Justice Johan Lee said he would not substitute his own view for that of the trial court, which opted for a good behaviour bond instead of a community service order under provisions governing juvenile offenders.
“The sentence remains within the permissible ambit of Section 91(1)(b) of the Child Act 2001 and does not shock the conscience of the court,” he said in dismissing the prosecution’s appeal on sentence.
Lee, in a 28-page judgment released last week, said he was aware of the prosecution’s argument that gang rape is a serious offence under the Penal Code, requiring a severe, custodial sentence.
However, he said such classification does not “mechanically extinguish or override” the sentencing framework set out in the Child Act 2001 for a 14-year-old juvenile.
Lee said the Child Act operates as a self-contained code governing offenders who are of minor age, with an emphasis on rehabilitation, restorative justice, and the best interests of the child rather than retributive denunciation.
To allow general penal provisions to override the Child Act would undermine Parliament’s intent and reduce judicial discretion, he said.
“Therefore, this court upholds the punishment handed down by the trial court for a bond of good behaviour as particularised,” he said.
The juvenile was jointly charged with two others with committing the offence at a hotel in Alor Setar on Sept 17, 2021.
He pleaded guilty in 2024 after their defence was called. His two co-accused were found guilty and sentenced to 13 years’ jail each.
The juvenile, meanwhile, was placed on a two-year good behaviour bond without surety and ordered to report to the welfare department every two months until the completion of the bond.
One of his co-accused did not appeal. The other accused, who was 20 at the time of the offence, had his appeal against his conviction and sentence dismissed.
Lee said the man, now 25, played a full role in the offence, noting that he was at the hotel after paying for the room, while the juvenile offender arrived with the victim.
Lee also said the trial judge was right in rejecting the man’s defence of being a non-participant as a bare denial and an afterthought.
He said the victim’s testimony, supported by medical evidence, was found credible and sufficient to prove the case beyond a reasonable doubt.