CHAN KOK POH v Pendakwa Raya [Pegawai Pendakwa (PDRM)]

Case Significance

Confirms that the prosecution must prove the age element of an offence under section 14(a) of the Sexual Offences Against Children Act 2017, and that continuing a trial without the accused's legal representation can occasion a miscarriage of justice contrary to Article 5 of the Federal Constitution.

This High Court decision, on appeal from the Sessions Court, concerns a conviction under section 14(a) of the Sexual Offences Against Children Act 2017 and the fair-trial consequences of proceeding without the accused being represented. The appellant had been convicted after trial of physical sexual assault on a child and sentenced to seven years' imprisonment from the date of conviction, together with a period of rehabilitative counselling during imprisonment and police supervision on release. On appeal, the Court addressed two matters. The first was whether the prosecution had established a prima facie case that the victim was a child under the age of eighteen, an element of the offence; the Court held that the burden of proving that element rested on the prosecution and had to be discharged by evidence such as a birth certificate and identity card, even though the point had not been raised by the defence at trial. The second, and decisive, matter was the trial court's exercise of discretion to continue the proceedings on a day when the appellant was without legal representation. The Court held that proceeding in that way was not in accordance with the law and had occasioned a miscarriage of justice, contaminating the fairness of the trial and infringing the appellant's rights guaranteed under Article 5 of the Federal Constitution. Treating other complaints, such as alleged inconsistencies in the witnesses' evidence, as immaterial, the Court found the fair-trial defect fatal to the conviction. It set aside the decision of the Sessions Court and allowed the appeal. The judgment is significant for its treatment of the prosecution's burden to prove the age element in a child-sexual-offence case and the fair-trial consequences of proceeding without representation. The decision is an important reminder that fair-trial safeguards, including representation and the proper proof of every element of an offence, are not mere formalities, and that a conviction obtained in disregard of them cannot stand even in a serious case involving a child complainant.