Sexual offences: Man wins appeal against conviction

Kota Kinabalu: A 39-year-old man, who was jailed a total of 25 years and ordered given 13 lashes of the cane on two counts of sexual offences against his 12-year-old stepdaughter, succeeded in his appeal against his conviction and sentence.

Court of Appeal Justices Dato’ Lee Swee Seng, Datuk Ravinthran N. Paramaguru and Datuk Hadhariah Syed Ismail unanimously quashed his conviction on both charges and set aside the sentences against him.

The justices via Zoom ruled that the man’s conviction was unsafe.

The court held that the appellant had raised a reasonable doubt in the prosecution’s case, as even the complainant’s mother who was a prosecution witness had testified in Court that her daughter is unreliable and making up stories.

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The court further added that the trial judge failed to make any finding on the issue of the complainant’s credibility when deciding to rely solely on her evidence in arriving at a decision that a prima facie case has been made out by the prosecution. The appellant was on Jan 29, 2019 found guilty by the Sessions Court here on both charges in which he was jailed 15 years and ordered to be caned 10 strokes of the cane for forcing the girl to perform oral sex on him at a house in Penampang on March 19, 2015.

The offence under Section 377C of the Penal Code carries a jail term of up to 20 years and whipping, on conviction.

The appellant was also sentenced to another 10 years’ jail plus three strokes of whipping for attempting to rape the same girl at the same place on March 20, 2015, which framed under Section 376 (3) of the Penal Code read together with Section 511 of the Penal Code.

He was ordered to serve the jail sentence concurrently.

On Dec 10, 2019 the High Court allowed the prosecution’s appeal against the inadequacy of the sentence and ordered the jail term to run consecutively, instead.

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Dissatisfied with the High Court’s decision, the man appealed to the Court of Appeal.

He was represented by counsel Dato’ Sri K. Rakhbir Singh while Deputy Public Prosecutor Ng Siew Wee appeared for the prosecution as respondent.

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