Arshad Bin Masdin v Pendakwa Raya [Pendakwa Raya]

s-09-49-02-2023 Court of Appeal (Mahkamah Rayuan) 20 January 2025 • S-09-49-02/2023 • 32 min read
12 cases cited (0 SG, 12 foreign)

Catchwords

Section 376(2)(a) of the Penal Code [Act 574] read together with section 511 - offence of attempted rape – Issue: Whether the appellant was the person who sexually assaulted the victim - Physical contact between the appellant and the victim's body - Physical contact between the appellant and the victim's brassiere - Physical contact between the appellant and the victim's room window grill - Failure to consider the absence of victim blood on the appellant’s clothing - DNA evidence - failure to consider such material evidence is a miscarriage of justice - serious misdirection that warrants the court to intervene, interfere and reverse the concurrent finding of fact on the identification issue - forensic evidence plays an important role in determining the identity of the culprit - Alibi Defence - alibi evidence need not be corroborated - section 114(g) of the Evidence Act 1950 - the evidence of alibi need only raise a reasonable doubt - Identification Parade - identification parade was not in accordance with Perintah Tetap Ketua Polis Negara - court identification was defective, irregular and improperly held – Issue: Whether information leading to discovery (section 27 of the Evidence Act 1950) is inadmissible - improper admission of exhibit - no evidence of the discovery of the items mentioned in the oral and written statements - conviction is unsafe

Practice Areas

Section 376(2)(a) of the Penal Code Act 574 read together with section 511

Judges (3)

Azhahari Kamal bin Ramli Coram Azmi bin Ariffin Delivered Che Mohd Ruzima bin Ghazali Coram

Counsel (4)

Hamid & Co. Firm Hamid Ismail Counsel Appellant Mohamad Arif Aizuddin Masrom Counsel Prosecution Shahlan Bin Zufri Counsel Appellant

Parties (2)

Pendakwa Raya Respondent Arshad bin Masdin Appellant

Case Significance

Arshad Bin Masdin v Pendakwa Raya [Pendakwa Raya] is a Court of Appeal (Mahkamah Rayuan) decision dated January 20, 2025 (citation: s-09-49-02-2023). <p>The appellant was convicted of attempted rape of a university student at UMS student housing and sentenced to 13 years' imprisonment with 6 strokes of whipping. The Court of Appeal allowed the appeal and set aside the conviction, finding the trial court erred in relying on inadmissible evidence and the DNA evidence of an unknown male found on the victim's bra and room window grill excluded the appellant as the assailant.</p> The panel comprised Azhahari Kamal bin Ramli, Azmi bin Ariffin and Che Mohd Ruzima bin Ghazali, with Azmi bin Ariffin delivering the judgment. Counsel appearing: Hamid Ismail (counsel for appellant), Mohamad Arif Aizuddin Masrom (prosecution counsel), Shahlan Bin Zufri (counsel for appellant).

Summary

The appellant was convicted of attempted rape of a university student at UMS student housing and sentenced to 13 years' imprisonment with 6 strokes of whipping. The Court of Appeal allowed the appeal and set aside the conviction, finding the trial court erred in relying on inadmissible evidence and the DNA evidence of an unknown male found on the victim's bra and room window grill excluded the appellant as the assailant.

What was the outcome of Arshad Bin Masdin v Pendakwa Raya [Pendakwa Raya]?

<p>The appellant was convicted of attempted rape of a university student at UMS student housing and sentenced to 13 years' imprisonment with 6 strokes...

Statutes Cited

Criminal Procedure Code (Cap 593)
Evidence Act 1950
s 27
Evidence Act
s 114(g)
Evidence Act 1950
s 27
Evidence Act 1950 (Cap 56)
s 114(g) s 27
Penal Code (Cap 574)
s 376(2)(a) s 511

Cases Cited (12)

UK (1)
[2013] 1 WLR 2477
MY (11)
[1966] 1 MLJ 116 [1977] 2 MLJ 78 [1981] 1 MLJ 84 [1987] 1 CLJ 471 [2005] 1 CLJ 389 [2007] 3 CLJ 281 [2008] 4 CLJ 1 [2013] 9 CLJ 48 [2013] 9 CLJ 692 [2016] 3 CLJ 895 [2020] 12 MLJ 67