23 Dec 2008

V. Anbalagan

SHAH ALAM: The High Court here has quashed the conviction and sentence of a former flight steward who was found guilty by a lower court of making and distributing a pornographic video compact disc.

Judicial Commissioner Na-llini Pathmanathan, in allowing the appeal by Mohd Rizal Mat Yusof yesterday, said the prosecution had failed to prove the basic ingredients of the charge.

Nallini said the prosecution failed to adduce evidence that Rizal was in possession of or used the required specialised equipment to transfer the lewd acts from his video cassette tapes to a VCD. "It would automatically follow that Rizal was incapable of distributing the VCD if he was unable to make it," she said, adding that the prosecution's witnesses themselves failed to draw a link between the obscene VCD and Rizal.

She said the conviction of Rizal, now 36, appeared to have been occasioned by a failure of justice and warranted interference at the appellate court. "Having considered all the circumstances of the case, it is my view that the finding of guilt and conviction of the accused (Rizal) by the trial judge was wrong," she said in her 21-page judgment.

On Dec 17, 2004, the Sessions Court in Klang found Rizal guilty of making and distributing an obscene VCD, which is an offence under the Penal Code. Rizal, represented by Rakhbir Singh, was alleged to have committed the offence at a house in Taman Sri Andalas, Klang, between 1999 and May 2003. He was sentenced to 18 months' jail but was on RM18,000 bail pending appeal to the High Court.

When the VCD, titled Kisah Pramagura Yang Terlampau (Extreme sexual acts of an air steward), was widely distributed in the Klang Valley sometime in the middle of 2003, it created an uproar as it revealed the identities of several women, including Rizal's wife, an air stewardess and two other women. There were five other women involved but their identities were not known.

Nallini said it was undisputed that Rizal had a sexual relationship with a stewardess at various times in different places and that he used his own video camera to record the acts.She said Rizal's wife had also testified that she, too, had consented to her husband recording scenes of their sexual intercourse. Nallini said the prosecution adduced no evidence that Rizal had made or produced the VCD. "The prosecution only produced evidence that Rizal recorded and participated directly in several scenes which were recorded on video cassette tape using a video camera which he operated with a remote control."

Nallini said there was no evidence that Rizal had transferred the contents of the video cassette tape of himself and the stewardess to a VCD. "Neither was any evidence adduced that Rizal had recorded the rest of the scenes on the VCD, nor that he had transferred those contents from any other VCD." Nallini said no evidence was produced to show that Rizal had possession of or utilised the required specialised equipment to effect such transfer.

Rizal said the High Court ruling was "fair and appropriate". "Justice has been done," said the father of two in a choked voice. Rizal hoped his ex-employer (Malaysia Airlines) would take him back following the court ruling. "I was terminated after the VCD surfaced in public."

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