Non-custodial penalty in rape of minors hogs highlight

0

KUALA LUMPUR: The handing down of non-custodial penalty in two cases of rape of underage girls going on ‘trial’ in public and prompting the government to want to amend the Penal Code was the highlight among court cases which received public criticism this year.

With the proposed amendment to Section 376 of the Penal Code, those found guilty of raping underage girls and given the mandatory jail sentence cannot refer to another section to reduce the sentence.

Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz had said that the proposed amendment was to maintain the mandatory imprisonment under Section 376, and judges could not invoke Section 294 of the Criminal Procedure Code (CPC) to impose a sentence based on their discretion.

He also said  the amendment was made in view of the high number of cases involving rape of underage girls and to protect them from being exposed to the crime.

Statutory rape is defined as a case where a man has sexual intercourse with a girl under the age of 16, with or without her consent, and carries a jail term of a minimum of five years and a maximum of 20 years, and whipping, upon conviction.

On Aug 8, the Appeals Court chaired by its president, Tan Sri Md Raus Sharif, restored the Melaka Sessions Court’s decision to have bowler Nor Afizal Azizan bound over for good behaviour for five years in one surety in the sum of RM25,000 for raping a 13-year-old girl.

The panel had set aside the five-year jail term imposed on Nor Afizal by the Melaka High Court which had allowed the prosecution’s appeal for an enhanced sentence after the Sessions Court bound him over for good behaviour when he pleaded guilty to committing the offence at a hotel in Ayer Keroh, Melaka, between 12.30 am and 5am on July 5, 2009.

Md Raus, in his 14-page written judgment, explained that although Nor Afizal had been bound over, the punishment did not exonerate him of the offence he had committed and stressed that, under the bound over order under Section 294 of the CPC, a person was in fact convicted of the offence and the conviction was recorded.

“It will form part of the person’s criminal record and will remain there for the rest of that person’s life,” said Md Raus, the second highest ranking judge in the country, in clarifying the misconception on the applicability of Section 294 of the CPC.

In a related case, electrician Chuah Guan Jiu, 22, who had been released on a bond of good behaviour by the George Town Sessions Court for raping an underage girl, was sentenced to five and a half years’ imprisonment by the Penang High Court after it set aside the subordinate court’s decision of a RM25,000 good behaviour bond for three years.

This year also saw the Federal Court uphold the Appeals Court’s landmark decision of declaring Section 15(5)(a) of the Universities and University Colleges Act 1971 as unconstitutional, after it allowed the application by four former Universiti Kebangsaan Malaysia (UKM) students to strike out the appeal by the government, Higher Education Minister and Universiti Kebangsaan Malaysia (UKM) on the grounds that the matter was academic as the section had been repealed.

On Oct 31 last year, the Appeals Court overturned the High Court’s decision in a 2-1 majority decision which also ruled that Section 15(5)(a) of the Act was unreasonable and violated freedom of speech guaranteed by the Federal Constitution.

Former Transport Minister Tun Dr Ling Liong Sik, who was ordered by the High Court to enter his defence on three charges of cheating the government in relation to the Port Klang Free Zone (PKFZ) project, had submitted another representation seeking for the prosecution to reconsider the charges made against him.

Ling, through his counsel Wong Kian Kheong, had submitted the representation on Nov 21 concerning the financing and cost of purchasing the land, and also on Oct 9 in view of the sworn evidence given by former prime minister Tun Dr Mahathir Mohamad.

The case involving National Feedlot Corporation Sdn Bhd (NFC) executive chairman Datuk Seri Mohamad Salleh Ismail, the husband of former Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil, who is facing two counts of criminal breach of trust amounting to RM49.7 million, was also in the spotlight among court cases this year.

Following the NFC issue, Shahrizat filed a RM100-million suit at the High Court against Parti Keadilan Rakyat Wanita chief Zuraida Kamaruddin and the party’s strategy director Mohd Rafizi Ramli for allegedly defaming her in the matter.

The statements made by Lembah Pantai MP Nurul Izzah Anwar during a forum on the freedom of religion of the Malays stirred the nation, and the MP filed a defamation suit against Utusan Melayu (Malaysia) Berhad claiming that the newspaper had twisted her statement.

Corporal Jenain Subi escaped a five-year imprisonment imposed on him by the Shah Alam Sessions Court after the High Court acquitted him of the charge of causing the death of 15-year-old Aminulrasyid Amzah two years ago, upon allowing his appeal on the conviction and the jail term.

The Shah Alam High Court had ordered former lawyer N Pathmanabhan and his three farm workers to enter their defence on charges of murdering cosmetics millionairess Datuk Sosilawati Lawiya and three other individuals two years ago.

It was a meaningful moment for Lynas Advanced Materials Plant (Lynas) workers as the company can finally begin its long-delayed operation after the Kuantan High Court dismissed an application for an interim injunction on its Temporary Operating Licence (TOL) filed by three Kuantan residents.

On Nov 8, judge Datuk Mariana Yahya rejected the residents’ application for stay of the TOL, pending the hearing of their judicial review applications to quash the decision of the Atomic Energy Licensing Board and the Science, Technology and Innovation Ministry to issue the TOL to Lynas. — Bernama