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1994 MarsdenLR 469
Hj. Abdul Malik b. Hj. Ishak J:
After hearing arguments from both sides, I allowed the appeal and set aside the order of conviction and sentence and released the appellant forthwith. I do not propose to set out the facts at great length. It is sufficient to say that the complainant, aged 13 years, was allegedly raped by the appellant, her neighbour, on 30 August 1992 at about 3.15 p.m. in the appellant's unnumbered house at Ladang Bukit Klian, Selama, Perak.
This appeal revolves on two pertinent questions of law. Firstly, the failure of the Sessions Court Judge to appls. 133A of the Evidence Act, 1950 before proceeding to record the evidence of the complainant. Secondly, the Sessions Court Judge applied the wrong burden of proof in a defence of alibi set up by the appellant.
The complainant was thirteen years of age at the time of the alleged rape and fifteen years of age when she gave evidence before the Sessions Court Judge. The Sessions Court Judge noted the following details before he proceeded to record the complainant's evidence:
Saksi pada pandangan Mahkamah tidak memahami sifat sumpah yang hendak diberikan.
Saksi beri keterangan tanpa sumpah.
Section 133A of the Evidence Act, 1950 which came into force on 1 November 1971 vide PU(A) 126/71 enacts briefly that for the unsworn evidence of a child, there is now a requirement in law that the unsworn evidence of any child of tender years has to be corroborated by some other material particular in support implicating an accused before he can be convicted. The Sessions Court Judge must have formed an opinion that the complainant was a person of "immature age" but unfortunately he failed to take into accouns. 133A of the Evidence Act, 1950 and, more importantly, he failed to apply his mind to s. 8 of the Oaths and Affirmations Act, 1949 (Revised 1977 ). Since the Sessions Court Judge allowed the complainant to give an unsworn evidence, he should have cautioned the complainant to speak the truth, the whole truth and nothing but the truth following closely the words appearing in s. 8 of the Oaths and Affirmations Act, 1949 (Revised 1977 ). It is also desirable, in my considered view, that the Sessions Court Judge should apply and record appropriate questions in the notes of evidence so as to ascertain whether the complainant understands the solemn duty of speaking the truth or not. Arising out of this, the Sessions Court Judge should also record in the notes of evidence his opinions and reasons in arriving at the conclusions as to whether the complainant understands the solemn duty of speaking the truth or not. The notes of evidence would form the record of proceedings and, through it, the appellate Court will be able to ascertain whether the correct procedures had been adopted (Krishna Kahar v. Emperor [1940] AIR Cal. 182). It is rather unfortunate that the Sessions Court Judge completely misapprehended the law and floundered when confronted with this seemingly easy problem.
The significance of applying s. 133A of the Evidence Act, 1950 and s. 8 of the Oaths and Affirmations Act, 1949 (Revised 1977) can be fully appreciated when one bears in mind the danger as envisaged by Thomson C.J. (as he then was) in the case of Chao Chong and Ors. v. P.P. [1960] 26 MLJ 238 especially at page 240, where his Lordship said:
... that it is a matter of common knowledge that children at times find it difficult to distinguish between reality and fantasy.
His Lordship continued further that:
They find it difficult after a lapse of time to distinguish between the results of observation and the results of imagination.
Faiza Thamby Chik JC (as he then was, now a High Court Judge) had occasion to remark as to the demeanour of a six (6) year old victim of kidnapping in the following words:
Whatever she said in evidence in this trial, it must be scrutinized with special care, and children have the tendency to invent and distort.
(see Public Prosecutor v. Chan Choon Keong
