The prosecution must prove the specific act charged beyond reasonable doubt, including the date of the alleged offence, for a conviction to be safe.

Lim Hock Leng J:

[1] In the charge framed under s 14(a) of the Sexual Offences Against Children Act 2017 (" SOACA "), the appellant was alleged to have, on 27 June 2021, in the bedroom of an unnumbered house at Kampung Kompipinan Dabak, Penampang, "memasukkan jari ke dalam kemaluan kanak-kanak berkenaan."

[2] The charge reads as follows:

"Bahawa kamu, pada 27 June 2021, bertempat di bilik tidur sebuah rumah yang tidak bernombor, Kampung Kompipinan Dabak di dalam daerah Penampang, di dalam negeri Sabah telah melakukan amang seksual fizikal terhadap kanak-kanak dengan menyentuh mana-mana bahagian badan seorang kanak-kanak iaitu XXXXXX (No Mykad : XXXXXX-XX-XXXX) berumur 7 tahun 10 bulan dengan memasukkan jari ke dalam kemaluan kanak-kanak, oleh yang demikian kamu telah melakukan kesalahan dibawah s 14(a) Akta Kesalahan-Kesalahan Seksual Terhadap Kanak-Kanak 2017 (Akta 792) yang boleh dihukum di bawah Seksyen yang sama."

[3] After a full trial, the appellant was convicted of committing physical sexual assault on a child who was 7 years and 10 months of age ("PW1") at the time.

[4] The appellant, the 55-year-old boyfriend of PW1's mother, was sentenced to a term of imprisonment for 6 years, and ordered to be whipped twice. He was also ordered to be placed under police supervision for 3 years after serving sentence, and to undergo rehabilitative counseling while imprisoned.

[5] The prosecution called 5 witnesses to prove the essential elements of the charge:

(i) PW1 was a child;

(ii) the identity of the accused;

(iii) there must be physical sexual assault or contact on the child victim by the accused; and

(iv) that assault or contact must have been carried out with a sexual purpose or intent.

[6] The 5 witnesses were:

(i) the alleged victim (PW1);

(ii) a doctor from the obstetrics and gynaecology unit at the Hospital Wanita dan Kanak-Kanak Likas (PW2);

(iii) PW1's grandmother (PW3);

(iv) PW1's mother (PW4);

(v) and the Investigating Officer (PW5).

[7] PW1's MyKid was marked as exhibit P7, thus establishing her age at the time the offence was said to have been committed. Her age was not disputed.

[8] As for the accused's identity, he was identified by both PW1 and her mother PW4 at the trial.

[9] At the trial, the appellant was represented by a different counsel.

[10] Aggrieved by the outcome of the trial, the appellant appealed to this Court .

Notice Of Motion (Further Or Additional Evidence, And Supplementary Petition Of Appeal)

[11] For the purposes of the appeal, the appellant had engaged a different counsel who filed a notice of motion to adduce further or additional evidence, primarily on the basis of the previous counsel's flagrant incompetence.

[12] The appellant's application to adduce further or additional evidence was general and broad, as can be seen from the Notice of Motion and affidavit in support. It was, in substance, an attack on the previous counsel's flagrant incompetence.

[13] The application was disallowed, though the appellant was allowed to file a supplementary petition of appeal (to which the prosecution was amenable).

[14] The appellant felt aggrieved his previous counsel did not put across his case that (i) from morning till about 330pm on 27 June 2021, he was at a training centre and he could not recall the time he had returned to PW4's house on that day; and (ii) when he arrived at PW4's house on that day, he and PW4 were attending to their dog which was about to give birth. In his affidavit in support, he averred he was with PW4 from that night till the morning, and he was the one who had cut the umbilical cord.

[15] The appellant also took issue with his previous counsel's omission in objecting to other alleged acts of sexual misconduct on the victim on other dates which, it was argued, were prejudicial and inadmissible.

[16] The appellant averred/suggested he could not have committed the offence with which he was charged on account of that narrative, and that he had given instructions to his previous counsel to deny