Você está na página 1de 7
CRIMINAL LAW II GLUP 2063 INDIVIDUAL ASSIGNMENT THE REVIEW OF RAPE CASES 1. PUBLIC PROSECUTOR v

CRIMINAL LAW II

GLUP 2063

INDIVIDUAL ASSIGNMENT

THE REVIEW OF RAPE CASES

1. PUBLIC PROSECUTOR v MOHD NABIL FIKRI MOHD SHAHARUDDIN [2016] 5 LNS 20 2. PUBLIC PROSECUTOR
1.
PUBLIC PROSECUTOR v MOHD NABIL FIKRI MOHD SHAHARUDDIN [2016]
5 LNS 20
2.
PUBLIC PROSECUTOR v CHE UMAR SIRUN [2015] 5 LNS 100
3.
AMIR EISKANDAR BIN CIK MAT v PUBLIC PROSECUTOR [2017] MLJU 882

NAME: SYAFINAZ BINTI IDRUS STUDENT ID: 244653 LECTURER: DR YUSRAMIZZA MD ISA @ YUSUF

DATE OF SUBMISSION: 3 RD MAY 2018

FIRST CASE

PART I DETAILS OF THE CASE

Name of the case: Public Prosecutor v. Mohd Nabil Fikri Mohd Shaharuddin Journal: Legal Network Series Citation of the case: [2016] 5 LNS 20 Name of the Judge(s): Zulqarnain Hassan Date: 30 April 2016 Court: Session Court, Kuala Lumpur, Malaysia

PART II- SUMMARY OF THE CASE

Facts of the case

The accused, Mohd Nabil Fikri was the victim’s brother-in-law. On the day where the rape took place, the victim was conveyed to the Accused's home rather than to the grandma's home where she was staying after she had finished her school session around 12 o’clock. At that moment, she was only 10 years and 7 months old. Upon arriving to his house’s house, there was nobody home since her sister was working. When the victim was inside the accused’s house, she was perched on the sofa and all of a sudden, the accused went into the room and he turned out with a

towel and insisted that the victim should take a shower with him but she refused to do so. Thereafter, the accused undressed the victim and instructed her to go to the washroom. Then he told the victim to sit on the toilet bowl. At that period of time, the victim was closing her eyes and he told her to spread her legs and try to insert his penis into her vagina. In the bathroom, the victim did not wear any piece clothing and she was sitting still on the toilet seat. One of the accused hand was holding the victim’s knee while the other is touching my genitals. He positioned himself by bending over while inserting his genital into the victim’s. However, the accused kept rubbing his penis close to victims genital and he continued the penetration even though the victim kept saying she was in an absolute pain. After he had done with the penetration into her genital, he put his

penis into the victim’s mouth.

Three months later after the alleged incident, on 20 th of August 2013 to be exact, victim’s mother found a white discharge on the victim’s undies. Out of curiosity, the mother asked the victim what had really happen. At first, the victim refused to tell the truth. Regardless, her mother convinced her that she would never tell anyone else, then the victim finally confessed that she had

been raped at the accuser’s house in his bathroom. After much consultations with relatives, on 24 August 2013, father of the victim chose to lodge a police report on the alleged rape by the Accused.

Issue(s) of the case

1. Whether the victim was raped by the Accused?

2. Whether the semen found on victim’s undies matched with the accuser’s DNA?

Court held

The accused will be sentenced 12 years imprisonment from the date of arrest and 9 strokes.

PART III- REVIEW OF THE CASE

Concerning the case I've chosen, Public Prosecutor v. Mohd Nabil Fikri Mohd Shaharuddin [2016] 5 LNS 20, I wish to argue every aspect of it, including the facts of the case, issues emerged and the court's decision. This hypothetical case is admittedly extreme, to some extent it could probably occur to anyone. The central question is, whether the inhumane act committed by the accused deserves a maximum punishment in return? One’s immediate response to such question would be “Of course”.

From my point of view, this case is deemed to be considered as rape as long as there is penetration. The extent of penetration does not matter. That is what slightness in the law describes, but in real cases if the victim was not a virgin, penetration should be hard to prove if no ejaculation was involved. On the other hand, I don't suppose a mere rupture of hymen is material to the matter at hand, as the victim could have disrupted it in the previous intercourse that she may have consensually had. There are, nevertheless, a number of cases law suggesting that a mere rubbing of the upper part of penis against the labia minora (outer vaginal part) is sufficient to constitute rape, which I personally beg to differ. As luck would have it, the victim’s mother found a white discharge on the victim’s undies and I think that would be proportionate for the prosecution to

prove to the court of law that the incident of rape alleged on the part of the accused is absolutely true.

To conclude that, I’d like to suggest that the accused ought to be punished with a heavier

punishment since he destroyed a life of an innocent girl. If the sentence is not severe, how many

more girls and women will have to endure rape culture?

SECOND CASE

PART I- DETAILS OF THE CASE

Name of the case: Public Prosecutor v. Che Umar Sirun Journal: Legal Network Series Citation of the case: [2015] 5 LNS 100 Name of the Judge(s): Azhar Mokhtar Date: 10 March 2015 Court: Session Court, Alor Setar

PART II- SUMMARY OF THE CASE

Facts of the case

The victim is a 33-year-old woman who lives together with her adopted mother since her childhood. The episode of rape occurred on 29th October 2013, around 10.30 pm. On that day, the accused had gone to the victim’s house and entered through the kitchen entryway. The victim opened the kitchen entryway and they talked there. As per the victim, after some conversation with the accused, he started to get distraught and he told the victim that he would execute any individual who went to the victim’s house. Right after the victim reminded the accused the fact that he is a married man, the accused pulled the victim out of house and pointing to her an object that has electric shock in her chest. Be that as it may, the victim tried to escape into the house however the accused was also in within the house, attempting to pursue the victim. At a subsequent time, the accused hit the victim by using his hand. The accused keeps on hitting the victim and furthermore he used electric stun contraption on the victim’s body until the point that she falls on the ground. The accused choked the victim's neck amid the battle between them. The victim was so weak to fight against the accused since her body felt so weak due to electric shock by the accused. He then pull her back to the back of the house. There, the accused has made the victim lying on the ground. That's where the accused has raped her. Shortly thereafter, when there appeared to be a village man to the scene, the accused escaped from there.

Issue(s) of the case

1. Whether the accused was liable under Section 376 (2) (a)?

2. Whether the Accuser’s penis penetrates into the victim’s genital?

Court Held

The accused has been convicted on the charge under Section 376 (2)(a) of Penal Code since his counsel failed to cause beyond the reasonable doubt.

PART III- REVIEW OF THE CASE

Some commenters berate Criminal Law for being inefficient, unjust and punitively toothless, while others claim that it plays a vital role in a complex system of legal regulation. With regards to the case I’ve chosen, Public Prosecutor v. Che Umar Sirun [2015] 5 LNS 100, I wish to argue every aspect of it, including the facts, issues arose and the court’s decision.

Rape is heinous crime against humanity not merely a law and order issue. The whole society must come together to correct the mindset that leads to such brutal incidents. From my point of view, forcing someone to have sex is never okay just to satisfy the thirst for sex and it is downright momentous to be noted that women should not be treated as an object. The lawmakers should make strong rule and regulations against the person who rape. In my unpopular opinion, effective policing and law enforcement can be deterrent for rape.

Based on the above case, I think it is not sufficient to convict the accused under Section 376(2)(a) of Penal Code. In order to justify my argument, let us not forget that he had voluntary brought along an electric stun and it was used on the victim’s body. I could not help but wonder,

he was in a sane state of mind at the time of raping the victim and he could rationally think of the consequences from his intentional and voluntarily act, he is obviously wanted to cause a grievous hurt against the victim’s body in order to get into her pants. The crime that he had committed, the preparations he had arranged accordingly, from bringing along the electric stun as a weapon in

order to make the victim’s body became weaker were totally brutal and wicked. It is also downright disturbing to think that he had made up such plans just to satisfy his perverted lust.

Last but not least, I am completely agree on what the court had decided in regard of this case. Therefore, he was said to have intended to rape the victim and he shall be punished to the maximum for what he had done towards the innocent victim because he knew what exactly he wanted to commit and I am absolutely sure that he knew exactly that, by using an electric stun could give him the absurd opportunity in order to rape the victim while she was in a complete weak condition.

THIRD CASE

PART I- DETAILS OF THE CASE

Name of the case: Amir Eiskandar bin Cik Mat v Public Prosecutor Journal: Malayan Law Journal Unreported Citation of the case: [2017] MLJU 882 Name of the Judge(s): Azmi Ariffin H Date: 27 April 2017 Court: High Court of Penang, Malaysia

PART II- SUMMARY OF THE CASE

Facts of the case

The rape incident took place on 9 th March 2014 around 10.30 a.m, located at No. 8-11-8 I- Park, Jalan Rajawali, 10 Kongsi Bayan Lepas, within the Southwest District, in the State of Penang. It started when the accused insisted to massage the victim’s back. The victim declined the offer but the accused kept on massaging her. At a subsequent time, he slowly took her to the room. The victim tried to fight, but he opened her shirt, and underwear and he put her in bed. The victim was afraid and she tried to fight but the victim held her hand tightly. The accused kissed the victim’s body and inserted his penis into the victim’s genital. The accused then grabbed her hand, and his penis was still inside the victim’s genital, after a few minutes later, he removed his penis from victim’s genital, and he ejaculated on the victim’s stomach. A few moments later, the accused apologized to the victim and he said that what happened was accidental and he was out of control.

Issue(s) of the case

1. Whether the Accuser’s penis penetrates into the victim’s genital? 2. Whether the sperm found was matched with the accuser’s DNA?

Court Held

The Court found that punishment for offenses under Section 376 (3) of the Penal Code was imprisonment of not less than 8 years and not more than 30 years and shall be punished with whipping not less than 10 whipping. On the other hand, the Court found that the sentence imposed by the Sessions Court Judge was commensurate with the offense committed by the accused. Therefore, the imprisonment for 15 years from the date of the conviction and the 12 rattan strokes imposed by the Sessions Court Judge are hereby retained.

PART III- REVIEW OF THE CASE

With regards to the case I’ve chosen, Amir Eiskandar bin Cik Mat v Public Prosecutor [2017] MLJU 882, I wish to argue every aspect of it, including the facts, issues arose and the court’s decision. After I’ve read the whole case, I asked myself a several questions, “Should I respect people

who apologize after he raped someone?” “How is it possible to rape someone accidentally when he is in the sane state of mind?” I could not help but wonder, why does the accused apologized after he raped the victim when he ruined someone’s life less than an hour ago? Rape is never easy, victim have to live with that their whole lives. It affects them drastically. Knowing that there

would be no way of escaping, she had succumbed to the lust of the predator, and there was no way to fight for her safety, and most importantly her dignity. It could not be denied that rape is such a shameful conduct by the accuser as if he have lost his moral standing. From my point of view, I have zero tolerance for rape crime against women or girls. By my reckoning, rape at the first place requires penetration and there was a penetration

towards victim’s genital, as verified from a medical officer who found the effects of tearing and

bruising tear off the hymen. On the other hand, she has also confirmed that there was a new tear there was a bruising effect outside the genitalia that took place within 24 hours, therefore court can

conclude that the tear was caused by a penis and in the context of this case it was the accuser’s. It ought to be noted that the extent of penetration does not matter. Aside from this, it is downright clear there is rape since the accuser had the intent to rape the victim by insisting to touch her (massage) at the first place. As luck would have it, an imminent action of the victim to lodge a police report within 24 hours could make it easier to prove the realness of the rape incident. I think that was such a wise action of the victim where the evidence could be easily accumulated. Despite being mentioned at the end, I would like to suggest that if the accused is proven guilty for the crime of rape, the judiciary should ensure a maximum punishment to be imposed

upon him. Let’s make this for the sake of justice and humanity.