Baharudin bin Mat Nor

Baharudin bin Mat Nor

Magistrate's factual findings were supported by credible testimony including child witnesses whose competency, although inquired into after oath, was demonstrably established and any timing irregularity was curable and non‑prejudicial; prior similar incidents were inadmissible and were not relied upon; delay in investigation caused no prejudice; conviction under s354 Penal Code is safe; sentencing was excessive in custody component given the accused's advanced age, demonstrated remorse, financial hardship and rehabilitative prospects, thus imprisonment substituted with a fine of RM5,000.

Citation
AB-41S-4-06/2019 (Mahkamah Tinggi)
Parties
Accused / Appellant: Baharudin bin Mat Nor; Prosecutor / Respondent: Public Prosecutor
Court
High Court
Jurisdiction
Malaysia
Judgment Date
20 February 2020
Case Number
AB-41S-4-06/2019 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal From Magistrate's Court / High Court Judgment on Appeal
Outcome
Conviction affirmed; sentence varied from 10 months imprisonment and RM3,500 fine to a fine of RM5,000 only.
Legal Topics
Outraging Modesty, Child Witness Competency, Section 133 a Evidence Act, Admissibility of Similar Fact Evidence, Delay in Criminal Investigation, Apology as Non‑punitive Measure, Sentence Reduction and Mitigation
Source Language
Malay/English
Criminal Law Evidence Law Sentencing Law Outraging Modesty Child Witness Competency Section 133 a Evidence Act Admissibility of Similar Fact Evidence Delay in Criminal Investigation +2 more

Case Brief

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Parties

Baharudin bin Mat Nor

Accused / Appellant

Public Prosecutor

Prosecutor / Respondent

Procedural Posture

Criminal Appeal From Magistrate's Court / High Court Judgment on Appeal

Legal Issues

  1. 1 Whether child witness competency under section 133A EA must be determined before taking oath
  2. 2 Whether the magistrate's post‑oath competency inquiry vitiates testimony
  3. 3 Admissibility of prior incidents as similar fact evidence

Ratio Decidendi

Magistrate's factual findings were supported by credible testimony including child witnesses whose competency, although inquired into after oath, was demonstrably established and any timing irregularity was curable and non‑prejudicial; prior similar incidents were inadmissible and were not relied upon; delay in investigation caused no prejudice; conviction under s354 Penal Code is safe; sentencing was excessive in custody component given the accused's advanced age, demonstrated remorse, financial hardship and rehabilitative prospects, thus imprisonment substituted with a fine of RM5,000.

Court Disposition

Conviction affirmed; sentence varied from 10 months imprisonment and RM3,500 fine to a fine of RM5,000 only.

Orders

  • Conviction under section 354 Penal Code affirmed
  • Original sentence of 10 months' imprisonment set aside