Ee Lasalle gel Mcge tl one LI SUMMARY TRIAL PROCEDURE IN SUBORDINATE COURTS IN MALAYSIA: SPECIAL EMPHASIS ON S.173 (f) OF CRIMINAL PROCEDURE CODE BY ALWI BIN ABDUL WAHAB INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA MARCH 2001LIBRARY INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA SUMMARY TRIAL PROCEDURE IN SUBORDINATE COURTS IN MALAYSIA: SPECIAL EMPHASIS ON S.173 (fy OF CRIMINAL PROCEDURE CODE BY ALWI BIN ABDUL WAHAB A DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE DEGREE OF MASTER OF COMPARATIVE LAWS AHMAD IBRAHIM KULLIYYAH OF LAWS INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA MARCH 2001ABSTRACT OF THE DISSERTATION The Criminal Procedure Code is one of the basic laws relating to the Criminal Justice System. The law of criminal procedure is actually to oversee the administration of substantive criminal laws, which includes the manner punishments are to be enforced on the offender. On the other hand, the law of criminal procedure ensures that the interest of the offender is protected from unjust prosecution and unjustified punishment. The main objective of the law of criminal procedure is to compliment the substantive criminal law as the substantive criminal law could not function properly on its own, however comprehensive it might be. Thus, the Criminal Procedure Code provides for mechanism for the arrest of suspected criminals, investigation on the arrestee, collection of evidence, preparation of charge, manner of trial, determination of the guilt of the accused person and the imposition of punishment. The administration of justice can only be properly served with steadfast adherence to the strict procedural safeguards under the law. The accused is entitled to be accorded with a fair trial in accordance with the principles of natural justice. This is quite in harmony with the legal maxim that, “the accused person is presumed to be innocent unless proven otherwise”. It is through proper trials that criminal justice can be upheld and to achieve this, it is essential that there should be a proper understanding on the procedures in summary trials. The underlying aim of this study is basically to examine the procedure in summary trial in Subordinate Courts under section 173 of the Criminal Procedure Code (Act 593) with special reference to section 173 (f) of the same. The major principles in summary trial procedure as expounded through the many cases on this subject will be discussed. The study is more of an academic discussion through the interpretation of various provisions on summary trial procedure and the case law. The dissertation begins with introduction in which the introductory remarks pertaining to the Criminal Procedure Code is stated in brief. This chapter also contains the background of study, statement of problem, literature review and the methodology used in the research. Chapter two dwells on the topic of summary trials procedure. Each paragraph under section 173 of the Criminal Procedure Code is critically examined and analysed. Comparisons were made between the old and amended paragraph under the section and from these comparisons, we can see that under the amended paragraph, the procedures become more explicit and clear. Chapter three touches on the topic of prima facie case and it is the most important chapter. The issue on what is the correct standard of proof at the conclusion of the prosecution’s case has been of great controversy for a number of years. It has now finally come to rest with the amendment of section 173 () of the Criminal Procedure Code vide Act A979. The meaning of prima facie case under the amended section and what does it require to make out a case are discussed based on recent and latest + cases decided on the subject.Chapter four delves into the subject of criminal procedures as applied in the Syariah Court pertaining to the standard of proof at the conclusion of the prosecution’s case. The study goes on to consider the burden of proof by the prosecution at the end of trial. The discussion under this chapter is confined to reference under the Syariah Criminal Procedure (Federal Territories) Act 1997 [Act 560] and other similar States’ Enactments are also referred to when necessary. Chapter five is the conclusion chapter, and in this chapter the discussion is on whether the amendment to the Criminal Procedure Code especially section 173(f) on the standard of proof reflects a fair trial in the Malaysian adversarial system of criminal justice. Some findings are made on this issue. Besides, some comments and recommendations are given in view of improving the administration of justice in the Malaysian legal system. Finally, it is hoped that, this study can be used as an additional reference on the subject of summary trials procedure observed by Subordinate Courts, besides the existing materials currently available. It is also hoped that, the findings in this study on the concept of prima facie case after the amendment of section 173(f) can be a useful guideline and assistance to those who are sitting on the bench in arriving at a tight decision. The law is as stated at 28" February, 2001.ad pe MENA ol op G2 gil A UL lly abel LAM cll el LM lO ow Ret ppc ll Galt Boog Al le ede gh olyyill ghar Lb Lapa opal gil ost itil, cast Oph Ob yall Ub OUUY oy pagal dye Ot La oe sal cele fed pi pot I Mia OY eyo gil 2 I JSS ye ALL Obl Yh OSE oe ead JI GAM Of ae tals AN dae iy aL lel Yl Og ay Lo oe pall op Gly ge oll Cele ny GE SEV, Ale tepid C2 Jy pel Ulahy LSE RAS y UAV aor yd ANT ey LUIS, badly BY Qnty Loh de ya Gl BES oteLa Yh gle Lady YY Ma Sela le a gil Agta total eo git oS to I ny DOL ASE Rael Daal Coal Ub pl gas, salad Lal esta} gd eV pelt NYY aL ib AYLI SUA tal descall LSTA Q teal lel YN LaLa Ll cay DL jada lpn ol teat ly 5 SN all op (Cy Hal gd Le Gopal ny ley WL ciel mV Os sty SM cLiay anil Saal GAGLLI Cole Ge Mall on SF pany Mslad UL JOE op call LSA Agta WU ey , Sill a gta Q 52,1, Lally Wye pe yy Mell Rabe y AL lel Yl O sli poll Ayal Ge acts dais Dee oda phaty Nad (arial gall SUIS’ y UBL AVY Gall gj Bo,hh ci Aa ISI ety pli # ee nace UST Obl al ge PIS gt OU gly OT GU ey cn ry BLN pad Q Waally ELOY ct all cay Wall ade LUIS y ILA! el YI Ot why bepoy St aaa 1 ail oF ole Yh July. prima facie caseiate jh sab osye0 ¢ pot hay be pry Cond ce le EIS) OU) Jest NYT SL + (C) 5AM Jota ne ge Boll 5969 WU cob y WS gs gee Spm call dh Latent beg pe JL y tual Gall Ub Mabe 5 ab Gs ye9 glee ge Cond gang. ASLAM ob Wh Ogi sagall 52d S89 UB Clit Spas glass Le Lobe tye ll SUB Q Midald GL Sled pel ge IED eA OU aie SUN W eM bl YO st UP gp stall eg coat patsy sae OLY! ey eal . AM oD] EAM OU So oly VAAV dea Waal AO Eas tes gs A sal bah GUSH Dds Kal be ge Cond ype HL! UI Gy Hse gly ON Ste as IS Cale Ly city aU cs eae Mabel UAL lel mY OIE ow VT Bal SpA SUA pAb 9 a esd ALI Joel oy Bn thal US J bh Yl gles Glo] cor 6 ASU a G cage 5 UT oh al pF ob Oy Sano} B Baad) yey Lis ys taba gh 5 al syle ty jay ghey Le Dole Lents 0, ol orf LS ULE SB) sth Lay SH Yeo) abd YA gels CHT LS a cond Lia 5 Fall oa i ivAPPROVAL PAGE I certify that I have supervised and read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Master of Comparative Laws. Mohd. Baharuddin Harun Supervisor I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Master of Comparative Laws. a Harun Mahmud Hashim Examiner This dissertation was submitted to Ahmad Ibrahim Kulliyyah of Laws and is accepted as partial fulfillment of the requirements for the degree of Master of Comparative Laws. Nt tile Nik Ahmad Kamal Nik Mahmood Dean, Ahmad Ibrahim Kulliyyah of Laws.DECLARATION I hereby declare that this dissertation is the result of my own investigations except where otherwise stated, Other sources are acknowledged by footnotes giving explicit references and bibliography is appended. Name: Alwi Bin Abdul Wahab de —. Date: ... Signature: vi© Copyright by Alwi Bin Abdul Wahab and International Islamic University MalaysiaACKNOWLEDGMENT First and foremost, praises to Allah, the Most Compassionate and Most Merciful for giving me the strength and health to complete this dissertation. I wish to express my deepest thanks and gratitude to my teacher and supervisor, Dr. Mohd. Baharuddin Harun, for his invaluable guidance, assistance and moral support, without which, the completion of this dissertation will never be possible. Indeed, I am indebted beyond expression and repayment. Iam grateful to Public Services Department for awarding me scholarship to carry out this work. I am also indebted to the staff of Public Services Department, Training Division especially to Cik Saraya Arbi, for her unrelentless efforts and services rendered to me throughout my study. My special appreciation is also extended to my beloved parents, my dear wife Nur Jamilah Bt. Abdullah, my daughter Aiman Nabila and my son Aydiel Putra for their spiritual support, patience and encouragement which have contributed immensely towards the completion of this dissertation. Last but not the least, my special thanks are due to my family members, friends and every one who have encouraged and assisted me in one way or another; and for special mention I must thank sister Shamrahayu Abd. Aziz, for her contributions and comments with respect to the chapter on Syariah Criminal Procedure. May Allah s.w.t. reward all of you with the best of rewards. viiiTABLE OF CONTENTS Abstract Abstract (Arabic) Approval Page Declaration Acknowledgment List of Cases List of Statutes List of Abbreviations CHAPTER ONE: INTRODUCTION 1.1. The Criminal Procedure Code 1.2, Background of Study 1.3. Statement of Problem 1.4, Literature Review 1.5, Research Methodology CHAPTER TWO: SUMMARY TRIAL PROCEDURE 2.1, Introduction 2.2, Summary Trial-definition 2.3, Procedures in Summary Trial-Section 173 of CPC i, paragraph (a) . paragraph (b) paragraph (c) paragraph (4) paragraph (e) paragraph (g) paragraph (h) paragraph (i) paragraph (j) paragraph (k) paragraph (1) paragraph (m) - paragraph (n) paragraph (0) 2.4, Conclusion CHAPTER THREE: PRIMA FACIE CASE 3.1. Introduction 3.2. Prima Facie Case-definition + 3.3. Standard of Proof 2 7 3 e 6 73.3.1, Pre-Amendment Period 3.3.1.a, Pre-Haw Tua Tau 3.3.1.b. Post Haw Tua Tau 3.3.2. Post Amendment Period 3.4. Conclusion CHAPTER FOUR: SYARIAH CRIMINAL PROCEDURE 4.1, An Overview 4.2. Prima Facie Case 4,3. Burden of Proof At The End of Trial 4.4. Conclusion CHAPTER FIVE: CONCLUSION AND RECOMMENDATION BIBLIOGRAPHY Be 2B 80 87 100 105 105 107 il 116 118 =LIST OF CASES Abdul J; 1 bin Abdul Satar v. P.P. [1991] 2 M.LJ. 194 bin Abdul Rahman v, P.P. [1984] 1 M.LJ. 80 . [1991] 2 M.LJ. 235 Abdullah Zawawi v. P.P. [1985] 2 M.LJ. 16 ‘Adel Muhammad EJ Dabbah v. Attorney-General for Palestine [1944] A.C. 156 ‘Arulpragasan a/l Sandaraju v. P.P. [1997] 1 A.M.R. 329 ‘Chin Ban Keat v. Rex (1949) M.L.J. 297 Chong Fah Hin v. P.P. (1948-49) M.L.J. Supp. 139 ‘Chu Chee Peng v. P.P. [1973] 2 M.LJ. 35 Dalip Bhagwan Singh v. P.P. [1998] 1 M.LJ. 1 Dato” Mokhtar Hashim & Anor v. P.P. [1983] 2 M.LJ. 232 Fong Hung Siom v. 1950) M.L.J. 293 Fong Siew Poh & 3 Ors v. P.P. (1933) 1 M.C. 155, Harbans Singh Sidhu v. P.P. [1973] 1 M.LJ. 41 Haw Tua Tau v. P.P. [1982] A.C. 139; [1981] 2M.LJ. 49 Hee Nyuk Fook v. P.P, [1988] 2 M.LJ. 360 Heng Chong Huat v.P.P.(Mukah District Criminal Appeal No. 5/82 (Sibu) (unreported)] Heng Kim Khoon y. P.P. [1972] 1 M.L.J. 30 Huang Chin Shiu v. Rex (1952) M.LJ.7 - BP. [1999] 1 C.LJ. 410 1993] 3 M.LJ. 217 1994] 1 M.L.J. 265 Koh Mui Keow Keowy, (1952) ML. 214 Kumaraguru & Ors v. P.P. [1994] 1 M.LJ. 254 Lee Boon Guan (f) v. Regina (1954) 20 M.LJ. 103 Lee Pin Seng v. PP. [1985] 2 C.LJ. 454 Lee Weng Sang v. P.P. [1976] 1 M.L.J. 82 Lee Weng Tuck v. P.P. [1989] 2 M.L.J. 143 Leslie Charles Dowson v. Peter William Mc Grath (1956) 58 W.A.LR. 32 Lian Kian Boon v. P.P. [1991] | MLJ. 51 Lim Kheak Teong v. P.P. [1985] 1 M.LJ. 38 Lim Thuan Hong v. Hermann Jebsen & Co. (1885) 4 Ky. 79 Loh Kam Foo v. P.P. [1997] 2M.LJ. 113 Low Hiong Boon v. P.P. (1948-49) M.L.J. Supp. 135 Le Kol. Yusof bin Abdul Rahman y, Kol. Anuar bin Md, Aj . (1963) M.L.J. 263, v. Minister of Pensions (1947) 2 ALL ER 372 Mohamad Radhi bin Yaakob v. P.P. [1991] 3 M.LJ. 169 Mohamed Din v. P.P. (1985) 2 M.L.J. 251 Mohamed Kassim v. R (1956) M.L.J. 212 Mohamed Yatim bin Abu Bakar y. P.P. (1950) M.L.J. 57 Mohammad bin Hassan y, P,P. [1998] 5 M.L.J. 65, Munusamy v. P.P. [1987] 1 M.LJ. 492 + Nagappan a/l Kuppusamy y. P.P. [1988] 1 C.LJ. 283 [1997] 1 M.LJ. 562 xiNg Theng Shuang v, P.P. [1995] 2 S.L.R. 31 Ong Kiang Kek v. 1970] 2 M.LJ. 283 PP. [1973] 1 M.LJ. 81 1985] 1 M.L.J. 93 ‘Abdullah bin Ismail [1983] 1 M.L.J. 417 y. Annuar bin 1948) M.L.J. 38 y. Au Seh Chun [1998] 6 M.L.J. 179 v. Chin Yoke (1940) M.L.J. 47 v. Dato? Seri Anwar Ibrahim (No.3) [1999] 2 M.LJ. 1 v. Fong Ah Tong And Cheong Chi Shen (1940) M.L.J. 240 v. Heng You Nang (1949) M.LJ. 285 v. Hettiarachigae L.S. Perera [1977] 1 M.LJ. 12 Jafa bin Daud [1981] 1 M. , James Tan (1983] 2 M.L.J. 173 . ¥. Karumah [1980] 2 M.LJ. 102 . Krishna Rao Gurumurthi & Ors. [2000] 1 C.L.J. 446 . Lee Ah Ha [1989] 1 M.L.J. 120 . Lee Yee Heng (1938) M.LJ. 117 , Lim Teong Seng and Others (1946) M.L.J. 108 , Lim Yoo Hoek [1984] 1 M.L.J. 309 -. Low Yong Ping (1961) M.L.J. 306 . Man bin Abas (1935) 1 M.C. 160 , Margarita B. Cruz [1988] 1 M.L.J. 539 . Mat Radi [1982] 1 M.L.J. 221 vy. Mohamed Said [1984] 1 M.L.J. 50 y. Mohan Singh Lachman Singh [1999] 4 C.L.J. 620 vy. Munusamy [1980] 2 M.L.J. 133 vy. Ng Mong Kia & 4 Ors 1993] 2 A.M.R. 29: 1278 - Ong Cheng Heong [1998] CLI JT(); [1998] 4 C.L.J. 209 R. Balasubramaniam (1948) M.LJ. 119 . Saimin & Others [1971] 2 M.L.J. 16 . Salamah bt. abdullah (1947) M.L.J. 178 . Semban [1976] 1 M.L.J. 91 , Sukumaran Sundram [1999] 4 C.L.J. 242 . Tan Kim Kang & Ors (1962) M.LJ. 388 vy. Tau Kim San [1980] 2 M.L.J. 99 vy. Yuvaraj [1969] 2 M.LJ. 89 v. Zulkefle Abu Bakar & Anor [2000] 2 C.L.J. 359 Pavon y. P.P, [1984] 1 M.LJ. 77 Pendakwa Raya Iwn Loo Tee Maw [1992] 2 M.LJ. 212 ‘Pendakwa Raya v. Cheah Beng Poh & Ors [1984] 2 M. Pendakwa Syarie Kelantan lwn Mat Rahim dan Nik 1994, 195] Pendakwa Syarie Iwn Mohamed bin Sabu & Anor (JH, JId. XI, Bhg Il, 1997, 61] Pendakwa Syarie Pahang Iwn V.V. Aboo A/L Ahammu [JH, Jid. VII, Bhg. II, 1991, 235] Petrus ak. Belaka v, P.P, [1998] 3 M.L.J. 894 .Por Choo Aik v. Pendakwa Raya [1993] 2 M.LJ. 131Ry, Carr Briant (1943) K.B. 9607 Ragunathan v. Pendakwa Raya [1982] 1 M.L.J. 139 Ramanathan s/o Chelliah v. P.P. [1996] 2 M.L.J. 538 Anor (1932) M.L.J. 74 P. (1963) MLJ. 22 Singah Mohamed Hussin v. P.P. [1973] 2 M.L.J. 109 Soo Sing & 2 Others v. P.P. (1951) M.LJ. 143 Subramaniam & Anor 1976] 1 M.LJ. 76 Subramaniam Arumugam vy. [2000] 2 C.L.J.1 Tan Ah Ting v. P.P. [1974] 2 M.LJ. 37 Tan Boon Kean v, P.P. [1995] 4 C.LJ. 456 Tan Foo Su v. P. 1967] 2 M.L.J. 19 Tengku Abdul Aziz v. P.P. (1951) M.LJ. 185 Teh Lee Tong v. Rex (1956) M.L.J. 194 Teoh Hoe Chye v. P.P. [1987] 1 M.LJ. 229 Ti Chuee Hiang v. P.P. [1995] 2 M.L.J. 433 Wong Yiap Long (1955) M.LJ. 132 ‘Wong Ah Mee v. P.P. [1970] 1 M.L.J. 98 Wong Swee Chin v. P.P. [1981] 1 M.L.J. 213 Woolmington v. The Director of Public Prosecutor (1935) A.C. 462 Yaakub bin Ahmad v, P.P. [1975] 2 M.L.J. 223 Yap Chai Chai & Anor y. P.P. [1973] 1 M.LJ. 219 Yeo Tse Soon y. P.P. [1995] 3 M.LJ. 225 Zahari bin Yeop Baai y. P.P. [1980] 1 M.L.J. 160LIST OF STATUTES Civil Law Act 1956 (Revised 1972) Criminal Procedure Code (F.M.S. Cap. 6) Criminal Procedure Code (Act 593) Evidence Act 1950 (Act 56) Penal Code (F.M.S. Cap. 45) Syariah Criminal Procedure Enactment, 1983 (Kelantan) Syariah Criminal Procedure Code Enactment, 1991 (Selangor) Syariah Criminal Procedure (Federal Territories) Act, 1997 [Act 560]LIST OF ABBREVIATIONS AC. Appeal Cases Ag. Acting AER. All England Law Reports AMR. All Malaya Reporter Anor Another © Copyright Cap. Chapter cf Compare Ci. Chief Justice CLI. Current Law Journal CP.C. Criminal Procedure Code DPP. Deputy Public Prosecutor eg. (exempligrana) For example FCJ. Federal Court Judge FMS. Federated Malay States Ibid (ibidem) As cited above Id. (idem) As cited above at different page ie. That is J Judge Jc Judicial Commissioner LCA. Judge of the Court of Appeal JH Jurnal Hukum IMCL. Journal of Malaysian and Comparative Law Jr Junior IT Judgment Today KB. King’s Bench Ky. Kyshe’s Report LJ. Lord Justice LP. Lord President MC. Malayan Cases MLJ. Malayan Law Journal ne Footnote Ors. Others P. Page PP. Pages P.C. Privy Council PP. Public Prosecutor R Rex Reg. Regina S.CJ. Supreme Court Judge SLR. Singapore Law Reports e Section ss. Sections Supp. Supplement Supra As cited earlier v. Versus xv(videlicet): namely Volume West Australia Law Reports - With effect fromCHAPTER ONE INTRODUCTION 1.1. The Criminal Procedure Code Criminal Procedure in Malaysia is governed by one single Code namely the Criminal Procedure Code (hereinafter referred to as “CPC”). Prior to this, there were at least four different Codes, such as, Code for the Federated Malay States, Code of Strait Settlements and one each for Sabah and Sarawak. Finally, by the Criminal Procedure Code (Amendment and Extension) Act 1976 (Act A 324), all the above Codes were repealed and replaced by the Criminal Procedure Code (FMS Cap. 6), which has been used throughout Malaysia effective from 10th. of January 1976. CPC (Cap. 6) was revised by the Commissioner of the Law Revision, Malaysia, under the Authority of the Revision of Laws Act 1968 and it was gazetted as Criminal Procedure Code (revised 1999) [Act 593], which is currently being used.' The CPC does not lay down one common procedure for all offences because the Code itself specifies that it provides for offences under the Penal Code only. As for offences in statutes other than the Penal Code, the procedure in the CPC may also apply except that if the provisions in the statutes provide for special mode of trial for such offences, then the procedure’in the statutes must be applied. For that matter, the principle generalia specialibus non derogant therefore applies i.e., specific provision in a specific statute overrides a general provision in a general statute. .__LEot the history ofthe Criminal Procedure Code, see Hamid Ibrahim, Hamid’s Criminal Procedure, 2" Edition, 1998 at pp. 5-6.‘Apart from the reference to the local statutes, section 5 of the CPC expressly allows references to be made to English Law in the absence of special provision in the Code. The application of English Law in Malaysia is also based on the provisions of section 3 and section 5 of the Civil Law Act 1956 wherever there is a lacuna, provided no conflict arises thereon against the local condition and circumstances of the states of Malaysia. The administration of justice is simply based on procedures upon which cases are disposed in a manner just and fair to both parties appearing before the court. Summary trial procedure in criminal cases is regulated under Chapter XIX of the CPC, with section 173 being the main provision. It lays down the procedure for criminal trial in the Subordinate Courts right from the commencement of trial i.e., when the charge is read to the accused until the end of trial, when the court makes its finding, It is very important that the summary trial procedures in the CPC be complied with, as failure to comply, would necessarily result in the proceeding being considered a mistrial. The accused would be prejudiced and deprived of the right of fair hearing. To borrow the words of Blackstonian, “It is better that ten guilty persons escape than that one innocent suffer.” Correspondingly, according to Thomas Fuller: “The judge is condemned when the criminal is absolved.” This subject of Summary Trial will cover s, 173(a) to s. 173(0) of the CPC. Special emphasis will be given to section 173(£) of the same on the standard of proof at the + end of the prosecution case. The: wordings of the present section 173(f) had beenamended by Criminal Procedure Code (Amendment) Act 1997 vide Act A979, to expressly include the words “prima facie case”. 1.2, BACKGROUND OF STUDY Looking back to the past history, an analysis of the cases shows that, in deciding what standard of proof is required by the prosecution at the conclusion of the case for the prosecution, the court generally had taken two approaches; either that, it places upon the prosecution to establish prima facie case i.e., a case which if unrebutted would warrant a conviction or it places on the prosecution the duty to establish its case beyond reasonable doubt. Although the Privy Council case of Haw Tua Tau v. Public Prosecutor was inclined to support the former line of authority on the standard of proof at the conclusion of the prosecution’s case, it had actually changed the meaning and concept of prima facie often used in practice by the courts. Despite its acceptance since 1982, Haw Tua Tau‘ came under attack in Malaysia in late 1993, when the Supreme Court in Khoo Hi Chiang vy. Public Prosecutor,’ i unanimous decision declared that Haw Tua Tau was wrong and should no longer be considered as a good precedent in Malaysia. In that case, it was held that the duty of the court at the end of the prosecution’s case is to undertake, not a minimal 312982] A.c. 139; [1981] 2M.LJ. 49 This case is discussed in chapter three, , ‘Supra n, 2 $ [1994] 1 M.L.J. 265evaluation of the evidence tendered by the prosecution in order to determine whether or not it is inherently incredible but a maximum evaluation of such evidence, to determine whether or not the prosecution had established the charge against the accused beyond all reasonable doubt. Later after that, another celebrated Federal Court’s decision in Tan Boon Kean v. Public Prosecutor,® where an attempt was made to resurrect the effect of Haw Tua Tau? Finally, came yet another Federal Court’s decision in Arulpragasan a/I Sandaraju v. Public Prosecutor,® reaffirming Khoo Hi Chiang’s? case holding that the standard of proof required on the prosecution at all stages of the hearing is one of beyond reasonable doubt. These inconsistent views of Federal Court and its forerunner, i.e., Supreme Court has come to an end with the amendment of the CPC vide Act A979. The effect of this amendment is that, it overrules the decision of the Federal Court in Arulpragasan’s case," The amendment to section 173(f),was made primarily with the object of setting the correct standard of proof required upon the prosecution before the court decided to call the accused to enter a defence. This section is given in two subsections; $11995] 4 CL. 456 Supra n. 2 *[1997] 1 AMR. 329 ° Supra n. 5 * Supra n. 8Subsection (i) provides when the case for the prosecution is concluded, the court shall consider whether the prosecution has made out a prima facie case against the acoused, Subsection (ii) provides that when 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. 1,3. STATEMENT OF THE PROBLEM By this amendment, has this issue on the standard of proof at the conclusion of prosecution’s case been well settled? Or does the amendment bring back the effect of Haw Tua Tau by using the expression “prima facie case"? No doubt the Parliament has made it crystal clear of what the prosecution is supposed to make out by using the phrase “prima facie case” in the section, nevertheless, there still exist a lingering doubt among those who practice the law as to what is “prima facie case”. ‘What then constitutes a “prima facie case” in the light of the amendment Act A979? What is required upon the prosecution to establish a prima facie case? What is the role of a judge or magistrate at this stage as a decider of law and fact in deciding whether the prosecution has made out a prima facie case? When the prosecution has made out a prima facie case, the court would then call the accused to enter his defence. The accused may choose to remain silent and call no evidence. Does it follow that the court can convict in such situation after its findingthat the accused had a case to answer? What is the position in such situation after the amendment? Hence, the purpose of this study is to uncover all these hypothetical issues brought up by the amendment of the CPC in particular at the conclusion of the prosecution's case. At the end of the day, the writer would like to give his evaluation and comments as to whether this amendment reflects a fair trial in the Malaysian adversarial system of criminal justice. For the purpose of completeness, the writer would also like to delve into the position under Islamic law, on the standard of proof required upon the prosecution. Through this study, comparison would be made under both laws on the subject and how they could be reconciled, if any. 1.4, LITERATURE REVIEW The most popular textbook sought as reference in the field of criminal procedure in Malaysia, is the one written by Professor Dato” Mimi Kamariah Majid, The latest edition of her book entitled “Criminal Procedure in Malaysia” was published after the amendment of the CPC (Act 979) and has incorporated some recent cases on this subject. In her book, under this topic, she discusses, on the standard of proof required on the Prosecution at the conclusion of its case, during the pre Haw Tua Tau,'' post Haw * Supra n. 2.Tua Tau until the standard was shifted into another standard of proof in Anulpragasan.'? Inadvertently, the definition, concept and scope of prima facie after the amendment were not spelt out. Another published text on the subject is “Mallal’s Criminal Procedure (5" Edition)”. This edition was published in 1998 and it provides a reference for practical guide to the criminal procedure and practice in Malaysian Courts. Similarly, this book does not explain on the concept of prima facie case after the amendment of CPC. Other references on the subject were obtained from journals, articles and magazines. It is not possible to give a complete list of references but suffice to say that they dealt with specific areas of summary trial. Unfortunately, none of these articles had discussed on prima facie case after the amendment despite the importance of the subject. 1.5. RESEARCH METHODOLOGY This study is basically based on doctrinal research viz. virtual library based research. As far as library work is concerned, this was done largely on the research of the decided cases on the law pertaining to the subject of the dissertation, The cases were critically analysed and examined. At the end of the day, some observations and comments were made on the cases. Besides the cases, relevant information from written literatures relating to the topic were also collected. This includes textbooks, articles, journals, magazines, periodical et cetera, However, references were more to cases as there were hardly books or articles written on the topic in issue. ” Supra n. 8