Shaik Daud Ismail JCA:

The appellant, an Inspector of police was originally charged in the Sessions Court at Kota Bharu for accepting gratification of RM2,000 from one Tan Hung Kiang as an inducement for telling the said Tan Hung Kiang to leave Kelantan so that the police would not arrest him, an offence punishable under s. 4(a) Prevention of Corruption Act 1961 . The offence was alleged to have been committed at about 5.45pm on 29 February 1992 at Restoran Muhibbah No. 445 Jalan Dato' Nik Mustapha, Tanah Merah, Kelantan. At the end of the trial the appellant was convicted as charged and he was sentenced to four months' imprisonment and fined RM4,000 or in default imprisonment for another four months. In addition, the court imposed a penalty of RM2,000 under s. 13 of the same Act .

Not being satisfied with the decision, the appellant appealed to the High Court, which appeal was dismissed and the learned judge confirmed the conviction and the sentence imposed by the Sessions Court. He now appeals to this court.

His petition of appeal contains eight various grounds but at the outset of the appeal, learned counsel Mr. Karpal Singh informed the court that he was pursuing only one ground that is the standard of proof. Learned counsel pointed out that the record of appeal showed that, at the close of the prosecution case in the Sessions Court, the learned Sessions Court Judge applied the prima facie standard of proof, before he called upon the appellant to enter his defence. It was his contention that at the time of the trial of this case in the Sessions Court, the proper standard of proof to be applied at the close of the prosecution's case was the beyond reasonable doubt standard. Therefore, he added, that the learned Sessions Judge erred in law in not holding that the prosecution was bound by law to prove its case beyond reasonable doubt at the close of its case. In his grounds of judgment too, the learned Sessions Judge said that at the close of the prosecution's case, he was satisfied that the prosecution had proved a prima facie case and proceeded to call upon the appellant to enter on his defence.

The learned Deputy Public Prosecutor while conceding that the learned Sessions Judge did not apply the beyond reasonable doubt standard, further contended that, whatever be the standard of proof applied, whether prima facie or beyond reasonable doubt standard, the Sessions Judge would have arrived at the same decision.

With respect, we are unable to agree with this submission. The issue in this appeal is not as contended by the Learned Deputy Public Prosecutor.

The issue is whether the learned Sessions Judge applied the right and proper standard of proof at the close of the case for the prosecution.

The issue of whether the prosecution at the close of its case is required to prove a prima facie case or to prove a beyond a reasonable doubt case has been of great controversy for a number of years. As stated in Ismail V. Public Prosecutor [1963] "without embarking into the history on this issue all over again" it has now finally come to rest with the decision in Arulpragasan Sandaraju v. Public Prosecutor [1996] 4 CLJ 597 where it was held that the standard of proof at the close of the case for the prosecution is beyond reasonable doubt. Therefore, in the light of this decision, to all intents and purposes, the standard of proof to be applied in all cases whether before or after the Arulpragasan decision, must necessarily be beyond reasonable doubt.

It would not be amiss to add here that since the Arulpragasan decision, s. 180 of the Criminal Procedure Code has been amended to provide for a prima facie standard of proof at the close of the case for the prosecution. This amendment unfortunately for this case, took effect only after 31 January 1997 and there is nothing in the amendment to give it retrospective effect.

Therefore, in the instant appeal, we were unanimously in agreement with the submission of Mr. Karpal Sin