PUBLIC PROSECUTOR;KAMARUL AZAMIN BIN MOHAMAD KAMARUL AZAMIN BIN MOHAMAD; PUBLIC PROSECUTOR

PUBLIC PROSECUTOR;KAMARUL AZAMIN BIN MOHAMAD KAMARUL AZAMIN BIN MOHAMAD; PUBLIC PROSECUTOR

The High Court held the proved facts (touching over clothing and compelling the child to touch the teacher) did not satisfy the statutory and factual threshold for s377E but constituted assault/criminal force with intent to outrage modesty under s354; the Sessions Court erred in relying on the school's internal investigation and the judge's site visit when sentencing; accordingly the conviction was recorded under s354 and the sentence was varied to fines of RM10,000 for each charge given mitigation and first offender status.

Citation
WA-42JSKH-1-01/2019; WA-42JSKS-1-01/2019 (Mahkamah Tinggi)
Parties
Appellant/respondent (cross Appeal): Public Prosecutor; Respondent/appellant (cross Appeal): Kamarul Azamin bin Mohamad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
22 July 2020
Case Number
WA-42JSKH-1-01/2019; WA-42JSKS-1-01/2019 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal and Cross Appeal / High Court Judgment on Appeal From Sessions Court
Outcome
Conviction recorded under amended charge section 354 (assault or use of criminal force with intent to outrage modesty); sentence varied from imprisonment and corporal punishment to monetary fines.
Legal Topics
Assault, Outraging Modesty, Incitement to Gross Indecency, Amendment of Charge Under CPC S316(b)(ii), Judicial Conduct, Use of Administrative/internal Investigations in Criminal Sentencing
Source Language
Malay/English
Criminal Law Sexual Offences Evidence Sentencing Procedural Fairness Assault Outraging Modesty Incitement to Gross Indecency +3 more

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Parties

Public Prosecutor

Appellant/respondent (cross Appeal)

Kamarul Azamin bin Mohamad

Respondent/appellant (cross Appeal)

Procedural Posture

Criminal Appeal and Cross Appeal / High Court Judgment on Appeal From Sessions Court

Legal Issues

  1. 1 Whether conduct amounted to offence under s377E (inciting a child to gross indecency) or to s354 (assault or use of criminal force with intent to outrage modesty)
  2. 2 Proper sentence for conviction under s354 and whether Sessions Court misapplied aggravating material
  3. 3 Whether internal school investigation findings and judge's site visit were admissible or appropriate to inform criminal sentencing and whether such acts compromised fairness of trial

Ratio Decidendi

The High Court held the proved facts (touching over clothing and compelling the child to touch the teacher) did not satisfy the statutory and factual threshold for s377E but constituted assault/criminal force with intent to outrage modesty under s354; the Sessions Court erred in relying on the school's internal investigation and the judge's site visit when sentencing; accordingly the conviction was recorded under s354 and the sentence was varied to fines of RM10,000 for each charge given mitigation and first offender status.

Court Disposition

Conviction recorded under amended charge section 354 (assault or use of criminal force with intent to outrage modesty); sentence varied from imprisonment and corporal punishment to monetary fines.

Orders

  • Sentence varied to a fine of RM10,000 for first charge
  • Sentence varied to a fine of RM10,000 for second charge