Baharudin bin Mat Nor

Baharudin bin Mat Nor

The High Court held the magistrate did not commit an appealable error: child witnesses were competent and any irregularity in holding the s.133A inquiry after oath was curable and caused no prejudice; prior incidents were inadmissible and were not considered; delay in investigation did not prejudice the defence...

Source-derived case information.

Citation
AB-41S-4-06/2019 (Mahkamah Tinggi)
Parties
Appellant: Baharudin bin Mat Nor; 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 / Appeal From Magistrate Court Conviction and Sentence
Outcome
Conviction affirmed; sentence varied — imprisonment set aside and replaced with a fine of RM5000
Legal Topics
Outraging Modesty (s.354 Penal Code), Section 133 a Evidence Act (child Oath), Competence of Child Witness, Admissibility of Similar Fact Evidence, Delay in Investigation, Sentence Reduction, Apology Letter as Non Punitive Measure
Criminal Law Evidence Sentencing Child Witnesses Outraging Modesty (s.354 Penal Code) Section 133 a Evidence Act (child Oath) Competence of Child Witness Admissibility of Similar Fact Evidence +3 more

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Summary, issues, holding and outcome

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Parties

Baharudin bin Mat Nor

Appellant

Public Prosecutor

Respondent

Procedural Posture

Criminal Appeal / Appeal From Magistrate Court Conviction and Sentence

Legal Issues

  1. 1 Whether competency of a child witness under section 133A EA must be determined before taking oath or may be cured if determined after oath
  2. 2 Whether prior incidents involving other children were admissible as similar fact evidence
  3. 3 Whether delay in police investigation prejudiced the accused

Ratio Decidendi

The High Court held the magistrate did not commit an appealable error: child witnesses were competent and any irregularity in holding the s.133A inquiry after oath was curable and caused no prejudice; prior incidents were inadmissible and were not considered; delay in investigation did not prejudice the defence given overwhelming evidence; conviction under s.354 PC was safe. However, sentencing was excessive in context and was varied under s.316 CPC to substitute imprisonment with a RM5000 fine based on mitigating factors (age, remorse, apology, financial hardship, rehabilitation) and discretionary sentencing principles under s.354 PC and CPC.

Court Disposition

Conviction affirmed; sentence varied — imprisonment set aside and replaced with a fine of RM5000

Orders

  • Conviction of the accused under section 354 Penal Code affirmed
  • Sentence of 10 months' imprisonment set aside and substituted with a fine of RM5000