PETALING JAYA: Several lawyers have condemned the recent Court of Appeal decision with regard to a national bowler convicted of raping a minor.
The lawyers asked the Attorney General’s Chambers to appeal the controversial decision of the three-judge panel to free ten-pin kegler Noor Afizal Azizan despite him pleading guilty to having sex with a 13-year-old girl, citing his “bright future”.
While acknowledging that the court could decide things at its own discretion, criminal lawyer Cheow Wee stressed that the current ruling sent a wrong message that “certain people get special treatment”.
“The way the judgment was reported, it seems that he was special. Now you are telling the public, you can have sex with anyone under 16 if you are a big celebrity or bowler, and not put him behind bars. Where do you draw the line then? Who has a bright future and who doesn’t future?”
“The AG should review this. Might as well do away with the law. If in all cases of statutory rape, the offender starts arguing that the court should use the same discretion, how many fellows will be walking the streets?” he said, adding that this was the first time he had heard of such a decision.
Cheow said the fact that it was consensual cannot even apply as a defence because it was a statutory rape case [where the victim is 16 and below].
“In a typical rape case, the defence could still attempt to prove the element of consent. But [for statutory rape] this is a strict statutory offence, where consent, according to the provision, is not an issue. It should be factored out entirely,” he said.
Meanwhile, another criminal lawyer Baljit Singh Sidhu said the Court of Appeal had “made an error in law”.
“The public interest here cannot outweigh any other interest. Offences of such nature are not accepted by any cross section of society,” he told FMT.
“The offence committed by him is very serious … it cannot be considered for plea bargaining,” he said.
He said the AG must now, pursuant to Article 145 and Section 376 of the Criminal Procedure Code, take into account public interest and make an application to review it.
“AG’s paramount interest is to take care of public interest,” he added.
Activist-lawyer Fadiah Nadwa Fikri from Lawyers for Liberty said she agreed with the position of women’s groups which criticised the appeals court, saying the law on statutory rape was there to protect minors, and not the offenders.
“This is statutory rape and the girl is a minor. We should follow what the law says. While we also look at the nature and gravity of the offence, to protect minors, we have to be more strict in imposing punishments. Consent is irrelevant, this is simply still rape, under the law,” she said.
Adding that the decision was peculiar, Fadiah compared this case to a recent High Court decision to sentence blogger Amizudin Ahmat to three months’ jail.
Amizuddin, who blogs at sharpshooterblogger.blogspot.com, was found guilty of contempt of court by breaching a court order barring him from publishing articles defaming the Information, Communications and Culture Minister Rais Yatim.
“Even a contempt of court case, the person is jailed for three months and a rape case is dealt with as such? You have to balance out the interest of the minor, the victim in the case. In this case, I believe the judges have used their discretion wrongly. It is really scary,” she said.
Yesterday, DAP lawyer Gobind Singh Deo had urged the AG to file for a review of the court’s decision.
The Puchong MP said he would raise the issue when Parliament resumed next month.
“The court must then give full reasons which must be made available to the public for either affirming or setting aside the said decision,” he was quoted as saying.
Last Thursday, it was reported that the Court of Appeal, headed by Justice Raus Md Sharif, overturned a Malacca High Court decision made in Sept 20, 2011 to jail Noor Afizal for five years. Also on the panel were judges KN Segara and Azhar Ma’ah.
Instead, it allowed a petition by the sportsman to restore an earlier decision by the Sessions Court that had only bound him over for good behaviour for five years to the sum of RM25,000.
Both the Sessions Court and the Court of Appeal had considered the fact that sex was consensual and that Noor Afizal was a first-time offender and no ordinary person.
The 21-year-old bowler, 18 at the time of the offence, had pleaded guilty on July 5 last year to raping the 13-year-old girl at a hotel in Air Keroh in 2009.
Lawyers noted that when the court bound someone for good behaviour for five years, it meant that the offender walked free, with a record of conviction.
“If he is found to commit another offence, he can be brought to court again to review the court’s position on the first offence. The court can ask him why he shouldn’t be sentenced based on his first offence. But if he is not caught, the bond will be refunded, end of matter,” said one lawyer.
Statutory rape, or sexual assault against a girl aged below 16 — with or without consent — is punishable with up to 20 years jail and whipping.