1. ) XXXX v 1. ) Siti Nur Aisyah Binti Mohamad (MC-A73-1-10/2023)

MZ ... DEFENDANTS GROUNDS OF JUDGMENT TABLE OF CONTENTS INTRODUCTION ... 3 THE FACTUAL BACKGROUND ... 4 THE ISSUES ... 6 PLAINTIFF’S SUBMISSION ... 6 DEFENDANTS’ SUBMISSION ... 7 EVALUATION AND FINDINGS BY THIS COURT ... 7 DAMAGES ... 40 CONCLUSION ... 43

This case involved a claim filed on behalf of the child (“the plaintiff”), through her father and litigation representative, in this court. The civil suit alleged trespass to person, battery, negligence, sexual harassment and abuse committed by the defendants. The plaintiff claimed that these acts resulted in physical injuries, sexual harm, nervous shock and psychiatric damage.

The plaintiff contended that the first defendant, as the plaintiff's mother, was negligent in her duty of care by failing to ensure the plaintiff's safety. The second defendant, the child's uncle and the younger brother of the first defendant, was alleged to have committed acts of sexual harassment while the child was residing with the defendants.

Given the sensitive nature of the case and the fact that the plaintiff is currently seven years old, this court has, as a matter of course, anonymized the identities of the parties to protect their privacy. Accordingly, the plaintiff is referred to as “N”, her father as “AF”, her mother as “SNA” and her uncle as “MZ” in these proceedings.

The witnesses who testified at the trial were:- Plaintiff’s case: i. The plaintiff’s father: PW1; ii. Dr. Edward, the child psychologist: PW2; Defendants’ case: iii. First defendant: DW1; and iv. Second defendant: DW2.

The plaintiff’s father (AF) and the first defendant were married on 10.07.2017 and subsequently divorced on 04.08.2020. Following the divorce, the Plaintiff resided with the parents of the Defendants, the Defendants themselves, and another younger brother of the Defendants, who is a person with disabilities.

Around 03.07.2022, the plaintiff complained to his father and stepmother that she experienced pain in her genital area while bathing. In response, the plaintiff’s father sought an explanation from the first defendant, but this was ignored by the first defendant. On the next day i.e. 04.07.2022, the plaintiff’s father lodged a police report and the plaintiff was then taken to Hospital Melaka to be examined and assessed by an emergency unit medical officer. A medical report was issued which included the diagnosis of “suspected neglect or abuse of child” and “suspected sexual abuse”.

Between 05.07.2022 and 12.07.2022, the plaintiff was also taken by the first defendant to the pediatric ward for further examination and assessment by a pediatric medical specialist at Hospital Melaka. Another medical report was issued, stating that there was an “alleged sexual abuse” committed by the second defendant. Subsequently, on

27.02.2023, the plaintiff reported to her father that the first defendant had choked her three times while administering medication.

On 28.02.2023, the plaintiff’s father lodged a police report to protect the plaintiff and an investigation was conducted by the investigating officer. On 05.03.2023, the plaintiff’s father discovered wounds and swelling on the plaintiff’s neck, along with scabies (kudis) on various parts of her body. Concerned about the plaintiff’s mental state, the plaintiff’s father took her for examination and assessment by a psychiatric specialist at the International Psychology Centre on 14.05.2023. Later on 28.05.2023, the plaintiff was also referred to the Department of Psychiatry and Mental Health at Hospital Shah Alam.

As such, the plaintiff claimed that the first defendant committed neglect and abuse against her, while the second defendant sexually harassed and assaulted her. As a result, the plaintiff suffered physical injuries, sexual injuries, as well as nervous shock, emotional and psychiatric harm. Consequently, the plaintiff’s welfare and safety have been severely compromised and endangered.

In brief, the defendants argued that PW1 as the plaintiff’s father, shares responsibility with the first defendant as the plaintiff’s mother, in ensuring the plaintiff’s safety and well-being at the material time. Additionally, the plaintiff’s action in filing this claim before this court is more akin to a criminal claim, whereas, to date, no criminal prosecution has been filed or initiated against the defendants. The defendants have never been charged of any offence following the multiple police reports lodged by PW1.

The issues raised by the plaintiff’s counsel to be addressed by this court were as follows: i. First Issue: Whether the first defendant and the second defendant, either jointly or separately, committed the tort of trespass to person against the plaintiff; ii. Second Issue: Whether the first defendant and the second defendant, either jointly or separately, committed battery against the plaintiff, resulting in physical and emotional harm; iii. Third Issue: Whether the second defendant engaged in harassment and/or sexual assault against the plaintiff; iv. Fourth Issue: Whether the first defendant failed, refused, and/or neglected to ensure the safety, interests and well-being of the plaintiff; v. Fifth Issue: Whether the plaintiff suffered physical, sexual, emotional and psychiatric injuries as a result of the actions of the first defendant and the second defendant.

In essence, the plaintiff’s counsel submits that the first defendant and the second defendant committed the tort of trespass to person by carrying out battery against the plaintiff as follows: i. The first defendant intentionally choked the plaintiff with the intent to cause harm to the plaintiff; and ii. The second defendant touched the Plaintiff with the intent to cause harm and/or to commit sexual abuse/assault against the plaintiff.

However, the defendants’ counsel submits that the allegations made by the plaintiff, through her litigation representative, her father, are not based on a genuine civil claim but rather lean towards criminal allegations. To date, no criminal charge has been initiated by the relevant authorities, particularly the Royal Malaysia Police and the Department of Social Welfare, against both defendants, after conducting investigation.

To this court, even though the issues are intertwined, these questions must nonetheless be addressed, namely: trespass to person, battery, negligence, harassment, sexual assault and abuse. While these causes of action have been pleaded, they can be examined collectively for each defendant to determine whether they owed a duty of care and whether they intentionally caused harm to the plaintiff.

Before proceeding with this evaluation, it is first and foremost essential for this court to address the evidence presented, as presented by both counsels, as follows: i. The plaintiff was not called as a witness; ii. The content of the video recordings focuses on the plaintiff, where the statements contradict each other; iii. Expert evidence from PW2, a child psychologist, regarding the assessment of the plaintiff; and iv. The welfare report as attached in the defence filed and the relevant medical reports.

All of these evidences are analysed and the findings made by this court while simultaneously addressing the two main issues in the current case, which are: a) The plaintiff’s pleaded causes of action against the first defendant, including trespass to person, battery and breach of duty of care; and b) The plaintiff’s pleaded causes of action against the second defendant, including trespass to person, battery, harassment and/or sexual assault/abuse. A) The Principle: Tort Claim based on Trespass to Person, Battery, Negligence, Harassment and Sexual Assault / Abuse

This Court views the plaintiff’s filing of a tort claim in the current case as a positive development in the country’s legal landscape. The claim encompasses allegations of trespass to the person, battery, negligence, harassment and sexual assault / abuse against the two defendants collectively. It is a well-established principle that tort claims can be brought against perpetrators regardless of the outcome of any related criminal proceedings, whether successful, unsuccessful, or absent entirely (see Ellen Bublick with contributions from Jessica Mindlin, “Civil Tort Actions filed by Victims of Sexual Assault: Promise and Perils” [2009] Applied Research, National Online Resource Center on Violence Against Women, 1-9).

In the current case, counsel for the defendants examined the testimony of DW1 (the first defendant, the mother) and DW2 (the second defendant, the uncle). It was confirmed during the examination that neither defendant faced criminal prosecution for the alleged acts namely, the abuse of the plaintiff by DW1 and the sexual harassment by DW2. However, under the law of tort, a remedy may still be afforded if the facts demonstrate sufficient gravity. Be that as it may, it is important to note that in civil cases, the standard of proof on the balance of probabilities requires the party bearing the burden of proof to demonstrate that their case is more probable than not, essentially tipping the scales to just over 50%, or at 51% (YAY v WHO & Anor [2023] 9 MLJ 169, HC).

The core issues as above-mentioned in this case revolves around the connection between the alleged abuse and the relationship between the defendants and the plaintiff. Applying the close connection test, what is significant is the authority conferred upon the defendants as the plaintiff’s elders, coupled with their physical proximity to the plaintiff as her biological mother and uncle, residing in the same household. This aligns with the principles outlined in BXB v Watch Tower Bible and Tract Society of Pennsylvania and another [2021] 4 All ER 518. The test to be applied here examines the connection between the relationship of the parties and the act or omission of the alleged tortfeasor. Simply put, the plaintiff’s tort claim seeks financial compensation for injuries suffered due to the defendants’ failure to exercise reasonable care for her safety resulting her to suffer nervous shock and psychiatric damage. B) The Plaintiff was not called as a witness

After PW1 (the plaintiff's father) given his testimony, the plaintiff’s counsel applied to call the plaintiff as a witness to give evidence in chambers, with only the counsels present, to prevent any interference from the father and first defendant as the plaintiff’s mother. This court refer to the documents filed by the plaintiff’s counsel, where the plaintiff’s solicitors initially filed the Lists of plaintiff’s Witnesses on 25.9.2024 (Encl. 20). Subsequently, they filed an Amended List of Plaintiff’s Witnesses on 29.11.2024 (Encl. 33), in which they removed Dr. Nurul Syuhaida Binti Abdul Razak and, at the last minute, included an expert witness, Dr. Edward, to support their and claims in court.

At the trial, after the completion of one plaintiff’s witness, the plaintiff’s counsel once again took the defendants by surprise by making another request to call the plaintiff as an additional witness. The plaintiff’s counsels contended that there was a delay in calling the plaintiff as a witness because they had to consider the plaintiff’s current mental condition, which is unstable. The plaintiff’s counsel also stated that this would not prejudice either the first defendant or the second defendant, since the protocol of examining the plaintiff as child witness in the chamber does not favour any party, and the plaintiff is the named party in the current case where it is appropriate for the plaintiff to be included as a witness, especially given the plaintiff’s own willingness to testify.

Additionally, the defendants’ counsel argued that the plaintiff in this case is an illegitimate child and/or a child born out of wedlock between AF and the first defendant. As a result, based on that fact, AF is not permitted under the law to bring this claim on behalf of the plaintiff, particularly in the civil court. This, in turn, demonstrates to this court that the proceeding filed by the plaintiff’s father herein is fundamentally flawed ab initio. Applying this argument, the defendants’ counsel contended that it is a well-established legal principle that the plaintiff herself, a minor who is currently seven years old, as the named litigant, must personally appear before this court to defend her case. However, according to the defendants’ counsel, this material requirement was not fulfilled and the plaintiff’s counsel had deliberately failed or neglected to properly prepare for this aspect of the case.

The Convention on the Rights of the Child (CRC) was ratified by Malaysia in 1995, demonstrating its commitment to protecting and promoting the welfare of children. For instance, a key provision of the CRC concerning the upbringing of children is Article 18, which explicitly states that “both parents” have the primary duty to maintain and care for their child. This provision underscores the shared parental responsibility, reinforcing the notion that the duty of care should not be borne solely by one parent. Furthermore, the definition of a “child of marriage” under section 2 of the Law Reform (Marriage and Divorce) Act 1976 (LRA) allows for a broader interpretation, ensuring that “illegitimate children who are not adopted” can still apply for maintenance under the LRA. In the considered view of this court, the law should not discriminate against illegitimate children, as its purpose is to safeguard the welfare of innocent children (See Sridevi Thambapillay & Jal Zabdi Mohod Yusoff, “Maintenance Laws and Illegitimate Children in Malaysi” [2012] Proceedings of International Conference on Public Policy and Social Science, UITM Melaka Malaysia). In the current case, since the father willingly to care for the plaintiff, a minor under sixteen years of age and as this court acknowledges the father’s efforts, the Court finds no issue with the father acting as the plaintiff’s litigation representative in initiating this suit in line with O76 r1 of Rules of Court 2012.

However, regarding the plaintiff’s counsel’s application to call the plaintiff as a witness at a last minute, despite two prior lists of witness filed before trial that did not include the plaintiff's name, the defendants’ counsel argued that they were taken by surprise. The key issue, however, is whether such a move truly constitutes a surprise, given that the plaintiff has been named as a party in this suit from the outset. Nevertheless, this court’s decision to dismiss the plaintiff counsel’s application was rather on procedural grounds, as explained openly in court to both parties. This Court found no justifiable reason for the plaintiff’s counsel’s failure to include the plaintiff in the list of witness earlier. Procedural integrity must be upheld, ensuring fairness for both the plaintiff and the defendants. Under Pre-Trial Case Management (PTCM), cause papers, rules of evidence, and the principle of a fair trial must all be respected. Given that case management had been ongoing for over a year before the trial commenced, the defendants' objection was allowed, preventing the plaintiff from being called as a witness at that stage after the first plaintiff witness (PW1) had been testified.

This Court, as the guardian of procedural rules, must maintain the integrity of court procedures. The entire purpose of PTCM is undermined when such application without merit is entertained. The plaintiff’s counsel failed to provide a justifiable reason for failing to comply with PTCM directions by omitting the plaintiff’s name from the list of witness. These directions were issued under Order 34 Rule 2 of the Rules of Court 2012, which aims to reduce costs and delays by streamlining the trial process and minimizing excessive testimony. To this court, the agreed cause papers filed which were settled between the parties before trial had the function similarly to pleadings and, if not an integral part, are at the very least analogous. Given that these matters were agreed upon and complied with the PTCM’s direction, it would violate fundamental principles of fairness to allow any party to deviate from what was already settled. Thus, this court should not depart from strict procedural rules. Repeated non-compliance with Order 34 of the Rules of Court 2012 further justifies this Court’s decision to uphold its earlier PTCM directions (Fatimah bt Ahmad v Zabaidah bt Md Haneef & Ors [2024] MLJU 2039, HC).

However, this court considers the plaintiff’s recorded statements submitted as evidence in the video recordings presented before the court. There is ongoing concern regarding the removal of the requirement for corroboration of child witness testimony, as giving evidence in court is already an intimidating experience for adults, let alone for children. By allowing video-recorded testimony, child witnesses can provide evidence effectively while being protected from additional trauma, if any. Under section 6 of the Evidence of Child Witness Act 2007, all child witnesses are presumed competent to give evidence in any proceedings and video-recorded testimony is admissible as evidence, carrying the same weight as in-person testimony. Although recent amendments to this Act regarding the competency of child witness are yet to be enforced, the use of video recordings for examination-in-chief remains a legally accepted method of presenting a child witness’s testimony. This approach ensures justice for children, allowing them to testify effectively without undue distress and leads to fairer trial, as children’s testimony is treated on equal footing with that of other witnesses. C) The content of the video recordings focuses on the plaintiff, where the statements contradict each other;

There are a total of six video recordings presented by the plaintiff’s case, and their contents are as follows: a) Item 4, Bundle D: On 27.02.2023, PW1 (the father) stated that, as usual, he made a video call to the plaintiff. According to PW1, the plaintiff complained that the first defendant (mother) had acted by choking her neck. However, after reviewing the video, this court found that the content shows the plaintiff using the word "choking" in the context of feeding her medicine as she was unwell; b) Item 5, Bundle D: The video recordings depict the plaintiff’s reaction when she was about to be returned to the first defendant after a visitation day with her biological father, PW1. PW1 recorded these videos on 16.04.2023. There are seven short video clips recorded by PW1 on the same date. This court agreed with PW1 to the extent that the plaintiff had no difficulty communicating with PW1 and even appeared cheerful when she was with PW1 and his family. The plaintiff did not want to return to the first defendant when the visitation time ended. PW1 attempted to persuade the plaintiff in a calm manner to follow the first defendant. According to the PW1, in the video, the first defendant was seen acting aggressively towards him, verbally abusing him and accusing him of refusing to return the plaintiff. PW1 was then forced to go to the nearest police station to resolve the issue and to further persuade the plaintiff. Ultimately, the first defendant forcibly took the plaintiff home. During his testimony, PW1 stated that he felt deeply saddened upon witnessing the plaintiff’s condition. He also claimed that this was the plaintiff’s reaction and behavior every time she was with PW1 and had to be returned to the first defendant. However, after reviewing these five video recordings in Item 5, this court found that they primarily depict the plaintiff’s preference and attachment to PW1 over the first defendant. However, they do not constitute cogent evidence of any abuse by the first defendant in raising the Plaintiff; c) Item 9, Bundle D: This is about the video of the child assessment session with Dr. Edward, PW2. This video, which has a duration of 5 minutes and 30 seconds, was verified by PW2 during the examination-in-chief. PW2 provided testimony via Zoom, and a neutral supervising solicitor, Pn. Fatin Farzana, was present alongside PW2 to assist the court. She ensured that a desk scan was conducted and that all parties had a 360° view of the room, confirming that the witness's position and surroundings were free from any prohibited documents or materials. During the trial, PW2 consistently kept his camera and microphone on. With the supervising solicitor present, it was confirmed that PW2 was unable to communicate with any other individuals during the proceeding. Additionally, throughout the examination-in-chief, cross-examination and re-examination, PW2 was required to maintain eye contact with the counsel conducting the questioning. This process was carried out in a fair and proper manner before this court. Upon reviewing the video, this court noted that the plaintiff stated "Pok Itam" (which is how the plaintiff referred to her uncle, the second defendant in the current case) had touched her private parts. At that time, according to the plaintiff, the plaintiff's mother was not at home because she was at work, and the incident allegedly occurred during the daytime. At around 01:45 of the recording, the plaintiff stated that the second defendant entered the room while her mother was not at home. However, at around 03:13 of the recording, the plaintiff mentioned that the incident happened outside the room at her grandmother’s house during daytime (at around 01:45 of the recording). Meanwhile, at around 01:04 of the recording, the plaintiff stated that her mother “only choked” her, using the word literally in that manner without further elaboration; d) Item 10, Bundle D: this is about the video of the plaintiff being forced to follow the first defendant after being discharged from the Hospital Shah Alam. After reviewing the video, this court found that it clearly conveys the message that the plaintiff is more attached to her father (PW1) and was crying when taken by her mother (the first defendant). However, to this court, the video only demonstrates that the plaintiff prefers to stay with her father rather than her mother and does not provide any evidence of abusive treatment by the mother; e) Item 21, Bundle B: This is about video of the plaintiff’s allegation of being sexually harrassed or molested by the second defendant. Under Item 21, two videos were presented before this court. The first video, recorded by PW1 on 03.07.2023, has a duration of 1 minute and 34 seconds. This recording was taken during PW1’s visitation rights as the biological father, shortly after the plaintiff complained of pain in her private part. In this video, it is clearly seen that the plaintiff reenacted the alleged molestation act committed by the second defendant, specifically touching the middle of her private part. At around 00:27 of the recording, the plaintiff stated that Pok Hitam touched her private part once while she was sleeping. At around 00:35 of the recording, the plaintiff said that her mother was present at that time and responded by saying “Jangan la usik”, but did nothing further. At around 01:21 of the recording, the plaintiff stated that the incident took place inside the room at her grandmother's house. This highlights the material contradictions and discrepancies in the plaintiff’s own statements in this video Item 21, especially when compared to the video recording assessed by Dr. Edward in Item 9, Bundle D. The discrepancies are particularly notable regarding whether the incident occurred inside or outside the room, and whether the plaintiff’s mother was present at the time or absent due to work when the plaintiff alleged that the second defendant had touched her private part. Whilst, the second video under Item 21 contains a similar allegation made by the plaintiff while she was admitted to Hospital Shah Alam from 28.05.2023 onward. This video was recorded by PW1 on 03.06.2023 during a further examination conducted by a psychiatric medical specialist, Dr. Nurul Syuhaida binti Abdul Razak. This 57-second video captures the plaintiff explaining the incident while drawing a figure she referred to as “Pak Hitam” (Pok Itam), indicating that the second defendant in this case had touched her private part. However, at around 00:09 of the recording, the plaintiff aware that her father was recording the video and asked him that who is he sending this video to. Further, at around 00:47 of the recording, the video shows the father was pushing the plaintiff to quickly talk about what she was supposed to say based on the drawing. In response, the plaintiff appeared reluctant to comply and instead directed her gaze toward the camera, seemingly signaling for the video recording to stop. This court takes into account the plaintiff’s conduct and credibility in assessing the evidentiary value of these recordings; and f) Item 22, Bundle B: The last video in the list and this is about the video of the plaintiff refusing to communicate with the first defendant while hospitalized. Item 22 refers to four video recordings. PW1 stated that he recorded these videos on 31.05.2023 and 01.06.2023 while the plaintiff was admitted to Hospital Shah Alam. The most recent video was recorded on 21.02.2024 and has a duration of 53 seconds. In all these videos, it is evident that the Plaintiff initially refused to communicate with her mother, the first defendant. In one of the recordings, the Plaintiff was seen watching the ongoing camera and stating that she did not want to answer her mother's phone call. However, in another video (VID20230601200543.mp4), the plaintiff and her mother were seen conversing. At around 03:25 of the recording (VID20230601200543.mp4), the plaintiff was visibly looking at the camera, smiling and then stating that she did not want to speak to her mother. However, throughout the conversation, she occasionally engaged with her mother, asking about Akib and Nenek. This behavior appears somewhat inconsistent, as she initially refused to speak to her mother while being recorded, yet later initiated topics of conversation with her. Ultimately, this court found that these videos merely illustrate the nature of the relationship between the plaintiff and her mother. However, they do not serve as evidence of any abusive treatment by the mother. Notably, in one instance (VID20230601200543.mp4), the plaintiff directly and assertively told her mother that she wanted to see Nenek, demonstrating that she could express her desires to her mother without fear.

The general principle is that discrepancies in a witness’ testimony do not automatically render the witness an unreliable witness or make his entire evidence inadmissible. However, in evaluating the video recordings presented, it is clear that the plaintiff’s statement is riddled with contradictions and material discrepancies. Notably, the plaintiff failed to provide a consistent account of the sexual assault incident involving the second defendant, particularly regarding the venue and the crucial issue of whether her mother was present at the time of the incident. The plaintiff initially told PW2 that her mother was at work, but later informed her father (PW1) and his wife that her mother (the first defendant) was not at work and had told the second defendant not to touch the plaintiff. These conflicting statements undermine the consistency of the plaintiff’s testimony. The contradictions and discrepancies in her account are significant enough to discredit her credibility, especially as the plaintiff, under no duress, has provided inconsistent descriptions of the same event.

When considering discrepancies and contradictions in such a case, this court must determine whether these inconsistencies are so substantial that they entirely discredit the witness and render their entire testimony unreliable. In the current case, this court scrutinized the video recordings, including the evidences provided by PW1, who initiated the suit based on complaints made by the plaintiff and supported by the video recordings evidences. This court approached this evaluation with heightened caution, given the material discrepancies in the plaintiff's statements. The inconsistencies in the plaintiff's testimony, especially regarding simple and straightforward details such as whether her mother was present during the incident, raise doubts about her reliability. Such details should be clear and consistent, yet they remain inconsistent version to the PW1 and PW2. This court, therefore, treated the plaintiff's statements in the video recordings with caution, finding significant material contradictions that weakened her credibility (Westford Limited v Archipelago Insurance Limited [2023] MLJU

Similarly, the plaintiff’s claims against her mother (the first defendant) for allegedly choking her to force her to take medicine lack supporting evidence of abusive intent. The recordings show no indication of harm, and instead, it suggests that the mother acted in the plaintiff’s best interest to ensure she took her medication when sick. While the plaintiff may have expressed a preference for her father over her mother, the video shows that she was able to engage with her mother and directed her mother to show her where is her Nenek without fear. Undoubtedly, the video recordings indicate her level of attachment to the father, but not necessarily represent there is any form of mistreatment by the mother. Furthermore, the plaintiff’s refusal to answer the first defendant’s phone call does not provide sufficient evidence of negligence or tortious conduct on the mother’s part. It merely shows that the plaintiff chose not to communicate with her mother.

(D) Expert evidence from PW2, a child psychologist, regarding the assessment of the plaintiff

According to the witness statement of PW2, which was tendered as WS(SP2), PW2 stated that he was appointed by PW1 to provide assessment for the trauma suffered by the plaintiff due to incidents of abuse and sexual assault while under the care and custody of the defendants. The plaintiff’s counsel further argued that the expert report prepared by Dr. Edward, found on pages 16-22 of Bundle B, supports the assessment. PW2, a child psychologist, conducted a full evaluation of the plaintiff on 14.05.2023. The assessment lasted two (2) hours in a single session, during which PW2 used anatomical dolls without the involvement of either the plaintiff’s father (PW1) or mother (the first defendant). The findings from this assessment were documented in the said Integrative Clinical Report dated 14.05.2023.

During the trial, PW2 explained that this internationally accepted and accredited child psychological assessment process utilized an indirect method namely, anatomical dolls. These dolls are designed with genitalia and other body parts and are used as a standardized approach to assess evidence of abuse, whether physical or sexual. PW2 emphasized that this method is not shared with parents to prevent parental coaching or malingering.

During cross-examination, the defendants' counsel suggested that a thorough assessment should take more than one day to reach a conclusive opinion. However, PW2 disagreed, explaining that the psychological process used specifically the anatomical doll method allows for conclusive results within a two-hour session without parental interference. PW2 further clarified that the assessment was not intended to resolve or heal the child but merely to assess or evaluate the plaintiff’s condition.

A key issue arose when the defendants' counsel challenged the thoroughness of PW2’s assessment. PW2 admitted that he and another supervised psychologist, Dr. Phang, had recommended therapy in their report and suggested that the plaintiff be placed under her father’s custody for optimal mental health development. The defendants’ counsel also argued that assessment and therapy should go hand in hand. PW2 responded that therapy was not conducted because PW1, “as his client”, did not request it. Crucially, PW2 conceded that he only collected the developmental history of the plaintiff from the father (his client), without involving the plaintiff’s mother. This court carefully evaluated this aspect, emphasizing that while expert evidence assists the court, it is ultimately the court’s role to decide, not the expert’s. Expert evidence is merely opinion evidence and should not dictate this court’s judgment (Jasmair Singh a/l Pajan Singh v Bir Singh a/l Teja Singh & Ors [2021] 7 MLJ 328, HC).

In assessing the credibility of expert evidence, this court found that PW2’s report had limited evidential value, particularly due to its reliance on the anatomical doll method. According to professional literature, including Boat and Everson (1986), Anatomically Detailed (AD) dolls are used as a communication aid in child sexual abuse interviews, but they are not a definitive diagnostic tool for determining sexual abuse. The American Psychological Association (See Koocher, G., Goodman, G., White, S., Friedrich, W., Sivan, A., & Reynolds, C. (1994) Report of the Anatomical Doll Task Force to the American Psychological Association Council of Representatives: Psychological science and the use of anatomically detailed dolls in child sexual abuse assessments. Washington, DC: American Psychological Association) has endorsed AD dolls as memory aids but does not recognize them as conclusive evidence of abuse. This is exactly the anatomical dolls method used by the PW2 when assessing the plaintiff’s condition here. Additionally, researchers of the same field emphasizes that child abuse investigations should be conducted by trained forensic interviewers rather than the child’s therapist. A well-trained interviewer is crucial, as children are probably prone to suggestibility and difficulty distinguishing between fantasy and reality. This developmental perspective must be considered to avoid misleading assessments (See Prof., Savita Malhotra ((M.D.; Ph.D; F.A.M.S) & Dr. Parthasarathy Biswas (M.D.), Behavioral and Psychological Assessment of Child Sexual Abuse in Clinical Practice, [2006] 2(1) International Journal of Behavioral Consultation and Therapy 17).

This court also noted PW2’s failure to take a comprehensive developmental history from the perspective of each parent. The collection of background information from perspective of each parent is essential in child abuse and/or sexual assault cases, as it provides insight into the child’s medical history, symptoms and well-being. Ideally, such history should be obtained from multiple caregivers and both parents, rather than solely from one parent as what transpired in the current case. The World Health Organization’s Guidelines for Medico-Legal Care for Victims of Sexual Violence emphasize that developmental history should include input from caregivers, including other family members involved in the child’s daily life (See the link of Guidelines, World Health Organization Geneva1). In the current case, the plaintiff’s mother and grandmother (Nenek) should have been interviewed to provide a more balanced perspective.

Further, the Guidelines for the Clinical Evaluation for Child and Adolescent Sexual Abuse by the American Academy of Child & Adolescent Psychiatry stress that obtaining history from both parents is essential (See the link of American Academy of Child & Adolescent Psychiatry2). This ensures all possible explanations for the child’s symptoms are considered. The guidelines also emphasize that when allegations arise in custody disputes, the possibility of false allegations must be examined and each parent must be interviewed separately to assess their credibility. The clinician psychiatrists should base their conclusions on multiple data sources, including medical reports, school records and observations of parent-child interactions.

In the current case, PW2’s failure to interview the mother (first defendant) and the grandmother (Nenek) as caregivers could raise concerns about bias. Professional guidelines as above-mentioned indicate that child psychologists should base their evaluations on 1 World Health Organization Geneva, Guidelines for Medico-Legal Care for Victims of Sexual Violence, accessed at https://iris.who.int/bitstream/handle/10665/42788/924154628X.pdf;jsessionid=34B1 C310E63302285D0850E501EFC654?sequence=1 2 American Academy of Child & Adolescent Psychiatry, Guidelines for the Clinical Evaluation for Child and Adolescent Sexual Abuse, accessed at https://www.aacap.org/aacap/Policy_Statements/1990/Guidelines_for_the_Clinical_ Evaluation_for_Child_and_Adolescent_Sexual_Abuse.aspx comprehensive assessments, including interviews with all relevant caregivers. PW2, as a neutral expert, should have gathered a full history from both parents and considered corroborating evidence before reaching a conclusion. However, PW2’s reliance solely on the father’s account undermines the neutrality and thoroughness of the assessment. Given these deficiencies, this court found that the expert report lacks sufficient evidential weight. While expert opinions serve as guidance, this court must ultimately form its own judgment based on a holistic evaluation of all evidences. In this instance, the limited scope of PW2’s assessment, particularly the failure to interview the plaintiff’s mother and grandmother, diminishes its reliability in determining the truth of the allegations.

(E) The welfare report as attached in the defence filed and the relevant medical reports

According to the plaintiff’s counsel, the first and second defendants (DW1 and DW2) stated in their witness statements that there were reports supporting their defence, specifically that no abuse or neglect had occurred. They referred to a report from the Alor Gajah District Social Welfare Office, which had also reviewed a psychiatric report from Shah Alam Hospital, concluding that while the plaintiff was under their care and supervision, there was no evidence of neglect, abuse and/or sexual assault on the parts of the defendants. However, the plaintiff’s counsel argued that the first and second defendants failed to refer to any document bundle containing the welfare report mentioned in their witness statements. This raised doubts and confusion as to whether such documents truly existed. Furthermore, even if a Social Welfare Department (JKM) report did exist as claimed in the defendants' defence, the defendants failed to present and verify it during their examination at trial.

This court took note that, during their testimony, both defendants were unable to produce the alleged JKM welfare report. However, the court took judicial notice of the existence of the welfare report attached to the defence filed at Enclosure 12, specifically on page

This welfare report, prepared by the Kuala Selangor Social Welfare Department, stated that in the molestation case of the plaintiff, the perpetrator no longer resided with the plaintiff, and the plaintiff’s biological mother had been informed that the perpetrator was prohibited from being around the plaintiff while police investigations were ongoing. The welfare report further indicated that no elements of abuse or neglect were found on the part of the first defendant, based on the Shah Alam Hospital report and the protective officer's report from the Alor Gajah Social Welfare Department.

Nonetheless, this court exercises caution in considering the welfare report, as it was not properly tendered by the welfare officer in open court. However, its existence could not be ignored, as it was attached to the defendants' pleadings. Given that this document formed part of the defence pleading, this court acknowledged its existence as a matter of general and common knowledge. This court, however, remained mindful that the welfare report had not been formally admitted into evidence through its maker (the welfare officer) in open court, and thus, judicial notice was taken only to the extent of recognizing its existence.

The medical reports presented by the plaintiff’s case, amongst others, were evaluated as follows: a. Plaintiff’s medical report from the Paediatric Department, Hospital Melaka, dated 21.12.2022 (pages 2-4, Bundle B): This report stated that there was an alleged sexual abuse incident involving the plaintiff by second defendant. According to the history, the plaintiff was brought to the Emergency Department at Hospital Melaka on 04.07.2022 by her father (PW1) after she complained of pain in her genital area following a bath. Upon further questioning by the father, the plaintiff claimed that the pain was due to being touched by her maternal uncle (the second defendant) in her genital area. The diagnosis was recorded as “alleged sexual assault by uncle”, with a referral made to the Social Welfare Department (JKM) and a follow-up appointment scheduled in two months at the Suspected Child Abuse and Neglect (SCAN) Clinic; b. Plaintiff’s medical report from Hospital Melaka, dated 14.03.2023 (pages 12-15, Bundle B): This report, prepared by Dr. Noor Atieqah Atan, an Emergency Medicine Specialist. The physical examination conducted by the Emergency Department at Hospital Melaka raised suspicions that the plaintiff had been neglected and abused (diagnosis: (1) “suspected neglect of abuse”) as well as sexually abused (diagnosis: (2) “suspected sexual abuse”) while under the care of her mother, the first defendant. The plaintiff was subsequently referred to the Obstetrics & Gynaecology team and the SCAN (Paediatric) team and was later admitted for further evaluation; and c. Plaintiff’s medical report from Hospital Shah Alam, dated 15.6.2023 (pages 24-29, Bundle B): This report, prepared by Dr. Nurul Syuhaida, can be found under Item No. 10 in Bundle B, pages 25-29. It was issued after the Plaintiff underwent a 23-day hospital stay at Hospital Shah Alam from 28.05.2023 onwards. The report detailed an interview conducted with the mother (the first defendant) on 31.05.2023. During the interview, the mother (the first defendant) stated that the plaintiff was fine in her care, attended school and had no complaints from teachers. The first defendant also mentioned that the Plaintiff had sensitive skin and often went to the garden behind their house, where she was bitten by insects. The first defendant further explained that the plaintiff had complained of lower abdominal pain, so she took her to a clinic for treatment, where it was diagnosed as a urinary bladder infection, which had improved after treatment. Besides, the first defendant claimed that her husband (PW1) was neglectful and unfair, which led her to move back to her family home in Malacca between the years of 2018 and 2019. This, in turn, resulted in the husband filing a case against her for nusyuz. The report also noted that the first defendant only registered her pregnancy after being six months pregnant, which led to the plaintiff’s status being recorded as “not delivered inside marriage”. Notably, in the same report, Dr. Nurul Syuhaida raised suspicions that the first defendant might have a mild intellectual disability, which could have affected her judgment in caring for the plaintiff. The described behaviours were noted as commonly observed in individuals with intellectual disabilities. The diagnosis stated, “no evidence to suggest psychiatric illness in child for the time being. However, the child showed significant distress with the presence of mother”, The report suggested that, for the benefit of the doubt, the plaintiff should be assessed by a social welfare (JKM) protector on a scheduled basis following custody. This court was in agreement with the findings of this medical report prepared by Dr. Nurul Syuhaida. The Plaintiff’s scabies (skin condition) was clearly a dermatological issue that could be treated with creams. It was not a condition caused by physical abuse, as alleged. This court respectfully found that this was not an act of abuse or neglect but rather a skin condition with medical treatment options. Therefore, this court rejected the plaintiff’s argument regarding photographs depicting the plaintiff’s condition in 2019-2020. The photograph on page 41 of Bundle B was taken by PW1 on 25.02.2019. At that time, PW1 had to shave the plaintiff’s hair due to severe itching and pain on her scalp. After shaving, PW1 discovered multiple scabs on her scalp. However, this condition did not fall under the category of abuse as alleged.

(F) OTHER ISSUES: i. The testimony of the first defendant (DW1) in her witness statement [marked as WS (SD1)] and the testimony of the second defendant (DW2) in his witness statement [marked as WS (SD2)]

The plaintiff's counsel argued that several leading questions were included in the DW1 and DW2’s witness statements. Additionally, some supplementary questions during the examination-in-chief of the first defendant (DW1) and the second defendant (DW2) were also leading in nature. For instance, the question posed was, while the child was living with the plaintiff (her father, PW1), could she have been influenced by the father, to which DW1 answered that the plaintiff would be influenced by her father. The plaintiff's counsel further submitted objections to certain questions in the first defendant’s witness statement [WS (SD1)], specifically question 30 on page 8 and questions 37, 38, and 40 on page 10. Additionally, objections were raised regarding amendments made by the counsel for the first and second defendants concerning the second defendant’s witness statement [WS (SD2)].

This court allowed the objection to questions 30 and 40 in WS(SD2), particularly where they suggested that the Plaintiff’s suit against both Defendants was filed in mala fide and with ulterior motives. With regard to the leading question, this court emphasizes that it is not a mechanical robot incapable of independent reasoning. This Court has duly recorded these objections and issued the necessary orders, reminding the defendants’ counsel to be cautious when framing questions that put words into the witness’s mouth.

This court agrees with the plaintiff's counsel to the extent that counsels must take care not to provide answers in a witness statement, as this could amount to coaching a witness (JMC Ventures Sdn Bhd v Ng Kee Wei & Ors And Another Case [2022] MLRHU 336; [2022] MLJU 401, HC). ii. Prison card of the second defendant 46. In the trial, the defendants’ counsel objected to the exhibit of prison card of the second defendant attached on page 39 of Bundle B, submitting that such exhibit has no relevance to the current case and hence there is no reason for it to be presented, as it pertains to past records that are unrelated to the alleged offence in the present suit. The plaintiff’s counsel argued that the second defendant is a drug addict and sought to establish this fact. Nevertheless, during the examination, the second defendant (DW2) had admitted that he was imprisoned for a drug-related offence in 2017 for the first time.

However, this court, guided by the case of Datuk S Nallakaruppan & Ors v Datuk Seri Anwar bin Ibrahim and other appeals [2015] 4 MLJ 34 (Court of Appeal), held that under sections 52 and 55 of the Evidence Act 1950, a prior criminal conviction is not relevant as evidence of bad character. The explanation to section 55 makes it clear that only evidence of general reputation and general disposition is admissible to prove bad or good character where it cannot be established through a specific past act. Therefore, the prison card exhibit becomes irrelevant and it is not considered by this court.

(G) CAUSE OF ACTION AGAINST FIRST AND SECOND DEFENDANTS

At this point, based on the evaluation and findings of the evidence as discussed above, this court found that the first and second defendants have not in breach of that duty of care as answered in the following for the reasons as summarized: a) The plaintiff’s pleaded causes of action against the first defendant, including trespass to person, battery and breach of duty of care, has failed; and b) The plaintiff’s pleaded causes of action against the second defendant, including trespass to person, battery, harassment and/or sexual assault/abuse, has also failed.

As for the allegations of abuse and sexual assault, the occurrence of such incidents remains inconclusive after considering the material discrepancies in the significant details provided by the plaintiff in the video recordings. Additionally, the plaintiff herself stated that the alleged act of choking her neck by the mother to force her to take medicine was merely her own interpretation of the situation. Meanwhile, the scabies (kudis) on the plaintiff’s body is a medical skin condition and not the result of any physical assault. The first defendant (the mother) testified that she had purchased medication for sensitive skin and mosquito repellent for the plaintiff, as recorded on page 82 of Bundle B. In the considered view of this court, scabies, scars and abrasions are distinct in their nature, causes and effects on the body. Scabies (kudis) is a contagious skin condition where the scarring in such cases results from the body’s healing process after prolonged irritation; on the other hand, scars and abrasions caused by physical abuse shall be resulted from direct trauma, such as hitting, punching or striking a person. Unlike scabies-related scars, these injuries typically appear in patterns that suggest external force or repetitive trauma rather than self-inflicted scratching, based on common sense. A medical report is therefore necessary to clearly specify the condition of the body and to distinguish whether the scars resulted from itching (scabies) or from physical force (abuse). However, in this case, there is no conclusive medical report that provides a definitive finding on whether the scars were caused by persistent scratching due to scabies or by external physical trauma. Without such a medical evaluation, any assertion regarding the origin of the scars remains speculative and lacks of authoritative medical support.

Notably, there was also evident bias in the expert report prepared by PW2, where the medical reports concluded allegations of sexual abuse based solely on the history provided by PW1 (the father). Meanwhile, the medical report from Hospital Shah Alam, after the plaintiff’s admission and observation, stated that there was no evidence to suggest any psychiatric illness in the child at that time. Obviously, hese recordings and findings only indicate that the plaintiff appeared to be more attached to her father than to her mother, nothing more related to the basis of allegations against the defendants. The established rule is that whoever makes a claim must provide proof to support it. The burden of proof shall rest on the plaintiff, who must establish the facts on which the claim is based, as stated in section 101 of the Evidence Act 1950. However, based on the evaluation above, this court found that the plaintiff has failed to prove, on a balance of probabilities, that the defendants committed trespass to person, battery, negligence, sexual harassment / assault or abuse. The Plaintiff has also failed to demonstrate that she suffered physical injuries, sexual harm, nervous shock or psychiatric damage as a result of the alleged acts (breach of duty) since the defendants were found not in breach of that duty of care.

As such, the plaintiff’s claim does not meet the required threshold of proving that the allegations are more likely to be true than not namely which is at least 51% (HLC v PTL & Anor [2024] 10 MLJ 640, HC). In the circumstance, the Plaintiff’s claim against both defendants is dismissed with costs.

Since the plaintiff has not succeeded in any of the causes of action, there is no necessary for this court to assess damages. However, in the event of an appeal, this trial court will provide some observations as follows.

General Damages 53. In this context, plaintiff’s counsel argued that the plaintiff had been neglected in terms of health and hygiene by the first defendant since the age of approximately 2 to 3 years old. This neglect allegedly continued until the plaintiff was 6 years old. During this period, the plaintiff suffered from wounds, scabies on her hands, and damaged fingernails. These physical conditions were allegedly left untreated for an extended period. Although some wounds and scabies had healed, the plaintiff was left with numerous scars on her body. PW1 claimed that he was repeatedly prevented from meeting the plaintiff on his designated access days without any reasonable justification. Additionally, PW1 stated that when the first defendant was required to bring the plaintiff for a physical examination at the hospital, she deliberately avoided doing so. PW1 further contended that this act was an attempt to conceal the plaintiff’s neglected and abused condition from the relevant authorities.

Furthermore, the plaintiff’s counsel submits that the act of sexual harassment and/or assault by the second defendant must be taken seriously and warrants an appropriate punishment. The plaintiff’s counsel highlights that any form of sexual misconduct towards a child, even if it involves mere touching of private parts, has a profound impact on the child’s mental and emotional well-being.

Aggravated and exemplary

In the current case, the plaintiff’s counsel submits that exemplary damages should be awarded to serve as a lesson to the defendants, who have violated their duty of care as individuals entrusted with familial ties, duty and authority over the plaintiff. The plaintiff stated that the aforementioned facts as argued for the plaintiff’s case to justify a claim for aggravated damages by arguing the actions of the first and second defendants have resulted in not only physical harm but also severe emotional distress.

Special damages 56. The first and second defendants disputed the contents of the invoice prepared by PW2’s clinic, arguing that PW2 conducted only one assessment, yet the invoice listed two different assessments. In fact, only one assessment was conducted on the plaintiff to determine her psychological condition. However, the plaintiff’s counsel submits that this one assessment included two components namely a parental interview (where PW2 admitted to interviewing only the father, as noted on page 139 of the Notes of Proceeding) and the child’s own evaluation. These two components were combined into a single report which was the Integrative Clinical Report dated 14.05.2023. During the hearing, the defendants’ counsel had also argued that the invoice issued by PW2 was invalid due to a name error, as it was made out to a different person instead of PW1’s name. In this regard, PW2 confirmed that the invoice had been received and paid for by the plaintiff’s father, PW1. Whilst, PW1, in his testimony, also stated that he had made the payment for the assessment. The plaintiff’s counsel further requested this court to take into consideration the costs incurred for PW’s attendance via zoom to provide testimony for the case. The invoice from PW2, the payment receipt confirming such transaction, and proof of online payment made by PW1 were submitted as evidence.

Costs 57. In civil proceeding, it is a well-established principle that costs generally follow the event, meaning the successful party is typically awarded costs (Lee Sea King v Chung Li Ling [2021] MLJU 3035, HC). The plaintiff here prays for RM15,000.00 for costs. It is mindful that, the order for costs is in fact a matter of judicial discretion exercised by the trial court.

Therefore, in the written submission, the plaintiff sought a total of damages sum, which includes the following. Whilst, it appears that the defendants' counsel did not address the issue of quantum: No.

General damages: Abrasions and scarring RM13,000.00 2. mental distress RM20,000.00 3. Aggravated Damages & Exemplary Damages

Special Damages: Payment receipt from International Psychology Centre Sdn Bhd [Official Receipt No. CS2305-34] dated 12.05.2023 RM910.00 5. Payment receipt from International Psychology Centre Sdn Bhd [Official Receipt No. CS2305-34A] dated 14.05.2023 RM910.00 6. Payment receipt from International Psychology Centre Sdn Bhd [Official Receipt No. CS2412-01] dated 30.11.2024 for witness PW2, who was called to testify via zoom before the court. The payment was completed before the date the PW2 was asked to testify on 3.12.2024. RM2,976.00 TOTAL SUM RM67,796.00

At the outset, for the reasons stated above, this court found that the plaintiff failed to prove, on the balance of the probabilities, her claim against the defendants. Accordingly, the plaintiff’s action is dismissed and the plaintiff is ordered to pay costs of RM5,000.00 to the defendants. Dated this 21 February 2025 SGD ------------------------------ (TEOH SHU YEE) MAGISTRATE MAGISTRATES’ COURT AT ALOR GAJAH FOR THE PLAINTIFF : En. Sreedhara Naidu (via Zoom) & Ms. Nik Nur Syazwani (open court) TETUAN NAIDU CHAMBERS FOR THE DEFENDANTS : Mr. Mohd Hanif (open court)