Mohamad Hamzi bin Mohd Kasmadi v Pendakwa Raya (JA-44-1-01/2026)

The Applicant, Mohamad Hamzi bin Mohd Kasmadi (IC No.: 960616-01-5293), was charged before the Sessions Court in Johor Bahru with three counts of physical sexual assault on a child under section 14(d) of the Sexual Offences Against Children Act 2017 (Act 792) (“SOACA 2017”), in Case No. JA-62JSK-72-06/2023. By a Notice of Motion filed in this Court on 2.1.2026, the Applicant sought the following relief: (a) that all three charges be quashed and/or set aside; (b) that the Applicant be acquitted and discharged from all charges; and, in the alternative, (c) that all criminal proceedings in respect of the three charges be permanently stayed.

The grounds of the application, as set out in the Notice of Motion, the Supporting Affidavit sworn by the Applicant on 2.1.2026, the Supplementary Affidavit sworn on 8.1.2026, and as elaborated in the written and oral submissions, were in substance two: first, that the three charges are defective and unlawful for failing to state the specific date and time of the alleged offences, in breach of sections 153 and 154 of the Criminal Procedure Code (“CPC”); and second, that this deficiency is material and prejudicial because it prevents the Applicant from raising an alibi defence and thus deprives him of a fair trial. The Applicant’s written submission was 3 filed on 22.1.2026 and the Respondent’s written submission was filed on 29.1.2026, and oral submissions were heard on 3.2.2026. I reserved decision at the conclusion of the oral hearing.

Having considered the submissions of both parties and the authorities tendered, I dismissed the application. The three charges are not defective; the particulars of time stated therein are sufficient to give the Applicant notice of the matters with which he is charged; the Applicant has not demonstrated actual prejudice; and the application is, in any event, premature. These are my full grounds.

The three charges against the Applicant are as follows. In order to protect the identity of the child victim, The name and identity card number of the victim shall not be disclosed in these grounds of judgment and are substituted throughout with “XXX” and “YYY” respectively. The charges as reproduced below reflect those substitutions and are otherwise unaltered.

FIRST CHARGE: “Bahawa kamu pada bulan Julai 2022, bertempat di dalam bilik 1 Ibnu Sina, Blok Maahad Tahfiz Al-Quran Al-Marjunidy, No.62, Kampung Parit Marjunit, Benut, dalam Daerah Pontian, di dalam Negeri Johor telah melakukan amang seksual fizikal terhadap seorang kanak-kanak lelaki bernama XXX (No.K/P: YYY) dengan cara memasukkan kemaluan 4 kamu ke dalam dubur kanak-kanak tersebut, oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah 14(d) Akta Kesalahan Seksual Terhadap Kanak-Kanak 2017.”

SECOND CHARGE: “Bahawa kamu pada bulan November 2022, bertempat di dalam bilik 1 Ibnu Sina, Blok Maahad Tahfiz Al-Quran Al-Marjunidy, No.62, Kampung Parit Marjunit, Benut, dalam Daerah Pontian, di dalam Negeri Johor telah melakukan amang seksual fizikal terhadap seorang kanak-kanak lelaki bernama XXX (No.K/P: YYY) dengan cara memasukkan kemaluan kamu ke dalam dubur kanak-kanak tersebut, oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah 14(d) Akta Kesalahan Seksual Terhadap Kanak-Kanak 2017”

THIRD CHARGE: “Bahawa kamu pada bulan Mac 2023, bertempat di dalam bilik 1 Ibnu Sina, Blok Maahad Tahfiz Al-Quran Al-Marjunidy, No.62, Kampung Parit Marjunit, Benut, dalam Daerah Pontian, di dalam Negeri Johor telah melakukan amang seksual fizikal terhadap seorang kanak-kanak lelaki bernama XXX (No.K/P: YYY) dengan cara memasukkan kemaluan kamu ke dalam dubur kanak-kanak tersebut, oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah 14(d) Akta Kesalahan Seksual Terhadap Kanak-Kanak 2017.”

Each charge thus specifies the following particulars: (i) the period of commission: the month of July 2022, November 2022, and March 2023 respectively; (ii) the location: Bilik 1 Ibnu Sina, Blok Maahad Tahfiz Al-Quran Al-Marjunidy, No. 62, Kampung Parit Marjunit, Benut, in the District of Pontian, in the State of Johor; (iii) the identity of the victim: XXX, a male child, bearing KPT No. YYY; and (iv) the mode 5 of commission: the insertion of the Applicant’s penis into the rectum of the victim.

The charges against the Applicant arose from an alleged course of conduct at Maahad Tahfiz Al-Quran Al-Marjunidy, a religious residential school in Kampung Parit Marjunit, Benut, Johor, where the Applicant was employed as a teacher or warden and where the victim, XXX, was a student. The Applicant and the victim were therefore not strangers; on the contrary, the Applicant stood in a position of authority and trust in relation to the child.

The prosecution case at the Sessions Court, which ran for three days on 5.1.2026, 6.1.2026, and 8.1.2026, was that the Applicant on three separate occasions: in July 2022, November 2022, and March 2023: sexually assaulted the victim in Bilik 1 Ibnu Sina within the school compound by inserting his penis into the victim’s rectum. The end-of-prosecution-case decision was fixed for 27.2.2026. In the course of cross-examination during the three-day trial, counsel for the Applicant challenged the credibility of the prosecution witnesses, including the victim, and put to the victim, amongst other things, that the entire allegation was made out of a desire for revenge (“saya ingin balas dendam”). Counsel also noted that a prosecution witness who was a fellow student at the school testified that the 6 alleged incidents did not take place. No alibi evidence or notice of alibi was tendered during the prosecution case.

As to the application before this Court, the Notice of Motion was filed on 2.1.2026, which, as counsel for the Applicant candidly acknowledged during the oral hearing, was before the trial commenced. The Notice of Motion was, however, served on the prosecution only after the prosecution had closed its case following the third day of trial on 8.1.2026. Counsel explained that this course was adopted because the application depended, in part, on the testimony the complainant would give at trial, if the victim had given specific details of date and time, there would have been no need to bring the present application. As it turned out, the victim did not provide specific dates during testimony.

In their Supporting Affidavit (paragraph 9), the Applicant deposed that “tidak ada orang yang munasabah yang akan berupaya membela diri dengan efektif memandangkan ketiga-tiga pertuduhan tersebut (dalam ketiadaan perincian masa) merangkumi julat masa yang terlalu luas iaitu dari jam 12.00 am pada 1 haribulan sehingga 11.59 pm pada 30 haribulan/31 haribulan.” The same averment was elaborated upon in the Applicant’s written submissions. THE ISSUES

Having regard to the Notice of Motion, the affidavits, the written submissions of both parties, and the oral hearing, I identify the following issues as arising for determination: a) Issue 1: Whether the application is premature, having regard to the fact that the Sessions Court had not yet delivered its ruling at the close of the prosecution case, and the prosecution retains the power to amend the charges before judgment is delivered. b) Issue 2: Whether the three charges are defective by reason of the failure to state a specific date and time, in breach of sections 153 and 154 of the CPC, such that they do not give the Applicant sufficient notice of the matters charged. c) Issue 3: Whether the Applicant has been actually prejudiced by the absence of a specific date and time in the charges, in particular by the alleged inability to raise an alibi defence. d) Issue 4: Whether any defect in the charges, if found to exist, is curable under section 422 and section 156 of the CPC, such that the application to quash should in any event be refused. LEGAL ANALYSIS AND FINDINGS

The Respondent submitted that the present application is premature because, although the prosecution had closed its case, the Sessions Court had not yet delivered its ruling at the close of the prosecution case, that decision being fixed for 27.2.2026. The Respondent contended that the prosecution retains the power to amend or to prefer an alternative charge against the Applicant at any time before judgment is delivered by the Sessions Court, and that accordingly the charges as currently framed cannot yet be said to be incurably defective, if they are defective at all.

The Applicant’s position, as explained by counsel in oral submissions, was that the Notice of Motion having been filed before trial began, and served after the prosecution closed its case, the application was timely and properly before this Court. Counsel contended that the prosecution had had three days of trial and still could not pin-point the specific dates of the alleged offences, and that any further amendment at the last minute, on the eve of the decision, would itself be unfair and in bad faith.

I accept the Respondent’s submission on prematurity. The law is well-settled, as decided by the Court of Appeal in Mohd Taufik Peter bin Abdullah lwn Pendakwa Raya [2019] 4 MLJ 542, per Ahmadi Asnawi JCA, that the prosecution possesses a broad discretion to amend, add to, or prefer 9 any alternative charge against an accused at any time before judgment is delivered: “Tidak ada pertikaian bahawa pendakwa raya mempunyai budi bicara yang luas untuk meminda atau menambah atau mengemukakan apa-apa tuduhan alternatif terhadap orang kena tuduh sebelum penghakiman diperturunkan. Juga tidak ada pertikaian bahawa mahkamah boleh meminda atau menambah pertuduhan sebelum penghakiman diperturunkan (s 158(1) KAJ).”

The Court of Appeal in Mohd Taufik Peter further held that the preferment of an alternative charge is a matter of the absolute discretion of the Public Prosecutor, who has wide powers to determine what charges are appropriately laid based on the strength of the facts and evidence. The Applicant did not challenge this as a general proposition; indeed, counsel expressly conceded that charges can be amended at any time, and that the court also has the power to amend them. What the Applicant argued was that any such amendment on the eve of judgment would be conducted in bad faith.

I am unable to accept that argument. Whether any future amendment by the prosecution would be in bad faith is a matter that does not arise for determination now. The Sessions Court has not yet ruled at the close of the prosecution case, and the prosecution has not yet exercised, or declined to exercise, its power of amendment. An application to quash charges before the matter has run its course, and before the trial court has had the opportunity to rule on the sufficiency of the evidence, is premature. The 10 correct course for the Applicant, if aggrieved by the charges, was to raise the issue before the Sessions Court judge, not to pre-empt that court’s ruling by a parallel application to the High Court. That observation notwithstanding, in deference to the full submissions made by both parties and in the interest of providing definitive guidance, I shall proceed to address the substantive issues on their merits.

The Applicant submitted that sections 152, 153 and 154 of the CPC impose mandatory requirements as to the particulars of time and place that a charge must contain. Section 152 CPC requires that: “(1) Every charge under this Code shall state the offence with which the accused is charged.

If the law which creates the offence gives it any specific name the offence may be described in the charge by that name only.

If the law which creates the offence does not give it any specific name so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.

The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.

The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.

If the accused has been previously convicted of any offence, and it is intended to prove that previous conviction for the purpose of increasing the punishment which the Court is competent to award, the fact, date and place of the previous conviction shall be stated in the charge. If the statement is omitted the Court may add it at any time before sentence is passed”. [20] Section 153 CPC provides that: “(1) The charge shall contain such particulars as to the time and place of the alleged offence and the person, if any, against whom or the thing, if any, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.

When the accused is charged with criminal breach of trust or dishonest misappropriation of money it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 164: Provided that the time included between the first and last of such dates shall not exceed one year.

When the accused is charged with an offence relating to publication by electronic means, the place of publication is where the publication is seen, heard or read by any person”. [21] Section 154 CPC further provides that “When the nature of the case is such that the particulars mentioned in sections 152 and 153 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose”. [22] The Applicant contended that the three charges, each specifying only a calendar month without a specific date or time, violated these provisions and were accordingly defective. The Applicant relied principally on Pendakwa Raya lwn Ahmad Harail Adzuan bin Abu Bakar [2023] MLJU 3370 (Sessions Court), where the court stated at paragraph 61: “Pada hemat Mahkamah pembuktian tarikh kejadian berlaku sebagaimana pertuduhan adalah penting khususnya sekiranya pihak pembelaan ingin mengutarakan pembelaan alibi. Adalah tidak adil dan amat memprejudiskan OKT apatah lagi kertas pertuduhan membangkitkan tarikh yang spesifik pada 14.11.2018 namun tiada langsung keterangan menyokong kejadian berlaku pada tarikh tersebut.” [23] The Applicant also relied on Adam bin Hassan lwn Pendakwa Raya [2020] MLJU 2150 (High Court) and Public Prosecutor v Mohd Fadil bin Zainan [2023] 9 MLJ 604 (High Court). [24] The Respondent submitted that the charges are not defective. For sexual offences, time, date, and place are not essential ingredients of the offence; the essential ingredients are the identity of the offender and the sexual act itself. The Respondent placed primary reliance on Public Prosecutor v Muhammad Shan Abdullah [2020] MLJU 2260 (High Court), which held that in sexual offences, non-compliance with section 153 CPC as to the exact time, date, or place will not vitiate the validity of a charge so long as the general particulars of time, date, or place are stated and the accused’s fundamental right to defend his case is not prejudiced. The Respondent further relied on PP v Mohd Faiz Mustaffa [2020] 1 LNS 913 (High Court) for the proposition that it is not necessary for a charge to be accompanied by a specific date and time; it suffices that the charge contains particulars that give the accused notice of the matter charged. Both parties further engaged with the Adam bin Hassan and Ahmad Harail Adzuan authorities, and the Respondent submitted that both are distinguishable on their facts. [25] The starting point is the test that governs the adequacy of particulars in a charge. As the Court of Appeal stated in Mohd Anwar Azmi & Satu lagi lwn PP dan Satu lagi [2018] 1 LNS 2168, cited and applied by the High Court in PP v Mohd Faiz Mustaffa: “[30] Prinsip Undang-Undang adalah jelas bahawa tujuan sesuatu pertuduhan adalah bagi memaklumkan Tertuduh secara jelas dan tepat berhubung perkara dalam pertuduhan terhadap Tertuduh tersebut. Ini bagi membolehkan Tertuduh untuk mengemukakan pembelaannya dengan sempurna dan adil. [31] Thompson CJ dalam kes Teng Kum Seng v Public Prosecutor [1960] 1 LNS 139;[1960] 1 MLJ 509 di mukasurat 518 menyatakan: ‘The real test in all these cases is whether the accused person gets sufficient certain notice of what is charged against him.’“ [26] The real test, therefore, is not whether every conceivable particular appears in the charge, but whether the accused has received sufficient certain notice of the matter with which he is charged. This principle was affirmed by the Federal Court in Dato’ Seri Anwar Ibrahim v PP [2010] 4 CLJ 265, where it was held: “The justice of the case would have been met if the appellant had been fully notified of the charge he faces. He cannot then be said to be at any disadvantage to prepare his defence.” [27] Although the Applicant cited the earlier Federal Court decision in Dato’ Seri Anwar Ibrahim v PP for the proposition that section 153(1) CPC requires time particulars to be proved, I note that the principle in that case, which concerned the proof of particulars already stated in a charge, has been refined in the context of sexual offences, as discussed below. [28] The law in relation to sexual offences is clear. In Public Prosecutor v Muhammad Shan Abdullah, the High Court held at paragraph 29, citing Mohd Hanif Kassim v Public Prosecutor & Anor Appeal [2015] 3 CLJ 984: “in cases where the time, date or place does not constitute an essential ingredient of the offence, mere non-compliance with s. 153 of the CPC on the time, date or place will not vitiate the validity of the charge. As long as the general particulars of the time, date or place are stated in the charge and the exercise of an accused’s fundamental right to defend his case is not prejudiced or derogated, the charge remains a valid charge.” [29] The High Court in Muhammad Shan Abdullah further cited the statement of Atkin J in R v Severo Dossi [1918] 13 Cr App R 158, adopted by the Federal Court in Law Kiat Liang v PP [1965] 1 LNS 81: “From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the offence.” [30] The High Court in Muhammad Shan Abdullah went on to hold, citing Mohd. Rusziani Mislan v Public Prosecutor [2018] 1 LNS 119: “The appellant was not prejudiced by the failure of the prosecution to specify the date of the incident in the charge. The charge provided sufficient particulars for him to prepare his defence. In sexual offences the essential ingredients are the identity of the offender and the sexual act itself.” [31] Similarly, in PP v Mohd Faiz Mustaffa, the High Court in Shah Alam, applying the Court of Appeal authority in Mohd Anwar Azmi and the Federal Court’s holding in Dato’ Seri Anwar Ibrahim v PP, held that it is not a necessity for a charge to be accompanied by specific date and time particulars; it suffices that the charge contains particulars which give the accused notice of the matter charged. The High Court in Mohd Faiz further made clear that section 154 CPC is a supplementary provision: where the nature of the case is such that sections 152 and 153 particulars alone would not give sufficient notice, the charge must include particulars as to the manner in which the offence was committed: “Berdasarkan seksyen 154 tersebut, sekiranya sesuatu pertuduhan itu tidak dapat diberikan butiran sebagaimana yang diperuntukkan di dalam seksyen 152 dan 153, pertuduhan yang dirangka perlulah memperuntukkan butiran dan perincian bagaimana kesalahan itu dilakukan.” [32] Applying these principles to the three charges before me, I am satisfied that they are not defective. Each charge specifies a defined temporal window (a named calendar month in a specified year); a precise location (Bilik 1 Ibnu Sina, Blok Maahad Tahfiz Al-Quran AlMarjunidy, No. 62, Kampung Parit Marjunit, Benut, Daerah Pontian, Johor); the identity of the victim (XXX, with KPT No. YYY); and the mode of commission (insertion of the Applicant’s penis into the victim’s rectum, “dengan cara memasukkan kemaluan kamu ke dalam dubur kanak-kanak tersebut”). The three charges are further staggered in time, spanning July 2022, November 2022, and March 2023, enabling the Applicant to identify which of three distinct periods is alleged in respect of each count. The Applicant is not confronted with a single omnibus charge spanning years, but three discrete charges each pinned to a specific month. [33] For the offence under section 14(d) of SOACA 2017, the essential ingredients are the sexual act and the identity of the offender. Date and time are not essential ingredients of the offence. On the facts of this case, both the identity of the Applicant (who was the victim’s teacher and warden at the school) and the nature and manner of the alleged sexual act are specified with particularity. The Applicant knew where he was working, who the victim was, and what act he is alleged to have committed. The charges, taken as a whole, give the Applicant sufficient certain notice of the matters with which he is charged within the meaning of Teng Kum Seng and Muhammad Shan Abdullah. The Applicant’s submission that the absence of a specific date of the month renders the charges defective is not supported by the authorities and is rejected. [34] The Applicant’s principal authority, Pendakwa Raya lwn Ahmad Harail Adzuan bin Abu Bakar, does not assist him and is plainly distinguishable. In Ahmad Harail Adzuan, the charge specified a precise date, 14.11.2018, but the prosecution then wholly failed to adduce any evidence that the alleged incident occurred on that date. As the Sessions Court observed at paragraph 54: “Pendakwaan merangka pertuduhan bahawa kejadian berlaku pada tahun 14.11.2018. Namun begitu, tiada keterangan dokumentar seperti laporan polis dan keterangan lisan saksi-saksi pendakwaan menunjukkan kejadian berlaku sebagaimana pertuduhan.” Compounding the difficulty, the victim’s evidence was internally contradictory: in examination-in-chief, the victim said that 14.11.2018 was the only occasion (paragraph 55), but this contradicted the police report (P6), which recorded that the alleged conduct had recurred from 2013 through to June 2019 (paragraph 56). No explanation was given for how the date of 14.11.2018 was arrived at (paragraph 57). It was in those specific and narrow circumstances, a charge with a specific date that was not proved, combined with irreconcilably contradictory evidence as to when the incidents occurred, that the Sessions Court remarked upon the importance of proving the date stated in the charge for the purposes of an alibi defence. The remarks of Ahmad Harail Adzuan were directed at the evidentiary failure of the prosecution in a case where a specific date had been pleaded but not proved, and where the prosecution’s own evidence undermined the particulars in the charge. Those circumstances have no parallel in the present case. The charges here have never purported to give a date more precise than a calendar month; there is accordingly no question of a specific date having been alleged but not proved, and no internal contradiction in the prosecution case of the kind that troubled the court in Ahmad Harail Adzuan. [35] The Applicant’s reliance on Adam bin Hassan lwn Pendakwa Raya equally does not advance his case on the charge-defect issue. In that case, the High Court allowed the appeal against conviction and acquitted the accused of an offence under section 14(a) of SOACA 2017. The court’s determination, however, turned on a combination of three specific factors that are entirely absent here: (a) the charge specified a precise date and time window, 11.10.2017, approximately 08:30 hrs to 18:30 hrs, not merely a month;

the accused had formally raised an alibi in his cautioned statement asserting he was at home throughout the stated period; and (c) there was no positive identification of the accused by the victim (SP5), who was a child of only three years and eight months at the time of the alleged incident. The High Court in Adam bin Hassan cited Shaafie Saibi v PP [2009] 3 CLJ 364 (Court of Appeal) for the proposition that where a charge prejudices the accused and a fair trial cannot be conducted for him to raise an alibi, the charge will be defective. That is an uncontroversial statement of principle, but its application in Adam bin Hassan was grounded in the totality of those case-specific features. In the present case, the charges state a month, not a specific date; no alibi was raised by the Applicant in his cautioned statement or at any point during the three-day trial; and the question of identification of the Applicant as the alleged perpetrator does not arise in the same way given that he was the victim’s own teacher and warden at the school. The factual substratum of Adam bin Hassan is therefore fundamentally different from the case at bar, and the decision affords no support to the Applicant’s position on the defectiveness of the charges. [36] As for Public Prosecutor v Mohd Fadil bin Zainan, the Applicant cited it for the general proposition that a charge is pivotal and fundamental, and that a defective charge leads to negative consequences for the accused’s right to a fair trial. I accept that these are correct statements of general principle, and they are not in controversy. However, Mohd Fadil bin Zainan is a case concerning a charge of murder under section 302 of the Penal Code, in which the court ultimately convicted the accused on a lesser charge under section 304(b) by way of an amended charge at the close of the prosecution case. The case has no bearing on the specific question before this Court, namely whether the absence of a precise date in a charge under SOACA 2017 renders the charge defective. The general propositions it states as to the function of a charge do not advance the Applicant’s position beyond what the more directly applicable authorities, Muhammad Shan Abdullah, Mohd Faiz Mustaffa, and the Federal Court’s endorsement in Law Kiat Liang of the Dossi principle, already establish in favour of the Respondent. Issue 3: Whether the Applicant Was Actually Prejudiced [37] The Applicant submitted that the absence of a specific date and time in each charge rendered it impossible for him to mount an alibi defence, and that this impossibility constituted real and serious prejudice. It was argued that the charges, each spanning a full calendar month (30 to 31 days, from midnight on the first day to 23:59 on the last), imposed an unreasonable and impractical burden: no reasonable person could be expected to account for his whereabouts throughout an entire month, still less to summon witnesses to verify his location. It was further submitted that the Applicant could only give instructions to his counsel for cross-examination once the victim had testified, by which point it was too late to mount any meaningful alibi response. The Applicant contended that he was denied the opportunity to raise a legitimate alibi and that this constituted oppression and a failure of justice. [38] The Respondent submitted that the Applicant had not demonstrated any actual prejudice. The Applicant had been given a full opportunity to cross-examine all prosecution witnesses during the three-day trial, including the victim, and had made full use of that opportunity. Even if an amended charge were subsequently preferred, with a more specific date, the Applicant would retain the right to recall and re-cross-examine any prosecution witnesses. In any event, the Respondent submitted, any inability to raise an alibi in the strict sense is not fatal in sexual offence cases of this nature: as held by the Federal Court in Duis Akim & Ors v Public Prosecutor [2014] 1 MLJ 49, an alibi defence cannot prevail over a positive identification by a witness who has no ill motive. The Respondent also pointed out that the Applicant is known to the victim and vice versa, so the question of alibi must be assessed in that context. [39] I find that the Applicant has not established actual prejudice. Two preliminary observations are necessary. First, the question of prejudice under section 156 CPC is whether the accused was in fact misled by the error or omission in the charge, not whether he may theoretically have been prejudiced. Second, the question of an alibi defence is not one that falls for final determination at this stage; it falls to be evaluated, if raised, in the defence case before the Sessions Court. [40] On the evidence and submissions before this Court, the Applicant’s claim of prejudice is asserted but not substantiated. The Applicant has not identified any specific date within July 2022, November 2022, or March 2023 on which he claims he was elsewhere, nor has he identified any witness who could speak to his whereabouts during those periods. His submission that he “could not help” his counsel because he could not recall his whereabouts throughout an entire month is, with respect, a counsel of perfection rather than evidence of actual prejudice. The law does not require an accused to be able to account for every hour of every day of the relevant period; it requires him to have sufficient notice of the case he has to meet. On each of the three charges, the Applicant knows the month, the school, the room, the victim, and the act alleged. That is not a case in which no reasonable person could prepare a defence. [41] Secondly, the present case is not one involving a stranger. The Applicant was the victim’s teacher and warden at the school. The question of identification, which is typically the axis around which alibi evidence operates, does not arise in the same manner as in cases involving strangers or fleeting encounters. As the Federal Court held in Duis Akim & Ors v Public Prosecutor: “However, alibi could not prevail over the positive identification of an accused person especially so in the face of categorical statements coming from credible witnesses who had no ill motives in testifying.” [42] The Respondent was correct to draw this Court’s attention to Duis Akim in order to contextualise the significance of the alibi argument. If the victim, who knew the Applicant well as his teacher and warden, gives a positive identification, and identification is plainly not in dispute between the parties, who differ only on whether the acts occurred at all, then any alibi the Applicant might raise would need to overcome that positive identification. Whether that identification is reliable and whether any alibi raised is credible are matters for the trial court, not for this Court on an application to quash. [43] The point is reinforced by the nature of the relationship between the Applicant and the victim. As discussed under Issue 2, the Applicant was the victim’s teacher and warden at the school. The alibi concern that animated the court in Adam bin Hassan lwn Pendakwa Raya, where there was no positive identification of the accused by a very young child victim, simply does not arise in that form here. The Applicant did not raise a formal alibi at any stage of the proceedings below, whether in a cautioned statement or otherwise, and identification of him as the alleged perpetrator is not a live question between the parties in the way it was in Adam bin Hassan. [44] I also observe that the Applicant’s counsel acknowledged during the oral hearing that the Applicant filed the Notice of Motion on 2.1.2026 but served it only after the prosecution closed its case on 8.1.2026. When asked by this Court why the application was not raised before trial commenced, counsel replied that he needed to see what the victim would say in evidence: if the victim had given specific dates, there would have been no need for the application. This effectively concedes that the Applicant’s alibi concern was contingent on the victim’s testimony, and that the victim’s testimony was awaited before committing to the alibi line of argument. Having gone through the full prosecution case, three days of evidence, full cross-examination of all prosecution witnesses including the victim, without raising any alibi or particularising any prejudice beyond the bare assertion that the months are too wide, the Applicant cannot now credibly maintain that the charges deprived him of a fair trial. [45] I have already distinguished Adam bin Hassan lwn Pendakwa Raya under Issue 2 above, identifying the three specific factors, a charge with a precise date and time range, a formal alibi raised in the cautioned statement, and the absence of any positive identification of the accused by the child victim, that drove the outcome in that case. The principle derived from Shaafie Saibi v PP, cited therein, is that where a charge genuinely prejudices an accused and a fair trial cannot be conducted for him to raise an alibi, the charge may be defective. That is an uncontroversial principle. But its application requires a concrete demonstration of actual prejudice, not a theoretical complaint that a month is too broad a window. None of the specific circumstances that rendered the alibi concern live in Adam bin Hassan obtains in the present case, and no concrete demonstration of equivalent prejudice has been made here. [46] For these reasons, I find that the Applicant has failed to establish actual prejudice within the meaning of section 156 CPC, and that the absence of a specific date and time in the charges does not impair his ability to conduct a full and fair defence. Issue 4: Curability of Any Defect Under Sections 422 and 156 of the CPC [47] Given my finding that the charges are not defective and that the Applicant has not been actually prejudiced, it is strictly unnecessary to address the question of curability. I do so briefly for completeness. [48] Section 156 CPC provides: “No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded, at any stage of the case, as material unless the accused was in fact misled by that error or omission.” [49] This provision was considered by the Federal Court in Ho Ming Siang v Public Prosecutor [1966] 1 LNS 68, where it was affirmed that errors or omissions in the particulars of a charge are not material unless they truly misled the accused. This was observed by the High Court in Muhammad Shan Abdullah [2020] MLJU 2260, drawing on section 156 CPC and Ho Ming Siang. [50] Section 422 CPC, for its part, provides that no finding, sentence, or order of a criminal court shall be reversed or altered on appeal or revision on account of any error, omission, or irregularity in the complaint, summons, warrant, charge, judgment, or other proceedings, unless such error, omission, or irregularity has occasioned a failure of justice. As applied by the Federal Court in Mohd Khir Toyo v PP [2015] 8 CLJ 769: “[55] Hence, unless it is an error or omission in the ingredients, an error or omission in the particulars of the offence is curable.” [51] The High Court in PP v Mohd Faiz Mustaffa, applying Mohd Khir Toyo and the Court of Appeal’s analysis in Mohd Anwar Azmi, confirmed that a defect going only to the particulars of time in a charge, as opposed to a defect in the essential ingredients of the offence, is curable under section 422 CPC. The absence of a specific date and time in the present charges is, at most, an omission in the particulars of the offence, not in its ingredients. On the authority of Mohd Khir Toyo, that omission is curable. Any residual insufficiency could be addressed by amendment under the powers available to both the prosecution and the Sessions Court before judgment is delivered, as the Respondent correctly submitted, and as I have found under Issue 1. [52] I therefore hold, in the alternative, that even if the charges were defective in some respect (which I have found they are not), any such defect would be curable under section 422 CPC and, having regard to section 156 CPC and Ho Ming Siang, would not be material given the absence of any demonstrated misleading of the Applicant. Issue 5: The Applicant’s Remaining Submissions [53] The Applicant made a further argument during oral submissions that even if the prosecution could amend the charges before the Sessions Court’s end-of-prosecution-case ruling, such amendment on the eve of judgment would be unfair and tantamount to bad faith. I decline to make any finding on that submission. No amendment has been made; the Sessions Court has not yet ruled; and the question of whether a future amendment, if made, would be fair or in bad faith is not before this Court. I should not speculate on what has not yet occurred. [54] Counsel for the Applicant also pressed the point, by way of observation rather than formal submission, that a prosecution witness who was a fellow student at the school testified that the alleged incidents did not take place, and that the victim himself in cross-examination stated that his motivation for making the report was revenge. These observations go to the merits of the prosecution case and have no bearing on the present application, which concerns the sufficiency of the charges as framed, not the strength of the evidence. Whether the evidence is sufficient to establish a prima facie case is a matter for the Sessions Court to determine in its ruling on 27.2.2026. CONCLUSION AND ORDER [55] For the reasons set out above, I find and hold: a) The application is premature, the prosecution retaining the power to amend or prefer alternative charges before judgment is delivered by the Sessions Court, as confirmed by the Court of Appeal in Mohd Taufik Peter bin Abdullah lwn Pendakwa Raya. b) The three charges are not defective. Each charge specifies a defined temporal period (a named calendar month), a precise location, the identity of the victim with IC number, and the manner of commission. The real test, whether the Applicant has received sufficient certain notice of the matters charged, is satisfied. In sexual offences under SOACA 2017, date and time are not essential ingredients of the offence, and the absence of a specific date within the month does not vitiate the validity of the charges: Public Prosecutor v Muhammad Shan Abdullah; PP v Mohd Faiz Mustaffa. c) The Applicant has not demonstrated actual prejudice within the meaning of section 156 CPC. The claim of inability to raise an alibi is asserted without any concrete identification of the specific date, location, or witness that would constitute or corroborate such a defence. The Applicant completed a full three-day cross-examination of all prosecution witnesses without articulating any such alibi. d) The authorities relied upon by the Applicant, Ahmad Harail Adzuan, Adam bin Hassan, and Mohd Fadil bin Zainan, are distinguishable on their facts and do not support the Applicant’s case in the present circumstances. e) In any event, any defect going to the particulars of time in the charges would be curable under section 422 CPC and not material under section 156 CPC, having regard to the Federal Court’s holdings in Mohd Khir Toyo v PP and Ho Ming Siang v Public Prosecutor. [56] Accordingly, the application is dismissed. The matter is to proceed before the Sessions Court for determination according to its merits. The Sessions Court’s ruling at the close of the prosecution case, fixed for 27.2.2026, shall proceed as scheduled. 13 April 2026 ATAN MUSTAFFA YUSSOF AHMAD Judge High Court of Malaya Johor Bahru COUNSEL: For the Applicant: Encik Omar Kutty bin Abdul Aziz Puan Yarshasweni a/p Ravanthiran Kuah, Lim Chin & Ooi, No. 80B & 82B, Jalan Kuning, Taman Pelangi, 80400 Johor Bahru. For the Respondent: Puan Nor Fadillah binti Johanuddin Pejabat Penasihat Undang-Undang Negeri Johor, Aras 2, Bangunan Dato’ Ja’afar Muhammad, Kota Iskandar, 79100 Nusajaya, Johor.