
that the Act was ambiguous but that the legislature could not have intended to depart from the
common law standards.

The standards were clarified by Denning J in Miller v Minister of Pensions. On the criminal standard,
Denning J. said “it need not reach certainty, but it must carry a high degree of probability. Proof
beyond reasonable doubt does not mean proof beyond the shadow of a doubt.” As to the civil
standard, Denning J. said that “if the evidence is such that the tribunal can say, ‘We think it more
probable than not,’ the burden is discharged, but if the probabilities are equal, it is not.”

The standard of proof applicable will depend on which party which bears the burden of proof. In
criminal cases, the prosecution has to prove the facts in issue beyond reasonable doubt in order to
discharge their burden of proof - Mat v PP, PPv Saimin, Mohamed Radhi. Whereas, when the
accused has a legal burden to prove or disprove a fact in issue, he only has to do so on the balance of
probabilities - PP v Yuvaraj. In civil cases, the plaintiff and defendant only have to discharge their
legal burden on a balance of probabilities.

As for an allegation of fraud in a civil case, the recent Federal Court decision in Sinnaiyah & Sons
Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584, held that the applicable standard is the balance
of probabilities. The Federal Court held that Yong Tim v Hoo Kok Cheong was no longer good law
and the principles as pronounced in Ang Hiok Seng and Lee You Sin v Chong Ngo Khoon despite
applying the civil standard to a certain extent were also no longer the law.
An allegation of forgery only has to be proved on the balance of probabilities – Adorna Properties v
Boonsom Boonyanit.

Question 3(a) August 2016

(a) Discuss the burden and standard of proof in civil and criminal cases. (12.5 marks)

Question 1(a) November 2018

Discuss burden and standard of proof in civil and criminal cases. (15 marks)

10.3 BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES –

SECTION 101 – BURDEN ON THE PROSECUTION

Question 2(a) October 2015

You are acting for the appellant in this case. The appellant was charged with theft and
alternatively with dishonestly retaining stolen property. He gave evidence and called witnesses
in his Defence at the end of which he was convicted because ‘on the whole’ the learned
magistrate was ‘unable to believe the Defence’.

What will be your argument before the High Court Judge to show that the learned
magistrate has misdirected himself? (8 marks)

ANSWER OUTLINE
In Mat v PP (1963), the appellant was charged with theft and alternatively, with dishonestly
retaining stolen property. He gave evidence and called witnesses in his defence, but he was convicted
because “on the whole” the learned Magistrate was unable to believe the defence. On appeal, the
conviction was quashed. Suffian J said the proper approach was this:

1. If you accept the explanation given by or on behalf of the accused, you must of course acquit
but,
2. This does not entitle you to convict if you do not believe the explanation, for he is entitled to an
acquittal if he raises in your mind a reasonable doubt as to his guilt, as the onus of proving his
guilt lies throughout with the prosecution.
If upon the whole evidence you are left in a real state of doubt, the prosecution has failed to satisfy
the onus of proof which lies upon it.

In PP v Saimin [1971], three accused were charged with theft. At the end of the prosecution’s case,
the Magistrate ruled that there was a case to answer not because he was satisfied with the
prosecution but because “I want the accused to explain for themselves”. After hearing the accused,
the Magistrate convicted them saying he was partially satisfied that the charge had been proved
since the accused persons have not given any reasonable explanation as to the charge against them.
Sharma J called for the records of the case and quashed the conviction. He said that, “The proof of the
case against the accused depends for its support not upon its absence or weaknesses of the
explanation on his part but on the positive affirmative evidence of his guilt by the prosecution.” The
learned judge emphasized that falsity of the defence did not relieve the prosecution from proving its
case beyond reasonable doubt.

Here the appellant client was convicted because ‘on the whole’ the learned magistrate was ‘unable to
believe the Defence’. The decisions in Mat v PP and PP v Saimin make it clear that it is not for the
accused to prove his innocence and the accused cannot be convicted just because the Magistrate does
not believe his explanation as the onus of proving his guilt lies throughout with the prosecution.

Question 5 October 2005

James is charged with murdering his best friend, Jimmy. Before the killing of Jimmy, James has
been regularly seeing a psychiatrist, Dr. Quek, for the past two years. Dr. Quek has diagnosed
James as suffering from schizophrenia, a mental disease. According to Dr. Quek, James had
“heard” voices that to save his own life, James must sacrifice the life of his best friend, Jimmy.

The prosecution has obtained a court order to detain James in a government hospital to be
observed by a government psychiatrist, Dr. Ali. After observing James for some time, Dr. Ali
gave a report that James was of sound mind at the time James killed Jimmy.

With reference to relevant statutory provisions and decided cases, answer all the
following questions and give your reasons:

(a) who has the overall legal burden of proof in James’ trial and what is the overall
standard of proof? (10 marks)
(b) who has the legal burden to prove the defence of unsoundness of mind in James’
trial and what is the standard to prove such a defence? (10 marks)

ANSWER OUTLINE

(a) who has the overall legal burden of proof in James’ trial and what is the overall standard
of proof?
1. Discuss s.101 — Section 101 provides that whoever wishes to obtain a judgement
based on certain facts which he asserts has the burden of proving those facts. Hence
where the prosecution charge an accused for an offence, it is for the prosecution to
prove the elements of the offence (here the actus reus and the mens rea) if they wish to
obtain a conviction.
2. Illustration (a) makes it clear that s.101 applies to criminal cases.
[Note - Section 102 which provides that the burden of proof lies on the person who
would fail if no evidence at all were given on either side on that issue would also place
the burden of proving the elements of the offence on the prosecution. Section 102 has
been said to be a second test for determining who bears the burden.]
3. The decisions in Mat v PP and PP v Saimin make it dear that the burden remains on the
prosecution throughout the duration of the trial.
4. The burden placed by s.101 is clearly a legal burden. In Jayasena, the Privy Council in
interpreting the meaning of burden of proof in s.105 decided that proof when
interpreted in line with the definition of ‘proved’ in section 3 referred to a legal burden.
 5. Hence P bears the overall legal burden of proving that James murdered Jimmy.
6. As for the standard of proof, in PP v Yuvaraj, the Privy Council said that the Evidence
Act 1950, could not have intended to depart from the well-established common law
standards. Hence to discharge the burden the prosecution has to prove the facts in issue
beyond reasonable doubt. The decisions in Mat v PP and PP v Saimin make it clear that
the prosecution has to prove the facts in issue beyond reasonable doubt.
7. In Miller v Minister of Pensions, the Denning J. said that beyond reasonable doubt does
not mean beyond a shadow of doubt but it must carry a high degree of probability.

(b) who has the legal burden to prove the defence of unsoundness of mind in James’ trial
and what is the standard to prove such a defence? (10 marks)
See section 105 below for answer.

Question 3(b) September 2002

Laju Gaya is charged in the Sessions Court with an offence under section 5 of the Motor Safety
Act which reads as follows:

“A person who takes part or assists in a competition (other than a race of speed) involving the
use of motor vehicles on a toll highway shall be guilty of an offence unless the competition is
approved by the National Highway Board and is conducted in accordance with conditions
imposed by the Board.”

In his cautioned statement, Laju Gaya admits that he took part in a race involving the use of a
vehicle on the highway but says that:

(a) it was a speed race;

(b) he was not driving a motor vehicle; and
(c) he was not on a toll highway.
At the trial, who will bear the burden of proof of each of these issues and what is the
standard of proof in respect of each issue. (13 marks)

SUGGESTED ANSWER
In his cautioned statement, Laju Gaya admits that he took part in a race involving the use of a vehicle
on the highway but says that:

(a) it was a speed race

(b) he was not driving a motor vehicle
(c) he was not on a toll highway
Here Laju Gaya appears to be denying the ingredients of the offence which are for the prosecution to
prove. Section 101 provides that whoever wishes to obtain a judgment based on certain facts which
he asserts has the burden of proving those facts. Hence where the prosecution charge an accused for
an offence, it is for the prosecution to prove the elements of the offence in order to obtain a
conviction. Illustration (a) makes it clear that s.101 applies to criminal cases. Here the prosecution
will have the legal burden of proving:

(a) that it was not a race of speed,

 (b) that he was driving a motor vehicle
(c) that he was on a toll highway
Section 106 will not apply with regard to the above elements as these are clearly elements which are
to be proved by the prosecution. Section 106 cannot be used to place the burden of proving the
ingredients of the offence on the accused as these are clearly for the prosecution to prove. In Mary
Ng, where the accused had been charged for deceit, the court held that it was for the prosecution to
prove the deceit and not for the accused to prove that there was no deceit. In Attygalle, two doctors
were charged for performing an illegal operation. Only the two accused persons and patient who had
been sedated and was unconscious were in the room. The trial judge said that whether an illegal
operation took place or not is a fact especially within their own knowledge. The Privy Council said
the trial judge was clearly wrong. It was for the prosecution to prove that an illegal operation took
place and not for the accused to prove that it did not.

[Why does section 106 not apply here?] Section 106 may have applied if Laju Gaya had accepted all
the ingredients of the offence mentioned above but claimed that the competition was approved by
the National Highway Board. Here Laju Gaya may have had to prove this if it is a fact especially within
his knowledge. See Lim Kwai Thean.

Hence here the prosecution will bear the legal burden of proving the 3 ingredients of the offence
denied by Laju Gaya. As for the standard of proof, the decisions in Mat v PP and PP v Saimin make it
clear that the prosecution has to prove the facts in issue beyond reasonable doubt and the burden of
proving the accused guilt remains on the prosecution throughout the duration of the trial. In Miller v
Minister of Pensions, the Denning J. said that beyond reasonable doubt does not mean beyond a
shadow of doubt but it must carry a high degree of probability.

10.4 BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES –

SECTION 105 - WHERE ACCUSED CLAIMS A DEFENCE IN
THE PENAL CODE OR OTHER LAW

Question 5(b) October 2005

James is charged with murdering his best friend, Jimmy. Before the killing of Jimmy, James has
been regularly seeing a psychiatrist, Dr. Quek, for the past two years. Dr. Quek has diagnosed
James as suffering from schizophrenia, a mental disease. According to Dr. Quek, James had
“heard” voices that to save his own life, James must sacrifice the life of his best friend, Jimmy.

The prosecution has obtained a court order to detain James in a government hospital to be
observed by a government psychiatrist, Dr. Ali. After observing James for some time, Dr. Ali
gave a report that James was of sound mind at the time James killed Jimmy.

With reference to relevant statutory provisions and decided cases, answer all the
following questions and give your reasons:

(a) who has the overall legal burden of proof in James’ trial and what is the overall
standard of
proof? (10
marks)
(b) who has the legal burden to prove the defence of unsoundness of mind in James’
trial and what is the standard to prove such a defence? (10 marks)

SUGGESTED ANSWER
(a) See section 101 above for answer
(b) who has the legal burden to prove the defence of unsoundness of mind in James’ trial
and what is the standard to prove such a defence? (10 marks)
1. Here James is claiming the defence of insanity, which is an exception in the Penal Code.
2. Section 105 provides that the burden of proving the existence of circumstances
entitling him to the exception is on him.
3. In Jayasena, the Privy Council made it clear that the word ‘burden of proof’ used in the
section and ‘proved’ in section 3 make it clear that the accused would have a legal
burden to prove his defence.
4. In Kenneth Fook Mun Lee, the court said that for insane automatism, section 105 placed
the legal burden on the accused. Hence James would have the legal burden of proving
the defence of unsoundness of mind.
5. Where the accused has a legal burden he only has to discharge it on the balance of
probabilities - PP v Yuvaraj.
6. Hence James only has to prove his insanity on the balance of probabilities. What this
means is that James will have to show that more probable than not he was insane when
the offence was committed - see explanation of balance of probabilities given by Lord
Denning in Miller v Minister of Pensions.
7. Extra point for discussion - Insanity is a defence which may affect an element of the
prosecution’s case. Hence we want to consider the dictum of Soertz J
in Chadrasekara which was approved obiter by the Privy Council in Jayasena. Here
there is a possibility that the evidence that James tenders to prove his defence might
also go to create a doubt in an element of the prosecution’s case. Hence even if James
does not prove his defence he might succeed in the sense that he has prevented the
prosecution from proving its case. Note however that this does not change the
burden and standard of proof with regard to the defence of insanity.

Question 7(b)(i) & (ii) January 2003

Z has been charged with the offence of causing hurt to A. Z claimed that he was not of sound
mind at the time of causing hurt to A. In respect of the defence of unsoundness of mind, advise
Z–

(i) who has the legal burden of proof; (5 marks)

(ii) what is the standard of proof; and (5 marks)
(iii) what kind of evidence is needed to prove such a defence. (3 marks)

SUGGESTED ANSWER

(i) Here Z is claiming the defence of insanity, which is an exception in the Penal Code. Section 105
provides that the burden of proving the existence of circumstances entitling him to the
exception is on him. In Jayasena, the Privy Council made it clear that the words ‘burden of
 proof’ used in the section and ‘proved’ in section 3 make it clear that the accused would have a
legal burden to prove his defence. In Kenneth Fook Mun Lee, the court said that for insane
automatism, section 105 placed the legal burden was on the accused. Hence here Z would have
the legal burden of proving the defence of unsoundness of mind.
(ii) Where the accused has a legal burden the accused only has to discharge it on the balance of
probabilities –PP v Yuvaraj. Hence Z only has to prove his insanity on the balance of
probabilities. What this means is that Z will have to show that more probable than not he was
insane when the offence was committed. – see explanation of balance of probabilities given by
Lord Denning in Miller v Minister of Pensions.
(iii) Section 45 provides that when the court has to form an opinion upon a point of ‘science’ the
opinions upon that point of persons specially skilled (experts) in that area of ‘science’ are
relevant. Illustration (b) to section 45 makes it clear that expert opinion evidence is allowed
on the issue of insanity. Hence Z should tender evidence from psychiatrists to prove his
insanity. In Baharom the court drew an adverse inference against the accused for failing to call
certain expert witnesses who could have given evidence on the defence of insanity which he
was claiming.

Question 2(b) July 2014

Mannix is accused of the murder of Robert and charged under section 302 of the Penal Code.
Mannix alleges that as a result of Robert’s actions and words he was seized by grave and
sudden provocation and as a result was deprived of the power of self-control.

Discuss with reference to the provisions of the Evidence Act 1950 and relevant cases the
burden of proof on Mannix and how he is to discharge the burden? (8 marks)

SUGGESTED ANSWER
Here Mannix is claiming the defence of provocation, which is an exception in the Penal Code. Section
105 provides that the burden of proving the existence of circumstances entitling him to the exception
is on him. In Jayasena, the Privy Council made it clear that the words ‘burden of proof’ used in the
section and ‘proved’ in section 3 make it clear that the accused would have a legal burden to prove
his defence. In Ikau Anak Mail v PP [1973] 2 MLJ 153 the Federal Court followed Jayasena v R, the
court said that for provocation, section 105 placed the legal burden was on the accused. Hence here
Mannix would have the legal burden of proving the defence of provocation.

Where the accused has a legal burden the accused only has to discharge it on the balance of
probabilities - PP v Yuvaraj. Hence Mannix only has to prove provocation on the balance of
probabilities. What this means is that Mannix will have to show that more probable than not he was
provoked when the offence was committed. See explanation of balance of probabilities given by Lord
Denning in Miller v Minister of Pensions.

Question 3(a) July 2008

John is charged with the murder of Michael. According to the bartender (a prosecution
witness) John and Michael were sitting next to each other at the bar when suddenly John
punched Michael. Michael then fell over and hit his head against the floor and died almost
 instantly. However, according to John, it was Michael who hit him first causing John to retaliate
with a punch. Richard, a bystander, is prepared to testify that Michael said “at least I landed the
first blow” just before he died. Finally, John says that he had no intention to cause any serious
harm to Michael, let alone cause his death.

Discuss the burden of proof in this case. (20 marks)

SUGGESTED ANSWER
This question requires a discussion on:

• The burden and standard of proof on the prosecution - see Question 5(a) October 2005
above.
• The burden and standard of proof on the defence with regard to self-defence (based on
the dying declaration).
• What is the significance of the fact that the defendant said that he had no intention to
hurt the deceased? Could we discuss accident? What is the significance of Soertz J.
dictum in Chandrasekara? See answer to Question 5(b) October 2005 above.
[Have discussed the standard of proof although the question does not specifically mention the
standard of proof.]

Additional Sample Question – section 101 and section 105

Question 1(a) July 2011

Wong and Ng are neighbours who do not get along very well. Ng is constantly complaining that
Wong’s pet dog makes too much noise. One evening when both Wong and Ng were out in their
gardens, Wong and Ng had an argument over the leaves from Wong’s tree that kept falling into
Ng’s garden. The two (2) men were arguing over the common fence when suddenly Ng threw a
punch at Wong and hit him in the face. Wong fell over and after getting up, quickly went into his
home to attend to his bleeding nose.

Wong lodges a police report and Ng is charged for assault. At the trial, Ng testifies that Wong
had threatened to hit him first with a stick.

Chong is another neighbour who was walking by when the incident happened. He is also called
as a witness by the prosecution.

Discuss the burden of proof in this case. (12 marks)

10.5 BURDEN AND STANDARD OF PROOF IN CIVIL CASES –

section 101

Question 4(b)(i) September 1995

Mrs. Singh is suing the Intra Bus Co. for damages resulting from the death of her husband,
Mr.Singh, who died in an accident while he was travelling on the company’s coach on a holiday
 to Cameron Highlands in July 1995.

Discuss the following issues:

What is the burden and standard of proof? (5 marks)

ANSWER OUTLINE

1. Asked to discuss the burden and standard of proof in a negligence case.

2. Here Mrs. Singh is suing the Intra Bus Co. for negligence.
3. Section 101 provides that if Mrs.Singh wants to obtain a judgement, she has to prove all the
facts in which the judgement is based.
[Note - Section 102 which provides that the burden of proof lies on the person who would fail
if no evidence at all were given on either side on that issue would also place the burden of
proving the elements of the offence on the prosecution. Section 102 has been said to be a
second test for determining who bears the burden.]
5. In Jayasena, the Privy Council made it clear that the words in ‘burden of proof’ used in section
105 and ‘proved’ in section 3 refer to a legal burden. The same would apply to the words
‘burden of proof’ in s.101 and hence Mrs. Singh will have a legal burden,
6. As to the standard of proof, Mrs. Singh will have to discharge the burden of proof on the
balance of probabilities as stated in PP v Yuvaraj.
7. In other words, Samy will have to prove that more probable than not the defendants were
negligent. - Miller v Minister of Pensions.

Question 7(a) & (b) July 2013

Worldnex Nasional Bhd. (“Worldnex”) is in the business of venture capital investment. Sharul
was employed as the Chief Executive Officer of Worldnex. However, as a result of internal
politics and a dispute with the Board of Directors, Sharul tendered his resignation and left the
company.

Several months later, at the instigation of one of the disgruntled Board Members, Worldnex
commenced a civil suit against Sharul claiming for loss and damages that Worldnex allegedly
suffered as a result of a venture capital investment in a company calledDollarOne Sdn. Bhd.
(“DollarOne”). In its Statement of Claim, Worldnex alleged that Sharul had negligently and/or
in breach of his duties to the company, approved the investment without the authority of the
Board of Directors.

In Sharul’s Defence, he pleaded that he had in fact obtained the approval of the Board of
Directors for the investment in DollarOne. According to Sharul, the proposed investment was
presented to the Board of Directors sometime in December 2010 and was approved in
accordance with standard office practice and policy.

At the trial, Worldnex did not produce any of the minutes of the Board of Directors meeting,
including that for December 2010. In his evidence, Sharul explained that he did not have a copy
of the minutes but stated that these documents would be in the records of Worldnex.

At the close of trial, the learned Judge asked you, as counsel, to deal with the following issues in
 your submission:

(a) What is the standard of proof applicable? (5 marks)

(b) Who has the burden to prove that the Board of Directors had, or had not, approved
the investment in DollarOne? (12 marks)

SUGGESTED ANSWER

(a) What is the standard of proof applicable? (5 marks)

[Note - Although the question asks for the standard of proof applicable we are also
considering the burden of proof.]
Here, Worldnex alleged that Sharul had negligently and/or in breach of his duties to the
company, approved the investment without the authority of the Board of Directors. The issue
here is the burden and standard of proof in a civil case for negligence and breach of duty.

Section 101 provides that whoever desires any court to give judgment based on the existence
of facts which he asserts, has the burden of proving that those facts exist. The term ‘burden of
proof’ and the definition of ‘proved’ in section 3 as interpreted by the Privy Council
in Jayasena make it clear that the burden placed by section 101 is a legal burden. Hence
section 101 places on the plaintiff the legal burden of proving all the facts which are necessary
for him to obtain judgment against the defendant. See illustration (b). [It should be noted that
in civil cases the pleadings will determine what is in
issue.]

As for the standard of proof, since we have adopted the common law standards, the plaintiff
will have to prove his case on the civil standard i.e. the balance of probabilities. The civil
standard was explained as follows by Denning J in Miller v Minister of Pensions, “If the
evidence is such that the tribunal can say, ‘We think it more probable than not,’ the burden is
discharged, but if the probabilities are equal it is not.
(b) Who has the burden to prove that the Board of Directors had, or had not, approved the
investment in DollarOne? (12 marks)
Worldnex, the plaintiff has alleged in the Statement of Claim that Sharul, Worldnex’s former
CEO. (the defendant) had approved the venture capital investment in a company called Dollar
One Sdn Bhd without the authority of the Board of Directors. It should be noted that the mere
approval of the investment is not a tortious wrong. It is only a wrong, a negligence or a breach
of duty where such approval was done without the approval of the board of directors. Hence
the approval is an element of the tort / breach.
Since the plaintiff is alleging that the defendant approved the venture without the authority of
the Board of Directors, it is for the plaintiff to prove it. Section 101 provides that whoever
desires any court to give judgment based on the existence of facts which he asserts, has the
burden of proving that those facts exist. Hence the Plaintiff will have to prove that the Board of
 Directors had not approved the investment. Where it is an element of the tort, failure by the
plaintiff to prove that the Board of Directors had not approved the investment would be
tantamount to the plaintiff not discharging his burden of proof.
Section 102 provides that the burden of proof in a suit or proceeding lies on the person who
would fail if no evidence at all were given on either side. On the facts, if neither, the plaintiff or
defendant adduce evidence on the absence or existence of the approval, the plaintiff’s claim
will fail.
[Cannot use section 103 to place the burden of proving the particular fact that the Board of
Directors had on the defendant as it is an element of the tort which the plaintiff has to prove.
Both parties cannot have the burden to prove the existence or absence of the same fact.]
How could the P prove the absence of any approval?

- Provide to the court and D access to records all the modes in which approval can be
granted.
- Get the board of directors to testify that none of them approved such a resolution
- Get the company secretary to testify that no such resolution was passed

Question 3(a) July 2015

Shortcut Development Sdn. Bhd. (‘Shortcut”) engaged Tidakapah Contractors Sdn. Bhd.
(“TCSB”) to construct a ten (10) storey building. Shortcut discovered defects in TCSB’s
structural works and immediately terminated their building contract with TCSB. TCSB claims
that they have carried out structural works on the building in accordance with the plans and
drawings of Shortcut’s consultant engineers, Semuaboleh Engineers Sdn. Bhd. (“SESB”).
Iskandar, the engineer who prepared the plans and drawings is no longer employed by SESB.
TCSB has commenced legal action against Shortcut for breach of contract and wrongful
termination of the contract and further claims for loss and damages. In its defence, Shortcut
states that TCSB has failed to construct the building in accordance with the plans and drawings
of SESB and that there was a stop work notice issued by Muda Bin Sokong from Majlis
Perbandaraan Manatempat. However, the original copy of the stop work notice has been
destroyed. Shortcut only has a photocopy of the notice. Muda Bin Sokong is now overseas
pursuing his studies.

Advise Shortcut:

On the burden and standard of proof to establish its defence against TCSB. (10 marks)

ANSWER OUTLINE

Facts:
• Shortcut terminates the contract because they discovered defects in the structural works done
by TCSB.
• TCSB claims that they have carried out structural works on the building in accordance with
the plans and drawings of Shortcut’s consultant engineers, SESB.
• TCSB has commenced legal action against Shortcut for breach of contract and wrongful
termination of the contract and further claims for loss and damages. (plaintiff)
• In its defence, Shortcut states that TCSB has failed to construct the building in accordance with
the plans and drawings of SESB and that there was a stop work notice issued by Muda Bin
Sokong from Majlis Perbandaraan Manatempat. (defendant)

On the burden of proof to establish its defence against TCSB.

The issue turns on who bears the burden of proving whether the structural works was/was not built
in accordance with the plans and drawings.

TCSB, the plaintiff has alleged in the Statement of Claim that Shortcut, (the defendant) had
wrongfully terminated their contract. Since the plaintiff is alleging that that they have carried out
structural works on the building in accordance with the plans and drawings of Shortcut’s consultant
engineers, SESB, it is for the plaintiff to prove it. Section 101 provides that whoever desires any court
to give judgment based on the existence of facts which he asserts, has the burden of proving that
those facts exist. Hence the Plaintiff will have to prove that they had performed their obligations
under the contract and that there were no grounds for the Defendant Shortcut to terminate such
contract. Where it is an element of the cause of action, failure by the plaintiff to prove that the
plaintiff has performed their obligations under the contract would tantamount to the plaintiff not
discharging his burden of proof.

Section 102 provides that the burden of proof in a suit or proceeding lies on the person who would
fail if no evidence at all were given on either side. On the facts, if neither the plaintiff nor defendant
adduce evidence on the compliance or non-compliance with the drawing and plans, the plaintiff’s
claim will fail.

[Cannot use section 103 to place the burden of proving the particular fact - the drawing or plans
were not complied with on the defendant as it is an element of the cause of action which the plaintiff
has to prove. Both parties cannot have the burden to prove the existence or absence of the same
fact.]

Therefore, the defendant need not prove that TCSB has failed to construct the building in accordance
with the plans and drawings of SESB, the burden to prove such is upon the plaintiff.

See explanation of balance of probabilities given by Lord Denning in Miller v Minister of Pensions.

Additional Sample Questions

Question 1(b) July 2011

Wong files a civil suit against Ng claiming damages for battery and assault. Briefly discuss the
burden of proof in the civil claim. (5 marks)

10.6 BURDEN AND STANDARD OF PROOF IN CIVIL CASES –

S102, S103

Question 2 January 2002

Trusting is the registered proprietor of a piece of land (“Land”). Trusting has just been
 informed by the Inland Revenue Board that he should pay real property gains tax in respect of
his sale of the Land to a housing developer, Heaven Sdn Bhd.

Trusting denies signing any sale and purchase agreement with Heaven Sdn Bhd in respect of
the Land (“Agreement”). Due to Trusting’s refusal to complete the Agreement, Heaven Sdn Bhd
has commenced a civil suit against Trusting and has applied for specific performance of the
Agreement (“Suit”).

In respect of the forthcoming Suit, please advise Trusting as to –

(a) who has the legal burden to prove Trusting’s allegation that his signature on the
Agreement has been forged (“Forgery Allegation”); (5 marks)
(b) the standard of proof in respect of the Forgery Allegation; (5 marks)

SUGGESTED ANSWER

(a) Issue - who has the legal burden to prove Trusting’s allegation that his signature on the
Agreement has been forged
Since Trusting is making the allegation, he would have the burden of proving it. Section 103
provides that the burden of proof on any particular fact lies on the person who wishes the
court to believe in its existence. Here since Trusting the defendant is alleging the forgery, he
will have the legal burden of proving it. Section 102 provides that the burden of proof lies on
the person who would fail if not evidence at all were given on that issue. Since it is Trusting
who will fail if no evidence at all were given on the forgery allegation, he will have the burden
of proving the forgery.
In Jayasena, the Privy Council in determining the type of burden placed on the accused by
section 105 to prove self defence came to the conclusion the term ‘burden of proof’ used in the
section would place a legal and not an evidential burden on the accused to prove his defence.
The same words used in sections 102 and 103 would also place a legal burden on Trusting.

(b) Issue – the standard of proof in respect of the Forgery Allegation

The standard of proof placed on Trusting to prove the forgery is on the balance of
probabilities. In UAB v Tai Soon Heng, where the court said that the allegation that the bank
had honoured forged cheques had to be proved on the balance of probabilities. In Adorna
Properties v Boonsom Boonyanit, the court held that forgery only had to be established on
the balance of probabilities. Any remaining conflict on the standard of proof for an allegation
of fraud in a civil case has been laid to rest by the recent Federal Court decision in Sinnaiyah &
Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584, where the Federal Court held that the
applicable standard is balance of probabilities in all civil cases.
See explanation of balance of probabilities given by Lord Denning in Miller v Minister of
Pensions.
 Question 2 July 2018

Answer BOTH parts of this question

Kris was engaged by Trolls Sdn Bhd (Trolls) to investigate the loss of money they suspect was
misappropriated by Hugo, their Chief Financial Officer. Kris discovered that Hugo had
purchased a yacht for RM500,000.00 and registered it in his father’s name, Bruno. The yacht
was purchased in part from funds transferred from Trolls’ bank account based on documents
signed by Anna, Trolls’ managing director. Anna has denied signing the documents. Kris further
discovered a note issued by Hugo reducing Isabelle’s debts with Trolls by RM1 million. Kris has
obtained a bank-in slip that shows Isabelle has paid RM100,000.00 into Bruno’s bank account.
Hugo claims he does not know Isabelle. Kris’s partner, Sven took photographs of Hugo with
Isabelle on the yacht. Hugo is now being sued by Trolls.

(a) The burden and standard of proof Victor has to discharge; and (18 marks)

(b) The admissibility of the photographs if Sven is not called as a witness. (7

marks)

ANSWER OUTLINE
(a)

Plaintiff: Trolls Sdn Bhd

Defendant: Hugo, CFO

Here, Hugo will be sued for trespass to goods, namely conversion and breach of trust. The claim in
conversion is mainly based on purchase of a yacht using company funds and the reduction of debt
owed by Isabelle. He did such in order to benefit himself, through the yacht being registered in his
father’s name, and the deposit of RM100,000 made by Isabel into his father’s account when Trolls
reduced Isabel’s debt by 1million, as such, it is breach of trust.

Victor as counsel for the Plaintiff will first and foremost bear the legal burden of proving the facts in
issue for his claim. Therefore, the facts in issue include the elements of breach of trust and trespass
to goods, specifically, conversion. This is pursuant to section 101 of the EA. The fact that section 101
denotes a legal burden was held in the case of Jayasena with where the Privy Council made
reference to definition of the term “proved” in section 3 of the EA. While section 101 clearly places a
legal burden on the part of Trolls as the plaintiff, it does not stipulate to what standard of proof this
legal burden is to be discharged. Standards of prove are not provided for under the EA and as such in
the case of Yuvaraj, the Privy Council adopted the English standards of proof. In civil cases, as such,
the applicable standard of proof is a balance of probabilities, defined in Miller v Minister of
Pensions to mean more probable than not, and where the probabilities are equal, the burden is not
discharged.

In effort to prove the facts in issue, he will seek to prove certain relevant facts and have to adduce
certain evidence.

One of the key pieces of evidence is the purchase of the yacht using Troll’s funds. This was done by
the signature of Anna. Here the cause of action is against Hugo. As such, either Trolls will have to
prove that Anna is in collusion with Hugo, or that the signature was actually made by Hugo’s hand.
And such, it is a fraudulent/forged signature. This fact would be a fact Trolls relies on and as such,
based on section 102 and section 103, Trolls would bear a legal burden to prove forgery/fraud. On
the issue of standard of proof, the Federal Court in Sinnayah & Sons held that when determining the
standard of proof, we need only determine whether this is a civil or criminal case. Since the facts
state that Hugo is sued (As opposed to charged), it is a civil charge, and as such the civil standard of
proof will apply, regardless of whether an allegation of fraud is made.

In order to prove this case, Trolls will have to adduce certain pieces of evidence, naely the fraudulent
document, the registration documents of the yacht, the book of accounts or relevant documents that
show the reduction of the debt owed by Isabel and the bank statements which show the payment of
Isabel to Bruno of RM100,000, and the photograph of Hugo and Isabel. All the relevant requirements
of the sections required to admit these evidences will have to be proven by Trolls as stated in section
104. This will all have to be proven on a balance of probabilities.

(b)

Possible areas of discussion:

1. A photograph falls within the definition of a document under section 3 of the EA. (Illustration
“A photograph or a negative is a document.”)
2. Primary and secondary document: The negative/Memory card for digital cameras is the
primary evidence. The photograph is the secondary- see Positive Well Marketing Sdn Bhd v
OKA Concrete Industries Sdn Bhd. If Sven as the maker is not called as a witness, what is
requires is that either the negative or the memory card be tendered as primary evidence. The
photograph is not tendered as evidence per se, merely tendered to the court for purposes to be
kept in court record- See Mohd Salleh Mk Mohd Yusof v PP [2005]. (In this case, the
document in issue was the birth certificates of certain victims of a crime. The evidence
produced in court were the actual birth certificate and identity card of the women and what
was retained as part of the court records were the certified photocopies thereof, the original
having been returned. The prosecution therefore had relied on the evidence of the actual birth
certificate and identity card for the dates of birth and therefore it did not matter that the
photocopies that were kept in the court records were not properly certified as required by
section 76 EA)
3. Computer generated document
Only applicable if the camera used is a digital camera as it has storage and display functions, at
least, and thus falls within the definition of a “computer” under section 3 of the EA. Here, if
Sven is not called then a certificate under section 90A(2) must be tendered- Gnanasegaran.
4. Hearsay: Note also that the photographs are not hearsay as there is no human intervention.
The hearsay rule does not apply to documents produced by machines that automatically
record some process or event. R v Spiby [1990], Castle v Cross [1984].

Question 1(a) November 2017

The Federal Court in Letchumanan Chettiar Alagappan @ L Allagappan & Anor v Secure
Plantation Sdn Bhd [2017] 3 MLRA 501 held that, “Burden of proof has two distinct meanings,
namely, (i) the burden of proof as a matter of law and pleadings, and (ii) the burden of proof as
a matter of adducing evidence.”

Discuss this distinction by reference to the Evidence Act 1950 (Act 56) and relevant case law.
 (15 marks)

ANSWER OUTLINE
This Federal Court decision seems to centre around the issue of the overall burden of proof as per
section 101 of the EA 1950 and the burden of proof on specific facts in issue/relevant facts as seen
through sections 102 and 103:

“The ‘burden of proof’ in s 101 is the burden to establish a case which rests throughout on the party
who asserts the affirmative of the issue. The ‘burden of proof’ in s 102 is the burden to adduce evidence,
to make out or rebut the claim. The ‘burden of proof’ in s 102 shifts from one side to the other according
to the weight of the evidence. To differentiate the sense used, the ‘burden of proof’ in s 101 is ‘burden of
proof’, while the ‘burden of proof’ in ss 102 and 103 is dubbed ‘onus of proof’. In some jurisdictions, the s
101 ‘burden of proof’ is labelled ‘legal burden’ while the s 102 burden of proof’ is referred to as
‘evidential burden’.”[para 52]

It is submitted that this part of the decision was made without reference to section 3 and the Privy
Council decision in Jayasena [1970] 1 All ER 219. To hold that s102 and s103 place but what is
known as an evidential burden would be against the Jayasena, where the Privy Council held that in
reading section 105, the use of the term “proving” was to be read in line with the definition of
“proved” in section 3 of the act, and the Privy Council held that “proved” under section 3 carried a
legal burden. As such, section 105 denoted a legal burden. Sections 102 and 103 use the term”proof”
hence the definition of proved in section 3 would apply to such as well, and that denotes a legal
burden. Therefore for the FC in para 52 of this decision to state that s102 and s103 are akin to an
evidential burden is incorrect.

10.7 ALIBI DEFENCE- BURDEN

Question 2(b) October 2003

Concerning the defence of alibi, discuss with reference to relevant statutory provisions and
decided cases:

(i) the legal and evidential burden; and (5 marks)

(ii) the standard of proof. (5 marks)

ANSWER OUTLINE
Legal Burden
1. Section 103 of the EA provides that the burden of proof as to any particular fact lies on the
person who wishes the court to believe in its existence. The particular fact here is the fact that
he was elsewhere.
2. Illustration (b) to section 103 provides that if A wishes the court to believe that at the time in
question he was elsewhere. He must prove it. Illustration (b) makes it clear that the drafters of
the Act intended section 103 to provide for the burden on the accused with regard to the
defence of alibi. Discuss Mohamed Syedol Ariffin v Yeoh Ooi Gark (PC) – ‘illustrations should
 in no case be rejected because they do not square with ideas possibly derived from another
system of jurisprudence as to the law with which they or the sections deal.”
3. The accused is not merely denying what the prosecution has to prove. He is making a positive
allegation i.e. that he was elsewhere. Therefore the burden of proof should be on him.
4. The Act clearly intends to place a legal burden on the accused to prove or establish his
alibi. Jayasena (PC) and Yuvaraj (PC) - where the Act is clear, we must follow the Act and not
the common law. In Jayasena, the Privy Council rejected the term ‘evidential burden of proof’
and said that it was a contradiction in terms. The Privy Council said that the definition of
‘proved’ in section 3 referred to a legal burden.
5. Where the accused has a legal burden, the standard ‘of proof to discharge it is on the balance
of probabilities as stated in PP v Yuvaraj.
6. The position under the Act would be that the accused has a legal burden which has to be
discharged on the balance of probabilities. In other words, he has to show that more probable
than not, he was elsewhere. See Miller v Minister of Pensions.
7. If the accused established to the court on the balance of probabilities that he was elsewhere at
the relevant time, then he is entitled to the defence of alibi and he will be acquitted because he
has succeeded in establishing his defence of alibi. However even if the accused does not prove
his alibi on the balance of probabilities, he is still entitled to an acquittal if the evidence
adduced casts a reasonable doubt on the prosecution’s case. Here the accused is acquitted not
because he has established his defence of alibi but because the prosecution has failed to prove
its case beyond reasonable doubt.
8. The two Supreme Court decisions Yau Heng Fang and lllian & Anor v PP were decided per
incuriam as they did not consider section 103.
Evidential Burden:
1. While the Act appears to place a legal burden on the accused, the cases appear to suggest that
the accused only has an evidential burden.
2. In Yau Heng Fang (SC) (obiter), lllian v PP (SC) and Arumugam a/l Mothiyah (HC), the
courts decided that the accused only bears an evidential burden when claiming an alibi
defence. This means that all the accused has to do is to adduce some evidence of his alibi and
the question at the end of the case is whether this evidence had cast a doubt on the
prosecution’s case.
3. Also, the defence of alibi is one of those defences which may affect an element of the
prosecution’s case, namely the presence of the accused at the scene of the crime. Here the
dictum of Soertz J. in Chandrasekara, which was adopted obiter by the Privy Council
in Jayasena, should be considered. In other words, even if the accused does not establish his
alibi on the balance of probabilities, he is entitled to an acquittal if the evidence adduced of his
alibi casts a doubt on the prosecution’s case as to his presence at the scene of the crime. Since
the accused only has to cast a doubt in order to be acquitted, it is argued that the accused
should only have an evidential burden with regard to the defence of alibi.
(ii)

As for the standard of proof it should be noted that the evidential burden is only a burden of
adducing evidence and has no standard of proof. However if the accused has a legal burden it has to
be discharged on the balance of probabilities. Discuss Yuvaraj. On the meaning of balance of
probabilities discuss Miller v Minister of Pensions.

10.8 SECTION 106

Sample Question

Section 2 of the Schools Act 1998 provides that it shall be an offence to run a school with more
than 50 students without lawful authority. Discuss the burden and standard of proof in the
following separate and independent situations:

(i) John is charged under the Act. He says he only has 30 students in his school and is
therefore not guilty of an offence under the Act.
(ii) Bob is charged under the Act. He claims that he has approval to run the school.

CLASS ACTIVITY
(i) Need to discuss section 101
(ii) Need to discuss section 106

Question 2(b) October 2015

In another appeal before the High Court, the appellant was convicted under the Arms Act 1960
of being in possession of a shot gun and one round of ammunition. On appeal it was submitted
that as there was no prima facie evidence given by the prosecution that the appellant did not
have a license for the firearm, the conviction could not stand.

What will be your argument as a Deputy Public Prosecutor responding to the

submission advanced by the appellant? (7 marks)

SUGGESTED ANSWER
Discuss who bears the burden of proving the existence/non-existence of the licence for the
firearm/ammunition.

Section 8. Penalty for possessing or carrying arms and ammunition without an arms
licence or arms permit, etc.
Any person who in contravention of the provisions of this Act—
(a) has in his possession, custody or control, or carries or uses any arm or ammunition
without an arms licence or arms permit in that behalf or otherwise than as authorized by
the licence or permit or, in the case of ammunition, in quantities in excess of those so
authorized; or
(b) fails to comply with any condition or to observe any restriction subject to which an arms
licence or arms permit is held by him, shall, on conviction, be liable in respect of any such
 contravention to imprisonment for a term not exceeding seven years, or to a fine not
exceeding ten thousand ringgit, or to both.

In criminal cases, the overall burden lies on the prosecution to prove the case beyond a reasonable
doubt, s101 EA 1950. However, in statutory provisions like this, where an offence creating provisions
provides an exception to the offence, here, authority by licence or permit, section 106 comes in to
play. Section 106 provides that when any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him. See illustrations (a) and (b) to the section. Section 106
applies to both civil and criminal cases, and so is applicable here as well.

The rule emerged from Turner’s case. Here the accused was convicted of possession of game without
authority and fined. The Court of King’s Bench held that the burden of proof rested on the accused to
prove that he falls under one of the qualifications which enabled him to hunt. The rationale for
section 106 was explained in PP v Hoo Chee Keong [1997] 4 MLJ 451 where the court said that
Section 106 “….is an exception to S. 101 of the EA which lays down the general rule that in a criminal
case the burden of proof is on the prosecution and is not intended to relieve it of that duty. It is
designed to meet certain exceptional cases in which it would be possible, or at any rate
disproportionately difficult for the prosecution to establish facts which are ‘especially’ within the
knowledge of the accused and which he could prove without difficulty or inconvenience.”

Using the ratio in Turner, where authority/permit/license are in question, the Defendant would be
able to prove the existence of a license/permit without difficulty or inconvenience- see PP v Hoo
Chee Keong.

Although there are cases like Mary Ng v R [1958] MLJ 108, where the court has rejected attempts to
impose the legal burden on an accused to prove lack of mens rea on the basis that the intention of an
offender is a fact ‘especially within the knowledge of the accused’, and Attygalle v R [1936] AC 338,
where the Privy Council said that it was for the prosecution to prove that an illegal operation took
place and not for the accused to prove that it did not. These cases are distinguishable from the
current case where the element in contention is one of the existence of license/permit/authority and
not mens rea (Mary Ng) or the existence of actus reus (Attygale).

However, in Re Tan Kheng Cheng [1969] MLJ 310, the court held that the prosecution must first
establish a prima facie case before any burden is placed on the accused under Section 106. Therefore,
the prosecution needs to prove that the accused was indeed in possession of the firearms (custody or
control and knowledge) and such firearms were indeed “firearms” prohibited under the Arms Act
1960, before any burden to prove the existence of a license/permit is placed upon the accused.

Where the prosecution proves a prima facie case, the burden of proving the existence of a
license/permit is placed upon the accused by virtue of s106. In Jayasena [1970] 1 All ER 219, Lord
Devlin said that the term ‘proved’ in section 3 appears to refer to the legal burden of proof and not
the evidential burden. Therefore s106 places on the accused a legal burden of proof. This burden is
to be discharged to the standard of balance of probabilities - PP v Yuvaraj. This standard was
clarified by Denning J in Miller v Minister of Pensions. With regard to a balance of probabilities,
Denning J. said that “if the evidence is such that the tribunal can say, ‘We think it more probable than
not,’ the burden is discharged, but if the probabilities are equal, it is not.”

10.9 STANDARD OF PROOF CRIMINAL AND CIVIL CASES-

ESSAY

Question 1 July 2009

Discuss the standard of proof applicable in criminal and civil cases with reference to decided
 cases. (25 marks)

ANSWER OUTLINE

1. Discuss meaning of standard of proof.

2. Discuss s.3 ‘proved’. Discuss Yuvaraj. Adopted the common law standards.
3. Discuss the ‘criminal standard’. - Miller v Minister of Pensions
4. Discuss the ‘civil standard’. - Miller v Minister of Pensions.
5. Discuss the standard of proof on the prosecution in criminal cases - PP v Yuvaraj, Mat v PP,
PP v Saimin.
6. Discuss the standard of proof in criminal trials where the accused has a legal burden - PP v
Yuvaraj (PC).
7. Discuss the standard of proof in civil cases — PP v Yuvaraj (PC).
8. Discuss the standard of proof when an allegation of fraud is made — balance of probabilities
- Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015]. Before Sinnaiyah: Ang Hiok
Seng (FC), Yong Thim v Hoo Kok Chong & Anor (FC) and other cases in your notes.
9. Discuss the standard of proof when an allegation of forgery is made – balance of probabilities
- Boonsom Boonyanit v Adorna Properties, UAB v Tai Soon Heng. Also see Sinnaiyah &
Sons Sdn Bhd v Damai Setia Sdn Bhd [2015].

Additional sample essay questions on standard of proof

Question 4 October 2010

What is the standard of proof that is applied by the court in criminal and civil cases? Illustrate
your answer with reference to any applicable case law. (25 marks)

Question 6(a) October 2009,

Explain the difference between the standard of proof applicable to a criminal and civil
case. (5 marks)

Question 2(b) October 2008 – civil cases

Discuss with reference to decided cases the standard of proof applicable to a civil
case. (12 marks)

10.10 STANDARD OF PROOF – FRAUD ALLEGATION

Question 1(b) July 2013

Jason is in the business of supplying steel frames for use in the construction of buildings. Jason
 supplied RM320,000/- worth of steel frames to Construction Sdn. Bhd. and invoiced them for
the said amount. Although six (6) months have since passed, no payment has been made to
Jason. Jason has made several telephone calls and written numerous letters to Construction
Sdn. Bhd. for payment as a result of which George and Porge, two (2) directors of Construction
Sdn. Bhd. wrote to Jason guaranteeing payment as soon as they were paid by their
sub¬contractor, Sub-Contractor Sdn. Bhd.

After about two (2) months, Jason discovered through enquiries made, that although
Construction Sdn. Bhd. has been fully paid by Sub-Contractor Sdn. Bhd., no payment was
forthcoming from Construction Sdn. Bhd. to himself. He also discovered that George and Porge
had misappropriated all of the funds in the account of Construction Sdn. Bhd. As a result, Jason
instructed his solicitors and commenced a suit for the unpaid sum against Construction Sdn.
Bhd. and for fraud against George and Porge. During the trial of the suit, Jason, through his
counsel, tenders amongst others the following evidence:

• the letter written by George and Porge to Jason; and

• documentary evidence that George and Porge were the sole shareholders and
directors of Construction Sdn. Bhd. and signatories to its bank account.
At the trial, counsel for George and Porge failed to cross-examine Jason in respect of the said
evidence. After Jason closed his case, George and Porge testified that they are not personally
liable to Jason and raised for the first time the allegation that the said letter was a forgery.

(b) Discuss whether the said evidence tendered by Jason amounts to fraud, civil or
criminal, on the part of George and Porge, and the burden of proof to be
discharged by Jason. (8 marks)

SUGGESTED ANSWER
The evidence tendered by Jason would amount to an allegation of fraud in a civil case. The cases are
divided on the standard of proof to be applied where an allegation of fraud is made in a civil case.

The earlier decisions in Saminathan v Pappa (Federal Court), Chu Choon Moi v Ngan Sew
Tin (Supreme Court) and Datuk Jaginder Singh v Tara Rajaratnam (Federal Court) held that
allegations of fraud have to be proved beyond reasonable doubt. Whereas, in Lee You Sin v Chong
Ngo Khoon and Lau Hee Teah v Hargill Engineering, the High Court held that fraud only had to be
proved on the balance of probabilities.

In Ang Hiok Seng v Yim Yut Kiu(2007) (Federal Court) the Federal Court held that where the
allegation of fraud in civil proceedings concerns criminal fraud such as conspiring to defraud,
misappropriation of money or criminal breach of trust, it is settled law that the burden of proof is the
criminal standard of proof beyond reasonable doubt and not on the balance of probabilities. An
allegation of criminal fraud in civil or criminal proceedings cannot be based merely on suspicion and
speculation. However, where the allegation of fraud is entirely founded on civil fraud and not on
criminal conduct or offence, a balance of probability is applicable. In Official Assignee of the Estate
of Koh Gang Hee (a bankrupt) v Koh Thong Chuan & Anor the High Court followed Ang Hiok
Seng and held that since an allegation of a fraudulent conveyance was founded on the law of
bankruptcy it was civil fraud and only had to be proved on the balance of probabilities. On the facts
the allegation of the misappropriation of all the funds in Construction Sdn Bhd’s account would
constitute a criminal offence and would hence be an allegation of criminal fraud which has to be
proved beyond reasonable doubt.

In Eric Chan Thiam v Sarawak Securities (High Court), the judge proposed that the legislature
should step in and have one standard of proof on the balance of probabilities in civil proceedings on
the basis that the distinction between civil and criminal fraud as decided in Ang Hiok Seng cannot
hold and is an attempt at distinguishing the undistinguishable. The Federal Court decisions in Yong
Tim v Hoo Kok Chong & Anor (2005) and ASEAN Security Paper Mills Sdn Bhd v CGU Insurance
Bhd (2007) held that the standard of proof for fraud in civil proceedings is proof beyond a
reasonable doubt.

However, following Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584, the
Federal Court held that the applicable standard is balance of probabilities. The Federal Court
considered all the landmark decisions in Malaysia and addressed several issues. The first being the
existence of a third standard of proof following the interpretation given to the decision of the English
court in Hornal v Neuberger Products Ltd [1957] 1 QB 247 and secondly what the applicable
standard of proof is where an allegation of fraud is made in a civil case. The Federal Court
in Sinnaiyah held there are only two standards of proof, namely beyond reasonable doubt for
criminal cases and on the balance of probabilities for civil cases. As such, even if fraud is the subject in
a civil claim, the standard of proof is on the balance of probabilities. There is no third standard.
Therefore, it is up to the presiding judge, after hearing and considering the evidence adduced as
being done in any other civil claim, to find whether the standard of proof was attained. The criminal
aspect of the allegation of fraud and the standard of proof required is irrelevant in the deliberation.
With that, the Federal Court in unequivocal terms held that the principles as pronounced in Ang
Hiok Seng (supra) and Lee You Sin v Chong Ngo Khoon (supra) despite applying the civil standard
to a certain extent are also no longer the law.

Following Sinnaiyah, the courts need only ask whether this is a criminal suit or a civil suit. Where it
is a civil suit, regardless of the allegations made, only the civil standard of proof would apply, i.e.
balance of probabilities – See Miller v Minister of Pensions. This approach is in line with the current
applicable standard of proof under English law as explained in In re B (Children). In that case the
House of Lords held that there is ‘only one civil standard of proof and that is proof that the fact in
issue more probably occurred than not’. The ‘range of circumstances which have to be weighed when
deciding as to the balance of probabilities’ or ‘heightened civil standard’ is no longer a factor to
consider ‘when deciding as to the balance of probabilities’. (referred to in Sinnaiyah)

Question 6(b) October 2009

Explain what is the standard of proof applicable to establish fraud and forgery in a civil
case? (5 marks)

Question 3(b) August 2016

(b) Is there now a different standard of proof for a civil case relating to fraud?
(12.5 marks)

ANSWER OUTLINE
Standard of proof for fraud

As for an allegation of fraud in a civil case, the recent Federal Court decision in Sinnaiyah & Sons
Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584, held that the applicable standard is balance of
probabilities. The Federal Court held that Yong Tim v Hoo Kok Cheong was no longer good law and
the principles as pronounced in Ang Hiok Seng and Lee You Sin v Chong Ngo Khoon despite
applying the civil standard to a certain extent were also no longer the law.

Standard of proof for forgery

An allegation of forgery only has to be proved on the balance of probabilities – Adorna Properties v
Boonsom Boonyanit, UAB v Tai Soon Heng. Although the Federal Court decision in Sinnaiyah &
Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584, concerned an allegation fraud, it would
suggest that the applicable standard in civil cases is balance of probabilities. Hence the standard of
proof for forgery is on the balance of probabilities.

Additional sample question

Question 3 October 2011

Tower Builders Bhd. (“Tower Builders”) is a reputed developer and is in the process of
completing its flagship project in downtown Kuala Lumpur. Pursuant to the architect’s
certificate, Tower Builders issued a progressive payment to its main contractor, One Con Sdn.
Bhd. (“One Can”) by way of Day Bank Bhd. cheque for RM800,000/-.

At the end of the month when reconciling the accounts, Tower Builders’ accountant find that
the sum of RM8 million instead of RM800,000/- had been paid by Day Bank Bhd. to One Can.

In response to Tower Builders’s inquiries, Day Bank Bhd. explains that the cheque that
was presented by One Con was in fact for the sum of RM8 million. Tower Builders strongly
denies this and soon after commences a civil suit against One Con and Day Bank Bhd. Tower
Builders alleges that One Con fraudulently altered the cheque and that Day Bank Bhd. was
either party to the fraud or negligent for failing to investigate the obviously suspicious cheque.

During submissions after full trial, counsel for the defendants argued that Tower Builders had
failed to prove its case against One Con and Day Bank Bhd. beyond reasonable doubt. In
response, counsel for Tower Builders submitted that only the civil standard of proof applies
because this is not a criminal case.

You are the judge deciding the case. Give your findings on the applicable standard of
proof and the grounds for your decision with reference to decided cases. (25 marks)

10.11 STANDARD OF PROOF – FORGERY ALLEGATION

Question 2(a) July 2014

Anson brings an action against Peter for recovery of land situated in Cheras of which Peter is in
possession. Peter has been in possession of the said land for some ten (10) years and has the
title deeds to the said land. Anson however alleges, that his father, Wilbert left the said land to
him in his will and furthermore asserts that the title deeds in Peter’s possession is not genuine.

Discuss with reference to the provisions of the Evidence Act 1950 and relevant cases
what is the burden of proof upon Anson and how is this burden to be
discharged? (8 marks)

ANSWER OUTLINE
Need to discuss both the burden and standard of proof.

Burden of proof

Here Anton is bringing an action against Peter for recovery of land situated in Cheras of which Peter
is in possession. Section 101 provides that if Anton wants to obtain a judgment against Peter, he has
to prove all the facts in which the judgement is based. In Jayasena, the Privy Council made it clear
that the words in ‘burden of proof’ used in section 105 and ‘proved’ in section 3 refer to a legal
burden. The same would apply to the words ‘burden of proof’ in s.101 and hence Anton will have a
legal burden.

Standard of proof

As for the standard of proof where Anson (the plaintiff) is making an allegation that the title deeds in
Peter’s (the defendants)’possession is not genuine. This could be said to be an allegation that the title
deeds are forged. An allegation of forgery only has to be proved on the balance of probabilities
– Adorna Properties v Boonsom Boonyanit, UAB v Tai Soon Heng. Although the Federal Court
decision in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584 , concerned an
allegation of fraud, it would suggest that the applicable standard in civil cases is the balance of
probabilities. Hence the standard of proof for forgery is on the balance of probabilities.

Question 5 September 2016

Marina entered into a Sale and Purchase Agreement (SPA) with Belumbina Sdn Bhd
(Belumbina), a property developer. Through the SPA, Belumbina has agreed to construct a
double storey bungalow house and deliver vacant possession of the property to Marina within
twenty-four (24) months from the date of the SPA. Prior to the execution of the SPA, Gung Ho,
Belumbina’s marketing manager provides Marina with a signed memo which states that
Belumbina will provide built-in wardrobes in the bedrooms, water heaters in all the
bathrooms, a fridge and six (6) air condition units. Belumbina has delayed in the delivery of
vacant possession of the property to Marina by ten (10) months. Belumbina now claims that
the memo is not theirs and the signature does not appear to be that of Gung Ho. Belumbina
now informs Marina that they will not be providing the items set out in the memo. Marina has
commenced legal action against Belumbina for late delivery of the property and for the
misrepresentations made in the memo. Gung Ho has since fled the country and cannot be
located. Marina has consulted Bayam on the signature in the memo.

Advise Marina:

(a) On the burden and standard of proof that has to be discharged; (13 marks)
(b) On whether Bayam can give evidence on her examination of the signature in the
memo.
(12 marks)

Mixed question

Question 1 August 2017

1. Answer ALL parts of this question

Bakar, an illiterate was the registered owner of a land known as Lot 20 (Land). Raman through
a power of attorney signed by Bakar entered into a sale and purchase agreement to sell the
Land to Mokhtar. Bakar has denied signing the power of attorney and lodged a police report.
Raman has now been charged under section 467 of the Penal Code (Act 574) for forgery.
Raman denied the charge and claims that the sale of the Land was done in good faith and with
Bakar’s consent. Bakar has also commenced legal action against Raman and Mokhtar for
recovery of the Land and claims that the Land was fraudulently transferred.

Discuss with reference to the Evidence Act 1950 (Act 56) and decided cases:
 (a) The burden and standard of proof on the prosecution to establish the charge against
Raman: (8 marks)

(b) The burden and standard of proof on Raman to establish his defence of acting in
good faith and with Bakar’s consent; (8 marks)

(c) The burden and standard of proof on Bakar with respect to the civil action against
Raman and
Mokhtar. (9 marks)

Answer outline

(a) Section 101-burden on the prosecution

Section 101 - “Prove” read with section 3 & Jayasena- Legal Burden
Standard of proof- Beyond reasonable doubt. Yuvaraj. Miller v Minister of Pensions.

(b) Defence: Section 105- special exceptions in the Penal Code- Burden on the accused persons.
“Proving” / “prove”- Section 3, Jayasena.
Standard: Yuvaraj. Miller v Minister of Pensions.

(c) Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584, (FC)

10.12 PRIMA FACIE CASE- ESSAY QUESTIONS

Question 2(a) September 2002 – meaning of prima facie

(a) What is meant by a prima facie case within the context of sections 173 and 180 of the
Criminal Procedure Code (“CPC”) as a result of the amendment to the CPC in 1997? (13
marks)

SUGGESTED ANSWER

(a) Meaning of prima facie case as a result of the amendment.

Section 173(f) is now worded;

When the case for the prosecution is concluded the court shall consider whether the prosecution has
made out a prima facie case against the accused. If the court finds that the prosecution has not made
out a prima facie case against the accused, the court shall record an order of acquittal. Section 180 is
similarly worded.

The question is on the nature of the burden placed on the prosecution at the close of the
prosecution’s case in order for the defence to have a case to answer as a result of the 1997
amendments. The main cases to discuss are Dato Seri Anwar Ibrahim, Looi Kow Chai and the
Federal Court decision in Balachandran.

In Looi Kow Chai & Anor v PP, the Court of Appeal said that the purpose of the amendment to
section 173(f) and 180 of the CPC was to reverse the majority view of the Federal Court
in Arulpragasan a/l Sandaraju v PP and to statutorily codify the minority view in that case. The
Court of Appeal held that the correct test to be applied in determining whether a prima facie case
had been made out under section 173(f) or section 180, of the Criminal Procedure Code was as
follows A judge sitting alone under s.180 of the CPC must subject the prosecution evidence (as tested in
cross-examination) to a maximum evaluation and ask himself the question ‘ If I decide to call upon the
accused to enter his defence and he elects to remain silent, am I prepared to convict him on the totality
of the evidence contained in the prosecution case?’ If the answer was in the negative, then no prima
facie case had been made out and the accused would be entitled to an acquittal, Subjecting the
evidence of the prosecution to a maximum evaluation to determine if the defence was to be called
did not mean that the prosecution had to prove its case beyond reasonable doubt at this
intermediate stage.

In Looi Kow Chai, the Court of Appeal also said that the following passage in Dato Seri Anwar
Ibrahim, correctly states the law as it presently stands:

“A prima facie case arises when the evidence in favour of a party is sufficiently strong for the
opposing party to be called on to answer. The evidence adduced must be such that it can be
overthrown only by rebutting evidence by the other side. Taken in its totality, the force of the
evidence must be such that, if unrebutted, it is sufficient to induce the court to believe in the
existence of the facts stated in the charge or to consider its existence so probable that a prudent man
ought to act on the supposition that those facts existed or did happen. As this exercise cannot be
postponed to the end of the trial, a maximum evaluation of the credibility of witnesses must be done
at the close of the case for the prosecution before the court can rule that a prima facie case has been
made out in order to call for the defence. The Federal Court said that since the court in ruling that a
prima facie case has been made out must be satisfied that the evidence adduced can be overthrown
only by evidence in rebuttal, it follows that if it is not rebutted it must prevail.

In Dato Seri Anwar Ibrahim (High Court), the High Court said that after the amendment, the test is
not a beyond reasonable doubt test. The Court of Appeal endorsed the High Court decision in Anwar
Ibrahim and said that it was not a beyond reasonable doubt test. The Anwar Ibrahim decision has
also been approved sub-silentio by the Federal Court on this issue.

The Federal Court took the same approach in Balachandran. The Federal Court said that section
180(1) makes it clear that the standard of proof on the prosecution at the close of its case is to make
out a prima facie case while s.182A(1) enunciates that at the conclusion of the trial the court shall
consider all the evidence adduced and decide whether the prosecution has proved its case beyond
reasonable doubt.

In Balachandran, the Federal Court said that the test at the close of the case for the prosecution
would therefore be: Is the evidence sufficient to convict the accused if he elects to remain silent? If
the answer is in the affirmative then a prima facie case has been made out.

As a result of the Criminal Procedure (Amendment) Act 2006, the Criminal Procedure Code provides
that a “a prima facie case is made out against the accused where the prosecution has adduced
credible evidence proving each ingredient of the offence which if unrebutted or unexplained would
warrant a conviction.” It is submitted that this gives effect to the decisions in Looi Kow
Chai and Balachandran.

In short
1. The decisions in Looi Kow Chai, Dato Seri Anwar Ibrahim and Balachandran make it clear
that there is no burden on the prosecution to prove its case beyond reasonable doubt at the
close of the prosecution’s case. Whether the case has been proved beyond reasonable doubt is
to be decided at the close of the whole case. The test at the close of the case for the prosecution
would therefore be: Is the evidence sufficient to convict the accused if he elects to remain
silent? If the answer is in the affirmative then a prima facie case has been made out. Further if
the accused on being called to enter his defence elected to remain silent, he must be convicted.
2. The above decisions have overruled the earlier decisions in PP v Sukumaran a/l
Sudram and PP v Krishna Rao which suggested a lower test and minimal evaluation.
Effect of the refusal of the accused to testify upon being called.

If the purpose of the amendment is to statutorily codify the minority view in Arulpragasan - then if
the accused elected to remain silent and called no evidence, the court must convict him since the
hypothetical position - that the evidence would not or could not be rebutted has become a reality -
Azmi SCJ in Munusamy v PP and also his minority judgment Arulpragasan.

In Dato Seri Anwar Ibrahim, the court held that if the accused elects to remain silent and fails to
show why the finding of prima facie case is wrong, the case will be said to have been proved beyond
reasonable doubt and the accused would be convicted. In Looi Kow Chai the court said that the
accused cannot be compelled to give evidence, but must risk the consequences if he does not do so. If
the evidence clearly calls for an explanation which the accused ought to be in a position to give if an
explanation exists then a failure to give any explanation may as a matter of common sense allow the
drawing of an inference that there is no explanation and that the accused is guilty. In Balachandran,
the Federal Court held that a prima facie case is one which is established by sufficient evidence, and
can be overthrown only by rebutting evidence adduced by the other side. Thus if the accused elects
to remain silent, he must be convicted. There will be no necessity to re-evaluate the evidence in
order to determine whether there is reasonable doubt in the absence of any further evidence for
such a consideration. The prima facie evidence which was capable of supporting a conviction beyond
reasonable doubt will constitute proof beyond reasonable doubt.

Additional sample essay questions on prima facie case

Question 6(c) October 2009,

With reference to decided cases explain what amounts to a prima facie case at the close of the
case for the prosecution. (15 marks)

Question 6 October 2008

At the end of the prosecution’s case there must be a maximum evaluation of the evidence given
by the prosecution witnesses.

Discuss this in the light of the development of the law as to what amounts to a prima
facie case. (25 marks)

Question 2(b) September 2002

(b) Trace briefly the development of case law leading to the amendment of the CPC in
1997. (12 marks)

SUGGESTED ANSWER
(b) Development of the case law leading to the amendment of the CPC in 1997.

Section 173(f) used to be worded:

If upon taking all the evidence hereinbefore referred to, the court finds that no case against the accused
has been made out which if unrebutted would warrant his conviction, the court shall record an order of
acquittal. Section 180 was similarly worded.
Earlier cases like PP v Man Bin Abas and PP v Chin Yoke applied a beyond reasonable doubt test in
deciding whether the accused had a case to answer. In other words at the close of the prosecution’s
case, the court will have to do a maximum evaluation of the prosecution’s evidence as tested in cross-
examination to see if they are satisfied beyond reasonable doubt. If the accused elected not to tender
evidence, he would be convicted.

In Haw Tua Tau, the Privy Council in interpreting section 188 of the Singapore CPC (which was in
pari materia with sections 173(f) and 180 of the Malaysian CPC) said that there was no obligation on
the prosecution to prove its case beyond reasonable doubt at the close of the prosecution’s case. The
Court equated the role of a judge in a trial by judge alone with the role of a judge in a jury trial. Hence
the question at the close of the prosecution’s case is purely a question of law. As decider of law, 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 there is then he
will presume that all such evidence is true unless it is inherently so incredible that no reasonable
person would accept it as being true and call for the defence. Haw Tua Tau only required a minimal
evaluation of the prosecution’s evidence to see that the evidence was not inherently incredible at the
close of the prosecution’s case.

Haw Tua Tau was followed in string of Malaysian cases including Ragunathan v PP, Pavone v PP,
Munusamy v PP and Junaidi v. PP. In Pavone v PP Edgar Joseph Jr.J. said that even if the accused
elected to remain silent and called no evidence he could still be acquitted if the prosecution has not
proven the case beyond reasonable doubt. The reason would be because under the Haw Tua
Tau test, the court acted on assumptions before calling for the defence and had not done a maximum
evaluation of the prosecution’s evidence as tested in cross-examination prior to calling for the
defence. In Munusamy v PP, the Supreme Court followed Haw Tua Tau and said that there was no
duty on the prosecution to actually prove their case beyond reasonable doubt as to the guilt of the
accused at the close of the case for the prosecution. It was only a hypothetical BRD as the court acts
on assumptions. The test was put as follows. “The judge should ask himself “If I were to accept the
prosecution’s evidence as accurate, would it establish the case against the accused beyond
reasonable doubt? Or put another way: On the assumption that the prosecution’s evidence was
accurate, could the accused be lawfully convicted? If yes, then a prima case has been made out.”
However, Azmi SCJ then went on to say citing PP v Man Bin Abas, that “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 ... that the prosecution evidence would not or could not be rebutted has
become a reality”.

In Khoo Hi Chiang, the Supreme Court overruled the Haw Tua Tau decision as well as the decisions
in Munusamy and Junaidi. The Supreme Court said that the question to be decided at the close of
the prosecution’s case is not just a hypothetical question of law but an actual and quite different
question of fact. The Supreme Court said that the comments in Haw Tua Tau on prima facie case
were purely obiter and the Privy Council in Haw Tua Tau did not consider the string of decisions on
the issue by the courts of Malaysia and Singapore. Further the section uses the words - “would
warrant” not ‘could warrant’ or ‘might warrant’. Hence at the close of the prosecution’s case, the
court has to conduct a maximum evaluation of the evidence to determine whether or not the
prosecution has established the charge against the accused beyond all reasonable doubt.

In Tan Boon Kean, the Supreme Court said that the ‘case’ required to be established by the
prosecution under s.180 is a ‘prima facie’ case and not a beyond reasonable doubt case. The Supreme
Court said that there was no definitive ruling in Khoo Hi Chiang that the word ‘case’ in s. 180 is not a
prima facie case. Under s.180, a prima facie case is one which can be overthrown only by rebutting
evidence adduced by the other side, so as to cast a reasonable doubt on the prosecution case as to
the guilt of the accused. The court said it was only bound by the ratio in Khoo Hi Chiang that at the
close of the prosecution case, the duty of the court is to carry out a maximum evaluation of the
evidence but not on the purpose of the maximum evaluation.

In Arulpraqasan a/l Sandaraju v PP, the Federal Court held that at the close of the prosecution’s
case, the court has to conduct a maximum evaluation of the prosecution’s evidence as tested in crass-
examination and see if the prosecution has made out a case against him beyond all reasonable doubt.
The Court said that the accused would only be called on for his defence if, at the close of the
prosecution’s case, it would be safe to convict on the evidence of the prosecution. If the accused
elects to remain silent and calls no witnesses or produces no documents in his own defence, then he
will have failed to rebut the prosecution’s case, and the Court must be prepared, there and then to
convict him. If the defence tenders evidence, it is the duty of the Court to consider the prosecution’s
evidence in the light of the defence evidence.

The above is a brief account of the development of the law prior to the amendments in 1997.

Question 2 July 2004

“Consequently, in a proper case, there is nothing illegal in a Magistrate or a President, or a Judge

sitting alone or with Assessors, calling for the defence upon prima facie evidence being adduced
and then proceeding to acquit and discharge even when the accused elects to remain silent and to
call no evidence if not satisfied that the charge has been established by the prosecution beyond all
reasonable doubt.”per Edgar Joseph Jr. J. (as he then was)in Pavone v PP [1984] 1 MLJ 77, at p.79.

Discuss in the context of the current provisions of section 173(f), (h) and (m) of the
Criminal Procedure Code as so construed by decided cases. (25 marks)

SUGGESTED ANSWER
The extract of the judgment in Pavone in the question above deals with the nature of the burden
placed on the prosecution at the close of the prosecution’s case and the effect of consequences of the
accused remaining silent and tendering no evidence upon being called to enter his defence.

In Pavone v PP, Edgar Joseph Jr. J followed the Privy Council decision in Haw Tua Tau where the
Privy Council had said that there was no obligation on the prosecution to prove its case beyond
reasonable doubt at the close of the prosecution’s case. The Privy Council said as decider of law at
the close of the prosecution’s case, the judge must consider whether there was evidence, which, if he
were to accept it as accurate, would establish each essential element in the alleged offence. If there is
then he will presume that all such evidence is true unless it is inherently so incredible that no
reasonable person would accept it as being true and call for the defence.

Hence Haw Tua Tau only required a minimal evaluation of the prosecution’s evidence to see that the
evidence was not inherently incredible at the close of the prosecution’s case. Provided that there was
evidence on each and every essential element of the offence on which the accused could lawfully be
convicted, the judge would presume the evidence to be true unless it was inherently incredible and
call for the defence.

Hence in Pavone v PP Edgar Joseph Jr. J. said that even if the accused elected to remain silent and
called no evidence he could still be acquitted if the prosecution has not proven the case beyond
reasonable doubt. The reason would be because under the Haw Tua Tau test which was followed
in Pavone, the court acted on assumptions (that the evidence was true unless is was inherently
incredible) before calling for the defence and had not done a maximum evaluation of the
prosecution’s evidence as tested in cross-examination prior to calling for the defence.

In Munusamy v PP, the Supreme Court followed Haw Tua Tau and said that there was no duty on
the prosecution to actually prove their case beyond reasonable doubt as to the guilt of the accused at
the close of the case for the prosecution. It was only a hypothetical BRD as the court acts on
assumptions. The test was put as follows. ”The judge should ask himself”. If I were to accept the
prosecution’s evidence as accurate, would it establish the case against the accused beyond
reasonable doubt? Or put another way: On the assumption that the prosecution’s evidence was
accurate, could the accused be lawfully convicted? If yes, then a prima facie case has been made out.”
However, Azmi SCJ then went on to say citing PP v Man bin Abas, that “ 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…that the prosecution evidence would not or could not be rebutted has
become a reality”. Although Azmi SCJ had said in deciding whether there was a prima facie case, the
judge must by necessity evaluate and weigh the evidence as tested in cross examination, there was
nothing in Azmi SCJ’s judgment in Munusamy or Junaidi to indicate that a maximum evaluation was
required at this stage. The weighing he was referring to appeared to be just to see that the evidence
was not inherently incredible etc. It was only in Tan Boon Kean after the Supreme Court decision
in Khoo Hi Chiang, that Azmi SCJ said that the judge had to do a maximum evaluation of the
prosecution evidence as tested in cross-examination in deciding whether the defendant had a case to
answer. In Tan Boon Kean, the Supreme Court held that the case under section 180 was a prima facie
case and not a beyond reasonable doubt case and that a prima facie case is one which can be
overthrown only by rebutting evidence adduced by the other side, so as to cast a reasonable doubt
on the prosecution case as to the guilt of the accused. Hence if no rebutting evidence was adduced,
the accused would be convicted. The same approach can be seen in Azmi SCJ’s minority decision
in Arulpragasan.

Note that in the majority decision in Arulpragasan, the Federal Court held that at the close of the
prosecution’s case, the court has to conduct a maximum evaluation of the prosecution’s evidence as
tested in cross-examination and see if the prosecution has made out a case against him beyond all
reasonable doubt. The Court said that the accused would only be called on for his defence if, at the
close of the prosecution’s case, it would be safe to convict on the evidence of the prosecution. If the
accused elects to remain silent and calls no witnesses or produces no documents in his own defence,
then he will have failed to rebut the prosecution’s case, and the Court must be prepared, there and
then to convict him. This would still be the test where the offence was committed before 31st
January 1997. See Dalip Bhagwan Singh.

Section 173(f) was amended by the Criminal Procedure (Amendment) Act 1997 and provides that
the accused shall be called to enter his defence where the prosecution has made out a prima facie
case. The provision would apply to offences committed on or after 31st January 1997.

In Looi Kow Chai & Anor v PP, the Court of Appeal said that the purpose of the amendment to
section 173(f) and 180 of the CPC was to reverse the majority view of the Federal Court
in Arulpragasan a/l Sandaraju v PP (discussed above) and to statutorily codify the minority view
in that case.

The fact that section 173(f) uses the words ‘made out a prima facie case’ and section 173(m) used
the words beyond reasonable doubt makes it clear that the legislature did not require the case to be
actually proved beyond reasonable doubt before the defence was called.

Hence, the correct test in deciding whether a prima facie case had been made out is as follows – a
judge sitting alone under s.180 of the CPC must subject the prosecution evidence (as tested in cross-
examination) to a maximum evaluation and to ask himself the question ‘if I decide to call upon the
accused to enter his defence and he elects to remain silent, am I prepared to convict him on the
totality of the evidence contained in the prosecution case?’ – Looi Kow Chai & Anor v PP. In Dato
Seri Anwar Ibrahim, Augustine Paul J said that a prima facie case arises where the evidence adduced
by the prosecution is such that it can be overthrown only by rebutting evidence by the other side.

Hence based on the current provisions of the Criminal Procedure Code and the cases, if the accused
elected to remain silent and called no evidence, the court must convict him since the hypothetical
position – that the evidence would not or could not be rebutted has become a reality – Azmi SCJ
in Munusamy v PP and also his minority judgment Arulpragasan. This can also be seen in Dato Seri
Anwar Ibrahim, where the court held that if the accused elects to remain silent and fails to show
why the finding of prima facie case is wrong, the case will be said to have been proved beyond
reasonable doubt and the accused would be convicted. In Looi Kow Chai the court said that the
accused cannot be compelled to give evidence, but must risk the consequences if he does not do so. If
the evidence clearly calls for an explanation which the accused ought to be in a position to give if an
explanation exists then a failure to give any explanation may as a matter of common sense allow the
drawing of an inference that there is no explanation and that the accused is guilty?

In Balachandran v PP (2005), the Federal Court held that a prima facie case is one which is
established by sufficient evidence, and can be overthrown by rebutting evidence adduced by the
other side. The Federal Court said that since the court in ruling that a prima facie case has been made
out must be satisfied that the evidence adduced can be overthrown only by evidence in rebuttal, it
follows that if it is not rebutted it must prevail through if the accused elects to remain silent he must
be convicted. There will be no necessity to re-evaluate the evidence in order to determine whether
there is reasonable doubt in the absence of any further evidence for such a consideration. The prima
facie evidence which was capable of supporting a conviction beyond reasonable doubt will constitute
proof beyond reasonable doubt.

Hence in light of the current provisions and the decisions in Looi Kow Chai, Anwar
Ibrahim and Balachandran, the current position is clearly different from that stated in Edgar
Joseph’s judgment in Pavone as today a judge calling for the defence would have do a maximum
evaluation of the prosecution’s evidence as tested in cross-examination before calling for the defence
and apply the test discussed above. Hence if the accused elected to remain silent and tenders no
evidence he must be convicted.

As a result of the Criminal Procedure (Amendment) Act 2006, the Criminal Procedure Code provides
that a “a prima facie case is made out against the accused where the prosecution has adduced
credible evidence proving each ingredient of the offence which if unrebutted or unexplained would
warrant a conviction.” It is submitted that this gives effect to the decisions in Looi Kow
Chai and Balachandran.

10.13 PRIMA FACIE CASE- PROBLEM QUESTIONS

Question 1(a) October 2003

Jamboo was charged with causing the death of Kabool by dangerous driving. It was alleged that
Jamboo, while driving motor car No. DD 341, collided into Kabool’s motorcycle No. FF 113 at
about 6.00 pm on 28.2.2003 near 7th km Jalan Air Sejuk. Nandoo gave evidence for the
prosecution and testified that on the day and time in question, he saw the collision and gave
the said motor car number to the police investigating officer, Inspector Klosse. However, he
could not remember the said motor car number. Inspector Klosse testified that as a result of
the information from Nandoo, he interviewed Jamboo who had admitted to him that he was
driving the said motor car at the time and place of the accident but had denied that he was
involved in the accident. No other evidence was led by the prosecution.

Assuming that you are Jamboo’s defenced counsel, write out the submission you would
make at the close of the prosecution case. (12 ½ marks)

SUGGESTED ANSWER

1. Jamboo has been charged with causing the death of Kabool by dangerous driving.
2. Nandoo’s evidence was that he saw the collision but could not remember the car number.
Hence he is not testifying that the defendant’s car was involved in the accident.
3. If Inspector Klosse gives evidence of what Nando said to him, it would be hearsay and
inadmissible. None of the exceptions would apply.
4. When Inspector Klosse approached Jamboo, he admitted driving the car but says he was not
involved in the accident.
5. Hence the prosecution has not adduced evidence to show that the car was involved in the
accident.
6. Discuss the definition of prima facie in the Criminal Procedure Amendment Act 2006. Section
173(f) provides that a prima facie case is made out against the accused where the plaintiff has
adduced credible evidence proving each ingredient of the offence, which if unrebutted and
unexplained, would warrant a conviction.
7. Discuss the test in Looi Kow Choi and Dato Seri Anwar Ibrahim
- The judge affecting a maximum evaluation of the prosecution’s evidence as tested
in cross - examination must ask himself if the accused is called to enter his
defence but elects to remain silent, would he be prepared to convict the accused
on the totality of the evidence contained in the prosecution’s case.
- In Balachandran’s case, the court said the judge at the close of the prosecution’s
case in deciding whether to call for the defence must ask himself ‘Is the evidence
sufficient to convict the accused if he elects to remain silent’ If the answer is in the
affirmative, then, a prima facie case has been made out against the accused.
Both Looi Kow Chai and Balachandran the court said there is no need for the
prosecution to prove its case beyond reasonable doubt at this stage nonetheless
the evidence must still be sufficiently strong that the judge would be prepared to
convict should the accused remain silent.
8. Based on the evidence adduced by the prosecution and the test discussed above Jamboo has
no case to answer as no judge would be prepared to convict Jamboo had he elected to remain
silent.

Question 3 July 2005

Amat and Raz are charged with robbing Seekay of a Rolex gold watch. Udos is charged with
receiving stolen property i.e. the said watch knowing or believing it to be stolen. At their trial,
Seekay testifies that he was returning home one night when he was attacked in his front porch
as he alighted out of his car by 2 men who had rushed in behind his car as the electric gate was
opened. One man whom Seekay identifies as Raz grabbed his arms while the other who was
wearing a ladies’ stocking over his face, pulled Seekay’s watch off his wrist. After the men ran
off, Seekay called the police. ASP Klosse who happened to be in the neighbourhood testifies
that in answer to an APB (All Points Bulletin) he cruised around the locality and gave chase to 2
men sho began running when they saw his car. He managed to corner and arrest one of them
i.e. Raz while the other escaped. When searched, Raz had a ladies’ stocking in his trousers
pocket.

ASP Klosse states that Raz, while being searched said “My friend’s got the watch”. ASP Klosse
further testifies that when he visited the local pasar malam the next day he found the same
gold watch for sale in Udos’ stall which specializes in second hand items. The trial magistrate
has, after a trial within a trial, refused to admit into evidence a cautioned statement by Udos
that he had bought the said watch from a man whom he knew to be a habitual thief. However
the trial magistrate has admitted into evidence the cautioned statements of Amat and Raz. In
 his cautioned statement –

(i) Amat says that he was in a cinema watching a film at the material time and that he has the
patron’s portion of the cinema ticket as proof. He denies knowing either Raz or Udos.

(ii) Raz says that he ran away from ASP Klosse because he had been in trouble with the police
before. He denies being involved in the robbery and claims that what he told ASP Klosse was
“Got the time on your watch?”

If you were the trial magistrate what would be your decision at the close of the
prosecution’s case? Give reasons. (25 marks)

ANSWER OUTLINE

1. The magistrate has to decide whether the prosecution has made out a prima facie case.
2. Section 173(f) of the Criminal Procedure Code defines ‘prima facie case’.
3. Discuss the test for prima facie case in Looi Kow Chal and Balachandran. Basically at the
close of the prosecution’s case, the judge has to conduct a maximum evaluation of the
prosecution’s evidence as tested in cross-examination and ask himself, if he were to call for the
defence and the defence elected to remain silent, would he be prepared to convict the
defendant on the totality of the prosecution’s evidence.
4. Each defendant’s case has to be considered separately. Note that Amat and Raz have been
charged for robbery while Udos has been charged for possession of a stolen watch.
5. Amat
- Disputes identity
- Defence of alibi — claims that he was at a cinema at the relevant time. [No
requirement to establish the defence of alibi if a prima facie case is not established
— Yau Heng Fang]
- Seekay only saw Raz but says that the other person was wearing a ladies stocking which
means he did not get a good look at the other person. Hence there is no evidence to
show that the other person was Amat.
- Raz’s statement “My friend’s got the watch.” is ambiguous. It does not say who the
particular person is. Also Raz now denies the statement and says that he said, ‘Got the
time on your watch?’ Udos cautioned statement that he bought the watch from a man
whom he knew to be a habitual thief — does not say, who it is and is also evidence of
bad character. In any case the evidence is not admitted.
- Note the Turnbull guidelines since Amat is disputing the identity.
- Applying the test in Looi Kow Chai — it is submitted that there are too many gaps in the
prosecution’s case and no prima facie case will be made out against Amat.
6. Raz
- Victim identified Raz as the person who robbed him.
 - Police apprehended Raz while he tried to run away. He says the reason he ran away was
because he has been in trouble with the police before.
- The police found a stocking in his pocket. He did not wear the stocking. Can he explain
the stocking in his pocket?
- His statement “My friend’s got the watch — suggests he had knowledge of the watch.
But no watch is found on him.
- Seekay is also disputing the identification evidence — Turnbull guidelines — look at
the quality of the evidence - Seekay attacked from behind, and at night. Could be said
that the quality of the identification might be poor. Could the stocking found in Seekay’s
pocket be supporting evidence?
- What is your conclusion applying the test in Looi Kow Chai and Balachandran?
7. Udos
- Charged with receiving stolen goods. The goods were found in his stall after the robbery.
- Note that his cautioned statement is not admitted.
- Discuss s.114(a). Prosecution may want to rely on this provision.
- Udos may have to account for his possession of the stolen items.
- What is your conclusion applying the test in Looi Kow Chai and Balachandran on
whether Udos has a case to answer?

Question 1 July 2003

Hans Smart is an expatriate software engineer of Caucasian origin working in Malaysia. He has
been charged with theft of money from an ATM machine using the ATM card of Tan Ah Beng
who testifies that he found his wallet missing when he alighted from the LRT an hour before
the alleged theft. He claims that he always keeps the ATM card in his wallet. He also claims that
almost every morning for the last few weeks, he has seen Hans Smart in the same LRT train on
the way to work. In fact Hans Smart lives in the same apartment building as Tan Ah Beng. Joe
Puteh who is an office colleague of Hans Smart gives evidence that he saw Hans “loitering” near
the ATM machine in question a few minutes before the alleged theft took place. The ATM
machine is situated on the ground floor of Wisma UPIT and their office is on the 13th Floor. Joe
Puteh admits in cross-examination that there is bad blood between him and the accused on
account of Joe’s steady girlfriend having jilted him in favour of Hans Smart. The police
investigating officer who seized the film recorded by the hidden camera above the ATM
machine introduces the same into evidence but the identity of the person using the ATM
machine at the material time is not very clear though it is clear that the person appears to be a
Caucasian, has a beard and wears spectacles. Hans Smart has a similar beard and also wears
spectacles.

The police also, when searching Hans Smart’s apartment found 2 ATM cards hidden behind the
bedroom airconditioner. The 2 ATM cards were in fact issued to 2 persons who are neighbours
of Hans Smart in the same apartment building.

In his cautioned statement which is tendered in evidence by the investigating officer at the
request of defence counsel, Hans Smart denies that he ever used Tan Ah Beng’s ATM card. As
for the other 2 ATM cards belonging to his neighbours, Hans states that he only moved into that
apartment about one month ago and has no knowledge of those ATM cards.
 (a) Identify the various pieces of evidence which may be adduced in support of the
prosecution’s case. (12 ½ marks)
(b) If you were the trial Judge, what would your decision be at the close of the prosecution’s
case. Give reasons. (12 ½ marks)

SUGGESTED ANSWER

(a) Identify the various pieces of evidence which may be adduced in support of the
prosecution’s case.
Here Hans Smart has been charged for theft of money from an ATM machine using Tan Ah Beng’s
ATM card. It would appear from Hans Smart’s cautioned statement that he is denying he ever used
Tan Ah Beng’s ATM card.

The items of evidence the prosecution will be able to adduce:

1. Tan Ah Beng’s evidence that he found his wallet missing when he alighted from the LRT an hour
before the alleged theft. This evidence may be relevant under section 9 as fixing the time and
place where a relevant fact, in this case the time and place when his wallet was taken by the
person who later used the ATM card to commit the theft. The evidence may also be relevant
under section 6 as being part of the same transaction as the fact in issue.
2. Tan Ah Beng’s evidence that he always kept his ATM card in his wallet. This evidence may be
relevant under section 9 to explain that the ATM card was in his wallet which was missing
when he alighted from, the train.
3. Tan Ah Beng’s evidence that he has seen Hans Smart in the same LRT train on the way to work
almost every morning for the last few weeks. This may be relevant under section 9 to support
the inference that Hans Smart was also on the train on the day that Ah Beng’s wallet with the
ATM card was stolen.
4. Evidence that Hans Smart lives in the same apartment building as Tan Ah Beng. This may be
relevant under section 9 as showing the state of relations of the parties between whom any
fact was transacted. That they are both neighbours living in the same apartment building.
5. Joe Puteh’s evidence that he saw Hans loitering near the ATM machine in question a few minutes
before the alleged theft took place. This evidence may be relevant as showing that Hans Smart
had the opportunity to commit the offence which would be relevant under section 7. The
evidence may also be relevant as showing the accused’s previous conduct i.e. that he was
loitering near the ATM machine in question which would be relevant under section 8(2).
6. Film recorded by hidden camera above the ATM machine which although it does not clearly
show the identity of the person using the ATM at the time, but it clearly shows a Caucasian
with a beard like Hans Smart and who also wears spectacles. The evidence would be relevant
under section 9 to establish the identity of the person who committed the offence. The
recorded film would be treated as a document.
7. Evidence of the police that they found 2 ATM cards (issued to 2 persons who are neighbours of
Hans Smart in the same apartment building) in Hart’s Smart’s apartment hidden behind the
 bedroom air conditioner. Generally evidence of any act or conduct not covered by the charge for
which Hans Smart is being tried is inadmissible. Can this evidence be adduced under the
similar fact exceptions? Sections 14 and 15 will not apply here as Hans Smart is disputing the
evidence of identification adduced by the prosecution. Can the evidence be adduced by the
common law exception to support the evidence of Joe Puteh and the hidden camera In order
for the evidence to be admitted the probative value of the evidence must outweigh its
prejudicial effect. This was made clear in Boardman v DPP which was applied in Veeran
Kutty (HC) and Junaidi (SC). On the facts the only similarity appears to be that the ATM cards
of 2 other neighbours were in Hans Smart’s apartment. State your conclusion on whether the
probative value of the evidence would outweigh its prejudicial effect or not.
(b) Discuss the test which the trial judge must apply in order to determine if the accused has a
case to answer as a result of the amendments to the Criminal Procedure Act. What is the test?
Discuss Looi Kow Chai and Data Seri Anwar Ibrahim. Apply the test to the items of evidence
discussed above. Note that all the evidence is circumstantial. At the close of the prosecution
case, the court has to conduct a maximum evaluation of the evidence as tested in cross-
examination. The trial court has to look at the weaknesses of the evidence.
- The ATM machine is situated on the ground floor of Wisma UPIT and their Office is on
the 1st
- Joe Puteh admits in cross-examination that there is bad blood between him and the
accused on account of Joe’s steady girlfriend having jilted him in favour of Hans Smart.
- The identity of the person on the film is recorded by the hidden camera using the ATM
at the material time is not very clear though it is clear that the person appears to be a
Caucasian
State whether you think the defence has a case to answer and state your reasons. Since the case
appears to depend wholly or substantially on identification evidence which the accused appears to
be disputing you also need to briefly discuss Turnbull. Turnbull has been applied in Jaafar bin
Ali, Yau Heng Fang and Rangapula. Note the judge in doing the maximum evaluation of the
prosecution evidence as, tested in cross-examination will also have to look at the quality of the
identification evidence. If the quality is poor the court has to reject it unless there is supporting
evidence.

Question 1 October 2004

Norman is charged with the murder of Yeebok while the latter was jogging in Taman Bunga at
about 7.00 pm on 26th December 2002. The murder was witnessed by another jogger Zenda
who was urinating in the bushes about 30 yards away. Zenda claims that he saw Yeebok being
stabbed by a man about 6 feet tall who then ran away. Zenda rushed to Yeebok’s assistance and
as he held him, Yeebok gasped “Nom… Nom… did it to me” before breathing his last. At an
identification parade held on 31st December 2002 consisting of Norman and 6 other six feet
tall men Zenda was unable to identify the assailant though he believes that Noman looks like
the person who stabbed Yeebok. Meanwhile on 28th December 2002, the police investigating
officer ASP Kayu found a dagger hidden in the attap roof of Noman’s shack which is not far
away from Taman Bunga. ASP Kayu also discovered some dried bloodstains outside Noman’s
shack.

The medical pathologist Dr. Dee Dee who performed the autopsy on Yeebok’s remains has
 certified in writing that the stab wounds in the chest of the deceased were the cause of his
death and that the said wounds were most probably caused by the weapon discovered by ASP
Kayu. DNA testing by Professor Abe, a leading scientist at Universiti Selatan Malaysia shows
that the said stains matched Yeebok’s blood.

In his cautioned statement, Noman denied that he had anything to do with Yeebok’s death and
stated that at the time in question he was alone at home opening his Christmas presents and
listening to carols.

(a) Identify the various pieces of evidence which may be adduced in support of t
he prosecution’s case. (12 marks)
(b) If you were the Judge, what would you decide at the close of the prosecution’s
case? (13 marks)

Quite similar to the Question 1 July 2003. See above.

Question 1(b) October 2007

The police raided Betty’s flat and found a large quantity of cannabis in it. In an unsworn and
voluntary statement, Betty claimed that the cannabis belong to John, who had brought it into
her flat against her will. She said she was arguing with John when the police arrived. Her
explanation, if true, would have proved that she was never in possession of the cannabis. She
was subsequently charged in court for possession of the drug.

To a submission of no case to answer by her counsel before you at the close of the case
for the prosecution, would you overrule it and call for the defence? If you decide to
overrule on the submission, give your reasons (12 ½ marks)

10.14 CIRCUMSTANTIAL EVIDENCE – ESSAY QUESTIONS

Question 1(c) July 2010

What is the standard of proof applicable to circumstantial evidence? (9 marks)

1. Discuss meaning of circumstantial evidence briefly.

2. It was earlier thought that where evidence was circumstantial there was a higher standard of
proof and that the judge had to give a special direction in accordance with the irresistible
conclusion test. In other words the traditional beyond reasonable doubt direction was not
sufficient. Cases to discuss briefly - Rex v Hodge, Kartar Singh and Anor, Karam Singh v PP,
Chan Chwen Kong v PP. What was the effect of these decisions?
3. Discuss the House of Lords decision in McGreevy v DPP - The House of Lard rejected the
contention that there is a special obligation upon the judge where the case against the accused
 depended wholly or substantially on circumstantial evidence. The House of Lords held that in
a criminal trial it is a duty of a judge to make clear to the jury in terms which are adequate to
cover the particular features of the case that they must not convict unless they are satisfied
beyond reasonable doubt of the guilt of the accused. There is no rule that where the
prosecution case is based on circumstantial evidence that the judge must as a matter of law
give a further direction, that the jury must not convict unless they are satisfied that the facts
proved are not only consistent with the guilt of the accused, but also such as to be inconsistent
with any other reasonable conclusion.
4. McGreevy was followed by the Federal Court in Jayaraman & Ors v PP, where Suffian L.P said
the one and only irresistible conclusion test is another way of saying that the prosecution must
prove the guilt of the accused beyond reasonable doubt. Syed Othman F.J said -- in a case tried
without a jury and depending on circumstantial evidence, it is enough for the trial judge to
remember only, that the prosecution need prove its case beyond reasonable doubt, and failure
by him to also say that the circumstances are not only consistent with the accused having
committed the crime but also that they are inconsistent with any other reasonable
explanation, is not fatal.
5. In Juraimi Hussin v PP, Gopal Sri Ram said that the proposition that circumstantial evidence
must, when, taken together, irresistibly lead to the conclusion that the accused committed the
offence is merely another way of saying that the prosecution must prove its case beyond
reasonable doubt. This because any gap in the circumstances relied upon or inconsistent with
guilt would result in the prosecution not having proved its case beyond reasonable doubt.”
6. The most recent decision on this issue is found in the Federal Court decision of PP v Azilah Bin
Hadri & Sirul Azhar Bin Hj Umar[2015] where the FC held that circumstantial evidence alone
can lead to a conviction provided that:
(a) the circumstances from which the conclusion of guilt is to be drawn has been
established;
(b) the facts so established is consistent with the hypothesis of the guilt; and
(c) circumstances should be of a conclusive nature in that the chain of evidence is complete
so as to exclude any conclusion consistent with the accused person’s innocence
The FC went on to say that in assessing the above, the court needs to be absolutely satisfied that the
prosecution has proven its case beyond a reasonable doubt. Therefore, the same standard of proof
applies, beyond reasonable doubt.

Question 1(c) October 2008

What is the degree of proof required for reception of circumstantial evidence in a court
of law?

(10 marks)

Question 3 August 2017

 Circumstantial evidence as opposed to direct evidence is allowed and regarded as
sufficient under the law to prove a case and sustain a conviction.”

Discuss.
(25 marks)

10.15 CIRCUMSTANTIAL EVIDENCE – PROBLEM QUESTIONS

Question 3 October 2015

Rosli has been convicted and sentenced to death for the murder of Michael. He now appeals
against this decision. In his grounds of judgment, the learned judge relied on the evidence of
Meena who saw Rosli enter Michael’s home with a gun and some 20 minutes later saw Michael
and Rosli having an argument outside the house before Michael left his home and drove off
with Rosli. He also accepted the evidence of Inspector Genius, the Investigating Officer that
there was a dagger at the crime scene and he found 3 gun-shot wounds on Michael. The judge
also relied on the pathologist report which suggested that Michael died of multiple stab
wounds to the scapula and 2 gunshots to the torso.

The Judge further relied on the evidence of Rojak who saw Rosli look distraught and had blood
stains on his shirt on the night of Michael’s murder. On his arrest, Rosli was found to be in
possession of Michael’s gold chain. The Judge ruled that all these evidence were sufficient to
support his decision.

Advise Rosli if he has any grounds to support his appeal? (25 marks)

SUGGESTED ANSWER
Establish the issue

This is a question about burden and standard of proof and the adequacy of the evidence presented to
discharge such burden of proof.

Establish the burden and standard of proof applicable.

The charge is one of murder, a criminal case. S101, see illustration (a) provides that the prosecution
must prove all the elements of the offence. In Jayasena [1970] 1 All ER 219, Lord Devlin said that
the term ‘proved’ in section 3 appears to refer to the legal burden of proof and not the evidential
burden. Therefore s101 places on the prosecution the burden of proving the accused’s guilt.

In order to discharge the burden of proof placed on the prosecution, the prosecution has to prove the
accused’s guilt beyond reasonable doubt. Yuvaraj, Mat v PP , PP v Saimin, Mohamed Radhi [1991]
3 MLJ 169

A key issue here is that the evidence tendered by the prosecution consists entirely of circumstantial
evidence. In other words it is evidence of relevant facts and not facts in issue. Here even if the court
as trier of fact accepts the evidence, the judge has to decide what inferences if any he will draw of the
evidence. In PP v Letchumanan a/l Krishnan [2008] 3 MLJ 290, the court held that circumstantial
evidence alone may be sufficient to secure a conviction for murder since the law makes no
distinction between circumstantial evidence and direct evidence. See also Sunny Ang where accused
was convicted of murder on wholly circumstantial evidence even though the deceased’s body was
not found.
The test for circumstantial evidence has for many years been known as the irresistible conclusion
test. Which is the evidence must be such that, if believed, there is no reasonable alternative to the
guilt of the accused. If it is anything less than this, it is no case at all ( Kartar Singh v PP). In Sunny
Ang, the court said with regard to circumstantial evidence that the court had to see if the evidence
leads the trier of fact to ‘the irresistible conclusion that the accused committed the crime’. Other
cases – Karam Singh v PP [1967] 2 MLJ 25, Chan Chwen Kong v PP [1962] MLJ 307. This gave rise
to the issue of whether irresistible conclusion was a standard higher than BRD. This matter was dealt
with by the House of Lords in Mc Greevy. The House of Lords decision in McGreevy was followed by
the Federal Court in Jayaraman & Ors v PP [1982] where the Federal Court held that the irresistible
conclusion test was just is another way of saying that the prosecution must prove the guilt of the
accused beyond reasonable doubt.

The most recent decision on this issue is found in the Federal Court decision of PP v Azilah Bin
Hadri & Sirul Azhar Bin Hj Umar[2015] where the FC held that circumstantial evidence alone can
lead to a conviction provided that

(a) the circumstances from which the conclusion of guilt is to be drawn has been
established;
(b) the facts so established is consistent with the hypothesis of the guilt; and
(c) circumstances should be of a conclusive nature in that the chain of evidence is complete
so as to exclude any conclusion consistent with the accused person’s innocence
The FC went on to say that in assessing the above, the court needs to be absolutely satisfied that the
prosecution has proven its case beyond a reasonable doubt. Therefore, the same standard of proof
applies, beyond reasonable doubt.

Examine the relevancy, admissibility and adequacy of the evidence/ run the evidence against the 3
requirements in PP v Azilah Hadri. Is the burden discharged BRD?

Evidence of Meena who saw Rosli enter Michael’s home with a gun and some 20 minutes later saw
Michael and Rosli having an argument outside the house before Michael left his home and drove off
with Rosli.

This evidence is relevant under section 7 as it showed that Rosli had the opportunity to commit the
murder. It is also relevant under section 8 as previous conduct of the accused and the victim and of
the state of relations between the accused and the victim which is relevant under section 9. It shows
that Rosli had in his possession a gun, which is what the murder weapon is established to be by the
pathologist report. However, there is no evidence showing that it was the same gun used, or that the
gun used in the murder is in any way connected to Rosli. It just shows that on that day, Rosli had in
his possession a gun. Further, there were also stab wounds on Michael. No knife was seen. Besides
that, this is evidence of identification and such is inherently prone to mistake and such the court
should have issued a Turnbull warning as well, which was not.

He also accepted the evidence of Inspector Genius, the Investigating Officer that there was a dagger at
the crime scene and he found 3 gun-shot wounds on Michael.

Inspector Genius’s evidence is relevant under section 7 as cause or effect of the incident in question.
Though there was a dagger at the scene, there is no evidence linking conclusively that it was the
same dagger used in the murder of Michael, nor is there any evidence that links the dagger to Rosli –
eg. finger prints.

The judge also relied on the pathologist report which suggested that Michael died of multiple stab
wounds to the scapula and 2 gunshots to the torso.

This evidence is relevant under section 7 as the cause of death. A pathologist is the proper person
with the proper expertise to give their opinion on the cause of death. See section 45. However, this
again does not link the murder to Rosli.
The Judge further relied on the evidence of Rojak who saw Rosli look distraught and had blood stains on
his shirt on the night of Michael’s murder.

This evidence would be relevant under section 8(2) as conduct subsequent to the offence. Evidence
of a similar nature was admitted in PP v Karam Singh. Here, the accused was charged with the
murder of a person in his neighbourhood. Amongst the evidence tendered against him was that he
was seen walking hastily in bloody clothes from the direction of the victim’s house at/about the time
of the murder. The accused however was able to explain this away saying that he was walking not
from the victim’s home but from the hospital where he worked after his shift ended, his clothes were
bloody because of an incident with a patient in the hospital earlier and that he was in a hurry as he
had been awake for many hours and was eager to get home and sleep. The court accepted his
explanation, and held him not guilty. Likewise, here, Rosli’s conduct alone is not conclusive proof of
anything and the court should had considered whether he could explain his conduct.

On his arrest, Rosli was found to be in possession of Michael’s gold chain

This is relevant under section 9 as it supports the inference that he may have taken Michael’s chain.
The gold chain could also be a motive for the murder. The question is whether Rosli had an
explanation to account for his possession.

An analysis of these pieces of evidence show that there are many gaps in the story. When relying on
circumstantial evidence, Azilah bin Hadri ‘s decision requires that the circumstances should be of a
conclusive nature in that the chain of evidence is complete so as to exclude any conclusion consistent
with the accused person’s innocence. Here, the chain of evidence leaves much to be desired. There
are multiple gaps in the story, some of which are very crucial namely there is no evidence which
conclusively links the Rosli to the murder weapons. Also, Rosli may explain his conduct. Even if he
doesn’t, the failure to conclusively link the murder weapons to Rosli is failure to establish the
circumstances from which the conclusion of guilt is to be drawn.

As such, the evidence presented was insufficient to support the judge’s decision and Rosli has a
ground of appeal as the court has failed to ensure that the prosecution had proven its case beyond
reasonable doubt.

Question 5 July 2018

Solo is charged under section 302 of the Penal Code for the murder of Susan. Mahendran, the
Deputy Public Prosecutor is considering the following evidence for the trial, namely the
information from Aminah, Susan’s neighbour who said that at approximately 4.30 a.m. she
heard the deceased crying as if in pain and heard the deceased say “Don’t tie my hands”
repeatedly. Aminah informed that she heard a male voice which she believed sounded like Solo,
saying “Close your mouth. Don’t make noise”. Aminah said she woke her son Rahim, fourteen
years of age and together entered Susan’s house. They saw Susan lying on the floor with her
hands tied to the back of her body, her mouth stuffed with a bath towel and her head bleeding
profusely. Rahim untied Susan and removed the bath towel and heard her say, “Gang Three
Stooges did this to me”, before she passed out.

Rahim informed that the accused was known in the neighbourhood to be a member of Gang
Three Stooges.

DSP Ismail, the investigating officer said that he arrived at the crime scene at 5.00 a.m. and
found Susan alive who managed to scribble the words ‘SOL’. Susan died some five hours later in
the hospital. Azmi, from the Chemist Department obtained fingerprints from objects found at
the crime scene and confirmed that they were that of the deceased as well as Solo after he had
compared the said fingerprints with the records kept at the Office of the Registrar of Criminals.
Finally, Cherry a goldsmith owner said that Solo had come to see her in the afternoon of the
incident to sell the deceased jewelry.
 Based on the above information, advise Mahendran which aspect of the law of evidence
he could rely upon to link Solo to Susan’s murder. (25 marks)

ANSWER OUTLINE
The question asks us to advise Mahendran which aspect of the law of evidence he could rely upon to
link Solo to Susan’s murder. As such, the overall answer to this question lies in the issue of
circumstantial evidence.

Student should discuss:

1) What is circumstantial evidence?

2) Identify that the evidence available is circumstantial evidence
3) Circumstantial evidence is sufficient to result in a murder conviction- Sunny Ang, Azilah
Hadri.
4) The irresistible conclusion test (or inescapable conclusion)- McGreevy, Kartar Singh,
5) The burden and standard of proof- on the prosecution, Beyond a reasonable
doubt. Jayaraman, Azilah Hadri, Section 101, Jayasena, Yuvaraj.
6) Discuss each and every available evidence- general relevancy and also other issues within Part
I, Part II and Part III as the evidence/facts may suggest:
i. information from Aminah, Susan’s neighbour who said that at approximately 4.30 a.m.
she heard the deceased crying as if in pain and heard the deceased say “Don’t tie my
hands” repeatedly.
Is this hearsay? Is it tendered for the truth or for the emotion which it displayed or the
makers state of mind? Discuss Subramaniam.
ii. Aminah informed that she heard a male voice which she believed sounded like Solo,
saying “Close your mouth. Don’t make noise”.
Is this hearsay? Is it tendered for the truth or for the voice in which it was made?
Discuss Subramaniam.
Voice- relevant under section 9 to identify the maker of the statement.
iii. They saw Susan lying on the floor with her hands tied to the back of her body, her
mouth stuffed with a bath towel and her head bleeding profusely.
Relevant under Section 7 as the state of things
iv. Rahim untied Susan and removed the bath towel and heard her say, “Gang Three Stooges
did this to me”, before she passed out.
Susan’s statement –
It is relevant under section 9- identify the perpetrator; section 7 as cause.
Discuss whether it is hearsay. (Subramaniam)
Discuss possible exceptions namely section 32(1)(a) and res gestae
v. Rahim is fourteen years of age.
 Rahim is a child and as such before his evidence is to be tendered the court must run
the preliminary examination to determine is competency according to section 118, and
if competent a further preliminary examination to determine whether he may give
sworn evidence or unsworn based on section 133A. The rule of corroboration to follow
accordingly.
vi. Rahim informed that the accused was known in the neighbourhood to be a member of
Gang Three Stooges.
Relevant under section 9 to support an inference.
vii. DSP Ismail, the investigating officer arrived at the crime scene at 5.00 a.m. and found
Susan alive who managed to scribble the words ‘SOL’. Susan died some five hours later in
the hospital.
Establish whether this is hearsay.
If so, the possible exceptions: section 32(1)(a) and res gestae under section 6 and
common law (Andrews)
viii. Azmi, from the Chemist Department obtained fingerprints from objects found at the
crime scene and confirmed that they were that of the deceased as well as Solo after he
had compared the said fingerprints with the records kept at the Office of the Registrar of
Criminals.
Section 9- Identification
Azmi needs to be an expert under section 45, and his evidence must comply with the
requirements under section 45 and the procedure to adduce such.
ix. Cherry a goldsmith owner said that Solo had come to see her in the afternoon of the
incident to sell the deceased jewelry.
Section 8(2)- Conduct subsequent

Question 6 July 2005

Y and Z were charged before the Sessions Court for offences under the Anti-Corruption Act
1997. Y was charged for an offence under section 10(a) of the Act for corruptly receiving
gratification as a reward for officials of the Ministry of Finance. Z was charged for abetting Y in
the commission of the offence. There was no direct evidence implicating Z but there were the
following evidence adduced during their joint trial:

(a) Z’s name and office telephone number in Y’s address book which was recovered from Y
immediately upon his arrest.
(b) The subsequent identification by Y to the Anti-Corrupution Agency of Z as the man
named “Zimbo” in his address book.
(c) The positive acts of assistance by Z:
(i) in personally taking X Company’s file to the typist for typing although Z was then
no longer in charge of the said file;
(ii) after the letter had been typed, in signing the typed letter for and on behalf of the
 file officer without the file officer’s knowledge or permission; and
(d) The recovery of two other letters by the Anti-Corruption Agency both dated 13 August
1998, also signed by Z, from a room and from the drawer of the table occupied by Y in
his office.
Discuss in relation to decided cases whether Z can be convicted for the offence of
abetting Y in the commission of the offence based on the above evidence available at the
trial. If so, on what basis? (25 marks)

SUGGESTED ANSWER

1. Section 101 provides that the prosecution has the burden of proving the elements of the
offence. In order to discharge the burden of proof placed on the prosecution, the prosecution
has to prove the accused’s guilt beyond reasonable doubt. Yuvaraj, Mat v PP , PP v
Saimin, Mohamed Radhi [1991]
2. Here there was no direct evidence of Z and Y actually committing the offence. The evidence
tendered by the prosecution consists entirely of circumstantial evidence. In other words it is
evidence of relevant facts and not facts in issue. Here even if the court as trier of fact accepts
the evidence, the judge has to decide what inferences if any he will draw of the evidence. In PP
v Letchumanan a/l Krishnan [2008] 3 MLJ 290, the court held that circumstantial evidence
alone may be sufficient to secure a conviction for murder since the law makes no distinction
between circumstantial evidence and direct evidence. See also Sunny Ang where accused was
convicted of murder on wholly circumstantial evidence even though the deceased’s body was
not found. Hence it is possible to secure a conviction against Z for abetting in the commission
of the offence based on entirely circumstantial evidence.
3. The test for circumstantial evidence has for many years been known as the irresistible
conclusion test. Which is the evidence must be such that, if believed, there is no reasonable
alternative to the guilt of the accused. If it is anything less than this, it is no case at all (Kartar
Singh v PP). In Sunny Ang, the court said with regard to circumstantial evidence that the court
had to see if the evidence leads the trier of fact to ‘the irresistible conclusion that the accused
committed the crime’. Other cases –Karam Singh v PP [1967] 2 MLJ 25, Chan Chwen Kong v
PP [1962] MLJ 307. This gave rise to the issue of whether irresistible conclusion was a
standard higher than BRD. This matter was dealt with by the House of Lords in Mc Greevy. The
House of Lords decision in McGreevy was followed by the Federal Court in Jayaraman & Ors
v PP [1982] where the Federal Court held that the irresistible conclusion test was just is
another way of saying that the prosecution must prove the guilt of the accused beyond
reasonable doubt.
4. The most recent decision on this issue is found in the Federal Court decision of PP v Azilah
Bin Hadri & Sirul Azhar Bin Hj Umar[2015] where the FC held that circumstantial evidence
alone can lead to a conviction provided that:
(a) the circumstances from which the conclusion of guilt is to be drawn has been
established;
(b) the facts so established is consistent with the hypothesis of the guilt; and
 (c) circumstances should be of a conclusive nature in that the chain of evidence is complete
so as to exclude any conclusion consistent with the accused person’s innocence
The FC went on to say that in assessing the above, the court needs to be absolutely satisfied
that the prosecution has proven its case beyond a reasonable doubt. Therefore, the same
standard of proof applies, beyond reasonable doubt.
5. Several items of circumstantial evidence were tendered at the joint trial:
- Z’s name and office telephone number in Y’s address book shows the state of
relationship — i.e. Y knew Z and possibly vice versa. This is supported by the subsequent
identification by Y to the ACA of Z as the man named `Zimbo’ in his address book. This
evidence may be relevant to show that Y knew Z and may be relevant to show the state of
relationship between the two. This relationship is the basis of any assistance/abetting.
- The positive acts of assistance by Z
i. In personally taking X’s Company file to the typist for typing although Z was then no
longer in charge of the said file - Z personally took X’s company file to the typist for
typing despite not being in charge any more. Z has gone out of his way to help Y
even though he was no longer in charge of the file. Z personally took X’s company
file to the typist for typing despite not being in charge any more. Z will probably
say that he was only trying to help. The prosecution will suggest that Z was going
behind the file officer’s back and without his knowledge for gratification.

ii. After the letter had been typed, in signing the typed letter for and on behalf of the
file officer without the officer’s knowledge or permission; and this exceeds his
authority and his job scope. The prosecution would argue that no one would take
on extra unnecessary work where another person is already in charge unless they
were up to no good or were receiving gratification for it.
- The recovery of two letters by the ACA both dated 13 August 1998, also signed by Z,
from a room and from the drawer of the table occupied by Y in his house.
Two other letters signed by Z dated the same day are also discovered in Y’s possession
which goes to show that Z and Y have some sort of arrangement. This shows the link
between Z’s acts to Y. The location where the letters were found, in Y’s house, in a
drawer, in table occupied by Y, shows that the letter was in most likelihood placed there
by Y, hence Y knew of its existence.

5. Having identified the evidence against Z and discussing its relevance, you have to discuss
whether Z can be convicted for the offence of abetting Y in the commission of the offence
based on the circumstantial evidence available. Discuss the irresistible conclusion test. The
standard of proof is beyond reasonable doubt. Individually the evidence may not be sufficient
to obtain a conviction but it is the cumulative effect of the evidence that has to be looked at.
Analyse the evidence to see if there are gaps in the story. When relying on circumstantial
evidence, Azilah bin Hadri ‘s decision requires that the circumstances should be of a
conclusive nature in that the chain of evidence is complete so as to exclude any conclusion
 consistent with the accused person’s innocence. Discuss whether this is satisfied on the facts.
Has the prosecution proven its case beyond reasonable doubt?
The court will have to ascertain whether there are any gaps in the prosecution’s story, for
example, what was the nature of the letters found/signed. Is the subject matter of the letters
related to the source of the gratification illegally received? Was there an explanation given by Z
for his conduct and what was it? While a motive is unnecessary, it would be helpful to the
drawing of a conclusive conclusion. Did Z gain any benefit from such abetting? A cumulative
analysis of all the evidence must satisfy the court of Z’s guilt BRD before a conviction can be
secured.
6. State your conclusion -

Question 3(a) September 2016

Carol and Lena worked in the housekeeping department of different hotels. Each complained
that while they were cleaning a hotel room, a man who only had his underwear on approached
them from behind, threw a pillow cover over their head. He then injected them with a type of
drug that weakened their muscle and sexually assaulted them. The events occurred in January
and March respectively of the same year. The only evidence was a DNA profile that matched
Halim which was found on the bed sheet in the hotel room where Carol was sexually assaulted.
The Sessions Court judge convicted Halim on both attacks.

Discuss by reference to the Evidence Act 1950 and case laws if the learned Sessions
Court judge was right to convict Halim for the attack on Lena?

(12 marks)

See also chapter 6.3 .

Question 2 October 2014

Ahmad a well-known sportsman is charged for the murder of Brine. The prosecution led
evidence to show that (i) the police was successful in recovering a watch belonging to Brine
from Ahmad’s room and (ii) Ahmad was not able to explain to the police the blood stains found
on his shirt that belongs to the same blood group of Brine. Ahmad’s defence was that he did not
commit any crime and the watch was planted by some miscreants to frame him. The shirt
which had blood stains was an old shirt and he could not remember how it was stained. Can
Ahmad be convicted and sentenced to death for the murder of Brine?

Discuss. (25 marks)

Question 3(b) July 2003

A has been appointed a Deputy Public Prosecutor and has been assigned to prosecute a murder
case solely based on circumstantial evidence.
What is the standard of proof required for A to prove the murder charge at the end of
the trial? (5 marks)