Harun Hashim SCJ:

This is a reference under s. 66 of the Courts of Judicature Act 1964 on the following question:

Is an accused person, who gives evidence on his own behalf of a defence of alibi who proposes to call no other witnesses in support thereof, obliged to give notice under s. 402A of the Criminal Procedure Code.

The applicant was charged in the Magistrate's Court at Bentong with voluntarily causing hurt to one Markhan Singh a/1 Dnan Singh (complainant) on 16 January 1983 at about 10.45 p.m. in the compound of House No. KT 270 Kg. Ketari, Bentong under s. 323 of the Penal Code. The applicant lives at No. 271. At about 2 p.m. that day, the complainant erected a 9 ft. high zinc fence thus blocking the window of applicant's kitchen. An attempt was made later that day to pull the fence down. the police were called in at about 7.30 p.m. who advised them not to quarrel. At about 10.30 p.m. the complainant heard banging and breaking noises coming from the zinc fence. A free-for-all ensued in the compound of No. 270 between the occupants of Nos. 270 and 271. In all there were about ten persons involved in the fight. Several of them were injured. By the time the police arrived a second time at about 11.10 p.m. the fight was over but they found several blood-stained weapons and blood in the compound of No. 270.

The occupants of both houses are related, the principal occupants being brothers and their families. According to the complainant it was the applicant (a brother) who struck him with a weapon which looked like a sickle. He warded off the blow but cut his left thumb. According to the applicant however, he went to bed at about 10 p.m.. At about 11 p.m. he heard noises and came out and saw Gian Singh and Dalbir Singh who were in his house covered with blood. He asked them what had happened and Gian Singh said they had been attacked by his uncle (the complainant) and son. The police arrived and took them to hospital.

At the trial, the prosecution objected to the defence of alibi put up by the applicant on the ground that no notice had been served on the prosecution under s. 402A of the CPC. The trial Magistrate agreed and in his grounds of decision said he excluded this defence. In the event he found the applicant guilty, convicted him of the offence and sentenced him to one day's imprisonment and fine of RM300 in default 4 months imprisonment.

The applicant appealed against conviction and sentence on the ground that his defence of alibi was wrongly excluded. It was submitted that no notice under s. 402A was necessary where there was no intention to call witnesses other than the accused person himself. The appellate Judge did not agree and dismissed the appeal.

Section 402A CPC reads:

(1) Where in any criminal trial the accused seeks to put forward a defence of alibi. evidence in support thereof shall not be admitted unless the accused shall have given notice in writing thereof to the Public Prosecutor at least ten days before the commencement of the trial.

(2) The notice required by sub-section (1) shall include particulars of the place where the accused claims to have been at the time of the commission of the offence with which he is charged, together with the names and addresses of any witnesses whom he intends to call for the purpose of establishing his alibi.

In PP v. Lim Chen Len [1981] 2 MLJ 41 the accused was charged with extortion under s. 384 of the Penal Code alleged to have been committed in Kuala Lumpur. The defence was one of alibi. The accused gave evidence on oath that at the material time he was in Slim village, Perak.

Four witnesses gave evidence in support of the alibi. The prosecution objected to the admission of such evidence as no notice had been given under s. 402A CPC. The trial notice is an irregularity and not an illegality which is curable by s. 422 of the CPC. On appeal, it was held that the provisions of s. 402A(1) are evidential and not merely procedural and as no pre-trial written not