LAD4223

MOOT

THE MOOT PROBLEM

INSTRUCTOR:
DR. FAREED MOHD HASSAN

FACULTY OF SYARIAH AND LAW

UNIVERSITI SAINS ISLAM MALAYSIA
SEMESTER I
2023/2024
 IN THE COURT OF APPEAL AT PUTRAJAYA
CRIMINAL APPEAL NO. B-03-10 OF 2022

BETWEEN

ABDUL HADI BIN KAMARULZAMAN APPELLANT

PUBLIC PROSECUTOR RESPONDENT

BACKGROUND FACTS:

1. The victim, Kusmawati was a 70-year-old female rubber tapper who lives in
Kuala Selangor, Selangor at the time of the alleged rapes. On 9 April 2022 during
the first week of Ramadhan (the first incident), she arrived at her estate at about
6.30 am after “sahur” and “subuh” prayer for her usual routine as rubber tapper
alone, while her 73-year-old husband, Pak Rostam, was at the nearby mosque for
the “subuh” prayer. As she was placing her bicycle at a small hut within the estate,
someone with a man figure approached her from the back and covered her face.
The man then closed her mouth with one of his hands and then with the other
hand, pulled her hand to her back and pushed her into the bushes.

2. As she fell down, the man then used his knee to push against her body before
removing her old and stinky pants and undergarments which were normally used
during her rubber tapping. He then proceeded to punch Kusmawati on her face,
kissed her and subsequently used cucumber and brinjal brought by him into
Kusmawati’s genitals. At that time, she could see the man’s figure because of his
small body size and fair skin and as the man did all these to her, his face was
facing her with the moonlight and as it was about to sunrise. After the man got
up, she could feel something liquid at her private part before the man ran away.
After a while, her husband arrived and saw that she was sobbing and in pain as
her private part bled. He consoled her and wanted to bring her to the police station
but she refused as she was too embarrassed and felt that she would be a laughing

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 stock if people were to come to knowledge of what had happened to her. As she
was reluctant and refused to lodge a police report, Pak Rostam took her home.

3. On 11 April 2022 (the second incident), when Kusmawati was still traumatised
and in pain due to the first incident, she and Pak Rostam went back to their estate
tapping the rubber at the same time when she was first raped. While tapping the
rubber, the man came back but this time around, the man carried a big piece of
wood and he then tried to instil fear in an old and physically weak Pak Rostam by
chasing and threatening to hit him with such a piece of wood. As he was unable
to fight back, Pak Rostam ran towards Kusmawati to escape the man. The man
gave chase but upon seeing Kusmawati, he dragged her into the bushes. She tried
to fight the man using her rubber-tapping knife but the man then took her rubber-
tapping knife and removed the rubber scrap container that was tied to her body
before proceeding to rape her.

4. Although at the time of the rape took place was still at dawn time, Kusmawati
could still recognise the same figure through the man shadowy glimpse wearing
a red t-shirt who had raped her before as she could see that the accused walked in
the same particular manner the rapist had walked. During the second incident, the
Appellant misled Kusmawati by claiming that he was a Bangladeshi and via his
accent when he said “adek (adik) manis…diam jangan melawan sayyaaa
(saya)!”. After about six to seven minutes, she saw the man ejaculating his
seminal fluid onto the bushes and wiping away his genitalia using Kusmawati’s
‘kain batik sarong’ and t-shirt. Her husband, who was at the scene, witnessed the
second incident of rape with his own bare eyes but was helpless and unable to
help his beloved old wife as he was physically no match against the man. Again,
after the rape, the man walked off.

5. On the same day, the Appellant met his best friend Amir at a coffee shop nearby
Kusmawati’s house and proudly told him that he had played (“main”) with an old
lady as he did the last time, with the afterglow effect showing on his face. As
Kusmawati was crying hopelessly due to the first and the second incidents, Pak
Rostam urged his wife not to cry but instead to try to remember her assailant and
rapist. Although she obeyed him, they once again went home without making any

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 police report due to the same reasons. The next day after Zuhr prayer, their only
son, Kamal came home for holiday and Hari Raya celebration. It was at that time
that Kusmawati recounted those two incidents of rape to him. Feeling angry and
sad, he then took her to the police station and in her police report, she said the
person who raped her on 11 April 2022 was a Bangladeshi who wore a red t-shirt.

6. Later, on the same day of 12 April 2022, Dr. Sharifah (an Obstetrics and
Gynaecology specialist), the doctor who examined Kusmawati confirmed in her
medical report that she found on Kusmawati’s genitalia old tears of more than 72
hours at 6 O’clock and 7 O’clock positions on the hymen which were caused by
blunt objects, which could also include a male phallus. Moreover, fresh bruises
and pete chine (dots of broken vessels) were also found at the perineum and
fourchette on the part outside the vagina. In her medical report, Dr. Sharifah also
stated that Kusmawati told her that she was raped by a Bangladeshi man.

7. However, when the police conducted investigations after the police report was
lodged, it turned out that Kusmawati’s assailant and rapist was not a Bangladeshi
but the Appellant, a local guy instead. This was based on the identification parade
(the parade) conducted by the police, in which the participants of the parade were
made up of members of the public, including the Appellant who was passing by
at a coffee shop nearby the victim’s address and from the lockup based on her
physical description. During the parade, Kusmawati stopped in front of the
Appellant and picked him up as she positively and affirmatively identified that: -

a) the Appellant was wearing a red t-shirt at the time the parade was held, while
the rest of the participants were not, the same red t-shirt Kusmawati’s
assailant and rapist was wearing during the second incident of rape on 11
April 2022;

b) the Appellant’s eyes as his eyes had peculiar characteristics with both the
corneas were said to have double lines; and

c) the Appellant’s muscular hands with fair skin, the fairest among all the
participants in the parade.

8. Moreover, Dr. Hamizah (a Science Officer from the Malaysian Department of

Chemistry) took 6 swab samples from Kusmawati’s vagina and the seminal fluid

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 found on her ‘kain batik sarong’ and t-shirt to be analysed for Deoxyribonucleic
Acid (DNA). She confirmed that the seminal fluid on Kusmawati’s ‘kain batik
sarong’ and t-shirt which she wore during the alleged second rape matched with
the DNA profile of the Appellant’s blood specimen sample. However, the
Appellant’s DNA was not found on the 6 swabs taken from Kusmawati’s vagina.
Dr. Hamizah was of the opinion that the Appellant might have ejaculated outside
the vagina and onto her body since the seminal fluid was found on Kusmawati’s
‘kain batik sarong’ and t-shirt instead inside of her vagina.

9. The Appellant was then arrested and charged before the Sessions Court for two
charges of rape which took place on 9 April 2022 and 11 April 2022 under Section
376 of the Penal Code [Act 574].

AT THE TRIAL BEFORE THE SESSIONS COURT:

10. Although Pak Rostam was unable to identify Kusmawati’s assailant and rapist,
he testified as one of the witnesses who had witnessed the second incident of rape.
According to him, the Appellant was the same person as described by his wife to
him when they went home after the first incident on 9 April 2022, although she
had admitted that she was not too sure of the identity of the accused in the first
incident as the rape was so sudden and unexpected. Nonetheless, Kusmawati was
able to identify the Appellant by his eyes, body figure, the manner in which he
walked in both incidents of rape and the same red t-shirt he wore during the
second incident. These were further corroborated by the medical report based on
the examination conducted by Dr. Sharifah, as well as the DNA test result on
Kusmawati’s ‘kain batik sarong’ and t-shirt conducted by Dr. Hamizah.

11. The defence was called in respect of both rape charges and at the conclusion of
the trial, the Trial Judge found the Appellant guilty and convicted him for both
charges of rape. The Appellant was sentenced to 8 years of imprisonment and six
strokes of whipping for each charge and the punishments to run concurrently.
Dissatisfied with the convictions and sentences, the Appellant then appealed to
the High Court.

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ON APPEAL BEFORE THE HIGH COURT:

12. The High Court upheld the findings of the Trial Court. Dissatisfied with the same
findings, the Appellant then appealed to the Court of Appeal.

GROUNDS OF APPEAL AND ISSUES BEFORE THIS HONOURABLE COURT:

(i) Whether both the Trial and the High Court judges erred in law in finding the guilt
of the Appellant for the first incident on 9 April 2022 since rape was never
happened as it was never been mentioned by the victim in the police report?

(ii) Whether both the Trial and the High Court judges erred in law in finding the guilt
of the Appellant for the second incident of rape on 11 April 2022 since there were
contradictions between the police report, the medical report by the Obstetrics and
Gynaecology specialist as well as the parade conducted by the police on the
Appellant’s identity being the victim’s rapist?