PUTRAJAYA: The Court of Appeal today ordered a youth who committed incest with his niece, resulting in the birth of a child, to be detained at the Henry Gurney School with immediate effect until he reaches the age of 21.
A three-member panel comprising judges Datuk Azman Abdullah, Datuk Hayatul Akmal Abdul Aziz and K. Muniandy made the order after allowing the prosecution’s appeal to set aside a 120-hour community service order previously imposed on the 19-year-old by the Kangar High Court in 2024.
Delivering the court’s decision, Judge Hayatul Akmal said the previous sentence did not commensurate with the gravity of the offence and that the High Court judge had erred in imposing such a sentence in the case.
She noted that the victim was 12 years old at the time of the incident, while the respondent, her uncle, was 14.
The incident occurred while the victim was asleep at their grandmother’s house in Kuala Perlis between 12.30 am and 5.30 am on Oct 14, 2021.
“The victim was unaware of the incident and, upon waking up, discovered traces of a viscous fluid on her legs. On May 12, 2022, the victim’s mother took her to a polyclinic after noticing that her abdomen appeared to be enlarging. An examination confirmed that she was eight months pregnant at the time.
“The victim herself was unaware that she had been raped and did not even realise that she was pregnant. Subsequent investigations identified the respondent as the perpetrator, while a chemical analysis report confirmed that he was the biological father of the child she gave birth to,” she said.
Judge Hayatul Akmal said that although the social and behavioural report had been considered, it was only one of the factors taken into account in determining the appropriate sentence.
“We agree that a 120-hour community service order is inadequate, and there are sufficient grounds for this court to exercise its jurisdiction to set aside the order and replace it with an appropriate sentence.
“Although the community service sentence has already been completed, this court retains the jurisdiction to vary the sentence by ordering the respondent to be detained at the Henry Gurney School, with immediate effect until he reaches the age of 21, as provided for under Section 91(1)(f) of the Child Act,” she said.
On Feb 21, 2024, the Kangar Magistrate’s Court had ordered the youth to perform 120 hours of community service over six months, undergo two years of supervision by the Social Welfare Department (JKM) and report to a police station every month after he pleaded guilty to the charge.
He was charged under Section 376B of the Penal Code.
At today’s proceedings, Deputy Public Prosecutor Mohamad Arif Aizuddin Masrom appeared for the prosecution, while the respondent was represented by lawyer Izleen Ismail from the National Legal Aid Foundation (YBGK).
