Syed Mohd Iskandar Bin Syed Saggof v Pendakwa Raya (JB-42JSKS-4-08/2023)

This is an appeal against the decision of the Batu Pahat Sessions Court convicting the accused for an offence under Section 376(2) of the Penal Code and sentencing him to sixteen (16) years of imprisonment with six (6) whipping and two (2) years of police supervision upon completion of his imprisonment.

The Appellant will be referred to as the accused hereinafter.

The charge against the accused read: -

“BAHAWA KAMU PADA 10/06/2019 JAM LEBIH KURANG 00 PETANG DI HOTEL 57 DI ALAMAT DI NO. 8.1, JALAN SULAIMAN OFF JALAN SULTANAH, BATU PAHAT DALAM DAERAH BATU PAHAT, DI DALAM NEGERI JOHOR, TELAH DIDAPATI MEROGOL PENAMA: SITI SAEIDATUL AENN BINTI MOHD AFANDAI, KPT: 031108-01-1046 YANG BERUMUR 15 TAHUN 8 BULAN. OLEH YANG DEMIKIAN KAMU TELAH MELAKUKAN SATU KESALAHAN YANG BOLEH DIHUKUM DI BAWAH SEKSYEN 376(2) KANUN KESEKSAAN.” August 13, 2024 3 [4] The accused was charged with raping an underage girl who was 15 years and 8 months at the material time. The incident took place on 10.6.2019 at around 5 pm in a hotel room at Hotel 57, Batu Pahat. [5] According to the victim (PW2), who was a form four student at the time of the incident, although she and the accused stayed in the same housing area at Taman Seri Sulong, Parit Sulong, Batu Pahat, but she only got to know him closer towards the end of June 2019. The victim testified that the accused got her handphone number from her friend, Arif. [6] On the date of incident, the victim was having a meal with her friend, Puteri, at McDonald’s, Batu Pahat around 3 pm. The accused called her but she did not answer the call. Later the accused sent her a WhatsApp message asking her to accompany him to repair his car. When the victim agreed, the accused came to the McDonalds to fetch her. From the McDonald’s, the accused brought the victim to a Petronas petrol station where the accused met his friend and thereafter took the victim to a hotel where the incident of rape took place. [7] On arrival at the hotel, the accused told the victim that he wanted to take a bath. The victim then told the accused to go up to the hotel by himself. The accused then opened the car door, pulled the victim out of the car and told her to follow him up to the hotel. When they got to the reception counter, the accused gave his identity card to the hotel receptionist. After getting the access card, the accused took the victim to a room on the second floor. August 13, 2024 4 [8] Upon entering the room, the accused pushed the victim onto the bed. He removed the victim’s clothes and underwear followed by his clothes and underwear. Her then kissed the victim on both her cheeks and held her breasts using both his hands. The victim tried to avert the accused actions but the accused ignored her. [9] This was followed by the accused inserting his penis into the victim's vagina. When the accused inserted his penis into the victim’s vagina, he was on top of her. Although the victim pushed away the accused he ignored her. The victim was sure that the accused penis inside her vagina because both the accused hands were on her waist. The victim also felt pain when the accused penis was inside her vagina. After three or four thrusts, the accused took out his penis and placed a towel from the bed in front of his penis. He then ejaculated. [10] Thereafter the accused told the victim to go to the bathroom. The victim washed her vagina in the bathroom and got dressed. After that, the accused used the bathroom and got dressed. Both of them then left the room. According to the victim, they were in the room for not more than 10 minutes. [11] The accused took his identity card from the hotel counter. Both of them got into the car and the accused brought the victim to a car workshop. Once the accused settled his matters at the workshop, the accused sent the victim to a Caltex petrol station at Taman Sri Sulong where her friend Arif was waiting to take her back home. [12] The victim initially did not speak to anyone about the incident. However, sometime later, she told her friends Atikah and Adilah that August 13, 2024 5 the accused had touched her upon finding out that both of them had gone out for a meal with the accused. [13] The victim only lodged a report on 4.8.2019 after the victim’s father got to know from one of the victim’s friends called Ejal that the victim was raped and after her father confronted her. According to the victim, Ejal knows about the incident from her friend, Adilah. After the victim related the incident to her parents, her father took her to IPD Batu Pahat to lodge a police report. [14] The victim was examined by a specialist from the Obstetric and Gynaecologist Department at Hospital Sultanah Nora Ismail, Batu Pahat (PW3). Upon examination, PW3 found a complete hymen tear at 3 o’clock and 7 o’clock and a partial tear at 11 o’clock. According to PW3, these were old tears of more than 72 hours on the hymen and superficial abrasion at the posterior fourchette. PW3 concluded that the tear could have been caused by a blunt object that includes a finger or penis. [15] On 5.8.2019, the Investigating Officer, (PW5) went to the hotel where the incident took place and managed to obtain the hotel guest registration records for the date of the incident on 10.6.2019. The said record (exhibit P9) indicates the accused’s name, and identity card number. It also shows that the accused checked in the room at 4.56 pm and checked out at 5.10 pm on the said day. A receptionist from Hotel 57 (PW4) confirmed that he wrote the accused name and identity card on the registration record based on the identity card that was given to him. PW4 also recorded the check-in and check-out time. August 13, 2024 6 FINDINGS BY THE TRIAL JUDGE [16] The Learned Sessions Judge upon a maximum evaluation of the prosecution’s evidence at the end of the prosecution’s case found a prima facie case was made out and called upon the accused to enter his defence. [17] The accused gave evidence under oath and called 3 other witnesses. [18] At the end of the Defence case, the Learned Sessions Judge found the accused failed to raise a reasonable doubt on the prosecution’s case and the prosecution had proven the charge against the accused beyond reasonable doubt. LSJ then found the accused guilty, convicted him, and sentenced him to sixteen (16) years of imprisonment with six (6) whipping. PRINCIPLES ON APPELLATE INTERVENTION [19] In Herchun Singh & Ors v. Public Prosecutor [1969] 1 LNS 52, it was decided by the Federal Court that proper weight must be given to the views of the trial judge on the credibility of witnesses when hearing appeals: - “…This view of the trial Judge as to the credibility of the witness must be given proper weight and consideration. An appellate Court should be slow in disturbing such finding of fact arrived at by the Judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding...” August 13, 2024 7 Please also see the Federal Court’s decision in Amri Ibrahim & Anor v PP [2017] 1 CLJ 617. [20] Whereas in Lai Kim Hon & Ors v. Public Prosecutor [1980] 1 LNS 197 in respect of findings by a trial judge in a criminal trial, it was held by the Federal Court as follows: - “…The principle of law governing appeals in criminal cases on questions of fact is well established, in that the Appeal Court will not interfere unless the balance of evidence is grossly against the conviction especially upon a finding of a specific fact involving the evaluation of the evidence of a witness founded on the credibility of such witness. In the instant case the learned trial judge very carefully analysed all the available evidence before him and made specific findings of fact founded upon that which he believed to be the truth. He also drew certain inferences from facts specifically found. In this respect we may form our independent view but we should only do so where the fact upon which the inference was drawn was either unwarranted or manifestly against the weight of evidence. That was not the case here. In considering the appeal before us we gave very careful consideration to submissions made by Mr. Manjit Singh, counsel for the first appellant, and Encik Radzi, counsel for second, third and fourth appellants. In our judgment there was no merit in the argument and we were in full agreement with the findings of the learned trial judge. We therefore dismissed the appeal against conviction... [emphasis added]” [21] Whereas in Mohd Johi Said & Anor v. PP [2005] 1 CLJ 389, in respect of the approach to be adopted in a criminal appeal, the Court of Appeal held as follows: - “…Unlike civil appeals, where the appellant carries the burden of showing that the judge at first instance went wrong, in a criminal case August 13, 2024 8 the duty of the court is to consider whether the conviction is right. The correct approach is therefore not whether the decision is wrong but whether the conviction is safe. See, Mohammad Husain v. Emperor AIR [1945] Nag 441; Zahari bin Yeop Baai v. PP [1977] 1 LNS 162; [1980] 1 MLJ 160. That question, on the present facts, must receive a negative response... [emphasis added]” [22] Rape is defined under Section 375 of the Penal Code which reads: - “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions:

………

……..

……..

……..

…….

……….

with or without her consent, when she is under sixteen years of age.” [23] The accused is charged under Section 376 (2) of the Penal Code which reads: - “(2) Whoever commits rape on a woman under any of the following circumstances:

……

……

……..

without her consent, when she is under sixteen years of age; August 13, 2024 9 shall be punished with imprisonment for a term of not less than ten years and not more than thirty years and shall also be punished with whipping.” [24] The accused in the present Appeal has raised several grounds of appeal attacking the Learned Sessions Judge’s decision. I shall deal with each of the grounds below. The issue of corroboration [25] Learned counsel for the accused submits that the prosecution failed to prove a prima facie case. [26] According to the accused, the LSJ erred in relying on the photocopy of the hotel guest registration book (P9) and the old hymen tears stated in the victim’s medical report (P8) as corroborative evidence to prove the elements of the offence. [27] Learned counsel for the accused submitted that in sexual offences, it is unsafe to convict unless the evidence of the complainant is unusually convincing or there is some corroboration of the complainant’s story by relying on Spenser Wilkinson J’s decision in Public Prosecutor v Mardai [1950] 1 MLJ 33. [28] According to the accused, the photocopy of the guest registration book (P9) produced by the prosecution is secondary evidence under Section 63 Evidence Act, 1950 and is not primary evidence. As such, it is inadmissible unless the prosecution satisfies the requirements to produce secondary evidence as spelt out in Section 65 Evidence Act, 1950. The accused also further submits that the prosecution failed to satisfy this requirement. August 13, 2024 10 [29] In support of this argument, the accused relies on the decision of the High Court in Lee Kok Nam v. PP [1999] 5 CLJ 283 wherein it was held by Jeffrey Tan J (as he then was): - “A photostat, being a copy made from the original by a mechanical process within the meaning of s. 63(b) of the Evidence Act 1950, is undoubtedly secondary evidence, and will be available as evidence only under the combined provisions of ss. 65 and 63(b) of the same Act. It will not be available if an explanation is not given as to why the original is not produced. The explanation must of course satisfy one of the conditions of s. 65.” [30] The accused also submits that this is trite law as established by the Supreme Court in KPM Khidmat Sendirian Berhad v. Tey Kim Suie [1994] 3 CLJ 1 wherein the Supreme Court held secondary evidence of the contents of a document is inadmissible until the non-production of the original of the original is first accounted for, to bring it within one of the exceptions under that section. [31] The learned counsel for the accused also cited the decision in Popular Industries Ltd. v. The Eastern Garment Manufacturing Co. Sdn. Bhd. [1990] 2 CLJ Rep 635, it was held by Edgar Joseph Jr J (as he then was): - “It is a firmly established rule (to which there are exceptions) requiring that when documentary evidence is tendered, primary evidence of the document, that is to say, the production of the documents itself is essential. (See s. 65 Evidence Act). The exceptions to the rule are also well established and specifically provided for. (See s. 65(1) Evidence Act). Equally clearly the burden of proving the existence of any circumstances bringing the case within any of these exceptions lies upon the party seeking to adduce secondary August 13, 2024 11 evidence of the contents of the document. (See s. 104 illustration (b) Evidence Act).” [32] In the Court below when P9 was tendered through Hotel 57’s receptionist (PW4), no objection was taken by the defence and it was then duly marked as exhibit P9. [33] There were no attempts by the prosecution to produce the original register of the guest log book or a certified true copy of P9. Neither did they proffer any explanation as to why only a photocopy of the guest logbook was produced. [34] In this circumstance, I agree with the submission of the accused that P9 is inadmissible in evidence for failing to fulfil the requirements of Section 65 of the Evidence Act 1950. [35] Although a photocopy of the guest logbook was tendered in evidence and marked as P9, however inadmissible evidence cannot be admissible if the requirements as to the rules of evidence have not been satisfied. In Harjit Singh v. Regina [1963] CLJU 37, it was held by Winslow J: - “… it is clear that inadmissible evidence cannot be rendered admissible, contrary to the rules of evidence, merely because no objection is taken. It is the duty of the prosecution to prove its case strictly and it is well known that even admissions of facts like these will not suffice in a criminal trial.” [36] Be that as it may, in my opinion, this does not preclude the LSJ from accepting the hotel receptionist's (PW4’s) oral testimony in so far as the details of the person who checked in and checked out of room August 13, 2024 12 No. 4 at the material date and time in evaluating whether the elements of the offence were established. [37] PW4 testified that he was the one who recorded on the guest logbook the details of the customers on 10.6.2019 a Monday. PW4 then proceeded to give evidence of the accused name Syed Mohd Iskandar bin Syed Saggof, identity card number, handphone number and motorcar registration number as provided by the accused which he recorded. PW4 also further testified that he takes the identity card from the customer to write the details and also records the check-in and check-out time and the price. [38] PW4 also testified that he was not able to recognise the customer called Syed Mohd Iskandar bin Syed Saggof but remembers that the customer brought along his girlfriend. [39] The relevant part of PW4’s evidence is as follows: - (Rujuk rekod pelanggan bertarikh 10/6/2019). Rekod ini disediakan pada 10/6/2019 hari Isnin. Kolum pertama menunjukkan nombor bilik hotel di Hotel 57………………………… Di baris kesembilan, nama customer adalah Syed Mohd Iskandar bin Saggof Syed. Customer itu tempah bilik hotel nombor 4. Nombor IC, nombor handphone dan nombor pendaftaran kenderaan di beritahu oleh Syed Mohd Iskandar. Saya yang tulis maklumat itu. Saya akan ambil IC daripada customer untuk tulis maklumat. Customer check-in pada jam 4.56 pm. Keluar pada 5.10 pm. Harga hotel yang dia book RM

37.00. pelanggan itu yang bayar duit itu. Di ruangan harga, di atas harga 37, tulisan ‘10/6 10 pm’ adalah tulisan majikan. Dia tulis tarikh dan masa dia datang ambil bayaran. ……………. August 13, 2024 13 Saya tidak ingat muka customer Syed Mohd Iskandar bin Saggof Syed yang check-in hotel pada 10/6/2019. Saya ingat customer itu datang bawa teman wanitanya…………” [40] The defence also had the opportunity to cross-examine PW4 on the above facts. A perusal of the notes of evidence shows that the defence never challenged PW4 that the accused was never present at Hotel 57 at the material date and time when the incident of rape took place. [41] Instead of challenging PW4, the defence cross-examined PW4 to establish that the accused came to Hotel 57 with his girlfriend and did not force her to go up to the hotel by pulling her hands as follows: - “(Rujuk P9). Setuju pada 10/6/2019, ada customer bawa masuk teman wanita. Setuju saya tak cam customer itu. Setuju saya juga tak cam teman wanita customer itu. Setuju customer Syed Mohd Iskandar masuk pukul 4.56 pm dan keluar pukul 5.10 pm. Setuju pada 10/6/2019, tiada orang tarik tangan orang naik ke hotel. Tiada orang paksa orang pergi ke hotel.” [42] Hence in my judgement, the unchallenged oral testimony of PW4 with regards to the personal details of the accused being the person who was present in Hotel 57, checked in and checked out of Room No. 4 on the material date and time when the incident of rape took place corroborates the evidence of the victim. [43] Next, learned counsel for the accused submits that the old hymen tear cannot be corroborative evidence because it is neutral evidence based on the decision in Muhammad Kazwani Awang lwn. PP August 13, 2024 14 [2016] 1 LNS 962. In that case, the medical examination did not show any new tears. [44] In the present case, the incident of rape happened on 10.6.2019. The victim was examined by an obstetrician and gynaecologist (PW3) on 6.8.2019 who found old hymen tears at 3 o’clock and 7 o’clock and a partial tear at 11 o’clock. According to PW3, the tear and injury to the victim’s private part is consistent with the history given by the victim on the incident. [45] In a charge of rape where consent is irrelevant, medical evidence is sufficient to corroborate the evidence of the victim on the factum of rape. [46] Ratanlal & Dhirajlal, Law of Crimes 23rd edition at page 1410 states as follows: - “Where rape is denied by the accused the sort of corroboration one looks for is medical evidence showing injury to the private parts of the complainant, injury to other parts of her body which may have been occasioned in a struggle, seminal stains on her clothes or the clothes of the accused or on the places where the offence is alleged to have been committed; and in all cases importance is attached to the subsequent conduct of the complainant.” [47] In Syed Abu Tahir a/l Mohamed Esmail v Public Prosecutor [1988] 3 MLJ 485, it was held by Zakaria Yatim J (as he then was) as follows: - “In my opinion the evidence of the girl was sufficiently corroborated by the two doctors who examined the girl and the appellant respectively. In August 13, 2024 15 a case of this nature, medical evidence is sufficient to corroborate the evidence of the girl: see Ratanlal & Dhirajlal, The Law of Crimes, 22nd Ed, p 965.” [48] The decision in Syed Abu Tahir (supra) stating that medical evidence can be sufficient corroboration of a rape victim’s evidence was followed in PP v Mohammad Terang Amit [1999] 5 CLJ 156 and in Pendakwa Raya v Ismail Bin Abdullah [1997] CLJU 341. [49] As for the non-presence of a fresh hymen tear on the victim’s genitalia, in my opinion, does not disprove that penetration had occurred. Since the victim was examined almost two (2) months after the incident, the presence of old tears is consistent with her version of the occurrence of rape. [50] With regard to an old rupture of the hymen, Thomson LP said in Din v. PP [1964] MLJ 300 at p. 301: - “The hymen was ruptured but this was not recent. In short his evidence did not support in any way that the woman had had sexual intercourse within the previous twelve hours but on the other hand it did not negative such a possibility.” [51] Whereas in PP v. Muhammad Nor Azmil Khairuddin [2015] 1 CLJ 276, the High Court accepted the evidence of the obstetrician and gynaecologist that when the presence of old tears, the possibility of finding fresh tears was remote and the probability was slim. This was because the hymen was fairly elastic and it was difficult to detect fresh tears when there were old tears. Please also see Anthonyius Bernard v. PP [2018] CLJU 1346. August 13, 2024 16 [52] It is also important to note that whilst the accused raises this issue now, however, PW3 was never challenged with regards to the significance of the old tears apart from asking her how it could have been caused. [53] The decision in PP lwn. Muhammad Syamir Kasmani [2014] 8 CLJ 1071 relied on by the accused can be distinguished because the medical examination on the victim was carried out before the expiry of seventy-two (72) hours of the incident and it showed there were no fresh tears. [54] Hence, in my judgement, the LSJ did not err in considering the old tears as corroborating the evidence of the victim on the factum of rape. Age of the victim [55] Next, the accused submits that the prosecution failed to prove an important element of the offence which is the age of the victim below 16 years old at the time of the incident by tendering a certified true copy of the victim’s identity card or birth certificate. [56] This issue was never raised by the accused in the Court below but only now during the appeal. However, in my view, the defence is not precluded from raising this issue because, in a criminal trial, the burden rests on the prosecution throughout the case to prove the offence against the accused beyond reasonable doubt. [57] In support of their argument, the defence relied on the High Court’s decision in Mohd Faiz Ismail v. PP [2023] 4 CLJ 949, wherein the August 13, 2024 17 Court held that the failure by the prosecution to tender the victim’s identity card or birth certificate was fatal. [58] The defence also relied on the Court of Appeal’s decision in Mohd Salleh MK Mohd Yusof v. PP [2005] 2 CLJ 655 to support their argument that the birth date of the victim must be proved by the production of documentary exhibits such as the actual birth certificate or identity card. [59] Whereas the learned DPP argues that there is sufficient evidence before for the LSJ to find that the victim was below 16 years old at the time of the incident. [60] Firstly, the Court had verified the identity card of the victim at the time she took oath to testify. This can be seen from the notes of evidence. It is common knowledge that the new format of the identity card contains the date of birth of the holder. As such from the registration number of the victim’s identity card. the date of birth of the victim can be ascertained and hence her age can be determined. [61] Secondly, the victim testified that she was in form four at the time of the incident. Therefore, her age must have been around 15 years. [62] Thirdly, the victim also stated in her police report lodged on 4.8.2019 that she is 15 years and 8 months old. [63] Therefore, according to the learned DPP, it can be deduced from this admitted evidence that the victim was below 16 years old at the time of the incident. August 13, 2024 18 [64] In respect of this issue, in Thee Lian Iuan lwn. PP [2016] 10 CLJ 674 it was held by Hassan Abdul Ghani JC (as he then was) that it is sufficient for the age of the victim to be determined from the identity card registration number of the victim when she takes oath to testify. Please also see PP lwn. Mohd Sukri Mohd Hasan [2022] CLJU

[65] Furthermore, judicial notice can be taken by this Court that the new format of the victim’s identity card will reveal her date of birth. Therefore, there will be no ambiguity as to determining the age of the victim. [66] The views adopted by the Court in Thee Lian Iuan (supra) where the victim’s birth certificate or identity card is not produced in evidence, the age of the victim can be determined from the identity card when the victim takes oath to testify was not followed by Celestina Stuel Galid J in Mohd Faiz Ismail v PP [2023] 4 CLJ 949. Her Ladyship was of the view that supporting evidence of the victim’s birth date must be obtained from National Registration Department. [67] However, as stated above, I am inclined to follow the views adopted by the Court in Thee Lian Iuan (supra) and am satisfied that the age of the victim has been established to be below 16 years old at the time of the incident. [68] The decision in Mohd Salleh MK Mohd Yusof (supra) relied on by the accused can be distinguished on the facts. In that case, the issue was whether photocopies of the birth certificate and identity August 13, 2024 19 card kept in the Court records after the originals were returned were sufficient to prove the date of birth of the victims. [69] In the foregoing, I find no merits in this issue raised by the accused. Credibility of the victim [70] Next, the accused attacked the credibility of the victim and submits that the victim’s testimony was not credible. [71] Learned counsel for the accused submits that this is because the victim only lodged a report almost two months after the incident and it was Ejal who informed the victim’s father of the rape. In support of this submission, the defence relied on the decision in Mohd Nuraswat Ahmad lwn. PP [2009] CLJU 14 wherein the Court held that the explanation of the victim in respect of the delay in lodging the report i.e. threat by the accused to let out the secret relationship between them, cannot be accepted as true and reasonable. [72] The accused also referred to the decision in Hairani Sulong v. PP [1993] 1 MLRH 644 wherein it was held that the reasons for the delay in lodging the report must be considered in the light of other relevant and admissible evidence available before coming to any conclusion. In addition, the accused also referred to Ratanlal & Dhirajlal’s Law of Crimes 27th Ed. Vol. 2 (page 2353 & 2354) s follows: - “It is stated that mere delay in lodging the F.I.R. cannot be used as a ritualistic formula for doubting and discarding the prosecution’s case. Delay however should put the court on its guard to examine whether an explanation has been offered for the delay, and if offered, whether it is August 13, 2024 20 satisfactory. The delay could be taken as a factor in determining credibility, if the explanation offered for the delay was unsatisfactory.” [73] The learned DPP submits that the victim’s explanation that the reason she only lodged a report about two months later was because she feared her parents is reasonable. [74] On this issue, the LSJ found as follows: - “apabila mangsa berasa takut untuk memberitahu ibubapa beliau tentang kejadian, ia tidak bermakna mangsa akan hidup dalam ketakutan sepanjang masa. Adalah masuk akal untuk mangsa boleh menceritakan tentang kejadian kepada kawan-kawan beliau tetapi tidak kepada ibubapa beliau kerana berbanding ibubapa beliau, kawan-kawan mangsa tidak boleh memarahi mangsa. Alasan mangsa bahawa beliau lambat membuat laporan polis kerana beliau takut hendak memberitahu ibubapa beliau tentang kejadian adalah munasabah;” [75] In my judgment, the LSJ as the trier of fact had considered and accepted the victim’s explanation for the delay in lodging the report as reasonable. I see no reason to interfere with his finding. [76] Next, the accused attacks the victim’s credibility in respect of discrepancies in her testimony. [77] According to learned counsel for the accused, there were discrepancies in the victim’s testimony about whether she was forced by the accused to follow him, the time of the incident, the length of time she had known the victim before the incident and whether it was Ejal or her uncle told her father about the incident. August 13, 2024 21 [78] In my judgement, the LSJ had the audio-visual advantage of listening to the victim’s evidence and observing her demeanour. As such, he is the best person to judge her credibility. [79] The LSJ in paragraph 11 of his grounds of judgement had considered these discrepancies raised by the accused and in paragraph 12, after referring to the decision Pie Bin Chin v Public Prosecutor [1985] 1 MLJ 234 found these discrepancies are not material to render the victim’s entire evidence incredible. [80] In the foregoing, I find no merit in this issue. Failure to consider the involvement of Ejal in framing up the accused. [81] Lastly, the accused submits that the LSJ failed to consider the defence concerning the involvement of Ejal in framing up the accused in respect of the allegation of rape by the victim due to business rivalry between both of them. [82] According to the accused, Ejal was not called by the prosecution as a witness although the narrative of the complaint started with Ejal. [83] The accused further submits that neither was Ejal offered to the defence. Therefore, the adverse inference presumption under Section 114(g) Evidence Act, 1950 ought to be invoked against the prosecution. [84] According to the prosecution, the victim in her evidence denied any revenge by Ejal towards the accused concerning business rivalry. August 13, 2024 22 [85] The learned DPP also submitted that there is no evidence from the Investigating Officer (PW5) that the complaint concerning the victim being raped by the accused originated from Ejal. When PW5 was cross-examined on this point, she denied that the victim, her friend and Ejal colluded to frame up the accused because the accused decided to break up with the victim. Lastly, PW5 also testified that the victim did not narrate the incident to Ejal but Ejal got to know from the victim’s friend, Adila. [86] The learned DPP submits that the involvement of Ejal was duly considered by the LSJ and therefore there is no need to call Ejal or to offer him to the defence. Furthermore, Ejal was not at the place of the incident and therefore not relevant in proving the elements of the offence. [87] The LSJ came to the conclusion that the role of Ejal was only in respect of telling the victim to lodge a report against the accused on the incident. [88] In my view, the LSJ had duly considered the issue concerning the accused being framed by Ejal in respect of the allegation of rape by the victim due to business rivalry between them in paragraphs 17, 18 and 19 of his grounds of judgement and concluded in paragraph 22 that whatsoever Ejal’s involvement is irrelevant if the incident of rape did take place. [89] Lastly, on this point, I wish to add that if it was true as contended by the accused that due to business rivalry, Ejal wanted to frame up the accused, this certainly is a serious matter that warrants the August 13, 2024 23 accused to have lodged a police report to enable an investigation to be carried out. However, no such report was made by the accused. [90] As for the prosecution’s failure to call Ejal to testify in respect of the prosecution’s narrative, in my judgement, the prosecution is not bound to call Ejal if they are of the view his evidence is unnecessary. Please see Public Prosecutor v Chee Kon Fatt [1991] 3 CLJ (Rep)

[91] As for the failure of the prosecution to offer Ejal as a witness to be called by the defence, I am guided by the decision in Teh Lee Tong v Rex [1951] CLJU 96 wherein it was summarised by Spenser Wilkinson J as follows: - “(1) All the witnesses from whom statements have been taken should be brought to the Court by the prosecution, except those whose evidence will clearly and obviously throw no light on the case; any witness not so brought to Court must be made available to the accused, should he desire to call him.

Having brought the witnesses to Court the prosecuting officer is not bound to call or to offer for cross-examination a witness whose evidence is in his opinion unnecessary or is obviously hostile.

The existence of witnesses brought to Court but not called or offered for cross-examination under (2) above must be brought to the attention of the Court so that they are available to be called by the defence, or by the Court should the Court consider this necessary.” [92] The notes of evidence in the Court below did not indicate that Ejal was brought or subpoenaed to the Court by the prosecution. If the Prosecution was of the view, that Ejal’s evidence would not throw August 13, 2024 24 any light on the case, they are not bound to bring him to Court to be called as a witness. [93] Counsel for the accused in cross-examining the investigating officer (PW5) had established that the statement was recorded from Ejal. However, counsel did not go further to examine PW5 whether Ejal was brought to Court as a witness. [94] In my judgement, based on the authority in Teh Lee Tong (supra), upon knowing that the statement was recorded from Ejal and Ejal was not brought to Court to be called as a witness, it was incumbent on the defence to request from the Court that the prosecution makes Ejal available to them. [95] In this circumstance, I find no merit in this issue. SENTENCE [96] The accused was sentenced to 16 years of imprisonment with six 6 whippings and two 2 years of police supervision upon completion of his imprisonment. [97] Although the accused had filed his Notice of Appeal to appeal against the sentence, however, no grounds of appeal were pleaded in respect of the sentence imposed by the LSJ in his Petition of Appeal. [98] In any event, for completeness, I have considered the submissions put forward by the accused that the sentence imposed by LSJ is August 13, 2024 25 manifestly excessive. In support of this, learned counsel for the accused relied on 3 authorities to reduce the sentence. [99] Firstly, the case of Vijeyan Kunjoo v. Public Prosecutor [2008] 6 MLJ 737 involves charges of drug possession and self-administration under the Dangerous Drugs Act, of 1952. In my view, this case is inapplicable to our present case which concerns a sexual offence committed against a child. [100] Secondly, in the case of Faizal Anuar Mat Isa v. PP [2023] 1 LNS 2548 the accused was charged under section 376(2)(b), found guilty and upon conviction was sentenced to 12 years of imprisonment and given 4 whippings. [101] Lastly, in the case of Muhammad Mithali Saidin lwn. PP [2019] 1 LNS 224 the accused was charged under section 376(2)(k), found guilty and upon conviction was sentenced to 14 years of imprisonment and given 6 whippings. [102] In my judgement, the sentenced to be imposed in each case will vary according to the facts so long the principles of sentencing are adhered to by the trial judge. [103] In imposing the sentence, I find the LSJ had taken into account the fact that the accused had deceived the victim who was only 15 years and 8 months old and whom he only got to know two weeks before the incident to have sexual intercourse with the victim. The LSJ found the accused deceived the victim by asking her to follow him by initially saying to accompany him to repair his car and thereafter August 13, 2024 26 when arrived at the hotel, deceived her again by saying that he just wanted to take a bath. [104] The LSJ therefore found the accused to be a predator and therefore society must be protected from persons like the accused. [105] In this circumstance, the LSJ was of the opinion that a long term of imprisonment is appropriate in achieving this objective to protect society from people like the accused and also would give him space to repent and be rehabilitated. [106] Lastly, the LSJ was also of the view that a deterrent sentence would send the message to others not to commit similar crimes. [107] The maximum sentence of imprisonment for this offence is 30 years and the minimum are 10 years. There is no minimum or maximum number of whippings. The LSJ had imposed 16 years and 6 whippings on the accused. [108] In meeting out the sentence, the LSJ considered the trend of sentencing for an offence under section 376(2) of the Penal Code by referring to the following cases: -

Mahendren a/l Muniandy lwn Pendakwa Raya [2018] MLJU 1686 (18 years imprisonment and 5 whippings);

(ii) Sundra Moorthy a/l Sendarayan lwn Pendakwa Raya [2019] MLJU 253 (17 years imprisonment and 8 whippings).

(iii) Cumaidi Bin Ghani lwn Pendakwa Raya [2018] MLJU 873 (16 years imprisonment and 5 whippings). August 13, 2024 27 [109] In my judgement, the LSJ had taken into account the public interest, the interest of the accused and the trend of sentencing in similar cases of sexual offences before passing a sentence. [110] The accused is not able to convince this Court as to how the LSJ had erred in imposing the sentence. As such, I see no reason to disturb the sentence imposed by the LSJ. DECISION [111] In the foregoing, the Court finds the conviction of the accused by the LSJ is safe and an appropriate sentence was imposed. [112] In the foregoing, the appeal by the accused against the decision of the learned Sessions Judge on 8.8.2023 is hereby dismissed. The conviction and sentences are hereby affirmed. Dated this 13th August 2024 at Muar in the State of Johore. t.t. SURIA KUMAR DJ PAUL Judicial Commissioner High Court of Malaya Muar Johore Darul Ta’zim Counsels: For the Appellant : Iskandar Shah Bin Ibrahim August 13, 2024 28 For the Respondent : Putera Amirool Faez Bin Suhasi Solicitors: For the Appellant Messrs Iskandar Shah & Co Advocates & Solicitors Suite 11.10, Tingkat 11 Menara TJB No. 9 Jalan Syed Mohd Mufti 80000 Johor Bahru Johor [Ref. No. : ISCO/S.376/ISKANDAR SAGGOF/23] For the Respondent Timbalan Pendakwa Raya Pejabat Timbalan Pendakwa Raya Suite 4. Aras 8, Wisma Sing Long Jalan Zabedah 83000 Batu Pahat Johor [Ref. No. : ] Hearing Date : 20th June 2024 Decision Date : 13th August 2024