Hashim Yeop Sani SCJ:

Two questions were posed to us under s. 66(1) of the Courts of Judicature Act 1964 as follows:

(a) Whether on a charge under s. 420 of the Penal Code where an accused person is called upon to enter his defence there is in law a burden cast upon him to prove any of the facts upon which his defence is based.

(b) If the answer to question (a) is in the affirmative then, to obtain an acquittal whether in law it is incumbent upon an accused person to prove the facts upon which he relies on a balance of probabilities, or is it sufficient to raise a reasonable doubt.

The applicant was originally charged in the Kajang Magistrate's Court for an offence under s. 420 of the Penal Code. He claimed trial and the matter proceeded for several days. In the event, at the end of the prosecution case the learned Magistrate ruled that a prima facie case had been established against the applicant on the amended charge and called upon the applicant to enter his defence.

Upon hearing the evidence for the defence, the learned Magistrate held that a reasonable doubt had been created and on 17 July 1984 she accordingly acquitted and discharged the applicant. On 25 July 1984 the Public Prosecutor filed in a notice of appeal against the order of acquittal.

During the course of the hearing of the appeal, the learned Judge stated that he was bound by the decision of the Privy Council in Jayasena v. The Queen [1970] 1 All ER 219 and that if an accused person wished the Court to believe in the existence of a particular fact then the burden lies on him to prove it.

The learned Judge thereupon allowed the appeal and ordered a retrial of the applicant before another Magistrate. Thus the reference.

The evidence for the prosecution was based on the testimonies of three principal witnesses, PW1 and PW2 (the complainants) and PW3. In their evidence they stated that they were businessmen and were friends and that PW1 and PW3 were nephew and uncle respectively. PW3 also admitted in his evidence that he had previous experience in land matters.

Briefly the prosecution story was that the applicant and another person with the name of Zuri (still at large) came to Pontian and informed PW1 that there was a piece of land for sale for RM120,000. PW1 was also told that if he wanted to purchase the land he should make a deposit of 10% of the purchase price. A total sum of RM11,000 was paid to the said Zuri and RM900 to the accused. Subsequently PW1 came to Kajang to look for the accused with PW2 and another friend. PW1 then said that on seeing them the accused fled in his car. They gave chase and the accused drove straight into the Kajang police station where a report was later lodged by both parties.

The applicant gave evidence on oath and said that there was no land transaction at all as alleged by the prosecution. The money transaction was not for land but for the purchase of counterfeit money. The applicant said he merely witnessed the handing of the money to the said Zuri for the purchase of the counterfeit money. In his evidence the applicant said that what was agreed was that the exchange rate would be RM11,000 for RM35,000 forged notes. A cautioned statement of the applicant was also tendered in evidence.

In her grounds of decision the learned Magistrate stated that at the close of the defence she found that the defence had cast a reasonable doubt on the prosecution case. She also made certain findings that:

(a) it would be difficult to believe there has been any land transaction as alleged by the complainants because there was a complete absence of evidence of any discussion on the nature of the land;

(b) there was surprisingly no evidence of any request for particulars of the land before payments of the deposit;

(c) PW2 and PW3 being experienced businessmen while PW3 had been a land broker could not have overlooked to ask for particulars of the land before making any commitment on the deal.

Apart from those grounds it would appear that