Criminal Law

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CRIMINAL LAW & PROCEDURE II
GLUP 2064
Group A
CASE REVIEW: Mohd Hanafi Ramly vs
Public Prosecutor [2012] 2 CLJ
PREPARED BY:
ASMAH BINTI CHEWAN 226388
PREPARED TO:
DR. ASPALELLA BINTI ABDUL RAHMAN
SUBMISSION DATE:
18TH OF MARCH 2015

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CONTENTS
NO. TOPIC PAGE
1. 1.0 Introduction 3
2. 2.0 Facts of the Case 3
3. 3.0 Issues 5
4. 4.0 Law Applicable 5
5. 5.0 Judgment of the Court 7
6. 6.0 Analysis 10

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1.0 INTRODUCTION
Journal: Current Law Journal (CLJ)
Case: Mohd Hanafi Ramly vs Public Prosecutor
Citation: [2012] 2 CLJ
Judge Panel: John Ko Wai Seng JC
Judgment Date: 20th April 2011 at High Court Sabah & Sarawak, Bintulu.
2.0 FACTS OF THE CASE
A school teacher was found guilty by the Sessions Court on three charges of
committing sexual offences against one of his pupils, a 10-year-old girl. On the first charge of
kissing her on the mouth and sucking her breasts, the appellant was sentenced to three years’
jail. On the second charge of committing carnal intercourse against the order of nature,
namely, asking her to perform fellatio, the appellant was sentenced to five years’ jail and
three strokes of whipping. While on the third charge of insulting the girl’s modesty by asking
her to strip naked and taking a photograph of her in the nude, the appellant was sentenced to a
year’s jail. Thus, the appellant appealed to the High Court against his conviction and
sentence.
There were few witnesses which are almost at the same age as victim have seen the
offence made by accused and they gave out unsworn statement. However, they had pleaded
that they had been advised by their teacher on what to say during investigation. Learned
council for appellant then stated that one of the witnesses, PW4 as being only eight years of
age did not understand the nature and consequences of the oath because she had admitted
during examination that she did not know what the oath was. Besides, it is generally accepted
in practice not to act on uncorroborated evidence of a child, particularly in sexual offences.
Apart from that, the appellant also has been charged on separate charges over his
offence. The judgement from the Session Court stated that two offences cited in the first and
third charges by virtue of the dual dates of commission created separate offences and should

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each have been the subject of a separate charge. For the first charge as stated under Section
354 of the Penal Code is by kissing her mouth and sucking her breast. The second amended
charge under Section 377B of the Penal Code is by committed carnal intercourse against the
order of nature with Victim by asking her to suck the appellant’s private part. Meanwhile the
third charge under Section 509 of the Penal Code by asking her to take off her clothing and
taking her nude photograph.
Those separate actions have created separate offences, thus lead to separate
punishments under the Penal Code of Malaysia. The appellant was found guilty and
convicted by the learned Sessions Judge on all three charges which are for the first charge
under Section 354 of the Penal Code, he was sentenced to three years imprisonment, for the
second charge under Section 377B of the Code he was sentenced to 5 years imprisonment
and 3 strokes of whipping and then for the third charge is under Section 509 of the Code, he
was sentenced to one year imprisonment. Based on those judgements, appellant then being
dissatisfied with the decision on all three charges of the learned Sessions Judge, thus appeals
against both conviction and sentence.
Learned counsel for the appellant submitted that the first and third charges preferred
against the appellant are illegal and bad in law for duplicity or multiplicity rendering the trial
a nullity. The learned counsel for the appellant submitted that the defence is embarrassed and
very confused as to the offences in the first and third charges preferred against the appellant.
Learned counsel for the appellant contends that the appellant was charged under the first
charge for assault or criminal force to the victim on two separate occasions which is on 13
May 2009 and 14 May 2009 in a single charge as stated under Section 324 of Penal Code.
Thus, duplicity arises in regard to the time of the commission of the offence on 13 May 2009
and 14 May 2009.
Based on Session Court judgements, accused made an appeal to High Court against
his conviction and sentence.

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3.0 ISSUES
The issue here is whether ten years old victim understood nature and consequences of
oath and the court should accept the unsworn evidence given. The other issue is whether the
conviction was based on uncorroborated evidence of child. There is also an issue whether
appellant should be punished with separate charges over the close proximity of the offence.
4.0 LAW APPLICABLE IN THIS CASE
PENAL CODE (ACT 574)
Section 354; Using criminal force to a person with intent to outrage modesty.
Whoever assaults or uses criminal force to any person, intending to outrage or
knowing it to be likely that he will thereby outrage the modesty of that person, shall be
punished with imprisonment for a term which may extend to ten years, or with fine or with
whipping, or any two of such punishments.
Section 377B; Punishment for Committing carnal intercourse against the order of nature.
Whoever voluntarily commits carnal intercourse against the order of nature shall be
punished with imprisonment for a term which may extend to twenty years, and also be liable
to whipping.
Section 509; Word or gesture intended to insult the modesty of a person.
Whoever, intending to insult the modesty of any person, utters any word, makes any
sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or
that such gesture or object shall be seen by such person, or intrudes upon the privacy of such
person, shall be punished with imprisonment for a term which may extend to five years or
with fine, or with both.
Section 351; Assault.
Whoever makes any gesture or any preparation, intending or knowing it to be likely
that such gesture or preparation will cause any person present to apprehend that he who

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makes that gesture or preparation is about to use criminal force to that person, is said to
commit an assault.
Explanation— Mere words do not amount to an assault. But the words which a person uses
may give to his gestures or preparation such a meaning as may make those gestures or
preparations amount to an assault.
CRIMINAL PROCEDURAL CODE (ACT 593)
Section 163; Separate charges for distinct offences.
For every distinct offence of which any person is accused there shall be a separate
charge, and every such charge shall be tried separately, except in the cases mentioned in
Sections 164, 165, 166 and 170.
Section 419; Proceeding in wrong place, etc.
No finding, sentence or order of any criminal Court shall be set aside merely on the
ground that the inquiry, trial or other proceedings in the course of which it was arrived at,
passed or made, took place in a wrong local area or before a wrong Magistrate or Court,
unless it appears that such error occasioned a failure of justice.
Section 422; Irregularities not to vitiate proceedings.
Subject to the provisions contained in this Chapter no finding, sentence or order
passed or made by a Court of competent jurisdiction shall be reversed or altered on account
of—
(a) Any error, omission or irregularity in the complaint, sanction, consent, summons,
warrant, charge, judgement or other proceedings before or during trial or in any
inquiry or other proceeding under this Code;
(b) The want of any sanction; or
(c) The improper admission or rejection of any evidence,
Unless such error, omission, irregularity, want, or improper admission or rejection of
evidence has occasioned a failure of justice.

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5.0 JUGDEMENT OF THE HIGH COURT
Based on the facts given, for the issue of duplicity of charges, the high court ruled that
the two offences cited in the first and third charges by virtue of the dual dates of commission
created separate offences and should each have been the subject of a separate charge. This
duplicity could be struck down by Section 163 of Criminal Procedural Code (CPC) which
stated separate charges for distinct offences. However, as the offences were of the same kind
and could be tried together as Section 164 CPC, such duplicity was an irregularity curable
under Section 422 CPC provided there was no failure of justice. There was no miscarriage of
justice from the duplicity in the two charges as each clearly stated the offence committed and
the two different dates of their commission.
The session judge also had not erred in accepting the evidence of the victim’s
classmate witnesses to independently corroborate the victim’s sworn evidence. Besides,
defence had failed to raise a reasonable doubt on the prosecution’s case. There was no error
of law or facts, or that a wrong principle had been applied or omitted or that the sentence was
manifestly excessive to justify interference with the sentence of the Sessions Court. This can
be seen in the case of Jagar Singh v. PP1, where the appellant therein was convicted on the
two charges over the same offence which is driving carelessly and driving without reasonable
consideration resulting in a collision of the accused car with a Police.
Apart from that, Section 163 of CPC has stating two rules which are firstly, the
section requires that for every one distinct offence there has to be a separate charge. This first
rule embodies the rule against duplicity which is a prohibition against the lumping or
incorporating of more than one offence in a single charge. The object of this rule is to give
the accused notice of the precise accusation in writing which he has to face at the trial. For
instance if one charge states two offences, he cannot know for which of the two offences he is
to be prosecuted. The risk of confusion of issues may also embarrass the accused in his
defence. Meanwhile the second general rule requires that every charge to be tried separately,
except in the cases mentioned in sections 164, 165, 166 and 170 of the CPC. This general rule
incorporates the rule against misjoinder of charges. The underlying idea behind this rule is
1 [1936] 1 LNS 25

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that if too many charges are grouped together against an accused person, he might be
handicapped or embarrassed in conducting his defence.
In relation to Section 163 of CPC the court has to consider the whole intention of the
third charge in regard to Section 509 of the Penal Code. Under the third charge, the
appellant was charged for intending to insult the modesty of the victim on 13 May 2009 by
ordering her to take off her clothes and by taking her nude pictures, and intending to insult
the modesty of the victim on 14 May 2009 by ordering her to take off her clothes and by
taking her nude pictures. Even if the third charge as framed is bad, the appellant had not
shown that it has created a miscarriage of justice and it is a defect that is curable under
Section 422 of our CPC as elaborated below in respect of the duality from the dates charged.
Thus, by ordering to take off her clothes and by taking her nude pictures does constitute two
offences under Section 509 of the Code. In the case of Lee Chin Kee v. Public Prosecutor2,
it was held that duplicity of charges is an irregularity and not an illegality that can be cured
under Section 419 of the Criminal Procedure Code 1926 provided such irregularity has
occasioned no failure of justice based on this citation when the defect is one of duplicity and
not misjoinder this section may be applied. It must be noted that duplicity is an irregularity
and not an illegality.
For the issue of whether court should have taken the evidence by 8 years old witness,
the high court upheld the Session court judgment. Even though there were no nude photos
found in any of the appellant’s phone, camera and laptop, the learned DPP submitted that it
will not destroy the third charge against the appellant for the offence under Section 509 of the
Code. The learned DPP further submitted that the forensic report is not a mandatory
requirement to prove the appellant had taken victim’s naked photograph. It is only a weight to
be attached and the negative report of it will not be fatal to the case. What is important is the
evidence of the victim as she was the one who experienced the insulting outrages on the night
of 13 May 2009 and 14 May 2009.
Thus, the High Court was in opinion that the punishment must not only deter the
appellants from committing a similar offence in the future but it must also deter others from
committing such an offence thus upheld the conviction made by Session Court. The reason is
the punishment inflicted for grave offences including the crime of rape should adequately
reflect the revulsion felt by the great majority of society. Punishment has to be sufficiently
2 [1935] 1 LNS 29

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harsh and proportionate to the harm done, otherwise society will feel that the punishment is
manifestly inadequate. It must also reflect public disapproval of the crime committed by the
appellant.
Thus, by looking at the facts before the learned Sessions Judge and his conclusions in
his judgement, the court can find no errors of law or facts, or that a wrong principle has been
applied or omitted or that the sentence was manifestly excessive in respect of the facts of the
case of a perverted teacher preying on his charge who is a child to justify this court to
interfere with the sentence handed down by the Sessions Court. The court is of the view that
the prevalence of such teacher-student outraging and molestation cases justifies an even
harsher sentence and the evidence given by witnesses is in corroboration of law.
The appeal against sentence is dismissed.

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5.0 ANALYSIS
Based on the judgement made by High Court, I am agreed that the High Court upheld
the previous judgment made by Session court. On the issue that whether evidence given by
the eight years old child is in corroborative in law, I am in the opinion that those evidence
shall be taken as crucial evidence since there were few of witnesses giving the same
evidence. Even they were kids and during investigation they told that they had been advised
by their teachers on how to answer properly, but they did not lie and just giving out statement
based on what they have seen.
As in relation of offence of assault or criminal force made by appellant, I am in the
opinion that the accused person had used criminal force against victim by kissing her mouth
and sucking her breast, asked her to perform fellatio and taking her nude photos after asked
her to strip naked which is not in the form of assault. It must be noted that according to the
case of Fagen v MPC3, assault is considered as any act which is intentionally or possibly
recklessly causes another person to apprehend immediate and unlawful violence that causes
fear of immediate attack. Meanwhile in the case of Lewis4 the gist of the assault offence is
the creation of fear in another’s mind. If there is fear, so there can be an assault like has been
stated in Section 351 of Penal Code. Thus, in the case of Hanafi Ramly, there was no proof
of causing fear in the mind of victim when she was sexually assaulted by accused, meaning
that there was no form of assault has been used on victim instead of criminal force.
Criminal force means whoever intentionally uses force to any person, without that
person's consent, in order to the committing of any offence. It must be noted that for criminal
force to be used, there must be elements of mens rea in the mind of accused person. Mens rea
of criminal force has two requirements which are intentional use of force and also ulterior
purpose of the accused when the actus reus committed. This can be seen in this case where
accused person sexually assaulted victim with intention and without victim’s consent since
she was still minor and does not know the nature of offences made to her. In this case,
Section 354 of Penal Code is best authority to be used to punish accused person for using
criminal force to victim with intention to outrage modesty.
3 [1969] 1 QB 439]
4 [1970] Crim LR 647]

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It must be noted that there are few distinction between assault and criminal offence
under Penal Code. They deal with different stages of the commission of offence with
different effects. Legally, assault denotes the preparatory acts which cause apprehension of
the use of criminal force against the person and it falls short of actual use of Criminal force.
Meanwhile, Criminal Force is causing motion, change of motion or cessation of the motion
without the consent of the person, in order to commit an offence or intending to cause or
knowing it will cause injury, fear or annoyance. Here, accused person had made criminal
offence through causing motion by kissing her mouth, sucking her breast, asking her to
perform fellatio under carnal intercourse and also taking her nude pictures.
Apart from that, in the issue of duplicity of charges, I am agreed with the judgement
of the Session Court. This is because a person shall be liable of each offence made by them
even there were series of act, they should be punished by series of charges as well. Besides,
when it comes to rape or sexually assaulted cases, the punishment towards the wrongdoer
shall be heavier. This is important to make sure it becomes a lesson for society and also to
show that we are against these offences from keep happening in this nation.