Khairulizam Bin Mustapa v Pendakwa Raya (JB-42JSKS-2-08/2025)

This is an appeal against the conviction and sentence imposed by the learned Sessions Court Judge upon the Appellant for an offence under section 376(3) of the Penal Code. The charge against the appellant reads as follows: - “BAHAWA KAMU PADA 08/08/2022, JAM LEBIH KURANG 07.00 PAGI DI RUMAH ALAMAT NO 9 JALAN GAYA 6 TAMAN GAYA 86200 SIMPANG RENGGAM, DI DALAM DAERAH KLUANG, DALAM NEGERI JOHOR, TELAH MEROGOL ANAK TIRI KAMU, NURUL FARISYAH BINTI MOHD HAFIZ, NO. KAD PENGENALAN 100120-01-0704 YANG MANA OLEH KERANA PERHUBUNGAN KAMU DENGANNYA ADALAH TIDAK DIBENARKAN DI BAWAH UNDANG-UNDANG (ATAU HUKUM AGAMA ATAU ADAT ATAU KEBIASAAN) UNTUK BERKAHWIN DENGANNYA, DAN DENGAN ITU KAMU TELAH MELAKUKAN SUATU KESALAHAN YANG BOLEH DIHUKUM DI BAWAH SEKSYEN 376(3) KANUN KESEKSAAN.”

The Appellant was sentenced to twenty (20) years’ imprisonment and ten (10) strokes of the rotan.

Having considered the Record of Appeal and the submissions of both parties, I set aside the conviction and sentence and ordered a retrial. I will now state the reasons for doing so.

Two unusual features are immediately apparent from the record.

First, the trial was heard by two different Sessions Court Judges. The first learned Judge heard the material prosecution witnesses, including the victim in this case. The second Judge heard the evidence of the investigation officer (SP5) and the defense case before proceeding to convict the appellant.

Secondly, there are no grounds of judgment available for the conviction since the Sessions Judge has retired. There are also no meaningful oral reasons recorded either at the close of the prosecution case or at the end of the defense case. The record merely shows a brief ruling that a prima facie case had been S/N EsvyaubP0EuyuOQazaGPXA established and later that the prosecution had proved its case beyond a reasonable doubt.

Section 308 of the Criminal Procedure Code imposes a mandatory duty upon the trial court to transmit to the appellate court the grounds of its decision. The importance of a reasoned judgment cannot be overstated.

In Johnbosco Chinedu Augustine v. PP [2016] MLRAU 28, the Court of Appeal held that the absence of grounds of judgment may occasion substantial prejudice to an accused person and may compromise his constitutional right to a fair appeal. However, there are also judicial decisions that recognize that an appellate court may still examine the record and determine whether the conviction is safe. (cases: Mohamad Deraman v. PP [2011] 3 CLJ 601 and Rengarajan Thangavelu v. PP [2015] 1 CLJ 993). It is pertinent to note that in both Mohamad Deraman (supra) and Rengarajan Thangavelu (supra), there existed sufficient indications in the notes of proceedings to enable the appellate court to discern the basis upon which the conviction had been reached.

In the present appeal, there is a complete absence of any reasoning.

In the present case, the court lacks the following pertinent information: - a) Why was the material witness (SP 2) accepted as a truthful witness by the trial Judge? b) Whether the trial Judge warned herself or himself on the danger of convicting on uncorroborated evidence. c) How the alleged inconsistencies were resolved. d) Why the defense was rejected.

The difficulty here is that the second learned Sessions Court Judge never saw or heard the evidence of the Complainant (SP 2), who was the central witness in the prosecution case.

The next question for the court is whether the Appellant should be acquitted outright.

The principles governing retrial are well settled. In the case of Tunde Apatira & Ors v. PP [2001] 1 CLJ 381, the Court of Appeal observed that a retrial may be ordered where: - a) The original trial was unsatisfactory; b) The interest of justice requires the matter to be reheard; c) There exists admissible evidence capable of supporting a conviction; and d) No unfair prejudice would be occasioned to the accused.

The defect lies not in the complete absence of evidence, but in the inability of this court to evaluate the correctness of the conviction because of the procedural deficiencies already identified. This is not a case where the prosecution’s evidence is so deficient as to justify an outright acquittal. S/N EsvyaubP0EuyuOQazaGPXA

For the reasons stated above, the interest of justice requires that the charge against the appellant be determined afresh after a full trial before another Sessions Court Judge. Dated 4th June 2026 t.t. KALYANA KUMAR A/L SOCKALINGAM JUDICIAL COMMISSIONER HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Appellant : Mandave Singh Gill Messrs K. Siladass & Partners For the Respondent : Siti Asmah binti Zainal Ariffin