Abdul Malek Ahmad PCA:

The appellant was originally charged for raping his stepdaughter on 4 December 1994 between 12.30am and 2am at the house they were living in, when the victim was aged only 12 years 3 months. The victim's mother was the third wife of the appellant. The appellant's first and second wives stayed in neighbouring houses.

The victim's elder brother also stayed in that house from time to time as he was working somewhere else. It was he who told his stepmother on the date specified in the charge that the victim was in danger, as told to him by the appellant's first wife. He himself had seen the appellant clad in a blue towel sitting on the floor when he came home one night with the victim sleeping with her sarong above her thighs and the sleeping area in disarray.

On the night stated in the charge, with his father and stepmother, he had taken the victim back to his father's house. On the way home, the victim had told them all that had happened and that the appellant had raped her on a number of occasions.

The victim gave birth to a baby boy on 19 June 1995. She maintained that the appellant had raped her many times, including on Hari Raya and Merdeka Day, the last being on 4 December 1994. The victim's mother had seen the appellant fondling her breasts but did not do anything about it. She had testified that she did not see the appellant do anything wrong to the victim.

Blood samples were taken separately from the victim, the appellant and the baby boy and these were handed over to the chemist on 1 February 1996. On 19 February 1996, he had conducted DNA tests on all three blood samples and the results show that the appellant was the father of the baby boy, the probable paternity being 99.5 per cent.

At the close of the case for the prosecution, the court amended the charge to read that the rape took place at the beginning of September 1994 in view of the baby boy's birthdate. The defence was a total denial. He was found guilty and convicted by the Sessions Court for the offence charged and sentenced to 18 years' imprisonment with no whipping in view of his age.

As in the High Court, learned counsel for the appellant argued on three main issues before us. The first was that after the charge was amended, it was not read to the appellant. From the notes of evidence, it is not disputed that the court amended the charge on 19 July 1997 from "4 December 1994" to "the beginning of September 1994" but there is no record of the amended charge being read. Thereafter, it was adjourned to 17 September 1997 when the learned Sessions Court Judge was not available, then to 24 September 1997 but the case did not go on. On 27 November 1997, the learned Sessions Court Judge was on leave but the appellant appeared before another judge where the amended charge was read to him. The case only continued on 22 January 1998.

In Hee Nyuk Fook v. Public Prosecutor [1988] 2 MLJ 360, the applicant was charged with the offence of cheating under s. 420 of the Penal Code, by dishonestly inducing one Wong Won Chong to deliver to the applicant cash of $40,000 for the purchase of a stolen Mercedes Benz motor car. During the course of the trial in the Sessions Court, the charge was amended twice. The first amendment made at the close of the prosecution case related to the particulars of the amount involved, from cash of $40,000 to $37,000. The amended charge was read over to the applicant but not explained to him. The second amendment was made after the close of the defence and submissions by the defence counsel and the prosecution. The charge was amended to include the words "cash cheque No. 271784 for a sum of $37,000". The amended charge was neither read nor explained to the applicant. The applicant was found guilty, convicted and sentenced. His appeal to the High Court was dismissed. The applicant was then granted leave to refer the following questions of law of public interest to the Supreme Court:

(a) where in the course of trial