KOTA KINABALU: A former teacher of a special
education primary school in Tuaran lost his appeal against conviction and
sentence at the High Court here yesterday for raping his student nine years ago.
Justice Datuk David Wong Dak Wah upheld
Shahmirul Salleh’s conviction and sentence of 18 years’ jail plus 12 whippings
yesterday, as he held that the Sessions Court judge had correctly said that the
offence requires proof of two ingredients, which were the identity of the
appellant (Shahmirul) and the penetration of the appellant’s penis into the
vagina of the prosecution witness (who was also the rape victim).
In his reserved judgment, Wong further held that
in respect of the identity of the appellant, he found that the trial judge was
fully entitled to say that there was no doubt as to the appellant’s identity as
there was no dispute that Shahmirul was staying at the flat where the rape took
place and apart from that, PW10 had directly identified Shahmirul.
“As for the issue of penetration, counsel Hamid
Ismail for Shahmirul, attacked the finding of the learned Sessions Court judge
on the ground that she did not fully appreciate that penetration by Shahmirul
was not possible based on the evidence of PW10 when she testified that her
tight shorts and panty were at her thigh level,” ruled Wong, in dismissing the
appeal.
Wong also said, in the trial judge’s grounds,
she accepted the explanation of PW10 in that she was wearing her mother’s panty
which was loose and did not create an impediment for penetration.
“In determining whether the learned Sessions
Court judge was correct, I asked myself whether or not her decision was one
which no reasonable tribunal could arrive at, and if the answer is in the
affirmative, her decision must be overturned,” he pointed out.
“One must not forget that PW10 was merely 14
years old and the appellant was 20 years older than her, which gives rise to
the natural and reasonable inference that PW10 could be physically overcome by
the appellant’s strength.”
Wong said, “PW10 had testified that the
appellants legs were between her legs when he was on top of her.
With that position, penetration in my view was
possible as the panty PW10 was wearing, could and would have been stretched.”
“Again the size and strength of the appellant’s
legs would have separated the legs of PW10.
For this reason, PW10 was able to testify and
demonstrated that to the court with a doll as what happened on that day,” said
the judge, adding that in his view, the medical report of the doctor (PW9)
provided corroboration of the rape in that it stated that there was an old tear
to PW10’s hymen which could be caused by intercourse in the manner described by
PW10.
On Nov 30, 2006, the Sessions Court here
sentenced Shahmirul, 39, to 18 years’ imprisonment and ordered him to be given
12 strokes of the cane after finding him guilty of raping his 14-year-old mute
and deaf student in a room at a teachers’ flat in Tuaran between May 1 and 31,
2003.
The offence was framed under Section 376 of the
Penal Code which is punishable by a maximum jail of 20 years and also liable to
whipping, upon conviction.
Wong further said another factor which gave
credibility to PW10’s version was the fact that she did not lodge the report
straight after the incident as it was her intention to frame the appellant for
scolding her for playing with the appellant’s computer.
“Hence, it is not entirely correct to say that
the learned Sessions Court judge had relied entirely on the demeanour of PW10
in arriving at her decision, though the trial judge was fully entitled to, if
and which indeed she had in warning herself in accepting the evidence of PW10
without corroboration.
“Accordingly, I decline to interfere and I
affirm the sentence imposed by the Sessions Court here, and therefore the
appeal is dismissed,” Wong held.
Counsel Mary Lee held a watching brief for Sabah
Society for the Deaf, the Malaysia Coalition and the Prevention of Child Abuse
and the Sabah Women Action Resource Group (Sawo).
- The Borneo Post
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