Pendakwa Raya [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v ZULKIFLY BIN MAMAT

Case Significance

Illustrates the limited scope for appellate interference with an acquittal entered at the close of the prosecution case, and the protection that section 509 of the Penal Code affords to personal privacy and dignity.

This High Court decision at Temerloh concerns an appeal by the prosecution against a magistrate's decision to discharge and acquit the accused, without calling on him to enter a defence, of an offence of insulting the modesty of a young woman. The charge was brought under seksyen 509 Kanun Keseksaan (section 509 of the Penal Code), which protects the dignity and privacy of the individual, and alleged that the accused had, with the intent to insult the modesty of the complainant, intruded upon her privacy by watching her while she was bathing through a hole in the bathroom wall. The court opened by emphasising the importance of decency and respect in relationships between individuals and the need for the law to guard personal dignity and privacy against those who would exploit a relationship to intrude upon them. The prosecution's evidence at the close of its case was that a complainant witness had seen the accused bending down near the bathroom while the young woman, the complainant, was bathing, and that the bathroom wall had a hole through which she could be seen; the accused denied the allegation. At the close of the prosecution case the magistrate had found that no prima facie case was made out and, in accordance with section 173(f)(ii) of the Criminal Procedure Code, discharged and acquitted the accused without calling for a defence. On appeal the court's task was confined to whether the magistrate's findings disclosed a manifest error or a failure to appreciate the evidence in accordance with legal principle such as to justify appellate intervention. Having reviewed the notes of proceedings and the magistrate's grounds, the court held that the findings were not vitiated by any such error and that there was no basis to disturb them. It affirmed the magistrate's decision to discharge and acquit the accused and dismissed the prosecution's appeal. The judgment is a useful illustration of the limited scope for appellate interference with an acquittal at the close of the prosecution case and of the protection section 509 of the Penal Code affords to personal privacy and dignity.