Peh Swee Chin FCJ:

[1] This criminal reference brought under the old s 66 (since repealed) of the Courts of Judicature Act 1964 deals with an alleged offence of cheating against the applicant which was alleged to have taken place on 7 May 1983. The applicant was originally charged in the Sessions Court, Kuala Lumpur and was acquitted and discharged on 31 January 1985 at the close of prosecution case without his defence being called. The Public Prosecutor then appealed against such an order of acquittal to the High Court which set aside the order of acquittal and ordered a retrial.

[2] The retrial before a different Sessions Court judge took place and at the close of the case for the prosecution, the applicant was again acquitted and discharged for the second time without his defence being called. For the second time the Public Prosecutor again appealed and again the appeal was allowed, the order of acquittal was again set aside, ordering further that the applicant be called for his defence.

[3] This time, the applicant was dissatisfied with the decision of the High Court and he applied for leave to refer to the Supreme Court certain questions of law. The Supreme Court, on 4 February 1991, allowed the application in respect of the following questions:

QUESTION 1

In an appeal against acquittal at the close of the case of the Prosecution, can an Appellate Judge refuse to apply with or without assigning any reason, the latest decision of the Supreme Court on a point of law and adopt an earlier decision of the Federal Court?

QUESTION 2

Whether the Appellate Court in hearing an appeal against an acquittal at the close of Prosecution Case was right in law in holding that the Learned President of the Sessions Court was wrong in assessing and weighing the reliability, credibility and veracity of the prosecution witnesses when the Supreme Court held in Munusamy v. PP, [1987] 1 MLJ 492; [1987] CLJ (Rep) 221 that:

in considering the question of law whether there is some evidence (not inherently incredible) to prove one or more of the essential ingredients of the offence the judge or magistrate must by necessity evaluate and weigh all the evidence. If there is no evidence at all to prove one or more of the essential ingredients of the offence the accused must be acquitted without calling for his defence. The requirement of s 180 or s 173(f) of the Criminal Procedure Code cannot be properly complied with unless the judge or magistrate considers and evaluates all the evidence adduced by the prosecution as tested in cross-examination

Which not only allows a Court to do so but also imposes a duty to do so.

QUESTION 3

In an Appeal against acquittal, where the Trial Judge found corroboration was required on an essential ingredient of the charge, can an Appellate Judge reverse the order of acquittal without dealing with the reason given by the Trial Judge on the need of such corroboration?

[4] The ascertaining of answers to at least two of the above questions would at least require a discussion as to what should have been the burden of proof applicable at the end of the prosecution case against the applicant at that time in the second trial before the Sessions Court; should it be a proof beyond a reasonable doubt or a mere proof of a prima facie case? The impact of the recent amendment to the Criminal Procedure Code to restore the test of prima facie case at the close of prosecution case would also have to be discussed. We will revert to these later and more elaborately.

[5] The Sessions Court at the second trial had acquitted and discharged the applicant at the close of prosecution case by employing the test of prima facie case as expressly adopted in Munusamy v. PP, [1987] 1 MLJ 492; [1987] CLJ (Rep) 221. The Session Court further cited for support the dictum of Gordon Smith JA in PP v. Chin Yoke; [1940] MLJ 47, which it said was cited and approved by Supreme Court itself in the Munusamy case. The said dictum is as follows:

... that the Magistrate