JUDGMENTBY: JEFFREY TAN JC

This is the appellants appeal against the decision of the Butterworth Sessions Court given on 27 October 1995, convicting him of two offences, one under s 8 of the Firearms (Increased Penalties) Act 1971 and the other under s 8(a) of the same said Act, and sentencing him to 11 years imprisonment and eight strokes of the rotan and seven years imprisonment respectively.

The appellant, by his counsel, En Karpal Singh contended, and it was the only issue raised in submissions) that the trial court had seriously misdirected itself at the close of the prosecutions case on the required standard of evaluation of the prosecutions evidence. Coming fairly fresh on the heels of his not inconsiderable feat in Arulpragasan a/l Sandaraju v PP [1997] 1 MLJ 1 , a landmark decision of the Federal Court reaffirming the Khoo Hi Chiang benchmark of a maximum evaluation of the prosecutions evidence at the close of the prosecutions case and stating furthermore that the standard of proof throughout all stages of a trial of an alleged offence is beyond all reasonable doubt, learned counsel submitted that the learned trial judge had not evaluated the prosecutions evidence on the maximum evaluation standard. Pointing to the grounds of judgment where the learned trial judge pronounced the finding of a prima facie case and called for the defence, learned counsel further submitted that the learned trial judge erred in calling for the defence to answer to a prima facie case when the prosecution was required to prove a case beyond all reasonable doubt at the close of its case. Echoing Arulpragasan a/l Sandaraju v PP, that the term prima facie was not found in the Criminal Procedure Code (FMS Cap 6) (the CPC), he further submitted that the use of the term prima facie (and prima facie is not beyond reasonable doubt), evinced most evidently that the defence was called on a less than beyond reasonable doubt case -- at the very least, there was a doubt that the prosecution evidence was not critically examined.

It is exceedingly relevant that Arulpragasan a/l Sandaraju v PP is held and followed in its proper context. In PP v Arulpragasan a/l Sandaraju, the learned presiding judge, who sat as the sole arbiter of fact and law, was not required under the law prevailing then to conduct a minute examination of the prosecutions evidence at the conclusion of the prosecutions case. The learned presiding judge as decider of law was only required to consider whether there was some evidence (not inherently incredible) which if accepted as accurate would establish each essential element in the alleged offence, and a finding that no case against the accused has been made out which if unrebutted would warrant his conviction within the meaning of s 180 of the CPC could only be justified if the evidence (not inherently incredible) in respect of any of the essential elements was lacking (see Haw Tua Tau v PP [1981] 2 MLJ 49 at p 52). The question of the veracity and accuracy of recollection of witnesses was left suspended until after the close of the case for the defence (see Pavone v PP [1984] 1 MLJ 77 at p 79), whereupon the prosecutions evidence would only then be evaluated and examined. That being so, the case that Arulpragasan a/l Sandaraju was ordered to enter his defence upon was unquestionably less than a beyond reasonable doubt case.

It is now in our legal history that the minimal evaluation of the prosecutions evidence until the conclusion of the entire case was discarded altogether with the advent of Khoo Hi Chiang v PP [1994] 1 MLJ 265 , where the Supreme Court, per Edgar Joseph Jr SCJ, pronounced at p 290:

... the duty of the court at the close of the case of the prosecution,

is to undertake, not a minimal evaluation of the evidence tendered by

the prosecution in order to determine whether or not the prosecutions

evidence is inherently incredible -- ie the Haw Tua Tau test -- but

a maximum evaluation of