Powers of the Public Prosecutor

Art. 145(3), FC: The power to institute prosecutions is vested in the AG as the Public
Prosecutor.
Sec. 376(1): The AG shall be the Public Prosecutor and have control and direction of all
criminal prosecutions and proceedings.
- Art. 145(3) and Sec. 376(1) when read together clearly shows that wide powers are
conferred upon the Public Prosecutor.
Sec. 254(1): The Public Prosecutor is vested with the power to decline to prosecute the
accused any further and cause him to be discharged.
- Sec. 254(3): Such discharge shall not amount to an acquittal unless the court so directs.
- The effect of a discharge is that the accused may be charged again for the same
offence at any time in the future.
- The effect of an absolute acquittal is that the accused cannot be put on trial
again based on the same offence for which he was acquitted.

- Once Sec. 254(1) is invoked by the prosecution, the court has the option of ordering
an acquittal or a discharge not amounting to an acquittal (DNAA).
- Koh Teck Chai v PP: The power enabling the discharge of the accused person
without acquitting him is a power which should be exercised sparingly and
grudgingly and only where the court is satisfied for good cause shown that
the public interest insistently demands that it be used. Our courts have
consistently adopted the line that unless some very good ground is shown it
would not be right to leave an individual for an indefinite period with a
charge hanging over him. Thus, depending on the circumstances, the order
should be varied so that the discharge should amount to an acquittal.
- However, an acquittal at the subordinate courts can only be made at the close
of the prosecution’s case or at the conclusion of the trial. Thus, although the
court may discharge the accused at any stage of the case, it would not
amount to an acquittal.
Sec. 173(g): The court may discharge the accused at any stage of the case if it considers the
charge to be groundless.
- ‘Groundless’: Where there are no good grounds for the charge.
- Where the court decides that a discharge under the provision is appropriate, the
discharge ordered cannot amount to an acquittal.
- This power is vested in the court alone.
Sanction & Consent
Despite the wide powers conferred upon the Public Prosecutor, there are instances where
the Public Prosecutor is required to manifest the exercise of his discretion in the form of a
consent, sanction or a written authorisation.
- Where consent, sanction or a written authorisation is required, non-compliance will
cause the court to be unable to take cognisance of the offence, thus depriving it of
jurisdiction to hear the case and rendering the trial a nullity.
- PP v Manager, MBf Building Services: The prosecution ought to tender evidence of
authorisation by the AG or else the court has no basis to hold that the proceedings
were properly instituted.
Sanction:
- It is given by the Public Prosecutor to institute the prosecution of certain offences.
- Sec. 129(1): For offences under the Penal Code, a sanction is required for the offences
listed under limbs (a) – (c), an absence of which will not allow the court to take
cognisance of the offence.
- Where the offence is listed under Sec. 129(1), Sec. 129(3) requires for the
sanction to be in writing.
- If the offence is not listed, a sanction is therefore not required.
- Other legislations requiring sanction:
- Sec. 58(2), Immigration Act
- Sec. 34(9), Local Government Act
- Sec. 34, Poisons Act
- It does not need to be tendered where there is no express requirement stipulated in
a specific legislation.
Consent:
- It is given in writing by the PP after full consideration of the entire facts of the case.
- It must be tendered when the prosecution is instituted.
- Legislations requiring consent:
- Sec. 177A, CPC
- Sec. 39B(3), Dangerous Drugs Act
- Sec. 58, MACCA
- Peaceful Assembly Act
Abdul Hamid v PP, the difference between sanction and consent: A prosecution can be
sanctioned without any deep consideration of the particular case, but full consideration is
required for consent since consent is an act of reason, accompanied with deliberation, the
mind weighing, as in a balance, the good and evil on each side. A sanction cannot therefore
amount to evidence of consent.
Absence of consent or sanction:
- Doctrine of alter ego:
- Absence of consent: The doctrine of alter ego implies consent through the
presence of the PP in court without the need of formal consent.
- Where Sec. 378 provides that no person shall appear on behalf of the
Public Prosecutor other than the Public Prosecutor himself, a Senior
DPP or a DPP, if a Senior DPP or DPP himself prosecutes the case, there
is no need for a formal consent.
- Tiong Ching Heng v PP: The presence of the DPP in court constitutes
consent.
- However, where the law specifically provides that the consent by the
PP must be in writing, the presence of the DPP will not suffice.

- Absence of sanction:
- Where the prosecution is required to produce a sanction in writing as
under Sec. 129(3) in order to prosecute an offence, the presence of the
DPP does not constitute sanction.

- Sec. 422 (Irregularities not to vitiate proceedings):

- Absence of consent:
- The provision only provides a cure for any error in a consent
(Sec. 422(a)) but does not provide a cure where the prosecution fails to
tender consent.
- Where the law specifically provides that the consent by the Public
Prosecutor must be in writing, the presence of the DPP will not suffice
and the absence of such consent cannot be remedied by the provision.

- Absence of sanction:
- Sec. 422(a) & (b) provides a cure for errors in a sanction, as well as the
failure of the prosecution to tender sanction.
- However, the provision cannot be invoked to cure a proceeding
instituted by an authority other than the Public Prosecutor.
- Thus, any irregularities in relation to a sanction can be remedied by the
provision.
Transfers and Transmission
‘Transfer’: Taking a case out of a court which has jurisdiction over the matter for trial in
another court of equal or superior jurisdiction.
Lateral transfer (between courts of co-ordinate jurisdiction):
- Sec. 104, SCA: A Sessions Court judge or a Magistrate has the power to transfer a
criminal case to any other Sessions Court or Magistrate’s Court.
There are three requirements of a lateral transfer:
- It must be between courts of co-ordinate jurisdiction
- Sec. 99A, SCA read with para. 3(2), Third Schedule, SCA: The Sessions Court
judge or Magistrate, on application or of its own motion, has the power to
transfer any proceedings to another court of co-ordinate jurisdiction.
- E.g: Magistrate’s Court  Magistrate’s Court; Sessions Court  Sessions Court

- PP v Mohamad Wahab: The accused was charged in the Sessions Court for an
offence under Sec. 304. When the case was called up for mention, the DPP
applied for it to be transferred to the Magistrate’s Court, upon which the
Sessions Court judge accordingly transferred the case. In exercising its
revisionary powers, the High Court held: Under Sec. 104, a Sessions Court
judge may transfer a case only to another Sessions Court and likewise a
Magistrate may transfer a case only to another Magistrate’s Court. Thus, a
court may transfer a case only to another court of co-ordinate jurisdiction. The
reliance by the Sessions Court judge on Sec. 104 in making the order of transfer
was therefore wrong in law.
- PP v Ho Huah Teong: A Sessions Court has no power to transfer a case for trial
to the Magistrate’s Court despite it having jurisdiction over the offence.

- It must be effected by a transferor court to a transferee court

- Magistrate’s Court 1 (Transferor)  Magistrate’s Court 2 (Transferee)
- The transfer must be made by the transferor court, which is the original court
that was supposed to hear the case, to the transferee court, which is the
receiving court.
- Thus, an application for a transfer must be made to the transferor court
and not the transferee court.
- The principle laid down in Tengku Abdul Muiz Shah v PP: An application
for transfer should be filed at the transferor court and it will be in the
power of that court, if it so decides, to transfer the case.

- Manokaran v PP: The High Court in reviewing the transfer of two cases effected
by the Special Sessions Court from the Sessions Court held that the Special
President was wrong in the exercise of his powers as the transfer was effected
by the transferee court (Special Sessions Court) to itself.
- It must be done in the interests of justice
- Manshor Omar v PP, ‘interests of justice’: Where a judge has made a ruling or
order with the fundamental requirements of fairness and justice in his mind.
- In this case, the High Court agreed that the order of transfer made by
the Sessions Court judge to have the case transferred from the KL
Sessions Court to the Ampang Sessions Court (Selangor) will tend to
the general convenience of the parties and witnesses. The charges
arose from dealings in the same project and would involve the same
witnesses and documents. Thus, it would be convenient to all the
applicants to have them tried at the same forum.

- Ahmad Abu Bakar v PP: Magistrate A, having found the accused guilty,
transferred the case directly to Magistrate B for the accused’s sentencing on
the ground that she felt cheated for not being told about the accused’s
previous convictions, which she explained to Magistrate B through a note.
- On appeal, the High Court held: In an application to set aside a decision
on the ground of biasness, it is not necessary to prove that the judicial
officer was biased. It is sufficient to show that there is a real likelihood
of bias or where a reasonable person advised of the circumstances
might reasonably suspect that the judicial officer was unable to
produce the kind of impartiality and detachment expected of him.
The correct test would be to ascertain whether there is an appearance
of bias and not whether there is actual bias.
- When Magistrate A wrote to Magistrate B, there was an appearance of
bias on the part of Magistrate A and the transfer of the case to
Magistrate B was wholly justifiable.

- Manokaran v PP: The High Court in reviewing the transfer of two cases effected
by the Special Sessions Court from the Sessions Court found that it was not
done in the interests of justice.
- The Special President stated that he exercised his own initiative to hear
the case and both appellants were produced in his court in order to
advance the date of hearing whereupon they pleaded guilty and were
sentenced in accordance with law, when in fact the DPP was not ready
to proceed to a hearing of the cases on that day and that there was no
indication of any retraction or change of plea by the appellants who
had claimed trial on the previous day.
- The Special President clearly acted suo motu (on his own accord) and
unilaterally took over the cases, especially where there was no order
whatsoever appearing anywhere in the record of proceedings for the
transfer of the two cases to the Special Sessions Court.
- The three requirements of transfer are subject to the local limits of the court
(depending on whether it has been assigned):
- Magistrate’s Court:
- Sec. 76(2), SCA: Where no local limits have been assigned to a
Magistrates’ Court, it has the same local jurisdiction of the respective
High Court.
- Proviso to Sec. 76(2), SCA: No Magistrate has jurisdiction to hear a case
in a State other than where he has been appointed as a Magistrate.
- Sec. 2, CPC, ‘local limits of the jurisdiction’ of a Magistrates’ Court: The
limits of the ordinary administrative district in which the Court is
situated.
- Thus, a transfer between Magistrates’ Courts can only be effected
within the local limits set out under Sec. 76(2), SCA and Sec. 2, CPC.

- Sessions Court:
- Unlike the Magistrate’s Court, there are no local limits assigned to the
Sessions Court.
- Tengku Abdul Muiz Shah v PP: The Sessions and Magistrates’ Courts
have jurisdiction to hear and determine any civil or criminal cause or
matter arising within the local jurisdiction assigned to them or, if no
such local limits have been assigned, arising in any part of the local
jurisdiction of the respective High Court.

- PP v Segaran: The local limits of the Sessions Court are those assigned
by the YDPA under Sec. 59(1), SCA. Where it is clear that the YDPA has
not made any such order to assign the local limits of jurisdiction of
each Sessions Court, then the Sessions Court as under Sec. 59(2), SCA
has the same local jurisdiction as its respective High Court.
- Thus, in this case, the transfer ordered from the Sessions Court
in Petaling Jaya (Selangor) to the Sessions Court in KL was
allowed.

- Manshor Omar v PP: The High Court in allowing the transfer from the
KL Sessions Court to the Ampang Sessions Court (Selangor) ruled that
although the charges referred to offences which took place in different
places (KL and Ampang (Selangor)), as they were all in the vicinity of
the Klang Valley, the applicants’ interest would not be prejudiced by
having their cases tried in the same Sessions Court at Ampang.
Vertical transfer (transfer to a court of superior jurisdiction)
- Sec. 177: A Magistrate may transfer a case to a higher court:
- At any stage of the proceedings from any cause, where he is of the opinion
the case is one which ought to be tried by a court of higher jurisdiction; or
- The Magistrate has the discretionary power to transfer the case for
whatever reason.

- Before or during the trial on an application made by the Public Prosecutor for
the case to be transferred to a court of higher jurisdiction.
- The provision does not apply to an accused person.

- PP v Fan Yew Teng: Where a transfer under Sec. 177 is necessitated by ‘any cause’,
this would include the grounds set out in Sec. 417.
- Thus, the grounds listed under Sec. 417 may be used as a reason for effecting
the transfer.

- PP v Ng Ah Tak: ‘Any cause’ may also include a transfer for trial to a Sessions Court
where the Magistrate is of the opinion that, in the circumstances of the case, his
sentencing powers are inadequate.

- The transfer must be effected by a transferor court to a transferee court.

- The principle laid down in Tengku Abdul Muiz Shah v PP: An application for
transfer should be filed before the transferor court and it will be in the power
of that court, if it so decides, to transfer the case.
Transmission of cases (for cases that are to be tried at the High Court):
- Sec. 177A: A prosecution for an offence which is to be tried by the High Court can only
be instituted by or with the consent of the Public Prosecutor. The accused must first
be produced before the Magistrate’s Court, where the charge is read to him. Once the
consent has been obtained, the case shall be transmitted to the High Court.
Transfers by the High Court
- The transfer may be made:
- Sec. 417(1)(bb): From a lower court to a court of equal jurisdiction or a court
of superior jurisdiction
- E.g: On an application made to the High Court, a transfer may be
effected from one Magistrate’s Court to another Magistrate’s Court (a
court of equal jurisdiction) or to a Sessions Court (a court of superior
jurisdiction).
- Tengku Abdul Muiz Shah v PP: The Sessions and Magistrates’ Courts
have jurisdiction to hear and determine any civil or criminal cause or
matter arising within the local jurisdiction assigned to them or, if no
such local limits have been assigned, arising in any part of the local
 jurisdiction of the respective High Court. Thus, an application for
transfer under Section 417 must be made to the High Court in the
right jurisdiction that is the High Court to which the lower court is
subordinate to.
- In this case, where the offence was alleged to have been
committed within the territorial jurisdiction of the Johor Bahru
Magistrate’s Court, and the High Court at Johor Bahru has the
local jurisdiction for the State of Johor, the Johor Bahru High
Court is thus the court of competent jurisdiction to hear the
application for transfer and not the High Court at KL.

- Sec. 417(1)(cc): From a lower court to itself, but not from itself to another
High Court.
- Chong Siew Choong v PP: Sec. 20, CJA provides that the distribution of
business among High Court judges shall be made in accordance with
the directions of the Chief Judge. Thus, only the Chief Judge can direct
a High Court Judge to transfer a case from one High Court to another.
The Chief Judge has that overriding power and it is his prerogative to
do so. High Court Judges have no powers of the like nature and are
bound by Sec. 20, CJA. The inherent powers of the High Court cannot
be exercised to override or circumvent the express provisions of the
law.

- Sec. 417(2): The transfer may be made on the report of the lower court, on the
application of the Public Prosecutor or the accused, or on the High Court’s own
initiative.

- Sec. 417(1) lists down the grounds upon which the High Court may transfer a case.
- (a) Where a fair and impartial trial cannot take place in the subordinate court
- Oh Keng Seng v PP: Where the case concerned the offence of sedition,
the High Court in dismissing the application for transfer held:
- The power of transfer under the provision should be exercised
only if it appears to the court that not to do so may result in
an unfair or unimpartial trial or otherwise appears to the court
expedient in the interest of justice.
- Nowhere in the affidavit was there evidence to show that a fair
and impartial trial cannot be held in the subordinate court.
- An offence of sedition is an ordinary criminal offence which
should normally be tried in the ordinary court of appropriate
jurisdiction. The fact that a politician is involved by itself alone
should not alter the position.
 - (b) Where some question of law of unusual difficulty is likely to arise
- Oh Keng Seng v PP: The use of the word ‘unusual’ indicates that the
difficulty in relation to the law involved must be such that either the
question of law is one which is unique or out of the usual or ordinary
or one which has not been dealt with by any court before. The fact
that a constitutional point of great importance is expected to be
raised during the trial is not sufficient ground to transfer under this
provision.
Transfers by the Public Prosecutor
- Sec. 418A: The Public Prosecutor has the power to remove pending cases in the
subordinate courts to the High Court following the issuance of a certificate tendered
to the subordinate court concerned.
- Sec. 418B: Sec. 418A applies to all cases triable in a subordinate court as long as the
accused has not pleaded guilty and no evidence against him has been adduced.

- PP v Su Liang Yu: A number of charges of alleged corruption was brought against the
accused, who is a Member of Parliament, and the Public Prosecutor had directed that
the case be tried in the High Court. However, no reasons were given for the case to be
heard in the High Court. In reviewing the Public Prosecutor’s direction, the High Court
held that the case should be transferred to the Sessions Court for trial:
- The case was brought by the Public Prosecutor under Sec. 418A giving no
reason whatsoever for doing so. Although the provision does not require the
Public Prosecutor to set out the reasons, common sense can sometimes tell
the reason, like difficult points of law involved or any element of public
interest. What is unwritten in the provision is the question of difficulties in
points of law involved or the question of public interest.
- However, when the case is within the competency of the subordinate court
and it appears that there is no difficulty in questions of law or there is no
mention or indication of matter of public interest involved, the sole fact that
the accused is a Member of Parliament does not entitle him to be charged
and be heard in a court higher than the court of competent jurisdiction.
Plea of guilty
After the charge is read and explained, in the absence of any objections to the accused’s
fitness to plead, he may elect to plead guilty or claim trial.
Sec. 173(b): If the accused pleads guilty to the charge, the plea shall be recorded and he may
be convicted and sentenced according to law.
- Heng Kim Khoon v PP: A plea of guilty may be accepted by the court and the accused
convicted on it, but the court is not bound to accept a plea of guilty in all cases. The
court must carefully consider whether the accused has fully understood the nature
of the charge to which he pleads guilty. The accused is not to be taken at his word
when he pleads guilty unless the plea is expressed in unmistakeable terms with full
appreciation of the essential ingredients of the offence. This rule of law is applied
with all the greater stringency when the offence charged is complicated or serious.
Proviso to Sec. 173(b): Before a plea of guilty is recorded, the court, in ensuring that the
safeguards for a plea are adhered to, shall ascertain that:
- It is the accused himself who wishes to plead guilty;
- Rex v Tan Thian Chai: The charge was read to the accused and before they
could plead to it through their own mouths their counsel pleaded guilty on
their behalf to a charge of assault whereupon the judge convicted and
sentenced them to 6 months’ imprisonment each. The accused appealed on
the ground that they never pleaded to the charge and that their counsel did
not have any authority to plead guilty, thus they were not bound by their
counsel’s plea. The court held: An accused person should plead guilty or claim
to be tried by his own mouth and not through his counsel or advocate.

- The accused understands the nature and consequences of his plea; and
- The accused is aware of the nature of his plea and the nature of the offence he
is pleading guilty to.
- By pleading guilty, the accused will not have an opportunity to put forward his
case or raise a defence.
- The accused is aware that pleading guilty does not preclude the court from
imposing the maximum sentence for the offence.
- Leniency is only available where it is made before the trial commences
- Sau Soo Kim v PP: A plea of guilty should be treated as a
mitigating factor. It not only saves the country a great expense
of a lengthy trial but also saves time and inconvenience of
many, particularly the witnesses.

- Once the trial has commenced, leniency is an unlikely possibility as the

accused did not help save the court any time.
- PP v Dato’ Nallakaruppan: Where the accused pleaded guilty
only after 12 days of trial after a lot of time had been wasted
 and the witnesses had testified, the court held that his plea
could not be considered as a mitigating factor (the plea has lost
its mitigating effect) that could lessen the sentence.
- Once the accused pleads guilty he cannot appeal against his conviction, but
may only appeal against his sentence.

- The accused intends to admit, without qualification, the offence alleged against him.
- A plea of guilty must be completely unreserved, unqualified and unequivocal.
- Where the accused attempts to justify the commission of the offence in his
plea, it should not be accepted.
- PP v Yusoff: The accused was charged for being found in possession of a “keris”,
an offence punishable under Sec. 6(1) of the Corrosive and Explosive
Substances and Offensive Weapons Ordinance 1958. He made a qualified plea
of guilty by explaining that he was returning the keris after a wedding
ceremony and the Magistrate should not have accepted his plea. Thus, the
High Court quashed the sentence imposed by the Magistrate and discharged
the accused from the charge, such discharge not amounting to an acquittal.

- Munandu v PP: The accused was charged for the offence of theft of a bicycle.
The accused pleaded guilty to the charge and the learned Magistrate accepted
his plea. However, before the sentence was passed the accused said in
mitigation “I was drunk at the time. I took the bicycle by mistake”. The
Magistrate then fined him RM300, in default of which he would be imprisoned
for 3 months. The High Court, in exercising its revisionary powers, held that the
accused’s plea was equivocal. The accused did not fully understand the charge
or know that if he really in good faith and believing the bicycle to be his
property had taken it out of the owner's possession, then he did not take it
dishonestly and therefore did not commit theft. Thus, the High Court reversed
the sentence and remitted the case for a retrial before another Magistrate.
After the plea of guilty, it is an established practice that the prosecution must give a detailed
and complete narrative of the facts of the case.
- Although the CPC does not impose an obligation upon the prosecution to provide a
statement of facts, the objective is to ensure that the accused understands the nature
and consequences of his plea and intends to admit, without qualification, the
offence alleged against him.
- Thus, it is for the prosecution, on a plea of guilty, to tender a statement of facts which
outlines the nature of the offence allegedly committed.
- The statement of facts must be read to the accused and must disclose the offence
allegedly committed.
- Sau Soo Kim v PP: If an accused pleads guilty to a charge which creates no
offence known to law and the facts also disclose no offence, clearly such a
conviction could not be allowed to stand. A plea of guilty to what is not an
offence is no plea at all.
 - The facts must reflect the true and essential elements of the charge. It must
be concise, unambiguous and contain relevant facts that are supportive of the
elements of the charge.
Only where a plea of guilty is absolute and is followed by a statement of facts which disclose
the offence allegedly committed can the court then accept the plea.
Withdrawal of a plea of guilty:
- Lee Weng Tuck v PP: A trial judge has the discretionary power to permit an accused
person to change his plea at any time before sentence, but the discretion must be
exercised judicially and on valid grounds. Where, however, the accused wishes to
change his plea of guilty for reasons which gives rise to a reasonable doubt as to the
validity or unequivocality of the guilty plea due to failure to take proper safeguards,
then the court has no discretion but to permit the accused to retract his plea.
- In this case, where the case concerned capital punishment, there was a breach
of the proper safeguards when the pleas of guilty of the appellants were
accepted as there were grave doubts that the appellants understood the
nature and consequences of their plea and that they intended to admit
without qualification the offence alleged against them. Thus, the Supreme
Court held: The appellants ought to have been allowed to change their plea of
guilty to their original claim to be tried.

- Abdul Kadir Abdul Rahman v PP: The appellant was charged with CBT of RM200
belonging to the Government. The appellant claimed trial, but subsequently pleaded
guilty. Upon his conviction, his counsel made a lengthy plea of mitigation but failed to
explain what happened to the RM200. The accused was sentenced to 18 months’
imprisonment and filed an appeal. Upon an appeal to withdraw his plea, the High
Court held: The failure of the accused to advance any sort of explanation can in the
view of the court lead to only one inference, namely the guilt of the accused. In the
absence of a rebuttal, that inference was enough to sustain the conviction against
him.
- Whilst there is a discretion vested in the trial court to permit an accused person
before his sentence to withdraw a plea of guilt and to substitute a plea of not
guilty, that discretion must be exercised judicially and for valid reasons. An
accused person cannot be permitted merely at his whim to change his plea
except on valid and sufficient grounds which satisfy the magistrate that it is
proper in the interest of justice that he be allowed to do so. In this case there
was no justification for permitting the appellant to reverse his plea of guilt.
Sec. 173(c): If the accused does not plead guilty or refuses to plead, the court can make the
presumption that the accused is claiming trial.
Trial Process
Prima facie case:
- Sec. 173(f)(i): At the close of the prosecution’s case, the court shall consider whether
a prima facie case has been made out against the accused.
- Sec. 173(h)(iii): A prima facie case has been 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.
- In order to determine whether a prima facie case has been made out, the court must
conduct a maximum evaluation of the evidence adduced. However, at this stage, the
prosecution is not required to prove its case beyond reasonable doubt.
The evaluation process involves considering whether:
- All the ingredients of the offence have been established
- The prosecution must make out the ingredients of the charge with the
evidence adduced.

- There is a nexus between the accused and the offence

- The evidence adduced must implicate the accused of the offence charged.
- PP v Hanif Basree: There was a failure to establish a nexus between the
accused and the offence of murder as the evidence adduced produced
the DNA of an unknown third party, such as the semen obtained from
the vaginal swab and the fingernail cuttings of the deceased. Such
failure raised doubt as to who committed the offence of murder,
whether it was the accused or the unknown male, and led to the
acquittal of the accused.

- A break in the chain of evidence could absolve the accused’s liability.

- Yeap Theong Tan v PP: The requirement of strict proof in a criminal case
cannot be relaxed to bridge any material gap in the prosecution
evidence. Irrespective of whether the court is otherwise convinced in
its own mind of the guilt or innocence of an accused, its decision must
be based on the evidence adduced and nothing else.

- PP v Syed Mohd Faysal: Where the accused was charged with murder,
the court found that there was a serious break in the chain of evidence
as to the movement and preservation of the sample of blood. The
material gap and break in the chain of evidence as to whose sample of
blood was in the envelopes was so serious that the evidence as to the
identity of the suspect was further weakened and left in great doubt
the nexus between the bloodstains and the sample of blood used for
comparison by the chemist. Thus, the DNA profiling and the
comparison made on the sample of blood with a view to implicate the
 accused had to be rejected. Consequently, it absolved the accused
completely from the crime of murder.

- The evidence adduced is credible

- Credible evidence is evidence which has been filtered and which has gone
through the process of evaluation, the absence of which will not warrant the
finding of a prima facie case.
- PP v Dato’ Seri Anwar Ibrahim: The force of the evidence 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 on the supposition that those facts existed and did
happen.
Sec. 173(h)(i): If the court is satisfied that a prima facie case has been made out against the
accused, the court shall call upon the accused to enter his defence.
- In making his defence, the accused is entitled to three options:
- To give sworn evidence in the witness box
- The accused has the right to decide whether or not to be a witness, and
unless he elects to do so, he cannot be compelled to give evidence.
- There is no duty cast upon the defence to call any evidence and no
inference unfavourable to him can be drawn.
- The failure to give evidence cannot be said to be consistent with
guilt.
- To give an unsworn statement from the dock
- Where the accused elects to make an unsworn statement from the
dock, he cannot be subjected to cross-examination by the prosecution.
However, it is the law that the court must still consider it.
- To remain silent
- If the accused elects to remain silent on being called to enter his
defence, the court must then proceed to convict him.

- The accused, when called to enter his defence, is at liberty to call witnesses to testify
on his behalf.
- However, no duty is cast upon the accused to call any witnesses and no
adverse presumption shall arise against the accused person for failure to call
any particular witness or witnesses made available by the prosecution.
- Goh Ah Yew v PP: There is no duty upon an accused to call any evidence. He is
at liberty to offer evidence or not as he thinks proper and no inference
unfavourable to him can be drawn because he adopts one course rather than
the other.
- Roslan Karim v PP: It is not the duty of the accused to prove his innocence, far
less to produce or to bring a particular witness to support his story.
A case beyond reasonable doubt:
- Sec. 173(m)(i): At the conclusion of the trial, the court shall consider all the evidence
adduced and decide whether the prosecution has proved its case beyond reasonable
doubt.
- The case against the accused must be established by positive proof. Proof beyond
reasonable doubt is proof that leaves the court firmly convinced of the accused’s guilt.
- In order for the prosecution to prove its case beyond reasonable doubt, the
elements of the offence must have been fulfilled and the nexus between the
accused and the commission of the offence must have been established.

- If the court finds that the prosecution has proved its case beyond reasonable doubt,
it may convict the accused (Sec. 173(m)(ii)), but if it finds that it has not, it shall acquit
the accused (Sec. 173(m)(iii)).

- Mat v PP: If you (the judge) accept the explanation given by or on behalf of the
accused, you must of course acquit. But this does not entitle you to convict if you do
not believe that explanation, for the accused is still entitled to an acquittal if it raises
in your mind a reasonable doubt as to his guilt, as the onus of proving his guilt lies
throughout on the prosecution. If upon the whole evidence you are left in a real state
of doubt, the prosecution has failed to satisfy the onus of proof which lies upon it.
- In this case, the accused was charged with theft and alternatively with
dishonestly retaining stolen property. He gave evidence and called witnesses
in his defence at the end of which he was convicted because “on the whole”
the learned Magistrate was “unable to believe the defence.” The High Court
held: The Magistrate had seriously misdirected himself as to the meaning of
the burden of proof by the accused in cases where it was necessary for him
to rebut the prosecution’s case against him.
- The court should determine whether the evidence adduced by the
defence raises any reasonable doubt as to the guilt of the accused.
- The accused will only earn an acquittal if he succeeds in raising reasonable
doubt upon the prosecution’s case.

- Ali Tan Abdullah v PP: Mere denial or presenting a bare story of innocence cannot
amount to reasonable doubt. The court’s acceptance of the explanation offered by
an accused must be based upon reason and common sense, and cannot be illogical
or irrational. The existence of reasonable doubt is dependent upon the totality of the
evidence and on an examination of all the evidence in a fair and reasonable manner
and not in isolation.

- PP v Ling Tee Huah: A mere denial without other proof to reasonably dislodge the
prosecution’s evidence is not sufficient.
Alibi
‘Alibi’: A defence that places the accused at the relevant time of the crime in a different place
than the scene of the crime and thus, renders it impossible for him to be the guilty party.
- Sec. 402A(1): At the time the accused is charged, he shall be informed of his right to
put forward a defence of alibi.
- The defence must go beyond a bare denial or of mistaken identity and show that by
reason of his presence at a particular place, he was not or was unlikely to have been
at the place where the offence was alleged.
The court must first identify the defence raised by the accused, namely whether it is an alibi
or a bare denial.
- Ku Lip See v PP: What is ordinarily meant by an alibi is that the accused’s presence
elsewhere is essentially inconsistent with his presence at the time and place alleged,
and therefore with participation in the crime. An alibi may absolutely preclude the
possibility of presence at the alleged time and place of the act; or the alibi may not
involve absolute impossibility, but only high improbability and still be convincing.
- Vasan Singh v PP: An alibi defence will not be a simple statement of: “I did not do it. I
was not there. I was elsewhere.” That would be evidence of a bare denial. To establish
his alibi, the accused must disclose where he was at the time of the alleged offence
and what he was doing.

- Devarajan v PP: The accused was charged with voluntarily causing hurt by the use of
a dangerous weapon. The court found that his statement that he was at home
sleeping amounts to an alibi as he was at some other place at the material time.
- Tan Kim Ho v PP: The two accused were jointly tried at the High Court for committing
offences under the Firearms (Increased Penalties) Act 1971, namely the act of robbery
with the use of firearms at a pub. The second accused’s defence was that he was not
inside the pub at the time of the robbery and shooting. The Federal Court upheld the
decision of the Court of Appeal in concluding that the learned trial judge had
misdirected himself in regarding the defence as one of alibi because, to constitute the
defence of alibi, the plea must be one of not being present at the scene at the time
of the incident, whereas the second appellant was present at the scene, even
though, as he claimed, he was not inside the pub but was outside it. Thus, the
defence raised was merely that of a bare denial.
Once the court has identified whether the defence is an alibi or a bare denial, it must decide
whether the defence can be accepted as evidence.
- A defence of alibi is only admissible where there is compliance with the requirements
of Sec. 402A.
- Sec. 402A(2) & (3): Where the accused puts forward a defence of alibi, he must give a
notice of the alibi to the prosecution in order for the evidence in support of the alibi
to be investigated within reasonable time.
- The requirement for a notice is mandatory.
 - Ku Lip See v PP, ‘evidence in support of an alibi’: Evidence tending to show that by
reason of the presence of the accused at a particular place or in a particular area at a
particular time he was not, or was unlikely to have been, at the place where the
offence is alleged to have been committed at the time of its alleged commission.
Where no notice has been served:
- Vasan Singh v PP: A distinction should be drawn between a bare denial and an alibi
defence. Evidence of a bare denial is in any case always admissible. In order to
distinguish one from the other the court must know the nature of the evidence after
having heard the evidence. If it is only evidence of a bare denial, the evidence stays
(but the court must then decide how much weight to accord to the evidence). If it is
evidence in support of an alibi and no notice under Sec. 402A has been given, then
the court must exclude that part of the evidence from its consideration.
- In this case the accused was charged with voluntarily causing hurt and in his
defence he said that “he was asleep at the time of the incident. He heard
noises and came out and saw some persons injured.” The Supreme Court held
that the lower courts had erred in its findings as the evidence was not that of
an alibi but a mere denial.
- Where the accused sought to give evidence on his own behalf but had
failed to give a notice, the Supreme Court ruled that an accused person
who gives evidence on his own behalf of a defence of alibi and
proposes to call no other witnesses in support of the alibi is still
obliged to give notice under Sec. 402A.
- Thus, the prosecution can only object where there is no compliance with
Sec. 402A.
- Where a notice is not served, the accused’s defence remains a bare
denial and the prosecution cannot object to it as there are no
procedural requirements needed to be complied with.
- In order for a defence of alibi to be admissible, Sec. 402A must be
complied with.

- PP v Abdul Malik Marahaji: The two accused were charged with an offence under the
Prevention of Corruption Act 1961 for accepting a bribe, which took place outside the
complainant’s home. However, the two accused and their relatives gave evidence
that they were, at the relevant time, at their home. Although the court accepted the
defence as an alibi, where no notice was given, the evidence, which tend to support
the alibi, must be excluded.

- Dorai Pandian v PP: The accused were jointly charged with murder. The defence of the
second accused was that he was never at the scene of the crime at the time the
offences were committed as he was at all material times in his hotel room sleeping,
and when he was outside his hotel room he was not at the immediate scene of the
crime. The High Court ruled that the evidence of the second accused is not evidence
of a bare denial but detailed evidence in support of an alibi. Although the High Court
 found the second accused’s defence to be an alibi without a notice, the judge
nevertheless proceeded to consider in depth the second accused’s defence as
though it was a denial, as well as the evidence of his witnesses.
Where notice has been served:
- Sec. 402A(4): In order for the notice to amount to a valid notice, it must include the
particulars of the place that the accused claimed to have been and the names and
addresses of witnesses who he intends to call in order to establish his alibi.

- PP v Muslim Ahmad: “Substantial compliance” with Sec. 402A is insufficient for the
purposes of determining whether there has been compliance with the provision. The
requirements of the pre-trial notice under Sec. 402A must be strictly complied with.
- In this case, the accused was charged with three offences under the
Communications and Multimedia Act. The court found that by not stating the
place where the accused and his witnesses were supposed to be at the time
of the commission of the offence, and the addresses of the said witnesses,
the accused had failed to comply with the strict requirements of Sec. 402A.
- The notice of alibi served on the prosecution merely mentioned that
the accused was with his employees and disclosed their names and
phone numbers. It did not state with clarity and precisely the
particulars required under Sec. 402A(4). As such, the accused’s notice
of alibi, with its several deficiencies, was defective.
- The provisions of Sec. 402A are evidential and not merely procedural and that
the failure to comply with the provisions would render any alibi evidence
adduced to be inadmissible.
- Where the notice given is defective for failure to comply strictly with the said
provision, any evidence in support of the alibi must be excluded from the
consideration of the defence evidence. In such a situation, the court has no
discretion to waive the requirement of the pre-trial notice.
- The exclusion of the accused’s defence of alibi from his testimony due to its
non-compliance with Sec. 402A in effect makes his evidence that of a bare
denial.

- Only where a notice is accepted can the accused then call in the witnesses to establish
his alibi.
- The testimony of the witnesses must corroborate the accused’s statement.
- It must be consistent with the accused’s statement, namely that it
specifies where the accused was at that material time.
- Where the testimony of a witness is not consistent with the accused’s
statement, the court must determine the weight that should be
accorded to such evidence.
- Evidence of good character of the accused given by the witness does not
corroborate the accused’s statement.