KUCHING: The decision of the Court of Appeal on Thursday to discharge and acquit a 60-year-old man of four rape convictions of a minor has created an uproar among professionals working with children.
A three-judge panel unanimously discharged and acquitted a jubilant Bunya Jalong, who walked free and was seen hugging defence counsel Augustine Liom.
Two professionals in medical field, who wished to remain anonymous pending further studies on the grounds of the decision and consultations with the legal fraternity, have put forward their doubts about the decision.
They are of the opinion that it is clear that having sex with a girl aged under 16 is rape in any circumstance as Section 375(f) of the Penal Code states that sex “with or without her consent, when she is under 16 years of age” is considered rape.
According to them the fact that Bunya had admitted a hand-job constitutes the act of sex with a minor and a clear admission of guilt by the perpetrator.
“If the Penal Code is unclear then the police should use the Child Act (for any child under 18 years) Section 17(2)(c), which describes sexual abuse as taking part, whether as a participant or an observer, in any activity which is sexual in nature for the purposes of sexual exploitation by any person for that person’s gratification,” said one of the professionals.
“The fact is the man impregnated the child – by what ‘tool’ it is not relevant, it is the sexual abuse, the break of the trust.”
The professionals also believe that the learned judges failed to take into account that the complainant is a child, not an adult.
“They attribute adult behaviour and motives to her. We know that children are easily coerced and manipulated, as they are not yet fully mature which even happens to adults.
“There should be no grounds to excuse this adult who had intimate sexual contact with a minor.”
Bunya was accused of raping a girl in May, June, July and August 2011 at a hotel in Sibu.
The complainant, aged 15 and four months, delivered his child at Sibu Hospital on Feb 5, 2012.
Her adoptive mother lodged a police report on March 5, 2012 leading to police investigations and subsequently the arrest and prosecution of the accused in the Sibu Sessions Court on four counts of charges.
The first charge stated that Bunya had raped the complainant at the end of May 2011 in a hotel room, which is an offence under Section 376(2)(d) Penal Code.
The second, third and fourth charges were for sexual intercourse with a minor but with consent in the subsequent months of June, July and August at the same hotel framed under Section 376(1) of the same Code.
On Oct 31, 2013, the Sessions Court convicted the accused on all four charges and imposed a 15-year jail sentence and five strokes of the rotan for the first rape charge, as well as nine years’ imprisonment and two strokes of the rotan each for the other three charges, which were to run concurrently.
The court also ordered for RM40,000 in compensation to be paid to the girl.
Bunya appealed to the High Court against the convictions, sentence as well as the order to pay compensation.
High Court Judge Supang Lian dismissed the appeals against conviction, varied the imprisonment sentences, ordered Bunya to pay the compensation and affirmed the sentences of caning.
Bunya then appealed to the Court of Appeal against the whole High Court decision.
Judges Datuk Abdul Wahab Patail, Datuk Linton Albert and Datuk Seri Zakaria Sam allowed the appeal, saying the conviction was not safe.
When contacted by thesundaypost, Augustine said the Court of Appeal’s ruling that the conviction was not safe was based on three factors.
Firstly, both the complainant and the accused’s names were not in the hotel register, giving rise to the presumption that they had not checked-in or occupied any room in the hotel.
Secondly, a specialist obstetrician had testified that pregnancy could occur if freshly ejaculated semen laden with sperm is inserted with a finger into the vagina.
In his evidence, the accused testified that he never had sexual intercourse with the complainant and that only once on June 6, 2011, the complainant had asked him to have sexual intercourse with him in a toilet of the YMCA.
According to the accused, the complainant gave him a hand-job causing him to ejaculate and then his semen was smeared onto the complainant’s fingers and his own finger, which he later inserted into the complainant’s vagina.
Thirdly, Augustine said that the appellate judges found that the complainant’s testimony was not reliable, and that she was not a reliable or truthful witness.
“The complainant had related the four incidents in the same manner, thus not quite believable and considered not credible. If on the first incident she was forced into sex, why would she follow the accused to the hotel the next three times that followed?” asked Augustine.
In her grounds to uphold the Sessions Court’s decision and maintain the conviction, Supang had said in her judgement: “I found that he (Sessions Court) had acted only on the evidence of the complainant whom he found to be credible and convincing, but also found corroboration of her evidence in the DNA report, which concluded positively that appellant (accused) is the biological father of the infant delivered by complainant.”