David Wong Dak Wah JC:

[1] The respondents were acquitted and discharged at the end of the prosecution case by the learned magistrate on 18 April 2005. The charge preferred against the respondents was as follows:

That you, jointly, with one other still at large, on the 6th day of September 1998, at about 9.00 pm at Lorong 10, Kampong Semariang Batu, Petra Jaya, Kuching, in the state of Sarawak, used criminal force on one Kasmah bt Alan (F) aged 15 years, knowing it to be likely that you would thereby outrage her modesty, and you thereby committed an offence punishable under section 354 of the Penal Code.

[2] The prosecution appealed against the learned magistrate's decision and their grounds of appeal are as follows:

1. The learned magistrate erred in law when she ordered the prosecution to close their case without allowing the prosecution to adduce further evidence.

2. The learned magistrate erred in law and in fact in her finding that the prosecution has failed to prove a prima facie case against the respondents where she decided that the only evidence against the accused was that of the complainant herself and she found that was not sufficiently corroborated to implicate any of the accused.

3. The learned magistrate was wrong for not appreciating the positive evidence about the identity of the respondents by the complainant despite the fact there was nothing inherently improbable about the complainant's story, and her evidence remained unshaken by cross examination and supported by identification parade.

4. The learned magistrate had erred in law and in fact when she came to the conclusion that PW8's evidence regarding the conduct of the Identification Parade is vital and thus rendered the identification of the accused doubtful.

5. The learned magistrate's decision in acquitting and discharging the respondents is most unsatisfactory and cannot be supported having regard to the weight of the evidence adduced by the prosecution.

[3] At the outset of the appeal, learned DPP withdrew ground 1.

[4] As for ground 5, learned counsel for the 1st respondent submits that it is bad in law as it does not contain any specifics on the judgment appealed against.

[5] He relies on the case ofOoi Teik Chinn v. PP [1971] 1 MLJ 51 where the learned judge said:

Under s. 259(2) of the Criminal Procedure Code, it is for the appellant to show that the conviction is unreasonable or cannot be supported having regard to the evidence. In Goh Ah Too v. Regina [1956] MLJ 139 the court drew attention to the decision of the Privy Council in Aladesuru v. R [1956] AC 49 where it was laid down that in order to succeed an appellant must show, in the words of the statute, that the verdict is unreasonable or cannot be supported having regard to the evidence. It was not sufficient ground of appeal to allege that the verdict is against the weight of evidence' and that the phrase was inaccurate and could not properly be substituted for the words of the statute

[6] The rationale of the just cited case is a sound one and as such I hold that ground 5 is bad and hereby strike out the same.

[7] Grounds 2 to 4 basically refer to the learned magistrate's finding of no prima facie case being made out. Her reasons, namely the identity of the respondents by the victim being suspect, the inadequacy of the identification parade, and her finding of PW8's evidence, in the opinion of the learned DPP were not supported by the evidences.

[8] At this juncture I should state the law of what does 'prima facie case' mean. The latest judicial pronouncement can be found in the case of PP v. Mohd. Radzi bin Abu Bakar [2005] 244 MLJ 1 where the Federal Court through Gopal Sri Ram said:

For the guidance of the courts below, we summarize as follows the steps that should be taken by a trial court at the close of the prosecution's case:

(i) the close of the prosecution's case, subject the evidence led by the prosecution in its totality to a maximum evaluation. Carefully scrutinize th