Moses Susayan JC:

Introduction

[1] This is the judgment of this Court on the consolidated criminal appeals filed by the appellant, Asihar bin Kamaruddin, against the conviction and sentence, and appeal by the prosecution on sentence, imposed by the learned Sessions Court Judge in Teluk Intan in Case No AC-62JSK-26-12/2022 and AC-62JSK-27-12/2022. The appellant was convicted under s 14(a) of the Sexual Offences Against Children Act 2017 ("Act 792") for acts of physical sexual assault against his niece, a child aged 17 years and 10 months at the material time.

[2] The crux of the appeal lies in the appellant's assertion that the trial Court had misdirected itself in rejecting his defence on the erroneous basis that the defence was not put during the prosecution stage, despite there being clear evidence that the defence had indeed been put to the prosecution's witnesses, including the complainant (SP3).

The Charges

[3] The preferred charges against the appellants in the Sessions Court were as follows:

"Case AC-62JSK-26-12/2022:

1st Charge

Tarikh: 8 August 2022

Masa: Antara jam 5.00 AM hingga 5.10 AM Tempat:

XYZ. Seksyen: 14(a) Akta 792

Cara: Memeluk belakang badan mangsa

Hukuman:

3 tahun