2026 MarsdenLR 1837

HIGH COURT MALAYA JOHOR BAHRU
ATAN MUSTAFFA YUSSOF AHMAD, J
MOHAMAD ABU AKKAS – Appellant
Versus
PP – Respondent
[Criminal Appeal No: JA-42JSKS-11-04/2025]

Tactile sensory perception constitutes direct evidence of a criminal act. Furthermore, the appellate court will not disturb a trial judge’s findings on witness credibility and fact based on demeanor unless there are substantial and compelling reasons, and failure to cross-examine on a defense hypothesis renders it a baseless conjecture.

Headnote:(A) Sexual Offences Against Children Act 2017 - Section 14(d) - Physical sexual assault - Meaning of direct evidence - Perception through senses other than vision - Section 60(1)(c) of Evidence Act 1950 - Section 18 of Sexual Offences Against Children Act 2017 - Conviction without corroboration - Competency inquiry under section 133A of Evidence Act 1950. (Paras 5, 6, 28, 69, 70)

(B) Appellate Standard - Findings of fact and credibility of witnesses - Appellate court will not disturb findings of a trial judge who had the benefit of observing witness demeanour unless substantial and compelling reasons exist. (Para 19)

(C) Evidence - Corroboration - Concept of independent evidence of material facts - Subsequent complaints and post-incident conduct - Importance of putting factual assertions to witnesses during cross-examination - Fatal failure to cross-examine on a crucial hypothesis. (Paras 44, 46, 64, 65)

(D) Sentencing - Principles of sentencing - Deterrence and public interest - Protection of public as the primary consideration - Statutory objectives of rehabilitation orders. (Paras 74, 76)

Facts of the case:
An individual appealed against a conviction and sentence for physical sexual assault of a child. The conviction was based on oral testimony of the child victim, who had been sleeping in close proximity to the appellant. The appellant raised a defense of bare denial and proposed an alternative hypothesis involving other individuals present in the room who were not cross-examined regarding this possibility. The prosecution relied on the child's tactile perception of the assault, forensic findings of anal injury, and the child's subsequent complaint to family members.

Findings of Court:
The court found that the victim's testimony was credible and consistent. The tactile perception of the assault constitutes direct evidence under the law of evidence. The appellant's proximity and the lack of alternative evidence invalidated the defense's speculation. The medical findings corroborated the victim's account. The sentence was found to be proportionate and consistent with sentencing principles for the protection of children.

Issues: The main issues were the sufficiency of the evidence for a prima facie case, the adequacy of identification and evidence of opportunity, the admissibility of complaint evidence as corroboration, the treatment of theoretical medical possibilities regarding injury, and the proportionality of the sentence.

Ratio Decidendi: Direct evidence includes facts perceived through any human sense, including touch. Persistent complaints and behavioral changes post-incident serve as valid corroborative evidence. An alternative hypothesis not put to witnesses during cross-examination amounts to a failure to challenge evidence and is properly treated as an afterthought. Findings on credibility and demeanor by a trial court that observed witnesses are not to be disturbed without compelling cause.

Result: Appeal against conviction and sentence dismissed. Both are affirmed in full.