Pendakwa Raya v Mohd Redzuan Bin Zakaria (WA-41H-29-07/2018)

At the house of her husband to-be, her daughter together with the children of her husband to-be would normally go to the “ustaz” place, located just beside the house of her husband to-be, to learn to recite the holy Al – Quran. This would be after the Maghrib prayers. There were many groups of students who learn reciting the holy Al – Quran from the “ustaz”. PW3 had been sending her daughter to learn to recite the holy Al – Quran with the “ustaz” for almost 2 months prior to the incident.

According to PW3, when she got home from the “pasar malam” trading on 10.02.2017, her daughter, the victim, complained to her that she felt pain on her private parts. 5 Thinking that her daughter did not wash-up properly, PW3 took her daughter to the bathroom and applied soap in an attempt to wash her. When PW3 did this, her daughter screamed out loud and said she felt pain.

PW3 then just washed-up her daughter with water and took her inside the room. PW3 inspected her private parts. PW3 said she saw red marks on her daughter’s private parts. PW3 asked her daughter what had happened and her daughter said that the “ustaz” had touched her private parts. Her daughter said this happened when she was learning to recite the holy Al – Quran with the “ustaz”.

PW3 then asked her husband to-be what should they do. They then decided to take her daughter to the hospital for proper medical examination. When they reached the hospital, the doctor in-charge then asked PW3 to lodge a police report first. After PW3 lodged a police report, her daughter was examined by the doctor. PW3 said the doctor told her that there 6 was a laceration mark on her daughter’s private parts. After the incident, PW3 said her daughter appeared moody and depressed. PW3 said her daughter became afraid of men, whether known or unknown to her and would run and hide behind PW3.

The victim was examined by Dr. Muhammad Shihab bin Ismail (PW4). According to PW4, on 10.02.2017 he received a patient by reference from the Emergency Department of the Serdang Hospital. The patient came with her mother and complained that the patient is suspected to have been molested and PW4 proceeded to examine the patient together with the specialist on-duty, in particular at the private parts of the patient. PW4 found red laceration marks on the private parts but there was no hymen tear. The red laceration marks looked fresh, estimated to age between 24 hours to 48 hours. 7

The victim (PW2) gave evidence under oath. Although when the trial commenced, she was aged 7 years, the learned Magistrate found that PW2 could properly understand the concept, idea and consequences of speaking under oath. The learned Magistrate, after holding an inquiry to ascertain whether PW2 understands the duty to speak the truth, went on to hear PW2’s evidence under oath.

In her evidence, PW2 said the incident happened at the “ustaz” house. PW2 relate how she felt pain on her private parts because she was touched by the “ustaz”. PW2 said the “ustaz” touched her using his hands. PW2 said she pushed the “ustaz” hands away because she said that no one can touch private parts. PW2 said she did not say anything when she pushed away the “ustaz” hands but she ran towards her “brother” (the son of PW3’s husband to-be) who was then busy with his drawings. PW2 then asked his “brother” to go home and they went home together. At home, PW2 said she told her mother 8 what had happened. PW2 said no one had ever done the same thing to her except for the “ustaz”. Brief deliberations Contention of the defence/appellant [11] The learned counsel challenged the findings of the learned Magistrate on the following grounds:

that PW2 did not understand the nature of an oath and the learned Magistrate should not have allowed PW2 to give her evidence under oath;

that the learned Magistrate should have directed for the evidence of PW2 to be taken down in writing under section 269 of the Criminal Procedure Code instead of under section 133A of the Evidence Act 1950; 9

that PW2 herself could not exactly identify the location of the house of PW’3 husband to-be whom PW2 referred to as her “uncle’s” house;

that there was no evidence to corroborate the evidence of PW2;

that adverse inference under section 114(g) of the Evidence Act 1950 should be invoked against the prosecution for its failure to call the son of PW3’s husband to-be who was present at the scene as a witness;

that the defence has succeeded in raising a reasonable doubt in the prosecution’s case. The witnesses called by the defence said that on the date in question, PW2 and the other child did not come over for the holy Al – Quran recital because it was a holiday. 10 Contention of the prosecution/respondent [12] The learned Deputy Public Prosecutor did not file written submissions in response of the appeal by the accused and submitted orally. The learned Deputy Public Prosecutor in her oral submissions contends that the learned Magistrate had carefully ascertained that PW2 understood the duty to speak the truth and that PW2 understood the consequences of speaking under oath. In respect of the non-calling of the children of PW3’s husband to-be, the learned Deputy Public Prosecutor submits that both of them did not witness what had happened to PW2 as they were doing something else at that time. As such, there was no necessity to call them as witnesses. On her appeal against sentence, the learned Deputy Public Prosecutor submits that the sentence imposed by the learned Magistrate is manifestly inadequate as the learned Magistrate had failed to take into account rampancy of the offence and public interest considerations. The learned Deputy Public Prosecutor urged this Court to impose whipping as additional sentence against the accused. 11 Analysis and decision [13] In hearing an appeal from a subordinate court, the duty of this Court is provided for under section 316 of the Criminal Procedure Code. Section 316 of the Criminal Procedure Code provides as follows: “Decision on appeal 316. At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal, or may —

in an appeal from an order of acquittal, reverse the order, and direct that further inquiry be made, or that the accused be retried, as the case may be, or find him guilty and pass sentence on him according to law; 12

in an appeal from a conviction or in an appeal as to sentence —

reverse the finding and sentence and acquit or discharge the accused, or order him to be retried; or

(ii) alter the finding, maintaining the sentence, or with or without altering the finding reduce or enhance the sentence or alter the nature of the sentence;

in an appeal from any other order, alter or reverse such order.”. [14] It is trite that in exercising its appellate powers, the High Court should properly consider and carefully weigh matters such as — 13

the views of the trial judge on the credibility of witnesses;

the presumption of innocence in favour of the accused;

the right of the accused to the benefit of any doubt; and

the slowness of an appellate court in disturbing a finding of fact arrived at by a trial judge who had the advantage of seeing the witnesses. (See: Lim Kheak Teong v. Public Prosecutor [1984] 1 CLJ Rep 207 FC; [1985] 1 MLJ 38; [1984] 1 MLRA 126 and Periasamy Sinnappan v. PP [1996] 3 CLJ 187 CA; [1996] 2 MLJ 557; [1996] 1 MLRA 277; [1996] 2 AMR 2511). 14 [15] At the conclusion of the trial, the trial court is under the statutory duty pursuant to section 173(m) of the Criminal Procedure Code to consider whether the prosecution has succeeded in proving its case beyond a reasonable doubt. Section 173(m) of the Criminal Procedure Code reads as follows: “173. The following procedure shall be observed by Magistrates in summary trials:

(i) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.

(ii) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall 15 find the accused guilty and he may be convicted on it and the Court shall pass sentence according to law. Provided that before the Court passes sentence, the Court shall, upon the request of the victim of the offence or the victim’s family, call upon the victim or a member of the victim’s family to make a statement on the impact of the offence on the victim or his family; and where the victim or a member of the victim’s family is for any reason unable to attend the proceedings after being called by the Court, the Court may at its discretion admit a written statement of the victim or a member of the victim’s family.

(iii) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal.”. 16 [16] In Duis Akim & Ors v. PP [2013] 9 CLJ 692 FC; [2014] 1 MLJ 49; [2014] 1 MLRA 92; [2013] 6 AMR 421, the apex Court made the following observations in respect of the duty cast upon the appellate courts when considering decisions of the trial courts: “[22] It is trite that being an appellate court it is our task in this case to review and consider the decision of the courts below. We need to determine whether on the evidence adduced the defence was rightly called. If so, whether the defence had raised a reasonable doubt in the prosecution's case. And even if it did not it is still essential that to sustain the convictions it must be determined whether the prosecution had proved its case beyond reasonable doubt.”. [17] The accused was charged under section 354 of the Penal Code. Section 354 of the Penal Code provides as follows: 17 “Assault or use of criminal force to a person with intent to outrage modesty 354. Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to 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.”. [18] In proving a charge under section 354 of the Penal Code against the accused, the following ingredients must be proved:

there must have been assault or use of criminal force; and

the assault or criminal force must have been made with the intention to outrage the persons modesty or 18 with the knowledge that the person's modesty was likely to be outraged. [19] “Criminal force” is defined under section 350 of the Penal Code as follows: “Criminal force 350. Whoever intentionally uses force to any person, without that person's consent, in order to cause the committing of any offence, or intending by the use of such force illegally to cause, or knowing it to be likely that by the use of such force he will illegally cause injury, fear, or annoyance to the person to whom the force is used, is said to use criminal force to that other.”. [20] In making the finding of a prima facie case against the accused, the learned Magistrate said that he had placed a high probative value on the evidence of the child, PW2, and that despite her tender age, the learned counsel has not been able 19 to break her in cross-examination. PW2 gave her evidence in a convincing manner and that has led the court to accept her evidence without hesitation. The learned Magistrate also found that other evidence, such as the evidence of the PW2’s mother, PW3, the doctor (PW4) who examined PW2, the Psychologist (PW5) and the investigating officer (PW6) strongly supported the narration of the prosecution’s case. This was further strengthened by the medical report (Exhibit P1) which is consistent with the complaint made by PW2 of the molest committed against her by the accused. The learned Magistrate found that the prosecution has succeeded in proving a prima facie case against the accused and called upon him to enter his defence. [21] An appeal is merely a continuation of trial and the evidence adduced at the trial stage is opened to this Court at the appellate stage for re-examination to determine whether or not the findings made by the trial court is correct. This principle is enunciated in the case of Public Prosecutor v. Ma’arif [1969] 20 1 LNS 134; [1969] 2 MLJ 65; [1969] 1 MLRH 596 and affirmed by the Court of Appeal in Dickson Levy a/l Maria George v. Public Prosecutor [2018] MLJU 98 CA. It thus incumbent upon this Court to review the evidence adduced by the prosecution and the defence to determine the correctness of the decision of the learned Magistrate. [22] In considering the present appeal, foremost on my mind is the fact that the learned Magistrate has had the audio-visual advantage of the “live” evidence of the witnesses and this Court at the appellate stage should not disturb any findings of facts made by the learned Magistrate unless they are against the weight of the evidence thus adduced. [23] The main evidence considered by the learned Magistrate is the evidence of the victim herself, PW2. When PW2 gave evidence, she was 7 years old. Clearly when PW2 gave evidence, she was a child within the meaning of section 2(1) of the Child Act 2001. 21 Section 2(1) of the Child Act 2001 provides as follows: “Interpretation 2.

In this Act, unless the context otherwise requires — “child”—

means a person under the age of eighteen years; and

in relation to criminal proceedings, means a person who has attained the age of criminal responsibility as prescribed in section 82 of the Penal Code [Act 574];”. [24] In dealing with the evidence of PW2, the learned Magistrate was fully cognisant of the provisions of the law regulating the reception of child evidence. In his grounds of 22 judgment, the learned Magistrate had ensured that PW2 was comfortable and not under any kind of stress before proceeding to take her evidence. The learned Magistrate also had ingeniously placed two colouring books and some crayons in front of PW2 and noticed that PW2 did not even touch them but instead gave her full attention to the proceedings which was conducted in camera. Not satisfied with the questions posed to PW2 by the learned DPP, the learned Magistrate himself took the initiative to embark on a further exercise to satisfy himself whether the evidence of PW2 should be received pursuant to section 133A of the Evidence Act 1950 or as evidence under oath. Section 133A of the Evidence Act 1950 reads as follows: “Evidence of child of tender years 133A. Where, in any proceedings against any person for any offence, any child of tender years called as a witness does not in the opinion of the court understand 23 the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 269 of the Criminal Procedure Code shall be deemed to be a deposition within the meaning of that section: Provided that, where evidence admitted by virtue of this section is given on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him.”. [25] A reading of section 133A of the Evidence Act 1950 clearly shows its applicability in cases where the witness is a child of tender years and the evidence received by the court is 24 not given by the child under oath. In such a situation, the court received the evidence of the child as a disposition under section 269 of the Criminal Procedure Code where the court is in the opinion that the child possesses sufficient intelligence and understands the duty to speak the truth. [26] The case of Aziz Bin Muhamad Din v. Public Prosecutor [1997] 1 CLJ SUPP 523; [1997] 1 BLJ 523; [1996] 5 MLJ 473; [1996] 1 MLRH 674, held as follows: “Generally, in Malaysia there is no specific rule of law that requires the evidence of a witness to be corroborated except in the case of the evidence of a child of tender years under s. 133A of the Act. However, in certain types of cases there is a rule of practice which requires evidence to be corroborated. This includes the evidence of a complainant in a case involving a sexual offence. Even in such cases a conviction based on uncorroborated evidence is not illegal. But the rule of practice regulates the manner in which uncorroborated 25 evidence is to be treated, that is to say, the judge must warn himself of the dangers of convicting on such evidence.”. [27] However, in Tham Kai Yau & Ors v. Public Prosecutor [1976] 1 LNS 159 FC; [1977] 1 MLJ 174; [1976] 1 MLRA 279, the Federal Court held: “The appeal was brought on several grounds. We did not intend to deal with all of them as we felt there was not much substance in them. We needed to consider only two. One of them was that the jury were not given due warning against accepting the evidence of PW8 who was 13 years of age at the time of the incident and 14 when he gave evidence, without corroboration. In cases involving child evidence of tender years, we are of the opinion that it would not be necessary to give a formal warning that it is dangerous to convict on the uncorroborated evidence of a child of tender years. It is sufficient if the judge adopts the prudent course of advising the jury to pay particular attention to or to scrutinise with special care, the evidence of young children and 26 explains the tendencies of children to invent and distort. The objection in such a case as this, is not on the grounds of complicity, as in the case of an accomplice, or on the grounds of an oath against an oath, as in the case of a prosecutrix in a sexual offence against her, but on the ground of tendency of a child of tender years to confuse fantasy with reality.” (See: Loo Chuan Huat v. Public Prosecutor [1971] 2 MLJ 167.) In the present case, however, the learned judge did not consider PW8, a child of tender years and he was satisfied that he possessed sufficient intelligence to understand the meaning and significance of an oath. The absence of such warning therefore was not fatal as there was in fact substantial corroboration of the boy's evidence. The appeal on this ground, we thought, must therefore fail.”. 27 [28] In PP v. Chan Wai Heng [2008] 5 CLJ 805 CA; [2008] 5 MLJ 798; [2008] 2 MLRA 52; [2008] 5 AMR 488 it was held that: “[15] Section 133A refers to a situation where a child of tender years is called as a witness and does not understand the nature of an oath. In such a situation his evidence may still be received though not given upon oath if in the opinion of the court he possesses sufficient understanding to justify the reception of the evidence, and the child understands the duty of speaking the truth. [16] The first part of s. 133A therefore governs the admissibility of the evidence of the child though not given under oath. The proviso deals with the way in which the evidence once admitted is to be treated, that is, where the evidence admitted as such is given on behalf of the prosecution, the proviso requires that the evidence is to be corroborated by some other material evidence in support thereof in order to implicate the accused.”. 28 Heliliah JCA then went on to explain as follows: “... Once a witness is found to be a competent witness, even if he is not competent to take an oath or if there is an omission to take an oath that will not invalidate the proceedings or render inadmissible the evidence. The rule generally is in favour of admission of evidence though the weight to be attached to it will naturally be a matter for consideration by the Court. There is always competency unless the Court considers otherwise. If a witness is not competent he will not be examined in Court. In the case of a child, it depends on the capacity of the child, his appreciation of the difference between truth and falsehood as well as his duty to tell the former. The decision of this question rests with the trial Judge, who sees the proposed witness, notices his manner, his apparent possession, or lack of intelligence. The trial Judge may resort to any examination which will tend to disclose the capacity and intelligence and in the case of an oath, his understanding of the obligation of an oath. (See Rameswar Kalyan Singh v. State of 29 Rajasthan AIR [1952] SC 54: (1952 Cri LJ 547), George L. Wheeler v. United States, 159 US 523, Krishna Kahar v. Emperor AIR [1940] Cal 182, Ram Hazoor Pandey v. State AIR [1959] All 409: (1959 Cri LJ 796), Basu v. State of Kerala [1960] ILR Ker 256, and Ponnumani v. State of Kerala [1987] (2) Ker LT 1042). Oath or affirmation shall be made by all witnesses, the only exception being the case of a child under 12 years of age where the Court is of the opinion that though he understands the duty of speaking the truth he does not understand oath or affirmation. If the Court is so satisfied, oath will not be administered to the witness. The evidence will nevertheless be admissible. [Emphasis added]”. [29] In respect of the position of the child witness, PW2, I am of the considered view that the questions posed by the learned Magistrate in his attempt to ascertain whether PW2 understands the nature of an oath after the initial questions by the learned DPP are sufficient in the circumstances. 30 [30] It is for the trial judge to make a finding as to whether he finds the child witness understands the nature of an oath. And where it is demonstrated that the finding made by the trial judge as to whether the child witness in fact understands the nature of an oath is satisfactorily evidenced in the record of proceedings, I am of the considered view that this Court, at the appellate stage, should not substitute such a finding especially taking into consideration the audio-visual advantage of the trial judge when the child witness was present before him. Having had the audio-visual advantage of listening to and having the child witness herself present before him, the learned Magistrate is in the better position to make the evaluation and this Court should be slow to intervene in that finding unless the finding is against the weight of the evidence adduced in the inquiry. [31] In the present appeal, the series of questions posed to PW2 by the learned Magistrate were relevant questions meant to gauge whether PW2 in fact understands the nature of an oath and I am of the considered view the learned Magistrate 31 had properly arrived at his findings that PW2 actually understood the nature of an oath after carefully embarking on the exercise in that regard. I am of the considered view that the finding made by the learned Magistrate in this respect is well-founded and this Court has no cogent reasons to intervene in that finding. [32] The learned counsel attempts to capitalise on the argument that that PW2 herself could not exactly identify the location of the house of PW’3 husband to-be whom PW2 referred to as her “uncle’s” house from the photographs shown to her. As such, the evidence of PW2 should not be given due weight as she could not even remember or correctly identify a simple fact which goes against the findings of the learned Magistrate that PW2 was able to comprehend the nature of an oath. 32 [33] In this regard, when the whole of the evidence is considered in its totality, I am of the considered view that the location of the house of PW’3 husband is not material in the circumstances when juxtaposed with the question of whether PW2 could actually understand the nature of an oath. [34] On the question of corroboration, I must at the onset revert to the nature of PW2’s evidence for purposes of clarity. The evidence given by PW2 was not one under section 133A of the Evidence Act 1950 which requires corroboration by some other material evidence before a conviction may be sustained. PW2 gave evidence under oath and the learned counsel has had the opportunity to cross-examine PW2. The learned Magistrate too made a finding that despite being cross-examined by the learned counsel, PW2 had confidently answered all the questions in cross-examination without hesitation although at a very young age. This has led to the learned Magistrate being able to place a high probative value to the evidence given by PW2 as tested in cross-examination. 33 [35] Other than that, the evidence of PW3 which shows the sudden change of attitude by PW2 especially when PW2 appeared fearful when being amongst men. PW2 complained to PW3 that she felt pain on her private parts when PW3 got home from the “pasar malam” trading on 10.02.2017. PW2 screamed in pain when PW3 took PW2 to the bathroom and applied soap on her private parts in an attempt to wash her and when asked, PW2 told PW3 that the “ustaz” had touched her private parts when she was learning to recite the holy Al – Quran with the “ustaz”. Further, there was affirmative evidence to show that the incident happened when PW2 was learning to recite the holy Al – Quran with the “ustaz” and that lesson took place at the accused’s house. Dr. Muhammad Shihab bin Ismail (PW4) who examined PW2 on 10.02.2017 found red laceration marks on the private which looked fresh, estimated to age between 24 hours to 48 hours. All these are crucial contemporaneous evidence which must not be considered in isolation but must be properly weighed in consideration of the evidence of PW2. 34 [36] On a re-evaluation of the whole of the evidence, I am of the considered view that the prosecution has adduced sufficient evidence to establish a prima facie case against the accused and that the decision of the learned Magistrate in ordering the accused to enter his defence is good in law. I am also of the considered view that there is no merit in the contention by the learned counsel that an adverse inference should be invoked against the prosecution for its failure to call the 2 brothers of the victim as witnesses. It is evident that there was no challenge by the learned counsel in cross-examination of the investigating officer (PW6) to drive home the point that the evidence of the 2 brothers are crucial or material in the unfolding of the narration of the prosecution’s case. [37] In finding that the defence was not capable of raising a reasonable doubt on the prosecution’s case, after having scrutinized the line of questioning of the learned counsel the learned Magistrate found that the accused has failed to put across his defence during the prosecution’s case when the 35 prosecution’s witnesses were called. In respect of the defence, I am of the considered view that the learned Magistrate had correctly described the defence as one of afterthought. It is trite that the defence is under a duty to place his defence in cross-examination at the earliest available opportunity during the prosecution’s case. There is also nothing to suggest that the learned counsel was refraining from such challenge in cross-examination as a matter of design to bring it within the exceptions of the principle in cross-examination. [38] On a re-evaluation of the evidence in totality, I am of the considered view that the prosecution has succeeded in proving its case against the accused beyond a reasonable doubt and that the defence as put forth by the accused has failed to raise a reasonable doubt in the prosecution’s case. In the upshot, I hereby dismiss the appeal against conviction and affirm the decision of the learned Magistrate. 36 Sentence [39] In considering appeals against sentence, it is well-established that the principles relied upon by the appellate courts may be summarized as follows:

the initial function of an appellate court in an appeal against sentence is one of a review to ascertain if the sentence passed is one which is in accordance with the law and established legal principles. The question of whether the appellate court would have imposed a different sentence if it were the court of first instance is not a relevant consideration unless the sentencing court has erred in principle or had imposed a sentence which is manifestly excessive or manifestly inadequate; (See: Public Prosecutor v. Sulaiman Ahmad [1992] 3 CLJ Rep 447; [1992] 4 CLJ 2283; [1993] 1 MLJ 74; [1992] 2 MLRH 420, Adam Atan v. PP [2009] 1 CLJ 33; [2008] MLJU 402; [2008] 2 MLRA 37 600, PP v. Karthiselvam Vengatan [2009] 4 CLJ 632 CA; [2011] 4 MLJ 212; [2009] 1 MLRA 702 and PP v. Mohammad Yunus [2018] 2 CLJ 749 CA; [2017] MLJU 1838; [2017] MLRAU 466)

in considering whether the sentence imposed is manifestly excessive or inadequate, public interest must always be the first and foremost consideration; (See: Iwan Bujang Dara & Anor v. Public Prosecutor [2017] 1 LNS 285 CA; [2017] 3 MLJ 630; [2017] SSLR 1 and Amir Hassan Ali Usin v. PP [2019] 3 CLJ 325 CA; [2018] 6 MLJ 421; [2018] MLRAU 289; [2018] 6 AMR 213.)

in fixing the punishment for any particular crime, the court will consider the nature of the offence, the circumstances under which it was committed, the degree of deliberation shown by the offender, the provocation which he has received if the crime is 38 one of violence, the antecedents of the prisoner up to the time of sentence, his age and character; (See: Mohamed Jusoh bin Abdullah and Another vs. PP [1947] 1 LNS 73; [1947] 13 MLJ 130 and Mohd Khir bin Toyo lwn. PP [2013] 5 CLJ 323 CA; [2013] 4 MLJ 801; [2013] 5 MLRA 392; [2013] 4 AMR 220.)

a court should, when sentencing an accused, take into account all considerations relevant to the case, including the gravity of the offence, the circumstances surrounding the commission of the offence, the antecedents of the accused, the deterrent effect that punishment is to have, any factor that warrants special attention either in favour of or against the accused and above all the public interest. Reasons must be given for imposing a particular sentence to enable an appellate court to ensure that there has been no error in principle; 39 (See: PP v. Tengku Mahmood Iskandar & Anor [1973] 1 LNS 124; [1974] 1 MLJ 110; [1974] 1 MLRH 347 and Lim Guan Eng v. PP & Other Appeals [1998] 3 CLJ 769 CA; [1998] 1 MLRA 457; [1998] 3 AMR 2079.)

there can be only general guidelines in sentencing. No two cases can have exactly the same facts to the minutest detail. Facts do differ from case to case and ultimately each case has to be decided on its own merits. In practice, sentences do differ not only from case to case but also from court to court. All things being equal these variations are inevitable if only because of the human element involved. But, of course, there must be limits to permissible variations. (See: Public Prosecutor v. Loo Choon Fatt [1976] 1 LNS 102; [1976] 2 MLJ 256 and PP v. Dato’ Waad Mansor [2005] 1 CLJ 421 FC). 40 [40] Generally, an appellate court would be more readily intervene in the sentence imposed by the trial court if it is satisfied that any of the following four grounds are made out:

the sentencing judge had made a wrong decision as to the proper factual basis for the sentence;

there had been an error on the part of the trial judge in appreciating the material facts placed before him;

the sentence was wrong in principle; or

the sentence imposed was manifestly excessive or inadequate. (See: PP v. Ling Leh Hoe [2015] 4 CLJ 869 CA; [2015] MLJU 1006; [2015] MLRAU 138; [2015] 5 AMR 325). 41 [41] In considering the discretionary powers of the court in determining the length of a custodial sentence, there are several factors which must be taken into account. These general principles were laid down by the apex Court in the case of Mohd Abdullah Ang Swee Kang v. PP [1987] 2 CLJ 405; [1988] 1 MLJ 167; [1987] 1 MLRA 43 and may be summarized as follows:

the gravity of the offence;

the facts in the commission of the offence;

the presence or absence of mitigating factors; and

the trend of sentencing policy, if any. [42] On the issue of sentencing, it is trite that an appellate court would be minded to intervene in the sentence imposed by the trial court if it is manifestly inadequate or excessive, as the 42 case may be. An accused convicted of an offence under section 354 of the Penal Code may be sentenced with imprisonment for a term which may extend to 10 years or with fine or with whipping or with any two of such punishments. [43] In considering the appropriate sentence to be meted out against the accused, the trend of sentencing in similar cases as earlier decided by other courts would serve as a useful guide as to the nature and length of the period of incarceration to be imposed against a person convicted of a similar offence. In making that consideration, it is also pertinent to bear in mind the differentiating factors in the other cases to enable a suitable sentence to be imposed, such as the value of the subject matter of the charge and the manner the offence was committed to accord proportionality in sentencing. [44] In considering the trend of sentencing, this Court made reference to the following cases under section 354 of the Penal Code: 43

In Abdul Majid Ahmad lwn. PP [2019] 1 LNS 1107; [2019] MLJU 767; [2019] MLRHU 770, the sentence of 12 months of imprisonment imposed by the learned Magistrate on a charge under section 354 of the Penal Code committed against a child aged 14 years was affirmed by the High Court;

In Mohamad Akhir Bakar lwn. PP [2019] 3 CLJ 399; [2019] 12 MLJ 597; [2019] MLRHU 4, the sentence of 10 months of imprisonment imposed by the learned Magistrate on a charge under section 354 of the Penal Code committed by a teacher against his child student was affirmed by the High Court;

In PP lwn. Md Zaib Ahmad [2018] 1 LNS 1809; [2018] MLJU 1683; [2018] AMEJ 1463, the sentence of 12 months of imprisonment imposed by the learned Magistrate on a charge under section 354 of the Penal 44 Code committed by the accused against his 13-year-old step-daughter was affirmed by the High Court;

In Mohd Ikhsan Ramli v. PP [2018] 1 LNS 1822; [2018] MLJU 2071, the High Court affirmed the sentence of 2 years of imprisonment imposed by the learned Magistrate on the accused for an offence under section 354 of the Penal Code committed against a 24-year-old victim;

In Samsudin Abdullah lwn. PP [2018] 1 LNS 492; [2018] MLJU 479; [2018] MLRHU 387, the High Court substituted the sentence of 5 years of imprisonment imposed on the accused by the learned Magistrate for an offence under section 354 of the Penal Code committed against a child aged 3 years and 10 months with a sentence of 3 years and 6 months of imprisonment; 45

In PP lwn. Mohd Yunus Hassan [2017] 1 LNS 1214; [2017] MLJU 1289; [2017] MLRHU 832, the High Court substituted the sentence of 1 day of imprisonment and a fine of RM4,000.00 in default 12 months of imprisonment imposed on the accused by the learned Magistrate for an offence under section 354 of the Penal Code committed against a child aged 12 years old with a sentence of 15 months of imprisonment; and

In Bohari Amit v. PP [2005] 8 CLJ 43; [2006] MLJU 18; [2006] 1 MLRH 7, the High Court substituted the sentence of 7 years of imprisonment and 3 strokes of whipping imposed on the accused by the learned Magistrate for an offence under section 354 of the Penal Code committed against a child aged 7 years old with a sentence of 5 years of imprisonment and 1 stroke of whipping. 46 [45] In the present appeal, other than the mitigating factors pertaining to the offender as distinguished from mitigating factors in respect of the commission of the offence itself, I am of the considered view that there was no strong mitigating factor advanced by the learned counsel to outweigh the aggravating facts as disclosed in evidence. [46] In cases such as the present appeal where the despicable act was committed by the accused who had misused the position of trust reposed on him as an “ustaz” by taking advantage on a child aged 5 years and 11 months, a clear warning must be sent out that public interest demands offenders like the accused be dealt with by a rather long period of incarceration. I am of the considered view that this Court ought to uphold public interest consideration as paramount in cases involving child victims. Children are the future of the nation and it is our bounden duty to protect their well-being. It is reasonable to deduce that the emotional stress and mental injury suffered by the victim in the present appeal may well 47 outlive the period of imprisonment the accused is subjected to and there is no telling when she will eventually recover from it. [47] In the present case, I am of the considered view that the sentence imposed by the learned Magistrate did not reflect the public abhorrence against offences of this nature and not in consonant with the trend of sentencing for similar offences and as such, it is manifestly inadequate. In the circumstances, I hereby set aside the sentence of imprisonment imposed by the learned Magistrate and substitute it with a sentence of 18 months imprisonment. The sentence of imprisonment shall commence from the date of this judgment. The sentence of fine of RM6,000.00 in default 6 months of imprisonment is upheld. Dated 01 January 2020. sgd AHMAD SHAHRIR MOHD SALLEH JUDICIAL COMMISSIONER HIGH COURT KUALA LUMPUR. 48 CRIMINAL APPEAL NO: WA – 41S – 7 – 07/2018 For the appellant: Surya Putra bin Mohamed Taulan (Messrs. Saufi Putra & Associates) For the respondent: DPP Fatin Hanum binti Abdul Hadi Deputy Public Prosecutor, Kuala Lumpur. CRIMINAL APPEAL NO: WA – 41H – 29 – 07/2018 For the appellant: DPP Fatin Hanum binti Abdul Hadi Deputy Public Prosecutor, Kuala Lumpur. For the respondent: Surya Putra bin Mohamed Taulan (Messrs. Saufi Putra & Associates)