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High Court Malaya, Kuala Lumpur Mohamad Zabidin Mohd Diah J [Criminal Trial No: 45-9-2009]
9 January 2012
Criminal Law: Penal Code - Section 377B - Carnal intercourse against the order of nature - Complainant failed to escape, obtain help, complain or lodge police report immediately - Whether issue of consent a relevant fact - Evidence of medical doctors and chemist - Whether expert evidence - Whether evidence acceptable - Whether investigating officer tampered with evidence - Whether a prima facie case under s 180 Criminal Procedure Code made out - Uncorroborated evidence of complainant - Whether unsafe to convict accused
Evidence: Corroboration - Sexual offence - Whether corroboration necessary to prove sexual offences - Requirement for judge to warn himself of the danger of convicting on uncorroborated evidence
Evidence: Witness - Expert witness - Whether evidence of medical doctors ought to be rejected - Whether medical doctors qualified and competent to act as expert witnesses
Evidence: Expert evidence - Chemist’s evidence - Whether ought to be accepted - Whether there was any reason to doubt chemist’s findings and opinion
The accused was charged under s 377B of the Penal Code for committing carnal intercourse against the order of nature to one Saiful Bhukhari bin Azlan (‘PW1’). According to PW1’s testimony, he started to work as a volunteer with the accused from early March 2008. PW1 was the personal assistant to the accused. On 26 June 2008, PW1 was instructed by the accused to be present at a condominium unit situated at Bukit Damansara. When PW1 met the accused at the said condominium unit, the accused and he discussed the workschedule, and not long after that, the accused asked PW1 if he could have sex with PW1. Upon PW1’s response that he did not wish to have sex, the accused instructed PW1 in an angry tone to go to the master bedroom.
Further evidence from PW1 was that the accused then had sex with him and his anus was penetrated by the accused’s penis with the aid of a lubricant known as ‘KY jelly’. PW1 also testified that ejaculation occurred in his anus. Thereafter, on 27 Jun 2008, PW1 sent an email to the accused conveying his desire to resign. On 28 Jun 2008, PW1 proceeded to Kuala Lumpur General Hospital for an examination. A thorough examination of PW1’s whole body, including the anus, was done while specimens were taken from PW1. On the same day, PW1 made a police report on the matter.
It was the defence’s submission, inter alia, that:
(i) while PW1 insisted that the incident occurred without his consent, PW1 never tried to escape although he had ample opportunity to do so, or obtain help from the occupier of the condominium unit, complain to the security guard and did not immediately lodge police report on the matter. PW1 instead followed all instructions given by the accused. Therefore, it was the defence’s averment that PW1 had lied when he stated in his police report that the incident occurred without his consent and, therefore, PW1’s entire evidence could not be believed and ought to be rejected;
(ii) the evidence of the medical doctors should be rejected because they were not experts;
(iii) the reliability of the chemist’s evidence was highly questionable; and
(iv) there was tampering of evidence by the investigating officer.
Held (acquitting and discharging the accused):
(1) It was not tenable to use PW1’s failure to escape when he had the opportunity, as indicative that the offence did not take place. Under normal circumstances, such failure would be construed to mean that the incident indeed took place but it was consensual, which was not relevant in this case. (para 111)
(2) PW1 was a young man under the employment of the accused. He was not just any employee but the accused’s personal assistant who had to deal directly with the accused. PW1 idolised the accused since he was a child. Friends and a relative of PW1 had discouraged him from lodging a police report because they were concerned for PW1’s future. Based on these facts and circumstances, PW1’s failure to run away, to complain to people or the security guard or to lodge a police report immediately was understandable. It was not a basis to find PW1 to be a witness without credibility. (paras 113-114)
(3) It is trite law that a complainant’s evidence in a sexual offence requires corroboration. However, a conviction founded on the uncorroborated evidence of the complainant is not illegal, provided that the presiding judge warns himself of the danger of convicting on such uncorroborated evidence. (para 124)
(4) On the evidence of this case, the accused and PW1 were at the vicinity of the crime scene during the period mentioned in the charge. The presence of the accused at the vicinity of crime scene and the proximity of time to the commission of the offence showed there was opportunity for the offence to have taken place. More importantly, it was corroborative evidence, lending support to the credibility of PW1’s evidence. (para 137)
(5) Corroborative evidence as to what transpired between the accused and PW1 in the said condominium unit could be found in the medical history of PW1. The more crucial evidence which corroborated the evidence of PW1 on the factum of penetration of the accused’s penis into PW1’s anus was the evidence of the medical doctors. (paras 138 & 142)
(6) Based on the academic qualifications, experiences of the medical doctors and case authorities, there was no difficulty in accepting the medical doctors as expert witnesses. They were qualified and competent not only to conduct examinations, and take samples from PW1, but also to give their interpretations based on their observations during the examination on PW1. (para 155)
(7) There was no reason not to accept the chemist’s evidence here. She had impeccable credentials as a forensic scientist and expert, specifically in the area of DNA analysis. There was no reason to doubt her findings and opinion. (para 178)
(8) It was further shown that there was no way for the investigating officer to use the DNA samples to tamper with the samples collected from PW1. (para 183)
(9) The prosecution, through the evidence of PWl which had been corroborated in material particulars, had proved all the facts required to establish all the ingredients of the charge. Therefore, there was a prima facie case as defined under s 180 of the Criminal Procedure Code made out against the accused. The accused was thus called upon to enter his defence. (para 184)
(10) The accused had, however, denied sodomising the complainant. The defence claimed that it was unlikely any traces of semen could be retrieved36 hours after the sexual assault. Here, the complainant was examined and samples taken more than 56 hours after the incident. As such, it was not safe to rely on the DNA result conducted on those samples. Hence, there was no evidence to corroborate the evidence of the complainant on the factum of penetration. There was only the evidence of PW1 to prove penetration. As this was a sexual offence, the court was reluctant to convict an accused person based solely on the uncorroborated evidence of the complainant. Therefore, the accused was acquitted and discharged. (paras 207-208)
Case(s) referred to:
Chiu Nang Hong v. PP [1965] 31 MLJ 40 (refd)
Dato’ Mokhtar bin Hashim v. PP [1983] 2 MLJ 232 (refd)
Director of Public Prosecution v. Kilbourne [1973] 1 All ER 440 (refd) Junaidi bin Abdullah v. PP [1993] 3 MLJ 217 (refd)
Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734 (refd)
Mohamad Radhi Yaakob v. PP [1991] 1 CLJ (Rep) 311 (refd)
PP v. Dato’ Seri Anwar Ibrahim [2001] 3 MLJ 193 (refd)
PP v. Datuk Haji Harun bin Haji Idris [1977] 1 MLJ 15 (refd)
PP v. Lam San [1991] 3 MLJ 426 (refd)
PP v. Mohamed Ali [1962] MLJ 257 (refd)
PP v. Muhamed Sulaiman [1982] 2 MLJ 320 (refd)
Legislation referred to:
Criminal Procedure Code, s 180(4) Penal Code, ss 195, 377B
Other(s) referred to:
Freckelton & Selby on Expert Evidence, Chapter 41, p 4-562 Sarkar’s Law of Evidence, 16th edn, p 218
Counsel:
For the appellant: Mohd Yusof Zainal Abiden DPP
For the defendant: Karpal Singh Ram Singh (Ramkarpal Karpal Singh with him); M/s Karpal Singh & Co
Sankara Nair; M/s SN Nair & Partners For the Bar Council: Param Cumarasamy
JUDGMENT
Mohamad Zabidin Mohd Diah J:
[1] The accused Dato’ Seri Anwar bin Ibrahim, was charged under s 377B of the Penal Code for committing carnal intercourse against the order of nature on one Saiful Bukhari bin Azlan (PW1).
[2] The charge reads as follows:
“Bahawa kamu, pada 26 Jun 2008 antara jam 3.01 dan 4.30 petang di alamat Unit 11-5-1, Desa Damansara Condominium, No 99 Jalan Setiakasih, Bukit Damansara, Kuala Lumpur di dalam Wilayah Persekutuan Kuala Lumpur, telah dengan sengaja melakukan persetubuhan yang bertentangan dengan aturan tabii dengan Mohd Saiful Bukhari bin Azlan dengan memasukkan zakar kamu ke dalam duburnya; dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah s 377B Kanun Keseksaan”
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