The High Court has increased the custodial sentence for an Indonesian man who secretly recorded a woman in a toilet, holding that the original sentence of 10 weeks’ imprisonment was manifestly inadequate.
The ruling was delivered by Judicial Commissioner Muhammed Faisal PDJLD Colonel (Rtd) DSP Haji Kefli on August 4, in Criminal Appeal No. 26 of 2025.
The Public Prosecutor appealed against the sentence imposed by the Magistrate after the respondent, Adi Sutrio, pleaded guilty to an offence under section 509 of the Penal Code, Chapter 22, which criminalises, among other conduct, intentionally intruding upon the privacy of a woman.
The offence arose after the respondent deliberately used his mobile phone to secretly record the complainant while she was inside a toilet, without her knowledge or consent.
Before the Magistrate, the respondent received a starting point of four months’ imprisonment. After credit for his early guilty plea and other mitigating circumstances, he was sentenced to 10 weeks’ imprisonment.
The respondent had already completed the sentence and was repatriated to Indonesia before the appeal was heard. The appeal nevertheless proceeded in his absence after the Court was satisfied that reasonable efforts to serve him had been unsuccessful.
Deputy Public Prosecutor Nurul Husna Aqilah Abidin, appearing for the Public Prosecutor, argued that the sentence was manifestly inadequate and failed to reflect the seriousness of the offence.
The prosecution relied, among others, on Mohammad Ehsan Niezam bin Abdullah v Public Prosecutor, in which the Court of Appeal upheld a starting point of one year’s imprisonment for a section 509 offence.
The prosecution also referred to cases involving covert recording and argued that the use of technology to invade a woman’s privacy warranted a sufficiently deterrent sentence.
The High Court held that sentencing under section 509 cannot be reduced to a single fixed tariff because the provision covers a broad range of conduct, from offensive words and gestures to deliberate invasions of privacy.
However, the Court found that the present case was at the more serious end of that spectrum.
The Court emphasised that the respondent had deliberately used modern technology to secretly record the complainant in a toilet — a place where she was entitled to expect complete privacy.
The Court noted that a digital recording can create continuing harm because it can potentially be retained, copied, viewed repeatedly or disseminated, even where there is no evidence that it had actually been shared.
The Court stressed that general deterrence and denunciation were particularly important in such cases, and that courts must recognise the enhanced seriousness of technology-facilitated invasions of privacy.
The Court also clarified that Mohammad Ehsan Niezam bin Abdullah v Public Prosecutor did not establish a fixed sentencing tariff for all section 509 offences. Instead, sentencing must remain dependent on the facts and gravity of each individual case.
The High Court held that the Magistrate’s four-month starting point was manifestly inadequate and determined that 15 months’ imprisonment was the appropriate starting point.
After applying a one-third reduction for the respondent’s early guilty plea and mitigation, the appropriate sentence was 10 months’ imprisonment.
The appeal was therefore allowed and the original sentence was set aside.
As the respondent had already completed his 10-week sentence and returned to Indonesia, the substituted 10-month sentence had no practical effect on him personally. The Court nevertheless considered it important to determine the appeal in order to clarify sentencing principles for future section 509 cases.