(Cabul) Prem Anand

[2021] 1 LNS 1693 Legal Network Series
IN THE HIGH COURT OF MALAYA

AT GEORGETOWN PENANG
[CRIMINAL APPEAL NO: PA-41 S-18-11/2019]
BETWEEN
PREM ANAND LOGANATHAN … APPELLANT
AND
PUBLIC PROSECUTOR … RESPONDEN
[In the Matter of The Magistrate Court at Georgetown, Penang

Criminal Trial No: PA-83JS-06-07/2017]
Between
Public Prosecutor
Prem Anand Loganathan
GROUNDS OF JUDGMENT
MATTER BEFORE THIS COURT
[1] This is an appeal by the Appellant against both conviction and

sentence following the decision of the Magistrate Court in
convicting him for an offence under section 354 of the Penal
1
Code and sentencing him to 3 years imprisonment and a fine of

RM7,000 (in default 12 months imprisonment).
THE CHARGE
[2] The charge (herein after referred as “Charge”) before the

Magistrate Court is as follows:
“Bahawa kamu pada 6/7/2017 jam lebih kurang 11.30 malam di

parking berdekatan pusat hiburan PSCC, Lebuh Pantai di dalam
Daerah Timur Laut, di dalam Negeri Pulau Pinang ke atas
menggunakan kekerasan jenayah ke atas Tan Zhi Qing [960209-
07- 5352] umur 21 tahun, dengan maksud untuk mencabul
kehormatannya, dan dengan itu kamu telah melakukan satu
kesalahan yang boleh dihukum di bawah seksyen 354 Kanun
Keseksaan”.
PROSECUTION’S CASE
[3] A total of 4 witness were called for the Prosecution including

the complainant ('SP2’), Cheah Yueh Hoong, a friend of the SP2
(‘SPY), Inspektor Rosliza binti Noordin who was the initial
investigating officer (‘SP3’) and ASP Mohd Fairuz bin Mostafa,
investigating officer (‘SP4’).
[4] SP2 had worked as a waitress at a club known as PSCC (‘Club’).

On 6.7.2017 the Appellant had patronized the club for drinks.
SP2 had waited on him and served him alcoholic drinks. At
approximately 11 PM, SP2 had agreed to the request of the
Appellant to accompany him to his car which was parked some
distance away from the Club.
2
[5] Both SP2 and the Appellant walked past some parking areas and
then entered a dark alley towards the place where the Appellant
had parked his car. Whilst walking along a dark alley the
Appellant had allegedly pulled SP2’s hand and led her to a small
access way in a building that had a closed door (‘Scene’). The
location of the Scene was marked ‘X’ in the sketch plan (exhibit
P5) by SP3. The Scene was also identified by SP2 based on the
photographs in exhibits 1Ato 1D.
[6] It was there that the Appellant had allegedly kissed her a few
times on the mouth, placed his hand into her trousers and
touching her intimate part. SP2 was shocked and fell seated on
the floor of the access way and then the Appellant picked her
up, kissed her again and then lowered his pants, took out his
penis and asked SP2 to perform oral sex or alternatively
masturbate him. SP2 refused and it was alleged that the
Appellant then masturbated and ejaculated onto SP2’s left leg
and trousers. The Appellant also fondled her breasts. At all
material times SP2 did not consent to any of the acts committed
by the Appellant.
[7] SP2 testified that she had resisted all the Appellant’s advances
and acts by attempting to push him away but was unsuccessful.
She could not run away as the Appellant was bigger than her.
The Appellant had also allegedly asked SP2 how much it would
cost a night to sleep with her to which SP2 replied that she did
not want to do such a thing. The Appellant then tidied her up
and told SP2 what happened was not serious as “we didn’t fuck,
we just kiss”. The Appellant then left the Scene and SP2
returned to the Club.
[8] SP2 stated that she was shocked and distraught over the alleged
incident and had cried after she fell seated on the floor. When
3
she returned to the Club she called SP1. SP2 was emotionally
disturbed and continued to cry. When SP1 came to meet her SP1
witnessed her emotional state and testified that SP2 was crying.
SP2 relayed to him on what had happened. SP1 also observed
that there were white paint stains on SP2’s clothes.
[9] It was the Prosecution’s case that the white paint stains on the
left side of SP2’s shirt and trousers were caused by the alleged
incident when SP2 stood against the corner of the wail at the
Scene and then fell seated on the floor.
[10] SP1 then accompanied SP2 to lodge a police report dated

7.7.2017 (exhibit P2) (‘First Report’). A second police report
was made by SP2 on 11.7.2017 to clarify and add further
information to the First Report (‘Second Report’). Later, on
15.7.2017 SP2 handed over to the SP3 the clothes that she wore
on the night of the incident (exhibits P8A, P9A and P10A).
[11] There are no independent witnesses who saw the incident as

alleged by SP2.
DEFENCE CASE
[12] The defence case as presented through the Appellant (SD1) is

straight forward in that the alleged incident as claimed by SP2
did not happen at all.
[13] The Appellant’s version of the events was that SP2 had walked
with and accompanied him to his car. Before that at the Club,
SP2 had told him of her financial problems and the Appellants
had offered to assist her through his office as a Chairman of the
JKKK Paya Terubong and special assistant to a member of the
Penang State Assembly. The Appellant admitted to paying her a
tip of approximately between RM50- 100 but SP2 had requested
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for more tips to which the Appellant refused. SP2 had willingly
followed him to his car as SP2 told him that she too wanted to
go to his car. Whilst walking together SP2 continually asked for
tips to which the Appellant refused. Upon reaching his car he
left SP2 and he did not know where SP2 went.
FINDINGS BY THE TRIAL COURT
At the end of Prosecution's case
[14] At the end of the Prosecution’s case the Magistrate found that
there was a prima facie case against the Appellant based on the
testimonies of SP1, SP2 and SP3 and the consideration of
corroborative evidence that proved that the alleged incident as
claimed by SP2 did happen. These corroborative evidence
include: (i)the evidence of SP1 who saw SP2 in tears; (ii) the
CCTV recording (exhibit P12) that showed SP2 and the
Appellant walking into the alley way; (iii) the white paint stains
on the clothes of SP2 that were seen by SP3 and SP4; and (iv)
the police reports lodged by SP2; and (v) conduct of SP2 in
making the First Report soonest after the incident that pointed to
the truth of the fact that such an incident did occur.
[15] in arriving at her decision the Magistrate found, inter-alia, that

SP2 was a reliable and truthful witness despite some
inconsistencies in her answers during cross-examination. The
Magistrate accepted SP2’s explanation in re-examination to her
answer during cross-examination when she agreed that there was
no force used against her by the Appellant as a
misunderstanding of the translation given by the court
interpreter where she thought no criminal force meant she was
not physically assaulted. The Magistrate also dismissed the
5
differences between the First Report and Second Report as not

being material since police reports are only meant to serve as
the cause to launch an investigation. In any event, the
Magistrate opined, the differences were expected given SP2’s
state of mind when she made the First Report. The Magistrate
also concluded that the incident occurred in a short span of 3 to
5 minutes and therefore SP2 did not have the opportunity to
shout or make an escape as he had her back against the wall and
the Appellant was kissing SP2.
[16] in finding that there was use of criminal force with intent to
outrage the modesty of SP2, the Magistrate accepted SP2’s
evidence in toto that the alleged incident happened as described
by SP2. The Appellant’s act of kissing SP2, putting his hand
into SP2’s trousers until she fell seated and then masturbating
constituted criminal force and had outraged the modesty of SP2
as a woman.
[17] Based on those considerations, the Magistrate was satisfied that

the elements of the offence under section 354 of the Penal Code
was proven, they being (i) that SP2 is a woman; (ii) there was
use of criminal force intended to outrage the modesty or
knowing that it will outrage the modesty of SP2.
At the end of Defence Case
[18] At the end of the defence case the Magistrate found that the
Appellant’s defence was a mere denial, not supported by
believable evidence, self-serving assertions devoid of any merits
and failed to raise any reasonable doubt. The Appellant was
accordingly found guilty as charged and convicted for the
offence.
6
GROUNDS OF APPEAL
[19] The Appellant’s Grounds of Appeal against both conviction and

sentence are as contained in the Petition of Appeal at pages 8-19
of Volume 1 of the Record of Appeal. Essentially the Appeal
rests, inter- alia, on the following issues:
(a) The Magistrate erred in law and fact in failing to consider

the discrepancies and inconsistencies in the evidence of
SP2;
(b) The Magistrate erred in law and fact in finding that the
evidence of SP2 was not challenged by the Appellant and
thereby committing a serious misdirection and error;
(c) The Magistrate erred in law and fact in failing to evaluate

all the evidence in finding that there was criminal force
and outrage of modesty committed by the Appellant
against SP2;
(d) The Magistrate erred in law and fact in accepting the

police reports by SP2 as corroborative evidence;
(e) The Magistrate erred in law and fact in making certain

crucial finding of facts that were not supported by
evidence;
(f) The Magistrate erred in law and fact in failing to consider

that the police investigations were incomplete; and
(g) The Magistrate erred in law and fact in categorizing the

Appellant’s defence as a mere denial and after thought
when numerous challenges were made to the Prosecution’s
case; and
7
HEARING OF THE APPEAL
[20] It is the duty of this Court hearing this Appeal to determine if

the Magistrate had made the correct evaluation of all facts and
evidence to arrive at the conclusion that the Prosecution had
proven a prima facie case as per the Charge and that at the end
of the Defence case the Appellant had failed to raise any
reasonable doubt to warrant a finding of no guilt. As stated by
Azahar Mohamed JCA (as he then was) in Davendar Singh Sher
Singh v. PP [2012] 1 LNS 261 /[2012] MLJU 321.
[9] an appellate court is generally very reluctant to disturb a finding

of fact by any trial judge for the reason that as trier of fact the
trial judge has audio-visual advantage which we do not have.
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. Public prosecutor [2005] 1
CLJ 85). It is also his duty to consider the entire evidence
presented before him, including the evidence which favours the
defence. On what constitutes judicial appreciation of evidence,
it is apt to bear in mind the following words of Gopal Sri Ram
JCA (as he then was) in Lee Ing Chin v. Gan Yook Chin [2003] 2
MLJ 97 :
8
“A judge who is required to adjudicate upon a dispute must

arrive at his decision on an issue of fact by assessing,
weighing and, for good reasons, either accepting or
rejecting the whole or any part of the evidence placed
before him. He must, when deciding whether to accept or
to reject the evidence of a witness, test it against relevant
criteria. Thus, he must take into account the presence or
absence of any motive that a witness may have in giving
his evidence. If there are contemporary documents, then he
must test the oral evidence of a witness against these. He
must also test the evidence of a particular witness against
the probabilities of the case. A trier of fact who makes
findings based purely upon the demeanour of a witness
without undertaking a critical analysis of that witness’
evidence runs the risk of having his findings corrected on
appeal. It does not matter the approach to judicial
appreciation of evidence is the same.”
[21] At the hearing of this Appeal, Learned Counsel for the

Appellant submitted a series of written submissions and replies.
It is sufficient for the purpose of this Grounds of Judgment to
refer to some of the issues raised by Learned Counsel for the
Appellant during oral submissions: (a) there were material
inconsistencies and contradictions in the testimony of SP2; (b)
there is a doubt on where the alleged incident took place; (c)
material differences between the First Report and Second
Report; (d) SP2, SP3 and SP4 did not make an affirmative
identification of the woman and man who were seen walking
together towards the dark lane in the CCTV recording (exhibit
P12); (e) SP2 did not identify the clothes she wore on the night
of the incident (exhibits P8A, P9A and P10A) and did not offer
any explanation how the white paint stains appeared on her
9
clothes; (f) SP2 admitted that there were no criminal force used
and that the Appellant did not lower his pants and masturbated;
(g) the conduct of SP2 in not shouting or fleeing from the Scene;
(h) the conduct of SP2 in not agreeing to subject herself to
medical examination after the alleged incident and in failing to
assist SP4 in investigations despite requests which are
inconsistent with the conduct of a victim of a sexual offence;
and (h) failure by the Magistrate to judicially evaluate all
evidence and making findings of facts not supported by
evidence.
[22] The Respondent submitted that based on the consideration of the

following facts and evidence the offence was proven according
the Charge: (a) that both SP2 and the Appellant were seen
walking together towards the dark alley; (b) the testimony of
SP1 and SP3 corroborated SP2’s evidence that she was
distraught and was in tears; (c) the white paint stains on SP2’s
clothes were consistent with her description of where she stood
at the corner of the Scene; (d) the presence of the white paint
stains were seen and confirmed by SP1 and SP3; (e) that the
space of approximately 17 minutes between the time SP2 and the
Appellant were seen entering the dark alley and when SP2 was
seen returning to the Club as shown in the CCTV recording
provided the opportunity of time to the Appellant to commit the
crime.
Analysis of facts and evidence
Regarding location of the alleged incident
[23] In her oral testimony SP2 stated that the Appellant had pulled
her hand into the access way after they entered the dark alley.
10
She identified the Scene based on the photographs exhibits

P1(A) to P1(D). She did not however state that she brought SP3
to the Scene. SP3 testified that SP2 brought her to the Scene and
pointed to her where the alleged incident occurred. SP4’s visit
to the Scene was based on the investigation papers her acquired
after taking over the investigations from SP3.
[24] In the First Report, SP2 stated that the incident allegedly
happened after she and the Appellant arrived at the parking area
whilst in the Second Report she stated that the incident occurred
whilst she and the Appellant were on the way to the parking
area. In cross-examination SP2 admitted that both the locations
described in the First Report and Second Report were different
and she also admitted that her description of the incident
happening at the dark alley was only disclosed for the first time
at the trial.
[25] In contrast, when SP1 was shown exhibits P1 (A) and P1 (B) he
testified that the place was the toilet at the rear of the building
where he had waited to meet SP2 after she had called him. This
of course amounted to a material contradiction to the evidence
that were later given by SP2 and SP3. The Prosecution did not
attempt to elicit any clarification from SP2 or SP3 to explain the
contradiction and thus the contradiction remained part of the
Prosecution’s case. In Ho Tze Kean vPP [2018] 3 CLJ 71
/[2018] 2 MLJ 721 the Court of Appeal stated:
[35] We have perused the learned judge’s grounds of judgment

and we agreed that His Lordship did not at all consider the
evidence of PW8 which supported the accused's defence. The
learned judge commented that it is highly improbable that the
accused’s wife would have framed her husband into the
commission of an offence. This is not the defence’s version. The
11
defence’s version was that the accused was just helping the wife
in her business. Without considering the evidence given by PW8
which corroborated the accused’s evidence coupled with the fact
that the accused’s wife had gone into hiding, the learned trial
judge branded the accused as an ignorance simpliciter for not
examining the contents of the cream plastic bag.
[36] In John a/k Nyumbei v. Public Prosecutor [2007] 7 MLJ

206; [2007] 2 CLJ 509 this court had decided as follows:
Now, among the general rules that govern judicial

appreciation of evidence in both civil and criminal causes
in the adversarial system of justice there is one
fundamental importance. It is that a party is bound by the
evidence of witnesses whom he calls in proof of his case.
See M Ratnavale v. S Lourdenadin [1988] 2 MLJ 371.
(Emphasis added.)
[37] The piece of evidence given by PW8 which supported the

defence’s version was not challenged and not even rebutted by
the prosecution. Yet, we found that this piece of evidence was
not considered by the learned trial judge when His Lordship
evaluated the defence case.
[26] The evidence of SP1, SP2 and SP3 therefore revealed conflicting
evidence and multiple possibilities on where the alleged incident
had actually taken place: (a) that the alleged incident did not
happen at the Scene in exhibits P1 (A) and P1 (B) since that was
the place SP1 waited to meet SP2; (b) that the alleged incident
happened at a parking area and not at the Scene based on the
First Report; (c) that the alleged incident occurred at some place
on the way to the parking area as contained in the Second
Report; and (d) that the incident occurred at the Scene as
described by SP2 and identified via exhibits P1(A) and P1(B).
12
Whilst the Scene could be said to be the place where the

incident occurred since it is on the way to the parking area as
stated in the Second Report, yet it would be pertinent to note
that SP1 who assisted SP2 in making the First Report testified
that when he met SP2 she had informed him that the incident
occurred after they arrived at the parking area and not any
earlier at some other place.
[27] Thus, in this Court’s view SPTs evidence caused 2 sets of

conflicting evidence to be presented in the Prosecution’s case.
Since the contradiction was not explained there exist a doubt as
to where the alleged incident actually took place and that doubt
must be applied in favor of the Appellant. As held by the Court
of Appeal in in the case of Goh Ming Han v. PP [2015] 3 MLJ
781 /[2015] 3 CLJ 17:
[11] Despite this glaring contradiction in the testimonies of SP2

and SP3 on the one hand and SP8 on the other, the learned
judicial commissioner found all three of them to be truthful
witnesses when he said 'Saya mempercayai SP2 dan SP3’ and
later ‘Saya juga mendapati tidak ada alasan untuk saya untuk
tidak mempercayai keterangan SP8 ...' (p 24 of the judgment).
[12] With due respect to the learned judicial commissioner, he

was not at liberty to accept both versions to be credible when
the two versions were irreconcilable and in total conflict with
one another. Either he believed SP2 and SP3 or he believed SP8
or he disbelieved all three of them. The learned judicial SP3
corroborated the evidence of SP8.
[13] The contradiction gives rise to the question; what did the
prosecution prove at the close of its case in relation to custody
or control of the container that contained the drugs? Was the
container lying on the floor and picked up by the police or was
13
it picked up by the appellant and handed to SP8? This fact was

never established one way or the other as the learned judicial
commissioner did not make a finding either way.
[14] The contradiction is serious and cuts deep into the

prosecution case as it involves the crucial question of whether
the drugs were in the appellants' custody or control at the time
of the raid. It is trite law that where there is a doubt on any
essential element of the charge the doubt must be resolved in
favour of the accused especially where as in this case the doubt
arose from the prosecution's own evidence.
[27] What is clear in this case is that there were two conflicting
sets of factlaid out before the court over the issue of custody or
control, one favourable to the appellant and the other
unfavourable to him. The evidence that is favourable to the
appellant is the evidence of SP2 and SP3 that the container
containing the drugs was lying on the floor, thus negating
custody and control on the part of the appellant. The evidence
that is unfavourable to the appellant is the evidence of SP8
which shows otherwise.
[28] In this kind of situation the evidence that is favourable to

the appellant must be taken to be the truth unless for good
reasons the learned judicial commissioner had accepted the other
contradictory evidence to be the truth, which unfortunately he
did not when he accepted both versions to be true. It is trite
jurisprudence that in a doubtful situation such as this the law
leans in favour of the accused person. The prosecution’s failure
to explain the conflict in evidence means that custody or control
had not been proved in order to activate the presumption of
knowledge under s. 37(d) of the DDA.
14
[28] In this Court’s view the Magistrate had failed to direct her
judicial mind to evaluate these conflicts in finding that the
alleged incident had in fact occurred that the Scene marked as
‘X’ in exhibit P5.
[29] Further to that, if SP2’s evidence that the alleged incident

happened at the Scene were to be accepted, then this conflicted
with the particulars of the Charge with respect to where the
offence had taken place. The Charge stated that the offence
happened at a parking lot and not at an access way at the side of
a building. This conflict was not remedied by the Prosecution
after SP2 had given her evidence. Thus, in this Court’s view
there was a material difference between SP2’s evidence and
particulars of the Charge on where the alleged incident
happened. For that reason the Prosecution cannot be said to have
proven as per the Charge that the alleged incident happened at a
parking area.
Regarding criminal force and outrage of modesty
CCTV recording
[30] Upon perusing the Notes of Proceedings, this Court found and
this was not dealt with by the Magistrate, that the Prosecution
failed to show the CCTV recording to SP2 and thus she did not
identify the woman and the man seen walking together towards
the dark alley as herself and the Appellant. No identification
was also made by SP3 and SP4. Thus, there is no evidence on
record that the woman and the man in the CCTV recording who
were seen walking towards the dark alley were positively
identified as SP2 and the Appellant. Based on the evidence of
SP4, the woman and man were only suspected to be SP2 and the
15
Appellant. Despite that, the Magistrate had made a finding of

fact that the alleged incident did happen at approximately at
11PM based on the evidence of SP2 and the timestamp of the
snapshot of the CCTV recording that showed a woman and man
walking together towards the parking area at approximately 11
PM. At paragraph 89 of her Grounds of Judgment the Magistrate
found that the CCTV recording clearly showed that SP2
followed the Accused to the parking area (‘Rakaman CCTV yang
dimainkan menunjukkan dengan jelas bahawa SP2 ada mengikut
OKT ke tempat parking 1 ). In this Court’s view that finding of
fact was not supported by evidence as there was no
identification of the woman and the man by SP2, SP3 and SP4.
Since the identity of the woman and the man was not confirmed,
the CCTV recording could not be accepted as a corroborative
evidence of the fact that SP2 and the Appellant was seeking
towards the parking area.
[31] At the hearing of this Appeal this Court had requested the CCTV
recording to be played. Towards the end of the recording this
Court observed the image of a woman in the recording appeared
to be wiping her eyes as if she was wiping tears. This Court
made that observation known to both parties and made a
preliminary comment that if that woman was SP2 and she did
wipe tears from her eyes then that would be consistent with her
evidence that she cried after she fell seated on the floor of the
Scene. However, this Court found that this part of the CCTV
recording was not referred to SP2 for an explanation at the trial
since the CCTV recording was not shown to SP2. Nonetheless
this Court directed parties to submit further written submissions
on whether this Court can make its own finding based on the
image that it had observed.
16
[32] The Respondent argued that applying the principles in China

Airlines Ltd v. Maltran Air Corp Sdn Bhd & Another Appeal
[1996] 3 CLJ 163 / [1996] 2 MLJ 517 and Abdul Rahim Abdul
Hamid & Ors v. Perdana Merchant Bankers Bhd & Ors [2006] 3
CLJ 1 [2006] 5 MLJ 1 this Court is not estopped from making a
finding of fact based upon inferences from other facts. Thus,
this Court could make a finding of fact based on SP2’s evidence
supported by the evidence of SP1 who saw SP2 crying, that SP2
was indeed crying as seen in the CCTV recording and therefore
corroborates SP2’s evidence that the alleged incident did
happen. In Abdui Rahim Abdul Hamid (supra), the Federal
Court held:
[18] We have had to reassess the entire facts of this case, as

there was precious little analysis of the evidence by the
intermediate court. We find the approach of the Court of Appeal,
which merely endorsed the findings of the trial judge because
they were findings of fact, slightly discomfiting. We wish to
state that we are well aware of the settled principle that a trial
court is in a more advantageous position to make findings of
fact and assessing the credibility of witnesses, hence generally
as an appellate court we will not interfere with a decision which
is based on such findings of fact unless there is a clear
justification for doing so. Further, a distinction has to be made
between a finding on a specific fact which relies on the
credibility of witnesses and a finding of fact which depends
upon inferences drawn from other facts. In the latter case, an
appellate court will more readily interfere with the trial judge's
findings of fact and form an independent opinion, than in the
case of the former. (See China Airlines Ltd. v. Maltran Air
Corp. Sdn. Bhd. [1996] 3 CLJ 163). Having said the foregoing
we are also of the view that an appellate court cannot in a
17
peremptory fashion say, because it is an assessment of facts of a

trial judge against the oral and written evidence presented
before him, they are not prepared to interfere with such a
finding of fact, without even making any distinction as to the
nature of the findings. It is only after an analysis of the evidence
afresh, and on a review of the law can such a finding be made by
an appellate court. Without this approach, the endorsement of
the appellate court, deserves little or no weight at all.
[33] In counter argument, Learned Counsel for the Appellant

submitted that since the CCTV recording was not shown to SP2
there is no evidence from her identifying the woman as herself
and as to what she was actually doing. Whilst it appeared as if
she was wiping tears yet that appearance remains speculative
and this Court cannot make a speculative finding merely based
on its own perception of what the circumstances could have
been. The appearance of wiping tears is not certain and is open
to interpretation of other possibilities that needs to be excluded.
Furthermore, a finding by this Court that the CCTV recording
showed that SP2 was in fact crying would prejudice the
Appellant as he would be deprived of the opportunity of
challenging SP2 on the matter.
[34] After considering both arguments this Court finds that it is

unsafe for this Court to make its own conclusions as to what the
woman in the CCTV recording may have been doing more so
when the CCTV recording was not shown to SP2. There is no
explanation from SP2 on what she may have or not have done
and for that reason this Court cannot assume her position in
providing an explanation. But more fundamentally, there is no
affirmative evidence from SP2 and SP4 that the woman in the
CCTV is in fact her. Furthermore, as argued by Learned Counsel
for the Appellant the image is open to more than one inference
18
and any inference that is favorable to the Appellant must be

given to him. Thus, this Court cannot make a finding of fact
upon inferences from other facts that are not proven. For those
reasons this Court cannot agree with the Respondent that the
image in the CCTV corroborates SP2’s and SPTs evidence that
SP2 had cried due to the alleged incident and neither can this
Court infer from the evidence of SP2 and SP1 that the image
must be that of SP2 wiping tears from her eyes.
White paint stains
[35] Could then the white paint stains found on the clothes SP2 wore
on the night of the incident (exhibits P8A, P9A and P10A) prove
that the alleged incident did happen? In analyzing this aspect of
the Appeal, it would be pertinent at this juncture to observe the
following based on the Notes of Proceedings: (a) There was no
identification of SP2 by SP1 during his examination in-chief; (b)
there was no identification of the clothes exhibits P8A, P9A &
P10A by SP1 and SP2; and (c) photographs of SP2 in those
clothes and taken by the police after she made the First Report
(exhibits P4(a) to P4(d)) were not shown to SP1 and SP2.
[36] It was the finding of the Magistrate at paragraph 82 of her

Grounds of Judgment that based on the evidence of SP2 the
white paint stains were found on SP2’s clothes after she fell to
the ground and when she then stood up again. It was the
argument of the Respondent that the white paint stains on the
left side of SP2’s clothes were consistent with the evidence of
SP2 that she stood at the corner of the access way of the Scene
where the incident allegedly happened and her description was
consistent with the photograph of the Scene in exhibits P1(A) to
19
P1 (B). SP4 had also testified that his investigation showed that
the wall of access way at the Scene was painted white.
[37] After carefully reading the testimony of SP2, this Court could
not find any explanation offered by SP2 on how the white paint
stains found its way onto her clothes as stated by the Magistrate.
It was not part of SP2's evidence. In this respect the finding the
Magistrate made at paragraph 86 of her Grounds of Judgment
was without basis and amounted to a serious error.
[38] Her error was further compounded by her failure to consider the
evidence of SP4 who agreed with the counsel for the Appellant
in cross-examination that the white paint stains could have come
from any other source. More importantly, the Magistrate failed
to direct her mind to SP4’s evidence that the white paint stain on
the clothes had no connection with the alleged incident. This a
crucial finding and opinion made by SP4 which was not
challenged or clarified by the Prosecution in re-examination.
With reference to the cases of Ho Tze Kean v. PP (supra) and
John Nyumbei v. PP [2007] 2 CLJ 509 / [2007] 7 MLJ 206 the
Prosecution is therefore bound by this evidence.
[39] Corollary to the above, the Magistrate also failed to consider

that whilst SP1 had given evidence that he saw the white stains
on the clothes of SP2, he did not identify SP2 in court and
neither was he referred to the photographs exhibits P4(a) to
P4(d). Whilst SP3 may have given evidence on the white paint
stains that she had observed on SP2’s clothes and SP4 who also
found white paint stains on the clothes when he received them
from SP3, those evidence cannot, in absence of the primary
evidence by SP2 on the matter, be corroborative evidence of that
fact that the white paint stains came from the wall at the Scene.
In this Court’s view the absence of affirmative identification by
20
SP1 of SP2 and the clothes, the non-identification of the clothes

by SP2 and the absence of her explanation on how the white
paint stains found its way onto the clothes left a serious gap in
the Prosecution’s case. As stated in Ah Mee v. PP [1967] 1 MLJ
220.
With respect, corroboration in the legal sense connotes some

independent evidence of some material fact which implicates the
accused person and tends to confirm that he is guilty of the
offence; see R v. Clynes [1960] 44 Cr. App. R 158, 161.
Consistency is not such corroboration...
[40] Therefore, it is this Court’s view the white paint stains as found
on the clothes of SP2 are not conclusive proof that the paint
came from the Scene. SP4 admitted that whilst he found white
paint on the wall at the Scene, yet there was no forensic
investigation of the white paint stains on the clothes. There was
no scientific evidence to link the white paint stains on clothes to
the white paint on the wall at the Scene. SP4’s evidence that the
white paint stains could have come from any source and more
damning that the white paint stains had no connection to the
alleged incident, blew the issue wide open. The Magistrate had
failed to consider these evidence and thereby her finding that the
white paint stains constituted evidence of the truth of the alleged
incident is plainly flawed.
SP2’s conduct during the alleged incident
[41] Next to be considered is the conduct of SP2 when the incident

allegedly took place. Learned Counsel for the Appellant
submitted that SP2 had opportunity to scream and escape but
failed to do so. This raised the doubt whether the incident as
alleged by SP2 did happen. The Respondent on the other hand
21
argued that as testified by SP2 she did not shout as they were no
other people within the area and as also claimed by SP2 the
Appellant was much bigger than her and therefore she could not
have escaped. At paragraphs 80 and 81 of her Grounds of
Judgment the Magistrate found that SP2 did not have
opportunity to shout as the alleged incident had happened in a
very short time span of between 3 to 5 minutes, she was being
kissed on the mouth and she had her back against the wall of the
Scene.
[42] In relation to this issue, SP2 testified that she had attempted to
push the Appellant away with her hands when the Appellant
kissed her and fondled her breast. When the Appellant inserted
his hand into her trousers she was surprised and fell seated on
the floor. In both the First Report and Second Report she said
she could not escape because the Appellant was big man.
[43] Looking at the First Report, Second Report and SP2’s oral
testimony it is clear to this Court that nowhere had she alleged
that the Appellant had warned her to keep silent and used some
measure of force or intimidation to force her to remain so.
Neither did SP2 describe any act by the Appellant in pushing her
against the wall, pinning her down, pressing his body against
hers or physically restrained her in any way. In fact, SP2 had
agreed in her cross-examination that she was not forced to sit
down. In the First Report SP2 alleged that the Appellant
embraced her from the front and then kissing her, whilst in the
Second Report and her oral testimony she stated that the
Appellant pulled her hand and kissed her. There was clearly no
allegation of intimidation or threat by the Appellant to force her
to keep silent.
22
[44] Whilst the Magistrate concluded that SP2 could not scream as
she was being kissed, the evidence however does not show that
SP2 was being continually kissed from the beginning till the end
of the alleged incident. There was the time when SP2 fell seated
on the floor of the access way. Was the Appellant still kissing
her then? Then there was the time when the Appellant had
allegedly loosen his pants, took his penis out and asked SP2 to
perform oral sex or masturbate him. Was the Appellant kissing
SP2 continually at the same time? In fact, from the evidence of
SP2 in examination in-chief (at page 17 of the Notes of
Proceedings, Volume 2 of the Record of Appeal), she stated that
when the Appellant asked her to perform oral sex or
alternatively masturbate him she said she did not want to
('selepas okt suruh saya hisap kemaluan saya cakap tak nak’).
That shows she had the opportunity to scream. Then there was
the time when the Appellant was said to have lifted her and
tidied her up. Was the Appellant also kissing her continually at
the same time? Taking those facts together, it is clear that the
Magistrate's conclusion that SP2 could not scream because she
was being kissed for the entire period of the alleged incident
cannot be logical and is purely conjecture. In fact the SP2 stated
in her examination in-chief that she did not do anything after the
Appellant allegedly kissed her and masturbated (‘Saya tak buat
apa-apa, dia terns mencium dan guna tangan sendiri bermain
dengan alat sulitnya sendiri*) (at page 17 of the Notes of
Proceedings, Volume 2 of the Record of Appeal). This evidence
was not considered by the Magistrate.
[45] Thus, in this Court's view, there was opportunity for SP2 to
scream but she chose not to do so. Her explanation during her
re- examination that she did not scream simply because there
was no one around was not convincing. It was clear that the
23
location of the Scene was close to car parks and based on the
CCTV recording, it was evident that at the material time there
many cars in the area and there were movements of other
vehicles and people.
[46] On the issue of SP2’s inability to escape, this Courts finds that
the Magistrate had failed to consider SP2’s answer in her cross-
examination where she admitted that she could have run away
when the Appellant was masturbating (at page 60 of the Notes
Proceedings, Volume 2 of the Record of Appeal). This evidence
was not clarified by the Prosecution in her re-examination.
[47] Thus, in absence of any evidence that SP2 was intimidated,

threatened or physically restrained it is left unsatisfactorily
answered as to why apart from just trying to push the Appellant
away with her hands SP2 did not scream and put up any form of
greater resistance to fight off the Appellant. If SP2 had the
presence of mind to push the Appellant and to say no to the
request to perform oral sex as she claimed, then she must have
had the presence of mind to attempt to scream and escape. That
was not done by SP2 and that fact was not considered by the
Magistrate.
Unexplained time lapse
[48] There was also a failure by the Magistrate to critically examine

the time span as shown by the CCTV recording from when the
woman and the man suspected to be SP2 and the Appellant was
seen entering the dark alley at approximately 10.41PM until SP2
reappeared to return to the Club at 10.58PM. Since the
Magistrate accepted the CCTV as being evidence of SP2 and the
Appellant walking towards the parking area, then she should
have drawn her attention to the fact that SP2 appeared only 17
24
minutes later and not soon after the 3 to 5 minutes the alleged
incident happened as found by the Magistrate. Deducting the 3
to 5 minutes that the Magistrate found to be the period the
alleged incident happened there was still a period of 12 minutes
that was unaccounted and not explained by SP2 or the
Prosecution. This raises the inference that the alleged incident
may have taken some 17 minutes which would have presented
ample opportunity to SP2 to scream or escape. For that reason,
this Court does not agree with the Respondent and the
Magistrate’s conclusion at paragraph 89 of her Grounds of
Judgment that the period of 17 minutes means there was a time
opportunity for the Appellant to commit the crime. On the flip
side of the coin, that 17 minutes could also mean that there
could have been a consensual moment between SP2 and the
Appellant. As held in Aziz bin Muhammad Din v. PP [1965] 5
MLJ 473 / [1997] 1 CLJ 523:
From the evidence adduced it is clear that SP6 allowed the

accused to spend the night in his house on 31 January 1995. He
saw SP2 there on that night and the following morning. The
question for deliberation is whether this evidence is sufficient to
corroborate the testimony of SP2 that the accused raped her in
SP6's house. Although it constitutes evidence of opportunity it is
settled law that evidence of mere opportunity, without more,
cannot amount to corroboration.
...The evidence of opportunity should be supplemented by proof

of circumstances of such a nature as to lead to the inference that
it was probable that advantage would be taken of the
opportunity...
[49] Even if the alleged incident did occur in that 3 to 5 minutes,

where did the SP2 go after that until she reappeared 12 minutes
25
later? An explanation is necessary to show whether or not what

SP2 did in that 12 minutes was consistent with someone who
had just experienced an outrage of her modesty. Since the CCTV
recording was not shown to SP2 that 12 minutes was not
explained by SP2 and this had caused a gap in the Prosecution’s
case against the Appellant. The conduct of a victim are relevant
facts to be considered in sex related offences as demonstrated in
the case of PP v. Rungit Singh Jaswant Singh [1999] 3 CLJ 301 /
[1998] MLJU 606 and this was not evaluated by the Magistrate.
[50] Further, it would be quite incredible that the Appellant had the
audacity and brazenness to commit the alleged acts in a public
space that risked being witnessed by others or being heard by
any scream for help by SP2. It was evident from the CCTV
recording that at the material time there were many cars still
parked near the Scene and members of the public moving about.
Although the Scene may have been located in a dark alley, it
was still an open space. The Appellant risked not only being
caught kissing SP2 but also with pants down and penis exposed.
The duty of the trial court was not only to accept the evidence as
they were presented but also must critically evaluate them on the
probability of such act being committed in the given
circumstances. That evaluation was missing in the Magistrates’
findings.
Inconsistencies
[51] In further considering whether there was criminal force and the
outrage of SP2’s modesty, this Court now moves on to evaluate
some of the inconsistencies in the evidence of SP2 as raised by
Learned Counsel for the Appellant. Learned Counsel for the
Appellant submitted that these consistencies prove that SP2’s
26
evidence was unreliable and should not have been accepted by

the trial court. There was a failure by the Magistrate to
appreciate these inconsistencies as material and thereby raising
doubt’s in the Prosecution’s case.
[52] Firstly, there was inconsistency with regards to whether she was
standing or seated when the Appellant had allegedly loosen his
pants and took out his penis. In her examination In-chief SP2
testified that after she fell to the floor the Appellant then picked
her up, kissed her and then loosen his pants to expose his penis.
In contrast, in her cross- examination SP2 agreed with Learned
Counsel for Appellant that the Appellant had loosen his pants
when she was seated on the floor. This inconsistency is relevant
to the issue whether SP2 had the opportunity to escape. In fact
SP2 agreed with Learned Counsel for the Appellant that she had
the opportunity to escape when she was seated and the Appellant
was masturbating (at page 59 Notes of Proceedings, Volume 2 of
the Record of Appeal). This contradicted her earlier statement in
examination in-chief that after she fell seated she cried and
considered to save herself but could not do so because the
Appellant had picked her up after which he kissed her and
loosen his pants (at page 17 of the Notes of Proceedings,
Volume 2 of the Record of Appeal).
[53] Then there is the question when SP2 had actually informed SP3
regarding the presence of seminal fluid on her trousers as stated
in the Second Report. In her cross-examination SP2 initially
testified that she had informed SP3 about the seminal fluid on
the night of the alleged incident. She then changed her answer to
state that she did not inform the police on the night of the
alleged incident and the upon further examination she changed
her answer again by stating that she could not remember when
she had actually informed the police.
27
[54] In this Court’s view the evidence regarding the presence of

seminal fluid on SP2’s trousers is a material fact which if
proven would have served as the link between the Appellant and
the alleged act of masturbating in the presence of the Appellant.
SP2’s uncertainty as to when, if she did, inform SP3 regarding
the seminal fluid on her trousers raises a doubt as the reliability
of her evidence on this issue, more so when she had included
that information in the Second Report.
[55] Thirdly, when SP2 was specifically challenged in cross-

examination SP2 had agreed that the Appellant did not loosen
his pants and take out his penis (at page 70 of Notes of
Proceedings, Volume 2 of the Record of Appeal). SP2 then
changed her answer during re- examination by explaining that
she had misheard the question and thought the question posed by
counsel for the Appellant was actually that the Appellant did
loosen his pants and take out his penis. This Court finds that
SP2’s explanation unconvincing as there was no confusion in
her answers to the earlier series of questions by counsel for the
Appellant on what the Appellant did not do to SP2. Why then
the confusion by that particular question? It must be noted that
SP2 had the assistance of an interpreter to interpret the
questions for her and there was no complaint that she was
confused by the interpretation of the question by the interpreter.
This response was not evaluated by the Magistrate and in this
Court’s view the failure amounts to a serious error.
[56] Fourthly, SP2 had admitted in cross-examination that the

Appellant did not use criminal force on her (at page 66 of Notes
of Proceedings, Volume 2 of the Record of Appeal). Later, SP2
changed her answer in re-examination when she testified that
she misunderstood the interpretation given by the interpreter.
SP2 testified that the interpreter had stated that no criminal
28
force meant that there was no violence such as punching to

which SP2 agreed. The Magistrate had accepted this explanation
as reasonable as criminal force defined under section 350 of the
Penal Code did not necessarily include physical force. Therefore
SP2’s admission was not inaccurate under the circumstances.
[57] However, upon closer scrutiny, it would appear that Learned

Counsel for the Appellant had used the word “paksaari’ (force)
and “kekerasan jenayah” (criminal force) in no less than 4
questions before that particular question was asked (at pages 56,
57, 62 and 64 of Notes of Proceedings, Volume 2 of Record of
Appeal) and there did not appear to be any misapprehension on
SP2’s part on what those words meant and their context. Thus, if
they were not misunderstood before why would SP2 then claim
to have misunderstood the meaning of the word when asked for
the fifth time? Thus, this Court finds that SP2’s blame on the
interpretation is not a plausible explanation.
[58] Then there is the issue of whether the differences between the
First Report and Second Report constituted material
inconsistencies. The Magistrate had found that the
inconsistencies between these two reports were not material and
acceptable given the frame of mind of SP2 after the alleged
incident occurred. The Magistrate found that as witnessed by
SP1, SP2 was distraught and therefore her recollection of events
may have been incomplete when the First Report was made.
Thus, the Second Report was made to supplement some of the
missing information. In any event, the Magistrate held that the
police report need not contain all details of the alleged incident.
[59] Whilst the Magistrate was correct in her views that the police
report need not contain all information, she was still under duty
to evaluate any inconsistencies that were raised by the Defence
29
in the cross- examination of SP2 as permitted under section 145

of the Evidence Act 1950 (see Lee Kwai Heong v. PP [2006] 1
CLJ 1043 / [2006] 2 MLJ 528).
[60] In this Court’s view the inconsistencies raised by the Appellant

at the trial were far from being immaterial. SP2 had admitted in
cross- examination that there were marked differences between
the two reports with regards to: (a) where the alleged incident
took place; (b) the discharge of seminal fluid onto SP2’s
trousers; and (c) how the Appellant had seized the moment
towards SP2. In her cross- examination SP2 admitted that
additional information in the Second Report regarding the act of
the Appellant pulling her hand was intended to show the use of
force as opposed to embracing her from the front as stated in the
First Report. She also admitted that her evidence about she and
the Appellant being in the access way with a closed door was to
show her inability to escape from the Appellant when in contrast
the First Report stated that the alleged incident occurred at the
parking lot. In this Court’s view these differences were material
as it went to the crux of the accusation against the Appellant and
the extensive cross- examination of SP2 on these issues and her
motive were not evaluated by the Magistrate.
Conduct of SP2
[61] In relation to the conduct of SP2, this Court finds that there was
no evaluation by the Magistrate on the conduct of SP2 with
regards to SP2's refusal to subject herself to medical
examination and her reluctance to assist SP4 in his
investigations despite repeated requests. This Court finds that
these conducts are not consistent with someone who had just
suffered an outrage of her modesty more so when there were
30
claims of discharge of seminal fluid on her leg that could have

proven her accusation of the criminal act against the perpetrator.
SP2 was not asked to explain in her re-examination on why she
did not subject herself to medical examination notwithstanding
that there was no evidence of physical force used upon her. As
stated earlier, the conduct of a victim are relevant facts to be
considered in sex related offences. Unfortunately the Magistrate
touched on the issue of SP2’s refusal to subject herself to
medical examination only at the end of the defence case when
she should have directed her mind to it at the end of the
Prosecution’s case.
Incomplete investigation bv the police
[62] This Court further finds that there was incomplete investigation
by the police into SP2’s complaint. The evidence of SP3 and
SP4 showed that there was no forensic analysis done on the
trousers to determine whether there were traces of the
Appellant’s seminal fluid as claimed by SP2. Part of that blame
fell on SP2 who only handed the trousers 4 days after the
Second Report that was on the 15.7.2017 and some 8 days after
the alleged incident. SP4 stated in his evidence that no forensic
and DNA analysis was done because of the delay in receiving
the trousers and also the delay by SP2 in informing the police
about the seminal fluid. Because of SP2’s reluctance to
cooperate with SP4 for him to take further statement from SP2
regarding the seminal fluid and the trousers SP4 was hampered
in his investigation. This effectively removed any link between
the Appellant and the seminal said on the trousers.
[63] In addition to that SP4 admitted that whilst he investigated the

Scene and found the wall painted white, he did not do any
31
forensic analysis to determine whether the white paint stains on

SP2’s clothes had come from the same white paint on the wall of
the Scene. The absence of SP2’s own evidence on the cause of
the white paint stains on her clothes and the failure of SP4 to
prove that the white paint stains on the clothes came from the
wall of the Scene left the issue of the source of the white paint
stains on SP2’s clothes undetermined. In any event, SP4 had
testified that there was no connection between the white paint
stains on the clothes and the white paint on the wall of the Scene
and that effectively negated any link between the white paint
stains on the clothes and the Scene.
[64] As decided in Rahmani Ali Mohamad v. PP [2014] 7 CLJ

405/[2014] 6 MLJ 525 an accused should not be penalized by
any lack of ingenuity, negligence or inadvertence which left
material gaps and many stones unturned. The incomplete
investigation in this trial had left unanswered whether there
were seminal fluids on SP2’s trousers and even if there were,
whether it did come from the Appellant. The Appellant was
deprived of any investigation into the matter that could have
exculpated him from the Charge and this evidence was not
considered by the Magistrate.
Conclusion
[65] Having considered all the above issues, this Court holds the
view that the Magistrate had lost sight of her duty to examine all
evidence and probabilities of the case. As held by Raja Azlan
Shah J (as he then was) in Tengku Mahmood v. PP [1974] 1 LNS
176 / [1974] 1 MLJ 110:
.. .a Judge of fact should always test the complainant's evidence

against the totality of his evidence and the probabilities of the
32
case. Failure to do so does amount, in my view, to a

misdirection, and if it can be demonstrated that the trial Judge
had failed to do that, his conclusion as to credibility, cannot, in
justice, be regarded as impeachable, much less unimpeachable.
It would therefore be not just for an appellate Court to regard
itself as compelled to regard as conclusive his finding on the
issue of credibility. The whole matter can be considered afresh.
Further, the graver the issue involved, and particularly when an
allegation of corruption is in the air, the greater is the necessity
for the appellate Court to enquire whether the conclusion as to
credibility is one that must under the law be regarded as, for all
practical purposes, irrefragable.
[66] In Lee Kwai Heong v. PP (supra) Richard Malanjum JCA (as he

then was) speaking for the Federal Court held:
[16] in order to be convinced that the decision of a trial judge is

wrong an appellate court has a duty 'to check by critical
examination of the whole of the evidence the trial judge's
conclusion as to the truthfulness of that witness'. Some of the
matters to consider are:
i. whether the witness's story is inherently 'consistent with

the facts and circumstances alleged therein' and which may gain
weight by other factors;
ii. 'corroboration by other witnesses will strengthen it;
iii. credible extrinsic circumstantial evidence will do the

same; and
iv. lastly the demeanour and tone in which the witness gives
evidence will add to fortify (if favourable) the inherent
probability of the story but the last named is the least weighty
33
element in the credibility of a story'. (See: Abraham Ho Ah Loke

v. William Manson-Hing [1948] 1 LNS 2; [1949] MLJ 37).
On the methodology of assessing a witness' evidence we can do

no better than to cite the following passage from Sarkar on
Evidence (15th ed) p. 99:
The Act does not purport to lay down any rule as to the
weight to be attached to the evidence when admitted, nor
is any such rule possible for the proper appreciation of
evidence is a matter of experience, common sense and
knowledge of human affairs. 'For weighing evidence and
drawing inferences from it, there can be no canon. Each
case presents its own peculiarities, and common sense and
shrewdness must be brought to bear upon the facts elicited
in every case which a judge of facts in this country
discharging the functions of a jury in England, has to
weigh and decide' {per Birch J in R v. Madhub 21 WR Cr
13, 19; Mahendrapal v. State AIR [1955] A 238.
[67] Based upon those principles this Court finds that there are issues
regarding the reliability of SP2’s evidence and probabilities of
the case that were not sufficiently considered by the Magistrate.
Had the Magistrate properly directed her judicial mind to those
issues as discussed above, she would have found that there were
doubts raised by the Appellant as to whether the alleged incident
did happen. To the contrary, the Magistrate accepted SP2’s
version of the events as the whole truth to the extent that the
Magistrate found that SP2’s version of the alleged incident was
not challenged by the Appellant (paragraph 53 of her Grounds of
Judgment).
[68] A fair consideration of the cross-examination of SP2 at the trial

amply showed that she was subjected to extensive challenge on a
34
broad range of issues including the police reports, motive,

location of the alleged incident, her conduct before, during and
after the alleged incident and her version of how the incident
happened. At the conclusion of the cross-examination as found
at page 70 and 71 of the Notes of Proceedings specific
challenges were made by the Appellant’s counsel to SP2 on the
alleged conduct of the Appellant. Hence, in this Court’s view
the Magistrate’s finding that SP2’s evidence was not challenged
was a serious misdirection that prejudiced the Appellant. That in
itself is sufficient basis to overturn the conviction.
[69] A proper and fair evaluation of the evidence would have alerted
the Magistrate that there was no strong evidence corroborating
the evidence of SP2. Corroboration is by practice and prudence
required in proving sexual related offences. As held by the
Federal Court in Dato* Seri Anwar Ibrahim v. PP & Another
Appeal [2015] 2 CLJ 145 /[2015] 2 MLJ 293:
[73] The law on corroboration of the evidence of a SP2 in a

sexual offence is settled in our jurisdiction. In this regard, the
Court of Appeal had correctly addressed the law by referring to
various authorities both here and in other Commonwealth
jurisdictions. As a matter of practice and prudence, not of law,
corroboration is normally required in a sexual offence...
[70] The First Report and Second Reports could not amount to
substantive corroboration of SP2’s evidence although they were
facts relevant to show consistency in SP2’s conduct.
Notwithstanding that by operation of section 157 of the
Evidence Act 1950, the First Report and Second Report may
corroborate the oral evidence of SP2, that corroboration does not
hold high probative value. In Mohd Yusof Rahmat v. PP [2009]
3 MLJU 33 the Court of Appeal held:
35
The effect of this section on the established common law notion

that a person cannot corroborate himself was explained by Raja
Azlan Shah FJ (as His Royal Highness then was) in
Karthiyayani & Anor v. Lee Leong Sin [1975] 1 MLJ 119:
“It is settled law that a person cannot corroborate himself

but it would appear that s. 157 of the Evidence Act enables
a person to corroborate his testimony by his previous
statement The section adopts a contrary rule of English
jurisprudence by enacting that a former statement of a
witness is admissible to corroborate him, if the former
statement is consistent with the evidence given by him in
court. The rule is based on the assumption that consistency
of utterance is a ground for belief in the witness's
truthfulness, just as inconsistency is a ground for
disbelieving him”.
The Federal Court then added that this “constitutes a very weak
type of corroborative evidence as it tends to defeat the object of
the rule that a person cannot corroborate himself.
When the High Court confronted this same issue in PP v.

Paneerselvan & ors [1991] 1 MLJ 106, Edgar Joseph Jr J (as he
then was) ruled that such a previous statement made by the
witness is “technically” admissible but excluded it as
corroboration on ground that its probative value was outweighed
by its prejudicial effect”.
Though such former statements by the SP2 in this case can be

considered as corroborative evidence it is our judgment that the
probative value assigned to them is far less than those of an
independent nature.
36
[71] As held also by the Federal Court in Francis Antonysamy vPP

[2005] 2 CLJ 481 / [2005] 3 MLJ 389.
[17] …Corroborative evidence is only admissible to support

testimony that has already been given. It is not admissible to
supplement such testimony. In Yap Ee Kong & Anor v. Public
Prosecutor [1981] 1 MLJ 144 this court adopted Director or
Public Prosecutions v. Hester [1973] AC 296 where it was held
that the purpose of corroboration is not to give validity or
credence to evidence which is deficient or suspect or incredible
but only to confirm and support that which as evidence is
sufficient and satisfactory and credible. It was further held that
if the evidence to be corroborated is found to be uninspiring and
unacceptable then corroboration would be futile and
unnecessary.
[72] There was also a failure by the Prosecution to clarify SP2’s

answers in cross-examination on issues that are material to the
case and there was no evaluation by the Magistrate on that
failure. Those failures include: (a) failing to ask SP2 on the
differences between the First Report and Second Report and her
oral evidence regarding where the alleged incident happened; (b)
failing to ask SP2 to explain the issue of motive regarding her
statement in the Second Report that the Appellant had pulled her
hand as opposed to the First Report that the Appellant had
embrace her from the front was made to show the use of force;
(c) failing to ask SP2 to explain her agreement to the suggestion
of counsel for the Appellant that her intention in stating for the
first time at the trial that she was pulled into the access way that
had a closed door was to show her inability to escape when in
her First Report and Second Report there was no such
description; (d) failing to seek SP2’s clarification on the
inconsistency of her answer on whether she was seated or
37
standing when the Appellant was allegedly masturbating; (e)

failing to elicit SP2’s explanation as to why she agreed that she
could have escaped from the Appellant when he was
masturbating but did not; (f) explanation regarding her failure to
hand over the trousers that allegedly was stained by the
Appellant’s seminal fluid to SP3 soonest after the Second
Report was made but instead only 8 days later; and (g) an
explanation on her reluctance to subject herself to medical
examination although advised by SP3. In this Court’s view the
Prosecution’s failure to seek those clarifications or explanations
weighed heavily against the credibility of SP2’s evidence. As
held by Augustine Paul J (as he then was) in Nasrul Annuar Abd
Samad v. PP [2005] 1 CLJ 193:
[9] The uncertainties in the answers given by her were not

subjected to a proper re-examination. The object of this
examination is to give an opportunity to a witness to explain any
part of his evidence given in cross-examination which is capable
of being construed unfavourably (see Law of Evidence by
Woodroffe & Amir Ali 16th edn. Vol 4 p 3623). In view of the
vague evidence of PW3 as shown in her cross- examination
which has not been effectively explained in her re-examination
it is unsafe to rely on her evidence...
[73] In the end, this Court finds that the decision of the Magistrate in
finding that the Prosecution had successfully proved a prima
facie case as per the Charge was seriously flawed in many
aspects. There was no maximum evaluation of all the evidence
as required by law (see the oft quoted decision of the Federal
Court in Magendran Mohan v. PP [2011] 1 CLJ 805 FC / [2011]
6 MLJ 1). In this Court’s view the Appellant had raised
reasonable doubts in the Prosecution’s case and for that reason
he should not have been ordered to enter his defence.
38
DECISION
[74] Having (a) heard all arguments by the Appellant and the
Respondent; (b) evaluated the evidence and the Grounds of
Judgment by the Magistrate, the Appeal is hereby allowed. The
decision of the Magistrate on both conviction and sentence is
hereby set aside.
(MOHD RADZI ABDUL HAMID)

Judicial Commissioner
High Court Georgetown Penang
Dated: 26 OCTOBER 2021
COUNSEL:
For the appellant - Gnasegaran Egamparan, Rethinakumar Subramaniam,

Audrey Wee, Arvend Rajandran & Theebajothi Jayaram; M/s E Gnasegaran &
Company
Advocates and Solicitors
No. 83, First Floor,
Bishop Street,
10200 Pulau Pinang
For the respondant - DPP Yazid Mustaqim Roslan; State Legal Advisor's Office
Penang
Georgetown, Pulau Pinang.
Case(s) referred to:
Davendar Singh Sher Singh v. PP [2012] 1 LNS 261 /[2012] MLJU 321
Ho Tze Kean v. PP [2018] 3 CLJ 71 / [2018] 2 MLJ 721
39
Goh Ming Han v. PP [2015] 3 MLJ 781 /[2015] 3 CLJ 17
China Airlines Ltd v. Maltran Air Corp Sdn Bhd & Another Appeal [1996] 3
CLJ 163 / [1996] 2 MLJ 517
Abdul Rahim Abdul Hamid & Ors v. Perdana Merchant Bankers Bhd & Ors
[2006] 3 CLJ 1 [2006] 5 MLJ 1
John Nyumbei v. PP [2007] 2 CLJ 509 / [2007] 7 MLJ 206
Ah Mee v. PP [1967] 1 MLJ 220
R v. Clynes [1960] 44 Cr. App. R 158, 161
Aziz bin Muhammad Din v. PP [1965] 5 MLJ 473 / [1997] 1 CLJ 523
PP v. Rungit Singh Jaswant Singh [1999] 3 CLJ 301 / [1998] MLJU 606
Lee Kwai Heong v. PP [2006] 1 CLJ 1043 / [2006] 2 MLJ 528
Rahmani Ali Mohamad v. PP [2014] 7 CLJ 405/[2014] 6 MLJ 525
Tengku Mahmood v. PP [1974] 1 LNS 176 / [1974] 1 MLJ 110
Dato* Seri Anwar Ibrahim v. PP & Another Appeal [2015] 2 CLJ 145 /[2015]
2 MLJ 293
Mohd Yusof Rahmat v. PP [2009] 3 MLJU 33
Francis Antonysamy v. PP [2005] 2 CLJ 481 / [2005] 3 MLJ 389
Nasrul Annuar Abd Samad v. PP [2005] 1 CLJ 193
Magendran Mohan v. PP 2011] 1 CLJ 805 FC / [2011] 6 MLJ 1
Legislation referred to:
Penal Code, ss. 350, 354
Evidence Act 1950, ss. 145, 157
40

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[2021] 1 LNS 1693 Legal Network Series

IN THE HIGH COURT OF MALAYA

PREM ANAND LOGANATHAN … APPELLANT

PUBLIC PROSECUTOR … RESPONDEN

[In the Matter of The Magistrate Court at Georgetown, Penang

Prem Anand Loganathan

MATTER BEFORE THIS COURT

[1] This is an appeal by the Appellant against both conviction and

Code and sentencing him to 3 years imprisonment and a fine of

[2] The charge (herein after referred as “Charge”) before the

“Bahawa kamu pada 6/7/2017 jam lebih kurang 11.30 malam di

[3] A total of 4 witness were called for the Prosecution including

[4] SP2 had worked as a waitress at a club known as PSCC (‘Club’).

[10] SP1 then accompanied SP2 to lodge a police report dated

[11] There are no independent witnesses who saw the incident as

[12] The defence case as presented through the Appellant (SD1) is

FINDINGS BY THE TRIAL COURT

At the end of Prosecution's case

[15] in arriving at her decision the Magistrate found, inter-alia, that

differences between the First Report and Second Report as not

[17] Based on those considerations, the Magistrate was satisfied that

At the end of Defence Case

[19] The Appellant’s Grounds of Appeal against both conviction and

(a) The Magistrate erred in law and fact in failing to consider

(c) The Magistrate erred in law and fact in failing to evaluate

(d) The Magistrate erred in law and fact in accepting the

(e) The Magistrate erred in law and fact in making certain

(f) The Magistrate erred in law and fact in failing to consider

(g) The Magistrate erred in law and fact in categorizing the

HEARING OF THE APPEAL

[20] It is the duty of this Court hearing this Appeal to determine if

[9] an appellate court is generally very reluctant to disturb a finding

“A judge who is required to adjudicate upon a dispute must

[21] At the hearing of this Appeal, Learned Counsel for the

[22] The Respondent submitted that based on the consideration of the

Analysis of facts and evidence

Regarding location of the alleged incident

She identified the Scene based on the photographs exhibits

[35] We have perused the learned judge’s grounds of judgment

[36] In John a/k Nyumbei v. Public Prosecutor [2007] 7 MLJ

Now, among the general rules that govern judicial

[37] The piece of evidence given by PW8 which supported the

Whilst the Scene could be said to be the place where the

[27] Thus, in this Court’s view SPTs evidence caused 2 sets of

[11] Despite this glaring contradiction in the testimonies of SP2

[12] With due respect to the learned judicial commissioner, he

it picked up by the appellant and handed to SP8? This fact was

[14] The contradiction is serious and cuts deep into the

[28] In this kind of situation the evidence that is favourable to

[29] Further to that, if SP2’s evidence that the alleged incident

Regarding criminal force and outrage of modesty

Appellant. Despite that, the Magistrate had made a finding of

[32] The Respondent argued that applying the principles in China

[18] We have had to reassess the entire facts of this case, as

peremptory fashion say, because it is an assessment of facts of a

[33] In counter argument, Learned Counsel for the Appellant

[34] After considering both arguments this Court finds that it is

and any inference that is favorable to the Appellant must be

White paint stains

[36] It was the finding of the Magistrate at paragraph 82 of her