…, commits an offence and shall, on conviction, be punished 120 with imprisonment for a term not exceeding twenty years and shall also be liable to whipping. Explanation 1 – The act of touching may involve the act of touching with any part of the body or with an object and may be done through anything including anything worn by the 125 person touching or by the child touched. Explanation 2 – In determining what constitutes sexual purposes, the court may take into consideration, among others, the part of the body that is touched, the nature and extent of the act of touching or the physical contact and all 130 other circumstances surrounding the conduct.” Background facts [6]. The incident was alleged to have occurred in the early morning of Monday, 8 August 2022, between 5:00 am and 5:10 am, at a 135 residence located at XYZ. The complainant (SP3), was then residing at the house with her grandmother (SP4), her maternal uncle (appellant) and other relatives. At the time of the alleged incident, the complainant (SP3) was alone in her bedroom. According to her testimony, the room was usually shared with her 140 grandmother (SP4), but on the morning of 8 August 2022 around 5:00 am, SP4 had gone to the kitchen with the appellant’s mother (SD2) to prepare sahur and SP3 was alone in the room. [7]. According to SP3’s testimony, while she was lying on the bed facing the wall, she heard the door open and initially assumed it was her 145 grandmother (SP4). She continued resting but soon felt someone lie beside her and hug her from behind. In a semi-conscious or “mamai” state, she identified the person as the appellant by his voice and appearance. SP3 claimed that the appellant then kissed her on the edge of her lips and attempted to fondle her buttocks. She said 150 she confronted him, and he left the room. SP3 then sent messages to her aunt (SP5) via WhatsApp disclosing the incident, which led to a police report and the appellant’s subsequent arrest. [8]. In response, the appellant stated that he had been in the kitchen with his mother (SD2), who had complained that SP3 was being 155 noisy and using her mobile phone at an inappropriate hour. According to the appellant’s defence, he entered the complainant’s (SP3’s) room on instructions from his mother (SD2) and testified that he entered the room solely to confiscate the complainant’s (SP3’s) phone. This testimony of the appellant was corroborated by SD2. 160 However, during cross-examination, the complainant (SP3) was asked whether the appellant had entered the room on SD2’s instructions, but she denied it. Trial in Sessions Court [9]. The prosecution called seven witnesses, including the complainant 165 (SP3), her grandmother (SP4), her aunty (SP5), and her uncle (SP6). The appellant, SD1, gave sworn testimony, and his mother (SD2) was also called as a defence witness. [10]. The primary defence of the appellant was that he entered the complainant’s room at the request of his mother (SD2) to confiscate 170 the complainant’s mobile phone due to loud disturbances in the early morning. [11]. At the end of the defence case, the trial judge convicted the appellant and sentenced him to three (3) years imprisonment and one stroke of the cane for each offence, with the custodial sentences 175 to run concurrently. [12]. The appellant appeals to this court against the conviction and sentence. On the other hand, the prosecution appeals to enhance the sentence. ISSUES FOR DETERMINATION 180 [13]. The following issues arise for determination in this appeal: a) whether the learned Sessions Court Judge erred in law and in fact in rejecting the appellant’s defence on the ground that it was not put to the prosecution witnesses and that it must be inherently reasonable or believable; 185 b) whether the prosecution proved the complainant was under 18 for the charge to be sustained against the appellant under section 14(a) of Act 792; and c) whether the rejection of the defence resulted in a miscarriage of justice warranting appellate intervention. 190 Issue: Whether Sessions Judge erred by rejecting defence for not being put to a prosecution witness and lacking inherent reasonableness [14]. The central error in the learned Sessions Court Judge’s reasoning lies in the finding that the appellant’s defence was not put to the 195 prosecution witnesses, thereby rendering it an afterthought and unbelievable. [15]. The appellant claimed he entered the complainant’s room around 5:00 am on 8 August 2022 to confiscate her mobile phone following complaints by his mother that the complainant had been noisy and 200 disturbing her. SD2 corroborated this, confirming she instructed the appellant to do so because of the complainant’s behaviour. [16]. This finding that the appellant’s defence was not put to the prosecution witnesses is not only factually incorrect but also legally flawed. The notes of evidence from the trial proceeding demonstrate 205 that the defence, namely that the appellant entered the complainant’s room at the request of his mother (SD2) to seize the complainant’s mobile phone due to disturbances caused by the complainant’s use of the phone, was indeed put to the complainant (SP3) during cross-examination. The complainant was specifically 210 asked whether she agreed that the appellant had entered her room on instruction from “Opah Andak”, i.e., SD2 because SP3 had been noisy and playing with her phone. Though, SP3 responded in the negative in her evidence, the defence was nonetheless clearly put to the prosecution’s witness. This is evident from the notes of 215 evidence: Q: “Saya katakan kepada kamu semasa Pak Teh (tertuduh) balik ibu Pak Teh, Opah Andak (SD2) beritahu kepada Pak Teh kamu tak tidur-tidur lagi kamu asyik main telefon je. Saya katakan seterusnya 220 kerana arahan daripada Opah Andak Pak Teh masuk bilik untuk ambil telefon kamu? A: Tidak.” [17]. Now, as contended by the prosecution, a failure by the defence to 225 put a material line of defence to the prosecution’s witnesses during cross-examination may amount to an acceptance of the opposing testimony. As held in Carapiet v. Derderian AIR [1961] Cal. 359, this is not a mere technicality but a rule of essential justice rooted in the principle established in Browne v. Dunn [1893] 6 R 67, which 230 aims to prevent trial by ambush and to ensure fairness in adversarial proceedings. This principle has been referred to in many cases; it suffices to cite one such case here that is Aik Ming (M) Sdn Bhd & Ors v. Chang Ching Chuen & Ors and Another Case [1995] 3 CLJ 639 (CA) ; [1995] 2 MLJ 770 ; [1995] 3 AMR 2375; [1995] 2 235 MLRA 546, where Justice Gopal Sri Ram (as he then was), referring to the rule in Browne v. Dunn rule, stated: “This rule as to cross-examination to which I have just adverted derives its name from the case in which it was expressed. It is the decision of the House of Lords in Browne 240 v. Dunn [1893] 6 R 67 where Lord Herschell LC stated the principle in this way (at p. 70 of the report): Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct 245 of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact, by some questions put in cross-examination showing that that imputation is intended to be made, and not to take 250 his evidence and pass it by as a matter altogether unchallenged and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the 255 story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any 260 explanation which is open to him, and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. In the same case, Lord Halsbury had this to say (at p. 76 of 265 the report): My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. 270 To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, 275 and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to. 280 Having dealt with the evidence in that case, Lord Halsbury continued (at p. 77): My Lords, it seems to me that it would be a perfect outrage and violation of the proper conduct of a case at Nisi Prius if, after the learned Counsel had 285 declined to cross-examine the witness upon that evidence, it is not to be taken as a fact that that witness did complain of the plaintiff's proceedings, that he did receive advice, that he went round to Mr. Dunn as a solicitor, and that he did sign that retainer, 290 the whole case on the other side being that the retainer was a mere counterfeit proceeding and not a genuine retainer at all. The rule in Browne v. Dunn has been applied by Indian Courts in the context of the Indian Evidence Act 1872, on 295 which is based our Evidence Act 1950. I need only refer to the decision in Carapiet v. Derderian AIR [1961] Cal. 359, where, Mukharji J, …” [18]. In the present case, the Sessions Court Judge correctly stated the 300 legal principle that failure to put the defence case to prosecution witnesses may render it an afterthought and therefore lacking in credibility. However, on the facts, the notes of evidence clearly show that the defence was indeed put forward during cross-examination i.e. the very same defence that the trial judge erroneously found had 305 not been put to the prosecution’s witnesses. [19]. It is trite that a trial court is bound to consider a defence raised by the accused, and not to reject it solely on the basis that it was not accepted by the prosecution witness. In Mat v PP [1963] MLJ 263; [1963] 1 MLRH 400, the Federal Court held: 310 “If you accept the explanation given by or on behalf of the accused, you must of course acquit. But this does not entitle you to convict if you do not believe that explanation, for he is still entitled to an acquittal if it raises in your mind a reasonable doubt as to his guilt, as the onus of proving his 315 guilt lies throughout on the prosecution.” [20]. This passage points to the cardinal principle that the defence need not be believed in full to justify an acquittal, it suffices that it raises a reasonable doubt, it is thus immaterial that SP3 denied the 320 suggestion; what matters is that the defence was canvassed. In other words, it was put to the prosecution witness. [21]. Further, the Court of Appeal in Ayoromi Helen v PP [2005] 1 CLJ 1; [2004] 2 MLRA 322; [2005] 1 MLJ 699; [2005] 1 AMR 405 held that failure to cross-examine a witness on a material point may 325 amount to acceptance of the opposing version. Conversely, where a suggestion is indeed put, even if denied, the trial court is duty-bound to evaluate it on its merits. The learned Sessions Judge erred in failing to do so and misdirected herself in law when she summarily rejected the appellant’s defence on a mistaken premise that the line 330 of defence was not put to the prosecution’s witnesses. His Lordship Augustine Paul JCA (as he then was) with reference to established cases and an authoritative legal text, states the following: “It becomes patent that the learned High Court Judge did not accept the explanation of the accused as it was not 335 supported by other evidence. In coming to his conclusion he had failed to consider the fact that the material part of the defence of the accused was not subjected to any cross-examination. As Raja Azlan Shah CJ (Malaya) (as His Highness then was) said in Wong Swee Chin v. PP [1980] 340 CLJU 138; [1980] 1 LNS 138; [1981] 1 MLJ 212 at p. 213: A correct statement of the law is that failure of the defence to cross examine the prosecution witnesses on the matter merely goes to the credibility of their testimony. On this point we need only say there is a 345 general rule that failure to cross examine a witness on a crucial part of the case will amount to an acceptance of the witness's testimony. But as is common with all general rules, there are also exceptions as pointed out in the judgment of the 350 Supreme Court of New Zealand in Transport Ministry v. Garry where Haslan J said at p. 122: In Phipson on Evidence (11th Ed) paragraph 1544 the learned authors suggest examples by way of exception to the general principle that failure to cross 355 examine will amount to an acceptance of the witness's testimony, viz, where " the story is itself of an incredible or romancing character, or the abstention arises from mere motives of delicacy or when counsel indicates that he is merely abstaining 360 for convenience, eg, to save time. " And where several witnesses are called on the same point, it is not always necessary to cross examine them all'. This rule would apply with equal force to witnesses called by 365 the defence as well. This is particularly so as there is a duty on the prosecution to negate defences that have been raised and the burden of proof is on the prosecution to prove its case beyond reasonable doubt till the end of the case. This would therefore require cross-examination of evidence given 370 by the defence witnesses by the prosecution in order to discharge the burden it carries. Clearly the defence advanced by the accused cannot be said to be of a romancing character. Nor were other witnesses called by the defence to testify on the same issue so as to dispense with 375 the cross-examination of the accused. The fact that the defence is not a recent fabrication is supported by the contents of exh. D19 which is similar to the defence advanced. It was made three days after the arrest of the accused. Greene who was arrested together with the 380 accused and who has since passed away would have made a statement as well. It would have either supported the defence of the accused or would have contradicted it. If it is the latter the prosecution ought to have tendered it in evidence under s. 32(1)(i) of the Evidence Act 1950 to rebut 385 the defence of the accused. In the absence of such a course having been adopted by the prosecution it can safely be inferred that it is favourable to the defence of the accused. It must also be noted that the accused said in cross-examination that when she told the Customs Officer that 390 Greene gave her the powder, Greene did not say anything. This can only mean that he did not dispute it thereby adding greater weight to the evidence of the accused. In the circumstances the accused ought to have been cross-examined on the defence advanced by her and the failure of 395 the prosecution to do so amounts to an acceptance of the material parts of her defence. This means that she has established that she had no knowledge that what was found in her custody were in fact dangerous drugs with the result that there is no evidence to show that she was in possession 400 of them, an element which must be proved before the presumption contained in s. 37(da) of the Dangerous Drugs Act 1952 can be considered. The learned High Court Judge had therefore erred in rejecting the defence of the accused without taking relevant matters into consideration. 405 [22]. Not only the line of defence was put to the prosecution witness, but in fact, corroborative evidence supporting the appellant’s version was provided by SD2, who testified that she instructed the appellant to go into the complainant’s room because the complainant had 410 been noisy and playing with her phone. This testimony, which was not seriously challenged in cross-examination, should have fortified the defence narrative. Further, the investigating officer (SP7), under cross-examination, confirmed that the complainant had not slept and was awake using her phone on the night in question, this is in 415 line with the core assertion of the appellant’s defence. (cross-examination of Investigating Officer (SP7) “Q: Ada puan siasat kenapa alasan tidak cukup tidur. Kenapa tidak cukup tidur berlaku? A: Pengadu tidur lewat. 420 Q: Tidur lewat bersebab atau tanpa sebab? A Tanpa sebab. Q: Tahu tanpa sebab? A: Main handphone. Q: Setuju dengan saya kalaulah kejadian berlaku 425 pada pukul 5 pagi (merujuk perenggan 3) sehingga perenggan 4 (dibacakan). Setuju tak kalau saya katakan pukul 5 pun pengadu masih belum tidur lagi? A Tak pasti. Q: Kenapa tak tanya dia tidur pukul berapa? 430 A: Saya tak tanya pengadu. Q: Risikonya besar kan boleh jadi dia berbohong kepada puan? A Tak pasti. 435 [23]. This Court is not required to determine with certainty whether the learned Sessions Court Judge would have ultimately acquitted the appellant had she correctly appreciated that the appellant’s version of events was put to the prosecution’s witnesses. That is not the test in our criminal justice system. The governing principle is that the 440 accused is only required to raise a reasonable doubt in the prosecution’s case, not to prove his innocence affirmatively. It is evident from the trial court's reasoning that the learned judge rejected the appellant’s defence on the sole ground that it was allegedly not put to the prosecution’s witnesses, a finding which 445 plainly contradicted by the record of proceedings, particularly the cross-examination of SP3. This erroneous assumption indicates that the learned judge failed altogether to evaluate the defence on its merits. Such an omission constitutes a material non-direction in law and a miscarriage of justice. As held in Ganapathy A/L 450 Rengasamy v PP [1999] 1 AMR 1; [1998] 2 MLJ 577; [1998] 2 CLJ 1; [1998] 1 MLRA 589, even a weak defence must be judicially considered, especially where it is supported by portions of the prosecution’s own evidence. In these circumstances, this Court finds that the failure to consider the defence due to an incorrect 455 factual premise or a mistake, to put it mildly, amounts to a serious misdirection warranting appellate intervention. These were the words of the Federal Court in Ganapathy A/L Rengasamy v PP (supra): "It needs to be remembered that however weak a defence 460 may be, trial judges being judges of both fact and law should not just brush aside the defence on the basis that the prosecution witnesses are to be believed and not the defence. Where the law casts the onus of giving an explanation upon an accused person, and the explanation is 465 given, which if consistent with innocence, the court is duty bound to consider whether it might reasonably be true, although not convinced of its truth. On the issue of the court's duty to consider the defence, the age old decision in Mat v PP [1963] MLJ 263 is still good law today as it was then. This 470 was followed by the Supreme Court in Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169.” [24]. Also, at this juncture, I shall mention that the learned Sessions Court Judge erred in both fact and law in stating this in paragraph 46 of 475 the Grounds of Judgment: “setelah menilai keterangan okt dan SP2, Mahkamah ini mendapati pembelaan yang dikemukakan okt bukanlah satu keraguan yang munasabah. la sekadar rekaan semata-mata. Oleh itu okt di dapati bersalah” 480 [25]. The correct legal test is not whether the defence is inherently reasonable or believable, but whether the defence succeeded in raising a reasonable doubt on the prosecution’s case. This fundamental principle was affirmed in Lim Kheak Teong v PP 485 [1984] 2 CLJ 219; [1985] 1 MLJ 38; [1984] 1 MLRA 126, where the Federal Court held: “It is sufficient for the accused to cast a doubt on the prosecution case. From the beginning to the end of a case, the burden remains upon the prosecution to prove the guilt 490 of the accused.” [26]. Furthermore, in PP v Saimin & Ors [1971] 2 MLJ 16; [1971] CLJU 115; [1971] 1 MLRH 91, it was reiterated that even a false defence does not absolve the prosecution of its duty to prove the case 495 beyond a reasonable doubt. The court held: “a conviction cannot be sustained even if the Court is satisfied that the prosecution story "may be true” unless and until it is found that the prosecution story "must be true". The burden of proof remains on the prosecution 500 throughout the trial. The falsity of the defence does not relieve the prosecution from proving the prosecution case beyond reasonable doubt” In the present case, the learned judge erroneously placed an undue 505 burden on the appellant to prove the truth of his defence by asking whether the defence itself is inherently reasonable or believable, instead of assessing whether it raised a reasonable doubt. This misdirection vitiates the conviction and warrants appellate intervention. 510 Issue: Failure to Prove Complainant Was Under 18 years of Age [27]. The appellant argued that the complainant (SP3) stated under oath she was 18 years old at the time of the incident, and this was never challenged or clarified by the prosecution. Without a birth certificate, and relying only on the IC number, the prosecution failed to 515 conclusively prove she was under 18. [28]. The offences under Act 792 relate to children under the age of eighteen (18) years as provided in Section 2(1) of Act 792: “2 Application