KOTA KINABALU: A man’s appeal against the consecutive jail sentences for raping his teenage cousin was allowed by the Court of Appeal yesterday.
He will now serve 13 years’ jail instead of 26 years after the Appellate Court ordered the sentences to run concurrently.
The three-member bench chaired by Datuk Dr Badariah Sahamid, who sat with Justices Datuk Harmindar Singh Dhaliwal and Datuk Yew Jen Kie, unanimously allowed the 41-year-old’s appeal.
The judges also quashed the order by the Sessions Court for him to be placed under police supervision for two years after serving his jail term.
However, the appellant’s bid to have his convictions under Section 376 (1) of the Penal Code set aside was dismissed while his whipping sentence was also maintained.
“The conviction is safe, we affirm the conviction of the appellant for the offence charged.
“However we are of the opinion that the sentence is wrong in law. One transaction, should be concurrent not consecutive. If consecutive, it exceeds the maximum 20 years jail,” the court ruled.
On September 29, 2016, the Sessions Court here sentenced the appellant to a total of 26 years in jail after finding him guilty of raping his cousin, aged 14, on two occasions, on November 6, 2015 at 2.30 pm and on November 7, 2015 at 7 am at a hotel in the city here.
The trial judge imposed a 13-year jail sentence respectively and ordered for the jail sentences to run consecutively, but allowed his application for a stay of execution, pending an appeal to the High Court.
On September 5, 2018, the High Court here allowed the prosecution’s appeal and the appellant’s jail sentences were affirmed.
The court further imposed three lashes each on the charge as an additional sentence.
The High Court also ordered the accused to serve his jail terms on the same day after dismissing the appellant’s application for a stay of execution, pending his appeal to the Court of Appeal.
Defence counsel Nurul Rafeeqa Afdul Mutolip urged the court to set aside the conviction of her client on the grounds that the evidence adduced in the trial showed no presence of spermatozoa and the DNA analysis was negative.
The counsel submitted that the rape incident occurred within 72 hours, so there was no evidence of penetration.
The counsel further argued that the victim had allegedly lied to her mother about the rape incident because she was afraid that she might be chased out of the house.
On the appeal against the sentence, the counsel submitted that the two occasions were almost at the same time.
In reply, the prosecution submitted that even though the DNA was negative and swab was not taken, these were only small issues as the evidence by the victim and the appellant’s defence were corroborated that they had checked in and out of the hotel.
The prosecution further submitted that the fourth prosecution witness had testified as to why there was no fresh tear found on the victim’s hymen as it would not necessarily have a fresh tear when there was sexual intercourse after the rape.