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2019 MarsdenLR 1951
HIGH COURT MALAYA SHAH ALAM
AHMAD FAIRUZ ZAINOL ABIDIN, JC
MUHAMMAD ADIB SUFYAN AZMAN – Appellant
Versus
PP – Respondent
[Criminal Appeal No: BA-42S-83-12-2017]
The conviction for carnal intercourse against the order of nature under section 377C was upheld based on the victim’s credible testimony and corroborative evidence.
Headnote:{ "Statute Analysis": "Section 377C of the Penal Code criminalizes carnal intercourse against the order of nature without consent. The charge arose from an incident involving the appellant and a 13-year-old victim.", "Facts of the Case": "The appellant was found guilty of committing oral sex on the victim in July 2014. The conviction was based on the victim's testimony and corroborative evidence from subsequent witnesses and investigations.", "Findings of Court": "The court established that the prosecution met the statutory requirements of s 377C, confirming that carnal intercourse occurred without consent.", "Issues": "The primary question was whether the evidence presented sufficed to prove the guilt of the appellant beyond reasonable doubt.", "Ratio Decidendi": "The court reasoned that discrepancies in the testimony do not inherently undermine credibility, especially given the lack of corroborative evidence required for sexual offences against minors.", "Result": "The conviction and sentence of the appellant are affirmed and the appeal is dismissed." }
JUDGMENT
Ahmad Fairuz Zainol Abidin JC:
Introduction
[1] The appellant was charged under s 377C of the Penal Code for committing carnal intercourse against the order of nature at the Ampang Sessions Court. The appellant claimed trial and at the end of the trial, the learned Sessions Court Judge (“LSCJ”) found the appellant guilty and sentenced him to 15 years’ imprisonment and impose six strokes of whipping. This court dismissed the appeal and affirmed the sentence of the LSCJ. The appellant now appeals to the Court of Appeal and this is the Ground of Decision of this court.
The Charge
[2] The charge reads as follows:
“Bahawa kamu pada pertengahan bulan Julai 2014 jam lebih kurang 4.00 petang di sebuah bilik di alamat PUSAT TAHFIZ AL-NASAR, NO 59 JALAN SEIRRA UKAY 5, TAMAN SEIRRA UKAY, UKAY PERDANA 68000 AMPANG, di dalam daerah Hulu Langat, di dalam Negeri Selangor Darul Ehsan, didapati dengan sengaja melakukan persetubuhan yang bertentangan dengan aturan tabii terhadap seorang lelaki bernama XXXXX XXXXXXX XXX XXXX XXXXX, NO KP: XXXXXX-XX-XXXX dengan tanpa kerelaannya atau bertentangan dengan kemahuannya. Oleh yang demikian, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 377C Kanun Keseksaan (Akta 574).”
The Prosecution Case
[3] The prosecution case was primarily based on the testimony of the victim, SP7. SP7 gave evidence that the incident relating to the charge took place sometime in the month of July 2014. At that time, he was 13 years old. He testified that he was a student at the Tahfiz, located at Ukay Perdana, Ampang, Kuala Lumpur. On the day of the incident, SP7 testified that he was called by the appellant to come up to the appellant’s room. Upon entering the room, he saw several boys massaging the hands and legs of the appellant. The appellant then asked the other boys to leave the room, leaving SP7 and the appellant alone in the room. SP7 testified that he heard the room being locked as the boys left. SP7 was then asked to massage the appellant. The appellant then asked SP7 to lie on the bed next to him. The appellant then performed oral sex on SP7. Subsequently, the appellant then asked SP7 to perform oral sex on him. This was done by the appellant standing up and SP7 kneeling. The appellant then inserted his penis into the mouth of SP7. SP7 testified that the incident was over quickly and as he left the room, he was warned by the appellant to not inform anyone of the incident. The act of the appellant inserting his penis into the mouth of SP7 was the essence of the charge against the appellant.
[4] It was many months later, sometime in 2015 that SP7 told the incident to his parents and eventually lodged a police report, P1. This was after allegations of abuse by staff of the Tahfiz on the students broke out. The catalyst being after one of the students who ran away from the school over an alleged incident of a similar nature.
[5] The prosecution called six other witnesses. Insp Nur Zawanie binti Zakaria (“PW1”) was a police officer who was the investigating officer of the case. Insp Rashila binti Harun (“PW2”) was the police officer who interviewed SP7 at the Child Investigation Center (“CIC”). Kpl Masdzir bin Mohamed (“PW3”) was the police personnel who served on the appellant the medical report of SP7. Mohd Izuddin bin Johari (“SP4”) was a staff of the Tahfiz and also the brother-in-law of the appellant. L/Kpl Mohd Fauzi bin Mohd Noor (“SP5”) was the photographer. Insp Veeramuthu a/l Suppiah (“SP6”) was the officer in charge of carrying out the recording of the interview at the CIC.
The Defence Case
[6] The defence of the appellant was based on an alibi that he was not at the Tahfiz on the day and time as stated in the charge. This was due to it being a fasting month, he was helping one Mohd Fakhruzi sell Roti John at the local Bazaar Ramadan. During his defence, he failed to call the person named in the Alibi Notice but instead another witness Mohd Irfan Zahin Azhar (“SD2”) was called. SD2 testified to
