Pendakwa Raya v XXXX (KA-42JSKS-2-10/2024)

These appeals arise from the decision of the Sessions Court at Alor Setar in criminal trial KA-62JSK-41-11/2021, whereby the learned Sessions Court Judge (“SCJ”) found Syukrizan bin Ahmad (“OKT 3”), the Appellant in Appeal No. KA-42JSKS-1-02/2025 (“Appeal 1”) and another youthful offender (“OKT 1”) were guilty and convicted of a charge under section 375B of the Penal Code, punishable under the same section.

Meanwhile, the third person involved, who is the Respondent in Appeal No. KA-42JSKS-2-10/2024 ('Appeal 2'), is a child offender S/N 520ZdAcUw0mfj/DnyguqYQ …page 3 (“OKT 2”) who was 14 years old at the time of the commission of the offence and 16 years old at the time of Prosecution. After the court below held that a prima facie case had been made and called for the defence, OKT 2 converted his plea of not guilty to a plea of guilty.

This change of plea by OKT 2 was made after 3 years of trial. The SCJ was satisfied that after the charges being read again, the plea of guilt was unconditional and that he understood the nature and consequences of the plea.

Accordingly, the learned SCJ sentenced OKT 1 and OKT 3 to 13 years of imprisonment from the date of the order. OKT 2 was sentenced to a bond of good behaviour without surety for 2 years, with an additional requirement to report to the nearest Welfare Department every 2 months until completion of the bond.

As OKT 1 and the Prosecution were dissatisfied with the conviction and sentencing, respectively, an appeal was filed under Appeal 1 and Appeal 2.

As these appeals share the same matrix of facts, originated from the same trial, and rely on the same body of evidence adduced before the Sessions Court, this Court heard the appeals concurrently and delivered a single judgment disposing of them simultaneously. Brief Facts S/N 520ZdAcUw0mfj/DnyguqYQ …page 4

On 17 September 2021, after the victim, AAA (who was 12 years old at the time of the commission of the offence), chatted with OKT 1 through WhatsApp, she left her home with OKT 1 at around 2.00 AM. There was some additional backstory to this, including a plan to watch a race, but it was hampered due to heavy rain, which started with victim being picked up from the side of a field near the victim’s home and ended up with OKT 1 bringing the victim to a paid accommodation, which was referred to and recognised by the victim as ‘hotel papan’. For the sake of reading, I will refer to it as ‘the hotel’.

Upon arriving at the hotel with OKT 1, the victim saw OKT 2 and OKT 3 already waiting for them. A room was paid for, and all four of them lodged together in it.

According to the victim, OKT 2 removed her clothes partly and proceeded to fondle the victim’s breast with his hands.

Following that, OKT 1 completely removed his and the victim’s clothes. The victim described that they performed sexual intercourse on the bed where OKT 1 lay on the victim while the victim lay down on the bed covered by a blanket. It was vividly described that OKT 1 ejaculated semen on the victim at the conclusion of the intercourse. At the time, OKT 2 and OKT 3 were seated at a desk nearby. The victim then put on her clothing.

However, OKT 3 instructed the victim to remove her cloths including S/N 520ZdAcUw0mfj/DnyguqYQ …page 5 her pants. The victim described that OKT 3 grabbing her by the hip and penetrating her anus, although medical reports show this was a vaginal penetration. This was described in detail by the victim using male and female mannequins. The victim described feeling the pain of penetration through her anus, causing her to tear up due to the pain. At this time, OKT 2 and OKT 1 were seated at the same nearby desk.

After these horrendous events, all four of them slept until 9.00 PM. OKT 2 sent the victim to a bus station in Shahab Perdana on a bike, and the victim was escorted by OKT 1 and OKT 3. The victim’s mother picked her up at the bus station.

On 18 September 2021—the day after—a police report was lodged, the Investigating Officer brought the victim to the hospital for a medical examination. All three of them were arrested later that night. Decision of the Session Court 14. At the conclusion of the Prosecution's case, having heard the testimonies of seven Prosecution witnesses, the SCJ ruled that a prima facie case had been established and ordered all three OKTs to enter their defence. However, before the defence stage commenced, OKT 2, elected to change his plea to guilty. Upon accepting his plea and considering the Probation Officer's report, the SCJ convicted OKT 2 under section 375B of the Penal Code. Given his age at the time of the offence, the SCJ exercised her S/N 520ZdAcUw0mfj/DnyguqYQ …page 6 discretion under the Child Act 2001 and sentenced him to a two-year bond of good behaviour without surety under section 91(1)(b), with an additional condition under section 93(1)(a) requiring him to report to the Welfare Department every two months alongside his parents.

Meanwhile, OKT 1 and OKT 3 elected to give sworn evidence for their defence. After evaluating the evidence at the close of the trial, the learned SCJ found that their defence amounted to a bare denial and an afterthought, thus failing to raise any reasonable doubt as to the Prosecution's case. Consequently, on 6 February 2025, the SCJ found both OKT 1 and OKT 3 guilty as charged. Upon considering the mitigating and aggravating factors, the trial court sentenced each of them to 13 years' imprisonment, with the sentence to take effect from the date of the order. The Appeal and Decision of this Court 16. Before delving into the substantive merits of these appeals, this Court is compelled to note a procedural grievance raised by the counsels in both appeals. During the proceedings, both OKT 3's counsel (in Appeal 1) and OKT 2's counsel (in Appeal 2) highlighted the severe delay by the lower court's registry in preparing and supplying the records of appeal (Rekod Rayuan) (“Record of Appeal”).

This delay forced the counsels to prepare their initial submissions S/N 520ZdAcUw0mfj/DnyguqYQ …page 7 without the full benefit of the notes of proceedings (“Notes of Proceedings”) and the learned SCJ’s grounds of judgment (“Grounds of Judgment”). While this Court commends the counsels for their diligence in proceeding with their oral and written submissions despite this administrative hurdle, it must be stressed that the lower courts have a duty to ensure Records of Appeal are prepared expeditiously to prevent any prejudice to the parties and to facilitate the smooth administration of appellate justice.

Having subjected the evidence to a thorough and maximum evaluation as required by the law, and upon considering the entire Record of Appeal, the Grounds of Judgment of the SCJ and submissions advanced by both parties, this Court finds that the conviction is fundamentally safe (for Appeal 1) and the sentence is adequate (for Appeal 2). The appeals are dismissed, and the conviction and sentence remain undisturbed.

The following are this Court’s reasons for dismissing the appeals.

Appeal 1 20. OKT 3 (the Appellant in Appeal 1) appeals against his conviction under section 375B of the Penal Code. The core of OKT 3's argument rests on challenging the credibility of the 12-year-old victim, specifically pointing out that she denied anal penetration to the medical officer but testified to it in court. OKT 3 asserts that this contradiction renders the conviction unsafe. S/N 520ZdAcUw0mfj/DnyguqYQ …page 8

The pith of OKT 3's submission is that he was not a participant in the crime but merely an accessory. OKT 3 seeks to establish that the charges are inherently defective. Counsel argued that because the victim’s court testimony alleged OKT 3 committed anal penetration, he should have been charged under section 377A of the Penal Code (carnal intercourse against the order of nature) rather than section 375 (rape), which strictly requires vaginal penetration.

With respect, this argument betrays a fundamental misconception regarding the mechanics of joint liability and common intention within the statutory matrix of gang rape. Under the explicit statutory Explanation to section 375B of the Penal Code, the individual, granular physics of the assault—whether an accused person committed vaginal penetration, sodomy, or remained a passive bystander—is legally immaterial to the determination of guilt. The actus reus of vaginal penetration was indisputably executed by OKT

Because OKT 3 was physically present in the room, he facilitated the crime by securing and paying for the accommodation, and intentionally remained as part of a collective criminal enterprise; the operation of law seamlessly transposes the physical act of penetration from the primary actor to OKT 3. Common intention creates an indivisible pool of criminal liability; the law does not dissect the anatomy of participation when the actors have collective custody of the criminal design.

The defence further attacks the structural integrity of the Prosecution's case by pointing to the non-production of the physical S/N 520ZdAcUw0mfj/DnyguqYQ …page 9 mobile phone or video recording, characterising this omission as a fatal evidentiary deficit. This argument misapprehends the law of evidence. It is an elementary axiom of our law of evidence that the sworn oral testimony of a competent and credible witness who personally perceived or experienced an event constitutes direct evidence of the highest order. The SCJ, having enjoyed the distinct advantage of observing the victim’s live demeanour, arrived at a firm, unimpeachable finding as to her credibility. An investigative lapse—such as the failure to recover a digital device—cannot operate as a legal solvent to dissolve or nullify otherwise untainted, credible oral evidence. The victim's clear testimony regarding OKT 3’s active role in recording the assault remains potent and unassailable, firmly cementing the inference of common intention.

OKT 3's core argument relies on attacking the child victim's credibility due to contradictions between her oral testimony and the medical report. It is trite that an appellate court will not readily interfere with a trial judge's finding of fact and credibility unless it is plainly wrong. It is well established in our jurisprudence that the trial judge had the distinct advantage of observing the witness's demeanour and rightly found her competent and truthful. A. Judicial Evaluation of the Evidentiary Contradiction 25. The SCJ, in paragraphs 43 to 49 of the Grounds of Judgment, had taken notice and put her mind to this contradiction. In the said grounds, the learned SCJ considered carefully that the victim had indeed given evidence during trial that it was anal penetration, but S/N 520ZdAcUw0mfj/DnyguqYQ …page 10 in P1, her police report (which was lodged the next day after the incident) had testified she had engaged in sexual intercourse in turns (the specific wording was ‘bergilir-gilir'). P1 further mentioned OKT 3 and OKT 1 by name as individuals who penetrated her vagina.

The SCJ then considered the evidence adduced and which version was corroborated by contemporaneous evidence. It was found that the likelihood of vaginal penetration was higher compared to anal penetration, as the former was corroborated by two independent pieces of evidence: the police report and the medical report. The police report and medical report by SP4, as the SCJ puts it, saved the credibility of the evidence in her testimony. The SCJ further elaborated on her alternate findings, concluding that OKT 3 falls within the element of common intention, which will be discussed later.

In Jason Hew Kiong Chew v PP (Appeal No: 05(L)-67- 05/2024(Q)), the Federal Court assessed that an alleged material contradiction does not hold water if there was no material inconsistency. The Prosecution is correct in submitting that one or two discrepancies cannot form the basis for rejecting the whole testimony unless the witness is found not credible, which is not the case here.

In evaluating these contradictions, this Court is guided by the principle of maximum evaluation as enunciated in Loh Kam Foo v S/N 520ZdAcUw0mfj/DnyguqYQ …page 11 Public Prosecutor [1997] 4 MLJ 113. The trial court's duty at the close of the Prosecution's case is to subject the evidence to the most rigorous evaluation to determine whether the charge is established beyond a reasonable doubt. Discrepancies will inevitably be found in the evidence of a witness, particularly a traumatised child, but one or two discrepancies cannot form the basis for rejecting the whole testimony unless the discrepancies render the evidence inherently incredible. The learned SCJ correctly undertook this maximum evaluation, observed the victim's demeanour, and rightfully found her to be a credible witness despite the minor contradiction.

I am also in disagreement with OKT 3 that this contradiction was unexplained in the absence of the Prosecution’s re-examination. The victim had already agreed with the defence that her statement in the report was more accurate: S Saya cadangkan ingatan AAA pada hari itu adalah lebih jelas dan accurate berbanding dengan ingatan AAA pada hari ini memandangkan kejadian ini telah lama berlaku selepas dua tahun berlalu? J Betui S Saya cadangkan apa yang AAA beritahu pada doktor pada hari tersebut iaitu pada 18.09.2021 adalah betul dan lebih tepat berbanding dengan keterangan AAA pada hari ini dan sebelum ini kerana kejadian ini berlaku sudah lebih dua tahun, betul? J Betul [refer Encl 8, ROA vol. 2A, p 65 (p 62 printed)] S/N 520ZdAcUw0mfj/DnyguqYQ …page 12

The above evidence was also squarely considered by the learned SCJ. I do not find that this admission by the victim materially contradicts the Prosecution’s case. In fact, it strengthens it.

This crucial admission under cross-examination bridges the perceived chasm between the victim's oral testimony and the contemporaneous objective data. When the child victim agreed that her immediate post-incident recollections were more accurate, she effectively adopted the contents of her initial police report and medical disclosures—both of which conclusively verified vaginal penetration. Human anatomy and legal taxonomy may diverge in the mind of a traumatised twelve-year-old under the acute stress of a multi-actor assault; however, when her explicit admission is read in tandem with the independent medical findings of SP4, the evidentiary mosaic clarifies. The collective evidence points seamlessly to the fulfilment of the statutory criteria under section 375 of the Penal Code. Consequently, the charge under section 375B remains perfectly anchored, and I find no reason to disturb the SCJ's finding that the physical act of vaginal penetration was legally and factually established. B. The Operational Dynamics of Common Intention 32. In oral submissions, the counsels for both OKT 3 and Prosecution argued on whether the element of common intention was sufficiently established. The counsel for OKT 3 argues that the element was not sufficiently set out, as OKT 3 did not play any active role in the commission of the act. The Prosecution, naturally, argued otherwise S/N 520ZdAcUw0mfj/DnyguqYQ …page 13 with the position that section 375B does not require every single member to establish their specific liability to be convicted.

This Court takes notice that the charge against OKT 3 is fundamentally anchored on the statutory Explanation to section 375B of the Penal Code, which embodies the element of common intention. The established jurisprudential principles of common intention apply. As decided by the Federal Court in Chew Wai Keong & Anor. v. PP [2018] 3 CLJ 681 and Farose Tamure Mohamad Khan v. PP [2016] 9 CLJ 769, actual physical penetration by every single member of the group is not a strict prerequisite to establish liability for gang rape. The apex court held that where an accused was present at the scene of the crime for the purpose of facilitating or promoting the commission of the offence, such presence is in itself tantamount to actual participation in the criminal act.

This can be read clearly in the explanatory section of Section 375B of the Penal Code itself, which is reproduced here for ease of reference: Whoever commits gang rape shall be punished […] Explanation - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this section. [Emphasis added] S/N 520ZdAcUw0mfj/DnyguqYQ …page 14

The word ‘or’ used in the explanatory notes is greatly significant. The Prosecution submitted that the word ‘or’ ties together co-actors of the crime in terms of liability. Further, the plain meaning of ‘by one or more’ denotes that it is sufficient to establish the liability of one person in the group to convict the whole group, provided that common intention is also established. To this, I agree.

In evaluating the element of common intention, I have carefully considered the written submissions and the bundles of authorities filed by both parties, as well as their oral arguments.

In addition to the authorities supplied by the parties, this Court finds strong contemporary support in the recent Federal Court decision of Muhammad Akmal Zuhairi Azmal & Yang Lain v PP [2025] 4 CLJ 837, where Nordin Hassan FCJ discussed the principles behind section 34 in paragraphs 115 to 117 of the reported judgment. It was explained that, under section 34, it is unnecessary to establish the specific perpetrator of the exact physical act. What is necessary is to establish, through direct or circumstantial evidence, the prior meeting of minds to commit the very offence they were accused of, and participation in the commission of the intended offence through common intention. This recent apex court pronouncement firmly echoes the established jurisprudential principles that the trial court and the parties heavily relied upon, namely the Federal Court decisions in Chew Wai Keong (supra) and Farose Tamure (supra). In those cases, the apex court held that where an accused was present at the scene of the crime for the purpose of facilitating or promoting the commission of the offence, such presence is in itself S/N 520ZdAcUw0mfj/DnyguqYQ …page 15 tantamount to actual participation in the criminal act.

Coming back to the case at hand, the evidence irrefutably places OKT 3 at the crime scene. Taking the defence’s case at its highest, assuming OKT 3 had not performed sexual intercourse with the victim, it is clear that this was premeditated by OKT 1, OKT 3 and

OKT 3 also participated wholesale in the commission of the offence. He was waiting at the hotel when OKT 1 arrived with the victim, paid for the hotel room, and remained in the small, confined room while the victim was being raped by OKT 1, without making any attempt to intervene or assist the victim. This is sufficient circumstantial evidence to indicate a meeting of minds and participation in the commission of the offence. As OKT 1 did not appeal his conviction, the liability therefore extends to OKT 3 as well.

As alluded to in the above, the trial judge had considered this as part of her alternative findings to arrive at her guilty verdict towards OKT

The trial judge correctly inferred common intention from the totality of these circumstances and OKT 3’s conduct. This is further aggravated by the fact that OKT 3 was the eldest in the group, aged 20 at the time of the commission of the offence. As an adult, he possessed the moral authority to stop the commission of the offence, but instead, he participated in it or at least, encouraged it by omission. OKT 3’s defence of being a non-participant was rightly rejected by the trial judge as a mere bare denial and an afterthought. S/N 520ZdAcUw0mfj/DnyguqYQ …page 16

The classification of OKT 3’s defence as a mere 'bare denial' is further fortified by his own conduct during the defence stage. OKT 3’s primary alibi was that while OKT 1 was raping the victim, he was merely sitting in the room engaging in a conversation with OKT 2. Yet, crucially, OKT 3 failed to call OKT 2 to the stand to corroborate this narrative. Given that OKT 2 had already pleaded guilty and was available to testify, he was a material witness for the defence. OKT 3’s failure to call the very individual he claimed to be conversing with triggers an adverse inference under section 114(g) of the Evidence Act 1950 against his own defence, thereby rendering his uncorroborated version of events inherently improbable and incapable of raising any reasonable doubt.

I now turn to OKT 3’s secondary contention that the Prosecution suppressed evidence by failing to call crucial witnesses, specifically the hotel receptionist and the individuals named 'Syabil' and 'Iqmal'. OKT 3 relied heavily on the Federal Court decision in Rosli Yusof v. PP [2021] 7 CLJ 681 to argue that the Prosecution has a duty to call all material witnesses to unfold the narrative, and that their absence warrants an adverse inference under section 114(g) of the Evidence Act 1950.

I find no merit in this argument. The Prosecution has the prerogative to decide how to present its case and which witnesses to call. The failure to call these specific individuals did not create a fatal gap in the Prosecution's case. I am in agreement with the learned SCJ’s finding that the Investigating Officer (SP7) had conducted adequate investigations based on the available evidence. The victim's sworn S/N 520ZdAcUw0mfj/DnyguqYQ …page 17 testimony, which the SCJ found credible, together with the contemporaneous medical evidence, was sufficient to establish the case beyond a reasonable doubt. The absence of these peripheral witnesses does not render the conviction unsafe.

Therefore, this Court finds that the conviction is safe and appellate intervention is not warranted. Appeal 1 is dismissed.

Appeal 2 A. The Principle of Proportionality vs Specialised Juvenile Jurisprudence 44. In this appeal, the Prosecution seeks to overturn the two-year good behaviour bond imposed on OKT 2 under section 91(1)(b) of the Child Act 2001, arguing that the punishment is far too lenient for a serious crime like gang rape and thus manifestly inadequate.

The Prosecution further argues that the trial court did not consider the whole of the transaction of the offence as gang rape and only considered the specific actions of OKT 2. It was further contended that the learned SCJ placed far too much emphasis on the Probation Officer’s report (laporan Pegawai Akhlak) on OKT 2’s good behaviour at home, school, and in general.

As a preliminary matter regarding the Prosecution's appeal, this Court takes note of the oral application made by the learned Deputy Public Prosecutor during the hearing. The Prosecution sought to S/N 520ZdAcUw0mfj/DnyguqYQ …page 18 verbally amend paragraphs 8 and 9 of their written submissions, substituting the phrase 'rogol secara bergilir-gilir' (rape in turns) with the phrase 'rogol secara berkumpulan' (gang rape). This Court accepts this clarification, as it accurately aligns the Prosecution's submissions with the strict statutory language of the offence framed under section 375B of the Penal Code.

It is trite that in an appeal against sentencing, the threshold for appellate intervention here is ‘manifestly wrong’ in the sense that it is illegal or unsuitable to the proved facts and circumstances. The appellate court should be slow to disturb the sentence if the court below applies the correct principles in assessing the sentence (see PP v Mohamed Nor & Ors [1985] 2 MLJ 200).

In her grounds of judgment, the learned SCJ had taken the following considerations in her decision over OKT 2:

(i). OKT 2 was 14 years old at the time of the offence and therefore a bond of good behaviour or community service is suitable;

(ii). The victim stated that OKT 2 did not perform sexual intercourse but instead only fondled and kissed her;

(iii). OKT 2 was only present at the scene of the crime; S/N 520ZdAcUw0mfj/DnyguqYQ …page 19

(iv). Even though OKT 2 eventually pleaded guilty, it was after 3 years of trial hearing 7 witnesses and tendering of 29 exhibits, which incurred significant costs and time to the Court; and

(v). The charge was for gang rape, and thus OKT 2’s active participation should be deterred with a heavier sentence.

The learned SCJ also had taken the necessary considerations with regard to public policy and the interests of OKT 2.

Now, it is a cardinal principle that it is entirely within the trial court’s discretion to punish as it sees fit within the ambit of the punishable section and established judicial principles. Therefore, it is safe to say that punishment is tied to the provisions of the law as intended by Parliament. Although the crime is a serious offence, it must be tempered by the interests of OKT 2 as stipulated under the Child Act 2001.

Section 91 of the Child Act 2001 provides the Courts with the following levels of punishment in ascending order:

If a Court for Children is satisfied that an offence has been proved the Court shall, in addition to any other powers exercisable by virtue of this Act, have power to-

admonish and discharge the child;

discharge the child upon his executing a bond to be of good behaviour and to comply with such conditions S/N 520ZdAcUw0mfj/DnyguqYQ …page 20 as may be imposed by the Court;

order the child to be placed in the care of a relative or other fit and proper person-

for such period to be specified by the Court; and

(ii) with such conditions as may be imposed by the Court;

order the child to pay a fine, compensation or costs; (da) make a community service order;

make a probation order under section 98;

order the child to be sent to an approved school or a

impose on the child, if he is aged fourteen years and above and the offence is punishable with imprisonment and subject to subsection 96(2), any term of imprisonment which could be awarded by a Sessions Court.

Based on this section, the Court queried the Prosecution: if the sentence is considered inadequate, what would be an adequate sentence? The learned Prosecution suggested that OKT 2 be ordered to be sent to the Henry Gurney School or, at least, to perform 120 hours of community service within a period of not more than 6 months. The Prosecution also agreed that imprisonment is too harsh and does not recommend it, which I agree with, considering the smaller role played. This is after considering that OKT 2 pleaded guilty to the offence (albeit at a later stage) and is a first offender, both of which constitute mitigating factors. S/N 520ZdAcUw0mfj/DnyguqYQ …page 21

Thus, this Court is left with two choices as to what the Prosecution considers an adequate sentence: community service or being sent to Henry Gurney School. I will begin with the latter.

At the conclusion of the trial, OKT 2 was already 17 years of age and was preparing for his SPM exams. The trial court had taken this into consideration, along with his probation officer’s report that he was well-behaved in school and wanted to pursue further studies. According to the defence, he had scored well in his SPM. At the time of this appeal hearing, he was 19 years old. Therefore, he is clearly far too old in age for such a punishment. Although Henry Gurney School allows admissions up to age 21, there is no real benefit in making such an order for the remaining two years he would be entitled to be enrolled.

Hence, the only real option left is community service. The question remains whether the difference between community service and bond of good behaviour is such that it becomes manifestly inadequate?

This Court does not think that it is the case. The Prosecution argues that the difference between them is that the former compels OKT 2 to an active form of punishment where he would have to participate in the punishment, whereas the latter is a passive form of punishment, as he is only required to report himself and his parents to the nearest Welfare Office every two months for two years. I agree with the defence’s submission that this is a woeful form of S/N 520ZdAcUw0mfj/DnyguqYQ …page 22 mischaracterisation. A bond of good behaviour requires the person under the bond to refrain from any unlawful activity. If the bond is abided by, it would appear passive contribution is only required, but the real purpose is to punish the offender for recurrence. Thus, it is well-suited to helping a first-time offender cut out criminal behaviour in the bud.

In Lim Yoon Fah v. Public Prosecutor [1970] CLJU 66, where Chang Min Tat J (as he then was) considered the measurement of sentencing for the benefit of public policy against youthful offenders. The learned judge also gave considerable weight to the probation report as ordered by the court below and arrived at the inevitable conclusion that each case must depend on its own facts, and upon the character and antecedents of the offender (see also Ho Kim Luan and Anor. v. PP [1959] MLJ 159 and Lim Yoon Fah (supra)). Hence, in that case, after taking into consideration the contents of the probation report and the assurance by his parents that he would turn over a new leaf, the court substituted a sentence of 30 months' imprisonment and four strokes of rattan for a bond of good behaviour for a conviction of armed robbery.

It must be borne in mind that Lim Yoon Fah was in the context of a youthful offender. This case concerns a juvenile offender who is further protected by statutory mechanisms under the Child Act 2001. This Court has considered the submissions and authorities laid down by the Prosecution in terms of proportionality and public policy. However, the Prosecution has yet to overcome the threshold of ‘manifestly wrong or inadequate’ to warrant appellate S/N 520ZdAcUw0mfj/DnyguqYQ …page 23 intervention.

This Court finds the trial judge lawfully and properly exercised her discretion. OKT 2 was a juvenile (14 years old) at the time of the offence. The trial judge rightfully considered the paramount philosophy of the Child Act 2001, which prioritises the rehabilitation, reformation, and best interests of the child offender. Furthermore, the trial judge factored in crucial mitigating circumstances: OKT 2 pleaded guilty, he was a first-time offender, and he played a lesser role in the incident by not committing physical penetration. Further, his probation officer reported a high likelihood that he would turn over a new leaf, given his remorse.

The Prosecution strongly contended that OKT 2's guilty plea should carry minimal mitigating weight as it was not entered at the earliest opportunity, but rather at the defence stage after the victim had already endured the trauma of testifying. While the timing of the plea is indeed a valid concern, a guilty plea by a juvenile—even at a later stage—still demonstrates an ultimate acceptance of responsibility. The learned SCJ, having presided over the entire trial and observed the proceedings, was in the best position to evaluate the sincerity of this plea and to factor it correctly into her holistic assessment under the Child Act 2001.

It is apt to note that a bond for good behaviour is a statutorily recognised punishment for a child offender under the Child Act

Given the specific facts and the offender's background, there S/N 520ZdAcUw0mfj/DnyguqYQ …page 24 is absolutely nothing to suggest that the sentence is manifestly inadequate or wrong in law that justifies appellate intervention. The trial judge’s discretion was exercised judicially and reasonably.

While this Court acknowledges the abhorrent nature of the offence, it is a cardinal principle of appellate intervention that an appellate court will not interfere with the sentencing discretion of a trial judge unless the sentence is manifestly excessive, manifestly inadequate, or wrong in law.

During the appeal, the Prosecution strongly advanced the doctrine of proportionality in sentencing, citing the case of PP v Mohamed Danny Mohd Jedi [2018] 1 LNS 50. The Prosecution argued that because gang rape under section 375B of the Penal Code is a severe 'crime against person', the gravity of the offence, public interest, and the need for denunciation must outweigh the offender's personal mitigating factors, necessitating a heavier sentence such as placement in the Henry Gurney School.

I have given careful consideration to this submission. While proportionality is undoubtedly a sound and vital sentencing principle, it must be cautiously balanced against the mandatory statutory philosophy of the Child Act 2001 when the court is dealing with a juvenile offender. OKT 2 was 14 years old at the time of the offence. The learned SCJ appropriately balanced the gravity of the offence against OKT 2's youth, his guilty plea (which saved the 12- year-old victim from further trauma), and his lesser, passive S/N 520ZdAcUw0mfj/DnyguqYQ …page 25 involvement in the assault compared to the adult offenders. In light of these specific mitigating factors, the sentence of a good behaviour bond under section 91(1)(b) of the Child Act 2001 is a lawful exercise of judicial discretion. It is neither manifestly inadequate nor wrong in law to justify appellate intervention.

I am entirely cognisant of the learned Deputy Public Prosecutor's robust invocation of section 52B of the Penal Code to characterise gang rape as an unyielding 'serious offence' requiring a severe, custodial outcome. However, statutory interpretation dictates that provisions cannot be read in clinical isolation. While gang rape is undeniably an abhorrent, heinous crime against the person, its classification under the Penal Code does not mechanically extinguish or override the specialised, statutory sentencing regime and welfare-centric philosophy meticulously prescribed by Parliament under the Child Act 2001 for a fourteen-year-old juvenile. The Child Act 2001 operates as a self-contained code governing minority offenders, prioritising rehabilitation, restorative justice, and the best interests of the child over raw retributive denunciation. To allow a general penal classification to completely eclipse this specialised legislative mandate would frustrate the very object of the Child Act, reducing judicial discretion to a blunt, uncompromising instrument. B. Evaluation of Prosecutorial Concessions and Sentencing Discretion S/N 520ZdAcUw0mfj/DnyguqYQ …page 26

It is also pertinent to note a crucial concession made by the learned Deputy Public Prosecutor during the oral hearing before this Court. When questioned, the Prosecution conceded that had the learned SCJ imposed a Community Service Order—another form of non-custodial rehabilitative sentence—the Prosecution might not have pursued this appeal, acknowledging that while they might view it as inadequate, it would likely not cross the threshold into being 'manifestly inadequate'.

This concession is highly revealing. It demonstrates that the Prosecution’s grievance fundamentally lies not with a failure of justice, but rather a mere disagreement over the degree of leniency and the specific type of non-custodial rehabilitative order chosen by the trial judge. Where the debate is merely between choosing a good behaviour bond versus a community service order for a juvenile offender, this Court will not readily substitute its own views for the lawful discretion exercised by the trial court. The sentence remains within the permissible ambit of section 91(1)(b) of the Child Act 2001 and does not shock the conscience of the Court.

Therefore, this Court upholds the punishment handed down by the trial court for a bond of good behaviour as particularised. Appeal 2 is hereby dismissed. C. Conclusion 69. Upon careful consideration of the records of appeal and S/N 520ZdAcUw0mfj/DnyguqYQ …page 27 submissions, both oral and written, this Court finds that neither appeal warrants appellate intervention for the reasons explained above. Accordingly, both appeals are dismissed. Dated 30th May, 2026 ..................................................................................... YA Dr. Hj. John Lee Kien How @ Mohd Johan Lee Judge High Court of Malaya Alor Setar For the Prosecution (Appellant (Appeal 2) & (Respondent (Appeal 1)): Aisyah Al Humayrah Binti Kamaruzaman Attorney-General Chambers For OKT 3(Appeal 1): Mohd Amirul bin Mohd Rezuwan Messrs. Amirul Shahidda & Co (Advocates and Solicitors) For OKT 2 (Appeal 2): Aqbal Shiffuddin bin Adnan Sallehudin Messrs. Azhar & Fazuny (Advocates and Solicitors) Authorities Cases Chew Wai Keong & Anor. v. PP [2018] 3 CLJ 681 Farose Tamure Mohamad Khan v. PP [2016] 9 CLJ 769 Ho Kim Luan and Anor. v. PP [1959] MLJ 159 Jason Hew Kiong Chew v PP (Appeal No: 05(L)-67-05/2024(Q)) Lim Yoon Fah v. Public Prosecutor [1970] CLJU 66 S/N 520ZdAcUw0mfj/DnyguqYQ …page 28 Loh Kam Foo v Public Prosecutor [1997] 4 MLJ 113 Muhammad Akmal Zuhairi Azmal & Yang Lain v PP [2025] 4 CLJ 837 Namasiyiam Doraisamy v. Public Prosecutor & Other Cases [1987] 1 CLJ 540; [1987] CLJ (Rep) 241; [1987] 2 MLJ 336 PP v Mohamed Danny Mohd Jedi [2018] 1 LNS 50 PP v Mohamed Nor & Ors [1985] 2 MLJ 200 Rosli Yusof v. PP [2021] 7 CLJ 681 Legislation Section 375, 375B, 34, Penal Code