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44 [87] According to section 402A of the CPC if the accused relies on the defence of alibi, the accused must give notice in writing to the Public Prosecutor at least ten (10) days before the start of the trial. The notice must state the place the accused was at the time of the commission of the offence and the names and addresses of any witnesses whom the accused intends to call for the purpose of establishing his alibi. [88] In Rangapula & Anor v. Public Prosecutor [1982] 1 MLJ 91, it was held that the non-compliance with the requirements of section 402A of the CPC will render the evidence in support of alibi inadmissible. [89] The Supreme Court in Hussin bin Sillit v. Public Prosecutor [1988] 2 MLJ 232, held that for the purpose of compliance with section 402A of the CPC, actual written notice containing particulars of the alibi must be given to the Public Prosecutor within the prescribed period. [90] The Court in Public Prosecutor v. Lim Chen Len [1981] 2 MLJ 41, laid down the law explicitly pertaining to section 402A of the CPC in these salient words: “(1) having regard to the clear words in section 402A(1), particularly the words ‘shall not be admitted’ and ‘shall have given notice’, evidence in support of a defence of alibi, which previously was admissible, is now no longer admissible in evidence unless the condition precedent as to a pre-trial notice has been complied with. Like section 399(i), the provisions of section 402A(1) are evidential and not merely procedural, and unless the defence has given at least ten days written notice before the commencement of the trial, no evidence in support of a defence of alibi can be admitted in evidence. The meaning of ‘commencement of the trial’ is the commencement of the actual trial itself and not the date when the accused was first charged in court.”
45 [91] So, at least ten (10) days before the actual trial the appellant here must give notice of the alibi defence in writing to the Public Prosecutor. This was not strictly complied with by the appellant. [92] The pre-requirement of a pre-trial notice under section 402A of the CPC is mandatory and the Courts in Malaysia have no discretion whatsoever to waive such a mandatory requirement. [93] It is germane, at this juncture, to refer to the Supreme Court case of Vasan Singh v. Public Prosecutor [1989] 2 CLJ 402. There Harun Hashim, SCJ interpreted section 402A of the CPC and lucidly laid down the law pertaining to an alibi defence in these trenchant terms (see pages 404 to 406 of the report): “Section 402A was added to the Criminal Procedure Code in 1976. Until then, accused persons were free to put up an alibi defence and to call witnesses in support of the alibi thus creating an element of surprise at the trial. The object of section 402A is aimed at this mischief. It seeks to deprive accused persons of the privilege of keeping back a defence of alibi until the last moment. Clearly the object is to prevent the accused person from keeping back not merely the names of any witnesses he might call in support of the alibi, but also the fact that an alibi is to be raised. The question is, has the legislature achieved these objectives in section 402A. There is certainly now abundant authority that if witnesses are to be called in support of an alibi defence, then the requirements of a pre-trial notice must be complied with – strictly. What then is the position where the accused himself is the only witness to the alibi. It is obvious, however, that an alibi defence will not be a simple statement of: ‘I did not do it. I was not there. I was elsewhere.’ That would be evidence of a bare denial. To establish his alibi, the accused must disclose where he was at the time of the alleged offence and what he was doing. He could be travelling at the time and the only evidence he has is a ticket or an endorsement on his passport or, as here, he was in bed. That would be evidence in
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Page 31 and 32: 31 GEN-2 motorcar had just been use
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Page 35 and 36: 35 Pilah-Seremban road some 15 kilo
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