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(h) The issue is whether Oren’s application to recall Comel should be complied by

Tolstoy.

The law regarding prima facie case in a trial before a magistrate or a sessions court
judge is encapsulated in section 173 of the Criminal Procedure Code. According to
section 173(f)(ii), if there is no prima facie case against Oren, the court shall acquit
him from the offence charged. However, Oren was asked to enter his defence to
“explain doubt in the prosecution’s case” and it clearly shows that a prima facie case
has been established against Oren. This is by virtue of section 173(h)(i) which states
that the accused shall be called to enter on his defence if a prima facie case is
established against the accused. When the accused is called to enter defence, it means
that the prosecution’s case has ended and it is for the accused to submit his case
through the defence counsel.

Comel is the prosecution’s witness. By right, she should not be recalled as she was
already called as the prosecution’s witness and has testified in the court. Besides, the
prosecution has already closed its case.

Nevertheless, as Astro had resigned because of ill-health, he had ceased to exercise
jurisdiction to try Oren’s case based on the judgment held in PP v Goh Chooi Guan
[1978] 2 MLJ 169 where the court decided that the words “ceases to exercise
jurisdiction in it” in section 261 of the CPC includes the situation where a Magistrate
or a sessions court’s judge (now known as judge) resigned and unable to continue
hearing the case.

As the new judge presiding over the case, Tolstoy should allow the application to
recall Comel made by Oren. This is due to the fact that according to proviso (a) of
section 261 of the CPC, Oren has discretion to demand that any witness be recalled.
This discretion is given by the using of the word ‘may’ in the proviso which
superficially means discretion is given to Oren. A demand usually means that it is a
compulsory matter to be followed. As held in the case of PP v Mohamed Azmin Ali
[2000] 7 CLJ 628, once the accused demand to recall the witness, it must be complied
by the court and the court cannot reject it.
Furthermore, by applying the principle held in Mohamed Azmin Ali, Tolstoy should
allow the application made by Oren on the basis that Comel is a material witness in
the case. This is due to the fact that she was the one who claimed that Oren had
punched her. By applying the principle in the abovementioned case, it might be
important for Oren to recall Comel as her demeanour as witness is material to ensure
her credibility in the assessment and consideration of her evidence and therefore
significant for Tolstoy to rehear what she had testified earlier before Astro.

In conclusion, if we were Tolstoy, we would allow Oren’s application to recall Comel
under section 261(a) of the CPC. Although Oren is given the discretion to make the
‘demand’ and Tolstoy has to follow it, the fact that we allowed his application is
actually to ensure that Tolstoy is able to assess Comel’s demeanour personally and to
weigh her evidence accordingly due to the fact that she is one of the main witness for
the prosecution and Tolstoy is the new judge presiding over the case.

(i) The issue is whether Oren’s failure to comply with the requirements under
section 402A of the CPC should be objected.

Generally, a defence of alibi is raised when a person claimed that he is at another
place during the time the crime was committed at the crime scene. This general
definition was given by the court in the case of Ho Cheng Lock [1999] 3 MLJ 625.

Therefore, section 402A provides that if an accused wants to raise the defence of alibi,
they must send a notice to the Public Prosecutor at least ten days before the trial
(section 402A) in which the notice must contain the place where the accused claims to
have been at the time the offence was committed with which the accused is charged,
as well as the names and addresses of the witnesses who the accused wishes to call.

However, Oren’s defence is not considered as an alibi. In fact, his defence is merely a
denial in which he denied that he committed the crime. Nevertheless, he did not deny
that he was inside Chic Shop which is the crime scene at the time the alleged offence
was said to be committed. Although the alleged offence took place ‘outside’ Chic
Shop, the fact that Oren was ‘inside’ Chic Shop is not an alibi to say that he was at
another place. This is due to the fact that no matter he was inside or outside Chic
Shop, he was still within or near the premise of Chic Shop. So, the defence of Oren is
not within the definition of alibi held in Ho Cheng Lock [1999] 3 MLJ 625.

As his defence is not an alibi, it is not an issue for him not to comply with the
requirements laid down in section 402A of the CPC. Therefore, if we were DPP
Omega, we would not object to Oren’s defence for non-compliance with section 402A
of the CPC as his defence is not within the scope of alibi and section 402A is not
applicable to his defence.