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1 IN THE HIGH COURT IN MALAYA AT IPOH 5 IN THE STATE OF PERAK DARUL RIDZUAN CRIMINAL APPEAL NO. AA-41S(A)-7-12/2023 [IN MAGISTRATE COURT AT TELUK INTAN, PERAK CRIMINAL APPEAL NO.: AC-82JS-1-06/2021] 10 IBRAHIM BIN SHAHARI [NRIC NO.: 690801-05-5177] … APPELLANT AND 15 PUBLIC PROSECUTOR …RESPONDENT CRIMINAL APPEAL NO. AA-41S(A)-8-12/2023 20 [ IN MAGISTRATE COURT AT TELUK INTAN, PERAK CRIMINAL APPEAL NO.: AC-82JS-1-06/2021] PUBLIC PROSECUTOR … APPELLANT 25 AND IBRAHIM BIN SHAHARI [NRIC NO.: 690801-05-5177] …. RESPONDENT GROUNDS OF JUDGMENT 30 S/N tzFXswZ1yk6XdcuL/qCOqg Introduction [1]. This case is a reminder that a mere denial, couched in forgetfulness and silence, cannot shield an accused from legal accountability when the alleged misconduct unfolds in the presence of others and is supported by direct, credible 35 testimony. The law demands more than a mere denial; it demands truth. The appellant, convicted under Section 354 of the Penal Code for outraging the modesty of a colleague in a public hospital lift, now appeals against both the conviction and sentence. Meanwhile, the prosecution cross-appeals, arguing 40 that the sentence of six months' imprisonment and a RM2,000 fine, with two months' imprisonment in default, is insufficient given the seriousness of the offence. [2]. The appellant obtained a stay of execution for his imprisonment sentence. The Magistrate granted the stay but only for the 45 imprisonment term, while the fine had been paid. Background facts [3]. On the night of 9 February 2021, at approximately 9:10 PM, the complainant nurse at Hospital Teluk Intan had just completed her evening shift and proceeded towards the elevators to go 50 home. [4]. As the elevator doors opened, several medical assistant students (“MA students”) were standing in front, at the entrance of the lift. Behind them, a group of hospital porters, S/N tzFXswZ1yk6XdcuL/qCOqg including the appellant, was waiting inside. The complainant 55 requested the MA students to give way, and they complied by stepping aside. As she stepped into the elevator and was about to turn to face the lift doors, she suddenly felt appellant pressing his chest against hers. [5]. According to the complainant, the appellant moved from the 60 back right corner of the elevator, towards her, and forcefully pressed his chest against her, saying "Laluan-laluan" (give way) while mocking her tone. She described the contact as strong and deliberate, which caused her significant discomfort and embarrassment. She instinctively pushed him away using her 65 hand and verbally told him to move aside, but he remained pressed against her, stiffening his body. [6]. At that moment, Siti Noor Azuwa binti Ali (SP3), another hospital worker in the elevator, saw what was happening and immediately rebuked the appellant, saying "Eh, bini orang kut" 70 (Hey, she is someone else’s wife). However, instead of stepping back, the appellant laughed and maintained his position, continuing to press his body against the complainant’s chest. [7]. Feeling trapped and violated, the complainant used her umbrella to push the appellant away, but he still did not move. 75 She recalled feeling deeply humiliated, particularly because several other people inside the elevator, including male hospital staff, started laughing (except SP3). She could not understand why they found the situation amusing. S/N tzFXswZ1yk6XdcuL/qCOqg [8]. The elevator descended from the third floor to the ground floor, 80 and the appellant remained in close physical contact with her throughout the descent. The doors opened once the elevator reached the ground floor, and everyone exited. The appellant too, but said nothing and walked away as if nothing had happened. 85 [9]. The appellant later filed a formal complaint regarding the incident, leading to the appellant’s arrest, charge, and subsequent conviction under Section 354 of the Penal Code for using criminal force with the intent to outrage modesty. [10]. The appellant completely denied the incident, except for 90 entering the elevator where SP3 was present. He did not explicitly state that he was aware of the complainant’s presence during the event. His defence was based on denying any intentional contact, insisting that any physical interaction was accidental due to the crowded space. He further denied that the 95 complainant rebuked or hit him with an umbrella, and SP3 reprimanded him. [11]. When questioned by the police regarding the alleged incident inside the elevator, the appellant initially stated that he did not remember the event. When asked how he could not recall, he 100 clarified that he did not remember the date of the incident. However, when confronted with the specific date and time (9 February 2021, at around 9:00 PM), he confirmed that he had been working the evening shift and left for home after S/N tzFXswZ1yk6XdcuL/qCOqg completing his duties. Ultimately, he denied all allegations, 105 asserting that he did not commit the act described by the complainant. This is what he had stated to the police during “rakaman percakapan OKT”: “S: BAGAIMANA DENGAN KEJADIAN YANG DIKATAKAN OLEH PENGADU DI DALAM LIF? BAHAWA KAMU 110 ADA PERGI KEPADANYA DAN MERAPATKAN DADA KAMU KEPADA DADA PENGADU. J: SAYA TIDAK INGAT KEJADIAN TERSEBUT. s: BAGAIMANA KAMU BOLEH KATAKAN YANG KAMU TIDAK INGAT? 115 J: SAYA TIDAK INGAT TARIKH KEJADIAN TERSEBUT. S: PADA 09/02/2021 JAM LEBIH KURANG 0900 MALAM DIMANA KAMU BERADA? J: SAYA KERJA SHIFT PETANG PADA HARI TERSEBUT DAN SELESAI TUGAS PADA JAM 0900 MALAM DAN 120 SAYA PULANG KE RUMAH SEPERTI BIASA. S: ADAKAH KAMU MENAFIKAN SEGALA ADUAN YANG DIBUAT KE ATAS KAMU? J: YA, SAYA MENAFIKANNYA DAN SAYA TIDAK BUAT SEPERTI APA YANG DICERITAKAN” 125 Grounds of appeal a) SP3’s testimony did not clearly establish that he pressed his chest against the complainant, making the conviction unsafe; 130 S/N tzFXswZ1yk6XdcuL/qCOqg b) The Magistrate erred in accepting the complainant’s testimony as overwhelmingly credible without independent corroboration; c) The crowded nature of the elevator made intentional contact unlikely, casting doubt on the allegation; 135 d) The prosecution failed to call other key witnesses, including Marizuan, who was present but did not testify; and e) The appellant argues that the prosecution failed to prove the case beyond a reasonable doubt, and the conviction 140 should be overturned. [12]. In criminal appeals, the court’s duty is not to determine whether the trial court’s decision was merely wrong, but to assess whether the conviction is safe. As emphasised by Gopal Sri 145 Ram JCA in Mohd Johi Said v PP [2005] 1 CLJ 389; [2004] 6 AMR 825; [2005] 5 MLJ 409; [2004] 2 MLRA 425: “Unlike civil appeals, where the appellant carries the burden of showing that the judge at first instance went wrong, in a criminal case the duty of the court is to 150 consider whether the conviction is right. The correct approach is therefore not whether the decision is wrong but whether the conviction is safe.” [13]. In an offence under section 354 of the Penal Code (assault or 155 use of criminal force to outrage modesty), the prosecution bears S/N tzFXswZ1yk6XdcuL/qCOqg the burden to establish the following essential elements, as set out in Ratanlal & Dhirajlal’s Law of Crimes (27th Edition) at page 1587: a) That the victim is a female; 160 b) That the accused assaulted her or used criminal force against her; and c) That the accused did so with the intention of outraging her modesty, or with the knowledge that such an act was likely to outrage her modesty. 165 Grounds of Appeal (a): SP3’s testimony did not clearly establish that he pressed his chest against the complainant, making the conviction unsafe [14]. The complainant unequivocally testified that the appellant pressed his chest against hers inside the elevator. Her 170 testimony was clear, detailed, and consistent, describing how the appellant deliberately moved from the back-right corner, approached her, and forcefully pressed his chest against her while mocking what she had uttered. She further stated that the appellant’s body remained in contact with hers throughout the 175 descent from the third floor to the ground floor. This direct, first-hand account of physical contact leaves no doubt that criminal force was used, fulfilling the essential element under Section 354 of the Penal Code. S/N tzFXswZ1yk6XdcuL/qCOqg [15]. The learned Magistrate did not err in this respect. The learned 180 Magistrate found that the appellant deliberately pressed his chest against the complainant inside the elevator, based on the overwhelmingly credible testimony of the complainant (SP1). Her grounds of judgment explicitly states: "Setelah beliau masuk lif tersebut, Perayu secara tiba- 185 tiba telah merapatkan dirinya dengan mangsa dan melagakan dadanya dengan kuat ke arah mangsa. Mangsa telah bertindak dengan menolak dada Perayu dan menyuruh Perayu berundur namun Perayu tidak mengalah dan tidak kebelakang." 190 "Mangsa melalui keterangannya telah menjerit sambil memarahi Perayu di atas tindakannya itu yang secara jelas menunjukkan bahawa perbuatan tersebut dilakukan tanpa kerelaan Mangsa. Mangsa kemudiannya bertindak dengan memukul dan menolak 195 Perayu menggunakan payung yang mangsa pegang namun Perayu enggan bergerak dan masih merapat dengan mangsa." [16]. The learned Magistrate further held that SP3, an independent 200 witness, saw the act and confirmed that the accused pressed his chest against the complainant, reinforcing that this was not an accident but an intentional act. The Magistrate ruled that the appellant’s failure to retreat despite being pushed and reprimanded. This further demonstrated his guilty intent. 205 [17]. The appellant’s counsel argued that there was no conclusive evidence of actual physical contact between the appellant and S/N tzFXswZ1yk6XdcuL/qCOqg the complainant. The defence contended that the testimony of SP3 did not explicitly confirm that the appellant pressed his chest against the complainant. Instead, SP3 only described 210 movement but did not directly witness physical contact. The appellant also claimed that the complainant’s version of events was unreliable, emphasising that no other individuals in the elevator testified to support the allegation. Further, the defence asserted that the complainant’s actions, such as holding an 215 umbrella and a bag, made chest-to-chest contact unlikely. [18]. This court is of the view that the appellant’s claim that there was no evidence of actual contact is unfounded. The complainant provided clear, consistent, and credible testimony that the appellant deliberately pressed his chest against hers. Her 220 immediate reaction, verbally reprimanding him, pushing him away, and using her umbrella, confirms the physical contact. SP3, an independent witness, saw the appellant’s inappropriate approach and rebuked, further supporting the complainant’s version of events. The defence’s argument that no other 225 witnesses testified does not negate the credibility of direct evidence. Given the strong and consistent testimony, the Magistrate rightly found that physical contact did occur, fulfilling the offense under Section 354 of the Penal Code. [19]. An appellate court must accord due deference to the trial court’s 230 findings on credibility and demeanour of witnesses, mainly where those findings are based on direct observation through viva-voce examination of witnesses. As affirmed by the Federal S/N tzFXswZ1yk6XdcuL/qCOqg Court in Herchun Singh v PP [1969] 1 LNS 52; [1969] MLRA 382, such findings should not be disturbed unless there are 235 substantial and compelling reasons to do so, given that the trial judge had the distinct advantage of seeing and hearing the witnesses first-hand. This is what the Federal Court said: “This view of the trial Judge as to the credibility of the witness must be given proper weight and consideration. 240 An appellate Court should be slow in disturbing such finding of fact arrived at by the Judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding.” 245 Underlined emphasised Grounds of Appeal (b): The Magistrate erred in accepting the complainant’s testimony as overwhelmingly credible without independent corroboration [20]. The appellant’s argument that the Magistrate erred in accepting 250 the complainant’s testimony as overwhelmingly credible without independent corroboration is without merit. The complainant (SP1) provided a clear, detailed, and consistent account of the incident, which SP3, an independent eyewitness, supported. SP3 confirmed that she witnessed the appellant moving 255 towards the complainant, pressing his chest against hers, and failing to withdraw despite being reprimanded. S/N tzFXswZ1yk6XdcuL/qCOqg [21]. The law does not mandate corroboration in sexual offenses if the complainant's testimony is compelling. The Magistrate correctly assessed the demeanour and credibility of the 260 complainant (SP1), finding her testimony consistent despite cross-examination. The Magistrate deemed the appellant’s denial as an afterthought, which failed to raise a reasonable doubt. Thus, the conviction based on complainant’s testimony, supported by SP3, is legally sound and justified. As held in 265 Public Prosecutor v Mardai [1950] 1 MLJ 33; [1949] CLJU 65 and reaffirmed in Kwan Peng Hong v PP [2000] 4 SLR 96 and PP v Mohamad Malek Ridhzuan bin Che Hassan [2014] 1 MLJ 363; [2013] 8 CLJ 359, the court must first warn itself of the inherent danger in relying solely on uncorroborated 270 testimony. However, if the complainant’s evidence is “unusually convincing” or “unusually compelling”, a conviction may safely follow, as the evidence would suffice to prove the prosecution's case beyond a reasonable doubt. These were the words of Justice Spencer Wilkinson in Public 275 Prosecutor v Mardai (supra) : “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 280 cases of this kind unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant’s story.” S/N tzFXswZ1yk6XdcuL/qCOqg Grounds of Appeal (c): Crowded Elevator Défense [22]. The appellant contended that the crowded nature of the elevator 285 made it unlikely for him to have intentionally pressed his chest against the complainant, suggesting that any contact was accidental. However, the evidence before the court clearly disproved this assertion. The complainant (SP1) testified that the appellant was originally standing at the back-right corner of 290 the elevator and intentionally moved toward her, pressing his chest against hers while mocking her by saying "Laluan-laluan". [23]. This version of events was corroborated by SP3, an independent eyewitness, who observed the appellant’s movement and rebuked him on the spot, saying, "Eh, bini orang 295 kut." SP3’s reaction demonstrates that the act was not merely a result of congestion but was clearly perceived as improper and deliberate. Furthermore, the appellant’s refusal to retreat when pushed and rebuked, and instead continuing to press against the complainant, reinforces the finding that his conduct was 300 intentional and not the product of spatial constraints. [24]. The appellant’s defence amounts to nothing more than a bare denial, unsupported by any plausible explanation or alternative version of events. Denying an allegation merely on the basis of being unable to recall the incident, even after being confronted 305 with the date, is unconvincing. His vague assertion of accidental contact due to crowding stands in stark contrast to the prosecution’s evidence. SP3, an independent eyewitness, clearly observed the appellant’s deliberate movement and S/N tzFXswZ1yk6XdcuL/qCOqg rebuked him on the spot, affirming that the act was improper. 310 The appellant’s refusal to retreat despite being pushed and scolded further confirms the intentional nature of the misconduct. His denial lacks credibility. [25]. Therefore, the court finds that the appellant’s claim of accidental contact due to a crowded lift is implausible and inconsistent with 315 the eyewitness account. The Magistrate did not err in rejecting this defence, and this ground of appeal is accordingly dismissed. Grounds of Appeal (d): Failure to Call Key Witnesses [26]. The appellant argued that the prosecution’s failure to call other 320 individuals present in the elevator, particularly a hospital staff member named Marizuan, weakened the case and rendered the conviction unsafe. However, this argument holds no merit. It is a well-established principle that the prosecution has discretion in selecting which witnesses to call, as long as the 325 evidence adduced is sufficient to establish the charge beyond a reasonable doubt. [27]. In this case, the testimony of SP3, an independent eyewitness, was clear, direct, and corroborated the complainant’s account of the incident. SP3 not only saw the appellant move toward the 330 complainant and press against her, but also rebuked him immediately, indicating that she perceived the conduct as improper and intentional. Her testimony, coupled with the S/N tzFXswZ1yk6XdcuL/qCOqg detailed and consistent evidence from the complainant, was more than adequate to prove the charge. 335 [28]. The absence of additional witnesses, including Marizuan, does not create a gap in the prosecution’s case, nor does it undermine the credibility of the evidence presented. As such, the court is satisfied that failing to call further witnesses was neither prejudicial nor fatal to the prosecution’s case. This 340 ground of appeal is accordingly rejected. Grounds of Appeal (e): Failure to Prove Case Beyond a Reasonable Doubt [29]. The appellant asserted that the prosecution failed to prove the case beyond a reasonable doubt, rendering the conviction 345 unsafe. However, upon thorough review, this court finds that the Magistrate correctly concluded that the evidence against the appellant was overwhelming. [30]. The complainant’s testimony was clear, consistent, and credible, detailing how the appellant intentionally pressed his 350 chest against her in a confined space, causing distress and humiliation. Her account was corroborated by SP3, an independent eyewitness, who witnessed the incident and immediately rebuked the appellant. This provided direct and independent verification of the complainant’s version. 355 [31]. The appellant’s defense amounted to a bare denial and a vague claim of not remembering the incident. He provided no plausible S/N tzFXswZ1yk6XdcuL/qCOqg explanation or alternative account of what transpired in the lift. His failure to retreat despite being pushed and reprimanded further demonstrated guilty intent. 360 [32]. Given the strength, consistency, and corroboration of the prosecution’s evidence, the Magistrate was entitled to be satisfied beyond a reasonable doubt. Accordingly, this ground of appeal is wholly without merit and is rejected. Sentence 365 [33]. The prosecution contends that the sentence imposed by the Magistrate is manifestly inadequate. The respondent argues that though the Magistrate did not err in law or fact, the sentence of imprisonment was unnecessary. Citing cases such as PP v Ali bin Ahmad [2020] 1 CLJ 548; [2019] MLJU 361; [2019] 370 AMEJ 0396, Baharudin Mat Nor v PP [2020] 7 CLJ 388, and PP v Kamarul Azamin Mohamad & Another Appeal [2021] 8 MLJ 502; [2021] 2 CLJ 386; [2021] 4 AMR 721, the respondent highlights that non-custodial sentences with fines alone have been upheld or imposed even in cases involving more serious 375 conduct, such as physical contact with minors or repeated acts of molestation. These authorities emphasise that custodial sentences are not mandatory for offence under Section 354 of the Penal Code, and a fine can serve the ends of justice, particularly in less aggravated cases. 380 S/N tzFXswZ1yk6XdcuL/qCOqg [34]. The respondent also highlights the loss of employment, pension rights, and emotional strain endured by the respondent as significant consequences due to his act, which he has already suffered. [35]. While this court accepts that these submissions carry some 385 merit, it finds no basis to interfere with the Magistrate’s discretion. Sentencing is a judicial function subject to broad discretion, and unless that discretion is wrongly exercised or results in a sentence so disproportionate as to amount to an error of law, appellate interference is not justified. As stated in 390 Bhandulananda Jayatilake v PP [1982] 1 MLJ 83; [1981] CLJU 139; [1981] 1 MLRA 304, variation of sentence is only warranted where it falls outside acceptable limits of discretion. This was aptly stated by His Lordship Raja Azlan Shah LP (as His Royal Highness then was) in the case of Bhandulananda 395 (supra): “Is the sentence harsh and manifestly excessive? We would paraphrase it in this way. As this is an appeal against the exercise by the learned judge of a discretion vested in him, is the sentence so far outside the normal 400 discretionary limits as to enable this court to say that its imposition must have involved an error of law of some description? I have had the occasion to say elsewhere, that the very concept of judicial discretion involves the right to choose between more than one possible course 405 of action upon which there is room for reasonable people to hold differing opinions as to which is to be S/N tzFXswZ1yk6XdcuL/qCOqg preferred. That is quite inevitable. Human nature being what it is, different judges applying the same principles at the same time in the same country to similar facts may 410 sometimes reach different conclusions (see Jamieson v Jamieson) [1952] AC 525. It is for that reason for some very conscientious judges have thought it their duty to visit particular crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to 415 view the same crimes with leniency. Therefore sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the 420 possibility or even the probability, that another court would have imposed a different sentence is not sufficient, per se, to warrant this court’s interference. For a discretionary judgment of this kind to be reversed by this court, it must be shown to our satisfaction that the 425 learned judge was embarking on some unauthorised or extraneous or irrelevant exercise of discretion.”. [36]. In the present case, the Magistrate properly considered all relevant factors, including the nature of the offence, the 430 appellant’s age, and the mitigating circumstances. The sentence of six months’ imprisonment and a fine of RM2,000 is well within the scope of Section 354 of the Penal Code. Therefore, the prosecution’s appeal for an enhanced sentence is dismissed. 435 S/N tzFXswZ1yk6XdcuL/qCOqg Conclusion [37]. The court finds no error of law or fact warranting appellate intervention. I find that the conviction is safe. Therefore, the appellant’s appeal against conviction and sentence is 440 dismissed, and the decision of the learned Magistrate is affirmed. The sentence of six months' imprisonment and a fine of RM2,000 is just, proportionate, and consistent with sentencing principles. The prosecution’s cross-appeal for an enhanced sentence is also dismissed. This court sees no 445 reason to interfere with the discretion exercised by the Magistrate. The sentence shall commence from the date of this court’s decision. The stay of sentence granted earlier will continue pending the appellant’s appeal to the Court of Appeal. Dated : 30 July 2025 450 [MOSES SUSAYAN] JUDGE HIGH COURT IN MALAYA AT IPOH, PERAK 455 460 S/N tzFXswZ1yk6XdcuL/qCOqg For case no. : AA-41S(A)-7-12/2023 465 For the Appellant : Amir Khusyairi bin Mohd Tanusi (together with Nur Faziera Aliah binti Ahmad) Advocates and Solicitors Messrs Amir Khusyairi & Associates 470 Teluk Intan, Perak For the Respondent : Khazrin Haffiz bin Khalil Deputy Public Prosecutor Prosecution Unit 475 Perak Legal Advisor Offices Ipoh, Perak For case no. : AA-41S(A)-8-12/2023 480 For the Appellant : Khazrin Haffiz bin Khalil Deputy Public Prosecutor Prosecution Unit Perak Legal Advisor Offices Ipoh, Perak 485 For the Respondent : Amir Khusyairi bin Mohd Tanusi (together with Nur Faziera Aliah binti Ahmad) Advocates and Solicitors 490 Messrs Amir Khusyairi & Associates Teluk Intan, Perak S/N tzFXswZ1yk6XdcuL/qCOqg (Notice: This Grounds of Decision is subject to official editorial 495 revision) Headnotes CRIMINAL PROCEDURE: Appeal – Appellate court – Duty to assess whether conviction is safe – No error of law or fact shown – Trial 500 court’s finding based on credible testimony – Conviction upheld CRIMINAL PROCEDURE: Defence – Bare denial – Appellant unable to offer plausible explanation or alternative version – Vague claims of accident contradicted by consistent testimony and eyewitness evidence 505 CRIMINAL PROCEDURE: Sentencing – Discretion of trial judge – Sentence not manifestly excessive or inadequate – Appellate court slow to interfere – Sentencing discretion properly exercised – Sentence of imprisonment and fine affirmed CRIMINAL PROCEDURE: Prosecution – Failure to call witness – 510 Prosecution not bound to call every witness – Evidence adduced sufficient to prove charge beyond reasonable doubt – No adverse inference drawn EVIDENCE: Corroboration – Sexual offence – Corroboration not mandatory where complainant’s evidence unusually convincing – 515 Evidence of independent eyewitness present – Complainant’s version credible and consistent EVIDENCE: Credibility of witness – Trial court's findings on credibility – Complainant’s testimony clear and consistent despite cross-examination – No reason for appellate interference 520 S/N tzFXswZ1yk6XdcuL/qCOqg