WATCHING BRIEF

​Introduction

SAWO, we believe, is the first in Sabah to hold a watching brief in criminal prosecution of gender-based violence, namely rape and other sexual assaults committed against women/children as well as in the first cases of human trafficking prosecuted in Sabah.
 
This, we started in 2006 under our Legal Support Services for Women and Children in Sabah with funding support from the German Committee of Women’s World Day of Prayer.
 
What is Watching Brief?

In our case, SAWO and other NGOs/groups working for empowerment of women and children, appoint an Advocate as Counsel to hold a watching brief for them with leave of the Presiding Judge in criminal cases of rape and other sexual crimes committed against women/children on the ground of public interest.
 
Why Watch Brief?

Our primary focus, over the years, has been to look out for the rights and interest of the children (girls) survivor of sexual crimes.

This is because Every child by reason of his/her vulnerability i.e. physical, mental and emotional immaturity is entitled to special safeguards, care, assistance and protection (including legal protection) from all forms of exploitation and harm in all circumstances. This is our fundamental duty recognized in the preamble of the Child Act 2001 (Act 611) ratifying the UN Convention on the Rights of the Child. 
 
According to police statistics, Sabah is one of the States with the highest recorded cases of statutory rape and incest perpetrated against young under-aged girls not counting those children who have been and are still suffering from repeated sexual crimes in agony and silence. Alarmingly, these figures are on the rise each year.

SAWO is indeed very privileged to have been allowed to hold watching brief along with all the other hard working dedicated NGOs/groups because our collective presence and stance in the criminal court, puts the focus on the rights and interest of the child complainant who is in need of special protection and treatment in the criminal justice system. This highlights and engages public conversation on the tragic plight and extent of sexual violence and manipulation perpetrated against underage children in our country. 

 How to Hold Watching Brief?

Counsel attends the criminal trial to watch that the criminal justice process is carried out fairly to bring about just outcome, to observe, note and act on any point that may arise to protect the rights and interests of the child complainant during the proceedings. Any inadequacies of the process and system observed by counsel are fed back to our NGO clients who can then take the appropriate action to press the authorities concerned for improvements or changes.
 
We strive to establish good rapport and work closely with the DPP to  provide the necessary support and assistance to the prosecution team and also with the media and other relevant child institutions to protect/promote the rights and interest of the child complainant.  
 
Though we have no voice in Court, we are there to support the family and to express our stand in solidarity with the child complainant who has the courage to testify in person and “relive” her traumatic experience in a strange formal court environment subjected to the criminal justice system.
 
Our very presence in Court is a public protest and denunciation of sexual crimes against children as abhorrent and totally unacceptable. We are advocating it is a crime against our humanity. It is in the public interest that the Presiding Court imposes a deterrent punishment on convicted rapists of statutory rape as mandated by the provisions of the Penal Code. 

​According to police statistics, Sabah is one of the States with the highest recorded cases of statutory rape and incest perpetrated against young under-aged girls not counting those children who have been and are still suffering from repeated sexual crimes in agony and silence. Alarmingly, these figures are on the rise each year.- DaIly Express,
22 October 2015 at page 6, article titled "Rise in domestic violence, rape, child abuse cases"

THE SAWO EXPERIENCE OF WATCHING BRIEFS

Sharing our watching brief experiences in the following   3 cases of paramount public interest, we hope, will illustrate its dynamic usefulness in empowering women and children as well as to acknowledge with deep gratitude the special contribution of skills, time, persevering support of individuals and NGOs. The trial proceedings of these cases was widely reported in all our local media as well as covered by national media.


CASE NO. 1: PUBLIC PROSECUTOR V SHAHMIRUL BIN SALLEH

Criminal Case No. 61-01-2004 (Tuaran) Sessions Court 2
Hearing     dates from January 2005 to October 2006 before Presiding Judge Tuan Ravinthran Paramaguru

Criminal Case No. 61-03-2004 (Tuaran) Sessions Court 1
Hearing    dates from August 2005 to November 2006 before Presiding Judge Puan Caroline Majanil
 
These are cases, amongst others, which involved special needs children, namely deaf and mute children of tender age who attended a special needs primary school known as Sekolah Rendah Pendidikan Khas (SRPK) Kota Kinabalu Tuaran. This is the first and only government boarding primary school for deaf and mute children throughout Sabah.
 
In these 2 cases, the accused Shahmirul Salleh, 32, was a special education teacher at the special needs school. He was charged with multiple charges of statutory rape of  two  students (aged 12 and 14), committed in his flat at the teachers quarters of the special needs school sometime in 2003.

Our Ms Mary Lee, was holding a watching brief for SAWO and  Sabah Society For the Deaf, the Malaysian Coalition For the Prevention of Child Sexual Abuse (comprising of 23 organizations).
 
The DPP who conducted the cases was Puan Raja Zaizul Faridah Bt Raja Zaharudin and Wan Abdul Eazak Hussin. The Prosecution experienced great difficulties in proceeding with the cases as the complainants were not only children but also deaf and mute with only some ability to use sign language. How would these special needs children give their evidence in Court?
 
The learned DPP sought our assistance officially in writing to source a qualified and experienced Sign Language Interpreter for the deaf and mute child complainants to be appointed by the Sessions court to assist in the criminal trials.
 
Through Geraldine Chin of Sabah Society for the Deaf, we communicated with the Society of Interpreters for the Deaf in Selangor and Federal Territory and Majudiri ‘Y’ Foundation for the Deaf in Kuala Lumpur and a system of Relay Interpreter based on the Canadian System was advocated by Majudiri ‘Y’ Foundation for the Deaf.
 
Accordingly, we have brought to the attention of the Presiding Judge through the Prosecution during the trial the following needs for the testimony of child complainants which was allowed by the court and thereby set a precedent in the conduct of such proceedings involving deaf and mute children in the future:-

(i)         The Court appointed a Relay Interpreter Team (hearing interpreter and deaf interpreter working together) comprising of Rose Ng Yoke Yang of Community Service Centre for the Deaf, Kuala Lumpur, a qualified and experienced Hearing Sign Interpreter for the Deaf and Anne Laura Raymond of Majudiri ‘Y’ Foundation for the Deaf, originally from Papar, a specialized and experienced Deaf Interpreter familiar with the local Deaf culture with excellent communication skills (gestures, mime) to interpret the evidence of the child complainants/witnesses for the difficult complex situations experienced by them during the trial.
 
The Deaf Interpreter received the messages/answers from the child complainant and passed it on using standard signing to the Hearing Interpreter who interpreted the signing and conveyed it to the Court.  
 
We believe these Sabah cases set a loud and clear precedent in Malaysia. For the first time deaf and mute children were regarded by the Criminal Courts as competent witnesses to testify and their testimony was not only heard, accepted but believed by the Court which led to the conviction of their rapist. This is a singular empowering victory for the Deaf community throughout Malaysia.
 
On 06.10.2016 the Accused was convicted and sentenced to 36 years jail  and 20 strokes of the cane under Section 376 of the Penal Code for two counts of rape of the 12 year old student in Criminal Case No. 61-01-2004 ordered to run concurrently.
 
On 30.11.2006 the Accused was convicted and sentenced to 18 years jail and 12 strokes of the cane for rape of the 14 year old student under Section 376 of the Penal Code in the second rape trial in Criminal Case No. 61-03-2004.
 
The appeal of the Accused against conviction and sentencing was  rejected by both the High Court and Court of Appeal in both cases.
 

CASE NO. 2: PUBLIC PROSECUTOR V RIDUAN BIN MASMUD

Criminal Case No. BKI-62-27/2-2013 before Sessions Court Presiding Judge Ummu Kalthom Abd Samad
 
Ten years on, we held a watching brief in this case which caught national  and international attention including BBC. This is the case where a 40 year old restaurant manager was alleged to have raped a student aged 12 years six months in his car parked by the side of road towards the Kiansom waterfalls, Inanam on the morning of 18.02.2013 and after been charged for statutory rape tried to use marriage to avoid prosecution.
 
Our watching brief for this case was triggered  by this report in Daily Express, Wednesday, 08.05.2013 at page 4 under this Heading “Rape accused  40, wants to marry girl, 13” which caught our attention.

This was what was reported:
 
“KOTA KINABALU: A 40-year-old restaurant manager, charged with raping a 13-year-old girl, wants to marry the girl, prompting the girl to withdraw the police report against him.
 
   Sessions Court Judge Ummu Kalthom Abd Samad set May 20 for mention of Riduan Masmud’s case after being told by counsel Loretto S. Padua who represented Riduan, that both Riduan and the girl are in the process of getting married in the Syariah Court.
 
   Deputy Public Prosecutor Ahmad Nazmeen Zulkifli informed the court the alleged victim had, on April 18, lodged a police report to withdraw the police report against Riduan.
 
   Ahmad Nazmeen also told the court that he had discussed the case with his superior and that the prosecution has no objection to the case being withdrawn but needed to wait until Riduan settles the matter with Syariah Court.
 
   Riduan allegedly raped the student at 10 a.m. on Feb 18 this year inside a car parked by the roadside in Jalan Air Terjum Kionsom, Inanam, here.

  He had on Feb 28 claimed trial to the offence under Section 376(1) of the Penal Code, which carries a jail term of up to 20 years and whipping, on conviction.”
                                                                                                                                   
We were shocked and outraged by what was reported and the same matter was also reported in the national newspaper “The Star”.
 
Our main concern is this. As we see it, the alleged victim in this reported case is a young vulnerable child of about 13 years old. She is an alleged victim of statutory rape who is neither legally competent to give her consent to sexual intercourse nor to the purported marriage.
 
Statutory rape perpetrated against under-aged girls is an unacceptable abhorrent crime particularly in cases that can be categorized as paedophilia as in this case. In Sabah, more than 50 per cent of rape cases reported to the Police involved under-aged girls and the worrying trend is that statutory rape is still on the rise.
 
The State is duty bound by law to protect and provide assistance to children in all circumstances regardless of status. The office of the DPP cannot be seen to condone or be complicit to such a heinous offence of statutory rape by letting the accused off under the “guise of marriage”.
 
This would not only trivialize the grievous nature of the crime of statutory rape committed against vulnerable children but would also set a harmful precedent and trend where older men can circumvent the mandatory provisions of the   Penal Code by proposing marriage after been charged with statutory rape. This surely cannot be the legislative intention of Parliament.
 
SAWO through her counsel responded immediately by writing to the Senior Federal Counsel Sabah (SFC), the Head of Criminal Division and the Honourable Attorney General (AG) in the AG Chambers, Putrajaya. SAWO called upon the Honourable AG to urgently order a full investigation of the purported marriage and withdrawal of the police report and the DPP to proceed with the prosecution of the case against the accused on the dates which was fixed by the Sessions Court on 1st to 4th July 2013. SAWO also wrote to the President of Sabah Law Association (SLA) to assign a counsel to hold a watching brief in this case which is of paramount public interest.
 
At the same time, there was a public outcry. SAWO and other NGOs including CHILD Rights Coalition Malaysia and JAG for Gender Equality through press statements voiced out their concerns over the blatant gross violation of the child’s rights in this case. The NGOs called on the relevant government agencies to protect and enforce the rights of children provided in our Child Act 2001 as well in the UN Convention on the Rights of the Child ratified by Malaysia. 
 
Subsequently, on the 22nd and 23rd May 2013 it was widely reported in the media that our former Honourable Attorney General Tan Sri Gani Patail had vowed to press on the statutory rape charge against the accused and had asked the Malaysian Anti-Corruption Commission (MACC) to investigate the claim by the girl’s father that the Accused paid him RM5,000 as compensation. 
​
On the 06.06.2013 it was reported in the news that this Sabah case has been cited for Internet protection where civil activists during a public forum “Protect Our Children: Evaluating Statutory Rape” held at the Wawasan Open University in George Town called upon the Government to look into laws to protect minors from internet sexual predators and make internet luring a serious offence. 
 
On the 07.06.2013 at the mention of the case, SFC Tuan Jamil Aripin appeared for the Prosecution and informed the Sessions Court Judge that they were proceeding with the charge against the accused. 
The prosecution of the case commenced on 01.07.2014 and was conducted by DPP Puan Raja Zaizul Faridah Binti Raja Zaharudin and DPP Puan Effizah Ernie Idris.
 
7 local and national NGOs held a watching brief in the proceedings of this case before the Sessions Court through their respective Counsel. Our Counsel besides holding a watching brief for SAWO, also held  watching brief for   Women’s Centre For Change Penang (WCC), Sisters In Islam Forum Malaysia (SIS) and Mama Anne of Bukit Harapan in the criminal proceedings. Counsel Datuk Mariati Robert and Counsel Mary Gomez held a watching brief for Sabah Law Association, Befrienders Kota Kinabalu and Voices of Children Malaysia.
 
The trial was conducted on 1st to 4th July 2013, 18th to 19th July 2013, 1st to 2nd August 2013, 21st to 23rd August 2013, 18th to 19th September 2013, 23rd   September 2013 (Mention), 16th to 18th October 2013, 13th to 14th November 2013. The Prosecution called 19 witnesses including another child who witnessed the crime from the back of the car. 
 
On the 24.01.2014 the Sessions Court Judge found the accused guilty and convicted him as charged. On the 03.02.2014 the Judge sentenced the accused to 12 years imprisonment and 2 strokes of whipping. In addition the Judge sentenced the accused be subjected to the police supervision for a period of 1 year commencing immediately after the expiration of the jail sentence passed on him under section 295(1)(a) of the Criminal Procedure Code.
 
The Sessions Court Judge in her grounds of Judgment pointed out that the rape was committed before they were married, Riduan is a mature adult who should have known better than to exploit the reckless behaviour of a young girl, the accused is a 40 year-old family man, the victim was only 12 years and six months old at the material time and a mature adult who had sexual intercourse with children should not expect a lenient sentence.
 
This decision of the Sessions Court Judge in this precedent case is also loud and clear in sending out the message to would-be offenders and the public at large that they cannot simply rape an underage girl and then marry her. The decision also has tremendous impact on public perception and confidence in the criminal system in upholding the law which must be applicable to protect all children regardless of status.

The appeal of the Accused against conviction and sentencing was rejected by the High Court on 5th January 2011.
 
This decision of this case was endorsed by the Ministry of Women, Family and Community Development who issued a statement reported in Daily Express on  9th August 2017 that “a rapist who marries his victim is not exempted of the crime”.
 

  CASE NO. 3: PUBLIC PROSECUTOR V ROHAIZAT ABDUL ANI

Criminal Case No. BKI-61-5/8-2013;
Criminal Case No. BK-61-6/8-2013;
​Sessions Court II  before Presiding Judge Puan Ainul Shahrin Binti Mohamad
 
This is the last case we held a watching brief. The Accused was a law enforcement officer, a 56 years old senior police officer of the rank of  a Deputy Superintendent of Police and former head of the vice, gambling and gangsterism unit at Kepayan Police Headquarters who was charged with four counts of rape (under 375(1)) and one count of sodomy (under 377B) of an underage school girl of 13 in 2012 at Tang Dynasty Hotel.
 
The trial commenced on 12th January 2015 with DPP Tuan Azreeri Nordin DPP and DPP Puan Effizah Ernie Idris prosecuting the case. Besides SAWO, Counsel Mary Gomez was holding a watching brief for SLA and Voice of Children Malaysia. 
 
The trial of the case was conducted on 12.01.2015, 13.01.2015, 14.01.2015, 15.01.2015, 02.02.2015, 02.03.2015, 09.04.2015, 02.06.2015, 03.06.2015,  04.06.2015, 05.06.2015, 11.06.2015, 12.06.2015, 22.06.2015, 23.06.2015, 27.07.2015, 29.07.2015, 30.07.2015, 29.09.2015, 30.09.2015, 16-20.11.2015. Nineteen prosecution witnesses and five defence witnesses were called to testify.
 
DPP Azreezi Nordin during closing submission urged the Court to impose a deterrent sentence on the grounds that the case involved a minor who was raped and sodomised by an adult.

“It was clearly a total manipulation of an adult against a child.”

“He is a senior police officer with the rank of DSP and he should be an example to the Royal Police and not destroy the image of police by being guardian to the public not otherwise”.
 
On 23rd December 2015, the Sessions Court found the Accused guilty as charged of 4 counts of rape and 1 count of sodomy and imposed a maximum sentence of a total of 100 years imprisonment and 15 strokes of the cane. The Presiding Judge in her grounds of decision pointed out that the Accused was a senior police officer holding the position of Chief Police D7 at the Police Headquarters in Kepayan.

“As a person with that position, he should protect society from any wrongdoings and not be involved in any criminal case”.
 
0n 09.06.2016, the High Court dismissed the accused’s appeal and affirmed the sentence imposed by the Sessions Court.
 
The Accused lost his final appeal at the Court of Appeal on 23.03.2017 to set aside his conviction and was ordered to serve his jail sentences for the  rape   charges concurrently instead of consecutively. A warrant of committal was issued by the Court of Appeal to commit the Accused to prison to serve his sentence for 40 years and to be whipped 15 times. 
 
​
CONCLUSION
Watching Brief is part of our long term ongoing activism for the fundamental rights of our children to live and grow up in a safe, caring and humane environment to attain their full human potential and dignity.