APRIL 11 — The High Court yesterday agreed to a request by Deputy Prime Minister Datuk Seri Ahmad Zahid Hamid to postpone his Yayasan Akalbudi corruption trial involving funds over RM31 million to August.
Zahid, who is also Umno president and Barisan Nasional chairman, is facing 47 charges.
The 47 charges are, namely: 12 counts of criminal breach of trust in relation to over RM31 million of charitable foundation Yayasan Akalbudi’s funds; 27 counts of money-laundering; and 8 counts of bribery charges over RM21.25 million in alleged bribes.
On January 24, 2022, the High Court had ordered Zahid to enter his defence on all 47 charges, after having previously heard evidence from 99 prosecution witnesses.
When Zahid is ordered to enter his defence, it means the prosecution has made out a prima facie case against him. The law is contained in section 180 of the Criminal Procedure Code (CPC), which provides for the procedure after conclusion of the case for the prosecution as follows:
(1) When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused.
(2) If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal.
(3) 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) For the purpose of this section, 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.
The law is settled and now well-entrenched. A “prima facie” case is one that is sufficient for the accused to be called upon to answer. This in turn means that the evidence adduced must be such that it can only be overthrown by evidence in rebuttal.
The force of the evidence adduced by the prosecution is such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts exist or did happen.
In order to make such a finding the court must, at the close of the case for the prosecution, undertake a positive evaluation of the credibility and reliability of all the evidence adduced so as to determine whether the elements of the offence have been established. (Balachandran v PP [2005])
To put it in another way, the court must:
(i) subject the evidence led by the prosecution in its totality to a maximum evaluation;
(ii) carefully scrutinise the credibility of each of the prosecution’s witnesses;
(iii) take into account all reasonable inferences that may be drawn from that evidence. If the evidence admits of two or more inferences, then draw the inference that is most favourable to the accused;
(iv) ask the question: If the accused is called to make his defence and he elects to remain silent, is the court prepared to convict him? If the answer to that question is ‘Yes’, then a prima facie case has been made out and the defence should be called. If the answer is ‘No’ then, a prima facie case has not been made out and the accused should be acquitted. (PP v Mohd Radzi Abu Bakar [2006])
When the trial judge is prepared to convict the accused on the totality of the evidence contained in the prosecution’s case, if the accused elects to remain, why the need to further investigate the case against the accused?
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
