High Court orders rape case to be retried

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KOTA KINABALU: The High Court here yesterday set aside a local man’s conviction and sentence of 15 years’ jail and four strokes of the cane for rape, and ordered the case to be retried.

Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum in handing down the decision, held that there was serious defect in omission on the part of the trial court for not reading the amended charge against 24-year-old appellant Norhafizan Mohd Fairuz at the end of the prosecution’s case.

In view of that, he said the appellant had been prejudiced.

Malanjum then ordered the case to be retried before another Sessions Court.

Yesterday was the schedule of the hearing of Norhafizan’s appeal against his conviction and sentence imposed by the Sessions Court last year and also the prosecution’s cross-appeal for the sentence to be enhanced.

Earlier on counsel Arthur Bornie informed the court that the rape charge was amended from Section 376 of the Penal Code to Section 375 (b) of the Penal Code but it was not read to the appellant.

Deputy public prosecutor Uma Devi Balasubramaniam submitted that from the appeal record she agreed that the amended charge was not read to the accused.

She also conceded that the amended charge was done at the end of the prosecution’s case.

The Sessions Court had on April 1, 2011 sentenced Norhafizan to 15 years’ jail plus four strokes of the cane after he was found guilty of raping a girl who was then 19 years and two months old, inside a car which was parked by a roadside near SMK Tandek in Kota Marudu between 8pm to 9pm on March 13, 2007.

The offence comes under Section 375 (b)/376 of the Penal Code and provides for a jail term of up to 20 years and is also liable to whipping on conviction.