Pendakwa Raya v ARRON AL SAURIAR (NA-42JSKLB-2-06/2025)

At the close of the prosecution’s case, the learned trial judge found a prima facie case established and called upon the respondent to enter his defence. Following the defence case, the learned trial judge found that the defence had successfully raised a reasonable doubt in the prosecution’s case and accordingly acquitted and discharged the respondent.

Being dissatisfied with the acquittal, the Public Prosecutor appealed to this Court.

Having considered the grounds of judgment, the submissions of both parties, the evidence adduced, and the applicable law, I dismissed the appeal and affirmed the decision of the learned trial judge. My reasons follow. Brief background of facts [5] The facts are gathered from the judgment of the learned trial judge. The victim was an 11-year-old female student who resided at Taman Suriaman 3, Seremban. At the time of giving evidence in court, she was 12 years old. The respondent was a school van driver who operated a Nissan Urvan school van. The respondent had been driving school vans for approximately 15 years. His father assisted in the operation of the van service, driving the 3 afternoon routes while the respondent drove the morning routes.

On 28.03.2022, the victim first used the respondent’s school van services to travel to school. That morning, the respondent picked up the victim from her home. The victim sat in the rear passenger seat.

The respondent allegedly touched the victim’s cheek, called her “cute” and “special” and asked her to sit in the front passenger seat the following day. That afternoon, the respondent’s father drove the victim home from school.

The following day at approximately 6:20 a.m., the respondent again picked up the victim from her home. The victim was the first passenger collected that morning. The victim entered and sat in the front passenger seat beside the respondent. The respondent greeted the victim with “Good Morning Princess” but the victim did not respond.

The respondent gave the victim a Yeo’s packet drink and a key chain with the respondent’s telephone number. The respondent tried to make conversation with the victim and said that tomorrow he will give the victim some chocolates. When asked, the victim said she is called “Ella” but at home she is more comfortable with the nickname “Neno”. The respondent also asked the victim to simply call him “Arron” instead of “uncle”.

As they passed the guardhouse of the residential area, it was the prosecution’s case that during this journey the respondent held and rubbed the victim’s right hand and placed his hand on the victim’s thigh. According to the prosecution, the victim was afraid and felt uncomfortable.

When the respondent stopped holding her hands, the victim put her hand down. Moments later, the victim put her hand back on the handrest and again the respondent held the victim’s hand. On this second occasion, the victim explained that the respondent held her hand briefly and the victim put her hand back down again. During this time, the respondent allegedly placed his left hand on the victim’s thigh and rubbed the victim’s thigh. The respondent then tapped the victim’s thigh three times.

The victim then backed away from the respondent. The respondent drove slowly until they reached the house of the second student to be collected. Nothing further happened. In the afternoon, the victim was collected by the respondent’s father who drove the van sending the victim home. At school, the victim did not relate the incident to anyone as she trusted no one.

On the evening of 29.03.2022 after she got back from school, the victim requested her mother that her brother send her to school the following day instead of using the van service. When asked why, the victim said the respondent was “suspicious” but did not elaborate. At 5 approximately 8:00 p.m., the victim’s mother inquired via WhatsApp whether the respondent was lecherous (“gatal”). The victim responded that she felt like hitting him and requested to speak to her mother privately. When her mother entered her room, the victim ran to her, hugged her, and cried.

The victim then disclosed to her mother and stepfather what had transpired.

On the morning of 30.03.2022, at approximately 6:30 a.m., when the respondent arrived to collect the victim, an altercation occurred. The victim’s stepfather confronted the respondent, punched him in the stomach causing him to urinate, slapped his left cheek and demanded that he admit to touching the victim.

Subsequently, at approximately 9:12 a.m., the victim’s mother lodged a police report. The respondent was arrested that afternoon.

During trial, a demonstration and re-enactment of the alleged incident was conducted at the court premises in the presence of the court interpreter, the vehicle owner, defence counsel, the victim’s support person, the investigating officer and the police photographer. The victim demonstrated how the respondent allegedly touched her cheek and how the respondent allegedly held her hand and touched her thigh. The victim showed how 6 the respondent’s left hand held her right hand while his right hand held the steering wheel. The victim demonstrated the manner in which her cheek was touched, her hand was held and her thigh was rubbed and tapped three times. Judgment of the trial court [18] At the close of the defence’s case, the learned trial judge acquitted and discharged the respondent, finding that the defence had successfully raised a reasonable doubt in the prosecution’s case. In reaching this conclusion, the learned trial judge made several material findings of fact, many of which were based on her direct observation of the witnesses and the demonstration conducted in open court.

First, the learned trial judge identified material discrepancies between the charge, the police report and the victim’s testimony regarding the nature of the alleged touching. The charge alleged “memegang dan meramas” (holding and groping) of the hand and “memegang dan menepuk” (holding and patting) of the thigh. The police report filed by the victim's mother stated that the respondent “meramas dan menggosok-gosok” (groped and rubbed) the hand twice and “meraba” (groped) the right thigh. However, during the victim’s testimony, she described the act on the thigh as “he rubbed me and then he tapped my paha 3 times”.

Critically, the learned trial judge observed that during the demonstration conducted at the court premises using the actual van, the victim stated that the respondent held her hand twice and "tapped my paha 3 times." The learned trial judge specifically noted that the victim did not demonstrate any rubbing or groping during the re-enactment.

Second, the learned trial judge gave significant weight to the respondent’s contemporaneous police statement (Exhibit D18) which was recorded on 31.03.2022 without access to legal counsel. In D18, the respondent specifically denied holding the victim’s hand or touching her thigh but admitted to touching (“sentuh”) her hand briefly while comforting the victim, “adik jangan risau, kalau ada apa-apa bagitahu uncle Arron” (don’t worry, if anything happens tell Uncle Arron).

The respondent explained that he did so because the victim had told him she had argued with her brother and had no friends at school. The learned trial judge found this evidence to have high probative value as it was the earliest statement given by the respondent at a time when he had no access to legal advice.

Third, applying Explanation 2 to section 14 of Act 792, the learned trial judge conducted a thorough analysis of whether the touching was for “sexual purposes”. The learned trial judge found that a “mere tap” on the hand or 8 thigh, occurring briefly while the respondent was driving and offering words of encouragement, did not constitute touching for sexual purposes. The learned trial judge considered that both parties were fully clothed, the contact was over clothing and did not touch skin or private parts, the contact was brief, no groping occurred, no sexually suggestive words were uttered and there was no indication towards sexual activity. In that circumstance, the learned trial judge concluded that “mere tapping of hands” without force did not demonstrate any malicious or sexual intent.

Fourth, the learned trial judge rejected the prosecution’s argument that the respondent’s conduct in giving the victim a keychain and juice box, calling her “Princess” and asking her to sit in the front seat indicated grooming behaviour. The learned trial judge accepted the unchallenged evidence of the victim’s brother (SP6) that keychains and juice boxes were given to all new students as normal business practice. The keychain contained the contact numbers of the respondent and his father for practical purposes, namely to enable new students to contact the van driver if lost or if they missed the van. The learned trial judge found it unreasonable to infer preferential treatment when the victim had only known the respondent for two days. The appeal [25] The learned DPP advanced several grounds of appeal. I shall address each in turn. Whether the defence was an afterthought [26] The learned DPP contended that the respondent’s evidence was inconsistent and constituted an afterthought. The learned DPP pointed to the respondent’s use of different terms:

“touched” (“sentuh”) in D18,

“spontaneously tapped” (“tap secara spontan”) in the witness statement, and

“tapped once only” (“tap sekali saja”) during cross-examination. [27] The learned DPP argued that the specific detail of “tap once only” was not put to the prosecution witnesses at the earliest opportunity. The learned DPP relied on the case of Henry Chan Kok Loon v. Public Prosecutor [2017] CLJU 1174 for the proposition that failure to put the defence case at the earliest available opportunity implies the defence is an afterthought. [28] The learned counsel submitted that the terms “touched”, “spontaneously tapped”, and “tapped” were merely different linguistic expressions describing the same act. The learned counsel pointed to the trial record which showed that the defence version was put to the victim during cross-examination, where counsel suggested that the respondent “tab your hand” while giving words of encouragement. The learned counsel relied on the case of Alcontara a/l Ambross Anthony v. Public Prosecutor [1996] 1 CLJ 705 where the Federal Court held that failure to put the defence case to prosecution witnesses cannot by itself relieve the prosecution of its duty to prove the charge beyond reasonable doubt. [29] I find merit in the submission of the learned counsel. The appeal record confirmed that the essence of the defence, that the respondent merely tapped the victim’s hand while offering words of encouragement, was put to the victim during cross-examination. The semantic differences between “sentuh” and “tap” in colloquial usage are minimal. The learned trial judge, having heard the evidence and observed the witnesses, was entitled to find that the defence was consistent throughout and was not an afterthought. In this respect, I am unable to agree with the learned DPP. Reliability of evidence and material discrepancies [30] The learned DPP contended that the victim’s testimony in court was consistent throughout and that there was no exaggeration or fabrication. The learned DPP argued that the discrepancies between the police report and the victim’s testimony were immaterial. [31] On the other hand, the learned counsel submitted that the discrepancies were material as they concerned the exact nature of the touching. The distinction between “tapped” (“tepuk”) and “rubbed” or “groped” (“raba/ramas”) went to the core of the alleged act and directly impacted the determination of sexual purpose. The learned counsel relied on PP lwn. Aladib Jais [2012] 5 CLJ 723 for the principle that material contradictions in the prosecution’s evidence render the testimony unreliable and unsafe. [32] I agree with the learned counsel. The learned trial judge correctly identified that the victim never used the word “ramas” (grope) as stated in the charge and the police report. Pertinently, the learned trial judge personally observed the demonstration conducted by the victim at the court premises using the actual van. During this demonstration, the victim stated that the respondent held her hand twice and “tapped my paha 3 times”. The learned trial judge specifically noted that the victim did not demonstrate any rubbing or groping. [33] Crucially, this finding of fact, made by the learned trial judge who had the audio-visual advantage of watching and assessing the re-enactment as personally carried out by the victim in open court, is entitled to considerable weight. The distinction between “tapped” and “rubbed” or “groped” is material to the element of sexual purpose. On this score, I am unable to agree with the learned DPP. Whether the element of sexual purpose was proven [34] The learned DPP argued that the touching of the hand and thigh was improper and contrary to moral standards, and that there was no necessity for any touching on the second meeting. The learned DPP relied on the victim’s testimony during re-examination that she felt “uncomfortable” when touched, distinguishing it from an encouraging gesture. [35] The learned counsel submitted that Explanation 2 to section 14 of Act 792 requires consideration of the body part touched, the nature and extent of the touching and all surrounding circumstances. The learned counsel contended that a brief, spontaneous tap while offering words of encouragement, in the context of driving on a public road with both parties fully clothed, did not constitute touching for sexual purpose. [36] It is well-accepted that not all physical contact with a child automatically constitutes an offence under section 14(a); the contact must be proven to be for a sexual purpose. The court must examine the evidence as a whole to determine whether the touching was for sexual purpose. (See: Mohd Khairul Azlan bin Mohd Napi v. Pendakwa Raya [2021] MLJU 2052). [37] I find that the learned trial judge correctly applied Explanation 2 to section 14 of Act 792. The learned trial judge, having personally observed the demonstration and re-enactment conducted by the victim, made a finding of fact that the act demonstrated was a “tap” and not a “rub” or “grope”. [38] This finding was critical. The learned trial judge considered all relevant factors: the nature of the contact (a brief tap, not a rub or grope as demonstrated by the victim herself), the circumstances (both parties fully clothed, contact over clothing, respondent driving on a public road, no sexual words uttered), and the context (words of encouragement offered to a child who had expressed sadness). [39] In my considered judgment, the finding that “mere tapping of hands” without force or sexual indicia did not demonstrate sexual intent was legally sound and factually supported by the demonstration which the learned trial judge personally witnessed. The learned DPP’s reliance on the victim’s subjective discomfort, while relevant, did not override the objective factors required by Explanation 2. Standard of appellate intervention [40] The learned counsel submitted that appellate courts should be slow to disturb findings of credibility and fact made by the trial judge who had the advantage of observing the witnesses firsthand. The learned counsel relied on Herchun Singh v. PP [1969] CLJU 52 and Che Omar Mohd Akhir v. Public Prosecutor [2007] 3 CLJ

[41] The threshold for appellate intervention is high and narrow. Intervention is justified only where the trial court’s findings are plainly wrong, perverse or unsupported by evidence. [42] In the present appeal, the learned trial judge’s findings were particularly compelling because they were based not merely on testimonial evidence but on the learned trial judge’s direct observation of the demonstration and re-enactment conducted by the victim herself at the court premises. [43] The learned trial judge had the unique audio-visual advantage of watching the victim demonstrate the alleged acts using the actual van. This Court, reading the record of appeal, did not have this advantage. The learned trial judge’s finding that the victim demonstrated a “tap” and not a “rub” or “grope” was a finding of fact made by a judge who personally witnessed the re-enactment. The learned DPP has not demonstrated that this finding was plainly wrong or perverse. In such a circumstance, I found no substantial and compelling reasons to disturb the learned trial judge’s findings. Conclusion [44] For the reasons stated above, I found no merit in the appeal. The learned trial judge correctly applied the law and properly evaluated the evidence. The learned trial judge had the distinct advantage of personally observing the demonstration and re-enactment conducted by the victim in open court, and made findings of fact based on that observation. The defence successfully raised a reasonable doubt as to whether the touching was for sexual purpose within the meaning of section 14(a) of Act 792. [45] Accordingly, the appeal was dismissed. The order of acquittal and discharge made by the learned Sessions Court Judge was affirmed. Dated 26 March 2026. For the appellant: Siti Khairiah Abdul Razak Deputy Public Prosecutor State of Negeri Sembilan. For the respondent: Gobinathan Murugiah Kartikeyan Supramaniam (Messrs. Morthi Segaran & Co.) AHMAD SHAHRIR MOHD SALLEH JUDGE HIGH COURT OF MALAYA