DALAM MAHKAMAH TINGGI MALAYA DI KOTA BHARU DALAM NEGERI KELANTAN, MALAYSIA RAYUAN JENAYAH NO: 42S-43-8/2016 (MAHKAMAH SESYEN KOTA BHARU, KELANTAN NO. SKB(A)62JS-138-8/2014) BETWEEN MOHD ASHRAF BIN IBRAHIM... ACCUSED/APPELLANT AND PUBLIC PROSECUTOR... RESPONDENT GROUNDS OF JUDGEMENT A. BACKGROUND [1] The Accused/Appellant was charged for raping an under aged girl, an offence punishable under Section 376(1) of the Penal Code. [2] The Accused/Appellant claimed trial and at the conclusion of the trial, the learned Sessions Judge found him guilty and convicted him. The learned judge then sentenced him to 15 years imprisonment from the date of his conviction (18/7/2016) and 4 strokes of whipping. Dissatisfied, the Accused/Appellant filed an appeal before this Court. 1
[3] Upon hearing the appeal, this Court allowed the appeal of the Accused/Appellant in part. The appeal against conviction was dismissed but the appeal against sentence was allowed whereby the Sessions Judge s ruling on sentence was set aside and was substituted with 11 years imprisonment and 1 stroke of whipping. [4] Dissatisfied, the Public Prosecutor filed an appeal to the Court of Appeal. These are the Grounds of Judgment for the decision of this Court. B. THE CHARGE [5] The charge against the Accused/Respondent was as follows: Bahawa kamu pada 28/4/2014 jam lebih kurang 2.00 pagi di sebuah rumah di Kampung Lubok Jambu, Mulong dalam Daerah Kota Bharu dalam Negeri Kelantan, telah didapati merogol Nur Syafinaz binti Mohd Norzi, No. Kad Pengenalan: 980920-03-5764 yang berumur 15 tahun 7 bulan, oleh itu kamu telah melakukan kesalahan yang boleh dihukum di bawah Seksyen 376 (1) Kanun Keseksaan. C. THE FACTS OF THE CASE [6] The facts of the case can be gleaned from the Sessions Judges findings at pages 12 and 14 of the Appeal Record and are reproduced below: 2
[4] Mangsa di dalam keterangannya mengatakan bahawa beliau berkenalan dengan Tertuduh melalui SMS. Pada 27 April 2014 selepas Maghrib jam 7.30 malam Tertuduh telah mengambil mangsa dengan motosikal. Mangsa keluar dari rumahnya pada jam 6 petang dan beliau tidak memberitahu kepada sesiapa yang beliau telah keluar rumah. Tertuduh dan mangsa keluar bersiar-siar dengan motosikal di sekitar Kampung Tunjong dan ada ketikanya Tertuduh singgah membeli makanan. [5] lbu mangsa, SP5 telah memberi keterangan bahawa pada hari kejadian beliau telah ke rumah ibunya yang tinggal berdekatan. Apabila pulang ke rumahnya pada malam itu SP5 tidak dapat masuk kerana mangsa tidak pulang ke rumah. Mangsa tetap tidak pulang ke rumah walaupun SP5 telah menghubunginya. Mangsa memberitahu SP5 bahawa beliau berada di rumah kawannya dan akan pulang namun sehingga 1.00 pagi mangsa masih tidak pulang ke rumah. [6] Setelah bersiar-siar dengan Tertuduh di atas motosikal, pada pukul 1.00 pagi mangsa telah sampai di tempat kejadian, iaitu rumah sewa Tertuduh di Kampung Lubuk Jambu. Lebih kurang pukul 2.00 pagi di rumah sewa tersebut Tertuduh telah mengajak mangsa melakukan hubungan seks. Mangsa menceritakan bahawa mulamula Tertuduh membuka seluar jeans yang dipakainya, kemudian membuka baju mangsa, diikuti baju dan seluar dalam dan mangsa akhirnya berada di dalam keadaan telanjang. Ketika itu Tertuduh hanya memakai seluar boxer. Kemudian Tertuduh telah memasukkan jarinya ke dalam kemaluan mangsa selama 2 minit. 3
Ketika itu mangsa di dalam keadaan terlentang muka menghadap ke atas, kaki di dalam keadaan terkangkang, seperti kata mangsa macam orang hendak bersalin. [7] Selepas memasukkan jarinya ke dalam kemaluan mangsa Tertuduh memasukkan kemaluannya ke dalam kemaluan mangsa. Mangsa mengatakan beliau nampak kemaluan Tertuduh dan boleh rasa kemaluan Tertuduh masuk ke dalam kemaluannya. Kemudian selama lebih kurang 5 minit kemaluan Tertuduh keluar masuk kemaluan mangsa, mangsa mengatakan bahawa beliau rasa sakit. Setelah keluar masuk kemaluan, Tertuduh telah memancutkan air mani ke atas perut mangsa dan kemudian mangsa dan Tertuduh telah tidur sekejap selama lebih kurang 5 minit. [8] Setelah itu pada lebih kurang pukul 3.00 pagi. Tertuduh telah mengajak mangsa melakukan seks sekali lagi dan kali ini posisi Tertuduh adalah di dalam keadaan berbaring dan mangsa di atas. Setelah selesai melakukan hubungan seks kali kedua itu mereka telah tidur sehingga pukul 5.30 pagi. [9] Pada pukul 11.00 pagi Tertuduh telah menghantar mangsa di kawasan berdekatan rumahnya dan di situ mangsa telah terserempak dengan bapa saudaranya yang mengajak mangsa pergi ke rumah neneknya. Di rumah neneknya, mangsa telah ditanya oleh ayah mangsa, iaitu SP2, mangsa telah pergi ke mana dan mangsa menjawab beliau telah pergi ke rumah kawannya. SP2 telah menampar mangsa kerana mangsa ada juga menjawab bahawa 4
beliau ada melakukan hubungan seks. SP2 telah keluar mencari Tertuduh tetapi tidak jumpa dan seterusnya SP2 telah pergi ke Balai Polis untuk membuat Laporan Polis. [10] Mangsa kemudiannya dibawa ke Hospital Raja Perempuan Zainab II untuk pemeriksaan. Hasil pemeriksaan, doktor sahkan terdapat kesan koyakan lama pada kedudukan 3,5 dan 9 arah jam dan terdapat kesan abrasion yang baru pada right side Labia Minora pada kemaluan mangsa. D. THE LAW ON APPEAL AGAINST SENTENCE [7] The law on appeal against sentence is trite, that the appellate court should be slow to interfere or disturb with the sentence passed by the court below unless it is manifestly wrong or unsuitable to the proved facts and circumstances of the case. The mere fact that another court might pass a different sentence provides no reason for the appellate court to interfere if the trial court applies the correct principles of sentencing. [8] Although there is a plethora of authorities on this point, suffice for this Court to apply the principles of sentencing as enunciated in the decision of the Court of Appeal in PP v Ling Leh Hoe (2015) 4 CLJ 869 viz: [14] The appellate court can and will interfere in the sentence imposed by the lower court if it is satisfied that any of the following four grounds are made out: 5
(a)the sentencing judge had made a wrong decision as to the proper factual basis for the sentence; (b)there had been an error on the part of the trial judge in appreciating the material facts placed before him; (c) The sentence was wrong in principle; or (d)the sentence imposed was manifestly excessive or inadequate. (See R v. Ball [1951] 35 Cr App. R 164; Loo Weng Fatt v. Public Prosecutor [2001] 3 SLR 313 at para [65]; Public Prosecutor v. UI [2008] 4 SLR (R) 500). [9] To generalize it, whilst an appellate court should be slow in interfering the sentence imposed by the trial court in the exercise of their discretion as sentencing is not a science of mathematical application, an appellate court can interfere on the sentence if it is wrong in principle or the sentence imposed is manifestly excessive or manifestly inadequate. In fact the court of Criminal Appeal in Dookes v PP (2010) SCJ 71 said: However, even if there is nothing wrong with the principle, the sentence may be increased by the appellate court if it is unduly lenient. E. FINDINGS OF THE SESSIONS COURT [10] The grounds of judgment of the Sessions Judge on sentence were brief. No authorities were cited. The learned judged inter alia said at pages 34 to 35 in the Appeal Record as follows: 6
[51] Setelah mendengar rayuan daripada Tertuduh dan faktor-faktor memberatkan hukuman daripada Timbalan Pendakwa Raya, serta melihat kepada fakta-fakta kes seperti di dalam perbicaraan, Mahkamah mengenakan Hukuman penjara selama 15 (Lima belas) tahun dari tarikh hukuman dan juga dikenakan 4 kali sebatan. [52] Mahkamah memberikan hukuman di atas setelah mengambilkira faktor-faktor meringankan hukuman dan faktor-faktor yang memberatkan hukuman dan mendapati bahawa faktor pemberat patut lebih diberi penekanan. lni adalah kerana kesalahan rogol statutory tidak kurang seriusnya berbanding kesalahan rogol yang melibatkan mangsa yang dewasa. Malahan mangsa rogol statutory jikapun tidak melibatkan kekerasan perlu mendapat keadilan yang sewajarnya kerana Tertuduh sebagai seorang lelaki dewasa tidak seharusnya mengambil kesempatan ke atas kenaifan seorang gadis yang masih di bawah umur. Sepatutnya mangsa dibimbing dan dilindungi, bukan dijadikan tempat untuk memuaskan hawa nafsu. Mahkamah berpendapatan bahawa mesej yang jelas perlu disampaikan kepada masyarakat bahawa jenayah rogol adalah satu jenayah berat yang tidak harus berleluasa di kalangan masyarakat dan hukuman berat yang setimpal dengan kesalahan patut dikenakan. F. SUBMISSION BY THE ACCUSED/APPELLANT AND THE PUBLIC PROSECUTOR AT THE SESSION S COURT 7
[11] The learned Counsel at the court below submitted amongst others that the Accused/Appellant was 21 years old at the time of committing the offence, just married and has a small child. He was then working as a mosaic maker, and a sole bread winner. [12] The Accused/Appellant had repented and was remorseful of his actions. The Accused/Appellant was a first offender i.e. he has no previous conviction. [13] The learned Counsel prayed for the most minimum sentence to be meted out since a long prison term cannot give the Accused/Appellant the opportunity to turn over a new leaf. Further it has a crushing effect on the Accused/Appellant. A long prison term would also have a direct effect on his family. [14] The learned Counsel further submitted that whilst public interest is important, court should not disregard the interest of the Accused/Appellant. Further in this case, there was no violence or force being employed by the Accused/Appellant and both were consenting partners. [15] The learned DPP at the court below submitted inter alia that the offence carries a maximum sentence of 20 years imprisonment and liable to be whipped, hence it is a serious offence. Hence public interest warranted that court should mete out a sentence which reflects the seriousness of the offence and which has a deterrent effect on would be offenders. 8
[16] The learned DPP further submitted that the victim was 15 years 7 months at the time of the offence and should be protected from unscrupulous people like the Accused/Appellant. Hence a long prison term was warranted. G. FINDINGS OF THIS COURT [17] This Court shares the view that rape is a serious offence regardless whether it is a simple rape per se, statutory rape or aggravated rape. [18] The learned Sessions Judge in complying with the principles of sentencing was right in deciding that public interest is of paramount importance. It should supersede the interest of the Accused/Appellant. [19] However the Accused s personal interest should not be disregarded at all (see Tan Sri Abdul Rahim Noor v PP (2001) 1 MLJ 193). There are circumstances in which public interest itself warrants that the Accused should not be put behind bars for far too long as that will do more harm than good as it might cause a crushing effect on him, and could turn him into a hardened criminal. [20] Thus, this court was inclined to hold the view that a sentence that could reform him and turn his life from a criminal to an honest life must be favoured. In the words of Hashim Yeop Sani, High Court Judge Malaya, as he then was in the case of Loo Choo Fatt (1976) 2 MLJ 256 who said: 9
The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. [21] Hence this court needs to strike a balance in order to do justice to the Accused and to the victim/public. Towards that end, this court had embarked on a balancing exercise, balancing the victim s/public interest with that of the fact that the Accused/Appellant had repented and remorseful, had promised to turn over a new leaf upon completing his time in prison and that he was married and has a small child, and a sole bread winner of the family. [22] This court had also considered the learned judge s failure to consider the circumstances surrounding the case that eventually culminated into the commission of the offence by the Accused/Appellant as follows: (i) It was the victim (SP1) who invited him to take her out on his motorcycle. At 6.00 pm he obligingly came to fetch her. She did not tell about this to anybody especially her family members. (ii) At 1.00 am the following day, the Accused/Appellant brought her to his rented house. At 2.00 am both of them were on the bed where the Accused/Appellant made sexual advances without any objection or resistance from her, which later culminated into both of them having sexual intercourse together. (iii) After that, both of them slept and woke up again at about 3.00 o clock in the morning and had sexual intercourse again for the second time. 10
(iv) It was only at 11.00 am that the victim went back home, sent by the Accused/Appellant. She was met by her uncle who brought her home to the parents who were waiting anxiously for her. (v) She admitted that both she and the Accused/Appellant had sexual intercourse and it was then the father slapped her. She was then brought to the Police Station where a report was lodged by the father. [23] The learned judge failed to direct his mind on the fact surrounding the case as mentioned above and hence there was a non-direction which amounted to misdirection which warranted appellate intervention. Mohamed Azmi, SCJ in Mohamed Abdullah Ang Swee Kang v PP (1988) 1 MLJ 167 said: in assessing the length of custodial sentence, the court must look at the overall picture in perspective by considering, first, the gravity of the type of offence committed, secondly, the facts in the commission of the offence, thirdly, the presence or absence of mitigating factors, and further the sentences that have been imposed in the past for similar offences to determine the trend of sentencing policy, if any. The fact that a sentence of imprisonment is imposed as a deterrent does not justify the sentencer in passing a sentence of greater length than the facts of the case warrant. The gravity of the type of offence involved must be considered in the light of the particular facts of the offence. 11
[24] Hence looking at the circumstances of the case, both of them were consenting partners and no element of force was present, that there was no complaint by her of the acts of the accused, not until she arrived home when she was confronted by family members and thereafter was escorted to the police station to lodge a report. She did not lodge the report but it was lodged by her father. This merited consideration from the learned judge before passing sentence. Whilst this court does not condone the act of the Accused/Appellant, this court was of the considered view that the accused would have escaped the net of the charge, had she been 16 years at the time of the incident. However she was 5 months shy of 16 years old. Hence the offence of statutory rape committed by him. The failure of the learned judge to consider the circumstances surrounding the case was a non direction which amounted to a misdirection which warranted this court s intervention. [25] This court had also considered that the Accused/Appellant was a first offender and that he was a young offender at the time of committing the offence. As a first offender, this court took into consideration that the unlawful act committed was between the Accused/Appellant and the victim only and they were both consenting partners. It was committed almost at a spur of the moment. It was not premeditated and it was her who called him to fetch her. This was the only crime he committed as he has no criminal record. As a young offender (as he was 21 years at the time of committing the offence) a special consideration should be given to him. Authorities like Tukiran b. Taib v PP (1955) MLJ 24 seems to suggest that such category of Accused should not be imprisoned. However as this court had decided to 12
mete out a custodial sentence, the sentence should accordingly be not too long. [26] This court was also guided by the sentencing trend of this offence. In the case of Nor Afizal Azizan v PP (2012) 6 CLJ 370 (the national bowler case), the accused was not sentenced to any custodial sentence but was ordered to enter a bond of good behavior under section 294 of the Criminal Procedure Code. In Peillis Sami v PP (2014) 6 CLJ 670 the Accused/Respondent was sentenced to twelve years imprisonment and five strokes of whipping. In the case of Riduan Mahmud v PP (2015) 1 LNS 449, the Accused was sentenced to twelve years imprisonment and two strokes of whipping. [27] However, in the case of PP v Arfah Jasmi (2008) 7 CLJ 836, the High Court considered statutory rape, as in this case, as an offence of passion and hence actually is a social problem and must be addressed through religious and moral education by parents and relevant authorities and that imprisonment of offender will only add to further social problems. The High Court affirmed the sentence of 5 years imprisonment imposed by the Sessions Court. [28] Hence, the trend seems to show that the sentence imposed should be between an order of bound over to between ten to twelve years of imprisonment and whipping. The Appellant/Accused in this case at hand was sentenced by the trial court to 15 years imprisonment and 4 strokes of whipping. Hence by any standard, this was evidently excessive. 13
[29] In coming to a conclusion to vary the sentence imposed, this court begged to differ from the decisions of the courts in both Arfah Jasmi (supra) and Nor Afizal Azizan (supra) as those order/sentence are no longer suitable nowadays and a more severe sentence should be imposed. Having considered all the factors as expounded above, this court opined that justice warranted that the sentence to be reduced to 11 years imprisonment and 1 stroke of whipping as the sentence imposed by the learned Sessions Judge was manifestly excessive. This court had also considered that the long prison term imposed by the learned judge would have a crushing effect on the Accused/Appellant and might even turn him into a hard core criminal. With the reduced sentence, the Accused/Appellant can be released early and mend his ways to become a good citizen, a responsible husband and a loving father to his child, who really needs fatherly love and affection. H. CONCLUSION [30] For the foregoing reasons, this court had substituted the sentence to 11 years imprisonment from the date of his arrest and 1 stroke of whipping. This court was of the considered view that the sentence imposed by this court was fair and safe. Further it was deterrent enough and had reflected the public s abhorrence to this type of crime. The sentence imposed had also sufficiently conveyed the right message to the public that court had persistently considered rape as a serious offence and that courts view this offence with much detestations. [see Peilis Sami v PP (supra)]. Accordingly the sentence imposed by the Sessions Court was set aside. 14
Dated: 30 th October 2017 (DATO AHMAD BIN BACHE) Judicial Commissioner Mahkamah Tinggi Kota Bharu Kelantan. Pendakwa Raya/ Responden: TPR Shaharaliza binti Ab. Razak Pejabat Penasihat Undang-Undang Negeri Kelantan, Blok 5, Tingkat Bawah, Kota Darulnaim, 15050 Kota Bharu, Kelantan Peguamcara/Perayu: Puan Latifah binti Ariffin Tetuan Latifah Ariffin & Co, Peguambela & Peguamcara, Lot 1105, Seksyen 52, Jalan Dato Lundang, 15200 Kota Bharu, Kelantan. 15