KUALA LUMPUR: The Alor Setar High Court here has maintained a good behaviour bond on a 19-year-old teen in a gang rape case involving a then 12-year-old girl at a budget hotel, five years ago.
Justice Dr John Lee Kien How @ Mohammad Johan Lee dismissed the prosecution's appeal for a heavier sentence on the teen, who was 14 at the time of the offence.
The teen had changed his plea to guilty after three years of trial and the Sessions Court convicted him under Section 375B of the Penal Code for gang rape.
He was sentenced to a two-year behaviour bond without surety with an additional requirement to report to the nearest Welfare Department every two months until completion of the bond.
According to Justice Mohammad Johan, the accused, who was charged with two others, was already 17 at the conclusion of the trial and was preparing for his SPM examination.
The trial court had considered this along with his probation officer’s report that he was well-behaved in school and wanted to pursue further studies.
His defence contended that he scored well in his SPM and was already 19, an advanced age to enter a rehabilitative school.
"He is clearly far too old in age for such a punishment. Although Henry Gurney School allows admissions up to age 21, there is no real benefit in making such an order for the remaining two years he would be entitled to be enrolled," the judge said in the decision on May 31.
The High Court found that the trial judge properly exercised her discretion and rightfully considered the paramount philosophy of the Child Act 2001, which prioritises the rehabilitation, reformation, and best interests of the child offender.
"The accused pleaded guilty, he was a first-time offender, and he played a lesser role in the incident by not committing physical penetration. Further, his probation officer reported a high likelihood that he would turn over a new leaf, given his remorse," Justice Mohammad Johan said.
The same court dismissed a separate appeal by the third accused in the case, Syukrizan Ahmad, 25, on grounds that the conviction was safe and an appellate intervention was not warranted.
Syukrizan, who was 20 then, claimed that while the first accused in the case was raping the victim, he was merely sitting in the room engaging in a conversation with the 19-year-old.
"Yet, crucially, Syukrizan failed to call the 19-year-old (the second accused) to the stand to corroborate this narrative. Given that the 19-year-old had already pleaded guilty and was available to testify, he was a material witness for the defence.
The court maintained Syukrizan's conviction and 13-year jail sentence. The first accused in the case was also sentenced to 13 years in jail but did not file an appeal.
The full grounds of judgment was made available to the press on Thursday.
Based on the facts of the case, the victim chatted with the first accused on WhatsApp and left home with him at around 2am on Sept 17, 2021 to watch a race. The plan was hampered by heavy rain and the first accused brought the victim to a budget hotel.
Upon arrival, the victim saw the 19-year-old and Syukrizan already waiting for them and all four of them were lodged in a room that was already paid for.
According to the victim, the 19-year-old partly removed her clothes and proceeded to fondle the victim’s breast with his hands. The two others then took turns to rape her.
After the horrendous event, all four of them slept. She was later sent to a bus station where her mother picked her up. On Sept 18, 2021, a police report was lodged and all three involved were arrested later that night.
