Possession of child pornography is a serious offense requiring substantial penalties to uphold public interest and protect vulnerable children, as established under the Sexual Offences Against Children Act 2017.

Introduction

[1] The Respondent was charged in the Magistrate Court for having possession a blue Vivo brand handphone which contained child pornography under s 10 of the Sexual Offences Against Children 2017 (Act 792) ("SOACA"). The charge preferred against him is as follows:

"Thay you, om 30 October 2023, at about 8.30pm, on the roadside, in front of Balai Bomba Samalaju, in the District of Bintulu, in the State of Sarawak, was found having in your possession a blue brand handphone which contained child pornography, and you have thereby committed an offence punishable under s 10 of the Sexual Offences Against Children Act 2017.

[2] On the 26 March 2025, the Respondent pleaded guilty to the charge and was sentence to a fine of RM5,000.00 in default 12 months imprisonment.

[3] Dissatisfied, the Public Prosecutor / Appellant now appeal against sentence.

Brief Facts Of The Case

[4] The brief facts as narrated by the Appellant are that on 31 October 2023 at about 8.30 pm, upon receiving information regarding child pornography use, the complainant/arresting officer Inspector Askandal bin Madin and his team had arrested the Respondent at the roadside in front of Balai Bomba Samalaju Bintulu, 97000 Bintulu, Sarawak.

[5] The police had examined the Respondent's handphone and found that there were child pornography materials in the said handphone. The Respondent was then arrested and the handphone was also seized. A report was lodged by Inspector Askandal bin Madin.

[6] Subsequently, the said handphone had been sent to Unit Siasatan Jenayah Komputer, Makmal Forensik PDRM for analysis. Based on the report prepared by the Forensic Officer, Inspector Fadzalziz bin Japri, it was found that the said handphone did contain 114 pornography videos involving adults and children.

[7] Following the outcome of police investigation, the Respondent was charged under s 10 of the SOACA.

The Relevant Provisions Of Law

[8] Section 4 of SOACA provides that:

Child Pornography

(I) In this Act:

(a) "child phonography" means any representation in whole or in part, whether visual, audio or written or the combination of visual, audio or written, by any means including but not limited to electronic, mechanical, digital, optical or magnetic means, or manually crafted, or the combination of any means:

(i) of a child engaged in sexually explicit conduct;

(ii) of a person appearing to be a child engaged in sexually explicit conduct;

(iii) of realistic or graphic images of a child engaged in sexually explicit conduct; or

(iv) of realistic or graphic images of a person appearing to be a child engaged in sexually explicit conduct; and

(b) "sexually explicit conduct" includes actual or simulated of the following:

(i) sexual intercourse, or lewd acts including physical contact involving genital to genital, oral to genital, anal to genital, or oral to anal, between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse in a sexual context;

(v) exhibition for sexual purpose of the genital, buttock, breast, pubic area or anus; and

(vi) use of any object or instrument for lewd acts."

[9] Section 10 of SOACA provides that:

"Any person who accesses, or has in his possession or control, any child pornography commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten thousand ringgit or to both.

Explanation - A person is said to access child sexual abuse material if he knowingly causes child sexual abuse material to be viewed by, or transmitted to, himself. "

The Appeal

App