Kota Kinabalu: A 22-year-old who was jailed 12 years and ordered to be caned once for raping an underaged girl, was freed of the charge on Monday.
High Court Judge Datuk Nurchaya Hj Arshad allowed Kelvin Chong Hon Lam’s appeal against his conviction and sentence and discharged and acquitted Chong of the charge.
In delivering her ruling on Monday, Nurchaya held that the prosecution failed to prove beyond reasonable doubt the charge against Chong.
Chong was on Feb 28, 2020 sentenced to 12 years’ jail and ordered to be caned once by the Sessions Court here after he was found guilty at the end of his defence of raping the 15-year-old girl at 11pm on March 28, 2017 in an apartment at Jalan Sulaman, Manggatal.
Chong was ordered to serve the sentence from the date of his conviction but he managed to obtain a stay of execution of the sentence pending an appeal to the High Court.
The charge under Section 376(2)(d) of the Penal Code carries a jail term of between five years and 30 years, and whipping, upon conviction.
Earlier, counsel Sylyester Kuan, representing Chong, appealed for the appeal to be allowed and for the appellant be discharged and acquitted.
In his submissions, Kuan submitted among others, on the doubt in respect of the identity of the alleged rapist because their contention was that Chong never committed the offence.
It has been the contention of the appellant since the beginning of the trial that he was not in the room at the material time and that it was another person by the name of ‘Nonong’ who was in the room at the material time, said Kuan.
Kuan also submitted that the complainant was a non-credible witness as she had been inconsistent in her testimony and gave two different versions of testimony and has raised doubt as to the identity of the alleged perpetrator.
He also submitted that the complainant also gave an inconsistent description of the rapist’s dressing.
Meanwhile, in the Sessions Court, two foreigners were jailed for staying in the State illegally.
Ting Tatu and Arafat Tiwana pleaded guilty before Judge Azreena Aziz to committing the offence here on April 9 and April 14 this year.
They were each sentenced to four months’ jail each.
The offence under Section 6(1)(c) of the Immigration Act 1959/63, provides for a jail term of up to five years, or a fine of up to RM10,000, on conviction.
The court ordered Ting and Arafat be referred to the Immigration Department after serving their sentence.
