SUHARMAN BIN MOHAMAD NOOR@ISMAIL (NO. K/P : XXXXXX-XX-XXXX) PUBLIC PROSECUTOR

‘[JB:42H-18-03/2019 & JB-42H-20-05/2019] [Mean _ MALAYSIA > IN THE HIGH COURT OF MALAYA SITTING AT MUAR © CRIMINAL APPEAL NO. JB-42H-18-03/2019 & JB-42H-20-05/2019 BETWEEN?” SUHARMAN BIN MOHAMAD NOOR@ISMAIL (NO. K/P : XXXXXX-XX-XXXX) .. APPELLANT AND PUBLIC PROSECUTOR OS ", RESPONDENT (OB COB ECB CB CB CB CB CB CB OB CB CB CB CBB CBB CBB EB BBB BBS GBB BS GROUNDS OF JUDGMENT JUDGMENT [1] INTRODUCTION These are 2 appeals against the decisions of the Learned Sessions Court Judge after a full trial. In the ‘Sessions Court, the 2 cases carried a ~ separate registration number but as they. are both on the same subject Before the Honourable Judicial Commissioner AwangArmadajaya bin 1 Awang Mahmud , [JB-42H-18-03/2019 & JB-42H-20-05/2019] [BD aenaweeraay * matter against:a complainant-and: the witnesses are the same, they are tried together. The Appellant was charged at the instance of the Public Prosecutor before the Sessions Court sitting in ‘Kluang (Case No. JG-62JS-04- 05/2017) on several counts of aggravated’ incestuous rape under séction ~ oe 376(3) Penal Code and the Charges are as follows: Case No. JG-62JS-03-05/2017 4** Amended Charge veer” That you, on a day in the month of July 2015, between the hours of 12 midnight and 6 am, ina bath roomina house at no. No. 10E, Lorong A2, Jalan Bunga Raya, Kampung JB-Melayu, in the District of Kluang, in the State of Johore, committed rape on your . step daughter by the name of (the prosecutrix) whereby there exist a law (or religion or custom) that prohibited you to marry her by and you have thereby committed an offence under section 376(3) Penal Code, and punishable by the same. and Amended Charge That you, on a day in the month of August 2015, between | the hours of 12 midnight and 6 am, ina bath room in a house at no. No.10E, Lorong A2, Jalan Bunga Raya, Kampung Melayu, in the District of Kluang, in the State of Johore, committed rape on your step daughter by the name of (the prosecutrix) whereby there exist a law (or religion or custom) that prohibited you to marry her by and you have thereby committed an offence under section 376(3) Penal Code, and punishable by the same. Before the Honourable Judicial Commissioner AwangArmadajaya bin 2 Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 . 3" Amended Charge That you, ona day i in the month of September 2015, between. the a “hours of 12 midnight and’ 6 am, ina bath room in a house’ af no. No.10E, Lorong A2,.Jalan Bunga Raya, Kampung Melayu, in the District of Kluang, in the State of Johore, committed rape on your step daughter by the name of (the prosecutrix) whereby there exist a law (or religion or custom) that prohibited you to marry her. by and you have thereby committed an offence under section 376(3) Penal Code, and punishable by the same.” Case No. JG-62JS-04-05/2017 1% Amended Charge —_ That you, on a day in the month of October 2015, between the hours of 12 midnight and 6 am, ina bath room in a house at no. No.10E, Lorong A2, Jalan Bunga Raya, Kampung Melayu, in the District of Kiuang, in the State of Johore, committed rape.on your step daughter by the name of (the prosecutrix) whereby there exist.a law (or religion or custom) that prohibited you to marry her by and you have thereby committed an offence under section 376(3) Penal Code, and punishable by the same. 24 Amended Charge ; That you, on a day in the month of September 2015, between the hours of 12 midnight and 6 am, in a bath room in a house at no. No.10E, Lorong A2, Jalan Bunga Raya, Kampung Melayu, in the District of Kluang, in the State of Johore, committed rape on your step daughter by the name of (the prosecutrix) whereby there exist a law (or religion or custom) that prohibited you to marry her Before the Honourable Judicial Commissioner AwangArmadajaya bin 3 Awang Mahmud : [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21,2020 [i by and you have thereby committed ‘an offence. under section 376(3) Penal Code, and punishable by the same. " The Appellant pleaded not guilty and were tried jointly with all-the Charges before the Sessions Court. and after a full trial, was convicted of all Charges and was.sentenced to 25 years’ imprisonment for each Charge : (with effect from the date of arrest: i.e. 19 October 2015) with 10 strokes of the rattan for each Charge. The Appellant was also charged with another 3 counts of aggravated rape under section 376(3) Penal Code (Case no. JG-62JS-03-05/2017) and after a full trial, was convicted. of all Charges and was sentenced to 25 years’ imprisonment for each Charge (with effect from 19 October 2015) ~ with 10 strokes of the rattan for each Charge. . The total number of years is 25 years and 20 strokes for Case’ No. JG- 62JS-04-05/2017 and another 25 years and 30 strokes for Case no. JG- 62JS-03-05/2017 but since all imprisonment sentences are fo run concurrently, the total number of years served will be only 25 years. The Notice of Appeal in both cases states the appeals in both cases are against conviction and sentence but at the hearing of the appeals, the Learned Counsel for the Appellant informed the Court that she will proceed with appeal against sentence only. This is found in Enclosure 44 and before this Court, the Learned Counsel proceeded only against sentence. The Notice of Appeal filed by the Court of Appeal is also against sentence. Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] [eens a [2] : ‘THE EVIDENCE ADDUCED.BY THE PROSECUTION The Prosecution’s case rested on 12 witnesses called to the stand ahd they are: vi. vii. viii. xi. xii. PW = Prosecutrix: . PW2 — Corporal Roslie Bin Pukoh (Arresting officer) PW3 — (aunty of the Prosecutrix) ° PW4 — (biological mother of the Prosecutrix) PW5 —- Lance Corporal Mohd Yusoff bin Nani. (photographer) PW6 - Dr. Noradila Binti Bohari (Medical Officer) PW/7 — Dr. Noryazlina B Binti Md. Ali | (Obstetrics and gynaecology specialist) , co PW8 — Nur Hafiza Binti Md Yusop (Science Officer at the Department of Chemistry) ‘Pwe — (adopted brother of the Prosecutrix) PW10 — ASP Anne Quek Binti Mohamed (Investigation Officer) PW11 — Sakinah Binti Shaaran (Deputy Registrar of the Kadhi’s Office) .PW12 - - Corporal Lenny Sofia Binti Junit (Police Escort of the Victim) The victim (PW1) is below the age of 18 and by virtue of section 15 Child Act 2001, her identity shall be concealed from public view. Likewise her mother's identity shall also concealed. The Prosecutrix is PW1 who is the step daughter of the accused person (appellant). The evidence of PW1 was that she was first raped by the appellant when she was 11 years old when they were staying in Kelantan. Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] At that time, PW1 didn't understand what the appellant did to her and she . felt weird and. uneasy. She was scared. and did not tell anyone because "the Appellant told:‘her not to tell her mother on what. happened to her. The Appellant often would threaten ‘her family members with a “parang” (machete) and damaged items in the house. While no one has ever been injured but the appellant threatened PW1’s sister with a machete at her . neck. Because of this, PW1 was very ‘scared of the appellant. | PW1 gave evidence that the Appellant raped her weekly In 2014, PW1 and her family including the Appellant moved from Kelantan to Sungai Tiram in Pasir Gudang, Johore and later moved to Kluang, Johore. At Pasir Gudang and Kluang, PWT’ s evidence was that she was raped many times by the Appellant. On 19 October 2015, PW1’s mother (who later gave evidence as PW4) sent her younger sister to school before 7 am and came back after that. At about 7 am, Pw left their house for work. At that time a good friend of the Appellant by the name of Abdul Hamid, a relative by the name of Faizal, an uncle by the name of Kamal bin Abu Bakar and an aunty were at the house. PW1 was sleeping in her room and she was wearing a long dress (Exhibit P27A). Suddenly PW1 felt that someone was taking off her panties (Exhibit P28A) and felt a phallus was penetrating her vagina. The Appellant's hands were on her lef and right body. PW1's evidence was she felt the Appellant's phallus moving ‘in and out of her vagina like a piston movement, and then she felt that there was some warm fluid on her stomach. The Appellant wiped the warm fluid off by using a white t-shirt ‘(Exhibit P30A) and he left the room soon after. PW1 then got up and put on her panties and went to the bathroom to wash herself. During the Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud ; UB-42H-18-03/2019.8 JB-42H-20-05/2019] | December 21, 2020 | incident, the Appellant was wearing a sarong (Exhibit P29A) and PW1 identified the sarong as the Appellant’ s. _ After the incident on.the 19 October 2015, PW1 was accompanied by her "uncle to lodge a police report (Exhibit P1y at1.25 pm. ‘Based on the report, the Police arrested the Appellant on the same day at about 10.45 pm. An arrest report was made and tendered in court as Exhibit P8. On the same - say, PW1 was also brought to Kluang Hospital where she was examined . by a medical officer Dr. Noryazlina Binti M. Ali (PW7) and found old tear . at 6 o'clock and 7 o'clock. This incident, according to PW, has happened many times before and also on weekly basis and sometimes more than one a week. It normally occurred in the morning when PWT’ s mother went to work. When it happened at night, it was at the bath room. In duly 2015, it was in her bed room which was dark because no lights were switched on but PW1 is of the firm belief that the Appellant raped her and PW1 has memorised the way the Appellant raped her, how he held her hands and her body down. While the Appellant's. phallus entered her, the Appeliant would hold her down by pressing on her body or shoulders and warned her to keep silent. In the case no, JG-62JS-03-05/2017, the Charge against the Appellant was for the July 2015 incident. PW1's evidence was that it was after 11 pm, it happened in the bathroom. Pw’ s mother and sister have gone to © bed. PW1 was watching TV when the. Appellant called her to the kitchen to untangle his mobile phone.charger cables. After PW1 succeeded in untangling the cables, she returned to watch the music show, the Appellant called her again this time to the bathroom and Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud ; {JB-42H-18-03/2019 & JB-42H-20-05/2019] [MN acamiaaeeeerauay when she got to the bathroom, the Appeliant was just in towels and called “her in. Suddenly the Appellant pulled: down Her pants which she was wearing. The appellant forcibly spread her legs and tried to enter his phallus into : her vagina but failed. He then pulls. down her entire pant and panties and “forced himself ‘onto her, The lights were bright and PW1 could see everything including his phallus. Pw did.not scream because she has been forced many times before this incident and.can no longer feel any emotion when the Appellant forced himself on her again. After the penetration, the appellant withdrew his phallus and spilled his seminal fluid on the bathroom walls. Pw knew of seminal fluids because she studied in religious classes when she was in Form 1. After it was over, the Appellant then directed PW1 to wash up and warned her not to tell anyone. PW1 was gravely afraid of the Appellant | because he is hot tempered and is a violent man who beats up members of her family. PW1 said when the Appellant is angry, he often has a machete in his hands and she was in fear because of this. She was also afraid that the Appellant will hurt members of her family including her mother. For the gnd Charge in case no. JG-62JS-03-05/2017, which happened in August 2015, the incident also happened at night as the previously in case no. 62JS-03-05/2017. Another incident happened in the morning. However, the Prosecution proffered a Charge only for the incident at night © as per the case no. JG-62JS-03- 05/2017. + , Before the. Honourable Judicial Commissioner AwangArmadajaya bin ' Awang Mahmud ; [JB-42H-18-03/2019 & JB-42H-20-05/2019] An oral amendment was made to the charge on 29.11.2018. — _On the: 30 Charge | ie, Case no: JG- 62)S- 03- 05/2017 was for September . 2015 the incident happened at night i inthe bath room of the same house. PW1 saw everything because: it was bright and she saw the Appellant's phallus inserted into her vagina and the Appellant sprayed his seminal fluid on the bathroom wall. The evidence of PW7, Dr. Noryazlina Binti Md. Ali (an Obstetrics and gynaecology specialist at Enche Besar Hajjah Khalsom Hospital in Kiuang) was that she examined PW1 when PW1 was brought in by the Police on 19 October 2015. PW7 examined the genitalia of PW1 and found there are old tears at 6 O'clock and 7 O'clock positions, PW7's: evidence was that the old ‘tears on the hymen were caused by blunt objects such as a male phallus. It is an old tear because it was at the time of examination, more than 72 hours. Although the alleged incident was said to ‘happen on the same day as the examination, PW1 had been raped many times before which explained the old tears. PW1’s evidence was that she was raped since 2014. A Medical Report (Exhibit P14) was tendered through PW6 Dr. Noradila Binti Bohari a Medical Officer from the Department of Obstetrics & Gynaecology at the same hospital. PW6 evidence was that she assisted PW7 in examining PW1 where PW6 took PW1’s medical history and swab samples from the vagina of PW1 to be analysed for DNA. The sample was analysed by PW8 Dr. Nur Hafiza Binti Md Yusop, a Science. Officer from the Department of Chemistry who confirmed that the seminal fluid on PW1's panties (P28A) and t-shirt (P30A) matched with Before the Honourable Judicial Commissioner AwangArmadajaya bin 9 Awang Mahmud _DB: 7a2H- 18- r03/2019 & JB- ~42H-20- “05/2079 “December 21, 2020 “the: DNA profile of the Appellant's blood specimen sample. pws ‘also confirmed that the DNA profile, obtained from the seminal stain on PW'1’s .- night dress (P27A) showed that: od The contributor is a male and it, matches the DNA profile of the blood specimen sample labelled Suharman ‘bin Mohamed Noor and they are both from the same source, ii. Female contributor from non-sperm source matches the DNA Profile marked E1 labelled with the Prosecutrix’s name and it showed that the DNA profile is from the same source. PW8’s evidence was that the DNA profile obtained from seminal stains on the sarong (P29A) showed that: i. Asingle male contributor on the spermatozoa that matches the DNA profile obtained from the accused blood specimen and it is from the same source. ii, Amixed DNA from non-spermatozoa from one male and one female contributor where the blood specimen: E9: labelled Suharman bin Mohamed Noor and blood-specimen E71 labelled the Prosecutrix's name are consistent with the mixed DNA sample. PW8 then tendered the Chemist Report that she prepared and was marked P16. The evidence of Pwe on the presence of the accused DNA profile on the Exhibits P27A, P28A, P29A and -P30A are corroborative evidence that support the evidence of PW1 that on 19 October 2015. The _ evidence of PW8 was that the Exhibits of DNA samples were kept safely Before the Honourable Judicial Commissioner AwangArmadajaya bin 10 Awang Mahmud Lat . [JB-42H-18-03/2019 & JB-42H-20-05/2019] and not tampered with and under her care at all times. PW8 also received the Exhibits from the Investigation Officer and found that they are good . conditions and are sealed and kept property. PW6 is a medical officer from Enche’ Besar Hajjah: Khalsom Hospital, Kluang gave evidence that she took 6 swaps as samples from the vagina -. of the victim: PW8. ‘PWS gave. evidence that the DNA analysis: showed that there was no male or foreign DNA profile on the 6 swab samples marked E2, E3, E4, E5, E6 and E7. taken from the vagina of PW1. PW9 is the foster brother of PW1 by the name of Muhammad Harith bin . Abdul Aziz and. PW9 testified that PW1 told him that her. step father raped her many times at the bathroom of the house where she is staying while her mother was asleep. PW11 told PW9 through the Facebook chats and after a week PW9 went to the victim’s house and PW1 narrated the story in greater detail i.e. the rape incidents by the step father which happened in the bathroom and her room. while her mother was fast asleep. Pwo then informed the aunty of the victim who is PW3 through the Facebook chats. This was unchallenged by the accused person. PW3 then testified that the victim and PW3 chatted on Facebook and during the chat sessions, PW1 informed PW3 that she was: raped by the step father for the past 2 years. PW1 informed PW3 that she was first raped in Kelantan. In Kluang the victim was raped in her room and the bathroom. PW3 asked PW1 to quietly come to her house. 2 or 3 days later after the chat, PW1 stole her way out of the house to PWs3 house and related to PW3 the whole story of the rape incidents. Before the Honourable Judicial Commissioner AwangArmadajaya bin 11 Awang Mahmud — oo: _ . . . [JB-42H-18-03/2019 & JB-42H-20-05/2019] [Mb eoneaweeea While PW told her the story, PW3 said’ PW/1 was scared, crying and said - she no longer wants to live ariymore. After hearing her story, Pw3 told her elder brother Afizan bin Ismail to lodge a police report. The evidence of PW3 was consistent with PW1. on the evidence that Pw was raped in . the bathroom and her room. The mother of PW, i.e. PW4 gave evidence that PW1 told PW4’s friend, Abdul Hamid that the accused person raped her. PW4 came to know of , the rape incidents.through Abdul. Hamid, Later PW4.ask. PW1. about the rape incident a week before the last incident on the 19 October 201 5. PW4 testified that the victim PW1 have been frequently raped by the accused at their house in Kluang. In this instant case, the victim PW1 lodged a police report a few house after she was raped on 19 October 2015 which happened between 6 am until 7 am and PW1 lodged a report on 1.25 pm ~ on the same day. The victim PW1 is the step daughter of the accused as shown by P4, the Marriage Certificate of PW4 and. the accused. The Birth Certificate of the victim was tendered and marked ‘as P13 which corroborated PW4 — evidence that PW1 is her biological daughter. PW11 from the Kluang, a Registrar, Muslim Registration for Marriage and Divorce gave evidence on the marriage of PW4 and the accused. PW11 also testified that a step father is prohibited by Islam to marry a step daughter. There was no ~ challenge on this evidence as well. The Learned Sessions Court Judge found that the Prosecution succeeded in proving a prima facie case on all Charges and directed the Accused to enter his defence on_all Charges. Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud . ; [JB-42H-18-03/2019 & JB-42H-20-05/2019] [EBuosanlaaPaneairay _ [8]. . THE DEFENCE VERSION | The accused person raises. a few issues during his cross examination of the prosecution’s witnesses. They are’as follows: i this case is.as a result of revenge by the brother-in- law. and an - ~ entrapment case. , ii. The delay in lodging a police report. iii, Other people raped the victim. iv. Discrepancies in the victim’s evidence. v. The colour of the victim's underwear is different. During the Defence case, the Appellant gave evidence on oath and his (DW'1) testimony is as follows: “On 19 October 2015 at about 8 am, DW1 went to Sungai Tiram for. work. At 10 pm he came home at Kg. Melayu Kluang and an hour later the police came. Before the police came DW1 asked his brother-in-law Mohd Zin Abdul Hamid'on whereabouts of PW1. The younger brother of Mohd Zin by the name of Mohd Faizal said that PW1 went to a friend’s house to revise her studies. When | wanted to pick up PW1, his wife PW4 said there is no need and she didn’t allow DW1 to pick PW1 up. If the allegations were true, she did not need gave an excuse that PW1 went to revise her studies at a friend’ s house but instead just tell the truth and lodge a police report. Just tell the truth because it seemed like the whole thing has been planned against pDw1" 's behaviour, Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud [JB-42H-18-03/2019 & JB- “42° 20- 05/2019 December 21, 2020 When DW/1 was ‘brought to’ the Police Station it was not on 1 rape but the urine test under section 15(1) (a) Dangerous Drugs Act. The _ next day when the investigation officer came, ‘he told DW1 that DW1 , will be charged for rape. When Dwi was arrested at the ‘house the police said that it was for drugs in.urine. The police nothing about .. . any rape case. “The arrest was for the consumption of “Ice” (a dangerous drugs which is also known as Methamphetamine) under section 15(1) (a). The next morning the Investigation Officer met DW1 and took his ~ statement and he spoke of PW1 who lodged a report of being raped. DW1 asked which one, the Investigation Officer said, it is now very clear. The daughter (PW1) is already being admitted at the hospital for a check-up. DW1 said that if the rape was since PW1 was 10 years old until she was now 12 years old, she is already matured and the family have been to many places, and why only on 19 October 2015 PW11 lodged a police report and not earlier on? During the earlier case involving PW1 elder sister, the same was said. It happened when DW11 was sending his wife PW4 to work. When DW1 returned home, PW1 and her elder sister (Prosecutrix’s sister) ran. away using the back door. When DW11 went back to his wife’s workplace, Prosecutrix’s sister is no longer. at home. DW1 said during his marriage with PW4, he is hot tempered but always with good reasons. DW1 said he tried to correct the many wrong things in the family but it resulted in him being framed up. An example i is the DNA on the panties. ‘DW1 said his bedroom is in a mess and on the night Before the Honourable Judicial Commissioner AwangArmadajaya bin 14 Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 of 19 October 2015 he was arrested for dangerous drugs in his urine. The Police said nothing about the rape case. It was only on the following day, the. investigation Officer met the accused and took his * statement and told him that the PW1 lodged.a police report for rape. DW1 said all these were pre-planned because of DW1’s behaviour — before this.” The Learned Sessions Court Judge found that there was no reasonable doubt raised and she convicted the accused ‘on all counts as per the Charges. [4] THE ISSUES IN THE APPEAL i. Whether the evidence of PW1 was properly admitted. ii. Whether there was any corroboration to the Prosecutrix’s evidence. iii, Whether there is sufficient evidence to constitute a prima facie case against the Appellant. iv. Whether the Defence succeeded in creating a reasonable doubt. v. Whether the Learned Sessions Court Judge erred in applying the law and the judicial principles when passing sentence. | shall address the issues accordingly. i. | Whether the evidence of PW1 was properly admitted. The evidence of the prosecutrix (PW1) was that the on 19 October 2015, PW1’s mother (who later gave evidence as PW4) sent her younger sister Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud oo [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 to school before 7 am and came back after that. At about 7 am, PW4 left their house for work. At that time.a good friend of the Appellant by the -. name of Abdul Hamid, a relative by the name of Faizal,-an uncle by the name of Kamal bin Abu Bakar and an aunty were at the house. PW1 was sleeping in her room and she was wearing a:long dress (Exhibit P27A)..: Suddenly she felt that someone was taking off her panties (Exhibit P28A) and felt a phallus was penetrating her vagina: The Appellant’s hands were on her left and-right body. PW1’s evidence was she felt the Appellant’s phallus moving in and out of her vagina like a piston movement, and then she felt that there was some warm fluid on her stomach. The Appellant wiped the warm fiuid off by using a white t-shirt (Exhibit P30A) and he left the room soon after. PW1 then got up and put on her panties and went to the bathroom to wash herself. During the incident, the Appellant was wearing a sarong (Exhibit P29A) and PW1 identified the sarong as the Appellant’s. After the incident on the 19 October 2015, PW1 was accompanied by her uncle to lodge a police report (Exhibit P1) at 1.25 pm. The Prosecutrix was brought in to Enche Besar Hajjah Khalsom Hospital in Kluang where PW1 was examined by PW7, Dr. Noryazlina Binti Md. Ali (a Obstetrics and Gynaecology specialist). ‘on 19 October 2015: PW7 examined the genitalia of PW1 and found there are old tears at 6 0’ clock and 7 O'clock positions. PW7’s evidence was that the old tears on the hymen were caused by blunt objects such as a male phallus. It is an old tear because it was at the time of examination, more than 72 hours. Although the alleged ‘incident was said to happen on the same day as the Before the Honourable Judicial Commissioner AwangArmadajaya bin 16 Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] [Mason ues era examination, PW1 had been raped many times before which explained the old tears. PW1’s evidence was that she was raped since 2014, A Medical Report . (Exhibit P14) was tendered. through PW6 Dr. Noradila Binti Bohari a “Medical Officer from the Department of Obstetrics & Gynaecology at the same hospital. .PW6 evidence was that she assisted PW7 in-examining PW1 where PW6 took PW1’s medical history and swab samples from the vagina of PW1 to be analysed for DNA (Deoxyribonucleic Acid). The sample was analysed by PW8 Dr. Nur Hafiza Binti Md Yusop, a Science Officer from the Department of Chemistry.who confirmed that the seminal fluid on PW1’s panties (P28A) and t-shirt (P30A) matched with the DNA profile of the Appellant’s blood specimen sample. PW8 also confirmed that the DNA profile obtained from the seminal stain on PW1's night dress (P27A) showed that: i. The contributor is a male and it matches the DNA profile of the blood specimen sample labelled Suharman bin Mohamed Noor and they are both from the same source. . ii, Female contributor from non-sperm source matches the DNA Profile marked E1 labelled with the Prosecutrix’s name and it showed that the DNA profile is from the same source. PWé8’s evidence was that the DNA profile obtained from seminal! stains on the sarong (P29A) showed that: © , Before the Honourable Judicial Commissioner AwangArmadajaya bin 17 Awang Mahmud a _ ; [JB-42H-18-03/2019 & JB-42H-20-05/2019] [BBwanlawseearay i. Asingle male contributor on the spermatozoa that matches the DNA profile obtained from tt the accused blood d specimen ¢ and it is from the . same source. ii. A mixed DNA from non-spermatozoa from one male and one female contributor where the blood specimen E9 labelled Suharman bin - Mohamed Noor and blood specimen E1 labelled the. Prosecutrix’s " name are consistent with the mixed DNA sample. PW8 then tendered the Chemist Report that she prepared and was marked P16. The evidence of PW8 on the presence of the accused DNA profile on the Exhibits P27A, P28A, P29A and P30A are corroborative evidence that support the evidence of pw that on 19 October 2015. PW6 is a medical officer from Enche’ Besar Hajjah Khalsom Hospital, Kluang gave evidence that she took 6 swaps as samples from the vagina "of the victim. PWS. Pwe gave evidence that the DNA. analysis showed that there was no male or foreign DNA profile on the 6 swab samples - marked E2, E3, £4, E5, £6 and £7 taken from the vagina of PW1. The accused DNA was not. found on the 6 swabs taken from the vagina of the prosecutrix thereby confirming her evidence. that the accused. ejaculated outside the vagina and. onto her body. At the same time the evidence that there were the Accused DNA from spermatozoa source on the night dress of the prosecutrix confirmed her evidence that the ejaculation was on her body which the accused wiped away with a used shirt. This piece of evidence is damning to the accused as the seminal fluid do not normally be excreted callously and without restraint. It is only Before the Honourable Judicial Commissioner AwangArmadajaya bin 18 Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] ED SoueaeeEeAZan with heightened orgasm that a’ man would secrete. seminal fluid and spermatozoa laden fluids. First the identity of the Assailant. _PW1. is the step daughter of the . Appellant. They have been staying in the same-house for a. few: years ~ when the incident on 19 October 2015 happened. There have been many previous incidents: ram guided ‘by the Court of Appeal in the case of MOHAMAD YAZRI MINHAT V. PP [2003] 2 CLJ 65 at page 70 wherein the Court of Appeal remarked as follows:-_ "Now, the English case of Turnbull (supra) did not lay down: any proposition of law embodied in concrete. As all members of the criminal bar are aware, the several propositions in Turnbull are known as the "Turnbull guidelines". And that is what they really are. They are just guidelines and each case depends on, its own facts, What was said in Turnbull does not amount to inflexible rules with no exceptions whatsoever.” InRv. TURNBULL AND OTHERS [1976] 3 All ER 549, Speaking through Lord Chief Justice Widgery (as he then was) and this is what: the Court . said (at page 551):- First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution. before convicting the accused in reliance on the correctness of the identification for identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.. Before the Honourable Judicial Commissioner AwangArmadajaya bin 19 Awang Mahmud ; [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 "Secondly, the judge should direct the jury to examine closely the = ‘circumstances in which the. identification. by each witness came to be: ‘ made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or-a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering ‘the accused? How long elapsed between the original. observation. and the subsequent identification to the police? Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are-sometimes made.” : "All these matters go to the quality of the identification evidence. if the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger. In-our judgment, when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it; provided always, however, that an adequate warning has been. given. about the. special need for caution. © In our instant case, it was recognition-and not merely identification. There was an allegation that it was dark in her room. But given similar incidents have happened in the bathroom with full lighting, | don’t think that it can be an effective defence. There is no. reason why the Prosecutrix could not identify him and | find that the identification is safe. Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud | . [JB-42H-18-03/2019 & JB-42H-20-05/2019] | December 21, 2020 : The 2" issue for identification and whether the sexual act(s) did take place. is the issue of DNA presence especially in the seminal fluid or spermatozoa. The Federal Court discussed the issue of DNA in the case of DATO’ SER} ANWAR IBRAHIM v. PP & ANOTHER APPEAL [2015] 2 CLJ 145 where © the appellant, a senior and well- known politician, was alleged to have sodomised his 22-year old valet by the name of Saiful Bukhari bin Azlan (PW1), and in consequence, was. charged in the High’ Court with. an. offence under s. 377B of the Penal Code. Before the learned judge, evidence was adduced by the prosecution that: (i) on the afternoon of 26 June 2008, the appellant was alone with PW1 at a condominium unit known as Unit 11-5-1, Desa Damansara Condominium, Bukit Damansara, Kuala Lumpur; (ii). the appellant then told PW1 that he wanted to have sex. with him, and thereafter instructed PW1 to-proceed to the master bedroom of the unit; (iii) in the said master bedroom, the appellant sodomised PW1; (iv) two days later, on 28 June 2008, PW1 was examined by DW1 at Hospital Pusrawi, and thereafter, at Hospital Kuala Lumpur, PW1 lodged a police report against the appellant; (v) three doctors at Hospital Kuala Lumpur, namely PW2, PW3 and PW4,-.then “conducted forensic examination on PW1 and inter alia took swabs from PW1's rectum and rectal region ('B5, B7, B8 and BS"); (vi) on 30 June 2008, the biological samples thus collected from PW1 were sent to the Chemist (‘PW5') for analysis; (vil) the Chemist report as prepared by PWS (‘P25’) showed that there were semen, sperm cells and sperm heads on swabs B5, B7, B& and B9; (viii) P25 further showed that the DNA profile derived from swab B5 came from PW1, a ‘Male Y’ and one other male contributor, while the respective profiles from B7, B8 and B9 originated from PW'11 and the said Male Y: (ix) on 17 July 2008, the appellant was detained by the police in Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 ., & cell at the Police - Headquarters, Bukit Aman; (x). from a toothbrush . (P58A'), a Good Morning towel (P59A") and a mineral water bottle - ('P61A') used by the appellant during his overnight stay at the police lock- up, DNA profiles were extracted by another Chemist (‘PW6'); and (xi) the DNA profiles thus extracted by PW6 not only matched with each other : (indicating a common source) but also matched with. the DNA profile of the Male Y aforesaid (indicating that Male Y was the appellant). The Federal Court has this to say, inter alia, [73] The law on corroboration of the evidence of a victim in a sexual offence is settled in our jurisdiction. ‘In this regard, the Court of Appeal had correctly addressed the law by referring to various authorities both here and in other Commonwealth jurisdictions. As a. matter of practice " and prudence, not of law, corroboration is normally required in a sexual offence. Where corroboration is dispensed with, and the complainant's _ evidence is accepted as having established the case against an accused, the judge as a matter of law is required to warn himself of the danger of convicting on the uncorroborated evidence of the complainant. This requirement of the law is aptly put by Robert CJ in PP V. EMRAN NASIR [1986] 1 LNS 69; [1987] 1 MLJ 166 in the following words: ! warn myself that, on a charge of rape, it is dangerous to convict on the evidence of the complainant alone, since experience has shown that female complainants have told false stories for various’ reasons. However, it is open to me, giving full weight to ‘the warning that it is dangerous for me to convict without corroborative evidence, if | conclude that the complainant is, without doubt, speaking the truth. The case also propounded that "To amount to.corroboration the evidence must confirm to some important respect to the girl's evidence that intercourse took place... and that it was the defendant who committed the offence." Although the case pertains to a female victim in a rape case itis Before the Honourable Judicial Commissioner. AwangArmadajaya bin 22 Awang Mahmud . [JB-42H-18- 03/2079 &JB- “42H- 20- 05/2018) December 21, 2020 equally applicable to a male victim in a sodomy case, such as in this appeal. “This proposition is ‘suipportéd by a passage” in STATE OF - MAHARASHTRA V. CHANDRAPRAKASH KEWALCHAND JAIN [1990] 1 SCC 550 where the Supreme Court of India explained: , A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars... What is necessary is that the court must be alive to and conscious of the fact that. it is dealing with the evidence of a person who is interested i in the outcome of the charge levelled by her. ifthe court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. if for some reason the court is. hesitant to place implicit reliance on the testimony: of. the prosecutrix.it.- may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The Chief Justice of Brunei Sir Robert in PP V. EMRAN NASIR [1987] 1 MLJ 166 in the following words: 1 warn myself that, on a charge of rape, it is dangerous to convict on the evidence of the complainant alone, since experience has shown that female complainants have told false stories for various reasons. However, it is open to me, giving full weight to the warning that it is dangerous for me to convict without corroborative evidence, if [conclude that the complainant is, without doubt, speaking the truth. Before the Honourable Judicial Commissioner AwangArmadajaya bin 23 Awang Mahmud [JB- “42H- 18- 03/2019 & JB -42H- 20- 05/2019] December 21, 2020 With the greatest respect to the Learned Chief Juistice of Brunei, | am of . the view the issue is not one of gender but rather the very nature of the offence. . While Rape i is an offence against. women, on the other hand, men too can be a victim of sexual offences such as camal knowledge against the order of nature (where victims may include women). The Federal Court in Malaysia puts in succinctly in the following words “Although the case pertains toa female victim in a rape case it is equally applicable to a male victim ina sodomy case, such as in this appeal.” Corroboration is a Rule of Prudence and not of Law and this is because for the sake. of justice where some alleged victims throw allegations and it is difficult to discern between the truth and falsehood. Hence corroboration is one way of tilting the balance ‘so the Court can be confident in the decision it makes. Similarly, our Evidence Act does not require any corroboration in sexual offences and a conviction for such offences may rest entirely on the credibility of the complainant. The need for corroboration remains a rule of good practice and prudence as stated by his Lordship, the Lord President Thomson in DIN V. PP [1964] MLJ 300, who opined: But the desirability for corroboration of the evidence of the prosecutrix in a rape case (which in any event has not yet crystallized into something approaching a rule of law. and which is still a rule of practice and of prudence) springs not from the nature of the witness but from the nature of the offence. Never has it been suggested that the evidence of a woman Before the Honourable Judicial Commissioner AwangArmadajaya bin- Awang Mahmud [JB-42H-18-03/2019 & JB-42 H-20-05/2019] December 21, 2020 as such invariably calls for corroboration. If a woman says her handbag has been snatched and if she is believed there can be no question of a : conviction ‘on such evidence. ‘being open’ ‘to ‘attack. for. want. of corroboration. If, however, she complains of having been raped then both prudence and practice demand that her evidence should be corroborated. | would like to explain that what his. Lordship said in DIN (supra) is not gender biased but the specific nature ‘of the offence because his Lordship said that “....the desirability for corroboration of the evidence of the prosecutrix in a rape case springs not-from the nature of, the witness - but from the nature of the offence” It is easy for person or persons fo claim-sexual violation(s) and once this has gone through the social media and the news, it is difficult for the accused person to clear his name. The Court cannot allow personal attacks against individuals be. made without according the right of the accused person to defend his good name. In the case of DATO' SERI ANWAR IBRAHIM (supra), the “victim” was a 22 year old man. The accused in that case, denied the carnal intercourse against the order of nature but the Charge was that under section 377B Penal Code which is consensual in nature (because the of the lack of the requirement of non-consensual act) but the key witness, the victim alleged that force was being used making itinstead an offence under section 377C Penal Code. While this does not vitiate a Charge or conviction under section 377B, as consent is not an issue, nevertheless it may give rise to the inference that the Prosecution has reservations to act wholly on the evidence of the “victim” in preferring a Charge under section 377B instead of one under section 377C Penal Code. Before the Honourable Judicial Commissioner AwangArmadajaya bin 25 Awang Mahmud UB: -42H-18- 2083/2019 & JB- “42H- 20- 7205/2019] December 21, 2020 Lord Goddard CJ in R V. CAMPBELL [1956] 3 AL ER 272 delivering the judgment of the Court. of Criminal Appeal had this to say on-the same. point: . The sworn evidence ofa child need not asa matter of law be.corroborated .. but ajury should be warned not that they must find corroboration but that there is a.risk in acting on the uncorroborated-evidence of young boys or girls though they may do so if convinced the. witness is telling the truth, and this warning should also be given where a young boy or girl is called to corroborate the evidence either of another child, sworn or unsworn, or of an adult. The evidence ‘of an unsworn child can amount: to corroboration of sworn evidence though a. particularly careful warning should in that case be given. AS proper warnings were given by the learned Deputy Chairman in this case there is no ground on which we can interfere with the conviction. Coming back to DIN V. PP [1964] MLJ 300, gender is not an issue but reservations on account of the nature of the offence and not on the account of gender. It is as his Lordship observed ‘has not yet crystallized into something approaching a rule of law and which is still a rule of practice and of.prudence”. Lord Goddard also see it as to the nature of the offence and that a child giving an unsworn evidence and not on the issue of gender biasness when his Lordship said this “there.is a risk in acting on the uncorroborated evidence of young boys or girls though they may do so if convinced the witness is telling the truth, and this warning should also be given where a young boy or girl is called to corroborate the evidence either of another child, sworn or unsworn, or of an adult.” | say this because for something which maybe consensual (as in statutory Tape) or allegations of sexual intercourse which is an offence under the Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] Jeconteowaeraiae law, whether consensual or otherwise (as in carnal intercourse against the order o of nature), the Court cannot be too careful after observing that these allegations are aplenty these: days and many a tines, it is used for the character assassination. Hence, corroboration is very much a matter of desired evidence . particularly when the allegations or Charge does not require consent. For a sexual offence that requires consent, then the issue of criminal force is alive to a certain extent because one cannot help but see it as a use of criminal force, very much like robbery or murder, i.e. the purpose of more of the show of force or strength ona legs-than- -equal victim particularly i in terms of physical or brute force. On the issue of corroboration, where it is desirable but there are circumstances where the Court may act on the evidence of the victim - (particularly when it is non-consensual) which borders into the use of brute force more than gratification sexual desires alone. It is in instances like this, that rape is an act or acts that illustrates the use of force against another human being (who may be physically weaker and hence more vulnerable) than pure sexual gratification alone. Protecting the victim is protecting the society from the likes of man (used in the general meaning and not the gender context) who through.a Sadomasochismic (also known as “masochist”) mind subjugate another to pain and suffering, and worse still, find pleasure in that. | found on the facts of this case, the victim is a young girl of 11 years old, who saw the accused every day because he is her step-father, who is not averse to using criminal intimidation by means of a machete on members Before the Honourable Judicial Commissioner AwangArmadajaya bin 27 Awang Mahmud ; [JB-42H-18- “03/2019 &IB42H “20: 05/2019] _December 21, 2020 of the family, to cowed or silenced them down, and they are staying in nthe . same house and from where she could not escape from because of her young age. The warning from the accused is enough to silence her into submission that she, as the evidence goes, endured that pain by separating: herself. from the pain. inflicted and. more: gravely, inviting - thoughts of suicide. In PP V. MARDAI [1950] 16 MLJ 33, his Lordship Justice Spenser Wilkinson had occasion to say: Whilst there is no rule of law.in this. country that in. sexual offences the evidence of the complainant must be corroborated; nevertheless. it appears to me, as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusually convincing or there. is some corroboration of the complainant's story. It would be Sufficient, in my view, if that corroboration consisted only of a subsequent complaint by the complainant herself provided that the statement implicated the accused and was made at the first reasonable opportunity after the commission of the offence. (emphasis added) | The “unusually convincing" test was explained in PP V. MOHAMMED LITON MOHAMMED SYEED MALLIK [2008] 1 SLR 601 in the following words: .. testimony that, when weighed, against the overall, backdrop of the available facts and circumstances, contains that ring of truth which leaves the court satisfied that no reasonable doubt exists. in favour of the accused. Before the Honourable Judicial Commissioner .AwangArmadajaya bin Awang Mahmud - [JB-42H-18-03/2019 & JB-42H-20:05/2019] [MN Posoulaoaeaeeatau The Indian Supreme Court in STATE OF KERALA V. KURISSUM . MOOTTIL ANTONY [2007] AIR SCW 1507 took a similar stand that . corroboration | is ‘not a pré-condition to secure a-conviction in sexual offences. What is required is that a judge must be conscious, as a matter. of prudence, that in some instances it is necessary to have corroboration. It opined: Gorroboration is not the sine qua non for conviction in a rape case... The rule, which according to the cases has’ hardened into one of law, is not that corroboration is essential before there can bea conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to.dispense with it, must be present to the mind of the judge... A judge is entitled in law to convict even without corroboration if convinced of the truth of a complainant's evidence. (CHIU NANG HONG V. PP [1965] 1 MLJ 40 PC). if the evidence of a complainant in a sexual offence inspires confidence then it should be-relied upon without the need of corroboration. It has been said that a refusal by the courts to convict based on the testimony of a victim of a sexual offence alone in the absence of corroboration, amounts to "adding: insult to, injury" (BHARWADA BHOGINBHAI HIRJIBHAI V. STATE OF GUJARAT [1983] SC 753). Corroboration is independent evidence which implicates the accused by connecting or tending to connect him with the crime (THE KING V. BASKERVILLE [1916] 2 KB 658). This may be in the form of independent witnesses or medical evidence (SYED_ABU TAHIR MOHAMED ESMAIL Before the Honourable Judicial Commissioner AwangArmadajaya bin 29 Awang Mahmud : [JB- 42H -18-03/2019 & JB-42H-20- 05/2019] “December 21, 2020 V. PP [1988] 3 MLJ 485) or other. scientific evidence such as DNA (Deoxyribonucleic Acid) profiling, : In our instant case, apart from the corroboration that came in the form of DNA Profiling Report and. Medical Report, the conduct through’ the evidence of relatives. The Prosecutrix told PW9 through the Facebook chats and after a week PW9 went to. the victim’s house and, PW1 narrated the story in greater _ detail i.e. the rape incidents by the step father which happened in the bathroom and her room while her mother was fast asleep. PW9 then informed the aunty of the victim who is PW3 through the Facebook chats. This was unchallenged by the accused person. PW? then testified that the victim and PW3 chatted on Facebook and during the chat sessions, PW1 informed. PWS that she was raped by the step father for the past 2 years. PW1 informed PW3 that she was first raped in Kelantan. In Kluang, the victim was raped in her room and the bathroom. PW3 asked PW1 to quietly come to her house, 2 or 3 days later after the chat, PW1 stole her way out of the house to PW3 house and related to PW3 the whole story of the rape incidents. While PW1 told her the story, PW3 said PW11 was scared, crying and said she no longer wants: to live anymore. After hearing her story, PW3 told her elder brother Afizan to lodge a police report. The evidence of PW3 was consistent with PW1 on the evidence that PW1 was raped in the bathroom and her room. Before the Honourable Judicial Commissioner AwangArmadajaya bin 30 Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] JENcoulaws ALA The mother of PW1, i.e. PW4 gave evidence that PW1 told PW4’s friend, : Abdul Hamid’ that the accused person raped her. PW4 came to: know. of . the rape incidents through Abdul Hamid. Later PW4 ask PW1 about the rape incident a week before the last:incident.on the 19 October.2015. PW4 testified that the victim PW1 have been frequently raped by the accused at their house in Kjuang. In this instant case, the victim. PW1 lodged a police report a few house after she was raped on 19 October 2015 which happened between 6 am until 7 am and PW1 lodged a report on 1.25 pm on the same day. " ‘The conduct of the Prosecutrix that she had to stealthily escaped from the house to meet PW3 to narrate her story and the.evidence of PW3 that the Prosecutrix “was scared, crying and said she no longer wants to live anymore” is a conduct within the meaning of section 8 and 9 Evidence Act 1950 Section 8 reads as follows: 8 Motive, preparation and previous or subsequent conduct (1) Any fact is relevant which shows or constitutes a motive: or preparation for any fact in issue or relevant fact. (2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Before the Honourable Judicial Commissioner AwangArmadajaya bin 31 Awang Mahmud ; . . - [JB-421-18-03/2019 & JB-42H-20-05/2019] Renee Me - ILLUSTRATIONS (@j) The question is whether A was ravished. The facts that shortly after the alleged rape she made a complaint relating ° to-the: crime, the circumstances under which and the terms in which the complaint was made are relevant. The fact that without making a complaint she said that she had been ravished is not relevant as conduct under this section, though it may be relevant- (i) asa dying: declaration under section 32(1 1)(a); or (ii) as corroborative evidence under section 157. * Since the facts-in-issue is the violation of the person of the prosecutrix, her conduct in face of another person before this case was reported to the authority is a relevant fact and it has a a fortifying effect on the allegations that she made. PW3 is neither the police nor the medical officer nor was the incident after the investigation has commenced. Unless it can be shown that she (the prosecutrix) pre-planned this, it cannot be assume to be so. Hence fora young girl, victim of sexual violation of the worst kind, to open up and seek help and the sense of “helplessness” rings a Halo of Truth on her evidence. Section 9 Evidence Act 1950 stipulates: 9 Facts necessary to explain or introduce relevant facts Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact'in issue or relevant fact happened or which show the relation of parties by whom any Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] MB ecamnamea eau such fact was transacted, are relevant so far as they are necessary for. that purpose. ' Itis also in evidence that the Prosecutrix (PW) through PW9 who testified that PW1 told him that her step father raped her many times at the bathroom of the house where she is staying while her mother was asléep. PW1 told PW9 through the Facebook chats and after a week PW9 went to the victim’s house and PW1 narrated the story in greater detail i.e. the " rape incidents by the step father which happened in the bathroom and her room while her mother was fast asleep: PW¢ then informed the aunty of the victim who is PW3 through the Facebook chats. The above facts, though not a fact-in- -issue but it helps puts things in perspective. The importance: “of this cannot be underestimated. Consistency in evidence is important particularly in the assessment or evaluation of evidence. This is more so to find whether a prima case has been made out against the accused person. in IBRAHIM MOHAMAD & ANOR V PP (2011) 4 CLJ 413 the Federal Court has this to say, inter alia [19] The prior conduct of both the accused in the present case to show that they lack the mens rea of Knowledge is relevant under s. 8(2) of the Evidence Act 1950 which provides as follows: ©’ — Co : 8. Motive, preparation and previous or subsequent conduct. (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. Before the Honourable Judicial Commissioner AwangArmadajaya bin 33 Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] , (2) The conduct of any. party, or of. any agent to any party, to any suitor | proceeding in reference to that suit or - proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. [20] Based on the above s. 8(2) of the Evidence Act1 950, there are two_types of conduct which is relevant, namely prior_and subsequent conduct. Evidence of conduct is an equivocal act and is capable of more than one interpretation. Accordingly, evidence of conduct must not be referred to.in isolation, instead, conduct — must be considered with ottier‘evidence or circumstances. : In the case of RIDWAN V. PP [2010] 4 CLJ 570, the appellant was charged for the offence of drug trafficking. The appellant was seen behaving suspiciously and upon approaching the Customs checkpoint, the appellant started retreating and running towards the immigration counter before he was eventually apprehended by security officers. The court found the prior conduct of the appellant before being arrested showed he was behaving suspiciously and therefore it can be inferred that he had the mens rea to commit the offence. As his Lordship, Justice Augustine Paul said in the judgment of the Federal Court in PARLAN BIN DADEH V. PUBLIC PROSECUTOR [2009] 1 CLJ 717 at p. 747: “if the explanation is accepted by the Court then the inference arising from the conduct is rebutted. If it is not accepted or if the accused does not explain his conduct the inference remains unrebutted. Before the Honourable Judicial Commissioner AwangArmadajaya bin 34 Awang Mahmud 7 i [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 The above cases are on drug trafficking but the principle of lawis the same in evaluation of witnesses as well as their evidence. . The statements that the Prosecutrix gave to PWS and PW9 were adduced . and this falls within section 157 Evidence Act 1950 which stipulates “In’ order to corroborate the testimony of a witness, any former statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time , when the fact took place, or before any authority legally competent to investigate the fact, may be proved.” , In an article, "Corroboration by Former Statements" by S. Augustine ~ Paul published in the Malayan Law Journal [1990] 2 MLJ xci. That article discussed the position of s. 157 of the Evidence Act in the light of s. 73A which was added to the Act by virtue of PU(A) 261 of 1971. At p. xcv, the learned author writes: “Once it has been established that the first limb of s. 73A(7)applies to the: evidence of a particular witness of a specified class then the second limb of the said section will be automatically activated. This would mean that such a statement, though rendered ‘admissible by the Evidence Act 1950,shall not be treated as corroboration of evidence given by the maker of the statement. This mandatory direction would apply, in particular, to Statements admitted under s. 157. The inevitable result is: that s. T3A(7 ) will now operate to exclude out-of-court statements admitted under s. 157 form being of any corroborative value to ‘the testimony of the maker. Section. 157, the plague of the courts for decades, has been rendered nugatory. Section. 157 must.now. operate subject to s. 73A(7). Before the Honourable Judicial Commissioner AwangArmadajaya bin 35 Awang Mahmud __UB- -42H- 18- 703/2019 & JB “42H- 20-05/2019] = <bieeam Der 21, 2020 : The author concludes his article by stating, "Iti is.. _ submitted that... 73A(7) has the statutory power to wipe out and nullify the effect of s. 4157 thus rendering the said section otiose." In LIEW WAH MING V. "PP. [1963] 1 LNS 7OL1963] 29 MLJ 82. his, Lordship, Chief Justice Thomson said: Section 157 is clear and unambiguous and there can be no doubt that in the circumstances laid down in that section a former statement made by a witness is admissible to corroborate his testimony at and \ with the object of showing consistency. : But the weight or value of such a.statement as corroboration must always be a question of fact... While, therefore, the former statement of an accomplice or....of a child is admissible to corroborate his testimony and . to indicate consistency the weight to be attached to it must vary with the facts of each case. See also R V. VELAYUTHAN 1935] 4 MLJ 277; R V. KOH SOON POH 11935] 4 MLJ 120; MOHAMED ALI V. PUBLIC PROSECUTOR [1956] 1 LNS 68; KARTHIYAYANI & ANOR. V. LEE LEONG SIN.& ANOR. [1974] 4 LNS 61; PP V. SAMSUL KAMAR MOHD ZAIN [1988] 2 MLJ-252. Having studied the authorities, J am of the view that the statements of the Prosecutrix to PW3, PW9 and PW4 are admissible and may constitute consistency if not corroboration of the primary evidence that she gave. ii; Whether there was any corroboration to the Prosecutrix’s evidence Before the Honourable Judicial Commissioner AwangArmadajaya bin 36 Awang Mahmud . ; [JB-42H-18-03/2019 & JB-42H-20-05/2019] [eee eae The Cambridge English Dictionary (Cambridge University Press 2020) - defined “Corroboration’” as “the act of proving an account, statement, idea, etc. with new information:” The Oxford English Dictionary defines “Corroboration’ as “Evidence which confirms or supports a statement, theory, or finding; . confirmation.” The case of R V. BASKERVILLE [1916] 2.KB 658 is worth quoting. Itis as follows: ‘Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it. In SIDEK BIN LUDAN v. PUBLIC PROSECUTOR [1995] 4 MLRH 630, a divorcee by the name of Rosnah bte. Junid (Pw - “Rosnah") with two infant daughters [Roslayati bte. “Abdullah (PW5.- "the victim") and Rosfadillah bte. Abdullah (PW7 - "Rosfadillah")} rented a house belonging to the appellant at RM40 per month. There was evidence that prior to this, Rosnah and her two infant daughters rented another house and, at the invitation of the appellant, Rosnah decided to rent the appellant's house. The house rented by Rosnah was not far from the house occupied by the appellant and his family. Rosnah worked at a factory and had to leave her - two infant daughters at home every day unattended. Rapport soon developed between the appellant and Rosnah' s two infant daughters. The appellant developed a liking for the victim and this spelled trouble. Thus, on 28 April 1991 (the second charge) in the morning, the appellant like a Before the Honourable Judicial Commissioner AwangArmadajaya bin 37 Awang Mahmud ; [JB-42H-18-03/2019 & JB-42H-20-05/2019] Ma eeennee A hungry cat came and raped the. victim. There was evidence that prior to this, the appellant had between February and March 1991 (the first charge) at an empty hut at an oil palm estate belonging to the appellant, . the appellant raped the: Victim... His. Lordship, Justice Abdul. Malik [Ishak has this to say, inter alia, In my judgment, the evidence of the victim was sufficiently corroborated by the two doctors who examined the victim and the appellant respectively. In a case of this nature, medical evidence adduced by the . prosecution is sufficient to ‘corroborate the evidence ‘of the ‘Victim: see Ratanlal and Dhirajlal, The Law of Crimes, 22nd Edn., p. 965. It is alsomy judgment that the evidence of the victim was corroborated by her mother, Rosfadillah and Norakmawati. In SIDEK LUDAN (supra) there. were ample opportunity for the Appellant to commit the rape that is when Rosnah worked at a factory and had to ‘leave her two infant daughters at home every day unattended. Rapport soon developed between the appellant and Rosnah's two infant daughters. The appellant developed a liking for the victim and this spelled trouble. “Opportunity to commit crime” is a relevant fact under section 6 and 11 Evidence Act 1950. Coming back, the Question to ask is What constitute “corroboration”? Foran evidence to be’of corroborative value it must: (a) be capable of belief; (b) be independent in the sense mentioned in proposition 3(c) above; . Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 “(ey in respect of the'fact or facts that lie at the axis-of the dispute; that is to say, upon the fact in issue and not upon some collateral matter or upon a fact in respect of which. there is no quarrel. In.other ~~ words, it must be corroboration upon a material particular but need not be identically repetitive of the evidence that requires - corroboration. At common law, a trial court is entitled ‘to act upon uncorroborated evidence which in itself requires corroboration provided that it warns itself of the danger of so acting. The warning must not amount to mere lip service. Good reasons must be furnished for departing from the accepted rule. Departure from the normal rule maybe justified where the evidence requiring corroboration emanates from a witness who is a person of high character and the offence is one that does not carry with it any serious moral stigma. . (See LIM GUAN ENG v. PUBLIC PROSECUTOR & OTHER APPEALS [1998] 3 CLJ 769) - In our instant case, the corroboration comes in the following forms: a. The evidence of PW7, Dr. Noryazlina Binti Md. Ali (an Obstetrics and gynaecology specialist at Enche Besar Hajjah Khalsom Hospital in Kluang) was that she examined PW1 when PW1 was brought in by the Police an 19 October 2015. PW7 examined the genitalia of PW1 and found there are old tears at'6 O'clock and 7 O'clock positions. PW7’s evidence was that the old tears on the hymen were caused by blunt objects such as a male phallus. It is an old tear because it was at the time of examination, more than 72 Before the Honourable’ Judicial Commissioner AwangArmadajaya bin 39 Awang Mahmud ; [JB-42H-18-03/2019 & JB-42H-20- 05/2019] December 21, 2020 hours. Although the alleged incident was said to happen on the same day as the examination, PW1 had been raped many times ‘~. before which explained the old tears. PW1's evidence: was that she was raped since 2014. b. A Medical Report (Exhibit P14) was tendered through PW6 Dr. Noradila Binti Bohari a Medical Officer from the Department of Obstetrics & Gynaecology at the same hospital. PW6 evidence was that she assisted PW7 in examining PW1 where PW6 took PW1’s medical history and swab. samples from the vagina of PW1 to be analysed for DNA. . c. The sample was analysed by PW8 Dr. Nur Hafiza Binti Md Yusop, ’ a Science Officer from the Department of Chemistry who confirmed that the seminal fluid on PW1’s panties (P28A) and t-shirt (P30A) matched with the DNA profile of the Appellant’s blood specimen sample. PW8 also confirmed that the DNA profile obtained from the seminal stain on PW1's hight dress (P27A) showed that: , i. The contributor is a male and it matches the DNA profile of the blood specimen sample labelled Suharman bin Mohamed Noor _and they are both from the same source. — ii. Female contributor from non-sperm source matches the DNA Profile marked E1 labelled with the Prosecutrix’s name and it showed that the DNA profile is from the same source. PW8's evidence was that the DNA profile obtained from seminal stains on the sarong (P29A) showed that: , Before the Honourable Judicial Commissioner AwangArmadajaya bin 40 Awang Mahmud | TJB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 i. Asingle male contributor.on the spermatozoa that matches the DNA profile obtained from the accused blood specimen and it is from the.” same source. oii A mixed DNA from non-spermatozoa from one male and one female contributor where the blood: specimen -E9 labelled Suharman bin Mohamed Noor and blood ‘specimen’ E1 labelled the Prosecutrix’s ~ name are consistent with the mixed DNA sample. ~ PW8 then tendered the Chemist Report that she ‘prepared and was marked P16. The evidence of PW8 on the presence of the accused DNA profile on the Exhibits P27A, P28A, P29A and P30A are’ corroborative evidence that support the evidence of PW1 that on 19 October 2015, the accused ejaculated on. her body and wiped it off with a piece of used — clothes. d. PW6 is a medical officer from Enche’ Besar Hajjah Khalsom Hospital, Kluang gave evidence that she took 6 swaps as samples from the vagina of the victim. PWé. PW8 gave evidence that the DNA analysis showed that there was no male or foreign DNA profile on the 6 swab samples marked E2, E3, E4, E5, E6 and E7 taken from the vagina of PW1. This corroborates the evidence of the Prosecutrix that the ejaculation was done outside her vagina and on her body. e. PW9, the foster brother of PW1 testified that.PW11 told him that her step father raped her many times at the bathroom of the house where she is staying while her mother was asleep. PW1 told PW9 through the Facebook chats and after a week PW9 went to. the Before the Honourable Judicial Commissioner AwangArmadajaya bin 41 Awang Mahmud . a, / : [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 victim's house and PW1. narrated the story in greater detail i.e. the rape incidents by thé step father which happened in the bathroom and her room while her mother was fast.asleep. f. PW3 then testified that the victim and PW3 chatted on Facebook and: during the chat sessions, PW1 informed PW3 that she was raped by the step father for the: past 2 years: PW3 asked PW1 to. . quietly come to her house. 2 or 3 days later after the chat, PW11 stole her way out of the house to PW3 house and related to PW3 the . whale story of the rape incidents. While PW1 told her the story, PW3 said Pw was scared, crying ¢ and said she | no 9 longer wants to live anymore. Having perused over the Appeal Record, | find there are ample corroboration that supports the narration of events by PW1. These corroborations are. independent, Capable of belief, uninterested witnesses and where DNA profiling i is concern, ‘itis very capable of belief. In GADE LAKSMI MANGARAJU V. STATE OF ANDRA PRADESH AIR [2001] Supreme Court 2677, it was held that Presence of a fingerprint ‘at the scene of occurrence is a positive evidence. But the absence of a fingerprint is not enough to foreclose the presence of the persons concerned at the scene. If during perpetration of the crime the fingerprint of the culprit could possibly be remitted at the scene it is equally a possibility that such a remnant would not be remitted : at all. Hence absence of finger impression is not guarantee of absence of the person concerned at the scene. Before the Honourable Judicial Commissioner AwangArmadajaya bin 42 Awang Mahmud - . . gaddecgmber 21, 2020 [JB-42H-18-03/2019 & JB-42H-20-05/2019] In DATO' SERI ANWAR IBRAHIM v. PP & ANOTHER APPEAL [2015] 2 CLJ 145, the Federal Court (through the learned judgment of his _ Lordship, Chief Justice Arifin Zakaria) discussed this at length,. [104] We now deal specifically on how scientific evidence had proven that the DNA profile of Male Y can be linked to the ‘appellant, thus corroborating PW1's allegation that he was sodomised by the appellant. In Rusman Sulaiman v. PP [2013] 4 CLUJ 305 this court said: Itis now accepted by courts that bodily fluid, tissues, semen, saliva etc. obtained from the crime scene may be established to connect an accused person to the crime... [105] In the present case, PW2, PW3 and PW4 took swabs from the rectal region of PW1, and, as confirmed by PW5's DNA analysis, sperm was found in PW1's rectum. PW5 stated that.by logical deduction, if sperm was detected in PW1's rectum,:then there must have been penile penetration. This piece of evidence corroborates the allegation of PW1 that he was sodomised by the appellant. [106] Whether the anus was torn or bruised is not, in our view, an issue which could refute the fact that PW1 had been sodomised. According to PW2, PW3 and PW4, the absénce of such injury could have been due to the lapse of time prior to seeing the doctors, no undue force having been applied and the use of lubricant. This explanation in our view is plausible and we accept it DNA Evidence [107] What is critical in the present case is the DNA evidence adduced by the prosecution to corroborate PW1's evidence on the factum of penile penetration, an ingredient of the offence. In view of that, we will now embark on a detailed examination of the DNA evidence. Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 " [108] The Chemists (PW5 and PW6). carried out the Polymerase Chain Reaction (PCR) test in conducting the DNA examination and analysis. PCR is a biomedical technology in.molecular biology developed in 1983 by Kary Mullis. PCR is used to amplify a single copy or a few copies of a piece of DNA across several orders of magnitude, generating thousands to millions of copies: of a particular DNA.. sequence (Handbook. of > Molecular and Cellular Methods in Biology and Medicine, 3rd edn.: edited , by Leland J. Cseke, Ara Kirakosyan, Peter B. Kaufman, Margaret V. Westfall; Taylor & Fraricis Group, US; 2011). - [109] By this method, when any cell divides, enzymes called polymerase makea copy of the entiré DNA.in each chromosome. The first step in this process is to "unzip" the two DNA chains of the double helix. As the two strands separate, DNA polymerase makes a copy using each strand asa template. This is stated in the eviderice of PWS which reads: PW5 '* §: Eartier in your testimony, you mentioned about the tectinique that you have adopted in analysing the specimens given to you for DNA analysis, You ‘mentioned about the Polymerase Chain Reaction technique. Can you explain what Polymerase Chain Reaction technique is? J: Polymerase Chain Reaction is.a technique which is used to amplify DNA meaning making millions of copies of DNA from an original template and this reaction is carried out with the aid of enzyme called detect polymerase and other reagents in an instrument known as the thermalcycler. The objective of PCR is to amplify DNA and at specific target of the DNA geno. This specific targets are the STR loci which are stated in my report. So, the end result of PCR is product which are million fold copied of DNA at this specific targets. Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] Reeser [110] This technique is now widely used around the world in DNA investigation. The advantage of this technique is that it increases the sensitivity of detecting the DNA because of the amplification. « PW5 further explained the advantage of using the PCR technique ‘in carrying out the DNA analysis. In the examination-in-chief, she stated: ‘Ss What was the technique adopted before thé PCR technique was — adopted? , J: Before the PCR technique, the Forensic DNA community was using a technique known as RFLP, Restriction Fragment Length Polymorphism. That was before the invention of the > thermalcycler and invention of the PCR techiniques. , S; Can you explain what are ‘the advantages in using the PCR technique compared to the Restriction Fragment Length Polymorphism technique? J: The PCR technique increase the sensitivity of detecting DNA because of the amplification. In addition, it is able to analyse the graded (sic) DNA, smaller fragments of DNA or rather DNA of a poor quality compared to the previous techniques RFLP which uses or which requires high quality DNA for a successful analysis. in DATO' SERI ANWAR IBRAHIM (supra), his Lordship explained so well why DNA may be’ used as a corroboration to primary evidence of a witness. This is coupled with the fact that the extraction & collectiori of evidence, safe custody and transport as well as analysis are all done by independent witnesses who are both proféssionals and experts. No challenge was Before the Honourable Judicial Commissioner AwangArmadajaya bin 45 Awang Mahmud -_B-42H-18-03/2019 & j8-428-20-05/2019] Jee mounted by the Appellant against those evidence and since they are | giving on oath and no motive to concoct the evidence and neither were the evidence inherently incredible or of a romancing nature, | have no hesitation to accept them and act on them to make a judgment of this case. Hence, in our instant appeal, the presence of DNA shows and as confirmed by DNA analysis, sperm was found in PW1's night dress. PW8 stated that by logical deduction, if sperm was detected in PW1's. dress, then there must have been penile ejaculation of seminal fluids. ‘This piece of evidence corroborates the allegation ‘of PW1 that she was. violated sexually by the appellant. iii. | Whether there is sufficient evidence to constitute a prima facie case against the Appellant Prima facie evidence is found under s. 173 Procedure in summary trials of the CRIMINAL PROCEDURE CODE (REVISED 1999) (h) (i) If the Court finds that a prima facie case has been made out against the accused on the offence charged, the Court shail call upon the accused to enter on his defence. (i) If the Court finds that a prima facie case has been made out against the accused on an offence other than the offence charged which the Court is competent to try and which in the opinion of the Court it ought. to try, the Court shall amend the charge. , fii) For the purpose for subparagraphs (i) and (ii), a prima facie case is made_out against the accused where the prosecution has adduced Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 credible evidence proving each ingredient of the offence which if ’ unrebutted-or ‘unexplained would warrant a conviction. In BALACHANDRAN v. PP [2005] 4 CLJ 85, the Federal'Court (through the learned judgment of his Lordship; Justice Augustine Paul, ruled inter _ alia, Aprima 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, The phrase "prima facie case" is defined in similar terms in Mozley and Whiteley's Law Dictionary, 11!" edn as, A litigating party.is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side. ; The result is that the force of the evidence adduced must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts exist or did happen. On the other hand if a prima facie case has not been made out it means that there. is_no material evidence which can be believed _in the sense as described earlier. In order to make_a finding either way the court must, at the close of the case for the prosecution, undertake a positive evaluation of the credibility and reliability of all the evidence adduced so as'to:'determine whether the ‘elements of the offence have been established. Before the Honourable Judicial Commissioner AwangArmadajaya bin 47 Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 The Charges that the Appellant faced were. all Charges under section 376(3) Penal Code (Act 574). The ingredients of which, are as follows: There is sexual intercourse between the man and woman. The sexual intercourse was without consent or if with consent, the woman is not in a position to give consent on account of below 16 years of age or under duress or threats or Coercion or any combination. The woman and man are prohibited by law or religion or custom to enter into a marriage. It is in evidence of the following: The Appellant has sexual intercourse with PW1 by her own evidence which was corroborated by PW8 and PW7. PW1 was both under aged and forced into the sexual intercourse by threats and duress by the Birth Certificate of PW1 as well as PW3’s evidence of her age. The evidence that she was coerced into having sexual intercourse with the Appellant was from her own apart from PW3, PW4 and PW9 evidence. _ The fact that PW1 and the Appellant are prohibited by Muslim Law to enter into a marriage comes from the Marriage Certificate of the mother (PW3) and the Appellant ‘as well as. the evidence of PW3 and PW11 (the Registrar of Muslim Marriage and Divorce, Islamic Affairs Department). Before the Honourable Judicial Commissioner. AwangArmadajaya bin 48 Awang Mahmud _UB- -4.2H-18- 7038/2089 & JB- -42.H- 20: 0-05/2019] December 21, 2020 ‘The collective ‘effect of all these i is ; that “the ‘evidence adduced must be | such that, if unrebutied, it is sufficient to induce the court to believe . in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the --supposition that those facts exist or did happen” | have also scrutinised the cross-examination . of the. Prosecution witnesses and the cross- -examination may be summarised as follows: i. this case is as a result of revenge by the brother-in-law and an . entrapment case. . _ ii. The delay in lodging a police report. iii, Other people raped the victim. iv. Discrepancies in the victim’s evidence. v. The colour of the victim's underwear is different. | found none of the above holds water because of the following: a. It is not an entrapment case because independent evidence comes from the PW10 (the Investigation Officer), PW6 (Medical officer) PW7 (gynaecologist) and PW8 (Science officer who analysed. DNA samples, corroborated PW11’s evidence in no small measure. The Prosecutrix complained to PW3 and PW9 of the rape incident on 19 October 2015 and PW1 was brought to the Police Station on the same day-at 4.25 pm. Medical examinations were conducted at the same day.. (See DATO' SERI ANWAR IBRAHIM v. PP & ANOTHER APPEAL [2015] 2 CLJ 145, LIM GUAN ENG v. PUBLIC PROSECUTOR & OTHER Before the Honourable Judicial Commissioner AwangArmadajaya bin 49 Awang Mahmud ; ; . wDeacember 21, 2020 [JB-42H-18-03/2019 & JB-42H-20-05/2019] APPEALS [1998] 3 CLJ 769, STATE OF MAHARASHTRA V. : CHANDRAPRAKASH KEWALCHAND JAIN: [1990] 1 SCC.550, R V. ~ VELAYUTHAN 1935] 4 MLJ 277; R V. KOH SOON POH [1935] 4 MLJ 120; MOHAMED ALI V. PUBLIC PROSECUTOR [1956] 1 LNS 68; KARTHIYAYANI & ANOR. V. LEE LEONG SIN & ANOR. [1974] 1 LNS 61; PP V. SAMSUL KAMAR MOHD ZAIN [1988] 2 MLJ 252. b. There was no delay in lodging a report because the last incident was on 19 October 2015 and the police report was lodged on the same day. Swap samples taken and examination of PW1 were done on the same day. PW8 analysis revealed that there were. DNA material consistent with the spermatozoa source of the Appellant found on the night dress of PW1 and sarong. As to the previous incidents, the explanation that PW1 was very scared is amply corroborated by her conduct as found in the evidence of PW9, PW3, PW4. (see DATO' SERI _ ANWAR IBRAHIM v. PP & ANOTHER APPEAL [2015] 2 CLJ 145, LIM GUAN ENG v. PUBLIC. PROSECUTOR & OTHER APPEALS [1998] 3 CLJ 769. : | : c. There is no evidence of other people having sexual intercourse with the Prosecutrix. because the evidence of PW8 was that there is only the Appellant’s DNA from spermatozoa source. No other DNA material (apart from PW1’s own DNA material) was present. (see DATO' SERI ANWAR IBRAHIM v. PP & ANOTHER APPEAL [2015] 2 CLJ 145, LIM GUAN ENG v. PUBLIC - PROSECUTOR & OTHER APPEALS (1998) 3CLJ 769. Before the Honourable Judicial Commissioner AwangArmadajaya bin 50 - Awang Mahmud ; : ; _ [JB-42H-18-03/2019 & JB-42H-20-05/2019] ccniewaaAv d. There are no major discrepancies in PW1’s evidence. If at all, | - there are minor ones. ‘On the contrary, there are ample corroborative evidence to support PW1’s evidence. (see LIM - GUAN’ ENG v..-PUBLIC. PROSECUTOR & OTHER ‘APPEALS ~ [1998] 3 CLJ 769, STATE. OF MAHARASHTRA Vv. - CHANDRAPRAKASH KEWALCHAND JAIN [1990] 1 SCC 550. - e. The colour of the PW1’s underwear is different. This is not a major issue. because it does not. vitiate the.larger-evidence. There may be some variation of evidence but this is perfectly normal for an ordinary human witness to make mistakes in recollection of the small details. Perfect evidence may sometimes raised the suspicion that the evidence is rehearsed or planned out (see PP v. DATUK HAdI HARUN HAUJI IDRIS (NO 2) [1977] 1 MLJ 15, KHOON CHYE HIN V PUBLIC PROSECUTOR [1961] 1 MLJ 1058). oo | Having considered the evidence-in-chief and the cross-examination, | found that the Prosecution succeeded in proving’a prima facie case against the Appellant. iv. Whether the Defence succeeded in creating a reasonable doubt Ihave produced a summary of the Appellant's evidence and compared it with the earlier cross-examination. | do not wish to be repetitive but | found that the crux of the Defence is as per the cross examination i.e. i.. This case is as a result of revenge by the brother-in-law and an ‘entrapment case. Before the Honourable Judicial Commissioner AwangArmadajaya bin 51 Awang Mahmud ; ; [JB-42H-18-03/2019 & JB-42H-20-05/2019] ~ December 2 1, 2020 ji. The delay in.lodging.a police report... iii. Other people raped the victim... iv. Discrepancies in the victim's evidence... « v. The colour of the victim's underwear is different. "| Phave dealt with the testimony of DW1 and:l found that he failed to answer the evidence adduced by the Prosecution’s case: . The following definition of “reasonable doubt" is often quoted from his Lordship Justice Sharma in PUBLIC PROSECUTOR V SAIMIN & ORS - [1971] 2 MLJ 16 who said the following: "It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire - comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge." . it has again been said that ‘reasonable doubt' is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If ‘under ‘your oaths and ‘upon your consciences, after you have fully investigated the evidence.and compared it in ail its parts, you say to yourself | doubt if he is guilty, then itis a reasonable doubt. It is a doubt which settles in your judgment and finds a resting place there. Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an ‘imaginary doubt or conjecture unrelated to evidence." Before the Honourable Judicial Commiissioner AwangArmadajaya bin 52 Awang Mahmud [B-42H-18-03/2019 & JB-42H-20-05/2019] [ames AL The Court of Appeal in the case of NENGGANI ASMO V. PUBLIC PROSECUTOR [2014] 1 MLJ 501 recapitulates the circumstances of _ making a finding of reasonable doubt in.the following words: .. . "Although the benefit of every reasonable doubt must be given to the appellant and cannot be withheld from her, the court must not entertain it on grounds which are fanciful or in the nature of speculation; it is based upon-reason and common sense and cannot be illogical or irrational. The existence of reasonable doubt is dependent upon the. totality of ‘the evidence and on an examination of all the evidence in a fair and reasonable manner and not in isolation." A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence. | found nothing of the sort was raised by the Appellant. v. | Whether the Learned Sessions Court Judge erred in applying the law and the judicial principles when passing sentence. In the instant appeal, there is more than just Rape Simpliciter here. The additional elements above and on top of rape (including statutory . Tape) are: a. Aggravated rape. b. Incestuous in nature. “Aggravate” is defined by the Cambridge English Dictionary (Cambridge University Press 2020) as . Before the Honourable Judicial Commissioner AwangArmadajaya bin 53 Awang Mahmud a _UB- “42H- 18- 03/2049 8B: -42H-20- r05/2019] i. “to make a bad situation worse” or ; ii. “to make a disease worse”. or. iii. “to make someone feel very annoyed and upset” : “Aggravated rape’ isa sexual intercoursé between.a man and awoman- that is not only non-consensual but it was: carried out with threats of violence or intimidation or actual violence onthe woman (victim) OR such — threats of violence or intimidation or actual violence on persons who are connected to or under.the concern of the said woman (victim) OR such threats of violence or intimidation or actual violence on property who are connected to or under the concern of the said woman (victim) OR other factors as enumerated by section 376(2) Penal Code. The other circumstances enumerated are as follows: (a) at the time of, or immediately before or after the commission of the offence, causes hurt to the victim or to any other person; — (b) at the time of, or immediately before or after the commission of the ” offence, puts her in ‘fear of death or hurt to herself or any. other person; (c) the offence was committed in the company of or in the presence of any other person; ee 7 (d) without her consent, when she is under sixteen years of age; (e) with or without.her consent, when she is under twelve years of age; Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud [JB-42H-18-03/2019 & JB-42H:20-05/2019] [Miecemucerseran (f) with her consent, when the. consenti is obtained by using his position of: authority over’ her-or. because of: professional ‘relationship | or ather relationship of trust in relation to her, (g) at the time of the offence the woman was pregnant, - (h) when by reason or-on ‘occasion.of the rape, the woman becomes’ insane; (i) when he knows that he is afflicted with the Human Immuno- Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible.disease and the virus or disease is or may be transmitted to the woman; (j) when by reason or on occasion of the rape, the woman commits suicide; or (k) when he knew of the mental disability, emotional disorder or physical handicap of the woman at the time of the commission of the crime. In aggravated rape, the penalty is enhanced to imprisonment for a term of not less than ten years and not more than thirty years and shall also be punished with whipping. For incestuous rape under. section 376(3) Penal Code, the penalty is imprisonment for a term of not less than eight years and not more than thirty years, and shall also.be punished with whipping of not less than ten strokes. Before the Honourable Judicial Commissioner AwangArmadajaya bin 55 AwangMahmud ._- ee . a coe [JB-42H-18-03/2019 & JB-42H-20-05/2019] For aggravated rape; there is a minimum of 10. years imprisonment and shall be punished with whipping with no minimum number of strokes of the rattan. However,.for incestuous rape the minimum is 8 years but the ‘whipping has a minimum of 10 strokes. © o>. The maximum imprisonment sentence: for both is 30 years imprisonment 7 and 24 strokes of the rattan. ' ‘The term “incestuous” comes from the word “incest” which is defined by Cambridge English Dictionary (Cambridge University Press 2020) as “sexual activity involving people who are closely related and not legally allowed to marry’. The “incestuous” is defined by the same as an adjective and it means “involving incest”. The Cambridge Academic Content Dictionary (© Cambridge University Press) defines “Incest” .as “sexual activity between people who are too closely related tomarry”. — BT a After perusing over the Appeal Record, | find that: . _ @ All parties are Muslims by faith. - b. The marriage between:the biological mother of the victim (PW4) and the Appellant is valid. c. The biological mother of the Prosecutrix (PW4) and the Appellant - have been living together. Before the Honourable Judicial Commissioner AwangArmadajaya bin 56 Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] TigUacoellowaee 474i -d:. Islam prohibits -stepfather..and his stepdaughter .from. getting married, once the marriage between the mother of the victim and the appellant have been consummated. ": e. Since there is no complaint about the marriage not being oe consummated; | invoke section: 114 Evidence Act 1950 which reads (shorn of the irrelevant parts. of the. provision) “The court may presume the existence of any fact which it thinks likely to have © happened, regard being had to the common course of human conduct, in their relation to the facts of the particular case.” Hence, | take it that the marriage has been consummated and hence the prohibition against the Appellant. from ever marrying the Prosecutrix is complete and for all étérnity even if the mother of the prosecutrix died or is divorced from the Appeliant. f. The Appellant forced the Prosecutrix to have sextal intercourse as defined under section 375 Penal Code. SENTENCING PRINCIPLES There are many different purposes of sentencing. There is the deterrent factor, the rehabilitative factor, the punitive factor and the restorative factor. These are by no means exhaustive but these are the most common considerations. “InRV. BALL (KENNETH JOHN) vest 35 Cr App R 164, Justice Hilbery stated: ' Before the Honourable Judicial“Commissioner AwangArmadajaya bin 57 Awang Mahmud 7 [JB-42H-18- 03/2019 &JB- -42H- 20- 05/2019] J December 21, 2020 "In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law. is publicly enforced, not only. with the object of punishing crime, but also in the hope of ‘preventing ta proper ‘sentence, passed i in public, serves the public interest in two” ways, It may. deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender_is caught and brought to justice, the punishment will be negligible. Such-a sentence may also deter the * particular criminal from committing a crime-again, or induce him to turn - from_a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within the maximum, the appropriate sentence for each criminal in the particular circumstances. of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe." One important point to consider i is public interest which is often said, must supersede all. else. ‘What: is Public - Interest? ‘The Random. House Dictionary of the English Language: The. Unabridged Edition. (1994 edition) defines “Public Interest” as “the welfare or well-being of the general public and society”. There are many levels of importance to this concept of Public Interest. The first and foremost is the National Security of the country. Without the national! security in the country guaranteed, there is nothing that one may find, either in the form of Rule of Law, Human Rights, an orderly fashion _ of Governance, Accountability as well as self-regulation by society or accepted public norms. Before the Honourable Judicial Commissioner AwangArmadajaya bin 58 Awang Mahmud pB-42H-1 -18- 03/2019 & JB- 42H-20- -05/2019) | “December 21, 2020 The second is the Public Order where the Rule of Law is respected, procedures followed and_one is:not left bewildered by: the haphazardness ° that is akin to the law of the jungle. - ‘The third is the. media interest where:if invites attention by many, if not. most members of society, that it would: have some impact on the “good feel’. Of course, sensationalist reporting. is. by no: means within this category because there must be good and cogent reason(s) on why society is interested in the issues at hand, be it that it touches on the “nerves of the right. thinking members of the flock for the inconsistency to Grund Norms, Customs and Usages or. the general acceptance of things that happened which later became a matter of interest in the lives of its right thinking members. If there is a conflict between the interest of society: as a whole (as in the “Public Interest’) and private interest, Public Interest must prevail. While not casting individual rights into oblivion, one ‘cannot. but accept that interest of many must necessarily overrides the individuals. The law is there to protect the individual rights as can be seen in the Fundamental Liberties in our Federal Constitution (see Articles 5 to 13). , In PUBLIC PROSECUTOR V. Loo CHOON FATT [1976] 2 MLJ 256 the Court discussed the issues which are as follows: "In respect of sentencing there can be only general guidelines. No fwo cases can have exactly the same facts to thé minutést detail. Facts do differ from case to case and ultimately each case has to be decided on its own merits. In practice sentences do differ not only from case to-case but also from court to court. Alf things being equal these variations are inevitable if only because of the human element involved, But, of course, there must be limits to.permissible variations. Before the Honourable Judicial Commissioner AwangArmadajaya bin 59 Awang Mahmud {JB-421-18-03/2019 & JB-42H-20-05/2019] The principles to be applied in imposing sentence however are the same in every case. The High Court sitting. in exercise. of its revisionary powers ~ will not normally alter the sentence unless it is satisfied that the sentence of the lower court is either manifestly inadequate or grossly excessive or . illegal or otherwise not a proper sentence having regard to all the facts disclosed on the record or to all the facts which the court ought to take ; Judicial notice of, that is to say, ‘that the lower court clearly has erred in applying t the correct principles: in the assessment of the sentence. It is a firmly established practice that the court will not alter a sentence merely because it might have passed a different sentence. sees Presidents and Magistrate are often inclined quite naturally to be over- sympathetic to the accused. This isa normal psychological reaction to the situation in which the lonely accused is seen facing an array of witness with authority. The mitigation submitted by a convicted person will also normally bring up problems of the family hardship ‘and the other usual problems of living. In such a situation the courts might perhaps find it difficult to decide as to what sentence should be imposed so that the convicted person may not.be further burdened with. additional hardship. This in my view is wrong approach. The correct approach is to strike a balance, as far as possible, between the interest. of the public and the interests of the accused. Lord Goddard L. C.J. in Rex-v. Grondkowski [1946] 1 All ER 560 561 offered some good advice when he said: - "The judge must consider the interests of justice as well as the interest of the prisoners. It is too often nowadays thought, or seems to be thought, that the interest of justice means only the interest of prisoners.” The Court must take into account the private interest of the Appellant and measure it against that of. society. In-so doing, the society must be protected from the act or acts of the Appellant while the Appellant be given the opportunity of reforming himself. Protecting the society from the acts Before the Honourable Judicial Commissioner AwangArmadajaya bin 60 Awang Mahmud. pag . . . . [JB-42H-18-03/2019 & JB-42H-20-05/2019] of the Appellant or like-minded individuals in the illegal/acts-and itis also to protect the Appellant from the very act that he committed, by deterring others from committing. the very same aci(s) unto him. Hence. it must be 7 remembered that protecting society at ‘large also means protecting the’ Appellant himself. In this case, protecting the Appellant: from sexual violation by anyone or fromthe act of violating others: ‘Hence, if the Appellant is restrained from violating anyone, then the Appellant would be protected from the long arms of the law - Hence among the factors to be taken into account are (but not limited to) i. The seriousness of the offence. ii. The protection. of public interest. "iii, When there is no justification for the criminal act perpetuated by the appellant. iv. Any previous conviction. v. Any plea of guilty. In our instant appeal, PW1 ‘has been violated not only one or twice but | many times in the supposed safe sanctuary. of her home. A single violation of anyone, much less a child is one too many. Rape i in any form.is a strong symptom of social illness and a mental one too. While outside the home, many human predators whether paedophile or not, are roaming the streets. Now, in the.supposed safety of her own home, PW1 has been violated. The Appellant is around for most times. He abused this and put the entire at risk. That in itself, is a sign that illness such as Sadomasochism is on the. rise. | take judicial notice that in Malaysia, incestuous rape is, unfortunately, quite.rampant. Before the Honourable Judicial: Commissioner AwangArmadajaya bin 61 Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 Where is a child:to seek sanctuary and protection if not within the walls of her home? If she is pushed to the streets, being a child, she is in grave danger of predators, human or animals... The. Child Act 2001 which is a reflection of the Malaysia's wishes to operationalise UN Convention: on the: Rights ‘of the ‘Child which was adopted and opened for signature, ratification and accession by General Assembly Resolution 44/25 of 20 November 1989 and the entry into force - on 2 September 1990, in accordance with Article 49 speaks of the . following: Considering that, in accordance with the principles proclaimed in the Charter of — the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of _ freedom, justice and peace in the world, _Bearing in mind that the peoples, of the United Nations, have, in the Charter, reaffirmed their faith in fundamental human rights and.in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom, , , Recognizing that the United Nations has, in the Universal Declaration of Human , Rights and in the international Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind; such as race, colour, ‘sex, language, religion, political or other opinion, national or social origin, property, birth or other status, Recalling that, in the Universal Declaration of Human Rights, the United Nations has-prociaimed that childhood is entitled to special care and assistance, Lb Convinced that the family, as the fundamental group of society and the natural environment for the growth .and well-being of all its members and particularly children, should be afforded the Before the Horiourable Judicial Commissioner AwangArmadajaya bin 62 Awang Mahmud . : : [JB-42H-18-03/2019 & JB-42H-20-05/2019] necessary protection and assistance so that it can fully assume its responsibilities within the community, ii. Recognizing that the child, for the full and harmonious development of his or her personality, should grow up.ina.family - environment, in an atmosphere of happiness, love and understanding, , ji, Considering that the child should be fully prepared to live an individual ' life in society, and. brought up in thé spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity, iv. Bearing in mind that the need to extend particular care to the child has , been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covénant‘on Economie: Social‘and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children, v. Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth " vi. Recalling the provisions of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to..Foster Placement..and Adoption Nationally ‘and Internationally; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing. Rules); and the Before the Honourable Judicial Commissioner AwangArmadajaya bin 63 Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] [eeemueaeemere Declaration on the Protection of Women and Children in Emergency and Armed Conflict, Recognizing that, in all countries in the world; there are children living in exceptionally difficult conditions, and that such children need special consideration, vil, Taking due. account of the importance of the traditions and cultural values of each people for the protection. and harmonious development... . of the child, Recognizing the importance of international co-operation for improving the living conditions of children in every country, in particular in the developing countries, fiw Mate The Preamble on UN CRC (United Nations’ Convention of the Rights of Children recognises that there is a need to protect the child and this is (among others) with the home and the family. In Malaysia this is reflected-in the Préamble of the Child Act 2001 which reads as follows: RECOGNIZING that the country's vision of a fully developed nation is one where social justice. and moral, ethical and spiritual developments are just as _ important as economic development in creating a civil Malaysian society which is united, progressive, peaceful, caring, just and humane: RECOGNIZING that a child is not only a crucial component of such a society but also the key to its survival, development and prosperity: ACKNOWLEDGING that a child, by reason of his physical, mental and emotional immaturity, is in need of. special. safeguards, care and assistance, after birth, to enable him to participate in and contribute positively towards the attainment of the ideals of a civil Malaysian society: Before the Honourable Judicial Commissioner AwangArmadajaya bin 64 Awang Mahmud ; ; [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 RECOGNIZING every child is: entitled to protection and assistance in alf circumstances without regard: fo. distinction of.aby kind, such as race, colour, sex, language, religion, social origin or physical, n mental or emotional disabilities — or any other status: : ; aan : : ACKNOWLEDGING the family as the fundamental group in society which - os provides the natural environment for the growth, support and well- -being of alf its members, particularly children, so that they may develop inan environment of peace, happiness, love and understanding in order to attain the full confidence, dignity and worth of the human person: RECOGNIZING the role and responsibility of the family in society, that they be afforded’ the necessary’ assistance’:to“enable them to fully assume: their responsibilities as. the source: of care, suppott,. rehabilitation and development of children in society. A cchild, by reason of his physical, mental and emotional immaturity, is in need of special safeguards, care and assistance, and the home and family is where the natural environment for the growth, support and well-being of all its members, particularly children, so that they may develop in an environment of peace, happiness, love and understanding in order to attain the full confidence, dignity.and worth of the human person. The dignity of the human person, more: seriously the Child, (in this case of the Prosecutrix) was trampled under his feet and stabbed in the heart by the Appellant. Instead of becoming a loving father, he uses his presence as a means to satisfy the lust and sadomasochistic desires on the poor Child. Before the Honourable Judicial Commissioner AwangArmadajaya bin 65 Awang Mahmud . . []B-42H-18-03/2019 & B-42H-20- 05/2035) ““Necember 21, 2020 He must be kept away for as long as it takes because if itis : not his step daughter, other young girls may suffer the same fate. God Forbids. ‘In PP v. TEONG LUNG CHIONG & ORS [2010] 4 CLJ1, a young girl was murdered. Hew Leh Poh (f) (deceased) was 13 years. old at the time of . the incident. She was last seen. by her. father on 14 July 1991 at about 2pm. She was walking home from the noodle stall operated by her parents. When she failed to reach home at about 6pm her family began to look for her. After searching for two days the family did not- find the deceased. Her father therefore lodged with the police a missing person report. (Exhibit. P8). For the next two months the deceased was still not found. Then on 17 September 1991 PW8, the sister of the deceased, _ received a letter (Exhibit. P11) addressed to her demanding the payment. of RM10,000 for the safe return of the deceased. It is in evidence that the deceased was killed in the presence of the respondents after she was raped by them. The reason for killing her was also given by the respondents in their respective cautioned statements, which was to avoid trouble with the police. due to the rape. The beastly acts of the respondents in that case was because of an attempt to hide the identity of the rapists from the police. Our only “consolation” in our case is that the assailant (the Appellant) did not kill the victim. If being alive, is a consolation, | fear for others. Lord Chief Justice Goddard in REX V. GRONDKOWSKI [1946] 1 AILER 560 561 offered some good advice when he said: - Before the Honourable Judicial Commissioner AwangArmadajaya bin 66 Awang Mahmud B-42H- “18- 03/2019. & JB-42H- 20- 05/2019) December 21, 2020 ’ “The: judge must consider the interests oF justice as well as the interest _ of the prisoners. It is too often nowadays thought, or seems to be thought, that the interests of justice means only the interest of prisoners.” In the written submission, the. Learned Counsel for the Appellant * | ‘submitted that the appeal was only in respect of the sentence and she: pray that the sentence be reduced because of the following grounds: i. The Appellant is remorseful. ii. He is now 37 years old. No other grounds were advanced. In the trial before the Sessions Court, the Appellant was adamant to the end, notwithstanding the overwhelming evidence against. him, trying to explain his way out of the: Charges, blaming the Prosecutrix for framing him up, and the other family members for: conspiring, with the others against him. | find no reason was advanced on why PW and the other family members would indulge in a conspiracy against the Appellant. Even his wife (PW4) gave evidence against him. With regrets | say that the Appellant is not remorseful of his acts. | found that at the adult age of 37 years and being a step father, he could not find in himself, the crimes that he has heinously committed. He destroyed the life of the Prosecutrix and took away her self esteem not to mention the sense of trust and security. From the facts | gather that the F Prosecutrix may need psychological help and / or counselling. His Lordship, Justice Eusoffe Abdoolcader in PUBLIC PROSECUTOR v. TEH AH CHENG [1976] 2 MLJ 187has this to say, Before the Honourable Judicial Commissioner AwangArmadajaya bin 67 Awang Mahmud ; . [JB-42H-18-03/2019.& JB-42H-20-05/2019] December 21, 2020 . The respondent also puts forward in his plea in mitigation the fact that he __ fs employed and supports an aged mother and step-brothers. He should “of course have thought of this before ‘committing the -6ffences and not after; he is in fact pleading hardship arising from the consequences of his own acts.and | would reiterate what I had occasion previously to observe - in another case that an offender should not expect to excite or harness any sympathy onan ipse dixit by taking the stance of the impetuous youth who. killed his parents with an axe and then pleaded in mitigation that he. was an orphan. In any event from the probation report it would appear that his family is certainly not without other means of Support. The | respondent further undertakes to turn over a riew leaf, as he puts it. That is as it should be and he should certainly do so but only after the proper and necessary correction has been administered to him in accordance with established principles of Jaw for.the offences under consideration in this matter. As Lord Justice Lawton put it in REG. V. SARGEANT [1975] 60 Cr. App. R. 74, 77, 78 (at p. 78) or, perhaps more appropriately transmuted in a local context; the creaking of the Prison ¢ doors closing shut behind him will, afford the appellant ample opportunity to. ponder on his folly in the company he keeps, and give to others of his ilk and equally gullible, cause to reflect on the desirability of the company they should or rather should not keep, for, as the ancient adage goes, he who sups with the devil must use a long spoon. (PUBLIC PROSECUTOR v. TEH AH CHENG [1976] 2 MLJ 187) . - [5] CONCLUSION Having perused over the Grounds of Judgment of the Learned Sessions — Court Judge, the Appeal Record, the Written Submissions of parties and heard the oral arguments, | found no appealable error that warrant Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang | Mahmud - [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 appellate interference. The convictions -are safe and the sentencing proper. ’ For the reasons aforesaid, | affirmed the décision of the Learned Sessions — Court Judge in both cases and uphold.all the convictions and sentences _ handed down by the Sessions Court. - : Dated at Muar in the State of Johore this 21** December 2020. tt. AWG ARMADAJAYA BIN AWG MAHMUD Judicial Commissioner High Court of Malaya Muar Johor Darul Ta’zim Curia Advisari Vult Counsels : For the Applicants: Nor Zila binti Jasmi For the Respondent : Mustaqim bin Sukarno, Deputy Public Prosecutor Solicitors : For the Appellant Yayasan Bantuan Guaman Kebangsaan Malaysia d/a Kompleks Mahkamah Muar Jalan Temenggong Ahmad 84000 Muar, Johor Before the Honourable Judicial Commissioner AwangArmadajaya bin 69 Awang Mahmud [JB-42H-18-03/2019 & JB-42H-20-05/2019] December 21, 2020 For the Respondent | Timbalan Pendakwa Raya Pejabat Timbalan Pendakwaraya. © - Mezzanine Floor _ Muar Trade Centre, Jalan Petrie 84000. Muar ‘Johor. Hearing Date : 14" October 2020 Decision Date: 21% December 2020 Before the Honourable Judicial Commissioner AwangArmadajaya bin Awang Mahmud ; .