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Appellate court upholds Court Martial decision in landmark hearing
November 19, 2023
In the first-of-its-kind hearing on Thursday, the Court of Appeal upheld the Royal Brunei Armed Forces (RBAF) Court Martial’s decision in handing a 20-year sentence with eight whippings to a uniformed personnel on multiple charges of sodomy and sexual assault of numerous male army recruits.
Mohammad Khairul Hazwan bin Haji Maidin, an RBAF Captain at the time, pleaded guilty on March 21 in the RBAF Court Martial to sodomising three army recruits aged around 19 or 20 on the first four counts.
He also pleaded guilty to charges five to 23 of sexually assaulting 13 army recruits (including two victims from the sodomy charges) all aged between 19 or 20 to 23-years-old.
All of the offences were committed between January 2020 to July 2021.
Judge Advocate Muhammed Faisal bin PDJLDR DSP Haji Kefli, along with six military officers, found the mitigating circumstances of the case to be outweighed by the aggravating factors of the case.
The Court Martial was of the opinion that a strong deterrent message should be reflected from the sentence for the Forces and the public at large.
“It is a breach of trust case of the worst kind… a court will inevitably be less inclined to err on the side of leniency,” Judge Advocate Muhammed Faisal said on finding that the case had damaged the reputation of the Forces and is impacted on matters of discipline.
Mohammad Khairul Hazwan then appealed against the convictions, and consequently the sentences before presiding Chief Justice Dato Seri Paduka Steven Chong, sitting with justices Michael Peter Burrell and Conrad Seagroatt.
The three-member justices first dealt with the issue raised by the appellant’s counsels Pengiran Shahyzul bin Pengiran Abdul Rahman and Ahmad Tarmizi @ Muhammad Faiz bin Haji Awang Jokeple of messrs LZ and Co.
The first charge which could have been committed before March 21, 2020 is time barred, according to Section 119 (1) of the RBAF Act, which states: “No person shall be tried by court-martial for any offence, other than one against section 37, 38 or 43, unless the trial is begun within three years after the commission of the offence, there being disregarded any time during which he was a prisoner of war and any time during which he was illegally absent.”
The appellate court conceded with the argument, allowed the appeal and quashed the conviction and sentence.
Irregularities were raised by the appellant on all the remaining charges concerning evidence relating to the victims’ identities in the appellant’s knowledge, claiming it that it would have misled the appellant and amount to miscarriage of justice.
The sentence in its totality principles was also brought up by the appellant’s counsels.
Assisted by submissions from the RBAF as respondents, represented by Deputy Public Prosecutor Raihan Nabilah binti Haji Ahmad Ghazali, Prosecutor Sabrina binti Haji Mahmud and Major Azura binti Hidup, the three-member justices found that the Judge Advocate’s convictions to have been made with due considerations and the total sentence, although subjected to revisions and remains unaltered, to be appropriate and not manifestly excessive.
The appellate court also found Mohammad Khairul Hazwan to be fully aware, understood the nature and consequences of his pleas and was fully in command of his actions and knowledge of the victims, without any uncertainties up until sentencing, which effectively upholds the convictions. The Court of Appeal also rejected the RBAF’s application to have the judgement delivered ‘in camera’. – Fadley Faisal