Muhammad Zakwan Bin Zainuddin V PP PDF

[2019] 1 LNS 1908 Legal Network Series
IN THE HIGH COURT OF MALAYA AT TAIPING
IN THE STATE OF PERAK DARUL RIDZUAN, MALAYSIA
[CRIMINAL APPEAL NO: MT AB-42S-18-11/2018]
BETWEEN
MUHAMMAD ZAKWAN BIN ZAINUDDIN
(I/C NO: 980326-38-5315)
AND
PUBLIC PROSECUTOR
(APPEAL AGAINST CONVICTION AND SENTENCE)
CRIMINAL APPEAL NO: MT AB-42H-23-11/2018
BETWEEN
MUHAMMAD MUZAFFAR BIN TAHARIN
(I/C NO: 950407-08-5499)
AND
PUBLIC PROSECUTOR
BETWEEN
PUBLIC PROSECUTOR
AND
1
(I/C NO: 950407-08-5499)
(APPEAL AGAINST SENTENCE)
CRIMINAL APPEAL NO: MT AB-42S-20-11/2018
BETWEEN
SYED ISMAIL ARIF BIN SAYED SUHAIMI
(IC NO: 970521-38-5151)
AND
PUBLIC PROSECUTOR
CRIMINAL APPEAL NO: MT AB-42S-1-01/2019
BETWEEN
AIMAN BIN AMINUDDIN
(IC NO: 010115-08-0231)
AND
PUBLIC PROSECUTOR
IN THE SESSIONS COURT IN KUALA KANGSAR
CASE NO AG-62JS-1-05/2017
2
BETWEEN
PUBLIC PROSECUTOR
AND
MUHAMMAD ZAKWAN BIN ZAINUDDIN
(I/C NO: 980326-38-5315)
BETWEEN
PUBLIC PROSECUTOR
AND
SYED ISMAIL ARIF BIN SAYED SUHAIMI
(I/C NO: 970521-38-5151)
BETWEEN
PUBLIC PROSECUTOR
AND
(I/C NO: 950407-08-5499)
3
CASE NO AF-84-3-05/2017
BETWEEN
PUBLIC PROSECUTOR
AND
AIMAN BIN AMINUDDIN
(I/C NO: 010115-08-0231)
JUDGMENT
The case
[1] This criminal appeal pertains a rape case where the victim who
was 15 years 10 months old (below 16 years of age) at the time of
incident, is Jannah (full name not mentioned as she was a child at the
material time) was raped by 6 individuals in the early hours of
4.3.2017, at a rented house in Sungai Siput. She was led to a room
where she was raped by six individuals in succession. Four
individuals have been charged and convicted of the crime by the
Sessions Court, Kuala Kangsar.
[2] The four are Muhammad Zakwan bin Zainuddin (Zakwan, 1 st

appellant/accused, SD1), Muhammad Muzaffar bin Taharin (Muzaffar,
2 nd appellant/accused, SD2), Syed Ismail Arif bin Sayed Suhaimi
(Boboy, 3 rd appellant/accused, SD3), and Aiman (full name not
mentioned, as he is a child – 4 th appellant/offender, SD4). The first
three appellants were sentenced to eight years’ imprisonment and the
fourth appellant was sent to Henry Gurney School and to be there till
he attains age of 21 years. Against the conviction and sentence, the
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appellants had appealed. The prosecution too had appealed against

sentence with regard to the 2 nd appellant (Muzaffar), but did not
pursue.
[3] The other two, Muhammad Shah Iskandar (Shah Iskandar, SD5)
and Muhammad Hafikri bin Abdullah (Hafikri, SD6) were not
charged.
[4] All the four appellants/accused (to be used interchangeably

throughout this judgment) were charged in court separately. The
prosecution then applied for all the four cases to be tried jointly
pursuant to section 170(1) of the Criminal Procedure Code (Act 593),
(CPC). This is justified, as the offence of rape by each of the
appellants were committed in the same transaction, since it was on the
same date, at the same place and involving the same victim, who was
raped in succession by each one of them. Thus, there is found the
features of proximity of time, place, continuity of action as well as
unity of purpose and design. (See the case of Jayaraman v. PP [1979]
2 MLJ 88).
[5] The fourth appellant, Aiman, is a child, age 16 years old at time
of offence, was tried together with the three other appellants. This is
justified pursuant to section 83(4) of the Child Act 2001 (Act 611). It
specifies that a charge made jointly against a child and a person who
has attained the age of eighteen years shall be heard by a court other
than a Court for Children, like the sessions court at Kuala Kangsar.
Events leading up to the meet up with Boboy, the 3 rd appellant,

SD3
[6] The victim, SP1, had earlier in the evening before the rape had
gone out for a movie with her friend. After the movie at around 11.30
pm she was sent home by her friend. However, on reaching her home
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the house was locked. She then contacted her adopted sister,
Norashikin binti Roslan (Shikin, also SD7) for the keys. Shikin told
Jannah to meet her at Bulatan Meru in Ipoh. She was sent to Bulatan
Meru by another friend as the person who sent her home earlier was
unable to send her to Meru.
[7] When they arrived at Bulatan Meru, Jannah met Shikin at the
place. Shikin said that she did not have the house keys as they were
with her parents. Shikin then asked her friend to take Jannah to while
away time before she got the keys to the house. The man Boboy, then
took Jannah to Ipoh to watch illegal racing. They all left in a group
and it was already one am in the morning. They watched the race for
about an hour, before the police arrived at the illegal racing scene.
The spectators of the race scampered and rode away from the scene.
Initially, they were in a group but Boboy broke away from them and
headed towards Sungai Siput. Jannah noticed that they entered a
village named Kampung Sungai Buloh, written on an archway leading
to the village.
[8] They arrived at a terrace house at around 2.30 am and Jannah

noticed that there were two motorcycles parked in front of the house
and there was a cabinet outside the house too. The house was dark and
they entered the house via the back entrance. Jannah did not want to
go in but she was asked to by Boboy. The second appellant, Muzaffar
(SD2), was already at the house.
The rape
[9] Below is a narrative of the rape on Jannah and significant points

of each encounter:
3 rd appellant – Boboy, SD3
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[10] Jannah entered the house and went into a room where she lay on
a mattress. Then Boboy laid next to her and soon had his hands on her
breasts. There was some resistance on her part, but Boboy went on
with the sexual act of penetration and subsequent ejaculation based on
Jannah’s account of the incident. Jannah was very observant, being
aware of the sexual act of penetration and that he had ejaculated on
her and she wiped the semen off with the bedsheet. It was also Boboy
who took away Jannah’s clothes and hand phone.
[11] She noted the condition of the room, for instance the bedroom
door did not have a knob and had a latch on the inside and outside of
the door. She was able to positively identify the 3 rd appellant, Boboy,
obviously, as he was the first person that she had met at Bulatan Meru
and had taken her on his motorcycle to Sungai Siput. He was
identified as the 2 nd accused in court during trial and at an
identification parade held.
1 st appellant – Zakwan, SD1
[12] After Boboy left the room, a second man, Zakwan entered the
room. The man laid next to Jannah and enquired if she was all right.
Jannah replied that she was not and wanted to go home. Zakwan
ignored her answers and proceeded to rape her and ejaculated on her
stomach. He left the room after the sexual act. Jannah was able to
identify him as he had spoken to her and when he was in the room, the
light from the kitchen enabled Jannah to have a clear view of Zakwan.
She described him as a rather dark-coloured skin individual with short
hair and round eyes. He was identified as the 1 st accused in court
during trial and at an identification parade held.
The third man
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[13] When Zakwan left the room, a third man entered the room. This
man had wanted Jannah to perform fellatio on him, but she refused.
Jannah also noted that he was unable to have an erection, but still had
partial penetration with Jannah. He left the room when called out by
his friends to hurry. Unfortunately, Jannah was unable to identify the
third man during the identification parade.
2 nd appellant – Muzaffar, SD2
[14] Jannah described the fourth man to enter the room was a big-
sized man. She continued to say that the room was quite bright then,
as the sun was rising and there was light coming from the kitchen too.
Jannah was crying and pleaded to the man not to rape her. It was
around this time that Jannah said that she wanted to have a bath. She
was given a towel and this man showed her the bathroom. In the
bathroom, Jannah noticed that she was bleeding. When she returned to
the room Jannah also claimed that Muzaffar had threatened to kill her
if she told anyone about the incident. She had screamed and heard a
voice from outside the room telling her to keep quiet. She was raped
and Muzaffar had ejaculated on her. This was a vivid description of
the incident, with clear recollections of her going for a bath, aware
that she was bleeding, her scream and the threat made to her by
Muzaffar. She could clearly identify him as he was the person who
showed her the bathroom. He was identified as the 3 rd accused in
court during trial and at an identification parade held.
4 th appellant – Aiman, SD4
[15] The fifth man to rape her was Aiman. He had entered the room
and requested her for sex. He told her that he would be the last one.
Jannah claimed that Aiman had put on a condom and had sex with her.
She was able to see Aiman clearly as the room was bright and could
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describe him well. She only knew that he was called Aiman after he
texted her a few days after the rape. Pursuant to this, she had named
him in the police report (P3) lodged by her on 18.5.2017. He was
identified as the 4 th offender in court during trial, who was seated
outside the dock (as he was a child) and at an identification parade
held.
The sixth man
[16] Another man entered the room after Aiman had raped Jannah.
According to Jannah, she was already weak and the man continued to
spread her legs and penetrated Jannah. The man left the room and he
left the room door ajar. After this, Jannah fell asleep. She was unable
to describe or identify this man, as at that point of time she was worn-
out.
Post-rape events
[17] During examination in chief of Jannah, she recounted that after

the sixth man had left the room, she fell asleep. When she awoke,
Boboy, Zakwan and Aiman entered the room. It was 9.00 -10.00 am
and Jannah knew this, as she had asked the time from the men. Jannah
said that she had her bath again and requested for her clothes and
hand phone. With her hand phone, she texted on WhatsApp to Shikin,
to take her home. It was also in the room that she had eaten Maggi
mee. Later, Boboy was on a video call with Shikin. During the video
call, Boboy had also pointed the phone at Jannah.
[18] Jannah had requested that Shikin took her home but she was told
that someone else would pick Jannah up later. The men at house were
unable to send her home on the pretext that there was no motorcycle
at that time. Eventually, Shikin had her friend to pick up Jannah.
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Jannah was accompanied by Aiman to a meeting point (Petron) where

she met the man whom Shikin had asked to fetch Jannah home.
[19] Among the notable points after the rape were that Jannah had
her bath, eaten Maggi mee, the video call took place and arrangements
were made to send Jannah home. All these points were also put forth
by the men, with the only difference was that the Maggie mee was
eaten in the room instead of the living room as claimed by the men.
There was also testimony by them, stating that they were unsure that
Jannah had her bath at the house.
[20] Moving away from the immediate post events of the rape, the
following day, Aiman texted Jannah about a silver bracelet which
belongs to her, was with Boboy. Jannah’s sister (SP6) had read the
message and later told her mother (SP5) about it. This message was
important as it triggered the events leading to Jannah making a police
report on the rape. It was because of the message that Jannah’s mother
had insisted that Jannah lodged a police report. The report was lodged
(P3), slightly more than two months after the rape incident.
[21] A week after the rape, Boboy came to Shikin’s house and
apparently this was followed by more visits. In one of these visits,
there occurred an altercation between Boboy and Jannah’s mother
about the rape. This incident was denied by Boboy where he
maintained that he had never spoken to Jannah’s mother at all.
The conviction
[22] The Sessions Court Judge (SCJ) found the three accused persons
guilty and convicted them, and also found the fourth offender guilty,
principally on the following grounds:
(i) credible and reliable evidence by the victim which is

overwhelming;
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(ii) the victim’s demeanour as to the mode and manner in

which she carried herself in court during testimony.
(iii) positive identification of the four accused persons;
(iv) mere denial from all the four accused persons.
Credibility and reliability of the victim
[23] The testimony by the victim was clear, lucid and detailed, thus
her account is credible. She did not waiver or change her story
although she was questioned and challenged by the defence on her
evidence. Her long and vivid description of the events on that day
were consistent and elaborate. The victim was able to provide
description of the four men who had raped her and elaborated on the
sexual acts which included the moments before and after penetration
took place. More importantly, she was able to remember the sequence
of the men who had raped her. It began with the:
(i) 3 rd appellant, Boboy, SD3; followed by
(ii) 1 st appellant Zakwan, SD1;
(iii) an unidentified third man;
(iv) 2 nd appellant Muzaffar, SD2;
(v) 4 th appellant Aiman, SD4; and
(vi) an unidentified sixth man.
Because of the circumstances she was in, she was unable to identify
the 3 rd and 6 th men who raped her. For the 3 rd man, her memory was
vague as she was tired after two men had raped her. In fact, after that
she had freshened up by having her bath. As for the 6 th man, Jannah
was too tired to observe in order to have identified him.
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[24] The victim was able to provide details of the place where the
rape took place in a house in Sungai Siput. The astute description
included details of the sexual acts, especially the penetration by the
men, the arrangement of the room, her bodily positions, and the
changing and direction of light in the room as the rape took place
from the early hours in the morning to sunrise. This can only mean
that she was in the room and went through the ordeal.
[25] The emphasis here is that Jannah who had not met any of the
four appellants before, was able to identify them, both at the
identification parade and in court during trial. In this regard the SCJ
who had the advantage of audible evidence, had summed up
succinctly in her judgment on the credibility and reliability of the
victim in the following terms:
“[15] Didalam kes ini saksi utama adalah mangsa kejadian

sendiri iaitu SP1. SP1 telah memberi keterangan secara bersumpah di
mahkamah. Semasa memberi keterangan di mahkamah, mangsa telah
pun berumur 17 tahun dan saksi ini juga sedang belajar di sebuah
kolej di dalam jurusan berkaitan operasi sistem computer. Selain itu
sebagai hakim perbicaraan saya berpeluang meneliti kredibiliti saksi
ini di sepanjang tempoh beliau memberi keterangan di mahkamah.
Saya dapati saksi dapat mengingati dengan jelas kejadian yang
berlaku. Keterangan yang diberikan adalah terperinci dan tidak
tersangkut-sangkut terutama apabila menceritakan siapa lelaki -lelaki
yang telah merogolnya dan juga apabila menggambarkan keadaan di
tempat kejadian. Oleh itu saya berpendapat saksi ini adalah saksi
yang credible dan keterangannya boleh dipercayai. Sekiranya mangsa
mereka-reka atau mengada-adakan cerita, sudah pasti dia tidak akan
dapat memberikan keterangan dengan terperinci bagaimana kejadian
persetubuhan itu boleh berlaku. Mahkamah juga dapati mangsa tidak
goyah, menggelabah dan keterangannya tetap sama dan utuh dengan
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keterangan yang diberikan semasa pemeriksaan utama walaupun

mangsa disoal dan dicabar berkali-kali oleh peguambela.”
[26] In sum total, it can be concluded that the victim’s evidence is

reliable and she has emerged as a credible witness. The reliability of
the evidence is demonstrated by the same response which she had
afforded in open court at every point of questioning, which is akin to
a clock which tells the time accurately.
Contradictions and inconsistencies in evidence by the

appellants/accused persons
[27] There were contradictions with the witness statements made by

the accused persons and their testimony in court. All the four accused
persons had made conflicting statements and from this, it can be
gathered that their story was made up and as the SCJ had surmised
that it appeared to be an afterthought on their part.
[28] On the eventful night, the rape by the four men did take place
with each one of them going into the room separately. Hence, their
account of what allegedly transpired in the living room where they
supposed to be chatting, using their hand phones and watching
television did not hold water, leading to conflicting accounts of
events in the living room.
[29] There were however events which did take place that were
reported by the men and Jannah. For instance, Jannah had her bath
and when they all had Maggie mee later that morning. These incidents
were also narrated by Jannah but in differing contexts. For the men,
Jannah had her bath because she had the smell of smoke on her and in
Jannah’s case, she took her bath after the 3 rd man had raped her and
also later in the morning after the ordeal. On this score, some of the
accused persons were also not sure if this took place.
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1 st appellant – Zakwan, SD1
[30] Contradictory evidence by Zakwan on the points whether Jannah

had her bath and Muzaffar had cooked Maggie mee. In his witness
statement he had stated that Jannah had her bath but when re-
examined by defence, he said that he did not know.
2 nd appellant – Muzaffar, SD2
[31] He had stated in his defence that Shah Iskandar (SD5) had
borrowed Boboy’s (3 rd appellant) motorcycle as his motorcycle had a
tyre problem. This differed from the statement from the others where
they stated that Shah Iskandar had borrowed Muzaffar’s (2 nd
appellant) motorcycle. He also did not state that Shah Iskandar and
Hafikri (SD6) had sex with Jannah.
3 rd appellant – Boboy, SD3
[32] Contradictory evidence by Boboy, wherein in his witness

statement, he had said that Muzaffar was the only person in the house
when he arrived there with Jannah. However, on cross-examination,
he replied that Muzaffar and Shah Iskandar were in the house. In his
statement, there was no mention that Shah Iskandar and Hafikri had
entered the room and had sex with Jannah. During cross-examination,
Boboy said that his motorcycle was at the house and Shah Iskandar
did not borrow it, but in the statement, he said that it was borrowed by
Shah Iskandar, hence he was unable to send Jannah home. Also there
were contradictions on the time Jannah went home. When questioned
by the Deputy Public Prosecutor (DPP), he replied, she returned home
in the afternoon, but in his statement, it was stated in the morning,
around 8-9 am. In his statement too, he had said that he was accused
by Jannah’s mother for “makan anak saya” but when asked by the
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DPP, he replied that he had never met Jannah’s mother at all. The SCJ
had noted the demeanour of accused in hesitating to reply when
questioned by the DPP about his interaction with Jannah’s mother.
4 th appellant – Aiman, SD4
[33] He contradicted on whether Jannah had her bath or otherwise at

the house. In his statement, he was sure that she had, while when
questioned in court he said that he was unsure of this.
[34] All the accused persons, save for Aiman had stated that Shah
Iskandar and Hafikri did come by the house and invited them to watch
illegal racing in Ipoh. None of them wanted to go as they claimed.
After that Shah Iskandar and Hafikri left for Ipoh. What is pertinent
here is that there was no mention of Shah Iskandar (SD5) and Hafikri
(SD6) having sex with Jannah before they left for Ipoh. Only Aiman
had reported that they had sex with Jannah, but he was unsure of the
sequence.
Denial by the appellants/accused persons
[35] All of them denied they had raped Jannah. Their accounts of the
incident did not match the evidence given by the victim. There are
loopholes in their witness statements and testimonies in court which
could mean that they made up the events to cover the rape. Certain
elements such as, Jannah having her bath and all of them eating the
Maggie mee did happen, only the time and place these took place
differed.
[36] Their defence has been a mere denial of the rape on SP1. When
denying the factum of rape, they have attempted to paint a neutral
picture of the timing of events on the day in issue when SP1 was with
them. They tried cleverly to state that they were aware as to her
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presence at the abode but they just chatted with her, allowed her to
have her bath, provided her with a meal of noodles. Other than that,
all of them had stated they fell asleep after the chat and left the scene
after that. It was only Aiman, the 4 th appellant, who had stated that he
saw SD5 and SD6 entered the room where SP1 was in, to have sex
with her, but he did not witness the sexual act. As for the timing when
they left the place; who cooked noodles for SP1; and who had
borrowed whose motorcycle in order to leave the place; were riddled
with inconsistencies and contradictions. Such inconsistencies and
contradictions do not augur well for them as it does not in any way
fortify their defence of mere denial but in fact lends credence to the
case of the prosecution vide evidence of the victim SP1, rendering it
to be intact and unrebutted by the defence.
[37] Their only consistency with the testimony of SP1 is Boboy’s

(SD2) subsequent conduct to speak to Shikin (SD7) and inform her
that SP1 wishes to go back home. This is further confirmed by Aiman
(SD4) who had escorted her out of the house to the place where the
friend of SD7 had fetched SP1. Hence the defence advanced by the
four appellants does not dislodge the case of the prosecution. (See the
case of Ling Tee Huah v. PP [1982] 2 MLJ 324).
[38] Thus the SCJ has not misdirected herself, when she decided that
the defence was an afterthought by all four accused persons.
Juxtaposed with the overwhelming evidence by SP1, it is apparent.
When concluding so, the SCJ has also considered all relevant factors,
including credibility and demeanour of SP1 as well as positive
identification of each and every one of them by SP1.
Medical Evidence
[39] SP7, Dr Haema, a paediatrician at Hospital Raja Permaisuri

Bainun, Ipoh and SP8, Dr Nilawati, an obstetrics and gynaecology
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expert from the same hospital testified. SP8, stated, upon physical
examination of Jannah on 23.5.2017 found that she had two old
hymen tear. The size of the tear was wide (lebar). The doctor
described the tear as such from 1-5 and 8 -11 0’ clock (see P16), and
the tear could be attributed to the penetration of a blunt object, like
penis. The conclusion that examination and findings are conclusive of
sexual abuse in the medical report (P15) further fortifies the findings
made by SP7 and SP8.
Bad character evidence
[40] The attempt by the defence to paint the victim as a person with
loose character was weak. The screenshots of Jannah’s WeChat where
she is alleged to have had suggestive pictures with remarks that she
offered sexual services in return for money is inadmissible pursuant to
section 146A of the Evidence Act 1950 (Act 56).
[41] The attempt by the defence is to use it as an overriding

framework to put forth that Jannah was promiscuous and the rape on
her was her own doing given this background. It is a fact that Jannah
was a child and she had been sexually taken advantage of by the four
accused persons. Considering the fact that there is no possible way to
verify that the pictures were from her, although the WeChat account
belonged to her and that there was no tempering done by others, (see
IDD5; IDD13 (A –H)), it remains inadmissible as it also contravenes
section 146A. Moreover, the fact that the victim SP1, testifying at the
trial, even for the sake of argument, has a generally immoral character
and the intention of the accused persons to introduce as their defence
that she was likely to have consented to sexual intercourse is
irrelevant and inadmissible for the purposes of impeaching her
credibility, as she is a child below 16 years of age, and as to whether
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the sexual intercourse was with or without her consent, is immaterial

under the law. (See section 375(g) of the Penal Code, Act 574 (PC)).
[42] Section 146A deals with the restriction on the evidence and the
questions that may or may not be asked in a rape trial, like the present
case. The provision renders it impermissible to tender evidence or ask
questions concerning the sexual activity of the complainant with any
other person, other than the accused. The exceptions to the rule are
laid down in section 146A (a), (b) and (c), which is inapplicable to
the present case. Section 146A would encompass a situation in the
present case wherein, the offer of sexual services as alleged could be
to persons, other than the accused persons, hence such evidence is
inadmissible. The offer of sexual services by her, as alleged could not
possibly be made to the four appellants, as the unfolding of the
narrative clearly shows that she was brought into the house by Boboy,
SD3, confined in the house, her clothes taken away from her, then the
four appellants had satiated their lust over her and finally allowed to
go home. The narrative does not sync with an offer (willingly) for
sexual services by SP1 to them.
[43] In the premise, their defence falls as a pack of cards. What is

left is the factum of rape, which is denied too. The appellants cannot
be blowing hot and cold, on one hand stating that SP1 allowed the
sexual intercourse with them and on the other hand stating that the
rape on her did not take place. Their denial of the rape too, falls as a
pack of cards, on the face of the positive and overwhelming testimony
of SP1, which remains unrebutted till end of the defence case. It is
also stark that the crime committed on SP1 is statutory rape.
The Impeachment
[44] In his witness statement, Shah Iskandar (SD5) claimed that he

had picked up Hafikri (SD6) and had gone out. At about 3.30 am on
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the said date they stopped by at the rented house. There he met Jannah
at the house. He and Hafikri chatted with Jannah and later Jannah
invited them to have sex. Shah Iskandar and Hafikri admitted having
sex with Jannah in the room. After they had sex, he and Hafikri left
for Bulatan Meru.
[45] Shah Iskandar had stated that his friends, Zakwan, Boboy and
Muzaffar were asleep in the living room, except for Aiman who was
awake.
[46] Hafikri’s (SD6) witness statement was the same as Shah

Iskandar, which essentially states that they had met Jannah at the
house, chatted with her and later were invited to have sex with her.
After sex, they rested for a while in the living room to have a smoke.
Then, they left for Bulatan Meru.
[47] Under cross-examination, SD6 admitted he had lewd chat with

Jannah and Jannah had asked him and SD5 to have sex. He declined
and asked Shah Iskandar to enter the room with Jannah. After Shah
Iskandar, Jannah invited Hafikri for sex in the room. He too claimed
that his friends Zakwan, Boboy and Muzaffar were asleep in the living
room during that time.
[48] Both Shah Iskandar and Hafikri’s witness statements were brief
and identical which opens questions to its reliability.
[49] An impeachment proceeding was pursued against SD5 and SD6,

premised on their previous inconsistent statement, each one of them
had made to the police under section 112 CPC. The 112 statement (see
P17 and P18), was put to them in cross-examination to challenge their
credit if the inconsistency will affect their credibility as witnesses for
the defence. In court both testified to paint a picture to the court that,
only both of them had sex with SP1, whereas the other four appellants
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have got nothing to do with SP1. By doing so they had in fact made an
attempt to fortify the denial by the four appellants of the rape on SP1.
[50] But in their respective 112 statement, pursuant to the parts

revealed to form the subject matter of the impeachment proceeding, it
is apparent that they both have given clear details on the sequence of
their turn together with the four appellants, when they raped SP1. In
fact, the sequence syncs with SP1’s testimony. But on impeachment,
they both had stated in their explanation, that the statement was
procured under threat and force. This allegation was rebutted
successfully by the prosecution when the DPP had called the
recording officer, Khairul Fikri bin Mat Rani as well as the
succeeding Investigation Officer, Mohamad Faiz bin Mohamad. Hence
their credibility stands impeached, as they have flatly contradicted in
their testimony in open court under oath. It is noteworthy that, even
for the sake of argument, both SD5 and SD6 were threatened or forced
to give a 112 statement, the said threat and force would not extend,
for the recording officer to force them to state the sequence of the
men who had raped the victim. The statement pertaining sequence of
the men who had raped SP1, can only come from their own memory,
as they were there at the scene of crime when the rape took place.
[51] Furthermore, statement made by them under section 112 CPC, is

fortified by built in safeguards under the law. The statement has to be
the absolute truth, and if otherwise they can be prosecuted for perjury;
they have the liberty to refuse to answer any questions put to them or
to make a statement if the effect would be self-incriminating them.
They have been told of it before the recording takes place.
Additionally, they have the opportunity to correct their statement if
they wish to, before placing their signature on it so as to allow any
corrections to be made. Hence if they had reservations (be it
threatened, forced) on the content of their statement to the recording
officer, they could have corrected themselves. (See section 112(2),
20
(3), (4) and (5) CPC). This obviously did not take place. In that
regard, the SCJ has correctly embarked on the impeachment
proceeding which was anchored on their 112 statement.
[52] An express ruling on impeachment could have been made at the

conclusion of trial, when there was finding of guilt and conviction of
the three accused persons and finding of guilt of the 4 th offender, who
is a child. The SCJ instead, made the ruling only in her grounds of
judgment. I view this as not fatal, as the express ruling which is made
in the judgment is followed by an explanation and assessment as to
why she had impeached the credibility of SD5 and SD6 as defence
witnesses for the accused persons. The ruling made only in the
grounds of judgment does not constitute an error of law or procedure.
The use of the 112 statements to impeach the credit of SD5 and SD6,
was part of the cross-examination by the prosecution and it does not
call for any special ruling at that stage. (See the case of Somwang
Phatthanasaeng v. PP [1992] 1 SLR 850). Moreover, it has not
prejudiced the appellants, as the ultimate ruling is contained in the
judgment. Suffice to say, that the SCJ had painstakingly followed the
impeachment exercise step by step whereby, she had made a ruling on
the material contradiction preceding the impeachment proceeding,
confirmed that the 112 statement was recorded from SD5 and SD6,
followed by questioning of both SD5 and SD6 and thereafter they
were given their right to be heard before being judged on their
credibility, by explaining their basis for contradiction. In that regard,
the impeachment proceeding is procedurally compliant. (See section
145(1) read together with section 155(c) Act 56; Dato Mokhtar bin
Hashim v. PP [1983] 2 MLJ 232, FC; Muthusamy v. PP [1948] 1 MLJ
57). In the premise, the rejection of their testimony ab initio is
justified.
[53] With the rejection of the testimony of SD5 and SD6, whom had
purportedly supported the explanation by the four appellants, there is
21
only left the denial by the four accused persons, SD1, SD2, SD3 and
SD4. But, what is plain and obvious is the credible, overwhelming and
substantive evidence of the victim, SP1, against the four appellants,
thus strengthening the charge against them.
The Appeal
[54] Before me, however, the conviction has been attacked on a

number of grounds. In sum total, the defence counsel had argued that
the SCJ had misdirected herself on the facts and law when convicting
the first three appellants and finding the fourth appellant guilty.
The Charge
[55] It was contended by the defence, in effect, that the charge

against the appellants is bad in law, as it does not correspond with
section 375(g) of the Penal Code (Act 593) (PC), which entails that
rape which took place with or without the consent of the victim, ought
to be mentioned in the charge. This argument does not hold water, as
section 375 of the Penal Code, describes what constitutes an offence
of rape under the law. Section 375(g), specifically, refers to the
situation whereby, if the victim is under age, below 16 years old, as in
the present case, the issue as to whether the sexual intercourse did
take place with or without her consent is immaterial. This is so as the
law forbids sexual intercourse with a minor. Thus if sexual
intercourse takes place on a victim, who is a child below 16 years old,
it is deemed to be statutory rape.
[56] Further section 152(2) of the Criminal Procedure Code (Act

593) (CPC), provides that if the law which creates the offence gives it
any specific name (like rape on the facts of the present case), then the
offence may be described in the charge by that name only, which is
22
exactly what the prosecution has done. Since the description of the
offence is found in section 375 of the PC, it is not necessary for the
prosecution to further state details as found in that provision.
Reference to the offence as rape, suffices.
[57] Moreover, as provided for in section 152(5) CPC, the fact that
the charge made is equivalent to a statement that every legal condition
required by law to constitute the offence charged, which is statutory
rape in the present case, has been fulfilled. Hence, when the
prosecution has deemed it fit to prefer charges of rape against the four
appellants on a child victim, who is below 16 years of age (specified
in the charge), each and every legal condition constituting an offence
of statutory rape under section 375(g) PC, is made out. The element of
consent is never a material ingredient to be proven by the prosecution,
since section 375(g) PC dictates that it is an offence per se to have
sex with a minor, as in the present case.
[58] After having made reference to section 376(2)(d) PC, in

comparison with section 376(2)(e) PC, it was argued that the
appellants have been prejudiced as the charge preferred against the
appellants does not state whether the sexual intercourse with SP1,
took place with or without her consent. It was contended that section
376(2)(d) PC is triggered only when rape is committed on a victim
under 16 years of age, without her consent, thus the issue of consent
is relevant, whereas in section 376(2)(e) PC, which specifies that
whoever commits rape on a victim who is under 12 years of age, with
or without her consent, shall be punished, thus the issue of consent is
irrelevant. In this regard, the defence had argued that the appellants
are entitled under the law to advance defence of consent by SP1, the
victim, when the sexual intercourse took place.
[59] Surveying section 376(2) PC, it is stark that the provision caters
for instances of aggravated rape which is punishable with an enhanced
23
penalty (from that under section 376(1) PC). It is aggravated rape,

because section 376(2)(a) to (k) specifies instances which are extreme
circumstances under which the offence of rape is committed. This
includes rape on a victim who is under 16 years of age, without her
consent, which is punishable with a minimum period of 10 years’
imprisonment and maximum period of 30 years’ imprisonment and
whipping. However, the offence of rape involving a minor, under 16
years of age, with or without her consent, is covered by section 375(g)
PC and punishment for that offence is provided for under section
376(1) PC, as in the present case.
[60] The appellants are not prejudiced, since the substantive offence
of rape is still committed if the child victim is under 16 years of age,
with or without her consent. For that reason, the prosecution has also
decided to prosecute the appellants for the offence of rape on the
victim, SP1, who was 15 years 10 months old, thus punishable under
section 376(1) PC.
[61] The prosecution has also deemed it fit to prosecute the accused
persons under section 376(1) PC, premised on the viva voce evidence
available. This is in tandem with the powers of the Public Prosecutor
exercisable at his discretion, pursuant to Article 145(3) of the Federal
Constitution. It is apparent, that rape had taken place on the victim
who was a minor at the material time, forced with sexual intercourse
by the four accused persons in succession. It is force and against her
will, as the victim was brought to the house where she was confined,
her clothes and hand phone taken away, leaving her helpless, before
they satiated their lust over her, one by one. Thus, rape has been
committed on a minor who is under 16 years old, which is punishable
under 376(1) PC. Moreover, the defence is not precluded from raising
the defence of consent, which they did, but the facts and
circumstances of the case, as well as the evidence available (as
24
alluded to in the course of this judgment), does not support such a

defence.
[62] On the charge too, as for the 4 th appellant, involving a child, it

is contended that the punishment applicable for a juvenile is not
stated in the charge. It is trite, pursuant to section 152(4) that the law
and section of the law against which the offence (the punishment
provision) is said to have been committed shall be mentioned in the
charge. The prosecution has stated the offence of rape committed by
the 4 th appellant is punishable under section 376 (1) PC. But since the
4 th appellant, at the material time of finding of guilt and sentence is a
juvenile, the sentence meted out against him has to be in accordance
with section 91 of the Child Act 2001 (Act 611). It is apparent that
the court is fully aware of the applicable sentencing provision to this
particular appellant. The probation report prepared by the Social
Welfare Department officer alludes to the same, when reference is
made to section 91(1)(f) of Act 611. The 4 th appellant who was
represented by counsel at the material time is fully aware of the
provision, as plea in mitigation was also directed to that provision.
With all that, the prosecution has been in full compliance with the law
and the 4 th appellant has not suffered any prejudice or injustice.
Indeed, he has been sent to Henry Gurney school till he attains the age
of 21 years.
Child evidence and the need for corroboration
[63] In criminal cases, like present, children are competent to give

unsworn testimony even though they do not understand the nature of
the oath, so long as they are possessed of sufficient intelligence to
justify the reception of evidence and understand the duty of speaking
the truth. (See section 133A Evidence Act 1950 (Act 56)) The question
whether a child has the necessary intelligence will be determined by
25
the judge. Children who understand the nature of an oath are

competent to give sworn testimony. The test is whether the child has
sufficient appreciation of the seriousness of the occasion and a
realization that taking the oath involves something more than the duty
to tell the truth in ordinary day to day life: R v. Hayes [1977] 1 WLR
234.
[64] It is trite as how to deal with a child witness and the rules of
evidence applicable are explicit. The law is found in section 118
Evidence Act 1950 (Act 56) which prescribes all persons, including a
child, are competent to testify, unless the court considers that they are
prevented from understanding the questions put to them or from
giving rational answers to those questions. Thus, the trial judge has to
determine a child’s competency to testify by ensuring that she
understands the oath she takes. If she is able to understand, then the
child may pursue with her testimony. If she is unable, then the trial
will proceed with her unsworn testimony.
[65] The child must be able to differentiate between telling the truth
and untruth in court and if she is untruthful, what could be the
consequence. In that regard, a sieve through the questions posed to
SP1, in this case by the DPP during examination in chief demonstrates
that she is fully aware that she is testifying in court and know that she
has to speak the truth. In cross-examination, she has testified that she
knows of the effect of not telling the truth. It is apparent from the
record, that SP1 understands the sanctity and effect of the oath taken.
She too knows of the effect of not telling the truth in the witness box.
The effect of the oath taken by SP1 is strengthened by her steady and
vivid testimony. The trial judge was convinced of SP1’s competency,
thus she was allowed to testify. Premised on those factors, SP1 is both
a competent and credible witness. The answers rendered by her is
commendable as she could very well recollect what has happened to
her with no uncertainty. This coupled with her consistency in
26
testimony which only leads to the conclusion that her evidence is

rightly accepted and admitted by the trial judge.
[66] By virtue of the appropriate questions asked and the correct

answers given by SP1, the competency of SP1 is not in doubt for the
court to opine otherwise, thus the court is justified when it ruled that
she is a competent witness to the dastardly crime on her. (See the case
of Rameshwar v. State of Rajasthan AIR [1952] SC 54; Kee Lik Tian
v. PP [1984] 1 MLJ 306).
[67] There is no rule of law that in sexual offences the evidence of

the complainant must be corroborated. But if the evidence of the
victim is unusually convincing, it would be safe to convict. The SCJ
arrived at the conclusion after combing through the evidence of the
victim with a fine tooth comb wherein she had, mentioned in details
each strand of evidence of SP1, before she concluded that she is both
credible and reliable. Based on the credible evidence of the victim,
the SCJ has concluded that there is no reason for SP1 to falsely
accuse the accused persons. This is found as a fact by the SCJ after
considering the evidence in totality. (See the case of PP v. Mardai
[1950] 16 MLJ 33).
[68] It would of course be illogical to expect corroborative evidence

of the ordeal the victim has suffered throughout the wee hours of the
morning on 4.3.2017, as it was her presence alone, confined, with the
six men and nobody else. Hence what kind of independent evidence is
expected in such a situation. This is where the SCJ has aptly found the
following:
“[14] Sememangnya di dalam kes-kes kesalahan seksual amat

sukar untuk mencari saksi bebas yang melihat sendiri kejadian kerana
kes-kes persetubuhan/perhubungan seksual selalunya akan dilakukan
oleh OKT di tempat yang secara sulit atau bersembunyi dari
pengetahuan orang lain. Oleh itu bagi membantu mahkamah di dalam
27
membuat keputusan, mahkamah perlu meneliti semua keterangan yang

dikemukakan oleh pihak pendakwaan dan juga keterangan -keterangan
senyap yang lain seperti gambar-gambar dan dokumen-dokumen
sokongan seperti laporan perubatan.”
[69] To that end, the medical evidence proffered by SP7 and SP8,
supported by P15 and P16, as alluded to above, is to be regarded as
strong independent and corroborative evidence of the sexual abuse
which had befallen the victim, SP1. In the case of Syed Abu Tahir a/l
Mohamed Esmail v. PP [1988] 3 MLJ 485, it was decided that on a
charge of statutory rape (as in the present case), where lack of consent
is irrelevant, medical evidence showing any fresh tear in the hymen
may be sufficient to corroborate the evidence of the victim on the
factum of rape. In the present case, it is not a minor tear, but a wide
tear from 1-5 and 8-11 0’ clock (see P16), which in fact syncs with
the ordeal SP1 has gone through.
[70] The other piece of corroborative evidence in this case is the

police report, P3, lodged by SP1. There have been accusations hurled
that it was in fact a report lodged at the behest of her mother SP5. But
the fact remains that it consists of allegations of rape which has
befallen her, and it would be only her who could tell the police as to
the ordeal she has suffered in the hands of the six men. Her mother
had only advised her to lodge the said report. She has been so honest
when she admitted at that point of time that she could only identify
the 4 th appellant, Aiman, as he had messaged her (as alluded to above)
after the incident, and not the others. The names of the others were
not known to her, as for all intends and purposes, they were strangers.
It was only at the Identification parade and in court during trial, she
could positively identify them as the men who had raped her in
succession. Although the police report was lodged late, after about
two months plus, she had an explanation for it. Her explanation was
that she was traumatized by the ordeal and only after her sister SP6
28
had sighted the message sent by Aiman (SD4), which her mother SP5
came to know of it subsequently, then she lodged the said report, after
the mother had told her to do so. This does not amount to any motive
on her part to wrong the appellants, but it is her reaction to the whole
episode that had led her to behave in that manner. The delay has been
sufficiently explained by SP1 in her testimony, which stands
unrebutted and I do not see any reason why it should not be accepted.
P3 also serves as corroborative evidence pursuant to section 157
Evidence Act 1950. (See the case of Lim Guan Eng v. PP [1998] 3
MLJ 14).
Identification of the appellants/accused persons
[71] Since the sexual intercourse with the victim was in succession
by six different men, evidence as to their identification by the victim
is paramount. It cannot be lacking. It is emphasised that the victim’s
evidence of identification which forms part of the prosecution case is
based on her recollection which is of good quality. (See the case of
Heng Aik Ren Thomas v. PP [1998] 3 SLR 465). In this regard the SCJ
has also found the following –
“[20] Mahkamah seterusnya merujuk kepada keterangan mangsa

semasa perbicaraan berkenaan identiti lelaki -lelaki yang telah
merogolnya. Mangsa bukan saja dapat mengecam OKT-OKT semasa
proses kawad cam di balai polis tetapi juga di mahkamah.
Keterangan-keterangan mangsa jelas menunjukkan bahawa mangsa
dapat mengenalpasti setiap lelaki yang telah merogolnya pada tarikh
dan masa kejadian memandangkan mangsa berada di rumah itu dalam
masa yang lama iaitu dari waktu malam sehinggalah ke siang hari
keesokan harinya. Oleh itu mahkamah berpuas hati bahawa mangsa
telah dapat mengecam setiap lelaki yang merogolnya dengan baik
iaitu OKT-OKT yang telah dituduh di mahkamah bagi kes ini. Mangsa
29
mengatakan terdapat 6 lelaki yang telah merogolnya pada tarikh

kejadian tetapi mangsa memang tidak dapat mengecam lagi 2 orang
lagi lelaki yang merogolnya kerana memang dia tidak nampak wajah
mereka kerana pada masa itu dia sudah berada dalam keadaan lemah
dan tidak sihat oleh itu dia membiarkan sahaja perlakuan 2 lelaki
yang lain itu kepadanya. Sekiranya mangsa berniat untuk menganiaya
OKT-OKT tentu dia akan mengatakan bahawa dia juga mengecam 2
lelaki lain yang merogolnya walaupun dia tidak melihat mereka. Oleh
itu mahkamah berpendapat keterangan mangsa adalah boleh
dipercayai dan bukan sengaja dibuat untuk menganiayai atau
memfitnah OKT-OKT. Lagipun OKT-OKT bukanlah orang yang
pernah dikenali oleh mangsa sebelum ini sehingga menyebabkan
mangsa berdendam ataupun ingin melakukan sesuatu yang buruk
kepada mereka. Malah hari kejadian adalah hari pertama mangsa
bertemu dengan OKT-OKT…”
[72] The above finding by the SCJ is premised on the weight of

evidence available. When Boboy (the 3 rd appellant – SD3) raped her,
the room was not dark, so she could see him clearly. He was with her
for an hour. He was the one who ferried her to the house. He took
away her clothes and hand phone and left the room after the sexual
connection with her. An inference could be drawn here, that by doing
so, he had paved the way for the remaining men to satiate their lust on
her, which in fact took place as such, as she was crying for her clothes
to be returned.
[73] As for Zakwan (the 1 st appellant – SD1), she could describe him
so well, as to his sharp features. He had spoken to her for about half
an hour before the sexual intercourse with her.
[74] She is able to identify the 3 rd appellant (Muzaffar – SD3) as he

showed her the washroom and provided her with a towel to freshen
up. Thereafter he had use force to rape her. He had even threatened to
30
kill her if she opens up on the episode to anyone. She could also
remember him by the big size of his body.
[75] She was so clear of the 4 th appellant (Aiman – SD4) as he had

used a condom to have sexual intercourse with her. He had repeatedly
said to her, that he would be the last one to do so. After the event he
had messaged her to inform her of her bangles left behind by her at
the house. In the said message, he had even sought apology from her
as to what he did to her. He had even taken her out of the house to
meet the person who is to ferry her back home. In court, she is able to
describe him so well, as he was sitting outside the dock, as he is a
child.
[76] It is a fact that she could not identify the 3 rd and 6 th men who
had raped her. It is apparent from the above, that this is only expected
as she was raped not by one but six men successively. After the 2 nd
man (Zakwan), she was tired as she was seeking out to have a bath.
Thus when the 4 th man (Muzaffar) came in, he had shown her the
bathroom for her to freshen up. It only goes to show she was tired
after the 2 nd sexual intercourse, considering the fact that she was not
well when she came into the house from outside. Thus, she was unsure
of the 3 rd man. After five men had raped her in succession, it is only
natural that she was extremely tired, as she has testified, hence the
non-identification of the 6 th man. But the fact remains that she is able
to identify the four accused persons’ in court and prior to that at the
identification parade after the whole ordeal that has befallen her.
Moreover, they were the four men who were at the house, after the
whole incident, whom attended to her by allowing her to take her bath
and providing her with noodles to eat.
[77] The above falls squarely within section 60 (1) Evidence Act
1950 (Act 56), as identification of the appellants came about from her
own senses of sight as to the ordeal she has to succumb to.
31
[78] But of course the other source of supportive evidence is the

identification parade (ID parade) which was conducted during the
investigation phase of the case. It strengthens the prosecution’s case.
The ID parade is necessary in the circumstance of the case as the
accused persons are not previously known to the victim. (See the case
of PP v. Sarjeet Singh [1994] 2 MLJ 290; Jaafar bin Ali v. PP [1998]
4 MLJ 406). The ID parade according to the testimony of SP4, has
been conducted properly so as to allow the victim, if she could,
identify the appellants who were suspects at the material time.
Challenge was mounted on non-compliance with the Inspector
General’s Standing Orders. It has to be borne in mind, that so long as
the process and procedure adopted at the ID parade is fair and just and
it has not prejudiced the accused persons, any issues raised would be
meaningless. The ultimate is that the appellants who were paraded at
the ID parade do not stick out like a sore thumb. The standing orders
are only a guide and is not culled in stone, but to be adhered to as far
as possible, as the circumstances render it necessary.
[79] Moreover, there is no written law available on constructing an

ID parade, save that it is a relevant piece of evidence in a criminal
trial pursuant to section 9 of Evidence Act 1950. The procedure
pertaining ID parade which has been complied with in the present
case, syncs with the succinct summary by Vernon Ong J (as he then
was, now FCJ), in the following manner in the case of PP v. Joachim
Selvanathan [2009] MLJU 748:
“(1) All persons at the identification parade should be of the same

ethnic group and same station in life as the suspect. The disparity of
ages between them should not be large. The persons in the line -up
need not be of exactly the same description;
(2) The identification parade must be held at the earliest

opportunity and all available witnesses should be required to attend
32
at the very first parade. Separate identification parades must be held

where there are two or more suspects; (as in the present case – the
emphasis is mine).
(3) The witnesses must not be allowed to see the suspect until the
moment when everything is ready and they walk in to identify him.
The witnesses must not be given prior assistance via photographs or
verbal description;
(4) The suspect should be placed among a number of persons in a

row – not less than nine or ten. The suspect should be invited to stand
where he pleases in the row. He may change his position after each
witness has been called in. He should be asked if he has any objection
to any of the persons present or to the mode of arrangement;
(5) The witnesses should be brought in one by one. Each witness

who has completed the identification parade process should be kept
apart from the witnesses who are yet to com e;
(6) The officer in charge must ensure that the identification parade
is properly and fairly conducted. He must record every circumstance
connected with the identification, the names of the witnesses and their
decisions as fully and fairly and carefully. ”
[80] Any breach of the procedural requirements in holding an

identification parade does not lead automatically to inadmissibility.
(See cases like, R v. Jones (Terence) [1992] Crim LR 365; R v. Ryan
[1992] Crim LR 187). If the parade is conducted fairly, which is so in
the present case, a failure to comply strictly with instructions in the
police orders is not fatal. (See R v. Mei [1989] 4 CRNZ 580).
[81] The outcome of the ID parade, has been that SP1 was able to
identify the four appellants (as alluded to above) positively. The
result of the ID parade is also borne out by exhibit P11 and P12.
33
Conclusion
[82] When finding the appellants guilty of the crime and thereafter
convicting the first, second and third appellant, and finding the 4 th
appellant guilty, the SCJ has been mindful of the burden placed on the
prosecution to prove its case beyond reasonable doubt, and the duty of
the defence is merely to raise a reasonable doubt. The SCJ, by stating
that, the defence was unable to raise a reasonable doubt, hence the
case of the prosecution is proven beyond reasonable doubt, is
obviously another way of stating that the prosecution has in fact
proven the offence of rape against the appellants beyond reasonable
doubt. Her finding is sanctioned by section 173(m)(i) and (ii) CPC,
and further by the direction in Mat v. PP [1963] MLJ 263 and
Mohamad Radhi bin Yaakob v. PP [1991] 3 MLJ 169. Pursuant to Mat
direction, the SCJ believed the witnesses for the prosecution,
specifically SP1 and disbelieved the appellants evidence, and they
have not been successful in raising a reasonable doubt on the
prosecution case. Further pursuant to Radhi direction, the SCJ has in
fact demonstrated the actual application of the test that even though
she does not accept or believe the accused persons’ explanation, they
cannot be convicted until the court is satisfied for sufficient reasons
(as alluded to above) that such explanation does not cast a reasonable
doubt on the prosecution case. Thus, she has properly directed herself
on the burden and standard of proof applicable on the facts and
circumstances of the case. The SCJ had in mind, section 173(h)(iii)
CPC at the end of the case for the prosecution as well as section
173(m)(i) and 173(m)(ii) at the conclusion of the trial, when trying
the appellants for the charge against each one of them.
[83] At the end of the prosecution case, the prosecution had

successfully established a prima facie case against the four accused
persons, by adducing credible evidence proving each ingredient of the
offence of rape. (See section 173(h)(iii) CPC).
34
[84] Alluding to the defence of the accused persons, it was a mere

denial. There is overwhelming evidence of the victim to show that she
was raped by the four appellants. Hence the evidence by the four
appellants which is a pure denial, had failed to raise any reasonable
doubt on the prosecution case. The combined weight of evidence leads
to only one conclusion, that is, the victim Jannah was raped by the
four appellants.
[85] The grounds of decision by the SCJ has conveyed a reasoned

judgment on the facts and the law, thereafter arriving at the findings
and conclusions. She has arrived at correct finding of facts anchored
on the available evidence before her. She had carefully considered the
defence and gave valid reasons for rejecting it, as alluded to above.
(See salient case authorities like Balasingham v. PP [1959] MLJ 193;
Augustine v. PP [1964] MLJ 7).
[86] Premised on the above, the judgment of the SCJ is rooted on a

well-founded basis. As such an appellate intervention is unjustified.
In the premise, pursuant to section 316 CPC, this appeal is dismissed.
Sentence
[87] It is trite law that the sentence meted out by the court shall be in
accordance with law. Hence it has to be in consonance with section
173(m)(ii) CPC as well as the Jafa direction (Jafa bin Daud v. PP
[1981] 1 MLJ 315) wherein, the sentence shall be within the ambit of
the punishment provision under the Penal Code. In this case, it has to
be in accordance with section 376(1) PC. Section 376(1) PC carries a
punishment which may extend to twenty years’ imprisonment and
whipping shall be ordered. The sentence meted out must also be
assessed and passed in accordance with established judicial
principles.
35
[88] The SCJ when passing the sentence has taken into consideration
the right and relevant factors prevalent in the case involving the four
appellants. She was mindful of the fact that the first and third
appellants were youthful offenders, hence Laporan Sosial (see
P21(A), P21(B)) was ordered to be produced and considered.
[89] Further with regard to the fourth appellant who is a child, a

probation report (see P22) was in fact produced in court before
sentence was passed on him. In fact, the consideration of the
probation report by the SCJ is mandated under section 83(4)(b) of the
Child Act 2001. (See also the case of Tukiran bin Taib [1955] MLJ
24). Together with that, the SCJ had also sought the assistance of two
advisers as required under the Child Act 2001 to advise her on the
appropriate sentence to be meted out on him. This syncs with section
83(4)(a) read together with section 90(17) of the Child Act 2001.
[90] After having considered the probation report on the fourth

appellant, as well as the advice from the advisers, and all other
mitigating and aggravating factors, the sentence meted out on the
fourth appellant who is a child, has been in accordance with section
91(1)(f) Child Act 2001. He has been sent to Henry Gurney School,
and to stay there till he attains the age of 21 years old.
[91] The sentence meted out on the first three appellants is a period
of imprisonment of 8 years with variance as to the date it shall take
effect on them. This is consistent with section 282(d) CPC, which
dictates that every sentence of imprisonment shall take effect from the
date on which it was passed unless the court passing the sentence
otherwise directs.
[92] In the premise, the sentence of imprisonment on the first and

third appellant takes effect from the date of conviction, after
production of the Laporan Sosial for each of them, which is on
36
16.11.2018 and 15.10.2018; respectively. The first appellant was 20

years old at date of conviction and the third appellant 21 years old.
[93] Together with the sentence of imprisonment, each of the three

appellants were sentenced to whipping of three strokes each and for
each of them to be subject to the supervision of the police for a period
of two years pursuant to section 295(1A) CPC, which is to commence
immediately after the expiration of the sentence passed on them.
[94] The sentence passed on the first and third appellant is justified
by virtue of section 293 CPC, which provides that when any youthful
offender (see section 2 CPC, which defines, “youthful offender” as
who is of or above the age of 18 and below the age of 21), is
convicted, the court has an option to either to pass a sentence of
imprisonment or instead rely on section 293(a) to (e). The SCJ has
opted to pass a sentence of imprisonment instead.
[95] As for the second appellant, who was 24 years old at the time of
conviction, the same sentence is meted out by the court.
[96] The sentence meted out against the appellants is premised on the
factors which is discussed below.
[97] It is anchored on:
(i) The aim of deterrence so as to punish the appellants so that they

would repent and will not commit an offence again. It is also hoped
that future offenders will be deterred by seeing the punishment meted
out on the appellants. Hence the aim is two-fold; to deter the
appellant himself from committing offences in the future, and to deter
other offenders from committing the same offence, which is regarded
as specific and general deterrence, respectively.
(ii) By imposing the said term of imprisonment, the first, second and
third appellant are also expected to be law-abiding and responsible
37
citizen. It is hoped that incarceration on them, or the clanging of the

prison gates, with them inside, will do them good and they would
have all the time to reflect and change their behaviour and attitudes.
Likewise, for the fourth appellant, when he is detained at Henry
Gurney School.
(iii) Overwhelming consideration is the manner in which the

dastardly crime has been committed by all the four appellants. The
striking features being, rape in succession; victim taken advantage to
satiate their lust; victim confined in the house in the wee hours of the
morning of the fateful day with clothes and hand phone removed; thus
leaving her to be in communicado with her family, relatives and
friends.
(iv) Seriousness of the offence committed by all the four appellants

which is statutory rape involving a child victim who was below 16
years old at the time of incident. Hence the intention of the
Parliament when prescribing a maximum term of imprisonment of
twenty years, which only reflects abhorrence, the society has on such
crimes involving young victims.
(v) Public interest as the paramount consideration, being the

protection of the victim and would be victims from such a despicable
crime as well as for the appellants to turn from criminal ways to
orderly behaviour.
[98] Hence the sentence meted out is fair and just according to the
facts and circumstances of the case. It is also proportional to the
seriousness of the crime committed, so as to promote justice for the
victim and ensures public confidence in the system of justice. In this
context the SCJ had appropriately referred to the case of R v. Ipeelee
[2012] 1 SCR 433 which decided the following:
38
“... proportionality … is not just a sanction. First, the principles

ensure that a sentence reflects the gravity of the offence … it
promotes justice for the victims and ensures public confidence in the
system of justice. Secondly, the principles of proportionality ensure
that a sentence does not exceed what is appropriate, given the moral
blameworthiness of the offender…”
[99] In arriving at a fair, just and proportional sentence on the

appellants, the SCJ has given anxious consideration to the aims of
sentencing; aggravating and mitigating factors; public interest as well
as the proportionality of the sentence juxtaposed with the crime
committed.
[100] In the premise, appellate intervention is unjustified with regard

to the sentence meted out by the SCJ. Thus, pursuant to section
316(b)(ii), the sentence meted out is maintained.
Finding of guilt and conviction under section 376(1) Penal Code,

against the first, second and third appellant maintained. Sentence of 8
years’ imprisonment and whipping of three strokes and order of
police supervision for a period of two years commencing immediately
after the expiration of the sentence passed affirmed. Finding of guilt
under section 376(1) Penal Code, against the fourth appellant
maintained. An order to send the fourth appellant to Henry Gurney
School and to stay there till he attains the age of 21 years is also
affirmed.
Dated: 29 NOVEMBER 2019
(MUNIANDY KANNYAPPAN)
Judicial Commissioner
High Court, Taiping
39
COUNSEL:
For the appellants - Ranjit Singh Sandhu; M/s Ranjit Singh Sandhu &
Co
Ipoh, Perak
For the respondent - Hasyuntantee Khalil Pejabat; Timbalan

Pendakwa Raya, Kuala Kangsar
Case(s) referred to:
Jayaraman v. PP [1979] 2 MLJ 88
Ling Tee Huah v. PP [1982] 2 MLJ 324
Dato Mokhtar bin Hashim v. PP [1983] 2 MLJ 232
FC; Muthusamy v. PP [1948] 1 MLJ 57
R v. Hayes [1977] 1 WLR 234
PP v. Mardai [1950] 16 MLJ 33
Syed Abu Tahir a/l Mohamed Esmail v. PP [1988] 3 MLJ 485
Lim Guan Eng v. PP [1998] 3 MLJ 14
Heng Aik Ren Thomas v. PP [1998] 3 SLR 465
PP v. Sarjeet Singh [1994] 2 MLJ 290
Jaafar bin Ali v. PP [1998] 4 MLJ 406
PP v. Joachim Selvanathan [2009] MLJU 748
R v. Jones (Terence) [1992] Crim LR 365
R v. Ryan [1992] Crim LR 187
40
R v. Mei [1989] 4 CRNZ 580
Mat v. PP [1963] MLJ 263
Mohamad Radhi bin Yaakob v. PP [1991] 3 MLJ 169
Balasingham v. PP [1959] MLJ 193
Augustine v. PP [1964] MLJ 7
Jafa bin Daud v. PP [1981] 1 MLJ 315
Tukiran bin Taib [1955] MLJ 24
R v. Ipeelee [2012] 1 SCR 433
Legislation referred to:
Evidence Act 1950, ss. 9, 60 (1), 91(1)(f), 118, 133A, 146A (a), (b)
and (c), 145(1), 152(4), 155(c), 157, 173(m)(i), (ii), 316(b)(ii)
Criminal Procedure Code 1999, ss. 2, 112(2), (3), (4) and (5), 152(2),
170(1), 173(h)(m)(i) and (ii), (iii), 293(a) to (e), 282(d), 295(1A), 316
Penal Code 1997, ss. 375(g), 376(1)(2)(d)(e)
Child Act 2001, ss. 83(4)(a)(b), 90(17), 91(1)(f)
Federal Constitution, art. 145(3)
41

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[2019] 1 LNS 1908 Legal Network Series

IN THE HIGH COURT OF MALAYA AT TAIPING

IN THE STATE OF PERAK DARUL RIDZUAN, MALAYSIA

[CRIMINAL APPEAL NO: MT AB-42S-18-11/2018]

MUHAMMAD ZAKWAN BIN ZAINUDDIN

(I/C NO: 980326-38-5315)

(APPEAL AGAINST CONVICTION AND SENTENCE)

CRIMINAL APPEAL NO: MT AB-42H-23-11/2018

MUHAMMAD MUZAFFAR BIN TAHARIN

(I/C NO: 950407-08-5499)

(APPEAL AGAINST CONVICTION AND SENTENCE)

MUHAMMAD MUZAFFAR BIN TAHARIN

(I/C NO: 950407-08-5499)

(APPEAL AGAINST SENTENCE)

CRIMINAL APPEAL NO: MT AB-42S-20-11/2018

SYED ISMAIL ARIF BIN SAYED SUHAIMI

(IC NO: 970521-38-5151)

(APPEAL AGAINST CONVICTION AND SENTENCE)

CRIMINAL APPEAL NO: MT AB-42S-1-01/2019

AIMAN BIN AMINUDDIN

(IC NO: 010115-08-0231)

(APPEAL AGAINST CONVICTION AND SENTENCE)

IN THE SESSIONS COURT IN KUALA KANGSAR

MUHAMMAD ZAKWAN BIN ZAINUDDIN

(I/C NO: 980326-38-5315)

IN THE SESSIONS COURT IN KUALA KANGSAR

SYED ISMAIL ARIF BIN SAYED SUHAIMI

(I/C NO: 970521-38-5151)

IN THE SESSIONS COURT IN KUALA KANGSAR

MUHAMMAD MUZAFFAR BIN TAHARIN

(I/C NO: 950407-08-5499)

IN THE SESSIONS COURT IN KUALA KANGSAR

AIMAN BIN AMINUDDIN

(I/C NO: 010115-08-0231)

[2] The four are Muhammad Zakwan bin Zainuddin (Zakwan, 1 st

appellants had appealed. The prosecution too had appealed against

[4] All the four appellants/accused (to be used interchangeably

Events leading up to the meet up with Boboy, the 3 rd appellant,

[8] They arrived at a terrace house at around 2.30 am and Jannah

[9] Below is a narrative of the rape on Jannah and significant points

3 rd appellant – Boboy, SD3

1 st appellant – Zakwan, SD1

The third man

2 nd appellant – Muzaffar, SD2

4 th appellant – Aiman, SD4

The sixth man

[17] During examination in chief of Jannah, she recounted that after

Jannah was accompanied by Aiman to a meeting point (Petron) where

(i) credible and reliable evidence by the victim which is

(ii) the victim’s demeanour as to the mode and manner in

(iii) positive identification of the four accused persons;

(iv) mere denial from all the four accused persons.

Credibility and reliability of the victim

(i) 3 rd appellant, Boboy, SD3; followed by

(ii) 1 st appellant Zakwan, SD1;

(iii) an unidentified third man;

(iv) 2 nd appellant Muzaffar, SD2;

(v) 4 th appellant Aiman, SD4; and