Sharvina Suppiah, Universiti Utara Malaysia
1.0 INTRODUCTION
The case of Samsudin bin Md Suppian v. Public Prosecutor (B-09 – 101-03/2022) stands as a crucial legal matter involving the protection of children from severe sexual abuse and the legal consequences of incestuous acts. This case is significant as it addresses the grave issue of sexual abuse within families, specifically the crime of incest and also for raising public awareness about the importance of safeguarding children from sexual offenses. As the legal proceedings unfold, this case serves as a stark reminder of the devastating impact of sexual offenses on children and the crucial role of the justice system in ensuring perpetrators are held accountable for their actions.
2.0 FACTS OF THE CASE
Samsudin bin Md Suppian was charged with sexual offences against a child under Sections 376B and 376(3) of the Penal Code, as well as Section 16(1) of the Sexual Offences Against Children Act 2017 (Act 792). On April 1, 2018, at around 6.30 p.m., the accused sexually assaulted his blood granddaughter. He had committed crime of incest. This incident took place at E-1-26 Blok E Jalan BM 4/5 Off Persiaran Mahkota Seksyen 4, Bandar Bukit Mahkota, 43000 Kajang, Hulu Langat, Selangor, when the victim's father and mother were not present at home. The victim was 7 years and 7 months old only when this tragedy happened.
When the victim came out of the restroom, the accused asked her to lay down on the bed. The poor girl, who was only seven at the time, blindly followed her grandfather's orders, unaware of what was ahead. He then removed her clothes ('pelikat') and raped her. It was proven that there was penetration. This was repeated several times, and the accused requested the victim not to talk about it with her parents. The victim had remained silent because she was frightened. After three years, at the age of ten years and eleven months, the victim filed a police report against the accused, who is also her own grandfather. The doctor examined the victim and confirmed that there was an old tearing on the hymen, which is the thin membrane that partially covers the opening of the vagina in females. The doctor's acknowledgement agreed with the victim's account. During the trial, the accused accepted all of the exhibits, which included the victim's police report, location where the incident took place, and the doctor's report as well.
As a result of his explicit admission, he was charged with committing a sexual offence against the victim. The Sexual Offences Against Children - Session Court in Putrajaya on August 16, 2021, imposed 18 years of imprisonment. The appellant was also ordered to undergo rehabilitation counseling for 10 years under the provisions of Section 26(1) of the Sexual Offences Against Children Act 2017; and to be under police supervision for 3 years after completing the prison sentence, according to Section 27(1) of the Act.
The accused then appealed to the High Court against both conviction and sentence. The Public Prosecutor, also appealed stating that the 18-year imprisonment was manifestly inadequate in light of the victim's injuries at such a young age. On March 2, 2022, the High Court dismissed the appellant’s appeal and allowed the Public Prosecutor’s appeal. The High Court upheld the conviction, increased the term of imprisonment from 18 years to 20 years, and maintained the other sentences imposed by the Sessions Court judge. The unsatisfied accused further appealed to the Court of Appeal. The Court of Appeal held that the appellant's appeal is dismissed and the conviction under Section 376B of the Penal Code, punishable under Section 376(3) of the Penal Code and read together with Section 16(1) of the Sexual Offences Against Children Act 2017, along with the imprisonment sentence of 20 years from the date of arrest on August 5, 2021, is upheld.
3.0 OVERALL OPINION ON THE CASE JUDGEMENT
Under Section 305 of the Criminal Procedure Code, the right to appeal is limited once the accused has admitted guilt except the extent or legality of the sentence has been questioned. The High Court Shah Alam has rejected the accused’s appeal due to few reasons. For instance, the Court found that understanding the Malay language should not be a barrier to the accused who was 60 years old above living and has a family in Malaysia despite coming from Indonesia. Other reasons were equally unacceptable as the accused had admitted the facts of the case although the police report and arrest were carried out much later from the incident date. Hence, in our humble view, the High Court is correct in rejecting the accused’s appeal and allowing the Public Prosecutor’s appeal because this supports and proves the application of Section 305 in ensuring the fairness in our legal system.
Besides that, the confirmation of the doctor’s report about the old tearing of hymen and the accused requesting his punishment has clearly shown his effort in mitigating the damage. Therefore, in our respectful view, the High Court’s stand that the Session Court Judge’s finding is correct and remains the Sections of the offence is deemed to be reasonable and acceptable. In the case of Abdul Hardy bin Razali v Public Prosecutor [2021] MLJU 3077, the appellant was charged and convicted of incestuous rape towards his own stepdaughter under Section 376A of the Penal Code, with punishment prescribed under Section 376B of the same Code. He received a sentence of 17 years imprisonment and 10 strokes of whipping. Additionally, the appellant was ordered to undergo rehabilitation counselling while in detention and was to be placed under police supervision for one year following his release from prison, in accordance with Sections 26 and 27 of the Sexual Offences Against Children Act 2017.
In the case of Mohamad Nazeril bin Mohamad Hamidi v Public Prosecutor [2020] MLJU 353, the accused made sexual approaches on the victim's sister and cousin, groping the former's buttocks and inappropriately touching the latter's breast. He was charged with all three counts under Section 376B (1) of the Penal Code and was convicted and sentenced to 12 years in jail for each of the three accusations. Additionally, he was ordered to be whipped twice for each offence, totalling 6 strokes.
Looking into the trend of the incest cases as mentioned above, the punishment given vary from 12 to 17 years of imprisonment together with 6 to 10 strokes of whipping. In this above case the accused was the victim’s grandfather who has a relationship of trust with her. The grandfather – granddaughter relationship is a bond that is not allowed to legally marry each other. Therefore, the accused committing sexual offence against victim is an explicit act of incest. Rape towards his own granddaughter is already a violent act against a child who is supposed to be under his care. Inferring from the cases of Ismail Rasid v PP (1999) and Saidin Ismail v PP (2008), the High Court Judge then had extended the term of imprisonment from 18 years to 20 years but excluded the whipping due to the old age (68 years old) of the accused. He was also asked to go through rehabilitative counselling sessions for 10 years and to be under police monitoring for 3 years. Thus, the Public Prosecutor’s appeal on the manifestly inadequate sentence was accepted.
Considering that the victim experienced a traumatic incident and endured its severe mental and physical impacts at the very young age of seven, it is evident that her bright future has been deeply affected. Furthermore, examining the trend of punishments in the mentioned incest cases, which typically range from 12 to 17 years of imprisonment along with whipping, the 20 years imprisonment with counselling and police monitoring in this case appears both reasonable and appropriate. Therefore, we have the same view with the Court of Appeal that the accused fully deserves this revised sentence.
REFERENCE
Abdul Hardy bin Razali v Public Prosecutor [2021] MLJU 3077 Criminal Procedure Code
Ismail Rasid v PP (1999) and Saidin Ismail v PP (2008)
Mohamad Nazeril bin Mohamad Hamidi v Public Prosecutor [2020] MLJU 353
PENAL-CODE-ACT-574
SAMSUDIN BIN MD SUPPIAN V PUBLIC PROSECUTOR
Sexual Offences Against Children Act 2017 (Act 792)
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