Question 2

Gordy, a Thai national was charged in the Sessions Court for an offence of causing grievous
hurt to Samad under s. 326 of the Penal Code. Gordy had claimed trial to the charge after the
charge was read and explained to him in the Thai language.

At trial, the Sessions Court Judge proceeded to take all such evidence as produced in support
of the prosecution and testimonies of all witnesses in Bahasa Malaysia, including Samad. The
testimonies of witnesses were not translated to Gordy in Thai.

Gordy’s counsel had also raised the issue with regard to identity, that a witness, Nancy who
could not identify Gordy as the perpetrator, even though she was present when the incident
took place, was not called as a prosecution witness. At the close of the Prosecution case,
Gordy’s defence was called.

Issue: Whether the failure to call Nancy as a Prosecution’s witness is fatal

Law + Case: According to Section 114(g) of the Evidence Act 1950 (“EA 1950”), it was
mentioned that the court may presume the existence of a certain fact where evidence which
could be and s not produced would if produced be unfavourable to the person who withholds
it.

Public Prosecutor v Chee Kon Fatt [1991] 3 CLJ Rep 513, witness essential to the unfolding
of the narrative upon which the prosecution case is based must be called by the prosecution
whether in the result the effect of their testimony is for or against the prosecution.

Namasiyam v PP [1987] 2 MLJ 336, if the Prosecution has adduced other evidence sufficient
to discharge the burden, then there is no adverse inference.

Application: In this instance, the fact is silent on whether the Prosecution has other sufficient
evidence to prove a prima facie case against Gordy. Therefore, there are two possible outcomes.
First, if Nancy is the only evidence available to prove, the case of Chee Kon Fatt requires
Nancy to be called as she is necessary for the unfolding of the prosecution’s narrative, which
is Gordy’s guilt under Section 326 of the PC. In such circumstances, the failure to call Nancy
will attract the application of Section 114(g) of EA 1950, where an adverse inference will be
used against the prosecution. On the other hand, since Nancy was not able to identify Gordy as
the perpetrator, if the Prosecution has other evidence to prove a prima facie case against Gordy,
Nancy will not be material and it is not fatal to not call Nancy, as guaranteed by Namasiyam.

Conclusion: In conclusion, the fact is unclear to fully constitute whether Nancy is a material
witness. In the event that she is material, failure to call her will attract Section 114(g) of EA
1950 and vice versa.

Issue 2: Whether the failure to call an interpreter is fatal

Law + Case:

Section 270(1) of CPC, when evidence is given in a language not understood by the accused,
and he is present in the court, it shall be interpreted to him in open court in a language which
he understands

Fidelis Daniel Enechukwu v PP [2015] 4 CLJ 180, the court interpreter had translated the
charge and the opening speech to the appellant in English. However, not all the evidence of the
prosecution witnesses, who had testified in Malay language, was translated to the appellant.
Section 270 of CPC was breached.

Lakshmi Narashimman Suddarajan v PP [2018] 1 LNS 287, the prosecution witness gave
evidence in Bahasa Malaysia while the appellant came from India and is not conversant in
Bahasa Malaysia and could not understand the proceedings conducted in Bahasa Malaysia.
Section 270 of CPC was breached.

Application: In this instance, applying all the above authorities, Gordy is a Thai national and it
is evident that he is not conversant in Bahasa Malaysia. Therefore, Section 270(1) of CPC
mandated the requirement of calling an interpreter to translate all the evidence to Gordy in Thai.
The failure to do so will result in a breach of Section 270 of CPC. As such, this will be a good
ground of appeal for Gordy.

Conclusion: In conclusion, the failure to call a Thai interpreter for Gordy has resulted in a
breach of Section 270 of CPC and Gordy will have a good ground of appeal.

Issue 3: Whether the trial judge erred in finding a prima facie case
Law + Case:

Section 173(f) of CPC, 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.

Azlan bin Alias v PP [2009] 4 MLJ 493, guidelines for prima facie:

(1)A prima facie case is one that is sufficient for the accused to be called upon to answer, which
means that the evidence adduced must be such that it can be overthrown only by evidence in
rebuttal.

(2)The force of the evidence adduced 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 upon the supposition that those facts exist or did
happen, within the meaning of the word "proved" in section 3 of the Evidence Act 1950;

(3) If it is not rebutted, the prima facie case must prevail, and if the accused elects to remain
silent, he must be convicted; and

(4) Where the accused remains silent, there will be no necessity to re-evaluate the evidence in
order to determine whether there is a reasonable doubt.

Public Prosecutor v Dato’ Sri Mohd Najib bin Hj Abd Razak [2020] 11 MLJ 808, a
maximum evaluation of evidence is required at the close of the prosecution’s case.

Application: As discussed earlier, it is important for the court to identify whether the failure to
call Nancy as witness is fatal to the Prosecution’s case. If the answer is in the affirmative, it is
likely that a prima facie case is not established. However, if the answer is in the negative, the
trial judge is correct in finding a prima facie case. Therefore, to do this the court should adopt
a maximum evaluation of evidence at the end of the prosecution’s case. As such, in the event
that a prima facie case is not established, Nancy should be acquitted by virtue of Section 173(f)
of CPC.

Conclusion: In conclusion, if the trial judge has erred in finding a prima facie case, Nancy
should be acquitted by virtue of Section 173(f) of CPC.