AZMI BIN SHARIFF [Polis Diraja Malaysia (PDRM)]

AZMI BIN SHARIFF [Polis Diraja Malaysia (PDRM)]

Rape convictions (two counts) could not stand because the evidence did not reliably establish penile penetration and the complainant's testimony on that point was inconsistent; however conviction for sexual connection by object (s.377CA) and for outrage of modesty (s.354) were supported by evidence. Sentencing for the s.377CA offence was manifestly excessive and was reduced to five years with whipping withheld; the s.354 conviction and five‑year sentence were upheld and both sentences were ordered to run concurrently from date of the appellate decision.

Citation
BA-42S-3-02/2024 (Mahkamah Tinggi)
Parties
Appellant: Azmi bin Shariff; Respondent: Pendakwa Raya
Court
High Court
Jurisdiction
Malaysia
Judgment Date
18 July 2024
Case Number
BA-42S-3-02/2024 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal / Appeal Judgment (high Court)
Outcome
Appeal allowed in part and dismissed in part; rape convictions (two counts under s.375/376) set aside; conviction under s.377CA and s.354 affirmed; sentence for s.377CA reduced to 5 years imprisonment and whipping not imposed; s.354 sentence of 5 years upheld; sentences to run concurrently.
Legal Topics
Rape (s.375/376), Sexual Connection by Object (s.377 Ca), Outrage of Modesty (s.354), Credibility of Complainant With Intellectual Disability, Investigation Adequacy, Whipping (corporal Punishment)
Source Language
Malay/English
Criminal Law Sexual Offences Sentencing Evidence Rape (s.375/376) Sexual Connection by Object (s.377 Ca) Outrage of Modesty (s.354) Credibility of Complainant With Intellectual Disability +2 more

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Parties

Azmi bin Shariff

Appellant

Pendakwa Raya

Respondent

Procedural Posture

Criminal Appeal / Appeal Judgment (high Court)

Legal Issues

  1. 1 Whether convictions for rape under sections 375/376 are supported where evidence only establishes insertion of finger and inconsistent testimony regarding penile penetration
  2. 2 Whether the complainant's intellectual disability affects credibility and competence to testify
  3. 3 Whether hearsay evidence from relatives (SP2, SP3) was properly considered and its weight

Ratio Decidendi

Rape convictions (two counts) could not stand because the evidence did not reliably establish penile penetration and the complainant's testimony on that point was inconsistent; however conviction for sexual connection by object (s.377CA) and for outrage of modesty (s.354) were supported by evidence. Sentencing for the s.377CA offence was manifestly excessive and was reduced to five years with whipping withheld; the s.354 conviction and five‑year sentence were upheld and both sentences were ordered to run concurrently from date of the appellate decision.

Court Disposition

Appeal allowed in part and dismissed in part; rape convictions (two counts under s.375/376) set aside; conviction under s.377CA and s.354 affirmed; sentence for s.377CA reduced to 5 years imprisonment and whipping not imposed; s.354 sentence of 5 years upheld; sentences to run concurrently.

Orders

  • Convictions for Pertuduhan Pertama and Pertuduhan Kedua (s.375/376) quashed and set aside
  • Conviction for Pertuduhan Ketiga (s.377CA) upheld; sentence reduced from 15 years and 1 stroke to 5 years imprisonment; whipping not imposed