Nik Syazwan Bin Ibrahim v Pendakwa Raya (AB-42JSKS-4-10/2022)

It shall be a defence to a charge against a person under this section if it is proved—

that he or she did not know that the person with whom he or she had 15 sexual intercourse was a person whose relationship to him or her was such that he or she was not permitted under the law, religion, custom or usage applicable to him or her to marry that person; or

that the act of sexual intercourse was done without his or her consent. 20 Explanation—A person who is under sixteen years of age, if female, or under thirteen years of age, if male shall be deemed to be incapable of giving consent. 25 [7] The prosecution called 9 witnesses to testify prove its case as follows: i. Sarjan Tellai a/I Subramaniam (SP1) - Photographer ii. Koperal Siti Normala binti Musa (SP2) – Sent exhibits to the Chemist Department 30 iii. Inspektor Nawawi bin Halias (SP3) – Arresting Officer S/N f4xVXpsPWUW1mja2mtV2bg iv. Inspektor Che Nur Dini binti Che Nyat (SP4) - Sent exhibits to the Chemist Department v. Dr Toh Ying Qi (SP5) – Medical Officer vi. Nur Aishah binti Mohamad Yunus (SP6) – Victim’s aunt vii. Victim (SP7) 5 viii. Dr. Rahimah binti Abd Rahim (SP8) - Gynaecologist ix. Insp Norhapizah binti Zulkapli (SP9) – Investigating Officer [8] From the Notes of Evidence, it was noted that the victim was a slow learner (“OKU lembam”). It was due to her disability that the defence 10 attacked her credibility and that she was an unreliable witness. The Court will deal with this issue later in this Grounds of Judgment. Nevertheless, by the time she gave evidence in court three years later, the victim was already 15 years old. The DPP asked her some questions to determine whether she understood the importance of telling the truth and nature of 15 an oath. Then the SCJ proceeded as per s. 133A of the Evidence Act 1950 to administer the oath when she was satisfied the victim understood the nature of an oath, although she took a long time to answer the questions posed by the DPP. 20 [9] The prosecution case was that the victim on 17.10.2020 lodged a police report (P11) complaining about being raped by her step father and also the Appellant who was her uncle known as “Pak Tam”. She stated in the report that her uncle was the first person who raped her and he had started raping her since she was 12 years old. On 12.10.2020 he raped 25 her again. She felt so stressed by their actions that she lodged the report so that the police would take action against them both. Pursuant to this report, on the same day the Appellant was arrested by SP3 around 11.50 am. SP3 lodged the arrest report as per P1. The victim was sent for a S/N f4xVXpsPWUW1mja2mtV2bg medical examination at the Hospital Gerik and was generally examined there by Dr. Mardhiyah Binti Mohd. Suhaimi (refer to Medical Report at P8). She was then sent to Hospital Taiping to be examined by a specialist, SP8, on 18.10.2020. The medical examination confirmed that her hymen had complete tears over 6 o’clock and partial tears over 3 and 9 o’clock 5 positions. Sampels were collected from the Appellant, the victim and a few other male relatives and all were sent for DNA profiling to the Jabatan Kimia Pulau Pinang. [10] The victim’s aunt told the Court that she was the first person that the 10 victim confided with about the rape committed by the Appellant on her person. The victim related to her this on 29.9.2020 but did not tell when it first happened. On that day SP6 asked the victim why she looked sad. The victim alleged that she had been raped many times by others but the Appellant was the first to rape her. He did it in his bedroom. SP6 consoled 15 the victim and said she would help her. Then SP6 told her sisters on 16.10.2020 about SP7’s complaints. They discussed first among themselves and then confronted the victim to verify the information. Once the victim confirmed it, they accompanied her to Balai Polis Kampung Lalang where the victim lodged a police report (P11). She said it was the 20 victim who told the police about the rape. THE DEFENCE CASE [11] The SCJ was satisfied that the prosecution has proved its case on a maximum evaluation of the evidence in respect of each ingredients of 25 the offences and called for the Appellant to enter his defence on both charges. The Appellant and the victim’s sister (SD2) were the defence witness. In her Grounds of Judgment, the learned SCJ had weighed the Appellant’s defence and found that he had not raised any reasonable S/N f4xVXpsPWUW1mja2mtV2bg doubt against the prosecution’s case. The SCJ did not accept his defence and considered it as a bare denial and an afterthought. As it was the defence’s allegation that the victim concocted stories to get back at him (revenge), the SCJ reasoned that he should have called other witnesses, such as his mother, to support his contention. 5 EVALUATION AND FINDINGS OF THE COURT [12] The Petition of Appeal can be summarised as the following issues raised by the Appellant at the hearing of the appeals:

credibility of the victim as a witness;

(ii) uncorroborated evidence of the prosecution witnesses, 10 particularly the victim’s testimony;

(iii) malicious motive of the prosecution witnesses;

(iv) defence was not properly considered by the SCJ; and

wrong burden of proof used. 15 [13] The ingredients of the offence under s.376B(1), namely: i. the Appellant had sexual intercourse with the victim; and ii. the Appellant was the the victim’s uncle such that their relationship was not permitted by law to marry; 20 [14] The victim (SP7) was 12 years old at the material time. The SCJ stated in the Grounds of Judgment that there was no difficulty to prove her age from the personal identification document of the victim submitted to the court for inspection as well as her birth certificate (P10). Therefore, the SCJ stated that the exemption under s. 376B(2) did not apply in this 25 situation. Moreover, from the evidence adduced by the prosecution S/N f4xVXpsPWUW1mja2mtV2bg witnesses, namely the victim’s aunt SP6, the victim and the Investigation Officers, it was clear that the Appellant was the uncle of the victim and being Muslims, they were forbidden to marry each other. He was married to SP7’s aunt, i.e. her mother’s younger sister. They had known each other for a long time and their houses were next to each other. 5 [15] The next ingredient to be proved was the sexual act of penetration by the Apellant to the victim. This was the more challenging part of the evidence to be obtained as the victim was a slow learner; her aunt as well as the Investigating Officer testified to this fact. The SCJ in her Grounds 10 of Judgment also touched on this issue as it was an important factor which went to the credibility of the victim. It was observed that the victim took a long time to understand and then answer the questions posed to her. Nevertheless, the SCJ found that the victim was able to answer those important questions pertinent to what she understood by the word “rape”, 15 who was the victim of the crime of rape and who was the perpetrator of the crime. She identified the perpetrator as Pak Tam, i.e. the Appellant. For ease of reference, her evidence is reproduced below as follows: “• Kes rogol adalah kemaluan lelaki masuk kemaluan saya. 20 • Saya yang kena rogol dalam kes ini. • Pak Tam yang merogol saya. • Pak Tam nama Nik Syazwan. • Pak Tam adalah pak menakan saya. • lsteri pak tam adalah mak tam. 25 • Mak tarn adalah kakak mak saya. • Pak Tam rogol saya pada bulan 12/2019. • Pak Tam rogol saya berpuluh kali jugak. • Kali pertama Pak Tam rogol saya adalah pada bulan 12 tahun 2019. • Masa kejadian tu Pak Tam panggil saya. Masa tu saya tengah main. 30 • Masa tu Pak Tam di rumah dia. • Saya main depan rumah opah. • Saya tidak ingat saya main dengan siapa. • Masa tu waktu pagi. S/N f4xVXpsPWUW1mja2mtV2bg • Rumah Pak Tam dengan rumah opah dekat saja. … • Pak Tam panggil nama saya. • Bila Pak Tam panggil, saya pun pergi pada dia. 5 • Saya ingatkan dia suruh saya pergi kedai tapi Pak Tam tarik saya masuk rumah. • Dalam rumah, Pak Tam ajak saya masuk bilik Pak Tam. • Saya tidak ingat siapa ada di rumah itu pada masa itu. • Dalam bilik hanya ada saya dan Pak Tam saja. • Pak Tam kekah (tanggal) baju dan seluar saya. 10 • Lepas tu Pak Tam bukak dia punya kain tuala. • Pak Tam kekah (tanggal) baju dan seluar saya. • Lepas tu Pak Tam bukak dia punya kain tuala. • Masa tu saya bogel. • Lepas tu Pak Tam tolak saya atas tilam. 15 • Lepas tu dia buat kaki saya bentuk M iaitu dia angkat naik kaki saya. • Lepas tu dia masukkan kemaluan dia ke dalam kemaluan saya. • Pak Tam ada atas tilam atas badan saya di tengah badan saya. • Dada dia dekat tengah badan saya dan kaki dia dekat bentuk M. • Dua dua tangan Pak Tam dekat tepi pinggang saya. 20 • Bila kemaluan masuk saya rasa keras dan panjang dekat dalam kemaluan saya. • Saya juga rasa sakit bila kemaluan masuk. • Selepas tu Pak Tam ada buat pergerakan keluar masuk dalam 2-3 kali. • Lepas tu Pak Tam buang air mani atas tilam. 25 • Lepas tu dia lap dengan kain tuala. • Lepas itu saya pakai baju dan seluar. • Pak Tam bagitahu saya jangan bagitahu orang dan kalau bagitahu dia akan marah dan dia nak pukul saya. • Lepas tu saya keluar pergi depan rumah opah. 30 • Saya tidak ada bagitahu sesiapa pada masa itu. • Masa Pak Tam buat semua tu pada saya, saya ada jerit tapi tidak ada sesiapa yang datang. • Saya ada nampak kemaluan Pak Tam. la bentuk panjang dan hujungnya bulat. • Saya nampak kemaluan Pak Tam semasa saya bangun sikit semasa dia nak 35 masukkan kemaluan dia. • Saya tak suka apa yang Pak Tam buat pada saya. • Saya rasa marah dan saya nak tolak dia. • Saya tolak dia dengan tangan saya dan pada masa itulah badan saya bangun sedikit. 40 • Bila saya jerit, Pak Tam tutup mulut saya. • Bilik yang berlaku kejadian rogol ini adalah bilik Pak Tam dan isteri dia. • Dalam bilik itu ada buka lampu dan ada tingkap. • Tingkap tertutup dan pintu dikunci oleh Pak Tam. S/N f4xVXpsPWUW1mja2mtV2bg • Pak Tam kunci bilik lepas bawa saya masuk bilik. • Lampu dalam bilik itu lampu jenis panjang macam dalam mahkamah. • Masa tu saya tak bagitahu sesiapa sebab saya takut Pak Tam marah. [16] The learned SCJ stated in paragraphs 25-28 of the Grounds of 5 Judgment her observation in regard to the victim’s demeanour and ability to answer the questions posed to her as follows: “[25] Mahkamah tidak nafikan agak sukar hendak mendapatkan jawapan dari SP7 atas setiap soalan yang ditanyakan. Tetapi yang pasti apa yang dijawab 10 oleh SP7 di dalam mahkamah adalah keluar dari mulutnya sendiri tanpa diajar atau dipengaruhi oleh sesiapa. Timbalan Pendakwaraya telah bertanyakan banyak soalan kepada SP7 dan ternyata SP7 dapat menceritakan kronologi kejadian dengan baik dan SP7 tetap kekal dengan jawapannya bahawa OKT adalah Pak Tam iaitu lelaki yang telah merogolnya. 15 [26] Peguambela di dalam hujahannya telah menimbulkan isu bahawa masalah lembam SP7 membuatkan dia menjadi seorang saksi yang tidak kredible, keterangannya tidak boleh dipercayai dan berkemungkinan mangsa mereka reka cerita. Peguambela juga menimbulkan anggapan bahawa mangsa sengaja 20 mereka reka cerita kerana berdendam dengan OKT yang telah memarahi dan menasihatinya. [27] Namun Mahkamah telah menilai secara maksima keterangan SP7, cara saksi menjawab soalan yang diutarakan dan juga demeanour saksi ini semasa 25 di mahkamah, dan mahkamah berpendapat SP7 dapat memberikan jawapan yang baik walaupun semua pihak perlu menunggu lama untuk mendengar dia bersuara. Mahkamah juga berpendapat sekiranya masalah lembam beliau menjadikan dia seorang saksi yang tidak kredible, sudah tentu keterangannya tidak akan konsisten dengan keterangan saksi yang Iain. 30 [28] Selain itu mangsa juga dapat menceritakan kronologi dan turutan kejadian dengan baik dan menyakinkan. Mahkamah berpendapat jika mangsa mengalami masalah mental yang serius sudah pasti mangsa tidak akan dapat bercerita langsung tentang kejadian tersebut. Tetapi semasa perbicaraan mahkamah 35 dapati mangsa dapat menceritakan bagaimana dan apa yang berlaku semasa perbuatan rogol tersebut berlaku contohnya seperti OKT membuka pakaian mangsa, OKT membuka tuala, OKT menolak mangsa ke atas katil dan OKT kangkangkan kaki mangsa berbentuk M. OKT juga dapat mengingati di mana kejadian berlaku dan apa yang dilakukannya selepas kejadian rogol tersebut. 40 … S/N f4xVXpsPWUW1mja2mtV2bg [32] Bagi kes ini, mahkamah telah berpeluang melihat sendiri demeanour dan keadaan fizikal SP7 semasa beliau hadir memberi keterangan di mahkamah sebanyak 2 kali. SP7 dari segi fizikal nampak seperti individu yang normal, beliau boleh menguruskan keperluan diri sendiri dengan baik tanpa bantuan sesiapa. 5 Oleh itu berbanding dengan keterangan kanak-kanak yang berumur 4 tahun di dalam kes Sulaiman Aswari yang mana keterangan kanak-kanak ini telah diterima walaupun diberikan tanpa mengangkat sumpah, maka bagi kes ini keterangan SP7 juga sepatutnya diterima oleh mahkamah ini. 10 [33] SP7 di dalam kes ini walaupun berumur 15 tahun, tetapi berkemungkinan tahap mentalnya adalah seperti kanak-kanak berumur 11 atau 12 tahun. Pada tahap umur begini, ia bukanlah satu umur kanak-kanak yang sangat mentah. Seperti mana yang mahkamah telah jelaskan sebelum ini, mahkamah telah meneliti demeanour SP7 semasa hadir memberi keterangan di mahkamah dan 15 mahkamah dapati keterangan beliau adalah menyakinkan, konsisten dan boleh dipercayai. Mahkamah tidak nampak percanggahan yang material di dalam keterangan SP7 yang boleh menyebabkan kes pendakwaan menjadi lemah. Malah semasa disoal balas oleh peguambela, SP7 tetap tegas dan tidak goyah dengan jawapannya bahawa OKT telah merogolnya.”. 20 [17] Comparing the evidence of the victim against the Appellant’s, the SCJ found the defence to be a bare denial, an afterthought and not credible. The following were the Appellant’s evidence as summarised by the SCJ in the Grounds of Judgment: 25 • Pada Disember 2019 OKT bekerja mendulang bijih timah dari pukul 7 pagi - 8 malam. • Isteri OKT tidak bekerja dan sentiasa berada di rumah bersama ibu OKT dan anak anak. • OKT telah menasihati mangsa sebab sebab mangsa datang ke rumah OKT 30 bukan nak belajar tetapi hendak bawa anak OKT keluar dengan lelaki. • Mangsa berkawan dengan lelaki umur 20an. • Mangsa marah dan dendam dengan OKT sebab menasihati dia. • Mangsa selalu tuduh orang rogol dia. • Ibu mangsa pun ada nasihatkan mangsa tapi dia tak mahu dengar dan tak 35 endahkan nasihat ibunya. • Mangsa selalu keluar dan tak balik rumah 2-3 hari. • Mangsa selalu tak balik rumah dan kalau dia balik dia akan bawa balik lelaki umur 20an. Dia selalu bermalam dengan lelaki di luar. S/N f4xVXpsPWUW1mja2mtV2bg • Mangsa berdendam dengan OKT sebab tahun 2019 dalam bulan 10, OKT nasihatkan dan dia tak dengar dan dia berdendam dengan OKT. Bila pegang tangan, dia kata orang tu rogol dia. • Mangsa suka bercakap dengan orang Iain dan dia suka tuduh orang rogol dia kalau dia tak berpuas hati dengan orang itu. 5 • OKT tahu mangsa tuduh ramai orang sebab dia suka berdendam. Kalau dia tak suka orang tu, dia akan tuduh. • Apa yang OKT tahu mangsa buas sejak dulu lagi. • Mangsa berdendam dengan OKT sebab OKT pernah halau mangsa sebab berkawan dengan anak OKT. OKT marah sebab kelakuan mangsa tidak elok. 10 • OKT menafikan merogol mangsa kerana OKT anggap mangsa sebagai anaknya sendiri. [18] The Court will consider the Appellant’s defence abovementioned later in this Grounds of Judgment. The Court would however, briefly address 15 an issue of importance i.e a speaking judgment. Upon perusal of the learned SCJ’s judgment, the Court viewed that it is a reasoned (speaking) judgment which had addressed the important issues in this case. The SCJ did not comment on the DNA evidence adduced by the prosecution, as the Chemist Report showed the presence of DNA profiles of other 20 unidentifiable male and female persons on the exhibits seized from the Appellant’s home such as a thin mattress (toto) suspected to have been used during the commission of the offence. Regardless, the SCJ had dealt with the medical report which showed that there were tears to the victim’s hymen and therefore, evidence of penetration. 25 [19] In Norisman Bin Rozali v PP [2015] 3 MLJ 125, the Court of Appeal held: “[12] The advantage of a speaking judgment needs no emphasis. The trial court is under a statutory obligation under s 308 of the Criminal Procedure 30 Code to transmit to the appellate court the grounds of decision which convey a reasoned judgment on the facts and the law, not merely the conclusion arrived at, per Ismail Khan J (as he then was) in Balasingham v Public Prosecutor [1959] 1 MLJ 193 (see also Jaafar bin Abu & Anor v Public Prosecutor [1988] 2 MLJ 363b). 35 S/N f4xVXpsPWUW1mja2mtV2bg … [17] It is said that a judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accept or reject the whole or any part of the evidence placed 5 before him. He must when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. That is judicial appreciation of evidence, (see Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97; [2003] 2 CLJ 19). A trier of facts who makes finding based purely upon the demeanour of a witness without undertaking a critical 10 analysis of that witness's evidence runs the risk of having his findings corrected on appeal. [18] It is incumbent on the part of the learned trial judge to indicate through his judgment his evaluation of the evidence. It is not sufficient to merely say 'I 15 accept' or 'I believe' the evidence of the witness. Reasons and analysis of the evidence must be shown (Murugiah v Public Prosecutor [1941] 1 MLJ 17b).”. [20] Coming back to the issues raised by the Appellant during the appeal, the Appellant submitted in the submissions against conviction that: 20 i. the victim gave 4 conflicting dates of the alleged incident (in the police report P11, the medical report, the original charge and the amended charge) and then the charge was amended to 4.9.2020 from 4.10.2020; ii. since there were allegedly 6 perpetrators, the Appellant 25 argued how was it possible to give an alibi notice in order to raise a defence of alibi; iii. there was a doubt on the identity of the perpetrators, in light of the many DNA profiles from the exhibits collected by the police; 30 iv. there was no corroboration of the victim’s evidence; v. the SCJ had imposed a higher burden than to raise a reasonable doubt on the Appellant and wrongly relied on s.103 of the Evidence Act 1950 without explaining why it was invoked; 35 S/N f4xVXpsPWUW1mja2mtV2bg vi. the SCJ was wrong to disbelieve the victim’s sister (SD2); vii. the SCJ was wrong to conclude that the defence was a denial and afterthought as it could not be both; and viii. the SCJ had seriously misdirected herself. 5 [21] In her reply the DPP submitted that: i. the victim was a credible witness because the court had tested whether she understood the duty to speak the truth and nature of oath; ii. the victim was able to answer consistently to the questions 10 posed to her when she gave evidence twice over a period of 3-5 months; iii. she had explained that when the first incident happened in 2019, the victim was 12 years old; iv. the house where the first incident happened was the 15 Appellant’s house which was demolished thereafter; v. the house in the photographs was the new house built to replace the old house; vi. the medical report P8 named 6 persons as told by the victim to the doctor who examined her; 20 vii. there were old hymenal tears; viii. the victim did not at first tell anyone about the rape as she was afraid the Appellant would be angry; ix. the family ties triggered her memory such that the charges were able to be framed against the Appellant as the 25 perpetrator; and x. she was not confused about the perpetrators of the crimes but she was only able to give more detailed information about the S/N f4xVXpsPWUW1mja2mtV2bg Appellant whereas she did not remember much sbout the others; xi. the victim was a credible witness because her evidence was consistent, otherwise if it was not true her evidence would also be inconsistent; and 5

Credibility of the victim as a witness [22] The learned SCJ had found the victim, SP7, her to be a child whom understood the duty to and was capable of telling the truth and understood its nature and she was asked to take the oath, despite her condition. 10 Section 118 of the Evidence Act 1950 states:

“Who may testify All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, 15 whether of body or mind, or any other cause of the same kind.”. [23] It is trite law under section 133A of the Evidence Act 1950 that when a child of tender years who is called as a witness does not in the opinion of the court understand the nature of an oath, he may give unsworn 20 evidence if the court is satisfied that he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth. But the accused shall not be convicted unless that evidence is corroborated by some material particular in support implicating the accused before he can be convicted. In the case of a sworn 25 child witness, the old rule of prudence applies, viz, the need to give an exhaustive warning on the dangers of convicting on such uncorroborated evidence (Augustine Paul, Evidence: Practice and Procedure Fourth Edition, Lexis Nexis at page 1148). The Court will discuss corroboration further below in this Grounds of Judgment. 30 S/N f4xVXpsPWUW1mja2mtV2bg [24] In paragraphs 25 – 33 of her Gorunds of Judgment, the SCJ had dealt with the victim’s evidence as outlined earlier. Moreover, the SCJ had the benefit of observing her demeanour as well as of the other witnesses and she found the prosecution witnesses were telling the truth. The High Court as an appellate court does not have the advantage of observing the 5 demeanour of witnesses and it is trite that an appellate court would be slow to disturb the findings of the subordinate court on the issue of credibility of witnesses unless the findings made was perverse. In the case of Dato Mokhtar Hashim & Anor v PP [1983] 2 MLJ 232, the Court held: 10 “(7) the credibility of a witness is primarily a matter for the trial judge. The functions of an Appellate Court, when dealing with a question of fact in which questions of credibility are involved are limited in their character and scope and in an appeal from a decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, an Appellate Court must 15 in order to reverse not merely entertain doubts whether the decision below is right but be convinced that it is wrong. In this case the learned trial judge accepted the evidence of Atun, the prosecution witness, whom he found to be a consistent witness unshaken by very severe cross-examination and the Appeal Court could find no reason to interfere with his assessment.”. 20 [25] In the case of Pie Bin Chin v PP [1985] 1 MLJ 234 it was held: “Forgetfulness and failure to recall exactly certain events, which did not seem to be important to the witness, do not necessarily shake his 25 credibility or render other parts of his story unworthy of belief. Various persons are endowed with varying powers of cognition, attentiveness and perception, so that it is not uncommon for two witnesses to a common event to describe it in slightly differing versions. 30 … I agree with the learned President’s findings on this not only because he, having seen and heard the witness is in a better position than I am to evaluate the credibility of the witnesses, but also because I accept that no witness of truth can account for the details of events which had transpired some 17 months previously with precision.” 35 [Emphasis added] S/N f4xVXpsPWUW1mja2mtV2bg [26] Following the principles cited above, and upon perusal of the findings made by the SCJ on the ability and credibility of SP7, this Court found that there was no merit on the first issue of the victim’s credibility. On another note, in regard to the complaint that the victim gave 4 conflicting dates, it is the Court’s finding that there was no miscarriage of 5 justice by amending the date and place in the charges because it is the prerogative of the prosecution under the CPC in the interest of justice and s.422 of the CPC is applicable therein.

(ii) Uncorroborated evidence of the prosecution witnesses, 10 particularly the victim’s testimony [27] Moving to the second issue, this Court agreed with the findings of the SCJ that there were ample corroboration of the victim’s complaint that it was the Appellant who had raped her (refer to evidence of SP5). The 15 victim's testimony was corroborated by medical evidence in the report. Now, medical reports would never state conclusively what was the object used to penetrate the victim. Nevertheless, SP7 had told the doctors who examined her about the rape, her aunties (refer to evidence of SP6) and the IO. There was consistency in her evidence and which is also regarded 20 as corroboration. Meanwhile, in the medical report, the history stated: “Complain of alleged sexual assault by 6 known perpetrators: Step father, uncle known as Pak Tam, Haikah (cousin), Naim (cousin), Saifullah (cousin), Amirul Asywad (cousin) since 2019.” 25 [28] Section 157 of the Evidence Act 1950 provides: “157. Former statements of witness may be proved fo corroborate later testimony as to same fact in order to corroborate the testimony of a witness, any former S/N f4xVXpsPWUW1mja2mtV2bg statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.” 5 [29] The learned SCJ stated that the victim’s testimony on the rape was corroborated by SP6’s evidence and by the doctor who prepared the medical report, SP5. She rationalised that SP5 was an independent witness who prepared the report from the information available to her in the documents pertaining to the medical examination of the victim. Lastly, 10 the corroboration in the form of former statements by the victim was found in the evidence of SP9, the Investigation Officer (refer to paragraph 44 – 47 of the SCJ’s Grounds of Judgment). This Court did not see any misdirection here as the SCJ had warned herself of the dangers of acting on the uncorroborated evidence of the victim but in fact found that there 15 were ample corroboration of her evidence in court. Therefore, there was also no merit on this issue raised by the Appellant.

(iii) Malicious motive of the victim [30] One of the Appellant’s submission was that these incidents could 20 not have happened. This was because the victim allegedly had a tendency to make up stories about her family members if she did not favour them. In regard to the issue of motive, it was implied by the Appellant that SP7 had a grudge against him because he did not like her befriending his child. Upon consideration of all the oral evidence in this case and SP9 25 (Investigation Officer)) and taking into account the demeanour of witnesses on both sides, the SCJ found that the Appellant did commit the offences charged against him. The SCJ had the benefit of observing the S/N f4xVXpsPWUW1mja2mtV2bg demeanour of the witnesses and she had explained her assessment of the veracity of each of the witness from both sides. [31] I have considered the SCJ’s evaluation of the victim and her testimony and I, too, did not find any evidence of malice or that she had a 5 motive to victimise him. Instead, I found from her evidence in the Records of Appeal, the victim spoke the truth about what happened to her. She was able to recall in detail the chronology of events, and described the sexual acts against her so explicitly (despite being a slow learner) that the only conclusion that the Court could make out of these facts was that she 10 was indeed a rape victim. She had undergone the horrible ordeal and was sad and depressed. Luckily her aunt suspected something was amiss with the victim and took the trouble to find out her problem; and the rest was history. Therefore, there was also no merit on this issue raised by the Appellant.

(iv) Defence was not properly considered by the SCJ [32] In the case of Mohamad Radhi B Yaakob v PP [1991] 3 MLJ 169 the Supreme Court held: 20 “It is a well-established principle of Malaysian criminal law that the general burden of proof lies throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence with which he is charged. There is no similar burden placed on the accused to prove his innocence. He is presumed innocent until proven guilty. To earn an 25 acquittal, his duty is merely to cast a reasonable doubt in the prosecution case. In the course of the prosecution case, the prosecution may of course rely on available statutory presumptions to prove one or more of the essential ingredients of the charge. When that occurs, the particular burden of proof as opposed to the general burden, shifts to the defence to 30 rebut such presumptions on the balance of probabilities which from the defence point of view is heavier than the burden of casting a reasonable doubt, but it is certainly lighter than the burden of the prosecution to prove S/N f4xVXpsPWUW1mja2mtV2bg beyond reasonable doubt. To earn an acquittal at the close of the case for the prosecution under s 173(f) or s 180 of the Criminal Procedure Code, the court must be satisfied that no case against the accused has been made out which if unrebutted would warrant his conviction (Munusamy v PP [1987] 1 MLJ 492). If defence is called, the duty of 5 the accused is only to cast a reasonable doubt in the prosecution case. He is not required to prove his innocence beyond reasonable doubt.”. [Emphasis added] 10 [33] Referring again to Mohamad Radhi B Yaakob (supra) the Supreme Court stated further: “In this connection, counsel for the appellant had referred to us the case of PP v Saimin & Ors [1971] 2 MLJ 16 where Sharma J held that the falsity 15 of the defence does not relieve the prosecution from proving the prosecution's case beyond reasonable doubt. We are of the view that whenever a criminal case is decided on the basis of the truth of the prosecution's case as against the falsity of the defence story, a trial judge must in accordance with the principle laid down 20 in Mat v PP [1963] MLJ 263 go one step further before convicting the accused by giving due consideration as to why the defence story, though could not be believed, did not raise a reasonable doubt in the prosecution case. Thus, even though a judge does not accept or believe the accused's explanation, the accused must not be 25 convicted until the court is satisfied for sufficient reason that such explanation does not cast a reasonable doubt in the prosecution case. To satisfy this test it is not so much the words used by the judge, but rather the actual application of the test to the facts of the case that matters. In this case, we found that the learned trial judge 30 offered practically no reason why the defence, notwithstanding its falsity and unconvincing nature, had failed to cast reasonable doubt in the prosecution case, other than to state by way of lip service the duty placed by the law on the defence to earn an acquittal. 35 [Emphasis added] [34] Reference is also made to the case of Davendar Singh a/I Sher Singh v Pendakwa Raya [2012] MLJU 321; [2012] 1 LNS 261, where Hon. Azahar Mohammed JCA (as he then was) stated the following: 40 S/N f4xVXpsPWUW1mja2mtV2bg “[9] Nonetheless, it would be open to us to upset the findings made by a trial judge if such a finding is not supported by evidence or the decision is against the weight of the evidence or there is no proper judicial evaluation of the evidence or there is misdirection in law or the trial court has fundamentally misdirected itself. In this regard, judicial appreciation 5 and evaluation of evidence is at the heart of the duty of the learned trial judge. It is the duty of the learned trial judge to undertake a positive evaluation of the evidence, which includes a careful analysis of the credibility and reliability of the witnesses for the prosecution (see Balachandran v Public Prosecutor [2005] 2 MU 301). It is also his duty to 10 consider the entire evidence presented before him, including the evidence which favours the defence. On what constitutes judicial appreciation of evidence, it is apt to bear in mind the following words of Gopal Sri Ram JCA (as he then was) in Lee Ing Chin v Gan Yook Chin [2003] 2 MU 97: 15 A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the 20 evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence 25 of a particular witness against the probabilities of the case. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness’ evidence runs the risk of having his findings corrected on appeal. It does not matter whether the issue for decision is one that arises in 30 a civil or criminal case: the approach to judicial appreciation of evidence is the same.” [Emphasis added] [35] Lastly, reference is made to the classic direction given to the courts 35 below in Mat v PP [1963] MLJ 263, when considering the defence raised by an accused: “ ...

If you do not accept or believe the accused's explanation S/N f4xVXpsPWUW1mja2mtV2bg and that explanation does not raise in your mind a reasonable doubt as to his guilt Convict.” [36] The SCJ dealt with the defence case by discussing it in paragraphs 48 – 62 of her Grounds of Judgment. She had considered the Appellant’s 5 testimony and tested it against the victim’s evidence. As outlined earlier in this Grounds, his defence of the victim’s implicit account of the sexual acts was that he did not commit the crime, hence it was a bare denial and he imputed that the victim was an immoral girl incapable of belief. At the trial, it was indicated earlier that the defence would be calling the 10 Appellant’s mother as a witness because she was always at home, implying that the rape incidents could not have happened. But she was not called to testify until the end. As the Investigation Officer never took his mother’s s.112 CPC statement, the SCJ reasoned that the Appellant never told the police about this alleged fact and therefore, it was just an 15 afterthought. SP9 was also not asked this in cross-examination. [37] Then the SCJ went on to discuss the evidence given by SD2. Generally, SD2 who was the elder sister of SP7 told the Court that she did not know about the alleged rape and only got to know about it after she 20 was called to the Balai Polis to have her statement recorded. In her testimony in court, she stated that after the incident, the victim told her that the Appellant never raped her and that the allegation was not true. SD2 also informed the Court that her sister was unwell and “fikirannya tidak stabil.”. The learned SCJ found her evidence to be an afterthought 25 because this was never told to SP9 and the solicitor for the Appellant despite this was an important piece of evidence, if it was true. That would have had the effect of the Appellant not being charged at all by the DPP. Moereover, the prosecution witnesses were never cross-examined about S/N f4xVXpsPWUW1mja2mtV2bg this alleged information, particularly the victim, when they were giving evidence at the prosecution stage. [38] The learned SCJ stated further that the victim was put up with her aunt and then at a Jabatan Kebajikan Masyarakat hostel after the report 5 was lodged because the Appellant’s house was just next door. Her step father had also been arrested for a similar complaint. From the evidence, it was determined that the victim never returned home after the medical examination in the hospital. Further, in cross-examination SD2 admitted that she was not close to the victim and did not anything about the alleged 10 rape. She also admitted that she would not bother to find out what went on with her sister. Impliedly this was because they were nor close even as sisters. [39] The SCJ found SD2’s evidence on the alleged conversation with SP7 15 to be suspect and could not be accepted wholesale as it was only raised at the defence stage. The Appellant was unable to produce any witness to prove that he was elsewhere at the time of the incidents. Instead, he accused the victim of being an immoral girl, vengeful and prone to lying if she did not like someone by accusing the person of raping her. The court 20 found that all these allegations against the victim were not proved and therefore were not credible of belief. [40] In the case of Masih Perviaz (W/Pakistan) v PP [2022] 4 MLJ 676, it is observed that the Court of Appeal confirmed the learned High Court 25 Judge’s findings on the defence in that case which was a bare denial, an afterthought and not credible. Before convicting the accused, the trial judge must give due consideration as to why the defence story, though could not be believed, did not raise a reasonable doubt in the prosecution S/N f4xVXpsPWUW1mja2mtV2bg case. Thus, even though a judge does not accept or believe the accused's explanation, the accused must not be convicted until the court is satisfied for sufficient reason that such explanation does not cast a reasonable doubt in the prosecution case. A perusal of the SCJ’s Grounds of Judgment would show that the learned SCJ did not just state by way of lip 5 service the duty placed by the law on the defence to earn an acquittal. The SCJ had analysed the defence case and stated why she did not believe the defence case, where she found that it was merely a bare denial, afterthought and not credible and had failed to cast a reasonable doubt in the prosecution case.

Wrong burden of proof used [41] Lastly, the Appellant took issue about the alleged wrong burden of proof being used by the SCJ to the detriment of the Appellant. This was because she had stated in the Grounds of Judgment that he failed to call 15 other witnesses to support his defence whereas the accused need only raise a reasonable doubt in this case. It was submitted further that the SCJ was looking at it from beyond a reasonable doubt standard that can only be found if the SCJ did not impose any burden and keep her mind clear that the defence did not bear any burden of proof. It was a serious 20 misdirection which caused miscarriage of justice [42] The burden of proof lies throughout on the prosecution to prove the case beyond reasonable doubt. In the recent case of Rosli Yusof v PP [2021] 7 CLJ 681 the Federal Court held: 25 “[45] It is trite law that it is not the duty of the appellant to prove his innocence or to call a particular witness to support his defence (see Tan Foo Su v. PP [1967] 1 LNS 179; [1967] 2 MLJ 19; and Sandra Margaret Birch v. PP [1977] 1 LNS 114; [1978] 1 MLJ 72). The law places upon the 30 S/N f4xVXpsPWUW1mja2mtV2bg prosecution the burden to prove guilt of the appellant beyond reasonable doubt and not on the appellant to prove his innocence. Well-entrenched in jurisprudence is the rule that the conviction of the appellant must rest not on the weakness of the defence but on the strength of the prosecution. This principle is the corner stone of our criminal law.” 5 [Emphasis added] [43] However, it is still the duty of the court to weigh all the evidence available before it. Proof beyond reasonable doubt does not mean proof 10 beyond the shadow of a doubt. Moreover, as stated in Mohd Radhi Bin Yaakob (supra), “whenever a criminal case is decided on the basis of the truth of the prosecution's case as against the falsity of the defence story, a trial judge must in accordance with the principle laid down in Mat v PP [1963] MLJ 263 go one step further before convicting the 15 accused by giving due consideration as to why the defence story, though could not be believed, did not raise a reasonable doubt in the prosecution case. Thus, even though a judge does not accept or believe the accused's explanation, the accused must not be convicted until the court is satisfied for sufficient reason that such explanation does not cast a reasonable 20 doubt in the prosecution case”. [44] In paragraph 60 of her Grounds of Judgment, the SCJ stated: “[60] Adalah diingatkan bahawa keterangan yang hendak dikemukakan di 25 mahkamah hendaklah satu keterangan yang boleh diterima akal dan adalah hasil dari keterangan bolehpercaya yang mampu menyebabkan kelompangan ke atas kes pendakwaan yang pada awalnya telah pun diterima sebagai satu prima facie kes oleh mahkamah yang mulia ini. Menimbulkan keterangan hanya semasa kes pembelaan menunjukkan bahawa ia satu keterangan yang 30 afterthought iaitu keterangan yang timbul secara tiba-tiba yang bertujuan untuk melepaskan dirinya saja dari pertuduhan.” S/N f4xVXpsPWUW1mja2mtV2bg [45] I found that the SCJ has done her level best to deal with all the evidence before her and had taken into consideration the relevant facts in finding there was a prima facie case to answer and, at the end of the defence case, she found that the prosecution had proved its case beyond reasonable doubt and convicted the Appellant on the said charge. The 5 defence case was wholly to impute bad character against the victim who was a slow learner, whom the SCJ had the opportunity to observe over a period of 2 days when she gave evidence in Court. It took a long time for the victim to answer the questions posed to her. Comparing with the allegations against the victim by the Appellant in his testimony, the SCJ 10 found his allegations were baseless. Hence, from the Notes of Evidence and Grounds of Judgment, it is unnecessary for this Court to disturb the conviction as the SCJ has not committed any error of law or in fact. The SCJ had the benefit of observing the demeanour of witnesses and made the right finding on material facts pertaining to the ingredients of the 15 offence. Therefore, the appeals against conviction were dismissed. SENTENCE [46] In the case of Mohamed Jusoh bin Abdullah and Anor. v Public Prosecutor [1947] MLJ 130, Willan CJ stated: 20 "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 which should be taken into account in fixing punishments as set out in Halsbury's Laws of England (Hailsham Edition) 25 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 deliberation shown by the offender, the provocation which he 30 has received, if the crime is one of violence, the antecedents of the prisoner up to the time of sentence, his age and character.'" S/N f4xVXpsPWUW1mja2mtV2bg [Emphasis added] [47] The Appellant’s counsel urged to reduce the sentence. The Appellant had 3 children, was the sole breadwinner and also supported his mother. The DPP submitted that the Court should not disturb the 5 sentence imposed by the SCJ. The Court must have regard to the public interest and the interest of the victim as she was an OKU lembam. The Appellant was a relative of the victim and he had taken advantage of her. His actions had scarred the victim emotionally for life. 10 [48] 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 according 15 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] 20 [49] In the case of Ganesan A/L Nachiappan & Ors v Public Prosecutor [2000] 3 MLJ 244 the court held: “(1) The power of sentencing given to a trial court is a discretionary one and in order for the appellate court to disturb the sentence imposed, the 25 court must be convinced that the trial judge had erred in applying the correct principles of sentencing or had embarked on some unauthorized or extraneous exercise of discretion. In the present case, the trial judge in his judgment had given due consideration, inter alia, to the plea of guilty, the ages of the appellants and the period they were remanded before 30 passing the sentence on them (see p 246B–C).”. [50] It is trite law that an appellate court would be slow to interfere or disturb a sentence passed by a lower court unless it is manifestly wrong S/N f4xVXpsPWUW1mja2mtV2bg in the sense of being illegal or unsuitable to the proved facts and circumstances: PP v Mohamed Nor & Ors [ 1985] 2 MLJ 200. In this case, the punishment imposed by the SCJ were suitable to the facts and circumstances of the case as well as the gravity of the offence. 5 [51] Premised on the above considerations, the Court did not see it fit to disturb the concurrent sentences of 12 years and 3 strokes of the rotan for each charge, police supervision of 2 years after release from prison and counselling while in prison. All sentences to remain. 10 CONCLUSION [52] The Court did not find any error of fact or law which justified appellate interference upon the findings, convictions and sentences of the Sessions Court. Accordingly, the Court affirmed the convictions and 15 sentences imposed upon the Appellant. Appeals against convictions and sentences dismissed. Dated 25 August 2023 20 Sgd. NOOR RUWENA BINTI MD. NURDIN 25 Judicial Commissioner High Court of Malaya, Taiping 30 S/N f4xVXpsPWUW1mja2mtV2bg Representations: For the Appellant : Mr. P. Ravee 5 Messrs P Ravee & Co. Taiping For the Respondent : DPP Sariza Binti Ismail Pejabat Timbalan Pendakwa Raya Negeri 10 Perak, Taiping S/N f4xVXpsPWUW1mja2mtV2bg