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MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK
AT KOTA KINABALU
[CRIMINAL APPEAL NO. : BKI-42-7/8-2019]

BETWEEN

MOHAMAD LAN LAHAMAN … APPELLANT

AND

PUBLIC PROSECUTOR … RESPONDENT

(In the matter of Sessions Court
Criminal Case No. KDT-62-4/10-2017)

GROUNDS OF DECISION

Background

[1] This is an appeal by the Accused (herein referred to as the

Appellant) against the conviction and sentence imposed by the
Learned Sessions Judge at Kudat on the 27 th August 2019 in
respect of the charge preferred against him under s. 376 (3) of
the Penal Code, where he was sentenced to 20 years
imprisonment with effect from the date of conviction and 15
strokes of the whip.

[2] The charge against the Appellant is reproduced as follows:

“Bahawa kamu pada awal bulan September tahun 2017,

jam lebih kurang 3.00 petang bertempat di rumah tidak
bernombor kg Tanjong Kapor Kudat, dalam Daerah Kudat,

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dalam Negeri Sabah, telah melakukan rogol terhadap diri

penama Siti Amisah Binti abdul Rakman (P) 13 tahun No.
KPT 040917-12-0132 B/Ubian, yang mana oleh kerana
perhubungan kamu dengannya adalah tidak di benarkan di
bawah hukum agama untuk berkahwin dengannya dan
dengan itu kamu telah melakukan satu kesalahan yang
boleh di hukum di bawah seksyen 376(3) Kanun
Keseksaan.”

Summary of the Evidence and Findings of the Trial Court

[3] The prosecution called a total of 10 witnesses to prove its case.

The case of the Prosecution as found by the learned SCJ are as
follows. The Victim (PW6) is the niece of the Appellant. She
lodged a police report on the 5 th October 2017 to the effect that
during the mid-term school holidays break, sometime in the
early month of September 2017 at around 2.30 p.m., the
Appellant had gone to her house to seek permission from the
Victim’s foster mother for the Victim to come to his house to
help him hang his clothes for drying, which the Victim’s mother
agreed.

[4] The same day at around 2.30 p.m., the Victim went to the
Appellant’s house as requested. As she was hanging the
Appellant’s clothes, the Appellant suddenly came from behind,
hugged her and at the same time covered her mouth with a cloth.
He then forcefully laid her on the floor, took her clothes off
together with her underwear as well as his and inserted his penis
into the Victim’s vagina in a very aggressive manner.

[5] About 10 minutes later, the Appellant removed his penis and
ejaculated. The Victim in her police report stated that the
incident happened only once.

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[6] After that, PW6 went back home straight but did not tell her
family about what happened because she was scared. She
however told her friend PW10 and her teacher PW7 at school
about what had befallen her.

[7] The Appellant was arrested on the 6 th October 2017. Medical

examination by PW2, the Medical Officer on the Victim
revealed that there was an old hymen tear in the Victim’s vagina
at 2 o’clock and 9 o’clock position.

[8] After giving the evidence adduced by the Prosecution the

maximum evaluation, the learned SCJ ruled that there was prima
facie case for the Appellant to answer. Hence, she called for his
defence.

[9] At the end of the whole case, the learned SCJ found the
Appellant’s defence as one of bare denial unsupported by any
credible evidence and found him guilty of the offence as per
charged.

[10] The learned SCJ premised her findings on the following, inter
alia:

a. that the Victim was below the age of 16 years at the

time of the incident.

b. the evidence of the Victim given under oath that

there was penile penetration by the Appellant when
she went to the Appellant’s house to help him hang
his clothes for drying. That she was raped was
corroborated by the Medical Officer PW2 who
testified that there was old hymenal tear in the
Victim’s vagina at 2.00 pm and 9.00 pm position, her
friend PW10 and her teacher PW7 whom she

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confided to and told them about the rape incident by

the Appellant.

c. that the Appellant being the uncle of the Victim is

prohibited from marrying her by custom, religion and
usage.

d. The version of the Appellant was one of bare denial

and did not cast any reasonable doubt in the
prosecution’s case.

e. That the sentence passed was reasonable in the

circumstances.

Grounds of Appeal

[11] Learned Counsel for the Appellants raised many grounds of

appeal in the petition of appeal and in his submission which are
as follows:

(a) That the learned SCJ had erred in finding that the
respondent had established their case beyond
reasonable doubt at the conclusion of trial.

(b) That the learned SCJ had erred in finding that the
respondent had established a prima facie case at the
end of the prosecution’s case.

(c) That the learned SCJ erred in believing that there

existed a prohibited relationship between the
Appellant and the Victim.

(d) That the time and place where the alleged rape had
taken place was not proven.

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(e) That the Victim’s evidence was uncorroborated so it

was not safe to convict solely based on the child’s
uncorroborated evidence.

(f) That penile penetration was never sufficiently proven

based on the evidence of the Victim and PW2 per se.

(g) That identification made by the Victim on the

Appellant was uncorroborated.

(h) The sentence passed was manifestly excessive.

(i) That the learned SCJ had failed to consider the

mitigating factors before passing sentence.

Duty of the Appellate Court

[12] It is an established principle of law that an appellate court

should be slow to interfere with the finding of facts by a lower
court as an appellate court does not have the advantage of seeing
and hearing the witnesses and therefore of assessing their
credibility. See PP v. Wan Razali Kassim [1970] 2 MLJ 79.

[13] I am however also well aware that a decision of acquittal ought

not to be interfered with unless the appellate court comes to the
conclusion that the appraisement of evidence made by the lower
court is so unreasonable or perverse as affording a compelling
reason to do so. See PP v. Mohd Omar Lopez @ George Anthony
Lopez [1993] 1 CLJ 222. See also the decision of His Lordship
Justice Azahar Mohammed JCA as he then was in Davendar
Singh Sher Singh v. PP [2012] 1 LNS 261, where he said as
follows:

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“Nonetheless, it would be open to us to upset the findings

made by a trial judge if such a finding is not supported by
evidence or the decision is against the weight of the
evidence or there is no proper judicial evaluation of the
evidence or there is misdirection in law or the trial court
has fundamentally misdirected itself. In this regard,
judicial appreciation and evaluation of evidence is at the
heart of the duty of the learned trial judge. It is the duty of
the learned trial judge to undertake a positive evaluation
of the evidence, which includes a careful analysis of the
credibility and reliability of the witnesses for the
prosecution (see Balachandran v. PP [2005] 1 CLJ 85). It
is also his duty to consider the entire evidence presented
before him, including the evidence which favours the
defence.”

[14] Having the above principles of law in mind, I shall now consider
the petition of appeal herein filed by the Appellant

POINTS OF CONTENTIONS BEFORE THE HIGH COURT

Whether the evidence of the child witness was properly taken

[15] The Appellant contended that, inter alia, no questions were

posed to the Victim, PW6 by the Court whether she understands
the duty to speak the truth and the consequences of speaking the
truth. Despite that, the learned SCJ proceeded to accept PW6’s
evidence on oath. The relevant parts in the Notes of Proceedings
are quoted as follows:

Questions from Court to PW6

Q1: Siapa nama?

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A: Siti Amisah

Q2: Apa nama panggilan kamu?

A: Siti

Q3: Kamu berumur berapa?

A: 14 tahun

Q4: Kamu bersekolah?

A: Tidak

Q5: Pagi tadi kamu dating sini dengan siapa?

A: Penjaga Kota Kinabalu

Q6: Kamu sudah makan?

A: Sudah

Q7: Adakah kamu berpuasa?

A: Tidak

Q8: Adakah kamu faham kamu sekarang berada di

Mahkamah?

A: Tahu

Q9: Adakah kamu tahu kenapa kamu datang ke

Mahkamah?

A: Tidak

Q10: Kamu ada mahu cerita apa-apa?

A: Tidak ada

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Q11: Siapa suruh kamu datang ke Mahkamah pada hari

ini?

A: Pegawai perlindungan saya yang bawa saya, dia

kasitahu hari ini datang Mahkamah.

Q12: Tapi kamu tidak tahu kenapa kamu datang ke

Mahkamah?

A: Tidak

Q13: Kenapa pelindung suruh datang ke Mahkamah pada

hari ini?

A: (No answer)

Q14: Kamu boleh jawab kalau ditanya soalan?

A: Boleh

Court: This Court finds that based on the answer given

to the questions, this witness has the ability to
understand the duty to speak the truth and the
consequences of speaking the truth. As such,
the witness will testify under Oath.

[16] Section 118 of the Evidence Act 1950 provides that all persons
shall be competent to testify unless the Court finds them to be
prevented from understanding the questions put to them or from
giving rational answers to those questions by, among other
reasons, tender years. No definition is given explaining what
constitutes ‘tender years’. However, this just goes to show that
to be a competent witness, age may not serve as an important
factor. Cases have shown that what is relevant is the intellectual
capacity of the witness. The Court is entitled to test the
intellectual capacity of a child witness by putting suitable

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questions to him. Depending on the level of his intelligence, the

evidence of a witness (child witness included) may be admitted.
As per Malik Ishak J in Sidek bin Ludan v. PP [1995] 3 MLJ
178,

“The court has to ascertain the intellectual capacity and

understanding of the witness to give a rational account of
what he has seen or heard or done on a particular
occasion.”

[17] By virtue of Section 133A Evidence Act, to ascertain the

intellectual capacity and understanding of a child witness, an
inquiry should be conducted. Nonetheless, the form and manner
of such inquiry was never prescribed. The approached adopted
by Justice Mohd Zaki Abdul Wahab in Mohammad Abdul Kadir
v. PP [2012] 8 CLJ 490 may however shed some light on the
conduct of such inquiry. According to His Lordship:

“… in conducting the inquiry, the child could be asked a

few simple questions initially, and if needed, gradually,
more difficulty questions should be posed to him; for the
purpose of determining his intelligence quality. If the
result proved he had the intelligence quality to give
evidence, he could be shown with a document containing
the prescribed form of oath. The child shou ld then be
asked to read or should be assisted to read the prescribed
form of oath. Following that, the child should be asked if
he understands the oath as shown to him. Depending on
the answer, the magistrate should decide which form of
evidence to be recorded from the child.”

[18] Based on the approach provided, only after the court is satisfied
that the child possesses sufficient intelligence quality to give
evidence that the court should proceed to determine which form

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of evidence to be recorded from the child. Mere possession of

sufficient intelligence quality does not justify the court to accept
the evidence of the child on oath, for to do so, would require the
court to take the next step that is to enquire whether the child
understands the nature of an oath. In R v. Hayes [1977] 64 Cr
App R 194, what amounts to understanding the nature of an oath
was explained by Bride LJ as follows:

“The important consideration we think, when a judge has

to decide whether a child should properly be sworn, i s
whether the child has a sufficient appreciation of the
solemnity of the occasion and the added responsibility to
tell the truth, which is involved in taking an oath, over and
above the duty to tell the truth which is an ordinary duty
of normal, social conduct.”

[19] In this instant appeal, a preliminary inquiry was indeed

conducted on the child witness, PW6. Based on the questions
posed, PW6 clearly has sufficient intelligence quality to give
rational answers to the questions posed. However, prior to her
evidence being received on oath, no questions were asked to
determine whether PW6 understands the nature of an oath.

[20] The law of course did not prescribed the particular form of
inquiry needed to be held by the court under s. 133A EA. In
Arumugam Mothiyah v. PP [1995] 1 CLJ 58, Abdul Malik Ishak
J as he then was said as follows:

“It is also desirable, in my considered view, that the SCJ

should apply and record appropriate questions in the notes
of evidence so as to ascertain whether the complainant
understands the solemn duty of speaking the truth or not.
Arising out of this, the SCJ should also record in the notes
of evidence his opinions and reasons in arriving at the

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conclusions as to whether the complainant understands the

solemn duty of speaking the truth or not”.

[21] Based on the above authority, it should have been desirable that
the learned SCJ recorded in the notes of evidence to ascertain
whether PW6 understands the solemn duty of speaking the truth.
She also should have recorded her opinion and reasons in
arriving at the conclusions. In the absence of any record, I find
that the learned SCJ had not, in anyway made a proper
assessment that PW6 understood the sanctity of telling the truth
but yet concluded and proceeded to record PW6’s evidence on
oath. This is a material irregularity that warranted this Court’s
judicial intervention.

[22] Apart from the above, I also observed that based on the notes of
evidence, despite the learned SCJ’s ruling that PW6 can testify
on oath, there was no record showing that an oath was
administered. In the absence of this record, I must rule that her
evidence was administered without oath.

[23] As such, even if the evidence of PW6 is admitted as an unsworn

evidence, it would require that the evidence of PW6 to be
corroborated. But before that, the evidence of PW6 which
constitute the main evidence against the Appellant must be
properly admitted before it could be corroborated by the
evidence of PW2, PW7 and PW10. See PP v. Hj Ismail & Anor
[1939] 1 LNS 68.

[24] In determining the next course of action, the Court is guided by

the case of Yusaini bin Mat Adam v. PP [1999] 3 MLJ 582,
where the consequence of non-compliance with the established
conduct of preliminary inquiry was held as follows:

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“If a child was allowed to testify without such prior

examination, any conviction based on that child’s evidence
was liable to be quashed on the ground of material
irregularity.”

[25] In Tajuddin Salleh v. PP [2008] 2 CLJ 745 it was held that a

failure to comply with the requirement of s. 133A is not curable
under 422 of the CPC.

[26] In this present appeal, this Court finds that since the learned SCJ
failed to ascertain PW6’s understanding of the oath prior to
receiving her sworn testimony, the Appellant’s conviction that
was contingent to PW6’s sworn evidence is therefore not safe
and must be set aside.

[27] Thus, on this ground alone, I hereby set aside the conviction and
sentence of the Appellant.

Whether the prohibited relationship of PW6 and the Appellant

proven

[28] Besides the issue of PW6’s sworn testimony, another issue that
forms the crux of the Appellant’s contention is the issue of
whether the elements of prohibited relationship between PW6
and the Appellant was sufficiently proven. Notwithstanding, my
decision above, I shall however deal with this issue for the
purposes of completion.

[29] It was contended by the Appellant that the learned SCJ based
her findings that the sexual relationship between the Appellant
and PW6 was prohibited merely based on the birth certificate of
PW6 (Exhibit P17), her father’s (Exhibit P18) and the
Appellant’s (Exhibit P19). PW6’s father was never called to
testify on the veracity of Exhibit P18 and neither was the JPN

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officer who certified Exhibit P18 and Exhibit P19 as true copies.
The Appellant argued that such contention was never put forth
during the prosecution case as he was under the impression that
Exhibit P18 and Exhibit P19 were obtained by the Investigating
Officer, PW9 from his investigation with JPN. It was only
during the defence case that Exhibit P18 and Exhibit P19 were
found to have been obtained by PW6’s father himself from JPN.
As such, the Appellant submits no weight should be attached to
these exhibits. There was also no attempt by PW9 to ascertain
the blood-relationship between the Appellant and PW6 by way
of a DNA test.

[30] Upon perusing the grounds of decision by the learned SCJ, this
Court agrees with her finding that PW6 is the niece of the
Appellant. Based on Exhibit P18 and Exhibit P19, the Appellant
is the biological brother of PW6’s biological father. The manner
in which Exhibit P18 and Exhibit P19 were tendered, that is via
the Investigating Officer, PW9 as opposed to PW6’s own father
is of no relevance as these exhibits have been certified true copy
by JPN and thus having the effect as provided in section 31(5)
of the Registration of Births and Deaths Ordinance (Sabah Cap.
123) as follows:

“Every copy or extract of any entry in any register

certified under the hand of a Registrar or the Regional
Registrar, to be a true copy or extract shall …. be prima
facie evidence in all courts and before all tribunals of the
dates and facts set forth in such copy or extract..”

[31] As both Exhibit P18 and Exhibit P19 show that the name of the
parents of PW6’s father and the Appellant are the same, prima
facie they are siblings. Taking into account the facts set forth in
Exhibit P17, PW6 is therefore the niece of the Appellant.

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[32] The Appellant attempted to negate the veracity of Exhibit P18

and Exhibit P19 by calling his parents, DW2 and DW3 to testify
that the content of Exhibit P18 and Exhibit P19 are false.
However, this Court agrees with the learned SCJ that their
evidence are afterthought evidence as these evidence were never
put to the prosecution witnesses during the prosecution case.

[33] To err on the safe side, this Court has also taken the liberty of
weighing the evidence of these witnesses. As Exhibit P18 and
Exhibit P19 are to be taken as prima facie evidence, the onus
now lies on the Appellant to prove otherwise. Based on the
testimonies of the Appellant and the other defence witnesses,
this Court finds that the Appellant has failed to discharge its
burden to negate the prima facie evidence of Exhibit P18 and
Exhibit P19. This Court noted that there is no legal presumption
or principle that requires evidence by parents to be treated with
caution. See Balasingham v. PP [1959] MLJ 193. However,
based on the testimonies of both DW2 and DW3, they were
clearly having vested interest in this matter, being the parents of
the Appellant and thus vitiated their credibility. DW2 testified
to have known and consented to the alleged illegal use of birth
certificate of his deceased biological son by the name of Jemboi
for PW6’s father named Abdul Rakman. However, he never
attempted to lodge any police report nor informed the authorities
about this until the day he was called to testify in court. We will
never know whether such was ever put to PW9 during the
investigation stage as such defence was never put during the
prosecution case. Nonetheless, the delay in relaying such vital
information clearly put the credibility of DW2 in doubt. As for
DW3, she testified during her cross-examination in ROA page
291 to 292 as follows:

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“Q6: Saya katakan kepada kamu bahawa kamu tahu

Mohamad Lan telah dituduh di Mahkamah.

A: Tidak setuju.

Q7: Kalau kamu tidak bersetuju, kenapa Mohamad

Lan berada di Mahkamah?

A: Saya tidak faham apa yang dinyatakan sebab

itu saya menjawab seperti itu.

Q8: Saya rujuk kamu kepada P18 and P19.

Berdasarkan P18 and P19 kedua-dua dokumen
ini menunjukkan terdapatnya nama kamu iaitu
Musadiok binti Nadua, setuju?

A: Abdul Rahman saya tidak melahirkannya.

Q9: Maksud saya, setuju dengan saya pada P18 dan

P19 kedua-dua dokumen ini sememangnya
tertara nama kamu?

A: Tidak setuju.”

[34] This clearly shows that DW3 was disagreeing merely because
she was cross-examined and not because she was telling the
truth.

[35] As the credibility of DW2 and DW3 were in doubt, independent

evidence is crucial and warranted. Failure of the Appellant to
provide such evidence is tantamount to failure to discharge its
burden to rebut the prima facie evidence of Exhibit P18 and
Exhibit P19. Thus, the learned SCJ was correct to rely on the
facts set forth in these exhibits to rule that the element of
prohibited relationship was indeed established by the
prosecution.

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[36] In addition, this Court also finds the absence of any DNA test or
report to prove the relationship between the Appellant and PW6
to be not fatal to the prosecution case and will not render the
conviction unsafe. There is no statutory requirement for such
test to be carried out or such report to be adduced in order to
prove the relationship between PW6 and the Appellant. All that
need to be established is whether there was sufficient evidence
to warrant a conviction of the Appellant and not to determine
whether all evidence have been gathered and adduced in court.
See PP v. Badrulsham bin Baharom [1987] 1 LNS 72 HC. This
Court concurs with the finding of the learned SCJ that Exhibit
P17, Exhibit P18 and Exhibit P19 have sufficiently prove the
relationship between these parties.

[37] The appeal by the appellant is hereby allowed.

Dated: 27 APRIL 2021

(DUNCAN SIKODOL)
Judicial Commissioner
Sabah and Sarawak

COUNSEL:

For the appellant - Pg Amli Noraufe Pg Nohin; Nohin & Partners ,

Sabah

For the respondent - DPP Rustam Sanip

Case(s) referred to:

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PP v. Wan Razali Kassim [1970] 2 MLJ 79

PP v. Mohd Omar Lopez @ George Anthony Lopez [1993] 1 CLJ

222

Davendar Singh Sher Singh v. PP [2012] 1 LNS 261

Sidek bin Ludan v. PP [1995] 3 MLJ 178

Mohammad Abdul Kadir v. PP [2012] 8 CLJ 490

R v. Hayes [1977] 64 Cr App R 19 4

Arumugam Mothiyah v. PP [1995] 1 CLJ 58

PP v. Hj Ismail & Anor [1939] 1 LNS 68

Yusaini bin Mat Adam v. PP [1999] 3 MLJ 582

Tajuddin Salleh v. PP [2008] 2 CLJ 745

Balasingham v. PP [1959] MLJ 193

PP v. Badrulsham bin Baharom [1987] 1 LNS 72 HC

Legislation referred to:

Evidence Act 1950, ss. 118, 133A

Criminal Procedure Code, s. 422

Penal Code, s. 376 (3)

Note: This copy of the Court’s Grounds of Decisions is subject to

editorial revision.

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