Burden of proof and standard of proof in the Malaysian context

Annyeonghaseyo everyone, this is a requested post.

As I mentioned earlier I have plently well written CLP notes ("well-written" is subjective, but I have definitely put in a lot of time & effort on it) and I am going to upload it.

Oh gosh I'd like to do it asap, but I was planning to upload it after checking its relevancy, but apparently I do not have the time. Nevertheless I know this is half-baked product is more than sufficient for those is looking for guidance to make notes. 

There are plently reasons I have decided to upload this topic, first being this is a very examinable topic, and also that the study of this topic requires a lot of research (be it academic or judicial authorities). I hope my reader can realise the importance of doing own research and stop getting spoon-feed from someone else. 

I have uploaded this without checking the grammar error and recent authorities (it's up to date till 2018). Feel free to comment below if there's any important recent cases that I have missed out, I'll read it and amend accordingly when I am able to do so.

You can download Evidence Act 1950 here: 

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Statutory provision relating to burden of proof

Section 3 provides the definition of "proved", "disproved" and "not proved".

Thereafter, read sections 101,102, 103, 104, 105 and 106 all over again as these sections will be the subject matter of the study. Don't forget the illustrations too.

‘Burden of proof’ and ‘onus of proof’

The burden of proof refers to the duty or obligation to prove or establish the case.

Although these sections have all used the expressions “burden of proof”, there is a difference between the sense of expression “burden of proof” in section 101 and the sense of that same expression in section 102.

While the expressions “burden of proof” and “onus of proof” had been used interchangeably by the judges in many cases, there is a fundamental difference between them.

According to Jeffrey Tan FCJ in the Federal Court case of Letchumanan Chettiar Alagappan (As Executer to SL Alameloo Achi (Deceased)) & Anor v Secure Planation Sdn Bhd [2017], in some jurisdiction, ‘burden of proof’ is labelled as ‘legal burden’ while ‘onus of proof’ is referred as ‘evidential burden’.

Jeffrey Tan FCJ in the Federal Court case of Letchumanan Chettiar Alagappan (As Executer to SL Alameloo Achi (Deceased)) & Anor v Secure Planation Sdn Bhd [2017] had extensively discussed the “burden of proof” based on section 101 – 103 Evidence Act 1950 and made reference to the decision of Salleh Abas FJ in one earlier Federal Court case of International Times & Ors v Leong Ho Yuen [1980].

According to Jeffrey Tan FCJ in Letchumanan Chettiar Alagappan (As Executer to SL Alameloo Achi (Deceased)) & Anor v Secure Planation Sdn Bhd [2017] and Salleh Abas FJ in International Times & Ors v Leong Ho Yuen [1980], while the expressions “burden of proof” in section 101 is the burden of establishing a case and this rests throughout the trial on the party who asserts the affirmative of the issue, the expressions “burden of proof” in section 102 and section 103 is actually referring to the “onus of proof”, which is the responsibility of adducing evidence to make out or rebut the claim.

While the “burden of proof” lies upon the person who has to prove a fact and it never shits, the “onus of proof” is not stable and constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence.

In the Privy Council case of Jayasena v R [1970], Lord Devlin states that it is confusing to call “onus of proof” a burden of proof. In fact, it is misleading to call it a burden, whether described as legal or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof.

By virtue of section 101, the legal burden to establish the case rest throughout on the party who asserts the affirmative of the issue.

Following the Federal Court decision, section 102 should be read “onus of proof” in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

The initial onus of proving the case is always on the plaintiff. The plaintiff, at the start of the of the plaintiff’s case, has the legal burden of proving the existence of any relevant fact and the evidential burden of the existence of such fact. The evidential burden is necessary in assisting the plaintiff in establishing a prima facie case, as section 102 provides that the plaintiff “would fail if no evidence at all were given on either side”.

When the plaintiffs have gave enough evidence to support a prima facie case, the onus shifts to the defendant, to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff.

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Criminal case

In criminal cases, the prosecution has the legal burden to prove the case throughout the trial, pursuant to section 101 and its illustration (a).

At common law, it is well established that it is for the prosecution to prove the case beyond reasonable doubt at every stage of the proceedings to press for conviction (per Viscount Sankey LC in Woolmington v DPP [1935]).

In the Privy Council case PP v Yuvaraj [1968] Lord Diplock considered the definitions of “proved”, “disproved” and “not proved” under section 3 of the Evidence Ordinance and held that “the requirement of the section is satisfied if, and only if, after considering the matters before it the Court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist”.

The degree of probability depends upon the nature of the proceedings and what will be the consequence in those proceedings of a finding that a fact is “proved” or “disproved”. If that consequence will be the determination of a civil suit in favour of one party a balance of probabilities is all that is necessary. It is sufficient that upon the evidence the Court considers that it is more likely than not that the fact exists or does not exist. In criminal proceedings on the other hand, by an exception to the general rule founded upon considerations of public policy, if the consequence of a finding that a particular fact is proved will be the conviction of the defendant the degree of probability must be so high as to exclude any reasonable doubt that that fact exists.

Lord Diplock held that although section 3 of the Evidence Ordinance applies to civil and criminal proceedings alike and draw no explicit distinction between facts required to be proved by the prosecution in criminal proceedings and facts required to be proved by a successful party to civil proceedings, it cannot be supposed that the Evidence Ordinance has intended to abolish the historic distinction fundamental to the administration of justice under the common law, between the burden which lies upon the prosecution in criminal proceedings to prove the facts which constitute an offence beyond all reasonable doubt and the burden which lies upon a party in a civil suit to prove the facts which constitute his cause of action or defence upon a balance of probabilities.

In Mohamad Radhi bin Yaakob v PP [1991] the Supreme Court held that the general burden of proof lays throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence with which he is charged. There is no similar burden placed on the accused to prove his innocence. He is presumed innocent until proven guilty. He is not required to prove his innocence beyond reasonable doubt. To earn an acquittal at the close for the prosecution case under section 173(f) and section 180 of the Criminal Procedure Code, a prima facie case is made out if the court is satisfied that no case against the accused has been made out which if unrebutted would warrant his conviction. If defence is called, the duty of the accused is only to cast a reasonable doubt in the prosecution case. He is not required to prove his innocence beyond reasonable doubt.

In the Federal Court case of PP v Gan Boon Aun [2017], Jeffrey Tan FCJ states that the prosecution has the legal burden to prove the guilt of an accused beyond all reasonable doubt. Generally the prosecution has the duty to prove the guilt of an accused, and the accused, on the other hand, does not have any duty to prove anything. In order to earn an acquittal, the accused merely need to cast a reasonable doubt over the prosecution’s case, in the event that a prima facie case has been made out.

While it is the prosecution’s duty to prove the case beyond a reasonable doubt, the accused has to merely cast a reasonable doubt: Shah Rehan Abdul Rahman v PP [2015]

Criminal case - The meaning of ‘beyond reasonable doubt’

In relation to what amount to a “reasonable doubt”, Denning J (as he then was) in Miller v Minister of Pensions [1947] observed that:

“The degree is well settled. 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 doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence' of course it is possible, but not in the least probable' the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

Denning J went on to say that:

“That evidence that is in the least probable must be evidence that is credible, plausible or logical such that a reasonable person, having regard to the ordinary course of nature or natural events, human conduct, and in the particular circumstances of the particular case, would accept it as to act upon it as having occurred, or as truthful or accurate; and not a doubt that could, with the application of some ingenuity, be conjured up, envisioned or visualised in a story.”

Miller v Minister of Pensions [1947] has been referred by Thomson CJ in Liew Kaling & Ors v PP [1960], where he stated that,

“…the standard which a prudent man will apply to the question of whether he should take a box of chocolates home to his wife is something different from the standard he will apply to the question of whether he should take the good lady a valuable diamond ring. He will apply a different standard to the question of whether his butler has helped himself to a little of his whisky than he will to the question of whether his wife has been seduced by his gamekeeper. In other words the standard which the prudent man will apply to any question which confronts him will vary according to the importance of the question itself.”

Furthermore, Sharma J in PP v Saimin [1971] observed that:

“It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.”

In PP v Datuk Haji Harun bin Haji Idris & Ors [1977], Abdoolcader J (as he then was) explained that:

“It is not necessary for the defence to prove anything and all that is necessary for the accused to do is to give an explanation that is reasonable and throws a reasonable doubt on the case made out for the prosecution. It cannot be a fanciful or whimsical or imaginary doubt, and in considering the question as to whether a reasonable doubt has been raised, the evidence adduced by and the case for the defence must be viewed in at least some amount of light, not necessarily bright sunlight, but certainly not against the dark shadows of the night.”

It can be summarised therefore that the phrase “reasonable doubt” excludes fanciful or imaginary doubts or stories that are so obviously conjured up so as not to be in accord with the ordinary course of nature or human conduct when viewed and appraised from the test of reasonableness. The foregoing of course, are only guidelines and the court must apply these according to all the circumstances of the case.

Criminal case - At the conclusion of the trial

For the purpose of the prosecutorial legal burden, a distinction must be made between a prima facie case (at the end of the prosecution case) and a case beyond reasonable doubt (at the conclusion of the trial).

At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt: section 173(m) & 182A Criminal Procedure Code

In Mat v PP [1963], Suffian J (as his Lordship then was) gave some guidelines relating to Woolmington test to Magistrate to deal with the burden at the end of the defence case. According to Suffian J, even if the judge does not believe or is unwilling to accept the explanation given by the accused, there is a duty incumbent upon him to consider whether the defence has somehow raised a reasonable doubt over the prosecution case. That is to say, the judge is bound to acquit the accused if the explanation raises a reasonable doubt as to his guilt.

“The position may be conveniently stated as follows:

(a) If you are satisfied beyond reasonable doubt as to the accused's guilt: Convict.

(b) If you accept or believe the accused's explanation: Acquit.

(c) If you do not accept or believe the accused's explanation: Do not convict but consider the next steps below.

(d) If you do not accept or believe the accused's explanation and that explanation does not raise in your mind a reasonable doubt as to his guilt: Convict.

(e) If you do not accept or believe the accused's explanation but nevertheless it raises in your mind a reasonable doubt as to his guilt: Acquit.”

The approach in Mat v PP [1963] was judicially endorsed by the Federal Court as being the correct one to adopt when evaluating the evidence of the defence case in PP v Mohd Radzi Bin Abu Bakar [2006].

In Prasit Punyang v PP [2014], it was held that the emphasis must be on the word “all” employed in section 182A.

In Md Zainudin bin Raujan v PP [2013], the Federal Court states that section 182A imposes a duty on the trial court, at the conclusion of the trial, to consider all the evidence adduced before it and to decide whether the prosecution has proved its case beyond reasonable doubt. The defence of the accused must be considered in the totality of the evidence adduced by the prosecution, and the judge must decide whether it has cast a reasonable doubt as to his guilt.

Criminal case - Prima facie case

The term “prima facie” refers to that stage of the trial which marks the end of the prosecution’s case. Defence would be called once the court is persuaded that there is a prima facie case.

Mozley and Whiteley’s Law Dictionary defines prima facie case as:

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

This definition has been preferred and relied on by the courts.

Prior to the amendment in 1997, section 173(f) and section 180 of the Criminal Procedure Code contained the expression “if unrebutted would warrant his conviction”.

In PP v Chin Yoke [1939], it was held that the court must necessarily accept the whole of the evidence for the prosecution at its face value. The accused would be called upon to answer the prima facie case if the Court is satisfied with the prosecution case to the extent that, if unrebutted, would warrant the accused’s conviction.

In the Court of Appeal case of Soo Sing & Ors v PP [1951], it was held that it is the duty of the court at the close for the prosecution case, to determine whether or not the evidence tendered on behalf of the prosecution, if unrebutted, has established the case against the accused beyond reasonable doubt.

In the Singapore Court of Appeal case of Ong Kiang Kek v PP [1970], Wee Chong Jin CJ held that the law imposes a duty on the court, to consider at the close of the case for the prosecution whether or not a case has been made out against the accused which “if unrebutted would warrant his conviction”. The court is obliged to acquit an accused if at the close for the prosecution case the court is satisfied beyond a reasonable doubt that these facts tendered by the prosecution had proved that the accused should not have called upon the accused for his defence.

In PP v Saimin & Ors [1971], Sharma J held that the Magistrate has a duty to acquit and discharge the accused at the close for the prosecution case, if he is not satisfied with the prosecution case beyond reasonable doubt.

However, in the Privy Council case of Haw Tua Tau v PP [1987], having regard to section 188(1) of the Singapore Code, which also contained the expression “if unrebutted would warrant his conviction”, Lord Diplock observed that for reasons that are inherent in the adversarial character of criminal trials under the common law system, it does not place upon the court a positive obligation to make up its mind at that stage of the proceedings whether the evidence adduced by the prosecution has by then already satisfied it beyond reasonable doubt that the accused is guilty. He went on to mention that it would run counter to the concept of what is a fair trial under that system to require the court to do so.

According to Lord Diplock, for the purpose of determining whether there is a prima facie case, the court must act on the presumption:

(a) That all such evidence of primary fact is true, unless it is inherently so incredible that no reasonable person would accept it as being true;

(b) That there will be nothing to displace those inferences as to further facts or to the state of mind of the accused which would reasonably be drawn from the primary facts in the absence of any further explanation.

In other words, there is a prima facie case if the primary facts adduced by the prosecution are not “inherently incredible” and there is no any further explanation to the said primary facts. The court will undertake a minimal evaluation of the evidence tendered by the prosecution, in order to determine whether the prosecution’s evidence is “inherently incredible”. Given that the expressions “primary facts” are used, the court is merely required to evaluate the essential element of the alleged offence. “Secondary facts”, on the other hand, such as the credibility of the prosecution witness, would remain unchallenged at the prosecution case.

Haw Tua Tau v PP [1987] has been applied by the Malaysian Courts in Munusamy v PP [1987] and Junaidi Abdullah v PP [1993].

However, the Supreme Court in Khoo Hi Chiang v PP [1994] declined to follow the Haw Tua Tau v PP [1987] and held that the Privy Council decision on the burden of proof was obiter dicta. Having regard to numerous pre-Haw Tua Tau authorities, it was held that at the end of the prosecution case, it is the duty of the prosecution to undertake a maximum evaluation of the evidence tendered by the prosecution, to determine whether or not the prosecution has established the charge against the accused beyond reasonable doubt

In Tan Boon Kean v PP [1995], the Federal Court held that the duty of the Court, at the close of case for the prosecution, is to undertake a maximum evaluation of the evidence tendered by the prosecution. It follows that at the close of the case for the prosecution, two questions need be addressed, namely the question of evidence with regard to the requirement of “maximum evaluation” and the question of law with regard to the requirement of making out a case against the accused under section 180.

While this so-called ratio of Khoo Hi Chiang v PP [1994] was applied by the Federal Court, Mohd Azmi FCJ  stated held that the interpretation of the word “case” referred to in section 180 in Khoo Hi Chiang v PP [1994] as an obiter dicta whilst the Court was dealing with the principal issue of maximum evaluation of the evidence. It was held that the duty of the prosecution at the end of the prosecution case, under section 180 of the Criminal Procedure Code, is to prove a “prima facie case”, and the threshold for “prima facie case” is a case “which if unrebutted would warrant his conviction”, and not “a beyond reasonable doubt case”.

According to Mohd Azmi FCJ, in an adversarial system of criminal justice, the final decision on whether the accused is beyond reasonable doubt guilty of the offence with which he is charged must remain an open question until the end of the trial. To require a “beyond reasonable doubt” to be proved even at the close of the case for the prosecution, would render the words “if unrebutted” and “would warrant his conviction” in section 180 meaningless and redundant.

Subsequently, in the Federal Court case of Arulpragasan Sandaraju v PP [1996], there were differences of opinion amongst the judges themselves. According to the majority (5-2) decision, the prosecution has the burden throughout the case in any criminal trial to prove the charge against the accused beyond reasonable doubt. The same burden of proof applies at the close of the prosecution case. Consequently the Court is required to undertake a maximum evaluation of the evidence at the close for the prosecution.

Mohd Azmi FCJ, in dissenting, adheres to his view as expressed in the previous case, and went further to say that the test of prima facie case is a hypothetical one. Given that at end of the prosecution case the credibility of witness need not be conclusive as it is evaluated on the assumption that no further evidence is forthcoming. As such, the Court must keep an open mind on the question of guilt until the conclusion of the trial. Therefore, the determination of prima facie case under section 180 is quite different and distinct from the process of finding the accused guilty beyond reasonable doubt under section 183.

The Criminal Procedure (Amendment) Act 1997 has, inter alia, amended section 173 and section 180. After the amendment in 1997, section 173(f) and section 180 contain the expression “prima facie case”.

Section 173(f) now reads:

(i)                  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.

(ii)                If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal.

Section 180 now reads:

(1)               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.

(2)               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.

(3)               If the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter on his defence.

After the amendment of the Criminal Procedure Code, the statutory test had been changed. The court is then required to determine if there is a prima facie case at the close for the prosecution case.

In PP v Dato’ Seri Anwar bin Ibrahim (No. 3) [1999], Augustine Paul J held that under the amended section 180, 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. For there to be a prima facie case, the prosecution must persuade the court to believe the existence of the facts in the charge or to consider its existence so probable that a prudent man ought to act upon 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 witness 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. Although 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, this does not mean that the prosecution, at that stage, must prove the case beyond reasonable doubt.

In the Court of Appeal case Looi Kow Chai & Anor v PP [2003], Gopal Sri Ram JCA held that pursuant to the amended section 180, at the close of the case for the prosecution, in determining whether there is a prima facie case against the accused, the judge must subject the evidence of the prosecution to a maximum evaluation and then ask himself this 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’s case. If the answer is in the negative, then no prima facie case has been made out, and the accused is entitled to an acquittal. It was also duly noted that subjecting the prosecution’s evidence to a maximum evaluation to determine if the defence is to be called does not mean that the prosecution has to prove its case beyond a reasonable doubt at that intermediate stage.

In the Federal Court case Balachandran v PP [2005], Augustine Paul JCA explained the different standards of proof. While section 180 makes it clear that the standard of proof on the prosecution at the close of its case to make out a prima facie case, section 182A 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. A prima facie case is one that is sufficient for the accused to be called upon to answer. 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. Furthermore, in determining whether there is a prima facie case, the court must at the close of the case of prosecution, undertake a positive evaluation of the credibility and reliability of all the evidence adduced so as to determine whether the elements of the offence have been established.

More importantly, Augustine Paul JCA also mentioned that while the accused can be convicted on the prima facie stage (therefore it must have reached a standard which is capable of supporting a conviction beyond reasonable doubt), it is inappropriate to describe it as a case that has been proved beyond reasonable doubt. Proof beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt the other is the evidential burden on the accused to raise a reasonable doubt. Both these burdens can only be fully discharged at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by section 182A(1) of the Criminal Procedure Code. That would normally be the position where the accused has given evidence. However, 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 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.

In the Federal Court case PP v Mohd Radzi bin Abu Bakar [2006] Gopal Sri Ram JCA held that after the amendments to section 173(f) and section 180, the court is required to call for the defence when it is satisfied that a prima facie case has been made out at the close of the prosecution case. This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call on the accused to enter upon his or her defence. It involves an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution's evidence admits of two or more inferences, one of which is in the accused's favour, then it is the duty of the court to draw the inference that is favourable to the accused.

If the court, upon a maximum evaluation of the evidence placed before it at the close of the prosecution case, comes to the conclusion that a prima facie case has not been made out, it should acquit the accused. If, on the other hand, the court after conducting a maximum evaluation of the evidence comes to the conclusion that a prima facie case has been made out, it must call for the defence. If the accused then elects to remain silent, the court must proceed to convict him. It is not open to the court to then re-assess the evidence and to determine whether the prosecution had established its case beyond a reasonable doubt. The absence of any evidence from the accused that casts a reasonable doubt on the prosecution's case renders the prima facie case one that is established beyond a reasonable doubt.

The Criminal Procedure Code (Amendment) Act 2006 has, inter alia, amended section 173 and section 180. This amendment took effect on 7 September 2007.

Section 173(h)(iii) now reads:

“For the purpose for subparagraphs (i) and (ii) 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.”

Section 180(4) now reads:

“For the purpose of this section, 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 appears that the amended sections bring no changes to the application of law. Post-amendment cases have constantly taking the abovementioned pre-amendment cases as the authorities in determining whether there has been prima facie case.

In the Court of Appeal case Losali v PP [2012], having regard to section 180(4) and the abovementioned authorities, it was held that in determining whether there is a prima facie case at the close for the prosecution’s case, the evidence led by the prosecution in the course of the prosecution's case must be evaluated at a maximum level. The purpose of undertaking such a maximum evaluation is to test the credibility of the prosecution's witnesses and at the same time to ensure that all the requisite ingredients of the offence have been made out. In addition, the Court of Appeal held that a bare denial is insufficient to cast a reasonable doubt.

In the Court of Appeal case Ekene Boniface Ochiada v PP [2017], it was held that at the conclusion of the prosecution's case it would be incumbent on the part of the learned trial judge to undertake a maximum evaluation of all evidence adduced by the prosecution including all assumptions or inferences which arose from the evidence of the prosecution's witnesses.

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Direct evidence and circumstantial evidence

All judicial evidence is either direct or circumstantial evidence. Direct evidence is evidence that is attested directly by witnesses, things or documents. Direct evidence is evidence purportedly showing the existence or non-existence of fact in issue, without the need of reasoning and inference.

To all other forms of evidence, the term ‘circumstantial evidence’ is employed. Circumstantial evidence is evidence of relevant facts from which the existence or non-existence of facts in issue may be inferred indirectly.

In PP v Sarjit Kaur Najar Singh [1998], the accused was charged for the murder of her husband, who was found dead in their house with slash wounds on his neck. The prosecution sought to prove its case solely by way of circumstantial evidence, and adduced evidence inter alia suggested that the accused was an unfaithful wife, that she had been ill-treated by her husband, and that she stood to benefit financially from her husband’s death. It was held that the prosecution had failed to establish a prima facie case.

In PP v Hanif Basree Abdul Rahman [2008], the accused was charged for the murder of his intimate friend. The deceased body was found by her apartment mate and roommate. She was found facing downwards on the mattress on the floor of her room. Her head was inside a tied pillow case and her mouth was stuffed with two face towels. Her hands were tied behind her with a black brassiere. Her legs were also tied but with a black electrical cord. Wet tissue papers were recovered from a waste paper basket in the deceased's room. She was completely naked but the body was covered with a comforter when she was first seen.

The chemist report showed that the DNA profile of the accused was found in the deceased’s vagina and on several items in her room. However, the chemist report also showed the existence of another DNA profile of an “Unknown Male 1” in the deceased’s vagina and anus and on several items in her rooms like the tissues paper, face towel, bolster, black brassiere, the fingernails of the deceased's left hand and the strands of hairs recovered from the deceased's comforter and bedsheet. It was submitted that the deceased and the accused and the “Unknown Male 1” had had sexual intercourse with the deceased within 72 hours of her death. The expert could not with certainty say that the accused was the last person to have had sexual intercourse with the deceased.

In spite of such facts, the Federal Court held that there were too many doubts in the prosecution’s case and that the inferences made, rendered an appearance more favourable to the accused. The prosecution had, therefore, failed to establish a prima facie case.

In the Federal Court case Sunny Ang v PP [1966], the accused was charged for the murder of his girlfriend Jenny. The evidence relied upon by the prosecution was wholly circumstantial. This case marked the first time the prosecution had won a case that was based entirely on circumstantial evidence. The accused was one of the last murderers to be sent to the gallows by a jury; Singapore abolished jury trials in 1969.

It was submitted that the victim disappeared during a diving trip near the Sisters’ Islands, just a few month after they met. The accused hired a boatman Yusof, who had taken both the accused and the victim to a place between the two islands where Yusof dropped the anchor. The accused assisted the victim to put on the diving equipment which had been brought in the sampan and allowed the victim, a novice diver, to go down alone, wearing a flipper which had previously been cut, into waters which he knew were dangerous and hazardous with the result that she met her death. The accused did not go down into the water himself even after the victim had failed to come to the surface. According to Yusof, the accused acted “normal” even though he was faced with the prospect that his girlfriend may have died.

Her body was never found. All that remained was a single flipper worn by her. The flipper was found somewhere near to the place she had gone into the water. It had been severed cleanly at the top and bottom, likely by a sharp instrument such as a knife or razor blade. According to an expert witness, the loss of a flipper would have resulted in a diver’s loss of equilibrium and affected the person's mobility. The victim, an inexperienced diver, would have panicked and inevitably drowned in the strong currents swirling around the islands.

The victim was a waitress. She was paid $90 a month and her main source of income the $10 she earned each day in tips from customers. When the victim disappeared, her accident coverage amounted to $400,000. Three weeks before she disappeared, the accused took the victim to make a will leaving her entire estate to his mother, whom she hardly knew. A day before her disappearance, one of her policies expired. Three hours before the diving trip, the accused extended that policy for just five days. It was submitted that the accused was bankrupt at the date of the accident. He was in need of money and that could be a motive for the crime.

One of the matters relied on at the hearing of the appeal was that the learned trial Judge had erred in law in failing adequately to direct the jury on the danger of convicting an accused person upon circumstantial evidence.

There are two passages in the summing-up which are relevant in this connection. The first passage, which comes after the direction in which the learned trial Judge deals with what he refers to as the first question of the cumulative effect of circumstantial evidence, is as follows:-

“The second question to which I must draw your attention is that the question in this case, depending as it does on circumstantial evidence, is whether the cumulative effect of all the evidence leads you to the irresistible conclusion that it was the accused who committed this crime. Or is the resome reasonably possible explanation such, for example - 'Was it an accident?'.”

The second passage is as follows:

“Now, as I told you earlier on, one of the points about circumstantial evidence is its cumulative effect. Any one of these points taken alone might, you may think, be capable of explanation. The question for you is: where does the totality of them, the total effect of them, all lead you to? Adding them together, considering them, not merely each one in itself, but altogether, does it or does it not lead you to the irresistible inference and conclusion that the accused committed this crime? Or in there some other reasonably possible explanation of those facts?

The prosecution case is that the effect of all this evidence drives you inevitably and inexorably to the one conclusion and one conclusion only: that it was the accused who intentionally caused the death of this young girl.”

The Federal Court held that these directions are perfectly adequate in a case where the prosecution is relying on circumstantial evidence. Although Jenny's body has never been found, the Federal Court held that there is overwhelming evidence on the record that the appellant murdered her.

In Juraimi bin Hussin & 2 Ors v PP [1998] the three appellants were jointly charged for the murder of Dato Mazlan, a member of the Legislative Assembly of the State of Pahang. The body of Dato Mazlan was recovered. It had been decapitated and cut into 18 pieces. It was found buried in premises occupied by the appellants. The Court of Appeal summarised the circumstantial evidences as follow:

First, there is the fact, already alluded to, that the decapitated body of Dato Mazlan was recovered from the house at Ulu Dong occupied by the three accused. Second, it was proved that Dato Mazlan's death was caused by the severance of his head by a weapon similar to the axe (exh P14) recovered at the same premises. Third, on 2 July 1993, Dato Mazlan withdrew about RM300,000 from his bank accounts. Fourth, he was last seen alive in his car with the second accused, heading in the direction of the house occupied by the accused persons. Fifth, at about 1am on 3 July 1993, PW5 heard Dato Mazlan's car leaving the house at Ulu Dong. At about 3am on the same morning, the second accused and one other person checked into the Plaza Hotel at Kuala Lumpur. Sixth, between 3 July 1993 and 18 July 1993, the second and third accused embarked on a spending spree. During this period, they spent more than RM200,000. Of this sum, about RM160,000 was spent on the morning of 3 July 1993. Payments by the second and third accused were made in RM1000 notes, which is the same denomination in which Dato Mazlan had earlier withdrawn his money. Seventh, the second accused was with Dato Mazlan shortly after the latter had made the withdrawal from his banks and shortly before he disappeared. Eighth, there is no quarrel that Dato Mazlan met his death in the hands of the first accused in the late hours of 2 July 1993 at the house occupied by the three accused persons. Ninth, the second and third accused persons were in financial straits before 3 July 1993. The second and third accused claimed that they had sold to Dato Mazlan a walking stick, songkok and talisman alleged to possess magical powers for a sum of RM2,000,000. They also claimed that they had earlier received RM500,000 from Dato Mazlan as part payment for this sale. If these allegations were true, the question arises as to why the second and third accused did not go on a spending spree earlier than 3 July 1993. Tenth, the second accused had Dato Mazlan's identity card or NRIC in his possession. He gave this card to PW39 on 9 July 1993 for the purpose of selling Dato Mazlan's car. Eleventh, the third accused was in possession of Dato Mazlan's watch, which she gave to her brother (PW28) on 5 July 1997. Twelfth, the first and second accused checked out of Plaza Hotel on 4 July 1997 and on the same day checked into Park Royal Hotel. However, they left Dato Mazlan's car in the basement car park of the Plaza Hotel. It certainly suggests an attempt on their part to distance themselves from the disappearance of Dato Mazlan. But there was no explanation from either accused for this act of abandonment. Thirteenth, on 8 July 1993, the second and third accused together with PW28 proceeded to the house at Ulu Dong in a limousine hired by the second accused and driven by PW39. At Ulu Dong, the second accused told PW39 that he had bought the land on which the house stood in order to develop it into a resort. The third accused then informed PW28 that she and the second accused had recently purchased the land. These two statements were far removed from the truth, which was that the land in question belonged to Dato Mazlan. Fourteenth, on the return journey from Ulu Dong to Kuala Lumpur, the second accused, in the presence of the third accused and PW28, asked PW39 of the possibility of selling a car which belonged to a friend, a Dato, who had lost heavily at the gaming tables. The second accused went on to say that the Dato in question had borrowed money from him (the second accused) and wished to repay it by selling his car. On the following day, that is to say, 9 July 1993, the second accused, the third accused and PW39 were in Room 2005 at the Park Royal Hotel. That room was, at that time, under occupation by the second and the third accused. The second accused then informed PW39 that the Dato earlier refused to meet anyone concerning the sale of his car because he was ashamed at having lost his fortune at gambling. All these statements were false because the car in question belonged to Dato Mazlan who was already dead. Fifteenth, the body of Dato Mazlan was buried in a hole in the ground soon after he was killed. The hole must have already been dug earlier because it is highly improbable that a hole so large was dug up after the deed had been done. This goes to support the prosecution's contention that there was a pre-arranged plan on the part of the three accused to kill Dato Mazlan. Sixteenth, there is evidence that Dato Mazlan's shoes were found in the first accused's bedroom. No explanation was given as to how they came to be there. Seventeenth, there is evidence that some time after the murder had been committed, Mazlan's cousin visited the house at Ulu Dong. Only the first accused was there. The other two accused persons were in Kuala Lumpur. On being questioned by the cousin, the first accused falsely denied any knowledge of Dato Mazlan's whereabouts. Soon after this visit, the first accused admittedly concealed the axe (exh P14) and burnt Dato Mazlan's sarong and trousers. The first accused then proceeded to Kuala Lumpur in search of the second and third accused. Lastly, examination showed no defensive injuries on the body of Dato Mazlan, indicating that he had not put up a struggle of any sort. The fair inference that a reasonable jury would draw from this evidence is that a savage attack took place upon an unsuspecting victim.

Based on the circumstantial evidences, the three appellants were found guilty and sentenced to death.

Standard of proof with regards to circumstantial evidence

In Kartar Singh v PP [1952] Murray-Aynsley J observed that:

“…it is necessary to distinguish between the effect of direct and of circumstantial evidence. Where there is direct evidence, however, slight, the jury are entitled to accept it and the case should be left to them to decide. In the case of circumstantial evidence the position is different. Here the evidence must be such that, if it is 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.”

In Idris v PP [1960] Lords Cairns’ statement in Belhaven & Stenton Peerage [1875] was used:

“My Lords, in dealing with circumstantial evidence we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand you may have a number of rays, each of them insufficient but all converging and brought to bear upon the same point and when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.

In other words circumstantial evidence consists of this: that when you look at all the surrounding circumstances, you find such a series of undesigned, unexpected coincidences that, as a reasonable person, you find your judgment is compelled to one conclusion. If the circumstantial evidence is such as to fall short of that standard, if it does not satisfy that test. If it leaves gaps then it is of no use at all.”

In Chan Chwen Kong v PP [1962] Thomson CJ observed that:

“…where the evidence is wholly circumstantial what has to be considered is not only the strength of each individual strand of evidence but also the combined strength of these strands when twisted together to make a rope.”

In Sunny Ang v PP [1965] the direction given by the trial court, which Tan Ah Tah CJ found to be perfectly adequate in a case where the prosecution are relying on circumstantial evidence, as mentioned above.

In the Federal Court case Karam Singh v PP [1967] Ong Hock Thye FJ observed that:

“In a case where the prosecution relies on circumstantial evidence, such evidence must be inconsistent with any other hypothesis than that of the guilt of the accused.”

In the Federal Court case Chang Kim Siong v PP [1967] Pike CJ observed that:

“The onus on the prosecution when the evidence is of a circumstantial nature is a very heavy one and that evidence must point irresistibly to the conclusion of the guilt of the accused. If there are gaps in it, then it is not sufficient.”

In Mohd Khayry Ismail v PP [2014] Hamid Sultan Bin Abu Backer JCA summarised the test as follow:

“In essence, though the prosecution case was based on circumstantial evidence, the narrative was such that any reasonable tribunal properly appraised will have no reasonable alternative to the guilt of the accused.”

In Lim Hean Chong v PP [2012] the Court of Appeal referred to the Indian case of Chandmal & Anor v State of Rajasthan [1970], where a three-step test was prescribed for the admissibility of circumstantial evidence:

“It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. That is to say the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused's guilt.”

It follows the circumstantial evidence adduced by the prosecution must point irresistibly to the conclusion of the guilt of the accused. The accused shall be acquitted if there were gaps in the prosecution’s case.

In McGreevy v DPP [1973] the House of Lords held that in cases in which the prosecution's case is based on circumstantial evidence and the accused is proved to be guilty beyond reasonable doubt, there is no need for a special direction of the irresistible conclusion test. The House of Lords decision has been applied by the Federal Court in Jayaraman & Ors v PP [1982].

In Jayaraman & Ors v PP [1982] Suffian LP observed that:

“Where circumstantial evidence is the basis of the prosecution case, the evidence proved must irresistibly point to one and only conclusion, the guilt of the accused, but in the case tried without a jury the failure by the court to expressly state this is not fatal and it would suffice if it merely says that it is satisfied as to the guilt of the accused beyond reasonable doubt.”

According to the Federal Court, the irresistible conclusion test is another way of saying that the prosecution must prove the guilt of the accused beyond reasonable doubt. It does not place on the prosecution a higher burden of proof, and Suffian LP agreed with Syed Othman FJ that it is only a “play on words”.

This has been applied by the Federal Court in the cases of Dato’ Mokhtar Hashim & Anor v PP [1983] and PP v Hanif Basree Abdul Rahim [2004].

In Yeap Boon Hai v PP [2009] the Court of Appeal applied Jayaraman & Ors v PP [1982] and held that In a case depending on circumstantial evidence, it is enough if the court merely says that it is satisfied of the accused's guilt beyond reasonable doubt, without further saying that the facts proved irresistibly point to one and only one conclusion, namely the accused's guilt.

In addition, where a conviction was to be based on circumstantial evidence, motive behind the crime was a significant consideration as was laid down in PP v Hanif Basree Abdul Rahim [2004] as follows:

“It is not incumbent upon the prosecution to prove the motive for a crime. However if the crime is alleged to have been committed for a particular motive, as is the case here, it is relevant to inquire whether the pattern of the crime fits in with the alleged motive. Where a case is based on circumstantial evidence the motive for committing that crime assumes greater importance. It is certainly an important strand of circumstantial evidence to impute the accused's guilt…”

Proving particular facts (i.e. the defence of alibi)

Section 103 requires a defence of alibi to be proved by the accused, while section 402A(2) of the Criminal Procedure Code deals with the procedure to be followed when the defence of alibi is introduced.

By virtue of section 103, if the accused wishes the court to believe in the existence of a particular fact, he will have the burden to prove that fact.

Illustration (b) to section 103 specifically requires B, who "wishes the court to believe that at the time in question he was elsewhere", to prove it.

There is no statutory definition of “alibi”. However it is a Latin adverb which means “elsewhere at another place”.

Section 402A of the Criminal Procedure Code provides that any evidence in support for a defence of alibi shall not be admitted unless the accused has given a written notice of the alibi to the Public Prosecutor.

Section 402A of the Criminal Procedure Code requires the accused to give ten days' notice of their intention to raise a defence of alibi (now during the case management process), and section 402A(2) requires the accused “to include particulars of the place where the accused claims to have been at for the purpose of establishing his alibi”. The same provisions of then section 402A(2) can still be found in section 402A(4) now.

In the Federal Court case Dato’ Mokhtar Hashim & Anor v PP [1983], Eusoffe Abdoolcader FJ explained that in light of the amendment of CPC, the concluding words of section 402A(2) “for the purpose of establishing his alibi” are significant and would seemingly put a probative burden on an accused. Consequently the accused assume a legal burden to prove his defence of alibi on balance of probabilities by raising the defence. The Federal Court decision has been applied by the Court of Appeal in Empati Mat v PP [2010].

However the Federal Court decision was not followed by the Supreme Court in Yau Heng Fang v PP [1985]. According to Mohamed Azmi SCJ, the object of section 402A provides nothing more than the procedural rules to be complied with in order to raise the defence of alibi in trial. In enacting section 402A in Criminal Procedure Code, the legislature did not intend to introduce a new legal burden on the accused to establish his defence of alibi. The accused only assume an evidential burden to cast a reasonable doubt by raising the defence of alibi.

In Illian v PP [1988], the Supreme Court confirmed its earlier decision in Yau Heng Fang v PP [1985] and held that in raising the defence of alibi the accused only need to raise a reasonable doubt in the prosecution's evidence.

According to the Court of Appeal in Dato’ Seri Anwar Ibrahim v PP & Another Appeal [2003], given that it was the defence that wanted the trial judge to accept the fact the defence of alibi prevailed, it should therefore be for the defence to establish it so as to cast reasonable doubt on the prosecution’s case and not for the prosecution to disprove once a mere assertion has been made.

In Duis Akim & Ors v PP [2013], the Federal Court had considered numerous authorities on the defence of alibi and held that once an accused pleads an alibi he does not assume the burden to prove it is true. The onus is on the prosecution to prove by evidence the alibi is false and to place the accused squarely at the scene of crime. The evidence of his alibi need only raise a reasonable doubt that he committed the crime.

In PP v Azilah Hadri & Anor [2015], the Federal Court held that if the prosecution fails to establish a prima facie case then the need by the accused person to prove his alibi defence does not arise; but once the prosecution discharges his prosecutorial burden of proof that led to the establishment of the prima facie case, it then becomes incumbent upon the accused person to cast a reasonable doubt that he was elsewhere. This is a heavy burden on the accused and that burden flows from section 103.

The decisions of Duis Akim & Ors v PP [2013] and PP v Azilah Hadri & Anor [2015] have been confirmed and applied recently in the Federal Court case of Pathmanabhan Nalliannen v PP & Other Appeals [2017].

In a nutshell, while the wordings of section 103 of the Evidence Act 1950 and section 402A of the CPC appear to place the legal burden of proof on the accused to prove his defence of alibi, the accused is in fact only required to discharge his evidential burden of casting a reasonable doubt on the prosecution case.

According to Mariette Peter, it is necessary to examine the nature of the defence, as the defence of alibi involves an element of the prosecution’s case, in which the existence of alibi itself would negate the actus reus of most of the criminal offences and thereby casting a reasonable doubt on the prosecution’s case.

On the other hand, in light of the Federal Court decision Letchumanan Chettiar Alagappan (As Executer to SL Alameloo Achi (Deceased)) & Anor v Secure Planation Sdn Bhd [2017], in which Jeffrey Tan FCJ stated that the expressions ‘burden of proof’ in section 103 is actually referring to the ‘onus of proof’ or ‘evidential burden’, it can be safely concluded that the accused merely assume an evidential burden to cast a reasonable doubt on the prosecution case upon raising the defence of alibi.

Statutory defence

Once the prosecution has made out a prima facie case, and if the accused want to rely on a statutory defence, the accused has the legal burden to prove statutory defences, pursuant to section 105.

Section 105 provides that ‘when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances’.

The position is well-illustrated in the illustrations to section 105.

This has been confirmed by the Courts in Jayasena v R [1970], Lee Chin Hock v PP [1972] and Abdul Razak Dalek v PP [2010].

The standard of proof is on a balance of probabilities: Ikau Anak Mail v PP [1973] and Enthiran Rajoo v PP [2015].

General exceptions in the Penal Code include:

(a)      Section 79 mistake

(b)      Section 80 accident or misfortune: Abdul Aziz Miew Yiong v PP [2014]

(c)      Section 84 unsound mind i.e. insanity: Jayasena v R [1970] Ikau Anak Mail v PP [1973], Sum Yat Loy v PP [2012], Enthiran Rajoo v PP [2015] and Kenneth Fook Mun Lee v PP [2006]

(d)      Section 85 intoxication: Chan Kwee Fong v PP [2010]

(e)      Section 96 – 106 private defence: Jayasena v R [1970]

Special exceptions in the Penal Code include:

(a)    Grave and sudden provocation: Chan Kwee Fong v PP [2010]

(b)   Sudden fight: Abdul Razak Dalek v PP [2010]

(c)    Consent

Section 105 has been held to also apply to the common law defence of automatism. Although the defence is not a statutory one, it was held in the Court of Appeal in PP v Kenneth Fook Mun Lee (No. 1) [2010] and in the Federal Court in Abdul Razak Dalek v PP [2010] that automatism is covered by the defence of insanity and therefore falls within the purview of section 105

In PP v Yuvaraj [1968], the Privy Council held that the accused has a legal burden of proving the statutory exception under the Prevention of Corruption Act 1961 on balance of probabilities.

In Lee Chin Hock v PP [1972], the Federal Court held that the legal burden of proving the statutory exception under the Internal Security Act 1960 lies on the accused.

Ms. Mariette Peter argued that section 105 should not be read in isolation but must be read in relation to the Evidence Act 1950 as a whole, in particular section 101 and section 102, as explained by the Supreme Court in Nagappan a/l Kuppusamy v PP [1988]. The consequence of reading section 105 in isolation would undermine the well-established principle that the prosecution has the legal burden to prove the guilt of the accused beyond reasonable doubt.

In R v Chanderasekara [1942] it was held that a distinction should made between two types of defences, namely, those that affect the elements of the case for the prosecution and those that do not.

An example of the former is the defence of accident. When the accused relies on the defence of accident, he is in fact disputing the element of mens rea in the prosecution’s case. As such, it can be said that the accused is entitled to an acquittal as long as he has cast a reasonable doubt on the prosecution case, as a prima facie case has not been made out in the absence of the essential element of intention. Logically speaking, it is not even necessary for him to prove the defence of accident on balance of probabilities.

An example of the second type of defence is provocation. When an accused person pleads the defence of provocation, he is in actual fact, conceding to the elements of the prosecution’s case, that is, he was responsible for the death of the deceased. He then brings in evidence of circumstances which excuses them. As such, it is logical to require the accused to prove his defence of provocation on balance of probabilities.

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Proving facts especially within knowledge

Section 106 provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Following illustration (b) to section 106, if a person is charged with travelling on a railway without a ticket, the burden of proving that he had a ticket is upon him.

According to Augustine Paul J (as then he was) in PP v Hoo Chee Keong [1997], section 106 is designed to meet certain exceptional cases in which it would be impossible, 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.

In relation to the expression “especially”, Good J in PP v Lim Kwai Thean [1959], it does not mean "exclusively" or "solely" within the knowledge of any person. It falls within the ambit of section 106 if it is an easy matter for the person the proof of which by the prosecution would present the prosecution with inordinate difficulties. The ordinary common sense therefore demands the balance of convenience should be in favour of the prosecution. Consequently, the accused who was asked to produce his identity by a police officer as it was a fact especially within his knowledge and the burden of proof that fact was upon him pursuant to section 106.

In the Federal Court case of PP v Gan Boon Aun [2017], Jeffrey Tan FCJ in illustrating section 106 makes reference to the Mary Ng v PP [1958] and PP v Chee Cheong Hin Constance [2006]. According to him, section 106 is intended to address exceptional circumstances in which it would not be possible or particularly difficult for a party ('the first party') to prove a fact which is only known to the other party ('the second party'), or which can be accessed by the second party with relative ease but cannot be accessed by the first party without considerable difficulty. The court shall bear in mind that the accused is not required to disprove the elements of the offence on the basis that he is in a better position to know about the circumstances.

In Mary Ng v R [1958], the accused was charged for attempting to cheat, the main ingredient of the offence being dishonesty. The Privy Council held that it was not for the appellant to prove that she had not acted deceitfully; rather it was for the prosecution to prove that she had so acted.

In PP v Chee Cheong Hin Constance [2006], it was held that section 108 (which is equipollent to section 106) does not impose any burden on the accused to prove that no Crime was committed and cannot relieve the prosecution from its burden of proof. Section 108 can only be invoked in certain exceptional cases where it would be impossible or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' or 'particularly' within the knowledge of the accused which an accused can prove without difficulty or inconvenience. Before section 108 comes into operation, it must be shown that the facts are 'especially within the knowledge of any person'. This may be clear from the evidence before the court. However if the issue of knowledge of the facts is in dispute, the party wish to invoke section 108 must establish prima facie that the facts were especially within the knowledge of the other party.

In PP v Hoo Chee Keong [1997], the accused was charged for forgery of credits cards. It was held that if the accused did not have knowledge that they were forged or that he had intended to use them as genuine, then it was a matter especially within his knowledge and it was for him to prove such fact under section 106.

In PP v Ang Ah Hoe [2010], it was held that the accused had the burden of proving that he had a firearm’s licence, a fact peculiarly within his knowledge.

Civil Case

In civil cases, the plaintiffs have the burden of proof to prove its case, pursuant to section 101 and its illustration (b).

According to Denning J (as then he was) in Miller v Minister of Pensions [1947], the standard of proof in civil cases is that the plaintiff must prove its case on balance of probabilities. It must carry a reasonable degree of probability. The burden is discharged if the court is persuaded that the fact in issue is ‘more probable than not’. If the probabilities are equal, the burden is not charged.

In the Court of Appeal case Tenaga Nasional Bhd v Perwaja Steel Sdn Bhd [1998], Low Hop Bing J (as he then was) explained the application of the provision of section 101:

“Under section 101(1) of the Evidence Act 1950, whoever desires the court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. In other words, the plaintiff must prove such facts as the plaintiff desires the court to give judgment as to its right to claim against the defendant or the defendant's liability to pay the plaintiff. The burden of proof is on the plaintiff: section 101(2). In order to succeed here, the plaintiff must prove its claim affirmatively.”

Miller v Minister of Pensions [1947] has been applied by the Federal Court in Inas Faiqah Mohd Helmi (A child suing through her father and next friend; Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & Ors [2016].

According to Jeffrey Tan FCJ in Letchumanan Chettiar Alagappan (As Executer to SL Alameloo Achi (Deceased)) & Anor v Secure Planation Sdn Bhd [2017], in the civil proceedings, the plaintiffs have both the burden of proof and initial onus of proof.

It is trite law that unless and until the Plaintiff has discharged her evidential burden of establishing a prima facie case, there is no burden on the Defendant to prove his defence, no matter how weak or unbelievable his defence might have been: Johara Bi binti Abdul Kadir Merican v Lawrence Lam Kwok Fon [1981]

Proving particular facts

Section 103 provides that ‘the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.’

Hence, if the plaintiff sues the defendant for negligence, the plaintiff has the burden to prove the elements of negligence. However if the defendant raises contributory negligence, he will now have the legal burden to prove it on balance of probabilities, as it is a fact that the defendant wants the court to believe in.

An issue that arises revolves around the standard of proof required where there is a criminal allegation, for example, the use of premises for immoral purposes, assault, adultery, cruelty and desertion in matrimonial proceedings and fabrication of evidence.

In Eastern Enterprises v Ong Choo Kim [1969] the defendant was accused of using or permitting the use of premises for illegal or immoral purposes. Winslow J held that the civil standard of proof on a balance of probabilities should apply, but “subject to the qualification that in tilting the balance against the defendant, they must attain a higher degree of probability than is required in an ordinary case of civil negligence though not the very high standard of the criminal law”.

Thus, while the standard of proving a criminal allegation in a civil case remained that of the civil standard of balance of probabilities, the degree of that standard may vary according to the gravity of the allegation.

In Lim Nyun Yin v Gan Kim Biow & Ors [1982] it was recognised that although under Malaysian law adultery is not a criminal offence, but it is certainly a serious matrimonial offence. The court relied on the English authority Blyth v Blyth [1966] and held that the allegation must be proved beyond reasonable doubt.

Lim Nyun Yin v Gan Kim Biow & Ors [1982] was quoted with approval by the court in John Bosco Fernandez v Thmil Selvi Ramasamy & Anor [2012].

In Borhan Hj Daud & Ors v Abd Malek Hussin [2010] the High Court decision, that ‘the respondent had proved on balance of probabilities that he was assaulted in the manner he described, remains unchallenged on appeal.

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Fraud

Prior to the 2015 Federal Court decisions, there have been three approaches as to the standard of proof when allegation of fraud is made in civil case.

The first approach was the civil standard of balance of probabilities, albeit the degree is a higher one. 

In Lau Kee Ko v Paw Ngi Siu [1973] Raja Azlan Shah J (as HRH then was) in the Federal Court observed that:

“It is a wholesome rule of our law that where a plaintiff alleges fraud, he must do more than establish the allegation on the basis of probabilities. While the degree of certainty applicable to a criminal case is not required, there must, in order to succeed, be a very high degree of probability in the allegation.”

In Lee You Sin v Chong Hgo Khoon [1982] Lee Hun Joe CJ applied the English decision Bater v Bater [1950] and held that the civil standard of proof, namely on the balance of probabilities, should apply. However the court imposed the requirement of a higher degree of probability for a serious allegation of fraud. Surprisingly, this case was decided a year later which the second approach was propounded by the Privy Council.

In Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] the Federal Court held that in civil case, the standard of proof for forgery in a civil case is that of a balance of probabilities. Surprisingly the Federal Court did not take the opportunity to clarify the inconsistent authorities that have been put forward to them. In addition, the Federal Court did not clarify the distinction between fraud and forgery, as well as the standard of proof that is required.

The second approach requires a criminal standard of beyond reasonable doubt. The first reported adopted this approach was the Privy Council decision of Saminathan v Pappa [1981].

The Privy Council decision has been applied by the Malaysian court in Chu Choon Moi v Ngan Sew Tin [1986]. It was re-affirmed by the Privy Council in Datuk Jagindar Singh & Ors v Tara Rajaratnam [1983].

The third approach was taken by Federal Court in Ang Hiok Seng v Yim Yut Kiu [1997], where it was held that the standard of proving fraud in civil claim is dependent on the nature of fraud alleged. Mohd Azmi FCJ observed that:

“Where the allegation of fraud in civil proceedings concerns criminal fraud such as conspiracy to defraud, or 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 a balance of probabilities. However, where the allegation is entirely founded on a civil fraud and not on a criminal conduct or offence, the civil burden is applicable.”

Where the fraud alleged in civil proceedings is based on a criminal offence, such as conspiracy to defraud or misappropriate of money or criminal breach of trust, the standard of proof is beyond reasonable doubt. Where the alleged fraud is purely civil, the standard of proof is balance of probabilities.

The case of Ang Hiok Seng v Yim Yut Kiu [1997] was subsequently followed by the Court of Appeal in Ong Ban Chai v Seah Siang Mong [1998] and Lembaga Kemajuan Tanah Persekutuan (FELDA) v Awang Soh bin Mamat [2009].

In Eric Chan Thiam Soon v Sarawak Securities Sdn Bhd [2000] Ian Chin J stated that the distinction between civil fraud and criminal fraud cannot hold. According to his Lordship, it is “an attempt to distinguish the indistinguishable”. “Fraud” has the same meaning whether in criminal or civil cases. Given that fraud is criminal in nature, he held that the standard of proving fraud shall always be beyond a reasonable doubt.

However in Yong Tim v Hoo Kok Chong & Anor [2005] the Federal Court relied on the Privy Council decision of Saminathan v Pappa [1981] and held that where civil fraud is alleged, the standard of proof would be beyond reasonable doubt. It shall be noted that the Federal Court did not consider its earlier decision in Ang Hiok Seng v Yim Yut Kiu [1997].

Federal Court confirmed its decision two years later in the case of Asean Securities Paper Mills Sdn Bhd v CGU Insurance Bhd [2007]. The decision was applied by the court in Lee Way Fay v Lee Beng Ein [2005] and Elba Spa v Fiamma Sdn Bhd [2008].

Surprisingly, in Modern Universal Sdn Bhd v MSIG Insurance (Malaysia) Bhd [2014] Prasad Abraham J (as he then was) referred to the above authorities and held that the applicable law should be that of Ang Hiok Seng v Yim Yut Kiu [1997], which was ignored by the Federal Court in its two latter decisions. In other word, the High Court preferred the “sliding scale” approach.

In Chong Son v Uma Devi V Kandiah [2011] the Court of Appeal held that the trial court was erred in holding the standard of proof for fraud in civil case is balance of probabilities. Forgery is a different kettle of fish from fraud, and therefore a different standard of proof shall apply. 

In Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015], the Federal Court has taken the opportunity to consider the abovementioned authorities, as well as the common law position. It was held that there are only two standard 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. The criminal aspect of the allegation of fraud in civil proceeding is irrelevant to the standard of proof required.

The Federal Court expressly overruled its earlier decisions in the cases of Ang Hiok Seng v Yim Yut Kiu [1997] and Yong Tim v Hoo Kok Chong & Anor [2005].

NB: It shall be noted that the decision only applies to future cases and should not be utilized to set aside or review past decisions involving fraud in civil claim.

The confusion between fraud and forgery was clarified by Jeffrey Tan FCJ in the Federal Court case in Letchumanan Chettiar Alagappan (As Executer to SL Alameloo Achi (Deceased)) & Anor v Secure Planation Sdn Bhd [2017]. It was held that the standard of proof for fraud and forgery in a civil proceeding is balance of probabilities.

 

According to Jeffrey Tan FCJ, O. 18 r. 8(1) read together with O. 18 r. 12(1)(a) of the Rules of Court 2012 requires a specific plead of fraud as well as the particulars of fraud. However, it is not always necessary to plead the word 'fraud' if the facts which make the conduct fraudulent are pleaded. 'Fraud' is a generic term that covers all manner of cheat, deceit and dishonesty. The appellant did not plead the word 'fraud' in the generic sense but pleaded 'fraud' in the specific sense of 'forgery'. Given that 'forgery' was pleaded, it could not be said that 'fraud' was not pleaded at all. 'Forgery' is a specific method of 'fraud' and is 'fraud' in every sense of the word. A complaint of forgery is a complaint of fraud.

Inquest into death

In Teoh Meng Kee v PP [2014], the family of the deceased, Teoh Beng Hock, being dissatisfied with the verdict of the Magistrate sought a review of the verdict before the High Court Judge. The High Court Judge was satisfied that the findings of the Magistrate were correct and he had applied the correct standard of proof, namely “on a sliding scale”, which was derived from the High Court of Australia case of Briginshaw v Briginshaw [1938].

The Briginshaw sliding scale does not mean a scale that slides from proof on a balance of probabilities to proof beyond reasonable doubt on the highest end of the scale. It is a scale rooted on the civil standard of balance of probabilities, but the degree of persuasion needed to convince the court will vary in accordance with the seriousness or gravity of the allegation. The sliding goes to the weight and assessment of the evidence required rather than the standard of proof. The standard of proof remains the same, namely on balance of probabilities.

It is unclear if the standard “on a sliding scale” is still applicable, in light of the decision of Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015], where the court held that there is only two standard of proof, namely beyond reasonable doubt for criminal cases and on the balance of probabilities for civil cases.

Proving facts especially within knowledge

Section 106 provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

A rule which may be pleaded in the context of section 106 is the doctrine of res ipsa loquitur.

This doctrine is a rule of evidence that facilitates the burden of proof by invoking the presumption of negligence.

According to Jaafar bin Shaari v Tan Lip Eng [1997] the basic facts that need to be proved before this presumption can be invoked are:

(a)    The harm would not ordinarily have occurred without negligence;

(b)   The object that caused the harm was under the defendant’s control; and

(c)    There are no other plausible explanations.

Once the presumption is invoked, the legal burden then shifts to the defendant to prove that he was not negligent.

In David Chelliah @ Kovilpillai Chelliah David v Monorial Malaysia Technology Sdn Bhd & Ors [2009] the plaintiff was struck by a safety wheel falling from a monorial train on a test run. In invoking the doctrine of res ipsa loquitur, the court held that the “safety wheel of a monorial train does not, in the ordinary course of things, fall off and hit persons on the ground below.” The plaintiff had, therefore, made out a prima facie case of negligence on the part of the first and second defendants, and the defendants had the legal burden to rebut the presumption on a balance of probabilities.

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