The Court of Appeal said although national bowler Nor Afizal Azizan had escaped the jail sentence on a personal bond of RM25,000 for good behaviour, the punishment does not exonerate the person of the offence he has committed.
Court of Appeal president Justice Md Raus Sharif ( right ), the second highest ranking judge in the country, said the person is in fact convicted of the offence and it is recorded.
"It will form part of the person's criminal record and will remain there for the rest of his life. In this case, the appellant was given a suspended prison sentence. He has to behave himself for a five-year period. If he behaves he will escape the jail sentence.
"If he fails to observe the conditions of his bond, he will then be arrested and dealt with the original offence of rape. Like the learned Malacca Sessions Court judge, we hope the suspended sentence would give him another chance in life and that he will turn over a new leaf.
"If the order of a suspended prison sentence has the effect of rehabilitating him, then public interest has indeed been served and best served," he said in his 14-page written judgment which is out today.
The judge also noted that Nor Afizal ( left ) was a first-time offender. Justice Raus sat with Court of Appeal judges Justices KN Segara, and Azhar Ma’ah in the decision.
Nor Afizal had at the Sessions Court pleaded guilty to statutory rape of the girl when she was 13 years and four months at the hotel between midnight and 5am on June 5, 2009. Nor Afizal was then 19.
According to the facts, the sex act at a hotel in Ayer Keroh, Malacca was consensual and was only discovered by the girl’s father after reading her diary a year later. Nor Afizal had also sent the girl home and later surrendered himself to the police after the victim’s father lodged a police report.
The court noted that had the appellant (Nor Afizal) been older at that time or used force or coerced or used violence on the girl, it would have been different.
“If he had not cooperated with the police and had not shown remorse, we (the court) would have no hesitation in imposing 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.”
While the Malacca Sessions court had given Nor Afizal a binding-over sentence, the High Court had enhanced his sentence to five years’ jail, resulting in the appeal being heard earlier this month.
‘High Court judge erred’
While noting that the High Court judge acted in the public interest in imposing a jail sentence, Justice Raus said it is trite that the appellate court (the High Court) should be slow to interfere or disturb with a sentence passed by the court below unless the sentence is unsuitable to the facts and circumstances.
“Sentencing is one of the most difficult parts of the work of the judge. We can imagine the situation faced by the Sessions Court and the High Court judge in dealing with this particular case,” Raus noted.
“In this case, we are of the view that the High Court judge was wrong to interfere with the sentence imposed by the Sessions Court. Upon perusing the judgment by the Sessions Court we found that the Sessions judge had applied the correct law principles in making orders under Section 294 of the Criminal Procedure Code.
“The fact that it was consensual, that the offender was extremely remorseful, was a youthful offender and the fact that it is a registrable offence should be taken into consideration.”
While the High Court judge had expressed concern over statutory rape cases and giving a lighter sentence, Justice Raus said the Court of Appeal is equally concerned over this case as the two had engaged in premarital sex.
“Both were teenagers. They both made a mistake in engaging in premarital sex. No doubt Nor Afizal had committed an offence but should a custodial sentence be the only safeguard into ensuring similar offences of consensual sex among teenagers will not happen?” the Court of Appeal president asked.
“We are inclined to believe that parents should impose discipline and religious knowledge to ensure teenagers would not put themselves in such a situation that will bring out this offence. In schools, sex education can be taught so that both boys and girls are aware of the dire consequences of engaging in premarital sex.
“It is a well accepted principle that young offenders should be kept out of prison especially when there are adequate means to dealing with them,” said Justice Raus.
Following the appellate court’s decision to impose a binding-over sentence on Nor Afizal, many quarters including Puchong MP Gobind Singh Deo and Teluk Intan MP M Manogaran, who are both lawyers, have been calling for a review of the Aug 8 decision.
Women’s groups have also questioned the leniency of the Court of Appeal decision.