Its president Md Raus Sharif rules that if he breaks the bound-over order, he will be arrested and dealt with for the original offence of rape.
PUTRAJAYA: Although national bowler Nor Afizal Azizan has been bound over for five years for good behaviour for committing statutory rape, the punishment does not exonerate him of the offence he has committed, said the Court of Appeal.
Its president, Md Raus Sharif, in a 14-page written judgment released today, pointed out that under the bound-over order under Section 294 of the Criminal Procedure Code (CPC), a person was in fact, convicted of the offence and the conviction was recorded.
“It will form part of the person’s criminal record and will remain there for the rest of that person’s life,” said Raus, in clarifying the misconception on the applicability of Section 294 of the CPC.
He said Nor Afizal, now aged 21, was in effect, given a suspended prison sentence and that he had to behave for a period of five years.
“If he behaves himself during the five-year period, he will escape punishment for his offence. If he fails to observe the conditions of his bond, he will then be arrested and dealt with for the original offence of rape,” he added.
Raus, the second-highest ranking judge in the country, said: “Like the learned Sessions Court judge, we are hopeful that the suspended sentence would give the appellant [Nor Afizal] another chance in life, and that he would turn over a new leaf.
“If the order of the suspended prison sentence has the effect of rehabilitating him, then public interest has indeed been served and best served.
“If the appellant [Nor Afizal] had been older, or he had used force, coercion or violence on the victim, or he had tricked the victim into submitting to him or he had not cooperated with the police and he had not shown any remorse to his act or there is no guarantee that he will not be committing the same offence in the future, we would not have any hesitation, as we have done in many other cases of similar nature, to impose a lengthy custodial sentence.
“But, before us, is a young boy who was extremely remorseful for what he had done and had thrown himself at the mercy of the court by pleading guilty to the charge.”
He noted that the case involved a 19-year-old boy, together with a girl, aged 13 years and four months, “checking in” at a hotel about midnight on July 5, 2010, to be together, for a night and they had consensual sex.
Raus said, in his judgment, that the next morning, the boy sent the girl back home and the girl did not complain to anyone. The matter only came to light on July 19, 2010, when the girl’s father happened to read her diary, where she had indicated that she had sex with the appellant.
He said that despite the girl’s repeated denial to her father on the truth of what she had stated in her diary, her father lodged a police report against the appellant on July 27, 2010, and Nor Afizal surrendered to the police and he was eventually charged in the Sessions Court.
Raus added that Nor Afizal, who initially claimed trial to the charge, changed his plea when the prosecution called the victim’s father as its first witness.
On Aug 8, this year, a three-member Court of Appeal panel chaired by Raus restored the Malacca Sessions Court’s decision to have Nor Afizal bound over for good behaviour for five years in one surety, in a sum of RM25,000 for committing statutory rape.
The panel had set aside the five-year jail term imposed on Nor Afizal by the Malacca High Court which had allowed the prosecution’s appeal for an enhanced sentence after the Sessions Court bound him over for good behaviour when he pleaded guilty to committing the offence at a hotel in Ayer Keroh, Malacca, between 12.30am and 5am on July 5, 2010.
Raus said the Sessions Court was right in exercising discretion in not sentencing Nor Afizal to prison but instead, subjecting him to a bound-over order, considering the nature of the offence and how it was committed, and other extenuating circumstances.
He said the Sessions Court, in discharging Nor Afizal on a bound over, had applied the correct principles and considered all relevant factors, including the element of public interest, the fact that it was consensual, that Nor Afizal pleaded guilty and was extremely remorseful of what he had done and that he was a youthful offender.
In accepting the principles in a court case, “Tukiran bin Taib vs Public Prosecutor”, Raus said it was a well-accepted principle of sentencing that young offenders, wherever possible and depending on the nature of the offences committed, should be kept out of prison, especially when there were other adequate means of dealing with them.
“Sentencing is one of the most difficult part of the work of a judge. We can imagine the situation faced by the learned Sessions Court judge, as well as the judicial commissioner, in dealing with this particular case,” he said.
“Whatever sentence to be imposed on this type of cases must be based on the facts of each individual case. Each case depends on its own facts and it is neither feasible nor desirable to attempt to lay down any fixed sentence that is meant to govern this type of cases.
“Therefore, these observations made by this court [Court of Appeal] should not be misconstrued as intending to have blanket application or applying to all cases involving young offenders charged with the similar offence as the appellant herein,” he said.