JUDGMENT

Ravinthran Paramaguru J:

Introduction

[1] The accused is a Corporal attached to the Special Branch of the Royal Malaysian Police Force. He was based in Lahad Datu. The charge against him is that he omitted to disclose information pertaining to a terrorist act. The trial against the accused proceeded under the Security Offences (Special Measures) Act 2012 Act 747 (the SOSMA). Briefly stated, the case for the prosecution was that the accused possessed information pertaining to the armed intrusion by a group of foreigners from the Philippines into Kampung Tanduo which is located in Sabah's Lahad Datu District in February of 2013. The accused is alleged to have been in possession of this information as early as January of 2013. He is also alleged to have possessed information about plans by foreign intruders to send reinforcements to Kampung Tanduo. However, he withheld all these crucial information from his superiors. The superior officers of the accused testified that the accused was legally bound to give them the said information and that he omitted to do so. They also testified that a group of armed intruders landed in Kampung Tanduo on 12 February 2013 and in the ensuing clash with Malaysia security forces, two Malaysian police personnel died.

The Charge

[2] The charge against the accused is as follows:

Bahawa kamu, di antara Januari 2013 dan 3 Mac 2013, di Pejabat Ketua Cawangan Khas Daerah, Ibu Pejabat Polis Daerah Lahad Datu, dalam Daerah Lahad Datu, dalam Negeri Sabah, yang mempunyai sebab untuk mempercayai bahawa suatu perbuatan keganasan iaitu kesalahan yang boleh dihukum di bawah s 130C Kanun Keseksaan akan dilakukan, meninggalkan dengan sengaja daripada memberi apa-apa maklumat berkenaan dengan kesalahan itu, yang kamu terikat di sisi undang-undang untuk memberi, dan oleh itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah s 130M Kanun yang sama.

The English translation supplied by the prosecution is as follows:

That you, between January 2013 and 3 March 2013,at the office of the Head of the District Special Branch, Lahad Datu District Police Headquarters, in the District of Lahad Datu, in the State of Sabah, having reason to believe that an offence punishable under s 130C of the Penal Code, to wit, a terrorist act will be committed, intentionally omits to give any information respecting that offence, which you are legally bound to give, and thereby you have committed an offence punishable under s 130M of the same Code.

Test Of Prima Facie Case

[3] I shall first direct myself on the test of prima facie case. The test of a prima facie case is whether the prosecution had adduced credible evidence to prove each ingredient of the offence which if unrebutted or unexplained would warrant a conviction (s 180 of the Criminal Procedure Code). In the case of ; [2005] 6 MLJ 393; [2006] 1 CLJ 457; [2005] 6 AMR 203, the test of a prima facie case is stated as follows:

"... ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me? If the answer to that question is "Yes", then a prima facie case has been made out and the defence should be called. If the answer is "No" then, a prima facie case has not been made out and the accused should be acquitted."

[4] In the case of ; [2005] 2 MLJ 301; [2005] 1 CLJ 85; [2005] 1 AMR 321 which was cited by the learned DPP, the Federal Court cited Mozley and Whiteley's Law Dictionary 11th edn which defined 'prima facie case' as follows:

A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side.

[5] The Federal Court then explained the duty of the Court at the end of the case of the prosecution as follows:

The