[Timbalan (TPR), Jabatan Peguam Negara] NOR HAFIZ BIN HANAPI

[Timbalan (TPR), Jabatan Peguam Negara] NOR HAFIZ BIN HANAPI

Conviction and sentence were unsafe and therefore set aside because the trial judge relied decisively on the child’s testimony and demeanour assessed via recorded RVT without contemporaneous notes as required by s271 KPJ, and prosecution failed to adduce independent clinical evidence from authoritative medical personnel to establish that the act was not a proper clinical procedure; moreover the alleged 'condom' was not positively identified or produced as an exhibit, leaving a critical evidential gap.

Citation
CB-42JSKH(A)-1-02/2023 (Mahkamah Tinggi)
Parties
Appellant (perayu): Nor Hafiz bin Hanapi; Respondent (prosecutor): Pendakwa Raya
Court
A
Jurisdiction
Malaysia
Judgment Date
27 November 2023
Case Number
CB-42JSKH(A)-1-02/2023 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal / Appeal From Sessions Court Conviction and Sentence to High Court
Outcome
Conviction and sentence set aside; appeal allowed
Legal Topics
Sexual Offences Against Children, Credibility and Demeanour of Child Witnesses, Clinical Procedure Evidence for Medical Practitioners, Statutory Interpretation of Section 14 Sexual Offences Against Children Act 2017, Judicial Review of Conviction
Source Language
Malay/English
Criminal Law Child Protection Medical Law Evidence Law Sexual Offences Against Children Credibility and Demeanour of Child Witnesses Clinical Procedure Evidence for Medical Practitioners Statutory Interpretation of Section 14 Sexual Offences Against Children Act 2017 +1 more

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Parties

Nor Hafiz bin Hanapi

Appellant (perayu)

Pendakwa Raya

Respondent (prosecutor)

Procedural Posture

Criminal Appeal / Appeal From Sessions Court Conviction and Sentence to High Court

Legal Issues

  1. 1 Whether conviction under s14 Sexual Offences Against Children Act 2017 was safe given reliance on child testimony without clinical procedure evidence
  2. 2 Whether trial judge properly relied on witness demeanour via recorded RVT without contemporaneous notes as required by s271 Criminal Procedure Code
  3. 3 Whether the material described as a 'condom' was sufficiently identified and produced as exhibit to support conviction

Ratio Decidendi

Conviction and sentence were unsafe and therefore set aside because the trial judge relied decisively on the child’s testimony and demeanour assessed via recorded RVT without contemporaneous notes as required by s271 KPJ, and prosecution failed to adduce independent clinical evidence from authoritative medical personnel to establish that the act was not a proper clinical procedure; moreover the alleged 'condom' was not positively identified or produced as an exhibit, leaving a critical evidential gap.

Court Disposition

Conviction and sentence set aside; appeal allowed

Orders

  • Conviction and sentence by Sessions Court quashed
  • Order that appellant be released if not otherwise lawfully detained