Pendakwa Raya v Mohd Aman Bin Mustapa (AB-41H(A)-3-12/2023)

The Appellant was originally charged for the above offence and another offence under s.376(2)(f) of the Penal Code but he was acquitted of this charge after trial, which read: Pertuduhan di dalam kes AB-61JS-1-11/2020 5 Bahawa kamu pada antara 18/06/2020 jam lebih kurang antara 2.00 pagi hingga 5.00 pagi bertempat di pejabat HEA Pengurusan, Ibu Pejabat Daerah Selama, di dalam Derah Larut Matang (Selama) di dalam negeri Perak telah merogol XXX, No. KPT:XXX dengan kerelaanya, apabila kerelaanya diperolehi dengan menggunakan kedudukan berkuasa kamu terhadapnya atau kerana 10 hubungan professional atau hubungan amanah lain yang berhubung dengannya, Dan oleh yang demikian kamu telah melakukan suatu kesalahan di bawah Seksyen 376(2)(f) Kanun Keseksaan yang boleh dihukum di bawah Seksyen 376(2) Kanun Keseksaan. 15 [3] Both charges were heard together by the previous SCJ who then went on mandatory retirement (after she had called for defence on both charges). The present SCJ had viewed the Notes of Evidence and recording of procedings at the prosecution stage. After trial, the SCJ acquitted him of the rape charge, convicted him on the s.385 20 Penal Code charge and sentenced him to 3 years’ imprisonment from the date of conviction.

The learned Deputy Public Prosecutor (Respondent here) had appealed against the acquittal in case No. AB-42LB(A)-1-12/2023 25 and sentence in Criminal Appeal No. AB-42H(A)-3-12/2023.

After hearing submissions of both parties on the 3 appeals (the hearing was held on 2.2.2025 and 3.5.2025, the Court dismissed the Appellant’s appeal against conviction and sentence as well as 30 the appeal against acquittal by the DPP. However, the Court increased the sentence of the Appellant from 3 years to 5 years 3 imprisonment, given the circumstances of the case. The Appellant filed a Notice of Appeal against this Court’s decision on 5.6.2025. The Court now gives its reasons for upholding the conviction by the SCJ and enhancing the sentence against him. For convenience, I have prepared only 1 Grounds of Judgment for all the 3 appeals 5 heard before me. PROSECUTION CASE [6] The facts of the case has been obtained from the grounds of judgment of the learned SCJ. The prosecution called 15 witnesses 10 to prove its case as follows: SP1 - Lans Koperal Asri Bin Jamin (Jurugambar) SP2 - Inspektor Yuwaraja A/L L. Kanapathy (Pegawai tangkapan) SP3 - XXX (Pengadu di dalam kes AP-82-3-10/2020) 15 SP4 - Lans Koperal Azhar Bin Wahab SP5 - Lans Koperal Mohd Mustaqim Bin Rozali SP6 - Lans Koperal Muhamad Syazwan Bin Noh SP7 - Koperal Tuan Ridhwan Firdaus Bin Tuan Jaafar SP8 - Inspektor Suhana Binti Saad (Pegawai Forensik) 20 SP9 - Muhammad Harith Bin Yaacob SP10 - XXX (Pengadu di dalam kes AB-61JS-1-11/2020) SP11 - ASP Musyadi Bin Mohamed Sadri SP12 - Chan Xin Yi (Ahli Kimia) SP13 - Inspektor Raguvarann Nair A/L Narayanan (Pegawai 25 Penyiasat) SP14 - Inspektor Nurul Asikin Binti Eliaes (Pegawai Penyiasat) SP15 - Nurul Atikah (Rakan mangsa)

The incident happened during the Movement Control Order (MCO) period in 2020 and the main witnesses for the 2 cases were SP3 and SP10. At the material time, they were a couple engaged to be married. However, prior to their marriage, they had done some things of a sexual nature, in private, and kept videos of their sexual 5 acts in their mobile telephones. (Note: In order to protect the privacy of these 2 people, their names have been blanked out by the SCJ in her grounds and I also did the same in this Grounds of Judgment).

On 17.6.2020, at about 12.40 am, SP3 (the complainant in the s.385 10 case) was riding a motorcycle in Pekan Sg. Bayor, Selama, Perak when he was stopped by the Appellant (who was not wearing a uniform) and his colleagues. SP3 was not carrying any personal identification document at that time. The Appellant checked the former’s mobile telephone and found pornographic videos of a 15 woman and SP3 in the said telephone. The Appellant confiscated SP3’s mobile telephone and directed the former to get on the his (Appellant’s) motorcycle and follow him to Balai Polis Sg. Bayor (the balai). There, the Appellant questioned SP3 about the woman in the videos, whereby SP3 replied she was his fiancé (SP10). The 20 Appellant then told SP3 that he would have to come to the same balai at the same time, the following day if he wanted to get back his mobile telephone.

The next day on 18.6.2020, at 1.00 am SP3 went to the balai to 25 collect his mobile telephone. The Appellant asked SP3 to tell SP10 to come to Pekan Sg. Bayor. The Appellant together with SP3 went to town in a car driven by the Appellant and met with SP10. Then he was asked to direct her to get into the Appellant’s car where they 5 were going to the balai. SP3 was instructed by the Appellant to drive her car and to follow him, which SP3 did as he was told. When they reached Sekolah Rendah Sungai Bayor, the Appellant directed SP3 to get into his car while SP10 was told to drive her car behind his until they arrived at the balai. There, 2 army men got into the 5 Appellant’s car and they drove on until they reached a hall at the town. The Appellant dropped them off there and drove on to Balai Polis Selama (IPD Selama). At IPD Selama, he told SP3 to get down from his car. He then instructed SP10 to get into his car and proceeded to bring her into the compound of the IPD Selama while 10 SP3 was told to wait outside the gate of the police station.

The Appellant brought his car towards the back of the police station and parked it at a dark area which was deserted. He brought SP10 up to his office on the first floor where he asked for her particulars 15 and “interrogated” her for about 3 hours there. She alleged that the Appellant asked her about the videos and how to “settle her case” but she just kept quiet. He then threatened to call the Pejabat Agama and her father. She pleaded with him not to call the Pejabat Agama while the Appellant continued asking her about how to “settle 20 her case”. He then suggested that she could take off her clothes (get naked) for him.

The Appellant then called SP10’s father on her telephone but immediately cancelled the call. He asked her to be “his scandal” and 25 she played along by agreeing (mengiyakan). As they were leaving the office, SP10 alleged that the Appellant put his hand on her shoulder but she shrugged it off. She alleged further that he kissed 6 and molested her then took off her pants and penetrated her genital from behind.

Afterwards, the Appellant took SP10 to where SP3 was waiting. SP10 told SP3 that the Appellant wanted him to get into the latter’s 5 car. It was already 5.15 am at that time. SP3 followed the Appellant into the IPD Selama premises. It was SP3’s turn to go into his office at the first floor. There, SP3 alleged that the Appellant asked him about their case and how to “settle” it while SP3 apologised. The Appellant indicated that for this type of case the sum to be paid was 10 RM21,000.00 for SP3 and another RM8,000.00 for his fiancé. The Appellant proposed an amount of RM16,000.00 to settle the matter to which SP3 said he did not have such a large amount of money. They “negotiated” on the amount until lastly, the Appellant brought the figure down to RM10,800.00, where SP3 was supposed to pay 15 him RM300.00 monthly for 3 years (mengikat) until the amount was settled in full.

The Appellant asked SP3 to pay him RM500.00 upfront that night, failing which SP3 would not be released. SP3 said he did not have 20 any money on him but that his fiancé may have some. Thereafter, the Appellant brought SP3 out of IPD Selama in his car and they went to SP10’s car where she was waiting. The Appellant again asked SP10 to get into his car while SP3 drove her car to the balai in Sg. Bayor. There, SP10 got down from the Appellant’s car and 25 told SP3 that the Appellant wanted to see him. The Appellant asked SP3 where was the RM500.00 upfront money. SP3 requested for the money from SP10 but she only gave him RM300.00. SP3 then handed over the RM300.00 cash to the Appellant. The Appellant 7 told SP3 that he would have to pay him RM300.00 monthly and then finally returned the latter’s mobile telephone. Both of them were told to go home. The Appellant apparently had made copies of the videos and kept them in his own mobile telephone. 5 [14] After that night’s incident, SP3 had been communicating with the Appellant via WhatsApp regarding the “monthly instalment”. Meanwhile, he noticed SP10 was aloof and kept asking her what happened that night while she was in the Appellant’s office. SP10 did not want to tell him as she feared that her parents might find out. 10 Moreover, the couple was getting married. Finally, she relented after they quarrelled and told him that the Appellant had raped her. Thereafter, SP3 went to lodge a police report as per Sg. Bayor Report 257/20 on 26.6.2020 against the Appellant to enable the police to investigate the him. SP10 also lodged Selama Report 15 1494/20 pertaining to the rape incident. The Appellant was arrested on the same day at 10.30 pm and investigations were commenced against him and evidence gathered by the police. THE DEFENCE CASE 20 [15] The previous SCJ was satisfied that the prosecution has proved its case on a maximum evaluation of the evidence in respect of each ingredients of the 2 offences and called for the Appellant to enter his defence on both charges. The Appellant and 3 others gave evidence under oath for the defence case as follows: 25 SD1- Mohd Aman Bin Mustapha SD2- Siti Nurmilah Binti Mat Saad (wife) SD3- XXX (SP10’s mother SD4- Doctor Amirul Adib Bin Ahmad Zakhi

In her grounds of judgment, the learned SCJ had summarised the defence case as can be seen in pages 30 – 34. The defence version more or less was in line with the version given by SP3 and SP10. However, the defence version differed where SD2 was called to dispute the prosecution version. SD2 testified that she was with the 5 Appellant that night at the balai, an alibi of sorts. Nevertheless, this witness was never brought to the attention of the Investigation Officer and neither was any alibi notice filed. The Appellant denied that the rape incident ever happened and in regard to the extortion charge, the defence version was that the RM300.00 money was 10 given by SP3 so that the Appellant would delete the copies of the videos from his mobile telephone. In short, the defence version denied the prosecution version and disputed the rape incident because there was no corroboration of SP10’s story. Moreover, the prosecution did not adduce any medical evidence to prove there 15 was penetration; and her clothes that were seized by the police had been washed before that as she herself admitted.

Additionally, SP10 alleged during the incident the Appellant had wiped himself with some tissues and threw them purportedly in the 20 dustbin in his office. However, the forensic analysis of the used tissues collected from his office came out to be inconclusive as can be seen in the evidence of SP12. The prosecution did not call the doctor but only tendered the medical report to corroborate SP10’s testimony wherein the doctor (SD4) testified that he had only 25 conducted external examination. It must be borne in mind that according to SP10 she had washed her clothes after the incident and the report was only made more than a week later. EVALUATION AND FINDINGS OF THE COURT [18] The Petition of Appeal can be summarised as the following issues raised by the Appellant at the hearing of the appeals:

credibility of the prosecution witnesses, particularly SP3 and SP10;

(ii) uncorroborated evidence of the prosecution witnesses, particularly SP3 and SP10’s testimonies;

(iii) malicious motive of the main prosecution witnesses;

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

the SCJ had not exercised the bounden duty of maximum 10 evaluation of the evidence before the court. [19] It is trite law that an appellate court would not disturb the findings of the trial judge unless there are serious misdirections of fact and law, which I had found none and therefore, the conviction under s. 15 385 of the Penal Code was upheld. In Norisman Bin Rozali v PP [2015] 3 MLJ 125, the Court of Appeal held: “[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, 20 weighing and, for good reasons, either accept or reject the whole or any part of the evidence placed 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 25 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 analysis of that witness's evidence runs the risk of having his findings corrected on appeal. 30 [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 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).”. 5 [20] Despite not being the trier of fact at the prosecution stage, the learned SCJ did not shirk her duties where she had carefully weighed all the evidence before her, including the notes of proceedings and recordings of the prosecution stage. In 10 paragraphs 27 – 31 the SCJ had discussed the duty of the court at the end of the defence case and she had applied the correct principles of law. Then, the learned SCJ had dealt extensively with the evidence in regard to the rape charge in paragraphs 39 – 51 of her grounds of judgment. I could find no fault with her assessment 15 of the evidence, as she had not only discussed the demeanour of the relevant witnesses but also the requirements of the law in a charge of rape. The charge under s.376(2)(f) of the Penal Code 20 [21] This was a classic case of her story against his story, and so the prosecution called SP10’s friend to testify on this issue to corroborate her evidence that the former was indeed raped by the Appellant in his office during the wee hours of 18.6.2020. I had scrutinised the evidence of SP15 who told the court what SP10 had 25 confessed to her about the rape incident as follows: TPR : Apa yang polis tu buat apa dekat Syakila? SP15 : Dia cerita yang polis itu raba. TPR : Dia raba saja? Ada lagi yang lain? 30 Dia raba lepas tu dia buka seluar Syakila. Tapi waktu itu Syakila kata dia tak buka mata pun masa tu sebab dia daripada belakang sebab dia takut sangat. TPR : Kemudian? Yang itu saja dia cerita. 5 TPR : Yang buka seluar tu ada apa lagi dia cerita? Dia kata ada air mengalir dekat belakang punggung dia. [22] SP10 in her evidence said she was sure that the Appellant had inserted her penis into her vagina (kemaluan), although he 10 approached her from behind. The chemical analysis (P54) showed inconclusive evidence of DNA found on some of the tissues recovered from the Apellant’s office. There may have been some sexual act(s) in there but I did not find anything in SP15’s evidence that supported SP10’s version that the Appellant had penetrated her 15 vagina. Although SP15 stated that her friend would not lie, from SP15’s evidence above she stated “Yang itu saja dia cerita” but it stopped short of penetration. Therefore, I concluded that the important ingredient of rape had not been proved by the prosecution and agreed with the findings of the learned SCJ. 20 [23] The High Court as an appellate court does not have the advantage of observing the 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 25 findings made was perverse. In the case of Dato Mokhtar Hashim & Anor v PP [1983] 2 MLJ 232, the Court held: “(7) the credibility of a witness is primarily a matter for the trial judge. The functions of an Appellate Court, when dealing with a 30 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 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 5 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.”. [Emphasis added] 10 [24] The law in regard to sexual complaints provides there is no requirement of corroboration but there is a qualifier in that statement. In the case of PP v Mardai [1950] 16 MLJ 33 the court stated: “Whilst there is no rule of law in this country that in sexual offences the evidence 15 of the complainant must be corroborated, nevertheless it appears to me, as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant’s story. It would be sufficient, in my view, if that corroboration consisted only of a subsequent complaint by the complainant 20 herself provided that the statement implicated the accused and was made at the first reasonable opportunity after the commission of the offence.” [25] The learned SCJ had looked at the court video recordings of the proceedings and had seen the demeanour of the witnesses. I 25 agreed with paragraph 51 of the grounds of judgment: “51. Tiada peruntukkan undang-undang yang menyatakan bahawa keterangan mangsa di dalam kesalahan melibatkan jenayah seksual perlu disokong namun Mahkamah perlu sentiasa berhati-hati dalam mensabitkan kesalahan OKT tanpa keterangan sokongan melainkan keterangan mangsa itu 30 adalah sangat menyakinkan. Penilaian Mahkamah kepada keseluruhan keterangan mendapati terdapat keraguan sama ada terdapat kemasukan kemaluan OKT ke dalam kemaluan mangsa pada masa tersebut. Mahkamah juga berpendapat keterangan mangsa iaitu SP10 ini tidak bersifat “unusually convincing” yang mana Mahkamah boleh bergantung untuk mensabitkan OKT 35 dengan pertuduhan ini tanpa keterangan sokongan. Mahkamah berpendapat sabitan bagi pertuduhan di bawah seksyen 376(2)(f) di dalam kes ini adalah tidak selamat dan dengan itu Mahkamah telah melepaskan dan membebaskan OKT daripada pertuduhan tersebut.”. [26] I too did not find SP10 to be an unusually convincing in her account of the alleged rape incident. Moreover, she mentioned she was afraid that the Appellant might accuse her of seducing him first. Why would she think that? There was no appeal by the Respondent on my decision to uphold the acquittal. I now move on to consider the 5 evidence in regard to the charge under s. 385 of the Penal Code. The charge under s.385 of the Penal Code [27] Before analysing the evidence under this charge, it must be borne in mind that the prosecution had charged the Appellant for an 10 offence of putting fear upon SP3 and SP10, in order to commit extortion. He was not charged for extortion per se under s.383 of the Penal Code. Technically can a policeman be said to put fear upon a civilian in respect of a crime that the latter has allegedly committed? Yes, he can: PP v Johar [1965] 1 MLJ 139 15 (Singaporean case). [28] The provisions of ss.383 and 385 of the Penal Code have been reporduced below for ease of reference:

Extortion 20 Whoever intentionally puts any person in fear of any injury to that person or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion”.

Putting person in fear of injury in order to commit extortion 25 Whoever, in order to commit extortion, puts any person in fear, or attempts to put any person in fear of any injury, shall be punished with imprisonment for a term which may extend to seven years or with fine or with whipping or with any two of such punishments. [29] The ingredients of s. 385 of the Penal Code in this case are: i. that the accused has put a person in fear; and ii. that the act was done in order to commit extortion. [30] The prosecution has focused on the “putting fear” element in regard 5 to the Appellant’s acts. Although it appeared that from the charge, they have included the element of handing over the RM300.00 to the Appellant as an upfront payment for the RM10,800.00 (which the Appellant attempted to extort from SP3), I found that the Appellant has not been prejudiced by the charge and it has not 10 occasioned any miscarriage of justice. The fear that was put to SP3 and his fiancé was that their pornographic videos would be exposed to the public and more importantly, that the case would be referred to the Pejabat Agama for action to be taken against the couple for their pre-marital sexual relations, an offence under the Syariah law. 15 The Appellant’s act of putting fear on this couple was done in order to commit extortion i.e. to dishonestly obtain money from them. And which they had handed over RM300.00 to the Appellant after “negotiations”. 20 [31] The evidence in this regard can be seen, amongst others, in the testimony of SP10 as follows: TPR : Ada tak Aman ni minta dari puan atau Hafiz pada malam tu? SP10 : Dia tak minta dekat saya tapi dia minta dekat Hafiz duit. TPR : Macammana puan tahu yang dia minta duit kat Hafiz? 25 SP10 : Hafiz yang cakap. Dah sampai kat Balai Polis Sungai Bayor tak masuk dalam tunggu kat luar saja lepas tu Hafiz minta kat saya duit. Saya cakap “mana ada RM500.00”. Lepas tu Hafiz cakap “takpelah, RM300.00”. Lepas tu saya bagilah RM300.00 yang ada dalam dompet. TPR : Hafiz ada beritahu ke nak buat apa dengan duit tu? SP10 : Dia cakap nak bagi polis tu polis tu minta. Lepas tu saya bagilah, lepas tu Hafiz bagi kat polis tu. 5 [32] The details pertaining to how the offence was committed by the Appellant have been set out earlier in this Grounds of Judgment and I do not wish to repeat the same. 10 [33] The Appellant’s version of the s.385 charge can be seen in the summary of his evidence as per paragraphs 18 – 26 of her grounds of judgment. Then the SCJ discussed the duty of the court to evaluate the defence case which is that the accused need only raise a reasonable doubt upon the prosecution case. The SCJ in 15 paragraphs 33 – 38, then in paragraphs 55 – 69 of the grounds of judgment. One of the witnesses (SP9) was an army man who was on duty during the COVID-19 operations. He was cross-examined as follows: 20 PB : Namun begitu kamu ditunjukkan dengan satu video lucah yang terdapat dalam handphone tersebut, setuju? SP9: Setuju. PB : Jadi setuju saya katakan menyimpan video lucah dalam handphone juga merupakan satu kesalahan? 25 SP9: Setuju. PB : Jadi sebagai anggota polis apabila menemui satu kesalahan jenayah maka dia berhak untuk soal siasat mengenai video lucah tersebut, setuju? SP9: Setuju 30 [34] However, it is also pertinent to prosecution evidence i.e. the Appellant’s superior from IPD Selama (SP11) that the Appellant who worked at the Bahagian Hal Ehwal Awam (HEA) did not have any investigation powers. He would need to make a police report in regard to any items which he seized and refer the case to the 5 respective department. Then the Investigation Officer (IO) or Assistant Investigation Officer (AIO) will investigate the case and gather evidence. [35] But what did he do? He brought the 2 civilians separately into the 10 IPD Selama in the wee hours on 2 consecutive days to “interrogate” them for an ulterior motive, i.e. to commit extortion. After being satisfied that SP10 was not underaged, he did not leave the matter there because he tried to justify that they had committed a criminal offence by having the pornographic videos in their possession. The 15 Appellant’s contention was that they had behaved immorally but yet, he sent the videos to his own mobile telephone and did not forward the videos to the respective IO. He had put fear to these 2 people about what may happen to them if the matter was reported to the Pejabat Agama. SP10 was also threatened that her father would be 20 informed about the sex videos. Yet, he did not make any police report of the seizure of the pornographic videos to enable the Pejabat Agama to take over conduct of the investigation and he had the nerve to send copies of the sex videos to his own mobile telephone. 25 [36] SP8 testified that there was no such videos in the telephones that was given to her by SP13 (since the videos had been deleted earlier). However, SP13 confirmed the mobile telephones seized belonged to SP3 and the Appellant. But SP6 saw the videos when he was with the Appellant that night when SP3 was first stopped in Pekan Sg. Bayor. The Court noted that the defence kept referring the videos to the prosecution witnesses because the Appellant had copies of the sex videos in his possession. 5 [37] The manner in which the Appellant surreptitiously brought the couple (separately) into the IPD Selama using the rear side where the place was dark, in the early hours (after 12.00 am) showed that he had something to hide. If it was really an official business, why 10 did he tell SP3 to wait outside the gate (inside the car) and the same was asked of SP10 when SP3 was brought into the IPD Selama by the Appellant? This was evidence of conduct under s.8 of the Evidence Act 1950. In the case of Samuel John Marisinapen v PP [2018] 6 CLJ 526 the Court stated: 15 “Evidence of conduct is relevant under s. 8 of the Evidence Act 1950 if it influences or is influenced by any fact in issue or relevant fact, and whether it was a conduct antecedent or subsequent thereto. (See: Parlan Dadeh v. PP [2009] 1 CLJ 717 FC; [2008] 6 MLJ 19; [2008] MLRA 763). Sarkar on Evidence 20 15th edn says at p. 175: The conduct of party to a proceeding or his agent in reference to such proceeding at the time when the facts occurred out of which the proceeding arises, or in reference to any fact in issue or relevant fact, or the conduct of the complainant, is relevant; but the condition precedent to its admissibility as ‘conduct’ is that it must directly influence or be influenced by a 25 fact in issue or relevant fact and such conduct does not include action resulting from other causes or circumstances. It must be the essential complement of the act done or refused to be done. Conduct includes antecedent or subsequent conduct involving both actions and statements.” 30 [38] In regard to the evidence given by the Appellant and his wife (SD2) to deny the charge, the SCJ in her analysis had stated: “36. Penilaian Mahkamah kepada keterangan SD2 dan OKT, Mahkamah mendapati keterangan kedua-dua saksi ini adalah tidak konsisten berkenaan perjumpaan mereka pada malam tersebut. OKT dalam Pernyataan Bertulis (PSD1) di para 22 menyatakan semasa semasa membuat rondaan telah mendapat panggilan telefon daripada SD2 yang telah bertanyakan mengenai 5 keberadaan OKT dan ingin berjumpa dengan OKT. Walaubagaimanapun SD2 mengatakan pada malam tersebut beliau telah menerima panggilan telefon daripada OKT yang meminta SD2 menemani OKT di pejabat. SD2 juga di dalam keterangan beliau menyatakan bahawa pada masa tersebut OKT telah mengambil beliau dari rumah sewa beliau di Selama. Namun apabila 10 ditanyakan alamat rumah sewa beliau di Selama tersebut, SD2 mengatakan beliau tidak ingat. Mahkamah berpendapat sekiranya benar SD2 telah tinggal di rumah sewa di selama dan OKT telah mengambil SD2 dari rumah sewanya di Selama pada malam tersebut, adalah tidak munasabah bahawa SD2 tidak mengingati langsung alamat rumah sewa beliau di Selama tersebut. 15 37. Berdasarkan keterangan OKT dan SD2 di Mahkamah, SD2 adalah isteri kedua kepada OKT dan perkahwinan ini adalah dirahsiakan daripada pengetahuan ketua OKT kerana telah berkahwin tanpa kelulusan majikan yang menjadi satu kesalahan di dalam PDRM. OKT juga tidak memaklumkan kepada ASP Asikin (SP14) semasa rakaman percakapan OKT berkenaan kehadiran 20 SD2 pada malam tersebut semasa perjumpaan bersama SP3 dan SP10 di IPD Selama.

Perkahwinan antara OKT dan SD2 adalah dirahsiakan daripada pengetahuan ketua OKT di PDRM. Mahkamah berpendapat dalam keadaan perkahwinan tersebut adalah menjadi rahsia dan tidak didedahkan kepada 25 ketua OKT di dalam PDRM, adalah tidak munasabah untuk OKT mengatakan membawa SD2 ke pejabat beliau yang akan mendedahkan hubungan OKT dan SD2 tersebut. Penilaian, Mahkamah kepada semua keterangan, Mahkamah mendapati keterangan SD2 bahawa beliau berada bersama OKT pada 18.6.2020 di IPD Selama semasa OKT berjumpa dengan SP3 dan SP10 30 adalah tidak munasabah dan tidak dipercayai oleh Mahkamah.”. [39] The learned SCJ then continued in her analysis which I had also come to the same conclusion as follows: “64. Pembelaan OKT adalah bahawa SP3 dan SP10 yang menawarkan 35 wang untuk OKT memadam video tersebut tetapi telah ditolak oleh OKT dan bukan OKT yang meminta wang daripada SP3. OKT mengatakan SP3 berniat untuk mengenakan OKT dan membuat tuduhan ini terhadap OKT. Di dalam kes ini OKT yang telah bertindak untuk menyimpan telefon bimbit SP3 yang mengandungi video lucah SP3 bersama tunangnya. OKT mengetahui 40 kewujudan video tersebut semasa telefon bimbit SP3 tersebut dirampas iaitu pada 17.6.2020 semasa SP3 ditahan di tepi jalan Sungai Bayor. Sebagai seorang anggota polis OKT tidak membuat sebarang laporan polis atau borang pemeriksaan ke atas rampasan telefon bimbit SP3 tersebut. Malahan OKT telah menyuruh SP3 untuk datang semula pada keesokan harinya dengan 5 membawa tunangnya. Apabila SP3 telah membawa SP10 berjumpa dengan OKT di pekan Sungai Bayor dan OKT telah berjumpa dengan SP10 di pekan Sungai Bayor dan mendapati SP10 bukanlah seorang yang di bawah umur, hal berkenaan video tersebut tidak berakhir di situ. … 10

Mahkamah berpendapat sekiranya benar keterangan OKT bahawa telah menyerahkan telefon bimbit SP3 semasa berjumpa dengan SP10 di pekan Sungai Bayor, maka kenapakah OKT perlu berjumpa dengan SP3 dan SP10 di IPD Selama selepas itu. OKT sendiri mengatakan di IPD Selama mereka telah berbincang berkenaan video tersebut. Sekiranya telefon bimbit telah 15 diserahkan kepada SP3 dan OKT tidak mempunyai apa-apa niat untuk menggunakan video tersebut terhadap SP3, maka tiada sebab untuk OKT bertemu dan berbincang dengan SP3 dan SP10 di IPD Selama berkenaan video tersebut dalam keadaan tiada laporan polis dibuat berkenaan kewujudan video tersebut oleh OKT dan OKT sendiri bukanlah pegawai penyiasat bagi kes 20 tersebut.

Setelah meneliti dan mempertimbangkan keseluruhan keterangan pembelaaan Mahkamah mendapati keterangan SP3 adalah kekal kukuh dan tidak tercabar bahawa semasa OKT berjumpa dengan SP3 di IPD Selama OKT 25 telah meminta sejumlah wang daripada SP3 dan seolah-olah tidak mahu melepaskan SP3 sekiranya tidak membuat bayaran. SP3 hanya dibawa keluar daripada IPD Selama selepas SP3 mengatakan tunang beliau mungkin mempunyai wang. Seterusnya SP3 telah menyerahkan wang sebanyak RM300/- tersebut di hadapan balai polis Sungai Bayor setelah 30 mendapatkannya daripada SP10. Keterangan SP3 adalah konsisten dengan keterangan SP10 bahawa wang tersebut telah diserahkan di hadapan Balai Polis Sungai Bayor. Keterangan SP3 juga adalah bahawa telefon bimbit SP3 hanya dikembalikan di hadapan Balai Polis Sungai Bayor selepas SP3 menyerahkan RM300/- kepada OKT.”. 35 [40] From the above, I did not find that the SCJ had failed to draw a favourable inference in respect of the Appellant (when he gave evidence), and to give him the benefit of the doubt. With respect, I 40 have to say there was no merit at all in this argument because there was simply no favourable inference that could be drawn in his favour when I perused the evidence adduced by the prosecution and defence. It was further contended that the SCJ failed to appreciate and consider the defence case and imposed a higher burden on the defence. Upon perusal of the grounds of judgment, the learned SCJ 5 had also properly considered the defence raised by the Appellant and compared it with the evidence of the prosecution witnesses. The learned SCJ found that SP3 being the star witness of the prosecution case had withstood vigorous cross-examination of the Appellant’s counsel and was consistent in his answers. Therefore, 10 the SCJ found that the defence did not raise any reasonable doubt on the prosecution case and that the prosecution had proved its case beyond a reasonable doubt. Again, I did not find any merit on this argument because the defence was a bare denial and in some parts, an afterthought. 15 [41] In PP v. Mohd Radzi Bin Abu Bakar [2005] 6 MLJ 393 the court discussed the principles in the case of Mat v PP [1963] 1 MLJ 263 in regard to the court’s duty to consider the defence evidence. The Federal Court also touched upon the credibility of witnesses and 20 held that: “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 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 25 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] 1 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 30 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 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 offered practically no reason why the defence, notwithstanding its falsity and unconvincing nature, had failed to 5 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.” [Emphasis added] 10 [42] I also refer to the case of PP v Somasundram Rajasegran & Anor [2016] 1 LNS 1067 where the learned Judge referred to the case of PP v Iskandar Bin Mohamad Yusof [2006] 5 MLJ 559 in respect of the duty of the Court to re-evaluate the prosecution evidence in light of the defence case as follows: 15 [105] Apart from the duty imposed by a trial court at the conclusion of the whole case as described already, a trial court must carry out a maximum re-evaluation of the prosecution's case but this time considered and tested as against the sworn evidence given by the accused. This was of course, something that was not possible to do at the close of the prosecution case. 20 [106] In Public Prosecutor v. Iskandar bin Mohamad Yusof [2006] 1 LNS 34; [2006] 5 MLJ 559, it was held by Suriyadi J (as he then was): [11] At the defence stage, a different scenario expressed itself. The prosecution's story had to be re-evaluated maximum-like, but this time padded by the additional defence's version, which was given 25 under oath. At the end of the accused person's case, unless the prosecution succeeded at convincing me beyond reasonable doubt, he must be acquitted. All the latter needed to do was to weaken the prosecution's case on a balance of probability." (emphasis added) 30 [Emphasis added] [43] This Court too found that the total weight of the evidence against the Appellant enabled the Court to reach a just decision having considered all the circumstances of the case, which in my view did 35 not merit appellate intervention at all. The Court has evaluated all the evidence in the volumnous Records of Appeal and perused the detailed Grounds of Judgment of the SCJ as well as considered submissions by both parties. Unfortunately, I could not agree with the Appellant’s submissions as the overall evidence were 5 overwhelmingly against the Appellant and this Court agreed with the findings and rationale of the SCJ whom had the benefit of observing the demeanour of the witnesses before her. The defence of bare denial did not raise any doubt at all upon the prosecution case: 10 [44] Having said that, the Court agreed with the findings and decision of the SCJ and did not see any reason to disturb the finding of guilt against the Appellant in regard to both charges preferred by the prosecution. If there was any irregularity in the charge under s.385, it is curable under the provision of s.422 of the CPC as there has 15 been no miscarriage of justice since the Appellant is not confused on what charge he has to face. This Court affirmed the conviction recorded against the Appellant as proper and safe in light of the overwhelming evidence against him. The appeal against conviction on the s.385 of the Penal Code was accordingly dismissed. The 20 appeal against acquittal of the charge under s.376(2)(f) of the Penal Code was also dismissed. APPEAL AGAINST SENTENCE [45] The prosecution cross-appealed on sentence as it was their 25 contention that the sentence of 3 years was manifestly inadequate given the circumstances of the case and more so the Appellant was a policeman who had been entrusted to serve the public faithfully. Moreover, this case had gone on for full trial and many witnesses had been called to testify in court. In the case of Yusmarin Samsuddin v PP [1999] 4 CLJ 391, the court decided: “The principles of sentencing have long been entrenched and well settled in our criminal law jurisprudence and a court seised with such a jurisdiction is 5 empowered to take into account the following considerations; (1) the extent and seriousness of the offence committed; (2) the guilty person’s antecedents and

the public interest factor”. [46] The prosecution submitted that the Appellant did not show any 10 remorse and blamed SP3 for making and being in possession of the sex videos, that they were both of low morale On behalf of the Appellant, it was submitted that the Court should impose a lighter sentence upon the Appellant due to his antecedents and that he was a first offender. . He had been in service for about 10 years prior to 15 his arrest, at that time he was a low-ranking policeman. [47] It is trite that an appellate court would be slow to interfere or disturb a sentence passed by a lower court unless it is manifestly wrong in the sense of being illegal or unsuitable to the proved facts and 20 circumstances: PP v Mohamed Nor & Ors [ 1985] 2 MLJ 200. [48] In my view, the Appellant brought this problem onto himself, he took the law into his own hands. He admitted in cross-examination: TPR : Kamu ada beritahu dia sebab apa kamu pegang telefon bimbit dia? 25 SD1: Ada. TPR : Sebab apa? SD1 : Sebagai jaminan untuk dia datang ke Balai Polis Sungai Bayor. TPR : Boleh kamu beritahu Mahkamah apa prosedur PDRM yang membolehkan kita menyimpan telefon bimbit sebagai jaminan untuk hadir ke balai polis? SD1 : Kalau ikut prosedur tidak ada. TPR : Jadi tindakan kamu untuk mengawal telefon Mohd Hafiz ini tidak 5