Pendakwa Raya v MOHD ISMAIL BIN ISHAK (JA-41LB-4-08/2025)

This is the Prosecution's Appeal against the Acquittal of the Respondent at the end of the Prosecution's case.

The Learned Magistrate who heard the Trial acquitted and discharged the Respondent, applying section 173(f) of the Criminal Procedure Code ("CPC") on the grounds that the Prosecution had failed to prove a Prima Facie case at the close of the Prosecution's case.

In the Court below, the Respondent was charged with an offence of "assault or use of criminal force to a person with intent to outrage modesty" under section 354 of the Penal Code ("PC"), which reads as follows: "Whoever assaults or uses criminal force to any person, intending to outrage or knowing it will be likely that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to ten years, or with fine, or with whipping, or with any two of such punishments."

The Respondent was charged on 9 August 2023 and acquitted on 5 August 2025.

The Charge proffered reads: "Bahawa kamu pada 28/09/2020 jam lebih kurang 12.45 tengahari, bertempat di ruangan pejabat bahagian perkhidmatan farmasi negeri johor, jalan persiaran permai, kempas baru, kempas, dalam daerah johor bahru Utara, dalam negeri johor, telah menggunakan kekerasan jenayah terhadap penama : noor ezzah syahidah binti konchong (kpt no. 890708-01-6348) , dengan maksud untuk mencabul kehormatannya, dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum dibawah seksyen 354 kanun keseksaan. Hukuman - hendaklah dihukum dengan pemenjaraan selama tempoh yang boleh sampai sepuluh tahun, atau dengan denda, atau dengan sebat, atau dengan mana-mana dua daripada hukuman-hukuman itu".

Section 173 of the CPC governs the conduct of a criminal trial. Under section 173(f) of the CPC, if at the close of the Prosecution's case, the Court finds that no case has been made out which, if unrebutted, would warrant a conviction, the Court shall record an Order of Acquittal.

Section 173(f)(i) of the CPC states as follows: "When the case for the prosecution is concluded the Court shall consider whether the prosecution has made out a prima facie case against the accused."

Conversely, where the Court is satisfied that the Prosecution has made out a case, the Accused must be called upon to enter his Defence under section 173(i) of the CPC.

The Federal Court in Balachandran v PP [2005] 2 MLJ 301 said in the opening sentence to paragraph 23 as follows: "As the accused can be convicted on the prima facie evidence it must have reached a standard which is capable of supporting a conviction beyond reasonable doubt".

At the close of the Prosecution's case, the Trial Court is dutybound to undertake a maximum evaluation of the evidence when deciding whether to call for the Defence. The Court must assess the credibility of the witnesses and draw the necessary inferences from the evidence admitted by the Prosecution. This involves assessing whether the admitted evidence draws two or more inferences. If so, then the inference that is more favourable to the Accused must be applied in the Accused's favour: PP v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393, where it was stated as follows: "What is required of a subordinate court and the High Court under the amended sections is to call for the defence when it is satisfied that a prima facie case has been made out at the close of the prosecution case. This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call on the accused to enter upon his or her defence. It involves an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution evidence admits of two or more inferences, one of which is in the accused's favour, then it is the duty of the court to draw the inference that is favourable to the accused".

The Trial Judge must conduct a maximum evaluation of the Prosecution's evidence. If it is concluded that a Prima Facie case is not made out, then an Acquittal must be ordered. If the Trial Court finds that a Prima Facie case is made out, then the Accused must be called to enter his defence. Hence, if the Accused elects to remain silent, he must be convicted. The question to ask is, if the Accused elects to remain silent, whether the Trial Judge is prepared to convict. If yes, then the Defence must be called. C. The Role of the Court Sitting in an Appellate Capacity

A Court sitting in an Appellate capacity must be slow to disturb findings of fact made by the Trial Court, which had the advantage of seeing and hearing the witnesses, unless such findings result in a miscarriage of justice.

In Herchun Singh v PP [1969] 1 MLRA 382, the Federal Court said, at the end of paragraph 9: "An appellate court should be slow in disturbing such finding of fact arrived at by the judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding: see Sheo Swarup v. King-Emperor AIR 1934 PC 227. Hence, this case is distinguishable from Ah Mee v Public Prosecutor [1967] 1 MLRA 291; [1967] 1 MLJ 220, cited to us in argument, where the complainant clearly gave the number of her assailant's car as M 6049, a contradiction for which she and no other person could have been held responsible." See: Mohd Shukri Lah v PP [2014] CLJU 671 at paragraph 30.

However, when hearing an Appeal against an Acquittal entered at the close of the Prosecution's case, the role of an Appellate Court is not to reassess the evidence as if conducting a Retrial, but to determine whether the Trial Court correctly applied the legal test for a Prima Facie case.

The Appellate Court must ask whether, taking the Prosecution evidence at its highest and without weighing credibility or resolving conflicts, there was evidence upon which a reasonable Court could properly convict, if the Accused chose to remain silent.

Intervention is warranted only if the Trial Court misdirected itself in law, applied the wrong test, or reached a conclusion that no reasonable Court could have reached on the evidence. If such an error is shown, the Appellate Court may set aside the Acquittal and order that the Defence be called or, where appropriate, direct a Retrial.

PP v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393

Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301

The decision of the Learned Magistrate must be assessed to ascertain whether the Learned Magistrate applied the correct legal test, namely whether a maximum evaluation of all the Prosecution evidence was undertaken and whether, if such evidence were left unrebutted and unexplained, it would be sufficient to justify a conviction on each element of the offence, recognising that the Defence, if called, may yet displace that conclusion. D. The Elements to be Proved for section 354 of the PC

Section 354 of the PC is a charge of intentionally outraging modesty by an assault or by criminal force.

This section does not differentiate between a male and a female victim: Vasutheva a/l PK Menon v PP [2016] 1 AMR 821; and neither is the age of the victim an essential ingredient of the offence: Mohammad Izwan Ishak v PP [2009] 10 CLJ 202.

The essential ingredient to be proved is that the Accused applied criminal force or assault on the victim with the intention to outrage her modesty.

In Ismail v PP [1963] 1 MLJ 208, the Accused had RM5.00 and uttered the words, "Even if you are married take this money". The High Court quashed the conviction because the words uttered, taken together with the offer of RM5.00, were vague as there was no evidence to suggest that the Accused intended to use criminal force.

The term 'outraging modesty' is not defined anywhere in the PC. The judgment of Bachawat J in the Indian case of State of Punjab v Major Singh, AIR [1967] SC 63, provides a working explanation of the term, which merits reproduction: "The Code does not define "modesty". What then is a woman's modesty? I think that the essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under s. 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as, for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot; she may be under the spell of anaesthesia; she may be sleeping; she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section. A female of tender age stands on a somewhat different footing. Her body is immature, and her sexual powers are dormant. In this case, the victim is a baby seven and half months old. She has not yet developed a sense of shame and has no awareness of sex. Nevertheless, from her very birth she possesses the modesty which is the attribute of her sex. But cases must be rare indeed where the offender can be shown to have acted with the intention of outraging her modesty. Rarely does a normal man use criminal force to an infant girl for satisfying his lust." [Emphasis added].

On our shores, the Court in Zulkifli Hashim v PP [2017] 1 LNS 1768 [CLJU 1768] observed that it is for the Court to decide what amounts to outraging modesty given that the term is not defined in the PC. In this case, the Learned Judge Abu Bakar Katar also referred to the judgment in State of Punjab v Major Singh and referred to the judgment of AK Sarkar CJ in that case where he said: "The test of the outrage of modesty must, therefore, be whether a reasonable man will think that the act of the offender was intended to or was known to be likely to outrage the modesty of the woman. In considering the question, he must imagine the woman to be a reasonable woman and keep in view all circumstances concerning her, such as, her station and way of life and the known notions of modesty of such a woman. The expression 'outrage her modesty' must be read with the words 'intending to or knowing it to be likely that he will'. So read, it would appear that though the modesty to be considered is of the woman concerned, the word 'her' was not used to indicate her reaction. Read all together, the words indicate an act done with the intention or knowledge that it was likely to outrage the woman's modesty, the emphasis being on the intention and knowledge."

In the above case, the Court affirmed the conviction and sentence where the Accused was convicted of touching the victim's armpit and breast.

Other examples of case law [not exhaustive] where Convictions have been made in cases under section 354 of the PC are as follows:

PP v Kamarul Azamin bin Mohamed (and another appeal) [2021] 4 AMR 721: The Court held where the Accused and victim were both fully clothed and the Accused had placed his hand on the victim's 'membrum virile" and made the victim do the same was an offence of outraging modesty under section 354 of the PC though not an offence of gross indecency under section 377E of the PC.

In Bharuddin Mat Nor v PP [2020] 7 CLJ 388: The Accused was guilty of outraging the modesty of his 12-year-old child when he had placed his hand under her hospital gown and touched her breast, armpit, and stomach.

In the Singapore case of Kwan Peng Hong v PP [2000] SGHC 164, The Accused was convicted of touching the victim's right breast on a bus.

Delay is a factor to be considered, and it is not fatal if there is a reasonable explanation. In Azizan Ibrahim v PP [2016] 6 CLJ 240, the Accused had threatened the victim by telling her that he would send a letter to her mother informing her mother that she had been suspended from her University for a semester. Due to this threat, the victim only lodged a report some 13 days after the incident. The High Court held that this explanation was reasonable and held that the delay was not fatal.

In Lim Chee Soon v PP [2016] 1 LNS 1347, the victim only lodged a report the next day. The High Court said that this was reasonable as the victim would have had time to overcome her emotional distress and anger, and after she had conferred with her father and mother.

The crux of the grounds given by the Learned Magistrate in acquitting and discharging the Respondent can be summarised as follows:

The Complainant's ("SP1") evidence lacked credibility, and she was not unusually convincing; there was no independent corroborating evidence.

SP1's conduct after the alleged incident undermined her complaint, as she said she had reported the incident to her superiors but did not inform her husband ("SP3"), who found out three years later after reading WhatsApp messages between SP1 and SP4.

There was no reasonable explanation for the delay in reporting. This three-year delay was inordinately long and suspicious, as it was only after SP3 was arrested on 9 January 2023 that SP1 lodged a report on 10 January 2023 about the incident. The timing of the complaint raises suspicion of motive and affects the inherent probability of the testimony.

Witnesses allegedly informed at the material time were not called to corroborate SP1's testimony.

A co-worker ("SP2"), SP3, a friend of the victim ("SP4") and another co-worker ("SP6") were not independent corroborative witnesses.

The Investigating Officer's ("SP7") testimony, after being recalled by the Court, was that her investigation was incomplete and ineffective.

Based on the above, the Learned Magistrate was not prepared to convict on Prosecution evidence alone.

Before proceeding to address the grounds, reason and submissions of the parties, it is pertinent to note that the Learned Magistrate had, at the onset of her Judgment (at paragraph 4) addressed her mind to the method of assessing whether a Prima Facie case had been established by referring to section 173(f) of the CPC and considering the advice of the Federal Court in PP v Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457.

The Learned Magistrate also referred to the decision in PP v Mohd Pauzi bin Hassan [2018] 1 CLJU 1489 on the elements required to be proven for an offence under section 354 of the PC. This decision lays out three elements, namely:

The criminal act is carried out against a male or a female.

It was carried out against the victim.

That there was an intention to outrage modesty or knowing it would, by the act, outrage modesty.

The Learned Magistrate relied on the decisions of Nor Hafiz Hanafi v PP [2024] CLJU 1082 and Alif Mustadzar Ahmad v PP [2022] 1 LNS 501.

In Nor Hafiz Hanafi, the Learned Judge referred to the minority judgment in the Court of Appeal decision in Yong Choo Kiong v PP [2024] 5 CLJ 69, where, at paragraph 77 of the decision, it is stated as follows: "Particularly, in sexual offence cases, experience has shown that people who allege that they have been raped, sometimes, and for various reasons, create false stories. Such allegations are easy to make and frequently very difficult to refute even by a person who is entirely innocent. See PP lwn. Mohamad Malek Ridhzuan Che Hassan [2013] 8 CLJ 359 and PP v. Emran Nasir [1986] CLJU 69; [1986] CLJU 69; [1986] 1 LNS 69."

With great respect, I find myself unable to accept this proposition for the following reasons:

It is a minority view.

Only the judgment of the majority can form the ratio decidendi.

In any event, it is an obiter statement and premised on experience and not based on cogent legal or even psychological or medical evidence.

In the context of the present case, the decision of PP v Mohamad Malek Ridhzuan Che Hassan [2013] 8 CLJ 359 cited in Yong Choo Kiong stands for the proposition that where the evidence of a victim in a sexual offence matter is credible and unusually convincing, the Court can rely on this evidence solely without the need for corroboration.

Similarly, in PP v Emran Nasir [1986] CLJU 69, the Court held that "evidence of distress of the victim of a sexual offence soon after the offence can be regarded as corroboration."

In the present case, the earliest complaint of the alleged offence was three years after the incident. The testimony from SP1 does not evidence distress "soon after the incident" as seen in PP v Emran Nasir above. It cannot, therefore, be said that there was any corroboration present. The complaint to her superior, which could be taken as a previous consistent statement under section 157 of the Evidence Act 1950, remains uncorroborated as the superior was not called to give evidence, thereby denying the Respondent the opportunity to cross-examine and to test the veracity of the alleged complaint to her superior.

Section 157 Evidence Act reads: "In order to corroborate the testimony of a witness, any former statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved."

A previous statement in this regard is the alleged statement by the victim to her superior, made soon after the incident. It may be used to show consistency, given that the victim made her report three years after the fact. However, other than the words of the victim, there is no cogent evidence to show that the statement was, in fact, made. Hence, no weight under section 157 Evidence Act 1950 can be placed on the statement.

Although section 157 of the Evidence Act 1950 states that a previous statement can be used to corroborate a later statement, it is only to show consistency and is evaluated for weight. Corroboration in the legal sense must be testimony from an independent source. - Mohd Ali v PP [1962] MLJ 230 at 231, Ong J [as he then was] said: "It will not be out of place here to say a few words about section 157 of the Evidence Ordinance. Admissibility of a previous statement under that section must not be confused with the weight to be given to it. Corroboration, strictly speaking, means independent corroboration as explained in R v Baskerville [1916] 2 KB 658. In my opinion, true corroboration by independent evidence from an extraneous source should be distinguished from "corroboration" as it appears in section 157, which rests on the principle that consistency between a previous statement by a witness and his present evidence may afford some ground for believing him. The value of such a statement as corroboration may be infinitesimal, as in the majority of cases it is. On the other hand, by reason of the abundance of detail it may contain as to the facts and circumstances surrounding any relevant transaction, it may be capable of being cross-checked for truthfulness against other relevant evidence, in which case, of course, it may be effective corroboration, but only because it has been shown to be true."

The Learned Magistrate had cited the decisions of Nor Hafiz Hanafi v PP [2024] CLJU 1082 and Alif Mustadzar Ahmad v PP [2022] 1 LNS 501.

This Court has already stated its opinion on Nor Hafiz Hanafi above. As for Alif Mustadzar, the victim took a week to report the incident. The victim was the sole witness, and as such, corroborative evidence was essential. The Court in that case held that the testimonies of SP2, SP3, and SP4, who were presented as supporting witnesses, did not directly confirm the incident; rather, their knowledge of it days later or their observations of the victim's demeanour after the fact were premised on what the victim told them. The week-long delay in reporting the incident to the police or her superiors was deemed inconsistent with the seriousness of the alleged act. The Court in that case also stated that a witness being unshaken during cross-examination is not the sole determinant of credibility; the inherent probability of the facts must also be considered.

The issue of corroboration is also considered with respect to the evidence of SP2, SP3, SP4, and SP6, as set out in paragraph 44 below.

In the present case, the Magistrate's evaluation of whether SP1's evidence met the 'unusually convincing' standard must be examined in the context of the following considerations:

Where the evidence of the Complainant, especially in a sexual offence, is without corroboration, such evidence must be unusually convincing and exceptionally credible before a Court can accept and find it to be credible enough to convict.

The Prosecution cited PP v Muhammad Liton Mohammed Syeed Mallik [2008] 5 SLR 601 and PP v Mohammad Malek Ridhzuan Che Hassan [2014] 1 MLJ 363 in this regard. i. In PP v Muhammad Liton Mohammed Syeed Mallik [2008] 5 SLR 601, the Court said of the 'unusually convincing' test "... testimony that, when weighed against the overall backdrop of the available facts and circumstances, contains that ring of truth which leaves the court satisfied that no reasonable doubt exists in favour of the accused." ii. PP v Mohammad Malek Ridhzuan Che Hassan [2014] 1 MLJ 363, the Court of Appeal also spoke of the 'unusually convincing' test and said as follows, quoting Pubic Prosecutor v Mardai [1950] 1 MLJ 33: Whilst there is no rule of law in this country that in sexual offences the evidence 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."

The Learned Magistrate relied on the decision of Roslan bin Mat Nor J in Lim Yoke Pin v PP [2025] CLJU 1958, who in turn relied on the decision of the celebrated Singapore jurist Yong Pung How in Teo Keng Pong v Public Prosecutor [996] 3 SLR 329, where at paragraph 47, the Learned Judge said: "Jika ditelusuri istilah luar biasa meyakinkan dalam keputusankeputusan Mahkamah seperti di atas ia telah dirumuskan denganmenarik dalam kes Teo Keng Pong v. Public Prosecutor [1996] 3 SLR 329 di mana istilah luar biasa meyakinkan telah dinyatakan oleh YAA Yong Pung How CJ seperti yang berikut: "I would add that there is nothing magical about the words 'unusually convincing.' They are but another way of saying that the witness's testimony was so convincing that the prosecution's case was proven beyond reasonable doubt, solely on the basis of that evidence."

The Prosecution argued that the evidence of the SP1 was credible and convincing and had a 'ring of truth'.

Prosecution raised four points to try to persuade this Court that the Learned Magistrate fell into error.

That SP1 could not recall the number of employees working at the time of the alleged offence

The Prosecution submitted that the failure to recall the names of the employees present on that day is irrelevant, as SP1 was consistent in giving evidence regarding the placement of the cubicles at the office, which evidence was corroborated by photographs.

(ii) The Prosecution relied on Konrad Prosch v PP [2021] 2 MLJ 451, where the Court held that the failure of the Defence to provide details about an alleged person named "Mike" caused the police to be unable to investigate this person or address the veracity of the defence raised.

(iii) The Respondent, on the other hand, argued that SP1's credibility was impaired by her failure to recall basic details at the time of the alleged offence, such as the number and names of co-workers present; the failure to react at the time by shouting or resisting; and her three-year delay in lodging a police report.

(iv) Upon a perusal of the grounds of Judgment and a reading of the authority of Konrad Prosch, there is no error committed by the Learned Magistrate.

SP1's ability to recall the placement of the cubicles and partitions in her office is easily explained. SP1 had been working there for some time and would have been looking at the same placement and partitions day in, day out, and this memory would always remain.

(vi) On the other hand, the alleged offence occurred during the COVID-19 era, when not all employees were physically in the office every day. Physical working hours were divided among employees, and only those on the roster for the day would be at the office, with others working from home. This is significant as it would easily explain why SP1 was unable to name the co-workers present on the day in question.

(vii) Konrad Prosch's decision does not aid the Prosecution. In that case, as the Court found that the failure by the Accused to furnish details of the person named 'Mike' caused the police to be unable to investigate the allegation that 'Mike' was involved.

(viii)Here, the failure by SP1 to name any of her fellow employees present that day clearly tied the hands of the police in their investigation and consequently affected their ability to obtain corroborating evidence from such witnesses.

(ix) Hence, on this first point, this Court agrees with the Learned Magistrate.

The inchoate nature of the evidence and the incompleteness of SP7's investigations

The point made by the Prosecution here is that the inability of SP7 to state with any clarity who was working on the day in question was immaterial to the issue at hand.

(ii) However, even if that was the case, a perusal of the evidence of SP7 in Cross-Examination (as referred to by the Learned Magistrate at page 21 of Enclosure 5) shows that SP7 was unable to say why the report was made only after three years.

(iii) SP7 was unable to recall whether SP1 had made any statement explaining why she took 3 years to lodge the report.

(iv) SP 7 was also unable to recall that the Respondent had lodged a police report denying the allegation.

Although she agreed that there was a Duty Roster of employees at SP1's workplace, she did not obtain this Roster. This Roster would have shown who was working on the day in question, and these persons could have been questioned to elicit pertinent information that may corroborate or disprove the allegation by SP1.

(vi) This evidence showed a lack of an in-depth investigation.

(vii) In this regard, the Learned Magistrate said that although corroborative evidence was required, the Learned Magistrate correctly addressed the point that it was not the case that corroborative evidence was mandatory if the evidence of the victim was unusually convincing.

(viii) In making her assessment, the Learned Magistrate found that SP1's evidence was not unusually convincing and therefore, she correctly went on to consider whether there was corroboration.

That SP1 did not scream or brush away the Respondent's hand, but instead carried on working thereafter

In this regard, the Prosecution submits that the Learned Magistrate erred in not considering the totality of the evidence when making her decision.

(ii) The Prosecution submits that SP1 said that she was in shock after the incident and did not know what to do.

(iii) The fact that the victim failed to react at the time by shouting or resisting does not mean that the incident did not occur.

(iv) The expectation that the victim was in any state of mind to react at all, and to hold her lack of reaction to be a tangible justification that the allegation does not stand, cannot have weight, as there are too many variables to consider, including the specific circumstances, the victim's state of mind, and the psychological consideration of "fight, flight or freeze".

These matters were not raised either by the Prosecution or the Defence, and this therefore limits any trial Court's ability to make an informed conclusion. There ought to have been some independent evidence proffered to address this type of behaviour.

(vi) Although the Prosecution submitted that shock could explain this, no independent evidence was adduced to support this contention. This Court finds that, in any event, the Learned Magistrate did not err in this regard in making her decision.

(vii) On the question about who she informed that the incident had occurred, the victim said, "Saya tak maklumkan kepada suami saya atau sesiapa sebab saya susah nak percaya pada orang." [Page 14 Rekod Rayuan Jilid 2A, Enclosure 6].

(viii)The fact that the victim did not inform anyone about the incident at the time it occurred, including SP3, impacted the Prosecution's ability to produce corroborative evidence of the incident.

Lodging a police report after three years

The issue of delay has been addressed above. The analysis of Alif Mustadzar's authority is relevant here.

(ii) The only point to consider is whether SP1 provided a reasonable explanation for the clear delay, given the seriousness of the offence.

(iii) In the cases referred to above, the delay ranged from a day to about a week. This is in stark contrast to the present case, where the delay is three years!

(iv) SP1 stated that she initially wanted to lodge a report but was advised by her superior not to do so as there was no evidence.

This person was not called as a witness.

(vi) This uncorroborated explanation, therefore, cannot be accepted as a reasonable explanation.

(vii) If no evidence existed at the material time, the Court is left without any satisfactory explanation as to what new evidential material arose after three years.

(viii)What is clear from the chronology of events is that SP1 lodged a report the day after the Respondent lodged a report complaining about SP3's conduct and denying the allegations made by SP3.

(ix) The evidence showed that SP7 did not investigate the reasons for the delay.

The authorities cited by the Prosecution state the principle that a delay in lodging a report is not, per se, fatal, but the reasons for the delay must be considered.

(xi) On the facts, the explanation or lack of explanation (in this case) for the delay was not reasonable.

The issue surrounding SP2, SP3, SP4 and SP6

SP2 gave evidence that she was informed of the incident a few days after it happened.

SP3 stumbled upon the information while reading WhatsApp messages exchanged between SP1 and SP4. This was three years after the incident.

SP6 said he was informed about the incident by SP1, three months after the fact.

The evidence of SP2, SP3, SP4, and SP6 was rejected by the Learned Magistrate, as although it seemed to corroborate the Charge, the testimony was not independent corroborative evidence, since it came from events narrated by SP1 to them. See: R v Baskerville [1916] 2 KB 658.

These witnesses were not at the scene at the material time and did not witness the incident. Their evidence is not independent; it comes from the primary source: the victim.

There is evidence from these witnesses about what SP1 allegedly told them and what they perceived SP1's mental state to be.The opinion of these witnesses was formed after SP1 told them what allegedly happened.

The difficulty with this evidence, as decided by the Learned Magistrate, is that the perception was obtained based on what SP1 told them and hence, whatever testimony of these witnesses came from SP1 and is not independent corroborative evidence, following R v Baskerville [above]

Another piece of evidence against SP1 is SP7's statement that her investigation diary was incomplete and not updated. This incomplete investigation shows there may have been evidence that could have either exculpated the Respondent or been damning against the Respondent.

The Learned Magistrate referred to Lim Yoke Pin on this point on the 'unusually convincing' test. The prosecution cited Aziz Muhammad Din v PP [1996] 5 MLJ 473. A reading of both decisions shows that both decisions are in conformity with each other on the 'unusually convincing' test.

Did the Prosecution prove all the elements of section 354 of the PC

Having carefully considered the grounds of judgment of the Court below and the evidence on record, and noting that the learned Magistrate had correctly directed her mind to the applicable legal principles governing the assessment of whether a prima facie case had been established, as well as to the essential elements of the offence required to be proved, and having had the advantage of seeing and hearing the witnesses, this Court is of the considered opinion that the learned Magistrates' decision to acquit and discharge the Accused was correct in law.

This Court finds no error in the decision of the Learned Magistrate and therefore dismisses the Prosecution's Appeal. Dated: 5th May 2026 (AVINDER SINGH GILL) JUDICIAL COMMISSIONER HIGH COURT OF MALAYA, JOHOR BAHRU Counsel:- For the Appellant : Puan Nur Fatihah binti Mohd Nizam Timbalan Pendakwa Raya Pejabat Penasihat Undang-Undang Negeri Johor Aras 2, Bangunan Dato' Ja'afar Muhammad Kota Iskandar, Nusajaya Johor. For the Respondent : Encik Abd Rahim Ali Tetuan Rahim, Aidil & Partners No.6, 01, Jalan Padi Emas 6/2 Bandar Baru Uda, 81200 Johor Bahru, Johor