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SLS shocked man let off the hook
Published on: Wednesday, October 09, 2019

KOTA KINABALU: The Sabah Law Society’s (SLS) Human Rights and Women and Children’s Rights Subcommittees expressed alarm that a man charged under the Sexual Offences Act Against Children Act 2017 has been granted a discharge not amounting to an acquittal (DNAA) by the court.

 

The action reportedly followed the withdrawal of the police report by the complainant (mother of the 11-year-old victim) against the 53-year-old accused and that the prosecution received instructions to do likewise. 

The Human Rights Subcommittee co-chairpersons Dominic Ghani, Michelle Usman and Datin Mary Gomez, who is the Women and Children’s Rights Subcommittee chairperson, said this in a joint statement, Tuesday, on the case reported in the Daily Express on Oct 4, this year. 

 They said strictly speaking, a police report cannot be withdrawn by a complainant. A complainant may merely make a written application so that no action is taken against the report lodged, and the final decision lies with the public prosecutor. The power to allow or reject the application should be made based on the facts and circumstances of each case. 

 The SLS states that although it is ultimately up to the public prosecutor to determine whether to proceed with the prosecution of the accused, the decision not to continue to prosecute must be exercised with great caution. 

“If an offence has been committed, the withdrawing of a report cannot take away the offence. The victim of the alleged offence in this matter is underaged and, therefore, it is her interest that is of paramount consideration in this matter and not that of the complainant. 

“The decision not to prosecute at this juncture only creates speculation amongst the public at large as to why the trial or charge against the accused did not proceed. Where there are such concerns, an avenue may be available for the High Court to exercise its powers of revision to enquire as to why a DNAA was recorded,” they said.

The SLS does recognise it is not aware of the full facts and circumstances surrounding this matter. 

However, wherever an alleged offence and especially one of this nature has been allegedly committed, the SLS would strongly urge the public prosecutor to fully and thoroughly investigate the rationale for the intended “withdrawal” before allowing a DNAA to be recorded against the accused. 

“The public prosecutor must be vigilant in this respect before deciding not to proceed with the prosecution of the accused.

“It is to be noted that a recording of a DNAA against the accused does not mean that the matter has come to an end, as it is not a complete acquittal. The accused can be recharged if new evidence surfaces and the public prosecutor decides to proceed with the prosecution,” they said.

When making a police report one must be absolutely certain of the facts and evidence, because if it is discovered that a false report was made, there are severe penalties. 

“Under section 177 of the Penal Code, it is an offence to ‘furnish false evidence’ and under section 203 of the Penal Code, it is also an offence to ‘give false information in respect of an offence committed’. 

“Both these offences are punishable with imprisonment of up to two years or a fine or with both. This only re-emphasises the necessity to identify the cogent and valid reasons why a complainant does not wish to have any further action against an accused if the initial report was genuine. 

“If there are none, the prosecution should and ought to continue. Based on the reporting of this case, the Welfare Department would also be entitled to initiate their own investigation on the mother who reported and thereafter withdrew the same,” they said. 

It was reported that the accused was given a DNAA from a charge of committing sexual abuse against his sister-in-law.

Sessions Court Judge, Noor Hafizah Mohd Salim, gave DNAA to the man after the court was informed that the prosecution had received instruction not to proceed with the case after the mother of the alleged victim withdrew the police report against the man. 

The man was accused of committing the offence against the 11-year-old girl by fondling her breasts, kissing and hugging her on Aug. 4 at 6am at a house in Penampang. 

The offence under Section 14(a) of the Sexual Offences Against Children Act 2017 carries a jail term of up to 20 years and whipping, upon conviction. The man also faces another additional punishment under Section 16 of the same Act which provides for jail term of up to five years, and whipping, upon conviction.  

 



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