KOTA KINABALU, Nov 18 — Faced with 12 years in jail and whipping, a 41-year-old Sabahan sought today to overturn his child rape conviction on grounds that the DNA samples linking him to the crime was obtained unlawfully.
The case had drawn worldwide attention when the accused, restaurant manager Riduan Masmud, took the child he raped as his second wife in May last year, with the consent of his first wife and mother of his four children aged between three and 18.
In the appeal hearing today, the lawyer for Riduan also told the High Court that the Sessions Court judge who tried and sentenced his client last year had failed to determine that the two child witnesses in the case were intelligent and mature enough to understand the judicial proceedings.
“The judge failed to comply with the strict requirement under Section 133A of Evidence Act 1950 where the Court must make inquiries and make an opinion on the child’s intelligence and understanding of their duty to speak the truth,” defence lawyer Ram Singh said, adding that the two witnesses were only 13 and 14 at the time the trial was conducted in the Sessions Court.
The lawyer argued too that forensic evidence, among them sperm samples swabbed from a handkerchief taken from Riduan’s car, which was submitted by the prosecution at the latter’s trial was unlawful for failing to comply with the DNA Identification Act 2009 and Regulations 2012.
“In the latter provisions which came into force in September 2012, it says the evidence must be taken by a police officer with rank of deputy superintendent and above.
“In this case, it was an investigating officer who had taken the samples. Therefore, we submit that the prosecutor had failed to comply with the law,” Ram said during today’s appeal hearing.
However, deputy public prosecutor Effizah Ernie Idris countered the defence’s submission, saying that evidence obtained unlawfully was still admissible if relevant to the charge, citing the high-profile sodomy case of Opposition Leader Datuk Seri Anwar Ibrahim to support her argument.
Riduan, father of four, was convicted of raping a primary schooler then aged 12 and six months in a car parked by the side of a road near the Kionsom waterfall in Inanam on February 18, last year.
Under Section 376 (1) of the Penal Code, he could be punished by a jail term of up to 20 years and whipping upon conviction.
Sessions Court judge Ummu Kalthom Abdul Samad found him guilty of statutory rape in February this year and sentenced him to serve 12 years and whipping, taking into account the fact that the Shariah Court had recognised Riduan’s marriage to the girl, now aged 13, based on Islamic law.
In her decision on February 3, Ummu Kalthom noted that the girl who has since dropped out of school to become a housewife had been deprived of her youth.
High Court judge Stephen Chung noted the submissions today and set January 5 for his decision.
Counsel Mary Florence Gomez held a watching brief for the Sabah Law Association and Voice of the Children Malaysia while counsel Mary Lee was present for the Sabah Women Action Resource Group.
Riduan is currently released on bail, pending the disposal of his appeal.
