Mohd Redzuan Zakaria

[2020] MLRHU 1749 v. PP pg 1

MOHD REDZUAN ZAKARIA

v.
PP

High Court Malaya, Kuala Lumpur

Ahmad Shahrir Mohd SallehJC
[Criminal Appeal Nos: WA-41S-7-07-2018 & WA-41H-29-07-2018]
1 January 2020

Case(s) referred to:

Aziz Muhamad Din v. Public Prosecutor [1996] 1 MLRH 674; [1996] 5 MLJ 473;
[1997] 1 CLJ 523 (refd)
Dickson Levy Maria George v. Public Prosecutor [2018] MLRAU 49; [2018]
MLJU 98 (refd)
Duis Akim & Ors v. PP [2014] 1 MLRA 92; [2014] 1 MLJ 49; [2013] 9 CLJ 692;
[2013] 6 AMR 421 (refd)
Lim Kheak Teong v. Public Prosecutor [1984] 1 MLRA 126; [1985] 1 MLJ 38;
[1984] 1 CLJ (Rep) 207 (refd)
Mohd Abdullah Ang Swee Kang v. PP [1987] 1 MLRA 43; [1988] 1 MLJ 167;
[1987] 2 CLJ (Rep) 405 (refd)
Periasamy Sinnappan v. PP [1996] 1 MLRA 277; [1996] 2 MLJ 557; [1996] 3 CLJ
187; [1996] 2 AMR 2511 (refd)
PP v. Chan Wai Heng [2008] 2 MLRA 52; [2008] 5 MLJ 798; [2008] 5 CLJ 805;
[2008] 5 AMR 488 (refd)
Public Prosecutor v. Ma'arif [1969] 1 MLRH 97; [1969] 1 MLRH 596; [1969] 2
MLJ 65 (refd)
Tham Kai Yau & Ors v. Public Prosecutor [1976] 1 MLRA 279; [1977] 1 MLJ 174
(refd)

Legislation referred to:

Child Act 2001, s 2(1)
Criminal Procedure Code, ss 173(m), 269, 316
Penal Code, ss 350, 354

Counsel:
For Criminal Appeal No: WA-41S-7-07-2018
For the appellant: Surya Putra Mohamed Taulan; M/s Saufi Putra & Associates
For the respondent: Fatin Hanum Abdul Hadi; DPP
For Criminal Appeal No: WA-41H-29-07-2018
For the appellant: Fatin Hanum Abdul Hadi; DPP
For the respondent: Surya Putra Mohamed Taulan; M/s Saufi Putra & Associates

[Order Accordingly]
 Mohd Redzuan Zakaria
pg 2 v. PP [2020] MLRHU 1749

JUDGMENT

Ahmad Shahrir Mohd Salleh JC:

Introduction

[1] This is an appeal by the accused against the decision of the learned
Magistrate in convicting him of an offence under s 354 of the Penal Code and
a cross-appeal by the Public Prosecutor against the sentence imposed. The
parties are referred to as they were at the trial court.

The Charge

[2] The charge proffered against the accused reads as follows:

"Bahawa kamu pada 9 February 2017 jam antara 8:00 malam hingga
9:00 malam, bertempat di ruang tamu di alamat XXXXXXXXXX,
Kuala Lumpur, telah pegang kemaluan dengan memasukkan tangan
dalam seluar XYZ berumur 5 tahun 11 bulan dengan maksud hendak
mencabul kehormatannya dan dengan itu kamu telah melakukan satu
kesalahan yang boleh dihukum di bawah s 354 Kanun Keseksaan.".

Brief Facts

[3] PW3 is the mother of the victim. PW3 is "pasar malam" trader and a single
mother. PW3 normally sent her daughter to the house of her husband to-be.
Her husband to-be is a widower with a daughter who was in Form 1 and a son
who was in Standard 6 at the material time. Her husband to-be is also a "pasar
malam" trader and both of them went to trade at the same "pasar malam".
When PW3 returned after the "pasar malam" trading, she would pick her
daughter up and went home. That would normally be around 10:30 pm or
sometimes at 11:00 pm the latest.

[4] At the house of her husband to-be, her daughter together with the children
of her husband to-be would normally go to the "ustaz" place, located just
beside the house of her husband to-be, to learn to recite the holy Al-Quran.
This would be after the Maghrib prayers. There were many groups of students
who learn reciting the holy Al-Quran from the "ustaz". PW3 had been sending
her daughter to learn to recite the holy Al-Quran with the "ustaz" for almost 2
months prior to the incident.

[5] According to PW3, when she got home from the "pasar malam" trading on
10 February 2017, her daughter, the victim, complained to her that she felt
pain on her private parts. Thinking that her daughter did not wash-up
properly, PW3 took her daughter to the bathroom and applied soap in an
attempt to wash her. When PW3 did this, her daughter screamed out loud and
said she felt pain.

[6] PW3 then just washed-up her daughter with water and took her inside the
room. PW3 inspected her private parts. PW3 said she saw red marks on her
 Mohd Redzuan Zakaria
[2020] MLRHU 1749 v. PP pg 3

daughter's private parts. PW3 asked her daughter what had happened and her
daughter said that the "ustaz" had touched her private parts. Her daughter said
this happened when she was learning to recite the holy Al-Quran with the
"ustaz".

[7] PW3 then asked her husband to-be what should they do. They then
decided to take her daughter to the hospital for proper medical examination.
When they reached the hospital, the doctor in-charge then asked PW3 to lodge
a police report first. After PW3 lodged a police report, her daughter was
examined by the doctor. PW3 said the doctor told her that there was a
laceration mark on her daughter's private parts. After the incident, PW3 said
her daughter appeared moody and depressed. PW3 said her daughter became
afraid of men, whether known or unknown to her and would run and hide
behind PW3.

[8] The victim was examined by Dr. Muhammad Shihab bin Ismail (PW4).
According to PW4, on 10 February 2017 he received a patient by reference
from the Emergency Department of the Serdang Hospital. The patient came
with her mother and complained that the patient is suspected to have been
molested and PW4 proceeded to examine the patient together with the
specialist on-duty, in particular at the private parts of the patient. PW4 found
red laceration marks on the private parts but there was no hymen tear. The red
laceration marks looked fresh, estimated to age between 24 hours to 48 hours.

[9] The victim (PW2) gave evidence under oath. Although when the trial
commenced, she was aged 7 years, the learned Magistrate found that PW2
could properly understand the concept, idea and consequences of speaking
under oath. The learned Magistrate, after holding an inquiry to ascertain
whether PW2 understands the duty to speak the truth, went on to hear PW2's
evidence under oath.

[10] In her evidence, PW2 said the incident happened at the "ustaz" house.
PW2 relate how she felt pain on her private parts because she was touched by
the "ustaz". PW2 said the "ustaz" touched her using his hands. PW2 said she
pushed the "ustaz" hands away because she said that no one can touch private
parts. PW2 said she did not say anything when she pushed away the "ustaz"
hands but she ran towards her "brother" (the son of PW3's husband to-be) who
was then busy with his drawings. PW2 then asked his "brother" to go home
and they went home together. At home, PW2 said she told her mother what
had happened. PW2 said no one had ever done the same thing to her except
for the "ustaz".

Brief Deliberations

Contention of the defence/appellant

[11] The learned counsel challenged the findings of the learned Magistrate on
the following grounds:
 Mohd Redzuan Zakaria
pg 4 v. PP [2020] MLRHU 1749

(a) that PW2 did not understand the nature of an oath and the learned
Magistrate should not have allowed PW2 to give her evidence under
oath;

(b) that the learned Magistrate should have directed for the evidence of
PW2 to be taken down in writing under s 269 of the Criminal
Procedure Code instead of under s 133A of the Evidence Act 1950;

(c) that PW2 herself could not exactly identify the location of the
house of PW'3 husband to-be whom PW2 referred to as her "uncle's"
house;

(d) that there was no evidence to corroborate the evidence of PW2;

(e) that adverse inference under s 144(g) of the Evidence Act 1950
should be invoked against the prosecution for its failure to call the son
of PW3's husband to-be who was present at the scene as a witness;

(f) that the defence has succeeded in raising a reasonable doubt in the
prosecution's case. The witnesses called by the defence said that on the
date in question, PW2 and the other child did not come over for the
holy Al-Quran recital because it was a holiday.

Contention of the prosecution/respondent

[12] The learned Deputy Public Prosecutor did not file written submissions in
response of the appeal by the accused and submitted orally. The learned
Deputy Public Prosecutor in her oral submissions contends that the learned
Magistrate had carefully ascertained that PW2 understood the duty to speak
the truth and that PW2 understood the consequences of speaking under oath.
In respect of the non-calling of the children of PW3's husband to-be, the
learned Deputy Public Prosecutor submits that both of them did not witness
what had happened to PW2 as they were doing something else at that time. As
such, there was no necessity to call them as witnesses. On her appeal against
sentence, the learned Deputy Public Prosecutor submits that the sentence
imposed by the learned Magistrate is manifestly inadequate as the learned
Magistrate had failed to take into account rampancy of the offence and public
interest considerations. The learned Deputy Public Prosecutor urged this
Court to impose whipping as additional sentence against the accused.

Analysis And Decision

[13] In hearing an appeal from a subordinate court, the duty of this Court is
provided for under s 316 of the Criminal Procedure Code.
 Mohd Redzuan Zakaria
[2020] MLRHU 1749 v. PP pg 5

Section 316 of the Criminal Procedure Code provides as follows:

"Decision on appeal

316. At the hearing of the appeal the Judge may, if he considers there
is no sufficient ground for interfering, dismiss the appeal, or may:

(a) in an appeal from an order of acquittal, reverse the order,

and direct that further inquiry be made, or that the accused be
retried, as the case may be, or find him guilty and pass
sentence on him according to law;

(b) in an appeal from a conviction or in an appeal as to

sentence -

(i) reverse the finding and sentence and acquit or

discharge the accused, or order him to be retried; or

(ii) alter the finding, maintaining the sentence, or with

or without altering the finding reduce or enhance the
sentence or alter the nature of the sentence;

(c) in an appeal from any other order, alter or reverse such

order.".

[14] It is trite that in exercising its appellate powers, the High Court should
properly consider and carefully weigh matters such as:

(a) the views of the trial judge on the credibility of witnesses;

(b) the presumption of innocence in favour of the accused;

(c) the right of the accused to the benefit of any doubt; and

(d) the slowness of an appellate court in disturbing a finding of fact

arrived at by a trial judge who had the advantage of seeing the
witnesses.

(See: Lim Kheak Teong v. Public Prosecutor [1984] 1 MLRA 126; [1985] 1 MLJ
38; [1984] 1 CLJ (Rep) 207 and Periasamy Sinnappan v. PP [1996] 1 MLRA
277; [1996] 2 MLJ 557; [1996] 3 CLJ 187; [1996] 2 AMR 2511.

[15] At the conclusion of the trial, the trial court is under the statutory duty
pursuant to s 173(m) of the Criminal Procedure Code to consider whether the
prosecution has succeeded in proving its case beyond a reasonable doubt.
 Mohd Redzuan Zakaria
pg 6 v. PP [2020] MLRHU 1749

Section 173(m) of the Criminal Procedure Code reads as follows:

"173. The following procedure shall be observed by Magistrates in

summary trials:

(m) (i) At the conclusion of the trial, the Court shall consider all the
evidence adduced before it and shall decide whether the prosecution
has proved its case beyond reasonable doubt.

(ii) If the Court finds that the prosecution has proved its case beyond
reasonable doubt, the Court shall find the accused guilty and he may
be convicted on it and the Court shall pass sentence according to law.

Provided that before the Court passes sentence, the Court shall, upon
the request of the victim of the offence or the victim's family, call upon
the victim or a member of the victim's family to make a statement on
the impact of the offence on the victim or his family; and where the
victim or a member of the victim's family is for any reason unable to
attend the proceedings after being called by the Court, the Court may
at its discretion admit a written statement of the victim or a member of
the victim's family.

(iii) If the Court finds that the prosecution has not proved its case
beyond reasonable doubt, the Court shall record an order of
acquittal.".

[16] In Duis Akim & Ors v. PP [2014] 1 MLRA 92; [2014] 1 MLJ 49; [2013] 9
CLJ 692; [2013] 6 AMR 421, the apex Court made the following observations
in respect of the duty cast upon the appellate courts when considering
decisions of the trial courts:

"[22] It is trite that being an appellate court it is our task in this case to
review and consider the decision of the courts below. We need to
determine whether on the evidence adduced the defence was rightly
called. If so, whether the defence had raised a reasonable doubt in the
prosecution's case. And even if it did not it is still essential that to
sustain the convictions it must be determined whether the prosecution
had proved its case beyond reasonable doubt.".

[17] The accused was charged under s 354 of the Penal Code. Section 354 of
the Penal Code provides as follows:

"Assault or use of criminal force to a person with intent to outrage

modesty

354. 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
 Mohd Redzuan Zakaria
[2020] MLRHU 1749 v. PP pg 7

with any two of such punishments.".

[18] In proving a charge under s 354 of the Penal Code against the accused,
the following ingredients must be proved:

(a) there must have been assault or use of criminal force; and

(b) the assault or criminal force must have been made with the
intention to outrage the persons modesty or with the knowledge that
the person's modesty was likely to be outraged.

[19] "Criminal force" is defined under s 350 of the Penal Code as follows:

"Criminal force

350. Whoever intentionally uses force to any person, without that

person's consent, in order to cause the committing of any offence, or
intending by the use of such force illegally to cause, or knowing it to
be likely that by the use of such force he will illegally cause injury,
fear, or annoyance to the person to whom the force is used, is said to
use criminal force to that other.".

[20] In making the finding of a prima facie case against the accused, the
learned Magistrate said that he had placed a high probative value on the
evidence of the child, PW2, and that despite her tender age, the learned
counsel has not been able to break her in cross-examination. PW2 gave her
evidence in a convincing manner and that has led the court to accept her
evidence without hesitation. The learned Magistrate also found that other
evidence, such as the evidence of the PW2's mother, PW3, the doctor (PW4)
who examined PW2, the Psychologist (PW5) and the investigating officer
(PW6) strongly supported the narration of the prosecution's case. This was
further strengthened by the medical report (Exhibit P1) which is consistent
with the complaint made by PW2 of the molest committed against her by the
accused. The learned Magistrate found that the prosecution has succeeded in
proving a prima facie case against the accused and called upon him to enter his
defence.

[21] An appeal is merely a continuation of trial and the evidence adduced at

the trial stage is opened to this Court at the appellate stage for re-examination
to determine whether or not the findings made by the trial court is correct.
This principle is enunciated in the case of Public Prosecutor v. Ma'arif [1969] 1
MLRH 97; [1969] 1 MLRH 596; [1969] 2 MLJ 65 and affirmed by the Court
of Appeal in Dickson Levy Maria George v. Public Prosecutor [2018] MLRAU
49; [2018] MLJU 98 CA. It thus incumbent upon this Court to review the
evidence adduced by the prosecution and the defence to determine the
correctness of the decision of the learned Magistrate.

[22] In considering the present appeal, foremost on my mind is the fact that the
learned Magistrate has had the audio-visual advantage of the "live" evidence of
 Mohd Redzuan Zakaria
pg 8 v. PP [2020] MLRHU 1749

the witnesses and this Court at the appellate stage should not disturb any
findings of facts made by the learned Magistrate unless they are against the
weight of the evidence thus adduced.

[23] The main evidence considered by the learned Magistrate is the evidence of
the victim herself, PW2. When PW2 gave evidence, she was 7 years old.
Clearly when PW2 gave evidence, she was a child within the meaning of s 2(1)
of the Child Act 2001.

Section 2(1) of the Child Act 2001 provides as follows:

"Interpretation

2. (1) In this Act, unless the context otherwise requires-

"child"-

(a) means a person under the age of eighteen years;

and

(b) in relation to criminal proceedings, means a person

who has attained the age of criminal responsibility as
prescribed in s 82 of the Penal Code [Act 574];".

[24] In dealing with the evidence of PW2, the learned Magistrate was fully
cognisant of the provisions of the law regulating the reception of child
evidence. In his grounds of judgment, the learned Magistrate had ensured that
PW2 was comfortable and not under any kind of stress before proceeding to
take her evidence. The learned Magistrate also had ingeniously placed two
colouring books and some crayons in front of PW2 and noticed that PW2 did
not even touch them but instead gave her full attention to the proceedings
which was conducted in camera. Not satisfied with the questions posed to
PW2 by the learned DPP, the learned Magistrate himself took the initiative to
embark on a further exercise to satisfy himself whether the evidence of PW2
should be received pursuant to s 133A of the Evidence Act 1950 or as evidence
under oath.

Section 133A of the Evidence Act 1950 reads as follows:

"Evidence of child of tender years

133A. Where, in any proceedings against any person for any offence,
any child of tender years called as a witness does not in the opinion of
the court understand the nature of an oath, his evidence may be
received, though not given upon oath, if, in the opinion of the court,
he is possessed of sufficient intelligence to justify the reception of the
evidence, and understands the duty of speaking the truth; and his
evidence, though not given on oath, but otherwise taken and reduced
into writing in accordance with s 269 of the Criminal Procedure Code
shall be deemed to be a deposition within the meaning of that section:
 Mohd Redzuan Zakaria
[2020] MLRHU 1749 v. PP pg 9

Provided that, where evidence admitted by virtue of this section is

given on behalf of the prosecution, the accused shall not be liable to be
convicted of the offence unless that evidence is corroborated by some
other material evidence in support thereof implicating him.".

[25] A reading of s 133A of the Evidence Act 1950 clearly shows its
applicability in cases where the witness is a child of tender years and the
evidence received by the court is not given by the child under oath. In such a
situation, the court received the evidence of the child as a disposition under s
269 of the Criminal Procedure Code where the court is in the opinion that the
child possesses sufficient intelligence and understands the duty to speak the
truth.

[26] The case of Aziz Muhamad Din v. Public Prosecutor [1996] 1 MLRH 674;
[1996] 5 MLJ 473; [1997] 1 CLJ 523, held as follows:

"Generally, in Malaysia there is no specific rule of law that requires

the evidence of a witness to be corroborated except in the case of the
evidence of a child of tender years under s 133A of the Act. However,
in certain types of cases there is a rule of practice which requires
evidence to be corroborated. This includes the evidence of a
complainant in a case involving a sexual offence. Even in such cases a
conviction based on uncorroborated evidence is not illegal. But the
rule of practice regulates the manner in which uncorroborated
evidence is to be treated, that is to say, the judge must warn himself of
the dangers of convicting on such evidence.".

[27] However, in Tham Kai Yau & Ors v. Public Prosecutor [1976] 1 MLRA
279; [1977] 1 MLJ 174, the Federal Court held:

"The appeal was brought on several grounds. We did not intend to

deal with all of them as we felt there was not much substance in them.
We needed to consider only two. One of them was that the jury were
not given due warning against accepting the evidence of PW8 who
was 13 years of age at the time of the incident and 14 when he gave
evidence, without corroboration. In cases involving child evidence of
tender years, we are of the opinion that it would not be necessary to
give a formal warning that it is dangerous to convict on the
uncorroborated evidence of a child of tender years. It is sufficient if the
judge adopts the prudent course of advising the jury to pay particular
attention to or to scrutinise with special care, the evidence of young
children and explains the tendencies of children to invent and distort.
The objection in such a case as this, is not on the grounds of
complicity, as in the case of an accomplice, or on the grounds of an
oath against an oath, as in the case of a prosecutrix in a sexual offence
against her, but on the ground of tendency of a child of tender years to
confuse fantasy with reality." (See: Loo Chuan Huat v. Public
Prosecutor [1971] 1 MLRA 761; [1971] 2 MLJ 167b.)
 Mohd Redzuan Zakaria
pg 10 v. PP [2020] MLRHU 1749

In the present case, however, the learned judge did not consider PW8,
a child of tender years and he was satisfied that he possessed sufficient
intelligence to understand the meaning and significance of an oath.
The absence of such warning therefore was not fatal as there was in
fact substantial corroboration of the boy's evidence. The appeal on this
ground, we thought, must therefore fail.".

[28] In PP v. Chan Wai Heng [2008] 2 MLRA 52; [2008] 5 MLJ 798; [2008] 5
CLJ 805; [2008] 5 AMR 488 it was held that:

"[15] Section 133A refers to a situation where a child of tender years is

called as a witness and does not understand the nature of an oath. In
such a situation his evidence may still be received though not given
upon oath if in the opinion of the court he possesses sufficient
understanding to justify the reception of the evidence, and the child
understands the duty of speaking the truth.

[16] The first part of s 133A therefore governs the admissibility of the
evidence of the child though not given under oath. The proviso deals
with the way in which the evidence once admitted is to be treated, that
is, where the evidence admitted as such is given on behalf of the
prosecution, the proviso requires that the evidence is to be
corroborated by some other material evidence in support thereof in
order to implicate the accused.".

Heliliah JCA then went on to explain as follows:

"... Once a witness is found to be a competent witness, even if

he is not competent to take an oath or if there is an omission
to take an oath that will not invalidate the proceedings or
render inadmissible the evidence. The rule generally is in
favour of admission of evidence though the weight to be
attached to it will naturally be a matter for consideration by
the Court. There is always competency unless the Court
considers otherwise. If a witness is not competent he will not
be examined in Court. In the case of a child, it depends on the
capacity of the child, his appreciation of the difference
between truth and falsehood as well as his duty to tell the
former. The decision of this question rests with the trial Judge,
who sees the proposed witness, notices his manner, his
apparent possession, or lack of intelligence. The trial Judge
may resort to any examination which will tend to disclose the
capacity and intelligence and in the case of an oath, his
understanding of the obligation of an oath. (See Rameswar
Kalyan Singh v. State of Rajasthan AIR [1952] SC 54: (1952 Cri
LJ 547), George L. Wheeler v. United States, 159 US 523,
Krishna Kahar v. Emperor AIR [1940] Cal 182, Ram Hazoor
Pandey v. State AIR [1959] All 409: (1959 Cri LJ 796), Basu v.
State of Kerala [1960] ILR Ker 256, and Ponnumani v. State of
 Mohd Redzuan Zakaria
[2020] MLRHU 1749 v. PP pg 11

Kerala [1987] (2) Ker LT 1042). Oath or affirmation shall be

made by all witnesses, the only exception being the case of a
child under 12 years of age where the Court is of the opinion
that though he understands the duty of speaking the truth he
does not understand oath or affirmation. If the Court is so
satisfied, oath will not be administered to the witness. The
evidence will nevertheless be admissible.

[29] In respect of the position of the child witness, PW2, I am of the

considered view that the questions posed by the learned Magistrate in his
attempt to ascertain whether PW2 understands the nature of an oath after the
initial questions by the learned DPP are sufficient in the circumstances.

[30] It is for the trial judge to make a finding as to whether he finds the child
witness understands the nature of an oath. And where it is demonstrated that
the finding made by the trial judge as to whether the child witness in fact
understands the nature of an oath is satisfactorily evidenced in the record of
proceedings, I am of the considered view that this Court, at the appellate stage,
should not substitute such a finding especially taking into consideration the
audio-visual advantage of the trial judge when the child witness was present
before him. Having had the audio-visual advantage of listening to and having
the child witness herself present before him, the learned Magistrate is in the
better position to make the evaluation and this Court should be slow to
intervene in that finding unless the finding is against the weight of the evidence
adduced in the inquiry.

[31] In the present appeal, the series of questions posed to PW2 by the learned
Magistrate were relevant questions meant to gauge whether PW2 in fact
understands the nature of an oath and I am of the considered view the learned
Magistrate had properly arrived at his findings that PW2 actually understood
the nature of an oath after carefully embarking on the exercise in that regard. I
am of the considered view that the finding made by the learned Magistrate in
this respect is well-founded and this Court has no cogent reasons to intervene
in that finding.

[32] The learned counsel attempts to capitalise on the argument that that PW2
herself could not exactly identify the location of the house of PW'3 husband
to-be whom PW2 referred to as her "uncle's" house from the photographs
shown to her. As such, the evidence of PW2 should not be given due weight as
she could not even remember or correctly identify a simple fact which goes
against the findings of the learned Magistrate that PW2 was able to
comprehend the nature of an oath.

[33] In this regard, when the whole of the evidence is considered in its totality,
I am of the considered view that the location of the house of PW'3 husband is
not material in the circumstances when juxtaposed with the question of
whether PW2 could actually understand the nature of an oath.

[34] On the question of corroboration, I must at the onset revert to the nature
of PW2's evidence for purposes of clarity. The evidence given by PW2 was not
 Mohd Redzuan Zakaria
pg 12 v. PP [2020] MLRHU 1749

one under s 133A of the Evidence Act 1950 which requires corroboration by
some other material evidence before a conviction may be sustained. PW2 gave
evidence under oath and the learned counsel has had the opportunity to cross-
examine PW2. The learned Magistrate too made a finding that despite being
cross-examined by the learned counsel, PW2 had confidently answered all the
questions in cross-examination without hesitation although at a very young
age. This has led to the learned Magistrate being able to place a high probative
value to the evidence given by PW2 as tested in cross-examination.

[35] Other than that, the evidence of PW3 which shows the sudden change of
attitude by PW2 especially when PW2 appeared fearful when being amongst
men. PW2 complained to PW3 that she felt pain on her private parts when
PW3 got home from the "pasar malam" trading on 10 February 2017. PW2
screamed in pain when PW3 took PW2 to the bathroom and applied soap on
her private parts in an attempt to wash her and when asked, PW2 told PW3
that the "ustaz" had touched her private parts when she was learning to recite
the holy Al-Quran with the "ustaz". Further, there was affirmative evidence to
show that the incident happened when PW2 was learning to recite the holy Al-
Quran with the "ustaz" and that lesson took place at the accused's house. Dr.
Muhammad Shihab bin Ismail (PW4) who examined PW2 on 10 February
2017 found red laceration marks on the private which looked fresh, estimated
to age between 24 hours to 48 hours. All these are crucial contemporaneous
evidence which must not be considered in isolation but must be properly
weighed in consideration of the evidence of PW2.

[36] On a re-evaluation of the whole of the evidence, I am of the considered

view that the prosecution has adduced sufficient evidence to establish a prima
facie case against the accused and that the decision of the learned Magistrate in
ordering the accused to enter his defence is good in law. I am also of the
considered view that there is no merit in the contention by the learned counsel
that an adverse inference should be invoked against the prosecution for its
failure to call the 2 brothers of the victim as witnesses. It is evident that there
was no challenge by the learned counsel in cross-examination of the
investigating officer (PW6) to drive home the point that the evidence of the 2
brothers are crucial or material in the unfolding of the narration of the
prosecution's case.

[37] In finding that the defence was not capable of raising a reasonable doubt
on the prosecution's case, after having scrutinized the line of questioning of the
learned counsel the learned Magistrate found that the accused has failed to put
across his defence during the prosecution's case when the prosecution's
witnesses were called. In respect of the defence, I am of the considered view
that the learned Magistrate had correctly described the defence as one of
afterthought. It is trite that the defence is under a duty to place his defence in
cross-examination at the earliest available opportunity during the prosecution's
case. There is also nothing to suggest that the learned counsel was refraining
from such challenge in cross-examination as a matter of design to bring it
within the exceptions of the principle in cross-examination.
 Mohd Redzuan Zakaria
[2020] MLRHU 1749 v. PP pg 13

[38] On a re-evaluation of the evidence in totality, I am of the considered view

that the prosecution has succeeded in proving its case against the accused
beyond a reasonable doubt and that the defence as put forth by the accused has
failed to raise a reasonable doubt in the prosecution's case. In the upshot, I
hereby dismiss the appeal against conviction and affirm the decision of the
learned Magistrate.

Sentence

[39] In considering appeals against sentence, it is well-established that the

principles relied upon by the appellate courts may be summarized as follows:

(a) the initial function of an appellate court in an appeal against

sentence is one of a review to ascertain if the sentence passed is one
which is in accordance with the law and established legal principles.
The question of whether the appellate court would have imposed a
different sentence if it were the court of first instance is not a relevant
consideration unless the sentencing court has erred in principle or had
imposed a sentence which is manifestly excessive or manifestly
inadequate;

(See: Public Prosecutor v. Sulaiman Ahmad [1992] 2 MLRH 420;

[1993] 1 MLJ 74; [1992] 3 CLJ (Rep) 447, Adam Atan v. PP [2008] 2
MLRA 600; [2009] 1 CLJ 33, PP v. Karthiselvam Vengatan [2009] 1
MLRA 702; [2011] 4 MLJ 212; [2009] 4 CLJ 632 and PP v.
Mohammad Yunus [2017] MLRAU 466; [2018] 2 CLJ 749 )

(b) in considering whether the sentence imposed is manifestly

excessive or inadequate, public interest must always be the first and
foremost consideration;

(See: Iwan Bujang Dara & Anor v. Public Prosecutor [2017] SSLR 1;
[2017] 3 MLJ 630 and Amir Hassan Ali Usin v. PP [2019] 2 SSLR 327;
[2018] 6 MLJ 421; [2019] 3 CLJ 325; [2018] 6 AMR 213.)

(c) in fixing the punishment for any particular crime, the court will
consider the nature of the offence, the circumstances under which it
was committed, the degree of deliberation shown by the offender, the
provocation which he has received if the crime is one of violence, the
antecedents of the prisoner up to the time of sentence, his age and
character;

(See: Mohamed Jusoh Abdullah and Another vs. PP [1947] 1 MLRA 67;
[1947] 13 MLJ 130 and Mohd Khir Toyo lwn. PP [2013] 5 MLRA 392;
[2013] 4 MLJ 801; [2013] 5 CLJ 323; [2013] 4 AMR 220.)

(d) a court should, when sentencing an accused, take into account all
considerations relevant to the case, including the gravity of the
offence, the circumstances surrounding the commission of the offence,
the antecedents of the accused, the deterrent effect that punishment is
 Mohd Redzuan Zakaria
pg 14 v. PP [2020] MLRHU 1749

to have, any factor that warrants special attention either in favour of or

against the accused and above all the public interest. Reasons must be
given for imposing a particular sentence to enable an appellate court to
ensure that there has been no error in principle;

(See: PP v. Tengku Mahmood Iskandar & Anor [1974] 1 MLRH 347;

[1974] 1 MLJ 110 and Lim Guan Eng v. PP & Other Appeals [1998] 1
MLRA 457; [1998] 3 MLJ 14; [1998] 3 CLJ 769; [1998] 3 AMR
2079.)

(e) there can be only general guidelines in sentencing. No two cases

can have exactly the same facts to the minutest detail. Facts do differ
from case to case and ultimately each case has to be decided on its
own merits. In practice, sentences do differ not only from case to case
but also from court to court. All things being equal these variations are
inevitable if only because of the human element involved. But, of
course, there must be limits to permissible variations.

(See: Public Prosecutor v. Loo Choon Fatt [1976] 1 MLRH 23; [1976] 2
MLJ 256 and PP v. Dato' Waad Mansor [2005] 1 MLRA 1; [2005] 2
MLJ 101; [2005] 1 CLJ 421; [2005] 1 AMR 509).

[40] Generally, an appellate court would be more readily intervene in the

sentence imposed by the trial court if it is satisfied that any of the following
four grounds are made out:

(a) the sentencing judge had made a wrong decision as to the proper
factual basis for the sentence;

(b) there had been an error on the part of the trial judge in appreciating
the material facts placed before him;

(c) the sentence was wrong in principle; or

(d) the sentence imposed was manifestly excessive or inadequate.

(See: PP v. Ling Leh Hoe [2015] MLRAU 138; [2015] 4 CLJ 869;
[2015] 5 AMR 325).

[41] In considering the discretionary powers of the court in determining the

length of a custodial sentence, there are several factors which must be taken
into account. These general principles were laid down by the apex Court in the
case of Mohd Abdullah Ang Swee Kang v. PP [1987] 1 MLRA 43; [1988] 1
MLJ 167; [1987] 2 CLJ (Rep) 405 and may be summarized as follows:

(a) the gravity of the offence;

(b) the facts in the commission of the offence;

 Mohd Redzuan Zakaria
[2020] MLRHU 1749 v. PP pg 15

(c) the presence or absence of mitigating factors; and

(d) the trend of sentencing policy, if any.

[42] On the issue of sentencing, it is trite that an appellate court would be

minded to intervene in the sentence imposed by the trial court if it is
manifestly inadequate or excessive, as the case may be. An accused convicted
of an offence under s 354 of the Penal Code may be sentenced with
imprisonment for a term which may extend to 10 years or with fine or with
whipping or with any two of such punishments.

[43] In considering the appropriate sentence to be meted out against the

accused, the trend of sentencing in similar cases as earlier decided by other
courts would serve as a useful guide as to the nature and length of the period
of incarceration to be imposed against a person convicted of a similar offence.
In making that consideration, it is also pertinent to bear in mind the
differentiating factors in the other cases to enable a suitable sentence to be
imposed, such as the value of the subject matter of the charge and the manner
the offence was committed to accord proportionality in sentencing.

[44] In considering the trend of sentencing, this Court made reference to the
following cases under s 354 of the Penal Code:

(a) In Abdul Majid Ahmad lwn. PP [2019] MLRHU 770, the sentence
of 12 months of imprisonment imposed by the learned Magistrate on a
charge under s 354 of the Penal Code committed against a child aged
14 years was affirmed by the High Court;

(b) In Mohamad Akhir Bakar lwn. PP [2019] MLRHU 4; [2019] 12

MLJ 597; [2019] 3 CLJ 399, the sentence of 10 months of
imprisonment imposed by the learned Magistrate on a charge under s
354 of the Penal Code committed by a teacher against his child
student was affirmed by the High Court;

(c) In PP lwn. Md Zaib Ahmad [2018] MLRHU 1443, the sentence of

12 months of imprisonment imposed by the learned Magistrate on a
charge under s 354 of the Penal Code committed by the accused
against his 13-year- old step-daughter was affirmed by the High Court;

(d) In Mohd Ikhsan Ramli v. PP [2018] MLRHU 1759, the High Court
affirmed the sentence of 2 years of imprisonment imposed by the
learned Magistrate on the accused for an offence under s 354 of the
Penal Code committed against a 24-year-old victim;

(e) In Samsudin Abdullah lwn. PP [2018] MLRHU 387, the High Court
substituted the sentence of 5 years of imprisonment imposed on the
accused by the learned Magistrate for an offence under s 354 of the
Penal Code committed against a child aged 3 years and 10 months
with a sentence of 3 years and 6 months of imprisonment;
 Mohd Redzuan Zakaria
pg 16 v. PP [2020] MLRHU 1749

(f) In PP lwn. Mohd Yunus Hassan [2017] MLRHU 832, the High
Court substituted the sentence of 1 day of imprisonment and a fine of
RM4,000.00 in default 12 months of imprisonment imposed on the
accused by the learned Magistrate for an offence under s 354 of the
Penal Code committed against a child aged 12 years old with a
sentence of 15 months of imprisonment; and

(g) In Bohari Amit v. PP [2006] 1 MLRH 7; [2005] 8 CLJ 43, the High
Court substituted the sentence of 7 years of imprisonment and 3
strokes of whipping imposed on the accused by the learned Magistrate
for an offence s 354 of the Penal Code committed against a child aged
7 years old with a sentence of 5 years of imprisonment and 1 stroke of
whipping.

[45] In the present appeal, other than the mitigating factors pertaining to the
offender as distinguished from mitigating factors in respect of the commission
of the offence itself, I am of the considered view that there was no strong
mitigating factor advanced by the learned counsel to outweigh the aggravating
facts as disclosed in evidence.

[46] In cases such as the present appeal where the despicable act was
committed by the accused who had misused the position of trust reposed on
him as an "ustaz" by taking advantage on a child aged 5 years and 11 months,
a clear warning must be sent out that public interest demands offenders like the
accused be dealt with by a rather long period of incarceration. I am of the
considered view that this Court ought to uphold public interest consideration
as paramount in cases involving child victims. Children are the future of the
nation and it is our bounden duty to protect their well-being. It is reasonable to
deduce that the emotional stress and mental injury suffered by the victim in the
present appeal may well outlive the period of imprisonment the accused is
subjected to and there is no telling when she will eventually recover from it.

[47] In the present case, I am of the considered view that the sentence imposed
by the learned Magistrate did not reflect the public abhorrence against offences
of this nature and not in consonant with the trend of sentencing for similar
offences and as such, it is manifestly inadequate. In the circumstances, I
hereby set aside the sentence of imprisonment imposed by the learned
Magistrate and substitute it with a sentence of 18 months imprisonment. The
sentence of imprisonment shall commence from the date of this judgment. The
sentence of fine of RM6,000.00 in default 6 months of imprisonment is upheld.