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©New Straits Times (Used by permission)

PUTRAJAYA: The Court of Appeal has ruled that a deputy public prosecutor can help the trial judge determine the competency of a child of tender age to give evidence.

The court said this was because a specific procedure to be observed in such a situation was not proscribed by law.

The ruling is seen as guidance to High Courts and subordinate courts on how to handle child witnesses during a trial.

Section 133A of the Evidence Act only refers to a situation where a child of tender age who does not understand the nature of an oath is called as a witness.

The section states that in such a situation, the evidence may still be received though not given under oath if in the opinion of the court the child possess sufficient understanding and the duty of speaking the truth.

This issue was canvassed before the Court of Appeal on Jan 7 this year when the public prosecutor appealed against the decision of a High Court which set aside the conviction and sentencing on a businessman for performing unnatural sex on a 7-year-old boy.

On March 25, 2003, the Sessions Court in Ipoh sentenced Chan Wai Heng, now 52, to eight years' jail and 10 strokes of the rotan after finding him guilty of sodomising the boy between January and April 2002.

Judges Datuk Wira Mohd Ghazali Mohd Yusoff, Datuk Md Raus Sharif and Datuk Heliliah Mohd Yusof heard the appeal with the unanimous judgment delivered yesterday.

The court allowed the public prosecutor's appeal and Chan was arrested to begin the jail term.

Chan's counsel, Naran Singh, had submitted that it was wrong for the deputy public prosecutor to question whether the boy, then 9 years old, was competent to give evidence.

Naran had said that the defence should then also be given the opportunity to cross-examine the boy.

Deputy public prosecutor Jamhirah Ali had then submitted that it was lawful for the deputy public prosecutor to assist the court in posing questions to the boy as there were no specific procedures.

Heliliah, who delivered the judgment of the appellate court, said the trial judge had directed his mind to the requirements of section 133A before embarking on the process of permitting the prosecution to lead evidence on the acts committed on the boy by Chan.

"There is no merit in the contention of the counsel that the question must be posed by the Sessions judge himself as a prerequisite to the admissibility of the evidence," said Heliliah.

She also said evidence by three doctors, all prosecution witnesses, were consistent and corroborated the testimony of the boy.

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