Sobri Bin Harun (AP-83-28-06/2022)

This case involves an offence of outraging modesty. The accused, a doctor at a private clinic, has been charged and tried in this court under section 354 of the Penal Code (“PC”). The complainant (“SP2”) is a patient who sought treatment from the accused at his clinic.

The charge against the accused is as follows: “Pertuduhan Bahawa kamu pada 12/09/2021 jam lebih kurang 10.50 pagi bertempat di Klinik Perubatan Mutiara Selama PT 3742, Jalan Menteri 34100 Selama, di dalam Daerah Larut Matang (Selama), di dalam Negeri Perak telah didapati menggunakan kekerasan jenayah kepada SP2 No. Kpt: XXXXXX-XX-XXXX dengan niat untuk mencabul kehormatannya dan oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 354 Kanun Keseksaan.”.

To protect the identity of the complainant in this case, this court will not disclose the complainant’s full name or identification number. Instead, the court will refer to the complainant as SP2 in this judgment.

The prosecution called a total of five (5) witnesses during the trial at the prosecution stage. They also tendered seven (7) exhibits, while the defence tendered one (1) exhibit during the prosecution stage of the trial.

At the end of the prosecution’s case, after undertaking a maximum evaluation of all the evidence presented, I found that the prosecution failed to establish a prima facie case against the accused. Consequently, the accused was acquitted and discharged from the charge.

Dissatisfied with the decision, the prosecution filed a notice of appeal to the High Court of Taiping. This judgment sets out the full reasons for this court’s decision.

The prosecution’s case is as follows. Towards the end of 2020, the complainant in this case, that is SP2, experienced health issues in her genital area, where she had a vaginal discharge which causing skin irritation around her genital area and thighs.

Due to these health issues, SP2 sought treatment at the Mutiara Selama Medical Clinic (“the clinic”), the location of the alleged incident. Initially, SP2 consulted an Indian female doctor, Dr. Reva, at the clinic. However, her condition did not improve, and the skin irritation continued to spread due to the discharge.

On 14.08.2021, SP2 met the accused for the first time. During their meeting at the clinic’s counter, SP2 explained her health problems to the accused. At that time, the accused only provided his phone number for SP2 to contact him for follow-ups on her condition.

On 7.09.2021, SP2 contacted the accused via WhatsApp, informing him of the persistent vaginal discharge and worsening skin irritation. SP2 also sent the accused some photographs of her condition through WhatsApp. The accused then told SP2 that an examination was necessary and asked her to visit the clinic. During the cross examination, SP2 stated that she was unfamiliar with the procedures for health examinations related to her condition but confirmed that she gave consent for an examination of her private area.

On 12.09. 2021, SP2 went to the clinic for her appointment. She was accompanied by her younger brother but was not accompanied by her mother or any female relatives. At the clinic, SP2 went to the counter first before being directed to the consultation room, where she met the accused. At this time, her younger brother was waiting outside. The accused then instructed her to proceed to the examination room next to the consultation room. According to SP2, she entered the examination room, followed by the accused.

In the examination room, the accused asked SP2 to remove her trouser and underwear and lie down on the examination bed. SP2 complied and removed her said clothing herself. The accused then left the room briefly to take some medical equipment from the consultation room. After removing her said clothing, SP2 lay on the bed with her legs facing the wall. SP2 observed that there were no other individuals especially AP-83-28-06/2022 4 of 25 nurses or female staff, in the room. It was only the accused and herself in the examination room.

During the examination, the accused told SP2 that the cause of her condition was a “yeast infection” in her vagina. SP2 testified that the accused’s manner of speaking at the material time was inappropriate, and he told her that she perlu membuang air keputihan selama 4 hari, which SP2 interpreted as the accused teaching her how to masturbate. The accused also asked SP2 whether she had ever masturbated before, to which she replied that she had not. SP2 testified that she did not fully understand what the accused meant at the time, as his remarks were vague.

According to SP2, the accused then inserted his finger against her clitoris and did in and out using his finger about 7 to 8 times (melakukan secara keluar masuk sebanyak 7 hingga 8 kali) without wearing gloves inside her clitoris. SP2 stated that she pushed the accused’s hand away, and he stopped after that. During cross-examination, SP2 admitted that she did not see with her eyes that the accused was not wearing gloves but felt it through her “body heat”.

The accused then told SP2 to put her trouser back on. SP2 returned to the consultation room, where the accused explained the prescribed medication and its uses to SP2. Later SP2 left the consultation room, collected her medication at the counter, made her payment, and went home with her younger brother.

The next afternoon, on 13.09.2021, SP2 lodged a police report [see: Selama Police Report 1708/21 (P3)]. The accused himself later went to the IPD Selama, where he was arrested [see: Selama Police Report AP-83-28-06/2022 5 of 25 1739/21 (P7)]. On 23.06.2022, the accused was charged in this court under section 354 of the PC.

At the close of the prosecution’s case, the defence submitted to this court that the prosecution had failed to establish a prima facie case against the accused. The key points of the defence submissions are summarised as follows:

The defence argued that the charge against the accused was lacked specificity, as it did not clearly describe how the alleged act of molestation happened. They contended that the claim of the accused inserting his finger 7–8 times into SP2’s clitoris was inherently improbable. They emphasised that the clitoris is an external part of the female anatomy, making the description of the act physically and anatomically implausible. Moreover, the prosecution failed to seek clarification or elaboration from SP2 regarding the alleged act, resulting in a significant gap in the prosecution’s case.

(ii) The defence submitted that SP2 had consented to the medical examination, including any necessary physical contact, as part of her treatment. SP2 herself testified that she had given permission for the accused to conduct the examination and was aware that it involved her genital area where she had a vaginal discharge which causing skin irritation around her genital area and thighs. AP-83-28-06/2022 6 of 25

(iii) The defence highlighted that the prosecution failed to produce independent or corroborative evidence to support SP2’s allegations. The defence submitted that the testimonies of SP3 and SP4 at the court were merely repetitions of what SP2 had told them. There were no witnesses or medical staff of the clinic was called to confirm SP2’s claims.

(iv) The defence submitted several contradictions in SP2’s statements, particularly concerning the sequence of events.

The defence submitted that an adverse inference should be drawn against the prosecution under section 114(g) of the Evidence Act 1950 for failing to call a clinic’s staff named Fatin as a prosecution witness. They argued that merely offering Fatin as a witness to the defence did not satisfy the prosecution’s burden of proving the case beyond a reasonable doubt.

(vi) The defence strongly objected to ID4(A-I), which consists of screenshots of WhatsApp conversations purportedly between the accused and SP2, being admitted as evidence in this court. The objection was based on the prosecution’s failure to adhere to the guidelines for adducing WhatsApp evidence in court. [18] Based on the above points, the defence submitted that the prosecution had failed to prove the elements of the charge under section AP-83-28-06/2022 7 of 25 354 of the PC and submitted that the accused should be acquitted and discharged without being called to enter his defence. ANALYSIS & FINDINGS

Is SP2’s testimony credible, clear, and convincing enough to support the prosecution’s case? Principles [19] In cases concerning sexual offences, where the prosecution relies very substantially on the victim’s testimony to sustain a conviction, that evidence must be “unusually convincing”, in the sense that it must be sufficient, in and of itself, to overcome any reasonable doubts that might arise from the lack of corroboration (see: Public Prosecutor v Mardai [1950] 1 MLJ 33, per Spenser Wilkinson J). [20] The ‘unusually convincing’ test was explained to mean a testimony that, when weighed against the overall backdrop of the available facts and circumstances, contains the “ring of truth” that leaves the court satisfied that no reasonable doubt exists in favour of the accused (see: the Singapore Court of Appeal case of Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik [2008] 5 SLR 601, per Andrew Phang Boon Leong JA at [39]). [21] In assessing the witnesses especially a complainant in sexual offences cases, this court adopt the approach by the Singapore Court of Appeal case of in Farida Begam d/o Mohd Artham v Public Prosecutor AP-83-28-06/2022 8 of 25 [2001] 3 SLR(R) 592 where the trial judge can make a finding on the credibility of a witness based on some or all of the following:

demeanour of the witness;

the internal consistency (or lack thereof) in the content of the witness’ evidence; and

he external consistency (or lack thereof) between the content of the witness’ evidence and the extrinsic evidence (for example, the evidence of other witnesses, documentary evidence or exhibits). The clarity in the charge [22] This court noted the submission of the learned defence counsel for the accused that the charge does not clearly specify to the accused (and to this court) the act allegedly committed to outrage SP2’s modesty. Instead, the charge makes a general allegation that the accused used criminal force on SP2 with the intent to outrage her modesty. [23] However, in PP v Gokul Pariyar [2021] CLJU 1155, the High Court decided that for a charge under section 354 of the PC, the prosecution is not required to specify the precise act committed by the accused against the complainant. For the actus reus element, it is sufficient to state the essential ingredient that the accused applied criminal force to the victim. The specific manner of the offence need not be detailed. AP-83-28-06/2022 9 of 25 Inherent probability or improbability [24] Considering the principles disscussed in paragraphs [19] – [21], in my opinion, SP2’s testimony fails to meet the “unusually convincing” high threshold for the following reasons. [25] Returning to SP2’s testimony, and without a proper explanation from SP2 herself, this court agree with the learned defence counsel that the claim of the accused inserting his finger 7–8 times into SP2’s clitoris is inherently improbable and unlikely to have occurred. SP2 testified that the accused inserted his finger (with emphasis on the term "inserted”) into her clitoris. Although this specific act was not detailed in the charge, the court believes that the “criminal force” referred to in the charge against the accused pertains to the alleged act of the accused inserting his finger 7–8 times into SP2’s clitoris. [26] The defence submits, and this court agree, that the clitoris is not an internal part of the female genitalia. It is anatomically improbable because the clitoris is neither a cavity nor an orifice into which a finger can be inserted. At first glance, the defence counsel’s argument may appear to be a semantic issue or a matter of SP2’s choice of terminology/right word. [27] However, this argument becomes crucial because, with respect, the prosecution never, at any point, asked SP2 to elaborate or clarify the alleged act of the accused inserting his finger 7–8 times into SP2’s clitoris. What exactly did SP2 mean, considering that such an act is anatomically improbable since the clitoris is not a cavity or an orifice into which a finger can be inserted? Moreover, there was no medical or expert opinion AP-83-28-06/2022 10 of 25 regarding this for this court consideration. This issue is further compounded by the investigating officer’s testimony (“SP5”), which stated that the accused inserted his finger 7–8 times into SP2’s genitalia, without using the term “clitoris” as SP2 consistently did throughout her testimony. [28] With respect, the prosecution failed to resolve the confusion arising from these two pieces of evidence. Without such an explanation and the corresponding evidence on record, it is challenging for this court to reconcile the discrepancies between these two sets of evidence. It must be noted that the accused was not clearly informed of what specific act he was alleged to have committed against SP2, apart from the general accusation of using criminal force to outrage her modesty. [29] Therefore, this court conclude that there is ambiguity and confusion in SP2’s evidence regarding how the accused used criminal force against her to outrage her modesty. [30] Moreover, it has also been stated in numerous cases that the fact that the evidence given by the witnesses of one party was unshaken or unbroken is not per se an all sufficient acid test of credibility and that the inherent probability or improbability of the fact in issue must be the prime consideration (see for instance Muniandy & Ors v PP [1966] 1 MLJ 257, Dato Mokhtar bin Hashim v PP [1983] 2 MLJ 232 at p 247, and PP v Neoh Wan Kee [1985] 1 MLJ 368 at p 372). [31] Following the above discussion, this court finds SP2’s allegation that the accused inserted his finger into her clitoris 7 to 8 times inherently improbable and unlikely to have happened. Consequently, this court found not safe to say that the evidence of the SP2 is unusually convincing. AP-83-28-06/2022 11 of 25 SP2’s subsequent conduct [32] This court also found that SP2’s subsequent conduct after the alleged incident where the accused allegedly inserted his finger 7–8 times into her clitoris was troubling. SP2 testified that the accused had inserted his finger 7–8 times into her clitoris, but what was concerning was that SP2 did not take any action that could be seen as a reasonable response to defend herself against the accused. Under cross-examination by the learned defence counsel, SP2 claimed she pushed the accused’s hand away and felt traumatised by the incident. However, this testimony did not align with SP2’s actions afterward, as she remained in the examination room, went to a consultation room with the accused, and made a payment at the clinic counter. There was no any threat from the accused. [33] In the court’s view, immediately following the incident, SP2 had an opportunity to leave the examination room after the alleged incident took place. Additionally, SP2 did not scream for help. The court believes that if an unwanted incident occurs, a reasonable response would be to flee from that examination room. In this case, SP2 did not leave immediately. Instead, she remained in the examination room and later went to a consultation room with the accused to discuss the necessary medication. She also made a payment at the clinic counter. This court finds it unreasonable for someone who claims to have been treated in the manner alleged by SP2 to not leave the clinic immediately or seek assistance from the clinic staff present. [34] In the case of Azmi Mahmood v PP [2020] CLJU 1041, the High Court addressed a similar issue to the current case, dealing with a charge under section 354 of the PC. In this case, the complainant (SP1) went to AP-83-28-06/2022 12 of 25 the accused’s house to return a borrowed screwdriver. The accused suggested that SP1 follow him to the toilet to demonstrate how to use the flush handle, which led to inappropriate physical contact. SP1 then faced unwanted advances, including being groped and kissed, which escalated to more serious physical acts. The High Court, in setting aside the conviction from the Magistrate Court, held as follows: “[29] Semasa kejadian berlaku, SP 1 tidak menjerit meminta tolong dan tidak pun melawan perayu. SD 2 adalah jiran perayu. Rumah SD 2 berada di kawasan rumah perayu dan SP 1. SD 2 telah memberi keterangan bahawa beliau tidak mendengar apa-apa jeritan meminta pertolongan. SD 2 berada di rumah sepanjang hari tersebut. Menurut keterangan SP 1 sendiri, beliau tidak menjerit dan/atau melawan perayu. SP 1 juga menyatakan bahawa beliau tidak menyuruh perayu berhenti. Sebaliknya, beliau hanya menyatakan "Ahhhh" apabila diperlakukan sebegitu oleh perayu. Mahkamah sedar dan mengambil maklum bahawa setiap individu mempunyai reaksi yang berbeza kepada sesuatu perkara yang berlaku, namun perlakuan SP 1 yang tidak menjerit atau meminta tolong dan tidak melawan perayu adalah pada pandangan mahkamah ini, tidak munasabah.”. [35] The facts in Azmi Mahmood (supra) and the present case share significant similarities, guiding this court to adopt Her Ladyship’s observations and reach a similar conclusion. External Consistency [36] Another reason is the existence of a material contradiction between the testimony of SP2 and the investigating officer, SP5. For example, SP2 stated that the accused inserted his finger into SP2’s clitoris 7 to 8 times. SP5, however, testified that based on her investigation, the AP-83-28-06/2022 13 of 25 accused had inserted his finger into SP2’s genitals (kemaluan) 7 to 8 times. This discrepancy cannot be considered a minor one as submitted by the learned deputy public prosecutor, as it relates directly to the core charge against the accused. This contradiction should be viewed in light of the ambiguity in SP2’s testimony discussed above. Inserting a finger into the genitals is not the same as inserting a finger into the clitoris. The prosecution cannot argue both that it was in the clitoris and at the same time argue it was in SP2’s genitals. The court does not deny that the term ‘clitoris’ mentioned by SP2 is also part of the female genitalia, but SP5 has not provided an explanation regarding whether the term ‘genitals’ used by SP5 refers to the clitoris of SP2 or otherwise. [37] There are also other material contradictions between the testimonies of SP2 and SP5 that the court cannot regard as minor discrepancies. SP2 testified in court that on the day of the incident, SP2 had gone to the consultation room to meet the accused before the accused directed SP2 to the examination room, which was located next to the consultation room. After the examination, SP2 stated that SP2 then went back into the consultation room to obtain a prescription from the accused. SP5, on the other hand, testified that based on his investigation into SP2, SP2 had reported that SP2 had only entered the examination room and did not enter the consultation room. Additionally, there is also a material contradiction between the testimonies of SP2 and SP5 regarding SP2’s position during the examination by the accused in the treatment room. [38] So now, the important question to ask is this: Is the SP2’s testimony so unusually convincing that it can stand independent of corroboration? Based on the above reasons, I think not.

(ii) Is there independent corroboration of the SP2’s evidence? [39] In sexual offences case, it is trite law that even where the evidence of the complainant is not unusually convincing, the legal burden of the prosecution may still be discharged if there is sufficient corroboration. The trial judge should identify which aspect of the evidence is not so convincing before looking for supporting evidence and ask whether, in taking the weak evidence together with the supporting corroborative evidence, he is satisfied as a whole that the prosecution’s case is proved beyond a reasonable doubt. In this regard, corroboration is approached in a practical manner. The court looks at the substance and relevance of the evidence to determine if it is supportive or confirmative of the weak evidence which it is meant to corroborate (see: Aziz bin Mohamed Din v PP [1996] 5 MLJ 473 and Gan Leong Gee and Another v PP [1969] 2 MLJ 76). [40] Corroboration in a legal sense connotes some independent evidence of some material fact which implicates the accused person and tends to confirm that he is guilty of the offence (see: Ah Mee v PP [1967] MLJ 220). [41] Now, in this case, is there independent evidence to support SP2’s testimony, or do the gaps in the prosecution’s case weaken it? The prosecution brought two witnesses, SP3, who is the victim’s father, and SP4, the victim’s sister, to corroborate SP2’s testimony. However, based on the court’s assessment, the testimony of these family members (SP3 and SP4) does not constitute independent evidence and cannot corroborate SP2’s testimony because they originate from the same source, i.e., SP2. Corroboration must be independent, and consistency AP-83-28-06/2022 15 of 25 alone is not sufficient to establish corroboration. Moreover, a witness cannot corroborate herself. [42] Regarding this matter, this court referred to the dicta of Lord Hewart CJ in the case of R v Whitehead [1929] 1 KB 99 which has held as follows: “In order that evidence may amount to corroboration it must be extraneous to witness who is to be corroborated. A girl cannot corroborate herself; otherwise it is only necessary for her to repeat her story 25 times in order to get corroboration of it.” [43] Therefore, it is clear that the evidence of SP3 and SP4 cannot qualify as corroboration. In the absence of any supporting evidence and given that SP2’s testimony is not unusually convincing, the court is not prepared to call the accused to enter his defence.

(iii) Is Fatin a crucial witness? Does the failure to call her justify an adverse inference against the prosecution? [44] The prosecution has argued in their submission that the accused took the opportunity with SP2 because only the accused and SP2 were present in the examination room at the clinic. The prosecution contends that the accused had the planning and opportunity to commit the act of molestation because when Fatin, a female worker at the clinic, entered the treatment room, the accused could have asked SP2 whether she needed a female companion during the examination. The prosecution also argued that as a medical practitioner, the accused would surely know that if a patient were female and the examination involved sensitive areas, it AP-83-28-06/2022 16 of 25 was appropriate and necessary to ensure there was another woman present with the patient at all times during the examination. [45] On the other hand, the defence’s line of defence is that there was a female nurse present in the examination room and the accused did not take any opportunity with SP2. [46] It is a well-established principle in law that the prosecution has an absolute discretion in determining whether to call any particular witness or not (see: Ti Chuee Hiang v Public Prosecutor [1995] 3 CLJ 1). The court cannot compel or dictate which witnesses should be called or not. The defence cannot compel this either. What is important for the court is to assess whether, by the end of the prosecution case, with the evidence adduced, the prosecution has established its case. However, if the failure to call any witness disrupts the narrative of the prosecution’s case, or if it is shown that the prosecution’s failure to call a witness has led to the ‘withholding or suppression of evidence’, this will invoke the application of section 114(g) of the Evidence Act 1950, which establishes an adverse inference if evidence that should have been adduced is not (see: Munusamy v Public Prosecutor [1987] CLJ 221). [47] After reviewing the available evidence regarding Fatin, this court finds that Fatin is a material witness who could assist this court and the narrative of the prosecution in determining whether the allegations made by SP2 that the accused took advantage/opportunity and that there were no female staff in the examination room are true. This is especially given that SP2’s testimony is not unusually convincing and no independent corroborative evidence. The name of Fatin has come up many times throughout the prosecution case. AP-83-28-06/2022 17 of 25 [48] It is true that the prosecution offered Fatin as a witness to the defence at the end of their case. However, in the court’s view, the burden of the prosecution is not discharged merely by offering Fatin as a witness to the defence. According to the prosecution’s own submissions which apparent from evidence from SP2 and SP5, Fatin did attend the examination room but allegedly was asked to leave by the accused. In this situation, Fatin was a material witness who was present at the scene. There was nothing to prevent the prosecution from calling Fatin, given there was no other corroboration evidence. Based on my check of the Court’s CMS system, the prosecution applied for Fatin to be subpoenaed four times, but failed to call her as a witness and closed the prosecution’s case without Fatin providing any testimony. [49] This court believes that although section 134 of the Evidence Act 1950 does not require a certain number of witnesses to prove a fact (see: Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457), in cases where the fact is contested, especially in sexual assault cases, the best supporting evidence should be adduced by the prosecution to support the complainant’s testimony. In this case, both SP2 and SP5 state that the accused planned and created an opportunity by not allowing Fatin to be present in the examination room and asked her to leave. Therefore, Fatin’s testimony becomes crucial in corroborating SP2’s allegations. [50] Based on the above, this court accepts the submission of the defence counsel that the failure of the prosecution to call Fatin has led to the application of section 114(g) of the Evidence Act 1950, in accordance with the principles set out in the case of Munusamy v PP (supra). This failure can be characterised as ‘withholding or suppression’ of evidence AP-83-28-06/2022 18 of 25 that should have been adduced but was deliberately not adducced, with respect.

(iv) Is the WhatsApp evidence (ID4) admissible? [51] The prosecution adduced nine screenshots of WhatsApp conversations, marked as ID4(A-I). These conversations, among others, are claimed to be between SP2 and the accused, both before and after the alleged incident. The defence strongly objected to the admissibility of ID4(A-I) as evidence, arguing that the prosecution did not follow the necessary guidelines for admitting this type of evidence. [52] So now, are the WhatsApp screenshots images (ID4(A-I)) admisibble as evidence? According to the High Court in Mok Yii Chek v Sovo Sdn Bhd & Ors [2015] MLRHU 196, print-outs of emails and WhatsApp messages fall under the broad definition of “document” under the Evidence Act 1950. However, even if a party disputes the genuineness of a print-out of a WhatsApp message, it may still be admitted as evidence if certain criteria are met. The party adducing the WhatsApp message must prove that it pertains to the existence or non-existence of a fact in issue or is otherwise relevant to the proceedings. Additionally, the procedural requirements for admitting a document produced by a computer must be fulfilled (e.g., through oral evidence that the print-out was produced by the computer during its ordinary use, or by providing a certificate under section 90A of the Evidence Act 1950). [53] Returning to this case, it is undeniable that ID4(A-I) is a mere screen snapshot/image, not the original WhatsApp messages. The original messages were never presented for examination by the parties to AP-83-28-06/2022 19 of 25 confirm that the contents of the screenshots are the same as the original copy. No reasonable explanation was given by the prosecution regarding their failure to produce the original WhatsApp conversations. Furthermore, some of the screenshots lack dates, and the court also does not know who the recipients of the messages are. While there is a phone number of the recipient, no evidence was provided to the court confirming that the phone number listed as the recipient in the WhatsApp messages belongs to the accused. In Mohamad Azhar Abdul Halim v Naza Motor Trading Sdn Bhd [2017] 1 MELR 383, the court refused to attach any weight to a screen snapshot image of a WhatsApp messages when the original was not produced before the court. [54] Moreover, the court has concerns about conflicting testimony provided by the investigating officer in this case, SP5, regarding these WhatsApp messages. During the EIC on 26/3/2024, SP5 stated that only ID4 could be adduced because when asked, the complainant claimed to have blocked the accused, and these conversations were not on the phone anymore. However, when SP5 continued giving testimony on 11/7/2024, she stated that the SP2’s phone had been damaged, and hence it was not sent for forensic analysis to confirm the content of these conversations. So, which testimony is correct? Why telling conflicting testimony on this issue? [55] Even if the prosecution were to tender the original print of the WhatsApp conversation, it must still meet the procedural requirements for admitting a document produced by a computer. This includes providing oral evidence that the print-out was produced by the computer during its ordinary use, or by submitting a certificate under Section 90A of the Evidence Act 1950. In this case, the prosecution failed to fulfill these AP-83-28-06/2022 20 of 25 requirements. There is no evidence before this court showing that ID4 was produced by a computer in the course of its ordinary use (either through oral evidence or by a certificate). Therefore, ID4 cannot be accepted as evidence and does not carry any evidentiary value for the court to place any weight on it.

Did SP5 conduct a complete investigation? [56] The shortcomings of the investigating officer (SP5) have significantly weakened the prosecution’s case. The investigation was conducted incompletely, leaving several key aspects of the case uninvestigated. SP5 failed to gather crucial evidence, such as medical and forensic evidence related to the alleged WhatsApp messages between the accused and SP2 before and after the incident. SP5 admitted in court that she did not record a section 112 statement from SP2’s younger brother, who was the first person to see her after leaving the accused’s consultation room. [57] In Pendakwa Raya v Musarat @ Musarat Bibi bt Sheik Abdullah [2023] MLJU 1902, the High Court on appeal found that the investigation by the police was incomplete due to the failure to record the statement of a material witness who played a crucial role in corroborating PW1’s evidence. The investigating officer failed to consider crucial documentary evidence, such as WhatsApp messages. Instead, SP5 relied solely on the police report made by the complainant. The serious incompetence on SP5’s part resulted in a significant gap in the prosecution’s case, leading to the accused’s acquittal being upheld. AP-83-28-06/2022 21 of 25 [58] So too here. SP5 did not record a statement from SP2’s younger brother, who had accompanied her to the clinic and was the first person to see her after leaving the accused’s consultation room. His evidence is important to corroborate SP2. SP5 also failed to consider the WhatsApp messages (ID4) and made no effort to seize the mobile phones of the parties involved (SP2 and the accused) to verify its authenticity. Instead, SP5 relied solely on a screenshot of the WhatsApp messages provided by SP2. SP5 could have seized the accused’s phone and sent it to forensics for verification if indeed SP2’s phone was damaged after the incident. Moreover, SP5 also did not take steps to verify the contact number of the recipients in ID4. [59] It is well-established that any omission by the investigating officer cannot automatically be used against the prosecution in a case of this nature. The interest of justice demands a thorough scrutiny of every ‘act’ or ‘omission’ by the investigation officer. Allowing any lapse to favor the accused would amount to giving a premium for such lapses (see: Elonita Abayon Chua (W/Filipina) v Pendakwa Raya [2018] 5 MLJ 482). However, as decided in Musarat Bibi (supra), there were serious gaps in the investigation in this case, causing a significant gap in the prosecution’s case. SP5 candidly admitted in court to relying solely on the police report made by SP2. Therefore, this court is guided to make a similar order as in Musarat Bibi (supra), i.e., to acquit and discharge the accused.

(vi) What are the clinical procedures for treating the type of illness experienced by SP2? [60] Before delving further into this point, I wish to start with the case of Nor Hafiz Hanapi v PP [2024] CLJU 1082. This is a High Court decision AP-83-28-06/2022 22 of 25 which is binding on this court. The summary of the case is as follows. The case involved two charges against the accused, similar to the current case, involving the offense of outraging modesty (one of the charge). It involved a patient as the complainant and a doctor as the accused. Like the current case, the Nor Hafiz Hanapi (supra) case also involved an offence in a clinical examination room where it was alleged that the accused had indecently assaulted the patient. In this case, SP1 made a police report stating that while being examined in the examination room by the accused, SP1 was diramas in the breast area, and the accused conducted an oral examination of SP1 using a condom worn on his finger. In overturning the conviction of the accused, the High Court made the following decision: “[39] Apa yang lebih menarik dalam kes ini ialah tiada keterangan daripada pegawai perubatan yang menyelia Perayu untuk mengesahkan apakah prosedur rawatan yang wujud apabila ia melibatkan pesakit wanita dan pegawai perubatan lelaki. Di samping itu tiada juga keterangan daripada pegawai perubatan berkenaan dengan prosedur klinikal bagi rawatan yang melibatkan jenis penyakit yang dialami oleh SP1 dan adakah tindakan rawatan oleh Perayu adalah konsisten dengan tatacara rawatan dan prosedur klinikal tersebut. Ketiadaan keterangan tersebut menyebabkan Mahkamah tidak boleh membuat kesimpulan bahawa tindakan yang dilakukan oleh Perayu terhadap SP1 adalah sesuatu yang diketegorikan sebagai yang telah melampaui prosedur rawatan dan prosedur klinikal yang boleh menyebabkan ianya perbuatan tersebut termasuk di bawah kesalahan di bawah seksyen 354 dan 377D Kanun Keseksaan serta dapat ditunjukkan bahawa Perayu mempunyai niat jenayah untuk melakukan perbuatan tersebut.”. [61] This court is similarly guided by the above decision from the High Court. In this case too, there was no evidence from the medical side AP-83-28-06/2022 23 of 25 regarding the treatment procedures in clinics when it involves female patients and male medical officers, particularly in cases where the illness affects the private area of female patients. Additionally, there was no evidence from the medical officer concerning the clinical procedures for the treatment related to the type of illness experienced by SP2. This created confusion regarding the clinical procedure, especially when the defence pointed out that the clitoris is an external part of the female anatomy. It was argued that it is anatomically improbable for someone to insert a finger into the clitoris multiple times as described. This uncertainty left the Court unclear about the clinical procedures and the type of treatment that should have been provided to SP2 by the accused. In Nor Hafiz Hanapi (supra), the High Court held that such absence is fatal to the prosecution’s case. CONCLUSION [62] With that, the court concludes that the prosecution has failed to establish a prima facie case for the charge under section 354 of the PC. Undeniably, there are so many gaps in the prosecution case. In criminal cases, a strong burden of proof (that is beyond reasonable doubt) is required and cannot be taken lightly to fill any gaps in the prosecution’s case. Whether this court is confident in the guilt or innocence of the accused, its decision must be based solely on the evidence adduced before it. [63] In sia soon suan v PP [1965] 1 LNS 165, the Federal Court held as follows: AP-83-28-06/2022 24 of 25 “Nevertheless, the requirements of strict proof in a criminal case cannot be relaxed to bridge any material gap in the prosecution evidence. Irrespective of whether this court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else.”. [64] Therefore, the accused should not be called to defend him selves against the charge, as there is reasonable doubt in the prosecution’s case. The benefit of the doubt that arises in the prosecution’s case should be given to the accused. Accordingly, the court orders that the accused be acquitted and discharged. The bail money shall be refunded to the bailor. [65] My decision was based on the reasons above however, I am guided by the decision of High Court. Dated: 27.09.2024 signed (PRABAKARAN RAJOO) Magistrate Magistrate Court Selama Perak Darul Ridzuan AP-83-28-06/2022 25 of 25 List of Counsel(s): For the prosecution: Puan Nor Arfahanim Azureen binti Arfanuddin Pejabat Timbalan Pendakwa Raya Taiping Lido Business Center, No 10/21 & 12/21 Tingkat Atas, Jalan Manecksha, 34000 Taiping, Perak Darul Ridzuan. For the accused: Encik Sudesh Singh a/l Salinder Singh (Puan Norfasihah binti Mohamad Azmi with him) Sudesh Narinder and Partners 73A, Jalan Maharaja, Pusat Bandar Parit Buntar, 34200 Parit Buntar, Perak Darul Ridzuan.