Mohamad Imran Bin Mohamed v Pendakwa Raya (JA-42JSKS-5-12/2024)

The Appellant was convicted by the Kota Tinggi Sessions Court on 18.12.2024 for an offence under Section 376(1) of the Penal Code and sentenced to 12 years’ imprisonment and 12 strokes of the rotan. The amended charge against the Appellant is that sometime in early 2019, the Appellant raped the victim, SP2, then aged 14, at a house in Kampung Penyabong, Endau, Johor.

The Amended Charge reads as follows:- PERTUDUHAN PINDAAN: BAHAWA KAMU PADA SEKITAR AWAL TAHUN 2019, DI RUMAH NO. 3, JALAN RAWAI PENEMPATAN NELAYAN, S/N pO/PeImRzEuNMluf5gprg **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 KAMPUNG PENYABONG, ENDAU, DALAM DAERAH MERSING, DALAM NEGERI JOHOR DARUL TA’ZIM, TELAH MEROGOL NUR AINA MAZLEYANA BINTI ABDUL MUHAIMIN, NO. K/P: 051018-01-1278, DAN DENGAN ITU KAMU TELAH MELAKUKAN SUATU KESALAHAN YANG BOLEH DIHUKUM DI BAWAH SEKSYEN 376(1) KANUN KESEKSAAN.

Dissatisfied with the conviction and sentence imposed, the Appellant had, on 19.12.2024 filed a notice of appeal both against the conviction and sentence.

In early 2019, the victim, SP2, left her grandfather's house to look for work in Endau, Mersing. She was sent to be under the care of the Appellant’s mother, Makcik Nor (SD2). SP2 lived in Makcik Nor’s house and helped her at her food stall at the Endau market. While SP2 was living in the SD2's house, SP2 stayed in the room on the lower floor of the house.

On one occasion when SD2 was not at home, the Appellant pulled SP2 into the Appellant's room upstairs, then pushed SP2 onto the bed and locked the room door. SP2 was lying down while the Appellant was on top of SP2 in a straddling position.

Thereafter, the Appellant began to engage in sexual intercourse with SP2 by fondling both of SP2's breasts. Then, the Appellant opened SP2's pants and inserted his genitals into SP2's S/N pO/PeImRzEuNMluf5gprg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 genitals until he ejaculated on SP2's stomach. When penetration occurred, SP2 felt pain in her genitals. After the incident, the Appellant instructed SP2 to wash the traces of semen from her body.

Theereafer SP2 decided to leave the house. SP2 did not inform anyone about the incidents until her school counselor noticed SP2's poor academic performance. After meeting with the school counselor, SP2 recounted the incident that occurred and was advised to file a police report. Then SP2 immediately filed a police report.

On 08.10.2020, SP2 was sent to Tengku Ampuan Rahimah Hospital, Klang for an examination. The results of the medical examination confirmed that there were old tears on SP2's genitals at 2, 7, and 9 o'clock.

Under Section 316(b) of the Criminal Procedure Code, this Court may dismiss an appeal if there is no sufficient ground to interfere with the lower court’s decision.

At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal, or may - (a) in an appeal from an order of acquittal, reverse the order, and direct that further inquiry be made, or that the accused be retried, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a S/N pO/PeImRzEuNMluf5gprg conviction or in an appeal as to sentence - (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried; or (ii) alter the finding, maintaining the sentence, or with or without altering the finding reduce or enhance the sentence or alter the nature of the sentence; [10] It is often reiterated in established cases that appellate intervention is warranted only if the trial judge’s factual findings are plainly wrong or based on serious misdirection of law. [11] In Lai Kim Hon & Ors v PP [1981] 1 MLJ 84, the Federal Court held as follows:- “The principle of law governing appeals in criminal cases on questions of fact is well established, in that the Appeal Court will not interfere unless the balance of evidence is grossly against the conviction, especially upon a finding of a specific fact involving the evaluation of the evidence of a witness founded on the credibility of such witness. In the instant case, the learned trial judge very carefully analysed all the available evidence before him and made specific findings of fact founded upon that which he believed to be the truth. He also drew certain inferences from facts specifically found. In this respect, we may form our independent view, but we should only do so where the fact upon which the inference was drawn was either unwarranted or manifestly against the weight of evidence. That was not the case here…: S/N pO/PeImRzEuNMluf5gprg [12] Similarly, the Federal Court in Herchun Singh v PP [1969] 2 MLJ 209, held as follows:- “….This view of the trial Judge as to the credibility of the witness must be given proper weight and consideration. 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….” [13] Further, the Court of Appeal in the case of Mohd Johi bin Said & Anor v PP [2005] 5 MLJ 409 also decided that the court's duty that hears the appeal is not to decide whether the Trial Judge has made any errors in his decision but is to decide whether the conviction made by the Trial Judge is safe: “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 consider whether the conviction is right. The correct approach is therefore not whether the decision is wrong but whether the conviction is safe. See, Mohammad Husain v. Emperor AIR [1945] Nag 441; Zahari bin Yeop Baai v. PP [1977] 1 LNS 162; [1980] 1 MLJ 160. That question, on the present facts, must receive a negative response.” [14] The appellate court’s primary duty, as stated in the Court of Appeal case of Sam Ke Ting v PP [2023] 4 MLRA 363, is to determine whether the conviction is safe, not whether the trial S/N pO/PeImRzEuNMluf5gprg judge adopted the same appreciation of evidence as this Court might have. “(2) Dalam kes ini, Majistret bukan sahaja memahami, menghalusi dan mempertimbangkan semua keterangan saksi serta keterangan senyap, malah beliau juga menggunapakai prinsip undang-undang yang betul mengenai beban pembuktian atas pendakwaan semasa membuat penilaian maksima keterangan di akhir kes pendakwaan. Kesimpulan yang boleh dibuat ialah Hakim Pertama telah terkhilaf bila hanya memberi tumpuan kepada pemanduan perayu semata-mata tanpa mengambil kira kesemua fakta kes. Jika Hakim Pertama mengambil kira pengakuan pegawai penyiasat, SP46, bahawa situasi bahaya diwujudkan oleh kumpulan basikal lajak; bahawa basikal lajak telah menghalang laluan perayu dan kemalangan itu mustahil dapat dielakkan, sewajarnya, Hakim Pertama mendapati tidak ada kes prima facie dan tidak memerintahkan perayu membela diri. Seperti siang mengikuti malam, Hakim Pertama telah terkhilaf bila mengakaskan keputusan Majistret di akhir kes pendakwaan. Atas alasan ini juga, rayuan perayu harus dibenarkan. (perenggan-perenggan 48-50)

Walaupun kes kemalangan maut ini mendapat liputan media yang luas, setiap kes harus diputuskan mengikut lunas undang-undang. Untuk kes ini, sabitan terhadap perayu adalah tidak selamat kerana dibuat atas pertuduhan yang cacat, menyalahi undang-undang dan tidak sah. Selebihnya, kemalangan maut ini bukan berpunca daripada perayu. (perenggan 51)” S/N pO/PeImRzEuNMluf5gprg [15] Referring to the principle in Sahrul Mazlee bin Mohd Khalid v Public Prosecutor [2022] MLJU 14, it is argued that the Court of Appeal should be cautious and not easily interfere with the findings of the Trial Judge, considering the Trial Judge has the unique advantage of observing the witnesses' demeanour. [16] Hence, this Court is duty bound to adopt a similar approach herein. ISSUES AND ANALYSIS

(A) Misdirection in Evaluating a Prima Facie Case [17] The Appellant contends that the Sessions Court erred in finding a prima facie case. According to Balachandran v PP [2005] 2 MLJ 301, the trial judge was required to determine whether the prosecution’s evidence, if unrebutted, would warrant and justify a conviction. [18] Having perused the Appeal Records, this Court is of the view that the Sessions Court judge had carefully evaluated SP2’s (the victim) testimony and supporting medical evidence. The judge considered some of the inconsistencies as minor, and found her accounts of the incident credible. Importantly, the court did not assume guilt from mere allegation but assessed whether the elements of the offence, particularly penetration, were proved beyond reasonable doubt. S/N pO/PeImRzEuNMluf5gprg Evidence of the victim SP2 S: Selepas dia tolak apa yang berlaku? J: Dia start buat rogol. S: Macam mana dia buat, dia start? J: Dia masukkan kemaluan dia dalam saya punya kemaluan. S: Dia start terus masukkan kemaluan? J: Dia sudah raba-raba saya semua, dia tolak saya atas katil. S: Jadi masa Imran masukkan kemaluan ke dalam kemaluan Aina itu dia masukkan cara macam mana? J: Cara paksa. S: Maksudnya cara masukkan terus macam itu? J: Cara paksalah. S: Maksudnya cara dia masukkan itu ada keluar masuk keluar masuk? J: Ada, dia pancutkan dekat perut. Dia sudah buat itu, selepas itu dia pancutkan dekat perut. S: Aina rasa kemaluan dia ada masuk? J: Rasa. S: Rasa apa pada masa itu? J: Sakit. S: Berapa lama masa dia buat itu? J: Sekejap sahaja. [19] The medical report (Exh. P1) indicated old hymenal tears at 2, 7 and 9 o’clock. Although the examining doctor (Dr Chern Soo Fern) was not produced as a witness, another government medical officer (SP1 Dr Tengku Nur Amirah) prepared the report based on S/N pO/PeImRzEuNMluf5gprg Dr Chern’s examination records. The report, together with SP2’s testimony, constituted sufficient corroboration. In the cross-examination of SP2, the Defence also did not put forward any questions to SP2 as to whether SP2 had previous experience of sexual intercourse or had engaged in rigorous activities which could have occasioned the hymenal tear. [20] It is trite that the failure to cross-examine can amount to accepting the statement under certain circumstances. See the Court of Appeal case of Khee Thuan Giap v. PP [2019] 1 LNS 568 at para 35: "[35] The celebrated case of Wong Swee Chin v. PP (supra) made it clear that there is a 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. That is about all, only a general rule. It follows through that a mere failure to cross-examine as such does not necessarily mean that it must be taken as being accepted. Equally, there are circumstances where failure to cross-examine does not necessarily mean that adverse inferences must be drawn as a matter of course. Rather, the proper approach is that the court must necessarily undertake a careful evaluation of the totality of the evidence in order to determine the cogency and weight of such testimony." [21] In Muhammad Kazwani v PP [2016] MLJU 856, the absence of direct medical correlation may weaken, but does not nullify it if credible oral evidence exists. Here, SP2’s evidence S/N pO/PeImRzEuNMluf5gprg remained firm and was convincing. Accordingly, no error arose in the prima facie ruling.

(B) Failure to call the examining doctor [22] The Appellant argued that failure to call Dr Chern Soo Fern, the specialist doctor who examined SP2 upon admission, attracted an adverse inference. In See Kek Chuan v PP [2013] 6 MLJ 885 it was held that adverse inference applies only where the prosecution withholds material evidence favourable to the defence. [23] Here, SP1 verified Exhibit P1 as a government hospital record prepared in the course of official duty. The medical report was marked as “P” without any objections. [24] The prosecution had even offered Dr Chern as a witness to the Defence after closing its case. The Defence had every opportunity to subpoena Dr Chern and put her through rigorous questioning. However, for reasons best known to it, the Defence had failed to do so at its own choice. That defeats any suggestion of adverse inference for suppression of evidence. Hence, the chain of proof remained unaffected and intact. [25] In Dato Mokhtar Hashim v PP [1983] 2 MLJ 232 it was held that entries made by public officers in the discharge of their duty in medical records are admissible under Sections 35 and 74 of the Evidence Act 1950: S/N pO/PeImRzEuNMluf5gprg “When it is the duty of a public officer to make some entries in any public or other official book it is admissible in evidence to prove the truth of the facts entered as well as the fact that the entries were made by him although their authenticity be not confirmed by the usual test of truth, namely, the swearing and cross-examination of the person who prepared them” [26] This Court also agrees with the reasoning in Toh Kong Joo v Penguasa Perubatan HSA [1990] 2 MLJ 235 that medical officers are public officers and their reports are public documents. “The medical report in question is a public document. Section 74 of the Evidence Act 1950 provides that public documents are documents forming the acts or records of the acts of ‘…public officers, legislative, judicial and executive, whether Federal or state’. A ‘public officer’ is defined in the Interpretation Act 1967 as a person lawfully holding, acting in or exercising the functions of a public office; and ‘public office’ is defined in the same Act as an office in any of the public services. The public services are enumerated in art 132(1) of the Federal Constitution and includes the general public service of the Federation. The medical service is not expressly provided in art 132, but members of the medical service form part of the general public service and come under the jurisdiction of the Public Services Commission.” “..Since medical officers are members of the public service, they are therefore public officers and the reports of their medical examinations are public documents.” S/N pO/PeImRzEuNMluf5gprg [27] As decided in Wong Swee Chin v PP [1981] 1 MLJ 212, expert evidence assists but does not bind the court. The weight accorded depends on context. Here, despite SP1’s reliance on clinical notes, her testimony reflected hospital findings contemporaneous with the examination; it was neither conjectural nor fabricated. There is thus no evidential flaw grave enough to render the conviction unsafe. Moreover, the medical evidence corroborates SP2’s primary evidence of being raped by the Appellant. [28] In the case of Zulkifli Ismail v. PP [1994] 4 CLJ 450, the Courts adopted a similar view and stressed the importance of medical evidence as corroborative evidence of rape: "In this connection practical guidance may be obtained from the case of Emperor v. Mahedeo Tatya A.R [29] 1942 Bombay 121 which establish that; where rape is denied by the Accused the sort of corroboration one looks for is medical evidence showing injury to the private parts of the complainant, injury to other part of her body which may have been occasioned in a struggle, seminal stains on her clothes or clothes of the Accused or the places where the offence is alleged to have been committed, and in all cases importance is attached to the subsequent conduct of the complainant. [29] SP1’s evidence was clear that there were tears in SP2’s hymen. S/N pO/PeImRzEuNMluf5gprg [30] The Appellant’s “armchair opinion” argument (based on Dato’ Seri Anwar Ibrahim v PP [2015] MLJU 34) is misplaced. SP1 did not render a speculative opinion. Her explanation was based on objective findings recorded contemporaneously. The medical report’s probative weight remains; it corroborates, though not in isolation, the complainant’s narrative. [31] This is compounded by the fact that the Defence, for reasons best known to it, did not subpoena Dr Chen when she was offered as a witness; if the Defence had serious doubts about the examination conducted by Dr Chen, which was then reduced to exhibit P1. This issue therefore fails.

(C) Non-availability of scientific and forensic evidence [32] The absence of semen, DNA or fresh injury does not automatically raise doubt. The incident occurred more than a year before the medical examination. Courts have repeatedly held that penetration may be proved by credible oral evidence alone: see PP v Mohamed Majid [1977] 1 MLJ 121; Mohd Yusof Rahmat v PP [2015] 4 MLJE 87. [33] SP2’s detailed testimony describing the act of penetration, fear, and subsequent silence provided direct evidence of the actus reus. There is no requirement for scientific proof where time lapse renders recovery impossible. [29] This court is of the opinion that the Appellant’s DNA is merely corroborative evidence. This court agrees with the finding S/N pO/PeImRzEuNMluf5gprg of the Sessions Court judge that there was sexual intercourse and that the Appellant ejaculated. The non-availability of the DNA report does not undermine the prosecution’s case. Moreover, it would be impossible to obtain the DNA after a prolonged lapse of time. In rape cases, it is not a legal requirement for the prosecution to prove the Defendant’s DNA. This court refers to the case of Yong Choo Kiong [2024] 3 MLJ 779, which touches on the issue of semen as follows: "[64] Bagi isu ini, mahkamah berpendapat dalam kes rogol ianya bukan suatu keperluan undang-undang untuk mengemukakan keterangan forensik yang menunjukkan adanya DNA atau air mani Tertuduh pada mangsa, pakaian atau di tempat kejadian untuk pembuktian elemen kemasukan kemaluan Tertuduh dalam kemaluan mangsa (rujuk kes Ahmad Faizal Ali Aulad Ali & Ors v. PP [2009] 9 CLJ 745). Bukti forensik seperti DNA hanya boleh dijadikan sebagai keterangan sokongan bagi kes-kes sebegini. Dalam menggarap persoalan yang sama, mahkamah ini ingin berkongsi pandangan dan bersetuju dalam keputusan kes Othman Ahmad lwn. PP [2008] 10 CLJ 356 di mana YA Zainal Azman Abdul Aziz menyuarakan pandangannya seperti berikut:

Ujian atau laporan DNA ke atas tertuduh bukanlah sesuatu yang mandatori dan ketiadaan ujian sedemikian tidaklah fatal kepada kes pendakwaan. Ini kerana pihak pendakwaan boleh mengemukakan keterangan-keterangan lain bagi mengasaskan kes mereka dan keterangan DNA hanyalah keterangan sokongan sahaja. Dalam kes ini, walaupun tiada keterangan DNA, fakta berlakunya rogol S/N pO/PeImRzEuNMluf5gprg boleh didapati daripada keterangan mangsa sendiri dan juga keterangan saksi-saksi lain. (perenggan 13 & 14)"

(D) Delay in Lodging Police Report [30] The police report was lodged in October 2020, approximately a year after the incident. Delay, as held in Zuki v PP [2010] 3 MLJ 102, may affect credibility unless satisfactorily explained. [31] Here, SP2 was 14 years old, under the control of the Appellant’s household, and, as testified by SD2, the Appellant’s mother, SP2 was always quarreling with the Appellant. SP2 testified that the Appellant threatened to kill her if she told anyone of the incident. The delay was explained when SP2 said she decided to lodge the police report after disclosing her experience to the school counsellor. It was not that SP2, at her own volition, related her experience to the counsellor but it was after the counsellor noticed her poor performance and behaviour in school. Furthermore, SP2 was also in fear and was traumatised. Such circumstances render the delay understandable and does not undermine her credibility. The Sessions Court accepted this explanation, and I see no reason to depart from it. S: Jadi macam mana cerita ini boleh tahu, boleh terbongkar ini? J: Sebab time itu saya sekolah. Selepas itu cikgu ada nampak saya punya prestasi pelajaran merosot. Selepas itu saya banyak tertekan. Saya banyak tertekan dan murung. S: Selepas itu? S/N pO/PeImRzEuNMluf5gprg J: Selepas itu kawan saya ada cakap berkaitan dengan ada dara atau tidak ada dara S: Terfikir macam mana? J: Terfikir, saya ada dara atau sudah tidak ada lagi. Time itu cikgu panggil saya. Cikgu kaunseling. Sebab cikgu tengok saya punya prestasi persekolahan saya semakin merosot. Selepas itu saya tidak bergaul sangat dengan orang S: Kalau tengok repot itu Aina buat repot pada 7/10/2020.Ada tempoh yang lama dari awal tahun 2019 dengan 7/10/2020. Soalan saya kena lambat buat repot ini? J: Sebab masa itu saya masih takut. Saya dalam trauma lagi. Saya tidak tahu hendak buat keputusan macam mana.

(E) Failure to Carry Out Identification Parade [32] This was not a case of stranger identification. SP2 personally knew the Appellant who lived in the same house. In PP v Joachim Selvanathan [2009] MLJU 748 it was held that the requirement of an identification parade arises primarily when the accused is unknown to the witness. [33] SP2’s dock identification of the Appellant merely confirmed a pre-existing familiarity, not recognition for the first time. Thus, no procedural unfairness occurred in the absence of an identification parade.

(F) The Defence’s Bare Denial S/N pO/PeImRzEuNMluf5gprg [34] The Appellant’s version that he was away from home was inconsistent between SD1 and SD2 and unsupported by any notice of alibi. The Sessions Court’s characterisation of the defence as “penafian kosong dan rekaan” is justified. [35] While Mohamad Radhi v PP [1991] 3 MLJ 169 affirms that the burden remains on the prosecution, the trial judge is entitled to reject a wholly improbable defence. Having examined both, I find that the trial court did not reverse the burden; rather, it considered whether the defence raised reasonable doubt and found none. That finding is sound.

(G) The Defence Witnesses [36] SD2 is the Appellant’s mother. She runs a food stall at the Endau market. She gave evidence that while SP2 was living with her and SP2 was helping her at her food stall and had always followed her around wherever she went. [37] The version of her daily routine is illogical and mind-boggling. She goes to her food stall at 6.00am until about 12.30pm when she closes shop and goes shopping for the next day’s business and only goes back home before maghrib time (around 6.00pm). Thereafter, she prepares the cooking items for the next day’s business and goes to bed around 2.00am. SD2’s account of her daily routine is just unbelievable. [38] SD2’s evidence is tailored nothing more than to help the Appellant’s case by saying that while the Appellant was hardly at S/N pO/PeImRzEuNMluf5gprg home, SP2 was always following her around and there was no opportunity for the Appellant to come into contact with SP2 and hence the rape incident never occurred. [39] SD2 also had in her evidence alluded that SP2 was in the past raped by some of her relatives in Kedah. However, the Defence did not put this forward during the cross examination of SP2 in order to exclude that the tear on SP2’s hymen was caused by the Appellant’s penetration. The failure to do so is glaring. [40] Further, SD2 also did not request SP2 to lodge a police report of the alleged rape incidents in Kedah despite SP2 being an underaged girl under her care. [41] Meanwhile, SD3 had cared for SP2 before she was sent to be cared for by SD2. SD3 accounts SP2 as a wild child. SD3 recalled that SP2 once went berserk and screamed outside the house that she could not live without Imran (the Appellant), which seems to suggest that SP2 was in love or was infatuated with the Appellant. However, this testimony is directly in contrast with SD2’s evidence that both SP2 and the Appellant were always quarreling like cats and dogs. [42] Evidence from both SD2 and SD3 was of little help to the Appellant’s own evidence, which was largely bare denials compared with the compelling evidence of SP2. S/N pO/PeImRzEuNMluf5gprg

(H) Decision of This Court [43] In PP v Mohamad Malek Ridhzuan bin Che Hassan [2013] MLJU 762, Dato Haji Mohd Zawawi bin Salleh JCA had said the following: “[20] Walaupun tidak terdapat peruntukan undang-undang di Malaysia yang mengkehendaki bahawa keterangan pengadu dalam kes-kes seksual memerlukan terangan sokongan, namun adalah menjadi amalan Mahkamah untuk melihat keterangan demikian. Amalan ini telah dijelaskan dalam kes Din v P.P [1964] MLJ 30 seperti berikut: "But the desirability for corroboration of the evidence of the prosecutrix in a rape case (which in any event has not yet crystallized into something approaching a rule of law and which is still a rule of practice and of prudence) springs not from the nature of the witness but from the nature of the offence. Never has it been suggested that the evidence of a woman as such invariably calls for corroboration. If a woman says her handbag has been snatched and if she is believed there can be no question of a conviction on such evidence being open to attack for want of corroboration. If, however, she complains of having been raped then both prudence and practice demand that evidence should be corroborated." [22] Walau apa pun jua, pada pandangan kami, sekiranya keterangan pengadu adalah "unusually convincing", sabitan dalam kes-kes seksual boleh dibuat tanpa keterangan sokongan. Kami bersetuju dengan proposisi undang yang dinyatakan di S/N pO/PeImRzEuNMluf5gprg dalam kes Kwan Peng Hong v P.P [2000] 4 SLR 96 (Mahkamah Tinggi), apabila Yong Pung How CJ berkata di muka surat 104: "But I also took great care to make clear that it is dangerous to convict on the words of the complainant alone unless her evidence is unusually compelling or convincing (Tang Kin Seng v PP [197] 1 SLR 46 at 58, Teo Keng Pong v PP [1996] 3 SLR 32( at 340 and Soh Yang Tick v PP [1998] 2 SLR 42 at 50). In short, the court is to be extremely cautious is relying on the sole evidence of the complainant for a conviction. The phrase 'unusually compelling or convincing' simply means that the complainant's evidence was so convincing that the prosecution's case was proven beyond reasonable doubt, solely on the basis of that evidence.", [23] Nampaknya Mahkamah-Mahkamah di India juga telah mengambil pendekatan yang sama, iaitu sekiranya keterangan pengadu dalam kes-kes seksual adalah kredible, dan meyakinkan, ia adalah mencukupi untuk mensabitkan tertuduh tanpa keterangan sokongan.” [44] Having evaluated all the evidence and submissions from both parties, which includes the reply and the Appellant’s additional submissions filed pursuant to this Court’s direction, this Court finds that SP2’s evidence was unusually convincing on its own and therefore the conviction was safe and justified. There was no misdirection or non-direction by the learned Sessions Court Judge. S/N pO/PeImRzEuNMluf5gprg [45] The prosecution had successfully proved the charge against the Appellant beyond reasonable doubt within the meaning of Section 376(1) Penal Code. [46] The findings on the credibility of SP2, the weight of the medical corroboration, and the rejection of the defence were properly reasoned. This Court finds that the conviction is safe and that there is no miscarriage of justice.

(I) The Sentence [47] Section 376(1) prescribes imprisonment up to 20 years and whipping. The trial judge imposed 12 years’ imprisonment and 12 strokes of rotan after a full trial. It is trite that appellate interference arises only if a sentence is “manifestly excessive” or founded on a wrong principle: Bhandulananda Jayatilake v PP[1982] 1 MLJ 83; Public Prosecutor v Loo Choon Fatt [1976] 2 MLJ 256. [48] Cases cited by the prosecution (Ahmad Shahirul Ali [2025] CLJU 165 and Mohammad Hafiz Jeral [2023] CLJU 1576) show comparable terms of 11–14 years. [49] This court had also made a comparison of sentencing in rape cases as follows: Case Imprisonment Whipping Bachik Abdul Rahman v PP [2004] 2 CLJ 572 15 years 12 strokes PP v Muhammad Iskandar Ismail [2016] CLJU 664 11 years 1 stroke S/N pO/PeImRzEuNMluf5gprg PP v Jasli bin Amir Salleh [2011] 8 MLJ 426 14 years 8 strokes Nelson bin Jupilin v PP [2023] MLJU 3156 12 years 5 strokes Faizal Anuar Mat Isa v PP [2023] 1 LNS 23 12 years 4 strokes PP v Mahahdir Siron [2022] 1 LNS 791 13 years 5 strokes Shahrul Hafizam Samsul Kamal v PP [2022] 1 LNS 2172 15 years 10 strokes Mohammad Hafiz Jeral v PP (2023) CLJU 1576 12 years 6 strokes PP v Ahmad Shahirul Ali (2025) CLJU 165 12 years 5 strokes [50] The sentence of imprisonment here fits prevailing trends, reflecting the aggravating factor that the victim was a minor and was living in the Appellant’s home. The punishment serves as a deterrent against a heinous crime committed against a minor. It is neither excruciating nor disproportionate. [51] However, this court finds that the sentence of 12 strokes of rotan is excessive based on the trend in the chart above. Therefore, pursuant to s. 316(b)(ii) of the Criminal Procedure Code, this court varies and reduces the 12 strokes of rotan to 8 strokes. [52] The prevalence of rape cases, especially against minors is very rampant and worrying. They ought to be protected from predators. It is therefore important for the court to impose a deterrent sentence and to send a strong message to the public that this court abhors crime of this nature. S/N pO/PeImRzEuNMluf5gprg

[53] Therefore, the Appellant’s appeal is allowed in part as follows: i) The conviction by the sessions court is affirmed; ii) The sentence of 12 years’ imprisonment is affirmed; iii) The sentence of 12 strokes of rotan is varied and reduced to 8 strokes of rotan. Dated : 04-05-2026 t.t. (ABDUL FAREED BIN ABDUL GAFOOR) Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Johor Bahru COUNSELS : PERAYU Donald a/l Selvam dan Azimah Liyana binti Akbar Batcha Selvam Shanmugam & Partners Peguambela & Peguamcara S/N pO/PeImRzEuNMluf5gprg RESPONDEN Sharimah Bt Mohd Lutfi Ismail Timbalan Pendakwa Raya Pejabat Penasihat Undang-Undang Negeri Johor Aras 2, Bangunan Dato’ Ja’afar Muhammad, Kota Iskandar 79100 Nusajaya, Johor S/N pO/PeImRzEuNMluf5gprg