SHAH ALAM, 22 Dec 2008: A former Malaysia Airlines (Mas) steward charged with producing a pornographic video compact disc (VCD) was acquitted and discharged today after the High Court here quashed his conviction and 18-month jail term.
The court, in allowing the appeal of Mohd Rizal Mat Yusuf, held that the finding of guilt and conviction by the Sessions Court four years ago was a failure of justice.
The main reason was the failure of the prosecution to prove that Rizal had made or produced the VCD, entitled “Kehidupan Seorang Pramugara Yang Terlampau” (The Excessive Lifestyle of a Steward), for the purpose of distribution and circulation.
Rizal, 36, was sentenced on 17 Dec 2004, to 18 months jail for making and distributing a VCD containing obscene sex scenes at No 12, Jalan Sri Banang, Taman Sri Andalas, Klang, between 1999 and May 2003.
Justice P Nallini, in her 21-page judgment, said that the prosecution witnesses had failed to draw a link between the obscene VCD and Mohd Rizal.
She said there was no direct evidence to show that Rizal made or produced the VCD as the evidence adduced by the prosecution only showed that he participated in several scenes and recorded on a video cassette tape using a video handycam, which he operated with a remote control.
“There was no evidence adduced to show that Rizal had transferred the contents of the video cassette tape onto a VCD. Neither there was evidence to show that he had possession of, or utilised the requisite specialised equipment to effect such transfer.
“If it had been considered whether a prima facie case had been made out on the evidence adduced during the course of the prosecution case, and if the requisite law had been applied to the defence case, it is unlikely that a decision to convict Rizal would have been reached.
“In these circumstances, the conviction of the appellant appears to have been occasioned by a failure of justice, warranting interference at the appellate level,” she said.
She said the grounds of judgment by the Sessions Court judge showed that a thorough examination and evaluation of the prosecution’s case was not carried out, but instead a thorough and comprehensive review was conducted on the defence.
“The effect of failing to maximally evaluate the prosecution’s case, but to subject the defence to a full and thorough examination is to reverse the burden of proof.
“Such a reversal of the burden of proof amounts to a substantive flaw resulting in a miscarriage of justice. The requirement in law that a maximal evaluation be carried out at the close of the prosecution’s case is not mere incantation but requires rigorous application,” she said.
Rizal, in his defence, had admitted recording his sexual activities with a fellow air stewardess on a video cassette tape using a video camera for his personal use.
He had said that when he broke off with the stewardess, he promised to destroy the tape and he did not transfer the contents to a VCD because he did not have the equipment to do so.
In his appeal, Rizal, represented by counsel Rakhbir Singh, said the trial judge had failed to consider that there was no evidence to show that he had made or produced the VCD and that he knew or possessed the requisite equipment to produce the VCD.
He also contended that the trial judge had failed to consider that all prosecution witnesses had confirmed that he could not have been involved in the sale or distribution of the VCD, as a consequence of which the element of distribution was not made out.
Outside the courtroom, Rizal, who covered his face with a handkerchief, leaving only his eyes exposed, told reporters that he was very relieved with the decision.
He said he covered his face because he had been sacked before because of the case. — Bernama
