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2026 MarsdenLR 1998
HIGH COURT SABAH & SARAWAK TAWAU
STEVE RITIKOS, JC
MERUAN DAUD – Appellant
Versus
PP (ENCL 18 & 19) – Respondent
[Criminal Appeal No: TWU-42JSKH-2-10/2024]
The admission of additional evidence on appeal is a discretionary power reserved for exceptional circumstances. The applicant must satisfy the four-fold cumulative test: unavailability at trial, relevance, credibility, and the likelihood of creating a reasonable doubt as to the verdict if admitted.
Headnote:(A) Criminal Procedure Code - Section 317 - Application for leave to adduce additional evidence on appeal - Principles governing the reception of fresh evidence - Whether evidence sought to be adduced satisfies the cumulative four-fold test established in authorities - (Paras 16, 17, 33)
(B) Appeal - Scope and ambit - Power to admit additional evidence is an exception and must be exercised only in the most exceptional circumstances - Court must be satisfied that failure of justice would result if evidence is not taken and that such evidence is necessary - (Paras 17, 33)
Facts of the case:
An appellant, convicted for a sexual offence against a child after pleading guilty, sought to introduce a medical blood test result as fresh evidence on appeal. The appellant argued that this result, which showed he was not infected with a specific viral disease, contradicted the complainant's allegations and rendered the original conviction unsafe.
Findings of Court:
The court determined that while the medical record was not available at trial and was relevant, it did not satisfy the fourth condition of the established legal test. The original conviction and sentence were not based on the medical report regarding potential transmission, nor was the guilty plea contingent upon such medical findings. The court held that the appellant’s plea was unequivocal and that the introduction of such evidence would not create reasonable doubt regarding the conviction.
Issues: The main issue was whether the criteria for admitting fresh evidence under the relevant procedural section of the criminal code were met, specifically whether the evidence would have likely resulted in the trial court forming a reasonable doubt as to the appellant’s guilt.
Ratio Decidendi: The court maintained that the power to admit fresh evidence on appeal is discretionary and reserved for exceptional cases to ensure the finality of litigation. Because the medical evidence did not touch upon the core facts admitting to the commission of the offence and was not a factor in the original sentencing, no failure of justice occurred, and the application failed to satisfy the cumulative requirements for the exercise of appellate discretion.
Result: Application dismissed.
| Table of Content |
|---|
| 1. overview of charges, guilty plea, and sentencing. (Para 1 , 2 , 3 , 4 , 5) |
| 2. appellant contends fresh evidence undermines the guilty plea. (Para 6 , 7 , 8 , 9 , 10) |
| 3. prosecution argues plea was valid; evidence was not relied upon. (Para 11 , 12 , 13 , 14 , 15) |
| 4. legal criteria for admitting fresh evidence on appeal. (Para 16 , 17) |
| 5. court finds four conditions not cumulatively satisfied. (Para 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35) |
JUDGMENT
The Application
[1] Vide Notice of Motion dated 22 April 2025 (Enclosure No 18) supported by an Affidavit In Support (Enclosure No 19), the Appellant is seeking for an Order that additional and/or fresh evidence of the Blood Test Result of the Appellant validated on 21 February 2024 by the Jabatan Patologi, Hospital Tawau ("Blood Test Result") be allowed. The Notice of Motion is made under s 317 of the Criminal Procedure Code.
Brief Facts Leading To This Motion
[2] The Appellant was charged for an offence under s 14(a) of the Sexual Offences Against Children Act 2017 (Akta Kesalahan-Kesalahan Seksual Terhadap Kanak-Kanak 2017) before the Sessions Court of Tawau.
[3] On 5 September 2024, the Appellant pleaded guilty to the charge arraigned against him. Upon his plea of guilty, the Appellant was sentenced to 9 years imprisonment with effect from the date of conviction (5 September 2024) and 4 strokes of whipping. The Appellant is also to undergo rehabilitative counselling during the sentence and police supervision for a period of 2 years after serving his sentence.
[4] The Appellant is appealing against both conviction and sentence.
[5] The Appellant is challenging the legality of his own plea of guilty made on 5 September 2024 and is also dissatisfied with the sentence imposed by the Learned Sessions Court Judge ("SCJ").
The Charge
The charge proffered against the Appellant is as follows:
"Bahawa kamu pada 11 Mac 2024, jam lebih kurang 12:00 tengah hari, bertempat di Kedai Gunting yang terletak di Kampung Mentadak Baru, Sg. Tamang, Pulau Sebatik, Peti Surat 884, 91008 di dalam Daerah Tawau, di dalam Negeri Sabah, telah melakukan kesalahan amang seksual fizikal ke atas kanak-kanak dengan memasukkan kemaluan kamu ke dalam dubur penama Muhammad Danial bin Imrandin (No. KP: 071130-12-0085) berusia 16 tahun 3 bulan. Oleh yang demikian kamu telah melakukan kesalahan yang boleh dihukum di bawah s 14(a) Akta Kesalahan Seksual Terhadap Kanak-Kanak 2017"
The Appellant's Submission
[6] The Blood Test Result was never produced nor brought to the attention of either the Appellant nor the presiding Judge anytime before the plea of guilt or even before sentencing.
[7] Investigation was carried out in the first place when the Victim was found to be infected with HIV and the Victim allegedly did a sexual act with the Appellant. Since the Blood Test Result showed that the Appellant was not infected with HIV, this goes directly to the issue of whether there was the purported sexual act between them.
[8] Exhibit P6 shows inconsistency with the Victim's allegation that shows that the acceptance of the plea of guilty and the conviction are unsafe.
[9] With the Blood Test Result showing that the Appellant is not infected with such disease, it would certainly raise a reasonable doubt as to whether the allegations carry any weight, if at all.
[10] One surely cannot infect another with a disease that he doesn't have. It can only mean that the Victim was not telling the truth, coupled with the fact that there were some external and extenuating circumstances that occurred just before the plea of guilty took place, which render the acceptance of plea of guilty and subsequent conviction, unsafe.
The Prosecution's Submission
[11] The Appellant had pleaded guilty to the charge against him - a summary trial under s 173 of the Criminal Procedure Code. Witnesses were not called and evidence admitted is accepted upon admission of the Accused person.
[12] The co
