Bowler escaped jail for rape of minor as he did not use force, coercion or violence, says court
August 27, 2012
KUALA LUMPUR, Aug 27 — A lengthy jail sentence would have been imposed on national bowler Noor Afizal Azizan for the statutory rape of a 13-year-old girl when he was 19 if he had been older or had used force, coercion or violence, the Court of Appeal said today in a written judgment explaining why it had controversially substituted imprisonment with a good behaviour bond for five years.
The court said, however, that its decision should not be considered a precedent for all future cases involving statutory rape and should be judged on its own merits.
Court of Appeal president Tan Sri Raus Sharif (picture)said in the judgment released today that Noor Afizal, who is now 21, was a “young boy who was extremely remorseful for what he had done and had thrown himself to the mercy of the court by pleading guilty to the charge.”
Raus, who sat with Justices K.N. Segara and Azhar Ma’ah, wrote the grounds of judgment.
Noor Afizal was let off with a RM25,000 bond instead of being jailed after he pleaded guilty to statutory rape, sparking a firestorm online over the court’s message on sex with minors even as it raised questions about the Penal Code and other criminal laws.
Incensed Malaysians have taken to Twitter and Facebook to vent their outrage against the judiciary after the Court of Appeal reversed earlier this month a High Court decision to jail the bowling ace for five years — suggesting that fame and a bright future are enough to ensure a convicted offender gets a ticket away from jail.
But the Court of Appeal pointed out today that its decision to let the bowler off with a bond did not have blanket application, or applied to all cases involving young offenders committing a similar offence.
“If the appellant (Noor Afizal) had been older or if he had used force, coercion or violence on the victim, or if he had tricked the victim... or he had not co-operated with the police and he had not shown any remorse to his act or there is no guarantee that he will not be committing the same offence in future, we would not have any hesitation, as we have done in many other cases of similar nature, to impose a lengthy custodial sentence,” said Raus.
In the Malacca Sessions Court, the judge had imposed a RM25,000 bond with good behaviour for five years on Noor Afizal after he pleaded guilty to raping the girl at a hotel in Ayer Keroh, Malacca on July 5, 2010.
However, the public prosecutor had appealed to the High Court on September 20 last year and obtained a five-year custodial sentence, the mandatory minimum for rape under the Penal Code.
According to the facts of the case which was laid down in the written judgment of the Court of Appeal today, Noor Afizal had checked into a hotel in Malacca on July 5, 2010 together with the girl who was then 13 years and four months old.
The two had what was described as consensual sex. The next morning Noor Afizal sent the girl home.
The girl did not complain to anyone and the incident only came to light when her father read about what she had done in her diary.
Raus pointed out today that Noor Afizal’s bond was in fact a suspended jail sentence and that he would always have a criminal record as a rapist.
When one read the judgement by the court,there is something one might think that the law is applicable to a citizen depending on the guilt remorseness and many other factors. What if the guilt can always put up all the excuses for defend.......?
What a stupid, stupid judgement and rationale by the Court of Appeal president for not jailing this scumbag! Can this nincompoop judge tell me of the possibility of a benevolent rape devoid of "force, coercion or violence"? Also, isn't sex with a minor illegal? And this completely baffles me (maybe not, since it is after all Malaysia): "... Noor Afizal’s bond was in fact a suspended jail sentence and that he would always have a criminal record as a rapist." To have a criminal record is to have committed a crime and to be known on his record as a rapist is to in fact strongly suggest that he committed a crime. Yet he is let off! Stupid country!
Law is law, then rape is definitely a rape, BUT interpretation of law is the judge, well then is judge the judge base simplily on interpretation no use force, coercion or violence, constituted no rape. Then, Penal Code should be amended without interpretation, straight on, consensual as no force etc, n rape case binded on a Bond wouldnt need case to go right up the higher up where a waste of court time n money. Well, is this considered miscarriage of justice? Interpretation wrong? Or Penalty out of consideration of its criminal gravity? Penal Code is faulty?oh, something wrong somewhere? Pondering!lah
We are probably the ONLY country in the whole wide world where rape is considered as NOT violent. In any dictionary, look up that word and you will find words describing that act as abusive, forcing people into acts of sex without consent, etc. That meant IT IS violent and demeaning in all manners of the word. Moreover, all statutory rape will still be considered as rape whether it is consensual or not. Even a layman knows this !!!
This issue is consent and the capacity to give consent. A minor does not have the mental and legal capacity to give her consent. That is the core issue. The law is intended to protect minors. If as ruled by this unlearned judged, then anyone can sweet talk a minor into having sex, no violence involved and then pay his way, like paying for a prostitute. This is going to the feudal times, where rich people can pay to marry children of rich people.
If this is Malaysia, then we are going backwards, not developing.
I thought it was rape, he confessed and was found guilty. So his guilt is not an issue. The issue now is whether the punishment given to him was too lenient or not. Should a 19 year old boy having supposedly consensual sexual relations with a supposedly willing 13 year old girl be punished as harshly as a 48 year old step father forcing himself on his unwilling 15 year old stepdaughter? Its the same crime, both are equally guilty in the eyes of the law but should they be punished the same?
"If he was older" ?? Where do we draw the line ? 20 years old , 21 or 22 ?? I thought The Law on Statutory Rape was meant to protect the minor . Now we have a Judgement that protects the person charged for Statutory Rape because he was "Not Old Enough" . I think if it was a theft case he would have been jailed.
Noor did not and will not escape punishment. He may have been allowed to walk for 25K but that doesn't mean he is free. He is a publicly known figure and now everywhere he goes (especially if he shows up at bowling tournaments) he will be hounded.
This judge is still living in feudal and barbaric times. The intent of the law is the protect minors who does not have the mental and legal capacity to give consent. What the judge did is to make a mockery of the law and Parliament, which made the law.
If the rich and powerful can pay someone to sweet talk a minor into having sex and on that basis, the sentence is a light one, just pay a fine and no jail, then there is no need for this law. This judge should be removed from the judiciary if our government is to retain its credibility with the rakyat.
What nonsense is this? This controversial decision (suspended five year sentence) had been officially handed down for that remorseful rapist who had raped an under-aged girl by the Court of Appeal. But this court President does not want this decision to used as a precedent for future cases involving statutory rape. This is another case for the country's Court of Shame.
I consider myself to be extremely liberal in my views but even I am FLABBERGASTED with this judgement !!!!!
This is not about consentual sex. This is about an ADULT (in Malaysia as the age of consent is 16, so anyone who is above 16 is an adult, even if he was 19 when he committed the crime) who had sex with a MINOR.
Even in the courts in Western liberal-thinking countries, they take this very seriously.
The judges in the court, should think, what have they done in their judgement in protecting minors from being abused by this man?
The fact that he has "tasted" sex with a Minor, what makes the court so sure he will not commit the crime again? Is the court so sure he is not a Paedophile who only want to have sex with under-aged girls?
I am not sure if there is such a thing in Malaysia, but in many countries they have a SERIOUS SEX OFFENDERS register, and those convicted of sex with minors are put onto the register for life. Also, such a crime , has to date resulted in jail sentence. Malaysia seems to be the exception rather than the rule.
The Attorney General needs to look into this case and send this case for retrial at a Higher Court. That is the least he can do to salvage some respect for the Malaysian courts.
A minor is incapable of making an educated decision in relation to sex. That is why the statutory rape law was created. To protect those who are too young to make decisions. The law was broken. His guilt was admitted. He should go to jail. You judges are wrong. May God forgive your travesty.
Must be below 20, consensual by tricking a girl to have his way with her, crocodile tears, if get caught just admit guilt and most importantly a famous bowler. Got it! Post note: dont throw shoe at judge or you get 2 years sentence.
"Court of Appeal president Tan Sri Raus Sharif said in the judgment released today that Noor Afizal, who is now 21, was a “young boy who was extremely remorseful for what he had done and had thrown himself to the mercy of the court by pleading guilty to the charge.”
As a father and god fearing citizen of Malaysia the reasoning of this judgement is NOT ACCEPTABLE at all!
Dear Judge: The Malaysian Law is meant to protect our minors whose thinking and action is suspected.
So what happen to the 13 years old girl who was subsequently dumped by this bowler. Madu diHisap Sepah dibuang!
court said, however, that its decision should not be considered a precedent for all future cases involving statutory rape and should be judged on its own merits. What is this, where are we heading with half baked judgements
What not to be considered a precedent? Is not English Law where we take our roots from built on precedent. Judges can say what they want but its what the people on the street perceive/think and form an opinion
Looks like all the Singaporeans will be heading over to Malaysia to have sex with minors! Look at what happened to all those who had 'paid' sex with a minor - all jailed. Headmaster, head of charity org, major business expat - all very useful to society and all very remorseful. The Singaporeans will plea that the girl even enjoyed it and they are helping the girl and the family and for sure our judges will let them off with no fines even. Malaysia boleh!
The judge has erred in his judgment. The AG office shd appeal on such decision rather than making it a precedent for future cases. This in particular, statutory rape is still rape, irrespective of violence.
This being the Malaysian judiciary, I highly suspect money has changed hands in order for this to happen. This judgement simply defies basic common sense. No violence? Consensual? There is no such thing as 'consensual sex' with a 13-year old, because 13-year olds aren't old enough to consent! If the bowler was truly remorseful, he would have reported himself to the police instead of waiting to be caught!
Since when rape cases are classified to a few category of judgement? Now even how you conduct the raping will determine you are jailed or not. Rape is rape...there is no need to questioned how you did it, but did you do it.