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1 IN THE HIGH COURT IN MALAYA AT IPOH 5 IN THE STATE OF PERAK DARUL RIDZUAN CRIMINAL APPEAL CASE NO.: AA-41S-20-12/2023 BETWEEN 10 YUSSRI BIN YAHAYA .…APPELLANT [NRIC NO.: 730706-10-5977) AND 15 PUBLIC PROSECUTOR ….RESPONDENT GROUNDS OF JUDGMENT Introduction 20 [1]. This case involves an appeal by Yussri bin Yahaya (the appellant) against his conviction under Section 354 of the Penal Code, where he was found guilty of using criminal force to outrage the modesty of his stepdaughter, SP2. He was sentenced to 8 months’ 25 imprisonment by the Magistrate’s Court, leading to this appeal based on grounds of inconsistent testimony by SP2, routine and innocent access to SP2’s room, and a failure to consider key witness testimony that might suggest SP2 had a motive for fabrication. S/N vBo3/lyo9kWqVPrVvCusiA Background Facts 30 [2]. In this case, the victim (SP2) is the appellant’s stepdaughter, who is married to SP2's biological mother (SD2). On 9 July 2022, at approximately 8:00 a.m., SP8 was dropped off at the appellant's rented home by SP1(aunty of SP2, sister of SD2, mother of SP8), who informed SP2 of SP8’s arrival. SP2 opened the door and 35 instructed SP8 to sit in the living room before returning to her room to sleep. SP2 locked the main door to her room, which had a connecting door to the bathroom accessible from the kitchen. [3]. At around 8:00 a.m., the appellant returned home and asked SP8 if he had eaten. The appellant then cooked instant noodles for SP8 40 and instructed him to eat at a table near the kitchen. Afterwards, SP8 observed the appellant entering the bathroom, which provided access to SP2's room. [4]. While SP2 was asleep on her mattress, lying on her left side and facing the wall, she reportedly felt someone pressing on her body. 45 Upon waking, she saw the appellant, her stepfather, on her right side. In shock, SP2 allegedly kicked him in the stomach, causing the appellant to leave the room through the bathroom door and head toward the kitchen. The appellant denies the allegations, claiming that he entered the room through the bathroom door, which was not 50 locked from SP2’s side, solely to collect laundry as part of his household duties. He maintains that his actions were misinterpreted and asserts that his entry into the room was routine and without any intent to commit the alleged offense. S/N vBo3/lyo9kWqVPrVvCusiA [5]. After the incident, SP2 immediately called SP1 to report what had 55 happened. SP1 advised SP2 to leave the house. SP2 also sent a WhatsApp message to SP3, informing him that the appellant had entered her room and attempted to hug her. She invited SP3 to leave the house with her, but he refused. SP2 then woke another sibling, SP4, who was asleep in another room. In a groggy state, 60 SP4 entered SP2's room through the bathroom door and saw SP2 packing her clothes into a laptop bag. SP2 told SP4 about the incident and suggested they leave the house and go to their aunt SP5’s house on a motorcycle. SP4 retrieved the motorcycle keys from SP3’s room and invited SP8 to join them. 65 [6]. Outside the house, SP2 called her mother (SP1) again to inform her of the incident and her intention to leave. However, SP1 asked her to stay and wait at home until she returned. Despite this, SP2 left the house and headed to SP5’s house. [7]. Fifteen minutes later, SP2’s mother (SD2) arrived at the house and 70 called SP3 to inquire about what had happened. During this time, the appellant stated that he had only entered SP2’s room to collect dirty laundry. [8]. After reaching SP5’s house, SP2 narrated the incident to SP5, who calmed her down and accompanied her to the Behrang Police 75 Station, where SP2 lodged a police report at 10:21 a.m. [9]. After filing the report, SP2 saw her mother (SD2) and the appellant arrive at the police station. The appellant allegedly remarked to SP2, “Are you satisfied now?” Later that evening, at around 7:00 p.m., the appellant was arrested at the Muallim District Police Headquarters. 80 S/N vBo3/lyo9kWqVPrVvCusiA He was subsequently charged at the Tanjung Malim Magistrate’s Court on 8 September 2022. The charge reads as follows in the original text: “BAHAWA KAMU, PADA TARIKH 9/7/2022 JAM LEBIH KURANG 9 PAGI, BERTEMPAT DI BILIK KEDUA RUMAH NO. 85 XXXXXXXXX NEGERI PERAK, TELAH MENGGUNAKAN KEKERASAN JENAYAH TERHADAP YYYYYY, NO. KP: ZZZ BAGI MAKSUD MENCABUL KEHORMATANNYA DENGAN MENINDIH BADAN KAMU KE ATAS BADAN MANGSA. OLEH YANG DEMIKIAN, KAMU TELAH MELAKUKAN 90 KESALAHAN YANG BOLEH DIHUKUM DI BAWAH SEKSYEN 354 KANUN KESEKSAAN. HUKUMAN: DISEKSA DENGAN PENJARA SELAMA TEMPOH YANG BOLEH SAMPAI SEPULUH TAHUN ATAU DENGAN DENDA, 95 ATAU DENGAN SEBAT, ATAU DENGAN MANA-MANA DUA DARIPADA HUKUMAN-HUKUMAN ITU.” Elements of offense under Section 354 [10]. Section 354 of the Penal Code necessitates evidence of the accused assaulting or using criminal force against the victim. In Tay 100 Kiang Heong v. PP & Another Appeal [2024] 6 CLJ 532; [2024] 5 MLJ 323; [2024] AMEJ 0906, the Court of Appeal summed up that the prosecution must also establish intent to outrage modesty or knowledge that such actions were likely to do so. The court must scrutinise evidence showing physical actions, such as unwanted 105 contact, and determine whether these actions violated the victim's dignity. These elements are essential in establishing a prima facie S/N vBo3/lyo9kWqVPrVvCusiA case under the provision. In this case, the intent and actions of the accused must be scrutinised. Decision of the court 110 [11]. After carefully considering the submissions from both the appellant and the respondent (prosecution), this court is satisfied that the learned Magistrate erred in her judgment. The decision failed to adequately address critical issues raised, including inconsistencies in the complainant’s testimony and the lack of corroborative 115 evidence. Furthermore, the failure to give due weight to the appellant’s defence warrants appellate intervention. This court finds that these errors significantly impacted the outcome of the trial and justified the decision being set aside or reversed on appeal. Assessment of SP2’s motive and credibility in sexual offence cases 120 [12]. In cases involving allegations of sexual offences, courts must carefully evaluate the credibility of the complainant, particularly when there are potential underlying motives that could influence the truthfulness of the testimony. In this case, SP2's strained relationship with the appellant, her stepfather, is a relevant factor 125 that could affect her credibility. It is essential to thoroughly analyse all evidence, including circumstantial evidence, to ensure the prosecution's case meets the standard of proving guilt beyond a reasonable doubt. [13]. The testimony of SP2 indicates a history of familial tension, which 130 could suggest a motive to disrupt her mother’s marriage to the appellant. Evidence presented during the trial showed that SP2 did S/N vBo3/lyo9kWqVPrVvCusiA not interact closely or amicably with the appellant, supporting the defence’s assertion that her actions may have been influenced by personal animosity. Allegations arising from strained relationships 135 require scrutiny, as such dynamics could potentially lead to fabricated accusations. [14]. In cases where there is no direct evidence, corroboration becomes an essential factor. The lack of independent witnesses or physical evidence, in this case, necessitates SP2’s testimony in light of 140 circumstantial evidence and any indications of ulterior motives. While the absence of corroboration does not invalidate a complainant's testimony, the court must exercise caution and ensure its reliability is carefully assessed. [15]. In this case, SP2 admitted to having a strained relationship with the 145 appellant, her stepfather, which raises the possibility that her testimony could be influenced by animosity. Such circumstances demand a thorough examination of potential motives for fabrication. However, the Magistrate appears to have overlooked circumstantial evidence and testimony pointing to family tension and SP2’s 150 possible ulterior motives. By failing to give significant weight to this evidence, the decision of the Magistrate is flawed. In Cantona Lim Xiang Kim v. Public Prosecutor [2020] 1 MLJ 544; [2020] 1 CLJ 63, Her Ladyship Tengku Maimun JCA (as Her Ladyship then was) said: 155 “[19] As a matter of principle, an appellate court will not intervene with a decision of a trial court with whom the law entrusts the primary task of evaluating the evidence. The appellate court would only intervene if it is convinced that there was no judicial S/N vBo3/lyo9kWqVPrVvCusiA appreciation by the trier of fact of the evidence adduced at the 160 trial and that the trial court was shown to be plainly wrong in arriving at its decision, (see UEM Group Bhd (previously known as United Engineers (M) Bhd v. Genisys Integrated System Pte Ltd & Anor [2018] Supp MLJ 363; Hamit bin Matusin & Ors v. Penguasa Tanah dan Survei & Anor and another appeal [2006] 165 3 MLJ 289; Public Prosecutor v. Ahmad Firdaus bin Zulkifli [2017] 3 MLJ 492).” (Underlined is emphasised) [16]. The Magistrate should have required clear and compelling evidence 170 of criminal force to establish the offence beyond a reasonable doubt. The appellant's claim that he entered SP2’s room as part of his routine household duties, such as collecting laundry, is consistent and supported by other witnesses. In the absence of prior allegations or evidence of misconduct by the appellant toward SP2, 175 the circumstantial evidence relied upon by the lower court does not meet the high threshold required for a conviction. These oversights necessitate appellate intervention to ensure a balanced and fair evaluation of the evidence presented. [17]. This court holds that the Magistrate had failed to evaluate the 180 complainant's evidence in the context of all available evidence and the probabilities of the case. Such failure constitutes a misdirection, rendering the credibility assessment flawed and subject to appellate review. As Raja Azlan Shah J (as he then was) observed in Tengku Mahmood v. PP [1974] 1 MLJ 110; [1974] CLJU 176; [1974] 1 185 MLRH 347: S/N vBo3/lyo9kWqVPrVvCusiA "...a Judge of fact should always test the complainant's evidence against the totality of his evidence and the probabilities of the case. Failure to do so does amount, in my view, to a misdirection, and if it can be demonstrated that the trial Judge had failed to do 190 that, his conclusion as to credibility, cannot, in justice, be regarded as impeachable, much less unimpeachable. It would therefore be unjust for an appellate Court to regard itself as compelled to regard as conclusive his finding on the issue of credibility." 195 [18]. This principle reinforces the necessity for appellate courts to critically re-evaluate findings of fact when credibility and evidential weight were not adequately considered in the first instance Assessment of Appellant’s intent and timeframe of actions 200 [19]. In evaluating the appellant’s argument regarding the alleged incident, the court considers the sequence of events presented by the appellant as well as the intentions behind his actions that morning. The appellant contends that his presence in SP2’s room was brief and lacked criminal intent. Upon returning from work, he 205 was primarily occupied in the kitchen, preparing noodles for his nephew, Faris Haiqal (SP8). This task demonstrated he was preoccupied with a domestic chore rather than any malicious conduct. The appellant emphasises that his movement from the kitchen to SP2’s bedroom was solely to collect laundry items, a 210 routine and mundane household task, as he is said to be obsessive about keeping the house clean. S/N vBo3/lyo9kWqVPrVvCusiA [20]. Furthermore, the appellant asserts that the time taken to complete this movement from the kitchen to the bedroom was exceedingly short, making it improbable for him to have formulated any intention 215 to commit an offence during this period. This context provided by the appellant casts doubt on the feasibility of an assault occurring within such a constrained timeframe. The court acknowledges the appellant as a responsible and organised individual engaged in regular housekeeping duties, including ensuring the household’s 220 cleanliness and order. Therefore, his presence in SP2's room was thus solely for the practical purpose of gathering laundry, consistent with his established habits and responsibilities in the home. [21]. Considering this account, the appellant has presented a plausible explanation for his actions consistent with the behaviour of a person 225 performing routine household tasks rather than one acting with intent to outrage the modesty of another. The brevity of his presence in the room and the stated purpose of collecting laundry diminishes the likelihood of any criminal intent. Accordingly, this evidence provides a reasonable probable cause for the appellant's conduct, 230 which the Magistrate failed to properly weigh when assessing the overall credibility and plausibility of the prosecution’s allegations. [22]. Although the learned Magistrate did not accept the defence evidence outright, it was still his duty to consider whether the defence had raised a reasonable doubt in the prosecution's case. 235 The appellant presented a coherent and plausible account of the events, emphasising that his presence in SP2's room was brief and motivated by routine household tasks, specifically collecting laundry. This explanation was supported by the evidence of his S/N vBo3/lyo9kWqVPrVvCusiA consistent preoccupation with domestic responsibilities, including 240 preparing food for a family member and maintaining household cleanliness. Furthermore, the appellant highlighted the brevity of the time spent in SP2's room, which cast doubt on the feasibility of formulating or executing any criminal intent within such a short timeframe. 245 [23]. The appellant's version of events provided an alternative and reasonable interpretation of his conduct, that directly negates the prosecution's assertion of criminal intent. The learned Magistrate, however, failed to properly consider or weigh this explanation in light of the duty to assess whether the defence had raised a reasonable 250 doubt. This omission amounts to a misdirection in law regarding the onus of proof placed on the defence. Furthermore, it is imperative that the court provides clear reasons for rejecting the defence’s explanation before proceeding to convict. The absence of such reasoning reflects a failure to discharge this judicial duty, 255 necessitating appellate intervention to ensure justice. In this respect, I refer to the case of Tan Puan Chee v. Public Prosecutor [1981] 2 MLJ 282; [1981] CLJU 33; [1981] 1 MLRH 775, where Mohamed Azmi HCJ (as he then was): “Although the learned Magistrate did not accept the defence 260 evidence regarding Chan Kow and Kamal Batcha, before convicting the appellant, it was his duty to consider whether the defence had raised a reasonable doubt in the prosecution case. (See Mat v Public Prosecutor [1963] CLJU 82; [1963] 1 LNS 82, [1963] MLJ 263 and Mahadi v Public Prosecutor [1969] CLJU 265 103; [1969] 1 LNS 103, [1970] 1 MLJ 16. The failure of the learned Magistrate to do so would amount to a misdirection in S/N vBo3/lyo9kWqVPrVvCusiA law as to the onus of proof placed on the defence. It is important that the court must give reason or reasons for rejecting the defence story.” 270 Inconsistencies in SP2’s testimony and lack of immediate outcry [24]. SP2’s evidence contains notable inconsistencies regarding the alleged physical contact, as highlighted during cross-examination. Initially, she testified that the appellant touched her shoulder but later claimed that he was on top of her right side. Such variations 275 raise questions about the reliability of her account and the exact nature of physical contact. These inconsistencies affect the prosecution’s case and suggest potential inaccuracies in SP2’s recollection or description of events. I append below the crucial portions of the cross-examination of SP2, which the Magistrate 280 failed to make critical consideration of: “Q: Kita rujuk semula pada P3 di barisan tiga, “tiba-tiba saya rasa ada seseorang menindih badan”. Tindih badan ini adalah badan di atas badan? A: Tak setuju 285 … Q: Saya katakan menindih maksudnya sesuatu di atas sesuatu? A: Setuju … Q: Pada masa ini, saya katakan kamu belum nampak, sebab 290 kamu sebut “rasa”. Maksudnya belum nampak? A: Setuju … Q: Keterangan kamu tadi, rasa seperti badan disentuh. Sentuh bahagian mana? 295 S/N vBo3/lyo9kWqVPrVvCusiA A: Terasa sentuhan di bahu. …. Q: Setuju saya katakan menyentuh, menindih dan memeluk adalah tiga perbuatan berbeza? A: Setuju 300 Q: Jadi yang mana satu, sentuh ke peluk ke tindih? A: [Diam] Saksi tidak menjawab soalan.” [25]. In assessing the credibility of SP2's testimony, it is essential to apply the principle that, in the absence of contradiction or inherent 305 improbability, a witness’s evidence given on oath should generally be accepted. However, SP2's evidence regarding the alleged touch constituting the offence was inconsistent and unconvincing. When questioned on this crucial element of the offence, SP2 provided contradictory answers and, at a critical moment, refused to respond 310 when pressed by the appellant’s counsel for clarification [26]. Such inconsistencies and the refusal to provide a clear answer undermine the reliability of SP2's testimony on this fundamental aspect of the prosecution's case. Without consistent and credible evidence on this key point, the court must exercise caution before 315 relying on SP2's testimony to establish the first element of the offence. The failure to adequately address this inconsistency and its impact on the overall credibility of SP2’s account constitutes a serious oversight, warranting a reassessment of whether the prosecution has proven its case beyond reasonable doubt. 320 [27]. The above principle was aptly stated In PP v Mohamed Ali [1962] CLJU 129, where Thomson CJ put it in these words: S/N vBo3/lyo9kWqVPrVvCusiA “When a Police witness says something that is not inherently improbable his evidence must in the first instance be accepted. If he says he saw a cow jumping over the moon his evidence is, 325 of course, not to be accepted, but if be says he saw a cow wandering along one of the main streets of Kuala Lumpur (the sort of thing we all see every day of our lives) there is not the slightest justification for refusing to believe him. Of course if his evidence is contradicted by other evidence or is shaken by cross- 330 examination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent improbability the evidence of any witness, whether a Police witness or not, who gives evidence on affirmation, should 335 normally be accepted. (underlined is emphasised) [28]. Furthermore, SP2’s behaviour following the alleged assault is inconsistent with someone who experienced a sudden and 340 distressing incident. Despite having siblings in nearby rooms, SP2 did not call for help or scream immediately after the encounter. Instead, she calmly walked out and later communicated her discomfort to her aunt. Given the proximity of potential aid and the estranged relationship with the appellant, this lack of immediate 345 outcry undermines the credibility of her claim and suggests an absence of genuine distress that would typically accompany such an alarming encounter. S/N vBo3/lyo9kWqVPrVvCusiA Possible fabrication and conspiracy to disrupt the Appellant’s 350 Relationship with SP2’s Mother [29]. The appellant content that SP2’s allegations were fabricated with the motive of disrupting or ending the appellant’s relationship with her mother (SD2). This claim suggests that SP2, driven by dissatisfaction or familial discord, may have sought to damage the 355 stability of SD2’s marriage by presenting a narrative aimed at incriminating the appellant. According to the appellant, this alleged fabrication arises not from any criminal act by the appellant but rather from SP2’s possible objections to her mother’s marriage to the appellant. 360 [30]. To support this theory, the appellant submits aspects of SP2’s past interactions with the appellant and her strained relationship with him. The appellant submits that SP2 may have harboured resentment towards the appellant, which, combined with the appellant’s disciplinary role in the household, contributed to her 365 desire to break up the marriage between her mother (SD2) and the appellant. It must also be pointed out that there is no independent evidence that corroborates SP2's account of the events, which may raise questions about the reliability of her testimony. [31]. While allegations of conspiracy in family disputes are not 370 uncommon, the court must carefully examine the substance of such claims by assessing the credibility of the witnesses, the consistency of their testimonies, and the presence or absence of corroborative evidence. The court is mindful that the existence of a motive to disrupt the familial relationship could affect the perceived credibility 375 S/N vBo3/lyo9kWqVPrVvCusiA of SP2's testimony. However, without substantive evidence to support the accusation, the claim remains speculative [32]. In a case such as this, where a stepdaughter lives under one roof with the appellant stepfather, with whom she neither communicates nor shares a friendly relationship, any fabricated allegations by the 380 estranged stepdaughter could arise at any moment, whether day or night, asleep or awake. Disproving such cases is challenging, as they often occur without the presence of eyewitnesses. Furthermore, being a sexual offence, the courts must treat such matters with the utmost caution. I am emphasising that when 385 circumstantial evidence, along with evidence of an underlying motive or strained relationship between the victim and appellant, forms part of the case, the court must carefully consider it, as it may be the only evidence available to the appellant. In this case, it appears that such evidence exists, but the Magistrate failed to 390 consider them and give it due weight properly. [33]. The evidence elicited during cross-examination and re-examination strongly suggests that SP2 fabricated the alleged touching due to resentment toward her stepfather. SP2 admitted to not being close to him, highlighting a strained relationship and emotional distance. 395 She emphasised her preference for her biological father, describing him as loving and stating she lived with him after her parents’ divorce. This favouritism, coupled with her dissatisfaction over her mother’s remarrying the appellant, suggests a motive to disrupt her mother’s current marriage. SP2’s testimony also contained 400 inconsistencies, particularly in describing the alleged incident, including contradictory statements about being touched, pressed, S/N vBo3/lyo9kWqVPrVvCusiA and embraced, undermining her credibility. Furthermore, SP2 displayed awareness of her stepfather’s routines, suggesting the opportunity to fabricate a story. Her choice to report the incident to 405 her aunts first, rather than her parents, further reflects underlying distrust and animosity toward her stepfather. Despite her denial of hating him, her admission of discomfort in his presence, coupled with her consistent rejection of reconciliation, reflects lingering bias. These inconsistencies, her strained familial relationship, and her 410 potential motive to harm her stepfather’s marriage create substantial doubt about the truthfulness of her allegations, pointing toward the likelihood of fabrication. Failure to consider SD2’s testimony on family dynamics 415 [34]. The appellant submits that the Magistrate failed to consider the evidence provided by SD2 (SP2's mother and the appellant's wife), which offered an alternative perspective on the family dynamics and the possible motives behind SP2’s allegations. SD2 testified that SP2 had shown resistance and animosity towards her marriage with 420 the appellant. She recounted incidents of conflict and instances where SP2 avoided the appellant, preferring instead to stay with her biological father. According to the appellant, this evidence proves the strained relationship between SP2 and the appellant, suggesting a motive for fabricating the allegations to disrupt her mother’s 425 marriage. [35]. The appellant argues that the Magistrate erred by disregarding SD2’s testimony, which could have cast doubt on SP2’s credibility S/N vBo3/lyo9kWqVPrVvCusiA and provided context for the alleged incident. The appellant contends that the Magistrate’s omission to consider SD2's 430 perspective resulted in a one-sided assessment. Routine access through the shared bathroom door shows the entry was innocent [36]. The appellant argues that his access to SP2’s room through the bathroom door, a pathway commonly used due to the house layout, 435 does not indicate illicit intent. This door provides shared access, and given that the shared bathroom door was not locked from SP2’s side, entering through it was a routine, practical means of moving between spaces within the household. The appellant contends that on the morning in question, he entered SP2’s room through this door 440 for household purposes, only to collect laundry, without any ill motive to intrude upon her. [37]. This context of shared access supports the appellant’s position that his entry was innocent, not with any intent to commit any offence. The appellant asserts that the Magistrate failed to recognise this 445 established household practice. Thus, this detail regarding access mitigates the appellant’s actions, framing them within the context of routine household activity and challenging the prosecution’s narrative of intent. The Sentence imposed by the Magistrate is disproportionate to the 450 evidence presented [38]. The 8-month imprisonment sentence imposed by the Magistrate warrants careful review concerning proportionality and intent under S/N vBo3/lyo9kWqVPrVvCusiA Section 354 of the Penal Code. Section 354 provides that a person convicted of using criminal force with intent to outrage 455 modesty may face imprisonment for up to 10 years, a fine, whipping, or any two of these punishments. However, given the appellant’s assertion that he entered SP2’s room solely for household purposes, along with inconsistencies in SP2's testimony and the lack of corroborative evidence, the sentence appears 460 disproportionate to the evidence presented. These factors suggest that a reduced sentence or acquittal would better align with the circumstances and the appellant’s stated lack of criminal intent. Conclusion [39]. In light of the Magistrate's failure to adequately consider SD2’s 465 testimony, which highlighted strained family dynamics suggesting a possible motive for SP2 to fabricate allegations due to resentment toward her mother’s marriage to the appellant, and the circumstantial evidence regarding the appellant’s intent and the timeframe during which the offence was allegedly committed, this 470 omission resulted in an imbalanced assessment. This failure deprived the appellant of the opportunity to effectively exculpate himself from the charge. Furthermore, considering the inconsistencies in SP2’s testimony and the lack of corroborative evidence, this court finds that reasonable doubt exists regarding the 475 appellant’s actions and intent. Accordingly, the appellant’s conviction is set aside. In addition, I am of the view that the sentence meted out by the Magistrate is also disproportionate to the circumstances presented. S/N vBo3/lyo9kWqVPrVvCusiA [40]. Justice Azahar Mohamed JCA (as he then was) in Davendar Singh 480 Sher Singh v. PP [2012] 3 AMR 489; [2012] MLJU 321; [2012] CLJU 261; [2012] 3 MLRA 114 had the opportunity to comment on the role of the appellate judge. His Lordship stated: “[9]...an appellate Court is generally very reluctant to disturb a finding of fact by any trial judge for the reason that as trier of fact 485 the trial judge has audio-visual advantage which we do not have. Nonetheless, it would be open to us to upset the findings made by a trial judge if such a finding is not supported by evidence or the decision is against the weight of the evidence or there is no proper judicial fundamentally misdirected itself. In this regard, 490 judicial appreciation and evaluation of evidence is at the heart of the duty of the learned trial judge. It is the duty of the learned trial judge to undertake a positive evaluation of the evidence, which includes a careful analysis of the credibility and reliability of the witnesses for the prosecution (see: Balachandran v. Public 495 prosecutor, [2005] 2 MLJ 301). It is also his duty to consider the entire evidence presented before him, including the evidence which favours the defence. On what constitutes judicial appreciation of evidence, it is apt to bear in mind the following words of Gopal Sri Ram JCA (as he then was) in Lee Ing Chin v. 500 Gan Yook Chin; [2003] 2 MLJ 97; [2003] 2 CLJ 19; [2003] 2 AMR 357: "A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either 505 accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of 510 S/N vBo3/lyo9kWqVPrVvCusiA any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the 515 case. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness' evidence runs the risk of having his findings corrected on appeal. It does not matter the approach 520 to judicial appreciation of evidence is the same." (Underlined is emphasised) [41]. In the upshot, I find there are significant inconsistencies and 525 contradictions in SP2’s testimony that cast doubt on the alleged outrage of modesty: a) SP2’s evidence contained material inconsistencies regarding the alleged physical contact, including contradictory statements about being touched, pressed, or embraced, and 530 her refusal to clarify key points during cross-examination undermines her credibility; b) SP2 displayed a history of familial tension and animosity towards the appellant, her stepfather, as evidenced by her preference for her biological father and her discomfort in the 535 appellant’s presence, suggesting a potential motive to disrupt her mother’s marriage; S/N vBo3/lyo9kWqVPrVvCusiA c) the lack of immediate outcry or any attempt to alert her siblings, who were nearby, is inconsistent with the behaviour of a victim of a sudden and distressing incident; 540 d) the appellant’s explanation of entering SP2’s room for routine household duties, such as collecting laundry, was consistent and corroborated by evidence of shared access through the bathroom door; e) the learned Magistrate failed to adequately consider the 545 appellant’s defence or the testimony of SP2’s mother, which proves the strained familial dynamics and the possibility of fabrication. [42]. The failure of the Magistrate to judicially evaluate all evidence, 550 particularly the circumstantial evidence of SP2’s potential motive and inconsistencies in her testimony, constitutes a misdirection in law. The prosecution failed to establish the intent or criminal force required under Section 354 of the Penal Code beyond a reasonable doubt. As such, I allow the appeal. The appellant is 555 hereby discharged and acquitted, and the conviction and sentence imposed by the Sessions Court are set aside. 560 S/N vBo3/lyo9kWqVPrVvCusiA Date: 7 January 2025 Moses Susayan 565 MOSES SUSAYAN Judicial Commissioner High Court in Malaya at Ipoh, Perak 570 For the appellant: Siti Salwa Ja’afar Advocates and Solicitor Messrs Khairul Suhail Salwa & Co Klang, Selangor 575 For the respondent: Geetha Jora Singh Deputy Public Prosecutor Prosecution Unit Perak Legal Advisor Offices 580 (Notice: This Grounds of Judgment is subject to further editing) Headnotes Penal Code – Section 354 – Appeal against conviction and sentence for 585 sexual assault – Appellant alleged to have outraged the modesty of his stepdaughter (SP2) – SP2 claimed appellant entered her room and pressed against her body while she was asleep – Appellant argued his S/N vBo3/lyo9kWqVPrVvCusiA entry was routine and for household duties, specifically collecting laundry – Magistrate convicted appellant based on SP2’s testimony – Appellant 590 challenged the decision citing inconsistencies in SP2’s account, lack of corroborative evidence, and strained family dynamics indicating potential motive for fabrication – Appeal allowed due to reasonable doubt. Criminal Procedure – Evaluation of Evidence – Duty of court to critically evaluate all evidence, including inconsistencies and ulterior motives – 595 SP2’s testimony contained contradictions regarding physical interaction and refusal to clarify during cross-examination – Lack of immediate outcry– Evidence of strained familial relationships and SP2’s possible motive to fabricate allegations against the appellant – Magistrate failed to weigh defence’s plausible explanation of routine entry and household 600 duties – Appellate court found misdirection in law and failure to judicially evaluate all evidence – Appeal allowed, conviction and sentence set aside S/N vBo3/lyo9kWqVPrVvCusiA