A191 GLUP 2053 (GROUP C)

CRIMINAL LAW I
GROUP ASSIGNMENT 1

PREPARED BY:
No NAME MATRIC NO

1 NUR SHAKINA BINTI KADER MYDIN 263021

2 SATHIYERUBINI MUNISPERAN 264964

3 MADHURI KAUR A/P GANASAN 264284

4 NUR FATHIN FARINA BT MOKHTAR 264652

5 JOYCE SHARON SIGAR 262255

PREPARED FOR: DR ASMAR BINTI ABDUL RAHIM

DATE OF SUBMISSION: 17 NOVEMBER 2019
Content

1.0 INTRODUCTION………………………………………………………………………...1

2.0 JURISDICTION OF SEXUAL OFFENCES AGAINST CHILD ACT 2017……………2

2.1 Scope, definitions and application of SOAC 2017 to the penal

code……………………3

2.2 Application of SOACA to other scheduled

offences…………………………………….3

2.3 Sexual Assault on a child………………………………………………………….….5

3.0 CASES RELATED TO SOACA 2017…………………………………………………...8

4.0 CONCLUSION………………………………………………………………………….12

5.0 REFERENCES…………………………………………………………………….…….13
1.0 INTRODUCTION

Generally, Malaysian Law primary goals are to protect victims and to

respect people’s rights to privacy as stated in Penal Code whereby it comprises the
elements and punishment to rape offences. However, in the penal code; section
375(g) it utters a law for sexual offences for minor or children below 16 of age
undetailed. This had brought the attention of the government as well as the society in
Malaysia.
According to Woman’s Aid Organisation (WAO), Sexual assault is a sexual
contact towards the victims without their consent. Malaysian law does not explicitly
define sexual assault. However, the law criminalises various forms of sexual
assault1. Sexual assault includes molestation, penetration of the anus or vagina with
an object, harassment etc. Malaysian Law defines sexual intercourse with a woman
regardless their age without her consent or against her will as rape. Moreover,
sexual with a girl below 16 years of age who is a minor is statutory rape, regardless
of whether she consents to it or not. From the year of 2000 until 2005, reportedly a
high number of 37, 263 rape cases, involving girls as young as six years of age. This
shocking statistic showed more than half of the total rape cases were committed
against minors between the ages of 13 to 15, with up to 16, 265 victims and followed
closely behind by 10, 289 victims over the age of 182.
Recently, the nation in shock to the news of paedophile in our country had
abusing 191 impoverished children’s as in the case of R v Richard Huckle, He
admitted to 22 charges of rape against children he groomed while posing as a
volunteer working with Christian communities in the Malaysian capital. Huckle posted
pictures of the abuse of boys and girls on website which the youngest victim believed
to be around six months old. He had been arrested and jailed for life sentences. Due
to this case the government had made major protection to the rights of children with
Sexual Offences Against Child Act 2017 (SOACA). This law consists of the rights of
children in various circumstances and offences.

1
https://wao.org.my/what-is-rape/
2
https://wao.org.my/rape-statistics/

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2.0 JURISDICTION OF THE ACT

It is crucial for the criminal law to protect children from sexual abuse and
exploitation. The media tends to focus on cases where children are raped or
abducted by strangers, the sad truth is that they are far more commonly the victims
of physical or sexual abuse at the hands of family members or adults in relationships
of trust. Malaysia enacted a separate legislation to tackle child sexual offences,
Sexual Offences Against Children Act (SOACA) 2017 which is a complex piece of
legislation that creates a range of offences that is outside the Penal Code and also
charges some important aspects of the Code without formally amending it.
Penal Code will still apply to offences committed against children before 10
July 2017 the main potential offences are as follows:
i. Rape: It is rape for a man to penetrate the vagina of a female under 16 with his
penis, with or without her consent, unless the parties are married.3
ii. Carnal intercourse against the order of nature: This offence is committed if a
man has ‘sexual connection’ with a male or female child by introducing his penis
into the child’s anus or mouth, with or without consent.4
iii. Sexual connection with an object: It is an offence for any person, male or female,
to introduce an object or a part of the body other than the penis into the vagina
or anus of another without their consent.5The prosecution must prove lack of
consent unless the child is under 12 years of age6.
iv. Assault with intent to outrage modesty: This offence applies to sexual touching
that fall short of the penetration required for other offences. However,t he
prosecution must prove lack of consent unless the child is under 12 years of
age.7
v. Incest: This offence only applies if one of the specified relationships exists.
These are narrowly defined. It is also limited to ‘sexual intercourse’ and does not
cover other forms of abuse.8
vi. Gross indecency: These offences can be committed irrespective of consent. And
inciting a child to commit an act of gross indecency carries a higher maximum
penalty.9

3
Section 375(g) of Penal Code.
4
Section 377A of Penal Code.
5
Section 377CA of Penal Code.
6
Section 90(c) of Penal Code.
7
Section 354 of Penal Code read with section 90©.
8
Section 376A of Penal Code.
9
Section 377D and 377E of Penal Code.

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vii. Voluntarily causing hurt: This offence could apply if the victim suffers bodily pain,
disease or in jury as a result of sexual abuse, including psychological
harm.10Importantly, the age of consent is 18 years.11
2.1 SCOPE, DEFINITIONS AND APPLICATION OF SOACA 2017 TO THE PENAL
CODE

2.1.1 Age
SOACA creates four new sets of offences, sexual assault of a child, child
grooming, child pornography and failing to provide evidence about offences of child
sexual abuse. The new sexual offences are broad in scope and will generally be
used in preference to the Penal Code for offences of child sexual abuse which take
place after 10 July 2017.However,if charges are still brought under the Penal Code,
it will be necessary to factor in the changes made by SOACA.

For the purposes of SOACA, a ‘child’ is a younger person under the age of
12
18 . Confusingly.though ,SOACA does not change the ages applicable under other
legislation. For instance, the Penal Code still specifies the age of 16 years in the
context of rape,12 years in the context of assault with intent to outrage modesty, and
18 years for voluntarily causing hurt.

2.2 APPLICATION OF SOACA TO OTHER SCHEDULED OFFENCES

The schedule to SOACA extends several of its provisions to offences outside

SOACA. These include the provisions relating to mistakes about age, child
grooming, extra-territoriality, offences by people in positions of trust, and rules of
evidence. The schedules offences include rape, sexual connection with an object,
outraging decency and carnal intercourse against the order of nature.

10
Section 321 of Penal Code.
11
Section 87 of Penal Code.
12
Section 2 of Sexual Offences Against Children Act 2017.

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 2.2.1 Mistakes about age
SOACA contains two important amendments in relation to mistakes of age
in relation to people facing charges under SOACA or scheduled offences. Firstly,
they will not have a defence of mistake as to age unless they ‘took all reasonable
steps to ascertain the age of child’ 13.It would be appear that the intent was to narrow
the defence from what would be allowed under the normal defence of mistake. In
other words, even if the accused might have been regarded as acting ‘in good faith’
for the purposes of section 79,they will be only have a defence for child sexual
offences if they took all reasonable steps.

Secondly, the accused will be liable if they believed a person to be under

the required age even if that was not the case. However, in section 2(2) of SOACA
stated that ‘any reference to a child, shall include a person whom an accused
believes is a person of or under the age as specified’ for the offence. This means, in
effect, that even offences as serious as rape or sexual assault of a child can now be
‘though crime’ under some circumstances.

2.2.2 Extra-territorial
Offences under SOACA and scheduled Penal Code offences now have
extra-territorial reach. If an offence ‘is committed by a Malaysian citizen against any
child in any place outside Malaysia, he may be dealt with in respect of such an
offence as if the offence was committed in Malaysia’. The extra-territorial reach is
unusual but totally appropriate, and has parallels in many countries, including
Australia.

2.2.3 Additional Penalties for breaching a relationship of trust

According to section 16 of SOACA, a person who abuses a relationship of
trust in committing an offence under SOACA or a scheduled offence ‘shall’ be
punished with imprisonment of up to five years and a minimum of two strokes of
whipping in addition to the punishment imposed for the offence itself. Relationships
of trust are broadly defined to include parents, guardians, relatives, teachers,
lecturers, child care providers, people providing medical services, sport coaches and
public servants.

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Section 20 of Sexual Offences Against Children Act 2017

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 2.2.4 Evidence

SOACA makes three changes to the laws of evidence which will make it
easier to obtain convictions in the case of sexual offences against children. First, a
child is presumed to be competent to give evidence unless the court thinks
otherwise.14Secondly, the court may convict a person on the uncorroborated
testimony of the child.15Thirdly, the evidence of an agent provocateur is admissible
and the court can convict on the basis of an agent provocateur’s uncorroborated
evidence.16

2.3 SEXUAL ASSAULT ON A CHILD

Provided SOACA, the offence of sexual assault on a child divided into two
forms of assault which are ‘Physical sexual assault’ and ‘Non-physical assault’.
Physical assault is where there has been some actual touching or contact with the
child. Non-physical involves activities with no direct contact such as stalking a child
with following her, making a child do any sexual act or performing sexual acts in front
the child. The punishment for the physical assault carries maximum penalty of 20
years imprisonment and mandatory whipping. For the non-physical sexual assault
carries a maximum of 10 years imprisonment and whipping is not prescribed.17

2.3.1 Physical Sexual Assault

Section 14 of SOACA provides that:
Any person who, for sexual purposes;
a) touches any part of the body of a child
b) makes a child touch any part of the body of such person or of any other
person;
c) makes a child touch any part of the child’s own body; or
d) does any other acts that involve physical contact with a child without sexual
intercourse

14
Section 17 of Sexual Offences Against Children Act 2017
15
Ibid,s 18
16
Ibid,s 19
17
Section 14 of SOACA 2017

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 commits an offence.
Explanation 1 – The act of touching may involve the act of touching with
any part of the body or with an object and may be done through anything including
anything worn by the person touching or if the child touched.
Explanation 2 – In determining what constitutes sexual purposes, the court
may take into consideration, among others, the part of the body that is touched, the
nature and extent of the act of touching or the physical contact and all other
circumstances surrounding the conduct

Physical elements of physical assault of a child

1. It needs to cover multiple form of touching which includes but not restricted to,
penetration.
2. Includes cases where the children are made to touch themselves or other
people
3. Touching can be indirect also direct
This act does not define the term of intention of the doer in any of the
section thus it is simply that it is a matter of interference for the courts on the
particular facts of the case.

Age of consent and marital exemptions

The age of consent for rape under s375 of Penal Code is 16 years old, and
for outraging modesty it is 12 years. However, under SOACA offences is under the
age of 18 years old. In that case, SOACA criminalizes all forms of consensual sexual
contact by young people aged 16 or 17. For the marriage laws and marital rape
exemptions, Malaysian civil law sets the minimum age of marriage at 18 years old.
However, those age 16-18 can get married if they have the permission of the Chief
Minister. And under the Islamic law, children under the age of 16 can marry if the
Syariah courts allow it. So, suppose that a man has sexual intercourse with his wife
who is at the age of 14, this is not rape under s375 of the Penal Code even if the girl
did not consent because of the marital rape exemption. Even the SOACA doesn’t
apply the marital rape exemption the government said during the legislative passage
of SOACA that it was not intended to change the rules relating to child marriage and
s14(d) excludes sexual intercourse.

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2.3.2 Non-physical sexual assault with a sexual purpose
Non-physical sexual assault is covered in the section 15 of SOACA.
The offences under s 15(a) requires proof that the accused had ‘sexual purpose’.
The rest of the section does not require the proof. All the offences under s15 carry
the same maximum penalty of ten years imprisonment, or a fine up to RM 20,000 or
both.
Section 15(a) provides that:
Any person who-
a) for sexual purposes
i. utters any words or makes any sound or makes and gesture or exhibits
any object or his body or any part of his body with the intention that
such word or sound shall be heard or such gestures or object or part of
his body shall be seen by a child.
ii. Makes a child exhibit the child’s body or any part of the child’s body so
as it is seen by such person or any other person or
iii. Repeatedly or constantly follows or watches or contacts a child by any
means commits an offence.
Explanation 1-In determining what constitute sexual purposes, the court
may take into consideration, among others, the words uttered, the nature and extent
of the gestures and all other circumstances surrounding the conduct.18
This provision provides us with a clear explanation that as with physical
assault, the linchpin for the liability will be the accused person’s motive, assessed by
reference to the term for ‘for sexual purposes.’

2.3.3 Non-physical sexual assault where there is no need for a sexual purpose
Provided by section 15(b) to (f) of the SOACA, it is an offence even without
the ‘sexual purpose’:

● Engaging in an activity that is sexual in nature in the presence of a child (s 15

(c)).

● Causing a child to watch the accused or any other person engaging in an

activity that is sexual in nature. (s 15 (d)).

● Making a child engage in an activity that is sexual in nature. (s 15 (f)).

18
Section 15(a) of the SOACA

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 ● Threatening to use any representation of the body of a child, or any part of the
body of a child or of a child engaged in an activity that is sexual in nature. (s
15(b)).

● Causing a child to watch or hear any representation of the accused or any

other person engaged in an activity that is sexual in nature. (s 15(e)).
Again, here the intent is very clear. Above all, as the offences does not
need the proof of a sexual motive thus the acts ‘sexual in nature’ is critical.

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3.0 CASES RELATED TO SEXUAL OFFENCES AGAINST CHILD ACT 2017

3.1 Mohammad Izzaini bin Zainudin v Public Prosecutor [2019] 7 MLJ

Facts:
The appellant was the stepfather to the victim (‘PW3’), who was an eight year old
child at the time of incident. During the first incident, PW3 upon reaching home from
school, had put on a towel to take a shower. The appellant who had reached home
at that time had then called PW3 into his room. The appellant proceeded to unwrap
his towel and ordered PW3 to unwrap her towel. PW3 refused to do so but was
pulled by the appellant and her towel came undone and fell. The appellant ordered
PW3 to suck his penis but PW3 refused to do so. The appellant proceeded to pull
PW3’s head towards his penis and ordered PW3 to suck his penis. PW3 opened her
mouth but did not touch the appellant’s penis. The appellant ordered PW3 to close
her mouth while his penis was in her mouth. The appellant pushed PW3’s head to
enable his penis to enter her mouth. Subsequently, the appellant rubbed his penis
using his own hands until a white slimy liquid was produced. The appellant ordered
PW3 to touch the said liquid but PW3 refused to do so. The appellant then pulled
PW3’s hand and ordered her to touch the said liquid causing her to touch it. The
second incident took place after a few days where appellant had ordered PW3 to
suck his penis but PW3 refused to do so. The appellant pulled PW3’s head forward
until PW3 suck his penis. Subsequently, the appellant ejaculated and had ordered
PW3 to touch his semen. At the third incident, appellant had ordered PW3 to suck
his penis. Having ejaculated, he ordered PW3 to touch his semen but PW3 refused
to do so. The appellant took action in inserting his penis into PW3’s vagina. The
appellant was lying down while PW3 was standing in front of the appellant. The
appellant ordered the victim to come close to the appellant’s penis. The appellant got
up slightly with part of his body on the bed and part of his body off the bed. PW3
informed that the appellant’s penis penetrated a little and that PW3 felt a slight pain.
PW3 saw the appellant’s penis at the material time.

Charges:
First Charge
Appellant have committed an offence punishable under Section 377E of the Penal
Code on July 23rd, 2016 by asking the victim to suck his genitals.

Second Charge
Appellant have committed an offence punishable under Section 377E of the Penal
Code on August 4, 2016 by asking the victim to such his genitals.

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Third Charge
Appellant have committed an offence punishable under Section 377E of the Penal
Code on August 22nd, 2016 by asking the victim to suck his genitals.

Sections Applied:
Section 377E of the Penal Code

Held:
The appeals were dismissed. Appellant was sentenced to imprisonment of seven
years and one stroke of whipping for each charge and each sentence to run
consecutively.

Ratio Decidendi:
The three offences were clearly not part of the same transactions as they were
committed on three different events in spite of the fact that they occurred in the same
location and against the same victim. Not ordering consecutive imprisonment term in
such a circumstance was to give an unwarranted discount to the appellant for
multiple offences. The court had likewise considered the one-transaction rule, the
totality principle and the crushing effect in determining whether the sentences should
run concurrently or consecutively. Consequently, the court agreed with the SCJ that
the sentence of seven years imprisonment and one stroke of whipping for each
offence charged against the appellant to run consecutively.

Analysis:
Offence committed by appellant was a very serious offence thus the court in
complying with the principles of sentencing was right in concluding that deterrent
sentences ought to be imposed in such cases in views the seriousness of the
offence with the element of public interest being the paramount consideration. The
offences under Section 377E of the Penal Code carries mandatory imprisonment of
up to 14 years as well as whipping.The rampancy of such offence posed as a matter
of great concern to the government as demonstrated through the enforcement of
Sexual Offences Against Children Act in year 2017 which carries a heavier sentence
than the existing provision under the PC.

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Commentaries:
The deterrent sentence was important to send a significant message that the law
does not condone the commission of such criminal acts involving child victim, The
three offences charged against the appellant involved three different incidents at
different times and occasions and were not a continuation of an act on the same day
for all three incidents. The public interest demands justice for offences of such
serious nature involving a child victim. I am of the considered view that the SCJ had
correctly guided her mind on those suggestion and that the law was encircled so as
to ensure public from being a victim to sexual offenders such as the appellant.
Further, a strong message should be sent to the public at large that the court view
this offence with much detestation and a severe punishment should be imposed.

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 3.2 Helery Anak Bungkok v Public Prosecutor [2019] 1 LNS 315
Facts:
The appellant in had committed an offence punishable under Section 377CA of the
Penal Code and section 14(d) of the Sexual Offences Against Children Act 2017 for
crime physically sexually assaulted a child against a 10-year old girl.

Charges:

First Charge

The appellant has committed an offence punishable under Section 14 (d) of the
Sexual Offenses Against Children Act 2017by touching his penis to the girl’s vagina,
licking her vagina, squeezing and sucking her breast but without having sexual
intercourse with her.

Second Charge

The appellant has committed an offence punishable under Section 377CA of the
Penal Code by the introduction of his finger into the vagina of the girl without her
consent.

Sections applied:

1) Section 14(d) of the Sexual Offences against Children Act

2) Section 377CA of the Penal Code

Held:

The appeals are allowed, and the sentences are varied in respect of the two charges
under section 14(d) of the Sexual Offences Against Children Act 2017, the
sentences of 10 years each are to run concurrently, bearing in mind that the same
offence with the same actions was committed on the same victim within a short span
of time.

In respect of the 2 charges under section 377CA of the Penal Code, the sentences
of 10 years each are also to run concurrently, bearing in mind that the same offence
with the same actions was also committed on the same victim within a short span of
time.

Ratio Decidendi:

The concurrent imprisonment sentences under the Penal Code are to be served
after the concurrent imprisonment sentences under the Sexual Offences against
Children Act 2017 have been served. The cumulative effect is that the Appellant will

14
serve 10 years in prison under the Penal Code charges, and thereafter serve
another 10 years, under the Sexual Offences against Children Act 2017 charges.

Even if the offences perpetrated by the Appellant on a 10-yearold girl may be said to
be heinous, the court decided that the four consecutive sentences for two types of
offences at two different locations would be wrong and excessive in principle.

Analysis:

The public interest and abhorrence at the nature of the offences, as expressed by
the recent Sexual Offences against Children Act 2017 and the amendment brought
out by section 377CA of the Penal Code, has to be taken into account. The reason
that the case does apply the provision under sexual harassment against a child as
the prima facie brought by the prosecutor and that there was clear evidence of the
act when the accused himself admitted to it. Section 14(d) of the Sexual Offences
against Children Act 2017 stipulates the act of sexually violated the body of a child
and in which in this case it was the 10-yearold girl.

Commentaries:

The justification and the decision of the court of appeal in allowing the appeal to
reduce the amount of years imprisonment and whipping is justified when looking at
the person’s liberty. The contentions made by the court were justified, as the matter
a fact that the offence made was redundant with the other offence the accused
committed upon the child. However, in the perspective of justice and morally, the
accused sexually assault the young girl more than one, which may cause damages
towards the girl physically and mentally. In this sense, the girl’s welfare is much more
important as compared to the irresponsible act by the accused. Even if, the offences
were similar, we believe that the punishment should be aligned with his heinous
offence upon the child. If he committed twice the same offence, then he is liable to
face the consequences of committing the crime twice. This is something crucial that
the court should take in consideration before allowing the appeal. Therefore, the
court’s decision which merely absolve the law and not in the morally sense and the
public interest in terms of child assault clearly unjustified for the publics’ opinion.

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4.0 CONCLUSION

In conclusion, we know that the Sexual Offences Against Child Act

(SOACA) 2017 are to protect the rights of children. This Act had stated and
strengthen the law against sexual offences. Although there is Penal Code for
Criminal Cases but in this circumstance that involving children’s and minor, this act
immediately takes in action to protect them. Penal Code had jurisdiction of the
punishment and offences for sexual offences however, penal code has some limited
protection for minors such as in section 375 whereby it prohibits the rape of a minor
or in section 377(e) that prevent anyone causing a child under 14 to commit indecent
act. Our Penal code is really a good old law, but it does not enough of protection to
the minors from the aspect of sexual offences such as grooming, molestation and
child pornography. After the concern of various authorities on this issue, the
government had specifically formed this law and had effective since 2017. All the law
had each stated punishment for each sexual crime either imprisonment, fine or both
and others.
Therefore, the Sexual Offences against Child Act 2017 is in forced and
applied in our modern days to protect the rights of victims which are minors under
the age 16.

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5.0 BIBILIOGRAPHY

Penal Code (Act 574), 2019

Sexual Offences against Child Act 2017
Star,T.O.2016. Paedophile Richard Huckle who abused Malaysian Children jailed for
life. Malaysia: The online star.
Woman’s Aid Organisations, n.d.

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