Pendakwa Raya v Syed Khalis Bin Syed Hasbullah (PB-42JSKLB(A)-1-09/2022)

PW1, XXXXXXXXXXXXXXX, complainant/victim.

PW2, Siti Halijah binti Abdul Kadir, mother;

PW3, Rabi’atul El Adawiyah binti Mohd El Zurin, classmate;

PW4, Inspector Azirah binti Abd Aziz, Investigating Officer; and

PW5, ASP Mohd Yusof bin Haji Ibrahim, arresting officer. [6] PW1 is a 14-year and 9-month-old female student in Form Two at Maktab Wan Jah School, Telaga Air, Butterworth, Pulau Pinang. The accused is a religious teacher who teaches Usuluddin at the same school. [7] In her testimony, PW1 claims that on 25th March 2021, around 9:00 am, she and PW3 came to the school to clean the classrooms as preparation for the resumption of school sessions after the closure due to the Covid-19 outbreak and the implementation of the Movement Control Order (MCO). S/N 5xnsXs/7hkeEZsdiEWuBWw Page 4 of 17 [8] While they were cleaning and arranging tables/chairs in Class 3 Iman, the accused came and asked one of them to help him in Class 3 Imtiyaz, which is adjacent to Class 3 Iman. [9] PW1 went to Class 3 Imtiyaz to assist the accused in cleaning and arranging chairs/tables in that classroom. [10] The accused instructed PW1 to arrange the chairs and tables as if they were in examination layout, and the accused also directed PW1 to place the unnecessary chairs in the storeroom located at the back of the classroom. [11] When PW1 entered the storeroom to place the last chair, the accused also followed her into the storeroom and he closed the door. The accused then approached PW1 face to face and asked to touch her breasts, hips and her private part (genitalia). [12] PW1 resisted the accused's request, but the accused continued to hug her and kissed her on the mouth. The accused also touched PW1's breasts, hips, and private part. PW1 felt frightened and trembled by what the accused did to her. [13] The accused then instructed PW1 not to disclose the incident to anyone, including parents, friends, or teachers. After the incident in the storeroom, PW1 returned to Class 3 Iman. [14] Subsequently, PW1 received a text message via WhatsApp from the accused, asking PW1 to meet him in his car, which was parked across the road near the boys' dormitory. [15] She went to meet the accused in the car, and they spent 15 minutes inside the car and at that time the accused asked PW1 to be with him as husband and wife. PW1 was shocked by the accused S/N 5xnsXs/7hkeEZsdiEWuBWw Page 5 of 17 unexpected request. After that, PW1 returned to the school corridor and waited for PW2 to pick her up. [16] PW3 in her testimony confirmed that she and PW1 were present in Class 3 Iman on 25/3/2021 to clean and tidy up the classroom. [17] However, PW3 had no knowledge of what transpired between the accused and PW1 on that day inside Class 3 Imtiyaz and the storeroom. PW1 did not inform her about the incident. [18] On 26/3/2021, PW1 told PW2 about the incident. PW2 felt very angry and upset upon hearing the story from PW1. On the same day, PW2 met with the school authorities and reported what PW1 had told her. [19] After approximately two months had passed since the incident, on 18.5.2021 at 1741hrs, PW1 lodged a police report i.e Butterworth Report 2900/2021 (exhibit P1). [20] On 20.5.2021, PW1 filed a corrected police report, i.e Butterworth Report 2941/2021 (exhibit P2). [21] An investigation was conducted, and the accused was arrested by ASP Mohd Yusof bin Haji Ibrahim (PW5) on 19.5.2021 at 1100hrs. The duty of the appellate court [22] Before this court addresses the merits of the appeal raised by the learned appellant's counsel, it is advisable to revisit the principles that outline the role of this court as an appellate court in considering the decision of the Trial Court. This court is bound by the principles that have been established to be used as guidance and reference in considering the appellant's appeal. S/N 5xnsXs/7hkeEZsdiEWuBWw Page 6 of 17 [23] This court is constantly reminded that its function in the appellate jurisdiction is provided for in section 316 of the Criminal Procedure Code, as stated by Court of Appeal Judge Zawawi Salleh (as he then was) in the case of Mohd Yusri Mangsor & Anor v. PP [2014] 7 CLJ 897; [2014] 4 MLJ 875 at page 882 (MLJ); 903 (CLJ): “[4] We have also scrutinized the records available before us. We are mindful that this is a factual based appeal. It is trite that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts by the trial court to which the law entrusts the primary task of evaluation of the evidence. However, there are exceptions. Where: a) the judgment is based upon a wrong premise of fact or of law; b) there was insufficient judicial appreciation by the trial judge of the evidence of circumstances placed before him; c) the trial judge has completely overlooked the inherent probabilities of the case; d) that the course of events affirmed by the trial judge could not have occurred; e) the trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts; or f) the trial judge had so fundamentally misdirected himself that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion, then an appellate court will intervene to rectify that error so that injustice is not occasioned (see Perembun (M) Sdn Bhd v. S/N 5xnsXs/7hkeEZsdiEWuBWw Page 7 of 17 Conlay Construction Sdn Bhd [2013] 9 CLJ 828; [2012] 4 MLJ 149, (CA); Sivalingam a/l Periasamy v. Periasamy & Anor [1996] 4 CLJ 545; [1995] 3 MLJ 395; [1996] 4 CLJ 545 (CA)).” [24] This court also adheres to the principle stated in numerous cases that an appellate court will not interfere with the findings of the trial judge unless there is an error on the part of the trial judge. In the judgment delivered by Gopal Sri Ram and Mahadev Shankar (COA Judge as they then was) in the case of Sivalingam a/l Periasamy v. Periasamy & Anor [1996] 4 CLJ 545; [1995] 3 MLJ 395: “It is trite law that an appellate court will not readily interfere with the findings of fact arrived at by the trial court to which the law entrusts the primary task of evaluation of evidence. However, the appellate court has a duty to intervene where a trial court has misdirected itself, that one may say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion”. Issues raised by the Appellant [25] The Appellant has presented 6 grounds of appeal as detailed in the Appeal Petition as follows: -

The learned Sessions Court Judge erred in fact and law when finding that the Appellant failed to establish a prima facie case against the Respondent based on all available evidence;

(ii) The learned Sessions Court Judge erred in law and fact when stating that the victim's testimony was doubtful, whereas in this case, the victim could provide a detailed account of the Respondent's actions towards her; S/N 5xnsXs/7hkeEZsdiEWuBWw Page 8 of 17

(iii) The learned Sessions Court Judge erred in law and fact by only considering the lack of other supporting evidence to prove that the Respondent committed sexual harassment against the victim;

(iv) The learned Sessions Court Judge erred in law and fact by taking into account the views of other witnesses regarding the victim's behaviour and personality before acquitting and discharging the Respondent;

The learned Sessions Court Judge erred in law and fact by considering that there were no conversations or communication via WhatsApp application between the victim and the Respondent, whereas such matter is irrelevant; and

(vi) The learned Sessions Court Judge also erred in law and fact by stating that the victim is not a credible witness and her testimony is doubtful. Analysis and Findings of this Court [26] This court has examined and considered the issues raised in the Appeal Petition, along with the arguments presented by both parties. This court, therefore, finds that the main issue raised is whether the prosecution has successfully proven a prima facie case based on all the evidence presented by the prosecution witnesses. [27] The burden of proof at the end of the prosecution's case, as provided under Section 180 of the Criminal Procedure Code [Act 593], states the following: “Section 180. Procedure after conclusion of case for prosecution. S/N 5xnsXs/7hkeEZsdiEWuBWw Page 9 of 17

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.

If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal.

If the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter on his defence.

For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.” [28] Based on the provisions of Section 180 of the Criminal Procedure Code and the judgments of apex courts, it is firmly established in law that at the end of the prosecution's case, the trial court must consider and determine whether the prosecution has successfully established a prima facie case against the accused. [29] In making this determination, the trial court must make a maximum evaluation of all the evidence presented by the prosecution, including evaluating the credibility of the witnesses. [30] In this case, during the alleged incident, the victim (PW1) was a child aged 14 years and 9 months. The trial judge must assess her testimony carefully and diligently because children have different levels of intelligence, especially at this age when they are seeking their own identities, and their thoughts are easily exposed to fantasies and imaginations. (See Yusaini Mat Adam v. PP [2000] 1 CLJ 206, Sidek bin Ludan v. PP [1995] 1 LNS 219, and PP v. Gurdial Singh Pretum Singh & Ors [2003] 1 CLJ 37.) S/N 5xnsXs/7hkeEZsdiEWuBWw Page 10 of 17 [31] This Court has examined the Record of Appeal, Notes of Evidence and Grounds of Judgment by the Trial Judge, and Court found that the Trial Judge has evaluated the testimony of all prosecution witnesses to ascertain whether all elements of the charges have been successfully proven. [32] The crucial evidence in this case indeed lies with PW1, as there were no eyewitnesses to the incident. Furthermore, there was a lapse of time between the occurrence of the incident and the police report. [33] Before giving testimony during the trial, it is evident from the Appeal Record that the Trial Judge was satisfied with the competency of PW1. Several questions were asked before determining that PW1 has sufficient intelligence and understands the obligation to speak the truth. Therefore, the court decides that PW1 to gives evidence on oath. [34] The elements of the offense that need to be proven are as follows:

The victim is a child;

The accused touched any part of the victim's body for sexual purposes;

The physical contact did not involve any penetration; and

The accused, at the time of committing the offense, held a position of trust as the victim's teacher. S/N 5xnsXs/7hkeEZsdiEWuBWw Page 11 of 17 Element (a): The victim is a child [35] Based on oral and documentary evidence (Birth Certificate – P14), the trial judge found that this element has been successfully proven. At the time of the incident on 25/3/2021, PW1 was 14 years and 9 months old. Therefore, the trial judge was satisfied that PW1 was a child under 18 years of age according to Section 2 of the Act. This fact was not contested by the defence. Hence, the first element has been successfully proven at the prima facie stage. Elements (b) and (c): The accused touched any part of the victim's body for sexual purposes and The physical contact did not involve any penetration [36] The incident alleged by PW1 happened inside the storeroom and was not witnessed by anyone else. It only happened between SP1 and the accused. Therefore, only SP1 can confirm the events that took place on that day. [37] PW1 testified that the accused had touched her breasts, hips, private part and kissed her mouth. All these actions were of a sexual nature and did not involve any penetration. [38] The trial judge, in her Grounds of Judgment, stated that the issue to be scrutinized is whether PW1 is a credible and reliable witness. As in this case, the foundation of the prosecution's case relies on PW1's testimony, the trial judge must exercise caution in assessing her testimony. [39] In deciding the credibility of PW1, the Trial Judge specifically examined the parts of her testimonies and observed PW1’s S/N 5xnsXs/7hkeEZsdiEWuBWw Page 12 of 17 demeanour while giving her testimony. Based on her observation, she found that SP1 behaved and carried herself in a mature and adult-like manner. [40] This court, after examining the Notes of evidence in the Appeal Record, agrees with the Trial Judge's careful and meticulous assessment of the PW1 testimonies. She made a maximum evaluation of the testimonies of PW1, PW2 and PW3 and observed that in their testimonies gave a negative image of PW1. [41] The trial judge was satisfied that PW2's testimony, which confirmed that PW1 had run away to marry a 24-year-old man, showed that PW1 had an exaggerated attitude or behaviour. [42] PW3 also confirmed that PW1 had lied and had problems at school. PW3 also had doubts about PW1's credibility. The trial judge believed that PW1 tended to be untruthful, often had imaginative thoughts, and her testimony was likely fabricated. The trial judge also doubted PW1's testimony because she did not take appropriate action to avoid the accused's actions. [43] The trial judge opined that PW1 should have tried to escape and seek help from PW3, who was in the neighbouring classroom, or immediately inform SP3 or her class teacher or any teacher present at the school on that day. Instead, PW1 continued playing with her mobile phone as she returned to Class 3 Iman as if nothing had happened. [44] This Court finds that the trial judge had properly considered the testimonies of PW1, PW2 and PW3. Therefore, this Court opines that the trial judge was not mistaken in adopting a more cautious S/N 5xnsXs/7hkeEZsdiEWuBWw Page 13 of 17 approach in accepting PW1's testimony, especially regarding the alleged incidents. [45] Furthermore, PW1 in her testimony, she stated that the accused sent her a text message through the WhatsApp application, asking her to meet him in his car. [46] During the investigation, two mobile phones belonging to the accused (exhibit P12 and exhibit P13) were seized and sent for analysis at the Cheras Forensic Laboratory. Based on the forensic examination report (exhibit P17), it confirmed that there were no text messages exchanged between the phone numbers 60174308896 and 60192887395 in the WhatsApp account on the mobile phone exhibit P12. Similarly, the forensic examination of the data extracted from mobile phone exhibit P13 showed that there was no WhatsApp application present in P13. [47] This Court finds that the trial judge was not mistaken in finding that there was no evidence to support PW1's contention regarding the WhatsApp message. The forensic report is crucial in showing any communication through the WhatsApp application between PW1 and the accused. [48] Therefore, the trial judge was satisfied that SP1's testimony about the accused sending a WhatsApp message was not true. If the accused had indeed sent a WhatsApp message to SP1, the forensic examination report would have confirmed it. [49] The trial judge found that SP1 is not a credible witness. She stated that “dalam keadaan seperti ini dan setelah menilai demenour dan tindak tanduk SP1 semasa memberikan keterangan di mahkamah, mahkamah ini berpendapat SP1 bukanlah seorang saksi yang S/N 5xnsXs/7hkeEZsdiEWuBWw Page 14 of 17 kredibel dan keterangannya haruslah di terima dengan sangat berhati-hati”. [50] This Court finds that the trial judge made a maximum assessment of the evidence presented by the prosecution, and the trial judge was not mistaken in deciding that the credibility and reliability of PW1 as a trustworthy and credible witness were in doubt. [51] This court is bound by the decisions of the Federal Court and the Court of Appeal in Wan Marzuki Wan Abdullah v. PP [2013] 1 CLJ 177 and [2008] 4 CLJ 631, which ruled that appeals of this nature, focusing on factual issues and particularly credibility issues, do not permit interference with the Trial Judge's findings – the primary fact-finder. The Judge further stated that “We need go no further than to quote the following passage from the judgment of Shaik Daud JCA in Andy Bagindah v. PP [2000] 3 CLJ 289: - “In the present case the learned judge concluded that there were discrepancies but those discrepancies were not material ones. Since this involved the credibility of witnesses, we held that the learned judge was a better person to decide and an appellate court ought not to interfere with such findings.” [52] In the case of Amri Ibrahim & Anor v. PP [2017] 1 CLJ 617, Federal Court stated as follows: - “[51] It is trite law that the view of the trial judge as to the credibility of a witness must be given proper weight and consideration. An appellate court should be slow in disturbing such finding of fact arrived at by the trial judge, who had the advantage of seeing and hearing the witness, unless there were substantial and compelling reasons for disagreeing.” S/N 5xnsXs/7hkeEZsdiEWuBWw Page 15 of 17 [53] This court is satisfied that the Trial Judge has diligently fulfilled her duty and found no error requiring intervention in the Trial Judge's factual findings and she consistently exercised caution and awareness, acknowledging that the testimony was given by a child. Element (d): The accused, at the time of committing the offense, held a position of trust as the victim's teacher [54] The trial judge was also satisfied that this element has been successfully proven through the testimonies of PW1, PW3, and PW5, as well as based on documentary evidence, namely the personal information of the accused (exhibit P7). [55] Exhibit P7 clearly shows that the accused held a position of trust towards PW1, as provided under Section 16 of the Sexual Offenses Against Children Act 2017, where the accused was PW1's teacher. The defence also did not dispute this fact during the trial. [56] At the end of the prosecution's case, the trial judge who had the benefit of observing the demeanour of the witnesses, found that PW1 was not a credible witness of the truth, so her testimony is doubtful and has caused the prosecution failed to prove a prima facie case. Therefore, the accused was acquitted and discharged without being called to enter his defence. [57] It is an established legal principle that the appellate court should refrain from interfering with the decision made by the trial court unless it is evident that the decision was erroneous and contrary to the law. S/N 5xnsXs/7hkeEZsdiEWuBWw Page 16 of 17 Conclusion [58] The elements of the charge and the credibility of the witnesses are crucial and material in proving the charges faced by the accused. If the testimony of the prosecution witnesses is not credible and doubtful regarding any material issue, then such testimony is fatal and affects the prosecution's case, resulting in a failure to establish and prove a prima facie case against the accused under Section 180 of the Criminal Procedure Code. [59] It is the finding of this Court that the trial judge did not err in ordering the accused to be acquitted and discharged of the charge as stated. Therefore, this Court dismissed the appeal by the prosecution. Dated: 26th July 2023 ..………………………….. (FATHIYAH BINTI IDRIS) Judicial Commissioner High Court of Malaya Butterworth, Penang S/N 5xnsXs/7hkeEZsdiEWuBWw Page 17 of 17 PARTIES: For the Appellant: Wan Amira Ruzaini binti Abdul Razak Deputy Public Prosecutor Penang State Legal Advisor Offices For the Respondent: Thevan a/l Rama Advocates & Solicitors Messrs Hakimi. R. Thevan & Co. Sungai Petani, Kedah S/N 5xnsXs/7hkeEZsdiEWuBWw