PETALING JAYA: The Kuantan High Court has acquitted a doctor charged with outraging the modesty of a woman at a private hospital five years ago.
Judicial Commissioner Samry Masri held that the doctor’s conviction under Section 354 of the Penal Code was unsafe.
The doctor was initially charged in the magistrates’ court in 2022 with outraging a woman’s decency under Section 377D of the Penal Code by allegedly touching her breasts on May 29, 2021. If found guilty, he would have faced a jail term of up to two years.
However, when the magistrate called for the doctor to enter his defence last year, the court amended the charge to Section 354 of the Penal Code for outraging modesty, which carries a heavier punishment of up to 10 years’ imprisonment, a fine, or both.
The magistrate subsequently convicted him and sentenced him to one year in jail.
In quashing the conviction, Samry said Sections 377D and 354 cover “two distinct offences” which require the prosecution to prove different elements of a crime.
Samry said the magistrate’s decision to amend the charge at the close of the prosecution’s case changed the entire nature of the case against the accused.
He noted that Section 173(h)(ii) of the Criminal Procedure Code is normally used to convict an accused on a lesser charge where only some elements of the original charge have been proven.
“For example, the court can convict a person of the lesser charge of drug possession instead of drug trafficking.
“But in this case, the amendment was not to a lesser offence. It introduced new elements of ‘criminal force’ and ‘assault’ which were not part of the original Section 377D charge,” he said.
Courts cannot ‘salvage’ cases, judge says
Samry added that the court could not “exceed its judicial function by reconstructing a new case under Section 354” after the prosecution failed to prove the original charge.
“Such an approach risks the court descending into the arena of the prosecution.
“The courts are not here to ‘repair’ the weaknesses in the prosecution’s case, or to take over the role of the public prosecutor,” he said.
The judge also ruled that the magistrate’s amended charge prejudiced the doctor’s right to a fair trial.
Samry noted that cross-examinations of the nine prosecution witnesses focussed on elements of the offence under Section 377D, depriving the defence of the opportunity to rebut the new elements under Section 354.
“The court cannot turn a blind eye to a serious irregularity that is apparent on the record,” he said.
