JUDGMENT

Hepworth J:

The appellant had been convicted in the Sessions Court, Penang, of the offence of robbery under s. 392 of the Penal Code and had been sentenced to two years' imprisonment. From this conviction and sentence the appellant appealed.

There were eight grounds of appeal, three of which raised questions of law and the remainder questions of fact.

The defence was one of alibi. From his grounds of judgment the learned President appears to have considered that there was an onus on the appellant of proving his alibi PARA beyond reasonable doubt. It was submitted on behalf of the appellant that this was a misdirection in law as all that the appellant had to do was to cast a doubt upon the prosecution story. With this submission I agreed.

It also appears from the learned President's grounds of judgment that he thought it was necessary for the evidence of the appellant as to his alibi to be corroborated by independent witnesses. Whereas corroboration would, of course, have strengthened the appellant's defence the appellant's statement on oath alone as to where he was at the time the alleged offence was committed was quite sufficient by itself, if he was to be believed. I therefore agreed with the submission on behalf of the appellant that this also was a misdirection in law.

During the cross-examination of the appellant questions were put to him designed to establish the fact that he had been summoned for assault on a previous occasion and that he was a man who assaulted women in public places. These questions were directed against the character of the appellant and were presumably allowed because Counsel appearing on behalf of the appellant had cross-examined some of the prosecution witnesses as to their characters. It was submitted on behalf of the appellant that this evidence was irrelevant, prejudicial and inadmissible. With this submission I agreed. The law of evidence as to character in this country is different from that in England. The law here is contained in ss. 53 and 54 of the Evidence Ordinance, 1950, and the effect of it is that the fact that an accused person has a bad character is irrelevant unless evidence has been given that he has a good character. Where an accused has not put his character in issue, but has merely attacked the character of the prosecutor in cross-examination, evidence cannot be called by the prosecution to prove that he is a man of bad character (Sarkar on Evidence, 10th Edn., p. 502). As the appellant had not put his character in issue these questions were irrelevant and were gravely prejudicial to the appellant.

With regard to the facts this was essentially a case where seeing and hearing the witnesses in the witness box was a matter of paramount importance. I do not, therefore, propose to comment upon the grounds of appeal raised on questions of fact, except to say two things. Firstly, a witness should not be disbelieved, where the Police have not asked him for a statement, just because he did not on his own go to the Police and make a statement. The learned President appears to have considered that DW5 was not worthy of credit for this reason. Secondly, although it may be that the events took place exactly as described by the prosecution witnesses the prosecution story was nonetheless inherently improbable. In particular the fact that the appellant was well known to the complainant (who had been his mistress) and that, although he was supposed to have put the jewellery into his pocket, upon a search being made a short time afterwards no jewellery was ever discovered on his person or in his house. The learned President does not appear to have given any consideration to the improbabilities in the prosecution story.

In view of the fact that the learned President had misdirected himself in law as to the onus of proof on the appellant in his defence of alibi and as to the evidence required to support such a defence, it was not possible for me to say what the effect would have be