Pendakwa Raya v Ahnaf Afiq Bin Shairul Bazri (JB-42LB(A)-2-04/2025)

This is an appeal by the Deputy Public Prosecutor (Appellant) against the decision of the Sessions Court to acquit and discharge the accused at the end of the defence case. For convenience, the parties will be referred as they were in the Court below. The accused was charged at the Sessions Court Muar for an offence under s. 14(a) of the Sexual Offences Against Children Act 2017 (“SOACA 2017”), and read together with s. 16 of the same Act. The charge reads as follows: - “Bahawa kamu pada 03/10/2019 antara jam 10.20 pagi hingga 11.20 pagi bertempat di perpustakaan Sekolah Kebangsaan Kota Raja, 84500 Panchor, dalam Daerah Muar, di dalam Negeri Johor telah menyentuh kanak-kanak iaitu Alya Batrisya binti Mohamad Zaharuddin (No. K/P: 110621-01-2010) pada bahagian kepala, badan dan punggungnya bagi maksud seksual. Oleh yang demikian, kamu telah melakukan kesalahan amang seksual fizikal di bawah seksyen 14(a) Akta Kesalahan-Kesalahan Seksual Terhadap Kanak-Kanak 2017 yang boleh dihukum di bawah seksyen yang sama dan dibaca bersama seksyen 16(1) Akta yang sama”.

The accused did not plead guilty, and a full trial proceeded. The Learned Sessions Court Judge decided to acquit and discharge the accused from the charge at the end of the defence case.

The deputy public prosecutor (Appellant), who was not satisfied with the decision, has filed a Notice of Appeal.

During the trial at the prosecution stage, the Prosecution called a total of five witnesses to testify in order to prove its case against the accused. The Prosecution also tendered 13 documentary exhibits (documentary evidence), namely P1, P2, P3(A–Q), P4, P5, P6, P7, P7A, P8, P9, P10, ID10, ID11, ID12, & ID13, in support of the Prosecution’s case. The Prosecution witnesses were as follows: - SP1 – Suhaila binti Sahat, the complainant who is also the mother of the victim; SP2 – Alya Batrisya binti Mohamad Zaharuddin, the victim; SP3 – Aunie Nurina binti Mohamad Hanafi, a friend of the victim; SP – Muhammad Ilham Irfan bin Abd Mutalib, a friend of the victim; and SP5 – Inspector Azlan bin A. Rahman, the Investigating Officer.

On 03.10.2019, while on her way home from Sekolah Kebangsaan Kota Raja, the complainant (SP1) was informed by her daughter, the victim (SP2), that Ustaz Afiq (the accused) had held her buttocks and groped her chest as well as the front and back parts of her body. The said incident allegedly occurred while the victim was in a study room in the school library.

According to the victim, on the day of the incident, after recess, she and her classmates were instructed by the accused to attend an Arabic language class in the school library. All the pupils from Class 2 Bijak were seated at their respective tables to study, as shown in photograph exhibit P3. The victim was subsequently instructed by the accused to enter a study room located within the said library. The accused closed the door of the study room.

Thereafter, while the victim was doing her Arabic homework, the accused directed the victim to sit on his lap. The accused then proceeded to kiss the victim’s head and inserted his hand into the victim’s shirt, touching the victim’s chest and the back of her body. Subsequently, the accused instructed the victim to stand up and bend forward in a position similar to “rukuk”. The accused then removed the victim’s skirt and underwear and proceeded to hold the victim’s buttocks with both of his hands.

During the incident when the accused was allegedly touching the victim inside her shirt, the victim’s friend, SP3, was said to have witnessed the incident together with another friend, Nur Athirah Syafiqah binti Hamzah, through a hole in the door of the room in the library (as shown in photograph exhibit P3).

After hearing the victim’s story, the victim’s mother (SP1), upon arriving home, asked the victim further questions about the incident and asked the victim to swear on the Al-Quran while telling what had actually happened. 6 10. SP1 subsequently lodged a complaint with the school’s headmaster and later made a police report at the Panchor Police Station, Muar, on 03/10/2019.

Subsequently, on 04/10/2019, the accused was arrested by the police at his house and was remanded for further investigation. The accused was later charged in court on 30/09/2021.

In hearing this criminal appeal, I am mindful of this court’s duty as established by the governing statute and applicable case law, and have therefore proceeded accordingly.

Section 316 Criminal Procedure code provides for the duty of a court hearing an appeal from a subordinate court in the following terms: - “316 Decision on appeal 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 re-tried, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a 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 re-tried; or

(c) in an appeal from any other order, alter or reverse such order.”

It is settled law that the appellate court would be slow in interfering with the decision of the trial court, be it an appeal against conviction or acquittal, as well as sentence. It must be emphasized here that in any appeal against conviction / acquittal, it is not the function of an appellate court to make its own finding of fact. The function to make a finding of fact is exclusively reserved by the law for the trial court. An appellate court is necessarily fettered because it lacks the audiovisual advantage enjoyed by the trial court. (Public Prosecutor v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393 and Dato’ Seri Anwar bin Ibrahim v Public Prosecutor [2002] 3 MLJ 193).

However, it is also a trite law that the appellate court is duty-bound to interfere with such a finding if there are circumstances that justify such interference. Among others, the appellate court should interfere with such finding if the finding of fact suffers from some serious errors or the decision is against the weight of evidence (Dato’ Yap Peng v Public Prosecutor [1993] 1 MLJ 337) or that in the process of concluding fact the lower court misdirected itself from the law (Lee Lai Sien v Public Prosecutor [1978] 1 MLJ 259) or that the decision of the trial court on the finding of fact was grossly against the weight of evidence (Public Prosecutor v Ma’arif [1969] 2 MLJ 65). THE LAW IN RELATION TO SEXUAL OFFENCES AGAINST

In order to secure a conviction under s. 14(a) of the Sexual Offences Against Children Act 2017 (Act 792) (“SOACA 2017”), the Prosecution must prove the following elements beyond reasonable doubt. “a. The victim is a child below 18 years of age. b. The Accused had touch any part of the body of a child and, c. The Accused had done the act for sexual purposes. Explanation 1 - The act of touching may involve the act of touching with any part of the body or with an object and may be done through anything including anything worn by the person touching or by the child touched. Explanation 2 - In determining what constitutes sexual purposes, the court may take into consideration, among others, the part of the body that is touched, the nature and extent of the act of touching or the physical contact and all other.”

As can be seen in the provisions of section 14 above, Parliament has made it clear its abhorrence for such offences where it has legislated that a mere touching of any part of the body of a child or even with an object for sexual purposes commits an offence and shall on conviction be punished with imprisonment for a term not exceeding twenty years and shall also be liable to whipping. 10 18. Such abhorrence can also be seen in the provisions of section 25 of this Act where it is expressly provided that “Notwithstanding paragraph 289(c) of the Criminal Procedure Code, if a person convicted of any offence under this Act is a male whom the court considers to be more than fifty years of age, he may still be punishable with whipping.”

In dealing with the offences against children, there is a relaxation of the evidentiary requirements and this can be seen in sections 17 and 18 of the said Act and are reproduced below: - “17. Notwithstanding anything contrary in any other written law, in any proceedings against any person relating to any offence under this Act, or any offence specified in the Schedule where the victim is a child, a child is presumed to be competent to give evidence unless the court thinks otherwise.

Notwithstanding anything contrary in any other written law, in any proceedings against any person relating to any offence under this Act, or any offence specified in the Schedule where the victim is a child, the court may convict such person of such offence on the basis of the uncorroborated evidence of a child, given upon oath or otherwise.”

The Appellant has listed the following grounds in the Petition of Appeal: - “(a) Tuan hakim yang bijaksana telah tersalah arah apabila membuat dapatan bahawa Seksyen 114(g) Akta Keterangan 1950 terpakai dengan ketiadaan keterangan saksi bernama Nur Athirah di Mahkamah.

(b) Tuan Hakim yang bijaksana telah terkhilaf dari segi fakta dan undang-undang apabila menyatakan terdapat percanggahan yang material antara SP2 dan SP4.

(c) Tuan Hakim juga telah terkhilaf dari segi fakta dan undang-undang apabila menyatakan terdapat percanggahan yang material antara SP2 dan SP3 namun tidak menyatakan secara jelas percanggahan yang dimaksudkan di dalam Alasan Penghakiman.

(d) Tuan Hakim juga telah tersalah arah apabila membuat dapatan bahawa terdapat kelemahan dalam siasatan pegawai penyiasat kerana tidak menjalankan siasatan lanjut berdasarkan versi penceritaan OKT dalam rakaman percakapan OKT.” EVALUATION AND FINDINGS OF THIS COURT

The key point I need to highlight here is that all the grounds raised in the Petition of Appeal are issues that the Learned Sessions Court Judge should have addressed at the close of the prosecution case and not at the end of the defense case.

On the first ground, the learned Sessions Court invoked s. 114(g) (adverse inference) for failure to call a witness by the name of Nur Athirah as a witness in the case. However, this court finds that the failure to call the witness is not material or fatal to the prosecution’s case. This is because Nur Athirah and SP3 are the only eyewitnesses to the incident, and SP3 was called to give evidence. As such, there is no necessity to call another witness by the name of Nur Athirah. Both of them played a similar role in this case. The Federal Court in Amri bin Ibrahim & Anor v Public Prosecutor and another appeal [2017] 1 MLJ 1 decided, among other as follows: - “[57] The power of the court to draw an adverse inference under s 114(g) of the Evidence Act 1950 is discretionary. It depends on the circumstances of the case and particularly in cases where the material witnesses are not produced…” 13 23. Further, in the case of Munusamy v Public Prosecutor [1987] 1 MLJ 492, the Supreme Court had this to say: - “it is essential to appreciate the scope of section 114(g)of the Evidence act, 1950 lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but a material document by a party in his possession nor for non-production of just any witness but only an important and material witness to the case.” As such, the learned Sessions Court Judge wrongly invoked s 114(g) Evidence Act 1950 inference in this case.

On grounds two and three, based on the notes of the proceedings, I am unable to see any material contradictions in the evidence given by the witnesses in this case. Even if there are, it is not material and does not affect the credibility of the witnesses in this case. It is trite law that discrepancies and contradictions in evidence are bound to be present in any trial, as the testimony of witnesses does not come on in open court a day or two after the incident, but after a year or two. Thus, the testimony of witnesses is premised on their recollection of the event or incident. Some witnesses come out totally convincing as they may have the gift of a photographic memory, but many others are bound to contradict. So long as the discrepancies and contradictions are not material and do not affect the heartbeat of the case or fact in issue that needs to be proved, and sufficiently explained, it is excusable.

The test is ultimately, albeit with the discrepancies and contradictions, whether the case against the accused is proven beyond a reasonable doubt. (See cases like De Silva v. Public Prosecutor [1964] 1 LNS 32; Mohamed Alias v. Public Prosecutor [1981] 1 LNS 200; Pie Chin v. Public Prosecutor [1983] CLJ Rep 703).

This court also finds that there is no evidence to show that the investigations are incomplete in the case. The investigation officer, SP5, in his evidence, did say that he had interviewed the named persons by the Respondent, but did not take any statement from them since they didn’t seem to know anything about the incident. The Respondent also did not call any of them during his defense stage.

It is not in dispute that the victim was below 18 years of age. The victim’s identity card was produced to prove this. The victim also gave clear evidence as to what transpired when the accused instructed the victim to enter a study room. As to whether the accused touched the body part of the victim for sexual purposes. There is no mens rea requirement, but the court needs to consider, among others, the body parts that were touched by the accused in this case. (case: Mohd Faiza Rizza bin Mohd Ropi lwn Pendakwa Raya [2023] MLJU 1334). In this respect, the victim gave clear evidence that the accused proceeded to kiss the victim’s head and inserted his hand into the victim’s shirt, touching the victim's chest and the back of her body. Subsequently, the accused instructed the victim to stand up and bend forward in a position similar to “rukuk”. The accused then removed the victim’s skirt and underwear and proceeded to hold the victim’s buttocks with both of his hands. This clearly shows that what the accused did was for sexual purposes. SP1 also informed that the victim felt disgusted by the act of the accused. The victim, even at the age of 8 years, gave detailed evidence during the examination in chief as well as during cross-examination as follows: - “Semasa pemeriksaan awal Jadi selepas Ustaz Afiq suruh Alya masuk dalam bilik dalam perpustakaan itu apa yang berlaku? Masa Alya tengah buat kerja Ustaz itu dia suruh duduk atas peha dia. Selepas itu? Lepas itu dia cium kepala Alya. Lepas itu, Alya ceritakan? Lepas itu, dia raba-raba depan belakang Alya dalam baju. Maksud Alya dalam baju ini apa? Dia masukkan tangan dalam baju Alya. Dia ini siapa Alya? Ustaz Afiq. Selepas dia masukkan tangan dalam baju Alya dia buat apa? Lepas itu, dia suruh bangun rukuk, dia suruh buka kain dengan seluar dalam. Lepas itu dia tengok, dia pegang Alya punya punggong dengan dia tengok lubang punggong. Dia pegang Alya punya punggong? Ya. Alya ingat dia pegang satu tangan atau dua tangan? Dua tangan. Selepas itu? Selepas itu ada orang ketuk pintu, dia suruh pakai balik seluar dalam dengan kain dekat bawah meja. Kita ke belakang sikit, tadi Alya cakap Ustaz ada masukkan tangan dalam baju pegang depan dan belakang, Alya ingat tak bahagian mana yang dia sentuh? Perut dan dada. Semasa pemeriksaan balas Peguam: Alya cakap, pakcik tanya Alya selepas duduk, Alya bangun? Selepas duduk itu cium kepala, lepas tu raba-raba, lepas itu baru dia suruh bangun buka kain dengan seluar dalam. Peguam: Betul tak pakcik tanya ini, Alya masuk bilik duduk buat kerja dulu selepas itu cikgu suruh bangun…. Selepas itu cikgu apa itu, Ustaz suruh duduk atas peha dia, selepas itu dia cium kepala lepas itu dia raba-raba depan belakang, selepas itu dia suruh bangun buka kain dengan seluar dalam.”

It is also important to note that the victim revealed what transpired to her mother (SP1) the same day while leaving the school, and the mother cautioned her to swear on the Al-Quran before lodging a police report on the same day.

The accused gave sworn statement whereby he denied the allegations against him. However, he did not deny bringing the students class 2 Bijak to the library to teach Arabic language. He also did not deny bringing the victim (SP2) to the study room located within the said library. His excuse to close the door of the study room was that the air-conditioning in the room takes time to be cold.

The accused called two other witnesses, SD2 (wife of the accused) and SD3, a computer technician who works in the school.

SD2 (wife of the accused) gave evidence as to how the accused was arrested the next day by the police.

SD3 gave evidence to say that the air-conditioning in the library did not function and that the air-conditioning was only functioning in the study room.

The accused’s defence was nothing more than a bare denial. There was nothing in the defence that raised a reasonable doubt in the prosecution’s case. The credibility of the prosecution witnesses was intact, and there was no motive for the witnesses to frame him with a false accusation.

Having read the record of appeal, the learned session’s Judges’ grounds of judgment, and the written submissions of parties in this present appeal, I am satisfied that there were errors of law and fact committed by the sessions Judge in arriving at his decision to acquit and discharge the accused at the end of the defense case. The appeal is allowed, and the decision of the Sessions Court is set aside, and I find the accused guilty as charged and convict him accordingly.

While I wholly agree that sexual offences against children should be dealt with severely, at the same time, I am also of the view that the severity of the sexual act committed against children varies depending on the facts and circumstances of every case. The facts revealed that there was no sign or evidence of any form of violence involved, nor was there any threat or injuries inflicted by the accused against the victim. After weighing the mitigating factors raised by the accused, I sentenced the accused to 4 years’ imprisonment from the date of conviction and a further 2 years after serving the main sentence, and 2 strokes of the Rotan by virtue of section 16 of SOACA 2017 for committing the offence while in a relationship of trust with the child (victim). The accused was also ordered to undergo rehabilitative counselling during his detention and police supervision for 1 year after the expiration of the sentence pursuant to sections 26 and 27 of the SOACA 2017, respectively. Since the sentence involves imprisonment, the accused’s application for a stay of execution of the sentence was allowed pending the accused's appeal to the Court of Appeal. Dated 11th March 2026 t.t. KALYANA KUMAR A/L SOCKALINGAM JUDICIAL COMMISSIONER HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Appellant : Nor Hafizah Abdullah Messrs Lydiana Law Chamber For the Respondent : Nur Aqiilah binti Ahmad Rofaie Deputy Public Prosecutor Johor State Legal Advisor’s Office