Nik Khaira Hafizi Bin Mat Zaid v Pendakwa Raya (WA-42H-19-07/2025)

The Appellant was charged together with Muhammad Nuraffiq Bin Jaafar, Nik Mohammad Rahimin Bin Mat Zaid and Mohd Zulhilmi 5 Bin Zainuddin at the Sessions Court. They were all sentenced to 17 years’ imprisonment except Mohd Zulhilmi Bin Zainuddin who received 14 years’ imprisonment sentence, and all of them had appealed to the High Court (where their cases were registered in different courts). 10

On 9.6.2026 this Court heard and dismissed his appeal. This Grounds of Judgment contains my reasons for the same. THE FACTS OF THE CASE 15 [4] The facts of the case were set out by the Sessions Court Judge (SCJ) in his rather “dramatic” and very lengthy grounds of judgment and I have reproduced the relevant paragraphs for ease of reference. As this is only an appeal against sentence, I have no wish to add anything more to the findings of the SCJ which he had 20 described in detail below: “[8] The trial of this case endured for four days. In the course of proceedings, four witnesses testified before this Court including the victim herself. Notably, the defence counsels for all of the accused persons elected not to cross-examine the victim. Instead, upon hearing the victim’s testimony, all four 25 accused persons abandoned their earlier stance and tendered their pleas of guilt.

I thereupon directed that the charge be read afresh to each of the accused. Upon its being duly read and explained, all of the accused persons 30 pleaded guilty to the charge. The prosecution thereafter tendered a written statement of facts (enclosure 70) which was duly read to all of the accused persons. Each of the accused agreed to the contents stated in enclosure 70 in 3 their entirety without reservation. To preclude even the faintest shadow upon the integrity of this Court’s record, I also have had due regard to the testimony given by the victim which stands as the most compelling evidence of the outrage perpetrated. 5 [10] It is pertinent to mention that B1, stood not as a stranger but as the victim’s very brother-in-law, being wedded to the victim’s own sister. In filial trust, the victim resided under the same roof with her sister, B1 and her nephews at No. 401, Block D13, Section 2, Wangsa Maju, 53300 Kuala Lumpur since 2018. Unfortunately, it was within this dwelling where she was entitled to 10 expect the highest degree of safety, that her honour was vilely betrayed by her own brother-in-law-B1. B1 had casted aside the sacred duty of kinship, joined his confederate in wickedness to grievously outrage the victim with unspeakable cruelty. 15 [11] The victim was in her room wrapped in slumber under the hush of night on 30.8.2023. The door to her room was unlocked as she was overtaken by sleep on that ill-fated night. The light in her room was switched off. She had no idea that her room would be desecrated and turned into a dreadful theatre of horror destined to haunt her for the rest of her days. 20

At about 3.30 am, in the depth of the even night, B1, B2, B3 and B4, like wolves upon their prey intruded the victim’s room. The victim testified that she was startled into a cruel awakening when a laundry bag (exhibit P33) was savagely thrust into her mouth by the accused persons. Two of the accused sat 25 on her left and right, holding her fast in hopeless panic while they brutally bound her hands with cellophane tape (exhibit P35) and overcame her feet.

Once overpowered, the accused removed the last vestige of the victim’s modesty by brazenly stripped her undergarment (exhibit P28). Enclosure 70 30 revealed that B1, B2 and B4 had in turn subjecting the helpless victim to rape.

As to B3, his role in this outrage is by no means minor. He lent his strength to restrain the victim with merciless indifference. At no moment did he show the faintest inclination to intervene or relieve the victim’s suffering. While 35 B1, B2, and B4 took turns raping the victim, B3 chose to indulge himself by watching with disgusting satisfaction rather than displaying the slightest bit of conscience. B3's behaviour was that of a willing participant rather than a passive bystander, taking perverse pleasure in the humiliation and pain endured by the victim. 40

The victim testified that she remained conscious throughout and painfully aware of the carnal violation inflicted upon her by B1, B2 and B4. In a desperate bid for help, she even endeavoured to kick the window in the hope 4 of summoning aid. Sadly, her efforts were cruelly frustrated as she laid supine, her legs cruelly forced to bend apart and her hands mercilessly bound. The victim could not scream as her mouth was stuffed with laundry bag. She further recounted that her breasts were fondled by the accused persons. B1, B2 and B4 had prolonged their ravishment for no less than ten minutes each. In effect, 5 she was compelled to endure relentless cruelty, degradation, and horror for no less than half an hour.

The victim’s recollection of the identity of all the accused persons was so vivid and unwavering. She stated that on that ill-fated night, the door to her 10 room stood ajar, permitting a shaft of light to filter within by which she could clearly see the faces of those who ravished her. The victim explained that the faces of B1, B2, B3 and B4 were wholly exposed to her sight. Thus, leaving her in no doubt as to their identity. 15 [17] Despite the unspeakable ordeal and with an undiminished fortitude, the victim was able to positively identify each of the accused when they were produced before this Court during trial, as the very men who had so cruelly raped her. She further demonstrated by the use of dolls furnished by this Court, the manner in which B1, B2, and B4 perpetrated their outrage upon her. 20

All of the accused persons abandoned the victim after they gratified their vile lusts upon her. Leaving the victim dishonoured and in anguish. In the wake of that severe trauma, she stumbled forth from her room clad only in a t-shirt whilst her lower parts were exposed and her hands still cruelly bound with 25 exhibit P35. In her desperation, she called for help by calling 999 where she spoke to SP2, Sargeant Ismaddi bin Ibrahim. …

The victim bore visible bruises on both arms, her lips and mouth were 30 found swollen having been abraded by the coarse zip of Exhibit P33 which had been forced into her mouth. The injuries sustained are plainly depicted in the photographs tendered as Exhibit P37(a–e). The Medical Examination Report prepared by Dr. Tan Wei Le of the Emergency Department, Kuala Lumpur Hospital (Exhibit P44) further confirmed these findings. In addition, the full 35 Medical Report furnished by Dr. Wu Pey Ye of the Obstetrics and Gynaecology Department, Tunku Azizah Hospital, Kuala Lumpur (Exhibit P44), revealed the presence of old hymenal tears at the 11 o’clock and 2 o’clock positions and, most grievously, a fresh hymenal tear at the 7 o’clock position. 40 [24] The DNA report (Exhibit P46) furnishes incontrovertible scientific confirmation of the complicity of B1, B2, and B4 in this abhorrent outrage. Semen stains bearing their respective DNA profiles were detected upon the victim’s undergarment (P28), thereby fortifying beyond question their 5 participation in this cruelty. The DNA profiling revealed the following conclusions: i) DNA profile of B1 and B2 were the contributors to the spermatozoa found on the cotton swab F24, F25 and F28 (refer page 4 & 5 exhibit P46); ii) DNA profile extracted from semen stain at clothe F4 (refer page 6 & 7 5 exhibit P46) and F20 (a watch) matched the DNA of B4; iii) DNA profile on F7(a) (the victim’s undergarment) and bed sheet (exhibit P53) found DNA profile (semen cell extract) of three persons namely B1, B2 and B4 (refer page 15 exhibit P46).”. 10

For the record, B4 was the Appellant in the present appeal. His DNA profile had been positively identified in the forensics chemical analysis done; he was one of the 3 persons who had participated in the crime of raping the victim. The fourth person (B3) participated in 15 the gang rape by facilitating the crime when he held the victim to enable the others to rape her. It was pertinent to note that B1, the first accused in the trial, was the victim’s own brother-in-law. The facts showed that B1 had instructed his son, one of the prosecution witnesses, to leave the house door unlocked under the pretext that 20 he was stranded in the rain.

The crux of the appeal against sentence was that the SCJ had not 25 exercised his discretion to impose a lenient sentence upon the Appellant despite him pleading guilty to the original charge after the trial had gone on for 4 days and the victim had not been cross-examined yet. But the SCJ instead harped on the fact that the case had been called up 17 times before the Appellant (and the other 30 accused) changed his plea. It was contended that the long delays were due to preparation of and/or incomplete documents. Additionally, the Appellant had been in remand for more than a year 6 since 8.9.2023 and was on 20.6.2024 given a DNAA order. He was re-arrested on 21.6.2024, then charged again on 24.6.2024. He was unable to post bail and had remained in custody ever since then, for a total of 1 year and 11 months before being sentenced to 17 years imprisonment on 16.7.2025. 5

The Appellant complained that the SCJ disregarded the established principles of sentencing by not giving him a discount after he had pleaded guilty to the charge and failed to take into consideration that he was a first offender. Further, public interest also required that an 10 offender be given a chance to turn over a new leaf, that the main principle of sentencing was rehabilitative and not merely punitive. It was also contended that the SCJ had misconstrued the sentencing trend in rape cases that were referred to as they constituted sentences imposed after a full trial (defence called), without a proper 15 evaluation of the facts of this case where the accused persons had all pleaded guilty mid-way during the prosecution stage. Therefore, the Appellant’s counsel urged the Court to reduce the sentence of 17 years imprisonment which he submitted was manifestly excessive given the facts of the case. 20

The DPP submitted that a sentence of between 17-20 years was suitable if it had been a full trial but left it to the Court to determine an appropriate sentence to be meted out to the Appellant. 25 EVALUATION AND FINDINGS OF THE COURT [9] The SCJ in his grounds of judgment stated: “[34] The sentences imposed upon all of the accused persons by this Court are founded upon interest on the following justifications: 30 7 i) Interest of the public; ii) Plea of guilt; iii) Character and antecedent; iv) Severity of the offence-proportionate sentence; v) Court’s approach in dealing with sexual related offence; 5 vi) Period taken to make plea of guilt; vii) vii) Compunction and absence of previous record; and viii) Aggravating factors submitted by the prosecution. … 10

The counsel for B4 told this Court that B4 is the youngest of this company of criminals. He is thirty years of age. He is married. He has twin children aged seven and another child of three years. 15 [51] I accept that these personal circumstances have been earnestly placed before this Court. They may draw a measure of human sympathy in a general context. Nonetheless, in my considered judgment, such matters pale into insignificance when weighed against the enormity of the outrage these men perpetrated upon their victim in this case. 20

If all of the accused persons were truly mindful of their impoverished families and the children dependent upon them, they ought to have thought long and hard before embarking upon the path of violent crime against another. By their grievous misconduct, they have betrayed not only their victim but also their 25 own families, whose welfare they invoke in mitigation even as their actions have plunged them into further misery.

This Court cannot suffer such pleas to dilute the gravity of punishment. This Court remains wholly unfazed by the counsels’ submission on the accused 30 persons’ antecedent. In this regard, I adopt the principle enunciated by Abdul Rahman Sebli J (as he then was) in PP v Shahrul Azuwan Adanan & Anor [2013] 2 CLJ 686. In this case, His Lordship had this to say:

The sentencing court must only consider circumstances that 35 mitigate the crime and not those that are personal to the offender and unconnected to the crime such as hardship to the offender and his family if he is sent to prison. These are matters that the offender should have thought of before committing the offence. If he was brave enough to tempt fate and got caught he must be brave enough to face the natural 40 and probable consequences of his act. But if for any valid reason there is a need to temper justice with mercy a proper balance has to be struck between sympathy for the offender and the pain and suffering that he 8 had inflicted on his victim or the damage that this criminal activity had done to the society.”.

It is trite law that an appellate court would be slow to interfere or 5 disturb a sentence passed by a lower court unless it is manifestly wrong in the sense of being illegal or unsuitable to the proven facts and circumstances: PP v Mohamed Nor & Ors [ 1985] 2 MLJ 200. In this case, the imprisonment of 17 years imposed by the SCJ was in my view appropriate and suitable to the facts and circumstances 10 of the case and therefore, I did not disturb the sentence meted out.

It is trite also that no mitigation is to be thrown aside lightly. However, the Court must have regard to the public interest as well and balance it against the interest of the Appellant. In the case of 15 Mohamed Jusoh bin Abdullah and Anor. v Public Prosecutor [1947] MLJ 130, Willan CJ stated: "In our view no sentence can be assessed by a simple mathematical formula. Many factors must be taken into account according to the circumstances of each individual case. In that respect we would draw attention to the matters 20 which should be taken into account in fixing punishments as set out in Halsbury's Laws of England (Hailsham Edition) volume 9, para 365: 'The Court, in fixing the punishment for any particular crime, will take into consideration the nature of the offence, the circumstances in which it was committed, the degree of 25 deliberation shown by the offender, the provocation which he has received, if the crime is one of violence, the antecedents of the prisoner up to the time of sentence, his age and character.'" [Emphasis added] 30 [12] In the case of Letitia Bosman v Public Prosecutor and other appeals (No 1) [2020] 5 MLJ 277 which stated the following: “[125] In passing sentence, the court takes into consideration the mitigating and aggravating factors in order to ensure that the sentence is in accordance with the law. Passing a sentence 35 9 according to law means the sentence imposed must not only be within the ambit of the sentence period stipulated but also assessed and passed according to established judicial principles (see Jafa bin Daud at p 316 of the judgment of Mohamed Azmi J).” [Emphasis added] 5

Despite the plea of guilty before the trial completed its full course, this Court opined that the aggravating factor in this case was the fact that one of the perpetrators was the victim’s own brother-in-law and he had facilitated the Appellant and other offenders to commit 10 the crime of gang rape by allowing them into his home in the middle of the night when she was sleeping; they then mercilessly held her and took turns to rape her. This was a gang-rape offence, a stand-alone crime in the Penal Code where the punishment provided for was a minimum of ten years up to 30 years imprisonment. It is by 15 no means a less serious offence by virtue of the fact that there is no whipping in the provision of s.375B. But the range of sentence that may be imposed above shows that it is in the category of an aggravated rape offence where the minimum sentence is 10 years up until life imprisonment. The section provides:

Whoever commits gang rape shall be punished with imprisonment for a term of not less than ten years and not more than thirty years. Explanation — Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be 25 deemed to have committed gang rape within the meaning of this section. [14] Although it was urged upon this Court to impose a lesser sentence upon the Appellant for pleading guilty, I was mindful of the explanation provision above and this was exactly admitted to by the 30 Appellant in the facts of the case. In my view, the DNA profiles of the accused persons extracted from the victim was the crucial factor in making them change their plea to one of guilt. [15] I also refer to the case of Mohamed Abdullah Ang Swee Kang v PP [1988] 1 MLJ 167 where the Supreme Court held: 5 “In assessing the length of custodial sentence, the court must look at the overall picture in perspective by considering, firstly, the gravity of the type of offence committed; secondly, the facts in the commission of the offence; thirdly, the presence or absence of mitigating factors, and, fourthly, the sentences that have been imposed in the past for similar offences to determine 10 the trend of sentencing policy, if any. The fact that a sentence of imprisonment is imposed as a deterrence does not justify the sentencer in passing a sentence of greater length than what the facts of the offence warrant. The gravity of the type of offence involved must be considered in the light of the particular facts of the offence. As stated by James L.J. in R v Ladd & 15 Tristam [1975] Cr LR 50; Thomas Encyclopaedia of Current Sentencing Practice p 1058 : "We have to look at the overall picture of what is the right sentence for the total involvement, the total degree of criminality involved, and we have to keep the sentences in 20 perspective with the sentences that have been passed on other occasions for offences involving criminal activity of this kind, though of course varying in their gravity. Clearly a deterrent element has to be involved, but because the offences are very serious, it does not necessarily follow that on the 25 particular facts very long sentences are justified." A sentencer must give sufficient discount for all extenuating circumstances pertaining to the degree of culpability or criminality involved, which must necessarily vary from case to case apart from other mitigating factors. Unless there is a proper reason for withholding such credits, 30 failure to do so may result in the sentencer not exercising his or her discretion judicially in assessing the level of custodial sentence.”. [Emphasis added] [16] In the case of Bachik Abdul Rahman v PP [2004] 2 CLJ 572 35 Augustine Paul JCA (as he then was) stated: “One of the principles in sentencing is that a convicted person should be given a discount for pleading guilty. A reduction of about one third of the sentence that would otherwise have been imposed is normally given. This, however, is not a strict rule and the court may, in the exercise of its discretion, refuse to grant any discount. The severity of the offence or the existence of a previous 5 conviction may outweigh the mitigating effect of the guilty plea; so may the demands of public interest for a deterrent sentence as well as the absence of a good defence or of other mitigating factors. The guilty plea does not automatically entitle the convict to a lesser punishment. In the instant case, the sessions judge had considered all these factors before 10 deciding that the accused's plea of guilty could not operate as a mitigating factor. Hence, the High Court ought not to have interfered and reduced the sentence of imprisonment from 18 years to 15 years. Nevertheless, it was not necessary for the instant court to reinstate the sentence originally imposed by the sessions judge as it would not make a material difference to the 15 consecutive terms the accused would already have to serve.” [Emphasis added] [17] The Court in the case of Mohammed Abdullah Ang Swee Kang (supra) also stated: 20 “If there had not been a plea of guilty but a finding of guilt after trial, 20 years was the maximum term of imprisonment that could have been imposed. If 20 years would have been the term of imprisonment, then at the most, on account of the plea of guilty, the appellant could only be sentenced to a term of imprisonment of 13 - 15 years.”. 25 [18] If I had been the trial judge of this case at the court below, and the case had completed its course as a full trial, having found them guilty at the end of it, I would have handed out a sentence of between 25-28 years upon the accused persons. But as they had 30 pleaded guilty before the trial had ended, a sentence of between 15 to 18 years would be appropriate given the facts of the case and their antecedents as well as the horrendous trauma endured by the victim (paragraph 78 of the grounds of judgment). The fact that he was a first offender in my view did not entail a larger “discount” as 35 he was also a married man aged 28 years old at the time of the offence and with 3 young children to care for. He did not come across (to me) as an immature young offender who may not know the extent of seriousness of the crime. 5 [19] The SCJ had correctly applied the principle in Shahrul Azuwan Adanan’s Case (supra) that the sentencing court must only consider circumstances that mitigate the crime and not those that are personal to the offender and unconnected to the crime such as hardship to the offender and his family if he is sent to prison. 10 Borrowing the words of the learned High Court Judge in that case, if he was brave enough to tempt fate and got caught he must be brave enough to face the natural and probable consequences of his act. CONCLUSION 15 [20] The Court did not find any error of fact or law which justified appellate interference upon the findings, conviction and sentence by the Sessions Court. Accordingly, the Court affirmed the sentence of 17 years imprisonment imposed upon the Appellant. Appeal 20 dismissed. Dated on 26 July 2026 Sgd. 25 NOOR RUWENA BINTI MD. NURDIN Judge High Court of Malaya, Kuala Lumpur (Criminal Division) 30 Representations: For the Appellant: Mr. Nik Mohamed Ikhwan Bin Nik Mahamud 5 Messrs Nik Ikhwan & Co., Kuala Lumpur (for Yayasan Bantuan Guaman Kebangsaan). For the Respondent: DPP Faizal @ Amrin Bin Noor Hadi 10 Pejabat Timbalan Pendakwa Raya, Kuala Lumpur.