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2024 MarsdenLR 1662
COURT OF APPEAL PUTRAJAYA
TAY KIANG HEONG – Appellant
Versus
PP & ANOTHER APPEAL – Respondent
[Criminal Appeal Nos: D-09H-504-10-2018 & D-09H-505-10-2018]
The court affirmed the conviction for outraging modesty under Section 354, emphasizing the credibility of witnesses and the sufficiency of evidence, while enhancing the sentence to 1 year imprisonment.
Headnote:(A) Penal Code – Section 354 – Outraging modesty – Conviction of the accused for outraging the modesty of the complainant was affirmed by the High Court, which found sufficient evidence of assault and intention to outrage modesty – The defence's claims of conspiracy and fabrication were rejected as unsubstantiated. (Paras 6, 28, 40)
(B) Evidence – Credibility of witnesses – The High Court upheld the credibility of the complainant and corroborating witness, finding their testimonies consistent and reliable, thus supporting the conviction. (Paras 28, 46)
(C) Sentencing – The High Court enhanced the sentence from 3 months to 1 year imprisonment, affirming the fine, considering the seriousness of the offence and the impact on the victim. (Paras 51, 52)
Facts of the case: The accused was charged with outraging the modesty of the complainant in a shop, where he followed her into a store room and assaulted her. The complainant's testimony was corroborated by her employee, and the accused's defence was deemed implausible. (Paras 2, 6, 12, 23)
Findings of Court: The Sessions Court found sufficient evidence to establish a prima facie case against the accused, leading to conviction. The High Court affirmed this finding, emphasizing the credibility of the complainant and corroborating witness. (Paras 28, 40)
Issues: The main issues included the credibility of witnesses, the sufficiency of evidence for conviction, and the appropriateness of the sentence. (Paras 28, 40)
Ratio Decidendi: The court ruled that the evidence presented was sufficient to establish the elements of the offence under Section 354, and the defence's claims lacked credibility. The High Court's enhancement of the sentence was justified based on the seriousness of the offence. (Paras 28, 51)
Result: Conviction affirmed; sentence enhanced to 1 year imprisonment and RM8,000 fine. (Paras 51, 52)
JUDGMENT
Introduction
[1] There are two appeals before us emanating from a single judgment of the High Court in Kota Bharu, Kelantan. The first, Appeal No: D-09(H)-504-10/2018, is by Tay Kiang Heong ("Tay") against his conviction and sentence and the second, Appeal No: D-09(H)-505-10/2018, is by the Public Prosecutor against the sentence.
[2] Tay was charged in the Kota Bharu Sessions Court with an offence of outraging the modesty of one Ms Yeap Woan Tyng ("Ms Yeap") and the charge read as follows:
"Bahawa kamu pada 15 Julai 2015, jam lebih kurang 9.30 malam di sebuah kedai beralamat Kedai Kek Cintaku, Cawangan Pasaraya KB Mall, Jalan Hamzah, dalam daerah Kota Bharu dalam negeri Kelantan telah menggunakan kekerasan kepada Yeap Woan Tyng, No K/P: 830306-03-5752, dengan niat untuk mencabul kehormatannya. Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum dibawah s 354 Kanun Keseksaan."
[3] Tay was convicted of the charge by the trial Court and sentenced to 3 years' imprisonment from the date of sentencing on 22 February 2017. Tay appealed to the High Court against both conviction and sentence, whilst the Public Prosecutor cross-appealed against the sentence.
[4] The High Court affirmed the conviction and allowed Tay's appeal against the sentence. The sentence was reduced to 3 months' imprisonment together with a fine of RM8,000.00 in default 8 months' imprisonment. Accordingly, the Public Prosecutor's cross-appeal was dismissed. This is the decision that is on appeal before us.
[5] Tay paid the fine and the sentence of imprisonment was stayed pending appeal to this Court. Tay was on bail when he appeared before us.
Our Decision
[6] Having considered the Appeal Record and having heard and read the submissions of learned counsel for Tay as well as the learned Deputy Public Prosecutor, we delivered our decision and brief grounds in respect of both appeals as follows:
(a) in respect of Tay's appeal in Appeal No: D-09(H)-504-10/2018, we dismissed the appeal in whole and affirmed the conviction; and
(b) in respect of the Public Prosecutor's cross-appeal in Appeal No: D-09(H)-505-10/2018, we allowed the appeal in part by enhancing the sentence of imprisonment from 3 months to 1 year and affirming the sentence of RM8,000.00 fine in default 8 months' imprisonment.
These are the full grounds for our decision.
At The Sessions Court
Prosecution's Case
[7] The prosecution adduced the following evidence as part of its case:
(i) On 9 July 2015, the complainant, Ms Yeap, saw a Chinese man looking into her shop Kedai Kek Cintaku, KB Mall, Kota Bharu from outside the door and going back and forth in front of the store 3 to 4 times.
(ii) On 10 July 2015, the same Chinese man, later identified as Tay, entered the shop and bought a cake and then asked Ms Yeap to accept the cake back while telling Ms Yeap that someone was interested in meeting her.
(iii) On 11 July 2015, Tay gave a love letter to Ms Yeap and asked Ms Yeap to call a certain phone number.
(iv) On 12 July 2015 Tay gave a card together with some 'Famous Amos' chocolates to Ms Yeap.
(v) On 13 July 2015, out of curiosity Ms Yeap called the phone number that Tay gave and the recipient of the call, one Ah Kee, informed that he had never asked Tay to do what he did and that he did not know Tay and Ms Yeap.
(vi) On 15 July 2015, Ms Yeap's employee at the shop, one Ms Nur Fazlin (SP5) saw Tay coming towards the shop and asked Ms Yeap to hide in the store room at the back because she was worried that Tay would disturb Ms Yeap.
(vii) Ms Yeap then ran into the store room, but Tay nevertheless followed her by entering the store through the kitchen door.
(viii) When Tay opened the store room door, Ms Yeap was shocked and tried to run out of the store room.
(ix) Tay held both Ms Yeap's hands and she tried to get her right hand released. Then, Tay's right hand grabbed Ms Yeap's buttocks and at this point Ms Yeap yelled at Tay to let go. Tay refused to let go and merely smile
