Abdul Hamid Mohamad FCJ:

In this judgment, Dato' Seri Anwar bin Ibrahim will be referred to as "the first appellant " and Sukma Darmawan Sasmitaat Madja will be referred to as "the second appellant ".

The first appellant was charged with an offence punishable under s. 377B of the Penal Code.

The second appellant was charged with two offences. The first charge is for abetting the first appellant in the commission of the offence with which the first appellant was charged. The second charge is similar to the charge against the first appellant ie, under s. 377B of the Penal Code.

Both the appellants were tried jointly. The first appellant was convicted and sentenced to nine years imprisonment commencing from the expiry of the sentence he was then serving in the first trial (High Court Kuala Lumpur Criminal Trial No. 45481998 [1999] 2 CLJ 215 (HC), [2000] 2 CLJ 695 (CA) and [2002] 3 CLJ 457 (FC)). The second appellant was convicted on both charges and sentenced to six years imprisonment and two strokes for each charge with the sentences of imprisonment to run concurrently. For the judgment of the High Court in the present case, see [2001] 3 CLJ 313.

They appealed to the Court of Appeal. Their appeals were dismissed - see [2003] 4 CLJ 409.

They appealed to this court and this is the majority judgment of this court.

Section 87(3) of the Courts of Judicature Act 1964 ( "CJA 1964 ") provides that a criminal appeal to this court "may lie on a question of fact or a question of law or on a question of mixed fact and law. " The position is the same as in the case of the Court of Appeal hearing an appeal from a trial in the High Court as in this case - see s. 50(3) CJA 1964.

In this judgment, we shall first consider whether the trial judge had correctly, in law and on the facts, called for the defence. If he had not, it would not be necessary for us to consider the defence: the appellants are entitled to an acquittal. Only, if we find that the learned trial judge had correctly called for the defence that we will have to consider whether he had correctly convicted the appellants at the close of the case for the defence.

In so doing, this court (and the trial court too), as a court of law, is only concerned with the narrow 'legal issue ie, whether, at the end of the prosecution's case, the prosecution had proved beyond reasonable doubt that, in respect of both appellants, the appellants had sodomised Azizan bin Abu Bakar ( "Azizan ") at Tivoli Villa one night between the month of January until March 1993 and, in respect of the second appellant only, whether he had abetted the offence committed by the first appellant.

In considering whether the defence was correctly called, this court, being an appellate court not only will consider whether all the ingredients of the offences have been proved beyond reasonable doubt, but will also consider whether there have been misdirections or nondirections amounting to misdirections that have caused a substantive miscarriage of justice.

It must be borne in mind that the duty on the part of the prosecution at the close of the case for the prosecution is to prove beyond reasonable doubt, not only, that the offence was committed one night at Tivoli Villa, but also that that "one night " was in the month of January until and including the month of March 1993. Even if it is proved that the incident did happen but if it is not proved "when ", in law, that is not sufficient. This is because the period during which the offence is alleged to have been committed is an essential part of the charge. It becomes even more important when the defence, as in this case, is that of alibi. The appellants must know when (usually it means the day or date, but in this case the period from and including the month of January until and including the month of March 1993) they are alleged to have committed the offence to enable them to put up the defence of alibi.

In this respect we propose to take the bull by the horns.