JUDGMENT

Ravinthran Paramaguru J:

[1] The unrepresented appellant was charged as follows in the Magistrates' Court:

Bahawa kamu pada 8 haribulan Ogos 2015, jam lebih kurang 12.45 tengah hari bertempat di kawasan tanah Perkuburan Islam Kg Kiansam WP Labuan, di dalam Wilayah Persekutuan, telah menyerang atau menggunakan kekerasan jenayah kepada xxxxxxxx xxxxx xxxxxx No KPT: xxxxxx-xx-xxxx dengan niat hendak mencabul kehormatannya tanpa kerelaannya. Oleh itu, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 354/511 Kanun Keseksaan Undang-Undang Malaysia.

[2] The prosecution called a total of seven witnesses. The case of the prosecution was as follows. The complainant who is a 15-year-old girl boarded a bus driven by the appellant. When she remained in the bus as the only passenger, the appellant drove the bus to a cemetery. She told the Court that the appellant locked the front door and pushed her. She then jumped over to the back of the bus. At that time, the appellant unbuttoned his shirt. The complainant intended to jump out of the bus through the back door. However, the appellant managed to grab her leg. Nonetheless, the complainant kicked the appellant and ran out through the back door. She boarded another bus and told the driver (PW4) about the incident. He was called as a witness. When she reached home, she told her sister who then brought her to lodge a report. Her sister was also called as witness.

Findings Of The Magistrate At The End Of Prosecution Case

[3] The learned Magistrate found that based on the evidence of the complainant, there was a criminal force as the appellant had pushed her and had grabbed her leg. She also found that the assault was made with the intention to outrage her modesty. She considered the evidence of the bus driver (PW4) who took her home and the evidence of her sister as corroborative of the testimony of the complainant. These witnesses testified that the complainant was crying and in a state of shock after the incident in question. In the premises, she called for the defence of the appellant.

Finding At The End Of The Prosecution's Case

[4] The unrepresented appellant/accused gave evidence on oath. He denied outraging the modesty of the complainant. He said he took a wrong turn and entered the road leading to a cemetery. When he explained to the complainant, she allegedly yelled at him and ran away. The learned Magistrate held that the defence was a bare denial and found that the accused did not raise a reasonable doubt. She convicted him and sentenced him to four years' imprisonment from 24 January 2017 and five lashes of the whip.

Grounds Of Appeal

[5] The appellant was represented by counsel at the appeal hearing. Counsel for appellant submitted numerous grounds of appeal. These grounds relate to the assessment of evidence of the witnesses called by the prosecution. For example, he submitted that some of the witnesses are biased witnesses as they are related or are acquainted with the complainant. I see no merit in these grounds as a witness is not rendered incompetent merely because of personal relationship with the victim of a crime. Findings of fact based on direct evidence of witnesses as to what they heard or saw is a matter solely within the purview of the trial Court and it rarely admits of appellate interference.

[6] However, counsel for appellant raised three issues of law that merit scrutiny. I shall consider them below.

[7] For some reason, the appellant was charged under s 354/511 of the Penal Code. The evidence tendered by the prosecution was to support a charge of outrage of modesty under s 354 as opposed to an attempt under s 511. At the close of the case for the prosecution, the prosecuting officer submitted that a case under s 354 had been made out. The learned Magistrate found that a prima facie case had been established under s 354. She specifically mentioned s 354 in the notes of proceedings when calling for defence. In the premises, I am of the view that the cl