The Court of Appeal acquitted celebrity preacher Da’i Syed of a 2019 rape charge in a 2-1 majority decision, allowing his appeal against a 10-year jail term.
PUTRAJAYA: A Court of Appeal judge has advised celebrity preacher Da’i Syed, whose real name is Syed Shah Iqmal Syed Mohd Shaiful, not to abuse his popularity or take advantage of vulnerable individuals.
Judge Datuk Azman Abdullah, who chaired a three-member panel, said exploiting individuals who were emotionally vulnerable could tarnish the reputation of those who projected a religious image.
“I would like to offer some advice to the appellant. This advice is not directed solely at you. We often come across cases involving rape, sodomy and similar offences occurring at pondok (religious) schools, allegedly committed by teachers…this reflects poorly on society,” he said.
Syed Shah Iqmal, 31, who was standing in the dock, was seen nodding as he listened to the judge’s remarks.
Earlier, in a 2-1 majority decision, Judges Datuk Azman Abdullah and Datuk Mohd Radzi Abdul Hamid acquitted and discharged Syed Shah Iqmal of a charge of raping a woman in 2019, while the third panel member, Judge Datuk Meor Hashimi Abdul Hamid, dissented and would have upheld the conviction and sentence meted out by the lower court.
The panel made the decision after allowing Syed Shah Iqmal’s final appeal against his conviction and sentence of 10 years’ imprisonment and three strokes of the cane, imposed by the Shah Alam Sessions Court.
After Judge Azman delivered the majority decision, Syed Shah Iqmal was seen weeping in the dock, while his wife, Hana Ismail, who was seated in the public gallery, was also seen crying.
On Dec 10, 2020, Syed Shah Iqmal pleaded not guilty to raping a 23-year-old woman at a condominium unit in I-City, Section 7, here, at about 1.35 am on Sept 11, 2019.
The charge was framed under Section 376(1) of the Penal Code, which provides for a maximum jail term of 20 years and whipping upon conviction.
On April 10, 2023, the Shah Alam Sessions Court acquitted and discharged him of the charge after ruling that the prosecution had failed to establish a prima facie case at the close of its case.
However, the Shah Alam High Court subsequently allowed the prosecution’s appeal and ordered Syed Shah Iqmal to enter his defence.
Justice Azman said there were serious errors in the findings of both the High Court and the Sessions Court, warranting the Court of Appeal’s intervention.
He noted that the conduct of the victim, who testified as the first prosecution witness (PW1), was inconsistent with that of someone who had been subjected to non-consensual sexual intercourse.
“There was no indication of anxiety, panic, immediate trauma, or distress on the victim’s part at the scene. Instead of attempting to escape, she stayed overnight at the appellant’s residence and only returned home the following day.
“Upon arriving home, PW1 sent the appellant a ‘Safely Arrived’ message via WhatsApp and Instagram, and the two continued communicating for several months thereafter.
“PW1 never expressed anger, resentment or sadness over the appellant’s actions that night. On the contrary, their messages showed that she initiated casual conversations, maintained contact and even sought to arrange further meetings with the appellant,” he said.
Justice Azman added that although the appellant did not deny having sexual intercourse with the victim, he maintained that it was consensual.
He also pointed out that the victim only lodged a police report on Nov 25, 2021, 441 days after the incident, after the appellant had begun showing less interest in her and stopped responding to her messages.
In view of these circumstances, the court could not accept the claim that the sexual intercourse had taken place under duress.
Justice Azman said the court had also examined the mental health condition of the first prosecution witness (PW1), who had a history of depression and had received psychiatric treatment.
He said PW1 had previously been diagnosed with depression accompanied by anxiety symptoms and was prescribed medication to treat the condition and stabilise her emotions.
However, the court held that factors such as PW1’s depression or naivety could not, in themselves, be relied upon to negate the existence of consent in the sexual encounter.
“Therefore, we are of the opinion that the defence has succeeded in raising reasonable doubt in the prosecution’s case. Consequently, the appellant’s conviction cannot be safely upheld.
“As the conviction is set aside, the prosecution’s cross-appeal seeking an increase in the sentence has become academic.
“Accordingly, we allow the appellant’s appeal and set aside the conviction and sentence of 10 years’ imprisonment and three strokes of the cane, which were imposed by the Sessions Court and subsequently affirmed by the High Court. The appellant is hereby acquitted and discharged of the charge under Section 376 of the Penal Code,” he said.
Meanwhile, in a separate judgment, Justice Meor Hashimi noted that the victim had been diagnosed with Major Depressive Disorder with Psychosis and Borderline Personality Disorder, conditions which, in his view, rendered her incapable of giving consent to the sexual encounter with the appellant.
“This indicates that the sexual intercourse between the appellant and the victim took place without the victim’s consent and was achieved through coercion. The appellant had taken advantage of the victim’s prolonged depression,” he said.
The judge noted that the victim’s continued messaging with the appellant after the rape incident indicated that she was not behaving normally, which he attributed to her prolonged depression.
He said the victim had been prescribed medication to treat personality disorders, hallucinations and suicidal ideation.
Judge Meor Hashimi dismissed the appellant’s appeal, ruling that it was without merit, and upheld the conviction and sentence imposed by the Sessions Court, which had subsequently been affirmed by the High Court.
“I also dismiss the prosecution’s appeal against the sentence, as I find it to be adequate, commensurate with the offence and not excessive, taking into consideration the public interest and the gravity of the offence committed by the appellant,” he said.
At today’s proceedings, the appellant was represented by lawyers Datuk M. Athimulan, Datuk Abu Bakar Isa Ramat and Mohamed Baharudeen Mohamed Ariff, while the prosecution was represented by Deputy Public Prosecutor Iznina Hanim Hashim.
