TEO YI HONG v Pendakwa Raya (JB-42JSKS-5-10/2024)

This is an appeal by the appellant against the conviction and sentence by the Sessions Court Judge. There is also a cross-appeal by the prosecution against the sentence.

The appellant was charged with the following offence in the Sessions Court: - “Bahawa kamu pada 8/7/2021 jam lebih kurang 8.30 pagi bertempat di dalam sebuah kereta di belakang kedai kopitiam 333, Taman Setia Jaya, dalam Daerah Batu Pahat, dalam Negeri Johor telah melakukan amang seksual fizikal ke atas seorang kanak-kanak perempuan bernama XXXXXX XXXXXX (KPT: XXXXXX-XX-XXXX), yang berumur 12 tahun 3 bulan dengan cara mencium pipi dan mulut serta meraba payu dara kanak-kanak tersebut. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah S/N R7YL97m3hk6tg1kIoLcz7A seksyen 14(a) Akta Kesalahan-Kesalahan Seksual Terhadap

The prosecution adduced four witnesses, along with some documentary evidence, to support their case. The witnesses are: - i) SP1 - Complainant (victim’s mother) ii) SP2 - Victim iii) SP3 - Investigation Officer iv)

The Learned Sessions Court Judge found that, based on the credible witness, the prosecution had succeeded in proving a prima facie case against the appellant for the above charge and ordered the appellant to enter his defence. At the end of the defence case, the Learned Sessions Court Judge found that the defence was a bare denial and not supported by any evidence, and did not raise any reasonable doubt on the prosecution’s case. The appellant was convicted and sentenced to 4 years imprisonment (from date of conviction - 21.10.2024) with 2 strokes of whipping. The appellant was also ordered to undergo police supervision for one year after the imprisonment under section 26 of the Sexual Offences Against Children Act 2017. The application for a stay was allowed.

The appellant had listed the following grounds of appeal in the Petition of Appeal: - “(a) Tuan Hakim yang bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila mendapati pihak pendakwaan telah membuktikan satu kes prima facie terhadap Perayu sedangkan keterangan-keterangan yang ada membuktikan sebaliknya;

Tuan Hakim yang bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila mendapati bahawa Perayu gagal telah menimbulkan sebarang kerayuan yang munasabah terhadap kes pihak Pendakwaan di dalam pembelaanya;

Tuan Hakim yang bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila mendapati keterangan pembelaan Perayu hanyalah bersifat penafian (bare denial) dan tidak disokong oleh keterangan fakta yang munasabah (reasonable doubt);

Tuan Hakim yang bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila tidak mengambil kira Perayu telah diminta untuk tidak membuat laporan polis atas kejadian dia dipukul tersebut sebagai menyelesaikan perkara ini di luar

Tuan Hakim yang bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila tidak mengambil kira percanggahan material diantara keterangan saksi-saksi pendakwaan;

Tuan Hakim yang bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila mendapati keterangan saksi SP2 adalah credible dan boleh dipercayai;

Tuan Hakim yang bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila mengambil kira video lucah yang dihantar oleh Perayu yang bukan salah satu elemen pertuduhan;

Tuan Hakim yang bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila mendapati terdapatnya keterangan corroboration;

Tuan Hakim yang bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila mendapati pembelaan Perayu adalah bersifat afterthought;

Tuan Hakim yang bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila memanggil Perayu untuk membela diri terhadap pertuduhan tersebut.” S/N R7YL97m3hk6tg1kIoLcz7A THE LAW

To secure a conviction under s. 14(a) of the Sexual Offences Against Children Act 2017 (Act 792) (“SOACA 2017”), the prosecution must prove the following elements beyond a reasonable doubt: - a. The appellant had touched any part of the body of a child, and b. The appellant had done the act for sexual purposes. Explanation 1 - The act of touching may involve the act of touching with any part of the body or with an object and may be done through anything, including anything worn by the person touching or by the child touched. Explanation 2 - In determining what constitutes sexual purposes, the court may take into consideration, among others, the part of the body that is touched, the nature and extent of the act of touching, or the physical contact and all other.

Act 792 applies to a child who is under the age of eighteen years and where this Act relates to any other written law, to a child of such age as specified in such written law.

As can be seen in the provisions of section 14 above, Parliament has made it clear its abhorrence for such offences where it has legislated that a mere touching of any part of the body of a child or even with an object for sexual purposes commits an offence and shall on conviction be punished with imprisonment for a term not exceeding twenty years and shall also be liable to whipping.

Such abhorrence can also be seen in the provisions of section 25 of this Act where it is expressly provided that “Notwithstanding paragraph 289(c) of the Criminal Procedure Code, if a person convicted of any offence under this Act is a male whom the court considers to be more than fifty years of age, he may still be punishable with whipping.”

In dealing with the offences against children, there is a relaxation of the evidentiary requirements and this can be seen in sections 17 and 18 of the said Act and are reproduced below: S/N R7YL97m3hk6tg1kIoLcz7A “17. Notwithstanding anything contrary in any other written law, in any proceedings against any person relating to any offence under this Act, or any offence specified in the Schedule where the victim is a child, a child is presumed to be competent to give evidence unless the court thinks otherwise.

Notwithstanding anything contrary in any other written law, in any proceedings against any person relating to any offence under this Act, or any offence specified in the Schedule where the victim is a child, the court may convict such person of such offence on the basis of the uncorroborated evidence of a child, given upon oath or otherwise.”

At this juncture it is appropriate to set out how the evidence of a child witness may be given pursuant to the Evidence of Child Witness Act 2007 (Act 676): - “3(1) A child witness may, at any stage of a trial, give evidence in any one or a combination of the following manner:

by having a screen between him and the accused or a child charged with any offence;

by live link; or

by video recording.

For the purposes of this section, any evidence given under subsection (1) shall be deemed to be evidence given in an open court.” FINDINGS OF THIS COURT

It is settled law that the appellate court would be slow in interfering with the decision of the trial Court be it an appeal against conviction or acquittal as well as sentence. It must be emphasized here that in any appeal against conviction/acquittal, it is not the function of an appellate court to make its own finding of fact. The function to make finding of fact is exclusively reserved by the law to the trial court. An appellate court is necessarily fettered because it lacks the audio visual, advantage enjoyed by the trial Court (PP v Mohd Radzi Abu Bakar [2005] 6 MLJ 393 and Dato Seri Anwar Ibrahim v PP [2002] 3 MLJ 193).

However, it is also trite law that the appellate court is duty bound to interfere with such finding if there are circumstances to justify such interference. Among others, the appellate court should interfere with such finding if the finding of fact suffers from some serious errors or the decision is against the weight of evidence (Dato Yap Peng v PP [1993] 221 MLJ 337) or that in the process of arriving at the conclusion of fact the lower court S/N R7YL97m3hk6tg1kIoLcz7A misdirected itself from the law [Lee Lai Sien v PP [1978] 1 MLJ 259) or that the decision of the trial court on the finding of fact was grossly against the weight of evidence (PP v Maarif [1969]

The Learned Sessions Court Judge, in his grounds of Judgment, had clearly stated that she found the victim (SP2) to be credible and found no motive for the victim to lie or create a story against the appellant. The Sessions Court also found evidence of corroboration on what transpired on the date of the incident from SP 1 (victim’s mother).

The Learned Sessions Court made the following findings of fact and ruling at the end of the defence case at page 20 of his grounds of judgment: - “[16] Berdasarkan keterangan pembelaan OKT ini, berikut adalah penemuaan fakta (finding of facts) oleh saya selaku Hakim bicara di akhir kes Pembelaan di mana OKT telah gagal menimbulkan keraguan yang munasabah terhadap kes pihak Pendakwaan di dalam pembelaannya khususnya membabitkan 3 isu penting pertuduhan iaitu: a) Berdasarkan fakta dan keterangan, OKT tidak pernah menafikan dan mengakui bahawa OKT ada S/N R7YL97m3hk6tg1kIoLcz7A menghubungi mangsa untuk berjumpa dan seterusnya telah berjumpa dengan mangsa secara berdua-duaan di dalam kereta OKT di belakang kedai Kopitiam 333 pada tarikh dan masa yang material tersebut; b) OKT juga mengakui ada berjumpa dengan ibu mangsa selepas kejadian tersebut dan telah pun diberi amaran oleh ibu mangsa agar jangan lagi menghubungi mangsa. OKT kemudian telah meminta maaf kepada ibu mangsa; c) OKT juga dalam pembelaannya ketika disoal balas oleh TPR mengakui ada menghantar video lucah kepada mangsa. [17] Walaupun OKT dalam pembelaannya menafikan yang dia ada melakukan perbuatan amang seksual terhadap mangsa seperti mencium pipi dan mulut serta meraba payu dara mangsa, tetapi penafian tersebut hanya bersifat bare denial dan tidak disokong oleh apa-apa bukti atau keterangan sebaliknya (otherwise) by ‘disproving’ a material facts rely and established by the prosecution. Dalam kes Saminathan & Ors vs. PP (1955) 21 MLJ 124, Buhagiar J menyatakan; S/N R7YL97m3hk6tg1kIoLcz7A “The fundamental principle in criminal cases is that there is burden on the prosecution, which never shifts, to prove its case. It is not upon the accused to prove his innocence and in that sense the burden in the defence is not as high as that of the prosecution; to entitled the accused to an acquittal it is sufficient if he raises a reasonable doubt in the prosecution case and this he may do by ‘disproving’ a material fact on which the prosecution relies by proving facts from which it may be inferred that a material fact on which the prosecution relies is not so probable that prudent man ought to act upon the supposition that the fact exists. The facts on which the defence rely must however be ‘proved’ and they are proved not by showing merely a possibility that such facts exists but by showing a probability of their existence, the degree of probability being a matter of prudence in the circumstances of the case”

It is my considered opinion that the Learned Sessions Court Judge had not committed any error in appreciating the facts before him. He had evaluated the evidence of the victim and believed in the evidence. He had also considered the appellant’s defence. I find that he had sufficiently addressed his mind to all relevant evidence before arriving at his decision. As such, there is no reason for this court to interfere with the finding of facts.

In the circumstances, I believe that there is no merit in this appeal against conviction. As such, the appeal against conviction is dismissed.

It is settled law that the appellate court would be very slow in disturbing the sentence imposed by the trial court. However, if ii is shown that the sentence is manifestly excessive or manifestly inadequate, the appellate court is duty bound to interfere and to substitute it with another appropriate sentence.

In Gek Sing A/L Kaliappan v Public Prosecutor [1999] 6 MLJ 641, Vincent Ng J held, in respect of the principles governing appellate intervention against sentence, as follows: - “(13) In an appeal on sentence from the subordinate courts, the High Court will not interfere with the sentence imposed, even should it be felt that a higher or lower sentence would be more appropriate, unless it can be shown to its satisfaction that in the circumstances of the particular case, the sentence was manifestly excessive or inadequate or that in fixing the sentence, the subordinate court had failed to adequately consider all relevant factors, either for or against the offender. See Joginder Singh v PP [1984] 2 MLJ 133; S/N R7YL97m3hk6tg1kIoLcz7A Leong Ka Kong v PP [1976] 2 MLJ 21 and PP v Ng Chong

The former Federal Court in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83, in the judgment of Raja Azlan Shah AG LP (Acting Lord President of Malaysia) provided more clarity on the considerations involved in appeals against sentence, in the following terms: - “Is the sentence harsh and manifestly excessive? We would paraphrase it in this way. As this is an appeal against the exercise by the learned judge of a discretion vested in him, is the sentence so far outside the normal discretionary limits as to enable this court to say that its imposition must have involved an error of law of some description? I have had occasion to say elsewhere, that the very concept of judicial discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. That is quite inevitable. Human nature being what it is, different judges applying the same principles at the same time in the same country to similar facts may sometimes reach different conclusions (see Jamieson v Jamieson [1952] AC 525, 549). It is for that reason that some very conscientious judges have thought it their duty to visit particular crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to view the same crimes with leniency. Therefore, sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, S/N R7YL97m3hk6tg1kIoLcz7A and the possibility or even the probability, that another court would have imposed a different sentence is not sufficient, perse, to warrant this court’s interference. For a discretionary judgment of this kind to be reversed by this court, it must be shown to our satisfaction that the learned judge was embarking on some unauthorised or extraneous or irrelevant exercise of discretion. We are far from convinced that any criticism of the learned judge is warranted. He took the course he did, in outweighing the plea of mitigation in favour of the public interest with a desire to uphold the dignity and authority of the law as administered in this country. We agree. That must receive the greatest weight. It is a serious offence to give false testimony, for it is in the public interest that the search for truth should, in general and always, be unfettered. The courts are the guardians of the public interest (see the Exclusive Brethren case [1980] 3 All ER 161, 172).”

While I wholly agree that sexual offences against children should be dealt with severely but at the same time, I am also of the view that the severity of the sexual act committed against children varies depending on the facts and circumstances of each and every case. The facts revealed that there was no sign or evidence of any form of violence involved nor was there any threat or injuries exerted by the appellant against the victim.

While recognising that no two cases present the same facts, the sentence of four years imprisonment and two strokes of whipping in the case before me is within the range of punishments for cases under s. 14 of the Sexual Offences Against Children Act 2017.

In my view the Learned Sessions Court Judge had taken into consideration all relevant factors when meting out the sentence. From the grounds of judgment, it is clear that the seriousness of the crime committed by the appellant was taken into account and these have been weighed against mitigating factors raised by the appellant.

Premised on the above, the appeal by the appellant against the conviction and sentence and that the prosecution’s cross appeal against sentence are therefore dismissed. The conviction and sentence of the Learned Sessions Court Judge is hereby affirmed. Since, the sentence involves imprisonment a stay of execution of the sentence was allowed pending the appellant’s appeal to the Court of Appeal. S/N R7YL97m3hk6tg1kIoLcz7A Dated 17th December 2025 t.t. KALYANA KUMAR A/L SOCKALINGAM JUDICIAL COMMISSIONER HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Appellant : Gan Hsien Yang Messrs Law Chambers of HY Gan For the Respondents :