Mohamed Azmi J

This is an appeal by the Public Prosecutor against the order of acquittal and discharge of the accused made on August 30, 1979 by the Magistrate at Kuala Lumpur. The accused was charged for extortion under section 384 of the Penal Code. He was alleged to have extorted a sum of $500 from one Low Tuck Seng on October 16, 1978 at about 2.00 p.m. at No. 22, Jalan Walter Grenier, off Jalan Imbi, Kuala Lumpur.

In this case, the learned Magistrate found that the prosecution had established a prima facie case under section 384 of the Penal Code which, if unrebutted, would warrant a conviction. The defence was one of alibi. It was the contention of the accused that at about 2.00 p.m. on October 16, 1978, i.e. when the alleged offence was committed, he was in Slim Village, Perak, and was supervising workers in a rubber estate owned by his father and, as such, he could not have committed the offence at Kuala Lumpur. Four witnesses, Sadimin bin Sintono and Krishnan s/o Munusamy including the accused (DW1) and his wife Loke Leng How (DW2), gave evidence in support of the alibi. According to Sadimin (DW3), an estate labourer working for the accused, he saw the accused in the rubber estate at Slim Village on the morning of October 16, 1978; and at about 2.00 p.m. after finishing work, he left the rubber estate with the accused. Krishnan (DW4), a weed-killer working in the same estate, also testified that the accused was working in the estate on that material date from morning till 2.00 p.m. Loke Leng How also corroborated the accused's alibi. The learned Magistrate found that although there were discrepancies in the evidence of the accused, Sadimin and Krishnan, they were not material enough for their credibility to be impeached. She was satisfied that the defence had established the defence of alibi and that a doubt had been raised in the prosecution case, and accordingly she acquitted and discharged the accused.

The main bone of contention in this appeal is on the issue of admissibility of evidence in support of the defence of alibi in view of the failure of the defence to give notice in writing to the Public Prosecutor at least ten days before the commencement of the trial as required by section 402A of the Criminal Procedure Code. At the trial, objection was raised by the Prosecuting Officer on this point after the accused's wife, Loke Leng How, had given her evidence-in-chief. The Magistrate overruled the prosecution's objection and admitted all evidence in support of the alibi. In dismissing the prosecution's objection, the learned Magistrate had this to say in her grounds of judgment:

"The defence of the accused was the defence of alibi. Section 402A(1) of the Criminal Procedure Code makes it necessary for the accused to give notice of alibi to the prosecution 10 clear days before the commencement of the trial. This was, however, not done by the defence in this case. The learned Prosecuting Officer submitted that the word 'shall' in the section implied that it was mandatory for the notice to be given 10 clear days before the commencement of the trial but the learned defence counsel submitted that it was not mandatory. He cited the authority Ng Yee [1953] MLJ 250. In the interest of justice I drew an analogy from that case to the invoking of section 399 of the Criminal Procedure Code. It was held that the admission as evidence of a report by a Government Chemist which was not served on an accused 10 days before the trial as required by section 399 of the Criminal Procedure Code is an irregularity and not an illegality which is curable by section 422 of the Code. As such, I allowed the defence to put up a defence of alibi."

The case of Ng Yee v Public Prosecutor [1953] MLJ 250, which was relied upon by the learned Magistrate, concerns the admissibility of Government Chemist Report under section 399(i) of the Criminal Procedure Code. Under the provision of subsection (1) of section 399, the report of certain Government of