where a charge is amended in the course of the trial relating to either the date, time or place set out in the original charge. [24] Parties may argue that there was no miscarriage of justice as 25 eventually the SCJ allowed the Appellant to call his witnesses whom were the committee members of the surau, but that was for 19 nights out of 29 or 30 nights of the Ramadhan month. Then what about the remaining nights? He had not been given the opportunity to inform the Court whether he needed to re-call some of the prosecution witnesses in regard to the remaining nights because s.159 of the CPC was not complied with. I would not say that the defence was purely a bare denial but he had in fact given alibi defence by adducing the imams duty roster as a defence exhibit which the prosecution tried to dispute as the maker was not called. 5 [25] In Dato’ Seri Anwar Bin Ibrahim v PP & Anor Appeal [2004] 3 MLJ 405, Abdul Hamid Mohamad FCJ held: “[11] It must be borne in mind that the duty on the part of the prosecution at the close of the case for the prosecution is to prove beyond reasonable doubt, 10 not only, that the offence was committed one night at Tivoli Villa, but also that that 'one night' was in the month of January until and including the month of March 1993. Even if it is proved that the incident did happen but if it is not proved 'when', in law, that is not sufficient. This is because the period during which the offence is alleged to have been committed is an 15 essential part of the charge. It becomes even more important when the defence, as in this case, is that of alibi. The appellants must know when (usually it means the day or date, but in this case the period from and including the month of January until and including the month of March 1993) they are alleged to have committed the offence to enable them to 20 put up the defence of alibi. [Emphasis added] [26] In the case of Yau Heng Fang v PP [1985] 2 MLJ 335, Mohamad Azmi SCJ (delivering the judgment of the Federal Court) denied that there 25 was a legal burden on the accused with respect to his alibi. It was only a duty to adduce evidence of alibi and once such evidence is adduced, the judge should consider whether the evidence adduced, for the purpose of establishing his alibi has raised a reasonable doubt in the prosecution’s case, and not whether such evidence has created 30 a reasonable doubt as to the accused’s innocence. [27] In the case of Lee Kwai Heong & Anor v PP [2006] 2 MLJ 528 the second appellant’s defence of bare denial of being in the vicinity of the crime scene at the material time without any supporting evidence did not create any reasonable doubt on the prosecution case. The cases cited by the SCJ in 71-73 of the grounds of judgment also discussed the same issue. But here, the Appellant had adduced evidence about the duty roster of the imams for the month of Ramadhan, and it was not just a bare denial. 5 There was no rebuttal evidence from the prosecution that they had investigated the roster or that the content of the roster was incapable of belief. It was only marked as IDD14 when it should have been marked as a proper exhibit because SD5 as the Pengerusi of the surau had testified in court and his name and signature was in the document as the person 10 who verified the document. Moreover, as stated in the case law above, the defence need only to raise a reasonable doubt on the prosecution case and not whether such evidence created a doubt as to his innocence. [28] In the case of Mohamad Radhi B Yaakob v PP [1991] 3 MLJ 169 the 15 Supreme Court held: “It is a well-established principle of Malaysian criminal law that the general burden of proof lies throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence with which he is charged. There is no similar burden placed on the accused to prove his 20 innocence. He is presumed innocent until proven guilty. To earn an acquittal, his duty is merely to cast a reasonable doubt in the prosecution case... To earn an acquittal at the close of the case for the prosecution under s 173(f) or s 180 of the Criminal Procedure Code, the court must be satisfied that no case against the accused has 25 been made out which if unrebutted would warrant his conviction (Munusamy v PP [1987] 1 MLJ 492). If defence is called, the duty of the accused is only to cast a reasonable doubt in the prosecution case. He is not required to prove his innocence beyond reasonable doubt.”. 30 [Emphasis added] [29] Referring again to Mohamad Radhi B Yaakob (supra) the Supreme Court stated further: “In this connection, counsel for the appellant had referred to us the case of PP v Saimin & Ors [1971] 2 MLJ 16 where Sharma J held that the falsity of the defence does not relieve the prosecution from proving the prosecution's case beyond reasonable doubt. We are of the view that whenever a criminal case is decided on the basis of the truth of the 5 prosecution's case as against the falsity of the defence story, a trial judge must in accordance with the principle laid down in Mat v PP [1963] MLJ 263 go one step further before convicting the accused by giving due consideration as to why the defence story, though could not be believed, did not raise a reasonable doubt in the 10 prosecution case. Thus, even though a judge does not accept or believe the accused's explanation, the accused must not be convicted until the court is satisfied for sufficient reason that such explanation does not cast a reasonable doubt in the prosecution case. To satisfy this test it is not so much the words used by the 15 judge, but rather the actual application of the test to the facts of the case that matters. In this case, we found that the learned trial judge offered practically no reason why the defence, notwithstanding its falsity and unconvincing nature, had failed to cast reasonable doubt in the prosecution case, other than to state by way of lip service the duty placed 20 by the law on the defence to earn an acquittal. [Emphasis added] [30] Premised upon the above considerations, this Court found that on 25 this issue of non-compliance with s.402A of the CPC alone, the SCJ had misdirected herself in law and the convictions were therefore unsafe and a re-trial was in order in the interests of justice. Impeachment proceeding 30 [31] I now go on to consider the impeachment proceeding against SD7 that was conducted in respect of the second case. She ruled that the credibility of SD7 was successfully impeached but at the same time she stated that SD7’s evidence corroborated that of SP4. The point of contention was that SD7 was not given the chance to explain the 35 contradictions in her testimony in court and in her s.112 CPC statement (exhibit P15). The correct procedure to impeach the credibility of a witness is as laid out in the case of Muthusamy v. Public Prosecutor [1947] 1 LNS 71. There the Court held: “If the witness admits making the former statement, or is proved to have made it, then the two conflicting versions must be carefully explained to him, preferably by the Court, and he must have a fair and full opportunity to explain 5 the difference. If he can, then his credit is saved, though there may still be doubt as to the accuracy of his memory. This procedure is cumbersome and slow and therefore should not be used unless the apparent discrepancy is material to the issue.” 10 [32] However, if we look at the Notes of Evidence at pages 214-215 of RRJ2(B) the first case, it was glaringly obvious that the SCJ after ruling that there was a contradiction in the evidence and P15, did not explain to SD7 what was the contradiction and the court did not appear to have given her the opportunity to explain the contradiction. But instead, the DPP 15 continued to ask SD7 to confirm that was her statement and continued to cross-examine her. So, was the material contradiction in respect of the dates ie hari Raya Haji on 20 or 22 August 2018 or was it that she told the IO that she was not around in Kuala Kangsar during that time but in court she stated that she was at home in the second incident (20.8.2018)? If the 20 contradiction was about the dates, I did not find that it was a material contradiction because she stated that she was unsure and the police did not reply to her question when she asked for clarification as the statement was being taken. If the contradiction was in respect of the second issue, this was not made known to SD7. The SCJ did not ask SD7 to explain the 25 second issue (contradiction). [33] At the end of the trial, the SCJ ruled SD7’s credibility had been impeached and also stated that her evidence in some aspect corroborated the evidence of SP4. The SCJ also did not in this sense make it clear in 30 paragraph 86 of the grounds of judgment what was the contradiction that she found and whether it was a material contradiction. The impact of a wrong procedure followed by merely asking the witness to confirm the statement was made by him is as stated in the case of Yusoff Bin Sidin [1970] 1 LNS 177 where the Court stated: 5 “… A prosecution or defence witness cannot be merely asked whether he made a previous statement to the contrary to the investigating officer and the matter left there. That answer of the witness cannot be used as evidence. The only way in which the previous statement can be used is by contradicting the witness by such writing and this can be only by drawing his attention to such 10 parts of the recorded statement as are intended to be used for the purpose of contradiction and allowing him an opportunity to explain any contradiction.” Failure to appreciate the defence evidence [34] Lastly, I agree with the submissions of the defence that the SCJ had 15 misdirected herself when she dismissed the evidence given by SD5 and SD6 as immaterial. There was nothing in the records to show that their evidence were inconsistent with or materially contradicted each other. In the case of Noor Azman Abidin v PP [2014] 1 CLJ 58 where the Court of Appeal had stressed upon the issue of integrity in the process of 20 judgment writing, the Court stated: “[12] The hallmark of judgment writing in criminal case is achieved only when there has been a just and fair assessment of the defence story as long as it is not inherently incredible taking into consideration that it is for the prosecution to prove its case beyond reasonable doubt at the 25 prosecution case as well as the defence stage, notwithstanding the fact where the law may require the defence to rebut the charge on balance of probabilities. Lack of proper assessment will in actual fact compromise the integrity of the decision making process, making the conviction unsafe…”. 30 [35] Reference is also made to the case of Davendar Singh a/I Sher Singh v Pendakwa Raya [2012] MLJU 321; [2012] 1 LNS 261, where Hon. Azahar Mohammed JCA (as he then was) stated the following: “[9] Nonetheless, it would be open to us to upset the findings made by a trial judge if such a finding is not supported by evidence or the decision is against the weight of the evidence or there is no proper judicial evaluation of the evidence or there is misdirection in law or the trial court has fundamentally misdirected itself. In this regard, judicial appreciation and evaluation of evidence 5 is at the heart of the duty of the learned trial judge. It is the duty of the learned trial judge to undertake a positive evaluation of the evidence, which includes a careful analysis of the credibility and reliability of the witnesses for the prosecution (see Balachandran v Public Prosecutor [2005] 2 MU 301). It is also his duty to consider the entire evidence presented before him, including the 10 evidence which favours the defence. On what constitutes judicial appreciation of evidence, it is apt to bear in mind the following words of Gopal Sri Ram JCA (as he then was) in Lee Ing Chin v Gan Yook Chin [2003] 2 MU 97: A judge who is required to adjudicate upon a dispute must 15 arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, 20 he must take into account the presence or absence of any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. A trier 25 of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness’ evidence runs the risk of having his findings corrected on appeal. It does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of 30 evidence is the same.” [Emphasis added] [36] In the case of Masih Perviaz (W/Pakistan) v PP [2022] 4 MLJ 676, it is observed that the Court of Appeal confirmed the learned High Court 35 Judge’s findings on the defence in that case which was a bare denial, an afterthought and not credible. Before convicting the accused, the trial judge must give due consideration as to why the defence story, though could not be believed, did not raise a reasonable doubt in the prosecution case. Thus, even though a judge does not accept or believe the accused's explanation, the accused must not be convicted until the court is satisfied for sufficient reason that such explanation does not cast a reasonable doubt in the prosecution case. 5 [37] The burden of proof lies throughout on the prosecution to prove the case beyond reasonable doubt. In the recent case of Rosli Yusof v PP [2021] 7 CLJ 681 the Federal Court held: 10 “[45] It is trite law that it is not the duty of the appellant to prove his innocence or to call a particular witness to support his defence (see Tan Foo Su v. PP [1967] 1 LNS 179; [1967] 2 MLJ 19; and Sandra Margaret Birch v. PP [1977] 1 LNS 114; [1978] 1 MLJ 72). The law places upon the prosecution the burden to prove guilt of the appellant beyond reasonable doubt and not on the appellant 15 to prove his innocence. Well-entrenched in jurisprudence is the rule that the conviction of the appellant must rest not on the weakness of the defence but on the strength of the prosecution. This principle is the corner stone of our criminal law.” [Emphasis added] 20 [38] However, it is still the duty of the court to weigh all the evidence available before it. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. Moreover, as stated in Mohd Radhi Bin Yaakob (supra), “… a trial judge must in accordance with the principle 25 laid down in Mat v PP [1963] MLJ 263 go one step further before convicting the accused by giving due consideration as to why the defence story, though could not be believed, did not raise a reasonable doubt in the prosecution case. Thus, even though a judge does not accept or believe the accused's explanation, the accused must not be convicted 30 until the court is satisfied for sufficient reason that such explanation does not cast a reasonable doubt in the prosecution case”. CONCLUSION [39] The Court found errors of law which justified appellate interference upon the findings and convictions of the Sessions Court. Accordingly, the Court set aside the convictions on all the 4 charges and ordered that the cases be remitted to the Kuala Kangsar Sessions Court to be re-tried by 5 a different Sessions Court Judge. Order accordingly. Dated 9 May 2024 10 Sgd. NOOR RUWENA BINTI MD. NURDIN 15 Judicial Commissioner High Court of Malaya, Taiping 20 Representations For the Appellant: 25 Ahmad Syahmi Bin Amran with Mohamad Hafiz Bin Jalaludin Messrs. Alif, Hafiz & Partners, Ipoh. 30 For the Respondent: TPR Tn. Muhammad Firdaus B. Nor Azlan Pejabat Timbalan Pendakwa Raya Negeri Perak, Taiping. 35