What is Prima Facie? (And Why Is It Confusing in Malaysia)

If you are reading this, you might be familiar with the term "prima facie", or you've probably seen it from news reports or viral tweets at least. So, what does it mean? Can one use it to cast a magic spell? 🤭

For starters, the Cambridge and Oxford's online dictionaries define the term as such:

prima facie

adjective [before noun] · LAW · formal or specialized

at first sight (= based on what seems to be the truth when first seen or heard)

Cambridge Dictionary

prima facie

adjective · [only before noun] (from Latin, law)

​based on what at first seems to be true, although it may be proved false later

Oxford Advance Learner's Dictionary

The term literally translates from Latin to mean "first face", think: on the first impression, probably, apparently, presumably. Pretty simple, right?

Civil Prima Facie

In civil suits, courts are sometimes required to determine the existence of a prima facie case or cause of action, for certain cases (e.g. striking out a claim).

To do so, the courts have determined that it does not necessarily mean that every element of the case need be proven.

The question for the court to consider is simply whether there is a serious dispute between the litigants which warrants a trial, to determine the truth of the combating allegations. If so, then there is a prima facie case or cause of action.

This gels well with the ordinary definition of "prima facie" as stated above, but things get a little more complicated when in the context of criminal trials.

Criminal "Prima Facie"

In criminal prosecutions, the prosecution must establish a prima facie case before a case proceeds to full trial, where the accused person will be called upon to defend him/herself.

Before 1997, there was some debate as to the standard of proof required to establish a prima facie case. The discourse was sparked by a court decision holding that a prima facie case should be established through a simple question of whether the prosecution's evidence is reasonably credible at first sight (i.e. a minimum evaluation of evidence). [1]

The debate ended when section 180(4) was added to the Criminal Procedure Code, based on a contrasting court decision on the standard to prove a prima facie case. [2] The section reads:

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.

This arguably raises the prima facie standard to one that does not conform with the ordinary meaning of the term. How so?

It's complicated.

Simply put, instead of "the accused is probably guilty", the criminal prima facie standard is now as good as "the accused is guilty beyond a doubt" since a conviction can only be warranted when an accused person's guilt is beyond reasonable doubt (i.e. after a maximum evaluation of evidence).

So, there appears to be a lack of uniformity in the usage of "prima facie" in Malaysia, but the story does not end here.

Read our next article, Is There a Right to Silence in Malaysia?, to find the implications of this special "prima facie" definition.

[1] Haw Tua Tau v Public Prosecutor [1981] 2 MLJ 49

[2] Khoo Hi Chiang v Public Prosecutor and Another Appeal [1994] 1 MLJ 265