Wednesday 29 August 2012

Appeals Court to blame for child rapists escaping jail, says ex-law minister

August 29, 2012
KUALA LUMPUR, Aug 29 — Datuk Zaid Ibrahim blamed today the Court of Appeal for starting a legal trend that could see more convicted child rapists avoiding jail, saying it had abdicated its responsibility to protect children.

The former de facto law minister was weighing in on two recent court rulings in which judges had agreed to let go two young men who were found guilty of raping barely pubescent girls instead of sentencing them to the mandatory five years’ imprisonment, minimum, and whipping under section 376(2) of the Penal Code.

“I blame the Court of Appeal for this situation in our country, that having sex with an underage girl is not a serious offence,” Zaid (picture) told The Malaysian Insider in an emailed response today to public furore after the Sessions Court ruled to release 22-year-old Chuah Guan Jiu on a three-year, RM25,000 good behaviour bond despite convicting him of raping his then 12-year-old girlfriend in Penang last year.

“Judges, especially at the superior court level, have to use their common sense and legal reasoning with care.

Other judges tend to follow their reasoning,” he added, in reference to a judge’s discretionary power to release first-time offenders on probation of good conduct under certain circumstances relating to the perpetrator’s age, character, antecedents, health, mental condition or any other justifiable circumstances.
Malaysian law prescribes the age of sexual consent for girls to be 16 years and above.

“By saying it does not require a custodial sentence is a serious mistake.

“Young girls no longer have the protection of the courts,” Zaid said.

The founder of Zaid Ibrahim & Co, the country’s largest private law firm, warned that such rulings would tempt the “unscrupulous” to take advantage of the situation to perpetrate more crimes.

“I urgently call for the revision of the decision of the Court of Appeal,” he said, adding that it was also a test of the government’s commitment to protect the weak, the defenceless and the young.

Both national bowler Noor Afizal Azizan and Chuah may be classified as paedophiles, according to international medical standards and psychiatrists here, suggesting the courts may have freed sexual predators who might repeat their crime.

The World Health Organisation’s International Classification of Diseases (ICD) categorises paedophilia as “a sexual preference for children, boys or girls or both, usually of pre-pubertal or early pubertal age.”

And according to the Diagnostic and Statistical Manual of Mental Disorders (DSM) used by mental health professionals globally, paedophilia is the sexual attraction to pubescent or pre-pubescents aged 13 or younger, and the subject must be 16 or older with the child at least five years younger.

Noor Afizal was 19 when he committed the offence while the girl he raped was 13, or six years his junior.
In the case of Chuah, he was 21 at the time of the offence, while his victim was 12 ― a nine-year gap between the two.

The age difference between perpetrator and victim in both cases falls within both the ICD and DSM criteria for paedophilia.

A lengthy jail sentence would have been imposed on national bowler Noor Afizal for the statutory rape of a 13-year-old girl when he was 19 if he had been older or had used force, coercion or violence, the Court of Appeal said earlier this week in a written judgment explaining why it had controversially substituted imprisonment with a good behaviour bond for five years.

The court said, however, that its decision should not be considered a precedent for all future cases involving statutory rape and should be judged on its own merits.

Court of Appeal president Tan Sri Raus Sharif said in the judgment that Noor Afizal, who is now 21, was a “young boy who was extremely remorseful for what he had done and had thrown himself to the mercy of the court by pleading guilty to the charge.”

Raus, who sat with Justices K.N. Segara and Azhar Ma’ah, wrote the grounds of judgment.

Noor Afizal was let off with a RM25,000 bond instead of being jailed after he pleaded guilty to statutory rape, sparking a public firestorm over the court’s message on sex with minors even as it raised questions about the Penal Code and other criminal laws — especially after a second child rapist, Chuah, escaped incarceration today.

“We also considered the fact that the sexual act was consensual and that he is a school dropout,” judge Sitarun Nisa Abdul Aziz was quoted as saying by The Star in binding over 22-year-old Chuah, an electrician, for three years on a RM25,000 bond.

Incensed Malaysians have been venting their outrage against the judiciary after the Court of Appeal reversed earlier this month a High Court decision to jail the bowling ace for five years — suggesting that fame and a bright future are enough to ensure a convicted offender gets a ticket away from jail.

But the Court of Appeal pointed out in its written judgment that its decision to let the bowler off with a bond did not have blanket application, nor applied to all cases involving young offenders committing a similar offence.

“If the appellant (Noor Afizal) had been older or if he had used force, coercion or violence on the victim, or if he had tricked the victim... or he had not co-operated 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 future, we would not have any hesitation, as we have done in many other cases of similar nature, to impose a lengthy custodial sentence,” said Raus.

In the Malacca Sessions Court, the judge had imposed a RM25,000 bond with good behaviour for five years on Noor Afizal after he pleaded guilty to raping the girl at a hotel in Ayer Keroh, Malacca on July 5, 2010.

However, the public prosecutor had appealed to the High Court on September 20 last year and obtained a five-year custodial sentence, the mandatory minimum for rape under the Penal Code.

According to the facts of the case, which were laid down in the written judgment of the Court of Appeal today, Noor Afizal had checked into a hotel in Malacca on July 5, 2010 together with the girl who was then 13 years and four months old.

The two had what was described as consensual sex. The next morning Noor Afizal sent the girl home.
The girl did not complain to anyone and the incident only came to light when her father read her diary.

Raus also pointed out that in fact, Noor Afizal’s bond was a suspended jail sentence and that he would always have a criminal record for rape.

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