506 [2023] 2 AMR

Public Prosecutor 1
v
Harkirath Singh a/l Harbans Singh
5

High Court, Penang – Criminal Appeal No. PA-41H-17-11/2021

Mohd Radzi Abdul Hamid J

November 9, 2022 10

Criminal procedure – Sentencing – Appeal – Offence of intruding into privacy of

women under s 509 of the Penal Code – Hidden camera placed in bathroom – Guilty
plea premised on mental disorder – Order for discharge under s 173A(2) of the 15
Criminal Procedure Code conditional upon a bond of good behaviour – Whether
order of discharge tenable in view of nature of offence under s 509 of the Penal
Code – Criminal Procedure Code, ss 173A(2), 294 – Penal Code, ss 51A, 509
20
The respondent was charged for two offences under s 509 of the Penal Code
for intruding into the privacy of two women where he had placed a hidden
video camera device in a staff bathroom at the Penang General Hospital. The
camera was discovered by one of the victims and an inspection of the camera 25
revealed that there were video recordings of each of the victims in their
natural state. In the process of setting up and hiding the camera in the
bathroom, the respondent had inadvertently and unknowingly recorded an
image of himself, which led to his arrest and eventually his prosecution at the 30
Magistrate's Court. The appellant accepted the respondent's offer to plead
guilty, premised on a mental disorder, "voyeuristic disorder", stated to be
suffered by him. Four medical and specialist reports ("reports") to prove the
medical condition suffered by the respondent were tendered as the main 35
mitigating factor in sentencing, which were not challenged by the appellant.
The appellant then moved the magistrate to make an order for a bond of
good behaviour after a conviction was recorded against the respondent for
all the offences which attracted the application of s 294 of the Criminal 40
Procedure Code ("CPC"). However, the magistrate preferred to exercise her
discretion in favouring the respondent with an order for discharge under
s 173A(2) of the CPC conditional upon a bond of good behaviour. Hence, the
present appeal.

Issue(s)

Whether the order of discharge by the magistrate was correct in law and
appropriate having regards to the nature of the offences under s 509 of the
Penal Code.
 [2023] 2 AMR Public Prosecutor v Harkirath Singh a/l Harbans Singh 507

1 Held, allowing the appeal and setting aside the order of the magistrate

1. The court remains abhorrent to any offence that results in the injury to
the dignity, character and reputation of any woman more so when the
5 offence involves the secret recording of a woman's natural state in an
environment when she is supposed to feel safe and secure. Nonetheless,
it must be recognised that human conduct may be influenced by some
mental disorder that may impair one's capacity to maintain normalcy
10 within a society's normal and accepted standards of morality and
decency. [see p 513 para 17]

2. Despite correctly acknowledging that the offence violated a woman's

15 dignity and was against the society's accepted standard of morality, the
magistrate had failed to address the question of severity of the offence.
The seriousness is determined by taking into account: (a) the degree of
spontaneity; (b) the risk of permanence of any recording; (c) the use of
20 ubiquitous device; (d) risk of dissemination; (e) the degree of the
victim's physical exposure; (f) the risk of potential additional victims for
as long as the device remained operative; and (g) the degree of injury to
the victim's dignity and reputation. [see p 514 para 21]
25
3. The reports tendered by the respondent did not express any opinion on
whether the respondent's mental disorder had impaired his ability to
exercise self-control when the offences were committed. On the facts,
30 there was deliberation, planning and purposeful execution of the
respondent's intention to secretly place a camera device inside a tissue
box in the bathroom which was known by the respondent will be used
by women and the device will in most likelihood record women in their
35 natural state. The respondent's actions could not be said to be a sudden
temptation, a result of a sudden uncontrollable impulse or sheer
thoughtlessness. The facts therefore showed sufficient aggravating
factors that required a revision of the magistrate's decision. The fact that
40 the offence did not come within the meaning of serious offence under
s 51A of the Penal Code did not disqualify the offence from being
treated as serious in terms of its moral reprehensibility. [see p 517
paras 24-26; p 517 para 28 - p 518 para 28]

4. Guided by the decisions in Re Badri b Abas [1971] 1 MLJ 202 and

PP v Mohamad Ramly [1974] 1 MLJ 95, the nature of the offence and the
manner it was committed did not justify the application of s 173A(2) of
the CPC. There was a failure by the magistrate to equally consider the
need of protecting public interest in such offences. Secretly intruding
into a woman's privacy and recording images of her in her natural state
508 All Malaysia Reports [2023] 2 AMR

was no trivial matter. Hence, the magistrate committed an error in 1

making the order to discharge the respondent. The offences committed
by the respondent did not fit the purpose of s 173A(2). The rehabilitative
approach taken by the magistrate must be balanced with a deterrent
approach in the particular facts of the appeal which must come in the 5
form of a conviction under each of the charges. [see p 518 para 31 - p 519
para 31; p 519 para 33]

Case(s) referred to by the court 10

Goh Lee Yin v PP [2005] SGHC 226, HC (Sing) (ref)

Jumari b Mohamed v PP [1981] 1 LNS 163 (ref)
Mohd Fairuz b Ahmad v PP [2021] AMEJ 1882; [2021] MLJU 2453, HC (ref) 15
Mohd Yusri b Mangsor & Anor v PP [2014] 4 MLJ 875; [2014] 7 CLJ 897, CA (ref)
Muhammad Ridoan & Anor v PP [2013] 1 AMR 566; [2013] 5 CLJ 904, HC (ref)
PP v Chong Hou En [2015] SGHC 69, HC (foll)
PP v Loo Choon Fatt [1976] 2 MLJ 256 (ref) 20
PP v Mohamad Ramly [1974] 1 MLJ 95; [1973] 1 LNS 120, HC (foll)
PP v Muhammad Fiqry b Jafri & Anor [2021] AMEJ 0095; [2021] 9 MLJ 915, HC
(ref)
PP v Nor Hanizam b Mohd Noor [2019] MLJU 638 (foll) 25
R v Carton [2012] EWCA Crim 3199, CA (UK) (ref)
R v Heath (Nikolas) [2017] EWCA Crim 2502, CA (UK) (ref)
R v P [2004] All ER (D) 31 (UK) (ref)
R v Tinsley [2003] EWCA Crim 3032, CA (UK) (ref) 30
Re Badri b Abas [1971] 1 MLJ 202 (foll)

Legislation referred to by the court

35
Malaysia
Criminal Procedure Code, ss 173A(2), 294
Penal Code, ss 51A, 52A, 509
Singapore 40
Probation of Offenders Act 1951, s 5(4)
Solicitors

Preeya Darrsini Sugumaran, DPP (Penang State Legal Advisor's Office) for
appellant
T Tharumarajah (T Tharuma & Associates) for respondent

Judgment received: February 1, 2023

 Public Prosecutor v Harkirath Singh a/l Harbans Singh
[2023] 2 AMR Mohd Radzi Abdul Hamid J 509

1 Mohd Radzi Abdul Hamid J

Introduction

[1] This an appeal by the prosecution ("appellant") against the decision of the
5
Magistrate's Court in exercising its discretion under s 173A(2) of the Criminal
Procedure Code ("CPC") to discharge the respondent of two offences under
s 509 of the Penal Code ("PC") instead of convicting and sentencing him with
a punishment provided under that law which is imprisonment up to
10
five years or fine or both ("appeal").
[2] The two charges ("charges") are as follows:

15 First charge
Bahawa kamu pada 9 Jun 2020 jam lebih kurang 6.00 petang bertempat di bilik
mandi No. 02-GF-188 dalam Bilik Pegawai Perubatan Atas Panggilan Wad Unit
Rawatan Rapi Pediatrik (PICU) Hospital Pulau Pinang di dalam Daerah Timur
20 Laut, di dalam Negeri Pulau Pinang, telah mengaibkan kehormatan seorang
wanita Ooi Lee Ying (K/P: 880220-02-5364) dengan cara merakam video penama
berkenaan semasa di dalam bilik mandi tersebut yang akan mengganggu
kesantunan Ooi Lee Ying (K/P: 880220-02-5364). Oleh itu, kamu telah melakukan
25 kesalahan yang boleh dihukum di bawah Seksyen 509 Kanun Keseksaan.

Hukuman:
Dihukum dengan pemenjaraan selama tempoh yang boleh sampai 5 tahun, atau
30 dengan denda, atau dengan kedua-duanya.

Second charge
Bahawa kamu pada 9 Jun 2020 jam lebih kurang 6.30 petang bertempat di bilik
35 mandi No. 02-GF-188 dalam Bilik Pegawai Perubatan Atas Panggilan Wad Unit
Rawatan Rapi Pediatrik (PICU) Hospital Pulau Pinang di dalam Daerah Timur
Laut, Di Dalam Negeri Pulau Pinang, telah mengaibkan kehormatan seorang
wanita Vilasini A/P Gunasegaran (K/P: 900905-02-5434), Oleh itu, kamu telah
40 melakukan kesalahan yang boleh dihukum di bawah Seksyen 509, Kanun
Keseksaan.

Hukuman:
Dihukum dengan pemenjaraan selama tempoh yang boleh sampai 5 tahun, atau
dengan denda, atau dengan kedua-duanya.

Background facts

[3] The respondent was charged for two offences under s 509 of the
Penal Code for having intruded the privacy of two women. The respondent
had placed a hidden video camera device inside a tissue box in a staff
510 All Malaysia Reports [2023] 2 AMR

bathroom used by on-call medical officers at the Penang General Hospital 1

including female officers. The camera was discovered by one of the victims
and an inspection of the camera revealed that there were video recordings of
each of the victims in their natural state. As fate would have it, in the process
of setting up and hiding the camera in the bathroom, the respondent had 5
inadvertently and unknowingly recorded an image of himself. That led to his
arrest and eventually his prosecution.
[4] Following a representation made by the respondent's counsel to the 10
Attorney General's Chambers, the appellant accepted the respondent's offer
to plead guilty. The offer to plead guilty to the charges was primarily
premised on a mental disorder stated to be suffered by the respondent. That
disorder was identified as "voyeuristic disorder". 15
[5] After the respondent pleaded guilty to the charges, counsel for the
respondent tendered four medical and specialist reports to prove the medical
condition suffered by the respondent as the main mitigating factor in
20
sentencing. Those medical and specialist reports were not challenged by the
appellant.
[6] The appellant then endeavoured to move the magistrate to make an
order for a bond of good behaviour after a conviction is recorded against the 25
respondent for all the offences, thus attracting the application of s 294 of the
CPC. The respondent's counsel however sought to persuade the magistrate
to exercise her discretion pursuant to s 173A(2) of the CPC in favour of
discharging the respondent without recording a conviction. 30

[7] In her grounds of judgment the magistrate held that whilst she
acknowledged that the appellant had agreed to the offer of plea of guilty
subject to a conviction and bond of good behaviour pursuant to s 294 of the 35
CPC, the power to pass sentence only rested with her as the trial judge after
consideration of arguments on the aggravating and mitigating factors.
[8] After hearing submissions from the respective parties the magistrate
40
preferred to exercise her discretion in favouring the respondent with an
order for discharge under s 173A(2) of the CPC conditional upon a bond of
good behaviour instead of recording a conviction first under s 294 of the
CPC. The respondent was ordered to place a bond of RM2,500 with one
surety under each of the charges.
Grounds of magistrate's decision

[9] In arriving at her decision, the magistrate expressed the view that whilst
she agreed that the respondent's actions violated a woman's dignity and was
 Public Prosecutor v Harkirath Singh a/l Harbans Singh
[2023] 2 AMR Mohd Radzi Abdul Hamid J 511

1 against the moral value of society, the offence was not a serious offence by
definition under s 52A of the PC. Additionally, the magistrate found that
there were strong mitigating factors in favour of the respondent. These
factors were: (a) the mental disorder suffered by the respondent; (b) that the
5 respondent is not a danger to society; (c) the respondent's remorse; (d) the
effect of a conviction on his career; (e) the respondent is first offender; (f) the
respondent's treatment and chances of recovery; (g) the embarrassment
already suffered by the respondent and his family following his plea of
10 guilty; and (h) that a bond of good behaviour is a suspended sentence and if
the respondent failed to comply with his bond he will be liable to be
sentenced to the original sentence.

15 Issues in this appeal

[10] The issue in this appeal is fairly straightforward. This court has to
determine whether the order of discharge by the magistrate pursuant to
s 173A(2) of the CPC was correct in law and appropriate having regards to
20
the nature of the offences under s 509 of the PC.
Argument by parties

25 For the appellant

[11] Essentially, learned deputy public prosecutor submitted that the nature
of the offences were offensive to society, in particular to women such as the
victims. They suffered the indignity and shame of having been recorded in
30
their natural state without their knowledge and consent. They were mentally
and emotionally traumatised. For those reasons the magistrate had failed to
adequately address the factors of severity of the offence and public interest.
That the respondent had pleaded guilty and suffered from a certain mental
35
disorder did not amount to sufficient grounds for not convicting the
respondent.
[12] In support of her arguments learned deputy public prosecutor referred
40 to, inter alia, the following decisions: PP v Loo Choon Fatt [1976] 2 MLJ 256;
Jumari b Mohamed [1981] 1 LNS 163; Mohd Fairuz bin Ahmad v PP [2021] AMEJ
1882; [2021] MLJU 2453; Pendakwa Raya v Nor Hanizam bin Mohd Noor [2019]
MLJU 638; and Muhammad Ridoan & Anor v PP [2013] 1 AMR 566; [2013] 5 CLJ
904.
For the respondent

[13] In summary, it was contended for the respondent that having regard to
the career of the respondent as a doctor, the magistrate's order to discharge
512 All Malaysia Reports [2023] 2 AMR

him was just and appropriate since the respondent was a first offender. It was 1
therefore important to give the respondent opportunity to carry on with his
career without any stigma of a criminal record following him. It was further
contended that since the prosecution did not challenge the medical and
specialist reports when they were tendered as evidence of the respondent's 5
medical condition, then the respondent must be given the chance to continue
with his treatment. Sentencing him to jail would interfere with that treatment
and may diminish any chance the respondent would have in recovering from
that mental disorder and leading a normal life. The embarrassment suffered 10
by the respondent and his family was punishment enough and served to
remind him to not repeat the offences. On the matter of public interest, it was
argued that public interest would be better served by allowing the
respondent to be treated outside the confines of a prison more so when the 15
treatments have shown positive results.
[14] In support of his arguments learned counsel referred, inter alia, to the
following cases: R v Carton [2012] EWCA Crim 3199; R v Heath (Nikolas) [2017] 20
EWCA Crim 2502; R v Tinsley [2003] EWCA Crim 3032; R v P [2004] All ER (D)
31; Goh Lee Yin v PP [2005] SGHC 226; and PP v Muhammad Fiqry bin Jafri &
Anor [2021] AMEJ 0095; [2021] 9 MLJ 915.
25
The law relating to appeals

[15] In Mohd Yusri bin Mangsor & Anor v PP [2014] 4 MLJ 875; [2014] 7 CLJ
897, Zawawi Salleh JCA (as he then was) had clearly set out the principles
pertaining to the powers of an appellate court: 30

[4] ... We are mindful that this is a factual based appeal. It is trite that an appellate
court will be slow to interfere with the findings of facts and judicial appreciation
of the facts by the trial court to which the law entrusts the primary task of
35
evaluation of the evidence. However, there are exceptions. Where:

(a) the judgment is based upon a wrong premise of fact or of law;

(b) there was insufficient judicial appreciation by the trial judge of the evidence
40
of circumstances placed before him;

(c) the trial judge has completely overlooked the inherent probabilities of the
case;

(d) that the course of events affirmed by the trial judge could not have occurred;

(e) the trial judge had made an unwarranted deduction based on faulty judicial
reasoning from admitted or established facts; or
 Public Prosecutor v Harkirath Singh a/l Harbans Singh
[2023] 2 AMR Mohd Radzi Abdul Hamid J 513

1 (f) the trial judge had so fundamentally misdirected himself that one may
safely sat that no reasonable court which had properly directed itself and
asked the correct questions would have arrived at the same conclusion, then
an appellate court will intervene to rectify that error so that injustice is not
5 occasioned,

then an appellate court will intervene to rectify that error so that injustice is not
occasioned (see Perembun (M) Sdn Bhd v Conlay Construction Sdn Bhd [2012] 4 MLJ
149, (CA); Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395; [1996] 4
10 CLJ 545 (CA)).

Deliberations by this court

[16] It must be noted that in pursuing this appeal, the appellant did not push
15 for a substitution of the order for a bond of good behaviour with a jail
sentence on the respondent. The appellant accepted that the respondent
suffers from "voyeuristic disorder" and recognised that the respondent
requires continued specialist treatment and that the respondent's interest
20 would be better served if the respondent continues to receive treatment
outside the confines of a prison environment.
[17] Now, this court wishes to firstly reiterate its strong objection to offences
25 involving the intrusion of privacy of women as decided by this court in
Pendakwa Raya v Nor Hanizam bin Mohd Nor (supra). This court remains
abhorrent to any offence that results in the injury to the dignity, character and
reputation of any woman more so when the offence involves the secret
30 recording of a woman's natural state in an environment where she is
supposed to feel safe and secure. Having stated that, this court must however
recognise that human conduct may be influenced by some mental disorder
that may impair one's capacity to maintain normalcy within a society's
35 normal and accepted standards of morality and decency.

[18] With regards to the English decisions in R v Carton, R v Heath (Nikolas),

R v Tinsley and R v P (supra) referred to by learned counsel for the
40 respondent, this court observed that in all those cases the issue that arose for
determination by the appeal courts was on the appropriateness of sentence
passed by the trial courts and not whether a conviction should have been
recorded against the accused. In all those cases a conviction was recorded
against the accused. Therefore whilst those cases may be relevant on the
issue whether a court should afford an accused suffering from a mental
disorder the opportunity to receive treatment absent of incarceration, they
do not assist in supporting the respondent's case that no conviction should be
recorded against the respondent.
514 All Malaysia Reports [2023] 2 AMR

[19] In the Singapore case of Goh Lee Yin (supra), the accused was in fact 1
convicted of the offence. Again, the issue there was on the appropriateness of
the sentence. Due to the provisions of the Singapore Probation of Offenders
Act 1951, although the conviction remained on the record of the proceedings
the conviction was deemed to not be a conviction for as long as the accused 5
complied with the terms of the probation. If the accused breached those
terms then under s 5(4) of the same Act, the accused was liable to be
sentenced for the original offence. That in effect equates to the provisions of
s 294 of the CPC, save for the deeming provisions found in the Act. Similarly, 10
that case does not assist the respondent in contending that a conviction
should not be recorded against the respondent.
[20] In this court's view a more relevant Singapore decision to refer to, unlike 15
in Goh Lee Yin which dealt with an accused suffering from kleptomania,
would be PP v Chong Hou En [2015] SGHC 69 which dealt with an accused
who also suffered from a voyeuristic disorder. In that case the High Court
had the benefit of considering two opposing expert opinions on the mental 20
disorder and this court finds the deliberations there very instructive for the
purposes of this appeal. Again the issue there was on the appropriateness of
sentence and not on conviction. His Lordship Chan Seng Onn J undertook a
careful deliberation of the aggravating and mitigating factors and finally 25
came to a decision that the sentence of 30 months' probation meted by the
district court judge was inadequate and instead an imprisonment term of
12 weeks was imposed. The particular relevance of that decision to this
appeal will be shortly later. 30
[21] Now returning to the factors considered by the magistrate, this court is
of the view that whilst she correctly acknowledged that the offence violated
a woman's dignity and was against society's accepted standards of morality,
35
she had failed to address the question of the severity of the offence. As an
example, embracing a woman in public who is a complete stranger is equally
offensive to a woman's dignity as much as recording her secretly in her
natural state. But the former is obviously less serious than the latter. The
40
seriousness or gravity of an offence is therefore relevant in deciding on the
appropriate sentence in a case such as in this appeal. That seriousness is
determined by taking into account: (a) the degree of spontaneity; (b) the risk
of permanence of any recording; (c) the use of ubiquitous device; (d) risk of
dissemination of the recording; (e) the degree of the victim's physical
exposure; (f) the risk of potential additional victims for as long as the device
remained operative; and (g) the degree of injury to the woman's dignity and
reputation.
 Public Prosecutor v Harkirath Singh a/l Harbans Singh
[2023] 2 AMR Mohd Radzi Abdul Hamid J 515

1 [22] Returning to the decision in Chong Hou En (supra), in evaluating the

aggravating and mitigating factors and the applicable principles of
sentencing, the court there had deliberated on the question whether the
accused's mental disorder had deprived him of self-control and based on the
5 expert opinion in that case, there was no such evidence. After reading his
Lordship Chan Seng Onn J's approach to the issue, this court is persuaded to
agree that the question of the respondent's ability to self-control in this
appeal is equally relevant in assessing the gravity of the offence and the
10 applicable principles of sentencing. To quote:

[25] Given that the presence of a diagnosis of a mental disorder is in most cases a
mitigating factor which the court may take into account when sentencing the
offender, its significance in terms of mitigating value depends on the factors and
15
principles enumerated above. These include specifically factors such as the causal
link, the nature and severity of the mental disorder and the offender's ability to
make conscious choices and to appreciate the nature and quality of his actions. As
explained at length, these are particularly important when determining the
20 appropriate sentencing principles which should be engaged in the sentencing
exercise.

[26] In fact, the court must pay particular attention to the nature of the mental
disorder when the disorder is one which invariably manifests itself in the doing of
25
the very act which is criminalised. If the very diagnostic criteria include the
invariable manifestation of an act which is criminalised, a causal link, however
tenuous, would almost certainly be present. It may even be circular to speak of
causation, simply on that premise – the diagnosis is based on the acting out of the
30 criminal behaviour while the criminal behaviour is explicable by the presence of
the mental disorder. The prosecution ably demonstrates the difficulty in such
cases since it would mean the more a person engaged in the criminal behaviour,
the more serious the disorder is and the greater the mitigating value the disorder
35 carries. This cannot be correct.

[27] Therefore, in this particular genus of mental disorders, the concept of a causal
link may not be particularly useful, or even that relevant for determining the
mitigating value to be ascribed to the mental disorder. In my view, where the
40 "severity" of the mental disorder in an individual is assessed with respect to the
"frequency" of the criminal act and there is a positive correlation between the
"severity" and the "frequency", then the severity and nature of the individual's
mental disorder ought not to be regarded as a mitigating factor without first
examining in detail the nature of the mental disorder, in terms of how it has
affected the individual's ability or capacity to control or refrain himself from
committing the criminal acts and whether punishment will be able to instil fear in
him and deter him from committing the same criminal acts in future.

[28] If the nature of the mental disorder is such that the individual retains
substantially the mental ability or capacity to control or refrain himself when he
commits the criminal acts but he instead chooses not to exercise his self-control,
516 All Malaysia Reports [2023] 2 AMR

and if it is also shown that punishment will be effective in instilling fear in him and 1
thereby deter him from committing the same criminal acts in the future, I will
attribute very little or no mitigating value to the presence of the mental disorder.

[29] If there is evidence to show that the individual is not able or is substantially
not able to control or refrain himself from committing the criminal acts because of 5
the mental disorder and similarly, punishment is unlikely to be effective in
instilling fear in him and to deter him from committing the same criminal acts in
future because of the mental disorder, then the principle of deterrence may be
given less weight and rehabilitation may well take precedence provided that the 10
treatment mandated as part of his rehabilitation is going to be effective in treating
the mental disorder and in reducing the risk of recidivism. Nevertheless, if the
criminal offences committed are just too serious in nature, the principle of
rehabilitation may well have to give way to the principle of retribution and 15
protection of the public at large. Ultimately, the factual circumstances will govern
how all these different factors, pulling in different directions, are going to interact.
The court must judiciously weigh these various factors and arrive at a fair and just
sentence that is appropriate in all the circumstances of the case.
20
[23] This court undertook a close reading of the medical and specialist
reports as found in Vol 3 of the record of appeal and found:
(a) in Dr Lee Dan Huey's medical report dated June 14, 2020 (p 28 of 25
Vol 3 record of appeal) it was stated that the respondent revealed that
he was trying hard to resist urges to snap photos;
(b) in Dr Emmanuel Joseph Pereira's report dated February 19, 2021
(p 35 of Vol 3 record of appeal) it was stated at paragraph 9.2 the 30
respondent suffers from the urge to take video recordings or
photograph. At paragraph 9.6.3 the doctor made a general statement
about men who struggle with the compulsion but makes no specific
35
reference to the respondent. Earlier at part 8 of the same report
Dr Emmanuel observed that the respondent's mood was normal most
of the time but on occasions felt anxious;

(c) in Dr Lynn Yong Ee Lin's medical report dated January 13, 2021 40
(p 36 of Vol 3 record of appeal) it was stated that the respondent had
reported that the compulsion for voyeurism can be overwhelming at
times but she did form any opinion on the matter; and

(d) in her report dated March 25, 2021 (p 38 Vol 3 record of appeal)
Dr Lynn did not express any opinion on the matter of compulsion or
self-control but stated that the respondent had shown commitment
towards change.
 Public Prosecutor v Harkirath Singh a/l Harbans Singh
[2023] 2 AMR Mohd Radzi Abdul Hamid J 517

1 [24] In this court's view, those reports did not express any opinion on
whether the respondent's mental disorder had impaired the respondent's
ability to exercise self-control when the offences were committed. It is not
evident to this court that there is any expert opinion on such impairment
5 other than just reporting what the respondent conveyed regarding his
difficulty in resisting urges and his compulsion for voyeurism. Whether the
compulsion was so overwhelming that the respondent lost the ability to
control himself when he went to the general hospital to secretly place the
10 camera inside the tissue box in the staff bathroom is not evident to this court
(see p 3 of Dr Emmanuel's report).
[25] After considering the facts in this appeal this court finds that there was
15 deliberation, planning and purposeful execution of the respondent's
intention to secretly place a camera device inside a tissue box in the 02-GF-N
bathroom. The respondent knew that the bathroom will be used by women
and he knew that the device will in most likelihood record women in their
20 natural state since the respondent was also a doctor in the same hospital.
[26] Notwithstanding the respondent's remorse, guilt and embarrassment
over the matter, the respondent's actions cannot be said to be a sudden
temptation, a result of a sudden uncontrollable impulse or sheer
25
thoughtlessness as stated by Sharma J in Re Badri bin Abas [1971] 1 MLJ 202.
He bought the device knowing its use and then eventually used it to fulfil his
voyeuristic desires. The effort the respondent took to go the bathroom, select
a place to hide the device and put it into operation involved conscious and
30
deliberate decisions and execution that happened over some span of time. It
was not carried out and completed instantaneously at the spur of the
moment like taking up skirt photos.
35 [27] Notwithstanding that the presence of the device was discovered by one
of the victims thereby removing the potential recording of any other women
and the dissemination of its contents whether intentionally or otherwise, yet
those risks were real for if the device was not discovered and remained
40 hidden until retrieved by the respondent the contents would have been be
preserved and subjected to repeated viewing.
[28] The facts therefore show sufficient aggravating factors that requires a
revision of the magistrate's decision. The fact that the offence does not come
within the meaning of serious offence under s 51A of the PC does not
disqualify the offence from being treated as serious in terms of its moral
reprehensibility. Whilst this court does not dispute that the respondent's
mental condition is recognised medically as a disorder and that condition
amounts to an extenuating circumstance, this court cannot agree that all
other factors considered by the magistrate necessarily deserve consideration
518 All Malaysia Reports [2023] 2 AMR

in the respondent's favour. The risk of embarrassment, injury to reputation, 1

risk to a career and destruction of family relationships are matters that
should have been considered before the respondent acted on his urges, not
after. More than often such factors are brought up in mitigation only to stir
sympathy. 5

[29] Having said that however, this court agrees with learned counsel for the
respondent that the respondent's treatment, his commitment to treatment
and his progress serves as sufficient reason for this court to not substitute the 10
magistrate's order with one of custodial sentence. The fact that the appellant
had not pressed for such sentence before the magistrate and the same
position was taken at the hearing of this appeal shows that the appellant
supports the need of the respondent to be rehabilitated. In that respect the 15
interest of the appellant has been sufficiently addressed.
[30] But the matter does not end there. The interest of the public especially
the victims, must also be addressed. By granting an order under s 173A(2) of
20
the CPC, the courts will be seen as taking a soft and lenient stance on such
offences. This kind of offence is not one that merely involves a technical
offence or misuse of funds but is an offence against accepted norms of
conduct and morality of society with regards to the dignity and respect of
25
women. This court will be adding to the shame, emotional and mental injury
already suffered by the victim by failing to act judiciously in accordance with
the law.
[31] Guided by the decisions in Re Badri bin Abas [1971] 1 MLJ 202 and 30
PP v Mohamad Ramly [1974] 1 MLJ 95; [1973] 1 LNS 120 this court does not
find that the nature of the offence and the manner it was committed, justifies
the application of s 173A(2) of the CPC. There was a failure by the magistrate
to equally consider the need of protecting public interest in such offences. 35
Secretly intruding a woman's privacy and recording images of her in her
natural state is no trivial matter. As held by Mohamed Azmi J in
PP v Mohamad Ramly (supra):
40
The main question to be determined in this appeal is whether the present case falls
squarely and fairly within the terms of s. 173A(ii)(b) of the Criminal Procedure
Code. In my view, the learned magistrate failed to consider sufficiently the serious
nature of the offence committed and the deliberate manner in which the crime had
been perpetrated. Where the offence committed is not of a trivial nature and it is
committed with such degree of deliberateness, a case can rarely come within the
ambit of this section. In assessing sentence, a proper balance should be struck
between public interest and the interest of the accused. In the present case, it is
apparent from the grounds of judgment that the learned magistrate was too
preoccupied with the interest of the accused whilst giving no adequate
 Public Prosecutor v Harkirath Singh a/l Harbans Singh
[2023] 2 AMR Mohd Radzi Abdul Hamid J 519

1 consideration to public interest. The object of punishment is not only to punish the
offender but also to deter others.

[32] In Mohd Fairuz bin Ahmad v PP [2021] AMEJ 1882; [2021] MLJU 2453, the
court held:
5
[88] This is not a case of simple peeping offence. There are aggravating factors.
There was some degree of planning on the part of the Appellant using handphone
to video record the victims' private moments in the toilet and storing them in the
10 Appellant's laptop as Appellant's collections which could be replayed over and
over again. There was also a risk of circulation of these images to other third
parties. See: Public Prosecutor v. Tay Beng Guan Albert [2000] 3 SLR 785 and
Pendakwa Raya lwn Nor Hanizam bin Mohd Noor [2019] MLJU 638.
15 [89] Women should have the confidence and feel secured that their private
moments will not be observed while using and in the women's public toilet.

[90] For the protection of the public interest, there is a need to impose a custodial
20 sentence upon the appellant to make clear that the court abhors such behaviours
or would not treat it lightly so as to deter any such behaviours.

[91] A fine would not serve the purpose and would give an impression that such
perverse behaviours and conducts for which the appellant has been convicted of
25 the offence is trivial. A mere fine imposed would also encourage corruption of
mind of the would be offender to make-believe that he/she can buy out of such
offence when caught.

[92] There is no basis to impose upon the Appellant only a bond of good behaviour
30 under section 173A of the Criminal Procedure Code (Act 593). I do not think any
order under the section is appropriate having regards to the nature of the offence
committed by the Appellant for the reasons I have given earlier.

35 [33] For all those reasons this court is of the view that the magistrate
committed an error in making the order to discharge the respondent under
s 173A(2) of the CPC. The offences committed by the respondent do not fit the
purpose of s 173A(2). The rehabilitative approach taken by the magistrate
40 must be balanced with a deterrent approach in the particular facts of this
appeal. That deterrence must come in the form of a conviction under each of
the charges.
Decision

[34] The appeal is hereby allowed. The order of the magistrate is hereby set
aside and is substituted with the following:
(a) The respondent is hereby convicted for the offences committed under
s 509 of the Penal Code under the first and second charges under case
No. PA-82-19-12/2020;
520 All Malaysia Reports [2023] 2 AMR

(b) Having regard to the mental disorder suffered by the respondent and 1
the need for continued treatment, the respondent is released
pursuant to s 294 of the CPC on a probation of good behavior under
each charge for a period of two years subject to the execution of bond
in the amount of RM5,000 with one surety as per the original order of 5
the magistrate; and

(c) any default of this order by the respondent shall cause the respondent
to be sentenced according to sentence originally provided under s 509 10
of the PC.

15

20

25

30

35

40