Pendakwa Raya v RAHNI BIN MAT SUDIN

Case Significance

Illustrates the appellate court's power to reverse an acquittal in a child incest prosecution under section 376B of the Penal Code, that the absence of a virility test is not fatal where other evidence shows the accused capable of intercourse, and that digital evidence is not to be discounted merely for post-seizure metadata dates.

This High Court decision at Taiping concerns a prosecution appeal against the acquittal of the accused on a charge under seksyen 376B Kanun Keseksaan (section 376B of the Penal Code) — incest. This charge, one of three heard together against the same accused, alleged an act of incest on 22 July 2019, the complainant in all three charges being the same girl, aged 13 at the time. The accused had claimed trial, and ten witnesses were called for the prosecution. At the close of the prosecution case the Sessions Court found a prima facie case and called for a defence, but at the end of the defence it acquitted the accused on all three charges, holding that the defence had raised a reasonable doubt. The prosecution appealed to the High Court, which heard the three appeals together because they arose from the same facts, complainant and evidence.

A central issue was whether a virility or potency test of the accused was necessary and, if none had been carried out, whether its absence undermined the prosecution case where there was other evidence that the accused was capable of sexual intercourse. The High Court also examined the Sessions Court's treatment of pornographic images and videos recovered from the accused's mobile telephone. The Sessions Court had discounted that material because some files bore modification dates after the phone was seized; the High Court held that reasoning to be wrong, since many other images were dated before the seizure, and any post-seizure dates could have been explained scientifically had the analysing officer been asked.

The High Court set aside the acquittal, found the accused guilty and convicted him on all three charges, sentencing him to 10 years' imprisonment on each, to run concurrently and taking into account the remand period already served. The judgment illustrates the appellate court's power to reverse an acquittal in a child sexual-offence case and the treatment of supporting digital evidence.