KOTA KINABALU: A senior citizen’s appeal against his sentence for raping a six-year-old girl four years ago was dismissed by the Court of Appeal here yesterday.
Justice Datuk Dr Badariah Sahamid, who sat with Justices Datuk Harmindar Singh Dhaliwal and Datuk Yew Jen Kie, made the unanimous decision to affirm the sentence imposed on Shamsul Rijal Abdullah, 67, after taking into consideration the appeal record and submissions by the parties concerned.
“We have carefully considered the appeal record and submissions by the appellant and the respondent.
“We are of the opinion that there was overwhelming evidence, safe conviction and no reason to decide otherwise.
“We affirm the decision of the High Court judge on the conviction as well as the sentence, the appeal is dismissed,” the court ruled.
On September 14, 2016, the Sessions Court sentenced the appellant to 18 years imprisonment and six strokes of the cane after finding him guilty of raping the minor inside a parked car at a village in Keningau on September 25, 2015.
The charge under Section 376 (2) of the Penal Code carries a jail term of up to 30 years and whipping, upon conviction.
The appellant had then appealed against the Sessions Court’s decision but the High Court here upheld the conviction and sentence.
During the hearing yesterday, defence counsel Victor Chong urged the court to vary the conviction and sentence of his client on the grounds that there was no evidence of DNA and spermatozoa adduced in the trial of the case.
The counsel argued that the chemist, the defence second witness, had testified that the medical evidence was there but one possibility must be proved, such as penetration.
On the penetration, the counsel pointed out that the victim had testified that she did not remember how long the accused’s penis was inside her vagina.
The counsel also contended that there was no evidence the car seat where the rape took place was reclined though the victim’s mother had testified that she saw the car seat reclined, but the distance between the car and the position from where the mother alleged she saw it was quite far.
In reply, the prosecution submitted that the victim was a credible witness.
It said there was no specific procedure and inquiry conducted on the competency of the victim since she testified that she understood the meaning of lying and telling lies was a sin.
The prosecution submitted that the victim did testify as the 10th prosecution witness that the appellant had inserted his penis into her urination area for a while and that she felt a pain in the area.
The victim also saw the appellant’s face but he did not say anything and that both his hands were holding the car’s window.
The prosecution further submitted that the chemist, who was called as second defence witness, was to give evidence on DNA and that the witness was not an expert in obstetrics and gynaecology (O&G) cases.
An expert in O&G was called by the prosecution and had concluded that there was penetration because there was a tear on the victim’s hymen, but the witness could not conclude whether there was any ejaculation, and no contention was raised in the trial that the appellant could not penetrate.