Heliliah Mohd Yusof JCA:

[1] The public prosecutor has appealed against the decision of the learned High Court judge in allowing an appeal lodged by the respondent in this appeal before us whereby the conviction and sentence made in respect of the respondent by the Sessions Court judge have been set aside.

[2] The respondent had been charged under s. 377C of the Penal Code which provides:

377C. Whoever voluntarily commits carnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting the other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less then five years and not more than twenty years, and shall also be liable to whipping.

[3] At the time the acts were alledged to have been perpetrated the complainant (or SP7) in this case was a male child seven years of age.

[4] The learned High Court judge in the judgment in allowing the appeal has held as follows:

(i) that there was a failure on the part of the Sessions Court judge to observe the provision of s. 173(f)(i) of the Criminal Procedure Code;

(ii) since s. 133A of the Evidence Act 1950 has not been adhered to, the evidence of the child has not been supported with corroborative evidence. The evidence given by certain witnesses who gave medical evidence were held to be inconclusive.

[5] The two aforementioned matters constitute the issues raised in this appeal.

First Issue: Section 173(f)(i)

[6] At the conclusion of the case for the prosecution held before the Sessions Court judge who had conducted the trial he had merely recorded the following in the notes of proceedings "Pembelaan dipanggil". In the grounds of judgment written by him the following statements could, inter alia, be found:

At the end of the prosecution's case, I have to decide whether the prosecution had proven a prima facie case.

[7] On this issue the learned High Court judge has upheld the averments of the learned counsel for the respondent that the trial judge had failed to record expressly or more specifically in the notes of evidence a finding at the conclusion of the case for the prosecution that a prima facie case had been made out as against the accused (the respondent in this appeal). It was the contention of the learned counsel that this had resulted in a misdirection in law which had prejudiced the respondent. In appraising this issue pertaining to the alleged non-observance of the provision of s. 173(f)(i) of the Criminal Procedure Code (CPC) it is rendered necessary to reproduce verbatim the observation of the learned High Court judge where he stated:

Tuan Hakim hanya menyatakan fakta prima facie dalam alasan penghakiman beliau di muka surat 55 Rekod Rayuan iaitu 'at the end of the prosecution's case, I have to decide whether the prosecution had proven a prima facie case'. Pada pendapat Mahkamah ini tidak memadai. Ia perlu dicatat dalam nota prosiding semasa prosiding berjalan dan bukan dalam alasan penghakiman yang dibuat kemudian. Beliau sepatutnya mencatatkan dalam nota prosiding pendakwaan berjaya membuktikan satu kes prima facie terhadap tertuduh.

[8] The above mentioned proposition of the learned judge appears to be a categorical interpretation of s. 173(f)(i) CPC that it is imperative for the Sessions Court judge to record in the notes of proceedings a finding that a prima facie had indeed been made out at the close of the case for the prosecution. In other words what is being pronounced here is more akin to a technical default of not writing down in the notes of proceeding that a prima facie case had been established at the conclusion of the case for the prosecution.

[9] It would appear that the learned High Court judge had unreservedly accepted the submission of the learned counsel for the respondent that the Sessions Court judge, in failing to record expressly in the notes of evidence that he had found that a prima facie had bee