[ ] Muhammad Shan Bin Abdullah

AA-42LB-1-03/2019 Kand. 23 31/07/2023 09:25:11 5 IN THE MATTER OF THE HIGH COURT IN MALAYA IPOH, PERAK DARUL RIDZUAN CRIMINAL APPEAL NO: AA-42LB-1-03/2019 10 BETWEEN PUBLIC PROSECUTOR … APPELLANT AND 15 MUHAMMAD SHAN ABDULLAH … RESPONDENT JUDGMENT 20 [1] After a trial conducted over four days on 18.12 2018, 19.12.2018, 10.1.2019 dan 11.1.2019 on a charge set out below, and after hearing submissions on 7.2.2019, the learned Sessions Court Judge had on 27.2.2019 decided that the prosecution had failed to prove a prima facie case and the Respondent was 25 acquitted and discharged without calling for his defence. The charge was: “Bahawa kamu, pada 04/01/2018 jam lebih kurang 10:00 pagi bertempat di dalam bilik Nombor 2, Rumah Kongsi Nombor 461, Batu 3 Jalan Pahang, Dalam Daerah Batang Padang, di dalam Negeri Perak, telah melakukan amang seksual dengan cara menyentuh 30 kemaluan xxxxx, oleh yang demikian, kamu telah melakukan suatu kesalahan yang boleh dihukum dibawah seksyen 14 (d) Akta Kesalahan-Kesalahan Seksual Terhadap Kanak- Kanak 2017.” (hereinafter referred to as the said “Charge”) 1 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 [2] The prosecution appealed and in their Petition of appeal (AR Vol 1 pages 7 to 8) asserted inter alia that: i) the learned Sessions Court Judge erred in law and fact in finding that the prosecution had failed to prove a prima facie case against the 40 Respondent on the said Charge and acquitting and discharging the Respondent without calling upon the Respondent to enter on his defence; ii) the learned Sessions Court Judge erred in law and fact in deciding that the said Charge could not be proved based upon the evidence that 45 was produced during the trial; iii) the learned Sessions Court Judge erred in law and fact in deciding the prosecution having failed to prove a specific date and time the incident took place is a defect in the prosecution case that could not be rectified; 50 iv) the learned Sessions Court Judge erred in law and fact in placing reliance upon the authority of Willie Sodoi v PP [1994] 3 CLJ 515 when the accused in that case was charged under section 380 of the Penal Code and not section 14 (d) of the Sexual Offences Against Children Act 2017 (Act 792) (hereinafter called “Act 792”): 2 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal 55 v) the learned Sessions Court Judge erred in law and fact in making a finding that the prosecution had failed to prove the identity of the victim in the case; vi) the learned Sessions Court Judge erred in law and fact in finding that there is a mistake in the identity of SP9 because she was not identified 60 by the witnesses and the name of SP’s father was different in the said Charge although SP9’s name and identity card number was the same; vii) the learned Sessions Court Judge erred in law and fact in deciding that the authenticity of Exhibit P10A was not proved following the failure by Investigating Officer to produce the certification under Section 6 (3) of 65 the Evidence of Child Witness Act 2017 (sic – should be 2007) even though the recording officer was called to give evidence; viii) the learned Sessions Court Judge erred in law and fact in finding that the element of physical sexual assault in the said Charge had been proven by the prosecution but failed to call upon the Respondent to 70 enter on his defence. Appeal [3] In hearing this appeal, the Court bears in mind that it has been held by the 75 Federal Court in Dato’ Seri Anwar bin Ibrahim v Public Prosecutor and another 3 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal appeal [2004] 3 CLJ 737 that: “Clearly an appellate court does not and should not put a brake and not going any further the moment it sees that the trial judge says that is his finding of facts. It should go further 80 and examine the evidence and the circumstances under which that finding is made to see whether, to borrow the words of HT Ong (CJ Malaya) in Herchun Singh’s case ‘there are substantial and compelling reasons for disagreeing with the finding.’ Otherwise, no judgment would ever be reversed on question of fact and the provisions of s 87 of the CJA 1964 that an appeal may lie not only on a question of law but also on a question of fact or 85 on a question of mixed fact and law would be meaningless.” The Sexual Offences Against Children Act 2017 Act 792 [4] The Court also bears in mind that the Respondent was charged under Act 90 792 which has certain special features such as an enhanced sentence to be meted out upon conviction against a person who is in a relationship of trust with the child, and if the person is a male he can be subject to whipping even if he is above 50 years of age, and the evidentiary requirement is less stringent whereby the accused can be convicted on the basis of the uncorroborated evidence of the child 95 given upon oath or otherwise. [5] The preamble of Act 792 provides that it is legislated specifically to deal with certain sexual offences against children and is in addition to other sexual offences against children and their punishment in other written laws, and in relation 100 to it is to provide for the administration of justice for children and connected matters. It has been recently decided by the Federal Court that the underlying 4 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal purpose of an Act which is self evident in its long title and preamble ought to be taken into account when interpreting and construing any written law, see Selva Vinayagam Sures v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2020] 1 105 LNS 1701. [6] Act 792 applies to a child who is under the age of eighteen years and where this Act relates to any other written law, to a child of such age as specified in such written law. 110 [7] Section 14 and in particular section 14 (d) under which the Respondent was charged is reproduced below: “Any person who, for sexual purposes— 115 (a) touches any part of the body of a child; (b) makes a child touch any part of the body of such person or of any other person; (c) makes a child touch any part of the child’s own body; or (d) does any other acts that involve physical contact with a child without sexual intercourse, 120 commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding twenty years and shall also be liable to whipping. Explanation 1—The act of touching may involve the act of touching with any part of the body or with an object and may be done through anything 125 including anything worn by the person touching or by the child touched. 5 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal Explanation 2—In determining what constitutes sexual purposes, the court may take into consideration, among others, the part of the body that is touched, the nature and extent of the act of touching or the physical contact 130 and all other circumstances surrounding the conduct. [8] As can be seen in the provisions of section 14 above, Parliament has made it clear its abhorrence for such offences where it has legislated that a mere touching of any part of the body of a child or even with an object for sexual purposes commits 135 an offence and shall on conviction be punished with imprisonment for a term not exceeding twenty years and shall also be liable to whipping. [9] Such abhorrence can also be seen in the provisions of section 25 of this Act where it is expressly provided that “Notwithstanding paragraph 289(c) of the 140 Criminal Procedure Code, if a person convicted of any offence under this Act is a male whom the court considers to be more than fifty years of age, he may still be punishable with whipping.” [10] Children under the age of 18 years are usually under the care, supervision 145 and control of persons who are entrusted to look after them. The care and concern for the welfare and wellbeing of a child to be protected from sexual offences such as those set out in section 14 above, permeates through this Act and in section 6 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16, there is an added penalty for those who are in a relationship of trust with the child. The provisions are as follows: 150 “(1) If a person who commits any offence under this Act or any offence specified in the Schedule against a child, is in a relationship of trust with the child, such person shall, in addition to the punishment to which he is liable for such offence, be punished with imprisonment for a term not exceeding five years and shall also be punished with 155 whipping of not less than two strokes. (2) In this section, a person is said to be in a relationship of trust with a child if the child is under his care, supervision or authority, including but not limited to— 160 (a) a parent, guardian or person who is related through full-blood or half-blood, or through marriage or adoption, including de facto adoption; (b) a person who looks after one or more children for valuable consideration for any period of time; (c) a teacher, lecturer or warden of a kindergarten, school, public institution of higher 165 learning or private institution of higher learning; (d) any person providing healthcare services in a Government healthcare facility or private healthcare facility as defined in section 2 of the Private Healthcare Facilities and Services Act 1998 [Act 586]; (e) a coach; and 170 (f) a public servant of whatever rank in the course of his duty under any written law in respect of the child.” [11] In dealing with the offences against children, there is a relaxation of the evidentiary requirements and this can be seen in sections 17 and 18 of the said 175 Act and are reproduced below: 17. “Notwithstanding anything contrary in any other written law, in any proceedings against any person relating to any offence under this Act, or any offence specified in the Schedule where the victim is a child, a child is presumed to be competent to give evidence unless 180 the court thinks otherwise.” 18. “Notwithstanding anything contrary in any other written law, in any proceedings against any person relating to any offence under this Act, or any offence specified in the 7 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal Schedule where the victim is a child, the court may convict such person of such 185 offence on the basis of the uncorroborated evidence of a child, given upon oath or otherwise.” [12] At this juncture it is appropriate to set out how the evidence of a child witness 190 may be given pursuant to the Evidence of Child Witness Act 2007 (Act 676):- “3 (1) A child witness may, at any stage of a trial, give evidence in any one or a combination of the following manner: (a) by having a screen between him and the accused or a child 195 charged with any offence; (b) by live link; or (c) by video recording. (2) For the purposes of this section, any evidence given under subsection (1) shall 200 be deemed to be evidence given in an open court.” Prosecution’s case [13] PW1, worked in the Jabatan Kebajikan Masyarakat in Tapah. She was the 205 complainant in this case and was the one who lodged the police report on the incident which happened to the victim after she was informed of it by PW5, who was the Headmaster of Sekolah Kebangsaan Pahang Tapah (HM Saidi). [14] The facts of the case show that a witness (PW2), a neighbour to the 210 Respondent and who had been staying in the same neighbourhood for 8 years (AR Vol 2 page 38 line 227) before the Respondent came in 2017 and who saw the 8 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal incident, acted by informing HM Saidi following which HM Saidi informed the social welfare officer, PW1. The social welfare officer interviewed the child and thereafter lodged a police report on 16.1.2018. Arising from this, the police arrested the 215 Respondent on 17.1.2018. [15] The Prosecution submitted that the ingredients of the Charge had been proved as follows: 220 a) PW2, who was the neighbour living in the house next to the victim (PW9), had seen the incident. PW2 was an eye witness to the incident. She clearly testified (AR Vol 2 page 36) that: “Saya dengar suara budak menangis kuat tetapi seakan ditekup.” “Saya pergi intai, saya pergi ke tingkap di depan rumah dan ada papan 225 di tingkap.” “Saya nampak badan Muhd. Shan dalam keadaan tidak berbaju” “Saya tah tahu apa yang dia buat tapi nampak badannya bergoyang. Saya tak nampak xxxxx tapi saya dengar suaranya dalam bilik itu”; b) the aforesaid testimony clearly showed that PW2 identified the 230 presence of both the Respondent and the victim at the time of the incident. c) thereafter, PW2 informed HM Saidi who then reported to the social 9 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal welfare department whose officer, PW1, was the Complainant in this case; 235 d) PW2 (the neighbour) gave clear and firm evidence and when cross- examined by counsel for the Respondent, she denied (AR Vol 2 page 40) when it was put to her that what she heard was the child crying because the child was in fact being beaten by the Respondent. She testified there is a difference when a child cries upon being beaten. 240 e) Under re-examination (AR Vol 2 page 40) PW2 testified that there is a difference between incidents of beating and during that particular incident because the victim (PW9) was told to keep quiet. “Q: Cik tadi peguam tanya saya cadangkan masa awak dengar kanak- kanak itu menangis, bapa tiri pukul dia, awak jawab tidak setuju, boleh 245 terangkan jawapan anda? A: Dia selalu pukul anak-anak dia. Saya boleh bezakan sebab semasa kejadian tak dengar pukulan tapi ini hanya dengar dia suruh diam. Semasa hari kejadian tiada dengar bunyi pukulan.” f) On the testimony of the occurrence of the incident by PW2 (eye 250 witness), there is corroborative evidence given by PW5 (HM Saidi) and the victim’s mother (PW5). g) PW5 (HM Saidi) testified that PW2 informed him of the incident (AR Vol 2 page 46) as follows: 10 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal “Wanita (i.e. PW2) ini mengatakan dia selalu mendengar anak jirannya 255 yang juga anak murid saya nama xxxxx didera, dipukul, menangis kesakitan dan kedengaran seperti didera secara seksual. Wanita ini juga menceritakan bahawa dia pernah cuba mengintai kerana rumahnya dengan rumah, seolah budak itu sedang diperlakukan secara seksual, dia nampak kaki budak itu.” 260 h) The victim’s mother (PW8) also confirmed the incident upon being informed of the incident by the victim herself after the incident was revealed (AR Vol 2 page 58) when she testified: “Q: xxxxx ada beritahu apa kepada awak? A: Lepas orang awam di sana beritahu saya, saya panggil anak saya 265 dan tanya dia. Anak saya beritahu suami saya ada usik dia semasa saya tiada dirumah. Q: Apa yang kamu maksudkan dengan ‘usik’? A: Maksud saya dia ada menyentuh bahagian kemaluan, di bawah. Ini yang diberitahu xxxxx kepada saya.” 270 i) PW1 lodged a police report. j) The victim herself gave evidence confirming the incident that happened to her and stood by her testimony despite detailed cross- examination by the Respondent’s counsel. And her evidence is consistent with evidence of the recording (P8 AR Vol 3 pages 84 to 89 11 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal 275 at page 88) made of her interview with Inspector Roshamiza binti Baharudin (PW6) at the Child Interview Centre (“CIC”) in Kuala Lumpur. k) The testimony of the victim at the CIC (AR Vol 3 page 86, 87 and 88) was clear and direct: 280 “PT: AYAH NAMA APA M:MOHD JAN B ABDULLAH …………. PT: SELAIN PUKUL, ADA KE BAPA TIRI ADA BUAT PERKARA YANG BUKAN-BUKAN PADA XXXXX? 285 M: ANGGUK, JAWAB ADA PT:DIA ADA PEGANG M: ADA ……. PT: APA CITA xxxxx? 290 M: NAK JADI DOKTOR. PT: JIKA NAK JADI DOKTOR KEN BERANI, XXXXX KAN KAWAN DENGAN CIK ROS. M:DIA PEGANG TANGAN 295 PT: DIA PEGANG MACAMMANA? 12 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal M: BANGUN AMBIK PATUNG LELAKI LETAK DI SEBELAH. BARINGKAN PATUNG PEREMPUAN, LETAKKAN PATUNG LELAKI DI ATAS PATUNG PEREMPUAN, TUNJUK TANGAN PATUNG PEREMPUAN. 300 PT: HANYA PEGANG TANGAN SAJA M:GELENG KEPALA, DIA PEGANG KEMALUAN. PT: BOLEH TUNJUK BAGAIMANA DIA PEGANG KEMALUAN. 305 M:TUNJUK PADA PATUNG PEREMPUAN PEGANG KEMALUAN. PT:DIA PEGANG MACAM TU SAJA M: DIA MASUK JARI 310 PT: XXXXX ADA RASA SAKIT M: ADA PT: XXXXX ADA MENJERIT MINTA TOLONG M: SAYA NANGIS 315 PT: ADAKAH DIA SURUH XXXXX BUKA BAJU M:YA, SAYA NANGIS DIA MARAH. DIA KETUK KEPALA SAYA. PT: ADAKAH XXXXX CERITA PADA MAK M:ANNGUK. JAWAB ADA” 13 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal 320 Respondent’s case [16] Relies upon section 180 (1) CPC and Balachandran v Public Prosecutor [2005] 2 MLJ 301 FC for the principle that “Section 180 (1) makes it clear that the standard of proof on the prosecution at the close of its case is to make out a prima 325 facie case. …A prima facie case is, therefore, one that is sufficient for the accused to be called upon to answer. This, in turn, means that the evidence adduced must be such that it can be overthrown only by evidence in rebuttal.” [17] The prosecution has failed to prove the date of the accident through the 330 victim i.e. the child who was 12 years old (PW9). [18] The public witness (PW2) who was said to have seen the incident failed to state the date of the incident. 335 [19] Reference was made to PW2’s testimony at AR Vol 2 pages 37 Line 200; page 38 Line 210; page 46 Line 400; page 47 Line 415 and the Respondent submitted that PW5 (HM Saidi) was never referred to the child/victim (PW9) for identification in Court. 340 [20] In the transcript of the CIC interview, exhibit P8 tendered through PW6 and PW7 there is also no reference to the date of the incident. 14 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal [21] The learned Sessions Court Judge’s grounds (Vol 1 pages 9 to 28) in paragraphs 13 to 25 correctly held that although the Charge stated the date of incident as 4 January 2018, no evidence was given by any witness on this date; 345 the victim (PW9) did not at all state when the incident took place. [22] It was further submitted that Exhibit P8 stated the name of the victim as XXX bt P (AR Vol 3 page 84) but in the transcripts of the CIC recording the name of the victim was recorded as XXX bt A; in the Charge (Vol 1 page 4) the name was stated 350 as XXX bt P, whereas the mother(PW8) said the name of the victim was xxxx xxxx (AR Vol 2 page 57 Line 665). [23] The Respondent added that the victim (PW9) was never referred to PW5 (HM Saidi) for identification and neither to PW6 and PW7. 355 [24] The Respondent would be prejudiced to make a defence without the date and time of the alleged incident and without the identity of the victim proved, bearing in mind that there is another younger sister in the home of the victim; therefore, the Prosecution had failed to made out a prima facie case and the 360 learned Sessions Court Judge was correct to have acquitted the Respondent. 15 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal Sessions Court’s decision 365 [25] The learned Sessions Court Judge found (AR Vol 1 paragraph 37) that the said physical touching of the genitals satisfied the ingredient that it was done for sexual purposes within the meaning of section 14 and the offence under the provision of subsection (d) made out and, therefore, the element of physical sexual 370 assault had been proven. [26] However, the trial Sessions Court Judge held there were gaps in the prosecution case as the time and date of the incident were not proven and the victim was never identified by any of the other witnesses who gave evidence. It 375 was not proven that XXX a/p P, XXX bt A and XXX bt P were one and the same person as other than through this case, the witnesses do not know one another personally. PW2 who heard the cries from the Respondent’s house did not identify who was the victim that she meant and PW9 testified that she stayed in that house with 4 other siblings, two elder brothers, one younger brother and another younger 380 sister; the cries heard by PW2 could probably be that of the younger sister and not PW9. [27] The Sessions Court Judge found that the prosecution had not made out a prima facie case and acquitted the Respondent. 385 16 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal Court’s consideration of the appeal [28] On the need to provide particulars as to time, place and person as prescribed under section 153 of the CPC, the extract under paragraph 153-3 at page 240 390 from the book on The Criminal Code A Commentary With Appellate Practice & Procedure (Second Edition) by Srimurugan Alagan is instructive, where the learned author wrote: “In sexual offences, the essential ingredients are the sexual act and the identity of the 395 offender; it is incorrect to say that the date is a vital ingredient of the charge [R v Richard Beynon (1999) EWCA Crim 1172]” [29] In Mohd Hanif Kassim v Public Prosecutor & Anor Appeal [2015] 3 CLJ 400 984, Choo Kah Sing JC in a charge for rape held that in cases where the time, date or place does not constitute an essential ingredient of the offence, mere non- compliance with s. 153 of the CPC on the time, date or place will not vitiate the validity of the charge. As long as the general particulars of the time, date or place are stated in the charge and the exercise of an accused’s fundamental right to 405 defend his case is not prejudiced or derogated, the charge remains a valid charge. His Lordship Choo Kah Sing JC cited the Federal Court case of Law Kiat Liang v PP [1965] 1 LNS 81 which in turn referred to and adopted the following statement of Atkin J in the case of R v Severo Dossi [1918] 13 Cr App R 158: 17 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal 410 “From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the offence.” [30] See also the provisions of sections 156 CPC reproduced below: 415 “That no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded, at any stage of the case, as material unless the accused was in fact misled by that error or omission” and see also the Federal Court authority of Ho Ming Siang v Public Prosecutor [1966] 1 LNS 68. 420 [31] That the Respondent was charged with a sexual offence is clear and in Mohd. Rusziani Mislan v Public Prosecutor [2018] 1 LNS 119 at paragraph [22], 425 SM Komathy JC (now Judge) held and with which the Court agrees: “The appellant was not prejudiced by the failure of the prosecution to specify the date of the incident in the charge. The charge provided sufficient particulars for him to prepare his defence. In sexual offences the essential ingredients are the identity of the offender and 430 the sexual act itself” [32] It is indisputable that the Respondent is facing a charge on a sexual offence against a child and, therefore, as pointed out by the prosecution, any defect in the 435 Charge on date and time of the incident would not make it defective. [33] Evidence was led to show that the incident took place in early January 2018 at a time when the victim came back from school. Although, PW2, the neighbour 18 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal who saw the incident could not ascertain the date and time of the incident, she was 440 able to identify the Respondent and could recognise the voice of the victim. [34] Thus, with all due respect, the learned Sessions Court trial Judge had clearly fallen into error in relying upon the authority of Willie Sodoi v PP [1994] 3 CLJ 515 HC on the need for the date and time of the Charge to be proven when the 445 accused in Willie Sodoi’s case was not for a sexual offence but under section 380 Penal Code for theft. [35] The learned Sessions Court Judge had also fallen into error when she focussed on whether any of the witnesses had identified the victim (PW9) when: 450 35.1 section 18 of Act 792 expressly provide that “Notwithstanding anything contrary in any other written law, in any proceedings against any person relating to any offence under this Act, or any offence specified in the Schedule where the victim is a child, the court 455 may convict such person of such offence on the basis of the uncorroborated evidence of a child, given upon oath or otherwise.” (emphasis added); 35.2 with the victim (PW9) having given direct and consistent testimony during the CIC (supra) that it was her [step] father who had sexually 460 assaulted her; 19 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal 35.3 the victim’s mother (PW 8) (AR Vol 2 pages 57 and 58) who testified that the police took her to Hospital Teluk Intan for examination and upon examination was told that her child “diusik” and that her child had told her that her husband had “usik dia” when she was not at home 465 and when asked what she meant by “usik”, she testified that her child told her that he (Respondent) had touched her genitals. 35.4 that PW2 saw the shirtless Respondent and that she heard the voice of the victim, PW9 when it was put by the Respondent’s counsel himself to PW2 (AR Vol 2 page 39) that: 470 Q. “Saya cadangkan semasa kamu dengar kanak-kanak menangis, dia sebenarnya dipukul oleh bapanya iaitu OKT? A: Tidak setuju” 35.5 PW2 was the person who took the victim (PW9) to her school to meet HM Saidi (PW5). 475 [36] The learned Sessions Court Judge had also overlooked the fact that the identification of the victim (PW9) by the following witnesses were expressly dispensed with by counsel for Respondent: 480 36.1 the complainant from the social welfare department, PW1 (AR Vol 2 page 35); and 36.2 the neighbour, PW2 (AR Vol 2 page 37). 20 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal [37] In fact, both PW2 (AR Vol 2 page 37) and PW8 (AR Vol 2 page 57) identified the Respondent during the trial in court. 485 [38] Although, her family name of “bt Pxxx” was mentioned in the Charge but with the police report having it as “bt Axxx” the first name of the victim was consistently and accurately mentioned (AR Vol 2 pages 34 line 128, 36 lines 168 & 180, 37 line 191, 38 line 221, 46 line 403, 47 lines 411, 414,423 & 429, 50 line 504, 51 line 490 525, 55 lines 617 & 624, 57 line 666, 58 lines 676, 683 & 689, 60 lines 726 & 727, 61 line 741 & 759 and 65 line 837. Her correct identity card number was accurately described. Counsel for the Respondent himself also referred to the victim by her first name during cross-examination (AR Vol 2 page 48 line 450, 49 line 467, 52 line 541, 59 line 707 and 63 line 797). In the circumstances, the Court is satisfied 495 that there was no prejudice to the Respondent as to the identity of the victim that is referred to in the said Charge. [39] After giving a maximum evaluation to the evidence led, there is not a flicker of a hint by the Respondent in any of the cross-examination that there was another 500 victim in the form of the victim’s younger sister in the incident. In fact, the evidence given by the victim (PW9) under cross-examination (AR Vol 2 page 63) was clear: “Q: Semasa kejadian ada orang lain di rumah? A: Tiada sesiapa di rumah” 21 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal 505 [40] Instead, the theory advanced by the Respondent in his cross-examination was to the effect that the victim was fantasizing about such an incident and that she was abused (“didera”) by beatings (AR Vol 2 page 52 line 555, 53 line 560, 59 lines 708, 711 & 715, 63 line 803 & 811, 64 line 814) rather than being assaulted sexually. In this regard, the Court finds the following statement by Abdul Rahman 510 Sebli JCA (now FCJ) in Public Prosecutor v Cho Sing Koo [2015] 4 MLJ 689 at paragraph [34] to be most helpful: “…the burden on the prosecution is to prove its case beyond reasonable doubt, not beyond a shadow or flicker of a doubt. That is the degree of proof required and there is 515 no dearth of authority on what constitutes ‘reasonable doubt.’ Unless this is properly understood there is the danger that in giving maximum evaluation to the evidence of the prosecution at the close of its case ……….., a burden that is heavier and more onerous than what the law requires is demanded of the prosecution. Justice is not better served by acquitting a guilty man than it is to convict an innocent man.” 520 [41] It is also plainly wrong of the learned Sessions Court Judge to find that the authenticity of Exhibit P10A which is the Compact Disc containing the recording of the interview held between PW6 and the victim was not proved due to the failure by Investigating Officer to produce the certification under Section 6 (3) of the 525 Evidence of Child Witness Act 2007 (Act 676) even though the recording officer, Sergeant Abu Faiq bin Hamdan (PW7) was called to give evidence. With the latter who did the recording having been called as a witness to give oral evidence, the certification is clearly unnecessary. In any event, the transcripts of the recording 22 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal (AR Vol 3 pages 85 to 89) were admitted (as exhibit P8) through the interviewing 530 officer, Inspector Roshamiza binti Baharudin (PW6). [42] The Court is satisfied that the prosecution had correctly referred to a binding Court of Appeal authority on the provision of an analogous statute namely section 90A of the Evidence Act 1950 (Act 56) where there is a provision similar to that of 535 section 6(3) of the Evidence of Child Witness Act 2007 (Act 676) as will be apparent hereunder. [43] Section 6 (3) of the Evidence of Child Witness Act 2007 (Act 676) provides as follows: 540 “A certificate by a person who did the video recording pursuant to subsection (1) shall until the contrary is proven, be admitted as a prima facie evidence of the authenticity of the content of the video recording.” 545 [44] Section 90A of the Evidence Act 1950 (Act 56) provides as follows: “(1) In any criminal or civil proceeding a document produced by a computer, or a statement contained in such document, shall be admissible as evidence of any fact stated 550 therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement. (2) For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by 555 a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used. 23 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal (3)(a) It shall be sufficient, in a certificate given under subsection (2), for a matter to be 560 stated to the best of the knowledge and belief of the person stating it.” (b) A certificate given under subsection (2) shall be admissible in evidence as prima facie proof of all matters stated in it without proof of signature of the person who gave the certificate.” 565 [45] Mahadev Shankar JCA (as His Lordship then was) speaking for the Court of Appeal in Gnanasegaran Pararajasingam v Public Prosecutor [1997] 4 CLJ 6 held that : “If he chose he could have issued a certificate as required by s. 90A (2) and without his 570 actual presence all the computer-generated documents would have been admitted in evidence as provided by s 90A (1). The viva voce evidence of the man in the witness box counts for more than a certificate issued by him.” 575 [46] It was, therefore, plainly wrong of the learned Sessions Court Judge to have excluded exhibit P10A merely because there was no certification of the same. Conclusion 580 [47] In the upshot, the Court was satisfied having given the prosecution case its maximum evaluation, a prima facie case had been made out at the close of the prosecution case. Wherefore, the appeal was allowed, the decision of the Sessions Court Judge of 27.2.2019 was set aside with the case being remitted back to the Sessions Court and the Respondent to be called to enter on his defence. The 585 decision of the Court scheduled for the 24.11.2020 could only be delivered on 24 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16.12.2020 by reason of the Conditional Movement Control Order brought about by reason of the global COVID-19 pandemic. Dated : 16 December 2020 590 595 ( SU TIANG JOO ) Judicial Commissioner High Court in Malaya Ipoh, Perak 600 Parties: Counsel for the Appellant: TPR D Sunita Kaur Jessy Prosecution Unit 605 State Legal Advisor Offices Ipoh, Perak Counsel for the Respondent: Kumaresan a/l Shanmugam 610 Messrs S. Kumaresan & Associates Advocates and Solicitors Teluk Intan, Perak 615 25 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal “Criminal law – sexual offence – non-provision of date of offence will not vitiate the validity of the charge Evidence-Sexual Offences Against Children Act 2017 (Act 792) – Court may 620 convict on the basis of uncorroborated evidence of a child, given on oath or otherwise” 625 26 S/N /ORmvRA1F06ZDQyEgbHVfA **Note : Serial number will be used to verify the originality of this document via eFILING portal