Name: Nur Dinie Sani Binti Hasrul Sani

Matric No.: A182819

Firm No.: 19
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Case name: MUHAMMAD FARIZ AFIQ MOHD ROHIZI v. PP
Citation: [2021] 1 LNS 61
Court: High Court, Taiping

A. FACTS OF THE CASE

This is an appeal case from the Sessions Court Kuala Kangsar, pertaining to a sexual assault
on a 10-year-old child, M by Muhammad Fariz Afiq (hereinafter referred as “the accused”)
which he was found guilty, sentenced with 8 years of imprisonment, 4 strokes of whipping
and undergo police supervision for two years on release from prison.
The facts followed that on 28.9.2014 at about 5 pm, M who was playing football, was called
by the accused, supposedly to tell M about worms in the body. M then followed the accused
to a nearby surau. There the accused purportedly asked M if he knew where worms originated
in the body and how they were dispelled from the body. The accused also showed pictures of
worms breeding in the stomach to the victim, using his laptop. The accused then touched M’s
stomach and posterior to illustrate where and how worms breed and dispelled from the body.
He had then asked victim M to remove his trousers, which the boy initially refused, but the
accused compelled him to do so. The accused then asked M to spit on his finger. He then
smeared M’s saliva all over his finger, and inserted one finger and then two fingers into M’s
anus. The victim said that the accused did the finger insertion five times and it was moved in
and out of the boy’s anus. The victim did not like what was done to him and told the accused
to stop. The accused stopped. M left for his home. Once at home, he sat next to his mother
(SP2) on the sofa and told her that he was experiencing pain at his anus. When questioned
further, he related what had happened earlier. His mother was shocked and told her husband
of the matter later that night. Subsequently, M, accompanied by his father lodged a police
report of the crime. When M told his mother, SP2 of the act perpetrated by the accused on
him, it was still fresh in his mind, as it was just at the end of that woeful day. Further, on the
same night at 10.15 pm, he lodged a police report on the incident that had befallen him.

B. ISSUES RELATING TO THE LAW OF EVIDENCE

Whether M’s identification of the accused through identification parade & dock identification
in court amounts to positive and substantive evidence of identification pursuant to section 9
of the Evidence Act 1950?

C. ARGUMENTS BY THE PUBLIC PROSECUTOR

None.
D. ARGUMENTS BY THE DEFENDANTS
Fariz admitted to have seen M and communicated with him. Albeit the admission, issue
pertaining to M’s identification was raised where he appealed that the police investigation
was incomplete.
The accused attended an identification parade (ID parade), where there was only one
identification parade held, in which the accused was identified by M, by pointing to him.

E. DECISION & JUDGEMENT

The High Court dismissed the appeal. Although there were missteps at the parade, M had
identified the 9th person in the row as the accused. Subsequently, there was dock
identification of the accused in court by the victim, which amounts to positive and
substantive evidence of identification pursuant to section 9 EA and his earlier identification at
the identification parade corroborates the same (PP v. Richard Devadasan a/l Sabariah
[2015] 3 MLJ 17, CA).
Identification at the parade and dock, is made possible as the sexual exploitation took place
face to face and at close range.
The High Court affirmed the sentence of imprisonment to a term of 8 years and whipping of
four strokes. Further, the accused is ordered to undergo rehabilitative counselling whilst
serving term of imprisonment