Public Prosecutor v Kamarul Azamin bin Mohamad [2021] 8 MLJ 502

High Court (Kuala Lumpur)

Outraging Modesty  (child)

Facts

1.     The Complainant in this case is the victim’s mother and the Accused is a teacher at the Victim’s school.  On 5.5.2016 when the Claimant was at home, the victim complained that he dislike the Accused because the Accused is homosexual (gay).

2.     The Accused had taken the Victim’s hand and placed it to the Accused genitals and told the Victim to not inform the school about this.

3.     The Complainant and the Victim’s father went to the school to lodge a complaint about the sexual harassment suffered by the Victim.  The school then bring the complaint to the attention of the school principal and an investigation was conducted.

4.     On 6.5.2016, the Victim complained that the same incident happened to him and his friend in the computer lab.  The Accused again had taken the Victim’s hand and placed it on the Accused’s genitals.

5.     Later on 9.5.2016, the Victim and his friends were called by the school counsellor to tell what happened in the computer lab and their written statement was taken.

6.     Since there was no further action taken by the school, the Victim lodged a police report and the police then conducted an investigation.

7.     The Accused then was arrested by the police on 12.5.2016 and later was transferred to the Pudu Education Office in Bangsar and was not allowed to teach in that school.

2.    Whether the sentence given by the Session Court is adequate?

1.    What amounts to gross indecency?

(a) The offence of ‘gross indecency’ is described as an offence which falls short of penetration by the accused.  However, the term is not defined in the Penal Code and thus the Court referred to the decided cases-

(i)             The court referred to the case of Mohd Khairul Hisam Azis v PP [2019] 1 LNS 445 where in this case there was no penetration even though the Accused tried to perform fellatio.

(ii)            In the case of Zaini bin Hussin v PP [2020] 10 MLJ 165, there was no evidence that the Accused penetrated the Victim as described in the charge and the medical report also stated that there was no tear detected at the Victim’s anus.

(iii)           Further in the case of Mohamad Izzani bin Zainudin v PP [2019] 7 MLJ 366, the Victim felt a slight pain in her vagina as there is penetration by the Appellant’s penis.

(b) Section 354 of the Penal Code states that-

“Assault or use of criminal force to a person with intent to outrage modesty

354. Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to ten years or with fine or with whipping or with any two of such punishments”.

(c)  Thus, in order to prove the offence, the accused must-

(i)             Assaulted or used criminal force to the victim; and

(ii)            Intended thereby to outrage the victim’s modesty; or that he knew it to be likely that he would thereby outrage the victim’s modesty.

(d) Therefore, the Court found that the accused is guilty under Section 354 of the Penal Code.

2.     The sentence

(a) The learned Session Court Judge had erred herself when she considered the school’s internal investigation against the Accused where the alleged same offence has been committed by the Accused in the past as it was not done according to the requirements of a criminal trial.

1.    The High Court took into account that this is the Accused’s first offence and ordered a fine of ten thousand ringgit for each charge.

1.      The Accused must be charge with the right provision according to the law and the offence committed in order for the Court to give adequate sentence.

2.       In doing so, the Court must take into account the mitigating and aggravating factors put forward by the parties.