Rape: Appeal Court upholds former kindy co-owner’s acquittal

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PUTRAJAYA: A former kindergarten co-owner remains a free man as the Court of Appeal here yesterday upheld his acquittal on a charge of raping a four-year-old girl who was attending the pre-school about five years ago.

A three-member panel led by Justice Datuk Seri Mohamed Apandi Ali unanimously dismissed the prosecution’s appeal against the decision of a Penang High Court to acquit and discharge Ewe Peng Lip, 50 of raping the girl at the kindergarten in Bukit Dumbar, George Town, Penang at 8.10am and noon between January and April 2008.

The girl was four years old at the time of the alleged incident. Currently, she is nine.

Apandi said upon perusal of the appeal record and after hearing submissions from the parties, the court found that there was sufficient justification of facts and law for the high court to hold that Ewe’s conviction was unsafe.

“We see no reason to disturb the findings of the high court.

The decision of the high court is affirmed,” said Apandi, who presided on the panel with Justices Datuk Linton Albert and Datuk Dr Hamid Sultan Abu Backer.

The prosecution was appealing against the high court decision which had set aside Ewe’s conviction and 20 years’ jail sentence and 10 strokes of the rotan imposed on him by the sessions court in George Town.

High Court judge Datuk Zamani Abdul Rahim, who allowed Ewe’s appeal had ruled that there was no conclusive evidence of penile penetration.

Hence, there was no legal and factual basis to find him (Ewe) guilty of rape.

The judge (Zamani) had also held that the girl’s testimony was highly imaginative and tainted with fantasy, as well as being inconsistent and contradictory, with various accounts given.

At the appeal proceedings today, Deputy Public Prosecutor Andi Razalijaya Dadi said the prosecution had adduced cogent evidence to convict Ewe for the offence.

He said the child’s testimony was no mere fantasy and a psychologist had found she was most likely the victim of some form of sexual abuse.

Hamid told the prosecution that they should have offered an alternative charge of outraging modesty.

Andi then requested the court to invoke its inherent powers under Section 60 of the Courts of Judicature Act 1964 to reduce
the charge to outraging modesty.

Ewe’s counsel, Datuk V Sithambaram, however, argued that three separate doctors had failed to find medical evidence to corroborate the victim’s testimony.

He said the fantasy was probably from either the coaching or pornographic videos she had watched, and her story was too much to be taken, without corroboration.

He said there were doubts in the victim’s testimony which made Ewe’s conviction unsafe. — Bernama