Pendakwa Raya v ANWARI BIN TABRANI (TA-42JSKLB-3-11/2024)

TA-42JSKLB-3-11/2024 Kand. 38 19/05/2026 16:11:42 IN THE HIGH COURT OF MALAYA AT KUALA TERENGGANU IN THE STATE OF TERENGGANU DARUL IMAN, MALAYSIA CRIMINAL APPEAL NO. TA-42JSKLB-3-11/2024 BETWEEN PUBLIC PROSECUTOR ... APPELLANT AND ANWARI BIN TABRANI ... RESPONDENT In the Matter of the Sessions Court at Kemaman In the State of Terengganu Darul Iman, Malaysia No.: TB-62JSK-14-03/2022 BETWEEN PUBLIC PROSECUTOR AND ANWARI BIN TABRANI INTRODUCTION

1. This is an appeal by the Public Prosecutor against the decision of the learned Sessions Court Judge ("SCJ") in Kemaman, Terengganu, delivered on 11 November 2024, whereby the Respondent (Anwari bin Tabrani) was acquitted and discharged at the close of the defence case for an offence under Section 14(d) of the Sexual Offences Against Children Act 2017 (Act 792), read together with Section 16 of the same Act.

2. Being dissatisfied with the said decision, the Prosecution filed a Notice of Appeal on 24 November 2024. The Petition of Appeal was filed on 11 July 2025, setting out ten grounds upon which the Prosecution contends that the learned SCJ had erred in both fact and law in arriving at the decision to acquit the Respondent.

3. The Respondent, through his solicitors, filed their written submissions on 3 January 2026, contending that the acquittal was safe and that no interference by this appellate court was warranted. The Prosecution filed their written submissions in reply on 4 January 2026. Having carefully considered the Records of Appeal, the grounds of judgment of the learned SCJ, the petition of appeal, and the written submissions of both parties, this court now delivers its decision. BACKGROUND FACTS

4. The Respondent was charged with one count of physical sexual assault against his biological daughter, XXXXXXXXX XXXXX XXXXXXX ("SP4"), who was 14 years and 7 months old at the material time. The particulars of the charge are as follows: "Bahawa kamu pada 06 September 2021 jam lebih kurang 10.00 malam di XXX, XXXX dalam Daerah Kemaman, di dalam Negeri Terengganu dengan sengaja telah menggesel kemaluan kamu ke kemaluan anak kandung kamu iaitu XXXXXXXXX XXXXX XXXXX (No. Kad Pengenalan: 0702XX-XX-XXXX) yang berumur 14 tahun 07 bulan yang mana telah melibatkan kontak fizikal bagi maksud seksual tanpa persetubuhan. Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum bawah seksyen 14(d) Akta Kesalahan-Kesalahan Seksual terhadap Kanak-Kanak 2017 dan dibaca bersama seksyen 16 Akta yang sama."

5. The Prosecution's case, as presented through six prosecution witnesses, was as follows. On 6 September 2021, at approximately 10.00 pm, SP4 was in the Respondent's bedroom playing with the Respondent's mobile phone. The Respondent entered the room, closed the door, turned off the lights, and locked the door. He then approached SP4, removed all her clothing including her undergarments, leaving her completely naked. During this process, the Respondent covered SP4's mouth and instructed her to remain silent. The Respondent then removed his own trousers, revealing his erect penis. He positioned SP4 on her back on the mattress, held both her hands down, and positioned himself on top of her. The Respondent then placed his penis against SP4's vagina and rubbed it against hers for approximately ten minutes. After this period, the Respondent ejaculated, and his semen landed on SP4's stomach. The Respondent then moved aside, making motions as though disposing of the semen. SP4, who was in a state of fear throughout the ordeal, immediately dressed herself and fled to the living room where she spent the night. On 8 September 2021, SP4 confided in her sister, SP5, about the incident. The following day, SP5 accompanied SP4 to lodge a police report (Exhibit P22).

6. At the close of the Prosecution's case, the learned SCJ found that a prima facie case had been established and called for the defence. The Respondent elected to give sworn testimony from the witness box and called one additional witness, his son Rohairikin ("SD2"). The defence case was essentially a denial of the alleged incident. The Respondent maintained that he had never committed any sexual act against SP4. Both the Respondent and SD2 testified that on the night in question, SP4 was in the living room area with her brothers, including SD2, watching television and did not enter the Respondent's bedroom at any time.

7. After evaluating the totality of the evidence, the learned SCJ found that the defence had succeeded in raising a reasonable doubt in the Prosecution's case. Consequently, the Respondent was acquitted and discharged. It is against this decision that the Prosecution now appeals. ISSUES FOR DETERMINATION

8. The Prosecution's petition of appeal advances ten grounds, which may be distilled into the following core issues for determination by this court:

(1) Whether the learned SCJ erred in finding that the Respondent's defence raised a reasonable doubt, given that the defence was allegedly a bare denial;

(2) Whether the learned SCJ erred in accepting the evidence of SD2, an interested witness, particularly regarding the placement of mattresses and the television in the house, and in according more weight to this evidence than to the testimony of SP4;

(3) Whether the learned SCJ erred in her findings concerning the visibility of movements in and out of the Respondent's bedroom to SP4's brothers;

(4) Whether the learned SCJ failed to properly consider the totality of SP4's evidence, which was consistent, credible, and corroborated by other prosecution witnesses;

(5) Whether the learned SCJ erred in failing to draw an adverse inference under Section 114(g) of the Evidence Act 1950 for the non-production of one of the Respondent's son, who was present on the night of the incident and could have corroborated the defence narrative. THE ROLE OF THE APPELLATE COURT

9. Before addressing the substantive issues, it is necessary to restate the well-established principles governing appellate intervention in findings of fact by a trial court. An appellate court will be slow to interfere with such findings, recognizing the distinct advantage enjoyed by the trial judge in observing the demeanour and assessing the credibility of witnesses first-hand. This principle, articulated in the oft-cited case of Public Prosecutor v Wan Razali Kassim [1970] 2 MLJ 79 (FC), remains the cornerstone of appellate review.

10. However, as the Court of Appeal in Mohd Yusri bin Mangsor & Anor v Public Prosecutor & Another Appeal [2014] 4 MLJ 875 (CA) clarified, this deference is not absolute. An appellate court may intervene where, inter alia, the judgment is based on a wrong premise of fact or law, where there has been insufficient judicial appreciation of the evidence, where the trial judge has overlooked the inherent probabilities of the case, or where the trial judge has so fundamentally misdirected himself that no reasonable court, properly directing itself, would have arrived at the same conclusion. This court must therefore carefully scrutinize the learned SCJ's findings against these established exceptions. THE PRINCIPLE FROM MAT v PUBLIC PROSECUTOR [1963] 1 MLJ 263

11. This court refers with great respect to the principle established by Suffian J (as His Lordship then was) in the case of Mat v Public Prosecutor [1963] 1 MLJ 263 (HC). That case provides invaluable guidance regarding the burden of proof in criminal cases, and it is directly applicable to the present appeal.

12. In that case, the appellant was charged with theft of chickens. He gave evidence and called witnesses in his defence. At the conclusion of the trial, the Magistrate convicted him solely on the ground that "on the whole I am unable to believe the defence." The High Court allowed the appeal because the Magistrate had seriously misdirected himself as to the meaning of the burden of proof borne by the accused. Suffian J set out the correct legal position as follows.

13. His Lordship first stated the fundamental principle: "If upon the whole evidence you are left in a real state of doubt, the prosecution has failed to satisfy the onus of proof which lies upon it." This means that the burden of proving the accused's guilt rests squarely on the prosecution's shoulders throughout the entire trial. The accused does not need to convince the court that his defence is true; the accused only needs to raise a reasonable doubt in the prosecution's case.

14. Suffian J then laid down five (5) stages of the test that a trial court must apply when evaluating defence evidence:

15. The critical insight from this reasonable-doubt scaffold established in Mat v Public Prosecutor (supra) is that a trial court is not confined to the binary choice of either "believing" the defence or "convicting" the accused. There exists a situation: stage (e) i.e. where the court may not believe the defence, yet is still obliged to acquit if that defence raises a reasonable doubt. A trial judge who fails to appreciate this distinction commits a serious misdirection of law. APPLICATION OF THE MAT PRINCIPLE TO THIS CASE

16. Applying the principle from Mat v Public Prosecutor to the present case, the following observations must be made.

17. First, the learned SCJ heard the detailed and consistent testimony of the victim (SP4) regarding the incident. The learned SCJ found SP4 to be a credible witness and that her testimony was "unusually convincing". If the court had stopped there, under stage (a) in Mat v Public Prosecutor, a conviction might have been possible.

18. However, the learned SCJ also heard the defence evidence from the Respondent (SD1) and his son, SD2. The Respondent, in his cautioned statement (Exhibit D29) recorded shortly after his arrest (long before the trial began), consistently maintained that he was never alone with the victim because his sons were always present at home. SD2 testified that on the night of the incident, the victim was with him and another brother named Hairil in the television area (Area B in Figure 1) throughout the night, watching television and later sleeping there, and that she never entered the Respondent's bedroom. Figure 1: Rajah Kasar

19. The critical question is not whether the learned SCJ believed the Respondent's explanation. Under stages (c) and (e) in Mat v Public Prosecutor, the learned SCJ may decide that she does not believe the Respondent's defence, yet she is still obliged to acquit the Respondent if that defence raises a reasonable doubt in her mind. This is precisely what the learned SCJ did in this case.

20. The learned SCJ conducted a site visit to the Respondent's house to understand the actual layout. Based on that visit and the evidence, the SCJ found:

21. These findings, whether the SCJ fully "believed" SD2 or not, were sufficient to raise a reasonable doubt regarding the prosecution's version of events. If indeed the television was in Area B (not Area A), and the mattresses were originally in Area B, and SD2 and his brother were awake all night in Area B, then a question arises: How could the victim have entered the Respondent's bedroom, passing through the area where SD2 and his brother were present, without being noticed? This doubt, even if the learned SCJ did not necessarily believe every detail of SD2's testimony, was sufficient to create "a real state of doubt" as stated in Mat v Public Prosecutor.

22. Therefore, even assuming (without deciding) that the SCJ did not fully accept or believe the defence explanation, under stage (e) of Mat v Public Prosecutor, an acquittal was still the only correct decision because the defence had raised a reasonable doubt. The learned SCJ correctly understood and applied this principle. THE NATURE OF THE RESPONDENT'S DEFENCE

23. The Prosecution argued that the Respondent's defence amounted to nothing more than a bare denial, which, as a matter of law, is incapable of raising a reasonable doubt. Reliance was placed on Losafi v Public Prosecutor [2012] 2 CLJ 178 (CA) and Amran Senin v Public Prosecutor [2013] 1 CLJU 1504 (CA).

24. This court is unable to accept the Prosecution's characterization of the Respondent's defence. A careful examination of the defence evidence reveals that it was not a mere blanket denial. The Respondent, through his cautioned statement (Exhibit D29) recorded shortly after his arrest, had consistently maintained that he never had the opportunity to be alone with SP4 because his two sons were always present at home. This assertion was not an afterthought conjured during the trial but was raised at the earliest possible opportunity during police investigation.

25. The Court of Appeal in Prasit Punyang v Public Prosecutor [2014] 4 CLJ 392 (CA) emphasized the importance of considering whether a cautioned statement, raised early in the investigation, is capable of raising a reasonable doubt. The fact that the Respondent mentioned the presence of his sons at a very early stage lends credence to the defence that this was not a fabricated story developed later.

26. Furthermore, the defence adduced the testimony of SD2, who was present at the scene on the night in question. SD2 testified that SP4 was with him and another brother throughout the night, watching television and later sleeping in the living room area, and that she never entered the Respondent's bedroom. This was not a bare denial; it was a positive assertion of fact from an eyewitness who claimed to have been present throughout the relevant period. The defence, therefore, went beyond mere denial and offered an alternative narrative supported by witness testimony. The cases of Losafi v Public Prosecutor (supra) and Amran Senin v Public Prosecutor (supra) are therefore distinguishable on the facts. THE EVIDENCE OF SD2 AS AN INTERESTED WITNESS

27. The Prosecution heavily criticized the learned SCJ's reliance on the testimony of SD2, arguing that as the Respondent's son, he was an interested witness whose evidence was motivated by a desire to save his father.

28. It is trite law that the evidence of an interested witness is not automatically to be rejected. As held in Balasingham v Public Prosecutor [1959] 1 MLJ 193 (HC), "There is no legal presumption that an interested witness should not be believed. He is entitled to credence until cogent reasons for disbelief can be advanced in the light of evidence to the contrary and the surrounding circumstances". This principle was reaffirmed by the Court of Appeal in Saravanan Rajagopal & Anor v Public Prosecutor [2019] 2 MLJ 752 (CA) and in Islam Rabea Mohamed Ismail Elbanna v Public Prosecutor [2025] CLJU 3235 (CA).

29. The learned SCJ was acutely aware of SD2's relationship with the Respondent. At paragraph [80] of her grounds of judgment, she explicitly stated that she constantly reminded herself that SD2 was an interested witness. Despite this, she found his testimony to be consistent and credible on certain aspects, particularly regarding the layout of the house and the placement of the mattresses. This court finds that the learned SCJ properly directed herself on the law and undertook the requisite scrutiny of SD2's evidence. The fact that she ultimately accepted certain parts of his testimony does not, in itself, constitute an error warranting appellate intervention. THE FACTUAL FINDINGS REGARDING THE SITE VISIT AND PLACEMENT OF ITEMS

30. The Prosecution argued that the learned SCJ erred in concluding that if SP4 had left the Respondent's bedroom, she would have been clearly visible to her brothers. This court finds that this was a finding of fact based on the SCJ's own observation during the site visit. The SCJ was entitled to conduct such a visit and to draw reasonable inferences from the layout of the house.

31. Regarding the placement of the television and mattresses, the learned SCJ's finding that the defence version was more probable was based on physical evidence observed during the site visit, namely, that the television was mounted on the wall in Area B. SP4's testimony that the television was originally in Area A was contradicted by this physical evidence. The SCJ was entitled to consider this inconsistency in assessing the overall reliability of SP4's account. The fact that SP4 may have been mistaken about the location of the television does not necessarily mean she was mistaken about the occurrence of the sexual assault, but it is a factor that the trial judge could legitimately consider in her overall evaluation of the evidence. THE NON-PRODUCTION OF RESPONDENT'S SECOND SON, HAIRIL

32. The Prosecution's final ground concerns the failure of the defence to call Hairil, the other brother present on the night of the incident. It was submitted that an adverse inference should be drawn under Section 114(g) of the Evidence Act 1950.

33. Section 114(g) provides that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. However, as held by the Supreme Court in Munusamy v Public Prosecutor [1987] 1 MLJ 492 (SC), this presumption applies only where there is a withholding of evidence, not where the evidence is simply not available or where its absence is otherwise explained.

34. In the present case, the defence had already called SD2, who was present throughout the night, to testify. The presence of Hairil was acknowledged, but the defence elected not to call him. The question is whether this omission should lead to an inference that his evidence would have been unfavourable to the defence. The authorities cited by the Prosecution, such as Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705 (HC) and Ahmad Azizi bin Azmi v Public Prosecutor [2013] 3 CLJ 161 (CA), concerned situations where the prosecution failed to call material witnesses, and the court drew adverse inferences accordingly. However, in this case, the witness was potentially available to the defence, and the defence chose not to call him.

35. This court is of the view that the failure to call Hairil does not, in the circumstances of this case, warrant the drawing of an adverse inference. The defence had already presented its case through the Respondent and SD2. Calling an additional witness to corroborate the same narrative would have been merely cumulative. More importantly, the burden of proof never shifted to the defence. The Prosecution bore the burden of proving its case beyond a reasonable doubt. If the Prosecution believed that Hairil was a material witness whose evidence could have supported its case, it was open to the Prosecution to call him or to seek to have his statement tendered. The fact that the defence did not call him cannot be used to bolster the prosecution's case or to fill gaps in its evidence. The learned SCJ was therefore correct not to draw an adverse inference on this basis. CONCLUSION

36. Having carefully considered all the grounds of appeal and the submissions of both parties, this court is not persuaded that the learned SCJ erred in a manner that warrants appellate intervention.

37. The learned SCJ conducted a thorough evaluation of the evidence, directed herself correctly on the applicable law, and arrived at a conclusion that was open to her on the facts. She properly recognized the seriousness of the charge and the credibility of SP4's testimony, but also her duty to consider the defence evidence in its totality. Although the learned SCJ did not expressly mention Mat v Public Prosecutor (supra) in her grounds of judgment, this court is satisfied that her reasoning conformed to the principles laid down in that case. She did not convict merely because she may not have fully believed the defence; instead, she evaluated whether the defence raised a reasonable doubt. Finding that it did, she correctly acquitted the Respondent under what would be stage (e) of the Mat reasonable-doubt scaffold. Accordingly, her decision is affirmed.

38. This court is mindful of the principle that an appellate court should not interfere with findings of fact made by a trial court unless it is satisfied that the finding is plainly wrong or based on a misdirection. That threshold has not been met in this appeal. The learned SCJ's decision to acquit the Respondent was based on a careful and balanced assessment of all the evidence, and it cannot be said that no reasonable court, properly directing itself, would have arrived at the same conclusion. DECISION

39. For the foregoing reasons, this appeal is dismissed. The decision of the learned SCJ acquitting and discharging the Respondent is affirmed. Dated: 19 May 2026 Yusrin Faidz Bin Yusoff Judge High Court of Malaya Kuala Terengganu Counsel for the Appellant: TPR Noor Asykin Binti Hashim Timbalan Pendakwaraya Negeri Terengganu, Pejabat Penasihat Undang-Undang Negeri Terengganu, Tingkat 14, Wisma Darul Iman, 20200 Kuala Terengganu, Terengganu Darul Iman. Counsel for the Respondent:Muhammad Abdul Rahman Bin Ab Raza Messrs. Mohd Hayyatuddin & Co.470-F, Tingkat 1, Jalan Kamaruddin,20400 Kuala Terengganu,Terengganu Darul Iman. CASE REFERENCE:

1. Public Prosecutor v Wan Razali Kassim [1970] 2 MLJ 79 (FC).

2. Mohd Yusri bin Mangsor & Anor v Public Prosecutor & Another Appeal [2014] 4 MLJ 875 (CA).

3. Mat v Public Prosecutor [1963] 1 MLJ 263 (HC).

4. Losafi v Public Prosecutor [2012] 2 CLJ 178 (CA).

5. Amran Senin v Public Prosecutor [2013] 1 CLJU 1504 (CA).

6. Prasit Punyang v Public Prosecutor [2014] 4 CLJ 392 (CA).

7. Balasingham v Public Prosecutor [1959] 1 MLJ 193 (HC).

8. Saravanan Rajagopal & Anor v Public Prosecutor [2019] 2 MLJ 752 (CA).

9. Islam Rabea Mohamed Ismail Elbanna v Public Prosecutor [2025] CLJU 3235 (CA).

10. Munusamy v Public Prosecutor [1987] 1 MLJ 492 (SC).

12. Ahmad Azizi bin Azmi v Public Prosecutor [2013] 3 CLJ 161 (CA). LEGISLATION REFERENCE

1. Section 14(d) & 16 of the Sexual Offences Against Children Act 2017.

2. Section 158 of the Criminal Procedure Code.

3. Section 114(g) of the Evidence Act 1950.