White Mevius Cigarettes – 2 boxes x 50 cartons x 10 packets x 20 sticks and this violated the Customs Order (Prohibition of Import) 2017. The items were covered with a piece of black cloth. [9] Further, the Respondent failed to produce any documents to show that the items have been approved by the Customs Department. PW6 then directed the team to arrest the Respondent, seized the October 28, 2021 5 items and bring them back to the Customs Department office in Batu Pahat. [10] The vehicle could not be ignited except by the Respondent and only the Respondent could do so upon the directive by PW5 to allow PW5 to bring back the seized items back to the office. [11] PW7, the Investigating Officer made an application to have the items analysed and the analyst report states that these are contraband items as they do not fulfil the conditions required by Malaysian Laws such as Health Warning, information on contents and there must be duty stamps to show that the duties have been paid. THE ISSUES IN THIS APPEAL [12] There is only one issue in this appeal which is Whether the prosecution succeeded in proving a prima facie case against the Respondent. [13] It is in evidence of the following: a. The respondent drove the MPV Vehicle Toyota Alphard with the registration number JTF 8034. b. No one else was with the Respondent in the said vehicle as observed by PW4 and PW5. c. Only the Respondent has control of the said vehicle and only he can ignite the vehicle. October 28, 2021 6 d. When the Respondent was directed to go to the vehicle by PW6, he asked PW6 if he could settle this outside by saying “minta settle” (“could we settle this and could you let me go?”). e. No one open the vehicle before the Respondent alighted from the vehicle and this was observed by PW4 and PW5. f. The vehicle contained the prohibited / contraband items which are White Canyon Signature Menthol Cigarettes – 8 boxes x 50 cartons x 10 packets x 20 sticks, White Canyon Signature Menthol Cigarettes (Red) – 15 boxes x 50 cartons x 10 packets x 20 sticks, White Canyon Yellow Cigarettes – 2 boxes x 50 cartons x 10 packets x 20 sticks , White Mevius Cigarettes – 2 boxes x 50 cartons x 10 packets x 20 sticks. g. These items were prohibited items and custom duties were NOT paid. [14] The Learned Magistrate has correctly identified the ingredients of the offence and found that there is a reasonable doubt on whether the Respondent has possession of the contraband / uncustomed goods. However, it was the finding of the Learned Magistrate that the goods were uncustomed / contraband and hence the Order for forfeiture notwithstanding the failure of the prosecution to prove a prima facie case against the Respondent. [15] It must be put on record that on the evidence, the Respondent was unable to provide any documents to show approval by the October 28, 2021 7 Customs Department and show that the goods did not violate the Customs Act. [16] Hence, the main issue left to be scrutinised was whether the Respondent had possession of the prohibited goods. [17] In DIRECTOR OF PUBLIC PROSECUTIONS v. WISHART BROOKS [1974] AC 862. In that case, a number of police officers saw a van with its engine running was parked on a lay-by near an airstrip. [18] On being approached by the police officers, the respondent, who was the driver, and others who were in the cab of the van attempted to run away. The respondent was caught by the police. In the body of the van, which was neither visible nor accessible from the cab, were 19 sacks containing over 1,000 pounds of ganja. The respondent's conviction was quashed by the Jamaican Court of Appeal on the ground that it was not shown that he had more than mere custody or charge of the van and its contents and that there was no evidence that he had possession of the ganja. The Privy Council, in allowing the appeal, held that the technical doctrines of the civil law about possession were irrelevant to this field of criminal law and added at pp 866-867:- In the ordinary use of the word ‘possession’, one has in one’s possession whatever is, to one's own knowledge, physically in one’s custody or under one’s physical control. This is obviously what was intended to be prohibited in the case of dangerous drugs. Question (1) and the reason given for the answer, however, suggest that, in addition to the mental element of knowledge on the part of the accused, which the Court of Appeal had chosen to October 28, 2021 8 deal with separately in questions (2) and (3), the word ‘possession’ imported into this criminal statute as a necessary ingredient of an offence against public health the highly technical doctrines of the civil law about physical custody without ownership as a source of legal rights in the actual custodian against third parties and about the legal relationships between owner and custodian which bring about the separation of propriety and possessory rights in chattels. If this is the implication to be drawn from this part of the judgment in Reg v. Livingston [1952] 6 JLR 95 it is, in their Lordship’s view, wrong. These technical doctrines of the civil law about possession are irrelevant to this field of criminal law. The only actus reus required to constitute an offence under s. 7(c) is that the dangerous drug should be physically in the custody or under the control of the accused. The mens rea by which the actus reus must be accompanied is the kind of knowledge on the part of the accused that is postulated in questions (2) and (3). Upon the evidence, including his own statement to the police, the 19 sacks of ganja were clearly in the physical custody of the respondent and under his physical control. The only remaining issue was whether the inference should be drawn that the respondent knew that his load consisted of ganja. Upon all the evidence and in particular the fact that he and other occupants of the van attempted to run away as soon as they saw the uniformed police approaching the magistrate was, in their Lordships’ view, fully entitled to draw the inference that the defendant knew what he was carrying in the van. [19] This issue was also explained in LEOW NGHEE LIM v. REGINA [1955] 1 LNS 53; [1956] 1 MLJ 28, where the facts were that the Police, apparently acting on information received, raided a coffee shop and in a drawer of the counter found a cigarette tin containing nine small packets of prepared opium; they arrested the October 28, 2021 9 shopkeeper. They did not find any pipe or other gear. The drawer was not locked; it contained about 15 small books, in which sales to credit customers were entered, and other articles indicating that the shopkeeper and his assistants all had access to the drawer and in fact used it. The shopkeeper was convicted of possession of the opium. The defence at the trial was that the facts did not show that the accused had possession of the opium because he used the drawer jointly with others. His Lordship Justice Taylor has this to say, inter alia, The word “possession” is one of the most difficult of English words. It is derived from “posse” to be able and “sedere” to sit or occupy. The fundamental concept is power of occupation; primarily this referred to land and later the meaning was extended to power of user of a chattel. The primary lay meaning of possess is to hold as property, to own. The primary legal meaning of possess is to have possession, as distinct from ownership. This is well illustrated by the popular phrase for a sheriff's agent, “A man in possession,” who really has only custody. Shakespeare more accurately called him a bum bailiff. In this Ordinance custody is distinguished, and I think “possession” means possession irrespective of whether the possessor is the beneficial owner. Probably the most helpful definition of possession is:- “The relation of a person to a thing over which he may at his pleasure exercise such control as the character of the thing admits, to the exclusion of other persons.” This definition does not express, but it does imply that the meaning of the word includes some element of knowledge. A man must know of the existence of a chattel and have some idea of its whereabouts before he can exercise any control over it. October 28, 2021 10 The word possession therefore implies some knowledge but not necessarily full or exact knowledge. The patriarch Benjamin, Genesis 44, was clearly in possession of his sack of corn but he was not, in truth, in possession of the silver cup which had been “planted” in it, entirely without his knowledge. The prisoner Sleep [1861] 8 Cox, CC 472; Le & Ca 44 had a mixed lot of copper bolts, some of which bore the Queen's mark. He knew he had copper bolts and therefore he was in possession of the whole lot. The question was whether he knew that some of them were so marked. How much a man knows about things in, or apparently in, his possession is a matter of fact, to be inferred from all the circumstances. In some of the cases it has been said that without knowledge there can be no possession. In others, “in possession” has been read as “knowingly in possession” by application of the doctrine of mens rea. In some instances, either view leads to the same result but not in all. The dicta do not make clear what degree of knowledge is meant. Also, in some of the statutes, “possession” and “knowledge” have been treated separately and much confusion has resulted. The word “possession” is a vague and general word which cannot be closely defined. Without at least general knowledge there cannot be possession but there can be possession without full and exact knowledge. This is recognised in the present Drugs Ordinance which provides, by the presumption already cited, that if a man has custody or control of a drug the onus of proving, first that he did not have possession, and secondly that he did not know the nature of the drug, shall be shifted to him. The Ordinance deals both with opium and with other drugs. Possession of opium is prohibited absolutely. Possession of drugs in general is not prohibited absolutely because many drugs are familiar household articles; it is only dangerous drugs which are prohibited. The special presumption as to knowing the nature October 28, 2021 11 will therefore seldom apply to opium; it will more frequently apply to other drugs. A man might know that he had a white powder, and therefore be in possession of a drug, but he might not know whether it was bicarbonate, a common household drug, or heroin, a dangerous drug of similar appearance. Such a case would resemble that of Sleep [1861] 8 Cox, CC 472; Le & Ca 44 supra. The distinction is not applicable in the present case but is mentioned here because Counsel argued that the word “possession” is used in different senses in the Ordinance. I do not think that is so. I think the word possession is used consistently in the Ordinance in its ordinary, but imprecise, sense. It has also been said that intention to exercise the power of disposal is a necessary element of possession. This cannot be supported is part of a general definition. A woman is undoubtedly in possession of her wedding ring but as a rule she does not intend to dispose of it; many are buried wearing it. But she can pawn it, in case of need. Similarly with guilty possession. In general a thief intends to dispose of his loot but the rich collector who filched a rare stamp and the crazy artist who took the Mona Lisa, in order to gloat over them in private, were equally thieves. Intention is a separate matter. The dictionary definition brings in the idea of exclusiveness. It is often said that “possession must be exclusive.” This is ambiguous. Possession need not be exclusive to the accused. Two or more persons may be in joint possession of chattels, whether innocent or contraband. The exclusive element of possession means that the possessor or possessors have the power to exclude other persons from enjoyment of the property. [20] His Lordship Justice Taylor succinctly puts it that “In some of the cases it has been said that without knowledge there can be no possession. In others, “in possession” has been read as October 28, 2021 12 “knowingly in possession” by application of the doctrine of mens rea. In some instances, either view leads to the same result but not in all. The dicta do not make clear what degree of knowledge is meant. Also, in some of the statutes, “possession” and “knowledge” have been treated separately and much confusion has resulted.” [21] In LEOW NGHEE LIM v. REGINA (supra), it must be noted that the shop is open to anyone. Anyone could enter the show and open the drawers where the impugned items were found. Of course, the Appellant would not normally be allowed to do so unless they are his workers or trusted persons. Nonetheless, the knowledge of where the impugned items were along with no one would normally try and open the drawers, is what his Lordship meant by power to deal with and disposed off (if need be) of the impugned items. [22] As his Lordship so succinctly puts it “A woman is undoubtedly in possession of her wedding ring but as a rule she does not intend to dispose of it; many are buried wearing it. But she can pawn it, in case of need. Similarly, with guilty possession. In general, a thief intends to dispose of his loot but the rich collector who filched a rare stamp and the crazy artist who took the Mona Lisa, in order to gloat over them in private, were equally thieves. Intention is a separate matter.” [23] Therefore, it is a misnomer to say “exclusive possession”. [24] It is often said that “possession must be exclusive”. This is ambiguous. Possession need not be exclusive to the accused. October 28, 2021 13 Two or more persons may be in joint possession of chattels, whether innocent or contraband. The exclusive element of possession means that the possessor or possessors have the power to exclude other persons from enjoyment of the property. [25] Possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody (HE KAW THE v. THE QUEEN [1985] HCA 43; [1985] 157 CLR 523 at 537-9, 546, 585-7, 599-600). The physical control or custody may be shared, but must be control or custody to the exclusion of other persons or persons other than those with whom it is shared (R v. DIB [1991] 52 A Crim R 64 at 66-7). [26] It is not enough, however that you are one of a number of persons with access to the thing to the exclusion of other persons - that does not constitute your physical control or custody of the thing or physical control or custody shared with the others of the number of persons. So in R v. FILIPETTI [1984] 13 A Crim R 335 finding drugs in the lounge room of a house occupied by six persons, to which all six had access, did not establish physical control or custody of the drugs by one of the occupants, because any physical control or custody of the one occupant was not to the exclusion of the other occupants and shared physical control or custody could not be inferred; The issue of joint possession is another case. If all of them had possession of the drugs in the lounge room, they are said to be having joint possession. This is particularly important in cases of drugs laboratory. [27] Coming back to the issue of possession, I seek guidance from the locus classicus case of CHAN PEAN LEON v. PUBLIC October 28, 2021 14 PROSECUTOR [1956] 1 LNS 17; [1956] 1 MLJ 237, Justice Thompson (later Lord President) has this to say, inter alia, If the thing, as in Toh’s case, is in a box which itself is in the possession of the accused it must be proved that he knew what was in the box. If, as in Lee's case, it was a lottery document it must be proved that he knew it was a lottery document. Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again the possible variety of circumstances which will support such an inference is infinite. There may be something in the accused's behaviour that shows knowledge, or the nature of the thing may be so obvious that it is possible to say “he must have known what it was” or, again in cases under the Dangerous Drugs Ordinance, there may be a statutory presumption which fills a gap in the evidence. [28] Borrowing the words of his Lordship Justice Thomson “If a watch is in my pocket then in the absence of anything else the inference will be clear that I intend to deal with it as if it were my own and accordingly I am in possession of it. On the other hand, if it is lying on a table in a room in which I am but which is also frequently used by other people then the mere fact that I am in physical proximity to it does not give rise to the inference that I intend to deal with it as if it belonged to me. There must be some evidence that I am doing or having done something with it that shews such an intention. Or it must be clear that the circumstances in which it is found shew such an intention. It may be found in a locked room to which I hold the key or it may be found in a drawer mixed up with my own belongings or it may be found, as occurred in a recent case, in a box under my bed. The possible circumstances cannot be October 28, 2021 15 set out exhaustively and it is impossible to lay down any general rule on the point. But there must be something in the evidence to satisfy the Court that the person who is physically in a position to deal with the thing as his own had the intention of doing so. It is true that in prosecutions under the Dangerous Drugs Ordinance a lack of evidence in this connection may be made good by the statutory presumptions contained in that Ordinance. But there are no such presumptions in the Common Gaming Houses Ordinance nor are there any such presumptions in relation to possession of stolen property.” [29] This is the principle of law enunciated in WARNER v. METROPOLITAN POLICE COMMISSIONER [1969] 2 AC 256, that if a lady placed her hand bag on the front passenger seat of the car she is driving, she is said to be in possession of the said hand bag. On that score she is also in possession of the contents of the hand bag. Lord Wilberforce said: ‘Ideally, a possessor of a thing has complete physical control over it, he has knowledge of its existence, its situation and its qualities: he has received it from a person who intends to confer possession of it and he has himself the intention to possess it exclusively of others. But these elements are seldom all present in situation with which the court have to deal, and where one or more of them is lacking, or incompletely present, it has to be decided whether the given approximation is such that possession may be held sufficiently established to satisfy the relevant rule of law. As it is put by Pollock and Wright, possession: is defined by modes of events in which it commences or ceases and by legal incidents attached to it’. October 28, 2021 16 [30] Lord Guest defined the possession by citing the Dictionary of English Law and stated that: ‘Possession, the visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world, or against all the world exception of doing so, either against all the world, or against all the world except certain persons. There are therefore, three requisites of possession. First, there must be actual or potential physical control, secondly physical control is not possession, unless accompanied by intention, hence, if a thing is put into a hand of a sleeping person, he had not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed’. [31] If assuming for the sake the arguments that the Respondent was only driving the vehicles, he would claim wilful blindness. The concept of ‘wilful blindness’ had been discussed in a number of local cases but it seems to have had its genesis in the dissenting judgment of Chief Justice Yong Pung How of Singapore in the case of PUBLIC PROSECUTOR v. HLA WIN [1995] 2 SLR 424. [32] The doctrine of ‘wilful blindness’ can be summarised to be applicable to a situation where the circumstances are such as to raise suspicion sufficient for a reasonable person to be put on inquiry as to the legitimacy of a particular transaction. [33] To put it another way, if the circumstances are such as to arouse suspicion, then it is incumbent on a person to make the necessary inquiries in order to satisfy himself as to the genuineness of what October 28, 2021 17 was informed to him. Should he fail to embark upon this course of action, then he will be guilty of ‘wilful blindness’. [34] In other words, he is then taken to know the true situation. He then cannot be said to have either rebutted the presumption of knowledge or have raised a reasonable doubt as to his knowledge of the situation. Most of the cases where the concept was held to apply concerned cases in which the accused was asked to carry certain articles, or a package, or a bag, or to swallow certain items. [35] In these circumstances, where the request to do any of those things mentioned would be such as would arouse the suspicion of a reasonable person as to the contents, it was upon the accused to make sufficient inquiries so as to dispel or to set straight such suspicions. Should the accused not make any or any sufficient inquiries under those circumstances, the concept of wilful blindness would apply so as to fasten upon him or her the necessary knowledge as to the nature of those contents. In other words, if he deliberately ‘shuts his eyes’ to the obvious, because he ‘doesn’t want to know’, he is taken to know. (see PP v. HERLINA PURNAMA SARI [2016] 1 LNS 1855). [36] One disturbing point which I have seen the evidence is that when PW6 asked the Respondent to take the team (PW6 included) to the said vehicle, the Respondent said “minta settle”. It is a colloquial for could you let me go, very often for a bribe. [37] In PP v. MUHAMMAD KHAIRUANUAR BAHARUDDIN [2021] 1 LNS 510, the accused was charged for the murder of one PW3 was of the view that the injuries sustained by the deceased was October 28, 2021 18 due to suspected child abuse. This is consistent with the evidence of PW7 who said that she noticed bruises on the deceased when she was in the care of the accused. Other relevant conduct on the part of the accused is the evidence of PW7 that the accused objected to the conduct of a post-mortem on the deceased and had requested PW7 to prevail upon her doctor friend to influence and change the result of the post-mortem. His Lordship Justice Collin Sequerah held that [117] The above conduct of the accused, in bringing the deceased through the back door of the clinic and insisting that PW3 issue a death certificate, constitutes relevant conduct within the meaning of section 8 of the Evidence Act 1950 ("EA"). [118] It entitled the court to make an inference that the accused firstly, did not want to attract too much attention when he brought the deceased through the back door of the clinic and secondly, that he wanted to avoid a post mortem by insisting upon a death certificate from PW3 so he could hasten the burial process. See also PARLAN BIN DADEH [2009] 1 CLJ 717. [119] It is also of significance that PW3 was of the view that the injuries sustained by the deceased was due to suspected child abuse. This is consistent with the evidence of PW7 who said that she noticed bruises on the deceased when she was in the care of the accused. Other relevant conduct on the part of the accused is the evidence of PW7 that the accused objected to the conduct of a post-mortem on the deceased and had requested PW7 to prevail upon her doctor friend to influence and change the result of the post-mortem. [120] PW7 also testified that the accused told a pathologist by the name of Dr. Faten (not PW12) to only conduct the post-mortem on October 28, 2021 19 the chest as the reason for the death was due to breathlessness "sesak nafas" and that it was not necessary to open up the other parts of the body. [38] In PARLAN DADEH v. PP [2009] 1 CLJ 717, the facts were that acting on information received relating to the trafficking of drugs, a team of police personnel had observed the appellant in a restaurant before arresting him. When the police identified themselves, the appellant looked shocked or stunned. A search of his person was conducted and a black plastic bag was found tucked away in the front of the jeans worn by him. Inside the black plastic bag was a transparent plastic bag containing 436.2 grams of cannabis or ganja. The appellant was charged for trafficking in the said drugs. At the trial, the appellant claimed that the drugs were never found on the appellant's person as alleged by the prosecution. It was suggested that the drugs belonged to an Indian male called Bob who was in the restaurant at that time. It was also suggested that the drugs had actually been recovered from a chair next to where Bob had sat. At the close of the prosecution case the trial judge called upon the appellant to enter his defence having invoked the presumption of trafficking in s. 37(da) of the Dangerous Drugs Act 1952. The High Court found that the person called Bob did not exist at all and was a creation of the defence. The judge found that the case against the appellant had been proved beyond reasonable doubt and, accordingly, convicted him of trafficking in the said drugs and imposed the death sentence. The appellant appealed against the conviction and sentence. The Court of Appeal upheld the conviction and sentence. The appellant further appealed on, inter alia, the following issues: (i) that the Court of Appeal had erred in not holding that the prosecution had not proved mens rea possession of the drugs; had erred in not October 28, 2021 20 holding that there was no evidence of knowledge of the nature of the drugs by the appellant and had thereby misdirected itself in not following its previous decision in Toh Su Kuan v. PP; and (ii) The Court of Appeal held that the conduct of the appellant in being stunned or shocked when PW4 identified himself to him as a police officer was certainly relevant when judged against the circumstances of the case. However, the court agreed that the reaction of the appellant in itself would be insufficient to draw the inference of mens rea possession. Counsel argued that the conduct of the appellant should not be held against him as even an innocent man can be shocked or stunned in such circumstances. It was held by the Federal Court that “[36] The law relating to evidence of conduct is thus patent. If there is no evidence to show that the conduct is influenced by any fact in issue or relevant fact as required by s. 8 then it is not admissible as it would then be an equivocal act justifying inferences favourable to the accused being drawn. If it satisfies the requirement of s. 8 it is admissible. It must be observed that the degree of proof required to establish evidence of conduct would depend on the nature of the conduct. Conduct like the flight of an accused is a more positive act and is easily established. On the other hand conduct like the accused looking stunned, nervous, scared or frightened is very often a matter of perception and more detailed evidence may be required. Once admitted the court cannot resort to any other explanation for the conduct or draw inferences on its own accord to render it inadmissible. The onus is on the accused to explain his conduct pursuant to s. 9. Such explanation must not be in their barest possible form, but with a reasonable fullness of detail and circumstance (see R V. STEPHENSON [1904] 68 JP 524). The onus may be discharged even in the course of the case for the prosecution, for example, by way of cross-examination of relevant witnesses. If not so done it October 28, 2021 21 can be discharged only at the defence stage. However, the evidence admissible under the section must be confined to what is necessary for the purposes enumerated. Illustration (c) to s. explains the operation of this principle. It provides that when A is accused of a crime the fact that soon after the commission of the crime he absconded from his house is relevant. But the fact that at the time when he left home he had sudden and urgent business at the place to which he went, is relevant, as tending to explain the fact that he left home suddenly. The details of the business on which he left, however, are not relevant, except in so far as they are necessary to show that the business was sudden and urgent. If the explanation is accepted by the court then the inference arising from the conduct is rebutted. If it is not accepted or if the accused does not explain his conduct the inference remains unrebutted. [39] I am guided by the judgment which said “On the other hand conduct like the accused looking stunned, nervous, scared or frightened is very often a matter of perception and more detailed evidence may be required. Once admitted the court cannot resort to any other explanation for the conduct or draw inferences on its own accord to render it inadmissible. The onus is on the accused to explain his conduct pursuant to s. 9. Such explanation must not be in their barest possible form, but with a reasonable fullness of detail and circumstance” [40] Having analysed the conduct of the Respondent that “he wish to settle”: (minta settle), it must be understood that later when a search was done on the vehicle, uncustomed / contraband items were found. This must be taken in context that the request came when PW6 identified himself as a customs officer, and the Respondent was asked to lead the raiding party to the vehicle, the October 28, 2021 22 care keys were with the Respondent, no one was with the Respondent in the car at all times and more importantly no one open the car and put something in. [41] In our instant case, if for the sake of the arguments we assume that the Respondent did not meant the bribe part, the inference that can be drawn is the Respondent knew he had some contraband or illicit items with him. He is asking for mercy to PW6 to let me go. This would have been totally unnecessary if the Respondent had no guilty conscience and hence need not worry. He could just lead the team (and PW6) and showed that he has nothing to hide or worry about. This conduct is relevant because of the items seized later were found to be contraband / uncustomed, and the Evidence Law allows us to scrutinised the conduct in relation to the items found in the car which keys were held by the Respondent in person. [42] For the above reasons, it is the ruling of this Court that the Respondent has control and knowledge of the prohibited items. In short he has mens rea possession of the prohibited items. CONCLUSION [43] In BALACHANDRAN v. PP [2005] 1 CLJ 85, the Federal Court discussed the issue of prima facie case and has this to say, A prima facie case is therefore 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 be overthrown only by evidence in rebuttal. The phrase “prima facie case” is defined in October 28, 2021 23 similar terms in Mozley and Whiteley's Law Dictionary, 11th edn as: A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side. The result is that the force of the evidence adduced must be 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. On the other hand if a prima facie case has not been made out it means that there is no material evidence which can be believed in the sense as described earlier. In order to make a finding either way 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. [44] I ask myself the question that with the evidence available and taking into account the challenge by the Defence during cross examination as well as comparing the evidence of both documentary, physical as well as viva voce, am I ready to convict the Respondent if he chose to remain silent. [45] I have made a maximum evaluation of the evidence and my answer to the above question is a “yes”. October 28, 2021 24 [46] For the reasons aforesaid, I find that the prosecution has succeeded in proving a prima facie case against the Respondent. I ordered the Respondent to enter his defence and I remit back the case to the Magistrates’ court to have the defence heard. [47] For the sake of completion and in compliance with section 173 (ha) Criminal Procedure Code, I wish to inform the Respondent that he has 3 choices which are :