Right of the Accused to Defence under the Malaysian Criminal Justice System

Right of the Accused to Defence under the Malaysian Criminal Justice System

In Malaysia, the accused’s right to defence is protected and explained in several legal provisions.

The starting point of this discussion is by referring to Article 5(1) of the Federal Constitution, which

guarantees the right of a person to not be deprived of his life or liberty save in accordance with the

law. That is to say, even if a person has been accused of committing the crime of murder, he cannot

be punished straightaway without being subjected to legal process. The accused must go through the

criminal trial process which has been prescribed in the CPC. One of the rights availed to the accused

during the criminal trial process is the right to raise a relevant defence against the offence charged.

The right of the accused to raise the defence in a criminal trial is of great importance, and should be

raise a defence in court, this right infers that an accused can be defended by his lawyer through the

plea of any relevant defence or to make an application for plea bargaining or representation.

Also, such right is consistent with Article 8 of the Federal Constitution, which states

that: “… all persons are equal before the law and entitled to the equal protection of the law

respectively.” This means that not only does the law provide the power to the Public Prosecutor

to conduct prosecutions and submit relevant evidence to prove the case against the accused, but

at the same time legal protection should also be given to the accused, allowing him to defend

himself effectively from the charge directed towards him. Therefore, the accused should be

treated equally before the law and accorded with legal protection in a criminal trial process. This

can be seen in Krishnan v. Public Prosecutor [1987] 1 MLJ 292 where the Supreme Court

This right is also further detailed in the CPC. The gist of Article 5(3) of the Federal Constitution is

reaffirmed by section 255 of the CPC, which states: “Subject to any express provision of law to the

contrary, every person accused before any criminal Court may of right be defended by an

advocate.” Moreover, the CPC stresses the right of the accused to defend himself once the Public

Prosecutor has proven a prima facie case against him. Section 173(h)(i) of the CPC says that: “If the

Court finds that a prima facie case has been made out against the accused on the offence

charged, the Court shall call upon the accused to enter on his defence.”

4.3 Criminal Trial Process

It is important to briefly go over the criminal trial process in Malaysia to better understand how

criminal defence works. The Malaysian judiciary is based on the common law tradition and

accused person, and the accused will be allowed to defend the allegation against him. The

criminal trial is a contest between the state, which is represented by the Public Prosecutor and

the accused. This implies that there are two levels of a criminal trial, which are the prosecution

and the defence stages. At the prosecution stage, the burden of proof is placed on the

prosecution to prove its case against the accused. This is embedded in section 101 of the

Evidence Act 1950. This principle was applied in Mat v. Public Prosecutor [1963] 1 MLJ 263,

where the Court emphasised that the burden of proof of the accused lies with the Public

Prosecutor. The power to prosecute is exclusively vested in the Public Prosecutor as provided

for in Article 145 (3) of the Federal Constitution, and reiterated in section 376 (1) of the CPC,

where it reads: “The Attorney General shall be the Public Prosecutor and shall have the control

case against the accused. This is stated in section 173(h)(i), where it connotes that: “If the Court

finds that a prima facie case has been made out against the accused on the offence charged, the

Court shall call upon the accused to enter on his defence.”

The meaning of For the purpose of subparagraphs (i) and (ii), a prima facie case is made out against the

accused where the prosecution has adduced credible evidence proving each ingredient of the offence, which if

unrebutted or unexplained, would warrant a conviction.

Prima facie means that all the elements or ingredients of the offence have been proven from the

credible evidence given by the prosecution witnesses and relevant documents tendered by the

prosecution. When all the elements of the offence have been proven, then the offence against the

accused has been established. The words “… unrebutted or unexplained would warrant a

Federal Court’s case of Ahmad Najib Aris v. Public Prosecutor [2009] 2 CLJ 800where in this case,

after considering the evidence adduced by the prosecution, the High Court found that the

prosecution had made out a prima facie case of rape and murder against the appellant, and called

upon him to enter upon his defence. However, the appellant chose to remain silent. Upon the

appellant choosing to remain silent, the trial judge convicted the appellant on the two charges made

against him and passed sentence accordingly. On this point, the Federal Court affirmed the High

Court’s decision and elaborated as follows:

no other choice but to convict the appellant on both charges as the appellant had failed to

rebut the evidence adduced by prosecution’s witnesses (p. 836).

It means that the appellant’s failure to give evidence to raise defence or rebut the prosecution’s

accused” (p. 422). The standard of proof to prove the defence can be seen from the case of Goh

Yoke v. Public Prosecutor [1970] 1 MLJ 63, where the Federal Court held that the standard of

proof required from the accused person is similar to the burden which rests upon parties in civil

proceedings, which is on a balance of probabilities. The same principle was also applied the

Court of Appeal’s case of Syahmie Hassan v. Public Prosecutor [2017] 1 LNS 1074. There is

no mathematical formula given in the CPC to measure the standard of on a balance of

probabilities. Reference to the case of Miller v. Minister of Pensions [1947] 2 ALL ER, is

important, where Lord Denning explained the meaning of a balance of probabilities as the

following:

It must carry a reasonable degree of probability, but not so high as is required in a

accused to prove his defence, it does not relieve the prosecution of its duty from cross-

examining the accused with a view to challenging the truth of his defence. Hence, throughout a

criminal trial (prosecution + defence), the burden of proving the guilt of the accused rests on the

prosecution to have effectively cross-examined DW2 would amount to an acceptance of her

testimony” (p. 635).

According to section 173 (m)(i) of the CPC, the court shall then consider all the evidence

adduced before it by both the prosecution and defence, and shall decide whether or not the

prosecution has proven its case beyond a reasonable doubt. Under section 173 (m)(ii) to (iii) of the

CPC, if the court finds that the prosecution has proven its case beyond reasonable doubt, the court

shall find the accused guilty, and upon conviction the court shall pass sentence according to law. If

the court finds otherwise, the court shall record an order of acquittal.

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