The prosecution must establish a prima facie case beyond reasonable doubt in criminal charges; gaps in evidence cannot be filled by speculation.

JUDGMENT

Prabakaran Rajoo M:

(End Of Prosecution's Case)

Introduction

[1] This case involves an offence of outraging modesty. The accused, a doctor at a private clinic, has been charged and tried in this court under s 354 of the Penal Code (" PC "). The complainant ("SP2") is a patient who sought treatment from the accused at his clinic.

[2] The charge against the accused is as follows:

"Pertuduhan Bahawa kamu pada 12 September 2021 jam lebih kurang 10.50 pagi bertempat di Klinik Perubatan Mutiara Selama PT 3742, Jalan Menteri 34100 Selama, di dalam Daerah Larut Matang (Selama), di dalam Negeri Perak telah didapati menggunakan kekerasan jenayah kepada SP2 No Kpt: XXXXXX-XX-XXXX dengan niat untuk mencabul kehormatannya dan oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 354 Kanun Keseksaan."

[3] To protect the identity of the complainant in this case, this court will not disclose the complainant's full name or identification number. Instead, the court will refer to the complainant as SP2 in this judgment.

[4] The prosecution called a total of five (5) witnesses during the trial at the prosecution stage. They also tendered seven (7) exhibits, while the defence tendered one (1) exhibit during the prosecution stage of the trial.

[5] At the end of the prosecution's case, after undertaking a maximum evaluation of all the evidence presented, I found that the prosecution failed to establish a prima facie case against the accused. Consequently, the accused was acquitted and discharged from the charge.

[6] Dissatisfied with the decision, the prosecution filed a notice of appeal to the High court of Taiping. This judgment sets out the full reasons for this court's decision.

Prosecution's Case

[7] The prosecution's case is as follows. Towards the end of 2020, the complainant in this case, that is SP2, experienced health issues in her genital area, where she had a vaginal discharge which causing skin irritation around her genital area and thighs.

[8] Due to these health issues, SP2 sought treatment at the Mutiara Selama Medical Clinic ("the clinic"), the location of the alleged incident. Initially, SP2 consulted an Indian female doctor, Dr Reva, at the clinic. However, her condition did not improve, and the skin irritation continued to spread due to the discharge.

[9] On 14 August 2021, SP2 met the accused for the first time. During their meeting at the clinic's counter, SP2 explained her health problems to the accused. At that time, the accused only provided his phone number for SP2 to contact him for follow-ups on her condition.

[10] On 7 September 2021, SP2 contacted the accused via WhatsApp, informing him of the persistent vaginal discharge and worsening skin irritation. SP2 also sent the accused some photographs of her condition through WhatsApp. The accused then told SP2 that an examination was necessary and asked her to visit the clinic. During the cross examination, SP2 stated that she was unfamiliar with the procedures for health examinations related to her condition but confirmed that she gave consent for an examination of her private area.

[11] On 12 September 2021, SP2 went to the clinic for her appointment. She was accompanied by her younger brother but was not accompanied by her mother or any female relatives. At the clinic, SP2 went to the counter first before being directed to the consultation room, where she met the accused. At this time, her younger brother was waiting outside. The accused then instructed her to proceed to the examination room next to the consultation room. According to SP2, she entered the examination room, followed by the accused.

[12] In the examination room, the accused asked SP2 to remove her trouser and underwear and lie down on the examination bed. SP2 complied and removed her said clothing herself. The accused then left the room briefly to take some medical equipment from the consultation room. After removing her said clothing, SP2 lay on the bed with her legs facing the wal