ONG MUI SIA v Pendakwa Raya

Case Significance

Confirms that a conviction for rape under section 376(1) of the Penal Code will be upheld where the charge is adequate and the prosecution evidence, despite minor contradictions, is safe, and that a sentence within the statutory range assessed on established principles will not be disturbed.

This High Court decision at Alor Setar concerns an appeal against conviction and sentence for rape under section 376(1) of the Penal Code, the offence falling within section 375(g). The appellant had been convicted by the Sessions Court and sentenced to fifteen years' imprisonment from the date of sentence together with five strokes of the cane, and had been ordered to undergo rehabilitative counselling during his detention pursuant to section 26 of the Sexual Offences Against Children Act 2017. On appeal against the whole of that decision, the appellant advanced two principal grounds. The first was that the charge was defective, complaining of the definition section that had been included in the charge and the absence of a precise date for the offence. The second was that there were contradictions in the evidence of the prosecution witnesses — between their testimony and the first information report, and as to how many times the incidents had occurred and where they had taken place. The Court examined the whole of the record of appeal and rejected both grounds, holding that the conviction was safe. On sentence, it referred to Jafa bin Daud for the principle that a sentence according to law must be within the ambit of the punishable section and must also be assessed in accordance with established judicial principles. It found that the Sessions Court judge had properly taken into account the facts of the case, the nature of the offence, the fact that the appellant was a first offender, the public interest and the principle of deterrence in arriving at the sentence, which fell within the range of up to twenty years' imprisonment and caning prescribed by section 376(1). Concluding that the conviction was safe and the sentence appropriate, the Court dismissed the appeal and maintained the sentence. The decision confirms that neither the inclusion of a definition section in a charge nor the absence of a precise date is necessarily fatal, and that minor inconsistencies in the prosecution witnesses' accounts do not render a conviction unsafe where the core of the case is established.