Mohamad Faizal Bin Hashim v Pendakwa Raya (KA-42JSKS(A)-1-05/2025)

This is an appeal against the decision of the Sessions Court convicting the Appellant of an offence under Section 377CA of the Penal Code. The conviction followed a suo motu amendment of the charge by the learned Sessions Court Judge ('SCJ') at the close of the Defence case, whereupon witnesses were recalled to address the Appellant's statutory defence of alibi. Facts and Background 2. The Accused was a police officer in the D9 branch of the Royal Malaysian Police. He was charged with an offence under section 377CA of the Penal Code for inserting his finger into the victim’s vagina at around 12.00 noon on the date 13 August 2019. The date of the alleged offence subsequently became the central point of contention following a late amendment to the charge by the trial court.

It is pertinent to note that the Accused and the victim were father and daughter. The victim at the time of the offence was 5 years and 8 months old and was 9 years and 9 months old at the time of the trial.

It was further alleged that the Accused and the victim’s mother (PW1) were on bad terms and are currently separated. The victim’s mother has attempted to divorce the Accused twice at the Kubang Pasu Syariah Court since 2016 but for some unknown reason failed or was unable to finalise the divorce arrangements. At the time of the offence, custody was given to PW1 with visitation rights every first and third weekend of the month, including overnight stay. The Sessions Court Decision 5. At the close of the Defence case, the learned SCJ suo motu and without any application from the Prosecution decided to amend the original charge by substituting the date of the offence from reading as “13 August 2019” to “between 15 and 17 August 2019”, effectively changing the charge from a definite date to a range of dates.

The amended charge was then read to the Accused, where he pleaded not guilty, and thereafter, the SCJ allowed the Accused to recall witnesses or adduce new evidence. The Accused recalled PW1, PW4 (the victim), PW5 (the investigating officer) and newly called DW4, the Accused’s alibi witness. The Prosecution called PW6 and PW7, both of whom were the Accused’s superiors, to rebut

After the conclusion of the recall, the SCJ found PW4 to be a competent witness whose testimony was detailed, consistent, and convincing although she was of tender age. She clearly described the Accused’s actions using a doll and identified him as the perpetrator.

The SCJ also found that testimony from the medical officer (PW2) confirmed a new tear in the victim’s hymen and redness in the genital area, indicating penetration by a blunt object or body part within 72 hours of the examination.

The SCJ noted suspicious behaviour by the Accused, including an apology he allegedly made to the victim and his use of the police PRS system to monitor the mother's reports against him, which the SCJ viewed as conduct consistent with a guilty mind.

The SCJ dismissed the Accused’s alibi, noting a lack of supporting documentation (such as police pocketbooks or Buku Harian Rasmi Balai) and contradictory testimony from his superiors regarding his official duties. The court also rejected the claim that the mother (PW1) fabricated the charge due to divorce disputes, finding her actions were those of a concerned parent.

For the above reasons, the SCJ convicted the Accused and sentenced him to 11 years of imprisonment and 5 strokes of the cane with counselling during his incarceration.

The procedural chronology of this matter is summarised as follows:

25 February 2020: The Appellant was charged under Section 377CA of the Penal Code for an offence allegedly committed on 13 August 2019 at approximately 12:00 noon.

11 March 2024: At the close of the Prosecution case, the trial court found a prima facie case established strictly in relation to 13 August 2019 and called upon the Appellant to enter his Defence.

Defence Case: The Appellant testified under oath and served a statutory Notice of Alibi under Section 402A CPC (Exhibit IDD18) with supporting witnesses (DW1, DW2, DW4) establishing his presence in Bertam, Pulau Pinang on 13 August 2019.

1 October 2024 (Suo Motu Amendment): On the date fixed for decision following the close of the Defence case, the learned trial judge suo motu amended the date of the charge to 'between 15 August 2019 and 17 August 2019'.

20 May 2025: Following the recall of witnesses and rebuttal evidence, the trial court convicted the Appellant on the amended charge. Parties’ Submissions 13. During the appeal before me, the Accused contends that the SCJ fundamentally erred by amending the charge at the very end of the trial, shifting the alleged date of the offence.

It was argued that this late amendment was highly prejudicial because the entire Defence, including testimony given under oath, had been meticulously prepared to address the specific date in the original charge. Furthermore, the Accused asserts that the Prosecution’s own medical evidence (PW2) actually destroyed their case, where the medical report indicated the hymen tear occurred within 72 hours of the examination, which would mean the injury happened after the date specified in the original charge, making the initial allegation physically impossible.

Additionally, the Accused submits that the charges were a malicious fabrication by PW1 intended to pressure him into granting a divorce, noting their ongoing Syariah Court disputes. He argues that the victim's testimony was inconsistent and that the SCJ erred by not applying section 114(g) of the Evidence Act 1950 regarding the Prosecution's failure to produce critical CIC interview recordings and transcripts. The Accused further maintains that his alibi that he was staying in Bertam, Kepala Batas at the material time was not successfully rebutted by the Prosecution's witnesses, and that his conduct was not that of a guilty mind but rather a concerned father.

The Prosecution submits that all essential elements of the offence under section 377CA of the Penal Code were proven beyond a reasonable doubt, specifically that the Appellant performed a sexual act by inserting his finger into the victim's vagina without her consent. They argue that the victim, despite her young age, was a credible, consistent, and unshakable witness whose testimony was supported by her immediate complaint to her mother.

The Prosecution emphasises that the medical evidence (P9) provided crucial independent corroboration by confirming a new tear in the victim's hymen consistent with the timing of the amended charge.

Regarding the amendment of the charge, the Respondent maintains that the court exercised its lawful discretion and that the Accused was not misled, as time is not a vital ingredient in sexual offences so long as the identity of the perpetrator and the act are established. They characterise the Accused's alibi as a bare denial that was inherently improbable and unsupported by any documentary evidence, such as rental agreements or police pocketbooks. The Respondent further argues that the Appellant's conduct, including his attempt to monitor police reports against him using the PRS system, strongly suggested a guilty mind consistent with his conviction. Decision of this Court 19. A comprehensive evaluation of the Record of Appeal and the submission of counsel reveals a fundamental procedural error in the decision to amend the charge, resulting in a cascade of errors that renders the conviction unsafe. Accordingly, the appeal is allowed for the reasons set out below.

In a criminal appeal, the primary duty of the appellate court is to determine whether the conviction is safe (Mohd Johi Said & Anor v PP [2005] 1 CLJ 389; Htwee Nu Maung v PP [2023] 1 LNS 271). Appellate intervention is warranted where the evaluation of evidence by the trial court is 'plainly wrong' or contrary to established legal principles (Tengku Adnan Tengku Mansor v PP [2022] 1 CLJ 917).

The SCJ erred in unilaterally amending the Date of the Charge 21. The root of the error lies in the trial court's decision to unilaterally amend the charge from '13 August 2019' to 'between 15 and 17 August 2019' at the close of the Defence case.

While the trial judge sought to afford the parties an opportunity to recall witnesses, such a fundamental alteration of the material facts at the close of the defence case inevitably resulted in procedural unfairness and gave rise to a reasonable apprehension of bias.

1.1. The unilateral amendment of the charge was not in line with statutory purposes 23. The unilateral amendment of the charge exceeded the statutory scope and purpose of Section 158 of the Criminal Procedure Code. An examination of the powers conferred under Section 158 demonstrates this boundary.

For ease of reference, section 158 provides as follows:

Any Court may alter or add to any charge at any time before judgment is pronounced.

Every such alteration or addition shall be read and explained to the accused.

On a superficial, literal reading of the section, the section seemingly conveys an absolute discretion to the trial court to amend the charge before a judgment is pronounced. However, our jurisprudence has always cautioned that such powers need to be tempered by fairness not only to the procedural aspects of a trial, but also to the substantive aspects such as the ability of an accused to properly defend and answer to a criminal charge.

The learned SCJ relied on the decision in Guy Boon Leang lwn. PP & satu lagi rayuan [2022] CLJU 589 to establish the court’s powers to unilaterally amend the charge suo motu. Although Guy Boon Leang did make a general pronouncement on the powers of the court to amend a charge, it should be considered obiter dicta, as the ratio of the case discusses the application of section 158 in respect of an appellate court. It does not discuss the extent of trial court powers under that provision. Furthermore, none of the authorities cited in the judgment below (Guy Boon Leang (supra), PP v. Heng You Hang [1949] 1 MLJ 285, PP v. Oh Keng Seng [1979] 2 MLJ 174, PP v Tan Kim Kang [1962] MLJ 388 and PP v Salamah Binti Abdullah and Anor Appeal [1947] MLJ 178) explains the application of section 158 specifically on the issue of unilateral amendments.

The earliest authorities examining Section 158 CPC—notably PP v Salamah Binti Abdullah [1947] MLJ 178 and PP v Heng You Nang [1949] 1 MLJ 285—establish that the framing and alteration of charges remain inherently tied to prosecutorial initiative rather than judicial preference. In Salamah Binti Abdullah, Taylor J cautioned that while amending a charge late in trial is not illegal per se, springing an amendment upon the defence after it has rested works a grave injustice. In the present case, this procedural unfairness was acutely heightened: the material dates were altered suo motu on the very morning scheduled for judgment at the end of the Defence case, fundamentally moving the goalposts after the Defence had fully disclosed and closed its case.

Furthermore, judicial powers under Section 158 CPC must be read in tandem with Section 173(h) CPC (PP v Letchiminan A/L Tarimuthu [2019] 1 LNS 1236). Section 173(h) authorises an amendment only where a prima facie case is made out for a different offence sharing common essential elements, and upon formal application by the prosecution (PP v Che Jan Zinon [2016] 1 LNS 1083). Section 158 CPC does not empower a trial judge to unilaterally alter a fundamental ingredient of the charge—such as the material date of commission—merely to salvage an evidential gap in the prosecution's case.

In consequence, the learned trial judge erred in unilaterally amending the original charge by substituting the date “13 August 2019” to “between 15 and 17 August 2019” at the close of the Defence case. In the absence of the Prosecution’s application to amend the charge, the learned SCJ impermissibly assumed the function of the Prosecution by attempting to cure a fatal deficiency in the trial record, thereby compromising the constitutional division of powers enshrined under Article 145(3) of the Federal Constitution.

The Respondent’s reliance on Pendakwa Raya lwn Tan Sri Mohd Isa bin Abdul Samad [2022] 12 MLJ 747 to justify the amendment is wholly misplaced. In Isa Samad, the amendment to the charge timeframe was made upon a formal application by the prosecution following the testimony of a prosecution witness during the prosecution stage. In stark contrast, the Prosecution in the present case never applied to amend the date of the charge. The learned Sessions Court Judge initiated the amendment unilaterally at the final decision stage after the entire Defence had closed, thereby impermissibly salvaging a fatal gap in the Prosecution's case.

Hence, the Sessions Court exceeded its judicial authority and created an unjust trial environment, thereby prejudicing the Accused's right to a fair hearing.

1.2. The Accused’s notice of alibi was prejudiced by the amended dates 32. The learned SCJ was of the opinion that amendment of the charge was not prejudicial to the Accused’s Defence for the simple reason that date and time are not ingredients to establish an offence of rape. The SCJ relied on the decisions of Law Kiat Liang v PP [1966] 1 MLJ 215, Ku Lip See v. PP [1981] CLJU 155; [1981] 1 LNS 155, Dato’ Seri Anwar Ibrahim v PP [2004] 3 MLJ 405 and PP v Chettuvelu a/l Nani [2007] 6 MLJ 621 to support this point.

As a general principle of criminal procedure, an alteration to the date of an alleged offence is not fatal where time is not a statutory element of the crime, and the accused suffers no prejudice in meeting the charge. However, where a specific alibi defence is pleaded, the exact date ceases to be a mere formal detail and becomes a material, essential element of the charge.

The learned Deputy Public Prosecutor's oral argument, relying on the dissenting judgment of Rahmah Hussain FCJ in Dato' Seri Anwar Ibrahim v PP (supra), requires specific examination. While a dissenting opinion does not carry binding precedential weight under the doctrine of stare decisis, adherence to the majority decision rests firmly on compelling juristic logic, statutory construction, and fundamental principles of constitutional fairness rather than a mere numerical majority.

First, Section 153(1) of the Criminal Procedure Code (CPC) explicitly mandates that a charge "shall contain such particulars as to the time... as are reasonably sufficient to give the accused notice of the matter with which he is charged." The legislature's deliberate use of the mandatory term "shall" cannot be reduced to a mere administrative recommendation. To adopt a blanket rule that dates are immaterial in sexual offences would effectively nullify Section 153(1) CPC, violating the established canon of statutory interpretation that every provision in a written code must be given its full, operative effect.

Second, the materiality of time is directly interwoven with the accused's constitutional right to a fair trial under Article 5(1) of the Federal Constitution and his statutory right to mount an alibi defence under Section 402A of the CPC. An alibi defence is, by definition, time-specific—it requires the accused to establish that he was at a different location at the exact time the crime was committed. If the prosecution is excused from strictly proving the alleged date, or if the trial court is permitted to alter the material dates suo motu after the defence has closed, the statutory right to an alibi under Section 402A CPC is rendered completely illusory. An accused cannot reasonably be expected to defend an indeterminate, shifting timeline years after the event.

Third, regarding the common law rule in R v Severo Dossi (1918) 13 Cr App R 158 (often cited to argue that dates are immaterial), even Lord Atkin explicitly qualified that proposition by carving out the essential exception: "unless it is actually an essential part of the alleged offence." Where an accused relies on a specific, early-disclosed alibi defence, the date ceases to be a mere formal detail and is elevated to an essential, material element of the charge.

Therefore, both on the mandatory statutory language of Section 153(1) CPC and the necessity of safeguarding the constitutional guarantee of a fair hearing, the reasoning of the majority in Dato' Seri Anwar Ibrahim v PP (supra) represents the only juristically sound position in Malaysian criminal jurisprudence.

This principle was specifically reaffirmed in PP v Mohd Faiz Ismail [2022] 1 LNS 3147—a case similarly involving a charge under Section 377CA of the Penal Code—where the High Court ruled that the prosecution is strictly bound to prove the offence as charged, including the material date. When PW1, PW4, and PW5 in our present case were recalled following the amendment, not an iota of evidence was adduced to establish that any incident occurred between 15 and 17 August 2019. PW1 and PW4 conceded they did not know the date, and PW5 confirmed her instructions were strictly to investigate the 13 August 2019 incident. In the complete absence of evidence for the newly substituted dates, no prima facie case existed for those dates under Section 173(h)(ii) CPC, rendering the conviction a nullity.

Furthermore, as held in Shaafie Saibi v PP [2009] 3 CLJ 369, an alleged sexual assault under Section 377CA is a single, individual act and does not constitute a "continuing offence". Framing the amended charge over an open-ended three-day span ("between 15 to 17 August 2019") without proving a specific transaction renders the charge fundamentally vague and defective.

The improbability of the alleged offence occurring between 15 and 17 August 2019 is further reinforced by the uncontradicted testimony of DW2 (the Appellant's sister). PW4 resided at the family house in Changloon from 12 to 17 August 2019 under the direct daily care and supervision of DW2 and her grandparents. DW2 testified that she personally bathed PW4, changed her clothing, and cared for her daily until PW4 was driven home on the evening of 17 August 2019. Throughout this entire five-day stay, PW4 exhibited normal, cheerful behaviour, was never observed to be in physical pain, and made no complaint whatsoever to DW2 or her grandparents regarding any genital discomfort or physical assault. The complete absence of any contemporaneous complaint or signs of physical trauma to the primary caregivers during those dates strongly militates against the probability that an assault occurred during that period.

When the suo motu amendment was ordered, the Accused in our present case had already crafted his Defence around the 13th of August date. The Accused was clearly prejudiced by the amended charge where the Accused had to issue fresh notices within a short span of time to establish his Defence for the new dates. The recalling of witnesses could not meaningfully remedy this prejudice as it afforded the Prosecution an impermissible opportunity to repair the evidential gaps in its case to the detriment of the Accused.

This is further prejudicial as no evidence or testimony was led by the Prosecution to establish the offence was committed between the dates stated in the amended charge. The only clue to the reason the SCJ substituted the dates to “between 15 and 17 August 2019” was because the medical report, P9, suggests that the offence was committed between those dates and the date of 13 August 2019 in the original charge did not fit the timeline established by the Prosecution.

Under Sections 158(2) and 159 CPC, an amendment to a charge is impermissible if it prejudices the accused in his defence or misleads him in conducting his case. In compliance with Section 402A CPC, the Appellant served a formal Notice of Alibi (Exhibit IDD18), specifically establishing his whereabouts in Bertam, Kepala Batas, Pulau Pinang on 13 August 2019. His entire trial strategy and cross-examination were directed at establishing this alibi. By altering the material dates to 15–17 August 2019 after the entire Defence case had closed, the trial court ambushed the Appellant and rendered his established alibi for 13 August redundant. Forcing an accused person to reconstruct an alibi for a newly introduced three-day timeframe years after the alleged event violates the right to a fair trial guaranteed under Article 5(1) of the Federal Constitution.

The Respondent's reliance on Duis Akim & Ors v PP [2013] 9 CLJ 692 to argue that positive identification overrides an alibi defence is equally misplaced. The principle in Duis Akim applies strictly where the identifying witness is credible, unimpeached, and free from ulterior motives. That authority cannot be applied mechanically to displace a statutory alibi under Section 402A CPC where the sole identifying witness is an unsworn five-year-old child whose testimony lacks independent corroboration, whose narrative was repeated by an interested mother amidst matrimonial litigation, and where no Prosecution witness testified to the amended dates of 15 to 17 August 2019. Where the reliability of the identifying witness is fundamentally shaken, an alibi defence cannot be summarily dismissed on the basis of identification alone.

The judicial power under Section 158 CPC cannot be used to conform the charge to conflicting evidence post hoc. Where the prosecution evidence fails to establish the charge as framed, the statutory imperative is acquittal.

For these reasons, the amended charge is irregular, fundamentally defective, and is accordingly set aside.

The Conviction is unsafe under the original Charge 48. Crucially, the trial record reveals no fresh finding of a prima facie case after the charge was amended. Instead, the learned SCJ called for the Defence case immediately thereafter.

Notwithstanding the discussion in the previous heading on the powers of the court to amend a charge under section 158, such a finding is crucial to determine whether the trial judge correctly examined the charge in relation to the facts. In the absence of an explicit judicial determination, the Appellant's submission must be accepted: no prima facie finding was established in relation to the amended charge by the trial court and only the original charge was found to have been established prima facie. Section 173(h) is explicit that only a case that was established as prima facie can call a defence.

Therefore, the following discussion will examine whether a prima facie case was made out in the original charge and whether the Accused was able to rebut the evidence to defend against the original charge to raise reasonable doubt.

2.1 The Victim’s Testimony is uncorroborated by independent Evidence 51. The victim's testimony is intrinsically unsafe to rely upon, as it remains uncorroborated and is contradicted by objective documentary evidence. Although the Court agrees with the Prosecution that the victim was able to particularise the event thoroughly, illustrated through the assistance of a doll, the requirements of section 133A of the Evidence Act 1950 were not met through independent corroboration.

Section 17 of the Sexual Offences Against Children Act 2017 indeed provides that a child should be considered a competent witness. However, it is a long-standing principle that a child’s evidence should be taken with caution as they may at times find it difficult to distinguish reality from fantasy (Chao Chong & ORS v. PP [1959]

While Section 133A of the Evidence Act 1950 allows unsworn child evidence, settled jurisprudence dictates that such testimony must be received with reservation and requires independent corroborative evidence implicating the accused. The learned trial judge erred in treating the testimony of the victim's mother (PW1) as corroboration. PW1 possessed no personal knowledge of the alleged incident and merely repeated what the child allegedly told her. As laid down in PP v Onn Samah [2016] 1 LNS 138 and Khairul Afnizam bin Alwi v PP [2019] 1 LNS 1925, a witness who merely echoes a victim's narrative does not provide independent corroboration; such statements remain hearsay and cannot corroborate the child.

PW1's credibility was further undermined by material contradictions regarding the initial medical examination at Hospital Jitra. During examination-in-chief, PW1 testified that the child was examined at Hospital Jitra by a female medical officer. However, when subjected to cross-examination, PW1 contradicted herself by claiming the examining doctor was a male Chinese officer (Dr Koik Yen Kuang). Such material inconsistency on basic, observable facts surrounding the medical examination demonstrates a lack of veracity and highlights the unsafe nature of relying on PW1's uncorroborated assertions.

The first and foremost contradicting evidence is the medical report (marked as P9). Through PW2, the report confirms that a fresh hymen tear was seen in the victim’s vagina at 12 o’clock and 3 o’clock positions. PW2 explains that “fresh” means the incident occurred within 72 hours from the examination. This medical timeline reveals an irreconcilable conflict with the date specified in the original charge. The medical examination was conducted on 19 August 2019. Therefore, the window of 72 hours would put the possible dates of commission between 16 August and 18 August 2019.

The learned trial judge also failed to subject the evidence to maximum evaluation as required by Section 180 and Section 182A CPC and the Federal Court authority in PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457. Uncontradicted documentary evidence established that the Appellant and PW1 had been living apart since 2016 and were embroiled in hostile fasakh divorce and child custody proceedings in the Shariah Court (Exhibits D14, D16, D17). The record demonstrates a pattern of police reports (Kodiang Report 930/17 - Exh. D6; Kodiang Report 1193/19 - Exh. D4) and Interim Protection Orders (Exh. D15) filed by PW1 during custody disputes to restrict the Appellant's court-sanctioned access to PW4. Crucially, Exhibit D5 (Medical Report dated 13 July 2017) revealed that PW1 had previously taken the child for a genital examination in June 2017 alleging sexual assault, which yielded completely negative findings ("no external injury noted"). This established history of filing unsubstantiated reports during custody disputes points directly to an ulterior motive to fabricate allegations to gain leverage in matrimonial proceedings. Where the evidence gives rise to two reasonable inferences—one pointing to guilt and the other to an ulterior motive arising from a custody dispute—the court is duty-bound to adopt the inference most favourable to the accused (Tengku Adnan Tengku Mansor v PP (supra)).

Furthermore, PW1 admitted during cross-examination that prior to formally lodging the police report (Exhibit P1), she spent approximately two hours in private discussion and consultation with the Investigating Officer (PW5). In cases of alleged sexual assault, the law attaches significant weight to the spontaneity and promptness of the complaint as a test of genuine distress. Where a complainant undergoes a two-hour pre-report consultation with police officers prior to executing a formal report amidst an active Shariah custody dispute, the spontaneity of the allegation is severely compromised. This pre-report deliberation raises a reasonable suspicion of coaching and deliberation, further eroding the credibility of PW1's narrative.

If the original charge of 13 August 2019 is read with this finding, the medical report clearly did not corroborate the victim’s testimony on the commission of the offence on 13 August 2019. It was put forward by the Defence that no other witnesses were able to corroborate the date of the offence as on 13 August 2019 or any other dates whatsoever. Here, the victim was the sole witness to the offence. While the court fully acknowledges the grave and sensitive nature of an allegation involving a child and her biological father, judicial determinations must rest strictly upon proved facts rather than sympathy, sentiment, or speculation. Here, the objective medical and testimonial evidence directly contradicts the timeline of the original charge.

The reliability of the child's evidence is further undermined by the Prosecution's failure to produce the Child Interview Centre (CIC) video recording and transcript. PW5 admitted during cross-examination that a formal CIC interview of PW4 was conducted on 22 August 2019, yet neither the recording nor the transcript was tendered as evidence. Under Ti Chuee Hiang v PP [1995] 3 CLJ 1; [1995] 2 MLJ 433, the contemporaneous CIC recording constitutes primary, objective evidence required to verify whether a child witness was subjected to coaching or leading questions. The unexplained withholding of this recording triggers an adverse inference under Section 114(g) of the Evidence Act 1950, destroying the safety of the conviction.

PW1 cannot serve as an independent corroborative witness. The evidence demonstrates a history of matrimonial conflict and unsubstantiated allegations brought by PW1 during custody proceedings. It is a fundamental rule of evidence that a witness whose credibility is severely compromised cannot provide independent corroboration (Aziz Muhamad Din v PP [1997] 1 CLJ SUPP 523). Her repetition of the victim's statement ('Abah buat') constitutes uncorroborated hearsay and cannot be used to bolster the child's testimony.

For the avoidance of doubt, this judgment does not lay down a general proposition that a parent embroiled in matrimonial disputes is inherently disqualified from corroborating a child's complaint. To hold so would unjustly penalise genuine victims seeking parental protection. The exclusion of PW1's evidence as corroboration in the present case rests strictly on the specific finding that her credibility was independently impeached by a documented pattern of unsubstantiated allegations utilised for collateral advantage in ongoing litigation.

2.2. No Order for Retrial 62. Having determined that the conviction on both the amended charge and the original charge cannot stand, consideration must be given to whether appellate powers under Section 316(a) of the Criminal Procedure Code should be exercised to order a retrial.

It is a settled principle of appellate jurisprudence that an order for a retrial will not be made where it would cause serious injustice or oppression to the accused, or where a retrial would merely serve to afford the prosecution an opportunity to fill in gaps in its evidence (Goi Ching Ang v Public Prosecutor [1999] 1 MLJ 507; Sazali bin Salleh v Pendakwa Raya [2004] 7 MLJ 383). Where the record reveals that the Prosecution failed to adduce any evidence to establish the amended dates (15–17 August 2019), and where its own medical report (Exhibit P9) contradicts the date in the original charge (13 August 2019), a retrial would be both futile and improper.

There is an irreconcilable break in the Prosecution's timeline under the original charge. The time of the alleged offence does not tally with the established evidence, and the Prosecution has accordingly failed to establish guilt beyond a reasonable doubt. The conviction cannot be considered safe.

Forcing the Appellant to undergo a de novo trial years after the alleged event—after he has fully disclosed his defence and statutory alibi under Section 402A CPC—would cause grave prejudice and violate his right to a fair trial under Article 5(1) of the Federal Constitution. Accordingly, the proper and just order is an outright acquittal. Conclusion 66. For the foregoing reasons, the appeal is allowed. The conviction and sentence passed by the Sessions Court on 20 May 2025 are set aside, and the Appellant is hereby acquitted and discharged. Dated 30 July 2026 ..................................................................................... YA Dr. Hj. John Lee Kien How @ Mohd Johan Lee Judge High Court of Malaya Alor Setar For the Appellant : Ravishankar A/LSN Gandhi & Shamsul Nizam Messrs. Rahamat & Co Advocates & Solicitors For the Respondent : Aisyah Al Humayrah Binti Kamaruzaman Deputy Public Prosecutors Attorney-General Chambers Statutes referred to: Section 158, 173 of the Criminal Procedure Code Section 17 of the Sexual Offences Against Children Act 2017 Section 133A of the Evidence Act 1950 Authorities referred to: Aziz Muhamad Din v. PP [1997] 1 CLJ SUPP 523 Chao Chong & ORS v. PP [1959] 1 MLRA 111 Dato’ Seri Anwar Ibrahim v PP [2004] 3 MLJ 405 Duis Akim & Ors v PP [2013] 9 CLJ 692; [2013] 1 MLJ 489 Goi Ching Ang v Public Prosecutor [1999] 1 MLJ 507 Guy Boon Leang lwn. PP & satu lagi rayuan [2022] CLJU 589 Htwee Nu Maung v. PP [2023] 1 LNS 271 Khairul Afnizam bin Alwi v PP [2019] 1 LNS 1925 Ku Lip See v. PP [1981] CLJU 155; [1981] 1 LNS 155 Law Kiat Liang v PP [1966] 1 MLJ 215 Mohd Johi Said & Anor v. PP [2005] 1 CLJ 389; [2005] 5 MLJ 409 Pendakwa Raya lwn Tan Sri Mohd Isa bin Abdul Samad [2022] 12 MLJ 747 PP v Che Jan Zinon [2016] 1 LNS 1083 PP v Chettuvelu a/l Nani [2007] 6 MLJ 621 PP v Letchiminan A/L Tarimuthu [2019] 1 LNS 1236 PP v Mohd Faiz Ismail [2022] 1 LNS 3147 PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457 PP v Salamah Binti Abdullah and Anor Appeal [1947] MLJ 178 PP v Tan Kim Kang [1962] MLJ 388 PP v. Heng You Nang [1949] 1 MLJ 285 PP v. Oh Keng Seng [1979] 2 MLJ 174 PP v Onn Samah [2016] 1 LNS 138 R v Severo Dossi (1918) 13 Cr App R 158 Sazali bin Salleh v Pendakwa Raya [2004] 7 MLJ 383 Shaafie Saibi v PP [2009] 3 CLJ 369 Tengku Adnan Tengku Mansor v. PP [2022] 1 CLJ 917, COA Ti Chuee Hiang v PP [1995] 3 CLJ 1; [1995] 2 MLJ 433