Gopal Sri Ram JCA

(delivering judgment of the court)

1 The respondent before us was charged with an offence of trafficking a prescribed drug contrary to s 39B(1)(a) of the Dangerous Drugs Act 1952s 39B(2) of the Act. He was convicted of that offence by the High Court on 21 July 1994 and sentenced to death. He then appealed to the Court of Appeal. That court by a majority (KC Vohrah JCA dissenting) reversed the High Court and set aside the sentence of death. However, it convicted the appellant of the lesser offence of possession under s 39A(2) of the Act. A sentence of 18 years imprisonment from the date of arrest and ten strokes of whipping was imposed on the respondent. The prosecution being dissatisfied with the decision appealed to this court. Before we address the appeal on its merits, there is a matter that needs to be dealt with.

2 In the course of their separate judgments, the majority (Mokhtar Sidin JCA and Faiza Tamby Chik J) made certain observations with which we are unable to agree. It has to do with the duty of a trial judge, who, at the close of the prosecution case, decides to call upon an accused to make his defence to a charge. According to the majority it is necessary in such a case for the trial court to set out its reasons for deciding to call on an accused to enter upon his defence. It is insufficient for a trial court merely to record the fact that the defence was being called and later in its written judgment to explain why that was done. The decision of this Court in Arulpragasan a/l Sandaraju v Public Prosecutor

3 The point that found favour with the majority is one that has already been traversed by high authority. In Yap Chai Chai & Anor v Public Prosecutor Junaidi bin Abdullah v Public Prosecutor Arulpragasan.

4 In our respectful view, Arulpragasan is authority for the proposition that the test to be applied under the former ss 173(f) and 180 of the CPC is that the prosecution must establish its case beyond a reasonable doubt before an accused could be called upon to enter his defence. It is not authority for the proposition that it is incumbent for a court to make a finding at the close of the prosecution's case that he was satisfied that the prosecution had proved its case beyond reasonable doubt. The failure by the trial court either to make or to record such a finding does not in our judgment occasion a miscarriage of justice. It is sufficient for the judicial arbiter — be he judge or magistrate — to give his reasons in his written grounds of judgment for requiring an accused to make his defence.

5 After the amendments to ss 173(f) and 180 of the CPC, the statutory test has been altered. What is required of a subordinate court and the High Court under the amended sections is to call for the defence when it is satisfied that a prima facie case has been made out at the close of the prosecution case. This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call on the accused to enter upon his or her defence. It involves an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution evidence admits of two or more inferences, one of which is in the accused's favour, then it is the duty of the court to draw the inference that is favourable to the accused. See Tai Chai Keh v Public Prosecutor [1948-49] MLJ Supp 105: Public Prosecutor v Kasmin bin Soeb prima facie case has not been made out, it should acquit the accused. If, on the other hand, the court after conducting a maximum evaluation of the evidence comes to the conclusion that a prima facie case has been made out, it must call for the defence. If the accused then elects to remain silent, the court must proceed to convict him. It is not open to the court to then re-assess the evidence and to determine whether the prosecution had established its case beyond a reasonable doubt. The absence of an