Bastards of Society
When a person is convicted of rape, what crosses your mind? Does the depravity of the crime shocks you or are you just indifferent? Perhaps one might think that it is good to have another rapist locked up in prison…or that there is one less rapist on the streets. Would one look at the human rights aspect of the incarceration? Is it right to have the person locked away for a crime such as this? I might hazard a guess that perhaps nearly all if not everyone will agree that the convicted rapist should be put away for good, provided of course that he has had a fair trial.
Now, imagine if the rapist is not one that preys on women but girls. Young girls in school uniforms. Surely, they deserve the heaviest penalty possible. Now, we have had many cases but one case was finally put to rest recently (17 October 2008, The Star). The perpetrator in question is a security guard by the name of Mohd Abbas Danus Baksan who was found guilty of raping a 10 year old Nurul Huda Abdul Ghani in Johor Bahru 4 years ago. His conviction for murdering her was overturned by the Federal Court because there are evidence adduced by the prosecution does not “irresistibly point to the guilt of the appellant (Mohd Abbas)” alone.* There seems to be a third person involved but unfortunately, he was never caught. May this person pay for his sins one way or another.
Back to the issue at hand, it is therefore a miscarriage of justice to solely pin the guilt on Mohd Abbas alone though I for one would not have seen the problem of charging the accused of second-degree murder or any lesser charges of similar theme. Although the Federal Court is empowered to order a retrial as per s.92(1) Courts of Judicature Act 1964, I would surmise that as the appellant has already been convicted of rape and is now serving a 20 year sentence, that alone would be enough as the appellant is already 52 years old. Apart from the 20-year sentence, the appellant is also sentenced to be whipped for 24strokes (the maximum allowed under the Criminal Procedure Code (CPC)).
Now this is where I am peeved. The accused is exempted from the 24 strokes because he is now 52 years old. When he was first charged and convicted of rape in the Sessions Court in Johor Bahru, he was 48 years of age. He was also convicted of murdering Nurul Huda in the Johor Bahru High Court on August 27 2004. And now that his conviction for murder has been overturned, he merely has to serve his sentence for rape. But lo and behold, he is now 52 and as such will be spared the cane.
The CPC in section 289(c) states that males whom the ‘Court considers to be more than fifty years of age’ to be spared any whipping. Whom the Court considers? Surely you are above 50 or you are not. I do not see the need to consider or to even contemplate. A simple check of the Identity Card/Birth Certificate would already tell you if he is above 50 or not. Anyway, fortunately the CPC has a clause that further states that notwithstanding the fact that the male is above 50, he may still be liable for whipping if he is sentenced for whipping under section 376 of the Penal Code which is for rape. Mohd Abbas was convicted of rape under section 376 of the Penal Code and as such may not escape the whipping.
Funnily though, when I read the newspapers (The Star and The Sun…boy, do I love astrology or what..) it was reported by Bernama that he will be spared the cane because he is already 52 years old. Although he was 48 when he was sentenced, the whipping shall not be carried out until the appeal process has been finalised (s.311 CPC, S.57(3) Courts of Judicature Act ’64). Fair enough, he should not be whipped now that after his appeal he is over the age of 50. But this provision does not apply when it comes to sentenced meted out under s.376 of the Penal Code as I have highlighted earlier. So why is he being spared the rod? Is this where the provision “whom the Court considers” comes into play? Although he is 52 but really he is 82 due to the fragility of his body and whatnot…
Perhaps this is a case of ‘Spare the Rod and Spoil the Child Rapist’. Malaysia Boleh.
* as quoted from Court of Appeal President Tan Sri Zaki Tun Azmi in the Star 17 October 2008.
Now, imagine if the rapist is not one that preys on women but girls. Young girls in school uniforms. Surely, they deserve the heaviest penalty possible. Now, we have had many cases but one case was finally put to rest recently (17 October 2008, The Star). The perpetrator in question is a security guard by the name of Mohd Abbas Danus Baksan who was found guilty of raping a 10 year old Nurul Huda Abdul Ghani in Johor Bahru 4 years ago. His conviction for murdering her was overturned by the Federal Court because there are evidence adduced by the prosecution does not “irresistibly point to the guilt of the appellant (Mohd Abbas)” alone.* There seems to be a third person involved but unfortunately, he was never caught. May this person pay for his sins one way or another.
Back to the issue at hand, it is therefore a miscarriage of justice to solely pin the guilt on Mohd Abbas alone though I for one would not have seen the problem of charging the accused of second-degree murder or any lesser charges of similar theme. Although the Federal Court is empowered to order a retrial as per s.92(1) Courts of Judicature Act 1964, I would surmise that as the appellant has already been convicted of rape and is now serving a 20 year sentence, that alone would be enough as the appellant is already 52 years old. Apart from the 20-year sentence, the appellant is also sentenced to be whipped for 24strokes (the maximum allowed under the Criminal Procedure Code (CPC)).
Now this is where I am peeved. The accused is exempted from the 24 strokes because he is now 52 years old. When he was first charged and convicted of rape in the Sessions Court in Johor Bahru, he was 48 years of age. He was also convicted of murdering Nurul Huda in the Johor Bahru High Court on August 27 2004. And now that his conviction for murder has been overturned, he merely has to serve his sentence for rape. But lo and behold, he is now 52 and as such will be spared the cane.
The CPC in section 289(c) states that males whom the ‘Court considers to be more than fifty years of age’ to be spared any whipping. Whom the Court considers? Surely you are above 50 or you are not. I do not see the need to consider or to even contemplate. A simple check of the Identity Card/Birth Certificate would already tell you if he is above 50 or not. Anyway, fortunately the CPC has a clause that further states that notwithstanding the fact that the male is above 50, he may still be liable for whipping if he is sentenced for whipping under section 376 of the Penal Code which is for rape. Mohd Abbas was convicted of rape under section 376 of the Penal Code and as such may not escape the whipping.
Funnily though, when I read the newspapers (The Star and The Sun…boy, do I love astrology or what..) it was reported by Bernama that he will be spared the cane because he is already 52 years old. Although he was 48 when he was sentenced, the whipping shall not be carried out until the appeal process has been finalised (s.311 CPC, S.57(3) Courts of Judicature Act ’64). Fair enough, he should not be whipped now that after his appeal he is over the age of 50. But this provision does not apply when it comes to sentenced meted out under s.376 of the Penal Code as I have highlighted earlier. So why is he being spared the rod? Is this where the provision “whom the Court considers” comes into play? Although he is 52 but really he is 82 due to the fragility of his body and whatnot…
Perhaps this is a case of ‘Spare the Rod and Spoil the Child Rapist’. Malaysia Boleh.
* as quoted from Court of Appeal President Tan Sri Zaki Tun Azmi in the Star 17 October 2008.
