Getting Sued Costs You Money. Getting Charged Can Cost You Your Liberty. The Same Act Can Do Both.

Malaysians use "sue" and "charge" interchangeably. They are entirely different proceedings.

And the crucial point: the same conduct can produce both. If a case involves civil and criminal elements, they can proceed simultaneously but in separate courts, each applying its own standard.

The burden of proof — who has to prove what

The governing principle is "he who asserts must prove", found in ss.101 and 102 of the Evidence Act 1950.

Section 101: > "(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

So in both types of case, the person bringing it carries the burden — the Prosecution in criminal proceedings, the Plaintiff in civil ones.

What differs is the height of the bar.

The two standards — and only two

Criminal: beyond reasonable doubt. A very high standard. The court must be convinced there is no reasonable doubt on the facts.

Civil: balance of probabilities. If the tribunal considers it more likely than not, the burden is discharged. If the probabilities are evenly balanced, it is not.

There is no third standard. This was settled in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ, which held that even where fraud is alleged in a civil suit, the standard remains the balance of probabilities. The court adopted the reasoning in Re B (Children):

"at law there are only two standards of proof, namely, beyond reasonable doubt for criminal cases while it is on the balance of probabilities for civil cases… even if fraud is the subject in a civil claim the standard of proof is on the balance of probabilities. There is no third standard."

And neither the seriousness of the allegation nor the seriousness of the consequences changes that.

Why this matters historically: before Sinnaiyah, Malaysian courts had applied inconsistent approaches to civil fraud, including a "very high degree on the balance of probabilities" and even the criminal standard. If you find older material saying civil fraud requires proof beyond reasonable doubt, it reflects the pre-2015 position.

The criminal process has an extra step

In a criminal case the prosecution must first establish a prima facie case before the defence is called.

The classic formulation, reiterated by Augustine Paul FCJ in Balachandran a/l Selvaratnam v PP [2005] 2 MLJ 301:

"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 sufficiently strong evidence, and can be overthrown only by rebutting evidence adduced by the other side."

Once the defence is called, the prosecution must prove the case beyond reasonable doubt.

One nuance worth knowing: the balance of probabilities standard also appears within criminal cases in defined situations — notably where an accused must rebut a statutory presumption. In Mohd Radhi bin Yaacob v PP [1991] 3 MLJ 171, Mohamed Azmi J explained that to rebut a statutory presumption in a drug trafficking charge, the balance of probabilities applies — a lower standard than the prosecution must meet.

Practical consequences of the difference

Who controls the case. In a civil suit you decide whether to sue, settle or discontinue. In a criminal matter, you do not control anything — the Public Prosecutor decides whether to charge, and can withdraw. Your police report is a trigger, not a claim. See (NFA Does Not Mean Closed. And The Police Are Not The Ones Who Decide Whether To Charge.).

What you get. A civil claim can produce money. A criminal conviction produces punishment, and does not automatically compensate you. Wanting compensation usually means a civil suit, whatever happens in the criminal court.

What you risk. A civil defendant risks money and costs. A criminal accused risks liberty, and in the most serious cases far more.

Legal aid differs. Criminal representation at the police station stage may be available through YBGK in eligible cases; civil legal aid operates separately. Bar Council Legal Aid Centres: malaysianbar.org.my.

Both at once is normal. A road accident can produce a s.41 RTA prosecution and a civil claim for damages. A breach of trust can be prosecuted and sued on — with the criminal case requiring proof beyond reasonable doubt and the civil case only the balance of probabilities.

That asymmetry is why a civil claim can succeed where a prosecution fails. Different standard, different tribunal, different result — without either being wrong.