Monday, April 14, 2008

FIR-[FIRST INFORMATION REPORT]

FIRST INFORMATION REPORT[FIR]

First Information Report or the First Information Report is information which is given first in the point of time. Obviously, there cannot be more than one FIR in one case; however there may be many the victims in one case. In a FIR, there is two main conditions to be satisfied before an information could be treated as FIR, which is it must be an information and secondly it must relate to a cognizable offence on the face of it and not merely in the light of the subsequent events. Besides that, a FIR, in other words must be in the nature of a complaint or accusation with the object of getting the law in motion, where it is more to an earliest report made to the police officer with a view to his taking action in the matter or an information given by an informant on which the investigation is commenced. The FIR will be treated by any information given or phone in respect of a cognizable offence to a police officer in charge of a police station. Apart from that, we also can quote some specific sections under the Evidence Act about FIR, where it is stated in Section 74 that, documents which can be entertained as a public documents are include of any documents forming the acts or records of the acts of sovereign authority, official bodies, public officers, legislative, judicial, executive and public records which kept in Malaysia of private documents.

We also can refer to the Criminal Procedure Code under Section 107 about the information of offence where in subsection (1) stated that ‘every information relating to the commission of an offence if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant’ and in subsection (2) stated that ‘every such information shall be entered in a book to be kept by the officer, who shall append to such entry the date and hour on which that information was given, and whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it’. Referring to Section 108A of the same act, it also mentions that the information reduced to writing shall be admitted as evidence of the contents of the original and of the time, place and manner in which the information was so recorded. The FIR can be lodged at any police station, where the information should be to the Officer in Charge of the police station, or to the Superior Police Officers, or even to the Chief Minister of the State. Besides that, the person who can lodge FIR is not necessary by an eyewitness; it also can be lodged by the accused, or by the Station House Officer or even by the General Power Of Attorney.

(a) Whether such FIR is a condition precedent to the commencement of criminal investigations?

The phrase ‘first information report’ refers to the initial information relating to the commission of an offence given to the police under Section 107 of the Criminal Procedure Code. The first information report is usually made very early after the occurrence offence and forms the basis of the case. There is no requirement that the initial information be given by a person who has personal knowledge of the incident. The first information report is also the basis upon which the police will commence their investigation. In the course of such investigation, the police will be empowered to require the attendance of witnesses, examine witnesses, record statements under caution, to produce the accused before a magistrate to have his confession recorded by the magistrate, conduct searches, apply for a remand order, and require a bond for the appearance of the complainant and witness.

The first information report is not however a condition precedent to the starting of criminal investigations. Section 107 also requires every information relating to the commission of an offence, if given orally to an officer in charge of a police st6ation, to be reduced into writing by the officer or under his direction and to be read over to the informant. The police will normally record the information first and then proceed to investigate the matter in order to avoid any confusion later. However if the police officer comes to know of an offence while on beat or while the offence is being committed, he should not waste time in recording the information and thereby give the accused a chance to dispose of the incriminating articles or get away with the fruits of his crime. Indeed the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation, and neither is it a condition precedent to the setting in motion of a criminal prosecution.

FIR is strictly no doubt is a early record and the first version of the alleged criminal activity conveyed to the police officer with the object of putting the police in motion in order to investigate, so this means it is an important and valuable document. It also merely marks the beginning of the investigations into the reported offence and its value must accordingly depend on the circumstances of each case including the nature of crime, the position of the informant and the opportunity he had of witnessing the whole or part of the commission of the alleged offence. Besides that FIR should not be treated as the last word to commence a criminal investigation because at is an important and valuable piece of evidence which sets the motion in the machinery of law for investigation of a case, although it is not expected to contain all the details. We also can relate this aspect by referring to cases of PP v Foong Chee Cheong, where Gill J stated that FIR can never be treated as piece of substantive evidence and the fact that no first information report was made is not in itself a ground for throwing out a case. The powers of the police to investigate do not depend solely on Chapter XIII of the Criminal Procedure Code and also acquitted that the accused without calling for his defence on the ground, inter alia, that since the information of the informant had not been reduced into writing in the first instance, the police had no power to act and that consequently the arrest of the accused was void in law. Another case to be related is the case of Khwaja Nazir Ahmad, Privy Council Justice held that FIR is not a main condition to the commencement of criminal investigations but it was given affirmation to sight the first information of an criminal offence and note the statement before it meant to be forgotten or exaggerated.

So to conclude, FIR is not a condition precedent to the commencement of investigations because it only creates the basic aspect that is the affirmation to state an information of an offence into a writing statement and start to investigate about the crime where in other words, making it easy to the police to start to investigate because there is a content about the time, place, and manner in which the information was so recorded.

(b) Discuss whether any evidentiary value to be attached to such FIR ?

The first information report is not to be treated as a substantive piece of evidence. The first information report can be only used for the purpose of corroboration and contradiction. In the case of Autar Singh v Emperor the Indian court held that the first information is a document of great importance and in practice it is always and very rightly produced and proved in criminal trials. But it is not a piece of substantive evidence and it can be used only as a previous statement admissible to corroborate or contradict the author of it. Besides that the first information report is also admissible for corroboration under Section 157 of Evidence Act 1950 where it provides that ‘ in order to corroborate the testimony of the witness, any formal statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time and the fact to place, or before any authority legally competent to be investigate the fact, may be proved. Although the first information report may be admitted under Section 157 for the purposes of corroboration, it constitutes a very weak type of corroborative evidence. It appears that Section 157 of the Evidence Act 1950 is concerned with the consistency of the witness rather than the type of corroborative evidence since it tends to defeat the object of the rule that a person cannot corroborate himself. We can refer in the case of Karthiyayani & Anor v Lee Leong Sin & Anor where the Federal Court held that it is settle law that a person cannot corroborate himself but it would appear that Section 157 of the Evidence Act 1950 enable a person to corroborate his testimony by his previous statement. The rule is based on the assumption that consistency of utterance is a ground for belief rule in the witness truthfulness just as inconsistency is a ground for disbelieving him. So, the previous statement made under Section 157 is admissible as corroboration, it constitutes a very weak type of corroborative evidence as it tends to defeat the object of the rule that a person cannot corroborate himself.

In other words, FIR is not a substantive evidence where before it can be used its scribe or the information must be examine in the court. Hence, by mere mention of the name of an accused in FIR or number of vehicle does not connect such person or vehicle with the crime. It can be related in the case of Dhirendra Nath v State, the Calcutta High Court while emphasising the value of the FIR observed as follows that the FIR is at the time regarded as a part of the res ges tae and on that basis it is sometimes used, not merely for the purpose of corroborating or contradicting the person who lodged it but also for the purpose of lending some assurance to or negativing the general account as given by other witnesses. Apart from that we can also refer to the case of The State v Makund Harijan & Anor, the Orrisa High Court ‘no doubt FIR can strictly speaking, be used only to corroborate or contradict the maker of it but omissions of important facts, affecting the probabilities of the case, are relevant under this Section 11 of the Evidence Act in judging the veracity of the prosecution case’.

It is settled law that the FIR is not substantive evidence. It can be used only to contradict the maker thereof or for corroborating is evidence and also to show that the implication of the accused was not an after-thought. Since the examination of first informant was dispensed with by consent, FIR becomes part of the prosecution evidence. Though the FIR is not a substantive piece of evidence, it can be also used to test and measure the trustworthiness of the prosecution story as a whole.

The FIR is admissible under Section 157 of Evidence Act because it can be used for one of the limited purposes of corroboration or contradicting the maker thereof and another purposes for which the FIR can be used is to show the implication of the accused to be not an after thought or that the FIR can be used under Section 32 (1) of the Evidence Act or under Section 8 of the Evidence Act as to be caused of the informant’s death or as part of the informer’s conduct. This can be viewed by referring to the case of Kishan Chand v State of Rajasthan where the judge held that FIR cannot be used as substantive evidence, not the contents of the report can be said to furnished testimony against the accused than such FIR would not be covered by any of the clauses of Section 32 and 33 of the Evidence Act and will not be admissible as substantive evidence.

As a conclusion, after weighing the essential of FIR to be used as a first stage of a prosecution and clearly reflects that FIR does not carry any evidentiary value to stand as a document which ought to be examined in the court trial. So, here FIR is a document which attached merely to corroborated and contradict any trial either prosecution or defence.

(c) Discuss any likely effects on the non production of such FIR during trial?

Where the evidence of the complainant is the only evidence against the accused the failure to produce the complainant report at the trial raises a presumption that it would, if produced, have been unfavourable to the prosecution’s case and is not merely an irregularity that can be cured under Section 422 of the CPC. In Chin Khing Siong v R, the evidence of the complainant was the only evidence against the accused apart from the formal evidence of the arrest. The complainant gave evidence that he made a police report but the report was not produced in the evidence. The High Court exercising its appellate criminal jurisdiction held that, the likely effect of non production of FIR during trial will be a fatal aspect to the prosecution case. If the report had told a story similar to that told by the complainant in the witness-box it would have been admissible in evidence under Section 157 of the evidence Act. If the report did not support the complainant’s story in the witness-box then he could have been cross-examine upon it under Section 145 of Evidence Act. So, this means if the report was not produced, Section 114 (g) of the Evidence Act will apply and presume that the report would have been unfavourable to the prosecution case. If this were so, the complainant’s evidence would have been discredited, and the whole case for the prosecution would have fallen to the ground. Besides that, the non production of FIR also will cause some effects such as the delay will cause a cloud of suspicion on the credibility of the entire warp and woof of prosecution case. Besides that the effect of delay and non production is also to scrutinize the prosecution evidence more thoroughly so as to sift truth from falsehood or grain from the chaff.

Apart from that, the effect of non production including delay in sending the FIR during trial provides a legitimate basis for suspecting that the FIR was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and establishments and set up a distorted version of the occurrence, and the non production caused some doubts that the FIR had been wrongly done and accused an innocent person for the crime committed. This will give a concern to the magistrate to view the entire prosecution with suspicion whereas failure to produce FIR will reflect malicious intention of police department and it will be derived to injustice to accused and injustice also to the legal system in a country.

Next effect is material fact which ought to be reviewed as concurrent evidence might be lost to establish by prosecution as to protect their interest so that prosecution may face difficulties to build up their case. We also can say that the non production of FIR is one aspect that can make an indication that there was likelihood of exaggeration being introduced or false accusation being thought of, and then onus lies on the prosecution to explain the non production and delay satisfactorily.

Therefore, the non production of FIR during trial can cause a big doubt on prosecution case, where it creates danger creeps in of the introduction of exaggerated account and harm on a innocent person, and finally state as a fatal aspect to a prosecution in court.

Conclusion

FIR is not condition precedent to the commencement of criminal investigations because it is just a basis upon which the police will have the clue to start a criminal investigation, as the FIR only focussed on the occurrence of the offence and forms the basis of case. The second question is there is no evidentiary value to be attached to such FIR because it is not treated as a substantive piece of evidence and only be used for the purpose of corroboration and contradiction evidence, and the third question there is lot of effects of non production of such FIR during trial where it is known to be fatal to the prosecution because it creates doubts and will be injustice to the accused and our legal system.

SYARIAH COURTS PLEADING-[ISLAMIC LAW]

SYARIAH COURTS PLEADING AND ITS COMPARATIVE WITH CIVIL COURTS PLEADING

LEGAL DEFINITION OF PLEADING

In the law, a pleading is one of the papers filed with a court in a civil action, such as a claim/complaint, a demurrer, or an answer. A complaint is the first pleading filed by a plaintiff which initiates a lawsuit. A complaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief whereas a demurrer is a pleading filed by a defendant which challenges the legal sufficiency of a complaint and an answer is a pleading which admits or denies the specific allegations set forth in a complaint and constitutes a general appearance by a defendant. A defendant may also file a cross-claim/complaint as well as bringing other parties into a case by the process of impleader. Pleading is a statement in factual form. It is not a statement of evidence nor law and the person whom submit pleading called as litigant or lawyer.

Examples of pleadings are as follows:-

  1. Statement of claim;
  2. Statement of defence;
  3. Counter-claim;
  4. Reply to counter-claim; and
  5. Reply to Statement of defence


FUNCTION OF PLEADING

  1. To notify the parties about what are the claims or defence and inform each party what the case of the opposite party is which he will have to meet before and at the trial as to avoid surprises.
  2. To limit and provide perimeter of claims and defences.
  3. Pleadings also serve as a fair and proper notice to an opponent so as to enable him to frame and prepare his own case for trial.
  4. It is so in reason to save court’s time by avoid non-arguable issues being introduced.


GENERAL RULES OF PLEADING

  1. Pleading must be precise, concise and definite.
  2. Litigant must use either Basic English or Malay Language.
  3. Must be Facts and not evidence to be pleaded.
  4. Every facts pleaded in pleadings must be proven by witness’s evidence.
  5. The parties cannot invoke any matters or facts which not stated in the pleading.
  6. The court unless satisfy can order for no submission if the case presented clearly.

SYARIAH COURTS PLEADING

Syariah Court is a body where it provides and governs the service of law according to the Islamic law and the enforcement of syariah jurisdiction based on law of syara in an effective manner. According to Syariah Court Civil Procedure [Federal Territories] Act 1997[hereinafter referred as the Act]; the Syariah court jurisdiction only applies to the Federal Territories of Kuala Lumpur and Labuan by virtue of Section 1(1).

Besides that, provision under Section 2 of the Syariah Court Civil Procedure [Federal Territories] Act 1997 shall have effect in all civil proceedings commenced in any Syariah Court except as otherwise provided under any other written law or ordered by the Court.

These Act briefly provide and stipulate the manner of lawsuit to be conducted in a Syariah Civil Proceedings. The mode of beginning a civil proceeding in Syariah Court according to the Act are based on Section 7(1) that states “subject to Subsection (2) or any other written law, every civil proceedings in a court shall be begun by summons” and in Subsection (2) states that “all proceedings in respect of any of the matters specified in the Second Schedule shall be begun by application”.

The system of pleadings in the Syariah Court, laid under Section 63(1) of the Syariah Court Civil Procedure [Federal Territories] Act 1997 that states every statement of claim shall be signed by the plaintiff or his Peguam Syarie and shall contain the following aspects :-

  1. A concise statement, in numbered paragraphs, of the fact relied on by the plaintiff and indicating his cause of action, including particulars of any special capacity in which the plaintiff sues;
  2. Sufficient particulars of the claim;
  3. A statement of the relief claimed; and
  4. Particulars of any other applications

Besides that, according to Section 63(2) “where more than one cause of action is relied on the ground of each and the relief claimed thereon shall be stated separately.

However, defendant relying on Section 64(1) of the Act, which said “a defendant who disputes his liability for the whole or part of any claim in the action may take action based on proviso as follows:-

  1. That says at any time before the day of appearance, serve on the plaintiff a defence; or
  2. Appear on the day of appearance and dispute the plaintiff’s claim

If a defendant appears in Court and disputes the plaintiff's claim, the Court by Section 64(2) may order him to serve a defence within such time as it may direct and this defence must be filled in through Form MS16 as stipulated under Section 64(3) of the Act. Defendant’s defence pleading in Syariah Court should be according with Section 65(1) of the Act where it stated that every defence shall be signed by the defendant or his Peguam Syarie and shall either follow the provisions under proviso as follows:-

  1. Admit or deny every material allegation of the fact in the statement of claim;
  2. State concisely any new facts on which the defendant relies by way of defence; and
  3. Raise concisely and without argument any necessary matters of law

But, bear in mind that denial under Section 65(1) must be clear which shall answer all the point of substance brought on him/her.

In relation to a counterclaim in Syariah Court which according Section 66(1) of the Act, where every counterclaim shall contain/ascertain the like matter and particulars as a statement of claim and shall be signed by the defendant or his Peguam Syarie.

Whereas, Section 66(2), reminds that a counterclaim shall not be made against any person not then a party to the action brought in as stated under statement of claim, but if a cross action is brought an order for consolidation may be made by the leave of Court.

Whenever defendant enter counterclaims, the plaintiff shall, if he desires to defend the counterclaim file and cause to be served on the defendant a defence to the counterclaim within such time as the Court shall direct as ascertain in Section 67(1) of the Act. Meaning that, if the plaintiff fails to comply with Section 67(1) and so Section 16 shall apply, as if the plaintiff were a defendant. Section 16(1) of the Act states that “notwithstanding anything in this Act, the Court may, in its discretion will allow any claim or defence to be made orally as provided that in such a case the Court shall record the particulars of the claim or defence having regard to the requirements of this Act relating to summons or applications, as the case may be”.

Accordance with Section 68 of the Act “if a defence of tender before action is raised, the defendant shall, on filing his defence, pay into Court the amount alleged to have been tendered”. Then the court according to Section 69 of the Act may for sufficient reason grant leave to file and deliver a reply to a defence, whether such defence is a defence against a claim or a counterclaim.

In the case of Non-compliance in the manner or procedure of pleading the Court may refuse to accept pleading and direct for amendment. This is stipulated under Section 70 of the Act. Simply it mean that if any pleading does not contain sufficient particulars, the court may, of its own motion or on the application of any party, order the party responsible to file and cause to be served further and better particulars, and may stay all proceedings pending compliance, as per in Section 71(1) of the Act, and by virtue of Section 71(2), further and better particulars may be filed and served on request without order as consequence of non-compliance.

However, by virtue of Section 80(1) of the Act the Court may at any stage of the proceedings before ruling or judgment, allow the plaintiff to amend his summons, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner, if any, as it may direct. If the amendment referred to in Section 80(1) made after any relevant period of limitation current at the date of issue of the summons has expired, the Court may, if it thinks just, grant such leave on such terms as it thinks fit. It is court’s discretionary power by taking into consideration the parties equality and in the save of justice according to Section 80(2). And any party to any proceedings may amend his pleading at any time before the service of pleadings to the other party without the order of the court as provided under Section 80 of Subsection (3).

CIVIL COURTS PLEADING

Pleadings are statements in writing drawn up and filed by each party to an action stating what his contention will be at the trial and giving all such details as his opponents needs to know in order to prepare his case in answer. It is a cardinal rule that parties is bound by their pleadings and are not allowed adduce facts which they had not pleaded. In the case of Blay v Pollard & Morris (1930) Scrutton LJ observed that “cases must be decided on the issues on the record; and if it is desired to raise other issues they may be placed on the record by amendment.

Some of the documents which come within the definition of pleadings are statement of claim, defence, reply, counterclaim, defence of counterclaim, a statement of claim indorsed on a writ of summons, and further and better particulars of pleadings. Some of the documents, which fall outside the definition of pleadings, are a general indorsement on a writ, a petition, summons or preliminary act, an originating summons and any affidavit or notice of appeal. An affidavit may stand as a pleading if specifically ordered by the court. When further and better particulars are furnished it amounts to pleadings. The objects of pleadings are as follows: (a) to define with clarity and precision the issues in dispute, (b) to require each party to give fair and proper notice to his opponent, in order to enable him to prepare his case and (c) to inform the court the issues, which are, required to be determined by the court.

The importance of pleadings was emphasized by the Supreme Court in the case of Lee Ah Chor v Southern Bank Bhd (1991). The court stated that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal. The rules regarding pleadings are set out under Order 18 of The Rules Of The High Court 1980.

Under Order 18 of The High Court Rules it is stated that a pleading must state the facts and not the law. In the case of Song Lian Chye v Tai Kian Cheong (1983), the Federal Court stated that it is a cardinal rule of pleading that law should not be pleaded. Order 18 Rule 7 states that pleadings must only contain material facts on which the party pleading relies for his claim or defence. It must state only the facts on which the party pleading relies for his claim or defence, and not the evidence by which they are to be proved. It also states that the facts must be in form of a concise statement, but in aiming at conciseness precision should not be sacrificed.

According to Order 18 Rule 6, the pleadings where necessary, shall be divided into paragraphs, numbered consecutively and each allegation being so far as is convenient contained in a separate paragraph. Dates, sums and figures shall be expressed in figures. It is also stated under Order 18 Rule 7(3) that allegation in anticipation of the opponent’s answer should not be made. The pleadings should be confined to what is material at the present stage of the action. Facts necessary for the enforcement of a legal right or duty must be mentioned. Thus in an action for breach of contract, it has to be stated specifically the terms of the contract and the breach thereof by the defendant.

Order 18 Rule 7(3) stipulated that facts, which the law presumes in ones favour or as to which the burden of proof lies upon the opponent need not be pleaded. The party also should not plead conclusion of law. However foreign law and certain customs and usage which are not judicially taken notice by the court, must be pleaded as facts.

All pleadings must be filed in the registry of the High Court where the writ issued and served within the prescribed time as stated below, unless the court gives leave to the contrary. According to Order 18 Rule 1, a statement of claim must be filed and served with the writ unless there is a general indorsement or within fourteen days after the defendant has entered appearance. Under Order 18 Rule 2, a statement of defence must be filed and served within fourteen days after the time limited for the appearance, or after the statement of claim is served on him. If the plaintiff intends to serve a reply he must do so within fourteen days after the service of the defence. This can be found under Order 18 Rule 3(4). If the defendant serves a defence with a counterclaim, the plaintiff must serve a reply if any, within fourteen days after the service of defence. If there is a counterclaim, a defence to the counterclaim within fourteen days after the service of the defence and counterclaim respectively. Generally both the reply and the defence to the to the counterclaim are joint and is served as one document. No pleading subsequent to a reply or a defence to a counterclaim can be served unless the court grants leave.

Normally parties are bound by their pleadings and they are not permitted to raise any issue at the trial if it is not pleaded. In the case of Mat bin Lim & Anor v Ho Yut Kam & Anor (1967), the plaintiff brought an action to recover damages for personal injuries. The defendant in their defence pleaded that the plaintiff’s claim was barred by limitation. In reply the plaintiff alleged there has been an acknowledgement of liability. The defendant applied for the plaintiff’s statement of claim to be struck out on the ground that it disclosed no reasonable cause of action. The court held that the acknowledgement should have been pleaded in the statement of claim and, as this was not done, the plaintiff’s statement of claim to be struck out must be allowed.

As discussed previous, pleadings are statements in writing prepared by the parties and served on each other. They consist of all the material facts on which the parties rely for the purpose of establishing a claim or defence. The pleading process only applies to an action commenced by writ. The term pleading is not positively defined by the rules but is expressed to exclude a petition, summons and preliminary act. An affidavit is not a pleading unless there is a specific order that it stands as one. Nor is a general endorsement on neither a writ, nor a notice of appeal a pleading. Pleadings include a statement of claim, a counterclaim, a defence and defence to counterclaim, a reply and subsequent responses served with the leave of court. When particulars of pleadings are given pursuant to a request or an order of court or voluntarily, they form part of the pleadings.

Every pleading must comply with the formal requirements laid down by the rules. These requirements ensure that the pleading is appropriately identified, that is it has the necessary details in relation to the suit, that the terminology used in respect of certain matters is consistent, that the content of the pleading is expressed in the appropriate form, and that it is properly endorsed and signed. Accordingly, every pleading must “bear on its face” the year in which the writ in the action was issued and the number of action, the title of the action and the description of the pleading. The pleadings must, if necessary, be divided into paragraphs numbered consecutively, each allegation being so far as convenient contained in a separate paragraph. Dates, sums and other numbers must be expressed in figures and not in words. Where the party sues or defends in person, the pleading must be endorsed with his name and address. In any other case, it should be endorsed with the name of the firm and business address of the solicitor by whom it was served. The pleading must be signed by the party’s solicitor or by the party, if he sues or defends in person. Specific provisions as to the paper used for the court documents must be considered in relation to the pleadings.

According to Order 18 Rule 20, pleadings in an action is deemed to be closed at the expiration of fourteen days after the service of the defence. However if there is a reply or defence to counterclaim pleadings is deemed to be closed after fourteen days of the service of the reply or defence to the counterclaim. It also can be noted under Order 18 Rule 22 that either party may, after the defendant has entered appearance apply to the court for an order that the action be tried without pleadings or further pleading as the case may be. The court may make an order provided it is satisfied that the issues in dispute between the parties can be defined without pleadings or further pleadings.

COMPARATIVE OF SYARIAH COURTS PLEADING WITH CIVIL COURTS PLEADING

Pleadings on Civil Courts system can be found under the Rules of The High Court 1980[hereinafter referred as the rules] of Order 18. The major differences which might be found under the rules are the limitation of time period set out for the parties to be bound in their procedure of submitting pleadings and the manner of endorsement of first instance pleadings on summons or writ by a plaintiff. Whereby Syariah Court Civil Procedure [Federal Territories] Act 1997 silent in these matters. Order 18 of Rule 1 of the rules stipulated that plaintiff must serve a statement of claim at any time after the service of the writ or summons but before the expiration of 14 days after that defendant enters an appearance. And defendant must enter his statement of defence before the expiration of 14 days after the time limited for appearing or after the statement of claim is served on him. By virtue of Order 18 of Rule 3(4) a plaintiff whom wants to reply to any defence and a defence to counterclaim must be served by the plaintiff before the expiration of 14 days after the service on him of that defence and counterclaim respectively.

Beside that, Syariah Court Civil Procedure [Federal Territories] Act 1997 silent in the way of illustrating the manner or frame of a pleading should be. Such in Order 18 Rule 6(1), (2), (3), (4) & (5) stipulate the necessary details/formal requirements which should be followed by a litigant while presenting their pleading. Even though, Syariah Court Civil Procedure [Federal Territories] Act 1997 indicate certain manner of drafting pleadings such as statement of claim but it is too general and not specifically illustrated.

Other than that, Syariah Court Civil Procedure [Federal Territories] Act 1997 not contains the form of the pleadings. Where under the Rules of The High Court 1980 Order 7 Rule (1), (2), (3) & (4) explain the forms of a claim or defence by parties in the proceedings and what should be included in the statement such as the statement should be the facts and not the evidence nor it should be brief.

However, both Rules of The High Court 1980 and Syariah Court Civil Procedure [Federal Territories] Act 1997 have the same opinion on the instruction of matters which must be specifically pleaded. It is accordance with Order 18 Rule 8. But no provision of matters which may plead at any time it is arising under Syariah Court Civil Procedure [Federal Territories] Act 1997.

Furthermore, Order 18 Rule 12 of the rules widely explain about the particulars of pleading which ought to be claimed. Order 18 of Rule 13 stipulate the admissions and denials of any allegation made by the parties in the proceedings whether by pleading or a joinder of issue.

Syariah Court Civil Procedure [Federal Territories] Act 1997 also quiet about the period of close of pleadings. But according to Order 18 Rule 14 the parties can denial by joinder of issue if the facts are not admitted whether impliedly or expressly.

Order 18 Rule 15 of the rules are pari materia with Section 63(1) of the Act which constituted the substance of a statement of claim. And Order 18 Rule 18 illustrate about the counterclaim on statement of claim and statement of defence by either parties to the proceedings.

Procedure of striking out of pleadings and indorsement to the pleading can be set out by relying on Order 18 Rule 19 in reason of no cause of action, no defence or malicious defence was framed and even if there is a reasonable cause of action but its scandalous, frivolous and vexatious or meaning to prejudice/embarrass the parties in proceedings and it may abuse the process of the Court. This Rule is equivalent with Section 80(1) of the act where court ought a discretionary power to order for strike out or amend the pleadings for any of the reason stated above before the judgment.

Whereas Order 18 Rule 20 stated the pleadings can be closed on the pleading last served are no documents to be filled after 14 days from the date of last document entered into and there is no reply entered.

Generally, parties are bound by their pleadings and are not allowed to adduce facts which they had not pleaded but however, Order 18 Rule 22 cited that an order can be gained for an action tried without pleading or further pleading if the defendant entered his appearance.

Finally, Order 19 of the rules clarify the position in default of pleadings. Where it can make a proceeding irregular or nullity. Even the writ can be without statement of claim but it must be endorse with the summary of claim. And the brief statement of claim must be served on defendant before expiration of 14 days after the defendant enters on appearance. The failure may amount defendant to apply dismissal action by summon in chambers towards the cause of action brought on him. However, bear in mind that plaintiff can apply for an extension order from court for serving statement of claim before expiration of the date. Unfortunately, Syariah Court Civil Procedure [Federal Territories] Act 1997 did silent of this part where no brief explanation was given to guide litigant in default of pleadings.

CONCLUSION

As a conclusion, Syariah Courts have become an integral part of the court system in Malaysia. In order for it to be accepted as such. It is necessary for the judges and officials of the Syariah Courts to show that they are as capable of dispensing justice as the civil courts. In the past, syariah court were treated as an inferior court and neglected in many ways. There were no doubt grounds to find excuses for the system of justice in the Syariah Courts. Now that they have became better organized, equipped and respected it will be possible for the Syariah Courts to show their worth and capabilities.

In order to make the public and especially the non-Muslims, Citizens in Malaysia less apprehensive and critical of their existence and work. It will be necessary for the Syariah Courts to show that they are capable of giving fair and equitable justice. It is not enough to speak about Islamic justice, it is necessary to demonstrate it by providing best and contemporary Civil Proceeding rules as to capable of dispensing fair and equitable justice to all.

What Article 121(1A) of Federal Constitution has done is to grant exclusive jurisdiction to the Syariah Courts in the administration of such Islamic laws. In other words Article 121(1A) is a provision to prevent conflicting jurisdiction between the civil courts and the Syariah Courts and so why not Islamic law statutes or legislation which region based amended and compiled together as to provided better settlement for the disputes arise in Islamic Civil matters such in discussion above in regard to pleading under Syariah Courts in Malaysia.

SPECIFIC PERFORMANCE-[CONTRACT LAW]

SPECIFIC PERFORMANCE

The legal relationship between Ali dan Baba arise by Sale and Purchase Agreement [thereafter known as SPA] entered both parties for a piece of land in Nilai measuring 500 acres. The contract between them named Ali as a land owner and Baba as a purchaser of that land. As a result both Ali and Baba entered into legally binding SPA on February 2006 and upon signing and execution of SPA document the 10% as earnest deposit paid to Ali by Baba.

However, Ali on March 2006 terminates the SPA on the ground of delay in Baba’s loan application approval. But, this is unfair to Baba because he is relying on the validity of SPA for the terms of three [3] months before it can be revoked by either party or Ali. Ali was so greedy and influence with the high offer by Enstek Development Corporation and failure of Ali to revoke the Agreement just within one [1] month by not wait till the expiry of the term 3 months stipulated under SPA for the approval of the loan application is a fatal to the contract of sales and purchase of land.

And so, Baba is on a better position to enforce his contractual rights provided under equitable remedies which is specific performance. What is specific performance? Specific performance is an order requiring a party to a contract to perform or complete the performance of his or her obligations under the contract. The effect of the order is therefore to put the parties into the position they would have been in had the contract been performed, and it is the equitable equivalent of damages in respect of the claimant's expectation loss. If the party refuses to obey the court's order then the court could proceed against him for contempt of court. The provision for the grant of a decree for specific performance of contracts are found under Section 11 till Section 29 of the Specific Relief Act 1950 [Act 137]

The remedy of specific performance is discretionary power of the court, but the circumstances in which it will or will not be grant­ed are to a considerable extent certain. Rather than attempting to define when specific performance will be granted, the courts have defined the bars to the granting of an order, and tend to approach the exercise of discretion negatively: if there is nothing against the making of an order, it will be made.
There are numerous most impor­tant possible bars, which the court will consider before granting an order of specific performance.

There are three main principles which will derive to the conclusion of a judge in granting an order of specific performance only in the circumstances that:-
  1. Damages would not be an adequate remedy
  2. The court could not effectively enforce its order because constant supervision by the court would be necessary
  3. It must be a Contract for non-personal work and services

(1)DAMAGES WOULD NOT BE AN ADEQUATE REMEDY

The first and principal hurdle for a claimant to overcome is to show that damages would not be an adequate remedy. In most cases, damages are adequate and so specific perform­ance will not be ordered. In order to show that they are not adequate, the claimant will usually have to demonstrate either the uniqueness of the thing contracted for, and/or the financial ineffectiveness of damages.

In example, if A refused to transport B's cargo to Colombo. B may well apply to the court for a decree of specific performance ordering A to carry out the contract.

However, specific performance will not be granted where the damages will provide an adequate remedy. In the above case, the court may not allow B's application for specific performance because B could send the cargo to Colombo on another ship and could claim damages for any extra expenses incurred or loss of profits suffered as a result of A's breach of contract.

Thus an appropriate case for the grant of specific performance is a contract concerning land or goods of particular rarity. In a decided case of Zaibun Sa bte Syed Ahmad v Loh Koon Moy & Anor [1982] 2 MLJ 92 A contracts to sell to B certain pieces of land adjacent to some land on which B was carrying out mining operations. Later A refused to sell and B sued for specific performance. The Privy Council held that the land in question was of particular importance for use in association with B's tin mining operations and compensation by way of money, i.e. `damages' to B, would not afford adequate relief. The court granted B's claim for specific performance. So relying on the same principle Baba has a better title to claim for specific performance because In contracts for the sale of property such as land the adequacy of damages may well depend on the uniqueness of the thing which the claimant contracted to buy. It may be unique either because there is no other thing in existence like it, or because, however ordinary the thing is, the claimant if awarded damages would be unable to obtain another thing like it from anywhere else.

(2)THE COURT COULD NOT EFFECTIVELY ENFORCE ITS ORDER BECAUSE CONSTANT SUPERVISION BY THE COURT WOULD BE NECESSARY

The general principle is that, the court could not effectively enforce its order because constant supervision by the court would be necessary. In the case of Lee Sau Kong v Leow Cheng Chiang [1961] MLJ 17 A agreed to purchase from B all the scrap iron lying within a certain concession in Terengganu. Later B alleged that A had removed from the concession machinery and metal other than scrap. This dispute was amicably settled and A gave B a cheque for RM4,000.00 The cheque bounced and B terminated the contract by refusing to allow A to remove scrap iron from the concession. A sued B for specific performance.

It was held that B had no justification to terminate the contract. B should have taken other action in order to recover on the bounced cheque. Therefore B was in breach of contract. However the court refused to order specific performance because of the prevailing state of confusion as to the subject matter of the contract. Any order for specific performance would involve a degree of watching and supervision by the court which would be altogether impracticable. Arguably, the difficulty of supervision is no longer a bar to specific performance, but rather a factor going to the court's discretion. It may be that the need for supervision, even constant supervision, will not prevent specific per­formance being granted where it is important to protect the claimant's interest and where it is clear from the contract and/or order what the defendant is required to do such as in the case between Ali and Baba whereby supervision of court is necessary to ensure that Ali as parties to the contract perform his contractual rights as he agreed through SPA.

(3)IT MUST BE A CONTRACT FOR NON-PERSONAL WORK AND SERVICES

It is well established that the court will not order specific performance of a contract involving personal services, or service contracts which are personal in nature. In an English case, Lumley v Wagner [1852] 1 De GM & G 604;42 ER 687 A, a famous opera singer contracted to sing for B at a theatre for three months and promised that she will not sing elsewhere during that time without B's written permission. A later agreed, for a larger sum of money, to sing for C at the Covent Gardens and abandoned her agreement with B. B thereupon sued for specific performance of the contract.

The court held that it will not enforce a positive covenant of personal service and therefore would not order A to sing at B's theatre. However the court granted an injunction restraining A from singing for C in breach of contract. However, in the case involving Ali and Baba where the contract requires the performance of services which are not personal in nature, there is no bar, even if the services are to be performed by a particular individual so Baba is liable to obtain the order of specific performance against Ali to withdraw the termination of SPA otherwise carry on the contract as stipulated by terms and condition of the agreed agreement.

Beside that, in common law there are others additional circumstances whereby Specific performance will be refused by the court:-

  1. Where it would cause severe hardship to the defen­dant;
  2. Where the court cannot grant specific performance of the contract as a whole;
  3. Specific performance will not be granted where it would be in vain to do so;
  4. Contract too vague and it is so impossible for the order to state exactly what the defendant is required to do; and
  5. The claimant who willing to claim must come with clean hands.

As a conclusion, Baba should apply for the order of specific performance and the court might grant the order by taking into considerations of the following above matters. Because Ali only can lawfully terminate the agreement during the expiry of three (3) months as stipulated under SPA.

Wednesday, April 9, 2008

TORT-[MULTIPLIER&MULTIPLICAND]

Calculation on Loss of Earnings

The Multiplier

There are three factors which should be considered in determining the multiplier in calculating the amount of damages are age of deceased, status or relation of claimant and duration of the needed support. As per Section 7(3)(iv)(d) of Civil Law Act 1956. The calculation for multiplier will be as below:-

Deceased age between 31 years – 54 years:-
= (55 – [Age at the of accident]) ÷ 2
= (55 – [35 years old]) ÷ 2
= 10 years loss of earnings or support

The Multiplicand

Dependencies who have suffered with actual loss of dependency during death of the contributor; so that support must be given and used exclusively on the dependant and it includes money and money’s worth such as services rendered to family relationship. It was decided in the case of Chan Chin Ming v Lim Yok Eng (1994) 3 MLJ 233 where revision made under Section 7 Civil Law Act 1956.

The assessment of Multiplicand as below:-

For an example if the deceased age between 31 years – 54 years

The calculation on the amount of loss of earnings:-

= ([Net Income per month-Living Expenses]) x 12mth x [(55–Age at the of accident) ÷ 2 ]
= [RM 900.00 – RM 100.00] x 12 months x 10 years
= RM 96,000.00

DATO' SERI ABDULLAH AHMAD BADAWI-[BIOGRAPHY]

DATO' SERI ABDULLAH AHMAD BADAWI (2003 - present)

Dato' Seri Abdullah Ahmad Badawi, affectionately known as "Pak Lah", is the fifth and current Prime Minister of Malaysia. Abdullah was born on November 26, 1939, in the northern Malaysian island of Penang. He received a Bachelor of Science in Islamic Studies from the University of Malaya in 1964. He held a series of civil service posts, including deputy secretary general (1974-78) in the Ministry of Culture, Youth and Sports, before entering politics. Abdullah was elected to parliament in 1978 for his constituency in Kepala Batas (Penang), and begin his rise in the government and UMNO, serving as education (1984-86), defense (1986-87), foreign (1991-99) and, finally, deputy prime minister (1999-2003) following the dismissal of Anwar Ibrahim. In 2003 he succeeded Tun Dr Mahathir bin Mohamad as prime minister of Malaysia. Calling for modern and progressive Islamic rule as well as reform, he led the Barisan Nasional coalition to a stunning landslide victory in the 2004 parliamentary elecitons, by winning 198 out of 220 seats in parliament, and wresting control of the Terengganu state government back from the opposition.

But however he cited a great lost by losing 5 states (inclusive of Kelantan which he failed to curb from PAS) to the opposition’s line up while leading the BN coalition during 2008 general election and formed the federal government with a simple majority by winning 140 out of 222 parlimentary seats.

TUN DR MAHATHIR-[BIOGRAPHY]


Born Dec 20th, 1925, Alor Setar, Kedah, Malay states [now in Malaysia]In full TUN DR. MAHATHIR BIN MOHAMAD, MOHAMAD also spelled MOHAMED or MUHAMMED, Malaysian politician who served as prime minister from 1981 - 2003 and oversaw his country's transition to an industrialized nation.

The son of a schoolmaster, Mahathir was educated at Sultan Abdul Hamid College and the University of Malaya (King Edward VII College of Medicine) in Singapore, where he studied medicine. After graduating in 1953 he worked as a government medical officer until 1957 when he set up his own private practice in Alor Setar, Kedah. Dr. Mahathir has been active in politics since 1945. He has been a member of the United Malays National Organisation (UMNO) since its inception in 1946. He was first elected to Parliament in 1964 as a member of the United Malays National Organization (UMNO), the dominant party within the ruling governmental coalition. In 1969, however, Mahathir was expelled from the UMNO after his forceful advocacy of ethnic Malay nationalism brought him into conflict with Prime Minister Tunku Abdul Rahman. (Though politically dominant, Malaysia's ethnic Malay majority was much poorer than the ethnic Chinese minority, which dominated the economy.) The New Economic Policy that the government adopted in 1971 to improve the economic situation of Malays embodied many of the ideas Mahathir had advocated.

Owing to his keen interest in the country's education, he was appointed Chairman of the first Higher Education Council in 1968, Member of the Higher Education Advisory Council in 1972, Member of the University Court and University of Malaya Council, and Chairman of the National University Council in 1974. After Tun Abdul Razak became prime minister in 1970, Mahathir rejoined UMNO and was reelected to its Supreme Council in 1972. In 1973, Dr. Mahathir was appointed a Senator, a post he relinquished in order to contest in the 1974 General Elections. He was reelected to Parliament unopposed in 1974 and was then appointed Minister of Education. When Datuk Hussein bin Onn became prime minister in 1976, he made Mahathir his Deputy Prime Minister in addition to being Minister of Education. In a Cabinet reshuffle two years later, he relinquished the Education portfolio for that of Trade and Industry. As Minister of Trade and Industry, he led several investment promotion missions overseas.

Dr. Mahathir was elected as one of the three Vice Presidents of UMNO in 1975. In 1978, he won the Deputy President seat. In June 1981, soon after Datuk Hussein had announced his retirement, Mahathir was elected president of the UMNO, which ensured his succession as the Fourth Prime Minister of Malaysia on 16 July 1981. He was the first commoner to hold that office. He was returned unopposed as President in 1984. In the 1987 party elections, Dr. Mahathir defeated his challenger to retain the Presidency and in 1990 and 1993, he was again returned unopposed as party President. Under his leadership, the ruling party Barisan Nasional (National Front) won landslide victories in the 1982, 1986, 1990, 1995 and 1999 General Elections.

Mahathir weathered several challenges to his leadership from within the UMNO, which won four general elections under his leadership in the period from 1982 to 1995. His long prime ministry gave Malaysia the political stability it needed to pursue policies that would foster sustained economic growth. The government welcomed foreign investment, reformed the tax structure, reduced trade tariffs, and privatized numerous state-owned enterprises. Mahathir sought to bridge Malaysia's remaining ethnic divisions by increasing general prosperity. In this regard, the New Economic Policy, which had encouraged Malay economic success, was replaced in 1991 by the New Development Policy, which emphasized general economic growth and the elimination of poverty. Under Mahathir's leadership, Malaysia acquired one of the most prosperous and dynamic economies in Southeast Asia, with a burgeoning manufacturing sector, an expanding middle class, rising literacy rates, and increased life expectancies.

Dr. Mahathir is married to a doctor, Datin Seri Dr. Siti Hasmah bt Mohd Ali, and they have seven children Marina, Mirzan, Melinda, Mokhzani, Mukhriz, Maizura, and Mazhar and ten grandchildren.

TUN HUSSEIN ONN-[BIOGRAPHY]

TUN HUSSEIN ONN (1976 - 1981)

Tun Hussein Onn was Malaysia’s third prime minister, leading the country from 1976 to 1981. He was born in Johor Bahru, Johor on February 12, 1922 to Dato Onn Jaafar and Datin Halimah Hussein.

He received his early education in Singapore and at the English College in Johor Bahru. After leaving school, he joined the Johor Military Forces as a cadet in 1940 and was sent a year later to the Indian Military Academy in Dehra Dun, India. Upon completion of his training, he was absorbed into the Indian Army and served in the Middle East when the Second World War broke. After the war, his vast experience prompted the British to employ him as an instructor at the Malayan Police Recruiting and Training Centre in Rawalpindi.

Tun Hussein came back to Malaysia in 1945 and was appointed Commandant of the Johor Bahru Police Depot. The following year he joined the Malaya Civil Service as an assistant administrative officer in Segamat, Johor. He was later posted to the state of Selangor, becoming Kelang and Kuala Selangor’s district officer.

Tun Hussein, who came from a family with deep nationalistic spirit and political roots, resigned from the civil service to go into politics. In 1949, he became the first youth chief of UMNO (United Malays National Organization), a party his father helped established. In 1950, he was elected the UMNO secretary general. Tun Hussein however left UMNO in 1951 to join his father in forming the Independence of Malaya Party (IMP). With IMP losing momentum, Tun Hussein went to London to study law at Lincoln’s Inn, qualifying as a Barrister-at-Law. He came back as a certified lawyer and practiced in Kuala Lumpur.

Tun Hussein returned to politics in 1968 after being persuaded by Prime Minister Tun Abdul Razak to rejoin UMNO. He stood in and won the general elections in 1969 and was then appointed as the education minister. Tun Hussein’s meteoric rise continued when on August 13, 1973 he succeeded the late Tun Dr Ismail as the Deputy Prime Minister. On January 15, 1976 he was appointed as the prime minister of Malaysian after the passing away of Tun Razak.

Tun Hussein is renowned for stressing on the issue of unity through policies aimed at rectifying economic imbalances between the communities. For instance, April 20, 1981 saw the National Unit Trust Scheme being launched. He also gave serious consideration to the concept of Rukun Tetangga and the fight against the drug menace.

Tun Hussein, who was married to Toh Puan Suhaila Tan Sri Haji Mohd Noah, underwent a coronary bypass in early 1981. On July 17 the same year, he retired from active politics and relinquished his prime minister post due to health concerns. He passed away on May 29, 1990 at the age of 68.

For his efforts in promoting goodwill among the various communities, Tun Hussein Onn is remembered as the Father of Unity.

TUN ABDUL RAZAK-[BIOGRAPHY]

TUN ABDUL RAZAK BIN DATO' HUSSEIN (1970 - 1976)

Tun Abdul Razak succeeded Tunku Abdul Rahman as the second Prime Minister of Malaysia, heading the country from 1970 to 1976.

Born in Pulau Keladi, Pahang on March 11, 1922, Tun Razak is the only child to Dato' Hussein bin Mohd Taib and Hajah Teh Fatimah bt Daud. A bright student, Tun Razak received his early education at the Malay College Kuala Kangsar in 1934.

After joining the Malay Administrative Service in 1939, he was awarded a scholarship to study at Raffles College in Singapore in 1940. His studies at the college ceased with the onset of the Second World War.

With a Malayan Union scholarship, Tun Razak left for Britain in 1947 to study law. In 1950 he received a Degree of an Utter Barrister from Lincoln's Inn. During his student days in England, Tun Razak was a member of the British Labour Party and a prominent student leader of the Kesatuan Melayu Great Britain (Malay Association of Great Britain). He also formed the Malayan Forum, an organization for Malayan students to discuss their country's political issues.

Upon his return, Tun Razak joined the Malayan Civil Service. Owing to his political caliber, in 1950 he became the youth chief for United Malays National Organization (UMNO). Two years later, he worked as the Assistant State Secretary of Pahang and in February 1955, at just 33 years of age, became Pahang's Chief Minister. He stood in and won the country's first general elections in July 1955 and was appointed as the Education Minister. Tun Razak was also a member of the February 1956 mission to London to seek the independence of Malaya from the British.

After the general elections in 1959, he became the Minister of Rural Development in addition to holding the portfolios of Deputy Prime Minister and Minister of Defense. His achievements include formulating the development policy known as the Red Book. On September 1970, Tun Razak succeeded Tunku Abdul Rahman Putra as the Prime Minister of Malaysia.

Tun Razak is also renowned for launching the New Economic Policy (NEP) in 1971. He and the "second generation" of Malay politicians saw the need to tackle vigorously the economic and social disparities which fuelled racial antagonism. The NEP set two basics goals - to reduce and eventually eradicate poverty, and to reduce and eventually eradicate identification of economic function with race.

Tun Razak set up the National Front on January 1, 1973 to replace the ruling Alliance Party. He increased the membership of its parties and coalitions in an effort to establish "Ketahanan Nasional" (National Strength) through political stability.

For his contributions in the area of national and rural development, Tun Abdul Razak is known as the Father of Development.

TUNKU ABDUL RAHMAN-[BIOGRAPHY]

TUNKU ABDUL RAHMAN PUTRA (1957 - 1970)


For his contributions and sacrifices in bringing the country from colonialism to independence, Tunku Abdul Rahman is known as the Father of Independence. He became the first prime minister of the Federation of Malaya from 1957 to 1963, and of Malaysia from 1963 to 1970.

Tunku was born on February 8, 1903 in Alor Setar, the capital of the State of Kedah. He is the seventh prince of Sultan Abdul Hamid Shah, the twenty fourth Sultan of Kedah, and Che Manjalara. Said to be a robust and bright boy with a particular fondness for sports, Tunku received his early education at the Debsurin School, Bangkok and Penang Free School.

On a Kedah Government scholarship, he went on to study at St. Catherine's College, Cambridge University, where he received his Bachelor of Arts in law and history in 1925. A firsthand experience in racial discrimination with the college's administration was said to have intensified his conviction in fighting for equality and ignited his desire in making his homeland an independent state, free from British colonialism.

His leadership flair also unfolded in England. Realizing the Malay students there were not represented by any organization, he established the Kesatuan Melayu Great Britain (Malay Association of Great Britain) and became its first secretary.

After returning home, he joined the Kedah Civil Service as a cadet in the Legal Advisor's Office, and then as a district officer in several Kedah districts. He proved unpopular among some British officials thanks to his outspokenness and tendency to introduce reforms in his quest to improve the living standards of the people.

His attempt at completing his law studies at the Inner Temple in England in 1938 came to a halt due the outbreak of the Second World War. He resumed his studies eight years later and came home with his legal qualifications in 1949.

The political awareness he gained while making friends with people from various nations in England did not go to waste, when he was made chairman of the United Malays National Organization (UMNO) soon after his return. On August 26, 1951, Tunku became the UMNO President succeeding Dato' Onn Jaafar. He traveled all over the country meeting people from all walks of life to promote unity. His efforts in overcoming the country's political problems by way of cooperation among the various ethnic groups saw the birth of the Alliance Party in 1955.

Under his leadership, the Alliance won the country's first general election in July 1955. Tunku was then appointed the country's Chief Minister and Minister of Home Affairs. In 1956, he led a mission to London for a discussion with the British government concerning the independence for Malaya. The meeting resulted in the signing of the Independent Treaty at Lancaster House in London on February 8, 1956 and consequently, the independence of Malaya in August 31, 1957. Tunku was then elected as the first Prime Minister of Malaya, and led the Alliance to victory in the 1959, 1964 and 1969 general elections.

In May 1961, Tunku proposed the idea of Malaysia - a federation of Malaya, Singapore, Sarawak, North Borneo (later called Sabah) and Brunei. All but Brunei joined in the federation on July 9, 1963. Singapore however withdrew from Malaysia in 1965 due to disputes. On Sept 22, 1970, Tunku stepped down as the Prime Minister and was succeeded by Tun Abdul Razak.

Tunku, who was blessed with seven children from his marriage to the late Sharifah Rodziah Syed Alwi Barakbah, passed away in 1990.

CONTRACT LAW-[CONSIDERATION]

Under Malaysia law, “consideration need not be adequate”.
What do you understand by the said statement?

What mean by consideration in legal terms? Consideration is a benefit which must be bargained for between the parties, and is the essential reason for a party entering into a contract. Consideration must be of value (at least to the parties), and is exchanged for the performance or promise of performance by the other party (such performance itself is consideration). In a contract, one consideration (thing given) is exchanged for another consideration. Not doing an act (forbearance) can be consideration, such as "I will pay you $1,000 not to build a road next to my fence." Sometimes consideration is "nominal," meaning it is stated for form only, such as "$10 as consideration for conveyance of title," which is used to hide the true amount being paid. Contracts may become unenforceable or rescindable (undone by rescission) for "failure of consideration" when the intended consideration is found to worth less than expected, is damaged or destroyed, or performance is not made properly (as when the mechanic does not make the car run properly). Acts which are illegal or so immoral that they are against established public policy cannot serve as consideration for enforceable contracts such as prostitution, gambling where outlawed, hiring someone to break a skater's knee or inducing someone to breach an agreement (talk someone into backing out of a promise.)

If the promisor gets what he asks for in return for his promise, he has received sufficient consideration and his bound. It is immaterial that his promise is far more valuable than the price he asked for. The courts are generally concerned only with the question whether the promisor has made a bargain, not with whether he has made a good bargain.

There are certain acts or promises which, as a matter of policy, are not recognized by the courts as being of any value in law and which are therefore an insufficient consideration. But if the alleged consideration is not within this category, then the courts will not inquire whether the consideration is adequate. So long has the consideration has some value in the eyes of the law, that is enough. Hence, the said consideration must be sufficient (or real) but need not be adequate.

Explanation 2 to section 26 of Contracts Act 1950 provides that an agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy may be taken into account by the court in determining the question whether the consent of the promisor is freely given. The illustration to section 26 of Contracts Act 1950 clearly shows the application of the rule:-

"...(f) A agrees to sell a horse worth $1000 for $10. A’s consent to the agreement was freely given. The agreement is a contract notwithstanding the inadequacy of the consideration..."

In the case of Bolton v Madden (1873) LR 9 QB 55 the court stated that “the adequacy of the consideration is for the parties to consider at the time of making the agreement, not for the court when it is sought to be enforced”. Therefore, a contract to sell a $100,000 house for $1,000 is perfectly valid and enforceable, despite the imbalance of the benefit accruing to each party.

Thus in Malaysia the case of Phang Swee Kim v Beh I Hock [1964] MLJ 383 the respondent alleged that the appellant has trespassed on his land and he instituted an action claiming for possession and also for an account of all income received by the appellant from the land. The appellant counterclaimed for a declaration that she was entitled to the said land. At the hearing, the appellant contended that there was an oral agreement made between her and the respondent in which the respondent agree to transfer the land to her on payment of $500. The learned trial judge accepted her evidence but held that the agreement is void due to inadequacy of consideration. However on appeal, the Federal Court held that by virtue of explanation 2 to section 26 of the Contracts Acts 1950, the inadequacy of the consideration was immaterial. There was good consideration under Section 2(d) of the Contracts (Malay States) Ordinance 1950 and judgment was made in favour of the appellant. In addition there was no evidence of suppression of the value of the property, misrepesentation, or fraud.

However, where one party denies that his consent is freely given; where he alleges, that the other party has committed or exercised undue influence, then the court will take into account the inadequacy of the consideration to determine whether or not the party’s consent was freely given as per in the illustration (g) to Section 26 of Contracts Act 1950.

Similarly, Section 27(a) of the Specific Relief Act 1950 provides that “specific performance of a contract cannot be enforced against a party thereto if the consideration to be received by him, is so grossly inadequate, with reference to the state of things existing at the date of the contract, as to be either by itself or coupled with other circumstances, evidence of fraud or undue advantage taken by the plaintiff”.

So long as the consideration has some economic value, such as value in terms of money, then the consideration is said to be valid. It does not matter even if that the value cannot be precisely quantified.

In the Court of Appeal case of De La Bere v Pearson [1908] 1 KB 280 the appellant were publishers of a financial newspaper. They published a column to advice on investments and invited readers to write in for such advice. The respondent wrote and asked for advice and also the name of a good stockbroker so as to be able to invest his money. The appellant gave the name of a stockbroker who was actually an undischarged bankrupt. The money sent to the stockbroker was misappropriated. The respondent sued the newspaper for breach of contract to exercise due care in giving him financial advice. The Court of Appeal held that there was a contract between the parties. The publication of the letter in the newspapers had the tendency to increase the circulation of the newspapers and thus benefited the appellants. Therefore it was decided that there was sufficient consideration.

In the Chappel & Co Ltd v Nestle Co Ltd [1960] AC 87 the plaintiff owned the copyright in a dance tune called “Rockin Shoes”. The defendant bought the records at 4d each and as a publicity stunt sold the records to the public for 1s 6d each plus 3 Nestle chocolate wrappers from Nestle 6d milk chocolate bars. The wrappers received were thrown away. The defendant (Nestle) willing to pay royalties to the plaintiff at 6.25% if the ordinary retail selling price of the above said to be fixed at 1s 6d. The plaintiff refused, contending that the said price was only part of the consideration and that the balance was represented by the three chocolate wrappers. The question was, “does the chocolate wrapper have any economic value?” The House of Lords held that it was unrealistic to hold that the wrappers were not part of the consideration. The offer to sell the records was not to return simply 1s 6d, but also included the wrappers. The whole object of selling the records was to increase the sales of chocolate. Thus the acquiring and delivering of the wrappers was certainly part of the consideration.

As the conclusion with reference to the above arranged cases we are of the understanding that, providing consideration has some value, the Malaysian Courts will not investigate its adequacy. Where consideration is recognized by the Malaysian law as having some value, it is described as "real" or "sufficient" consideration. Further the courts will not investigate contracts to see if the parties have got equal value as long the is a consideration for the base contracts between parties.

Pak Ali wants to give his land to his daughter Kamariah, for her 21st birthday. As Kamariah will not be paying any money to her father. Her father is worried that since there is no consideration for the transfer of his land to Kamariah, the transfer may be void by virtue of section 26 of the Contracts Act 1950. Advise Pak Ali.

Consideration itself is defined in Section 2(d) of the Contracts Act as when, at the desire of the promisor, the promisee or any other person has done or abstained from doing, ordoes or abstains from doing, or promise to do or to abstain from doing, something,such act or abstinence or promise is called a consideration of the promise.

Therefore on the above facts we would like to advise Pak Ali that he may be able to argue that the above transfer of land from him to her daughter named Kamariah would fall under exception (a) to Section 26 of the Contacts Act. Although the said Act does not define “near relation”, yet the courts by decided cases had actually accept members of immediate family will ordinarily constitute as “near relation”.

Even though, English law does not recognize natural love and affection as valid consideration. However, the position under the Contracts Act 1950 is differing by virtue of Section 26(a) of Contracts Acts which said as follows:-

“...An agreement made without consideration is void, unless it is expressed in writing and registered under the law (if any) for the time being in force for the registration of such documents, and is made on account of natural love and affection between parties standing in a near relation to each other...”

As such Illustration (b) to section 26 of Contracts Act provides an example which as follows:-

“...A, for natural love and affection, promises to give his son, B, $1,000. A puts his promise to B in writing and registers it under a law for the time being in force for the registration of such documents. This is a contract...”

Therefore, an agreement made on the ground of natural love and affection would be binding in Malaysia if the requirements of Section 26 (a) of the Contracts Act are present, if it is full filled the condition as follows:-

i) It is expressed in writing;
ii) It is registered (if applicable); and
iii) The parties stand in a near relation to each other.

The requirement that the document be registered appears unnecessary as there is no law in force in Malaysia requiring registration of agreements made on account of natural love and affection.

In the case of Re Tan Soh Sim [1951] MLJ 21 the deceased, Tan Soh Sim, had three sisters. Their mother was firstly married to one Tan Ah Thai and had four children. When Tan Ah Thai died, she married one Khoo Kim Huat and had seven children. The Tan and Khoo children maintained social and friendly relations with one another. Tan Soh Sim married, but having no issue, adopted four children. Her husband, one Chan, married a second wife, Tan Boey Kee.

When Tan Soh Sim was on her death-bed, too ill to make a will, all the Khoo and Tan children signed a document drawn up by a solicitor renouncing all claims to Tan’s estate in favour of the four adopted children and Tan Boey Kee. They were told by Tan Boey Kee that this was the testamentary intentions of Tan Soh Sim. Tan Soh Sim died without having recovered consciousness. The question arose in the distribution of Tan’s estate, whether the instrument signed was valid. It was contended that he instrument was a contract under Section 26(a) of the Contracts (Malay States) Ordinance 1950.

This raised the further question what exactly was meant by “near relations” under section 26 (a) of the Ordinance. The Court of Appeal stated that the words ‘relationship’ and ‘near’ must applied and interpreted in each case according to the mores of the group to which the parties belong and with regard to the circumstances of the family concerned. A person who has been adopted according to Chinese custom therefore is a relation and the answer to the question whether he is a “near” relation within the scope of section 26 of the Contracts Ordinance depends on the position of the other person in regard to whom the question arise. It can hardly be doubted that agreements between an adopted child and his adoptive parents or brothers would be supported on the ground of affection existing between them. But here, according to Chinese custom, the Khoo and Tans children are related to the four adopted children of Tan Soh Sim only in a special and limited way which is not near. Tan Boey Kee’s relationship to them is certainly more remote than that of the children, if indeed any relationship existed. Accordingly, the court held that the instrument did not fulfill section 26(a) of the Contracts Act.

The court further stated that in the phrase “natural love and affection”, full effect must be given to the world “natural”, and that it means not only “reasonably to be expected”, but “reasonably to be expected, having regard to the normal emotional feelings of human beings”. This immediately establishes the connection of these words with the latter phrase “standing in a near relation”. That phrase indicates that the “emotional feelings” required are of a special type, that is to say, they are such feelings as may ordinarily be expected to spring from the fact of the “near relation”. “If either the feelings or the relation are lacking the section does not apply.”

The court further mentioned that it would take a liberal view on the question what type of relation could in law be near, and the answer to that question might be affected by the circumstances of the individual case. For example, if an orphan was brought up by comparatively remote relations, who were nevertheless his nearest, the court, might hold them to be “near” in the special circumstances, though ordinarily they would not be “near”. In the present case, the court found that both these factors, feelings (natural love and affection) and nearness were lacking and held that the document was not a contract.

In contrary, in the case of Pak Ali he is entitle to transfer his land to his daughter Kamariah as the remoteness of the blood relations are too close as a father and daughter which might validate the transfer of the land without any monetary consideration in conjunction with his daughter’s 21st birthday as a gift. Further it is evident that, if an agreement and/or transfer made between Pak Ali and his daughter as per the condition precedent of Section 26 (a) of the Contracts Act been fulfilled at first then the transfer of the property made between both of them deem to be valid in accordance with Malaysian Law.

Beside that, the strong and close proximity of relationship between Pak Ali and Kamariah as father and daughter is adequate to maintain that no consideration to be deposited by Kamariah Pak Ali’s daughter to entitle her to receive the land from Pak Ali as her 21st birthday gift which is in accordance with provision of Malaysian Contracts Act and case law precedents decided therein.

Therefore, as a conclusion Pak Ali without any fear and in view of the case laws decided in favour of his position may transfer his land to his daughter without any consideration from his daughter, Kamariah based on the sole consideration of “natural love and affection” as per stipulated by virtue of Section 26 of Contracts Act 1950.

Monday, April 7, 2008

PRIMA FACIE-[CRIMINAL PROCEDURE CODE]

(a) What do you understand with the word “prima facie”?

Prima facie is an element that usually arises at the end of the prosecution case where there will be a determination whether a prima facie case has been made out that is to say, whether there is some evidence which, if believed, establishes the essential elements of the offence charged. If there is such evidence, then the defence must be called but care must be taken to leave suspended the question of the veracity and accuracy of recollection of witnesses until after the close of the case for defence. The definition of prima facie can be seen from various of interpretation about it where, according to the Black law Dictionary, it states prima facie as at first sight on first appearance but subjected to further evidence or information. Besides that this dictionary also state that prima facie is a sufficient element to establish a fact or raise a presumption unless disproved or rebutted or in other words the establishment of a legally required rebuttable presumption. This means according to Black Law Dictionary, prima facie can be concluded as a party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favour. Apart from that, the definition of prima facie also can be seen in Burton Legal Thesaurus by William Burton that says, prima facie is adequate, lawfully sufficient, legally adequate, satisfactory, sufficient on its face, sufficient on the pleadings, sufficient to make out a case and sufficiently strong. This means that, prima facie is apparently at first glance at the first sight before further examination had been done. Next, we have the definition by the Law Lexicon written by P.Ramanathan Iyyer that says, a prima facie is a element that formed on the first appearance as far as can be judged from the first disclosure or a fact that presumed to be true unless disproved by some evidence to the contrary. Besides that, the Law Lexicon also states that a prima facie case is a case made out by sufficient testimony where one which is established by sufficient evidence and can be overthrown only by rebutting evidence adduced on the other side. So this means, a prima facie case is amount of evidence which would be sufficient to counterbalance the original or general presumption of innocence and warrant a conviction if not then encountered and controlled by evidence tending to contradict it and render it improbable, or to prove other facts inconsistent with it. According to the Canadian Law Dictionary prima facie stated as at the first glance or on the surface that means covers of allegations made and which if they are believed is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent employer. Then definition given by the Australian Legal Dictionary about prima facie tells that, the sufficiency of evidence upon which a person could be convicted of an offence or talking the evidence of the prosecution at its highest. Prima facie also tells that a evidence which is capable of proving the elements of the offence beyond reasonable doubt. We also can refer certain cases that states about prima facie that is the case of A.Ragunathan v PP, where the court held according to the given statement, the court have to determine whether to accused the person by relating the statement with elements in the charge, and if accepted the charge against him will be prosecuted. This then followed in the case of PP v Abdullah bin Ismail [1983], Justice Seah said the High Court was bound by the ruling of the Federal court in Ragunathan. His Lordship said that the test of a prima facie case is ‘if I were to accept the prosecution evidence as accurate would it establish the case against the accused beyond reasonable doubt?’ Next, we can refer to the case of PP v Chin Yoke [1940], where a party state to have an prima facie case, it regards that he have an evidence that cannot be rebutted by the opposing party. The court also held that a prima facie case can be seen at the end of the prosecution case and then the accused will call to plead guilty or call for defence. If he was to be call for defence, he must answer the prima facie which has thus been made out against him. If, however, on the other hand, after weighing up such evidence for the prosecution one is satisfied that it would be wholly unsafe to convict upon such evidence standing alone. The prima facie case can only be broken by relating the element of beyond reasonable doubt. However, on the other hand if after weighing up such evidence for the prosecution, and resulting there is no prima facie case, the accused should not be called on for his defence. So this means, a prima facie case is established by sufficient evidence, and can be overthrown only rebutting evidence adduced on the other side.

(b) Dicuss the degree of proof required to establish a prima facie case.

The degree of proof or the burden of proof can be defined as a burden imposed on a party to prove fact or facts in issue. The burden of proof also sometimes referred to as the persuasive burden or the non persuasion, phrases which indicate that a party bearing the legal burden on a fact in issue will lose on that issue if the burden is not discharge to the required standard of proof. The standard of proof required to discharge the legal burden varies according to whether the burden is borne by the prosecution or defence. If the legal burden is borne by the prosecution, the standard required is proof beyond reasonable doubt. We can relate this to the case of Woolmington v DPP [1935], where Lord Viscount Sanky state that “throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what i have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by the prosecution or the prisoner, as to whether the prisoner killed the ceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial the principal that the prosecution must prove the guilt of the prisoner is part of the Common Law of England and no attempt to whittle it down can be entertained. Next, to see the degree of proof established a prima facie case, we have to refer to two landmark cases to determine the degree of proof required to establish a prima facie case, that is the case of Haw Tua Tau [1981], where this case states about the lower standard of proof that based upon the minimal evaluation of the prosecution evidence. In this case, the prosecutor had succeeded in proving the case to be a prima facie case, where this means the court had decided to call for defence. The defence have to raise the element of beyond reasonable doubt to squash the prima facie case proven by the prosecution, and if the accused remain silent, this will amount that the defence fail to raise up the element of beyond reasonable doubt, and resulting to the accused to be convicted. This also can be seen in the case of Wong Ah Mee v PP [1970], where the magistrate held that when the accused remain silent, this will amount to a conviction. The court also held that the prosecution had failed to adduced sufficient evidence which, if unrebutted, could warrant a conviction at the close of the prosecution case and that the accused should not have been called to enter. The court approved the magistrate’s action in convicting the accused after she decided to remain silent. Besides that, in the case of Haw Tua Tau, it has called the minimal evaluation of the prosecution evidence where the phrase of prima facie had been described as the court can still decide to acquit him by reviewing the evidence again and then make a conclusion that the case had depended on evidence of witnesses whose veracity accuracy and credibility had been seriously impute. So, there will be no prima facie when the fact adduced by the prosecution are inherently incredible have not established each essential element of the alleged offence. This will be followed by the call for defence and if the accused remain silent the court will convict the accused because of the failure to prove the element of reasonable doubt in the part of the defence. The situation that changed when the CPC (FMS Chapter. 6) was amended on 30 January 1997 by the CPC (Amendment) Act 1997 to provide for a prima facie standard of proof at the close of the case of the prosecution, where to determine the degree of establishing a prima facie case and the consequences of the amendment can be seen in the case of Arulpragasam v PP [1997], where this case tells about, whether the duty of the prosecution at the end of their case is to proof prima facie case or a case beyond reasonable doubt. In this case, CJ. Eusoff Chin states that it is treaty law that the onus is on the prosecution throughout the case in any criminal trial to prove the charge against the accused. Beyond reasonable doubt in my view is the same standard of proof applies at the intermediate stage of the trial i.e. at the close of the prosecution. So, this means as the requirement was maximum evaluation of evidence tendered by the prosecution, the prosecution side have to proof all the ingredients about the charge at the end of the prosecution case and then the court will determine by evaluating all the evidence and then decide, whether to call for defence or not. This also means that, in this case the element of maximum evaluation of the evidence that will tendered by the prosecution and more vigorous test of credibility was to be applied to the prosecution’s evidence, instead of the much lower Haw TuaTau standard of proof of a mere prima facie case which called for a minimal evaluation of the evidence tendered by the prosecution. We also can refer to cases such as PP v Haniff Basree Abdul Rahman [2004], that says the OKT was charged under murder, that an offence charged under Section 302 of the Penal Code. The issue whether the Public Prosecutor had made out a prima facie case can be seen where at the end of prosecutions case, the court has to decide whether the PP has succeeded in establishing prima facie case against OKT. This court is bound by the maximum evaluation of the evidence as laid down in Looi Kow Chai v PP [2003], to determine whether the evidence could be accepted as accurate to establish the essential elements of this offence facing the OKT. Besides that, the scientific evidence fell short of the standard needed in establishing a prima facie case, especially the existence of the unknown male being seemingly the last person to have been with the deceased, were laden with doubts, this evidence on its own was destructive of the PP’s case. So, in this case, the court held that PP has failed to establish a prima facie case and the accused was acquitted and discharged accordingly. The degree of proof to establish a prima facie case also can be seen in the case of PP v Ayyavoo [2004], that says, the OKT were charged with murder , an offence punishable under Section 302 read with Section 34 of the Penal Code. The PP introduced evidence through 12 witnesses to testify against the OKT with their key witness being a 76 years old man, who had identified the OKT’s as being responsible for the death of the deceased . The court agreed with the decision in PP v Saare Hama [2001] and PP v Ong Cheng Heong [1998] subjecting the evidence of PP to maximum evaluation to determine if the defence is to be called does not mean that the PP has to prove its case beyond reasonable doubt. PP had failed to establish a prima facie case against both OKT’s on the charge of murder and the identity of the persons responsible for the offences charged or any other offence on the date, time and place as framed by the PP. Accordingly, both OKT’s were acquitted and discharged without calling for their defence. Another example to be given is as relating to the case of PP v Yap Fook Choy [2004] that says the OKT was charged with trafficking in dangerous drugs under Section 39B(1) of the Dangerous Drugs Act. The OKT was found with plastic containing methamphetamine. Issue in this case whether there is a prima facie case, the court held that they are well aware that the following ingredients must be proved beyond reasonable doubt by PP, and the court agreed with the learned DPP that the OKT had physical control of the impugned drugs based on the drugs found with him. After careful examination and evaluation of the evidence in its entirely and after perusal of all authorities filed into this court, there is overwhelming evidence to show that the PP has proved its case beyond reasonable doubt and that the defence failed to raise any reasonable doubt on the PP’s case. OKT was found guilty, convicted of trafficking and death sentence was imposed.

(c) On the prima facie test, once defence is called but the Accused elects to remain silent and offers no evidence, whether appropriate for him to be convicted on the same material?

As for this question, if a defence is called but the accused elects to remain silent and offer no evidence he can be convicted on the same material. This can be related by viewing to the case of Pavone v PP [1984], Edgar Joseph Jr. (as he then was) also noted that Ragunathan v PP [1982] 1 MLJ 139, bound him in the High Court “notwithstanding the powerful dissent of Professor Ahmad Ibrahim”. According to his lordship the sole question at the close of the case of the prosecution is whether or not a prima facie case has been made out, that is to say, whether there is some evidence (not inherently incredible) which, if believed, establishes the essential elements of the offence charged. If there is such evidence, then the defence must be called but care must be taken to leave suspended the question of the veracity and accuracy of recollection of the witnesses until after the close of the case for the defence. This applies even where, as here, the defence elects to remain silent and calls no evidence. Consequently, in a proper case, there is nothing illegal in a magistrate or president calling for defence upon prima facie evidence being adduced and then proceeding to acquit and discharge even when the accused elects to remain silent and to call no evidence if not satisfied that the charge has been established by the prosecution beyond all reasonable doubt. Besides that, in the case of PP v Man bin Abbas, that states if proven that there is a prima facie case in the end of the prosecution case, there will be a call for defence, and if the accused remain silent , so he will be convicted. The court also held that situation before the case of Haw Tua Tau also should be stated where it tells that a prima facie case on those days is a prosecutor had proven his case and a call for defence had been declared to raise the reasonable doubt on the prima facie case proved by the prosecutor. If the accused remain silent, he failed to raise the reasonable doubt in the case he was charged and resulting him to a conviction. We also can refer to the case of PP v Goh Kim Looi, where in this case, the court under JC Vincent Ng state that if an accused choose to remain silent and calls no evidence, there will be an automatic conviction. Besides that, in the case of PP v Muhamad bin Zakaria [1999], the accused was charged for trafficking 9617 grams ofr cannabis under Section 39B(1) of the Dangerous Drugs Act 1952. At the end of the prosecution, the prosecutor had proved a prima facie case under Section 6 of Act. The defence was called and the accused chooses to keep silent and not tender any evidence. The court held that after taking into consideration all the evidence adduced before it was satisfied that the prosecution had proved its case beyond reasonable doubt. By keeping silent, the accused had failed to rebut the prima facie case. This failure resulted in the prosecution proving its case beyond reasonable doubt. The accused by keeping silent had saved the court’s time and as such the court would grant a discount on the sentence that was supposed to be meted out. We also can refer to the case of Wong Ah Mee v PP [1970], where the magistrate satisfied that there is a prima facie that has been proved and he called for defence. The accused choose to remain silent and he was convicted. The Court of Appeal held that, the prosecution had failed to adduce sufficient evidence which, if unrebutted, could warrant a conviction at the close of the prosecution case and that the accused should not have been called to enter her defence to remain silent. But, the court also state the decision from the magistrate in this case that if an accused chooses to remain silent and do not want to tender any evidence or defence, he will be convicted. We also can refer to the case of Tan Ah Ting v PP [1974] where it tells that J. Wan Suleiman held if the court decides an prima facie case and call for the defence. At that stage if the accused remain silent, the case will proved as no reasonable doubt raised by the defence.

(d) Whether the current legislative amendment above (section 173(f) CPC) on the prima facie standard of proof at the close of the prosecution’s have retrospective effect?

In this perspective about the current legislative amendment above Section 173(f) on the prima facie standard of proof at the close of the prosecutions have retrospective effect, the answer there is no retrospective effect that can be seen. This is because the amendment of the Criminal Code Procedure (FMS Chap. 6)(CPC) that is on 30 January 1997 by the Criminal Procedure (Amendment) Act 1997 is basically to provide the element of prima facie at the end of the prosecution case. This followed Parliment’s disagreement with the majority view of the Federal Court in Arulpragasam a/l Sandaraju v PP [1997] that the duty of the prosecution at the end of its case is to prove a case beyond reasonable doubt. To be more specific, this amendment is to clarify that the duty of the prosecution is to prove the case is beyond the reasonable doubt. We can see that there is no retrospective effect on the current legislative amendment on the prima facie standard of proof by distinguishing this two case that state the same thing. The cases are Bahruni bin Ismail [1997] and Dalip Bhagwan Singh v PP [1998], where in this cases the Federal Court held that there is no retrospective effect towards the amendment. In the case of Bahruni bin Ismail v PP, the court state that the amendment can only be enforced to cases that produced to the court after the date the amendment is enforced, and this amendment is not applicable to cases filed before the date of amendment that is in the year of 1997. This method also had been followed in the case of Dalip Bhagwan Singh v PP, where the test in the case of Arulpragasam will still apply for cases that had been filed before the amendment or the exact date before 31 January 1997. Apart from that, we also can relate the issue of retrospective effect towards amendment by viewing to the case of Surandran a/l Rajaretnam v PP [1998], where the issue is the determining of proving whether the prosecution at the end of his prosecution case have to prove a prima facie case or the element of beyond reasonable doubt. So, the court in this case held that, to all intents and purposes, the standard of proof to be applied in all cases whether before or after Arulpragasan’s decision, must necessarily be beyond reasonable doubt. The same procedure also applies in the case of Harun bin Abdullah v PP [1998], where the same issue had been arrised whether a prosecution at the end of the trial have to proof a prima facie element or the concept of the beyond reasonable doubt. The court held that the decision in the case of Arulpragasan had stated clearly that the standard of proof needed at the end of the prosecution case is beyond reasonable doubt, similar to the stated amendment to Section 180 of the Criminal Procredure Code to provide for prima facie standard of proof at the close of the case for the prosecution took effect only after 31 January 1997 and there is nothing in the amendment to give it retrospective effect. This means that the said current legislative amendment above (section 173(f) of the Criminal Procedure Code on the prima facie standard of proof at the close of the prosecution’s does not have a retrospective effect because if it given the chance to run retrospectively, it will make an act cannot evidentially be proved at any time to have been committed beyond a reasonable doubt at the prosecution’s case, the perpetrator of the act or omission would not be called for his defence and therefore would not be punishable any more. But if the act or omission in question not punishable in the way stated above can be proved by way of a prima facie case at the close of the prosecution case, that means a much lesser burden of proof, then the said perpetrator will have his defence called. So, it is clear that at the end of the prosecution case, had to be proved beyond reasonable doubt.

Conclusion

As for the conclusion, prima facie is a sufficient element to establish a fact or raise a presumption unless disproved or rebutted or in other words the establishment of a legally required rebuttable presumption and it will arise at the end of the prosecution case where there will be a determination whether a prima facie case has been made out. Besides that, the degree of proof to establish a prima facie case is the way of discharging legal burden according to whether the burden is borne by the prosecution or defence. If the legal burden is borne by the prosecution, the standard required is proof beyond reasonable doubt and if it is borne by the defence, so they have to prove reasonable doubts to squash the prima facie proven by the prosecutor. Next, current legislative amendment above (section 173(f) CPC) on the prima facie standard of proof at the close of the prosecution’s does not have the retrospective effect due to the standard of proof to be applied in all cases whether before or after Arulpragasan’s decision, must necessarily be beyond reasonable doubt.