JUDGMENT

Norsharidah Awang J:

Introduction

[1] This is an appeal by the appellant against the decision of the learned magistrate delivered on 21 July 2023, whereby the appellant was charged under s 323 of the Penal Code, read together with s 326A of the Penal Code, for voluntarily causing hurt to his wife, an act falling within the definition of domestic violence. The Appellant was sentenced to one month imprisonment from the date of conviction and a fine of RM2,000.00 in default three (3) months imprisonment.

[2] The appeal before this Court is against both the conviction and sentence.

The Charge

[3] The charge against the Appellant was as follows:

"Bahawa kamu pada 12 December 2021 jam lebih kurang 06.45 petang semasa berada di kedai makan citarasa Cheff Pa, 31000 Batu Gajah Perak, di dalam Daerah Batu Gajah, di dalam negeri Perak dengan sengaja telah menyebabkan kecederaan kepada Wan Syuhaida binti Wan Mohamad KPT: 790318-11-5676 yang merupakan isteri kamu. Oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah s 323 Kanun Keseksaan dan boleh dihukum di bawah s 326A Peruntukan yang sama."

Facts Of The Case

[4] On 12 December 2021, at about 6.45pm, the victim, Wan Syuhaida binti Wan Mohamad (SP4), who was the wife of the appellant, Zulkarnain bin Alias, was at Kedai Makan Citarasa Cheff Pa in Batu Gajah with their child, waiting for a friend. The Appellant arrived and requested to take the child out for a meal. The victim refused, which led to a physical struggle.

[5] In the course of this struggle, the appellant struck the victim at the back of her neck while attempting to seize the child. The victim managed to regain custody of the child, but the appellant, angered by the confrontation, returned to his car and allegedly attempted to run the victim over.

[6] Terrified, the victim fled to the back of the restaurant and sought assistance from members of the public, before being taken to the house of the appellant's friend, Saiful Nizam (SD3).

[7] Later that same day, she lodged a police report, and on the following morning sought medical treatment at Batu Gajah Hospital.

[8] A medical examination Dr Thishanrthini (SP3) confirmed that she had sustained soft tissue injuries to her neck. The doctor also noted that the victim appeared fearful, anxious, and displayed symptoms of depression and suicidal thoughts, which warranted referral to the Psychiatry Department. In her medical report, the victim reported that her husband had punched her twice on the neck.

[9] The Appellant denied striking the victim, asserting instead that he acted only to protect their child during the struggle, as the victim had twisted his arm.

[10] The Appellant called Faridah binti Yusof (SD2), who was said to be his adopted sister as his witness. In her testimony, SD2 testified that she was inside the car and witnessed what transpired between the appellant and the victim. According to her, the victim refused to allow the appellant to take their child to the hospital and acted by twisting the appellant's arm before running to the back of the restaurant. SD2 admitted that she knew the victim as the wife of the accused.

[11] After a full trial, the learned magistrate concluded that the defence failed to raise any reasonable doubt against the prosecution's case.

[12] Having considered both mitigating and aggravating factors, the magistrate imposed a sentence of one month's imprisonment and a fine of RM2,000.00 in default two months imprisonment, reflecting the seriousness of domestic violence offences and the mandatory custodial element required under s 326A.

The Magistrate's Finding

[13] The learned Magistrate found that the five witnesses, including the victim herself, gave a clear, consistent, and credible account of the incident. Her testimony was in line with her police report lodged within an hour of the occurrence, and under s 157 of the Evidence Act, that report was admissible as corroborative evidence.

[14] The Magistrate further observed her demeanour, sh