TAY KIANG HEONG v Pendakwa Raya (D-09(H)-504-10/2018)

(a) in respect of Tay’s appeal in Appeal No: D-09(H)-504-10/2018, we dismissed the appeal in whole and affirmed the conviction; and

(b) in respect of the Public Prosecutor’s cross-appeal in Appeal No: D- 09(H)-505-10/2018, we allowed the appeal in part by enhancing the sentence of imprisonment from 3 months to 1 year and affirming the sentence of RM8000 fine in default 8 months imprisonment. S/N 803/a4r5OkSEJhFbruiKcg These are the full grounds for our decision. AT THE SESSIONS COURT

(a) Prosecution’s Case [7] The prosecution adduced the following evidence as part of its case:

(i) On 9/7/2015, the complainant, Ms Yeap, saw a Chinese man looking into her shop Kedai Kek Cintaku, KB Mall, Kota Bharu from outside the door and going back and forth in front of the store 3 to 4 times.

(v) On 13/7/2015, out of curiosity Ms Yeap called the phone number that Tay gave and the recipient of the call, one Ah Kee, informed that he had never asked Tay to do what he did and that he did not know Tay and Ms Yeap. S/N 803/a4r5OkSEJhFbruiKcg

(x) After that SP5 asked Ms Yeap about what had happened, but Ms Yeap was at first silent and only after a while did she tell SP5 that Tay had grabbed her buttocks and breast.

(b) Findings of the Sessions Court at Close of Prosecution Case [8] Section 354 of the Penal Code reads: Assault or use of criminal force to a person with intent to outrage modesty Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to ten years or with fine or with whipping or with any two of such punishments. [9] The learned Sessions Judge held that in order to establish a prima facie case for a charge under section 354 Penal Code, the prosecution would have to establish the following elements of the offence:

(i) there must have been assault or use of criminal force on a person;

(a) with intention to outrage modesty; or

(b) with knowledge that the person's modesty was likely to be outraged. [10] Therefore, in this case, it must be proven that: S/N 803/a4r5OkSEJhFbruiKcg

(i) Tay assaulted or used criminal force on Ms Yeap, the victim; and

(a) He went to Ms Yeap’s shop with some cookies and a greeting card with a message from Ah Kee. As soon as he arrived at the shop, he spoke to Nur Fazlin (SP5) and asked for Ms Yeap. After having ascertained that Ms Yeap was in the kitchen, he asked Nur Fazlin permission and went to the back where he found the complainant in the shop kitchen. Tay then handed the cookies and greeting card to Ms Yeap with both hands and Ms Tay had received them with both her hands calmly and with a smile. According to Tay, when he reached out his hands had touched Ms Yeap’s palm. Tay stated that Ms Yeap’s allegations of shouting, deliberately holding her hand, squeezing her chest, squeezing her buttocks are false, purely fabricated by the complainant.

(b) After that, he said he walked out normally from the kitchen. Nur Fazlin entered and saw him hand over the items to the complainant. He said that the claim by SP5 that she heard the complainant scream and saw him leaving in a hurry is false, and a mere fabrication. S/N 803/a4r5OkSEJhFbruiKcg

(c) He further denied ever threatening to burn down the complainant's shop.

(d) He said the CCTV in the shop was working when he was in the shop on 15.7.2015.

(e) As for the incident on 11.8.2015, he stated that he had run into the complainant's father and had asked for compensation for having been punched by the complainant's father. [22] Tay also called SD2, Insp. Zamzuri, to corroborate his version that that the complainant's father had punched him. He further stated that the allegation that he molested the complainant are false and defamatory and that Nur Fazlin had conspired with the complainant to falsely implicate him. Findings at end of defence case [23] After examining all the available evidence, the learned trial judge found that the defence was merely an empty denial that is not supported by any other witnesses or facts. The Sessions Court found the defence version to be incredible as it was raised for the first time during the defence case. This version of the defence was never put or suggested to the prosecution’s witnesses during the prosecution’s case and was merely an afterthought. S/N 803/a4r5OkSEJhFbruiKcg [24] Hence, in the overall, the learned Sessions Judge concluded that Tay had failed to cast any reasonable doubt on the prosecution's case. Therefore, he was convicted as charged. Sentence [25] The following mitigating factors were submitted by learned counsel for Tay:

(a) Tay, aged 48, used to practice as an advocate and solicitor from 1994 till 2014, and was at the material time working as a legal advisor. He was married with 2 children, and the sole breadwinner of the family. When in legal practice, he was once the Chairman of the Kelantan State Bar Disciplinary Panel. He was also in one of the sub-committees of the Kelantan Golf and Country Club. He was also involved in several NGOs and charitable bodies. The defence asked for a sentence of fine only.

(b) The prosecution sought a custodial deterrent sentence based on the following aggravating factors:

(i) it is a serious offence;

(v) such incidents are becoming more prevalent;

(v) Tay as a lawyer should know that outraging modesty is a serious offence. [26] Based on the facts and circumstances of the case, the learned trial judge was of the view that punishment in the form of a fine was not appropriate. The learned Sessions Judge was of the view that a custodial sentence was warranted as deterrence to other potential offenders. Having considered the mitigating and aggravating factors, the Sessions Judge sentenced Tay to 3 years imprisonment from the date of sentencing, i.e. 22.2.2017. At the High Court [27] Tay filed an appeal to the High Court against the conviction and sentence, whilst the Public Prosecutor filed a cross-appeal against the sentence. [28] The learned High Court Judge agreed with the Sessions Court’s findings that the complainant was a credible witness. The complainant gave reliable evidence as to what had happened before and after the S/N 803/a4r5OkSEJhFbruiKcg incident on 15.7.2015. The complainant was convincing in her testimony that Tay was the one who molested her. The learned High Court Judge concurred with the Sessions Court’s finding on the complainant’s credibility as seen through her demeanour, as well as the quality of her evidence which was strong, probable, rational and consistent. [29] The High Court found that the elements of the charge under section 254 of the Penal Code had been successfully proven by the complainant’s evidence alone. However, as a matter of prudence, the learned High Court Judge agreed with the Sessions Court that there was strong corroborative evidence in the form of testimony from SP5. The High Court found that SP5's testimony was consistent with the complainant's testimony and supported each other. SP5's testimony also never wavered during cross-examination. In this regard, the High Court agreed with the Sessions Court that SP5 was a credible witness because there was no reason for her to fabricate a story and there was no reason for the court not to believe her. [30] The next supporting evidence are the Police Reports P4 and P5 lodged by the complainant. The High Court found the complainant's testimony to be consistent with her Police Reports. As for the discrepancy in the date mentioned in P4, the learned High Court Judge referred to the case of PP v Datuk Harun Idris [1977] 1 MLJ 180 where the Federal Court ruled that "any contradictions and inconsistencies in the police report can S/N 803/a4r5OkSEJhFbruiKcg be corrected by this witness during his examination in chief.." This was done Ms Yeap during her testimony. [31] The High Court also found that the complainant's actions in making the police reports P4 and P5 were relevant under section 8 of the Evidence Act 1950 because it showed the complainant's conduct after the incident. And this goes towards establishing the fact that the incident did take place and further showed the complainant's state of mind. [32] Tay’s conduct in coming several times to the shop prior to the incident to make observation and preparation was also relevant and Tay had taken advantage of the complainant who was hiding in a small store room and took the opportunity to hug and grab Ms Yeap’s breast and buttock. The conduct of the complainant's father who had punched Tay is also relevant because the complainant's father would not have done so if the incident had not happened. SP6 also confirmed that Tay met with the complainant's father to resolve this matter between them but the complainant's father did not agree. [33] Overall, the High Court agreed with the Sessions Court’s findings that the prosecution had succeeded in proving a prima facie case. And that the defence case was merely an empty denial and not supported by supporting evidence. The High Court found that Tay's testimony was contradictory to the complainant's testimony. And unlike Tay’s testimony, S/N 803/a4r5OkSEJhFbruiKcg the complainant's evidence was corroborated by an abundance of supporting evidence. The issue of the date of the offence in the charge [34] The defence contended that the Sessions Court had wrongly convicted Tay on a charge which states the date of offence as 13.7.2015, whilst the evidence led by the prosecution was that the offence was committed on 15.7.2015. The learned High Court judge found from the notes of proceedings that in the course of the trial, the learned Deputy Public Prosecutor had applied to amend the date of the offence stated in the charge from 13.7.2015 to 15.7.2015. The amended charge was then read and explained to Tay, and he pleaded not guilty. And after that, the learned Sessions Judge continued the trial by calling SP5. This was indicative of the fact that the Sessions Court had allowed the amendment to the charge. Hence, the learned High Court Judge found this issue to be a non-starter. The issue of incomplete Sessions Court CRT recording [35] Tay’s solicitors had requested to be provided with the CRT recording of proceedings in the Sessions Court. However, due to technical problems, only the CRT recording of the defence case was available. The S/N 803/a4r5OkSEJhFbruiKcg Registrar of the Sessions Court had called the IT contractor to retrieve the full CRT recording but also to no avail. [36] Learned counsel for Tay submitted that the unavailability of the full CRT recording means that the High Court would not be able to see for itself the demeanour of the prosecution witnesses as well as the alleged interference of the learned Sessions Judge when Tay’s counsel was cross examining the prosecution witnesses. [37] The High Court found that the issue of the absence of the full CRT recording had no merit. The CRT recording system was introduced in the courts in phases from 1.5.2009 onwards, but it did not replace the use of conventional evidence recording as stipulated in sections 266 and 267 of the Criminal Procedure Code. And in this case the learned Sessions Judge had taken comprehensive long hand notes of proceedings in accordance to sections 266 and 267 of the Criminal Procedure Code. Further, the case for the prosecution did not hinge solely on the demeanour of witnesses but on the strength of the overall evidence. Therefore, the High Court concluded that the absence of the complete CRT recording does not render a conviction invalid or void. Issue – Absence of CCTV recording S/N 803/a4r5OkSEJhFbruiKcg [38] Just as in the Sessions Court, learned counsel raised the issue of the non-existent CCTV recording at the shop where the incident took place. The High Court rejected this argument as it was devoid of any merit. Issue – Allegation that Sessions Judge interfered in the cross-examination of the complainant [39] After examining the notes of proceedings, the learned High Court Judge rejected this argument because the Sessions Court Judge had only disallowed questions on issues where uncontroverted evidence was already there. This did not cause any unfairness to the accused. High Court’s conclusion [40] Hence, the High Court found that the conviction by the Sessions Court was safe and accordingly dismissed the appeal against conviction. Appeal against sentence [41] The High Court allowed Tay’s appeal against sentence based on the following:

(a) Tay was a first offender;

(b) he was under stress because his wife was suffering from cancer; S/N 803/a4r5OkSEJhFbruiKcg

(c) imprisonment of 3 years imposed by the Sessions Court will bring a crushing effect to Tay. Tay who has been remanded for 7 days had repented before being released on bail;

(d) Tay was the family bread winner who had 3 dependents, namely 2 small children and a wife who was a housewife;

(e) The long prison sentence imposed by the Sessions Court will have an economic impact on the family and will separate Tay from his children.

(f) His wife also needs to get intensive treatment and Tay was the primary caregiver;

(g) The wife's cancer had advanced, necessitating frequent visits to the hospital and he needs to take his wife to the hospital more often. If Tay is in prison for a long time, no one will take his wife to the hospital. [42] The High Court was of the view that the Sessions Court had failed to give due consideration to these facts, thus justifying appellate intervention to reduce the sentence. The appeal before this Court [43] The issues raised before this Court were similar to those raised at the High Court. At the outset it is worth noting that both the Sessions Court and High Court made concurrent findings of fact, and it is well S/N 803/a4r5OkSEJhFbruiKcg established principle that in such circumstance an appellate court should be slow to disturb these findings unless it is shown that the evidence does not support such findings. This was made clear by the Federal Court in Public Prosecutor v Munusamy [1979] 2 MLJ 286; [1980] 1 LNS 63 in the following words: Where there have been concurrent findings of fact in the lower courts it should not be made the practice in the appeal court to review these concurrent findings of fact unless it is shown that there was no evidence to support the inferences drawn in the lower courts. [44] This principle was reiterated by the Federal Court in Puganeswaran a/l Ganesan & Ors v Public Prosecutor and other appeals [2020] 12 MLJ 165, where the Court noted that where crucially the concurrent findings involve the question of the credibility of the witnesses, the appellate court should not interfere unless it is convinced that such findings were patently wrong. In this regard the Federal Court had referred to the Privy Council’s decision in Antonio Dias Caldeira v Frederick Augustus Gray [1936] 1 MLJ 110; [1934] 1 LNS 5 and held as follows: ... the functions of an appellate court, when dealing with a question of fact, and a question of fact in which questions of credibility are involved, are limited in their character and scope, and that in an appeal from the decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, an appellate court must in order to reverse, not merely entertain doubts whether the decision below is right but be convinced that it is wrong. See also Chow Yee Wah & Anor v Choo Ah Pat [1978] 2 MLJ 41b (PC); Samar binte Mansor v Mustafa Kamarul Arifin [1974] 2 MLJ 71. S/N 803/a4r5OkSEJhFbruiKcg [45] Further, in Samar Binte Mansor v Mustafa Kamarul Arifin [1974] 2 MLJ 71, Raja Azlan Shah FCJ (as HRH then was) in answering the question whether an appellate court should substitute its own views of the facts for that of the trial judge had this to say: For an appellant to succeed in an appeal against a finding of fact made by a single judge, he must convince the appellate court that the learned judge was wrong in his conclusion. That the appeal is by way of rehearing does not alter the situation. A rehearing is not however a retrial of the issues. The question is not whether an appellate court can substitute its views of the facts which of course it is empowered to do so, but whether it should do so. However such an appellate court may be in an equal position with the trial judge as to the drawing of inferences, it ought not to reverse the finding of fact unless it is convinced that it is wrong. It is not whether the inferences are right but whether an appellate court is convinced that they are wrong. If that finding is a view reasonably open on the evidence, it is not enough to warrant its reversal just because an appellate court would have come to a different view. Merely differing views do not establish that either view is wrong, but in balancing these two views an appellate court should give due weight to the nature of the facts as found by the trial judge. [46] Now, counsel for Tay had submitted at length that the concurrent findings of the trial judge and the High Court judge that the prosecution had established a prima facie case were wrong. The concurrent findings on the credibility of Ms Yeap and SP5 were also challenged. It was submitted that both these witnesses were not credible. However, we have noted that it has not been shown that the concurrent findings of fact by the courts below are unsupported by the evidence, direct or S/N 803/a4r5OkSEJhFbruiKcg circumstantial. Of crucial importance to note in this regard is that the concurrent findings involve the question of the credibility of the witnesses, namely SP1 and SP5, and we do not find any cogent reason to disagree with the trial judge’s finding on the credibility of these two important witnesses. Their evidence was largely consistent and supported each other. [47] The issue of the date in the charge was raised once again before this Court. We did not find any merit in this issue. The charge originally stated that the offence was committed on 13.7.2017 and this was subsequently amended to 15.7.2017 and the amended charge was then read and explained to Tay, and he pleaded not guilty, following which the trial continued. Ms Yeap explained why she had stated the wrong date in her first police report and that explanation was accepted by the Sessions Court. The High Court judge also found the explanation to be plausible and reasonable. In any event Tay is not prejudiced by this change in date, he did not deny being in Ms Yeap’s shop on 15.7.2017. He also did not deny going into the kitchen side of the shop and into the store where Ms Yeap was hiding. His defence was that though he was there, he did not indecently assault Ms Yeap by caressing her breast and touching her buttocks, nor that he used criminal force on her. S/N 803/a4r5OkSEJhFbruiKcg [48] Learned counsel for Tay also raised the issue of the non-production of the CCTV recording. We did not find any error in the decision of the High Court in rejecting this argument. The evidence of the investigating officer (SP6) was that the CCTV recorder was not functioning and as such there was no CCTV recording available to be produced in court. In any event, the production of the CCTV recording of the goings on in the shop front, even if it was available, was not going to help Tay as the offence was said to have been committed in the store at the kitchen, and not in front of any CCTV camera. [49] Now, as for the incomplete CRT recording, learned counsel for Tay submitted at length. This issue was also considered in depth by the learned High Court judge. The High Court judge was satisfied that there was a genuine technical fault resulting in the system not capturing and storing the audio-video data of the proceedings during the prosecution stage. Nevertheless, the High Court found the manual notes of proceedings recorded in long hand by the learned Sessions Court judge to be sufficient and in conformity with the requirements of the Criminal Procedure Code. In the circumstance, we do not find any miscarriage of justice. We agree with the reasons given by the learned High Court judge that the failure of the CRT system to record the entire trial proceeding did not render the trial a nullity in order for a retrial to be ordered. S/N 803/a4r5OkSEJhFbruiKcg [50] We are in the overall satisfied that the High Court was right in affirming the decision of the Sessions Court to find the appellant, Tay, guilty of the offence charged. There was sufficient judicial appreciation of the evidence by the learned trial judge and she had not misdirected herself either on the facts or on the law. Hence, we found that the conviction was safe and accordingly dismissed the appeal against conviction as in Appeal No. 504. [51] As for the cross-appeal on sentence by the Public Prosecutor, we were of the considered view that the sentence imposed by the High Court was manifestly low. Considering the seriousness of the offence and the impact on the victim, Ms Yeap, and further taking into consideration the sentencing trend for an offence under section 354 of the Penal Code, a sentence of 3 months imprisonment was manifestly inadequate. The learned Deputy Public Prosecutor argued for the sentence of 3 years imprisonment imposed by the Sessions Court be reinstated. However, we did not agree with that argument and were of the view that a more appropriate sentence would be imprisonment for a year whilst maintaining the fine of RM8,000 with 8 months imprisonment in default of payment. Hence, we allowed the Public Prosecutor’s cross-appeal and set aside the sentence of imprisonment of 3 months imposed by the High Court and S/N 803/a4r5OkSEJhFbruiKcg substituted it with imprisonment of 1 year and affirmed the fine of RM8,000 in default 8 months imprisonment. Orders accordingly. Dated this 30th day of April 2024. - sgd - (VAZEER ALAM BIN MYDIN MEERA) Judge Federal Court of Malaysia Counsel For the Appellant: Lua Kok Hiong Cheah Poh Loon Ummi Salhah binti Mohamad [Messrs Lua & Mansor] For the Respondent: Dhiya Syazwani Izyan binti Mohd Akhir Deputy Public Prosecutor (Attorney General’s Chambers) S/N 803/a4r5OkSEJhFbruiKcg