Kota Kinabalu: A vegetable seller, jailed 20 years and ordered to be caned 20 times on two counts of raping his wife’s niece, saw his conviction and sentence set aside by the Court of Appeal.
Court of Appeal Justices Datuk Has Zanah Mehat, Datuk Lee Heng Cheong and Datuk Che Mohd Ruzima Ghazali on Monday unanimously allowed the 57-year-old man’s appeal and set aside the order and judgement of the Sessions Court and the High Court.
The appellate court judges ordered the matter be remitted to the different Sessions Court judge for a plea to taken.
The man had on March 20, 2019 pleaded guilty at the Sessions Court here to both charges under Section 376(3) of the Penal Code, which carries a jail term of between eight years and 30 years’ jail and whipping of not less than 10 times, on conviction.
He was jailed 20 years for raping the nine-year-old girl at 2.20pm on November 2018 in a house in Kota Belud. He was handed another 25 years’ jail on the second count of committing similar offence to the same victim at 2pm on March 7, 2019, also at the same place.
The Sessions Court ordered the jail term to run consecutively.
However, on May 10, 2019 the High Court substituted the sentence during a revision application by the prosecution for a whipping sentence, to 10 years imprisonment on each charge to run consecutively plus 10 lashes of the cane on each count.
The appellant’s counsel Hamid Ismail in raising two grounds in the appeal, submitted among others that the appellant’s guilty plea was bad as there was only one charge read to him and the facts of the case were not read and explained to him as seen in the record of proceedings.
It must be noted that the appellant was unrepresented at the lower court, submitted Hamid, adding that he was only an orang kampung working as a vegetable seller and pleaded guilty to the charge 14 days after he was arrested on March 7, 2019.
“He did not have any legal advice to the very serious charges, and the court ought to have explained and made sure he understood both charges and when read it should in respect of two charges and not only one,” submitted Hamid.
Hamid appealed for the case to be allowed and remitted back to a different Sessions Court Judge for the charges to be read against the appellant.
The prosecution rebutted that by referring to the record of appeal, there was no indication the two charges were not read to the appellant or properly explained to him.
The facts of the case recorded the second incident, submitted the prosecution, adding that according to the facts, there were two incidents which the appellant confirmed.
However, the appellate court held in their decision that they have considered the record of appeal and found that the record did not show that the two charges were read to the appellant in the Sessions Court.
“There was great doubt as to which charge was read to the appellant and the plea taken relates to which charge. Thus, we found that this great error was committed by the Sessions Court judge.
“In the premise, we allowed the appeal and the orders and judgement of the Sessions Court and the High Court judges are hereby set aside.
“We ordered that the matter be remitted to the different Sessions Court judge for plea to taken,” held the appellate court.
