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IN THE HIGH COURT IN SABAH AND SARAWAK AT LABUAN

[CRIMINAL APPEAL NO. LBN-41S-2/10-2017]

BETWEEN

MOHD FAIRUZ AHMAD … APPELLANT

AND

PUBLIC PROSECUTOR … RESPONDENT

GROUNDS OF DECISION

Introduction

[1] On 9.10.2017, the Appellant was charged for an offence under

section 509 of the Penal Code (Act 574). It is an offence relating
to acts and conduct intending to insult the modesty of a person
or intruding the privacy of a person which I will go into the
details at the later part of my judgment.

[2] The Appellant was then self-represented. He pleaded guilty to

the charge after the charge and punishment under section 509 of
the Penal Code (Act 574) were read and explained to him.

[3] The learned Magistrate accepted the Appellant’s guilty plea.

After the Appellant admitted to the correctness of facts of the
case read and explained to him and admission of the documents
and photographs tendered by the prosecution as evidence, the
learned Magistrate convicted the Appellant of the offence as
charged and sentenced the Appellant to six (6) months

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imprisonment and a fine of RM5,000.00, in default two (2)

months imprisonment.

[4] By his counsel, the Appellant appealed to this Court against the
conviction and sentence imposed by the learned Magistrate.

[5] On 19.10.2017, the learned Magistrate granted a stay of

execution of the sentence pending appeal and the Appellant was
also granted bail of RM5,000.00 with two sureties which the
Appellant procured and who had signed bonds. The Appellant
was thus released on bail pending the appeal.

The Charge

[6] To protect the identity of the victim or main complainant in the

offence, I will not refer to her by her full name and reveal her
identity card number. Instead, I will refer to her as “Ms. N”.

[7] The charge against the Appellant in the Magistrates’ Court reads
as follows:

Bahawa kamu pada atau sekitar 10 haribulan september

tahun 2017 jam lebih kurang 12.45 tengah hari bertempat
di tandas awam perempuan aras 2 Lapangan Terbang
Labuan Wilayah Persekutuan Labuan, di dalam Wilayah
Persekutuan Labuan, dengan niat telah merakam video
untuk menceroboh hak persendirian XXXXXXXXXXX
KPT:XXXXXXXXXX (Ms. N) dan bahawa kamu adalah
dengan ini melakukan suatu kesalahan yang boleh dihukum
di bawah seksyen 509 Kanun Keseksaan. (Translated
version:

That you on or around 10 th day of September, 2017 at

about 12.45 in the afternoon at the women’s public toilet

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at level 2, of the Airport Labuan of Federal Territory of

Labuan, within the Federal Territory of Labuan, with
intend has recorded a video for intrusion of the privacy of
XXXXXXX KPT: XXXXXXXX and that you have thereby
committed an offence punishable under section 509 of the
Penal Code.)

[8] Based on the statement of the fact of the case tendered by the
prosecution and admitted by the Appellant (marked as exhibit P1
at page 16 of the Record of Appeal (Record of Appeal (RA)), on
10.9.2017 at around one hour passed mid-day, while Ms. N was
going to and intended to use the public toilet near ST2 Café at
level 2 of Labuan Airport, Ms. N realized that a man was
following her.

[9] In fright, she turned around and approached the police officer on
duty at Labuan Airport and informed of what she encountered.

[10] As there were many incidences of woman being peeped while

using the female toilet at Labuan Airport, Ms. N and the Police
officer worked out a plan to trap the man who might be engaging
in peeping women using the female toilet.

[11] Following the plan, Ms., N went into the female toilet near ST2
Café 2 at level of the Labuan Airport. Inside the toilet, Ms. N
poured tap water into the squatting toilet bowl instead and
sounding like she was micturating in the toilet.

[12] The Appellant was apprehended by the police officer when Ms.
N came out of the toilet. Upon checking the Appellant’s mobile
phone, it was revealed that there was a video recording of a
duration of 10 seconds of the act of Ms. N pouring tap water in
the squatting toilet bowl.

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[13] The Appellant not only admitted that he recorded the video of
Ms. N in the toilet, the Appellant also admitted that for a period
of over two (2) years, he had been carrying out video recording
of the acts of women urinating in the toilet. The Appellant said
that this was his habit or hobby and he said derived such self-
gratification from the recorded images of the female private
parts.

[14] The Prosecution has produced and tendered to the Court,

photographs of the scene of the general entrance to the public
toilet, the entrance to the female toilet, the scene inside the
female toilet and the scene of the female toilet that the
Appellant made the video recording after Ms. N went into toilet
that day. They showed an elevated squat toilet bowl having a
toilet door with a space or gap from the floor.

[15] The prosecution has also produced and tendered photographs

retrieved from the Appellant mobile phone and laptop and
screenshot of the Appellant’s laptop showing the images of the
faces of various women and images taken by camera through the
space or gap underneath the toilet door showing the female
private parts.

[16] The Prosecution has also produced and tendered to the Court,
several screenshots of the Appellant’s mobile phone showing
images taken by camera through the space or gap underneath the
toilet door showing seemingly a stream of water into the toilet.

[17] The Appellant admitted these photographs and they were

admitted as evidence and marked as exhibits (page 16 to 38 of
RA).

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Appellant’s grounds of appeal

[18] The Appellant grounds of appeal as stated in the Petition of

Appeal can be summarized as follows:

(a) The learned Magistrate erred in law and/or in fact in

accepting the Appellant’s guilty pleas because having
regards to the requirement and ingredients of section 509
of the Penal Code (Act 574), the facts do not disclose that
the Appellant had committed the offence, that is the
Appellant had not insulted the modesty of the complainant
concerned and neither did the Appellant intrude upon her
privacy;

(b) Had the learned Magistrate correctly applied her mind to

the charge under section 509 of the Penal Code (Act 574)
she would appreciate that the Appellant had not committed
any offence and as such the issue of sentence does not
arise; and

(c) In sentencing, the learned Magistrate erred in fact and/or

in law because:

(i) she considered there was an invasion of the privacy

of the complainant concerned when there was no in
fact;

(ii) the issue of the offence being serious or issue of

public policy does not arise as the Appellant had not
committed the said offence; and

(iii) The sentence is excessive, the Appellate Court ought

to interfere and impose only a bond of good
behaviour under section 173A of the Criminal
Procedure Code (Act 593).

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See: Appellant’s Petition of Appeal (Encl. 8).

[19] By the Appellant’s Petition of Appeal, the Appellant is vague as

to whether his appeal against conviction is on the basis that the
charge as framed did not disclose any offence under section 509
of the Penal Code (Act 574) or rather the fact of the case
tendered by the prosecution and admitted by the Appellant
(marked as exhibit P1 at page 16 of RA) had not established the
ingredients required of the offence under section 509 of the
Penal Code (Act 574).

[20] I am mindful of section 305 of the Criminal Procedure Code

(Act 593) which provides that:

“305. When plea of guilty limited right of appeal

When an accused person has pleaded guilty and been

convicted by a Magistrate on that plea, there shall be no
appeal except as to the extent or legality of the sentence. ”
(Emphasis added)

[21] An accused’s plea of guilty operates as a waiver of his right of

appeal against conviction and thus he is barred from appealing
against the legality of his conviction upon his own guilty plea
under section 305 of the Criminal Procedure Code (Act 593).
See: Gabriel v. Public Prosecutor [1992] 1 MLJ 593

[22] However, where an accused is convicted by the court upon the

accused’s guilty plea to a charge which creates no offence
known to law and the facts also disclose no offence, such a plea
is in fact no plea at all. This is because it is a plea to what is not
an offence and accordingly such a conviction could not be
allowed to stand and would be set aside. See: Sau Soo Kim v. PP
[1975] 2 MLJ 134 FC; Heng Kim Khoon v. PP [1972] 1 MLJ 30;

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Lo Kim Peng & ors v. PP [1979] 1 MLJ 249; and Periasamy &
Anor v. PP [1993] 2 MLJ 551.

[23] Similarly, where an accused pleaded guilty to a charge due to a

misconception of law or where the plea of guilty was obtained
improperly such as the safeguards as provided under section
173(b) of the Criminal Procedure Code (Act 593) were not
adhered to, the limitation provided in section 305 of the CPC is
not applicable.

[24] It is proper for the High Court, either in the exercise of its
appellate or revisionary jurisdiction, to correct any miscarriage
of justice arising therefrom. See: Mohd Dalhar bin Redzwan &
Anor v. Datuk Bandar, Dewan Bandaraya Kuala Lumpur [1995]
1 AMR 828; [1995] 1 MLJ 645 CA; Tang Kee Chie v. PP [1987]
1 MLJ 430; Ah Poon & Ors v. PP [2006] 5 CLJ 521; [2006] 3
AMR 772; Mohammad Hassan v. PP [1997] 1 CLJ Supp 485;
[1998] 5 MLJ 65 and Norshaharin v. PP [2002] 5 CLJ 492;
[2002] 1 AMR 634.

Appellant’s submission and contention

[25] The Appellant’s counsel did submit that the charge against the
Appellant was defective. He submitted that section 509 of the
Penal Code (Act 574) has two limbs which he categorized as
limb (a) and limb (b).

[26] He submitted that limb (a) consisted of “utters any word, makes
any sound or gesture, or exhibits any object, intending that such
word or sound shall be heard, or that such gesture or object shall
be seen by such person”. He contended that the elements of the
charge did not fall under limb (a).

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[27] He submitted that limb (b) consisted of “intrudes upon the

privacy of such person”. He submitted that the intrusion of
privacy in the charge was without those elements in limb (b). He
contended that the taking of video did not intrude upon the
privacy of the complainant concerned.

[28] He contended that the charge must be either limb (a) or limb (b)
and cannot be a mix of both which was confusing. Thus, he
contended that the charge against the Appellant was defective.

[29] Appellant’s counsel also submitted that there was no invasion or

intrusion of the privacy of the complainant concerned as she was
aware of the presence of the Appellant in taking the pictures of
her in the toilet and pouring or spraying tap water therein
pursuant to a trap she set up with the police.

[30] The Appellant’s counsel submitted that the act (pouring or

spraying tap water in the toilet) of the complainant concerned
was “completely innocuous”, she was ready and she could not
have been outraged or have her modesty insulted.

[31] In the premises, the Appellant’s counsel contended that the

conviction was bad, must be quashed and sentence set aside.

The prosecution’s submission and contention

[32] The Deputy Public Prosecutor submitted that under section 509
of the Penal Code (Act 574), whoever intrudes upon the privacy
of any person with the intention to insult the person’s modesty
commits an offence.

[33] She submitted that there was intrusion of the privacy of the
complainant concerned based on the admitted fact that the

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Appellant had followed the complainant concerned to the toilet

and thereafter recorded the complainant concerned in the toilet.

[34] She submitted that whatever the complainant concerned was

doing in the toilet was supposed to be private. The toilet is only
for women and the Appellant being a male was not supposed to
enter the toilet and the Appellant did so just for the purpose to
record the complainant in the toilet.

[35] She submitted that based the admitted fact by the Appellant that
it was his habit and hobby to record women in the toilet as he
was curious of their private parts and to satisfy his lust, the
Appellant’s intention in recording the complainant concerned in
the toilet was to outrage the complainant’s modesty.

Ingredients or elements to be established for an offence under

section 509 of Penal Code (Act 574)

[36] Section 509 of the Penal Code (Act 574) provides:

“Word or gesture intended to insult the modesty of a

person

509 Whoever, intending to insult the modesty of any

person, utters any word, makes any sound or gesture, or
exhibits any object, intending that such word or sound
shall be heard, or that such gesture or object shall be seen
by such person, or intrudes upon the privacy of such
person, shall be punished with imprisonment for a term
which may extend to five years or with fine or with both.”

[37] The offence under the section requires the following ingredients
or elements:

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(a) Intention to insult the modesty of a person.

(b) The insult must be caused:

(i) by uttering any word or making any sound or gesture,

or exhibiting any object intending that such word or
should shall be heard or that gesture or object shall
be seen by such woman, or

(ii) by intruding upon the privacy of such person

See: Ratanlal and Dhirajlal’s Law of Crimes, 28 Edn, Volume 3,

page 3590.

[38] Modesty is not defined under the Penal Code (Act 574). In Mrs.
Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill & Anr [1996]
AIR 309, 1995 SCC (6) 194, the Supreme Court of India was
called upon to construe the provision of section 509 of the
Indian Penal Code on insulting the modesty of a woman (similar
provision of section 509 of Indian Penal Code refers to “woman”
whereas our section 509 of the Penal Code (Act 574) refers to
“person” which is gender-neutral).

[39] After considering the dictionary meaning of “modesty” and

interpretation given to it in State of Punjab v. Major Singh
[1967] AIR 63, 1966 SCR (2) 286, the Supreme Court of India
held that “the ultimate test for ascertaining whether modesty
has been outraged is, is the action of the offender such as could
be perceived as one which is capable of shocking the sense of
decency of a woman”.

[40] The word used in section 509 of the Penal Code (Act 574) is
“insult” as contrasts with “outrage” under section 354 of the
Penal Code (Act 574).

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[41] “Insult” has been described by the Oxford Dictionary (5th Edn)
as scornful abuse; or an affront and by Cambridge Dictionary as
“an offensive remark or action”.

[42] In my judgment when the action of the offender is such as could

be perceived as capable of shocking the sense of decency of a
woman, the action would be perceived as insulting.

[43] In Swapna Barman vs. Subir Das [2004] 1 GLR 168, the High
Court of Gauhati held that the word “modesty” does not lead
only to the contemplation of sexual relationship of an indecent
character. Section 509 of the Indian Penal Code includes
indecency, but does not exclude all other acts falling short of
downright indecency. It was held that the act of the accused in
that case in entering the petitioner’s (complainant’s) house
compound at mid-night and uttering petitioner’s name in the
presence of her husband and coupling her name with the
accused’s name intended sufficient insult to disturb the modesty
of the petitioner.

[44] As to the “intention to insult”, whether the complainant

concerned did not feel or feel that his/her modesty had been
outraged or insulted is not really relevant and decisive. The
sense of modesty of persons varies and would not be known to
the others. If the test whether the modesty of a person was
outraged or insulted was to be based on the reaction of that
person, it would have to be proved that the offender knew the
standard of the modesty of the person concerned, otherwise it
could not be proved that the offender intended to insult that
person’s modesty. This would be impossible to prove in most
cases.

[45] Intention being the state of mind that cannot be proved by direct
evidence and can only be inferred from the fact and the

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circumstances of the case. Inference could only be made if a

reasonable person would on the facts and circumstances of the
case made the inference.

[46] In my judgment, the test is what a reasonable person thinks of

the intention of the offender by his action and having regards to
the fact in the circumstances. See: State of Punjab v. Major
Singh [1967] AIR 63, 1966 SCR (2) 286 and Mrs. Rupan Deol
Bajaj & Anr vs Kanwar Pal Singh Gill & Anr [1996] AIR 309,
1995 SCC (6) 194.

[47] Section 509 of the Penal Code (Act 574) is intended to deter any
sort of aggression into a person’s modesty whether by word,
deed or act. It does not require the person, whose modesty it is
intended to insult, to have either heard the word or seen the
action.

See: Ratanlal and Dhirajlal’s Law of Crimes, 28 Edn, Volume 3,

page 3590.

Is the charge defective for lack ingredient or elements on “intention

to insult the modesty of a person” on the part of the Appellant?

[48] Though the charge did not use the words “intending to insult the
modesty” of Ms. N under section 509 of the Penal Code (Act
574), it did set out and described the acts of the Appellant as
intentional in recording a video in the women’s public toilet for
intrusion of the privacy of Ms. N. and the offence under the
section (“di tandas awam perempuan aras 2 Lapangan Terbang
Labuan Wilayah Persekutuan Labuan, di dalam Wilayah
Persekutuan Labuan, dengan niat telah merakam video untuk
menceroboh hak persendirian”).

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[49] The overt acts of the Appellant as set out and described in the
charge as framed carries the ingredients of “intending to insult
the modesty” and “intruding the privacy” of Ms. N on the
Appellant’s part.

[50] It is not mandatory that a complete definition of the offence

under section 509 of the Penal Code (Act 574) should be set out
in the charge. See: Krishnan & Anor v. Public Prosecutor [1981]
2 MLJ 121 FC.

[51] It was held in Sohanlal Nayak & 3 ors v. The State of Orissa,
[1973] Cut LTR 1037 that:

“(ii) by intruding upon the privacy of such woman. The

intention to insult the modesty of a woman is the essential
ingredient of the offence. So, if the Court, on a
consideration of the evidence on record in its entirety and
the overall facts and circumstances of the case disclosed
therefrom, arrives at the finding that the accused had the
aforesaid intention, and for that he said something or
uttered some words, it can justly hold the accused guilty
under Section 509, Indian Penal Code, no matter the exact
words uttered by the accused were not placed on
record….”

[52] Having considered the provisions under section 152 to 156 of

the Criminal Procedures Code (Act 593), the charge as framed in
this case against the Appellant has sufficiently set out the
matters constituting the ingredients or elements of the offence
under section 509 of the Penal Code (Act 574), though it may be
preferable that the overt act of the Appellant as set out in the
charge were described in the same language or wording of any
statutory provision creating an offence.

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Whether all ingredients and elements of the offence have been

established by the facts as admitted by the Appellant?

[53] It is an admitted fact that the Appellant, a male person had gone
into the women’s public toilet and through the gap beneath the
closed toilet door recorded a video of Ms. N. while she was in
the toilet.

[54] The Appellant being a male person was not supposed to be in

women’s toilet and he has not given any legitimate explanations
why he was there and for his actions in there.

[55] Any reasonable person with a decent state of mind and civility
would not have perceived such actions of the Appellant and
intention of the Appellant in the circumstances as “so innocuous
and benign” as contended by the Appellant’s counsel other than
for sinister motives.

[56] Further, the Appellant himself admitted that for a period of over
two (2) years, he had been carrying out video recording of the
woman using the toilet and keeping the recorded images of the
female private parts for his habit or hobby and for his perverse
satisfaction.

[57] It is absurd for the Appellant’s counsel to contend that the

Appellant’s intention and actions concerned were “innocuous
and benign” just because Ms. N merely sprayed or poured water
in the toilet instead of actually exposing herself in carrying out
her personal act of micturating and that the Appellant did not
manage to record the video of Ms. N the way that the Appellant
so perversely desired to see and keep.

[58] Regardless of what Ms. N did in the toilet at the material times,
the actions of the Appellant and his intention are such that a

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reasonable person would perceive as shocking and affront to the

sense of decency for a person, particularly of a woman.

[59] In my judgment, by the very conducts and actions of the

Appellant in the circumstances, clearly the Appellant had the
culpable intention to insult the modesty of Ms. N.

[60] Thus, there is no basis to contend that the ingredient or element

for the offence in respect of intention to insult the modesty of
the Ms. N. has not been established by the admitted facts.

[61] In respect of the required ingredient or element of the offence

for intrusion upon the privacy of Ms. N by the Appellant, it is
inconceivable that the very actions of the Appellant in video
recording Ms. N in a toilet could not reasonably be perceived as
not intruding upon the privacy of Ms. N.

[62] I do not agree with the submission of the Appellant’s counsel

that there was no intrusion of the privacy of Ms. N merely
because the Appellant did not manage to video recorded the
private parts of the body of Ms. N as the Appellant desired.

[63] I also find it absurd in the suggestion that there was only
privacy right for Ms. N. to claim while she had her private part
of her body exposed in the toilet and that there was intrusion of
her privacy only when the Appellant managed to video record
her so exposed herself in the toilet.

[64] Section 509 of the Penal Code (Act 574) is directed at

criminalizing and punishing “word, sound or gesture, or object
exhibited, or intrusion of privacy” by an offender intended at
insulting the modesty of a person. See: Khushboo vs
Kanniammal & Anr [2010] AIR SC 3196 and Abhijeet J.K. v.
State of Kerala 2020 (2) KLT 123.

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[65] In my judgment, it does not matter what Ms. N did in the toilet
with the door closed and whether it was in pursuance to a trap
and that Ms. N did not expose her private body parts in the toilet
and that Ms. N knew the presence of the Appellant and that Ms.
N knew that the Appellant was video recording her in the toilet.

[66] The culpable intention of the Appellant is the crux of the matter.
In State of Punjab v. Major Singh [1967] AIR 63, 1966 SCR (2)
286, Mudholkar J of the Supreme Court of India held that:

“The Code does not define “modesty”. What then is a

woman’s modesty? I think that the essence of a woman ’s
modesty is her sex. The modesty of an adult female is writ
large on her body. Young or old, intelligent or imbecile,
awake or sleeping, the woman possesses a modesty
capable of being outraged. Whoever uses criminal force to
her with intent to outrage her modesty commits an offence
punishable under s. 354. The culpable intention of the
accused is the crux of the matter. The reaction of the
woman is very relevant, but its absence is not always
decisive, as, for example, when the accused with a corrupt
mind stealthily touches the flesh of a sleeping woman. She
may be an idiot, she may be under the spell of anesthesia,
she may be sleeping, she may be unable to appreciate the
significance of the act; nevertheless, the offender is
punishable under the section.” (Emphasis added).

[67] In Mrs. Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill &
Anr [1996] AIR 309, 1995 SCC (6) 194, Mukherjee M.K. (J)
delivered the ruling of the Supreme Court of India held that:

“It is undoubtedly correct that if intention or knowledge is

one of the ingredients of any offence, it has got to be
proved like other ingredients for convicting a person. But,

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it is also equally true that those ingredients being states of

mind may not be proved by direct evidence and may have
to be inferred from the attending circumstances of a given
case. Since, however, in the instant case we are only at the
incipient stage we have to ascertain, only prima facie,
whether Mr. Gill by slapping Mrs. Bajaj o n her posterior,
in the background detailed by her in the FIR, intended to
outrage or knew it to be likely that he would thereby
outrage her modesty, which is one of the essential
ingredients of Section 354 IPC. The sequence of events
which we have detailed earlier indicates that the slapping
was the finale to the earlier overtures of Mr. Gill, which
considered together, persuade us to hold that he had the
requisite culpable intention. Even if we had presumed he
had no such intention he must be attributed with such
knowledge, as the alleged act was committed by him in the
presence of a gathering comprising the elite of the society
- as the names and designations of the people given in the
FIR indicate. While on this point we may also mention that
there is nothing in the FIR to indicate, even remotely, that
the indecent act was committed by Mr. Gill, accidentally
or by mistake or it was a slip. For the reasons aforesaid, it
must also be said that, - apart from the offence under
Section 354 IPC - an offence under Section 509 IPC has
been made out on the allegations contained in the FIR as
the words used and gestures made by Mr. Gill were
intended to insult the modesty of Mrs. Bajaj. ” (Emphasis
added)

[68] Whenever a person goes into a toilet with the door closed and
engages in any acts in the toilet, it is reasonable to or a
reasonable person would perceive that she/he intends the acts

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carried out in the toilet to be private and that she/he is not being
observed in the toilet, regardless whether she/he has exposed the
private part of the human body in the toilet.

[69] In Emperor vs Tarak Das Gupta, AIR [1926] Bom 159, the
accused, a university graduate sent by post to the complainant,
an English nurse, a letter containing indecent overtures and
suggesting that the complainant should take certain action in
order to show whether she accepted the terms mentioned in this
letter. The complainant went to the Police, and in consequence
of what they did, the accused was found to be the person who
had sent the letter. It was held that in the circumstances what the
accused did by posting to her the letter falls within the purview
of section 509 of the Indian Penal Code.

[70] Ratanlal and Dhirajlal’s Law of Crimes, 28 Edn, Volume 3, page

3592, cited the fact and decision in case of Mahamad Kassam
Chisty (1911) Criminal Appeal No. 454 of 1910 as follows:

“The accused followed in his carriage the complaint ’s

unmarried daughter at various places, and laughed and
grinned and stared at her while passing and repassing in
his carriage, and stood up in it and shouted her name and
so on. He was convicted under this section, and the High
Court in confirming the conviction, observed: “We do not
think it proper to draw subtle distinctions to show that
these acts do not amount to outraging the modesty of a
woman and encroaching upon her privacy. Especially in
this country, where women are trying to come out in
public, it would be making a farce of the law, if we were to
say that the conduct of the appellant did not amount to an
offence and that the Magistrate has taken an incorrect
view of the section of the Indian Penal Code under which

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the accused had been convicted and sentenced….”

(Emphasis added)

[71] There is nothing in these decided cases that at the time of the
intrusion by the assailant, any private part of the victim’s body
must be exposed to constitute intrusion of the privacy and insult
to modesty of the victim.

[72] There is no reason women in our country should be accorded

with the level of modesty and decency lower than those in India.

[73] The submission of the Appellant’s counsel amounted to say that

in order for a women’s privacy to be capable of being intruded
or their modesty to be capable of being insulted by an assailant
under the section 509 of the Penal Code (Act 574), the women in
this country would have to have their private parts of their body
exposed at the material times of their complaint. I reject the
submission altogether.

[74] Making a video recording through the gap below the toilet door
on whoever and whatever the person in the toilet was doing with
the toilet closed door is clear intrusion of the person’s privacy
and the overt acts in so making the video recording in the
circumstances evinced a clear intention to insult the modesty of
the person in the toilet. It is no defence for the invasion or
transgression of her/his privacy by saying that the person knew
that she/he is being observed therein and ready to be video
recorded.

[75] What the plan as formulated by Ms. N and the police did is no
more than giving the Appellant the opportunity to carry out his
culpable intent to commit the crime.

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[76] Based on the facts as admitted by the Appellant, he cannot be

said to be “unwary innocent”. He was indeed an “unwary
criminal”.

[77] The Appellant had the sinister intent while following Ms. N in
going into the women’s public toilet to commit the offence. See:
Wan Mohd Azman bin Hassan @ Wan Ali v. PP [2010] 4 MLJ
141, FC; and Public Prosecutor v. Mohd Razali bin Zakariya
[2018] 3 MLJ 34, CA.

Sentence excessive?

[78] In respect of the Appellant’s appeal against sentence,

Appellant’s counsel made no submission on why the sentence as
imposed by the learned Magistrate upon the Appellant is
excessive. He provided no basis on why only a bond of good
behaviour under section 173A of the Criminal Procedure Code
(Act 593) should be imposed upon the Appellant for the offence
he committed.

[79] Section 509 of the Penal Code (Act 574) prescribed

imprisonment of up to a maximum term of 5 years, or with fine,
or with both for a person convicted of the offence thereunder.

[80] Upon conviction of accused, the learned Magistrate has a

discretionary power on the amount of punishment to be imposed
within the limit of the law in sentencing having regards to the
facts and circumstances of the case. Such discretionary power
has to be exercised in accordance with the established principle.

[81] In Victor Chidiebere Nzomiwu & Ors v. PP [2013] 2 MLJ 690,

CA (at para 85), the Court of Appeal held that the first and
foremost consideration in sentencing is the protection of public
interest. The protection of public interest required the

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imposition of appropriate sentence taking into account any

mitigating factors to deter and prevent the commission of the
crime.

[82] The sentence imposed must also reflect the gravity of the
offence and should be proportionate to the offence committed.
See: Kesavan a/l Baskaran v. PP [2009] 1 AMR 709, CA and PP
v. Abdul Halim bin Abd Samat [2014] 6 MLJ 144, CA

[83] An appellate court will not normally alter the sentence passed by
the lower court unless it is satisfied that such sentence passed is
manifestly inadequate or excessive or illegal or otherwise not a
proper sentence having regard to all the facts disclosed or that
the court has clearly erred in applying correct principles in the
assessment of sentence or irrelevant factors were taken into
consideration while relevant factors ignored or insufficient or
undue weight had been given to some of the proved facts.. See:
Dato’ Seri Anwar bin Ibrahim v. PP [2002] 3 MLJ 193, FC; PP
v. Dato’ Waad bin Mansor [2005] 2 MLJ 101, FC and S
Samdaran a/l Sivasamy v. PP [2015] 2 MLRA 77, CA.

[84] By her written judgment, the learned Magistrate has taken into
consideration the fact that the appellant had committed the
offence in the women’s public toilet at Labuan Airport during
broad daylight, it was an invasion of one’s privacy and the fear
inflicted upon Ms. N. The learned Magistrate has indeed taken
into account the interest of public, the seriousness of the offence
and the need for deterrent sentence.

[85] The learned Magistrate has also considered the Appellant’s

guilty plea which it seems to me that the learned Magistrate has
not given much weight. The learned Magistrate has not erred in
doing so as the Appellant’s guilty has little or no mitigation
value as Appellant was caught red-handed after committing the

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offence. See: Public Prosecutor v. Mohd Musa Bin Ahmad

[2013] 8 MLJ 466 and Wong Kai Chuen Philip v. Public
Prosecutor [1991] 1 MLJ 321

[86] The learned Magistrate has also taken into account the plea of
the Appellant that he was remorseful, his plea for only a fine
sentence to be imposed and his fear of losing his job against the
facts that the Appellant had engaged in such deviant conduct and
operandi for a period of over two years with all the images and
videos of the victims the Appellant have taken and stored in his
handphone and laptop to satisfied his perverse desire until he
was caught for his offence as charged. The learned Magistrate
found that imposing only a fine upon the Appellant was absurd.

[87] The learned Magistrate has not erred in taking account that the
Appellant had video recorded the private moments of other
women in the toilet for over two years until he was caught. Not
much weight should be given to his plea that he was remorse for
offence committed and as charged for the reason that he was
caught red-handed. The Appellant said that he was remorseful
most probably because he was caught for his perverse actions.
His instant appeal against his conviction based on his own guilty
plea showed that he is not truly remorseful for his perverse
actions.

[88] This is not a case of simple peeping offence. There are

aggravating factors. There was some degree of planning on the
part of the Appellant using handphone to video record the
victims’ private moments in the toilet and storing them in the
Appellant’s laptop as Appellant’s collections which could be
replayed over and over again. There was also a risk of
circulation of these images to other third parties. See: Public
Prosecutor v. Tay Beng Guan Albert [2000] 3 SLR 785 and

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Pendakwa Raya lwn Nor Hanizam bin Mohd Noor [2019] MLJU
638

[89] Women should have the confidence and feel secured that their
private moments will not be observed while using and in the
women’s public toilet.

[90] For the protection of the public interest, there is a need to

impose a custodial sentence upon the Appellant to make clear
that the Court abhors such behavours or would not treat it
lightly so as to deter any such behaviours.

[91] A fine would not serve the purpose and would give an
impression that such perverse behaviours and conducts for
which the Appellant has been convicted of the offence is trivial.
A mere fine imposed would also encourage corruption of mind
of the would be offender to make-believe that he/she can buy
out of such offence when caught.

[92] There is no basis to impose upon the Appellant only a bond of

good behaviour under section 173A of the Criminal Procedure
Code (Act 593). I do not think any order under the section is
appropriate having regards to the nature of the offence
committed by the Appellant for the reasons I have given earlier.

[93] In the premises, I do not find any flaw in the assessment by the
learned Magistrates of the sentence imposed upon the Appellant,
and neither do I find the sentence meted out by the learned
Magistrate upon conviction of the Appellant excessive.

Conclusion

[94] For the reasons I have given, I find no appealable errors that
warrant appellate interference in the decisions of the Learned

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Magistrate in convicting the Appellant and the sentence

imposed.

[95] Therefore, I dismiss the Appellant’s appeal against both the

conviction and sentence and affirmed the decisions of the
Learned Magistrate.

Dated : 3 NOVEMBER 2021

Date of delivery of Decision : 3 NOVEMBER 2021

Date of Decision : 6 JANUARY 2021

(WONG SIONG TUNG)

Judicial Commissioner
High Court
Labuan

COUNSEL:

For the appellant - K Rakhbir Singh; M/s Rakhbir Singh & Co

For the respondent - Nartiah F Mirchelle Sambatan; Deputy Public

Prosecutor Sabah

Case(s) referred to:

Gabriel v. Public Prosecutor [1992] 1 MLJ 593

Sau Soo Kim v. PP [1975] 2 MLJ 134 FC

Heng Kim Khoon v. PP [1972] 1 MLJ 30

Lo Kim Peng & ors v. PP [1979] 1 MLJ 249

Periasamy & Anor v. PP [1993] 2 MLJ 551

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Mohd Dalhar bin Redzwan & Anor v. Datuk Bandar, Dewan
Bandaraya Kuala Lumpur [1995] 1 AMR 828; [1995] 1 MLJ 645 CA

Tang Kee Chie v. PP [1987] 1 MLJ 430; Ah Poon & Ors v. PP

[2006] 5 CLJ 521; [2006] 3 AMR 772

Mohammad Hassan v. PP [1997] 1 CLJ Supp 485; [1998] 5 MLJ 65

Norshaharin v. PP [2002] 5 CLJ 492; [2002] 1 AMR 634

Mrs. Rupan Deol Bajaj & Anr vs. Kanwar Pal Singh Gill & Anr
[1996] AIR 309, 1995 SCC (6) 194

State of Punjab v. Major Singh [1967] AIR 63, 1966 SCR (2) 286

Swapna Barman vs. Subir Das [2004] 1 GLR 168

Krishnan & Anor v. Public Prosecutor [1981] 2 MLJ 121 FC

Sohanlal Nayak & 3 ors v. The State of Orissa, [1973] Cut LTR
1037

Khushboo vs. Kanniammal & Anr [2010] AIR SC 3196

Abhijeet J.K. v. State of Kerala 2020 (2) KLT 123

Emperor vs. Tarak Das Gupta, AIR [1 926] Bom 159

Wan Mohd Azman bin Hassan @ Wan Ali v. PP [2010] 4 MLJ 141,
FC

Public Prosecutor v. Mohd Razali bin Zakariya [2018] 3 MLJ 34,

CA

Victor Chidiebere Nzomiwu & Ors v. PP [2013] 2 MLJ 690, CA (at

para 85)

Kesavan a/l Baskaran v. PP [2009] 1 AMR 70 9, CA and

PP v. Abdul Halim bin Abd Samat [2014] 6 MLJ 144, CA

Dato’ Seri Anwar bin Ibrahim v. PP [2002] 3 MLJ 193, FC

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PP v. Dato’ Waad bin Mansor [2005] 2 MLJ 101, FC

S Samdaran a/l Sivasamy v. PP [2015] 2 MLRA 77, CA

Public Prosecutor v. Mohd Musa Bin Ah mad [2013] 8 MLJ 466

Wong Kai Chuen Philip v. Public Prosecutor [1991] 1 MLJ 321

Public Prosecutor v. Tay Beng Guan Albert [2000] 3 SLR 785

Pendakwa Raya lwn. Nor Hanizam bin Mohd Noor [2019] MLJU
638

Legislation referred to:

Penal Code, ss. 354, 509

Criminal Procedures Code, ss. 152, 156, 173 (b), 173A, 305

Others referred to:

Ratanlal and Dhirajlal’s Law of Crimes, 28 Edn, Volume 3, page

3590, page 3592

Notice: This copy of the Court ’s Grounds of Decision is subject to

amendment and editorial revision.

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