PUTRAJAYA – A lorry driver today failed in his final appeal to set aside his conviction and sentence of 14 years in prison as well as five lashes for committing sexual assault on a four-year-old child under the care of his wife, a babysitter.
A three-judge panel at the Court of Appeal led by Datuk Vazeer Alam Mydin Meera unanimously rejected the appeal submitted by Sulaiman Aswari, 44, as the appellant against the conviction and sentence by the Klang sessions court on April 3, 2019.
Vazeer said after considering the submissions of both parties and examining the evidence in the appeal record, the court found no merit in Sulaiman’s appeal.
“After considering the issues raised by the appellant’s lawyer, we find that the competence of the third prosecution witness (SP3, i.e. the victim) has been assessed by the sessions court judge, who has concluded that SP3 is a competent witness for the purposes of Section 17 of the Sexual Offences Against Children.
“We find that the assessment process made by the sessions court judge on the competence of SP3 is in accordance with the law, and there are no errors,” said Vazeer, who presided over the case with fellow judges Datuk Nordin Hassan and Datuk See Mee Chun.
Vazeer said the court also found that the medical reports by two medical experts also corroborated SP3’s statement and there was no reason to tamper with the concurrent findings of facts by the sessions court and the high court.
“Therefore, we find no merit in the appellant’s appeal, and therefore, the appellant’s appeal is rejected. The conviction and sentence by the sessions court confirmed by the high court is upheld, and sentencing starts today,” he said.
Sulaiman was convicted and sentenced to 14 years in prison and five strokes of the cane by the Klang sessions court for committing physical sexual assault on a girl at a house in Taman Sentosa, Klang, between 10am and 7pm in February to April 2018.
The man appealed to the Shah Alam High Court to set aside the conviction and sentence, but the sessions court’s decision was upheld.
Based on the facts of the case, the victim was under the care of a babysitter, namely Sulaiman’s wife, from 2016 to March 8, 2018, and while on the way back to the victim’s village in Ipoh, Perak, the victim told her parents that the appellant, whom she called “ayah” (father), had sexually assaulted her.
Earlier, counsel Gabriel Susayan who represented Sulaiman in his submissions said the learned trial judge had failed to ascertain the child’s capacity to understand and give rational answers as required by Section 133A of Evidence Act 1950.
“Therefore, we humbly submit that any failure to conduct the inquiry or preliminary examination does not merely amount to irregularity, but is also fatal to the evidence and the whole proceedings. Hence, it is the duty of the learned sessions court judge to determine the proper level of competence of SP3 before trial proceedings.
“The appellant respectfully submits that there is no shred of evidence in the appeal record to show the trial court by way of a preliminary examination has ascertained SP3’s capacity to understand and give rational answers,” he said.
Deputy public prosecutor Eyu Ghim Siang argued that during cross-examination, SP3 clearly stated that the appellant had committed sexual assault against her.
“It is also supported by the testimony of two doctors who confirmed that the tear on the victim's genitals was due to a blunt object such as a finger or penis,” he said. – Bernama, October 26, 2021
