Gopal Sri Ram JCA:

[1] The applicant was convicted by the magistrate's court in Melaka for having outraged the modesty of a 14 year old schoolgirl contrary to s. 354 of the Penal Code. He was sentenced to a term of four years imprisonment and ordered to suffer 2 strokes of the rottan. The applicant then appealed against his conviction and sentence to the High Court. The main ground of appeal was that the learned magistrate had failed to consider that the version given by the applicant in his evidence was consistent with that given in the cautioned statement that was recorded from him and that both were consistent with his innocence. The High Court rejected that argument. It applied the judgment of this court in Msimanga Lesaly v. PP [2005] 1 CLJ 398; [2005] 4 MLJ 314 where the trial judge had excluded the exculpatory cautioned statement of the accused and refused to consider it altogether on the ground that it was prejudicial to her co-accused. We held that this omission by the judge was not fatal. And we said this:

The degree of credence that a court is reasonably expected to assign to a particular version of events depends on the facts and circumstances of each case. And, the mere fact that an accused's evidence is consistent with his or earlier out of court statements does not require a court in every case to hold that he or she is a witness of truth. Were it otherwise, the assessment of oral testimony would become a robotic function. But the judicial appreciation of evidence is a human and not a robotic function. There are no fixed rules about it: only general guidelines. That much is made clear by numerous judgments of our courts.

[2] It was also urged before the High Court that the applicant's conviction should be quashed because the prosecution had failed to challenge the applicant's evidence as to his account of the events. The High Court also rejected that complaint. But it intervened on the issue of sentence. It reduced the term of imprisonment from four to two years and set aside the sentence of whipping. The applicant then moved this court for leave to appeal pursuant to s. 50(2) of the Courts of Judicature Act 1964 ("the Act"). Two questions were framed in respect of the two complaints made before the High Court. Having very carefully examined the motion and the affidavits filed in support, we were satisfied that the questions framed by the applicant and said to have arisen out of the judgment of the High Court acting as the court of intermediate appeal are not questions of law at all. They are merely questions of fact that have to do with the alleged failure on the part of the magistrate's court to undertake a judicial appreciation of the evidence before that court. The issue whether a trial court judicially appreciated the evidence before it is one that relates to a misdirection on the facts and evidence and is therefore not an issue of law. Accordingly, the requirements of s. 50 (2) of the Act were not satisfied. We were unanimous in deciding to dismiss the application.

[3] However, having read and re-read the motion paper provided to us, we were satisfied that the learned judge erred in altering the sentence imposed by the learned magistrate. We formed the view that the original sentence of four years imprisonment and whipping imposed by the magistrate was not manifestly excessive having regard to the facts of this case. Here you have an accused who is an Ustaz or religious teacher to whom the victim's parents had entrusted their 14 year old child - their daughter. Based on the concurrent findings made by the courts below, the accused took the victim to his home where, after inviting her to join him in prayer, he purported to undergo a summary marriage ceremony with her. Thereafter, the applicant took the preparatory steps to having sexual intercourse with the child. He fondled her. When she refused to have intercourse, he placed a copy of the Koran on the victim's head and made her swear on the Holy