Pendakwa Raya v XXXX

ka-42jsks-2-10-2024 High Court (Mahkamah Tinggi) 28 March 2026 • KA-42JSKS-2-10/2024 • 27 min read

9 cases cited (0 SG, 9 foreign)

Catchwords

CRIMINAL LAW: Penal Code – Section 375B – Gang rape – Statutory explanation of common intention – Joint liability – Whether physical penetration by every member is required to establish liability – Presence at the scene facilitating or promoting the commission of the offence tantamount to actual participation. EVIDENCE: Witness – Credibility of child witness – Contradictions between oral testimony and medical/police reports – Anal versus vaginal penetration – Principle of maximum evaluation – Discrepancies not rendering evidence inherently incredible. EVIDENCE: Adverse inference – Section 114(g) Evidence Act 1950 – Failure of the defence to call a material witness to corroborate alibi – Failure of prosecution to call peripheral witnesses – Non-production of physical exhibits (mobile phone/video recording) versus direct oral testimony. SENTENCING: Juvenile offender – Child Act 2001 – Section 91(1)(b) – Bond of good behaviour – Adequacy of sentence – Whether sentence was manifestly inadequate – Principle of proportionality versus specialised juvenile jurisprudence and rehabilitative philosophy – Mitigating factors – Effect of a guilty plea at the defence stage. SENTENCING: Penal Code – Section 52B – 'Serious offence' – Whether the statutory classification of gang rape as a serious offence overrides the specialised sentencing regime under the Child Act 2001. CRIMINAL PROCEDURE: Appeal – Appellate intervention – Threshold for disturbing trial judge's findings of fact and sentencing discretion – Delay by lower court registry in preparing the Record of Appeal (Rekod Rayuan).

Judges (1)

John Lee Kien How @ Mohammad Johan Lee Delivered

Counsel (6)

Amirul Shahidda & Co. Firm Attorney General Chambers Firm Azhar & Fazuny Firm Aisyah Al Humayrah Binti Kamaruzaman Counsel Prosecution Aqbal Shiffuddin bin Adnan Sallehudin Counsel Respondent Mohd Amirul bin Mohd Rezuwan Counsel Appellant

Parties (1)

Pendakwa Raya Appellant

Statutes Cited

Child Act 2001 (Cap 611)

Evidence Act 1950 (Cap 56)

s 114(g)

Penal Code (Cap 574)

s 375 s 375B s 377A s 52B

Cases Cited (9)

MY (9)

[1959] MLJ 159 [1985] 2 MLJ 200 [1987] 1 CLJ 540 [1987] 2 MLJ 336 [1997] 4 MLJ 113 [2016] 9 CLJ 769 [2018] 3 CLJ 681 [2021] 7 CLJ 681 [2025] 4 CLJ 837

Judgment

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Source: eJudgment (ka-42jsks-2-10-2024)