TAY KIANG HEONG [Jabatan Peguam Negara]

TAY KIANG HEONG [Jabatan Peguam Negara]

Concurrent findings by Sessions Court and High Court that complainant and corroborating witness were credible and that prosecution proved elements of s354 were supported by evidence and not open to disturbance on appeal; absence of CCTV or incomplete CRT recording did not amount to suppression or nullity given...

Source-derived case information.

Citation
D-09(H)-504-10/2018 (Mahkamah Rayuan)
Parties
Appellant: Tay Kiang Heong; Respondent: Pendakwa Raya
Court
H
Jurisdiction
Malaysia
Judgment Date
1 March 2021
Case Number
D-09(H)-504-10/2018 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal (outraging Modesty Under Penal Code) / Court of Appeal Judgment
Outcome
Appellant's appeal against conviction dismissed; conviction affirmed; Public Prosecutor's cross-appeal against sentence allowed in part and sentence enhanced.
Legal Topics
Outraging Modesty (section 354 Penal Code), Credibility and Corroboration of Complainant, Non Production of CCTV Evidence, CRT Recording Reliability, Appellate Deference to Concurrent Findings, Sentence Enhancement
Criminal Law Evidence Sentencing Appellate Procedure Outraging Modesty (section 354 Penal Code) Credibility and Corroboration of Complainant Non Production of CCTV Evidence CRT Recording Reliability +2 more

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Parties

Tay Kiang Heong

Appellant

Pendakwa Raya

Respondent

Procedural Posture

Criminal Appeal (outraging Modesty Under Penal Code) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether prosecution proved elements of offence under Section 354 Penal Code
  2. 2 Whether complainant and witness testimony were credible and sufficiently corroborated
  3. 3 Whether adverse inference under s114(g) Evidence Act arises from absence of CCTV recording

Ratio Decidendi

Concurrent findings by Sessions Court and High Court that complainant and corroborating witness were credible and that prosecution proved elements of s354 were supported by evidence and not open to disturbance on appeal; absence of CCTV or incomplete CRT recording did not amount to suppression or nullity given explanations and long-hand notes; appellate court may increase sentence where prior sentence is manifestly low—hence conviction affirmed and sentence enhanced to one year imprisonment with a fine of RM8,000 (in default 8 months).

Court Disposition

Appellant's appeal against conviction dismissed; conviction affirmed; Public Prosecutor's cross-appeal against sentence allowed in part and sentence enhanced.

Orders

  • Conviction under Section 354 Penal Code affirmed
  • High Court sentence of 3 months imprisonment set aside